R v Hansen, 2019 SKCA 60

Court of Appeal for Saskatchewan Docket: CACR3242 Citation: R v Hansen , 2019 SKCA 60 Date: 2019-06-03 Between: Garrett Rene Hansen Appellant And Her Majesty the Queen Respondent Before: Jackson, Barrington-Foote and Kalmakoff JJ.A. Disposition: Conviction varied, sentence varied (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On Appeal From: CRM 379/18 and 2019 SKQB 88 , Regina Appeal Heard: June 3, 2019 Counsel: Garrett Hansen on his own behalf Pouria Tabrizi-Reardigan for the Respondent Jackson J.A. [ 1 ] Mr. Garrett Hansen was convicted of mischief over $5,000, contrary to s. 430(3) of the Criminal Code . When Mr. Hansen’s appeal was heard, the Court dismissed his appeal from conviction and substituted a conviction for mischief, contrary to s. 430(4) of the Criminal Code . The Court set aside the sentence of five months and imposed a sentence of four months with written reasons to follow.

These are those reasons. [ 2 ] After Mr. Hansen had filed his appeal from conviction, the Crown conceded there was no admissible evidence proving the value of the damaged property exceeded $5,000. However, the Crown submitted there was admissible evidence demonstrating mischief under $5,000 and requested that the appeal should be allowed and a conviction for the lesser included offence be substituted. [ 3 ] The Crown’s concession engaged this Court’s powers under s. 686(1) (b)(

i) and s. 686(3) of the Criminal Code as follows: Powers 686(1) On the hearing of an appeal against a conviction … the court of appeal … (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment … . … Substituting verdict

(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and (

a) affirm the sentence passed by the trial court; or (

b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. (emphasis added) [ 4 ] Section 686(1) (b)(

i) and s. 686(3) of the Criminal Code are linked to the power conferred by s. 662(1) to convict an accused of a proven included offence: Offence charged, part only proved 662(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, the accused may be convicted

(

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included. [5] The legal issue presented by the circumstances of this appeal is whether Parliament intended that the included offence ofmischief under $5,000 can be considered a “part of the indictment” under s. 686(1)(b)(i). On this point, R v Nantais, (ON CA), [1966] 4 CCC 108 (WL) (Ont CA) [Nantais], is authoritative.

Justice Laskin (as he then was), speaking for the court,compared the newly enacted Criminal Code, SC 1953-1954, c 51 – dealing with appellate powers – to an earlier version contained in AnAct to amend the Criminal Code, SC 1923, c 41, s 9, as s. 1016 of the 1923 legislation (which was subsequently carried forward into theCriminal Code, RSC 1927, c 36).

The 1953-1954 Criminal Code was proclaimed in force on April 1, 1955. [6] Justice Laskin observed there could be “no other reasonable construction of the words ‘another count or part of indictment’”contained in the equivalent of s. 686(1)(b)(i), than that they encompass an included offence as long as the “verdict substituted is one that‘should have been found’” (at para 11).

Justice Laskin went on to say, “however broad or narrow [the power under s. 686(1)(b)(i)] mightbe, it must at least extend to a case where on appeal the court is satisfied that an element of the offence on which the conviction tookplace was lacking, and nonetheless the defective conviction carried a proper conviction of an included offence”. As the court in Nantaisindicated, this

interpretation of s. 686(1)(b)(

i) is reinforced by s. 662(1), which refers to the divisibility of a count. Nantais has been citedextensively in support of this proposition, including in R v Bellegarde, 2003 SKCA 95 at para 11, [2004] 5 WWR 459 [Bellegarde]. [7] The court in Nantais also considered the question of whether the proper order in such circumstances is to dismiss the appealand substitute a conviction for the included offence or to allow the appeal. The question is not one of semantics, but concerns a court’spowers and the rights of appeal of both parties.

As Laskin J.A pointed out in paragraph 11 of Nantais, an appeal court’s powers, as theyexisted in the 1923 Criminal Code, were modified by the 1953-54 Criminal Code such that the power to substitute now exists “onlywhere the court of appeal dismisses the appeal” under s. 686(1)(b)(i)] (which was s. 592(1)(b)(

i) of the 1953-54 version). After theenactment of the 1953-54 Criminal Code, as under the current legislation, when a court of appeal allows an appeal no authority exists tosubstitute a verdict. The current provision, which is s. 686(1)(

a) makes that point plain: Powers 686(1) On the hearing of an appeal against a conviction … the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice … . [8] This distinction between a court of appeal’s powers to dismiss an appeal and to allow an appeal was noted in Nantais andapproved in R v Biniaris, 2000 SCC 15 at para 16, [2000] 1 SCR 381: see also Regina v Corrier (1972), (NB CA), 7CCC (2d) 461 at 467; Regina v Ruggiero (1973), (ON CA), 9 CCC (2d) 546 (Ont CA) at 548 [Ruggiero]; R v D.(1984), (SK CA), 37 Sask R 84 (CA) at para 33 [Dupperon]; and Bellegarde at para 11. (I note in R v Crowe (1983), (SK CA), 23 Sask R 1 (CA), Hall J.A. for the court, in purported reliance on Ruggiero, said, “I would allow theappeal, quash the conviction of noncapital murder and substitute for it a verdict of guilty of manslaughter” (emphasis added, at para 46)).As the court said in Bellegarde, in relation to a similar statement, this must be considered inadvertence (at para 5). [9] That brings us to the question of sentence.

In his notice of appeal, Mr. Hansen, who has been self-represented throughout, didnot appeal his sentence. This is understandable. From his perspective, he believed he had a solid basis upon which to be acquitted,particularly in light of the Crown’s concession. In oral submissions, when it became clear to him that the Court intended to dismiss hisappeal and substitute a conviction for the lesser included offence of mischief under $5,000, Mr. Hansen indicated he wished to appeal hissentence as well as his conviction.

Since the Crown had addressed the question of sentence in its factum, and made no claim ofprejudice, the Court permitted Mr. Hansen to amend his notice of appeal orally, notwithstanding the lateness of his request. In makingthis order, it was noted that in Dupperon, after dismissing the appeal from conviction and substituting a conviction for the lesserincluded offence of assault, the court permitted the appellant to appeal his sentence, notwithstanding he had appealed his convictiononly.

Not related to procedure, that court ultimately dismissed the sentence appeal. [10] The Crown submitted that, on this occasion, as well, no adjustment should be made to the sentence. Crown counsel stressedthat this is not the first time Mr. Hansen has set out to damage correctional institution property. Indeed, this Court sustained a sentence of8.5 months less 2.5 months of pre-sentence credit for Mr. Hansen’s earlier conviction for one count of mischief under $5,000 fordamaging windows and a sprinkler at the Regina Correctional Centre (R v Hansen, 2017 SKCA (SentDig) 20). [11] For his part, Mr.

Hansen believes that a conviction for a lesser offence should result in a lesser sentence. While there is noprinciple to that effect, and Dupperon demonstrates that point, Mr. Hansen’s submission found favour with the Court. [12] In imposing the sentence that he did, the trial judge found that “the fact that Mr. Hansen deliberately set out to destroy thevideo-link to Prince Albert” was an aggravating factor (R v Hansen, 2019 SKQB 88 at para 38 [Sentencing Decision]). This aspect of thecircumstances of the case, however, forms part of the offence with which Mr.

Hansen was charged and would not normally beconsidered to be aggravating. The judge, however, was clearly correct to find Mr. Hansen’s “lengthy criminal record, and the fact that hehad previously been convicted and sentenced for destroying property” (at para 39) at the Regina Correctional Centre were aggravatingfactors. It was, however, an error to hold that the crime was victimless on the basis that “the property in question was contained in aprovincial correction centre” (at para 42). [13] The trial judge also correctly gave significant weight to the hardships that Mr. Hansen, as an Indigenous offender, has

encountered. He reviewed the principles of sentencing, including a succinct review of the restorative principles as they relate toIndigenous offenders. The Court takes no issue with the judge’s review of the law, except his statement that “the more violent andserious the offence committed, the greater the likelihood that terms of incarceration would be the same or similar for both Aboriginal andnon-Aboriginal offenders” (at para 26).

In R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], the Supreme Court clarified itslanguage in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], stating that the “application of the Gladue principles isrequired in every case involving an Aboriginal offender … and a failure to do so constitutes an error justifying appellate intervention”(Ipeelee at para 87).

The Supreme Court in Ipeelee specifically disapproved of a comparison between Indigenous and non-Indigenousoffenders and confirmed that no distinction is to be drawn between non-serious and serious offences when it comes to applying therestorative principles of sentencing (at para 86). [14] Notwithstanding what the trial judge found to be aggravating factors, the judge concluded on the “proportionality analysis,that Mr. Hansen’s moral culpability – like the gravity of the offence – lies at the lower end of the continuum for the indictable offence ofmischief” (Sentencing Decision at para 36).

It was significant to the trial judge that “when Mr. Hansen was commanded to stop smashingthe Plexiglass with the chair, get down on his knees, and place his hands behind his back, he complied. His anger was spent, and hesubmitted to whatever consequences might flow from his actions with little, if any, resistance” (at para 35). [15] While this Court is sentencing anew, nonetheless, some deference is owed to the trial judge’s underlying assessment of moralculpability and gravity of the offence. He was the judge interacting with Mr. Hansen extensively both during the trial and during thesentencing.

Based on the trial judge’s assessment of the evidence, we accepted his overall proportionality assessment and gave effect tothe fact of the lesser offence by imposing a sentence on Mr. Hansen of four months.