R v Kaiswatum, 2019 SKCA 7

Court of Appeal for Saskatchewan Docket: CACR2722 & CACR2880 Citation: R v Kaiswatum , 2019 SKCA 7 Date: 2019-01-22 Between: Colin Boyd Kaiswatum Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Schwann and Leurer JJ.A. Disposition: Appeal allowed in part (CACR2722); appeals dismissed (CACR2880) Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Schwann On Appeal From: 2015 SKQB 404 ; Provincial Court, Saskatoon Appeal Heard: October 18, 2018 Counsel: Kevin D. Hill for the Appellant Andrew S.

Davis for the Respondent Leurer J.A. I. Introduction [ 1 ] Colin Boyd Kaiswatum brings two appeals to this Court. [ 2 ] The first appeal arises from convictions in relation to a 2014 armed robbery. Mr. Kaiswatum abandoned an appeal from the convictions, but maintains an appeal in relation to the imposition of a sentence of nine years’ incarceration for his crimes. [ 3 ] The second appeal arises from events that occurred at the preliminary inquiry into these charges. Mr.

Kaiswatum was convicted of attempting to obstruct justice in relation to a communication with a testifying witness, for which he was sentenced to an additional ten months’ incarceration. Mr. Kaiswatum appeals this conviction and sentence. [ 4 ] In respect to the first appeal, my conclusion is that the sentencing judge committed an error in principle when he failed to give Mr. Kaiswatum credit on an enhanced basis of 1.5 days for each day spent in remand custody. Mr. Kaiswatum’s sentence in respect to the armed robbery and related offences must be adjusted accordingly.

In respect to the second appeal, no reviewable error was committed leading to Mr. Kaiswatum’s conviction and sentencing. My reasons follow. II. Sentence appeal Regarding the armed robbery and related convictions A. Background [ 5 ] On May 12, 2014, three individuals entered a Saskatoon bank. One man, later identified to be Mr. Kaiswatum, wearing a skull-like mask, hopped over the counter and struck a teller in the back of the head with a gun. Eventually, the trio took cash and fled. [ 6 ] Later that day, Mr. Kaiswatum entered a clothing store in North Battleford and stole an item of clothing.

The police were engaged and a high-speed chase ensued, led by a car driven by Mr. Kaiswatum at speeds of approximately 120 kilometers per hour, on streets where the limit was 50 kilometers per hour. Eventually, Mr. Kaiswatum abandoned his vehicle and was apprehended while trying to bury a bundle containing cash originating from the bank. [ 7 ] At the outset of trial, Mr. Kaiswatum pleaded guilty to dangerous driving ( s. 249(1) (a), Criminal Code ), possession of property (a car) obtained by crime ( s. 354(1) (a)), and theft ( s. 334 (b)).

The matter proceeded to trial on two charges: armed robbery ( s. 344(1) ) and masking his face with intent to commit an indictable offence ( s. 351(2) ). [ 8 ] Mr. Kaiswatum did not contest his involvement in the events in North Battleford, but denied participation in the robbery in Saskatoon. The jury heard evidence from numerous witnesses, including the two accomplices and Mr. Kaiswatum, who testified in his own defence. The jury found Mr. Kaiswatum guilty on both the robbery and masking charges. B. Decision of the sentencing judge ( 2015 SKQB 404 )

[9] The sentencing judge accepted as proven that Mr. Kaiswatum planned and directed the robbery, executed the same andstruck a bank teller in the back of the head with his pistol. [10] The robbery and its related events were not Mr. Kaiswatum’s introduction to criminal activity. Although only 31 years old atthe time of the commission of these offences, Mr.

Kaiswatum had 35 prior convictions, including for two robberies in 2005, for which hewas sentenced to five years’ imprisonment. [11] The sentencing judge determined the appropriate sentence for the offences of the armed robbery and face-masking to be eightyears’ incarceration, and for the possession of the stolen car, dangerous driving and theft to be one year of incarceration. The result wasthe imposition of an aggregate sentence of nine years. [12] The sentencing judge further held Mr.

Kaiswatum should be given credit for remand time of 18 months on a 1:1 basis,resulting in a net sentence left to serve of 7.5 years. C. Issues [13] This appeal raises two questions: (

i) Did the sentencing judge err by imposing a nine-year sentence? (ii) Did the sentencing judge err in refusing to give enhanced credit for the time Mr. Kaiswatum spent in remand? D. Analysis 1. Did the sentencing judge err by imposing a nine-year sentence? [14] At trial, Mr. Kaiswatum argued all charges arose out of a single criminal venture and an appropriate sentence would be fiveyears for all offences. Mr. Kaiswatum takes a slightly different position in this Court. He submits the sentencing judge placed excessiveemphasis on aggravating factors, while downplaying mitigating factors and, in particular, Mr. Kaiswatum’s reduced moral culpability inconsideration of s. 718.2(

e) of the Criminal Code and the principles articulated in R v Gladue, (SCC), [1999] 1 SCR688 [Gladue], as amplified in R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. However, instead of submitting that a five-yearsentence is appropriate, he argues a sentence of seven years of incarceration reflects an appropriate balancing of all sentencing criteria. [15] Crown trial counsel asked the sentencing judge to impose an aggregate sentence of 11 years. Before this Court, the Crownemphasizes Mr. Kaiswatum requires leave to appeal his sentence.

The Crown further observes that, if leave is granted, this Court’sability to intervene in the sentence actually imposed is circumscribed by the direction given in R v Lacasse, 2015 SCC 64, [2015] 3 SCR1089 [Lacasse]. Building from this, the Crown argues no error in principle is disclosed in the reasons of the sentencing judge, nor is thenine-year sentence demonstrably unfit. [16] This Court’s jurisdiction to interfere with a sentence imposed after trial is limited by the principles established in Lacasse,succinctly condensed by this Court in R v Lemaigre, 2018 SKCA 47 at para 3, as follows: ...

An appellate court should not interfere with a sentence unless (

a) the sentence is demonstrably unfit, or (

b) the sentencing judge erredin principle, failed to consider a relevant factor or overemphasized an appropriate factor and that error had an impact on the sentenceimposed. ... See also: R v L.V., 2016 SKCA 74 at para 74, [2017] 1 WWR 439. [17] Respectfully, neither criterion for interfering with the sentence imposed by the sentencing judge exists.

A review of therecord, the transcript of the sentencing hearing, and the decision of the sentencing judge reveals no error in principle, failure to consider arelevant factor, or erroneous consideration of an aggravating factor, justifying appellate intervention in this case. Nor can it be said thesentence is demonstrably unfit. I will briefly explain. [18] In his decision, the sentencing judge oriented himself to ss. 718, 718.1 and 718.2 of the Criminal Code. During his review ofmitigating factors he referenced Mr.

Kaiswatum’s age, membership in the Piapot First Nation, his minimal education, and his familybackground, including his difficulties in his upbringing, which included the poverty, violence and alcoholism following the attendanceby both of his own parents at residential schools. The sentencing judge made note that “[t]here is no doubt this upbringing and early lifeis a mitigating factor” and the principles set out in Gladue and Ipeelee “are applicable” (at para 17).

He continued: … The factors that appear to have affected his early years are parental dysfunction, family breakdown, alcoholism, family violence, andviolence directed against him. Imprisonment of Mr. Kaiswatum would operate to denounce these crimes within the community, but Ihave also considered sentencing options. There are really no options other than incarceration, as a minimum four-year sentence isprescribed by the Criminal Code given the circumstances of these offences. [19] The sentencing judge then reviewed the “numerous serious aggravating factors”. These included: (

i) Mr. Kaiswatum’sleadership role in planning and implementing the robbery; (ii) enlisting two vulnerable individuals as accomplices; (iii) the supply anduse of weapons; (iv) the use of physical violence and psychological damage to others; (

v) the use of a disguise; (vi) the fact the robberywas of a vulnerable institution; (vii) the dangers caused by the post-robbery flight; (viii) Mr. Kaiswatum’s significant criminal recordwith particular reference to the earlier armed robberies; and (ix) the timing of these offences vis-à-vis his recent release fromincarceration. All of the factors identified by the judge as aggravating are related to the gravity of the offence or Mr. Kaiswatum’s moralblameworthiness and were appropriately considered by the sentencing judge.

[ 20 ] The sentencing judge concluded his general review of the authorities with the following observations: [44] I have considered s. 718.2(e), and Gladue and Ipeelee . I appreciate and have duly considered the entirety of both cases, particularly what is set out at paragraph 93 of Gladue and paragraphs 59, 60 and 81 to 86 of Ipeelee . Here, there is no alternative to incarceration. These are serious offences, and the various factors to consider have already been set out above.

Defence counsel fairly and candidly acknowledged that there was no alternative to incarceration, by suggesting a global sentence of five years. I also appreciate that proper application of these principles of sentencing for aboriginal offenders can — but not always will — result in a sentence that is shorter than that received by a non-aboriginal offender in the same circumstances. [45] Here, the range for this type of robbery associated with the other four convictions in my view is five to ten years. As detailed above, there are very few mitigating factors and numerous aggravating factors.

A sentence toward, but not at, the top end of the range is called for. [ 21 ] Against this background, the sentencing judge observed that in this case “the primary sentencing objectives herein are denunciation and deterrence” (at para 50). He rejected the defence suggestion that a global sentence of five years was appropriate, observing that “Mr. Kaiswatum received that sentence for similar crimes years ago”, and “[his] time since then has been marked by further criminality”. He continued: [51] … Further, there is no indication that this offender has made any tangible efforts to curb his behaviour.

His pattern of behaviour throughout his adult life is that as soon as he is released from custody, he commits more crimes. When he said at his sentencing hearing that he respected the administration of justice, I do not believe him. His longstanding involvement in crime and the nature of his crimes belie any such respect. [ 22 ] On the other hand, the sentencing judge also rejected the Crown’s request for a global sentence of 11 years. He observed that he “carefully considered [Mr. Kaiswatum’s] personal circumstances including (and especially) the Gladue information provided”. In the course of his final

summary of Mr. Kaiswatum’s “present situation”, he emphasized that “Mr. Kaiswatum’s sentence must be proportionate to his responsibility for the offence. He is a highly culpable individual” (at para 53(c)). [ 23 ] The sentencing judge made note of the totality principle, to “avoid what might be termed ‘judicial piling-on’” (at para 53(d)).

Finally, he referenced what he described as the “local situation”, which he said included a “spate of such crimes”, although he said he “hasten[ed] to add this is only one of numerous factors” he considered (at paras 54 and 55). [ 24 ] All of the foregoing served as the foundation for the sentencing judge’s determination of sentence. My conclusion is that the sentencing judge gave due consideration to the gravity of the offences and Mr. Kaiswatum’s moral culpability in their commission. He demonstrated he was well aware of, and addressed, Mr.

Kaiswatum’s personal circumstances, including not only his lengthy criminal record but also those circumstances that engage s. 718.2 (

e) and the principles explained in Gladue and Ipeelee . The global sentence represents a proportionate response to the overall gravity of the offences and the overall moral culpability of Mr. Kaiswatum. While towards the upper end, the sentence itself is not outside the range of sentences imposed on similar offenders for similar offences committed in similar circumstances, and involving offenders with similar personal circumstances to Mr.

Kaiswatum. [ 25 ] In the result, I find no reviewable error on the part of the sentencing judge and I find no basis upon which to interfere with the imposition of a nine-year sentence, before consideration of time in remand custody. 2. Did the sentencing judge err in refusing to give enhanced credit for the time Mr. Kaiswatum spent in remand? [ 26 ] Mr. Kaiswatum argues his statutory right to release after serving two-thirds of any sentence imposed entitles him to credit on a 1.5:1 basis for the time spent in pretrial remand detention, pursuant to s. 719(3.1) of the Criminal Code .

The Crown takes the position, as it did below, that Mr. Kaiswatum did not lay a proper evidentiary foundation for anything more than credit on a 1:1 basis. It submits that such evidence as exists supports the sentencing judge’s conclusion, which is said to fall within the range of the acceptable exercise of discretion. [ 27 ] As reviewed generally in R v Summers , 2014 SCC 26 , [2014] 1 SCR 575 [ Summers ] , t here are both quantitative and qualitative reasons why courts often count each day spent in pretrial custody for more than one day spent serving the imposed sentence.

Quantitatively, under the Corrections and Conditional Release Act , SC 1992, c 20 [ CCRA ], parole becomes available to a federal inmate after one-third of the sentence has been served ( s. 120 ), and statutory release is available once two-thirds of the sentence has been served ( s. 127(3) ). However, a “sentence commences when it is imposed”: s. 719(1) , Criminal Code . Because of this, if a person convicted of an offence is only given credit on a 1:1 basis for time spent in remand, they can spend longer time in custody than if they had not engaged the trial process ( Summers at paras 24–27 ).

Qualitatively, “conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitation programs” ( Summers at para 2 ), often justifying the grant of credit for time served in remand on a greater than 1:1 basis. [ 28 ] In the Truth in Sentencing Act , SC 2009, c 29, Parliament introduced rules to guide the exercise of discretion by courts when adjusting for these qualitative and quantitative features of pretrial custody. Specifically, s. 719 of the Criminal Code was amended so it now reads as follows: Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 29 ] In Summers , the Supreme Court of Canada concludes “loss of access to parole and early release constitutes a ‘circumstance’ capable of justifying the enhanced credit” (at para 34).

The Court further instructs that “[t]he loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely” (at para 71). [ 30 ] Summers makes clear the grant of enhanced credit is not automatic but, instead, is an issue to be examined in the situation of each particular offender.

In this regard, Karakatsanis J. discusses the appropriate approach when considering a request for enhanced credit on a quantitative basis in slightly different terms than when considering it when requested on a qualitative basis. After rejecting the Crown’s argument that a sentencing judge is not positioned to assess an offender’s future conduct in prison and the likelihood of parole or early release for the purposes of making a quantitative assessment, she continues: [79] … The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention.

Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit . Of course, the Crown may respond by challenging such an inference .

There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. [footnote omitted] Similarly, if the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary.

A practical approach is required that does not complicate or prolong the sentencing process. [80] As well, when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender , but it will generally not be necessary to lead extensive evidence. Judges have dealt with claims for enhanced credit for many years. The conditions and overcrowding in remand centres are generally well known and often subject to agreement between the parties; there is no reason this helpful practice should not continue.

There is no need for a new and elaborate process — the TISA introduced a cap on the amount of enhanced credit that may be awarded, but did not alter the process for determining the amount of credit to apply. (Emphasis added) [ 31 ] Here, there is no basis to interfere with the determination by the sentencing judge that Mr. Kaiswatum had failed to show a basis for enhanced credit on the basis of qualitative features of his pretrial incarceration, simply because no evidence was led on the point.

However, in my respectful view, the sentencing judge committed an error in principle in his application of the onus and inference described in Summers , so far as a claim is staked on a quantitative basis. To understand this conclusion, it is necessary to step back and examine the details as to when a prisoner may be denied statutory release. [ 32 ] An offender serving time in federal custody has not just a claim, but a statutory entitlement, to release after service of two- thirds of his sentence. So far as is immediately relevant to this appeal, s. 127 of the CCRA states as follows: Entitlement 127

(1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this

section and to remain at large until the expiration of the sentence according to law. … Sentence for future offences

(3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence. (Emphasis added) [ 33 ] These provisions admit of circumstances where a prisoner may be deprived of the statutory entitlement to release, but they are tightly prescribed.

In R v Wilton , 2016 SKCA 131 at para 51 , Caldwell J.A. succinctly summarized the rather complex provisions of the CCRA when he observed offenders are entitled to statutory release unless “the offender is likely to commit an offence causing death or serious harm to another person, a sexual offence involving a child, or a serious drug offence before the expiration of the offender’s sentence according to law”.

In Ewanchuk v Canada (Parole Board) , 2017 ABCA 145 , 355 CCC (3d) 418, the Alberta Court of Appeal similarly observed as follows: [8] The test in ss 129 and 130 of the CCRA allows the Board to order the continued detention of a serving prisoner past his statutory release date under s 127 where the Board is satisfied that “the offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender’s sentence according to law”. [ 34 ] The narrowness of the exceptions to statutory release provides context for the analysis of enhanced credit on a quantitative basis.

Several cases illustrate this point. [ 35 ] In R v Slack , 2015 ONCA 94 , 125 OR (3d) 60 [ Slack ], an offender appealed the decision of the sentencing judge to refuse to grant enhanced credit based on his institutional misconduct. The sentencing judge reviewed the three previous misconducts on the offender’s record during his time in custody and inferred the offender would not be receiving early parole or statutory release ( Slack at para 4 ).

In overturning the sentencing judge’s decision, the court stated: [15] There is no dispute that enhanced credit for pre-sentence custody may be denied when detention was a result of an offender’s

bad conduct, or where it is likely that the offender will not obtain either early release or parole: Summers at para. 71 . [16] However, unlike provincially-incarcerated offenders who “earn” statutory remission for good behaviour, under s. 127(3) of the CCRA , a federal offender is entitled to statutory release after he or she has served two-thirds of their sentence unless the National Parole Board makes a contrary order in accordance with the CCRA . The entitlement to statutory release is not discretionary, nor is it conferred by the Parole Board.

Further, the authority to deny statutory release is narrow : statutory release may be denied only where it is determined at a detention hearing that the offender, if released, is likely to commit an offence causing harm or death, a sexual offence involving a child, or a serious drug offence listed in

Schedule II to the CCRA : CCRA ss. 129 and 130 . (Emphasis added) [ 36 ] The court in Slack concluded, at paragraph 19 , the evidence of the appellant’s institutional misconduct did not reasonably support the inference he would likely be denied parole or statutory release based on bad conduct. [ 37 ] In R v Boutilier , 2018 NSCA 65 , 30 MVR (7th) 31 [ Boutilier ], the court overturned the sentencing judge’s refusal to grant enhanced credit on the basis of the offender’s long criminal record, his proclivity to immediately reoffend on release, and his poor behavior during his periods of incarceration (at para 10).

The court disagreed with the sentencing judge, and determined not granting enhanced credit would essentially be punishing the offender twice for the same offences since he had previously been convicted and punished for all of the listed offences and misconduct (at paras 11 and 21–22). [ 38 ] It is necessary, as well, to distinguish the likelihood a person may reoffend, or violate the conditions of release, from the circumstances that deprive the individual of statutory release.

This point is made in R v Bonneteau , 2016 MBCA 72 , 330 Man R (2d) 139 [ Bonneteau ], where the court reversed the trial judge’s decision to not grant enhanced credit for the following reasons: [21] In the circumstances of this case, we do not agree that enhanced credit should be denied on either basis. [22] First, the accused’s total sentence included a three-month consecutive sentence for his failure to comply with his recognizance.

To deny him enhanced credit on the basis of having committed further offences while on a recognizance would, to some extent, punish the accused twice. [23] Second, if the accused breaches the conditions of his release, the consequences of that breach will be determined by the Parole Board. See the Corrections and Conditional Release Act,

section 135 . In our view, it is not necessary for us to attempt to address the prospect of a future breach now by a denial of enhanced credit. [24] For these reasons, we are of the view that the accused should be credited at a rate of 1.5:1 for his 17 months of PSC. (Emphasis added) [ 39 ] Although the onus is on the offender to demonstrate he should be awarded enhanced credit ( Summers at para 79 ), in most cases that onus can be discharged by evidence of pre-sentence detention.

Since it is only in narrow circumstances an accused will not receive statutory release, to deny an accused’s claim to enhanced credit the Crown must rebut the inference arising from pre-sentence detention that the offender has lost eligibility for parole or early release, or establish another basis for denying enhanced credit (which was not advanced in this case). In the circumstances of this case, to rebut the inference Mr.

Kaiswatum would receive statutory release, there must be something on the existing record, or evidence at the sentencing stage, to create a basis for the conclusion the conditions for statutory release would not exist. Nothing on the record speaks to this. To the contrary, the record, such as it is, is that Mr.

Kaiswatum has consistently been given statutory release, after his many previous convictions. [ 40 ] The sentencing judge made reference to the absence of evidence speaking to issues of sentence remission and parole eligibility, stating as follows: [76] Here, there is nothing before me other than counsel’s assertions, which do not even mention any remission or parole issues . The record from Provincial Court indicates that his remand was by consent in all instances, even when represented by (prior) counsel. There is no evidence upon which I might conclude that Mr.

Kaiswatum’s ability to obtain remission or parole is impaired during his remand time, nor was that even argued by his counsel. Given his record, which includes four parole violations and the commission of offences in each case of such release , I cannot reasonably conclude that Mr. Kaiswatum will, or even will likely , obtain early release. Obtaining same is not automatic ( R v Mulholland , 2013 YKSC 77 ). (Underlining in original, italics emphasis added) [ 41 ] It appears the sentencing judge denied enhanced credit largely on this reasoning.

While he also cited Summers , the sentencing judge relied mostly on the decision of the Ontario Court of Appeal, without examining the comments of Karakatsanis J. respecting the inference that arises when an accused spends time in custody prior to sentencing, nor did he consider the circumstances when statutory release can be refused pursuant to the CCRA . [ 42 ] I add, for completeness, there is also no suggestion Mr.

Kaiswatum should be denied enhanced credit on account of bad behaviour while in remand, as discussed in Boutilier at paras 18–19 , or that he attempted to “game the system” to accrue additional enhanced pre-sentence credit, which may be a basis to deny enhanced credit, as discussed in R v Hussain , 2018 ONCA 147 at para 22 , 140 OR (3d) 593 . [ 43 ] The error in principle manifest in the sentencing judge’s reasons invites us to substitute our discretion with that exercised below. [ 44 ] I would therefore allow the appeal to the extent that Mr.

Kaiswatum shall be entitled to credit against the nine-year sentence imposed on the basis of 1.5 times by the number of days actually spent in pre-sentence custody.

III. APPEAL RELATING TO The Attempt to ObstructJustice A. Background [45] One of Mr. Kaiswatum’s accomplices to the armed robbery was a young offender. This accomplice, who had pleaded guilty tocharges arising from the armed robbery, was called to testify at Mr. Kaiswatum’s preliminary inquiry from a soft room. Just prior to theaccomplice’s testimony, Mr. Kaiswatum asked if the witness could see the courtroom and was advised that he could not. At the point inthe testimony when the accomplice was asked to identify Mr. Kaiswatum, Mr.

Kaiswatum was heard to utter a loud sound, described byone witness as an “animal call”, prompting an acknowledgement from the accomplice. The presiding judge immediately expressed thathe was “concerned with any kind of outbursts”, in response to which Mr. Kaiswatum said he had “something in [his] chest”. [46] Prior to the occurrence, the accomplice was able to recount events. After this exchange, his approach to his testimonychanged.

The Crown fairly characterizes matters when it says “the witness appeared to no longer have knowledge of the events he hadjust been testifying about” and “[h]e repeatedly invoked bad eyesight”. [47] At the trial, the judge heard from two witnesses who described the events in court. The first was a constable, serving on the“Guns and Gangs Unit” of the Saskatoon Police Service, who was in court to deter witness intimidation. The second was a deputy sheriffwho was also in court at the time.

The witnesses’ description of events was supplemented by a copy of the transcript of the accomplice’stestimony and an audio recording of the evidence. B. Trial decision [48] With respect to the sound made by Mr. Kaiswatum, the trial judge concluded there was “no possible explanation, no possiblerational explanation, except that Mr. Kaiswatum was trying to interfere with the proceedings”. He went on and said: It strains credulity to suggest that his noise was for any purpose except to attempt to obstruct or pervert the proceedings. I note at thetime that Mr. Kaiswatum suggested he was clearing his throat.

Listening to the recording, that is obviously a lie and it makes it evenclearer that what he did was for an inappropriate purpose. ... [49] On this basis, the trial judge concluded “there [was] no doubt at all in [his] mind” that Mr. Kaiswatum had the requisitespecific intention to commit the offence, and found Mr. Kaiswatum guilty. He imposed a sentence of ten months, to be servedconsecutively with any existing sentence. C. Issues [50] This appeal also raises two issues, as follows: (

i) Is the conviction unreasonable or unsupported by the evidence? (ii) Did trial judge err by ignoring relevant sentencing principles or by imposing a sentence that was demonstrably unfit? D. Analysis 1. Is the conviction unreasonable or unsupported by the evidence? [51] Mr. Kaiswatum invokes s. 686(1)(a)(

i) of the Criminal Code as the basis for this Court to set aside the trial verdict (theverdict was unreasonable and cannot be supported by the evidence).

Specifically, he argues the trial judge “made an unreasonable andincorrect inference that the call was meant to interfere with the proceeding, based on no evidence of such intention”. [52] R v R.P., 2102 SCC 22, 2012 SCC 22 , [2012] 1 SCR 746 [R.P.], provides the applicable standard of review, asfollows: [9] To decide whether a verdict is unreasonable, an appellate court must ... determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge … (Authorities omitted) [53] The sole issue at the trial was whether the Crown had proven the necessary mens rea to make out an attempt to obstructjustice. The Crown conceded it was required to prove Mr.

Kaiswatum verbalized a sound with the specific intention to obstruct, pervertor defeat the course of justice, in keeping with the decision of this Court in R v Yazelle, 2012 SKCA 91, 399 Sask R 249 [Yazelle], whichexplains the mens rea required to prove the offence of obstruction of justice: [4] The Crown does not dispute that obstruction is a specific intent offence. While it had initially submitted that, in this case, themens rea of the offence of obstruction is manifest upon proof of the actus reus of the offence, the Crown agreed in oral argument that

the requisite mens rea requires proof of an intention to obstruct justice, not just an intention to do

an act which has the effect ofobstructing justice (see: R. v. Beaudry; R. v. Abdullah, 2010 MBCA 79, 259 C.C.C. (3d) 193, at paras. 38-39; and R. v. Esau, 2009SKCA 31, 324 Sask. R. 95). … (Emphasis added) [54] Although it is correct to say there is no direct evidence of Mr. Kaiswatum’s specific intention, there was most certainlyindirect evidence, in the totality of the circumstances, from which the trial judge could infer Mr. Kaiswatum’s intention, as he did. Thesecircumstances included the initial inquiry made by Mr.

Kaiswatum as to whether the accomplice could see the courtroom, the nature ofthe sound itself, and the implausible explanation for that sound offered by Mr. Kaiswatum when challenged about it. [55] In R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, the Supreme Court addressed circumstantial evidence and made thefollowing statements: [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on infer​ences drawn from proven facts”: see R. v.

McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p.479, aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4,[2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14C.R. (7th) 149, at para. 28.

Requir​ing proven facts to support explanations other than guilt wrongly puts an obligation on an accused toprove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by consider​ing all of the evidence. The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonableinferences other than guilt, the Crown’s evidence does not meet the standard of proof be​yond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evi​dence or the absence of evidence, not onspeculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. (Underlining in original, italics emphasis added) [56] Here, the trial judge found that there was no “possible rational explanation” for the utterance other than Mr. Kaiswatum wasintending to obstruct the proceedings and Mr. Kaiswatum’s explanation was a “lie”.

Although not referenced, the trial judge expressedthis conclusion with an evident eye to the case law just reviewed as to when circumstantial evidence is sufficient to establish proofbeyond a reasonable doubt. [57] There is nothing remarkable in a trier of fact drawing an inference that an accused had the necessary mens rea based on thevoluntary commission of the actus reus, along with any other circumstances that may be relevant.

In R v Abdullah, 2010 MBCA 79, 323DLR (4th) 275, the court observed as follows: [51] The specific intent of attempting to obstruct justice often must be inferred from the conduct of an accused and its surroundingcircumstances. This inference is easily made where the conduct at issue is obviously detrimental to the administration of justice. … [58] The trial judge rejected, as not credible, Mr. Kaiswatum’s explanation for the noise he made and then, in the totality of thesurrounding circumstances, found Mr. Kaiswatum had the intent to obstruct justice.

There is no basis, within the strictures of R.P., tointerfere with the trial judge’s decision in this regard. I therefore dismiss Mr. Kaiswatum’s appeal from his conviction for attempting toobstruct justice. 2. Did trial judge err by ignoring relevant sentencing principles or by imposing a sentence that wasdemonstrably unfit? [59] At trial, the Crown argued the nature of the offence, aimed at “perverting and defeating the course of justice”, called for thecourt to take a “strong approach, so far as trying to prevent through the sentencing principle of denunciation and deterrence”. The Crownalso emphasized Mr.

Kaiswatum’s lengthy criminal record, which included a related conviction for perjury. On these bases, the Crownasked the trial judge to impose a sentence of 12 months of incarceration, consecutive to the sentence previously imposed. On the otherhand, Mr. Kaiswatum’s counsel made no particular submission as to the length of sentence, but instead argued it should be servedconcurrently with that imposed for the armed robbery and related convictions. His counsel offered significant representations respectingMr. Kaiswatum’s personal history and circumstances relevant to the application of Gladue principles.

[ 60 ] The trial judge rejected the appropriateness of a concurrent sentence. He observed the offences were not related, other than by the fact the obstruction of justice occurred in the course of the proceedings leading to the previous convictions. He observed that a concurrent sentence would not deter a person facing a charge from attempting to obstruct the criminal proceedings. However, the trial judge also agreed the operation of Gladue factors must be considered.

In the end, he balanced all of these factors, and imposed a sentence of ten months’ incarceration, to be served consecutively to the existing sentence. [ 61 ] In this Court, Mr. Kaiswatum abandoned the submission that the sentence be served concurrently with the sentence for the other offences, but argued the ten-month sentence was inappropriate. His submissions were cast in various ways, but in the end were rooted in an alleged failure by the trial judge to properly consider Gladue factors.

Significantly, he did not argue that absent application of these factors, a sentence of 12 months, argued for by the Crown at trial, was out of step with precedent. [ 62 ] Although the trial judge’s reasons, delivered orally, are brief, they are properly understood in the context of the submissions that immediately precede them. His reasons demonstrate he had an eye to the proper principles, including s. 718.2 (e), when he weighed Mr. Kaiswatum’s personal circumstances as a mitigating factor. [ 63 ] Absent any error in principle on the part of the trial judge, Mr.

Kaiswatum’s invitation is for us to do precisely what the Supreme Court cautioned in Lacasse an appellate court must avoid, namely substitute our view for that of the trial judge ( Lacasse at para 11 ). [ 64 ] As a result, I would dismiss Mr. Kaiswatum’s appeal from sentence in connection with his conviction for attempting to obstruct justice. IV. CONCLUSION [ 65 ] Mr. Kaiswatum is granted leave to appeal from the sentence imposed in respect to the armed robbery and related offences. Mr.

Kaiswatum is entitled to credit on an enhanced basis of 1.5 days for each day spent in remand custody prior to his sentencing for these offences and his sentence will be adjusted accordingly. Otherwise, I would dismiss his appeals. “Leurer J.A.” Leurer J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Schwann J.A.” Schwann J.A.