R v Noltcho, 2021 SKCA 113

Court of Appeal for Saskatchewan Docket: CACR3435 Citation: R v Noltcho , 2021 SKCA 113 Date: 2021-08-25 Between: Ricky Jake Noltcho Appellant And Her Majesty the Queen Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Tholl On appeal from: CRM 42 of 2019 (Sask QB), Battleford Appeal heard: July 8, 2021 Counsel: Ricky Noltcho on his own behalf Andrew Davis for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] Ricky Noltcho appeals the sentence imposed after his conviction on charges that he committed an aggravated assault, contrary to s. 268(2) of the Criminal Code , that he uttered a death threat contrary to s. 264.1(1) (

a) and that he committed a breach of an undertaking contrary to s. 145(5.1) (now repealed): R v Noltcho (23 February 2021) Battleford, CRM 42 of 2019 (Sask QB) [ Sentencing Decision ]. Mr. Noltcho does not appeal his convictions. [ 2 ] For his crimes, Mr. Noltcho was sentenced to serve 58 months of incarceration, less 36 months’ credit for time served in pretrial custody, to be followed by a period of probation of two years. Mr.

Noltcho raises several arguments as to why this sentence is excessive. [ 3 ] This Court can intervene to vary a sentence only if the sentencing judge made an error in principle that impacted the sentence or if it is demonstrably unfit. I see no error in principle by the sentencing judge. I also do not find the sentence to be demonstrably unfit. I would, therefore, dismiss Mr. Noltcho’s appeal. II. BACKGROUND A. The offences [ 4 ] On November 6, 2018, Mr. Noltcho went to the home of A.O. to drink. After a period of drinking, Mr. Noltcho went to sleep on A.O.’s couch. Mr. Noltcho woke up about ninety minutes later.

He accused A.O. of stealing money from him while he had been asleep, an allegation A.O. denied. Mr. Noltcho “came at” A.O. A.O.’s next recollection is of receiving care at a medical clinic. Other evidence disclosed that Mr. Noltcho had kicked A.O. repeatedly, in the head and body. The judge found that A.O. suffered significant injuries, requiring “nine or ten” stitches to close his wounds, and that he still bears scarring above his brows and forehead because of the assault. A.O. also testified that his side was sore for about a month. The judge concluded, based on all the evidence, “that Mr.

Noltcho assaulted [A.O.], and that the severity of the assault placed it squarely within the category of aggravated assault”. [ 5 ] The second conviction related to threats made by Mr. Noltcho to one of the attending police officers during the drive from A.O.’s residence to the police detachment. During transport, Mr. Noltcho made multiple threats to Corporal Colin Marco, including that he would shoot him in the head. It was admitted at trial that the necessary elements of an offence of knowingly uttering a threat to Cpl.

Marco to cause death to him had been proven and, on this basis, the judge found him guilty of an offence contrary to s. 264.1(1) (

a) of the Criminal Code . [ 6 ] It was conceded by Mr. Noltcho that, at the time of these events, he was on release subject to an undertaking to abstain from the consumption of alcohol, and that this undertaking had been breached. On this basis, he pleaded guilty to a breach of s. 145(5.1) (now repealed) of the Criminal Code . B. Sentencing Decision [ 7 ] The judge imposed a sentence of 50 months of incarceration for the aggravated assault, 8 months consecutive for uttering threats and a sentence of 3 months in custody, to be served concurrently, for the breach of undertaking. With credit for time in pretrial

custody, this left 22 months to be served. The judge ordered that, upon Mr. Noltcho’s release, he serve a two-year period of probation. Theprobation order includes several conditions, including that he: (

a) keep the peace and be of good behaviour; (

b) live at a residenceapproved by his probation officer and notify the court or probation officer in advance of any change in name or address or change ofemployment or occupation; (

c) observe a curfew for nine months; (

d) not possess or consume alcohol or drugs; and (

e) participate inassessments and complete programming for addiction as directed by his probation officer. III. ISSUES [8] As mentioned, an appellate court can intervene to vary a sentence only if the sentencing judge has made an error in principlethat has had an impact on the sentence or if the sentence is demonstrably unfit: R v Friesen, 2020 SCC 9 at paras 25–26, 444 DLR (4th) 1[Friesen]; and R v Lacasse, 2015 SCC 64 at paras 41–48, [2015] 3 SCR 1089 [Lacasse]. [9] Mr.

Noltcho’s notice of appeal raises as grounds that he “feels the length of his sentence is excessive” and that he “does notagree with probation because he does not have a residence arranged following his release and will be breached”. In oral argument,Mr. Noltcho explained his personal history and circumstances and provided his perspective on his history with the criminal justice system. [10] Having heard Mr. Noltcho’s oral submissions, in my respectful view, his appeal is properly decided by considering thefollowing four questions: (

a) Did the judge err in principle by inadequately accounting for Mr. Noltcho’s circumstances as an Indigenous offender? (

b) Did the judge err in principle by misapprehending the relevance of the gap in Mr. Noltcho’s criminal record for offencesinvolving violence? (

c) Did the judge err in principle by making a probation order? (

d) Was the sentence demonstrably unfit? IV. ANALYSIS A. Did the judge err in principle by inadequately accounting for Mr. Noltcho’scircumstances as an Indigenous offender? [11] In R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], the Supreme Court mandated that sentencing judges payparticular attention to the systemic and background factors that are unique to Indigenous offenders. This is required, in part, becauses. 718.2(

e) of the Criminal Code directs that sentencing judges pay “particular attention to the circumstances of Aboriginal offenders”(emphasis added). More generally, it must be done because the unique systemic or background factors which too frequently play a

part inbringing Indigenous offenders before the court bear on the moral culpability of those offenders, thus making relevant the fundamentalprinciple that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1). [12] This Court has provided guidance on the sentencing of Indigenous offenders in many decisions, including: R v Ratt, 2021SKCA 7, leave to appeal to SCC refused, [Ratt]; R v Charles, 2021 SKCA 75, [2021] 7 WWR 734; R v Kishayinew,2021 SKCA 32; R v J.P., 2020 SKCA 52, 62 CR (7th) 328; R v McKay, 2019 SKCA 129; R v Delorme, 2017 SKCA 3; R v Whitehead,2016 SKCA 165, [2017] 5 WWR 222; R v Chanalquay, 2015 SKCA 141, [2016] 4 WWR 242; and R v Standingwater, 2013 SKCA 78,[2013] 10 WWR 277. [13] Mr.

Noltcho’s argument that the sentencing judge failed to adequately account for the circumstances that brought him to courtwas made without reference to any specific principles discussed in Gladue and other cases to which I have referred. Based on my reviewof the Sentencing Decision, I am satisfied that the sentencing judge identified and correctly applied the relevant principles. [14] The judge began her sentencing decision by recapping the facts that she had found in her conviction decision (R v Noltcho (9December 2020) Battleford, CRM 42 of 2019 (Sask QB)).

She then summarized the objectives and key principles of sentencing, as setforth in ss. 718, 718.1 and 718.2 of the Criminal Code, and observed that, “because Mr. Noltcho is Indigenous,

Section 718.2(

e) of theCriminal Code and the Gladue principles that have emerged out of that

section come into play”. [15] The judge acknowledged the direction given in Ratt at paragraph 63 that, “where the person before the Court is Indigenous,sentencing judges must apply the principles from Gladue, even in cases involving serious offences of violence, because the systemic andbackground factors that have played a role in bringing the offender before the court may have a mitigating effect on moralblameworthiness or affect the proper balance of sentencing objectives in the pursuit of a fit sentence” (citing Friesen at para 92).

She thenquoted the following passage from Ratt: [64] … this does not mean that the primary focus must, or even necessarily should, be on rehabilitation when sentencing an Indigenousoffender. Nor does it mean that s. 718.2(

e) and the approach mandated by Gladue and Ipeelee … prevent sentencing judges fromemphasizing sentencing objectives such as separating offenders from society for the purpose of public protection in appropriate cases. … [16] Following this discussion, the judge turned to Mr. Noltcho’s personal circumstances. She noted that, at the time of sentencing,he was 48 years of age and had lived most of his life in Dillon, Saskatchewan. She recognized that Mr. Noltcho had attended Indian DaySchool where he suffered abuse at the hands of the principal and that his grandfather pulled him out of school because of that abuse.

As aresult, Mr. Noltcho has only a grade 7 education, although he did pursue some further education after a 2011 conviction. The judgedescribed Mr. Noltcho’s childhood as being marred by violence and alcohol. His mother was largely out of his life and he knew little of his

father, who was jailed and stabbed to death when Mr. Noltcho was a young child. His grandfather, who attended residential school, had a significant drinking problem and died unexpectedly when Mr. Noltcho was 17 years old. [ 17 ] From all of this, the judge concluded that “[e]ven though it’s not necessary for Mr. Noltcho to establish a direct link between his circumstances as an Indigenous man to the offences that he has been convicted of, the Gladue factors are not entirely remote in his life”. She added that it took “no stretch of the imagination to infer that Mr.

Noltcho’s problems with alcohol can be traced back, at least in part, to his negative experiences as an Indigenous man”. She found that there was “clearly a connection between Mr. Noltcho’s criminal history and alcohol” and that “his criminal activity has, to a large extent, been fueled by his alcohol addiction”. Given all of this, she stated that, “[i]n short, the Gladue factors have been operated -- operative in Mr.

Noltcho’s life” and she “consider[ed] them within the matrix of sentencing factors”. [ 18 ] After completing this analysis, the judge turned to other sentencing considerations, including the impact of the offence on A.O. and Mr. Noltcho’s criminal record. She conducted an extensive review of other sentencing decisions.

Following all of this, the judge brought her analysis together and fixed what she considered to be a fit sentence, stating as follows: More an art than a science, the sentence that I hand down must be carefully molded and crafted to be fit and just in the circumstances of this case, and it must be molded and crafted in the unique and particular circumstances of the offences of which Mr. Noltcho has been convicted.

Having balanced the circumstances of the offences and the mitigating and aggravating and Gladue factors that I’ve already outlined, I’m satisfied that a lengthy custodial sentence is necessary in order to satisfy the principles of sentencing, and, in particular, the principles of deterrence and denunciation, and the overarching need to ensure the protection of the public. Although I’ve considered the principle of rehabilitation and the principle of restraint, and I’ve applied the Gladue principles, protection of the public must be paramount in this case.

The defence’s suggestion that would lead to a situation of time-served is untenable and flies in the face of the circumstances of the offences of which Mr. Noltcho has been convicted. Quite simply, the Court cannot sacrifice public protection upon the alter of rehabilitation in the circumstances of this case. Rather, as in the Ratt decision, this case calls out for public protection as the focal point of the fit and just sentence. As I said earlier with respect to the aggravated assault, I find that the most analogous decision is the Ratt decision, in which the Court imposed a five-and-a-half-year sentence.

I’ve utilized that as my guidepost when striving to achieve parity. I’ve considered the severity of the attack, the lasting physical and mental impact upon [A.O.], and Mr. Noltcho’s disturbingly extensive criminal history. I find that a custodial sentence of 50 months is appropriate. With respect to uttering threats, unquestionably, the threats made by Mr. Noltcho were of significant violence. Indeed, the most serious of violence. An actual death threat. However, I also note that the tone of Mr. Noltcho’s threats was less so. He was not yelling, and it seemed, from the audio, that he was fading in and out.

This is not to understate the seriousness of uttering threats against a police officer. Indeed, it cannot be condoned. However, Mr. Noltcho’s tone when making the threats does provide relevant context to me. I consider a custodial sentence of 8 months appropriate. In addition, I find that the uttering of the threats to Corporal Marco was separate and distinct from the aggravated assault against [A.O.], and I’m imposing this sentence on a consecutive basis.

With respect to the breach of undertaking, three months in custody is appropriate, to be served concurrently. [ 19 ] After this analysis, the judge noted that this resulted in a global sentence of 58 months in custody. She then deducted from this credit for Mr. Noltcho’s pretrial detention and concluded that a net sentence of 22 months’ incarceration was left to be served. Finally, the judge directed that Mr. Noltcho serve a two-year period of probation on the terms I have previously outlined. [ 20 ] I take two points from this review.

First, I am satisfied that the judge had in mind the important applicable sentencing principles, including those relating to Gladue , when she determined Mr. Noltcho’s sentence. Second, I am satisfied that the judge applied the applicable sentencing principles. In this regard, she adjusted the period of incarceration she would have imposed by providing for a period of probation. The imposition of a community-based component in the sentence serves to balance the public protection interest while, at the same time, affording Mr.

Noltcho an opportunity to live in the community without committing crimes. [ 21 ] In short, I find no basis to conclude that the judge erred in principle by inadequately accounting for Mr. Noltcho’s circumstances as an Indigenous offender. B. Did the judge err in principle by misapprehending the relevance of the gap in Mr. Noltcho’s criminal record for offences involving violence? [ 22 ] Mr.

Noltcho argues that the judge overemphasized his previous criminal record and gave no or insufficient regard to the fact that his last previous offence involving violence had occurred in 2011. [ 23 ] At the time of sentencing, Mr. Noltcho had 83 prior convictions dating back to 1994. These included breaches of undertakings, uttering threats, resisting arrests, sexual assault, assault and assault causing bodily harm. Fourteen of these convictions involved violence. The Crown appropriately identified that one of the entries on the

summary it filed, which purported to show a conviction for an assault causing bodily harm, should instead have been listed as a common assault. [ 24 ] The most recent conviction for violent offending – assault causing bodily harm for which Mr. Noltcho had been sentenced to 30 months of incarceration – had taken place in December 2011. Sentencing submissions regarding the November 6, 2018, assault were made in January 2021. Based on this, Mr. Noltcho’s trial counsel submitted to the judge that “we’re getting to a gap of ten years at this point”.

Later, he described the gap as being seven years, which I take to be a measure of the time between the date of Mr. Noltcho’s last conviction for a violent offence and the date of the commission of the crimes for which Mr. Noltcho was being sentenced.

[25] The argument that was invoked on Mr. Noltcho’s behalf at the sentencing hearing, and which he repeated in his oralsubmissions, is sometimes referred to as the gap principle. In his oral submissions in this Court, Mr. Noltcho emphasized that since his lastconviction for a violent offence, he had attempted to rehabilitate himself. He acknowledged that he had breached terms of his release inthe period between 2011 and 2018, but he explained that several of these breaches were unavoidable because he had no place to live.

Hesaid that he eventually found a job and was righting himself until this incident occurred. [26] It is appropriate for courts to give credit to those who have demonstrated an “honest effort to avoid conflict with the criminallaw” (Clayton Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §8.110 [Sentencing]). Rehabilitative efforts will not always besuccessful, but a substantial passage of time between offences without convictions will often be taken into consideration when sentencingfor a new offence.

Crime-free periods may show that the individual is not a career criminal, and it follows that the public would requireless protection (Sentencing at §8.110, citing R. Cross, The English Sentencing System, 2d ed (London: Butterworths, 1975) at 168.) [27] This Court has previously recognized the need for sentencing judges to be alert to gaps in an offender’s record as a factorbearing on the appropriate sentence. For example, in R v Kennedy (1972), (SK CA), 5 CCC (2d) 373 (Sask CA), anaccused convicted of manslaughter was sentenced to two years less one day. The Crown appealed, pointing to Mr.

Kennedy’s extensivecriminal record that included assault, breaking and entering, escape from custody, mischief, wilful damage and, again, breaking andentering. Mr. Kennedy had ceased all criminal involvement for a period of five years prior to the manslaughter conviction.

This Courtdetermined that, “after having gone five years without involvement in the criminal law, the past record should not be a too material factorin determining an appropriate sentence” (at 375). [28] Similarly, in R v Klotz, 2015 SKCA 7, 451 Sask R 237, this Court reduced the sentence imposed by the sentencing judge,finding that the “extensive gaps in the appellant’s record between convictions for breaking and entering … were given no weight by thesentencing judge”.

The sentencing judge had referred to the offender’s “‘continuous’ criminal activity” (at para 8) when there had been a14-year gap between break and enter offences. While the Court did not refer to the gap principle explicitly, the application of the principleis evident. [29] More recently, in R v Smith, 2019 SKCA 100, [2020] 5 WWR 70, this Court was required to craft a fit sentence after findingthat the sentencing judge had erred.

Justice Jackson referred to the “significant gap” (at para 130) in the offender’s criminal record andnoted that it had to be considered in fixing a fit sentence. [30] The gap principle is considered in context with the other principles of sentencing and, thus, does not always serve to amelioratea sentence. The effect of a gap in the criminal record of an offender depends on context and relevance.

As noted in Sentencing, “[t]henature of the offences, the circumstances of the offender, and any intervening events that render the record more or less relevant will affectthe weight given to a prior criminal record” (at §8.117). [31] The principle does not require a timeline absent of all crime for it to come into consideration.

In this regard, in R v Oxford, 2010NLCA 45, 257 CCC (3d) 484, the Court noted that the “gap principle is given effect even if the preceding period is not totally crime freebut is free from crime of the serious nature of the crime for which punishment is then being considered” (at para 22, citing R v Graveline(1958), (ON CA), 120 CCC 367 (Ont CA) and R v Letourneau, 1996 ABCA 309, 193 AR 62). [32] In this case, I am satisfied that Mr. Noltcho was entitled to have the time between his last conviction for a violent offence andthe date of these offences considered and weighed by the judge when she fixed his sentence.

In this context, Mr. Noltcho’s status as anIndigenous offender is also relevant. Again, as the judge observed, it took “no stretch of the imagination to infer that Mr. Noltcho’sproblems with alcohol can be traced back, at least in part, to his negative experiences as an Indigenous man”. She found that there was“clearly a connection between Mr. Noltcho’s criminal history and alcohol” and that “his criminal activity has, to a large extent, been fueledby his alcohol addiction”.

The existence of a gap in offending is most often referred to as bearing on the public protection interest but,more specifically, it can also speak to the offender’s genuine remorse for his past conduct and his past success in, and future prospects for,rehabilitation. These were the points I understood Mr. Noltcho to have made in his oral submissions in this Court. [33] Considering these factors, and the difficulties that a person in Mr.

Noltcho’s circumstances would have had in disassociatinghimself from alcohol, which was one of the root causes of his history of offending, it would have been an error for the judge to haveignored that Mr. Noltcho had achieved some success in his path toward rehabilitation and had avoided criminal convictions for some time.However, I am also satisfied that the judge did not ignore this when she determined his sentence. In this regard, after taking stock of Mr.Noltcho’s criminal record, she accounted for the gap in his record in this way: That having been said, I do recognize that Mr.

Noltcho’s last conviction for a violent offence dates back almost a decade, to 2011. Thatmeans there was a gap of seven years between his last conviction for a violent offence and the aggravated assault committed upon [A.O.].Between December 2011 and the offence of which he’s just been convicted, his offences were primarily breach of conditions and twoconvictions for uttering threats. [34] In this passage, the judge accepts that the period during which Mr. Noltcho committed no violent crime was seven years. Shemight well have noted that, for substantial parts of this period, Mr.

Noltcho was incarcerated; first for the offences for which he wassentenced in 2011, and later for periods when he was in custody for other offences. [35] I am also convinced the judge later accounted for this gap in the sentence she imposed. This is evident from the sentence forthe aggravated assault. In fixing the sentence for this offence, the judge relied heavily on Ratt. She described it as a case that involved a“scenario that is strikingly similar to this case, and with an offender strikingly similar to Mr. Noltcho himself”.

Later, she characterized itas being “the most analogous case” among the several that she referred to in determining a fit sentence for the aggravated assault. Thesecomments invite an examination of Ratt and the sentence imposed in that case compared to that ordered by the judge here. [36] In Ratt, the accused was charged with aggravated assault and several other offences. The nature of the aggravated assault inthat case bore many similarities to those here. In Ratt, the accused was on probation and in violation of his release conditions. Mr.

Rattwas drinking with friends when another man approached him and, unprovoked, Mr. Ratt punched him once in the mouth, dislodging thevictim’s two front teeth. The victim was left with permanent scarring because of the assault and required dental surgery.

[37] The personal circumstances of Mr. Ratt also bore several parallels to those of Mr. Noltcho. Mr. Ratt was of Indigenous heritage.He came from a family that had abused alcohol. Mr. Ratt had experienced traumatic incidents involving his family, including the death ofa sibling as a child and the suicide of another sibling. As well, his mother was the victim of a stabbing and his father had beenpermanently disabled when he was struck by an RCMP vehicle. He made frequent trips in and out of foster care, residential school andyouth custody where he suffered abuse. Mr.

Ratt’s history of violence and abuse started at an earlier age than Mr. Noltcho’s; he beganabusing alcohol when he was nine years of age and later progressed to using illicit substances, including opiates and crystalmethamphetamine. This led to his first encounters with the justice system when he was 13. In contrast, despite his traumatic upbringing,Mr. Noltcho did not interact with the criminal justice system until he was 22, a few years after the death of his grandfather. Still, thecriminal records of Mr. Ratt and Mr. Noltcho were of similar lengths and involved a similar palette of offences. [38] Mr.

Ratt was initially sentenced to 46 months for the aggravated assault, less remand credit. This Court increased his sentenceto 66 months, less remand credit. The feature that most distinguishes the facts in Ratt from those in this case is that Mr. Ratt’s recorddisclosed no similar gap to that which I have identified to be applicable in this case. [39] In my respectful view, if the judge here had simply imposed the same sentence as that imposed in Ratt, it might be said that sheignored the gap in Mr. Noltcho’s record. However, she did not do this.

In contrast to the sentence imposed in Ratt, she limited the orderedperiod of incarceration to 50 months. I recognize that she coupled this with a two-year probation order. However, as the Crown pointed outin argument, the imposition of a sentence that included a period of probation also afforded an opportunity for Mr. Noltcho to continue withthe success he had claimed to have had in pursuing a path toward long-term rehabilitation, but in a context that afforded a measure ofprotection to the public. [40] Based on all of this, I am not persuaded that the judge failed to account for the gap in Mr.

Noltcho’s record pertaining to violentcrimes or erred in the exercise of her discretion when weighing that factor in her consideration of what was a fit sentence in thecircumstances. C. Did the judge err in principle by making a probation order? [41] Mr. Noltcho’s notice of appeal states that he “does not agree with probation because he does not have a residence arrangedfollowing his release and will be breached”. This ground of appeal is made with apparent reference to two conditions in the probationorder, namely that Mr. Noltcho must, for a period of two years from the date of his release: … 3.

Notify the probation officer or Court in advance of any change of the offender’s name or address and promptly notify the probationofficer or Court of any change of the offender’s employment or occupation. … 6. You will live at a residence approved by your probation officer and not change that residence without the prior written permission ofyour probation officer or designate or the Court. … [42] The first of these conditions is a requirement of s. 732.1(2)(c), which provides as follows: Compulsory conditions of probation order

(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following: … (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probationofficer of any change of employment or occupation. [43] Implicit in this required condition is that an offender who is released on conditions must have a residence. I note, also, that Mr.Noltcho’s trial counsel had represented to the judge that Mr. Noltcho would have a place to live after his release. [44] The validity, if any, of Mr.

Noltcho’s complaint with the probation order must therefore rest on the discretion given to theprobation officer under condition number 6, relating to a change in residence.

The authority for the judge to attach this condition wouldarise, if at all, pursuant to s. 732.1(3)(h), which allows a court, in fixing the terms of a probation order, to require the offender to “complywith such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), forprotecting society and for facilitating the offender’s successful reintegration into the community”. [45] In R v Degan (1985), (SK CA), 38 Sask R 234 (CA) [Degan], this Court upheld, as reasonable, a conditionin a probation order that required the offender to reside in a residence approved by the Chief Probation Officer or his designate, and thenspecified the institution where he was to reside.

Justice Vancise observed that “[t]rial judges regularly impose residency requirements onpersons placed on probation where they consider it necessary to secure the good conduct of the accused under the authority of s. 663(2)(h)[now s. 732.1(3)(h)]. When such conditions of residency are reasonable, they are within the jurisdiction of the trial court judge” (Degan atpara 5). I add that the issue which caused controversy in Degan is not present here.

In that case, the offender appealed, contending that thecondition, in effect, imposed a term of imprisonment in a correctional facility because the institution was designated as such by theMinister of Social Services several months prior to the sentence being imposed. This argument was rejected by Vancise J.A., in partbecause, at the time of sentencing, the appellant was represented by counsel who “impliedly, if not expressly, agreed or at the very leastacquiesced to the terms and conditions of the probation order” (at para 14).

[46] In R v Duguay, 2019 BCCA 53 at para 86, 372 CCC (3d) 175, Fitch J.A. concluded, with reference to the authority given ins. 731.1(3)(h), as follows: [73] The plain language of the residual clause suggests that sentencing judges have broad discretion to impose reasonable conditions ofprobation. Nothing in the clause itself, the context in which it appears or the objectives of sentencing suggests that this discretion does notextend to imposing a residency condition in appropriate circumstances. Further, there is no policy-based reason to limit the reach of theprovision and I am aware of no authority that dictates such a result. On the contrary, giving a broad

interpretation to a judge’s powersunder the residual clause is consistent with the general principles noted above. [47] Recently, in R v Serafino, 2021 SKCA 29 [Serafino], Kalmakoff J.A. provided a roadmap for determining whether a conditionin a probation order ought to stand. He explained that a probation condition “requires a nexus between the offender, the protection of thecommunity and the offender’s reintegration into the community” and that “[c]onditions of probation imposed primarily to punish ratherthan rehabilitate the offender are not permitted” (at para 19).

In that case, the sentencing judge had imposed a banishment order againstthe offender despite such an order not being requested by the Crown, without having heard submissions on the issue and withoutadequately considering the exceptional nature of such an order. [48] The question then becomes whether the condition that requires Mr. Noltcho to reside at an approved residence has a nexus tohis reintegration into society, or whether the condition was imposed primarily to punish him. I would set to the side any suggestion thatthere is a penal element to this condition.

In this regard, an approved residency provision bears no comparison to the banishment order atissue in Serafino. The residency condition was accompanied by other clauses, including that Mr.

Noltcho observe a curfew for the firstnine months of the probation period, that he not possess or consume alcohol or drugs that have not been prescribed to him by a medicaldoctor and that he participate in treatment programs as directed his probation officer. [49] Although not expressly mentioned by the judge as being the basis for the approved residence requirement, I would agree withthe Crown that it forms part of an overall package of conditions designed to assist Mr. Noltcho to achieve his goal of rehabilitation whilemaintaining an element of public protection.

In short, I see nothing unreasonable about this condition, in the circumstances of this case. D. Was the sentence demonstrably unfit? [50] Courts have used a variety of expressions to describe a sentence that is demonstrably unfit. These include “clearlyunreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure”(Lacasse at para 52, referring to R v Rezaie (1996), (ON CA), 31 OR (3d) 713 (CA) at 720).

As explained byWagner J. (as he then was), “[a]ll these expressions reflect the very high threshold that applies to appellate courts when determiningwhether they should intervene after reviewing the fitness of a sentence” (Lacasse at para 52).

Justice Wagner offered the followingadditional guidance to appellate courts charged with considering whether a sentence is demonstrably unfit: [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciledfor a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [51] In addition to stating generally in his notice of appeal that the overall sentence was excessive, in his oral submissions Mr.Noltcho differentiated his circumstances from those in Ratt. I have already explained how the judge accounted for the differences betweenthe circumstances in his case with those in Ratt. More generally, I see no basis to interfere with the sentence imposed in relation to theaggravated assault.

The sentence for that offence just exceeded the general sentencing range of two to four years articulated by this Courtin Ratt (see para 82, citing R v Sayazie, 2010 SKCA 14, 346 Sask R 147). However, in Ratt, Kalmakoff J.A. also described the types ofaggravated assault cases that may attract a sentence above this range as including offences that result in permanent injuries to the victim orwhere the offender has a lengthy criminal record of violent offences. This case bears both markers. [52] I see no issue with the sentence imposed by the judge for the uttering threat conviction.

Its length was at the low end of therange that had been proposed to the judge by counsel. Because it was disconnected by time and location from the aggravated assault, itwas appropriate that it be ordered to be served consecutively. [53] Finally, the coupling of the periods of incarceration with the probation order does not render the overall sentence demonstrablyunfit, given the purpose of sentencing and the objectives that such order was intended to achieve. [54] In short, I see no basis to interfere with the sentence on the ground that it was demonstrably unfit. V.

CONCLUSION [55] For the reasons I have given, I would dismiss Mr. Noltcho’s appeal. “Leurer J.A.” Leurer J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Tholl J.A.” Tholl J.A.