R v Rutt, 2021 SKCA 143

Court of Appeal for Saskatchewan Docket: CACR3387 Citation: R v Rutt, 2021 SKCA 143Date: 2021-11-02 Between:Tammy Louise RuttAppellant AndHer Majesty the QueenRespondent Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Extension of time to appeal against conviction allowed; conviction appeal dismissed; verdict substituted;and sentence imposedWritten reasons by: The CourtOn appeal from: 2020 SKQB 200, BattlefordAppeal heard: August 12, 2021Counsel: Thomas P. Hynes for the Appellant Andrew S. Davis for the Respondent The Court [1] Tammy Louise Rutt appealed against the sentence imposed following her conviction for the offence of attempted murder,contrary to s. 239(1)(

a) of the Criminal Code. She received a global sentence of nine years’ imprisonment for multiple convictions, witheight years attributed to the attempted murder offence (see R v Rutt, 2020 SKQB 200 [Sentencing Decision]). She did not appeal againsther sentence other than in respect of the attempted murder. [2] The facts of the attempted murder and related offences may be briefly summarised. On June 18, 2018, Ms. Rutt’s husband andher uncle were sitting on the porch of a cabin, having completed the day’s work. Ms.

Rutt came around a corner of the cabin, raised a .22calibre rifle and pointed it toward her husband’s head. She said, “I’m going to kill you” and squeezed the trigger. The gun did not fire. Heruncle interceded, took possession of the gun, and unloaded it. Ms. Rutt was, at that time, subject to a 10-year mandatory firearmsprohibition order. When later confronted by the RCMP, she gave a false name. [3] In the Indictment, Ms.

Rutt was charged with the offence of attempted murder under “s. 239(a)” [sic] of the Criminal Code.The circumstances it alleged were, however, framed to describe the offence under s. 239(1)(a.1) of the Criminal Code. Noting that thesection number was erroneous, the trial court corrected it in the Indictment to read “s. 239(1)(a)”. After trial, the trial court enteredconvictions for the offences of attempted murder (s. 239(1)(a)), possession of a firearm contrary to a weapons prohibition (s. 117.01(3)),uttering threats (s. 264.1(1)(a)) and obstructing a police officer (s. 129(a)).

Pursuant to the principle in R v Kienapple, (SCC), [1975] 1 SCR 729, the trial court stayed convictions for the offences of pointing a firearm (s. 87(2)), possession of a firearm in acareless manner (s. 86(1)), possession of a weapon for a dangerous purpose (s. 88(2)), and assault with a weapon (s. 267(a)). Lastly, thetrial court acquitted Ms.

Rutt of failing to comply with a condition of an undertaking (s. 145(5.1)) because the Crown conceded it hadfailed to establish that she had been subject to an undertaking at the relevant time. [4] Following a sentencing hearing, the trial court imposed a sentence of eight years’ incarceration for the attempted murderoffence, one-year consecutive for the firearms offence (s. 117.01(3)), four-months concurrent for obstruction, and nine months concurrentfor uttering threats and made ancillary orders that were mandatory in the circumstances. Ms.

Rutt appealed only against the sentence forattempted murder, asserting that the trial court erred in principle in ways that disproportionately elevated the duration of her sentence ofincarceration. However, after the conclusion of the sentence appeal hearing, the Court questioned whether Ms. Rutt may have beenconvicted of the wrong attempted murder offence and we received written submissions from the parties on that question. [5] As the Crown acknowledges, there was no evidence at trial to suggest that Ms.

Rutt had attempted to commit murder “using arestricted or prohibited firearm”, which is an element of the offence under s. 239(1)(a). Ms. Rutt used a .22 calibre rifle, which is a non-restricted firearm, and there was no evidence it had been converted into a prohibited firearm. Furthermore, Ms. Rutt acknowledges that shewas properly convictable of the offence of attempting to commit murder contrary to s. 239(1)(a.1) of the Criminal Code because she hadused a non-restricted firearm. In short, the Crown and Ms.

Rutt both agree that, because there was no evidence or allegation that she hadused a restricted or prohibited firearm in the commission of her offence, she should have been convicted of the offence of attemptedmurder contrary to s. 239(1)(a.1) of the Criminal Code, not s. 239(1)(a). [6] We are satisfied that a substituted verdict is appropriate in these circumstances. This requires that we grant Ms. Rutt’sapplication for an extension of time to appeal against her attempted murder conviction. In the result, we dismiss Ms. Rutt’s convictionappeal pursuant to s. 686(1)(b)(

i) of the Criminal Code and, exercising our powers under s. 686(3), we substitute a conviction forattempted murder under s. 239(1)(a.1). See: R v Biniaris, 2000 SCC 15 at paras 16–​18, [2000] 1 SCR 381; R v Comeau, 2008 NBCA 60 atpara 36, 332 NBR (2d) 308; and R v Nantais, [1966] OR 246 (CA). [7] Considering this disposition of her conviction appeal, Ms. Rutt’s application for leave to appeal against the sentence imposedby the trial court is moot.

However, when substituting a verdict pursuant to s. 686(3) of the Criminal Code, this Court has the power toaffirm the sentence passed by the trial court, to impose a sentence that is warranted in law, or to remit the matter to the trial court withdirections to impose a sentence that is warranted in law.

[8] In this matter, we conclude that the Court is not in a position to affirm the eight-year sentence passed by the trial courtbecause, under Ms. Rutt’s sentence appeal, we would have found that errors of principle had affected the duration of the sentence imposedby the trial court with respect to the attempted murder conviction. Based on our assessment of Ms.

Rutt’s moral culpability in thecircumstances and of the seriousness of her offence, after correcting for error in the trial judge’s assessment, we would have imposed—asof the date of her original sentencing—a sentence of seven years of imprisonment for the offence of attempted murder contrary to s. 239(1)(a.1). Our reasoning is as follows. [9] At the trial court, Ms. Rutt argued for a sentence of five years’ imprisonment for the attempted murder conviction; a positionshe maintained in her sentence appeal. All told, she sought a global sentence of six years imprisonment.

The Crown argued before the trialcourt for an eight-year sentence for the attempted murder and maintained that position in this Court in the sentence appeal, arguing that,even if we were to find an error had affected the sentence, eight years imprisonment (nine years, global) was fit in the circumstances. [10] Attempted murder is a serious offence—regardless of the circumstances. Sentences for attempted murder with a firearm havefallen in the general range of four to 16 years of imprisonment. The caselaw and the circumstances of the attempted murder place anappropriate sentence for Ms.

Rutt nearer to the middle of that range—i.e., nine to 10 years—rather than the five years for which she hasadvocated in this Court. [11] However, none of the cases cited by the Crown and Ms. Rutt are directly comparable to the circumstances at hand. The offenceof attempted murder admits a broad range of circumstances and is committed by diverse offenders.

There are, however, comparableaspects to many of these cases, including R v May, 2018 BCCA 391 (9.5 years), R v Ahpay, 2018 SKQB 147 (14 years), R v Ziegler, 2017ABQB 515 (6 years), R v Nason, 2015 NBCA 34, 437 NBR (2d) 259 (15 years), R v Alvarez, 2014 ONSC 902 (10 years), R v Carelse,2013 SKQB 15, 411 Sask R 263 (16 years), R v Hanishewski, 2013 SKCA (SentDig) 34 (9 years), R v Goldberg, 2012 BCSC 2060 (9.5years), R v Chevers, 2011 ONCA 569, 282 OAC 388 (15 years), R v Bryan, 2008 NSCA 119, 272 NSR (2d) 246 (15 years), R v Dennis,2005 BCCA 475, 218 BCAC 67 (9 years), and R v Ahmed-Saidi (2001), (ON CA), 140 OAC 346 (8.5 years).[1]There are also mitigating and aggravating factors in each case that differentiate the offences and the offenders from this offence and fromMs.

Rutt. [12] While the caselaw serves to reinforce the general seriousness of attempted murder, the crafting of a proportionate sentence is anexercise that must always be tailored to the individual circumstances of the offender and the offence committed. In the latter regard, thetrial court summarised the circumstances of Ms. Rutt’s offence in this way in the Sentencing Decision: [6] Back at Jarvis Lake, [Ms. Rutt’s uncle] and [her husband] had some discussion regarding the work that was to be done. [Herhusband] had one drink of rye and Coke and opened a can of beer.

He then unloaded his supplies and tools out of his truck, while [heruncle] proceeded to go work on a fireplace. By that time, it was towards evening. [7] When [Ms. Rutt’s uncle] finished the fireplace, he returned to where [her husband] was, outside of a cabin on what [her husband]called the deck. They sat down and [Ms. Rutt’s husband] opened his second beer and [her uncle] also had a beer. They were discussingwhat work needed to be done on each cabin. [8] Ms. Rutt came around the corner to [her husband’s] right side. [He] noticed her, but he was talking with [her uncle] and did notimmediately notice the gun.

He saw the gun when Ms. Rutt brought it up and pointed it at [his] head. She then said, “I’m going to killyou” and squeezed the trigger. [Ms. Rutt’s husband] “froze” at that point. He believed Ms. Rutt when she said she was going to kill him. [9] Ms. Rutt’s left hand was on the forward stock of the gun and her right hand was on the trigger. She squeezed the trigger, but thegun did not fire. Ms. Rutt, reacting to the gun not firing, put it down, turned it sideways and looked at it. At that point, [her uncle] jumpedup to look at the gun. [Ms.

Rutt’s husband] went to the back of his vehicle, which was parked very close by. He looked back and Ms. Ruttwas gone, but [her uncle] had the gun. [Ms. Rutt’s husband] went toward him and watched [her uncle] unload it. [He] then decided toleave, so jumped in his truck and drove to the next lake, Pagan Lake, which is about a 10-minute drive. There he borrowed a cell phoneand called 911, advising that Ms. Rutt had pointed the .22 calibre rifle at his head. [10] On the previous day, [Ms. Rutt’s uncle] had informed [her husband] that both the .22 calibre [rifle], which Ms.

Rutt had pointed at[her husband], and the 303 rifle, located in a soft case hanging on the wall of the cabin, were loaded. [11] Ms. Rutt intended the natural and probable consequences of her actions, namely causing the death of [her husband]. Her actions inthis regard were, again, pointing the gun at [his] head and squeezing the trigger, after having announced her intent. [13] While Ms. Rutt’s husband was not injured, that was merely by luck because the gun, although it was loaded, did not fire.Absent fortuity, Ms. Rutt may well have killed her husband in accordance with her expressed intent to do so.

In R v McArthur (2004), (ON CA), 184 OAC 108, Doherty J.A. commented on this kind of circumstance when describing the general nature of anoffender’s responsibility and the objective seriousness of the offence of attempting to commit murder: [47] … Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of theattempted murderer is at least equal to that of a murderer.

He or she avoids a murder conviction and the automatic sentence of lifeimprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed. [14] The general seriousness of the offence is also evident in the Criminal Code. The minimum sentence for an attempted murdercommitted with a non-restricted firearm is four years of imprisonment (s. 239(1)(a.1)). The maximum sentence for attempted murder,regardless of its circumstances, is imprisonment for life (s. 239(1)). By enacting s. 239(1), Parliament has removed the offence ofattempted murder from the operation of s. 463(

a) of the Criminal Code, which sets a maximum term of 14 years of imprisonment forattempting to commit offences that are themselves punishable by imprisonment for life. The Court has no hesitation concluding thatParliament considers attempted murder involving a firearm to be one of the most serious offences under the Criminal Code. [15] The fact that Ms. Rutt attempted to kill her intimate partner aggravates the seriousness of her offence (s. 718.2(a)(ii)). Ms. Rutthas a history of uttering threats and making false criminal complaints against her husband.

The aggravating nature of these facts calls foran increased sentence of imprisonment. In light of the gravity of the offence, we conclude that denunciation (s. 718(a)) and general and

specific deterrence (s. 718(b)) are the paramount objectives of a just sanction in these circumstances. We are also satisfied, chiefly by Ms. Rutt’s post-arrest conduct, that the objective of rehabilitation (s. 718(d)) may be actualised through the sentence imposed on her. [ 16 ] We do not consider Ms. Rutt’s criminal record aggravating because it contained, at the relevant time, no convictions for violent offences. It is, however, aggravating that Ms. Rutt was subject to a weapons prohibition ( Sentencing Decision at para 13) and on judicial interim release at the time of the offence.

On the other hand, there is no indication Ms. Rutt’s offence was planned or resulted from any deliberation on her part. The offence seems to have been impulsive or opportunistic. Nonetheless, the absence of planning and deliberation is not mitigating. Nor is the fact that Ms. Rutt’s husband does not hold it against her that she attempted to murder him. In a letter to the trial court, he unequivocally stated his support for her and his intention to remain in the spousal relationship (quoted in the Sentencing Decision at para 26). There was also other evidence of community support for Ms.

Rutt. [ 17 ] Most significantly in terms of mitigation, as the Crown has acknowledged, there are many Gladue factors present in Ms. Rutt’s life. Through its submissions on sentence, the Crown may be fairly taken to have recognised that Gladue factors have affected Ms. Rutt’s moral culpability for the commission of her offence. That said, when sentencing for attempted murder with a firearm, there is no alternative to incarceration and, therefore, it is the length of the jail term imposed that must be considered under s. 718.2 (

e) of the Criminal Code ( R v Delorme , 2017 SKCA 3 at para 68 ; R v Whitehead , 2016 SKCA 165 at para 84 , [2017] 5 WWR 222). [ 18 ] As the trial court recognised, Ms. Rutt had “taken steps in overcoming what her husband describes as her ‘horrific haunting past’”, referring to the Gladue factors present in her life ( Sentencing Decision at para 42). In our view, that past was well summarised by the trial court ( Sentencing Decision at paras 36–47). It is clear that Gladue considerations affected Ms. Rutt’s moral culpability for the commission of her offence.

As such, a proportionate sentence should be lower than what might have been imposed on an offender whose moral culpability had been assessed in the absence of these Gladue factors. [ 19 ] Taking all of this into account, we find a fit sentence for the offence of attempted murder in the individual circumstances of this offender and this offence is seven years of imprisonment. By its duration, a seven-year sentence serves the paramount objectives of denouncing Ms. Rutt’s unlawful conduct and deterring her and other persons from committing similar offences. It recognises the aggravating fact that the victim was Ms.

Rutt’s intimate partner as well as the mitigating effect of the Gladue factors present in her life. It thereby contributes to respect for the law and to the maintenance of a just, peaceful and safe society. Although a term of imprisonment in a federal penitentiary is mandated by s. 239(1) (a.1), a seven-year sentence helps achieve the secondary objectives of rehabilitation and the promotion of a sense of responsibility in Ms.

Rutt due to educational and rehabilitative programming available within a penitentiary. [ 20 ] However, a sentence commences when it is imposed, meaning we cannot simply impose a seven-year sentence of imprisonment at this juncture of the proceedings ( Criminal Code , s. 719(1) ; R v Roks , 2011 ONCA 618 at paras 21–28 , 282 OAC 334). In our judgment, the circumstances, including s. 719(1) and the calculation of earned remission under the Corrections and Conditional Release Act , SC 1992, c 20 , justify granting Ms.

Rutt credit under s. 719(3.1) of the Criminal Code for the approximately 15 months she has spent in custody under her original sentence on a 1.5:1 basis. Therefore, deducting 718 days for remand credit and 685 days for time served under her original sentence, we impose a sentence of 1,154 days (or 3 years and 59 days) for the offence of attempted murder contrary to s. 239(1) (a.1), to commence on the date of this judgment. [ 21 ] In

summary, the Court dismisses Ms. Rutt’s appeal against conviction and substitutes a conviction for attempted murder under s. 239(1) (a.1). Pursuant to s. 686(3) of the Criminal Code , the Court imposes a sentence of imprisonment for a term of 1,154 days for the offence contrary to s. 239(1) (a.1). This results in a global sentence of 1,519 days (or 4 years and 59 days) remaining to be served after taking account for the 365-day consecutive sentence for the offence under s. 117.01(3) of the Criminal Code . “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.