R v Roberts, 2021 SKCA 146

Court of Appeal for Saskatchewan Docket: CACR3467 Citation: R v Roberts , 2021 SKCA 146 Date: 2021-11-04 Between: Her Majesty The Queen Appellant And Jeannie Roberts Respondent Before: Jackson, Ryan-Froslie and Tholl JJ.A. Disposition: Appeal dismissed (orally) Oral reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Tholl On appeal from: Provincial Court, La Ronge Appeal heard: November 4, 2021 Counsel: Andrew Davis for the Appellant Catriona Kaiser-Derrick for the Respondent Ryan-Froslie J.A. [ 1 ] The Crown appeals against the suspended sentence and three-year probation order imposed in Provincial Court on Jeannie Roberts as a result of her conviction of one count of assault with a weapon contrary to s. 267 (

a) of the Criminal Code . [ 2 ] The Crown contends that the sentence imposed is demonstrably unfit and that the sentencing judge committed a series of errors in principle that affected the sentence and warrant appellate intervention. [ 3 ] While we grant leave to the Crown to appeal, we would nonetheless dismiss its appeal. [ 4 ] As stated by the Supreme Court of Canada in R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, an appellate court can only intervene to vary a sentence if the sentence is demonstrably unfit or the sentencing judge made an error in law or principle that impacted the sentence.

The weighing or balancing of factors can constitute an error in principle only if by overemphasizing one factor or by not giving enough weight to another, the sentencing judge exercises his or her discretion unreasonably. The standard of review as set out in R v Lacasse is not an invitation to intervene or to look for error. A sentencing decision is always entitled to deference. [ 5 ] It should be noted that at the time of the offence, Ms. Roberts had just turned 18. She had no close relationships outside her family and the victim was her only friend. Ms.

Roberts had been a member of a suicide pact when she was only 11 years old and began drinking at age 13. While she had a youth record that included prior assaults, that record was dated, and she was last sentenced for a violent offence when she was 15. [ 6 ] The Crown contends that the sentencing judge erred by overemphasizing rehabilitation and underemphasizing denunciation, deterrence and protection of the public.

It submits that s.718.04 of the Criminal Code required the sentencing judge to give primary consideration to the objectives of denunciation and deterrence, which it suggests could best be achieved by imposing a custodial sentence. We do not agree that the sentencing judge made the alleged error. [ 7 ] The sentencing judge clearly stated that he was aware of the applicability of s. 718.04. He correctly determined however, that he must still consider and apply all the relevant sentencing principles, including the Gladue factors.

In crafting an appropriate sentence, he kept the objectives of denunciation and deterrence clearly in mind and addressed how they would be met by imposing a suspended sentence. He considered all of the relevant aggravating and mitigating factors. He knew the circumstances and needs of the northern communities where he presided including Stanley Mission, where the offence had occurred. In our view, the objectives of denunciation, deterrence and protection of the public can be met in appropriate circumstances by the imposition of a suspended sentence. Incarceration is not always required to achieve those goals.

That is evident from this Court’s decisions in R v Charles , 2021 SKCA 75 , [2021] 7 WWR 734; R v Kishayinew , 2021 SKCA 32 and the British Columbia Court of Appeal’s decision in R v Voong , 2015 BCCA 285 , 374 BCAC 166. [ 8 ] Further, the sentencing judge did not, as submitted by the Crown, make material findings unsupported by the evidence. [ 9 ] Ms. Roberts’ moral culpability was diminished as a result of the application of the Gladue factors. Her father was a residential school survivor. Her community was marginalized and plagued by addictions and suicides. Alcohol is how Ms.

Roberts’ family and her community coped with tragedy. It is what she grew up with and it is how she learned to cope with adversity. Diminished moral culpability does not mean that Ms. Roberts bore no responsibility for her actions and the sentencing judge recognized that. [ 10 ] Further, the sentencing judge was correct to focus on Ms. Roberts’ alcohol abuse. The undisputed evidence was that alcohol was part of every offence Ms. Roberts has committed.

There were other factors in her life that negatively impacted her risk to offend, but alcohol was clearly the major and most pressing issue. [ 11 ] Nor did the sentencing judge err in finding Ms. Roberts’ attitude may have changed as she matured. The pre-sentence report was prepared a year prior to her sentence hearing. Ms. Roberts had not re-offended between the date of the offence (October, 2019) and

her sentencing (June 22, 2021). Ms. Roberts spoke at her sentence hearing about her remorse and her desire to get help. The sentencing judge took into account that such help may not be available “in a timely way” within a criminal institution during the Covid-19 pandemic. He did not err in doing so. [ 12 ] Finally in our view, the sentence imposed was not demonstrably unfit, having regard for all the circumstances as understood and explained by the sentencing judge. [ 13 ] The Crown’s appeal is dismissed.