R v Ratt, 2021 SKCA 7

Court of Appeal for Saskatchewan Docket: CACR 3326 and CACR 3292 Citation: R v Ratt , 2021 SKCA 7 Date: 2021-01-21 Between: Her Majesty the Queen Appellant And Joshua Lee Ratt Respondent Before: Richards C.J.S., Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Barrington-Foote On appeal from: Provincial Court, La Ronge Appeal heard: December 7, 2020 Counsel: W.

Dean Sinclair, Q.C. for the Appellant Brent Little and Katherine Pocha for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] After a trial in Provincial Court, Joshua Ratt was convicted of aggravated assault, obstructing police and two counts of breach of probation. He was acquitted on charges of threatening to cause bodily harm and threatening to cause death. [ 2 ] On the charge of aggravated assault, the trial judge sentenced Mr. Ratt to a term of imprisonment of 46 months which, after credit was given for pre-sentence custody, left him with 25 months to serve.

A firearm prohibition and DNA sample order were also part of this sentence. Mr. Ratt received concurrent sentences of three months’ imprisonment on the charge of obstructing police and ten months for each count of breach of probation. [ 3 ] The Crown appeals against the acquittals on the charges of uttering threats. It alleges that the verdicts resulted from the trial judge misapprehending the actus reus requirement of the offence with respect to one count and misapprehending the mens rea requirement with respect to the other.

The Crown invites this Court to set aside the acquittals and enter convictions in their place. [ 4 ] The Crown also appeals the sentence imposed on the charge of aggravated assault. It contends, primarily, that the trial judge unreasonably emphasized rehabilitation and failed to give proper consideration to the sentencing objective of protection of the public. [ 5 ] For the reasons that follow, I would allow the appeal from acquittal and remit the two charges of uttering threats to the Provincial Court for a new trial. I would also allow the Crown’s sentence appeal. II. BACKGROUND A.

The Factual Underpinning [ 6 ] In the early morning hours of September 10, 2018, Mr. Ratt was in the town of Deschambault Lake. He was on probation at the time, having been sentenced on other charges only five days earlier. One condition of Mr. Ratt’s probation order required him to keep the peace and be of good behaviour. Another condition prohibited him from being within 25 kilometres of the community of Deschambault Lake. [ 7 ] At around 3:30 a.m., Mr. Ratt and two of his friends were consuming alcohol in a back alley when they encountered a person named Kenny Ballantyne. Mr. Ratt and Mr.

Ballantyne were familiar with one another. Some discussion took place between them regarding, among other things, whether Mr. Ballantyne wanted to have a drink from the bottle of whisky that Mr. Ratt and his friends were sharing. At some point, Mr. Ratt punched Mr. Ballantyne in the mouth with enough force to cause a deep cut in his lip and dislodge two of his front teeth. Mr. Ratt left the alley and Mr. Ballantyne went home. [ 8 ] A few hours later, police received a complaint about Mr. Ratt being intoxicated outside a residence. Officers attended the scene and located him. The officers were aware that Mr.

Ratt was prohibited by the terms of his probation order from being in Deschambault Lake, so they attempted to arrest him for breach of probation. Rather than submitting to the arrest, Mr. Ratt ran from the scene. A short foot chase ensued and eventually one of the officers, Cst. Haines, tackled Mr. Ratt to the ground and placed him under arrest. [ 9 ] Constable Haines described Mr. Ratt as aggressive and belligerent following the arrest. He also noted that Mr. Ratt appeared to be highly intoxicated and was “talking gibberish and not making a lot of sense”. While being transported back to the RCMP detachment, Mr.

Ratt repeatedly kicked at the door of the police car and said to Cst. Haines that he would “Fucking punch you out, man”.

Constable Haines advised Mr. Ratt that he would also be charged with uttering threats. Throughout the ride to the detachment and while being booked into cells, Mr. Ratt continued with his tirade, which was laden with expletives, racist language and derogatory comments about police officers. At one point, the following exchange took place, as taken from the transcript of the in-car recording: J. RATT: …I’ll try to fucking ride in the yard because your family, man. Cst. HAINES: ‘Cause of my family? J. RATT: Fucking rat. Fucking bitch, man. [Unintelligible] on your family [unintelligible].

Just remember that ahm, your fucking family is dead. [ 10 ] Constable Haines then advised Mr. Ratt that he would also be charged with another count of uttering a threat, based on that statement. This exchange followed: J. RATT: I said – Cst. HAINES: No, you said you want to kill my family. J. RATT: Nothing [unintelligible] about your family. Cst. HAINES: Yeah, you threatened my family, buddy. That’s not, that’s – J. RATT: I just said that ah, how come you’re talking about your family, fucking [unintelligible] stupid. [ 11 ] A short time after Mr.

Ratt had been arrested, police officers received information from his friends regarding the assault on Mr. Ballantyne. The friends, who had been present in the back alley when the assault occurred, said that Mr. Ratt had told them he had punched Mr. Ballantyne in the face to “send a message” to Mr. Ballantyne’s brother in relation to something that had happened the previous summer. [ 12 ] The officers went to Mr. Ballantyne’s house and, seeing his injuries, made arrangements to get medical attention for him. Mr. Ballantyne was taken to hospital in Flin Flon, where he received stitches to his lip and gums.

The next day, he was transported to Saskatoon where a dentist removed his damaged teeth. [ 13 ] Mr. Ratt testified at trial that he had struck Mr. Ballantyne because he believed Mr. Ballantyne was about to assault him. Mr. Ratt said Mr. Ballantyne had been acting nervous and had appeared to be reaching into his pocket for a knife, so a pre-emptive strike was required to protect himself. He also acknowledged the content of the audio recording of his interaction with Cst. Haines, but said he had no present recollection of having made the threatening remarks. Mr.

Ratt testified that he had been highly intoxicated at the time and said that “If I was aware at the time I wouldn’t have said what I said”. B. The Trial Decision [ 14 ] The trial judge had no difficulty finding Mr. Ratt guilty on the charges of breach of probation and obstructing police, concluding that the evidence against him in relation to those counts was “overwhelming” and “uncontroverted”. The trial judge also rejected Mr. Ratt’s account of the altercation with Mr. Ballantyne and, accordingly, rejected his claim of self-defence. In that respect, the trial judge found that although the injuries Mr.

Ratt inflicted upon Mr. Ballantyne (cuts that required 9 or 10 stitches and dislodging two upper teeth such that dental surgery was required to remove them) met the definition of aggravated assault, they were “at the bottom of the scale of aggravated assault, just over the line of assault causing bodily harm”. [ 15 ] The trial judge also noted that, even if he had not rejected Mr. Ratt’s testimony regarding the altercation with Mr. Ballantyne, the Crown would still have succeeded in disproving self-defence under s. 34 of the Criminal Code because Mr.

Ratt’s “pre-emptive strike was grossly disproportionate” to any threat Mr. Ballantyne had posed. [ 16 ] When the trial judge turned to consider the charges of uttering threats, he began by referring to R v McRae , 2013 SCC 68 , [2013] 3 SCR 931 [ McRae ] and summarizing what the Supreme Court of Canada had said in that case about the actus reus and mens rea requirements for the offence.

Appearing to read from the headnote of the judgment, he said: The actus reus of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. The Crown need not prove that the intended recipient of the threat was aware of it, or if he was aware of it, that he or she was intimidated by it or took it seriously. The mens rea of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously.

It is not necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat. A subjective standard of fault applies. However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. [ 17 ] The trial judge then observed that Mr. Ratt’s recorded remarks to Cst. Haines were part of a “disgusting and disturbing diatribe laced with racism and hate”.

However, he noted that the charges of uttering threats were not proven by “hate and racism”, but “only by the Crown establishing beyond a reasonable doubt the elements noted”. [ 18 ] With respect to the charge of uttering a threat to cause bodily harm to Cst. Haines, although there was no doubt that Mr. Ratt had said he would “punch out” Cst. Haines, the trial judge was not satisfied that such a statement established the actus reus element of the offence.

In that respect, he said: I am not necessarily convinced beyond a reasonable doubt, however, that a threat to punch somebody out is necessarily a threat to cause

him or her bodily harm. Bodily harm for the purposes of 267(

b) and in my view it applies to 264.1(1)(

a) as … was defined by theSaskatchewan Court of Appeal in the case of R. v. Dupperon, (SK CA), 16 CCC (3d) 453, as bodily injury that is morethan transient or trifling. It is quite conceivable that a person could be punched out in a common use of that term without sustaining actualbodily harm as defined in Dupperon. Being punched out does not necessarily entail injury. Accordingly, I have a reasonable doubt oncount 3 and find the accused not guilty. [19] As for the charge of uttering a threat to cause death to Cst.

Haines’s family, the trial judge found that the actus reus wasestablished, as “any reasonable person would consider the words … spoken and conveyed were a threat to kill the family of Cst. Haines”.However, he concluded that the Crown had failed to prove the mens rea element with respect to this count. In that regard, he said: Considering the mens rea of the offence is more complex.

Not only must it be established that the Crown has proven beyond a reasonabledoubt that the test set out above has been met, it must also prove beyond a reasonable doubt that the accused had the capacity to form theintent to threaten, specific intent must be proven. … I think it more likely than not that considering all of the above the accused was speaking to intimidate Constable Haines. However, Icannot so conclude beyond a reasonable doubt. It is possible that the words spoken were anchored more firmly at alcohol and anger thanin a genuine intention to instill fear.

Accordingly, the accused is entitled to the benefit of the doubt and I find him not guilty. C. The Sentencing Decision [20] At the sentencing hearing, the Crown sought a “go-forward” sentence of five years imprisonment for Mr. Ratt on the charge ofaggravated assault, in addition to the time he had already spent in custody. [21] The Crown took the position that primary consideration should be given to the sentencing objectives of denunciation,deterrence and the need to separate Mr. Ratt from society. It pointed to the aggravating factors, which included Mr.

Ratt’s lengthy andviolent criminal record, his history of non-compliance with rehabilitative components of previous sentences and the significant impact ofthe present aggravated assault on Mr. Ballantyne. Because of these factors, the Crown suggested that the principle of restraint specific toIndigenous offenders, set out in s. 718.2(

e) of the Criminal Code and as interpreted in decisions such as R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], should play a lesser role in determining afit sentence. [22] Mr. Ratt’s trial counsel drew the Court’s attention to his personal circumstances, which included his Indigenous heritage andthe fact that his childhood was marked by transience and instability in the home. Counsel pointed out that Mr.

Ratt had spent significantperiods of time in foster care as a child, had attended residential school, and had suffered physical abuse in both of those settings. [23] Throughout the course of his life, Mr. Ratt was affected by many traumatic and violent incidents involving close familymembers, including the death of one sibling as a young child and the suicide of another sibling in 2014. When Mr. Ratt was five years old,his mother was the victim of a stabbing. Later, his father was struck by an RCMP vehicle and left permanently disabled.

When he was 10years old, his uncle was found dead in the family home; the death was deemed to be a homicide. More recently, his aunt was beaten todeath by her spouse and his stepmother died from a drug overdose. Mr. Ratt also attempted suicide as a youth. [24] Alcohol abuse and violence were commonplace in Mr. Ratt’s life from an early age. He began abusing alcohol at 9 years of ageand progressed to using illicit substances, including opiates and crystal methamphetamine.

He became involved in the criminal justicesystem at an early age and spent time in and out of custody, as well as time on the run after escaping custody. In addition to havingcommitted a number of violent offences, Mr. Ratt had also been the victim of many acts of violence. His constant involvement in criminalactivity had also led to him being banned from his home community for many years. Mr. Ratt had not completed high school and hadnever been employed. [25] Mr.

Ratt’s trial counsel also noted that, despite having spent a great deal of time in custody over the course of his life, he hadreceived little in the way of programming. Counsel argued that a sentence of two to three years, before credit for pre-sentence custody wasdeducted, would be appropriate. [26] The trial judge began his decision on sentence by referring to s. 718 of the Criminal Code and noting the fundamental principleof proportionality in s. 718.1. He also specifically referred to the principle of restraint, as codified in ss. 718.2(

d) and (e). The trial judgedetermined that, pursuant to ss. 719(3) and (3.1), Mr. Ratt’s pre-sentence custody should be credited at a rate of slightly less than 1.5:1and, as such, 21 months would be deducted from the final sentence. [27] The trial judge then turned his consideration to the components of proportionality, namely the gravity of the offence and thedegree of responsibility of the offender. As to gravity, he observed that although aggravated assault is an objectively serious offence, thecircumstances of this case involved only one punch, as opposed to a prolonged beating.

He also noted that the injuries Mr. Ratt caused toMr. Ballantyne were at the less serious end of the scale, at least as far as aggravated assaults are concerned. In that respect, he said: Any time the line is crossed into an aggravated assault, it is a serious injury. The fact that it's someone's teeth, in fact, makes it a moreserious injury. Teeth are integral to things like smiling, eating, biting, to one's appearance, and that comes through well in the victimimpact statement that was filed before me, that the complainant's self-esteem has been affected by having his teeth punched out.

Also, I've looked at the photograph that was filed, and what it clearly shows is that not only the teeth but what they were attached to were -- were pushed back well inside the mouth. Now, anyone who's ever spent any time inside a dentist's chair recoils at the thought ofrepairing something that -- that serious.

So while I say, as I did, that the injury compared with some is -- is not as serious as it could be,nevertheless, even being towards the bottom of the scale, there is still a significant gravity to the injury that was -- was caused. [28] On the other side of the coin, the trial judge determined that the unprovoked and unjustified nature of the assault, and what he

found to be Mr. Ratt’s motivation for the attack, served to increase the gravity of the offence. In that regard, he said: I do not take it as any justification that there was a history of violence perpetrated upon the accused by people related to but not the complainant. The complainant had an absolute right to be free from violence, and that right was taken away from him. To be clear, there is no justification whatsoever for the blow that was struck. The facts as they came out at -- at the trial made it clear that the reason for the blow was to send a message to the complainant's brother, Gerald.

Certainly, I accept that -- what the accused and counsel have put before me today that there is a history between those two people. But … the complainant is not his brother, and if there was some beef between Mr. Ratt and Gerald, it was up -- that was between those two. And this business of using violence to send a message is entirely wrong and indeed increases the gravity of the offence quite significantly. This was unprovoked.

It was unjustified, and for that reason and the degree of injury that was caused and the long-term effects of the injury caused, I find that the gravity of the offence was magnified as a result of those circumstances. It was significant. [ 29 ] The trial judge then considered the degree of Mr. Ratt’s responsibility. He observed that the assault on Mr. Ballantyne was deliberate and unprovoked. He also noted that Mr. Ratt was relatively sober at the time he punched Mr. Ballantyne. However, the trial judge also found that a number of factors related to Mr.

Ratt’s personal circumstances and Indigenous heritage ( Gladue factors) served to reduce his degree of responsibility. In that sense, the trial judge found there to be a direct connection between Mr. Ratt’s traumatic upbringing and his pattern of violent behaviour: The link between where you've come from, the family, the chaotic alcohol-ridden family, the trips into foster care and out of foster care, the trips to residential schools, the time in custody as a youth and as an adult are all part of the same -- the same pattern that has prevailed upon this young man, and I take account, certainly, of Mr.

Ratt's youth. He has been raised with violence. He has been raised with alcohol. He has been raised with community dysfunction, with family dysfunction and breakdown. I have seen some individuals with Gladue factors more compelling than Mr. Ratt but certainly not many. Mr. Ratt was made by his background, and if ever there was a good justification for fully applying the principles set out in Gladue and

Section 718.2(

e) of the Criminal Code , it is today and with Mr. Ratt. I do not accept the Crown's submission that with more serious violent offences Gladue applies with any lesser vigour. In my view, particularly when the linkage between the offending and the background is as crystal clear as it is before me today, Gladue applies with undiluted vigour. [ 30 ] The trial judge noted that Mr. Ratt’s record of violent offending was an aggravating factor, calling it “one of the worst criminal records I’ve ever seen”. He also observed that Mr.

Ratt posed a significant risk to reoffend because he had incorporated violent behaviour into his everyday life. However, he noted that Mr. Ratt’s violent behaviour was tied to his upbringing: The kind of behaviour that Mr. Ratt has exhibited and his attitude towards the use of violence as an ordinary part of day-to-day life is the kind of society that is present in the penitentiaries.

In other words, what I'm hearing, this business of having to react -- sometimes proactively, sometimes reactively -- but meeting violence with violence in order to -- as a matter of self-preservation, that way of doing things is exactly the way people comport themselves in penitentiaries, I'm told. And the reason why, in my view, Mr. Ratt is so significant a risk to reoffend is because he has imported that way of running his life into society, into our society, which has no tolerance for violence. Let me clear -- be clear about that. People have a right to be free from violence. Now, in this case, Mr.

Ratt has not imported that from experience in the penitentiary. I'm not saying that. He's imported that from his experience as a child, his experience as a youth, and his experience as an adult, and there's a direct connection between his Gladue factors and the way that he is comporting himself with respect to the use of violence. [ 31 ] In reviewing Mr. Ratt’s record, the trial judge commented on the fact that Mr.

Ratt’s previous sentences had been “much lighter than one would otherwise have anticipated given the very significant level of violence in many…of the cases” for a number of reasons, including attention given by previous sentencing judges to Gladue factors, the amount of time Mr. Ratt had spent in pre-sentence custody and the fact that a number of those sentences had been the result of joint submissions. In the end, the trial judge determined that the sentence in this case should focus on denunciation and rehabilitation, and should be the minimum length necessary to allow Mr.

Ratt to access programming in the federal correctional system. In that regard, he said: The final analysis comes down to this. I have -- because I have the serious aggravating factor, not determining factor -- I want to be clear about that -- but the serious aggravating factor of an unrelenting criminal record for violence, I have to look at a sentence that accomplishes, in particular, without losing sight of potential rehabilitation -- and I'll come back to that in a second -- but the sentence must denounce this culture of violence that Mr. Ratt is a part of and which he willingly participates in.

I must denounce that. And I must say to - - to Mr. Ratt and to others that the use of violence in society is absolutely unacceptable. When I'm considering rehabilitation, I have to look at the fact that he has done significant time in provincial institutions, and it seems to have been to no avail. He is not controlled. His behaviour is not controlled by probation orders.

The very fact that he was in Deschambault Lake once again when he wasn't supposed to be here -- I mean, he was put on a 3-year probation order not to be in -- in Deschambault Lake, and I counted three sets of convictions during those 3 years in Deschambault Lake. So it's very clear that -- that probation doesn't -- doesn't modify his -- his behaviour. And so while in many cases I would look at a -- at a lesser sentence in order to facilitate probation, I just can't see that it's had any effect. It's been tried, and it -- and it hasn't -- hasn't worked. In order to give Mr.

Ratt a meaningful -- a meaningful chance to try and change his life, in my view it is necessary that he go to the penitentiary today, and so this is going to be a penitentiary sentence. It's not going to be followed by probation. As I say, I don't see that that has -- has been effective. I understand that there is high-intensity violence programming in the federal institutions, and one of my motivations for a penitentiary sentence today is so that Mr. Ratt can avail himself of that programming. … I want to set [Mr. Ratt] up for success.

Because what's been tried so far, again and again and again, has set [him]up for failure. I want

rehabilitation. I want things to work for [him]. I want [Mr. Ratt] to be the man that [he] want[s] to be, and I think that the best way that Ican accomplish that is to sentence [him] to a relatively short penitentiary period. I'm not going to go anywhere near the kind of sentencethat the Crown is suggesting at 7 years. In my view, that sentence does not take into account [Mr. Ratt’s] Gladue factors and [his] degree of moral responsibility. I -- I have to --Gladue says, when I'm dealing with a guy like …Mr.

Ratt, I have to approach it with a different -- a different way of doing things, andthat's why I am looking at rehabilitation as a -- as a real goal for [him]. I'm not doing this as a matter of punishment. I'm -- I think Gladuesays, Let's do things differently.

Let's get away from this notion of retribution and punishment, and let's always try and figure out what'sgoing to work for this person, for this offence, in this community, for this guy, today, and that's what I'm -- that's what I'm going to do. [32] The trial judge went on to impose a sentence of 46 months imprisonment on the charge of aggravated assault which, afterdeducting 21 months credit for time spent in pre-sentence custody, left Mr. Ratt with 25 months to serve. The trial judge also madeconsequent mandatory orders requiring Mr.

Ratt to provide a DNA sample for forensic analysis and prohibiting him from possessingfirearms for 10 years. As mentioned at the outset of these reasons, concurrent sentences were imposed on the remaining charges. III. THE APPEAL FROM ACQUITTAL [33] The Crown appeals against Mr. Ratt’s acquittal on the charges of uttering threats. Under s. 676(1)(

a) of the Criminal Code, inorder to succeed in an appeal from a verdict of acquittal, the Crown must show that the trial judge made a legal error and that the legalerror might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal (R vGraveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609 [Graveline]; R v Gartner, 2020 SKCA 13 at para 18, citing R v Fontaine, 2017SKCA 72 at para 17, [2018] 2 WWR 352; R v George, 2017 SCC 38 at para 27, [2017] 1 SCR 1021). [34] With respect to the charge of uttering a threat to cause bodily harm, the trial judge held that Mr.

Ratt’s threat to “punch out”Cst. Haines was not sufficient to establish the actus reus element of the offence because what Mr. Ratt threatened to do would notnecessarily entail causing injury. The Crown says the trial judge erred in law by failing to find that a threat to “punch out” another person,in the circumstances that existed here, amounted to a threat to cause bodily harm. This error, contends the Crown, was one of failing toproperly apply the objective test set out in McRae regarding the actus reus element of the offence. [35] I agree with this aspect of the Crown’s submission.

The determination of whether an utterance made in specified circumstancesconstitutes a threat to cause bodily harm is a question of law (R v Felteau, 2010 ONCA 821 at para 5 [Felteau]). When consideringwhether the Crown has proven the actus reus element of threatening, the task for the trier of fact is to determine whether “a reasonableperson fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death orbodily harm” (McRae at para 16; see also Felteau at paras 6–7). In this case, the trial judge erred by considering only the words Mr.

Rattspoke and failing to consider the surrounding circumstances, which included the fact that Mr. Ratt had acted aggressively andbelligerently towards Cst. Haines throughout the course of their dealings that night and, only a few hours prior to uttering the remarks toCst. Haines, had caused serious bodily harm to Mr. Ballantyne with a single punch. This error clearly had a material bearing on theacquittal and, as such, the verdict must be set aside. In fact, Mr. Ratt concedes this point. [36] Mr.

Ratt also quite properly concedes that the acquittal must be set aside in relation to the count of uttering a threat to causedeath to Cst. Haines’s family. On that count, the trial judge erred in his determination of whether the mens rea component of the offencehad been proven. It is not necessary for the Crown to prove that the accused specifically intended to instil fear in the person to whom thewords were conveyed.

Even if the words spoken were possibly “anchored” in “alcohol and anger”, as the trial judge characterized thesituation here, the mens rea element of threatening will still be made out “if the accused intended the words uttered or conveyed tointimidate or to be taken seriously” (McRae at para 23; R v Hirsch, 2017 SKCA 14 at paras 47–48, 353 CCC (3d) 230).

In determiningwhether the accused had the intent to intimidate or meant for his or her words to be taken seriously, the necessary inferences may bedrawn by examining the words used, the context in which they were spoken and the person to whom they were directed (R v Clemente, (SCC), [1994] 2 SCR 758 at para 11). Here, it is apparent that the trial judge considered only whether Mr. Ratt intendedto intimidate Cst. Haines or instil fear. He did not turn his mind to the question of whether, notwithstanding his anger and level ofintoxication, Mr. Ratt intended for his words to be taken seriously.

This was an error and it clearly had a material bearing on the acquittal. [37] Having concluded that the acquittals must be set aside, however, it does not invariably follow that convictions must be entered.In order for a court of appeal to exercise its discretion under s. 686(4) of the Criminal Code and enter a conviction rather than order a newtrial, it must be satisfied that the trial judge’s findings of fact, viewed in light of the applicable law, support a conviction beyond areasonable doubt.

This is a power that should be used only in the clearest of cases (McRae at para 39; see also R v Katigbak, 2011 SCC 48,at para 50; [2011] 3 SCR 326, and R v Audet, (SCC), [1996] 2 SCR 171 at para 48). As this Court noted in R v Moise,2016 SKCA 133, 343 CCC (3d) 16 [Moise]: [36] R v Cassidy, (SCC), [1989] 2 SCR 345 at 354-355, 61 DLR (4th) 480, established that for an appeal court tosubstitute a conviction for an acquittal “all the findings necessary to support a verdict of guilty must have been made, either explicitly orimplicitly, or not be in issue”.

In R v Tran, 2010 SCC 58 at para 47, [2010] 3 SCR 350, the Court affirmed the decision of the AlbertaCourt of Appeal which substituted a conviction for an acquittal where the accused’s defence of provocation had no air of reality. TheCourt concluded that a conviction was inevitable based on the facts known. [38] Applying these principles to the present case it would not, in my view, be appropriate for this Court to enter convictions on thecharges of uttering threats. In order to establish Mr. Ratt’s guilt, the Crown must prove both the action (actus reus) and intention (mensrea) elements of the offence.

Although it is clear that Mr. Ratt spoke the words that formed the basis of the charges, the trial judge madeno factual finding, either explicitly or implicitly, as to whether Mr. Ratt had the requisite mens rea in relation to the count of threatening tocause bodily harm to Cst. Haines. As to the charge of threatening to cause death to Cst. Haines’s family, the trial judge did not make afinding of fact with respect to the mens rea component of the offence that would support a verdict of guilty. Based on the record before thetrial judge, which included evidence of Mr. Ratt’s intoxication and Cst.

Haines’s testimony that Mr. Ratt was “talking gibberish and notmaking a lot of sense”, the question of whether mens rea was proven on either count, as a matter of fact, remains in issue. As such, this

Court is not in a position to say that, but for the errors of law, Mr. Ratt would have been found guilty (see Moise at para 37 ). The appropriate remedy is to order a new trial. IV. THE SENTENCE APPEAL A.

Standard of Review [ 39 ] The standard of review in sentence appeals is deferential in nature; an appellate court can intervene to vary a sentence only if it is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence ( R v Friesen , 2020 SCC 9 at paras 25–26 , 391 CCC (3d) 309 [ Friesen ]; R v Lacasse , 2015 SCC 64 at paras 41–48 , [2015] 3 SCR 1089 [ Lacasse ]; R v Suter , 2018 SCC 34 at para 24 , [2018] 2 SCR 496). [ 40 ] Errors in principle that may justify appellate intervention include errors of law, failure to consider a relevant factor, or the erroneous consideration of aggravating or mitigating factors.

Appellate intervention is not permitted merely because the appellate court would have weighed relevant sentencing objectives, principles, or factors differently than the sentencing judge. The weighing or balancing of relevant factors is an error in principle only if, by emphasizing one factor or by not giving weight to another, the trial judge exercised his or her discretion unreasonably ( Friesen at para 26 ). [ 41 ] If an error in principle had no impact on the sentence, appellate intervention will be justified only if the sentence is demonstrably unfit.

However, if the sentencing judge made an error in principle that had an impact on the sentence, the appellate court must perform its own analysis to determine a fit sentence by applying the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range ( Friesen at paras 26–27 ). B. The Errors Alleged [ 42 ] The Crown contends the sentencing judge made a number of errors in this case: (

i) failing to properly consider the sentencing objective of public protection; (ii) giving unreasonable emphasis to the objective of rehabilitation; (iii) improperly employing the principle of restraint contained in s. 718.2 (

e) of the Criminal Code ; and (iv) failing to impose a sentence that was proportionate to the gravity of Mr. Ratt’s offence and the degree of his responsibility in committing it. C. Analysis [ 43 ] As I will explain, there is merit to the Crown’s argument on the sentence appeal. In my view, the trial judge acted unreasonably by overemphasizing the sentencing objective of rehabilitation and failing to emphasize the objective of protecting the public. These errors had an impact on the sentence and, as such, it is appropriate for this Court to intervene and determine a fit sentence. 1.

Sentencing – the Criminal Code framework [ 44 ] A sentencing judge’s decision must be guided by the provisions of ss. 718 to 718.2 of the Criminal Code . Relevant to this case, s. 718 describes the fundamental purpose of sentencing and provides guidance on how that purpose is to be achieved: 718 . The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 45 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The marginal note to this

section in the Criminal Code refers to proportionality as the “fundamental principle” of sentencing. The Supreme Court has variously called proportionality “central to the sentencing process” ( R v Nasogaluak , 2010 SCC 6 at para 41 , [2010] 1 SCR 206 [ Nasogaluak ]), the “cardinal” principle of sentencing ( Lacasse at para 12 ), and the “sine qua non of a just sanction”, because it is intimately tied to the fundamental purpose described in s. 718 ( Ipeelee at para 37 ). [ 46 ]

Section 718.2 sets out a number of secondary principles that a sentencing judge must take into consideration. The portions relevant to this case read as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

… (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 47 ] Notwithstanding the detailed nature of this legislative framework, sentencing remains an inherently individualized process. The goal of the sentencing judge is to craft a sentence that is appropriate for the particular offence committed by the particular offender before the court. 2. Mr.

Ratt’s criminal history [ 48 ] At the sentencing hearing, the Crown filed a large amount of material detailing Mr. Ratt’s prior criminal history. That material demonstrated that Mr.

Ratt had persistently committed violent offences, persistently failed to comply with court orders, repeatedly re- offended within a very short time of being released from custody and, despite having claimed to have been aware of the need to address the personal issues that contributed to his violent offending and repeated involvement in the criminal justice system, done nothing to address those issues. [ 49 ] The Crown argues that the sentencing judge focused his attention almost entirely on the sentencing objective of rehabilitation and, in doing so, failed to give proper consideration to the need to impose a lengthy term of imprisonment in order to separate Mr.

Ratt from society and, thus, protect the public. While the Crown acknowledges that rehabilitation can be a legitimate sentencing goal even for offenders with a history of violence, it argues that Mr. Ratt’s record, coupled with his repeated failures in the community and lack of evidence of rehabilitative prospects, meant that the sentencing judge’s emphasis on rehabilitation was unreasonable.

The Crown also argues that the sentencing judge erroneously interpreted its request for a lengthy prison term as being a call for punishment, as opposed to an invitation to place public protection at the forefront. [ 50 ] In order to assess the Crown’s argument, it is necessary to review some of the details of Mr. Ratt’s criminal record. Mr. Ratt is now 33 years of age. His first conviction for a criminal offence came in March of 2001, when he was just 13, and his record has continued unabated ever since. By the time he committed the offences at issue in this case, Mr.

Ratt had been convicted of a total of 67 offences; 34 as a youth and 33 as an adult. Of those convictions, 21 were for offences involving violence, unlawful use or possession of firearms and other weapons, or uttering threats, including two previous convictions for aggravated assault, three for assault causing bodily harm, two for assault with a weapon, two for common assault, and one for assaulting a police officer. He also had amassed 17 convictions for breaching probation orders or bail conditions and eight convictions for escaping custody or being unlawfully at large. [ 51 ] The circumstances of Mr.

Ratt’s offences involving violence and weapons were placed before the sentencing judge in some detail. They included the following: (

a) November 12, 2003: On this date, Mr. Ratt was convicted, as a youth, of two counts of assault with a weapon, two counts of uttering threats, one count of carrying a concealed weapon and one count of careless use of a firearm. He was sentenced to a total of 16 months custody and eight months community supervision. The offences that led to these convictions arose from four separate incidents. In the first, Mr. Ratt was at a residence where fights had broken out. He stabbed two individuals while they were fighting with other people. One of the victims was stabbed once and, the other, seven times.

In the second incident, Mr. Ratt had been in a fight with some individuals. He went looking for them, carrying a knife. He was stopped by police and uttered threats to the officers. The third incident involved Mr. Ratt carrying a firearm with him into a store when he went to buy cigarettes. The fourth involved him, while intoxicated and unlawfully at large, making threatening remarks to other individuals. The pre-sentence report filed at Mr. Ratt’s sentencing stated that he presented a very high risk to reoffend, noting that he already had a serious alcohol problem and was involved in a street gang. Mr.

Ratt also told the writer of the report that, because he had been beaten up after stabbing the two victims in the first incident that he “fully intends on initiating retribution…when the opportunity arises”. (

b) June 8, 2005: Mr. Ratt, still a youth, was convicted of assault with a weapon, carrying a concealed weapon, possession of a weapon for a dangerous purpose, being unlawfully at large, and escaping lawful custody. He received a total sentence of eight months custody and four months community supervision. The sentence was the product of a joint submission. The incident that led to the assault and weapons convictions occurred January 8, 2005. That morning, Mr. Ratt pulled a knife on Steven Ballantyne. Mr. Ballantyne and others managed to get the knife away from him and Mr. Ratt left the scene.

When officers located Mr. Ratt and attempted to arrest him, he pulled out a fish filleting knife and brandished it toward the officers. The situation escalated to the point where one of the officers had to draw his firearm. Mr. Ratt ran away, but police officers found him several hours later, passed out inside the residence of another person. He again resisted arrest and had to be tasered. Mr. Ratt was still subject to the custody portion of his prior sentence when all this occurred; he had escaped and was unlawfully at large. At the sentencing hearing, Mr.

Ratt’s lawyer told the court he had been highly intoxicated and had little memory of the events. His lawyer also said that Mr. Ratt “is beginning to recognize alternatives to his previous pattern of reaction…” and that “the ball’s in his court and he’s willing to pick it up and run with it.” A pre-sentence report noted that Mr. Ratt posed a “very high” risk to reoffend and that he felt his crimes were fully justified because “it’s about protecting his family and getting even. They deserved it.” He was also described as viewing crime as “fun and something to do and a way to get drugs and alcohol”. It also noted

that Mr. Ratt had attended anger management sessions while in custody and that he “realizes that revenge is a thinking error behind his crime but he still justifies his actions because of his strong belief in getting even.” The pre-sentence report also noted Mr. Ratt’s history of abusing solvents, alcohol and other drugs and that he had completed some programming. A psychiatric assessment spoke of his cognitive deficiencies, symptoms of Attention Deficit Hyperactivity Disorder potentially linked to fetal alcohol exposure, and that he had “deep rooted emotional issues that need to be attended to.” (

c) August 10, 2007: Mr. Ratt was convicted of aggravated assault and breach of probation. These were his first adult convictions. He received a jail sentence of 11 months (in addition to seven months credit for pre-sentence custody), followed by six months probation. The offences occurred on April 22, 2007, when Mr. Ratt got into a fight with another man and broke his jaw in three places. The sentencing judge heard an extensive review of Mr. Ratt’s personal circumstances, including the fact that he grew up in foster homes and that his family life was filled with alcohol abuse and domestic violence.

The sentencing judge commented that the assault Mr. Ratt committed was “spontaneous, but it was quite severe”, and also observed that Mr. Ratt was well aware that he frequently resorted to violence and that he “needs to address” his issues. (

d) November 7, 2007: Mr. Ratt was convicted of assault and uttering threats. These offences were committed on April 23, 2007. They involved Mr. Ratt becoming angry over a dispute between one of his sisters and his ex-girlfriend. He grabbed his sister by the neck and threw her to the floor. He then made threatening remarks to another sister. He was sentenced to 30 days concurrent on each charge, which was the product of a joint submission between the Crown and Mr. Ratt, taking into consideration the sentence imposed only three months earlier. (

e) January 19, 2009: Mr. Ratt was convicted of aggravated assault, two counts of obstructing police, breach of probation and two counts of breach of undertaking. On March 23, 2008, two days after having been released from custody on his previous sentence, Mr. Ratt was stopped by police officers who were investigating a weapons-related complaint in Deschambault Lake. He provided a false name and ran when the officers tried to arrest him. He was also on probation at the time. On May 1, 2008, Mr. Ratt had failed to meet with his probation officer.

In fact, during the time he was on probation, he never met with the probation officer at all. Then, on May 13, 2008, Mr. Ratt and another individual attacked a person named Greg Ballantyne. They “sucker punched” Mr. Ballantyne from behind, then kicked and stomped on his head after he fell, unconscious, to the ground. Mr. Ballantyne suffered serious head injuries and had to be air-lifted to hospital in Saskatoon. At the sentencing hearing, Mr. Ratt’s lawyer told the court that he was “willing to take…programming”, and that he would “abide by the lawful instruction of a probation officer”. He also said Mr.

Ratt needed alcohol treatment and explained that Mr. Ratt had committed the aggravated assault because he believed Mr. Ballantyne had sexually assaulted another person. Mr. Ratt was sentenced to 14 months imprisonment (in addition to 250 days credit for pre-sentence custody) on the charge of aggravated assault, and six months concurrent on the other charges, followed by two years of probation. The sentence was the product of a joint submission. (

f) November 3, 2010 : Mr. Ratt was convicted of carrying a firearm in a careless manner, possession of a firearm contrary to a prohibition order and three counts of breach of probation. He had been released from custody on his previous sentence on October 31, 2009. Within 15 days, he breached his probation order by not abiding by his curfew. Then, on November 21, 2009, he showed up at the residence of another person, intoxicated, and carrying a sawed-off .22 caliber rifle. Mr. Ratt proceeded to make threatening remarks to the people there.

He spent 347 days in custody (for which he was given double credit) before pleading guilty and was sentenced to an additional 6 months concurrent on each charge. At the sentencing hearing, Mr. Ratt’s lawyer acknowledged that Mr. Ratt knew he needed treatment for alcohol addiction. The sentencing judge noted the developing seriousness of Mr. Ratt’s record, especially for violence and firearm-related offences, considered the principle of restraint specific to Indigenous offenders in s. 718.2 (

e) of the Criminal Code , and accepted the joint submission of counsel. He did not add a probation order, admonishing Mr. Ratt that he needed to “take a good look” at himself, because given his record, the Crown may well pursue a Dangerous Offender application against him in the future. (

g) December 12, 2011: Mr. Ratt was convicted of assault. This offence occurred on July 5, 2011, when Mr. Ratt approached the victim from behind and punched him in the head. He was sentenced to 100 days “time served” and placed on probation for one year. Mr. Ratt pled guilty to the charge after a preliminary inquiry and the sentence was the result of a joint submission. The conditions of Mr. Ratt’s probation order included that he report to a probation officer, attend substance abuse programming and not be in Deschambault Lake. (

h) August 22, 2012: Mr. Ratt was convicted of assault causing bodily harm and breach of probation. The offences occurred in Pelican Narrows on December 31, 2011, only 19 days after his previous sentencing. On this occasion, Mr. Ratt got into a fight with another man, threw him to the ground and punched him several times in the face. Mr. Ratt broke the victim’s nose and caused other less serious injuries as well. Mr. Ratt was highly intoxicated when he was arrested the next morning. He spent the next 235 days on remand before pleading guilty. This time, Mr.

Ratt was sentenced to five months in jail, in addition to eight months credit for pre-sentence custody, and placed on probation for one year. Again, this was a joint submission. The probation order contained conditions aimed at substance abuse counselling. (

i) April 17, 2013 : Mr. Ratt was convicted of assault causing bodily harm, possessing a weapon while prohibited and two counts of breach of probation. He committed these offences on December 15, 2012, in Deschambault Lake, approximately one week after having been released from custody on his previous sentence. On this occasion, Mr. Ratt met up with another man on the street and, for no apparent reason, punched him in the face and kicked him several times after he fell to the ground. The victim suffered a broken jaw and a broken nose. Mr.

Ratt was sentenced to a jail term of 18 months, plus probation for three years, on the charge of assault causing bodily harm, and four months concurrent on the remainder. Once again, this sentence was the result of a joint submission. The sentencing judge commented on the shocking nature of Mr. Ratt’s criminal record and warned him that he could well face the prospect of a

Part XXIV Criminal Code application if he continued to commit violent offences. (

j) November 15, 2016: Mr. Ratt was convicted of possessing a knife for a dangerous purpose. This offence occurred in Deschambault Lake on May 22, 2014, shortly after he had been released from custody on his last sentence. During an altercation with some other individuals, Mr. Ratt pulled out and used a knife. Initially charged with a number of other offences, Mr. Ratt spent more than a year in remand. He pled guilty to the single charge listed here on the day set for his trial. His lawyer and the prosecutor made a joint submission for a sentence of one year, deemed to have already been served by Mr.

Ratt’s pre-sentence custody. It is clear from the sentencing transcript that the Crown had some difficulty in proving its case on some of the charges, and that difficulty prompted the joint submission and the vague nature of the circumstances put before the Court. The sentencing judge accepted the joint submission, once

again noting Mr. Ratt’s record of “horrifying violence” and admonishing him that he should “be aware how thin the ice is” if he continuedto offend violently. (

k) March 22, 2017: Mr. Ratt was convicted of assault and theft under $5,000. These offences occurred on July 31, 2016. Mr.Ratt punched another person, threw him on the ground and stole $40 from him. He was sentenced to a term of imprisonment of 18 months(reduced by 12 months to account for pre-sentence custody), followed by six months probation. Once again, the sentence was the productof a joint submission and took into account the fact that Mr. Ratt had been in custody for more than 7.5 months prior to being sentenced. (

l) March 15, 2018: Mr. Ratt was convicted of pointing a firearm at another person and possessing a firearm while prohibited.These offences occurred in Deschambault Lake on August 20, 2017, approximately one month after Mr. Ratt had been released fromcustody on his previous sentence. He was sentenced to the time he had already served in custody and placed on probation for one year.The conditions included that he have no contact with the woman at whom he had pointed the firearm and that he not be within 25kilometres of the community of Deschambault Lake without first obtaining permission from the local RCMP. (

m) September 5, 2018: Mr. Ratt was convicted of breach of undertaking, for being in Deschambault Lake contrary to theconditions of a bail order. He was also acquitted that day, following a trial, on a number of other charges. He was sentenced to 137 days,credited as time already served. (

n) September 10, 2018: five days after his most recent sentencing, Mr. Ratt committed the aggravated assault that is the subjectof the Crown’s sentence appeal. 3. The need for a focus on public protection, and the sentencing judge’s error [52] As can be seen from the history that was before the sentencing judge, Mr. Ratt had, over the course of the preceding 15 years,frequently and repeatedly committed offences involving violence and weapons that placed members of the communities of DeschambaultLake, Pelican Narrows, or wherever Mr. Ratt happened to be, in danger.

He had repeatedly been given the benefit of sentences thatacknowledged the time he had spent in custody prior to sentence. Previous sentencing judges had regularly been made aware of, andaccounted for, Mr. Ratt’s difficult upbringing and unfortunate personal circumstances, acknowledging and applying s. 718.2(e), Gladueand Ipeelee in that regard. Those sentencing judges had also repeatedly stated that they were concerned about Mr.

Ratt’s growing historyof violence and warned him on several occasions that if he did not take steps to alter his behaviour, he may well face the prospect of aDangerous Offender or Long-Term Offender application. From very early in his criminal history, Mr. Ratt was recognized as posing ahigh risk to reoffend unless he took steps to deal with his personal issues and pro-criminal attitudes. The sentences imposed on Mr.

Ratt,on many occasions, contained rehabilitative components, such as probation orders that directed him to attend for assessment andparticipate in programming related to addictions. [53] Despite all of this, there was nothing to indicate that Mr. Ratt had taken any steps to address his own rehabilitation, or that hehad any interest in doing so. The record before the sentencing judge showed that Mr. Ratt had never followed through with any of theprobation orders imposed on him. He either failed to report to the probation officer or reoffended before any rehabilitative treatment couldbe accessed. In this case, Mr.

Ratt’s counsel alerted the Court to the tragic and difficult circumstances that characterized his upbringing butoffered little to nothing to suggest that Mr. Ratt had any interest in rehabilitative programming. [54] Mr. Ratt also spoke at the sentencing hearing. He began by saying that he was disappointed with the verdicts, but acceptedthem. He went on to say that he had also been a victim of violence on many occasions and that if he had not “played an active part” todefend himself, he “could have been dead years ago”. He described the level of violence that he viewed as existing in the community.

Herelated some of his personal struggles, including occasions where he had contemplated suicide. However, apart from saying that he wouldstay away from Deschambault Lake, he offered little in the way of recognition of the need for change, apart from this: And, yeah, I get worked up, and -- you know, because I got a bunch of rage in my -- in me, you know, but then I have self-control. I oftenthink about the circumstances prior -- prior before I react. You know what I mean?

But then otherwise, you know, I'm going to -- justgoing to do good, for the best, and work on some [areas] of myself that I need to work and improve, you know, myself, which I will. And Imay be talking, but I'm going to be walking by just saying what I'm going to say I'm going to do, you know.

It's not hard to change, youknow. [55] In light of all this, the Crown is correct to assert that the situation cried out for a sentence that placed protection of the public atthe forefront of the relevant sentencing objectives to be considered. [56] This Court has repeatedly held that public protection is a key objective to be pursued when sentencing for offences involvinginterpersonal violence (see, for example, R v Sunshine, 2016 SKCA 104 at para 28, 484 Sask R 259; R v Gordon, 2011 SKCA 130 at para18, 375 Sask R 525, citing R v Stonechild (1985), (SK CA), 128 Sask R 210 (CA); R v Payne, 2007 SKCA 28 at para14, 293 Sask R 31; and R v Dustyhorn, 2019 SKCA 93 at para 49). [57] In R v Mantee, 2005 SKCA 147, 275 Sask R 114 [Mantee], this Court said that where an offender has repeatedly beenconvicted of a certain type of offence, especially one that endangers other members of the community, the “paramount objective” insentencing “must be public protection” (at para 7).

In such cases, it is necessary to remove that offender from society to ensure protectionof the public. Mantee was a case that involved a serial drinking and driving offender, but I see no reason that the same principle should notapply to serial violent offenders. [58] R v Matwayashing, 2018 MBCA 36, provides an example of the application of this principle in the context of violent offending.In that case, the offender was a 44-year-old Indigenous gang member with a lengthy record of offences involving violence, firearms andbreaches of court orders.

The Manitoba Court of Appeal increased the sentences imposed for convictions on charges of aggravated assaultand robbery from six years to nine years. In doing so the Court noted that, despite the fact Gladue factors had to be considered, theoffender’s “criminal history and repeat offending significantly engage[d] the need for protection of the public” (at para 40). The same canbe said with respect to the circumstances of Mr. Ratt’s case.

[ 59 ] This is not to say that there is no room to consider rehabilitation as an objective when sentencing for an offence involving violence, even where the offender has a prior record. But, in the case of persistent repeat violent offenders, it can be unreasonable to focus on rehabilitation to the virtual exclusion of other relevant sentencing principles (see, for example, R v Papequash , 2014 SKCA 99 , 442 Sask R 308).

In R v Kahnapace , 2001 SKCA 55 , 207 Sask R 247, this Court increased an offender’s sentence on charges of armed robbery from a two year less a day conditional sentence order (in addition to nine months pre-sentence custody) to four years imprisonment. The offender, a 23–year–old Indigenous man, had a criminal record that was much shorter than Mr. Ratt’s (42 previous convictions, including eight for violence or weapons offences, and numerous breaches of bail and probation orders).

The Court found that the sentencing judge erred by “rely[ing] solely on the principle of rehabilitation and essentially ignor[ing] the other sentencing principles” and, as such, the resulting sentence did not reflect the gravity of the offences, or pay enough attention to the principles of deterrence, denunciation, or the need to protect the public (at para 6). [ 60 ] Although the manner in which a sentencing judge chooses to weigh and balance various sentencing factors is generally entitled to deference, placing primary emphasis on the objective of rehabilitation where the circumstances of the case and the offender’s history provide no reasonable basis for doing so can be an unreasonable exercise of discretion (see, for example, R v Pelly , 2006 SKCA 60 at paras 30–31 , 279 Sask R 252). [ 61 ] In R v Khawaja , 2012 SCC 69 , [2012] 3 SCR 555 [ Khawaja ], the Supreme Court of Canada agreed that the absence of rehabilitative prospects is an important factor to be considered in sentencing, “particularly in regard to s. 718 (

c) and the need to separate offenders from society, where necessary” (at para 122). On that point, McLachlin C.J.C., writing for the Court, cited the following passage from R v Downey , 2010 ONSC 1531 [ Downey ], with approval: Where it is apparent that the offender is a dangerous person, who is likely to compromise public safety if released, he should be detained for a period of time sufficient to reasonably conclude that such danger has subsided.

The duration of the sentence must be sufficient to give the correctional authorities the necessary time to properly treat the offender and for the National Parole Board to assess the risk of his reoffending. [ 62 ] The Chief Justice went on to say, at paragraph 123, that the “lack of information on a person’s probability of re-offending, in the face of compelling evidence of dangerousness, is sufficient to justify a stiffer sentence”.

Although the Court in Khawaja was dealing with an appeal from a sentence for terrorism offences and the “probability of re-offending” with which the Court was concerned was violent jihad, the principle the Court adopted from Downey resonates in the case of repeat violent offenders who have committed offences similar to those committed by Mr. Ratt.

That is, where there is clear evidence of the danger an offender poses to the community and little or no evidence of positive prospects for rehabilitation, a sentence of incarceration must be of sufficient length to separate the offender from society for long enough to address the goal of protecting the public. [ 63 ] This is not to say that it is necessarily unreasonable for a sentencing judge to give some play to the objective of rehabilitation when sentencing for a violent offence, even where the offender has past convictions for violence.

This is especially true where, as the sentencing judge found in this case, there is a clear link between the offender’s background and experiences as an Indigenous person and the offences committed.

In Friesen , the Supreme Court of Canada reaffirmed 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 and background factors that have played a role in bringing the offender before the court may have a mitigating effect on moral blameworthiness or affect the proper balance of sentencing objectives in the pursuit of a fit sentence (at para 92). [ 64 ] But this does not mean that the primary focus must , or even necessarily should, be on rehabilitation when sentencing an Indigenous offender.

Nor does it mean that s. 718.2(

e) and the approach mandated by Gladue and Ipeelee (and now, Friesen ) prevent sentencing judges from emphasizing sentencing objectives such as separating offenders from society for the purpose of public protection in appropriate cases. In R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ], Richards C.J.S. observed that: [38] … s. 718.2 (

e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2 (

e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation ( Gladue at para 78 ). As the Supreme Court has said, “The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances” ( Gladue at para 81 ).

In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives… [ 65 ] What remains clear is that sentencing judges are required, as they always have been, to consider all relevant sentencing objectives and principles. It is an error to unreasonably emphasize one sentencing principle to the exclusion of other relevant sentencing principles. [ 66 ] In this case, while the sentencing judge was correct to give careful consideration to Mr.

Ratt’s personal circumstances and background, and to consider them along with systemic factors, it was unreasonable to focus, as it appears he did, almost entirely on the sentencing objective of rehabilitation. The sentencing judge’s focus on rehabilitation propelled him to the conclusion that a fit sentence could be achieved only by imposing the shortest possible sentence that would allow Mr. Ratt to access the programming available in the federal penitentiary system. With the greatest of respect, in light the record before him, this was unreasonable. There was no evidence that Mr.

Ratt was interested in availing himself of such programming and, if he decided to avail himself of such programming, no evidence to support a conclusion that he would be likely to remain engaged in or benefit from it. His track record firmly established the opposite. In light of Mr.

Ratt’s unrelenting history of serious violent offending, it was unreasonable, in my respectful view, to place rehabilitation at the forefront rather than focusing on separating him from society to protect the public. [ 67 ] Relatedly, the sentencing judge also erred by failing to appreciate the Crown’s submission advocating for a lengthy jail sentence for what it was: a call for public protection to be given primary focus. Instead, the sentencing judge characterized the Crown’s submission as seeking punishment.

This error diverted the sentencing judge’s focus from the task before him. [ 68 ] These errors clearly had an impact on the sentence and, as such, it falls to this Court to intervene and determine a fit sentence for Mr. Ratt.

4. Determining a fit sentence [ 69 ] In determining a fit sentence for Mr. Ratt, I bear in mind that it is not absolutely necessary to vary the sentence imposed by the sentencing judge simply because I have found an error in principle that permits intervention. Even in the face of an impactful error, an appellate court may affirm the sentence imposed by a sentencing judge if it determines that the original sentence is the sentence that should be imposed.

Also, when conducting its fresh sentencing analysis, an appellate court must defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent they are not affected by error in principle ( Friesen at paras 28– 29 ). [ 70 ] I begin the process of determining a fit sentence for Mr. Ratt by considering the fundamental purpose of sentencing set out in s. 718 of the Criminal Code , and the appropriate balance of objectives listed in that section. In light of the violent nature of the aggravated assault committed by Mr.

Ratt and his lengthy and unrelenting record of convictions for similar offences, the danger that he poses to the community is clear. As such, it is appropriate to focus on public protection as the primary objective in sentencing. The relevant jurisprudence also makes clear that denunciation and deterrence must be given prominence as well. Mr.

Ratt’s repeated offending, his complete lack of compliance with any sort of community or rehabilitative measures in the past, and the lack of evidence to suggest that he is amenable to rehabilitative programming compel the conclusion that it is necessary to separate him from society for a substantial period to achieve the objective of public protection. Rehabilitation cannot be ignored, but in Mr.

Ratt’s case, it simply must take a back seat to more pressing objectives. [ 71 ] Regardless of the appropriate balancing of sentencing objectives, a fit sentence must also comply with the fundamental principle of proportionality, set out in s. 718.1. That is to say, the sentence must adequately reflect the gravity of Mr. Ratt’s offence and the degree of his responsibility in committing it. [ 72 ] In R v Yuzicapi , 2011 SKCA 134 , 377 Sask R 133, this Court identified three important considerations in determining the gravity of the offence: (

i) the nature and comparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. The Supreme Court expressed a similar sentiment in Friesen , instructing that when applying the proportionality principle, courts need to take into account the wrongfulness and the harmfulness of the offender’s conduct. Wrongfulness and harmfulness are relevant considerations with respect to both the gravity of the offence and the degree of responsibility of the offender.

Taking wrongfulness and harmfulness into account ensures that the proportionality principle serves its function of holding offenders responsible for their actions, as well as properly condemning the offence and the harm caused by it ( Friesen , at para 75 ; see also Nasogaluak , at para 42 ). [ 73 ] There is also a more nuanced element to the determination of an offender’s degree of responsibility, because the concept of responsibility cannot be completely separated from the offender’s personal circumstances.

The concept of responsibility takes into account such considerations as the level of mens rea in the offence definition, the offender’s history and background, his or her mental capacity, and the motive or justification for committing the offence (see, for example, R v Gejdos , 2017 ABCA 227 at paras 39–40 , [2017]12 WWR 63). In the case of Indigenous offenders, s. 718.2(

e) requires particular attention to the systemic and background factors that have shaped the offender’s personal circumstances, because those factors may have an impact on the offender’s moral culpability ( R v J.P. 2020 SKCA 52 at para 65 , 62 CR (7th) 328 [ J.P. ]). [ 74 ] In this case, there is no doubting the objective gravity of the offence. Aggravated assault is the most serious category of non- lethal, non-sexual assault in the Criminal Code . In order to be guilty of aggravated assault, one must commit an assault that wounds, maims or disfigures another person.

The maximum sentence for the offence is 14 years imprisonment. All of this places it in the upper echelon of offences, in terms of objective gravity. [ 75 ] The sentencing judge found the offence at issue to be one of “significant gravity”. Even though the sentencing judge observed that the injuries Mr. Ratt caused to the victim fell at the lower end of what constitutes aggravated assault in law, he also found the gravity of the offence to be magnified by a number of factors, including the unprovoked and unjustified nature of the assault and Mr.

Ratt’s motivation committing it, namely using violence against one person to send a message to another. I agree with this characterization. [ 76 ] As to Mr. Ratt’s degree of responsibility in committing the offence, the sentencing judge observed that the deliberate and unprovoked nature of the assault, and the fact that Mr. Ratt was relatively sober at the time of committing it, all worked to increase his degree of responsibility. Balanced against that, however, the sentencing judge found that Mr.

Ratt’s degree of responsibility was lessened because there was a clear link between his dysfunctional background and systemic factors and the commission of this offence. While I accept that background and systemic factors serve, to some extent, to reduce Mr. Ratt’s personal responsibility, the sentencing judge in this case observed that Mr. Ratt has repeatedly been given credit on this basis by judges who have sentenced him for other offences involving violence. In my view, the fact that Mr.

Ratt’s violent conduct has continued, without relent, in the face of such findings limits the extent to which reduction of responsibility on that basis can be given effect in determining a fit sentence. [ 77 ]

Section 718.2(

a) provides that a sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances. In this case, the sentencing judge found the primary aggravating factors to be Mr. Ratt’s “unrelenting criminal record for violence”, the seriousness of the injuries caused and their impact on the victim. While he did not make explicit mention of having found any mitigating factors, it would appear Mr. Ratt’s background and personal circumstances were considered to be mitigating. I take no issue with these findings. [ 78 ]

Section 718.2(

b) embodies the principle of parity. It provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Parity does not mean uniformity and nor does it trump proportionality in sentencing. Instead, parity informs the proportionality principle; it helps to define what is a proportionate sentence, as the Court explained in Friesen : [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality . A consistent application of proportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( R. v. L.M ., 2008 SCC 31 , [2008] 2 S.C.R. 163, at paras. 36-37 ; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at paras. 78-79 ).

[33] In practice, parity gives meaning to proportionality . A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary.

They are the practical expression of both parity and proportionality . [ 79 ] The principle of parity does not detract from the need for sentences to be individualized. In R v Pham , 2013 SCC 15 at para 9 , [2013] 1 SCR 739, the Supreme Court said that differing personal circumstances between offenders can justify differing sentences for similar offences. Parity is also not a matching exercise.

While the parity principle is grounded in concepts of fairness, it is rare that the circumstances of two offences and the offenders who commit them will match perfectly ( R v Klemenz , 2015 SKCA 89 at paras 45–46 ), [2016] 1 WWR 234). [ 80 ] In that same vein, although appellate courts may set sentencing ranges for offences, such ranges are primarily guidelines, not hard and fast rules ( Lacasse at para 60 ). A fit sentence may be above or below an established range where the circumstances justify it.

The focus must remain squarely fixed on crafting a proportionate sentence for the offender before the court, for the offence committed, in the particular circumstances of the case.

A sentence must be individualized to the offender and the offence, within the limits permitted by the principles and purposes laid out in the Criminal Code ( R v Knott , 2012 SCC 42 at para 1 , [2012] 2 SCR 470). [ 81 ] In R v Sayazie , 2010 SKCA 14 , 346 Sask R 147 [ Sayazie ], this Court held that the general sentencing range for aggravated assault is a term of imprisonment of between two and four years “even assuming an offender of previous good character with no criminal record” (at para 7).

Sayazie was a case in which the offender inflicted a prolonged beating on his common–law spouse and dragged her out into the cold, clad only in a sweatshirt and underwear in -39°C temperatures. The victim suffered permanent injuries from frostbite. The offender had no previous record. This Court increased the 18–month sentence imposed by the trial judge to one of 3.5 years. [ 82 ] A review of the appellate-level sentencing jurisprudence in this province reveals that, in the majority of reported cases, sentences for aggravated assault fall within the range described in Sayazie .

The general exceptions, at least as they pertain to sentences above the four-year mark, are situations in which the offence involves the use of firearms, a home invasion, an offence committed against an infant or young child, or an offence resulting in permanent and disabling injuries to the victim. [ 83 ] One other circumstance that tends to push sentences above the four–year mark for aggravated assault is where the offender has a lengthy record for violent offences. In a significant number of cases, such offenders have been the subject of applications under

Part XXIV of the Criminal Code , and thus sentenced as Long-Term or Dangerous Offenders. While Mr. Ratt’s record for violence is similar to some offenders who have been the subject of such applications, I cannot consider those cases as relevant in the parity analysis, given that the Crown did not make such an application here. [ 84 ] However, one example of a case that departed from the top end of the Sayazie range, but did not involve the exceptions noted above, was R v Durocher , 2002 SKCA 17 , 217 Sask R 88 [ Durocher ]. In that case, the offender was a 38–year–old male who, like Mr.

Ratt, grew up in the foster care system and had a lengthy history of substance abuse. The offence involved Mr. Durocher stabbing the victim repeatedly, causing her to suffer long–term physical and emotional problems. Mr. Durocher, like Mr. Ratt, had a lengthy record (61 previous convictions), that included entries for assault, robbery and sexual assault. The offence was committed less than two weeks after Mr. Durocher’s release from the service of his previous sentence and was described by this Court as without provocation and “totally arbitrary” (at para 3).

The trial judge imposed a sentence of five years imprisonment. This Court allowed a Crown appeal and increased the sentence, concluding that a sentence of eight years was appropriate in light of “the extremely brutal and arbitrary nature of this violent assault and the history of the accused” (at para 4). [ 85 ] While the circumstances of the offence in Durocher were obviously much more serious than those in this case, Durocher is still useful in the parity analysis. It is difficult to find reported sentencing decisions, outside of

Part XXIV proceedings, where an offender being sentenced for aggravated assault has a record anywhere near as serious as Mr. Ratt’s. Durocher comes close, but Mr. Ratt’s criminal record is lengthier and, overall, more violent than the record of the offender in that case. Therefore, notwithstanding the difference in the severity of the assault, Durocher is still relevant to this portion of the analysis because it illustrates that an offender’s record for violence properly serves as a factor that can push the lengt

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