R v Charles, 2021 SKCA 75

Court of Appeal for Saskatchewan Docket: CACR3319 Citation: R v Charles, 2021 SKCA 75Date: 2021-03-04 Between:Her Majesty the QueenAppellantAndVictor Pierre CharlesRespondentBefore: Jackson, Leurer and Tholl JJ.A.Disposition: Appeal dismissed (orally)Written reasons by: The Honourable Madam Justice JacksonIn concurrence: The Honourable Mr. Justice Leurer The Honourable Mr. Justice ThollOn appeal from: Provincial Court, La RongeAppeal heard: March 4, 2021Counsel: Kelly Kaip for the Appellant Catriona Kaiser-Derrick for the Respondent Jackson J.A. I.

Introduction [1] Victor Pierre Charles was charged with two Criminal Code offences: committing an assault while threatening to use a weaponcontrary to s. 267(

a) and carrying a weapon for a purpose dangerous to the public peace contrary to s. 88(2). A judge of the ProvincialCourt of Saskatchewan found Mr. Charles guilty after trial (R v Charles (26 September 2019) La Ronge, Info# 90140070 [ConvictionDecision]) and sentenced him to 72 days (time served) for both offences and two years’ probation (R v Charles (8 November 2019) LaRonge, Info# 90140070 [Sentencing Decision]). [2] The Crown appealed Mr. Charles’s sentence. The Crown’s appeal was dismissed from the bench with reasons to follow.These are those reasons. II.

Background [3] The background is taken from the pre-sentence report [PSR], which addresses the factors listed in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], counsel’s sentencing submissions, the Conviction Decision and the Sentencing Decision. A. Circumstances leading to the Conviction Decision [4] At the time of the offences, Mr. Charles was living on the streets of La Ronge. It was his habit to spend some time most daysin the vicinity of the local liquor store, a bargain store and the La Ronge Hotel and Suites, referred to locally as the Motor Inn.Mr.

Charles, however, was banned from being on the premises of the Motor Inn. [5] The judge found that Mr. Charles resented that ban and frequently broke it or skirted it by hanging about on the edges of theproperty. Since he had broken the ban in the past, he and the security guard for the Motor Inn had a prior history. There had been as manyas 50 past contacts between the two, which involved insults and threats on both sides and “possibly physical contact”. [6] On February 22, 2019, Mr. Charles was just leaving the parking lot of the Motor Inn when he and the security guard had analtercation.

On this occasion, unlike all past incidents, Mr. Charles took out an 11-inch knife from his sleeve and chased the guard as heran back into the Motor Inn. When the guard reached the Motor Inn, Mr. Charles walked away. Mr. Charles was highly intoxicated at thetime. The police apprehended him shortly thereafter. Mr. Charles still had the knife in his possession. He was generally cooperative. Heturned over the knife to the police and he gave a warned statement to the police. In his statement he admitted all of the essential elementsof the two offences.

However, he also insisted that he was defending himself from the considerably larger guard who weighs 350 poundsand stands six feet and two inches tall. [7] On February 23, 2019, Mr. Charles was charged with the two offences mentioned above: assault while threatening to use aweapon and carrying a weapon for a purpose dangerous to the public peace [the February 22 Offences]. He pled not guilty. He was,however, not held in custody. He was released on an undertaking that included conditions directing where he would live and that he mustreport to a probation officer. [8] The only issue at trial was whether Mr.

Charles was defending himself. The trial judge found that Mr. Charles was “largelytelling the truth to the police” in that he “pulled a knife to defend himself from the attack of a larger man”. The judge described the guardas “being quite aggressive” and “very provocative and very near to calling on the accused to fight”. He said the guard used words like,“What are you going to do about it?” and “What’s different this time?” The judge construed these words “as an invitation to fight”.

Thetrial judge noted that the guard “was inclined to put some spin on the ball” by trying to appear less intimidating when he testified by

slouching down in the witness box. The provocative nature of the guard’s actions and the difference in size between the two men was the basis of Mr. Charles’s assertion that he had been acting in self-defence. [ 9 ] However, in the result, the trial judge did not accept Mr. Charles’s defence. He found that Mr. Charles was “not acting reasonably” because (

a) he knew he was a trespasser, (

b) he brought an attitude of resentment to the confrontation as a result of being considered a trespasser, (

c) the victim was alone and unarmed, and (

d) the only proportionate response for Mr. Charles was to walk away. Instead, he took out a “fearsome” knife, which would be useful in “quartering an animal”. As Mr. Charles’s defence had failed, and he had admitted the essential elements of the charges in a warned statement, the trial judge found him guilty on both counts. [ 10 ] Following conviction, Mr. Charles requested a PSR. The judge agreed. He directed the “preparation of a pre-sentence report to look, in particular, at Mr. Charles’s Gladue factors”. Since sentencing would be adjourned to await the PSR, Crown counsel asked that Mr.

Charles be remanded into custody. The judge declined saying, “He has been released on an undertaking and apparently has behaved himself since the 1st of March. And the terms are appropriate and I think he should be rewarded for complying with his undertaking, so, no, I’m not going to remand him pending sentence”. This was September 26, 2019. The matter was adjourned to November 8, 2019. B. Intervening offence [ 11 ] On September 29, 2019, Mr. Charles’s former partner, Ms. S.B., flagged down a police car. She told the officers that, earlier in the evening, Mr. Charles had hit her. At the time, Mr.

Charles was on a recognizance not to have any contact with Ms. S.B. The police arrested Mr. Charles shortly after speaking with Ms. S.B. When describing the circumstances of the encounter to the trial Court, Crown counsel indicated the police had advised that Ms. S.B. “refused to provide a statement, refused medical attention, had no noticeable injuries, and simply wanted to be driven down to [a specific address]”. As with respect to the February 22 Offences, Mr. Charles cooperated with the police and provided a full statement. He did not admit he had assaulted Ms.

S.B., but acknowledged he had been drinking and he had had contact with her. He was charged with three offences, including one count of breaching his recognizance by being in contact with Ms. S.B. He was taken into custody pending the disposition of these new charges. [ 12 ] On November 8, 2019, Mr. Charles pled guilty to the sole count of breaching his recognizance arising from being in contact with Ms. S.B. on September 29, 2019 [September 29 Offence]. All other charges arising out of that incident were stayed.

The PSR was filed and the judge heard sentencing submissions from the Crown and the defence with respect to the February 22 Offences and the September 29 Offence. C. PSR [ 13 ] Mr. Charles was born in 1980 in La Ronge, Saskatchewan. He is Woodland Cree. He spent the early part of his childhood in the community of Grandmother’s Bay, Saskatchewan. He is a status member of the Lac La Ronge Indian Band. [ 14 ] Mr. Charles grew up with family violence. His father was a survivor of the residential school system and was severely addicted to alcohol. His father would regularly beat his mother and his siblings.

His mother also abused alcohol. Fighting among his parents was common. At one point, the violence in the home resulted in his mother shooting his father, for which she served some custodial time. His younger brother shot and killed his older brother in 2001, for which he was also incarcerated. Both of Mr. Charles’s parents died at a young age of lung cancer. Mr. Charles lives with the grief of the loss of his parents and his brother and the disintegration of the family unit. [ 15 ] Following the incident where his mother shot his father, Mr.

Charles spent about six months in foster care and then four years in the residential school system from the age of eight to twelve. While there, Mr. Charles was severely abused by a gym teacher, a coach and nurses. As part of the national compensation program for residential school survivors, Mr. Charles received a significant settlement, notably $70,000. The intergenerational effects of the residential school system and Mr. Charles’s own time within that system have had a long-lasting impact and continue to affect Mr. Charles. When he was 13 years old, he “huffed gasoline and nail polish”.

He began seriously using alcohol when he was 16. He continues to struggle with substance abuse, drinking “until he passes out and sometimes experiences blackouts”. He is estranged from most of his remaining siblings, all of whom attended residential school. He has infrequent contact with his two children, who are young adults. [ 16 ] One part of the PSR described Grandmother’s Bay, its history and its present situation with community members being affected by alcohol abuse, violence and suicide: In the late 1700s fur traders found their way North and began to trade with the Cree who inhabited the area.

The Cree often acted as middlemen transporting fur to Hudson Bay posts via the Churchill River system and La Ronge became a notable stop-over for travelers. Missionaries followed the fur traders and settlements were established. February 11, 1889 Chief James Roberts signed the Adhesion to Treaty 6 representing the James Robert Band which later was re-named the Lac La Ronge Indian Band. Grandmother’s Bay is part of Lac La Ronge Indian Band and according to the 2011 Statistics Canada data has a population of 337 people with a median age of 20.9 and 63.2% of the population over the age of 15 years.

There are 90 private households with 3.7 persons being the average number a household. Of the 215 people that are above the age of 15 years, 150 have no certificate, degree or diploma, 30 have a high school diploma or equivalent, 25 have an apprenticeship or trade certificate or diploma. Although residents of Grandmother’s Bay continue to embrace their traditional practices of hunting, trapping and fishing, community members are affected by alcohol abuse, violence and suicide . (Emphasis added) [ 17 ] The PSR described Mr. Charles’s past criminal involvement.

With a correction made to the PSR by Crown counsel at trial, it was established that Mr. Charles had been convicted or pled guilty to the following violent offences: four assaults, two aggravated assaults and one assault causing bodily harm. This last offence, which occurred in 2010, involved Ms. S.B. for which Mr. Charles received a sentence of three years. The record also included six offences involving a failure to comply with court orders. The author of the report

indicated that from March 1, 2019, until the September 29 Offence, Mr. Charles reported regularly in accordance with his undertaking. [18] The author of the PSR classified Mr. Charles as a high risk to re-offend according to the Saskatchewan Primary RiskAssessment, but indicated that the likelihood of his reoffending could be reduced by targeting risk factors such as residence, employmentstability and alcohol abuse. She indicated he showed some progress with respect to his addiction to alcohol. He has had “better controlover it in the last two years”.

He attended a detox facility in May of 2019 and he had planned to attend the Cree Nation Treatment Centrein 2019 but lost his bed because he did not contact the centre in time. D. Submissions to the trial judge regarding sentencing [19] In his submissions, trial Crown counsel focussed on Mr. Charles’s record, the number of assaults and his failure to comply withcourt orders. He emphasized the seriousness of the February 22 and September 29 Offences.

Crown counsel also relied on R v Drysdale,2016 SKQB 160 [Drysdale], where an accused received a sentence of two years less a day for an assault, while threatening to use aweapon contrary to s. 267(

a) of the Criminal Code in similar circumstances. He asked for a global penitentiary term of two years. [20] Defence counsel took a different view of the seriousness of Mr. Charles’s record and of all of the new offences. With respect tothe record, she pointed out that Mr. Charles had not committed any acts of violence since 2010. Between 2010 and February 22, 2019, theonly offence on Mr. Charles’s record was one count of shoplifting to which he had pled guilty. Defence counsel emphasized the gap in therecord as significant, given the stressors that Mr.

Charles had endured while essentially living on the streets since 2013 when he was lastreleased from custody. [21] With respect to the February 22 Offences, defence counsel described the provocative nature of the guard’s actions in calling onMr. Charles to respond. She distinguished Drysdale and relied heavily on the PSR and her understanding of Mr. Charles’s Gladue factors. [22] Defence counsel characterized the September 29 Offence as being one incident in a long period that was otherwise withoutcriminal activity. She explained it in terms of the stress Mr.

Charles faced because of the delay in bringing the matter on for trial and thelengthy time he had spent on conditions. She observed that the Crown witness was not present and Mr. Charles could have put the Crownto proving the offence. Instead, he pled guilty. [23] She advised the Court that Mr. Charles, while estranged from his immediate family, does have support from first cousinsresident in Grandmother’s Bay and who were present in the courtroom on the day of sentencing. [24] Defence counsel asked for a suspended sentence for the February 22 Offences and a sentence of time served for the September29 Offence.

As outlined above, Mr. Charles served 48 days of pre-sentence custody after being arrested for the latter offence. Afteraccounting for pre-sentence credit, the suggested sentence was 72 days. E. Sentencing Decision [25] I will review the trial judge’s reasons for sentence in greater detail as part of the analysis of the Crown’s appeal. At this point, itis sufficient to note that the trial judge largely accepted the submissions of defence counsel. He placed the s. 267(

a) offence at the “lowestlevel for that particular offence”. He gave significant weight to the Gladue factors that had been mentioned in the PSR and by defencecounsel. He also gave weight to the fact that Mr. Charles’s actions had been provoked by the guard. He found that Mr. Charles wasoffending less with the passage of time. He pointed to the gap in the record and how, for the most part, Mr. Charles had functioned well onhis undertaking. He mentioned his cooperation with the police. In the result, he imposed a sentence of 72 days (time served), for theFebruary 22 Offences plus probation for two years.

With respect to the September 29 Offence, the trial judge suspended the passing ofsentence for six months and placed him on a separate six-month probation order. According to the terms of this second probation order,Mr. Charles was obliged to perform 50 hours of community service. [26] As noted, the Crown appealed the sentence for the February 22 Offences. The Crown did not appeal the sentence for theSeptember 29 Offence. Mr. Charles did not appeal the two-year probation order. III.

Standard of Review [27] In R v Ratt, 2021 SKCA 7 [Ratt], and R v Kishayinew, 2021 SKCA 32 [Kishayinew], this Court reviewed the standard for theappellate review of sentencing as outlined in R v Friesen, 2020 SCC 9, 444 DLR (4th) 1 [Friesen]. [28] In Friesen, Wagner C.J.S. and Rowe J. set the standard of review as follows: [25] Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and thesubmissions in person (Lacasse, [2015 SCC 64] at para. 48; R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46).The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of thecommunity where the crime was committed (Lacasse, at para. 48; R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, atpara. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for asentencing judge’s for good reason (Lacasse, at para. 48; R. v.

Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit(para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle includean error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

The weighing orbalancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trialjudge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.),at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent

from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact onthe sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrablyunfit. IV. Crown’s Appeal [29] In its appeal to this Court, the Crown put forward five main arguments, which, in its view, should have resulted in apenitentiary term going forward of two years. In

summary form, the Crown’s grounds of appeal were as follows: (

a) the judge unreasonably overemphasized the sentencing principle of rehabilitation and underemphasized the principles ofdenunciation and deterrence; (

b) the sentence was not proportionate to the gravity of the offence and the degree of responsibility of the offender and therebyoffends s. 718.1 of the Criminal Code; (

c) the judge erred in failing to take into consideration that the sentence imposed should be similar to sentences imposed onsimilar offenders for similar offences in similar circumstances as outlined in s. 718.2(

b) of the Criminal Code; (

d) the judge erred in his application of s. 718.2(

e) of the Criminal Code; and (

e) the sentence was demonstrably unfit. [30] The Crown asserted first that the judge was not entitled to emphasize the sentencing principle of rehabilitation becauseMr. Charles is a “recidivistic violent offender” who has had a prior poor performance on non-custodial orders. Crown counsel submittedthat, in light of Mr. Charles’s record, protection of the public should have been the dominant sentencing principle. [31] With respect to the second ground of appeal, the Crown argued that the trial judge’s characterization of the s. 267(

a) offence asbeing at the lowest end of the scale was “simply wrongheaded”. The Crown’s argument emphasized that a security guard “was menacedwith an 11-inch knife while trying to remove the grossly intoxicated respondent from private property”. It was further argued that therewas no provocation; but, even if it were present, it would not automatically “involve findings of insignificant moral culpability …”(referring to R v Stone, (SCC), [1999] 2 SCR 290 at 248 [Stone], as cited in R v Neepin, 2020 MBCA 55 at paragraph 68[Neepin]). Further, the Crown suggested that even if Mr.

Charles’s Gladue factors served to lower his moral culpability, they could notlead a trial judge directly to the conclusion that his sentence should be reduced (referring to R v Chanalquay, 2015 SKCA 141 at para 54,472 Sask R 110 [Chanalquay]). [32] With respect to the third ground and the principle of parity, the Crown alleged that the judge failed to recognize the precedentof Drysdale, where the Court imposed a sentence of two years less a day and a probation order of three years for the constructive assaultof a security guard at a business.

The Crown also referred the Court to R v Fiddler, 2005 SKCA (SentDig) 21, where the offender had helda knife to the neck of a cab driver, and this Court dismissed the offender’s appeal from a one-year custodial sentence. [33] In its fourth ground of appeal, the Crown claimed that the judge erred in his application of s. 718.2(

e) because there was noevidence to support the notion that it was appropriate to give more weight to the principles of restorative justice than the principles ofdeterrence, denunciation and separation from society. The Crown asserted that “there was little evidence to support the appropriateness ofa non-custodial sentence” and Mr. Charles’s “risk factors have remained the same and he has displayed little insight into his crime”.

Inshort, it was argued that the “elevation of the principle of restorative justice was an error in principle which gave rise to a sentence thatwas demonstrably unfit”. [34] In its fifth ground, the Crown claimed that the sentence was demonstrably unfit because of Mr. Charles’s “high moralblameworthiness”. It submitted that the trial judge erred in determining that the Gladue factors lessened Mr. Charles’s moral culpability tothe extent that a non-custodial sentence was appropriate.

Given the overlap between these arguments and those with respect toproportionality and s. 718.2(e), I will address the question of demonstrable unfitness in the context of those grounds. [35] The Crown asked this Court to impose a penitentiary sentence of two years. V. Analysis A. Applicable principles [36] This Court has written extensively about the sentencing of Indigenous offenders: Chanalquay; R v Whitehead, 2016 SKCA 165,[2017] 5 WWR 222 [Whitehead]; R v Delorme, 2017 SKCA 3; R v McKay, 2019 SKCA 129; R v J.P., 2020 SKCA 52, 62 CR (7th) 328[J.P.]; Kishayinew; and Ratt, as well as many others.

All of these decisions emphasize the importance of approaching the sentencing ofIndigenous offenders in a different way. [37] In Chanalquay, Richards C.J.S. summarized the salient features of Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433[Ipeelee] as follows: [34] The proper approach to the application of s. 718.2(

e) was first elaborated by the Supreme Court in Gladue. Some of the key pointsmade in that decision are set out below: (

a) The purpose of s. 718.2(

e) is to ameliorate the problem of overrepresentation of Aboriginal people in prisons by encouraging judges toconsider a restorative justice approach to sentencing (para 93).

(

b) In appropriate cases, the goals of restorative justice may take on greater weight and traditional sentencing goals will be less relevant (para 77). (

c) The effect of s. 718.2(

e) is to alter the method of analysis sentencing judges are required to use in determining an appropriate sentence for an Aboriginal offender (para 75). (

d) In sentencing an Aboriginal offender, a judge must consider: (

i) the unique systemic or background factors that may have played a

part in bringing the offender before the courts; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage or connection (para 66). (

e) Judges must take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but case-specific information will have to come through counsel or pre-sentence reports (para 93). (

f) Systemic and background factors, on their own, do not necessarily dictate any particular sentence for Aboriginal offenders. They provide a context for considering case-specific information (para 88). (

g) The lack of alternative sentencing programs particular to an Aboriginal community does not eliminate the obligation of a sentencing judge to impose a sanction that takes into account principles of restorative justice (paras 74, 93). (

h) If there is no alternative to incarceration available, the length of the jail term imposed on the offender must be carefully considered (para 93). (

i) Section 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal (para 88). [35] In Ipeelee , the Supreme Court provided further explanation with respect to the operation of s. 718.2 (e). In that case, the Court made three points of particular relevance here: (

a) There is no discretion as to whether s. 718.2 (

e) should be considered in a case involving an Aboriginal offender. The application of the Gladue principles is required in every case (para 86). (

b) An offender is not required to establish a causal link between background Gladue factors and the commission of the offence in issue before a judge is entitled to consider such factors in his or her sentencing decision (paras 81–82). (

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83). [ 38 ] Chief Justice Richards made additional observations in Chanalquay , which are relevant in approaching the sentencing of Indigenous offenders: (

a) The analysis mandated by s. 718.2(

e) is an integral part of the reasoning, which leads to a fit sentence ( Gladue at para 88 , and Chanalquay at para 37 ). (

b) While systemic and background factors are not the only considerations that are relevant in determining an offender’s blameworthiness, they may speak to moral culpability to an extent that would lead to a different sort of sentence than what might normally be imposed for the same offence ( Ipeelee at paras 71 and 73 , and Chanalquay at para 40 ). (

c) A sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue but the relevant dynamics of the community and the circumstances of the victim ( Chanalquay at para 43 ). [ 39 ] At paragraph 38 of his reasons, Richards C.J.S. stressed this phrase from paragraph 80 of Gladue : “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (emphasis in Gladue ). [ 40 ] In Whitehead , Caldwell J.A. provided these insights with respect to sentencing an Indigenous offender: (

a) Section 718.2(

e) can play an important role in reinforcing the application of proportionality with respect to Indigenous offenders and in protecting against overly-harsh treatment by the criminal justice system (at para 29). (b) “Crafting a proportionate sentence requires consideration of the moral culpability of an offender and the gravity of an offence in a manner that recognises both the ways a particular offender is similar to other offenders as well as the unique aspects of that offender’s particular circumstances” (at para 30). (

c) Section 718.2(

e) serves the principle of proportionality by directing courts to “consider sentences other than incarceration and, in so doing, to look to the ways in which the circumstances of Aboriginal offenders are different due to the effects of colonisation and a history of discrimination” (at para 30). (

d) The treatment of Indigenous offenders by the criminal justice system “must seek to provide true equality by accounting for the harms suffered by Aboriginals” (at para 30). (

e) For Indigenous offenders, this includes the “disadvantages suffered as a result of colonisation and a history of discrimination. In this way, s. 718.2 (

e) promotes the fundamental principle of proportionality in sentencing” (at para 32).

(

f) The sentencing judge’s task when faced with a claim under s. 718.2(

e) is to determine (a) “the extent to which an Aboriginal offender’s unique circumstances may have had a bearing on his or her moral culpability, for the purposes of s. 718.1 of the Criminal Code ”, and (b) “whether and how the relevant sentencing objectives can be actualised by way of sanctions other than imprisonment or through the term of imprisonment imposed” (at para 56; see also para 58). (g) “The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning.

Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge” (at para 63). (h) “[W]here a sentencing court has given effect to R v Gladue considerations under s. 718.1 , that decision and the sentencing court’s findings as to the extent to which R v Gladue considerations have affected the Aboriginal offender’s moral culpability in terms of sentence proportionality – however briefly stated – must be accorded all the deference that is properly due to the sentencing court in the wise and judicial exercise of the ‘specialized discretion’ Parliament has reposed in the sentencing court under the Criminal Code ” (emphasis in original, at para 74). [ 41 ] In J.P. , Leurer J.A. emphasized that even if a fit sentence requires incarceration, the “requirement for proportionality demands that the impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determining the period of incarceration” (at para 63).

This is so because a sentencing judge must account for “ any factor affecting moral blameworthiness (whether by increasing or decreasing it)” and those factors “ must be given weight in order to impose a fit sentence based on the principle of proportionality” (emphasis in original, at para 64). B. Application of the law to this appeal [ 42 ] Far from committing the errors that the Crown suggested, the trial judge faithfully adhered to the principles set out in Gladue , Ipeelee , Chanalquay , Whitehead and J.P .

Not only did he quote from the first three of these decisions, his reasons were guided by them in substantive and meaningful ways. This trial judge was sentencing for these offences committed by Mr. Charles harming this victim in the community of La Ronge . [ 43 ] The trial judge well understood what the wider lens of the community revealed. As a long-time resident of La Ronge himself, he demonstrated that he knew the people that make up this community. He remarked that he knew “other members of the family, and they all struggle with alcohol problems, they all struggle with addictions”.

He infused his analysis at every stage of the sentencing process with a deep understanding of the community and the offender’s humanity. [ 44 ] The trial judge was also acutely aware of what it means to live on the streets in downtown La Ronge. He described the very public life men like Mr. Charles live: He’s one of a group, they used to call them the Muskeg (phonetic) gang, who hang around the liquor store, hang around the bargain store, hang around the Motor Inn. They live very, very public lives. And that is part of the circumstance of homelessness in this particular community.

I think it’s -- it’s different in every community, but the particular circumstance of this community brings people in that little community, that homeless community, into contact with one another, in that area, around the Motor Inn . We don’t have a large downtown in La Ronge, and that is the area where people congregate. I think mostly because that’s where there -- Motor Inn, of course, has two drinking establishments in it, and the liquor store is a, maybe 75 yards away.

So it’s a natural gathering point, particularly for homeless people, and particularly for those who wish to panhandle to get money to buy wine at … the liquor store. (Emphasis added) [ 45 ] It is clear from the Sentencing Decision that the judge had extensively reviewed, and benefited, from the PSR. He drew from it and contextualized Mr. Charles’s moral culpability with the information in it. The judge described Mr.

Charles as “an Indigenous man who is permanently scarred by the legacy of his upbringing”: His parents were violent, they drank heavily, and when he was removed from that situation into care, and then into the Residential School, he suffered what I’m told is serious abuse. The seriousness of that abuse is underscored by two things. First of all, the fact that he received a $70,000 settlement from the Residential School settlement system. That says that what happened to him was very serious in the -- in the institution there.

And other -- otherwise, I look at -- at the effect it’s had upon his brothers and sisters. I’m told that it was [one brother] who killed [another brother], two of his brothers. And as well, I know other members of the family, and they all struggle with alcohol problems, they all struggle with addictions. … He has been raised in violence, he has been raised in abuse, he has been steeped in alcohol from a young age, starting his own drinking career at the age of 13, and now he finds himself on the streets, living house to house, as we call it here, for years. [ 46 ] Mr.

Charles’s long-time abuse as a child and as a young adult, coupled with his continuing abuse of alcohol in his present life, permitted the trial judge to arrive at two conclusions regarding Mr. Charles’s moral culpability. First, he saw Mr. Charles’s traumatic childhood and his alcohol use significantly lowered his inhibitions in the commission of those offences. Importantly, he found that Mr. Charles would not be committing crimes but for the trauma of his childhood. Second, he found that Mr.

Charles would not be in the position of living a public life on the streets if he were able to control his drinking, which in turn was directly related to the intergenerational effects of the residential school system. For the judge, Mr. Charles’s childhood, his alcohol abuse and his living on the streets were all interconnected. They led to the offences and thereby should be factored into any assessment of Mr. Charles’s degree of responsibility and “significantly lessen the degree of responsibility of the offender”. [ 47 ] The judge viewed Mr. Charles’s criminal record differently than did trial Crown counsel.

He found that Mr. Charles’s record showed his criminal behaviour was more under control. He noted that in his twenties Mr. Charles’s record was very serious, but that he had shown considerable progress since 2010 and his last offence of violence. The judge commented “during the eight years now since he

was sentenced [for that offence], all that he has on his record is a theft under $5000 charge, for which he received a $200 fine”. The judge also noted that Mr. Charles did not deny what he had done. He gave a warned statement to the police admitting the essential elements of the offence. He pled not guilty in order for the Court to determine whether his actions satisfied the legal tests for what constitutes self- defence. The trial judge clearly did not see Mr. Charles as unredeemable. He saw Mr.

Charles as someone who was on “a healing journey”. [ 48 ] In summing up the reasons for his sentence, the trial judge made it clear he was sentencing with the community in mind – a community in which he himself lived: What sentence for this offence, in this particular community, for this particular offender will do justice; will work, will meet the objectives of sentencing. In my view, it is absolutely essential for public safety that you continue a healing journey, and that you basically build on what you’ve been doing for the last eight years by staying out of -- largely staying out of trouble.

I want you to do that. The alternative for me was to send you into custody, and in my view, if anything, that would cause further harm to -- to that process. So that is why I have decided to do what I have done. This is a small community. People here know that you have -- you have done some time; they will see that. They will also see that you have been placed on these conditions, and that that is a meaningful thing to people in a small community like -- like this one . … Mr. Charles, I’ve taken, I think a bit of a calculated risk here. The -- the streets in this community can be hard, and they can be cold.

But I’m told that you’ve largely been co-operative with the police. The police can be a great asset to you, and I’m hoping that -- I’m hoping that you -- that you’re not homeless anymore. I’m hoping that you can find a place to live, and you can find something productive to do with your time. But if not, I’m going to be here for a good long time, and I don’t mind seeing you on the street. I want to see you sober, if at all possible. But we live in this community together, sir , and -- THE ACCUSED: I know. THE COURT: We all need -- THE ACCUSED: (INDISCERNIBLE). THE COURT: Yeah, we all need to get along, sir.

Okay. (Emphasis added) [ 49 ] Having regard for the trial judge’s reasons, the Crown’s grounds of appeal have no merit. Far from committing the errors that the Crown has outlined, the trial judge faithfully adhered to the principles outlined in the jurisprudence. I will comment briefly and specifically on each of the Crown’s grounds of appeal. 1.

The emphasis on rehabilitation [ 50 ] It is true to say, as Crown counsel submitted, that there will be crimes that require protection of the public be brought to the “forefront of the relevant sentencing principles …” ( Ratt at para 55 ), and for which it may be appropriate to place less emphasis on rehabilitation. However, these words alone do not capture the whole of Ratt or the whole of this Court’s treatment of Gladue and Ipeelee . As that jurisprudence makes plain, systemic and background factors are considered at every stage of the process, including when weighing deterrence and denunciation.

In this case, the trial judge did not emphasize rehabilitation over the need to protect the public. He considered both concepts and developed what he believed to be a fit sentence that would achieve all the objectives of sentencing. He found Mr. Charles not to be “a danger to the public” and that public safety would be better served by not imposing a further custodial sentence. Just as rehabilitative principles cannot overwhelm the need for deterrence and denunciation nor can those factors be given greater prominence than they deserve. 2. The proportionality analysis a.

The gravity of the offence [ 51 ] The trial judge did not commit any errors in principle in assessing the two aspects of the equation that is proportionality under s. 718.1: “the gravity of the offence and the degree of responsibility of the offender”. He was acutely aware that Mr. Charles had brought a fearsome knife to a place where he did not belong. The trial judge, however, sensitively understood very well, without excusing it, the resentment that Mr. Charles felt as someone who lived on the streets but was banned from a significant area of where he lived.

He was required to determine where that sentence fit on a scale of gravity of such offences and he placed it at the lowest level of gravity: “what did happen is that within the range of assaults with a weapon with a knife, this is right at the bottom end of the range”. [ 52 ] The Sentencing Decision puts these words in context: In preparing for sentencing today, I had a look at the Court of Appeal Sentencing Digest, and after going back for the last 20 years, what I noted was a distinct paucity of cases similar to the one at bar.

Most of the decisions that the Court considered have been stabbings, or something thereto. … [K]nife held at the side of the neck of someone in a threating manner, this kind of thing, the odd swing and a miss. But what we have here is a constructive assault with a weapon . The accused pulled out the knife while standing between four and five feet away from the complainant. T here’s no evidence that he swung it, there’s no evidence that he tried to stab, and there certainly is no evidence that he made contact.

This means that given that it is an assault with a weapon with a knife, it is at the lowest level for that particular offence . … [W]hat did happen is that within the range of assaults with a weapon with a knife, this is right at the bottom end of the range . The aggravating factor there, I take this into account, is that [the guard] was in the course of his employment, and this did take place in a public -- in a public setting. But even taking those into account, this is of a much lesser gravity than the cases that I reviewed in the Court of Appeal Sentencing Digest .

… I do have evidence that Mr. Charles followed the accused (sic) to the doors, as we discussed earlier, to the doors of the Motor Inn, but noevidence that he kept the knife out during that period of time, or otherwise did anything with it. (Emphasis added) [53] In criticizing the judge with respect to his understanding of the offence, the Crown asserted that the judge did not take sufficientaccount of the aggravating aspects of the offence: the public nature of the offence, the fact of the knife, its size, the role of the victim as asecurity guard, and that Mr. Charles chased the guard back into the Motor Inn.

However, this is a difficult argument to accept when thejudge mentioned all of these factors and considered them thoroughly. [54] The judge had a comprehensive understanding of the offence in the context in which it happened. As found by the trial judge,Mr. Charles threatened the guard with a fearsome knife and then did nothing with it thereafter. He did not wave it, brandish it, use it tophysically injure the guard and there was no evidence that he had it out when he chased the guard back to the Motor Inn. These arefindings that the Crown does not challenge.

This does not mean that threatening someone in this manner and with such a weapon is notserious. It is. The judge recognized it as such. He made specific reference to the fear that the guard would have felt when he ran back tothe Motor Inn, but this factor does not change the other aspects of the encounter that permitted the judge to place this offence where hedid. In such circumstances, there is simply no basis to find the judge erred by placing this offence at the lowest end of the spectrum forassaults of its type. b. Mr. Charles’s degree of responsibility i.

Provocation [55] The trial judge’s understanding of the community also permitted him to see how the offence occurred in a particular light and tofind provocation had an effect on Mr. Charles’s moral culpability. In the Conviction Decision, the judge held that the guard was “beingquite aggressive” and “very provocative”. While these actions on their own could not and did not result in an acquittal, the judge was veryclear that the guard instigated a response from Mr. Charles.

In the Sentencing Decision, the judge considered that “why [the offences]happened” was “highly germane to sentencing” and in assessing the “moral culpability of the offender”. He made these commentsexplaining what had transpired: the guard’s words and actions “precipitated the knife coming out”. He acknowledged that a person cannotconsent to having a large knife pulled on them but it was “pretty clear” that to “some significant degree” the guard “called on” Mr. Charlesto respond. [56] It was entirely appropriate for the judge to consider the provocative nature of the guard’s actions in assessing Mr.

Charles’smoral blameworthiness. In Stone, Bastarache J., speaking for the majority, held that “[i]n reaching a sentence which accurately reflects aparticular offender’s moral culpability, the sentencing judge must consider all of the circumstances of the offence, including whether itinvolved provocation” (at para 234). To do otherwise, he continued “would be to ignore probative evidence of an offender’s mental state…”.

Similarly, Neepin held that it was an error in principle for the trial judge not to have considered the provocative circumstances in thatcase. [57] The Crown did not contest these propositions of law, but made instead two assertions: there was no provocation and, if therewere, the presence of provocation would not result in a finding of insignificant moral culpability. Responding to the first of these claims, itmust be said that the judge made clear findings of fact that the guard provoked Mr. Charles and that this provocation reduced his moralculpability.

As the Alberta Court of Appeal affirmed in R v Rasberry, 2018 ABCA 128, leave to appeal to SCC refused,, provocation “remains an issue of fact and weight of evidence, and is within the province of the sentencing judge” (at para 10). [58] With respect to the second claim, by implication the Crown is saying that the judge gave too much weight to provocation. Butthis is simply not so. The judge did not err by considering provocation as a mitigating factor in sentencing and he did not err in the weighthe gave to it. The judge considered provocation as one factor only in assessing Mr. Charles’s moral culpability.

The more significantelement of the proportionality analysis was the combination of Mr. Charles’s Gladue factors that led to the trial judge’s finding thatMr. Charles’s moral culpability was diminished. ii. Gladue assessment [59] I have already commented on this issue to some extent in my overall assessment of the judge’s reasons. As indicated, the trialjudge followed the law in Gladue and Ipeelee and made no errors in how he reviewed Mr. Charles’s Gladue factors or the prominence thathe gave to them in his assessment of proportionality. 3.

Parity [60] With respect to the principle of parity enshrined in s. 718.2(b), Crown counsel on appeal reiterated the position of trial Crownthat the trial judge should have given greater weight to Drysdale and his failure to do so is an error in principle justifying appellateintervention. But, as Caldwell J.A. observed in Whitehead, to the extent that s. 718.2(

e) will lead to different sanctions for Indigenousoffenders, those sanctions will be justified based on their unique circumstances (at para 79).

Section 718.2(

e) of the Criminal Code“requires sentencing courts to rethink critically the role that parity plays when sentencing Aboriginal offenders” (Whitehead at para 41). Itdoes not mean that parity plays no role, but it does preclude the rote comparison among offenders and offences. 4. Application of s. 718.2(e) [61] That brings me to the Crown’s fourth ground of appeal, which was that the trial judge erred in his application of s. 718.2(e).Again, Crown counsel correctly stated that “a sentencing court cannot consider factors relevant under s. 718.2(

e) in isolation from other

sentencing considerations” (quoting from Whitehead at para 32 ). While this is true, it is not an invitation to subject a sentence that has been developed in accordance with s. 718.2(

e) to any greater level of scrutiny than any other sentence. [ 62 ] In the face of a sentence that has been obviously and conspicuously developed with s. 718.2(

e) in mind, appellate courts must be particularly sceptical of any argument that does not sensitively consider the sentencing judge’s reasons. An appellate court must be especially critical of any argument that could be perceived as asking for a reassessment of the offender’s degree of responsibility as a means of undermining the sentencing judge’s analysis of an offender’s Gladue factors. [ 63 ] The sentencing judge’s assessment of the offender’s degree of moral responsibility is an integral aspect of many of the key components of the sentencing process.

It is directly implicated in the proportionality assessment. An offender’s degree of responsibility has implications for how the principles of deterrence and denunciation are applied in any given case. It also informs the parity principle because that principle is grounded in a comparison of sentences imposed on offenders with the same degree of responsibility for similar offences committed in similar circumstances. It affects the type of sentence that is imposed.

As Wagner J. (as he then was) wrote in R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, “everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case” (at para 58). [ 64 ] The decisions of the Supreme Court in Gladue and Ipeelee are primarily focussed on how trial courts should approach the sentencing of Indigenous offenders, but they also have profound implications as to how appeal courts should review such sentences. In order for s. 718.2(

e) to have any impact on the over-incarceration of Indigenous offenders, appellate courts have an important role to play. If the effective application of s. 718.2(

e) is confined only to those cases where leniency is typically shown – e.g., first offenders, youthful offenders, those for whom rehabilitation is assured – no progress will be made. Clearly, the standard of review does not change depending on the race or culture of an offender. However, as the Supreme Court has made abundantly clear, appellate intervention is only justified if the sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact on the sentence. An error in principle cannot be simply that the judge did not impose a sentence that is long enough. Sentencing with s. 718.2(

e) in mind is about much more than that. [ 65 ] The proper application of Gladue and Ipeelee requires sentencing courts to adapt to a new paradigm and that has implications for appellate review. If every time an appellate court is presented with a seemingly lenient sentence or a sentence outside of the range, the court overturns the sentence and adds custodial time, s. 718.2(

e) will have little impact on reducing the over-incarceration of Indigenous offenders. Overturning such sentences without good reason undercuts the principle of deference and undermines the authority of sentencing judges who are trying to find appropriate solutions that properly emphasize restoration rather than punishment. A standard of review is not an invitation to find error; rather, it is an expression of the level of deference that is owed.

Deference is an attitude and is no more important in any area of the law than sentencing: it is acutely important in reviewing a sentence that is imposed on an Indigenous offender where the sentencing judge has arrived at a seemingly lenient sentence after a thorough consideration of Gladue factors showing a diminished degree of responsibility.

In order to give proper effect to s. 718.2(e), and its emphasis on restraint, an appeal court should neither strive to sustain nor strive to overturn what appears to be a lenient sentence, but rather must give careful consideration as to how the judge arrived at the sentence, having in mind the focus of the provision of reducing overreliance on incarceration. [ 66 ] In my respectful view, careful consideration of how the judge arrived at the sentence in this case reveals that the Crown has not identified an error in principle that had an impact on the sentence.

Rather the Crown is asking the Court to parse the Sentencing Decision , looking for error that might have had an impact on the sentence. At several points in the grounds of appeal, the Crown is asking the Court to make new findings of fact and to reweigh aspects of the evidence that were favourable to the offender. Proper appellate review does not permit this type of analysis for any sentence. The sentence is not demonstrably unfit, having regard for the trial judge’s assessment of the offences, the circumstances in which they were committed, and the offender’s degree of blameworthiness. VI.

Conclusion [ 67 ] As indicated, the Crown was granted leave to appeal from sentence and the appeal was dismissed from the bench on the day the appeal was heard. “Jackson J.A.” Jackson J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.