R v Aalbers, 2022 SKCA 105

Court of Appeal for Saskatchewan Docket: CACR3508 Citation: R v Aalbers , 2022 SKCA 105 Date: 2022-09-27 Between: Johnny William Aalbers Appellant And His Majesty the King Respondent Before: Richards C.J.S., Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On appeal from: CRM 6 of 2020 (QB), Estevan Appeal heard: May 12, 2022 Counsel: W. Timothy Stodalka for the Appellant Kelly L. Kaip for the Respondent Schwann J.A. I.

INTRODUCTION [ 1 ] The appellant, Johnny Aalbers, pleaded guilty to breaking and entering a residence with the intent to commit an indictable offence contrary to s. 348(1) (

a) of the Criminal Code and to assaulting Brittany Aalbers, contrary to s. 266. Mr. Aalbers was sentenced to 15 months of imprisonment, followed by a 24-month period of probation on the breaking and entering charge along with a 10-month concurrent sentence on the assault charge. After credit for pre-sentence custody was applied, Mr. Aalbers had 450 days left to serve: R v Aalbers (25 October 2021) Estevan, CRM 6 of 2020 (Sask QB) [ Sentencing Decision ]. [ 2 ] Mr. Aalbers appeals from the sentence imposed.

He argues the sentencing judge committed numerous errors in principle and that his sentence is demonstrably unfit. Leave to appeal was granted by Leurer J.A. at the time of Mr. Aalbers’s application for release pending appeal. [ 3 ] For the reasons that follow, I conclude Mr. Aalbers’s appeal must be dismissed. II. BACKGROUND [ 4 ] Multiple generations of the Aalbers family have farmed together for decades in southern Saskatchewan. The family is presently immersed in turmoil, and there is protracted civil litigation relating to the ownership of the Aalbers’ family farm operation. The family is divided.

On one side is Mr. Aalbers and his adult son, Adam Aalbers. Together, they operate Aalbers Agro. Armand Aalbers, Mr. Aalbers’s other adult son, and Armand’s wife, Brittany Aalbers, are on the other side of the family divide. Other family members have aligned themselves along those lines of division. [ 5 ] Around 2:00 p.m. on March 26, 2019, Mr. Aalbers and Adam went to NW 15-07-01 W2 to retrieve a New Holland tractor, SeedMaster air drill and New Holland air cart [collectively, equipment] for use in their spring seeding operation. The equipment is purportedly owned by Aalbers Agro. Mr.

Aalbers, as well as Armand and Brittany, reside on NW 15-07-01 W2, albeit in separate residences. [ 6 ] While Mr. Aalbers and Adam were in the process of moving the equipment, Armand removed a draw bar pin from the tractor and quickly retreated with it to a garage that is attached to his house. The removal of the pin prevented Mr. Aalbers and Adam from taking the air drill and air cart from the property. [ 7 ] What followed was caught on two surveillance videos and subsequently described in an agreed statement of facts and admissions [agreed facts], which was entered as an exhibit at the sentencing hearing.

Paragraph 11 from the agreed facts reads as follows: 11. The videos show the following details: • Johnny and Adam chase Armand to his garage to get the draw bar pin back. • Johnny and Adam make a joint, coordinated effort to break through the external foot door to enter into the garage. Their initial efforts are not successful. Adam uses a steel grate to bash out the windows into the garage. • Adam again attempts to break through the foot door. The door opens briefly and Adam attempts to enter the garage but is pushed out and the door closes again. Adam then successfully kicks the door open.

• Johnny enters the garage followed by Adam. • Armand has a large crowbar in his hands. Initially, he uses the crowbar to strike Johnny. Brittany has a cell phone and is calling the police. Adam and Armand start to wrestle. • Johnny wrestles with Brittany and is able to get the crowbar out of her hands. He grabs onto Brittany around her upper body and neck. While holding the crowbar, he forces Brittany into a corner of the garage and attempts to take Brittany’s phone. He does not use the crowbar to strike Brittany. • Adam and Armand grapple in another area of the garage. Adam punches Armand in the face.

Johnny leaves Brittany and moves towards Armand and also grapples with Armand. • Armand ends up on the ground with Johnny over top of and holding on to Armand’s lower body and legs. Adam then repeatedly punches Armand in the face and head. • Brittany uses the crowbar to strike Johnny in the ribs. Johnny gets up off of Armand and ends his involvement in the physical conflict with Armand. • Armand attempts to get up and move away from Adam. Adam takes a steel grate and strikes Armand over the head with the grate.

Before Adam hits Armand with the steel grate, Johnny says “No”. • The physical confrontation ends at this point and police are called by Brittany Aalbers. [ 8 ] Both Armand and Brittany were injured in the fracas described in the agreed facts. Armand sustained a concussion and required 14 stitches to his head. He also received abrasions to his hands and knees and has back pain. Brittany has ongoing back pain and suffers from emotional distress as a result of this incident. [ 9 ] Mr. Aalbers and Adam were charged with numerous offences arising from this altercation. Mr.

Aalbers eventually pleaded guilty to the two offences mentioned above. The remaining charges were stayed by the Crown. III. THE SENTENCING DECISION [ 10 ] Sentencing took place before a Court of King’s Bench judge more than two years after the date the offences occurred and, as noted, proceeded on the basis of the agreed facts that corresponded with the incidents that were captured in the surveillance videos. The Crown sought an 18-month custodial sentence, followed by a lengthy period of probation on the s. 348(1) (

a) breaking and entering charge and a concurrent 12-month sentence for the s. 266 assault charge. Mr. Aalbers had urged the court to impose a suspended sentence on both charges. [ 11 ] The sentencing judge began his analysis by instructing himself on the applicable sentencing principles. He commented on several matters that were favourable to Mr. Aalbers, such as the absence of a criminal record, the fact he had complied with the terms of his release order while on bail, that he has the support of pro-social friends and family and that he is at a low risk to reoffend.

The only risk factor identified in the pre-sentence report was his attitude , since Mr. Aalbers was found to minimize his actions in connection with these offences. [ 12 ] Turning first to the s. 348 offence, citing R v MacLeod , 2018 SKCA 1 , [2018] 5 WWR 743 [ MacLeod ], the sentencing judge noted that the sentencing range for home invasion offences is between seven to ten years of imprisonment, but recognized there are “outlier sentences” in cases where significant mitigating circumstances were present (at para 19). He remarked on the fact Mr.

Aalbers was unable to refer him to any Saskatchewan decision where a suspended sentence was imposed for a s. 348(1) (

a) conviction. [ 13 ] The sentencing judge described both offences as serious. In providing for a maximum life sentence for the offence of breaking and entering a dwelling-house, he said Parliament could be seen as expressing its concern for the sanctity of the home.

He commented on how this Court has treated home-invasion type offences as serious and that a custodial sentence is typically imposed to support the goals of denunciation and deterrence. [ 14 ] The sentencing judge identified the following aggravating and mitigating factors: Aggravating Factors [28] There are aggravating factors: • that this was a home invasion; • the violence during the offence and damage to property in breaking the windows and kicking in the door to gain entry; • that the victims are family members of the offender; • the impact on the victims.

Mitigating Factors [29] There are also mitigating factors: • Mr. Aalbers’ request for police assistance before attempting to move the farm equipment;

• the impulsive nature of the offences, which were not planned or deliberate; • Mr. Aalbers’ statement “No” before Adam Aalbers struck Armand Aalbers with the steel grate; • the fact that Mr. Aalbers did not punch or kick anyone, although he did grapple with and hold both victims; • Mr. Aalbers’ guilty plea, albeit some time after being charged; • the absence of any prior criminal record. [15] The sentencing judge determined denunciation and deterrence were the paramount objectives in considering a fit sentence forMr. Aalbers and that a custodial sentence was warranted. He characterized Mr.

Aalbers’s actions as terrorizing for Armand and Brittany.From this he concluded, “The sanctity of their home was violated. I cannot therefore accept the suggested suspended sentence proposedby the accused” (at para 31). [16] By the same token, the sentencing judge was alert to the need to fashion an individualized sentence that took into accountMr.

Aalbers’s age (56 years at the time of sentencing), his low risk to reoffend, the absence of a criminal record, his guilty pleas and hisexpression of remorse. [17] All things considered, the sentencing judge imposed a custodial sentence of 15 months, followed by a 24-month period ofprobation on the breaking and entering charge, and a concurrent 10-month custodial sentence on the assault charge. IV. STANDARD OF REVIEW [18] The standard of review to be applied on appeals from sentence is well known.

An appellate court may only intervene to vary asentence if it is demonstrably unfit, or the sentencing judge made an error in principle that had an impact on the sentence imposed. Errorsin principle that can justify appellate intervention include errors of law, a failure to consider a relevant factor, or the erroneousconsideration of an aggravating or mitigating factor: R v Friesen, 2020 SCC 9 at paras 25–26, 444 DLR (4th) 1 [Friesen], and R vLacasse, 2015 SCC 64 at paras 41–48, [2015] 3 SCR 1089 [Lacasse].

The weighing and balancing of relevant factors is an error inprinciple only if, by over-emphasizing one factor or by not giving weight to another, the sentencing judge is found to have exercised theirdiscretion unreasonably: Friesen at para 26.

See also, R v W.M., 2021 SKCA 103 at para 21; R v R.D.F., 2019 SKCA 112 at para 21, 382CCC (3d) 1, leave to appeal to SCC refused, ; and R v Nasogaluak, 2010 SCC 6 at para 46, [2010] 1 SCR 206. [19] The Supreme Court in R v Parranto, 2021 SCC 46, 463 DLR (4th) 389, returned to and re-emphasized the point that asentencing range is simply a non-binding tool and that, on appeal, sentencing decisions are entitled to a high degree of deference: [29] It is trite law that appellate courts cannot interfere with sentencing decisions lightly (see R. v.

Suter, 2018 SCC 34, [2018] 2 S.C.R.496, at para. 23, citing Shropshire, [ (SCC), [1995] 4 SCR 227] at para. 48; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R.132, at para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; Nasogaluak, at para. 46; Lacasse, at para. 39; and Friesen, atpara. 25). Sentencing judges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal(Lacasse, at para. 11).

It remains the case that, where a judge deviates from a sentencing range or starting point, no matter the degree ofdeviation, this does not in itself justify appellate intervention. V. PRINCIPLES OF SENTENCING [20] Sentencing is a highly individualized process as no two offenders, no two offences and no two sets of circumstances are thesame. In crafting a fit sentence, a sentencing judge is guided by s. 718 to s. 718.2 of the Criminal Code.

Section 718 describes thefundamental purpose of sentencing as the protection of society and the need to contribute to respect for the law and the maintenance of ajust, peaceful and safe society.

As per s. 718.1, a sentence must, above all else, be “proportionate to the gravity of the offence and thedegree of responsibility of the offender”. [21] Proportionality, long recognized as a key concept in Canadian sentencing jurisprudence, is the cardinal principle in sentencing:“The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.In other words, the severity of a sentence depends not only on the seriousness of the consequences of the crime, but also on the moralblameworthiness of the offender” (Lacasse at para 12).

A sentence will be demonstrably unfit if it constitutes an unreasonable departurefrom that principle. [22]

Section 718.2 provides additional guidance to a sentencing judge by way of secondary principles that must be considered.Pertinent to Mr. Aalbers’s appeal is s. 718.2(a). This

section provides that “a sentence should be increased or reduced to account for anyrelevant aggravating or mitigating circumstances relating to the offence or the offender …”. Sentencing judges must also take the parityprinciple into account (s. 718.2(b)), which is to say that similar offenders who commit similar offences in similar circumstances shouldreceive similar sentences. Parity is considered an expression of proportionality. VI. ANALYSIS [23] Mr.

Aalbers submits the sentencing judge’s proportionality analysis is seriously flawed in several respects, which, eitherindividually or collectively, amounts to an error in principle. He also argues that the sentence imposed for both offences is demonstrablyunfit. I will deal with each argument in turn.

A. Errors in principle 1. Failure to consider provocation [24] Mr. Aalbers asserts the sentencing judge erred by failing to give adequate or any weight to Armand’s provocative actions,namely the wrongful removal of the pin, his refusal to return it when requested to do so by Mr. Aalbers and his striking the first blowwhen he hit Mr. Aalbers with the crowbar.

He says Armand had no right to remove the pin from the tractor since it belonged to AalbersAgro and, in written argument, contends that “an ordinary person would be provoked if the victim stole a piece of equipment which meantthat the ordinary person’s farm equipment could not be moved”. Mr. Aalbers argues that, by taking the pin, Armand deliberately set inmotion an immediate reaction on his part. He describes Armand’s actions as a provocation, which, he says, the sentencing judge shouldhave recognized as a significant mitigating factor. [25] While Mr.

Aalbers’s assertion that provocation has a role to play in mitigating moral culpability and blameworthiness, in hisfactum he analogizes its application and constituent parts to the jurisprudence in R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223 [Wolff](which spoke to the defence of provocation in the context of a murder charge), in suggesting “Armand’s actions and [Mr.

Aalbers’]response falls squarely within the legal definition of what constitutes provocation”. [26] The Crown takes no issue with the general proposition that a victim’s actions preceding a crime are relevant to sentence butsuggests the weight to be attached to them is for the sentencing judge to assess. In the matter at hand, the Crown says Armand’s actionspreceding the offence provide an explanation but not an excuse for Mr. Aalbers’s actions. [27] Provocation is a legal defence to murder under s. 232 of the Criminal Code. If established, it can reduce a murder charge tomanslaughter.

An amendment to the Criminal Code in 2015 changed the provocation requirement from a “wrongful act or an insult” to“conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment…” (s. 232(2)). In other words, prior to the amendment, the conduct only needed to be a wrongful act or insult. [28] There has been some overlap between the elements of this defence and the application of provocation as a mitigating factor atthe sentencing stage.

R v Stone, (SCC), [1999] 2 SCR 290 (a pre-amendment decision), is the main authority on the useof the provocation defence to murder as a mitigating factor at sentencing. In Stone, the Supreme Court explicitly held that provocation canbe considered as a factor in assessing the moral culpability of an offender in sentencing that person for manslaughter (see paragraphs 232–237).

The Court noted that “[i]n reaching a sentence which accurately reflects a particular offender’s moral culpability, the sentencingjudge must consider all of the circumstances of the offence, including whether it involved provocation” (at para 234). This passage couldbe interpreted as providing general support for the proposition that provocation can be considered in the context of any offence whenpassing sentence. However, I would suggest that paragraph 237 of Stone, which states that “to give s. 232 full effect, provocation must beconsidered in sentencing in cases where this

section of the Code has been invoked”, could be seen as limiting the provocationconsideration in sentencing manslaughter cases or, at the very least, that it is not indicative of an intention to import provocation moregenerally to sentencing for all manner of offences. [29] Although there is some ambiguity in Stone as to whether the use of provocation in sentencing is restricted to murder cases, as Isee it, the sentencing judge did not err by failing to explicitly consider provocation in a legal sense as Mr. Aalbers had suggested by hisreference to the Wolff decision.

I say this because this is not a murder case and, as such, it does not engage the provocation defence.Second, the material cited that Mr. Aalbers attempts to use to his benefit is in reference to the outdated, pre-2015 amendment concept ofprovocation. As the provision now reads, the conduct leading to the provocation must be an indictable offence carrying a penalty of five ormore years of imprisonment as per s. 232(2). The conduct which Mr. Aalbers claims was provocative was theft, which pursuant tos. 334(b)(

i) and s. 334(b)(ii), is punishable by a maximum penalty of two years for theft under $5,000. [30] Moving beyond the s. 232 offence, provocation can be seen as part of the circumstances of an offence. However, when appliedin this context, provocation does not carry the same legal definition and test as it does when used as a defence; rather, it appears to be usedin a much more conventional and commonly understood sense of the term. [31] Turning to the appellate Saskatchewan jurisprudence, in R v Parchomchuk, 2017 SKCA 101, [2018] 3 WWR 7, this Court didnot rule out the use of provocation as a mitigating factor.

However, the Court declined to accept the argument in that case because of theabsence of a finding of fact about the state of mind of the offender. [32] R v Charles, 2021 SKCA 75, [2021] 7 WWR 734 [Charles], is another decision that merits consideration. There, the offenderwas convicted of assault while threatening to use a weapon and for carrying a weapon for a dangerous purpose. The offender had analtercation with a guard at a motel, with whom he had a history of run-ins.

Justice Jackson, writing for the Court, had this to say about theuse that can be made of provocation in sentencing: [55] The trial judge’s understanding of the community also permitted him to see how the offence occurred in a particular light and to findprovocation had an effect on Mr. Charles’s moral culpability. In the Conviction Decision, the judge held that the guard was “being quiteaggressive” and “very provocative”. While these actions on their own could not and did not result in an acquittal, the judge was very clearthat 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’s moralblameworthiness. 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 [2020 MBCA 55] held that it was an error in principle for the trial judge not to have considered the provocative

circumstances in that case. [57] The Crown did not contest these propositions of law, but made instead two assertions: there was no provocation and, if there were, thepresence of provocation would not result in a finding of insignificant moral culpability. Responding to the first of these claims, it must besaid that the judge made clear findings of fact that the guard provoked Mr.

Charles and that this provocation reduced his moral culpability.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. But this issimply not so. The judge did not err by considering provocation as a mitigating factor in sentencing and he did not err in the weight hegave to it.

The judge considered provocation as one factor only in assessing Mr. Charles’s moral culpability. The more significant elementof the proportionality analysis was the combination of Mr. Charles’s Gladue factors that led to the trial judge’s finding that Mr. Charles’smoral culpability was diminished. (Emphasis added) See also R v Chung, 2020 ABCA 114. [33] To conclude, the legal defence of provocation only applies to murder.

There is support for the idea that provocation – in thegeneral sense of the term – can be considered as a mitigating factor in sentencing in non-murder cases, so long as the concept is notconflated with the legal defence. The alleged provocative conduct is more aptly characterized as motivation or as a consideration as towhether the offence was impulsive or planned. [34] The sentencing judge was aware of the facts that Mr. Aalbers says amounted to provocation, but he implicitly rejected the ideathat they rose to a level sufficient to reduce Mr. Aalbers’s moral blameworthiness.

He said as follows: “I recognize that Mr. Aalbersplayed a different role in the incident than his son, Adam, in particular less violence. He nonetheless bears significant moral culpability.Johnny Aalbers was the first to kick the garage door after Armand had retreated into the garage and Johnny Aalbers was the first to enterthe garage after Adam kicked the door open” (emphasis added, at para 30). [35] The sentencing judge also, and quite properly, identified as a mitigating factor “the impulsive nature of the offences, whichwere not planned or deliberate” (at para 29).

While the sentencing judge could have elaborated on the weight he attached to this factor, itcan hardly be argued that, in stating that the impulsive nature of Mr. Aalbers’s offending was a mitigating factor, the sentencing judge wasunresponsive to Mr. Aalbers’s argument on provocation. [36] Further, Mr. Aalbers has another hurdle to overcome. The written sentencing submissions put forth on his behalf explained thecircumstances that were already set out in the agreed facts. No new facts were alleged, and no request was made for the sentencing judgeto make a specific finding of provocation or about Mr.

Aalbers’s state of mind at the time of the offences. His written submissions to theCourt of King’s Bench, under the headings “NOT PLANNED” and “PROVOCATION”, were essentially identical. This supports thenotion that he merged the two concepts as one. Even less was said about provocation in oral submissions before the sentencing judge. Hislegal counsel simply raised the same facts, characterizing them as provocation. [37] To conclude, Mr. Aalbers is correct to say that the sentencing judge did not address this argument head-on in his writtenreasons.

However, reading the Sentencing Decision as a whole, together with the submissions of the parties, I am satisfied that thesentencing judge did not ignore Mr. Aalbers’s argument. While the sentencing judge did not consider provocation in a discrete way, heclearly took note of the “impulsive nature of the offences” along with the fact it was not planned or deliberate (at para 29). I see no error inhis failure to use the word provocation. [38] There is no error in principle here. 2. Improper application of Adam’s circumstance [39] Mr.

Aalbers submits the sentencing judge sentenced him as if he had been found guilty of the more serious offences to whichAdam had pleaded guilty or by ignoring the fact that he had pleaded guilty to a lesser included offence, or both. [40] Pursuant to the indictment filed by the Crown following the preliminary inquiry, Mr.

Aalbers and Adam were jointly chargedwith the following offences: 1) THAT THEY, the said Johnny William Aalbers and Adam Daniel Aalbers on or about the 26th day of March, A.D. 2019 at or nearManor, Saskatchewan, did break and enter a place to wit: Armand and Brittany Aalbers residence and did therein commit the indictableoffense of assault with a weapon contrary to section 348(1)(

a) of the Criminal Code. 2) THAT THEY, the said Johnny William Aalbers and Adam Daniel Aalbers on or about the 26th day of March, A.D. 2019 at or nearManor, Saskatchewan, did wound Armand Aalbers thereby committing an aggravated assault contrary to

section 268 of the CriminalCode. 3) THAT THEY, the said Johnny William Aalbers and Adam Daniel Aalbers on or about the 26th day of March, A.D. 2019 at or nearManor, Saskatchewan, in committing an assault on Armand Aalbers, did use a weapon to wit a crow bar contrary to

section 267(

a) of theCriminal Code. 4) THAT THEY, the said Johnny William Aalbers and Adam Daniel Aalbers on or about the 26th day of March, A.D. 2019 at or nearManor, Saskatchewan, did commit mischief by willfully damaging without legal excuse or colour of right property to wit garage windowsof Armand Aalbers of a value not exceeding $5000 dollars contrary to section 430(4) of the Criminal Code. 5) THAT THEY, the said Johnny William Aalbers and Adam Daniel Aalbers on or about the 26th day of March, A.D. 2019 at or nearManor, Saskatchewan, did commit an assault on Brittany Aalbers with a weapon to wit a crowbar contrary to

section 267(

a) of the

Criminal Code . [ 41 ] Prior to trial, Mr. Aalbers entered into a plea arrangement with the Crown, wherein he pleaded guilty to the lesser included offences of breaking and entering Armand and Brittany’s residence with the intent to commit an indictable offence contrary to s. 348(1) (

a) and assault simpliciter on Brittany, contrary to s. 266. The remaining charges were stayed. [ 42 ] Adam pleaded guilty to breaking and entering Armand and Brittany’s residence and therein committing assault with a weapon, contrary to s. 348(1) (

b) of the Criminal Code . The Crown directed a stay of proceedings in connection with the four other counts. Pursuant to a joint submission, Adam was sentenced to two years in a federal penitentiary followed by a 30-month period of probation. [ 43 ] Mr. Aalbers is correct to say that offenders are to be punished only for the crimes for which they have been found guilty. The Supreme Court made this point in R v Larche , 2006 SCC 56 , [2006] 2 SCR 762 [ Larche ], but emphasized that the principle is subject to one exception: “s. 725(1)(

c) permits a court, in determining the sentence, to consider any fact that forms part of the circumstances of the offence even if it could form the basis for a separate charge” (at para 28). If that provision applies, those other facts may be treated as aggravating circumstances for purposes of s. 718.2 (a). Clayton Ruby, in Sentencing , 10th ed (Toronto: LexisNexis, 2020) [ Ruby ], provides a good

summary of the law in this area: §6.54 A judge should not increase the severity of the sentence because he considers the accused had committed some other offence, either for which he had not been charged or upon which he had been acquitted. There is, however, a statutory exception to this rule. Section 725(1) (

c) of the Criminal Code provides as follows: In determining the sentence, a court … (

c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. Section 725(1)(

c) thus permits the sentencing judge to take into account any fact that forms part of the circumstances of the offence, if the fact could form the basis for a separate charge. Offences for which the offender has not been charged but which are proven under section 725(1) (

c) may be treated as “aggravating circumstances” under

section 718.2 (

a) of the Criminal Code . (Footnotes omitted) [ 44 ] Applying the reasoning in MacLeod , it can be inferred that the purpose of Mr. Aalbers’s plea arrangement was to eliminate the jeopardy he would otherwise face if he were sentenced on the additional, more serious charges. Thus, in light of the law and the plea arrangement that was struck, the question that must be asked in connection with this ground of appeal is whether the sentencing judge took Mr. Aalbers’s original charges or Adam’s conviction into account, or both, in sentencing him.

Not only would that have been an error of law, but it would have had an obvious impact on the gravity of the offences to which he did plead guilty. [ 45 ] Respectfully, I find no support for Mr. Aalbers’s argument on the record. The sentencing judge clearly understood that both offences were serious and that home invasion cases usually result in a custodial sentence to give effect to the paramount objectives of denunciation and deterrence. [ 46 ] The sentencing judge was able to glean the circumstances of the two offences from both the surveillance videos (which formed part of the record) and the agreed facts.

Mr. Aalbers admitted the facts set out therein including the following: (

a) Mr. Aalbers and Adam chased Armand to his garage; (

b) Mr. Aalbers and Adam made a joint, coordinated effort to break through the external front door to enter the garage; (

c) after Adam successfully kicked in the front door, Mr. Aalbers entered the garage first; (

d) Mr. Aalbers wrestled with Brittany and was able to get the crowbar out of her hands, and then grasped on to her around the upper body and neck; (

e) while holding the crowbar, Mr. Aalbers forced Brittany into a corner and attempted to take her phone; (

f) Mr. Aalbers moved toward Armand and grappled with him; and (

g) before Adam hit Armand on the head with the steel grate, Mr. Aalbers said “No”. [ 47 ] A comparison of the reasons in the Sentencing Decision to the agreed facts reveals no indication that the sentencing judge went beyond the four corners of the facts that Mr. Aalbers had agreed to with the Crown or that he found any additional aggravating factors at play. He simply dealt with what was before him. The fact that the sentencing judge viewed Mr. Aalbers’s actions as being more serious than Mr.

Aalbers did does not amount to an error in principle. [ 48 ] Finally, while it is fair to say that the sentencing judge referenced Adam’s sentence, he explicitly cautioned himself not to use it as a point of reference in sentencing Mr. Aalbers: “The Court of Appeal has cautioned against the use of sentences resulting from joint submissions, since they may involve considerations not known to the court” (at para 27). Furthermore, the sentencing judge expressly stated, and presumably understood, that Mr. Aalbers played a different, less violent role than Adam did. Even so, on the facts before him, he found Mr.

Aalbers bore significant moral culpability: “Johnny Aalbers was the first to kick the garage door after Armand had retreated into the garage and Johnny Aalbers was the first to enter the garage after Adam kicked the door open” (at para 30). [ 49 ] The trial judge did not err in the way suggested by Mr. Aalbers. 3. Errors in the Campeau analysis and the aggravating factors

[ 50 ] Mr. Aalbers says this Court’s decision in R v Campeau , 2009 SKCA 3 , 320 Sask R 142 [ Campeau ], stands for the proposition that judges must approach sentencing for home invasion offences by considering (

a) motive, (

b) the degree of violence involved, (

c) the nature of the accompanying listed offences, and (

d) other relevant factors. [ 51 ] In Campeau , the Crown appealed from a 30-month sentence that had been imposed by the trial judge following Mr. Campeau’s conviction under s. 348(1) (a). In response to the Crown’s argument that R v Pelly , 2006 SKCA 60 , 210 CCC (3d) 416 [ Pelly ], had established a starting-point sentence of seven years for all forms of home invasion offences, Klebuc C.J.S. in Campeau said as follows: [32] In sum, Pelly does not impose a mandatory starting point sentence of seven years for all forms of home invasion.

Rather, as noted in Payne [2007 SKCA 28], each case involving a home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (

i) the motive for unlawfully entering the dwelling-house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [ 52 ] While Mr. Aalbers zeros in on the four factors identified in the above passage, he overlooks two important points that spring from that decision. First, Campeau confirmed this Court’s earlier decision in R v Payne , 2007 SKCA 28 , 293 Sask R 31 [ Payne ], that underscored the fundamental point that each home invasion case must be decided on its own facts.

Second, although Campeau identified four specific factors, a careful reading of the relevant passage does not support an

interpretation that those factors are themselves mandatory considerations or even an exhaustive list. Campeau does not stand for the proposition that, when sentencing an offender for a home invasion offence, the sentencing judge must consider only those four matters, that it is an error of law not to address each of the Campeau factors or that the list of factors is exhaustive.

Picking up on this last point, Ruby offers the following helpful commentary in relation to s. 718.2 (a): “This list of aggravating and mitigating circumstances is in no way exhaustive, and no factor will operate in aggravation or mitigation at all times and in all circumstances” (at §5.3). Context is important. [ 53 ] Those general points made, I will briefly comment on the aggravating factors that were identified in the within matter and address how Mr. Aalbers says they were mishandled or misapplied by the sentencing judge. a. Motive [ 54 ] Mr.

Aalbers’s argument on motive is closely related to his argument on provocation. Pursuant to s. 718.2 (a)(i), motive is a statutory aggravating factor when it involves “bias, prejudice or hate based on race …”. The section, however, says nothing about if or how motive can be used as a mitigating factor. That said, Ruby recognizes instances where motivation has been considered a mitigating factor: §5.57 Crimes motivated by personal circumstances of a temporary nature are often viewed as mitigating.

Financial difficulties, marital and family problems, emotional problems, medical problems and youth all have been accepted in mitigation of sentence. Of particular importance are the “twin plagues” of domestic misfortune and sorry economic conditions. The more serious the offence, and the harm done, the less weight can be given to such mitigating factors. Where the offences are very serious, such as the causing of serious bodily harm, a good motive may have little effect. (Footnotes omitted) [ 55 ] Mr.

Aalbers claims Armand’s theft of the pin was the proverbial match that ignited this explosive family incident, that Armand lit the match, not him, and that he only entered the garage with the good faith intention of retrieving the pin. In argument, Mr. Aalbers’s legal counsel discussed how this specific pin was hard to come by, and how and why Mr. Aalbers had to move his equipment on that particular day. However, apart from what is contained in the agreed facts, Mr.

Aalbers himself tendered no evidence to further explain the significance of the pin or his reason for entering Armand’s garage beyond the obvious fact that he wanted to retrieve it. Nevertheless, it is telling that, having entered the garage for the purpose of retrieving the item, when Mr. Aalbers left after the assault, neither he nor Adam took the pin with them. [ 56 ] Mr. Aalbers’s argument must be considered in light of what this Court said in R v Foster , 2015 SKCA 114 , 467 Sask R 216 [ Foster ], in the context of a home invasion offence.

There, the Court made clear that retribution for the victim’s conduct is not a mitigating circumstance: [33] The Crown argues the sentencing judge made a number of specific errors. First, with respect to proportionality the Crown submits the sentencing judge failed to acknowledge the gravity of the offence by shifting some of the blame for the offence to the victim. The Crown points to her discussion of the impact of the offence on Mr. Cowan and that he may bear some responsibility for setting up circumstances which led to unintended consequences (para. 53). To be sure, the conduct of Mr. Cowan which gave Mr.

Foster and the others a purpose to confront him was odious. However, the moral turpitude of the victim of a home invasion and assault is not a proper consideration on sentencing. Such consideration may tend to diminish the seriousness of the offence because the victim may be viewed as the author of his own misfortune . [34] The Crown submits that the actions of Mr. Foster and the co-accused were examples of vigilantism. It is common ground that Mr.

Cowan’s actions had been reported to the police but on December 27, 2011, there was no indication that anything came of it and it may be inferred that this factor played a role in the offence. Mr. Foster and the others clearly decided to take matters into their own hands in response to the perceived wrongs committed by Mr. Cowan. That such a decision resulted in a home invasion is particularly abhorrent and not diminished by any behaviour of Mr. Cowan. Even people who have in the past conducted themselves egregiously or criminally have a right to be safe in their own home from criminal behaviour.

I do not, by saying this, in any way condone the behaviour of Mr. Cowan. (Emphasis added) [ 57 ] Putting all of that aside, I am satisfied that the sentencing judge was sensitive to the overall circumstances, including the facts that (

a) the machinery was owned by Aalbers Agro and its removal from NW 15-07-01 W2 was intended to avoid potential problems with the road bans ( Sentencing Decision at para 9(7), summarizing the agreed facts), (

b) removal of the pin meant the machinery could not be

moved (at para 9(8)), and (

c) the parties ongoing conflict “was the instigating factor in the offences to which Mr. Aalbers pled guilty” (at para 12). The sentencing judge had nothing else to work with. I see no error here. b. Dwelling-house [ 58 ] The sentencing judge considered the home invasion to be an aggravating factor. While Mr.

Aalbers grudgingly concedes that the Criminal Code defines dwelling-house broadly to include an attached garage, he says it would only be aggravating if the breaking and entering had occurred in the actual living space of Armand’s house or if the incident had taken place at night. [ 59 ] This argument engages s. 348.1 of the Criminal Code and the definition of dwelling-house found in s. 2 . Those sections provide as follows: Aggravating circumstance — home invasion 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling- house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. …

Definitions 2 In this Act, … dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (

a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and (

b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence … . [ 60 ] With respect, Mr. Aalbers’s argument ignores the clear wording of s. 348.1 that requires a sentencing judge to consider it to be aggravating if the dwelling-house was occupied at the time of the offence (it was) and that the offender knew that it was occupied (he did) and had used violence or threats of violence to person or property (he also did this).

When a person enters an occupied dwelling-house for purposes of committing a violent offence, the offence will be considered a home invasion that triggers the application of s. 348.1 : R v Clark , 2016 SKQB 150 [ Clark ]. [ 61 ] I do not take Mr. Aalbers to challenge the evidentiary basis for the sentencing judge’s findings of fact on this issue. Although the sentencing judge did not explicitly identify s. 348.1 , it can be inferred from his reasons that he took that provision into account when he found home invasion to be an aggravating factor: see paragraph 28. c.

Level of violence [ 62 ] In a somewhat unusual argument, Mr. Aalbers attempts to divert much of the blame for his offending onto his son, Adam. For instance, he highlights the fact that, unlike Adam, he did not plead guilty to assaulting Armand. Although Mr. Aalbers was jointly charged with breaking and entering and committing an assault with a weapon on Armand, contrary to s. 348(1) (b), that charge was stayed against him. He emphasizes that he only pleaded guilty to assaulting Brittany, who he says suffered minimal physical harm arising from the altercation. Along the same lines, Mr.

Aalbers submits the sentencing judge erred by considering the damage done to the garage door, when that charge was also stayed against him. [ 63 ] I see nothing to either argument. To repeat, the sentencing judge plainly understood that Mr. Aalbers and Adam played different roles in the incident and that Mr. Aalbers exercised less violence overall than did Adam. As noted above, the sentencing judge did not stray beyond the agreed facts: notably, Mr. Aalbers’s admission that he had exerted a level of violence toward Brittany and had tried to kick in the door.

Simply because he was not convicted of damage to property does not mean that the sentencing judge was precluded from considering his involvement in connection with the breaking and entering of the garage. d. Family members [ 64 ] Next, Mr. Aalbers argues the sentencing judge erred in considering as aggravating the fact that the victims are family members.

Section 718.2 (a)(ii) directs a sentencing judge to treat as aggravating “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family”. This provision, Mr. Aalbers says, is meant to address domestic (intimate) partner violence or situations where family members are living together and there is a history of violence between them. The Crown contends the provision says what it says, i.e., that violence perpetrated by the offender on their family writ large is an aggravating factor. [ 65 ] Mr. Aalbers cited no case authority to support his

interpretation. That said, it is worth noting that the Court of King’s Bench for Saskatchewan in R v Pastuch , 2019 SKQB 196 , took a broader view of the provision in holding fraud on the offender’s extended family members was an aggravating circumstance of the offence.

[ 66 ] I am prepared to accept that s. 718.2(a)(ii) is somewhat ambiguous and capable of different

interpretations. However, as I will discuss, I need not resolve the

interpretation issue and will leave it for another day because Mr. Aalbers’s argument can be determined much more simply. [ 67 ] As mentioned, s. 718.2 (

a) instructs sentencing judges to take aggravating and mitigating circumstances into account relating to the offence and the offender. The provision goes on to list numerous factors, of which family abuse is one. But by framing the introductory words of s. 718.2 (

a) to say, “without limiting the generality of the foregoing”, it can be understood that Parliament did not intend the list to be exhaustive. As drafted, the sentencing judge was permitted to consider other aggravating or mitigating factors unique to Mr. Aalbers and the offence at hand. To that end, the sentencing judge considered the context of the Aalbers family discord that was emphasized at the time of the sentencing hearing. For instance, paragraph 6 of the agreed facts (which can be found at paragraph 9(6) of the Sentencing Decision ) expressly mentions the ongoing civil proceedings between Mr.

Aalbers and Armand regarding ownership of the family farm and the “general animosity among the various members of the Aalbers family”. The sentencing judge recognized as much in making this observation: “Litigation over [Mr. Aalbers brother’s estate] has divided the family. This conflict was the instigating factor in the offences to which Mr. Aalbers pled guilty ” (emphasis added, at para 12). That finding has not been contested. [ 68 ] I see no basis for intervention. e. Impact on Brittany and Armand [ 69 ] Mr.

Aalbers argues that the sentencing judge’s focus should have been on Brittany, not Armand, as the person suffering from any ongoing physical or psychological pain and trauma. In her victim impact statement, Brittany says she remains fearful of Adam; however, as Mr.

Aalbers argues, her relationship with Adam is not relevant to the sentence imposed on him. [ 70 ] Section 722(1) of the Criminal Code requires a sentencing judge to consider victim impact statements in imposing sentence and, pursuant to s. 722(8) , to take into account “the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion”.

A s a matter of law, the negative effect on a victim as expressed in a victim impact statement is an important sentencing consideration: Friesen at para 85 , and R v Drabinsky , 2011 ONCA 582 at para 179 , 274 CCC (3d) 289. [ 71 ] The scope of who might be a victim has enlarged over time and a victim’s voice has been given greater emphasis in the sentencing process. In 2015, the definition of victim found in s. 2 of the Criminal Code was further amended by Bill C-32,

An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts , 2d Sess, 41st Parl, 2015, so that it now reads as follows:

Definitions 2 In this Act, … victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person. See also Canadian Victims Bill of Rights , SC 2015, c 13, s 2 . [ 72 ] While Mr.

Aalbers may continue to see Armand as the instigator, if not the aggressor (a point not lost on the sentencing judge), Armand was clearly a victim as defined by the Criminal Code . The simple fact of the matter is that Mr. Aalbers broke into his dwelling- house. Portions of Armand’s statement relate to his fear for his security – which was relevant to the s. 348(1) (

a) conviction. He said, “For a long time afterwards I never left my wife Brittany at home by herself. When I went to work Brittany would accompany me, not only to help me with my work, but also so we were together in the event … another attack arose. Since the assault Johnny and Adam would both drive up on our property and park in our driveway to disrupt us and intimidate”. [ 73 ] Mr. Aalbers also returns to the theme that the violence and harm perpetrated on Armand was committed by Adam, not him, and that he was not convicted of any offence related to the use of force against Armand personally.

He says the sentencing judge erred by conflating Adam’s actions with his own when he was not charged with any offence where Armand was the victim. [ 74 ] I see no evidence of the sentencing judge having done this; in fact, he said quite the opposite: “I recognize that Mr. Aalbers played a different role in the incident than his son, Adam, in particular less violence” (at para 30).

Although he previously referred to Adam’s charges at paragraph 27 of the decision, those observations were made in the context of his discussion about sentence parity. [ 75 ] Brittany filed a separate victim impact statement in which she said this: The events that happened the day of March 26, 2019 have impacted me more than I thought it would. Instead of being the outgoing person I was before this event, I found myself staying home and not wanting to be left alone.

A simple walk on a country road is no longer an option with the fear that one of the assaulters would see me and try to re-assault or try to come into my home while I am away. My marriage has also been affected, because the two people on trial are my husband’s father and only brother, and because before the downward spiral everyone farmed together trying to get our feet under us has put a strain on how we communicate and understand how each are feeling. Physically I have had reoccurring back pain, as well as neck pain.

I have been able to subside the pain with Tylenol, however the frustration will be leading me to seek massage therapy and possibly chiropractor opinions. [ 76 ] If Mr. Aalbers had wanted to challenge the facts asserted by Brittany in her victim impact statement, it was open to him to make

that request. There is nothing in the record to suggest that he did. Mr. Aalbers also downplays the psychological trauma Brittany suffered because of this incident. His assertion is at odds with the sentencing judge’s findings of fact, which were made with the benefit of having watched the surveillance video, commenting that the crime was “terrorizing for the victims” (at para 31). [ 77 ] On balance, Mr. Aalbers must be taken to argue that the sentencing judge erred by placing undue emphasis on the impact his offending had on Brittany and Armand.

Of course, in fashioning a fit sentence, a court must consider all relevant factors. The impact the offending had on the victims of the offence is but one factor. It would be an error of law to overemphasize it: see Ruby at §19.14. However, as I read the decision, I see no evidence that the sentencing judge erred in the manner suggested by Mr. Aalbers. 4. Errors in assessing the mitigating factors [ 78 ] Mr.

Aalbers submits the sentencing judge failed to give effect to his personal circumstances, expression of remorse and the content of the pre-sentence report, which identified his low risk to reoffend and pro-social supports. Instead, he says, the sentencing judge improperly emphasized denunciation and deterrence over his personal circumstances. [ 79 ] This argument is plainly contradicted by the record. To repeat, the sentencing judge expressly found the following to be mitigating factors: (

a) Mr. Aalbers had requested police assistance before moving the equipment; (

b) the impulsive nature of the offences; (

c) Mr. Aalbers said “No”, prior to Adam striking Armand with the steel grate; and (

d) Mr. Aalbers did not punch or kick anyone. [ 80 ] The sentencing judge also commented on Mr. Aalbers’s personal circumstances (at paras 11–12), the absence of a criminal record (at para 13), his compliance with the conditions of his release (at para 14) and the content of the pre-sentence report (at paras 15– 16). [ 81 ] To the extent that Mr. Aalbers asserts the sentencing judge failed to consider remorse, he is incorrect.

At paragraph 32 of the Sentencing Decision , the sentencing judge said this: “There are significant mitigating factors, in particular the age of the offender, who has no prior criminal record, his otherwise productive life as a farmer, his guilty pleas and his expression of remorse for these offences ” (emphasis added). Importantly, he then said, “These justify some reduction of the sentence proposed by the Crown”. [ 82 ] Since the sentencing judge took all such matters into account, much like his other arguments, Mr.

Aalbers must be understood to assert that the sentencing judge failed to give the mitigating factors more weight. As discussed above, how a sentencing judge weighs and balances the aggravating and mitigating factors does not give rise to an error in principle unless it was done unreasonably. 5. Conclusion with respect to the error of principle ground [ 83 ] Respectfully, a careful consideration of how the sentencing judge arrived at the sentence for Mr. Aalbers reveals no error in principle. As I see it, Mr.

Aalbers asks the Court to parse the Sentencing Decision in search of error that might have had an impact on the sentence. At several points in his grounds of appeal, Mr. Aalbers appears to ignore the findings of fact, the agreed facts or simply hopes this Court will re-weigh the factors by placing greater emphasis on the mitigating factors and his plea arrangement and less on the aggravating factors, particularly the fact that this was a home invasion. Proper appellate review does not permit this type of analysis for any sentence. B. The sentence was not demonstrably unfit [ 84 ] Next, Mr.

Aalbers argues the sentencing judge relied on decisions that bore no similarity to his offending and that the sentencing judge disregarded or misapplied the parity principle.

He builds on this argument by pointing to R v Bear , 2022 SKCA 7 [ Bear ], from this Court and R v Hynes , 2016 NLCA 34 , 380 Nfld & PEIR 6 [ Hynes ], from the Newfoundland and Labrador Court of Appeal in suggesting that the case law relied on by the Crown – namely, Payne , R v Sikora , 2016 SKQB 89 , 482 Sask R 1 [ Sikora ], and R v Debigare , 2014 SKCA 2 , 433 Sask R 8 [ Debigare ] – is distinguishable and should have been either disregarded or given less weight by the sentencing judge. Mr.

Aalbers also argues the ten-month concurrent sentence for the assault charge is excessive and is the highest sentence ever imposed in Saskatchewan for a first-time offender. [ 85 ] Before turning to the applicable sentencing jurisprudence for home invasion cases, a brief word about Bear and Hynes is in order . [ 86 ] Bear must be read with care. Mr. Bear pleaded guilty to breaking and entering a dwelling-house and committing assault causing bodily harm on his domestic partner. He was sentenced to a custodial term of one year, followed by an 18-month period of probation. The Crown appealed from sentence.

This Court, exercising an appellate function, was required to take a deferential approach to Mr. Bear’s sentence and could not (absent error) approach the matter as if sentencing afresh. Quite apart from that important judicial context, Bear is clearly distinguishable on its facts. First, as part of a plea arrangement with the Crown, Mr. Bear pleaded guilty and, in exchange, the Crown agreed to cap its sentencing submission at two years. That limitation no doubt played a role in how the trial judge fashioned the sentence for Mr. Bear. Furthermore, it was clear from the sentencing decision that Mr.

Bear’s Gladue factors played a significant role in the sentence he received. [ 87 ] In Hynes , the offender was convicted of breaking and entering, assault, mischief and breaches of an undertaking. He was sentenced to time served, which was 105 days, plus 90 days to be served intermittently. Mr. Hynes had broken down the front door to an apartment he had shared with his former domestic partner, pushed her out of the way, entered the dwelling and kicked the television

screen twice. The trial judge found the assault to be at a lower level on the scale of assault. The Crown’s appeal from sentence was dismissed. Even though the court recognized that the sentence fell outside of the normal range, it dismissed the appeal because it found the trial judge not only understood that he was sentencing below the range but provided cogent reasons for doing so based on the unique circumstances of that case.

The Court of Appeal accepted that reasoning and found no basis to interfere. [ 88 ] This Court’s decision in MacLeod provides the most current guidance on sentencing for home invasion offences. In that case, Mr. MacLeod and three others committed a violent drug rip, which involved the breaking and entering of an occupied dwelling-house for purposes of robbing the occupants of drugs and money and where one of the perpetrators had been killed. Mr.

MacLeod received a seven- year sentence of imprisonment following his guilty plea to charges of breaking and entering with the intent to commit an indictable offence ( s. 348(1) (a)) and disguise with intent (s. 351(2)). The Crown stayed all of the weapons charges that had initially been laid against him. Mr. MacLeod had no prior criminal record as an adult and had not directly injured any occupant of the dwelling-house.

Each of his co-accused received the same sentence pursuant to a joint submission. [ 89 ] The sentencing judge was found to have erred by relying too heavily on the seven-year sentence imposed on the co-accused pursuant to a joint submission, finding it “detrimentally affected her assessment of sentence proportionality to the gravity of Mr. MacLeod’s offences and to the degree of his responsibility for them” (at para 11). [ 90 ] Having found error, the Court turned its attention to what a fit sentence would be for Mr. MacLeod.

Speaking for the Court, Caldwell J.A. began with the observation that s. 348.1 is Parliament’s signal that sentences for home invasion offences are to be treated seriously. Although not mentioned in MacLeod , the maximum sentence set by Parliament – imprisonment for life – is yet another clear indicator of how sentencing judges are to approach these sorts of offences. [ 91 ] Turning to this Court’s jurisprudence, Caldwell J.A. held that “denunciation, deterrence and protection of the public are the paramount objectives in sentencing in offences of this nature” (at para 36).

The following oft-cited passage from Pelly is said to underscore this point: [57] It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice.

So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” in order to protect the public from the invasiveness and violence associated with them. [ 92 ] Canvassing the applicable jurisprudence, Caldwell J.A. in MacLeod found the sentencing range to be between 4 to 15 years of imprisonment for offences of comparable gravity: [38] In its submissions to the sentencing judge, the Crown identified a sentence range of seven to ten years’ imprisonment.

A rough comparison does not address the strength of the respective mitigating and aggravating circumstances present in each case, but sentences ranging from four to 15 years are commonly imposed, sustained or left untouched by this Court in so-called home invasion offences of roughly comparable gravity: R v Pelly , 2017 SKCA (SentDig) 26 (7 years); R v Noname , 2017 SKCA 22 (12 years); R v Noname , 2017 SKCA 21 (5.5 years); R v Klemenz , 2015 SKCA 89 , [2016] 1 WWR 234 (12 years; 12 years); R v Desnomie , 2012 SKCA 11 (47 months); R v G.J. , 2011 SKCA 133 , 377 Sask R 129 (7 years); R v Montgrand [2010 SKCA 159] (7 years); R v Lemaigre , 2010 SKCA 158 , 366 Sask R 299 (5 years); R v Peters , 2010 SKCA (SentDig) 40 (6 years); R v Keepness , 2010 SKCA 69 , 255 CCC (3d) 457 (15 years); R v Bellegarde , 2010 SKCA 15 , 346 Sask R 161 (12 years); R v Campeau , 2009 SKCA 3 , 245 CCC (3d) 258 (4 years); R v Fraser , 2007 SKCA 113 , [2007] 12 WWR 615 (7 years); R v Payne (4 years); R v Pelly (15 years); R v Olivares , 2004 SKCA (SentDig) 25 (6.5 years); and R v Morin , 2004 SKCA (SentDig) 4 (5 years). [ 93 ] Justice Caldwell went on to identify cases where sentences below the range have been imposed but noted the gravity of the offence in each situation was appreciably lower: [39] There are seeming outliers, like R v Foster , 2015 SKCA 114 , [2016] 3 WWR 474 (3 years), R v Bennett , 2014 SKCA (SentDig) 31 (40 months), R v Debigare , 2014 SKCA 2 , 433 Sask R 8 (2-years-less-a-day, plus 3 years’ probation; 18 months, plus 18 months’ probation; 10 months, plus 18 months’ probation), R v Deforest , 2014 SKCA 43 , 438 Sask R 25 (3 years), and R v Lavoie , 2008 SKCA (SentDig) 6 (3 years), but the gravity of the offences in those cases was appreciably lower or the individual circumstances of the offenders had served to mitigate strongly the sentence imposed.

That is, these lower sentence cases are not truly comparable to the offence at hand. [ 94 ] In the end, this Court concluded that “seven to ten years of imprisonment lies at the core of the range of sentences imposed or sustained by this Court for offences of this nature” (emphasis added, at para 40). Mr. MacLeod’s sentence was reduced to 5.5 years of imprisonment on appeal. [ 95 ] The principles with respect to sentencing for home invasion offences were helpfully summarized in Clark , from which the following can be stated with authority: (

a) a home invasion is a serious crime; (

b) denunciation and deterrence are the paramount objectives; (

c) a penitentiary term is often called for; (

d) there is no mandatory starting point in determining a fit sentence for a home invasion; and (

e) the appropriate sentence for a home invasion offence turns on the facts, within the limits imposed by the law. Clark goes on to note that, as in Debigare , R v Manulak , 2015 SKQB 6 , Sikora , Foster , and R v Hockley , 2013 BCSC 113 , leniency is sometimes called for.

[ 96 ] Mr. Aalbers points to Debigare to suggest that the range is not fixed, and that leniency in the form of a suspended sentence is possible. Broadly speaking, that of course is true, but the proposition is subject to significant qualifications. First, in Debigare , the Crown’s appeal from a suspended sentence was allowed and a sentence of 18-months of imprisonment, followed by an 18-month probation order, was imposed in its place.

Of note, this Court cautioned that even the increased sentence it imposed should not be taken to be a standard sentence for a home invasion case and that it was lenient chiefly because of the offender’s laudable post-offence conduct and the absence of a criminal record (at para 41).

As to the option of a suspended sentence, Debigare made clear that that possibility was not foreclosed, but emphasized that, given s. 348.1 , it will be a “rare occurrence” (at para 33). [ 97 ] In a subsequent home invasion case – Foster – Ottenbreit J.A. made clear that Debigare did not change the sentencing landscape and that “a sentence in a home invasion that would serve the objectives of denunciation and deterrence will usually require a penitentiary term depending on the circumstances” (at para 42). [ 98 ] To conclude, given s. 348.1 of the Criminal Code , the maximum sentence available for an offence under s. 348 of life imprisonment, this Court’s jurisprudence, and the required emphasis on denunciation and deterrence, I see no error in the sentencing judge’s approach to parity.

As becomes clear from the noted cases, there exists a broad range of sentences for home-invasion type offences and that a fit sentence invariably turns on the facts and circumstances of the offence and the offender. The sentence imposed on Mr. Aalbers for the s. 348(1) (

a) charge is not demonstrably unfit. [ 99 ] That leaves Mr. Aalbers’s argument that the sentence for the assault charge is excessive. He says a ten-month period of incarceration exceeds the relevant range for comparable cases for a first-time offender and is the highest sentence ever imposed in Saskatchewan for a first-time offender. [ 100 ] Even if I were to accept his submission that the sentence fell outside of the range, as Lacasse makes clear, a departure from the range is not, on its own, a ground for appellate intervention (see paragraph 11).

First and foremost, determining a just and fit sentence is a highly individualized process that goes beyond a mathematical calculation. It was incumbent on the sentencing judge to assess “the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case” ( Lacasse at para 58 ): see also MacLeod at para 22 . [ 101 ] Mr. Aalbers references a number of sentencing decisions for first-time offenders. He says that in 3 of the 12 decisions he found, a custodial sentence of less than 5 months was imposed, with the longest term being 18 months. In his own factum, Mr.

Aalbers correctly makes the point that it is difficult to extract a case directly on point. This is self-evident for the simple reason that no two offenders or set of circumstances are the same. As such, sentencing is an inherently individualized process. [ 102 ] It bears mention that, pursuant to s. 266, if an assault charge proceeds by way of indictment, the maximum sentence imposed by law is five years. In R v Esau , 2009 SKCA 31 , 324 Sask R 95, the offender was convicted of common assault (among other offences) and sentenced to two years less a day.

In considering whether that sentence should be reduced, because it was concurrent with other convictions that were overturned, Cameron J.A. said as follows: [58] Before turning to whether such a reduction would be appropriate, we might say that reducing the overall sentence below eighteen months is beyond the pale in the circumstances of the case, including the personal circumstances of the appellant. He has an extensive criminal record and was assessed as being a high risk to reoffend.

His record includes convictions for assault in July of 2001, assault causing bodily harm in October of 2002, and assault in March of 2007. Ms Sutherland was the victim of this last assault, which resulted in a sentence consisting of a term of imprisonment of four months, followed by probation for a year. It was during this period of probation that the appellant again assaulted Ms Sutherland on January 2, 2008, and that he attempted to obstruct the course of justice on January 18, 2008. In these circumstances, the January 2nd assault, a common assault under

section 266, might, itself, have merited a term of imprisonment in the order of eighteen months, as demonstrated for example by R . v. Walton , 2008 SKCA 75 , 310 Sask. R. 251.

So, at best, the overall sentence might only be reduced from two years less a day to eighteen months. [ 103 ] In Saskatchewan, where an offender had no prior record, the reported authorities from this Court show a sentence range for common assault from 12 months of probation ( R v Mohammed , 2016 SKCA (SentDig) 18) to nine months of incarceration, plus probation ( R v Blueeyes , 2009 SKCA (SentDig) 16, and R v B.L. , 2008 SKCA 122 , 314 Sask R 276).

Even using these authorities – which, of course, turn on their own facts – a ten-month concurrent sentence is not out of line. [ 104 ] An appellant faces a high threshold to succeed with an allegation that the sentence imposed is demonstrably unfit. Terms such as clearly unreasonable , clearly or manifestly excessive , clearly excessive or inadequate , and substantial and marked departure have been used to describe the idea of demonstrable unfitness: see paragraph 52 of Lacasse . Having regard for the sentencing judge’s assessment of the offence, the circumstances in which it was committed and Mr.

Aalbers’s moral culpability, the sentence imposed on him, while somewhat on the high side, cannot be categorized as clearly unreasonable or manifestly excessive. This argument cannot succeed. C. COVID-19 considerations [ 105 ] Mr. Aalbers spent time in pre-trial custody prior to his release on bail. During that period, Mr. Aalbers claims his health was put at significant risk by the failure of the Regina Correctional Centre to properly handle the COVID-19 outbreak. That failure, he argues, led to him becoming seriously ill with the virus. [ 106 ] Mr.

Aalbers seeks to adduce fresh evidence on appeal in the form of his affidavit filed in support of his earlier application under s. 679 for release pending appeal. In the absence of an application to adduce fresh evidence, the evidence about his experience with COVID-19 while in custody cannot be considered. Even if an application had been brought, I would not have admitted the fresh evidence because the alleged health concerns occurred after he was sentenced. As such, it tells us nothing about whether there was an error in principle or if the sentence was demonstrably unfit.

In other words, it could not have reasonably affected the result. Quite apart from that, Mr. Aalbers chose not to pursue this argument at the time of the appeal hearing.

VII. CONCLUSION [ 107 ] The appeal is dismissed. [ 108 ] Mr. Aalbers is hereby directed to surrender himself into custody at the Regina Correctional Centre in Regina, Saskatchewan, within 48 hours following the release of this judgment. “Schwann J.A.” Schwann J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.