R v Eaglevoice, 2022 SKCA 125

Court of Appeal for Saskatchewan Docket: CACR3552 Citation: R v Eaglevoice , 2022 SKCA 125 Date: 2022-10-13 Between: His Majesty the King Appellant And Emiah Autumn Eaglevoice Respondent Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: Appeal allowed (orally) Written reasons by: The Court On appeal from: Provincial Court, Estevan Appeal heard: October 13, 2022 Counsel: Andrew Davis for the Appellant Joelle Graham for the Respondent The Court I.

INTRODUCTION [ 1 ] Emiah Eaglevoice pleaded guilty to aggravated assault contrary to s. 268(2) of the Criminal Code , breach of a release order and failure to attend court. Crown and defence counsel made a joint sentencing submission, which called for Ms. Eaglevoice to receive a two-year term of imprisonment, coupled with a judicial recommendation that she serve her sentence at an Indigenous-based healing lodge. [ 2 ] The sentencing judge rejected the joint submission. At no point in her oral reasons did she identify a threshold or test that had to be met to justify her departure from the joint submission.

Instead, the sentencing judge, taking a conventional approach to sentencing without the evidence necessary to do that undertaking, determined that a fit sentence for Ms. Eaglevoice was one year of imprisonment followed by 18 months of probation. [ 3 ] The Crown appealed from the sentence imposed. At the time of the appeal hearing, we granted the Crown leave to appeal, allowed the appeal, and varied the sentence, with the promise of written reasons to follow. These are those reasons. II. BACKGROUND [ 4 ] On the evening of September 2, 2020, Ms.

Eaglevoice and her boyfriend were at Robert Pelletier’s apartment, where they were drinking and using other intoxicating substances. According to Ms. Eaglevoice’s legal counsel, an altercation occurred between Ms. Eaglevoice and Mr. Pelletier, which Ms. Eaglevoice found disrespectful to women. Things deteriorated to the point where Mr. Pelletier allegedly assaulted Ms. Eaglevoice. [ 5 ] Ms. Eaglevoice and her boyfriend left Mr. Pelletier’s apartment, but, a short while later, she returned on her own. Mr. Pelletier discovered Ms. Eaglevoice trying to enter into his residence through a window.

When he opened the door to find out what she was up to, Ms. Eaglevoice stabbed him six times. Mr. Pelletier was taken to the hospital due to his injuries. [ 6 ] Ms. Eaglevoice is a young, Indigenous woman who presented with many Gladue factors and no prior criminal record. However, according to the author of her pre-sentence report, Ms. Eaglevoice maintained that Mr. Pelletier had assaulted her first and she “appeared to display no remorse for her actions”. Ms. Eaglevoice has a history of drug and alcohol abuse and suffers from mental health issues.

On at least three occasions, she has been admitted to the hospital for treatment of psychotic symptoms induced by the consumption of drugs. [ 7 ] A sentencing hearing was held on March 21, 2022. As noted above, Ms. Eaglevoice pleaded guilty to the charge of aggravated assault, as well as charges of breaching a release order and failing to attend court. As part of the resolution that had been negotiated, the Crown stayed five other charges that Ms. Eaglevoice had been facing.

Crown and defence counsel jointly recommended a two-year term of imprisonment for the charge of aggravated assault, in addition to the time Ms. Eaglevoice had served in pre-sentence custody, and requested that the Court recommend she serve her sentence at the Okimaw Ohci Healing Lodge for Aboriginal Women [Lodge]. The Lodge is a federal carceral institution that offers intensive, culturally focussed programming. No probation order was to follow.

Both parties informed the sentencing judge that they had had extensive discussions in formulating their joint submission. [ 8 ] After the Crown prosecutor went through the facts on the aggravated assault charge, defence counsel addressed the Court on the proposed sentence. She began her remarks by expressing the view that, despite having no criminal record, a 15-month custodial sentence was the lowest sentence possible for Ms. Eaglevoice, in light of the relevant jurisprudence. However, she went on to emphasize that Ms.

Eaglevoice’s agreement to the longer sentence – which would place her in a federal institution – was intended for the specific purpose of allowing her to access the Indigenous-based programming at the Lodge. Defence counsel explained the underlying rationale for the proposed sentence in this way: “it’s the only way for her to be eligible to be referred to there is through the federal -- through the federal system, which is why we’re recommending this”. After describing Ms. Eaglevoice’s somewhat transient teenage years, defence

counsel returned to the rehabilitative purposes that underpinned the joint submission: So, in -- in speaking with her, and -- and I spoke with her, obviously, about this joint submission, a big consideration, again, was where can Ms. -- like, what sentence is really going to help Ms. Eaglevoice? One the one hand it’s not, maybe, the -- the least strict sentence, as far as a term of incarceration. It might be that Your Honour may have deemed that a -- that a shorter period of incarceration is going to be beneficial.

Then she would have spent that period of incarceration in -- if it was anything less than two years, of course, would be served at Pine Grove [a provincial correctional centre]. And there is some programming available there, but not the same kind of intensive programming specifically -- specifically geared to assisting in the same way that the Okimaw Ohci Healing Lodge is, Your Honour. [ 9 ] Defence counsel went on to point out that, if Ms.

Eaglevoice was sentenced to a provincial term of incarceration, she would simply serve her time and be released into the community, without the benefit of the types of community supports that accompany a federal sentence. Defence counsel expressed the need for community support in Ms. Eaglevoice’s transitioning back into the community and noted that a federal sentence would allow her to address the trauma in her life.

She concluded by saying this: [B]ut I worry that if she doesn’t get some intensive help, and -- and in a place where she can, like I said, be safe, not have to worry about where she’s going to get her meals, and have a place to sleep. I’m concerned that this is [not] going to be the last time that she appears before this court, because there’s just not been stability in her life.

I’m hoping, ideally, she wouldn’t have to go and do a federal sentence to get that; but, in all the circumstances, I think this is the best one for her, as far as potential for long-term rehabilitation, stability, and -- and just to help her get back onto a good life path. [ 10 ] The sentencing judge expressed her reservation with the joint submission, which she characterized as being “way out of balance”. Her concerns included the following: (

a) Ms. Eaglevoice did not have a criminal record; (

b) the proposed sentence was, in her view, contrary to s. 718.2 (

e) of the Criminal Code in that it failed to account for the circumstances of an Indigenous offender; (

c) there appeared to be triable issues about Ms. Eaglevoice’s culpability for the offences; and (

d) if Ms. Eaglevoice re-offended, her next sentence would likely start at two years. The sentencing judge concluded by stating, “And I’m looking at a balance here. I’m trying to figure out what is appropriate in these particular circumstances for this particular offender on these charges, and whether a penitentiary sentence is the starting point for someone who has no prior record”. She adjourned the matter to the next day to consider whether she would accept the joint submission. [ 11 ] When the hearing resumed, the sentencing judge rejected the joint submission.

She did so without referring to R v Anthony- Cook , 2016 SCC 43 , [2016] 2 SCR 204 [ Anthony-Cook ], or, for that matter, identifying any test or threshold to be applied in determining whether she could depart from the joint submission. She found the proposed sentence to be unfit, disproportionate to case authority and inconsistent with s. 718.2 (

e) of the Criminal Code . The sentencing judge then, applying conventional sentencing principles, sentenced Ms. Eaglevoice to a 12-month term of imprisonment, followed by an 18-month period of probation. [ 12 ] The Crown appealed from that sentence. Unfortunately, for reasons that were not made clear to the Court, the filing of the Crown’s factum was delayed, and the appeal was not heard until 6.5 months after the imposition of sentence. In the meantime, Ms. Eaglevoice has been serving her sentence in the provincial correctional system at the Saskatchewan Hospital in North Battleford.

By all reports, she has actively participated in the forms of programming the facility has to offer, including mental health therapy and addictions counselling. No behavioral management concerns have arisen. Being in the provincial correctional system, Ms. Eaglevoice is eligible for early release on October 28, 2022. She has secured housing on her First Nation upon her release from custody. III.

ANALYSIS [ 13 ] While a judge is not bound by a joint submission on sentence, where they consider departing from that recommendation, as the Supreme Court outlined in Anthony-Cook , a public interest test must be applied in making that determination: “Under this test, trial judges ‘should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest’” (at para 29, quoting Ontario, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, 1993) (Chair: The Honourable G.

Arthur Martin, Q.C.) at 327 (identified in that case as the Martin Committee Report )). [ 14 ] Prior to Anthony-Cook , courts across Canada applied different standards to resolve the issue of when it would be appropriate to depart from a joint submission. The public interest test was one such test.

In the application of that test in R v Druken , 2006 NLCA 67 at para 29 , 261 Nfld & PEIR 271, the Newfoundland Court of Appeal held that, to reject a joint submission, the proposed sentence must be so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system” (at para 29).

Similarly, in R v B.O. , 2010 NLCA 19 , 252 CCC (3d) 498), that court stated, when considering a joint submission, judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts” (at para 56). [ 15 ] Anthony-Cook adopted those statements of principle as forming the essence of the public interest test. What this means, the Supreme Court said, is that a joint submission should not be rejected lightly.

That court went on to describe the basis for departing from a jointly proposed sentence in these strongly worded terms: [34] … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold … .

The principles expressed in Anthony-Cook were recently affirmed in R v Nahanee, 2022 SCC 37. [16] Of importance to this case is the Supreme Court’s express rejection of the simple fitness test, finding it “not sufficientlystringent” (Anthony-Cook at para 46).

That test is directed toward what a fit sentence would be, instead of asking “whether the sentenceproposed would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system” (emphasisin original, at para 46). [17] Speaking for the court in Anthony-Cook, Moldaver J. went on to comment about the rationale for and utility of jointsubmissions in the criminal justice system. From the perspective of the accused, he identified the following benefits (see paragraph 36): (

a) the recommendation “is likely to be more lenient than the accused might expect after a trial and/or contested sentencinghearing”; (

b) an early resolution minimizes “stress and legal costs associated with trials”; (

c) it maximizes certainty; and (

d) in some cases, offers an opportunity to begin the rehabilitative process. [18] The Crown also benefits from joint submissions in a number of ways. First, there is a guarantee of conviction and, hence, lessrisk. Second, the accused may have information of value to the Crown in other investigations, which will or could be forthcoming as aresult of the joint submission. Third, where an accused pleads guilty in exchange for a joint submission, “victims and witnesses are spared‘the emotional cost of a trial’” (Anthony-Cook at para 39, quoting R v Edgar, 2010 ONCA 529 at para 111, 260 CCC (3d) 1).

Fourth,victims may find solace in the process because it represents an acknowledgment of responsibility and the possibility of an expression ofremorse. [19] The administration of justice at large was identified as the final benefactor of a joint submission. Justice Moldaver described thebenefits to be gained by it in this way (Anthony-Cook): [40] … guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is nosmall benefit.

To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently.Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventuallycollapse under its own weight. [20] For all those reasons, the parties must be able to place a high degree of confidence in the belief that the bargain they struck willbe accepted. Without that, there exists “[t]oo much doubt and the parties may choose instead to accept the risks of a trial or a contestedsentencing hearing” (at para 41).

Accordingly, judicial restraint is necessary and a stringent test for rejection is required: “A lowerthreshold than this [public interest test] would cast the efficacy of resolution agreements into too great a degree of uncertainty” (atpara 42). [21] Finally, we find it helpful to underscore and repeat the Supreme Court’s observations in Anthony-Cook about the knowledgeand value Crown and defence counsel bring to the process: [44] … Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and theaccused (Martin Committee Report, at p. 287).

As a rule, they will be highly knowledgeable about the circumstances of the offender andthe offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community’sinterest in seeing that justice is done (R. v. Power, (SCC), [1994] 1 S.C.R. 601, at p. 616). Defence counsel is required toact in the accused’s best interests, which includes ensuring that the accused’s plea is voluntary and informed (see, for example, LawSociety of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8).

And both counsel are boundprofessionally and ethically not to mislead the court (ibid., rule 2.1-2(c)). In short, they are entirely capable of arriving at resolutions thatare fair and consistent with the public interest (Martin Committee Report, at p. 287). [22] With those principles in mind, we return to the matter at hand. [23] In this case, the Crown argues that, when deciding to reject the joint submission, the sentencing judge not only failed to applythe Anthony-Cook public interest test but adopted and applied a fitness test that had been expressly rejected by the Supreme Court.

Thefailure to apply the correct legal test, the Crown asserts, is an error in principle. [24] Ms. Eaglevoice concedes the sentencing judge fell into error in this way. [25] The sentencing judge rejected the joint submission after comparing the proposed sentence to what she considered to be a fitsentence for Ms. Eaglevoice, having regard to such things as the sentencing jurisprudence (albeit for cases involving a lesser offence),Ms.

Eaglevoice’s Gladue considerations (which were presumably drawn from the pre-sentence report), and her mitigating factors (i.e.,first time offender and a guilty plea and, again, presumably drawn from the pre-sentence report). In terms of the sentencing judge’sproportionality analysis, even though she did not have the benefit of presiding over a conventional sentencing hearing, the judge found thatthe gravity of the offence was “potentially between mid to high range in this case” because of the stabbing but discounted its seriousnessby reference to the “possible context of where [Ms.

Eaglevoice] was first assaulted by the victim” and the absence of any evidence aboutthe severity of the wounds sustained by Mr. Pelletier. In the result, she concluded by saying the following: In light of this information the Court is not able to accept the proposed sentence in light of it being contrary to other cases that are similarin nature where parity is not achieved.

As well, it is proposing a disproportionate sentence and is applying the Gladue case incorrectly.Deterrence and denunciation may be achieved by a proportionate sentence. [26] As the Supreme Court made abundantly clear in Anthony-Cook, sentence fitness is not the test for determining whether todepart from a joint submission. Responding to a similar error in Anthony-Cook, the Supreme Court said this: “Setting aside that the trial

judge failed to apply the proper test – he asked only whether the joint submission was fit – he failed to take into account the important systemic benefits of joint submissions, and the corresponding need for them to be reasonably certain” (at para 61). Clayton Ruby makes a similar point ( Sentencing , 10th ed (Toronto: LexisNexis, 2020)): §3.67 It is not sufficient for the trial judge to conclude that the proposed sentence is not fit and does not fall within the appropriate range of sentence for the offence.

The sentence must be so inordinately lenient or unacceptably harsh that it would be contrary to the public interest and would otherwise bring the administration of justice into disrepute to agree to impose it. Put differently, the sentence must be so unacceptable that reasonable persons knowing all the circumstances of the case “would view it as a breakdown in the proper functioning of the criminal justice system”. [ 27 ] We agree that the sentencing judge fundamentally erred in principle and that appellate intervention is warranted. The question that remains is how to address this error.

In the normal course, where an appeal of this nature is allowed, the sentence proposed under the joint submission is substituted for that imposed by the sentencing judge. However, this situation does not fall under the normal course. [ 28 ] Let us explain. Sentencing Ms. Eaglevoice to a one-year term of incarceration placed her in the provincial correctional system. That placement deprived her of the ability to access the integrated, culturally sensitive programming that is offered by the Lodge. From Ms. Eaglevoice’s perspective, that was the key part of the bargain she had struck with the Crown.

However, we understand that, if we were to restore the joint submission as it was proposed before the sentencing judge, Ms. Eaglevoice would not spend the balance of the custodial portion of her sentence in her preferred facility. Nonetheless, as things have turned out, Ms.

Eaglevoice was placed at the Saskatchewan Hospital, where she has received beneficial programming – although not the Indigenous-focused rehabilitative programming that she sought to receive through the joint submission. [ 29 ] Moreover, a transfer to the federal system at this juncture would, as we understand it, most likely add significantly more actual custodial time to Ms. Eaglevoice’s sentence. This presents a clear unfairness to her. Had Ms.

Eaglevoice been sentenced as proposed by the Crown and defence, she would have been eligible for parole in November of 2022, presumably after receiving the rehabilitative programming she sought at the Lodge. To place her in a position where she would receive the sought-after programming in the federal system at this time, we would have to significantly increase her custodial sentence.

Put another way, removing her from the provincial system will deprive her of early release, which, as noted above, is slated for October 28, 2022, under the sentence she is currently serving. [ 30 ] Given the hopefully unique peculiarities of her situation, counsel for Ms. Eaglevoice and the Crown agreed that the sentencing judge’s error should be remedied by varying Ms.

Eaglevoice’s sentence slightly to bring it into substantial conformity with the joint submission and the objectives that underpinned it, having regard for the impediments to its full imposition. [ 31 ] For these reasons, we orally granted the Crown leave to appeal, allowed its appeal, and varied the sentence imposed on Ms. Eaglevoice as follows: Ms. Eaglevoice will receive a custodial sentence of 18 months, commencing on March 22, 2022, followed by a two-year term of probation that incorporates the same terms and conditions that were imposed by the sentencing judge.

As well, this Court strongly recommends that Ms. Eaglevoice be allowed to continue to serve the custodial portion of her sentence at the Saskatchewan Hospital in North Battleford. [ 32 ] In closing, we wish to thank counsel for their willingness to work cooperatively in a fashion that both respected the important legal principles enunciated in Anthony-Cook and achieved a just result for Ms. Eaglevoice.