R v Jimmy, 2023 SKCA 28

Court of Appeal for Saskatchewan Docket: CACR3539 Citation: R v Jimmy , 2023 SKCA 28 Date: 2023-03-01 Between: His Majesty the King Appellant And Sterling Jimmy Respondent Before: Jackson, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Tholl In dissent: The Honourable Madam Justice Jackson On appeal from: Provincial Court (Sask), Saskatoon Appeal heard: November 10, 2022 Counsel: W. Dean Sinclair, K.C., for the Appellant Christopher Gratton for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] After a trial in Provincial Court, Sterling Jimmy was convicted of aggravated assault. The charge stemmed from an incident in which Mr. Jimmy caused permanent and life-altering injuries to the victim. The trial judge sentenced Mr. Jimmy to a term of imprisonment of two years less a day (minus credit for pre-sentence custody), followed by a two-year probation order, and made various ancillary orders. The Crown appeals against the sentence. It says the trial judge failed to follow the principled approach to sentencing mandated by

Part XXIII of the Criminal Code and, as a result, imposed a sentence that is out of line with sentences imposed on similar offenders in similar cases and does not comply with the fundamental sentencing principle of proportionality. [ 2 ] For the reasons that follow, I would grant leave to appeal and allow the Crown’s appeal. II. BACKGROUND A. The offence and the trial decision [ 3 ] On November 23, 2019, Mr. Jimmy was at a residence on the Whitecap Dakota First Nation with his uncle, Greg Parenteau, and several other people. Mr. Jimmy and Mr. Parenteau were both drinking.

At some point, a dispute arose between them. Mr. Parenteau punched Mr. Jimmy and pushed him back against a kitchen cupboard. Mr. Jimmy responded by punching Mr. Parenteau in the face and knocking him to the floor. Mr. Jimmy then proceeded to stomp on and kick Mr. Parenteau’s head and body, delivering at least 5 to 10 blows of that nature while Mr. Parenteau lay there, defenceless. After that, Mr. Jimmy left the house. [ 4 ] Mr. Jimmy’s actions left Mr. Parenteau unconscious and bleeding.

He remained on the floor in that state for more than an hour before another family member, thinking he had passed out from drinking, moved him to a bedroom. The next day, it became apparent that Mr. Parenteau had been gravely injured. An ambulance was called, and he was rushed to the hospital. His injuries, as mentioned above, were more than just grave; they were life-altering. Among other things, Mr. Parenteau, who was 40 years old at the time, had suffered a significant hematoma (internal bleeding) in his right lateral scalp and the periorbital regions of his brain.

He spent six weeks in hospital recovering from his injuries, during which time he had to be fed through a nasogastric tube and, later, through an abdominal tube, because he was unable to feed himself. The hematoma and the pressure it created inside Mr. Parenteau’s skull caused a diffuse axonal injury (tearing of the brain tissues) and left him with a lasting facial droop and slurred speech, as well as permanent impairment of his memory, cognitive function, physical mobility and motor skills.

He had to undergo extensive physical therapy to retrain himself to walk and talk. [ 5 ] At the time this incident occurred, Mr. Jimmy was out on bail in relation to another charge of assault. He was subject to a release order that contained conditions requiring him to obey a curfew and to abstain from the possession or consumption of alcohol. He was in breach of both of those conditions when he assaulted Mr. Parenteau. [ 6 ] At his trial, Mr. Jimmy called no evidence but argued for an acquittal on the basis that he had acted in self-defence. That argument was rejected.

Even though the trial judge accepted that Mr. Parenteau had started the physical confrontation and that the first punch Mr. Jimmy threw had been for the purpose of defending himself, he determined that the kicks and stomps Mr. Jimmy inflicted on Mr. Parenteau after that had gone far beyond a proportionate response. In finding him guilty of aggravated assault, the trial judge described Mr. Jimmy’s actions as “overwhelmingly inappropriate to the situation” and “an enraged response to a provocative punch by a drunk individual” ( R v Jimmy (6 October 2021) Saskatoon (Sask PC) at para 32). B. The sentencing decision

[7] At the sentencing hearing, the Crown sought a five-year sentence for Mr. Jimmy. Crown counsel highlighted the seriousnessof the assault and the lasting impact of the injuries that Mr. Jimmy had inflicted on Mr. Parenteau. While the Crown acknowledged thatsome of Mr. Jimmy’s personal circumstances were of particular relevance in the determination of a fit sentence, including those linked tohis heritage and the legacy of what Indigenous people have suffered because of colonialism and the residential school experience, it alsocontended that those factors did not significantly reduce his moral culpability.

The Crown urged the trial judge to focus on denunciationand deterrence as primary sentencing objectives. It pointed out that Mr. Jimmy, according to comments attributed to him in the pre-sentence report, took little responsibility for his actions, as he placed blame for what had happened on Mr. Parenteau. The Crown alsoobserved that Mr. Jimmy had a record for other offences of violence, including a 2018 conviction for assault causing bodily harm, a 2019conviction for assault (the charge for which he was on bail at the time of committing the assault against Mr.

Parenteau), and a 2020conviction for breaking, entering and committing assault, which had occurred after he committed the offence against Mr. Parenteau. [8] Mr. Jimmy’s lawyer argued that a shorter jail sentence, one of less than two years, followed by a period of probation, shouldbe imposed. He questioned whether the extent of Mr. Parenteau’s injuries might have been due, in part, to a medical condition that madehim more susceptible to brain injury, rather than being entirely attributable to the severity of the assault. He also pointed out thatMr.

Jimmy had been steadily employed for the two years prior to sentencing and that he had taken programming to address his issues withalcohol abuse. He urged the trial judge to consider s. 718.2(

e) of the Criminal Code and the principles laid down in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], in fixing the sentence. He asserted that Mr. Jimmy had suffered the effects of racism. Healso stated that, in general, “First Nations peoples have lived in such a different world than the rest of Canadians”, and “there is muchmore violence within the First Nations communities, as a result of their dislocation, dysfunction, and a variety of other factors”. [9] The trial judge concluded that a sentence of imprisonment of two years less a day was appropriate for Mr. Jimmy.

He reducedthat by 38 days to account for pre-sentence custody and also imposed a two-year probation order to follow, with conditions that includedparticipating in assessments and programming for addictions and anger management, and a requirement to perform 75 hours ofcommunity service work. He gave the following reasons for imposing that sentence (R v Jimmy (15 February 2022) Saskatoon (Sask PC)[Sentencing Decision]): You’ve been convicted of aggravated assault, and that is a serious offence. And the Court of Appeal said that has to take a serioussentence. I can’t find it in my heart to send you to the Pen.

I think that would be too serious [a sentence] for you, given your age, and forthese reasons. … Your lawyer has asked for two years less a day, essentially. I can’t give you a suspended sentence. That’s totally off the range, given yourrecord and the severity of this assault; but, by the same token, this was not, in my opinion – I’ve heard the facts. The complainant wasvery seriously injured. It’s a miracle he didn’t die, frankly. You’re lucky he didn’t die. I mean, he was left on the floor overnight,essentially, after being kicked in the head. … And – but it’s not something you set out to do deliberately.

You didn’t, sort of, get up that morning and say, I’m going to kick someone,stomp them in the head. I realize that wasn’t your plan. It wasn’t like you robbed somebody, and in the process of that robbery, a totalinnocent person, you kicked him. This was you guys were drinking together; however it happened, there was a disagreement. Thecomplainant provoked you somewhat. He got up, and I think he threw the first punch, that you reacted. And you reacted – maybe becauseyou’re younger, maybe because you had more to drink, I don’t know, but you reacted quite violently. And that’s the part that brings you tocourt today.

We’re very – that’s the part that really has got you into trouble today. If it just had stopped at the – at the one – the onesmack, and he smacked you back, you wouldn’t even be here today. It’s the kicking on the ground that brings you to court. That’s why theCrown charged you with aggravated assault; and, quite frankly, in my opinion, that was the only reasonable judgment to render was the ag.– on the ag. assault was a conviction. So, having said that, there’s lots of aggravating circumstances, but I don’t find your record that serious. We deal with a lot more seriousrecords. You’re a relatively young man.

You do have an assault back in 2018, assault causing, for which you got one day, and probation.Then you had the common assault in 2019, which must have happened sometime during the course of this offence, which occurred, Ithink, in November of 2019, if memory serves correct. November 23rd. So this was a pretty rough patch for you, those two years. I’m notsure what was going on. I suspect there was too much alcohol being consumed; but then you had the final B and E to commit an assault in2020, for which you got 87 days. Now, to take you from 87 days to Pen time is a pretty big jump.

Most judges, including myself, there’s a step principle, you kind of go upto the top. Now, you can reach the top, if you kill someone, of course, you’re not going to get two years less a day. You would go right tothe top of the heap. But this is a situation where there was some provocation. There was a lot of drinking.

I think it’s a miracle thecomplainant didn’t die; but that really wasn’t your fault, after you stopped the kicking – I mean, for whatever reason he was just – I guesseveryone thought he had passed out, and sort of laid there for the night until – I think it was his son who came through the next day, andthey tried to wake him up, he wouldn’t. That’s when they got him to the hospital, so – but he spent a great deal of time in hospital. He haslife-threatening injuries, and life – lifelong injuries. He’s going to have to deal with this for a long period of time.

So having said that, given your – your record ends in 2018, with the most serious – sorry, it’s 2020. The most lengthy sentence you’ve gotwas 87 days. I don’t think it would be appropriate to send you to the Pen. The Pen, for me, is a place for very, very violent offenders, whoare usually much older than you are. And, also, I’ve read the – I think your pre-sentence report is relatively positive, in terms of you’vereduced your risk to medium.

If they’d given you a high risk, I certainly would be more in line with [Crown counsel’s] suggestion you goto the Pen; but you’ve reduced your risk to medium, from high: (as read) This reduction in his risk level is largely due, in large part, to the progress Sterling has made in addressing certain risk factors. This hasincluded maintaining employment, reduction of alcohol use, and attendance in case management with Community Corrections. He wasalso an active participant in the Safe Program through Community Corrections, where he gained greater insight. So that tells me that you are taking it seriously, I hope.

I don’t believe you’ve been in trouble since this offence, other than that – was there– I think there was maybe a breach, or something, a minor breach; but there’s no previous assault – no other assault since this happened.

So – [CROWN COUNSEL]: The 2020 [breaking, entering and committing assault] occurred after this, Your Honour. THE COURT: Sorry? … Right. So, at the end of the day, given all those factors, given significant Gladue principle as well, I am not a big believer in sendingpeople to jail, of any description. And, quite frankly, there are far too many Aboriginal offenders in the bucket already. Seventy-fivepercent of the adult population in jails is Aboriginal. I think there’s too many Aboriginal in jail.

Having said that, the Court of Appeal saidthe more serious the offence the less influence that Gladue has on these things; but I am satisfied, in your case, an appropriate sentencewould be two years less a day, plus probation. … I could easily have given you three years, or even be it four years, which may have been supported by the Court of Appeal; but given thefact you’ve made some progress in your rehabilitation while being out, your Gladue principles, and your previous record, I am satisfiedthe appropriate sentence will be two years less a day, less remand credit.

That’s going to be followed by probation, though. I thinkprobation is a good idea for you. I think alcohol has been a significant problem in your life. I think you’d be much better off without it. Ithink you can have a much happier life without it. For some people one drink is too many and a hundred is not enough. That may be you.And there’s no shame in admitting that and doing something about it. Hopefully this is a – you know, this will be the last time we ever seeyou here. III. ANALYSIS A.

Standard of review [10] The standard of review that governs sentence appeals permits an appellate court to “intervene to vary a sentence if (1) thesentence is demonstrably unfit … or (2) the sentencing judge made an error in principle that had an impact on the sentence” (R v Friesen,2020 SCC 9 at para 26, 391 CCC (3d) 309 [Friesen], citing R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089): see also R v Suter, 2018 SCC34 at para 24, [2018] 2 SCR 496. [11] Errors in principle that may justify appellate intervention include errors of law, failure to consider a relevant factor, or theerroneous consideration of aggravating or mitigating factors.

An appellate court cannot intervene merely because it would have weighedrelevant sentencing objectives, principles, or factors differently than the sentencing judge (R v McKnight (1999), (ONCA), 119 OAC 364 (CA)): [35] … To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessedagainst the reasonableness standard of review.

Only if by emphasizing one factor or by not giving enough weight to another, the trialjudge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erredin principle. [12] Not every error is material. If an error in principle had no impact on the sentence, appellate intervention will be justified only ifthe sentence is demonstrably unfit.

A demonstrably unfit sentence is one that it is clearly or manifestly excessive or inadequate or one thatrepresents a substantial and marked departure from what would be a fit sentence (Friesen at para 26 and Lacasse at para 52). [13] The objectives and principles that Parliament has codified to guide sentencing judges in the determination of a fit sentence areset out in s. 718 to s. 718.21 of the Criminal Code. While it is not an error for a sentencing judge to fail to make specific reference to thoseobjectives and principles, it is an error to not consider them or to misapply them.

The Crown argues that the trial judge in this case erredby failing to apply or consider any objectives or principles of sentencing. Its central assertion is that the trial judge made no effort toidentify the sentencing objectives that required emphasis in Mr. Jimmy’s case and, as a result, failed to engage in a coherent assessment orapplication of the relevant sentencing principles. Instead, the Crown says the trial judge decided the matter based on his subjective andemotional view that the sentence the Crown was seeking was too long. B.

Alleged errors in principle [14] As I will discuss, I am persuaded that, under the umbrella of its central assertion, the Crown has identified several errors inprinciple that the trial judge committed in determining Mr. Jimmy’s sentence. Cumulatively, those errors had an impact on the sentenceimposed, and, accordingly, it falls to this Court to intervene and fashion an appropriate sentence. 1. Treatment of age and relative propensity for violence as sentencing considerations [15] One of the reasons the trial judge gave for rejecting a penitentiary term was that it would be “too serious” a sentence forMr.

Jimmy given his age. He went on to say that it would be inappropriate to send Mr. Jimmy to the penitentiary because “[t]he Pen … isa place for very, very violent offenders, who are usually much older than [Mr. Jimmy]”. [16] With respect, this reasoning reflects errors in principle. There is no requirement that an offender be “very, very violent” beforea sentence of imprisonment of more than two years can be imposed. The determination of whether a penitentiary sentence is appropriatecalls for consideration of more than just this one attribute of the offender.

All of an offender’s personal circumstances must be taken intoaccount, along with the nature and circumstances of the offence, and its impact on the victim and the community. In this case, Mr. Jimmy

was convicted of an aggravated assault. That offence is inherently serious and carries a maximum sentence of imprisonment of 14 years.The sentencing jurisprudence from this Court demonstrates that penitentiary sentences are commonly imposed for aggravated assault. Inaddition, Mr. Jimmy’s crime had a profound and permanent effect on the victim. In short, it was an error for the trial judge to reason asthough the determination of a fit sentence turned entirely on whether Mr.

Jimmy was part of a particular (and, I might add, ill-defined)class of “very, very violent offenders”, without regard to, among other considerations, the nature of his criminal conduct in the offence forwhich he was being sentenced. [17] It was also an error for the trial judge to reason as though penitentiary sentences are reserved for offenders of a certain age.While an offender’s youth can be considered as a mitigating factor in sentencing, it is also fair to say that its mitigating effect “diminishesin significance as the severity and violence of an offence increases” (R v Tamoikin, 2020 NSCA 43 at para 84).

Moreover, Mr. Jimmy wasnot particularly youthful; he was 29 years old when he committed the aggravated assault against Mr. Parenteau and nearly 31 when he wassentenced. Nor was he a first-time offender. At the time of sentencing, his record contained three other convictions for violent offences,one of which he had committed while awaiting sentencing on this matter. In light of all of that, it was an error for the trial judge to havereasoned that either Mr. Jimmy’s age or the nature of his history of violent offending were factors that militated against a penitentiarysentence. 2.

Application of the step or jump principle [18] In the Sentencing Decision, the trial judge invoked what he called the step principle. This principle – also sometimes referred toas the jump principle – is not found in the Criminal Code, but it is generally recognized by the courts as one that calls for judges toexercise restraint and increase sentences only incrementally when an offender is “sentenced on subsequent occasions for offences of thesame severity” (R v Brick, 2019 ABCA 351 at para 12 [Brick]). Noting that the longest sentence Mr.

Jimmy had received prior to thematter at hand was 87 days, the trial judge determined that imposing a penitentiary term for the present offence would violate thatprinciple because it was too great a step up from any sentence he had previously received. [19] Such reasoning, in my view, demonstrates a misapplication of that principle. While Mr. Jimmy had never received a lengthy jailsentence before, it would not appear that any of his previous convictions involved an offence of the same severity as the aggravatedassault committed against Mr. Parenteau.

His previous sentences had been imposed in relation to assaults of lesser degree.

Severalappellate courts have held that the jump principle has little or no application where the previous sentences, against which the currentsentence is being measured, were not for offences of similar severity: see, for example, Brick at para 12, R v Borde (2003), (ON CA), 168 OAC 317 at para 39 (CA), and R v Green, 2021 ONCA 932 at para 13. [20] Moreover, the jump principle tends to be applied in cases where “rehabilitation is a significant sentencing principle, rather thancases in which denunciation, deterrence and the protection of the public are the dominant sentencing factors” (R v Thomson, 2013 BCCA220 at para 3, 337 BCAC 206).

In Mr. Jimmy’s case, while rehabilitation could not be ignored, the offence of which he was convicted,and the serious level of violence involved in its commission, meant that the sentencing objectives of deterrence, denunciation andprotection of the public had to remain at the forefront. 3. Application of s. 718.2(

e) of the Criminal Code [21] The trial judge also erred, in my respectful view, in his application of s. 718.2(

e) of the Criminal Code.

Section 718.2(e)requires sentencing judges to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances”, whilepaying “particular attention to the circumstances of Aboriginal offenders”. It is an expression of the principle of restraint that applies to alloffenders and mandates a particular approach to the application of that principle where an Indigenous offender is being sentenced. [22] In light of the Supreme Court’s decisions in Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], the properapplication of s. 718.2(

e) requires that judges approach the sentencing of Indigenous offenders in a way that considers the systemic orbackground factors that may have played a

part in bringing those offenders before the courts – and with an eye to implementingsentencing procedures or sanctions that are appropriate in the circumstances for those offenders because of their Indigenous heritage(Gladue at para 66, R v Chanalquay, 2015 SKCA 141 at para 34, [2016] 4 WWR 242 [Chanalquay], and R v Charles, 2021 SKCA 75 atpara 37, [2021] 7 WWR 734 [Charles]).

This approach must be employed even where the offender has committed a serious offenceinvolving personal violence (Friesen at para 92; R v Ratt, 2021 SKCA 7 at para 63, leave to appeal to SCC refused,[Ratt]; R v Noltcho, 2021 SKCA 113 at para 15 [Noltcho]; and R v Bear, 2022 SKCA 69 at para 107 [Bear]) – and even where the natureof the offence calls for a sentence of incarceration (Charles at para 41 and R v J.P., 2020 SKCA 52 at paras 63–64, 62 CR (7th) 328[J.P.]). [23] The approach required by s. 718.2(

e) calls upon “judges to carefully consider (

i) the extent to which an Indigenous offender’sunique circumstances may have had a bearing on their moral culpability; and (ii) whether and how the relevant sentencing objectives canbe actualized through sanctions other than imprisonment or through the term of imprisonment imposed” (Bear at para 108). [24] This distinct approach to sentencing, however, does not necessarily mandate a different result for an Indigenous offender versusa non-Indigenous offender.

Section 718.2(

e) does not require, or permit, an automatic reduction of sentence simply because the offender isIndigenous (Gladue at para 88, Ipeelee at para 75, R v Whitehead, 2016 SKCA 165 at paras 56 and 61, [2017] 5 WWR 222, and R vDillon, 2022 SKCA 17 at para 33, 92 MVR (7th) 214 [Dillon]). As Richards C.J.S. discussed in Chanalquay, “the fundamental dynamicunderlying s. 718.2(

e) when a trial judge sentences an [Indigenous] offender is not merely one of reflexively giving less jail time. Rather,it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approachesare appropriate” (at para 36). [25] Nor does s. 718.2(e), and the analysis it calls for, mean that other sentencing principles can be ignored or that restorative justiceobjectives must necessarily be given priority over objectives such as deterrence, denunciation and separation in relation to Indigenousoffenders.

As is the case with all offenders, the analysis for sentencing Indigenous offenders “must be holistic and designed to achieve a fitsentence in the circumstances” (Gladue at para 81 and Chanalquay at para 38).

[ 26 ] All of that said, a sentencing judge who conducts a proper s. 718.2 (

e) analysis in the course of sentencing an Indigenous offender may well arrive at a sentence that departs from an established range or starting point for a particular category of offence, or one that, on its face, appears to be lenient to the point of not achieving parity with sentences imposed for similar offences. Results of this sort are not, in and of themselves, indicative of error. As Jackson J.A. noted in Charles , appellate courts must be aware that the faithful application of s. 718.2 (

e) may lead to such results and must bring that perspective to bear when reviewing a sentence imposed on an Indigenous offender: [62] In the face of a sentence that has been obviously and conspicuously developed with s. 718.2 (

e) in mind, appellate courts must be particularly sceptical of any argument that does not sensitively consider the sentencing judge’s reasons. An appellate court must be especially critical of any argument that could be perceived as asking for a reassessment of the offender’s degree of responsibility as a means of undermining the sentencing judge’s analysis of an offender’s Gladue factors. … [64] The decisions of the Supreme Court in Gladue and Ipeelee are primarily focussed on how trial courts should approach the sentencing of Indigenous offenders, but they also have profound implications as to how appeal courts should review such sentences. In order for s. 718.2 (

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

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

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

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

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

In order to give proper effect to s. 718.2 (e), and its emphasis on restraint, an appeal court should neither strive to sustain nor strive to overturn what appears to be a lenient sentence, but rather must give careful consideration as to how the judge arrived at the sentence, having in mind the focus of the provision of reducing overreliance on incarceration. (Emphasis in original) [ 27 ] As this passage illustrates, where the sentencing judge’s reasons clearly demonstrate that the sentence has been crafted with s. 718.2 (

e) in mind, appellate courts should be loathe to interfere. In Dillon , Caldwell J.A. expressed the same view, stating that “[w]hen adequate reasons are given as to why a sentencing judge found that Gladue factors had or had not affected moral culpability, whether or how that finding affected the sentence imposed are matters of judicial discretion that warrant appellate deference” (emphasis in original, at para 34 ). [ 28 ] In the absence of an explanation in the sentencing judge’s reasons as to why and how the application of s. 718.2 (

e) led to the sentence imposed, however, it may be difficult for a reviewing court to determine whether the requisite analysis was conducted. While sentencing judges cannot be expected to quantify the effect that Gladue considerations have on the determination of an appropriate sentence, they must endeavour to explain why those factors were applied and how they were taken into account. This is not accomplished by a bare acknowledgment that Gladue factors are present ( Bear at paras 110–112 ). [ 29 ] Nor does s. 718.2 (

e) give judges licence to ignore or misapply other sentencing principles. Even where a proper analysis under s. 718.2 (

e) is conducted, it does not insulate other errors from appellate scrutiny. [ 30 ] In this case, the trial judge made reference to Gladue principles as one reason for concluding that a penitentiary sentence would be inappropriate for Mr. Jimmy, but he did not explain how, why, or to what extent those principles drove him to that conclusion. He simply observed that Mr. Jimmy is Indigenous and expressed the opinion that Indigenous people are disproportionately represented in the prison population. Unfortunately, he did not go beyond making those observations to conduct the analysis called for under s. 718.2 (e).

There is nothing in the record to indicate that he considered whether or how Mr. Jimmy’s unique circumstances and experiences as an Indigenous person may have affected his moral culpability in committing the offence, or whether they were relevant to the determination of how the applicable sentencing objectives should be balanced, or whether they were relevant in some other way. Instead, he appears to have reasoned as though an automatic sentence discount was called for. With respect, that is an error. 4.

The errors had an impact on the sentence imposed [ 31 ] As noted above, appellate intervention is warranted where a sentencing judge’s error in principle has an effect on the sentence imposed. In my respectful view, the errors in this case, considered cumulatively, did that. The trial judge explicitly stated that he could easily have sentenced Mr. Jimmy to “three years, or even … four years” if not for, among other things, the considerations that I have found him to have erroneously applied.

In other words, it is apparent from the record and the trial judge’s reasons that these errors led to a different sentence than might have been imposed in the absence of those errors. Accordingly, it falls to this Court to determine a fit sentence. C. Determining a fit sentence

[32] Although the identification of an error that had an effect on the sentence permits an appellate court to intervene, this does notmean the sentence must be varied under s. 687(1)(

a) of the Criminal Code. The sentence imposed by a sentencing judge may be affirmed,even in the face of such an error, if the appellate court determines that the original sentence was nonetheless fit (Friesen at para 29). [33] The process of crafting a fit sentence begins with having regard for the fundamental purpose of sentencing set out in s. 718 ofthe Criminal Code and determining the appropriate balance of objectives listed in that section.

The ultimate goal is to impose a justsanction for the offence and the offender before the court. [34] During the hearing of this appeal, the Crown argued that, by virtue of s. 718.04 of the Criminal Code, the sentencing objectivesof denunciation and deterrence must be given primary consideration in fixing Mr. Jimmy’s sentence.

Section 718.04 reads as follows: Objectives — offence against vulnerable person 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personalcircumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives ofdenunciation and deterrence of the conduct that forms the basis of the offence. [35] The Crown contends that this case falls within the purview of s. 718.04 because Mr. Parenteau was unconscious and, thus,“vulnerable because of personal circumstances” when Mr.

Jimmy committed the acts against him that amounted to aggravated assault. [36] I am unaware of any reported decision that has interpreted s. 718.04 in the way the Crown invites the Court to interpret it in thiscase.

A survey of the relevant jurisprudence reveals that, up to this point, courts have viewed s. 718.04 as being aimed at addressing theparticular type of vulnerability experienced by Indigenous women and girls (see, for example, R v Bunn, 2022 MBCA 34 at paras 98–110,79 CR (7th) 351; R v McDonald, 2021 ABCA 262 at para 28; R v Alcorn, 2021 MBCA 101 at para 60, 407 CCC (3d) 395, leave to appealto SCC refused, ; R v C.D., 2021 NUCA 21 at para 39; R c L.P., 2020 QCCA 1239 at paras 78–91, 393 CCC (3d) 1;and R v Nayneecassum, 2022 SKPC 10 at para 62) and not at situations where the victim’s vulnerability comes about only because of theway events unfolded during the commission of the offence at issue.

That said, this is not a question that needs to be resolved in order todecide this appeal because the circumstances of this case call for a focus on deterrence and denunciation in sentencing, regardless ofwhether or not s. 718.04 is invoked.

I mention this issue merely to flag it for another day, when it matters to the outcome of the appeal. [37] In general terms, the case authorities provide that the objectives of denunciation, deterrence and protection of the public shouldbe given primary consideration in sentences for aggravated assault because of the extreme level of violence inherent in the commission ofthat offence: see, for example, Ratt at para 70, R v Sayazie, 2010 SKCA 14 at para 7, 346 Sask R 147 [Sayazie], and Clayton Ruby,Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §23.275.

In this case, the severity of the offence (including the aggravating fact thatthe most severe blows were inflicted while Mr. Parenteau lay defenceless on the floor) and Mr. Jimmy’s history of violent offendingconfirm that those sentencing objectives must receive primary focus. That said, I would add that rehabilitation cannot be ignored as arelevant sentencing objective here, especially in light of s. 718.2(e). [38] Regardless of the appropriate balancing of sentencing objectives, a fit sentence must always satisfy the fundamental principle ofproportionality set out in s. 718.1.

That is to say, the sentence in this case must adequately reflect the gravity of the aggravated assaultoffence committed by Mr. Jimmy and his degree of responsibility in committing it. [39] In R v Yuzicapi, 2011 SKCA 134 at para 28, 377 Sask R 133, this Court said that three main considerations define the gravityof an offence: (

a) its nature and comparative seriousness, (

b) the circumstances of its commission, and (

c) the harm caused by it. TheSupreme Court expressed a similar sentiment in Friesen, stating that proportionality requires sentencing courts to take into account “thewrongfulness and the harmfulness” of the offender’s conduct (at para 75). Wrongfulness and harmfulness are relevant considerations withrespect to both the gravity of the offence and the degree of responsibility of the offender.

Properly taking these factors into accountensures that the proportionality principle serves the fundamental purpose of sentencing, which is to protect society and to contribute torespect for the law and the maintenance of a just, peaceful and safe society by, among other things, holding offenders responsible for theiractions, as well as properly condemning the offence and the harm caused by it: see Friesen at para 75 and R v Nasogaluak, 2010 SCC 6 atpara 42, [2010] 1 SCR 206. [40] The objective gravity of the offence at issue in this case – aggravated assault – is obvious.

In that respect, this Court held asfollows in Ratt: [74] … Aggravated assault is the most serious category of non-lethal, non-sexual assault in the Criminal Code. In order to be guilty ofaggravated assault, one must commit an assault that wounds, maims or disfigures another person. The maximum sentence for the offenceis 14 years imprisonment. All of this places it in the upper echelon of offences, in terms of objective gravity. [41] In Mr. Jimmy’s case, what began as a defensive reaction on his part went far beyond that.

He inflicted a vicious beating, rainingmultiple blows on an unconscious and defenceless victim, causing permanent, debilitating and life-altering injuries in the process. In myview, these circumstances situate the offence towards the high end of the spectrum in terms of its seriousness. [42] As to Mr. Jimmy’s degree of responsibility in committing the offence, it is fair to note, as the trial judge did, that the assaultwas not unprovoked; Mr. Parenteau threw the first punch. However, that fact diminishes Mr.

Jimmy’s responsibility only slightly becausehe continued well beyond the point when it would have been obvious that Mr. Parenteau was in no position to fight back or defendhimself. The fact that Mr. Jimmy was on bail for a separate assault and in breach of various terms of an existing release order also add tothe degree of his responsibility. In short, both the wrongfulness and the harmfulness of Mr.

Jimmy’s conduct in committing this offenceare situated toward the high end of the spectrum. [43] That said, determining an offender’s degree of responsibility requires consideration of not only their conduct in committing theoffence but also their personal circumstances. For Indigenous offenders, s. 718.2(

e) requires that particular attention be paid to thesystemic and background factors that have shaped their personal circumstances, because those factors may have an impact on theoffender’s moral culpability (Ratt at para 73 and J.P. at para 65).

[ 44 ] Mr. Jimmy is a person of Indigenous heritage: a status member of the Whitecap Dakota First Nation. As outlined in the pre- sentence report, the Dakota people have a unique history within the First Nations that are part of what is now Canada. The traditional territory of the Dakota people spanned present international and provincial boundaries, and they struggled historically to gain recognition from both the British Crown and the government of the United States of their right to occupy those territories. They also struggled to gain that recognition from other First Nations within Canada.

Despite all of that, over time, the Whitecap Dakota First Nation has developed into a modern and prosperous First Nation, with thriving businesses and strong public services. It continues to negotiate with the Government of Canada to become a self-governing nation and to retain its customs, culture, language and forms of traditional governance. [ 45 ] It may be difficult to ascertain the extent to which Mr. Jimmy has been affected by this history, as he has spent most of his life living away from his home First Nation in urban settings.

However, the Dakota people have, like all Indigenous people in the broad sense, suffered the ills wrought by the history of colonialism and the legacy of the residential school experience in this country. It is inarguable that these historical factors have played some role in Mr. Jimmy’s arriving at the place in life he now finds himself. [ 46 ] While Mr. Jimmy did not attend residential school, his grandparents did. The tragic legacy of the residential school experience and the intergenerational reach of its effects are well-documented. Mr.

Jimmy’s mother was exposed to the direct effects of residential school, as she watched her parents struggle with addiction, was exposed to domestic violence, and found herself in the foster-care system. When Mr. Jimmy was two years old, his father was killed in a car accident. His mother, unable to come to grips with the tragedy of that event, turned to alcohol to cope. This led to Mr. Jimmy and his siblings spending time in the foster care system, as well. [ 47 ] In addition, the fact that Mr.

Jimmy spent most of his life living in urban centres meant that he grew up dislocated from his community, family and culture and without the sense of place one gains from having a connection to one’s heritage. His residence in urban areas has also led to him experiencing racism in school and other settings. [ 48 ] There is no way of quantifying any of this experience, but one can infer that Mr. Jimmy’s lack of connection to his community and family played some role in the assault he committed against Mr.

Parenteau, as the things he has lived through as an Indigenous person will have shaped his world-view and will have had an effect on how he reacts to situations where he is provoked. As a result, I conclude that his moral culpability must be seen as being somewhat reduced by reason of those factors. [ 49 ]

Section 718.2(

a) provides that “a sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances”. There are few mitigating circumstances in this case. In that regard, Mr. Jimmy’s background and history may be seen as somewhat mitigating. The same may be said of the fact that Mr. Parenteau started the physical confrontation; but, given the nature of his physical provocation as compared to the extent and effect of Mr. Jimmy’s response to it, I consider this only a minor mitigating factor. Mr.

Jimmy’s positive recent employment history and his efforts to address his personal issues through programming may also be seen as mitigating. [ 50 ] There are several aggravating circumstances. I begin with s. 718.2 (iii.1) of the Criminal Code , which says “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health” shall be seen as an aggravating circumstance. Given the nature and extent of Mr. Parenteau’s injuries, this aggravating factor is clearly present and carries substantial weight. [ 51 ] Mr.

Jimmy’s criminal record is also an aggravating factor and, in my view, a significant one. This is his fourth conviction for a violent offence. Two of those offences were committed before the assault on Mr. Parenteau, although he had only been convicted of one of them at that point. He was free on bail in relation to the second assault when he committed the present offence, and he committed a further breaking, entering and assaulting offence after the aggravated assault on Mr. Parenteau, but before he was sentenced. All of this is highly aggravating. [ 52 ] While Mr. Jimmy’s attack on Mr.

Parenteau was not planned, it is still an aggravating factor that he persisted as he did well after the point that Mr. Parenteau was obviously unable to defend himself. [ 53 ]

Section 718.2(

b) embodies the principle of parity. It provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. Parity does not mean uniformity in sentencing. It does not shift the court’s focus away from proportionality, but instead serves to inform the proportionality principle by helping to define what is a proportionate sentence, as the Court discussed in Friesen : [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality . A consistent application of proportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality ( R. v. L.M ., 2008 SCC 31 , [2008] 2 S.C.R. 163, at paras. 36–37 ; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at paras. 78–79 ). [33] In practice, parity gives meaning to proportionality . A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality . [ 54 ] The principle of parity does not detract from the need for sentences to be individualized. Differing personal circumstances between offenders can justify differing sentences for similar offences ( R v Pham , 2013 SCC 15 at para 9 , [2013] 1 SCR 739). [ 55 ] In addition, it is important to bear in mind that parity is also not a matching exercise.

The parity principle is grounded in concepts of fairness, but it is rare that the circumstances of two offences and the offenders who commit them will match perfectly ( R v Klemenz , 2015 SKCA 89 at paras 45–46 , [2016] 1 WWR 234). In applying the parity principle, sentencing judges need to look at more than just whether the nature of the offences and the circumstances of their commission are similar when deciding whether the sentence imposed in another case is a relevant comparator. The personal circumstances of the offenders in like cases are also an important consideration.

A sentence must be individualized to the offender and the offence, within the limits permitted by the principles and purposes laid out in the Criminal Code ( R v Knott , 2012 SCC 42 at para 1 , [2012] 2 SCR 470).

[56] Relevant to the application of the parity principle, this Court has identified the general sentencing range for aggravated assaultas being a term of imprisonment of between two and four years. This general range assumes an offender of previously good character,with no prior criminal record (Ratt at para 81 and Sayazie at para 7). However, not all cases will fit those presumptive circumstances.And, while appellate courts may set sentencing ranges for certain offences, such ranges are “guidelines, not hard and fast rules” (Friesenat para 37).

A fit sentence may achieve parity even if it is above or below an established range or starting point where the circumstancesjustify it. The focus must remain squarely fixed on crafting a proportionate sentence for the offender before the court, for the offencecommitted, in the particular circumstances of the case. [57] Moreover, even where an appellate court has established a starting point sentence or range of sentences for a particular offence,sentencing remains a highly individualized process.

The nature of the offence of aggravated assault underlines this concept because thecircumstances that give rise to a conviction for that offence can encompass a spectrum of moral culpability on the part of the offender, aswell as significant variation in the seriousness of the consequences to the victim.

In that regard, in R v Kravchenko, 2020 MBCA 30, 386CCC (3d) 84, leave to appeal to SCC refused, , Mainella J.A. made the following observations: [52] Regardless of whether or not there is a range or ranges for aggravated assault, there are considerations a sentencing judge must keepin mind, in each case of aggravated assault, when weighing the circumstances of the case in light of the sentencing principles andobjectives set out in sections 718–718.2 of the Code. [53] First … aggravated assault has a spectrum of moral culpability … .

The task of a sentencing judge is to “determine the extent towhich the harm was foreseeable, the risk or likelihood that the offender’s conduct would give rise to the harm, as well as the offender’sstate of mind or state of awareness” (R v Nickel, 2012 ABCA 158 at para 35). Often, the nature of the violence used and the offender’sstate of mind will be telling in this assessment. [54] Second, the concepts of wounding, maiming, disfiguring or endangering life cover a wide variety, and different durations, of harm,unlike manslaughter where the consequence of that offence is clear—death.

The consequences of the assault are central to the section268(1) offence. As Binnie J explained in R v Williams, 2003 SCC 41, “The ‘aggravation’ in aggravated assault thus comes from theconsequences” (at para 45). Therefore, aggravated assault sentences must take into consideration the nature and degree of theconsequences to the victim, both proximate to the occurrence of the offence and in the long term.

In making assessments of consequentialharm, sentencing judges should be careful before making too much of dark analogies comparing and contrasting the harm suffered byvictims in other cases (see R v Kanthasamy, 2007 ONCA 90 at para 5). Sentencing must always remain an individualised process. [58] That said, a review of the appellate-level sentencing jurisprudence in this province reveals that, in the majority of the reportedcases, sentences for aggravated assault fell within the range described in Ratt and Sayazie: that is to say, a term of imprisonment betweentwo and four years.

Sentences in excess of four years have tended to result from cases where one or more of the following significantaggravating features are present: the offence involves the use of a firearm or home invasion, the victim of the offence is an infant or youngchild, the offence results in permanent and disabling injuries to the victim, or the offender has a serious record for violence – see, forexample, Ratt at paras 81–85; Noltcho at para 51; R v Durocher, 2002 SKCA 17, 217 Sask R 88; R v Klassen, 2015 SKCA (SentDig) 32;R v Knife, 2015 SKCA 82, [2015] 12 WWR 469, leave to appeal to SCC refused, ; R v Moberly, 2020 SKCA 63; R vGamble, 2021 SKCA 72, [2021] 12 WWR 67; and R v Omer, 2022 SKCA 147. [59] But there are also a number of cases in which this Court has upheld or imposed sentences of less than two years for aggravatedassault, even where some aggravating features are present: see, for example, R v Ewen, 2000 SKCA 36, 144 CCC (3d) 277; R v C.G.S.,2005 SKCA 65, 269 Sask R 247; and R v Cook, 2013 SKCA (SentDig) 6. [60] Given the circumstances of the offence in this case, and bearing in mind Mr.

Jimmy’s personal circumstances, which includehis criminal record and his Indigenous heritage, I consider Sayazie to be a particularly relevant comparator. In Sayazie, an Indigenousoffender inflicted a prolonged beating on his common law spouse and dragged her out into the cold, clad only in a sweatshirt andunderwear in -39°C temperatures. The victim suffered permanent injuries from frostbite. The offender had no previous record.

This Courtincreased the 18-month sentence imposed by the trial judge to one of three years (less 6 months of pre-sentence custody). [61] I also consider R v Corrigal, 2016 SKCA (SentDig) 3, to be relevant, although perhaps somewhat less so, as it does not appearto have involved an Indigenous offender. In that case, the 30-year-old offender was convicted, after a trial, of one count of aggravatedassault, three counts of assault, and one count of assault causing bodily harm in relation to an incident that occurred during a meleeoutside a bar.

The aggravated assault involved the offender delivering a soccer-style kicking to the head of a woman after he had knockedher unconscious. The woman suffered a brain bleed, which led to long-term injuries, including a lasting speech impediment. The offenderhad taken steps to rehabilitate himself prior sentencing. However, unlike Mr. Jimmy, he had only a minor criminal record, with no priorconvictions for violent offences.

The trial judge imposed a 36-month sentence on the charge of aggravated assault, 6-month concurrentsentences for each of the three charges of assault, and a 9-month consecutive sentence for the charge of assault causing bodily harm. ThisCourt allowed the offender’s appeal, but only to the extent of making the sentence for the assault causing bodily harm concurrent to theremainder of the sentences. The 36-month sentence for aggravated assault was upheld. [62] Of course, in all of this, one cannot lose sight of the principle of restraint.

Section 718.2(

d) states that offenders “should not bedeprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, and, as discussed earlier, s. 718.2(

e) requiressentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances, paying particularattention to the circumstances of Indigenous offenders. In this case, however, when I consider (

a) the gravity of the offence, including themanner in which Mr. Jimmy caused serious, permanent, and life-altering injuries to the victim, and (

b) Mr. Jimmy’s record for violentoffences (both those pre-dating and those post-dating this offence), I am led to conclude that no sanction less restrictive than incarcerationwould be appropriate, even bearing in mind the restorative goals of s. 718.2(

e) and Mr. Jimmy’s post-offence steps towards rehabilitation. [63] Turning back to the fundamental principle of sentencing, the sentence imposed by this Court must be proportionate to thegravity of the offence and the degree of Mr. Jimmy’s responsibility in committing it. As stated earlier, the offence here is one ofsignificant gravity. I find that Mr. Jimmy’s degree of responsibility is very high, albeit somewhat reduced from what it would otherwise beby reason of his background and systemic factors considered in light of s. 718.2(

e) and the dicta in Gladue and Ipeelee. A term ofimprisonment is necessary, and, while it must be one of sufficient length to give proper effect to the objectives of denunciation and

deterrence, and one that achieves parity with sentences imposed in relevant comparator cases, it must also be tempered to account forMr. Jimmy’s unique circumstances as an Indigenous person. [64] Taking all of that into account, I am of the view that the sentence imposed by the trial judge must be set aside. A fit sentencefor Mr. Jimmy, for this crime, is a term of imprisonment of three years. I would substitute that sentence for the sentence imposed by thetrial judge and grant the same reduction of 38 days for pre-sentence custody. This means that, as of the original sentencing date,Mr.

Jimmy’s go-forward sentence is one of 1,057 days. As this is a period of more than two years, the probation order must be deleted. Iwould not disturb the ancillary orders made by the trial judge. IV. CONCLUSION [65] For the foregoing reasons, I would grant the Crown’s application for leave to appeal the sentence and allow the appeal. Thesentence imposed by the trial judge is set aside and replaced with the sentence set out in the preceding paragraph. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Tholl J.A.” Tholl J.A.

Jackson J.A. (in dissent) [66] With much respect for those who hold a contrary view, I would not accede to the Crown’s request to set aside the sentenceimposed and substitute a penitentiary term. I would dismiss the appeal. I have arrived at this conclusion for three reasons. [67] First, the Crown’s submissions do not take into account the whole of the context in which the offence occurred, including thefact that the sentencing judge was also the trial judge who, therefore, must be taken to be familiar with the evidence.

Second, the COVID-19 pandemic contributed to a two-year delay between the date of the offence and the conviction. During that time, Sterling Jimmy madeprogress towards rehabilitation, reducing his risk from high to medium. Gainfully employed, he was living in a stable environment with hissister.

He fell back on one occasion, committing a break and enter and assault, which garnered him a sentence of 87 days, plus one yearprobation; but, given the leniency of the sentence, the judge did not consider this a major impediment to imposing a restorative sentence.Third, and most importantly for the purposes of this dissent, the judge did in fact impose a significant sentence on Mr. Jimmy that willplace him under state supervision for up to almost four years. [68] The context is particularly important in this case because the facts are most peculiar. On the night in question, Mr. Jimmy wasat his aunt’s house.

He and his aunt were drinking a lot. The victim, who is Mr. Sterling’s uncle and brother to the aunt, joined them.After the incident, Mr. Jimmy and his aunt continued drinking, believing the victim had passed out. They did not know he was gravelyinjured. [69] When the victim’s teenage son, L.T., came by sometime later, he too did not think his father was seriously hurt. Some 20minutes after arriving, L.T. and two other teenage cousins, along with Mr. Jimmy, moved the victim to a bed, made sure he had a glass ofwater and opened a window for fresh air. The aunt went to bed. The following morning Mr.

Jimmy was still at the house. L.T. came by tocheck on his dad and that was the first time anyone thought something was wrong. An ambulance was called. [70] The evidence as to what happened came largely as a result of statements Mr. Jimmy made to his cousins. Mr. Jimmy did nottestify, but on the night of the assault he told his cousins what he had done. His cousins testified that Mr. Jimmy said the victim had struckhim in the nose, hard enough to knock him off his chair and into a cupboard. The force of the blow was such that the cupboard door broke.Mr.

Jimmy also told him that he had knocked the victim to the ground and kicked and stomped on him. L.T. testified to that effect. [71] On the night in question, Mr. Jimmy also made a call to another cousin, who was the victim’s daughter. She testified thatMr. Jimmy said he had stomped on her father’s head and he had done so multiple times. This seems to be an unusual thing to tell a cousinabout what you have done to their father, but it must be understood that the call was made when it appears no one thought the victim hadbeen so badly injured. Mr.

Jimmy’s recounting of what had happened was confirmed by the aunt, but she tried to minimize hisinvolvement. In light of the severity of the victim’s injuries, her efforts to exonerate her nephew were not believed. [72] This then is the backdrop to the sentencing decision. The judge had previously ruled out self-defence in his reasons forconviction, but he was fully aware of the context where no one reported the injuries in a timely manner because no one understood howbadly the victim had been hurt. It was not, as the Crown would have us conclude, a case where Mr.

Jimmy had knowingly and deliberatelyleft a severely injured man on the floor. [73] The Crown is highly critical of the sentencing reasons. But, with respect, the judge’s sentencing reasons can and should be readmore favourably. He had heard the witnesses, including the victim, testify. With that in mind, his reasons should be read as properlygiving weight to the context of the aggravated assault including its severity, Mr. Jimmy’s personal situation, the effect of Mr. Jimmy’sactions on the people he had harmed, and the progress Mr.

Jimmy had made in the lengthy interval between the offence and the sentencingfor it. Since any given sentencing judge’s reasons can be appraised in different lights, the standard of review requires us to examine theavailable justifications for them before looking for error. [74] In that regard, it is important to quote directly from R v Friesen, 2020 SCC 9, [2020] 1 SCR 424: [25] Appellate courts must generally defer to sentencing judges’ decisions. The sentencing judge sees and hears all the evidence and thesubmissions in person (Lacasse, [2015 SCC 64] at para. 48; R. v.

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

sentencing judge’s for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit(para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle includean error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

The weighing orbalancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trialjudge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.),at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparentfrom the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error in principle had no impact onthe sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrablyunfit. (Emphasis added) [75] Friesen does not invite intervention or, indeed, grant permission to do so when it is alleged that there has been an error insentencing. Appellate courts can only intervene in certain circumstances. They are reminded they “must generally defer to sentencingjudges’ decisions” unless there is “good reason”.

It must also be remembered that the Supreme Court in Friesen set aside the appealcourt’s decision to intervene and, notwithstanding what might be considered a significant departure from a previously established startingpoint or range, reinstated the trial court’s sentence. [76] In this case, there was an agreed statement of facts. The only issue at trial was whether Mr. Jimmy was entitled to rely on thedefence of self-defence because his uncle had thrown the first punch.

In his written reasons, the judge confirmed that “the complainantthrew the first blow and struck the accused forcing him backwards into the bottom of a kitchen cupboard” (R v Jimmy (6 October 2021)Saskatoon (Sask PC) at para 22). The judge found as follows: In considering

section 34 of the Criminal Code, it’s clear the accused has satisfied the requirements to

section 34(

a) and (b), and thatMr. Jimmy believes, on reasonable grounds, that force was being used against him when he was struck and pushed into the kitchencupboard. The punch he returned to the complainant was committed for the purpose of protecting himself from any further assaults fromthe complainant. [77] The judge then turned to consider s. 34(2). It was in this context that the judge said the following: That leaves for consideration section 34(2): Was the act committed reasonable in the circumstances?

The act we’re now discussing refersto the five or ten kicks that the accused inflicted to the body of the head and complainant -- body and head of the complainant. Thatsection compels the trier of fact to consider several enumerated conditions. Number (

a) the nature of the force or threat. In the instant case it appears the nature of the force or threat was one punch thrown at theaccused, out of the blue, by a drunk or a drug-addled individual who was known to the accused. (

b) The force was clearly imminent and the accused initially responded appropriately by punching the complainant back. Number (

c) the person’s role in the incident. The accused and the complainant were the only two people involved, and the accused couldinitially be excused for punching the complainant when he was initially struck for no apparent reason. (

d) No weapon was used by either the accused or the complainant. So this does not help the accused in his assessment of the developingsituation. (

e) The size, age, gender and physical capabilities of the parties prior to the incident. The accused is approximately ten years younger than[his uncle], and while the complainant is heavier he is not much taller. They are both male. This factor has little relevance to thecircumstances of this case. Subsection (f): the nature, duration and history of any relationship between the incident, including any prior use of force or threat of forceand the nature of the force -- that force or threat.

This fact has little relevance to this case, as there is no evidence presented as to any use ofprior force between these two parties, who are well-known to each other, and, in fact, drinking buddies on the date in question. Subsection (f.1): any history of interaction or communication between the parties to the incident. The parties, on the evidence I heard,were well-known to each other, and there was no evidence to support any history of animosity between the two. Subsection (

g) the nature and proportionality of the person’s response to the use or threat of force. As previously indicated, the initialresponse of the accused of one punch, in response to the complainant’s punch, was, in my opinion, proportional. However, the kicks thatfollowed, whether one, five, or ten, were not proportional. The complainant was, essentially, knocked to the ground. There was noevidence that he was getting up and pursuing any further fight. Subsection (h): whether the act committed was in response to any use or a threat of force that the person knew was lawful.

In my opinion,the threat of force by the complainant was not lawful, so the initial response of the accused was, in fact, legal. Conclusion: In this particular case, in my opinion, the accused had other options. He could have left the complainant on the floor. Hecould have left the building after the first punch from the complainant, and his response. He could have stepped back and left thecomplainant alone and bleeding on the floor. He could have called for help from the RCMP or the local Band office. There is nosuggestion the complainant was armed with any weapon.

The accused is ten years younger than the complainant, and they were known toeach other and drinking together. He was not being threatened by a sober individual armed with a firearm or knife. In my opinion, hisresponse was overwhelmingly inappropriate to the situation, and was an enraged response to a provocative punch by a drunk individual.There was no suggestion that there was any threat or disagreement prior to the random punch, and nothing to suggest the complainant wasintent on delivering any future violence to the accused.

I therefore find the defence of self-defence must fail. There is no air of reality to it. And the force was not reasonable -- force used was notreasonable in the circumstances. The accused is therefore found guilty of aggravated assault. (Emphasis added) [78] Clearly, the judge found Mr.

Jimmy’s actions to be “overwhelmingly inappropriate to the situation” and “an enraged responseto a provocative punch by a drunk individual”; but those statements were made for the purposes of rejecting the defence of self-defence.These reasons also add to the judge’s careful assessment of what the victim had done when he started the altercation. The judge returnedto this in the sentencing hearing, where he stated the victim “has to bear some responsibility too, because he was pretty hammered at thetime it happened”. [79] The pre-sentence report was also important to the judge.

In that regard, I believe the Crown has mis-characterized Mr. Jimmy’slack of reflection about what had happened that night. It is clear from the following passage from the report that Mr. Jimmy does regretwhat happened (at 7): With respect to victims of crime, Sterling suggested they probably feel hurt, and it also hurts the family members of victims. When askedhow the victim of his own offence felt, Sterling stated he probably felt upset. Sterling admitted the victim is an uncle and because of theincident, Sterling is the “black sheep” in the family.

He said prior to the offence taking place, there were no issues with his uncle,however on that night, Sterling said his uncle “snapped” because he thinks everything is against him. Sterling insisted his uncle initiatedthe altercation. During his conversation with this writer, Sterling expressed disappointment that his uncle did not incur any charges inrelation to the incident. Sterling was asked if he thought his current charges were fair, to which he said, “Not really”.

He stated the outcome of the trial was notfair and the charge is “too harsh”. … … Sterling stated if he could go back in time, he would have handled things differently by not engaging with his uncle. To avoid any futureissues, Sterling said he already reduced his alcohol intake, is working full time, and distanced himself from family members. He no longergoes to bars and stays away from negative influences. Sterling added he has also been working on recognizing his triggers to preventfuture violence. [80] The author of the pre-sentence report believed that changes had occurred in Mr.

Jimmy’s life between the date of the offence,which was in November of 2019, and the date of conviction, October 6, 2021. She wrote the following (at 15): Sterling was assessed using the SPRA and it was determined he was medium risk to re-offend generally. He had a previous SPRA from2019, at which time he was assessed as a high risk to reoffend. The reduction in his risk level is due in large part to the progress Sterlinghas made in addressing certain risk factors. This has included maintaining employment, reduction of alcohol use, and attendance in casemanagement with Community Corrections.

Sterling was also an active participant in the SAFE program through Community Correctionswhere he gained greater insight into his risk factors. [81] At the sentencing hearing, the Crown asked for five years of incarceration, but the defence asked for a suspended sentence and,if that were not available, two-years-less-a-day with probation. The Crown justified its request by emphasizing the gravity of the offence,the need for denunciation and deterrence, and Mr. Jimmy’s record.

The defence supported its submission by describing what happened asakin to a bar fight, where everyone knew each other and everyone after the event took sides. In that regard, defence counsel cited R vJohnson (1998), (BC CA), 131 CCC (3d) 274 (BCCA), R v Besaw, 2004 MBCA 196, [2005] 7 WWR 618, and R vBelanger, 2004 SKCA (SentDig) 26.

In Johnson, the court wrote, “Sentences at the lower end of the range tend to be imposed in ‘fight’situations in which the altercation escalates and results in injuries to the victim” (at para 10). [82] The judge rejected the defence’s request for a suspended sentence out of hand, but, in all other respects, he can be taken asaccepting defence counsel’s view of the matter as reflected by the following passage from the reasons for sentence: And -- but it’s not something you set out to do deliberately. You didn’t, sort of, get up that morning and say, I’m going to kick someone,stomp them in the head.

I realize that wasn’t your plan. It wasn’t like you robbed somebody, and in the process of that robbery, a totalinnocent person, you kicked him. This was you guys were drinking together; however it happened, there was a disagreement. Thecomplainant provoked you somewhat. He got up, and I think he threw the first punch, that you reacted. And you reacted -- maybe becauseyou’re younger, maybe because you had more to drink, I don’t know, but you reacted quite violently. And that’s the part that brings you tocourt today. We’re very -- that’s the part that really has got you into trouble today.

If it just had stopped at the -- at the one -- the onesmack, and he smacked you back, you wouldn’t even be here today. It’s the kicking on the ground that brings you to court. That’s why theCrown charged you with aggravated assault; and, quite frankly, in my opinion, that was the only reasonable judgment to render was the ag.-- on the ag. assault was a conviction. (Emphasis added) [83] This quotation reflects not only the judge’s acceptance of defence counsel’s characterization of the matter but also speaks toMr.

Jimmy’s moral culpability having been mitigated by the provocative nature of the victim’s actions: see R v Stone, (SCC), [1999] 2 SCR 290 at para 234, and R v Charles, 2021 SKCA 75 at para 56, [2021] 7 WWR 734. [84] Crown counsel also asks the Court to assign a different weight to Mr. Jimmy’s record, but the judge made a clear finding that itwas not particularly serious: I don’t find your record that serious. We deal with a lot more serious records. You’re a relatively young man. You do have an assault backin 2018, assault causing, for which you got one day, and probation.

Then you had the common assault in 2019, which must have happenedsometime during the course of this offence, which occurred, I think, in November of 2019, if memory serves correct. November 23rd. Sothis was a pretty rough patch for you, those two years. I’m not sure what was going on. I suspect there was too much alcohol being

consumed; but then you had the final B and E to commit an assault in 2020, for which you got 87 days. [85] Objectively speaking, these comments are borne out by Mr. Jimmy’s record, which shows lenient sentences for offences offorce, as the following chart demonstrates: Date, Location Charge Sentence2009-11-18 Calgary ALTA Fail to comply with recognizance Sec 145(3) CC $200 I-D 2 days 2014-12-02 Saskatoon SK Fail to comply with probation order Sec 733.1(1) CC (1 day pre-sentence custody) 2018-11-28 Calgary AB Assault CBH Sec 267(

b) CC 1 day & probation 18 mos (credit for theequivalent of 82 days pre-sentencecustody) & discretionary weaponsprohibition Sec 110 CC for 10 yrs2019-03-28 Calgary AB Fail to comply with recognizance Sec 145(3) CC 1 day (credit for the equivalent of 6 dayspre-sentence custody) 2019-12-13 Saskatoon SK Assault Sec 266 CC Suspended sentence & probation 12 mos 2020-09-18 Calgary AB (1) break enter & commit assault Sec 348(1)(

b) CC (1) 87 days & probation 12 mos (creditfor the equivalent of 33 days pre-sentence custody) & mandatory weaponsprohibition Sec 109 CC (2) fail to comply with recognizance Sec 145(3) CC (2) 87 days & probation 12 mos (creditfor the equivalent of 33 days pre-sentence custody) [86] We have no evidence proving the assaults shown on the record were serious or not. The length of a sentence is neverdetermined by the seriousness of the offence alone. Further, previous judges sentencing Mr. Jimmy could have seen what this judge saw:someone for whom restorative justice is a possibility.

The judge also spoke of the step principle: “I don’t find your record that serious. …Now, to take you from 87 days to Pen time is a pretty big jump. Most judges, including myself, there’s a step principle …”. Viewed in thelight of Mr. Jimmy’s prior sentences, the judge’s comments regarding the step principle are not unreasonable. [87] The judge could have chosen his words with more care, but we must also acknowledge that he delivered oral reasons, followingthe sentencing hearing, which gave the parties an immediate result.

Cast in an expositive light, the judge’s reasons can be taken asdescribing these discrete aspects of the case before him: (

a) a provoked attack; (

b) a disproportionate response to a provoked attack; (

c) an offender with a record, but not a serious one; (

d) an offender who has begun to turn his life around; (

e) a positive pre-sentence report, with a lower risk of recidivism than had been previously assessed; (

f) an offender who has shown he can abide, for the most part, by the terms of a probation order; (

g) a delay of two years in sentencing that permitted (d); and (

h) an Indigenous offender for whom a restorative justice sentence is appropriate. [88] That brings me to the heart of the matter. As noted, the judge imposed a sentence of two years less one day followed by twoyears of probation. On appeal, the Crown submits this Court should impose a penitentiary term. It does so on two bases. [89] First, it submits that s. 718.04 of the Criminal Code applies here (an offence against a vulnerable person). I agree with mycolleagues, and for their reasons, that it does not apply in the circumstances of this case.

Second, the Crown states, “the authorities areclear that the sentencing objectives of denunciation and deterrence require emphasis in aggravated assault cases, especially thoseinvolving the infliction of serious bodily injury”. In support of that proposition, it cites R v Ratt, 2021 SKCA 7 at para 70, leave to appealto SCC refused, , and R v Keshane, 2005 SKCA 18 at paras 24–26, 257 Sask R 161.

Unlike in this appeal, wheredefence counsel raised the issue of the role that a probation order plays in denouncing criminal behaviour, it does not appear that, in eitherof the two decisions referred to, the Court was asked to confront the question. [90] At no point in its submissions does the Crown address the fact that, under the sentence as crafted by this judge, Mr. Jimmy willbe under state supervision for almost four years.

Giving effect to the Crown’s submissions and imposing a penitentiary term would leavethe impression that denunciation and deterrence depend on whether an accused serves penitentiary or probation time. This is not a correctstatement of the law. Deciding where or in what way an offender will serve a sentence is not the only means a court has to denouncecriminal activity.

Further, setting aside the sentence gives no weight to the restorative importance of probation, which the judgeemphasized in this case. [91] As this Court recently noted in R v Hotomanie, 2022 SKCA 119, probation orders are not to be treated as meaningless:

[62] With respect, the Crown’s perception of Mr. Hotomanie’s sentence is mistaken. It is an error to focus solely on the period of incarceration that the judge ordered. While it is true that the custodial sentence is less now than was ordered in Hotomanie 1 [2001 SKCA 65], the judge combined the total period of incarceration with three years of probation. The latter is not meaningless, nor are its terms insignificant. Viewed in its entirety, the sanction chosen by the judge is a five-year submission to the state’s supervision, under conditions that significantly restrict Mr.

Hotomanie’s activities when he is not in custody , combined with a ten-year driving prohibition. Contrary to the Crown’s characterization, this ca

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