R v Mosquito, 2023 SKCA 29

Court of Appeal for Saskatchewan Docket: CACR3454 Citation: R v Mosquito , 2023 SKCA 29 Date: 2023-03-02 Between: His Majesty the King Appellant And Destin Mosquito Respondent Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Leave to appeal granted; Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Kalmakoff On appeal from: CRM 144 of 2020, Saskatoon Appeal heard: March 10, 2022 Counsel: Grace Hession David for the Appellant Blaine Beaven for the Respondent Barrington-Foote J.A. I.

INTRODUCTION [ 1 ] On September 21, 2019, Destin Mosquito, Mohamad Al-Zawahreh, Kevin Nataucappo and two other people forcibly entered a dwelling house on Howell Avenue in Saskatoon for the purpose of committing an assault. Mr. Mosquito was armed with a loaded, sawed-off shotgun. The gun discharged, resulting in the death of Mr. Nataucappo. The shooting was unintentional. [ 2 ] On May 3, 2021, a judge of the Court of Queen’s Bench for Saskatchewan [sentencing judge] accepted Mr. Mosquito’s guilty plea to two charges arising from that home invasion, which were as follows: (

a) breaking, entering and committing the indictable offence of assault with a weapon, contrary to s. 348(1) (

b) of the Criminal Code ; and (

b) committing manslaughter by unlawfully causing the death of Mr. Nataucappo contrary to s. 236 of the Criminal Code . [ 3 ] That same afternoon, the sentencing judge heard the parties’ sentencing submissions and, in a decision that was delivered immediately thereafter, determined that Mr. Mosquito should serve seven years in custody for the manslaughter and five years concurrent for breaking and entering. [ 4 ] The Crown has applied for leave to appeal pursuant to s. 676(1) (

d) of the Criminal Code . It alleges that the sentencing judge committed numerous errors in principle that impacted the sentence and that the sentences imposed are demonstrably unfit. I have concluded that leave should be granted but that the appeal should be dismissed. In my opinion, the sentencing judge committed no errors in principle that impacted the sentence and the sentence is not demonstrably unfit. My reasons for these conclusions follow. II. BACKGROUND [ 5 ] The home invasion which resulted in Mr. Nataucappo’s death was undertaken at the behest of Mr.

Al-Zawahreh, who had been assaulted and forcibly ejected from the Howell Avenue residence earlier that day following an altercation with several people. Mr. Al-Zawahreh related his version of those events to Mr. Mosquito and several other people, with the result that Mr. Mosquito, Mr. Nataucappo and two others decided they would go to the Howell Avenue residence with Mr. Al-Zawahreh to help him retaliate. Several of the five participants armed themselves with weapons. Mr.

Mosquito made the fateful decision to take a loaded sawed-off shotgun despite being subject to an order pursuant to s. 109 of the Criminal Code , which prohibited him from possessing firearms or ammunition. [ 6 ] There were several people present at the Howell Avenue house when the home invasion occurred, including more than one child. Very shortly after Mr. Mosquito and the other intruders entered, a fight broke out between Mr. Al-Zawahreh and one of the occupants. Although it is not clear exactly what occurred in the ensuing melee, it is undisputed that the gun in the possession of Mr. Mosquito discharged.

The shot struck Mr. Nataucappo in the back. Mr. Mosquito and his other associates immediately fled the scene, abandoning Mr. Nataucappo, whose wound would prove to be fatal. [ 7 ] Mr. Mosquito, who was then 21 years old, was arrested and charged shortly after these events occurred and has remained in custody since he was first remanded on September 22, 2019. In April 2020, the Deputy Attorney General for Saskatchewan preferred an indictment pursuant to s. 577 of the Criminal Code against Mr.

Mosquito and three other people, all of whom were charged with the manslaughter and breaking and entering offences described above. Mr. Mosquito was separately charged on the same indictment with two additional offences, those being unlawful possession of a loaded prohibited firearm contrary to s. 95(1) (

a) of the Criminal Code and breaching a s. 109 firearms prohibition order contrary to s. 117.01(1) of the Criminal Code . [ 8 ] Mr. Mosquito’s guilty pleas to the manslaughter and break and enter charges were entered on March 10, 2021. Crown counsel advised the Court that the Crown would apply to stay the two firearms charges on the completion of sentencing but that counsel had

agreed that the evidence relating to those counts would be facts for the purpose of sentencing. The sentencing hearing was then adjournedto May 3, 2021, to enable the preparation of a pre-sentence report with a particular emphasis on Gladue factors, as requested by defencecounsel (see: R v Gladue, (SCC), [1999] 1 SCR 688). [9] On May 3, 2021, after concluding his inquiry pursuant to s. 606 of the Criminal Code, the sentencing judge accepted Mr.Mosquito’s guilty pleas and proceeded with the sentencing hearing. The pre-sentence report had been filed and reviewed in advance by thesentencing judge.

Crown counsel tendered Mr. Mosquito’s criminal record, noting that he had three convictions for crimes of violence,and two convictions for break and enter. She relied heavily on the decision in R v Sand, 2019 SKQB 123 [Sand], which also related to thedeath of one of the perpetrators of a home invasion and had resulted in a nine-year sentence for manslaughter and seven years concurrentfor break and enter with the intent to commit an indictable offence. Crown counsel submitted that Mr. Mosquito should receive the samenine-year sentence.

It was her position that 12 years would have been a fit sentence in light of his high moral culpability and theaggravating factors in play but that a lesser sentence was appropriate in light of the guilty plea, Gladue factors and the effect ofSARS-CoV-2 [Covid] on Mr. Mosquito during the 18 months he spent in remand. [10] At the close of her submissions, Crown counsel advised the sentencing judge that she had been mistaken when she had said thatthe offender in Sand had no criminal record, as he had seven convictions for violent crimes, including robbery, threats and assault causingbodily harm.

In a noteworthy example of professional courtesy, defence counsel had brought this misstep to her attention in anoff-the-record discussion rather than raising it in the course of his submissions. There was no suggestion that Crown counsel hadintentionally attempted to mislead the Court. She apologized for her error, and she referred to that record as “a big factor” affecting hissentence. [11] Defence counsel contended that a sentence in the range of five to seven years would be appropriate. He noted Mr. Mosquito’syouth. He referred to various aggravating and mitigating factors. He emphasized that Mr.

Mosquito had contracted Covid twice while onremand and had been subject to unusual restrictions as a result of the virus, including having been in lockdown for days at a time. He toostressed the significance of Gladue factors. He argued that the Sand decision is readily distinguishable. [12] Before delivering his judgment, the sentencing judge asked Mr. Mosquito if he had anything to say. Mr. Mosquito apologizedto Mr. Nataucappo’s family, stating that he knew what it was like to lose a loved one suddenly to a horrible accident and acknowledgingthat he was the reason for their pain.

He said that he saw this as an opportunity to change his life for his own family and for Mr.Nataucappo. III. THE SENTENCING DECISION [13] The sentencing judge did not adjourn after hearing from defence counsel and Mr. Mosquito, choosing instead to immediatelydeliver his oral decision. He began by confirming that the principles specified in ss. 718, 718.1 and 718.2 of the Criminal Code instructedhim as to the things he must consider when imposing sentence, and that he was mandated to balance the seriousness of the offence againstMr. Mosquito’s personal circumstances.

He noted that manslaughter included a range of circumstances from close to murder to accidentaldeath, and commented that, in his view, this case fell somewhere in the middle of that spectrum. He suggested that the positions of boththe Crown and the defence as to the appropriate sentence had some merit and were grounded in principle and an assessment of the facts.He characterized both as attempts to describe a sentence that would recognize the loss of a life but averred that he must also account forwhat is appropriate for Mr.

Mosquito. [14] The sentencing judge then stated that, if the circumstances had been different, the sentence could have been either higher orlower, ranging between four years and twelve years in custody. As he put it, “my responsibility is to find an appropriate balance in dealingwith all of the things that I have to consider, the circumstances of the offence and also equally particularly the circumstances of Mr.Mosquito”.

He commented that the judgment in Sand was compelling and that there were parallels between that case and this one.However, he also pointed out that there were distinctions and said that he wanted “to talk about the aggravating and the mitigatingcircumstances that counsel have talked about”. [15] The sentencing judge then addressed those circumstances. He stated that “taking a gun to … a gathering where violence couldwell have erupted … [t]hat’s a very, very aggravating circumstance”. He said that he accepted Mr.

Mosquito’s claim that he did not intendto harm anyone but said that taking a loaded firearm was “an extremely serious matter”. He then referred to Crown counsel’s “verytelling” submission that “young people’s thought processes don’t necessarily catch up with the years and the responsibility that should bethere” and remarked that he had to bear in mind that they sometimes think differently than older or more mature people. [16] The sentencing judge then reiterated that it was a significant aggravating circumstance to take a firearm to a group of people“where violence was likely to occur”.

As he put it, the fundamental mistake that Mr. Mosquito made was to go along in support of Mr. Al-Zawahreh. In his view, Mr. Mosquito had learned from this and would have made a different decision today but that it was for him as thesentencing judge to find a resolution that is fair to “the memory of Kevin Nataucappo, fair to society and fair to Mr. Mosquito himself”. [17] The sentencing judge then addressed mitigating circumstances. He commented that there was a “particularly compellingGladue picture of Mr. Mosquito” and that, in light of what he had faced, it would have been hard for Mr.

Mosquito to have made decisions“earlier in [his] life” other than the ones he had made, such as those relating to substance abuse. He referred to the “comprehensive”pre-sentence report and the “Gladue canvass” that it had provided to him, confirming that s. 718.2(

e) required that he take this intoaccount. He noted that this provision is not a formula that calls for “a discount on a sentence, but it is a reflection … of a court trying toassess the road that in this case you, Mr. Mosquito, have walked”. [18] The sentencing judge then dealt with the impact of Covid. He described Mr. Mosquito’s Covid experience as a “significant”issue, noting that he was troubled by the fact that Mr. Mosquito had contracted Covid twice while on remand and that he had, as a result,also suffered from the imposition of more restrictions on his freedom than other inmates. He then said this: ...

Physically you obviously became ill, I mean, it’s not for you and I to discuss today, how ill you became on any given occasion, that’s aprivileged matter for you and your health providers, but I know one thing, that you’ve experienced it twice physically and there has to

have been in your mind, Mr. Mosquito, a dread, an uncertainty of what COVID could perhaps do to you. You’re living under it; it’s acloud over you during those times. Is it something that could be fatal to you? You don’t know that, you don’t know how sick you maybecome in that regard, but you experienced it and to me that is a very significant mitigating factor in the sentence that I’m going to imposeon you today.

So there’s two mitigating factors: one of them is a particularly compelling Gladue picture; secondly, your personal COVID exposure.When you look at the statistics in Canada, the world, the death rate of people suffering from COVID it happens, it happens throughout allof the communities in that regard. And when someone contracts it you don’t know how serious it’s going to be and you’ve contracted ittwice, not once. So again those are two very significant mitigating factors in my view. [19] The sentencing judge next described Mr. Mosquito’s age as a third mitigating factor. He stated that Mr.

Mosquito had not usedthe best judgment, but that he knew he had made mistakes and was trying to learn from them. He identified the guilty pleas as a fourthmitigating factor, commenting that Mr. Mosquito had made a good decision by taking responsibility for what he had done. He commentedthat it demonstrated that Mr.

Mosquito could become a better father and member of society, as did his participation in STR8 UP andministry programs while on remand. [20] At this juncture, the sentencing judge summarized his view as to aggravating and mitigating circumstances, commenting asfollows: So I’ve taken longer than probably I needed to, to talk about aggravating circumstances and, of course, the ultimately aggravatingcircumstances is that a life was lost with the gun, taking the gun with you. But the mitigating circumstances are also the ones that I’vetalked about. Your case is in my view somewhat similar to Mr.

Sand, but it’s quite a bit different in that regard. Your guilty plea, the entryof the guilty plea, your COVID experience, your particularly compelling Gladue picture in that regard suggests to me that Gladue andIpeelee and

Section 718.2 require me to take all of those things into account and provide you with a sentence that is appropriate under thecircumstances. [21] Finally, the sentencing judge stated that, but for the mitigating factors, he would have imposed a sentence equivalent to thatimposed on Mr. Sand. He opined that the situation of Devin Wesaquate, one of the people who was with Mr. Mosquito that night and whohad previously been sentenced, was different, as Mr. Wesaquate had not entered the Howell Avenue residence and accordingly had nocontrol over what happened inside.

He felt that these differences meant that neither the nine-year Sand sentence nor the five-year sentenceimposed on Mr. Wesaquate represented an appropriate yardstick. [22] In the result, the sentencing judge imposed a sentence of seven years, less remand credit at a rate of 1.5 to 1. He explained thatit was his opinion that Covid should be dealt with as a mitigating factor and not by way of enhanced remand credit.

He also made a DNAorder pursuant to s. 487.051 of the Criminal Code and imposed a lifetime firearms, ammunition and explosives prohibition pursuant tos. 109. [23] When the sentencing judge asked counsel if they had anything further, Crown counsel noted that the break, enter and commitconviction had not been dealt with. The sentencing judge imposed a five-year sentence for that conviction, to be served concurrently. IV.

STANDARD OF REVIEW [24] The standard of review on a sentence appeal is that specified in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse],which was affirmed as follows in R v Friesen, 2020 SCC 9, [2020] 1 SCR 424 [Friesen]: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge 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 onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). … [25] In this case, the requirement that the impact on sentence must be “apparent from the trial judge’s decision” is of particularsignificance (Friesen at para 26). There is a thorough and helpful discussion of this requirement – which is stated in disarmingly simpleterms but can be difficult to apply – in R v Williams, 2020 SKCA 108 at paras 27–32 and 49–53, 393 CCC (3d) 325.

As Schwann J.A.there explained: [29] Lacasse describes the phrase impact on sentence in various ways, relying, in large measure, on the approach taken by the QuebecCourt of Appeal in R v Gavin, 2009 QCCA 1 [Gavin], and R v Sidhu, 2009 QCCA 2441 [Sidhu], specifically endorsing the followingpassage from Gavin: “unless the Court finds that the sentence imposed was harsher because of [the alleged error] … this error in principlehad no real effect on the sentence” (at para 35).

Adopting the language in Sidhu, the Court in Lacasse also observed as follows: [46] The Quebec Court of Appeal also adopted this reasoning in R. v. Sidhu, 2009 QCCA 2441. As in Gavin, the trial judge hadconsidered lack of remorse as an aggravating factor (para. 23 ), but the Court of Appeal found that this error was notdeterminative and had had no effect on the sentence (para. 24). Since the sentence the judge imposed would not have been different hadthere been no mistake in that respect (para. 26), the error was not reviewable (para. 55).

Thus, rather than simply substituting its opinionfor that of the trial judge because he had made an error in principle, the Court of Appeal limited itself to considering whether,independently of that error, the sentence was unreasonable or demonstrably unfit. On finding that that was not the case, it decided not tointervene (para. 55). [30] A helpful analysis of the concept of impact on sentence can be found in R v Agin, 2018 BCCA 133 at paras 49–53, 361 CCC (3d)258 [Agin], where the Court of Appeal for British Columbia reviewed the various ways in which the phrase impact on sentence has been

applied in that province. In the end, that Court settled on the following formulation: [52] In our view, the question is whether the error was material in that it had an impact on the sentence imposed and the sentencewould have been different had there been no error. In other words, did the error impact the judge’s analysis in imposing the sentence: R. v.Eakins, 2016 BCCA 194, at para. 21.

This accords with the rationale, outlined at para. 43 of Lacasse, that requiring an impact aims toprevent appellate courts from intervening where an error cannot be said to have impacted the sentence, as to do so would undermine thedeference owed to sentencing judges as well as public policy goals animating appellate review, including finality. … [26] Based on this review of the law, Schwann J.A. held that the error that had been committed “had a direct bearing on the sentenceimposed on Mr. Williams” (at para 33).

She reached that conclusion after closely analyzing the sentencing decision and finding that theerroneous conclusion that Mr.

Williams was a mid-level drug dealer “permeated the entirety of the sentencing judge’s reasoning”, and that“[t]he frequency with which mid-level dealing or analogous statements appear in the decision makes it almost impossible for the sentencenot to have been impacted by this error” (at para 34). [27] I note that there are some appellate decisions which have suggested that an error in principle must have a material impact onthe sentence before appellate intervention is permissible: see, for example, R v Choi, 2022 BCCA 90 at para 8; and R v May, 2018 BCCA391 at para 26.

On a similar note, in R v Orwin, 2017 ONCA 841 at para 52, the court commented that the error must affect the sentence“in something more than just an incidental way”.

With respect, it is my view that language of this kind – by defining materiality in termsof the extent of the impact an error had on sentence – could be understood as a different test than that described in Lacasse and Friesen.The standard of review, as I understand it, already states that an error is material if it impacted the sentence and that, if there is such anerror, then the appellate court must sentence anew. [28] In order to intervene, an appellate court must be convinced not only that the sentencing judge erred but that the reasonsdemonstrate that the error had an impact on sentence.

The second of these requirements represents a complete materiality hurdle that mustbe cleared before an appellate court may intervene. There is no need to add an additional materiality requirement on top of the standardaffirmed in Friesen.

This is particularly so because sentencing reasons often demonstrate that a balance has been struck which takesaccount of multiple factors, but in a fashion that does not clearly disclose how, if an error in principle has occurred, the changed perceptionof a specific factor (or factors) would affect the bottom-line decision as to a fit sentence. [29] By way of example, if an appellate court concludes that an offender would have been sentenced to a lesser term ofimprisonment but for an error of law, but it is unable to say how much less, why would it dismiss the appeal?

Why would it not considerthe sentence afresh? That reconsideration constitutes justice in accordance with the law for the individual offender, which is the lodestarfor both trial and appellate courts. If the appellate court concludes it would have nonetheless imposed the same sentence as the sentencingjudge based on the principles of sentencing and the relevant factors, it is entitled to affirm the fitness of that sentence and to dismiss theappeal under s. 687(1)(

b) of the Criminal Code. [30] As to demonstrable unfitness, being the second basis for appellate intervention, Wagner J. (as he then was) provided thisguidance in Lacasse: [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”:“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and markeddeparture” (R. v.

Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720). All these expressions reflect the veryhigh threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence. [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. ... [31] Another aspect of the process of appellate review bears emphasis in this case; that is, an appellate court must read the reasonsof a trial or sentencing judge in a functional and contextual manner. The test that is applied where the challenge is to the sufficiency ofreasons is instructive.

In R v G.F., 2021 SCC 20, 404 CCC (3d) 1, for example, Karakatsanis J. summarized the law on this point asfollows: [69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge'sreasons when those reasons are alleged to be insufficient: … Appellate courts … must assess whether the reasons, read in context and as awhole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permitseffective appellate review.

As McLachlin C.J. put it in [R v R.E.M., 2008 SCC 51, [2008] 3 SCR 3], “The foundations of the judge’sdecision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trialunfolded”: para. 17.

And as Charron J. stated in [R v Dinardo, 2008 SCC 24, [2008] 1 SCR 788], “the inquiry into the sufficiency of thereasons should be directed at whether the reasons respond to the case’s live issues”: para. 31. [32] In their joint concurring reasons in G.F., Brown and Rowe JJ. elaborated on this principle, commenting as follows: [109] … [A]n appellate reviewer’s role is not discharged by giving trial reasons for judgment a once-over-lightly perusal, but by readingand considering the trial judgment in order to assess whether, in light of the evidence and arguments at trial, it shows that the trial judgediscerned and decided the live issues so as to permit meaningful appellate review ([R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869], atpara. 28; R.E.M., at para. 57). … (Emphasis in original) [33] I would finally note that, but for exceptional circumstances, the Crown is not entitled to put forward a different case on appealthan the one it chose to advance at trial: see, for example, R v Suarez-Noa, 2017 ONCA 627 at paras 30–36, 350 CCC (3d) 267.

This

principle applies equally in the context of a sentence appeal as in a conviction appeal: R v Poon, 2012 SKCA 76, 399 Sask R 89; ClaytonRuby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §4.79. In R v Marks (1994), (NL CA), 91 CCC (3d) 421(NLCA) at 429, the Court said this in the context of a sentence appeal: There is no rule or principle which precludes the Court from considering an appeal in which the Crown takes a position different from thattaken by Crown counsel at the trial level and this is so whether or not there has been a joint submission as to sentence.

However, a courtwill only interfere with such a sentence in very exceptional circumstances and where not to do so would result in an injustice. In AttorneyGeneral of Canada v Roy (1972), CRNS 89 (Que QB), Hugessen J said at p 93: The Crown, like any other litigant, ought not to be heard to repudiate before an appellate court the position taken by its counsel in the trialcourt, except for the gravest possible reasons.

Such reasons might be where the sentence was an illegal one, or where the Crown candemonstrate that its counsel had in some way been misled or finally where it can be shown that the public interest in the orderlyadministration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence. [34] I agree with this reasoning and note, by way of example to the same effect, R v Cromwell, 2021 NSCA 36 at para 68; Baptiste cR, 2021 QCCA 1064 at paras 84–86, 73 CR (7th) 321; and R v H.S., 2014 ONCA 323 at paras 59–62, 308 CCC (3d) 27. V. ISSUES A.

Did the sentencing judge commit errors in principle that affected thesentence? 1. Introduction [35] The Crown alleges that the sentencing judge committed a dizzying array of errors in principle. It submits that he ignored avariety of aggravating factors that defined the gravity of the offences and Mr. Mosquito’s degree of responsibility in committing them. Itcontends that he attached unreasonable weight to facts that did not mitigate the gravity of the crimes or Mr.

Mosquito’s moral culpability.Indeed, it claims that the sentencing judge failed to assess moral culpability at all and that he did not take account of the fact that Mr.Nataucappo’s death was the result of a home invasion. The Crown strongly emphasizes that this was a violent home invasion, of a homethat was known to be occupied, that resulted in a death caused by a prohibited weapon in the possession of an offender who was subject toa prohibition order. [36] In response, Mr. Mosquito asserts that the sentencing judge did not err in principle.

He contends that the sentencing judge wasalive to the arguments before him and considered the factors that should be weighed in assessing his moral culpability. He also cautionsthat the Crown has presented an unfair and slanted view of what occurred in the sentencing hearing. On this note, he says the Crown hasidentified errors that did not occur, misconstrued the submissions of the parties and the way they were approached by the sentencingjudge, and made expansive arguments based on case law that Crown counsel did not refer to in their sentencing submissions. [37] I agree with the substance of Mr.

Mosquito’s position. This was an oral sentencing decision, delivered by the sentencing judgeimmediately after he heard the submissions of counsel, Mr. Mosquito’s comments and the compelling victim impact statements. Althoughthe decision is brief, it is readily understandable when read in the context of the submissions of both parties together with the pre-sentencereport. It is apparent why the sentencing judge failed to specifically mention certain aggravating factors and emphasized the significanceof certain mitigating factors.

In the circumstances, the failure by the sentencing judge to expressly advert to all aggravating factors doesnot signal, let alone establish, a failure to consider them. [38] My reasons for these conclusions follow. 2. Analysis a. Did the sentencing judge err by failing to consider or to give sufficient weight to aggravating factors? [39] To begin, the Crown submits that the sentencing judge reasoned as if there was only one aggravating factor, that being Mr.Mosquito’s decision to take a loaded firearm to an occupied residence in circumstances where violence was likely to occur.

It identifiesseveral other aggravating factors that, in its view, were not considered. It suggests that these included Mr. Mosquito’s criminal record,which disclosed convictions for more than two dozen crimes, among which were two previous robberies and an assault with a weapon. Itnotes that he was awaiting trial on the last of these at the time this manslaughter occurred.

It argues that the sentencing judge failed toattach any weight to these aggravating factors, signifying an error in the proportionality inquiry that impacted the sentence imposed. [40] Similarly, the Crown contends that the sentencing judge failed to consider the firearms prohibition order to which Mr.Mosquito was subject at the time of the offence. It says that this was a highly aggravating factor as to both the gravity of the offence andhis moral culpability, citing R v Omoragbon, 2020 ONCA 336.

In that case, the Ontario Court of Appeal concluded that breach of aweapons prohibition and possession of cocaine for the purpose of trafficking were very serious offences, each of which were very differentdelicts deserving of significant consecutive penitentiary terms. [41] The Crown also argues that the fact that the firearm used by Mr. Mosquito was not simply any firearm but a prohibited weaponwas another highly aggravating factor that was not considered by the sentencing judge.

In this context, it notes that sawed-off firearms areinherently dangerous and are used exclusively by criminals, as there is no legitimate reason to possess them. Indeed, the Crown contendsthat Mr. Mosquito’s decision to simply possess a loaded prohibited firearm without authorization in contravention of a prohibition ordercalled for a “very lengthy penitentiary sentence” in and of itself. It relies on R v Nur, 2015 SCC 15, [2015] 1 SCR 773, for this point,where the Supreme Court of Canada found that a 40-month sentence for unlawful possession of a loaded restricted firearm was fit, despitethe fact that Mr.

Nur was a first-time offender and that there was no evidence that he had used the firearm to commit a crime.

[ 42 ] I would agree that each of these factors was aggravating. However, I am not persuaded that the sentencing judge failed to consider them. Mr. Mosquito’s criminal record was referred to in the pre-sentence report, which specifically adverted to the fact that he had twenty convictions as a youth, including one for robbery and three for breaking and entering. It also said this: In April 2017, Destin was convicted of break and enter with intent and being unlawfully at large and was given a choice to take a 24- month Federal sentence or 18 months Provincial.

Destin states he chose the Federal sentence option based on information he was provided. His early release date was in October 2018. Destin picked up a charge for assault with a weapon just months before he was involved and charged with the index offence, which occurred on September 21, 2019. He was remanded on September 22, 2019 and has remained in custody since that date. On April 3, 2020, he was convicted on the assault charge against his ex - partner. [ 43 ] The sentencing judge was well aware of the contents of the pre-sentence report.

He made that clear in the course of the s. 606 inquiry, commenting as follows: As a -- as a first starting point, I’m sure both of you would agree, I want to thank the author of the presentence report and I have it here on my big screen. The author of this report, this was an extremely well-done report. As you will recall we were concerned about Gladue factors and when you read the report it’s obvious why.

What the author did in preparing this report was, first of all, a detailed presentence report in general terms and then the -- the author very astutely dealt with the Gladue , Ipeelee factors in relation to it. […] But in some fashion, Ms. Kujawa [Crown counsel], if I could ask you to convey to her my strong appreciation for the presentence report and the ambit of it. And it was -- it’s one of the best ones I’ve seen. [ 44 ] Similarly, the sentencing judge confirmed that he had reviewed the brief of law that had been filed by Mr. Mosquito’s counsel.

As in the case of the pre-sentence report, he praised defence counsel, noting that “it wasn’t simply a generic brief, I found that it was a brief very much directed to a representation of Mr. Mosquito”. [ 45 ] Further, Mr. Mosquito’s criminal record was referred to at the sentencing hearing. As noted above, Crown counsel began her submissions by filing a copy of this record and specifically pointing out that it included three convictions for violent crimes, being two robberies and assault with a weapon, and two convictions for break and enter.

Defence counsel also adverted to his client’s criminal record, noting that it revealed that he was “a young man who is clearly involved in criminal activity and … running with the wrong crowd … from an early, early age”. Further, the discussion of the erroneous comparison of the criminal records of Mr. Sand and Mr. Mosquito by Crown counsel flagged this aggravating factor. [ 46 ] It is also important that the sentencing judge said this in his decision, while discussing Mr. Mosquito’s Gladue factors: There is [ sic ] some mitigating circumstances here that -- that I find must be addressed and dealt with.

First of all, I want to say that this is - - there has been provided to me a particularly compelling Gladue picture of Mr. Mosquito. Mr. Mosquito, I mean this very sincerely when I say to you, life hasn’t always been fair to you, it’s been hard on you and you’ve gone through a lot of experiences in your life that no young man your age should have had to have gone through.

But you did and it’s -- it’s difficult to say to you, you shouldn’t have done the things that you’ve done in relation to it, when you walk the walk you walk and live the life you’ve lived some of the decision[s] would have been hard to make otherwise in that regard. And I’m talking about earlier in your life decisions that you’ve made in that regard, substance abuse, things of that nature. [ 47 ] I understand this statement, brief as it is, as confirming that Mr. Mosquito’s criminal history was in the mind of sentencing judge when he made and delivered the sentencing decision.

Once again, the pre-sentence report – the source of the “compelling Gladue picture” – is significant in this context, as it not only described Mr. Mosquito’s already lengthy history of substance use but disclosed that he had admitted that drugs and alcohol had contributed to his past involvement with the criminal justice system.

Indeed, it included a report that he had begun dealing drugs at the age of 13 and had been beaten up by his fellow gang members at the age of 14, as a result of having been robbed in the course of a drug transaction. [ 48 ] I am equally confident that the sentencing judge was aware that Mr. Mosquito was subject to a s. 109 firearms prohibition order and that the firearm he possessed was a prohibited weapon. That order was listed in the criminal record. Crown counsel expressly advised the sentencing judge in the course of her submissions of both of these facts.

She had also told him during the s. 606 inquiry that the two firearms charges against Mr. Mosquito would be stayed, but that the facts relating to them would nonetheless be facts for the purpose of sentencing.

The sentencing judge was accordingly aware that those counts – which, as noted above, were on the same indictment as the manslaughter and break, enter and commit – referred expressly to a sawed-off shotgun that was a prohibited weapon and to a breach of the s. 109 order, as follows: Count 3 On or about the 21st day of September, 2019, at or near Saskatoon, Saskatchewan, did possess a loaded prohibited firearm, to wit: a sawed off shotgun, not being the holder of an authorization or license under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code ; and Count 4 On or about the 21st day of September, 2019, at or near Saskatoon, Saskatchewan, did possess a prohibited firearm while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . [ 49 ] In the result, I am satisfied that the sentencing judge was aware of and took account of these two aggravating factors as well. Further, the fact that he did not expressly list them as such does not signal otherwise, in the circumstances of this case. [ 50 ] My conclusion in this respect is informed in part by the fact that this was an oral decision delivered immediately after the sentencing judge had conducted a careful s. 606 inquiry and counsel had made their submissions, all in the course of a single afternoon session.

The reasoning in R v Bear , 2022 SKCA 7 , is helpful in this context. In Bear , the trial judge, like the sentencing judge in this case, did not adjourn after hearing counsel’s arguments before delivering their oral decision. Justice Schwann commented on the significance of this as follows:

[27] I must also keep in mind that, while it is appropriate to consider the sentencing judge’s reasons in their entirety, the context and the parties’ submissions should also be considered. In that vein, it is not without significance that this was an extemporaneous oral decision rendered immediately following the submissions of counsel and without any break in the proceedings. The sentencing judge knew that the sentence for Mr. Bear was contested and that the Crown’s submission was capped at two years of imprisonment.

As to denunciation and deterrence being the primary objectives in this case, it is noteworthy that Crown counsel had clearly spelled this out for the sentencing judge in her submissions. To repeat, she told the sentencing judge that CL was Mr. Bear’s domestic partner and then followed that point by stating, “which is again an aggravating factor”.

Crown counsel went on to identify the significance this held in fashioning an appropriate sentence: “The Crown also points to the children in the residence, and the vulnerability of the individual who was the victim in this matter. [CL] is an Aboriginal female woman, and -- and that also requires this court to primarily considered denunciation and deterrence ” …. [28] The Crown’s position on the matter at the time of sentencing could not have been clearer.

Given the speed with which the sentencing hearing progressed, I find it hard to believe that the sentencing judge had forgotten Crown counsel’s submissions, was unaware of the applicable law or that he failed to appreciate the significance of intimate partner violence in sentencing Mr. Bear. … (Emphasis in original) [ 51 ] I am essentially of the same mind in this case. The fact that reasons were delivered orally may or may not be of any significance when determining whether they disclose an error.

The issues on appeal do not change, and the same standards of review apply, regardless of whether reasons are delivered orally or in writing and, for that matter, regardless of whether they are reported. Where the issue is the sufficiency of reasons, for example, they must be adequate to serve the purposes described in R v Sheppard , 2002 SCC 26 at para 55 , [2002] 1 SCR 869.

Where the issue is whether the sentencing judge has applied the relevant principles of sentencing, such as the duty to consider aggravating and mitigating factors, the reasons, when read in context and as a whole in light of the live issues in the sentencing, must be sufficient to show that has occurred. Further, the context of an oral decision may vary because some oral reasons are delivered after a lengthy adjournment, are read into the record by the trial judge, and are indistinguishable in their form from written reasons.

However, the fact that reasons were delivered orally and without delay may, depending on the issues in the sentencing and the content of the reasons, be a relevant consideration for the purpose of the functional and contextual analysis described above. [ 52 ] Here, the sentencing decision was pronounced by a judge that had very recently reviewed the well-crafted written submissions of defence counsel and a comprehensive pre-sentence report and had just heard thorough submissions from counsel. He was also familiar with these offences as a result of having sentenced Mr. Wesaquate.

These circumstances can properly be taken into account in the analysis of the sentencing decision, including when considering the Crown’s submission that the sentencing judge failed to take account of all but one aggravating circumstance and, indeed, failed to consider moral culpability at all. [ 53 ] I would finally note that the Crown appears to argue that the length of the sentence imposed on Mr. Mosquito demonstrates, in and of itself, that the sentencing judge erred in principle by failing to take account of the criminal record, prohibition order and the nature of the firearm.

This is demonstrated, for example, by the following passage from its factum: 38. The Crown will demonstrate shortly that the sentences imposed in this case significantly deviated from sentences imposed on very similar offenders with most if not all of the same mitigating personal circumstances as the respondent (ie. youth, Gladue factors, remorse, guilty plea) but who, unlike the respondent, had little or no violent criminal history. An obvious conclusion follows.

The failure of the trial judge to attach any weight to this aggravating factor cannot be explained away as a valid instance of “individualized” sentencing. Rather, it signifies an error in the trial judge’s proportionality inquiry that had an obvious impact on the sentence imposed. … [ 54 ] This reasoning appears to conflate the issue of whether the sentencing judge erred in principle by failing to give these aggravating factors any or sufficient weight (the first Lacasse ground) with the question of whether the sentence was demonstrably unfit (the second Lacasse ground).

An error in principle may or may not impact the sentence. Where there has been an error in principle, the fact that a sentence has been imposed that appears to be outside the usual range may, depending on what is disclosed by the reasons as a whole, be of assistance when deciding if the error has impacted the sentence. However, that does not mean that the imposition of a sentence that is lower than is generally imposed for such an offence can demonstrate, in and of itself, that an error in principle had occurred to begin with.

Reasoning of that kind would present a readily apparent danger of bootstrapping and would tend to erode the important conceptual difference between the two grounds of appeal identified in Lacasse and Friesen . [ 55 ] The proper means of addressing the fact that a sentence is a major deviation from the usual starting point or appears to be outside the usual range is captured in the following statement by Karakatsanis J. (dissenting, but not on this point) in R v Parranto , 2021 SCC 46 , 411 CCC (3d) 1 [ Parranto ], in relation to departure from starting points: [236] … Even though the starting point reflects appellate guidance regarding the gravity of the offence, where there is a significant deviation, appellate review must be conducted in accordance with the ordinary sentencing standard of review.

If, for example, the deviation results from an unreasonably lenient view of the gravity of the offence, or from unreasonably minimizing the offender’s moral blameworthiness, then the sentence will be an unreasonable departure from the proportionality principle and will be demonstrably unfit. If, on the other hand, the deviation stems from heavy but reasonable emphasis on mitigating factors and rehabilitative principles, appellate intervention is not justified. [237] In other words, whether a sentence is demonstrably unfit is a qualitative rather than a quantitative assessment.

What matters is whether the trial judge imposed a proportionate sentence by reasonably appreciating the gravity of the offence and the degree of responsibility of the offender in the specific circumstances of the case: Lacasse , at paras. 58 and 67 ; [ R v Nasogaluak , 2010 SCC 6 , [2010] 1 SCR 206], at para. 44; [ R v L.M. , 2008 SCC 31 , [2008] 2 SCR 163], at para. 36.

If the trial judge has done so then appellate intervention is not justified, regardless of how far the sentence deviates from a range or starting point: Lacasse , at paras. 53 and 67 ; Brown and Martin JJ.’s reasons, at paras. 29-30 and 38. [ 56 ] The Crown also submits that, quite apart from the fact that Mr. Mosquito chose to arm himself with a firearm, it was aggravating that he decided to use the firearm when he entered the Howell Avenue house for the purpose of assaulting the occupants. The Crown bases this argument on submissions as to Mr. Mosquito’s state of mind. It contends that Mr.

Mosquito claimed the break and enter

was accidental and not a premeditated crime. The Crown characterizes that position as “utter nonsense”, and “merely another attempt to deny his high degree of culpability in the offence”. It also says that Mr. Mosquito’s claim that he did not intend to shoot anyone cannot be squared with the undisputed facts, as he must have been prepared to shoot someone if the need arose. It submits that “a person who does not intend to shoot anyone does not arm himself with a loaded sawed-off shotgun before forcibly entering an occupied home” (emphasis in original). Further, it is the Crown’s position that Mr.

Mosquito effectively admitted there was nothing accidental about the infliction of violence after the forcible entry occurred, as that was the sole purpose of the home invasion. [ 57 ] In my view, these submissions effectively misrepresent both Mr. Mosquito’s position in relation to an important issue and the manner in which that issue was addressed by the sentencing judge. Mr. Mosquito did not take the position at any time that the break and enter offence was “accidental”. In the course of his s. 606 inquiry, the sentencing judge was at pains to ensure that Mr.

Mosquito admitted the essential elements of the crimes at issue. Mr. Mosquito’s counsel confirmed that he did. There was no suggestion that the break, enter and assault on the occupants of the home was “accidental”. [ 58 ] Mr. Mosquito took a very different position in relation to the death of Mr. Nataucappo. The pre-sentence report disclosed that Mr. Mosquito said that the incident resulting in Mr. Nataucappo’s death was “entirely accidental” – that is, a shot being fired that caused the death – and that he was “adamant the death of the victim was completely accidental”.

That, of course, is a very different thing than claiming that the break, enter and commit, or, for that matter, his possession of a loaded shotgun, was accidental. [ 59 ] Further, the positions of both parties in relation to Mr. Mosquito’s state of mind as to the use of the firearm were well canvassed and entirely clear. In the course of his submissions to the sentencing judge, Mr. Mosquito’s counsel had this to say: … During that melee, Mr. -- Mr. Mosquito, who had the gun in his hand, it was accidentally discharged. My learned friend and I are -- are in agreement on that .

There was no intention to discharge it or to discharge at anyone in -- in particular. And in the process, tragically, Mr. Nataucappo lost his life and, for that, Mr. Mosquito is extremely remorseful. … (Emphasis added) [ 60 ] Defence counsel reiterated these points shortly thereafter, specifically connecting the dots between his client’s intentions and moral culpability and noting that Mr.

Mosquito and the Crown were on the same page as to his state of mind: The cases also indicate -- that I filed indicate that, and Your Lordship’s well aware of this, that manslaughter, in particular, the sentencing judge must look at the moral culpability or the blameworthiness of the individual that comes before you. And, as I said earlier, this is a situation where this was not premediated. This was not sophisticated. This was not planned. As my learned friend and I both suggest, this was entirely accidental. That’s not to suggest that going to the house with a firearm is -- Mr.

Mosquito is absolved of that, but it certainly wasn’t his intention to -- to shoot anyone, and certainly not Mr. Nataucappo. … This isn’t a situation where multiple shots were fired or, you know, shots were fired in -- in a revenge type of scenario. This was entirely accidental. That’s really important, I would suggest, My Lord. A guilty plea has been entered. He’s accepting responsibility. I see my learned friend’s point in pointing out that there is some -- some ambiguity, if you will, in the presentence report. Having said that, after going through

Section 606 with Mr. Mosquito, as you did, I would suggest that he is accepting complete responsibility for -- his actions. [ 61 ] These submissions accord not only with Mr. Mosquito’s statement to the court prior to sentencing but with the position taken by Crown counsel. During the s. 606 inquiry, the sentencing judge said this: Yeah. And, Mr. Mitchell, I thank you and I want to add for his [i.e., Mr. Mosquito’s] benefit in relation to it, that doesn’t take away from the non-accidental part of it, I mean, that’s -- that’s why this is manslaughter and it isn’t murder. So I recognize that.

And what happened, from what I piece together in relation to it, was that a situation got out of control and in essence the gun, what I will call, largely accidentally discharges. It was -- this was not a matter of intention, as I understand it and I want Mr. Mosquito to understand that, that I understand that. And I know that that’s not what Ms. Kujawa is suggesting. That doesn’t take away from culpability as a result of unlawful act manslaughter, but it does put a certain perspective on it. But what you have done for me is that you’ve alleviated my concern about what Mr.

Mosquito is or isn’t prepared to acknowledge, okay? [ 62 ] When Crown counsel was then asked whether she had any further comment about this, she stated that she did not, that everybody was “on the same page”, and that the Crown “is certainly not alleging that there was an intentional discharge … of the firearm”. She later reiterated that “the Crown is certainly not alleging that there was an intention to kill Kevin Nataucappo.

It was an unfortunate result of this terrible decision made by these individuals at the time”. [ 63 ] Finally, it is entirely clear that the sentencing judge reached the same conclusion as to Mr. Mosquito’s state of mind and that he sentenced Mr. Mosquito on the basis of his admission that he had taken the loaded shotgun to the crime scene and that it was in his possession when the fatal shot was fired. As noted above, he said this in the sentencing decision: The aggravating circumstance is taking a gun to a function where or a gathering where violence could well have erupted.

That’s a very, very aggravating circumstance. I accept without reservation that, Mr. Mosquito, you did not intend to harm anyone, but the taking of the firearm, a loaded firearm, to a gathering where there could be a violent occurrence is … an extremely serious matter. So it’s … an aggravating circumstance, significant one, to take a firearm to that group of people where violence was likely to occur. … The mistake, the fundamental mistake Mr. Mosquito made was to go along and support Mr.

Al-Zawahreh. … [ 64 ] In light of all of this, it is very difficult to understand the Crown’s position on this point in this appeal. To reiterate, the issue was fully and directly addressed at the sentencing hearing. The stance taken there by Crown counsel was clear, was the same as that taken by Mr. Mosquito, and was reflected in the findings of fact made by the sentencing judge.

The sentencing judge took account of the fact that the shooting was unintentional, but that the lack of intention did not take away from the “non-accidental” aspect of this manslaughter, being the intentional act of breaking and entering of an occupied house and committing therein the indictable offence of assault with a

weapon that was a prohibited firearm. All of that accords with his characterization of the circumstances of this offence as falling in themiddle of the spectrum. [65] I see nothing in any of this to suggest that, as the Crown claims, the sentencing judge’s analysis of the fact that the shotgun wasused, and of Mr. Mosquito’s state of mind, reflects error. Nor am I able to conclude, based on the guidance provided by Lacasse andParranto, that he dealt with these facts in assessing the severity of the crime or Mr.

Mosquito’s personal responsibility and moralculpability in a manner that constituted or contributed to an error in the proportionality inquiry. [66] Before leaving this point, I would finally note that having advanced this argument that the intentional choice to actually use thefirearm to assault the occupants of the residence was a separate aggravating factor, the Crown submitted – all in the context of itsallegation that there had been an error in principle – that this aggravating factor warranted a sentence at the high end of the seven to tenyear sentence range, regardless of whether Mr.

Nataucappo had been killed.

In that context, it referred to the fact that the maximumsentence for a dwelling house break and enter is life in prison demonstrates Parliament’s view as to the seriousness of the offence; thats. 348.1 of the Criminal Code provides that breaking and entering into a home which is known to be occupied at the time is aggravating;and that the use of violence while committing a break and enter is also aggravating. [67] Having identified these factors, the Crown reviewed case law which has stressed the serious nature of home invasions and theneed to emphasize denunciation, deterrence and public protection when sentencing for this offence.

Those cases included R v Pelly, 2006SKCA 60, 210 CCC (3d) 416; R v Matwiy, 1996 ABCA 63, 105 CCC (3d) 251; R v Ross (1999), (MB CA), 138 Man R(2d) 75 (CA); and R v A.J.C., 2004 BCCA 268, 186 CCC (3d) 227. [68] These submissions as to the sentencing range for a home invasion are certainly relevant to the Crown’s argument that thesentence was demonstrably unfit. And, to be sure, the failure to consider aggravating factors could result in an error in the proportionalityanalysis and, in turn, in the imposition of an unfit sentence.

However, it would not be appropriate to conclude that the fact the sentencewas seven years, rather than the nine years that the Crown proposed, demonstrates that the sentencing judge erred in principle by failing totake account of Mr. Mosquito’s state of mind. By arguing in this fashion, the Crown once again invites the Court to conflate the twoLacasse grounds. b. Did the sentencing judge unreasonably emphasize mitigating factors? [69] The Crown also submits that the sentencing judge placed an unreasonable emphasis on several mitigating factors.

In substance,I see this aspect of the Crown’s argument – and indeed, the gravamen of the Crown’s submissions as a whole – as an invitation to thisCourt to reweigh and rebalance the relevant factors and to substitute our discretion for that of the sentencing judge. That is not permittedby the standard of review. [70] However, the Crown has identified specific arguments as to various mitigating factors. I will accordingly deal with thesubstance of each of those arguments.

As in relation to the alleged errors as to aggravating factors, I will take account of the submissionsmade by Crown counsel at the sentencing hearing and the live issues in light of the evidence. [71] First, while the Crown agrees that Mr. Mosquito’s guilty pleas are mitigating, it contends that the sentencing judge erred byfailing to take account of contextual considerations that reduce their significance. More specifically, it emphasizes that Mr.

Mosquito didnot plead guilty early, but instead waited 18 months before he accepted responsibility, and then only on the condition that the Crownwould not recommend a sentence that is usually imposed on similar offenders who commit similar crimes. On a related note, the Crownalleges that Mr. Mosquito attempted to avoid taking responsibility by telling the author of the pre-sentence report that he was not actuallyin possession of the firearm when he entered the Howell Avenue house and was not the person who shot Mr. Nataucappo. [72] In my view, Mr.

Mosquito’s evasive explanations to the author of the pre-sentence report as to what occurred when the shotgunwas discharged are of little or no significance for the purpose of determining the mitigating effect of the guilty plea. The fact is that Mr.Mosquito pled guilty to both offences. As I have explained in detail above, he admitted that he took the loaded shotgun into the home andthat it was in his possession when the shooting occurred. He also acknowledged his responsibility to Mr.

Nataucappo’s family when hespoke at the sentencing hearing. [73] Further, the sentencing judge was aware of this portion of the pre-sentence report and that the Crown had contended that itsignalled a failure to accept responsibility, which Crown counsel connected to Mr. Mosquito’s immaturity. That was a key reason for hiscareful s. 606 inquiry as to what Mr. Mosquito was admitting.

I am unable to conclude that he did not consider these facts, or that hecommitted an error within the meaning of the standard of review, when he determined the weight to be assigned to them, in the context ofall relevant factors. [74] Nor do I agree that the sentencing judge erred by according too much weight to Mr. Mosquito’s guilty pleas because thosepleas were juxtaposed with the Crown’s submission that nine years would be a fit sentence. Initially, the Crown took the position on thisappeal that the Court should discount the mitigating effect of the guilty pleas, as they were the result of a plea bargain.

Defence counselvigorously and understandably objected to that proposition.

He correctly pointed out that, even if the sentencing judge could haveconcluded that there was a plea bargain, he could not have known why the bargain had been struck, as those negotiations were privileged.As he also noted, the Crown’s position would tend to undermine the very foundation of plea bargains, which are based on a quid pro quo.Fortunately, Crown counsel abandoned this line of argument at the hearing of the appeal. [75] Further, it is inconsistent for the Crown to have submitted at the sentencing hearing that nine years in custody is a fit sentenceand that the guilty pleas are mitigating and yet, on appeal, contend that the mitigating effect of the guilty pleas should be discountedbecause the Crown took that position as to sentence.

Once again, this was an attempt by the Crown to distance itself from the positionsCrown counsel had taken at the sentencing hearing. In substance, it seeks to make a new argument on appeal. I note that, at the sentencinghearing, Crown counsel addressed the effect of what it considered to be the key mitigating factors as follows: He does have some mitigating factors. He’s got his guilty plea. He also has the fact that this wasn’t his plan, he -- he merely went alongwith other people. Unfortunately, young people are prone to do that sort of thing. And his youth is on his side, as well, the Gladue factors.

I would echo everyone’s comments today about the well-written report and those factors have to be taken into account in this situation. As well, the fact that he has been in custody during a pandemic is also a factor I would suggest has to be considered in this equation. The Crown and defence had factored that in with Mr. Wesaquate. I believe it has to also be factored in this case as well, especially given that Mr. Mosquito has contracted COVID.

Fortunately he -- he survived it, so all of those things come into account. [ 76 ] Crown counsel later summarized her position on the aggravating and mitigating factors in this sentencing as follows: … The Crown has taken into account totality; the Crown has taken into account the guilty plea, the Gladue factors and the COVID factors and are suggesting that he receive the same sentence that Mr. Sand received. I would suggest that that is not out of line, in fact, it’s perfectly in line when you look at the positive and the negative factors that existed in -- in Mr. Sand’s case.

With all due respect to my learned friend, he suggests five to six years. I don’t think we should be putting Mr. Mosquito in the same level as Mr. Wesaquate, who received five years. And I don’t think his -- the fact that he gets out of the car, he participates in a home invasion and he does so with a weapon can only raise this to the level of one-year greater than the one person who remained in the vehicle. So that’s why the Crown takes the position that it does for the nine-year sentence. And takes into all -- into account all of those factors I’ve enumerated.

I think COVID has done a number on all of us and it has to be reflected in sentences at this time, My Lord, because I think that it makes being in custody far more risky, probably far more terrifying and I don’t want it to be suggested that the Crown is not mindful of this kind of factor.

So all of these go into the equation to suggest rather than perhaps a 12-year sentence that nine years would be far more reflective of the mitigating factor of his guilty plea, as I’ve indicated it wasn’t his plan, there’s many Gladue factors going on and the COVID crisis. [ 77 ] The sentencing judge was entitled to rely on these submissions. So too were Mr. Mosquito and his defence counsel. The submissions of counsel are often a key factor in defining the live issues and, thus, in determining whether the reasons given by the sentencing judge disclose errors in principle that affected the sentence.

That is certainly true in this case. [ 78 ] As to the fact that Mr. Mosquito pled guilty 18 months after his initial arrest, it is true that a guilty plea is sometimes accorded greater weight when it occurs earlier in the process. However, the extent that this is so depends on the circumstances of each case. The sentencing judge was well aware that 18 months had passed. I am unable to conclude that he did not take this into account as part of the circumstances as a whole.

It must be kept in mind that the criminal justice system was significantly disrupted in Saskatchewan by Covid protocols at the relevant time; that these were very serious offences; that a direct indictment was preferred 11 months before the pleas were entered; and that pleas were taken and sentences imposed on two of Mr.

Mosquito’s co-accused in the period leading up to his guilty pleas. [ 79 ] Further, even if I had concluded that the sentencing judge did not consider the delay in entering the plea, I would not have found that it would have impacted the sentence. [ 80 ] The Crown also takes the position that the sentencing judge erred in his treatment of Gladue factors. In particular, it submits that the sentencing judge erred in principle by failing to undertake the analysis mandated by R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110; that is, it says that Mr.

Mosquito failed to explain how his unique circumstances impacted his culpability and, indeed, argues that there was no evidence to support any such link. It contends that both the sentencing judge and Mr. Mosquito reasoned that the mere presence of Gladue factors warranted a sentence discount and that this was an error in principle that had an obvious impact on the sentence. [ 81 ] Once again, the Crown has changed its tune and seeks to make a divergent argument in relation to this issue on appeal.

It asks that this Court find that the sentencing judge erred by taking account of Gladue factors despite the submissions by Crown counsel at the sentencing hearing advising that he should do so. The Crown’s sentencing submissions in relation to mitigating factors was very clear. Crown counsel told the sentencing judge that the readily apparent Gladue factors, together with the guilty pleas and the impact of Covid, were the reason that the sentence should be nine years, rather than the twelve it would have sought in the absence of those factors.

Those submissions can only be taken to mean that the Crown agreed with defence counsel that the Gladue and Covid factors were important mitigating factors that meaningfully affected the duration of a fit sentence. The sentencing decision confirms that the sentencing judge was of the same mind. That conclusion was well grounded in the evidence and did not result in the unreasonable exercise of his discretion. Accordingly, given the standard of review, there was no error of the kind identified by the Crown. [ 82 ] Finally, the Crown submits that the sentencing judge erred by treating Covid as a mitigating factor.

Indeed, it contends that this aspect of his reasoning was “unreasonable and unsupported by the evidence” and “does not deserve or warrant deference”. The Crown put the matter this way in its factum: 98. The trial judge reasoned as if the Covid pandemic was a significant mitigating factor. Even if the trial judge was correct not to question [Mr.

Mosquito’s] questionable claim that he was infected with the virus twice within a 60 day period (in December 2020 and again in January 2021) despite what is commonly known about the biological processes relating to natural immunity, it is difficult to see why this was treated as a mitigating factor at all. … 100. More importantly, [Mr.

Mosquito] was in pre-sentence custody because he had a lengthy criminal record, unlawfully killed a man while awaiting trial on a charge of assault with a weapon and refused to accept responsibility for that crime until he was assured he would not be sentenced like similar offenders who commit similar crimes. He was subject to the lock downs on the remand unit and was unable to participate in programs that are available to sentenced offenders by reason of his voluntary criminal acts and the choices he made while awaiting trial.

To reason as if he was entitled to credit for the consequences of those acts and choices was illogical and unreasonable. [ 83 ] I am troubled by many aspects of this submission. It directly contradicts the position taken by Crown counsel at the sentencing hearing. Crown counsel did not suggest Mr. Mosquito’s claim that he had contracted Covid twice was questionable. To the contrary, she specifically said that he had contracted Covid. There is no doubt but that the sentencing judge was entitled to and did accept that as a fact.

The suggestion that this finding did not make sense because of what is “commonly known about the biological processes relating to

natural immunity” is of no assistance to the Crown. Quite apart from the fact that the Crown did not advance that position at thesentencing hearing, this was not a fact in relation to which judicial notice could be taken. [84] Further, Crown counsel submitted at the sentencing hearing that the sentencing judge was not only entitled to but should takethe impact of Covid into account.

To reiterate, she said this: I think COVID has done a number on all of us and it has to be reflected in sentences at this time, My Lord, because I think that it makesbeing in custody far more risky, probably far more terrifying and I don’t want it to be suggested that the Crown is not mindful of this kindof factor. [85] There is nothing ambiguous about this position. [86] All of this being so, the only remaining question in relation to the Covid issue is whether the sentencing judge was entitled totake it into account as a factor that directly impacted the sentence, rather than as remand credit.

At the hearing of this appeal, this Courtinvited counsel to provide supplementary written submissions on this point. Both the Crown and Mr. Mosquito did so, contending thatthere are circumstances in which a sentencing judge should take account of the effect of Covid on the offender when determining aproportionate sentence. [87] I agree.

Decisions from this Court have affirmed that where an offender submits that the impact of Covid should be taken intoaccount when determining a fit sentence, evidence will be required as to the effect of the Covid pandemic on that offender: R v AB, 2021SKCA 119 at paras 40–42; see also, R v Mehari, 2021 SKCA 139 at paras 53–57 (Jackson J.A., in Chambers). Courts of Appeal in otherprovinces have generally agreed with this requirement.

Such evidence could, for example, relate to the impact of protocols on theconditions of incarceration in a particular institution or part thereof, both in general and in relation to the offender at issue. It could alsorelate to the risk of infection or the potential impact of infection for the offender, including their unique vulnerabilities. [88] That is not to suggest that judicial notice could not be taken of some relevant facts, providing that the conditions that must bemet before judicial notice can be taken have been met. However, a cautious approach is in order.

This Court canvassed this issue in O.M.S.v E.J.S., 2023 SKCA 8, which related to judicial notice as to the safety and efficacy of a Covid vaccine in a family law context: [33] Judicial notice “dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute” ([R vFind, 2001 SCC 32, [2001] 1 SCR 863] at para 48; and [David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed(Toronto: Irwin Law, 2020)] at 575).

As such, it applies to two kinds of facts: those that are “(1) so notorious or generally accepted as notto be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readilyaccessible sources of indisputable accuracy” (Find at para 48). These are often referred to as the “Morgan criteria”, from the

article byProfessor E. M. Morgan, “Judicial Notice” (1944) 57 Harv L Rev 269. See also: R v Mabior, 2012 SCC 47 at para 71, [2012] 2 SCR 584;Reference Re Alberta Statutes, (SCC), [1938] SCR 100 at 128; Quebec (Attorney General) v A, 2013 SCC 5 at para 238,[2013] 1 SCR 61; Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34 at para 107, 445 DLR (4th) 179; and [Sidney N.Lederman, Michelle K. Fuerst & Hamish C.

Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed (Toronto:LexisNexis, 2022)] at para 19.25. … [35] Matters that are the proper subject of expert evidence are, by definition, “neither notorious nor capable of immediate and accuratedemonstration” (Find at para 49. See also: [R v J.M., 2021 ONCA 150, 154 OR (3d) 401] at para 35; and Paciocco at 577).

That said,recourse to a scientific treatise or textbook may be permissible to prove a fact that is not notorious, but which is capable of immediate andaccurate demonstration, if the court can be certain that there will be no conflict between different sources of that kind. See: Sopinka at para19.54; and J.M. at para 31.

However, the exception to the general rule that judicial notice cannot be taken of matters that require referenceto an expert’s guidance must be applied only where it is clear that this condition has been met; that is, only where there is well-established,and clearly applicable consensus. … [37] In any event, precedent in matters involving judicial notice must be approached cautiously in a context where there is continuingdevelopment regarding what facts are notorious and which sources are indisputably accurate.

This is nowhere more so the case than withthe information surrounding the Covid-19 pandemic, where important aspects of what “everybody knows” today have come to beperceived, at least by some, as suspect or incorrect tomorrow. [89] This Court has not yet addressed the question of the appropriate legal framework to apply when determining whether thepandemic should impact a sentence. Should the effect of the Covid pandemic be dealt with as a collateral consequence? Should it beconsidered as a mitigating circumstance?

When, if ever, should it be dealt with by providing remand credit in excess of the 1.5:1 ratiospecified in s. 719(3) of the Criminal Code? What of potential Charter remedies? [90] All of these approaches have found support in the case law. The remand credit approach has been repeatedly applied by Ontariocourts, through the provision of “Duncan credits” –so-called because enhanced credit was first awarded for harsh remand conditions inOntario in R v Duncan, 2016 ONCA 754. See, for example: R v Rajmoolie, 2020 ONCA 791, 155 OR (3d) 64; R v Brown, 2020 ONCA196; and R v Green, 2021 ONCA 932.

In R v Marshall, 2021 ONCA 344, Doherty J.A. explored the difference between the statutorycredit that is capped at 1.5:1 by s. 719(3) the Criminal Code and Duncan credits. Additional remand credit would, of course, make senseonly if the offender was adversely affected while in remand, whether as a result of the heightened risk of or actually contracting Covid in acongregate setting or by the impact of protocols intended to mitigate that risk.

Ontario courts have also accepted that the collateralconsequence approach may apply in some circumstances: R v Kanthasamy, 2021 ONCA 32; R v Johnston, 2021 ONCA 331; and R vMorgan, 2020 ONCA 279. [91] There are also many decisions of interest in other provinces. In R v McDonald, 2021 ABCA 262, the Court concluded thatremand credit in excess of the 1.5:1 ratio cannot be granted absent a Charter breach of a sort that would enable the court to consider a

remedy under s. 24(1) of the Charter . In R v St. Constantine , 2022 BCCA 6 , the Court found that the effect of the pandemic on offenders should be addressed as a collateral consequence unique to each offender. R v Demeter , 2022 BCCA 115 , affirmed St. Constantine .

In R v Caribou , 2022 MBCA 95 , Spivak J.A., having canvassed the various approaches that had been taken by other courts, summarized the Manitoba Court of Appeal’s justification for adopting the collateral consequence route as follows: [45] In my view, the preferable method to allow for the impact of the COVID-19 pandemic in determining a fit sentence, one that is doctrinally sound and consistent with sections 719(3) and 719(3.1) of the Code , is to treat this as a collateral consequence, rather than an enhanced credit. I would, therefore, endorse the approach taken in Morgan .

As highlighted in [ R v Suter , 2018 SCC 34 , [2018] 2 SCR 496] and Morgan , the question is whether the collateral consequences are such that a particular sentence would have a more significant impact on an offender because of their circumstances. It is analytically fitting to assess the potential impact of the COVID-19 pandemic on an offender in this context.

In saying this, I reiterate what has been emphasized in the jurisprudence—that collateral consequences cannot be used to reduce a sentence to the point where it is no longer proportionate (see Kolola at para 18; and St Constantine at para 43). [ 92 ] These comments mirror the following statement by the Nunavut Court of Appeal in its per curiam decision in R v Kolola , 2021 NUCA 11 : [18] The COVID-19 pandemic may be considered a consequence which might have a more significant impact on an offender because of his unique and individual circumstances.

It is within a judge's discretion to consider the impact of the COVID-19 pandemic on an offender as part of the sentencing process. Consideration of a collateral consequence may result in a more lenient sentence; however, it cannot be used to reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R v Suter , 2018 SCC 34 at paras 48 , 56. [ 93 ] As a general proposition, I agree with St. Constantine , Caribou and Kolola that the effects of the Covid pandemic are properly dealt with as collateral consequences.

That approach maintains the distinction between mitigating factors, which reduce the gravity of the offence or the moral blameworthiness of the offender, and factors that result from the extraordinary conditions experienced by an offender in serving their sentence or from the exceptional effect on the offender that do not.

This requires that the general and specific impacts of Covid be taken into account in a manner that respects the principles of sentencing, including the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 94 ] Having affirmed the propriety of this approach, it is not necessary to decide whether there are circumstances in which Covid could relate to the circumstances of the offence or the offender in a manner that is either aggravating or mitigating.

Here, the sentencing judge was entitled to take account of the effect of the Covid pandemic on Mr. Mosquito as a collateral consequence. The submissions of counsel on this point were grounded in the facts. Mr. Mosquito had had two bouts of Covid and had been impacted by protocol driven restrictions on his freedom of movement within the institution and the corresponding ability to interact with others. The weight to be given to this factor was, subject to the principles of sentencing as a whole, for the sentencing judge to determine. I am unable to say that he erred in his decision on this poi

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