R v Tinker, 2023 SKCA 54

Court of Appeal for Saskatchewan Docket: CACR3571 Citation: R v Tinker , 2023 SKCA 54 Date: 2023-05-09 Between: His Majesty the King Appellant And Jerry Tinker Respondent Before: Richards C.J.S., Jackson and Drennan JJ.A. Disposition: Leave to appeal sentence granted, sentence appeal dismissed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson On appeal from: Provincial Court (Sask), La Ronge Appeal heard: December 1, 2022 Counsel: Kelly Kaip for the Appellant No one appearing for the Respondent Drennan J.A. I.

INTRODUCTION [ 1 ] On April 21, 2022, Jerry Tinker pled guilty in Provincial Court to resisting arrest, uttering a threat to a peace officer, obstructing a peace officer, and failing to comply with a release order. A Provincial Court judge, noting that Mr. Tinker had already spent the equivalent of seven months in custody prior to being sentenced, imposed a disposition of “time served”. The Crown seeks leave to appeal Mr. Tinker’s sentence pursuant to s. 676(1) (

d) of the Criminal Code , arguing that the sentencing judge failed to properly emphasize sentencing principles contained in s. 718.1 of the Criminal Code , failed to impose a proportionate sentence, misapplied s. 718.2 of the Criminal Code , and imposed a sentence that was demonstrably unfit. [ 2 ] For the reasons that follow, I would grant the Crown leave to appeal and dismiss its sentence appeal. II. BACKGROUND A. The offences [ 3 ] On September 20, 2021, Pinehouse RCMP received a report from a third party indicating that Mr.

Tinker had various weapons in his possession and was planning a shootout with police. [ 4 ] The RCMP obtained a warrant for Mr. Tinker’s arrest and requested the assistance of the Saskatchewan Emergency Response Team. That warrant was executed on September 24, 2021, when the RCMP and the Emergency Response Team descended upon Mr. Tinker’s residence in Pinehouse. [ 5 ] When Mr. Tinker saw officers approaching his residence, he fled on foot. Officers pursued. He was ultimately tasered, arrested and taken into police custody. While in custody, Mr.

Tinker threatened an officer by saying “take off these handcuffs, I’ll knock you the fuck out”. This incident gave rise to the charges of resisting arrest and uttering threats. [ 6 ] On October 25, 2021, Mr. Tinker was released from custody on conditions that included a 24-hour curfew and a provision to not be within a 50-kilometre radius of Pinehouse. [ 7 ] On November 29, 2021, the RCMP learned that Mr. Tinker was in breach of his conditions by being in a dwelling house in Pinehouse. The RCMP obtained a warrant to enter the house. They ultimately located Mr. Tinker hiding in a furnace. Mr.

Tinker was bitten by a police dog and injured during the course of his arrest. He was charged with obstructing a peace officer and breaching his release order. [ 8 ] Mr. Tinker remained in custody following this arrest until his sentencing in April of 2022. He was sentenced on the four counts to which he pled guilty, while other charges were withdrawn by the Crown. B. The sentencing hearing [ 9 ] The Crown and Mr. Tinker’s defence counsel presented opposing submissions as to what the appropriate sentence should be. [ 10 ] Crown counsel argued Mr.

Tinker should be incarcerated for two years followed by one year of probation. She did not propose specific conditions of probation. She informed the Court that Mr. Tinker was listed on the National Flagging System that is intended to track high-risk, violent offenders. In support of that characterization, she reviewed Mr. Tinker’s record and filed a report completed by police. Mr. Tinker’s criminal record included convictions for obstruction, assault peace officer and flight from peace officer in 2003, a

flight from peace officer in 2005, a resist arrest in 2012, and two resist arrests in 2020. Crown counsel also canvassed Mr. Tinker’spersonal background. [11] Defence counsel proposed a sentence of time served, or alternatively, a conditional sentence order followed by probation. Shenoted Mr. Tinker was not charged with any offence arising out of the initial report made to police that he was planning a shootout onSeptember 20, 2021, and that all charges arose from subsequent interactions with police on September 24 and November 29, 2021. Sheadvised the Court that Mr.

Tinker required medical treatment for the dog bite he had suffered on that day and that he had also contractedCOVID-19 twice while on remand awaiting sentencing. [12] Defence counsel argued that significant Gladue and other factors reduced Mr. Tinker’s moral culpability or were mitigatingcircumstances. Mr. Tinker is a Métis individual, who was 38 years of age at the time of sentencing. He is a father and a grandfather. As achild, he grew up in a community struggling with pervasive alcoholism. He was a victim of physical and emotional abuse, and a witness todomestic violence.

He was apprehended from parental care and placed with various extended family members at a young age, onlyreconnecting with his biological parents later in life. At the time of sentencing, Mr. Tinker submitted that he had distanced himself fromthe prior gang affiliations which had led to various entries on his criminal record. While he struggled with substance abuse in the past, hehad maintained sobriety for a period and was open to addictions treatment. [13] Mr. Tinker spoke on his own behalf at the sentencing hearing.

He indicated that he experiences symptoms of post-traumaticstress syndrome when interacting with police and shared a number of difficult experiences he has had with law enforcement. He lodged acomplaint against police in 2020, involving allegations of excessive force and lack of medical attention while in custody. Regarding theoffences before the Court, Mr. Tinker asserted that he had been cooperative with police during arrests and was unnecessarily tasered. Healso explained that in the week he was sentenced, there had been a suicide by hanging of a community member in Pinehouse.

He told thesentencing judge that after that event, he was transported by the RCMP to the court house in a vehicle with the rope used in the suicidenext to him. C. The sentencing decision [14] The sentencing judge began her decision by stating that the goal of a criminal sentence is protection of the public and respectfor the rule of law.

She referenced the specific principles of denunciation and deterrence, rehabilitation, reparation to victims, andpromoting responsibility for offenders, as well as the imposition of sanctions that are proportionate to the gravity of the offence committedand the offender’s degree of responsibility. She noted the need to consider both aggravating and mitigating factors in arriving at a fitsentence. [15] The sentencing judge acknowledged that Mr. Tinker’s offences involved police, and that while this was not presumptivelyaggravating pursuant to the Criminal Code, it was a factor to be considered. She noted that Mr.

Tinker’s record with respect to violenceand property offences was decreasing, while offences involving negative interactions with police continued. She accepted his submissionthat he had distanced himself from his gang affiliation. [16] The sentencing judge then considered Mr. Tinker’s Gladue factors pursuant to s. 718.2(

e) of the Criminal Code and found theydiminished his moral culpability. She accepted that Mr. Tinker had a difficult relationship with the police, and that this relationship had tobe considered in a “historical context”, recognizing that “persons in authority exercised great control over Indigenous people and thiscaused ongoing and long-lasting distress and concern … Police are viewed as part of that group that enforced control”. She acknowledgedthe recent suicide in Pinehouse and Mr. Tinker’s transportation by police to court along with the rope utilized in the suicide.

In doing so,she noted “we don’t need to harken back to any Gladue factors in the past. We certainly should and must, but they’re present in oureveryday and they impact us in the courtroom and for Mr. Tinker the impact of colonialism has been very evident”. [17] The sentencing judge also considered that: (

a) Mr. Tinker had pled guilty; (

b) he had spent time on remand where he had twicecontracted COVID-19; and (

c) many of the charges with which he was originally charged had been withdrawn. She imposed a “timeserved” disposition, noting that probation was not necessary as the custodial disposition met the principles of sentencing. At the time ofthe sentencing, Mr. Tinker had already served the equivalent of a seven-month sentence. III. STANDARD OF REVIEW [18] This Court may only intervene in Mr.

Tinker’s sentence if the sentencing judge committed an error in principle that had animpact on the sentence or if the sentence is demonstrably unfit (R v Friesen, 2020 SCC 9 at para 26, [2020] 1 SCR 424 [Friesen]; and R vLacasse, 2015 SCC 64 at para 11, [2015] 3 SCR 1089 [Lacasse]). [19] An error in principle includes an error of law, a failure to consider a relevant factor, or an erroneous consideration ofaggravating or mitigating factors (Friesen at para 26; R v Jimmy, 2023 SKCA 28 at para 11 [Jimmy]).

An error in principle cannot bederived from the fact that a judge did not impose a sentence that is “long enough” (R v Charles, 2021 SKCA 75 at para 64, [2021] 7WWR 734 [Charles]).

A demonstrably unfit sentence is one that is clearly or manifestly excessive or inadequate, or one that represents asubstantial and marked departure from what would be a fit sentence (Jimmy at para 12; Friesen at para 26; and Lacasse at para 52). [20] In reviewing a sentencing disposition, an appellate court cannot intervene “merely because it would have weighed relevantsentencing objectives, principles, or factors differently than the sentencing judge” (Jimmy at para 11, citing R v McKnight (1999), (ON CA), 135 CCC (3d) 41 (Ont CA); R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak]).

If there is no error inprinciple, an appellate court may only intervene if the sentence imposed is demonstrably unfit. [21] With this backdrop in mind, I now turn to the arguments raised by the Crown on its sentence appeal. IV. ANALYSIS

A. Did the sentencing judge fail to apply sentencing principles? [ 22 ] The Crown asserts that the sentencing judge ignored the purpose and objectives of sentencing set out in s. 718 of the Criminal Code . In particular, the Crown argues the sentence did not reflect the gravity of the offences and Mr. Tinker’s degree of responsibility given his “anti-police history”, nor did it provide a rehabilitative measure through a probation order.

The thrust of the argument is that the sentencing judge underemphasized the objectives of denunciation, deterrence, and rehabilitation. [ 23 ] With respect, I find no merit in the Crown’s submission. I say this for the following reasons. [ 24 ] First, the sentencing judge not only articulated but also applied the relevant sentencing principles and objectives.

She referred to s. 718 of the Criminal Code ’s provision that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. She specifically mentioned the objectives of denunciation, deterrence, rehabilitation of offenders, provision of reparations to victims and communities, and promotion of responsibility in offenders. These considerations permeated her reasons for sentence.

She further acknowledged that she was required to consider both aggravating and mitigating factors, and the principle of proportionality. [ 25 ] Moving to the application of these principles, the sentencing judge appropriately considered that the offences involved interactions with police and that Mr. Tinker had a continuing record for similar offences. She was also correct to consider as mitigating changes in his criminal offending, his contracting of COVID-19 in custody, and his distancing from his gang ties.

In conducting a proportionality analysis, she properly considered the nature of the offences, and found that Mr. Tinker’s difficult relationship with police and interwoven Gladue factors affected his moral culpability. Throughout, the sentencing judge emphasized the specific sentencing principles counsel had impressed upon her in submissions.

In doing so, she was entitled to determine which sentencing objectives merited the most weight given the individualized nature of the sentencing process ( Nasogaluak ; R v Aalbers , 2022 SKCA 105 at para 20 ). [ 26 ] To the extent that the sentencing judge’s reasons did not expressly enunciate a detailed weighing of each of the different sentencing objectives and principles, I note that a “judge is not required to set out each and every argument made by the parties, nor articulate every applicable legal principle” ( R v Bear (J.) , 2022 SKCA 7 at para 30 ).

This was an oral decision made in a busy Provincial Court point, after a contested sentencing hearing, involving an in-custody accused, where time was of the essence. The practical realities that such a court faces are well recognized. An appellate court on review should not impose an undue burden on a sentencing judge to “slavishly state the law” (R v Ahenakew , 2001 SKCA 71 at para 10 , [2001] 9 WWR 521).

The reasons here, though brief, were reflective of a thoughtful understanding by the sentencing judge of the relevant legal framework and the submissions of the parties. [ 27 ] The second reason that the Crown’s argument on this point fails is that contrary to its submissions, the sentencing judge did emphasize denunciation and deterrence as paramount sentencing objectives in Mr. Tinker’s case. She did so with a full understanding of his record for offences involving police. She repeatedly referenced and sought to achieve those principles throughout her reasons.

She determined that a custodial sentence was necessary to denounce Mr. Tinker’s conduct, but that his serving of the equivalent of seven months in custody met that objective. The sentencing judge specifically found that given the offences and Mr. Tinker’s moral culpability, the “time served” disposition was “significant” and met “all of the sentencing principles”. [ 28 ] Third and finally, I do not accept the Crown’s submission that the sentence imposed ignored the objective of rehabilitation.

To begin, Crown counsel on appeal suggested probation conditions of personal counselling and an addictions assessment should have been imposed. These conditions were not proposed by the Crown to the sentencing judge. As well, while Mr. Tinker has had historic issues with substances, there was no indication that the offences here were the product of substance misuse. Further, Mr. Tinker was still on a probation order from a prior disposition in 2020 at the time of sentencing. [ 29 ] It must be kept in mind that probation is not a meaningless aspect of a sentence, simply because it is non-custodial.

It authorizes ongoing state supervision and intervention into an offender’s life (see R v Hotomanie , 2022 SKCA 119 at para 62 ; Jimmy , Jackson J.A. dissenting but not on this point, at para 91). As probation conditions “can represent serious incursions on liberty and impediments to returning to normal life”, courts must exercise caution in their imposition ( R v Reimer , 2020 BCCA 102 at para 77 , 386 CCC (3d) 341). Further, it is the content of a probation order, rather than the imposition of probation in and of itself, that gives rehabilitative meaning to a sentence.

Probation conditions must be reasonable and “will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community” ( R v Hardenstine , 2008 BCCA 474 at para 7 , 238 CCC (3d) 385; R v Shoker , 2006 SCC 44 at para 13 , [2006] 2 SCR 399). [ 30 ] In Mr. Tinker’s case, and in keeping with the above authorities, the sentencing judge considered the parties’ submissions and found that probation was unnecessary to achieve the objective of rehabilitation in this case.

She was entitled to do that in these circumstances. Her determination in that regard attracts deference. In my view and in any event, the probation conditions suggested by the Crown on appeal would not serve any clear or pressing rehabilitative purpose and are disconnected from both the offences and Mr. Tinker’s related circumstances. [ 31 ] For these reasons, I reject the Crown’s argument that the sentencing judge failed to consider and apply the s. 718.2 sentencing principles. B.

Did the sentencing judge err in her proportionality analysis? [ 32 ] The Crown argues the sentencing judge did not impose a proportionate sentence, given the seriousness of the offences and Mr. Tinker’s high moral culpability. In an argument overlapping with another aspect of its appeal, the Crown submits that the sentencing judge allowed her Gladue assessment to subvert proportionality and to “penalize” the police victims. [ 33 ] Proportionality is the cardinal principle in sentencing.

Specifically, in Lacasse at paragraph 12 , the Court stated “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender”.

[34] In R v Ratt, 2021 SKCA 7 [Ratt], the Court discussed the considerations bearing upon the gravity of an offence, and anoffender’s degree of responsibility: [72] In R v Yuzicapi, 2011 SKCA 134, 377 Sask. R. 133, this Court identified three important considerations in determining the gravityof the offence: (

i) the nature and comparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) the harmcaused by it. The Supreme Court expressed a similar sentiment in Friesen, instructing that when applying the proportionality principle,courts need to take into account the wrongfulness and the harmfulness of the offender’s conduct. Wrongfulness and harmfulness arerelevant considerations with respect to both the gravity of the offence and the degree of responsibility of the offender.

Takingwrongfulness and harmfulness into account ensures that the proportionality principle serves its function of holding offenders responsiblefor their actions, as well as properly condemning the offence and the harm caused by it (Friesen, at para 75; see also Nasogaluak, at para42). [73] There is also a more nuanced element to the determination of an offender’s degree of responsibility, because the concept ofresponsibility cannot be completely separated from the offender’s personal circumstances.

The concept of responsibility takes intoaccount such considerations as the level of mens rea in the offence definition, the offender’s history and background, his or her mentalcapacity, and the motive or justification for committing the offence (see, for example, R v Gejdos, 2017 ABCA 227 at paras 39–40, [2017]12 WWR 63). In the case of Indigenous offenders, s. 718.2(

e) requires particular attention to the systemic and background factors thathave shaped the offender’s personal circumstances, because those factors may have an impact on the offender’s moral culpability (R vJ.P., 2020 SKCA 52 at para 65, 62 CR (7th) 328 [J.P.]). (Emphasis added) [35] The sentencing judge began her decision by articulating the proportionality analysis, including her consideration of the gravityof the offences and Mr. Tinker’s level of responsibility.

Consistent with the analysis in Ratt, she clearly understood the seriousness of theoffences involving the police, the circumstances around their commission, and the associated impact on the victims and the administrationof justice, as well as the fact that Mr. Tinker had a record for similar offences. She then properly considered Mr. Tinker’s culpability andconducted a s. 718.2(

e) analysis. [36] The Crown suggests that the reasoning of the sentencing judge “penalized” the police for their historic role in colonialism,thereby absolving Mr. Tinker of his offences. Respectfully, a plain reading of the sentencing decision discloses no such improperrationale. Mr. Tinker’s sentencing submissions focused on the unique circumstances of these offences, his difficult history with police,and his moral culpability.

That culpability was properly viewed through a Gladue lens, as the sentencing judge was obliged to address“circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue” (R v Chanalquay, 2015SKCA 141 at para 52, [2016] 4 WWR 242 [Chanalquay]). She considered not only Mr. Tinker’s traditional Gladue factors, but theconnection of those factors to his relationship with police, and the role of law enforcement in colonialism. In this regard, the sentencingjudge noted the stark example of Mr.

Tinker’s transport by police to court alongside implements used in a suicide – which can only bedescribed as a highly disturbing occurrence, illustrative and confirmatory of Mr. Tinker’s broader Gladue submissions. This was not apunishment of the police but rather, a finding by the sentencing judge that played a role in her s. 718.2(

e) analysis, as will be lateraddressed. [37] In sum, I find no error in the proportionality analysis by the sentencing judge. C. Did the sentencing judge fail to properly apply s. 718.2 of the CriminalCode? [38] Under this ground of appeal, the Crown asserts three errors by the sentencing judge: (

a) that her failure to apply the stepprinciple offended the parity principle; (

b) that she erroneously considered Mr. Tinker’s injury during his arrest as mitigating; and (

c) thatshe erred in the application of s. 718.2(e). 1. Parity and application of the step principle [39] The Crown submits that Mr. Tinker received a significant sentence in 2020 for two convictions for resisting arrest and that thejump or step principle required that Mr. Tinker receive a lengthier sentence for the offences at issue here. Its principal argument is that thesentencing judge’s failure to apply the step principle offended the principle of parity. [40] With respect, I reject the Crown’s arguments in this regard for the following reasons. [41] First, the Crown’s complaint here is not appropriately grounded in parity. The parity principle enshrined in s. 718.2(

b) of theCriminal Code states that a sentence “should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances”. Parity is an expression of proportionality, as a “consistent application of proportionality will lead to parity” (Rattat para 78; Friesen at paras 32–33). Here, the Crown argues that the sentencing judge erred by not imposing a more significant sentenceon Mr.

Tinker in 2022 than he had received in 2020 – not that his sentence was disparate from similar offenders sentenced for similaroffences. [42] Second, there is no obvious or automatic correlation between the application of the step principle and parity. The step principleis one of “restraint [applied] when an accused is sentenced on subsequent occasions for offences of the same severity” (R v Brick, 2019ABCA 351 at para 12). It contemplates “sentences for a repeat offender should increase gradually, rather than by large leaps” (R v E.O.(2003), (ON CA), 169 OAC 110 (CA) at para 15).

It acts to mitigate, rather than aggravate, sentence – particularly toensure an offender is not being re-punished for past offences (R v Muyser, 2009 ABCA 116 at para 8, 457 AR 216 [Muyser]; R v Andrade,2010 NBCA 62 at para 20, 260 CCC (3d) 353 [Andrade]). [43] Third, taking the Crown’s argument to be more simply that the sentencing judge erred in not applying the step principle, I seeno error in her declining to do so. She was aware that Mr. Tinker was convicted in 2020 of two counts of resist arrest, along with

possession of a weapon for a dangerous purpose, mischief, failure to attend court and two breaches of a release order. He received 15months’ custody on the weapons charge and 6 months concurrent on each count of resist arrest, plus probation. The matters before thesentencing judge included stand alone offences involving police (resisting arrest, obstruction, and uttering a threat), and a breach ofrelease order.

A careful reading of her reasons reveals that the sentencing judge was aware of the 2020 disposition but distinguished suchfrom the 2021 offences which involved a less aggravating set of facts. [44] Fourth, the sentencing judge properly applied sentencing principles and conducted a proportionality analysis to arrive at Mr.Tinker’s sentence. She was not obliged during this exercise to apply the step principle.

The step and proportionality principles areinterrelated, and where they diverge, the step principle does not trump proportionality (R v Blair, 2005 ABCA 414 at para 10, 380 AR383; R v Calliou, 2019 ABCA 365 at para 8, 48 MVR (7th) 4; R v McBain, 2012 ABCA 104 at para 4). As such, it is “not intended tocreate precise formulas of incremental increasing jail time as, within that principle, is found discretionary judgment for the circumstancesof each case” (R v McDonald, 2006 ABCA 289 at para 9). [45] Finally, the Crown’s submission ignores that the step principle is primarily one of restraint.

Much was made during argumentregarding the need for a more punitive sentence given the seriousness of the offences Mr. Tinker committed on police in 2020. Withrespect, acceding to this argument would result in the type of mischief that Muyser and Andrade caution against – the re-punishment ofMr. Tinker for prior offences. The authorities are clear that the step principle does not result in automatic incremental sentence increasesfor recidivism. Each sentencing exercise must be individualized. The sentencing judge understood this and exercised her discretionappropriately. I see no error in her reasoning. 2.

Considering Mr. Tinker’s injury during arrest as mitigating [46] The Crown also argues that the sentencing judge erred in considering Mr. Tinker’s injuries during the course of his arrest as amitigating factor. In her reasons, however, the sentencing judge did not specifically mention Mr. Tinker’s injuries. I am not prepared toassume that the fact Mr. Tinker was injured during his arrest somehow impacted the sentencing disposition. 3. Application of s. 718.2(

e) of the Criminal Code [47] Overlapping with its arguments on proportionality, the Crown submits that the sentencing judge erred in her application of s.718.2(

e) of the Criminal Code by allowing her Gladue analysis to trump other sentencing considerations. [48]

Section 718.2(e), and the Gladue analysis it mandates, does not displace other sentencing considerations (R v Whitehead, 2016SKCA 165 at para 40, 344 CCC (3d) 1 [Whitehead]), but directs the court to consider, firstly, the systematic and background factorsleading an Indigenous offender to court and secondly, the appropriate sentencing disposition having regard to, among other relevantconsiderations, the offender’s Indigenous background (Chanalquay at para 34 citing R v Gladue, (SCC), [1999] 1 SCR688 at para 66 [Gladue]).

In other words, the court must determine the extent to which an Indigenous offender’s unique circumstancebears upon moral culpability and how the relevant sentencing objectives may be met other than through a term of imprisonment (R v Bear(K.), 2022 SKCA 69 at paras 107–108 [Bear (K.)]). [49] The court must be cognizant of the overrepresentation of Indigenous persons in Canadian jails and vigilantly considerrestorative sanctions (Chanalquay at paras 38–42).

The “ultimate sentencing objective is clear: considering all of the relevant sentencingprinciples, including s. 718.2(e), what is a fit sentence for the offender given his or her circumstances, the nature of the crime, the situationof the victim, and the interests of the community?” (Chanalquay at para 42, citing Gladue at para 75). [50] Contrary to the Crown’s submissions, the sentencing judge appropriately made Gladue findings and contextualized suchalongside other sentencing principles, having regard for the nature of the crime, the situation of the police victims, and the interests of thecommunity.

Those specific Gladue findings bearing on moral culpability included Mr. Tinker’s difficult childhood, exposure to violence,familial dislocation, and his own struggles with substances. The sentencing judge took note of the larger colonial experience and lawenforcement’s role in the same, when considering Mr. Tinker’s difficult relationship with police. She then went on to consider appropriatesanctions, consistent with the analysis in Chanalquay and Bear (K.) finding a time served disposition met the relevant sentencingobjectives. This is not a circumstance in which the sentencing judge relied on s. 718.2(

e) to the exclusion of other sentencing factors,resulting in reviewable error (Whitehead at para 2). The sentencing judge remained focused on the macro sentencing exercise, applying s.718.2(

e) principles within it. [51] As part of its submissions on this point, the Crown suggests that the sentencing judge erroneously considered Mr. Tinker’sdifficult relationship with police and the role of law enforcement in colonialism in her s. 718.2(

e) analysis. With respect, the sentencingjudge had the ability to take judicial notice of “broad systematic and background factors affecting Aboriginal people generally”, alongwith the case-specific background factors for Mr. Tinker presented at the sentencing hearing (Chanalquay at para 34, citing Gladue atpara 93). As previously noted, she considered Mr. Tinker’s difficult relationship with police, its connection to his Gladue submissions, andits affect on his moral culpability.

The sentencing judge went on to consider this factor properly in the proportionality analysis, consistentwith the direction in R v J.P., 2020 SKCA 52 at para 63, 62 CR (7th) 328, that “systemic and background factors” and their impact on“moral blameworthiness be put into the balance when determining the period of incarceration”. [52] I note that the sentencing judge’s Gladue analysis and related findings affecting moral culpability are entitled to deferencegiven the “‘specialized discretion’ Parliament has reposed in the sentencing court under the Criminal Code” (Whitehead at para 74).

On areview of the whole of her reasons, the sentencing judge’s s. 718.2(

e) analysis discloses no error of principle. D. Was the sentence imposed demonstrably unfit? [53] In something of a reprise of its other arguments, the Crown asserts Mr. Tinker’s sentence was demonstrably unfit as it did notreflect his moral blameworthiness for the offences, did not deter or denounce the criminal conduct, did not achieve parity, and did notadequately reflect Mr. Tinker’s criminal history.

[ 54 ] This Court in R v L.T.N. , 2021 SKCA 73 , summarized the significant threshold the Crown must meet to demonstrate that a sentence is demonstrably unfit: [46] If the sentencing judge did not err in principle, or if an error in principle had no impact on the sentence, appellate intervention will be justified only if the sentence is demonstrably unfit ( Friesen at para 26 ). The threshold for intervention on that basis is very high.

The phrase “demonstrably unfit” has been equated with expressions such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” ( Lacasse at para 52 ).

An appellate court cannot find a sentence to be demonstrably unfit just because it would have weighed the relevant sentencing factors differently than the trial judge did ( Lacasse at para 49 ; R v Burke , 2016 SKCA 100 at para 2 , 484 Sask R 224), or because it would have arrived at a different number ( R v Johnson , 2021 SKCA 17 at para 23 ). [ 55 ] With respect, the Crown has failed to demonstrate that Mr. Tinker’s sentence is clearly unreasonable or representative of a substantial or marked departure. The fact that Mr.

Tinker’s sentence might appear lenient to the Crown does not automatically mean it is a demonstrably unfit sentence. As noted by Jackson J.A. in Charles , the proper application of Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433, requires appellate courts reviewing “ a seemingly lenient sentence or a sentence outside of the range” to remain cognizant of s. 718.2(e)’s focus on “reducing overreliance on incarceration”: [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 added) [ 56 ] A thorough review of the facts and the sentencing judge’s findings regarding Mr. Tinker’s degree of moral culpability establishes that the seven-month custodial sentence is not clearly unreasonable or clearly inadequate.

The sentence imposed is within the range for such offences and bears none of the hallmarks of a demonstrably unfit disposition. V. CONCLUSION [ 57 ] I would grant the Crown leave to appeal sentence and dismiss its appeal. “Drennan J.A.” Drennan J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A.