R v Napope, 2019 SKPC 23

The nature of a breach by the accused of a s 810.2 recognizance does not put the public at risk. It is the Court’s view that that his release back into the community is important if he is to make any progress on the restorative path as contemplated by Ipeelee and Gladue.

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The accused pled guilty to one breach of a recognizance issued under s 810.2, contrary to s 811 of the Criminal Code. The Crown sought a 15 month jail sentence minus his remand at enhanced credit from the time of his arrest. Defence sought a two month jail sentence minus his remand at enhanced credit. The accused is sentenced to time served of 44 days actual jail time but with credit for 66 days at enhanced credit.

In this matter, the accused was released on an 18 month s 810.2 recognizance and was required to register to and report in person with Police Services and to his Probation Officer. The accused had ongoing difficulties with reporting in a timely manner which compelled the Probation Officer to submit a breach. The accused was residing with his mother at that time and been experiencing serious medical issues because of long-standing addictions issues. He was not intoxicated, he committed no substantive offence and did not remove himself from supervision. His health concerns may have impacted his ability to get to his appointments and attend programming, however, he always kept in touch with his supervisor, albeit late. An aggravating factor, however, is that this is not the accused’s first breach of this recognizance. He was sentenced on two breaches for not complying with his assessment, treatment, programming and a curfew. He also has a lengthy criminal record with violent convictions.

The purpose of a s 810.2 recognizance is to protect the public by preventing future criminal activity. Paramount consideration is not only placed on this purpose but also specific and general deterrence. The gravity of the breach must be examined in the context of the offender’s history (R v Zimmerman, 2011 ABCA 276). The court is required to consider the prior offences and circumstances of the accused in determining an appropriate sentence, keeping in mind that this type of recognizance has a different purpose from an undertaking or probation order.

With respect to Gladue factors (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]), the accused had a difficult childhood, including attending residential school. The accused grew up from residential school to the penitentiary. The Supreme Court of Canada reiterated the seriousness of the incarceration problem and called on the justice system to address it. Rehabilitation was emphasized and sentencing judges were directed to ensure that they were not contributing to ongoing systemic racial discrimination (R v Ipeelee, [2012] 2 CNLR 218 [“Ipeelee”]).

S 718.2(e) is properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process” (Gladue). No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. S 718.2(b) simply requires that any disparity between sanctions for different offenders be justified. Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination (Ipeelee). Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail. There is a constitutional imperative to avoiding excessive concern about sentence disparity (Ipeelee).

While specific and general deterrence are significant factors in assessing these types of breaches, the accused’s past and criminal history at this time and in this particular breach does not give the Court any reason to fear that the public is at risk of a violent crime. The accused’s lack of reporting is not significant as completely removing himself from supervision, which did not occur. He was lackadaisical in reporting as opposed to complete non-compliance. He turned himself in at the earliest opportunity and did not commit any other substantive offences. While a s 810.2 recognizance has a similar purpose and method as a long-term offender order, the accused is not a long-term offender. He was reporting and participating in his programs, albeit not as stringently as he should have been concerning his attendance. While these types of breaches are something the Court should be concerned about, there is no evidence that the accused has fallen back into his addictions that would open up a risk to the public.

The determination of a just and appropriate sentence is a highly individualized exercise and involves a variety of factors that are difficult to define with precision. It may happen that a sentence falls outside a particular range, that may never have been imposed in the past for a similar crime, but is not demonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. The fact that a judge deviates from a sentencing range established by the courts does not in itself justify appellate intervention. The accused is not more likely to commit a violent crime because he missed an appointment.