Digest: R v Moise, 2017 SKQB 372

• Date: December 17, 2019

Reported as: 2017 SKQB 372

Docket Number: CRM 674/07 JCR , QB18225

Court: Court of Queen's Bench

Date: 2019-12-17

Judges:

• Krogan

Subjects:

• Criminal Law - Sentencing � Dangerous Offender � Appeal
• Criminal Law � Sentencing � Aboriginal Offender

Digest: The accused had been designated a dangerous offender pursuant to Part XXIV of the Criminal Code (see: 2012 SKQB 389). He appealed that sentence and it was allowed on the ground that the sentencing judge erred by failing to consider the principles set out in either Gladue or Ipeelee as required by s. 718.2(e) of the Code. The Court of Appeal set aside the designation and ordered a new hearing. The predicate offences committed by the accused occurred in February 2007 and therefore the Criminal Code Part XXIV provisions in effect at that time were applicable. The predicate offences to which the accused had pled guilty in October 2008 included break and entry and committing the indictable offence of aggravated assault contrary to s. 348(1)(b) of the Code and carrying a knife for a purpose dangerous to the public peace contrary to s. 88 of the Code. The accused also pled guilty to an assault (s. 266) charge for an offence committed while on remand. The accused acknowledged that he met the definition of dangerous offender (DO), but submitted that there was a reasonable possibility that his risk could be managed in the community and he should receive a long-term offender designation instead. The Crown�s position was that having met the definition of DO, the accused ought to be declared as such and an indeterminate sentence imposed on him. The accused, aged 39 at the time of the second hearing, was a member of the Muskowekwan First Nation. His parents and his grandparents had all attended residential school as had the accused between the ages of five to eight. The accused witnessed domestic abuse because of his parents� alcoholism. He was physically and verbally abused by them and he and his siblings were often neglected. He began drinking at 11 and committing criminal offences to obtain money to pay for alcohol. His alcohol consumption contributed to his propensity to physical violence when he lost his temper. He was treated for alcohol addiction at the age of 15. As a young offender he was convicted of many offences and after one episode that occurred when he was 16, where he committed violent assaults and shot a victim while he was intoxicated and angry, the accused consented to trial as an adult. He was sentenced to 35 months in jail in a federal penitentiary. Despite participating in various programs to address his anger management, the accused continued to commit similar violent offences after he was released from custody and for which he received a nine-year sentence. While in prison, he participated satisfactorily in programming and was statutorily released in September 2006, subject to the conditions that included abstinence from intoxicants and reporting...