R. v. Ahpay (B.), (2015) 472 Sask.R. 89 (CA)

• Judge: Jackson, Ottenbreit and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 09, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 472 Sask.R. 89 (CA);2015 SKCA 136

R. v. Ahpay (B.) (2015), 472 Sask.R. 89 (CA);

    658 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.040

Her Majesty the Queen (appellant) v. Barry Ahpay (respondent)

(CACR2638; 2015 SKCA 136)

Indexed As: R. v. Ahpay (B.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Ryan-Froslie, JJ.A.

December 9, 2015.

Summary:

The aboriginal accused was convicted in Provincial Court of driving while disqualified under s. 259(4) of the Criminal Code and received a six month jail sentence and a one year driving prohibition. The Crown sought leave to appeal and appealed the sentence.

The Saskatchewan Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 5885 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5885 ].

Criminal Law - Topic 5885

Sentence - Driving while disqualified or suspended - The aboriginal accused (Ahpay) was convicted in Provincial Court of driving while disqualified under s. 259(4) of the Criminal Code and received a six month jail sentence and a one year driving prohibition - The Crown had asked for a two year sentence based on Ahpay's long criminal record history and 11 prior driving while disqualified offences - The Saskatchewan Court of Appeal upheld the sentence on a Crown appeal - The court stated that "Ahpay's driving was not per se risky. More significantly, he was not impaired by alcohol or drugs which would have affected his driving and put the public at risk. He had committed no similar offences since 2007. His personal, family and community connections are very positive. In these circumstances, a penitentiary term would ... be inappropriate. The trial judge was clearly aware of the need for denunciation and deterrence based on his exchanges with Crown counsel. ... Mr. Ahpay's pre-sentence report provided information relevant to Gladue factors which the Provincial Court judge properly found applicable to Mr. Ahpay as a resident of a First Nation community who might have some difficulty navigating the process to obtain a valid licence sooner. He took into account this offender, this offence and his community as well as the general context of the offence. ... [T]he sentence imposed, while on the low end of the sentencing spectrum, was not demonstrably unfit."

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5885 ].

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 9].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9].

R. v. Bighead (S.D.) (2013), 417 Sask.R. 47; 580 W.A.C. 47; 2013 SKCA 63, refd to. [para. 10].

R. v. Quewezance (E.E.) (2011), 375 Sask.R. 320; 525 W.A.C. 320; 2011 SKCA 123, refd to. [para. 10].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 10].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 10].

Counsel:

Beverly L. Klatt, for the appellant;

Andrew L. Hitchcock, for the respondent.

This application for leave to appeal and appeal were heard by Jackson, Ottenbreit and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following written reasons for the court on December 9, 2015.