R. v. Ben (B.), 2012 SKPC 52

• Judge: Dyck, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 30, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKPC 52;(2012), 395 Sask.R. 93 (PC)

R. v. Ben (B.) (2012), 395 Sask.R. 93 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.019

Her Majesty the Queen v. Brian Ben

(Information No. 24412696; 2012 SKPC 52)

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

Saskatchewan Provincial Court

Dyck, P.C.J.

March 30, 2012.

Summary:

The accused was found guilty of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code, and resisting a peace officer, contrary to s. 129(a) of the Code. The Crown applied for an assessment order, pursuant to s. 752.1 of the Code, alleging that there were reasonable and probable grounds to believe that the accused might be found to be a dangerous offender.

The Saskatchewan Provincial Court, in a decision reported at (2011), 374 Sask.R. 165, granted the Crown's application. The Crown subsequently applied to have the accused declared a dangerous offender and sentenced to an indeterminate period of custody.

The Saskatchewan Provincial Court determined that the accused was to be designated a dangerous offender, but it held that an indeterminate sentence was not required. On the predicate offence of assaulting a peace officer with a weapon, the court sentenced the accused to 50 months in custody, with credit for 14 months on remand, resulting in a sentence of three years. That was to be followed by a long-term supervision order for a period of six years. The court sentenced the accused to six months' imprisonment, concurrent, on the resisting peace officer offence. The court also imposed a lifetime weapons prohibition order pursuant to s. 109 of the Code, and a DNA sample order.

Criminal Law - Topic 5888

Sentence - Resisting or obstructing a peace officer - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 5894

Sentence - Assaulting a police officer or peace officer - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - General - Dangerous offender - Defined - The accused was found guilty of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code, and resisting a peace officer, contrary to s. 129(a) of the Code - The Crown applied to have the accused declared a dangerous offender - The accused was 51 years old - He had a longstanding problem with alcohol - He had 58 previous convictions, including 12 involving violence - The Saskatchewan Provincial Court determined that the accused was to be designated a dangerous offender - The court found that the predicate offence (assaulting a peace officer with a weapon) was a "serious personal injury offence", there was a "pattern" of behaviour and the accused was not able to restrain that violent behaviour in the past, and there was a likelihood of the accused causing death, injury or severe psychological damage through failure to restrain his behaviour in the future - The requirements of s. 753(1)(a)(i) of the Code were therefore established - The Crown had also established the requirements of s. 753(1)(a)(ii) - The offence was a serious personal injury offence, there was a sufficient pattern of persistent, aggressive behaviour, and the Crown had proven beyond a reasonable doubt that the accused exhibited a substantial degree of indifference regarding the reasonable foreseeable consequences to his victims - See paragraphs 130 to 158.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Pattern of repetitive behaviour - The accused was found guilty of assaulting a peace officer with a weapon and resisting a peace officer - The Crown applied to have the accused declared a dangerous offender - The accused had 58 previous convictions, including three for uttering threats - With respect to the issue of whether there was a pattern of repetitive behaviour showing a failure by the accused to restrain his behaviour, the accused's counsel submitted that the court should not include the offences of uttering threats when looking at whether a "pattern" had been established - She relied on R. v. Neve (Alta. C.A.) - The Saskatchewan Provincial Court stated that "Although the situation with [the accused] is substantially different than the circumstances found within Neve, as [the accused] was much older than Ms. Neve when he committed the offences and he made his statements directly to the victims, I find that this argument has some merit, and I have not included the three charges of uttering threats in my determination of whether a 'pattern' exists" - See paragraphs 138 to 141.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - The accused was found guilty of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code, and resisting a peace officer, contrary to s. 129(a) of the Code - The Crown applied to have the accused declared a dangerous offender and sentenced to an indeterminate period of custody - The accused was 51 years old - He had a longstanding problem with alcohol - He had 58 previous convictions, including 12 involving violence - The Saskatchewan Provincial Court determined that the accused was to be designated a dangerous offender - With respect to sentence, the court held that the requirement for substantial programming and intense monitoring of the accused's behaviour to ensure he did not reoffend in a violent way required the imposition of a penitentiary period of incarceration coupled with a long-term supervision order - The court accepted evidence that aging would be a factor in reducing risk - The court did not find the accused's behaviour to be intractable and unlikely to be treatable - The court was satisfied that with further programming and taking into account the age factor, an indeterminate period of custody was not required - On the predicate offence of assaulting a peace officer with a weapon, the court sentenced the accused to 50 months in custody, with credit for 14 months on remand, resulting in a sentence of three years - That was to be followed by a long-term supervision order for six years - The court imposed six months' imprisonment, concurrent, on the resisting a peace officer offence - The court also imposed a lifetime weapons prohibition order pursuant to s. 109 of the Code, and a DNA sample order - See paragraphs 159 to 185.

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Indeterminate vs. determinate sentence - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 6577

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Community or long-term supervision order (incl. conditions) - [See Criminal Law - Topic 6574 ].

Cases Noticed:

R. v. Warawa (R.A.) (2011), 519 A.R. 140; 539 W.A.C. 140 (C.A.), refd to. [para. 126].

R. v. Harris (R.L.) (2011), 386 Sask.R. 216; 2011 SKPC 176, refd to. [para. 129].

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110; 2009 SKQB 306, refd to. [para. 132].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, consd. [para. 138].

R. v. Kolarava (D.) (2007), 223 Man.R.(2d) 29; 2007 MBPC 66, refd to. [para. 181].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1), sect. 753(4), sect. 753(4.1), sect. 753(5) [para. 125].

Counsel:

Jennifer Robertson, for the Crown;

Rosanne Newman, for the accused.

This matter was heard on March 30, 2012, at Meadow Lake, Saskatchewan, before Dyck, P.C.J., of the Saskatchewan Provincial Court, who delivered the following sentencing decision on March 30, 2012.