R. v. Bird (D.G.), 2015 SKCA 134

• Judge: Ottenbreit, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 24, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 134;(2015), 467 Sask.R. 277 (CA)

R. v. Bird (D.G.) (2015), 467 Sask.R. 277 (CA);

    651 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.038

Her Majesty the Queen (appellant) v. Donald Glen Bird (respondent)

(CACR2419; 2015 SKCA 134)

Indexed As: R. v. Bird (D.G.)

Saskatchewan Court of Appeal

Ottenbreit, Herauf and Whitmore, JJ.A.

December 8, 2015.

Summary:

The accused pled guilty to sexual assault and breaching an order that prohibited him from having contact with children under the age of 14. The Crown applied to have the accused designated as a dangerous offender.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 440 Sask.R. 131, declared the accused a dangerous offender. The accused was sentenced to five years' imprisonment followed by a three year supervision order for sexual assault, and one year concurrent for breaching the prohibition order. The Crown appealed the sentence.

The Saskatchewan Court of Appeal allowed the appeal and sentenced the accused to an indeterminate sentence. The court also made an order prohibiting the accused from possessing a firearm or weapon for 10 years.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - Bird pled guilty to (1) sexual assault for briefly playing with or grabbing a 14 year old boy's penis over top of the boy's pants, and (2) breaching an order that prohibited him from having contact with children under the age of 14 for babysitting two boys - The sentencing judge declared Bird a dangerous offender and sentenced him to five years' imprisonment followed by a three year supervision order for sexual assault, and one year concurrent for breaching the prohibition order - The Crown appealed, arguing that the sentencing judge erred in failing to impose a firearms and weapons prohibition order under s. 109 of the Criminal Code - The Saskatchewan Court of Appeal allowed the appeal - Whether or not actual violence was engaged, a sexual assault against a child was in and of itself an act of violence against the child - Section 109 applied to Bird's conviction - The court ordered that Bird be prohibited from possessing a firearm or weapon for 10 years - See paragraphs 79 to 86.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See first Criminal Law - Topic 6574 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See second Criminal Law - Topic 6574 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - [See second Criminal Law - Topic 6574 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See both Criminal Law - Topic 6574 ].

Criminal Law - Topic 6515

Dangerous or long-term offenders - Detention - General - Appeals - When available - Bird pled guilty to (1) sexual assault for briefly playing with or grabbing a 14 year old boy's penis over top of the boy's pants, and (2) breaching an order that prohibited him from having contact with children under the age of 14 for babysitting two boys - Bird had four prior sexual assault convictions and one conviction for sexual interference - The sentencing judge declared Bird a dangerous offender but declined to order an indeterminate sentence - Bird was sentenced to five years' imprisonment followed by a three year supervision order for sexual assault, and one year concurrent for breaching the prohibition order - The Crown appealed, arguing that the sentencing judge made a palpable and overriding error of fact in finding that Bird's offences were opportunistic and involved minor sexual touching - The Saskatchewan Court of Appeal held that there was no right of appeal on this ground because s. 759(2) of the Criminal Code limited the Crown's appeal to questions of law alone - See paragraphs 75 to 77.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - Bird pled guilty to (1) sexual assault for briefly playing with or grabbing a 14 year old boy's penis over top of the boy's pants, and (2) breaching an order that prohibited him from having contact with children under the age of 14 for babysitting two boys - Bird had four prior sexual assault convictions and one conviction for sexual interference - The sentencing judge declared Bird a dangerous offender but declined to order an indeterminate sentence on the basis that it would be disproportionate to the gravity of the offence - Bird was sentenced to five years' imprisonment followed by a three year supervision order for sexual assault, and one year concurrent for breaching the prohibition order - The Crown appealed, arguing that the sentencing judge misapplied the principles of sentencing because the principle of proportionality was already incorporated into the dangerous offender provisions of the Criminal Code - The Saskatchewan Court of Appeal agreed - It was incorrect to suggest that Bird's entire criminal record consisted of only minor sexual assaults in order to find that an indeterminate sentence was disproportionate to the predicate offence - Parliament had determined that indeterminate sentences were presumptively required to prevent dangerous offenders from committing these offences - The only proper reason for a sentencing judge not to impose an indeterminate sentence was if he or she was satisfied that a lesser measure would adequately protect the public - See paragraphs 24 to 32.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - Bird pled guilty to (1) sexual assault for briefly playing with or grabbing a 14 year old boy's penis over top of the boy's pants, and (2) breaching an order that prohibited him from having contact with children under the age of 14 for babysitting two boys - Bird had four prior sexual assault convictions which typically involved grabbing a victim in the genital area, and one conviction for sexual interference wherein he assaulted a boy over a three year period beginning when the boy was 11 years old - The sentencing judge declared Bird a dangerous offender but declined to order an indeterminate sentence, finding that the combined effect of incarceration and community supervision would adequately protect the public - Bird was sentenced to five years' imprisonment followed by a three year supervision order for sexual assault, and one year concurrent for breaching the prohibition order - The Saskatchewan Court of Appeal allowed the Crown's appeal and imposed an indeterminate sentence - Bird was evaluated as a high risk to re-offend sexually - He was and always would be a pedophile - He assaulted young victims by design and was not simply an opportunistic molester - Although the sentencing judge found that Bird did well with intense supervision, the concern of Part XXIV of the Criminal Code was whether the offender did well while not being intensely supervised - The sentencing judge misapprehended the nature and severity of Bird's prior offences and his likely re-offending behaviour - The expectation that a lesser sentence than an indeterminate sentence would protect the public was not reasonable - See paragraphs 33 to 67.

Criminal Law - Topic 6575

Dangerous or long-term offenders - Detention - Sentencing - Sentence - [See second Criminal Law - Topic 6574 ].

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention - Sentencing - Indeterminate vs. determinate sentence - [See both Criminal Law - Topic 6574 ].

Cases Noticed:

R. v. Warawa (R.A.) (2011), 519 A.R. 140; 539 W.A.C. 140; 278 C.C.C.(3d) 409; 2011 ABCA 294, agreed with [para. 7].

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. 18].

R. v. Steele (J.M.), [2014] 3 S.C.R. 138; 463 N.R. 125; 310 Man.R.(2d) 236; 618 W.A.C. 236; 2014 SCC 61, refd to. [para. 18].

R. v. Hatchwell, [1976] 1 S.C.R. 39; 3 N.R. 571, refd to. [para. 25].

R. v. Osborne (C.G.) (2014), 306 Man.R.(2d) 276; 604 W.A.C. 276; 2014 MBCA 73, refd to. [para. 26].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 27].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 28].

R. v. G.N.B. (2014), 446 Sask.R. 184; 621 W.A.C. 184; 2014 SKCA 112, refd to. [para. 36].

R. v. J.T.M. (2011), 379 Sask.R. 211; 2011 SKPC 109, refd to. [para. 36].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, folld. [para. 42].

R. v. Standingwater (J.R.) (2013), 417 Sask.R. 158; 580 W.A.C. 158; 2013 SKCA 78, refd to. [para. 69].

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. 71].

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. 71].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 74].

R. v. Natomagan (A.D.) (2012), 393 Sask.R. 130; 546 W.A.C. 130; 2012 SKCA 46, refd to. [para. 76].

R. v. G.B. (2005), 288 N.B.R.(2d) 82; 751 A.P.R. 82; 201 C.C.C.(3d) 77; 2005 NBCA 72, refd to. [para. 82].

R. v. Jobb (1988), 67 Sask.R. 315; 43 C.C.C.(3d) 476 (C.A.), refd to. [para. 84].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 109 [para. 81]; sect. 753(1) [para. 6]; sect. 753(4), sect. 753(4.1) [para. 10].

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Bruce Campbell, for the respondent.

This appeal was heard on June 24, 2015, before Ottenbreit, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Whitmore, J.A., delivered the following judgment for the court on December 8, 2015.