R. v. Gopher (G.) et al., 2005 SKQB 363

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 02, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 363;(2005), 270 Sask.R. 175 (QB)

R. v. Gopher (G.) (2005), 270 Sask.R. 175 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. SE.024

Her Majesty the Queen (Crown) v. Gabriel Gopher, Archie Moccasin and Mervin Night (accused)

(2004 C.N.J. No. 12; 2005 SKQB 363)

Indexed As: R. v. Gopher (G.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Baynton, J.

September 2, 2005.

Summary:

The accused were charged with criminal breach of trust and fraud. The Crown alleged that they defrauded the Saulteaux First Nation of over a million dollars of Treaty Land Entitlement trust funds.

The Saskatchewan Court of Queen's Bench, in a decision reported at 265 Sask.R. 1, found the accused guilty of both offences. The court entered a judicial stay of the fraud charges on the basis of R. v. Kienapple. The matter proceeded to sentencing.

The Saskatchewan Court of Queen's Bench imposed conditional sentences of two years less one day on all three accused and made restitution orders.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See all Criminal Law - Topic 5941 ].

Criminal Law - Topic 5720.5

Punishments (sentence) - Conditional sentence - Conditions of - Three accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - The Saskatchewan Court of Queen's Bench imposed a conditional sentence of two years less one day with strict conditions - One condition was that the accused had to refuse entry to their residence of any friends, family members (other than those they lived with) or any other visitors except those who had been approved by the supervisor, and such visits were restricted to a period of two hours on each Saturday and two hours on each Sunday of each week - See paragraph 54.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - Three accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - The accused requested a sentencing circle - The Saskatchewan Court of Queen's Bench held that a sentencing circle was not appropriate - This was not a simple case where there was one victim and one offender - Even if representatives could be selected for the victims, many of them would be friends or relatives of the offenders and would have a conflict of interest in choosing between their loyalty to friends and family and their loyalty to their community - Also, one of the accused wanted his own separate sentencing circle - The case could not be effectively dealt with on a piecemeal basis - Further, there were divisions among the First Nation - There was a significant possibility that a sentencing circle would inflame emotions and create even more divisions in the community than now existed - See paragraphs 45 to 47.

Criminal Law - Topic 5831.1

Sentencing - Considerations - Offences involving breach of trust - [See all Criminal Law - Topic 5941 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See all Criminal Law - Topic 5941 ].

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - One accused was Gopher, Saulteaux's Band Chief - 56 years old - Now separated from wife - Had 11 children - Had two heart attacks - Grade 11 education - No significant assets - Cut off social assistance - Minor old criminal record - Medium risk to re-offend - Former community leaders had also misused government monies - Actions reinforced the unfair stereotype that aboriginal peoples were incapable of managing their financial affairs or of governing themselves responsibly - The Crown sought a sentence of three to five years' imprisonment - The Saskatchewan Court of Queen's Bench imposed a conditional sentence of two years less one day with strict conditions, including 12 months of house arrest and 240 hours of community service, and ordered the accused to make restitution of $200,000.

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - One accused was Moccasin, a trustee of the fund - 59 years old - Married with seven children - Grade 8 education - Difficulty with English - No significant assets - Receiving social assistance - Low risk to re-offend - Former community leaders had also misused government monies - Actions reinforced the unfair stereotype that aboriginal peoples were incapable of managing their financial affairs or of governing themselves responsibly - The Crown sought a sentence of three to five years' imprisonment - The Saskatchewan Court of Queen's Bench imposed a conditional sentence of two years less one day with strict conditions, including 12 months of house arrest and 240 hours of community service, and ordered the accused to make restitution of $150,000.

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement (TLE) trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - One accused was Night, a Band councillor who held the TLE portfolio - 40 years old - Separated from his wife - Five young children - Alcoholic - Grade 12 education with three years of university - 13 prior convictions including for breach of a conditional sentence order - Many offences involved alcohol and his spouse - Receiving social assistance - Medium risk to re-offend - Former community leaders had also misused government monies - Actions reinforced the unfair stereotype that aboriginal peoples were incapable of managing their financial affairs or of governing themselves responsibly - The Crown sought a sentence of three to five years' imprisonment - The Saskatchewan Court of Queen's Bench imposed a conditional sentence of two years less one day with strict conditions, including 12 months of house arrest and 240 hours of community service, and ordered the accused to make restitution of $175,000.

Cases Noticed:

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 20].

R. v. Dickhoff (K.J.) (1998), 172 Sask.R. 1; 185 W.A.C. 1; 130 C.C.C.(3d) 494 (C.A.), refd to. [para. 21].

R. v. Moulton (K.) (2001), 213 Sask.R. 130; 260 W.A.C. 130; 160 C.C.C.(3d) 407; 2001 SKCA 121, refd to. [para. 22].

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. 27].

R. v. John (R.C.) (1995), 162 A.R. 238; 83 W.A.C. 238 (C.A.), dist. [para. 31].

R. v. Leis (S.F.) (2004), 255 Sask.R. 87; 2004 SKQB 463, refd to. [para. 32].

R. v. John (J.L.) (2004), 241 Sask.R. 268; 313 W.A.C. 268; 182 C.C.C.(3d) 273 (C.A.), refd to. [para. 33].

R. v. Fehr (J.K.) (2001), 207 Sask.R. 101; 247 W.A.C. 101; 2001 SKCA 37, refd to. [para. 34].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120; 101 C.C.C.(3d) 124 (C.A.), refd to. [para. 45].

R. v. Munson (K.) et al. (2003), 232 Sask.R. 44; 294 W.A.C. 44; 172 C.C.C.(3d) 515; 2003 SKCA 28, refd to. [para. 45].

Counsel:

Perry Polishchuk, for the Crown;

Michael Nolin, for Gabriel Gopher;

Peter Abrametz, Jr., for Archie Moccasin;

Andrew Mason, for Mervin Night.

This matter was heard by Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who imposed the following sentence on September 2, 2005.