R. v. Keepness (S.C.), 2014 SKCA 110

• Judge: Lane, Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 29, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 110;(2014), 446 Sask.R. 125 (CA)

R. v. Keepness (S.C.) (2014), 446 Sask.R. 125 (CA);

    621 W.A.C. 125

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. NO.002

Her Majesty the Queen (appellant) v. Shawn Curtis Keepness (respondent)

(CACR2051)

Shawn Curtis Keepness (appellant) v. Her Majesty the Queen (respondent)

(CACR2055; 2014 SKCA 110)

Indexed As: R. v. Keepness (S.C.)

Saskatchewan Court of Appeal

Lane, Jackson and Ottenbreit, JJ.A.

October 29, 2014.

Summary:

The accused, in a judgment reported (2009), 348 Sask.R. 49, was convicted of manslaughter and two counts of aggravated assault by wounding. The offences resulted from a gang-related home invasion. The Crown applied under s. 752.1(1) of the Criminal Code for an order remanding the accused for an expert assessment for use as evidence in an application under s. 753 or 753.1 to have him declared either as a dangerous offender or a long- term offender.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2010), 351 Sask.R. 284, allowed the application and ordered the assessment. The sentencing proceeded.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2011), 379 Sask.R. 68, designated the accused as a long-term offender and sentenced him to 15 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for the aggravated assaults. He was given 4.5 years' credit for 37.5 months spent on remand, 32 months of which was as a serving prisoner for unrelated offences, resulting in a total sentence of 10.5 years' imprisonment. The court imposed the maximum 10 year long-term offender supervision order, a lifetime weapons prohibition, and a DNA sample order. The accused appealed his convictions on the ground that the verdicts were unreasonable. He also appealed the length of his global sentence. The Crown appealed the sentence, challenging both its length and the amount of credit given for pre-trial custody.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting on the Crown's sentence appeal, dismissed the accused's conviction and sentence appeals and allowed the Crown's sentence appeal. The sentences imposed were not manifestly unfit. However, the accused was entitled to no credit for the 32 months incarcerated as a serving prisoner on unrelated offences. Credit should have been limited to 11 months' credit for the remaining 5.5 months spent on remand pending his manslaughter sentencing (2.0 to 1.0 basis). Accordingly, the accused's net sentence should have been 14 years and one month, rather than 10.5 years.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - Four men broke into a drug house and shouted "NSK" (Native Syndicate Killers) and demanded drugs and money - One of the occupants of the house was stabbed and died - A second occupant was beaten and stabbed - A third occupant was beaten and cut with a knife - The accused, who was not present during the home invasion, was charged with manslaughter and two counts of aggravated assault - The Crown alleged that he was a party to the offences pursuant to s. 21(2) of the Criminal Code - The trial judge found the accused guilty - The accused was the leader of the gang - They regularly carried weapons - The accused formed an intention in common with the four principals to carry out the unlawful act of breaking into the house and robbing the occupants and to assist each other to do so - He adhered to that common intention despite the fact that he did not go with the principals to the house to personally undertake the crime - The accused instructed the individuals to go and commit the crime - While he did not go along, there was no evidence that he had abandoned the plan - He adhered to the plan and took action in furtherance of the plan (picked the principals up afterwards, collected their clothing, punished one person who did not adhere to the plan, etc.) - A reasonable person in the same circumstances would know that one of the participants in the original plan would probably commit one of the offences that occurred (i.e., commit an unlawful act in the course of breaking into the house and robbing the occupants that would put another person at risk of some harm or injury that was more than minor) - The Saskatchewan Court of Appeal dismissed the accused's appeal on the ground that the verdicts were unreasonable - The accused failed to establish (1) that a properly instructed trier of fact acting judicially could not have reasonably convicted the accused considering the evidence as a whole and (2) that the trial judge's assessment of the credibility of the witnesses could not be supported on any reasonable view of the evidence - See paragraphs 41 to 50.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes a party - [See Criminal Law - Topic 2742 ].

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - [See Criminal Law - Topic 2742 ].

Criminal Law - Topic 2763

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - What constitutes - Four men broke into a drug house and shouted "NSK" (Native Syndicate Killers) and demanded drugs and money - One of the occupants of the house was stabbed and died - A second occupant was beaten and stabbed - A third occupant was beaten and cut with a knife - The accused, who was not present during the home invasion, was charged with manslaughter and two counts of aggravated assault as a result of a gang related home invasion - The Crown alleged that he was a party to the offences pursuant to s. 22 of the Criminal Code (counselling another to commit an offence) - The trial judge found the accused guilty - The accused was the leader of the gang - He actively counselled and induced the four principals to go to the house and to break in and rob the occupants of money and drugs - He had more than a conscious disregard of the substantial and unjustified risk inherent in the counselling - The offences occurred as a result of the principals carrying out the plan to break into the home and rob the occupants - The accused knew or ought to have known that the principal offenders, who regularly carried weapons, were likely to commit the offences of manslaughter and aggravated assault in consequence of his original counselling of them to break in and rob the victims - The Saskatchewan Court of Appeal dismissed the accused's appeal on the ground that the verdicts were unreasonable - The accused failed to establish (1) that a properly instructed trier of fact acting judicially could not have reasonably convicted the accused considering the evidence as a whole and (2) that the trial judge's assessment of the credibility of the witnesses could not be supported on any reasonable view of the evidence - See paragraphs 41 to 50.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - [See Criminal Law - Topic 2742 ].

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms, etc. - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of manslaughter and two counts of aggravated assault by wounding resulting from a gang-related home invasion - The trial judge designated the accused as a long-term offender and sentenced him to 15 years' imprisonment for manslaughter and seven years' imprisonment (concurrent) for the aggravated assaults - The accused was given 4.5 years' credit for 37.5 months' pre-trial custody, 32 months of which the accused was a serving prisoner for unrelated offences - As the accused would have been released at the latest 21 months into his 32 month sentence (2/3), he was given 1.0 to 1.0 credit for 21 months, and 2.0 to 1.0 credit for the remaining 16.5 months on remand solely attributable to the present offences - The Saskatchewan Court of Appeal held that the credit given by the trial judge did not conform with s. 719(3) of the Criminal Code, which provided for credit for pre-trial custody "as a result of the offence" - The court stated that "a judge is not, when sentencing an accused, entitled under s. 719(3) to credit an accused for time spent serving a sentence previously imposed on another unrelated offence which happens to be the same time the accused is in pre-trial custody for the offence for which the accused is being sentenced" - The accused was entitled to no credit for the 32 months incarcerated as a serving prisoner on unrelated offences - His credit should have been limited to 11 months' credit for the remaining 5.5 months spent on remand pending his manslaughter sentencing (2.0 to 1.0 basis) - Accordingly, the accused's net sentence should have been 14 years and one month, rather than 10.5 years - See paragraphs 62 to 97.

Criminal Law - Topic 5849.23

Sentencing - Considerations - Home invasion - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - Four gang members (Native Syndicate Killers) committed a home invasion to search for drugs and money - Several occupants of the home (three teenagers) were attacked, struck with a bat, metal pipe and fists, and kicked - Two victims were stabbed with a knife - One victim (age 19) died - The young native accused, Shawn Keepness, was 22 years old at time of offences and was presently 26 years old - He was convicted of manslaughter and two counts of aggravated assault - Although, the accused did not personally inflict violence or personally stab any of the victims, he was convicted as a party to those offences - The individuals acted in concert under the banner of a gang - The accused was instrumental in planning the home invasion - The accused had 37 convictions, including numerous convictions for some form of assault and/or involving the use of a weapon - He had repeatedly offended while subject to recognizances, disposition orders, probation orders and while in remand custody awaiting trial - He had a horrific childhood - He had an artificial leg as a result of traumatic childhood injury - He was diagnosed with ADHD and Antisocial Personality Disorder - He posed a substantial risk to re-offend violently but had some prospects for potential treatment - The trial judge designated the accused as a long-term offender and sentenced him to 15 years' imprisonment for manslaughter and seven years' concurrent for the aggravated assaults - The sentence was similar to that of several other accused - He was given 4.5 years' credit for time spent on remand, resulting in a total sentence of 10.5 years' imprisonment - The court imposed the maximum 10 year long-term offender supervision order and a lifetime weapons prohibition - The Saskatchewan Court of Appeal held that the sentence was not demonstrably unfit - However, the court reduced credit for pre-trial custody from 4.5 years to 11 months - See paragraphs 50 to 61.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5882 ].

Cases Noticed:

R. v. Keepness (D.L.) et al., [2010] 10 W.W.R. 13; 359 Sask.R. 34; 494 W.A.C. 34; 2010 SKCA 69, refd to. [para. 3].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 23].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 23].

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. 32].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 36].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 38].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 37].

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. 38].

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. 38].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 38].

R. v. Francis (G.) (2006), 210 O.A.C. 41; 207 C.C.C.(3d) 536 (C.A.), refd to. [para. 38].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 43].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 43].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 43].

R. v. Worm (J.) et al. (2014), 442 Sask.R. 228; 616 W.A.C. 228; 2014 SKCA 94, refd to. [para. 44].

R. v. Brass (D.A.R.), [2007] 11 W.W.R. 191; 304 Sask.R. 20; 413 W.A.C. 20; 2007 SKCA 94, refd to. [para. 44].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 44].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 71].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713 (C.A.), refd to. [para. 72].

R. v. Wilson (R.) (2008), 240 O.A.C. 59; 236 C.C.C.(3d) 285; 2008 ONCA 510, refd to. [para. 73].

R. v. Poole (A.D.) (2005), 219 B.C.A.C. 286; 361 W.A.C. 286; 204 C.C.C.(3d) 61; 2005 BCCA 625, refd to. [para. 76].

R. v. Jean (E.J.) (2008), 265 B.C.A.C. 80; 446 W.A.C. 80; 242 C.C.C.(3d) 569; 2008 BCCA 465, refd to. [para. 77].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 228 C.C.C.(3d) 432; 2008 BCCA 76, refd to. [para. 78].

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451; 1999 BCCA 159, refd to. [para. 115].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 121].

R. v. Calder Berg (S.L.) (2007), 243 B.C.A.C. 179; 401 W.A.C. 179; 221 C.C.C.(3d) 449; 2007 BCCA 343, refd to. [para. 128].

R. v. Traverse (L.) et al. (2008), 231 Man.R.(2d) 123; 437 W.A.C. 123; 238 C.C.C.(3d) 330; 2008 MBCA 110, refd to. [para. 130].

R. v. Bernier (D.C.) (2003), 179 B.C.A.C. 218; 295 W.A.C. 218; 177 C.C.C.(3d) 137; 2003 BCCA 134, refd to. [para. 144].

Counsel:

James Struthers, Q.C., for Shawn Curtis Keepness;

W. Dean Sinclair, for the Crown.

These appeals were heard on January 22, 2014, before Lane, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal.

On October 29, 2014, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Ottenbreit, J.A. (Lane, J.A., concurring) - see paragraphs 1 to 99;

Jackson, J.A., dissenting on the Crown's sentence appeal - see paragraphs 100 to 156.