R. v. Knife (F.J.), 2015 SKCA 82

• Judge: Richards, C.J.S., Lane and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 19, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 82;(2015), 460 Sask.R. 287 (CA)

R. v. Knife (F.J.) (2015), 460 Sask.R. 287 (CA);

    639 W.A.C. 287

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.044

Her Majesty the Queen (appellant) v. Frederick Junior Knife (respondent)

(CACR2316)

Frederick Junior Knife (appellant) v. Her Majesty the Queen (respondent)

(CACR2354; 2015 SKCA 82)

Indexed As: R. v. Knife (F.J.)

Saskatchewan Court of Appeal

Richards, C.J.S., Lane and Herauf, JJ.A.

July 8, 2015.

Summary:

The accused was an inmate at a federal penitentiary. He was charged with one count of aggravated assault and one count of common assault. The victims were two fellow inmates. The alleged assaults were captured by surveillance video. Identification was an issue at trial. The Crown sought to admit the video and to lead "recognition evidence" from a corrections officer who was familiar with the accused and would be able to identify him as one of the perpetrators of the assaults.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 387 Sask.R. 1, held that the video and the officer's evidence were admissible. The trial proceeded.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 387 Sask.R. 6, found the accused guilty on both counts. The Crown applied to have the accused declared a dangerous offender under s. 753(1) of the Criminal Code due to the aggravated assault conviction.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 421 Sask.R. 133, found that the accused was a long-term offender under s. 753.1(1). The accused was sentenced to eight years' imprisonment for aggravated assault and six months, concurrent, for common assault to be followed by 10 years under a long-term supervision order. The accused had spent four years in presentence custody. After receiving credit for four years, the remaining sentence to be served was four years. The Crown appealed from the long-term offender designation, seeking a dangerous offender designation. The accused appealed from the sentence.

The Saskatchewan Court of Appeal allowed the Crown's appeal. The accused was declared to be a dangerous offender. The accused's appeal was dismissed. The substantive sentence was not altered.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - [See second Criminal Law - Topic 6574 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See first Criminal Law - Topic 6574 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See first Criminal Law - Topic 6574 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See second Criminal Law - Topic 6574 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See third Criminal Law - Topic 6574 ].

Criminal Law - Topic 5938

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

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender - Defined - The Saskatchewan Court of Appeal discussed the interpretation and application of s. 753(1)(a) of the Criminal Code under which an accused could be declared a dangerous offender - Section 753(1)(a) was aimed at identifying patterns of violent behaviour - The repetition of the violent behaviour formed the pattern - The accused had to have prior violent offences (even if only one), and the predicate offence had to constitute a repetition of the accused's violent behaviour - Despite similarities in the violent behaviour, the offences might be different due to extrinsic factors - To ensure that the dissimilarities in extrinsic factors did not affect the issue of whether an accused was a dangerous offender, "repetition" could be demonstrated by similarities in the degree of violence used - The focus was on similarities in the accused's violent behaviour that showed a failure to restrain that behaviour - The fact of repetition demonstrated a failure to restrain the violent behaviour, but the additional element of future risk also had to be established - See paragraphs 50 to 73.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender - Defined - The 28 year old accused was an inmate at a federal penitentiary - He was found guilty of aggravated assault (the predicate offence) and common assault - The victims were two fellow inmates - The Crown applied to have the accused declared a dangerous offender under s. 753(1) of the Criminal Code - The trial judge declared the accused to be a long-term offender - The Saskatchewan Court of Appeal allowed the Crown's appeal - The trial judge erred by requiring too high a degree of factual similarity between the accused's 2005 manslaughter conviction and the predicate offence in assessing the pattern of behaviour - He failed to assess whether there was sufficient similarity in the violent behaviour to allow a conclusion that such behaviour was likely to continue in the future and was likely to cause injury or death to others - He also failed to assess whether there were any similarities in the elements of unrestrained behaviour between the accused's youth offences, the manslaughter and the predicate offence that was sufficient to establish a pattern of dangerous behaviour - In finding the elements of a pattern to be missing, the trial judge had erred - The lack of contextual similarities was not fatal to a pattern's existence if there were sufficient similarities in the accused's violent behaviour to show a failure to restrain that behaviour and a likelihood of causing death or injury - See paragraphs 74 to 78.

Criminal Law - Topic 6503

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Dangerous offender - Defined - The 28 year old accused was an inmate at a federal penitentiary - He was found guilty of aggravated assault (the predicate offence) and common assault - The victims were two fellow inmates - The Crown applied to have the accused declared a dangerous offender under s. 753(1) of the Criminal Code - The trial judge declared the accused to be a long-term offender - The Saskatchewan Court of Appeal allowed the Crown's appeal, declaring the accused to be a dangerous offender - The trial judge had erred in law in his interpretation of what was required under s. 753(1)(a) - The evidence was sufficient to establish that the accused was a dangerous offender - He had been committing violent offences on a regular basis since he was 12 - The levels of violence had increased over time - All of the offences had been committed in concert with others - There was a pattern of repetitive behaviour that showed both a failure to restrain his behaviour and likelihood of causing death or injury in the future - See paragraphs 79 to 88.

Criminal Law - Topic 6508

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Dangerous offender - Legislation - Interpretation and application - [See all Criminal Law - Topic 6503 ].

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Pattern of repetitive behaviour - [See all Criminal Law - Topic 6503 ].

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Considerations - The 28 year old aboriginal accused was an inmate at a federal penitentiary - He was found guilty of aggravated assault and common assault - The victims were two fellow inmates - The trial judge, having held that the accused was a long-term offender under s. 753.1(1) of the Criminal Code, sentenced him to eight years' imprisonment for aggravated assault and six months, concurrent, for common assault to be followed by 10 years under a long-term supervision order (LTSO) - The Saskatchewan Court of Appeal dismissed the accused's appeal from his sentence - The trial judge had not erred by failing to consider the accused's prospects for rehabilitation as mandated by Gladue - He crafted a sentence that ensured that the accused would be incarcerated long enough to complete the programming that was necessary for rehabilitation - A lengthy LTSO was imposed to facilitate the accused's rehabilitation and reintegration - See paragraphs 91 to 98.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Considerations - The 28 year old aboriginal accused was an inmate at a federal penitentiary - He was found guilty of aggravated assault and common assault - The victims were two fellow inmates - The trial judge, having held that the accused was a long-term offender under s. 753.1(1) of the Criminal Code, sentenced him to eight years' imprisonment for aggravated assault and six months, concurrent, for common assault to be followed by 10 years under a long-term supervision order - The accused appealed from the sentence, asserting, inter alia, that the trial judge had erred by failing to take into account the lighter sentences received by his two co-accused - The Saskatchewan Court of Appeal dismissed the appeal - The sentencing judge correctly noted that the range for similar aggravated assaults was seven to 8.5 years - The sentences received by the co-accused were well below this range, but that did not automatically entitle the accused to a sentence that was below the acceptable range - The accused's sentence was fit - See paragraphs 99 to 104.

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Considerations - The 28 year old aboriginal accused was an inmate at a federal penitentiary - He was found guilty of aggravated assault and common assault - The victims were two fellow inmates - The trial judge, having held that the accused was a long-term offender under s. 753.1(1) of the Criminal Code, sentenced him to eight years' imprisonment for aggravated assault and six months, concurrent, for common assault to be followed by 10 years under a long-term supervision order - The accused had spent four years in presentence custody - After receiving credit for four years, the remaining sentence to be served was four years - On appeal from the sentence, the accused sought, inter alia, enhanced credit for presentence custody - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge had considered the accused's request for enhanced credit, but declined it on the basis that the remaining sentence would not provide the accused with the programming that was needed to reduce and control his risk in the community - The trial judge was not obligated to grant enhanced credit - He had a principled, justified reason for declining to do so - There was no basis for interfering with his discretion on this ground - See paragraphs 105 to 108.

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 first Criminal Law - Topic 6574 ].

Cases Noticed:

R. v. Dagenais (R.A.) (2003), 339 A.R. 132; 312 W.A.C. 132; 181 C.C.C.(3d) 332 (C.A.), refd to. [para. 23].

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. 52].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 53].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 53].

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. 53].

R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; 360 A.P.R. 197 (Nfld. C.A.), refd to. [para. 56].

R. v. Neve (L.C.), [1999] 11 W.W.R. 649; 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 58].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323; 1999 BCCA 177, refd to. [para. 59].

R. v. Hogg (D.A.) (2011), 287 O.A.C. 82; 2011 ONCA 840, refd to. [para. 60].

R. v. Pike (J.A.) (2010), 292 B.C.A.C. 66; 493 W.A.C. 66; 260 C.C.C.(3d) 68; 2010 BCCA 401, refd to. [para. 61].

R. v. Szostak (P.L.) (2014), 314 O.A.C. 89; 306 C.C.C.(3d) 68; 2014 ONCA 15, refd to. [para. 62].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 75].

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. 91].

R. v. O'Soup (K.R.) (2011), 385 Sask.R. 2; 536 W.A.C. 2; 2011 SKCA 97, refd to. [para. 102].

R. v. Akapew (F.L.) (2009), 343 Sask.R. 155; 472 W.A.C. 155; 249 C.C.C.(3d) 212; 2009 SKCA 137, refd to. [para. 102].

R. v. Keepness (D.L.) et al. (2010), 359 Sask.R. 34; 494 W.A.C. 34; 255 C.C.C.(3d) 457; 2010 SKCA 69, refd to. [para. 103].

R. v. Fulton (C.), [2012] O.A.C. Uned. 641; 105 W.C.B.(2d) 612; 2012 ONCA 781, refd to. [para. 103].

R. v. Larose (A.A.) (2013), 344 B.C.A.C. 159; 587 W.A.C. 159; 2013 BCCA 450, refd to. [para. 103].

R. v. Agyeman (J.K.), [2012] O.A.C. Uned. 757; 2012 ONCA 893, refd to. [para. 103].

R. v. Marriott (A.G.) (2014), 343 N.S.R.(2d) 39; 1084 A.P.R. 39; 309 C.C.C.(3d) 305; 2014 NSCA 28, refd to. [para. 106].

R. v. E.E.D. (2007), 304 Sask.R. 192; 413 W.A.C. 192; 2007 SKCA 99, refd to. [para. 107].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1)(a) [para. 22].

Counsel:

Morris Bodnar, Q.C., and Michael Nolin, for Frederick Junior Knife;

W. Dean Sinclair, Q.C., for Her Majesty the Queen.

These appeals were heard on January 19, 2015, by Richards, C.J.S., Lane and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On July 8, 2015, Lane, J.A., delivered the following written reasons for judgment for the court.