R. v. Knife (F.J.),

• Jurisdiction: Saskatchewan
• Judge: Popescul
• Neutral Citation: 2013 SKQB 197
• Citation: 2013 SKQB 197,(2013), 421 Sask.R. 133 (QB),421 SaskR 133,(2013), 421 SaskR 133 (QB),421 Sask.R. 133
• Date: 22 May 2013
• Court: Court of Queen's Bench of Saskatchewan (Canada)

R. v. Knife (F.J.) (2013), 421 Sask.R. 133 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JN.024

Her Majesty the Queen v. Frederick Junior Knife

(2010 CR No. 3; 2013 SKQB 197)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Popescul, C.J.Q.B.

May 22, 2013.

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 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. The accused had spent four years in presentence custody. After receiving credit for four years, the remaining sentence to be served was four years.

Criminal Law - Topic 5846.1

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

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 6574 ].

Criminal Law - Topic 5938

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

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 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 due to the aggravated assault conviction - The Saskatchewan Court of Queen's Bench held that the accused was not a dangerous offender - Aggravated assault was clearly a "serious personal injury offence" within the meaning of s. 752 - However, the Crown failed to establish either of the requisite patterns of behaviour referred to in ss. 753(1)(a)(i) and 753(1)(a)(ii) - The accused had only one previous adult criminal conviction for manslaughter, which occurred when he was 19 - That offence was a "senseless drunken argument gone horribly wrong" - The predicate offence occurred three years later, after the accused had embraced the gang lifestyle while in custody - Although both incidents had common aspects, the situations were sufficiently dissimilar so as not to constitute a pattern as contemplated by the legislation even when combined with the accused's "indiscretions" as a youth - See paragraphs 47 to 60.

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 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 due to the aggravated assault conviction - The Saskatchewan Court of Queen's Bench held that the accused was not a dangerous offender - While the aggravated assault was brutal, that did not necessarily bring it within the parameters of s. 753(1)(a)(iii), which required that the act be of such a brutal nature as to compel the conclusion that the accused's behaviour in the future was unlikely to be inhibited by normal standards of restraint - Although, when relying on s. 753(1)(a)(iii), the Crown was not required to establish a pattern of behaviour, contextual evidence was still relevant and admissible - Evidence of the accused's past, including his decision to leave his gang, was pertinent and relevant - The accused had turned his back on gang activity since 2008 - One gang-related vicious assault on a fellow inmate did not compel the conclusion required by s. 753(1)(a)(iii) in those circumstances - See paragraphs 61 to 73.

Criminal Law - Topic 6503.1

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Long-term offender - Defined - The 28 year old 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 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, having held that the accused was not a dangerous offender, found that the accused met the criteria to be designated a long term offender under s. 753.1(1) - The offence was serious, warranting a sentence in excess of two years - There was a substantial risk that the accused would reoffend - However, the accused, despite not having had any significant institutional programming, had abandoned his gang affiliations and had expressed a clear desire to turn his life around - There was a reasonable possibility of eventual control in the community - See paragraphs 80 to 90.

Criminal Law - Topic 6508

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

Criminal Law - Topic 6508.1

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Long-term offender - Legislation - Interpretation and application - [See Criminal Law - Topic 6503.1 ].

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - [See first Criminal Law - Topic 6503 ].

Criminal Law - Topic 6553

Dangerous or long-term offenders - Detention - Protection of the public - Brutality of predicate offence - [See second Criminal Law - Topic 6503 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Personal injury offences - [See first 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 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 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, having held that the accused was a long term offender under s. 753.1(1), sentenced him to eight years' imprisonment for aggravated assault and six months, concurrent, for common assault - Because the accused was aboriginal, the court took the Gladue factors into account - Significant aggravating factors were that the aggravated assault took place within a penitentiary, was particularly callous and was gang related - A message had to be sent that institutional violence was not worth the price - The accused had spent four years in presentence custody - Two-for-one credit would have the effect of releasing him immediately - The court applied one-for-one credit because the accused needed further incarceration during which intensive programming for his problems could be undertaken - The remaining sentence to be served was four years to be followed by a 10 year long term supervision order - See paragraphs 91 to 107.

Criminal Law - Topic 6575

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

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Indeterminate vs. determinate sentence - The 28 year old 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 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, having held that the accused was not a dangerous offender, stated that even if the accused had been so designated, an indeterminate sentence would not have been imposed because lesser measures, as contemplated by s. 753(4.1), could adequately protect the public - There was evidence that the accused's problems were treatable and that there was a reasonable expectation that the public could be protected by the imposition of something other than a dangerous offender designation - The accused had not been given an opportunity to attend substance abuse and violence prevention programming - He had expressed a willingness to take programming and modify his behaviour - He had turned his back on the gang culture - His partner was a realistic source of tangible pro-social support - See paragraphs 74 to 79.

Cases Noticed:

R. v. Peters (A.T.) (2011), 389 Sask.R. 14; 2011 SKQB 419, refd to. [para. 29].

R. v. Peters (A.T.) (2011), 373 Sask.R. 22; 2011 SKQB 2, refd to. [para. 39].

R. v. Warawa (R.A.) (2011), 519 A.R. 140; 539 W.A.C. 140; 278 C.C.C.(3d) 409; 2011 ABCA 294, refd to. [para. 46].

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. 50].

R. v. Kakakaway (R.E.), [2003] Sask.R. Uned. 135; 58 W.C.B.(2d) 310; 2003 SKQB 205, refd to. [para. 50].

R. v. Dow (D.R.) (1999), 120 B.C.A.C. 16; 196 W.A.C. 16; 134 C.C.C.(3d) 323 (C.A.), affd. (1999), 248 N.R. 406; 135 B.C.A.C. 319; 221 W.A.C. 319 (S.C.C.), refd to. [para. 51].

R. v. Langevin (1984), 3 O.A.C. 110; 45 O.R.(2d) 705; 8 D.L.R.(4th) 485 (C.A.), refd to. [para. 51].

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110; 2009 SKQB 306, affd. (2011), 366 Sask.R. 149; 506 W.A.C. 149; 2011 SKCA 14, refd to. [para. 53].

R. v. Dorfer (F.S.) (2013), 337 B.C.A.C. 309; 576 W.A.C. 309; 2013 BCCA 223, refd to. [para. 54].

R. v. Campbell (J.M.), [2004] O.T.C. 434; 120 C.R.R.(2d) 231 (Sup. Ct.), refd to. [para. 63].

R. v. Cote (K.J.) (2013), 416 Sask.R. 1; 2012 SKQB 508, refd to. [para. 77].

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; 171 D.L.R.(4th) 385, refd to. [para. 92].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 97].

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. 97].

R. v. Sayazie (C.A.) (2010), 346 Sask.R. 147; 477 W.A.C. 147; 2010 SKCA 14, refd to. [para. 97].

R. v. Moosomin (L.W.) (2009), 320 Sask.R. 100; 444 W.A.C. 100; 239 C.C.C.(3d) 362; 2008 SKCA 169, refd to. [para. 97].

R. v. Keshane (D.S.) (2005), 257 Sask.R. 161; 342 W.A.C. 161; 2005 SKCA 18, refd to. [para. 97].

R. v. Ochuschayoo (D.H.) (2004), 241 Sask.R. 284; 313 W.A.C. 284; 2004 SKCA 16, refd to. [para. 97].

R. v. Weasel (E.R.) (2003), 241 Sask.R. 161; 313 W.A.C. 161; 181 C.C.C.(3d) 358; 2003 SKCA 131, refd to. [para. 97].

R. v. Dufault (G.J.) (1995), 128 Sask.R. 235; 85 W.A.C. 235 (C.A.), refd to. [para. 97].

R. v. Keepness (S.C.) (2011), 379 Sask.R. 68; 2011 SKQB 293, refd to. [para. 97].

R. v. Jiang (X.) (2010), 518 A.R. 76; 2011 ABQB 182, refd to. [para. 97].

R. v. Key (C.G.) (2010), 351 Sask.R. 211; 2010 SKQB 95, refd to. [para. 97].

R. v. Desjarlais, 2008 ABQB 365, refd to. [para. 97].

R. v. Furi, [2006] S.J. No. 26 (Q.B.), refd to. [para. 97].

R. v. Lemaigre (G.L.), [2005] Sask.R. Uned. 120; 2005 SKQB 238, refd to. [para. 97].

R. v. Peters (A.T.) (2012), 412 Sask.R. 1; 2012 SKQB 426, refd to. [para. 102].

Counsel:

Maureen M. Longworth, for the Crown;

Michael D. Nolin, for Frederick Junior Knife.

This application was heard by Popescul, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on May 22, 2013.