R. v. Lemaigre (G.L.), (2014) 445 Sask.R. 34 (PC)

• Judge: Ebert, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 09, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 445 Sask.R. 34 (PC);2014 SKPC 108

R. v. Lemaigre (G.L.) (2014), 445 Sask.R. 34 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.069

Her Majesty the Queen v. George Lambert Lemaigre

(Information No. 24483045; 2014 SKPC 108)

Indexed As: R. v. Lemaigre (G.L.)

Saskatchewan Provincial Court

Ebert, P.C.J.

May 9, 2014.

Summary:

Lemaigre, an Aboriginal male, was convicted in 2012 of assault causing bodily harm (Criminal Code, s. 267(b)), and failing to comply with a condition of his long term supervision order (s. 753.3(1)). The victim was Lemaigre's common law spouse. His record showed 53 convictions, including 23 convictions for violent offences, including 12 against his spouse. Lemaigre had been declared a long term offender in 2006 and had been sentenced to three years in custody followed by 10 years' supervision. He was released in 2009 and began his long term supervision order. In 2011, on two occasions, he breached a condition of his order that he have no contact with his spouse. The Crown applied to have Lemaigre declared a dangerous offender under s. 753(1) and given an indeterminate sentence.

The Saskatchewan Provincial Court found Lemaigre to be a dangerous offender, and sentenced him to an indeterminate sentence in a penitentiary for the charge of assault causing bodily harm. "This is a case where the extent of the supervision required to address his risk to re-offend violently is only of the kind that one finds in a federal institution." On the s. 753.3(1) charge, the Court sentenced him to 12 months' time served.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See second Criminal Law - Topic 6576 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - [See second Criminal Law - Topic 6576 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See second Criminal Law - Topic 6576 ].

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Considerations and conditions precedent - [See second Criminal Law - Topic 6576 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Personal injury offences - [See second Criminal Law - Topic 6576 ].

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Indeterminate vs. determinate sentence - The predicate offence, an assault causing bodily harm against his common law spouse, consisted of the accused punching her on the left side of her face - At the time, he was subject to a long term supervision order that included a condition of no contact with his spouse - The predicate offence was the thirteenth time he had assaulted his spouse and was his twenty-fourth conviction for violence since 1971 - The Saskatchewan Provincial Court concluded that the Crown had proven both ss. 753(1)(a)(i) and (ii) of the Criminal Code, and accordingly found that the accused was a dangerous offender - The predicate offence was proceeded by way of indictment, involved the use of violence and was punishable by a term not exceeding 10 years (s. 753(1)(a)) - His violent behaviour met the requirements of s. 753(1)(a)(i) of a pattern of repetitive behaviour by the offender and that the predicate offence was part of that pattern - Based on the accused's criminal history, his performance on the long term supervision order, the psychiatric assessment of his inability to address his long standing risk factors, the accused would fail to restrain his future behaviour and likely cause death or injury to another person in the future - Although not necessary, the Court briefly addressed s. 753(1)(a)(ii), and concluded that the Crown had also proven a pattern of persistent aggressive behaviour and that the pattern showed a substantial degree of indifference by the accused respecting the reasonably foreseeable consequences of his behaviour - He minimized his violence and entirely projected blame and responsibility onto his spouse and others - There were alcohol and other external factors - See paragraphs 116 to 148.

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Indeterminate vs. determinate sentence - The accused, an Aboriginal male, was convicted of assault causing bodily harm against his common law spouse while on a long term supervision order - He had now breached that order three times since his release in 2009 - The predicate offence was the thirteenth time he had assaulted his spouse and was his twenty-fourth conviction for violence since 1971 - The Crown applied to have the accused declared a dangerous offender and given an indeterminate sentence - The Saskatchewan Provincial Court, on the finding that the accused was a dangerous offender, concluded that there was no reasonable expectation that a sentence less than an indeterminate sentence would protect the public against commission of a serious personal injury offence, and accordingly sentenced the accused to an indeterminate sentence (Criminal Code, s. 753(4.1)) - In making that determination, the Court considered some 21 factors, including Gladue factors - In the end result, the Court concluded that "This is a case where the extent of the supervision required to address his risk to re-offend violently is only of the kind that one finds in a federal institution." - See paragraphs 149 to 161.

Cases Noticed:

R. v. Lemaigre (G.L.) (2002), 230 Sask.R. 262, 2002 SKQB 523, affd. (2004), 254 Sask.R. 255; 336 W.A.C. 255; 2004 SKCA 125, refd to. [para. 9].

R. v. Natomagan (A.D.) (2010), 349 Sask.R. 161; 2010 SKPC 7, refd to. [para. 112].

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. 113].

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. 113].

R. v. Green (J.L.A.) (2004), 254 Sask.R. 276; 336 W.A.C. 276; 2004 SKCA 126, refd to. [para. 113].

R. v. O.J.G. (2013), 405 Sask.R. 300; 563 W.A.C. 300; 2013 SKCA 10, refd to. [para. 113].

R. v. Gamble (M.W.) (2012), 404 Sask.R. 25; 2012 SKQB 249, refd to. [para. 113].

R. v. Downs (C.J.) (2012), 391 Sask.R. 240; 2012 SKQB 101, refd to. [para. 113].

R. v. Szostak (P.L.) (2014), 314 O.A.C. 89; 2014 ONCA 15, refd to. [para. 114].

R. v. Pike (J.A.) (2010), 292 B.C.A.C. 66; 493 W.A.C. 66; 2010 BCCA 401, refd to. [para. 118].

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. 123].

R. v. Bruneau (D.), [2009] B.C.T.C. Uned. 1089; 2009 BCSC 1089, refd to. [para. 124].

R. v. J.Y. (1996), 141 Sask.R. 132; 114 W.A.C. 132; 104 C.C.C.(3d) 512 (C.A.), refd to. [para. 142].

R. v. G.N.B. (2012), 406 Sask.R. 241; 2012 SKQB 397, refd to. [para. 142].

R. v. George (T.) (1998), 109 B.C.A.C. 32; 177 W.A.C. 32; 126 C.C.C.(3d) 384 (C.A.), refd to. [para. 143].

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. 143].

R. v. Downs (C.J.), [2013] 1 W.W.R. 397; 397 Sask.R. 83; 2012 SKQB 198, refd to. [para. 151].

R. v. Ipeelee (M.) (2012), 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. 152].

R. v. Ewenin (M.C.) (2009), 334 Sask.R. 61; 2009 SKQB 207, refd to. [para. 152].

R. v. Ben (B.) (2012), 395 Sask.R. 93; 2012 SKPC 52, refd to. [para. 152].

R. v. Harris (R.L.) (2011), 386 Sask.R. 216; 2011 SKPC 176, refd to. [para. 152].

R. v. McCallum (D.A.) (2012), 415 Sask.R. 1; 2012 SKPC 192, refd to. [para. 152].

R. v. McCallum (J.E.), [2011] B.C.T.C. Uned. 715; 2011 BCSC 715, refd to. [para. 152].

R. v. J.E.M. - see R. v. McCallum (J.E.).

R. v. Montgrand (A.J.) (2014), 433 Sask.R. 248; 602 W.A.C. 248; 2014 SKCA 31, refd to. [para. 153].

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 [1999] 15 C.R. 688, refd to. [para. 153].

R. v. Wright (M.G.) (2008), 317 Sask.R. 267; 2008 SKQB 268, refd to. [para. 154].

R. v. B.J.F.W., 2004 SKQB 268, refd to. [para. 154].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(1)(a)(i), sect. 753(1)(a)(ii) [para. 110].

Counsel:

J. Schmidt, for the Crown;

K. Srodulski, for the accused.

This application was heard at La Loche, Saskatchewan, before Ebert, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment, dated May 9, 2014.