R. v. Natomagan (A.D.), 2012 SKCA 46

• Judge: Jackson, Smith and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 07, 2011
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 46;(2012), 393 Sask.R. 130 (CA)

R. v. Natomagan (A.D.) (2012), 393 Sask.R. 130 (CA);

    546 W.A.C. 130

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.068

Her Majesty the Queen (appellant) v. Ashton Dennis Natomagan (respondent)

(1811-CR; 2012 SKCA 46)

Indexed As: R. v. Natomagan (A.D.)

Saskatchewan Court of Appeal

Jackson, Smith and Herauf, JJ.A.

April 20, 2012.

Summary:

The accused pled guilty to sexual assault and breach of an undertaking. The offence was a violent, sexual attack in a park on a female teenager who was a stranger to the accused. The accused had a significant criminal record including break and enters, escapes, failure to obey court orders and, in 2003, sexual assault of a child causing bodily harm. The Crown applied for a dangerous offender designation (s. 753, Criminal Code).

The Saskatchewan Provincial Court, in a decision reported at (2010), 349 Sask.R. 161, held that a dangerous offender designation was not appropriate. The accused was declared a long-term offender (s. 753.1). A sentence of eight years was appropriate. The accused had served 20 months on remand. Appropriate credit for that was 35 months. The accused was therefore sentenced to 61 months' imprisonment. On his release, he was to be subject to eight years' supervision. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 6508.1

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Long-term offender - Legislation - Interpretation and application - The accused pled guilty to sexual assault causing bodily harm - He had a significant criminal record including break and enters, escapes, failure to obey court orders and sexual assault of a child causing bodily harm - The sentencing judge dismissed the Crown's application for a dangerous offender designation under s. 753 of the Criminal Code and, finding "a reasonable possibility of eventual control", declared the accused a long-term offender (s. 753.1), sentencing him to eight years' imprisonment and eight years of supervision on his release - The Crown appealed, asserting, inter alia, that the sentencing judge, in stating that the wording of s. 753.1(1)(c) indicated a "standard less than probable", had erred in law by lessening the stringency of the appropriate test and by acting on "a mere possibility or hope in treatment" - The Saskatchewan Court of Appeal dismissed the appeal - Both of those occurrences would have been errors in law if the sentencing judge had made them, but he had not - The Crown correctly noted that the jurisprudence pertaining to s. 753.1(1)(c) demanded "more than a theoretical possibility of control of risk in the community" - The sentencing judge instructed himself properly on that test - Nor had he applied a less stringent test, despite the words that he had used - There was evidence to support the sentencing judge's conclusion that the accused's risk to the community could be reasonably controlled - The court rejected the Crown's assertion that the evidence supported only the "possibility of change", not the "plausibility of it" - See paragraphs 28 to 46.

Criminal Law - Topic 6516

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Appeals - Scope of - The sentencing judge dismissed the Crown's application for a dangerous offender designation under s. 753 of the Criminal Code and, finding "a reasonable possibility of eventual control", declared the accused a long-term offender (s. 753.1) - The Saskatchewan Court of Appeal dismissed the Crown's appeal - The court rejected the Crown's argument that s. 753.1(1)(c) established a legal standard within the meaning of R. v. Biniaris (J.) and R. v. Araujo (A.) et al. (2000 S.C.C.) which expanded the scope of appellate review - If an offender appealed a dangerous offender designation, the standard of review was reasonableness, assuming that the sentencing judge had made no error with respect to the statement of the applicable legal test - Both the test to determine dangerousness under s. 753(b) and the test under s. 753.1(1)(c) required the sentencing judge to make a judgment about the offender's future behaviour - In both situations, the sentencing judge weighed the whole of the evidence in order to assess what would happen when the offender was released into the community - In relation to s. 753(b), the determination under s. 753.1(1)(c) was a fact to be found - Even assuming that s. 753.1(1)(c) established a legal standard as suggested by the Crown, the Crown could ask for no greater standard of review against which to measure the sentencing judge's determination of eventual control of risk within the community than on the basis of reasonableness - A finding that s. 753.1(1)(c) established a legal standard did not increase the scope of appellate review - See paragraphs 47 and 48.

Criminal Law - Topic 6516

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - General - Appeals - Scope of - The sentencing judge dismissed the Crown's application for a dangerous offender designation under s. 753 of the Criminal Code and, finding "a reasonable possibility of eventual control", declared the accused a long-term offender (s. 753.1) - The Crown appealed, asserting that it had a right of appeal under s. 759(2) on the ground that the sentencing judge's finding under s. 753.1(1)(c) of a reasonable possibility of eventual control of risk was unreasonable or was not supported by the evidence - In dismissing the appeal, the Saskatchewan Court of Appeal stated, "Without deciding the issue, it is questionable whether the Crown has a right of appeal that allows it to contest the reasonableness or the sufficiency of the evidence supporting a determination under s. 753.1(1)(c)." - The clear language of s. 759 was a difficult hurdle for the Crown to overcome - While the Crown was limited to appealing on a question of law under s. 759(2), an offender who was found to be a dangerous offender could appeal on any ground of fact or mixed law and fact as well as on a ground of law - Thus, the Code provided asymmetrical rights of appeal as between an offender and the Crown - An interpretation of ss. 759(1) and 759(2) that permitted the Crown to appeal "unreasonable" findings made under s. 753.1(1)(c) rendered both parties' rights of appeal essentially identical, despite the language of s. 759 and similar language in ss. 657 and 676 under which a convicted person had a right of appeal based on the reasonableness of the verdict or the sufficiency of the evidence while the Crown did not - Here, though, the question did not have to be decided because the sentencing judge's determination was reasonable and was supported by the evidence - See paragraphs 49 to 60.

Cases Noticed:

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 3].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 3].

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. 22].

R. v. Goforth (M.A.) (2007), 302 Sask.R. 265; 411 W.A.C. 265; 2007 SKCA 144, refd to. [para. 32].

R. v. Otto (M.E.) (2006), 279 Sask.R. 182; 372 W.A.C. 182; 2006 SKCA 52, refd to. [para. 32].

R. v. Dagenais (R.A.), [2004] 6 W.W.R. 75; 339 A.R. 132; 312 W.A.C. 132; 2003 ABCA 376, refd to. [para. 32].

R. v. McCallum (N.J.) (2005), 196 O.A.C. 101; 201 C.C.C.(3d) 541 (C.A.), refd to. [para. 32].

R. v. Muir (J.S.) (2003), 177 B.C.A.C. 246; 291 W.A.C. 246; 173 C.C.C.(3d) 75; 2003 BCCA 66, refd to. [para. 32].

R. v. J.S.M. - see R. v. Muir (J.S.).

R. v. Haug (D.W.) (2008), 307 Sask.R. 1; 417 W.A.C. 1; 2008 SKCA 23, refd to. [para. 32].

R. v. Redwood (F.) (2009), 337 Sask.R. 148; 464 W.A.C. 148; 2009 SKCA 113, refd to. [para. 32].

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. 38].

R. v. Higginbottom (C.) (2001), 150 O.A.C. 79; 156 C.C.C.(3d) 178 (C.A.), refd to. [para. 38].

R. v. Watetch (W.E.) (2009), 331 Sask.R. 11; 460 W.A.C. 11; 2009 SKCA 52, refd to. [para. 38].

R. v. Moosomin (L.W.) (2008), 320 Sask.R. 100; 444 W.A.C. 100; 239 C.C.C.(3d) 362; 2008 SKCA 169, refd to. [para. 38].

R. v. Lemaigre (G.L.), [2005] 7 W.W.R. 52; 254 Sask.R. 255; 336 W.A.C. 255; 189 C.C.C.(3d) 492; 2004 SKCA 125, refd to. [para. 39].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 47, footnote 5].

R. v. Barros (R.) (2011), 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 47, footnote 5].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 47].

R. v. K.R.S, [2005] 5 W.W.R. 82; 254 Sask.R. 221; 336 W.A.C. 221; 2004 SKCA 127, refd to. [para. 48].

R. v. Sakebow - see R. v. K.R.S.

R. v. C.P.S. (2006), 285 Sask.R. 35; 378 W.A.C. 35; 2006 SKCA 78, refd to. [para. 48].

R. v. Starblanket - see R. v. C.P.S.

R. v. Young (G.) (1998), 159 Nfld. & P.E.I.R. 136; 492 A.P.R. 136 (Nfld. C.A.), refd to. [para. 49].

R. v. Bouillon, [2006] Q.J. No. 6287, refd to. [para. 49].

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. 56].

R. v. C.B.H. (2004), 249 Sask.R. 131; 325 W.A.C. 131; 2004 SKCA 39, affing. [2003] Sask.R. Uned. 163; 2003 SKQB 305, refd to. [para. 58].

R. v. Johnson (A.P.) (2008), 253 B.C.A.C. 278; 425 W.A.C. 278; 2008 BCCA 149, leave to appeal denied, [2008] 2 S.C.R. ix; 390 N.R. 383, refd to. [para. 58, footnote 8].

Counsel:

Anthony Gerein, for the Crown;

Terra Lennox-Zepp, for the respondent.

This appeal was heard on September 7, 2011, by Jackson, Smith and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On April 20, 2012, Jackson, J.A., delivered the following reasons for judgment for the court.