R. v. Peekeekoot (A.H.), 2014 SKCA 97

• Judge: Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 30, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 97;(2014), 446 Sask.R. 22 (CA)

R. v. Peekeekoot (A.H.) (2014), 446 Sask.R. 22 (CA);

    621 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.041

Andy Harold Peekeekoot (appellant) v. Her Majesty the Queen (respondent)

(1796-CR; 2014 SKCA 97)

Indexed As: R. v. Peekeekoot (A.H.)

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.

September 23, 2014.

Summary:

The accused attacked two individuals with a knife and was subsequently convicted of assault with a weapon. The sentencing judge found that the accused fit the criteria for designation as a dangerous offender. He also concluded there was no reasonable possibility of managing the accused's risk in the community. Accordingly, the sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused attacked two individuals with a knife and was subsequently convicted of assault with a weapon - The accused was a 34-year-old Cree man - He grew up in very difficult circumstances and became involved with the criminal justice system at a young age - He had a criminal record which included over 40 offences, half of them involving violence - He had spent the large majority of his adult life behind bars - The sentencing judge found that the accused fit the criteria for designation as a dangerous offender - He also concluded there was no reasonable possibility of managing the accused's risk in the community - Accordingly, the sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration - The accused appealed, asserting that the judge erred by failing to take account of his First Nations heritage and experience as required by R. v. Gladue (J.T.) (SCC 1999) - The Saskatchewan Court of Appeal dismissed the appeal - It was not clear that the sentencing judge failed to consider the Gladue factors - However, even if he did, there was no substantial wrong or miscarriage of justice - There was less room for Gladue considerations to affect the outcome of a dangerous offender proceeding than was the case in conventional sentencing situations - In this case, the judge's oversight, if there was one, had no effect on the bottom-line question of whether there was a reasonable possibility of the eventual control of accused's risk in the community - See paragraphs 5 and 53 to 71.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused attacked two individuals with a knife and was subsequently convicted of assault with a weapon - The accused was a 34-year-old Cree man - He grew up in very difficult circumstances and became involved with the criminal justice system at a young age - He had a criminal record which included over 40 offences, half of them involving violence - He had spent the large majority of his adult life behind bars - The sentencing judge found that the accused fit the criteria for designation as a dangerous offender - He also concluded there was no reasonable possibility of managing the accused's risk in the community - Accordingly, the sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration - The accused appealed, asserting that the judge erred by failing to take account of his First Nations heritage and experience as required by R. v. Gladue (J.T.) (SCC 1999) - The sentencing judge refused to allow him a further adjournment of the dangerous offender proceedings - As a result of this, the accused was not represented by counsel in the late stages of the hearing - He submitted that all of this denied him an opportunity to present additional Gladue-type evidence - The Saskatchewan Court of Appeal dismissed the appeal - The court was not persuaded that the sentencing judge abused his discretion in proceeding as he did - Nor was the court persuaded that, by refusing the request for a further adjournment, the accused was improperly denied a fair hearing - See paragraphs 72 to 103.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - General - Considerations and conditions precedent - [See first Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - General - Considerations and conditions precedent - The accused attacked two individuals with a knife and was subsequently convicted of assault with a weapon - The accused was a 34-year-old Cree man - He grew up in very difficult circumstances and became involved with the criminal justice system at a young age - He had a criminal record which included over 40 offences, half of them involving violence - He had spent the large majority of his adult life behind bars - The sentencing judge found that the accused fit the criteria for designation as a dangerous offender - He also concluded there was no reasonable possibility of managing the accused's risk in the community - Accordingly, the sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration - The accused appealed, asserting that the sentencing judge acted unreasonably, or reached an unreasonable conclusion, by emphasizing what he determined to be a lack of motivation on the accused's part to change a long-standing pattern of criminal behaviour - He submitted that the judge should have inquired more deeply into why the accused was not motivated and should have placed more importance on those few instances in the past when there had been positive comment about the accused's approach to programming - The Saskatchewan Court of Appeal dismissed the appeal - The sentencing judge did not act unreasonably, or arrive at an unreasonable conclusion, by emphasizing the accused's lack of motivation to deal with his offending behaviour and its underlying causes - The experts agreed that motivation was the key to the accused being able to benefit from programming and control his criminality - In light of the evidence presented to him, the sentencing judge made no error in finding that the accused was not motivated to change and that, as a consequence, the prospects for managing his risk in the community were dim - See paragraphs 6 and 104 to 122.

Criminal Law - Topic 6504

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - General - Procedure - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention (incl. common law preventative detention) - General - Evidence and proof - [See second Criminal Law - Topic 5846.1 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence"- The accused attacked two individuals with a knife and was subsequently convicted of assault with a weapon - The accused was a 34-year-old Cree man - He grew up in very difficult circumstances and became involved with the criminal justice system at a young age - He had a criminal record which included over 40 offences, half of them involving violence - He had spent the large majority of his adult life behind bars - The sentencing judge found that the accused fit the criteria for designation as a dangerous offender - He also concluded there was no reasonable possibility of managing the accused's risk in the community - Accordingly, the sentencing judge found the accused to be a dangerous offender and sentenced him to an indeterminate period of incarceration - The accused appealed and sought leave to introduce a series of diplomas, some 23 in total, relating to the programming he completed between May 2010 and September 2013 while in custody - The diplomas related to "(a) a number of adult education programs including classes such as English, financial management, GED preparation, and keyboarding, (b) four apparently aboriginal-focused programs including a substance abuse program, a program called 'Honouring Your Wounds' and one called 'In Search of Your Warrior', (c) some parenting programs, and (d) a number of workplace safety programs." - The evidence was put forward to bolster the contention that the dangerous offender designation was not reasonable, particularly to the extent it was based on an assessment of the accused's motivation - The accused contended the evidence bore on his "treatability" in that it showed he was capable of successfully completing programming - He stressed that, within months of the dangerous offender designation, he had finished some courses - The Saskatchewan Court of Appeal refused to admit the fresh evidence - The court was not persuaded that the fact that the accused had completed these programs could cast any meaningful doubt on the sentencing judge's conclusion that an indeterminate sentence was appropriate - The sentencing judge did not say that the accused was not capable of completing programming - He said that the accused was not motivated to address his offending behaviour and, as a consequence, the prospects for managing risk were dim - See paragraphs 43 to 52.

Cases Noticed:

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, consd. [para. 4].

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. 25].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 40].

R. v. Sipos (J.P.) (2014), 460 N.R. 1; 320 O.A.C. 76; 2014 SCC 47, refd to. [para. 46].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 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. 56].

R. v. Standingwater (J.R.), [2013] 10 W.W.R. 277; 417 Sask.R. 158; 580 W.A.C. 158; 2013 SKCA 78, refd to. [para. 56].

R. v. Montgrand (A.J.) (2014), 433 Sask.R. 248; 602 W.A.C. 248; 2014 SKCA 31, refd to. [para. 62].

R. v. O.E.C. (2013), 294 Man.R.(2d) 122; 581 W.A.C. 122; 2013 MBCA 60, refd to. [para. 67].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 93].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 93].

R. v. Snow (D.A.) (2000), 137 B.C.A.C. 109; 223 W.A.C. 109; 2000 BCCA 113, refd to. [para. 93].

R. v. Antonius (M.A.) (2003), 182 B.C.A.C. 172; 300 W.A.C. 172; 2003 BCCA 142, refd to. [para. 93].

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 102].

R. v. Badger (S.D.) (2012), 405 Sask.R. 97; 563 W.A.C. 97; 2012 SKCA 119, dist. [para. 112].

Counsel:

Bob Hrycan, for the appellant;

Anthony Gerein, for the respondent;

Jonathan Rudin, for the intervenor, Aboriginal Legal Services of Toronto Inc.

This appeal was heard on May 30, 2014, by Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Richards, C.J.S., on September 23, 2014.