R. v. Sawchuk (R.), (2014) 442 Sask.R. 164 (CA)

• Judge: Jackson, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 10, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 442 Sask.R. 164 (CA);2014 SKCA 88

R. v. Sawchuk (R.) (2014), 442 Sask.R. 164 (CA);

    616 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.013

Robert Kenneth Sawchuk (appellant) v. Her Majesty the Queen (respondent)

(CACR2407; 2014 SKCA 88)

Indexed As: R. v. Sawchuk (R.)

Saskatchewan Court of Appeal

Jackson, Herauf and Whitmore, JJ.A.

August 25, 2014.

Summary:

The accused touched an adult female acquaintance while she slept and video recorded the assault with his cell phone. He pled guilty to sexual assault.

The Saskatchewan Provincial Court, in a decision reported at (2014), 437 Sask.R. 108, imposed a sentence of 30 months' incarceration. The court granted credit of seven months for time the accused served on remand on a 1:1 ratio. The accused appealed the sentence.

The Saskatchewan Court of Appeal dismissed the appeal with respect to the 30 month period of incarceration. However, the court increased the credit for remand time to 10.5 months on the basis of enhanced credit at the ratio of 1.5:1 for each day the accused served on remand. That left a period of 19.5 months' incarceration from the date of sentencing.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3.1) of the Criminal Code provided that "... if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8)" - The Saskatchewan Court of Appeal stated that "There are two statutory requirements under subsection 515(9.1). First, the justice must detain the accused in custody 'primarily because of a previous conviction of the accused'. Second, where this is the basis for detention, the justice 'shall state that reason, in writing, in the record'. It appears to be insufficient for the justice to simply conclude that he or she is detaining the accused primarily because of a previous conviction. The justice must state in writing that this is the reason for detaining the accused. The legislative intent behind the Truth in Sentencing Act that relates to transparency regarding the fitness of sentence, the amount of credit, and the reasons for the amount of credit, support an interpretation of subsections 719(3.1) and 515(9.1) that mandates the fulfillment of both requirements under subsection 515(9.1) in order for credit to be capped at a rate of 1:1" - See paragraphs 38 to 39.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The accused was sentenced to 30 months' incarceration, less seven months' credit (on a 1:1 ratio) for time served on remand - The sentencing judge determined that the accused was detained after a show cause hearing "primarily because of his previous criminal convictions" and the combination of ss. 719(3.1) and 515(9.1) of the Criminal Code precluded her from giving enhanced credit for remand time beyond the 1:1 ratio - On appeal, the Saskatchewan Court of Appeal increased the credit for remand time to 10.5 months on the basis of enhanced credit at the ratio of 1.5:1 - The Crown had conceded that the transcript of the bail hearing did not comply with the "in writing" requirement under s. 515(9.1) of the Code - Although the requirement that the accused was detained primarily because of a previous conviction appeared to have been met, the requirement that the reason for detaining the accused be stated in writing, in the record, was not met - Therefore, the accused was not precluded from being granted enhanced credit under s. 719(3.1) - Defence counsel had asked that the accused be given credit at a rate of 1.5:1 for part of his time on remand, because he was housed in an overflow unit which had no running water or baths - As well, the Crown had not challenged the inference that the accused had lost eligibility for parole or early release because of his pre-sentence detention - Those factors justified enhanced credit for remand time - See paragraphs 25 to 51.

Criminal Law - Topic 5932

Sentence - Sexual assault - The victim was asleep on her couch when the accused (who she knew) came into her home - He videotaped her and touched her body as she slept - The victim awoke and saw the accused standing over her with his camera phone - She grabbed the phone and threw it - She then ran to her bathroom and locked herself inside - The accused left - The video showed the accused touch the victim's breasts over her clothing, after which he focussed the camera on her crotch area - Her pants were fastened prior to the phone being set down by the accused - Shortly thereafter, the accused picked up the phone and returned the focus on the victim - At this point the video revealed that the victim's pants were undone, her shirt was pushed up and her stomach was exposed - The accused's hand was seen moving the victim's pants and panties - The accused moved the camera close to the open zipper to film inside the victim's underwear - The accused pled guilty to sexual assault - 55 years old - 39 prior convictions, including one prior sexual assault - The sentencing judge imposed a sentence of 30 months' incarceration, less credit of seven months (on a 1:1 ratio) for time served on remand - The accused appealed the sentence on the ground that it violated the principle of parity - The Saskatchewan Court of Appeal held that the sentence of 30 months' incarceration did not violate the principle of parity and was not demonstrably unfit - However, the court increased the credit for remand time to 10.5 months based on enhanced credit at the ratio of 1.5:1 - See paragraphs 11 to 24.

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See first Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 371 D.L.R.(4th) 581; 2014 SCC 26, refd to. [para. 9].

R. v. Carvery (L.A.) (2014), 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 371 D.L.R.(4th) 604; 2014 SCC 27, refd to. [para. 9].

R. v. T.T.L. (2012), 407 Sask.R. 12; 2012 SKPC 143, dist. [para. 11].

R. v. Michelin (O.A.) (2013), 434 Sask.R. 17; 2013 SKQB 390, refd to. [para. 12].

R. v. Cappo (T) (1993), 116 Sask.R. 15; 59 W.A.C. 15 (C.A.), refd to. [para. 14].

R. v. Roberts (W.S.) (1995), 128 Sask.R. 158; 85 W.A.C. 158 (C.A.), refd to. [para. 15].

R. v. Custer, 1998 SKCA (Sent.Dig.) 14, refd to. [para. 16].

R. v. Frank, 1998 SKCA (Sent.Dig.) 90, refd to. [para. 17].

R. v. Picton, 2002 SKCA (Sent.Dig.) 9, refd to. [para. 18].

R. v. M.J.H. (2004), 257 Sask.R. 1; 342 W.A.C. 1; 2004 SKCA 171, refd to. [para. 19].

R. v. Iron (L.J.) (2005), 269 Sask.R. 51; 357 W.A.C. 51; 2005 SKCA 84, refd to. [para. 20].

R. v. Charles (A.D.) (2008), 311 Sask.R. 216; 428 W.A.C. 216; 236 C.C.C.(3d) 92; 2008 SKCA 108, refd to. [para. 21].

R. v. Kasokeo (J.R.) (2009), 324 Sask.R. 156; 451 W.A.C. 156; 2009 SKCA 48, refd to. [para. 22].

R. v. Nevills (J.), [2014] O.A.C. Uned. 300; 2014 ONCA 340, consd. [para. 33].

R. v. Morris (K.A.) (2013), 305 O.A.C. 47; 282 C.R.R.(2d) 1; 2013 ONCA 223, refd to. [para. 34].

R. v. Lebrasseur (2013), 307 C.C.C.(3d) 312; 2013 QCCA 1432, consd. [para. 40].

R. v. Tully, 2014 ONSC 382, consd. [para. 46].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(9), sect. 515(9.1), sect. 719(3.1) [para. 27].

Counsel:

Todd Parlee, for the appellant;

Andrew Davis, for the respondent.

This appeal was heard on July 10, 2014, before Jackson, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Herauf, J.A., on August 25, 2014.