R. v. Standingwater (J.R.),

• Jurisdiction: Saskatchewan
• Judge: Jackson, Ottenbreit and Caldwell, JJ.A.
• Neutral Citation: 2013 SKCA 78
• Court: Court of Appeal (Saskatchewan)
• Date: 01 November 2012
• Citation: (2013), 417 Sask.R. 158 (CA),2013 SKCA 78,[2013] 10 WWR 277,[2013] SJ No 438 (QL),417 Sask R 158,(2013), 417 SaskR 158 (CA),[2013] S.J. No 438 (QL),417 SaskR 158,417 Sask.R. 158

R. v. Standingwater (J.R.) (2013), 417 Sask.R. 158 (CA);

    580 W.A.C. 158

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.053

James Richard Standingwater (appellant) v. Her Majesty the Queen (respondent)

(1814-CR; 2013 SKCA 78)

Indexed As: R. v. Standingwater (J.R.)

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Caldwell, JJ.A.

July 17, 2013.

Summary:

The accused was convicted of assault, break and enter and assault causing bodily harm. He also pled guilty to three counts of breaching a recognizance and two counts of obstruction of justice. The Crown applied for an order that the accused be declared a dangerous offender.

The Saskatchewan Court of Queen's Bench, in a decision reported at 351 Sask.R. 96, allowed the application. The accused was declared a dangerous offender and was sentenced to imprisonment for an indeterminate period. The accused was prohibited from possessing firearms, crossbows, restricted weapons, ammunitions and explosives for life. The court issued an order authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - The accused appealed from a decision declaring him a dangerous offender and sentencing him to an indeterminate period of imprisonment - The court found that the trial judge erred in accepting expert evidence from Ms. Farden in a subject outside her qualification - However, in the particular circumstances of this matter, the error of admitting the testimony into evidence and the trial judge's limited reliance on it did not result in a substantial wrong or miscarriage of justice - The question was then whether an error of this nature called for appellate intervention regardless of its consequences - The Saskatchewan Court of Appeal held that there was ample support for the proposition that Canadian appellate courts had the power to cure errors of law made on a proceeding under Part XXIV of the Criminal Code so long as the error did not lead to a substantial wrong or miscarriage of justice - Although the trial judge erred in law by admitting and relying in part upon Ms. Farden's evidence, the court dismissed this ground of appeal because the error caused no substantial wrong or miscarriage of justice - See paragraphs 37 to 41.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See second Criminal Law - Topic 6512 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - The accused was convicted of assault, break and enter and assault causing bodily harm - He also pled guilty to three counts of breaching a recognizance and two counts of obstruction of justice - The offences were with respect to his common law spouse (Antoine) - The Crown applied for an order that the accused be declared a dangerous offender - The accused had a total of 70 convictions, many of which were violent or weapons-related offences committed against the same person: Antoine - The accused had been convicted of assaulting other people as well, both when he was sober and when he was intoxicated - He attacked his pregnant sister when she refused to give him the keys to the family truck - As a youth, he attempted to strangle a smaller boy, three years his junior - While on remand, he assaulted a shackled fellow prisoner - The trial judge allowed the application, declared him a dangerous offender, and sentenced him to an indeterminate period of imprisonment - The accused appealed, asserting that the trial judge erred when she failed to apply the principles set forth in R. v. Gladue (1999 SCC) - The Saskatchewan Court of Appeal dismissed the appeal - While a sentencing court might have no alternative but to separate an Aboriginal long-term offender from society for a significant period of time, when determining the appropriate periods of imprisonment and subsequent long-term supervision in the community under s. 753.1(3), the sentencing court had to take into account the Aboriginal status of the long-term offender for the purpose of determining the appropriate institutional and community-based programs intended to rehabilitate the offender so that the substantial risk of reoffending posed by the offender might be controlled in the community - In this case, the evidence was that there were few, if any, available Aboriginal-focused or even non-Aboriginal-focused means in the accused's community aimed at addressing the environmental, psychological and other circumstances which aggravated the nature and quality of the accused's risk of reoffending upon which to base a consideration of the Gladue principles in the determination required of the trial judge under s. 753.1(1)(c) - The trial judge did not err - See paragraphs 42 to 60.

Criminal Law - Topic 6502

Dangerous or long-term offenders - Detention - General - Considerations and conditions precedent - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - The accused was convicted of assault, break and enter and assault causing bodily harm - He also pled guilty to three counts of breaching a recognizance and two counts of obstruction of justice - The offences were with respect to his common law spouse (Antoine) - The Crown applied for an order that the accused be declared a dangerous offender - The accused had a total of 70 convictions, many of which were violent or weapons-related offences committed against the same person: Antoine - The accused had been convicted of assaulting other people as well, both when he was sober and when he was intoxicated - He attacked his pregnant sister when she refused to give him the keys to the family truck - As a youth, he attempted to strangle a smaller boy, three years his junior - While on remand, he assaulted a shackled fellow prisoner - The trial judge allowed the application, declared him a dangerous offender and sentenced him to an indeterminate period of imprisonment - The accused appealed, asserting that the trial judge erred when she rejected the possibility that he was a long-term offender because she erroneously rejected Dr. Wormith's opinion evidence - Dr. Wormith, a forensic psychologist, assessed the accused as having a high risk of violently reoffending, but not as a person befitting a dangerous offender designation - The Saskatchewan Court of Appeal dismissed the appeal - While a trial judge was not bound to accept any assessment, it was evident the trial judge properly considered and weighed Dr. Wormith's assessment having regard for its foundation, for the evidence bearing upon the subject and for the underlay of general principles at work in a Part XXIV proceeding and, after doing so, found more than a sufficient basis to disregard Dr. Wormith's conclusion that a long-term offender designation was appropriate - Her conclusion in this regard was entirely supported by the evidence - See paragraphs 14 to 23.

Criminal Law - Topic 6512

Dangerous or long-term offenders - Detention - General - Evidence and proof - The accused was convicted of assault, break and enter and assault causing bodily harm - He also pled guilty to three counts of breaching a recognizance and two counts of obstruction of justice - The offences were with respect to his common law spouse (Antoine) - The Crown applied for an order that the accused be declared a dangerous offender - The accused had a total of 70 convictions, many of which were violent or weapons-related offences committed against the same person: Antoine - The accused had been convicted of assaulting other people as well, both when he was sober and when he was intoxicated - He attacked his pregnant sister when she refused to give him the keys to the family truck - As a youth, he attempted to strangle a smaller boy, three years his junior - While on remand, he assaulted a shackled fellow prisoner - The trial judge allowed the application, declared him a dangerous offender and sentenced him to an indeterminate period of imprisonment - The accused appealed, asserting that the trial judge erred when she rejected the possibility that he was a long-term offender because she erroneously permitted Ms. Farden to give expert evidence in a subject outside her qualification as an expert - The Saskatchewan Court of Appeal found merit in the accused's assertion, but dismissed the appeal where there was no substantial wrong or miscarriage of justice - The trial judge received Ms. Farden's evidence about a "danger assessment scale" for spousal violence where 20 "lethality indicators" had been identified and examined the facts before her - She concluded that many of the factors enumerated by Ms. Farden were present - This led her to find a "high lethality risk" in the circumstances - This finding results from an error in law - While laterally related to the treatability of intimate partner offenders, the testimony treaded heavily into risk assessment and, in that it did, it fell wholly outside the boundaries of Ms. Farden's qualified expertise - For that reason, the evidence was not admissible - Furthermore, having received it, the trial judge should have given Ms. Farden's evidence little or no weight - The trial judge had no foundation upon which to assess efficacy of the "danger assessment scale" for spousal violence or the usefulness of the "lethality indicators" - Ms. Farden's testimony was potentially very prejudicial to the accused's position; however, in the particular circumstances of this matter, the error of admitting her testimony into evidence and the trial judge's limited reliance on it did not result in a substantial wrong or miscarriage of justice - See paragraphs 24 to 36.

Criminal Law - Topic 6513

Dangerous or long-term offenders - Detention - General - Psychiatric evidence - [See both Criminal Law - Topic 6512 ].

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Sentencing - Considerations - The accused was convicted of assault, break and enter and assault causing bodily harm - He also pled guilty to three counts of breaching a recognizance and two counts of obstruction of justice - The offences were with respect to his common law spouse (Antoine) - The Crown applied for an order that the accused be declared a dangerous offender - The accused had a total of 70 convictions, many of which were violent or weapons-related offences committed against the same person: Antoine - The accused had been convicted of assaulting other people as well, both when he was sober and when he was intoxicated - He attacked his pregnant sister when she refused to give him the keys to the family truck - As a youth, he attempted to strangle a smaller boy, three years his junior - While on remand, he assaulted a shackled fellow prisoner - The trial judge allowed the application, declared him a dangerous offender and sentenced him to an indeterminate period of imprisonment - The accused appealed, asserting that the indeterminate sentence was unreasonable - First, he was not like those offenders who had previously been designated as dangerous offenders and therefore should have been declared a long-term offender - Second, the trial judge did not adequately address the effectiveness of a s. 753.1 long-term supervision order in his circumstances - The Saskatchewan Court of Appeal dismissed the appeal - The accused's violent offending (particularly with respect to his former spouse), the high risk that he would violently reoffend (particularly with respect to his former spouse), his chronic alcohol addiction, his antisocial personality disorder and psychopathic tendencies, his impulsiveness, his lack of remorse and failure to accept moral culpability for his past offences, his poor prognosis for treatment, and his evident recidivist nature, were such that he was safely within the realm of those offenders who should receive an indeterminate sentence - See paragraphs 61 to 68.

Criminal Law - Topic 6575

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

Cases Noticed:

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 2].

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, refd to. [para. 13].

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. 20].

R. v. Badger (S.D.) (2012), 405 Sask.R. 97; 563 W.A.C. 97; 2012 SKCA 119, refd to. [para. 23].

Nystuen v. Vigoren et al. (2006), 279 Sask.R. 1; 372 W.A.C. 1; 266 D.L.R.(4th) 634; 2006 SKCA 47, refd to. [para. 25].

R. v. Abbey (W.) (2009), 254 O.A.C. 9; 246 C.C.C.(3d) 301; 2009 ONCA 624, refd to. [para. 25].

Parker v. Saskatchewan Hospital Association (2001), 207 Sask.R. 121; 247 W.A.C. 121; 203 D.L.R.(4th) 657; 2001 SKCA 60, refd to. [para. 30].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 30].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 30].

R. v. Haug (D.W.) (2008), 307 Sask.R. 1; 417 W.A.C. 1; 2008 SKCA 23, refd to. [para. 34].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 193 C.C.C.(3d) 354; 2005 SKCA 12, refd to. [para. 34].

R. v. Daniels (D.) (2011), 375 Sask.R. 1; 525 W.A.C. 1; 271 C.C.C.(3d) 339; 2011 SKCA 67, refd to. [para. 37].

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. 38].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 38].

R. v. McKenzie (1960), 31 W.W.R. 337, refd to. [para. 39].

R. v. Mitchell (S.K.) (2002), 162 B.C.A.C. 247; 264 W.A.C. 247; 161 C.C.C.(3d) 508; 2002 BCCA 48, affd. (2003), 309 N.R. 8; 186 B.C.A.C. 205; 306 W.A.C. 205; 2003 SCC 49, refd to. [para. 39].

R. v. Sipos (J.P.) (2008), 235 O.A.C. 277; 2008 ONCA 325, refd to. [para. 39].

R. v. Sipos (J.P.) (2012), 298 O.A.C. 233; 2012 ONCA 751, refd to. [para. 39].

R. v. Pike (J.A.) (2010), 292 B.C.A.C. 66; 493 W.A.C. 66; 260 C.C.C.(3d) 68; 2010 BCCA 401, refd to. [para. 39].

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. 42].

R. v. Stonechild (R.) (2008), 312 Sask.R. 86; 2008 SKQB 98, refd to. [para. 48].

R. v. Lemaigre (G.L.) (2004), 254 Sask.R. 255; 336 W.A.C. 255; 189 C.C.C.(3d) 429; 2004 SKCA 125, refd to. [para. 51].

R. v. Ewenin (C.M.) (2013), 414 Sask.R. 171; 575 W.A.C. 171; 2013 SKCA 50, refd to. [para. 51].

Counsel:

Donald J. Mullord, Q.C., and Lori Johnstone-Clarke, for the appellant;

W. Dean Sinclair, for the respondent.

This appeal was heard on November 1, 2012, by Jackson, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Caldwell, J.A., on July 17, 2013.