R. v. Toutsaint (J.), (2015) 467 Sask.R. 248 (CA)

• Judge: Richards, C.J.S., Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 29, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 467 Sask.R. 248 (CA);2015 SKCA 117

R. v. Toutsaint (J.) (2015), 467 Sask.R. 248 (CA);

    651 W.A.C. 248

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.062

Her Majesty the Queen (appellant) v. Joey Toutsaint (respondent)

(CACR2519; 2015 SKCA 117)

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

Saskatchewan Court of Appeal

Richards, C.J.S., Caldwell and Whitmore, JJ.A.

November 17, 2015.

Summary:

The relatively young aboriginal accused had a long record. On March 16, 2010, he was convicted of: (1) robbery; (2) assault peace officer; (3) threats; (4) obstruction; and (5) three breaches of recognizance, for failing to keep the peace and be of good behaviour, failing to abstain from the consumption of alcohol, and carrying a knife. These incidents occurred on July 25, 2009. The Crown applied to have the accused designated as a dangerous offender.

The Saskatchewan Provincial Court, in a decision reported at (2014), 455 Sask.R. 117, granted the application and imposed a determinate sentence, three years for the robbery, to be followed by a five year long-term supervision order. Regarding the remaining offences, the accused had completed his original sentence and had some small amount of time built up on remand, which the court credited as one to one time as the accused had voluntarily chosen segregation. Therefore, the court imposed 90 days' time served on the remaining offences, concurrent. The Crown appealed, submitting that the sentencing judge committed errors of law and ignored the evidence in reaching his conclusion that there was a reasonable expectation that a lesser measure than an indeterminate sentence would adequately protect the public against the commission by the accused of murder or a serious personal injury offence.

The Saskatchewan Court of Appeal allowed the appeal and imposed an indeterminate sentence.

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 6576 ].

Criminal Law - Topic 5846.1

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

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 6576 ].

Criminal Law - Topic 6574

Dangerous or long-term offenders - Detention - Sentencing - Considerations - [See Criminal Law - Topic 6576 ].

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention - Sentencing - Indeterminate v. determinate sentence - The Crown applied to have the relatively young aboriginal accused designated as a dangerous offender - On March 16, 2010, he had been convicted of: (1) robbery (predicate offence); (2) assault peace officer; (3) threats; (4) obstruction; and (5) three breaches of recognizance - The robbery was an alcohol fuelled knife-point robbery of strangers - The accused had a long record - The sentencing judge granted the application - In imposing a determinate sentence, the judge considered, inter alia, that the accused had only physically harmed someone twice in committing an offence outside prison: in 2002, at age 13, he shot a passerby in the hand with a pellet gun, and in 2008 he was arrested for assaulting his girlfriend in a fit of drunken jealousy - His justice history was almost entirely composed of offences involving justice workers, mostly guards at the various correctional facilities where he had spent most of his life - The accused was "a poster child for the Gladue/Ipeelee formula" and deserved another chance - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal and imposed an indeterminate sentence - Having found that the accused met the criteria for a dangerous offender designation, the sentencing judge still sought to determine whether the accused instead might meet the criteria for a long-term offender designation - By doing so, the sentencing judge committed an error of law by relying on repealed provisions of the Criminal Code and case law setting out a process rendered nugatory by amendments enacted in 2008 - Further, there was no evidence before the sentencing judge capable of supporting his finding that a lesser measure than indeterminate imprisonment could adequately protect the public from the very real risk to the life, safety and physical or mental well-being of other persons that the accused posed (Criminal Code, s. 753(4.1)).

Cases Noticed:

R. v. G.N.B. (2014), 446 Sask.R. 184; 621 W.A.C. 184; 2014 SKCA 112, refd to. [para. 12].

R. v. Steele (J.M.) (2014), 463 N.R. 125; 310 Man.R.(2d) 236; 618 W.A.C. 236; 2014 SCC 61, refd to. [para. 12].

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. 13].

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. 13].

R. v. Goforth (M.A.) (2007), 302 Sask.R. 265; 411 W.A.C. 265; 2007 SKCA 144, refd to. [para. 14].

R. v. D.J.S. (2015), 370 B.C.A.C. 57; 635 W.A.C. 57; 2015 BCCA 111, refd to. [para. 17].

R. v. Osborne (C.G.) (2014), 306 Man.R.(2d) 276; 604 W.A.C. 276; 2014 MBCA 73, refd to. [para. 17].

R. v. Ominayak (R.D.) (2012), 539 A.R. 88; 561 W.A.C. 88; 2012 ABCA 337, refd to. [para. 17].

R. v. J.T.M., [2012] 1 W.W.R. 527; 379 Sask.R. 211; 2011 SKPC 109, refd to. [para. 75].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 22].

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. 22].

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. 24].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753(4.1) [para. 11].

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Bruce K. Campbell, for the respondent.

This appeal was heard on October 29, 2015, by Richards, C.J.S., Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following reasons for decision for the court on November 17, 2015.