R. v. Jiang, 2011 ABQB 182

Court of Queen ’ s Bench of Alberta Citation: R. v. Jiang, 2011 ABQB 182 Date: 20110323 Docket: 090560111Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Xutao Jiang Accused _______________________________________________________ Sentencing Reasons Delivered Orally by the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ [ 1 ] This decision is delivered orally, so this Court reserves the right to make any changes to the final form of Judgment. Any changes will not affect the substance of the Judgment. I. Introduction [ 2 ] A jury found Ms. Xutao Jiang guilty of the following charge, being:

That she, on or about the 9 th day of May, 2009, at or near Edmonton, Alberta, did unlawfully wound, maim, disfigure, or endanger the life of Tham Hon, thereby committing an aggravated assault, contrary to

Section 268 of the Criminal Code of Canada . [ 3 ] Based on the evidence, I ruled that she committed the aggravated assault on Tham Hon by striking him on the head with a wine bottle. II. Circumstances of the Offence [ 4 ] Ms. Jiang and Mr. Hon met in 2001. The parties acknowledge that they were in an intimate relationship and they lived together at one point. They acknowledge that they had sexual relations as late as March of 2009. [ 5 ] When they met, Ms. Jiang was married. Mr. Hon acknowledged that he knew she was married. Eventually, with Mr. Hon’s assistance, Ms.

Jiang’s husband and her daughter arrived in Canada, sponsored by Ms. Jiang. Mr. Hon assisted Ms. Jiang and her family settle into Edmonton by helping them find living accommodations and jobs. [ 6 ] Mr. Hon also assisted Ms. Jiang with her finances, as she was not conversant in English. Ms. Jiang alleged that Mr. Hon borrowed money from her, which Mr. Hon denied. Nothing turns on this, other than discussions about money were part of what allegedly took place at Mr. Hon’s home on the day in question. [ 7 ] On May 9, 2009, Mr. Hon testified that he got up early and went to McDonald's to meet his friend. Because Mr.

Hon was going to China on May 10, 2009, to get married, he and his friend went to Mr. Hon’s residence so he could give his friend the keys to his house. His friend was going to keep watch over his house while he was in China. [ 8 ] As Mr. Hon’s friend was leaving, Mr. Hon saw Ms. Jiang’s van in his driveway. Ms. Jiang got out of her van and entered Mr. Hon’s house. Mr. Hon testified that Ms. Jiang was at his home to bring him a present. Ms. Jiang did not disagree with this, but she testified that Mr.

Hon told her that he would give her something to indicate that he owed her money he allegedly borrowed from her. [ 9 ] They visited with each other, sharing small talk. Mr. Hon testified that his stomach was upset that day. There was a partially consumed bottle of wine in Mr. Hon’s kitchen, which found its way into the area in which they were sitting. Both parties denied having a drink. Because of his uneasy stomach, Ms. Jiang suggested that she apply pressure to an area on his right hand, which she had done to him before to make him feel better. [ 10 ] The testimony then diverged. Ms. Jiang testified that Mr.

Hon went to the washroom. When he returned he was sitting on a chair, with his jeans undone. He attempted to force Ms. Jiang to perform oral sex on him. She refused and defended herself by grabbing the wine bottle and then hitting him on the head with it. Mr. Hon testified that, as Ms. Jiang was putting pressure on his hand, he closed his eyes because the pressure she was applying caused him pain. He then blacked out for a second and something hit him on the head, so he stood up. Ms.

Jiang was holding the wine bottle and he realized that she had struck him with it. [ 11 ] This Court finds that there is no air of reality to Mr. Hon’s story. This Court accepts Ms. Jiang’s story as to how events unfolded on the afternoon of May 9, 2009. That, however, does not derogate from the offence of which the jury found Ms. Jiang guilty. The jury found Ms. Jiang guilty of aggravated assault. [ 12 ] By finding her guilty, the jury did not accept that she was acting in self-defence. Based on the facts which this Court has found, although Ms.

Jiang was acting in self-defence, the aggravated assault she committed on Mr. Hon was that she used more force than was necessary to prevent the assault he was committing on her.

III. Circumstances of Ms. Jiang [ 13 ] Ms. Jiang is 42 years old. She was born and raised in Louyan, China. Both of her parents are university-educated and have taught at the university level. Ms. Jiang experienced a loving and supportive childhood and remains in contact with her family via the internet between her annual visits to China. [ 14 ] Ms. Jiang is married and the couple has one daughter [1] . Ms. Jiang first came to Canada in March of 2000 as part of the Chinese Synchronized Swim Team, which was training with the Canadian Synchronized Swim Team. Ms. Jiang was the team’s Massage Therapist.

While in Canada, Ms. Jiang decided to defect from China and approached Immigration Officials to apply for refugee status. Because of her defection, the Chinese Government required her family to report any communication they had with her. As a result, she had very limited contact with them. As well, she was unable safely to travel back to China until 2005 following her becoming a Canadian Citizen. As mentioned earlier, her husband and daughter moved to Canada in 2003 under her sponsorship. [ 15 ] Ms. Jiang’s husband remains supportive of her although he did not know the extent of her relationship with Mr.

Hon. [ 16 ] Ms. Jiang has a nutrition and physical therapy diploma which she received in 1992. She has been employed in Canada since her defection. Since June 7, 2004, Ms. Jiang has been working for McKesson Canada as a Warehouse Worker Level II. Her employer advised that her position is secure. She also continues to work part-time as a massage therapist from her home. She has an income of up to $5000 per month and is responsible for making monthly mortgage payments of $2500. Not surprisingly, she has credit card debts and legal fees totaling approximately $26,000. [ 17 ] Ms.

Jiang has never had an occasion to attend any type of counseling or treatment and, because of her allergy to alcohol, she does not drink and has never used illicit drugs. [ 18 ] The pre-sentence report was prepared in preparation for the sentencing hearing and reports that, “it is the writer’s opinion that Xutao Jiang is a suitable candidate for community supervision.” However, s. 742.1 of the Criminal Code of Canada eliminates the availability of conditional sentences for serious personal injury offences. That

section was proclaimed in force on July 2, 2008, and this offence was committed on May 9, 2009. Accordingly, a conditional sentence is not available to Ms. Jiang. [ 19 ] As well, Ms. Jiang is not entitled to a conditional or absolute discharge because of the Criminal Code s. 30 which excludes from that type of sentence, “an offence punishable by imprisonment for 14 years.” The offense of aggravated assault is one of those offenses. IV. Determination of a Fit Sentence [ 20 ] When this Court imposes a sentence, it must abide by the principles outlined in

Part XXIII of the Criminal Code of Canada , R.S. c. C-34 (the “ Code ”). Code s. 718.1 provides: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 21 ] In R. v. Arcand , 2010 ABCA 363 , the Alberta Court of Appeal recently provided us with an explanation of many of the principles that the Code outlines. With respect to Code s. 718.1, the court said at paras. 57 and 58:

57 What is meant by “gravity of the offence”? This concept is directed to what the offender did wrong. It includes two components:(1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. What influences that analysis apartfrom the degree of injuriousness inherent in the crime itself? The answer lies in s. 718.2. ... 58 The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness orwilful blindness associated with the actus reus of the crime committed.

For this assessment, courts are able to draw extensively oncriminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater themoral culpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the timeof commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affectingculpability. These might relate, for example, to the offender's personal circumstances, mental capacity or motive for committing thecrime.

Where else does the Code provide for an offender's degree of responsibility generally to be taken into account? Here, too, theanswer takes us to s. 718.2. [22] Code s. 718.2 goes on to provide that courts must consider aggravating and mitigating circumstances and other principlesmore thoroughly discussed in Arcand at paras. 60-62. The Arcand court concludes this portion of its discussion at para. 63 and 65 withthe following: 63 ...

The object of the sentencing exercise is to draw on all sentencing principles in determining a just and appropriate sentencewhich reflects the gravity of the offence and the degree of moral blameworthiness of the offender. ... 65 ... Nothing is more important than the proportionality principle. [23] What did the Arcand court mean by “moral blameworthiness”? It said at paras. 48 and 49 [footnotes excluded]: 48 Proportionality is based on a simple, yet compelling, premise.

The severity of sanction for a crime should reflect the overalldegree of moral blameworthiness, that is the seriousness, of the criminal conduct. And that is properly measured by two things: thegravity of the offence and the offender's degree of responsibility.

Or to put it the way that Andrew von Hirsch and Andrew Ashworthhave done: The principle of proportionality requires the severity of penalties to be determined by reference to the seriousness of crimes. 49 In other words, sanctions should be scaled according to the seriousness of the criminal conduct. [24] The Arcand court at paras. 50-51, went on the to explain how severely crimes should be sanctioned relative to each other,which it termed ordinal proportionality, and identifying categories within an offence based on the varying degrees of seriousness, whichit termed cardinal proportionality.

Both aspects of proportionality require courts to undertake a comparison. Thus, when one assessesmoral blameworthiness, other cases will assist courts in this analysis. [25] Aggravated assault is not unlike manslaughter, in the sense that there are degrees of aggravated assault from the near accidentto the extremely serious. As Chief Justice Fraser stated in R. v. K.K.L. (1995) 1995 ABCA 196 , 165 A.R. 375 at para. 6-7(C.A.) [footnotes omitted]: 6 ... Different degrees of moral culpability attach to each along a continuum within that spectrum.

It is precisely because a sentencefor manslaughter can range from a suspended sentence up to life imprisonment that the court must determine for sentencing purposeswhat rung on the moral culpability ladder the offender reached when he committed the prohibited act. The purpose of this exercise is toensure that the sentence imposed fits the degree of moral fault of the offender for the harm done.

In the case of aggravated assault, the statutory sentences range from a suspended sentence to 14 years imprisonment. [26] The Crown and the accused provided this Court with a number of cases. Like the very able counsel they are, counseldistinguished each case from the case with which we are dealing, based on its facts. However, the cases are useful inasmuch as theyassist us in their analyses. [27] In R. v.

Belcourt, 2010 ABCA 319, the Alberta Court of Appeal reduced the trial judge’s sentence of 9 months imprisonmentto be served in a psychiatric facility for aggravated assault, followed by 6 months probation, to time served of 4 ½ months and 2 yearsprobation. The accused hit the complainant on the head 4 times with a frying pan. The complainant suffered cuts to his head that requiredstitches and a broken arm. The attack was an unprovoked, surprise attack.

The Alberta Court of Appeal found that the trial judgecommitted an error in principle by emphasizing denunciation and deterrence and not giving sufficient weight to the accused’s mentalillness. This factor was important when assessing the accused’s moral blameworthiness. [28] R. v. Dosser, 2010 ABCA 128 was a case of physical child abuse. The accused was convicted of aggravated assault.

TheAlberta Court of Appeal upheld the trial judge’s sentence of 90 days imprisonment to be served intermittently and one year probation.The parties agreed that the accused was immature and unskilled, acted out of emotional upset, frustration or temper and did not fullyappreciate the serious injuries which might result. The accused had a positive pre-sentence report. The Alberta Court of Appeal also gavedeference to the trial judge’s consideration of the severity of the injury that the accused caused as a factor.

The trial judge rejected theaccused’s request for a conditional sentence, as it would not serve the principle of general deterrence. The Alberta Court of Appealagreed. [29] In R. v. Pulido, 2010 ONSC 3143, the accused got into a bar fight. He was convicted of aggravated assault after hittinganother patron with a beer bottle after he was “provoked to some degree.” The Ontario Superior Court of Justice sentenced the accusedto a intermittent sentence of 90 days. The accused had a previous conviction for assault causing bodily harm.

The court noted at para. 19,that “the case law has established, in cases involving serious violence courts will generally impose a sentence of incarceration in order tofulfill the goals of denunciation and deterrence.” In Pulido, that parties agreed that incarceration was required. The court imposed thesentence after considering the aggravating and mitigating factors, and the accused’s personal situation. [30] In R. v. Murphy (1998), 169 N.S.R. (2d) 130 (S.C.), the court accepted the joint submission of a $1,500 fine and 12 monthsprobation. The accused plead guilty to the charge of aggravated assault.

The charges arose out of a bar fight in which the accused was adoorman. After being threatened by the complainant, the accused pushed the complainant, who fell to the ground and sustained headinjuries. The court found at para. 5, that the accused “did not intend to cause any harm to the victim, but was instead reacting to theprovocation of the threat...” [31] In R. v. Hein (1997), (MB CA), 115 Man. R. (2d) 157 (C.A.), the Manitoba Court of Appeal reduced theaccused’s sentence from 2 years less a day to 90 days to be served intermittently.

The “unusual” set of circumstances of this caseinvolved an access issue between the father of the child and the grandchild’s maternal grandmother. The grandmother was trying to forceher way into the home, when the child’s mother forced the grandmother out of the house with a baseball bat. When the grandmotherreturned, the father struck the grandmother with the baseball bat. The Manitoba Court of Appeal said, at para. 8: No one can condone or minimize the seriousness of what transpired.

Nonetheless when one recognizes that there was real provocation(although not in the legal sense) and when one considers the positive pre-sentence reports of the probation officer and the examiningpsychologist, in light of the facts that the appellant has no previous criminal involvement and that he is a non-violent young man tryinghis best to upgrade his own skills and education while caring for his family, then one must come to the conclusion that the learned trialjudge failed to adequately consider the special circumstances of this case and that he imposed a sentence that was unfit.

No interest ofsociety will be served by two years of imprisonment; no specific deterrence is called for and there is no pressing need for rehabilitation. [32] In R. v. Rahme, 2010 ABQB 579, the court sentenced the accused to 15 months incarceration for assault with a weapon, to beserved by way of a conditional sentence. The circumstances occurred during a bar fight in which the accused hit the complainant with abeer bottle. As in the case with which we are dealing, the pre-sentence report stated that the accused was a suitable candidate forcommunity supervision.

[33] Rahme is important for many reasons. It outlines the seriousness of the offence of aggravated assault, by quoting the AlbertaCourt of Appeal decision in R. v. Bunes (1999), 1999 ABCA 29 , 232 A.R. 152 (C.A.). The Alberta Court of Appeal overturnedthe conditional sentence that the trial judge imposed and substituted an 18-month custodial sentence. The facts in that case involved a barfight and beer bottles.

The Court of Appeal in Bunes at para. 8 said: Given the serious offence, that is, aggravated assault, and the circumstances surrounding the offence, we are of the view that aconditional sentence was not a fit sentence. It is not proportional to the gravity of the offence and it is of little deterrence to therespondent ... Here the broken bottle, then, was used like a knife.

As well, the trial judge, in our view, placed inappropriate emphasis onhis view that incarceration would damage the respondent. [34] The Rahme case provided other examples of cases involving weapons and knives and concluded that the accused before it,had committed a less serious offence than those in the other cases because the accused did not break the bottle and use it as a knife-likeweapon and he did not carry a knife before the fight broke out. As well the injuries that Mr. Rahme suffered were not as serious as thosein the other cases. [35] R. v.

Hilderman, 2005 ABCA 249, was the case involving a group of individuals who committed an aggravated assault on ahomeless man. The accused was sentenced to 2 years imprisonment. The real argument on appeal concerned the issue of credit for timeserved during the interim release stage. That is not germane to the case with which this Court is dealing. The Court of Appeal dismissedthe sentencing appeal. What is important in this case, is that the Alberta Court of Appeal did not overturn the trial judge’s finding that theaccused were rehabilitated at the time of sentencing. [36] R. v.

Perepelecta, 2004 ABPC 88 was yet another case involving a beer bottle in an aggravated assault situation. The courtprovides a survey of Alberta Court of Appeal decisions that deal with sentences following a conviction of aggravated assault. Theyinclude Bunes, referred to above, as well as the following: R. v. Huynh, [1996] A.J. No. 448 in which the accused was sentenced to 22 months incarceration. The court found, in that case that theattack “involved some pre-meditation and bore overtones of vigilantism.” R. v. Berry, [1998] A.J.

No. 436, in which the trial judge imposed a conditional sentence of 2 years less a day, for an unprovoked assaulton an unarmed man. The Alberta Court of Appeal found that the accused would pose a danger to the community and imposed a sentenceof 2 years less a day incarceration. R. v. Perks, [1999] A.J. No. 822, the Alberta Court of Appeal upheld the trial judge’s imposition of a sentence of incarceration of 2 yearsless a day. The trial judge characterized the assault as “a vicious, unprovoked attack in which the victim suffered puncture wounds whichresulted in scars.” R. v. McNally, [1999] A.J.

No. 1071 in which the Alberta Court of Appeal said that 15 months incarceration would be appropriate for anunprovoked, violent assault in a bar that results in serious injuries to the complainant. [37] The Perepelecta court at para. 25, found that the accused’s offence was “best characterized as an impulsive act as opposed topremeditated or planned.” It went on to say: She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms.

Perepelecta's relative degree of moralculpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this. Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit and proper sentencein that case.

[ 38 ] In R. v. Puckett , 2007 ABCA 227 , the Alberta Court of Appeal upheld the trial court’s sentence of 2 years less a day to be served by way of a conditional sentence for aggravated assault. The accused stabbed the complainant when the complainant arrived to pick up his daughter pursuant to a sole care and custody order. He was stabbed in the neck from behind. The Court of Appeal said at para. 10: The sentencing judge commented that the range of sentences imposed by courts for aggravated assault is very broad, because the sentences are fact driven and situation specific.

He found that the respondent was not a danger to the safety of the community. There was no hint of violent tendency in her background. He was satisfied that event was the tragic result of a confluence of circumstances entirely unlikely to be duplicated. [ 39 ] In R. v. Tecomba , 2003 ABCA 304 , the court dismissed the appeal of a sentence of 30 months for aggravated assault. The accused stabbed the complainant in the back after the complainant made sexual advances towards the accused.

The court said at para. 2, “At trial she argued self defence but this was rejected as the appellant did not pursue the option of simply leaving.” It should be noted that the accused had 15 previous convictions that involved violence. [ 40 ] This Court asked counsel to address the issue of whether it would be appropriate for this Court to suspend Ms. Jiang’s sentence and, in the meantime, impose conditions of probation on her. Counsel provided this Court with 3 cases. R. v.

Emond , 2010 SKCA 148 is useful only to the extent that the Saskatchewan Court of Appeal did not overturn the trial judge’s imposition of a suspended sentence and an 18-month probationary order for aggravated assault. [ 41 ] R. v. Peters , 2010 ONCA 30 , involved an aboriginal offender who had plead guilty. The fact of the offender’s aboriginal ancestry alone, makes this case distinguishable from the case with which this Court is dealing.

Furthermore, the court noted in that case that the accused had a “difficult and disheartening upbringing in a home of violence and alcohol abuse” and that she “had problems with alcohol and anger management.” Ms. Jiang had neither of those problems. [ 42 ] In R. v. Desjarlais , 2006 BCSC 888 , the court gave suspended sentences to 3 accused who were convicted of assault.

The 2 individuals convicted of aggravated assault received custodial sentences. [ 43 ] Counsel who ably argued this case pointed out that none of the cases they provided to this Court is on all fours with the case with which this Court is dealing. Not surprisingly, they distinguished the cases to which this Court has referred on some basis or another. Importantly, Mr. Gregory pointed out that it is not the role of this Court to dissect the cases and try to layer on aspects of those cases on to the case with which this Court is dealing.

This is in keeping with the British Columbia Court of Appeal’s statement in R. v. Chinneck , 2005 BCCA 346 at para. 17 , when it said: Although the cases cited by the appellant are relevant in a general sense, each case must be assessed on its particular facts. It is not useful to list and compare between cases the discrete aggravating and mitigating factors and to assign a sentence based on the presence or absence of one or more of them. To do so lends an unrealistic and unwarranted air of objective measurement to the process. That is not a proper approach.

The sentencing judge in this case considered all of the relevant sentencing factors, aggravating and mitigating. He was entitled to weigh them and to give such weight to them in exercising his discretion as he saw fit. This Court will address what it sees as the importance of these cases in a moment. 1. Crown’s Position on Sentence [ 44 ] Based on the factors set forth in the Code and the

interpretation of those factors as set forth in Arcand the Crown seeks a custodial sentence of 12 months. 2. Ms. Jiang’s Position

[ 45 ] Based on those same factors, Ms. Jiang asks this Court to impose an intermittent custodial sentence (served on weekends), plus a probation order. 3. Aggravating and Mitigating Circumstances [ 46 ] Code s. 718.2(

a) says that the court must take into consideration the fact that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ...” [ 47 ] Ms. Jiang does not have a criminal record. She has been regularly employed in Canada since her defection from China in 2000, although her employment has not involved her training as a nutritionist and physical therapist. She has recently started to work as a massage therapist. Her employer advises that her employment is secure. Ms. Jiang contributes substantially to her home finances.

She does not consume alcohol or illicit drugs. [ 48 ] While one can express certain thoughts about Ms. Jiang’s infidelity over a period of nine years, it is not a crime and, at worst, it is a neutral factor. A mitigating factor is that her husband remains supportive of her and feels that she deserves a second chance. [ 49 ] The primary aggravating factor relates to the offence. It is aggravated assault and the courts have recognized that this is a serious offence. This Court has already mentioned the fact that the force Ms. Jiang used in defending herself was excessive in the circumstances.

Code s. 718.2 says that the sentencing court must look at relevant aggravating or mitigating circumstances “relating to the offence.” In other words, what caused Ms. Jiang to commit the offence in the first place? This Court has found that Ms. Jiang committed the aggravated assault on Mr. Hon because he was attempting to force her to perform oral sex on him.

Thus, even though the offence itself is an aggravating factor, the circumstances relating to the offence make it less so and, in fact, are a mitigating factor. [ 50 ] An aggravating factor to which courts usually refer is the lack of remorse that an accused shows or expresses. In this case, however, the pre-sentence report indicates that Ms. Jiang presented as the victim and that she was acting in self-defence. That may be so, but the jury has found her guilty of aggravated assault nonetheless and this Court must sentence on that finding.

Thus, this Court finds that this is an aggravating factor, but the weight to which it will give this factor is not as great as in other situations because of the particular circumstances of this case. The “aggravated” portion of the assault was that she used excessive force when she was defending herself. [ 51 ] All of the cases that the Crown and Ms. Jiang provided to this Court relate to the offence of aggravated assault. These cases are of assistance to this Court inasmuch as they provide a range of sentence depending on the severity of the incident and the accused’s personal circumstances.

In other words, they assist this Court in establishing the accused’s moral culpability. The sentences range from a suspended sentence with probation, a fine and probation, and incarceration ranging from 90-days intermittent to 30-months. It should also be noted that the “Grid” in Edward L. Greenspan, Marc Rosenberg & Marie Henein, Martin’s Annual Criminal Code 2011 (Aurora: Canada Law Book, 2010) says that this Court could also impose a suspended sentence, or a fine alone. [ 52 ] From a review of the various cases that counsel provided to this Court, it is clear that most are distinguishable. Ms.

Jiang does not suffer from a mental illness and the assault did not occur in a bar during a bar room brawl. She did not break the wine bottle and use it as a weapon and it did not involve a domestic dispute. There was no pre-meditation involved in this incident. [ 53 ] It is similar to some of the cases in that this Court found that Mr. Hon provoked the assault (by attempting to commit a sexual assault on Ms. Jiang), the assault was an isolated incident and Ms.

Jiang has a positive pre-sentence report. [ 54 ] All of this takes us back to the principles on which this Court must base its determination of a fit and proper sentence. [ 55 ] We have focused on the aggravating and mitigating circumstances, but Code s. 718.2 points to other principles that this Court

must consider, being: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, ... As well, this Court must be aware of the overriding principles that a court must consider, which are contained in Code s. 718, which provides: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; ... (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 56 ] What is Ms. Jiang’s degree moral blameworthiness? The offence of aggravated assault is serious and one that society considers particularly harmful. Parliament set the maximum penalty for this offence to be 14 years. When one considers Ms. Jiang’s moral blameworthiness, Arcand tells us that we must, among other things, consider her “motive for committing the crime.” The motive, in this case, was to resist Mr. Hon’s attempt at having her perform oral sex on him.

While the means and force Ms. Jiang used was excessive, which increases her degree of moral culpability, her motive was justified; to a degree. [ 57 ] When one examines the cases that counsel provided to this Court, one sees that Ms. Jiang’s striking Mr. Hon with the wine bottle was not on serious end of the aggravated assault scale. He suffered a cut to his head that required stitches. Although he had some bleeding to his brain which required him to stay in the hospital for 2 days, there was no evidence presented to this Court that he has any residual effects. Ms.

Jiang did not attempt to use the bottle as a knife-like weapon by smashing it and attacking Mr. Hon with it. By explaining the assault in this way, this Court does not intend to derogate from the seriousness of the offence. This Court is merely providing these illustrations in the context of analyzing Ms. Jiang’s moral blameworthiness. [ 58 ] This Court finds that Ms. Jiang poses no threat to the community. The mere fact that she has gone through a criminal trial and that a jury of her peers has found her guilty of aggravated assault show her and the community that it denounces what she did.

As well, this Court doubts that it will ever see Ms. Jiang in the courts again. Like Hein “no specific deterrence is called for and there is no pressing need for rehabilitation.” [ 59 ] This case is particularly difficult, as Mr. Hon was attempting to commit a sexual assault on Ms. Jiang. A person should be

[59] This case is particularly difficult, as Mr. Hon was attempting to commit a sexual assault on Ms. Jiang. A person should beable to defend herself from an attempted assault that violates her sexual integrity. However, this Court is not in a position to question thejury’s finding that Ms. Jiang committed an aggravated assault on Mr. Hon. Again, this Court has found that she committed thisaggravated assault on Mr. Hon by using excessive force whilst trying to defend herself. As such, this Court must sentence her on thejury’s finding. Accordingly, this Court must consider general deterrence and denunciation.

It cannot condone the use of excessive force,inasmuch as this is prohibited by the Code. [60] Does a non-custodial sentence meet these objectives? The Supreme Court of Canada’s decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, is often cited for its analysis of the conditional sentence regime. However, it is equally instructive on thedifference between what might at first blush appear to be similar sentences; conditional sentence and a suspended sentence withprobation.

The court said at para. 23, “While a suspended sentence with probation is primarily a rehabilitative sentencing tool, theevidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.” It went on tosay at para. 35: ... [I]t is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation,notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. [61] Earlier, the Proulx court at para. 30 addressed the effect of probation orders on the notions of denunciation and deterrence,when it said: ...

Parliament has mandated that certain non-dangerous offenders who would otherwise have gone to jail for up to two years now servetheir sentences in the community. If a conditional sentence is not distinguished from probation, then these offenders will receive what areeffectively considerably less onerous probation orders instead of jail terms. Such lenient sentences would not provide sufficientdenunciation and deterrence, nor would they be accepted by the public.

Section 718 provides that the fundamental purpose of sentencingis "to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society". Inadequate sanctions underminerespect for the law. ... [62] As mentioned earlier, Parliament has eliminated this Court’s discretion to impose a conditional sentence on Ms. Jiang. Thus,based on Proulx, it appears that this Court does not have the ability to impose a more “lenient sentence.” Accordingly, a non-custodialsentence is not appropriate, in these circumstances. V. Conclusion [63] Ms.

Jiang, please stand up. [64] Taking into consideration the principles of sentencing set forth in the Code, including, the aggravating and mitigating factors,your circumstances, the factors outlined in Code s. 718.2, including subsections (b), (

d) and (e), this Court concludes that a fit and propersentence would be for you to be incarcerated in an appropriate facility for a period of 45 days to be served intermittently on weekends. [65] Concurrently with your custodial sentence, for a period of 12 months from today’s date, you shall abide by the conditions of aprobation order, which are that you shall: 1. Keep the peace and be of good behaviour 2. Report to a designated Adult Probation Office in Edmonton within 3 business days of your release. After that, you will report toyour designated Probation Officer in such manner and at such times as the designated Probation Officer requires.

3. Appear before the court when required to do so by the court. 4. Immediately notify the designated Probation Officer of your residential address and telephone number. 5. Notify the court or the designated Probation Officer in advance of any change of name or address and promptly notify the court or the designated Probation Officer of any change of employment or occupation. 6.

During the time that you are serving your custodial sentence intermittently and for 90 days after the date of your release from incarceration, you shall remain in your residential address from 9 p.m. each day until 6 a.m. the following day, except to the extent necessary for you to attend a medical doctor's office or hospital or for you to go to your place of employment and, in those cases, you must take the most direct route from your place of residence to your intended destination. 7.

Not to leave Alberta without the prior written approval of the designated Probation Officer, and only in accordance with that approval. 8. Abstain from communicating, directly or indirectly, with Mr. Hon. 9. If you agree, and subject to a programme director’s acceptance of you, participate actively in a counselling programme approved by the province. [ 66 ] I am obliged to inform you of the provisions of Code s. 732.2(3). Under that section, you have the right to apply to change the additional conditions of the probation order, if a change in circumstances occurs after these conditions are imposed.

The designated Probation Officer or the Crown may also apply to change the additional conditions. A change may include, adding to or removing any of the additional conditions that this Court imposed; relieving you from having to comply with any of the additional conditions either absolutely or for a specified period of time; or reducing the period for which you are bound by the probation order. A hearing will be held to deal with the request for a change. You must attend that hearing in person.

If the court makes a change to your probation order, you will be informed of that change and a new copy of the order will be given to you. You will be required to comply with the order as changed. [ 67 ] As well, I am obliged to inform you of the provisions of Code s. 732.2(5).

If you are convicted of an offence during your term of probation, including the offence of violating the probation order, you may be brought back to court and the court can add to the conditions this Court has imposed or extend the period of probation. [ 68 ] I must also inform you that under Code s. 733.1, if you wilfully fail or refuse to comply with the conditions of probation, that is a separate offence of which you may also be convicted and sentenced. [ 69 ] With respect to the probation aspect of your sentence, this Court further directs: Firstly, the Clerk of the Court is to provide you with a copy of the probation order and an explanation if requested.

Secondly, the Clerk is to explain to you the substance and procedure of Code ss. 732.2 and 733.1, to ensure that you understand the conditions that this Court has imposed on you, what may occur if you violate any of those conditions, and the procedure that you must follow if you wish to make an application to change any of the additional conditions of the probation order. Thirdly, that the Clerk of the Court certifies that the probation order and explanations have been given and that you have indicated your

understanding of them. If the Clerk of the Court cannot so certify, you will be brought back before this Court for further directions. [ 70 ] Pursuant to Code s. 109, this Court orders that you not possess a firearm, crossbow, ammunition, restricted weapon or explosive substance or anything that can be converted into an explosive substance for a period of 10 years from the date of your release from incarceration and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

If you have any firearms or those other items in your possession or at your place of residence you must surrender them to the designated Probation Officer. [ 71 ] You must surrender to the designated Probation Officer any authorization license or registration certificate or other document enabling you to acquire or possess a firearm or those other items. [ 72 ] As well, aggravated assault is a primary designated offence under Code s. 487.04.

Accordingly, this Court orders that you submit to the authorities for the taking one or more of your bodily substances required for the purpose of forensic DNA analysis. [ 73 ] In the view of Ms. Jiang’s financial circumstances, this Court waives the victim surcharge. Heard on the 3 rd day of November, 2010 through to the 5 th day of November, 2010. Dated at the City of Edmonton, Alberta this 23 rd day of March, 2011. Keith D. Yamauchi J.C.Q.B.A. Appearances: Carrie-Ann Downey for the Crown Rod J.A. Gregory Davidson Gregory Danyluik Stuffco for the Accused

[1] This Court deleted the daughter’s birth date from the written version of these reasons, as it is not relevant.