R. v. Dixon, 2011 ABQB 255

Court of Queen ’ s Bench of Alberta Citation: R. v. Dixon, 2011 ABQB 255 Date: 20110412 Docket: 080324502Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - James Glen Dixon Accused _______________________________________________________ Reasons for Judgment (Edited Oral Sentencing delivered March 23, 2011) of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ [ 1 ] The Accused, James Glen Dixon, has entered a guilty plea to assault causing bodily harm contrary to

Section 267 (

b) of the Criminal Code . The following facts have been admitted for the purposes of the accused ’ s plea of guilty to this offence: 1. On November 6, 2007 a ball-hockey game took place between the “ Bush Pilots ” and “ SWAT ” teams at the Legacy Sports Centre at the Currie Army barracks located at 2834 Falaise Avenue South West in Calgary, Alberta.

2. James Glen Dixon (the “ Accused ” ) was a member of the Bush Pilots, Mark Andrew the ( “ Complainant ” ) was a member of SWAT. 3. Near the end of the first half of the game, the play was near the Bush Pilots goal when their goalie covered up the ball after stopping a shot. One of the players from the SWAT team used his hockey stick to chop down on the goalies hand which was covering the ball. This resulted in players from both teams pushing and shoving each other as well as the exchanges of punches. There were a number of players in front of the net who formed a scrum. 4.

The Accused walked towards the scum in an effort to assist and support his team. The Complainant, seeing the Accused moving towards the scum, intercepted him from the side; by grabbing the Accused who was looking ahead towards the scrum. The Complainant started throwing punches at the Accused. The Accused responded by throwing some punches. 5.

During this initial fight, between the Accused and the Complainant, the Complainant got the upper hand which resulted in the Accused on his knees attempting to cover his face with his hands and the Complainant standing over him continuing to land punches on his head and face. The Accused was unable to punch back and when the Complainant stopped punching and the Accused began to rise. As he was rising the Accused was kneed in the face by the Complainant causing him to fall flat on the ground. 6.

The fight had lasted approximately 15 to 25 seconds, when other players intervened and the Complainant was pushed off of the accused. One of the other players on the SWAT team, the goalie, pulled the Complainant to a standing position and they began to yell at each other behind the net close to the boards. The Accused was lying on the ground approximately 10 to 20 feet away from the Complainant and the goalie were yelling at each other. 7. The Accused rose to his feet and walked towards the Complainant and the goalie. He approached them from behind and to the left of the complainant.

The Accused threw a punch with his left hand which connected with the Complainant ’ s jaw. As the Complainant was focused upon his exchange of words with the goalie, he was unaware that the Accused was approaching him from behind and therefore did not see the punch that landed upon him, nor was he in a position to defend himself. This punch was thrown approximately 15 to 20 seconds after the Accused was kneed in the face. 8.

As a result of this punch the Complainant collapsed, falling awkwardly into the boards, striking the side of his face/head on the seam edge of the boards meet the glass - then directly on the concrete floor. 9. The goalie, having seen the entire sequence of the assault and the Complainant ’ s awkward fall into the boards, immediately came to the first-aid of the Complainant giving him comfort and insuring that no other players attempted to move him as he was now unconscious.

The Complainant remained unconscious for approximately 30 to 90 seconds and when he awoke he was then speaking incoherently; asking what happened and where he was and then repeating the same questions. 10. An ambulance attended as did the Calgary Police Service. The Accused was admitted to the Foothills Medical Centre. 11. The Complainant ’ s injuries, resulting from this punch by the Accused, included a fractured jaw that required surgical intervention to repair. The Complainant did have surgery on November 29, 2007. The medical reports of Dr.

Duncan Nickerson (plastic surgeon) may be admitted as exhibits in this sentencing. 12. And in fact they were admitted as exhibits. 13. As a result of this surgery, the victim ’ s jaw was wired shut for a period of time; titanium plates and screws now hold his jaw together. These were the Statement of Admitted Facts.

[ 2 ] The Crown submitted that a conviction should be entered with a conditional sentence given with no incarceration but with time served in the community. The defence submits that this is an appropriate case for a conditional discharge to be considered pursuant to

Section 731 of the Criminal Code ; that is to say, with conditions as proscribed in a probation order made under Section 731(2) of the Criminal Code. [ 3 ] There are two conditions precedent to be exercised by the Court of the authority given to it by

Section 7631 of the Criminal Code , i.e., a conditional discharge: 1. That it be in the est interest of the accused; and 2, that it not be contrary to the public interest. [ 4 ] With regard to the first condition precedent, that it be in the best interest of the accused, in this case it is clear that the accused has entered a guilty plea, has accepted responsibility and demonstrated remorse. It was a one-punch-only incident.

He was a person of good character without a previous conviction and with a stable and responsible home life, a stable and responsible job, and community roots as a volunteer. [ 5 ] I am convinced that with regard to the first condition precedent it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him.

The entry of a conviction would also have a significant effect, although not a fatal effect, on his job in that a conviction would hinder him from periodic job requirements to attend meetings in the United States. [ 6 ] On the second element with regard to it not being contrary to the public interest, this is a more difficult assessment. Courts in the past have stated that the deterrence of others must be given due weight.

Crown submits the courts have clearly been sending a message that there is no automatic immunity from criminal liability for sportsmen who choose to inflict malicious or overtly violent attacks on their opponents. It submits that in cases such as R. v. Holt , a 1992 decision of Alberta Court of Queen ’ s Bench, the Court has stated that a message must be sent to the community as a whole that physical violence of this kind, whether in a hockey game or in any other situation, is not to be tolerated in our society.

In other words, deterrence is a significant factor that the Court has to consider. [ 7 ] The defence on the other hand refers the Court to R. v. Hamilton , a 2004 decision of the Ontario Court of Appeal. Paragraph 916 which reads as follows: The express inclusion of a restraint as a principle of sentencing is one of the most significant features of the 1996 Criminal Code amendments statutizing sentencing principles for the first time. As Professor Manson explains: Restraint means that the prison on the sanction of last resort ...

Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction. [ 8 ] The defence refers to a number of cases including R. v. Mayer where there was a discharge granted after a hockey game assault which had similar facts to the one at bar, and in R. v. Serafinchon where a discharge was granted after a violent domestic vault. It also refers to R. v. Bertuzzi and R. v.

McSorley when an unprovoked assault at a hockey game resulted in a conditional discharge. [ 9 ] In my view, in the case at bar there was a significant degree of provocation. Here, the complainant started throwing punches at the accused after a stoppage in play and the accused responded by throwing some punches. The complainant got the upper hand in the fight which resulted in the accused on his knees attempting to cover his face with his hands with the complainant standing over him continuing to land punches on his head and face.

The accused was unable to punch back and when the complainant stopped punching, the accused began to rise. As he was rising, the accused was kneed in the face by the complainant causing him to fall flat on the ground. [ 10 ] I have no doubt that it is not inconceivable that the accused could easily have suffered serious injury at this point in time and if he had, the positions of the parties would have been reversed; i.e., the complainant would have been accused and the accused would have been the complainant.

It is perhaps through good luck and good fortune that the complainant is not in the position of the accused today, although it must be noted he did suffer significant and serious injury.

[ 11 ] The circumstances of these acts by the complainant, which in themselves appear to be violent, resulted in a significant provocation of the accused which resulted in the one punch by the accused 10 to 25 seconds after he was kneed in the face. This significant degree of provocation was not as prevalent in the other cases where conditional charges were granted. The Ontario Court of Appeal in R. v.

Simcoe , a 2002 decision of the Ontario Court of Appeal stated that: ... clearly provocative conduct affects the moral culpability of the appellant, that conduct can and should be taken into account when considering the appropriate sentence. [ 12 ] In this case, without the degree of significant provocation, it is clear that a more severe sentence would be warranted. [ 13 ] I also upon review of the cases presented, including R. v.

Serafinchon have concluded that the public interest also includes a consideration of the benefits to the public of allowing the accused to pursue his career goals and his future without being inhibited by a criminal conviction.

I have also taken into account the decision of the Crown that a conviction be entered with a sentence to be served in the community as opposed to the defence position that a conditional discharge be granted with no conviction. [ 14 ] In the result, I am satisfied that a conditional discharge with terms of probation would be in the interests of the accused and not contrary to the public interest. Subject to further representations of Crown and defence counsel, these terms are as follows: 1. You shall, for a period of six months, keep the peace and be of good behaviour. 2.

Appear before the Court when required to do so. 3. Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation. 4. Report in person to the probation officer within two working days and thereafter as directed. This follow-up reporting may be made by telephone or in person at the discretion of the probation officer. 5. Pay to Jamie Dixon, the complainant, as per the request for restitution in Exhibit 1, the amount of $7,691.69 within 90 days of today ’ s [March 23, 2011] date. 6.

You shall not play in any organized ball hockey league games for a period of six months. 7. In addition, there shall be a victim fine surcharge of $150 payable within 30 days of today ’ s [March 23, 2011] date. 8. Within the next 14 days [from March 23, 2011] you shall provide a DNA sample to the police. Dated at the City of Calgary, Alberta this 12 th day of April, 2011.

J.T. McCarthy J.C.Q.B.A. Appearances: R.P. Simenik for the Crown W. deWit for the Accused