R. v. Dumont, 2011 ABQB 87

Court of Queen ’ s Bench of Alberta Citation: R. v. Dumont, 2011 ABQB 87 Date: 20110314 Docket: 091258871S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Gordon Louis Dumont Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Dumont pled guilty to two counts of assault, in one of which the victim of the assault was under the age of 18, and also pled guilty guilty to one count of breach of recognizance and one count of breach of probation. For the assaults, the sentencing judge imposed a suspended sentence with a period of probation of 2 years, and, for the two breaches, one day in jail on each, to be served concurrently. [ 2 ] The Crown appeals from the sentences imposed on Mr.

Dumont on the grounds that the sentence: over-emphasized rehabilitation in circumstances where, because one victim was under the age of 18, the court should have given primary consideration to the objectives of denunciation and deterrence; failed to recognize the pertinent aggravating factors, including the young age of one of the victims as well as the other statutory aggravating factors; and, was not proportionate to the gravity of the offence.

[3] The appeal is denied. [4] In the circumstances here, the assault of a person under the age of 18 did not constitute “abuse” of the type addressed in s.718.01 of the Code. Therefore, the sentencing judge was not obliged to give primary consideration to the objectives of denunciation anddeterrence. [5] For the same reason, the sentencing judge did not fail to recognize the aggravating sentencing factor of the youth of one ofthe victims.

Nor did the sentencing judge fail to recognize the other aggravating and mitigating factors. [6] The sentence was not disproportionate to the gravity of the crimes and the responsibility of the offender. Cases and authority cited [7] By the Crown, appellant: R. v Deck 2006 CarswellAlta 365 at pars. 13 and 24; R. v Law 2007 CarswellAlta 779 at paras21-22; R. v Arcand 2010 ABCA 363 , 2010 CarswellAlta 2364 at paras 76, 77 and 277; R. v Proulx 2000 SCC 5 , 2000SCC5, 2000 CarswellMan 32 at para. 32; R. v S.(C.P.) 2010 ABCA 313, 2010 CarswellAlta 2081 at para. 4; R. v Crazybull 1993 ABCA197 , [1993] A.J.

No. 473 at para. 17; R. v McPhee 1989 ABCA 132 , 96 A.R. 277, 1989 CarswellAlta 490 at para. 4;R. v Metzler 2008 NSCA 26 , 2008 CarswellNS 151; R. v White 1986 CarswellBC 979; R. v McFarlane 1999 CarswellOnt783; R. v Rodriguez 2008 CarswellOnt 3088; R. v Mills 5 O.A.C. 79, 1984 CarswellOnt 1444 at para. 5; R. v Moreira 2007 BCPC 409,2007 CarswellBC 3132; R. v Nistor 2009 SKQB 464, 2009 CarswellSask 846; R. c Marseille 2010 QCCS 1973, 2010 CarswellQue4706; R. c Bégin 2007 QCCQ 11167, 2007 CarswellQue9380 [8] By Mr. Dumont: R. v. Grant 2009 SCC 32 , 2009 CarswellOnt 4104; R. v.

Cuerrier (SCC), 1998 CarswellBC 1772 (S.CC.); Sullivan on the Construction of Statutes (5th ed.); R. v. Zeolkowski (1989) (SCC), 50 C.C.C.(3d) 566 (S.C.C.); Bill C-2; S.C. 2005 c. 32:

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canadian Evidence Act; R. v. Brown, Highway and Umpherville (1992) 1992 ABCA 132 , 13 C.R. (4th) 346 (Alta. C.A.); R. v. McPhee 2004 CarswellMan 134 (C.A.); R. v. Sheppard (2002) 2002 SCC 26 , 50 C.R. (5th) 68 (S.C.C.); R. v. M.(L.) 2008 CarswellQue 4117 (S.C.C.). [9] By the court: R. v Pomerleau 2009 ONCJ 189; R. v Hammond, 2009 ABCA 415; R. v Lazore 2008 ONCJ 578; R. vM.B.W. 2007 ABPC 292; R. v Cazon 2006 NWTTC 11; R. v Cheddesingh 2004 SCC 16, [2004] 1 S.C.R. 433 1. Background

a) Circumstances of the Offenses [10] On April 1, 2010, Mr. Dumont pled guilty to two counts of assault, contrary to

section 266 of the Criminal Code. [11] On October 5, 2010, before the sentencing proceedings were completed for the assault charges, Mr. Dumont also pled guiltyto one count of breach of recognizance, and one count of breach of probation. [12] The facts relating to the assaults were that on August 28th, 2009, the 14 year old victim was babysitting when he observedthat Mr. Dumont was inside a van belonging to the homeowner for whom he was babysitting. The victim went outside to tell Mr.Dumont to get out of the van. Mr. Dumont exited the van, and asked the victim if he wanted to get hit.

The victim responded no, and Mr.Dumont proceeded to punch him in the face, giving him a bloody nose. The victim also suffered from sore teeth, and headaches. [13] These events were witnessed by a neighbor, Mr. Dragon, who became the second victim. Mr. Dragon rushed over to assist

the 14 year old babysitter. While Mr. Dragon was attempting to intervene, he was also punched in the face by Mr. Dumont. [ 14 ] Mr. Dragon filed a victim impact statement, which was entered as exhibit S-l. The statement indicated that Mr. Dragon suffered from a sore jaw for a couple of weeks, that he could not stop thinking about the incident, and that it was disrupting his sleep. [ 15 ] Mr. Dumont was extremely intoxicated at the time that the incidents occurred. [ 16 ] With respect to the breach of probation, Mr. Dumont attempted to get into a house while intoxicated on May 28th, 2010.

He was bound by a probation order at the time, which required him to abstain from the consumption of alcohol. Mr. Dumont had been placed on probation after pleading guilty to a mischief charge in April of 2010. [ 17 ] Mr. Dumont breached his recognizance on July 7th, 2010, by failing to abstain from the consumption of alcohol. As he was being arrested, Mr. Dumont was belligerent with the police, stating "I'll fucking kill you and bury you."

b) Circumstances of the Offender [ 18 ] Mr. Dumont’s extensive criminal record was admitted, and included over 50 criminal convictions, dating back to 1972. The record included numerous related crimes, including 8 convictions for crimes of violence, and 11 convictions for breaching court orders. On his last conviction for assault, in 2008, he received a suspended sentence with probation for 15 months. [ 19 ] Mr. Dumont committed the assaults while he was on release for the mischief charge and while he was on probation for his previous assault conviction. The breaches were committed while Mr.

Dumont was on release pending sentencing for the assaults, and while he was bound by a probation order. [ 20 ] Mr. Dumont spent 13 days in pre-sentence custody. [ 21 ] Mr. Dumont entered an early guilty plea. [ 22 ] Mr. Dumont's pre-sentence report was filed as exhibit S-3. It showed that Mr. Dumont was genuinely remorseful, had family support, and was making real and substantial efforts to deal with his alcoholism. [ 23 ] Between the time that Mr.

Dumont entered his guilty plea, and the time that he was sentenced, he participated successfully in the Slim Thorpe residential treatment program, and had been attending AA meetings. [ 24 ] Mr. Dumont is an aboriginal.

c) Positions of the Parties [ 25 ] The Crown, noting that the assaults were committed against a 14 year old and a good Samaritan attempting to assist him, that the accused had an extensive and related record, and that the accused was on release for other offenses at the time he committed the assaults, sought a sentence of 60 - 90 days gaol. The Crown sought sentences of 45 days for the breaches, again noting that Mr. Dumont had numerous related entries on his record. [ 26 ] Defence counsel, noting her client's remorse, employment, sincere efforts at rehabilitation for alcoholism, and

pre-disposition custody, sought a suspended sentence with a period of probation. [ 27 ] For the assaults, the sentencing judge imposed a suspended sentence with a period of probation of 2 years. For the two breaches, the sentencing judge imposed one day jail on each, to be served concurrently. [ 28 ] The Crown now appeals the suspended sentence for the assault convictions, and seeks a sentence of 60 - 90 days jail.

d) Legislative [ 29 ]

Section 718.01 of the Code reads as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 30 ] Similarly,

section 718.2 (a) (ii.1) reads as follows: 718.2 A court that imposes a sentence shall take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limited the generality of the foregoing, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, 2.

Standard of review [ 31 ] The parties agree, and I agree with them, that an appeal court is not to vary a sentence unless it finds that the sentence is demonstrably unfit or that there has been an error of principle, a failure to consider a relevant factor, or an overemphasis on the appropriate factors in arriving at the sentence. 3.

The sentencing judge did not err in focussing on rehabilitation; in the circumstances here, he was not required to give primary consideration to denunciation and deterrence [ 32 ] In the circumstances here, the sentencing judge was not required to give primary consideration to the objectives of denunciation and deterrence: here, the assault of a young person did not constitute “abuse” of that person as that term is used in s. 718.01.

In other words, the sentencing judge was entitled to give primary consideration in the circumstances here to the objective of rehabilitation. [ 33 ] I note, first, that the general rule is that new arguments, that is, arguments raised for the first time on appeal, are permitted only in exceptional circumstances, and, in particular, are allowed only where there is a sufficient evidentiary record to resolve the issue, where the party appealing did not hide the issue at trial for tactical reasons, and, finally where a miscarriage of justice will result from the failure to consider the new argument on appeal: McPhee .

Here, there is a sufficient evidentiary record to decide the issue, the Crown did not fail to mention s. 718.01 of the Code for tactical reasons, and, if the court were bound by Parliament to give primary consideration to denunciation and deterrence but failed to do so, that would be a miscarriage of justice which should be corrected. Therefore, the Crown is entitled to raise this issue on appeal even though the issue was not specifically addressed in the court below.

[ 34 ] Moving on to consider the substantive basis for the appeal, I first assess whether, in the circumstances here, the accused’s assault on a person under the age of 18 was “abuse” of that person. [ 35 ] Despite the frequent use by judges - especially in the context of bail - of the word “primary” in the sense of one among many, the meaning of the word “primary” in a statute is, according to the Compact Edition of the Oxford English Dictionary, and as the prosecution urges, “of the first or highest rank of importance; that claims the first consideration; principal, chief”.

Therefore, if the guilty plea to assault of a minor in the circumstances here can properly be characterized as abuse of a person under the age of 18 years, the sentencing court was bound to give chief consideration to the objectives of denunciation and deterrence. Clearly, a suspended sentence does not chiefly address denunciation and deterrence. [ 36 ] But does the assault of the victim here constitute abuse of that young person?

In coming to the conclusion that it does not, I have taken the following into account: - on the facts, the accused had no relationship of trust with or authority over the victim who was under the age of 18, and the narrative of events establishes that the age of the minor victim was neither a motivating nor an influential factor in the commission of the offence; - if Parliament had intended that the objective applied to all crimes involving minors it could have, and would have, said so. It did not; - the word “abuse” in this context is not defined by Parliament.

However, Parliament’s intention in choosing that word can be discerned from the context in which this word was introduced into the sentencing regime. That context does not extend to cover all children or minors, but only those who are, for one reason or another, in a vulnerable position. An indication of Parliament’s intention can be gleaned from its use of the word in other places in the Code: “abuse” was applied to spousal violence and to situations where individuals in positions of trust and authority abused their position.

Here, the child victim was not more vulnerable than the adult victim; - in penal legislation, strict construction applies. As Sullivan quotes Lamer J. in R. v McIntosh , :. . . the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons”: Sullivan on the Construction of Statutes , at p. 470; - the legislative history of this sentencing principle suggests that the word “abuse” was connected with the amendments introduced in 2005 pertaining to child pornography, sexual abuse of children and voyeurism. Indeed, the

preamble to the amending statute includes the following stated purpose: “WHEREAS the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect. . .” - Parliamentary discussion on the amendment, as reproduced in Hansard consists of a lengthy parliamentary debate of the statute, although most of the debate focussed on the child pornography and sexual assault provisions of the Act; - judicial

interpretation of the

section has, in the main, focussed on child pornography and sexual assault of children: Pomerleau . For example, accused who access child pornography may not have directly abused the child involved, but sentencing courts deem possession and distribution of child pornography as abuse of a person under the age of 18 years: Hammond , Lazore ; - in situations other than child pornography, sexually inappropriate behaviour with children, or mistreatment of children who are in a position of trust or over whom the offender has authority, the references to ss. 718.01 and 718.2(a)(ii.1) are much less clear.

In Moreira , the accused may have known that the residence into which he broke was occupied only by an 18 year old and an 11 year old. In any event, in imposing sentence, the judge said: “I note that although this is not a case where this was an abuse of a child per se . . . but when I look at s. 718.01, it does indicate that the criminal law considers cases which involve persons under 18 years of age should have denunciation and deterrence as a primary concern in sentencing”.

What has to be emphasized is that the sentencing judge in Moreira did not consider that the sentencing facts there amounted to abuse of a child. That sentencing judge’s further comments about a generalized primary objective of denunciation and deterrence when dealing with victims who are under the age of 18 does not, with respect, track Parliament’s express directions. There are, of course, cases in which a sentencing judge will have taken the fact that the victim of the

crime was a young person, or that a young person was corrupted as a result of the commission of a crime into account as an aggravating factor; however, such ad hoc considerations do not constitute a generalized principle; - in Marseille , there was recognition that the victim was under the age of 18, but the sentence there was a mandatory sentence because the accused was found guilty of second degree murder.

Since the accused himself was barely over the age of 18, it seems that the accused’s use of a firearm to kill the victim when he was subject to two firearm prohibition orders, his bad record and his refusal to provide information about the location of the deceased’s body were more important aggravating features in concluding that the accused must serve 13 years of his life sentence before applying for parole.

A somewhat similar situation occurred in M.B.W. where the accused was sentenced on a plea to first degree murder; moreover, in that case, the young age of the victim was clearly one of the factors which the group of people who were involved in her murder took into account in singling her out as their intended victim; - in Nistor , there is only a mention of

section 718.01, without analysis of why it was relevant in the circumstances there; - in Bégin , the accused was a teacher who assaulted a 10 year old student; - there are even cases like Cazon where s. 718.01 appears to have been taken into account even though being a minor was an element of the offence and presumably should not have been counted twice as an aggravating factor. [ 37 ] Overall, therefore, there is nothing in the Criminal Code itself or in the case law interpreting s. 718.01 which requires a court to apply denunciation and deterrence as primary sentencing objectives in all situations where a young person is a victim of crime.

Here, the fact that the first assault victim was a young person was merely incidental to the crime. [ 38 ] I next consider whether it was appropriate for the sentencing judge to give primary consideration to rehabilitation. The situation of a chronic alcoholic is a difficult one. Given the information available to the sentencing judge about Mr. Dumont’s positive steps to manage his alcoholism as proof of his good intentions to work towards a healthier future that would not involve anti-social behaviour as a result of the abuse of alcohol, the sentence imposed was not inappropriate.

In coming to that conclusion, I have taken into account Parliament’s recognition of the potential public benefit of a “medical” discharge in s. 255(5) of the Code. In that sub-section, Parliament recognized that curative provisions relating to alcoholism could be in the public interest if there was a chance that the cure would improve an alcoholic’s compliance with society’s expectations concerning responsible behaviour. Here, the acceptance by a highly regarded treatment centre of Mr. Dumont into its residential program and Mr.

Dumont’s successful completion of that program speak to the curative, and admittedly purely rehabilitative, aspect of sentencing a chronic alcoholic. 4. The sentencing judge did not err in not considering the assault of a minor in the circumstances here to be an aggravating factor in sentencing [ 39 ] The appellant has failed to establish that the sentencing judge failed to take into account aggravating factors. [ 40 ]

Section 718.2(a)(ii.1) is, of course, related to s. 718.01 of the Code; both were implemented by Parliament at the same time.

The discussion above concerning abuse of a person under the age of 18 years applies equally to the abuse of such a person as an aggravating factor in sentencing. [ 41 ] Moreover, the sentencing judge did specifically address the age of the first victim, the relative randomness of the events and the fact that alcoholism is not an excuse for assault: It goes without saying that, you know, a court can’t condone a person, drunk or sober, physically assaulting other people, particularly young people who are simply responding to a difficult situation, coming to - - and Good Samaritans who in turn come to those people’s aids. [ 42 ] The sentencing judge was not required to address all facts that were relevant to sentencing purposes.

For example, it is clear

that the sentencing judge was aware that Mr. Dumont is an aboriginal, but the sentencing judge did not expressly refer to sentencing principles in relation to aboriginals in his reasons for sentence. Similarly, the sentencing judge did not explicitly refer to the many mitigating factors including the presence of remorse, the guilty plea and Mr. Dumont’s honest efforts to obtain treatment even before the successful completion of a residential treatment program.

The recorded discussion with counsel during the protracted sentencing hearing does, however, establish that the sentencing judge was alive to all aggravating and mitigating factors and did take them into account in his sentence. 5.

The sentencing judge did not err in assessing proportionality [ 43 ] The appellant has failed to establish that the sentencing judge erred in imposing a sentence that was not proportionate to the gravity of the crimes. [ 44 ] First, it must be noted that Parliament’s use of the concept of proportionality applies to the gravity of the offence relative to the degree of responsibility of the offender; neither are absolutes.

Indeed, the Supreme Court of Canada noted that the gravity of the crime must not be considered in isolation from the other sentencing principles and that all sentencing must be done on a case-by-case basis: Cheddesingh . [ 45 ] The Supreme Court of Canada reminded us in M.(L.) of the deference which must be accorded to sentencing judges: 17 Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge's competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.3 Cr. C.; R. v.

Johnson, [2003] 2 S.C.R. 357 , 2003 SCC 46 , at para. 22 ; R. v. Proulx , [2000] 1 S.C.R. 61 , 2000 SCC 5 , at para. 82 ). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done (s. 718 Cr.

C.); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [ 46 ] Of course, as our Court of Appeal recently stated in Arcand , Trial judges are entrusted with determining and imposing sentences which are just and appropriate. Appellate oversight ensures that this sentencing discretion is exercised judicially. [ 47 ] In the circumstances here, I am unable to say that the sentencing judge failed to exercise his sentencing discretion judicially. 6. Conclusion [ 48 ] For the reasons set out above, the prosecution’s appeal is denied. Heard on the 10 th day of February, 2011.

Dated at the City of Edmonton, Alberta this 11 th day of March, 2011. J.B. Veit J.C.Q.B.A. Appearances: Julie Snowdon, Crown Prosecutors Office for the Crown/Appellant Charles Davison, Abbey Hunter Davison for Mr. Dumont