R. v. Bougerois, 2012 ABQB 255

Court of Queen ’ s Bench of Alberta Citation: R. v. Bougerois, 2012 ABQB 255 Date: 20120417 Docket: 100581305S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Candice Aqueen Bougerois Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G. Park _______________________________________________________ Appeal from the Judgment by The Honourable Judge C. L.

Daniel Convicted on the 18 th day of October, 2010 (Docket: 100581305P1) [ 1 ] Pressures of a personal nature in her life combined with a dietary “cleansing” and an over-consumption of alcohol caused the Appellant to become intoxicated on May 14, 2010. Normally the Appellant is a person who restricts herself to 2 or 3 drinks on social

occasions. However on this occasion she exceeded her self-imposed limit and became in her own words “possessed” from the alcohol consumption. [ 2 ] After she reached this level of intoxication she hired a taxi cab. However, her level of intoxication prevented her from providing the taxi driver with a destination address. He drove her to a district office of the Calgary Police Service where he advised a police constable of her impairment and her difficulties. A police officer spoke with the Appellant and attempted to obtain an address. The Appellant was unable to provide one.

She became belligerent and yelled racial slurs at the taxicab driver, who subsequently requested she be removed from the cab. The constable asked her to exit the vehicle three times. The Appellant refused and eventually was physically removed and placed under arrest for public intoxication. While being escorted into the police district station, the Appellant became combative. She grabbed the constable in the groin area. Another police constable immediately came to his assistance. The Appellant was yelling profanities and statements about the Canadian government.

She continued to struggle with the police until she was handcuffed and restrained against the lockers. A third officer came to assist. The Appellant refused to remove her shoes and jewellery and as a result the police removed her shoes and jewellery. While they were removing an earring, the Appellant attempted to kick an officer. She did not make contact. None of the police constables received any lasting injuries. [ 3 ] On October 18, 2010 the Appellant attended her trial date without counsel. The Crown found duty counsel to speak to the Appellant.

Duty counsel reviewed disclosure with the Appellant and entered pleas of guilty to counts 1 and 3: assault peace officer contrary to s. 270(1) (

a) of the Criminal Code , and drunk in public contrary to s. 115(2) of the Gaming and Liquor Act , being RSA 2000, c.G-1 . The facts of the offences were read in and agreed to by the Appellant. [ 4 ] The Appellant provided a very meaningful and heartfelt apology to the police constable, named in count 1. [ 5 ] Duty counsel advised the sentencing judge she had discussed the Crown disclosure and the provisions of s. 606(1.1) of the Criminal Code with the Appellant.

Duty counsel further indicated she discussed with the Appellant the possibility of making an application for a conditional discharge due to the possible effect of a criminal record on the Appellant’s employment. After finding out the Appellant worked for Alberta Health Care the sentencing judge ordered a pre-sentence report. [ 6 ] No victim impact statement was provided to the sentencing judge by the Crown. [ 7 ] The matter was adjourned to December 21, 2010 for the sentencing hearing. The Appellant did not have the assistance of counsel on that date.

The probation authorities had not completed the pre-sentence report and requested a further 8 weeks for completion. The probation officer provided a letter to the court in this respect. The letter had not been provided to the Appellant, prior to this sentencing hearing. [ 8 ] The Appellant attempted to explain why the pre-sentence report was not completed but was advised by the sentencing judge that the pre-sentence effort would be abandoned.

Instead the sentencing judge decided to ask the Appellant some questions rather than, in the words of the sentencing judge, “putting everybody through the agony of another adjournment” to prepare the pre-sentence report. [ 9 ] In response to those questions the Appellant informed the sentencing judge she was 46 years old and on a contract with Alberta Health Care as a financial analyst. She provided her earlier work history in further questions put to her. She advised she was single and the mother of two children, ages 28 and 21 years, who did not know of her criminal charges.

The Appellant, in answer to the court’s question, advised she did not have an alcohol problem. [ 10 ] The sentencing judge noted the Appellant’s guilty plea on the trial date, the Appellant’s remorse and the facts leading to the conviction being out of character for the Appellant. She further noted the Appellant’s lack of a criminal record and the Appellant’s accepted apology to the police officer.

The sentencing judge found the Appellant’s acts, caused the one police officer some discomfort and further occupied the police officers’ time. [ 11 ] On the issue of sentence the Crown submitted a very high fine be imposed with perhaps a period of probation. The probation would depend on what issues could be addressed to achieve the principles of denunciation and deterrence. The Crown started to explain that it was opposed to a conditional discharge but it was interrupted by the judge who stated a conditional discharge was not appropriate

in these circumstances. The judge summarily dismissed the possibility of a conditional discharge order being an appropriate sentencewithout hearing submissions from the Appellant or the Crown on that issue and without discussing and considering the legal test for aconditional discharge. [12] After the judge indicated a conditional discharge was not appropriate the Appellant asked about the possibility of alternativemeasures being imposed.

The judge advised the Appellant the matter had proceeded past the stage of alternative measures. [13] Without advising the Appellant of her rights to address the issue of sentence, the sentencing judge rendered her decision andimposed a $1,000 fine and in default 14 days, and a victim fine surcharge of $150 and in default, 2 days consecutive.

The Appellant wasgiven until October 28, 2011 to pay the fines. [14] The Appellant then asked the sentencing judge if the imposed fine on count 1 would provide her with a criminal recordbecause she was fearful Alberta Health Care would not hire her for a permanent position from her contractual status if it learned of acriminal record. The sentencing judge advised the Appellant that a criminal record now existed. [15] Count number 3 under the Gaming and Liquor Act was resolved by an order for a fine of $115 and in default 2 daysimprisonment with a victim fine surcharge of $22 with no default imprisonment imposed.

Again time to pay until October 28, 2011 wasgiven. [16] On this appeal the Appellant sought to introduce fresh evidence on the aforesaid facts and the sentencing hearing forconsideration by me. Sections 683(1) and 822 of the Criminal Code permit fresh evidence to be admitted where a court considers it to bein the interest of justice. [17] The Appellant requested the fresh evidence be admitted for 2 purposes:

a) To assist in determining the issue on appeal of insufficient guidance by the sentencing judge to an accused unrepresented bycounsel; and

b) To assist this Court in determining the appropriate sentence if an error is found. [18] The fresh evidence set out in the Affidavit of the Appellant, filed in this Court, provided evidence on these points:

a) The insufficient guidance by the sentencing judge and the Appellant’s lack of understanding of the process;

b) How the insufficient guidance impacted her sentencing hearing;

c) What she would have done differently had she been properly informed; and

d) The information she would have brought forward had she received proper guidance. [19] In the normal course an application for fresh evidence is governed by the principles in R. v. Palmer, (SCC),[1980]1 S.C.R. 759 at 775. The principles are:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general

principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [20] However, the Appellant submitted because the fresh evidence questioned the fairness of the sentencing proceedings, she didnot have to meet the test in R. v. Palmer, supra. In this connection the Appellant relied on the authority of R. v. Phillips, 2003 ABCA 4,320 A.R. 172, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623. In that case Fruman, J.

A. for the majority of the Alberta Court of Appeal statedat para. 27: 27 The record may, by itself, demonstrate that the accused's ability to defend his case was compromised by the action or inaction ofthe trial judge. But it may not.

Although the concept of trial fairness is flexible, there must be some air of reality to a potential defence.Therefore, an appellant may also apply to adduce additional evidence at the appeal stage to substantiate a claim that the trial was unfair.For example, an appellant might provide evidence to show that he would have done things differently, had he received particular advice:Criminal Code s. 683(1); Hardy (CA.), supra at 363.

Because such evidence is not directed at a finding made at trial, but challenges thevalidity of the trial process, admission of the evidence is not dependent on meeting the fresh evidence requirements set out in Palmer v.The Queen, (SCC), [1980] 1 S.C.R. 759: R. v. W. (W.) (1995), (ON CA), 100 C.C.C. (3d) 225 at 232(Ont. C.A.). See also United States of America v. Shulman, 2001 SCC 21 , [2001] 1 S.C.R. 616 at 636. [21] However, in the alternative, the Appellant submitted if the test in R. v. Palmer, supra is still to be applied, the criteria as setout in R. v.

Palmer, supra are met, in any event in the case at bar, for the following reasons: (

a) Whether the evidence could have been presented at the hearing with due diligence of the Appellant should not be strictlyenforced, because the reason the information was not presented was the lack of guidance from the sentencing judge and the sentencingjudge's unilateral decision not to adjourn the hearing for the preparation of the pre-sentence report; (

b) The evidence is relevant to the issues of the impact on the Appellant of the insufficient guidance by the sentencing judge and theappropriateness of the imposition of a discharge; (

c) The evidence is credible and reasonably capable of belief as it is sworn evidence by the Appellant; and (

d) The evidence, if believed, in conjunction with the information contained in the Sentence Appeal Record, could affect the resultof the sentence. [22] In argument before me the Crown took the position it did not oppose the admission of the fresh evidence because it waslargely irrelevant and would not have any great effect on the appeal. [23] Accordingly, the fresh evidence in the Affidavit sworn by the Appellant was admitted by me. [24] Once admitted the Appellant submitted that fresh evidence would be helpful in highlighting the 2 errors made by the

sentencing judge which warrant Appellant intervention. The Appellant argued the first error revolved around the sentencing judgeproviding insufficient guidance to her as an unrepresented accused (offender) in the sentencing process. The second error submitted bythe Appellant was that the sentencing judge failed to properly consider whether a conditional discharge was an appropriate remedy underthe circumstances. [25] Both the decisions in R. v. Phillips, supra by the Alberta Court of Appeal and the decision of R. v.

T.S.(1999), 1999 ABQB990 , 258 A.R. 312 (Q.B.) by Lee, J. in this Court, speak to the general obligation of a trial judge to provide assistance to anunrepresented accused in the trial process. I agree a judge engaged in the sentencing process has a duty to explain to an unrepresentedaccused (offender) that sentencing submissions could be made and the basic procedure to be followed.

An accused (offender) must notbe left with the impression that the sentence due to be imposed was a foregone conclusion. [26] In the case at bar the Appellant was not afforded an opportunity to make any submissions before the conditional dischargewas rejected and a fine was imposed. The sentencing transcript reveals the confusion of the Appellant on both the process and thesubstance of the sentencing process. The Appellant came to the courtroom on the second occasion, December 21, 2010 without the pre-sentence report having been completed. Further, no duty counsel was present on December 21, 2010.

The Appellant’s Affidavit beforeme revealed on that date she was very concerned about the effect of a criminal record on her current and future employment as well asher ability to volunteer for church missions and her ability to travel. The Appellant attempted to explain why the pre-sentence report wasnot completed but the sentencing judge interrupted her with some questions which were answered. The Appellant’s fresh evidencereferred to the quickness of the sentencing hearing and her corresponding confusion as to the timing of any submissions she wished tomake.

She advised she did not wish to interrupt or be disrespectful to the Court. Further she did not understand she was allowed to tell thejudge more information than simply answering the questions. Next, the Appellant advised in the Affidavit she did not understand thatshe could tell the Court why she should not have a criminal record and the impact a criminal record would have on her employment andpersonal life.

The Appellant conveyed in the Affidavit she did not understand why the alternative measures program was not available.Further she did not understand that the sentencing judge would not impose a conditional discharge as suggested by the duty counsel onthe date when a pre-sentence report was ordered. She only learned a conditional discharge was not appropriate when the sentencingjudge interrupted the Crown submissions on the inappropriateness of a conditional discharge and went on to indicate to the Crown andherself that a conditional discharge was inappropriate.

The Appellant advised in the Affidavit she did not appreciate she could submit tothe Court why it was appropriate in her belief. Finally in her Affidavit she provided the following additional information: Had I been informed of my right to provide information to the court about my personal circumstances and right to argue for a discharge, Iwould have provided the court with the following additional information: (

a) a criminal record could sacrifice my ability to maintain my employment with Alberta Health Care because they had not yetcompleted the criminal record check; (

b) although no one attended with me at the sentencing hearing I have the support of friends who were aware of the circumstancesbefore the court; (

c) I am respected in my community and regularly attend church. Some of my family members have gone on missions with thechurch and I am concerned a criminal record will impact my ability to do similar missions in the future; (

d) I would have arranged for the character references such as those attached hereto collectively as Exhibit "A" to this my affidavit toshow this was an isolated incident; (

e) this experience has been incredibly stressful and has caused me both emotional and physical stress. I would state that I wouldnever put myself in a position again where I would commit another criminal offence; and (

f) I have suffered personal embarrassment and physical injury as a result of this incident. I suffered physical injury to my face andlegs which was a reminder every day of the consequences of my conduct. [27] In her Affidavit the Appellant summed up her position that she would have requested an adjournment to have the pre-sentence

report completed or for her to present additional information if she had been informed of the option to do so. [ 28 ] In my opinion the Appellant was provided with insufficient guidance in the sentencing process. The matter was adjourned for the sole purpose of obtaining a pre-sentence report in order to determine the issue whether a conditional discharge was appropriate.

On the subsequent adjournment appearance the Appellant, without the presence of duty counsel and in the absence of the requested pre- sentence report, was provided no guidance on the criteria for a conditional discharge and her right to present argument on the appropriateness of a conditional discharge.

As a consequence it is apparent the sentencing judge erred in principle in the failure to provide sufficient guidance to the self-represented Appellant in the following areas: 1) To inform the Appellant of a right to provide information and argument for the Court’s consideration in the determination of an appropriate sentence. 2) Inform the Appellant of the opportunity to address the Court prior to the imposition of sentence in accordance with s. 726 of the Criminal Code . 3) Make enquiries with the Crown and the Appellant as to whether it would be contrary to the public interest to impose a conditional discharge. 4) Consider any argument from the Appellant in favour of the imposition of a conditional discharge. 5) Inform the unrepresented Appellant of the nature of the sentencing proceedings. [ 29 ] This error in principle founded on a lack of judicial guidance on the nature and purpose of a sentencing hearing mandates appellate intervention. [ 30 ] Having determined the sentencing judge erred in principle and upon the urging of the Appellant’s counsel and with the concurrence of Crown counsel, a pre-sentence report on the Appellant was directed to be prepared in this appeal. [ 31 ] Once the pre-sentence report was presented to this Court, Crown counsel submitted its contents made little difference because in any event the sentencing judge was correct in the final result in not granting a conditional discharge. [ 32 ] Appellant’s counsel argued the sentencing judge erred in summarily dismissing a conditional discharge in that the punishment prescribed for the Appellant’s offence did not set out a minimum punishment nor did it prescribe a maximum punishment of 14 years or greater.

It was argued further the sentencing judge erred in not proceeding through the necessary analysis to determine whether or not those prerequisites were met and whether or not a conditional discharge would be in the best interest of the offender and not contrary to the public interest. [ 33 ] The purpose of the pre-sentence report in this appeal was to provide additional background on the Appellant and to provide the opinion of an objective probation officer as to the possible appropriateness of a conditional discharge. [ 34 ] The pre-sentence report provided a very positive report on the Appellant and her character.

The Appellant was forthright and open with the author of the report. The Appellant was described as a devoted mother with great relationships with the people in her life. She was found to have a positive outlook on life and a hard worker. The author noted the Appellant appreciated the justice system, accepted responsibility for her actions and expressed remorse for those actions.

In summation the pre-sentence report found the Appellant, who had no prior criminal record, presented as a suitable candidate for community supervision. [ 35 ] Having determined the sentencing judge erred in providing sufficient guidance in the sentencing process and erred further in

failing to grant a further adjournment to obtain a pre-sentence report after initially ordering one, I intend on considering the fitness of thesentence imposed by the sentencing judge now that I have been provided with the pre-sentence report. I recognize the scope of thedeference that must be accorded to the sentencing judge’s discretion. However deference does not shield error in principle or a failure toconsider a relevant factor. I do not intend on remitting the matter to the sentencing judge to consider whether a conditional dischargewould be appropriate now that a pre-sentence report has been provided.

Rather expediency demands that I look to see if the sentenceimposed was not fit. See R. v. Arcand, 2010 ABCA 363, 499 A.R. 1. [36] The sentencing judge summarily dismissed the possibility of a conditional discharge being an appropriate remedy. Neither theCrown nor the Appellant was invited to make any submissions on the issue of the availability of a conditional discharge for this offence.Finally the sentencing judge provided no reasons on that issue. In this respect see Arcand, supra at paras. 78, 79 and 80.

These paras.state: 78 Parliament's decision to require reasons for sentences under s. 726.2 of the Code also reinforced the review role of courts ofappeal. Sentencing reasons serve three principal objectives. Facilitating meaningful appellate review of fitness of sentence is one ofthem.

A second is to provide the parties with an intelligible explanation for the result and the third is to ensure another objectivefundamental to preserving public confidence - accountability to the public. 79 Parliament understood that requiring judges to express reasons for sentencing would be the must effective way to ensure thatjudges have reasons. Or to put it the way that the Supreme Court did in R. v. Sheppard: "the act of formulating reasons may further focusand concentrate the judge's mind". Reasons also allow appellate courts to ensure that judges are not ignoring binding principles andprecedents.

Through reasons, courts, both trial and appellate, assure everyone involved, including the community, that the outcome is ajust sanction. It is only by explaining rationally the reasons for a particular sentence that the courts provide the transparency andaccountability necessary to preserve public confidence in the justice system. All this said, reasons need not necessarily be lengthy to meetthese objectives. 80 It comes down to this. Deference is not a reason for a sentence; deference is given to a sentence that has a reason. That reasonneeds to be in compliance with the Code.

Failure of the reasons to advert to the relevant considerations Parliament has identified andexplain how they have been taken into account in sentencing diminishes the deference otherwise owed to the outcome. A Caesarian'thumbs down' invites little deference unless the outcome is a foregone conclusion. By requiring reasons for sentence, Parliament hassought to ensure that both trial and appellate courts are accountable for the substantial powers entrusted in them. [Footnotes omitted] [37] I intend on reviewing the submissions of the Crown and the Appellant in this appeal on the fitness of the sentence.

Ifconvinced on review the sentence is “not fit” then I can vary it considering the normative sentencing principles and objectives in theCriminal Code and s. 718.1 in particular. [38] Although the Crown recognized the pre-sentence report painted a sympathetic picture of the Appellant, it submitted thesentence imposed should be upheld on count 1 in that it falls within the six part test set out by the Alberta Court of Appeal in R. v.MacFarlane(1976), 1976 ALTASCAD 6 , 55 A.R. 222 (C.A.). That test is to be applied in a consideration as to whether toimpose a conditional discharge.

The Crown underlined the important first part of the test where the Court of Appeal indicated a casewould have to be a most exceptional case for a conditional discharge to be granted in a crime involving violence. The Crown furthersuggested where the crime of violence is perpetrated against police officers, the test becomes even more stringent. It referenced caseauthority where the courts have recognized that police officers are not expected to be subject to physical assaults in the execution of theirduty for the protection of the public at large.

Further the Crown stressed the principle of general deterrence must be expressed insentences given to persons who assault police officers. Crown counsel emphasized it is the duty of the judicial system to protect policeofficers who, in turn, provide protection for society.

He went on to argue this protection by the courts will avoid the development of apossible police mentality which might invite a reciprocal violence by the police in the execution of their duties if the police officer hadreason to believe there is not a significant deterrence provided by the judicial system to those who would invoke violence towards apolice officer. The Crown further indicated that crimes of assault on a police officer should require denunciation. Finally the Crownsubmitted the seriousness of an offence of assault on a police officer should require a criminal record to be imposed upon an offender.

Asa result the Crown argued, while the sentencing judge in the case at bar might have made some errors in the sentencing process, therewas no error in the final result in rejecting a conditional discharge. [39] The Crown further submitted a fine of $1,000 plus the victim fine surcharge is a fit sentence for count 1. It argued indetermining the sentence, the sentencing judge did not commit any error in principle, did not over-emphasize the aggravating factors orunder-emphasize the mitigating factors. The sentence should be found to be appropriate within the range for offences of this nature.

[40] However in my view, not only did the sentencing judge commit errors in the sentencing process, she committed further errorsof principle in rejecting the conditional sentence without utilizing the earlier requested sentencing tool of a pre-sentence report and in notfurther addressing whether a conditional discharge was not contrary to the public interest and was in the best interest of the Appellant.Not only were the latter 2 considerations not addressed as required under the Criminal Code, the sentencing judge in rejecting theconditional discharge, did not provide the Appellant an adequate opportunity to make submissions on those 2 latter considerations.

Ineffect the sentencing judge foreclosed any submissions on those 2 required considerations due to her stated position that the offence wastoo serious. [41] In that respect despite the Crown’s submission that the sentence was fit and fell within the appropriate range, I disagree. Therewas no consideration whatsoever given to the required considerations of s. 730 of the Criminal Code and no consideration was given tothe relevant factors as set out in the 36 year old decision of the Alberta Court of Appeal in MacFarlane, supra.

Those factors include thenature and seriousness of the offence; the prevalence of the offence in the community; the possibility of a personal gain at the expense ofothers to an accused in committing the offence; whether the offence is property related and if so, the value of the property; whether theoffence was committed on impulse as opposed to premeditation; whether the accused should receive a criminal record from theconviction in order to apprise the community of the commission of the offence.

None of those factors were identified on the record priorto the imposition of the sentence other than the seriousness of the offence being recognized. Without the appropriate analysis on theconsiderations required under the Criminal Code and of the relevant factors set out in MacFarlane, supra, I cannot conclude thesentence was fit within the meaning of s. 687 and s. 718.1 of the Criminal Code. [42] It goes without saying in these circumstances a conditional discharge would be in the best interest of the Appellant. Is aconditional discharge contrary to the public interest?

The offence in the case at bar is a serious offence in its nature. Police officers arenot to be subjected to physical assaults in the execution of their duties in the protection of the public. Courts many times voicedisapproval by virtue of their sentences on such offences. This disapproval rests upon a court’s recognition of its duty and responsibilityto protect the police who play the front line role in the preservation of a just, peaceful and safe society. Courts must express disapprovalof all persons who engage in acts which result in the conviction for assault on peace officers.

General deterrence, specific deterrence anddenunciation are sentencing principles which come to the forefront in sentencing offenders who have been convicted of this crime. [43] Unfortunately there are many assaults committed on police officers in our community on a yearly basis. However this assaultcommitted by the Appellant was not a serious assault resulting in permanent injury.

Indeed before the sentencing judge the police officeraccepted the Appellant’s personal apology. [44] Regarding the other factors set out in MacFarlane, supra there was no personal gain to the Appellant and the offence was notproperty related. It would appear that in the face of the police officers trying to assist the Appellant she over-5reacted and in a moment ofdrunken impulsiveness she assaulted the police officer. [45] That leaves the final MacFarlane factor to be analysed, namely whether the Appellant should receive a criminal record fromthe conviction in order to apprise the community of the result.

The Crown submitted that offences of this nature should be subject to aconviction and an ensuing criminal record as part of the public record and in the public interest. The Crown noted in turn a criminalrecord would uphold the principle of maintaining public confidence in the enforcement and administration of the criminal justice system. [46] It must be borne in mind that each case is dependent upon its own factual circumstances with respect to the offence and theoffender. Further it must be recognized that the concept of public interest should be distinguished from public concern. See R. v.

Wallner(1988), 1988 ABCA 308 , 89 A.R. 282 at para. 10 (C.A.). The concept of public interest is broader than the twin principles ofdenunciation and deterrence. In the case at bar the sentencing judge seemed to indicate a conditional discharge could not meet the needfor denunciation and deterrence. In my view it can. The public interest can be met by the imposition of a sentence of a conditionaldischarge.

The conditions inherent in the probation order accompanying a conditional discharge can be visited upon an offender to meetthe sentencing criteria and factors set out in MacFarlane, supra. [47] Here the Appellant is a person of previous good character with no prior criminal record. She has the support of her family andher peers. She is a forthright and communicative individual who displays shame for her conduct towards the police officer. Her counselsubmitted she is prepared to abide by any conditions imposed upon her if a conditional discharge is granted.

The pre-sentence reportindicated the Appellant appreciates the justice system. At her initial sentencing the Appellant offered a heartfelt apology to the policeofficer who thanked her for it. It is obvious she appreciates the significance of her actions. Her actions have impacted her significantly.

[ 48 ] While I recognize the factors set forth in MacFarlane , supra I note and agree with the remarks of Wilson, J. in his decision in R. v. Adams , 2009 ABQB 160 , 468 A.R. 220 at para. 48 . He stated: 48 A final observation regarding discharges is warranted. The criminal judicial process has evolved significantly in the area of sentencing since 1976 when MacFarlane was decided. The creation of domestic violence courts, drug courts and statutorily entrenched alternative measures for criminal cases have resulted in a sentencing/resolution landscape far different from what it was 32 years ago.

Thus some of the language in MacFarlane which speaks to the blunt, black and white limited alternatives which were available then, may no longer carry the same emphasis today. Consider, for example, the factor of prevalence of a particular offence. While a prevalent type of crime counted against a possible discharge result according to MacFarlane the most prevalent, minor offences today are often diverted out of prosecution into alternative measures or peace bond resolutions.

Thus, it may be that a discussion of the “prevalence of a crime” factor may not be as relevant today as it was when MacFarlane was decided. [ 49 ] While the Adams decision involved domestic violence and the case at bar involved an assault upon a peace officer, the requirement to apply the principles of denunciation and deterrence can be met with the imposition of a conditional discharge. MacFarlane did not impose a blanket ban for conditional discharges arising out of assaults.

Rather in exceptional circumstances for an exceptional offender justice can be met and the public interest can be achieved with the imposition of a conditional discharge. In my opinion the public interest does not demand the Appellant possess a criminal record. Rather other factors demonstrate a conditional discharge is not contrary to the public interest.

Some of those other factors are as follows: • the nature of the offence was completely out of character and truly an exceptional circumstance that does not demand public notice; • this was an isolated incident; • the actions were impulsive and not premeditated or calculated; • her mind at the time was "possessed" by alcohol and the state of intoxication was an unexpected result from the combination of stress, fasting and alcohol consumption; • the Appellant has been a law abiding and productive member of society for 46 years and it is not in the public interest for a criminal record to deter her from continuing to do so in the future; • the Appellant has already suffered physical injury from her behaviour as well as emotional distress and shame. [ 50 ] As a result of the factors provided by the pre-sentence report, and the sentencing submissions made before the sentencing judge and later in this appeal, I conclude the public is interested in having the Appellant continue to be a contributing member of society without being burdened by a criminal record.

Public interest does not demand the Appellant have a criminal record. [ 51 ] Accordingly the appeal is allowed and the original sentences are set aside. An order for a conditional discharge is granted on count 1 with the following conditions prescribed in a probation order for 1 year. The Appellant shall do all of the following: a. keep the peace and be of good behaviour; b. appear before the Court when required to do so by the Court; c. notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation;

d. (i). report to a probation officer within 2 weeks of the date of this judgment; and (ii). thereafter, report when required by the probation officer and in the manner directed by the probation officer; e. abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription; f. abstain from owning, possessing or carrying a weapon; g. perform 90 hours of community service over a period not exceeding 9 months; h. attend any treatment, counselling or programming as directed by the probation officer; i. sign any release or waiver of information as directed by the probation officer, allowing access to information required by the probation officer; j. provide proof in writing that she has followed through and completed any treatment or counselling that she has been directed to take; [ 52 ] There shall not be a discretionary prohibition order rendered against the Appellant under s. 110(1) (

a) of the Criminal Code . Under all of the circumstances I find it is not desirable, in the interests of the safety of the Appellant or of any other person to make such an order of prohibition. My reasons for not making such an order are contained in the preceeding paras. of this judgment when I found the circumstances to be such that a conditional discharge should be granted.

This Appellant is not a danger to the safety of others bearing in mind, her prior good character, her age, her prior demeanour, the impulsivity of the offence, her remorse and the lack of serious violence perpetrated upon the police officer.

In not making an order I note it was not considered by the sentencing judge and neither counsel addressed it in their respective submissions to me, although both counsel agreed I could, in my discretion impose sentence upon the Appellant if her appeals setting aside the sentences were successful. [ 53 ] I agree with the sentencing judge that there is no necessity to order a DNA sample under s. 487.051(3) of the Criminal Code . The charge under count 1 is a secondary designated offence as set out in s. 487.04 of the Criminal Code . A judge has the discretion in ordering a DNA sample.

Further the Crown made no application for a DNA sample before the sentencing judge. In determining no DNA sample should be ordered I looked at the Appellant’s lack of a prior criminal record, the nature of the offence and the circumstances surrounding its commission, the prior good character of the Appellant, her age, her prior demeanour and her remorse. Finally I look to consistency in my granting of a conditional discharge and the corresponding impact any DNA sample order would have on the Appellant’s privacy and security of her person.

To order a DNA sample be provided is not necessary in these circumstances. [ 54 ] Finally, although it was not argued before me by either counsel, I intend on imposing a victim fine surcharge. The sentencing judge imposed a monetary victim fine surcharge in addition to the fine levied under count 1. I note there is no reason why the Appellant would fall under the provisions of s. 737.(5) of the Criminal Code where a court can at its discretion make an order exempting an offender on the basis of undue hardship to the offender from the mandatory victim fine surcharge under s. 737 .(1).

The Appellant did not argue and did not establish to my satisfaction any undue hardship. Accordingly I impose a victim fine surcharge of $50 on count 1. It shall be payable by June 1, 2012. A written notice under s. 737.(8) shall be provided to the Appellant upon her entering into the order for probation.

[ 55 ] The Appellant further appealed the sentence of a fine of $115 or 2 days in default plus a 15% victim fine surcharge on the conviction under s. 115(2) of the Gaming and Liquor Act . The sentencing judge gave the Appellant until October 28, 2011 to pay the victim fine surcharges under counts 1 and 3. [ 56 ] Argument was not directed by counsel in this Appeal as to whether any error was made by the sentencing judge in imposing a fine and a victim fine surcharge on this charge.

In any event I cannot see any error of principle, any failure to consider a relevant factor, or an over-emphasis of the appropriate factors. In my view the sentence was fit and fell within the appropriate range of sentences for offences of this nature. Accordingly the appeal on sentence on count 3 is dismissed. [ 57 ] During the hearing of these appeals I granted stays of enforcement of payments of the fines until these appeals have been resolved in this Court. The stays of enforcement are set aside and the victim fine surcharge and the fine payable under count 3 now become due and owing.

I will grant the Appellant time to pay the fine and the 2 victim fine surcharges until June 1, 2012. Failure to pay by that date will invoke a default period of 2 days imprisonment on the fine and no default periods for the victim fine surcharges. Heard on the 27 th day of October, 2011. Dated at the City of Calgary, Alberta this 17 th day of April, 2012. A. G. Park J.C.Q.B.A. Appearances: Andrew Barg for the Crown Jennifer Ruttan for the Appellant