R v Haggerty, 2013 ABQB 711

Court of Queen ’ s Bench of Alberta Citation: R v Haggerty, 2013 ABQB 711 Date: 20131203 Docket: 110102365S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Chad Barry Haggerty Accused Corrected judgment: A corrigendum was issued on January 14, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Sentencing Decision of the Honourable Mr. Justice D.R.G. Thomas _______________________________________ __ ______________

Table of Contents I.......... Preliminary Point 3 II........ Background Facts. 3 III....... Submissions on Sentence. 5 A. Chad Haggerty. 5 B. Crown Position. 5 IV....... Analysis. 6 A. Required Conditions for a Discharge. 6 B. Best Interests. 7 C. Public Interest 7 D. Gladue is Applicable. 8 E. Discharge Not Contrary to Public Interest 9 V........ Sentence Imposed. 9

Schedule ‘A’ 12 Cases cited by the Appellant 12 Cases cited by the Crown. 12 I. Preliminary Point [1] This matter first came before me on a

summary conviction appeal and I found, inter alia, that the sentencing Judge had erredby failing to consider or apply in any obvious way the principles expressed in R. v. Gladue, (SCC), [1999] 1 SCR 688and R. v. Ipeelee, 2012 SCC 13, 280 CCC 265. After a mistaken detour back to the original sentencing Judge, the matter returned to mefor resentencing.

I ordered an updated Pre-Sentence Report (“PSR”), in the nature of a Gladue report and that PSR was completed andpresented to the Court. [2] At the resentencing hearing Crown counsel took the position that I must determine whether the sentence of the originalsentencing Judge (60 days intermittent and 24 months probation) was fit in contemplation of the new PSR. The decision of Clackson, J.in R. v. Gouda, 2013 ABQB 121, was cited, but I do not believe that it supports the position of the Crown.

As I read para. 3 of thedecision, Clackson, J. specifically rejected the notion that, where a sentencing judge has erred in principle, an appellate judge may onlyintervene if the sentence is demonstrably unfit.

At para. 4 he stated: ... a sentence which fails to consider the aboriginal circumstances of the offender is demonstrably unfit even if the sentence imposedhappens to fall within the broad range of sentences imposed on the average accused committing the offence. [3] In this case, I found that the original sentencing Judge had, inter alia, failed to consider or apply in any obvious way theprinciples expressed in Gladue resulting in a sentence which failed to consider the aboriginal background of this offender. Accordingly,the original sentence imposed was demonstrably unfit.

In the result, I sentence afresh, taking into account the information about the

aboriginal background of Chad Haggerty and all of the other relevant circumstances of the offence and the offender. II. Background Facts [ 4 ] The Appellant pled guilty to common assault contrary to s. 266 of the Criminal Code of Canada (“ CCC ”) . That plea was accepted by the original sentencing Judge on the basis of an Agreed Statement of Facts which are summarized as follows:

(1) Chad Haggerty and Neana Lintott (“Ms. Lintott”) were in a relationship from June 2010 to January 22, 2011.

(2) Chad Haggerty had been a member of the Royal Canadian Mounted Police (“RCMP”) since 1995, held the rank of Constable and was last posted to Thorsby, Alberta. At the time of this offence, he was suspended from duty as a result of a domestic violence complaint by a previous partner. At some time prior to the initial sentencing he resigned from the RCMP.

(3) The relationship of Chad Haggerty and Ms. Lintott became strained around Christmas 2010. They argued repeatedly in respect to parenting style and specifically over the involvement of Chad Haggerty in the discipline of Ms. Lintott’s son.

(4) On January 22, 2011, Chad Haggerty went to the home of Ms. Lintott. He was accompanied by his two daughters who were, at the time, 3 and 7 years of age. Chad Haggerty fell asleep in the master bedroom with his youngest daughter. Ms. Lintott was unable to sleep and went to a basement bedroom. At some point Chad Haggerty went to the basement and asked Ms. Lintott why she was sleeping there; he appeared to be angry.

(5) An argument ensued for approximately one-and-a-half hours.

(6) In an effort to end the argument, Ms. Lintott rolled away from Chad Haggerty on her side and said “just go upstairs.” Chad Haggerty demanded that she look at him, she refused. Chad Haggerty then forced Ms. Lintott onto her back, crawled on top of her, and forced her arms over her head. He laid flat on top of her and locked his ankles over her, while she cried and tried to free herself from his grasp.

(7) Chad Haggerty released his grasp and Ms. Lintott rolled away from him onto her side. Again he demanded she look at him and she refused. He grabbed her by her arms and forced her into a sitting position, and demanded she look at him. When she refused, Chad Haggerty grabbed her arms and forced her to look at him.

(8) Chad Haggerty lifted up Ms. Lintott and held her on top of him, saying, “If you don’t want me to control you, then you control me.”

(9) Ms. Lintott got off of Chad Haggerty and left.

(10) Chad Haggerty followed Ms. Lintott upstairs and asked her whether he had hurt her and whether she was scared. She said that she was.

(11) Ms. Lintott returned to the basement, Chad Haggerty came down several times, telling her he loved her and apologizing for not being the partner he wanted to be. At some point, Chad Haggerty fell asleep.

(12) Ms. Lintott reported she was frightened of him, but did not call the police because his children were present in the home. However, before Chad Haggerty awoke, Ms. Lintott left the home and went to the police.

(13) From July 1995 to October 1996, Chad Haggerty was married to fellow RCMP member Ms. Chalker. Ms. Chalker ended her marriage with Chad Haggerty and left the Province of Alberta, eight months pregnant at the time. She described her marriage to Chad Haggerty as abusive, but there was no formal complaint, no formal investigation and no charges were laid.

(14) From August 1996 to September 2005, Chad Haggerty was in a domestic relationship with fellow RCMP member Ms. Fontaine. Chad Haggerty and Ms. Fontaine have one daughter, born in 2004. At the time of the initial sentencing, Chad Haggerty was facing two

criminal charges related to events in April 2004 and arising from the relationship with Ms. Fontaine.

(15) From July 2006 to March 2010, Chad Haggerty was in a domestic relationship with Ms. Tost. Chad Haggerty and Ms. Tost have one daughter, born in 2008. Ms. Tost described her relationship with Chad Haggerty as abusive. She ended her relationship with Chad Haggerty in March 2010 because of alleged violence toward her while on vacation with him in Mexico. Ms. Tost’s allegations resulted in an internal investigation by the RCMP and a recommendation for formal discipline against Chad Haggerty. III. Submissions on Sentence [ 5 ] The cases cited to me in the course of argument are set out in the attached

Schedule ‘A’. A. Chad Haggerty [ 6 ] Counsel for Chad Haggerty submits that this is an appropriate case for a conditional discharge, under s 730(1) of the CCC and notes this is not an offence where there is a mandatory minimum. He submits that a conditional discharge would be in the best interests of Chad Haggerty and would not be contrary to the public interest. [ 7 ] It is noted that Chad Haggerty is 39 years old and had overcome considerable adversity to become an RCMP officer. Prior and subsequent to this incident, Chad Haggerty attended counseling for his PTSD and related issues.

His guilty plea is said to be a mitigating factor. [ 8 ] Counsel argues further that neither the fact of Chad Haggerty’s employment as an RCMP officer, nor the fact that the assault occurred in the context of domestic violence, precludes him from receiving a conditional discharge. It should depend on the circumstances of the case. [ 9 ] The assault is said to be relatively less serious, consisting of holding Ms. Lintott down on the bed with a leg lock and forcing her to look at Chad Haggerty. There were no physical injuries. It is said that although this was an inappropriate way to respond to Ms.

Lintott’s refusal to look at him, it was an impulsive act and not planned or calculated. There is no evidence of the presence of any drugs or alcohol in this incident. [ 10 ] Rehabilitation is said to be a relevant factor in this case. Counsel notes that Chad Haggerty has no criminal record. He maintains contact with his community on the East Prairie Metis Settlement, continues to seek advice from the Elders and to participate in sweats and sweet grass ceremonies.

He is currently attending university, plans to write the LSAT and, if successful, apply for admission to law school. [ 11 ] It is argued that no further action is needed from a deterrence perspective. Chad Haggerty has been open with friends, family, and colleagues, about this situation. It has already had an impact on his career prospects, although he says that it was his own decision to resign from the RCMP. B. Crown Position [ 12 ] The Crown argues that the Court should enter a conviction on this guilty plea and impose a sentence of 60 days incarceration, followed by a period of probation of 24 months.

This was the sentence imposed by the original sentencing Judge and the Crown maintains it is fit and meets the sentencing objectives of deterrence and denunciation that are so important in cases dealing with domestic violence. [ 13 ] The Crown notes several aggravating factors, including the domestic violence event; the offence took place in the home of Ms.

Lintott; children were present in the home at the time; several of Chad Haggerty’s previous partners have complained of domestic violence and Chad Haggerty was a police officer at the time of the offence. [ 14 ] The Crown also acknowledges some mitigating factors, such as the assault being on the lower end of the spectrum in terms of seriousness. [ 15 ] The Crown argues that Chad Haggerty’s actions were not impulsive or out of character, despite the positive reference letters from his colleagues and the Elders. Chad Haggerty’s public persona does not match the way in which his domestic partners perceive him.

Because domestic violence often takes place behind closed doors, it is important for the courts to send a strong message that such conduct will not be tolerated. [ 16 ] The Crown noted that a conditional discharge should very rarely be available in cases of domestic violence: Teclesenbet . The Crown submits that a conviction and a custodial sentence are necessary in this case to send a strong message of general deterrence and denunciation. IV.

Analysis [ 17 ] The decision of Gill, J. in Dunn , was cited by the defence and I adopt his approach in my analysis. [ 18 ] This was an assault in a domestic context and that is an aggravating factor under s. 718.2 of the CCC . [ 19 ] Mitigating factors exist, including the fact that Chad Haggerty pled guilty, has no prior record, had a difficult upbringing in

poverty, has shown remorse for his actions and continues to take counselling for his personal issues. There is also well-documentedevidence of his PTSD condition, which arose from his service in the RCMP. This is a very important factor to which I give considerableweight in determining an appropriate sentence. A. Required Conditions for a Discharge [20] Section 730(1) of the CCC sets out two conditions which must be met before a discharge may be granted by a sentencingCourt: 1. A discharge must be in the best interests of the accused; and 2.

A discharge must not be contrary to the public interest. [21] The Alberta Court of Appeal addressed these requirements in R v MacFarlane (1976), 1976 ALTASCAD 6 , 55 AR222, at paras. 11 to 14. [22] At para. 15, the Court also set out six criteria which a sentencing judge must consider in deciding whether to grant a dischargeand they are:

(1) The nature of the offence—the more serious the offence, the less frequently a discharge should be granted;

(2) The prevalence of the type of offence in the community;

(3) Whether the accused stood to gain from his actions, or whether he was motivated by something other than self-interest;

(4) If the offence involved property, the value of the property destroyed or stolen;

(5) Whether the offence was committed impulsively, in the face of unexpected opportunity, or was calculated; and

(6) Whether the circumstances in which the accused committed the offence should be a matter of public record. B. Best Interests [23] Chad Haggerty has entered a guilty plea. He has accepted responsibility and shown remorse. He has no previous convictionsand has been addressing his problems through counseling. He remains committed to supporting his three daughters, even though he hasnever met the oldest child. Having resigned from the RCMP, in part due to these proceedings, he is a diligent student with hopefulprospects for the future.

He continues to take counselling and the negative effects of his PTSD continue. [24] I do not need to enter a conviction against Chad Haggerty to deter him from future offences, or to rehabilitate him. Entering aconviction may also have a significant impact on the ability of Chad Haggerty to pursue his career goals and delay his recovery from hisPTSD condition. [25] I find that it is in the best interests of Chad Haggerty not to enter a conviction. C.

Public Interest [26] Assessing whether the granting of a discharge is not contrary to the public interest is somewhat more difficult. [27] Relevant criteria from MacFarlane are: the nature of the offence, the prevalence of the particular offence, whether the crimewas committed as a matter of impulse, and whether the circumstances in which an accused has committed the offence is somethingwhich should be a matter of record. [28] As the Courts have acknowledged on many occasions, including Gill, J. in Dunn, domestic violence is a serious problem andthere is a societal interest in attempting to deter domestic violence and protect its victims. [29] Counsel for Chad Haggerty presented 8 decisions where a discharge had been granted in situations involving domesticviolence and the names and citations are found in

Schedule ‘A’. Several of these cases involved significant physical violence resulting ininjuries. The accused in DED was an RCMP officer and Dunn was a corrections officer. Both of these individuals received discharges.In Sumyk, Burrows, J. upheld on appeal a conditional discharge in a more serious assault and after a full trial before the originalsentencing judge.

Here there was a guilty plea on agreed facts. [30] The Crown argues that, unlike the accused in Dunn, Chad Haggerty’s actions were neither impulsive nor out of character, buttook place in the context of a lengthy argument and power struggle between Chad Haggerty and Ms. Lintott.

The Crown also notes thatpolice officers, even when off duty, hold a special position of public trust and a breach of this trust is a significant aggravating factor:Koopman at para 25. [31] The Crown also makes reference to Betker which includes an assessment of the proper range of sentences in domesticviolence cases, ranging from conditional sentences of 18 months to four years’ imprisonment.

Only in a “most exceptional case” should acrime involving violence be dealt with by an order of discharge: MacFarlane at para 15. [32] Every case is obviously dependent on its own facts in respect to the offence and the offender. While Chad Haggerty’s act ofviolence towards Ms. Lintott cannot be considered minor, his conduct was at the lower end of the scale and that is acknowledged by the

Crown. Chad Haggerty pinned Ms. Lintott on the bed and on two occasions forced her to look at him when she refused to do so. While there were no physical injuries, Ms. Lintott suffered emotional harm and had to take time off work to deal with problems arising from this situation. Although Ms.

Lintott’s relationship with Chad Haggerty had been strained prior to the incident, the conduct of Chad Haggerty appears to have been impulsive and not calculated. [ 33 ] In DED , Rooke, J. (as he was then) found in applying the MacFarlane factors that the sentencing judge overemphasized the importance of putting the matter on the public record when, in fact, the Appellant’s family, community, and employer were already very much aware of what happened.

In this case, Chad Haggerty indicated to the original sentencing Judge that he has been open with friends, colleagues, and his new girlfriend, about this aspect of his life. He stated that he resigned as an RCMP officer in part because the court proceedings in this case had made his situation well-known. [ 34 ] As noted by McCarthy J in Dixon at para 13, the public interest also includes a consideration of the benefits of the public in allowing the accused to pursue his career goals and his future without being inhibited by a criminal record. D.

Gladue is Applicable [ 35 ] The principles in Gladue apply to this case. There are two conditions which I must consider: firstly, the unique systemic or background factors that may have played a

part in bringing Chad Haggerty before the Courts; and secondly, the types of sentencing processes and sanctions that may be appropriate in the circumstances for this offender because of his particular aboriginal heritage or connection. [ 36 ] The Crown submits that Chad Haggerty has failed to make out the relevance of his experience as an aboriginal person to the circumstances of this offence.

To the contrary, I find that defence counsel did establish that Chad Haggerty had a difficult upbringing on the East Prairie Metis Settlement, and that the racism he experienced as a youth on the Settlement and as an RCMP officer, are relevant to the offence itself: Edmonds . Dr.

Furman stated in the PSR that Chad Haggerty suffered from “complex and chronic PTSD arising from his traumatic childhood and exacerbated by multiple threats on his life while on duty as a police officer.” (Emphasis added). [ 37 ] As stated in Ipeelee , “ Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.” The trauma of Chad Haggerty’s upbringing in an impoverished Metis Settlement, his life-threatening experiences as a police officer and his positive and continuing steps toward rehabilitation, weigh in favour of granting a conditional discharge.

E. Discharge Not Contrary to Public Interest [ 38 ] In the circumstances of this case, the need for general and specific deterrence can be adequately addressed through a conditional discharge. The goal of rehabilitation would be much better served by some form of discharge. [ 39 ] Taking into account all of the factors discussed above, I am satisfied that a discharge would not be contrary to the public interest in this case. V. Sentence Imposed [ 40 ] For the common assault contrary to s 266 of the CCC , I impose a sentence on Chad Haggerty of a conditional discharge and a period of probation of 15 months.

Subject to further representations from Crown and defence counsel, the terms of probation shall include: 1) Keep the peace and be of good behavior; 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 a Probation Officer within two working days, and thereafter as directed.

This follow-up reporting may be by telephone or in person, at the discretion of the Probation Officer; 5) Attend for an updated assessment and participate in and complete any counselling directed by the Probation Officer; 6) Sign any release or waiver of information as directed, providing access to information required by the Probation Officer to ensure compliance with the assessment and counselling provisions of my Order; 7) Provide the Probation Officer with proof in writing that you have followed through and completed any counselling or assessment which you have been directed to take; and 8) Maintain suitable employment or a course of study at a post-secondary institution.

Heard on the 31 st day of May, the 21 st day of June, and the 3 rd day of December, 2013. Dated at the City of Edmonton, Alberta this 3 rd day of December, 2013. D.R.G. Thomas J.C.Q.B.A. Appearances: Ms. Michelle Doyle (Edmonton Rural & Regional Response Office) for the Crown Darin H. Slaferek (Slaferek Callihoo) for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ The subparagraphs were misnumbered on page 4; (12) was omitted and has now been inserted.

Schedule ‘A’ Cases cited by the Appellant [ 41 ] R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433; R v Dunn, 2013 ABQB 181 ; R v Martinuk, 2010 ABQB 514 ; R v Sumyk, 2010 ABQB 217 ; R v DED, 2007 ABQB 508 ; R v Aymont, 2008 ABPC 285 ; R v Knowlton, 2005 ABPC 29 ; R v Dixon, 2011 ABQB

255; R v Serafinchon, 2009 ABPC 308. Cases cited by the Crown [42] R v Gladue, (SCC), [1999] 1 SCR 688; R v Gouda, 2013 ABQB 121; R v Popowich, 2013 ABCA 149; R vCrazyboy, 2012 ABCA 228; R v Edmonds, 2012 ABCA 340; R v Betker, 2004 ABQB 482; R v Bonneteau (1994), 1994 ABCA 327, 157 AR 138 (CA); R v Teclesenbet, 2009 ABCA 389; R v Dunn, 2013 ABQB 181; R v Chern, 2002 ABPC 121; R vKoopman, 1999 ABCA 269; R v Lepine, 2012 ABPC 374; R v Lowe, 2012 ABPC 247; R v Youngman, 2006 ABPC 28; R v WRT, 2009ABPC 208.