R v Hartzler, 2016 ABQB 27

Court of Queen ’ s Bench of Alberta Citation: R v Hartzler, 2016 ABQB 27 Date: 20160114 Docket: 121546204Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Addison Joseph Hartzler Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] On April 20, 2015, this Court accepted a guilty plea from Addison Joseph Hartzler of the following charge: That he, on or about the 30 th day of December, 2012, did in committing an assault, cause bodily harm to Tyler Kinghorn, contrary to

section 267 (

b) of the Criminal Code of Canada [ 2 ] The parties presented this Court with an agreed statement of facts (“Agreed Statement”), which the Crown’s counsel read into the record. As well, this Court viewed a digital video disk of the assault in open court. It was satisfied that the facts outlined in the Agreed Statement dealt with the essential elements of the offence for which Mr Hartzler pled guilty. It therefore convicted him of that charge.

II. Facts [ 3 ] The digital video disk speaks for itself. It shows that Mr Hartzler and others followed Mr Kinghorn out of a building into a parkade near the Cowboys Dance Hall in Calgary, Alberta. Mr Kinghorn was ahead of Mr Hartzler, so Mr Hartzler sped up his pace and caught up to Mr Kinghorn. He tapped Mr Kinghorn on the shoulder and then pushed Mr Kinghorn. The Agreed Statement goes on to say the following: According to Mr. Kinghorn's statement, it is at this point that Mr. Hartzler whispers to Mr. Kinghorn: “I'm going to rape your girlfriend". Mr.

Kinghorn replies: “are you sure you want to do that?" To which Mr. Hartzler says: "yes" and then swings with his right fist, striking Mr. Kinghorn in the left lower jaw. Mr. Hartzler swings a second time, striking Mr. Kinghorn in the left side of his face. At this point [one of the other individuals with Mr Hartzler] enters the fight and the two of them initiate a fight with Mr. Kinghorn ... During this time period Mr. Kinghorn pu1ls a knife from his pocket to defend himself. He is seen on the CCTV holding the knife in his right hand and fending off kicks and punches from Mr.

Hartzler and [the other individual] with the other. In his statement to the police, Mr. Kinghorn states that he tells Mr. Hartzler and [the other individual] at this time to "back the fuck up”. Agreed Statement at 2. [ 4 ] The digital video disk does not capture the assault for a period of sixteen seconds, but the last part of the assault was clearly visible. It was a vicious assault, which showed Mr Hartzler kicking Mr Kinghorn twice in the head and stomping on Mr Kinghorn’s head three times, while Mr Kinghorn was lying on a concrete surface of the parkade.

The stomping is best described in the Agreed Statement, which says the following: Mr. Hartzler is captured on the CCTV kicking Mr. Kinghorn twice in the head with his right leg. Next he raises his right leg at a 90 degree angle just past his waist and then stomps on the left side of Mr. Kinghorn’s head. This causes the right side of Mr. Kinghorn's head to slam into the concrete. Mr. Kinghorn rolls onto his left side exposing the right side of his head. Mr. Hartzler lifts his leg a second time at a 90 degree angle - this time he misses Mr. Kinghorn's head making contact with the ground.

He immediately lifts his leg a third time at a 90 degree angle and stomps on the right side of Mr. Kinghorn's head - the left side of Mr. Kinghorn's head is flush with the concrete at the point of impact. It is unclear whether Mr. Kinghorn loses consciousness after the first stomp, or the third stomp. Agreed Statement at 2-3. [ 5 ] During this kicking and stomping, Mr Kinghorn was also being held and assaulted by the other individual. Being satisfied that he had done sufficient damage to Mr Kinghorn, Mr Hartzler leaves the injured Mr Kinghorn, who is lying on the concrete floor.

Mr Hartzler then enters a vehicle with the others who accompanied him out of the building, including the other attacker, and drives away. [ 6 ] The injuries that Mr Kinghorn suffered is, again, best described in the Agreed Statement, which says the following: Carla Gattinger, an independent witness, tended to Mr. Kinghorn at the scene. When she found him he was still unconscious. Blood had filled his right ear, he had multiple lacerations on his head and there were scratches all the way up his back. He was transported immediately to Rockyview Hospital. On the way to Rockyview Hospital Mr.

Kinghorn vomited twice - on arrival he was admitted for a CT Scan. The scan determined that Mr. Kinghorn had suffered a severe hemorrhagic contusion (bleeding within the brain). He also received stitches for the lacerations on the back of his head. Agreed Statement, paras 7-8. [ 7 ] The Agreed Statement also provides an outline of Mr Kinghorn’s current situation, when it says the following: He continues to this day to suffer from memory impairment; disorientation; delayed reaction time; migraines; pressure in his skull; and numbness along the left side of his body.

He has a permanent two inch scar on the back of his head and he continues to suffer from anxiety - he describes it as an "emotional numbness"; "zoned out"; and that his personality has changed "quite a bit”. Agreed Statement, para 12. [ 8 ] Mr Hartzler provides a slightly different explanation of how the attack started. He says that neither he nor Mr Kinghorn had any interaction during the evening before the attack. While riding down the elevator leading to the parkade, Mr Hartzler whispered something to one of his female friends.

Mr Kinghorn thought the comment was directed to his girlfriend, so “some banter” was exchanged between Mr Hartzler and Mr Kinghorn. Mr Kinghorn exited the elevator with his girlfriend, followed by Mr Hartzler and his friends. The rest is then captured on the digital video disk. III. Victim Impact Statements [ 9 ] Mr Kinghorn provided this Court with a victim impact statement, which says, among other things, that he is fearful and anxious in crowded places, and he has lost his sense of emotion. He has suffered from a loss of memory, has headaches, and is incapable

of articulating his thoughts. He does not “connect” with people. He could not perform his occupational skills and had to quit his job. [ 10 ] The woman with whom he had attended Cowboys Dance Hall, Ms Heather Bears, and who seen in the digital video disk, also provided this Court with a victim impact statement. She is also fearful when she enters parkades, and thought she had witnessed Mr Kinghorn’s death before her eyes. She thought that Mr Hartzler was going to rape her. IV. Mr Hartzler’s Circumstances [ 11 ] This Court ordered a pre-sentence report (“PSR”). The PSR was filed with this Court on July 6, 2015.

Mr Hartzler is 23 years of age, and was 20 years of age on the date he committed the offence. Probation Officer Lee Trudel interviewed Mr Hartzler, along with Mr Hartzler’s father, Mr Hartzler’s girlfriend and 2 of Mr Hartzler’s friends. They spoke glowingly about him. It appears that at one time, he was an elite athlete with prospects for an athletic career. That did not work out. He has a high school education, and is working full-time for a marketing company under his father. His life is unremarkable, in the sense that it was what one would expect of a normal middle-class person.

He has a good relationship with his family, and his girlfriend. All of them support him. Financially, he is in good shape. Overall, this aspect of the PSR is positive. [ 12 ] What is disturbing is how Mr Hartzler conveyed his views of the offence. Probation Officer Trudel says the following: The subject presented as aloof when canvased about the circumstances of the offence. When asked if he agreed with the circumstances of the offence the subject stated that he did: however he rationalized many of his actions as well as blamed the victim.

When canvased about his feelings on the offence he relayed that he does not feel good about the injuries he caused but did not have any knowledge about the extent of injury the victim suffered.

The subject relayed that he thinks about the offence often, he contended that he “should have walked away." When asked for further clarification, he subject showed an egoistic level of remorse and mentioned only the effect the offence has had on him; he relayed that he has lost over two years of freedom, that he is worried about what his girlfriend’s parents will think when they find out about his offence and that he does not want to be incarcerated.

The subject further reported that he "could have caused worse injuries or even killed the victim by accident" however he went on to suggest the effects this would have had on his life rather than the victim. PSR at 7. [ 13 ] Probation Officer Trudel went on to say the following: The subject appears more concerned with the effect his actions will have on his life and what will happen to him on the day of his sentencing. The subject relayed remorse for his actions when canvased but presented mostly an egoistic level of remorse for the outcome of the offence.

He did not indicate any desire to make amends with the victim or show any real concern for anything other than the effect this has had on his life. The subject also went as far as to blame the victim for the offence. It is this writer’s opinion that the subject does not feel remorse for his actions and the damage it has caused to the victim. PSR at 13. [ 14 ] Mr Hartzler disagrees with part of what Probation Officer Trudel says.

Mr Hartzler denies that he blamed Mr Kinghorn for his actions, and he does not blame Mr Kinghorn for them. [ 15 ] When this Court asked Mr Hartzler if he had anything to say before this Court considered his sentence he apologized to Mr Kinghorn. He also said that his actions were out of character for him, as he is not a violent person. He did not intend to hurt anyone, and that his judgment was affected by the alcohol he had consumed that night. He told Mr Kinghorn that he takes full responsibility for his actions.

What was important to this Court is that Mr Hartzler faced Mr Kinghorn and looked at him directly while he was making his comments. [ 16 ] Mr Hartzler has a criminal record, which includes possession of a prohibited weapon for which he was convicted 2 days before the offence now before this Court, and a failure to attend. He was also convicted of assault in April of 2012, 8 months before the offence now before this Court, for which he received a suspended sentence and probation.

On March 6, 2009, he was convicted of assault with a weapon, for which he received a conditional discharge. [ 17 ] On the charges before this Court, Mr Hartzler served fifteen days of pre-trial custody during the time when he would receive a 1.5 to 1 credit. [ 18 ] Mr Hartzler has abided by his conditions of his recognizance order. Said differently, he has not breached any of those conditions from the time of his release to the date of his sentencing submissions. V. Analysis [ 19 ] When this Court imposes a sentence, it must abide by the principles outlined in Criminal Code

Part XXIII. Criminal Code ss 718.1 and 718.2, which are contained in that Part, provide as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2. A court that imposes a sentence shall also 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, [...] (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [...] [ 20 ] In R v Arcand , the majority of Alberta Court of Appeal provides us with an explanation of many of the principles that the Criminal Code outlines. With respect to Criminal Code s 718.1, it said the following: What is meant by "gravity of the offence"? This concept is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values.

What influences that analysis apart from the degree of injuriousness inherent in the crime itself? The answer lies in s. 718.2. ... Arcand at paras 57. [ 21 ] The majority of Alberta Court of Appeal went on to say the following: ... The object of the sentencing exercise is to draw on all sentencing principles in determining a just and appropriate sentence which reflects the gravity of the offence and the degree of moral blameworthiness of the offender. ... ... Nothing is more important than the proportionality principle. Arcand at paras 63 and 65. [ 22 ] What did the Arcand court mean by “moral blameworthiness”?

It said the following: Proportionality is based on a simple, yet compelling, premise. The severity of sanction for a crime should reflect the overall degree of moral blameworthiness, that is the seriousness, of the criminal conduct. And that is properly measured by two things: the gravity of the offence and the offender's degree of responsibility. Or to put it the way that Andrew von Hirsch and Andrew Ashworth have done: The principle of proportionality requires the severity of penalties to be determined by reference to the seriousness of crimes.

In other words, sanctions should be scaled according to the seriousness of the criminal conduct. Arcand at paras 48-49 (footnotes excluded). See also R c Lacasse , 2015 SCC 64 [ Lacasse ] at para 12 . [ 23 ] The Arcand court went on to explain how severely crimes should be sanctioned relative to each other, which it termed “ordinal proportionality,” and that categories within an offence should be based on the varying degrees of seriousness, which it termed “cardinal proportionality”: Arcand at paras 50-51. Both aspects of proportionality require courts to undertake a comparison.

Thus, when a court assesses moral blameworthiness, other cases will assist it in its analysis. [ 24 ] In Lacasse , Wagner J, for the majority, summarized how sentencing courts will apply proportionality when it said the following: ... Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Lacasse at para 53 . [ 25 ] This Court considers it useful to break down the forgoing general principles and discuss them separately. A. Gravity of the Offence [ 26 ] In Arcand , Fraser CJA said, the gravity of the offence “is directed to what the offender did wrong.” The victim impact statements that Mr Kinghorn and Ms Bears outline the harm that Mr Hartzler has caused to them. [ 27 ] This was a cowardly attack that Mr Hartzler and another individual perpetrated on Mr Kinghorn. It was cowardly in the sense that he and the other individual “jumped” Mr Kinghorn.

There might have been words exchanged between Mr Hartzler and Mr Kinghorn, but Mr Kinghorn was walking away from the situation, when Mr Hartzler sped up his pace to catch up with Mr Kinghorn. [ 28 ] Mr Kinghorn did not have a chance. Once the 2 attackers completed their pummeling of him, Mr Hartzler could not resist the temptation to level the final blows to Mr Kinghorn’s head by stomping on it, not once, but twice, while Mr Kinghorn was lying on the concrete floor of the parkade.

Mr Hartzler is very lucky that he is not before this Court on second degree murder charges. [ 29 ] Quite simply, Canadian society does not tolerate violence of any sort, but especially violence of such a nature as was presented in this case. A very troubling aspect of this case is that Mr Hartzler, after his cowardly attack on Mr Kinghorn, did not even have the humanity to call emergency responders to assist Mr Kinghorn. Rather, he simply left Mr Kinghorn to lie there, suffer and possibly die. B. Planning and Deliberation

[30] Mr Hartzler argues that because there was no interaction between him and Mr Kinghorn during the evening, there was noplanning or deliberation. That may be so, but neither was it a spontaneous, impulsive act. Mr Kinghorn was walking away from thesituation, but Mr Hartzler could not leave it at that. He had to catch up to Mr Kinghorn. Mr Kinghorn was in a vulnerable position. Hewas up against 2 individuals who were clearly looking for a fight.

Again, that is unacceptable to this Court and to Canadian society. [31] In R v Perepelecta, 2004 ABPC 88, the accused was charged with aggravated assault in a case involving a beer bottle. Thecourt found that the accused’s offence was “best characterized as an impulsive act as opposed to premeditated or planned.” It went on tosay at para 25: She did not deny her assault of the victim, just her legal motive or responsibility for it. Ms.

Perepelecta's relative degree of moralculpability is thereby at the minimum end on the scale of fault for this type of offence, and an appropriate sentence should reflect this. [32] Based on the various factors that the court outlined, it concluded that a 12-month conditional sentence would be a fit andproper sentence in that case. [33] In this case, Mr Hartzler’s attack on Mr Kinghorn did not have the planning and deliberation that, for example, an individualmight have where words were exchanged earlier in the evening, and carried on through the night.

However, it was not an impulsiveattack, where the attack occurred during the course of an argument. The “banter” was over and Mr Kinghorn was extricating himselffrom the situation. Mr Hartzler then chased Mr Kinghorn down. This increases Mr Hartzler’s moral culpability. [34] Mr Hartzler also argued that he was “extremely intoxicated.” This Court does not accept that characterization of Mr Hartzler’sphysical condition. In fact, from its viewing of the digital video disk, this Court is convinced that he was not extremely intoxicated. C. Parity [35] Criminal Code s 718.2(

b) provides as follows: 718.2. A court that imposes a sentence shall also take into consideration the following principles: […] (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [36] Assault causing bodily harm is not unlike manslaughter, in the sense that there are degrees of assault causing bodily harmfrom a near accident to the extremely serious. Chief Justice Fraser stated the following in R v KKL (1995), 1995 ABCA 196 ,165 AR 375 at paras 6-7 (CA) [footnotes omitted]: ... Different degrees of moral culpability attach to each along a continuum within that spectrum.

It is precisely because a sentence formanslaughter can range from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes whatrung on the moral culpability ladder the offender reached when he committed the prohibited act. The purpose of this exercise is to ensurethat the sentence imposed fits the degree of moral fault of the offender for the harm done. [37] In the case of assault causing bodily harm, the sentences range from a suspended sentence to 10 years imprisonment. [38] The parties provided many cases that deal with sentencing in assault causing bodily harm.

Importantly, it is not the role of thisCourt to dissect the cases and try to layer aspects of those cases on to the case with which this Court is dealing. This is in keeping withthe British Columbia Court of Appeal’s statement in R v Chinneck, 2005 BCCA 346 at para 17, where it said the following: Although the cases cited by the appellant are relevant in a general sense, each case must be assessed on its particular facts. It is not usefulto list and compare between cases the discrete aggravating and mitigating factors and to assign a sentence based on the presence orabsence of one or more of them.

To do so lends an unrealistic and unwarranted air of objective measurement to the process. That is not aproper approach. The sentencing judge in this case considered all of the relevant sentencing factors, aggravating and mitigating.

He wasentitled to weigh them and to give such weight to them in exercising his discretion as he saw fit. [39] In Lacasse, Wagner J confirmed this when he said, “The determination of a just and appropriate sentence is a highlyindividualized exercise that goes beyond a purely mathematical calculation”: Lacasse at para 58. [40] In R v Van Wezel, 2005 ABCA 337, the accused was convicted of assault causing bodily harm. The accused punched thevictim, who fell to the ground. The accused continued to punch the victim in the face. The final punches were delivered when the victimwas on his knees.

The accused then left the scene without seeking help for the victim. The Crown sought 18 months to 2 years less aday. The accused was seeking a conditional sentence. The sentencing judge, as well as the appeal judge considered the fact that that theaccused was a responsible father, with shared custody of his children as mitigating. The appeal judge felt that the accused posed a dangerto the community, with a risk of re-offending, having been convicted previously of assault and twice for obstructing a police officer.

Aswell, he had breached his recognizance, so the appeal judge did not feel a conditional sentence would be appropriate. Accordingly, itimposed a sentence of 10 months imprisonment, along with 12-months’ probation thereafter. The mitigating factor in that case is notpresent in the case at bar. [41] In R v Patron, 2009 ABCA 346, 464 AR 52, Slatter JA was considering an appeal from a sentence for assault causing bodilyharm arising from a road rage incident.

The accused in that case struck the victim several times, and continued to strike and kick thevictim, even though the victim did not retaliate and was essentially helpless. The injuries were significant. The trial judge imposed asentence of 7 months imprisonment, followed by 12 months’ probation, on the basis that the accused remained a danger to thecommunity, and had not accepted full responsibility for his attack. In that case, there was no mention of whether the attack wasimpulsive, or was planned and deliberate.

[ 42 ] In R v Bandesha , 2013 ABCA 255 , 556 AR 1, the accused was convicted of assault causing bodily harm after taking

part in group attack on a woman. The group was trying to coerce the woman into marriage against her will. The group pushed the victim, pulled out of large clump of hair by roots, and kicked her in the stomach while she was lying on floor. The accused had no criminal record, was permanent resident, and owned and operated his own long-distance truck. To avoid the danger of deportation and difficulty in crossing the American border, the trial judge gave the accused a conditional discharge.

Côté JA for the court allowed the Crown’s appeal found that immigration consequences cannot make a sentence disproportionate to gravity of offence or degree of the accused's responsibility. As well, the trial judge failed to consider the principle of denunciation. Because this was a group attack, the assault was more serious. In this regard, Côté JA said the following at paras 20-21: … A victim ordinarily has no chance of escaping or vanquishing four attackers. The potential result is very serious, and the whole thing must be terrifying for the victim.

This was not only assault causing bodily harm; it was a serious form of that crime. That must have a large impact upon proportionality. Because a co-accused was given a sentence of 90 days, Côté JA felt he was unable to “go higher.” Accordingly, he gave the accused the same sentence. From this Court’s review of the case, Côté JA was applying the principle of parity when he imposed the sentence. [ 43 ] In R v Sweeney , 2000 CarswellOnt 5276 (Ct Just) , Greco J found the accused guilty of assault causing bodily harm when, after the accused had knocked the victim to the ground.

While the victim was lying unconscious, viciously stomped on him. Greco J also noted the accused’s “excellent pre-sentence report,” which “depicts the accused as being anything but a violent person.” The accused had no criminal record. The court in that case granted the accused a conditional discharge. In this case, Mr Hartzler does not have the same characteristics as the accused in that case. He has a criminal record that shows his predilection for violence.

As well, although the PSR is relatively positive, in most respects, this Court has a concern about the equivocal nature of Probation Officer Trudel’s comments on Mr Hartzler’s acceptance of responsibility for his crime. [ 44 ] In R v Vail-Paris , 2014 ABPC 42 , Fradsham PCJ was dealing with a situation in which the accused struck the victim several times with a baseball bat, while the victim was on the ground. This was the result of a bar fight, after the victim had been damaging property in and around the bar. The accused was not intoxicated.

The accused was 19 years old at time of offence with no prior criminal record. He pled guilty to assault with weapon, and had a positive presentence report. He had taken counselling to deal with his anger management and was remorseful. Fradsham found that the crime was not impulsive, the accused was not being threatened, and he was backed up by group of people. Fradsham J gave the accused a suspended sentence with probation for period of 12 months.

In the case at bar, the PSR was not entirely positive and there is nothing before this Court which shows that Mr Hartzler has taken any form of counselling. [ 45 ] In R v Neuberger , 2014 ABPC 275 , Redman PCJ was dealing with a road rage incident in which the accused and two others beat up the victim. The accused continued to beat the victim even when the victim was down. Redman PCJ convicted the accused of assault causing bodily harm. The Crown was seeking a sentence of 7 to 12 months incarceration. The accused was seeking a conditional sentence order.

The accused had positive pre-sentence report and Redman PCJ held that a conditional sentence would impose hardship on accused's family and employment. He found that there was an element of pre-meditation, it was an unfair fight with 3 against 1, and there were multiple blows struck when complainant was on ground. He imposed a $5,000 fine, which was suitable punishment in the circumstances. He found that denunciation and deterrence were important principles although specific deterrence was not necessary as accused was not community safety risk and assault was an aberration from his normal behavior.

He also said that the accused’s conduct had to be denounced and sentence had to serve as substantial warning to others that this type of behaviour would not be tolerated. Again, in the case at bar, the PSR was not entirely positive. As well, Mr Hartzler’s criminal record shows that the violence he perpetrated against Mr Kinghorn was not an aberration from his normal behaviour. [ 46 ] In R v Khan , 2000 BCSC 102 , Romilly J was considering a situation in which the victim stopped to pet the accused’s girlfriend’s dog.

In a jealous fit of rage, the accused attacked the victim causing the victim to fall to the ground. Once on the ground, the accused stomped on the victim’s head twice, not unlike this case. The accused was found guilty by a jury. The accused was seeking a conditional sentence. He had a minor, unrelated criminal record and had the support of his family and employer. He had shown remorse. Although Romilly J noted that a conditional sentence is available for even violent crimes, the sentencing judge must be satisfied that such a sentence would be consistent with all the purposes and principles of sentencing.

Romilly J rejected the accused’s submission that he should receive a conditional sentence and sentenced him to 9 months incarceration. In so doing, Romilly J said the following at para 10: The case at bar obviously represents a case of gratuitous violence; it represents

an act of hooliganism that cannot be tolerated or condoned by the court. Although I am satisfied that the issue of general deterrence has to be stressed in this case, I must also consider the issue of specific deterrence and denunciation. In the case at bar, Mr Hartzler has a related criminal record, and his PSR indicates that his remorse might not be genuine. [ 47 ] In R v Patton , 2011 ABCA 199 , 505 AR 394 [ Patton ], the accused was appealing his sentence of forty-eight months incarceration he received for one count of assault causing bodily harm and one count of uttering threats to cause bodily harm.

The accused and another approached the victim while the victim and another person were sitting in a parked vehicle. The accused told the victim to "Go apologize [to the woman] or I'll give you three broken ribs." A school resource officer, approached and an altercation ensued between the officer and the person who accompanied the accused.

While the officer was kneeling on the other individual’s back, and using both hands to handcuff him, the accused kicked the officer in the side of the head with a “football-styled kick” that was intended to, and did, “inflict serious injury.” The victim continued to suffer from migraines and neck problems at the time of sentencing. The sentencing judge characterized the attack as “cowardly.” [ 48 ] The accused pled guilty to one count of assault causing bodily harm and one count of uttering threats to cause bodily harm. He was twenty years old at the time of the offences.

The sentencing judge noted that the accused’s pre-sentence report was unfavourable. He specifically referenced that the appellant's risk of violent recidivism was moderate and that the appellant did not appear to understand

the gravity of his offences or the impact his actions had on the victim, that he had little respect for law enforcement, and that he believed his actions were necessary or justified. The sentencing judge held that denunciation and deterrence were the key sentencing factors. He noted there were serious aggravating factors; a kick to an officer's head resulting in serious injuries. Regarding mitigating factors, the sentencing judge noted the appellant's guilty plea but questioned how much genuine remorse the appellant felt.

He also noted that, while the appellant may have been immature and impulsive when he committed the offences, he was an adult and he had seriously injured an officer. The sentencing judge said he took the appellant's risk to re-offend and negative lifestyle choices into account. He held that, together, all the relevant factors mandated that the appellant receive the custodial sentence that he then imposed. [ 49 ] The Alberta Court of Appeal noted, as mentioned earlier, that “It is always difficult to compare facts in previous decisions to facts before a sentencing court”: Patton at para 15 .

Moreover, it said the following: Finally, assault causing bodily harm is to a degree a consequence-based offence. With respect to such offences the severity of the harm will normally be a relevant factor in sentencing. Moreover, a football style kick to the head would normally be expected to result in substantial harm to its recipient. Such a kick carries with it a real risk of causing death with the potential of conviction for second degree murder and the near certainty of a manslaughter conviction.

Patton at para 1 . [ 50 ] In upholding the trial judge’s decision, the Alberta Court of Appeal said that with these types of serious offences, denunciation and deterrence are the prime considerations in sentencing. [ 51 ] The reason this Court provided a lengthy narrative on Patton is because of the similarities it bears with the case at bar, other than the fact that Mr Hartzler assaulted a civilian rather than a peace officer. [ 52 ] In R v Reid , 2015 ABCA 334 [ Reid ], the accused was convicted by a jury of assault causing bodily harm. The victim was the accused’s boss.

They were at a party, where the accused was drinking. At some point during the party, the accused behaved belligerently and the victim was asked to intervene and deal with him. A physical fight between the two ensued. The victim took the accused to the ground and held him there. The accused left the party. [ 53 ] The victim “continued to stew” about the accused’s behaviour and called the accused several times to find out where he was. The sentencing judge found that this was for the purpose of promoting a further confrontation. The two eventually met and started yelling. A fight ensued.

The accused landed a solid blow to the victim’s face. The victim dropped to the ground and was rendered unconscious or incapable of further fighting. The accused jumped on top of the victim and landed several more blows with his fists to the victim’s face. He then delivered several blows to the victim’s head using his feet. A witness described the kicks to the head as like “kicking a soccer ball”. [ 54 ] The victim suffered multiple facial fractures, lacerations and a concussion. He described himself as having major anxiety that impacted his daily living.

He was hospitalized, had difficulty seeing for a few weeks and lost confidence. He was out of work for 8 months and at the time of trial had residual numbness in his right cheekbone. [ 55 ] The sentencing judge imposed a twelve-month conditional discharge. The Alberta Court of Appeal allowed the appeal and imposed a sixty-day intermittent sentence followed by 2 years’ probation. The Crown had sought a custodial sentence of 8 to 9 months. The accused sought a conditional discharge or a fine or probation.

The accused submitted that the mitigating factors were his relative youth (age 29), previous good character and compliance with relatively unrestrictive bail conditions. He also argued there was an element of provocation to the offence, he was cooperative and showed immediate concern for the victim and that incarceration could have a negative impact on his family. The sentencing judge described the pre-sentence report as one of the strongest he had seen. [ 56 ] The Alberta Court of Appeal found that the offence “was one of serious gratuitous violence, resulting in serious bodily harm”: Reid at para 20 .

As a result, it “demands denunciation”: ibid . [ 57 ] The Alberta Court of Appeal also found “nothing exceptional about the circumstances of the accused. It did find, however, that the accused displayed genuine remorse and that he was “evidently a good parent and friend”: Reid at para 22 . Furthermore, the accused had complied with his release conditions for almost 3 and one-half years, he was a family man who was gainfully employed and he had pursued counselling. These positive attributes were “significant factors” in the Alberta Court of Appeal’s decision. [ 58 ] The case at bar differs from Reid .

In Reid , there was a relationship between the accused and the victim. Here, the parties were strangers. As well, in Reid , there was provocation in that the victim had ejected the accused from a party. In the case at bar, there was no provocation and, if there was, Mr Kinghorn was extricating himself from the situation. The accused in Reid had no prior convictions that involved violence. Here, Mr Hartzler has previous, relatively recent convictions. Finally, in Reid , the accused had shown genuine remorse.

This Court will address the issue of remorse later in these reasons. [ 59 ] In R v Gladue , 2012 ABCA 118 , 522 AR 254, an intoxicated victim was damaging residence of accused and his grandmother, for whom the accused was very protective. The accused and another person beat victim until he fell unconscious on floor. The accused pled guilty to one count of assault causing bodily harm and was sentenced to 17 months incarceration. The Alberta Court of Appeal allowed the accused’s appeal and gave him a sentence of 11 months, followed by probation of 12 months.

In so doing, the Alberta Court of Appeal found that the trial judge made no express finding that the accused intended to inflict grievous harm on the victim, and did not articulate the comparisons he was making when considering parity. As well, the trial judge did not give adequate consideration to the accused’s youth and potential for rehabilitation. [ 60 ] Finally, in R v Lausberg , 2013 ABCA 72 , 544 AR 56, the accused with no stated previous record of offences, pled guilty to and was convicted on charges of assault causing bodily harm and theft.

The victim was accused's former long-term partner and mother of accused's children. After their relationship ended, the accused asked for return of certain personal property. When victim met with the accused to return property, the accused violently assaulted her, choking her with her own scarf to point of unconsciousness. The accused left the victim on the ground and stole and damaged her vehicle. The sentencing judge sentenced the accused to a 90-day intermittent

term of imprisonment, together with two-year period of probation. The Crown appealed that sentence. The Alberta Court of Appeal allowed the appeal and imposed a sentence of two years less a day and 2-years’ probation. The Alberta Court of Appeal discussed the issue specific to that case, which involved violence being perpetrated on a domestic partner. It did note as well that the assault was serious and that the accused left the victim lying in a parking lot.

Finally, it noted that but for the Crown’s position on sentence, it might have imposed a higher custodial term. [ 61 ] Mr Hartzler had a previous conviction for assault causing bodily harm. He was convicted 8 months before he committed the offence that is now before this Court. As well, he was convicted of possession of a prohibited weapon 2 days before the offence now before this Court. Mr Hartzler is a violent man. Although the courts use the phrase general and specific deterrence in sentencing, what do they really mean?

In R v Nasitwitsi , 2011 BCPC 327 , Gove PCJ said the following at para 20: This is the sort of case where in weighing the considerations on sentencing, the community requires protection. It requires protection through deterrence of this man as well as the deterrence of others through a strong statement on sentencing principles. Denunciation plays a role. [ 62 ] This Court recognizes that conditional sentences are sometimes more onerous than custodial sentences.

However, they might not have the same deterrent and denunciatory effect as a custodial sentence. [ 63 ] All of these cases show that there is a huge range of sentences involving the crime of assault causing bodily harm. Perhaps this is best illustrated by the Alberta Court of Appeal’s decisions in Reid (60-days intermittent, plus 2 years’ probation) and Patton (forty-eight months). This Court has tried to point out the features that distinguish those cases from the case at bar.

To do more would be to fall within the caution against using a pure “mathematical calculation” that the Supreme Court of Canada warned against in Lacasse . VI. Aggravating and Mitigating Circumstances [ 64 ] Criminal Code s 718.2(

a) says that the court must take into consideration the fact that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ...” [ 65 ] Mr Hartzler pled guilty to the charge of assault causing bodily harm. This shows, to a certain extent, that he has taken responsibility for his actions. He has been compliant with his release conditions. [ 66 ] Probation Officer Trudel discussed the equivocal nature of Mr Hartzler’s remorse.

This Court accepts that report and Probation Officer Trudel’s finding, other than on the issue of Mr Hartzler shifting the blame to Mr Kinghorn. Despite Probation Officer Trudel’s comments, this Court was present to witness the apology that Mr Hartzler expressed to Mr Kinghorn. The fact that he had the courage to look Mr Kinghorn in the eye when he was providing his apology speaks to his sincerity while giving it.

This is a mitigating factor. [ 67 ] As well, this Court also recognizes Mr Hartzler’s relative youth and the support he has received and is receiving from his family. [ 68 ] The primary aggravating factor relates to the offence. It is assault causing bodily harm and the courts have recognized that this is a serious offence. Criminal Code s 718.2 says that the sentencing court must look at relevant aggravating or mitigating circumstances “relating to the offence.” In other words, what caused Mr Hartzler to commit the offence in the first place?

He provided his explanation, but, to this Court’s mind, that explanation is not good enough to lessen the seriousness of the offence. Mr Kinghorn was walking away from the situation, and Mr Hartzler wanted it to escalate, which it did.

Mr Hartzler’s explanation is not a mitigating factor, and the cowardly way in which he and the other individual attacked Mr Kinghorn shows the seriousness of the offence, and exhibits Mr Hartzler’s moral blameworthiness. [ 69 ] All of the cases that the Crown and Mr Hartzler provided to this Court are of assistance to this Court inasmuch as they provide a range of sentence depending on the severity of the incident and the accused’s personal circumstances. In other words, they assist this Court in establishing the accused’s moral culpability. The sentences provide a broad range.

As mentioned during this Court’s review of the cases, many are distinguishable. Some are not. [ 70 ] All of this takes us back to the principles on which this Court must base its determination of a fit and proper sentence. In addition to the aggravating and mitigating circumstances, Criminal Code s 718.2 points to other principles that this Court must consider, being: 718.2 (

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, ... [ 71 ] In this case, proportionality demands that Mr Hartzler be incarcerated. [ 72 ] As well, this Court must be aware of the overriding principles that a court must consider, which are contained in Criminal Code s 718, which provides: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(

a) to denounce unlawful conduct; (

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

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

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [73] What is Mr Hartzler’s degree moral blameworthiness? The offence of assault causing bodily harm is serious and one thatsociety considers particularly harmful. Parliament set the maximum penalty for this offence to be 10 years imprisonment.

When oneconsiders Mr Hartzler’s moral blameworthiness, Arcand tells us that we must, among other things, consider his “motive for committingthe crime.” This Court has reflected on Mr Hartzler’s sentencing submissions trying to determine Mr Hartzler’s motive for committingthis crime. “Banter” between 2 individuals does not provide a motive, especially when one of the “banterers” is extricating himself fromthe situation. Accordingly, Mr Hartzler’s motive for committing the crime is as unjustified as is the excessive force he used.

His moralblameworthiness is very high. [74] This Court finds that Mr Hartzler poses a threat to the community. He was convicted a mere 8 months for assault before hecommitted the assault causing bodily harm on Mr Kinghorn, and had a previous conviction for assault with a weapon. As well, he wasconvicted a mere 2 days before the offence now before this Court of possession of a prohibited weapon. Mr Hartzler is a dangerous man.As well, he has taken no steps towards his rehabilitation. [75] Does a non-custodial sentence meet the objectives of denunciation and deterrence?

Criminal Code s 742.1 provides asfollows: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent withthe fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in thecommunity, subject to the offender's complying with the conditions of a conditional sentence order made under

section 742.3. [76] The Supreme Court of Canada’s decision in R v Proulx, 2000 SCC 5 , [2000] 1 SCR 61, is often-cited case for itsanalysis of the conditional sentence regime. It discussed at length the “safety of the community” aspect in at paras 63 to 76. This Courthas considered that discussion and concludes that Mr Hartzler would be a danger to the community, and that giving him a non-custodialsentence, or even and intermittent sentence, would not be consistent with the fundamental purpose and principles of sentencing. VII.

Sentence [77] Mr Hartzler, please stand up. [78] The Crown has asked that I sentence you to 2 years less one-day, plus 2 years’ probation. You have asked for an intermittentsentence “at the lower end.” [79] The Crown’s request is slightly excessive given the mitigating circumstances that this Court has found.

Because of theaggravating circumstances that this Court has found, your request for a reduced sentence is not fit and proper. [80] Taking into consideration the principles of sentencing set forth in the Criminal Code, including, the aggravating andmitigating factors, your circumstances, the factors outlined in Criminal Code s 718.2, including subsections (b), (

d) and (e), this Courtconcludes that a fit and proper sentence would be for you to be incarcerated in an appropriate facility for a period of fifteen months. Youwill receive credit for the fifteen days you spent before your pre-trial release on the basis of 1.5 days for each day you spent in pre-trialcustody, which accords with the Supreme Court of Canada decision in R v Summers, 2014 SCC 26, [2014] 1 SCR 575. [81] In addition, on your release, you will be subject to a probation order for a further period of 18 months, which requires you to: 1. Keep the peace and be of good behaviour. 2.

Abstain from communicating, directly or indirectly, with Mr Kinghorn or Ms Bears, unless they give their consent in writing foryou to communicate with them. 3. Appear before the court when required to do so by the court. 4. Immediately notify the designated probation officer of your residential address and telephone number. 5. Report to a designated Adult Probation Office in Calgary within 3 business days following your release. After that, you will

report to your designated probation officer in such manner and at such times as the designated probation officer requires. 6. Notify the designated probation officer in advance of any change of name or address and promptly notify the designated probation officer of any change of employment or occupation. 7. Not to leave Alberta without the prior written approval of the designated probation officer, and only in accordance with that approval. 8.

If you agree, and subject to a programme director’s acceptance of you, participate actively in a counselling programme approved by the province, including if accepted, anger management. 9. Abstain from the consumption of alcohol or other intoxicating substances, and abstain from the use or consumption of drugs, except in accordance with a medical prescription. [ 82 ] Under Criminal Code s 732.2(3), you have the right to apply to change the additional conditions of the probation order, if a change in circumstances occurs after these conditions are imposed.

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

If the court makes a change to your probation order, you will be informed of that change and a new copy of the order will be given to you.

You will be required to comply with the order as changed. [ 83 ] Pursuant to Criminal Code s 732.2(5), if you are convicted of an offence during your term of probation, including the offence of violating the probation order, you may be brought back to court and the court can add to the conditions this Court has imposed or extend the period of probation. [ 84 ] Under Criminal Code s 733.1, if you wilfully fail or refuse to comply with the conditions of probation, such failure or refusal to comply is a separate offence of which you may also be convicted and sentenced. [ 85 ] With respect to the probation aspect of your sentence, this Court further directs that the Clerk of the Court is to provide you with a copy of the probation order and an explanation if requested. [ 86 ] Pursuant to Criminal Code s 109, this Court orders that you not possess a firearm, crossbow, ammunition, restricted weapon or explosive substance or anything that can be converted into an explosive substance for a period of 10 years from the date of your release from incarceration and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

If you have any firearms or those other items in your possession or at your place of residence you must surrender them to the designated Probation Officer. [ 87 ] You must surrender to the designated Probation Officer any authorization license or registration certificate or other document enabling you to acquire or possess a firearm or those other items. [ 88 ] As well, assault causing bodily harm is a primary designated offence under Criminal Code s 487.04.

Accordingly, this Court orders that you submit to the authorities for the taking one or more of your bodily substances required for the purpose of forensic DNA analysis. Heard on the 4 th day of November, 2015, the 11 th day of December 2015, and the 7 th day of January, 2016. Dated at the City of Calgary, Alberta this 14 th day of January, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances:

R. Greenwood Crown Prosecutor's Office for the Crown L. K. Ross Ross, Hepner for the Accused