R v BMH, 2016 ABQB 622

Court of Queen’s Bench of Alberta Citation: R v BMH, 2016 ABQB 622 Date: 20161107 Docket: 140276882S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - BMH Respondent _______________________________________________________ Reasons for the Decision of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ Appeal from the Sentence by The Honourable Judge M.L. Graham on the 6 th day of July, 2015 (Alberta Provincial Court , Docket: 140276882P1) I. Introduction

[ 1 ] The Crown charged the Respondent BMH with committing an assault with a weapon on his 7-year old stepson (AZ), contrary to

section 267 (

a) of the Criminal Code . The weapon he used was a belt. The Respondent pled guilty, and the learned Provincial Court judge (“PCJ”) directed that the Respondent be conditionally discharged. The Crown appeals that sentence. II. Background [ 2 ] The parties presented the PCJ with an agreed statement of facts, which indicate that on March 6, 2014, the Royal Canadian Mounted Police attended AZ’s school with Child and Family Services concerning possible abuse against AZ. AZ advised that the Respondent had disciplined him the day before for lighting paper on fire in his bedroom.

The Respondent took AZ into a bedroom and strapped him with a leather belt that had metal star-shaped studs on it. [ 3 ] AZ had marks on his left forearm, which were consistent with the type of belt he described. The marks were red welts and light bruising with two distinct star-patterned marks. On AZ's back, just above his buttocks, he had more bruising with a distinct puncture mark. The police attended the Respondent’s residence.

The Respondent admitted that he had disciplined AZ in the manner that AZ described. [ 4 ] Before the trial commenced, the Respondent pled guilty to the charge. [ 5 ] The PCJ accepted the Respondent’s guilty plea and some months later, she received sentencing submissions from counsel. She also received a pre-sentence report. The Crown was seeking a custodial sentence in the range of 9 to 12 months. The Respondent was seeking a conditional discharge. III. The Sentencing Decision [ 6 ] During his submissions, the Respondent’s counsel provided the PCJ with the background that led to the Respondent’s assault on AZ.

Some of that background is not relevant for the purposes of this Court’s decision, but some is. AZ had been diagnosed with attention deficit and hyperactivity disorder and oppositional defiance disorder.

AZ had set other fires in the family home, which included a fire in a bathroom, setting a couch on fire, and the setting of the fire that resulted in the assault that the Respondent committed on AZ. [ 7 ] Because of this behaviour, and the failed attempts to curtail it through imposing “time-outs,” depriving AZ of certain privileges, and showing him pictures of the dangers involved in lighting fires, and given the rise in AZ’s aggressive behavior, AZ’s mother took off her belt and asked the Respondent to strap AZ. [ 8 ] The Respondent strapped AZ with the belt 3 times.

The Respondent argued that his intention was to discipline AZ for his conduct and to deter AZ from similar conduct in the future.

He further argued that the strapping was not administered with the intention of hurting AZ and it was not done with any malice. [ 9 ] As a result of the strapping, AZ received a small puncture above his buttocks area, presumably from the studs on the belt, minor bruising near the area of this puncture and bruising on his left forearm, together with a puncture on his ring finger, presumably when he tried to protect himself while being strapped. [ 10 ] The Respondent cooperated fully with the police and he admitted his actions and the reasons for his actions.

The police left the children in the home as they had no concern of further risk to the children. [ 11 ] Alberta Child and Family Services became involved once the police notified it of the charges against the Respondent. The involvement resulted in the imposition of a supervision order for an initial 6 months with an extension for a further 3 months.

The supervision order terminated on January 8, 2015. [ 12 ] The pre-sentence report said that the Respondent and AZ’s mother felt powerless in their home environment because of the children’s behaviour but, through counselling, the mother and the Respondent had learned how to discipline the children without physical methods and through the use of non-spanking punishments.

The pre-sentence report further discussed the positive changes that the Respondent had made, his readiness to accept advice and counselling, and his desire to partake in further programs. [ 13 ] The PCJ observed that a condition of the Respondent's employment required extensive travel to the United States. He had been employed with the same employer for thirteen years, 9 months at the time of the sentencing, and he had a good employment record. He had a limited previous criminal record, which included one count of assault simpliciter in a domestic context, for which he was convicted in 2001.

The Respondent received a suspended sentence for that conviction. The PCJ noted that the Respondent was not a man "with a record for violence in any significant way": Transcript of Proceedings, July 6, 2015, p 50, ll 40-41. He also had a 2007 conviction for careless driving and refusing to provide a breath sample. [ 14 ] The PCJ also reviewed the Respondent's other parental obligations relating to his 2 biological children from a previous relationship.

He paid $3,184 per month in support to the mother of those children and he was a very good provider to all of the children, including the children with whom he lived. [ 15 ] The Respondent was not under the influence of alcohol at the relevant time. As well, the PCJ noted that this only happened once and that it was not an ongoing behaviour pattern. [ 16 ] The Respondent entered a guilty plea, which the PCJ considered a mitigating factor. [ 17 ] The PCJ spent some time commenting on the frustration that AZ’s parents experienced when trying to discipline him. She

recognized that the Respondent was in a position of trust as the father figure to AZ, which was a statutory aggravating factor. The PCJindicated that the Respondent would have been aware that there would be “some harm or pain associated with what he did to AZ,” butdid not conclude that the Respondent intended to cause AZ bodily harm: Transcript of Proceedings, July 6, 2015, p 52, ll 20-24.

It washer understanding that AZ had fully recovered from his injuries: Transcript of Proceedings, July 6, 2015, p 49, l 28. [18] The PCJ noted that there was no weapon involved "other than the belt." She dismissed the Respondent’s prior criminal recordas being insignificant. [19] The PCJ reviewed the Alberta Court of Appeal’s decision in R v Nickel, 2012 ABCA 158, 68 Alta LR (5th) 1, 524 AR 366[Nickel]. On her reading of that case, she felt that it was the moral culpability of the offender that she must assess.

In so doing, she had toexamine the actus reus, which was the actual action that exposed AZ to harm, as well as the mens rea or the Respondent’s intention, hisstate of mind or state of awareness. [20] She took into account the Respondent’s personal circumstances, but she said those facts were not as important in this type ofoffence as was his degree of responsibility. [21] The PCJ concluded, based on the above factors, that this was an “exceptional case” where a conditional discharge would beappropriate. IV.

Discussion [22] The parties agree on the standard of review that this Court must apply when it considers the appeal of a sentence that aProvincial Court judge imposes. This Court may intervene to vary the sentence if the PCJ has committed an error of principle, failed toconsider a relevant factor, overemphasized appropriate factors, or imposed a sentence that is demonstrably unfit. This standard of reviewapplies both to the length and the type of sentence that she imposed: R v M(CA) (1996), (SCC), 105 CCC (3d) 327 at374 (SCC).

Even in the face of such an error, this Court may affirm the sentence she imposed “if the disposition is a ‘fit’ sentence”:Nickel at para 8. [23] The standard of review for fitness of a sentence is one of deference. In R v Shropshire, (SCC), [1995] 4 SCR227 at 249-50, Iacobucci J, for the court, said the following: ... An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought tohave been made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentenceshould only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable. I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), (NS CA), 98N.S.R. (2d) 238, and R. v. Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119.

In Pepin, at p. 251, it was held that: ... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we mustdetermine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive. Further, in Muise it was held at pp. 123-24 that: In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless thesentence imposed is clearly excessive or inadequate. ... . . . The law on sentence appeals is not complex.

If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming thetrial judge applied the correct principles and considered all relevant facts ... My view is premised on the reality that sentencing is not anexact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender.

The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range.In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence isinadequate or excessive. [Emphasis added]. [24] This Court has jurisdiction to hear this appeal and dismiss it, or vary the sentence that the PCJ imposed within the limits thatthe law prescribes for the offence of which the Respondent pled guilty: Criminal Code ss 822(1), 687(1). [25] Criminal Code s 730(

a) is the

section that allows a sentencing judge to discharge an accused person. It provides as follows: 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [Emphasis added]. [26] This Court has emphasized what it considers to be the “test” that a court will apply when it considers whether to discharge an

accused person. It will consider each branch of the “test.” [27] As for the first branch, it is arguable that a discharge will always be in the accused person’s best interests. A discharge willresult in the accused person not having a conviction recorded on their criminal record. However, it is this Court’s view that the accusedperson’s best interests go beyond that.

This branch might enter into the sentencing court’s consideration if, for example, the accusedperson’s safety or rehabilitation go beyond what can be ordered through discharge conditions. [28] When describing a person who might be entitled to receive a discharge, Arnup JA for the Ontario Court of Appeal said thefollowing in R v Sanchez-Pino (1973), (ON CA), 11 CCC (2d) 53 [Sanchez-Pino] at 59: Normally [the accused person] will be a person of good character, or at least of such character that the entry of a conviction against himmay have significant repercussions.

See also R v Fallofield (1972), (BC CA), 13 CCC (2d) 450, [1973] 6 WWR 472 (BCCA) [Fallofield, cited to CCC]at 454. [29] In the case at bar, the Respondent had a prior criminal record. Although it was dated, as the PCJ found, it involved a domesticassault, so this Court questions whether the Respondent is a “person of good character.” This Court is cognizant of the fact that it cannot“punish a person for his past crimes”: R v Hastings, 1985 ABCA 20 at para 8, 36 Alta LR (2d) 193, 58 AR 108.

The Alberta Court ofAppeal went on to say, however, that “[o]ne can ... validly rely upon a criminal record to rebut any suggestion of good character”: ibid atpara 23.See also R v J(HJ), 1989 CarswellBC 936 at para 8.

In R v Gambler (1996), 1996 ABCA 191 , 184 AR 173 at para 5(CA), Fraser CJA for the court said that an accused person’s criminal record “indicates, in part, the extent to which specific deterrence isrequired for the individual offender.” Watson JA said the following in R v Arcand, 2010 ABCA 363, 40 Alta LR (5th) 199, 499 AR 1[Arcand] at para 136, “[t]he good character premise is that an offender should be able to contend in mitigation that he or she has acted asa law-abiding citizen generally.” When that person has a criminal record, they have not acted as a law-abiding citizen generally.

As aresult, this Court questions whether the Respondent is a person of good character. [30] Even though this Court questions the Respondent’s “good character,” the Respondent, in the PCJ’s mind, falls within thesecond type of individual who Arnup JA described in Sanchez-Pino. The PCJ found that the Respondent was gainfully employed with areputable employer for a lengthy period of time. That employer requires the Respondent to enter and leave the United States as part ofhis employment. She found that a criminal record would hamper those efforts.

When one reviews the transcript of the proceedings beforeher, the Respondent could not respond specifically to the question how this could hamper his efforts to enter the United States. As well,he could not answer the question why, in the face of his prior convictions for domestic assault, careless driving and refusing to provide abreath sample, he was able to enter the United States. This Court also questioned the Respondent how a criminal conviction on theoffence before it might hamper his entry to the United States. The Respondent could not provide a satisfactory response.

Putting thesethoughts aside for a moment, this Court will proceed on the assumption that it would be in the Respondent’s best interests to receive adischarge. [31] The real question before this Court is whether the PCJ correctly considered whether a discharge is “not contrary to the publicinterest” when she gave the Respondent a conditional discharge. She said the following: Secondly, I don’t see that it is against the public interest. The man has employment that supports two families very well and if he loseshis job these families are not going to be comfortable. I can say that with a surety.

Transcript of Proceedings, July 6, 2015, p 53, ll 2-4. [32] In R v Elsharawy (1997), (NL CA), 119 CCC (3d) 565 at 567, 483 APR 297 (Nfld CA) [Elsharawy],Green JA for the court said the following: ... The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of theoffence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminallaw. [33] Thus, general deterrence is a criterion that a sentencing court must consider: Sanchez-Pino at 59.

This criterion must not,however, overwhelm the sentencing judge’s consideration of an appropriate sentence. In Fallofield, Farris CJBC, for the court, said that“the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the dischargeprovisions.” Fallofield at 455. See also R v Boyko, 2003 SKQB 139, [2003] 7 WWR 489, 231 Sask R 57 [Boyko]. [34] As well, when this Court undertakes its analysis, it must be mindful of the notion of proportionality. In Nickel, Watson JA,for the majority, said the following: ...

Proportionality is the fundamental and underlying principle of sentencing, and requires the court to ensure that the penalty fits thecrime. It has two components. The first is the gravity of the offence, which is a measure of "what the offender did wrong": Arcand atpara 57. The second relates to the moral culpability of the offender. As noted in R. v. Laberge, 1995 ABCA 196, 165 A.R. 375 (Alta.C.A.), the court must determine the extent to which the offender actually intended the consequences of his actions. ...

Nickel at para 9. [35] While conducting its analysis, this Court will consider Criminal Code s 43, which provides as follows: 43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupilor child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. This Court recognizes that the Respondent pled guilty to the offence of assault with a weapon, so the PCJ did not have to consider this

section. The cases decided under this section, however, give this Court a sense of the gravity of the offence to which the Respondent pledguilty, his moral culpability, and the “public interest” factors to which Elsharawy referred. [36] The first question that this Court must determine is whether the force that the Respondent applied to AZ was by way ofcorrection, or whether it was done out of anger or frustration. There are 2 limitations to this factor. In Canadian Foundation forChildren, Youth & the Law v.

Canada (Attorney General), 2004 SCC 4 at paras 24-25, [2004] 1 SCR 76 [Canadian Foundation],McLachlin CJC said the following for the majority: First, the person applying the force must have intended it to be for educative or corrective purposes … Accordingly, s. 43 cannotexculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity onlysober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolicdisapproval of his or her behaviour.

The purpose of the force must always be the education or discipline of the child … Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successfulcorrection. … A child may also be incapable of learning from the application of force because of disability or some other contextualfactor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by s. 43.

Canadian Foundation at paras 24-25 [citations excluded].. [37] During the sentencing submissions, the Respondent submitted that he and AZ’s mother had attempted various correctivetactics to try and convince AZ that starting fires was not a behaviour they would tolerate. When all else failed, they decided to use theaction that resulted in the Respondent striking AZ with the belt.

It appears, then, that the application of force was corrective oreducational, in the sense that the Respondent and AZ’s mother felt that this was the only way to “teach” AZ that starting fires waswrong. [38] This Court, however, has a concern with the second limitation that McLachlin CJC outlined in Canadian Foundation. AZ hadbeen diagnosed with attention deficit and hyperactivity disorder and oppositional defiance disorder.

This is not unlike the SaskatchewanCourt of Appeal’s finding in R v Dupperon (1984), (SK CA), 37 Sask R 84 at para 32, [1985] 2 WWR 369 [Dupperon],where the court found that 10 strokes on the bare buttocks of a thirteen-year old boy was a “severe beating, particularly under thecircumstances in which it was inflicted here on an emotionally disturbed boy.” In that case, the accused person’s counsel submitted thatthe victim had “severe behavioural problems.” [39] Criminal Code s 43 also says that the force inflicted on the child has to be reasonable under the circumstances.

In CanadianFoundation, the court said that the following would not be reasonable under the circumstances: • Conduct that causes bodily harm or raises a reasonable prospect of bodily harm: Canadian Foundation at para 30 • Physical correction that harms or degrades a child: Canadian Foundation at para 31 • Corporal punishment using objects, such as rulers or belts in that they are physically and emotionally harmful: CanadianFoundation at para 37 [40] The final words in Criminal Code s 43 state that “the force does not exceed what is reasonable under the circumstances”[emphasis added]. The test is objective.

More importantly, the gravity of the precipitating event is not relevant: Canadian Foundation atpara 40. What that means is that even though AZ’s propensity to start fires is extremely serious, a court is not permitted to looks at theseriousness of AZ’s actions to determine whether the force that the Respondent applied is “reasonable under the circumstances.” It is theforce itself that courts must examine. [41] In Arcand at para 57, to which Watson JA referred in Nickel, Fraser CJA, for the majority, said that a significant factor inassessing the gravity of the offence is the degree of harm done to the victim.

In this case, the PCJ considered this factor, when she said“there was no medical attention that was needed and as far as I know the child has recovered completely from the bruising and slightbreaks in the skin that resulted” Transcript of Proceedings, July 6, 2015, p 49, ll 24-26.

Thus, it appears that she found there was a slightdegree of harm to AZ. [42] Although the injuries to the baby in Nickel were much more serious than those that AZ suffered, this Court is of the view thatthe following comments that Watson JA made are apropos to the situation before this Court: ... [T]he gravity of the respondent's offences should not be diminished by the possibility that the baby may have made a remarkablerecovery. The respondent exposed the child to what must have been agonizing pain, psychological harm, as well as the potential forpermanent injury.

The baby's fortuitous avoidance of some of the more significant consequences should not be taken as a mitigatingfactor. Nickel at para 12. [43] In Dupperon, the Saskatchewan Court of Appeal referred to the 10 strokes with a belt as a “severe beating.” In R v Serack(1994), (AB CJ), 159 AR 392 [Serack] at para 4, Daniel PCJ described a striking with a belt on the bare buttocks ofa 4-year old child that resulted in welt marks as “violent … inappropriate and excessive.” She went on to say the following: It was obviously a very painful event for the child.

The injuries were not life threatening but could have been more serious dependingupon where the uncontrolled belt buckle had landed. The force exceeded what was reasonable in the circumstances and was not properlymotivated or justified. [44] In the case at bar, AZ no doubt suffered pain and discomfort from the strapping that the Respondent inflicted on him, whichwas the reason why the Respondent strapped AZ. As well, there were metal studs on the belt, which actually broke AZ’s skin.

[ 45 ] The PCJ found that the Respondent strapped AZ, “but not to an extent beyond the three blows”: Transcript of Proceedings, July 6, 2015, p 49, ll 23-24. Canadian Foundation says that corporal punishment using a belt is not reasonable in that it is physically and emotionally harmful. This Court agrees.

The strapping went beyond the “minor corrective force of a transitory and trifling nature” which Criminal Code s 43 exempts: Canadian Foundation at para 40 . [ 46 ] Accordingly, this Court finds that the gravity of the offence is more serious than that found by the PCJ. [ 47 ] What is the Respondent’s degree of responsibility? The offence of assault with a weapon is serious and one that society considers particularly harmful. The Crown in this case proceeded by way of

summary conviction procedure, which could result in a custodial sentence of eighteen months. In Arcand , Fraser CJA said the following: The "degree of responsibility of the offender" as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.

However, the reference in s. 718.1 is not simply to the " mens rea degree of responsibility of the offender" at the time of commission of the crime. Parliament evidently intended "degree of responsibility of the offender" to include other factors affecting culpability. These might relate, for example, to the offender's personal circumstances, mental capacity or motive for committing the crime. Where else does the Code provide for an offender's degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2.

Arcand at para 58 . [ 48 ] Criminal Code s 718.2, to which Fraser CJA referred, provides as follows: 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, and, without limiting the generality of the foregoing, ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, ... [ 49 ] This Court has reflected on the Respondent’s sentencing submissions trying to determine his motive for committing this crime. As mentioned a moment ago, he felt a level of helplessness when faced with AZ’s behavioural problems. This was not the first time that AZ had set fire to something in the home. Did the Respondent, however, even think about the harm that could result from his strapping of AZ?

This Court is also concerned with the level of planning and deliberation involved in this crime. The Respondent and AZ’s mother made a special trip to return to the home after they were told what AZ had done. This was not an impulsive act on the Respondent’s part. [ 50 ] Denunciation and deterrence must be at the forefront of a sentencing judge’s mind.

Criminal Code s 718.01 says the following: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 51 ] In R v Pope , 1993 CarswellAlta 1057 at paras 13 , 16 (PC), Hamilton PCJ said the following: A parent is clearly in a position of trust toward a child, and the infliction of a beating resulting in bodily harm to the child is a flagrant breach of that trust.

Aggravating the situation is the fact that a child of tender years would find it not only difficult to escape, but virtually impossible, relying as she does on her parents for her very survival.

Unlike a grown woman, who can at least dial 911 for help, a small child is totally helpless in the face of the rage of a much older, much larger person, the very person to whom she looks for protection. … Only by taking a stance which clearly demonstrates the denunciation of child abuse and the determination to deter those who would engage in it will the Courts fulfil their role in attempting to bring to an end the vicious cycle of such abuse and its tragic implications for our society.

[52] Although in R v Pope (1994), 1994 ABCA 76 , 149 AR 238 at para 3, the Alberta Court of Appeal reduced thecustodial sentence that Hamilton PCJ imposed on the accused person in that case from eighteen months to twelve months, it said that itwas “impressed by the comprehensive and persuasive judgment of the learned trial judge.” [53] In R v Laberge, 1995 ABCA 196 at para 28, 165 AR 375, Fraser CJA said the following: Children are amongst the most vulnerable in our society.

And in our society, parents occupy a position of trust vis-a-vis their children.The existence of that fiduciary relationship lies at the heart of both the parent-child relationship and the family unit. Therefore, where aparent or someone who stands in a trust relationship to a child abuses a child, that will be an aggravating factor in sentencing. [54] The fact that AZ was under eighteen years of age, and that the Respondent was in a position of trust or authority in relation toAZ are aggravating circumstances. The PCJ recognized this.

As well, the fact that the Respondent used a weapon in his assault on AZ isan “important factor” when assessing the Respondent’s moral culpability: Nickel at para 36. [55] Of course, the foregoing factors speak to the offence itself. Watson JA, said that when a court examines the degree ofresponsibility of the offender, it must “have regard to his or her personal circumstances”: Nickel at para 38. This is when the aggravatingor mitigating circumstances of the offender are considered.

As well, it allows the “best interests of the accused” criterion to be consideredas part of the “not contrary to the public interest” criterion. [56] In Boyko at para 11, Barclay J paraphrased what Dubin JA said in R v Meneses (1974), (ON CA), 25 CCC(2d) 115 (Ont CA) [Meneses], when he said that the “need for deterrence can be fulfilled by the facts that an accused was arrested,compelled to hire counsel and appear in Court, and must face the notoriety that comes with an appearance and the fulfilment of judiciallyimposed probation requirements.” Dubin JA went on to say “It is in the public interest for this woman to be given every opportunity tobecome a useful person in the community and earn a livelihood for herself and her family”: Meneses at 117.

He continued by saying thefollowing: The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way whenother considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge ofspeedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit suchan offence.

A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receiveeither an absolute or conditional discharge. Ibid [57] What are the “personal circumstances” that the PCJ considered? The Respondent cooperated with the police and confirmedhis actions. As well, he pled guilty to the charge. He had provided and continues to provide financial and other support to the mother andthe children, including AZ.

He has effected substantial changes to his parenting style, and has abandoned the use of corporal punishment.He is gainfully employed and financially supports both his current and former families. [58] What this Court takes from the PCJ’s analysis is that she saw the Respondent as having taken positive steps to deal with thebehaviour that resulted in his having to face the charge of which he pled guilty. As well, any custodial sentence or even a sentence thatwould result in his having a criminal record might punish his family, including AZ, because of the Respondent’s employmentrequirements.

Sentencing is a delicate balancing of disparate interests, and the PCJ undertook this delicate balancing. [59] Those factors, however, apply to many individuals who are convicted of criminal offences and were previously supportingtheir families. What is equally important are societal values, especially when dealing with an assault with a weapon on a vulnerablechild.

Daniel PCJ said the following in Serack at para 32: For the deterrence of the general public, the message must be clear: do not physically abuse your children; it is not acceptable and will betreated seriously by the Courts. [60] As mentioned earlier, the Respondent has a criminal record, albeit, the record is somewhat dated. It involves, however,domestic violence, and this Court cannot ignore that fact. [61] This Court recognizes that on appeal, this Court would give the PCJ deference to her decision on sentencing, given thedelicate balancing that trial judges must undertake.

In this case, however, there were serious aspects of the offence, which are notoutweighed by Respondent’s “personal circumstances.” Accordingly, this Court will consider afresh the fitness of the sentence sheimposed. [62] It might be worthwhile to look at cases that share similarities with the case at bar, some of which pre-date CanadianFoundation, some of which are more recent. [63] In Dupperon (1984), the Saskatchewan Court of Appeal substituted a verdict of assault for a conviction of assault causingbodily harm.

It upheld the sentence that the trial judge imposed for the substituted offence, which was a fine of $400, and probation foreighteen months. [64] In Serack (1984), the accused person had previously been convicted of spousal assault. The family was supportive and he wasthe sole support for the family. He also undertook to take counselling. Daniel PCJ sentenced the accused person to 60 days incarceration,which would be served intermittently.

Concurrently, he was subject to a probation order, for which he would be bound for 2 years. [65] In R v Lawrence, 2009 CarswellOnt 5076, [2009] OJ No 3572 (Sup Ct Just), the accused person struck his thirteen-year olddaughter with a belt. He pled guilty to assault with a weapon. The accused person’s employer sang his praises, he had no criminal record,and he had a good pre-sentence report. The family, including the victim, supported him. The trial judge would not grant a conditionaldischarge because the accused person used a belt. He was given a suspended sentence and was placed on probation for 9 months. Hill J

dismissed the appeal, as he found “[t]he objectives of deterrence and denunciation would not be adequately served by the imposition of a discharge.” [ 66 ] In R v Z(LE) , 2010 ABPC 397 , Stevens-Guille PCJ convicted the accused persons of assault when the father held the legs of his fourteen-year old daughter over her head to expose her buttocks, while the mother strapped the daughter with a belt at least 3 times. The parents showed no remorse. His Honour found that the use of the belt was an aggravating factor.

He sentenced the accused persons to time spent in jail (3 days). [ 67 ] In R v Eggett , 2010 ONCJ 513 , the accused person pled guilty to the offence of assault with a weapon. The accused person struck her 7-year old child with a belt 5 times, that left a welt on the child’s leg. She had no prior convictions. This was the result of the child setting fires in their house. Hill J found that a conditional sentence was available to the accused person.

Accordingly, he imposed a sentence of thirty days which she was to serve in the community, along with eighteen months’ probation. [ 68 ] The PCJ said that this was an “exceptional case.” Why was it so exceptional? Was it because of the financial support that the Respondent provides to his families? Was it because of the positive steps the Respondent had taken to address the issues that resulted in his being before the court in the first place?

This may be the case, but the Alberta Court of Appeal has said that denunciation and deterrence are the primary factors that trial courts must consider in these types of cases. This was a serious assault using a weapon. We cannot be blind to the societal values we place on protecting vulnerable children. [ 69 ] Accordingly, this Court allows the Crown’s appeal and varies the sentence the PCJ imposed.

This Court suspends the passing of sentence and imposes a 12-month period of probation during which time the Respondent will: 1. keep the peace and be of good behaviour; 2. appear before the court when required to do so by the court; 3. immediately advise the designated probation officer of the existence of this order; 4. advise his designated probation officer of his residential address and telephone number and changes to his name, address or employment; 5. if he agrees, and subject to a programme director’s acceptance of him, participate actively in a counselling programme that his designated probation officer recommends and that is approved by the province, including, if accepted, anger management, family violence, parenting, and life skills; 6. sign a release or waiver of information for the designated probation officer, which will allow them access to necessary information concerning any such counselling programmes; and 7. provide written proof that he has attended and completed any such counselling programmes. [ 70 ] Under Criminal Code s 732.2(3), he has 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 him 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 he is bound by the probation order. A hearing will be held to deal with the request for a change. The Respondent must attend that hearing in person.

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

He will be required to comply with the order, as changed. [ 71 ] Pursuant to Criminal Code s 732.2(5), if he is convicted of an offence during his term of probation, including the offence of violating the probation order, he may be brought back to court and the court can add to the conditions this Court has imposed or extend the period of probation. [ 72 ] Under Criminal Code s 733.1, if he wilfully fails or refuses to comply with the conditions of probation, such failure or refusal to comply is a separate offence of which he may also be convicted and sentenced. [ 73 ] The Clerk of the Court will provide him with a copy of the probation order. [ 74 ] Pursuant to Criminal Code s 110, this Court exercises its discretion to order that he not possess a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or anything that can be converted into an explosive substance, for a period of 10 years from the date of this sentence.

If he has any firearms or those other items in his possession or at his place of residence he must surrender them to the designated Probation Officer. [ 75 ] The Respondent must surrender to his designated Probation Officer any authorization license or registration certificate or other document enabling him to acquire or possess a firearm or those other items. [ 76 ] As well, assault with a weapon is a primary designated offence under Criminal Code s 487.04.

Accordingly, this Court orders that he submit to the authorities for the taking one or more of his bodily substances required for the purpose of forensic DNA analysis, if he has not already done so. [ 77 ] The PCJ required the Respondent to pay victim fine surcharge. This Court does not change that portion of her order. Heard on the 1 st day of September, 2016. Dated at the City of Calgary, Alberta this 7th day of November, 2016.

K. D. Yamauchi J.C.Q.B.A. Appearances: Deanna Dahlseide Haase Alberta Justice for the Appellant Roy D Shellnutt for the Respondent