R v Dunn, 2023 ABKB 192

Court of King’s Bench of Alberta Citation: R v Dunn, 2023 ABKB 192 Date: 20230405 Docket: 190634949S1 Registry: Calgary Between: His Majesty the King Crown - and - Alexander Dunn Accused Decision of the Honourable Justice N.F. Dilts on the Appeal of the Sentencing Decision of Judge Christopher on June 29, 2021 _______________________________________________________ I. Overview [ 1 ] The Crown appeals the non-custodial sentence imposed on Calgary Police officer Alexander Dunn following his conviction for assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code of Canada . It argues that the 30-day conditional sentence he received is demonstrably unfit and grounded on material errors in law. The Crown sought a term of imprisonment of nine months. It renewed that position on appeal. II. Circumstances of the Offence [ 2 ] The events leading to conviction and sentence occurred on December 13, 2017. [ 3 ] Constable Dunn was an on-duty police officer when he assisted at a traffic stop and encountered Ms. Kafi, a passenger in the vehicle. Following roadside inquiries, Constable Dunn arrested Ms.

Kafi on outstanding warrants, for breaching her recognizance, and for obstructing justice. He handcuffed Ms. Kafi and drove her to the Calgary Police Service Arrest Processing

Section where he began the process of booking her. Part of the booking process required Ms. Kafi to be photographed. Constable Dunn directed Ms. Kafi to where she was to stand to be photographed. At all times, Ms. Kafi had her hands handcuffed behind her back. [ 4 ] Ms. Kafi was wearing a headscarf that was obstructing part of her forehead. Constable Dunn reached his hand up to Ms. Kafi’s head to remove her headscarf. Ms. Kafi recoiled back. Constable Dunn then reached to Ms. Kafi’s head a second time. When she recoiled a second time, Constable Dunn did what was described at trial as a dynamic takedown, quickly and forcibly throwing Ms. Kafi

to the ground. As Ms. Kafi’s hands were handcuffed behind her back, she landed on her face, briefly losing consciousness, and sustaining bruising and injuries to the inside of her mouth and lips. In addition to those injuries, Ms. Kafi experienced residual headaches. The incident impacted her emotionally and eroded her sense of trust, particularly in the police. The encounter was captured on video that, according to counsel’s submissions on sentencing, has been viewed over 11 million times across Canada and the United States. [ 5 ] Ms.

Kafi is a young Black woman; at the time of the incident, she was 26 years old, 5’4” and 120 pounds. Constable Dunn is a white male; at the time of the incident, he was 31 years old, 5’10” and 190 pounds. Considering the evidence of the witnesses and the size, age, gender and physical capabilities of Constable Dunn relative to Ms. Kafi, the trial judge concluded that Constable Dunn used excessive force in throwing Ms. Kafi to the ground. In her words, the judo-style throw Constable Dunn used on Ms. Kafi was “unexpected, swift, and disproportionate to the circumstances”.

She convicted him of assault causing bodily harm. III. Sentencing Decision [ 6 ] On June 29, 2021, Constable Dunn was sentenced to a 30-day conditional sentence, 15 days of which were served under house arrest and 15 days of which were served under curfew. The trial judge declined to order a period of probation and, consequently, Constable Dunn was not required to perform any hours of community service.

The sentence has been fully served. [ 7 ] In her sentencing decision, the trial judge properly instructed herself on the purposes and principles of sentencing as set out in sections 718 , 718.1 and 718.2 of the Criminal Code . She addressed the broad range of sentencing options available to her both because the Crown proceeded summarily on the charge and in light of the case law presented by Crown and Defence. She observed that the wide range of available sentences spoke to the difficulty courts have in determining a fit and proper sentence where a peace officer has breached the trust afforded them by their role.

She also noted that Ms. Kafi was a vulnerable person as she was handcuffed and in the control of the police at the time of the offence. The trial judge properly identified that in the circumstances, denunciation and deterrence were the primary sentencing objectives. [ 8 ] The trial judge examined the specific circumstances of the offender, noting that Constable Dunn had worked for the Calgary Police Service for 7.5 years, had a history of volunteerism within the community, and had the support of his family and close friends.

In letters of support, those family and friends described Constable Dunn as caring, helpful, and reliable. [ 9 ] The trial judge observed that from the Crown’s cases, sentences for police officers convicted of assault ranged from a 30-day conditional sentence ( R v Pickering , 2015 ONSC 6695 ) to a high of 9 months imprisonment ( R v Theriault , 2020 ONSC 6768 ) although she rejected the latter as an outlier. [1] The cases presented by the Defence set out a sentencing range from a suspended sentence plus probation to 90 days incarceration served intermittently.

All of the cases to which the trial judge was referred varied in respect of the nature of the assault, whether it was an isolated incident or whether there was continuing or gratuitous violence, whether the assault was informed by cruelty, malice, or racism, and the severity of the injuries suffered by the victim. Determining that there was no reason to depart from the sentencing range presented by the Crown, the trial judge relied on Pickering as the closest analog and imposed a 30-day conditional sentence with “minimal” conditions. IV.

Standard of Review [ 10 ] The standard of review of a sentencing decision was recently summarized by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 at para 26 : As this Court confirmed in Lacasse [ R v Lacasse , 2015 SCC 64 ], an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence.

If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [ 11 ] Appellate review is premised on deference, recognizing that a trial judge is uniquely positioned and experienced to determine a fit and appropriate sentence.

Having heard the evidence, observed the witnesses, and assessed the magnitude of the criminal act, the trial judge is allowed broad authority to identify the relevant factors in sentencing and to determine a fit and appropriate sentence: R v Suter , 2018 SCC 34 at para 161 . [ 12 ] If the appellate court determines that a sentence is demonstrably unfit, or that the sentencing judge made an error in principle that had an impact on the sentence, the appellate court is to perform its own sentencing analysis to determine a fit sentence.

In doing so, the appellate court is to defer to the sentencing judge’s findings of fact and the aggravating and mitigating factors found, but only to the extent that they are not affected by an error in principle: Friesen at paras 27-28 . V. Grounds of Appeal [ 13 ] The Crown raises three issues on appeal. It asserts that the trial judge erred:

a) in assessing the gravity of the offence by failing to factor race into her sentencing decision;

b) by wrongly characterizing and weighing the offenders’ lack of criminal record and the collateral consequences of conviction as

mitigating factors in sentencing; and

c) by imposing a demonstrably unfit sentence. VI. Analysis 1. The Gravity of the Offence [14] The Crown argues that the trial judge erred in failing to factor race into her sentencing decision because she was not provideda community impact statement speaking to the impact of the offence on racialized communities. The Crown argues that even where, ashere, the offence was found to be not racially motivated, the trial judge should have factored the complex racial dynamics that existbetween police officers and members of racialized communities when designing a fit and appropriate sentence.

The Crown argues thather failure to do so resulted in a misapprehension of the gravity of the offence. The Crown relies in part on the discussion in R v Le, 2019SCC 34 regarding race relations between white police officers and persons of colour. [15] The Defence says the Crown misplaces its reliance on Le in which the Supreme Court explored race-based relations with thepolice in the context of the law of arbitrary detention.

I will note in response to this point that courts across this country broadly referenceLe for its commentary on race-based discrimination in police practices in Canada: see Theriault (ONCA) and R v Natomagan, 2022ABCA 48 as recent examples. [16] In response to the Crown’s submission that the trial judge erred in failing to factor race into her sentencing decision, theDefence says that the Crown expressly acknowledged in its sentencing submissions that the trial judge did not find the offence to beracially motivated.

The Defence says the Crown cannot now seek a review of the trial judge’s decision on the basis that she did notassess the gravity of the offence with reference to the racial tensions between white police officers and racialized communities. Itmaintains that the Crown did not argue at sentencing that there should be a heightened degree of denunciation because of race, and itshould not be permitted do so now. [17] A trial judge in sentencing an offender must ensure that the sentence imposed reflects and upholds the societal values of thecommunity in which the offence occurred.

The language chosen by Bychok, J in R v Bracken, 2016 NUCJ 3 , 2016 NUCJ 03 atpara 48 bears repeating: The duty of this court is to interpret and apply the law with a sensitivity to, and understanding of, the society it serves. [18] That duty on sentencing an offender includes the obligation to consider the social context of the case and whether the offencewas racially motivated, or whether the offence negatively impacted the community. The existence of anti-Black racism in Canada isbeyond dispute and is properly the subject of judicial notice: Theriault (ONCA) at para 143.

It is uncontroverted that where race is afactor in the commission of an offence, the court must denounce the offender’s reliance on offensive and unwarranted negativestereotypes based on race; it may also be appropriate that the sentence reflect a heightened degree of denunciation. [19] Beyond judicial notice, in discharging the court’s obligation to consider the social context of a case, a trial judge maydischarge their obligation by considering insights offered through community impact statements.

They may also do so by referring tojudicial commentary on race relations between police agencies and racialized communities, and they may do so by reference to reliablereports and sources (see R v Doering, 2020 ONSC 5618 as an example). [20] In this case, the trial judge concluded that there was no evidence that race was a factor in Constable Dunn’s assault of Ms.Kafi. Consequently, the Crown did not ask the trial judge to consider race as an aggravating factor in sentencing.

Appropriately, the trialjudge acknowledged the strained relations between the police and members of racialized communities; in doing so, she situated theoffence within the community, acknowledging Ms. Kafi’s race, the neighborhood in which the car was traveling, and the discriminatorypractice of police street checks. She expressly noted that it would be an error to disregard the history of race and policing in Canada.

Inmy view, in doing so, the trial judge properly situated the sentencing of Constable Dunn within the social context of the offence. [21] I am satisfied that the trial judge committed no error in how she addressed the racial context in which the offence took place,nor in her specific conclusions regarding Ms. Kafi’s interaction with Constable Dunn. While the Crown in its submissions before meargued that the trial judge erred in requiring community impact statements before being able to assess the impact of the crime onracialized communities, that is, with respect, a misreading of her decision.

The trial judge did not fail to consider the impact of theoffence on racialized communities. Rather, she declined the opportunity to enhance the need for denunciation in sentencing having foundthat race was not a factor in the assault. In doing so, she committed no error in principle. [22] Given my conclusion that the trial judge did not misapprehend the gravity of the offence, I need not address the Defenceargument that the Crown is precluded from raising the issue of race on appeal. 2.

Mitigating Factors [23] The Crown argues that the trial judge erred in principle by wrongly identifying certain factors as mitigating. Particularly, theCrown points to the trial judge’s mischaracterization of Constable Dunn’s lack of a prior criminal record as mitigating, and her treatmentof Constable Dunn’s prior good character as mitigating.

On this latter point, the premise of the Crown’s position is that good character isthe very currency on which police officers trade and which invites the public’s trust. [24] Addressing the Crown’s first concern, I agree that the trial judge erred when she mischaracterized Constable Dunn’s lack of acriminal record as a mitigating factor; however, I am satisfied on reading her reasons as a whole that her error did not have a materialimpact on the sentence imposed.

[25] Regarding the Crown’s argument that the trial judge overemphasized Constable Dunn’s prior good character in sentencing, Iam satisfied that the trial judge did not make a material error in her consideration of Constable Dunn’s good character.

While sheincluded Constable Dunn’s good character in a list of other mitigating factors (including his community involvement, family support andexpression of remorse), the trial judge recognized throughout her reasons that Constable Dunn’s breach of the duty he owed to the publicas a police officer was an aggravating factor that was to be denounced and deterred in sentencing. She noted that police officers must beheld accountable when they breach their social contract with the public and that police assault is an egregious breach of the public’strust.

In my view, despite having listed Constable Dunn’s good character as a mitigating factor, the trial judge committed no materialerror in her analysis of the aggravating and mitigating circumstances in sentencing. [26] The Crown also argues that the trial judge erred in how she addressed the collateral consequences suffered by ConstableDunn as a result of conviction, including the public notoriety of the incident, and the resulting impact on his career. [27] The Supreme Court of Canada in R v Pham, 2013 SCC 100 at paras 11-12 and Suter at paras 45-59 discussed how collateralconsequences may bear in the sentencing process.

Indirect consequences as a result of conviction, including media attention, negativepublic response, job loss and stigma, cannot be isolated from the sentencing process when they bear on the offender’s personalcircumstances. Those collateral consequences are factors a trial judge may consider, not as mitigating factors but as part of the court’sexercise of placing the sentence in the lived context of the offender.

They are relevant to the offender’s personal circumstances and assuch to the court’s obligation to ensure the sentencing process is both individualized and honours the parity principle: Suter at para 48. [28] In my view, the trial judge committed no error in considering the collateral consequences experienced by Constable Dunn,including the likely loss of his job and the impact of conviction on his opportunities within the community. She expressly stated thatthose consequences were not mitigating factors in determining a fit and appropriate sentence.

To the extent they were discussed, I amsatisfied that those collateral consequences highlighted the personal circumstances of the offender. 3. Demonstrably Unfit Sentence [29] The Crown argues that the sentence imposed on Constable Dunn is demonstrably unfit. It argues that where deterrence anddenunciation are the primary objectives in sentencing, imprisonment is necessary in all but the exceptional case.

It directs this Court toLacasse at para 6; R v Parranto, 2021 SCC 46 at para 51, and R v Brady, 1998 ABCA 7 at para 32. [30] The Crown argues that the trial judge’s error in reaching an unfit sentence was two-fold. First, it argues that the trial judgerelied on inappropriate comparators in determining the appropriate sentence for a police officer convicted of assault. It maintains that arange of sentence that allows for a conditional sentence, discharge, or probation order for a police officer convicted of assault is unfit.

Itargues that in determining a fit and appropriate sentence, taking into account the conduct of the offender and the seriousness of the injuryto the victim, the court should be guided by sentences imposed for offenders convicted of aggravated assault and by reference tosentences imposed on those offenders who violate a position of trust, including sentences for intimate partner violence. [31] Second, the Crown argues that the trial judge undervalued the breach of trust that follows when a police officer offends.

Insentencing Constable Dunn to a conditional sentence, the Crown argues that the trial judge perpetuated what it says is a pattern inCanadian jurisprudence in which police officers are treated as a distinct class of offenders, receiving lesser sentences than those imposedon non-police officers for similar conduct. [32] The Defence maintains that the trial judge gave considered, thoughtful reasons, grounded on the evidence and the recordbefore her.

It argues that a conditional sentence is a meaningful sentence capable of achieving the objectives of denunciation anddeterrence: R v Proulx, 2000 SCC 5 at para 22. [33] As observed by Laskin J.A. in R v Rezaie, at p 720, cited in both Suter and R v McKnight, 2023 ABCA 72at para 31, the Supreme Court has used a variety of phrases to describe a sentence that is outside the acceptable range.

An appellate courtcannot interfere unless the sentence is “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessiveor inadequate”, or represents a “substantial and marked departure.” [34] The test for a demonstrably unfit sentence is a high standard, only met when the sentence is clearly unreasonable: McKnightat para 12. A sentence is not demonstrably unfit merely because the appeal court might have imposed a different sentence: ...demonstrable unfitness is not an unchecked subjective inquiry.

In other words, an appellate court cannot simply assert that a sentence isdemonstrably unfit without meaningful explanation. Rather, it must demonstrate that unfitness with reference to the Criminal Code’ssentencing principles, including proportionality (s. 718.1), the sentencing objectives (s. 718), individualization (s. 718.2(a)) and parity (s.718.2(b)). Suter at para 166 [35] The question before me is whether the 30-day conditional sentence imposed on Constable Dunn, 15 days served under housearrest and 15 days served under curfew, was demonstrably unfit.

Being mindful of the significant deference I owe to the trial judge, Inonetheless find that the trial judge erred in concluding that the conditional sentence imposed in this case satisfied the fundamentalpurposes and principles of sentencing.

Particularly, I am satisfied that the 30-day conditional sentence imposed on Constable Dunn failedto adequately address the court’s need to denounce Constable Dunn’s conduct and to deter others in his position from committing asimilar offence. [36] Under s. 718.04 of the Criminal Code, Parliament has directed that when sentencing an offender for an offence that constitutesan abuse against a vulnerable person, the court shall give primary consideration to the objectives of denunciation and deterrence.

TheSupreme Court in Friesen at para 102, in the context of s. 718.01 of the Criminal Code, observed that the phrase “primaryconsideration” prescribes a relative ordering of sentencing objectives that is absent from the general list of sentencing objectives in s.718(

a) to (f).

[37] When denunciation and deterrence are paramount, the focus of sentencing is to be more on the gravity of the conduct than thecircumstances of the offender: R v Letkeman, 2021 MBCA 68 at para 51.

As observed by Renke, J in R v Pettitt, 2021 ABQB 773 atpara 30, the higher the degree of responsibility associated with the commission of an offence, the greater the need for denunciation anddeterrence. [38] The concept of denunciation was explained in R v M (CA), (SCC) at para 81, recently cited in McKnight atpara 34: The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particularoffender’s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’sconduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [39] Denunciation and deterrence were therefore the starting points in sentencing Constable Dunn.

In addition, in determining a fitand appropriate sentence, the trial judge was required to consider s. 718.2(a)(iii) of the Criminal Code which requires that a sentence beincreased where the offender abused a position of trust or authority in relation to the victim. [40] The law is clear that although a conditional sentence is more lenient than an equivalent term of incarceration, a conditionalsentence with stringent conditions can significantly denounce and deter: Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goalsmight be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence,even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, theduration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to beserved.

Proulx at para 114 [41] In Proulx at paras 103-105, the Supreme Court concluded that denunciation can be achieved where a conditional sentence isconstructed either with onerous and punitive conditions (including house arrest) or a lengthy term. It fairly concluded that living in thecommunity under strict conditions and with the notoriety of conviction can provide ample denunciation in many cases.

One of theconclusions expressed in Proulx is that a conditional sentence will provide significant deterrence if sufficiently punitive conditions areimposed, and the public is made aware of the nature and severity of the conditional sentence: Proulx at para 107. However, punitiveconditions should be the norm, not the exception: Proulx at para 117. [42] In the present case, the trial judge imposed a 30-day conditional sentence with minimal conditions and palpable lenience.

Indoing so, she failed to craft a sentence that reflected the primary considerations of denunciation and deterrence and failed to account forthe consideration required under s. 718.2(a)(iii) of the Criminal Code. Constable Dunn’s conviction was left without meaningfulconsequence and as a result achieved neither denunciation nor deterrence. [43] Moreover, the trial judge failed to address other sentencing objectives by not adequately addressing the rehabilitation of theoffender or the needs of the community in which the offence occurred.

The sentencing judge declined to order a period of probation,having satisfied herself that Constable Dunn had the maturity to access mental health resources. She also made no order for communityservice given the duration of the conditional sentence order and Constable Dunn’s history of community contribution. Whether asentence achieves the sentencing goals requires consideration of the gravity of offence and the degree of responsibility of offender.However, it also requires thoughtful consideration of the conditions imposed and the community in which the sentence is to be served.

Inthat respect, it invites consideration of the needs and current condition of and in the particular community where the offence occurred:M(CA) at para 92. Although I acknowledge that the sentence was imposed during the pandemic and therefore with fewer opportunitiesfor public service, I am not satisfied that the trial judge adequately considered these sentencing factors. [44] Finally, in determining the sentence for Constable Dunn, the trial judge relied on Pickering as the closest analog. Herrationale for doing so is understandable considering some similarities in the circumstances of the offending behaviour.

Mr. Pickeringwas a prison security officer escorting an inmate from court. When the inmate appeared to resist being put into his cell, Pickeringgrabbed the inmate, pushed him into the cell and propelled him the length of the cell sending him face first into the concrete wall. Mr.Pickering was sentenced to a 30-day conditional sentence served entirely under house arrest: R v Pickering, 2014 ONCJ 594 at para 66.Mr. Pickering appealed that sentence, seeking a conditional discharge.

The appellate court found no error in the trial judge’s reasoningthat a conditional discharge was not a fit sentence in the circumstances of the case and upheld the conditional sentence of 30-days housearrest. [45] While I do not share the Crown’s concern that any case in which a conditional sentence is ordered in response to a policeofficer’s conviction for assault is an inappropriate comparator, I am concerned that Pickering no longer reflects society’s values or itsgoals of sentencing in response to a police officer’s use of excessive force.

The offence in Pickering occurred in 2013, some 4.5 yearsbefore the present case. While that may not be a significant period of time in the context of the development of jurisprudence, it is so inthe context of modern social change and heightened public awareness, particularly as it relates to police use of force against vulnerablepersons. [46] Constable Dunn has paid a significant price for his mistake.

The trial judge concluded that the aggravating factors that wereidentified in many of the other cases presented at the sentencing hearing, like gratuitous violence, malice, or cruelty, were not present inthis case. However, Constable Dunn held a position of trust over a vulnerable person not only who was much smaller than he but whowas a Black woman in handcuffs, resisting physical contact by a man. She was under his control and subject to his authority.

While anisolated incident, Constable Dunn’s conduct is serious enough to attract a penalty of incarceration. “The credibility of the criminal justicesystem in the eyes of the public depends on the fitness of sentences imposed on offenders”: Lacasse at para 3. [47] In the circumstances of this case, I am satisfied that a fit and appropriate sentence requires a period of incarceration. Constable

Dunn is therefore sentenced to 30 days incarceration to be served intermittently, followed by 6 months probation and 75 hours ofcommunity service. VII.

Stay of Execution of Sentence [48] Constable Dunn has been subject to the court’s processes since his trial in October 2020 with sentence imposed in June 2021.He has served that sentence fully and without breach. [49] The law surrounding the stay of execution of a sentence after a successful Crown appeal was succinctly summarized in R vJED, 2018 MBCA 123 at para 143: The Supreme Court of Canada has accepted that the execution of a sentence after a successful Crown appeal may be permanently stayedif it is in the interests of justice to do so (see Proulx at para 132; R v RAR, 2000 SCC 8 at para 35; RNS at para 24; R v Anderson, 2014SCC 41 at para 65; and R v Suter, 2018 SCC 34 at para 103).

The persuasive burden is on the offender to demonstrate why an otherwisefit sentence should not be enforced (see R v F (GC) (2004), (ON CA), 188 CCC (3d) 68 at paras 34-35 (OntCA); Veysey at paras 31-33; R v Smith, 2008 SKCA 20 at para 82; R v Sinclair, 2012 MBCA 24 at para 21; and Taylor at paras 63, 81-82, 119). [50] The non-exhaustive list of factors to be considered in deciding whether to impose a stay of execution include the seriousnessof the offence for which Constable Dunn was convicted, the time since Constable Dunn completed his imposed sentence, the overallperiod of time that has elapsed, whether delay can be attributed to either party, and the impact of now incarcerating Constable Dunn:Letkeman at para 91.

In the present circumstances, it might also require consideration of the impact of the pandemic on court operationsand the prosecution of this case through to this appeal. [51] Given the Crown’s success on this sentence appeal, I invite counsel to provide brief written submissions to me within 30 daysof this decision addressing whether a stay of execution should be ordered.

Should either counsel wish to make submissions in person,they can write to me with that request. [52] In the interim and pending further decision, the sentence of 30 days incarceration plus 6 months probation and 75 hours ofcommunity service is stayed. Heard on the 10th day of February, 2023. Dated at the City of Calgary, Alberta this 5th day of April, 2023. N. F. Dilts J.C.K.B.A. Appearances: Michael Dunn for the Crown Alain Hepner, K.C. for the Defence