R v AM, 2023 ABKB 563

Court of King’s Bench of Alberta Citation: R v AM, 2023 ABKB 563 Date: 20231010 Docket: 210000592Q1 Registry: Calgary Between: His Majesty the King Crown - and - AM Offender Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1) . No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act .

NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision for Sentencing of the Honourable Justice A. Loparco _______________________________________________________ [ 1 ] On September 27, 2023, I provided my Reasons for Sentence orally with Written Reasons to follow. These are those Reasons.

I. Introduction [ 2 ] On the evening of December 31, 2020, what began as a routine traffic stop ended in tragedy. Sgt. Andrew Harnett of the Calgary Police Service ("CPS") lost his life while carrying out his duties as an officer. The facts of this case have been detailed extensively in my earlier reasons and will only be summarized below. [ 3 ] Briefly, Sgt. Harnett pulled over a vehicle that the Offender was driving because it did not have operating headlights. The Offender, AM, was just shy of his 18th birthday. The stop took longer than usual as the internal police computer system was not operating properly.

When Sgt. Harnett eventually returned to the vehicle to give AM a ticket, the Offender unexpectedly sped off, with Sgt. Harnett hanging on to the front driver's side door. [ 4 ] The vehicle travelled through a parking lot where AM had initially been pulled over. It then temporarily became lodged on top of a snow-covered berm before speeding off down Falconridge Drive with Sgt. Harnett still attached to the vehicle. During this flight, AM took active steps geared towards ejecting Sgt. Harnett from the vehicle. Sgt.

Harnett fell onto the road where he was fatally struck by an oncoming car. [ 5 ] AM was charged with first degree murder. He pleaded not guilty to this offence, but guilty to the lesser and included offence of manslaughter. [ 6 ] Following trial, I convicted AM of manslaughter: R v AM , 2022 ABKB 754 (the "Trial Reasons"). Subsequently, I held that, despite being a young person at the time of the offence, AM would be sentenced as an adult : R v AM , 2023 ABKB 312 (the "Adult Application Reasons"). [ 7 ] AM now appears before me for sentencing.

Relevant portions of the circumstances of the offence, along with the Victim Impact Statements and the circumstances of the Offender, are discussed first, followed by the position on the range of sentences available and the aggravating and mitigating circumstances that apply. II. Circumstances of the Offence [ 8 ] Although the circumstances surrounding the initial flight were chaotic, AM was the author of them. The decision to engage in flight was deliberate.

As stated in my Trial Reasons, the likely reason for the flight was that, as the traffic stop dragged on, AM became increasing worried that something would be discovered which would increase his or his passengers' potential legal jeopardy to a level that was much more serious than a simple traffic ticket. When Cst. Desroches requested that the front seat passenger, Mr. Abdulrahman, open the car door, the risk of this increased jeopardy crystalized in AM's mind, and he drove off. [ 9 ] The decision to flee was not spontaneous.

I inferred that AM formulated his plan to flee in advance, notwithstanding the fact that AM was aware that the police already knew his identity. Footage from the body worn cameras (“BWC”) show that AM smoothly placed the car into gear and drove off while the officers were furthest from their cruisers, thus improving his chance of escape: Trial Reasons: at para 207. [ 10 ] While AM did not initially know that Sgt. Harnett was clinging to the vehicle, he quickly became aware of the situation. [ 11 ] The entire episode from the point when the vehicle took off to where Sgt.

Harnett fell from the vehicle lasted only 36 seconds. During those 36 seconds, the vehicle travelled a total of 427 meters. [ 12 ] At the outset, Sgt. Harnett made several demands of AM to "stop the car", which AM ignored. A physical struggle between Sgt. Harnett and the Offender ensued largely while the vehicle was temporarily lodged on the berm, with both parties exchanging blows. As the car regained traction and sped off down Falconridge Drive, Sgt. Harnett made further demands that AM stop the car. Again, these demands were ignored. Instead, AM sped up.

I concluded that the vehicle was travelling somewhere between 80 - 90 kph at the time Sgt. Harnett fell onto the roadway: Trial Reasons at para 149. [ 13 ] During the flight down Falconridge Drive, I found that AM engaged in a number of distinct, purposeful maneuvers aimed at dislodging Sgt. Harnett from the vehicle. Specifically: (

i) he used his hand to grab the arm that Sgt. Harnett was using to hold onto the vehicle; (ii) on two separate occasions, he used his hand to push the vehicle door open, causing Sgt. Harnett to swing away from the body of the vehicle; (iii) following these two hand pushes, AM used his leg, again to push the door open and away from the vehicle, and finally, (iv) he performed a "jerking" or "swerving" maneuver of the steering wheel. It is after this last maneuver that Sgt. Harnett fell from the vehicle and rolled into oncoming traffic.

His cause of death was due to significant internal injuries listed as blunt force trauma. [ 14 ] Following Sgt. Harnett's expulsion from the vehicle, AM drove off and the vehicle was subsequently left abandoned. [ 15 ] In conclusion, I found that in the circumstances, AM meant to cause Sgt. Harnett serious bodily harm: Trial Reasons at para 235. What AM intended informs my assessment of his moral culpability, as discussed further, below. III.

Victim Impact Statements [ 16 ] Several Victim Impact Statements were delivered in open court, which I will attempt to summarize as they play an important role in my assessment of a fit sentence. [ 17 ] Sgt. Harnett was only 37 years old when he was killed. He had been a member of the CPS for 12 years, having been promoted to Sergeant in 2019. Prior to joining the CPS, Sgt. Harnett served as a military police officer. Days before his death, Sgt. Harnett and his

wife had just informed their families that they were expecting their first child. As described in my Trial Reasons, friends and family, members of the CPS, and the public at large all mourned the tragic loss of a decorated and exemplary officer: at para 3. [ 18 ] Sgt. Harnett's spouse, Chelsea Goedhart, described how Sgt. Harnett's death shattered her life. At the time of his death, Chelsea was 15 weeks pregnant.

Chelsea described the pain she faced in navigating her pregnancy alone during an already isolating pandemic, preparing for the baby's arrival alone, and ultimately, delivering the baby alone in a hospital, without Sgt. Harnett by her side.

She details the "overwhelming and consuming grief" that overshadowed every aspect of her life at a time when she was "supposed to be basking in the joy of being a new parent." She expressed the "soul crushing and disorientating waves of grief" she endured while trying to come to terms with the reality that her partner was gone and she was left to care for her newborn baby alone. Being a grieving single parent prevented her from being the mom she had always dreamed she would be. [ 19 ] Chelsea described life without Sgt. Harnett as mentally and physically exhausting.

In particular, she has had to spend, and will have to continue to spend, a significant amount of time and energy in counselling to try and process her loss. Finally, Chelsea emphasized that the most devastating impact of Sgt. Harnett's death will be borne by their son. Their son will never have the opportunity to know the "incredibly kind, generous, funny and loving person his dad was". She laments at the missed opportunities to go on family vacations or take a real family picture. [ 20 ] Sgt.

Harnett's mother, Valerie Harnett, described an animated and joyful conversation she had with her son before his shift on New Year's Eve. Valerie had just been informed a week prior, on Christmas Day, that her son was going to become a dad for the first time. She describes her excitement in seeing her family grow and saw the child's birth as an opportunity for her family to "turn a corner" after the loss of her husband to cancer. She proceeded to recount the shock, disbelief, and tears she experienced just a few hours later when she received the call that her son had been killed.

She remarks how every aspect of her family's life has been affected, and how she is not the same person she once was. She has trouble sleeping, her physical health and well-being have been taxed through worry, stress, grief, and loss, and it has been a constant battle to remain strong and steadfast. She no longer feels safe and has lost confidence in the judicial system. The sound of police sirens gives her panic attacks, and she reacts negatively when she sees a police officer get out of their car to approach a stopped vehicle. Valerie emphasizes how much she misses her son and notes that although Sgt.

Harnett was the youngest of her three boys, he was always the one the others called to discuss their important issues. Finally, Valerie highlights that the greatest victim of Andrew's death is his son. [ 21 ] Sgt. Harnett's brother, Jason Harnett, described the difficulty his family has experienced in moving forward. He notes that New Year's Eve is no longer an occasion for celebration or renewal. Instead, it represents a terrible memory. Jason emphasizes the close bond he shared with his brother, stating that he lost the person who understood him and accepted him for who he was. To Jason, Sgt.

Harnett was not only a brother but a best friend. Jason notes that he has become angry, feels robbed, attends therapy on and off, and feels hollow. He also referenced the reoccurring trauma he experiences every time he hears another police officer has been killed and describes how he relives the immense pain and sorrow of the families impacted. [ 22 ] Sgt. Harnett’s eldest brother, Chris Harnett, reflected on his lost opportunity to make more happy memories with his younger brother Andrew.

He was particularly saddened by his inability to spend time with his brother and both of their young sons, making memories with their families. [ 23 ] Chris recalled the last time he and Andrew spoke on Christmas day in 2020. In their last correspondence, Andrew sent Chris a message to wish him a Merry Christmas and a Happy Birthday. In addition, Andrew attached a surprise gift: an ultrasound of his soon to be baby boy. Chris responded with a congratulations and stated that it was the best present ever. [ 24 ] Six days later, Chris recalls a part of him dying with his brother.

He described the initial shock, disbelief, sorrow, and pain that came with the news his brother had passed. He knew things would never be the same. [ 25 ] Chris emphasized that the actions of AM had taken an incredible person from so many people, stating that AM’s actions changed the direction of so many lives, ended so many dreams and created a never-ending nightmare. He stressed that in addition to AM living with the consequences of his actions, so too would so many other people that loved and cared for Andrew.

Chris is reminded every Christmas season with friends and family, every birthday, and every New Years of the loss his family has suffered. Instead of a celebration, there is sadness. Instead of Christmas stories, there are now Andrew stories. Instead of happiness, there is bitterness. Chris “will live with this void in [his] soul for the rest of [his] life”. He concluded that “Andrew would have been an incredible father. He would have been an incredible uncle. But he never got that chance.” [ 26 ] Officer Keegan Metz directly addressed AM in his Victim Impact Statement on behalf of Sgt.

Harnett’s friends, family, and fellow members of the CPS. He made clear that the actions of AM that New Years Eve forever changed the lives of everyone who was fortunate enough to know Andrew. He described the emotional and physical damage that AM caused as “insurmountable and intangible”. Andrew’s friends, coworkers, and loved ones, had “a friend, confidant, leader, and role model” in their lives that was replaced by “an unfillable void…where Andrew once stood”. [ 27 ] Officer Metz was particularly upset at being robbed of Andrew by AM’s “arrogant and strategic actions in fleeing from the police”.

He also stressed the pain he endured sitting through the proceedings and listening statements made in AM’s defence, namely that he had been racially profiled and intimidated by Andrew. Officer Metz called these allegations baseless and stressed that if AM had taken the time to listen to Andrew that night, he would have found that “he was honest, trustworthy, and respectful to everyone”.

Officer Metz emphasized that AM’s allegations “added insult to injury” for anyone who had the privilege of knowing Andrew. [ 28 ] Officer Metz hoped that AM would understand that the span of the trial was perhaps the most emotionally damaging for the friends and family of Andrew. He stated that listening to AM’s testimony was “salt in an open wound”. Officer Metz closed by giving AM something to remember: “regardless of how long your imprisonment is, if you do not accept accountability and own up to your actions, you will be a prisoner forever.

A prisoner within yourself.” [ 29 ] These victim statements help me to appreciate the profound impact of this offence at both the individual and community level. Accordingly, I have considered these statements as they play an important role in the criminal justice system: R v Wharry , 2008

ABCA 293 at para 22 . To the extent that any comments contained in the statements stray from what is permissible, I have not considered these portions. IV. Circumstances of the Offender [ 30 ] Sentencing is a highly individualized exercise: R v Parranto , 2021 SCC 46 , at para 113 . A sentence must be customized to address the specific circumstances of both the offender and the offence to achieve proportionality. In other words: …Sentencing judges must decide a profoundly contextual issue: "...

For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code : Parranto at para 113 [emphasis in original] [ 31 ] As such, the circumstances of the Offender must also be carefully assessed to properly engage in a contextual analysis. [ 32 ] Much of what is known about the Offender’s background and circumstances comes from evidence provided during the adult sentencing application. [ 33 ] At the time of the offence, AM was 11 days shy of his 18th birthday.

The evidence established that in many ways AM's lifestyle was similar to that of an adult. In other ways, he displayed traits more consistent with a youth. These indicia and my assessment of them are addressed in detail in my Adult Application Reasons and need not be repeated here. [ 34 ] AM is the youngest of 10 children. All the other children in the family are his half-siblings. He comes from an underprivileged background. AM's father was an alcoholic and was violent toward AM's mother and the family.

As a result of this violence, AM's mother relocated numerous times between Montreal, Toronto, and Calgary for safety reasons. To escape the domestic violence, at various times, AM lived with his mother and two older siblings in women's shelters, churches, and homeless shelters. His parents formally divorced in 2020. [ 35 ] AM's upbringing was unstable. His many moves were disruptive to his ability to form lasting bonds, and he lacked parental stability.

In my Trial Reasons, I found that being on the run from an abusive father may have resulted in AM believing that taking flight was a reasonable response to a perceived threat. [ 36 ] His unstable upbringing influenced how he formed his peer group, as well as his attitude toward education and making money. In 2018, AM went to live with his older half brother, S, in Montreal, for approximately six months.

This move was encouraged by his mother in an attempt to remove AM from associating with a criminally minded peer group. [ 37 ] AM worked part-time as a dishwasher and had been receiving CERB unemployment insurance due to Covid restrictions at the time of the offence. [ 38 ] Many letters of support were written on AM's behalf for the Adult Application hearing. Both his mother and his half-brother, S, expressed a commitment to support AM upon his release, as have certain members of his support team at the Young Offender Centers.

A number of these letters spoke highly of AM’s character. [ 39 ] AM may have suffered from ADHD as a child. However, the opinion of Dr. Ennis, who provided expert evidence during the Adult Application hearing, was that AM's cognitive functioning was not an issue and any historical presentation of ADHD was irrelevant to his current makeup. AM does not use or abuse drugs or alcohol. [ 40 ] AM is an individual of Arab descent and a practicing Muslim, having reconnected with his faith since being detained.

He identifies as a racialized individual and recounted situations where he believed he was subjected to discrimination, including having been singled out as a person of colour by police during a party and having experienced more subvert forms of race-related treatment in general. [ 41 ] While I do not deny that AM experienced racism in his life, as discussed in my Trial Reasons, the interaction between CPS officers generally and Sgt. Harnett in particular, displayed no indicia of discrimination and was completely professional and courteous: see paras 194-195.

While I acknowledge the relevant and historical social context of AM’s experiences, there was nothing in evidence that would indicate there was any interplay between his identity as a racialized person and the judicial system. This distinguishes the case before me from R v Morris , 2021 ONCA 680 , and R v Araya , 2023 ABCJ 174 put forward by the Defence. [ 42 ] AM had completed the 10 th grade prior to his arrest. While in remand between the Edmonton and Calgary Young Offender Centres, he successfully completed his high school education.

Since his incarceration, AM took some important steps towards his rehabilitation. He participated in a number of programs made available in Youth Custody and voluntarily took on an informal mentorship role to younger inmates. V. Position of the Parties [ 43 ] The range of available sentences in cases of manslaughter is broad. The maximum punishment for manslaughter is life imprisonment: Criminal Code s 236. There is no minimum sentence unless a firearm is used, which does not apply in this instance.

The wide sentencing range reflects the variety of circumstances that may lead to a manslaughter conviction. [ 44 ] In arguing what would constitute a fit sentence for AM, the Crown takes the position that a term between 11-13 years is just. It further advocates that pre-sentence custody should be awarded on a 1:1 basis. [ 45 ] The Crown relies, in part, on the following authorities for support of its sentencing submissions: R v Mitchell , (30 August 2017), Calgary 150733384Q1 (ABQB), sentence aff’d on appeal 2018 ABCA 325 ; R v Jiwa , 2011 ONSC 4071 , aff’d, 2012 ONCA 532 ;

R v Bell, 2003 CarswellMan 594 (MBQB) aff’d, 2006 MBCA 19; and R v Hennessey, 2009 ABQB 60, aff'd 2010 ABCA 274, leave toappeal to SCC refused, 34241 (25 August 2011). [46] It further relies on the following authorities to argue that pre-custody time should be credited using a 1:1 basis: R v Summers,2014 SCC 26; R v Biever, 2023 ABCA 138 and; R v B(T) (2006), (ON CA), 206 CCC (3d) 405 (ONCA). [47] Counsel for AM submit that 7.5 years amounts to a fit and proper sentence in all of the circumstances.

Defence counselfurther take the position that AM should receive pre-trial credit on a basis of 1.5:1, except for the time AM was subject to enhancedCovid-19 restrictions, which they state should be credited on a 2:1 basis. Counsel rely on the following cases for their argumentconcerning the length of the sentence: R v Pratt, 2007 BCCA 206, R v K(DT), 2015 MBQB 119; R v Strathdee, 2020 ABCA 443;Araya, and; Morris. [48] The Defence relies on the following authorities in arguing for enhanced credit for time served: R v F(BC), 2009 SKCA 136and B(T). VI. The Law [49]

Section 74 of the Youth Criminal Justice Act, SC 2002, c 1 (“YCJA”) provides that

Part XXIII (Sentencing) of the CriminalCode applies to a young person subject to an adult sentence. In determining an appropriate sentence within these parameters, theCriminal Code elucidates the purpose and principles of sentencing, as set out in ss 718 - 718.2 of the Code.

Section 718 provides asfollows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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 and the harm done to victims or to the community that is caused by 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; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [50] Sentencing has been described as "one of the most delicate stages of the criminal justice system in Canada": R v Lacasse,2015 SCC 54 at para 64. In fulfilling the above-noted purpose and objectives, the Court must respect the fundamental principle that asentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Code, s 718.1; R v Friesen,2020 SCC 9 at para 30.

In Lacasse at para 53, the Supreme Court described how the fundamental principle of proportionality relates toparity and individualization: This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides thata sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence willtherefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both on anindividual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciledfor a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [51] Secondly, s 718.2 of the Code provides that: (

a) a sentence should be increased or reduced to account for any relevantaggravating to mitigating circumstances relating to the offence or the offender; (

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

d) an offender should not be deprived of liberty if lessrestrictive sanctions are appropriate, and; (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstancesand consistent with the harm done to victims or to the community should be considered for all offenders […]. [52] The offence of manslaughter covers a wide spectrum of cases from near accident to near murder, and different degrees ofmoral culpability are found along the spectrum: R v Laberge, 1995 ABCA 196 at para 6. Therefore, in determining a fit sentence formanslaughter, the Court must consider "what rung on the moral culpability ladder the offender reached when he committed theprohibited act": Laberge at para 6.

This exercise is performed to ensure that the sentence imposed fits the degree of the moral fault of theoffender for the harm caused. [53] In providing guidance concerning the application of sentencing objectives and principles in determining a fit sentence forcases involving unlawful act manslaughter, the Laberge Court delineated between the determination of fault for conviction purposes andfor sentencing purposes.

In so doing, it stressed the need to note the distinction between fault in term of an offender's mens rea at thetime the offence was committed, and fault in terms of the offender's overall moral blameworthiness for the crime: para 7. Althoughmanslaughter only requires objective mens rea to be proven, culpability increases where an offender's conduct evinces elements ofsubjective intent: Laberge at para 13. [54] In addition, the Court directed that in crafting a sentence, one must look beyond the offender's mental state in evaluatingmoral blameworthiness.

At para 8, it instructed that: …the offender's level of moral culpability will be influenced by other factors. In the case of unlawful act manslaughter, the most

important of these will be what the unlawful act itself involved. The nature and quality of the unlawful act itself, the method by which it was committed and the manner in which it was committed in terms of the degree of planning and deliberation are all relevant to this inquiry. [ 55 ] In examining the underlying unlawful act/conduct which resulted in the victim's death, the Court stated that such underlying unlawful conduct may be divided into a number of categories. These classifications were later encapsulated by our Court of Appeal in R v Deer , 2014 ABCA 88 into three categories as follows, at para 27:

a) acts which are likely to put the victim at risk of, or cause bodily injury;

b) acts which are likely to put the victim at risk of, or cause serious bodily injury; and

c) acts which are likely to put the victim at risk of, or cause a life-threatening injury. [ 56 ] In applying these principles, I agree with Defence counsel's submission that the above analysis should not be applied using a lock-step approach, but rather should be assessed as a continuum with varying degrees of moral culpability along this spectrum: Laberge at para 6 .

Moreover, this analysis does not take place in a vacuum - it must be analyzed contextually with each of the factors that influence the specific offender's moral culpability for a crime: Laberge at para 17 . [ 57 ] In assessing mens rea for the purposes of sentencing, the Laberge Court stated that establishing subjective knowledge is important in determining blameworthiness for sentencing purposes.

As it explained, at para 14: …all other things being equal, the more an offender's "intention" or "awareness" approaches the point that he knew or was willfully blind to the fact that his unlawful act was not only likely to put the victim at risk of death, but indeed to cause death, the more culpable he is.

Similarly, even absent proof of subjective mens rea , the more that the offender's conduct, on an objective basis, approaches the point where it can be said that he ought to have known, had he proceeded reasonably, that his unlawful act would be likely to cause life- threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable he is.

In other words, the offender's moral blameworthiness and in turn the gravity of the offence are functions of the degree of fault. [ 58 ] In R v Pate-Miller , 2016 ABCA 295 , our Court of Appeal instructed that the sentencing judge may "draw inferences from the unlawful act and the surrounding circumstances" to determine an offender's subjective mens rea for the purposes of the Laberge classification: para 9 . Whether this additional level of subjective intent has been established is important in assessing an offender's blameworthiness for sentencing purposes: Laberge at para 14 . VII.

Analysis [ 59 ] In my Trial Reasons, I found that AM meant to cause Sgt. Harnett serious bodily harm. He took numerous deliberate and intentional steps geared toward expelling Sgt. Harnett from the vehicle. He was aware of the speed he was traveling, and he would have been aware that Sgt. Harnett would have fallen onto the middle of the roadway. I found that while the situation was chaotic, AM clearly turned his mind to his objective, namely taking all measures to dislodge Sgt.

Harnett from vehicle in order to escape: Trial Reasons paras 235-245. [ 60 ] For sentencing purposes, AM's conduct in repeatedly and deliberately attempting to eject Sgt. Harnett from the side of a vehicle that was travelling between 80-90 kph into the middle of a busy roadway, leads me to conclude that at minimum, AM ought to have known - or was wilfully blind to the fact - that this unlawful conduct would likely cause Sgt. Harnett life-threatening injuries as opposed to simply putting Sgt. Harnett at risk of bodily injury.

To borrow language from the Court of Appeal in Jiwa , “it is inconceivable that any driver could fail to appreciate the harm that would be caused by such [actions]”: at para 19. [ 61 ] In driving in the manner that he did and in engaging in his repeated assaults upon Sgt. Harnett, AM intended the consequences of his actions – that is, expelling the officer onto a busy roadway at high speeds. As such, AM either would have known that this unlawful act would likely subject Sgt.

Harnett to life-threatening injuries, or, knowing the probable consequences of his acts, he nevertheless proceeded recklessly in the face of a very real risk. [ 62 ] I emphasize that AM’s movements were not unintended or clumsy in this regard; he had full control over his manoeuvres, which appear coordinated and purposeful. In my view, his moral culpability falls toward the highest end of the Laberge/Deer spectrum.

Indeed, in oral argument, Defence counsel conceded that my findings of fact place AM within the most serious category of fault and point inexorably to a high degree of moral culpability. [ 63 ] The more serious the crime and its consequences and the greater the degree of responsibility of the offender, the heavier the sentence: Lacasse at para 12 . [ 64 ] The gravity of the offence in this matter is significant. Homicide is one of the most serious offences in our Criminal Code . Pursuant to the Laberge analysis, AM's moral culpability is at the top end of the spectrum.

The nature of the unlawful act coupled with the knowledge that such an unlawful act would be likely to cause life-threatening injuries when viewed objectively place AM's moral culpability proximate to the "near murder" end of the spectrum. [ 65 ] However, as Defence counsel argues, this classification does not end my analysis.

In order to craft a fit and proportional sentence, the factors supporting this classification may be attenuated by other considerations affecting the circumstances of the offence as a whole. [ 66 ] Laberge does not suggest that an offender automatically deserves a punishment at the high end of a sentencing range simply because their actions fall objectively within the highest category: R v Phillips , 2023 ABCA 210 at para 23 , citing R v Naslund , 2022 ABCA 6 at para 163 ; R v Shyback , 2018 ABCA 331 at para 13 ; R v Campbell , 2022 ABCA 410 at paras 31-33 .

[ 67 ] While the categories are instructive when sentencing for manslaughter, they do not provide an exhaustive measure of the offender's moral blameworthiness: Phillips at para 23 . To complete the moral blameworthiness picture, the Court must also have regard to those personal characteristics of the offender which would mitigate or aggravate culpability: Laberge at para 10 . I will address the sentencing objectives and the mitigating and aggravating factors in this specific case next. A.

Sentencing Objectives [ 68 ] I begin by stating that when sentencing in homicide cases, the objectives of denunciation and deterrence, as well as protection of the public are often paramount: Laberge at paras 23-25 ; R v Dodgson and Holloway , 2023 ABQB 106 at para 234 . This analysis remains consistent when

an act of manslaughter approaches the classification of "near murder". While there is no blanket rule in determining which sentencing objectives take precedence, I find that in this case, denunciation and deterrence are paramount, and rehabilitative goals are secondary: see Jiwa at paras 27-29 and 33 (ONCA). [ 69 ] More specifically in the case at hand, where a police officer has died in the line of duty, denunciation and deterrence take on added significance. Society's condemnation for those who cause the death of police officers acting in the course of duty is well documented in Canadian jurisprudence.

As noted by C. Ruby in Sentencing , 10th ed (Toronto: LexisNexis, 2020) at § 5.69: The fact that the victim of a crime is a police officer…acting in the execution of his duty will ordinarily tend to increase sentence because of the necessity of protecting the police and the importance of upholding respect for law… [ 70 ] This principle was acknowledged the case of Hennessey , which was relied upon by the Crown. In Hennessey , this Court held, at paras 59-60 that: The public relies on police officers to provide safety and security.

An attack on a police officer is an attack on society itself, and when a police officer is killed in the execution of duty, the community is understandably outraged. Members of the public must know that police officers acting in the course of duty are to be obeyed and respected, failing which heavy penalties will follow.... [ 71 ] It is for these reasons that I consider denunciation and deterrence to be primary considerations in this case.

The killing of a person whose obligation it is to maintain law and order carries with it added moral culpability and requires a heavier deterrent to protect the public interest. [ 72 ] The Court of Appeal in Hennessey echoed these comments, stating, at para 16, that "apart from treason in wartime, killing police officers is probably the most serious crime in Canada". [ 73 ] The Crown points to both Hennessey and Bell as authorities demonstrating that even limited participation in an offence, which results in the death of a police officer, can carry very significant penal consequences where the offender is guilty of manslaughter. [ 74 ] That said, while denunciation and deterrence are the primary sentencing objectives in these circumstances, they are not the sole objectives.

I remain mindful that even though the Crown was successful in its YCJA s 72(1) application to have AM sentenced as an adult, he was still a youth at the time the offence occurred. I address this factor in some detail, below. [ 75 ] AM's status as a youthful offender, in addition to what is known of his personal circumstances, means that the additional objectives of rehabilitation/reintegration and encouraging personal accountability will inform on the determination of a just sentence. B.

Aggravating and mitigating factors [ 76 ] The following aggravating factors I have found to exist in my Trial Reasons beyond a reasonable doubt. [ 77 ] First, the fact that the victim was an on-duty police officer has been rightly acknowledged by Defence counsel as "particularly aggravating". When AM was temporarily lodged on the berm, he faced a critical decision point. Knowing he was interacting with a police officer, he should have stopped his flight; instead, he redoubled his efforts and sped off.

The focus upon deterrence and denunciation as primary sentencing objectives leads me to consider this as an aggravating factor. [ 78 ] After successfully dislodging Sgt. Harnett from the vehicle out onto the roadway, AM continued his flight from police. This decision to continue with the flight is also an aggravating factor: see Pratt and Jiwa , below. I nevertheless acknowledge that AM’s abusive past and childhood circumstances may have conditioned some form of instinctive flight response in the face of perceived danger. He was also in a state of self-induced panic.

Liability could not be avoided by flight as AM’s identification was already known by police. As such, while the act of flight in this instance is not as aggravating as it might otherwise be, it nevertheless remains a consideration because, upon reflection of the events when he returned to his basement suite, AM did not return to the scene to provide aid to the victim or the investigation. [ 79 ] In addition, I find as aggravating the fact that AM was driving dangerously throughout the latter portion of his flight.

As found in my Trial Reasons he was traveling between 1.6 to 1.8 times over the posted speed limit at night and during the winter. He was travelling at this speed even though he was clearly distracted by his ongoing attempts to dislodge Sgt. Harnett. Flight at a high rate of speed was similarly considered aggravating in Mitchell (ABQB). [ 80 ] AM’s deliberate actions to expel Sgt.

Harnett from the car and leave him helpless in the middle of the roadway are particularly reckless and show a callous indifference to the fate of the victim. [ 81 ] The degree of planning and deliberation in the commission of an offence is also relevant to the Court's analysis of moral culpability. Evidence of planning and deliberation is an aggravating factor: Dodgson and Holloway at para 125 .

[ 82 ] In my Trial Reasons, I inferred that during the initial portion of the traffic stop, AM formulated a plan to flee from the police, if the stop became more involved than expected: paras 207, 234 and 263. I found that once the occupants of the vehicle determined that they faced increased jeopardy, the plan crystalized, and AM deliberately chose to engage in flight. [ 83 ] In Laberge , the Court states that "of course, all other things being equal, impulsivity is less blameworthy than planned or repeated conduct": para 18. However, the Court goes on at paras 18 and 21 to conclude that: …But simply because

an act was impulsive does not automatically mean that it falls at the lower end of the manslaughter scale. [...] What is of vital importance in determining what inferences, if any, a court should draw is what the unlawful act and the other surrounding circumstances involved.

The relevant inquiry is this: even though the act might have been spontaneous as opposed to planned, was the unlawful act of a kind and quality and the other circumstances such that the offender falls, on either an objective or subjective basis or both, within one of the increased culpability levels that I have identified? [ 84 ] In my view, AM’s initial decision to flee, although unsophisticated, was not an impulsive one: Trial Reasons, para 86.

Although the planning and deliberation were made in relation to what would have been a separate, lesser offence, it is still an aggravating factor, albeit to a lesser degree, as the initial plan was only to flee the scene. [ 85 ] Defence counsel likened the circumstances of AM’s flight to those in K(DT) . In that case, the 17-year-old offender drove over a busy sidewalk in an attempt to escape a chaotic situation and in so doing, killed two individuals. In my view, the facts of K(DT) are easily distinguishable. She was at a party during which time a large number of individuals had taken to the street to fight.

The offender was sitting in her van when it was attacked. Although impaired, she felt her best course of action was to leave and drove the van over a curb at which point it swerved to the right and unintentionally struck two pedestrians. [ 86 ] The Court described the offender’s decision to flee while in the van as one of impulse and very bad judgment. However, it went on to note that she was in a situation where she legitimately feared for her own safety. In so stating, the Court found that her goal of escaping for her own safety distinguished her situation from those in Pratt and Jiwa .

In characterizing her degree of moral culpability, the Court found it to be much closer to an accident than an intentional act. Conversely, as noted above, AM devised a plan to flee in advance, and carried it out with deliberate escalating actions, knowing it was reckless: Trial Reasons para 207-208. [ 87 ] Finally, evidence that the offence had a significant impact on the victim is also an enumerated aggravating factor. This fatal impact on Sgt. Harnett is obvious. But beyond this, the impact on his family, the CPS, and the community generally was poignantly captured in the Victim Impact Statements.

The profoundly deleterious impact of this crime, as described in the victim impact statements, may amount to an aggravating factor: R v G(A) , 2015 ONCA 159 , at para 73 ; R v Pettitt, 2021 ABQB 773 at paras 60-62 . I find that they do. Here, AM's actions have fractured a family that was on course to be bonded by the birth of a child; most notably, it has left a son to grow up without the opportunity to ever get to know his father. [ 88 ] AM’s youth criminal record was taken into consideration in my Adult Application Reasons.

I place no significant emphasis on his limited youth record here. [ 89 ] Defence counsel takes the position that a number of mitigating factors exist. I shall deal with each submission in turn. [ 90 ] First, counsel points to the fact that AM turned himself in shortly after learning of Sgt. Harnett's death, and that he counselled his co-accused passenger, Mr. Abdulrahman to do the same. [ 91 ] Even prior to flight, CPS knew the identities of both AM and Mr. Abdulrahman. First-degree murder warrants for the death of a police officer were issued in short order identifying each individual by name and by photograph.

In my view, surrender in such circumstances is entitled to very little weight. As noted above, AM did not return to the scene to provide aid to the victim or the police investigation. [ 92 ] Counsel also points to AM's indications of remorse and his apology to Sgt. Harnett's family. These factors were addressed at some length in my Adult Application Reasons: paras 150-155. While AM's Pre-Sentence Report and Dr.

Ennis's Report speak to daily reflections of his actions and their impact upon the Harnett family, I found these self-reported ruminations at odds with his presentation during trial. [ 93 ] In his written submissions on sentencing, AM's counsel referenced his client's apology. While I acknowledge that AM apologized, and while he plainly states that Sgt. Harnett's death was not something he wanted to occur, I reiterate that I found his apology more focused upon himself and on how his actions would affect his life, as opposed to how his actions have impacted his victims.

This is demonstrated in a review of his apology, where although AM states he is sorry and wishes that he could undo his actions, he goes on to assert: Like, this is something I'm going to have to live with for the rest of my life... For the rest of my life, I'm going to be known as someone who killed a police officer. No matter what, no matter what happens, this is -- this is it. This is what's - no matter what, I'm going to be known as that. It's like articles, even articles, they -- like, I've - I've seen things where it's like… Oh, yeah, he's a monster, and, Oh, he's this, and, Oh, he's that.

Like, I have to live with that, you know…. [Transcript (Sept 27, 2022 at 47 lines 2-7] [ 94 ] The law is clear that expressions of genuine and actual remorse are mitigating: R v SLW , 2018 ABCA 235 , at para 37 . I accept that not everyone is able to express themselves in a manner that reflects their true feelings, and that their ability to communicate effectively may be impacted by numerous personal factors. I also accept that apologizing during testimony in open court is a difficult situation.

Here, although I accept AM is regretful and is sorry about his role in what happened, I still give this factor less weight than I otherwise would have, as the focus of his remorse - whether in court or to third parties - was consistently on how this crime affected this own future. There are many steps he could have taken to express his remorse, particularly given the profound impact on the family and community, but he did nothing further.

[95] Counsel for AM also points to his client's guilty plea as a mitigating factor. While AM was charged with first degree murderat the outset of trial, he pleaded guilty to manslaughter. The Crown rejected this plea, although AM was ultimately convicted of thisoffence. The effect of a guilty plea was discussed by our Court of Appeal in R v Ryan, 2015 ABCA 286, where it stated, at para 35 that: In this regard, the normative principle that actuates giving mitigating effect to a guilty plea in sentencing is contained in s 718(

f) of theCode. Under this section, one of the objectives of a just and fair system is to have the offender accept responsibility for his or her crime.[italics in original] [96] In addition to demonstrating some acceptance of responsibility, a guilty plea is also considered a mitigating factor because itsaves valuable judicial resources, and spares victims and witnesses of traumatic events the distress of reliving their ordeal in court. [97] This case was not one involving an early guilty plea. Rather, AM pleaded guilty to the lesser and included charge ofmanslaughter at the outset of his murder trial.

As recently noted by our Court of Appeal in R v Martineau, 2021 ABCA 401 at para 24: … the earlier the guilty plea is made, generally speaking the stronger its mitigating weight, because the early timing of the pleaparticularly results in saving of time and expense for the administration of justice and relieves the need for witnesses to prepare andtestify. [98] The timing of the plea causes me to give it less weight, as all of the preparation for trial had occurred by this point.

That said,even a late plea at the outset of trial would have some mitigating effect because it relieves witnesses of the need to testify: Martineau, atpara 26. [99] The mitigating effect of a guilty plea should not be wholly negated even if made in the face of an overwhelming Crown case,such as the case before me: Martineau, para 24. However, our Supreme Court has acknowledged that a guilty plea may be awarded lessweight in the face of an overwhelming Crown case: Friesen, at para 164 [emphasis added].

In SLW, our Court of Appeal disagreed withthe proposition that a guilty plea in the face of a strong Crown case is of little value: para:33. [100] While I do not find that AM’s guilty plea is of “little value”, I do conclude that, given it was made at the outset of trial in theface of an overwhelming Crown case for manslaughter, it is of “less value”. Clearly it still demonstrates some element of remorse andrehabilitation and, had it been accepted, would have saved judicial resources – albeit not near the same extent as when an early plea ismade.

Most noteworthy, in cases such as this, it would have prevented witnesses from having to relive an extremely traumatic eventagain during testimony. I conclude that AM’s guilty plea is a mitigating factor, although I do not consider it to be a weighty one. [101] I have also considered the submissions from counsel concerning the effect of this plea on trial strategy. In particular, as noted inmy Trial Reasons, notwithstanding AM's plea to manslaughter, the defence raised the question of causation during closing argument attrial.

However, it is recognized that the Crown’s rejection of a guilty plea in such circumstances leaves an accused with the right to makefull answer and defence of his or her case. [102] In Shyback, our Court of Appeal found that the accused's decision to raise a defence of self-defence in a murder trial followingthe Crown's rejection of his guilty plea to the offence of manslaughter may diminish the mitigating effect of the proffered plea but doesnot eliminate it: para 33.

Rather, the Court determined that the accused's stance at trial can be considered by the court in weighing themitigating effect: para 34. [103] Although in other cases, raising an argument of intervening cause after entering a guilty plea may dilute an offender'sacceptance of responsibility, in the circumstances, it did not detract from determining whether the elements of manslaughter had beenestablished on the requisite standard. [104] In the result, AM's guilty plea demonstrated some acceptance of responsibility, and would have obviated the need to proceedwith a lengthy, emotional trial.

I am of the view that it is somewhat mitigating. In so finding, I am informed by our Court of Appeal'sanalysis in Martineau, at paras 21-35. [105] Finally, Defence counsel argued that AM's youthful age at the time of the offence should be viewed as a mitigating factor: see Rv Quast, 2006 ABCA 182 at para 4.

The Crown agreed that where an offender is a young person, this may be mitigating as youthfuloffenders may have varying degrees of moral culpability and may be stronger candidates for rehabilitation. [106] Although, in bringing a successful s 72 YCJA Application to sentence AM as an adult, the Crown has rebutted the presumptionof diminished moral culpability, this does not mean that age plays no role in assessing whether an offender's youthful status mitigates hisor her level of moral culpability.

As noted by our Court of appeal in Ryan at para 54, while referencing R v Shropshire, (SCC), [1995] 4 SCR 227: Offenders are often younger people. It should be no surprise if clemency is considered proper in cases where younger offenders have noprior records and have otherwise reasonable prospects for prosocial lives. [emphasis added] [107] In addition to the sentencing objectives of denunciation, deterrence (both specific and general), and the need for separation fromsociety, the age of the offender often results in increased weight being placed on the objective of rehabilitation.

Indeed, youth isgenerally acknowledged to be a mitigating factor because a young age corresponds with increased prospects for rehabilitation: R v Scott,2015 ABCA 99 at para 13. [108] Much was said concerning AM's potential for a pro-social future by Dr. Ennis as discussed in my Adult Application Reasons.Notably, Dr. Ennis classified AM as a high-risk, high-needs offender who requires high intensity treatment and supervision. He opinedthat AM will require additional supports if he is to maintain a pro-social and crime-free lifestyle upon release from custody.

While Dr.Ennis expressed clear concerns about AM's immersion into a negative peer environment in a federal institution, he was also of theopinion that AM would benefit from a rehabilitative program which focuses on education and work skills. He opined that participation inthis form of programming will play an essential role in AM's successful reintegration into society. He further cautioned that a lack of

structure and programming could lead to violent recidivism. [ 109 ] In my Adult Application Reasons, I accepted that, based on various reports, it appeared that AM had demonstrated increased maturity since being remanded into custody. For example, he has completed his high school degree and has expressed a desire to pursue post-secondary education.

Although some of this self-professed growth may have been a form of "impression management" and his behaviour was variable and lacked a consistent upward trajectory, I nevertheless believe that if AM avoids the trappings of a negative peer group, rehabilitation is a viable and realistic sentencing objective. The fact that AM rejects drugs and alcohol will no doubt assist in his rehabilitative efforts. [ 110 ] Because AM was 17 at the time of the offence, the interplay between the

Part XXIII Sentencing Provisions of the Criminal Code and sentencing objectives espoused in the YCJA should be examined. Both Acts involve the balancing of potentially conflicting principles to arrive at a sentence tailored to the individualized circumstances of the offender and the offence. The Crown takes the position that its proposed range of sentence reflects the fact that AM is a youthful offender. [ 111 ] There is some inconsistency in existing case law as to how the sentencing principles in each Act assist in determining a fit sentence.

For example, in R v Smith , 2012 NSCA 37 , the Court held that where a young person receives an adult sentence, the sentencing principles in each of the adult and youth regime are informed by the other: para 24-25. [ 112 ] By contrast, the Saskatchewan Court of Appeal has held that principles from the YCJA are not to be considered when sentencing a young person as an adult: R v F(BC) at paras 29-35 . [ 113 ] In R v H(P) , (2000) 68 WCB (2d) 851 (Ont Sup Ct Jus) the Court commented, at para 78 that: ...

The YCJA recognizes, in s. 3(1) (b)(ii), that there is a fundamental difference between young persons and adults, and that the criminal justice system must take into account, in determining what is referred to in the Act as fair and proportionate accountability, that young persons have a greater dependency and a reduced level of maturity. In my view, the fact that an adult sentence is to be imposed on a young person does not change the need to be mindful of this reality. [ 114 ] In Pratt , the British Columbia Court of Appeal held that barring any inconsistency between s 3 of the YCJA and

Part XXIII of the Code , there is no basis for concluding that s 3 of the YCJA has no application: para 52.

The Court further held that: …in my view, the two provisions [s 718 of the Code and s 3 of the YCJA ] may be read together to give a sentencing response to an offence that, in being greater than is allowed for a youth sentence, both responds to the objectives of s 718 and reflects the principles of s 3…: para 53 [ 115 ] Notably, the Court in Pratt went on to state at paras 56-57: I conclude, therefore, that in sentencing a young person to an adult sentence pursuant to s. 74 of the [ YCJA ], the sentencing judge was required to strive to fashion a sentence that addresses the objectives of s. 718 of the Code and as well emphasizes, to the degree possible in the context of the evidence before the court, both the young person's rehabilitation and reintegration and "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity".

The result is that while an adult sentence is reserved, in the language of B.W.P ., "for the most serious crimes", the adult sentence imposed will not necessarily be lock-step with the sentence that would be imposed upon an adult in circumstances that are identical except for the offender's age.

Only as the age of the offender approaches the cut-off age in the definition of "young person" is that result more likely. […] I would not say, given the language in s. 3 of the Act , that this means that a sentence that otherwise fits the crime will always be reduced to take account of rehabilitation and reintegration, as the extent of the opportunity for rehabilitation and reintegration will be individual to the character and circumstances of the offender. [ 116 ] In this case, I adopt the reasoning in Pratt and do not perceive any conflict in taking the principles of s 3 of the YCJA into account.

Indeed, “[t]o hold that s. 3 has no bearing upon an adult sentence of a young person, is to move away from that long-held appreciation of the limitations of the not-yet-matured mind. I see no evidence in the Act that Parliament intended such a result”: Pratt para 54 .

In this regard, I further note that in R v Bird , 2008 ABQB 327 , it was common ground between counsel that as per Pratt , the principles set out in the YCJA continued to apply where a young person is subject to an adult sentence: para 62. [ 117 ] As N Bala and S Anand note in Youth Criminal Justice Law (Toronto: Irwin Law, 2012) at p 692: The adult sentencing principles of sections 718 to 719 of the Code apply, so that in addition to the factors that youth courts normally apply, including accountability and amenability to rehabilitation…the court will also consider general sentencing principles… Even if a youth court decides that an adult sentence is needed to hold a youth “accountable” (the test of

section 72), the age of the youth and rehabilitative concerns are important factors in the sentencing. [emphasis added] [ 118 ] I do note that in sentencing under the YCJA , general deterrence is not a factor for the youth court to consider: see s 38(2)(f). However, case law has held that general deterrence is a factor when imposing an adult sentence on a young person, although this factor should be balanced against the offender’s youth, decreased maturity and rehabilitative potential: R v O(A) , 2007 ONCA 144 at paras 79- 80 . That said, the jurisprudence interpreting this

section make it clear that in sentencing for the death of a police officer under the Criminal Code , both general and specific deterrence remain central objectives. [ 119 ] As noted by this Court in Hennessey : “It is absolutely essential that all members of the public understand that violence against police officers in the course of their duties will be severely sanctioned”: para 59. This of, course speaks of general deterrence.

While general deterrence is therefore a factor in this case, especially given the identity of the victim, I do not view this as being incongruous with the overarching objectives of the YCJA . Notably, the application of this objective does not necessarily conflict with the concurrent objectives of ultimate rehabilitation and reintegration.

[ 120 ] Support for this view is also found in Pratt , where the Court of Appeal held, at para 55 that: I conclude that an adult sentence pursuant to s. 74, such as the one imposed on Mr. Pratt, remains a sentence under the Act . That being so, I see no basis upon which to say that the principles set out in s. 3 do not apply.

To put it another way, the effect of s. 74 is to bring into the sentencing of a young person the principles of s. 718 which are otherwise not applicable, such as specific and general deterrence , and not to exclude the general principles set out in s. 3. [emphasis added] [ 121 ] I therefore conclude that although denunciation and deterrence are the primary sentencing objectives, I accept that there is a good chance that AM will successfully rehabilitate and reintegrate into society, if he continues with intense programing – as suggested by Dr.

Ennis - and avoids negative peer influences, which he has demonstrated being capable of doing more recently. [ 122 ] Although AM was just shy of his 18 th birthday, I still consider that his relative youthfulness and his efforts to take courses and become a role-model in detention contribute to his ability to achieve rehabilitation and reintegration. His youth is therefore a consideration in achieving fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. C. Sentence Parity [ 123 ]

Section 718.2 of the Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences considered in similar circumstances. This principle is commonly referred to as parity in sentencing and it requires the Court justify disparities between sanctions for comparable offences to reduce unjustified distinctions between offenders who are otherwise similarly situated: R v Ipeelee , 2012 SCC 13 . [ 124 ] Ensuring that similar offences attract similar punishment helps to ensure proportionality in sentencing.

Put another way, parity gives meaning to proportionality: Friesen at paras 32-33 . Of course, as all counsel in this case acknowledged, similarity is often an illusory concept. It is difficult to draw a true parallel between the authorities relied upon by the parties and the case before me given the factual diversity in each case.

These cases do, however, offer some guidance in establishing a range of sentences which may be compared and contrasted in an effort to effect consistency in sentencing and arrive at a fair and justifiable outcome. [ 125 ] Both parties relied on the sentencing judgment dealing with AM’s co-accused, who was the front seat passenger in the vehicle when the offence occurred, but for opposite reasons. Mr.

Abdulrahman, who was 19 years old at the time of the offence, pleaded guilty to manslaughter and received a 6 year sentence, reduced to 5 years for certain mitigating factors: R v Abdulrahman (28 January 2022), Calgary 210000535Q1 (ABKB). He had a minor criminal record. [ 126 ] I have had the opportunity to view Mr. Abdulrahman’s actions as captured on the various BWC footage. During AM’s flight, Mr. Abdulrahman took control of the steering wheel on three separate occasions for approximately seven seconds in total. [ 127 ] The first time Mr.

Abdulrahman took control of the steering wheel was when the vehicle was stuck on the berm. At this point, while AM is engaging in a physical struggle with Sgt. Harnett, Mr. Abdulrahman grabbed the steering wheel and cranked it to the right in three quick rotations. Mr. Abdulrahman additionally took control of the wheel on two occasions while the vehicle sped down Falconridge Drive. On each occasion, the BWC footage captured Mr.

Abdulrahman’s left hand on the steering wheel for an approximate two second period, meaning he touched the steering wheel for approximately four seconds total during this crucial part of the flight. Again, as noted in my Trial Reasons, the flight down Falconridge Drive lasted approximately 21 seconds. [ 128 ] I agree with Justice Hall, who presided over the sentencing of Mr. Abdulrahman, that Mr. Abdulrahman’s actions assisted in dislodging the vehicle from the berm. His brief control of the steering wheel assisted in the overall flight from police and allowed AM to focus his efforts at dislodging Sgt.

Harnett. [ 129 ] In terms of culpability, counsel for AM argued that Mr. Abdulrahman is less culpable than AM but argued that it was “not by that much”. During oral submissions, counsel stated that both AM and Mr. Abdulrahman had the same intention, which was to flee the traffic stop. Counsel reasoned that the difference in each parties’ actions was largely the result of where they happened to be positioned in the car. Counsel submits that Mr.

Abdulrahman’s actions cannot be meaningfully separated at law from those of AM, and that his degree of participation was fundamentally a matter of circumstance. [ 130 ] In arguing that “the blow of one is the blow of all”, counsel acknowledged that AM’s sentence should be higher than Mr. Abdulrahman’s but cautioned that a sentence that is more than double that of Mr. Abdulrahman’s would not reflect parity in sentencing and would be disproportional: Strathdee , at para 61 . [ 131 ] In my assessment of the facts and the applicable law, I respectfully disagree.

Defence counsel’s submissions that the outcome would essentially have been the same regardless of who was situated where in the vehicle invites speculation as to the relative intentions of the two Offenders. I do not have Mr. Abdulrahman’s testimony on this point. [ 132 ] I disagree that AM’s misfortune in bearing the majority of the culpability in this matter is a matter of pure circumstance. AM, and AM alone, had access to the gas pedal and the brake pedal. He alone determined the speed of the vehicle. He was the only individual in the vehicle who had physical contact with Sgt. Harnett.

He alone decided to escalate his attempts to remove the officer after prior attempts failed. To say that Mr. Abdulrahman’s actions cannot be meaningfully separated at law from those of AM is, in my view, to inappropriately conflate participation with moral culpability. [ 133 ] In the case of Strathdee , cited by the Defence, the Court was referring to joint participants in group assaults. At bar, I inferred that there was a common plan to flee. Unanticipated circumstances arose resulting in the flight subsequently incorporating a fatal assault perpetrated almost exclusively by a single principal offender.

The actions of AM and Mr. Abdulrahman are easily distinguishable due to the BWC footage, unlike the situation that is often the case in a group assault. In sentencing, the Court may take into account the relative degree of responsibility amongst parties to a crime: R v Karim , 2012 ABQB 727 at para 6 ; aff’d 2014 ABCA 88 .

[134] While I agree that Mr. Abdulrahman participated in the flight by touching the steering wheel while knowing that a policeofficer was attached to the car and knowing that AM was taking active steps to dislodge the officer, thereby helping AM in his objective,I agree with the reasons of Justice Hall that while the offence was most grave, Mr. Abdulrahman’s relative role in the offence wasmoderate to minimal. I further agree with Hall J’s finding that at no point was Mr. Abdulrahman ever in full control of the vehicle. Hedeclined to place Mr.

Abdulrahman toward the higher end of the Laberge spectrum. [135] I do note that certain mitigating factors are similar in relation to both Offenders. Although not a young offender, Justice Hallconsidered Mr. Abdulrahman’s relative youth as a mitigating factor, along with the fact that he pleaded guilty to the offence. Justice Hallalso noted that Mr. Abdulrahman had the support of his family, which would be of assistance in rehabilitation. Finally, he noted that Mr.Abdulrahman was genuinely remorseful and asked for forgiveness from Sgt. Harnett’s family. Given Mr.

Abdulrahman’s age, guilty pleaand expression of remorse, the sentencing Justice reduced Mr. Abdulrahman’s sentence from 6 years to 5 years, in order to reflect thesemitigating factors. [136] Here, AM’s youth, guilty plea and support of his family likewise reflect an increased hope of rehabilitation and some acceptanceof responsibility, which again are mitigating factors.

While AM’s expressions of remorse appear to have been more self-indulgent bycomparison, I accept them as an indication of remorse. [137] In sum, however, the fact that AM had sole control over the operation and speed of the vehicle, the decision whether to stop orgo, as well as being the only individual to physically assault Sgt. Harnett and engage in concerted action to expel him from the vehicle,greatly distinguish his relative degree of responsibility and moral culpability. I agree with the Crown’s submission that Mr.Abdulrahman’s sentence, insofar as it is offered as a comparator, is not of great assistance.

However, the ability to distinguish betweentheir relative contributions aid in my overall assessment of parity and proportionality. [138] Indeed, in my view, each of the cases put forward by Defence counsel as demonstrating a range of sentences for crimes similarto that committed by AM are distinguishable in that the focus of the offender in each of these instances was flight, absent any intendedassault.

Here, while the flight was not initially intended to cause serious bodily harm or death, it quickly escalated to be directed towardsthat objective. [139] In written argument, Defence counsel relied heavily on Pratt as a comparator case. In Pratt, a 16-year-old intoxicated offenderstole a vehicle with his friend, Mr. Lagimodiere, to go for a “joy ride”. They stopped at a gas station with the intention of stealing fuel.The attendant, Mr. DePatie, was suspicious of their behaviour so he approached the vehicle.

When the attendant noted that the ignitionof the vehicle had been jimmied, he wrote down the vehicle’s license plate. What happened next was described as follows, at para 12: Twelve dollars worth of gas had been pumped into the car at this point. Mr. Pratt returned to the driver's seat and suddenly andunexpectedly accelerated away from the gas pump while Mr. Lagimodiere remained standing outside the car. Most unfortunately, Mr.DePatie was somewhere nearby and in the path of the LeBaron as it accelerated towards the street. The front right side of the LeBaronstruck Mr. DePatie and knocked him to the ground.

The car ran over him and Mr. DePatie was caught in the undercarriage of the car.Mr. Pratt was aware that he had struck someone, but he continued to accelerate away, dragging Mr. DePatie with him. [emphasis added] [140] Mr. DePatie was dragged under the vehicle for approximately 7.5 kilometers before his body was dislodged. A forensicanalysis concluded that it was the trauma caused by the dragging, as opposed to initially being struck by the vehicle, which caused Mr.DePatie’s death. Mr. Pratt pled guilty to manslaughter. [141] The lower Court determined that Mr. Pratt knew he had struck Mr.

DePatie and knocked him down. However, it concluded thatthere was insufficient evidence upon which to conclude that Mr. Pratt was aware that he was dragging a human being along at highspeeds under his vehicle, although he admitted he may have heard screaming. Shortly after the incident Mr. Pratt stated that he believedthat he may have killed someone by hitting them with his car. [142] The lower Court noted that upon hitting Mr. Depatie and knocking him to the ground, Mr. Pratt did not stop the car. It labelledthis as an aggravating and morally reprehensible act. I noted above that upon dislodging Sgt.

Harnett from the vehicle, AM sped awayfrom the scene, which was further evidence of his recklessness and a dereliction of his duty. As noted above, I similarly classified AM’sactions as aggravating. [143] In Pratt, the Court of Appeal varied the lower Court’s sentence of 9 years less time served credited on a 1.5:1 basis. In so doing,the Court of Appeal found that the lower Court failed to give sufficient consideration to the principles set out by Parliament in s 3 of theYCJA.

This failure resulted in a sentence that was “excessive in all the circumstances and is not consistent with the greater dependencyand reduced maturity of this 16-year-old offender as reflected in the evidence before the Court.”: para 77.

The Court of Appeal alsofound that the lower Court failed to pay adequate attention to the offender’s Indigenous and background factors as mandated in R vGladue, (SCC), [1999] 1 SCR 688. [144] Based on these factors, it reduced the sentence to 7 years and granted credit for the time served on a 1:1 basis. [145] Defence counsel argues that Pratt should be considered a persuasive comparative case because in both instances, both Mr. Prattand AM were simply trying to flee. Counsel stated that Mr. Pratt was not trying to kill the service station employee, just as AM was nottrying to kill Sgt. Harnett.

Defence takes the position that Pratt and K(TD) share similarities in that neither offender was trying to usetheir vehicle as a weapon. Rather, during the course of flight, a harm occurred. The offenders in both Pratt and K(TD) were in the veryearly stages of flight when their vehicles collided with someone. [146] Both AM and Mr. Pratt pleaded guilty to the offence of manslaughter. Mr.

Pratt did so approximately one year following theoffence; AM pleaded guilty on the first day of trial. [147] Defence counsel submits that similarly, AM was simply trying to flee from a situation, in which fleeing presented as the moreattractive alternative to dealing with the emerging situation. Counsel stressed that neither Mr. Pratt nor AM had the intent to kill, but bothengaged in dangerous conduct, being a high-speed flight with an individual attached to the exterior of the vehicle.

[ 148 ] With respect, I find Pratt and this case distinguishable, both in terms of the circumstances of the offence and in terms of the circumstances of the offenders. [ 149 ] In Pratt , the decision to flee was impulsive. Afraid of being reported to police, Mr. Pratt jumped back into the vehicle after obtaining minimal amounts of fuel. Notably, he left his co-offender standing by the gas pump in his haste to escape. As Mr. Pratt drove off toward the street, he side-swiped Mr. Depatie, knocking him down. This was spontaneous and inadvertent.

In comparison, in this case, I found that there was a plan to flee when the officers approached, albeit an unsophisticated one. I found that the flight was not impulsive, but deliberate. [ 150 ] Furthermore, as Mr. Pratt sped off down the street, he was under the impression that the damage had already been done. Unlike AM, the trial judge found that Mr. Pratt was unaware that the risk of serious harm to the victim increased as he carried on with his flight. That is, as far as Mr. Pratt knew, he was not causing further violence to the victim in continuing his flight.

He believed that he had a single, yet possibly deadly, encounter with the victim. [ 151 ] Conversely, after realizing that Sgt. Harnett was attached to the vehicle, AM engaged in multiple encounters with him during the ongoing flight, each designed to dislodge the officer and necessarily cause harm. This, in my view, makes AM’s moral culpability much higher. [ 152 ] I also note the offender in Pratt was just past his 16 th birthday, while AM was 11 days short of being 18. [ 153 ] The Court in Pratt accepted that the offender was remorseful.

In addition, as discussed above, the Court in Pratt noted how a sentence for a youthful offender will not necessarily be “lock step” with that of an adult in similar circumstances, although this distinction may lessen the closer the offender is to the cut-off age under the YCJA : Pratt para 57 . [ 154 ] Additionally, while I do not think that much turns on this distinction, I disagree with Defence counsel that AM was not using his vehicle as a weapon: see Trial Reasons para 311.

Clearly, this situation is to be distinguished from use of a weapon in an aggravating sense, such as when a firearm or knife is used in the commission of an offence. However, in this case, AM combined the use of speed, the execution of several car-specific maneuvers (including opening the car door and ultimately in zig-zagging the vehicle) to dislodge, and necessarily harm, Sgt. Harnett. The vehicle was not incidentally associated with the assault; it made this specific form of assault possible.

That is, the Offender intentionally made use of the vehicle as a part of the mechanism through which ongoing harm was perpetrated upon the victim. In my view, this distinguishes the case at bar from both K(TD) and Pratt . [ 155 ] I turn next to the Crown authorities. It relies on Jiwa as one of its chief comparator cases. [ 156 ] In Jiwa , the 19-year-old offender killed a police officer while fleeing arrest. Mr. Jiwa and a friend were observed stealing airbags from vehicles by police. To resist arrest, Mr. Jiwa got into the driver’s seat of a nearby vehicle when he heard the police officers identify themselves.

He then placed the vehicle into reverse and drove off, an action which caught Det. Plunket in the crease of the open driver’s side door. Det. Plunket was able to maintain his hold on the door as the car reversed across the lawn by raising his legs. However, as the car continued to reverse, the driver’s side door hit a tree and Det. Plunkett was crushed to death. After Det. Plunkett fell from the car, Mr. Jiwa continued to execute a failed escape. Mr. Jiwa maintained that what happened was a tragic accident. A jury convicted him of manslaughter.

Following conviction, the Crown asked for a sentence range between 12-14 years, while the defence asserted that 5-7 year was appropriate. Mr. Jiwa was sentenced to 12 years. [ 157 ] The sentencing judge found that Mr. Jiwa knew he was being arrested by police officers and that he drove the car in reverse to avoid being arrested: Jiwa at para 10. Mr. Jiwa’s dangerous manner of driving, while being fully aware he was dealing with the police, was treated as an aggravating factor: Jiwa at para 44. Other aggravating factors included: (

i) Mr. Jiwa was driving a stolen car at the time of the offence and had spent several prior hours engaged in criminal activity; (ii) Mr. Jiwa was on bail for allegations of airbag theft at the time of the offence; (iii) Mr. Jiwa’s was in violation of his recognizance curfew condition and demonstrated disregard of this underlying court order; (iv) after Cst. Plunkett was crushed, Mr. Jiwa did not stop to come to his aid; (

v) Mr. Jiwa attempted to flee the area on foot after his vehicle was stopped, and only surrendered when it was clear he had no other route to escape; and (vi) Cst. Plunkett’s death had a devastating impact on his family and on his colleagues who were with him that night: para 45. [ 158 ] The sentencing judge also addressed mitigating factors: (

i) Mr. Jiwa was only 19-years-old at the time of the offence; (ii) Mr. Jiwa had no prior criminal record; (iii) he had taken and passed two high school level courses while in custody, which indicated some degree of maturation and potential for rehabilitation; (iv) Mr. Jiwa had strong family and community support from individuals committed to assisting him integrate back into society; (

v) he expressed remorse and apologized to Cst. Plunkett’s family in court; and (vi) the killing of Cst.

Plunkett was an “involuntary” manslaughter, “meaning an unlawful killing not accompanied by the state of mind to constitute it murder”: para 48. [ 159 ] On appeal, the Court confirmed that given the circumstances before the sentencing judge, she did nor err in finding that given the circumstances of the case before her, denunciation and deterrence were of paramount considerations, with rehabilitation being secondary: para 28. [ 160 ] Finally, the Court of Appeal disagreed with defence counsel’s position that the trial judge erred in her application of proportionality by failing to give sufficient weight to the fact that Mr.

Jiwa was a youthful, first-time offender. In upholding the trial judge’s analysis, the Court noted that the offence at issue was extremely serious, and that the victim was a police officer killed in the line of duty while also noting Mr. Jiwa’s prospects for rehabilitation. Both mitigating and aggravating factors were considered. [ 161 ] While there was no guilty plea in Jiwa , this does not, in my view, discount it as a valuable decision for the purposes of determining sentencing parity.

In Jiwa , despite the preliminary enquiry findings ( 2010 ONSC 1636 ) the Court did not expressly find that the offender intended to cause bodily harm. I came to the opposite conclusion in my Trial Reasons, where I found that AM intended to cause Sgt Harnett bodily harm: Trial Reasons para 244. In Jiwa , the sentencing Court referred to Mr. Jiwa’s crushing of Cst. Plunkett against a tree in his attempt to escape as

an act of “involuntary” manslaughter: Jiwa para 48. Indeed, neither the Trial Court nor the Court

of Appeal concluded that Mr. Jiwa intended to hit a tree as he reversed across the lawn. Both Courts merely state that this is what in fact occurred as he drove off in a dangerous manner to resist arre

[…]