R v Roberts, 2023 ABKB 336

Court of King’s Bench of Alberta Citation: R v Roberts, 2023 ABKB 336 Date: 20230602 Docket: 210374583Q1 Registry: Calgary Between: His Majesty the King - and - Jesse Lane Roberts _______________________________________________________ Sentencing Judgment of the Honourable Justice R.W. Armstrong _______________________________________________________ This Sentencing Judgment was delivered orally on June 2, 2023. Introduction [ 1 ] On November 22, 2022, Mr. Roberts was convicted of three offences following a trial by judge and jury: 1. Count 3 on the Indictment: Dangerous operation of a conveyance causing bodily harm contrary to

section 320.13(2) of the Criminal Code . 2. Count 4 on the Indictment: Aggravated assault with a weapon contrary to section 268(1) of the Criminal Code . 3. Count 5 on the Indictment: Assault with a weapon contrary to

section 267 (

a) of the Criminal Code . [ 2 ] Following the convictions, the matter was adjourned to allow for the preparation of pre-sentence reports. On May 10, 2023, I heard submissions on behalf of the Crown and on behalf of Mr. Roberts regarding an appropriate sentence for Mr. Roberts. This is my

sentencing decision. Circumstances of the Offence [ 3 ] The circumstances of the offence were described in the findings of fact delivered on November 23, 2022. [ 4 ] On July 29, 2020, Benjamin Parnell and his common law wife, Shayla Vizbara, were swimming in an irrigation canal located approximately ½ mile from the property that they rented located at 244002 Township Road 250 in Wheatland County, Alberta. While they were swimming, Mr. Roberts and his then girlfriend, Justicte-Rose Eddy, approached the irrigation canal on a 4-wheel all- terrain vehicle. Mr. Roberts asked Mr. Parnell and Ms.

Vizbara if they had seen his cat. [ 5 ] Ms. Vizbara responded to Mr. Roberts by making a vulgar and derogatory comment about Ms. Eddy. Mr. Roberts called Mr. Parnell and Ms. Vizbara “goofs” and he drove away on the ATV with Ms. Eddy. Mr. Roberts drove back to his home, located on property owned by his parents, adjacent to the west side of the Parnell/Vizbara property. [ 6 ] Mr. Parnell and Ms. Vizbara left the irrigation canal and walked home. They changed out of their swimwear and were preparing to relax at home when Mr. Roberts drove by in a blue Chevrolet Duramax Diesel pickup truck and honked his horn. Ms.

Eddy was in the passenger seat. [ 7 ] Upon hearing the honking, Ms. Vizbara exited her residence and walked to the edge of the property along Range Road 244. Mr. Roberts and Ms. Eddy were north of the Parnell/Vizbara property when they realized they had forgotten their cell phones at home. They turned around and as they were driving back south along Range Road 244, they encountered Ms. Vizbara who had walked out onto the road. [ 8 ] Ms. Vizbara shouted at Mr. Roberts and Ms. Eddy “do you want to start something? Let’s start it,” or words to that effect. Mr.

Roberts stopped the truck just south of the entrance to the equipment yard on the Parnell/Vizbara property. Ms. Vizbara continued shouting and she made offensive and derogatory statements about Mr. Roberts. [ 9 ] Ms. Eddy got out of the passenger side of the truck and she and Ms. Vizbara started to fight. Ms. Eddy slapped and kicked Ms. Vizbara, and Ms. Vizbara pulled Ms. Eddy’s hair. As they grappled with each other, they entered the equipment yard on the Parnell/Vizbara property. [ 10 ] As Ms. Eddy and Ms. Vizbara fought, Mr. Roberts fired two warning shots from his .22 caliber rifle into the air.

The fight stopped. Mr. Roberts backed his truck up and turned into the equipment yard on the Parnell/Vizbara property. Mr. Roberts stopped the truck facing west and Ms. Eddy got into the passenger side seat. Ms. Vizbara continued to shout insults at Mr. Roberts. Ms. Eddy told Mr. Roberts they should just go. [ 11 ] Despite Ms. Eddy’s request that they just leave, Mr. Roberts drove the truck directly at Ms. Vizbara, accelerating quickly. After Mr. Roberts hit the gas, Ms. Eddy said “please don’t, please stop” to Mr. Roberts, or words to that effect, but Mr. Roberts did not stop.

He drove towards and intentionally struck Ms. Vizbara with his vehicle. [ 12 ] The front passenger side of the truck struck Ms. Vizbara. She was knocked down and the front passenger side tire of the truck drove over her hip and pelvic area. The truck then hit a baler truck and came to an abrupt stop with its front end wedged under the baler. [ 13 ] Mr. Parnell heard the warning shots fired by Mr. Roberts and he ran from his backyard towards the equipment yard. As he approached the tree line between the back yard and the equipment yard, he saw Mr. Roberts strike Ms. Vizbara with the truck. Mr. Roberts and Mr.

Parnell had an altercation at the window of the truck after which Mr. Parnell retreated from the area. [ 14 ] After Mr. Parnell left the vicinity of the truck, Mr. Roberts got out of the truck and walked over to where Ms. Vizbara was lying on the ground, injured. He carried the .22 rifle with him. When he reached Ms. Vizbara, he placed both hands on the rifle and forcefully drove the butt or stock end of the rifle downward, into Ms. Vizbara’s face. [ 15 ] After striking Ms. Vizbara in the face with his rifle, Mr.

Roberts left the area and walked back to his residence where the RCMP eventually apprehended him. [ 16 ] When the truck struck Ms. Vizbara and Mr. Roberts assaulted her, she suffered the following injuries:

i) Multiple facial bone fractures, predominantly in the nasal area; ii) Fractured pelvis involving the bilateral inferior and superior pubic rami as well as a right sacral fracture; iii) Right distal radius fracture; and iv) Grade 2 acromioclavicular (shoulder) dislocation. [ 17 ] Ms. Vizbara received physiotherapy for her shoulder. She continues to suffer from pain in her hips daily. Circumstances of the Offender [ 18 ] Mr. Roberts is 26 years old. He resides with his parents, Ron and Cecile Roberts, on an acreage near Strathmore, Alberta. Mr. Roberts’s parents adopted him when he was about 3 months old. While he has met his biological parents, they did not play any

significant role in his upbringing. Mr. Roberts is currently single. He has had relationships in the past and has a son from one of those relationships. Mr. Roberts has bi-weekly parenting time with his son. [ 19 ] Mr. Roberts attended high school to grade 12; however, he struggled academically and socially throughout his school years. By grade 6 he was identified as having severe emotional and behavioural disabilities and a severe intellectual disability. Mr. Roberts also suffers from ADHD. [ 20 ] Due to his intellectual disabilities, in grade 7 Mr.

Roberts was placed into special programming for students with developmental delays and he continued with that programming through to the completion of grade 12. As reported by Kelly DeCoste, a registered psychologist with the Golden Hills School Division, the focus of the program that Mr. Roberts attended was “... to develop functional academic and adaptive function skills to increase students’ independence in preparation for their transition to adulthood.” [ 21 ] After completing high school in 2015, Mr. Roberts worked sporadically for his father’s business until that business was sold in 2020. According to Mr.

Roberts’s father, Mr. Roberts requires supervision and support in the workplace and his opportunities for employment are therefore limited. Mr. Roberts’s parents remain very supportive of him and are seeking the assistance of a social worker for Mr. Roberts to help him find suitable employment and become more independent. In the meantime, Mr. Roberts’s primary income is from the Assured Income for the Severely Handicapped (AISH). [ 22 ] Mr. Roberts has a limited social life, although he does maintain a small group of friends who are supportive of him.

Prior to his arrest, he enjoyed activities such as hunting and quadding although he has not been able to partake in those activities since his arrest due to his strict bail conditions. Mr. Roberts does not use alcohol regularly, enjoying only an occasional social drink but he is a frequent user of marijuana. While Mr. Roberts does not have a prescription for marijuana, he is of the view that the drug helps him with some of his hyperactive tendencies and his ADHD. Pre-Sentence Reports [ 23 ] Counsel provided two pre-sentence reports to the court prior to the sentencing hearing. [ 24 ] Dr.

Magued Yacoub, the Medical Director at FAOS and a specialist in forensic psychiatry, assessed Mr. Roberts on March 13 and March 15, 2023, at Alberta Health’s Forensic Assessment and Outpatient Services (“FAOS”). The assessments formed the basis of the pre-sentence report prepared by Dr Yacoub dated March 18, 2023. [ 25 ] Dr. Yacoub’s report sets out Mr. Roberts’s personal history including his family background, educational and employment history. Dr. Yacoub conducted a mental status examination and reviewed Mr. Roberts’s available health records. Significant findings from Dr.

Yacoub’s report include the following: • Mr. Roberts presented with ADHD and neurodevelopmental disorder, likely intellectual disability. • Mr. Roberts has a history of cannabis use disorder, in reported remission. The long history of cannabis use disorder has likely resulted in Mr. Roberts experiencing some paranoia. • There is a high possibility that Mr. Roberts is experiencing paranoia regarding Ms. Vizbara and Mr. Parnell. • Mr. Roberts struggles with reasoning and problem-solving, planning, judgment, academic learning and learning from experience.

He has serious anger issues and difficulty expressing himself in a healthy way. • Mr. Roberts does not take responsibility for his actions that resulted in his conviction. He maintains that his ex-girlfriend pressed the accelerator on the truck causing it to strike Ms. Vizbara and that she struck Ms. Vizbara in the face. • Mr. Roberts has a low to moderate risk of recidivism. [ 26 ] In addition to Dr. Yacoub’s pre-sentence report, probation officer Mara Lee Duff prepared a second pre-sentence report dated March 20, 2023. Like Dr. Yacoub, Ms. Duff reviewed Mr.

Roberts’s family relationships, living arrangements, education, and employment history. She noted that Mr. Roberts suffers from ongoing problem solving and impulse control deficits which require further intervention and education. [ 27 ] Ms. Duff reviewed the circumstances of the offences committed with Mr. Roberts. She described Mr. Roberts’s reaction as follows: In reviewing the Findings of Fact, the subject [Mr. Roberts] acknowledged responsibility for his actions, and suggested they were an impulsive reaction. He expressed his remorse throughout the interview process, however, displayed minimal empathy.

Roberts believed all parties involved were negatively affected by the events of that day, but his thoughts were primarily self-centered and frequently focused on his own personal experience. [ 28 ] At the conclusion of her report, Ms. Duff set out a list of 12 conditions for the court’s consideration if Mr. Roberts’s sentence were to include community supervision. Those conditions include assessment and treatment by Forensic Assessment Outpatient Services, abstinence from alcohol and drugs, including cannabis, as well as weapons and driving prohibitions.

Crown’s Position [ 29 ] The Crown argues that an appropriate sentence for Mr. Roberts is 4 years in prison. The Crown points to the fact that the

offences of operating a conveyance in a dangerous manner causing bodily harm and aggravated assault can both attract a prison sentence of up to 14 years and a conviction for assault with a weapon can attract a sentence of up to 10 years in prison. [ 30 ] According to the Crown, the principles of denunciation and deterrence ought to be the primary consideration in arriving at an appropriate sentence for Mr. Roberts.

A significant period of incarceration is required to send a message to the accused, and to society in general, that using a motor vehicle to commit an assault and seriously injure someone will attract a significant penalty. [ 31 ] The Crown also points to several aggravating factors which it argues weigh in favor of a significant period of incarceration. The aggravating factors identified by the Crown include the deliberate nature of the assault with the truck and the rifle stock, the fact that deadly weapons (the truck and the .22 calibre rifle) were used in the commission of the crimes, the seriousness of Ms.

Vizbara’s injuries, indicia of planning and premeditation and an absence of remorse from Mr. Roberts. [ 32 ] Based on these factors, the Crown submits that an appropriate sentence should consist of 3.5 years incarceration for the aggravated assault, 2 years incarceration for the operation of a conveyance in a dangerous manner causing bodily harm, to be served concurrently with the sentence for the aggravated assault and 6 months of incarceration for the assault with a weapon, to be served consecutively to the other terms of incarceration. Defence’s Position [ 33 ] Counsel for Mr.

Roberts suggests that a community-based disposition followed by a lengthy period of probation is an appropriate sentence. The Defence relies on Mr. Roberts’s personal characteristics, suggesting that Mr. Roberts’s reduced intellectual capacity diminishes his moral culpability. [ 34 ] According to the Defence, a community-based sentence can fulfill the goals of sentencing given Mr. Roberts’s unique circumstances. In particular, the Defence suggests that Mr. Roberts does not pose a risk to the public if he serves his sentence in the community.

He has been subject to stringent bail conditions since the time of his arrest and there have been no violations of those strict conditions. Furthermore, the Defence suggests that Mr. Roberts is a good candidate for rehabilitation and that his best opportunity for rehabilitation will be in the community. [ 35 ] The Defence raises several mitigating factors which it argues ought to weigh against a lengthy period of incarceration and in favor of a community-based disposition. These mitigating factors include that Mr. Roberts has no prior criminal record, that the offences were not planned, that Mr.

Roberts was not on judicial interim release at the time of the offences and that Mr. Roberts suffers from cognitive deficits. Counsel for Mr. Robert’s submits that Mr. Roberts has, in fact, expressed remorse for his actions, to the extent that he is able. [ 36 ] Based on all the factors, Counsel for Mr. Roberts submits that an appropriate sentence ought to consist of concurrent conditional sentences of 2 years less a day for each of the dangerous operation of a conveyance causing bodily harm and aggravated assault and a concurrent conditional sentence of 6 months for the assault with a weapon.

Finally, a period of 24 months of probation should follow the completion of the conditional sentences. Sentencing Principles [ 37 ] The purpose and principles of sentencing are set out in s 718 of the Criminal Code of Canada . It states: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) To denounce unlawful conduct 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 acknowledgement of the harm done to victims or to the community. [ 38 ]

Section 718.1 of the Criminal Code of Canada mandates that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

Section 718.2 sets out a series of factors that a court must consider when imposing a sentence on an offender: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ... ...

(

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to thevictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [39] As set out in s 718.1, proportionality of a sentence to the gravity of an offence and the degree of responsibility of an offenderis essential.

The Court of Appeal of Alberta re-iterated the importance of proportionality in sentencing in R v Arcand, 2010 ABCA 363at para 54: Finally, proportionality is what makes the blunt tool of punishment a valid and itself morally acceptable element of social order.

Withoutproportionality as the governing sentencing principle, sentencing would be either the arbitrary application of state power or an ineffectiveresponse to criminal conduct. [40] Taken together, the sentencing provisions in the Criminal Code demand that a sentence imposed on an offender reflects thegravity of the offence committed with due regard to the circumstances of the offender and the relevant aggravating and mitigatingfactors. There must also be parity between the sentence imposed and sentences imposed on similar offenders for similar offences insimilar circumstances.

Aggravating and Mitigating Factors [41] When considering aggravating and mitigating circumstances, both the circumstances of the offence and the circumstances ofthe offender must be considered: Arcand, supra at para 60. [42] The aggravating factors, all of which have been proven beyond a reasonable doubt are: • Ms. Vizbara was on her own property and presented no threat when Mr. Roberts drove his truck directly at her atmaximum acceleration; • Ms. Vizbara suffered significant injuries, including a broken pelvis, a sacral fracture, a broken arm, and a dislocatedshoulder, when Mr.

Roberts struck her with his truck. • Mr. Roberts used a firearm to assault Ms. Vizbara while she was lying on the ground injured. He struck her in the facecausing multiple facial bone fractures. • After committing the assault and injuring Ms. Vizbara, Mr. Roberts offered no assistance and left the scene to walk home. [43] The mitigating factors are: • Mr. Roberts comes before the court with no criminal record. • Mr. Roberts suffers from cognitive impairment and ADHD. • Mr. Roberts has a strong relationship with his parents who are very supportive of him. [44] Defence Counsel suggests that Mr.

Roberts has expressed remorse and that ought to be considered a mitigating factor. Theinformation before the court regarding remorse is equivocal. In the Pre-Sentence Report prepared by Ms. Duff, she notes that Mr.Roberts “...expressed his remorse throughout the interview process, however, displayed minimal empathy.” Her finding is contrary to thefindings of Dr. Yacoub. [45] Dr. Yacoub reports that Mr. Roberts alleged his ex-girlfriend was the one who struck Ms. Vizbara in the face with his rifle.Mr.

Roberts asserted that “...my ex threw me under the bus and saved herself.” This assertion is wholly inconsistent with the verdictrendered by the jury. Later in his report, Dr. Yacoub states: Although Mr. Roberts was found guilty, the author noticed that he is still not taking full responsibility for his actions and is still blaminghis ex-girlfriend for leaning over and pressing the accelerator, and for assaulting the female Victim, as previously mentioned before. [46] Given Mr.

Roberts’s attempts to minimize responsibility for his actions, I am unable to find on balance that that there is anexpression of remorse sufficient to constitute a mitigating factor. The Kienapple Principle [47] Mr. Roberts was convicted on multiple charges, two of which relate to him striking Ms. Vizbara with his vehicle. Pursuant tothe decision of the Supreme Court of Canada in R v Kienapple, (SCC), [1975] 1 SCR 729, multiple convictions cannotarise from a single criminal act.

For the Kienapple principle to apply, there must be a common factual basis underpinning the offencesand the legal elements of the offences in question must be substantially the same: R v Prince, (SCC), [1986] 2 SCR 480

at paras 31-34 . [ 48 ] The application of Kienapple in cases involving a charge of dangerous operation of a conveyance and a charge of assault or aggravated assault with a weapon, where a vehicle was the weapon, has been considered by various courts across Canada. [ 49 ] In R v Loveys , 2020 NLSC 13 , the Supreme Court of Newfoundland and Labrador General Division considered the issue in relation to charges of aggravated assault involving a vehicle and dangerous driving causing bodily harm.

At para 13 of the decision, the court characterized the question before it as follows: In this matter, the offences of aggravated assault and dangerous driving causing bodily harm do indeed arise from the same factual circumstance. This factual circumstance was that Mr. Loveys drove his car and deliberately struck Ms. Harris and Mr. Mixer, thereby causing them harm.

The issue is whether there is a sufficient legal nexus between the offences to support application of the Kienapple principle. [ 50 ] Later, at para 20 the court in Loveys concluded: In my view, the elements of the offence of dangerous driving causing bodily harm are sufficiently distinct from the elements of the offence of aggravated assault. More specifically, the manner of driving is the core of the offence of dangerous driving; whereas intentional application of force without consent is the core of the offence of aggravated assault.

I agree with the Crown’s submissions that there is not a sufficient legal proximity between these two offences. A similar finding was made in R. v.

Brown , 2017 ABPC 154 . [ 51 ] The same result was reached in R v Munden , 2021 BCPC 292 where the BC Provincial Court applied the reasoning in Loveys and concluded that the substantial difference between the mental elements of the offence assault with a weapon and the offence of dangerous driving causing bodily harm precludes the application of the Kienapple principle. [ 52 ] In R v Clarke , 2006 NLTD 72 and in R v Phillips , 2009 ONSC 2922, the courts reached different conclusions.

In Clark , the court stayed the charge of dangerous operation of a motor vehicle causing bodily harm because it arose from the same facts upon which the accused was convicted of aggravated assault. In coming to its decision, the court did not make explicit reference to the Kienapple decision, nor did the reasons for decision contain any analysis of the elements of the two offences. Similarly in Phillips , the court stayed a dangerous driving conviction and sentenced the offender only on the aggravated assault conviction.

Again, the decision did not contain any discussion of the similarities or differences in the elements of the two offences. [ 53 ] I accept the reasoning and approach set out in the decisions of Loveys , Brown and Munden . Resolving the issue must involve an examination of the elements of each offence. A conviction for dangerous driving requires the Crown to prove, beyond a reasonable doubt, that the accused drove in such a way that it was a marked departure from what a reasonable, prudent driver would do in the same circumstances.

A conviction for aggravated assault requires the Crown to prove that the accused intentionally applied force to the victim without the victim’s consent. These are distinct legal elements unique to each offence. The elements of proof required for the two offences are not substantially similar enough to engage the Kienapple principle and I decline to do so. Sentencing Ranges [ 54 ] Mr. Roberts is to be sentenced for three unique offences.

His counsel submits, and I agree, that when sentencing for multiple offences, the preferred approach is to first determine a fit sentence for each of the individual offences and then decide if the sentences ought to be served concurrently or consecutively. If consecutive sentences are imposed in respect of any of the offences, the cumulative, global sentence must be assessed to ensure it is not too long or unduly harsh.

Finally, if an adjustment to the overall sentence is required, the preferred approach is to impose concurrent sentences rather than consecutive sentences to reduce the overall length of the sentence: R v Smith , 2019 SKCA 100 at paras 149-154 . In applying this approach to sentencing, the primary or overarching object must be to arrive at a global sentence that is proportionate to the gravity of the offences and the degree of responsibility of the offender. [ 55 ] Counsel for Mr. Roberts refers to the following authorities as instructive in determining an appropriate sentence for the offences committed by Mr.

Roberts: R v Ahier , 2006 ONCJ 135 in which a first-time offender pleaded guilty to aggravated assault. The offender, who was intoxicated, used a stick and a hammer to strike the victim over the head. The court imposed a conditional sentence of two years less a day, followed by three years of probation. R v Garnham , 2008 BCPC 85 involves an offender who pleaded guilty to aggravated assault. The offender stabbed the victim in the abdomen causing serious and lasting injuries.

At para 41 of the decision, the sentencing judge noted that the range of sentences for such offences is broad, from a low of 16 months imprisonment up to a high of 6 years imprisonment. The trial judge noted the offences at the lower end typically involved fights in which escalation occurs resulting in injuries whereas the sentences at the higher end of the range involve situations where the victim is attacked with a weapon without provocation. The offender in Garnham had no prior record.

The sentencing judge imposed a two-year conditional sentence followed by three years of probation and 50 hours of community service. R v Stone , 2001 BCCA 728 is a case where a car was used as a weapon to injure a pedestrian. The offender was sentenced to 2 years incarceration. On appeal the sentence was reduced to a 22-month conditional sentence. In reducing the sentence, the Court of Appeal noted that the pedestrian victim was a nearly equal participant in the events and that the act of hitting the pedestrian was impetuous rather than deliberate.

The Court of Appeal also noted that the offender was subject to significant civil consequences that ought to be accounted for in assessing the overall sentence imposed. R v Zimmer , 2004 ABPC 169 involves guilty pleas to aggravated assault and assault with a weapon. The offender stabbed a bouncer at a hotel bar. Mitigating factors noted by the sentencing judge included that the offender acknowledged his responsibility for the offence and entered a reasonably early guilty plea. A two-year conditional sentence was imposed together with 100 hours of community service.

R v Moozhayil, 2004 BCSC 976 involves an offender who, having been asked to leave a social gathering, returned to the gathering, andstabbed the victim. The offender pleaded guilty to aggravated assault. The offender was given a conditional sentence of two years, less aday. Particular circumstances of the offender that weighed in favor of him serving his sentence in the community included that he was inpoor health, suffered disabilities and that he had two small children.

R v Herzog, 2004 MBCA 193 is a case involving a fight between a small-time drug dealer and an individual who owed him money.After being confronted about his drug debt, the offender went to the dealer’s home and beat him with a dumbbell. In determining that theoffender ought to be permitted to serve his sentence in the community, the Court of Appeal noted the steps the offender took to improvehis situation while he was on bail. He ended his dependency on alcohol and drugs, became steadily employed and was in a stablerelationship.

Given the actions of the offender, the Court of Appeal noted that the prospects for full rehabilitation would be enhanced ifthe offender served his sentence in the community. R v Johnson, [2005] OJ No 1762 (ONSC) involves an offender who pleaded guilty to aggravated assault and assault causing bodilyharm. An initial skirmish occurred between the offender and the two victims; however, no one was seriously injured in that initialencounter. After it ended, the offender went and got a golf club, found the victims, and assaulted them.

The fact that the offender wentand located the victims after the initial skirmish had ended was considered a serious aggravating circumstance. Mitigating factorsreferred to by the sentencing judge included a very positive pre-sentence report and the fact that the offender took full responsibility forthe offence and entered a guilty plea. [56] A distinguishing feature in most of the cases referred to on behalf of Mr. Roberts is that early guilty pleas were entered. Aguilty plea is a significant mitigating factor when sentences are imposed.

Aside from not putting the victims through the stress and ordealof a trial, a guilty plea demonstrates acceptance of responsibility for one’s actions. That mitigating factor is absent in this case. [57] In support of its position on sentencing, the Crown relies on several authorities including R v Wright, 2003 ABQB 557. InWright, the offender pleaded guilty to dangerous driving causing bodily harm, failing to stop at the scene of an accident and assault. Theoffender used his vehicle as a weapon and inflicted serious injuries to the victim’s back, hips, pelvis, and groin.

The offender entered aguilty plea, and he was sentenced to 2 years’ incarceration for dangerous driving causing bodily harm, 6 months concurrent for leavingthe scene of the accident and 14 days concurrent for the assault. [58] In R v Balcha, (ON CA), [2004] O.J. No. 1217 (OntCA), the offender was convicted of dangerous drivingcausing bodily harm and failing to stop at the scene of an accident. The offender was hit in the head in an unprovoked attack. In responsehe got into his truck and drove at the person who hit him and his friends.

He struck the victim, knocked him down and then backed overhim causing serious injuries to the victim. The sentencing judge imposed a custodial sentence of 2 years less a day for dangerous drivingcausing bodily harm and 1 year concurrent for failing to remain at the scene of the accident. The sentence was upheld by the Court ofAppeal although the 5-year driving prohibition was reduced to 1-year. [59] Other cases relied on by the Crown include R v Dingwall, [1994] NSJ No 188 (NSSC) which involved a sentence ofimprisonment for two years less a day for a conviction of dangerous driving.

The conviction resulted from the offender deliberatelyrunning down the victim resulting in a serious leg injury. In R v Gosh, 2006 ABPC 153 the offender was in his 20s with no criminalrecord. He pleaded guilty to dangerous driving and assault with a weapon. The sentencing judge imposed a global sentence of 30 monthsincarceration noting that the offender injured three people, one of them seriously. [60] In R v Berto, 2018 ONSC 6747, which was not referred to by the Crown or the Defence, the offender was found guilty ofdangerous driving causing bodily harm and leaving the scene of an accident.

The offender got into a fight outside a bar. A group gatheredaround, and the offender got into his truck and deliberately drove his vehicle towards the group, striking and injuring one of them. He leftthe scene. The offender was 18 years old at the time of the offence with no criminal record. He accepted responsibility for the offenceand was remorseful. The sentencing judge found his moral culpability was high and incarceration was necessary.

A custodial sentence of18 months was imposed for the dangerous driving causing bodily harm charge plus six months consecutive for leaving the scene. [61] A review of the cases relied on by the Crown and the Defence as well as other relevant cases involving similar offences,similar offenders and similar circumstances suggests a global sentence in the range of 18 to 30 months would be appropriate.

Applying the Sentencing Principles [62] Bearing in mind once again the fundamental principle that the sentence imposed must be proportionate to the gravity of theoffence and the offender’s degree of responsibility, I note that the offences committed by Mr. Roberts are very serious. He used his truckas a weapon to run down an unarmed woman on her property. After running Ms. Vizbara down, Mr. Roberts got out of his truck, walkedover to her where she was lying, injured, on the ground and he drove the butt end of his rifle into her face. This was a particularly viciousattack, aggravated by the fact that Ms.

Vizbara was already on the ground seriously injured when Mr. Roberts committed the assault. Hethen walked away from the scene. [63] While there was some provocation by way of verbal taunting, Mr. Roberts’s reaction was wildly disproportionate to that typeof provocation. The victim suffered multiple, serious injuries that have had long term effects. Mr. Roberts has not fully acceptedresponsibility for the crimes he committed. He continues to blame his ex-girlfriend for his actions. The gravity of the offences weighs infavor of a sentence towards the higher end of the established range, [64] Counsel for Mr.

Roberts argued strenuously that Mr. Roberts’s cognitive impairments, evidenced in part by his poor academicperformance and his inability to be gainfully employed, ought to reduce his moral culpability in relation to the offences he committed. [65]

Section 718.2(

a) of the Criminal Code calls for the increase or decrease of a sentence based on relevant aggravating ormitigating factors, which includes the extent to which an offender’s cognitive disabilities diminish their moral culpability: R v Ramsay,2012 ABCA 257 at para 19. A more recent review of the sentencing considerations for offenders with cognitive disabilities can be found

in R v Storey, 2021 ONSC 1760 at paras 47–49: Canadian courts have for a long time recognized that in some cases an accused’s moral blameworthiness is reduced for the purposes ofsentencing by virtue of a recognized and diagnosed intellectual disability. As is the case with most aspects of sentencing the assessmentof the impact of an individual’s intellectual disability is a fact-specific exercise and not an automatic rule: see Friesen at para 23. Alsosee R. v. Manitowabi, 2014 ONCA 301at paras 55-57 and R. v. Ellis, 2013 ONCA 739at paras 107-127.

Canadian courts have also cautioned sentencing judges dealing with this issue about committing one of two potential errors, each ofwhich is the flip side of the other. The first such error occurs when a judge is indifferent to the question of whether the offender’sintellectual disability has reduced his moral blameworthiness. The second such error is the reverse of that, namely assuming anoffender’s moral blameworthiness for an offence is reduced automatically by virtue of the intellectual disability: see R. v. Okemow 2017MBCA 59 , [2017] M.J. No.173 at para 73.

In its decision in Okemow the Manitoba Court of Appeal suggests a series of 3 questions that a sentencing judge might wish to considerwhen sentencing offenders with some form of intellectual disability. It is a sensible approach. Those questions are as follows:

(1) Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation?

(2) Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can bemade as to the relationship, if any, between those circumstances and the criminal conduct?

(3) Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence takinginto account whether and, if so, to what degree, his or her mental illness or cognitive limitation played a role in the criminal conduct. R v. Okemow, para 73. [66] In the present case, there is evidence that Mr. Roberts suffers from cognitive limitations. His academic performance and hisemployment history are indicative of such limitations and the pre-sentence reports prepared by Dr. Yacoub and Ms. Duff dealextensively with his cognitive deficits. Dr. Yacoub reports that Mr.

Roberts’s “...untreated ADHD and his learning difficulties likelycontributed to experiencing deficits in his adaptive functioning and social participation and independent living, as well has impacted hiseducation and academic performance, and possibly impacted his understanding of social cues.” Based on the information before me, Ifind that Mr. Roberts does suffer from a recognized cognitive limitation. [67] With respect to the second question, what is absent from the reports of Dr. Yacoub and Ms. Duff is any suggestion that Mr.Roberts’s cognitive limitations affect his moral culpability.

In other words, the information before me does not suggest a relationshipbetween Mr. Roberts’s ADHD and learning difficulties and the criminal conduct in which he was engaged. To the contrary, Dr. Yacoubseems to suggest in his report that Mr. Roberts can take responsibility for his actions although he has not yet done so. [68] The Ramsay case is instructive when it comes to the third question. At paras 22-24, the Alberta Court of Appeal discussed therelationship between cognitive disabilities and the sentencing principles of denunciation and deterrence.

Generally, the importance ofspecific deterrence in sentencing persons with cognitive disabilities decreases proportionate to the severity of the cognitive disability.Likewise, the importance of general deterrence and denunciation will be diminished “[w]here the cognitive deficits experienced by theoffender significantly undermine the capacity to restrain urges and impulses, to appreciate that his acts were morally wrong, and tocomprehend the causal link between the punishment imposed by the court and the crime for which he has been convicted.” [69] In Mr.

Roberts’s case, I am not satisfied that his cognitive disabilities prevent him from understanding that his actions werewrong nor are they of a nature that would prevent him from understanding the causal link between his actions and the punishmentimposed on him.

While I consider his cognitive deficits to be a mitigating circumstance in that they have caused him to have a difficultlife, suffer from bullying and deprived him of opportunities, I stop short of finding that his deficits were causally related to his actions onJuly 29, 2020 or that they prevent him from understanding the gravity of his actions or from understanding the basis for the punishmentimposed on him. Accordingly, the principles of deterrence and denunciation remain significant consideration in crafting an appropriatesentence for Mr. Roberts. [70] Mr. Roberts, please stand.

Considering all the circumstances of this case, including the principles of sentencing set out in theCriminal Code and the aggravating and mitigating factors set out above, the victim impact statements received as well as taking intoaccount the time spent in pre-trial custody, I impose the following sentence in respect of each charge: Count 3: Dangerous operation of a conveyance causing bodily harm contrary to

section 320.13(2) of the Criminal Code, I sentence you toa period of incarceration of 16 months. Count 4: Aggravated assault with a weapon contrary to section 268(1) of the Criminal Code, I sentence you to a period of incarcerationof 18 months. The sentence on count 3 will be served concurrently with the sentence on count 4 as I am satisfied that the offences arise out of the singleact of accelerating towards Ms. Vizbara with the truck, knocking her down and injuring her. Count 5: Assault with a weapon contrary to

section 267(

a) of the Criminal Code. I sentence you to a period of incarceration of 6 months. The sentence on count 5 shall be served consecutively to the sentences on counts 3 and 4. Count 5 represents a distinct and separate acton the part of Mr. Roberts and one that demonstrates particular viciousness given the helpless state Ms. Vizbara was in when the assaultwas committed.

[ 71 ] The resulting global sentence is 24 months of incarceration. I have considered the effect of imposing a consecutive sentence and am satisfied that the global sentence is not too long or unduly harsh. It is consistent with sentences imposed for similar offences and similar offenders in similar circumstances. [ 72 ] Additionally, pursuant to s 731(1)(

b) of the Criminal Code I order that following the completion of your custodial sentence, you shall comply with the terms of a probation order for a term of 12 months. The terms of the probation order shall be: (

a) You shall keep the peace and be of good behaviour; (

b) You must appear before the court when required to do so; (

c) You shall report to a probation officer at Strathmore Community Corrections, or as otherwise directed, within 2 business days after the completion of your custodial sentence. After that, you must report as directed by your probation officer. (

d) You must notify the Court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation; (

e) You must have no contact, directly or indirectly, with Benjamin Parnell or Shayla Vizbara; (

f) You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. (

g) You must not possess or consume alcohol, illegal drugs, intoxicating substances, marijuana, or any other drugs except with a prescription from a medical doctor; (

h) You must not carry or have in your possession any weapons or imitation weapons outside your residence except for required work tools while on a job site or utensils used for preparing or consuming food; (

i) You must not possess a firearm, crossbow, prohibited weapon, ammunition or an explosive substance; and (

j) You must not occupy the driver’s seat of any motor vehicle. [ 73 ] The following ancillary orders are also granted: mandatory provision of DNA sample and

section 109 firearm prohibition for a period 10 years. There shall be a driving prohibition for a period of 2 years plus the entire period for which you are incarcerated. [ 74 ] Mr. Roberts you may be seated. [ 75 ] Prior to imposing this sentence, I carefully considered the Defence’s submissions that a conditional sentence would be appropriate in the circumstances of this case. Given the total term of incarceration is 2 years, a conditional sentence is not available pursuant to s 742.1 of the Criminal Code .

A conditional sentence is only available when the court imposes a sentence of imprisonment of less than two years. [ 76 ] Having said that, recognizing that a non-custodial sentence should always be considered where appropriate, I have considered whether the fundamental purposes and principles of sentencing could be achieved by a slightly reduced sentence served in the community.

In the circumstances of this case and taking into account the circumstances of this particular offender, I am not satisfied that the fundamental purpose and principles of sentencing are achievable with a conditional sentence. [ 77 ] Given the violent nature of the offences committed by Mr. Roberts, denunciation and deterrence are significant factors. While in some cases, denunciation and deterrence may be achieved through a conditional sentence, in my view that requires some acceptance of responsibility and insight into the actions of the offender that is simply lacking here. While I am satisfied that Mr.

Roberts is able to take responsibility for his actions, I am not satisfied that he has done so. A period of incarceration will have the most significant deterrent effect on Mr. Roberts and help to ensure that he does not commit crimes of violence in the future. That deterrent effect will not be achieved in Mr. Roberts’s case by simply continuing to have him live in his parents’ home as he has done so all his life. [ 78 ] With respect to Mr. Roberts’s prospects for rehabilitation, I am satisfied the period of incarceration followed by a probationary period will best serve the goal of rehabilitation. Mr.

Roberts will have access to programing and education while incarcerated and the period of probation following his release will allow him to continue any programming or access additional supports under the guidance of his probation officer following his period of incarceration. [ 79 ] Are there any further issues counsel wish to raise (forfeiture?) Heard on the 10 th day of May, 2023. Delivered orally on the 2 nd day of June, 2023 Dated at the City of Calgary, Alberta this 2 nd day of June, 2023.

R.W. Armstrong J.C.K.B.A. Appearances: James Sawa Alberta Justice for the Crown Devlin Gavigan The Fagans Barristers for Mr. Roberts