R v McNallie, 2023 ABCJ 254

In the Alberta Court of Justice Citation: R v McNallie, 2023 ABCJ 254 Date: 20231204 Docket: 210850970P1 Registry: Calgary In the Matter of R v McNallie Between: His Majesty the King - and - Taylor Michelle McNallie Sentencing Decision of the Honourable Justice P.B. Barley Facts [ 1 ] The accused was convicted after trial on one count of assault with a weapon: a bullhorn contrary to S.267 (

a) of the Criminal Code , from August 12 th 2012 and on two counts of mischief, contrary to S430(1)(

a) from August 5 th, 2021. The facts are set out in my decision R v McNallie 2023 ABCJ 135 . Background of Accused [ 2 ] A Pre-sentencing report was prepared. It shows that she was 30 years old at the time of these offences and the mother of a 13 year old girl she is raising on her own. [ 3 ] She has a Grade 9 education. Despite this, she is articulate and seems to have strong organizational skills. She works in branding, marketing, and anti-oppression learning sessions. [ 4 ] She took counselling about 3 years ago for an undisclosed issue.

She did not find it helpful. [ 5 ] Her mother was White, and her father was Black. Her mother raised her on her own. The mother had mental health issues, and the accused left home at 16. [ 6 ] She stated that she was verbally and physically abused growing up, as a result of her Black background. She advises that she

still suffers from racism, violence, and aggression. [7] She refused to provide the name of her half brother or the name of the father of her child. [8] She denies feeling remorse for the offences and does not plan to make amends. She believes that she is the victim andexpects amends to be made to her. Victims [9] There is no Victim Impact Statement from the photographer. [10] A Victim Impact Statement from the victim of the assault was filed. She describes a high level of anxiety while at work wherethe incident took place.

She continues to have a feeling of distress that impacts her personal and work lives: she has two small childrenand was anxious both when home or out and about. [11] Physically, she still suffers from severe, almost daily headaches. She has had to limit her fitness regimen, which is veryimportant to her. Position of Parties Crown [12] The Crown is seeking 90 days custody, to be served intermittently, followed by 12 to 18 months’ probation. He submits thatthe accused intended to inflame tensions with the female that she hit, and to harass the photographer.

He submits that the PSR shows thatshe has no remorse, and no plans to make amends. [13] He points out that the Court of Appeal in McFarlane, 1976 ALTASDC 6, stated that it would be “a most exceptional casewhere a crime involving violence would be dealt with by an Order of Discharge. Para 11. [14] Crown also relied upon the reasoning of the Alberta Court of Appeal in R v Zentner 2012 ABCA 332. In it, the Court stated As for rehabilitative and restorative sentences, a discharge is far from the only way to achieve either or both such effects.

Communityservice as an aspect of probation, conditional sentence orders, suspended sentences, fines, compensation orders, and other probationterms can all achieve them. Many can be combined with other types of sentence. And proper sentencing should blend the deterrent andthe reformative; reform of the accused is not the only objective: R v Crazybull (1993) 1993 ABCA 197 , 141 AR 69 (CA)(paras 17-18). [15] The Crown acknowledges that the accused deserves credit for agreeing to facts set out in writing, including the accuracy ofthe videos from security cameras and her identity in them.

This would have been provable, but very time consuming. [16] He also provided the case of R v Ambrose 2000 ABCA, which stated that lack of remorse is a lack of a mitigating factor, notan aggravating factor. Defence [17] Defence counsel seeks a conditional discharge, with two years’ probation. [18] He bases this partly on a consideration of the anti-Black racism that the accused has experienced, as set out in the P.S.R.

Heagrees that this is not strictly analogous to the treatment of Indigenous people by society and the resulting considerations as set out in R vGladue (SCC), [1999] 1 S.C.R 688 and R v Ipeelee 2012 SCC 13. He advises that his client helps marginalizedindividuals obtain food and housing. He advises that those who deal with such persons are subject to greater scrutiny with respect tocriminal backgrounds.

He suggests that it would be a mistake to incarcerate her, continuing the over representation of Black persons inthe prison system. [19] He also relies upon the case of R v Dunn 2023 K.B 192 to argue that the term of 90 days incarceration sought by the Crownis too high. Ironically, this was the matter that the accused and others were protesting. In it, a police officer forcefully took a young Blackwoman, who was handcuffed behind her back, to the floor for no good reason. She landed on her face and briefly lost consciousness.

Shesuffered bruising and injuries to her mouth, and residual headaches. [20] The trial judge imposed a 30 day Conditional Sentence Order. On appeal this was increased to 30 days incarceration to beserved intermittently followed by 6 months of probation and 75 hours of community service work. [21] Defence counsel also relies upon the decision of the British Columbia Court of Appeal in R v Moyan 2017 BCCA 227. Thataccused was Metis. He had been raised in a family where violence and criminality ruled his life from the moment that he was born.

TheCourt considered the directions of the Supreme Court of Canada in R v Gladue (SCC), [1999] 1 S.C.R. 688 and R vIpeelee 2012 SCC 13. They referenced para 80 of Gladue As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender

and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?

Issues on Sentencing [ 22 ] What, if any, effect does the fact that the accused is a Black woman have on the determination of an appropriate sentence? [ 23 ] In R v Morris 2021 ONCA 680 , the Ontario Court of Appeal considered the relevance of the Black race of an offender who was convicted of possession of a loaded prohibited restricted handgun. [ 24 ] The accused had produced two reports for sentencing. The first was a detailed report on the extent of anti-Black racism in Canada, particularly in the Toronto area. It linked this racism to lessened opportunities in all aspects of society for Black persons.

The Court of Appeal stated that this leaves many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair. Para 39. [ 25 ] The overall

summary of the decision is set out in Para 13 For the reasons set out below, we come to the following conclusions: • The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in

Part XXIII of the Criminal Code ; • Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718; • The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred.

Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence; • Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender; • Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided; • The Gladue methodology does not apply to Black offenders.

However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing. [ 26 ] The Court of Appeal emphasised that the greatest principal of sentencing is proportionality which takes into account the gravity of the offence and the degree of responsibility of the offender. Para 65. [ 27 ] Evidence of societal disadvantages does not lessen the seriousness of the offence but can mitigate the accused’s responsibility. Para 75, 76.

Analysis [ 28 ] In the present case, I do not have a report on anti-Black racism in Alberta but it is logical to accept that the factors set out in Morris apply in Alberta as well. [ 29 ] The PSR sets out clearly the extent of the racism experienced by the accused.

This lived experience may have heightened the accused’s frustration with the off-duty Sheriff who she thought had given dirty looks to the protestors and whom she thought was complaining to the uniformed Sheriffs. [ 30 ] It is difficult to see how the lived experience of the accused is in any way relevant to the interaction with the photographer, who was across the street taking photographs of the protestors. This was perfectly legal and could in no way be considered a threat or insult to the accused. [ 31 ] The racism experienced by the accused is relevant to my consideration of an appropriate sentence.

The accused was protesting racism at the time of these incidents and I accept that the atmosphere was tense. This, as I indicated earlier, might explain, but not justify, the accused’s lashing out at the off-duty Sheriff. I accept that she did not set out to hit the other woman. However, I did find that she knew that she was aggravating her and intentionally continued insulting the group of Sheriffs and specifically filming them.

Her complaint that the off-duty Sheriff was behaving badly by grabbing the phone is lessened by her own behaviour. [ 32 ] Her actions towards the photographer were calculated and deliberate. She went towards him with a group with an open water bottle with the intention to harass and intimidate him. One might hope that her experiences with being the recipient of harassment and bulling might have taught her to accept and respect other who are not challenging her but that seems to not be the case.

Analysis [ 33 ] In the present case, there is little evidence of the family life of the accused other than that her mother had mental health issues and was difficult. Unfortunately, this is not rare in all cultures and races across Canada. [ 34 ] There is no evidence that Blacks have a unique view of how wrong doers should be dealt with. Para 80 of Gladue supra addresses the possibility of a different perspective in the Indigenous community about criminal sanctions.

It points out that the community might feel that crime prevention and other goals might be dealt with by healing. [ 35 ] In Morris supra the court accepted that many in the Black community have a reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair. Para 39. [ 36 ] The Court also pointed out that there may be something different about aboriginal offenders which may make imprisonment less useful.

P116. [ 37 ] It points out that there is no basis to conclude that Black offenders or Black communities share a fundamentally different view of justice or what constitutes a just sentence. P 120. [ 38 ] It goes on to add Although we would not equate Black offenders with Indigenous offenders, for the purpose of s.718.2(e), the Gladue//peelee jurisprudence can inform the sentencing of Black offenders in several respects: see Borde , at para. 30.

Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances. Similarly, in considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders.

Finally, as with Indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances. [ 39 ] In the present case, the racism the that accused suffered may have heightened her sense of defensiveness when she dealt with the off-duty Sheriff who was talking to two on-duty Sheriffs.

She has to accept some responsibility for heightening tension by approaching the group while loudly insulting them and aggressively filming the victim, who clearly did not want that to happen. [ 40 ] The attack on the photographer was completely unjustified. The accused who complains of being harassed constantly should have some awareness of the negative results of her harassment of this civilian.

Propriety of Discharge [ 41 ] The Alberta Court of Appeal in R v MacFarlane supra considered the factors to be addressed when considering the suitability of a discharge. 1) Nature of Offence The Court states that it would be most exceptional that a crime involving violence would receive an Order of Discharge I see nothing exceptional in the present case. The accused was deliberately provoking the female complainant by filming her so cannot be heard to complain when the victim over reacted. 2) Prevalence of offences in community.

Both violence and property damage as prevalent in Calgary. 3) Personal Gain This is hard to determine. The accused is a paid participant in anti-racism activity, of which the present activity was a part. On the other hand, I do not doubt that the accused is genuinely committed to the cause. It is impossible to quantify the personal financial gain. 4) Value of Property The camera lens and glasses were collectively a not insubstantial value for an individual who needs them for his work. 5) Where the acts impulsive or calculated? The pouring of the water was very calculated.

The damage to the glasses was likely impulsive. The violence towards the female victim was not pre-planned but was the somewhat predictable result of a deliberately aggressive cause of conduct. 6) Need for a public record This matter is so high profile that the public already knows of it.

Conclusion [ 42 ] I do not find that a Discharge is appropriate in this case. Acts of aggression towards others resulted in significant financial damage to the work property of one person and a week later caused significant physical damage to a person believed by the accused to be an uninvolved citizen. I think that denunciation and deference must be paramount.

It may be that the registration of a criminal conviction might impact her work in the community but this same argument might apply to many other persons charged with a criminal offence. [ 43 ] The concept that the fact that the accused was protesting injustice at the time lessens her moral culpability ignore the fact that there were multiple other protestors present who did not seem to feel the need to resort to violence to get their point across.

The accused being a leader of the protestors should have been an example of restraint rather than aggression. [ 44 ] On the other hand, the decision in Dunn supra is instructive in the limit of the use of denunciation and deterrence on a person with no criminal record who causes harm to another.

The injuries in that case were less than in the present case but the victim in that case had no chance to walk away from the risk whereas the victim of the assault in the present case did. [ 45 ] In this case, on the charge of assault with a weapon, I sentence the accused to 30 days imprisonment to be served intermittently. [ 46 ] On the two charges of mischief, I sentenced the accused to 14 days imprisonment each to be served concurrent to the 30 days and concurrent to each other.

I note that there will be an element of deterrence when the accused pays for the damaged property of the photographer. [ 47 ] There will also be two years of probation and the required ancillary orders. The terms will be discussed now with counsel and will include restitution to the photographer. Dated at the City of Calgary, Alberta this 4 th day of December, 2023. P.B. Barley A Justice of the Alberta Court of Justice Appearances: James Pickard for the Crown Chad Haggerty for the Accused