R v Badger, 2024 ABCJ 36

In the Alberta Court of Justice Citation: R v Badger, 2024 ABCJ 36 Date: 20240213 Docket: 221063126P1 Registry: Edmonton Between: His Majesty the King Crown - and - Anthony Junior Badger Accused Reasons for Sentence of the Honourable Justice F.K. MacDonald INTRODUCTION [ 1 ] On September 5 th , 2023, Mr. Badger pled guilty to the following offences: COUNT 1: BETWEEN THE 23 RD DAY OF MAY, 2022, AND THE 24 TH DAY OF MAY, 2022, BOTH DATES INCLUSIVE, AT OR NEAR EDMONTON, ALBERTA, DID UNLAWFULLY WOUND, MAIM, DISFIGURE OR ENDANGER THE LIFE OF JOY HARTMAN, THEREBY COMMITTING AN AGGRAVATED ASSAULT, CONTRARY TO

SECTION 268 OF THE CRIMINAL CODE OF CANADA COUNT 2: BETWEEN THE 23 RD DAY OF MAY, 2022, AND THE 24 TH DAY OF MAY, 2022, BOTH DATES INCLUSIVE, AT OR NEAR EDMONTON, ALBERTA, DID STEAL A MOTOR VEHICLE, THE PROPERTY OF JOY HARTMAN, CONTRARY TO

SECTION 333.1 OF THE CRIMINAL CODE OF CANADA. [ 2 ] Defence Counsel Mr. Wolsey confirmed on the record that Section 606(1.1) of the Criminal Code of Canada , RSC 1985 c C-46 [ Criminal Code or Code ] had been complied with, that the accused answered the questions in that subsection affirmatively and that the accused understood the nature and consequences of his plea. Mr. Badger admitted the facts read out in Court and I accepted the guilty pleas.

Those facts were subsequently supplemented with other facts, agreed to by both counsel on January 12 th and 16 th , 2024, when I heard sentencing submissions from counsel. [ 3 ] Counsel have presented me with a joint submission of 25 months custody. On January 12 th I expressed my reservations about the joint submission and the matter was adjourned until the 16 th so counsel could provide me with additional submissions and case law justifying the position on sentence they had taken. A number of exhibits were put before me: photos of Ms. Hartman taken at hospital the day after the offences (Exhibit S-1); Mr.

Badger’s criminal record (Exhibit S-2); a Gladue Report (Exhibit S-3); victim impact

statements from the complainant, Joy Hartman, from her ex-husband, Mr. Ziv, and from her daughter, Maya Ziv (Exhibit S-4); and finally, a restitution request. Mr. Badger read an apology into the record on January 12th. Ms. Hartman appeared in person on the 16th and Mr. Badger re-read his apology to her. A written copy of that apology is now Exhibit S-5. [4] For the reasons that follow and in accordance with the Supreme Court of Canada’s dicta in R v Anthony Cook, 2016 SCC 43[Cook], I decline to follow the joint submission.

It is unhinged from the circumstances of the offence and the degree of responsibility ofthe offender. The administration of justice would be brought into disrepute if I imposed the sentence submitted by counsel. [5] I sentence Mr. Badger to a sentence of five years, less his time in pretrial custody. THE FACTS [6] The following facts were admitted to be true and accurate by Mr. Badger. These facts were read into the record by theCrown, Ms. Bond. The circumstances are on May 23rd, 2022, at approximately 6:45 PM, Mr.

Badger and an unidentified female were at the WestEdmonton Mall, where they met Joy Hartman as she was waiting for a taxi. They were unknown to one other and began talking, and aftera period of time, Mr. Badger chased down a taxi and they agreed to share it to Ms. Hartman’s residence, as they indicated they livednearby. On arrival at the residence, Mr. Badger and his friend asked to see Ms. Hartman’s dog that she had been talking about, and Ms. Hartmanagreed. After some time inside her suite, Mr. Badger proceeded to strike Ms.

Hartman multiple times hard in the head and face, knocking her tothe ground, and kicking – kicking her repeatedly in the shoulder until she lost consciousness. Mr. Badger and his female friend remainedin the suite consuming alcohol for hours. Ms. Hartman awoke at noon the next day. She was nauseous, and her head was pounding and she made her way to the bathroom, whereshe discovered that she had significant facial injuries: including two black eyes; red swollen eyelids; red swollen nose; and left ear withdried blood around them; a large bruise on her right bicep; and a large bruise on her shoulder blade.

She noticed that her passport, phone, purse, wallet, house keys, and car keys were missing, and observed that there were small drops ofblood in each room of her residence, and her bedroom television was knocked over. Police were called, and as they were assisting her into an ambulance for transport to the hospital, she observed that her 2015, black FordExplorer, valued at $30,000.00, was missing from its parking spot. The vehicle, which was stolen by Mr. Badger, was located at 11:00 AM, on May 24th, 2022, abandoned on Campsite Road in SpruceGrove, Alberta.

And it had clearly been involved in a collision: The vehicle's exterior was all scratched; the driver’s side rear tire hadbeen changed to the spare; the front wiper blades were missing; and property was strewn about inside, including the smashed fob for thevehicle, which had been taken from Ms. Hartman’s residence. Amongst the property was Ms. Hartman’s passport, and numerous IDcards belonging to her. The estimated damage to the vehicle was approximately $21,500.00. Ms.

Hartman was transported to the Royal Alexandra Hospital, and it was determined that she sustained a non-displaced right scapularneck fracture, and a subarachnoid hemorrhage – which is a brain bleed – as result of the assault. [7] On September 5th Mr. Wolsey added, with the consent of the Crown, the following facts: There was blood throughout the residence, much of which was Mr. Badger’s. Mr. Badger had an injury on his finger. [8] On January 16th the following facts were put on the record by Mr. Wolsey and agreed to by Ms. Bond. All parties had been drinking before arriving at Ms. Hartman’s apartment.

A third person, a male, arrived at the apartment and broughtalcohol with him. Ms. Hartman was in and out of consciousness in the time between the assault and noon the following day. SENTENCING PRINCIPLES [9] In R v. Friesen, 2020 SCC 9 [Friesen], the Supreme Court said the following: [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.

Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing ins. 718.1 ofthe Criminal Code. [10]

Section 718.1 states as follows: Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] In R v Arcand, 2010 ABCA 363 [Arcand], the Alberta Court of Appeal explained what goes into a proportionality assessment: [57] What is meant by “gravity of the offence”? This concept is directed to what the offender did wrong.

It includes twocomponents: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. [58] The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. [lxxxvi] For this assessment, courts are able to draw extensivelyon criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater themoral culpability.

However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the timeof commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affectingculpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing thecrime... [12] I will discuss both in detail below. THE DEGREE OF SERIOUSNESS OF THE OFFENSE [13] In this case, the harm or likely harm to the victim, Ms. Hartman, is very grave indeed. She was rendered unconscious.

Thekicks to her shoulder broke her shoulder blade (the scapular neck fracture). The pictures which were made Exhibit 1 clearly show that shehas two blackened eyes and a swollen face. Attached to her victim impact statement is a picture of herself with her dog before theassault. It is quite clear that the assault caused swelling to her face and head. A subarachnoid hemorrhage is a bleed which occurs whentrauma ruptures a blood vessel in the brain. The arachnoid membrane is a layer of tissue encapsulating the brain and spinal cord.

Longexperience in these Courts has taught me that such intracranial bleeds are very serious and life threatening. The case law cited belowcontains instances where such head injures have resulted in permanent disabilities. Ms. Hartman’s victim impact statement details thetrauma she suffered and the treatment. She remained in hospital for two weeks. She experienced severe migraines. She could not speakproperly for a month. The permanent effects of this injury are short term memory loss, speech impediments, and double vision.Ms. Hartman now cannot drive a motor vehicle.

She now suffers from anxiety and severe depression. She was a physiotherapist for 22years. She can now no longer work in her chosen profession. [14] In short, Mr. Badger inflicted life threatening and life changing injuries on Ms. Hartman. The effects of these injuries havedevastated every aspect of her life. In addition to the above, the vehicle that he stole was extensively damaged—as described above. Thevehicle was not insured and thus Ms. Hartman was obliged to repair the vehicle out of her pocket.

I have before me a restitution claim for$10, 997.94 of repair costs to the vehicle. [15] In addition to the physical and psychological harms which Mr. Badger has visited upon Ms. Hartman, her present and futurefinancial security has been severely compromised. Ms. Hartman has also made a restitution request for lost income. Ms. Hartman advisesthat prior to the assault she was making up to $60,000.00 a year. After these events in 2022 she did not work. Her income for January toMay of 2022—when this crime occurred– was $37,000.00. She did not work in 2023. [16] The harm to society and its values is also profound.

One of the oldest tenets of any civilized society is that a guest does noharm to his host; and reciprocally that a host do no harm to his guest. The assault occurred in Ms. Hartman’s home. Mr. Badger repaidMs. Hartman’s hospitality and civility by violence and theft. Having cruelly rendered her unconscious by his violent actions, he called nohelp. Rather, he and his companions callously remained in Ms. Hartman’s home and drank alcohol while she lay unconscious on thefloor at their feet.

The failure to render aid to another human being who has suffered harm is a fundamental breach of every citizen’sobligation to assist another in a time of medical crisis. Mr. Badger then stole Ms. Hartman’s property from her home –her purse, ID,credit cards, passport and motor vehicle keys –as she lay incapacitated, and then stole her vehicle. [17] In R v.

Matwiy, 1996 ABCA 63 [Matwiy], the Alberta Court of Appeal commented on the seriousness of violent depredationsin a victim’s home: [26] We are of the view that the home invasion robbery merits a higher starting point sentence than the armed robbery of a bank orcommercial institution.

While offences of violence are abhorrent wherever they occur, offences which strike at the right of members ofthe public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness.Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, withlittle hope that help will arrive.

Such offences, whether they result in injuries or not, are almost always terrifying, traumaticexperiences for the occupants of the residence often leaving them with a total loss of any sense of security. [27] The importance of the societal value protecting the integrity of a person’s place of residence has been recognized by the SupremeCourt of Canada. In Colet v. the Queen, (SCC), [1981] 1 S.C.R. 2 at 8, Ritchie J. spoke of the “long-standing right of acitizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shallnot be permitted to invade it”.

He added: The common law principle has been firmly engrafted in our law since Semayne’s case in 1604 (77 E.R. 194, 5 Co. Rep. 91a), where itwas said ‘That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for hisrepose…” [28] In Lyons v. the Queen, (SCC), [1984] 2 S.C.R. 633 at 657, Estey J. said that “the inviolable nature of theprivate dwelling is a basic part of our free society”. He added, ‘The home is not a castle in isolation; it is a castle in a communityand draws its support and security of existence from the community”. (emphasis added)

[ 18 ] Mr. Badger’s actions erode our society’s fundamental protection of the individual’s security in their own home. The above quotations from Matwiy illustrate perfectly the harms visited upon Ms. Hartman individually, and collectively upon society’s values. [ 19 ] This is a very serious offense. As I will discuss further below, this offense is as serious as a home invasion robbery, despite its differences from that type of offense. The facts in this case, taken as a whole, almost amount to a robbery.

The sentence imposed must therefore be proportionate to the seriousness of that offence and the degree of responsibility of the offender. THE DEGREE OF RESPONSIBILITY OF THE OFFENDER [ 20 ] I have before me a thorough Gladue Report. Mr. Badger is a member of the Montreal Lake Cree Nation in Saskatchewan. Mr. Badger was born November 28, 1989. He is now 34 years of age. [ 21 ] Both of Mr. Badger’s parents attended residential schools. Mr. Badger’s father, Anthony Badger Sr. attended the Residential School in Duck Lake, Saskatchewan. Mr. Badger Jr. is unsure which residential school his mother attended.

Both parents were punished for speaking their Indigenous language—Cree— and both were subjected to mental and sexual abuse while at residential school. Miraculously both parents retained their language. Mr. Badger Jr. himself attended a residential school from ages five to eight in Prince Albert, Saskatchewan. Mr. Badger Jr. advised the Gladue Report writer that he was sexually abused by older students during his time at the residential school. Mr. Badger Sr. confirmed that the residential school experience was not good for his son. Mr.

Badger Jr.’s sister, Lanette, confirmed this and noted that he suffered a significant amount of abuse at school. [ 22 ] Mr. Badger advised that there was significant violence between his parents. His father had an alcohol problem and was violent with his mother. When he was small, age five, he would intervene to protect his mother and consequently be beaten by his father. In addition to the above, Mr. Badger advised he was sexually abused by three older boys in the Montrel Lake community. Some two years after his return from residential school, Mr. Badger’s parents separated.

His mother subsequently moved to Prince Albert. Mr. Badger’s sister Lanette advised the report writer that this was a difficult time for Mr. Badger. His father was struggling with alcohol abuse; his mother with drug abuse. Mr. Badger resided with his father in Montreal Lake until age 13. [ 23 ] He then resided with his mother. This was problematic because of the mother’s drug abuse. She gave him his first line of cocaine at age 13 and used drugs with him when he was residing with her. Up until age 18 he was residing with one or the other parent. [ 24 ] Mr. Badger’s life has been marred by alcohol and drug abuse.

He first tried alcohol at age 12, “but didn’t like it”. However, by age 16 he was using alcohol to calm himself. At age 20 he was consuming 40 ounces of hard liquor a day. [ 25 ] He first tried marijuana at age 11. As noted above, he was introduced to cocaine by his mother at age 13; of note his mother was both using and selling cocaine at the time. At age 14 he was abusing crack cocaine; at age 20 he started on methamphetamine. Mr. Badger told the report writer that he was using methamphetamine, fentanyl and alcohol from 2020 to the date of the present offence. In that period, he overdosed three times. Mr.

Wolsey advised the Court that the present offence occurred at the end of a five-day alcohol and methamphetamine binge. [ 26 ] Mr. Badger attended a 30-day treatment program in 2012 and successfully completed it. However, he relapsed three days after leaving treatment. He has attended detox twice; once from hospital. He has attended AA and NA meetings, but told the report writer that he thinks attending church is just as beneficial. In expectation of his release from custody, he has enrolled in a year long rehabilitation program in Saskatchewan — the Teen Challenge program. [ 27 ] Mr.

Badger had a relationship with the mother of his child, Amber, at age 18. That relationship lasted for three years and ended because of Mr. Badger’s drug use — crack cocaine — and infidelity. His daughter from that relationship is Alexis. Alexis resides with her mother in Medicine Hat. Alexis has told Mr. Badger that if he returns to jail, she will no longer speak to him. Mr. Badger maintains a good relationship with Amber. [ 28 ] Mr.

Badger now has a good relationship with his father Anthony Sr., who I note has been in Court for this sentencing, despite the distance to his home in Saskatchewan and the dreadful January weather. Anthony Sr. has been sober for nine years and is obviously very supportive of his son and an example for him that he can turn his life around. [ 29 ] Mr. Badger’s time at the Prince Albert Residential school was abusive. He struggled in school. He had difficulty reading; he observed that little effort was made to attempt to help him. He finally learned to read in Grade eight.

He did complete high school and obtained his Grade 12, which he credits his mother for since she pushed him to complete. Mr. Badger has started a first-year carpentry program, which was cut short by a jail sentence after a month. [ 30 ] Mr. Badger has an intermittent employment record. His first job started at age 12 working at drywall and carpentry with his father. In Prince Albert he worked at a clothing store for a few months — at age 13. In 2012 he worked as a delivery driver of three-ton trucks for Econo Lumber. He held that position for six months. He has also worked as a roofer for a one-year period.

He has worked driving a loader and skid steer and has worked operating heavy equipment. He had a job at Nectar Fabrications building c-cans, however he did not stay at that position because his foreman disclosed to the rest of his crew that he was struggling with substance abuse. This same foreman has sent him to detox. Prior to being incarcerated he worked for Amazon for 5 months building pods. It is clear from the above that Mr. Badger has skills which make him employable, and that when sober he has a good work ethic.

However, his substance abuse problems and the resulting jail sentences make it difficult for him to maintain employment. [ 31 ] Mr. Badger did have some counselling for the multiple instances of sexual abuse described above — arranged by his older sister when he was nine. He believes he may have ADHD. Mr. Badger suffers from anxiety and depression, in part because of his separation from his daughter, and in

part in reaction to his actions during this offence. [ 32 ] Mr. Badger lost a cousin with whom he was very close when he was 18. Mr. Badger lost his mother from COVID-related complications in 2022. Mr. Badger was incarcerated at the time and could not attend the funeral. This had quite an impact on him. In

November of 2022 a close friend of Mr. Badger’s, Charlie, was shot and killed on the Montrel Lake Cree Nation. Another friend,Kenneth, was shot in the head and killed in 2023. Mr. Badger struggles emotionally with these deaths. [33] Clearly the sentencing principles discussed in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] andR v Ipeelee, 2012 SCC 13 [Ipeelee] are applicable to Mr. Badger. Our Court of Appeal has delineated the assessment I must undertake tosentence Mr. Badger in accordance with those principles.

See R v AD, 2019 ABCA 396 [AD], where our Court of Appeal states thefollowing: [19] A sentencing judge is required to consider the circumstances of the Aboriginal offender (Criminal Code, s 718.2(e)). Thesecircumstances, often referred to as Gladue factors, include the “unique systemic and background factors” of the offender that may haveplayed a

part in the offender’s conduct (R v Laboucane, 2016 ABCA 176 at para 56, [2016] 12 WWR 34, citing R v Wells,2000 SCC 10 , [2000] 1 SCR 207 at para 38, 182 DLR (4th) 257 and R v Ipeelee, 2012 SCC 13 at para 73, [2012] 1SCR 433). Consideration of these circumstances may shed light on the offender’s moral culpability (R v Swampy, 2017 ABCA 134 at para 25, [2017] 12 WWR 765), although there need not be a causal link between the offender’s circumstances and theoffence committed (Ipeelee at paras 81-83; Laboucane at paras 63-64).

A sentencing judge must explain whether the Gladue factors arerelevant to determining a fit sentence insofar as they affect the offender’s moral culpability (Laboucane at para 64, quoting from R vNapaesis, 2014 ABCA 308 at paras 8 and 13, 580 AR 380). [20] Moral culpability (i.e. moral blameworthiness) is part of the assessment of proportionality, which is the fundamental principle ofsentencing (Ipeelee at para 37; Criminal Code, s 718.1).

A proportionality assessment has two equally important considerations: (1) toensure the sentence reflects the gravity of the offence, and (2) to ensure the sentence does not exceed what is appropriate given the moralblameworthiness of the offender (Ipeelee at para 37). [34] Judge M.E. Turpel Lafond provides a helpful checklist of factors to consider when assessing the effects that an accused’saboriginal heritage has had upon his life, and which may have been factors in bringing him before the Courts.

In “Sentencing within aRestorative Justice Paradigm: Procedural Implications of R v Gladue” 2000 43 C.L.Q. 34, he states the following: B. What unique circumstances have played a

part in bringing this offender before the courts?

The sentencing judge must considersome of the following issues/factors and query counsel or unrepresented offenders. • has this offender been affected by substance abuse in the community? • has this offender been affected by poverty? • has this offender been affected by overt racism? • has this offender been affected by family or community breakdown? • has this offender been affected by unemployment, low income and a lack of employment opportunity? • has this offender been affected by dislocation from an Aboriginal community, loneliness and community fragmentation? I will briefly consider each.

Has this offender been affected by substance abuse in the community? [35] This has affected Mr. Badger profoundly. Both his parents have substance abuse issues. His mother introduced him to harddrugs at a young age. He has had substance abuse modelled for him as a coping behavior throughout his childhood. Substance abuse wasa factor in his unstable childhood. His own life and relationships have been deeply affected by his own addictions. Has this offender been affected by poverty? [36] In his upbringing, no. Has this offender been affected by overt racism? [37] In the information before me, no.

Has this offender been affected by family or community breakdown? [38] Yes, familial instability is a feature of his childhood and of his relationships. Has this offender been affected by unemployment, low income and a lack of employment opportunity? [39] Yes, this is a direct result of his substance abuse issues. Mr. Badger has skills and a work ethic which – when he is sober —make him eminently employable. His fractured employment history and poor record of staying employed are directly attributable to hisfamily and childhood trauma and his substance abuse issues.

Has this offender been affected by dislocation from an Aboriginal community, loneliness and communityfragmentation? [40] Yes, he has suffered significant loss in recent years of persons close to him — i.e. his mother and two friends. He is isolated

from his child. His addictions have winnowed whatever prosocial contacts he has in the community. His friends are now fellow users. [ 41 ] I conclude that Mr. Badger’s Indigenous background has played a significant

part in bringing him before the Courts. His moral culpability is mitigated by these Gladue factors. THE CRIMINAL RECORD [ 42 ] Mr. Badger has a lengthy and related criminal record. The record commences in 2008. There are 64 convictions on the record; 29 of those convictions are for failing to comply with release or probation orders, and he has two convictions for unlawfully at large and one conviction for breach of a firearms prohibition (per s 117.01

(1) C.C.). There are nine property-related offenses — including two break and enters, five possession of stolen property, and one theft of a motor vehicle. There are five driving offenses — one dangerous driving from 2011 and four flight from police in 2018. There is also a possession for the purposes of trafficking charge in 2015. [ 43 ] There are a number of violent offenses on this extensive record. In 2011 Mr. Badger was convicted of simple assault and given a suspended sentence.

In 2015 he received two years’ jail for robbery and disguise with intent; on that same date, he pled guilty to another robbery, a break and enter, a theft of motor vehicle, possession of a weapon, arson, obstructing a police officer, identity fraud, possession of a controlled substance, and multiple breaches of recognizance for which he received – in total – two years less a day, plus three years probation.

In 2017 he was convicted of possession of a restricted or prohibited weapon and possession of a firearm or ammunition contrary to a prohibition order and received four months on each of these two charges, concurrent. In 2018 he was convicted of resisting arrest and fail to comply with probation order and received a sentence of 132 days. In 2018 he received 405 days for four counts of flights from police and four counts of possession of property obtained by crime. Finally, in August of 2023 he received a 22- month conditional sentence order for assault with a weapon and two counts of uttering threats.

I understand that the offence date of these last offences predates the events in this case. [ 44 ] Since 2015 he has been sentenced to just slightly over six years of custody. [ 45 ] His last two convictions — this aggravated assault and the assault with a weapon and threats — have been for serious violent offences. The trajectory of his offending is towards greater and more serious violence. Mr. Badger’s record of offending is steady since 2015. Further, Mr.

Badger has shown himself to be incapable of complying with the conditions of bail orders meant to secure the safety of the public while he is on release or with probation orders meant to rehabilitate him and reduce his risk of re-offending. [ 46 ] Mr. Badger is a danger to the public. The above noted Gladue factors significantly reduce his moral culpability. However, the mitigating effect of those Gladue factors is tempered by the fact that Mr. Badger’s method of coping — alcohol and drug use — make him a positive danger to lives, safety and property of his fellow citizens.

The criminal record shows that he has been placed on probation six times. His record for complying with Court orders is dismal; he has 27 breaches of release or probation on his record, plus the 2017 breach of a firearms prohibition and two unlawfully at larges in 2017 and 2019. In short, once back in the community Mr. Badger simply does not follow Court orders. [ 47 ] Counsel have submitted that Mr. Badger’s prospects of rehabilitation are good, given his remorse, his guilty plea, his family support, his course work in remand and his efforts to secure treatment.

Counsel also suggest that the 2023 Conditional Sentence Order, in abeyance pending resolution of this matter, will provide additional support and control to keep Mr. Badger on the path of rehabilitation. I accept that Mr. Badger is sincere in his wish to reform; however, once outside an institution his ability to put his good intentions into practice is dismal. Mr. Badger’s prospects for rehabilitation are frankly low. AGGRAVATING AND MITIGATING FACTORS [ 48 ] The aggravating factors in this case are many and serious. They are as follows: 1) That the assault occurred in the complainant’s home. 2) Mr.

Badger was in Ms. Hartman’s home as a guest. 3) Mr. Badger’s assault on Ms. Hartman facilitated the theft of her property. 4) The assault on Ms. Hartman was plainly intended to cause injury. Having knocked Ms. Hartman to the ground, Mr. Badger continued to kick Ms. Hartman until she lost consciousness. Based on the facts before me I find — beyond a reasonable doubt — that the force applied to Ms. Hartman was intended to cause significant bodily harm. 5) The gross disparity between the size and strength of Mr. Badger and Ms. Hartman is particularly aggravating. Ms. Hartman is petite.

It is clear that she is just five feet tall or thereabouts. Mr. Badger is broad shouldered and deep chested; he is a large and powerful man. It is a shameful act when any man strikes a woman; it is trebly so when the man is, as here, conspicuously larger and stronger than the victim. 6) Having rendered Ms. Hartman unconscious, Mr. Badger remained in her home and consumed alcohol with his companions — neither calling for help nor rendering any aid to the unconscious complainant. This was an extraordinarily callous act. 7) The injuries to Ms. Hartman were life-threatening.

The injuries have proven to be life altering. Her brain injury is such that she can no longer work in her chosen profession, nor can she drive a motor vehicle. Her short-term memory is now impaired. Predictably, she now suffers from anxiety and depression. 8) Having stolen Ms. Hartman’s property and vehicle, Mr. Badger caused approximately $10,000.00 in damage to the vehicle. 9) Mr. Badger’s record shows that he is a danger to the public and that he is a poor prospect for rehabilitation.

[49] The mitigating factors are as follows: 1) The guilty plea. This guilty plea is particularly meritorious since there were considerable problems with the Crown’s caseregarding proof of identity. Ms. Hartman did not identify Mr. Badger when presented with a photo line-up by police. She has, as notedabove, significant impairment in her memory as a result of the injuries inflicted upon her. Testifying would undoubtedly have been bothdifficult and traumatic for her. The identification of Mr. Badger as Ms. Hartman’s assailant hinged on her testimony regarding a tapedinjury to his finger.

Crown and Defence have both emphasised that this is a thin thread upon which to hang identity given the presence ofa third person, another male, in the apartment. The Crown was unable to secure medical evidence which definitively established whenMr. Badger had that injury. 2) The Gladue factors noted in detail above. 3) Mr. Badger’s remorse – which I accept and which he expressed in Court, in his written apology and in his statements to the GladueReport writer. 4) Mr. Badger’s efforts to secure a rehabilitative placement post-release and his coursework while in remand.

PARITY [50] In Friesen the Supreme Court of Canada had this to say about the relationship between parity and proportionality:

(1) Proportionality and Parity [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 ofthe Criminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similarcircumstances should receive similar sentences.

This principle also has a long history in Canadian law (see, e.g., Wilmott) and is nowcodified in s. 718.2(

b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, atparas. 78-79). [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannot bededuced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed inother cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives.Precedents embody the collective experience and wisdom of the judiciary.

They are the practical expression of both parity andproportionality. (emphasis added) [51] One of the reasons that I am not following this joint submission is that counsel’s position is predicated on what I perceive tobe a misreading of the facts in this case. Counsel are treating the offences here as if they are incidental to one another. The theft of thevehicle is being treated almost as an afterthought and unrelated to the aggravated assault. The sentencing precedents that they haveprovided to me focus on aggravated assault. But this is not a simple aggravated assault.

The facts in this case are very close to a robbery.Consequently, the sentencing cases which, according to Friesen and the parity principle, are most relevant in determining a proportionatesentence are those cases in which there is an aggravated assault coupled with and proximate to a theft — in short — robbery cases. Is this a robbery? [52] The Criminal Code defines robbery as follows: Robbery 343 Everyone commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence orthreats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [53] Section 725 (1)(

c) states: Other offences

(1) In determining the sentence, a court (

c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. [54] Plainly a determination that this offense is a robbery would require me to find the requisite facts beyond a reasonable doubt.“Where an inference can be drawn from the admitted or proven facts in a case, the trial Judge is entitled to draw that inference if theJudge is convinced of it beyond a reasonable doubt”: see R v. Sunstrum, 2021 ABPC 183 at para 9 citing LeBreton v R, 2018 NBCA 27at para 33. [55] In the facts of this case Mr. Badger uses great personal violence on Ms.

Hartman and then after steals her purse, wallet,passport, credit and id cards, car keys and vehicle. The facts state that Mr. Badger and his companions remained in the apartmentconsuming alcohol “for hours” before Mr. Badger left with Ms. Hartman’s property and taking her motor vehicle. [56] It is clear that Mr. Badger inflicts violence on Ms. Hartman shortly after arriving in her home. He batters Ms. Hartman untilshe is unconscious. Do the facts disclose a reason for the assault? No. Mr. Badger subsequently steals property and a vehicle fromMs. Hartman.

From those facts, I could infer that the purpose behind the assault was the intent to steal, and specifically to renderMs. Hartman incapable of resistance or complaint. This inference is both natural and reasonable in the circumstances. [57] Counsel in argument suggested that because the parties had all consumed alcohol that there could have been a disagreement ofsome sort which prompted this assault. I have nothing in the facts which would support such a finding. It is entirely speculative. [58] Are there other inferences which can reasonably be drawn from the facts before me? Mr.

Badger was on a multidaymethamphetamine and alcohol binge prior to these events. This assault could be an eruption arising from the irrationality and irascibilitywhich attend such binges. Or, if any intent accompanied the assault, it could have been for the immediate purpose of remaining in andsecuring the residence for the drinking which followed. Either of these alternatives are devoid of the intent to deprive requisite forrobbery in s 343(c). [59] On the peculiar facts of this case, it is also arguable that robbery as defined by s 343(

b) is made out. The term “immediately”means “sufficiently proximate in time which is to be regarded as something which was done immediately after.” See the Ontario Court ofAppeal decision of R .v Burden [1973] O.J. No. 246; (ON CA), 11 C.C.C. (2d) 491 at page 492; or the BC Court ofAppeal in R v Crabe (BCCA); [1993] BCJ No. 537; (BC CA), 79 C.C.C. (3d) 323 at 327; and theOntario Court of Appeal in R v Lieberman (ON CA), 1970 CarswellOnt 17, [1970] 3 O.R. 407, [1970] 5 C.C.C. 300,[1970] O.J. No. 1549, 11 C.R.N.S. 168. In R v Lieberman, Justice Jessup states that subsection (

b) of the robbery

section is made out “ifthere is a theft in fact with the infliction of violence on a person from whom anything is stolen at a time immediately proximate to thetime of the theft.” Manning, Mewett and Sankoff comment that the import of the above cases, especially Burden, is that if the violenceand the theft are part of one more or less continuous transaction so that the violence is related to the theft, the time element may be extended somewhat and yet still be immediate.” (emphasis added) Criminal Law, Manning, Mewett and Sankoff, 5th ed. at pp. 1187-8. [60] Absent from the facts in this case is any intermediary or intervening event which would sever the aggravated assault from thetheft.

Mr. Badger and his companions remain in the apartment. Ms. Hartman remains unconscious. No rational being could think thatMs. Hartman’s permission to be in her home continued to be in effect beyond the moment Mr. Badger beat her senseless. On the factsbefore me, Mr. Badger’s continued and adverse occupation of Ms. Hartman’s apartment only ends with his departure – hours later – withher property and her vehicle. The fact that the theft is conducted at leisure –and irrigated by alcohol—hours after the aggravated assaultdoes not sever it from proximity to the assault.

The aggravated assault and the theft are part of one more or less continuous transaction. [61] On the other hand, the facts are sufficiently sparse that I do not know whether Mr. Badger and his companions occupiedMs. Hartman’s home for two, four, six or eight hours. As elastic as the term “immediately” might be, to extend its meaning to include avery long gap in time would perhaps do violence to the term and to Parliament’s intention that in a robbery the violence and the theft berelatively close in time. [62] Finally, Mr. Badger has not pled guilty to the offense of robbery; nor was he charged with robbery.

In short, this was not anoffence that he expected to be confronted with. The Supreme Court of Canada has stated that judges must, in their exercise of discretionin the application of s 725(1)(c), not consider uncharged offences if this would result in unfairness to the accused: see R v Larche 2006SCC 56 at paras 44-46. That is the case here. [63] In short, the facts before me are not such that I can find that the offense of robbery has been proven beyond a reasonabledoubt. In the circumstances. it would be unfair to Mr.

Badger to exercise my discretion under s 725(1)(c). [64] Nonetheless, the facts admitted by Mr. Badger and agreed upon by the Crown and the Defense show that this offense bears astrong — even fraternal — relationship to a robbery. A just sentence must be proportional to the degree of seriousness of the offence —as the Court of Appeal in Arcand said —“what the offender did wrong.” [65] In answer to my suggestion that this offense amounted to a robbery, counsel submitted that the theft was a crime of“opportunity”.

The “opportunity” here was created by the accused when he battered unconscious the owner of the property he later stolefrom, rendering her unable to object. Although this fact scenario does not have the conjunction of violence and intent to deprivenecessary for s 343(c), it is not any less reprehensible. The fact that the proximity of the assault to the theft are distanced by the hoursMr. Badger idled in drink, while the battered Ms. Hartman lay prone and senseless, thereby taking the situation outside of the ambit of s343(

b) also does not make these facts less reprehensible either. [66] The above illustrates just how close this case is to a robbery. That these events occurred in the complainant’s home is one ofthe most serious of the aggravating factors in this case. PARITY — THE CROWN AND DEFENSE CASES

[ 67 ]

Section 718.2 reads (in part) as follows: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [ 68 ] The Crown submits that the appropriate range of sentence is five to six years and that the following cases support that range: R v Rabbit , 2023 ABCA 170 ; R v Moller , 2012 ABCA 381 ; R v Skinner, 2016 ABCA 132 ; R v Tourville , 2011 ONSC 1677 . Mr. Wolsey, for the defense, concurs and submits that the following cases are supportive of that range: R v Blackrabbit , 2011 ABPC 281 ; R v Saskatchewan , 2015 ABPC 252 ; R v Fensom , 2014 ABQB 238 . [ 69 ] Both counsel point to Mr.

Badger’s Gladue factors as significantly mitigating; both repeatedly and pointedly remark that there were significant triable issues in this case which render the guilty plea especially meritorious. Finally, both point out that Mr. Badger’s expressions of remorse to both the Gladue Report writer and in his apology in Court to Ms. Hartman, coupled with his efforts to secure a long-term treatment bed in Saskatchewan, are significantly mitigating and are strong signifiers of his potential for rehabilitation.

Both counsel rely on the above cases, which they submit establishes a range of sentence in the four- to six- year range. Thus, they jointly submit, a 25-month sentence is fit and appropriate and does not bring the administration of justice into disrepute. [ 70 ] I shall consider briefly each of the above cases. R v Rabbit, 2023 ABCA 170 [ 71 ] R v Rabbit is a case of some notoriety. Mr. Rabbit was in the throes of a drug induced psychotic episode when he viciously assaulted and choked the victim, a 30-year-old mother waiting for her children outside of their school.

The accused believed that the complainant had killed or kidnapped his daughter. He knocked her to the ground and choked and hit her for four minutes. Two of her children were watching. She was blue and foaming at the mouth when the assault stopped and EMT’s revived her. The accused plead guilty to aggravated assault — acknowledging that his assaults had endangered the victim’s life — and to choking. He was remorseful, had extensive Gladue factors, pled guilty and had a limited record. My sister justice imposed a sentence of nine years.

The Court of Appeal found that the sentencing Court had made a number of errors including under-valuing the mitigating effect of the accused’s remorse, his guilty plea and the extensive Gladue factors. The Court of Appeal noted that the Crown on appeal was seeking a sentence in the range of four to six years and imposed a sentence of four years. R v Skinner , 2016 ABCA 132 [ 72 ] This was a sentence appeal from a finding of guilt after trial. Justice Fisher imposed a six–year sentence for break and enter and commit aggravated assault.

It was a group assault during which one person — not this accused — used a knife. This was a group effort to teach the victim a lesson; all were somehow associated with the drug trade. Aggravating was the use of a weapon and the group effort. The Court specifically noted that this case had some elements of a home invasion. Sentence upheld. R v Moller , 2012 ABCA 381 [ 73 ] This was a sentence appeal. The accused pled guilty on the day of trial to an aggravated assault and two counts of uttering threats. The aggravated assault arose when he bottled another male outside a bar, causing disfiguring injuries.

The broken bottle inflicted deep and severe lacerations to the victim’s neck, face and ear, requiring surgery. The victim had ongoing problems from the injuries. The Court of Appeal found that the sentencing judge had improperly found an aggravating factor to be proven beyond a reasonable doubt. The Court of Appeal also was concerned that the sentencing judge had misused the accused’s record in sentencing. The Court resentenced, noting that the accused had pled guilty and that the accused had expressed remorse.

Post-offense the accused had taken treatment at and successfully completed the Salvation Army Anchorage program. The accused had a prior conviction for the same offense (aggravated assault) for which he had received a sentence of two years. The Court of Appeal noted that the accused had addressed the substance abuse issue which was the root of his offending. The Court of Appeal reduced the sentence from five to four years. R v Tourville , 2011 ONSC 1677 [ 74 ] This was a finding of guilt after a four-day jury trial.

The accused was charged with attempted murder but acquitted of that charge and convicted of aggravated assault and possession of a weapon for a purpose dangerous to the public peace. Justice Code parsed the jury verdict and the facts and determined that a 21-month sentence would be appropriate. Essentially the accused got into a consensual fight with another man at a bar. Tourville was angry at his girlfriend and her mother and spoke harshly to them both. The victim, Mr. Asman, intervened on behalf of the women. Initially there was a consensual fistfight in which Mr. Tourville was getting the better of Mr. Asman.

Then Mr. Tourville pulled out an exacto knife – that he used for work – and slashed Mr. Asman some eight or nine times, in the face, the forearms (defensive wounds) and biceps (producing some deep wounds). No permanent disabilities resulted. [ 75 ] Mr. Tourville was Indigenous and had significant Gladue factors – alcoholic parents who separated when Mr. Tourville was young, and a violent history of domestic abuse which he witnessed. He was also subject to prejudice growing up. Mr. Tourville began abusing drugs and alcohol at a young age.

In sentencing Justice Code found that this was an unprovoked assault which occurred in the context of a consensual fight. Justice Code found that Mr. Tourville had considerable potential for rehabilitation – he was a first offender with significant Gladue factors. [ 76 ] Mr. Wolsey has provided me with three cases which he submits are on point for the range of sentence jointly submitted. R v Fensom , 2014 ABQB 238

[ 77 ] Mr. Fensom was a mature offender with a long drug-related record (14 convictions in 14 years). Mr. Fensom drove a woman to an isolated rural location and beat her, rendering her temporarily unconscious. He then loaded her back into a car and dropped her off at a friend’s home. The female victim suffered multiple facial bone fractures and a fractured eye socket. She required surgery including the installation of five plates and mesh. Her jaw was wired shut. Mr. Fensom pled guilty to aggravated assault on the day of trial.

The sentencing justice found that the Crown had a strong case and the guilty plea was to be given little weight. The justice specifically found that the accused had no remorse. The Court imposed a three-year sentence. R v Saskatchewan , 2015 ABPC 252 [ 78 ] The accused was an Indigenous female who severely beat another Indigenous female — causing severe facial injuries. Both were drunk. The victim required plastic surgery and specifically titanium plates to reconstruct her orbital bone as well as a skin graft to reconstruct the end of her nose, which the surgeon opined had been bitten off.

The victim was permanently disfigured. [ 79 ] This was a finding of guilt after trial. The accused had a tumultuous and unstable upbringing with many Gladue factors. She also had a long record, including other assaults and a prior aggravated assault for which she received a one-year sentence. Justice Fraser sentenced her to four years jail, noting that in this instance Gladue factors were subordinate to the protection of the public, as he found the accused to be a danger. He found that she had little insight into her offending and little remorse.

R v Blackrabbit , 2011 ABPC 281 [ 80 ] The accused and his brother were drinking in a bar. They got into a fist fight outside with the bar owner and the victim. The accused in the course of the fight threw the victim headfirst into a parked vehicle, causing the victim catastrophic injuries. The victim was rendered quadriplegic and had significant brain injury as well. The accused had no criminal record and had significant Gladue factors. Justice Tyndale imposed a sentence of 20 months.

Commentary on the Cases [ 81 ] Only one of the above cases is even remotely similar to the circumstances of this case — and that is Skinner. Skinner concerns an assault in the victim’s home, but no theft or robbery. None of the remaining cases occur in the victim’s home, nor do they involve the theft of the victim’s property subsequent to the assault offense. The bar fight cases are particularly unhelpful since they involve consensual fights (at least initially).

There is no suggestion that the accused intended to inflict catastrophic injuries in Blackrabbit ; in the other cases – Saskatchewan , Tourville and Fensom – the use of a weapon (knife or bottle) is at least suggestive of an intent to wound, maim or disfigure. In those cases the injuries are severe, but not catastrophic or life-altering. Some of the above accuseds have no or limited records. That is not the case here. The case which Ms. Bond submits is most on point, Rabbit , is distinguishable on a number of key points. Mr.

Rabbit was in the throes of a drug induced psychotic episode when he offended — that is not the case here. Mr. Rabbit had a very limited and somewhat dated record for minor offenses. Mr. Rabbit had one conviction for assault for which he received a fine. That most certainly is not the case here. The injuries inflicted on the complainant in Rabbit were not life altering — that is also not the case here. [ 82 ] In short, these are not similar offences committed in similar circumstances by similar offenders to those in the present case. [ 83 ] The following cases are useful for parity purposes.

R v Ervin, 2003 ABCA 179 [ 84 ] Mr. Ervin pled guilty to aggravated assault and robbery. This was a group assault. Ervin and his co-accused, Ewaskow and Glover, were bouncers at a bar. Glover was a supervisor of the other two. Gover formulated a plan to assault and rob the victim, Mr. Fox. Glover instructed Ervin to make sure that Fox remembered nothing about the assault and the robbery. Glover also told Ervin that this was an opportunity to prove himself. Glover led Fox outside the bar where the other two were waiting. Fox was knocked to the ground unconscious.

Then after he was kicked and struck multiple times in the head, his wallet was taken from him. Ervin later received some of the proceeds. Fox suffered irreversible devastating injuries to his brain. He was three months in hospital in a coma; he required surgery to save his life. He had basal and temporal skull fractures and bleeding on both sides of his brain. He was transferred to the Brain Injury Unit of Alberta Hospital in Ponoka, where he required 24-hour nursing care. His prognosis was that he will never be an independent productive member of society again.

The Court of Appeal summed up his mental status as “virtually non-sentient.” The Court noted that there were numerous aggravating factors: this was a group assault; there was planning and deliberation; the deliberate infliction of serious injuries; the breach of trust; and the failure to seek assistance when it was apparent that Fox had serious injuries. The sentencing Court gave Ervin little credit for remorse given his failure to be sworn at Glover’s preliminary inquiry; the Court of Appeal upheld that decision. Ervin was young (22) at the time of the offense; he had a minimal record.

The Court of Appeal upheld a seven-year and one month sentence over and above the 14 months of pre-trial custody he had served. The effective sentence was just short of nine years. The mastermind, Glover, went to trial and was convicted. He had a serious and related record. In R v Glover, 2002 ABQB 576 , Justice Greckol sentenced Glover to 12 years imprisonment. R v Lundgren , 2016 ABPC 138 [ 85 ] Mr. Lundgren entered guilty pleas to three robberies an aggravated assault, and an unlawfully at large. Mr.

Lundgren was on conditional release and required to reside at the Grierson Center, but never attended that halfway house. He and a female friend were staying at the Royal Western hotel. CCTV cameras at the hotel recorded Mr. Lundgren and his companion entering the complainant Mr. Belay’s room, and after a short time, leaving. Staff at the hotel attended the room shortly after and found Mr. Belay unconscious and badly beaten. Mr. Belay had severe brain injuries and at the time of sentencing was never expected to regain consciousness. Mr. Lundgren attended a nearby mall and attempted to make a withdrawal with Mr.

Belay’s bank card — this was also caught on video. He was unsuccessful. He then assaulted and robbed a 73-year-old man who was using the adjoining ATM, breaking the man’s nose in

the process. He then fled and robbed a Mac’s Convenience store nearby, stealing over $2,000.00 in cash and lottery tickets. He was arrested shortly after in a taxi in possession of the cash and lottery tickets. Mr. Belay’s blood was found on his clothes. [ 86 ] Mr. Lundgren had a horrendous childhood wherein he suffered physical and sexual abuse from his stepfather. He was subsequently placed in a series of foster homes. He developed a serious drug addiction as result of his childhood traumas. He was Indigenous and there were additional Gladue factors in mitigation.

He was 34 but had a long and unenviable record, including four prior robberies and two other violent offenses. Justice Groves imposed a ten-year sentence for the robbery of Mr. Belay and concurrent sentences for the two other robberies and the unlawfully at large; the aggravated assault was stayed. R v Hastings, 1985 ABCA 20 [ 87 ] Hastings and an accomplice gained entry to the hotel room of an older woman travelling alone. He and his accomplice then robbed her at knife point. The two, by a ruse, convinced a bellman who attended the room in response to the victim’s cry of distress that there was nothing wrong.

Hastings then beat the complainant severely and then sexually assaulted her. These last two outrages were perpetrated by him alone. [ 88 ] Hastings pled guilty shortly before trial, but not before the complainant had testified at a preliminary inquiry. Hastings had a lengthy record with multiple convictions for burglary (seven) where he had received sentences of 18 months to two years. At the time of this offense, he was on statutory release for a break and enter charge (six-year sentence) and a robbery (two years consecutive). He had multiple parole breaches on his record. He was only 32.

The Court of Appeal affirmed a sentence of 15 years. Of note, his accomplice received a sentence of eight years. R v Matwiy, 1996 ABCA 63 [ 89 ] Matwiy, Langston and Drinkwater broke into the home of a man they erroneously believed to be in possession of drugs. They were armed with a knife, baseball bat and shotgun. They confined and threatened with death the occupant and his wife, demanding money and drugs. They obtained some cash and then fled; in the course of the flight the shotgun was discharged. The couple was traumatized by the home invasion. Matwiy entered a very early guilty plea.

Matwiy was 21 when sentenced and had a related record for break and enters (four entries; eight counts), the latest of which earned him a sentence of 39 months. He was unlawfully at large at the time and on parole. He received a ten-year sentence for the robbery and break and enter charge, and one year consecutive for a firearms count. This sentence was upheld on Appeal. The Court of Appeal set the guideline sentence of eight years for home invasion robbery by a mature individual with no record.

The features of a home invasion robbery were detailed as follows: [30] We consider the following features to be the basic, essential features of a “home invasion” robbery to which this guideline applies. A mature individual with no prior record, (

a) plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to steal money or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants or any of them; (

b) arms himself or herself with an offensive weapon; (

c) enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or by otherwise forcing his or her way into the dwelling; (

d) confines the occupant or occupants of the dwelling, even for short periods of time; (

e) while armed with an offensive weapon, threatens the occupants with death or bodily harm; and (

f) steals or attempts to steal money or other valuable property.

The starting point for sentences for a home invasion robbery as we have defined it, should be eight years. [31] The use of actual force against the occupants, the causing of injuries to any of them , a prolonged detention, terrorization, the discharge of firearms, gang activity or acting in concert with others, prior record for violent offences, the theft of substantial sums of money or valuable property, are all considered to be aggravating factors. (emphasis added) [ 90 ] The above cases all have features which are different than, and in some instances more serious than the case before me.

The injuries to the victims in Lundgren and Ervin are far more serious than those to Ms. Hartman. In Ervin and Matwiy there was a group effort; in Matwiy there were weapons used and an actual forcible entry into the home. [ 91 ] Nonetheless, the violation of the sanctity and security of Ms. Hartman’s home puts this case into the Matwiy range, as do the life-altering injuries inflicted upon her. In that respect Hastings and Lundgren are somewhat similar to the present case.

Many of the aggravating features highlighted in Matwiy are present here — actual force used on the victim; severe injuries; a prior record for violent offences, and the theft of valuable property. [ 92 ] Consequently, I conclude that the sentence range for aggravated assault which counsel have suggested informs this joint submission is not correct. The sentence should be in or at the six-to nine-year range. Given that the aggravated assault occurred in Ms.

Hartman’s home, followed by theft, the upper end of that range – i.e. eight years — is fit. [ 93 ] Counsel submit that the sentence for the theft of the motor vehicle should attract concurrent time. Mr. Badger’s record contains a number of other significant property-related convictions. The second of the three groups of convictions from November of

2015 includes a theft of a motor vehicle conviction (Count 4) for which he was sentenced to two years less a day — concurrent to 10other charges. In August of 2018 he was sentenced to 405 days for four convictions for flight while pursued by police officer (s249.1(1)) and four possession of property obtained by crime offenses (s 354(1)(a). The theft of property in this case is serious; it isaggravating that the vehicle was significantly damaged. A further aggravating feature is the theft of the other property from theunconscious Ms. Hartman.

The sentence proposed 25 months is barely above that which he received for the stolen vehicle in 2015.Mr. Badger has since committed four other significant property offenses in 2018 (I surmise that the stolen property is a motor vehiclegiven the other four charges are flight from police). In this case there is no suggestion that any proof was lacking for Mr. Badger’s recentpossession of Ms. Hartman’s motor vehicle. Standing alone, the vehicle theft would attract a sentence starting at two years.

Evenconsidering the mitigation of the plea and the Gladue factors, the notion that a 25-month sentence could be proportionate for the theftand this serious aggravated assault, by this offender, in these circumstances, is untenable. CONCLUSION [94] Considering then all of the above, the proposed joint submission of 25 months is unhinged from the circumstances of theoffence and the offender in this case.

A reasonable and informed member of the public, informed of all the circumstances, including theimportance of promoting certainty in resolution discussions, would conclude that the proper functioning of the justice system had brokendown (see Cook at para 34). [95] Deterrence and denunciation are paramount here. Rehabilitation in my view is of reduced importance in this sentencing, giventhis accused’s intractable history of reoffending and breaching Court ordered supervision. I echo my colleague Justice Groves’ remarksin Lundgren — Mr.

Badger’s Gladue factors and history of trauma explain but do not excuse his violent offending. Finally, separationfrom society is an important sentencing factor here. The brutality and callousness of Mr. Badger’s behavior here clearly show thatMr. Badger is a danger to the community. [96] I conclude that a sentence of eight years is appropriate for the aggravated assault. I note that Mr. Badger received a sentenceof two years for a previous theft of motor vehicle. The sentence for the theft in this case should be a step up from that prior sentence, butit should be concurrent for the purposes of totality.

I impose a sentence of three years concurrent for the motor vehicle theft charge. [97] I also take into account that Mr. Badger will resume serving the Conditional Sentence imposed August 30, 2023, once he ison conditional release for this sentence — pursuant to s 742.7 of the Criminal Code. [98] From the eight-year sentence I will subtract three years, in consideration of the mitigating factors here — the guilty plea andthe Gladue factors. THE PRE-TRIAL CUSTODY CALCULATION [99] In their sentencing submissions on January 12th, 2024, counsel advised that Mr.

Badger had, up to that date, 513 days of pre-trial custody to credit against any sentence imposed. In preparation for the delivery of sentence I reviewed the Information and endorsements. The Court’s endorsements show that Mr. Badger’s first appearance in the Alberta Court of Justice was December 13th, 2022. The information discloses that a warrant in the first instance was issued on October 28th, 2022. That warrant was finally executedonce Mr. Badger was transported to Edmonton from Saskatchewan, where he was in custody awaiting trial on other matters. Mr.

Badger had been in custody in Saskatchewan since August 16th, 2022. On the first appearance the Crown told Justice Matchett that Mr. Badgerwould continue to be in custody in Saskatchewan until those other matters were concluded, in March of 2023. Subsequently, Crownconsented to Mr. Badger’s release on the Edmonton charges, though the cash bail was never met and Mr. Badger remained in custody. [100] Counsel confirmed on February 7th, 2024, that Mr. Badger was in custody on other Saskatchewan matters until his guilty plea to the assault with a weapon and threats charges on August 30th, 2023.

Crown advised that she had communicated with the SaskatchewanCrown and was told that Mr. Badger had not used any of his pretrial custody on his Saskatchewan matters. Ms. Bond further advised that the delay in bringing Mr. Badger to Edmonton for the December 13th appearance was that he had in that time period a number of othermatters set for trial in Saskatchewan. THE LAW: CREDIT FOR PRE-TRIAL CUSTODY [101] Section 719(3) of the Criminal Code reads as follows: Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody. (emphasis added) [102] In R v Hoelscher, 2017 ABCA [Hoelscher] the Alberta Court of Appeal held that there must be a real and substantial connectionbetween the pretrial custody and the offence for which the offender is being sentenced. [27] As with all penal legislation, any ambiguity must be resolved in a manner most favourable to the accused, while avoidingconflict with related provisions and absurd results (R v Wust, 2000 SCC 18 , [2000] 1 SCR 455 at para 34, 184 DLR (4th) 385).I conclude that within those confines the proper

interpretation of the phrase “as a result” requires that there be a logical

connection between the offence for which the offender is being sentenced and the time spent in predisposition custody, such that the former can be said to have made a real and substantial contribution to the latter. (emphasis added) [ 103 ] The Court in Hoelscher gave an example of where such a real and substantial connection might be found to exist: “in situations where bail was refused on a second set of charges (that are later withdrawn) because the accused was already on bail, it could be said that “… in part, the time spent in custody for the withdrawn set of charges (the new offences) could be attributed to the first set of charges” (those for which the offender was being sentenced) (Citing Rosenberg J.

A. in R Wilson , 2008 ONCA 510 [ Wilson ] at para 50 ). [ 104 ] The Ontario Court of Appeal in R v Barnett , 2017 ONCA 897 [ Barnett ] also commented on the factors to consider when assessing what could constitute “a real and substantial connection”: [30] What we draw from the case law is that s. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody. That relation or link can exist with more than one offence.

It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge's assessment, factored into the offender's decision to not seek bail on the charges that triggered the detention order. [31] There is no strict rule dictating what constitutes a sufficient link or relationship between the given charge and the pre-sentence custody so as to meet the "as a result of" standard.

The sentencing judge will take into account relevant factors that might include the reasons for bail having been granted on the first set of offences and denied for the second set of offences; whether bail was sought on the later offences; whether there has been revocation of the bail on the first set of offences; the impact if any of the reverse onus provisions of ss. 515(6) or 522(2) of the Criminal Code ; whether subsequent charges remain outstanding, have been withdrawn or stayed; the amount of pre-sentence custody accumulated; the nature and seriousness of the various charges; and the relationship, if any, that charges have to one another.

In sum, the sentencing judge must be satisfied that the offences upon which he is sentencing the accused have some meaningful causative connection to the accused's pre-sentence custody. [page409] [ 105 ] The case law however is very clear that time in custody on unrelated charges cannot be banked. The Court in Hoelscher noted at para 29: However, to be clear, where the predisposition custody is found not to have been the result of the offence for which the offender is being sentenced it will either be credited to the offender when sentenced for that other offence, or be lost.

Likewise, time spent in custody on unrelated charges that were subsequently withdrawn, overturned or in excess of the sentence ultimately imposed, cannot be “banked” to be utilized at a later time ( Wilson at paras 42-44 ). (emphasis added) [ 106 ] I accept counsels’ representation that Mr. Badger has been in custody since August 16 th , 2022, on his Saskatchewan charges. However, I am not satisfied by the representation that Mr. Badger has not “ used” any of his Saskatchewan custody time in his Saskatchewan matters. Mr. Badger received a Conditional Sentence on his last conviction for a violent offence.

A transcript of the sentencing is necessary to determine if the sentencing Court considered the pre-trial custody in that disposition.

Even if this custody time was not used, what connection is there between this sentencing and that custody time? [ 107 ] Since the connection between the Saskatchewan custody and the present offence is not clear, the onus lies on the defence to establish that a connection exists between the Saskatchewan pre-trial custody and the Edmonton charges and that section 719(3) of the Code applies. [ 108 ] Counsel have submitted that I should apply the Saskatchewan time to this sentence because 1) counsel have agreed to do so; and 2) the warrant issued in Edmonton on October 28 th was not executed in a timely manner, and there fore some or all of the time between October 28 th and December 13 th should be credited. [ 109 ] With regard to this first argument, Mr.

Wolsey submitted that this was supported by the dicta in the Ontario Court of Appeal decision in Barnett (cited above). However, in argument before me, Mr.

Wolsey only cited the headnote, which reads as follows: The onus will be on the accused to show the connection and that s. 719(3) applies, which it may do by agreement of counsel , by filing a transcript of reasons for detention or of a statement made by counsel or the accused after subsequent offence that bail not being sought because accused was on bail for earlier offences when current offences took place or by calling evidence. [ 110 ] The headnote is a digest prepared by the service which publishes the case.

It is not the product of the Court which wrote the judgement but a succinct and valuable distillation of that judgment. The Court of Appeal of Ontario did not say that counsel could, by agreement circumvent the structures of section 719(3) . What the Court suggested was that counsel should not be adversarial in making a determination of whether or not there is a connection. The full paragraph reads as follows: [ 32] The inquiry into the connection between the charge on which an accused is being sentenced and the reasons for pre-sentence custody should not become complicated and unnecessarily adversarial.

The Crown should acknowledge the connection if that connection is clear on a fair assessment of the situation. Defence counsel should also be allowed to advise the court of relevant matters such as the reasons bail was not sought in respect of subsequent charges. In some cases, the defence will have to call evidence to establish the necessary connection. A transcript of the reasons for detention may serve that purpose in some cases.

Ultimately, where the connection between the custody and the charge on which the accused is being sentenced cannot be readily inferred from the circumstances, the onus will be on the accused to show that the connection exists and that s. 719(3) applies: R. v. Perkins , [2017] O.J. No. 871 , 2017 ONCA 152 , at para. 32 .

[ 111 ] The agreement which the Court refers to is between counsel on the circumstances which constitute the connection between the sentencing and the pretrial custody. I do not understand the Ontario Court of Appeal to be saying that counsel can circumvent the application of section 719(3) by agreement. That would be absurd. [ 112 ] With regard to the second argument, I have no case law which support the argument advanced by counsel. Nor do I have any facts from which I could make a determination of what constitutes a reasonable time within which to execute an out of province warrant.

Complicating that determination in this case is the fact that the accused had trials in Saskatchewan in the time period between October 28 th , 2022, and the first appearance in Edmonton on December 13 th 2022. The timing of those trials would of course be a factor to consider in assessing the reasonable time to execute the warrant. It would not have been prudent for the Saskatchewan authorities to transport Mr. Badger to Alberta for a first appearance if doing so would delay the Saskatchewan trials.

In the circumstances, counsel have not provided me with sufficient information to make a determination on this point. The Defence has not met the onus to establish a connection between the Saskatchewan custody time and the sentence in this case. [ 113 ] Consequently, I am not satisfied that the Saskatchewan pre-trial time is as a result of the Edmonton charge, and I decline to give Mr. Badger any credit for the Saskatchewan pre-trial custody. SENTENCE [ 114 ] Mr. Badger has been in custody on the matter before me since December 13 th , 2022 — 428 days. Enhanced that is 642 days — or one year and 277 days.

I will subtract that time from the five-year sentence. That leaves three years and 88 days left to serve. Pursuant to

Section 109 of the Code , I prohibit Mr. Badger from possessing firearms, ammunition or explosives for life. [ 115 ] The restitution request for the vehicle repairs is well documented. Pursuant to s 738, I direct that Mr. Badger will pay forthwith the sum of $10, 997.94, to the Clerk of the Court in favor of Ms. Hartman. With regard to the claim for lost income, I have not been provided with sufficient documentation to make a restitution order for lost income in 2022 or 2023. The amount of the lost income is not readily ascertainable. Given that, it appears that Ms.

Hartman will suffer ongoing economic impairment and hardship as a result of the assault, this is plainly a matter for a civil Court. I decline to make any further restitution order. [ 116 ] Mr. Badger will forthwith provide a sample of his DNA. Mr. Badger is prohibited from communicating directly or indirectly with Ms. Hartman while he is serving his sentence pursuant to s 743.21 of the Code . [ 117 ] The Victim Fine Surcharges are waived. Heard on the 5 th day of September, 2023, the 12 th day of January, 2024, the 16 th day of January, 2024 and the 6 th day of February 2024.

Dated at the City of Edmonton, Alberta this 13 th day of February, 2024. Appearances: Maxine Bond for the Crown David Wolsey for the Accused F.K. MacDonald A Justice of the Alberta Court of Justice