R. v. Harper, 2022 MBPC 37

CITATION: R. v. Harper , 2022 MBPC 37 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) P. Cooper for the Crown - and - ) ) Dale Ward Harper ) ) P. Smith for the Accused Accused ) ) Reasons for Decision ) Delivered: August 24, 2022 L. MARTIN, P.J. INTRODUCTION [ 1 ] This is a sentencing decision for the offences of dangerous operation ( s. 320.13 of the Criminal Code , the Code ) and assault with a weapon (s. 267(

a) of the Code ) arising from an incident of road rage. The accused has pleaded guilty to these offences. The issue for the Court is the appropriate sentence. CIRCUMSTANCES OF THE OFFENCE [ 2 ] At approximately 2:15 p.m. on December 17, 2020, the victim Kiana Jobo and her father Jomar Jobo, were driving westbound on Sargent Avenue in Winnipeg. The accused Dale Harper (Harper), was driving on the same road in the opposite direction. The two vehicles crossed paths at the intersection of Sargent and Milt Stegall Drive. Jobo was attempting to turn left onto Milt Stegall but was blocking the intersection.

Harper beeped his horn and Jobo hand-gestured in a manner that Harper found impolite. He became angry and drove after Jobo as she turned onto Milt Stegall, ramming into her vehicle and causing it to spin around. Jobo drove away but Harper pursued her for close to 10 minutes over approximately three kilometers through a busy

section of Winnipeg, ramming her vehicle several more times. Twice, he caused the victim’s vehicle to spin around. Once, he pushed her into another vehicle and into the median. The incident ended as the victim drove into oncoming traffic to the nearest police station and Harper drove home. He was arrested shortly thereafter. He immediately admitted his actions, stating that he didn’t know what came over him and that he had never done anything like that before. VICTIM IMPACT [ 3 ] The emotional and psychological impact to the Jobos as a result of this incident has been significant.

They had been on their way to the bank to sort out the funeral costs for Kiana’s grandparents who had recently passed away from COVID when this incident occurred. The Jobos read out their victim impact statements in court. It is clear that they are extremely angry at Harper. They believed at the time that Harper meant to kill them as they fled in their vehicle, calling 911 and seeking assistance from other drivers. Kiana Jobo continues to experience a significant amount of distress as a result of the offending. She shared that the event has had a profound impact on her.

It has changed her sense of security, well-being and world vision. She also lost her 2008 Hyundai Elantra that was written off due to the amount of damage to the body and passenger door window. HARPER’S MORAL CULPABILITY [ 4 ] Harper is a 59-year-old man with no prior or subsequent criminal involvement. The only highway traffic offences he has had during his lifetime are two speeding tickets from 1999, and one failure to obey a stop sign in 2003. [ 5 ] He was born and raised in Winnipeg. His parents were extremely strict and engaged in both physical and psychological abuse.

As a result, he has been mostly estranged from his birth family. He has spent his entire career in the military, working until August 2020 when he retired because of various health issues. He has been in a long-term supportive relationship with his wife since 2010. [ 6 ] By all accounts, Harper’s behaviour on December 17, 2020 was an anomaly and completely out of character. He is described as a gentle, caring and giving individual, assisting his neighbours regularly and volunteering with the Special Olympics since 2011.

He is assessed as a low risk to re-offend with a recommendation that he attend counselling to address past trauma as well as family dynamics and dysfunction. [ 7 ] Harper is at a loss to explain his conduct on December 17, 2020. He immediately contacted a psychologist for help and engaged in counselling. The counselling sessions addressed anger management issues to assist in understanding what caused his anger, the stages of an emotional cycle, how one may lose their sense of rational thought when triggered emotionally and what to do to maintain cognitive awareness at such times.

Harper is deeply remorseful for his actions. He apologized in court and shared that every night he

wakes up at 2:00 a.m. and ponders his actions. POSITIONS ON SENTENCING [ 8 ] The Crown asks the Court to sentence Harper to a total of three years of incarceration – two years for the assault with a weapon and one year consecutive for the dangerous operation. He says that there is no case law similar to the facts at bar or that comes close to Harper’s high degree of moral culpability.

He urges the Court to take judicial notice of the high incidence of road rage in Winnipeg and impose an exemplary sentence to send a clear message to the public that road rage will not be tolerated. [ 9 ] Defence submits that an appropriate sentence is nine months of custody.

She agrees that there is no case law on par with the present facts but says that the sentencing range suggested by the Crown is inappropriate and not consistent with the sentencing range for dangerous operation. [ 10 ] As counsel provided the Court with no case law at the sentencing hearing, the Court inquired as to how counsel arrived at their sentencing submissions and asked that they provide the cases they relied on.

Crown counsel advised that he was ultimately guided by the sentencing range for impaired cause death as he felt that the case law for dangerous operation did not adequately reflect Harper’s moral culpability. The Crown forwarded R. v. Letkeman , 2021 MBCA 68 (a case of criminal negligence causing bodily harm which the Court had inquired about) to the Court after the sentencing hearing but did not provide any authority supportive of his sentencing recommendation. Defence counsel forwarded three cases: R. v. Shuvera , 2022 MBPC 27 ; R. v. Garson , 2014 ONSC 978 ; R. v. Davidson , 2013 ONCJ 281 .

SENTENCING PRINCIPLES AND OBJECTIVES [ 11 ] Ss. 718 and following of the Code set out the purpose, objectives and principles of sentencing. Fundamentally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1), and take into consideration any aggravating or mitigating circumstances.

Sentences should be similar to other sentences imposed on similar offenders, for similar offences committed in similar circumstances (s. 718.2). [ 12 ] As the Crown proceeded by indictment, the offence of dangerous operation is punishable by a maximum 10-year sentence. Although all sentencing options are generally available, in this particular case, because Harper has also pleaded guilty to assault with a weapon, a conditional sentence order is not available (s. 742.1(e)(iii)).

The offence of assault with a weapon is likewise subject to a maximum 10-year sentence. [ 13 ] Dangerous operation offences generally call for an emphasis on the sentencing objectives of denunciation and deterrence. S. 320.12(

b) of the Code explains that “the protection of society is well served by deterring persons from operating conveyances dangerously . . . because that conduct poses a threat to the life, health and safety of Canadians” ( see also R. v. Proulx , 2000 SCC 5 ; R v. Bhalru , 2003 BCCA 645 ). As noted in R. v. Ruizfuentes , 2010 MBCA 90 at para 33 , this means that the sentence: . . . must express society’s condemnation of the accused's ways and serve to dissuade others from engaging in similar conduct.

In such cases, an accused is "punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity" (see Vancouver (City) v. Ward , 2010 SCC 27 , at para. 29 ). [ 14 ] The mens rea , or mental element, of the offence of dangerous operation is objective. It captures any behaviour that represents a marked departure from the norm or expected standard of the reasonably prudent driver.

It encompasses a wide range of conduct, so the facts giving rise to the particular offence before the Court are of the utmost importance. As noted in R. v. Eckert , 2006 MBCA 6 at para 16 : In passing sentence, the judge must assess the moral blameworthiness involved in each case. It is not sufficient to look only at the tragic consequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentence should express society’s denunciation of the conduct involved.

Therefore, the nature of the blameworthy conduct that led to the consequences must be considered. [ 15 ] The offence of assault with a weapon requires an intentional application of force.

As noted in Clayton Ruby et al., Sentencing , 10 th ed. (Markham: LexisNexis Canada Inc., 2020) at para 23.235, these charges rarely deal with bodily harm, “but rather with the increase in danger accompanied by the threatening use of a weapon”. [ 16 ] The level of moral culpability of an offender is determined by considering the intentional risks taken, the degree of harm that they have caused, and the extent to which their conduct deviates from the acceptable standard of behaviour ( Bhalru at para 28 ).

CASE LAW [ 17 ] Case law indicates that there is a significant range of sentences for dangerous operation, anything from fines and non-custodial sentences to a period of incarceration which can exceed two years for individuals with criminal records. “Where no death or bodily harm has resulted, sentences rarely exceed a few months incarceration” ( Sentencing at para 23.891). Where however, bodily harm results, a custodial sentence of up to two years less a day is the range ( R. v. Ali , 2015 MBCA 64 ). Most assault with a weapon offences involving a motor vehicle also involve dangerous operation offences.

Though sentences for assault with a weapon vary, they tend to be higher when “committed alongside other offences, the accused has a previous criminal record, or a high degree of violence is used” ( Sentencing at para 23.237). Although there is no reported case which mirrors the fact scenario of the case before the Court, there is a plethora of dangerous operation cases, some of which also involve the use of a motor vehicle as a weapon. A review of a sample of those cases assists with determining where this case falls on the spectrum.

Dangerous Operation [ 18 ] In R. v. Blackburn , 2004 Carswell Ont 1530 (ONCA) , the accused, an off-duty police officer, was convicted of dangerous operation and sentenced to 30 days imprisonment on

summary conviction. In a fit of road rage, the accused drove up behind the victim’s vehicle on Highway 401 outside of Toronto at a high rate of speed. He flashed his lights and moved his vehicle back and forth from lane to lane attempting to pass. When he succeeded in doing so, he pulled in front of the victim and applied his brakes. He then moved into another lane, passing the victim again, this time stopping in front and causing a collision. The accused got out of his vehicle, approached the victim’s vehicle and tried to open her car door. When the victim drove off, the accused got into his vehicle, drove up beside her and flashed his police badge. The

summary conviction judge found that the use of the officer’s police badge was a breach of trust which increased the sentence. The Ontario Court of Appeal upheld the 30 day sentence, commenting that the accused’s pattern of driving was aggressive and had endangered the public. Dangerous Operation and Assault with a Weapon [ 19 ] In R. v. Bradley , 2016 ONSC 2003 , the accused was found guilty of dangerous operation and assault with a weapon after he drove his vehicle into a pedestrian with whom he had had a prior dispute.

The accused had a prior criminal record with 18 convictions, but none for physical violence against a person. The accused was sentenced to a 90-day sentence which was upheld by the appellate court. [ 20 ] In R. v. Greiner , 2021 ONCJ 357 , the accused pleaded guilty to two counts of assault with a weapon and one count of dangerous operation. The accused was stopped by the police for routine highway traffic matters. When he opened the door to his vehicle and one of the officers grabbed onto the door, the accused shut it, trapping the officer’s fingers.

He then put the vehicle into reverse and slammed into one of the police vehicles where another officer was in the driver’s seat. The accused then drove forward, with the trapped officer running alongside the vehicle. Luckily, that officer was able to pry open the door and free himself. The accused drove off and when subsequently located by the police, accelerated his vehicle in the direction of another officer several times, ramming four police cruisers before driving off.

When his vehicle came to rest in a snowbank, the accused exited the vehicle armed with a saw and a tire-iron, swinging at a police officer, making contact in the upper body, neck and head. Two of the police officers suffered physical sequelae and four police cruisers had significant damage as a result of the incident. The accused was a relatively young man with no criminal history but with a long history of mental health issues, most of which were untreated prior to the incident. Since the offences, he had actively sought help and undertaken a course of treatment.

The Court noted that given the accused’s mental health, which attenuated the principles of denunciation and deterrence, a nine-month conditional sentence order was appropriate followed by a period of two years of supervised probation. Dangerous Operation, Assault with a Weapon, Criminal Negligence Causing Bodily Harm and Flight from Peace Officer [ 21 ] In Davidson , the accused pleaded guilty to dangerous operation, assault with a weapon, criminal negligence causing bodily harm and flight from police. The accused had become impatient with the victim’s attempts at parallel parking.

The two engaged in a heated verbal exchange, with the accused threatening to come back and kill the victim. The accused drove away but then made a U-turn and sped back toward the victim, ramming the rear of his van which hit the victim. The accused left the scene, almost hitting another vehicle. When the police attempted to pull the accused over, he sped off and engaged the police in a high-speed pursuit in a residential area, driving the wrong way on a one-way street and through stop signs, endangering others. The accused had a prior conviction for assault causing bodily harm.

The victim suffered significant injuries and required surgery. The Court noted the significant mitigating factors, including the accused’s guilty pleas, remorse and rehabilitative efforts, his young age of 24, and a positive pre-sentence report. The Court sentenced the accused to a seven-month concurrent sentence for the criminal negligence causing bodily harm, assault with a weapon and dangerous operation, and two months consecutive for the offence of flight from police followed by a period of 18 months of supervised probation. Dangerous Operation Causing Bodily Harm [ 22 ] In R. v.

Mann , 2014 BCPC 138 , the accused pleaded guilty to dangerous operation causing bodily harm. The Crown proceeded by indictment and the accused was sentenced to 90 days for striking a pedestrian with his vehicle while she was crossing the intersection. The victim suffered significant injuries, including a broken arm, two sprained ankles, a number of scrapes and bruises, back and neck pain, as well as significant emotional sequelae including insomnia, depression, and general anxiety. The accused had no prior criminal conviction but a lengthy motor vehicle record.

He also suffered from schizophrenia. [ 23 ] In Shuvera , the accused pleaded guilty to dangerous operation causing bodily harm after driving at a high rate of speed and rear-ending the victim. The accused had consumed drugs prior to the incident, but there was no evidence that he was impaired at the time of the accident. The victim required a lengthy period of hospitalization and therapy and was left with multiple long term physical injuries which included loss of balance, 60 percent loss in his left arm function, slurred speech, short term memory loss, and difficulty with concentration and swallowing.

The emotional impact to both the victim and his wife were significant, including the victim’s loss of freedom and ability to drive, the curtailing of retirement travel plans, and resulting depression. The accused was 19 years old at the time of the incident with no prior criminal involvement and no subsequent involvement four years after the incident. He had had a difficult upbringing and was suffering from mental health issues at the time of the incident.

The Court imposed an eight-month custodial sentence followed by two years of supervised probation. [ 24 ] In Garson , the accused was sentenced to an 18-month custodial sentence and two years of supervised probation after being convicted of dangerous driving causing bodily harm. The accused drove toward the victim, veering to the side at the last minute but hitting the victim nonetheless. The victim suffered significant injuries. Earlier that same day, the accused chased the victim’s adult son who was riding a motorcycle, and struck its back end with his vehicle.

The accused was 27 years old with a prior record for impaired driving and a difficult background.

Dangerous Operation Causing Bodily Harm and Assault with a Weapon [ 25 ] In R. v. Munden , 2021 BCPC 292 , the accused was convicted of assault with a weapon, dangerous operation causing bodily harm and failing to remain at the scene of an accident. The Crown proceeded by

summary conviction. The accused and the victim were previously neighbours who were not on good terms. On the day of the incident, the accused accelerated at the victim who was on his bicycle, ultimately striking him then driving his vehicle on the sidewalk, narrowly missing a parked car before driving away. The accused was 51 years of age with a prior criminal record which included assaultive behaviour.

The Court found that the accused expressed no remorse or insight into his offending and sentenced him to 15 months of custody for the dangerous operation causing bodily harm, a concurrent sentence of six months for assault with a weapon, and a consecutive sentence of six months for failing to remain at the scene of an accident. Dangerous Operation and Aggravated Assault [ 26 ] In R. v. Kanthavel , 2021 ONSC 57 , the accused was convicted of aggravated assault and dangerous operation of a motor vehicle.

On five separate occasions over a period of less than a minute, the accused repeatedly hit two pedestrians with his vehicle. The accused was 35 years of age with a prior record that included dangerous operation.

The Court held that given the gravity of the offence, the degree of the accused’s responsibility, his criminal record and the consequences of the crime, the imposition of an exemplary custodial sentence was required despite the accused’s strong social network, excellent prospects for rehabilitation, the spontaneous unplanned nature of the incident, his dependent family, the gap in his record and the amount of time he had spent under house arrest. The Court imposed a sentence of three years for the aggravated assault and a concurrent 12-month sentence for dangerous operation.

ANALYSIS [ 27 ] In my view, the circumstances of the offences before this Court require a custodial sentence to appropriately reflect the sentencing objectives of denunciation and deterrence. Drivers cannot be allowed to use their vehicles as weapons simply because they let their anger and frustration get the better of them. [ 28 ] In considering the length of the sentence, the Court is guided by the circumstances of the offence and the offender so as to arrive at a proportionate sentence. The circumstances of the offending in this case were certainly frightening and dangerous.

Though there was no physical injury to the Jobos, the emotional and psychological impact, particularly as regards Kiana Jobo, has been long- lasting. The reasons for Harper’s conduct on that day have not been clearly articulated. Given his lack of prior record, upstanding pro- social conduct during his life and uncharacteristic actions, together with the counselling report filed in court, I find that his conduct was not planned. Rather, it was a precipitous, uncontrolled burst of anger that took Harper some time to reign in.

As a result, I disagree with the Crown that each collision with Kiana Jobo’s vehicle was planned and deliberate.

In weighing and assessing the evidence before the Court, I find that Harper’s moral culpability is in the middle of the spectrum. [ 29 ] There are several aggravating circumstances in the present case: - The duration of the offending, both in terms of time and distance; - The use of Harper’s vehicle as a weapon; - The number of times Harper rammed the victim’s car; - The use of his F-150 truck, which was larger in size than the victim’s Hyundai Elantra; - The force applied in ramming the vehicle; - The involvement of another vehicle; - The significant emotional and psychological impact to the victims; and - The victim’s car was written off. [ 30 ] There are also several mitigating circumstances: - Harper has no prior or subsequent criminal involvement; - He is extremely remorseful; - He cooperated with the police and entered a guilty plea; and - He immediately took rehabilitative steps to understand his conduct and address it. [ 31 ] While there does not appear to be any reported case law that is at parity with the case at bar, there is a spectrum of conduct, some more, and some less, egregious.

The type of conduct most consistent with Harper’s is that in Blackburn , Greiner and Davidson . It is conduct where the accused drives aggressively and causes a collision in circumstances where there is potential to result in serious injury. However, Blackburn was decided when the maximum available sentence was five years instead of 10 and it did not include an assault with a weapon. It was also a case where the conduct was less egregious despite including a breach of trust. The facts in Greiner are much more serious, however the accused’s mental health concerns attenuated the principles of denunciation.

As for Davidson , the conduct was shorter in duration but resulted in bodily harm and included more offences. [ 32 ] In this case, I find that denunciation and deterrence are paramount sentencing principles. Although less weighty, rehabilitation

also comes into play given Harper’s unresolved family trauma and his otherwise pro-social life. I have not taken judicial notice of a prevalence of road rage in Winnipeg as there is no evidentiary foundation for such a finding. [ 33 ] Balancing the foregoing, I find that a concurrent 10-month custodial sentence followed by 12 months of supervised probation is appropriate.

Consecutive sentences are not warranted given the interrelatedness of the offences. [ 34 ] The terms of the Probation Order are: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so by the Court; - Notify your Probation Officer or the Court before you change your name or address, and promptly tell your Probation Officer or the Court if you change your job or occupation; - You must report to Probation Services by calling 1-800-334-8792 within two working days of your release from custody.

After you first report, you must continue to report and be supervised by your Probation Officer when and how you are told to by your Probation Officer; and - You must attend, participate in and complete all assessments, programming and counselling as directed by your Probation Officer. - You must not contact or communicate with the victims. - You must not attend where the victims live, work, worship, or their place of education. [ 35 ] There are also several ancillary orders: - A s. 487.04 primary designated DNA order for the two offences of assault with weapon, to be taken while in custody. - A three-year s. 320.24(4) order of prohibition from operating a motor vehicle in Canada. [ 36 ] Costs and surcharges are waived.

Original signed by Judge Martin L. MARTIN, P.J.