R. v. Hambleton, 2021 BCPC 130

Citation: R. v. Hambleton 2021 BCPC 130 Date: 20210401 File No: 49163-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KELLY OSCAR HAMBLETON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Crown: A. McLellan and M. Hopkins Counsel for the Defendant: L. Cooper Place of Hearing: Prince George , B.C. Dates of Hearing: January 27, 28, February 24, April 14, July 24, October 13, 2020, and January 26, 2021 Date of Judgment: April 1, 2021 [ 1 ] THE COURT: This is on file number 49163.

Kelly Oscar Hambleton comes before the Court today for sentencing, having been found guilty on January 26, 2021, of the offence of assault causing bodily harm. [ 2 ] The circumstances surrounding that offence are set out in the decision that I granted on January 26, 2021, which will eventually be put on the Provincial Court database, so I will not dwell on the circumstances in detail. I will however, in

summary fashion, touch on them because those facts impact the decision I am going to make today.

[ 3 ] It was St. Patrick's Day at a local Irish-themed pub. Mr. Hambleton and his wife and their friends were at the pub. Mr. Landon, the victim, his wife, and their friends were at the pub. [ 4 ] As I stated in my earlier reasons, everybody was consuming alcohol. How much they consumed was in contention, in some respects. Most of the witnesses seemed to underestimate how much they were drinking and overestimate what other people were drinking, because everybody commented on everybody else's drinking.

But being the festive holiday that it was and in the location that it was being held in, alcohol was freely flowing. [ 5 ] That alcohol consumption, as I found in the trial decision, undoubtedly had an influence on different witnesses' ability to observe and, subsequent to observation, recall exactly what happened. [ 6 ] There was an interaction between Mr. Landon and Ms. Hambleton. As I stated in the trial decision, it is not necessary for me to make a determination beyond a reasonable doubt as to exactly what occurred between them. But, as my trial decision pointed out, Ms.

Hambleton was clearly upset by whatever went on between her and Mr. Landon. And her distress was as a result of far more than, as was described by one witness in the trial, a slap on the butt between friends. She came back to her table in a state of high anxiety, perhaps even anger, and she certainly was greatly affected. [ 7 ] Mr. Hambleton, in his evidence at trial, said he had never seen his wife in that condition, and in fact he said, but for the fact the way she was acting, he would have had a hard time believing that anybody would have touched her in that fashion.

But he believed his wife as a husband should. [ 8 ] He believed that she had been sexually interfered with, and he determined that he was going to go over to the perpetrator, who was pointed out to him by Ms. Hambleton, and obtain what he described as an apology. Ms. Hambleton did not ask him to do that. In fact, in her evidence, she said all she wanted to do was go home because she was embarrassed. Mr. Hambleton made his way over to Mr. Landon's table. [ 9 ] I pause momentarily to note that Mr. Landon was a gentleman of smaller proportions than Mr. Hambleton. Mr.

Landon was described as being approximately five-foot-eight and 130 pounds. Mr. Hambleton described himself as being much larger than that; a large, fit, six-foot-six-inch tall, 280-pound man. [ 10 ] I have no doubt that as Mr. Hambleton was walking across the room to where Mr. Landon was sitting, given his size, he expected first of all that there would be no difficulty. He would be able to speak to Mr. Landon and, by virtue of his presence, would be able to convince Mr. Landon to come and provide an apology to Ms. Hambleton. [ 11 ] Something happened from the moment when he arrived until Mr.

Landon lay slumped in his seat, with a multi-stitch cut above his lip. As I said in the trial decision, it is not required of me to determine whether it was a punch or a shaking or some combination, but it was sufficient for me to determine that Mr. Hambleton placed his hands on Mr. Landon without his permission and made some actions that caused an injury to Mr. Landon. After that event occurred, Mr. Hambleton gathered up his belongings, and he and Ms. Hambleton left the premises. [ 12 ] Mr.

Hambleton acknowledged during the trial that there were other ways that he could have resolved the issue, including having the employees of the pub deal with Mr. Landon, perhaps even calling the police, pointing out Mr. Landon and having the police take a statement immediately from Ms. Hambleton. [ 13 ] Ms. Hambleton did file a complaint against Mr. Landon and the police investigated that and forwarded their recommendations to the Crown. The Crown chose not to pursue criminal charges against Mr. Landon.

That does not mean that he was blameless that evening, however, because the Crown's charge approval standard is quite high. [ 14 ] Mr. Hambleton elected to have a trial, as is his right under Canadian law. The fact that he wished to plead not guilty and have a trial conducted, and then having been found guilty, is not an aggravating factor. Every citizen is entitled to have the Crown prove their case beyond a reasonable doubt. [ 15 ] After I found Mr. Hambleton guilty, a presentence report was prepared. That presentence report was, without exception, exactly as I contemplated it might be given the trial evidence.

We have, in Mr. Hambleton, a man in his middle forties at the time of the event, with no criminal history, and with an excellent reputation among his family and friends for being a fair, honest, and a gentle person. And in many respects, that is good for the rest of the community because we would not want a person of Mr. Hambleton's dimensions and strength lashing out at others whenever he felt aggrieved. [ 16 ] I made a comment in the trial decision that there was perhaps, in Mr. Hambleton's mind at the time, a level of chivalry with regard to his protective views of his wife.

That in itself would still not have been a reason to go over and strike or shake another person that you thought had aggrieved her. [ 17 ] So what do we do in these circumstances? A charge of assault causing bodily harm has a wide range of possible sentences. It can range at the top end, if the Crown had proceeded by indictment, 10 years. If the Crown had proceeded summarily, as they did here, two years less a day. The minimum sentence could be an absolute discharge. [ 18 ] The Crown and defence counsel placed before me a joint submission for a conditional discharge.

The Crown provided the Court with five cases, none of which defence counsel contested. [ 19 ] R. v. Carroll , a decision of the B.C. Court of Appeal, found at 1995 Carswell BC 70 , talks about a situation of an injury during a soccer game which occurred suddenly without warning or provocation. The victim suffered damage to their face requiring reconstructive surgery, and the accused was first levied a fine, and a conditional discharge with a period of probation. The Court of Appeal then varied the decision to a conditional discharge only.

[20] R. v. Miletic, found at 2020 BCPC 154, a decision of my brother Judge Sudeyko, was a similar situation, an injury during a soccergame. In that case the accused, much like Mr. Hambleton, was in his forties with no prior criminal record, and was steadily employed.He was convicted of assault causing bodily harm and given a conditional discharge with one year probation. The injury in that case waswhat Judge Sudeyko described as a "sucker punch.” That is not too far off what happened to Mr.

Landon in the sense that, if it was apunch, he would not have been expecting it, and he certainly did not expect to be lifted out of his chair and shaken like a rag doll. [21] In R. v. Miletic, Judge Sudeyko talked about the principles of sentencing. They include the provisions of s. 718 through 718.3 ofthe Criminal Code, and they provide for denunciation, deterrence, separating offenders from the community, and providing reparations.But each of those factors has to be weighed within the circumstances of the case and taking into account the circumstances of theoffender.

And in addition, I have to keep in mind proportionality, looking at the gravity of the offence, the degree of responsibility of theoffender, and the mitigating and aggravating factors that might stand out in any particular case. [22] The offence here was grave, and Mr. Hambleton was highly responsible for what occurred to Mr. Landon. This was in a publicplace. There is the difference in size between Mr. Hambleton and Mr. Landon. There are reasons behind why Mr. Hambleton went overto engage Mr. Landon in the first place.

Those are all aggravating factors. [23] There are mitigating factors, however, and the Crown has quite fairly set those out. Mr. Hambleton has no criminal history, he isa pro-social person, and I do not diminish that at all. There have been no issues, either before or after this event, with Mr. Hambletonacting inappropriately in the community. Everybody who was consulted for the presentence report notes that this was out of character forMr. Hambleton. There was no weapon involved and it was, in many respects, a very dynamic situation that rapidly went from Mr.Hambleton's intention to obtain an apology to Mr.

Landon being injured. [24] I also want to comment on one further issue, and that is what judges and lawyers refer to as the Jordan situation. R. v. Jordan2016 SCC 27, is a decision of the Supreme Court of Canada that says that if there is too much of a delay in prosecuting a case thatcannot be properly attributed to the defendant, whether it be systemic delay or delay on the part of the Crown, the defendant may beentitled to a judicial stay of proceedings. [25] Now I do not know whether, at the end of the trial, Mr. Hambleton and Mr. Cooper had that case in mind, but I raised it becauseI was concerned.

There were delays, some of them occasioned just by the Court system and one of them occasioned by change of Crownbecause the trial Crown, very near the time we were supposed to be wrapping this matter up by way of submissions, took her leave tohave a child. Of course that delay would have not been occasioned had there not been an earlier occasion when Mr. Cooper, counsel forMr. Hambleton, had to withdraw for a day because of illness.

So there were all sorts of things that could have played into a Jordanapplication and it may or may not have been successful. [26] But that situation has been commented on by the court in the case of R. v.

Spencer, an Ontario Court of Appeal decision, found at2004 ONCA C39850, which touches on that directly, where the court says at paragraph 41: Delay in the completion of the trial process can be a mitigating factor on sentence, if the delay is lengthy and beyond the control of theoffender, or if there is delay attributable to Crown conduct. [27] Both of those are present here, and so that adds an additional mitigating factor to the issue of sentence. [28] The Crown has also provided the case of R. v. J.S., found at 2020 BCPC 213, where the court deals with how to interpret theleading case of R. v.

Fallofield, found at (BC CA), 1973 6 WWR 472, a decision of the B.C. Court of Appeal. And itsays, before a conditional discharge can be provided: The discharge must be in the best interests of the accused . . . -- and clearly it is in almost every accused's best interest not to have a criminal record. . . . and A discharge must not be contrary to the public interest. [29] It is what “public interest” means that my sister Judge Flewelling dealt with in the J.S. decision. Judge Flewelling, at paragraphs43 and 44, first quotes from R. v.

Li, a 2019 BCSC 648 decision, where Justice Brundrett said this: Moreover, while the term "public interest" is not defined in the Criminal Code, it is fair to say that it encompasses broader considerationsin addition to deterrence such as an offender's mitigating circumstances . . . his or her character . . . the community's attitude towards theoffender's conduct . . . whether the crime was committed as a matter of impulse . . . and the offender's moral blameworthiness . . . A morecomprehensive

interpretation of the public interest is consistent with the principle in Fallofield that while the deterrence of others mustbe given due weight, it does not preclude the judicious use of the discharge provisions. [30] Judge Flewelling goes on to say at paragraph 44: An assessment of the public interest requires a nuanced and contextual assessment of a variety of factors, not focussed on any oneparticular objective of sentencing.

It would be an error, for example, to place an undue amount of weight on the need for generaldeterrence without also considering and assessing the circumstances of the offender and the offence. Moreover, a judge will err if shedoes not fully consider public interest . . . [31] The J.S. case was an unlawful confinement of a person that went on for some time. At the end of the day, Judge Flewellingconditionally discharged the accused. [32] Finally, the Crown has provided the case of R. v. C.Z., a decision of my sister Judge Doulis, found at 2021 BCPC 25. It has

nothing to do with this case as far as the facts are concerned. Judge Doulis pointed out that, because the trial had been held, the submission cannot be considered to be a joint submission, as contemplated in R. v. Anthony-Cook , 2016 SCC 43 . Judge Doulis found that, but for the thorough and thoughtful submissions on the law and the facts on the matter by Crown and defence, she would have imposed a more "intrusive sentence", the words she used, on the accused before her. [ 33 ] I take into account the events that occurred on March 17, 2018, the prelude to the offence that led Mr.

Hambleton to act by going over to Mr. Landon's table, the fact that what occurred at Mr. Landon's table was very brief, and that it resulted in an injury to him. [ 34 ] Mr. Landon says in his Victim Impact Statement he does not want to have anything further to do with Mr. Hambleton and that he is now afraid to go out to pubs because of the incident. That may well be his view of things. I would note, however, that the Victim Impact Statement was signed only a few months after the incident, and here we are three years down the road, and I do not really know exactly what Mr.

Landon's views are, other than I am sure he does not want to cross paths with Mr. Hambleton again in the future. [ 35 ] I have considered the aggravating and mitigating factors laid out by the Crown and defence, and as I have found them. I have also considered the very positive presentence report, and the fact that Mr. Hambleton has no criminal history. [ 36 ] Based on all of that, it is not contrary to the public interest to grant Mr. Hambleton a conditional discharge. It certainly is in his best interests.

I do not know whether, given his employment, he needs to be bonded or anything like that, but a criminal record, because he is a joint citizen of two countries, might interfere with his ability to travel. A criminal record might interfere with his ability to be promoted within the organization in which he works.

I do not know that, but those are additional reasons why a conditional discharge would be appropriate. [ 37 ] I do, however, disagree with the Crown and defence counsel with regard to some of the terms and conditions set out by them in their submissions with regard to the conditional discharge. [ 38 ] First of all, I disagree with the length of it. Mr. Hambleton has been dealing with this matter since the day in question. During the trial he described during the affect this case has had on his relationship with his wife and their general living. That is not to diminish that Mr.

Landon has lived with it and he is the one with the scar, but I was cognizant of Mr. Hambleton's struggles when he gave his evidence about how this has affected him and has been affecting him for some time. [ 39 ] Therefore, the conditional discharge, in my view, can be for nine months. That will take Mr. Hambleton up to the end of this year, and I am sure he will be happy to be done with the criminal justice system by then. [ 40 ] I am also not going to impose a counselling provision. I accept what the Crown says, that Mr.

Hambleton acknowledges that his temper got the best of him, but the best the Crown can point to is that one occasion in 43 years of Mr. Hambleton's life. If anything, I am sure he has had struggles and confrontations throughout his life that might have caused him to become angry and he has managed to deal with them without lashing out at people, and I am not sure that any counsellor could tell him anything more than what he already knows, which is that on that day, he did not react as he would have expected any other citizen to react in a public environment like the pub. [ 41 ] Mr.

Hambleton, I am going to grant you a conditional discharge.

I will briefly tell you that the difference between that and a suspended sentence is that you will have no criminal record if you satisfy all the terms of the conditional discharge for the nine months for which I am imposing it. [ 42 ] If you breach any of the terms of the conditional discharge probation order, you may be charged with a further criminal offence, and if you are charged with a further criminal offence and you are found guilty, you may face other punishment. [ 43 ] The terms and conditions of the conditional sentence will be as follows. [ 44 ] 2001: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 45 ] 2002: You must have no contact or communication, directly or indirectly, with Craig Landon. [ 46 ] 2005: You must not go to or be within 100 metres of any place where Craig Landon lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures.

The exceptions, will be while in a moving motor vehicle on your way to some other place. [ 47 ] 2103: You must report by telephone to a probation officer, and the telephone number will be on the document you receive, Mr. Hambleton. It will be the telephone number for the probation office in Salmon Arm, if there is one, or Vernon, which would be the next closest community if there is not one in Salmon Arm. You must do that, sir, by 3:00 p.m. today, April 1, 2021.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report. After that, you must report as directed by your officer. [ 48 ] 2106: Your reporting ends when you have satisfied your probation officer that you have completed your community service work, and your officer has told you that you are no longer required to report. [ 49 ] 2202: When first reporting to your probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without notifying your officer in writing at least two days in advance of any change. [ 50 ] 2510: You must complete 20 hours of community work under the direction of your probation officer. Your community work service must be completed at a rate of no fewer than three hours per month. That way you get the 20 hours in before the nine months are up.

[ 51 ] I think those are all the terms of probation you are looking for Mr. Bouchard? [ 52 ] CNSL B. BOUCHARD: Yes, Your Honour. [ 53 ] THE COURT: Okay. Mr. Hambleton, even though I have granted you a conditional discharge, the offence that you have been found guilty of is what is called a primary designated DNA offence. [ 54 ] Count 1 on Information 49163 is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you.

You must attend at the Royal Canadian Mounted Police detachment in Salmon Arm, British Columbia, on or before April 16, 2021, between the hours of 9:00 a.m. and 4:00 p.m. and submit to the taking of samples. This order is valid until executed. [ 55 ] You will receive a copy of that document, Mr. Hambleton, along with the probation document, and you take that with you when you go to see the police. Most detachments take a sample by a single pin prick to a finger, a couple of drops of blood onto a piece of cardboard, and that is it. (REASONS CONCLUDED)