R v Murphy, 2019 SKCA 8

Court of Appeal for Saskatchewan Docket: CACR3106 Citation: R v Murphy , 2019 SKCA 8 Date: 2019-01-23 Between: Aaron Michael Murphy Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Whitmore and Schwann JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Whitmore On Appeal From: CRM 400 of 2016, Regina Appeal Heard: October 1, 2018 Counsel: Aaron Michael Murphy appearing on his own behalf Luke A. Coupal for the Respondent Schwann J.A. I.

Introduction [ 1 ] Aaron Michael Murphy was charged with multiple offences arising from a high-speed police chase in the City of Regina and surrounding area while accompanied by an unwilling victim. Following trial, Mr. Murphy was convicted of assault causing bodily harm, unlawful confinement, evading police and dangerous driving. Although Mr. Murphy pleaded not guilty to the latter two charges, at the time of trial his legal counsel indicated to the court that he was not meaningfully contesting them. [ 2 ] Mr.

Murphy was given a global sentence of five years’ imprisonment, less 952 days’ credit for time spent on remand pending trial. In addition to other ancillary orders, Mr. Murphy was prohibited from operating a motor vehicle for a period of 24 months following his release from prison. [ 3 ] Mr. Murphy’s appeal from conviction focuses on three of the four offences. He also seeks leave to appeal the sentence that was imposed by the trial judge. II. BACKGROUND [ 4 ] Mr.

Murphy and his on-again-off-again girlfriend, P.W., had been driving around Regina in P.W.’s truck for the better part of the evening of May 1, 2016, and into the early morning hours of May 2. They smoked crack cocaine on three separate occasions over this span of time. On each occasion, P.W. paid for the drugs. [ 5 ] A dispute eventually arose between Mr. Murphy and P.W. around 5:30 a.m. near a bank situated in a shopping mall parking lot in the northwest part of Regina. At roughly the same time, a customer was leaving the bank after accessing the automated teller.

As the customer returned to her car, P.W. rolled down the driver’s side window and asked her to call the police. The customer called 9-1-1 at P.W.’s request. The customer described P.W. as “a little bit scared”. She remained at the scene and continued to observe P.W.’s truck until the police arrived. [ 6 ] P.W., who had been sitting in the driver’s seat of the truck, threw the truck keys out of the window. Although no clear finding of fact was made by the trial judge about how it came about, P.W. somehow ended up in the passenger’s seat of the truck with Mr.

Murphy behind the wheel. [ 7 ] The police arrived just as the truck was leaving the shopping centre parking lot and, as the trial judge put it, a “full-blown police pursuit” ensued with the police siren and flashing lights engaged. An audio-visual recording of the pursuit was made by a front- facing camera affixed inside the police vehicle. The recording first picked up the truck at 5:49 a.m. at the intersection of McCarthy Boulevard and 7th Avenue North, which is where the police pursuit began. [ 8 ] Constables Diebert and Creaser were in the pursuit vehicle.

They testified that the truck covered considerable ground on residential streets in the northwest part of Regina. The police officers observed the passenger side door open on three occasions, but each time the truck accelerated and the door was shut. The police officers also observed what appeared to be P.W. being struck repeatedly by Mr. Murphy during the course of their pursuit. [ 9 ] Mr. Murphy eventually proceeded in a southward direction along a gravel road just west of Regina at a high rate of speed. As Mr.

Murphy slowed down to make a right-hand turn from the gravel road onto Highway 1, another police vehicle rammed the truck.

This police maneuver slowed the truck sufficiently for P.W. to open the passenger side door and throw herself from the vehicle onto the highway. [ 10 ] Mr. Murphy carried on alone in a westerly direction on Highway 1 in spite of significant damage to P.W.’s truck. Mr. Murphy was eventually apprehended near Moose Jaw. [ 11 ] P.W. was taken to the hospital by ambulance where she remained for five days. She sustained a broken foot and some minor abrasions to her back, both of which were believed to have been caused when she jumped from the truck.

P.W. also sustained extensive bruising and swelling to her face and a serious bite mark to her left forearm. The photographs taken on the day of P.W.’s hospital admission depict a puffy face with both eyes swollen shut. [ 12 ] Mr. Murphy took the stand in his own defence. He denied assaulting P.W., asserting instead that the fight was consensual in nature. According to Mr. Murphy, P.W. had been swinging and flailing her arms at him. To keep her “at bay” he simply extended his right arm without necessarily aiming it at her although he conceded she may have been hit in the face more than once.

He also admitted to having bitten P.W., but, once again, he claimed it was in response to her having done the same thing to him. Mr. Murphy denied confining P.W. He testified that P.W. never objected to going along with him to Moose Jaw and that she never once asked to leave the vehicle. [ 13 ] P.W. testified that Mr. Murphy began punching her in the shopping mall parking lot. Once the police arrived on the scene, she testified that Mr. Murphy became agitated and repeatedly punched her. According to P.W., his punching went on unabated until she was finally able to throw herself from the vehicle. Since most of Mr.

Murphy’s punches were aimed at her head and face, P.W. testified that she tried to protect herself by slouching down in the vehicle to avoid his strikes. At one point, P.W. said Mr. Murphy tried to pull the string from her hoodie around her neck. She said she was terrified and feared for her life throughout the ordeal. [ 14 ] As mentioned, Mr. Murphy was convicted of all four offences. On the assault causing bodily harm charge, the trial judge accepted Mr. Murphy’s version of events while he and P.W. were in the mall parking lot but he implicitly rejected Mr.

Murphy’s evidence about the nature of their fight after he took control of the truck. From that point onward, the trial judge accepted the testimony of P.W. and the police officers, which, together with the photographic evidence of P.W.’s injuries, satisfied him that the Crown had proven this charge beyond a reasonable doubt. He said: There is no question that while in the mall parking lot there was a physical conflict between the accused and [P.W.], both parties agree on this point.

However, I am satisfied from the evidence, from all the evidence, beyond a reasonable doubt, that after the accused occupied the driver’s seat and took full control of the truck circumstances changed dramatically. I accept and believe [P.W.]’s evidence that she was repeatedly struck by the accused during the police pursuit.

I also accept and believe the testimony of the two police officers who pursued the truck, which was to the effect that they had seen the accused swing his arms in the direction of whoever was occupying the passenger seat. [ 15 ] After recounting the extent of the injuries to P.W.’s face, upper body and arm, the trial judge went on to say that even if it was a consensual fight, as Mr. Murphy had alleged it was, as a matter of law no one could consent to the infliction of bodily harm. He was satisfied P.W.’s facial injuries were caused by Mr. Murphy and that they were more than transient and trifling in nature.

III. THE CONVICTION APPEAL A. Preliminary observations [ 16 ] Mr. Murphy, who is self-represented on appeal, filed a notice of appeal enumerating numerous errors he says were made by the trial judge. At the time of the appeal hearing, though, Mr. Murphy compressed his focus somewhat. Broadly speaking, I understand Mr. Murphy to argue the verdict was unreasonable and not supported by the evidence. To advance this argument, Mr. Murphy largely attacks the factual findings of the trial judge, inferences drawn from the facts and the trial judge’s credibility assessments. [ 17 ] Properly framed, Mr.

Murphy invites this Court to reassess the credibility and reliability of the witnesses and reweigh a great deal of the evidence. This is not the function of an appellate court. Findings of fact and assessments of credibility made by a trial judge are entitled to deference. An appellate court can only intervene on appeal if the findings of fact display a palpable and overriding error, that is they are clearly wrong, unsupported by the evidence or otherwise unreasonable ( R v Clark , 2005 SCC 2 at para 9 , [2005] 1 SCR 6). To the extent Mr.

Murphy takes issue with the trial judge’s assessment of P.W.’s credibility and the reliability of the police witnesses, he has to overcome the deferential approach taken by a reviewing court in relation to such matters ( R v Schaff , 2017 SKCA 103 at para 44 ; R v N.L.P. , 2013 ONCA 773 , 305 CCC (3d) 105; R v Sanichar , 2012 ONCA 117 , 280 CCC (3d) 500, with dissenting reasons adopted in 2013 SCC 4 , [2013] 1 SCR 54). [ 18 ] With that, I turn to Mr. Murphy’s specific arguments in relation to the following convictions. B. Assault causing bodily harm [ 19 ] As he did at trial, Mr.

Murphy argues the trial judge erred in failing to conclude that his fight with P.W. was consensual in nature. Mr. Murphy testified that P.W. repeatedly struck him and that he simply extended his right arm to defend himself from her onslaught. Second, he argues the testimony of the police witnesses should not be believed because they were no closer than two to three car lengths from his truck and their line of sight was blocked by the truck’s tinted windows and headrest.

As such, he argues, it was not possible for the police officers to have witnessed him strike P.W., and thus their testimony was no more than speculation. Third, Mr. Murphy argues it was physically impossible for him to lean across his body and strike P.W. with his left hand while driving at a high rate of speed all the while secured by a seatbelt. Finally, Mr. Murphy argues the swelling to P.W.’s face was caused by the police cruiser ramming the truck and from when P.W. jumped out of the truck.

[20] As mentioned, Mr. Murphy’s central argument both at trial and on appeal was that he and P.W. had been swinging andflailing their arms at each other in some form of a consensual fight. Cast in legal terms, Mr. Murphy was essentially arguing the Crownhad failed to prove the absence of P.W.’s consent and, as such, their consensual fight did not amount to an assault within the meaning ofs. 265(1)(

a) of the Criminal Code. [21] The central difficulty with Mr. Murphy’s argument is that the issue of P.W.’s lack of consent largely turned on the credibilityof the witnesses. The trial judge was alive to Mr. Murphy’s argument and he even accepted Mr. Murphy’s evidence with regard to whathad occurred between him and P.W. in the mall parking lot. However, even though the trial judge did not specifically address the balanceof Mr. Murphy’s evidence under the W.(D.) framework (R v W.(D.), (SCC), [1991] 1 SCR 742), it is clear from hisdecision that he did not accept Mr.

Murphy’s evidence about what occurred after he and P.W. left the parking lot and, without expresslysaying so, did not find that it gave rise to reasonable doubt. [22] The trial judge then turned to the Crown’s evidence. He began by stating that he accepted P.W.’s testimony. She testified thatshe had been repeatedly struck by Mr. Murphy during the course of the police pursuit and had largely assumed a defensive posture byslouching down into the seat and placing her hands on her head. P.W. was cross-examined by experienced trial counsel. When it wassuggested to P.W. that her fight with Mr.

Murphy was consensual, she conceded that she had hit Mr. Murphy once when they were in themall parking lot but denied hitting him after they left. [23] The trial judge found support for P.W.’s testimony in the evidence of the two police officers. As the officers followed thetruck over the course of their pursuit, Cst. Diebert testified that he observed the driver repeatedly strike the passenger using both his rightand left hands, or at least saw fists thrown in the direction of where the passenger’s head would have been, as he put it, in a “barrage ofassaults”. On occasion, Cst. Diebert saw Mr.

Murphy’s body turn and shift, and then observed him reach over with his left hand.Constable Diebert agreed that the vehicle headrests obstructed his view somewhat and that he was a distance away at times. Nonetheless,Cst. Diebert was certain he could see the driver in spite of the tinted windows because of the morning sunlight and that, although theheadrest blocked a direct view of P.W., he managed to see her from time to time from certain angles. Under cross-examination,Cst.

Diebert conceded he only saw an arm motion from the driver and had assumed the arm connected with some part of P.W.’s body. [24] Constable Creaser provided similar testimony. He said he saw the male’s fist extend towards the passenger “multiple times”.Constable Creaser was challenged under cross-examination about whether the driver actually struck the passenger. While he could not becertain precisely where the blows landed, he was certain P.W. was being hit.

He said he could see fists being thrown by the driver in thedirection of where the passenger’s head would normally be. [25] Given how the trial judge approached the Crown’s evidence, Mr. Murphy’s arguments on appeal must be understood to betwofold: first, that the trial judge erred in accepting P.W.’s evidence over his and, second, that the trial judge erred in accepting thepolice officers’ evidence because it was unreliable since they had not been able to definitively say Mr. Murphy’s arm extensions hadconnected with P.W.’s face. [26] Mr.

Murphy’s first argument calls into question the trial judge’s assessment of P.W.’s credibility. Recall the trial judgeexpressly accepted P.W’s evidence with regard to Mr. Murphy’s aggression. Credibility findings are entitled to deference on appeal forthe simple reason that a trial judge has the benefit of seeing and hearing the witnesses in a live context within the dynamics of a trial. Mr.Murphy has not identified any error in the reasons or the record with how the trial judge assessed P.W.’s credibility beyond suggestingthat this Court should substitute its own credibility findings for that of the trial judge.

Whether a witness’s evidence is credible andreliable is a question of fact subject to the palpable and overriding error standard of review (R v R.P., 2012 SCC 22, [2012] 1 SCR 746). [27] As to the officers’ evidence, the trial judge did no more than say that he accepted the testimony of the two officers, “whichwas to the effect that they had seen the accused swing his arms in the direction of whoever was occupying the passenger seat” (emphasisadded). In other words, the officers’ evidence did not lead him to find as fact that Mr. Murphy’s swinging motions actually connectedwith P.W.

Even if the trial judge drew an inference that Mr. Murphy had hit P.W. based on the officers’ testimony and photographicevidence of the injuries to P.W.’s face and upper body, an appellate court is not entitled to reweigh the evidence or draw differentinferences from the facts absent a palpable and overriding error. Mr. Murphy has been unable to point to any palpable and overridingerror on the part of the trial judge. [28] Mr. Murphy next argues P.W.’s injuries were caused when the truck was rammed and she flung herself from the vehicle. I seeno error here.

The trial judge accepted that some of P.W.’s injuries had been sustained when the truck was rammed and she rolled ontothe highway. However, on the whole of the evidence, particularly the photographic and video evidence, the trial judge was satisfied theinjuries to P.W.’s face and upper body were caused by Mr. Murphy’s fists. [29] Ironically, the trial judge’s findings are consistent with Mr. Murphy’s own evidence. Mr. Murphy admitted he punched P.W.in the face with his fist shortly before the police pursuit began, albeit, as he maintained, in response to P.W. having hit him first.

Whenasked by his counsel what injuries he saw on P.W. at that time, Mr. Murphy replied: “Just -- just her face was getting puffy, that’s all”.Later, under cross-examination when asked if he saw bruising on both sides of her face, Mr. Murphy responded “Yeah, I did. Yeah”. [30] Mr. Murphy staunchly maintained he only extended his arm to stop P.W. from hitting him and that it was P.W. who continuedto hit him throughout the course of the police pursuit. Mr.

Murphy provided the following answers in cross-examination about whathappened while he was driving: Q And you’re just hitting her -- holding her back at bay you said with your one fist? A Like I said, yes, I’m extending my right arm to keep her at bay and not aiming anywhere, but in order to get her to stop from keep onhitting me, I’m putting my arm out. ... Q So what did you do to defend yourself while she’s --

A I -- I told you, I put my arm out to keep her at bay. And in order to get her to stop -- I went like this to get her to stop hitting me with no aiming of my fist, I wasn’t aiming to hit her anywhere. Q And it happened to hit her in the face many times; right? A It did, yeah. [ 31 ] Frankly, apart from Mr. Murphy’s admissions, there was an abundance of evidence from which the trial judge could have inferred P.W.’s facial and upper body injuries were sustained by punches delivered by Mr.

Murphy, not to mention the improbability that someone would use his or her fists to hold another person at bay. [ 32 ] In the end, having regard to the record, I am satisfied that the factual findings and inferences drawn from the facts by the trial judge were amply supported by the evidence. Since Mr. Murphy’s appeal largely challenges findings of fact, inferences drawn from the facts and credibility assessments, it was incumbent on him to demonstrate a palpable and overriding error. Apart from overstating the speed of the vehicle (discussed below), I see no such error.

In the absence of any palpable or overriding error, Mr. Murphy’s arguments call upon this Court to reconsider the evidence with a view to coming to a different conclusion. This, we cannot do. [ 33 ] Given the deferential standard of review for assessment of credibility and findings of fact, and on the record before me, there is simply no basis for appellate intervention with regard to this charge. C. Dangerous driving [ 34 ] Mr.

Murphy argues the trial judge erred when he stated the truck had reached speeds of 210 kilometres per hour even though it was operationally incapable of going no more than 160 kilometres per hour. Mr. Murphy also takes issue with Cst. Diebert’s evidence that the truck had blown through a red light. Mr. Murphy says he signaled and his vehicle had come to almost a complete stop at intersections. He submits the trial judge erred in accepting the officer’s testimony in the face of his conflicting testimony. [ 35 ] Let me say, firstly, that Mr.

Murphy’s appeal on these points is largely at odds with the position he took at trial on this charge. At the commencement of proceedings, Mr. Murphy’s legal counsel informed the court that, although he was pleading not guilty to this charge, he would not be taking issue with the Crown’s evidence. In spite of his position at trial, I will briefly review the evidence. [ 36 ] Constable Diebert estimated that Mr. Murphy was travelling between 70 and 80 kilometres per hour in a 50 kilometres per hour zone within the city.

When the truck approached the west end of Regina, where the speed zone was 80 kilometres per hour, Cst. Diebert estimated that Mr. Murphy was travelling between 100 to 110 kilometres per hour. Later, on the gravel road, Cst. Diebert thought the truck was travelling somewhere between 130 and 140 kilometres per hour. There was no evidence to suggest the speed of the truck was less than what the officer had testified to and, in direct response to Mr. Murphy’s argument, there was no evidence the truck was incapable of going beyond 160 kilometres per hour.

In light of all of this, while the trial judge may have overstated the top-end speed of the truck (210 kilometres per hour), this was no more than an overstatement that did not detract from his conclusion that the truck was travelling at excessive rates of speed within city limits and on the gravel roads. [ 37 ] Furthermore, in convicting Mr. Murphy of dangerous driving, the trial judge took into account the circumstances in which the dangerous driving occurred.

Indicia noted by the trial judge included the condition and place where the driving occurred and the amount of vehicular and pedestrian traffic that might reasonably be expected at those locales. Although not expressly referenced in the trial judge’s decision, Cst. Diebert testified the truck had swerved from time to time and that, although Mr. Murphy may have signalled at intersections and slowed down for red lights, he did not stop and blew through them. [ 38 ] The trial judge was well aware of the fact the Crown bore the onus of establishing that Mr.

Murphy’s driving constituted a marked departure from what a reasonable, prudent driver would do in the circumstances. There was an abundance of evidence from which the trial judge was able to convict Mr. Murphy on this charge. The speed at which Mr. Murphy drove was just one consideration that went into the mix in assessing whether he had operated the truck in a manner that was dangerous to the public and whether his driving constituted a marked departure from the norm. The simple fact Mr.

Murphy may have slowed down at some intersections does not make the conviction unreasonable. [ 39 ] I see no error with how the trial judge dealt with this charge. D. Unlawful confinement [ 40 ] In relation to this charge, Mr. Murphy contends P.W. was never confined because she expressed no objection throughout and never asked to leave the vehicle. [ 41 ] Mr. Murphy’s position obviously conflicts with the facts as found by the trial judge, notably: (

i) P.W. had asked the bank customer to call the police; (ii) P.W. made several attempts to leave the vehicle while it was in motion; and (iii) P.W. felt obliged to throw herself from the truck when the opportunity finally presented itself as they turned onto Highway 1.

It was on these facts the trial judge inferred unlawful confinement, stating: “Under such circumstances, separate and apart from [P.W.’s] testimony, it defies credibility for the accused to suggest or to believe that [P.W.] had agreed to accompany him after leaving the Normanview Mall”. [ 42 ] The trial judge’s findings are amply supported by the evidence. Both police officers testified seeing the passenger side door open on three separate occasions and then abruptly close. On one such occasion, Cst.

Creaser noticed the female passenger try to exit but then saw the driver reach across, grab her and pull her back into the truck. Constable Creaser had also testified that when they first approached the truck, he saw a female body almost halfway out the window waving to them. He described the look on P.W.’s face as fearful and scared. Although the trial judge found it unnecessary to rely on P.W.’s testimony to convict on this charge, her evidence clearly supports the trial judge’s bottom-line conclusion. P.W. testified that she had tried to exit the truck on several occasions but

Mr. Murphy was travelling too fast for her to do so. At points along the way, P.W. said the truck fishtailed and she thought they were going to crash and die. [ 43 ] In short, there is simply no basis to overturn the guilty verdict in relation to this offence. The trial judge obviously found the Crown’s witnesses credible. The findings of fact and inferences drawn from those findings are amply supported by the evidence. As mentioned above, an appellate court cannot interfere with a trial judge’s findings of fact and the factual inferences drawn from them absent a palpable and overriding error.

The evidence reveals no such error. E. Bias [ 44 ] Mr. Murphy contends the trial judge was biased because he elected not to publish his decision and stated that he would prefer if another judge would not read his decision. [ 45 ] Mr. Murphy has taken the trial judge’s comments out of context. What the trial judge actually said was as follows: THE COURT: Well, here’s what I’m thinking. Is that I don’t plan on publishing a decision, in other words, this is not likely to be an SKQB decision. MR. COMBE: Okay.

THE COURT: I see this largely, there are issues of law here, but not so significant that I -- that it necessarily requires a published decision. So it -- it’s a lot easier to do an unpublished decision than it is to do a published one because one has to be somewhat more careful, particularly if another judge is going to be reading my decision and choosing to follow or adopt it or disregard it, whatever the case might be. That having been said, I -- I’ve started working on it already, simply insofar as the recital of the facts is concerned.

So I don’t think this is going to take an awful long time and I suspect that Mr. Murphy would prefer a decision sooner than later. There’s going to have to be sentencing submissions anyway -- [ 46 ] There is no merit to Mr. Murphy’s argument. A trial judge is not obliged by law to render a written, published decision after each and every criminal trial. If the decision is an oral one, the trial judge must put the decision on the record. The trial judge did just that.

In any event, as I read the trial judge’s comments, he was simply expressing an interest in rendering a decision sooner rather than later and thought he could achieve greater timeliness by delivering it orally. This does not constitute bias. IV. THE SENTENCE APPEAL [ 47 ] Mr. Murphy raises several issues in his appeal from sentence. First, he says the trial judge failed to give him an opportunity to address the court on sentence, which effectively precluded him from expressing remorse for his actions.

Second, he takes issue with the six-month consecutive sentence imposed for the dangerous driving charge and the two-year driving prohibition following his release from prison. Based on these errors, he asks for his sentence to be reduced to time served. I will deal with each of Mr. Murphy’s arguments in turn. A. No opportunity to address the court at the time of sentencing [ 48 ] Mr. Murphy argues the trial judge erred when he failed to ask him if he wished to say something prior to imposing sentence. Had he been given the opportunity to speak, Mr.

Murphy says he would have expressed remorse for his actions. [ 49 ] The trial record confirms that Mr. Murphy was not given an opportunity to address the court. But it also confirms that Mr. Murphy’s trial counsel, who had made extensive sentencing submissions on Mr. Murphy’s behalf, offered no comment about Mr. Murphy’s sense of remorse. In spite of this, the trial judge took stock of Mr.

Murphy’s lack of remorse in the context of sentencing where he said: While he admitted responsibility for fleeing the pursuing police officers without pleading guilty to the offence, I did not sense any remorse on the offender’s part. Further, no reference to remorse was discussed in the sentencing submission that I heard. [ 50 ]

Section 726 of the Criminal Code requires a trial judge to give an accused the opportunity to address the court before sentence is imposed: Offender may speak to sentence 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [ 51 ] Although s. 726 is crafted in mandatory language, case law has repeatedly held that a trial judge’s failure to ask an offender if he or she wishes to make a statement prior to imposing sentence does not automatically vitiate the sentence. [ 52 ] This Court has dealt with an argument of this sort on several occasions. [ 53 ] In R v Haug , 2002 SKCA 49 , 219 Sask R 276 [ Haug ], the offender’s trial counsel had made submissions on his behalf respecting the relevant sentencing principles and issues at play in his proceedings.

The offender was not given an opportunity to address the court prior to sentence being imposed. On appeal, the offender argued that failure to comply with s. 726 invalidated the sentence and asked this Court to quash both the convictions and sentence. Speaking for the Court, Tallis J.A. stated that since the offender’s trial counsel had been given a full opportunity to address the sentencing judge, non-compliance with s. 726 did not invalidate the sentencing hearing. Similarly, in R v Ratt , 2006 SKCA 99 , 285 Sask R 177 [ Ratt ], the trial judge failed to comply with s. 726 prior to sentence being

imposed, but when the offender was subsequently given an opportunity to address the court he declined.

In upholding the sentence onappeal, this Court said: [8] Since the appellant’s counsel was given a full opportunity to make representations on behalf of the appellant, and in fact did so,and since the appellant declined to speak when later given an opportunity to do so, the failure amounts to an inadvertent slip andharmless error that did not affect the validity of the proceedings [authorities omitted]. [54] Ratt and Haug adopted the appellate-level decisions in R v Senek (1998), (MB CA), 130 CCC (3d) 473(Man CA) [Senek], R v Holub (2002), (ON CA), 163 CCC (3d) 166 (Ont CA) [Holub], and R v Spath, 2003 ABCA46, 320 AR 316 [Spath]. [55] Senek is arguably the leading decision in relation to s. 726.

In dismissing the appeal on this ground, the Manitoba Court ofAppeal took the following factors into account: (

i) defence counsel took no objection to the trial judge’s oversight at the time ofsentencing; (ii) the offender was well-represented by trial counsel, who had made thorough and lengthy submissions on his behalf; and(iii) the offender gave no indication of what, if anything, he wanted to say at trial if he had been given the chance to speak.

In light ofthese considerations, the trial judge’s omission was found to be an “inadvertent oversight” that resulted in no disadvantage or unfairnessto the accused and as such, the court held, did not constitute a substantial wrong or miscarriage of justice (at paras 19–20). [56] In Holub, when counsel finished with submissions after a three-day sentencing hearing, the trial judge adjourned proceedingswithout asking the offenders if they wanted to address the court. On appeal, one of the offenders argued breach of s. 726 constituted anerror of law that invalidated his sentence.

In the course of the appeal hearing, the court permitted the offender to file a letter in which heexpressed feelings of remorse and shame. The Ontario Court of Appeal agreed that it was an error for the trial judge to have failed to askthe offender if he wished to speak prior to sentence being imposed.

That said, the court found it to be an inadvertent slip and, in anyevent, found nothing in the offender’s letter that could possibly have changed the result even if the trial judge had heard the offenderexpress his views in court (at para 31). [57] Spath simply reaffirmed the general principle that failure to comply with s. 726 does not automatically invalidate a sentencehearing and, in the circumstances of that case, it amounted to a “harmless error”.

The court made specific reference to how the trialjudge’s reasons had taken into account the portions of the pre-sentence report where the offender had expressed remorse and acceptedresponsibility for his actions. [58] This Court’s most recent decision in R v Paddy, 2011 SKCA 12, 366 Sask R 4, affirms the approach taken in Senek: [53] While it is an error not to ask a convicted person if he or she has anything to say prior to imposing a sentence, where an offenderis represented by counsel at the sentencing hearing, this omission does not on its own invalidate the sentence imposed. (Emphasis added) See also: R v L.T.G., 2002 SKCA 101, 223 Sask R 157. [59] As I see it, having regard to the case authority, there are several reasons why the trial judge’s error should not lead to Mr.Murphy’s sentence being set aside. [60] First, there is nothing in the record to suggest the trial judge’s error was intentional in nature.

It appears to have been aninadvertent slip and no suggestion otherwise was made by Mr. Murphy. As the Alberta Court of Appeal observed in R v Gouthro, 2010ABCA 188, 256 CCC (3d) 432, there are no reported decisions giving effect on appeal to an accidental failure to invite an accused tospeak and, in fact, a number of decisions have declined to give any effect to a breach of s. 726 at all (at para 32). [61] Second, Mr. Murphy’s counsel at the time of trial made extensive sentencing submissions on Mr.

Murphy’s behalf.Furthermore, at the end of submissions, no objection was taken by defence counsel to the trial judge’s failure to ask Mr. Murphy if hehad anything to say. [62] Third, to the extent Mr. Murphy might have wished to express his feelings at the time of sentencing, he certainly had a chanceto do so on appeal. Surprisingly, he did not take that opportunity to express remorse for his actions or to apologize to P.W., but insteadsimply focused on the trial judge’s error and continued to blame P.W. for his actions. [63] Fourth, this was an oversight that would have had no demonstrable bearing on sentence.

Mr. Murphy has not indicated exactlywhat he would have said by way of offering an “apology”. His submissions in this Court, which involved ongoing blame of P.W.,suggest any apology offered at trial would not have influenced the trial judge in any significant way. [64] For all of these reasons, Mr. Murphy has not persuaded me that the trial judge’s failure to give him an opportunity to addressthe court at the time of sentencing warrants appellate intervention. B. The sentence imposed for dangerous driving [65] With regard to the dangerous driving sentence, Mr.

Murphy contends that fines are typically imposed for dangerous drivingconvictions where the gravamen of the offence is only excessive speed. I take Mr. Murphy’s argument to be that the six-monthconsecutive sentence imposed for the dangerous driving conviction is demonstrably unfit because he should have received a fine instead.He offered no case authority to support his position. [66] Before assessing Mr. Murphy’s argument, I pause to note that the sentencing submissions made by Mr. Murphy’s trial

counsel bear little resemblance to Mr. Murphy’s position on appeal. At trial, Mr. Murphy’s counsel conceded that, in keeping with this Court’s decision in R v Briltz , 2016 SKCA 2 , [2016] 5 WWR 496, a dangerous driving sentence is always consecutive to an evading police charge. He told the trial judge that the range for dangerous driving was a fine at the low-end, to two-years-less-a-day at the high- end, with the higher-end sentences reserved for offenders with bad driving records. He then asked for a two-month consecutive sentence for Mr. Murphy. [ 67 ] I find Mr.

Murphy’s argument to be without merit for several reasons. First of all, sentencing is a highly individualized process guided by ss. 718 to 718.2 of the Criminal Code .

Section 718 sets out the fundamental purpose and specific objectives of sentencing: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 68 ] The fundamental principle of sentencing is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). The sentencing judge’s discretion to craft a sentence tailored to the nature of the offence and the specific offender is not without limits.

Section 718.2 imposes additional considerations with the parity principle being one such consideration (s. 718.2(b)). This principle provides that a sentence should be similar to a sentence imposed on similar offenders for similar offences committed in similar circumstances.

However, as the Supreme Court of Canada pointed out in R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, the parity principle is secondary to the fundamental principle of proportionality and, further, that failure to adhere to a sentencing range, on its own, does not constitute an error in principle justifying appellate intervention (at para 54). As the Supreme Court emphasized “everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case” (at para 58). [ 69 ] What this means in relation to the argument advanced by Mr.

Murphy is simply this: just because other offenders may have been sentenced to a fine for this particular offence, it does not necessarily follow that a fine is the appropriate sentence for Mr. Murphy. [ 70 ] Mr. Murphy’s suggestion that his dangerous driving offence would more appropriately be dealt with by a fine ignores what Parliament has said about this offence and does not bear up to jurisprudential scrutiny. As Mr.

Murphy’s charges proceeded by way of indictment, he was subject to the penalty provision in s. 249(2) of the Criminal Code , which prescribes a maximum penalty of five years’ imprisonment for dangerous driving. A sentence maximum of five years self-evidently speaks to the seriousness of this offence. [ 71 ] Turning to the sentencing jurisprudence, a quick reference to several recent decisions from this Court (where the sentence imposed at trial was upheld) illustrates the error in Mr. Murphy’s reasoning. An incarceral sentence for the offence of dangerous driving is definitely not unknown.

For instance, in R v Maurice , 2018 SKCA (SentDig) 16, the offender drove away with a stolen taxi and a police chase ensued. He only stopped the vehicle after driving over spike belts. On the s. 249(1)(

a) charge, the offender was sentenced to two years concurrent to the other sentences and given a two-year driving prohibition. In R v Morin , 2017 SKCA (SentDig) 24, the offender drove a stolen vehicle with two passengers inside. The offender was observed driving erratically. He ran a red light and his vehicle was struck by another motorist. He had an extensive criminal record. On the dangerous driving conviction he was given a sentence of seven months in addition to seven months’ remand time, concurrent with four other offences.

R v Stanley , 2017 SKCA (SentDig) 25, is another decision that bears some similarities to the present matter. There, the offender drove away from the court house at an excessive rate of speed almost hitting a prisoner transport vehicle. Later in the afternoon the offender was spotted by the police driving at speeds as high as 130 kilometres per hour in residential areas, ignoring stop signs and lights as well as oncoming traffic. He was sentenced to two years concurrent, plus two years’ probation for two counts of dangerous driving.

Admittedly, all of the noted offenders had lengthy criminal records but, by the same token, all had pleaded guilty. [ 72 ] In Mr. Murphy’s situation, the trial judge concluded that concern for public protection enhanced the gravity of this offence. He took note of Mr. Murphy’s criminal record. He concluded a youth conviction for driving while over .08 as well as two adult convictions for the same offence said something about Mr. Murphy’s driving record and had an impact on the sentence imposed. The trial judge commented on Mr.

Murphy’s obvious lack of regard for the safety of P.W., the police officers, “or for the safety and welfare of any other users of the road that might reasonably have been expected to be in the area where this pursuit occurred”. [ 73 ] In sentencing Mr. Murphy to six-months consecutive on this charge, the trial judge took into account all of the relevant sentencing factors and was particularly influenced by the fact Mr. Murphy drove at a high rate of speed within city limits accompanied by an unwilling passenger over a protracted period of time.

In light of everything before him, including the submissions of counsel in relation to the appropriate sentence for this offence, there was nothing improper with the sentence that was imposed. [ 74 ] In light of these considerations, there was no error in principle that impacted the sentence imposed nor was the sentence demonstrably unfit.

C. Licence suspension [ 75 ] In his oral submissions before this Court, Mr. Murphy sought to have his driving prohibition reduced from two years to six months because, as he put it, “six months is sufficient time”. He did not elaborate on this argument, nor did he seek to file fresh evidence on appeal. From a careful review of the record, no argument was advanced by defence counsel at the time of the sentencing hearing concerning licence suspension. [ 76 ] The Crown argues that it was open to the trial judge to have handed down a driving prohibition of up to three years given the circumstances.

The Crown points out that Mr. Murphy’s crimes were very serious, caused a lot of damage, and saw him victimize PW. Given the circumstances of this offence and this offender, the Crown contends the two-year driving prohibition was fit. [ 77 ] Mr. Murphy was convicted of dangerous driving contrary to s. 249(1) (

a) of the Criminal Code . A conviction under s. 249 engages the potential application of s. 259 , which authorizes the trial judge to make an order prohibiting the offender from operating a motor vehicle following release from jail. In Mr. Murphy’s situation, the trial judge was empowered to make an order prohibiting him from operating a motor vehicle for any period not exceeding three years (s. 259(2)(c)). Accordingly, a two-year driving prohibition was not an illegal sentence and may be characterized as falling in the middle of the available statutory range. [ 78 ] I take Mr.

Murphy to argue that the trial judge erred by failing to take into account the effect a driving prohibition would have on his employment. In light of the fact Mr. Murphy failed to bring this issue to the attention of the trial judge in the course of sentence submissions, it is hard to see how the trial judge erred. Furthermore, case law suggests some tangible evidence is required to demonstrate how a driving prohibition would impair the offender’s ability to work.

Conceptually, this would include evidence about the nature of the offender’s work, if the work requires the offender to drive or if other work suited to the offender’s skills is unavailable (see: R v Antunes , 2013 BCCA 127 at paras 6–13 , 44 MVR (6th) 35). In the absence of any evidence in the court below about the nature of Mr. Murphy’s work or, for that matter, any fresh evidence on appeal, I am simply unable to give effect to this argument. V. CONCLUSION [ 79 ] For the reasons given, there is no basis to set aside the convictions entered following trial, and I would therefore dismiss Mr.

Murphy’s conviction appeal. While I would grant Mr. Murphy leave to appeal sentence, this appeal is also dismissed. “Schwann J.A.” Schwann J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A.