R. v. Haggerty (C.B.), (2013) 578 A.R. 132 (QB)

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 03, 2013
• Citations: (2013), 578 A.R. 132 (QB);2013 ABQB 711

R. v. Haggerty (C.B.) (2013), 578 A.R. 132 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.045

Her Majesty the Queen v. Chad Barry Haggerty (110102365S1; 2013 ABQB 711)

Indexed As: R. v. Haggerty (C.B.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

December 3, 2013.

Summary:

An aboriginal accused R.C.M.P officer pleaded guilty to assaulting his domestic partner. The trial judge, without considering or obviously applying the principles expressed in R. v. Gladue (SCC) respecting aboriginal offenders, sentenced the accused to 60 days' imprisonment (intermittent) and 24 months' probation. The accused appealed.

The Alberta Court of Queen's Bench allowed the appeal on the ground that the trial judge erred in law in sentencing the accused without considering the Gladue factors. Accordingly, the sentence was demonstrably unfit. The court ordered a pre-sentence report and a Gladue report and subsequently re-sentenced the accused to a conditional discharge and 15 months' probation.

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5834.7

Sentencing - Considerations on imposing sentence - Mental illness or disorder - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - The 39 year old aboriginal accused was a member of the R.C.M.P. - His domestic partner attempted to end a 1.5 hour argument by walking away - The accused pinned her on the bed and twice forced her into a position to look at him while they argued - He pleaded guilty to assault - Three previous relationships (including one marriage) had ended due to the accused's physical abuse - Mitigating factors included his guilty plea, the lack of a prior record, remorse and voluntarily taking counselling to deal with his PTSD, which he had developed from his service in the R.C.M.P. - He had a difficult aboriginal upbringing in poverty - He experienced racism as a youth and as an aboriginal R.C.M.P. officer - The accused resigned from the R.C.M.P. - He planned to go to university to become a lawyer - The Crown conceded that the assault caused no physical injury and was at the lower end of the spectrum - However, the court sought a sentence of imprisonment based on the prior incidents of domestic abuse and the accused's position as an R.C.M.P. officer - The accused requested a conditional discharge - The Alberta Court of Queen's Bench sentenced the accused to a conditional discharge and 15 months' probation - It was in the best interests of the accused not to enter a conviction, which would adversely affect his career goals and delay recovery from his PTSD condition - A conditional discharge was not contrary to the public interest - The court stated that the accused's "upbringing in an impoverished Metis Settlement, his life-threatening experiences as a police officer and his positive and continuing steps toward rehabilitation, weigh in favour of granting a conditional discharge" - General and specific deterrence could be adequately addressed with the conditional discharge - See paragraphs 6 to 40.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - A trial judge sentenced an aboriginal offender without considering or obviously applying the principles expressed in R. v. Gladue (SCC) respecting aboriginal offenders - The Crown argued that the court could not intervene unless the sentence was demonstrably unfit - The Alberta Court of Queen's Bench rejected the Crown's argument that the court could intervene only if, in light of the Gladue factors and a new pre-sentence report, the original sentence was demonstrably unfit - The court stated that "the original sentencing Judge had, inter alia, failed to consider or apply in any obvious way the principles expressed in Gladue resulting in a sentence which failed to consider the aboriginal background of this offender. Accordingly, the original sentence imposed was demonstrably unfit. In the result, I sentence afresh, taking into account the information about the aboriginal background of [the accused] and all of the other relevant circumstances of the offence and the offender" - See paragraphs 1 to 3.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 1].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 280 C.C.C.(3d) 265; 2012 SCC 13, refd to. [para. 1].

R. v. Gouda (R.J.) (2013), 554 A.R. 140; 2013 ABQB 121, refd to. [para. 2].

R. v. MacFarlane (1976), 55 A.R. 222 (C.A.), refd to. [para. 21].

R. v. Dunn (C.C.), [2013] A.R. Uned. 305; 2013 ABQB 181, refd to. [para. 28, Schedule A].

R. v. D.E.D. (2007), 444 A.R. 245; 2007 ABQB 508, refd to. [para. 29, Schedule A].

R. v. Sumyk, 2010 ABQB 217, refd to. [para. 29, Schedule A].

R. v. Koopman (R.) (1999), 244 A.R. 109; 209 W.A.C. 109; 1999 ABCA 269, refd to. [para. 30, Schedule A].

R. v. Betker (A.) (2004), 360 A.R. 57; 2004 ABQB 482, refd to. [para. 31, Schedule A].

R. v. Dixon (J.G.) (2011), 517 A.R. 380; 2011 ABQB 255, refd to. [para. 34, Schedule A].

R. v. Edmonds (P.B.) (2012), 539 A.R. 110; 561 W.A.C. 110; 2012 ABCA 340, refd to. [para. 36, Schedule A].

R. v. A.M.M. (2010), 503 A.R. 25; 2010 ABQB 514, refd to. [Schedule A].

R. v. Aymont (T.J.), [2008] A.R. Uned. 647; 2008 ABPC 285, refd to. [Schedule A].

R. v. Knowlton (W.T.), [2005] A.R. Uned. 206; 2005 ABPC 29, refd to. [Schedule A].

R. v. Serafinchon (M.J.), [2009] A.R. Uned. 673; 2009 ABPC 308, refd to. [Schedule A].

R. v. Popowich (M.J.) (2013), 544 A.R. 312; 567 W.A.C. 312; 2013 ABCA 149, refd to. [Schedule A].

R. v. Crazyboy (S.E.) (2012), 533 A.R. 371; 557 W.A.C. 371; 288 C.C.C.(3d) 459; 2012 ABCA 228, refd to. [Schedule A].

R. v. Bonneteau (R.A.) (1994), 157 A.R. 138; 77 W.A.C. 138 (C.A.), refd to. [Schedule A].

R. v. Teclesenbet (K.G.) (2009), 469 A.R. 193; 470 W.A.C. 193; 2009 ABCA 389, refd to. [Schedule A].

R. v. Chern (D.G.) (2002), 325 A.R. 4; 2002 ABPC 121, refd to. [Schedule A].

R. v. Lepine, 2012 ABPC 374, refd to. [Schedule A].

R. v. Youngman (D.R.) (2005), 396 A.R. 236; 2006 ABPC 28, refd to. [Schedule A].

R. v. W.R.T., [2009] A.R. Uned. 551; 2009 ABPC 208, refd to. [Schedule A].

Counsel:

Michelle Doyle (Edmonton Rural & Regional Response Office), for the Crown;

Darin H. Slaferek (Slaferek Callihoo), for the accused.

This matter was heard on May 31, June 21 and December 3, 2013, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 3, 2013.