R. v. Hanna (D.D.), 2013 ABCA 134

• Judge: Berger, Slatter and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 12, 2013
• Citations: 2013 ABCA 134;(2013), 544 A.R. 135

R. v. Hanna (D.D.) (2013), 544 A.R. 135; 567 W.A.C. 135 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.074

Her Majesty the Queen (respondent) v. Dwayne Daryl Hanna (appellant)

(1203-0154-A; 2013 ABCA 134)

Indexed As: R. v. Hanna (D.D.)

Alberta Court of Appeal

Berger, Slatter and O'Ferrall, JJ.A.

April 18, 2013.

Summary:

The Alberta Court of Queen's Bench, in a decision reported at (2012), 545 A.R. 288, found Hanna (55 year old male) guilty of one count of driving while disqualified, two breaches of recognizance, and one count of dangerous driving. Hanna's lengthy record included eight convictions for dangerous driving, 12 convictions for driving while disqualified, and two convictions for flight from police. His longest previous sentence for driving offences was two years. His longest previous driving prohibition was five years. Hanna received a global sentence of 5.5 years' incarceration and a seven year driving prohibition. He appealed the sentence, arguing that the maximum five year sentence for driving while disqualified was unfit; that he should have received credit because of excessive force used at the time of his arrest; and that the sentence violated the "jump" principle.

The Alberta Court of Appeal, Berger, J.A., dissenting, allowed the appeal. There was reviewable error in the trial judge treating the manner of driving as an aggravating factor on the disqualified driving count, and in failing to recognize the state misconduct. The global sentence was four years and nine months (3.5 years for driving while disqualified, and one year and three months consecutive for dangerous driving). The driving prohibition remained. Berger, J.A., would have substituted a sentence of two years for driving while disqualified, and one year and three months consecutive for dangerous driving, resulting in a global sentence of three years and three months.

Courts - Topic 360

Judges - Exercise of authority - Record keeping by clerk - [See second Criminal Law - Topic 5807 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See first Criminal Law - Topic 5807 ].

Criminal Law - Topic 5604

Punishments (sentence) - Multiple punishments - [See first Criminal Law - Topic 5807 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See first Criminal Law - Topic 5807 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused appealed the global sentence of 5.5 years' incarceration for driving while disqualified (five years) and dangerous driving (two years) - The sentencing judge reduced the seven year cumulative sentence, applying the totality principle, to a "global sentence" of 5.5 years, without specifying on the record how the reduction for totality would be allocated between the two offences - The Alberta Court of Appeal stated that "[t]he sentencing judge did not proportion the totality discount between the two offences. The practice of imposing 'global' sentences for multiple offences is to be discouraged, because it undermines the transparency of the sentencing process. Section 726.2 of the Criminal Code requires that reasons be given for sentencing ... Section 718.3(4) provides that where an accused is sentenced for multiple offences the court 'may direct that the terms of imprisonment . . . shall be served consecutively'. This provision, especially when read in light of s. 726.2, contemplates that the sentencing court will specify the length of each individual sentence." - See paragraphs 4 and 5.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused appealed the global sentence of 5.5 years' incarceration for driving while disqualified (five years) and dangerous driving (two years) - The sentencing judge reduced the seven year cumulative sentence, applying the totality principle, to a "global sentence" of 5.5 years, without specifying on the record how the reduction for totality would be allocated between the two offences - The clerk of the court endorsed the record to show a sentence of 5 years (the maximum) for driving while disqualified, and six months for dangerous driving - The record did not show how the clerk came to make that allocation - The Alberta Court of Appeal stated that "[s]ince the Court of Queen's Bench is a court of record, its records are presumed to be accurate without further inquiry ... This Court must therefore proceed on the assumption that the allocation recorded by the clerk is accurate." - See paragraph 6.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The Alberta Court of Appeal stated that "[w]here there are convictions for several offences, and the ultimate sentence is carefully crafted ... the fitness of the sentence must be considered as a whole. The appellant [accused] is not entitled to cherry pick parts of the sentence on appeal, disregarding the intention of the sentencing judge to craft complementary sentences on the various convictions. Further, the appellant is not entitled to appeal his sentence as of right, but rather requires leave to appeal: Criminal Code, s. 675(1)(b). In circumstances like this, the appellant would not be entitled to obtain leave to appeal only the portions of a global sentence that he finds unacceptable. Since the trial judge imposed a 'global' sentence, after she had regard to the fitness of the total sentence, the appellant should only be granted leave to appeal the whole sentence, or none of it. Further, s. 728 provides: ... 'Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence. Here the trial judge effectively imposed one global sentence, and that sentence should not be disturbed on appeal if any combination of fit sentences on the individual counts would have resulted in the same sentence. In those circumstances, the sentence cannot be said to be 'demonstrably unfit', and appellate intervention is not warranted." - See paragraphs 19 and 20.

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - The accused appealed the global sentence of 5.5 years' incarceration for driving while disqualified (five years, the maximum) and dangerous driving (two years) - He argued that the maximum sentence for driving while disqualified was unfit and that the sentence violated the "jump" principle - He did not challenge the ultimate six month sentence for dangerous driving - The Alberta Court of Appeal stated that the fitness of both sentences had to be examined, given that the global sentence was set because the total of the two sentences was excessive - The two year sentence for the dangerous driving offence was not demonstrably unfit - Eight prior convictions for dangerous driving; sentences included two years less a day - The two year sentence did not result in any "jump" - Aggravating circumstances: real possibility of personal injury; the dangerous driving continued for some time and distance - With respect to the offence of driving while disqualified, a "jump" was not unfit - A mature offender; lengthy related record - No mitigating factors - There was reviewable error, however, in the trial judge treating the dangerous driving as an aggravating factor on the disqualified driving count - In the end result, the court reduced the sentence to 3.5 years for driving while disqualified - See paragraphs 7 to 21.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See first Criminal Law - Topic 5807 ].

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General (incl. "jump" principle) - [See fourth Criminal Law - Topic 5807 ].

Criminal Law - Topic 5846.6

Sentencing - Considerations on imposing sentence - Violation of accused's rights (incl. police misconduct) - On the offence of dangerous driving, the accused argued that he should have received a reduction in the two year sentence because of excessive force used when he was arrested (police dog bit his arm and leg; the dog's handler punched the accused in the face when he failed to obey the command to let go of the dog's muzzle ) - The trial judge had declined to moderate the sentence, finding that the accused was "largely the author of his own misfortune" by fleeing the scene - The Alberta Court of Appeal deducted nine months from the sentence - The trial judge's findings reflected palpable and overriding error - There was no objective justification for the handler to let go of the dog's harness, thereby losing control of the dog, at least before the accused had been ordered to surrender - It could not fairly be said that the accused brought any of this (especially the punches) upon himself - It was the dog who had a hold of the accused; not the other way around - See paragraphs 22 to 25.

Criminal Law - Topic 5849.10

Sentencing - Considerations on imposing sentence - When maximum sentence available - [See fourth Criminal Law - Topic 5807 ].

Criminal Law - Topic 5865

Sentence - Dangerous driving - [See Criminal Law - Topic 5846.6 ].

Criminal Law - Topic 5885

Sentence - Driving while disqualified or suspended - [See fourth Criminal Law - Topic 5807 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The accused appealed the global sentence of 5.5 years' incarceration - He argued that the maximum sentence he received for driving while disqualified was unfit; that he should have received credit because of excessive force used at the time of his arrest, and that the sentence violated the "jump" principle - The Alberta Court of Appeal, as to the standard of review, stated that "[s]entencing decisions attract considerable deference ... . Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Deference is owed even when the sentencing judge imposes the maximum sentence ... The same standard of review applies to the decision of a sentencing judge to mitigate a sentence because of unlawful state conduct" - In the end result, the court allowed the appeal - The final sentence was four years and nine months - See paragraphs 8, 27.

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Criminal Law - Topic 5846.6 ].

Police - Topic 3078

Powers - Arrest and detention - Attack dogs - Use of - [See Criminal Law - Topic 5846.6 ].

Cases Noticed:

Sproule, Re (1886), 12 S.C.R. 140, refd to. [para. 6].

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33, refd to. [para. 6].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 8].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 8].

R. v. Nasogaluak (L.M.) (2007), 422 A.R. 222; 415 W.A.C. 222; 2007 ABCA 339, affd. [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [paras. 8, 22].

R. v. Clark (P.D.) (2000), 266 A.R. 343; 228 W.A.C. 343; 2000 ABCA 246, refd to. [para. 12].

R. v. Wharry (W.E.) (2008), 437 A.R. 148; 433 W.A.C. 148; 2008 ABCA 293, refd to. [para. 16].

R. v. Hill (No. 2), [1977] 1 S.C.R. 827; 7 N.R. 373, refd to. [para. 18].

R. v. Hogg (P.E.) (2009), 470 A.R. 269; 2009 ABPC 230, refd to. [para. 29].

R. v. Steele (K.) (2010), 485 A.R. 321; 75 C.R.(6th) 122; 2010 ABQB 191, refd to. [para. 36].

R. v. Rideout, [2003] A.J. No. 1746 (Prov. Ct.), refd to. [para. 36].

R. v. Crane, [2005] A.J. No. 292 (Prov. Ct.), refd to. [para. 36].

R. v. Fryingpan - see R. v. R.L.F.

R. v. R.L.F. (2005), 373 A.R. 114; 2005 ABPC 28, refd to. [para. 36].

R. v. J.W. (2006), 398 A.R. 374; 2006 ABPC 216, refd to. [para. 36].

R. v. J.D.C., [2009] A.R. Uned. 707; 2009 ABPC 346, refd to. [para. 36].

R. v. Pringle (J.D.) (2003), 324 A.R. 352; 2003 ABPC 7, refd to. [para. 36].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 37].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 37].

R. v. Pigeon (C.) (1992), 14 B.C.A.C. 139; 26 W.A.C. 139; 73 C.C.C.(3d) 337 (C.A.), refd to. [para. 38].

R. v. Singh (N.), [2012] O.T.C. Uned. 4429; 2012 ONSC 4429, refd to. [para. 41].

R. v. Hindes (S.C.) (2000), 261 A.R. 108; 225 W.A.C. 108; 2000 ABCA 197, refd to. [para. 45].

R. v. Daniels, [1988] A.J. No. 62 (Alta. C.A.), refd to. [para. 46].

R. v. Kootenay (Q.V.) (2004), 357 A.R. 351; 334 W.A.C. 351; 2004 ABCA 416, refd to. [para. 46].

R. v. Minaker (D.R.), [2009] A.R. Uned. 58; 2009 ABCA 189, refd to. [para. 46].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.3(4), sect. 726.2 [para. 5].

Authors and Works Noticed:

Manson, Allan, The Law of Sentencing (2001), p. 102 [para. 48].

Ruby, Clayton, Sentencing (7th Ed. 2008), pp. 389 to 390 [paras. 43, 44].

Counsel:

E.A.M. Gilmour, for the respondent;

D.R. Hatch, for the appellant.

This sentence appeal was heard on March 12, 2013, before Berger, Slatter and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment, with reasons, filed at Edmonton, Alberta, on April 18, 2013:

Slatter and O'Ferrall, JJ.A. - see paragraphs 1 to 27;

Berger, J.A., dissenting - see paragraphs 28 to 49.