R. v. Hood (S.V.), 2011 ABCA 169

• Judge: Martin, Watson and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 25, 2011
• Citations: 2011 ABCA 169;(2011), 505 A.R. 243 (CA)

R. v. Hood (S.V.) (2011), 505 A.R. 243 (CA);

      522 W.A.C. 243

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.037

Her Majesty the Queen (respondent) v. Shawn Vincent Hood (appellant)

(1001-0299-A; 2011 ABCA 169)

Indexed As: R. v. Hood (S.V.)

Alberta Court of Appeal

Martin, Watson and Rowbotham, JJ.A.

May 25, 2011.

Summary:

Hood pleaded guilty to sexual exploitation of a young person contrary to s. 153(1)(a) of the Criminal Code, and breaching his recognizance.

The Alberta Provincial Court, in a decision reported at [2010] A.R. Uned. 850, sentenced Hood to three and a half years' imprisonment. He appealed. The grounds of appeal alleged that the sentencing judge made factual errors in his assessment of the evidence, and that he erred by

placing too much significance on the fact that Hood was in a position of authority vis-à-vis the complainant.

The Alberta Court of Appeal dismissed the appeal. The sentence was not unfit.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 703

Sexual offences - Sexual exploitation of a young person - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5808

Sentencing - General - Questions of fact - The accused argued that the sentencing judge made factual errors in his assessment of the evidence - The Alberta Court of Appeal held that the sentencing judge's conclusions were reasonable and compelling - Two of the impugned findings of fact flowed naturally from the agreed statement of facts and were not challenged in the course of the sentencing hearing - "Save in extraordinary circumstances ... findings of fact are resistant to appellate review. Also, the accused is obliged to put the Crown on notice that information being alleged, and reasonable or inevitable inferences arising from that information, are being disputed ... [T]he time to challenge the evidence (and reasonable inferences arising from it) is when it is being introduced" - See paragraph 9.

Criminal Law - Topic 5812.1

Sentencing - Sentencing procedure and rights of the accused - Medical or psychiatric evidence - The accused pleaded guilty to sexual exploitation of a young person and breaching his recognizance - He was sentenced to three and a half years' imprisonment - He appealed the sentence on the ground, among others, that the sentencing judge erred in declining to accept the psychologist's prognosis that the accused was at a low risk to re-offend - The Alberta Court of Appeal rejected that ground of appeal - "A sentencing judge is not obliged to accept opinion evidence submitted during the sentencing hearing. Rather, he is free to accept that which appears reasonable and consonant with his own assessment of the evidence, and to reject that which is not" - Here, the sentencing judge properly alerted counsel of his concern, providing counsel an opportunity to address the matter - He then explained his disagreement in his reasons - He did not err in so doing - See paragraph 11.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See Criminal Law - Topic 5849.7 ].

Criminal Law - Topic 5817.1

Sentencing - Sentencing procedure and rights of the accused - Evidence - Agreed statement of facts - [See Criminal Law - Topic 5808 ].

Criminal Law - Topic 5823.2

Sentencing - Sentencing procedure and rights of the accused - Role of judge - [See Criminal Law - Topic 5849.7 ].

Criminal Law - Topic 5830.6

Sentencing - Considerations on imposing sentence - Relationship of victim to accused - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law - Topic 5849.7 ].

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - The sentencing judge rejected the range of sentence proposed by counsel (90 intermittent days by defence counsel, and nine months by Crown counsel), and then invited further submissions, including submissions on whether the offence attracted the starting point sentence of four years' imprisonment - The Alberta Court of Appeal stated that "[w]e have mandated that approach in situations where the sentencing judge is disinclined to follow a joint submission ... We fully agree that counsel should be given the same opportunity in situations like this, where there is no joint submission but the sentencing judge is inclined to sentence outside the range proposed by counsel" - The ultimate responsibility to impose a fit sentence, one that was proportionate within the meaning of s. 718.1 of the Criminal Code, rested with the sentencing judge, not with counsel - In the end result, the court held that the sentence imposed was not unfit - See paragraph 15.

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - The accused pleaded guilty to sexual exploitation of a young person and breaching his recognizance - He was sentenced to three and a half years' imprisonment - The offence occurred in 2007 - The accused was then 32, and managed a restaurant - The complainant was 14, and a part-time employee under the supervision of the accused - On the sentence appeal, the accused argued that the sentencing judge erred by placing too much significance on the fact that he was in a position of authority vis-à-vis the complainant - The Alberta Court of Appeal held that there was no merit in that argument - Although the accused did not directly invoke or manipulate the employee-manager relationship, he need not have done so to complete the offence - The critical fact was that the accused stood in a position of authority vis-à-vis the complainant as the sexual relationship began and developed - "Although, his position of authority over her may have evolved and taken on different characteristics (such as emotional elements) over time, it did not cease to be. If anything, his influence over her increased" - See paragraph 13.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - [See Criminal Law - Topic 5808 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5808 ].

Cases Noticed:

R. v. Estacio (D.I.) (2010), 474 A.R. 360; 479 W.A.C. 360; 2010 ABCA 69, refd to. [para. 9].

R. v. Audet (Y.) (1996), 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81; 106 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 13].

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65; 73 C.C.C.(3d) 530 (C.A.), refd to. [para. 14].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 15].

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171; 257 W.A.C. 171; 159 C.C.C.(3d) 434; 2001 ABCA 243, refd to. [para. 15].

R. v. Rode (B.J.) et al. (2007), 422 A.R. 95; 415 W.A.C. 95; 2007 ABCA 393, refd to. [para. 15].

Counsel:

G. Tomljanovic, Q.C., for the respondent;

J.M. Blumer, for the appellant.

This appeal was heard and decided on May 25, 2011, by Martin, Watson and Rowbotham, JJ.A., of the Alberta Court of Appeal. Martin, J.A., orally delivered the following memorandum of judgment, filed on June 7, 2011.