R. v. Phan (L.), (2009) 476 A.R. 366 (PC)

• Judge: Cummings, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 31, 2009
• Citations: (2009), 476 A.R. 366 (PC);2009 ABPC 255

R. v. Phan (L.) (2009), 476 A.R. 366 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.077

Her Majesty the Queen v. Lily Phan (071597017P101001; 071597017P101004; 2009 ABPC 255)

Indexed As: R. v. Phan (L.)

Alberta Provincial Court

Cummings, P.C.J.

August 31, 2009.

Summary:

The Crown alleged that the accused assaulted an Alberta Sheriff (Hammoud) during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast", on the grounds of Calgary's McDougall Centre. Alberta's Premier was the featured host. The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie. The accused was charged with (1) assaulting a peace officer engaged in the execution of his duty, (2) obstructing, interrupting or interfering with the lawful use of property, (3) assault, (4) assault with intent to resist lawful arrest and (5) causing a disturbance in a public place.

The Alberta Provincial Court, in a decision reported at 476 A.R. 323, found the accused guilty of the following charges: (1) assaulting a peace officer engaged in the execution of his duty; (3) assault on Hammoud; and (4) assault with intent to resist lawful arrest. The accused was found not guilty of charges (2) obstructing, interrupting or interfering with the lawful use property and (5) causing a disturbance in a public place (the McDougall Centre). After considering the rule against multiple convictions, the court directed a conditional stay on charge (3), assault on Hammoud.

The Alberta Provincial Court sentenced the accused to a 30 day intermittent sentence on each count, concurrent, followed by three months' probation

Criminal Law - Topic 3080

Special powers - Forensic DNA analysis - When DNA sample order available or appropriate - The accused was convicted of assaulting a peace officer engaged in the execution of his duty and assault with intent to resist lawful arrest - The Sherriff deflected pie that the accused was aiming at the Premier - The accused kicked the Sheriff in the course of his efforts to restrain her - She also yelled "it's just a pie, not a bomb" while being restrained - First offender - Social activist with what appeared to be strongly held personal views on social issues - The Alberta Provincial Court imposed a 30 day intermittent sentence on each count, concurrent, to be followed by three months' probation - The sentence was designed to address her particular criminal actions, not sanction her for her role as a social activist - A conditional sentence was not appropriate - There was a need for general deterrence where both Alberta's former and current Premiers had been the target of pie assaults within a short time span of four years - The impact on the accused's privacy and security outweighed the need to obtain a DNA sample - See paragraphs 49 to 53.

Criminal Law - Topic 5861

Sentence - Assault (incl. common assault) - [See Criminal Law - Topic 3080 ].

Criminal Law - Topic 5894

Sentence - Assaulting a police officer or peace officer (incl. with intent to resist arrest or detention) - [See Criminal Law - Topic 3080 ].

Cases Noticed:

R. v. Geoghegan (C.P.), [2005] 6 W.W.R. 719; 369 A.R. 105; 38 Alta. L.R.(4th) 349; 66 W.C.B.(2d) 550 (Prov. Ct.), affd. (2005), 368 A.R. 399; 45 Alta. L.R.(4th) 400; 195 C.C.C.(3d) 85; 29 C.R.(6th) 154; 64 W.C.B.(2d) 362; 2005 CarswellAlta 263 (Q.B.), appld. [para. 23].

R. v. Matrai (1972), 6 C.C.C.(2d) 62; 17 C.R.N.S. 30 (Ont. Prov. Ct.), affd. (1972), 6 C.C.C.(2d) 574 (Ont. C.A.), refd to. [para. 33].

R. v. Brown (E.W.), [2001] P.E.I.J. No. 119 (Prov. Ct.), revd. (2001), 208 Nfld. & P.E.I.R. 133; 624 A.P.R. 133 (P.E.I.T.D.), refd to. [para. 34].

R. v. R.C., [2005] 3 S.C.R. 99; 340 N.R. 53; 237 N.S.R.(2d) 204; 754 A.P.R. 204; 2005 SCC 61, refd to. [para. 50].

Counsel:

L. Robertson, for the Crown;

M. Takada, for the accused.

This sentencing matter was heard by Cummings, P.C.J., of the Alberta Provincial Court, who delivered the following decision on August 31, 2009.