Two weeks ago I attended at the Court of Appeal here at the Calgary Courts Centre. We had represented a high profile individual who was convicted of assault causing bodily harm (there were one or two other charges, including common assault and unlawfully being in a dwelling place) on a friend, at her residence, after a night of drinking.
After trial, our client was sentenced to 90 days (to be served on the weekends) along with a significant probation conditions. In this case, the Crown appealed the sentence, arguing that it was clearly inadequate. The Crown was looking for jail (or gaol in the Court parlance) of two to three years.
Our position was quite straightforward. Justice should be, and was, obtained at the first instance. The trial judge, Judge Stevenson has been on the bench for 38 years. He had regard to all the facts before him, and was in the best position to impose an appropriate penalty. Judge Stevenson reviewed and assessed the mandatory considerations set out in s.718 of the Criminal Code (and found that none existed).
The standard of review is that an appellate court should only interefere to vary a sentence imposed at trial if the sentence is demonstrably unfit.
The fact of the matter is that (contrary to the Crown's position) the evidence was unequivocal - there was no domestic relationship. There was little or no evidence of a trust relationship. The assault occurred in the context of a friendship. The Crown argued that it was domestic and therefore aggravating and that Judge Stevenson did not have regard for that. This was the same argument advanced at trial. It wasn't persuasive there and I don't think it will sway the Court of Appeal either.
The Crown argued that Judge Stevenson did not have adequate regard for the victim impact statement where the complainant indicated that she had limited mobility and was embarassed going out. The reality is that Judge Stevenson weighed that statement with the fact that the complainant went out to Cowboys (a local bar) the same day of the assault. Further, there were no medical report and no medical treatment necessary as a result of the assault.
Simply put, the Crown disagreed with Judge Stevenson's findings of fact and the disagreed with the sentence imposed. This is not enough and the Crown came up short. Now, the Court of Appeal has not issued its decision or reasons in this matter. Perhaps I'm wrong in my assessment of the case and what the Court will ultimately decide. Perhaps, but I don't think so.
Raj Sharma JD LLM
Partner
Comments