R. v. Gunn, 2009 ABPC 178 (CanLII)
Date:
2009-06-22
File number:
070949235P101001
Other citation:
473 AR 382
Citation:
R. v. Gunn, 2009 ABPC 178 (CanLII), <http://canlii.ca/t/245fx>, retrieved on 2020-03-26
In the Provincial Court of Alberta
Citation: R. v. Gunn, 2009 ABPC 178
Date: 20090622
Docket: 070949235P101001
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Melissa Lauren Gunn
On or about the 5th day of July, 2007, at or near Calgary, Alberta, did with intent to mislead, unlawfully cause a peace officer to enter on or continue an investigation by reporting that an offence had been committed when it had not been committed, thereby committing public mischief, contrary to Section 140(1)(c) of the Criminal Code of Canada.
Issue
[4] The Crown submitted that the appropriate sentence is 60 to 90 days incarceration followed by one year of probation.
Facts
AGREED STATEMENT OF FACTS
Pursuant to the provisions of Section 655 of the Criminal Code of Canada, the following numbered paragraphs contain facts, which are alleged by the Crown and admitted by the Accused, MELISSA LAUREN GUNN, for the purpose of dispensing with formal proof thereof on charges:
That MELISSA LAUREN GUNN:
On or about the 5th day of July, 2007, at or near Calgary, Alberta did with intent to mislead, unlawfully cause a peace officer to enter on or continue an investigation by reporting that an offence had been committed when it had not been committed, thereby committing public mischief, contrary to Section 140(1)(c) of the Criminal Code of Canada.
The Accused, MELISSA LAUREN GUNN hereby admits the following:
1. On July 5, 2007[,] Melissa Gunn, (the accused), was employed at Euro-Tile located at 936, 42nd Avenue S.E.
2. The accused completed work at approximately 5:00pm [sic] on July 5, 2007. Shortly thereafter she phoned her father, Michael Gunn, and asked for a ride home from work. He told the accused that he was on his way.
3. The accused walked to the C-Train station located at 42nd Avenue and Blackfoot Trail. On the way to the station she purchased a slurpee from a nearby Macs store. Attached are photos of the Macs store and the C-Train Station.
4. After purchasing the slurpee, two males approached her and attempted to entice her over to the van to start a conversation. The accused refused and continued to walk to the train station.
5. The accused then caught the C-Train to the Bridlewood Station. The accused’s father was not at the station. He arrived 30 minutes late.
6. The accused’s father picked her up and at that time the accused told her father that when she was walking to the C-Train from work two men had assaulted her and tried to kidnap her. Attached is the witness statement of the accused written July 5, 2007.
7. As a result of this conversation the accused’s father phoned the police.
8. Detectives Straub and Baker were assigned to investigate this complaint.
9. On July 6, 2007[,] a follow up interview was conducted with the accused, her story remained the same.
10. On July 7, 2007:
a) A media release was done in hopes of gathering further information. The media release was later published in the Calgary Herald.
b) Neighbourhood inquires [sic] were conducted.
c) Video surveillance was requested from the LRT station and the Macs store.
d) The accused accompanied police to her place of employment and walked with the police to the parking lot where the attack had allegedly occurred.
e) The police seized the clothing that the accused indicated she was wearing during the attack and sent the clothing for analysis.
11. On July 10, 2007[,] investigators viewed the video from the LRT station.
12. On July 12, 2007[,] investigators retrieved and viewed the video from the Macs store.
13. On July 13, 2007[,] investigators conducted a follow-up interview with Michael Gunn.
14. On July 20, 2007[,] investigators asked the accused to attend the district office for a further interview. During this interview the accused admitted that the story she provided the police was false.
15. At 09:37 the accused provided a further statement to police. She indicated that two men approached her and spoke to her and that she believes these men are associates of her ex-boyfriend, Robert Beck. This was as a result of police asking the accused whether she could think of anyone who would be trying to contact her.
16. On July 24, 2007[,] a videotaped statement was taken from Robert Beck. Mr. Beck claims that the relationship between him and the accused had ended several months ago. He stated that he had no contact with the accused except for an email sent approximately a month and ½ previously to discuss re-payment of the damage deposit, he states she never responded to the email and he never followed up with it. Mr. Beck claims that he has no animosity for the accused and has no reason to speak with her, nor did he send two friends to speak with her. He also indicated that he has a new relationship and has moved on with his life.
17. On July 26, 2007[,] police arranged to meet the accused at her work. She was arrested on that date. The accused stated to police that she was very sorry for lying and that she had learned her lesson.
18. All of this occurred in Calgary, Alberta.
[7] There are a number of relevant facts about the accused which are set forth in a report (Exhibit 4) co-authored by Nicole Peden (Provisional Clinical Psychologist) and Michael Lee (Registered Psychologist; Supervising Psychologist). Both psychologists practice at Forensic Assessment and Outpatient Services (FAOS) located at the Peter Lougheed Centre in Calgary. Those additional facts, which I accept, are as follows.
1. Ms. Gunn is currently 25 years of age, and was 23 years old at the time of the offence.
2. She has no criminal record.
3. Ms. Gunn has a positive relationship with her mother and brother, but a strained relationship with her father.
4. She has “a relatively stable employment history” and has worked in sales for the last five to six years.
5. She does not have substance abuse or gambling problems.
6. While in good physical health, she “described life long, periodic feelings of anxiety and depression and a maternal family history of the same.” The psychologists recorded their diagnoses as: “Generalized Anxiety Disorder; Major Depressive Disorder, Recurrent, Mild Without Psychotic features, In Partial Remission;....”
7. The psychologists stated in their “Summary and Recommendations”:
... She previously attended three months of psychological treatment for anxiety and depression. The clinical interview, collateral information, and psychological testing indicate[d] that Ms. Gunn deals with anxiety, depression, and possible attention difficulties. The results of the cognitive testing indicate that Ms. Gunn is of average intelligence, and has average academic skills with the exception of a possible mathematics disorder. Ms. Gunn denied charges and/or convictions as a juvenile or as an adult and stated that the index offence was her first offence.
In reference to the index offence, Ms. Gunn accepted full responsibility for her behaviour and verbalized motivation to attend individual therapy for treatment of anxiety and depression. She acknowledged a number of factors that were likely involved in committing the index offence and largely attributes her behaviour to the fact that she stopped taking Effexor, and thus experienced an increase in depressive symptoms and anxiety. She also identified work stress as significant in that she endured harassment at work as well as while travelling to and from work. Finally, she described her relationship with her father in negative terms and stated that she was angered by his response to her distress.
8. With respect to the risk of the accused reoffending, the psychologists stated:
Risk assessment was determined utilizing data from clinical interview, psychological testing, collateral information, and file history. Ms. Gunn’s risk for re-offending is considered very low. If she were to deal with her emotional problems, her risk would be considered even lower.
9. The accused had been prescribed the medication Effexor for her anxiety and depression. She had taken it intermittently for approximately two years. Her use of Effexor was described in Exhibit 4 in these words:
... Ms. Gunn reported that when she was 21 years old she experienced an increase in her anxiety and depression to the point where it was unmanageable and she felt “out of control.” She described that she began to experience claustrophobia on the LRT and that this feeling “slowly carried over to work” and other activities like going out with friends. She also noted that she had worries about her safety; for example, she worried that someone would break in and harm her when she was home alone. Ms. Gunn informed that she is afraid of blood and injections and has “passed out” when getting a needle. She explained that when she was 22 years old, her family doctor prescribed Effexor for her anxiety and depression for approximately two years which she took intermittently. For example, she explained that upon taking Effexor for six months, she “felt better” but was bothered by the side effects (i.e., light headed and dizziness) and the fact that she was taking medication, so she stopped taking them for a few months, only to resume again when she felt worse.
[8] Finally, one finds in Exhibit 4 the following expanded explanation (which I accept) of the events leading to this charge:
In reference to the index offence, Ms. Gunn detailed that she was not taking her medication (i.e., Effexor) for two months (due to unpleasant side effects) and was experiencing an increase in anxious and depressive symptoms. She described work as “crazy” explaining that they were extremely busy, short staffed and that she dealt with a “nightmare” of a manager who “pushed you to work”, “degraded employees” with respect to their intelligence, and often referred to female employees as “eye candy” for the customers. She explained that she works in an industrial area and walks to and from the LRT station to work, on a road that has many construction workers who often harassed her (e.g., honked their horn, made lewd remarks toward her.) She informed that since she was experiencing increased anxiety and depression, she had paranoid thoughts such as “it is not safe” to walk down this road by herself and felt like someone might have watched her enough to be familiar with her daily routine.
Ms. Gunn reported that on the day of the offence, she left work and was walking to the LRT station when two men in a van passed her, honked the horn and the passenger said “something degrading like nice ass.” She noted that they pulled into a parking lot that she was approaching and continued to harass her with statements such as “Where you going? Come with us. Why won’t you look at us?” Ms. Gunn reported that she started to panic and ran toward the LRT station, which was “packed” when she arrived. She stated that she got on the crowded train, felt like she was “going crazy” and described symptoms consistent with a panic attack. She noted that she called her father to pick her up, but that he was not at the train station when she arrived, at which point she called him again and he informed her that he was eating and would pick her up when he was finished. He arrived 20 minutes later which “felt like a lifetime” and when he saw her in distress (i.e., shaking and crying) “looked at me like I was insane” and questioned “what the hell’s wrong with you?” She stated that she blurted out a story that two guys tried to abduct her because she “felt like that could have happened” and wanted to justify her emotional reaction. She described that her father made her file a police report, that she was in “complete shock,” wondered how to tell the truth, and was “hoping it would blow over.” When asked by the investigators if she knew of someone who might want to harm her, she cited her ex-boyfriend Rob because she believed that he would harm her given the chance due to the conflict around their break-up.
Ms. Gunn explained that she was “mad” at her father for not understanding her distress, and that she “wanted to scare him a bit.” She noted that at the time, she “wasn’t thinking about the outcome” but wanted to see emotion from her father. She stated that the investigation was getting more and more intense (i.e., police investigators were finding inconsistencies), that she was “terrified” and that she finally admitted the report was falsified. She stated “I obviously won’t do it again” explaining “I just had a bad day” and “those guys freaked me out.” She cited this as the worst experience she has ever had, but noted it made her “a lot more aware of my anxiety and what a problem it is” and “the need to control it for my health.” Ms. Gunn’s father expressed that his daughter “fabricated a story that got out of control,” that she was afraid to tell him the truth, and failed to consider the consequences. He informed that he did not realize she was upset when she telephoned him for a ride home and stated that she has not over-reacted in the past and therefore believed her story and was quite concerned.
It appears that there were a number of factors involved in Ms. Gunn committing the index offence. She largely attributes her behaviour to the fact that she stopped taking Effexor, and thus experienced an increase in depressive symptoms, panic attacks and generalized anxiety, especially with respect to feelings of her general safety. She also identified that she had a particularly stressful day at work, and endured harassment both at work and by the men in the van that blew the horn at her. Finally, she noted that she does not have a good relationship with her father, that he was unaware she deals with anxiety and depression, and she was angered by his response to her distress and “wanted to scare him a bit.”
Law and Analysis
[9] Section 718.1 states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The fundamental purpose of sentencing is set out in section 718 in these words: “...to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more” of the objectives set out in section 718 (a) to (f) inclusive.
[10] Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. Section 718.2(b) provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[11] The sentencing objectives in cases of public mischief were discussed by Côté, J.A. in R. v. Ambrose (B.A.) (2000), 2000 ABCA 264 (CanLII), 271 A.R. 164 (Alta. C.A.) at paragraphs 22-26:
E. Denunciation and General Deterrence
22 Section 718 also sets some other objectives for a sentence. The sentence may denounce unlawful conduct, and deter other persons from committing offences. The offence in question is that one, with intent to mislead, causes a peace officer to enter on or continue an investigation by reporting a nonexistent offence. When prosecuted by indictment (as here), it carries a sentence of up to five years’ imprisonment (s. 140(1)(c)). It is in Part IV of the Code, offences against the administration of law and justice.
23 Is mischief a serious crime? The appellant’s counsel does not argue that it is not. In my view, offences against the administration of justice have great potential to be serious because they pervert the whole regulating system for behaviour of everyone in Canada. The effect is like a hacker who gains access to the central operating systems of a computer: any and every bad and malicious result can flow from that. If one looks at the range of maximum sentences in Part IV, one sees that the 5-year maximum for mischief comes about in the middle of the range for maxima there. Where a crime has a 5-year maximum, I cannot say that 2 years is prima facie an unusually severe sentence for that crime.
24 Furthermore, the sting of the offence here is not causing the police to waste their time (though that may be a necessary element of the crime). The real harm done is the danger that innocent persons might be prosecuted and lose their livelihoods. Even if no perjury were ever committed, the victims of such scheming might undergo many months of fear, and incur heavy legal expenses. Someone publicly accused of a crime also runs the risk that many people will think that the smoke did indicate a fire. In my respectful opinion, the seriousness of mischief can vary a great deal from case to case; the question is highly fact-sensitive.
25 Should deterrence and denunciation be predominant sentencing objectives for the crime of mischief? In my view they are where the mischief is an offence against the administration of justice. But of course the facts of the individual case have weight too. The appellant’s counsel cites R. v. Hudon (1996), 1996 ABCA 331 (CanLII), 187 A.R. 345 (Alta. C.A.). In its paragraph [9], our Court speaks of “the important consideration of deterrence,” though I admit that that is a mere sentencing memorandum of judgment and so of little weight.
F. Harmful Results
26 Some violations of s. 140(1) would not be very harmful, and would only lead to the police wasting their time and resources. For example, one might report a case of arson, yet a visit to the scene would show that no building revealed any signs of fire damage.
[12] In the case at bar, the particular facts of both the offender and the offence lead me to conclude that while the sentencing objectives of deterrence and denunciation are important, so too is the rehabilitation of Ms. Gunn. She suffers from anxiety and depression, and has been prescribed medication for those difficulties. For quite understandable reasons (i.e., the side effects of the drug), the accused made the unwise decision to use the medication intermittently, and had not been using it for the two months preceding the offence. That led to increased levels of anxiety and depression which, when coupled with Ms. Gunn’s chronically “strained” relationship with her father, and his ostensibly insensitive reaction to her emotional state when he arrived at the LRT station, triggered a most inappropriate act on the part of Ms. Gunn. It was a matter of impulse, and had as its immature goal the “scaring” of her father.
[13] The Crown submitted that the accused’s overall conduct was not impulsive because it continued on. In my view, Ms. Gunn had put herself in a situation from which she could not see a way to extricate herself without incurring further difficulty. While subsequent actions on the part of an offender can lead one to conclude that the offensive behaviour, taken as a whole, could no longer be characterized as “impulsive”, that is not the case in Ms. Gunn’s situation. Her initial act was the product of impulse, and her subsequent actions were a continuation of that impulsive behaviour.
[14] The Crown also submitted that Ms. Gunn’s misleading of the police was made more serious because of her reference to her former boyfriend. There is no doubt that naming a specific individual as the perpetrator of a crime which was never committed is extremely aggravating (see: R. v. Ambrose (B.A.), supra). However, one must consider Ms. Gunn’s “naming of the boyfriend” in the context of how it arose.
[15] The Agreed Statement of Facts records that on July 20, 2007, the police again interviewed Ms. Gunn, and she admitted that “the story she provided to police was false” (see paragraph 14). Then, paragraph 15 says:
15. At 09:37 the accused provided a further statement to police. She indicated that two men approached her and spoke to her and that she believes these men are associates of her ex-boyfriend, Robert Beck. This was as a result of police asking the accused whether she could think of anyone who would be trying to contact her.
[16] From its position in the Agreed Statement of Facts, I can only conclude that the question asked by the police about “who would be trying to contact her” came after she had admitted that her report of a crime was false. Consequently, the police could not have taken Ms. Gunn’s reference to Mr. Beck (the former boyfriend) as being an allegation that he had committed an offence the report of which she had already repudiated. The July 24, 2007, interview by the police of Mr. Beck could not have had been in furtherance of an investigation of a matter which by then the police knew had not occurred. Accordingly, I think Ms. Gunn’s “naming” of Mr. Beck to the police is very different from cases where a particular individual is named in relation to an alleged offence which, though in reality was fictitious, was still thought to be genuine by the police (e.g., R. v. Ambrose (B.A.), supra). The question from the police about who might be attempting to contact her must have related to the actual fact (admitted in paragraph 4 of Exhibit 3) that two males did approach Ms. Gunn, and did attempt “to entice her over to the van to start a conversation.” Her response to the police questions about that part of the incident (which actually did occur) did not amount to accusing Mr. Beck of an assault which did not occur. Her response is not an aggravating factor in this sentencing.
[17] I am also of the view that the case at bar is not nearly as serious as the facts in my previous case of R. v. S.C.S., 2003 ABPC 181 (Alta. Prov. Ct.). In that case, the accused made false accusations that police officers had stolen $200.00 from him in a traffic stop. He did not “name” any officers, but the police service, understandably, was very concerned that it had two rogue officers in its ranks. The accusation was an attack on the integrity of the police service. No such impugning of the justice system was present the case at bar.
[18] Ms. Gunn’s counsel submitted that an appropriate disposition is the granting of a conditional discharge.
Where an accused, other than a corporation, pleads guilty or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under section 731(2).
[20] The Crown proceeded by way for indictment, the maximum punishment is five years incarceration, and there is no minimum punishment prescribed for this offence. Accordingly, the first two preconditions for a discharge are met.
[21] When considering an application of a discharge, I am guided by, and respectfully adopt, the following words of the Honourable Judge Cioni of this court in R. v. McTaggart (1990), 108 A.R. 74 (Alta. Prov. Ct.) at p. 77:
It is not a matter of sympathy for any accused, or even the ability of able counsel to stack up enough 'points' to make any accused a sympathetic figure, or an accused being 'lucky' enough to have adversity put forward. Discharges are not rewards; they are dispositions at law within a test given and intended to be used by the Parliament of Canada. ...
Discharges are given in those cases where the test in law is satisfied, most commonly on the basis of impact and proportionality, that is, the consequences of conviction outweigh that which is necessary to satisfy the public interest.
(1) is the proposed discharge in the best interests of the accused?
(2) is the proposed discharge contrary to the public interest?
[23] Our Court of Appeal in R. v. MacFarlane (1976), 1976 ALTASCAD 6 (CanLII), 55 A.R. 222 (Alta. C.A.) commented on discharges and gave guidance as to certain factors which ought to be considered in such applications. At pp. 223-224, the Court said:
As the Chief Justice of British Columbia, in the case of R. v. Fallofield, 1973 CanLII 1412 (BC CA), [1973] 6 W.W.R. 472, pointed out, there are two conditions precedent to the exercise of the jurisdiction to grant a discharge, either conditionally or absolutely.
The first is that the court may consider that it is in the best interests of the accused. From that point of view, one may well have to consider whether a short term of imprisonment and the supervision of probation may in the long run be in the accused's best interests as deterring him from further criminal activity and removing him, at least for a time, from the very environment which may have generated such activity; but short of this, in almost every case a discharge would certainly be in the interests of the accused.
The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. In the consideration of this aspect of the legislation, we think that it should be first said that a discharge, conditional or absolute, should not be granted routinely. We think such a discharge must not be treated as a substitute for probation and suspension of sentence.
The movie UnForgiven and Lawless were warnings; not permission . We are of the view further that the jurisdiction should be used sparingly. It is to be borne in mind that one of the strongest deterrents to criminal activity, particularly in the case of those who have no records, is the fear of the acquisition of a criminal record.
In consideration of the exercise of the discretion to grant an absolute or conditional discharge, we emphasize that it is quite impossible to lay down rules which would cover the myriad of situations which may appear before a judge confronted with the task of appropriate sentence in any given case. We are of the opinion, however, that the following are some of the relevant factors which must be considered in every case.
Firstly, there is the nature of the offence. While it is to be borne in mind that the section may be used in respect of any offence other than one for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life, or by death, one must nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious the offence, the less frequent would be the use of a discharge in sentencing. It would, for instance, be a most exceptional case where a crime involving violence would be dealt with by an order of discharge.
Secondly, one has to consider the prevalence of the particular offence as it may exist in the community from time to time.
Thirdly, one must consider whether an accused stood to make some personal gain at the expense of others, as distinct from some activity which might be in the nature of a prank or in respect of which his motives were other than self-interest.
Fourthly, where the offence is relating to property, as here, the value of the property destroyed or stolen must be relevant. The theft of a ballpoint pen would not ordinarily be regarded as seriously as the theft of a colour television set.
Fifthly, we think that it is relevant to consider whether the crime was committed as a matter of impulse, and in the face of unexpected opportunity, or whether it was calculated.
Sixthly, we think it relevant to consider whether the circumstance that an accused has committed the offence is something which should be a matter of record so that members of the public may have the opportunity of being aware of the fact that that accused had committed the offence in question. Theft from an employer would, in most cases, involving as it does a breach of trust, not warrant a discharge, as it may be thought that prospective employers should have the means of knowing something about the character of the prospective employee. Even here there may be exceptional circumstances, such as a falling-out, or a civil dispute about money which did not amount to colour of right, but which might result in the offence being in the nature of a technical one.
(1) Nature of the Offence
[25] The Crown proceeded by way of indictment, indicating that it considers the case to be of a more serious nature. As noted in R. v. Ambrose (B.A.), supra, each case is fact sensitive. While the offending behaviour of the accused resulted in the waste of police resources, and the involvement of the press in a request of the public for information, it did not target a specific individual for investigation.
(2) Prevalence of the Offence
[26] The offence of public mischief is not prevalent the way the offence of theft under $5,000.00 is prevalent, but it is by no means unheard of in the courts. There is nothing before me to suggest that the crime has taken on increased frequency.
(3) Personal Gain
[27] There was no personal gain (in the traditional sense) sought by the accused. She reacted impulsively in response to what she perceived to be her father’s dismissive reaction to her distress when he met her at the LRT station.
(4) Value of the Property
(5) Was the Crime a Function of Impulse or Calculation?
[29] I have already concluded that the initial false reporting of a crime was the product of impulsive behaviour borne of psychological difficulties suffered by the accused as well as a history of a strained relationship between the accused and her father. I have also concluded that her persistence in confirming the false report was a result of her not knowing how to extricate herself from the situation she had created. She was afraid, not malicious.
(6) Should this Offence be a Matter of Public Record?
[30] In short, the answer is “no”. The accused is a young woman with no criminal record. Her offending behaviour was very much the product of her psychological and relationship problems. She acted immaturely in reaction to her perception that her father was not taking her distress seriously. This offence does not bespeak a character flaw which should be made known to those who have dealings with her (as is often the case if a breach of trust is involved). No particular public good is served in the specific circumstances of this offender and this offence in labeling Ms. Gunn as a person who has been convicted of an offence which is generally characterized as being against the administration of justice. Indeed, it is arguably against the public interest to so label such a young and otherwise productive member of society.
[31] With respect to deterrence and denunciation, I am satisfied that her involvement in the legal process fully addresses specific deterrence, and that a conditional discharge would not hamper the efforts of all courts to send the appropriate messages of deterrence and denunciation in relation to the offence of public mischief. I respectfully adopt the words of Huband, J.A. (speaking for the majority) in R. v. King (1990), 1990 CanLII 11107 (MB CA), 66 Man. R. (2d) 130 (Man. C.A.) which was a case involving the proper sentence for an armed robbery. In imposing a sentence of 90 days imprisonment followed by two years of probation, his Lordship said, at p. 133:
[14] I have not overlooked the significance of public deterrence as a factor in sentencing. When exceptional circumstances give rise to a more lenient sentence than the norm, it does not mean that the regular sentencing pattern has been abandoned. It does not send signals to those with robbery on their minds that leniency is the new order of the day. It simply means that within any sentencing structure there must be room for the exceptional cases where the depth of contrition and the good prospects for rehabilitation will cause the scales to tip to the accused’s advantage. That flexibility within the system is highly desireable.
[32] I am satisfied that it would be in the best interests of the accused to be granted a conditional discharge, and that it would not be contrary to the public interest.
Sentence
[33] Pursuant to section 730(1) of the Criminal Code, I direct that the accused be discharged on the conditions set out in a probation order of 12 months duration.
[35] Pursuant to section 737(2)(b)(ii), I impose a Victim Surcharge of $100.00, and in default of payment a period of incarceration calculated pursuant to section 734(5).
Dated at the City of Calgary, Alberta this 22nd day of June, 2009.
A.A. Fradsham
A Judge of the Provincial Court of Alberta
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Appearances:
V. Faulkner
for the Crown
I. McKay
for the Accused
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