Thursday, July 24, 2008

Ralph meets pieman, pieman wins - well, sort of.....

Former Alberta Premier Ralph Klein
Simple Simon met a pieman
Going to the fair;
Says Simple Simon to the pieman,
"Let me taste your ware."
Says the pieman to Simple Simon,
"Show me first your penny."
Says Simple Simon to the pieman,
"Indeed I have not any."
Regina versus Geoghegan, 2005 ABQB 139 (CanLII)
Court of Queen’s Bench of Alberta
Citation: Regina versus Geoghegan, 2005 ABQB 139
Date: 20050310
Docket: 0307 81264S1
Registry: Calgary
Between: Christopher Peter Geoghegan, Appellant
- and -
Her Majesty the Queen, Respondent
Corrected judgment: A corrigendum was issued on March 10, 2005; the corrections have been made to the text and the corrigendum is appended to this judgment.
________________________________________________
Reasons for Judgment of theHonourable Mr. Justice P.W.L. Martin
________________________________________________
Introduction
[1] On July 7, 2003, while the Premier of Alberta was addressing a Stampede breakfast in the presence of approximately 3,000 Calgarians, the appellant approached and pushed a pie in the Premier’s face. The appellant tried to flee but was apprehended and charged with assault. He eventually pled guilty to that charge and was sentenced therefore to 30 days imprisonment, to be served intermittently. He now says that sentence was inordinately harsh and asks that I reduce it to a non-custodial disposition.
Background
[2] The appellant, then 24 years old, had no prior criminal record. He identifies himself as a political activist with an abiding concern for the rights of the disadvantaged in our society. He advised that his assault of the Premier was not intended to harm him, just to bring attention to the causes of the poor and the homeless.
[3] The pre-sentence report described the appellant as a kind, compassionate, somewhat idealistic, albeit unfocussed young man, who continued to feel his conduct was justified.
[4] The Premier tendered a brief victim impact statement advising that the incident humiliated him and left him with a sore face and a ringing in his ear. It also caused him to cut short his address to those assembled and perhaps, most notably caused him to be more apprehensive for his safety which has resulted in increased security and less direct contact with his fellow citizens.
Position of the Parties
[5] The Crown sought a sentence of 30-days imprisonment; while the defence argued that no more than a period of probation or a short term of a conditional sentence of imprisonment was appropriate. The sentencing judge settled on a 30-days intermittent sentence with probation.
Analysis
[6] Counsel for the appellant has carefully reviewed the comprehensive Reasons for Sentence and identified what he alleges are a number of errors which resulted in an unfit sentence. He says those errors entitle this court to allow the appeal and impose a non-custodial sentence.
[7] I will briefly address some of those concerns.
[8] The appellant argues that the sentencing judge took into account other misconduct or criminal conduct alleged to have been committed by the appellant since this offence, which has not resulted in a conviction and which was not proven.
[9] I accept as a general proposition that an offender is only to be sentenced for the crime for which he/she has been convicted. R. v. Inwood 1989 CanLII 263 (ON C.A.), (1989), 48 C.C.C. (3d) 173 (Ont. C.A.). However, relevant previous conduct which may have amounted to an offence, but was not prosecuted may be admitted on sentencing in considering the character of the accused. Regina versus Inwood; and A. Manson, Law of Sentencing, (Irwin Law: 2001).
[10] In this case, the impugned information was placed before the court by defence counsel in response to a direct question from the sentencing judge. The purpose of the question, and the sole use of the information, was to determine whether the appellant represented a danger to the community, which is one of the criteria required to be addressed when considering a conditional sentence. The admissibility of this information for that restrictive purpose was not argued before me, but I am of the view that such information is admissible on that issue. To find otherwise would require the sentencing judge to remain wilfully blind to relevant information in reaching a conclusion on the potential dangerousness of the offender. That cannot be right. In my opinion, if there is post-offence misconduct relevant to the assessment of dangerousness, which has not resulted in a conviction at the time of sentencing, the Crown may allege the particulars of the offence, and if disputed or challenged, may be required to prove those allegations as directed. Regina versus Gardiner, 1982 CanLII 30 (S.C.C.), [1982] 2 S.C.R. 368.
[11] Therefore, I find the sentencing judge was right to consider this information. However, with respect, I disagree that the impugned information supported the conclusion that the accused was a danger to the community. The only suggestion of other misconduct here was that during a political protest or rally, the appellant entered into the lobby of a hotel, but left immediately upon being asked to do so. Defence counsel advised that as a result he was charged with an offence “akin to causing a disturbance.” In my opinion, notwithstanding that the appellant was released on recognisance to keep the peace and to be of good behaviour, this allegation of misconduct borders on the irrelevant and should not have been an impediment to the imposition of a conditional sentence. In other words, it does not support the suggestion that the appellant represents a continuing danger to society.
[12] The appellant next argued that the sentencing judge erred in his consideration of the appellant’s lack of remorse. In this case, the appellant was not remorseful for having hit the Premier with the pie, but sorry for having hurt him. He felt justified in what he had done but asserted that he would not do so again in the future. He made that promise to the sentencing judge and again to me. I accept that assurance.
[13] It is agreed that remorse may be considered a mitigating circumstance, but a lack of remorse may not be considered as aggravating. A review of the record reveals that the sentencing judge considered the appellant’s lack of remorse and ongoing sense of justification in his assessment of whether the appellant represented a danger to the community and not otherwise as an aggravating factor. He did not err in so doing.
[14] It was also argued that the sentencing judge found the appellant’s refusal to abandon his political views to be an aggravating circumstance. I find that a review of the Reasons for Sentence do not support that position. The sentencing judge was not looking for the appellant to abandon his political beliefs or limit his public protests, rather he was concerned that the appellant was still not prepared to respect the views and rights of others. There is no question that the appellant, like any other citizen, is free to hold political views different from those of the government and the majority of his fellow citizens. He is also free to publicly express those views and attempt to persuade others to adopt them. Likewise, he is free to vote against the government and to ask others to do so as well. However, he is not free to physically assault another person, including a politician, to gain notoriety for himself or his cause.
[15] It was not the appellant’s political views but his continued sense of justification which caused the sentencing judge to find that a high degree or moral blameworthiness accompanied the offence. He did not err in that assessment.
[16] The appellant next argued that the prevailing case law supports his position that a fit sentence for such an offence it does not require actual incarceration. The decision of Regina versus Brown, [2001] P.E.I.J. No. 121, was relied upon; and the decision of Regina versus Matrai, [1972] 2 O.R. 752 (Ontario C.A.), was distinguished by the appellant.
[17] The learned sentencing judge carefully considered those cases but concluded that a conditional sentence would not be consistent with the fundamental principals of sentencing. He concluded that a punitive, as opposed to a restorative sentence was required, in part because the accused continued to feel justified in what he did and to deter others from similar behaviour.
[18] I find no error in that conclusion. On the contrary, I think this is the kind of offence where a punitive sentence imposed on one offender will deter others from like activity. I say that because such acts are invariably planned to be executed at televised events which will bring the offender certain publicity and notoriety. It is reasonable to expect that if such misconduct is met only with a non-custodial sentence, the temptation for other like-minded individuals to seize their 15 minutes on the stage in this way will be too great for them to resist. The notion that politicians are fair targets for this kind of misconduct, or that it falls within acceptable limits of freedom of speech and expression, is absolutely false. Such acts are offensive and upsetting to all fair minded members of society. There is nothing funny or appropriate about such conduct. It must be denounced and deterred. On that basis alone the sentence imposed is justified.
[19] In all of the circumstances, I find the sentence was both fit and appropriate. Accordingly the appeal is denied.
Heard on the 17th day of February, 2005.
Dated at the City of Calgary, Alberta this 17th day of February, 2005.
__________________________
P.W.L. Martin
J.C.Q.B.A.
Appearances:
H. Hagglund, Esq. For the Crown
J. Kelly, Esq. For the Accused
___________________________________________
Corrigendum of the Reasons for Judgment of
The Honourable Mr. Justice P.W.L. Martin
___________________________________________
In the last sentence of paragraph [13] the word “error” has been changed to “err.”
Source: "Truth To Power" (www.accesstoinfo.com)

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