R. v. Hall (R.A.), (2013) 570 A.R. 272 (QB)

R. v. Hall (R.A.) (2013), 570 A.R. 272 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.046

Her Majesty the Queen (Crown) v. Robert Andrew Hall (accused)

(110758034Q1; 2013 ABQB 418)

Indexed As: R. v. Hall (R.A.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

September 16, 2013.

Summary:

The accused, a teacher in his early 60's, was found guilty of three offences, all directed to a 14-year-old autistic girl who was his student: (1) sexual assault (Criminal Code, s. 271); (2) sexual interference (s. 151); and (3) sexual exploitation of a person with a disability (s. 153.1). The victim described a "sit-up" exercise as the accused lying on his back on a workout bench and the victim straddling his crotch area while he performed sit-ups. Both were fully clothed throughout the exercise sessions. The accused did not touch the victim with his hands in any sexual way.

The Alberta Court of Queen's Bench applied the Kienapple principle to stay only the s. 271 sexual assault count, and imposed a sentence of three months for the s. 151 sexual interference count. The s. 153.1 and s. 151 offences were to be served concurrent. The Court also sentenced the accused to two years' probation and ancillary orders.

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 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused was found guilty of three sexual offences, all directed to a 14 year old autistic student of the accused - The defence submitted that the s. 271 sexual assault offence was subsumed within the s. 151 offence of sexual interference - The Crown agreed - The sexual assault charge was therefore stayed - The defence further submitted that the s. 151 offence was subsumed under the s. 153.1 offence of sexual exploitation of a person with a disability - The Alberta Court of Queen's Bench disagreed - For the Kienapple principle to apply there had to be both a factual and legal nexus between the charges - In this case, only the facutal nexus was established - "The language of the two provisions clearly indicates that while each requires sexual touching, there are other and distinct critical elements" - Section 151 only applied to a complainant in a specific age range - Section 153.1(1) was not restricted by complainant age, but by two other criteria, namely, complainant mental disability and the relationship between the accused and the complainant - The proper application of the Kienapple principle was therefore to stay only the s. 271 sexual assault count - See paragraphs 9 to 17.

Criminal Law - Topic 5609

Punishments (sentence) - General principles - Right to benefit of lesser punishment - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - [See Criminal Law - Topic 5950 ].

Criminal Law - Topic 5831.1

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

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5932

Sentence - Sexual assault (incl. by multiple parties) - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - The accused, a teacher in his early 60's, was found guilty of three offences, all directed to a 14-year-old autistic girl who was his student: (1) sexual assault (Criminal Code, s. 271); (2) sexual interference (s. 151); and (3) sexual exploitation of a person with a disability (s. 153.1) - The victim described the activity as the accused lying on his back on a workout bench and the victim straddling his crotch area while he performed sit-ups - Both were fully clothed, and the accused did not touch the victim with his hands in any sexual way - The misconduct occurred before Parliament amended s. 151 to increase the minimum possible sentence to 1 year of incarceration - The Crown sought a sentence of nine months' incarceration - The Alberta Court of Queen's Bench imposed a sentence of three months for the s. 151 sexual interference - The Court applied the s. 153.1 offence as an aggravating factor to the "dominant" s. 151 offence, and on that basis determined the appropriate global sentence - The s. 151 and s. 153.1 offences were to be served concurrent - The crime was at the lowest end of the sexual offence spectrum - The proper application of the Kineapple principle was to stay only the s. 271 sexual assault count -The sexual violation was a serious breach of trust - The case law suggested that the sentence proposed by the Crown was too long, and that a more appropriate range was less than four months - Deterrence of the abuse directed at a person with mental disability was a special consideration that warranted a longer sentence - Mitigating factors: the accused had been a productive member of the community; stable family life; conviction had a dramatic effect on his employment and social contact, affecting his ability to find and retain post-offence employment (contributed to both denunciation and deterrence) - See paragraphs 47 to 67.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - The accused was found guilty of sexual interference (Criminal Code, s. 151) - The victim was 14 years old - The misconduct occurred between March 1 and May 25, 2011 - The offence had the potential sentence range of 45 days to 10 years' incarceration - On August 9, 2012, Parliament amended s. 151 to increase the minimum possible sentence to 1 year of incarceration - The Alberta Court of Queen's Bench noted that s. 11(i) of the Charter of Rights required that the offender was subject to the lesser sanction - See paragraphs 7 and 8.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 44 D.L.R.(3d) 351, refd to. [para. 9].

R. v. Terlecki (1983), 42 A.R. 87; 1983 ABCA 87, affd. [1985] 2 S.C.R. 483; 64 N.R. 233; 65 A.R. 401, refd to. [para. 9].

R. v. S.J.M. (2009), 247 O.A.C. 178; 2009 ONCA 244, refd to. [para. 12].

R. v. D.D.B. (2009), 448 A.R. 146; 447 W.A.C. 146; 2009 ABCA 15, refd to. [para. 16].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 24].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Bedard, 2006 CarswellOnt 9307, affd. 2007 ONCA 883, refd to. [para. 24].

R. v. Innerebner (T.L.) (2010), 496 A.R. 196; 2010 ABQB 188, affd. (2013), 539 A.R. 382; 561 W.A.C. 382; 2013 ABCA 9, refd to. [para. 24].

R. v. Lee (C.J.) (2012), 524 A.R. 22; 545 W.A.C. 22; 2012 ABCA 17, refd to. [para. 25].

R. v. Penner (2001), 318 A.R. 51; 2001 ABQB 1133, refd to. [para. 27].

R. v. K.D.H. (2012), 546 A.R. 248; 2012 ABQB 471, refd to. [para. 43].

R. v. B.S.M. (2011), 502 A.R. 253; 517 W.A.C. 253; 2011 ABCA 105, refd to. [para. 45].

R. v. Lemmon (J.D.) (2012), 524 A.R. 164; 545 W.A.C. 164; 2012 ABCA 103, leave denied (2011), 421 N.R. 398, refd to. [para. 46].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 47].

R. v. D.K. (1994), 155 A.R. 269; 73 W.A.C. 269; 24 W.C.B.(2d) 215 (C.A.), refd to. [para. 49].

R. v. Bunn (T.A.) (2000), 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256; 2000 SCC 9, refd to. [para. 55].

R. v. Hammond (C.M.) (2009), 469 A.R. 317; 470 W.A.C. 317; 2009 ABCA 415, refd to. [para. 56].

R. v. Rhyason (B.P.) (2007), 404 A.R. 191; 394 W.A.C. 191; 2007 ABCA 119, affd. [2007] 3 S.C.R. 108; 365 N.R. 200; 2007 SCC 39, refd to. [para. 56].

R. v. S.S.S.Y., 2006 BCPC 665, refd to. [para. 59].

R. v. S.S.S.Y., 2008 BCSC 1652, refd to. [para. 59].

R. v. Patton (D.R.) (2011), 505 A.R. 394; 522 W.A.C. 394; 2011 ABCA 199, refd to. [para. 62].

R. v. Keough (J.A.) (2011), 512 A.R. 1; 2011 ABQB 312, refd to. [para. 62].

Counsel:

Rob Beck (Crown Prosecutor, Attorney General of Alberta), for the Crown;

Dino McLaughlin (Field LLP), for the accused.

This sentencing matter was heard on July 15, 2013, before Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. The Court delivered the following memorandum of decision, dated September 16, 2013.