THE COURT OF APPEAL FOR SASKATCHEWAN DENNIS BJARNE SORENSON and HER MAJESTY THE QUEEN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane COUNSEL: D.J. Sorenson unrepresented D.L. Rayner for the Crown DISPOSITION: Appeal Heard: September, 1993 Appeal Decided: 17 January, 1994 Reasons: 17 January, 1994 On Appeal From: P.C., J.C. of Prince Albert Appeal File: 6004 Reasons by: The Honourable Mr. Justice Vancise In concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane VANCISE J.A. The appellant appeals the sentence imposed by the trial judgeafter a trial where he was found guilty of assault contrary to s.267(1)(b) of the Code. He was fined $1200, with surcharge of $120 and placed on probation for 12 months. The sole issue on the sentence appeal is whether the trial judge erred in not ordering an unconditional discharge in the circumstances of this essentially domestic altercation. The appellant and his spouse arrived at the Avenue Hotel parking lot in Prince Albert where they by chance encountered his spouse's former husband, John Watson. Watson had apparently made some threat to the appellant's spouse concerning their children. The appellant warned Watson to stay away from his spouse and the children and to stay off the Muskoday reserve. Watson apparently turned towards the appellant with his fists clenched and the appellant struck him. Watson fell and the appellant kicked him in the groin and walked away. Watson recovered and attempted to continue the fight but was struck again and then threatened by the appellant. The appellant is 38 years old and at the time of the offence wasemployed as a long distance trucker by Westcan Bulk Transport. He hadno criminal record. He had been employed by Westcan Bulk Transport for number of years and was considered good and reliable employee. Westcan is transporter of bulk cargo in the four western provinces and the western United States. He was dismissed immediately after his conviction because he could not gain entry to the United States. His employer advised him that because of the nature of their business and the uncertainty surrounding the appellant's ability to enter the United States as driver of one of their trucks, they had no choice but to terminate his employment. The appellant had been unable to obtain similar employment at the time of the appeal. The sole issue here is whether the trial judge erred in not ordering an absolute discharge in the circumstances of this offence. Section 736(1) governs the granting of discharges after an accused has been convicted of an offence. That section reads as follows: 736.[662.1] (1) Where an accused, other than corporation, pleads guilty to or is found guilty of an offence, other than an offence for which minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life, the court before which he 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 probation order. Thus the issue here is whether it is in the best interest of the accused and not contrary to the public interest to order an absolute discharge. It is clear the appellant may appeal the finding of guilt and make the request to substitute discharge for the conviction and although such orders should be made sparingly, they should not be reserved exclusively for trivial or unintentional offences. See: R. v. Bram (1982), 30 C.R. (3d) 398 (Alta C.A.); R. v. Fallofield (1973), 22 C.R.N.S. 342 (B.C.C.A.). The appellant is, in our opinion, one of those persons in whose best interest it is to grant an absolute discharge. He is 38 years old and had never been involved with the criminal justice system at the time of this offence. He does not abuse drugs or alcohol. He was employed and had been continuously employed with the same employer for six years, he was and still is involved in stable family relationship and was supporting his spouse and her children. The offence, while not trivial matter, arose from domestic dispute surrounding certain actions and threats the victim had made towards the appellant's spouse and her children. That does not excuse the appellant's conduct but it is apparent that he is not person who normally resorts to violence and his conduct appears to be an aberration. In our opinion it would not be contrary to the public interest in this case to order an absolute discharge. major factor, but not the only factor, in this case is that criminal record will prevent the appellant from being re-employed by Westcan. Westcan has advised the Court that if the appellant were again able to cross the border and operate its equipment in the U.S., that his rehire status while not guaranteed would be "pretty fair". The policy of U.S. Immigration prohibiting persons with criminal records from entering the country and the procedure required to be followed to obtain permission to enter the U.S. makes it virtually impossible for the appellant or his employer to know with certainty whether he will be able to enter the U.S. as the driver of one of their trucks at any given time. In our opinion it is not contrary to the public interest to grant an absolute discharge in these circumstances. The appellant is not person requiring personal deterrence and rehabilitation through the use of correctional facilities or treatment centres is not factor. He is person of good character who made an error in judgment. The offence is not one that requires an element of general deterrence to deter others. There will therefore be an order setting aside the convictionand the determination of guilt and substituting therefore an absolutedischarge. If the fine and surcharge imposed have been paid, the sums so paid shall be remitted to the appellant. DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of January, A.D. 1994. VANCISE J.A. concur BAYDA C.J.S. concur LANE J.A.
38 year old truck driver with no previous criminal record was found guilty of assault contrary to ss.267(1)(b) of the Code. He was fined $1200, with a surcharge of $120 and placed on probation for 12 months.An altercation took place after his spouse's former husband had threatened his spouse and her children. He was dismissed from his employment as a truck driver immediately after his conviction because he could not gain entry into the United States, because he now had a criminal record. HELD: Conviction set aside; absolute discharge granted.