Bruce MacDonald's wife cheated on him. He was angry. His anger turned into physical violence. He was charged. He pleaded guilty and was convicted. He was sentenced to five and a half years in jail. He appealed. His appeal was dismissed: 2012 BCCA 155.
Read MoreNew & Notable: Gladue Reloaded!
Sentencing is a difficult if not enigmatic beast. Perhaps not surprisingly given the myriad of considerations together with the uniqueness of every offence and every offender. The recent cases of Ipeelee and Ladue illustrate this point: R v Ipeelee, 2012 SCC 13. Both were aboriginal offenders; both were sentenced for breach LTSOs; both received 3 year sentences at first instance; Ipeelee appealed to the Ontario Court of Appeal unsuccessfully; Ladue successfully appealed to the British Columbia Court of Appeal (reducing his sentence to 1 year). The Supreme Court held that one year sentences were appropriate for both.
Read MorePending & Prominent: Reviewing Crown discretion
I wrote about the case of R v Gill, 2011 ONSC 1145 in Mack's Criminal Law Bulletin and have blogged about it on two occasions: Exercising, or is it excising, Crown discretion; Protecting the Quasi-Judicial Function of the Crown. That case was argued before the Ontario Court of Appeal on Thursday. We will see if they agree with my conclusion:
The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601.
DG Mack
News: Two years less a day for Luangpakham
Sommit Luangpakham was sentenced today to two years less a day by Justice Monique Metivier [see report by Norman Jack and Anna Drahovzal; see also CBC report]. Luangpakham was convicted by a jury of, inter alia, dangerous driving and failing to remain after he struck and injured five cyclists (Mark White, Cathy Anderson, Robert Wein, Rob Harland and Hilary McNamee) on January 19, 2009 while driving his van in Kanata [see David Hollingsworth's review of the evidence of the cyclists in his blog Personal Injury and Accident News].
The sentence also included a one year driving prohibition.
DG Mack
New & Notable: Always double check your math!
Cuong Luong pleaded guilty to possession of a loaded restricted firearm. The mandatory minimum sentence for this offence - as it was his second - was five years. A joint submission was put before the sentencing judge of five years. Luong had spent 16.5 months in jail prior to sentencing. After giving Loung credit - at 2 for 1 - the sentencing judge intended to impose a sentence that would equate to five years. However, in following the joint submission, the sentencing judge also followed the erroneous math of the Crown who said the remaining time would be 17 months. In fact it should have been 27 months [five years = 60 months; 60 - (16.5 X 2) = 27].
The Crown brought an application before the sentencing judge to correct the error; the sentencing judge held that he was funtus officio. (As an aside, it is not clear that the sentencing judge was in fact funcus officio; there is authority that a judge can clarify a sentence after it is imposed: R v Malicia, 2006 CarswellOnt 5539 (CA)). Given the judge's view that he was functus, the Crown brought an appeal: 2011 ONCA 780.
On appeal the Court of Appeal agreed that the sentence was illegal. The respondent argued, however, that he would be prejudiced by the addition of 10 months. Even if that were so, the court held the error must be corrected.
The Court of Appeal corrected the sentence and added 10 months.
DG Mack
Quotable Quote: Context is everything
Robert Julien pleaded guilty to, inter alia, possession of cocaine for the purposes of trafficking. During submissions the Crown argued that the prevalence of this type of offence in the Cornwall area should be an aggravating factor. The Crown did not call any evidence to support this submission.
In rendering his decision on sentence Pelletier J considered this threshold issue: R v Julien, 2011 ONSC 5989. Pelletier J concluded that "emperical [sic] or statistical evidence is required to advance, as an aggravating factor, that a given offence is prevalent in the community as to be [sic] merit a sentence which may be more punitive than it might otherwise be" [para 4].
Pelletier J continued, however, and added, "a Court is capable, as an observer of its own process, to consider whether the prosecution of a particular crime represents either an isolated or frequent occurrence" [para 5]. His Honour continued with the following quotable quote:
While the recurrence of a certain type of prosecution cannot be viewed as an aggravating factor absent evidence showing that it is disproportionately frequent, it can nonetheless be examined and, if appropriate, considered as one factor in balancing the various sentencing objectives. Stated otherwise, a Court dealing with an offense seldom before the Courts may be less inclined to consider denunciation and deterrence as primary sentencing objectives, depending of course on the seriousness and nature of the offense. Conversely, a Court dealing with the disposition of an offense that is frequently before the Court would, logically, consider that the public safety objectives of the sentencing exercise call for a sentence with a sufficient denunciatory and deterrent effect. In all of the circumstances, I have concluded that there is no factual foundation for concluding that the possession of cocaine for the purposes of trafficking represents a societal problem in Cornwall and the surrounding area beyond what is being experienced in other communities in Ontario and the rest of the country. That said, offenses of trafficking in hard drugs are frequently before the Courts in this community. In addition, the Court is regularly confronted with cases involving serious offenses against the person, including homicides, where drugs are a central feature of the commission of the offense. Cases involving drug trafficking are not isolated matters before this Court, nor are cases where drugs figure prominently in related property and serious personal injury offenses.
Accordingly, the determination of an appropriate sentence in the present case takes into consideration, along with other factors, that the use and sale of addictive and destructive drugs is a societal problem that has not escaped the City of Cornwall and the surrounding area; and one which must be confronted having regard to need to denounce and deter the conduct as a means of promoting a safe and peaceful community [paras 6-7]; [emphasis added].
Pelletier J sentenced Julien to 15 months incarceration and 18 months probation.
DG Mack
New & Notable: 10 Years Imposed on Roks by OCA
Adrian Roks recently had his second-degree murder conviction overturned by the Ontario Court of Appeal: R v Roks, 2011 ONCA 526. I blogged about this case in a post entitled "The Paperback Novelist Strikes Again".
The Court of Appeal has now exercised its power under section 686(3)(b) of the Code and imposed a sentenced for the manslaughter conviction it substituted in place of the second-degree murder conviction: R v Roks, 2011 ONCA 618. Roks received the equivalent of a ten year sentence less pre-sentence custody and time served prior to the Court of Appeal's ruling [paras 27-28].
DG Mack
New & Notable: Setting the Record Straight on Jarvis
In the recent decision of R v Woodward, 2011 ONCA 610 the Ontario Court of Appeal set the record straight about its previous decision in R v Jarvis, 2006 CarswellOnt 4863 (CA). It also sent a clear message about the appropriate principles and range of sentencing in luring and child sex assault cases.
Thomas Edward Charles Woodward was charged with offences including luring (172.1(1)(c)), sexual touching (151(a)) and sex assault (271) in relation to his Internet luring and sexual contact with a young person. This young person was 12 years old and lived with her parents. In August or September 2006 Woodward sent a private text message to the complainant – he was 30 years old at the time. The text message originated through a chat site that the complainant could access via her mobile phone. The text message asked the complainant if she would sleep with him for $57 million. The complainant did not reply. A subsequent text message again asked the complainant if she wanted to have sex; this time she replied [para 7].
That response led to further texts numbering in the hundreds. These texts ultimately led to a meeting [para 8]. In the lead up to this meeting Woodward had offered the complainant increasing amounts of money to sleep with him; he even let her listen in on a call that was purportedly with a Bank of Montreal employee who indicated that Woodward had $300 million in his account. This lead the complainant to believe that Woodward had that kind of money and influenced her decision to meet him as her family was experiencing financial problems [para 10].
When the complainant met with Woodward he purportedly called the Bank of Montreal and transferred money into an account in her name. Thereafter he initiated sexual acts with the complainant including having her perform fellatio on him and having sexual intercourse with her [para 12].
Woodward was convicted after trial by Justice Nicklas. The judge ultimately sentenced Woodward to six and a half years jail. He appealed.
On appeal the appellant the court outlined the ground of appeal relating to the sentence as follows:
The appellant submits that the six-and-one-half year sentence he received manifestly exceeds the “range of reasonableness for a one-time isolated incident with no overt threats or violence and no abuse of trust or authority.” He points to a number of authorities, including some from this court, involving offenders who engaged in online sexually explicit conversations with undercover police officers posing as children under the age of 14 [para 53].
One of the cases relied upon by the appellant was Jarvis. With respect to Jarvis, Moldaver JA – on behalf of the court – noted that the reliance appears to be based on para 31 of that decision wherein Rosenberg JA offered the following: “decisions of trial courts that were placed before us suggest that the range of sentence for this offence [luring] generally lies between twelve months and two years” [para 54].
Moldaver JA then turned to discuss whether that comment properly set a range. After suggesting that was not the intention of Jarvis, Moldaver JA then offered the following clear statement about the future impact of Jarvis:
Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime [para 58].
Moldaver JA ultimately upheld the six and a half year sentence imposed by Justice Nicklas and concluded with the following quotable quote:
Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant’s past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive [para 75]; [emphasis added].
DG Mack
New & Notable: What would you do with $4.7 Million?
$4.7 million is a lot of money to spend; especially when none of it is legally yours to spend. John Topp either already has or someday will be doing just that. This after the Supreme Court recently dismissed the Crown’s appeal from sentence: R v Topp, 2011 SCC 43.
Read MoreNew & Notable: Deterring Commercial Fraud
Drabinsky and Gottlieb established Cineplex in the 80s. The two quickly built that business to great success and in 1989 left Cineplex after acquiring its live entertainment division. The two then formed a partnership called MyGar. This company operated until the sprint of 1993 when it made a public offering and became a public company known as Livent.
Drabinsky and Gottlieb were large shareholders in Livent and fully controlled its operations. The business was a notable success. In 1998 there was a significant change in the management of Livent when new investors came in to run the financial side of the business.
The new accountants began to ask some questions. It turned out that the books of Livent had been fraudulently altered and did not reflect the true financial state of the company. Drabinsky and Gottlieb were immediately locked out of the company and the new investors began to pursue them in relation to the fraud.
Livent declared bankruptcy five months later.
Drabinsky and Gottlieb were ultimately charged and convicted. Drabinsky was sentenced to seven years jail and Gottlieb to six years [para 154]. They appealed.
After dismissing the conviction appeal the court turned to consider the sentence appeal. In doing so the court considered, inter alia, the argument advanced that the judge erred in principle by focusing on general deterrence; the appellants argued that there was "little concrete evidence to support the contention that longer sentences provide more effective general deterrence than shorter jail terms" [para 158]. In response thereto the court held:
[T]his court and all other provincial appellate courts have repeatedly held that denunciation and general deterrence must dominate sentencing for large scale commercial frauds. Denunciation and general deterrence most often find expression in the length of the jail term imposed [para 160]; [emphasis added].
The court then considered the range of available sentences and offered the following comments in relation to the suitability of the sentence:
First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range.
Nonetheless, the Court of Appeal held that the failure of Livent could not be attributed solely to the appellants. The causes of the failure were "numerous and complex"; the losses caused by the bankruptcy cannot be laid "entirely at the feet of Drabinsky and Gottlieb" [para 182]. In the absence of proof of the actual financial loss a sentence lower than that imposed was appropriate.Second, individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender’s prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one’s involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range [paras 166-167].
Based on this finding - one which was not made by the trial judge - the Court intervened and reduced the sentences to five years for Drabinsky and four years for Gottlieb.
DG Mack