New & Notable: Deterring Commercial Fraud

Garth Drabinsky and Myron Gottlieb are headed to jail; the Ontario Court of Appeal today dismissed their conviction appeals: R v Drabinsky, 2011 ONCA 582.  They wont be spending as much time there as was originally thought however. 

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.

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]. 
 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.  
 

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

New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 
Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.
Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:
The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.
The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].
 
DG Mack

New & Notable: Judges are Presumed to Know the Law Even if they Don't Tell us

In the recent case of R v Chevers, 2011 ONCA 570 the Ontario Court of Appeal, for the second time this year, has unequivocally rejected the notion that trial judge's must articulate the law upon which they rely in rendering their judgements.  
Christopher Chevers was convicted by Scott J, sitting without a jury, of attempted murder and two other firearm offences.  The central issue at trial was identity and that issue relied almost entirely on the victim; the victim's credibility was hotly contested by the defence who pointed out many of lies told by the victim under oath.  
Chevers was convicted and appealed.
On appeal Chevers argued that the "trial judge was mandated to give himself a Vetrovec warning of the danger of acting on the victim's evidence without other evidence of confirmation" [para 2].  In rejecting this argument a unanimous Court of Appeal explained that a Vetrovec warning "is intended to alert juries to the dangers of relying on the evidence of certain witnesses" [para 4]; [emphasis added].  The court continued:
Judges know the risks in relying on the testimony of witnesses like this victim; thus there is no requirement that a judge sitting alone recite a Vetrovec caution in his or her reasons for judgment [para 4]; [references omitted]. 
Earlier this year in R v Snyder, 2011 ONCA 445 the Court of Appeal rejected the same argument holding that to require that "judges articulate those dangers in their reasons...would be pure formalism" [para 24].

 
DG Mack

New & Notable: Fighting an Intractable Problem?

Impaired driving has proven to be an intractable problem.  Society's abhorrence of it is palpable.  According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related.  It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [para 15]; [emphasis added].
In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen). 
Tobin had been out drinking with friends including the victim, Alex Zolpis.  Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa.  The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4].  He did drive however.  He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it.  Tobin then began doing donuts.  Somehow his friend Zolpis fell out.  He was caught under the truck and was killed.
Tobin pleaded guilty. 
Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:
Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed. 
Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others.  Some are disappointed at the sentence imposed and feel it will not serve as a lesson.  Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost".  (See similar discontent expressed in comments on the CBC).
The discontent with the sentence is understandable perhaps.  A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.
In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549.  In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving. 
More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121. 
While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.  
Kumm  er is another example of this trend.  In that case the Court of Appeal upheld a sentence of eight years.  Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:
The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked through the airport terminal, and took a cab home. The incident caused $127, 000 in damage to the vehicle and the airport.
The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [paras 25-26]; [emphasis added].
The similarities with the Tobin case are notable.  Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18].  Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17].  Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17].  Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving".  Tobin too should have been acutely aware of the dangers of drinking and driving.
Despite these similarities and background the judge imposed a sentence of three years.  In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].
If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.
 
 
DG Mack

New & Notable: A Court Order is not a Suggestion

Justice Hill is not afraid to write lengthy, thorough and verbose judgements.  His judgements are often relied upon as a comprehensive overview of the law on a given point.  In a recent ruling his succinct and pointed ruling delivers an equally clear message - a court order is not a suggestion: R v Knockwood, 2011 ONSC 5004. 
Kathleen Knockwood was convicted of importing heroine into Canada.  Knockwood is an aboriginal Canadian.  After conviction Hill J ordered a pre-sentence report pursuant to section 721 of the Criminal Code; pursuant to section 721(4) the court further ordered that the report be in a Gladue report format - to address the aboriginal status and issues related thereto.  Subsequently correspondence was received that the home province of Knockwood (Quebec) do not prepare Gladue reports.  It was thereafter agreed that a pre-sentence report with "Gladue content" would be accepted. 

Hill J ordered that it be prepared and delivered to the court on or before November 1, 2011.

On August 17, 2011 the Court received a letter dated August 12, 2011 from Quebec probation services which indicated that “due to workload constraints” and the limited number of officers “that would be able to conduct the interview in English” an extension of time for the preparation of the report was required; the requested due date was December 12, 2011 [para 4].

In considering this request for an extension Hill J made reference to section 720 of the Criminal Code which provides that a “court shall, as soon as practicable after an offender has been found guilty, conduct proceeding to determine the appropriate sentence” [para 5].  Hill J concluded with the following:
A time period approaching three months from the date of conviction for the completion of a PSR is well beyond the usual 6 to 8-week range frequently accommodated in the busy courts in Brampton. The court's direction of August 10 was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service. If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order.

It is hereby confirmed that it is ordered that the PSR is to be completed and filed with the court on or before November 1, 2011 [paras 6-7]; [emphasis in original].
 
DG Mack

Comment: The "Paperback Novelist" Strikes Again

Justice Watt appears undeterred. Professor David Tanovich is likely unhappy. In his opinion, Justice Watt is "out of control". In the opinion of others, Justice Watt's refreshing style is welcome. I tend to agree. His writing style is engaging, to the point and effective.
In a recent article Kirk Makin commented on the writing style of Justice Watt and stirred up this controversy: The judge who writes like a paperback novelist. In a recent judgement, R v Roks, 2011 ONCA 526, released after that article, Justice Watt offered a quotable quote similar to that offered in R v Simon, 2010 ONCA 754 - a decision which was noted in Makin's article.


R v Simon, 2010 ONCA 754
Jason Porter was a drug dealer. He was shot and killed in his home. Everton Cribb and Allister Simon, the appellant, were present when he was shot and killed. Cribb had wanted to buy some drugs and contacted an acquaintance he met in jail to help him set up the deal. A deal was struck between Crib and Porter to buy some drugs.
Cribb and his friend, the appellant, drove together with others to Porter’s place in Hamilton. Cribb was armed with a .45 calibre grey-coloured handgun. The appellant was armed with a 380 mm silver plated handgun.
At Porter’s residence Cribb and the appellant had entered to finalize the deal. During the deal a scuffle began between Porter and Cribb. Some witnesses would later testify that during the scuffle the appellant had a gun trained on the two men. Evidence about who fired the fatal shot that entered Porter’s chest varied.
At trial the appellant was convicted of second-degree murder. He appealed. On appeal the appellant argued, inter alia, that the trial judge erred in permitting the jury to consider the appellant’s liability under section 21(2).
In dismissing this ground, and all grounds of appeal, Watt JA held that it matters not whether the appellant was the shooter and that the instruction on and liability under section 21(2) was appropriate. In so holding Watt JA offered the following quotable quote:
Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here [para 1].
R v Roks, 2011 ONCA 526
Adrian Roks operated a tanning salon, Even Tan. Roks met and became fast friends with Sam Paskalis. Paskalis would later testify that he and the appellant, along with John Magno concocted a plan to burn down Magno’s business and make a fraudulent insurance claim. Paskalis’ role included ensuring the inventory was moved out before the fire and setting the fire. Tony Jarcevic was ultimately recruited to set the fire. Jarcevic had training in fire suppression.
Things did not go as planned. There was an explosion. Jarcevic died in the explosion.
Roks was ultimately charged with second-degree murder in relation to his death. Roks was convicted after trial and appealed.
On appeal Watt JA, for the court, held that the trial judge’s finding that “the appellant committed murder was unreasonable” [para 138]. In place of that conviction Watt JA entered a conviction for manslaughter.
In doing so Watt JA noted that the “unlawful object” was the insurance fraud [para 139]. The “dangerous act” was the arson [para 140]. However, Watt JA held that the “deficit in the prosecutor’s proof of murder…resides in the failure of the evidence as a whole to ground the conclusion that the appellant knew that the death of a human being would likely occur from setting the fire at Woodbine” [para 141]. While recognizing that this could be proven by circumstantial evidence, the inferences therefrom must be “the only rational inference available” [para 142].
In coming to this conclusion, Watt JA offered the following quotable quote:
Things don’t always work out according to plan. Failures occur at different times and for different reasons. Sometimes, the flaw is in the plan. At other times, the execution is faulty [para 1].
Whether you like his writing or not, few could disagree that these quotable quotes make a point. Anyone who reads them will understand that point. Its effective. It makes the criminal justice system, the law, accessible to anyone who cares to read it. I applaud it.
DG Mack

New & Notable: Dangerous Indeed

Johnson Aziga was charged with two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault. These charges arose out of the offender’s decision to engage in unprotected penetrative sex with 11 separate victims while he was HIV positive. Two of his victims died from malignancies associated with HIV and another five of the victims were infected with the virus [para 4].

The offender was convicted of these offences after trial and sentenced to the mandatory life sentence with a minimum of 25 years before being eligible for parole. The Crown further sought a dangerous offender designation.

Lofchik J considered and ruled upon this application: R v Aziga, 2011 ONSC 4592. Two points were raised for consideration on the application.

First, the offender argued that there was no evidence that he has demonstrated an inability to control his sexual impulses. In rejecting this argument Lofchik J held that:
There is no question on this application that the predicate aggravated sexual assaults and attempted aggravated sexual assault of which the offender has been convicted constitute "serious personal injury offences". I am also satisfied that the convictions for aggravated sexual and attempted aggravated sexual assault were the result of a pattern of repetitive behaviour by the offender showing a failure to restrain his behaviour.

I disagree with the argument of the defence that there is no evidence that the offender by his conduct has shown a failure to control his sexual impulses. The aggravated sexual assault and attempted aggravated sexual assault convictions against the accused are the result of his fraud (i.e. failure to inform his sexual partners of his positive HIV status) enticing the complainants to engage in sexual relations with him in order that might obtain sexual gratification. This in my view is no different than if he had used force to obtain sexual gratification from the complainants [paras 117-118]; [emphasis added].

Second, the offender also argued that since he would not be in the community for at least 25 years the dangerous offender should not be made; it was not necessary as, upon release, he would be an elderly man with a reduced libido and therefore pose a minimal risk. In assessing and ultimately rejecting this argument Lofchik J offered guidance on the timing of the risk assessment to be made on a dangerous offender application.
The elephant in the room of course is that the offender has appealed his first degree murder conviction and the possibility exists that the life sentence may not stand. If he were sentenced to a determinate sentence for the sexual assault convictions, given that he has been incarcerated since 2003 he would be eligible for parole almost immediately. I therefore intend to approach the dangerous offender application on the basis of the sexual assault convictions without regard to the consequences of the murder convictions.
In any event, I am of the view that in an application such as this a judge must consider whether there is a present risk of the offender reoffending. Section 753 does not contemplate a judge considering whether there is a risk of the offender reoffending at some hypothetical time in the future after the offender is released on parole. Such a task would be impossible. I base this conclusion on the analysis of Section 753(b) of the Criminal Code in relation to dangerous offender applications by the Supreme Court of Canada and in R. v. Currie, [1997] 2 S.C.R. 260. Lamer C.J. noted, at para. 22, that, "As long as the offender's past conduct, whatever conduct that might be, demonstrates a present likelihood of inflicting future harm upon others, the designation is justified." [Emphasis added]; [para 122].
 
DG Mack