R v Peers, 2017 ABQB 770

Court of Queen’s Bench of Alberta Citation: R v Peers, 2017 ABQB 770 Date: 20171212 Docket: 120790480S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Jeremy James Peers Appellant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________

Appeal from the Sentence by The Honourable Judge Day Dated the 15 th day of June, 2017 ( Docket: 120790480P1) [ 1 ] The Appellant seeks to reduce the global period of incarceration from 3.5 years as imposed by the sentencing judge to a total of 2.5 years. [ 2 ] For reasons which follow, the appeal must be dismissed. I. Introduction Background [ 3 ] On February 8, 2016 the Appellant pleaded guilty to 11 counts of breaches to the Alberta Securities Act , RSA 2000, c S-4 .

The circumstances were set out in a 46-paragraph Agreed Facts signed by the Appellant as well as his co-accused son, Robert David Peers, who was sentenced separately by Judge Day and is not a participant on this appeal. [ 4 ] All of the offences related to the Appellant’s actions as an unauthorized financial advisor to various complainants.

The Appellant took no issue with the following description of the offences by the sentencing judge: His victimization of these investors included, firstly, acting as a dealer of securities without registration under the Act; secondly acting as an advisor in securities, without registration under the Act; thirdly, distributing securities without a prospectus filed with the Alberta Securities Commission; fourthly making statements he knew or reasonably ought to have known were misleading or untrue for which he did not include facts necessary to make the statements not misleading; and fifthly participating in

an act or course of conduct that perpetuated a fraud on investors. The investing public and the integrity of the marketplace are protected by compliance with the Act. (Transcript p. 142-143) [ 5 ] In sentencing submissions, the Appellant sought a Conditional Sentence Order in the range of 18 months, while the Crown recommended a period of incarceration in the range of 2 to 2-1/2 years, plus significant ancillary orders under the Act . [ 6 ] Proceedings were conducted on April 5, 2016, February 24, 2017 and May 15, 2017 before a decision was rendered on June 15, 2017. II.

Sentencing Decision [ 7 ] The Court sentenced the Appellant to a total period of incarceration of 3-1/2 years and made the ancillary orders requested by the Crown. The Appellant continues to take no issue with the appropriateness of the ancillary orders that were given. [ 8 ] More specifically, the sentencing judge made the following disposition: (

a) Two counts of fraud (s 93(

b) of the Act ) – two years on each count to be served concurrently; (

b) Three counts of non-registration and prospectus violations (s 75 and 110) – six months on each count to be served concurrently; (

c) Six counts of misrepresentation (s 94(4.1)) – one year on each count to be served concurrently. [ 9 ] The sentencing judge directed that each of the three groups of concurrent sentences would be served consecutively and accepted the recommendations of the Crown; except that he concluded that the fraud violations merited a 2-year sentence for which he did not provide advance notice of his concerns to counsel.

The oral decision did canvass at length the purpose of the legislation, the objectives of sentencing with particular regard to prior decisions, as well as the personal circumstances including aggravating and mitigating factors of the Appellant. He specifically referenced that the lack of a criminal record and absence of prior violations of the Act were neutral factors. III. Issues [ 10 ] The Appellant has raised two grounds for appeal which need to be addressed: 1. Did the sentencing judge err in principle by refusing to treat the absence of a criminal record as mitigating? 2.

Did the sentencing judge err by failing to alert counsel that his decision may exceed Crown recommendations to an extent which may merit appellate review?

IV. Standard of Review [11] The Court confirms that both parties were in agreement that the standard of review on sentencing decisions is one ofdeference. Judges at first instance have a broad discretion to impose the sentence they consider appropriate within the limits establishedby the law: R v Lacasse, 2015 SCC 64 at para 39. On appeal, the Court may vary a sentence imposed where it is demonstrably unfit,where the sentencing judge erred in principle, failed to consider a relevant factor or over-emphasized appropriate factors: R v M(CA), (SCC), [1996] 1 SCR 500. See also: R v RGB, 2017 ABCA 359 at para 7. V.

Argument [12] Turning first to the absence of a criminal record, the Appellant notes cases where the Crown has conceded that the lack of acriminal record will generally be considered a mitigating factor: R v Hammadieh, 2008 ABCA 169 at para 11; R v Stewart, 1993 ABCA252 at para 25; R v Collins, 1995 ABCA 392 at para 9. The Crown responds that the lack of a criminal record is typically but not alwaystreated as a mitigating factor.

In the case of what are called “white collar” offences the absence of a criminal record is typically lesssignificant: R v Wilder, 2004 BCSC 644 at para 72; R v Keresztes, 2015 ABCA 48 at para 9. Choosing to treat the absence of a criminalrecord as a neutral factor on the sentencing of this Appellant does not amount to an error of law. [13] On the second ground, the Crown openly concedes that the failure of the sentencing judge to notify counsel of the potentialfor a decision in excess of the Crown’s recommendation typically merits some appellate review.

As stated in R v Keough, 2012 ABCA14: Sentencing takes place in an adversarial context. It is anticipated that in most cases the sentence imposed will fall at the boundaries, orwithin the range of sentences recommended by counsel. While there is no legal requirement that the sentencing judge stay within thatrange, or adopt the recommended structure of the sentences, it is of concern when that is not done ... The accused is entitled toreasonable notice of the jeopardy he faces, and a fair opportunity to make submissions.

The Crown is also entitled to a reasonableopportunity to explain its position ... (para 19) [14] But the Court in Keough went on to state: Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failingto give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrablyunfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted.

Failing to seek the inputof counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on anirrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error. (para 20) [15] The Appellant argues that, if the sentencing judge had provided notice of his concern, the defence could easily haveabandoned its position on a conditional sentence order and effectively argued that the recommendation of the Crown for 2 to 2-1/2 years’incarceration be treated by the Court as a joint submission. [16] The Crown effectively responds that the Agreed Facts remain the same, there was no joint submission and the sentenceimposed was within the reasonable range, having regard to the case law and sentencing principles.

Since the sentence was notdemonstrably unfit, variation on appeal is not appropriate. VI. Analysis [17] The lack of a criminal record or prior violations are always relevant considerations in the assessment of an individual case.Whether and to what extent a particular factor is seen to be mitigating or aggravating will depend on the specific circumstances. [18] Typically, the absence of prior convictions leaves open the prospect of rehabilitation and may be considered a mitigatingfactor.

The failure of the sentencing judge to deal with the point in that fashion on the circumstances here does not amount to areviewable error.

The sentencing judge made his position clear very early on in the proceedings in dealing with the sentencing of RobertPeers. (Transcript p. 29) It is within his discretion as one of a number of factors to be considered. [19] In all events, the treatment of no criminal record as neutral does not amount to an error in principle which had any impact onthe sentence actually selected to deal with the two counts of fraud. [20] As the sentencing judge makes clear (Transcript p. 150), it was his view that the one-year jail recommendation by the Crowndoes not significantly address the issue of deterrence and denunciation. (Despite his repetition of the term “denunciation” twice in thelast sentence, line 39, it is clear that the first reference was meant to be “deterrence”, both general and specific.) However, that concernwas not communicated to counsel during the course of argument. [21] If this was a matter of a joint submission, then the decision of R v Anthony-Cook, 2016 SCC 43 would have clear application.As counsel both acknowledged during argument, no arrangements were made for a joint submission which, of course, left the Appellantfree to urge the Court to examine the viability of a conditional sentence order.

The argument in this Court that, if the Appellant hadknown of the sentencing judge’s concern then a joint submission would have been arranged is, of course, highly speculative. Thedifference between those two positions is quite significant. [22] The sentencing judge did convey concerns on the joint submission for Robert Peers. He was alert to the usefulness offeedback and was eventually satisfied by the representations from counsel. On this file, the representations were significantly disparate,

including an application for recusal that had to be addressed by the sentencing judge before he issued a decision on an appropriate penalty. [ 23 ] I interpret my responsibility on appeal to scrutinize whether there has been such a reviewable error. Counsel for the Appellant could only point to the treatment of the lack of a criminal record and I have already disposed of that as something that does not warrant appellate intervention. I find the comments of the Court in Keough at para 20 quoted above to fairly apply in these circumstances. The failure to notify does not itself constitute a reversible error.

I must determine if the sentence imposed was demonstrably unfit. [ 24 ] The case law in this area sets the range between 2 and 3 years on somewhat analogous cases where an element of fraud is involved.

This list includes: R v Chan , 2012 ABPC 272 ; R v Sellars , [2010] AJ No 1545 ; R v McPherson , August 15, 2014, Calgary 120103288P1, unreported; R v Boyle , 2002 ABPC 136 ; R v Lall , May 27, 2014, Calgary 111415113P1, unreported and R v McDonald , May 29, 2015, Calgary 121255186P1/121277446P1, unreported. [ 25 ] Factors which distinguish this case as meriting a global sentence at the high end of the range include: 1. The long-standing relationships with a number of victims, some of whom were especially vulnerable; 2.

The breach of trust as contemplated as an important factor under s 718.2(a)(3) of the Criminal Code ; 3. The scope of investor losses greatly exceeds the amounts addressed in the case citations which have been summarized: $6.76 million, of which $2.21 million was taken from investors during the 16-month period covered by the fraud counts. [ 26 ] The sentencing judge heard representations that there was an absence of personal gain as ought to be inferred from the records of Canada Revenue Agency during the period 2005 – 2015.

The sentencing judge concluded that the Appellant or his family members to some extent used improperly obtained funds for personal use or gain: “It is the magnitude of that use for personal gain which is unknown. I note as well that there is no restitution to date”. (Transcript p. 146) [ 27 ] The sentencing judge had the benefit of lengthy written and oral submissions.

In all events, it is the responsibility of the judge, not counsel to impose a fair sentence: R v Anderson , 2014 SCC 41 at para 25 . [ 28 ] Although it would clearly have been preferable for the sentencing judge to alert counsel to his concerns, I am on a careful review of the law and the reasoning of the decision as to the assessment of factors and purpose in the sentencing, satisfied that the sentence ought not to be varied. It was neither unreasonable nor demonstrably unfit in all of the circumstances. [ 29 ] Accordingly the appeal is dismissed. Heard on the 5 th day of December, 2017.

Dated at the City of Edmonton, Alberta this 12 th day of December, 2017. S.D. Hillier J.C.Q.B.A. Appearances: R.J.C. Stack for the Respondent A.S. Millman for the Appellant