) Mr. P. Edgett ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. S. Newman - v. -, 2018 MBPC 28

R. v. BRADLEY , 2018 MBPC 28 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. P. Edgett ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. S. Newman - and - ) for the Accused ) DAVID MICHAEL BRADLEY, ) ) Sentence delivered Accused. ) April 23, 2018 _____ PRESTON, P.J. (Orally) I am sentencing David Bradley, a former lawyer who was disbarred in 2016, for the crime as it then was, of uttering a forged document in 2010. The Crown proceeded summarily. Mr. Bradley was called to the Manitoba Bar in 1991 and by 2010 Mr. Bradley had a very busy practice. In 2006, the victim, Mr. Thawani, had instructed his lawyer, Mr.

Bradley, to file a Statement of Claim for money owed on a property. The Statement of Claim was filed. A Statement of Defence was filed in answer to the claim. Mr. Bradley did not set the matter down. As years went by, Mr. Bradley started to claim that the defendant was dragging his feet. By 2010, which is four years after the claim was initiated, Mr. Thawani was frustrated. He wanted the matter to move forward. He instructed Mr. Bradley to file a motion to strike out the Statement of Defence. It was then that Mr. Bradley forged court documents, purposefully drafted entirely to deceive and appease.

Late in 2010, Mr. Bradley sent his client a forged court order outlining, firstly, that a Queen's Bench Justice had ordered that the Statement of Defence was not struck out, and secondly, that examinations for discovery must be scheduled. Neither fact was true. After receipt of the forged order, Mr. Thawani was not happy. He instructed Mr. Bradley to appeal the decision. Mr. Bradley forged a Notice of Appeal and sent a copy to Mr. Thawani as a "Draft Appeal" advising Mr. Thawani that the details of the grounds of appeal were fleshed out in a "Brief" that "is filed". On November 30th of 2010, Mr.

Bradley e-mailed his client another forgery purporting to be a revised but fictitious version of a Factum for the non-existent Court of Appeal proceedings. It consisted of six typewritten pages, carefully crafted to resemble a valid Brief, presented for the client's perusal, to be filed on behalf of the client, in support of the Notice of Appeal. A very tangled web. The lies and forgeries were only uncovered and discovered by Mr. Thawani when he visited the Court of Appeal to inquire as to the status of his appeal in this matter. Of course, there was no such appeal. He confronted Mr.

Bradley, and at that point Mr. Bradley came clean. However, Mr. Thawani still allowed Mr. Bradley to work on the file. So in 2012 a valid Motion to Strike was actually dismissed and actual examinations for discovery were set for October of that year. But by October of that year, Mr. Thawani had decided to represent himself in the matter and filed a Motion for that purpose. In March of 2013, the claim was adjourned sine die , in other words, adjourned without a date. Ironically enough, the file remains with Mr. Bradley's former law firm.

It is not until July 18th, 2016 that, due to being told by the Law Society of Manitoba that his complaint was improperly filed, Mr. Thawani reported the forgery to the police. So those are the relevant circumstances around the forgery. An examination of Mr. Bradley's law practice is also relevant to the sentencing. I received materials from both Crown and Defence outlining the history behind Mr. Bradley's prior dealings with the Law Society of Manitoba. As I have said, Mr. Bradley was called to the Bar as a Barrister and Solicitor in 1991.

In 2008, the Law Society of Manitoba formally cautioned Mr. Bradley for missing a limitation date on a civil claim and subsequently failing to advise a client of his error. In 2013, another complaint was made by a client to the Law Society of Manitoba because Mr. Bradley had consented to an Order dismissing an insurance claim without informing his client and then lied to his client as to the status of the proceedings, assuring the client that the claim was still being pursued. So Mr. Bradley was referred to a psychologist, Dr. Slusky, for an assessment, and in his 2013 report, Dr. Slusky noted Mr.

Bradley's ability to "compartmentalize" and his reluctance to fully acknowledge his distress and difficulty with victim empathy, and Dr. Slusky recommended further therapy. Mr. Bradley then is referred to Dr. Chubaty. Her report from October 2014 notes initial tendencies towards defensiveness, denials and rationalizations which, in her opinion, contributed to Mr. Bradley's ongoing poor decision-making.

Over the course of months of therapy, she concluded that he was learning to balance his work and non-work life but she observed that he had trouble initially accepting the fact that it was actually he lying to clients, putting it in the active rather than the passive voice, as he tended to. The Law society of Manitoba suspended Mr. Bradley from the practice of law in January of 2015 because of this second complaint. That was for a period of a year, commencing in March of 2015, with an order for psychiatric counselling. Dr.

Chubaty sent an update to the Law Society of Manitoba in June of 2015 which outlined a healthier perspective and better insight into workload and clearer communication. However, during this same period, a file review of his then law practice uncovered 10 more clients who had been ill-served by Mr. Bradley.

Thus in February of 2016, he was found guilty of 22 charges of professional misconduct, including misleading clients, conflict of interest, failure to inform clients of errors or omissions, failure to notify a client of the receipt of trust funds, charging a fee that was not fair, reasonable and fully disclosed, and acting without instructions. He was disbarred. The Law Society of Manitoba Disciplinary Panel at that time noted that Mr.

Bradley had repeatedly lied to his clients, failed to serve his clients, lied to other lawyers, misappropriated client funds to cover his lies, and they also noted that he lied, by his silence, to a prior disciplinary panel. I want to make it clear that I am not sentencing Mr. Bradley for this behaviour; however, it is relevant as contextual backdrop to the uttering of the forged documents I am sentencing him for. The victim, Mr. Thawani, told me he feels betrayed. He is frustrated with the system. Mr. Bradley was arrested in August of 2017. The charge was laid in September of 2017.

The guilty plea was entered in January of 2018, a very early guilty plea. The Crown asks the Court to jail Mr. Bradley for 90 days and emphasizes aggravating features: the planning, the effort necessary to draft the documents, the lies about the claim, the obvious breach of trust, the misuse of his legal expertise and the Crown also notes mitigating feature: his remorse, his saving the process a trial and his lack of criminal record. Mr. Newman, on his behalf, asks for a fine and probation or, in the alternative, a Conditional Sentence Order. Mr.

Newman filed a number of legal precedents involving forgeries by other professionals submitting that lawyers, in a sense, are no more important than, say, accountants or real estate professionals, those who have received suspended sentences for similar deeds, and he also correctly pointed out that this behaviour occurred almost eight years ago. David Bradley himself spoke on his own behalf, offering no excuses and articulating his apologies and remorse. He expressed deep appreciation for his wife and friends' support. He feels he is not a danger and will not do this again.

He has had two years of counselling from 2014 to 2016. He wanted me to know that in his current work position, he does not handle money and he has been gainfully employed, ironically enough, by the victim's brother for the past three years. Dr. Kent Somers, psychologist, prepared a Risk Assessment very recently, dated April 9th of 2018, based on two recent meetings in March of 2018. Dr. Somers gives some relevant background information and confirms what the other counsellors had gleaned. I do not intend to dwell on it, but Mr.

Bradley's upbringing was, and I certainly take this into account, very unconventional, somewhat chaotic and resulted in him being somewhat depressive and having an anxious outlook and certainly a very unhealthy self-reliance. In Dr. Somers' very recent opinion, he observes that Mr. Bradley has good physical health. Substance abuse is not an issue. He has above-average abilities. He still has a tendency to downplay his problems. He has no current desire for treatment, feeling that he can manage on his own with his own supports, although he is prone to depression and self-doubt. There are no clinical syndromes.

The conclusion that Dr. Somers reaches is that this behaviour was situationally related to his negative emotional state and his work setting. He is assessed as a very low risk to re-offend. He is now 54. His letters of reference confirm he has supports in the community and echo the thought that he was working in a pressure cooker. The Crown filed a case very similar to this case, Zinkhofer , 2000 AJ No. 109 . A lawyer, Mr. Zinkhofer, forged and uttered three sets of documents after lying about work not done on two files, presenting documents to the clients as here.

Also as here, the forged documents required effort, planning and preparation. They could and did fool an unsuspecting client. The Court in that case held that there was a significant delay which militated against a lengthier jail sentence. The Court noted that financial benefit accrued to Mr. Zinkhofer, as it did to Mr. Bradley, in that the pattern of non-disclosure of failures to serve various

clients allowed him to continue to run a busy practice and maintain his status as a Barrister and Solicitor. Unlike Mr. Zinkhofer, Mr. Bradley never did self-report as any lawyer must, to the Law Society of Manitoba. He kept all of this fromhis client, his law firm and the Law Society. Mr. Newman filed a precedent book, including the Manko decision from our Manitoba Queen's Bench, (1992), (MB KB), 80 M.R.(2d) 158. Mr. Manko received a suspended sentence and probation. This case is clearlydistinguishable. The forgery was known by the client to be false.

It was drafted in an effort to prevent the client from self-harm. I do accept the following in mitigation: Mr. Bradley's early guilty plea; Mr. Bradley not contesting the matter; Mr. Bradley's genuine remorse; Mr. Bradley's lack of priorcriminal history, although I have explained how his character as a lawyer is relevant to these proceedings; the lengthy delay in thecommencement of these proceedings and the reason why they got before the Court; lastly, the disbarment and public embarrassment Mr.Bradley has clearly already experienced. These factors reduce what would otherwise be a more significant penalty.

The aggravating circumstances are numerous. The forgery was planned and purposeful. The execution of forged court documentstook a great deal of effort. The lies and deception were ongoing. Mr. Bradley did not disclose his deceptions until confronted with thetruth that his client had uncovered. Mr. Bradley misused his legal expertise and this constituted a huge breach of trust. The concept of retribution as a principle of sentencing pertains here. The moral blameworthiness of Mr. Bradley must be weighed.

Lawyers, by nature of their oath and daily conduct, owe the highest duty of care and integrity to theirclients and the Courts. The forgery of court documents is extremely rare, fortunately, but extremely serious. It undermines theadministration of justice. With legal training comes great responsibility. The exploitation of specialized legal knowledge to deceive aclient, no matter how difficult or demanding that client may be perceived to be, is never permissible. Mr. Bradley's actions were unconscionable.

The foundation of the relationship between lawyer and client always rests on the lawyer, and that trust can never be perverted. Abreach of trust by a person with as much specialized knowledge and education as a lawyer must be dealt with in the most significantmanner. In other words, Mr. Bradley's moral blameworthiness is high. Mr. Bradley told me that he has "felt the slings and arrows" of the negative stereotype of the lawyer. He feels ashamed. He has beenspecifically deterred. However, deterrence and denunciation are fundamental principles of sentencing that apply here.

This type ofbehaviour, forgery by a lawyer, will never be tolerated. The sentence must send the strongest, clearest message in hopes of curbing thisconduct. The case law establishes that sentences for lawyers who forge documents result in jail sentences ranging from nine to fifteen months. Mr. Zinkhofer received three months in jail, in part because of the delay in laying the charges. There are parallels between Mr. Zinkhofer and Mr. Bradley. The complaint to the police was a full five and a half years after the forgeries occurred. The investigation, though necessary, took overa year. Mr.

Bradley resolved the matter as quickly as he could. Weighing all the circumstances I have outlined, a jail sentence of 90 days is appropriate. Mr. Bradley is well aware how to accesscounselling services should he wish to. I am not placing him on probation. I have been asked to consider a Conditional Sentence Order. I have done so. Obviously, Mr. Bradley is not a danger to thecommunity. However, a conditional sentence in these circumstances is not consistent with the fundamental principles of generaldeterrence and denunciation. Mr.

Newman, have you spoken to your client about the possibility of receiving this jail sentence and how he wishes to serve it? MR. NEWMAN: Yes. Let me just confirm with him. One moment, please, Your Honour. Yes, if the Court would consider the sentence being served on an intermittent basis, we would appreciate that. THE COURT: Absolutely. I have no doubt that it is very important for Mr. Bradley to keep his employment and hopefully he canmanage that while he is sentenced. When will you want the sentence to begin, this Friday? MR. NEWMAN: Yes, I would imagine so. THE COURT: Friday, Saturday, Sunday? MR.

NEWMAN: Friday to Sunday. THE COURT: It will be by way of a Probation Order until the sentence is completed. So the times and places where you report, sir, will be noted on the document that you will be signing, the Probation Order. There are costs and surcharge. It is $102, as I understand it. Is 90 days sufficient to pay that? MR. NEWMAN: It is, thank you. THE COURT: All right. Thank you. I want to thank counsel for their presentation of the very difficult case, and I want to thank you,

Mr. Bradley, for your words and I wish you luck in the future, sir. All right. _____