R v Verhoek, 2023 ABCJ 169

In the Alberta Court of Justice Citation: R v Verhoek, 2023 ABCJ 169 Date: 20230724 Docket: 221183718P1 Registry: Red Deer Between: His Majesty the King Crown - and - Matthew Verhoek Accused Reasons for Sentence of the Honourable Justice G.A.G. Yake INTRODUCTION [ 1 ] Except where otherwise indicated, all

section numbers referred to in these Reasons are found in the Criminal Code of Canada . [ 2 ] Matthew Verhoek has entered a guilty plea to one count of Obstructing Justice contrary to section 139(2). [ 3 ] The Crown proceeded summarily and therefore Mr. Verhoek is liable to a fine of not more than $5,000.00 or to a term of imprisonment of not more than two years less a day, or to both:

section 787. [ 4 ] The Court must determine what is the fit and appropriate sentence. POSITION OF THE CROWN

[5] Crown Counsel is seeking a sentence of at least 15 months imprisonment. [6] The Crown cites R v Thomas, 2010 ABPC 90. [7] Counsel for Mr. Verhoek says that an appropriate sentence is 6 to 8 months imprisonment, followed by probation. Thelength of the suggested probationary term has not been suggested, nor have any conditions for the suggested Probation Order. [8] In addition to R v Thomas, counsel for Mr.

Verhoek cites: R v Pham, 2013 SCC 15 , [2013] 1 SCR 739 R v Craig, 2009 23 , 2009 SCC 23 , [2009] 1 SCR 762 R v Konkolus (1998), 1998 ABCA 127 R v Ward, 2011 ABCA 30 R v Sandercock, 1985 ABCA R v Crazyboy, 2012 ABCA 228 R v Angelis, 2016 ONCA 675 R v Tewolde, 2019 ABPC 82 R v Van Deft, 2007 ABPC 31 R v Magill [2014] YJ No. 19 R v Papequash [1981] SJ No. 1098; and R v Shae [1999] NWTJ No. 26 [9] The Court has also considered: R v Ipeelee, 2012 SCC 13 R v Hamlyn 2016 ABCA 127 R v Emmelkamp, 2013 ABCA 71 R v Arcand, 2010 ABCA 363 R v Holloway, 2014 ABCA 87; and R v Moller, 2012 ABCA 381.

FACTS [10] The charge against Mr. Verhoek arises from the prosecution of Information number 220449409P101 (the “OriginalInformation”) that alleged that on May 11, 2022 he committed a number of offences including, but not limited to, criminal flight frompolice contrary to

section 320.17. Mr. Verhoek was remanded in custody on the Original Information pending bail hearing and trial. [11] While he was in custody at the Red Deer Remand Centre he contacted a female associate (the “Female Accomplice”) bytelephone on September 6, September 7 and September 21, 2022 and persuaded her to provide him with a false alibi, intended to be usedat the bail hearing, the trial or the resolution of the charges described in the Original Information.

He told her that if she did that, theywould split a “big payout” that he would receive when the charges against him were dropped. [12] On September 26, 2022 the Female Accomplice provided a statement to the RCMP describing that false alibi. On thefollowing day Mr. Verhoek spoke by telephone with the Female Accomplice about the false alibi she had provided to the RCMP andsaid, inter alia: “It’s really going to help me out. It’s going to help me get these charges dropped against me. This charge will be dropped by the Judge atthat point.” [13] Mr.

Verhoek’ s lawyer provided Crown Counsel with alibi notice containing the false alibi. There is no evidence orinformation suggesting that Defence Counsel was aware the alibi was false. [14] All of Mr. Verhoek’s telephone conversations with the Female Accomplice were recorded at the Red Deer Remand Centre.They were discovered after the RCMP obtained a Production Order during the course of investigating his false alibi. [15] After it was discovered that his alibi was false Mr.

Verhoek entered a guilty plea to some of the charges on the OriginalInformation, including one count of criminal flight from police, one count of possession of stolen property of a value exceeding$5,000.00 and one count of unauthorized operation of a motor vehicle contrary to

section 94 of the Traffic Safety Act.

CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mr. Verhoek is 40 years old, married but separated from his wife, and has 3 children. [ 17 ] He has a grade 11 education. He says that he has recently been accepted for admission into CDI college, but Counsel for Mr. Verhoek has not been able to confirm that information. [ 18 ] Mr. Verhoek says that he once owned a business that provided oilfield installation services and that he once owned his own home. He attributes the loss of his home to his drug and substance abuse over the past 6 years. [ 19 ] Mr.

Verhoek says he has had recent employment, and currently has employment available to him. [ 20 ] Mr. Verhoek says that he currently has the support of his family, friends and employers. Mr. Verhoek’s father has provided a letter to the court confirming his support. [ 21 ] Mr. Verhoek has an extensive Criminal Record for a variety of offences. He has no prior conviction under section 139(2).

ANALYSIS PRINCIPLES OF SENTENCING [ 22 ] Fundamentally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (section 718.1) bearing in mind the sentencing objectives described in

section 718 and the principles of sentencing described in

section 718.2. [ 23 ] Proportionality underlies the fundamental purpose of sentencing, which is to maintain and promote a just, peaceful and safe society through the imposition of just sanctions: R v Ipeelee . [ 24 ] When determining the gravity of an offence the court must consider the harm or likely harm to victims and the harm or likely harm to society and its values.

When considering the degree of responsibility of the offender, often referred to as his moral culpability, consideration must be given to the offender’s mens rea level of intent, recklessness or wilful blindness in relation to the actus reus: R . v Arcand at paragraphs 57-58 . [ 25 ] In some cases moral culpability can be reduced by the offender’s personal circumstances (for example, reduced mental capacity and/or Gladue factors). This illustrates the principle that sentencing is an individualized process. [ 26 ]

Section 718.2(

b) requires consideration of the parity principle: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 27 ] In all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society: R v Hamlyn at paragraph 7 . [ 28 ] Counsel for Mr.

Verhoek has submitted a number of case reports in support of his recommended range of 6 to 8 months imprisonment, citing the parity principle. [ 29 ] I have read all of these case reports.

I am struck by the wide variety of the circumstances of the offences and the wide variety of the offender’s personal circumstances described in them. [ 30 ] While these cases are of assistance in establishing sentencing principles applicable in the present case, I am reminded that the Alberta Court of Appeal has cautioned that comparing facts and offenders to the facts and the offender in the present case may be fraught with difficulty, and in some instances may be of little benefit: R v Holloway ; R v Moller .

SENTENCING FOR SECTION 139(2) OFFENCES [ 31 ] Because of the justice-damaging character of this offence, the primary objectives of sentencing are denunciation, specific deterrence and general deterrence: R v Crazyboy , at paragraph 27 ; R v Emmelkamp , at paragraph 18 . [ 32 ] The Courts have long recognized that the offences created by section 139(2) are very serious because, as stated by Judge Fradsham in R. v.

Thomas at paragraph 33 , these offences are “...a direct attack on the ability of the justice system to fulfill its principle function, which, in relation to criminal law, is the impartial and independent adjudication of allegations brought against individuals by or on behalf of the state.

If witnesses are either deterred from testifying, or if their evidence is perverted, by threats, violence, or bribes, then the primary source of facts upon which the courts base their adjudications is irretrievably lost.” [ 33 ] As Judge Fradsham further noted at paragraph 36, if these offences become common place, our justice system will suffer a “mortal blow” and will not long endure. [ 34 ] As noted by the Alberta Court of Appeal in R v Emmelkamp at paragraph 19 , in cases of obstruction of justice the administration of justice is the victim.

MITIGATING FACTORS [ 35 ] The major mitigating factor is the guilty plea entered by Mr. Verhoek. That guilty plea indicates that he is remorseful and takes some responsibility for his actions. However, the mitigating effect of that guilty plea is reduced because it was entered on the date set for trial, after he attended about three hours late for that trial. [ 36 ] Some mitigation can be found in his past work history, his expressed desire to remain gainfully employed, his expressed desire to obtain further training or education through CDI college, and the support he says he has from his friends and family.

AGGRAVATING FACTORS [ 37 ] This is a serious offence. The harm or likely harm to society was significant. In the context of proportionality, it is a very grave offence. [ 38 ] It was perpetrated by Mr.

Verhoek over an extended number of days and involved inducing his Female Accomplice to assist him by offering to split a “big payout” that he told her he would receive – essentially offering her a bribe. [ 39 ] This was a planned and deliberate offence, designed and committed in an effort to escape criminal liability for other serious offences. [ 40 ] Significant investigation, including the application for and issuance of a Production Order, was required to discover Mr. Verhoek’s criminal activity. [ 41 ] I find that Mr.

Verhoek’s degree of responsibility is high – he climbed high on the ladder of moral culpability. [ 42 ] Although this is Mr. Verhoek’s first conviction for an offence contrary to section 139(2), his extensive criminal record is an aggravating factor on sentence. That record includes, but is not limited to, two convictions for breaching Probation Orders and multiple convictions under

section 145. As noted in R v Emmelkamp , at paragraphs 21 to 26 , an offender’s history of convictions for these types of offences indicates a need for specific deterrence and denunciation, as “...it would appear that the respondent has learned absolutely nothing from his previous encounters with the criminal justice system...”.

CONCLUSION [ 43 ] Taking into account the sentencing principles and objectives as well as the aggravating and mitigating factors, described in these Reasons, I have determined that a fit and appropriate sentence is 18 months (i.e. 540 days) imprisonment, and I impose that sentence. [ 44 ] Mr. Verhoek has spent 51 days in custody on this Information to date and he shall therefore be given credit for 77 days served, calculated on an enhanced basis, leaving 463 days to be served as of today. [ 45 ] I will not order that Mr.

Verhoek be subject to a Probation Order following that term of imprisonment, as he has a history of conviction for offences related to breaching Court Orders, including but not limited to Probation Orders, and he has not expressed any willingness to comply with a further Probation Order. [ 46 ] Section 139(2) is a secondary designated offence pursuant to

section 487.04 (a.1). As the Crown has not applied for an Order under that

section I will not make such an Order. [ 47 ] The Victim Fine Surcharge is waived on the basis of undue hardship, given Mr. Verhoek’s recent and continuing incarceration. Heard on the 30 th day of May 2023 and the 8 th day of June, 2023 and the 13 th day of June, 2023 and the 19 th day of July, 2023. Decision delivered orally on the 19 th day of July, 2023. Dated at the City of Red Deer, Alberta this 24 th day of July, 2023. G.A.G. Yake A Justice of the Alberta Court of Justice

Appearances: D. Mitchell for the Crown P. Tesi for the Accused