R. v. Corcoran, 2023 NBPC 8

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: February 1st, 2023 Sentencing Decision Date: April 25th, 2023Docket No.: 158105 Neutral Citation: 2023NBPC08 HIS MAJESTY THE KING - and - KEVIN JAMES CORCORAN Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on April 25th, 2023. APPEARANCES: Alana Napke, on behalf of His Majesty The KingDustin Caissie, on behalf of Mr. Corcoran INTRODUCTION 1.

On December 20th, 2022, Kevin James Corcoran, (“Mr.

Corcoran”) was found guilty after trial of two indictable counts set out in an Information sworn to on March 15th, 2021, which, as subsequently amended, read as follows: COUNT 1 - Kevin James CORCORAN on or about June 26, 2020 at Miramichi, New Brunswick did, with intent to mislead, makebefore a person authorized by law to permit it to be made, namely: Constable Brennan Pryor, a false statement under oath, to wit: that he spoke to Tristan Munn over the phone on 22nd June 2020, and that in the course of that phone conversation, he was threatened by TristanMunn, knowing the statement to be false, contrary to

Section 132 of the Criminal Code of Canada and amendments thereto. COUNT 2 - Kevin James CORCORAN on or about June 26, 2020 at Miramichi, New Brunswick did, with intent to mislead, cause apeace officer to enter upon an investigation by making a false statement that accused some other person of having committed an offence, to wit: a statement that he was threatened by Tristan Munn during a phone conversation on 22nd June 2020, contrary to Subsection140(2) of the Criminal Code of Canada and amendments thereto. 2. The trial decision is reported as R. v. Corcoran, 2022 NBPC 8 , 2022 NBPC 08. 3.

Central to the disposition of this proceeding given the particular nature of the charges against Mr. Corcoran was the content of a KGB Statement that Mr. Corcoran provided to Constable Brennan Pryor of the Miramichi Police Force (the “MPF”) on June 26th, 2020

(the “Corcoran KGB Statement”). The Corcoran KGB Statement detailed, among other things, a threat or threats from Tristan Munn (“Mr. Munn”) to Mr. Corcoran which were reportedly made by telephone on June 22nd, 2020. 4. For context, Mr. Munn is the current intimate partner of Mr. Corcoran’s former intimate partner, Ashton Corcoran (“Ms.Corcoran”). Mr. and Ms. Corcoran have a young daughter together. Suffice it to say their relationship did not end well. Mr. Corcoran iscurrently incarcerated and Mr. Munn, who was formerly employed by Mr.

Corcoran’s now defunct insulation business, lives with Ms.Corcoran in a residence that belongs to Mr. and Ms. Corcoran. This was also the case in June of 2020. As was addressed in the trialdecision, a negative and acrimonious relationship exists between Mr. Corcoran and Mr. Munn. 5. It was this Court’s finding after trial that the Corcoran KGB Statement detailed false allegations against Mr. Munn which Mr.Corcoran intentionally advanced under warning and under oath with the knowledge that such allegations were untrue. This Court furtherfound that Mr. Corcoran’s false allegations against Mr.

Munn caused Constable Pryor to enter upon what turned out to be an extensiveand, ultimately, a meritless and unwarranted criminal investigation involving Mr. Munn. 6. Mr. Corcoran’s sentencing hearing was held on February 1st, 2023 and this Court reserved decision until March 17th, 2023 owing to the widely divergent recommendations of counsel. In the intervening period, on February 21st, 2023, Mr. Corcoran’s solicitor filed a Notice of Application with this Court, which was further amended on March 14th, 2023, seeking that his client’s case be reopened, amistrial declared and a new trial ordered.

The ground relied upon in support of this remedy was that “new evidence” came to Mr.Corcoran’s attention after trial by way of a request made to the MPF pursuant to the Right to Information and Protection of Privacy Act,2009 S.N.B., c. R-10.6. This so-called “new evidence” was unknown to the Crown and not disclosed. Had this so-called “new evidence”been known to the Crown and disclosed in the context of this proceeding, argued Mr. Corcoran’s solicitor, it could have had a materialand substantial bearing on this Court’s positive assessment of Mr. Munn and Ms.

Corcoran’s credibility which, in turn, could haveinformed a reasonable doubt regarding Mr. Corcoran’s guilt. Because Mr. Corcoran had not been sentenced at the time this Applicationwas filed, a “conviction” had not been entered. Accordingly, this Court retained jurisdiction respecting this Application. 7. This Application was heard on April 13th, 2023. By decision dated April 19th, 2023, which is reported as R. v. Corcoran, 2023NBPC 6 , 2023 NBPC 06, this Court refused the relief sought therein. This brings us now to the sentencing of Mr. Corcoran. THE ISSUE 8.

The single issue this Court must decide is what is a fit and appropriate sentence for Mr. Corcoran. POSITIONS OF THE PARTIES 9. The parties substantially

part company respecting their sentencing recommendations to this Court and each has provided case lawin support of their respective positions. 10. The Crown recommends a consecutive global sentence of 24 months (18 months on Count #1 and six months on Count #2). Insupport of its recommendation, the Crown emphasizes that Mr. Corcoran’s actions were planned and deliberate with the intention tomanipulate the justice system to serve his personal agenda against Mr. Munn.

Offences against the administration of justice, submits theCrown, strike at the very core of our system of justice and, accordingly, must be dealt with both strictly and severely. 11. In making its recommendation, the Crown emphasized Mr. Corcoran’s criminal record (see Exhibit “C-1”), which includes an 18-month consecutive sentence that was imposed in April of 2022 for obstruction of justice contrary to paragraph 139(2)(

a) of the CriminalCode. Exhibit “C-1” was admitted on consent at the sentencing hearing. The Crown sees this 18-month consecutive sentence as abaseline for Mr. Corcoran's sentencing in the instant case and anchors this position in the fact that obstruction of justice and perjurycome from the same family of criminal offences, being offences against the administration of justice. 12. The Court notes that the 18-month sentence rendered in April of 2022 for obstruction of justice was upheld on appeal to the Court ofAppeal of New Brunswick (see: Corcoran v. R., 2022 NBCA 54 ).

After detailing the factual matrix underlying this decision(see paragraphs 1 through 10), which consisted of an elaborate, aggressive and relentless six-month campaign by Mr. Corcoran to defeatthe course of justice through the coercion of his former intimate partner to get her to recant her evidence in order to exculpate him, theCourt of Appeal of New Brunswick upheld this sentence as reasonable, albeit “on the high end of the spectrum” (see paragraph 30). 13. A few things ought to be noted and clarified about the earlier decision involving Mr. Corcoran at the earliest opportunity.

First, the event date of the two offences presently before this Court was June 22nd, 2020. From paragraphs 1 through 10 of Corcoran v. R., it isclear that the event period underlying the obstruction of justice charge spanned a subsequent period from July until December of 2020.Owing to these considerations, the Crown’s suggestion that this Court ought to treat Mr. Corcoran’s 2022 conviction as a prior record isproblematic as is the use of this precedent to anchor or substantially inform what an appropriate sentence should be in this case. It is,however, relevant to this Court’s consideration of Mr.

Corcoran’s rehabilitative potential in the context of sentencing (see Jollie v. R.,2020 NBCA 58 (NBCA) at paras. 18 through 20). 14. Mr. Corcoran’s solicitor recommends a consecutive global sentence of three months, submitting that the factual matrix underlyingMr. Corcoran’s earlier obstruction of justice sentence of 18 months was more egregious. He didn’t emphasize or otherwise note theadditional considerations canvassed in the immediately preceding paragraph. Mr.

Corcoran’s solicitor also notes that his client iscurrently serving a combined global consecutive sentence of 66 months arising from two past convictions and that the principle oftotality figures prominently in this case and works to his client’s benefit. THE APPLICABLE LAW The General Principles and Purposes of Sentencing

15. Sentencing has been described as “one of the hardest tasks confronting a trial judge” (see R. v. Gardiner, (SCC) atpara. 108). The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the “credibilityof the criminal justice system in the eyes of the public” (see R. v. Lacasse, 2015 SCC 64, at para. 3). 16. The task is governed by the provisions of the Criminal Code but it involves “the exercise of a broad discretion by the courts inbalancing all the relevant factors in order to meet the objectives being pursued in sentencing” (see R. v.

Bosco, 2016 BCCA 55, at para.29). The purpose and principles of sentence, as set out in the Criminal Code, allow for “sentence individualization" and guide thesentence this Court must impose. 17. In particular,

section 718 of the Criminal Code describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 18. What constitutes an appropriate sanction and which of the objectives may be most important is not dictated by strict guidelines orrigid imperatives. Rather, the imposition of a just sentence requires “sufficient manoeuvrability to tailor sentences to the circumstancesof the particular offence and the particular offender” (see R. v. Ipeelee, 2012 SCC 13, at para. 38). Put another way, sentencing is moreart than science. 19.

Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles ofsentencing and highlight those that are predominant in this case. 20. The objectives described in

section 718 of the Criminal Code may have predominance in a set of circumstances dictated by theoffence, the offender or both. On some occasions the objective of denunciation (often along with deterrence) “must be emphasized toconvey society's condemnation” (see R. v. Lacasse, 2015 SCC 64, at para. 5). When denunciation becomes predominant, courts may“have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peacefuland law-abiding society” (see R. v. Lacasse, 2015 SCC 64, at para. 6).

This Court is required to attribute to the objectives of denunciationand deterrence their proper predominant influence in the crafting of a just sentence. 21. Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. The sentencing court must look at theindividual, his record and attitude, his motivation and his reformation and rehabilitation. 22.

General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim,the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it eitherto the individual or to the community and the public attitude toward it. 23. The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert withsubsection 718.2(

e) of the Criminal Code, which essentially requires that imprisonment be the sentence of last resort. There arecircumstances of both offender and offence, however, that require Mr. Corcoran to be imprisoned in this case. 24. The maintenance of a just, peaceful and safe society, as is mandated by

section 718 of the Criminal Code, can often best be achievedby the rehabilitation of offenders. As the Supreme Court of Canada has held, “Rehabilitation is one of the fundamental moral values thatdistinguish Canadian society from the societies of many other nations in the world” (see R. v. Lacasse, 2015 SCC 64 at para. 4). 25. The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.

This is a codification of the proportionality principle and is found at section718.1 of the Criminal Code. 26. Other principles are important in crafting an appropriate sentence here. First, subsection 718.2(

b) of the Criminal Code states that “asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This is acodification of the parity principle. 27. Subsection 718.2(

a) of the Criminal Code indicates that a “sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender”.

Section 718.2 also dictates that: (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

f) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal

offenders. 28. The “totality principle” strongly militates against the imposition of “unduly long”, “disproportionate” or “crushing” consecutivesentences, as is codified in subsection 718.2(

d) of the Criminal Code. In effect, the “totality principle” safeguards against a “pile on”,which can present in a wide variety of circumstances including those where the offender faces multiple charges committed in rapidsuccession and/or the offender is serving a consecutive sentence or consecutive sentences already. The applicable principles andcorresponding approach to totality were recently re-emphasized by the Court of Appeal of New Brunswick in Brown v.

R., 2022 NBCA33 , where the following was noted at paragraph 23: [23] A framework for the principled application of the totality principle was addressed by this Court in R. v. Peterson, 2017 NBCA29, [2017] N.B.J. No. 152 (QL), per Quigg J.A., which adopted the guidelines set out in R. v. Hutchings, 2012 NLCA 2, [2012] N.J. No.12 (QL), per Green C.J.N.L., as he then was.

These guidelines (Hutchings, at para. 84) may be summarized as follows: 1. identify a sentence for each offence, applying proper sentencing principles; 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute asingle criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determinewhether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility ofthe offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree ofresponsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced toachieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with othersentences, but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what itwould otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, withoutconsiderations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be madeconcurrent or to be otherwise reduced. 29. These are the general principles that inform the sentencing of Mr. Corcoran by this Court. The Predominant Sentencing Principles in Cases of Perjury and Public Mischief 30. The leading decision on perjury in New Brunswick is R. v. Johnson, (NBCA).

In that decision, the Court ofAppeal of New Brunswick provided an instructive overview of the applicable sentencing principles in the context of a Crown appeal of asentencing decision made at first instance where three months was imposed to run concurrent with the sentence on another count. 31. At paragraph 12, Bastarache, J.A. (as he then was) set out the law as follows: [12] In R. v. Albert (1984), (NB CA), 60 N.B.R. (2d) 80; 157 A.P.R. 80 (C.A.), at p. 85, this court recognized theseriousness of the offence of perjury, and found that it warrants a sentence of imprisonment.

The length of the sentence will depend onmany factors mentioned in the trial judge's decision, notably the nature of the offence initially under prosecution (see R. v. Morgan(1979), 19 Nfld. & P.E.I.R. 176; 50 A.P.R. 176 (Nfld. C.A.) and R. v. Martin (R.J.) (1993), (NB KB), 141 N.B.R.(2d)227; 361 A.P.R. 227 (T.D.)), the intention of the perjurer (see R. v. King (M.M.) (1987), (NL SC), 67 Nfld. & P.E.I.R.85; 206 A.P.R. 85 (Nfld. T.D.)) and the circumstances of the offender (see R. v. Williams (1978), (ON CA), 41 C.C.C.(2d) 6 (Ont. C.A.)). In R. v.

Van Straten (S.D.) (1994), 1994 ABCA 135 , 149 A.R. 259; 63 W.A.C. 259; 89 C.C.C.(3d) 470(C.A.), and A.J. No. 740, the Alberta Court of Appeal set out a non-exhaustive list of factors to be considered. In the memorandum ofjudgment, at para. 6 of the Q.L. report, the following is stated: "In sentencing the respondent, the learned trial judge considered, one by one, most of the factors itemized by Laycraft, C.J.A., for theCourt of Appeal of Alberta in R. v. Jordan and Sager, unreported, July 30, 1986, Calgary Appeal Nos. 18333 and 18373. While expressly

disclaiming any intention to pronounce an exhaustive list, Laycraft, C.J.A., stated that the following are some of the factors which enterinto a consideration of the length of sentence for perjury. 1. The relative seriousness of the offence with respect to which the perjured testimony was given. 2. The effect, if any, on the outcome of the trial by reason of the perjured evidence. 3. Whether the testimony dealt with a vital part of the evidence. 4. Whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravatingfactor. 5.

Whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence." And at para. 8 (Q.L.): "... We would add a sub-factor to factor 2, namely that, even if the perjured evidence did not in the result have an effect on the outcomeof the trial (or application, in this case), an important factor to be considered is the effect which the perjuring witness intended to haveupon the outcome...." (emphasis added) 32.

In the result, the Court of Appeal of New Brunswick found at paragraph 14 that the sentencing judge erred in allowing the perjurysentence to run concurrently and, consequently, substituted a three-month consecutive sentence: “The public must also be aware of thefact that there is a penalty attached to the crime of perjury as such. A concurrent sentence cannot be said to achieve this goal”. 33. In R. v. Martin, (NBKB), Creaghan, J. had occasion to consider the predominant considerations that underlysentencing for perjury.

This decision arose in the context of false testimony given on a critical issue during a jury murder trial. Creaghan,J. noted beginning at page 3: It goes without saying that perjury is a crime that strikes directly at the roots of our judicial system. We rely on sworn testimony ofwitnesses to determine the truth. Unless our system of justice can expect witnesses to tell the truth, there is no reliable basis for a court oflaw to come to a determination of the issues before it.

If witnesses are of the impression that their oath to tell the truth will attract littleresponsibility or consequence, then their reliability will be suspect and the system will fall into disrepute. So the nature of the offence of perjury takes on particular significance when it comes to sentencing. The New Brunswick Court of Appeal stated clearly in R. v. Albert (1984), (NB CA), 60 N.B.R. (2d) 80 that perjury isa very serious offence whose nature undermines the very foundation of the penal system and warrants a prison sentence.

The sentence for perjury should take into account the gravity of the offence under prosecution. This principle that the seriousness of thelitigation will affect the sentence for perjury is given clear support in precedents where perjury was committed in the course of a murdertrial as was the case here. The Ontario Court of Appeal upheld a six-year sentence in R. v. Gushue (1976), (ON CA), 32C.C.C. (2d) 189. (emphasis added) 34. Continuing further at page 5, Creaghan, J. quoted with approval from the Court of Appeal of Ontario’s decision in R. v.

Glauser(1981), 1981 ABCA 345 , 25 C.R. (3d) 287 (ONCA), where the following observations were made: The administration of justice is based upon the truthful testimony of those persons who are called to give evidence under oath. Thefreedom or, on the other hand, the incarceration of accused persons in serious criminal offences depends totally upon the truthfulness ofthose witnesses. (emphasis added) 35. Finally, at page 6, Creaghan, J. noted: “The public must be protected and that goes directly to the attack perjury presents on thesystem of justice.

The accused and others who might contemplate perjury, particularly in criminal trials for serious offences, must see aclear deterrence to committing such a crime”. (emphasis added) 36. In R. v. Kusnezoff, (BCCA), the British Columbia Court of Appeal articulated an order or sequence of threegradations of perjury in terms of their seriousness while being quick to acknowledge that any instance of perjury is an extremely seriouscriminal offence: …the nature of the perjury can affect the seriousness with which the offence is viewed.

The most serious category is where the perjuredevidence is being given to lead to the conviction of an innocent person. The second most serious category is where, as in this case, the perjured evidence is given in the hope of procuring the acquittal of aguilty person. The third and final category, in a descending order of seriousness, is where a person gives perjured evidence to protect himself orherself. I agree with that categorization though I emphasize that all categories of perjury are very serious offences because of their effect onthe whole administration of justice. (emphasis added) 37.

It has been said that perjury is an offence that is easy to commit, yet difficult to prove. Once proven, the offender must expect severepunishment (see R. v. Foster [1982] S.J. No. 1124 (Sask. CA). 38. At a high level, it is clear from the foregoing authorities that denunciation and deterrence, both specific and general, are thepredominant sentencing principles that apply to perjury and that sentences will vary widely depending on the specific nature, context and

seriousness of the perjury. The same observations apply to public mischief (see R. v. Ambrose, 2000 ABCA 264 , [2001] 1W.W.R. 117 (Alta. CA)). The Victim Impact Statement of Mr. Munn 39. In reviewing the Victim Impact Statement provided by Mr. Munn, it should be noted that it is difficult to distinguish between theimpact these specific events have had on him relative to the broader cumulative effect of the overall toxicity that permeates hisrelationship with Mr. Corcoran, as further described in the trial decision. Mr.

Munn reports that he has experienced “extreme stress,panic attacks” and an overall diminution of his enjoyment of life. Due to these factors, he has been treated by a physician and prescribedmedication. He is worried about “what Corcoran might attempt next”. 40. Mr. Munn also emphasizes in his Victim Impact Statement that this ordeal has resulted in the loss of a substantial amount of histime. In addition to the considerable effort Mr. Munn expended untangling Mr. Corcoran’s deceit in the context of the MPFinvestigation, where the weight of a potential prosecution hung over his head, Mr.

Munn was also required as a witness in this matter.Putting aside the mental and emotional stress, this entire affair has been particularly challenging in Mr. Munn’s circumstances from afinancial perspective given that he is self-employed. 41. Being the subject of false allegations of a criminal nature would undoubtedly be a source of considerable stress. It placed Mr. Munnin the untenable position of having to go to great lengths to demonstrate to the MPF that the allegations advanced against him in theCorcoran KGB Statement were false, which ultimately then caused the focus of the investigation to shift to Mr.

Corcoran and brings usto where we are today. The Background and Circumstances of Mr. Corcoran 42. The Court has the benefit of a Pre-Sentence Report prepared in relation to Mr. Corcoran. He is 38-years-old and non-indigenous. Bytrade, Mr. Corcoran is a red seal insulator. He was the proprietor of two local businesses for the better part of a decade, both of which arenow bankrupt. Mr. Corcoran is incarcerated at Springhill Institution in Springhill, Nova Scotia where he is serving a global consecutive sentence of 66 months. His warrant of expiry date is January 7th, 2026. 43. Mr.

Corcoran had a challenging upbringing. His parents were both only 15 years-old when he was born and they separated when hewas a toddler. He reports he was subjected to ongoing physical, verbal and emotional abuse in the households of both parents as a child ashe was shuffled between his mother and father. Eventually, at age 14, he moved in with his paternal grandparents. At age 18, he movedout on his own. In more recent years, Mr. Corcoran’s relationship with his father has grown into a positive one. His primary point offriction on his father’s side was with his stepmother (who is now his father’s ex-wife). 44.

Mr. Corcoran has four children from four different past relationships. The Pre-Sentence Report also details his struggles withphysical and mental health. His health issues include depression, anxiety and suicidal ideations and attempts. Physically, Mr. Corcoranhas suffered a broken neck, a stomach ulcer and liver problems. 45. Mr. Corcoran has made productive use of his time while incarcerated at Springhill Institution, where he works in the clothingexchange and recycling. He also recently started a small engine repair program. Turning to his involvement in available counselling andprogramming, Mr.

Corcoran has completed an intensive 50-session course that aims to address criminal risk factors through cognitiveand behavioural therapy and another program directed at fathers who are incarcerated, which focuses on healthy parenting and positivecommunication. He is to be commended for his considerable efforts at self-improvement and, relatedly, for addressing head-on some ofthe root causes of his past criminality. This provides a source for some optimism respecting Mr. Corcoran’s rehabilitative potential. AGGRAVATING AND MITIGATING FACTORS Aggravating Factors 46.

Having regard to the principles of law earlier canvassed, I find the following circumstances to be aggravating in this case: a. The fiction conveyed under warned oath in the Corcoran KGB Statement set in motion an entirely meritless and serious criminalinvestigation respecting Mr. Munn which, based on his Victim Impact Statement, understandably had (and continues to have) aprofoundly negative effect on him. This, in my view, satisfies the criteria set out in paragraph 718(2)(iii.1) of the Criminal Code. b. I also consider it aggravating that the initiative concocted by Mr. Corcoran to falsely implicate Mr.

Munn from a criminal lawperspective was the product of planning and deliberation rather than a spontaneous utterance. Thankfully, its deceitfulness wasuncovered before it progressed to a trial and potential conviction of Mr. Munn. c. Mr. Corcoran has a criminal record which has intensified considerably in recent years; however, to the extent I was not sufficientlyclear at paragraph 13 above respecting my treatment of Mr. Corcoran’s April 2022 conviction for obstruction of justice, let me repeatthat this is not being considered as a prior conviction for a similar or related crime for the reasons earlier expressed.

Mitigating Factors 47. I find the following circumstances to be mitigating in this case: a. Mr. Corcoran has undertaken some notable positive steps during his current period of incarceration to avail himself of a wide rangeof counselling and programming to address criminal risk factors and past traumas in his life with a view to reorienting the troubling pathhe has been on over the last several years. His Pre-Sentence Report is positive in many respects. THE OFFENCES AND THE RANGE OF SENTENCE Preliminary Observations 48.

In considering what constitutes a fit and appropriate sentence, this Court must look to the sentencing ranges prescribed in theCriminal Code for these offences as well as relevant sentencing case law. 49. It should be noted from the outset that the two offences before this Court, though consisting of different essential elements whichhave all been proved by the Crown beyond a reasonable doubt, arise from the same general context and circumstances. The rule againstmultiple convictions, known as the Kienapple principle, prevents more than one conviction for a single criminal act.

That is to say theKienapple principle will apply where “the offences charged do not describe different criminal wrongs, but instead describe differentways of committing the same criminal wrong” (see, generally, R. v. Kienapple, (SCC)). I agree with the Crown’ssubmission that the two distinct offences before this Court do not engage this longstanding foundational principle of criminal law. This isnot disputed by Mr. Corcoran’s solicitor. 50.

Relatedly, however, the Court also wishes to address the Crown’s submission at this juncture that the sentence imposed on thesecond count should ultimately run consecutive to the first. This submission is rejected. In reaching this conclusion, I acknowledge thepresumption in favour of consecutive sentences but I also note that the close nexus between these two offences in terms of both time andplace defeats this presumption. In reaching this conclusion, this Court has considered the direction of the Court of Appeal of NewBrunswick at paragraph 13 in R. v. Veysey, 2006 NBCA 55 : [13] In R. v.

Johnson (1996), (NB CA), 182 N.B.R. (2d) 373 (C.A.) the court held that for concurrent sentences tobe imposed there must be a reasonably close nexus between the offences in time and place. In R. v. J.F. (2001), 240 N.B.R. (2d) 159,2001 NBCA 81 the Court intervened because the sentencing judge erred in imposing concurrent sentences when there was no temporalnexus between the two offences that the accused committed. The accused had committed two separate offences against two entirelydifferent victims and the events had occurred two years apart.

The Court held that the fact there was no nexus between the two offenceshas a bearing on the question of the totality of the sentence, and that it was not appropriate to impose concurrent sentences in thosecircumstances… (emphasis added) The Sentencing Ranges for the Offences of Perjury and Public Mischief in the Criminal Code 51. The indictable offence of perjury under

section 132 of the Criminal Code carries a maximum term of imprisonment of 14 years.There is no minimum. 52. As for the indictable offence of public mischief under subsection 140(2) of the Criminal Code, the maximum term of imprisonmentis five years. There is also no minimum. 53. The magnitude of the statutory sentencing ranges Parliament has assigned to these offences in the Criminal Code animates theirseriousness. It is a core principle of sentencing law that the ranges set out in the Criminal Code inform the fashioning of a fit andappropriate sentence and I have considered same. Common Law Guidance 54.

The case law provided by the Crown is helpful insofar as it pertains to the sentencing principles and related analytical frameworkthat applies to perjury; however, the Crown acknowledges there is limited sentencing guidance in New Brunswick for this form ofoffence. Moreover, the authority that does exist cuts a wide swath depending on the circumstances and context. Beyond that, anadditional challenge arises from the fact that perjury is committed in a variety of situations with varying degrees of gravity.

Mostfrequently, it arises in the context of false trial testimony intended to either exculpate a guilty accused or cement the conviction of aninnocent one. This was the case in R. v. Martin in which a sentence of 42 months was imposed for an offender with a limited criminalrecord in a very serious case of perjury arising in a jury murder trial. 55. This case involves the filing of a KGB Statement which falsely accused Mr. Munn of uttering a threat or threats to Mr. Corcorancontrary to the Criminal Code: a serious offence but one that does not approach the gravity of the circumstances in R. v. Martin.

TheCrown relies heavily on the sentence imposed in Corcoran v. R. to support its sentencing recommendation regarding the perjury charge. Ihave already addressed some of the issues relative to this recommendation. The Crown did not provide any case law to ground itssentencing recommendation on the public mischief charge. 56. Most of the case law provided by Mr. Corcoran’s solicitor deals either with the totality principle or public mischief. In Brun v. R.,2006 NBCA 17 (NBCA), the accused reported to the police that she had been the victim of a robbery.

This caused the police toinvestigate, arrest and detain four youths that same evening. In the course of being apprehended, three of the youths suffered seriousinjuries when they were bitten by a police dog. As the investigation progressed, the police realized the accusation made by the accusedwas false. She was charged with indictable public mischief and attributed her actions to a drug problem. The accused plead guilty andhad what the Court of Appeal of New Brunswick described as a “significant criminal record”. She was sentenced to three months

incarceration and filed a very ambiguous appeal. At paragraph 9, the sentence was upheld to the extent the appeal could be interpreted asan appeal of sentence because it was “not demonstrably unfit”. 57. In R. v. Steinsen [2005] B.C.J. No. 2163 (BCPC), the accused was sentenced to 45 days for public mischief after having calledCrime Stoppers to falsely implicate her ex-boyfriend in a local unsolved murder investigation. The subtext of the animus between themwas a custody dispute involving their child. She plead guilty to the charge following a preliminary inquiry and had a minor criminalrecord. 58. In R. v.

Akinyemi, 2014 ONCJ 278 (OCJ), the accused was found guilty after trial of public mischief, attempted fraud over $5,000.00and perjury. He falsely reported the theft of his motor vehicle to defraud his insurer and, in so doing, obtained a proof of loss statementunder false pretenses and lied under oath. A sentence of three months was imposed on the perjury charge, which was an adoption of theCrown’s recommendation. In passing this sentence, the Court acknowledged that this instance of perjury fell under the least serious thirdcategory earlier identified in R. v. Kusnezoff. 59. In R. v.

Gould, a 2011 decision of Gorman, P.C.J. of the Provincial Court of Newfoundland and Labrador Court for which this Courtdoes not have a citation, the accused was charged with

summary public mischief and sentenced in the community to four months forfalsifying an assault complaint against her partner. She showed bruises to the police and attributed same to the reported assault. Theaccused provided a statement to police under oath confirming the details of the reported assault and her partner was kept in custodyovernight. She later recanted this story in a second sworn statement and went to great lengths to have the Crown withdraw the assaultcharge against her partner. 60.

This Court has endeavoured to find additional common law authority addressing sentences for perjury that more closely align withthe circumstances and context of this case. This effort, however, has proved to be somewhat illusory. 61. Having regard to what I will call the intermediate sentencing range of 12 to 18 months for perjury, this Court has identified severalauthorities. Many of these cases have involved deceitful conduct by the accused to secure bail or vary release conditions. 62. In R. v.

Corbett, 2006 BCCA 257 (BCCA), the British Columbia Court of Appeal found a sentence of 18 months to be excessive andreduced it to 12 months. In that case, a 22-year-old accused with a “relatively modest record” plead guilty to perjury. He was originallycharged with driving offences and with failing to stop for the police. He was released on conditions and applied two months later to varythose terms to give him more flexibility. In the course of his application, he filed an affidavit which included an exhibit purporting to bea letter from a person who had been his previous employer.

It was later determined that this letter was a forgery and that it had not beenwritten by the employer at all. At paragraph 10, the following observations were made: [10] The ultimate question in all these sentencing cases is fitness. Here, it seems to me that perhaps the learned trial judge was notsufficiently alive to the age and prospects of this offender. I consider that the sentence of 18 months imposed was rather more than wasrequisite. It seems to me that a sentence of 12 months should suffice to deter this young person, if anything will.

In the circumstances ofthis offence and this offender, I consider that it would be fit to reduce this sentence from a sentence of 18 months incarceration to asentence of 12 months incarceration. (emphasis added) 63. In disposing of this matter, the British Columbia Court of Appeal noted an uptick in the magnitude of sentences for perjury over thecourse of the preceding 15 years and, accordingly, cautioned against reliance on older authorities. 64. In R. v. Talbot, [2013] O.J.

No. 3230 (OSC), an indigenous accused with a lengthy criminal record plead guilty to perjury after filingtwo fabricated letters during a bail hearing on a breach of probation charge. He also gave false testimony at the bail hearing, conveyingthat he was employed and would lose his employment if denied bail. These actions demonstrated significant planning and deliberationand, despite the factors noted above and a positive Pre-Sentence Report, the accused was sentenced to 16 months. 65. A similar set of facts existed in R. v.

J.W.C., 2005 BCPC 565 , 2005 BCPC 0565 (BCPC) in which a 24-year-old offenderwho entered a guilty plea to perjury on the trial date was sentenced to 18 months. In support of an application to vary his releaseconditions, the accused filed a false affidavit from his employer. The contents of the affidavit and the supporting letter explained thereasons and need for the variation. In fact, the letter attached to the affidavit was not written by the accused’s employer at all. The Crowncalled the employer to confirm the letter’s contents and determined that the employer knew nothing about the letter.

The accused hadwritten and signed the letter without the employer’s knowledge or permission. 66. In R. v. Spath, 2003 ABCA 46 (Alta. CA), the Court of Appeal of Alberta upheld a 12-month sentence for perjury in circumstanceswhere an accused falsely denied under oath that he was the driver of a vehicle when his blood alcohol was more than 80 milligrams. 67. In R. v.

D.(C.), (ONCA), the accused sought to be released pending the appeal of a sexual assault conviction andfiled an affidavit indicating that his two employers were aware of his conviction and, nonetheless, had positions available for him if hewas released. It was clear from the evidence of the employers in question that a person facing a sexual assault charge, let alone a personhaving been convicted of one, would have been totally unacceptable as an employee of either employer.

One of the fields of employmentwas that of a nurse in a group home for “developmentally-handicapped adults” and the other was working for a community-basednursing service providing home care. In the circumstances, the Court of Appeal of Ontario upheld the 12-month perjury sentence. 68. When we climb beyond what I have called the intermediate range into what I will call the upper range, we begin to see cases akin toR. v. Martin or cases in which police officers have committed perjury. 69. In one such case, R. v.

Schertzer, 2015 ONCA 259 (ONCA), five members of the Toronto Police Service Drug Squad lied aboutwhen a search was conducted. They falsified their notes, lied in a subsequent information to obtain a search warrant and gave falsetestimony in order to conceal the real moment of execution of the search. All of the accused were found guilty of attempting to obstructjustice. Three were also convicted of perjury. A sentence of 36 months was imposed by substitution on appeal.

70. In a similar case, R. v. Millington, 2015 BCSC 1380 (BCSC), the accused made false statements at the inquiry into the death ofRobert Dziekanski at the Vancouver International Airport. He was one of the four police officers who had detained Mr. Dziekanski atthe airport. The accused applied a taser to Mr. Dziekanski five times, which led to his death. The perjury was on material aspects of theencounter and his evidence had been contradicted by video.

The testimony frustrated the ability of the inquiry in its search for answers.The accused’s evidence continued over several days and unfairly cast the victim in a negative light. He had no prior record and manyletters referencing his good character. The option of a conditional sentence was rejected because it would not adequately meet the needfor deterrence and denunciation and, instead, a 30-month sentence was imposed. APPLICATION OF THE LAW 71.

Perjury strikes at the very core of the administration of justice and, as is evidenced by the authorities earlier canvassed, thisparticularly insidious form of criminality arises in a wide range of contexts and can produce a myriad of repugnant and catastrophicoutcomes. The administration of justice is predicated on the truthful testimony of those persons who give evidence under oath, regardlessof the context or forum in which that evidence is given. 72. Every aspect of perjury is problematic but one of its most nebulous features is the fact that it is easily committed, yet difficult toprove.

Accordingly, the longstanding default setting prescribed by the Court of Appeal of New Brunswick in R. v. Albert, (NBCA) is that the commission of this crime “warrants a prison sentence” because it “undermines the very foundation of the penalsystem”. Perjury must be strongly denounced and deterred. 73. In R. v. Kusnezoff, the British Columbia Court of Appeal outlined three gradations of perjury and observed that “[t]he most seriouscategory is where the perjured evidence is being given to lead to the conviction of an innocent person”.

The Corcoran KGB Statement,when laid bare, amounted to a deliberate, calculated and malicious attempt on the part of Mr. Corcoran to conscript the criminal justicesystem in service of his personal agenda against Mr. Munn. The inescapable conclusion arising from it is that Mr. Corcoran’s objectivewas to see Mr. Munn charged and, hopefully, convicted of a crime he did not commit. Thankfully, that result did not come to pass but itmost certainly could have and that, in and of itself, is very troubling. 74. At once, Mr. Corcoran’s calculated initiative amounted to an attack on Mr. Munn and on our system of justice.

In addition to thetorment it caused Mr. Munn and the jeopardy in which it placed him for a period of time, it also resulted in the frivolous deployment andconsumption of significant public resources. The moral blameworthiness of Mr. Corcoran is high. Accordingly, the message needs to besent to Mr. Corcoran and to the broader community that incursions of this nature on the administration of justice are intolerable andresult in significant punishment.

To treat instances of perjury lightly would, in effect, serve to license such criminality to the greatdetriment of the public and to our system of justice more generally. Several of the same observations apply to the count of publicmischief for which Mr. Corcoran is being sentenced. 75. This Court has considered the purposes and principles of sentencing, the aggravating and mitigating factors at play in this case andthe fact that Mr. Corcoran is a relatively young man who, despite his trajectory of criminality over the last five or six years, shows somepositive recent signs of rehabilitative potential.

This Court has also considered the sentencing ranges for the indictable offences ofperjury and public mischief, as established by Parliament in the Criminal Code. 76. In considering what constitutes a fit and appropriate sentence for Mr. Corcoran, I have completed what can fairly be described as anextensive survey of the applicable case law. This has been done in order to be faithful to the parity and proportionality principles.Moreover, this Court has considered the clear direction of the Court of Appeal of New Brunswick as it pertains to the totality principle.

Inparticular, this Court is mindful of the fact that Mr. Corcoran is currently serving consecutive sentences totaling 66 months and it mustavoid imposing a sentence that is “unduly long”, “disproportionate” or “crushing”, which would run contrary to subsection 718.2(

d) ofthe Criminal Code. 77. Having considered all of these factors, the submissions and recommendations of counsel and the body of applicable common lawauthority, I conclude that a sentence for Mr. Corcoran in the earlier identified intermediate range is in order. 78. On Count #1, being the perjury offence, this Court imposes a sentence of 15 months to run consecutive to any other sentence. Giventhe direction of the Court of Appeal of New Brunswick in Brown v. R., I take this opportunity to note that an 18-month consecutivesentence would have been imposed but for the application of the totality principle. 79.

On Count #2, being the public mischief offence, this Court imposes a 6-month sentence to run concurrent to any other sentence. Forthe reasons earlier stated at paragraph 50 of this decision, the Court of Appeal of New Brunswick’s direction in R. v. Veysey leads me toconclude that the presumption in favour of consecutive sentences is defeated in this case given the close nexus between these twooffences in terms of both time and place. 80. On February 11th, 2021, Mr. Corcoran was sentenced to 48 months, less a remand credit of 297 days. On April 22nd, 2022, Mr. Corcoran was sentenced to a further 18 months.

These were both consecutive sentences. On June 2nd, 2021, the Crown objected to Mr. Corcoran’s release on these charges. On August 3rd, 2021, Mr. Corcoran waived his right to a bail hearing. No remand credit applied tothe 18-month sentence on the second conviction for the same reasons that there is no remand credit in this case. 81. Mr. Corcoran’s warrant of expiry date is January 7th, 2026. In my view, remand credit does not apply to a period of time where anaccused is, at the same time, serving a period of incarceration for entirely unrelated crimes.

I had occasion to consider this issue in R. v.Henderson, 2022 NBPC 5 , 2022 NBPC 05 (see paras. 44 through 51) and hold to the same reasoning in support of theconclusion that Mr. Corcoran is not entitled to any remand credit in this case. In the interest of full transparency, this Court’s decision inR. v. Henderson has been appealed to the Court of Appeal of New Brunswick on sentence as well as the remand credit issue. This appealwas heard only last week, so no decision has been rendered. 82. In terms of ancillary orders, the Crown requests a DNA Order.

This is discretionary due to the fact that both offences are “secondary

designated offences”. A review of Exhibit “C-1” confirms that a DNA Order was made respecting Mr. Corcoran in 2020. Accordingly, this request from the Crown is redundant and is, therefore, denied. 83 . I recognize that Mr. Corcoran has been incarcerated for an extended period of time. In view of this and is broader financial circumstances, the Court waives the imposition of any Victim Fine Surcharge. 84 . That concludes the sentencing decision of this Court. Brittain, PCJ