) Mr. D. Melnyk ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Fisher - v. -, 2015 MBPC 71

CITE: 2015 MBPC 71 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. D. Melnyk ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. R. Fisher - and - ) in person ) ROBERT LEWIS FISHER, ) ) Sentence delivered Accused. ) September 3, 2015 _____ HARVIE, P.J. (Orally) The accused, Robert Fisher, has entered guilty pleas to two charges, one being a charge of criminal breach of trust committed between the dates of October the 5th, 2009 and June 18th, 2010, and one charge of forgery committed between the dates of July 17th, 2009 and November 10, 2010.

The accused was at the time a lawyer practicing in the City of Winnipeg and the breach of trust and fraud relate to his criminal misconduct respecting an estate. At issue is the appropriate sentence to be imposed. Crown counsel seeks a sentence of two years less a day in a provincial institution. Crown counsel acknowledges that given the dates of the offence, the accused is eligible for a conditional sentence but opposes the imposition of a conditional sentence. The accused, who was self-represented, asked the court to impose a conditional sentence.

Considerable information was provided to the court by consent including an agreed statement of facts and a booklet of exhibits. There was also a lengthy pre-sentence report prepared on the accused. Despite the dates of the offence the matter did not come before the court until late 2014. The matter was the subject of an investigation by The Law Society of Manitoba which concluded in January of 2012 with the accused being disbarred. The subsequent Winnipeg Police Service investigation was somewhat protractive and did not result in the accused being interviewed until October 15th, 2014.

After his arrest he was released by way of an appearance notice with his first appearance in December of 2014. He chose to enter a guilty plea to the charges in February of 2015 at which time a pre-sentence report was ordered and immediately prepared. Submissions were made respecting disposition on June 25th, 2015. The facts in support of the allegations: As indicated, the facts were put before the court by way of an agreed statement of facts. To summarize, the accused was approached by two women who were named as the executrixes of their aunt's will.

He was retained on August the 5th, 2009 to assist with the estate. The accused sought and was granted probate of the will from the Court of Queen's Bench on September the 9th, 2009. Having collected all of the assets from the estate from various financial institutions, the accused began a systematic scheme of misappropriating funds from the estate. Between October, 2009 and June, 2010 the accused wrote 17 unauthorized cheques, all for his personal benefit, on the trust account containing money from the estate. The total quantum of the trust monies fraudulently obtained by the accused was $75,476.73.

Money was obtained by the accused by various methods. The accused attended his own financial institution, where he maintained a personal account, with a falsely created letter of authorization bearing the forged signature of one of the executrixes purportedly assigning a cheque payable to her in the amount of $12,500 to himself. The accused presented the letter to the accounts manager, who was his sister. And on the basis of that letter he was permitted to deposit the fraudulent cheque into his own personal account.

A similar letter of authorization was created with the forged signature of the second executrix authorizing the assignment of a second sum of $12,500 which was deposited into his personal account. The estate file contained false correspondence to both executrixes

purporting to set out that they received the sum of $12,500 in accordance with the terms of the will. The genuine will contained no bequest of that amount to each of the executrixes. The accused also created and signed a fraudulent cheque dated February 19th, 2010 to an individual known to the accused in the amount of $10,000. The recipient later advised police that the payment constituted reimbursement from the accused for a personal loan that she had previously granted to him.

Further, a cheque in the sum of $6,500 purporting to be, “net settlement proceeds”, was made out by the accused to an individual not actually named as a beneficiary in the deceased's will. The recipient later advised that the accused had been her counsel on a civil matter and the accused represented to her that the payment constituted settlement money owed to her as part of the civil proceedings. False letters addressed to both individuals were found on the estate at the bottom of which it was falsely indicated that copies had been sent to the executrixes.

Over time further cheques were fraudulently written by the accused for a variety of purported reasons, such as payment for the reimbursement of expenses which were never incurred. Numerous letters on the estate file which were never actually sent provided an air of legitimacy to the so-called expense payments and other disbursements. By March of 2010 the accused distributed several cheques to beneficiaries in accordance with bequests in the original will. It appears that the estate was in the process of being finalized when the fraudulent transactions came to light.

In 2010, The Law Society of Manitoba conducted a spot audit of the accused's practice. While the audit was ongoing the accused attended to his office and created a false copy of the will in an effort, as he put it, to ‘obfuscate’ The Law Society's investigation. The forged copy of the will contained fictitious clauses with fictitious beneficiaries in order to provide a mask of legitimacy for the fraudulent cheques which the accused had already paid out from the deceased's estate. The forged copy of the will also completely deleted one beneficiary.

As a result of The Law Society investigation the accused was ultimately charged with professional misconduct. He appeared before the discipline committee on January the 17th, 2012 at which time he admitted the allegations of professional misconduct and was disbarred and was also ordered to pay a significant amount in costs. Following a Winnipeg Police Service commercial crimes investigation the accused was interviewed on October the 15th, 2014 and provided a videotaped confession. He was released by way of a promise to appear in court. Mr. Melnyk, are the executrixes here in court today? MR.

MELNYK: Both are, yes. THE COURT: Okay. Thank you. The impact on the victims: because of much of the remainder of this decision will involve a discussion of the accused and his background, I wish at this point to acknowledge the victims in this matter who became aware of the misappropriation to the investigation conducted by The Law Society of Manitoba. They have cooperated with the investigation conducted by The Law Society and by the police, prepared a victim impact statement and attended the sentencing hearing.

I am mindful that the actions of the accused represent for the victims more than just the misappropriation of money. They represent a level of disrespect to their aunt's estate and to them by extension for their aunt herself. In the victim impact statement Ms. Johnson describes her late aunt as, and I quote, “an amazing person, funny, feisty and, above all, loyal to her family”. She was a woman who “had a deep morality and a great sense of respect for the law and the legal system. It's horrifying to know that such respect and trust was breached.” The sentiments expressed are valid and completely understandable.

The executrixes were entitled to have their aunt's estate treated with respect and the deceased was entitled to have her wishes carried out. While the proceedings in this matter have been very protracted through no fault of either complainants or the accused, I am hopeful that the conclusion of these proceedings will allow the family to focus on their memories of their amazing aunt.

The background of the accused from the pre-sentence report: The court received considerable information with respect to the background of the accused largely through the pre- sentence report which was filed as Exhibit 3 in the sentencing. The accused was forthright about his background as well as many of his personal and professional challenges. By way of explanation for his actions, the accused explained that he had difficulty with the financial obligations related to the practice of law.

The pre-sentence report indicates that he, “admitted he eventually developed a problem with alcohol as alcohol numbed him to the terrible part of practice which was the billing of clients. He stated this morphed into stealing money as alcohol made it easier for him to legitimize his behaviour.” The accused confirmed that he came from a family with addictions issues and he himself has struggled with alcohol abuse. It appears that alcohol played a role in the break-up of his first marriage.

Family members who were interviewed confirmed that the accused is intelligent, in need of professional help for a variety of issues, but is at risk of, “convincing counsellors he no longer needs their help”. The pre-sentence report demonstrates that the accused has an awareness of his own shortcomings, describing himself as an individual with an “addictive personality” and one who is “prone to lying”. His level of self-awareness is important and very helpful.

But while he acknowledges his need for professional help, he expressed that he did not feel he was personally suitable for the type of group counselling that may be offered through Probation Services. Having said that, the accused also expressed a willingness to abide by any conditions imposed by the court. The accused was also forthright about the difficulties he has encountered in the past with the practice of law. Crown counsel filed by

consent the, quote, Discipline Case Digest of The Law Society of Manitoba confirming that on September the 9th of 1998 the accusedadmitted to six charges of professional misconduct. The digest states as follows: "On five occasions Mr. Fisher received sums ranging from $400 to $1,000 from clients as retainers for legal services to be performed oron account of fees and disbursements. The monies totalled $3,350. Mr. Fisher completed the legal services on behalf of each of the fiveclients but he failed to deposit the monies into the trust bank account of the firm where he practiced.

The funds were misappropriated byMr. Fisher from the law firm and were used to meet his personal financial obligations." So I realize with the nature of these previous difficulties with the practice of law are related but not quite the same as the misconductthat is before the court today. The committee accepted Mr. Fisher's admission to the counts and found him guilty of professional misconduct. The committeedetermined that there was a breach of the fiduciary duty that Mr. Fisher owed to his clients and to his firm. The committee noted thatMr.

Fisher had admitted his culpability and cooperated with the law firm and with The Law Society and its investigation including self-reporting a number of incidents which were not first known. It was also noted that Mr. Fisher repaid all the monies and hadvoluntarily withdrawn from the practice of law pending the disposition of the matter. The accused was suspended at that time for aperiod of three months and was the subject of several conditions upon his return to practice and was required to pay significant costs.

The pre-sentence report notes that in 2010 after he withdrew from the practice of law the accused sought the help of a psychologistwho helped him see his negative attributes but was not able to help him change his negative attitude which he had towards himself. Since then the accused has not sought help from any mental health resources but has done his own reading and research into varioustherapy methods. The accused has remarried but his present relationship was impacted significantly by these charges.

The parties separated largely dueto these charges, although they continue to reside in the same house and act as co-parents of their son. His wife describes the accused asan excellent father who is more involved with their son than many fathers. Given that he works nights, she confirms that the accused isvery involved in their son's daily needs, sports and schooling. The accused also maintains contact and a positive relationship with his twodaughters from his first marriage.

Since his disbarment the accused has worked in various labour-related jobs, for one year as a carpenter and more recently as acaretaker at the University of Manitoba. The accused has expressed concern as to whether he would be able to maintain thisemployment should he be sent to jail. He has involved himself in a number of charitable organizations and indicates that he findsvolunteer work helps to occupy his time. It is evident that the accused is proud of some of his volunteer work, including the work doneat his son's school and with the Wheelchair Sport Association.

The pre-sentence report assesses the accused as being a low risk to re-offend. I note as well that he has made full restitution of themisappropriated funds. The application of the principles of sentencing: The principles of sentencing set out in

Section 718 of the Criminal Code are wellrecognized. The accused does not argue in any meaningful way that a jail sentence would be inappropriate but asks the court to considerallowing him to serve that sentence in the community subject to conditions. While Crown counsel acknowledges the accused may beeligible for a conditional sentence pursuant to

Section 742.1 of the Criminal Code, he asserts that the nature of the charges and the factthat the offences were committed by a practicing lawyer the principles of denunciation and deterrence are of paramount importance andwould not be adequately addressed by a conditional sentence. In support of its position, Crown counsel refers to a number of authorities including the decision of R. v. Gottli, (MB KB), 1997 119 Man.

R. (2d) 171 wherein Schulman, J. noted that a lawyer may be eligible for a conditional sentence whererestitution is made and the accused “brings the matter to the light of the authorities before The Law Society audit”. Not unlike thecircumstances in this case, the accused in Gottli forged documents after The Law Society discovered his misconduct. Given the totalityof the circumstances, Schulman, J. concluded that a conditional sentence with a stigma, curtailment of liberty, community service andabsence of parole is insufficient to address the enormity of the offender's conduct.

The authorities are consistent and I agree that principles of denunciation and deterrence are of primary importance when sentencing alawyer on charges of this nature. That is not to say that other principles of sentencing should be ignored. As with any sentencing, eachcase must be considered given the particular circumstances of the offence and the offender. There are a number of aggravating andmitigating factors which must be weighed in determining the quantum of sentence and whether the principles of sentencing can be metwith the imposition of a conditional sentence.

The aggravating factors include the nature of the charges themselves which are extremely serious, but particularly so given that theywere committed by a practicing lawyer. Public confidence in the administration of justice includes public confidence in the reliability oflawyers. Where a lawyer breaches the trust of a client the community's confidence in the system as a whole is eroded. The number of cheques and transactions that made up the totality of the breach of trust is of note. As indicated, there were 17cheques drawn upon the estate over a number of months.

These transactions began within weeks of the accused being retained and theaccused made significant efforts to cover his trail with false letters which were left on the file. As noted, the fraud did not cease withThe Law Society's audit but continued after with the forgery of the will. The involvement of his sister in her capacity as the accounts manager in passing off the letters of authorization, allowing the accusedto cash cheques, is particularly concerning. It demonstrates that the accused was willing to involve unwitting and trusting familymembers in order to carry out his scheme.

The previous disciplinary actions taken by The Law Society of Manitoba are of note. While I know that this does not carry the same weight as a previous criminal conviction, the similarity of the breach of trust is of some note. Further, it appears that The Law Society was prepared to take steps to ensure that the accused had the assistance he needed if he intended to return to the practice of law. Factors in mitigation are as follows: It appears that once he was charged with professional misconduct the accused voluntarily withdrew from practice and cooperated with the investigation.

He admitted his misconduct to The Law Society and has suffered a significant sanction including the ordering of a significant level of costs. He has cooperated with the police investigation including giving a statement to the police. He has made full restitution. He has sought re-employment and is working in an area where he does not have access to finances. He has volunteered his time to the community. He appears to be a hard working and active parent to his son.

He appears to have awareness of the traits in his personality which have contributed to his involvement with The Law Society and to criminal behaviour, although I would hasten to add that much work has to be done in this area. While he has sought help in the past, it appears that the accused needs to look carefully at several ongoing issues in his life and would benefit from professional help in that regard. He has expressed remorse for his actions and he has no criminal record.

The recommendation by the prosecution that the court consider a sentence in a provincial institution is a reasonable one and, as indicated, leaves open the possibility of a conditional sentence. I recognize as well that the length of the sentence imposed may be impacted by a determination of whether that sentence will be served conditionally. It is recognized that the term of a conditional sentence may be longer than that of a sentence served in a provincial institution.

I also recognize the argument made by the accused that he no longer poses a danger to the community given that he no longer practices law and does not have access to trust accounts. He pointed to the delay in these proceedings as evidence that the authorities did not consider him to be a risk. It is certainly true that there has been an unusual amount of delay in prosecuting the accused and that will be a factor which will be of some comment later.

Taking into account the aggravating facts of this case including the length of time, the number of transactions and the continuation of the fraudulent acts after the involvement of The Law Society as well as the previous history of the professional misconduct, I am not satisfied that the principles of denunciation and deterrence can be met with the imposition of a conditional sentence. Having said that, the crafting of an appropriate sentence requires that consideration be given to all facts and sentencing principles.

As noted, there are a number of facts in mitigation for which the accused is entitled to credit including his cooperation with the prosecution, his very early guilty plea and the payment of restitution. As indicated, the delay in this matter is significant and a somewhat unusual factor for the court to take into consideration. These offences date back to 2009 and 2010, and The Law Society investigation concluded with the disbarment of the accused in January of 2012. Despite this, little has been provided in the way of adequate explanation for the delay in the accused not being charged until October of 2014.

This means that the accused has not been able to deal with this matter and put it behind him for many years. It is clear that there has been no delay occasioned by the accused or the complainants. The accused is entitled to have the unusual delay in the proceedings considered as a factor in determining the appropriate sentence.

Under all the circumstances I am satisfied that the calculation of a custodial term should take into account the rehabilitative efforts made by the accused to date as well as his early guilty plea, payment of restitution, his expression of remorse and the unusually protracted nature of these proceedings. Under the circumstances I am satisfied that a sentence of seven months imprisonment is appropriate. I am also satisfied that a term of supervised probation should follow and that will be for a period of two years.

The accused is to keep the peace and be of good behaviour; He is to report immediately upon his release to his probation officer and thereafter as directed to do so by his probation officer; He is to attend, participate and complete an addictions assessment as directed to do so by his probation officer; He is to attend, participate and complete any and all counselling or programming as directed to do so by his probation officer. Are there any other conditions that the Crown is seeking by way of a probation order? MR. MELNYK: No, Your Honour. THE COURT: All right. Thank you. Mr.

Fisher, any comment with respect to the probation order, sir? MR. FISHER: No, Your Honour. THE COURT: All right. Thank you. Given the date of these offences I am going to waive the costs and the surcharge.