R. v. Sanborn Date:, 2011 BCPC 129

Citation: R. v. Sanborn Date: 20110512 2011 BCPC 0129 File No: 57959-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HUGH GRANT SANBORN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DICKEY Counsel for the Crown: S.D. Cooke Counsel for the Defendant: A.M. Willms Place of Hearing: Chilliwack, B.C. Date of Hearing: March 3, 2011 Date of Judgment: May 12, 2011 [ 1 ] Hugh Grant Sanborn has plead guilty to a charge that on February 20, 2007, he used a letter apparently from the Provincial Agricultural Land Commission, as if it were genuine, knowing that this letter was forged, contrary to section 368 (1) (

a) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 [the Code ]. The Crown seeks a fine or a suspended sentence and opposes a discharge. Mr. Sanborn seeks a conditional discharge. Issue [ 2 ] The issue on this sentencing is whether a conditional discharge is appropriate. Background (

a) Circumstances of Offence [ 3 ] The Crown and defence have filed an Agreed Statement of Facts. Mr. Sanborn was, and continues to be, a consultant specializing in assisting clients with applications to the Agricultural Land Commission [ALC]. The Goertzen’s owned a parcel of land and were interested in selling a portion of the parcel to their son and retaining the remaining portion on which their home was located. This required an application to the ALC for what is known as a “ homesite severance”.

[ 4 ] The Goertzen’s hired Mr. Sanborn in approximately September 2005 to act for them with respect to their application for a homesite severance to the ALC. Mr. Sanborn promised to submit the application to the city of Chilliwack (the first part of the process) within four months. [ 5 ] Over the next year, the Goertzen’s made repeated requests to Mr. Sanborn for an update on what was occurring with their application. Mr.

Sanborn, in August of 2006, apologized to the Goertzens for the lack of communication and recommended that the Goertzen’s delay their application for the appointment of new commission members to the ALC in September 2006. [ 6 ] On September 27, 2006, Mr. Sanborn advised the Goertzen’s that the application package had gone to the ALC. On October 30, 2006, Mr. Sanborn advised the Goertzen’s that he expected to submit their subdivision application in the third week of November 2006. In fact, the Goertzen application had neither gone to the City of Chilliwack nor to the ALC. [ 7 ] On February 13, 2007, Mr.

Sanborn advised the Goertzen’s that the ALC had given him hearing dates the following week for client applications that had been submitted in August and September. He advised that he would seek a firm date from the ALC regarding their application. [ 8 ] On February 20, 2007, Mr. Sanborn sent to the Goertzen’s what purported to be a copy of their application to the ALC. Included in these materials was a fifteen-page document purporting to be the application package to subdivide the Goertzen property.

Also included in this material was a letter on ALC letterhead dated October 24, 2006, indicating that the Commission was in receipt of the application. This letter from the Commission was false. It is this forged document that is the substance of the offence. As of February 20, 2007, neither the City of Chilliwack nor the ALC had received an application on behalf of the Goertzen's . [ 9 ] On approximately April 26, 2007, Mr. Sanborn submitted the Goertzen application to the City of Chilliwack, the first stage in the application process.

The application was 15 pages in length and included a background, photographs, the completed application form, a copy of the Land Title Search, a map, and sketches detailing the proposed improvements. [ 10 ] In June of 2007, the Goertzen’s became aware that there was no record of their application having been received by the ALC. [ 11 ] On March 1, 2007, Mr. Sanborn sent an invoice to the Goertzen's for the sum of $1763.62 for “services rendered regarding the application.” This account was paid on May 8, 2007. The application fee of $600.00 paid to the City of Chilliwack was refunded to the Goertzen's . (

b) Personal Circumstances [ 12 ] Mr. Sanborn is 52 years of age and has no criminal record. From 1984 to 1989 he worked in the Regional District of Chilliwack. In 1989, he started work with the City of Chilliwack becoming the Director of Development. Mr. Sanborn then opened his own consulting firm in 2000 that continues in business today specializing in assisting clients with applications before the ALC. [ 13 ] Mr.

Sanborn volunteered his time on a number of different boards including the elected Chair of the Cultus Lake Park Board for two terms between the years 2002 to 2008, Rotary Club from 2002 to date, Tourism Chilliwack between 2004 and 2006, Community Futures between 2002 and 2004, and the YMCA between 2002 and 2007. [ 14 ] Mr. Sanborn has acknowledged his guilt in this matter by his guilty plea and appears remorseful for what he has done. He would like to apologize to the Goertzen’s . [ 15 ] Mr. Sanborn committed this offence at a time when he was overworked with his business and his elected and volunteer work.

This is an explanation for his actions but not a defence. [ 16 ] I take issue with the submission of defence counsel that the actions of Mr. Sanborn in forging the letter is something that professionals, including lawyers, sometimes do to placate their clients. The actions of Mr. Sanborn were illegal and an offence under the Criminal Code of Canada . To suggest that this is a practice of professionals is not supported by any evidence and is an inappropriate attempt to minimize the actions of Mr. Sanborn.

His actions go far beyond defence’s description of the uttering of this forged document as “ill advised, inappropriate, and showing poor judgment”; the use of this forged document was a criminal offence. [ 17 ] Mr. Sanborn’s reputation within the community, both professionally and personally, will clearly have been tarnished by these charges. He is well known within the community and this matter has had some public scrutiny. His business has declined, although this may be related as much to the downturn in the economy over the past couple of years. [ 18 ] Mr.

Sanborn has now decreased his workload from his business and volunteer work to spend more time with his wife. He has recreational property in Washington State that he visits most weekends. He is concerned that any criminal record may affect his ability to travel to the U.S. [ 19 ] I have been provided with 25 letters of support on behalf of Mr. Sanborn from persons who have known him both professionally and personally. A review of these letters clearly indicates that he is highly regarded both professionally and personally.

Furthermore, his actions that are the subject matter of this offence are dramatically out of character. His honesty and integrity has been referred to by many of the authors of the letters provided. Law [ 20 ] Section 730(1) of the Code sets out a number of pre-conditions before a court can impose a conditional discharge. The offence of using a forged document satisfies these conditions and, therefore, a conditional discharge is available to Mr.

Sanborn if the court considers “… it to be in the best interests of the accused and not contrary to the public interest.” [ 21 ] I have read the written submissions of both counsel and the attached cases. The Crown relies upon the following decisions:

R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559 (C.A.); R. v. Sanchez-Pino, (ON CA), [1973] O.J. No. 1903 (Ont. C.A.) [Sanchez-Pino]; R. v. Zinkhofer, 2000 ABPC 16 [Zinkhofer]; R. v. Cabral (October 31, 2000), Vancouver Registry No. 103740-1 (B.C. Prov. Ct.) [Cabral]; R. v. Durfy, (Ont. C.A.); R. v. Durfy, 2001 CarswellOnt 4884 (S.C.J.) [Durfy]; R. v. Hupang, 2008 BCCA 4 [Hupang]; [22] The defence relies upon the following decisions: R. v. Carroll, (C.A.); R. v. Eves, 2002 BCPC 449; R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559 (C.A.); [Fallofield]; R. v. Foianesi, 2011 MBCA 33; R. v.

Perreault, 2010 BCPC 260 R. v. Priest, (Ont. C.A.); R. v. Reyes-Borgwardt, 2010 BCSC 1594; R. v. Stuart, 2006 ABPC 257; R. v. Sunczyk, 2009 BCSC 101; R. v. Zhang, 2008 BCSC 674; [23] The leading case on conditional discharges is Fallofield. The court drew a number of conclusions with respect to the applicationof discharges.

On the issue of when a discharge is in the best interests of an accused the court found that “Generally, the first conditionwould presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter aconviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against himmay have significant adverse repercussions” (at para. 21(5)). [24] On the issue of when a conditional discharge is not contrary to the public interest, the court in Fallofield stated that “… thepublic interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the dischargeprovisions” (at para. 21(6)). [25] In the cases put forward by the Crown I note the following. [26] The court in Sanchez-Pino, held that the trial court has a wide, albeit judicial, discretion in determining whether a conditionaldischarge is appropriate (para. 19).

The more serious the offence, however, “… the less likely it will appear that an absolute discharge, oreven a conditional one, is ‘not contrary to public interest’” (para. 18). [27] In Zinkhofer, the offender pled guilty to six charges relating to three incidents involving the forging of documents and theuttering of those same documents. The charges related to incidents that occurred over a four-year period. It was not a singular event asthe case at bar. [28] In Cabral, it was the client of a friend of the offender who benefitted from the offender forging and then using those forgeddocuments.

Although it is not clear from the decision it appears that this allowed the client’s friend to obtain a mortgage which I considerto be a significantly greater benefit than Mr. Sanborn received in the case before me. The offender in Cabral also presumably received amortgage broker fee through the fraud and forgery. [29] In Durfy, the offender was a real estate agent who entered into a listing agreement with a client attempting to sell a piece ofproperty. The listing agreement expired.

The offender then fraudulently prepared an extension by photocopying signatures from thelisting agreement and imposing them onto the extension. The court noted that this fraud was persistently and emphatically maintaineduntil mid cross-examination of the offender, and was done in an attempt to steal a real estate commission from the complainant (para. 27,(Ont. S.C.)).

I find that the gravity of the offence and the degree of responsibility of the offender in Durfy to be much higher than thematter before me. [30] In Hupang, the offender attached false documents to his application to Immigration Canada to renew his expired study permitand to apply for temporary resident status. The Court found that this type of sentence was serious because it arises in a self-reportingsystem which is dependant on the honesty of applicants to work effectively.

I find that the need for denunciation and deterrence inHupang was significantly greater than in the case before me. [31] In the cases put forward by the defence, I note that the objectives of general deterrence do not preclude a conditional discharge(Zhang, at para. 17; Carroll, at para. 12).

[ 32 ] The other cases put forward by the defence stress the principle proposed in Fallofield that deterrence of others, “... while it must be given due weight, does not preclude the judicious use of the discharge provisions” (at para . 21(6)). The defence cases set out a variety of circumstances in which conditional discharges have been considered appropriate.

I note from both the Crown and defence cases that the greater the benefit received by the offender, or a person known to the offender, the more aggravating the circumstance, the greater the need for deterrence, and the less likely a court will impose a discharge. Analysis [ 33 ] In assessing whether a discharge is in the best interests of the accused, I find that the character letters indicate that Mr. Sanborn is a person of good character and is without prior conviction.

I also find that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him: I am satisfied that Mr. Sanborn will have been deterred from future offences as a result of the consequences of this matter including his tarnished reputation both personally and socially. I also find that it is not necessary to enter a conviction against Mr. Sanborn for the purposes of rehabilitation: he has shown remorse by his guilty plea and his actions were dramatically out of character.

I also find that a conviction would potentially have significant adverse repercussions to Mr. Sanborn both professionally through loss of business, and personally through the restriction of his ability to travel to Washington State. I conclude, therefore, that a discharge is in the best interests of the offender. [ 34 ] The second condition that must be addressed is whether a conditional discharge is contrary to the public interest. The public has an interest in deterring others from committing similar offences. I find that the benefit obtained by Mr.

Sanborn in committing this offence was to placate his clients allowing him additional time to complete the work he had agreed to provide. Mr. Sanborn’s only benefit from the use of this forged document was to retain his clients. I find the benefit to Mr. Sanborn from this illegal action was less serious than the facts set out in the cases provided to me by the Crown. The public will be aware that the criminal action of Mr. Sanborn has resulted in him being charged with this offence and consequently, the tarnishing of both his professional and personal reputation. Mr.

Sanborn was well known within the community of Chilliwack, and this charge has attracted the attention of the public and the media. This loss of reputation, and potential loss of income, should satisfy the principle of deterrence. I conclude, therefore, that a discharge satisfies the sentencing principle of general deterrence and is not contrary to the public interest.

Conclusion [ 35 ] In conclusion, I sentence the offender to a conditional discharge and place him on a term of probation of one year. [ 36 ] The terms of your probation will be as follows: 1) You shall keep the peace and be of good behavior ; 2) You shall appear before the court when required to do so by the court; 3) You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4) You shall report to a probation officer by 4:00 p.m. today, at the probation office here in Chilliwack and thereafter, when required by your probation officer and in the manner directed by your probation officer; 5) You shall perform 30 hours of community work service by no later than six months from the date of this order; 6) You shall provide a written letter of apology to the Goertzen’s to the satisfaction of your probation officer within one month of this order. [ 37 ] There will be a victim fine surcharge. ___________________________ R.C.

Dickey Provincial Court Judge