R. v. Mahovlich Date:, 2011 BCPC 378

Citation: R. v. Mahovlich Date: 20111004 2011 BCPC 0378 File No: 85952-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK CLAYTON MAHOVLICH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: J. Bird Appearing on their own behalf: The Accused, M.C. Mahovlich Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 4, 2011 Date of Judgment: October 4, 2011 [ 1 ] THE COURT : The accused, Mark Mahovlich, is charged with an offence under s. 69(2) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 with particular reference to subsections (

a) and (e). This provision reads as follows: 69(2) A person commits an offence if the person, in (

a) applying for a driver's licence or an identification card... does any of the following: (

e) makes a false or misleading statement... [ 2 ] The legislation in s. 69(4) in terms of a penalty provides that a person who contravenes subsection (2) is liable to a fine of not less than $400.00 and not more than $20,000 or to imprisonment for not more than six months or to both. [ 3 ] The facts of this case as outlined by Crown counsel are briefly as follows. [ 4 ] On February 5th, 2009, I am told and I accept that the accused's driver's licence was cancelled. Approximately a year later, on February 8th, 2010, the accused before the court attended at an ICBC office or motor vehicle office of some description and applied to

obtain a British Columbia identity card in the name of his brother, Michael. Michael, at the time, and according to a pre-sentence report that I shall come to, appears to have been living in the United States of America where he has lived for some approximately 20 years.

In any event, for purposes of this application, the accused before the court provided the representatives with two pieces of identification, neither of which had a photograph, being a birth certificate and Care card in the name of his brother Michael. [ 5 ] Had the application been successful, the result would have been that the accused before the court, Mark Mahovlich, would have ended up with a piece of identification and, I think it must be said, a very important piece of identification, that would have had his photograph on it but would have been in his brother Michael's name. [ 6 ] According to Crown's submission, it could have been used as a form of gateway identification to obtain quite a number of other things, such as driver's licences, possibly credit cards, possibly passports, and could likewise have been used, for example, for purposes of identifying the holder for sales on Craigslist and the like. [ 7 ] Apparently in the application process, the Insurance Corporation uses facial identity software, and having taken a photograph of the accused before the court, and by using this software, were able to find that the image of the person, namely Mark, was, in fact, not the image of Michael.

I have understood Crown to explain that very early on into the application process this problem was drawn to the attention of the applicant, the accused before the court, Mark Mahovlich, and in the result, no B.C. identification card was issued. [ 8 ] I am told that, early on, the accused before the court admitted to the Insurance Corporation of British Columbia that what he had done was wrong and may well have provided an explanation to them, which I shall come to as it is set out in the pre-sentence report.

I take it that he would have admitted to ICBC, frankly, having been caught red-handed that he had indeed made a false statement to them. In this case the false statement under s. 69(2) (

e) is the accused representing to ICBC that he was Michael Mahovlich. [ 9 ] Crown points out in its submission that identity theft is a matter of growing concern in Canada and, as well, that the Insurance Corporation of British Columbia ought not to be essentially victimized and placed in the position of issuing false identification cards to citizens in this province. [ 10 ] To put the matter another way, Crown says ICBC is not a place where citizens ought to go to receive false identification, and the sentence that I administer in this case should be one that makes it clear to all citizens in the Province of British Columbia that this is not to be the case. [ 11 ] As far as the accused before the court is concerned, his background is set out in the pre-sentence report that I have now studied quite carefully.

Unfortunately, this report may not be quite as complete as it might otherwise have been because I have noted that in several places the accused before the court advised the author of the report, namely the probation officer, Violet May, that he did not wish that anyone be contacted in relation to the report. Somehow apparently his brother Michael was contacted but that did not appear to be something that the accused necessarily wanted to happen. The accused did indicate to Ms. May that he was not close to his brothers or father at the time.

He also indicated to the author of the report that he did not want any collaterals contacted with respect to the report, including, for example, persons who he might have worked with as a carpenter in construction or possibly even in the work that he has done apparently for 12 or 13 years as a referee. [ 12 ] I note the report indicates that the accused indicated that his father, who is unnamed, had been supporting him. He is said to be a millionaire by reason of investments, and the accused before the court owes the father some money by reason of his support that has been provided.

As well, the accused has admitted to some history of drug use, historically cocaine and apparently currently, according to the report, admits he still indulges in marihuana smoking. [ 13 ] The report also as I have indicated does note that the author did contact Michael Mahovlich and it states as follows: He stated that he had been living in the United States for over 20 years and advised that his name was often spelled M-a-h-o-v-l-i-c. [ 14 ] It goes on to state: He informs that his brother Mark has been using his identity without his permission for at least 25 years.

He claims that his brother Mark has drained his bank account year after year and likely destroyed his credit in Canada. He reports that in the 1990s he contacted ICBC and made them aware of the situation and asked them to put a freeze on his name as he was not living in Canada.

He believes that his brother's involvement with drugs is the primary reason for his brother's behaviour. [ 15 ] When the accused made submissions to the court, he indicated that he doubted that his brother would have said that, but, in answer to a question that I put to him, indicated that he had last spoken with his brother approximately two months ago and that was, of course, before this report was finalized. [ 16 ] The accused also admitted, as I understood it, that he had, at least on one occasion, used his brother's driving licence without the permission of the brother Michael. [ 17 ] The accused has a record commencing in 1986, with the last matter on the record, as Crown points out, being an offence for which he either pleaded guilty or was found guilty on February 11th, 2000, being a theft under $5,000 matter, at which time he was placed on a conditional sentence order for four months and, as well, given nine months probation.

The record sets out approximately nine to 11 various offences in the period of time from 1986 to the year 2000. [ 18 ] Crown properly points out that this record is somewhat dated, but it is nonetheless a record, and of concern, one of the matters back in 1988 was a conviction for uttering a forged document. As well, I think it can be said with respect to certain of the theft matters there was an element of dishonesty involved as there was in the case at bar. [ 19 ] The report further states under "Attitude and Understanding Regarding the Offence" as follows:

Mark states that he committed the offence because he was in fear for his life and was going to rent an apartment in his brother's name. He states he was under the mistaken impression that someone was trying to kill him by running him over with a truck and that he needed a place to hide out where no one would find him. He relates that he felt like the police were working against him and took a year to help. He reports that he has pissed off a lot of people in the past four years including WCB, City of Coquitlam and Port Moody Police Department.

He states that he has never used his brother's ID before and that drugs were not a factor in the offence. He felt he had no one to turn to and did not want to stress out his father who is currently in remission from prostate cancer. Mark admits he did do something wrong but feels justified in his actions. He believes he is a victim and should not be punished. He states that he did what he had to do and has no regrets. [ 20 ] I make a number of comments. Firstly, the statement he appears to have made to Ms.

May that he had never used his brother's ID before is arguably somewhat inaccurate in light of his comment that he had used his brother's licence, as I understood it, without his brother's consent. [ 21 ] As well, the accused I think has expressed some measure of remorse in his admission to Ms.

May that he had done something wrong but the level of remorse frankly is somewhat weakened, if I may put it that way, by the following statement that he feels justified in his actions and further on that he has no regrets for what he has done. [ 22 ] Ordinarily when an accused person pleads guilty to a matter, the court generally accepts that that is an indication of some remorse. In the case at bar, any element of remorse that I might otherwise find in his guilty plea is to be tempered I think with these remarks that I have alluded to that are found in the "Attitude and Understanding Regarding the Offence"

section in this report. [ 23 ] Crown, in its submission, makes reference to the decision of my brother Judge McGee in R. v. Brooks , an unreported decision of January 14th, 2011. I do not intend to refer to this case at any length. I have read it, and the facts are quite different. There, the accused before the court was a 54-year-old father without criminal record, who, when all is said and done, seemed to be helping an almost 19- year-old daughter obtain some false ID so that she could go to bars where the legal drinking age was 19 and show it and be admitted.

His Honour Judge McGee found that the primary sentencing principle that was to be taken into account by a judge sentencing an individual for a matter such as brings Mr. Mahovlich before the court is the need for general deterrence. He found as a fact, and I am prepared to make a similar finding, that this defendant was unlikely to re-offend and said in that context that the paramount concern of the court was general deterrence.

I accept that that is an accurate statement of the principles that should govern me in sentencing the accused before me. [ 24 ] I do accept Crown's submission that ICBC cannot, and must not, be used by members of the public to obtain false identification. In sentencing this accused before me, I must send a clear as possible message to members of our community, being citizens of the Province of British Columbia, that if they do the kind of thing that the accused before me has done, there will be serious consequences.

Certainly the seriousness with which the provincial legislators have taken this offence is shown in the fact that the maximum sentence that is available is not only a fine of $20,000 but a period of imprisonment for not more than six months. Both those things can be done. [ 25 ] In the case before me, the accused indicated that he was on disability at this time.

He said that he has been receiving for the last year or so the sum of $1,000 per month, however is able to make a further $500.00 per month working part-time, but said that he seldom made that amount, the indication being that he is able to do some part-time work but may not make $500.00 at this time. [ 26 ] He has provided no medical information to the court with respect to the nature and extent of his disability which is said to have a number of sources including sleep disorders called apnea, some depression related thereto, problems with a degenerative disc in his back, possibly some difficulties following facial reconstructive surgery, and indeed other matters. [ 27 ] He has indicated that he currently lives with three other persons all on disability in a basement suite.

Interestingly, he explained, in answer to several questions from the court, that when he came to reside at this address, he was not required to show photo identification but did say that before February 8th, 2010 he had applied for an apartment in his name for the reasons set out in the pre- sentence report and was turned down on each occasion because he did not have photo identification. [ 28 ] It is of concern to me that the accused was not able to approach his father to receive some help on something as simple as an apartment rental.

I see the reasons set out for why this accused says he did what he did and I am not able based on the information that I have been given to accept that it is truthful or not. It is there.

The report sets out what he told the author of the pre-sentence report and basically what he has said to me this morning. [ 29 ] At the end of the day, taking into account the accused's circumstances, as well, recalling that he is able to use marihuana at this point in time and has the resources to do that, and most importantly the need to send as I have said a very clear message to members of the public, and distinguishing the case before me from Brooks , supra , where Mr.

Brooks had no criminal record, I am of the view that a fit and just sentence in this matter would be a fine of $1,750, and that is the fine that I levy. [ 30 ] Do you need some time to pay this fine? [SUBMISSIONS BY THE ACCUSED] [ 31 ] THE COURT: Mr. Mahovlich, this is not the part of this hearing this morning where you and I enter into a dialogue. I asked you a simple question, sir. [ 32 ] THE ACCUSED: It'll take me years to pay that. Years. [ 33 ] THE COURT: All right. Well, I will give you a year, all right? I will give you until October 3rd, 2012 to pay the fine. All right? Thank you.

This matter is concluded. [ORAL REASONS FOR SENTENCE CONCLUED]