R v Giesbrecht, 2016 MBCA 34

Citation: R v Giesbrecht, 2016 MBCA 34 Date: 20160318 Docket: AR15-30-08453 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : ) B. A. Beresh, Q.C. HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. R.

Savage ) for the Respondent - and - ) ) Appeal heard and HARVEY JOHN GIESBRECHT ) Decision pronounced: ) March 1, 2016 (Accused) Appellant ) ) Written reasons: ) March 18, 2016 BURNETT JA (for the Court): [ 1 ] The accused appeals the sentence imposed following a joint sentence recommendation (JSR) that was not accepted by the sentencing judge. Leave to appeal sentence and judicial interim release were previously granted by M. A. Monnin JA ( 2015 MBCA 88 ). [ 2 ] The appeal was allowed at the conclusion of the hearing on March 1, 2016, with brief reasons to follow.

These are those reasons. [ 3 ] The accused owned a funeral home in Beausejour, Manitoba. Between October 2003 and July 2009, the accused entered into contracts and received payments for prearranged funerals. The monies received by the accused were not placed into trust accounts in accordance with The Prearranged Funeral Services Act , CCSM c F200, but were used by him to pay for personal living expenses and funeral arrangements for other individuals (not the 21 victims).

The total amount defrauded was $85,567.72. [ 4 ] The accused entered guilty pleas to 14 charges of fraud under $5,000 and 7 charges of fraud over $5,000. [ 5 ] Crown and defence counsel jointly recommended a jail sentence of two years less a day to be served conditionally in the community, followed by three years of supervised probation (which addressed the accused’s ongoing obligation to pay restitution), and a “freestanding” order of restitution.

The sentencing judge expressed concern with the JSR and provided both the Crown and the accused an opportunity to submit case law and to make further submissions. [ 6 ] Ultimately, the sentencing judge rejected the JSR and sentenced the accused to nine months of incarceration followed by two years of supervised probation.

The terms of the probation order included: repayment of restitution in the sum of $500 a month when employed; a requirement to report to Probation Services for any counselling that it might direct; a requirement to notify all prospective employers about his conviction; and an order of restitution in favour of the victims. [ 7 ] Shortly before the hearing of the appeal, the accused filed a motion to introduce fresh evidence. Counsel agreed that the Court could review the proposed evidence, and, following submissions, a decision on the fresh evidence was reserved, and the appeal was argued.

In our view, the appeal can be determined without considering the fresh evidence. [ 8 ] The accused argues that the sentencing judge erred in refusing an adjournment request (made four days before the second sentencing hearing) and that he erred in rejecting the JSR. [ 9 ] We are not at all persuaded that the sentencing judge erred when he refused the adjournment. The initial request for

an adjournment was denied on the basis that the accused’s counsel (not counsel on this appeal) was still on the record. The matter wasrevisited on the second sentencing date, and the accused confirmed that he wanted counsel of record “to continue to represent me herethis afternoon.” In these circumstances, it can hardly be said that the sentencing judge failed to exercise his discretion in a judicial wayor that there was a miscarriage of justice. [10] The failure to accept the JSR is more problematic.

There is considerable authority from this Court and others that asentencing judge should depart from a joint submission only when there are cogent reasons for doing so (see, for example, R v Sharpe(KD), 2009 MBCA 50 at para 19, 240 ManR (2d) 52, quoting R v Sinclair (EJ), 2004 MBCA 48, 184 ManR (2d) 1).

Here thesentencing judge appears to have rejected the JSR on the basis that it was not the product of a true plea bargain because “the quid proquo is lacking . . . as [the accused] was always intending to plead guilty” and on the basis that the proposed sentence was not“appropriate for these crimes.” [11] In our view, the sentencing judge erred when he restricted his analysis to the accused’s intentions and when he rejectedthe recommended sentence. [12] Defence counsel did tell the sentencing judge that there were a number of difficulties and exigencies with respect tosome of the charges but that it was never the accused’s position that he would challenge those charges.

However counsel also said that,but for the JSR, the accused would not have entered guilty pleas. [13] Significantly, both Crown and defence counsel made it clear in their sentencing submissions that the Crown anticipateddifficulties in prosecuting its case.

The Crown told the sentencing judge that it had no sworn video statements from any of the victims,that 3 of the 21 victims had passed away, that it was experiencing some difficulty contacting and obtaining cooperation from theremaining victims and that problems had arisen on the part of the police and the Crown in furthering both the investigation and theprosecution.

In fact, Crown counsel said, “The issue really becomes which counts, how many counts the Crown could make out becauseof the passage of time and the deterioration of the case as a result of the passage of time.” [14] Clearly the quid pro quo in this case included the uncertainty of conviction in light of the anticipated difficulties in theCrown’s case as well as the opportunity to avoid further delay and cost.

We would also observe that the JSR was negotiated byexperienced and competent counsel and that the JSR contemplated an apparently viable plan for restitution (as well as an immediatepayment of $4,000). [15] For these reasons, we are of the view that the sentencing judge erred when he concluded that the JSR was not theproduct of a true plea bargain and, in particular, that the quid pro quo was lacking. [16] We are also of the view that the sentencing judge erred when he concluded that the sentence contemplated by the JSRwas not appropriate.

It is well established that if the proposed sentence reflected in a true plea bargain falls within the range of sentenceestablished by precedent, it should not be rejected by a sentencing judge unless there are cogent reasons for doing so.

Here thesentencing judge acknowledged that a conditional sentence of two years less a day fell within the range of acceptable sentences, but hesaid that he wanted “to send this guy to jail.” In so doing, he erred. [17] In Sinclair, Steel JA made it clear that (at para 17): Reasons for departing from the proposed sentence must be more than an opinion on the part of the sentencing judge that the sentencewould not be enough. The fact that the crime committed could reasonably attract a greater sentence is not alone reason for departingfrom the proposed sentence.

And while a conditional sentence may fall at the lower end of the range, a more lenient sentence may well be appropriate where anaccused forgoes his/her right to trial and enters a guilty plea, particularly where the Crown’s case has some flaws or weaknesses (seeSinclair at para 13). [18] The sentencing judge concluded that an institutional sentence was required to send a message of denunciation anddeterrence. We disagree. The JSR contemplated a jail sentence of two years less a day to be served conditionally in the community, withan absolute curfew and significant monthly payments for restitution.

As Freedman JA observed in R v Lamirande (D), 2006 MBCA 71,205 ManR (2d) 245 (at para 28): It is, by this point, trite to observe that the courts in this country have explicitly recognized that an appropriately crafted conditionalsentence may well satisfy the principles of both denunciation and deterrence (see R. v. Proulx (J.K.D.), 2000 SCC 5 , [2000] 1S.C.R. 61; 249 N.R. 201; 142 Man.R. (2d) 161; 212 W.A.C. 161; 2000 SCC 5).

There may, of course, be cases where the nature of theoffence or the circumstances of the offender require a court to send an offender to jail in order properly and effectively to expresssociety’s condemnation, or to achieve the required deterrent effect. There is nothing on the facts here that suggests that in this case theseobjectives, which could be accomplished by a jail sentence, could not also be achieved by a suitably restrictive conditional sentence. Incarceration is not necessary to realize those objectives, having regard to the stringency of the conditions that will be imposed.

[ 19 ] To summarize, the JSR was the product of a true plea bargain, there was a quid pro quo and the sentence contemplated by the JSR was within the sentencing range, and therefore not unfit. [ 20 ] In these circumstances, the appeal must be allowed. The sentence imposed by the sentencing judge is replaced with a conditional sentence of 2 years less a day, with credit for time served (42 days) on a 1:1 basis. As we were told at the appeal hearing that the accused has paid full restitution, we decline to order the probationary period contemplated by the JSR. [ 21 ] In addition to the statutory conditions set out in

section 742.3(1) of the Criminal Code , the following conditions are imposed: 1. The accused is to report to his supervisor within 72 hours. 2. The accused will reside at the address provided by his counsel to this Court or, with the approval of his supervisor, at another address in the Province of Alberta. 3. The accused shall be under house arrest and bound by an absolute curfew for the duration of the sentence, subject only to the following exceptions: (

a) time attending employment and related activities, and the necessary travel time to and from; (

b) time attending programs and treatment as directed by his supervisor, and the necessary travel to and from; (

c) time attending to necessary medical, dental or legal appointments, as may be pre-approved by his supervisor, or attending to personal medical emergencies, and the necessary travel time to and from; (

d) three consecutive hours once each week, as pre-approved by his supervisor, for the purpose of attending to necessities of living; and (

e) such other occasions or circumstances as may be approved by his supervisor, including time performing community service and time attending such meetings with his supervisor as may be required by his supervisor. 4. The accused shall perform 200 hours of community service within 15 months of today’s date (i.e., March 1, 2016). 5. The accused shall answer the door or telephone in response to authorities checking his compliance with house arrest. 6. The accused shall pay a victim surcharge of $200 within 7 days. JA JA JA