Docket: CACR 2320 Her Majesty the Queen Appellant - v. -, 2013 SKCA 135

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 135 Date: 2013-12-13 Between: Docket: CACR 2320 Her Majesty the Queen Appellant - and - Diana Bethke Respondent Coram: Cameron, Caldwell, and Whitmore JJ.A. Counsel: Beverly Klatt for the appellant Kerry R. Chow for the respondent

Appeal: From: Provincial Court Heard: November 6, 2013 Disposition: Appeal Allowed Written Reasons: December 12, 2013 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr Justice Whitmore CAMERON J.A. I . INTRODUCTION [ 1 ] Diana Bethke, a 56 year-old resident of Moose Jaw, pled guilty in Provincial Court to defrauding the Moose Jaw Local of the Canadian Union of Public Employees of $178,320.58 over a span of five years.

She was then sentenced to a term of imprisonment of two years less a day, to be served in the community under a number of conditions, including the condition she be placed on electronic monitoring for the first eight months. [ 2 ] At that, the Attorney General filed an application for leave to appeal, accompanied by a notice of appeal alleging that the sentence was imposed in error and is demonstrably unfit. The notice of appeal alleges that the sentencing judge failed to give adequate effect to: (

i) the fundamental principle of sentencing, namely that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; (ii) the further principle of sentencing that a sentence should be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances; and (iii) the sentencing objectives of denunciation and deterrence, especially the objective of deterring others from committing like crimes.

In the result, the Attorney General asked that the sentence be set aside in favour of a term of incarceration of 15 months. [ 3 ] In the circumstances, we granted the Attorney General leave to appeal and have decided, for the reasons that follow, to allow the appeal. II. THE CIRCUMSTANCES (

i) The circumstances surrounding the commission of the offence [ 4 ] Ms. Bethke committed the offence while she was the secretary-treasurer of the Moose Jaw Local of the Canadian Union of Public Employees, which is commonly known as CUPE. This is a relatively small Local representing a number of employees resident in or near Moose Jaw. They include employees of the City of Moose Jaw, clerical employees of the Moose Jaw City Police Service, and employees of each of the Palliser Regional Library and the Moose Jaw Art Gallery. Ms.

Bethke, who was a long-term employee of the City, occupied the office of treasurer of the Local for approximately ten years. As such, she was entrusted with handling the money realized from union dues. [ 5 ] She enjoyed the full confidence of the executive and other officers of the Local in the discharge of her duties as treasurer; so much so that she was left in possession from time to time of blank cheques, signed by the president of the Local, to pay various expenses.

These included the honoraria she regularly received from the Local for work she did on its behalf, as well as the expenses she incurred from time-to-time in connection with that work. [ 6 ] Mid-way through her tenure as the treasurer of the Local, Ms. Bethke began to falsify cheques payable to herself. This began in October of 2005 and continued over the next several years. In some instances she wrote cheques payable to herself in payment of the honoraria, but inflated the amount. In other instances she wrote cheques payable to herself in reimbursement of expenses for which she had already been reimbursed.

In still other instances—and there were many of these—she wrote cheques payable to herself from out of funds earmarked for the provision of medical and dental benefits to members of the Local. The amounts varied from $1,985.00 on the first occasion to $3,730.00 on the last. In all, they added up to $178,320.58 over the five year period from October 12, 2005 to December 24, 2010.

[ 7 ] Her fraud came to light after the national office of CUPE began inquiring into why the Moose Jaw Local was behind in remitting the union dues it was collecting on behalf of CUPE. Its inquiries led the national office to consider taking control of the Local’s day-to- day operations. This prompted the Local, in late 2010, to elect a whole new executive which, in turn, resulted in the replacement of Ms. Bethke as treasurer. [ 8 ] On taking office in early 2011, the new executive learned that the Local owed CUPE $104,000 but had only $23,000 in its bank account. Ms.

Bethke was then asked to produce the financial records but refused to do so. Working independently of her, the executive discovered that a number of cheques had been made out to her for payments of one kind or another to which she was not entitled. The police were then called in. They obtained a production order giving them access to her personal banking and credit card records. Armed with this information, the police were able to confirm the existence and magnitude of her fraud. [ 9 ] She had written 60 false cheques to herself over the five year period from October of 2005 to December of 2010.

Typically, the cheques were issued and cashed once a month, and ranged in amount from a low of $1,500.00 to a high of $3,900.00. (ii) The circumstances personal to Ms. Bethke [ 10 ] Ms. Bethke grew up on a family farm near the Town of Mossbank, obtained a grade twelve education, and then attended the Saskatchewan Technical Institute for two years, where she earned a diploma in office administration. Shortly afterwards she was hired by the City of Moose Jaw and continued in its employ during the ensuing years. [ 11 ] She is a first time offender who committed the fraud when she was between the ages of 48 and 53.

She was then in a stable, long- term relationship with a man to whom she was engaged. The engagement was later called off, after her offence came to light, but the two remained close to one another. They had no children of their own, but in time Ms. Bethke had become the main support for her mother, who resides in a nursing home in Moose Jaw and suffers from congestive heart failure. Her father committed suicide when she was aged 21. [ 12 ] Ms. Bethke suffers from Rheumatoid Arthritis and Fibromyalgia, and is currently on anti-depressants.

She is being seen from time to time by a psychiatrist, and is on long-term disability leave from her employment with the City of Moose Jaw. She has never been addicted to alcohol, drugs, gambling, or the like, but was in the habit of spending beyond her means. III. THE DECISION UNDER APPEAL [ 13 ] The sentencing judge’s written reasons for imposing the sentence under appeal disclose that she was conversant with the circumstances of the case, and cognizant, too, of the framework of principle governing the imposition of sentence. The framework includes the requirements of

section 742.1 of the Criminal Code pertaining to the imposition of a conditional sentence, and the import of this

section as explained in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61. [ 14 ] More specifically, the sentencing judge was cognizant of the requirement that a conditional sentence must be consistent with the fundamental principle of sentencing set forth in

section 718.1 of the Criminal Code , namely that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. She was also cognizant of the further principles of sentencing set out in

section 718.2, including the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In addition she was alive to the objectives of sentencing mentioned in

section 718, including denunciation and deterrence. [ 15 ] Mindful of all of this, she concluded that a conditional sentence was not inconsistent with the gravity of the offence or the degree of Ms. Bethke’s responsibility in committing the offence.

She also concluded that a conditional sentence would serve to adequately meet the objectives of denunciation and deterrence, and would not run afoul of the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 16 ] The prosecutor had contended otherwise, citing several cases in which this and other appellate courts set aside conditional sentences in like circumstances, and substituted terms of incarceration.

The terms ranged, in the case of comparatively large scale frauds by persons in positions of trust, from 12 to 36 months depending on the particular circumstances. The sentencing judge took note of some of these cases, along with others in which conditional sentences were either imposed in the lower courts or not interfered with on appeal in

circumstances akin to those present in this case, noting that sentencing remains “an individualized process”. [17] What constitutes a fit sentence in any given case, she observed, depends upon the facts specific to the case, including suchmitigating and aggravating factors as may be present. With this in mind, she noted that there were a number of mitigating factors at workin this case, including the fact Ms. Bethke was a first time offender, had pled guilty to the charge, had been regularly employed, was freeof addictions, and was at a low risk to re-offend.

The sentencing judge also noted that there were a number of aggravating factors atwork, including the fact Ms.

Bethke had taken advantage of her position of trust, had perpetrated her fraud over a period of five years,and had engaged in a course of planned and deliberate action. [18] Based upon all of this, including the mitigating and aggravating factors the sentencing judge identified, weighed, and took into thebalance, she concluded that a conditional sentence of imprisonment of two years less a day to be served in the community wasappropriate if made subject to a number of strict conditions, including electric monitoring for the first eight months: As I have said, I recognize that there is more than one sentencing alternative that may be equally justifiable in this case.

However,considering all of the circumstances, I am satisfied that the requirements of a conditional sentence have been met. I am satisfied that thepurposes and principles of sentencing, as enunciated in the Code and applied in this case can be satisfied with a community basedsentence. With that, she imposed the sentence under appeal. III.

THE APPEAL [19] The appeal falls to be addressed from the perspective of principle that the sentencing power is a discretionary power, the exercise ofwhich is not to be interfered with on appeal in the absence of an error in principle by the sentencing judge, a failure to consider a relevantmatter, or an overemphasis of the factors appropriate to a fit sentence. Either that, or the sentence must be demonstrably unfit to warrantintervention on appeal: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v.

M.(C.A.), (SCC), [1996] 1S.C.R. 500. [20] Mindful of this, we may turn to the bases upon which the Attorney General contended that Ms. Bethke’s sentence was imposed inerror and is demonstrably unfit. They form part of a whole aimed at demonstrating that the decision of the sentencing judge isunreasonable and that the sentence is unfit, but they are most conveniently addressed one by one, beginning with the first, namely thatthe sentencing judge failed to give adequate effect to the fundamental principle of sentencing. (

i) The application of the fundamental principle [21] There can be no doubt the sentencing judge was bound in law to apply the fundamental principle of sentencing in deciding whetherto allow Ms. Bethke to serve her sentence in the community as contemplated by

section 742.1 of the Criminal Code. This sectionempowers a judge to order that a sentence consisting of a term of imprisonment under two years be served in the community subject to avariety of conditions. But only if the judge is satisfied, among other things, that service of the sentence in the community would beconsistent with the fundamental and other principles of sentencing. Hence, it was incumbent upon the sentencing judge to have properregard for the gravity of the offence and the degree of responsibility of the offender. [22] This Court explained the import of this principle in the case of R. v.

Keshane, 2005 SKCA 18, 257 Sask. R. 161. In doing so, theCourt observed that the gravity of an offence lies in its nature, its comparative seriousness, and the harm caused by its commission. TheCourt also observed that the degree of responsibility of the offender lies in the extent of the offender’s moral culpability in committingthe offence. [23] With this in mind let us first consider the gravity of the offence. A fraud involving in excess of $5,000 constitutes an indictableoffence, punishable by up to 14 years in prison.

This speaks to Parliament's view of the gravity of this type of offence, when comparedwith other types, and to the gravity of this offence relative to the varying circumstances in which it may be committed. [24] In Ms. Bethke’s case, the circumstances surrounding the commission of the offence speak to an unquestionably serious version offraud. Her fraudulent conduct extended over a period of five years, entailed 60 separate transactions, and involved the dishonest taking ofover $178,000.00 from a small union local. This is a comparatively large scale fraud. And to the knowledge of Ms.

Bethke, the funds sheappropriated to her own use derived from union dues and were earmarked for the purpose, among others, of providing medical and dentalbenefits to the members of the Local.

[ 25 ] In this sense, the victims of her wrongdoing were numerous, and the harm done was considerable. In consequence of her having dishonestly diverted union dues to her own use, the Local ended up owing the national office of CUPE $104,000. To cover this and other liabilities resulting from Ms. Bethke’s fraud, the Local was forced to increase the union dues of its member by 50%. And, since a significant portion of the money she converted to her own use came out of funds earmarked for dental and medical benefits, the members of the Local suffered a corresponding degradation of their medical and dental coverage.

There were other consequences as well. The Local was hampered in its ability to pursue grievances through to arbitration, for example, and it was stripped of its affiliations with the Moose Jaw and District Labour Council, as well as CUPE Saskatchewan, as a result of non-payment of membership dues. [ 26 ] As for the degree of Ms. Bethke’s responsibility in committing the offence, or the extent of her moral culpability, there is little in the circumstances of the case, including those personal to her, to suggest any appreciable degree of diminished responsibility. She is a mature, educated, and experienced woman.

And each time she wrote and cashed a check payable to herself in payment for something to which she was not entitled, she was fully cognizant of what she was doing. She knew it was wrong, was capable of foreseeing the consequences, and was driven by nothing but a desire to have more money at her disposal than she was earning, coupled with a sense of entitlement, perhaps, born of thinking her work on behalf of the union was underappreciated and undervalued. True, she suffers from various ailments and is on anti-depressants.

But the record discloses no proximate or causal connection between this and the commission of the offence. [ 27 ] In sum, there can be no gainsaying the comparative gravity of the offence committed by Ms. Bethke or the extent of her moral culpability in committing it. [ 28 ] This assessment of the matter, when viewed in the light of the imposition of the sentence under appeal, suggests the sentencing judge did not fully appreciate the gravity of the offence and the extent of Ms.

Bethke’s moral culpability in committing the offence. [ 29 ] Over the last several years this Court has been called upon on occasion to assess the gravity of this type of offence, committed in circumstances such as these, and has often made the point that comparatively large scale frauds by persons in positions of trust must be seen for what they are: serious offences that call for proportionate responses in keeping with the fundamental and other principles of sentencing. The most recent of these cases are R. v. Harding , 2006 SKCA 118 , 213 C.C.C. (3d) 543, and R. v. Gopher , 2006 SKCA 5 , 205 C.C.C. (3d) 1.

Each contains references to a number of similar cases decided by this and other appellate courts—cases in which conditional sentences were held to be an inadequate response to frauds of this magnitude. [ 30 ] The Harding case is especially relevant in this regard, for it bears a striking resemblance to the present case. Mr. Harding, a 52 year old resident of Estevan, was the financial manager of the Estevan Local of the United Mine Workers of America.

He defrauded the Local of approximately $330,000 over the space of almost six years by writing checks to himself for amounts of money to which he was not entitled, and by using the Local’s credit card for his private purposes.

In consequence, he was sentenced to a term of imprisonment of two years less a day, to be served in the community subject to a number of conditions, including the condition he be confined in his home under electronic monitoring for several months. [ 31 ] This Court (Cameron, Gerwing and Smith JJ.A.), set aside the sentence on the ground, among others, that it was not consistent with the fundamental and other principles of sentencing.

In remarking upon the gravity of the offence, as well as the degree of responsibility of the offender, the Court said: 13 ….In this instance, the circumstances in which the offences were committed speak to decidedly serious versions of fraud. The accused's fraudulent conduct extended over a period of almost six years, entailed in excess of 900 transactions, and involved something in the order of $330,000. These are large scale frauds, especially relative to a small union local.

And to the knowledge of the accused, the funds he appropriated to his own use derived from union dues and were earmarked for educational and charitable purposes. In this sense, the victims of his wrongdoing extended beyond the local, and the members of the local, to those for whose benefit the funds were intended. 14 Turning to the accused's level of moral culpability, we observe that he repeatedly took advantage of the situation in which he found himself, knowing he was doing wrong.

He was in sole control of the accounts of the local, so he was able not only to access the accounts and appropriate funds for his personal use but to actively conceal his frauds, which he did by not presenting annual financial statements and by successfully deflecting requests for outside audits. He appreciated the seriousness of what he was doing and the prospect of being held responsible. Still, he persisted. [ 32 ] The Court went on to observe that Mr. Harding’s personal circumstances were not particularly noteworthy.

He was married and was the father of two adult children, held a well paid job, was active in his community, had not committed any other offences, and so on. The Court also went on to observe that he had been diagnosed with a gambling disorder—though not even his wife knew about his gambling—and that this served to some extent to diminish his level of culpability. In the opinion of the Court, however, the sentencing

judge had made too much of this in the context of applying the fundamental principle of sentencing. [33] The decision of this Court in R. v. Harding was brought to the attention of the sentencing judge during argument, as were otherdecisions of this and other courts, including other appellate courts, the Court of Queen’s Bench, and the Provincial Court. She mentioneda number of these in her review of the case law but did not expressly mention R. v. Harding in this context.

Given the obvious similaritybetween that case and this, the omission to do so serves to reinforce the suggestion that she did not fully assess, or come to fullyappreciate, the gravity of the offence and the extent of Ms. Bethke’s moral culpability in committing it. (ii) the application of the other principles of sentencing [34] The other principles of sentencing include the principle that a sentence should be similar to those imposed upon similar offendersfor similar offences committed in similar circumstances.

This principle, commonly referred to as the principle of parity, rests on thenotion that like cases should be decided alike in the interests of preserving the integrity of the administration of justice, as well asmaintaining public confidence therein. [35] Again R. v. Harding is particularly relevant, as are other similar cases decided by this and other appellate courts.

In Harding, thisCourt, having set aside the conditional sentence imposed in Provincial Court, went on to observe that it would ordinarily have imposed asentence consisting of a term of incarceration of 18 months but settled, instead, upon a term of 13 months because the offender hadalready spent five months on electronic monitoring. This suggests (in light of the similarity between the Harding case and this one), thatthe sentencing judge in this case did not give adequate effect to the principle of parity when exercising her discretionary sentencingpower. So, too, do other like cases, including R. v.

Boreen (1997), (SK CA), 152 Sask. R. 153 (Sask. C.A.) and R v.Fehr, 2001 SKCA 37, 207 Sask. R. 101. [36] In R. v. Boreen, this Court (Sherstobitoff, Lane and Jackson JJ.A.), set aside a suspended sentence imposed in Provincial Court(including seven months of electronic monitoring), for a fraud entailing the dishonest conversion over a period of two years of$120,242.95 by the general manager of a travel agency who occupied a position of trust in relation to the agency’s finances.

Having setthe sentence aside, the Court went on to observe that a fit sentence, at the time of sentencing, would have been 18 months in prison, butsettled on 12 months in view of a number extenuating personal circumstances—twelve months, that is, less credit for the time theoffender had already spent under electronic monitoring. [37] Similarly, in R. v.

Fehr this Court (Bayda C.J.S., Sherstobitoff and Jackson JJ.A.), set aside a conditional sentence imposed inProvincial Court (including six months of electronic monitoring) for a $220,000.00 fraud committed over the span of about ten years bya person in a position of trust, namely the bookkeeper of a small company. In setting the sentence aside, the Court held, among otherthings, that the sentence was not proportionate to the gravity of the offence, nor consistent with the principle of parity.

The Court thenwent on to hold that a sentence of incarceration of 18 months was appropriate subject to a seven month credit, including six months forthe time the offender had spent on electronic monitoring while the appeal was pending. [38] Other appellate courts, including those in British Columbia, Alberta, and Ontario, have likewise set aside conditional sentences inrelation to comparatively large scale frauds committed by persons in positions of trust and imposed, instead, sentences of incarcerationfor terms ranging from one to two years. This Court drew attention to these out-of-province cases in R. v.

Harding, as well as in R. v.Gopher. There is nothing to be gained in recounting them in detail for they are cited and recounted in material detail in R. v. Harding or,as the case may be, in R. v. Gopher.

The point is that all of these cases, including Boreen and Fehr, and Harding and Gopher, and otherscited therein, suggest that the sentencing judge in the present case failed to give reasonable effect to the general principle that like casesshould be treated alike in the interests of preserving the integrity of the administration of justice and maintaining public confidence in theadministration of the criminal law. [39] Which brings us to the third of the points raised by the Attorney General, namely that the sentencing judge, in exercising herdiscretion in favor of the imposition of a conditional sentence over a term of incarceration, failed to have sufficient regard for thesentencing objectives of denunciation and deterrence, particularly the objective of deterring others from committing crimes of the likecommitted by Ms.

Bethke. (iii) denunciation and deterrence [40] The relative importance of the sentencing objectives of denunciation and deterrence resonates throughout the cases referred to

above. In R . v. Gopher , for example, this Court concluded its review of the case authority pertaining to sentencing for comparatively large scale frauds by persons in position of trust by noting the importance of these objectives in this context. Richards J.A. (now Chief Justice Richards), spoke to this with the concurrence of Vancise and Gerwing JJ.A., saying: 66 This review of sentencing authorities indicates, not surprisingly, that there is no rigid set of rules which determines when a fraud or breach of trust offence warrants jail or penitentiary time.

It cannot be otherwise given that sentencing decisions must be geared to the specific circumstances of each offender. Nonetheless, the authorities do clearly reveal a general view that denunciation and deterrence are key objectives in sentencing these types of offences and that substantial frauds by persons in positions of trust will generally attract sentences involving substantial periods of incarceration. [emphasis added] [ 41 ] As remarked upon earlier, there is little in the circumstances of the present case, including those specific to Ms.

Bethke, to suggest that hers is an unusual or exceptional case in any material respect, including the mitigating circumstances when weighed alongside the aggravating circumstances as contemplated by

section 718.2 (

a) of the Criminal Code . [ 42 ] True, Ms. Bethke is at a low risk to reoffend and is currently experiencing some health-related problems. This is undoubtedly a stressful and difficult time for her, which is not lost on any of us. We might say, as was said in R. v. Patryluk , 2002 SKCA 33 , 217 Sask. R. 309: 21 …No judge can fail to take into account the personal circumstances of the offender, and in doing so few are unmoved by them.

We, too, are driven to compassion when we see the predicament [the offender and his parents] are in today, but we must do our duty, as must other judges, and give effect to the law. [ 43 ] Giving effect to the law in Ms. Bethke’s case, as in Mr. Patryluk’s, entails our having to allow the appeal by the Attorney General.

We have to allow it because in our considered opinion the conditional sentence imposed by the sentencing judge does not reflect a proper application of the fundamental and other principles of sentencing to which we have referred, and fails to adequately achieve the sentencing objectives of denunciation and deterrence, especially the objective of deterring others from committing like crimes. For these reasons we are of the view that in deciding to impose a conditional sentence in these circumstances the sentencing judge failed to exercise her discretion reasonably.

We are of the further view the sentence is demonstrably unfit. In consequence it is our duty to set it aside and impose another in its place. [ 44 ] The Attorney General submitted that a term of incarceration of 15 months would be appropriate, given the range of sentences customarily imposed in relation to offences of fraud of this magnitude when committed in circumstances such as these. This is a sound submission in our opinion, but we must recognize that while the appeal was pending Ms.

Bethke was confined to her home on electronic monitoring for a period of between five and six months, and performed a number of hours of community service. In fairness, she is entitled to a sentencing credit for this. We might also note that there has been a concerted effort of late to enforce the order of restitution that accompanied her conditional sentence, an effort that may succeed, at least partially. Having regard for all of this, we think it appropriate to allow her a sentencing credit of six months.

So we have decided to sentence her to an effective term of incarceration of nine months. [ 45 ] In leaving the case, we note that the sentencing judge spoke of the difficulties associated with sentencing in cases such as these, suggesting in effect that it was difficult to reconcile some of the case law.

There are certainly some difficulties, for sentencing in these circumstances (as indeed in virtually all circumstances), entails a balancing of competing imperatives in the exercise of judgment, and judges are apt to have differing opinions about what constitutes an appropriate balance in the circumstances of the particular case. This is especially so, perhaps, in determining whether a conditional sentence might be appropriate having regard for the circumstances of the specific case, the purpose, objectives, and principles of sentencing laid down by Parliament in

section 718 of the Criminal Code , and the import of the conditional sentencing provisions of

section 742 as explained by the Supreme Court of Canada in R. v. Proulx , s upra. There are a lot of variables in all this, and hence a significant amount of room for differences of opinion to emerge. [ 46 ] Still, it falls to all of us—meaning all of the judges of all the courts in the Province—to strive to achieve a reasonable degree of consistency in the application of these provisions, however inherently difficult this may be on occasion because of the inevitable variation in circumstances.

But, unless we treat like cases more or less alike, we run the risk of undermining the integrity of the administration of justice and, hence, public confidence in the administration of the criminal law. [ 47 ] This ties in, of course, with the long-accepted recognition of sentencing ranges, and the desirability, in the absence of the extraordinary, of sentencing within the established ranges of sentence for this offence or that, moving up and down the range as the circumstances and faculty of judgment commend. [ 48 ] The point is this. Given the striking similarity between R. v.

Harding and this case, it is exceedingly difficult, if indeed possible, to

reconcile the imposition by the sentencing judge of a conditional sentence in this case with the imposition by this Court of a term ofincarceration in Harding; or, for that matter, the imposition by this Court of terms of incarceration in each of R. v. Boreen and R. v. Fehr.It is equally difficult, in the circumstances of this case, to square the imposition of a conditional sentence in this case with what was saidof like cases in R. v.

Gopher, namely that “substantial frauds by persons in positions of trust will generally attract sentences involvingsubstantial periods of incarceration.” [49] That it is so difficult, if indeed possible, to reconcile the imposition of a conditional sentence in this case with the imposition ofterms of incarceration in these other appellate level cases is not as it should be.

It is not as it should be because of the similarity in thecases and the need, in the interest of preserving the integrity of the administration, to achieve a reasonable degree of consistency ascontemplated by the general principle that like cases fall to be decided alike. In the scheme of things, of course, it falls to the appellatecourts to play a lead role in this regard. So when this Court, having set aside a sentence, imposes another in its place, its decision,including its reasoning, is of particular significance. [50] The Court (Bayda C.J.S., Wakeling and Lane JJ.A.) remarked upon this in R. v.

Jackson (1994), (SK CA), 87C.C.C. 56, [1994] 3 W.W.R. 125. It did so in the context of the sentencing decisions of this Court and with reference to the followingpassage drawn from the reasons for judgment of the Supreme Court of Canada in R. v. Woods Manufacturing Co., (SCC), [1951] S.C.R 504 at p. 515: It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon whichthey are binding.

Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomesuncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced... should beaccepted and applied as our tradition requires; and even at the risk of that fallibility to which all judges are liable, we must maintain thecomplete integrity of relationship between the courts. [emphasis added] [51] The substance of these observations may not be altogether apt in the context of sentencing, because the sentencing power isessentially discretionary.

Still, their tenor resonates here in light of the need to minimize disparity by achieving a reasonable level ofconsistency in keeping with the express principle of sentencing found in

section 718.2 (b), namely that “a sentence should be similar tosentences imposed upon offenders for similar offences committed in similar circumstances.” Thus the decisions of this Court in thisregard, especially as they reinforce or fix ranges for particular categories of offence, are to be seen as providing guidelines for trial courts—guidelines that are intended to assist in achieving a reasonable level of consistency throughout the Province toward the end ofminimizing disparity.

They should be seen as such and respected as such. [52] That said, the appeal is allowed, the conditional sentence is set aside, and a sentence of imprisonment of nine months is imposed inlieu thereof. There will be judgment accordingly. Dated this 13th day of December 2013. “Cameron J.A.”___________ Cameron J.A. I concur: “Cameron J.A.”__________ For Caldwell J.A. “Whitmore J.A.”__________ Whitmore J.A.