R. v. Bunn, 2000 SCC 9, [2000] 1 SCR 183

R. v. Bunn, [2000] 1 S.C.R. 183

Her Majesty The Queen                                                                   Appellant

v.

Thomas Andrew Bunn Respondent

and

The Attorney General of Canada and

the Attorney General for Ontario                                                     Interveners

Indexed as:  R. v. Bunn

Neutral citation:  2000 SCC 9.

File No.:  26339.

1999:  May 25, 26; 2000:  January 31.

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,^* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for manitoba

Criminal law -- Sentencing -- Legislative amendment -- Accused sentenced to two years’ incarceration -- New legislation introducing conditional sentencing regime after trial but before appeal -- Conditional sentence available when sentence of less than two years imposed -- Whether accused eligible to conditional sentence on appeal.

Criminal law -- Sentencing -- Conditional sentences -- Lawyer convicted of breach of trust -- Whether Court of Appeal erred in substituting conditional sentence for two-year penitentiary term imposed by sentencing judge -- Criminal Code, R.S.C., 1985, c. C-46, s. 742.1 .

The accused, a lawyer, was retained by Soviet lawyers to recover and remit inheritances of money from the estates of six deceased Manitoba and Saskatchewan residents.  In all cases, he converted part of the trust money received for each of the beneficiaries from his trust account to his general account.  When the conversions were discovered by the Law Society, his right to practice was suspended.  He was later disbarred.  The accused was convicted of six counts of breach of trust and sentenced to two years’ incarceration.  At the time of sentencing, the accused was married with one teenage daughter.  His wife was disabled and confined to a wheelchair.  After trial but prior to the appeal, Bill C-41 and the conditional sentencing regime came into force.  The Court of Appeal allowed the accused’s appeal from sentence and imposed a conditional sentence of two years less a day.

Held (L’Heureux-Dubé, Bastarache and Binnie JJ. dissenting):  The appeal should be dismissed.

Per Lamer C.J. and Gonthier, McLachlin, Iacobucci and Major JJ.:  Bill C-41 introduced the conditional sentencing regime and significant changes to the principles of sentencing.  These changes raise the distinct possibility that a judge who sentenced an offender to a short penitentiary term prior to the introduction of Bill C-41, particularly a term of exactly two years, would have found that a sentence of less than two years was appropriate had the new provisions been in force at the time of sentencing.  The offender would therefore have been eligible for a conditional sentence.  Accordingly, the new amendments constitute a potential mitigation of punishment for such an offender, and should apply on appeal.

Where there has been an intervening change in the law between sentencing and appeal, it is as though the sentencing judge has committed an error in principle, because relevant principles have not been considered.  The Court of Appeal need not, therefore, defer to all of the trial judge’s findings, and can proceed to re-sentence the accused in light of the new principles.  In reviewing the Court of Appeal’s sentence, this Court should accord it some deference.

In this case, there is no reason to interfere with the Court of Appeal’s sentence.  None of the offences carried a minimum term of imprisonment.  The decision to reduce the sentence to less than two years was justified in light of the changes in the law.  The effect of ss. 718.2(e) and 718(e) and (f) was sufficient to warrant a reduction of the sentence in this case.  The Court of Appeal reasonably concluded that the ruin and humiliation that the accused had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest.  The court also imposed a condition of 200 hours of community service which was capable of achieving the restorative objective of reparation to the community.  Moreover, the Court of Appeal noted important mitigating circumstances in this case.  The accused was the sole provider and caregiver for both his disabled wife and their daughter.  The Court of Appeal’s sentence provided sufficient denunciation and deterrence, and was not disproportionately lenient.

Per L’Heureux-Dubé, Bastarache and Binnie JJ. (dissenting):  The trial judge’s sentence should be restored.  An intervening change in the law does not necessarily give rise to re-sentencing by the Court of Appeal.  Rather, it gives rise to a right of review to determine whether the sentence of the trial judge is inconsistent with the new sentencing principles and therefore in error.  Here, the Court of Appeal did not have sufficient reason to interfere with the trial judge’s decision to impose the penitentiary term.  The two-year sentence of incarceration was neither unfit, nor inconsistent with the new principles of sentencing introduced by Bill C-41.

While the changes to the Criminal Code  would in a proper case permit a reduction of a sentence to two years less a day, thereby triggering the consideration of a conditional sentence, this is not an appropriate case for community sanctions.  The focus of the sanction for criminal breach of trust is denunciation and general deterrence.  Lawyers convicted of criminal breach of trust have generally been sentenced to jail.  This emphasis on denunciation and general deterrence is particularly important when courts punish lawyers who have committed criminal breach of trust.  First, the criminal dishonesty of lawyers has profound effects on the public’s ability to conduct business that affect people far beyond the victims of the particular crime.  Second, as officers of the court, lawyers are entrusted with heightened duties, the breach of which brings the administration of justice into disrepute.  Thirdly, judges are drawn from the legal profession and there is a duty to ensure public confidence in the pool from which members of the bench are selected.  Finally, judges must be particularly scrupulous in sentencing lawyers in a manner that dispels any apprehension of bias.  A lawyer should receive, and be seen to receive, the same treatment as any other person convicted of a similar crime.  Any perception that a lawyer might receive more lenient consideration by the courts must be guarded against.

Even if the Court of Appeal correctly relied on the introduction of the conditional sentencing regime to revisit the sentence, given that denunciation and deterrence are the primary principles of sentencing engaged by a breach of trust by a lawyer, a conditional sentence would be disproportionally lenient in this case.  The facts display a significant level of criminal culpability and the short penitentiary sentence imposed by the trial judge was proportionate to the gravity of the offence.  The severity of this sentence is seriously undermined by the substitution of a conditional sentence of two years less a day.  This is more than a reduction of a single day, it is also significantly less severe in terms of incarceration.

Cases Cited

By Lamer C.J.

Referred to:  R. v. Proulx, [2000] 1 S.C.R. 1, 2000 SCC 5; R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; R. v. Kineapple, [1975] 1 S.C.R. 729; R. v. Dunn, [1995] 1 S.C.R. 226; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. M. (C.A.), [1996] 1 S.C.R. 500.

By Bastarache J. (dissenting)

R. v. Proulx, [2000] 1 S.C.R. 61,  2000 SCC 5; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7; R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Dunn, [1995] 1 S.C.R. 226; R. v. Bergeron, [1998] Q.J. No. 3539 (QL); R. v. Manolescu (1997), 202 A.R. 241; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Barker (1995), 102 Man. R. (2d) 305; R. v. Kelleher, [1995] M.J. No. 398 (QL); R. v. Ryan, [1976] 6 W.W.R. 668; R. v. Salmon, Alta. Q.B., Calgary 9001‑2179-02, October 21, 1991; R. v. Gingera, [1966] 1 C.C.C. 273; R. v. Oliver, [1977] 5 W.W.R. 344; R. v. Shandro (1985), 65 A.R. 311; Marchessault v. La Reine, C.A. Mtl., No. 500-10-000035-848, July 12, 1984; R. v. Foran, [1970] 1 C.C.C. 336.

Statutes and Regulations Cited

An Act to amend the Criminal Code  (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.

Criminal Code , R.S.C., 1985, c. C-46 , Part XXIII [repl. 1995, c. 22, s. 6], ss. 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 742.1(a), (b) [repl. 1997, c. 18, s. 107.1].

Interpretation Act , R.S.C., 1985, c. I-21 , s. 44 (e).

APPEAL from a judgment of the Manitoba Court of Appeal (1997), 125 C.C.C. (3d) 570, 118 Man. R. (2d) 300, 149 W.A.C. 300, [1997] M.J. No. 543 (QL), allowing the accused’s appeal from a sentence of two years’ imprisonment imposed by Scollin J. Appeal dismissed, L’Heureux-Dubé, Bastarache and Binnie JJ. dissenting.

Matthew Britton, for the appellant.

Martin D. Glazer, for the respondent.

S. Ronald Fainstein, Q.C., for the intervener the Attorney General of Canada.

Kenneth L. Campbell and Gregory J. Tweney, for the intervener the Attorney General for Ontario.

The judgment of Lamer C.J. and Gonthier, McLachlin, Iacobucci and Major was delivered by

1                                   The Chief Justice -- This is a Crown appeal from a decision of the Manitoba Court of Appeal substituting a conditional sentence for the penitentiary term imposed by the trial judge.  This case was heard together with the appeals in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. L.F.W., [2000] 1 S.C.R. 132, 2000 SCC 6; R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7, and R. v. R.A.R., [2000] 1 S.C.R. 63, 2000 SCC 8.  Like R.A.R. and R.N.S., this case raises questions about the effects of changes in the law between the pronouncement of the sentence by the trial judge and the hearing of the appeal.

I.     Factual Background

2                                   The respondent, a lawyer, began an agency relationship with an association of lawyers in the former Soviet Union.  The Soviet lawyers retained the respondent to recover and remit inheritances of money from the estates of six deceased Manitoba and Saskatchewan residents.  The money involved was sent to the respondent by the executors of the estates or their solicitors, and he acted for the beneficiaries pursuant to a power of attorney signed by each of the beneficiaries.  The respondent was also the executor of one estate.

3                                   In all cases, the respondent converted part of the trust money received for each of the beneficiaries  from his trust account to his general account.  Approximately $86,000 was converted through 145 separate transfers between February 1986 and September 1989, after he had already taken 10 percent as fees for his services.  The conversions were discovered by a spot audit conducted by the Law Society of Manitoba in October 1989.  The Law Society suspended the respondent’s right to practice and  later disbarred him.

4                                   The respondent was convicted of six counts of breach of trust and six counts of theft, although the theft charges were stayed pursuant to the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729.  At the time of sentencing, the respondent was 45 years old and employed with a local corporation.  He was married with one teenage daughter.  His wife was disabled and confined to a wheelchair.  As a result of his wife’s disability, the respondent had taken on a large share of family responsibilities, and he was the sole income-earner for the family.  His legal career had been beset by financial woes for many years.  According to the pre-sentence report, the respondent was acutely aware of what he had already lost in personal terms, namely a 20-year career as a lawyer, and the respect of the public and his peers.  He suffered “humiliation and torment . . . amplified with the realization that his invalid wife and teenage daughter must share in the embarrassment and debasement of his personal debacle” (p. 9 of the pre-sentence report).

5                                   He was sentenced to two years’ incarceration (sentences of imprisonment of two years or more are served in a penitentiary).  The respondent appealed his convictions and sentence, and the Crown cross-appealed the sentence.  After trial but prior to the appeal, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), and the conditional sentencing regime came into force.  The Manitoba Court of Appeal dismissed the respondent’s convictions appeal and the Crown’s cross-appeal, but allowed the respondent’s appeal from sentence and substituted a conditional sentence of two years less a day.

II.       Relevant Statutory Provisions

6                                   Criminal Code , R.S.C., 1985, c. C-46 

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a)  to denounce unlawful conduct;

(b)     to deter the offender and other persons from committing offences;

(c)  to separate offenders from society, where necessary;

(d)   to assist in rehabilitating offenders;

(e)  to provide reparations for harm done to victims or to the community; and

(f)  to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

III.       Judgments Below

A. Manitoba Court of Queen’s Bench, C.R. 94-01-14797, February 5, 1996

7                                   In brief reasons, Scollin J. stated that the aggravating and mitigating factors in the case had been thoroughly explored by both counsel.  The Crown had listed as aggravating factors the breach of trust, the repeated occurrence of illegal conversions (145 transactions), the amount of money at issue, and the fact that the respondent had been unwilling to acknowledge guilt and repay the sums.  Defence counsel referred to the embarrassment and loss of reputation already suffered by the respondent and the letters of reference from other lawyers written in the respondent’s favour.

8                                   Scollin J. referred to the poor treatment of the distant Soviet beneficiaries, and to the burden placed upon other members of the Law Society by the respondent’s unlawful conduct.  He stated that he gave weight to the reference letter from a lawyer with whom the respondent had been associated from time to time, and that he had paid attention to a letter from another lawyer who had been told by the victims’ lawyer in the U.S.S.R. that the victims would be satisfied with a one-year sentence of imprisonment.  He also stated that he “paid close attention” to the pre-sentence report, which described the hardship that the respondent had already suffered as a result of his actions.  Commenting that it was difficult to reach a perfect sentence, Scollin J. held that a sentence of two years’ imprisonment was merited.  He stated that a longer sentence would “cross the border into vengeance”, while a shorter sentence would be an “excess of sympathy in the guise of mercy”.

B. Manitoba Court of Appeal (1997), 118 Man. R. (2d) 300

9                                   Kroft J.A. began by noting that the court’s primary concern was not with the duration of the detention ordered by the trial judge, since a sentence of two years’ imprisonment on the facts of the particular case was not one which, prior to the introduction of the conditional sentencing regime, would have been likely to invite appellate intervention.  He stated that the introduction of the conditional sentence was part of a change that involved replacing the existing Part XXIII of the Criminal Code  with a new set of principles.  He held that the new conditional sentencing provisions could be given retroactive effect in relation to this appeal pursuant to s. 44 (e) of the Interpretation Act , R.S.C., 1985, c. I-21 , and this Court’s decision in R. v. Dunn, [1995] 1 S.C.R. 226.  Accordingly, the Court of Appeal was in the position of considering the fitness of the sentence according to different statutory criteria than those in effect when the trial judge rendered his decision.  Unlike the usual sentence appeal, the court was entitled, if not bound, to exercise its own discretion.

10                               Kroft J.A. was persuaded that if the option had been open to him, the trial judge would have, and should have, addressed the possibility of imposing a sentence of two years less a day instead of two years.  He based this observation on the wording of the sentencing judgment and on the mitigating factors of the case, including the important role played by the respondent at home with his disabled wife and as sole supporter of his family, as well as the respondent’s financial difficulties.  Kroft J.A. also considered the letter referred to by the trial judge which indicated that the victims would be satisfied with a one-year sentence of imprisonment.

11                               In determining whether a conditional sentence would be appropriate, Kroft J.A. began by noting that the respondent was not a danger to the community.  Turning to a consideration of the principles of sentencing, Kroft J.A. stated that concerns of denunciation and deterrence had been addressed by the ruin and humiliation that the respondent had brought upon himself and his family, and by the loss of the respondent’s professional status.  Kroft J.A. therefore reduced the sentence originally imposed by one day, and ordered that it be served in the community.  In addition to the mandatory conditions, he ordered the respondent to perform 200 hours of community service, remain resident at his current address or another approved address, and be confined to his property at all times, with limited exceptions.

IV.    Issue

12                               At issue in this appeal is whether the Court of Appeal improperly interfered in substituting a conditional sentence for the two-year penitentiary term imposed by the sentencing judge.

V.    Analysis

13                               The Crown argued that the Court of Appeal erred in two respects.  First, the Court of Appeal should not have reduced the two-year sentence imposed by the trial judge by one day so as to make the respondent eligible for a conditional sentence.  Second, and in the alternative, the Court of Appeal erred in concluding that a conditional sentence was warranted in this case, particularly because a conditional sentence could not provide sufficient denunciation and deterrence.  I will consider each argument in turn.

A. Did the Court of Appeal Err in Reducing the Sentence by One Day?

14                               The Crown’s argument may be briefly put as follows.  Pursuant to s. 742.1 (a) of the Criminal Code , conditional sentences are only available in cases where a sentence of less than two years is imposed.  Where a sentence of two years is imposed by the sentencing judge, a conditional sentence is unavailable, unless that sentence is demonstrably unfit and reduced to less than two years on appeal.  In this case Scollin J. imposed a two-year sentence.  The Court of Appeal stated that it was not primarily concerned with the duration of the detention ordered, and that a sentence of two years for the offences the respondent committed would not have been likely to invite appellate intervention in the past.  Therefore, according to the Crown, the two-year sentence imposed by Scollin J. was not demonstrably unfit.  It should not have been disturbed, and a conditional sentence should not have been imposed.

15                               The Crown’s argument presupposes that the respondent was not entitled to the benefit of the sentencing amendments introduced by Bill C-41 on appeal.  As I discussed in R.A.R., supra, at paras. 14-16, an offender is entitled to the benefit of any amendments to sentencing provisions introduced after sentencing but prior to appeal that provide for a reduction or mitigation of punishment.  The Crown’s argument is that Bill C-41 only constitutes a reduction or mitigation of punishment for those offenders sentenced to less than two years’ imprisonment because a conditional sentence is unavailable for offenders who receive a penitentiary term.  Since the respondent was sentenced to a penitentiary term, the sentencing provisions in force at the time the respondent was originally sentenced should continue to apply.  If these provisions were applied, the sentence of incarceration should not have been reduced by one day, as the Court of Appeal conceded that a sentence of two years would not have warranted appellate intervention in the past.

16                               In my view, the Crown construes the mitigating effect of the new sentencing amendments too narrowly.  While Bill C-41 and the introduction of the conditional sentencing regime constitute a mitigation of punishment for offenders sentenced to less than two years’ imprisonment, I am of the opinion that the new amendments may also constitute a mitigation of punishment for offenders who were sentenced to short penitentiary terms, particularly those sentenced to terms of exactly two years.

17                               In addition to the introduction of the conditional sentence, Bill C-41 also introduced significant changes to the principles of sentencing.   As this Court found in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 48, and Proulx, supra, at paras. 14-19, two of Parliament’s principal objectives in enacting Bill C-41 were to reduce the use of prison as a sanction and to expand the use of restorative justice principles in sentencing.  It was noted that these two objectives were linked, as the objectives of restorative justice would generally be achieved more efficiently by sanctions other than incarceration: see Gladue, supra, at para. 43; Proulx, supra, at para. 109. 

18                               These objectives are reflected in several provisions of the new Part XXIII of the Criminal Code .  Section 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of the aboriginal offenders”.  Commenting on the significance of the enactment of s. 718.2(e), the Court found in Gladue, supra, at para. 39, that:

With respect for the contrary view, we do not interpret s. 718.2(e) as expressing only a restatement of existing law, either with respect to the general principle of restraint in the use of prison or with respect to the specific direction regarding aboriginal offenders. . . .  The enactment of the new Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law.

New emphasis is also placed on the principles of restorative justice in s. 718(e) and (f): see Gladue, supra, at para. 43.

19                               These changes to the law raise the distinct possibility that a judge who sentenced an offender to a short penitentiary term prior to the introduction of Bill C-41, particularly a term of exactly two years, would have found that a sentence of less than two years was appropriate had the new provisions been in force at the time of the sentencing.  The offender would therefore have been eligible for a conditional sentence.  Accordingly, the new amendments constitute a potential mitigation of punishment for such an offender, and should apply on appeal.

20                               I note one further argument in support of this position.  On occasion, a sentencing judge will impose a short penitentiary term, especially one of exactly two years, instead of a long jail term because in some areas of the country, the conditions in federal penitentiaries are better than those in provincial institutions.  Where a penitentiary term was imposed for this reason prior to the introduction of Bill C-41, it is even more likely that the sentencing judge may have sentenced the offender to a term of imprisonment of less than two years had the new provisions been in force at the time of sentencing.       

21                               For the foregoing reasons, I am of the opinion that the respondent was entitled to the benefit of the changes to the law on appeal.  As a result, the Court of Appeal was entitled to conduct a re-sentencing.  In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90, I explained that "absent an error in principle . . . a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit".  Where there has been an intervening change in the law between sentencing and appeal, it is as though the sentencing judge has committed an error in principle, albeit for reasons beyond his or her control, because relevant principles have not been considered.  The Court of Appeal need not, therefore, defer to all of the trial judge's findings, and can proceed to re-sentence the respondent in light of the new principles.

B. Did the Court of Appeal Err in Imposing a Conditional Sentence?

22                                 In reviewing the Court of Appeal’s sentence, this Court should accord it some deference; see R.A.R., supra,  at para. 21.  I find no reason to interfere with the Court of Appeal’s sentence.  None of the offences of which the respondent was convicted carried a minimum term of imprisonment.  The Court of Appeal’s decision to reduce the sentence to less than two years was justified in light of the changes in the law.  In my view, the effect of ss. 718.2(e) and 718(e) and (f) was sufficient to warrant a reduction of the respondent’s sentence, thereby satisfying the requirement of s. 742.1(a).  I also see no reason to interfere with the Court of Appeal’s finding that the respondent did not pose any danger to the community. 

23                               Turning to a consideration of the principles of sentencing, the court reasonably concluded that the ruin and humiliation that Mr. Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest.  The Court of Appeal also imposed a condition of 200 hours of community service which was capable of achieving the restorative objective of reparation to the community.  Moreover, the Court of Appeal noted important mitigating circumstances in this case.  The respondent was the sole provider and caregiver for both his wife, who suffered from multiple sclerosis and had been confined to a wheelchair for years, and their teenage daughter.

VI.       Disposition

24                               The Court of Appeal’s sentence provided sufficient denunciation and deterrence, and was not disproportionately lenient.  I would dismiss the appeal.

The reasons of L’Heureux-Dubé, Bastarache and Binnie JJ. were delivered by      

25                               Bastarache J. (dissenting) -- This Crown’s appeal raises the question of whether the Manitoba Court of Appeal erred in substituting a conditional sentence for the penitentiary term of two years imposed by the trial judge.  As in the companion cases of R. v. R.N.S., [2000] 1 S.C.R. 149, 2000 SCC 7, and R. v. R.A.R., [2000] 1 S.C.R. 163, 2000 SCC 8, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C‑41”), was introduced after trial and before appeal.  In contrast with those appeals, the trial judge in this case did not impose a sentence within the range of sentences that might benefit from the new conditional sentencing provisions.  Instead he found that the appropriate sentence was a short penitentiary term.

26                               While I agree with the statement of principles set out in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, I cannot accept the conclusion reached by the Chief Justice in this case.  While on the face of it the Court of Appeal made a minor adjustment of one day in the two-year sentence imposed by the trial judge, the Court of Appeal in fact levered this minor adjustment into the substitution of an altogether different sentencing approach from that considered appropriate by the trial judge, who, as stated, concluded that the appellant ought to be incarcerated in a penitentiary for two years.  In my view, the Court of Appeal did not have sufficient reason to interfere with this determination by the trial judge:  the sentence was neither unfit, nor inconsistent with the new principles of sentencing introduced by Bill C-41.  Furthermore, while the changes to the Criminal Code , R.S.C., 1985, c. C-46 , could in a proper case permit a reduction of a sentence to two years less a day, thereby triggering the consideration of a conditional sentence, this is not an appropriate case for community sanctions.

27                               A Court of Appeal has jurisdiction to revisit and vary a sentence if the sentence is demonstrably unfit or if the trial judge made an error in principle (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90).  By virtue of the Interpretation Act , R.S.C., 1985, c. I-21 , an accused found guilty has the right to receive the benefit of an intervening change in the applicable law that would serve to reduce or to mitigate a penalty when that change occurs after sentencing but before appeal (R. v. Dunn, [1995] 1 S.C.R. 226).  Thus, the Court of Appeal could have varied the sentence of two years if it was unfit, or if the provisions of Bill C-41 would have reduced or mitigated the sentence, which would have amounted to finding that an error in principle was made.

28                               The Court of Appeal began by determining that a sentence of two years was not demonstrably unfit, and would not have invited appellate intervention prior to the legislative amendment.  The decision of the trial judge to impose a penitentiary term is a significant one.  I agree with the Chief Justice that this choice may sometimes be affected by outside factors, such as the availability of treatment facilities, the location of prisons, the risks posed to the prisoner at a specific institution, or the timing of predicted release.  However, I find no indication that the trial judge in this case considered any factors other than those pertaining directly to the criminal culpability of the respondent.  I agree that this sentence was appropriate in light of all the facts before the trial court and in consideration of sentences for similar crimes before the change in the law.

29                               The Court of Appeal went on to consider the effect of Bill C-41.  Kroft J.A. found that the introduction of the conditional sentencing option required the Court of Appeal to reconsider the sentence, and concluded:

I am persuaded that if the option had been open to him, Scollin, J., would have, and should have, addressed the possibility of imposing a sentence of two years less a day instead of two years, and that sanctions other than imprisonment would have been considered.

((1997), 118 Man. R. (2d) 300, at p. 302.)

30                               While I agree that the trial judge, Scollin J., would undoubtedly have considered the full range of sentencing options open to him, the more important consideration is that Scollin J. rejected all options short of a term in the penitentiary.  After considering all of the submissions on sentence, he specifically concluded:

[A] sentence of two years is merited by the conduct of the accused.  More than that, in this case, would cross the border into vengeance; less would be an excess of sympathy in the guise of mercy.

(Man. Q.B., C.R. 94-01-14797, February 5, 1996, at p. 34 (transcript).)

The trial judge came to this determination after hearing extensive submissions from the Crown, who requested a sentence of four years, and the defence, who urged a sentence of one year.  The trial judge also had the benefit of a pre-sentence report indicating that the accused was reluctant to acknowledge criminal culpability and concluding that, “supervised probation would serve no practical need or purpose.  Mr. Bunn has all the tools in terms of requisite capacities, skills, and supports to construct any reality he so chooses” (p. 9 of the pre-sentence report).

31                               In my view, the introduction of the conditional sentencing option alone should have had no effect on the appeal in this case since the offender would not have been eligible for the conditional sentence given the penitentiary term imposed.  In the two-stage approach set out in Proulx, supra, the first step is to exclude the possibility of both probationary measures and a penitentiary term:  “[i]f either of these sentences is appropriate, then a conditional sentence should not be imposed” (para. 58 (emphasis added)).  In this case the trial judge fashioned a fit and proper sentence that was outside the range of sentences eligible for conditional sentencing.  The Court of Appeal should therefore not have considered the availability of a conditional sentence unless Bill C‑41 introduced other changes relevant to the punishment of the offender that would mitigate or reduce his sentence.

32                               It is true that Bill C-41 made other significant changes in the sentencing regime that would, in an appropriate case, require a Court of Appeal to vary a sentence imposed by a trial judge that is outside the range of sentences eligible for conditional sentences.  As recognized in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 43, in addition to introducing the conditional sentence and requiring sentencing judges to consider alternatives to imprisonment, the new provisions both codify the existing sentencing principles which are listed in s. 718(a) through (d) and introduce new restorative justice principles in s. 718(e) and (f).  It may be that in an appropriate case the combination of the restorative principles with the requirement to consider alternatives to imprisonment would serve to reduce a penitentiary term to two years less a day so that a conditional sentence might be imposed.  But this can only occur where consideration of all sentencing principles makes it clear that there has been an error in principle producing an unfit sentence.  I would therefore, with respect, disagree with the Chief Justice where he says that an intervening change in the law necessarily gives rise to re‑sentencing by the Court of Appeal.  In my view, the intervening change in the law gives rise to a right of review to determine whether the sentence of the trial judge is inconsistent with the new sentencing principles and therefore in error.  This interpretation is in accord with the decision of the majority in Dunn, supra, where this Court rejected the notion that de novo sentencing was appropriate.

33                               This is not a case where a variance in sentence is warranted based on the changes introduced in s. 718.  It is well established that the focus of the sanction for criminal breach of trust is denunciation and general deterrence; see, for example, R. v. Barker (1995), 102 Man. R. (2d) 305 (C.A.); R. v. Kelleher, [1995] M.J. No. 398 (QL) (Prov. Ct.), at para. 7.  In the past this has required that, absent exceptional circumstances, lawyers convicted of criminal breach of trust have been sentenced to jail; see R. v. Ryan, [1976] 6 W.W.R. 668 (Alta. C.A.); Barker, supra; R. v. Bergeron, [1998] Q.J. No. 3539 (QL) (C.Q.), at para. 19.  This emphasis on denunciation and general deterrence is, for a number of reasons, particularly important when courts punish lawyers who have committed criminal breach of trust.  First, the criminal dishonesty of lawyers has profound effects on the public’s ability to conduct business that affect people far beyond the victims of the particular crime (R. v. Salmon, Alta. Q.B., Calgary 9001‑2179‑02, October 21, 1991).  Second, as officers of the court, lawyers are entrusted with heightened duties, the breach of which brings the administration of justice into disrepute (R. v. Gingera, [1966] 1 C.C.C. 273 (Man. C.A.); R. v. Manolescu (1997), 202 A.R. 241 (Prov. Ct.)).  Thirdly, judges are drawn from the legal profession and there is a duty to ensure public confidence in the pool from which members of the bench are selected (R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.)).

34                               Finally, judges must be particularly scrupulous in sentencing lawyers in a manner that dispels any apprehension of bias.  A lawyer should receive, and be seen to receive, the same treatment as any other person convicted of a similar crime.  While they are not to be singled out for harsher penalties than others convicted in comparable circumstances, any perception that a lawyer might receive more lenient consideration by the courts must be guarded against (Ryan, supra; R. v. Shandro (1985), 65 A.R. 311 (C.A.)).  In this regard I would adopt the reasoning of my colleague Justice L’Heureux‑Dubé, then a member of the Quebec Court of Appeal, in Marchessault v. La Reine, C.A. Mtl., No. 500-10-000035-848, July 12, 1984, at p. 3:

[translation]  On a subjective level, it is clear that whenever a crime is committed by a public figure, a person in authority, a star, etc., all the factors mentioned, or almost all, are present: the crime and the punishment receive greater publicity, the shame and opprobrium are that much greater, the financial loss resulting from the loss of employment is commensurate with the high income.  .  .  . 

Popular wisdom has it that the further one falls, the more it hurts. . . .

[T]he higher the rank or position the figure occupies in society, the more well known he or she is, the lighter the sentence should be and, conversely, the more humble or obscure the figure is, the harsher it will be.  I do not accept this proposition:  the scales could not accommodate these two unequal measures.  Justice must be the same for everyone, great or small, rich or poor.

35                               Even if I were to accept that the Court of Appeal correctly relied on the introduction of the conditional sentencing regime to revisit the sentence on the Dunn principle, I would still decline to impose a conditional sentence in this case.

36                               In the instant case, the serious nature of the statutory aggravating factor of abuse of trust (s. 718.2) renders a conditional sentence inappropriately lenient.  In this regard I would also point to further aggravating factors:  the vulnerability and number of the foreign victims, many of whom were elderly; the extended length of time over which the accused perpetrated the breaches, three years and seven months; the pattern of conduct, consisting of the repetition of 145 separate transactions; and the unlikeliness that he would have been caught, especially by the victims.  The  mitigating significance of the accused’s otherwise good reputation in the community and lack of prior record should be given little weight in this type of case because it is that same unsullied reputation that allowed the accused to gain the position from which he could commit the crime (R. v. Foran, [1970] 1 C.C.C. 336 (Ont. C.A.); Kelleher, supra).

37                               These facts display a significant level of criminal culpability and in my view the short penitentiary sentence imposed by the trial judge was proportionate to the gravity of the offence.  The severity of this sentence is seriously undermined by the substitution of a conditional sentence of two years less a day.  This is more than a reduction of a single day; it is, as explained in Proulx, at para. 40, also significantly less severe in terms of incarceration.  As observed in Proulx, at para. 102:

Incarceration will usually provide more denunciation than a conditional sentence, as a  conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.  That said, a conditional sentence can still provide a significant amount of denunciation.  This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.  [Emphasis added.]

In this case, because the jail term that would otherwise have been imposed was either two years or two years less a day, it is impossible for the length of the conditional sentence to be extended in order to compensate for the lessened degree of denunciation.  Since denunciation and deterrence are the primary principles of sentencing engaged by a breach of trust by a lawyer, it would be disproportionally lenient to give a conditional sentence in this case.

38                               I would, therefore, allow the appeal and restore the two-year sentence of incarceration imposed by the trial judge.  The Crown requested only that the respondent be incarcerated for the remainder of his conditional sentence.  Since the respondent has already served his conditional sentence in its entirety, I would stay the service of this sentence.

Appeal dismissed, L’Heureux-Dubé, Bastarache and Binnie JJ. dissenting.

Solicitor for the appellant:  Manitoba Justice, Winnipeg.

Solicitor for the respondent:  Martin D. Glazer, Winnipeg.

Solicitor for the intervener the Attorney General of Canada:  The Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.