Case: R v Giesbrecht, 2016 MBCA 34 (CanLII)
Keywords: Fraud; Joint Sentencing Recommendation; Prearranged Funeral Services Act, CCSM c F200; R v. Sharpe (KD), 2009 MBCA 50 (CanLII); R. v. Sinclair (E.J.), 2004 MBCA 48 (CanLII); s. 742.3(1) of the Criminal Code
The Appellant, Mr. Harvey Giesbrecht, owns a funeral home in Beausejour; enters into contracts and receives $85,567.72 payment for prearranged funerals. Contrary to the Prearranged Funeral Services Act, CCSM c F200, the money received is not placed into trust accounts. Rather, Mr. Geisbrecht uses these funds to pay for personal living expenses and – incongruously – the funeral arrangements of others.
The Appellant enters guilty pleas to 14 charges of fraud under $5,000 and 7 charges of fraud over $5,000. Crown and defence counsel make the following joint sentence recommendation (“JSR”): jail sentence of two years less a day to be served conditionally in the community, followed by 3 years of supervised probation (addressing the accused’s ongoing obligation to pay restitution), and an additional “freestanding” order of restitution.
The sentencing judge expresses concerns; provides both Crown and defence counsel an opportunity to submit case law and provide further submissions, but ultimately rejects the JSR. The Appellant is sentenced to nine months incarceration followed by 2 years of supervised probation. Terms include:
- repayment of restitution in the sum of $500/month when employed;
- requirement to report to Probation Services for counselling;
- requirement to notify all prospective employers about his conviction; and
- an order of restitution in favour of the 21 victims.
The Appellant raises the following grounds of appeal:
- that the sentencing judge erred in refusing an adjournment request; and
- that the sentencing judge erred in rejecting the JSR.
The Court of Appeal allows the appeal on the second ground. For Burnett J.A., the JSR was the product of a true plea bargain, there was a quid pro quo, and the sentence contemplated fell appropriately within the sentencing range.
The sentencing judge rejected the JSR on the basis it was not the product of a “true plea bargain” – stating “the quid pro quo is lacking…as [the accused] was always intending to plead guilty” and, in any event, the proposed sentence was not “appropriate for these crimes” (see para. 10).
The Court of Appeal found the sentencing judge’s failure to accept the JSR problematic; affirmed the principle that judges should not depart from a JSR unless there are “cogent reasons for doing so”.
Burnett J.A. referred to the decision in R v Sharpe (KD), 2009 MBCA 50 (CanLII) at para 19, for the following summary of the law with respect to joint sentence recommendations:
- While the discretion ultimately lies with the court, the proposed sentence should be given very serious consideration.
- The sentencing judge should depart from the joint submission only when there are cogent reasons for doing so. Cogent reasons may include, among others, where the sentence is unfit, unreasonable, would bring the administration of justice into disrepute or be contrary to the public interest.
- In determining whether cogent reasons exist (i.e., in weighing the adequacy of the proposed joint submission), the sentencing judge must take into account all the circumstances underlying the joint submission. Where the case falls on the continuum among plea bargain, evidentiary considerations, systemic pressures and joint submissions will affect, perhaps significantly, the weight given the joint submission by the sentencing judge.
- The sentencing judge should inform counsel during the sentencing hearing if the court is considering departing from the proposed sentence in order to allow counsel to make submissions justifying the proposal.
- The sentencing judge must then provide clear and cogent reasons for departing from the joint submission. Reasons for departing from the proposed sentence must be more than an opinion on the part of the sentencing judge that the sentence would not be enough. The fact that the crime committed could reasonably attract a greater sentence is not alone reason for departing from the proposed sentence. The proposed sentence must meet the standard described in para. 2, considering all of the principles of sentencing, such as deterrence, denunciation, aggravating and mitigating factors, and the like. [emphasis added] (See v. Sinclair (E.J.), 2004 MBCA 48 (CanLII) at para. 17).
The evidence below, regarding the Appellant’s intentions in accepting the terms of the JSR, was mixed. Defence counsel indicated it was never the accused’s position that he would “challenge those charges”. That being said, both Crown and defence counsel made it clear the Crown anticipated difficulty prosecuting the case: “The issue really becomes which counts, how many counts the Crown could make out because of the passage of time and the deterioration of the case as a result of the passage of time” (see para. 13). Critically, defence counsel stated that, but for the JSR, the Appellant would not have entered guilty pleas.
Contrary to the sentencing judge’s finding, the Court of Appeal identified a clear quid pro quo in the case: uncertainty of conviction and the opportunity to avoid further delay and cost. Moreover, the Court noted the JSR had been “…negotiated by experienced and competent counsel and that the JSR contemplated an apparently viable plan for restitution (as well as an immediate payment of $4,000)”.
With respect to the appropriateness of the JSR sentence, the Court of Appeal confirms that, where a proposed sentence (reflected in a true plea bargain) also fails within the sentencing range established by precedent, it should not be rejected lightly. Cogent reasons must be provided for departing from the JSR – doing so simply because the sentencing judge wants to “send this guy to jail” is an error (see para. 16).
Where an accused forgoes his/her right to trial (does not “challenge those charges”) and enters a guilty plea – especially where the Crown’s case has some flaws or weaknesses – a more lenient sentence may be the appropriate outcome (at para. 17; see also Sinclair at para 13).
As such, the Court replaced the sentencing judge’s sentence with a conditional sentence of 2 years less a day with credit for time served (42 days) on a 1:1 basis. Since the accused paid full restitution, the Court declined to order the probationary period contemplated by the JSR but did impose a list of conditions on the Appellant (in addition to those set out in s. 742.3(1) of the Criminal Code), including 200 hours of community serve and payment of the victim surcharge of $200.
Counsel for the Appellant: Brian Beresh, Q.C. (Beresh, Aloneissi, O’Neill, Hurley, O’Keeffe, Millsap) Edmonton
Counsel for the Respondent: C. R. Savage (Manitoba Minister of Justice and Attorney General)