R. v. Mastop, 2013 BCSC 738 (CanLII)
Lien vers la décision
[61] In attempting to assess the seriousness of Mr. Mastop's offence, and to place it in a setting where the result is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, as required by s. 718.2, decisions in other cases are often helpful.
[62] In this regard, I agree with counsel for Mr. Mastop that many of the cases respecting lawyers who have committed criminal offences illustrate certain principles, but are often of limited assistance on their facts.
[63] Cases the Crown has tendered include R. v. Bunn, 2000 SCC 9 (CanLII), [2000] 1 S.C.R. 183, a case in which a lawyer stole about $86,000 in trust money. There, the Supreme Court of Canada upheld a conditional sentence of two years less one day. In that case Bastarache J., (in dissent), observed:
[J]udges 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. . .
[64] In R. v. Doiron, 2005 NBQB 147 (CanLII), 2005 NBQB 147, a prominent criminal lawyer was convicted of obstruction of justice in offering a bribe to a witness to keep him from testifying against his client in a prospective arson trial. In imposing a four‑and‑a‑half year sentence, the court, per Rideout J. observed:
10 In this case there is an added dimension which makes the matter even more serious. Mr. Doiron is a lawyer. His is one of the pillars supporting our system of justice. He is an officer of the Court; he holds a position of trust within our system of justice. He took an oath to uphold justice when he became a lawyer.
. . .
20 In my opinion Mr. Doiron's conduct must be denounced and it must be denounced loudly. Also the sentence must send a message that obstruction of justice will not be countenanced. The sentence must deter the offender and others. The sentence must be commensurate with an acknowledgement of the harm done to the community and to our system of justice.
[65] In R. v. Sweezey, 39 C.C.C. (3d) 182, a lawyer counselled a witness to be forgetful and evasive when giving evidence during a review of a refusal to issue a firearms permit. The Court, per Chief Justice Goodridge, observed:
There is no principle of law that requires that a person who has more to lose if he is convicted of a criminal offence than another should receive a lighter sentence. The court cannot, however, completely disregard the collateral circumstances of a conviction and the circumstances that led up to the conviction.
Protection of the public is the underlying consideration. This calls for an appropriate blending of deterrence and rehabilitation.
It is virtually imperative that a lawyer who is convicted of an offence such as this should serve a period of time in prison and, while rehabilitation is nevertheless important, it is not of such importance in a case like this that it would justify the imposition of a non-custodial sentence.
Specific deterrence is not a major consideration. If the appellant is ever again in a position to commit a crime such as that of which he has been convicted it is unlikely that he will do so. He must surely have learned his lesson.
The principles of general deterrence are as well served in this case by a shorter sentence as by a longer sentence. A lawyer is not likely to be less persuaded by a 12 month sentence than by an 18 month sentence to counsel the obstruction of justice.
[66] The sentence that had been imposed by the trial judge in that case was accordingly reduced from 18 months to 12 months, followed by two years probation.
[67] In R. v. Li, [2004] O.J. No. 6269, a criminal lawyer was convicted of smuggling heroin into prison and passing it to an inmate. The court, per Caputo J., observed at para. 11:
11 Lastly, there is the very serious aggravating factor and that is Mr. Li using his position of trust as a barrister and solicitor to facilitate this offence. But for his privileged status, Mr. Li would never have been able to commit this crime and that status in many other respects made Mr. Li a privileged member of our society, a member of an honourable profession which allowed him to earn a very good living, help others, and realize his dreams.
[68] Justice Caputo went on to give excerpts from Bunn and Sweezey, which I have already alluded to in these reasons. Mr. Li was sentenced to four years in prison for trafficking in heroin.
[69] R. v. Calder, 2011 NSSC 312 (CanLII), 2011 NSSC 312, was a similar case of a lawyer who smuggled drugs into a prison. The court quoted Li, Bunn, and Sweezey. The court, per Justice Coady, specifically addressed and rejected the availability of a conditional sentence, due in part to what he called the "trust factor":
79 Ms. Calder's case is so much more serious than the typical street transaction because of the trust factor and the fact the correctional centre was involved. That is exacerbated by the administration of justice factor i.e., maintaining the confidence of the public by guarding against any impression that we take care of our own.
80 I do feel that Ms. Calder should receive some credit for the mitigating factors that I canvassed earlier in this decision. Especially the fact that she has lost so much.
[70] In that case the court imposed a sentence of 30 months
Aucun commentaire:
Publier un commentaire