COURT OF APPEAL FOR ONTARIO
DATE: 20000405
DOCKET: C30583
RE: HER MAJESTY THE QUEEN (Respondent) v. BRUCE
McCAULEY (Appellant)
BEFORE: LASKIN, MOLDAVER and MacPHERSON JJ.A.
COUNSEL: Christopher Bentley
For the appellant
Anthony Graburn
For the respondent
HEARD: March 30, 2000
On appeal from conviction and sentence by Kennedy J., with a
jury, dated May 14, 1998 and September 17, 1998 respectively.
E N D O R S E M E N T
[1] The appellant appeals his conviction for fraud and his
sentence of 18 months in jail. The appellant acknowledges that
the undisclosed conflict of interest amounted to a dishonest act.
The issue on the conviction appeal is whether the trial judge
properly instructed the jury on deprivation.
[2] The trial judge told the jury that deprivation could occur
if the complainant, Conference Cup, ordered goods from the
appellant’s company, Dezine Engineering and, moreover, that it
did not matter if the goods were cheaper, better and sold faster,
which was the qualification insisted on by the appellant.
[3] In our view, the trial judge’s instruction on deprivation
was correct. It was consistent with the Supreme Court of
Canada’s decision in Theroux and this court’s decision in
Knowles. The conviction appeal therefore fails.
[4] On sentence, the appellant asked for a conditional sentence
or a reduction in the custodial term. He submits that the trial
judge erred by imposing a significantly greater sentence than on
the co-accused, Ridout, and by failing to recognize that
denunciation and deterrence could also be achieved by a
conditional sentence.
[5] We decline to interfere with the trial judge’s discretion to
refuse to give a conditional sentence. This fraud involved a
considerable amount of money, was committed over an extended
period of time, and amounted to a breach of trust. However, we
think that the trial judge failed to give adequate recognition to
the principle of disparity. The application of that principle
warrants a reduction in the appellant’s custodial term. The co-
accused Ridout received only a 90 day intermittent sentence.
Although Ridout pleaded guilty and co-operated with the
authorities, unlike the appellant he had a previous record, and
he appeared to have benefited as much from the fraud as did the
appellant. Taking into account all the relevant circumstances,
in our view a fit sentence for the appellant is 9 months.
[6] Accordingly, the conviction appeal is dismissed. Leave to
appeal sentence is granted, the sentence appeal is allowed, and
the sentence is reduced to 9 months.
“J.I. Laskin J.A.”
“M.J. Moldaver J.A.”
“J.C. MacPherson J.A.”