ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-12563
DATE: 2014/03/17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PHILIP OWEN

Accused

Matthew Geigen-Miller, for the Crown

James Harbic, for the Accused

DECISION ON SENTENCING

RATUSHNY J.

BACKGROUND

[1] After a jury trial before McMunagle J. of this Court, Mr. Owen was convicted of four offences: defrauding his mother, Barbara Owen, of a condominium parking space having a value over $5000.00 contrary to s. 380(a) of the Criminal Code; perjury in the form of the making of a false land transfer tax affidavit contrary to s. 132 C.C.; using a forged document, a transfer deed of land, as if it were genuine contrary to s. 368(1)(a) C.C.; breach of his recognizance regarding keeping the peace and being of good behaviour contrary to s. 145(3) C.C.

[2] A sentencing hearing was held before McMunagle J. on June 18, 2013 and sentencing submissions before him were completed. Justice McMunagle adjourned this matter to July 2, 2013 to deliver his sentencing decision.

[3] Subsequent to the sentencing hearing, Justice McMunagle was unable to continue the proceeding and, pursuant to s. 669 of the Criminal Code, it has been continued before me for sentence to be imposed.

[4] For that purpose I have read the transcripts of the proceedings before the jury and of counsel’s sentencing submissions, the exhibits filed on sentencing, the submitted case law, the Presentence Report and the Victim Impact Statements.

[5] On June 18, 2013, McMunagle J. agreed to the Crown’s request to conditionally stay the conviction under s. 368(1)(a), the third offence referred to above, in accordance with Kienapple principles: R. v. Kienapple, [1975] 1 S.C.R. 725.

[6] The sentencing involves, I agree with the Crown, three offences committed as part of one transaction on December 2, 2009, namely the accused’s defrauding his elderly mother of her condominium parking space, his perjury in swearing a false affidavit for the purpose of transferring that parking space (and her condominium unit as explained below) and his breaching of a recognizance by being found to have committed those offences.

THE FACTS

[7] The jury heard of dysfunctional family dynamics between the accused who had been in his early 50s at the time of the offences in December 2009, his sister Pamela who was then in her late 50s, and their mother, Barbara Owen, who had been diagnosed a few months earlier in September 2009 with having Alzheimer’s-type dementia and not able to care for herself or live independently.

[8] The accused had lived with his mother in her Ottawa condominium unit between 1989 and June 2009, a 20-year span, until he was arrested in June 2009 as a result of an assault incident involving his sister and mother. He pleaded guilty in August 2010 to three offences: assault, damaging his sister’s cell phone and breaching his bail conditions by contacting his mother in September 2009 in an effort to get her pension cheques redirected, as explained below. He was given a conditional discharge and probation. He said he went to live at a shelter. He said he had no money and agreed that after he left the condominium, several thousand dollars were withdrawn from the joint bank account he had with his mother but that he had done nothing illegal and the money went into a GIC earning interest. Barbara Owen died in 2011.

[9] The accused testified that at the time of the assault incident in June 2009 he had been planning to move out of his mother’s condominium to be with his wife at a nearby apartment. His wife had just come to Ottawa from Tokyo and they had wanted their own place.

[10] The accused told the jury that his sister Pamela had had almost no involvement in their mother’s life before his sister had retired around 2008 but that after that time she started “taking over”. The accused testified that until his arrest in June 2009, he had looked after all his mother’s finances, had attended condominium board meetings for her and had power of attorney over her bank accounts. He said his mother had signed a note in March 2009, made an exhibit at trial, saying she agreed to transfer the ownership of her condominium unit to him. He said it was not until the fall of 2009 that he found a Deed to the unit and its parking space signed by his mother in 2002 conveying the property to him. It had been forgotten in a box of his possessions. It was this Deed that he registered on December 2, 2009, intending that the unit and its parking space be transferred to him. By an inadvertent mistake in the description of the land, only the parking space was conveyed.

[11] After the Deed was registered in December 2009, he had the locks changed on the condominium unit and planned to take possession of it. He said that after all, his mother had gifted it to him. He believed it was her wish for him to have it. He denied the Deed was forged or that he had registered it to try to stop his sister from selling the unit. He said he had planned on living in it, not selling it.

[12] The jury, however, accepted other evidence establishing that the Deed and its accompanying land transfer tax affidavit had not been signed by his mother and that the accused had used a forged document to convey the property. They did not accept his denial of any wrongdoing as they found him guilty of all of his charged offences.

[13] The accused testified in examination in chief that to his knowledge his mother didn’t have a will and that is why she had signed the Deed in 2002. In cross-examination he was confronted with his mother’s handwritten will dated 1996 that he himself had appended to his own affidavit sworn in April 2010 and filed in a civil action involving his mother’s estate. The accused said he only learned of this will in the fall of 2009 from his brother. He disagreed that he knew his mother’s will divided her estate equally among her children.

[14] The accused’s sister, Pamela Owen-Lafrance, together with other independent evidence, told a different story of the accused’s involvement in 2009 in their mother’s life. In July 2009, Pamela requested and had a geriatric assessment on her mother performed on an urgent basis. The report from that assessment said her mother could not live alone without considerable support. In July 2009 her mother gave Pamela powers of attorney for personal care and for property. A referral was made to the family doctor. The family doctor said Barbara Owen had been a patient since 2001 but that her last medical visit had been in 2006. In September 2009 she diagnosed Barbara Owen as incapable of caring for herself. In October 2009 Pamela had her mother moved to a long-term care centre. Pamela testified that in consultation with her other brother, Victor Owen, who lived in Vancouver, British Columbia, they decided in October/November of 2009 to sell the condominium to help cover their mother’s care expenses.

[15] In 2009 Pamela saw her mother’s bank statements for a joint account she had with the accused. Pamela noticed what she described as “heavy withdrawals” from it and so opened up a separate bank account for her mother for her pension deposits. In September 2009 one of her mother’s pension cheques was not deposited. The accused agreed he had tried to divert his mother’s pension cheques, but that “it didn’t work.”

[16] In December 2009, Pamela learned the accused was planning to take possession of her mother’s condominium unit. She sent the accused a copy of her mother’s power of attorney and told him no one else owned the unit. Then, on the advice of her lawyer, she performed a title search of the property and saw the Deed and its attached affidavit. She contacted police. She confirmed there is an ongoing civil case as to who is entitled to the unit and the parking space.

[17] From the evidence before the jury as only briefly summarized above, I come to the following conclusions in respect of the accused’s three convictions.

[18] It is clear the jury did not accept the accused’s evidence. It is clear the accused repeatedly lied at trial to deny his offences. The Crown frequently contradicted him during cross-examination with other evidence. He contradicted himself. He was evasive. His testimony was not credible.

[19] A few examples suffice.

[20] First, he said someone had been cancelling his mother’s doctors’ appointments before the June 2009 assault incident. When confronted with Dr. Caron’s evidence that his mother had not been to an appointment since 2006, the accused repeated his assertion that someone was cancelling her appointments and it wasn’t his mum.

[21] Second, he could not explain why he had testified in examination in chief that he did not know of his mother’s 1996 handwritten will when confronted in cross-examination with his 2010 affidavit filed in the civil action that had attached to it a copy of that same will.

[22] Third, he agreed that in the same affidavit dated April 16, 2010 in the civil action he had denied assaulting his mother and sister in June 2009 and four days later on April 20, 2010 he had pled guilty to three offences in connection with that incident.

[23] Fourth, he denied in cross-examination that he had testified in examination in chief that he had registered the Deed to prevent his sister from selling the condominium unit but then agreed it could have been a contributing factor and added, “but no, my mother had already gifted it to me”.

[24] Fifth, he could not explain why the note was signed in March 2009 by his mother where she agreed to transfer the condominium to him when, according to him, the Deed had already been signed by her in 2002.

[25] Sixth, he could not explain why he told police in his June 2009 interview with them in connection with the assault incident that his mother’s name was on the Deed to the condominium unit, when his later story was that it was his name that was on the Deed signed in 2002 and registered in December 2009.

[26] Seventh, he agreed in cross-examination that he had only discovered the Deed amongst his belongings on December 11, 2009 and then could not explain why he had registered it nine days earlier, on December 2, 2009.

[27] I conclude there was abundant evidence for the jury’s verdicts.

THE ACCUSED

[28] Mr. Owen is 57 years of age. Before his April 2010 convictions in connection with the assault incident against his mother and sister, he had no criminal history. He is married and has a young daughter. He has an employment history, although at the time of his interview in March 2013 for the Presentence Report he had no permanent employment and indicated he was continuing to pursue his passion as a freelance photographer.

[29] He does not, unsurprisingly, have a good relationship with his sister. He is the youngest of his parents’ three children. He believes his sister Pamela is the source of all of his problems and describes her as dominating, over-powering and vengeful. The Presentence Report says the accused “vehemently maintains his innocence” and that he “declined to accept any responsibility, minimized the seriousness of the offence and deflected blame on others. Throughout the interview, the subject was fixated on his sister’s suitability as a witness and preferred discussing her contribution to the index offence rather than focus on his own actions.” His friend described his telling him that he does not understand why he is in the situation and he does not believe he did anything wrong.

[30] His sister Pamela described the accused to the report’s author as “vindictive, vengeful and manipulative.”

[31] The Presentence Report’s author described the accused as defensive, uncooperative and confrontational in his interview with her. He apologized to her by telephone the next day. She wrote that his previous response while under probation in connection with his conditional discharge was “terrible as he failed to acknowledge any wrong-doing and was persistent with his minimization of the offence.” His previous probation officer reported to her that the accused “had complete disregard for his authority and would continuously seek permission to see his mother from other probation officers during his absence, fully aware that he was prohibited.” He informed the report’s author that the accused would not be suitable for any form of future community supervision given his complete denial and unwillingness to access any services, including psychological services when offered.

[32] The Presentence Report concludes with comments about the accused’s “distorted sense of reality,” his demonstrated “disregard for authority in the past and his attempts to manipulate other probation officers by seeking their permission knowing that his supervising officer had denied such requests,” and concerns that he may continue with such non-compliant behaviour if given further community supervision.

[33] At the end of the sentencing submissions before McMunagle J. on June 18, 2013, the accused spoke, saying: “I have extreme remorse, as I have endured four years of litigation after my sister assaulted me. I love my mother. I wish no one harm. And I thank you very much.”

[34] During sentencing submissions the Crown indicated that Barbara Owen’s condominium had sold for $334,000.00 together with the parking space for $25,000.00 and as the accused has continued his civil claim that he is entitled to these sale proceeds, they are currently being held in trust.

ANALYSIS

[35] The Crown submits an 18-month term of incarceration for the three offences followed by 2 years of probation is required.

[36] Defence counsel requests an 18-month conditional sentence including 3 months of house arrest and a non-association condition regarding his sister.

Aggravating Factors

[37] From the evidence at trial and sentencing, I assess the accused as being a family member who regards himself as unappreciated by his siblings for the 20 years he lived with his mother and looked after her needs, and who feels wronged by them in that he believes his mother wished him to have the residence he had lived in for so long. When he perceived his sister to be interfering with his plans to keep the residence for himself, his perspective on what was right and wrong began to warp and he allowed himself to descend into committing criminal acts to try to regain control of what he felt was his entitlement, his mother’s residence.

[38] Of course the immediately obvious problems with this perception of his situation was that he did not own the residence and beginning in October 2009 when his mother was moved to a care facility, extra funds were needed to help pay for her care. Pamela testified that in addition to her mother’s pension amounts that went towards care expenses, she herself had to contribute some of her own funds. In October or November of 2009, just around the time of her mother’s move, she testified that she, her other brother and her mother decided to sell the condominium unit to help cover those extra care expenses.

[39] There is no evidence the accused considered his mother’s financial needs after she was moved out of her residence. Instead, he proceeded to do what he felt he was entitled to do so as to secure her residence for himself. He chose to ignore the reality that his mother had heightened financial needs, that he could not get his mother to transfer her residence to him, that his sister had a power of attorney so as to look after their mother’s affairs including her property and that there was a handwritten will from his mother indicating her wishes to have her estate divided equally between her surviving children.

[40] It is in all of these circumstances that I conclude the accused committed the offences, including the perjury by affidavit, for his intended personal benefit and financially abused an elderly family member. As such, he committed a serious breach of trust, a serious breach of his fiduciary duty to his mother. All of these factors serve to highlight the seriousness of his actions and to aggravate sentence: s. 718.2(a)(iii) C.C.; R. v. C.D., [2000] O.J. No. 1668 (OCA).

[41] There are other aggravating factors. The accused confirmed he had intended to transfer not just the parking space but also the condominium unit to himself, representing approximately $359,000.00 and a significant portion of his mother’s life savings. The offences were planned and particularly regarding the issue of the form of the 2002 Deed and it being able to be registered on title, they had a degree of sophistication to them. The accused has exhibited a defiant and non-compliant attitude toward probation services and also to the Court in connection with his testimony. His record of past supervision by probation services is poor and he was on release for related offences when he committed his breach of recognizance. The accused continues to the present time to give effect to the fraud, as evidenced by his comments captured in the Presentence Report. His focus remains on his sister, as that report commented, and he maintains she is the one responsible for his situation.

[42] It is clear that the accused accepts no responsibility, acknowledges no harm, has no remorse and has gained no insight whatsoever into his wrongdoings.

Mitigating Factors

[43] There are circumstances that serve to mitigate sentence. The accused had no criminal record until he was in his fifties. He is educated and has a consistent work record and is capable, as he has done for much of his life, of living a law-abiding pro-social lifestyle. His prior record is minor though related and limited to two incidents close in time to each other. There is an absence of any further criminal charges while on release.

Sentencing Objectives

[44] The sentencing objectives engaged by the circumstances of the offences and of the offender are denunciation, deterrence both general and specific, and rehabilitation, and in that order.

[45] It is particularly problematic for the purposes of rehabilitation that the accused continues to be defiant and without insight and has been unwilling to access any services including psychological services when offered under his previous probation order.

The Seriousness of the Offences

[46] The accused should understand that his offences are not just part of a private family feud.

[47] He has committed the serious offence of perjury that has been characterized as an offence that strikes at the heart of the administration of justice: R. v. Zabor, [1982] O.J. No. 186 (OCA), at para. 4 (referring to an attempt to mislead and “thwart” the administration of justice); C.D., supra, at para. 7; R. v. Corbett, 2006 BCCA 257, at para. 3. Each of these cases involved perjury by affidavit.

[48] In Zabor, the trial court had imposed a 2-year sentence of incarceration that the appeal court said was a fit sentence apart from the offender’s serious health issues (at para. 5). Because of those health issues, the 2-year sentence was set aside, sentence was suspended and 3 years of probation imposed. There had been a trial and Mr. Zabor was 57 years of age with no prior record. He had uttered a forged will and sworn a false affidavit that the will was genuine.

[49] In C.D., the offender had been convicted of sexual assaults and swore a false affidavit regarding his employment opportunity in support of his application for release pending his appeal. He was sentenced to one year of incarceration to be served consecutively to his other sentences.

[50] In Corbett, the offender had sworn a false