CITATION: R. v. Gibb 2015 ONSC 8113

Court File No. 201/11

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JAMES GIBB

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE D.K. GRAY

on December 11, 2015, at MILTON, Ontario

APPEARANCES:

H. Apel Counsel for the Crown

D. Sahulka Counsel for James Gibb

R E A S O N S F O R S E N T E N C E

GRAY, J. (Orally):

It is now my task to impose the appropriate sentence on Mr. Gibb following his conviction for fraud that was made on August 4th, 2015, after a three-day trial in May of 2015. It was found by me that Mr. Gibb had defrauded Daniel Avon of a total of $200,000.

The Crown requests that Mr. Gibb be imprisoned for three years, and in addition receive a fine in lieu of forfeiture pursuant to s. 462.37(3) of the Code in the amount of $200,000, payable within three years, or in default an additional period of imprisonment on Mr. Gibb of two years in jail pursuant to s. 462.37(4). The Crown also requests a restitution order.

In coming to my determination I must take into account the appropriate principles of sentencing, most of which are set out in the Criminal Code. S. 718 of the Code provides as follows:

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.

S. 718.1 provides as follows: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” S. 718.2, and here I will paraphrase, requires that the court, in imposing a sentence, increase or reduce the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

There are a number of mitigating factors here. Mr. Gibb is 60 years of age. He is close to his family, particularly his mother, and his adult son, by whom he is employed at least on some basis. There were filed with the court a number of very helpful reference letters that disclose that Mr. Gibb is held in high regard by a number of people, one of whom says that Mr. Gibb is very active in assisting elderly people in the community. Mr. Gibb attends church regularly, and filed with the court, as one of the reference letters, was a letter from the pastor of Mr. Gibb’s church.

Mr. Gibb, as a result of a previous conviction, was on a conditional sentence, and I am told by counsel for Mr. Gibb, without contradiction by the Crown, that Mr. Gibb at all times abided by all of the conditions set out in the conditional sentence order. As noted earlier, Mr. Gibb is gainfully employed and maintains employment through his son’s business. Mr. Gibb has suffered from the fact that he had to file for bankruptcy and still is an undischarged bankrupt.

There are a number of aggravating factors. First, the amount of the fraud is large; it is $200,000. The fraud was planned and deliberate; it was not a momentary aberration. There has been no restitution made to the victim.

There has obviously been a financial impact on the victim, which is not surprising having regard to the size of the fraud, although I note that the evidence at trial was to the effect that the victim was able to borrow the necessary money elsewhere, and I take it he has purchased his interest in the insurance brokerage that was the subject of evidence.

Of some controversy, with which I will deal now, is the question of whether prior convictions for Mr. Gibb can be taken into account, and whether they amount to aggravating factors.

Mr. Gibb was found guilty in 2013 of fraud, for which he was given 18 months in jail plus 24 months’ probation. In 2014 he was again convicted of fraud, for which he was given a conditional sentence of two years less a day and 24 months’ probation.

The events giving rise to the first conviction, that is the one that was imposed in 2013, arose in August of 2003, and Mr. Gibb was sentenced for that offence in September of 2013. The events giving rise to the second conviction, that is the 2014 conviction, occurred in 2003 and 2004, and he was sentenced for the offence in October of 2014.

With respect to the matter that is before me today, the events giving rise to the offence occurred in 2007 and 2008, and Mr. Gibb is being sentenced today.

Mr. Sahulka for Mr. Gibb argues that I must regard Mr. Gibb as a first offender, and thus I cannot take into account the earlier convictions, since they were not in place when he committed the offence in 2007 and 2008.

The Crown argues that, while Mr. Gibb is lawfully to be considered a first offender, nevertheless I can consider the earlier convictions because they disclose a pattern of behaviour and that the facts giving rise to the current conviction did not constitute an isolated incident, and thus according to the Crown I can consider the prior convictions as an aggravating factor. This is an important issue on which there is some authority, which I will now discuss.

The bottom line is that I agree with the Crown’s submission, primarily for the reasons given by the New Brunswick Court of Appeal in R. v. Andrade (2010) 2010 NBCA 62, 260 C.C.C. (3d) 353. I should say that the proposition advanced by Mr. Sahulka has been known historically as the “Coke rule”, the effect of which is accurately described by Mr. Justice Robertson for the Court in Andrade at para. 2 as follows:

The principal ground of appeal is tied to the application of the “Coke rule” laid down by Sir Edward Coke (Institutes of the Laws of England, 1628). Narrowly stated, the Coke rule (pronounced Cook) is to the effect that a harsher sentence for a second offence cannot be imposed unless, at the time the second offence was committed, the offender had already been convicted with respect to the first.

I should say that that is precisely the proposition that is being put to me by Mr. Sahulka. At para. 3 Justice Robertson notes as follows:

Originally, the rule was formulated as a common law canon of statutory construction applied in cases where a penal statute (e.g., the Criminal Code) imposes a harsher (mandatory quantum or mandatory minimum) sentence for a second or subsequent offence. As this case does not involve a statutorily imposed sentence with respect to a second or subsequent conviction for the same offence, we are left to decide whether the Coke rule should be extended to sentencing cases generally. While a few courts have assumed this to be the law, I conclude any extension of the rule is unwarranted.

At para. 12, Justice Robertson noted the facts that gave rise to the argument with respect to the applicability of the Coke rule as follows:

Turning to the facts of the present case, the appellant committed the “first” offence in April of 2009. He was convicted and sentenced for that offence on September 15, 2009. However, the “second” offence was committed on June 3, 2009, three and one-half months before the conviction and sentence was imposed for the “first” offence. Hence, it would appear the facts of the present case fall within the ambit of the Coke rule. The second offence was committed prior to the conviction and sentencing with respect to the first. Correlatively, the trial judge should not have been influenced by the conviction under s. 271(1)(a) when imposing a fit sentence under s. 266(a). This is true provided the Coke rule applies.

At para. 13, Justice Robertson noted that the Coke rule had been recently affirmed by the Supreme Court of Canada in R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47. He also referred to the decision of the Ontario Court of Appeal, which had been quoted with approval by the Supreme Court of Canada in Skolnick, in R. v. Cheetham, [1980] O.J. No. 721, and at para. 14 he stated as follows:

The underlying policy rationale for the rule is well-accepted and best stated by Blair J.A. in R. v. Cheetham: “It is expected that the conviction and penalty for the first offence and the peril of a more severe penalty for a subsequent offence will be present in the mind of the offender and guide his future conduct” (para. 19). As would be expected, however, the rule is not absolute. The conviction for the earlier or first offence can be used for other sentencing purposes. For example, even though the first offence cannot be considered when imposing a sentence with respect to the second, the conviction on the first may be used to counter, for example, any presumption that the offender is a good candidate for a rehabilitative sentence.

At para. 15, Justice Robertson noted that there were “general [comments] in R. v. Skolnick that, if read in isolation, might lead one to conclude that the Coke rule is more than a canon of statutory interpretation.” He stated,

For example, at page 7 where Laskin C.J., writing for the Supreme Court states: “The conclusion I draw from the canvass of the authorities is that the Coke rule or, if I may so, the policy it reflects, has been too long embedded in our law to be ousted except by clear statutory provisions or, at the most, by necessary implication.”

At para. 18, Justice Robertson again noted:

In summary, the Coke rule was formulated as a common law principle of statutory interpretation applicable to penal statutes that provide harsher penalties for second and subsequent offences [and after referring to case law, he continued.] The question which remains is whether the Coke rule should be extended so as to become a general rule or principle of sentencing.

And at paras. 19 and 20, he proceeded to answer that question in the negative, and at para. 20 he said,

With great respect, it seems to me that there is no need to extend the Coke rule beyond its original purpose for the following reason. In short, the law required a simple and expedient method for determining what qualifies as a second or subsequent offence. The rule does just that. Admittedly, it favours the offender but this is so because of the mandatory imposition of a fixed or minimum sentence; one that removes the element of discretion so as to impose a sentence that the court might not otherwise have imposed. On the other hand, there is no mandatory rule or principle that second or subsequent convictions for the same offence must attract a harsher sentence. Courts retain the discretion to decide whether prior convictions will be treated as an aggravating factor. Typically, a subsequent conviction will be viewed more seriously because of an earlier conviction but it does not automatically follow this is true in all cases. Moreover, the sentencing judge will be guided by the jump principle, sometimes called the step principle, which contemplates a progression in the length of sentences imposed in the event of recidivism for the same offences. One of the concerns of the court is to ensure that the offender is not being re-punished for past offences.

After referring to case law, he then continued,

In my view, the notion that the prior conviction should not be treated as part of the offender’s criminal record for sentencing purposes, because he or she was not properly forewarned before committing the second or subsequence offence, is a theoretical construct too far removed from the realities of what is in the minds of repeat offenders and the purpose underlying the Coke rule. What is or is not an aggravating factor and how one should deal with the offender’s prior criminal record is a matter [best] left to the sentencing judge having regard to the factual matrix under consideration.

As discussed by the court in Andrade, in my view the so-called Coke rule does not prevent me from considering the prior convictions as an aggravating factor in these circumstances. In my view, they show a pattern of behaviour and they show that the incident or incidents that gave rise to the conviction here were not isolated in the scheme of things as they relate to Mr. Gibb.

Having considered the aggravating and mitigating factors here, I think a period of incarceration is called for. The fraud was a large one, it was planned and deliberate, there has been no restitution, the prior convictions show a pattern of conduct. The facts of this case are not isolated.

Denunciation and deterrence in these circumstances are important factors, and in view of the specific facts of this case, a conditional sentence would not be appropriate. I agree with the Crown’s submission that a three-year term of imprisonment is appropriate.

The defence did not disagree during submissions that the imposition of a fine in lieu of forfeiture would be appropriate. Therefore, I impose a fine on Mr. Gibb of $200,000, which will be payable within two years of his release from custody, and in default of payment Mr. Gibb will be subject to a further custodial term of two years in prison. I also impose a restitution order, as did Justice Daley in his sentencing decision delivered in 2014. I will read my endorsement:

“For reasons delivered orally, Mr. Gibb is sentenced to three years’ imprisonment. He is ordered to make restitution to Daniel Avon in the amount of $200,000. Pursuant to s. 462.37(3) of the Code, Mr. Gibb shall pay a fine in lieu of forfeiture in the amount of $200,000 to be paid within two years of his release from custody. If the fine is not paid he shall, pursuant to s. 462.37(4)(a)(v), be imprisoned for a further two years.” Anything else I need to deal with?

MR. APEL: Not by the Crown.

THE COURT: All right.

MR. SAHULKA: No, Your Honour. Thank you.

THE COURT: Thank you.