Court File and Parties

COURT FILE NO.: CR 169-18 DATE: 20230207 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Allan Fischer

BEFORE: Justice Spencer Nicholson

COUNSEL: Adam S.J. Campbell, for the Crown Allan Fischer, self-represented (not appearing)

HEARD: February 7, 2023

REASONS FOR ABATING THIS CASE PRIOR TO SENTENCING

NICHOLSON J. (ORALLY):

[1] By reasons delivered on June 24, 2022, I convicted Allan Fischer of defrauding Canada Post Corporation between April 17, 2013 and August 24, 2016 contrary to s. 380 (1) (a) of the Criminal Code.

[2] He was to be sentenced on November 23, 2022. On that date, Mr. Fischer did not appear, and the Crown informed the court that there was suspicion that Mr. Fischer had elected to proceed with Medical Assistance in Dying, which possibility he had alluded to during sentencing submissions.

[3] After several attendances, the Crown has now produced to the court a Proof of Death Certification from Woodland Cemetery. This court must conclude that Mr. Fischer is now deceased.

[4] The Crown has provided cases with respect to how to deal with the circumstances where a person convicted of an offence has died prior to sentencing. In Caddedu and the Queen, (1983), 1983 CanLII 1763 (ON CA), 41 O.R. (2d) 481, the Ontario Court of Appeal, in the context of an appeal, the court held that even though the appeal had been heard, the death of the respondent meant the appeal had abated. The general principle is that an appeal abates where the person charged, or the subject of the proceedings has died pending an appeal. In only exceptional circumstances are the judgments still delivered.

[5] In R. v. Lewis [1997], B.C.J. No. 2339, the British Columbia Court of Appeal, again in the context of an appeal, relying on Caddedu, came to the same conclusion where the accused died before he could be sentenced. That appeal was abated.

[6] At the trial level, in a 1993 case from London, Justice McDermid decided in R. v. Ssenyonga, [1993] O.J. No. 3273, that the death of the accused before the end of a criminal trial abated the trial. The need to punish the accused and protect the public became academic upon the death of the accused. I note that Justice McDermid’s analysis in that case is quite fulsome. I follow that case and its logic in its entirety.

[7] This precise situation arose in R. v. Neufeldt, 2005 ABPC 163, 2005 CarswellAlta 1504, a case from Alberta Provincial Court. There the defendant died after being convicted and before sentencing. The court there came to the same conclusion and declined to issue its sentencing reasons.

[8] There is no benefit to the public in providing the Reasons for Sentencing that I had prepared to deliver on November 23, 2022. I note that those reasons have been sitting waiting for the outcome of the police investigation into Mr. Fischer’s present circumstances and would have been delivered otherwise.

[9] However, I do wish to note the following for the record. The primary purpose of sentencing in fraud cases is deterrence. To the extent that the public is aware of the circumstances of Mr. Fischer’s fraud, I wish to make clear that had he been sentenced, the sentence would have adequately fulfilled the primary goal of deterring future fraudsters. There would have been penitentiary time.

[10] This case was thoroughly investigated by the post office, law enforcement and then prosecuted with the resources of the Crown. Any person considering replicating the fraud that I found Mr. Fischer committed, should bear that in mind.

[11] Accordingly, I find that this matter has abated due to the death of Mr. Fischer.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: February 7, 2023