R. v. Davis (N.A.), 2014 ABCA 115

• Judge: Côté, Hunt and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 18, 2014
• Citations: 2014 ABCA 115;(2014), 572 A.R. 237

R. v. Davis (N.A.) (2014), 572 A.R. 237; 609 W.A.C. 237 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.003

Her Majesty the Queen (appellant) v. Nicola Alexandra Davis (respondent)

(1301-0289-A; 2014 ABCA 115)

Indexed As: R. v. Davis (N.A.)

Alberta Court of Appeal

Côté, Hunt and Paperny, JJ.A.

March 31, 2014.

Summary:

The accused, a lawyer, pleaded guilty to three counts of false pretences, two of fraud and one of theft over $5,000. She was sentenced to 18 months' imprisonment - see [2013] A.R. Uned. 672. The Crown appealed the sentence.

The Alberta Court of Appeal allowed the appeal and imposed a sentence of four years' imprisonment on all counts to be served concurrently.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - The accused, a lawyer, fraudulently discharged three mortgages worth almost $1,500,000 and obtained three additional mortgages valued at over $1,000,000 - While acting as executor, she stole a $330,000 property from the estate - Conduct was prolonged and deliberate - Involved forgery - Despite opportunities to desist, she was undeterred - She pleaded guilty to three counts of false pretenses, two of fraud and one of theft over $5,000 - Sentenced to 18 months' imprisonment - The Crown appealed - The Alberta Court of Appeal allowed the appeal and imposed a four year sentence - The sentencing judge erroneously concluded that the proper sentencing range was two years - The court stated that the accused's position as a Law Society member allowed her to perpetuate this fraud - The damage to victims and to the reputation of the legal profession could not be understated - Her conduct was highly blameworthy - See paragraphs 22 to 39.

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - The accused, a lawyer, defrauded and stole almost three million dollars from multiple victims over a nine month period - In sentencing the accused for theft and fraud to a total of 18 months imprisonment, the Provincial Court Judge considered the fact that she had pleaded guilty and was a single mother of two young boys as mitigating factors - The Crown appealed - The Alberta Court of Appeal allowed the appeal and imposed a four year sentence - The court held that the mitigating factors found by the sentencing judge were overemphasized and, in some cases, incorrect - While the guilty plea was mitigating, it was two years after the fact and in the face of a strong Crown case - Being a single mother was not mitigating and in fact the children's father was caring for them while the accused was incarcerated - See paragraph 28.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - Sentencing ranges - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5831.1 ].

Criminal Law - Topic 5869

Sentence - False pretences - [See Criminal Law - Topic 5831.1 ].

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 20].

R. v. Singleton (M.K.), [2011] B.C.T.C. Uned. 1838; 2011 BCSC 1838, refd to. [para. 30].

R. v. Bracegirdle (S.) (2004) 354 A.R. 313; 329 W.A.C. 313; 2004 ABCA 252, refd to. [para. 32].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329; 2007 ABCA 381, refd to. [para. 32].

R. v. Zenari (R.) (2012), 536 A.R. 224; 559 W.A.C. 224; 2012 ABCA 279, refd to. [para. 32].

R. v. Ryan, [1976] 6 W.W.R. 668; 1 A.R. 355 (C.A.), refd to. [para. 33].

R. v. McLellan (M.F.) (2012), 298 O.A.C. 243; 293 C.C.C.(3d) 326; 2012 ONCA 717, leave to appeal refused (2013), 460 N.R. 398 (S.C.C.), refd to. [para. 33].

R. v. Mitton (1987), 74 N.B.R.(2d) 448; 187 A.P.R. 448 (C.A.), refd to. [para. 33].

R. v. Rusnak (O.) (1992), 135 A.R. 220; 33 W.A.C. 220; 1992 ABCA 351, refd to. [para. 33].

R. v. Manolescu (J.N.) (1997), 202 A.R. 241; 35 W.C.B.(2d) 431 (Prov. Ct.), refd to. [para. 33].

R. v. Shandro (1985), 65 A.R. 311; 42 Alta. L.R.(2d) 331 (C.A.), refd to. [para. 33].

R. v. Oliver, [1977] 5 W.W.R. 344; 1 W.C.B. 460 (B.C.C.A.), refd to. [para. 33].

R. v. Wood (J.D.) (2001), 191 N.S.R.(2d) 201; 596 A.P.R. 201; 2001 NSCA 38, refd to. [para. 33].

R. v. Rosenfeld (S.M.) (2009), 248 O.A.C. 119; 94 O.R.(3d) 641; 2009 ONCA 307, leave to appeal refused (2010), 404 N.R. 386 (S.C.C.), refd to. [para. 33].

R. v. Cowan, 1987 CarswellBC 1317 (C.A.), refd to. [para. 33].

R. v. Scherer (1984), 5 O.A.C. 297; 16 C.C.C.(3d) 30 (C.A.), leave to appeal refused (1984), 58 N.R. 80; 7 O.A.C. 80 (S.C.C.), refd to. [para. 33].

R. v. Liknaitzky (1981), 34 A.R. 124; 17 Alta. L.R.(2d) 381 (Q.B.), refd to. [para. 33].

R. v. Gruson, [1963] 1 C.C.C. 240 (Ont. C.A.), refd to. [para. 33].

R. v. Seremet (J.) (2013), 562 A.R. 278; 2013 ABQB 291, refd to. [para. 34].

R. v. Chamczuk (E.M.) (2010), 499 A.R. 212; 514 W.A.C. 212; 2010 ABCA 380, refd to. [para. 34].

R. v. Ellis (T.L.) (2008), 428 A.R. 334; 2008 ABQB 40, refd to. [para. 34].

R. v. Steinhubl (J.K.) et al. (2013), 542 A.R. 207; 566 W.A.C. 207; 2013 ABCA 39, refd to. [para. 34].

Counsel:

C.E. Rideout, for the appellant;

A. Attia and D.R.P. Lee, for the respondent.

This appeal was heard on March 18, 2014, before Côté, Hunt and Paperny, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court in Calgary, Alberta, on March 31, 2014.