R. v. Dickhoff (K.J.), (1998) 172 Sask.R. 1 (CA)

• Judge: Cameron, Vancise and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 29, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 172 Sask.R. 1 (CA);1998 CanLII 12386 (BS SC);1998 CanLII 12386 (SK CA);130 CCC (3d) 494;172 Sask R 1

R. v. Dickhoff (K.J.) (1998), 172 Sask.R. 1 (CA);

   185 W.A.C. 1

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. OC.034

Kenneth James Dickhoff (appellant) v. Her Majesty the Queen (respondent)

(No. 7106)

Indexed As: R. v. Dickhoff (K.J.)

Saskatchewan Court of Appeal

Cameron, Vancise and Lane, JJ.A.

September 22, 1998.

Summary:

The accused was convicted of 11 counts of fraud contrary to s. 338(1)(a) of the Criminal Code.

The Saskatchewan Court of Queen's Bench, in a decision reported 150 Sask.R. 59, sentenced the accused to five years' imprisonment on each count, to be served concurrently. The accused appealed his conviction and sentence.

The Saskatchewan Court of Appeal, Cameron, J.A., dissenting as to sentence, dismissed the conviction appeal, allowed the sentencing appeal, set aside the sentence and substituted a sentence of two years' im­prisonment less a day.

Editor's note: for related cases involving the same accused see 147 Sask.R. 52; 147 Sask.R. 63; 147 Sask.R. 64; 150 Sask.R. 237

Courts - Topic 691

Judges - Disqualification - Bias - Rea­sonable apprehension of bias - An accused appealed his conviction on 11 counts of fraud, asserting, inter alia, that the trial judge's relationship with a former law partner who had represented a Crown witness raised a reasonable apprehension of bias - The Saskatchewan Court of Appeal held that there was no cogent evidence which would found a claim of reasonable apprehension of bias - The trial judge had been appointed to the bench 13 years before the trial and had no formal connection with his former law partner or that law firm since that time - The matters involving the legal work performed by the former partner did not arise until two years after the trial judge had been appointed to the bench - See paragraphs 7 to 14.

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - An accused was charged with fraud - In instructing the jury on reason­able doubt the trial judge stated that "... I use the words in their ordinary natural meaning, not as a legal term having some special connotation" and "[p]roof beyond a reasonable doubt has been achieved when you as a juror feel sure of the guilt of the accused" - The jury convicted the accused - The accused appealed, asserting that the trial judge's jury charge effectively reduced the standard of proof to a probability - The Saskatchewan Court of Appeal rejected the assertion - The charge when read as a whole, including the cautions and references to the presumption of inno­cence, the instruction that the burden of proof rests with the Crown throughout the trial and that the defence was obligated to prove nothing, could not have lead to the jury misunderstanding the standard of proof - See paragraphs 15 to 35.

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - An accused appealed his convic­tions for fraud, asserting, inter alia, that the trial judge failed to properly instruct the jury on the principle of reasonable doubt - The Saskatchewan Court of Appeal noted that the trial judge had not given prelimi­nary instructions to the jury regarding the presumption of innocence and reasonable doubt - The court stated that while pre­liminary instructions would have been preferable, the failure to give them was not fatal - See paragraph 20.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - An accused appealed his con­victions for fraud, asserting that the trial judge failed to fairly put the relevant issues to the jury - The Saskatchewan Court of Appeal rejected the assertion - The court stated that it should be remem­bered that the trial judge's obligation was not to fashion the most favourable charge to the defence, but to be fair and impartial - The trial judge did not minimize the defence's position and did not comment unfairly on the defence's case - Reading the charge as a whole, the trial judge properly instructed the jury on the law and did not breach his obligation and duty to fairly and impartially put to the jury the issues raised by both sides and the issues which fairly arose out of the evidence - See paragraphs 36 to 44.

Criminal Law - Topic 5653

Punishments (sentence) - Imprisonment and parole - House arrest - In considering conditional sentences and the objective of denunciation, the Saskatchewan Court of Appeal stated that "[i]t should not be lost sight of that when a denunciatory sentence is required it can be achieved without the necessity of a custodial sentence. Denunci­ation can be expressed by a sentence which deprives an offender of liberty outside prison such as electronically moni­tored house arrest." - See paragraph 72.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - [See Crimi­nal Law - Topic 5653 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5653 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - An accused was convicted of 11 counts of fraud involving Saskatchewan Trust - The accused had been the chief executive officer and a director of Saskatchewan Trust - Saskatchewan Trust anticipated losses of 1.5 million dollars - The fraudu­lent actions precipitated Saskatchewan Trust's receivership resulting in 700 or 800 shareholders losing their entire investment - Good candidate for rehabilitation - The Saskatchewan Court of Appeal held that the trial judge overemphasized general deterrence and the need to maintain the integ­rity of the administration of justice and reduced the accused's sentence from five years' imprisonment to two years less a day - Five years was a marked departure from the one to four years' ordinarily imposed - The court denied a conditional sentence, stating that the objectives of denunciation and general deterrence required a custodial sentence where the fraud involved a breach of trust motivated by greed - See paragraphs 45 to 77.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5832.1

Sentencing - Considerations on imposing sentence - Integrity of administration of justice - The Saskatchewan Court of Appeal stated that the need to maintain the integrity in and respect for the administra­tion of justice was too often used for the purposes of justifying long custodial sen­tences - While it was important that sen­tences achieve the primary objective of protection of the public, it was unnecessary to impose long custodial sentences in circumstances where maintaining the pub­lic's confidence in the administration of justice was the primary justification - See paragraph 55.

Criminal Law - Topic 5832.1

Sentencing - Considerations on imposing sentence - Integrity of administration of justice - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5836

Sentencing - Considerations on imposing sentence - Deterrence - Prevalence of similar crime - The Saskatchewan Court of Appeal stated that courts place too much emphasis on general deterrence in determining an appropriate or fit sentence - General deterrence was but one of the factors to be considered - This was not to say that deterrence was not a factor to be considered, indeed s. 718 of the Criminal Code listed deterrence as one of the objec­tives of sentencing - However, research did not indicate any evidence that the length of sentence was effective in reduc­ing the crime rate and the importance of this has been overstated - Evidence did support the general deterrent effect of the increased likelihood of apprehension which appears to be an important but overlooked element in reducing the crime rate - See paragraph 53.

Criminal Law - Topic 5836

Sentencing - Considerations on imposing sentence - Deterrence - Prevalence of similar crime - [See Criminal Law - Topic 5653 and second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See second Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See second Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 10, footnote 1].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 11, foot­note 2].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353; 151 D.L.R.(4th) 193, refd to. [para. 12, foot­note 4].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 15, footnote 7].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 22, footnote 15].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 22, foot­note 18].

R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 22 N.R. 365; 121 C.C.C.(3d) 449, refd to. [para. 28, footnote 25].

R. v. Bisson (Y.) (1997), 114 C.C.C.(3d) 154 (Que. C.A.), refd to. [para. 29, foot­note 27].

R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 (C.A.), refd to. [para. 37, footnote 32].

Azoulay v. R. (1952), 104 C.C.C. 97 (S.C.C.), refd to. [para. 37, footnote 32].

R. v. Cathro (1956), 113 C.C.C. 225 (S.C.C.), refd to. [para. 37, footnote 32].

R. v. Thatcher (1986), 46 Sask.R. 241 (C.A.), refd to. [para. 37, footnote 33].

R. v. St. Pierre (1981), 63 C.C.C.(2d) 258 (Que. C.A.), refd to. [para. 44, footnote 35].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269, refd to. [para. 46, footnote 36].

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; 105 C.C.C.(3d) 327, refd to. [para. 47, footnote 37].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 48, footnote 39].

R. v. Horvath (B.A.) (1997), 152 Sask.R. 277; 140 W.A.C. 277; 117 C.C.C.(3d) 110 (C.A.), dist. [para. 49, footnote 40].

R. v. Morrissette (1970), 1 C.C.C.(2d) 307 (Sask. C.A.), refd to. [para. 49, footnote 41].

R. v. McLeod (R.G.) (1993), 109 Sask.R. 8; 42 W.A.C. 8 (C.A.), refd to. [para. 53, footnote 44].

R. v. Receveur (L.) (1991), 96 Sask.R. 230 (Q.B.), affd. (1993), 109 Sask.R. 139; 42 W.A.C. 139 (C.A.), refd to. [para. 56, footnote 46].

R. v. Paterson (1991), 93 Sask.R. 315 (C.A.), refd to. [para. 56, footnote 47].

R. v. Kaufmann (1981), 22 C.R.(3d) 274 (Sask. Q.B.), refd to. [para. 56, footnote 53].

Baldhead, Re (1966), 55 W.W.R.(N.S.) 757 (Sask. C.A.), refd to. [para. 57, footnote 58].

R. v. McGinn (1989), 75 Sask.R. 161 (C.A.), refd to. [para. 57, footnote 59].

R. v. McDonald (D.P.) (1997), 152 Sask.R. 81; 140 W.A.C. 81; 113 C.C.C.(3d) 418 (C.A.), refd to. [para. 63, footnote 60].

R. v. Maheu (1997), 116 C.C.C.(3d) 361 (Que. C.A.), refd to. [para. 68, footnote 65].

R. v. Fichter and Kaufmann et al. (1985), 37 Sask.R. 126 (C.A.), refd to. [para. 101].

R. v. Jaasma (1976), 1 A.R. 553 (C.A.), refd to. [para. 105].

R. v. Bertram and Wood (1991), 40 O.A.C. 317 (C.A.), refd to. [para. 106].

Authors and Works Noticed:

Canada, Law Reform Commission Report, Imprisonment and Release, Working Paper No. 11 (Ezzat Fattah Report) (1976), generally [para. 53, footnote 45].

Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, United States Academy of Science (1978), p. 7 [para. 53, footnote 45].

Ezzat Fattah Report - see Canada, Law Reform Commission, Imprisonment and Release, Working Paper No. 11 (1976).

Manson, Allan, Finding a Place for Condi­tional Sentences (1997), 3 C.R.(5th) 283, generally [para. 72, footnote 68].

Ruby, Clayton, Sentencing (2nd Ed. 1980), p. 466 [para. 94].

Ruby, Clayton, Sentencing (3rd Ed. 1987), pp. 513, 514 [para. 105].

Ruby, Clayton, Sentencing (4th Ed. 1994), pp. 618, 619, 620 [para. 105].

Counsel:

M. Tochor, for the appellant;

D.M. Brown, Q.C., for the respondent, Crown.

This appeal was heard on January 29, 1998, before Cameron, Vancise and Lane, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the court was delivered on September 22, 1998, including the following opinions:

Vancise, J.A. (Lane, J.A., concurring) - see paragraphs 1 to 77;

Cameron, J.A., dissenting as to sentence - see paragraphs 78 to 109.