R. v. Fearn (G.W.), (2014) 586 A.R. 173 (PC)

• Judge: Redman, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 03, 2014
• Citations: (2014), 586 A.R. 173 (PC);2014 ABPC 58

R. v. Fearn (G.W.) (2014), 586 A.R. 173 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.119

Her Majesty the Queen v. Glenn Winningham Fearn (131337321P1; 2014 ABPC 58)

Indexed As: R. v. Fearn (G.W.)

Alberta Provincial Court

Redman, P.C.J.

March 6, 2014.

Summary:

The accused was charged with a total of nine offences: four smuggling charges contrary to s. 159 of the Customs Act (counts 1 through 4), four importing prohibited devices or weapons contrary to s. 104(1)(a) of the Criminal Code (counts 5 through 8) and one was the making of a false or deceptive statement contrary to s. 153(a) of the Customs Act.

The Alberta Provincial Court, in a decision reported at (2014), 586 A.R. 148, found the accused guilty of all nine counts. At issue was whether there should be a conditional stay on any of the charges as a result of the rule against multiple convictions (Kienapple principle).

The Alberta Provincial Court, in a decision reported at (2014), 586 A.R. 168, entered convictions on counts 5 to 9 inclusive and a conditional stay was entered on counts 1 to 4 inclusive.

The Alberta Provincial Court sentenced the accused to four months' imprisonment, followed by two years' probation.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of the accused - Right of accused to be heard - The accused was convicted of four charges of importing prohibited devices or weapons contrary to s. 104(1)(a) of the Criminal Code and one charge of  making of a false or deceptive statement contrary to s. 153(a) of the Customs Act - The trial had proceeded in the accused's absence after he left the courtroom - At issue was whether sentencing could proceed in his absence - The Alberta Provincial Court permitted sentencing to proceed in absentia - The jurisdiction to sentence the accused in absentia was clearly established - It was not mandatory but permissible - Section 803(2)(a) of the Criminal Code stated that a summary conviction court: "may proceed ex-parte to hear and determine proceedings in the absence of that defendant as if they had appeared" - The accused's actions were for the purpose of impeding or frustrating the trial and avoiding the consequences of the trial - It could not be said that his absence was unexplained or excusable - By his own conduct, he voluntarily excused himself - He had the opportunity to return over the last three days and did not do so - There was no miscarriage of justice to proceed with sentencing in absentia - It was correct that the court did not have the benefit of submissions by the accused - This however fell squarely on the shoulders of the accused - See paragraphs 2 to 6.

Criminal Law - Topic 5871.1

Sentencing - Sentence - Particular offences - Importing or exporting weapons - The accused was convicted of four charges of importing prohibited devices or weapons contrary to s. 104(1)(a) of the Criminal Code and one charge of making of a false or deceptive statement contrary to s. 153(a) of the Customs Act - The Alberta Provincial Court sentenced the accused to four months' imprisonment, followed by two years' probation - The accused was 56 years old, had dual citizenship (Canadian and American), was an unemployed engineer and had no criminal record - He showed no remorse or insight - Both the number and type of prohibited devices and weapons were aggravating factors - The border context of the offences was a further aggravating circumstance - These were serious offences - The accused's moral blameworthiness was high - His conduct had to be denounced and deterred - It was also important for a court to exercise restraint where warranted - See paragraphs 7 to 31.

Cases Noticed:

R. v. Tarrant (1984), 13 C.C.C.(3d) 219; 1984 CanLII 659 (B.C.C.A.), refd to. [para. 4].

R. v. Rogers (1984), 34 Sask.R. 284 (C.A.), refd to. [para. 4].

R. v. Bird (1988), 66 Sask.R. 79 (C.A.), refd to. [para. 4].

Vysek v. Nova Gas International Ltd. et al. (2002), 303 A.R. 221; 273 W.A.C. 221; 2002 ABCA 136, refd to. [para. 4].

R. v. Zelitt (S.S.) (2003), 328 A.R. 293; 2003 ABPC 14, refd to. [para. 4].

Manitoba Securities Commission v. Bennett et al. (2006), 204 Man.R.(2d) 237; 2006 CanLII 23487 (Prov. Ct.), refd to. [para. 4].

Meads v. Meads (2012), 543 A.R. 215; 2012 ABQB 571, refd to. [para. 5].

Fearn v. Canada Customs (2014), 586 A.R. 23; 2014 ABQB 114, refd to. [para. 5].

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. 12].

R. v. Villella, [2006] O.J. No. 4690, refd to. [para. 18].

R. v. Donovan, [2010] O.J. No. 4158, refd to. [para. 18].

R. v. Ross (D.J.) (2010), 289 B.C.A.C. 86; 489 W.A.C. 86; 2010 BCCA 314, refd to. [para. 19].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161; 110 C.C.C.(3d) 1, refd to. [para. 19].

R. v. Nelson (C.D.), [1999] B.C.A.C. Uned. 230; 1999 BCCA 737, refd to. [para. 21].

R. v. Greening (R.T.) (2013), 334 Nfld. & P.E.I.R. 192; 1037 A.P.R. 192 (N.L. Prov. Ct.), refd to. [para. 21].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 24].

Counsel:

Alexander R. Bernard, for the Crown;

Glenn W. Fearn was self-represented.

This case was heard on March 3, 2014, by Redman, P.C.J., of the Alberta Provincial Court, who delivered the following sentencing judgment at Lethbridge, Alberta, on March 6, 2014.