R. v. Gardner (R.), 2015 ABPC 8

• Judge: MacDonald, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 29, 2014
• Citations: 2015 ABPC 8;(2014), 610 A.R. 128 (PC)

R. v. Gardner (R.) (2014), 610 A.R. 128 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.103

Her Majesty the Queen (Crown) v. Robert Gardner (accused)

(140512351P1; 2015 ABPC 8)

Indexed As: R. v. Gardner (R.)

Alberta Provincial Court

MacDonald, P.C.J.

November 7, 2014.

Summary:

The accused legal agent was found guilty of obstruction contrary to s. 139(2) of the Criminal Code. The accused applied for a stay of proceedings under s. 24 of the Charter, alleging that there had been an abuse of process in the prosecution of his case and arguing that this was one of those "clearest of cases" where a stay of proceedings was the appropriate remedy.

The Alberta Provincial Court, in a decision reported at (2014), 610 A.R. 112, dismissed the application.

The Alberta Provincial Court sentenced the accused to 90 days, to be served in a Provincial Correctional Centre. The court was prepared to hear submissions on whether the sentence should be served intermittently.

Criminal Law - Topic 4429

Procedure - Verdicts - Discharges and dismissals - Discharge - Generally - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5723

Punishments (sentence) - Probation or probation order - Conditions - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5817

Sentencing - Sentencing procedure and rights of the accused - Evidence - General - The accused was found guilty of obstruction of justice - The Alberta Provincial Court stated that it had been provided with two character reference letters - Both letters gave the accused a good character reference - Neither letter stated that the author was aware of the accused's conviction for obstruction of justice - While one author made reference to "this situation" in his letter, he did not specify what the situation was - The court stated that "A reference letter which does not indicate that the referee is aware of the charges the person is facing is of limited or no weight. That is the case here." - See paragraph 46.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5910 ].

Criminal Law - Topic 5910

Sentence - Obstructing justice - The accused legal agent sought an adjournment of a traffic ticket trial on the basis that his client was away working at camp - In fact, he had told his client to wait in the parking lot - The lie was discovered - The accused was found guilty of obstruction of justice after a trial - No prior record - Sole support of his three teenage children - The accused sought a conditional discharge - The Crown sought a large fine ($2,000) - The Alberta Provincial Court concluded that a fine, even a large one, would not adequately express deterrence and denunciation in this case - Further, specific deterrence was a sentencing factor here - The court sentenced the accused to 90 days, to be served in a Provincial Correctional Centre, to be followed by two years' probation - The probation terms included that he not appear in court or practice in any capacity as an agent for another person; and that he take such assessment treatment and counselling as directed by his probation officer - A discharge would be contrary to the public interest - Since the conduct of court agents was essentially unregulated in Alberta, the only effective warning the public and the courts could have would be to make the conviction a matter of public record - A conditional sentence would not be appropriate as it would not be consistent with the fundamental principles of sentencing - It would not adequately address deterrence and denunciation or the proportionality principle.

Cases Noticed:

R. v. Ward (D.H.), [2011] A.R. Uned. 17; 2011 ABCA 30, refd to. [para. 3].

R. v. Hall (J.E.) (2001), 150 B.C.A.C. 313; 245 W.A.C. 313; 2001 BCCA 74, refd to. [para. 3].

R. v. Viscomi (S.) (2012), 524 A.R. 241; 545 W.A.C. 241; 2012 ABCA 135, refd to. [para. 11].

R. v. Emmelkamp (J.J.) (2013), 542 A.R. 361; 566 W.A.C. 361; 2013 ABCA 71, refd to. [para. 12].

R. v. Crazyboy (S.E.) (2012), 533 A.R. 371; 557 W.A.C. 371; 2012 ABCA 228, refd to. [para. 14].

R. v. Thomas (J.C.), [2010] A.R. Uned. 457 (Prov. Ct.), refd to. [para. 14].

R. v. Doz (1984), 52 A.R. 321; 12 C.C.C.(3d) 200 (C.A.), refd to. [para. 15].

R. v. Tschetter (D.J.) (2009), 466 A.R. 239; 2009 ABPC 291, refd to. [para. 17].

R. v. Konkolus (1988), 86 A.R. 144; 1988 ABCA 127, refd to. [para. 17].

R. v. Elguindy, [1993] O.J. No. 2869 (Gen. Div.), refd to. [para. 20].

R. v. Johnston and Reynolds (1989), 102 N.B.R.(2d) 233; 256 A.P.R. 233 (T.D.), refd to. [para. 22].

R. v. Phillips (K.V.) (1991), 118 A.R. 399 (Prov. Ct.), refd to. [para. 23].

R. v. Manko (M.J.) (1992), 80 Man.R.(2d) 158 (Q.B.), dist. [para. 24].

R. v. Mawuli (H.Y.), [2011] A.R. Uned. 612; 2011 ABPC 258, dist. [para. 25].

R. v. MacFarlane (1976), 55 A.R. 222 (C.A.), refd to. [para. 28].

Counsel:

J. Robbins, for the Crown;

T. Engel, for the accused.

This sentencing matter was heard on September 29, 2014, by MacDonald, P.C.J., of the Alberta Provincial Court, who delivered an oral decision on November 7, 2014, and the following written reasons for sentence on February 2, 2015.