R. v. Gopher (G.) et al.,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Gerwing and Richards, JJ.A.
• Neutral Citation: 2006 SKCA 5
• Court: Court of Appeal (Saskatchewan)
• Date: 12 January 2006
• Citation: 2006 SKCA 5,(2006), 275 Sask.R. 226 (CA),[2006] 5 WWR 659,205 CCC (3d) 1,37 CR (6th) 125,[2006] CarswellSask 14,[2006] 2 CNLR 243,275 Sask R 226,275 SaskR 226,(2006), 275 SaskR 226 (CA),275 Sask.R. 226

R. v. Gopher (G.) (2006), 275 Sask.R. 226 (CA);

    365 W.A.C. 226

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. FE.045

Her Majesty the Queen (appellant) v. Archie Moccasin (respondent)

(No. 1081)

Her Majesty the Queen (appellant) v. Mervin Night (respondent)

(No. 1083; 2006 SKCA 5)

Indexed As: R. v. Gopher (G.) et al.

Saskatchewan Court of Appeal

Vancise, Gerwing and Richards, JJ.A.

January 20, 2006.

Summary:

The accused were charged with criminal breach of trust and fraud. The Crown alleged that they defrauded the Saulteaux First Nation of over a million dollars of Treaty Land Entitlement trust funds.

The Saskatchewan Court of Queen's Bench, in a decision reported at 265 Sask.R. 1, found the accused guilty of both offences. The court entered a judicial stay of the fraud charges on the basis of R. v. Kienapple. The matter proceeded to sentencing.

The Saskatchewan Court of Queen's Bench, in a decision reported at 270 Sask.R. 175, imposed conditional sentences of two years less one day on all three accused and made restitution orders. The Crown sought leave to appeal the sentences imposed on the accused Moccasin and Night.

The Saskatchewan Court of Appeal granted leave to appeal, allowed the appeal and substituted a term of imprisonment of three years (less five months already served conditionally) for both accused.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See all Criminal Law - Topic 5941 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations - Offences involving breach of trust - [See all Criminal Law - Topic 5941 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - Three aboriginal accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - The sentencing judge imposed conditional sentences of two years less one day on the accused - The sentencing judge was particularly influenced by s. 718.2(e) of the Criminal Code which required him to consider sanctions other than imprisonment, with particular attention to the circumstances of aboriginal offenders - The Saskatchewan Court of Appeal held that the sentencing judge erred in his application of s. 718.2(e) - He misapprehended the sorts of factors relevant to the consideration of that section and placed undue emphasis on it - See paragraphs 31 to 41.

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See first and second Criminal Law - Topic 5941 ].

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three aboriginal accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - One accused was Moccasin, a trustee of the fund - 59 years old - Married with seven children - Grade 8 education - Difficulty with English - No significant assets - Receiving social assistance - Low risk to re-offend - Former community leaders had also misused government monies - The sentencing judge imposed a conditional sentence of two years less one day with strict conditions and ordered restitution of $150,000 - The Saskatchewan Court of Appeal held that an appropriate sentence was three years' imprisonment and affirmed the restitution order - The offence was significant - The accused betrayed the trust reposed in him - The circumstances warranted sanctions that denounced and deterred such behaviour - See paragraphs 45 to 70.

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three aboriginal accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement (TLE) trust funds - They made a significant number of illegal transactions over a lengthy period of time but made no attempt to hide their actions - One accused was Night, a Band councillor who held the TLE portfolio - 40 years old - Separated from his wife - Five young children - Alcoholic - Grade 12 education with three years of university - 13 prior convictions including for breach of a conditional sentence order - Receiving social assistance - Medium risk to re-offend - Former community leaders had also misused government monies - The sentencing judge imposed a conditional sentence of two years less one day with strict conditions and ordered restitution of $175,000 - The Saskatchewan Court of Appeal held that an appropriate sentence was three years' imprisonment and affirmed the restitution order - The offence was significant - The accused betrayed the trust reposed in him - The circumstances warranted sanctions that denounced and deterred such behaviour - See paragraphs 45 to 70.

Criminal Law - Topic 5941

Sentence - Criminal breach of trust - Three aboriginal accused were convicted of criminal breach of trust for defrauding the Saulteaux First Nation of over $1M of Treaty Land Entitlement (TLE) trust funds - The Saskatchewan Court of Appeal reviewed several sentencing authorities and concluded that the authorities clearly revealed a general view that denunciation and deterrence were key objectives in sentencing these types of offences and that substantial frauds by persons in positions of trust would generally attract sentences involving substantial periods of incarceration - See paragraph 66.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 2].

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; 2000 SCC 5, refd to. [para. 18].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 20].

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. 28].

R. v. Laliberte (M.R.), [2000] 4 W.W.R. 491; 189 Sask.R. 190; 216 W.A.C. 190; 2000 SKCA 27, refd to. [para. 35].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273, refd to. [para. 38].

R. v. McLaren (L.A.) (1995), 135 Sask.R. 137 (Q.B.), refd to. [para. 56].

R. v. Berntson (E.A.), [2000] 8 W.W.R. 388; 199 Sask.R. 281; 232 W.A.C. 281 (C.A.), refd to. [para. 57].

R. v. Fehr (J.K.) (2001), 207 Sask.R. 101; 247 W.A.C. 101 (C.A.), refd to. [para. 58].

R. v. Dickhoff (K.J.) (1998), 172 Sask.R. 1; 185 W.A.C. 1 (C.A.), refd to. [para. 59].

R. v. Horvath (B.A.) (1997), 152 Sask.R. 277; 140 W.A.C. 277; 117 C.C.C.(3d) 110 (C.A.), refd to. [para. 60].

R. v. Moulton (K.) (2001), 202 Sask.R. 71 (Q.B.), refd to. [para. 61].

R. v. Bunn (T.A.), [2000] 1 S.C.R. 183; 249 N.R. 296; 142 Man.R.(2d) 256; 212 W.A.C. 256; 140 C.C.C.(3d) 505, refd to. [para. 62].

R. v. Bogart (M.) (2002), 162 O.A.C. 347; 167 C.C.C.(3d) 390 (C.A.), refd to. [para. 63].

R. v. Clarke (D.) (2004), 189 O.A.C. 331 (C.A.), refd to. [para. 63].

R. v. Mastromonaco, [2005] O.J. No. 501, refd to. [para. 63].

R. v. Khan (M.) et al. (2002), 181 B.C.A.C. 3; 298 W.A.C. 3 (C.A.), refd to. [para. 64].

R. v. Wilson (H.M.), [2003] B.C.T.C. 414; 2003 BCSC 414, refd to. [para. 64].

R. v. Bracegirdle (S.) (2004), 354 A.R. 313; 329 W.A.C. 313; 34 Alta. L.R.(4th) 7 (C.A.), refd to. [para. 65].

R. v. McTighe (J.) (2005), 361 A.R. 315; 339 W.A.C. 315; 193 C.C.C.(3d) 522 (C.A.), refd to. [para. 65].

R. v. John (R.C.) (1995), 162 A.R. 238; 83 W.A.C. 238 (C.A.), refd to. [para. 65].

Counsel:

Beverly Klatt, for the appellant;

Archie Moccasin, in person;

Mervin Night, in person.

This appeal was heard on January 12, 2006, before Vancise, Gerwing and Richards, JJ.A., of the Saskatchewan Court of Appeal. Richards, J.A., delivered the following decision on January 20, 2006.