R. v. Millward (R.C.), 2000 ABPC 46

• Judge: Daniel, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 16, 2000
• Citations: 2000 ABPC 46;(2000), 264 A.R. 300 (ProvCt)

R. v. Millward (R.C.) (2000), 264 A.R. 300 (ProvCt)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MY.044

Her Majesty the Queen v. Robert Charles Millward

(40810533P20101; 2000 ABPC 46)

Indexed As: R. v. Millward (R.C.)

Alberta Provincial Court

Daniel, P.C.J.

March 16, 2000.

Summary:

The accused insurance broker forged a former client's signature to reinstate a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled. When the former client died, the accused's company received the policy payout of over $350,000. The accused pleaded guilty to fraud.

The Alberta Provincial Court sentenced the accused to 20 months, to be served con­ditionally.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused insurance broker forged a former client's signature to reinstate a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled - When the former client died, the accused's company received the policy payout of over $350,000 - The accused pleaded guilty to fraud - The defence requested a conditional sentence - The Alberta Provin­cial Court, while recognizing that in the absence of truly exceptional circumstances an individual guilty of embezzlement should go to jail, held that a conditional sentence of sufficient length and with onerous conditions would be appropriate in this case - The court sentenced the accused to a 20 month conditional sentence and invited submissions on the terms and con­ditions of sentence - See paragraphs 42 to 45.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - [See Criminal Law - Topic 5837 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See second Criminal Law - Topic 5849.6 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - Lack of restitution - The accused insurance broker forged a former client's signature to reinstate a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled - When the former client died, the accused's company received the policy payout of over $350,000 - The accused pleaded guilty to fraud - There would likely be no restitution as the accused had lost most of the defrauded funds in a failed business venture and Revenue Canada had assessed and compounded tax payable on the defrauded sum - The Alberta Provincial Court stated that "[h]ad restitution been made, it would be a positive factor to the accused's benefit. However, unless it can be shown that the accused has wilfully, or for some unjustifiable cause, refused to make restitution, the lack of restitution is a significant but not necessarily aggravat­ing factor" - See paragraphs 11 and 12.

Criminal Law - Topic 5834.4

Sentencing - Considerations on imposing sentence - Fleeing jurisdiction before trial -The accused defrauded an insurance com­pany of over $350,000 - The accused absconded to Belize and then to the United States, where he spent 11 months in cus­tody awaiting extradition back to Canada - The Crown suggested no credit be given for the time spent in U.S. custody, while the defence urged three to one credit - The Alberta Provincial Court stated that "[c]learly, if we grant pre-trial credit for foreign cus­tody at the same rate we con­sider Canadian custody, we are not deter­ring accused persons from absconding and resisting extradition ... There must be some signifi­cant down side to absconding and resisting extradition" - The court sen­tenced the accused to a 20 month condi­tional sentence - See paragraphs 11 to 12, and 29 to 40.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - The accused insurance broker forged a former client's signature to reinstate a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled - When the former client died, the accused's company received the policy payout of over $350,000 - The accused was captured in the United States, and extradited to Canada - The accused pleaded guilty to fraud - The Alberta Provincial Court con­sidered the accused's guilty plea and his infirmity (heart condition and hepatitis A) as miti­gating factors in determining an appropri­ate sentence - The court sentenced the accused to a 20 month conditional sentence - See paragraphs 13 to 20.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5834.4 ].

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - [See Criminal Law -Topic 5837 ].

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper consider­ations - The accused insurance broker forged a former client's signature to rein­state a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled -When the former client died, the accused's company received the policy payout of over $350,000 - The accused pleaded guilty to fraud - The defence argued that since the insurance company had reinsured $300,000 of the risk, they were simply a conduit for that amount and the accused's sentence should be reduced accordingly - The Alberta Provincial Court rejected the argument - The court sen­tenced the accused to a 20 month condi­tional sentence - See paragraphs 5 to 8.

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper consider­ations - The accused insurance broker forged a former client's signature to rein­state a cancelled life insurance policy and to change the beneficiary of the policy to a numbered company which he controlled -When the former client died, the accused's company received the policy payout of over $350,000 - The accused pleaded guilty to fraud - The defence argued that the defrauding of an insurance company by an insurance agent was less culpable than, for example, a lawyer who defrauds a client, as it was more of a business rela­tionship than a fiduciary one - The Alberta Provincial Court rejected the argument, stating that "[t]his court is not so arrogant as to presume the breach of fiduciary relationship is any less devastat­ing or important to one business or pro­fession than it is to another" - The court sentenced the accused to a 20 month con­ditional sentence - See paragraphs 15 to 17.

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5837 ].

Cases Noticed:

R. v. Campbell and Kotler, [1986] 2 S.C.R. 376; 70 N.R. 161; 18 O.A.C. 239; 29 C.C.C.(3d) 97, refd to. [para. 5].

R. v. Brown (K.F.), [1991] 2 S.C.R. 518; 125 N.R. 363; 93 Sask.R. 81; 4 W.A.C. 81, refd to. [para. 5].

R. v. Shaw (1983), 45 N.B.R.(2d) 21; 118 A.P.R. 21; 4 C.C.C.(3d) 348 (C.A.), refd to. [para. 5].

R. v. Laybolt and Laybolt (1985), 54 Nfld. & P.E.I.R. 51; 160 A.P.R. 51; 20 C.C.C.(3d) 263 (P.E.I.C.A.), refd to. [para. 5].

R. v. Manolescu (J.N.) (1997), 202 A.R. 241 (Prov. Ct.), refd to. [para. 9].

R. v. Matheson, [1989] A.J. No. 522 (C.A.), refd to. [para. 19].

R. v. Marshall (J.P.), [1998] A.R. Uned. 511 (C.A.), refd to. [para. 19].

R. v. Tebbutt (1992), 125 A.R. 2; 14 W.A.C. 2 (C.A.), refd to. [para. 21].

R. v. Oxelgren (C.L.) (1995), 169 A.R. 112; 97 W.A.C. 112 (C.A.), refd to. [para. 21].

R. v. King (M.S.) (1998), 212 A.R. 44; 168 W.A.C. 44 (C.A.), refd to. [para. 21].

R. v. Zinkhofer (F.) (2000), 258 A.R. 255 (Prov. Ct.), refd to. [para. 21].

R. v. Leaming (P.L.) (1992), 134 A.R. 146 (Prov. Ct.), refd to. [para. 21].

R. v. Gaetz (G.) (1992), 117 N.S.R.(2d) 22; 324 A.P.R. 22; 77 C.C.C.(3d) 445 (C.A.), refd to. [para. 21].

R. v. Hashem (H.) (1997), 200 A.R. 312; 146 W.A.C. 312 (C.A.), refd to. [para. 21].

R. v. Souter (D.N.) (1998), 228 A.R. 54; 188 W.A.C. 54 (C.A.), refd to. [para. 21].

R. v. Holmes (P.D.) (1999), 237 A.R. 146; 197 W.A.C. 146 (C.A.), refd to. [para. 21].

R. v. Robinson (D.R.) (1993), 143 A.R. 209 (Prov. Ct.), refd to. [para. 21].

R. v. White (S.J.) (1998), 228 A.R. 174; 188 W.A.C. 174 (C.A.), refd to. [para. 29].

R. v. White, [1997] A.J. No. 255 (Q.B.), refd to. [para. 29].

R. v. Oliver (W.N.) (1992), 17 B.C.A.C. 128; 29 W.A.C. 128; 17 W.C.B.(2d) 202 (C.A.), refd to. [para. 29].

Morley v. Director of Stony Mountain Institution (1981), 13 Man.R.(2d) 391 (C.A.), refd to. [para. 29].

R. v. Dykstra, [1991] B.C.J. No. 163 (C.A.), refd to. [para. 29].

R. v. Hatfield, [1937] O.W.N. 559 (C.A.), refd to. [para. 29].

R. v. Lapointe (D.E.) (1999), 244 A.R. 358; 209 W.A.C. 358 (C.A.), refd to. [para. 29].

R. v. McMahon (S.D.) (1996), 181 A.R. 251; 116 W.A.C. 251 (C.A.), refd to. [para. 29].

R. v. Tallman, Tallman, Laboucan and Auger (1989), 94 A.R. 251; 68 C.R.(3d) 367 (C.A.), refd to. [para. 29].

R. v. Stone, [1988] 10 Cr. App. R.(S.) 22 (C.A.), refd to. [para. 29].

R. v. Vincent, [1996] 2 Cr. App. R.(S.) 6 (C.A.), refd to. [para. 29].

R. v. Quach, [1994] A.J. No. 474 (Prov. Ct.), refd to. [para. 29].

R. v. Batke (B.A.) (1995), 173 A.R. 136; 28 W.C.B.(2d) 140 (Prov. Ct.), refd to. [para. 29].

R. v. Skolnick, [1982] 2 S.C.R. 47; 42 N.R. 460, refd to. [para. 29].

R. v. Valois (E.) (2000), 135 B.C.A.C. 45; 221 W.A.C. 45 (C.A.), refd to. [para. 29].

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. 44].

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, refd to. [para. 44].

Counsel:

Jane McClellan, for the Crown;

Simon J. Lord and M.C. Stephensen, for the defence.

This sentencing hearing was held before Daniel, P.C.J., of the Alberta Provincial Court, who released the following decision on March 16, 2000.