R. v. Sellars (R.J.), (2011) 517 A.R. 91 (PC)

• Judge: Meagher, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 30, 2011
• Citations: (2011), 517 A.R. 91 (PC);2011 ABPC 110

R. v. Sellars (R.J.) (2011), 517 A.R. 91 (PC)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MY.034

Her Majesty the Queen v. Robert John Sellars (101255164P10101-0107; 2011 ABPC 110)

Indexed As: R. v. Sellars (R.J.)

Alberta Provincial Court

Meagher, P.C.J.

March 30, 2011.

Summary:

The accused pled guilty to seven counts of offences under the Securities Act. The Crown and defence presented a joint submission wherein they agreed to a sentence which included a penitentiary sentence of two years' imprisonment and restitution orders under s. 738 of the Criminal Code for the four named victims. The first part of the decision dealt with two questions: "whether or not this Court has jurisdiction, either on its own motion or to entertain motions by third-parties at this stage to make Restitution Orders under s.738 of the Criminal Code; and, if this Court has jurisdiction, should the Court exercise its discretion to grant such Restitution Orders in the circumstances of this particular case." The second part of the decision dealt with sentencing.

The Alberta Provincial Court determined the issues.

Criminal Law - Topic 5791

Punishments (sentence) - Restitution - General - The accused pled guilty to seven counts of offences under the Securities Act - The Crown and defence presented a joint submission wherein they agreed to sentence which included a penitentiary sentence of two years' imprisonment and restitution orders under s. 738 of the Criminal Code for the four named victims - A person and corporation brought third-party applications for restitution by persons who were not named victims in the criminal proceedings and who were not included in the joint submission - At issue, inter alia, was whether or not the court had jurisdiction, either on its own motion or to entertain motions by third-parties at this stage to make restitution orders under s. 738 - The Alberta Provincial Court held that "[t]his Court has jurisdiction to consider third-party applications with regards to restitution based on the clear wording of s. 738(1) of the Criminal Code. The wording in s. 738 of the Criminal Code states that the Court '... may ... of its own motion ... order that the offender make restitution to another person ...' The word 'may' is permissive and discretionary. Therefore the Court of its own motion has jurisdiction to entertain applications for Restitution Orders by third parties, not part of the proceedings, and not just in favour of the named victims in the Information. However, it is in the discretion of the Court, considering all of the circumstances before the Court, to determine whether or not to exercise this jurisdiction in any particular case." - See paragraph 13.

Criminal Law - Topic 5791

Punishments (sentence) - Restitution - General - The accused pled guilty to seven counts of offences under the Securities Act - The Crown and defence presented a joint submission wherein they agreed to sentence which included a penitentiary sentence of two years' imprisonment and restitution orders under s. 738 of the Criminal Code for the four named victims - A person and corporation brought third-party applications for restitution by persons who were not named victims in the criminal proceedings and who were not included in the joint submission - The Alberta Provincial Court dismissed the applications - The third parties had already taken civil proceedings, within which a summary judgment application by them had already been denied - The third parties were not named victims in the Information and were not part of the joint submission that had been negotiated in these proceedings - There was an existing joint submission on sentence, where restitution was part of the punishment - Allowing a third party application at this stage of the proceedings would not only unduly delay these proceedings but could have the effect of defeating the joint submission on sentence - In addition, there were public policy considerations against permitting third party applications in sentencing proceedings - It would not be in the best interests of the proper administration of justice to permit third party applications for restitution - See paragraphs 14 to 34.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The accused pled guilty to seven counts of offences under the Securities Act - The Crown and defence presented a joint submission wherein they agreed to sentence which included a penitentiary sentence of two years' imprisonment and restitution orders under s. 738 of the Criminal Code for the four named victims - The aggravating factors were: a number of the offences related to breaches of Alberta Security Commission's orders; the time frame (over a period of five years); the multiple transactions and multiple investors that were harmed by the accused's conduct; the significant value of the loss (almost $2 million); and the relationship of trust between the accused and his clients - The mitigating factors were: timely guilty pleas; no criminal record; the accused was remorseful; and the accused's age (73) - The Alberta Provincial Court accepted the joint submission - It was appropriate and reasonable, bearing in mind all of the principles of sentencing and the aggravating and mitigating factors - The objectives of general and specific deterrence were well served - The court also made the prohibition orders requested by the Commission under the Securities Act - See paragraphs 35 to 64.

Securities Regulation - Topic 5321.1

Trading in securities - Offences - Penalties and punishments - Considerations - [See Criminal Law - Topic 5813 ].

Cases Noticed:

United States of America et al. v. R. et al., [2004] O.T.C. 372; 71 O.R.(3d) 141 (Sup. Ct.), consd. [para. 19].

R. v. Levy - see United States of America et al. v. R. et al.

R. v. Del Bianco (D.J.) (2008), 456 A.R. 134; 99 Alta. L.R.(4th) 158 (Prov. Ct.), refd to. [para. 53].

R. v. Del Bianco (D.) (2010), 488 A.R. 151; 24 Alta. L.R.(5th) 319 (Q.B.), refd to. [para. 53].

R. v. Zelitt (S.S.) (2003), 328 A.R. 293 (Prov. Ct.), revd. in part (2006), 408 A.R. 274 (Q.B.), refd to. [para. 53].

R. v. Seto, [2005] A.J. No. 994 (Prov. Ct.), refd to. [para. 53].

R. v. Boyle (K.P.) et al. (2001), 300 A.R. 284 (Prov. Ct.), refd to. [para. 53].

R. v. Boyle (K.P.) et al. (2002), 331 A.R. 273 (Prov. Ct.), refd to. [para. 53].

Counsel:

D.A. Young and R. Finn, for the Crown;

D. Macleod, Q.C., for the Defence.

This case was heard by Meagher, P.C.J., of the Alberta Provincial Court, who delivered the following decision on March 30, 2011.