R. v. Solar (J.W.), (2012) 392 Sask.R. 167 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 16, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 392 Sask.R. 167 (QB);2012 SKQB 113

R. v. Solar (J.W.) (2012), 392 Sask.R. 167 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MR.080

Her Majesty the Queen v. James William Solar

(2011 N.J. No. 9; 2012 SKQB 113)

Indexed As: R. v. Solar (J.W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

March 16, 2012.

Summary:

The accused was charged with theft over $5,000, breach of trust, disobeying a court order, theft under $5,000, and fraud. The charges arose out of the accused's handling of an estate for which he had acted as an executor.

The Saskatchewan Court of Queen's Bench found the accused guilty of the breach of trust, theft and fraud charges, but entered conditional stays on the theft and fraud charges based on the Kienapple principle. The court found the accused not guilty of the charge of disobeying a court order.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - [See Criminal Law - Topic 1928 ].

Criminal Law - Topic 440

Disobedience and obstruction - Disobedience of court order - The accused was charged with disobeying a court order - The accused had been appointed as an executor of an estate - The Crown's position was that the accused disobeyed the February 26, 2004 order of Justice Klebuc which required the accused to turn over the estate assets "forthwith", as that was not done until April 14, 2004 - The Saskatchewan Court of Queen's Bench found the accused not guilty of this charge - The Crown had not proven beyond a reasonable doubt either the actus reus or the mens rea required in respect to this offence - The court stated that "although the Crown has proven that the accused did not deliver the Estate documentation until April 14, 2004, in my opinion the Crown has not established that the delay in delivery was without lawful excuse or that the accused intended to disobey the lawful Order of the Court. In this case, the accused instructed his legal counsel to apply for leave to appeal the Order. The application for leave to appeal was filed within 15 days and was heard and determined on March 24, 2004. Although the accused did not testify and therefore I do not have the benefit of his thought process, I infer that he then intended to comply with the Order because he prepared the documents Exhibits P-72, P-73 and P-74, which were his attempts at reconciliation of the Estate accounts and forwarded them together with the Estate documentation to Orlene Kozak's counsel, Hnatyshyn & Company. The time he took to do so between March 24, 2004, and April 14, 2004, is not so long as to show a deliberate intent to disobey or avoid the Order" - See paragraphs 31 to 37.

Criminal Law - Topic 1641

Offences against property - Theft - Defined - [See Criminal Law - Topic 1928 ].

Criminal Law - Topic 1928

Offences against property - Breach of trust - What constitutes - The accused was charged with theft over $5,000, breach of trust, disobeying a court order, theft under $5,000, and fraud - The charges arose out of the accused's handling of an estate for which he had acted as an executor - The accused submitted that he carried out his duties as executor appropriately and that he accounted for all of the estate assets - He submitted that he provided services to the estate as an executor, an accountant and as well provided legal services necessary to the estate - He submitted that he was therefore entitled to submit invoices for those services and deduct monies from the estate account to pay the invoices - The Saskatchewan Court of Queen's Bench found the accused guilty of breach of trust - The Crown had proven beyond a reasonable doubt that the accused converted property owned by the estate for unauthorized uses in the form of both retaining cash that ought to have been part of the estate and, also, in the form of paying himself unauthorized sums of money in respect to exorbitant invoices which he submitted to the estate - The Crown had also established beyond a reasonable doubt that the accused intended to defraud the estate of that cash - The court also found the accused guilty of the theft and fraud charges, but entered conditional stays on those charges based on the Kienapple principle - See paragraphs 9 to 30.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - [See Criminal Law - Topic 1928 ].

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 8].

R. v. Saunders (E.R.) (2000), 189 N.S.R.(2d) 43; 590 A.P.R. 43 (S.C.), affd. (2001), 194 N.S.R.(2d) 48; 606 A.P.R. 48; 2001 NSCA 87, refd to. [para. 16].

R. v. Singleton (M.K.), [2010] B.C.T.C. Uned. 1734; 2010 BCSC 1734, refd to. [para. 16].

R. v. Gopher (G.) (2005), 265 Sask.R. 1; 2005 SKQB 243, refd to. [para. 17].

R. v. Petricia, [1974] 4 W.W.R. 425; 17 C.C.C.(2d) 27 (B.C.C.A.), refd to. [para. 17].

R. v. Sopko and Duncan (1991), 74 Man.R.(2d) 34 (Q.B.), refd to. [para. 17].

R. v. Dorosh (G.), [2004] 8 W.W.R. 613; 241 Sask.R. 180; 313 W.A.C. 180; 2003 SKCA 134, refd to. [para. 23].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 25].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 29].

R. v. Star Phoenix 911909 et al., [2004] 3 W.W.R. 639; 238 Sask.R. 225; 305 W.A.C. 225; 2003 SKCA 108, consd. [para. 36].

Counsel:

Robin D. Ritter and Darren W. Howarth, for the Crown;

James William Solar, on his own behalf.

This matter was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on March 16, 2012.