R. v. Steinhubl (J.K.) et al., (2013) 542 A.R. 207

• Judge: Côté, Hunt and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 22, 2013
• Citations: (2013), 542 A.R. 207;2013 ABCA 48;2013 ABCA 39

R. v. Steinhubl (J.K.) (2013), 542 A.R. 207; 566 W.A.C. 207 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.035

Her Majesty the Queen (appellant) v. James Keith Steinhubl (respondent) and Eugene Michael Chamczuk (not a party to the appeal)

(1103-0055-A; 1103-0301-A; 2013 ABCA 39; 2013 ABCA 48)

Indexed As: R. v. Steinhubl (J.K.) et al.

Alberta Court of Appeal

Côté, Hunt and Ritter, JJ.A.

February 4, 2013 and February 7, 2013.

Summary:

The accused real estate developer was charged with 60 counts of fraud by providing false information in support of various mortgage applications. It was alleged that, working in conjunction with others, he defrauded the complainant lenders and mortgage insurers of approximately $3.9 million.

The Alberta Court of Queen's Bench, in a decision reported at 492 A.R. 1, convicted the accused of 13 of the counts of fraud over $5,000 in the indictment. The court acquitted the accused of two other counts of fraud over $5,000, but convicted him of the lesser included offence of attempted fraud. The court then stayed one of the latter convictions on the basis of the Kienapple principle. The court acquitted the accused of the other counts in the indictment. The Crown appealed 15 of the acquittals. The accused appealed his convictions.

The Alberta Court of Appeal, in a decision reported at 536 A.R. 184; 559 W.A.C. 184, allowed the Crown's appeal and remitted the matter back to the trial court for sentencing. The court dismissed the accused's appeal. The Crown sought reconsideration of the direction that the matter be returned for sentencing, advising that it had filed an appeal from the sentence imposed by the trial judge on 13 counts of fraud over $5,000 and two counts of attempted fraud. The Crown argued that, as s. 686(4)(b)(ii) of the Criminal Code provided that the Court of Appeal could pass a sentence where an appeal from an acquittal was allowed, it would make sense for the sentencing on these 15 counts to proceed before the court when the sentence appeal was heard, thereby allowing the sentence appeal panel to consider the totality of a global sentence.

The Alberta Court of Appeal, in a decision reported at [2012] A.R. Uned. 482, granted the Crown's request.

The Alberta Court of Appeal granted the Crown leave to appeal and substituted a six year sentence for the 42 months imposed by the trial judge.

Criminal Law - Topic 5859

Sentence - Fraud - The accused real estate developer was charged with 60 counts of fraud by providing false information in support of various mortgage applications - It was alleged that, working in conjunction with others, he defrauded the complainant lenders and mortgage insurers of approximately $3.9 million - The scheme involved using "straw buyers" with good credit to obtain the mortgages - At the heart of the frauds were alleged misrepresentations made by the straw buyers to the mortgage lenders at the instigation of the accused and his business partner - The trial judge acquitted the accused of the majority of the counts in the indictment, holding that the Crown had failed to prove the essential element of reliance to the required standard in relation to those counts - The Crown appealed 15 of the acquittals - The Court of Appeal allowed the Crown's appeal and dismissed the accused's appeal - The Crown appealed the sentence imposed by the trial judge on 13 counts of fraud over $5,000 and two counts of attempted fraud - The Crown also sought to have the sentencing on the 15 new counts proceed before the court when the sentence appeal was heard, thereby allowing the sentence appeal panel to consider the totality of a global sentence - The court granted the Crown's request - The Alberta Court of Appeal substituted a six year sentence for the 42 months imposed by the trial judge.

Cases Noticed:

R. v. Jaasma (1976), 1 A.R. 553 (C.A.), refd to. [para. 7].

R. v. Bracegirdle (S.) (2004), 354 A.R. 313; 329 W.A.C. 313; 34 Alta. L.R.(4th) 7; 2004 ABCA 252, refd to. [para. 7].

R. v. McKinnon (V.A.) (2005), 361 A.R. 271; 339 W.A.C. 271; 38 Alta. L.R.(4th) 23; 2005 ABCA 8, refd to. [para. 7].

R. v. Jaikaran (J.) (2007), 404 A.R.169; 394 W.A.C. 169; 2007 ABCA 98, refd to. [para. 7].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329; 2007 ABCA 381, refd to. [para. 7].

R. v. Stirling (K.M.) (2010), 493 A.R. 383; 502 W.A.C. 383; 44 Alta L.R.(5th) 360; 2010 ABCA 338, refd to. [para. 7].

Counsel:

M.J. McGuire, for the appellant;

James Keith Steinhubl, the respondent, appeared in person.

This sentence appeal was heard on January 22, 2013, by Côté, Hunt and Ritter, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment and supplementary memorandum of judgment on February 4 and February 7, 2013, respectively.