R. v. Strowbridge (D.J.), 2014 NLCA 4

• Judge: Rowe, Harrington and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: November 13, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: 2014 NLCA 4;(2014), 346 Nfld. & P.E.I.R. 203 (NLCA)

R. v. Strowbridge (D.J.) (2014), 346 Nfld. & P.E.I.R. 203 (NLCA);

    1078 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. FE.004

Donald John Strowbridge (appellant) v. Her Majesty the Queen (respondent)

(13/12; 2014 NLCA 4)

Indexed As: R. v. Strowbridge (D.J.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Rowe, Harrington and Hoegg, JJ.A.

February 4, 2014.

Summary:

The accused was convicted of seven offences, including fraud, breach of probation, and copyright and trademark infringement. He was sentenced to 15 months' imprisonment, three years' probation, restitution orders totalling $1,724.88, and a $5,000 fine. He applied for leave to appeal the sentence and also judicial interim release pending the appeal.

The Newfoundland and Labrador Court of Appeal, per Barry, J.A., in a decision reported at (2013), 341 Nfld. & P.E.I.R. 144; 1061 A.P.R. 144, allowed the application. The accused appealed the order that he pay restitution, the six month custodial sentences for the trademark and copyright offences, and the $5,000 fine for the copyright offence.

The Newfoundland and Labrador Court of Appeal dismissed the appeal respecting the restitution order, but amended it to provide that the $1,724.88 be paid within 24 months following the accused's release from custody. The court allowed the appeal respecting the six month custodial sentence for the trademark and copyright offences, and replaced it with a two month custodial sentence. The fine for the copyright offence was quashed.

Copyright - Topic 6301

Offences - Sentence, punishments and fines - General - [See Criminal Law - Topic 6203 ].

Copyright - Topic 6303

Offences - Sentence, punishments and fines - Fines - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Strowbridge was convicted of selling copyrighted products (Copyright Act, s. 42(1)(b)) and selling trademark goods without authority (Criminal Code, ss. 408(b) to 412(1)) - He was serving a conditional sentence for fraud when he committed the present offences - The sentencing judge imposed a custodial sentence - Strowbridge appealed - The Newfoundland and Labrador Court of Appeal stated that "While a custodial sentence for Mr. Strowbridge's offences, given their nature and magnitude, could be disproportionate to their gravity and the level of his moral blameworthiness, the aggravating factors of Mr. Strowbridge's extensive record for 'economic' type offences and the fact that he was serving a conditional sentence at the time he committed these offences, as well as the warnings he received about selling counterfeit products, make incarceration appropriate ... In this regard, I note the comments by the British Columbia Court of Appeal in R. v. Bui, [2001] B.C.J. No. 1574, to the effect that the imposition of a second conditional sentence on a person who offends while serving a conditional sentence should be reserved for 'the rarest of cases'. I would not state the point quite as strongly. Nevertheless, if an offender commits an offence while serving a conditional sentence, especially an offence of similar type to the one for which he is already serving a conditional sentence, he is demonstrating, at least to some degree, that he is not able to abide by the terms of a conditional sentence, thereby suggesting that an additional conditional sentence is not appropriate. I note this was the approach taken by the Nova Scotia Court of Appeal in R. v. Perrin, [2012] N.S.J. No. 443, 2012 NSCA 85, in which the court remarked that an offender who reoffends, while serving a conditional sentence would ordinarily attract a significant denunciating and deterrent sentence for the new offence." - See paragraph 50.

Criminal Law - Topic 5793

Punishments (sentence) - Restitution - Considerations - Two individuals contracted with Strowbridge to buy used auto parts for a total of $1,724.88 - The individuals sent Strowbridge the money but never received the parts - Strowbridge admitted to police that he never had the parts - He was convicted of two counts of fraud under $5,000 and was sentenced to 90 days' imprisonment on each count (consecutive), followed by three years' probation - He was ordered to pay restitution of $1,724.88 as a term of his probation - Strowbridge appealed, arguing that the sentencing judge should have ordered restitution pursuant to a stand-alone order under s. 738(1)(a) of the Criminal Code and not as a term of his probation - He argued that the sentencing judge had set him up for a charge of breach of probation with possible penal consequences - Strowbridge submitted that he already had a great deal of debt and that his employment prospects were weak - The Newfoundland and Labrador Court of Appeal held that an offender's means to pay had to be considered when a judge was considering ordering restitution - Section 732.1(3)(h) provided a court with the authority to order restitution as a condition of a probation order and stipulated that a term of the probation had to be "reasonable" - The issue was therefore whether the sentencing judge considered Strowbridge's means to pay, and whether ordering restitution as a condition of his probation was reasonable - Strowbridge told the sentencing judge that he would be able to pay court-ordered restitution and that employment had never been an issue for him - Based on this and the sentencing judge's consideration of Strowbridge's ability to pay, ordering Strowbridge to pay a relatively modest amount of restitution to his victims over time was not unreasonable - Payment of $100/month for 18 months would more than discharge the debt - The court amended the probation order to provide that restitution be paid within 24 months following Strowbridge's release from custody - See paragraphs 4 to 28.

Criminal Law - Topic 5793

Punishments (sentence) - Restitution - Considerations - The issue in this appeal was restitution ordered as a term of probation versus restitution ordered pursuant to a stand-alone order under s. 738(1)(a) of the Criminal Code - The Newfoundland and Labrador Court of Appeal stated that "Restitution orders made pursuant to probation provide several advantages to the criminal justice system distinct from the advantages of section 738 orders. Probation orders are time specific. Offenders therefore have a schedule or timeline within which an offender can pay the restitution. Such a timeline provides incentive, encouragement and support to the offender in honouring the terms, thus serving as a reminder to him or her of the responsibility to acknowledge the harm he or she inflicted. This promotes a sense of responsibility in the offender and he or she learns that what he or she did was wrong ... Ordering restitution pursuant to probation acknowledges the reality that offenders will be motivated to comply with the terms of their probation orders so as to avoid a breach charge. In this regard, I note that in order for an offender to be convicted of breaching a condition of his probation, the Crown must prove that the offender committed the breach 'without reasonable excuse.' A conviction for breaching a probation order is not automatic. It is not a simple matter of an offender not paying the restitution; mens rea is part of the offense. This is the safeguard against restitution orders pursuant to probation leading to a modern version of 'debtors' prison'. Enforcement through the criminal law is the main difference between the two ways restitution can be ordered ... " - Respecting the sentencing objective of providing reparation to victims, the court observed that ordering restitution pursuant to probation was the only practical and effective way that some victims would be compensated, particularly victims who were not positioned to absorb losses or avail themselves of remedies through the civil justice system - Convenience, rapidity and inexpensiveness were enhanced when restitution was ordered as a condition of probation, thereby providing victims with better access to justice - See paragraphs 23 to 25.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See first Criminal Law - Topic 5793 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - Strowbridge was observed selling items from the back of a van next to the highway - The items included ball caps, belt buckles and jerseys bearing counterfeit insignia of known sports teams, counterfeit brand name razor blades, and counterfeit hair styling flatirons - Police seized the items, which were valued at about $500 - Strowbridge was convicted of selling copyrighted products (Copyright Act, s. 42(1)(b)) and selling trademark goods without authority (Criminal Code, ss. 408(b) to 412(1)) - Police had previously observed Strowbridge selling counterfeit items and warned him to stop - He was serving a conditional sentence for fraud when he committed the present offences - The sentencing judge sentenced him to six months' imprisonment and a $5,000 fine for the copyright offence, and six months concurrent for the trademark offence - Strowbridge appealed, arguing that the six month sentence was demonstrably unfit and that the sentencing judge erred in principle by imposing the fine - The Newfoundland and Labrador Court of Appeal noted that customers who purchased goods from the back of a van on a highway had a lower expectation of receiving genuine products than customers who purchased goods from a legitimate storefront operation - There was no indication that the purchasers in this case were victims - Strowbridge's operation was marginal and unsophisticated - While the aggravating factors weighed against a lenient sentence, Strowbridge was not being sentenced for his record - Six months was disproportionately long for the gravity of the offences and Strowbridge's level of moral blameworthiness - Accordingly, it was demonstrably unfit - The sentencing judge did not assess Strowbridge's ability to pay a $5,000 fine and thereby committed an error in principle - Strowbridge did not have the ability to pay a fine - The court quashed the fine and ordered two months' imprisonment for the trademark and copyright offences - See paragraphs 29 to 53.

Cases Noticed:

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 3].

R. v. Castro (C.) (2010), 270 O.A.C. 140; 2010 ONCA 718, refd to. [para. 3].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372, refd to. [para. 9].

R. v. Groves, [1977] C.R.N.S. 366 (Ont. Sup. Ct.), refd to. [para. 10].

R. v. Devgan (R.) (1999), 121 O.A.C. 265; 136 C.C.C.(3d) 238 (C.A.), refd to. [para. 11].

R. v. Minot (P.) (2011), 304 Nfld. & P.E.I.R. 212; 944 A.P.R. 212; 2011 NLCA 7, refd to. [para. 11].

R. v. Trac (P.N.) (2013), 305 O.A.C. 108; 2013 ONCA 246, refd to. [para. 13].

R. v. Debaat (A.D.) (1992), 11 B.C.A.C. 78; 22 W.A.C. 78 (C.A.), refd to. [para. 14].

R. v. Scherer (1984), 5 O.A.C. 297; 16 C.C.C.(3d) 30 (C.A.), refd to. [para. 15].

R. v. Chen, 2004 BCPC 365, refd to. [para.32].

R. v. Benchmuel, 2005 CarswellOnt 8928 (Ct. J.), refd to. [para. 33].

R. v. Katebian, 2005 CarswellOnt 8931 (Ct. J.), refd to. [para. 34].

R. v. Borge (R.) et al., [2007] O.T.C. Uned. H96; 2007 CanLII 36083 (Sup. Ct.), refd to. [para. 35].

R. v. Hirani, 2010 BCPC 209, refd to. [para. 36].

R. v. Campbell (1991), 121 N.B.R.(2d) 404; 304 A.P.R. 404 (Prov. Ct.), refd to. [para. 37].

R. v. Garby, [2002] O.J. No. 3383 (Ct. J.), refd to. [para. 39].

R. v. Bui (T.T.) (2001), 158 B.C.A.C. 21; 258 W.A.C. 21; 2001 BCCA 471, refd to. [para. 50].

R. v. Perrin (K.R.) (2012), 320 N.S.R.(2d) 216; 1014 A.P.R. 216; 2012 NSCA 85, refd to. [para. 50].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (7th Ed. 2008), p. 645, para. 19.31 [para. 7].

Counsel:

Derek Hogan, for the appellant;

Carmel Penney, for the Provincial Crown;

Neil Smith, for the Federal Crown.

This appeal was heard on November 13, 2013, before Rowe, Harrington and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. Hoegg, J.A., delivered the following reasons for judgment for the court on February 4, 2014.