R. v. Ticknovich (N.M.), (2003) 356 A.R. 57 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 19, 2003
• Citations: (2003), 356 A.R. 57 (QB);2004 ABQB 421

R. v. Ticknovich (N.M.) (2003), 356 A.R. 57 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.038

Her Majesty the Queen v. Nicole Marie Ticknovich (accused)

(017299199Q3; 2004 ABQB 421)

Indexed As: R. v. Ticknovich (N.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

December 19, 2003.

Summary:

The accused was charged with five counts of fraud and attempted fraud.

The Alberta Court of Queen's Bench, in a decision reported at 343 A.R. 243, convicted the accused of all five counts.

The Alberta Court of Queen's Bench sentenced the accused to two years' concurrent imprisonment on each count and ordered restitution of $110,000 plus interest.

Criminal Law - Topic 5791

Punishments (sentence) - Restitution - General - Section 738(1)(a) of the Criminal Code provided for a restitution order to be made against an accused - An accused argued that this was a penal provision which should, therefore, be given a strict construction analysis - The Alberta Court of Qu een's Bench held that since the provision had nothing to do with a subject's liberty, s. 12 of the Interpretation Act applied ("Every enactment shall be deemed remedial and shall be given such fair, large and liberal construction and interpretation as best insures the attainment of its objects") - Section 738 was also to be interpreted under the "Driedger principle" (words of an Act to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme and the object of the Act, and the intention of Parliament) - See paragraphs 50 to 59.

Criminal Law - Topic 5793

Punishments (sentence) - Restitution - Considerations (incl. conditions precedent) - The accused was convicted of fraud against a theatre society in relation to funds that the latter received as a grant and deposited to one of its Alberta Treasury Branch accounts - Section 738(1) of the Criminal Code provided for a restitution order to be made against an accused in favour of a person who had suffered loss or destruction of property - The Treasury Branch sought restitution - The Alberta Court of Queen's Bench held that any limitations issue that might exist at civil law was not a relevant consideration that would operate to impede the operation of the federal criminal law - The criminal law was paramount - See paragraphs 74 to 78.

Criminal Law - Topic 5794

Punishments (sentence) - Restitution - Person aggrieved - The accused was convicted of fraud against a theatre society in relation to funds that the latter received as a grant and deposited to one of its Alberta Treasury Branch accounts - Section 738(1)(a) of the Criminal Code provided for a restitution order to be made against an accused in favour of a person who had suffered loss or destruction of property - The preamble to the section referred to restitution to victims of offences - The accused argued that a restitution order could not be made in favour of the Treasury Branch because it was not a "victim" because it was not the person named in the count - The Alberta Court of Queen's Bench rejected the argument - A victim of an offence was not necessarily the person who was the named individual - See paragraphs 60 to 63.

Criminal Law - Topic 5794

Punishments (sentence) - Restitution - Person aggrieved - Section 738(1)(a) of the Criminal Code provided for a restitution order to be made against an accused in favour of a person who had suffered loss or destruction of property - The Alberta Court of Queen's Bench stated that Parliament could not have intended to eliminate insurers from being able to consider themselves victims for the purposes of applications for remedies under s. 738(1)(a) - See paragraphs 65 to 67.

Criminal Law - Topic 5795

Punishments (sentence) - Restitution - Quantum - The accused was convicted of five counts of fraud and attempted fraud - Counts one and two related to a fraud upon a theatre society in the amount of $110,000 and attempted fraud upon the theatre society in the amount of $97,600 - The theatre society's stolen funds had been taken from one of its Alberta Treasury Branch accounts - Section 738(1)(a) of the Criminal Code provided for a restitution order to be made against an accused in favour of a person who had suffered loss or destruction of property - The Alberta Court of Queen's Bench ordered restitution in favour of the Treasury Branch in the amount of $110,000 plus interest - The court held that no claim for the Treasury Branch's investigation was included in that amount - See paragraphs 70 to 73.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - The accused was convicted of fraud against a theatre society in relation to funds that the latter received as a grant - The Alberta Court of Queen's Bench stated that "It is an aggravating factor, it seems to me, that having been an established and effective - apparently - person involved in the theatre trade, she decided to take advantage of these people with whom she had apparently had a friendly relationship that she exploited as well in the conduct of this offence" - See paragraph 12.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of fraud - She was presently in custody and had been in custody more than once during the history of the matter before the court - The Crown alleged that the accused's pretrial custody was partly justified by fraud allegations beyond those at issue here - The Crown argued that the pretrial custody should not be considered in imposing sentence because the accused was the author of her own misfortune - The Alberta Court of Queen's Bench disagreed - Ultimately, judicial interim release was either granted or denied in connection with the offences for which it applied - Therefore, the justification for taking away judicial interim release was fundamentally those offences and not other offences - There might be other conduct that triggered that effect, but that other conduct had to be kept separate - See paragraphs 28 to 39.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Alberta Court of Queen's Bench stated that, depending on the degree of rigour of the terms of judicial interim release, it could be considered a factor in the calculation, not mitigation, of sentence - See paragraph 39, footnote 14.

Criminal Law - Topic 5859

Sentence - Fraud - The accused was convicted of five counts: (1) fraud upon a theatre society in the amount of $110,000, (2) attempted fraud upon the theatre society in the amount of $97,600, (3) attempted fraud of $100,000 against an individual, (4) fraud over $5,000 upon another individual and (5) uttering a forged land transfer - All counts were alleged to have occurred between January 30 and March 24, 2001 - The Alberta Court of Queen's Bench sentenced the accused to two years' imprisonment - The sentence reflected the totality principle and a reduction of one year for pretrial custody - The court also ordered restitution of $110,000 plus interest.

Criminal Law - Topic 8202

Limitation periods - Applicability of - [See Criminal Law - Topic 5793 ].

Statutes - Topic 8410

Penal statutes - General principles - Interpretation of - [See Criminal Law - Topic 5791 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 26 C.R.N.S. 1; 15 C.C.C.(2d) 524; 44 D.L.R.(3d) 351; 1974 CarswellOnt 8, refd to. [para. 18, footnote 4].

R. v. Millward (R.C.) (2000), 271 A.R. 372; 234 W.A.C. 372; 89 Alta. L.R.(3d) 20; 2000 CarswellAlta 1296; 2000 ABCA 308, refd to. [para. 28, footnote 7].

R. v. Ambrose (B.A.), [2001] 1 W.W.R. 117; 271 A.R. 164; 234 W.A.C. 164; 85 Alta. L.R.(3d) 82; 2000 CarswellAlta 1088; 2000 ABCA 264, refd to. [para. 31, footnote 9].

R. v. Sawchyn, [1981] 5 W.W.R. 207; 30 A.R. 314; 60 C.C.C.(2d) 200; 22 C.R.(3d) 34; 124 D.L.R.(3d) 600; 1981 CarswellAlta 274 (C.A.), leave to appeal denied [1981] 2 S.C.R. xi; 39 N.R. 616; 33 A.R. 198, refd to. [para. 31, footnote 10].

R. v. Wahkeenew (S.J.), [1995] A.W.L.D. 266 (C.A.), refd to. [para. 32, footnote 11].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 184 D.L.R.(4th) 385; 143 C.C.C.(3d) 129; 32 C.R.(5th) 58; 2000 CarswellBC 749; 2000 SCC 18, refd to. [para. 33, footnote 12].

R. v. Arthurs (K.N.), [2000] 1 S.C.R. 481; 252 N.R. 325; 134 B.C.A.C. 274; 219 W.A.C. 274; 2000 SCC 19, refd to. [para. 33, footnote 12].

R. v. Arrance (C.R.), [2000] 1 S.C.R. 488; 252 N.R. 319; 134 B.C.A.C. 268; 219 W.A.C. 268; 2000 SCC 20, refd to. [para. 33, footnote 12].

R. v. Lapointe (D.E.) (1999), 244 A.R. 358; 209 W.A.C. 358; 1999 CarswellAlta 1021 (C.A.), refd to. [para. 35, footnote 13].

R. v. Ewanchuk (S.B.) (2002), 299 A.R. 267; 266 W.A.C. 267; 164 C.C.C.(3d) 193; 5 Alta. L.R.(4th) 73; 6 C.R.(6th) 88; 2002 CarswellAlta 533; 2002 ABCA 95, leave to appeal denied (2003), 310 N.R. 399; 330 A.R. 173; 299 W.A.C. 173; 2003 CarswellAlta 250 (S.C.C.), refd to. [para. 39, footnote 14].

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285; 81 C.C.C.(3d) 471; 20 C.R.(4th) 277; 1993 CarswellOnt 87, refd to. [para. 56, footnote 18].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481; 36 C.R.(4th) 171; 1995 CarswellOnt 4, refd to. [para. 56, footnote 19].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 212 D.L.R.(4th) 1; 100 B.C.L.R.(3d) 1; 18 C.P.R.(4th) 289; 2002 CarswellBC 851; 2002 SCC 42, refd to. [para. 59, footnote 22].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193; 50 C.B.R.(3d) 163; 33 C.C.E.L.(2d) 173; 98 C.L.L.C. 210-006; 1998 CarswellOnt 1, refd to. [para. 59, footnote 23].

Adrien v. Ontario (Minister of Labour) et al. - see Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 738(1)(a) [para. 54].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 59, footnote 21].

Counsel:

Sheila Brown, for the Crown;

Charles Davison, for the accused.

This matter was heard and orally decided by Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, on December 19, 2003. Watson, J., delivered the following edited version of his oral reasons on June 8, 2004, which were filed on June 9, 2004.