R. v. Wilder (D.M.), 2008 BCCA 370

JudgeNewbury, Levine and Tysoe, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateSeptember 19, 2008
JurisdictionBritish Columbia
Citations2008 BCCA 370;(2008), 259 B.C.A.C. 236 (CA)

R. v. Wilder (D.M.) (2008), 259 B.C.A.C. 236 (CA);

    436 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.010

Regina (appellant) v. Dara Wilder (respondent)

(CA031910; 2008 BCCA 370)

Indexed As: R. v. Wilder (D.M.)

British Columbia Court of Appeal

Newbury, Levine and Tysoe, JJ.A.

September 19, 2008.

Summary:

The accused was convicted of seven counts of fraud and one count of possessing the proceeds derived from that fraud. The frauds occurred in 1984 and 1985 as part of a scheme whereby the federal government paid out $38 Million in tax credits to two companies which claimed research and development expenses that had never been incurred. The accused received some of the fraud proceeds. None of the monies were recovered. The trial judge sentenced the accused to nine years' imprisonment plus restitution of $5 Million. The accused appealed his sentence, submitting that it was excessive and harsh.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 2948

Language - Criminal proceedings - Reliance on untranslated French caselaw - An accused appealed his sentence on the ground that the trial judge referred to and relied on a Quebec Court of Appeal decision decided in French, violating his rights under s. 15 (equality) and s. 16 (language) of the Charter - The British Columbia Court of Appeal rejected the submission, noting that "the appellant claims that the decision was available only in French. However, the citation provided by the trial judge is to the reasons for judgment in English [English translation of original French judgment]." - See paragraph 9.

Courts - Topic 685

Judges - Disqualification - Bias - General - [See Criminal Law - Topic 5814 ].

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The accused was the "kingpin" of a scheme that defrauded the federal government of $38 Million - The accused was sentenced to nine years' imprisonment for seven counts of fraud and one count of possession of the proceeds of crime - He was also ordered to make $5 Million in restitution - The accused appealed the restitution order on the ground that, inter alia, the trial judge failed to give sufficient consideration to the accused's ability to pay $5 Million, given his lengthy jail sentence, his age and the length of the criminal proceedings - The British Columbia Court of Appeal dismissed the appeal - The trial judge properly considered the accused's financial means and ability to pay, the egregious nature and magnitude of the fraud - He also noted that two co-accused, of lesser moral blameworthiness, had been ordered to make restitution of $1 Million each - There was no basis to interfere with the trial judge's conclusion - See paragraphs 11 to 19.

Criminal Law - Topic 5814

Sentencing - Sentencing procedure and rights of accused - Right of accused to be heard (sentencing submissions) - An accused appealed his sentence on the ground that the trial judge, by having his sentencing decision ready immediately after the accused's sentencing submissions, failed to consider the accused's submissions - The British Columbia Court of Appeal rejected the submission, stating that "the fact that the trial judge had his reasons for sentence ready immediately following the appellant's sentencing submissions does not indicate that he failed to consider the appellant's submissions or that he was biased. He had listened to the evidence in the case for the two years of the trial, and heard three days of sentencing submissions. His reasons for sentence outlined the background of the offences, the circumstances of the appellant, and the legal principles applicable to sentencing for the offences, all of which he would have known before the sentencing hearing. It is not surprising that after being involved with the case for more than three years he would have formed at least a preliminary opinion concerning the appropriate sentence before the end of the submissions. As the trial judge heard the submissions of both Crown counsel and the appellant, he would have tested them against his preliminary opinion in reaching his final determination. This is the normal way a trial judge hears, considers, and assesses submissions in coming to his conclusion as to the appropriate judgment. It does not indicate that the judge did not keep an open mind until the conclusion of the submissions. The trial judge made no reviewable error." - See paragraph 9.

Criminal Law - Topic 5859

Sentence - Fraud - The accused was part of a fraudulent scheme whereby the federal government paid $38 Million in tax credits to two companies which claimed research and development expenses that had never been incurred - The accused, who was found to be the "kingpin" of the operation, received some of the monies and none of the $38 Million was ever recovered - The trial judge sentenced the accused to a total of nine years' imprisonment for seven counts of fraud and one count of possessing the proceeds of crime - The accused was also ordered to make restitution in the amount of $5 Million - Co-accused received seven year sentences and restitution of $1 Million - The accused appealed, submitting that the sentence was excessive and harsh - The British Columbia Court of Appeal dismissed the appeal - The total sentence fell within the appropriate range - The motive was greed and the accused accepted no responsibility for the offences - There were no mitigating factors and little prospect of rehabilitation - Denunciation and deterrence were not over-emphasized - See paragraphs 9 to 10.

Criminal Law - Topic 5972

Sentence - Money laundering or proceeds of crime - [See Criminal Law - Topic 5859 ].

Cases Noticed:

R. v. Lawrence (R.E.) (1996), 82 B.C.A.C. 255; 133 W.A.C. 255 (C.A.), refd to. [para. 3].

R. v. Richards (M.B.) et al. (1996), 70 B.C.A.C. 161; 115 W.A.C. 161 (C.A.), refd to. [para. 3].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 6].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 6].

R. v. Chusid (S.), [2001] O.T.C. 866; 57 O.R.(3d) 20 (Sup. Ct.), refd to. [para. 9].

R. v. Savard (1996), 109 C.C.C.(3d) 471 (Que. C.A.), refd to. [para. 9].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239; 141 C.C.C.(3d) 245 (C.A.), refd to. [para. 14].

R. v. Yates (A.E.) (2002), 174 B.C.A.C. 119; 286 W.A.C. 119; 169 C.C.C.(3d) 506; 2002 BCCA 583, refd to. [para. 18].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 24].

Counsel:

L. Smith, for the Crown/appellant;

Dara Wilder, on his own behalf.

This appeal was heard on September 15, 2008, at Vancouver, B.C., before Newbury, Levine and Tysoe, JJ.A., of the British Columbia Court of Appeal.

On September 19, 2008, the judgment of the Court was delivered orally and the following opinions were filed:

Levine, J.A. - see paragraphs 1 to 28;

Newbury, J.A. - see paragraphs 29, 31;

Tysoe, J.A. - see paragraph 30.

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10 practice notes
  • R. v. Port Chevrolet Oldsmobile Ltd. et al., 2010 BCCA 47
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 25 Enero 2010
    ...Bjellebo (E.S.) et al. (2003), 177 O.A.C. 378; 2003 D.T.C. 5659 (C.A.), refd to. [para. 12]. R. v. Wilder (D.M.), [2009] 1 C.T.C. 246; 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. 12]. R. v. Elless (J.S.) et al., [2007] B.C.T.C. Uned. H71; 2007 BCSC 962, refd to. [para. ......
  • R. v. Eizenga,
    • Canada
    • Court of Appeal (Ontario)
    • 24 Septiembre 2010
    ...1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 106]. R. v. Wilder (D.M.), [2004] B.C.T.C. 644; 2004 BCSC 644, affd. (2008), 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. R. v. Lawrence (R.E.) et al. - see R. v. Wilder (D.M.). Statutes Noticed: Criminal Code, R......
  • R v Dyck, 2018 MBCA 33
    • Canada
    • Court of Appeal (Manitoba)
    • 5 Abril 2018
    ...provisions of the Income Tax Act had no application to limit the sentence for fraud charges under the Criminal Code (see R v Wilder, 2008 BCCA 370 at para [19] When the bases of the arguments in each case are examined, I am of the view that there is no inconsistency in the outcomes. While i......
  • R. v. Purdy (K.K.), 2010 BCCA 413
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 13 Septiembre 2010
    ...refd to. [para. 31]. R. v. Wilder (D.M.), [2007] B.C.A.C. Uned. 78; 2007 BCCA 344, refd to. [para. 31]. R. v. Wilder (D.M.) (2008), 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. R. v. Garcha (J.J.) (2000), 143 B.C.A.C. 245; 235 W.A.C. 245; 2000 BCCA 550, refd to. [para. 3......
  • Request a trial to view additional results
10 cases
  • R. v. Port Chevrolet Oldsmobile Ltd. et al., 2010 BCCA 47
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 25 Enero 2010
    ...Bjellebo (E.S.) et al. (2003), 177 O.A.C. 378; 2003 D.T.C. 5659 (C.A.), refd to. [para. 12]. R. v. Wilder (D.M.), [2009] 1 C.T.C. 246; 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. 12]. R. v. Elless (J.S.) et al., [2007] B.C.T.C. Uned. H71; 2007 BCSC 962, refd to. [para. ......
  • R. v. Eizenga,
    • Canada
    • Court of Appeal (Ontario)
    • 24 Septiembre 2010
    ...1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 106]. R. v. Wilder (D.M.), [2004] B.C.T.C. 644; 2004 BCSC 644, affd. (2008), 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. R. v. Lawrence (R.E.) et al. - see R. v. Wilder (D.M.). Statutes Noticed: Criminal Code, R......
  • R v Dyck, 2018 MBCA 33
    • Canada
    • Court of Appeal (Manitoba)
    • 5 Abril 2018
    ...provisions of the Income Tax Act had no application to limit the sentence for fraud charges under the Criminal Code (see R v Wilder, 2008 BCCA 370 at para [19] When the bases of the arguments in each case are examined, I am of the view that there is no inconsistency in the outcomes. While i......
  • R. v. Purdy (K.K.), 2010 BCCA 413
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 13 Septiembre 2010
    ...refd to. [para. 31]. R. v. Wilder (D.M.), [2007] B.C.A.C. Uned. 78; 2007 BCCA 344, refd to. [para. 31]. R. v. Wilder (D.M.) (2008), 259 B.C.A.C. 236; 436 W.A.C. 236; 2008 BCCA 370, refd to. [para. R. v. Garcha (J.J.) (2000), 143 B.C.A.C. 245; 235 W.A.C. 245; 2000 BCCA 550, refd to. [para. 3......
  • Request a trial to view additional results

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