R. v. Wisniewski (R.), (2002) 166 Man.R.(2d) 73 (CA)

• Judge: Huband, Kroft and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 02, 2002
• Jurisdiction: Manitoba
• Citations: (2002), 166 Man.R.(2d) 73 (CA);2002 MBCA 93

R. v. Wisniewski (R.) (2002), 166 Man.R.(2d) 73 (CA);

    278 W.A.C. 73

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. JL.020

Her Majesty The Queen (appellant/respondent) v. Rafal Wisniewski (accused/respondent/appellant)

(AR 00-30-04784; AR 00-30-04787; 2002 MBCA 93)

Indexed As: R. v. Wisniewski (R.)

Manitoba Court of Appeal

Huband, Kroft and Steel, JJ.A.

June 27, 2002.

Summary:

An accused was convicted of public mischief and attempted fraud over $5,000. He was sentenced to a conditional discharge for two years and probation. One of the conditions of the probation order required the accused to pay $3,500 to a registered charity of his choice. The accused appealed the conviction. The Crown appealed the sentence.

The Manitoba Court of Appeal allowed the Crown's appeal, set aside the sentence and substituted a fine of $3,500. The court dismissed the accused's appeal.

Criminal Law - Topic 4429

Procedure - Verdicts, discharges and dismissals - Discharge - Generally - The Manitoba Court of Appeal stated that, although not common, discharges were available in fraud cases - Most of the fraud cases where discharges were granted had involved exceptional circumstances - See paragraph 23.

Criminal Law - Topic 4431

Procedure - Verdicts, discharges and dismissals - Conditional discharge in lieu of conviction - An accused, aged 25, was convicted of public mischief and attempted fraud over $5,000 - The accused pushed his vehicle into a river and reported it as stolen - Motivated by profit - The sentencing judge commented that a monetary penalty was required, but expressed concern on the impact that a criminal record would have on the accused's immigration status - The judge imposed a two year conditional discharge and a probation order - As a condition of the probation, the accused had to pay $3,500 to a registered charity of his choice - The Manitoba Court of Appeal set aside the sentence and substituted a $3,500 fine - The accused's immigration status was a deciding factor in the trial judge's decision not to impose a fine which was an error in principle - If the circumstances required a fine, it should have been imposed as a fine and not as a charitable donation - The court commented on the practice of ordering a charitable donation as a condition of probation - See paragraphs 20 to 25.

Criminal Law - Topic 5735.1

Punishments (sentence) - Probation or probation order - Charitable donations - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect of conviction on citizenship or immigration application - [See Criminal Law - Topic 4431 ].

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect of conviction on citizenship or immigration application - The Manitoba Court of Appeal stated that while jurisprudence indicated that an accused's immigration status was one of the factors to be considered by a sentencing judge, it was not so decisive that the sentencing judge should grant a conditional or absolute discharge where it would not otherwise be appropriate - Nonetheless, in Manitoba at least, it was established that when the choice was between a discharge and a disposition involving a criminal record, the accused's immigration status was one of the factors which the sentencing judge could consider provided that it was not the deciding factor - See paragraphs 14 to 19.

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 4429 and Criminal Law - Topic 4431 ].

Cases Noticed:

R. v. Melo (1975), 26 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 15].

R. v. Chiu (1984), 31 Man.R.(2d) 15 (C.A.), refd to. [para. 16].

R. v. Shokohi-Manesh (1991), 8 B.C.A.C. 263; 17 W.A.C. 263; 69 C.C.C.(3d) 286 (C.A.), refd to. [para. 16].

R. v. Abouabdellah (1996), 109 C.C.C.(3d) 477 (Que. C.A.), refd to. [para. 16].

R. v. Fung (1973), 11 C.C.C.(2d) 195 (Alta. C.A.), refd to. [para. 17].

R. v. Kerr (1982), 43 A.R. 254 (C.A.), refd to. [para. 17].

R. v. Mendoza (L.N.) (1993), 135 A.R. 395; 33 W.A.C. 395 (C.A.), refd to. [para. 17].

R. v. Gbeve (L.F.K.) (2001), 156 Man.R.(2d) 149; 246 W.A.C. 149 (C.A.), refd to. [para. 19].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 20].

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, refd to. [para. 20].

R. v. Candelaria (A.C.) (2002), 163 Man.R.(2d) 152; 269 W.A.C. 152 (C.A.), refd to. [para. 20].

R. v. McIsaac (L.) et al., [1998] B.C.T.C. Uned. B62 (S.C.), refd to. [para. 23].

R. v. Tassopoulos (1994), 24 W.C.B.(2d) 204 (Ont. Prov. Div.), refd to. [para. 23].

R. v. Liu, [1996] O.J. No. 2908 (Prov. Div.), refd to. [para. 26].

R. v. Oliver (E.M.) (1997), 147 Nfld. & P.E.I.R. 210; 459 A.P.R. 210 (Nfld. C.A.), refd to. [para. 28].

R. v. Zelensky (1976), 33 C.C.C.(2d) 147 (Man. C.A.), refd to. [para. 28].

R. v. Prokos (1998), 127 C.C.C.(3d) 190 (Que. C.A.), refd to. [para. 30].

R. v. M.A.F.A. Inc., [2000] O.J. No. 1773 refd to. [para. 30].

R. v. McKeigan, [2000] O.J. No. 1598 (C.J.), refd to. [para. 30].

R. v. DeKleric, [1969] 2 C.C.C. 367 (B.C.C.A.), refd to. [para. 31].

R. v. McMeekin, [1991] N.W.T.J. No. 11 (C.A.), refd to. [para. 31].

R. v. Russell, [1982] A.J. No. 421 (C.A.), refd to. [para. 31].

R. v. Schell (J.R.) (2002), 313 A.R. 125 (Q.B.), refd to. [para. 31].

Counsel:

T.H. MacKean, for the Crown;

M.D. Glazer, for the accused.

This appeal was heard on May 2, 2002, by Huband, Kroft and Steel, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment for the court on June 27, 2002.