Supreme Court

<^<^ c^ 11 0{Q IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HSR MAJESTY THE QUEEN, - and -ORVILLE ELMER WYNESS

Trial held at Hay River, Northwest Territories June 22, 1977 Plea: Guilty Sentence: E igh t Months Judgment d e l i v e r e d o r a l l y June 27, 1977

Counsel on t h e H e a r i n g : Mr. E. Brogden, for t h e Crown Mr. R. H a l i f a x ,

Reasons for Judgment of : The Honourable Mr. J u s t i c e C. F . T a l l i s

for t he accused O r v i l l e Eimer Wyness

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IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN, - and ­r

ORVILLE ELMER WYNESS Counsel on the Hearing: Mr. E. Brogden, for the Crown Mr. R. Halifax, for the Accused REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C. F. TALLIS The accused Orville Eimer Wyness pleaded guilty at the Criminal Jury Sittings at Hay River in the Northwest Territories on the 22nd day of June A.D. 1977 to the following offence: Orville Eimer Wyness Stands charged that he, being entrusted with the receipt of funds payable to the Government of the Northv/est Territories, such funds being thereby a part of the pu blic revenues, did, between the Ist day of January, A.D., 1976 and the 30th day of April, A.D. 1976, at or near Enterprise in the Northwest Territories, knowingly furnish false returns of sums of money entrusted to his care, contrary to Section 357(a) of the Criminal Code of Canada. After hearing extensive submissions with respect to tho matter of sentence I adjourned this matter in order to consider those submissions. I am now going to impose sentence.

- 2 -I have previously stated that the determination of an appropriate and proper sentence for a criminal offence involves a careful and anxious consideration of the various factors to be considered. The position of a trial judge or Appellate Court is succinctly stated by Culliton C.J.S. in Regina v. Morrissette et al, 12 C.R.N.S. 392 at p. 393: There is no problem which causes both the trial Judge and members of this Court more anxious consideration than the deter­mination of an appropriate and proper sentence for a criminal offence. Both trial and appellate judges must be ever mindful of the fact that the principal purpose of the criminal process, of v/hich sentencing is an important element, is the protection of society. From time to time, courts have re­viewed the principles to be considered in the determination of proper sentences. This Court recently did so in Regina v. Kissick (1969), 70 W.W.R. 365. As has been stated many times, the factors to be considered are: (1) punishment; (2) deterrence; (3) protection of the public; and (4) the reformation and rehabilitation of the offender. The real problem arises in deciding the factor to be emphasized in a parti­cular case. Of necessity, the circum­stances surrounding the commission of an offence differ in each case so that even for the same offence sentences miay justifiably show a wide Variation." In addition to the principles outlined in the case of Ä. y. Morrissette et al, supra, I have also carefully reviev;ed the principles of sentencing discussed in the following cases:

- 3 -R. V. Wilmott (1967) 1 C.C.C. 171 at 177-179; R. v. Hinch 62 W.W.R. 205; R. V. Iwaniw; R. v. Overton (1959) , 127 C.C.C. 40. The Manitoba Court of Appeal in i?. v. Iwaniw; R. v. Overton, supra, specifically referred to the following factors that are to be considered in determining an appropriate sentence: "First: the degree of premeditation involved; Second: the circumstances surrounding the actual commission of the offence; i.e. the manner in which it was committed, the amount of violence involved, the employment of an offensive weapon, and, the degree of active participation by each offender; Third: the gravity of the crime committed, in regard to which the maximum punishment provided by Statute is an indication; Fourth: the attitude of the offender after the commission of the crime, as this serves to indicate the degree of criminality in­volved and throws some light on the character of the participant; Fifth: the previous criminal record, if any, of the offender;

Sixth: the age, mode of life, character and personality of the offender; Seventh: any recomraendation of the trial Judge,-any pre-sentence or probation official's report, or any mitigating or other circumstances pro­perly brought to the attention of this Court." ' In this particular case it is to be observed that the accused is charged under Section 357(a) of the Criminal Code of Canada which provides as follows:

- 4 -"357. Every one who, being entrusted with the receipt, custody or management of any part of the public revenues, knowingly furnishes a false Statement or return of (a) any sum of money collected by him or entrusted to his care, or

is guilty of an indictable offence and is liable to imprisonment for five years." It will be seen from the foregoing that the accused is not charged with the offence of fraud which carries a greater punishment than the offence under Section 357 (a) of the Criminal Code. I am not going to review the facts and circumstances of this case in detail because they were dealt with quite fully by counsel in their submissions to me. Furthermore there is little or no dispute over the facts as put forward by counsel for the Crown and the accused. In this particular case the accused has no previous criminal convictions. Apart from this difficulty he has an excellent background. He is a married man of 29 years of age with two children. He now resides in Enterprise in the Northwest Terri-tories. Prior to September of 1973 he was employed with MacDonald Security in Edmonton where he was bonded. During the year 1973 he accepted a position as Deputy Highv/ay Inspector. He was responsible for the handling of and accounting for funds that were taken in at the weigh scale. At this particular scale various types of

i^jsm - 5 ­peirmits and licenses were issued and paid for or in certain cases I charged when this was permitted. The System that was operated ) in connection with this weigh scale was such that the accused and the Inspector were responsible for filing the necessary returns and accounting for the cash that was taken in. Füll details of the Operations were discussed in the submissions on sentence and I am not detailing them at this time. In May of 1976 the Audit Departiment of the Territorial Government commenced a routine audit. Initially certain irregu­larities were discovered but at this time no wrongdoing was suspected. However checks were made by the auditing authorities with the result that there was a discrepancy of $8317.00. The auditors during the course of their investigation found that the sum of $8317.00 matched a missing group of motor vehicle permits and licenses that had been charged. The apparent error v;as solely in credit sales. The permits in question could not be located except in the Motor Vehicle Registry and further checks revealed that some of them had in fact been paid for in cash. In fact they had been recorded by the accused as credit. This Ied to a füll scale investigation with the result that the present charge was laid under Section 357 (a) of the Criminal Code of Canada. The accused ha:̂ admitted furnishing the false returns with respect to sums of money entrusted to his care and it is common ground that he knew that the entries he v/as making were false. At this time no restitution has been made and after giving careful consideration ^

- 6 ­to this matter I do not feel that I can make an order for resti­tution on the basis of the present Charge under Section 357(a) of the Criminal Code of Canada. However, the judgment of this Court in a criminal proceeding does not in any way preclude the Territorial Government from taking appropriate civil proceedings to recover monies that the accused has converted to his own use. In my opinion the Territorial Government has a responsibility to take such proceedings if they are so advised. It is my function to impose an appropriate sentence in this particular case having regard to all the circumstances of the case. I have referred previously to the position of the accused as the Deputy Highway Inspector because in my opinion he was placed in a Position of public trust where he was handling public funds. His background as a security officer was no doubt a factor that was taken into account when he was selected for the position. Unfortunately he has violated the trust that was placed in him and in my opinion this is an important factor that must be taken into account in imposing sentence. Under the circumstances I must impose a sentence that will take into account the various factors I have previously referred to and in this particular case I must give some consideration to the position of trust that this accused occupied. I fully realize that in this particular case the ac­cused has an unblemished record and hopefully he will learn his lesson as a result of the difficulty he now finds himself in. I am optimistic that he will recognize his responsibility and redeem

- 7 ­himself in the eyes of the members of the community. His Super­intendent Mr. Robert McBride of the Department of Highways and f a number of his co-workers have given him excellent character references based on how he has conducted himsisf as a fellow em­ployee since taking up work with that Department. In all likeli­hood favourable consideration will be given to an application for an early work release and from the information furnished to me I would think that serious consideration will be given to having him placed in the South Mackenzie Correctional Centre at Hay River. If this offence did not involve a breach of the trust reposed by a public department in him, I would have been inclined to perhaps grant the accused a suspended sentence. However I feel that persons in a responsible position should be put on notice that if they break their trust to the members of their own community they can expect to receive punishment for having done so. In this particular case the accused has pleaded guilty and through his Counsel has candidly admitted his involvement in this illegal activity. Having considered the circumstances of this offence and applying the principles of sentencing to the present case I there­fore sentence the accused Orville Eimer Wyness to a term of eight months imprisonment.

- 7 -Dated at Yellowknife, Northwest Territories this 27th day of June, 1977.

C. F. Tallis, J.S.C

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