Monday, October 29, 2012

Status as lawyer aggravating factor in fraud

R. v. McLellan, 2012 ONCA 717 is a current source for the principle that a lawyer will be sentenced more harshly than others if the lawyer uses their professional capacity to facilitate the crimes:

[26] The trial judge correctly observed that crimes such as the one for which the appellant was being sentenced impact the community in a profound and significant way. Quoting from the decision of Taliano J. in R. v. Gross, [2000] O.J. No. 3479 (S.C.), at paras. 16 to 18, she noted that public confidence in the reliability of financial transactions conducted by lawyers is eroded where, as here, a lawyer breaches the trust he owes to his clients and to his community.

[27] This court and other Canadian appellate courts have dealt with the significance and impact of lawyers who commit fraudulent breaches of trust within the context of their professional capacities. The primary sentencing principle at play in these types of cases is general deterrence and denunciation, or the repudiation of the conduct for which the offender was found guilty. The secondary considerations are specific deterrence, rehabilitation and any mitigating circumstances such as a plea of guilty or cooperation with the authorities: R. v. Scherer (1984), 16 C.C.C. (3d) 30 (Ont. C.A.), at p. 34.

[28] Doherty J.A. outlined why an offender's status as a lawyer is a significant aggravating factor in R. v. Rosenfeld, 2009 ONCA 307, 94 O.R. (3d) 641, at para. 40:

[A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).

[29] Therefore, I agree with the trial judge that, notwithstanding the appellant's personal challenges and triumphs, and despite his reputation in his community and his past good works, the fact that he is a lawyer who has used his professional capacity to facilitate the crimes for which he has been convicted is a significant aggravating factor.

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