Alberta Court of Appeal rules mitigating factors should have had more consideration in judgement
A disbarred lawyer’s one-year jail sentence has been reduced to 90 days to be served on weekends, following an Alberta Court of Appeal decision released today.
Shawn Beaver, a former Edmonton criminal lawyer suspended and disbarred by the Law Society of Alberta after having stolen from clients’ trust accounts, will also have to provide 200 hours of community service under the revised sentence of the appeal court.
“We conclude that the chambers judge erred in arriving at the sanction of one-year incarceration,” wrote Justice Jack Watson on behalf of the three-judge panel hearing the appeal. “On assessing mitigating factors, it is an error to wholly reject, as opposed to properly weigh, those factors advanced by Mr. Beaver.
“These are accepted every day in criminal courts: Mr. Beaver’s personal circumstances, character, current lifestyle, promise to change his behaviour, and the effect of imprisonment on his family. Additionally, it is too great a ‘jump’ to impose a first-time incarceration of one year.”
However, the court dismissed Beaver’s appeal on the contempt allegation, rejecting the former lawyer’s argument that the injunction was interlocutory and expired when his status changed from suspension to disbarment, such that he was not in contempt of court for his activities post-disbarment.
The court ruled: “In essence, the injunction sought to enjoin Mr. Beaver from the unauthorized practice of law. His status change did not alter or affect his legal authority to practise law. In the same way that he could not engage in the practice of law while suspended, he was equally bound by those restrictions post-disbarment.
“The foundation for the injunction, being a desire to protect the public from such unauthorized practice, remained unaffected, and existed independently of his change in status.”
In trying to determine a fitting sentence for Beaver, the appeal court considered similar cases, though not entirely on point. The cases include a lawyer who “flagrantly breached” an injunction over several years by providing legal services while suspended, who received a conditional sentence of four months.
Another case involved a disbarred lawyer who continued practising law for decades in breach of an injunction. He made no acknowledgement of wrongdoing and received the sanction of one-month incarceration and 100 hours of community service.
Beaver’s intermittent prison sentence will start Friday, May 14. He is to go into custody on Fridays at 7 pm and remains in jail until 7 am on Mondays. Each of these weekends will count as four days towards his sentence.
The appeal court credited Beaver with ten days to reflect the time that he spent in custody under the original sentence.
The sentence reduction comes after Beaver was sentenced to jail for one year on Feb. 23. He went into the Edmonton Remand Centre three days later. He was released after seven days while waiting for the appeal court decision.
Associate Chief Justice John Rooke wrote at the time of the original sentence that 52-year-old Beaver’s “highly aggravating contemptuous illegal conduct favours a heavy step by the court. He cannot purge his contempt.”
Justice Rooke rejected the argument that Beaver “is the kind of person who would abide by and respect the licensing and professional requirements set out by the Act and orders of the court.” He also put no weight on Mr. Beaver’s concern with interruptions to his current employment and associated financial impact on his family.
Justice Watson wrote that “He [Rooke] placed little weight on Mr. Beaver’s current pro-social lifestyle, the affidavits of his daughters, and the nine letters of support from students and a former receptionist. He summarized his conclusions by saying that Mr. Beaver had a lack of mitigating factors.”
However, the appeal court ruled that while mitigating factors are within the discretion of the chambers judge, “it was an error in principle to wholly reject” the mitigating factors set out by Beaver.
“In determining the sanction for contempt, a chambers judge may place lesser weight on a number of these factors, but they cannot be wholly rejected as mitigating in any way.”
The Law Society of Alberta pointed to the chambers judge’s findings that Beaver’s apology devoid of remorse and that to place any weight upon him having changed his ways, the court would have to trust him and “simply put, [it does] not.”
The chambers judge also said: “If anything, the ‘epiphany’ and statement that it is the risk of jail that has changed Mr. Beaver’s pattern of conduct reinforces that incarceration is the only effective way to effect specific deterrence against this specific contemnor.”
The LSA argued that since his suspension in 2015, nothing stopped Beaver from engaging in the illegal practice of law, and the only effective way to deter him is incarceration.
In the appeal court ruling, Watson wrote that the panel was not present for Beaver’s apology, and therefore could not weigh in on its sincerity. “In determining whether an apology is sincere, many considerations come into play: wording, tone, timing, attitude, body language, and other observable factors. These are matters immediate to the chambers judge but not to this court.
“It would be inappropriate to discount all of these advantages of the chambers judge.”
Beaver was disbarred in February 2017 after the LSA found he had stolen money from clients’ trust accounts held by his firm. Among money held in trust were funds meant for a mentally disabled, alcoholic and drug-addicted street person, which Beaver misappropriated, Rooke wrote, “so as to maintain Mr. Beaver’s lifestyle spending.”
While the case was under consideration, the court issued an injunction prohibiting Beaver from doing any legal work.
In August 2017, junior lawyer Clipo Florence Jura contacted Beaver for legal tutoring. It was then that Beaver proposed to Jura that they collaborate to provide legal services. Beaver would get clients, take the lead on files, direct legal strategy, prepare submissions and communications, while Jura would act as the “front” for Mr. Beaver’s unlicensed legal services in court. Jura has also been disbarred.
In May 2020, Justice Rooke determined Beaver was guilty of contempt of court by deliberately violating that injunction not to practise by using another lawyer as his cover.
The LSA’s Sharon Heine argued in a written submission that Beaver also provided covert legal services to two of his friends and once even went to court to support a friend facing a criminal charge.
Heine also wrote that just a week after Beaver was found guilty of contempt in May 2020, he posted an ad on Kijiji titled, “Legal instruction from the best.” After the law society raised concerns, Beaver deleted the ad.
In an email statement, Beaver said he is "obviously pleased" with the reduced sentence, as it "reflected that there was some redeeming quality in me as a person, and as a contributing member of society." Regarding community service, Beaver said he is "happy to take that on at any time."
However, Beaver said he was "disappointed" that the appeal against the injunction was dismissed," and that his counsel "will likely take that issue to Ottawa."
"Ultimately I am highly educated in the law and should not be prevented from earning a living with my education, at least in some form."
Beaver added: "I think the more interesting story is the life of lawyers post-disbarment and the level of pursuit (or non pursuit) of them by various law societies. We cannot help the knowledge we have, and certainly it can be put to some compensable use, particularly in this era where access to justice is a real issue. There are a lot of stories out there, mine is just one of them."
Neither the law society nor Beaver’s lawyer, Simon Renouf, could be reached for comment.