A man convicted of scamming senior citizens in Newfoundland and Nova Scotia should be serving the remainder of his sentence in prison, according to legal experts consulted by CBC News and new appeal documents filed by Crown prosecutors.
Newfoundland and Labrador Chief Justice Raymond Whalen gave 25-year-old Charles Gillen a four-year sentence for his role as a courier in a grandparent scam that conned more than a dozen seniors out of a combined $139,000 in 2023.
Whalen then granted Gillen just over two years’ credit for a series of successful defence applications related to the time he’d already spent in custody and on bail.
With the remaining time being less than two years, Whalen said Gillen was eligible for a conditional sentence order (CSO) to be served at home instead of in a penitentiary.
Experts consulted by CBC News say that was a mistake — that the Supreme Court of Canada in a 2005 decision called R v. Fice stated a conditional sentence is only available if the total sentence is less than two years, not the remaining sentence after credits are subtracted.
“Such a sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender has spent in pre-sentence custody,” the Fice decision reads. “The conditional sentence regime was not designed for those offenders for whom a penitentiary term is appropriate.”
Lisa Kerr, an associate professor of law at Queen’s University, said it looks like the conditions set out by the country’s top court were not followed in Gillen’s case.
“It appears that this trial judge decided, with very careful analysis, that a fit sentence for these offences was four years,” Kerr said. “The logic of Fice would then suggest that a conditional sentence is not available, even once the application of pre-trial credit brought the sentence below two years.”
Newfoundland and Labrador’s Chief Justice Raymond Whalen presided over the sentencing hearing on March 30. (Ryan Cooke/CBC)
Kerr’s assessment was backed up by Dalhousie associate professor Adelina Iftene, and a senior prosecutor consulted by CBC News who was not authorized to speak publicly.
“Eligibility for a CSO is considered based on the actual sentence, which is the sentence before discounts,” Iftene said. “So if the sentence was four years before discounts, he wouldn’t be eligible for a CSO.”
Crown prosecutors in Newfoundland and Labrador are now seeking to appeal Whalen’s decision, saying the appropriate remedy would be for Gillen’s CSO to be set aside, and for him to serve the remainder of his sentence behind bars.
They also took issue with the overall sentence, calling it “demonstrably unfit.”
Judge questioned CSO during hearing
Chief Justice Whalen made his decision after a pair of hearings where the Crown prosecutor Mark James and defence lawyer Andrea Vizsolyi gave their sentencing submissions.
The defence had requested a sentence of between 30 to 60 days for each of the 16 counts to be served consecutively, with some being covered as time served and the remainder being allotted as house arrest.
James asked for a sentence just shy of four years.
In the end, Whalen did grant Vizsolyi’s request for the remainder of the sentence to be served as house arrest, though not in the way she had requested.
During the second sentencing hearing, Whalen questioned the legality of a house arrest if the total ran more than two years.
“The global sentence would have to be no more than two years,” Whalen said.
“So just for clarity, the proposal that I was putting forward was more of a blended sentence,” Vizsolyi responded. “So the time that was already spent in custody would be incarcerable time, but the balance of the sentence could be served as house arrest because based on the numbers I’ve provided to the court, he would then be under two years for the balance of the sentence.”
“It doesn’t work that way,” Whalen said. “It has to be … a sentence of less than two years.”
Vizsolyi said her understanding was that her submissions were appropriate, and noted she had handled another recent case in a similar manner with James as prosecutor.
Whalen did not cite R v. Fice in his written decision.
Judge says reparations top of mind in sentencing
Gillen flew to Newfoundland on Feb. 28, 2023.
He immediately went to work collecting money from senior citizens who believed they were providing bail money for their loved ones who they believed were in trouble, according to an agreed statement of facts in the case.
Vizsolyi said Gillen played only a small role in a larger organized crime scheme. He was arrested on board a commercial flight, minutes from leaving the province for Montreal.
He pleaded guilty last year, setting the stage for his sentencing late last month.
The decision left shock in the courtroom, since Whalen had previously said he felt the Crown’s suggestion of a sentence just shy of four years was too lenient.
Whalen’s decision was a rollercoaster for Gillen. He stated the appropriate term for each of his 16 counts should be 18 months imprisonment served consecutively, which would be a total of 24 years.
He then shrunk that sentence down to four years after considering the principle of totality — a legal concept that allows judges to look at the entire sentence of all combined charges and reduce it if the total would be unduly harsh.
Whalen then subtracted 295 days for time served, 200 days for the conditions Gillen faced at Her Majesty’s Penitentiary in St. John’s, and another 100 days for abiding by strict bail conditions after his release.
That brought the remaining sentence to 728 days — two days under the two-year marker.
He wanted Gillen to be able to work to repay the victims he stole from, who ranged in age from 70 to 88 years old.
Gillen was visibly stunned when Whalen ordered the remainder of his sentence be served at home in Winnipeg, under conditions that he abide by a curfew of 10 p.m. to 6 a.m., keep the peace and be of good behaviour, and pay back $70,000 of unrecovered money within four years.
He walked out of the courtroom that day with his wife, free to return home to Manitoba.
The Crown filed documents with the court of appeal on April 14, saying the judge erred in law on numerous fronts — including the conditional sentence order, the overall sentence, the decision to allow Gillen to reside in Manitoba, Whalen’s application of the totality principle, and the imposition of a probation order.
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