Executive Summary: Key Legal and Evidentiary Issues

• Legality and fitness of a 12-month custodial sentence for identity fraud, fraud over $5,000, possession of identity information, and breach of probation following guilty pleas.
• Impact of the appellant’s prior record for multiple dishonesty offences and his being on probation at the time of the new offences on sentence severity and risk assessment.
• Allegation that the Crown failed to honour a plea agreement and whether any such agreement or repudiation was supported by the record.
• Significance of the absence of victim impact statements and whether this diminishes the perceived harm to the community or affects sentencing.
• Relevance, if any, of the appellant’s near-release on bail to the sentencing analysis and whether it can mitigate the need for denunciation and deterrence.
• Appellate threshold for intervening in a sentence and the “very high” standard for demonstrating that a sentence is demonstrably unfit.

Facts of the case
Mathieu Després was prosecuted in the Provincial Court of New Brunswick for a series of offences arising from an attempt to obtain substantial credit using another person’s identity. He used the identity of an individual identified as L.M.H. to apply for financing to purchase a Polaris Xpedition Adv Ultimate, a side-by-side vehicle, from Rallye Motoplex, in an amount of approximately $85,000. The scheme unfolded between October 9 and 15, 2024, and centred on using stolen identity information to secure high-value credit for this recreational vehicle.
The Crown charged him with five counts, of which one was later withdrawn. He ultimately pleaded guilty to four offences under the Criminal Code. The first was personation with intent, contrary to s. 403(1)(b), for fraudulently impersonating L.M.H. to obtain the Polaris vehicle owned by Rallye Motoplex. The second was fraud over $5,000 under s. 380(1)(a), alleging that he attempted, by deceit and other fraudulent means, to defraud Rallye Motoplex of a value exceeding five thousand dollars. The third offence was possession of another person’s identity information in circumstances giving rise to a reasonable inference that he intended to use it to commit an indictable offence, contrary to s. 402.2(5)(a). The fourth count was a breach of an existing probation order under s. 733.1(1)(a), based on his commission of the above offences while still subject to probationary terms from an earlier sentence.
The scheme was interrupted before any financial loss crystallized. An employee of Rallye Motors detected irregularities and suspected fraud prior to Després arriving to take delivery of the vehicle. The business contacted the RCMP in anticipation of his attendance. When he arrived and began signing documents in the name of L.M.H., officers were already on site and arrested him at the scene. Although no actual monetary loss was suffered, the conduct involved planning, sophistication and a substantial potential exposure for the merchant and credit provider.
Després’ background was highly relevant to the sentencing exercise. The record before the sentencing judge showed that in 2021 he had been convicted of numerous dishonesty-related offences, including possession of stolen identification, possession and use of stolen credit cards, possession of forged documents, theft of mail and possession of break and enter tools. For those matters, he had received a two-year conditional sentence followed by 12 months’ probation. At the time of the new identity-fraud-related conduct, he remained on probation from that earlier disposition, underscoring both recidivism and disregard for court-imposed conditions.

Sentencing at first instance
At the sentencing hearing, the Crown sought a total of 12 months’ incarceration, less four months credit for time already served in custody on these matters. Defence counsel, appearing for Després at that stage, argued that the appropriate sentence would be limited to time served. The sentencing judge reviewed the nature and gravity of the offences, with particular emphasis on the seriousness of identity fraud and the misuse of stolen identity information to secure substantial credit.
In evaluating proportionality and the need for denunciation and deterrence, the judge considered several aggravating features: the planning and deliberation involved in the scheme, the sophistication of Després’ conduct, the high value of the targeted side-by-side vehicle, the fact that no loss occurred only because an employee detected the fraud in time, and the fact that he was on probation when he committed the offences. The judge noted that the 12-month sentence proposed by the Crown was “a bit low” in light of these factors and found the defence’s proposal of a four-month effective custodial term inordinately low and unacceptable. Nevertheless, the judge imposed a total custodial sentence of 12 months and made an ancillary DNA order. There is no indication in the decision of any fine, restitution order, or other monetary component of the sentence.

Grounds of appeal
Després, acting on his own behalf, applied to the Court of Appeal of New Brunswick for leave to appeal the sentence. He advanced four main grounds. First, he argued that the sentence was excessive and unreasonable, effectively contending that a 12-month custodial term was disproportionate to the circumstances. Second, he claimed that the Crown had not honoured a plea agreement, suggesting that there had been an undertaking or arrangement regarding the sentencing position that was not respected. Third, he maintained that because no victim impact statements were filed, his offences had no real impact on the community and that this should have been reflected in a more lenient sentence. Fourth, he pointed to the fact that he was nearly released on bail on two occasions as purported evidence that he did not pose a risk to the community and that this should have mitigated the ultimate term of imprisonment.

Appellate analysis of the sentence
The Court of Appeal began by reaffirming the high degree of deference owed to sentencing judges. On a sentence appeal, intervention is limited to situations where there has been an error in principle, a failure to consider a relevant factor or an overemphasis on an irrelevant one, or where the sentence is demonstrably unfit. The court cited the Supreme Court of Canada’s decision in R. v. Lacasse, which characterizes the threshold for establishing that a sentence is demonstrably unfit as “very high.” Against that framework, the appellate judges reviewed the record and the reasons of the Provincial Court judge.
In relation to the first ground, the court held that the 12-month sentence was clearly reasonable. The sentencing judge had properly weighed the seriousness of identity fraud, the use of stolen identity information to apply for credit, the prior record for multiple discrete dishonesty offences and the fact that Després reoffended while still on probation. The judge expressly considered both the Crown and defence positions and explained why the defence proposal was unacceptably low. On this record, there was no basis to conclude that the sentencing principles of proportionality, denunciation, deterrence, and rehabilitation had been misapplied or that the sentence fell outside the acceptable range.
Regarding the allegation that the Crown repudiated a plea agreement, the Court of Appeal found that there was no evidentiary support. The record did not substantiate the existence of an enforceable plea bargain that the Crown later disregarded, nor did it show any unfairness or abuse of process in the Crown’s sentencing submissions. The court therefore rejected this ground.
On the third ground, the court addressed Després’ argument that the absence of victim impact statements meant his crimes had no impact on the community. The court clarified that victim impact statements are not a prerequisite to sentencing; rather, they are a right afforded to victims who choose to participate in the process. The fact that no victim submitted such a statement does not imply that there was no harm or that the community impact was negligible, and no negative inference could be drawn against the Crown or the seriousness of the offence on that basis.
As to the final ground, the court considered his submission that near-release on bail showed he would not pose a risk to the community and should have influenced the sentence. The appellate judges noted that the record did not support his assertion about the bail history in the manner he described. More importantly, whether he might have been released on bail was not a relevant factor at sentencing, let alone one capable of overriding the central principles of denunciation and deterrence for serious fraud and identity-theft-related offences. The court concluded that the sentencing judge made no legal or principled error and did not impose an unreasonable sentence.

Outcome and significance
Having rejected each of the grounds advanced by Després, the Court of Appeal held that there was no reasonable prospect of success on a sentencing appeal. In light of the deference owed to sentencing judges and the “very high” threshold for showing that a sentence is demonstrably unfit, the court declined to grant leave to appeal and dismissed the application. The result is that the original sentence of 12 months’ incarceration and the DNA order imposed by the Provincial Court remain in force.
The successful party in the appellate proceedings is the respondent, His Majesty the King, as the Crown’s position in support of the original sentence prevailed and the application for leave to appeal was dismissed. No monetary award, costs, damages, fines, or restitution orders are specified in the appellate decision, and on the face of this decision the total amount ordered in favour of the successful party cannot be determined beyond noting that no additional monetary relief is recorded.