June 25, 2007

Ontario Court of Justice

Between

Her Majesty the Queen

And

[REDACTED]

[REDACTED], for the accused

Released: June 25, 2007

[REDACTED]

R U L I N G

A. INTRODUCTION

1. The defendant, [REDACTED], pled guilty to 64 charges arising from her perpetration of a series of frauds over the course of approximately fourteen months, from early April 2005 until her final arrest in late May 2006. She has been in custody for the thirteen months since that arrest.

2. Ms. [REDACTED] abused her access to confidential health records to exploit the trusting

nature of dozens of very elderly and vulnerable persons from whom she would steal various banking instruments. She then used these credit and debit cards, and sometimes cheques, to make fraudulent purchases and withdrawals for her own benefit. In most if not all cases, the financial institutions which issued the cards, and who were the ultimate victims of the fraud, reimbursed their clients for the personal losses occasioned by the defendant's misuse of their cards. In total, there were 33 individual victims in three Ontario jurisdictions (Toronto, Durham and York), all but one of whom is a woman. The total loss approaches $90,000, none of which has been repaid by the defendant.

3. Ms. [REDACTED]'s scheme involved fraudulently gaining entry into the individual victims' homes. Twenty-eight of the charges to which she has pled guilty relate to this offence, that of being in or entering a dwelling house with intent to commit an indictable offence therein, contrary to s. 349(1) of the Criminal Code. Offences relating to the theft, attempted theft or unlawful use of a credit card account for nine of [REDACTED]'s offences, and the frauds she committed (two of which exceeded $5,000.00) account for a further 21 offences. A single charge of possession of stolen property of a value under $5,000 completes the litany of substantive offences. In addition, [REDACTED] pled guilty to five charges of failing to comply with the terms of various undertakings and recognizances upon which she was released until her detention order of May 26, 2006. The violations of her bail conditions reflected a continuation of the same fraudulent conduct that underlie [REDACTED]'s substantive offences.

4. Ms. [REDACTED]'s frauds amount to insidious breaches of trust. Her victims are not only among the most vulnerable members of our community but were targeted because of their vulnerability. Her scheme was planned, sophisticated, and executed with guile and persistence. That said, [REDACTED] presents as a 40 year old first offender who has been in custody for these offences for over a year. In these circumstances, the central sentencing issues is what, if any, additional period of imprisonment is warranted. A secondary question pertains to the calculation of the credit to be assigned to [REDACTED] for the time she spent in jail pending the disposition of her charges. The answer to this question bears on the determination of the appropriate length of her sentence.

B. EVIDENCE

(a) The Offences

(i) The Fraudulent Conduct

5. The offences occurred between April 7, 2005 and May 26, 2006. [REDACTED] was employed as a clerk in the cancer clinic at Sunnybrook Hospital in Toronto throughout all but the last six or seven weeks of this 13 1/2 month period. Either directly or through the efforts of a co-worker, [REDACTED] secured access to the confidential health records of a large number of ambulatory patients. Defence counsel rightly agrees that [REDACTED]'s moral and legal culpability is the same whether she accessed these files herself or knowingly obtained this confidential information through another. In either event, she knew that her use of the information in these records for any purpose other than one authorized by her employer and directed to the welfare of the patients was a breach of the trust reposed in her by virtue of her position of employment.

6. Armed with information extracted from the confidential medical records, [REDACTED] typically would contact a hospital patient at her home, misrepresent herself as an employee of a community health care agency and arrange for a home visit to conduct a needs assessment or some other bogus exercise designed to gain entry to the patient's residence. Once through the door, she would conduct a mock interview of her victim and contrive some way to access the woman's purse or wallet from which she would then steal credit and debit cards and, on occasion, personal cheques or cash. She would sometimes replace the purloined bank cards with proxy cards that delayed discovery of her thefts. Her visits rarely lasted more than an hour, and many began with [REDACTED] - dressed in a hospital-like uniform - attending directly at her victim's door without benefit of the set-up phone call. [REDACTED] would sometimes extract her victim's PIN number

during her visit. On other occasions, her departure was followed by calls to her victim during which she claimed to be a bank employee requiring disclosure of the client's PIN. In still other cases, the compromised medical records provided sufficient information for [REDACTED] herself to figure out the likely PIN. [REDACTED] would utilize the bank cards to make retail purchases and to withdraw money from the cardholder's ATM within days - sometimes hours - of each theft.

7. There were variations to this pattern, but the following cases, drawn from a particularly intense period of fraudulent activity, afford prototypical illustrations of the 33 instances to which [REDACTED] has pled guilty:

• In early February 2006, [REDACTED] called Valerie Learmonth, an 84 old

woman, at her home. She identified herself as a health care worker who had

been referred by [REDACTED] family doctor to conduct a home care needs

assessment. [REDACTED] attended at [REDACTED] apartment a few days

later, identified herself as an employee of the Community Care Access Centres

(CCAC) and was permitted to wander through the apartment, stealing Ms.

[REDACTED] Royal Bank debit card in the process. Over the course of the next

week, [REDACTED] used the debit card to make retail purchases and ATM

withdrawals totalling $5,667.57.

• In early January 2006, [REDACTED] attended at the home of [REDACTED],

an 85 year old woman who lives alone. She identified herself as a CCAC

worker and was invited into [REDACTED]'s home on the pretext that she was

there to provide information about various services offered by the agency. Ms.

[REDACTED] then stole a Scotiabank debit card, a CIBC credit card and a number of

blank cheques from [REDACTED]'s purse while [REDACTED] used the

washroom. Over the next couple of weeks, [REDACTED] used the debit and

credit cards to make retail purchases and withdraw cash in the total amounts of

$3,902.84 and $2,747.12 respectively.

• In mid-February 2006, [REDACTED] called [REDACTED], again identifying

herself as a CCAC employee. Ms. [REDACTED], who was then 92 years of age, agreed

to meet the defendant at her apartment. During the course of an interview, Ms.

[REDACTED] persuaded Ms. [REDACTED] to divulge her PIN on the pretext that the agency

needed a PIN identification and it would be easier for Ms. [REDACTED] to remember

the same number as the one she employed for her bank card. Then, while

conducting a purported needs assessment of Ms. [REDACTED]'s apartment, Ms.

[REDACTED] stole Ms. [REDACTED]'s Royal Bank credit and debit cards from her purse.

The credit card was used for store purchases totalling $800 over the next week.

8. Sometimes [REDACTED] would steal cash and on at least one occasion she left an

apartment with the resident's purse. A few times her efforts were frustrated by wary victims, resulting in the several "attempt" charges to which she has pled guilty. In the cases of two women ([REDACTED], then 85, and Ms. [REDACTED] [REDACTED], then 82), [REDACTED] gained her victims' trust by misrepresenting herself as a bereavement counsellor in the immediate wake of each of these victim's husband's death, proffering grief counselling while she pilfered their bank cards. [REDACTED] always misidentified herself, completing her disguise with clipboards, official-looking documents and phoney business cards that referenced degrees and professional registrations she had never earned.

9. But for one woman who was 67 years old and six in their 70s, all of [REDACTED]'s

victims were at least 80 years of age. Four were in their 90s, including one woman who was 96 at the time she was victimized. Almost all of the complainants lived alone.

10. The stolen credit cards were used primarily in retail stores and restaurants. It is unknown to what purposes the money depleted from the victims' accounts through

ATM-withdrawals was applied, although it does not appear that [REDACTED] pursued an extravagant lifestyle. Some of her puchases were undoubtedly for non- essential items. However, a video recording of her home taken by the police during the course of their execution of a search warrant portrays a rather ordinary two-bedroom apartment; some of its contents may be ill-gotten, but they are not, I find, luxurious.

11. In total, the loss occasioned by [REDACTED]'s fraudulent conduct amounted to

very close to $90,000. This, on average, works out to almost $3,000 a victim - a

significant financial insult to elderly women who, it appears, generally live very

modest existences. None of this stolen money was ever repaid by [REDACTED].

(ii) The Breaches of Bail

12. Ms. [REDACTED] was arrested and charged with various offences on March 2, 2005.

She was released on her own undertaking the same day, with a condition prohibiting her from possessing any credit or debit cards not in her own name. These March 2005 charges were subsequently dismissed at a trial in another court and form no part of the current prosecution. However, her breach of this bail condition led to [REDACTED] being charged in Durham Region with failure to comply with her undertaking on her arrest there on February 2, 2006, and again in Toronto on April 4, 2006 when she was arrested on the Toronto charges currently before this court. [REDACTED]'s subsequent release was by way of a recognizance with various conditions, including one prohibiting her from possessing any banking instruments not in her own name, another forbidding her from having contact with persons over 60 years of age, and a third restricting her attendance at

banking institutions to a few specific locations. [REDACTED] was re-arrested in Toronto on May 26, 2006. Her fraudulent conduct in the days preceding this latter arrest (involving the theft and misuse of the aforementioned Ms. [REDACTED]'s debit card, including immediately after a remand appearance in this court on May 25th) constitute violations of all three of these conditions. In the result, [REDACTED] has pled guilty to three counts of failure to comply with her recognizance.

13. Ms. [REDACTED] was ordered detained following her arrest on May 26, 2006. She has been in custody awaiting disposition of the many charges she faces since that date - a total (including earlier interim periods of custody) of 416 days or approximately 13 1/2 months.

(b) The Offender

14. Ms. [REDACTED] has no prior criminal convictions. She is now 40 years of age. She was raised in a working class neighbourhood in Jamaica. Her formative years were not happy ones. Her parents frequently argued, finally separating when she was 14. Her mother, who was unemployed, soon abandoned the family home, leaving Ms. [REDACTED] to fend for herself and her younger brother. Survival led to an exploitive relationship with a 36-year old neighbour who physically, sexually and emotionally abused [REDACTED] over the next four years. [REDACTED]'s father re-appeared in 1984, finally rescuing her from this abusive relationship. Some family stability followed, with [REDACTED] and her parents living under the same roof, although her father was then cohabiting with another woman.

15. Ms. [REDACTED] completed an educational program in commerce in Jamaica. She had

a daughter, Fallon, in mid-1989 and emigrated to Canada in 1990, when she was 23. She is now a Canadian citizen. Her daughter joined her in Canada in 1995. Fallon lived with and was supported by the defendant until the latter's arrest in May 2006. [REDACTED]'s parents reconciled in 1996, the same year her mother emigrated to Canada. [REDACTED]'s father joined his wife here in 1998.

16. Ms. [REDACTED] married a Canadian man 15 years her senior, [REDACTED] [REDACTED], in December 1991. He adopted [REDACTED]'s daughter and they later had a son, now 9 years old, in mid-1998. They separated four years later, in mid-2002. [REDACTED] and her husband were both fully employed during their marriage, but their financial relationship proved very stressful for the defendant. But for half of the monthly rent or mortgage payments, all of the household and family expenses, including those of the children, were borne by [REDACTED]. She had taken courses related to medical office management at Toronto community colleges, and worked regularly, usually in clerical positions in hospital environments and often at more than one job, for the 15 years between her arrival in Canada and April 2006 when her arrest led to termination of her employment. Nonetheless, [REDACTED] was financially stretched at the time the offences occurred.

17. This pressure was undoubtedly aggravated by [REDACTED] voluntarily assuming

burdensome financial responsibilities beyond her immediate household. These obligations included the support of her parents and a niece in the custody of her parents. The maintenance of two households far exceeded her lawful income and served to rationalize her fraudulent conduct.

18. Some insight into [REDACTED]'s situation can be garnered from a thorough psychological assessment conducted by [REDACTED] [REDACTED], an experienced forensic psychologist who, for some years, was the chief psychologist at the Vanier Centre for women, the remand facility at which [REDACTED] has been detained while awaiting the disposition of these charges.

19. Ms. [REDACTED], notes [REDACTED]'s report, "accepts full responsibility" for her criminal behaviour and retrospectively acknowledges the devastation it caused her victims. Although characteristically anxious and distrustful, she does not have a major mental illness, nor does she suffer from an antisocial personality disorder. Nor, indeed, does she have any addictions or alcohol abuse issues. The explanation, such as it is, for her fraudulent conduct lies in the unresolved dynamic of her relationship with her parents, a product of the abandonment and consequent trauma she experienced as a youth and the fear of fresh abandonment that fed her need to provide for her parents in Canada despite her continuing resentment of them. As clinically summarized by Dr. [REDACTED]:

Throughout the years, [REDACTED]'s feelings towards her parents have

been riddled with ambiguity and conflicting emotions. On one hand,

she feels disappointed, resentful and angry that they abandoned her,

feelings that seemed to be intensified when they reconciled ... Yet, on

the other hand, she feels responsible for their well-being and obligated

to provide for them.

...

Psychological testing revealed that [REDACTED] presents with several

symptoms characteristic of individuals who have experienced a

traumatic event. For the defendant, this trauma is likely her childhood

history of abandonment and abuse.

...

It is not uncommon for individuals who experience trauma-related

symptoms to have difficulty with interpersonal attachment, which can

impact their ability to develop stable, healthy relationships and can lead

to distorted perceptions of interpersonal relationships. One example of

this can be the ambiguity between abuse and positive experiences

within a relationship. For the defendant, it seems that, given her

persistent fears of abandonment, she did not want to lose the connection

she had re-established with her parents, which allayed fears of

desertion. To maintain this relationship, she needed to repress her

negative emotions towards them, experience financial hardship and

become involved in illegal activities to deal with her financial

problems. Essentially, to maintain her role in an interpersonal

relationship, she committed herself to ongoing negative experiences.

With respect to skill development, [REDACTED]'s profile on the testing

indicated that she lacks relational problem-solving skills. ... This is

seen in the defendant's inability to address the issues related to her past

(i.e. relationship with her parents, fears of abandonment, history of

neglect and prolonged abuse) in an adaptive, rational manner. Ms.

[REDACTED]'s actions were therefore likely driven by her intense fears of

being abandoned again, rather than by problem-solving, which is

another problem commonly seen in individuals who are experiencing

chronic post-traumatic symptoms. That is, their ability to regulate their

affect is limited and, during periods of intense emotion, their ability to

make rational decision and use good judgement is negatively impacted.

...

... [B]ased on the results of this assessment, Ms. [REDACTED]'s behaviour is

not the result of a propensity toward antisocial activity. ... [H]er actions

can be best understood in the context of her history, her experience of

complex traumatic symptoms and her poor coping skills and not the

result of any deviant predisposition.

20. While the contextual analysis developed by [REDACTED] undoubtedly provides an

element of understanding, the nexus between [REDACTED]'s youthful trauma and her calculated decision to embark on a career as a fraudswoman after 15 years of productive and law-abiding life in Canada remains, at best, cloudy and indirect. Nor is there any identification of the triggers or precipitating events - other than all-too-common financial pressures and related coping difficulties - that explain the timing of [REDACTED]'s decline into criminal conduct. Nor is there any cogent evidence, or even a theory, advanced for her persistence in perpetrating these offences in the teeth of repeated court orders intended to eliminate such opportunity.

21. Given her remorse, verbal skills, ability to acquire learned strategies, expressedtherapeutic willingness and the absence of anti-social personality characteristics, Dr. [REDACTED] concludes that [REDACTED] would benefit from treatment and counselling programs. Some of his comments in this regard follow:

... [REDACTED]'s profile indicates that should she choose, she would be a motivated candidate for psychotherapy. Her motivation for intervention is consistent with other individuals seen in a treatment setting and indicates that she does acknowledge areas of clinical need and has a positive orientation toward personal change. ... [S]he has characteristics that would bode well with treatment initiatives.

...

Given her intellectual capacity, with appropriate intervention, there should be no significant barrier for her acquire more adaptive problemsolving, coping and social skills, which are positive prognostic factors.

(c) Impact on the Victims

22. Victim impact statements were filed on behalf of eleven of the thirty-three individual complainants. All are poignant, some heart-breakingly so. I can only assume that the anguish, confusion, distrust, insecurity, financial embarrassment, personal distress, diminishment of quality of life and grave insult to selfconfidence, dignity and independence visited on these eleven women by Ms. [REDACTED]'s criminal conduct is representative of that experienced by the entire population of elderly citizens she victimized.

23. While no selection can do justice to the range of prejudice suffered by the 33 victims, the following cases are illustrative:

• Ms. [REDACTED] [REDACTED] was referred to earlier in these reasons. She writes:

Although I am 93 years old, at the time of the crime I was living on my own in an apartment enjoying an independent lifestyle. I did my own banking and shopping with some help from family and friends. As a result of the accused ... having gained access to my home under false pretences and the subsequent forging of my signature on a cheque, stealing my bank card, the use of a credit card, and the continual harassment from day to day by telephone to attempt to acquire my bank personal identification number, I became quite paranoid. I stopped answering the phone directly, refused any assistance from CCAC, and was generally very suspicious of all strangers. I literally did not trust anyone other than my family and close friends. I was unable to sleep at night or attend to any financial matters. I was robbed of my well-being and independence - something that I enjoyed all my life. I decided that the only solution would be for me to move into a senior's residence, have an unlisted telephone number, and place all my financial affairs with my family. As a result of moving to a senior's residence earlier than anticipated,

my monthly costs went up substantially.

• Ms. [REDACTED] [REDACTED] lives in Markham. She was 81 at the time of the offence.

She lost approximately $4,800. Like many other victims, the crime led her to blame herself and doubt her own capacities. Like several others, her experience caused her to distrust her bank and the medical facility on which she depended:

My strongest memory was of receiving the dreadful news from a teller at my bank branch that my accounts had been emptied of all my savings. I had to sit down, I was so shocked. I couldn't really take it in. The bank staff had to help me that day. It was an awful lot of money for me to lose as a senior. It got worse. ... [The bank] more or less stated that I, or someone very near me, must have participated in the crime. I was a suspect, as were

my son and daughter and other family members. It was horrible for me to go into my bank branch worried that they thought I was a liar and a cheat, or someone near to me was. I must say my faith in my bank was shaken by their treatment of me. In the meantime, my whole behaviour changed. I had to get by on what was left of my savings, spend barely anything .... I became incredibly cautious. ... I am still afraid to use my banking card. I felt so bad about the whole thing; guilty for losing track of my card,

suspicious of staff at all the store where I thought it might have been taken ... I was very ashamed of any part I might have played in this, though I couldn't remember doing anything. I was and still am too ashamed to share this with many of my family or friends.

It was great shock to learn there was a connection to Sunnybrook Cancer Centre [[REDACTED]'s employer]. My visits there had always been an ordeal but now I go with the extra burden of suspicions of the staff. Before every appointment, I empty my purse of everything but my health cards and leave it outside with my daughter to safeguard when I go in for tests. I ... have become really careful of my credentials and who enters my

apartment, paranoid even. I don't enjoy feeling this way, but can't shake the feeling of insecurity. I would say this episode has made me feel really old. It has made me doubt my competence, my abilities in general and my ability to run my affairs n particular, my memory, my people judgment.

• Ms. [REDACTED] [REDACTED] was defrauded of approximately $2,700 as a result of Ms.

[REDACTED]'s theft of her bank cards. She was 80 at the time. Portions of her

statement follow:

The loss of funds from my bank account through the ATM fraud required me to ... battle with my bank. They refused to reimburse me. We had to go through lengthy appeals! During this time I suffered anguish and frustration. I live on modest income and the large sum of money caused a great deal of emotional wear and tear - I am well in my

80's! I live now with a small fear of being robbed. It has changed how I carry my purse and how I shop. You can imagine that the stress on a woman my age did affect my

general well being for about 4 months after the crime.

24. As can be readily imagined, the impact of [REDACTED]'s crimes on the two women who were grieving their husband's loss at the time they were victimized was particularly devastating. In addition to these individual impact statements, one tendered by the CCAC of York Region expressed regret that its name was abused by [REDACTED] to commit her frauds. The agency notes that elderly persons living alone often require visits from persons affiliated with CCAC to tend to their medical needs. As such, they are a vulnerable and fragile population. As echoed in several of the individual victim impact statements, the agency further notes that "By using CCACs to perpetrate this crime, trust in CCACs has been undermined".

C. ANALYSIS

(a) Introduction

25. It is long-settled that a breach of trust is treated as an aggravating factor on sentencing. This approach is now codified in s. 718.2(a)(iii) of the Criminal Code. The continued perpetration of the offences in the face of repeated bail orders is another significant aggravating factor, bearing on both the fraud-related offences and determination of the appropriate sentence for the various fail to comply offences to which [REDACTED] has pled guilty. On the other hand, [REDACTED] has no prior convictions and has spent some 13 1/2 months in custody pending the disposition of her charges. Given these circumstances - and a number of other factors which I will soon address - defence counsel takes the position that an appropriate global disposition is one of two years in custody, a sentence that, it is said, [REDACTED] has already effectively served when consideration is given to her pre-sentence detention at the conventional credit ratio of two-for-one. Accordingly, it is proposed that [REDACTED] be sentenced to a nominal day in jail followed by a period of probation and a free-standing restitution order for the full

amount of the losses her crimes occasioned. Crown counsel agrees that a restitution order is mandated, but is of the view that the appropriate global disposition should be a period of six or seven years incarceration, less [REDACTED]'s pre-sentence custody calculated pursuant to reduced-credit formula. The Crown's position, if given effect through my sentence, would eliminate any prospect of community supervision through probation.

(b) The Governing Law

26. Sentencing is an individualized process. Its exercise turns on consideration of the

circumstances of both the offence and offender. While comparator cases and precedents must always be borne in mind, in the end no two cases are exactly alike. Every sentence depends on factors - both aggravating and mitigating - peculiar to its own factual scenario.

27. That said, there are certain sentencing principles and objectives that are of general

application. These objectives, as now set out in s. 718 of the Code, include the denunciation of unlawful conduct, specific and general deterrence, reparation and

rehabilitation. These are all subject to the fundamental principle that, as prescribed in s. 718.1, "A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender".

28. General deterrence - the dissuasion of like-minded others from committing similar

offences - is long-recognized as a primary purpose of sentencing in cases, such as Ms. [REDACTED]'s, involving substantial abuse of a position of trust for personal gain. Indeed, absent exceptional circumstances concerns for general deterrence dictate that offences involving such breaches of trust attract custodial dispositions. As said by the Court of Appeal in the seminal case of R. v. McEachern, [1978] O.J. No. 987:

In our opinion the gravity of the offences called for the imposition of a custodial term, and there were no exceptional circumstances that would justify a lesser punishment. The trial judge placed too much emphasis on restitution, and on community service work as an alternative to imprisonment, and did not attach sufficient importance to general deterrence. The public interest requires that it be made very clear to one and all that in the absence of exceptional circumstances a person holding a position of trust who steals from his employer must expect a term of imprisonment.

The Court of Appeal has reaffirmed the propriety of custodial dispositions for serious breach-of-trust offences - whether or not the complainant is the offender's employer - in many subsequent decisions. (See, e.g., R. Holub, [2002] O.J. No. 579, R. v. Dobis, [2002] O.J. No. 646 and R. v. Bogart, [2002] O.J. No. 3039.). Given the many aggravating factors, defence counsel here fairly concedes that no exceptional circumstances warrant a departure from the general rule in [REDACTED]'s case.

29. The potential severity of the penalty that might otherwise be imposed on Ms. [REDACTED] is somewhat alleviated by certain other sentencing considerations which, together, may be seen as principles of restraint. These include the principle of parity (that like offenders be treated similarly for like offences), the principle of totality (which, in s. 718.2(c) of the Code, dictates that a "combined sentence should not be unduly long or harsh"), and a recognition that imprisonment should be the penal sanction of last resort - and, by extension, that imprisonment, when imposed, should be no longer than is minimally necessary to achieve the legitimate sentencing objectives in the individual case. This latter proposition is particularly relevant in the case, as here, of first offenders. As said by the Court of Appeal in R. v. Hayman (1999), 135 C.C.C. (3d) 338 at 346 (Ont. C.A.), "A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence." (See, also, R. v. Gladue (1999), 133 C.C.C. (3d) 385, at paras. 39 and 53-55 (S.C.C.); R. v. Priest (1996), 110 C.C.C. (3d) 289 at 294-6 (Ont. C.A.); and R. v. Vandale and Maciejewski (1974), 21 C.C.C. (2d) 250 at 251-2 (Ont. CA).

(c) Applying the Law

(i) Introduction

30. Counsels' industry has provided me with a collection of broadly comparable precedents from Ontario and several other provinces. By "broadly comparable" I mean cases involving multiple and substantial breach-of-trust thefts and frauds perpetrated on non-institutional victims by first offenders who fail to make restitution. Including pre-sentence custody, the sentences imposed in these cases range from six months to seven years imprisonment. Apart from the several authorities already noted, these cases (some of which do not include every one of these salient factors) include the following:

R. v. Sherer (1984), 16 C.C.C. (3d) 30 (Ont. C.A.)

R. v. Bryan (1989), 9 W.C.B. (2d) 350 (Ont. Dist. Ct.)

R. v. Jaffey, [1995] O.J. No. 1052 (O.C.J.(G.D.))

R. v. Lawson (1995), 56 B.C.A.C. 161 (C.A.)

R. v. Hoy (1998), 113 C.C.A.C. 155 (C.A.)

R. v. Holden, [2000] O.J. No. 3481 (C.A.)

R. v. Hadjor (2000), 47 W.C.B. (2d) 214 (Ont. Sup. C.J.)

R. v. Lebel, [2003] O.J. No. 4725 (Sup. C.J.)

R. v. [REDACTED], [2003] O.J. No. 4997 (C.J.)

R. v. Montpellier, [2004] O.J. No. 2046 (Sup. C.J.)

R. v. Collins, [2005] O.J. No. 2823 (C.J.)

R. v. Lam, [2005] BCJ No. 889 (C.A.)

R. v. Galna, [2005] O.J. No. 3049 (Sup. C.J.)

R. v. Crackower, unrepd., July 6, 2006, Ont. C.J.

R. v. Wheeler, [2007] M.J. 98 (P.C.)

R. v. Gooden, unrepd., April 5, 2007, Ont. Sup. C.J.

R. v. Coffey, 2007 BCPC 151

31. The cases at the margins of this sentencing range tend to be characterized, at the low end, by the exceptional or at least highly sympathetic circumstances of the defendant and, at the other extreme, by especially aggravating factors (including the quantum of the fraud, its duration, the nature of and impact on the victims, the absence of remorse and the criminal antecedents of the offender). While none of the cases that have been brought to my attention are on all fours with [REDACTED]'s scheme, those closest to the totality of circumstances presented here generally attract a global sentence of between two-and-a-half and five years incarceration. That said, it is difficult to discern a common tariff. Each case, in the end, must turn on its own facts.

(ii) Aggravating and Mitigating Factors

32. The facts related to [REDACTED]'s fraud-related scheme translate into a number of

what I find to be aggravating and mitigating factors that inform her sentence for these offences. I begin with the aggravating factors:

• Ms. [REDACTED]'s crimes could not have been committed had she not breached the trust of her employer and, thereby, the relationship of trust that existed between that employer, Sunnybrook Hospital, and its patients - the personal victims of the fraudulent conduct.

• Perpetration of the frauds involved repeated incursions of two of the most assiduously protected zones of privacy: the victims' medical records and their homes. Both zones were callously and consciously trespassed upon. [REDACTED]'s crimes were far more invasive than the mere compromise of credit cards and banking information. The value of personal dignity that is ultimately protected by privacy considerations was sorely violated.

• As detailed earlier, [REDACTED]'s victims were of a particularly vulnerable lass. They were elderly, typically lived alone, and were dependent on the health-related agencies and services she pretended to represent. Many, if not most, lived on fixed or very modest incomes, and [REDACTED]'s predations undoubtedly caused them financial embarrassment. However, and unlike some other cases that have been

pressed upon me, [REDACTED]'s fraudulent conduct did not render her victims destitute. The primary impact, it appears, was more psychological or emotional. Their trust and natural generosity was undermined. Their quality of life was reduced. Their confidence in those institutions upon which they necessarily rely was subverted. And their self-worth and independence - two cherished values - were compromised.

• The fraudulent conduct was persistent. It involved 33 different victims and continued unabated for almost 14 months. It ended not because of any voluntary cessation by Ms. [REDACTED] but only after she was repeatedly arrested and, finally, detained for her accumulating offences.

• The offensive conduct continued while on bail and in the face of repeated orders intended to protect further potential victims. [REDACTED]'s response to her bail conditions was one of persistent defiance.

• Ms. [REDACTED]'s frauds were carefully planned executed, and designed to defeat detection.

• An appreciable amount of money was obtained as a result of the frauds. While well below the range of defalcation in most of those cases where the severest sentences have been imposed (generally, several hundred thousand to several million dollars), $90,000 reflects a very significant exercise in predatory self-enrichment.

• None of the money defrauded by [REDACTED] was ever repaid nor, unlike in a number of other cases, does it appear that [REDACTED] ever had such intention prior to her eventual detention.

33. The mitigating factors in this case primarily relate to the offender. They include the following:

• [REDACTED] appears before this court as a first offender. She is also a person of previously good character: she was employed and was otherwise a pro-social member of Canadian society for the 15 years between her immigration to Canada and her participation in these offences. This speaks to the prospect of rehabilitation and, as well, to the limits of specific or individual deterrence.

• [REDACTED] pled guilty to all of the charges on which she was arraigned. This demonstrates her acceptance of responsibility for these offences. It also reflects her remorse, as does her sincere and heartfelt apology to her victims prior to sentencing. Her plea means, as well, that dozens of victims, many of whom are undoubtedly frail or in ill-health, were relieved from having to attend at court and endure the anxiety of testifying. It further means that the criminal justice system was spared the time and resources that would otherwise have been required to litigate the prosecution of a total of 64 counts in three different jurisdictions.

• [REDACTED] suffered a traumatic adolescence that left her emotionally scarred and ill-prepared to respond to the pressures she faced following the separation from her husband and her assumption of her parents' financial responsibilities.

• [REDACTED] has two children. She, to some degree, may have overcompensated for her own negative childhood experiences in providing for her son and daughter, but there is no reason to doubt her devotion to them. It appears reasonable, as well, to infer that [REDACTED]'s children have been adversely affected by her absence.

There is a value in preserving functioning families.

• Although of minimal mitigative effect, it is worth noting that all of the individual victims were compensated by the financial institutions that ultimately bore the losses occasioned by [REDACTED]'s frauds. Further, it appears from Dr. [REDACTED]'s psychological assessment that [REDACTED] contemplated this eventuality when she embarked on her scheme.

34. Counsel devoted considerable attention to [REDACTED]'s criminal motivation and its impact, if any, on the calculus of aggravating and mitigating factors that inform her sentence. A somewhat analogous situation presented itself in the very recent case of R. v. Coffey, 2007 BCPC 151. The defendant in that case was an accountant. She breached her fiduciary trust with clients and members of her family to steal approximately three million dollars over an eight year period. Although otherwise an upstanding citizen, Ms. Coffey suffered from profound feelings of rejection and sought to win acceptance of others through the largesse she was able to exhibit through her ill-gotten gains. In the course of sentencing Ms. Coffey, Kitchen J. made the following trenchant observations on the subject of motivation (at para. 26):

There is usually a personal problem that overwhelms a person to the point where they make the critical decision to begin stealing money that has been entrusted to them. Sometimes the personal problem is an addiction, such as gambling, either at games or on the stock market, which has depleted all of the perpetrator's assets. Sometimes the addiction is an increasing drug habit that has done the same. Or the problem may involve personal finances that have suffered as a result of a myriad of other problems such as marital, emotional, or psychological problems, to name a few. Whatever the problem, after the first theft has been committed some unrealistic rationalization is often used to justify the thefts that follow. But that was not the situation here. There was no apparent personal problem that led to the first theft, nor the process of rationalization that kept it happening.

35. Despite [REDACTED]'s helpful insights, I do not find that [REDACTED]'s problems -

emotional, psychological or financial - were of such crisis proportions to constitute a legally cognizable excuse for her errant behaviour. Her parental conflicts may have been - and likely remain - unresolved, and she may lack the ability or skill-set to approach these and other problems in a strategically effective manner, but none of this mitigates the gravity of her fraudulent conduct. And none of it explains why she perpetuated her scheme in the face of repeated prohibitory bails, a matter regrettably left unaddressed in [REDACTED]'s report. People steal for all manner of reasons, but an unfortunate - indeed, as here, even traumatic - upbringing cannot redeem the deliberate pursuit of a persistent pattern of criminal conduct. Whatever [REDACTED]'s ultimate intention or use of the monies she stole, I find she was motivated by personal gain. Her early circumstances inspire sympathy, but they have no mitigative value.

36. The nature and quantity of these offences and, in particular, the vulnerability of the persons upon whom they were perpetrated render deterrence and denunciation dominant sentencing objectives in this case. The rationale for denunciation is self-evident. Deterrence, both individual and general, warrant some further comment respecting their application to the circumstances of this particular case.

37. In a number of the precedential cases I have reviewed, specific deterrence is expressly disregarded as a sentencing objective on the basis that there is no realistic chance of recidivism. I do not have that confidence here. Ms. [REDACTED]'s repetition of the offences in defiance of her bail conditions only enhances my concern of the need for individual deterrence. It is clear to me that court orders in and of themselves are of little value in protecting society from [REDACTED]. The prospect of further incarceration for embarking on a similar course of conduct may, however, have the desired effect of inhibiting such election.

38. Further, the nature of the offences naturally lends itself to sanctions imposed to meet the sentencing goals of both specific and general deterrence. Offences such as these are the product of applied reason. They are not crimes of passion. As in this case, they often cannot be rooted in dependencies, uncontrollable obsessions or historical enmities. They are, rather, the product of weighed and rational choices. The risk of an even more severe sentence for any subsequent offence of the same genus will form part of the calculus of risk should Ms. [REDACTED]'s mind turn to consideration of any similar misconduct. [REDACTED] strikes me as a woman of considerable native intelligence. That gift has been abhorrently misapplied. But she can well appreciate - if only by the severity of her sentence - that any recurrence of her predations will inevitably attract an even lengthier period of incarceration. In theory, and here in practice, that knowledge, gleaned from this sentence, should deter her specifically from any serious contemplation of recidivist conduct.

39. The sentence I shall impose is similarly intended to deter others from pursuing similar schemes. One acknowledged problem with the theory of general deterrence is that many of those most in need of the court's lesson are unlikely to get the message. This critique loses considerable force in the case, as here, of crimes of reason - crimes of calculation and deliberation motivated by little more than the desire for self-gratification. In these cases it is essential that those tempted to deviate from the law appreciate with certainty that their crimes will be appropriately sanctioned if they assume the penal risk of their misconduct. While the sentence imposed in any individual case may escape the attention of those contemplating criminal conduct, the repeated and, most importantly, consistent

message of penal consequence will, over time, find its place in the matrix of risk assessment that goes into such criminality. The importance of general deterrence is particularly acute in circumstances of trust. Those in whom trust is reposed must understand that any criminal breach of this confidence will be strongly penalized. This knowledge - attained through consistent sentencing and, ideally, public education of such sanctions - will help to stay the hand of that admittedly small proportion of the public who are otherwise tempted to use their positions of trust for personal advantage.

40. Reform and rehabilitation are also part of the matrix of relevant sentencing objectives, particularly where, as here, the defendant is a first offender. As [REDACTED] has concluded, [REDACTED] has the skills, the intelligence, the capacity for insight and the motivation to profit from therapeutic intervention. She has pled guilty, accepted responsibility and expressed remorse. These are all positive indicators of her potential for reform. Ultimately, protection of society in the long term is best secured by facilitating a process of rehabilitation for which [REDACTED] is both fit and amenable. As said by the Court of Appeal in R. v. Scherer (1984), 16 C.C.C. (3d) 30 at 35, "even in cases such as this, where general deterrence and denunciation are the paramount factors to be considered, rehabilitation, in the broad sense of looking to the offender's re-entry into the

community at some future time as a productive member, cannot be wholly ignored."

(c) The Breaches of Bail

41. In the absence of just cause, bail is a constitutionally protected right. It is also a right that was abused by [REDACTED]. I have already addressed what I view as [REDACTED]'s considered and repeated defiance of the bail conditions imposed on her. I do not intend to further repeat those comments. I add only that, in my view, [REDACTED]'s failures to comply with her undertakings and recognizances are offences against the administration of justice and, thus, legally distinct from the gravaman of those offences that catalogue her fraudulent conduct. While the sanction imposed for these breaches is subject to totality considerations, they must be dealt with by way of consecutive rather than concurrent sentences.

(d) Calculating Credit for Pre-Sentence Custody

42. Credit is ordinarily granted to a defendant for any period of custody she serves while awaiting trial. The credit advanced is usually of an enhanced order, typically calculated on a two-for-one basis. The legal underpinnings for this enhancement were recently and succinctly set out by the Court of Appeal in R. v. Davis, 2007 ONCA 385, at para. 1: "The three reasons for granting such a credit are the usually crowded jail conditions pending trial, the lack of rehabilitative programs and the impact on the offender's parole eligibility". It is here accepted that [REDACTED]'s jail conditions were, as is typically the case, overly congested and that she receives no statutory parole credit (called "earned remission") for her pre-sentence custody. Further, although she commendably took advantage of the few hours of "life skills" programs offered her during her 13 ½ months of detention, these in no way compare to the range or intensity of the rehabilitative

programs available in a prison or reformatory setting.

43. The two-for-one convention is exactly that. It is not a rule of law, there is no mechanical formula, and sentencing judges retain a discretion in appropriate cases to modify the conventional ratio. (See R. v. Wust (2000), 143 CCC (3d) 129 (S.C.C.) and R. v. Rezaie (1996), 112 CCC (3d) 97 (Ont. C.A.)). In some cases, where for example remand custody has proved particularly harsh or overcrowding exceeds humane parameters, courts have amplified the credit. In other cases, such as those where the offender has little prospect of early parole or has not had to endure prison congestion (for example, in the just-noted case of Davis) or where an offender has deliberately delayed the disposition of his charges to garner the sentencing benefit of pre-trial custody (as in R. v. Thonton, 2007 ONCA 366, at paras. 31-33) a reduced credit ratio or, in rare cases, no credit at, all may result.

44. As noted earlier, Crown and defence counsel take divergent views as to how I should treat [REDACTED]'s pre-trial custody. Her counsel urges adherence to the conventional rule. Crown counsel proposes that I depart from it, substantially reducing the conventional ratio in light of the fact that the vast bulk of [REDACTED]'s pre-trial detention is self-manufactured in the sense that is solely a function of her failure to comply with the reasonable conditions imposed by her various bails. In short, the Crown's position is that [REDACTED] brought her pretrial detention on herself and she ought not to be able to profit from her own miscreant behaviour.

45. With respect, I do not share the Crown counsel's perspective on this issue. I say this for four reasons. First, the Crown's position, if tenable, would logically apply to every offender whose criminal record or failure to comply with his or her bail conditions resulted in pre-trial detention as each of them could be said to be responsible for their remand custody. I do not believe the exception to the conventional approach to pre-sentence custody to have stretched this far. Second, even accepting, as I do, that the criminality involved in the fail to comply charges is qualitatively distinct from that which underlies the fraud-related offences, there remains sufficient commonality of conduct that to deny [REDACTED] conventional credit consideration for her pre-disposition custody would, in effect, cause her to be sentenced, at least in part, three times for the same offensive behaviour. Third, as a naïve prisoner Ms. [REDACTED]'s subjective experience of her 13 1/2 months of presentence custody is almost certainly more punitive than would be the case with a veteran offender. Finally, [REDACTED], as a first offender convicted of nonviolent offences, would in the ordinary course be eligible for full parole on completing one-third of a court-imposed sentence. For all of these reasons I intend to apply the conventional ratio of two-for-one in considering [REDACTED] pre-sentence custody.

(e) Sentence

46. Ms. [REDACTED]'s crimes are reprehensible. A sentence of effectively "time served"

would not meet the ends of justice. Having duly considered the various principles of sentencing that obtain in this case and the aggravating and mitigating factors that inform their application, and taking into account the principle of totality, I have determined that the appropriate global sentence for the 59 fraud-related offences committed by [REDACTED] is 38 months. I appreciate that this is close to the low end of the scale for these offences, but I am of the view that [REDACTED]'s status as a first offender entitles her to a measure of leniency, as do her plea of guilty, her family circumstances and her prospects for rehabilitation. Any significantly longer sentence would be unnecessarily crushing and could, when combined with the breach of bail sentences I am about to impose, interfere with the term of community supervision I believe is required for both the protection of

society and [REDACTED]'s successful re-integration into it. This 38 month sentence is reduced by [REDACTED]'s pre-disposition custody of 13 1/2 months, credited on a two-for one basis, so that the total resulting sentence of imprisonment for these 59 offences is eleven months. To be clear, [REDACTED] is sentenced to eleven months concurrent for each of offences upon which she was arraigned but for the five fail to comply charges. Further, seven days of presentence custody are to be noted on the Information with respect to each of these 59 offences.

47. In addition, [REDACTED] is sentenced to two years probation, concurrent, on each of these 59 counts. The terms of her probation are to report forthwith upon her release to a probation officer and thereafter as directed. She is to reside at an address approved of by her probation officer. She is to promptly advise her probation officer of any employment she may secure and of any changes in that employment. She is not to possess any credit cards, debit cards, cheques or any other financial instruments or any identification documents, but for those of her two children, in any name but her own. She is not to attend at any bank or other financial institution other than that or those at which she has an active account. She is not to maintain more than two active bank accounts. She is not to attend at the home of any person over the age of 60 unless that person is a member of her immediate family. She is to attend for such counselling programs as her probation

officer may direct in consultation with [REDACTED] E. [REDACTED], and to sign such waivers or releases as may be necessary to permit her probation officer to monitor her attendance and progress in these programs.

48. I note that the Crown proceeded by way of indictment with respect to Ms. [REDACTED]'s charges of failing to comply with the terms of her various pre-trial releases. For the reasons I have canvassed earlier, [REDACTED] is sentenced to one month imprisonment for each of the two offences of failing to comply with an undertaking. These sentences are concurrent to each other but consecutive to the eleven month concurrent sentences imposed for the 59 fraud-related counts. In view of the fact that she, by then, had already been charged with violating bail conditions, [REDACTED] is sentenced to a further three months imprisonment for each of the three offences of failing to comply with a recognizance. Each of these three-month sentences is concurrent to the others but consecutive to both the eleven month sentences and the consecutive one month sentences I have just imposed. In addition, [REDACTED] is sentenced to probation for two years with

respect to each of these five counts of failing to comply, concurrent with each other and with the probation I have imposed on the other 59 counts to which she has pled guilty. The terms of these probation orders are identical to those imposed earlier.

49. Finally, I make free standing restitution orders for the full amount of the losses occasioned by [REDACTED]'s offences, as detailed in the schedule of "losses" entered as Exhibit 23.

D. CONCLUSION

50. The global sentence imposed on [REDACTED] is one of 39 months. The first 15 months of this sentence is a term of imprisonment composed of 59 concurrent sentences of 11 months for her fraud-related activity followed by two consecutive sentences of one month concurrent and three further consecutive sentences of three months, concurrent to each other, for her five offences against the administration of justice. The last 24 months of [REDACTED]'s sentence is by way of 64 concurrent probation orders. Free-standing restitution orders in the total amount of $86, 364.68 complete this disposition.

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