R. v. Dube, 2011 ABQB 410

Court of Queen ’ s Bench of Alberta Citation: R. v. Dube, 2011 ABQB 410 Date: 20110630 Docket: 080465297Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Gilles Dube, Jaimee Jie Tong Yu, Jean Pierre Bellefeuille Accuseds _______________________________________________________ Reasons for Sentencing Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ [ 1 ] After a trial lasting over three weeks I convicted Mr. Pierre Bellefeuille, posing as Dr. Ben Gagnon, of defrauding Dr. vanRooyen contrary to s.380 (1) (

a) of the Criminal Code of Canada. My Reasons for Judgement are set out at 2011 ABQB 299 . [ 2 ] In sum, I found that Mr. Bellefeuille knowingly, deceitfully, and dishonestly misrepresented himself (as Dr. Gagnon when he was in fact Mr. Pierre Bellefeuille), his education (a medical degree and MBA when he had neither), his qualifications (as a specialist in dermatology and experienced businessman in building medical clinics) and state of affairs of certain medical clinics to Dr. vanRooyen in order for him to invest $500,000 into a company that purportedly owned (but in fact did not own) these clinics.

[ 3 ] After hearing submissions and further information, the following are my reasons for the sentence I impose on Mr. Bellefeuille. I shall firstly discuss the new information that was entered at the sentencing hearing, discuss the Crown and Defence positions, analyse the relevant law to a sentence involving a fraud of this nature, and finally impose Mr. Bellefeuille’s sentence. Further sentencing information [ 4 ] The following further information was put before me, by consent, for my consideration in setting the appropriate sentence in this case: - Mr.

Bellefeuille’s criminal record - victim impact statements submitted by Dr. vanRooyen and Mr. Mummery - letters in support of Mr. Bellefeuille by members of the community - a handwritten statement from Mr. Bellefeuille The criminal record [ 5 ] Mr. Bellefeuille has an extensive and serious related criminal record. [ 6 ] Starting in July 1986 he was sentenced in Longueuil, Quebec to two penitentiary sentences, one for 33 months for theft, false pretences and misrepresenting himself (2 counts) and one for 2 years and 9 months for theft over $1000, 18 counts of fraud and 6 counts of use of a counterfeit document.

The next month, August 1986 he was sentenced to 6 months and 1 month for two more counts of fraud in Longueuil. [ 7 ] In September 1987 he was sentenced to 18 months for another count of fraud in Longueuil. [ 8 ] In June 1994, Mr. Bellefeuille was sentenced to another penitentiary term.

This time he was sentenced in Montreal, Quebec to 3 years and 9 months for 10 counts of fraud and 6 months concurrently for one count of theft over $1000. [ 9 ] In October 1994, he was sentenced to 20 months and 3 years probation on each of 3 counts of fraud and 3 counts of theft over $1000 in Quebec City. [ 10 ] Despite efforts made by the Crown, there was no information about what these frauds were about, the amount involved, whether there was pre-trial custody taken into account etc. Mr. Bellefeuille indicated to the court that he plead guilty to these charges.

There is no indication on the record one way or another if this is correct. Victim Impact Statements [ 11 ] Dr. vanRooyen is a general practitioner who immigrated with his family from South Africa and started up a practice in Didsbury, Alberta. Dr. vanRooyen was enticed away from this practice by Mr. Bellefeuille to become the medical director of the Westview Medical Clinic, invest as a part owner, and practice there. Dr. vanRooyen stated in his statement that as a result of the fraud perpetrated by Mr.

Bellefeuille he lost his Didsbury practice (which according to exhibit 8 generated a gross income in 2005 of $400,000) and his family lost their Didsbury home. The family had to live in a small apartment for months. His one daughter lost her USA residency card as a direct result. It was a huge personal financial setback that will take many more years to recover from and will

postpone his retirement for 5 - 10 years. He was left stranded with no practice or income for months and had to start building a new one from scratch. [ 12 ] Not surprisingly, these problems caused Dr. vanRooyen much anxiety for the whole family, emotional stress, loss of sleep, depression and guilt towards his family. [ 13 ] Mr. Mummery, one of the other investors in the clinics, also filed a statement.

He indicated that as a result of the over one and a half million dollar investment into the Westview Medical Clinic, which he was able to salvage to a certain extent by working out a deal with the landlord, he was put into near bankruptcy.

His relationship with banking institutions, the tax department, the clinic construction contractors are still strained because of slow payments and lack of funds. [ 14 ] He stated that the strain of the situation left him in a position of near mental breakdown manifested by a reduced ability to concentrate, a reduced inclination to work with and trust people, and several physical impacts such as alopecia, nervous bowel, night sweats and insomnia. [ 15 ] Others who testified about the fraudulent scheme involving Dr. vanRooyen at the trial who clearly also suffered were Mr. Wilkinson and Ms. Bernice Paul. Mr.

Wilkinson broke down in tears on the stand as he described the stress of trying to keep the Westview Clinic operating so that he would not lose his investment (including cleaning the premises at night) all the while trying to balance caring for his very sick son who was in hospital. Ms. Paul was also in near tears as she described the lock down of the Clinic and trying to balance that with the last few days of her mother who was near death. Community letters [ 16 ] Mr. Bellefeuille entered four letters of support. One is from a colleague from Quebec who has known Mr. Bellefeuille for 22 years and states that Mr.

Bellefeuille is an attribute to society and he has always had a good relationship with him which included guaranteeing $20,000. [ 17 ] Another is from a church pastor who has known Mr. Bellefeuille since November 2009. He says that Mr. Bellefeuille and his wife Jamie attend church on Sunday and volunteer services in the church’s outreach ministry in the community. [ 18 ] The leader of a home bible study program who has known Mr. Bellefeuille for two years attested that Mr. Bellefeuille is “very amicable, jovial and a fun person to be around.” [ 19 ] Finally, a Calgary lawyer who has know Mr.

Bellefeuille in a professional and social capacity since 2006 stated that Mr. Bellefeuille is “kind, sincere, gentle-natured and of good character”. Mr. Bellefeuille’s statement [ 20 ] Mr. Bellefeuille wrote out a two page statement that states, in

summary, that he regrets his actions and that he is sorry about everything including the consequences of his actions which hurt everybody and that he has learned his lesson. He is 57 years old and is living with his wife. He has decided to live a simple life and never go into business again. He states that he doesn’t know how to do business. He regrets trying to impress people. He will try to find a job as a clerk in a warehouse or cleaner at the church. His goal is no longer to become rich and famous.

He is also ready to help Dr. vanRooyen in anyway that he can. [ 21 ] He points out that he hasn’t had any “justice problems” for 17 years and doesn’t intend to have any more in his life. He states that the trial was very stressful for him. He has respected his bail conditions and asks for a conditional sentence.

Crown’s position [ 22 ] The Crown argued that the appropriate range for Mr. Bellefeuille’s sentence in this case is 5 to 10 years. [ 23 ] Crown counsel stated that general deterrence and denunciation are the paramount objectives in this type of fraud and in this case, and that because of Mr. Bellefeuille’s record and character, specific deterrence is also very important. The gravity of this fraud was very serious and Mr.

Bellefeuille’s moral culpability is also very high. [ 24 ] The Crown argued that there were many aggravating factors to this fraud including that: - it was the breach of a trust relationship, - it involved the use of a false name and false credentials, - there is a serious and related record, - the scheme was elaborately and carefully planned, and - that this is a pattern of repeat behaviour of fraud, including what happened to Mr Wong and Mr.

Trudell, which negates any suggestion of good character. [ 25 ] The Crown argued that there were no mitigating factors here such as a guilty plea, or other extenuating factors as seen in some of the cases. [ 26 ] The Crown pointed out that the maximum sentence for this fraud conviction changed in September 2004 from ten to fourteen years and that that needs to be taken into account in the review of the case law on point.

Many cases were reviewed as I will discuss later. [ 27 ] Finally, the Crown sought a restitution order in the amount of $186,000 in favour of Dr. vanRooyen since he had managed through civil means to recover the balance of the $500,000 investment. Defence’s position [ 28 ] The Defence argued that Mr. Bellefeuille should be sentenced to a Conditional Sentence Order (CSO) to be served in the community with the condition of 24 hour house arrest excepting work. Counsel argued that Mr.

Bellefeuille fits the conditions for this sentence since: - the proper sentence here could be less than two years, indeed the appropriate range based on the case law here would be 2 to 3 years, - service of the sentence in the community would not endanger the safety of the community since Mr.

Bellefeuille has shown in his pre- trial conditional release to follow all of the conditions that were imposed on him and he is remorseful and - the service of the sentence in the community would be consistent with the fundamental principles of sentencing set out in s. 718 - 718.1 of the Criminal Code . [ 29 ] Defence counsel pointed out that the ultimate loss to Dr. vanRooyen was $186,000 and that should be taken into consideration vs the $500,000 original investment. [ 30 ] Defence did not contest any of the aggravating factors submitted by the Crown or the request for a restitution order.

[ 31 ] As mitigation factors the defence pointed to the fact that he is now 57 years old, married with two grown up sons and that he enjoys support in the community. Further, that Mr. Bellefeuille has some health issues such as heart, apnea and blood clot problems, and the fact that his criminal record is dated back to 1994. Counsel also pointed out that Mr. Bellefeuille has spent time in pre-trial custody (68 days as of today) - some of this time was before bail was posted and the rest from the date of conviction. The request is that Mr.

Bellefeuille be given two for one credit for the time he has spent in remand. [ 32 ] In sum, the objectives of deterrence and denunciation could be achieved through a strict CSO, it is in keeping with other similar cases (pursuant to the consideration in 718.2 (b)), and the principle that the offender should not be deprived of liberty if less restrictive sanctions are appropriate, as they are here. Analysis [ 33 ] To start with, I have considered s. 718 of the Criminal Code that sets out the fundamental purposes and the objectives of sentencing.

Here, as has been stated repeatedly in many cases dealing with sentencing for serious frauds involving the breach of trust relationships, the principle objectives for sentencing are denunciation and deterrence - both general and specific. This is important in this case since, although there is only one count for which I am sentencing, the one with respect to Dr. vanRooyen, there were many people who were adversely affected along the way as described above.

They expect a denunciatory sentence as a symbolic and collective statement that expresses society’s abhorrence of deliberate and calculated fraudulent conduct (see R. v. Johnson 2010 ABCA 392 at para 15 ). [ 34 ] Further, as stated by the court in Johnson at para 39 : “Parliament’s decision to increase the maximum penalty for fraud over $5000 (from 10 to 14 years) certainly reflects its view of the increased seriousness of this offence.” [ 35 ] In terms of general deterrence, it is obviously in society’s best interest to deter fraudulent behaviour.

The ramifications can be significant and indeed the situation before me is unfortunately a classic example of extreme financial pressure to the victim and his family which not only included the large personal loss of capital but also loss of his practice, his house and significant delay of his retirement plans. [ 36 ] Judge Allen in R. v.

Penney 2008 ABPC 339 at para 24 referred to a paper entitled “ 2007 Investor Study: Understanding the Social Impact of Investment Fraud .” The key findings were that victims involved in investor fraud suffered from loss of trust in other people, adverse health affects including increased stress and anger, depression, isolation and family breakdown. Many of these adverse affects are illustrated here, and help explain why Parliament and society are taking fraud more seriously. [ 37 ] Specific deterrence and the need to separate offenders from society is also important here (as set out in 718 (

b) and ©). Mr. Bellefeuille has an extensive history of fraudulent behaviour. Perhaps his last sentences deterred him somewhat since there are no convictions between what was likely the end of his sentence (perhaps 1998 ?) and now. We don’t really know what he was up to between 1998 and 2003. However in terms of his allegations of good character since then, we do know that while living in Vancouver in 2002 he was involved in another medical clinic that went under, he got involved in some investments that went sour and led to people pursuing Mr. Bellefeuille, as he said himself, in order “to destroy him” .

He then started very similar schemes firstly in 2003 involving Mr. Wong and then in 2004 involving both Mr. Wong and Mr. Trudell. [ 38 ] His involvement with Mr. Wong led to Mr. Wong’s loss of his investment and bankruptcy and Mr. Trudell also was left holding the bag of unpaid leases and brokens plans and lost a substantial amount of investment ($140,000 to $150,000). This behaviour was before the scheme in question that started in early 2005 and eventually involved Dr. vanRooyen in April 2006. [ 39 ] Accordingly, the time Mr.

Bellefeuille has already spent in the penitentiary may have had some deterrent effect, it obviously didn’t last. As Justice Cote eloquently put it at para 29 of R. v. McKinnon 2005 ABCA 8 : “The proof of the pudding is in the eating. The most important use of a previous criminal record is to see what sentence did not work last time.”

[ 40 ] The words of Justice McFadyen in R. v. Haneveld 2009 ABCA 249 are also instructive on this point. She said at para 8: “Protection of the public ultimately becomes paramount where the offender’s past reveals a history of continually re-offending after several years of trouble -free periods.” [ 41 ] Therefore, there is an obvious need in my view for further specific deterrence of Mr. Bellefeuille’s behaviour and necessity to seriously consider his separation from society.

In the latter regard, separation is important to consider when society is in danger - and that includes those in financial danger (see para 39 of McKinnon ). In my view, Mr. Bellefeuille will continue to place potential small business investors in jeopardy. I do not accept his present statements that he will mend his ways convincing, and believe that he is at a high risk to re-offend.

As has been often said, the best predictor of future behaviour is past behaviour. [ 42 ] The next fundamental principle of sentencing I must consider is that of s. 718.1 - the need for proportionality and degree of responsibility of the offender. I shall consider this fundamental principle along with the other principles I must consider pursuant to s. 718.2 which includes the aggravating and mitigating factors, sentences being similar to others with similar offenders and circumstances, and whether pursuant to s. 718.2 (

d) and s. 742.1 a conditional sentencing order is appropriate here. Degree of responsibility of the offender [ 43 ] There is no question in this case that Mr. Bellefeuille was very involved and responsible for the fraud perpetrated on Dr. vanRooyen here. This was not disputed. It distinguishes cases where the offender may have only been peripherally involved - such as R. v. Finch 2001 ABCA 223 for example where the custom’s officer aided in the deception and profited little himself. [ 44 ] Here Mr. Bellefeuille worked very hard at the elaborate plan than eventually ensnared Dr. vanRooyen.

He used a different name and got others to start addressing him in this new way, he prepared a C.V. and told people about his credentials as a doctor, indeed a specialist, and financial expert with an MBA. He organised many corporations and signed share certificates with different lawyers. He organised bank accounts, land and car leases - always getting somebody else to sign. He found “investors” and convinced them of his credibility through a veneer of respectability. He was at the centre of everything and as a result has a high degree of moral culpability and responsibility.

Aggravating factors [ 45 ] As noted above, defence counsel agreed that the existence of the aggravating circumstances put forward by the Crown applied here. To repeat, they are as follows: - the fraud involved the breach of a trust relationship (a factor enumerated in both ss. 380.1(1) (

d) and 718.2 (a) (iii) as required aggravating factors to consider in sentencing for fraud), - it involved the use of a false name and false credentials, - there is a serious and related record, - the scheme was elaborately and carefully planned, and - that this is a pattern of repeat behaviour of fraud, including what happened to Mr Wong and Mr. Trudell, which negates any suggestion of good character. Mitigating factors [ 46 ] A mitigating circumstance relating to the offender or offence should be considered to reduce a sentence.

In the large majority of the cases presented to me, a guilty plea was a mitigating circumstance. As discussed in Johnson at para 41 , “a guilty plea typically attracts a significant discount in sentence” A good example is in Penney where Judge Allen indicated that were it not for the guilty plea the 6 year sentence would have been 8. There was no guilty plea here. [ 47 ] Another mitigating factor found in most of the cases provided to me was that the offence was the first committed by the

offender with a finding by the trial judge that it was unlikely that the offender would commit another fraud and was sincerely remorseful. Indeed this was the case in all but three of the cases provided to me. This is also not the case here. [ 48 ] The fact that the offender has made part or full restitution is also a mitigating one discussed in many cases. Here, to the extent that Dr. vanRooyen was able to recover some of his losses was only because of his efforts through civil litigation and not by any help or cooperation on the part of Mr. Bellefeuille. Mr.

Bellefeuille indicated in his statement to me at the sentencing hearing that he would like to help his victim now, but no concrete effort of any type has been made to date despite the fact that he was on conditional release for years prior to the trial . [ 49 ] The defence suggested that Mr. Bellefeuille’s support in the community should be a mitigating circumstance to be taken into account. These letters perhaps correctly depict Mr. Bellefeuille as a fun and nice person, a church goer, and community volunteer. They also suggest that he is of good character. It should be remembered that Mr.

Bellefeuille befriended those people he later defrauded because of his good nature and ability to charm and convince. Therefore those attributes are of limited value as a mitigating factor. The fact that he is a community volunteer is a good thing. A suggestion by the Calgary lawyer that he is of “good character” however is not accepted by me. [ 50 ] As I discussed above, the evidence before me does not show Mr. Bellefeuille to be of good character - both involving the fraud as against Dr. vanRooyen but also with respect to his behaviour with others such as Mr. Wong, Mr. Trudell, Mr. Wilkinson and Mr. Mummery.

Accordingly, I cannot accept this as a mitigating factor here. [ 51 ] I should point out here that although the evidence of Mr. Bellefeuille’s behaviour is an aggravating factor going to the issue of sentencing - I am only sentencing Mr. Bellefeuille for the fraud perpetrated against Dr. vanRooyen - not any fraud that may have been perpetrated against others wherein Mr. Bellefeuille has not been charged or convicted of. I consider the evidence pursuant to s 726.1 of the Criminal Code as discussed at para 32 of Johnson . I have also considered R. v.

Angelillo 2006 SCC 55 which discusses the ability of trial judges to use information in sentencing that may help in the understanding of the circumstances of the offender - like here. Other factors [ 52 ] As mentioned above the defence also suggested that Mr. Bellefeuille’s health concerns should be taken into account in sentencing. Certainly this is information that I can consider as well pursuant to s 726.1. Indeed, in a couple of cases provided to me, the health of the offender was a significant factor in reducing the sentence that would have otherwise have been imposed. For instance in R. v.

Coulson 2008 ABPC 144 and R. v. Cremer 2007 ABQB 544 the offenders were very seriously ill - either wheelchair bound or near death and this was proven by extensive medical evidence. In R. v. Millward 2000 ABCA 308 some less serious health problems did not reduce the sentence. [ 53 ] Here there was no evidence led about Mr. Bellefeuille’s medical situation. During the trial however, Mr. Bellefeuille was ill one afternoon and as a precaution I called an ambulance to take him to hospital over his protests.

He was back the next morning for trial but was obviously stressed and not feeling well. [ 54 ] I can accept that Mr. Bellefeuille is far from the peak of good health. In the circumstances however, and lacking the evidentiary information that might help, I expect that his health issues can be monitored and dealt with in an incarceration setting and do not consider these problems as a factor that would otherwise go to reduce his sentence. Proportionality [ 55 ] S. 718.2 (

b) states: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” It is a guiding sentencing principle which turns our attention now to cases involving other offenders with like frauds. [ 56 ] I was provided with 30 cases dealing with fraud sentencing and within some of those cases many others were discussed.

[56] I was provided with 30 cases dealing with fraud sentencing and within some of those cases many others were discussed.Unfortunately, although they all deal with fraud of some degree or another, as discussed above, they almost all have guilty pleas and dealwith first offenders which in the normal course reduces the sentence significantly. Several also deal with situations that do not involve abreach of a trust relationship - which is a serious aggravating factor.

Finally, out of the 30 cases, only one, Johnson, discussed the impactof Parliament increasing the maximum sentence from 10 years to 14 years and the fact that therefore pre-Sept 2004 cases (or later onesdealing with pre 2004 offences) are of marginal value and need to be viewed in that light. [57] With all of these caveats I am however able to outline some factors which guide me in the sentencing of Mr.

Bellefeuille.Firstly, as recently stated in Johnson, our Court of Appeal has not yet set any starting point for fraud over $5000 generally or in multi-million dollar situations like it was facing in Johnson (see para 39). [58] In Johnson our Court of Appeal appears to have accepted in that case that an appropriate range for sentencing for a seriousfraud was between 8 to 10 years (see para. 50). The aggravating factors in Johnson were that it involved a large amount of money, alarge amount of victims, breaches of two different trust relationships and no guilty plea. The only thing going for Mr.

Johnson appearedto be that it was his first criminal conviction. A 10 year sentence was imposed (down from 13 years set at after trial). In my view, thecircumstances there were more serious than here. [59] An older Court of Appeal case suggested that the appropriate range for serious frauds was between 3 and 7 years - R. v.Kemphof (1999) 1999 ABCA 63 , 232 A.R. 154. In that case the offender had used a sophisticated scheme whereby he forgeddocuments to obtain $836,495 of tax credits from the government of Canada. He was sentenced to 5 years plus a compensationrestitution order in the same amount was made.

Since this range pre dates the Parliament’s amendments this range should be consideredin that light. I agree with the Crown that it should be inflated to reflect the increased maximum sentence imposed by Parliament. [60] The defence submitted that a CSO or 2 to 3 year incarceration was the appropriate range in light of the cases and should beapplied here. I do not agree. Firstly I note that the following cases involve our Court of Appeal setting aside CSOs in favour ofincarceration terms and each one was much less serious and had greater mitigating factors than here. They are: R. v.

Oliphant (1995) 1995 ABCA 492 , 178 A.R. 132 - query amount taken but full restitution made, 1st offence, guilty plea,trust breach - 11 months R. v. Bracegirdle 2004 ABCA 252 - $150,000, guilty plea, ? record but not mentioned, remainder of CSO time in jail instead R. v. McKinnon 2005 ABCA 8 - $61,000 fraud - 12 months imposed instead - guilty plea and prior related record, bookkeeper R. v. McTigue 2005 ABCA 30 - $247,000 fraud, guilty plea, first offence, remainder of CSO time in jail R. v. Fulcher 2007 ABCA 381 - $30,000 fraud, guilty plea, 1st offence, 2 yrs jail instead R. v.

Miles 2011 ABCA 133- $200,000 fraud, guilty plea, 1st offence, 2 yrs jail instead [61] There are a series of other cases presented by both the Crown and defence that have sentences of two to three yearsincarceration, but most are not as serious as this case.

One that is about the same seriousness in terms of the amount of the fraud, R. v.Castanada 2008 ONCJ 69, where there was an $800,000 fraud, again there were strong mitigating factors including the fact that this 61year old plead guilty, was in poor health and it was his first conviction (the Crown also only sought a 2 year sentence and the court notedat para. 29 that otherwise a penitentiary sentence could have been justified). [62] Further, only two in that group of sentences in the two to three year range dealt with someone with an offender with a priorrecord - McKinnon as noted above - but it only dealt with a $61,000 fraud - much less serious, and R. v.

Kasdorf 2010 ABPC 277 wherethere were prior convictions but there was also an early guilty plea, only $200,000 was involved, and the offender suffered such severedepression that she was hospitalised so the 18 month incarceration sentence (as requested by the Crown in that case) can bedistinguished. [63] The more serious cases, those closer to this situation in my view, had sentences in the range of 4 - 10 years. They are: R. v. Penney 2008 ABPC 339 - $1.1 M fraud wherein the court found that many of the victims included those in a trust relationship. Mr.

Penney also had one prior fraud convictions with a short sentences (9 months and 3 years probation) which according to Judge Allen at para. 47 “did little to curb his fraudulent activity”. Mr. Penney however did plead guilty and cooperated with the authorities - this was a significant mitigating factor. He was sentenced to 6 yrs (and would have been sentenced to 8 yrs had there not been a guilty plea). Although not perfectly on point, this case, in my view, is the closest to the situation at hand.

Although the total amount of the fraud was higher (which is not determinative of sentence - see Johnson at para 41 ), Mr. Johnson also had a mitigating circumstance not present here (the guilty plea). R. v.

Heiligsetzer 2005 Carswell Alta 2023 ;affd 2006 ABCA 2 - $1.5 M trust fraud - an “economic predator” with many victims - but this was a first offence and there was a guilty plea - Judge Stephenson suggested that 3 years was the starting point for trust fraud (this has been reconsidered by our Court of Appeal however as noted in Johnson ) - the 7 yrs sentence imposed by the trial judge was upheld on appeal R. v. Coulson 2008 ABPC 144 - $600,000 fraud, 43 victims, guilty plea and first offence to 50 year old man, trust relationship breached, would have been 4 yrs if not for terminal illness R. v.

Cremer 2007 ABQB 544 - $1.2 M, guilty plea , first offence, stroke victim, would have been 5 years if not for health. R. v. Johnson , supra - already discussed - 10 years R. v. Kemphof, supra - 1999 - $836,000 fraud - after trial - 5 years Sentence [ 64 ] After having heard over three weeks of testimony (over a period of 5 weeks), reviewing the new information and law provided at the sentencing hearing as reviewed above, and submissions of counsel, in my view, the appropriate sentence for the fraud perpetrated on Dr. vanRooyen by Mr. Bellefeuille is six years incarceration in a federal penitentiary. [ 65 ] Mr.

Bellefeuille perpetrated a planned and calculated fraud on Dr. vanRooyen that cost him not only his $500,000 investment (which he was partially able to recoup by civil remedies) but also his practice which he had been grossing an income of over $400,000 a year. The aggravating factors in this situation are serious and far outweigh the little to no mitigating factors. Mr.

Bellefeuille has a significant pre - existing history of fraud, misrepresentation and theft for which penitentiary terms have at best (to give him the benefit of the doubt) deterred him for only a few years from starting up his fraudulent activity again. [ 66 ] In considering his sentence I have reviewed cases dealing with the so called “jump” and “gap” principles since this sentence is about two years more than his last penitentiary sentence of 3 years and 9 months. I have no information about the seriousness of the fraud offences when that sentence was imposed however but do note that Mr.

Bellefeuille indicated that he plead guilty at that time and that the maximum for this offence has increased in 2004 as discussed above. [ 67 ] The problem about the lack of information was discussed in R. v. Blair 2005 ABCA 414 where Costigan J.A. said at para. 10: The “jump” principle, or the principle of incremental sentencing , cannot trump the proportionality principle in the circumstances of these offences committed by this offender.

In any event, the extent of the jump is difficult to assess in the absence of information concerning the circumstances and gravity of the previous offence and the sentencing factors present at that time. [ 68 ] Perhaps needless to say, I find that this is not an appropriate case for a conditional sentence order. In my view none of the conditions for such a sentence as set out in s 742.1 are met. Specifically, this is not a situation where a sentence of less than two years is appropriate, service of Mr.

Bellefeuille’s sentence may well endanger the community as in my view there is a likelihood of re-offending based on his past behaviour, and finally, such a sentence would not be consistent with the fundamental principles of sentencing, and in particular the need for denunciation and deterrence and the need for a proportionate sentence considering the gravity of the offence and level of responsibility of this offender.

[ 69 ] Finally, as requested by the Crown, and agreed to by defence, I order a restitution order in the amount of $186,000 in favour of Dr. vanRooyen. Credit for time served [ 70 ] As these offences pre-date the change in the legislation dealing with credit for time served, I am prepared to exercise my discretion and allow Mr. Bellefeuille two for one credit for the time he has spent in pre-sentence custody - or 68 days x 2 = 136 days (approximately 4.5 months). Conclusion [ 71 ] Mr.

Bellefeuille is sentenced to six years less the credit for time served, so that the time he has to serve is approximately five years and 7 and a half months. In addition, I grant an Order for restitution to Dr. vanRooyen in the amount of $186,000. Sentencing hearing heard on the 2 nd , 4 th , 5 th ,and 9 th of May, and the 20 th days of June, 2011. Dated at the City of Calgary, Alberta this 30th day of June, 2011. K.M. Eidsvik J.C.Q.B.A. Appearances: Photini Papadatou and Andrew Koeman for the Crown Rebecca Snukal for the Accused on June 20 th , 2011