R v Walker, 2016 ABQB 695

Court of Queen’s Bench of Alberta Citation: R v Walker, 2016 ABQB 695 Date: 20161208 Docket: 140067612Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Gary Richard Walker Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice L.R.A.

Ackerl _______________________________________________________ I Introduction [ 1 ] On September 14, 2016, the Accused entered a guilty plea on the third day of trial to four counts of fraud over $5,000 (Counts 1, 2, 4 and 5), and one count of fraud not exceeding $5,000 (Count 3), contrary to s. 380(1) of the Criminal Code , RSC 1985, c C-46 . II Facts [ 2 ] The offences occurred during the period from May 8, 2008 to April 15, 2011. [ 3 ] Count 5 of the indictment alleged that the Accused defrauded Antoniette Smith between October 1, 2010 and April 15, 2010. Smith testified at the outset of the trial.

She is 61 years old. She had worked in retail earning around $15,000 annually. At the time of trial, she was unemployed.

[ 4 ] The Accused contacted Smith through a dating website, probably “Plenty of Fish”. She first met him in person for a coffee date in October 2010. The Accused told her that he had 30 years of experience in investing money for people and making them rich. On a subsequent date, she told him she did not have a lot of money, but he said he could start investing for her with a small amount. She gave him $400 in cash. There was no discussion about any commissions. He wanted another $600 and said there was some sort of time pressure relating to the investment.

She deposited another $400 into his bank account on his instructions. [ 5 ] Smith believed the Accused wanted a romantic relationship with her, but she told him that she did not want that type of a relationship if he was investing money for her. He told her he had invested money for a former girlfriend, and made a $20,000 profit for her. [ 6 ] In December 2010, the Accused told Smith that he wanted her to invest more money before the end of the tax year and came to her home to do a presentation. In late 2010 or early 2011, he suggested she use her line of credit which had a limit of $45,000.

She obtained a money order for $45,000, using that line of credit. He told her the money would triple or quadruple in two to three years. He said the worst case scenario was that she would double her money. The Accused described the investment as a “partnership”, and said he was contributing double the amount of her contribution. She testified in cross-examination that she knew there was some risk involved in investing. She later asked for updates, but the Accused did not provide any. [ 7 ] The Accused talked about investing in shares, but not options. Smith understood she had acquired shares in Silver Wheaton.

When she asked for documentation, he told her she could follow the share information. [ 8 ] The Accused petitioned Smith for more money before the end of February 2011 due to a “time crunch”. She transferred $9,000 from her RRSPs and deposited those funds into his account. He was to contribute double that amount. She gave him a further $10,000 in early 2011 when he told her he needed $18,000 for a hedge fund to protect her earlier investment. He told her that he had covered her portion of the hedge and needed her contribution. He also indicated that she had already made a profit of $5,000.

Some of his emails mentioned a broker. [ 9 ] The Accused had told Smith that he would loan her money if she needed it. She asked him for a small amount for dental work in early 2011, and for a trip in the spring of 2011. On the first occasion, he made it sound like it would be a problem, so she desisted. The second time, she received no response. [ 10 ] Eventually, Smith asked for her money back. She continued to communicate with the Accused until early 2012 and eventually went to the RCMP. She never received any money back.

She never gave the Accused permission to use any of the money for personal use, or to use any of the profits on her investment. [ 11 ] Smith is still paying back the line of credit, which has left her on a very limited basic income. She is a single mother. Her two adult daughters live with her. One has learning disabilities. [ 12 ] The parties entered an Agreed Statement of Facts with respect to the remaining counts. [ 13 ] The Accused contacted Vickie Hill (Count 1), a 67 year old woman, through a website called Classmates.com. He presented himself as someone she knew from school.

After several months of communicating on the phone, he advised Hill that he would like to move to Alberta from Ontario to be closer to his kids. She allowed him to move into the basement of her residence in Calgary. The Accused convinced her to give him money to invest in the stock market. He told Hill that the stocks were a “sure fire win” and promised that she would “quadruple or more” her investment. She provided him with a total of $34,283.60 on nine occasions from May 8, 2008 to December 1, 2008.

During that time frame, Hill also loaned the Accused $4,500 and $5,000 which he said he needed in order to assist with his court case in Ontario. He never repaid these loans. He did pay her between $5,000 and $6,000, stating that her stocks had “won”. The Accused invested approximately 70% of Hill’s money. Many of the investments were made weeks after Hill provided money to the Accused. All of her investment money was lost and the remainder was used for the Accused’s personal living expenses. [ 14 ] The Accused left Hill to reside with Theresa Edelman, a 57 year old woman (Count 2).

He met her in 2009 on a dating website, “Plenty of Fish”. She was divorced at the time, and had been the victim of a motorcycle accident which left her with only one leg and a long term brain injury. Edelman and the Accused had a romantic relationship and occasionally travelled together. Edelman owned her home when she met the Accused. He lived with her for several months in Wetaskiwin. [ 15 ] During their relationship, Edelman was on painkillers which caused her to have difficulty with decision making. The Accused was aware of this at the time.

The Accused told Edelman that he had worked for an investment firm and used to make them a lot of money. He convinced her to provide him with money to invest. She gave him a total of $201,000 on seven occasions from December 29, 2008 to July 7, 2009. He convinced her to cash in RRSPs of approximately $100,000. Once that money was gone, he promised Edelman could get her money back if she gave him additional funds. She took out a $150,000 line of credit on her home and provided it to the Accused. [ 16 ] The Accused told Edelman that he lost all the money playing options.

She asked for paperwork so she could use the losses to save money in taxes and he told her that she could not use the losses for income tax purposes. [ 17 ] The Accused invested approximately 44% of the investment money he obtained from Edelman up to December 31, 2009. He used the remainder for his personal expenses. He paid for some of the joint living expenses while he was residing with Edelman. He invested approximately 75% of the last $20,000 and the remaining $5,000 was used for his personal expenses. [ 18 ] Edelman lost her home as a result of the fraud.

She is now living with her elderly parents and earns approximately $400 every two weeks through her employment. [ 19 ] David Yee, a 57 year old man, hired the Accused as a sub-agent for S&D International Group in 2010 (Count 3). The Accused told Yee that he should invest his money in Apple stocks because the IPhone 4 was set to be released soon. The Accused said that he would take 20% of the profit. On January 19, 2010, Yee gave the Accused $5,000 to purchase shares in Apple. A month later,

Yee asked him for a stock certificate. The Accused promised it was on its way, but he never did provide one. The Accused put $2,510 USD into his own trading account and purchased AAPL call options on January 25 to 27, 2010. That investment was lost on February 22, 2010 when those options expired. The remaining funds were used for the Accused’s personal expenses. [ 20 ] Wilson Lam, a 35 year old man, met the Accused in 2009 when the Accused moved to Alberta from Ontario (Count 4). Lam was the project and marketing director of S&D International Group.

The Accused was introduced as “one of the top sales consultants in Toronto”. The Accused told Lam that he was a successful financial planner and stock broker in Toronto. They formed a friendship. [ 21 ] In 2010, Lam learned that he had a $30,000 liability payable to CRA and asked the Accused to provide him with some tips on stocks. The Accused promised that he would be able to meet Lam’s investment objectives quickly and there was no chance of losing his money.

The Accused said that he would take 20% of the profits of any investment and pressured Lam to invest his money quickly as there was a “one time opportunity” he had been monitoring. Lam asked for regular statements and two post-dated cheques as insurance. The Accused agreed. Lam also wanted to sign an agreement, but the Accused refused, saying that the investment was based on trust. [ 22 ] Lam provided $10,000 from his line of credit and gave it to the Accused on March 26, 2010. Lam requested statements, but the Accused refused to give him any. The Accused told Lam that the stocks had gone “to the bottom”.

The Accused promised to assist with interest payments on the line of credit and provided Lam with $100 to $300 on an inconsistent basis when Lam texted the Accused to request money. Many times, the Accused would reply “no money” or “will deposit next month”. By the end of June 2013, the Accused had provided Lam with $3,500 to cover interest payments. The post-dated cheques were NSF when Lam tried to cash them. Lam is still repaying his line of credit. CRA has put a lien on his home. Approximately one month after receiving Lam’s money, the Accused invested $1,200 USD, but 10 days later he withdrew $1,100.

By the end of June 2010, the balance of the trading accounts was less than $50. Therefore, the entirety of Lam’s investment, aside from $100, was used for the Accused’s personal expenses. [ 23 ] The Accused did not have the complainants’ permission to use their money for his personal expenses, nor to “hold back” any of the investment money. With respect to Edelman and Hill, the Accused was not to be receiving any type of commission in return for investing.

The Accused told Lam, Yee and Smith that he was going to invest in stocks, not options. [ 24 ] Edelman, Lam and Hill provided victim impact statements outlining the impact of the Accused’s crimes on their lives. Edelman stated that she lost her home and divorce settlement assets as a result of her investments with the Accused. She estimated that it will take ten years to pay back the taxes owing in relation to cashing her RRSPs. Lam suffered financially and was let go by S&D. He stated that he was not able to perform at work due to stress resulting from the scam.

Hill had to take out a large line of credit against her home and it is not yet paid off. [ 25 ] Defence counsel highlights that the Accused returned between $5,000 and $6,000 to Hill, and a certain percentage of Hill and Edelman funds were invested into his US Margin account for investment. While he converted some funds to his personal expenses, significant portions were lost in his investments in stock options. [ 26 ] The Accused is 70 years old.

He has a dated criminal record, including a 1982 conviction on 56 counts of fraud over $200 for which he was sentenced to four years concurrent, and a 1983 conviction for theft by a person required to account for which he was sentenced to two months imprisonment. His last conviction was in 1987. [ 27 ] Defence counsel provided two letters from Dr. Zamanpour, who has been the Accused’s family physician since March 2016. Dr.

Zamanpour indicated that the Accused is in poor health and his medical history is complex, including: abdominal ascites, diabetes, congestive heart failure, lower extremity cellulitis, morbid obesity, atrial fibrillation, hypertension, chronic renal failure, gout, chronic anemia, hyperkalemia, dyslipidemia, hypothyroidism, sleep apnea, ischemic heart disease, poor mobility, and renal failure. The new diagnosis of ascites (accumulation of a large amount of fluid in his abdominal cavity) was being investigated. Dr. Zamanpour indicated that it might be related to an underlying malignancy.

The Accused requires frequent health care related visits, ongoing treatment and medical supervision.

Specifically, he requires: − medication supervision − regular blood tests − wound care for leg ulcers − timely access to medical care including to the emergency department − monitoring by cardiologist, nephrologist and internal medicine specialists − repeat colonoscopy in six months − diabetes management − a walker, and − assessment by an occupational therapist if he is incarcerated. [ 28 ] Crown provided information received from Leah Cook, RN, Assistant Chief, Health Services, Correctional Service of Canada who indicated that while the Accused has quite a long list of what seem to be complex medical issues, all of the issues can be managed within an institutional clinic.

In response to the Accused’s particular situation, she noted that: − many offenders are on medication and are reviewed by a physician on an ongoing basis − bloodwork is completed onsite and reviewed by the physician

− nursing services are available − most institutions are in close proximity to larger centres with adequate emergency services capable of managing the identified areas of concern − medical escorts to see specialists in the community occur daily and would include management of ascites, and − many offenders require and are permitted mobility aids. [ 29 ] The Accused entered a guilty plea and expressed remorse through his counsel and personally in Court today. III Legislated Sentencing Principles [ 30 ] At the time of the offences, s. 380(1) (

a) of the Criminal Code provided that for fraud over $5,000, the offender is liable to a term of imprisonment not exceeding 14 years, and for fraud under $5,000, to a term not exceeding 2 years. [ 31 ] The Criminal Code provides: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances… [ 32 ] At the relevant times, s. 380.1(1) provided that the following are aggravating circumstances on a fraud conviction: (

a) the value of the fraud committed exceeded one million dollars; (

b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market; (

c) the offence involved a large number of victims; and (

d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community. [ 33 ]

Section 380.1(2) provided that the court shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. IV Positions of the Parties [ 34 ] The Crown seeks: 1. 3½ years imprisonment;

2. a victim surcharge of $200 per count pursuant to s. 737 of the Criminal Code, for a total of $1,000; 3. a DNA order pursuant to s. 487.051(3) of the Criminal Code; 4. restitution orders pursuant to s. 738 of the Criminal Code with respect to the five complainants for a total of $315,083.60; 5. a prohibition order pursuant to s. 380.2 for a period of 5 years, commencing upon the expiry of the custodial sentence; and 6. a fine in lieu of forfeiture pursuant to s. 467.37 in the amount of $315,083.60 with 3 years to pay beginning upon releasefrom prison and 4 years imprisonment in default of payment of the fine. [35] Defence counsel submits that a fit and appropriate sentence would be: 1. a conditional sentence of imprisonment of between 17 months and 2 years less a day with conditions restricting theAccused’s liberty by way of house arrest and preventing him from participating in any financial transaction that would put people at risk;and 2. a probation order of between 2 and 3 years containing the same conditions preventing the Accused from participating in anyfinancial transaction that would put people at risk. [36] Both counsel referred to R v Davis, 2014 ABCA 115, 572 AR 237, a case of fraud by a lawyer.

At paras 31-34, the Court ofAppeal noted ranges in case law presented by the Crown for three categories of fraud/theft: 1. non-lawyers committing trust thefts of $175,000 to $268,000 had received 18 months to 2 years in jail; 2. lawyers committing trust thefts of $700,000 to $2,000,000 had received 12 months to 9 years in jail; and 3. others committing frauds exceeding $1,000,000 had received 3 to 6 years in jail. [37] The Crown notes that no cases cited in Davis in relation to the first category involved an offender with a prior record for fraudor theft.

As well, the total amount defrauded in this case ($315,000), is higher than the amounts in the first category on non-lawyerscommitting trust thefts. All offenders in the cases cited under that first category entered guilty pleas and accepted responsibility for theiroffences.

Full restitution was made in R v Zenari, 2012 ABCA 279, 536 AR 224 (18 months), and the offender in R v Bracegirdle, 2004ABCA 252, 354 AR 313 (2 years less a day) consented to a civil judgment and agreed to monthly payments. [38] The Crown submits that the following cases are factually similar to this one: R v Rosenberg, 2013 ONCJ 670, [2013] OJ No5575, R v Nichols (2001), (ON CA), 148 OAC 344, [2001] OJ No 3220, R v Tremblay, 2014 BCSC 901, [2014] BCJNo 1264, and R v Garrick, 2014 ONCA 757, [2014] OJ No 5172. [39] In Rosenberg, an incorrigible serial con artist who had only recently completed a lengthy penitentiary sentence presentedhimself as a sophisticated financial advisor, defrauding complainants of over $1,000,000.

Two of the victims believed they were inromantic relationships with him, one losing $155,000 and the other $80,000. Rosenberg was sentenced to 5 years concurrent on each ofthose counts, and lesser concurrent sentences on other similar and related charges. [40] In Nichols, a telemarketing salesman with no previous record convinced an 82 year old woman to send him over USD$1,000,000. He returned $800,000.

The Court of Appeal overturned the 5 year 3 month sentence and substituted 4 years. [41] In Tremblay, the fraudster befriended an unsophisticated victim, defrauding her of $11,900 through a fabricated investmentscheme. The victim was emotionally and financially devastated. Tremblay had 30 prior convictions. He was on parole for attemptedmurder at the time of the offence and it was likely his parole would be revoked. He was sentenced to 22 months in jail for the fraud. [42] In Garrick, the offender befriended four individuals in order to convince them to invest a total of $261,000 with him over a 3year period.

The judge took into account a 23 month conditional sentence for a similar later fraud he was already serving when imposingsentence. He was sentenced to 18 months in jail less pre-sentence custody credit. [43] Defence counsel submits that the circumstances of this case fall most closely within the first category in Davis, and thereforea sentencing range of 18 months to 2 years is appropriate. Counsel argues that the Accused was not in a formal position of trust orauthority as defined in the Criminal Code.

Counsel points out that the Court of Appeal in Davis emphasized that the range for dishonestlawyers is higher than for non-lawyers, and the amount in that case was over $1,000,000. Davis was sentenced to 4 years. [44] Defence counsel relies on R v Stergiou, 2015 ABCA 35, [2015] AJ No 80, R v Fraser, 2007 ABCA 386, 425 AR 260, R vSevcik, 2005 ABCA 194, 367 AR 197, R v Wilson, (ON CA), [2003] OJ No 1047, 170 OAC 128, R v Howe, 2002

ABCA 277, 317 AR 225, R v Hartz, 2002 ABCA 108, 312 AR 399, R v Dobis, (ON CA), [2002] OJ No 646, 58 OR(3d) 536 (CA), R v Grundy, 2002 ABCA 4, 299 AR 182, and R v Armstrong, 2001 ABPC 106, 289 AR 141. [45] The offender in Stergiou had no prior record and had been gainfully employed for many years. He embezzled $547,840 fromhis employer over 26 months. He repaid $226,000 by selling his condo and other property, entered into a consent judgment for $286,353and began to rebuild his life.

He was sentenced to 18 months in jail. [46] In Fraser, an office manager defrauded the University of Alberta of $132,160 over a 22 month period. She made earlyrestitution to her employer of $150,000. There was evidence of long-standing mental health issues. Her counsel had argued that the delayin prosecution had a serious prejudicial effect upon her. She had already spent 4 weeks of the sentence imposed after trial.

The Court ofAppeal imposed a conditional sentence of 12 months, noting that in most cases that sentence would be unduly lenient. [47] In Sevcik, the accused pleaded guilty to defrauding his employer of over $95,000 over 11 months. He had a gamblingaddiction and no prior record. He was sentenced to 18 months in jail. [48] The remaining authorities relied on by defence counsel pre-date the increased maximum penalty for fraud.

The Crown cites Rv Johnson, 2010 ABCA 392, 493 AR 74 for the proposition that sentences pre-dating the 2004 amendment raising the maximum term ofimprisonment from 10 to 14 years are less persuasive. [49] In Wilson, the offender defrauded his employer of $900,000 over a 4 year period. The Court called it a serious breach of trustand imposed 18 months in jail. [50] In Howe, the accused had fraudulently received $760,000 by way of an investment tax credit. There had been no attempt atrestitution. Both accused were well-established business people of previous good character.

The Court of Appeal found that apenitentiary sentence was appropriate, but upheld the 2 year conditional sentence and compensation order due to the time which hadelapsed between sentencing and appeal. [51] The offender in Hartz had embezzled $123,860 from her employer in her role as person responsible for certain financial tasks.She had no prior record, and suffered health problems, including Crohn’s disease which required her to have an ileostomy.

The Court ofAppeal upheld the sentence of 18 months in jail. [52] In Dobis, an accounting manager embezzled $286,636 from his employer over 3 years and also defrauded his employer of$1.9 million in relation to a Nigerian mail fraud. He had no prior record. The Ontario Court of Appeal substituted 2 years less a day in jailfor the conditional sentence imposed by the trial judge. The Court commented that an appropriate sentence at trial would have been atleast 3 years. [53] In Grundy, a conditional sentence of 2 years less a day had been imposed at trial.

While employed by Yorkton Securities,Grundy embezzled around $218,000 from client accounts. The Court of Appeal held that the sentencing judge had underemphasized thegravity and the accused’s moral blameworthiness and overemphasized his personal circumstances. Further, the sentence lacked deterrentor punitive qualities. A fit sentence would have been a significant period of incarceration, however the accused had served almost 8months. The Court substituted a more restrictive conditional sentence. [54] Finally, the accused in Armstrong embezzled $186,202 from her employer.

She had no prior record, was cooperative with theauthorities and pled guilty. She had a gambling addiction. The Provincial Court imposed a conditional sentence of 2 years less a day. V Analysis A Duration of Sentence 1 Aggravating and Mitigating Factors [55] A sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [56] Defence counsel submits that the fraud was neither complex nor sophisticated. I agree that it was not complex.

Essentially, theAccused represented that he would invest the victims’ money to make them a profit, but instead took the victims’ money and converted itto his own use. [57] I also agree that the fraud was not particularly sophisticated. The Accused did use social websites to find his victims. He alsogave some sort of a formal presentation for Smith. However, he basically bamboozled his victims into giving him money. [58] Although the crimes were not particularly complex or sophisticated, all five frauds show a pattern of predatory, deliberate,planned, persistent, ongoing criminal behaviour.

There was nothing spontaneous or impulsive about these crimes. He constructed thevictim’s participation. [59] Defence counsel notes that a number of the authorities referred to involved crimes by employees or others in positions of trustor authority, which is an aggravating factor. [60] Fraud or theft by an employee is a crime of opportunity. Courts are properly concerned that those with easy access to anemployer’s financial information and assets be strongly discouraged from taking advantage of the opportunity to steal. [61] The Accused was not in such a position.

However, there is no suggestion in the case law that the absence of such a feature is amitigating factor.

[62] Crown submitted that the Accused placed himself in a position of trust with each victim as an investment advisor and friend,citing Garrick. The Court in Garrick held that although there was no abuse of a position of trust based on authority in that case, theexploitation of the friendships the offender had cultivated with the victims was an aggravating factor. [63] The Accused in this case took active steps to seek out his victims. He represented himself to all of the complainants as anexperienced investor and cultivated personal relationships with them. He “groomed” the victims.

He acquired sums on a regular basisfrom multiple victims on 23 separate occasions over a 3 year period. He persuaded his victims to cash RRSPs and borrow against lines ofcredit.

He misrepresented the degree of risk involved, spent a portion of the money on his personal expenses, invested some of themoney in high-risk options in his own investment account instead of shares as promised, did not invest in a timely manner, was dishonestabout the performance of the investments and what had happened to the money, refused to provide documentation, and induced some ofthe complainants to provide him with more money in an effort to recover their “losses” or “hedge” their investments. [64] Defence submits that there were not a “large number of victims” as contemplated by s. 380.1(c). [65] Courts have found upwards of 13 victims to be a “large number”: R v deKock, 2008 ABPC 279, [2008] AJ No 1147 (13victims); R v Winter, [2008] NJ No 260 (15 victims); R v Banks, 2010 ONCJ 339, [2010] OJ No 3550 (18 victims); R v Penney, 2008ABPC 339, [2008] AJ No 1353 (20 victims); R v Cruz, 2010 ONCJ 640, [2010] OJ No 5735 (29 victims); R v Dhanaswar, [2014] OJNo 6388, 2014 CarswellOnt 18873 (31 victims). [66] The Alberta Court of Appeal ruled that 50 was a “large number of victims” in Johnson.

However, it added at para 36 thatquite apart from s. 380.1(1)(c), the fact that a crime involved several victims constitutes an aggravating factor in sentencing at commonlaw. Similarly, while four was not found to be a large number of victims in R v Sanmugam, 2012 ONSC 6663, [2012] OJ No 5647, theCourt found the fact that there were multiple victims was an aggravating circumstance. [67] The Crown provided a timeline reflecting the fact that the complainants were defrauded in succession with little time betweenthe last payment by one complainant and the first payment by the next complainant.

I find that although there was not a “large number”of victims in this case, as that phrase is used in s. 380(1)(c), it is aggravating that there were multiple successive victims. [68] Defence counsel argues that the Accused invested some of the money provided to him and notes the Accused’s contentionthat he hoped to make money for the victims. However, he deposited those monies into his own investment accounts. This is notinconsistent with an inference that he was motivated solely by greed. He was almost invariably unresponsive to requests for updates, orreturn or use of funds.

None of his actions support his assertion that he intended to benefit any of the complainants. There is nosuggestion that he was impacted by personal difficulties such as gambling or drug addictions which would explain his behavior. No suchmitigating factors were articulated. [69] The total losses were around $315,000. Most of the complainants were of limited means. The amounts taken from them wereclearly substantial to them, given their financial circumstances. The Accused was aware that those victims were of restricted means, andtherefore was aware that the loss of their money would be very significant to them.

The Accused continued his crimes despitedevastating financial consequences to some of his victims. When one was no longer able or willing to provide funds, he moved on to thenext victim. His conduct was continuous, calculated and callous. [70] I find the Accused’s exploitation of Smith, Hill and Edelman, in particular, to be aggravating in this case. The Accusedinsinuated himself into the lives of these vulnerable women and moved on once he had drained their financial resources. He would havebeen aware of Edelman’s injuries, and was aware of the effect of her painkillers on her decision making abilities.

He would also havebeen well aware that these complainants were well past their prime earning years. [71] This predatory targeting of vulnerable victims, with a devastating impact on their finances, casts the Accused with high moralblameworthiness. [72] Such fraudulent exploitation of vulnerable victims with resulting catastrophic financial consequences to them demands asentence emphasizing deterrence and denunciation. Denunciation is a predominant sentencing objective in a calculated, deliberate caseof fraud: R v Johnson (ABCA).

Moreover, in the particular circumstances of this case, there is considerable concern about theaccused’s rehabilitation prospects. His criminal record, notably involves a conviction on 56 counts of fraud. His resumption of similarcriminality after receiving a penitentiary sentence and after a window of time for change, suggests rehabilitation of this aged accused isquestionable. It also highlights a need for specific deterrence and protection of the public. [73] The Accused pled guilty. A guilty plea is a mitigating factor.

Defence counsel observes that his guilty plea saved 7 days oftrial time, and allowed most of the victims to avoid testifying. However, this occurred on the third day of a 10 day trial. Several witnessesin attendance, had travelled from out of town. Under the circumstances, the mitigating weight of the guilty plea is moderated. [74] The Accused is 70 years old. Advanced age has been considered in some circumstances to be a mitigating feature.

Courts havereasoned that the older a person is, the harder it is to serve a prison term, and the less that person's life expectancy will be after releasefrom prison: R v AR, (MB CA), [1994] MJ No 89, 92 Man R (2d) 183 (CA).

A sentence must not deprive theoffender of any hope of release or rehabilitation: R v Johnson, 2012 ONCA 339 at paras 15-25, 285 CCC (3d) 120, R v Parry, 2012ONCA 171 at paras 17-19, 289 OAC 201. [75] The Supreme Court explained in R v CAM, (SCC), [1996] 1 SCR 500, [1996] SCJ No 28 at para 74 thatafter a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplatedsentence starts to surpass any reasonable estimation of the offender's remaining natural life span.

Accordingly, in exercising thespecialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatlyexceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation,have all but depleted their functional value. In that case, the Supreme Court restored a 25 year sentence which the Court of Appeal hadreduced to 18 years and 8 months.

[76] It has also been held that a risk that an accused may not outlive the time he is required to serve is not a controlling or decisivefactor in deciding on the appropriate sentence, but rather just one of many factors to be taken into account: R v Shah (1994), (BC CA), 94 CCC (3d) 45 at 50, [1994] BCJ No 2261 (CA). [77] Where an incarceratory sentence is appropriate, advanced age does not necessarily entitle the offender to a non-incarceratorysentence, but may result in a reduction in the time he would otherwise have served: R v Dinn (1993), (NL CA), 104Nfld & PEIR 263, 329 APR 263 (CA). [78] In this case, I note that the Accused’s age and attendant life experience enabled him to credibly suggest he had successfullyinvested others’ money for decades. [79] The accused now, somewhat ironically, advances age to argue mitigation of sentence.

I recognize it is likely more difficult foran older person to serve a prison term. While mindful of the Accused’s age, it would be pure speculation to conclude that any sentencewithin the sentencing range suggested by the case law presented would result in incarceration greatly exceeding the Accused’s expectedremaining life span. I find that the Accused’s age is a factor in this case, but one with little weight, given the sentencing range. [80] The Accused has also provided evidence regarding his health status.

The Crown provided material indicating that theAccused’s health issues can be accommodated in a correctional setting, and that correctional facilities are accustomed to accommodatinginmates in this way. Such accommodation is available in both provincial and federal facilities. [81] An accused's ill health is always a factor to be considered.

It may warrant a reduction in the sentence that would otherwisehave been imposed or a different kind of sentence, depending on the nature and effect of the infirmity and the nature and seriousness ofthe crime: AR at para 37. [82] While mindful of the Accused’s various health issues, I am satisfied that his health concerns can be accommodated in acorrectional setting. Therefore, this factor carries nominal weight in determining the length or type of sentence imposed. 2 Fit Sentence [83] Sentencing is inevitably fact driven.

The cases relied on by the Crown involved larger amounts, in one case a lengthier record,and other distinguishable facts. [84] Defence counsel’s authorities are also distinguishable. All were employee embezzlement cases. The amounts embezzled inFraser, Sevcik, Hartz, Grundy, Armstrong were significantly less than the total amount obtained by the Accused from the complainants.The accused in Stergiou, Sevcik, Howe, Hartz, Dobis, and Armstrong had no prior record. The accused in Stergiou and Fraser hadmade significant efforts to return the money.

The accused in Fraser, Sevcik and Armstrong had mental health issues or a gamblingaddiction. The appellate courts in Fraser, Howe, Dobis and Grundy commented that more severe sentences were warranted than whatthey imposed. [85] I conclude that a fit sentence in this case falls between the sentences proposed by counsel. Taking into account all of theaggravating and mitigating factors as outlined above, I will impose a sentence of 3 years for each of the offences of fraud over $5,000(Counts 1, 2, 4 and 5). I impose a sentence of 1½ years for the fraud under $5,000 (Count 3).

All of these sentences are to runconcurrently. [86] Given this finding, it is unnecessary to consider the appropriateness of a conditional sentence. However, had I been persuadedthat something less than 2 years was appropriate, I would not have ordered a conditional sentence in this case, due to the importance ofemphasizing denunciation and deterrence. B Victim Surcharge [87] Section 737(1) provides: 737

(1) An offender who is convicted … of an offence under this Act … shall pay a victim surcharge, in addition to any otherpunishment imposed on the offender. [88] The Crown requests a victim surcharge of $200 per count pursuant to s. 737 for a total of $1,000. Defence counsel does nottake issue with this position. [89] I impose a victim surcharge of $200 per count for a total of $1,000, pursuant to s. 737. C DNA Order [90] Defence counsel submits that a DNA order pursuant to s. 487.051 is entirely unnecessary in this case. Fraud over $5,000 is nota specifically designated primary or secondary offence.

Further, DNA evidence would seldom be of any practical use in detecting anoffender in a fraud case and therefore it would serve no practical purpose in deterring the Accused or protecting the community. [91] In deciding whether to impose a DNA order in a case of fraud over $5,000, a court must consider the accused’s criminalrecord, the nature of the offence, the circumstances surrounding its commission, and the impact the order would have on the accused’sprivacy and security. [92] Neither the Accused’s dated record, nor the offences for which he is currently being sentenced or their circumstances, raiseconcerns in relation to which DNA evidence would be useful.

The Accused is of an advanced age, and has restricted mobility.

[ 93 ] Having considered the relevant factors in relation to the Accused, I decline to impose a DNA order. D Restitution Order [ 94 ] Crown seeks a restitution order pursuant to s. 738 of the Criminal Code with respect to the five complainants for a total of $315,083.60. Defence counsel acknowledges that it is appropriate in the circumstances, but adds returned funds should be taken into account. Defence further submits that the Accused is of limited means: he has minimal assets and his only source of income is CPP and OAS.

Aside from the trial evidence relating to the monies taken from the complainants, no sworn evidence is before the Court containing any financial disclosure by the Accused. [ 95 ] Pursuant to s. 738(1), a court may order that an offender make restitution to a victim. If the compensation is not paid, the victim may enter the order in Superior Court as a civil judgment and enforce it as such. [ 96 ] The Court of Appeal has held that an offender's means have limited import in cases of fraud: Johnson at para 29, R v Cadieux , 2004 ABCA 98 at para 9 , 346 AR 56.

Thus, ability to pay must take into consideration what disclosure an offender has made, or not made, concerning disposition of the proceeds of the crime. [ 97 ] The Accused’s bank records relating to the offences were seized and some or all were adduced as evidence at trial. It appears from the financial evidence in this case that most of the proceeds of the crimes were either spent on personal expenses or lost through unsuccessful investments.

However, as for the information regarding the Accused’s means, I place no weight on the unsworn information conveyed by him through counsel as to his ability to pay, given that his crimes involved significant dishonesty and obfuscation. I am mindful that an offender’s means have limited import in cases of fraud. As the Alberta Court of Appeal noted in Johnson , economic predators should not be permitted to walk away in the future from any obligations to their victims.

In my view, the Court should not presume that the complainants in this case will not be able to successfully enforce the order as a civil judgment. [ 98 ] Defence counsel notes that Hill acknowledged receiving between $5,000 and $6,000 from the Accused and Lam received $3,500.

Further, there was evidence that some of the money provided by Edelman was used for the joint living expenses of her and the Accused. [ 99 ] Consequently, I order pursuant to s. 738 that the Accused provide restitution totalling $295,300 to the complainants as follows: • Wilson Lam - $6,500 • David Yee - $5,000 • Theresa Edelman - $190,000 • Antoniette Smith - $64,800 • Vickie Hill - $29,000. E Prohibition Order [ 100 ] The Crown seeks a prohibition order pursuant to s. 380.2: 380.2

(1) When an offender is convicted...of an offence referred to in subsection 380(1) , the court that sentences...the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person. [ 101 ] This provision came into force after April 15, 2011. [ 102 ]

Section 11(

i) of the Charter provides that if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to the benefit of the lesser punishment. [ 103 ] A measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender's liberty or security interests.

To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person's ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public: R v KRJ , 2016 SCC 31 , [2016] SCJ No 31. Applying this reformulated test, the 2012 amendments to s. 161(1) constitute punishment.

The prohibitions found in these amendments are a consequence of conviction, imposed in furtherance of the purpose and principles of sentencing, and they can have a significant impact on the liberty and security of offenders. [ 104 ] In R v Hooyer , 2016 ONCA 44 , 129 OR (3d) 81, the Court held that a s. 380.2(1) order imposes “significant restrictions” on the accused's liberty and security of the person. Therefore, the presumption against retrospectivity applies in interpreting the temporal scope of that section. [ 105 ] I agree with the conclusion in Hooyer and decline to make a prohibition order in this case.

F Fine in Lieu of Forfeiture [ 106 ]

Section 462.37 provides in part: 462.37(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property...

(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall (

a) impose, in default of payment of that fine, a term of imprisonment …(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars … [ 107 ] The Crown requests a fine in lieu of forfeiture pursuant to s. 467.37 in the amount of $315,083.60 with 3 years to pay beginning upon release from prison and 4 years imprisonment in default of payment of the fine. [ 108 ] Defence counsel argues that given the Accused’s financial means, age and health, it will be next to impossible to ever pay the fine.

It would be unusually cruel and harsh for him to serve 4 years in prison because of his inability to pay the fine. [ 109 ] In R v Angelis , 2016 ONCA 675 , [2016] OJ No 4735, appeal to SCC launched November 14, 2016, an employee fraud case, the Court observed that the purpose of a fine in lieu of forfeiture is to replace the proceeds of crime with their monetary equivalent, not as punishment specifically for the designated offence.

Subsequent imprisonment for failure to pay the fine in lieu of forfeiture is an enforcement mechanism to encourage payment by those with the resources to do so: see also R v Dritsas , 2015 MBCA 19 , [2015] MJ No 46. Therefore, the carceral component of a sentence does not justify refusal to order payment of a fine in lieu of forfeiture. Further, the offender’s rehabilitation is not a relevant factor, nor is the offender’s inability to pay.

However, inability to pay may play a role in determining the time limit for payment. [ 110 ] The Supreme Court in R v Lavigne , 2006 SCC 10 , [2006] 1 SCR 392 held that where the criteria are met, the judge has only a limited discretion to refuse to make the order. The discretion is limited by the objective of the provision, the nature of the order and the circumstances in which the order is made. One important objective is to target criminal organizations and to deter them from continuing their criminal activities.

The Court cited, as examples of circumstances in which the objectives of the provisions do not call for a fine to be imposed, the fact that the offender did not profit from the crime and it was an isolated crime committed by an offender acting alone.

The Court stated at para 32 that the mere fact that the property has been used up cannot justify exercising the discretion to reduce the amount of the fine, especially where the property consisted of cash. [ 111 ] Finally, the Supreme Court in Lavigne observed that the types of concerns raised by defence counsel in this case are appropriate considerations when the time allowed for payment of the fine instead of forfeiture has expired under s. 734.7(1)(b).

At that point, the court asked to issue a warrant of committal may not do so unless it is satisfied that the offender has, without reasonable excuse, refused to pay the fine. Failure to pay because of poverty cannot be equated to refusal to pay: R v Wu , [2003] 3 SCR 530, 2003 SCC 73 . Where the offender's reasonable excuse for failure to pay a fine is simple poverty, it is not open to a court to jail him. [ 112 ] The legislative criteria are met in this case. The Court’s discretion not to impose a fine is limited. Although the money taken may now be gone, the Accused did profit from his crimes.

Each offence was not isolated, but formed a pattern of persistent criminal fraudulent behaviour. The concerns raised by defence counsel are appropriately addressed at the point in time when time for payment has expired. [ 113 ] Therefore, I order a fine in lieu of forfeiture in the amount of $295,300. The restitution order shall take priority over payment of the fine in lieu of forfeiture, and the fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order: R v Dhanaswar , 2016 ONCA 229 .

VI Conclusion [ 114 ] The Accused, Gary Walker, is sentenced to 3 years in jail on Counts 1, 2, 4 and 5. I impose a sentence of 1½ years on Count 3. All of these sentences are to run concurrently. [ 115 ] A victim surcharge of $200 per count is imposed for a total of $1,000. There will be no time to pay this surcharge.

Time in default to be served concurrently to Count 1. [ 116 ] I make no DNA order. [ 117 ] I order pursuant to s. 738 that the Accused provide restitution totalling $295,300 to the complainants payable as follows on a pro-rata basis: • Wilson Lam - $6,500 (2.2%) • David Yee - $5,000 (1.7%) • Theresa Edelman - $190,000 (64.3%)

• Antoniette Smith - $64,800 (22%) • Vickie Hill - $29,000 (9.8%). Restitution shall be payable to the Clerk of the Court within three years of the imposed sentence expiration date. [ 118 ] I make no prohibition order. [ 119 ] I order a fine in lieu of forfeiture in the amount of $295,300 with three years to pay beginning upon expiration of the imposed sentence and four years imprisonment in default of payment of the fine.

The restitution order shall take priority over payment of the fine in lieu of forfeiture, and the fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order. Heard on the 8 th day of December, 2016. Dated at the City of Edmonton, Alberta this 8 th day of December, 2016. L.R.A. Ackerl J.C.Q.B.A. Appearances: Megan Rosborough for the Crown Lawrence Hazlett for the Accused