R. v. Steen, 2018 BCPC 353

Citation: R. v. Steen 2018 BCPC 353 Date: 20181220 File No: 83567-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUSAN STEEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Narraway Counsel for the Defendant: J. Wright Place of Hearing: Nanaimo , B.C. Date of Hearing: October 23, 2018 Date of Judgment: December 20, 2018

The Issue [ 1 ] Ms. Steen has entered a guilty plea to one count of defrauding the Nanaimo Community Hospice Society (“the Society”), contrary to section 380(1) of the Criminal Code . It is my task to sentence her for that offence. [ 2 ] Ms. Narraway, for the Crown, seeks a jail sentence and 18 months’ probation. Mr. Wright, on behalf of Ms. Steen, seeks a suspended sentence and probation. [ 3 ] The determination of a fit sentence for Ms.

Steen requires consideration of a growing body of appellate jurisprudence which, in the absence of “extraordinary circumstances”, mandates a jail sentence for certain offences, although Parliament has not enacted a mandatory minimum sentence for those offences. The Offences [ 4 ] Ms. Steen was the executive director of the Society from December, 2016 to June, 2017. She was provided with a corporate credit card, to be used for business purposes only.

During her six months of employment with the Society, she used the corporate credit card to pay for casino charges, cash advances and salon services totalling $6,106.05, all of which were personal expenses. While investigating Ms. Steen’s thefts, the Society incurred audit and legal fees and related costs totalling $13,018.53. Since her arrest, Ms. Steen has repaid $2,065.02 to the Society. The Offender [ 5 ] Ms. Steen is 71 years of age. She has no criminal record. She completed one year of post-secondary education. She has extensive experience as a manager of non-profit organizations.

She was the executive director of the Central Okanagan and Kelowna Hospice Foundations from 2010 – 2016. [ 6 ] Ms. Steen has a long history of mental health issues. She was diagnosed with Attention Deficit Hyperactivity Disorder at age 11. Her current diagnosis is ADHD, adjustment disorder with depressed mood, tobacco use disorder and (most significantly for the present purpose) severe gambling disorder. She says that she stole from the Society to feed her gambling addiction. [ 7 ] Since her arrest, Ms. Steen has attended counselling for her gambling addiction.

Her counsellor describes her as a highly- motivated patient who has made good progress. She has registered for the voluntary self-exclusion program administered by the British Columbia gambling industry, which is intended to prevent her from entering casinos. She has secured new employment with another non-profit agency. Her new employer is aware of the offence which brings her before the court, and speaks well of her present job performance.

The Victim [ 8 ] The Society describes its mission in the following terms: A team of dedicated care professionals and volunteers offer, free of charge, compassionate care and support to people in the Nanaimo area who are dying, coping with life-threatening illness, caregiving or faced with the grief of losing a loved one. [ 9 ] The annual budget of the Society is approximately $1 million. [ 10 ] The Society describes the impact of Ms. Steen’s theft in the following terms: It was the Board’s decision to hire Ms. Steen.

Therefore, we felt that we seriously disappointed the staff while unknowingly placing them, and the reputation of Hospice, at risk. The Board members also felt guilt and shame. By hiring Ms. Steen, we unknowingly allowed a situation to develop that might cause former Hospice leaders to be disappointed in the current leadership. Why? Because the Hospice legacy, culture and reputation they worked so hard to create and protect could be diminished. * * * Many of the feelings experienced by the Board of Directors also resonated with … senior staff members. Ms.

Steen’s betrayal caused her direct reports to question their own competence and damaged their self-confidence. They began to question if they could believe what they were being told. They lost confidence in their ability to assess people …. * * * Unfortunately, the betrayal described above may be felt by more people than the senior employees and the Board of Directors. Should the situation become public knowledge, we need to be prepared for the reaction of donors, our members, our partners and the community at large. We are honoured to hold the community’s trust.

The community rightfully has an expectation of quality of service because they understand we ae assisting people during the most vulnerable time of their lives. If they lose their trust in us, one serious consequence is a decrease in donations, which could negatively impact our ability to serve our clients. * * * A second serious consequence could be to our trusting relationship with some of our key partners: the Regional Health Authority and the Palliative Care Unit (PCU) at Nanaimo Hospital.

It is because of our experience in training and supervising volunteers, [that] the PCU Medical Director has said in the past that the PCU needs Hospice trained volunteers in order to operate the PCU as wholesomely as possible. Is a Jail Sentence Necessary?

[11] In addressing that question, I am mindful of sections 718.2 (

d) and (

e) of the Criminal Code: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [12] Ms. Narraway relies upon the following passages from R v.

McIvor 1996 ABCA 154; [1996] AJ No. 377; 106 CCC (3d) 285(underlining added): This Court has said on many occasions that, barring truly exceptional circumstances, a first offender convicted of embezzlement must besent to jail. … The breach of a position of trust for personal gain must attract a deterrent sentence and, absent exceptionalcircumstances, some period of incarceration is in order.

There can be no catalogue of "truly exceptional circumstances", however inJohn, Côté J.A. enumerated some possible examples at p. 239: One can always imagine circumstances of grave illness, stress, duress, small amounts of money, encouragement, and other bizarrecircumstances (such as maybe mental problems) which would be exceptional circumstances that would justify a judge in not giving jailin a case of embezzlement or other theft by someone in a position of trust. * * * In our view, an addiction to or an obsession with gambling is neither an exceptional circumstance justifying the imposition of a non-custodial sentence nor a mitigating factor warranting a sentence of less than what would otherwise be fit and proper.

Similarly, neitheraddiction to alcohol nor to drugs is recognized as an exceptional circumstance or a mitigating factor in cases of embezzlement. Thesentencing Judge erred in principle in finding that the Respondent's addiction to gambling constituted an exceptional circumstance. [13] I am not bound to follow and apply statements of principle from the appellate courts of other provinces: R v. Bui 2013 BCCA168; [2013] BCJ No. 901 @ paragraphs 14 – 21. Sentencing principles and practices may vary from province to province: R v.

Vu 2004BCCA 230; [2004] BCJ No. 824; 184 CCC (3d) 545 @ paragraphs 26 – 27. [14] The reader will note that: a. Absent “exceptional circumstances”, McIvor requires sentencing judges to impose a jail sentence for an offence in relation towhich Parliament has not enacted a mandatory minimum sentence. b. The underlying rationale of McIvor is that embezzlement is such a pernicious offence that deterrence must be the primary factorto be considered in sentencing. [15] There is reason to doubt the deterrent effect of jail sentences, particularly in relation to offenders who are addicts. See, forexample, R v.

Preston (BC CA), [1990] BCJ No. 2886; 47 BCLR (2d) 273 and Daniel S. Nagin “Deterrence in theTwenty-First Century” in Crime & Justice (University of Chicago Press) Vol. 42, No. 1 (2013). [16] It is difficult to reconcile McIvor with the result in R v. Samson 2015 YKCA 7; [2015] YJ No. 18, although Ms. Samson’sindigenous ethnicity was clearly an important factor in that case. [17] For those reasons, I would have been reluctant to follow McIvor if it were unsupported by some authority from BritishColumbia. However, that course of action is not open to me because: a. McIvor was followed and applied in R v.

Smith 2015 BCSC 1267; [2015] BCJ No. 1537 @ paragraphs 89 - 94 and in R v. Tiller2016 BCSC 187; [2016] BCJ No. 210. b. In R v. Rutter 2017 BCCA 193; [2017] BCJ 956 @ paragraphs 22 – 24, it was held that the deterrent effect of jail sentences isto be presumed. As a result: (

i) I am obliged to impose a jail sentence in the absence of “exceptional circumstances”; and (ii) a gambling addiction, alone,is not an “exceptional circumstance”. [18] Where the offender suffered from a mental illness at the time of the offence, and the mental illness was a contributing factorwhich contributed to the choice of the offender to engage in criminal behaviour, the mental illness may be regarded as a mitigating factorjustifying a lesser punishment. However, gambling addiction simpliciter is not so regarded.

I refer to the following passage from Smith@ paragraph 94: In the absence of expert evidence on the similarities/differences between mental disorders and behavioural disorders, I would notconclude that they are the same or substantially similar, even if there are commonalities between the two; to the contrary, the applicationof common sense and human experience would suggest that they are not. People with serious mental disorders cannot, through sheerwillpower and resolve, rid themselves of their afflictions. In notable contrast, once Ms.

Smith's crime was discovered and she resolved tostop gambling, she was able to do so without apparent difficulty and with lasting results. If only it were so easy for the mentallydisordered. The evidence before me does not support the inference that Ms. Steen’s gambling addiction is secondary to some other mental disorder,or that her criminal behaviour is the result of any other psychiatric condition. For that reason, following Smith as I am bound to do, Icannot find that her gambling addiction is a mitigating factor in this case. [19] Mr.

Wright referred me to the decision of my colleague, His Honour Judge MacCarthy, in R v. Rondeau 2017 BCPC 120;

[2017] BCJ No. 814, in which he imposed a suspended sentence and a period of probation for a similar offence. At paragraphs 43 – 44,Judge MacCarthy said: Neither Crown nor defence has provided case authorities for consideration by the court. However, reference has been made to somerecent decisions of my judicial colleagues involving some similar, fairly high profile cases reported in the local media.

I have been ableto find some of those as reported decisions and I have also had a chance to consider some recent proclamations and guidance provided byour British Columbia Court of Appeal when dealing with matters of this nature. The cases which I have had the opportunity of looking at are as follows: R. v. Offman, 2017 BCPC 70; [2017] BCJ No. 485, that is adecision of the Honourable Judge Quantz rendered on March 15, 2017. In addition to that, I have the decision of R. v. Houde 2005BCPC 632; [2005] BCJ No. 2905.

The third decision which I have had the opportunity of examining is the Court of Appeal case of R. v.Voong 2015 BCCA 285. It is apparent that neither Smith nor Tiller was drawn to Judge MacCarthy’s attention. For that reason, the second of the exceptions to therule of stare decisis articulated by Justice Wilson in Re Hansard Spruce Mills Ltd (BC SC), [1954] BCJ No. 136;[1954] 4 DLR 590; 13 WWR 285 is applicable; i.e. “… it is demonstrated that some binding authority in case law, or some relevantstatute was not considered …” in Rondeau.

I am satisfied that, if Judge MacCarthy had been referred to Smith and Tiller, he would havereached a different conclusion. [20] In McIvor, the court provided only a very limited exposition of the “exceptional circumstances” which might justify a non-custodial sentence in a case of this kind. However, Justice Bennett provided a fuller exposition of the concept, in a very similar context,in R v. Voong 2015 BCCA 285; [2015] BCJ No. 1335; 325 CCC (3d) 267 @ paragraph 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug sellerwill be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstancesmay include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict,gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done tothe offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that areabove and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to concludethat the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSOsentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [21] I observe that the examples given in McIvor (paragraph 12, above) focus on circumstances existing at or before the time of theoffence, and which might be characterized as factors which contributed to the decision of the offender to commit the offence. Bycontrast, the examples given in Voong focus at least as much on the conduct of the offender after the offence. That seems to me to beinherently reasonable. After all, one primary objective of criminal law is to induce offenders to stop offending.

We ought to offerincentives for people to do the kinds of things described in Voong. [22] Voong sets the bar high for a drug trafficker who wishes to avoid a jail sentence, and Justice Bennett noted that exceptionalcircumstances would be found to exist only in rare cases. However, the standard is not impossible to meet - the Crown appeals againstthe sentences of three of the four Voong respondents were dismissed. [23] I cannot conclude that this is a case of “exceptional circumstances”. Ms. Steen may or may not have “… truly turned her lifearound …”. That remains to be seen.

As a consequence, I am obliged to impose a jail sentence. Nature & Length of the Jail Sentence [24] Where, as here, the Crown proceeds by indictment, the maximum sentence for an offence under

section 380 is 14 years. Forthat reason, a conditional sentence is not available: Criminal Code, s. 742.1(d). Justice Bernard referred to the significance of themaximum sentence for such offences in Smith @ paragraphs 55ff. He imposed a sentence of 18 months’ imprisonment, and said: This sentence takes into account your guilty plea, your sincere remorse, and the fact that your crime was driven by addictive behaviourrather than solely motivated by greed. [25] I am mindful that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances …”: Criminal Code,

section 718.2(b). [26] Ms. Narraway referred me to the decision of my colleague, His Honour Judge Chen, in R v. Judd 2012 BCPC 7; [2012] BCJNo. 69, in which he sentenced Ms. Judd for embezzling a little more than $200,000 from the Richmond Youth Soccer Association. Atparagraph 44, Judge Chen said: I find the circumstances of the Accused's breach of trust in the case at bar to be more serious than frauds perpetrated by employeesagainst their employers. Those victims are business entities. They might be expected to have systems in place to protect them againstemployee theft or fraud.

They would be more likely to be alive to the potential of such a risk. In the case at bar, the organizationsuffering the loss was a volunteer organization, consisting largely of parents and well-meaning and public-spirited citizens. Suchorganizations, I find, would be more vulnerable than a commercial business. The degree of trust reposed in the Accused was, I find,higher than that which would exist between a commercial enterprise and its employees. Judge Chen sentenced Ms. Judd to 2 years’ imprisonment. [27] Ms. Narraway also referred me to: a. R v.

Dunkers 2014 BCSC 1316; [2014] BCJ No. 1953, in which Justice Gaul sentenced Ms. Dunkers to 5 years’ imprisonment

for embezzling a little over $200,000 from a charitable society which employed her as its bookkeeper. b. R v. McKinnon 2005 ABQB 8; 2005 ABCA 8 , [2005] AJ No. 12, in which the Court of Appeal set aside a conditionalsentence for a bookkeeper with a lengthy record of offences of dishonesty and substituted a custodial sentence of one year forembezzling about $61,000 from a private-sector employer. [28] Having regard to the relatively small amount stolen by Ms. Steen, I think that a fit sentence in this case would be 4 months’imprisonment. Probation [29] Counsel agree that a period of probation is appropriate.

I impose a period of 2 years’ probation on the following conditions. Ms.

Steen must: a. keep the peace and be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer within 96 hours of her release from custody and report thereafter as and when directed byher probation officer; c. provide her probation officer with her residential address and not change that address without prior notice to her probationofficer; d. not be found on the premises of any licensed casino; e. when applying for employment, provide a copy of these reasons for judgment to each prospective employer to whom sheapplies; f. not apply for or accept any volunteer position with any charitable or non-profit society unless she has first provided a copy ofthese reasons for judgment to the society; g. attend, participate in and successfully complete any counselling program to which she is referred by her probation officer.

Restitution [30] There will also be a restitution order in favour of the Society, pursuant to

section 738 of the Criminal Code, in the amount of$17,059.56. December 20, 2018 ________________________ T. Gouge, PCJ