R. v. Jacobs, 2021 BCPC 362

Citation: R. v. Jacobs 2021 BCPC 362 Date: 20211105 File No: 66529 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. KRISANDRA LENORE JACOBS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: S. Hulko Counsel for the Defendant: J. Turner Place of Hearing: North Vancouver , B.C. Dates of Hearing: Mar 17, 2020; Feb 22, 24-26, Mar 1- 3, Apr 9 , May 11, Jun 3, and Sep 20, 2021 Date of Judgment: November 5, 2021 INTRODUCTION

INTRODUCTION [1] Ms. Jacobs is charged by indictment with two offences alleged to have been committed from April 1, 2011 to May 2, 2014, inNorth Vancouver. The first charge alleges that she did by deceit, falsehood, or other fraudulent means defraud the Squamish Nation ofmonies of a value in excess of $5,000, contrary to s. 380(1)(

a) of the Criminal Code. The second charge alleges that she committed theftof monies, the property of the Squamish Nation, of a value in excess of $5,000, contrary to s. 334(

a) of the Criminal Code. [2] Ms. Jacobs is presumed innocent. The Crown bears the evidentiary burden to prove beyond a reasonable doubt that shecommitted the charged offences. [3] The Crown called nine witnesses and filed many hundreds of pages of bank records and business records along with Admissionspursuant to

section 655 of the Criminal Code. Ms. Jacobs did not call evidence. THE PARTIES' POSITIONS [4] The Crown says that when all of the evidence tendered is considered, it proves that Ms. Jacobs committed both offences. Crowncounsel says that the testimony of the witnesses shows that Ms. Jacobs was in an unassailable position of power within the structure ofthe Squamish Nation community at the relevant time, such that she could help herself to its money without any oversight and that she didso for over three years in a total amount of approximately $1 million. [5] The Crown says that emails from Ms.

Jacobs in which she requested cheques, along with banking records, (all in evidence),show a pattern of Ms. Jacobs obtaining cheques in her name in the amount of thousands of dollars and then cashing the cheques, ordepositing them into personal bank accounts belonging to her.

The Crown says that a review of those personal accounts shows that Ms.Jacobs used the Squamish Nation's money to pay her personal bills and that, as well, if one looks at her legitimate income and herexpenses, there is a shortfall of hundreds of thousands of dollars and that this is further proof that the money she obtained from theSquamish Nation for the stated purpose of supporting members in emergent circumstances was diverted. [6] Ms. Jacobs says that the Crown has failed to prove that she either defrauded or stole from the Squamish Nation.

While she hasagreed that the banking documents and business records accurately reflect transactions made by her, she says that they do not prove thatshe used the monies received by her by way of the Squamish Nation's cheques for purposes other than for the Nation’s emergencypurposes she claimed. She points out that there is no direct eyewitness evidence of her committing fraud or stealing from the SquamishNation and says that the Crown's case is a circumstantial one and that it fails to prove the offences alleged. [7] With regard to the structure of the community in which the transactions occurred, Ms.

Jacobs says that the evidence does notprove that she was in a position above accountability and the required transparency in relation to her financial dealings. She says that thestrength of personality of the Nation's Director of Finance, Audrey Larsen, was evident when Ms. Larsen testified and that this supportsMs. Jacobs’ position that Ms. Larsen's inability to secure documentary backup from Ms. Jacobs, if really required, is not believable.

Ms.Jacobs points to the evidence of a number of witnesses who testified to her good work in the community and to her long hours, assupporting her position that, while the Crown has proved that she received the cheques and negotiated them, it has not proved that shehas done so deceptively or that she used the monies for any purpose other than their stated intended purpose. [8] I will briefly discuss the law relating to fraud, theft, and circumstantial evidence and then turn to the evidence. While I may notrefer to all of the evidence in these reasons, I have considered it all in arriving at my decision.

THE LAW [9] With regard to the law in relation to fraud, s. 380(1)(

a) of the Criminal Code sets out the offence of fraud as follows: Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act,defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter ofthe offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars…. [10] In R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, the court discussed the mental element and the acts required tomake out a charge of fraud at paragraph 24: [24] Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, orsome other dishonest act.

The prohibited consequence is depriving another of what is or should be his, which may, as we have seen,consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one wasundertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving anotherof property or putting that property at risk. If this is shown, the crime is complete…. [11] In R. v. Zlatic, (SCC), [1993] 2 S.C.R. 29, the court there again considered the elements of fraud.

At paragraph32, the court stated: [32] The fundamental question in determining the actus reus of fraud within the third head of the offence of fraud is whether themeans to the alleged fraud can properly be stigmatized as dishonest: Olan, supra. In determining this, one applies a standard of thereasonable person. Would the reasonable person stigmatize what was done as dishonest? Dishonesty is, of course, difficult to definewith precision. It does, however, connote an underhanded design which has the effect, or which engenders the risk, of depriving othersof what is theirs….

Continuing on: The dishonesty of "other fraudulent means" has, at its heart, the wrongful use of something in which another person has an interest, in

such a manner that this other's interest is extinguished or put at risk. A use is "wrongful" in this context if it constitutes conduct whichreasonable decent [people] would consider dishonest and unscrupulous. [12] At paragraph 33, the court observed in Zlatic that cases which: [33]… have considered instances of "other fraudulent means" by unauthorized diversion of funds provide concrete examples of theapplication of these principles…. [See also: paragraphs 33 through 35]. [13] Turning to the final decision discussing fraud that I will refer to here, in R. v.

Stephenson, 2006 BCCA 25, the court thereapproved a trial judge's explanation of the meaning of the words "deceit, falsehood, or other fraudulent means", (identified as the thirdingredient in the offence of fraud), at paragraph 102, in part: [102]…Falsehood was defined as a “deliberate lie”. Deceit was defined as “inducing a person to believe something is true where thedeceiver knows that it is false”.

The phrase “other fraudulent means” was explained as conduct that is neither a falsehood nor deceitful,but “can be objectively considered to be dishonest” because an average, reasonable person would see it as being “at variance withstraightforward or honourable dealings”. [14] Turning to paragraph 103 of Stephenson: [103] As to the fourth ingredient, the trial judge said this: “The word “defraud” means to deprive somebody dishonestly of something”. Deprivation “means to place the economic interests of another person at risk”.

What you “must now decide is whether in fact thisconduct [the deceit, falsehood or other fraudulent means] resulted in a defrauding occurring”. [15] Justice Rowles summed up at paragraph 106 of Stephenson: [106]…From the instructions given, the jury would have understood it could not convict the appellant of fraud unless satisfied beyond areasonable doubt that: (1) he engaged in deceit, falsehood or objectively dishonourable conduct; (2) the things he did deprived Moranand Anderson of property or money; and (3) he did these things aware of the circumstances that made them dishonourable and knowingthat his conduct could cause prejudice to Moran and Anderson.

In making the latter determination, the jury was entitled, but not requiredto draw the common sense inference that persons normally intend the natural and probable consequences of their acts. [16] The court found the trial judge's explanation to be consistent with Théroux. [17] Turning to theft, s. 334(

a) of the Criminal Code provides as follows: s. 334 Except where otherwise provided by law, every one who commits theft (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is atestamentary instrument or the value of what is stolen exceeds five thousand dollars. [18]

Section 322 of the Code defines "theft" in part as follows: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to hisuse or to the use of another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of hisproperty or interest in it …. [19] Turning to circumstantial evidence, in R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000, the court consideredproof of the criminal standard by means of circumstantial evidence in relation to a number of child pornography charges.

JusticeCromwell stated at paragraph 37: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. [20] Continuing on with Justice Cromwell's decision: …I agree with the appellant that the Crown thus may need to negative these reasonable [and he emphasizes "reasonable"] possibilities,but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent withthe innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “otherreasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [21] Continuing on at paragraph 38: Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [22] I note that Villaroman was recently applied by the B.C.

Court of Appeal in the context of a fraud prosecution in R. v. Louis, 2020BCCA 219.

THE ISSUES [ 23 ] The issues to be determined here are whether the evidence led by the Crown proves beyond a reasonable doubt that Ms. Jacobs committed either or both of the charged offences. THE WITNESSES’ EVIDENCE [ 24 ] The Crown called nine witnesses at trial. Four witnesses worked in the Squamish Nation's Financial Department during the offence period. [ 25 ] Desiree George, (formerly known as Desiree Nahanee), and Tannis Louie worked in the accounts payable department as clerks.

They had no authority to approve cheques, although their duties included reviewing cheque requisitions for informational irregularities and preparing the requested cheques and, in the normal course, forwarding such cheques along with the requisition to one of the Finance Department managers, or its department head, for approval. [ 26 ] Ms. George and Ms. Louie are both friends of Ms. Jacobs and have known her for many years.

They both testified to receiving emails from her over the three years in which she requested Squamish Nation cheques be prepared and issued, payable to her personally, and they both testified to issuing the requested cheques, including on weekends when there was no one in the finance office to approve the cheque. The emails from Ms. Jacobs were accepted as cheque requisitions. [ 27 ] Donalene Rapada worked in the Finance Department at the Squamish Nation for 28 years. She had been a summer student there in the early '90s and continued working throughout.

She secured her CPA designation and, from 2007, she was in the position of "accounting manager service delivery" providing accounting support for all service departments of the Squamish Nation. She reported to the Finance Department head, Audrey Larsen. [ 28 ] Ms. Rapada, the third witness who worked at the Finance Department throughout the offence period, explained that her role included meeting with the Squamish Nation’s department heads to review their budgets, both projected and actual.

She recalled there being fourteen departments, including the Finance Department; other departments included Child and Family Services, Housing, Recreation, Council and the Communications and Band Manager's Department. She described this latter department as being responsible for communications programs, funerals, and events and it administered the “Band Member Emergency Fund”. She testified that Ms. Jacobs was the department head of this department. [ 29 ] She explained that the Finance Department supports all the departments regarding budgeting.

Every two months, it was her practice to meet with department heads and review budgeting issues, including where there were over or underages or if there were discrepancies with revenue. [ 30 ] With regard to cheque production, she explained that the departments would send cheque requisitions to the accounts payable

section of the Finance Department. If reimbursement was required, the cheque requisition would be accompanied by an invoice evidencing the expenditure already incurred. If the cheque requisition was for an advance payment or did not have adequate supporting documentation, questions would be emailed from the Department of Finance to the requesting department. If adequate information was provided, the cheque would be issued. If not, the requisition would be put aside. Once sufficient information was obtained, the cheque would be printed and the cheque and requisition would be given to Ms.

Larsen to approve the cheque. That was the normal course. [ 31 ] Ms. Rapada was a careful, impressive witness. It was obvious with her detailed description of steps taken that she was well familiar with the steps in place in the Finance Department to secure oversight and financial accountability and transparency of the Squamish Nation during the relevant timeframe. She identified Ms. Jacobs as the department head of the Communications Department and the person with whom she would meet to go over that department's budget.

The department's programs included expenses for the Band Manager such as elders' hydro expenses, funeral expenses, and expenses related to communication. [ 32 ] The department also operated an emergency fund in the Band Manager's office program. The purpose of the emergency fund, according to Ms. Rapada, was to provide a band member in need of financial assistance where there was a gap in other services.

She described the process for obtaining band member emergency funds by the band member who needed financial assistance as involving their contacting that office; speaking with an intake person there; discussing the request, and then a list of people who had met with the intake workers would be provided and a file created. This would be forwarded to Ms. Jacobs, who would then review the request and approve the request or a portion of it. Again, this was the usual process. [ 33 ] However, she described another process evolving whereby Ms.

Jacobs would place a cheque requisition into the Department of Finance, by email, to the accounts payable department requesting money to assist band members in emergencies such that the cheque was made out to Ms. Jacobs directly. She recalled seeing notes in the emails referencing Glen Newman. She said that sometimes the cheques would be payable to Mr. Newman and to Ms. Jacobs. The emails were never sent to Ms. Rapata directly.

She recalled them going straight to the accounts payable clerks. [ 34 ] She testified that the cheque requisitions by emails from the department head met the standards required for documentary backup. [ 35 ] Ms. Jacobs, being the department head of the department in charge of the band member emergency fund, was the ‘check and balance’ for the issuance of the requested cheques. [ 36 ] Ms.

Rapata described, however, recording the cheques as “advance on expenses,” along with a note indicating the requirement for additional information, such as -- when the advance was for a band member emergency -- details with regard to who the money went to and for what purpose. In normal circumstances, once that type of information was obtained, the journal entry would be cleared out and the backup was no longer required. [ 37 ] Ms. Rapata also testified to becoming aware that accounts payable staff at the Finance Department were coming into the office

for cheques for Ms. Jacobs, for Mr. Newman, or for other purposes, when the office was closed. Her concern about this practice arose from the fact that the cheques were in the hands of the person who requested them before they were approved. She recalled speaking to Ms. Larsen about her concern that a different department head was directing her staff to work on weekends, as well. It was her understanding that Ms. Jacobs was doing that directing. Ms. Rapata said that nothing happened after she spoke with Ms.

Larsen about her concerns. [ 38 ] She explained that the source of funds in the emergency fund was money generated by the band, not external monies from government. [ 39 ] Ms. Rapata testified that in early 2013, Walter Schneider was hired by the Nation and became involved in the band's financial management. After a meeting between Mr. Schneider and Ms. Larsen, Ms. Larsen directed Ms. Rapada to set up meetings with Ms. Jacobs to obtain the required documentation setting out who had received the funds from the cheques requested by Ms. Jacobs and issued to her. [ 40 ] Ms.

Rapada testified that she did set up meetings with Ms. Jacobs. She testified that at their first meeting, she advised Ms. Jacobs of the need for outstanding information backing up the cheques issued to her and that she set up another meeting for Ms. Jacobs to bring that documentation in. At the second meeting, according to Ms. Rapada, Ms. Jacobs did provide some documentation which she reviewed. She recalled one of them being okay, but had questions about others. She explained the questions to Ms. Jacobs and explained her need for further documentation. [ 41 ] Ms. Rapada testified that Ms.

Jacobs never came back after that. She testified that she kept setting up meetings with Ms. Jacobs and described Ms. Jacobs as being "good" at the beginning, letting her know in advance that she would not be making a given meeting, but that eventually Ms. Jacobs stopped giving notice that she was not going to come: She just did not show up. [ 42 ] According to Ms. Rapada, Mr. Schneider directed that Ms. Jacobs was not to receive any further payment until she provided the outstanding documentation. [ 43 ] The fourth witness in the Finance Department throughout the offence period was Audrey Larsen.

She was the department head of Finance at the Squamish Nation. She worked there from 1992 to 2018. She was a qualified chartered accountant, obtaining that designation in 1986. She was also an impressive witness. She testified to efforts she made to place some oversight on the cheques being issued to Ms. Jacobs and testified to those efforts being thwarted. She testified to requesting documents herself from Ms. Jacobs. [ 44 ] Ms.

Larsen described the organizational structure of the Nation as including about fourteen departments set up to provide services to the Nation's members and there also being a Band Council. She testified that Ms. Jacobs was not only the head of the Communications Department, but also a co-chair of the Council. In the result, while, as Communications Department head, Ms. Jacobs would normally be required to report to Ms. Larsen as Finance Department head, as Council co-chair, Ms. Jacobs' authority within the band was higher than Ms. Larsen's. As co-chair, according to Ms. Larsen, Ms. Jacobs could have Ms.

Larsen fired. [ 45 ] The combined testimony of these witnesses, augmented by the emails and cheques and Admissions in evidence, show that Ms. Jacobs emailed her two friends in the Finance Department accounts payable office hundreds of times in each of 2011, 2012 and 2013 and requested and obtained cheques payable to her without the usual oversight in place by the Squamish Nation Finance Department. [ 46 ] Ms. Larsen and Ms. Rapada both testified to the manner of cheque requests by Ms.

Jacobs during this time as unusual and of concern to them in their roles as overseers of the Nation's finances, both in its frequency and in the lack of supporting documentation provided to support the authenticity of the requests. They both described efforts to obtain backup information from Ms. Jacobs and her ignoring their requests and continuing on in her pattern of obtaining cheques until the arrival of Mr. Schneider. [ 47 ] Mr. Schneider is the last financial witness. He was hired by the Nation in early 2013 as Executive Operating Officer. Mr.

Schneider holds an MBA and a CPA and a diploma in Financial Management. While he is a member of the Squamish Nation, he has never lived on the reserve. His evidence about the power structure there echoed Ms. Larsen's. [ 48 ] One of the first steps he took upon assuming the role was to review the general ledger of the Finance Department of the Squamish Nation. He saw Ms. Jacobs was one of the top 50 recipients of Squamish Nation monies. He determined to meet with every department head. He met with them all, other than Ms. Jacobs. He could not recall if she did not show up or cancelled the meeting.

So he met with her staff. [ 49 ] He was interested in not only its budget, but also in the Communications Department's various internal controls. In speaking with the staff members of Ms. Jacobs' department, they spoke of the process described by Ms. Rapada with regard to band member emergency funding, of intakes and requests and approvals. They did not appear to be aware of what Mr. Schneider ended up calling the "shadow process" which was Ms. Jacobs’ directing emails to accounts payable; requesting cheques payable to her in her personal capacity. [ 50 ] Mr. Schneider's evidence mirrored the testimony of Ms.

Rapada and Ms. Larsen: He described in September of 2013 beginning to facilitate meetings with Finance, through Ms. Rapada, with Ms. Jacobs. The goal was to get Ms. Jacobs to provide documentation regarding which member received funds secured by her and for what purpose. He testified that Ms. Jacobs refused to provide the information citing confidentiality concerns. He suggested that she provided initials and amounts rather than full names and testified that Ms. Jacobs agreed to provide some information. He testified that Ms.

Rapada was tasked with following up on that requested information, but he was advised that Ms. Jacobs never provided the requested information. It is clear that he never received any. [ 51 ] Mr. Schneider's role, given his conclusions that Ms. Jacobs was accessing Nation funds inappropriately, was to advise Council of his concerns. However, as mentioned, Ms. Jacobs was co-chair on Council and, in that role, his boss. He spoke with her co-chair, Byron Joseph, who deferred the issue to Ms. Jacobs. With regard to the Squamish Nation structure, Mr.

Schneider described it as top governing, headed by the Chief and Council. He explained that at the time the Council functioned as a policy board. He reported to the Chief and Council as a collective. On a day-to-day basis, he reported to the co-chairs of Council and Ms. Jacobs was one of them. All of

the department heads reported directly to him. [ 52 ] Mr. Schneider's concerns about the cheques going to Ms. Jacobs were similar to those held by Ms. Larsen and Ms. Rapada for years by the time he arrived on the scene. He began an investigation with the assistance of the head of the Squamish Nation's Human Resources Department, who also testified. Ultimately, an outside lawyer was retained by the Band Council to conduct the investigation along with Mr. Schneider and Human Resources. [ 53 ] Ms. Johnston-Hall, the HR director, testified that if Ms.

Jacobs had not occupied the position of co-chair on Council, the investigation would have remained in-house, conducted by the Human Resources Department in conjunction with the affected department, which in this case was Finance. [ 54 ] The result of the investigation was a report which was presented to the Band Council. With their support, Mr. Schneider took the report to the RCMP and reported the alleged crimes underpinning the charges. [ 55 ] The complicating issue of Ms. Jacobs occupying the position of both co-chair of Council and director/head of Communications was made clear by the testimony of Ms.

Johnston-Hall. She had been director of Human Resources since 2009 at the Squamish Nation. She testified that Mr. Schneider approached her in 2014, concerned about payments being made to Ms. Jacobs and Mr. Newman. She shared his concerns, noting the high value and the fact that many of the transactions ended in a straight “zero”. Normally, as head of HR, she would have led the investigation into the employee in any given Squamish Nation department. Because of Ms.

Jacobs' role as co- chair of Council, a different course had to be pursued, involving Council. [ 56 ] As a result of the investigation authorized by Council, ultimately, Ms. Jacobs was suspended and eventually terminated. [ 57 ] Corporal Smith of the North Vancouver RCMP received the complaint from Mr. Schneider and conducted the police investigation. He is the officer involved in obtaining production orders used to secure much of the documentary evidence filed in this trial. [ 58 ] The final witness was Glen Newman.

He was the elected band member throughout the offence period and head of the Communications Department along with Ms. Jacobs. Mr. Newman was impressive in his own right. He has been a social worker since the 1960’s, working with members of the Squamish Nation, including off-reserve members living in areas including the Downtown Eastside and in the United States. His commitment to the well-being of band members was not questioned. That said, the evidence showed that while Ms. Jacobs was obtaining cheques for herself, she was also obtaining cheques for Mr. Newman. At one point, as explored by Ms.

Jacobs' counsel, he had been under consideration of wrongdoing in relation to those cheques, as well. [ 59 ] Mr. Newman testified that Ms. Jacobs' work meant that she was on-call for the Nation, in her capacity both as head of the Communications Department and as co-chair “24/7”. He testified that she had been elected to Council in 1997 or 1998. He testified that he asked her to come to his department to help with the band management budget; the administration was draining him.

He made her the department head administrator, assigning her duties which included her overseeing the department's budget, so that he could be more hands-on in the community. This occurred in or about 1998. [ 60 ] He recalled that in 2008 or 2009, Ms. Jacobs asked if it would be easier for him if, when he was in the community, he had cash on hand and if she made cheques out for him. He agreed with that process. He testified that many people who he dealt with in the community do not have bank accounts and that cash is easier for them to manage. [ 61 ] Mr.

Newman testified that he had a log in which he kept monthly entries with regard to the name of people to whom he gave emergency funds, the purpose, and the cash amount. He testified that all of his memos and financial materials were done manually and that he submitted about forty (40) pages of these types of documents during the investigation. He testified that he understood that such a log was to maintain accountability and also would obviate any risk of people double-dipping.

He testified that he did not mind writing the recipient's name in the log and that he did not mind the Finance director or auditor seeing the log. To maintain confidentiality, he kept his logs locked in a cabinet in his office. [ 62 ] Mr. Newman testified that Ms. Jacobs handled all of the cheques and that he did not requisition them. He testified that she was basically responsible for deciding the amount of his cheques. He testified that he had no involvement in the cheque requisitions made by Ms. Jacobs. She had full discretion in that regard. Mr.

Newman testified that he delegated all budgeting responsibilities to Ms. Jacobs in relation to the Communications Department, that he was not good with computers, and he trusted her completely. THE ADMISSIONS AND DOCUMENTARY EVIDENCE [ 63 ] The Admissions filed in evidence prove that from April, 2011 to May, 2014, Ms. Jacobs requested and received 422 cheques drawn on the Squamish Nation's Bank of Montreal accounts. Attached to the Admissions as exhibits are copies of the cheques along with the emails sent by Ms. Jacobs to Ms. George or Ms. Louie. While Ms.

George testified that she recalled the requisitions being copied to either Ms. Rapada or Ms. Larsen, they were not. They are all sent by Ms. Jacobs to Ms. George or Ms. Louie only. Ms. Jacobs never included anyone with approval authority at Finance in her cheque request process. [ 64 ] Many of the cheque requisitions were sent by Ms. Jacobs on weekend days when, I find as a fact, Ms. Jacobs knew that the Finance Department was closed and thus none of the managers or department head would be present for the cheque approval process. This step is consistent with the powers she wielded, described by Ms. Larsen, Ms.

Rapada and Mr. Schneider: Ms. Jacobs directed employees of another department to come into their closed office on weekends and prepare cheques for her without consultation of their department head. [ 65 ] While it is clear that emergencies requiring funds could occur outside of office hours, that explanatory cloak falls apart when the entirety of the evidence here is considered. As discussed below, the pattern of Ms. Jacobs using cashed and deposited cheques for her purposes undercuts the believability of legitimate emergency needs of the band members being the reason for Ms. Jacobs requesting the funds.

[ 66 ] All of the cheque requisitions or emails from Ms. Jacobs make reference to "Glen" who I find to be her intended reference to Glen Newman. I find as a fact that, in light of Mr. Newman's unchallenged testimony and in the circumstances of what I find to be a fraudulent scheme, he did not approve the specific requests described by Ms. Jacobs or know of the specific requests. His evidence, which I accept as it was not challenged or eroded in any way in cross-examination, is that he was uninvolved in the cheque requisition process having delegated the financial matters to Ms.

Jacobs. [ 67 ] Turning to the financial institution documents attached to the filed Admissions, no forensic report or such evidence was tendered in this case. Ultimately, the Crown submitted a chart which provided some assistance in assessing the evidentiary significance of the voluminous documentation. [ 68 ] Overall, the banking records show, and Ms. Jacobs has admitted in the formal Admission filed, that she deposited or cashed all 422 cheques that she received and she did so shortly after receiving them.

They also show that, upon receiving the money from a given cashed cheque, she frequently made a cash deposit in a similar amount into one of her personal accounts at the TD Bank. [ 69 ] With regard to the TD Bank accounts in evidence, it is significant that on October 28, 2010, just several months before Ms. Larsen observed a troubling trend in payments going to Ms. Jacobs personally, Ms. Jacobs went to the TD Bank and took steps to open up two new accounts. These two accounts, which ended in “645” and “691”, were in her name only and were opened on October 29, 2010. [ 70 ] Ms.

Jacobs had held a joint account at the TD Bank since 2007, sharing it with Russell Thomas. That joint account ended in “767”. [ 71 ] My review of the financial records shows that Ms. Jacobs cashed 205 of the cheques she received from the Squamish Nation at the Bank of Montreal over the years charged. Almost every cheque exceeds $1,000. The obvious result of that is that she had in her hands thousands and thousands of dollars of the Nation's money intended for emergency uses with no oversight at all. [ 72 ] Over the years, she deposited eighty three (83) of the cheques into her TD joint account number 767.

She deposited thirty four (34) of the cheques into her new solo account number 645. [ 73 ] Turning to the cheques deposited to the TD accounts, I will discuss several examples of the use to which the evidence proves Ms. Jacobs put the negotiated cheques she received from the Squamish Nation. [ 74 ] On April 2, 2011, Ms.

Jacobs requested two cheques by email stating that, "Glen's authorization approval for this use with families from Walmart and Superstore, $1,800”, and “Glen's authorization approval petty cash for work with Glen, $1,500." She obtained the two cheques, one in the amount of $1,800 and one in the amount of $1,500 and she deposited them into her joint account (#767) the same day, April the 2 nd . On April the 6 th , she transferred $3,600 from that joint account to her solo account number 645. [ 75 ] Jumping a number of months to provide another example of the continued pattern, on July 29, 2011, Ms.

Jacobs deposited a Squamish Nation cheque payable to her in the amount of $2,500 to the joint account #767. In the email she authored which generated the cheque, she had written, "Per Glen's approval BME funds for B.C. Day long week, July 29 through August 1, 2011." The next transactions in the joint account #767 immediately following the deposit are a $300 payment to Bell Mobility, a $150 payment to Bell Canada, and a $350 payment to Canadian Tire Mastercard and a $1,000 Visa payment. [ 76 ] An example from 2012 is seen on July 17, 2012, when Ms.

Jacobs deposited a Squamish Nation cheque in the amount of $2,000 into the joint #767 TD account and then transferred $1,500 to her solo TD account number 645 and $500 to an unknown account. In the email requisition sent by her on July 14, 2012, to Ms. George, which underpinned the generation of that cheque, Ms. Jacobs wrote, "Can you please process, approved by Glen, cheque to payable K. Jacobs, $2,000 petty cash fund." [ 77 ] One example from 2013 will suffice. On January 17, 2013, she deposited a cheque in the amount of $2,800 into the joint TD account #767. Her email requisition to Ms.

Nahanee (George) included, "Please process before 12:00 p.m.

Glen met with me in person and approved $2,800 funds for Walmart, Superstore, and Safeway gift cards." (I pause to note that if the funds were spent on such purchases, receipts would have been easy to provide without any breach of confidentiality.) There are five further transactions in the joint account following the January 17 deposit: a $700 credit card payment, a $100 FortisBC gas payment, a $100 BC Hydro payment, $400 to a Mastercard, $800 cash withdrawal, for a net debiting of the account of $2,100 following the $2,800 deposit [ 78 ] My review of the bank records of the joint TD account #767 shows that Ms.

Jacobs deposited Squamish Nation cheques totalling approximately $151,000 over the course of the charged period.

She deposited $60,549 by way of Squamish Nation cheques into the solo account at Toronto Dominion Bank number 645 over the charged period. [ 79 ] Turning to cash deposits: In addition to depositing Squamish Nation cheques into her two personal TD Bank accounts, a review of the bank account evidence proves a pattern of her frequently depositing thousands of dollars of cash (which I find she received at the Bank of Montreal when she cashed Squamish Nation cheques) into those TD personal accounts. [ 80 ] An example of this is demonstrated by the documents relating to events on November 3, 2011.

On that date, she requisitioned and received a Squamish Nation cheque in the amount of $3,500 and another in the amount of $2,500. That day, she made two deposits into her joint account #767 at TD, one in the amount of $3,500 and the other in the amount of $1,500. [ 81 ] Jumping to 2012, on Saturday, November 10, 2012, Ms. Jacobs requisitioned and received two cheques, one in the amount of $4,000 and one in the amount of $3,000.

Three days later, on November 13, she deposited $4,000 into the joint account #767 and obtained a bank draft in the amount of $875, and transferred $2,000 to the solo account #645. [ 82 ] With regard to inter-account transfers, in addition to functioning as a depository of Squamish Nation cheques, she used the solo account #645 opened in late October, 2010 to transfer funds from and to the joint account #767: Over the period charged, she transferred about $223,000 from the joint account to her solo account and transferred just under $123,000 the other way.

[ 83 ] With regard to the weekend requests testified about by Ms. Larsen and Ms. Rapada, in particular, in 2011 Ms. Jacobs authored thirteen (13) cheque requisitions, requesting cheques payable to her on the weekend; these sometimes included multiple cheques, and amounted to requests for tens of thousands of dollars with the certain knowledge that they would not be scrutinized in any way. These records corroborated Ms. Larsen and Ms. Rapada's testimony about Ms.

Jacobs' practice to engage the Finance Department employees to create cheques for her, out of hours, and beyond their scope of review. [ 84 ] I note that on Sunday, April 24, 2011 Ms. Jacobs requested a cheque in the amount of $3,000, which was cashed on April 25. On April 25, a $3,000 cash deposit was made to joint account #767. [ 85 ] Turning to the lifestyle evidence: the Crown's documentary analysis of Ms. Jacobs' and Mr. Thomas’ income and other sources of non-band emergency funds amount to just over $500,000 for the period, April 1, 2011, to May 1, 2014.

The total spending supported by a review of bank documents and business invoices and other business records total over $880,000 for the same time period. DISCUSSION [ 86 ] As set out above, to rebut a presumption of innocence in relation to the fraud charge, the Crown must prove beyond a reasonable doubt that Ms. Jacobs committed the prohibited act, be it

an act of deceit, falsehood, or some other fraudulent means, and that the prohibited act caused deprivation which could be actual loss or placing the victim's pecuniary interest at risk. Having considered all of the evidence, I have no doubt that Ms.

Jacobs committed deceitful acts and made falsehoods which caused deprivation to the Squamish Nation and that she knew and intended to take the deceitful steps and make the false statements knowing that they could cause the Squamish Nation deprivation in the sense of depriving it of its property or putting that property at risk. [ 87 ] Her creating the TD account 645 in late October, 2010, (into which she deposited and transferred funds from the procured cheques,) is evidence of planning and knowledge of the deprivation she would be exposing the Squamish Nation to when she implemented her plan, which I find as a fact she had, to divert funds away from a proper Nation use to her own use.

Her repeated assertion, made hundreds of times, that funds were required by her for band member emergency purposes when she knew that they would be cashed by her and deposited into her personal accounts for other purposes constitutes evidence of fraud. [ 88 ] There is no doubt on the evidence that the means of her fraud can properly be stigmatized as dishonest: She crafted a scheme whereby, as a result of her powerful position as co-chair, she was beyond the oversight of even the head of the Finance Department.

She had the power to direct the department staff to do her bidding and come to the closed finance office and provide her with cheques on weekends. [ 89 ] I have no difficulty in finding that Ms. Larsen, while head of the Finance Department and clearly committed to professionally administering proper control on the Squamish Nation's funds, was rendered powerless in overseeing Ms. Jacobs' spending activities, given the power structure at the time. Ms. Larsen's frustration and dissatisfaction with the situation was palpable while she testified, even these many years later. [ 90 ] Ms.

Jacobs' excuse of confidentiality requirements as justifying her not providing backup documents when requested by the Finance Department officials is not believable. As noted above, Mr. Newman had no problem at all providing such details. I find that Ms. Jacobs' contention that she wanted to preserve the confidentiality of users of the band manager's emergency fund was a lie in an effort to prevent her false and dishonest scheme from being discovered. [ 91 ] She also falsely and deceitfully claimed in her emails to Ms. George and Ms. Louie that Mr.

Newman had knowledge of her specific requests for cheques in her name. As noted above, I find that he did not. He trusted her with the financial conduct of the department. Her use of his name on her cheque requisitions was a false statement made by her by which she deceptively sought to lend authenticity to her relentless requests for the band's money.

CONCLUSION [ 92 ] With regard to the funds that she deposited into the account that she held jointly with another, given that he had signing authority on that account which did not require her co-signature, the monies deposited there were immediately at risk. [ 93 ] In relation to the valuation of the other monies defrauded or fraudulently taken from the Squamish Nation, the Crown has proved beyond doubt that it exceeds $5,000 and I find Ms. Jacobs guilty of Count 1 on the indictment. [ 94 ] With regard to the charge of theft, the evidence proves beyond any reasonable doubt that Ms.

Jacobs deprived absolutely the Squamish Nation of many thousands of dollars over $5,000 during the period charged. As described above, she obtained the Nation's money under the guise of one serving a legitimate purpose and promptly used it for herself. She is guilty of that offence, as well. [ 95 ] Having heard submissions with regard to rule against multiple convictions, there will be a conditional stay of proceedings in relation to Count 2. ____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia