R. v. Copeman, 2017 BCSC 1360

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Copeman, 2017 BCSC 1360 Date: 20170630 Docket: 163192-2 Registry: Victoria Regina v. David Lawrence Copeman Before: The Honourable Mr. Justice Bracken Oral Reasons for Sentence Counsel for the Crown: I. C. Hay Counsel for the Accused: J.D.A. Watt Place and Date of Trial/Hearing: Victoria, B.C. June 19 and 20, 2017 Place and Date of Judgment: Victoria, B.C. June 30, 2017 [ 1 ] THE COURT: The accused has pled guilty to the offence of fraud over $5,000. The facts are that the accused started a new business with an individual by the name of Mr. Cooper. Mr.

Cooper and Mr. Copeman formed a business to do construction projects. The plan was that they would start the business and build it. Mr. Copeman's responsibility was to do the internal management and deal with financial and accounting issues, while Mr. Cooper went out and worked in the field to generate business opportunities and to see that the business opportunities that were created were achieved. [ 2 ] By 2007, a couple of years after the business had been formed, the company, D2 Contracting Ltd., had begun to thrive. It was financially successful and Mr.

Cooper then left outside employment that he held to allow some financial security while the business was built and engaged in the business full time. The draws or salaries were set and the success of the company was rapid. [ 3 ] The two individuals worked together. Obviously, Mr. Cooper trusted Mr. Copeman, and he counted on him to fulfil the responsibilities that he had with respect to D2 Contracting as Mr. Cooper did with his responsibilities. [ 4 ] In December 2008, the first sign of difficulty emerged when one of the employees advised Mr.

Cooper that his cheque had been returned from the bank marked not sufficient funds. Mr. Cooper spoke to Mr. Copeman about it and was reassured that there was a slight delay in the deposit of a cheque and that that was a simple one-time problem that was of no serious consequence. Mr. Cooper accepted that and went back to work. [ 5 ] A few months later, at the end of March in 2009, Mr. Cooper's paycheque was returned from the bank marked NSF, and once again Mr. Copeman provided some assurances. Mr. Cooper, however, was not satisfied with that explanation and he began to enquire on his own.

The enquiries that he made revealed that he was not allowed to have financial information with respect to a bank where one of the major cheques from company business had been deposited. The reason for that was that Mr. Copeman had, behind Mr. Cooper's back, changed the corporate documentation with respect to the banking arrangements so that Mr. Cooper no longer had access to the banking information. Mr. Copeman had created a new account and Mr. Cooper had also been removed as a director of the company. Obviously, Mr.

Cooper was concerned and took steps, through the courts, to obtain the necessary information. [ 6 ] What emerged was that there was something in the order of $400,000 that Mr. Copeman had taken from D2 Construction and used for his own purposes. [ 7 ] The circumstances left Mr. Cooper with a significant amount of debt. He used his own resources and saw to it that the debts of the company were paid. That ranged in the area of $80,000 to $100,000. He has been impacted significantly, as is outlined in his victim impact statement, which I will touch on momentarily. [ 8 ] The circumstances of Mr.

Copeman are that he is 54 years old. He is married. He has four children, one of whom is an adult at 24, but three from a more recent relationship are 13, seven and five. That relationship is no longer existent; however, he has recently remarried in the last year or so. [ 9 ] He is a high school graduate. He has a good work record. He has worked at various jobs over the course of his life. He is been a radio operator. He has worked in the marine industry. He was for a time a dispatcher for the Vancouver Police Service. He works now as a cable splicer for a local company.

His employment is ongoing and, but for this matter, secure. [ 10 ] He had a drug problem around the time that these difficulties were emerging. He was a heavy drug user. He needed money to

fund that lifestyle and indeed the lifestyle that was associated with it was a lifestyle of partying and spending money. He has put the drugproblem behind him. He is now free of any illegal drugs and is living a life that is sober and clean. As I say, his employment isconsistent with that new status. [11] He has some letters of support from friends and from his brother. His brother summarized some of the difficulties that Mr.Copeman had encountered through the course of his life in his letter, which was dated May of last year. He noted that Mr.

Copeman hadbeen living a life that was apparently an enviable one, but was one which was obviously being funded by other people's money. Hepoints out that Mr. Copeman had sunk to a very difficult level and was partying and drinking and using drugs, and he even caused hismother's home to be used as a source of some of his money which caused the home to be foreclosed at some point. However he says inhis last paragraph, after summarizing all of this history, he said this [as read in]: That was then. Now Dave had to turn around his life.

He started working for ATI installing cable, Internet and phone systems forTelus. He had stopped using cocaine, was working hard, and started figuring out how to get his life back in order. David starting tryingto make up with his children first. This has been a long journey. It isn't over. There is still a lot of work there but he is trying. Dave's and my relationship hasn't been the same since as both of us have our own opinions about life and what has happened. We areworking on it. I can't speak for anyone else that was affected by Dave's life at that time. I see David working hard.

He is making hischild support payments and he gets to take his daughters out every now and again when time permits and he is in town. His job doeshave him travelling between Alberta and B.C. for weeks at a time. Dave is my older brother. I love him with all my heart and I can honestly say I benefit from Dave being a phone call away. He hasalways had an ear for any of my worries or sorrows. [12] There are other letters from friends. A Mr. Furritch [phonetic], and a letter from a Kerry Tranberg [phonetic], and finally aletter from his employer, ATI Telecom International Co., which states that Mr.

Copeman is an employee and that his employmentremains in good standing. He is a full-time employee working 40 hours a week. [13] The Crown submits that an appropriate range of sentence for the circumstances of this case is a sentence of between three andfive years in jail. The defence notes that it is open to the court to impose a conditional sentence order and says that a sentence of twoyears less a day to be served conditionally in the community, together with a period of probation to follow, would be a suitable sentence.

He submits that sentence takes into account the principles of deterrence and denunciation, as well as recognizing the steps that Mr.Copeman has taken towards rehabilitation since these circumstances came to light. [14] The Crown relied on the case of R. v. Dreger, 2014 BCCA 54. That was a fraud of $254,000. The sentence imposed at trialwas five years. It was reduced to four years on appeal. [15] The decision of R. v. Gaugler, 2011 BCCA 508, a sentence of four years involving a fraud of $2.5 million. The fraud tookplace over a ten-year period. The accused had no prior record.

The sentence in that case was upheld on appeal. [16] In R. v. Slobbe, 2011 BCCA 107, the court imposed a sentence of eight years at trial. It was reduced to seven years and sevenmonths, taking into account the pretrial custody. There were 11 counts involving a fraud of over $700,000. There was a further pastoffence of theft and the court emphasized the principles of denunciation and deterrence, and the Court of Appeal upheld the sentence. [17] In R. v. Tickell, 2010 BCCA 303, a sentence of four years was imposed in what was described as a well-planned, deliberatebreach of trust of an employer.

The court referred to R. v. Spiller, (BC CA), [1969] 4 C.C.C. 211, where a sentence ofsix years was imposed for a $492,000 fraud. Again, in the case of Tickell, the range of three to five years was described as a well-established range and one that emphasized general and specific deterrence. The court held that those two principles be given paramountimportance. [18] In R. v. Zolnasr, 2011 BCSC 1754, the court imposed a sentence of I believe it was 12 months. The circumstances were that thefraud had been committed. It was a fraud in the range of a hundred to $150,000.

The accused in that case had made full restitution. Thecourt imposed a sentence of two years less a day, noting that there was no threat to the community and the factors in R. v. Proulx, 2000SCC 5 , [2000] 1 S.C.R. 61, were satisfied. At para. 46 of that decision, Mr. Justice Willcock, as he then was, stated this: Of course, in sentencing Mr. Zolnasr, I must be guided by the principles enunciated in the Criminal Code. In the case before me, theprinciples of particular relevance are denunciation, and in the case of fraud committed by a person in a position of trust, special andgeneral deterrence.

The sentence must serve as a disincentive to the accused to commit crime again, and as a disincentive to others who,like him, may take a calculated risk to engage in fraud to improve their financial fortunes. [19] Other cases, R. v. Kristensen, B.C. Unreported 165713–1 of the Vancouver Registry, a three and a half year sentence wasimposed with respect to a prolonged and deliberate fraud. Similarly, in the case of R. v. Unrau, 2006 BCPC 311, a Provincial Courtdecision, a theft from an employer of over $250,000. The sentence emphasized denunciation and deterrence and the court referred to thedecision of R. v.

Hoy, (BC CA), [1998] B.C.J. No. 1649, a decision of the Court of Appeal, again where denunciationand deterrence are emphasized. [20] The Crown also pointed to the victim impact statement that was filed by Mr. Cooper. Mr. Cooper attended court at thesentencing submissions and read the statement into the record. He noted that the company had incurred debt of $80,000 to $100,000,which he has paid. He recovered some equipment that had been sent astray by Mr. Copeman in the course of his administration. Heexperienced a significant financial impact.

He suffered a loss of good will in the business, and he suffered a loss of some of his businessaccounts. He has incurred legal and accounting expense necessary to first of all set the corporate record straight so that he had his role as

director back in the company, that he was able to locate and to get copies of the various bank records, all of which, I might add, he did without any assistance from Mr. Copeman. [ 21 ] Mr. Cooper lost his savings that he had invested in the company at that point and his personal plan to acquire a home was set back several years as he was required to remain in a rental apartment while he recovered from the financial effects of Mr. Copeman's conduct. [ 22 ] Clearly the principles of deterrence and denunciation are to be predominant in cases of fraud where the person who commits the fraud is in a position of trust.

Mr. Cooper obviously placed trust and confidence in Mr. Copeman and, as a result, Mr. Copeman took advantage of it, and took advantage of it in a manner that was well-crafted and thought out and required significant sophistication in the sense of entering into banking arrangements without having Mr. Cooper involved. [ 23 ] Mr. Watt, on the behalf of Mr. Copeman, reviewed several cases in his submission. He pointed out at the outset that he was not seeking a probationary sentence tied to a suspended sentence or a conditional discharge of any kind.

He is seeking a jail sentence, but one of two years less a day, a sentence, that is, that conforms to the requirements of a conditional sentence order which is available to Mr. Copeman, given the date of the offences that he is pled guilty to. [ 24 ] Mr. Watt submits that the circumstance of this case, while serious, satisfy the conditions set out in R. v. Proulx , and the statutory conditions of the sentence should be one of two years less a day, and that Mr.

Copeman is a suitable person for a conditional sentence order in that his presence in the community would not endanger it. [ 25 ] Obviously the threshold question is whether the facts of this case are suitable for a sentence of two years less a day. I was referred to several cases. Perhaps the most significant is R. v. Nakamura , 2012 BCSC 327 , a decision of Mr. Justice Romilly. That was a case where serious offences of aggravated assault, robbery and extortion were committed in the course of an attempted theft of marijuana. The assaults were described as vicious, unprovoked assaults associated with the robbery.

The offenders were described as youthful first-time offenders, with positive presentence reports. The accused were given a suspended sentence with two years' probation. The court noted that the circumstances allowed a probationary or community-based disposition, given the steps that had been taken towards rehabilitation and the youth of the offenders. [ 26 ] A similar result was in my own decision of R. v. Boone , 2013 BCSC 1306 . That was an unprovoked assault on a stranger which caused bodily harm.

It was a vicious assault involving punches and kicks, which engaged the conflicting principles of denunciation and deterrence and rehabilitation where the accused had spent three years post-offence showing that he had changed his life and was well on his way to rehabilitation, if he had not reached it. [ 27 ] Both of those cases did not involve any breach of trust. Both were somewhat impulsive in the sense that they were not planned, they did not carry on over a period of years, and they did not involve the necessary guile to alter corporate and banking records.

Some were alcohol driven, such as Boone , and there had been significant steps towards recovery. [ 28 ] In R. v. Bortolussi , a 1997 decision with the Ontario court, it is reported at [1997] O.J. No. 3679 , the fraud consisted of an accountant failing to make appropriate remittances to the Canada Revenue Agency. The accused was an accountant who experienced professional discipline and loss of a career, and he was sentenced to a sentence that was served on a community sentence order of less than two years. [ 29 ] Similarly, in R. v. Kratky , [1997] B.C.J. No. 3167 , a decision of the B.C.

Supreme Court, a $400,000 fraud over three employer dentist offices resulted in a conditional sentence order of 18 months. The Crown took no position on that application and the court stated that the sentence in that circumstance satisfied the principles of denunciation and deterrence. [ 30 ] In R. v. Anderson-Davis , 2000 BCSC 42 , again an 18-month sentence was imposed to be served conditionally in the community for a $136,000 fraud, although it is noted that the accused had made full restitution. That is similar to the decision in R. v.

Zolnasr , which resulted in a lower sentence as a result of full restitution being made. [ 31 ] In R. v. Tulloch , [2002] O.J. No. 5446 , a fraud of $438,000 which was a sophisticated scheme of defrauding the government with respect to the Goods and Services tax, the court imposed a sentence of two years less a day to be served conditionally in the community.

In that circumstance, there were some psychological conditions that played a role and the court noted that the accused was not the leader of the fraud, and at one point, when he first engaged, he did not actually think it was illegal. [ 32 ] Finally, in R. v. Wilson , 2003 BCSC 414 , the court stated that a community-based sentence was not out of order with respect to the circumstances of fraud. [ 33 ] It is clear there are some inconsistencies in the outcomes that at times might not be easily explained on strict comparison of the facts.

However many of the cases which imposed a conditional sentence order are, not surprisingly given the fact that the sentence was available in years past, go back to the year 2000 or 1997. [ 34 ] The more recent decisions with respect to a breach of trust and in particular theft from employers emphasize deterrence and denunciation, and establish a range of three to five years in prison. It is to be noted that, while that is the guideline range, it is not a rigid direction to impose sentences that fall strictly within that range. Each case is unique and each case must be dealt with on its own circumstances: R. v.

Nasogaluak , 2010 SCC 6 . [ 35 ] The principles of sentencing include the principles of parity and proportionality, but also deal with the principles that are clearly and plainly set out in s. 718 of the Criminal Code .

The first is to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; the second is to deter the offender and other persons from committing offences; third, to separate offenders from society where necessary; fourth, to assist in rehabilitating offenders; fifth, to provide reparations for harm done to victims or to the community; and finally, to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[ 36 ] In s. 718.2, it is noted that a breach of a trust is an aggravating factor with respect to imposing a sentence. [ 37 ] The aggravating factors in this case are clearly the breach of the trust that Mr. Cooper placed in Mr. Copeman was broken, not just broken accidentally or inadvertently, but broken over a period of several months, if not years, and broken in a way that caused significant financial harm to Mr. Cooper and one would presume has created a much different approach to business life for the future.

There is, in this case, a pattern of unlawful conduct that was not, as I say, one that happened over only a short period of time. [ 38 ] Mr. Copeman was not cooperative when the issue was first raised. He denied the difficulty when the first issue of a non- payable cheque was presented and he took steps to hide his conduct by removing Mr. Cooper as a director of the company and to create a new bank account which was known only to himself and was kept secret from Mr. Cooper. That was done with the sole purpose of enabling him to either hide his conduct or, perhaps more importantly, to enable him to continue it.

There was a significant impact on Mr. Cooper which I have already discussed. [ 39 ] As to mitigation, there was a guilty plea. Mr. Hay, in submissions for the Crown, says that the guilty plea does not count for much because the accused was inescapably caught and knew he had nothing to gain by continuing. Nevertheless, it was a guilty plea that saved the significant cost of a trial and saved Mr. Cooper some significant time in trying to piece all of the materials back together. [ 40 ] Mr. Copeman effectively comes before the court without a criminal record.

He has one prior dealing with the court that was dealt with by a discharge and does not form a factor in my consideration of this sentence. I must say that the recent cases emphasize denunciation and deterrence and have consistently discussed a sentencing range of three to five years. [ 41 ] In this case, notwithstanding the steps that Mr. Copeman has taken to rehabilitate himself and to put things right in his own life, I am not able to say that the principles of denunciation and deterrence should be given a lesser role so that the principle of rehabilitation can be given a greater emphasis.

In these circumstances, it is not my view that a sentence in the range of two years less a day is appropriate. I believe that the sentence range that the Court of Appeal has discussed and repeatedly discussed is appropriate. I think Mr. Copeman fits at the low end of that range and my decision will be that he will be given a sentence of three years. [ 42 ] Mr. Copeman, if you would stand up please. [ 43 ] I impose a sentence of three years in the penitentiary.

I take note of the fact in doing so that you have taken significant steps to put your life on a better footing, and I hope you are able to continue that when the sentence is concluded. Given what I expect you will do with respect to your conduct in prison, you will likely not serve the entire sentence and may well be back in the community at an earlier time than three years. [ 44 ] Nevertheless, I feel it is necessary to impose that sentence as a consequence of your conduct. I do not intend to add any other orders or conditions such as a DNA order or anything else, subject to anything that the Crown might say.

But that is my sentence. [ 45 ] If you could just sit down again for a moment, I will listen to anything that Mr. Hay or Mr. Watt might have to say. [ 46 ] MR. HAY: My Lord, I think the victim impact statement issue needs to be addressed. [ 47 ] THE COURT: And that is? [ 48 ] MR. HAY: I think -- my recollection is that you are required to order a victim impact surcharge, but I could be mistaken. [ 49 ] THE COURT: Oh, I am sorry. The surcharge, I am required to order it, yes. And it is, I believe, a $200 surcharge in the circumstances of this case. [ 50 ] MR. HAY: I think so, My Lord. [ 51 ] THE COURT: All right.

I will order that. I do not know if it can be paid but I will grant a period of six months to pay. [ 52 ] MR. WATT: Thank you, My Lord. [ 53 ] THE COURT: Thank you. [ 54 ] MR. WATT: Thank you, My Lord. [ 55 ] Oh, there is one thing, My Lord. I do not see -- [ 56 ] THE COURT: Stay of proceedings? [ 57 ] MR. WATT: -- that counts 2 and 3 have been dealt with. [ 58 ] MR. HAY: Oh, might they be stayed? [ 59 ] THE COURT: All right, thank you. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken