R. v. Dhaliwahl, 2011 ONCJ 560

COURT FILE No.: 10 2298 Citation: R. v. Dhaliwahl , 2011 ONCJ 560 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BALJIT DHALIWAHL Justice Lloyd Dean Submissions made as to sentence on September 13, 2011 JENNIFER HOLMES .......................................................................................... for the Crown PAT DUCHARME ............................................................................................ for the Accused JUDGMENT Introduction 1 On July 14, 2011, the Offender pleaded guilty to fraud over $5,000.00 contrary to s. 380 (1) (

a) of the Criminal Code . A pre- sentence report was ordered at that time. Submissions as to sentence were made before me on September 13, 2011. Both parties agree that a term of imprisonment is appropriate. The issue is whether the Offender should be allowed to serve the term of imprisonment in the community pursuant to a conditional sentence order or be incarcerated. Facts 2 At the time of the offence the Offender was employed as a junior analyst in the finance department at Hotel Dieu-Grace Hospital here in Windsor. She has been an employee of the hospital since 2003.

As a junior analyst in the finance department the Offender had direct access to cheques that were issued to numerous physicians employed by the hospital. The hospital took care of billing the Ontario government on behalf of the physicians, receiving payment from the government and then dispersing those payments to the physicians. Over a period of approximately four years, December 1, 2006 to August 31, 2010 the Offender deposited into her personal banking accounts 182 cheques that had been issued by the government payable to the physicians.

The physicians had not endorsed the cheques before the Offender deposited them into her personal accounts. The total amount of the fraud was $430,497.00. Background of the Offender 3 The Offender is 41 years of age. She has been separated from her husband since 2001, and was officially divorced in 2007. She has maintained custody of her two children since leaving her marriage. According to the Offender her ex-husband has never pursued access rights to the children and the children do not have any contact with their father.

It is further indicated in the pre- sentence report that the Offender only rarely receives financial support from her ex-husband through the Family Responsibility Office when his tax refunds are garnished by that office. 4 According to the pre-sentence report she shares a good relationship with her parents and siblings and continues to have their support despite being involved in the offence before the court. The parents have in the past assisted the Offender with caring for her children. They have lived with the parents in the recent past while the Offender sought employment in another jurisdiction.

5 The Offender completed two years of university education before leaving and pursuing employment. She has worked primarily in the accounting field. She had been employed at Hotel Dieu-Grace Hospital for approximately seven years at the time the offence was discovered. She has had difficulty maintaining employment since the offence and has relocated to a nearby municipality. She is currently working full time for a company in their human resources department.

She is worried about losing her job should her current employer find out about the present court proceedings. 6 The pre-sentence report indicates there are no concerns noted with regards to substance abuse or addictions. The defendant does not have a drug or alcohol problem. There is no evidence of a gambling addiction or other compulsive behaviour. 7 According to the pre-sentence report the Offender accepts responsibility for her actions and expressed a great deal of remorse for the trouble she has caused.

Her father expressed shock at the Offender’s behaviour and does not feel her choices were representative of her upbringing or character. The father believes the Offender has learned a great deal from her involvement in the Court and is not likely to encounter conflict with the law in the future. He expressed to the author of the report that his daughter is fearful of being separated from her children and this has caused her to further consider the far reaching consequences of her choices. He believes she will comply with any conditions imposed upon her if it means she is able to continue to care for her children.

The Offender’s sister believes her sister is at the moment just getting by financially, psychologically and emotionally. 8 The author of the pre-sentence report believes the Offender to be a suitable candidate for community supervision, although the enormity of the fraud from a position of trust is acknowledged. Letters of reference 9 The defence filed four letters of reference, one from the Offender’s family physician and three from members of her family. 10 Her older sister writes that the Offender is deeply regretful and remorseful. She describes her sister as a good mother whose children adore her.

She also believes her sister has learned from her mistake and has lost much from her actions, including the respect of family and friends. 11 The Offender’s younger brother describes the Offender as a hardworking, loving and kind person who is very dedicated to her two children. He states her actions have cost her a loss of reputation in the family and their community.

He believes she recognizes her poor choice and the toll it has taken on the entire family, including her children and believes she is very remorseful and ashamed. 12 Her father expresses in his letter that his daughter is deeply sorry and regretful and has learned from her mistake. He speaks of his daughter contemplating suicide when the offence was first revealed. Her love for her children eventually persuaded her to continue living. The father speaks of being glad his daughter was apprehended as she was caught in a vicious circle and it needed to be put to an end.

He writes that the Offender had created a lifestyle for herself that was only possible by stealing the funds. He stated he will stand by her and help her correct her wrongs. He came out of retirement to help her pay back as much as possible. The father also speaks of the Offender losing the respect of her family and friends as a result of the offence. He indicates in the letter that the court can take nothing more from her because she has lost everything, other than her children.

He believes she has been punished enough and putting her in jail would not benefit society in any manner and asks the court to forgive her and give her a chance to change her life for the good. 13 Her family physician describes himself as a friend of the family. He indicates the Offender is a very nice person who has a good relationship within the Sikh community. He describes her as being remorseful and ashamed of her actions as well as the harm it has caused her family. He is confident she will work to pay back every penny she stole.

He too does not believe putting the Offender in jail would serve any useful purpose and would only separate her from her children. He believes that would be a harsh punishment for the innocent children. Victim Impact statement 14 A victim impact statement was prepared by the Vice President Corporate Services and Chief Financial Officer of the hospital. It indicates that the Offender was hired in 2003 on a temporary basis and based on her performance, which was described as competent and efficient, she was hired permanently and moved into a newly created position within the finance department.

Over her period of employment the hospital supported her development by investing in external training courses for her. As well, other employees took time

to provide her with on the job training. As an employee of the finance department the Offender was held to the highest standard of trust as she was working with public funds entrusted to the hospital by the government to provide care to the people of this community. 15 The statement goes on to indicate while the physician losses have been covered by insurance the hospital has incurred significant expense. An internal review had to be conducted as a result of the fraud. Hospital finance staff worked overtime examining thousands of cancelled cheques to determine the magnitude of the fraud.

Forensic auditors had to be hired to conduct an audit. As of the date of the statement the costs associated with all of these steps was $44,000.00. The hospital is still waiting the final report and billing for the audit. 16 The statement speaks of the hundreds of extra hours of staff time that has been spent meeting with police and lawyers to prepare documents such as affidavits and insurance claims, meeting with the auditors and insurance adjustors and making changes to the financial practices of the hospital. This has added an increase of stress in the workplace and has had an impact on employee morale.

The author of the statement notes the staff in the finance department work hard every day to ensure that public funds are properly spent and accurately accounted for; the Offender’s actions have brought to question the integrity of the entire department and have been damaging specifically to the reputation of the finance department and generally to the hospital as a whole. Position of the parties 17 The defence does not dispute the Offender should receive a jail sentence but argues the Offender should receive a conditional sentence.

Defence counsel recognizes that the main obstacle for it to overcome in convincing me that a conditional sentence is appropriate is the fourth criterion; would a conditional sentence be consistent with the fundamental purpose and principles of sentencing found in ss. 718 to 718.2? 18 In support of his submission he relied on numerous cases, including two from this jurisdiction involving colleagues of mine (see endnote for a complete list). He also points to the strong family support the Offender has and the extreme remorse she has shown.

He describes the Offender as living in complete agony since the offence has become known to her family, friends and the community. He indicated the Offender is terrified at the prospect of going to jail and being separated from her children, who are nine and eleven. Counsel indicated that the Offender’s parents are not in good position to care for the children as her fifty-seven year old father suffers from a bad back and her sixty-five year old mother doesn’t see well and it is difficult for her to care for the children. The Offender has two younger sisters, a younger brother and one older sister.

Defence mentioned that her sister who resides within this community has three children of her own and has her in-laws living with her so she would not be able to care for the children. He also stated the ex- husband would not be a viable option based on the history between the children and father over the last several years. Defence counsel indicated that the children are now settled in a new community with their mom. 19 Defence counsel believes the accused is suffering from depression. This is supported in the letter of reference provided by her father.

It has not been suggested the Offender was in a depressed state during the time period of the offence, thereby contributing to her behaviour. To this date the Offender has never seen a psychologist or psychiatrist. According to defence counsel she has found her family physician very helpful and she does not feel like she needs anything more. Counsel does suggest that a condition of the conditional sentence and/or probation requiring counselling could prove helpful. 20 The Offender has from the time of the charges tried to come up with as much restitution as possible.

She has made approximately $60,000 in restitution, much of it coming from the forced sale of her house. 21 The Crown has asked this court to impose a jail sentence in the range of 9 to 12 months and argues that the Offender should be incarcerated. The Crown believes the appropriate range of sentence may in fact be 18 months but suggests the 9 to 12 month range taking into account the mitigating factors and all of the submissions made by the defence. 22 The Crown relies on the cases it has provided, including a decision of mine from a few years ago involving an employee fraud.

Crown counsel suggests the cases provided by the defence are easily distinguishable. 23 The Crown argued that the Offender’s actions were motivated by nothing other than greed. Crown counsel went through the Offender’s credit card statements obtained by the police during the investigation, pointing out again and again the purchases made by the Offender during the relevant time period, purchases which included clothing, cosmetics, furniture, vacations, cosmetic surgery and a new home. Crown counsel also pointed out the accused was driving a luxury automobile at the time. While Crown counsel is sympathetic

towards the mother being separated from her children, it is the Crown’s position that the Offender should be incarcerated. The Crown submits that many, if not most, of the people the court sentence have children, and it is not the Court’s job to figure out child care for someone who deserves custody. Crown counsel goes on to point out that the Offender is still today the benefactor of all the clothing, dinner’s out, vacations, movies and the memories associated with all of those events.

The Law 24 Following are the relevant sections of the Criminal Code for this particular case with respect to the sentencing: 718. The fundamental purpose of sentencing is 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; (

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 and 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; … (

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. … 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. Issue 25 The main issue before the court is whether the Offender ought to be permitted to serve her sentence conditionally. If I decide against her in this regard, the subsequent issue is the duration of the sentence to be imposed. Analysis 26

Section 742.1 of the Criminal Code lists four criteria that a court must consider in deciding whether to impose a conditional sentence: (1) the offence does not fall within certain categories or require a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the Offender serving the sentence in the community; and (4) such a sentence would be consistent with the fundamental purpose and principles of sentencing prescribed in ss. 718 to 718.2 of the Criminal Code . 27 The first three criteria are necessary conditions that must be satisfied before any conditional sentence may be imposed.

If all of these criteria are satisfied I must give serious consideration to a conditional sentence.

28 In this case, there is no suggestion that the first three criteria have not been met. There is no minimum sentence prescribed for thisoffence. The Crown is suggesting a range of sentence between 9 to12 months. I have determined that the appropriate sentence is notprobationary measures or a penitentiary term. Should I decide to allow the Offender to serve the term of imprisonment in the communityI am satisfied it would not endanger the safety of the community. The issue is whether or not the fourth criterion has been met.

Would aconditional sentence in this case be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to718.2 ofthe Criminal Code? The Conditional Sentence Regime 29 There are no categories of offences, other than those mentioned in S. 742.1, that are excluded from consideration for aconditional sentence. 30 The Supreme Court of Canada in R. v. Proulx (2000), 2000 SCC 5 , 140 CCC (3d) 449, at paragraph 100 stated: 100 Thus, a conditional sentence can achieve both punitive and restorative objectives.

To the extent that both punitive andrestorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where theneed for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likelybe the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will bepreferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectivelyas incarceration.

This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives toincarceration where appropriate in the circumstances. 31 In paragraphs 114 to 116 the Supreme Court went onto state: 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there areaggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact thatrestorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciationand deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditionsimposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditionalsentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. 116 Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditionalsentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives infashioning a fit sentence. As La Forest J. stated in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329, “[i]n a rationalsystem of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the natureof the crime and the circumstances of the offender”. There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion inmaking these determinations pursuant to s. 718.3. 32 In R. v. Dobis, (ON CA), [2002] O.J.

No. 646, the Ontario Court of Appeal at paragraph 49 stated: [49] It is clear that no category of offence is excluded from the conditional sentence regime: see Proulx, supra, at pp. 126-27S.C.R., p. 501 C.C.C. Specifically, a conditional sentence is a possible sentence in a fraud case, even with respect to a large-scale fraud:see Bunn, supra. [50] However, it is also clear that certain offences will usually lead to custodial sentences. As expressed by Lamer C.J.C. in Proulx, at p.117 S.C.R., p. 494 C.C.C.:

[T]here may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether theoffence is one in which the effects of incarceration are likely to have a real deterrent effect… 33 The Ontario Court of Appeal in several cases has repeated that a conditional sentence is not appropriate in a case of large-scalefraud involving breach of trust, because of the requirement of denunciation and general deterrence.

Denunciation and general deterrenceare the paramount factors in sentencing in large-scale fraud cases involving breach of trust, and this is a large-scale fraud case involvinga breach of trust: see R. v. Dobis, supra, R. v. Holub, (ON CA), [2002] O.J. No. 579 (Ont. C.A.), R. v. Bogart, (ON CA), [2002] O.J. No. 3039 (Ont. C.A.) and, R. v. Drakes, 2009 ONCA 560 (Ont. C.A.), at paragraphs 25 and 26. 34 In R. v. Proulx, supra, at paragraph 102 the Supreme Court described the objective of denunciation in the following terms: 102 Denunciation is the communication of society's condemnation of the Offender's conduct.

In M.(C.A.), supra, at para. 81, I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the Offender's conduct should bepunished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawtonstated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types ofcrime, and the only way in which the courts can show this is by the sentences they pass". 35 Once again in Proulx the Supreme Court made these comments on the principle of deterrence at paragraphs 106 and 107: 106 The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of theOffender, the nature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the moreserious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However,there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitableway in which to express society's condemnation of the offender's conduct. [Emphasis added by the Supreme Court.] 107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.

Judges shouldbe wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: seeWismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generallySentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence ifsufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibilityof deterrence through the use of community service orders, including those in which the Offender may be obliged to speak to members ofthe community about the evils of the particular criminal conduct in which he or she engaged, assuming the Offender were amenable tosuch a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This willdepend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as wellas on the circumstances of the community in which the offences were committed. [Emphasis in last two sentences added.] 36 At paragraphs 29 and 30 of Bogart, supra, the Ontario Court of Appeal stated: [29] Two aspects of the need to give effect to general deterrence come into play in this case. First, general deterrence is the mostimportant sentencing principle in major frauds.

Second, when general deterrence is "particularly pressing", as it is here, the preferablesanction is incarceration. [30] This court has affirmed that in cases of large-scale fraud committed by a person in a position of trust, the most importantsentencing principle is general deterrence. Mitigating factors and even rehabilitation become secondary. In R. v. Bertram and Wood,

(1990), 40 O.A.C. 317, this court observed that most major frauds are committed - as this one was - by well-educated persons of previousgood character. Thus the court held at p. 319, The sentences in such cases are not really concerned with rehabilitation.

Instead, they are concerned with general deterrence and withwarning such persons that substantial penitentiary sentences will follow this type of crime, to say nothing of the serious disgrace to themand everyone connected with them and their probable financial ruin. [Emphasis in original.] 37 Both Counsel have provided me with a series of cases which have been instructive. I wish to comment on the case law relied uponby the defence. 38 I agree with Crown counsel that the cases defence counsel relies on are distinguishable from this case. Each case can be factuallydistinguished from the one now before me.

There are two cases from this jurisdiction that defence counsel has relied upon. I wish tospecifically comment on them. 39 The first one is R. v. Labelle, an unreported decision of DeMarco J. on November 13, 2009. The accused, Ms. Labelle had beenemployed at a Bank of Montreal for 36 years, the last 12 years before the offence was as assistant manager. Over a period of two and ahalf years she defrauded the bank of $51,000.00, although it was suspected that the fraud had been occurring beyond that time period.Ms.

Labelle had no substance abuse or addictions and appears her crime was motivated by a desire to provide for her adult children andher mother who she had been taking care of. At the time of the sentencing Ms. Labelle was able to accumulate $51,000.00 in order tomake full restitution. There was a joint position for a four month conditional sentence and 12 months probation. DeMarco J. acceptedthe joint position although he expressed that he might have otherwise imposed a longer duration but for the joint submission.

HisHonour recognized that the law had changed in recent years and a conditional sentence was an appropriate sentence. I note the amountof the fraud, the fact that full restitution was made before sentencing, and there was a joint submission. 40 The defence further relied on a case presided over by my colleague Campbell, J. in the case of R. v. Kovachik on October 14,2010. Defence counsel in this case was also counsel for Ms. Kovachik. According to counsel it is an unreported decision. It was a fraudfrom an employer which involved more transactions than the case before me but a smaller amount of money was taken.

The amount ofthe fraud was approximately $200,000.00. His Honour imposed a conditional sentence of two years less a day and three years probation.A copy of the decision was not provided so I do not know all of the factors Campbell J. considered in arriving at his decision.

I do notethe amount of the fraud was less than half of the amount in the case before me and Campbell J. gave the maximum conditional sentenceavailable. 41 I have reviewed all of the case law submitted to me and observe that the custodial sentences imposed on others for fraud inpositions of trust range from several months to several years depending on the circumstances. Following is a review of several casesfrom the Ontario Court of Appeal. 42 In R. v. McEachern (1978), (ON CA), 42 C.C.C. (2d) 189 (Ont. C.A.), a bank manager stole $87,000. Hereceived a suspended sentence at trial.

When the appeal hearing took place, the family was expecting a third child. The court allowedthe appeal and increased the sentence to 18 months in custody. I note this case was before conditional sentences were available. 43 In R. v. Pierce (1997), (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.), a woman defrauded her employer of$270,000. She received a sentence of 21 months. On appeal, the sentence was reduced to 12 months. She was the mother of three smallchildren and the court took that into account.

The court observed at p. 40: I would . . . refuse the application to permit the appellant to serve the sentence in the community. The abuse of a position of trust orauthority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines under s. 718.2. This factorhas traditionally drawn a severe custodial term even with first Offenders. [Emphasis in original.] 44 In R. v. Underys, [1999] O.J. No. 4372 (Ont. C.A.), the Court of Appeal upheld a conditional sentence of 18 months for a

manager who stole more than $1,000,000 from a credit union. However, the issue on appeal in that case was the appropriateness of aconditional sentence; the court’s endorsement began: “The Crown at trial did not take issue with the sentence of eighteen months”. 45 In R. v. Wismayer, (1997), (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), the Appeal Court said, at p. 38: General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for thoseoffences that are likely to be affected by a general deterrent effect.

Large scale well-planned fraud by persons in positions of trust, suchas the accused in R. v. Pierce, would seem to be one of those offences. 46 In the end, each case must turn on its own unique set of facts and individual circumstances or antecedents of the Offender. Thefitness of sentence depends on both the circumstances of the offence and the Offender, and the weight to be given to certain factors, bothaggravating and mitigating, that are peculiar to the case before the court. Aggravating Factors 47 The following are the aggravating factors: 1. The offence involved a serious breach of trust.

The Offender was employed by a public institution funded by public funds and givenmuch trust handling those public funds. 2. The amount of the fraud was substantial. It qualifies as a large scale fraud. 3. There were a large number of transactions. While it was not extraordinarily sophisticated, it resulted from deliberate pre-planningrather than a momentary lapse of judgment. The fraud occurred over a protracted period (almost four years). 4. Personal benefit was the sole objective and the motivation was pure greed (the desire for a higher lifestyle).

The Offender wasmaking in excess of $50,000.00 annually during the duration of the fraud. She spent the money obtained by the fraud on differentthings; many of the items were luxury items which were far above what she could afford on her own. The items included furniture,clothing, cosmetics, eating out regularly, luxury car, new home, vacations (including Las Vegas) and cosmetic surgery. Mitigating Factors 48 The following are the mitigating factors: 1. She has entered a plea of guilty without setting a trial date. It has been her intention to plead guilty from the beginning.

It saves courttime and the public expense of a trial. The plea is an indication of remorse and the potential for rehabilitation. Her expression of remorsein the courtroom was emotional and sincere. She has suffered much shame as a result of her crimes becoming known to her family,friends, and the community at large. 2. She has no criminal record.

3. She has made approximately $60,000.00 in restitution and expressed a commitment to repay every penny even if it takes the rest of her life. 4. She has strong family support in place. 49 At the trial court level in R. v.

Pierce , supra, and quoted in the Appeal Court ruling, the trial judge stated: This country, from coast to coast and especially the heavy populated urban areas of Southern Ontario, abounds with fraudsmen who would regard a low or a non-custodial sentence in these circumstances as an irresistible temptation to take the risk of spending a few short months in jail (a Canadian jail) in return for attempting the crime of fraud or theft where the prize exceeds $150,000. To some, such a prospect would be almost irresistible.

Great care must be taken in the matter of sentence for a criminal offence such as fraud at this level of seriousness, to avoid the prospect that by over-emphasizing the principle of rehabilitation, the crime, to many, would be worth the risk of being caught . [Emphasis added by the Court of Appeal.] 50 The case before me is a case where the need for denunciation and deterrence is so pressing incarceration is the only suitable way to express society’s condemnation of the Offender’s conduct and to deter like-minded others from similar conduct.

The Offender was entrusted to deposit government payments to doctors directly into their personal accounts. She repeatedly violated that trust over the course of almost four years through a series of dishonest transactions. This ultimately engaged a degree of premeditation and covert scheming in order for her activities to go unnoticed by her superiors and victims. 51 Unlike many, if not most, fraud cases there is no psychiatric explanation for her conduct or substance abuse issues. Other than having two young children there are no exceptional circumstances surrounding the Offender.

I appreciate since this offence she has experienced depression like symptoms as a result of the shame this offence has brought on her and her extended family. The point I am trying to make is that there is nothing surrounding the circumstance of this case or the Offender that influence me to impose a sentence other than the kind of sentence that the Ontario Court of Appeal has stated is usual for this type of large scale fraud , which is one involving incarceration. Imposing a conditional sentence on the Offender in the circumstances of this criminal conduct does not meet the objective of denunciation.

Nor does a conditional sentence meet the objective of general deterrence which is so important in cases of large scale fraud involving breach of trust. The lengthy duration of this fraud represents a devious pre-meditated scheme to defraud a public hospital, its doctors and ultimately the public at large (i.e. taxpayers). In order to meet the principle of general deterrence, a custodial sentence would be the most appropriate way to send a message that this illicit activity is not worth the risk as it comes with harsh consequences.

The Offender must be incarcerated so that others who are like-minded are deterred from engaging in such criminal activity. The imposition of a conditional sentence in the circumstances of this case would not meet the fundamental purpose or principles of sentencing found in ss. 718 to 718.2 . Sentence 52 The duration of the custodial term is the only issue that remains to be decided. This is a very difficult sentence to impose. Frankly, this is the kind of case I would prefer was not left up to me decide. I am not unsympathetic to the personal circumstances of the Offender.

To steal the words of Crown counsel, it gives me no fun to separate the Offender from her children. Regrettably in many of the cases we have before our courts there are children who are left to suffer the consequences of their parent’s criminal conduct. It is a most unfortunate collateral negative effect. I cannot make it clear with written words the pain this case has caused me. The only salve to help ease the pain is to remind myself that Ms. Dhaliwal has done this to her children and not me. However, I am still left with sadness for both her and her children and pray that both Ms.

Dhaliwal and her children, with the assistance of her supportive family and community of friends, make it through the incarceration with as little damage to their family unit as possible. 53 I do want to acknowledge the Offender’s willingness to repay every penny of the restitution even if it takes the rest of her life. I am mindful that incarcerating her will add to the difficulty of her being able to fulfill that obligation.

With that and her children in mind I remind myself that I should impose the least restrictive term possible that meets the objective to be obtained with the sentence. 54 Upon reviewing the authorities listed in the endnote and taking into consideration all the factors to which I have referred, the aggravating and mitigating factors in this particular case and the circumstances and antecedents of this particular Offender, I am of the

view that a nine month sentence is appropriate. 55 This will be followed by a period of probation for 36 months with the following conditions in addition to the statutory terms:

a) report within 72 hours of your release from custody in person to a probation officer and be under their supervision or anyone elseauthorized by the probation officer to assist in your supervision and report at such times and places as required;

b) attend and actively participate in any counselling as directed by your probation officer; and

c) not engage in any trust relationship that would require you to handle accounts, books or negotiable instruments in the capacity of afiduciary, whether for financial gain or otherwise. 56 There will be two restitution Orders made pursuant to s. 738 of the Criminal Code. The first Order will require the Offender topay restitution in the amount of $322, 284.52 to the Health Care Insurance Reciprocal of Canada.

The second Order requires theOffender to pay $49,005.63 to the Hotel Dieu-Grace Hospital to be held in trust for the physicians who have not yet been reimbursed asof today’s date. 57 Further, there will be a DNA order made requiring the Offender to provide a sample of her blood to the Windsor Police Service,for DNA data banking purposes. Dated October 25, 2011 ________________________ Judge Lloyd Dean Ontario Court of Justice Endnote List of cases referred to: By defence: 1. R. v. Kirk, (ON CA), [2004] O.J. No. 3442 (Ont. C.A.) 2. R. v. Underys, [1999] O.J. No. 4372 (Ont. C.A.) 3. R. v. Robinson, [2003] O.J.

No. 4722 (Ont. S.C.) 4. R. v. Tulloch, [2002] O.J. No. 5466 (Ont. S.C.) 5. R. v. Adams, 2009 ONCJ 383 , [2009] O.J. No. 3442 (Ont. C.J.)

6. R. v. Campbell, [2005] O.J. No. 4696 (Ont. C.J.) 7. R. v. Dulmage, [2003] O.J. No. 3834 (Ont. C.J.) 8. R. v. Horvath, (SK CA), [1997] S.J. No. 385 (Sask. C.A.) 9. R. v. Harty, [2004] N.J. No. 328 (Nfld. Sup. Crt. Trial Div.) 10. R. v. Gabel, [2008] A.J. No. 324 (Alta. Prov. Crt.) 11. R. v. Inglis, [2002] B.C.J. No. 1551 (B.C. Prov. Crt.) 12. R. v. Layton, [2006] B.C.J. No. 3546 (B.C. Prov. Crt.) 13. R. v. Trask, [2005] N.S.J. No. 561 (N.S. Prov. Crt.) 14. R. v. Labelle, unreported, Nov. 13, 2009 (Ont. C.J.) 15. R. v. Kovachik, unreported, Oct. 14, 2010 (Ont. C.J.) The Crown referred to the following cases: 16.

R. v. Coffin, 2006 QCCA 471 , [2006] Q.J. No. 3136 (Que. C.A.) 17. R. v. Gyori, unreported, Nov. 14, 2008 (Ont. C.J.) Other cases considered: 18. R. v. Proulx (2000), 2000 SCC 5 , 140 CCC (3d) 449 (S.C.C.) 19. R. v. Dobis, (ON CA), [2002] O.J. No. 646 9 (Ont. C.A.) 20. R. v. Holub, (ON CA), [2002] O.J. No. 579 (Ont. C.A.) 21. R. v. Bogart, (ON CA), [2002] O.J. No. 3039 (Ont. C.A) 22. R. v. Drakes, 2009 ONCA 560 (Ont. C.A.) 23. R. v. McEachern (1978), (ON CA), 42 C.C.C. (2d) 189 (Ont. C.A.) 24. R. v. Pierce (1997), (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.) 25. R. v. Underys, [1999] O.J. No. 4372 (Ont. C.A.) 26.

R. v. Wismayer, (1997), (ON CA), 115 C.C.C. (3d) 18 (Ont. C. A.)