R. v. Antoine Date:, 2017 BCPC 333

Citation: R. v. Antoine Date: 20171114 2017 BCPC 333 File No: 102396-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BETTY ANTOINE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Chris Balison Counsel for the Accused: Mr. Eric Rines Place of Hearing: Kamloops , B.C. Dates of Hearing: September 28, 2017 and November 14, 2017 Date of Judgment: November 14, 2017

[ 1 ] Ms. Antoine is charged with one count of theft of money over $5,000. The Crown has proceeded by indictment. She stole the money from her employer, Bonaparte Indian Band. The amount of the loss identified by Crown is $166,241. The Victim Impact Statement from the Band identifies a higher sum. [ 2 ] Despite the quantum of the loss, Ms. Antoine did not engage in a sophisticated theft. The transactions occurred over two fiscal years.

She was suffering from a gambling addiction and used these funds to satisfy that addiction. [ 3 ] There has been a considerable loss to the community as outlined in the Victim Impact Statement of Chief Day. The community is small and close. Their external funding was significantly jeopardized. Ms. Antoine’s actions have caused stress, distrust and distress amongst the members of her community. They are divided, which is at least as harmful to the community as the theft itself. [ 4 ] This is not the first time that Ms. Antoine has stolen. She has a record that, although it is 34 years old, is similar in nature.

In 1983, Ms. Antoine received a suspended sentence and probation for false pretences. In 1984, she received a conviction for fraud and for 11 charges of uttering forged documents. [ 5 ] In the pre-sentence report, prepared by Eryn Rex, Ms. Antoine’s history is outlined. She is a Scandinavian immigrant whose family came to Canada in the 1960s. Ms. Antoine met her husband, Leroy Antoine in the mid to late 1970s. The evidence is that Ms. Antoine has been immersed in his culture since their marriage. They have been married for 34 years and have two biological sons together. Mr.

Antoine also has four children from a previous relationship. They also have two foster children. [ 6 ] Ms. Antoine described her home life growing up as normal. The family moved around a few times during her teenage years because of her father’s work. She was not the subject of nor witness to any abuse growing up. [ 7 ] Ms. Antoine’s husband struggled with alcohol abuse in the past but addressed his addiction before the arrival of their second child. He has been sober ever since. She is now her husband’s caregiver and is hopeful of avoiding a jail sentence because she helps him monitor his diabetes and arthritis.

He requires her assistance. [ 8 ] Ms. Antoine had no post-secondary school, having learned her skills on the job. She was employed by the Bonaparte Indian Band for 10 years at the time of the offence. She would like to return to work at least part time. Presently, her main source of income is Mr. Antoine’s pension. She is also interested in starting a hobby farm to supplement her old age pension. [ 9 ] Ms. Antoine advised Ms. Rex that the offence had taken a toll on her mental health. At one point she contemplated suicide.

She has been in contact with Kamloops Mental Health for the last year, meeting with her counsellor weekly. She had no prior history of mental health concerns and no family history of mental health issues. [ 10 ] Ms. Antoine has expressed to Ms. Rex that she is prepared to do all manner of community service to make amends. [ 11 ] On the issue of remorse, Ms. Antoine said that at the time of the offence she was feeling overworked and underpaid. She felt she was wearing “too many hats” and felt frustrated at the expectations placed upon her.

She was also frustrated by nepotism, particularly where others were favoured over her for more financial compensation. She expressed that she felt singled out over being Caucasian and therefore treated poorly by certain staff and Band members. She felt she was owed financial compensation for all of the extra work she had done. The funds that she stole were marked specifically for wages. She revealed she has addressed her gambling addiction through Gambling Anonymous. [ 12 ] Despite the apparent lack of remorse in her comments to Ms. Rex, Ms.

Antoine readily admits her wrongdoing and expresses extreme remorse for her actions. She is also prepared to engage in restorative justice with the Bonaparte Indian Band. Ms. Antoine attempted to go through a healing circle process but it was cancelled due to the illness of the Elder, Diane Sandy, who was to run that healing circle. [ 13 ] Although Ms. Antoine is not First Nations, she acquired status after marrying Mr. Antoine.

Her husband attended the Kamloops Indian Residential School where he was physically disciplined on a regular basis. [ 14 ] Prior to the offence, Ms Antoine was very engaged with the community volunteering with bingo nights, fundraisers and monthly dinners for the Elders. She has now withdrawn from community events because she believes the community is upset with her. [ 15 ] There are some letters of support which acknowledge Ms. Antoine’s offence but also recognize the contributions she made during the wildfire crisis suffered by her community this past July.

She is acknowledged for the other assistance she has provided to the community throughout her time there. The stress of her employment was acknowledged by some as well. [ 16 ] Mr. Rines argued that, while Ms. Antoine is not First Nations, she has been immersed in the aboriginal culture for the better part of 34 years. She was physically and mentally abused by her husband until he became sober. He also argued that Ms. Antoine was not being glib when she said that she was subjected to discrimination by Band members.

Rather than using her experiences as an excuse, she is expressing true sentiments about the position she was in. She is trying to explain the reasons she gave herself for taking the money. [ 17 ] The Crown submits that incarceration is necessary given the nature and extent of Ms. Antoine’s offence as well as her criminal record. The impact on the community is not to be minimized. The Crown seeks a minimum of 12 months incarceration. In support of this, the Crown cited R. v. Laskowski , [2015] B.C.J. No. 1147 and R. v. Zolnasr , [2011] B.C.J.

No. 2452 . [ 18 ] In Laskowski , the court recognized the pre-sentence report and Mr. Laskowski’s arrogance as well as his self-interests: 18 Indeed, the pre-sentence report observes that Mr. Laskowski engaged in lies and deceptions "when his income did not meet his perceived needs", that Mr. Laskowski told the police he thought he was "smarter than the system" and that he had used the money to take

his family out for dinners they otherwise would not have been able to afford. He referred to these actions as "choices I made". 19 It may be that Mr. Laskowski's background explains his unwillingness to be short of funds and his willingness to engage indeceptive activities to supplement funds, but that is far short of saying his culpability is diminished. These are the same pressures facedby many people, without resort to dishonesty. [19] The same may be said for Ms. Antoine. Her circumstances and addiction are similar to many.

In the end, though, these arechoices she made. [20] In Zolnasr, the court acknowledged the accused’s attempted suicide. Mr. Zolnasr had no prior record, but there were similaraggravating factors which were identified at paragraph 30, including a theft from an employer. [21] As with Zolnasr, Ms Antoine conducted these offences over a two year period. The sums were significant and came at atremendous cost to the Band. Her actions were entirely deliberate to finance her gambling habit and her misguided sense of entitlementbecause of her perceived mistreatment.

She was in a position of trust and committed the crime purely for personal gain. [22] At paragraph 54 of Zolnasr, the court applied the rationale in R. v. Bodnarchuk, 2008 BCCA 39 , 2008 B.C.C.A. 39,noting that the restitution orders are themselves punishment and must accordingly serve to reduce an appropriate term of imprisonment.A conditional sentence order was still available for such an offence. It is no longer available. [23] The court wrote found at paragraphs 56 through 58: 56 In sentencing Mr.

Zolnasr, I must weigh the jurisprudence to the effect that fraud is considered to be an offence that results from thetaking of measured risks by persons seeking financial gain and its prevalence is likely to be affected by sentences of imprisonment. I amfurther required to consider the fact that the accused was in a position of trust as an aggravating factor. 57 As mitigating factors, I take into account his guilty plea. That has spared the employer and society some time and expense in theprosecution.

I also take into account as a mitigating factor that this is his first offence, and I take into account the intended plan forrestitution. I also take into account the sense of shame and regret that he expressed yesterday in his submissions to me. 58 I must consider whether there are extreme mitigating personal factors such as to warrant a conditional sentence. Mr. Zolnasr lost hisjob, but has only briefly been out of work as a result of the investigation, the charges, and his conviction. He has continued to work in thesame industry, doing a similar job.

He has not sought the treatment recommended by the psychiatrist. He does not appear to havecommitted the crime under the influence of illness, disability or addiction. He was motivated by a desire to appear to be successful; inother words on economic motive. While he has been humiliated at home and become depressed by the impact of his actions on his self-respect and the loss of his position as a sales manager, he has not been prohibited from employment by professional associations. He hasnot suffered extreme public humiliation and embarrassment.

In fact, he has not obtained references with a view toward concealing hisoffences from colleagues and associates, although there has been some recent publication of these proceedings. [24] In the Crown’s submissions, being well-liked in the community is what made the offence possible. Therefore, the letters ofsupport must be tempered by this reality. I agree. [25] Ms. Antoine wants to heal with the Bonaparte Indian Band. Some members are not willing to do a healing circle with her. Shedoes not intend to use that healing circle as a means to escape jail, but to engage in the restorative process. [26] Ms.

Antoine has started to make contributions to return the money she has taken. This is only $150 per month. She is meetingwith a mental health worker. She has isolated herself because of the strife she finds in the community. She is also on the waiting list togo Puritan House although it is unclear where she is in that process. Although she complained of being passed over for opportunities andfelt bullied because she was Caucasian, Ms. Antoine recognizes that she should have left the position instead of resorting to this crime.Mr.

Rines argued that she has accomplished much in her time of employment for the community with respect to programming. What shehas gone through this past year as a result of her actions he submits has addressed specific deterrence. [27] Defence proposes a three year suspended sentence with restrictive terms for general deterrence including house arrest for oneyear, a curfew for one year, counselling for mental health and gambling including residential treatment, victim offender reconciliation, aformal apology, and 1500 hours of community work. [28] Mr. Rines referred to the decisions of R. v.

Peters, 2015 N.B.C.A. 119, R. v. McCook, 2015 BCPC 1 , 2015 B.C.P.C.0001, and R. v. McGill, 2016 ONCJ 138 , 2016 O.N.C.J. 138. In Peters, the court considered whether a suspended sentence wasappropriate for a charge of this nature. In order to achieve such a sentence, there has to be something to indicate that the offender hadtruly turned his or her life around and that the protection of the public was better served by a non-custodial sentence. Mr. Rines arguedthat Ms. Antoine has accepted responsibility for her addiction and where it led.

She will have the continuing stigma of being a thief. [29] In McGill, the court acknowledged that probation may be adequate deterrence where a conditional sentence was no longeravailable. The presence of community supports is one of the factors to be considered. On the other hand, the court must consider thenature of the offence and whether there is any likelihood of restitution. The court acknowledged at paragraph 98 that the accused’s priorgood character had helped or enabled her to commit the offence, just as with Ms. Antoine. [30] The court also cited at para. 104 from R. v. Wallace, [1996], Ont. Ct. Gen.

Div. at para. 42 as follows: [42] I am inclined to the view that the use of the terminology “would not endanger the safety of the community”, as used in s.742.1(

b) of the Code, includes both the notion of risk from the offender himself or herself, and, endangerment of the community in thebroader sense of dilution of the general deterrence principle to the point of eliminating any deterrent warning to like-minded individualsconsidering commission of the offence in question. That a safe community is advanced by the deterrence of others from committing theoffences in question is clear, in my view, from a reading of s. 718 itself.

[31] Mr. Rines argued that in McCook her community had three years to forgive her actions whereas Ms. Antoine has not had thebenefit of that time. I am not satisfied that delaying a sentence to achieve forgiveness is a proper measure for assessing a fit sentence. [32] Finally, Mr. Rines argued that Gladue factors apply even though Ms. Antoine is Caucasian born and status by marriage. Heargued that she has been immersed in the culture and cannot sever her experience from the community experience. [33] Counsel were asked for submissions about whether Ipeelee and Gladue principles could apply to Ms. Antoine.

I received thosesubmissions in writing. [34] Counsel argued that Ms. Antoine is 62 years of age. She became a status aboriginal through marriage, and has two adultbiological and two adult foster children who are aboriginal. As noted previously, her husband attended Kamloops Indian ResidentialSchool and suffered physical and mental abuse while attending. As a result, Mr. Antoine struggled with alcohol historically, and Ms.Antoine suffered domestic abuse. [35] Ms.

Antoine was an active member of the Bonaparte Indian Band for her entire adult life and lives on the reserve with herhusband. [36] Counsel referred to the sentencing principles in R. v. Gladue, (SCC), 1999 1 S.C.R. 688 at paragraph 69: 69 In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender.

Whilebackground and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is calledupon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a partin bringing the particular offender before the courts.

In cases where such factors have played a significant role, it is incumbent upon thesentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in asense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencingprinciples will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occurthrough other means. [37] By way of reference to paragraph 66 of the Gladue, supra decision, Mr.

Rines argued that there were two broad categories ofconsideration in assessing the circumstances of an aboriginal offender, including the unique system of background factors which mayhave played a

part in bringing that offender before the courts, and the types of sentencing procedures and sanctions appropriate in thecircumstances because of the offender’s aboriginal heritage or connection. [38] The reference to “or connection” relates back to the aboriginal heritage, and not the social connections.

The Supreme Court didnot revert back to this qualifier in its decision but did say this at paragraph 71: 71 The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, asdifferent issues and different conceptions of sentencing are addressed in their appropriate context. In general terms, restorative justicemay be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts theharmony which existed prior to its occurrence, or at least which it is felt should exist.

The appropriateness of a particular sanction islargely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closelyaffected by the crime. See generally, e.g., Bridging the Cultural Divide, supra, at pp. 12-25; The Justice System and Aboriginal People,supra, at pp. 17-46; Kwochka, supra; M. Jackson, "In Search of the Pathways to Justice: Alternative Dispute Resolution in AboriginalCommunities", [1992] U.B.C. L.

Rev. (Special Edition) 147. [39] It is clear that what the court is considering is not so much whether a person who is not aboriginal may claim a connection akinto heritage, but that there may be connections apart from heritage which also must be taken into consideration for an aboriginal person. [40] The Supreme Court of Canada elaborated on the sentencing considerations in R. v.

Ipeelee, 2012 SCC 13 , 2012 S.C.C.13 at paragraph 60: 60 … To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schoolsand how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates ofsubstance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do notnecessarily justify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding andevaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualized information before thecourt in every case, unless the offender expressly waives his right to have it considered… [41] In Ipeelee, the Supreme Court also emphasized that the factors do not need to be tied to a particular offender or a particularoffence unless the unique circumstances bear on culpability or assist in identifying the appropriate sentencing which is clarified atparagraph 83: 83 … Systemic and background factors do not operate as an excuse or justification for the criminal conduct.

Rather, they provide thenecessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in someway to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability forthe offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [42]

Section 718.2(

e) of Criminal Code specifically provides for sentencing considerations for aboriginal offenders. That sectionreads: A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[43] Aboriginal offender is not defined in the Code. [44] Mr. Rines also highlighted decisions which have assessed circumstances where the offender was unaware they were aboriginal,never self-identified as aboriginal, or had no connection to the offender’s heritage. The court found that those circumstances requiredflexibility in application of the Gladue factors: R. v. Demmons, 2016 BCPC 363 , 2016 B.C.P.C. 363 and R. v. Kreko, 2016ONCA 367 , 2016 O.N.C.A. 367. I note that in Demmons, the court observed a number of the adverse factors that affectaboriginal offenders in general were present.

This included familial dislocation and fragmentation, abandonment by Mr. Demmons’father, and a later pattern of self-medication. Childhood poverty and lack of stability in the home were also cited as factors. A lack ofparental role models and mentoring, as well as criminal involvement and incarceration, alienation from his indigenous family anddislocation from his aboriginal community. None of these are factors present for Ms. Antoine. [45] In Kreko, the accused was adopted by non-aboriginal parents, which he only learned when he was in his late teens.

His birthmother had suffered from a chaotic childhood and was a ward of the court when she gave birth to the accused. Having found his birthmother, he completed rehabilitative aboriginal programs and embraced his aboriginal heritage. The court held that the dislocation andloss of identity could be traced to systemic disadvantage and impoverishment extending back to his great grandparents which wasrelevant to his moral blameworthiness in the offences. This again is not the case with Ms. Antoine. [46] In recognizing that Ms.

Antoine does not face the same systemic origins as aboriginal offenders such as dislocation fromcommunity or colonialism, Mr. Rines argued many facets of her life are directly relevant to the Gladue considerations. Apart from beingan active member of the reserve on which she lives, she was supporting a residential school survivor despite his abuse of her and theracism she faced on reserve as a result of her own biological roots and legal status by marriage. She has raised two children who arebiologically part aboriginal and fostered two other children who are aboriginal.

In parenting these children, she had to support them inunderstanding their father’s challenges as well as the challenges they may face as a result of their heritage. [47] Mr. Balison correctly submitted that the court may consider many of the factors that Ms. Antoine has raised without applyingthe Ipeelee and Gladue factors. The court is required to consider all relevant background of Ms. Antoine and weigh it against all otherrelevant factors to sentencing. [48] Mr. Balison referred to R. v.

Elliott, 2015 BCCA 295 , 2015 B.C.C.A. 295 at paras. 10 through 12: 10 An offender's Aboriginal heritage can affect an appropriate sentence in two ways. First, the "unique systemic and backgroundfactors which may have played a

part in bringing the particular Aboriginal offender before the courts" may bear on the "moralblameworthiness" of the offender: R. v. Ipeelee, 2012 SCC 13 at paras. 72-73 [emphasis added].

Courts must take judicial notice of thehistory of colonization and racism that has embedded systemic difficulties and social and economic deprivation within the Aboriginalcommunity: Gladue at para. 83. 11 The systemic legacy of racism, colonization, and institutional discrimination is an important factor in considering an appropriatesentence, in part, because it bears on the voluntariness of an offender's actions: Ipeelee at para. 73.

While every person that commits acrime through intentional actions may be said to do so voluntarily, a fit sentence must acknowledge the effects an offender'scircumstances have on their moral blameworthiness. Just as the psychological impact of a troubled upbringing may affect the moralblameworthiness of any offender, so too can the unique circumstances of Aboriginal offenders help explain why the offender nowappears before the court. 12 The second way in which an Aboriginal offender's background can affect the sentencing decision is in the "effectiveness of thesentence itself": Ipeelee at para. 74.

Aboriginal offenders may enter the criminal justice system with a "fundamentally different worldview", such that traditional incarceration does not achieve the purpose of assisting in rehabilitation in the same way it would for a non-Aboriginal offender: Ipeelee at para. 74. This must be taken into account when crafting sentences. [49] The relevant considerations to be highlighted here when applying the Ipeelee factors is that it is the unique systemic andbackground factors that may have played a

part in bringing the offender before the courts. The court also highlighted the systemic legacyof racism, colonization and institutional discrimination as important considerations of what those unique systemic background factorsmay be. Finally, at paragraph 12, the court highlighted from Ipeelee whether a sentence was effective given the fundamentally differentworld view held by some aboriginal offenders. [50] Whatever Ms. Antoine’s background factors may have been, she did not have any of the Gladue or Ipeelee factors in play at thetime of her original offending.

She also does not have in her upbringing or early adulthood the systemic legacy of racism, colonization orinstitutional discrimination that may have had a bearing on her actions. [51] As Mr. Balison argued, the history relating to the aboriginal heritage is one which translates into systemic disadvantages such aslower education, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration foraboriginal people. None of this applies to Ms. Antoine.

Indeed it is difficult from her submissions and the pre-sentence report to identifythat anything in her heritage or upbringing were factors so much as her current sense of unfairness, mistreatment and sense of beingoverwhelmed. [52] Gladue, Ipeelee and s. 718.2(

e) of the Criminal Code serve to expand the sentencing considerations to a person who hasacquired status as an aboriginal person by way of marriage. The systemic factors are absent in such a person as Ms. Antoine. Certainlyall of her other factors both mitigating and aggravating are to be considered. This would include the circumstances in which she hasfound herself these last few decades.

However, these considerations can be factored into sentencing without extending the very specificand purposeful Gladue and Ipeelee principles meant to be encompassed specifically in s. 718.2(e). [53] There have been different figures identified by the Crown as loss suffered by the Band. The original figure identified wasapproximately $116,000 but the Victim Impact Statement provided by Chief Day identifies a figure closer to $175,891. Those losses arebroken down as $126,600 in payments taken by Ms.

Antoine, $13,216 of costs to the Bonaparte Indian Band for staffing, related to anaudit of the losses, and $36,075 for the forensic audit costs. Unfortunately, the letter does not distinguish between the costs of the annual

audit that would have to be conducted anyway and those that were directly related to the forensic component of this audit. Absent that information, I can only be satisfied that the loss to the Band was $126,600. I appreciate that the losses had to have been more significant given that the forensic audit had to be conducted. However, that evidence is not before me. There will be a free-standing restitution order in favour of the Bonaparte Indian Band in the sum $126,600. [ 54 ] It may well be the case that the Bonaparte Indian Band will not be endangered if Ms. Antoine does not serve a jail sentence.

However, I must bear in mind that general deterrence is essential to preventing others from committing a similar offence causing similar harms. In other words, I must bear in mind the caution against dilution of the general deterrence principle. In Ms. Antoine’s case, there are significant factors in her background which must be considered in determining a fit sentence. This is particularly of importance where rehabilitation is factored in. She had a number of years of her marriage where she was subjected to domestic abuse and her husband’s alcohol addiction.

She was immersed in a community which suffered the consequences of colonization and the residential school experience. Whether it was a fair reflection, she felt that she was being treated unfairly because she is Caucasian. All of these may well be background factors that led her to offend in such a significant manner against her community and her employer. As a result of her actions, she lost her employment. She still has a source of income in her own old age pension and her husband’s income.

She has started to repay the significant sum she has lost but has no real plan in place or any real prospect of repaying the very significant sums she stole. While she is taking counselling, there is no clear counselling plan other than prospects for getting into treatment and continuing the counselling she has been taking. Ms. Antoine recognizes the benefit of restorative justice and would have, but for the reluctance of the community and the illness of the elder, engaged in that process. She has suffered embarrassment and social isolation as a result of her actions.

She has also entered a guilty plea and acknowledged her offence without the necessity of going to trial. These are all factors for me to consider when imposing the appropriate sentence. [ 55 ] I am not satisfied that suspending the passing of a sentence is appropriate in these circumstances. There was a very significant harm done to a vulnerable community and a breach of trust of Ms. Antoine’s employer. The impact is more far reaching than the sum of money lost. It would not be a fit sentence even with a significant period of probation as sought by Mr. Rines.

Certainly probation is necessary from a rehabilitative perspective but there must be not only specific but general deterrence reflected in a fit sentence. With a conditional sentence order and its significant repercussions if a breach of the terms were committed no longer available, I am satisfied the only fit sentence is one of incarceration. I impose a sentence of 12 months jail. This will be followed by a period of 18 months of probation. I have not heard submissions from counsel on the appropriate probation terms and invite them to make those submissions now. ____________________________ S.D.

Frame Provincial Court Judge