R. v. Gillis, 2019 BCPC 174

Citation: R. v. Gillis 2019 BCPC 174 Date: 20190627 File No: 12201 - 1 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TAMMY TERESA GILLIS ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: P. Swartz Counsel for the Defendant: G. Rivard Appearing by telephone: D.Soules, Owner/Operator Dushay Welding Ltd. Place of Hearing: Fort Nelson , B.C. Date of Hearing: June 26, 2019 Date of Judgment: June 27, 2019 [ 1 ] THE COURT: This is my decision on the R. v. Tammy Teresa Gillis matter. Ms.

Gillis is charged on Information 12201 with counts of theft and fraud over $5,000. She has pled guilty, in Count Number 2, to the charge of fraud over $5,000, contrary to s. 380(1) (

a) of the Criminal Code . The victim of that fraud was her former employer Dushay Welding Ltd., a company owned by Mr. Soules. The amount lost by the company was $213,225. [ 2 ] The Crown seeks a penalty of three years' imprisonment in a federal penitentiary and a standalone restitution order under s. 738 of the Criminal Code for the full amount of the money lost. The Defence takes the position that Ms. Gillis should serve a suspended

sentence and three years of probation. Circumstances of the Offence: [ 3 ] Ms. Gillis was hired as a bookkeeper office manager by Dushay in September 2016. Over approximately the next 15 months, until she was discovered in December 2017, she defrauded Dushay in the following ways:

a) using owner pre-signed cheques to her benefit in a variety of ways;

b) manipulating the payroll software to obtain more vacation pay and other benefits than she was entitled to;

c) overcharging for her hours of work and the applicable salary that went along with it. [ 4 ] There were many transactions made and attempts to keep the losses hidden from Mr. Soules, the owner of Dushay. There was a level of sophistication needed to manipulate the corporate software and to hide the losses that were being incurred. Use of Crime Proceeds: [ 5 ] The Court was advised that all the money taken by Ms. Gillis has now been expended. She has no further liquid resources.

She has not worked since December 2017, and she has not made any attempts to pay restitution. [ 6 ] The Court was told that she used the money for living expenses for herself and her family and also that she used it to purchase clothing and accessories. It is also suggested that she used the money for personal grooming and esthetic matters and to give cash gifts to her adult children in an amount of between $50,000 and $60,000. Finally, it is accepted that Ms. Gillis used some of the money for holiday trips to Alberta and Newfoundland. The Investigation: [ 7 ] Mr.

Soules brought his concerns to the RCMP in December 2017. A forensic accounting was undertaken soon thereafter to verify the losses incurred by Dushay. In early January 2018, Ms. Gillis gave a statement to the RCMP admitting her behaviour but underestimated the total amount taken. The information in this matter was sworn in July of 2018. [ 8 ] There was a delay in Ms. Gillis agreeing to plead guilty to this matter because Defence Counsel needed time to review the extensive evidence to satisfy himself that the Crown's case was provable and strong. Victim Circumstances: [ 9 ] Dushay is owned by David Soules.

It is a small family-run business but does have some employees. Times were difficult in the Fort Nelson area in 2016 and 2017, due to a general downturn in the oil and gas sector and, hence, the Fort Nelson economy. Mr. Soules worked extra hard to keep his company viable, including incurring personal debt and taking on additional duties that he would normally have contracted out to others. [ 10 ] Mr. Soules provided a victim impact statement by way of a letter dated January 3, 2018, in which he describes the following:

a) that Ms. Gillis was placed in a position of trust and she breached this trust by her actions;

b) that Mr. Soules made many personal efforts to salvage the company and to ensure that his employees continued to have a job;

c) that there were effects on Mr. Soules' health from the stress over concerns about Dushay's viability and its employees;

d) Ms. Gillis would ask him how he was planning to meet the company's creditor's demands and payroll while she was stealing and spending the money on herself, in a very overt way, right under his nose. Civil Proceedings: [ 11 ] The Court was advised that Dushay has commenced some civil proceedings in the B.C. Supreme Court against Ms. Gillis and that there has been a lien placed against her home. There has been no resolution yet to those civil proceedings. Ms. Gillis' Circumstances: [ 12 ] Ms. Gillis is 43 years old and has lived in Fort Nelson for 22 years.

She has two adult children, now age 25 and 23, who live in Fort St. John. The Court was advised that they are special needs people and there were extra expenditures required by Ms. Gillis while they were still living with her in Fort Nelson. [ 13 ] She has a steady work history in Fort Nelson, but, in 2010, as the result of an acrimonious and, as described by her counsel, an unfair divorce settlement, she fell into economic hard times. She lost her job in the economic downturn that affected Fort Nelson and, for some time, held many part-time positions in order to keep herself financially afloat.

She secured a job at Dushay in 2016. [ 14 ] The Court was advised that she has a new spouse, and that person has been in court with her to support her. [ 15 ] Ms. Gillis has no criminal record. Sentencing Principles: [ 16 ] A conditional sentence order is not available in this case, given the nature of the maximum penalty for the offence, as described

in s. 742.1(

c) of the Criminal Code. In addition, there are some statutory aggravating factors described in s. 718.2(a)(iii), namely abreach of trust, and (iii.1), namely the significant impact on Mr. Soules and his company due to his age, health, and financial situation. [17] Although the victim of this case is technically Dushay, the Court still considers the effects of the aggravating circumstances asit affected Mr. Soules, as the principal of the company, and as described in his victim impact statement. [18] There are also further aggravating factors set out in s. 380.1 of the Criminal Code, some of which apply here, including: (

a) the magnitude, complexity, duration, degree of planning and whether or not it was significant; and (c.1) significant impact on the victims given their personal circumstances, age, health and financial situation. [19] In addition to those principles, there are also the general sentencing principles described in s. 718 of the Criminal Code; 718.1of the Criminal Code, which talks about the gravity of the offence and the degree of responsibility of the offender; and 718.2(

b) of theCriminal Code, which requires the Court to consider a similar sentence, similar to other similar offenders in similar circumstances. [20] Counsel provided case law to the Court to assist in its decision. The Crown provided the following cases: (

a) R. v. Unrau, 2006 BCPC 311 , 2006 BCPC 0311; (

b) R. v. Yates, 2002 BCCA 583; (

c) R. v. Castro, 2010 ONCA 718; (

d) R. v. Nanos, 2013 BCCA 339; (

e) R. v. Bodnarchuk, 2008 BCCA 39; (

f) R. v. Copeman, 2017 BCSC 1360; and (

g) R. v. Sadler, 2009 BCCA 386. [21] Defence Counsel provided the following cases: (

a) R. v. Andrew, 2017 BCSC 2288; (

b) R. v. Johal, 2018 BCPC 360; and (

c) R. v. Keatley, 2009 BCPC 249. Ms. Gillis' Statement to the Court: [22] After submissions of counsel, Ms. Gillis provided her statement to the Court, which included the following comments:

a) that she was not making any excuses for her actions;

b) that she was prepared to accept the Court's decision on punishment;

c) that she takes full responsibility for any grief brought on to Mr. Soules;

d) that she was financially overwhelmed at the time and used the money for family expenses;

e) that she has some medical issues now, including diabetes, and mental health issues, and some items that may require medicalsurgical intervention in the near future;

f) she is now in bankruptcy; and

g) she is not certain what employment prospects she may have in the future. Submissions: Crown: [23] The Crown submitted that it is important in cases like these for the Court to denounce and deter the conduct of the offendingparty (see Unrau); the Court should consider the statutory aggravating factors, as I have already described; and there are otheraggravating factors in this case pointed to by the Crown, including:

a) the significant amount of money taken;

b) the sophistication in manipulating the payroll software;

c) that money was taken on numerous occasions;

d) that money was taken over a considerable period of time; and

e) that there has been no expression of remorse by Ms. Gillis up to this sentencing date; and

f) there have been no attempts by Ms. Gillis to provide any restitution. [ 24 ] The Crown acknowledged that there are some mitigating factors in this matter, including:

a) Ms. Gillis was cooperative with the RCMP;

b) that she entered a guilty plea. [ 25 ] But the Crown says that should be tempered and given less weight than may otherwise be the circumstances because of the trauma visited upon Mr. Soules and the fact that the Crown had a strong case. The Crown, however, does acknowledge that five days of court time have been saved. [ 26 ] The Crown submits that Ms.

Gillis' lack of a criminal record is not a mitigating factor. [ 27 ] On the matter of possible restitution, the Crown referred the Court to a number of cases and submitted that the Court must consider the issues surrounding restitution, particularly as described in Yates . Defence : [ 28 ] Defence Counsel did not dispute the aggravating factors pointed out by the Crown. However, Defence Counsel did point to mitigating factors, including:

a) that Ms. Gillis has no criminal record;

b) that she has entered a guilty plea;

c) that she feels shame and remorse and that she has been under a self-imposed house arrest since the matters came to light;

d) that Ms. Gillis recognizes the large impact on Mr. Soules and Dushay; and

e) that the cases provide a wide range of possible sentences, even in circumstances where there are large amounts of money taken over an extended period of time. [ 29 ] Defence Counsel submitted that had a Conditional Sentence Order been available in this case he would have proposed that form of penalty, but, since one is not available, he submits that a suspended sentence and a Probation Order is both appropriate, adequate, and just. Discussion : [ 30 ] Based on the tests set out in the Unrau case, the Court makes the following findings:

a) That denunciation and deterrence are the primary sentencing principles to apply here and that deterrence must be both general and specific. Some of the specific deterrence in this case is as a result of Ms. Gillis' notoriety within the Fort Nelson community.

b) Ms. Gillis' previous good character is not a mitigating factor. It is precisely because of her good character and that Mr. Soules required someone who was trustworthy that he hired Ms. Gillis.

c) There was a large amount of money taken over a period of 15 months, which is a considerable period of time, with a moderate level of sophistication taken by Ms. Gillis to remain undetected and to manipulate the payroll software.

d) The statutory aggravating factors set out in s. 718.2 and 380.1 must and have been considered by the Court.

e) Ms. Gillis benefited greatly from the fraud and the loss was of great consequence financially to Dushay and personally to Mr. Soules.

f) Ms. Gillis has no criminal record. She did cooperate with the RCMP and did indicate early acceptance of responsibility. She has not made any attempts at restitution and she has made no indications of remorse prior to her appearance at the sentencing hearing. [ 31 ] There is also the issue of possible civil liability, which must be considered in arriving at a just and fit sentence. The Crown provided Sadler to assist the Court in that regard. Neither counsel spent much time on the nature of the civil proceedings or their possible impact on Ms. Gillis, other than the lien on her home.

The Court was advised of Ms. Gillis' bankruptcy, but no documents concerning that matter were provided. [ 32 ] Overall, the Court, in these circumstances, gives very little weight to the potential implications of any civil proceedings on Ms. Gillis in addressing the possibilities of a restitution order as part of an appropriate sentence in this case. Restitution : [ 33 ] Restitution orders may serve both a punitive and rehabilitative purpose. The latter being described in s. 718 (

e) and (

f) and as set forth in Yates . [ 34 ] In deciding on whether a restitution order is appropriate, the Court must consider the amounts at issue and the means of the offender to pay the amounts in exercising its discretion. A restitution order should not be made if the impact would cause financial ruin to the offender. However, the ability of the offender to pay the restitution is only one factor and not necessarily the predominant one.

[35] Given that any restitution order is part of an overall sentence, it should not be "a mechanical afterthought" imposed after thesentence is fixed, because that might result in an excessive sentence. (See Castro) [36] The range of sentence in this case is broad. Like any other case that comes before the Court, there are ranges of sentence. Basedon the cases presented here, the range varies from a suspended sentence to a federal sentence of up to six years.

The extensive case lawreviewed, as described in Copeman, Andrew, and Keatley, all provide some assistance to the Court, but, at the end of the day, each caseand its circumstances are unique and must be treated as such. [37] It is commonly accepted that sentences imposed in other cases may be of limited assistance in determining a fit sentence. Thiswas discussed by the Supreme Court of Canada in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, where the Court said, atparagraph 92: Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For [those] reasons,consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene tominimize the disparity of sentences [if] the sentence imposed by the trial judge is in substantial and marked departure from the sentencescustomarily imposed for similar offenders committing similar crimes. Also earlier, at paragraph 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic [core] values as enshrined within our substantive criminal law. As Lord JusticeLawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particulartypes of crime, and the only way in which the courts can show this is by the sentences they pass".

The relevance of both retribution anddenunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penaltiesdesigned to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Ourcriminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values arecommunicated.

In short, in addition to [attracting] negative consequences to undesirable behaviour, judicial sentences should also beimposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the CriminalCode. [38] The Supreme Court of Canada revisited the role of the sentencing judge in R. v.

Nasogaluak, 2010 SCC 6, where the Court said,at paragraph 43: The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case . . .

No one sentencing objective trumps the others and it falls to the sentencingjudge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance ofany mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

Thejudge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures thateach case is decided on its facts, subject to the overarching guidelines and principles [of] the Code and . . . the case law. [39] The concept was further addressed by the British Columbia Court of Appeal in R. v. Voong, 2015 BCCA 285, at paragraphs 6and 7, where the Court said: [6] Imposing a sentence for criminal conduct is in the purview of judges in the trial courts.

It is an individualized process, in that asentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moralblameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [7] Much has been written about the philosophical principles that underlie our present day sentencing ideology. For centuries,philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment.

As a result, thelaw has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation,and all that must be considered by the judge who has to determine a “fit” sentence for the offender before him or her.

It is not an easytask, and not a task that should come under microscopic scrutiny [by] the appellate courts. [40] Although it was not submitted by Defence Counsel as such, there are both rehabilitative and punitive aspects of a probationorder that must be considered if the Court is able to find that there are exceptional circumstances that would permit a suspended sentenceand probation. That topic was discussed by the British Columbia Court of Appeal in Voong and in R. v. Leclerc, 2017 BCCA 228. [41] Cases in which exceptional circumstances are found are rare.

Not every case that has some or even many unique aspects meetsthe test, as described in Leclerc and Voong, for finding of unusual, special, or exceptional circumstances. [42] It is incumbent upon a defendant to raise the issue of exceptional circumstances and to provide submissions linking the facts ofthe case and the defendant's personal circumstances to the factors that amount to exceptional circumstances as described by the Court ofAppeal.

The onus falls to the defendant and not to the Crown to satisfy the Court with regard to the existence of exceptionalcircumstances and that they are sufficient to result in a sentence different from what the general outcome might otherwise be. [43] In Voong, the Court of Appeal, in addressing the issue of exceptional circumstances, discussed suspended sentences, conditionalsentence orders, and probation as various tools a court can consider in arriving at a just and appropriate sentence.

[ 44 ] On the topic of the deterrent effect of probation, the Court said the following, at paragraphs 37 through 39: [37] A probation order has primarily a rehabilitative objective, however, as the statutory terms refer to the purposes of “protecting society” and “reintegration into the community”, it is not limited to this objective. [38] What is required for the imposition of an optional condition in a probation order is a “nexus between the offender, the protection of the community and his reintegration into the [society]” . . . [39] A suspended sentence has been found to have a deterrent effect in some cases.

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “ Sword of Damocles” hanging over the offender’s head . . . [ 45 ] With regard to what factors may result in the determination of exceptional circumstances, the Court said, at paragraph 59: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

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

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 46 ] The concept of exceptional circumstances was again referred to in Leclerc , where the Court of Appeal noted those circumstances have also been described as unusual or special. In overruling the trial judge's decision to grant the co-accused Mr. Lamar a conditional sentence order, the Court said, at paragraphs 31 and 32: [31] In my respectful view, the judge erred in his characterization of circumstances in respect to both Mr. Lamar and Mr. Leclerc as exceptional.

They are not circumstances that have any unusual or special aspect of any force. [32] Concerning Mr. Lamar, the judge first referred to Mr. Lamar’s remorse, his lack of a prior criminal record, the reliance of Mr. Lamar’s mother upon his assistance, and the negative impact incarceration would have upon Mr. Lamar’s business and the employment of his employees. These circumstances simply are not exceptional, unusual or special. While remorse and lack of a criminal record are mitigating circumstances, they are common and do not rise to any unusual level.

Nor do I consider that the negative effect of incarceration on Mr. Lamar’s family and employees described by the judge can be characterized [in] that way. Such negative consequences of this scale are common unhappy effects that often spill out from [a] criminal conviction. [ 47 ] In this case, the Defence did not raise the prospect of exceptional circumstances. However, even if this topic had been argued, the Court would not have concluded that exceptional circumstances exist in this case.

Nevertheless, the concept of a probation order as part of the overall sentence must be carefully considered. [ 48 ] After consideration of Ms. Gillis' circumstances, the circumstances of her offending, the effect her offending has had on the owner of Dushay, Mr. Soules, provisions of the Criminal Code , the case law provided, and counsel's submissions, the Court does not accept either the Crown's or the Defence position regarding sentencing. [ 49 ] Ms. Gillis, please stand up.

I have determined that jail is required here, but it must be tempered by the concurrent restitution order I am going to make so that it is not overly harsh. Restitution Order : [ 50 ] There will be a standalone restitution order pursuant to s. 738 of the Criminal Code in favour of Dushay Welding Ltd. in the amount of $204,225. Sentence : [ 51 ] Ms.

Gillis, on Information Number 12201, Count Number 2, I sentence you to a sentence of two years less one day imprisonment in a provincial jail, followed by three years of probation. [ 52 ] The probation order will have the following terms and conditions: 2001: You must keep the peace and be of good behavior. You must appear before the Court when required to do so by the Court.

You must notify the Court or the probation officer, at least two days in advance, of any change of your name or address and promptly notify the Court or the probation officer of any change of employment or occupation. 2002: You must have no contact or communication, directly or indirectly, with David Soules, except as provided for in this probation order or the restitution order. 2005: You must not go to or be within 50 metres of any residence, school, or workplace of David Soules, and, particularly, you shall not be found within 50 metres of 5327 48th Avenue, Fort Nelson, British Columbia. 2104: You must report in person to a probation officer nearest to the place of your release from custody within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe, and, after that, you must report as directed by the probation officer. 2203: You must reside at a residence approved in advance by the probation officer.

You must provide your probation officer with your

phone number and you must not change your residence or phone number without written permission from your probation officer. 2513: You must pay restitution in the amount of $9,000 to the clerk of the Court for the benefit of Dushay Welding Ltd., payable in monthly installments of $300 each, payable on the 1st day of each month, starting on the fifth month following your release from custody and continuing until such time as the restitution is paid in full. 2621: Before seeking, obtaining, or continuing any employment or becoming a volunteer in any capacity that involves having authority over the real property, money, or valuable security of another person or corporation, you must inform the employer or organization about this conviction. [ 53 ] You may have a seat for a moment. [ 54 ] By way of explanation to Mr.

Soules and to the Crown, I have made $9,000 of the debt or the loss payable during the probationary period in monthly instalments. That is to encourage Ms. Gillis to get out and get employment and make some payments. The remainder is a standalone restitution order. To be fair, in the circumstances, to Mr. Soules, I think the likelihood of him ever collecting that will depend on whether or not he ever sees Ms. Gillis' face on the front page of the newspaper having won a large lottery winning. [ 55 ] Ms. Gillis, please go with the sheriffs. [ 56 ] Anything further, Mr. Rivard? [ 57 ] MR. RIVARD: No, Your Honour.

Thank you. (REASONS CONCLUDED)