R. v. Aitchison, 2012 ONCJ 670

Information No. 11-1585, 12-27 Citation: R. v. Aitchison , 2012 ONCJ 670 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WAYNE AITCHISON R E A S O N S F O R J U D G M E N T A N D S E N T E N C E BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on September 27, 2012, at ORANGEVILLE, Ontario APPEARANCES: J. Rodger Counsel for the Crown A. MacKay Counsel for W. Aitchison R E A S O N S F O R J U D G M E N T PUGSLEY, J. (Orally):

Wayne Aitchison is before me for sentence on a count of Fraud over $5,000. The fraud was committed against his employer. The defendant was in charge of purchasing supplies for his long-time employer, a relatively small family-run company. He used company money to buy compressor oil from a non-arm’s length company. The oil was never delivered and was never intended to be delivered. Instead, the employer paid the fake invoices and the money went to the company associated with the defendant. The fraud took place over a three year time frame. In 2010, it was discovered by the company and the defendant was discharged.

The company’s lawyers sent the information to the police in mid-2011, and the defendant was charged. He has paid $60,000 in restitution. He has entered a plea of guilty. Mr. Aitchison has no criminal record. A Pre Sentence Report was prepared and filed. Before plea, the Crown and defence discussed the position that each would take on sentencing. The Crown position, given the plea and restitution, was for an 18 month conditional sentence of imprisonment. The defence joins in that submission.

At the sentencing hearing, the Crown received the Pre Sentence Report and then expressed misgivings as to the earlier position that had been taken on sentencing. Most disquieting to the Crown was the observation by the author of the Pre Sentence Report that the defendant’s current employer, the City of Toronto, is unaware of the charge and now conviction, here. The defendant did not tell them of the then outstanding fraud, from a position of trust, and refused to give his consent to allow the probation officer to contact the City.

The Crown notes that the report places the defendant’s duties with the City library system as a Contract Manager, and he is also the Chair of the United Way campaign, associated with that position. The author of the report and the Crown submission expressed a worry that the defendant’s past fraudulent behaviour could be revisited on his current employer. The balance of the report and the submissions of the defence are quite positive. The defendant is well-liked in the community and is described as an honourable man, who is always trying to help, as they said in one case, his fellow man.

These opinions are ultimately of little use in this sentencing. The community at large knows nothing of the dishonest and profoundly dishonourable actions of the defendant, acts that were spread out over some three years and involving planning and deliberation in set-up and in execution. Even now the defendant seeks to hide his criminal conduct from his current employer, choosing to frustrate the completion of a comprehensive Pre Sentence Report by favouring his own self-interest instead.

In the report and in submission, the defendant seeks to explain, if not excuse, his criminal acts, by clothing them in the guise of helping the widow of his friend. Notably, his help led to her also being criminally charged, although in the end, those charges were withdrawn as against the other two defendants. It is not surprising that the Crown Attorney had some second thoughts when she reviewed the Pre Sentence Report here since the report discloses little sympathy for the victim, or remorse beyond the shame that he has brought to his own family and friends.

Indeed, the report is a poor report, clothed in the guise of a positive report. It is reasonable to conclude that the only remorse truly held by the defendant is that he was caught. Theft from a position of trust generally requires that a Court seriously consider a period of incarceration. The more complex the fraud, the more likely it is that a substantial jail sentence will be meted out, to deter the defendant, and others, from breaching the trust placed in them by their employer. Paragraph 380.1(1) (

a) of the Criminal Code was amended after the offence date here, to codify this principle of sentencing. Mr. Aitchison stole $60,000 from his long-time employer. He did so by creating fraudulent purchase orders for non-existent supplies from a non-arm’s length company and he did so over a period of nearly three years. The nature of the defendant’s outwardly good reputation helped him in committing this fraud. These are aggravating features to be considered by me on sentence.

In mitigation, the defendant has no prior record, has made restitution of the full amount of the proven fraud and has entered a plea of guilty, accepting responsibility before the Court, before his family and before the community for his criminal acts. His counsel submits that he does not handle money in his new job, nor as the Chair of the charity campaign. The defendant does not object to a term in any conditional sentence order and probation that prevents such a role in the future. As the Crown and defence both submit, incarceration is required on the facts of this case.

The real question is whether that incarceration may be in the community or whether a bricks and mortar jail setting is required. A conditional sentence of imprisonment is an available sentence. The Crown agrees that any sentence of jail would be, in any event, less than two years. Defendants coming before a Court for a plea of guilty understand that, while the sentencing judge will hear the submissions as to sentence of both the Crown and defence, the final sentencing decision rests with the judge and the judge alone.

When a joint submission as to sentence is made to the Court, the presiding judge must explain why he or she is departing from the joint recommendation of counsel, if she or he decides to do so, whether by a lesser sentence or by a higher sentence. The first question for me here is whether I am faced with a joint submission. I conclude that I am. While the Crown expressed disquiet or disappointment in the context of the Pre Sentence Report, the Crown stopped short of reneging on the sentencing position discussed between counsel before the defendant decided to plead guilty.

The Crown Attorney, in the highest traditions of that role, placed a joint submission before me while expressing her concerns to me. Sentencing positions are taken daily across this country by prosecutors and defence counsel. Each party must trust the other when positions are taken or the process of resolving criminal charges short of a trial would be in a shambles.

If the Crown position was stated as a conditional sentence and was the basis for the defendant’s decision to resolve the charge, then the defence counsel must be able to tell his or her client that that is the position the Crown will advance to the Court on sentencing. The judge is never bound by the submissions, but the Crown must generally be so bound. Therefore, in the instant case, the Crown and the defence have placed a joint submission before me of an 18 month conditional sentence of imprisonment. Even a joint submission cannot tie my hands as to the proper sentence.

Such a position, however, ought to be treated with considerable deference by the Court and a departure from the joint position of counsel, must be in the greater public interest and must be explained by the Court. Judges must always recall that when counsel formulate a position on a plea of guilty, the judge does not always know all of the facts in the background leading counsel to that conclusion. Here, in particular, I am presented with the thoughtful joint position arrived at by two very competent and highly experienced counsel.

A lengthy reformatory sentence would have been equally applicable to this defendant on these facts. Counsel instead recommend a sentence to be served in the community. A conditional sentence is nonetheless a sentence of incarceration. Such a sentence also serves to give effect to Subsection 718 (

c) and 718.2 (

d) of the Criminal Code , which leave the deprivation of a subject’s liberty as a last resort on sentencing. In my view, I may follow the joint submission here, without engaging the risk of the public losing faith in the justice system. A reasonable person, knowing all of the circumstances of the offence and the offender, will find this sentence to be fit, in my view.

To further underline to the defendant and to the community, the profound repugnance of society for his breach of trust here, and to protect the community from this defendant, electronic supervision will be ordered during the period of house arrest, and a further period of probation will follow imprisonment. While considered an honourable man to his friends and to his family, in the end, the defendant is nothing more or less than a thief. Would you please stand, sir? The sentence of the court is that you be imprisoned for 18 months.

This sentence will be served in the community, subject to the following conditions: You will keep the peace and be of good behaviour; you will appear before the Court

when required to do so by the Court; you will report within two working days, in person, to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor; you will remain in the Province of Ontario unless written permission to go outside the province is obtained from the Court or the supervisor, and you will notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation. Those are the statutory terms in every conditional sentence order.

In addition, you will not be outside your residence for the first nine months of this order, except for the following purposes: To report to your supervisor; to comply with any condition of this order upon hours, places or

schedule as your supervisor may approve of in advance; for medical emergencies, appointments or procedures for yourself or a member of your immediate family, including, and Ms MacKay, the nephew’s name please. MS MACKAY: Joe Gallanger, last name is spelled G-A-L-L-A-N-G-E-R. THE COURT: That’s the young... MS MACKAY: His nephew. THE COURT: ...gentleman who is in the hospital? MS MACKAY: Yes, in Sick Kids. THE COURT: All right, so including that named individual as one of the individuals that you may attend upon for medical purposes; for legal appointments or appearances; for lawful employment upon such hours, places or

schedule as your supervisor may approve of in advance of such employment. I am going to suggest Saturdays, Ms MacKay for personal necessities. MS MACKAY: Yes, thank you. THE COURT: Each Saturday from 11 a.m. until 1:30 p.m., for the purpose of shopping for personal necessities; such other times with the prior written permission of your supervisor, such permission to be specific as to place, time and reason, and to be on your person when away from your residence. Is there a request with respect to religious observance? MS MACKAY: No, thank you.

THE COURT: For the second nine months of this order, you will abide by a curfew from 11 p.m. until 6 a.m. each day, unless for medical emergencies, appointments or procedures, for yourself or a member of your immediate family, including your named nephew; or (2) with the prior permission of your supervisor, specific as to time and place and reason, and to be carried on your person when outside of your residence. It is also a condition of your conditional sentence that you not associate or communicate directly or indirectly with John Palumbo, Nadia Rodrigues, do we have the first name of Mr.

Okawazo or Ms Hemphill? MS MACKAY: Ken and then the second concerns Debbie. THE COURT: Ken Okawazo or Debbie Hemphill, except through legal counsel. In addition, you shall report immediately to your supervisor or his or her designate for the purpose of arranging your enrollment in the Electronic Supervision Program. You shall participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor and/or designated electronic supervision resource officer for the purpose of monitoring your house arrest, home curfew, residence restriction, et cetera.

You shall be placed on electronic supervision for nine months. You shall permit the Ministry of Community Safety and Correctional Services staff and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the electronic supervision program, to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the Electronic Supervision Program equipment.

You shall make yourself available either by phone or in person as may be required at any time during house arrest, home confinement, curfew, and in particular, you shall answer the phone at any time during house arrest, home confinement or curfew, and present yourself to the Ministry of Community Safety and Correctional Services staff, police services, and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program, at the door of your residence at any time during house arrest, home confinement/curfew for the purpose of confirming your presence and compliance.

You shall reside at a residence approved of by your conditional sentence supervisor and/or designate and not change your address without prior permission of your supervisor. You shall permit the Ministry of Community Safety and Correctional Services staff and/or police services in your residence during the investigation of any alerts, either technical, i.e., transmitter battery low, or compliance issue, i.e, subject leaving during house arrest, generated while on the Electronic Supervision Program. Do you understand the terms, sir, of your conditional sentence order? WAYNE AITCHISON: Yes.

THE COURT: It is a serious matter to breach the terms of this Court order, sir. As your lawyer will tell you, one of the first and most immediate possibilities, if you are convicted of breaching this order, is that the entire balance of the 18 months sentence then left may be converted to real jail with clanging steel doors. Do you understand that, sir? WAYNE AITCHISON: It won’t happen. THE COURT: Thank you. If this order needs to be reviewed or changed, you can bring it back before the Court and ask the Court to consider changing the terms that I have just outlined.

You can do that through your lawyer or your supervisor, or even by coming to the counter yourself and asking the Court to consider changing the terms of the order, and the Court will consider that request. In a few minutes you will get a copy of this order. Please make sure you understand your rights and your obligations fully. If you have any questions, take them up with your supervisor or your lawyer to clear those questions up. At the completion of your

sentence of imprisonment, you will be placed on probation for one year. The terms of your probation are as follows: You will keep the peace and be of good behaviour, return to court if required, you will report to and be under the supervision of your probation officer forthwith upon the completion of your imprisonment and thereafter as may be required by your probation officer. You will not hold a position on behalf of an employer and/or a charity that requires you to handle other people’s money. You will not associate or communicate with any person deemed inappropriate by your probation officer in writing.

I should indicate that I had noted two further restrictions on your conditional sentence order, sir, so they add to the terms that I just read out a minute ago. You will not attend at 37 Holland Drive in Bolton, Ontario and you will not hold a position on behalf of an employer and/or a charity that requires you to handle other people’s money. Do you understand those terms, sir? WAYNE AITCHISON: Yes. THE COURT: It is a serious matter, again, to breach this court order. If you do so and you are convicted, you could go to jail. Do you understand? WAYNE AITCHISON: Yes.

THE COURT: If the probation order needs to be reviewed or amended, you can bring that back before the Court and ask the Court to consider changing the terms of the order. You can do that through your counsel or your probation officer or again, by going to the counter yourself, upstairs, and making the request which the judge will consider. In a few minutes you will get a copy of the probation order as well as the conditional sentence order. Make sure, please, you understand your rights and obligations under that court order.

If you have any questions, take them up with your lawyer or your probation officer to clear those questions up. There weren’t any other ancillary orders sought in the submission? MS RODGER: Your Honour, I thought I had sought an order under 380.2 that his, in addition to any other sentence imposed, the Court would make an order prohibiting the offender from seeking, obtaining or continuing any employment or becoming a volunteer in any capacity that involves having authority over real property, money or valuable security of another person.

THE COURT: Yes, I considered that request and that is why I put those terms in the conditional sentence order and the probation order. MS RODGER: All right, thank you. THE COURT: I note as well that subsection postdates this offence date. The other counts? MS RODGER: I, I think there is a number of other counts, if they could be marked as withdrawn, please. THE COURT: All right. All the other counts are withdrawn at the request of the Crown. There will be some substantial paperwork for your client to sign upstairs in the main court office and some steps that he has to take immediately, Ms MacKay.

MS MACKAY: All right. Thank you, Your Honour. THE COURT: Go upstairs to the second floor main court office.