R. v. Pickering Date:, 2012 BCPC 213

Citation: R. v. Pickering Date: 20120426 2012 BCPC 0213 File No: 178706-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRANT JOSEPH PICKERING ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: K. Marks Counsel for the Defendant: D. Hill Place of Hearing: Surrey , B.C. Date of Hearing: April 11, 2012 Date of Judgment: April 26, 2012

[ 1 ] THE COURT : This is a difficult and serious sentencing with respect to your guilty plea on Count 2 of Information 178706- 1. INTRODUCTION [ 2 ] This is a sentencing on a fraud which is of significant magnitude. The offender, Mr. Pickering, victimized a family friend, L.A., who is in her 70's, by repeatedly lying to her over a period of approximately 17 months. L.A., a senior citizen and a widow, was a susceptible victim whose generosity of spirit led her to provide to Mr. Pickering all the life savings that she and her deceased spouse had acquired for the purposes of a comfortable retirement.

In addition, she accessed a line of credit on the equity in her home, as well as credit cards during the course of her providing money to Mr. Pickering. The total amount given to Mr. Pickering as a result of his numerous deceits was, it is agreed, $480,025. THE SENTENCING PROVISION [ 3 ] The sentencing provision in the Criminal Code is set out in s. 380(1) (a).

It provides for a maximum sentence for fraud over $5,000 of 14 years in prison and provides a significant amount of discretion to a court to sentence, of course, between the minimum, which in this instance would be a suspended sentence and probation, and that period of incarceration, as well as potential financial penalties. The sentencing is also governed by the legislation recently promulgated under s. 380.1, which provides that it is an aggravating feature of such a fraud if the fraud is of a magnitude, complexity, duration or degree of planning that was significant.

As a matter of fact, given the nature of this fraud, the method and means by which the deceits were promulgated, I am of the view that this is a sentencing which fits within s. 380.1. I would find so as a fact. THE FACTS [ 4 ] This matter is informed by a number of exhibits. In the course of the sentencing hearing some nine exhibits were filed, which included documents such as an accounting ledger maintained by L.A. over the course of 75 transactions, four of which were related to a real estate setup and 71 of which were related to false representations by Mr.

Pickering as to his ongoing medical expenses and medical needs. In addition to the accounting ledger, L.A. also prepared a journal. I have reviewed the journal. The journal is a significant document providing dates from June the 19th of 2006 to July the 24th, 2007. It is 120 pages in length and it documents, from her perspective, her side of the communications by telephone between herself and Mr. Pickering over that time span. [ 5 ] To put it bluntly, Mr. Pickering, during the course of those conversations, embellished, exaggerated and otherwise deceived L.A. about his health and his medical expense needs.

He made repeated requests for assistance for air ambulances. He made reference to requiring numerous surgeries involving either spinal surgery, leg surgery, arterial surgeries, or brain surgeries. He described being on the brink of death on many occasions. During much of his exchange with her he would express himself emotionally, weeping, crying. On other occasions he would tell L.A. that this was a good day and that he was being able to keep down either fluids or foods. [ 6 ] The number of representations reflect an almost daily litany from Mr.

Pickering of his ailments and the concerns of L.A. as reflected by her belief in the truth of those ailments, and her providing funds on a regular basis over the course of the time from June the 19th, 2006, when we had the first reference to the need for ankle surgery, to the subsequent micro bug issue from Vietnam and the spinal fluid issues and the numerous references to needing air ambulances to go to Detroit for surgeries on an emergency basis. [ 7 ] Those representations continued, as reflected in Exhibit 3, the journal, from the 25th of July 2007 to August the 20th, 2007. (The notes and representations relating to court cases and the acquisition of funds set out in Exhibit 5 and Exhibit 6, as well as the representations from January the 24th, 2007 to July the 27th, 2007 with respect to financial matters.) All of those representations in 2006 and 2007 relating to the medical needs culminated in a total amount being provided by L.A. of some $357,000 by bank transfer, which is supported by the bank drafts and calculated by the police and agreed to by counsel. [ 8 ] In all in the ledger, Exhibit number 1, there were 78 entries compiled by L.A.

As part of those entries there are significant points in that she makes reference to the June 19th, 2006, surgery in Winnipeg with a break to the left ankle in two places, the July 17th, 2006, reference to the needing for surgery because of micro bugs which had been given to Mr. Pickering in Vietnam and which would eventually kill him. There was the July the 27th spinal surgery, and then July the 28th, the movement to Detroit for surgery, July the 29th, the need for the first air ambulance.

It went on and on and on. [ 9 ] In addition, and separate from the references to the medical needs, there were as well entreaties made by Mr. Pickering to L.A. for her to assist him with respect to a business deal. The purchase of some real estate which was not proceeding in a timely fashion, and which required that she provide him with monies so that he would not lose the purchase of the property. Again L.A. believed Mr. Pickering.

Those representations which were made in May of 2006 and up to June and July of 2006 led her to forward to him by bank draft $90,000 on June the 6th, 2006, $5,000 on July the 5th, 2006, $23,000 on July the 13th, 2006, and a further $5,000 on July the 24th, 2006, for a total amount of $123,000. [ 10 ] All of the false representations came to a grinding halt in September of 2007. On September the 10th, 2007 in a conversation by telephone between Mr. Pickering and L.A., Mr. Pickering confessed.

He admitted that he was never in the hospital and that he had a company in Toronto called Forma Inc. selling commercial property. He told L.A. that he had used the money for advertising his company and then he continued with further representations relating to him being able to pay back all of the monies. Their last conversation took place in the year 2008, but Mr. Pickering has as well followed through, either through counsel or through persons who had owed him money, in providing funds to L.A. Those funds were forwarded to L.A. in September of 2011 as a result of Mr.

Pickering directing the RCMP to pay L.A. the sum of $80,000 for work done for the police. I take it that that was contract work, and in October of 2011 L.A. received that $80,000 from the RCMP. [ 11 ] Subsequently, Mr. Pickering has been employed. He is not making significant funds, but I am told of no other restitution which has been provided. It is a situation where he would ask the court as the form of an ancillary order to make a restitution order and

he has expressed not only his confession, but an apology and an intention to make restitution in full if he is able. [ 12 ] Those are the operative facts for the purposes of determining the nature of this fraud, the size, the magnitude, the complexity, the duration, the degree of planning and the number of lies and representations. ANCILLARY ORDERS [ 13 ] During the course of submissions it was made clear that Mr. Pickering does not oppose a restitution order in the amount of $400,025.

A stand-alone restitution order will therefore be made, Madam Registrar, pursuant to s. 738 of the Criminal Code in that amount. [ 14 ] In addition, although it is a discretionary matter, I heard nothing that would cause me not to order a DNA sample be provided. It is a matter of discretion pursuant to s. 487.051(3) of the Criminal Code , and given the nature of this being the fourth such offence I am of the view it is fit and proper for me to make such an order and I order that Mr.

Pickering provide a sample of his DNA to the appropriate authorities following today. [ 15 ] The victim fine surcharge of $100 will also be ordered. Mr. Pickering having been employed it is appropriate for me to make such an order. THE CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mr. Pickering is 58 years of age. He is married. He has three grown children from a previous marriage. His work history is varied and of some assistance in the court attributing a degree of realism to the restitution order granted. Mr. Hill has strongly submitted that we should be confident that restitution may be achieved in the case at bar.

Given the magnitude of the order I am not as confident, as the sum is significant and will take much time to pay and I am not sure that L.A. will have all of that time, given her stage of life. I know that that is one of the things about which she is concerned. [ 17 ] Mr. Pickering was raised in Thunder Bay, Ontario. Following graduation from high school he took a one-year management course at Confederation College. He has worked as a credit manager in a number of places. He worked for Household Finance in Winnipeg, Manitoba in 1972.

He was at Woolworth's/Woolco in their credit department for two years following that. In 1975 and 1976 he was in a similar position with the Bank of Nova Scotia, and following his work at the Bank of Nova Scotia he was a bailiff in Winnipeg to the year 1979. In 1979 I was told that Mr. Pickering came to Vancouver to work for Sign-o-light Plastics in their credit department. He remained there for three years. [ 18 ] He was then in the credit department for D-Line Courier for two years. He then started up his own business, P.L.

Security, in 1984, a company which he subsequently sold in 1986, I am told, for the amount of approximately $475,000. Mr. Pickering has operated a number of businesses over his work history, including a cheque cashing business from 1989 to 2001, which I was told had five stores. He also operated Security Parking in 1989, which I am told he sold as well for a significant sum of money, something around $450,000. [ 19 ] In the year 2001, Mr. Pickering either ran or was part of a company referred to as International Tracing. He has also been an employee for a tracing company from 2002 to 2004. Mr.

Hill submitted that he was instructed that Mr. Pickering was able to earn some $5,000 per month doing work for that tracing company. [ 20 ] I am told that in 2005 and 2006 Mr. Pickering ran into money problems, which led to his three fraud convictions in Ontario. Circumstances were he persuaded people to finance him in business ventures. Those convictions occurred in 2006 and are reflected in Exhibit number 9, the criminal record filed with the court. It is important to look at the nature of those frauds, given the nature of this offence. Mr.

Pickering was the uncle to the girlfriend of the victim in the first of those convictions, which was a fraud in the amount of $75,000. He, as well, defrauded a neighbour of some $4,500 in the second set of those three convictions, and the third was a matter involving some $12,700. Mr. Pickering pled guilty to those offences. [ 21 ] He received with respect to his plea at sentence in Ontario a conditional sentence order for a period of 12 months on all three matters.

What is significant for the purposes of this set of charges is that he was, with respect to those sentences, on that Conditional Sentence Order during the period of time in which he was defrauding L.A. Not only that, when one looks at the date of the conviction in Ontario and the sentencing and considers the amount of the defrauding and the question of restitution, it would appear that the $90,000 which was the first set of funds provided by L.A. to Mr.

Pickering would have provided full restitution for those offences in Ontario. [ 22 ] So, in relation to the circumstances of this offender, this fraud occurred while he was serving three jail sentences in the community while on a conditional sentence order for frauds, two of which involved people that he knew.

He was being permitted to serve his sentences in the community and he commenced this significant fraudulent course of action while being permitted to serve his sentence in the community. [ 23 ] As to the circumstances of the offender and the nature of this offence, I have found, on the course of the evidence before me, and particularly from reading the contents of the representations reflected in Exhibit 2, Exhibit 3 and Exhibit 4, that Mr. Pickering used a friendship of over 25 years to deceive and manipulate and take advantage of the decency and good graces of L.A.

The motive for his offence was referred to candidly by his counsel, Mr. Hill, to be "greed." [ 24 ] The circumstances of the offender are also highlighted by what I could refer to as mitigating aspects. He is married and has the stability of a marriage in the community. His health is not good. In 2006 he had heart stents put in in London, Ontario. In 2007 he had heart stents put in in Toronto, Ontario. That may have given him some of the information which would have allowed him to mislead L.A. as to the extent of his health issues.

He has, at present, ongoing treatment related to cardiac and what one could call blood pressure arterial issues. I am told he has had diabetes since 1979. He is on blood pressure medication. He is suffering from a swelling of the legs. I have not been told whether it has been diagnosed as phlebitis, but I have been told that he has recently been hospitalized for some four days and was discharged on the 21st of April from hospital care.

[ 25 ] He has worked in the year 2010 and 2011, which is significant when one looks at the nature of the charges that he was facing and what is transpiring with respect to his ability to make restitution. The charge to which he has pled was on an Information which was sworn on the 24th day of November of 2009. In the year 2010 Mr. Pickering earned $28,000 gross. In the year 2011 he earned approximately $30,000 gross. He has no assets. He is renting. If he remains healthy, I am told by Mr. Hill in Mr.

Hill's forceful submission, he can look forward to making up to $60,000 per annum if he returns to the tracing industry. One has to be cautious about being overly optimistic about his ability to earn in that capacity. VICTIM IMPACT [ 26 ] I have a Victim Impact Statement, Exhibit number 8, in this matter. From the materials and the recitation of facts by counsel, I have ascertained the following as it relates to the impacts on L.A. L.A. is a 75-year-old widow. As I said earlier, L.A. and her husband worked hard for their retirement. L.A. is also a cancer survivor.

Her ordeal with radiation, chemotherapy and the horrific side effects have led to significant bone issues for her relating to her bones, her mobility and her teeth. Her health ordeal was known to Mr. Pickering. Moreover, as a result of these matters, there has been a physical and psychological, as well as an emotional toll taken as a result directly of this fraud. The family life savings of approximately $250,000 were lost. Her current income is limited to Old Age Pension and Canada Pension Plan. L.A. borrowed some $223,666.25 against her home equity and a line of credit. [ 27 ] In short, L.A. believed Mr.

Pickering. L.A. believed his tears and he took advantage of her. These were not monies for investment for her to profit. She was not being greedy. She was helping a friend who she thought was in dire straits. She expected no profit. The result is that she is ashamed, she is emotionally upset, she has trouble sleeping, she feels insecure and is worried about the very real prospect of losing her house. This offence has had a great impact on her physical and psychological integrity and security and that is a fact that I find with respect to the impact on the victim in this fraud. THE CROWN'S SUBMISSION [ 28 ] Mr.

Marks has submitted the appropriate sentence is in the range of three to five years. He submitted that a fit sentence, considering s. 718 and the circumstances of this offender, is in the upper end of that range. Mr. Marks argued that the aggravating features could be described as follows. That L.A. was a vulnerable, susceptible victim. There was a significant amount of money and the size and magnitude of the fraud is large. In sum, he submitted that the means and the method of Mr. Pickering was Fagan-esque in character. The victim impact is severe. Mr.

Pickering committed this fraud while he was serving a sentence of a conditional sentence order, not one, not two, but three, and this is therefore his fourth adult conviction. The motive was greed. A further aggravating feature is Parliament's description of it being aggravating as a result of s. 380.1. [ 29 ] In mitigation, Mr. Marks pointed to the plea and the $80,000 in restitution provided by Mr. Pickering.

The Crown submitted that the paramount principles of sentencing for the court to employ in the case at bar involve denunciation and general and specific deterrence, as well as, given his history, the protection of the public. The thrust of Mr. Marks' submission was that rehabilitation is of less importance in this case, however, he highlighted that a mitigating circumstance is the restitution provided by Mr. Pickering. [ 30 ] Mr. Marks also, as part of his submission, drew to the attention of the court a number of cases which he provided in a casebook weeks before the sentencing proceeding.

He drew to the attention of the court R. v. Arnold , unreported, BCCA, Vancouver registry CA017100, a decision from July of 1995 by Madam Justice Southin in which Madam Justice Southin made reference to the trial judge decision of the Honourable Judge Dohm in the sentencing of Arnold. The sentence imposed was some three-and-one-half years. [ 31 ] He also drew to the attention of the court a decision by the Honourable Mr.

Justice Hutchison in the Supreme Court of the Province of British Columbia in Victoria on 92683T where Justice Hutchison, in respect of a sizeable fraud involving a first offender and in the circumstance of some two-and-one-half months already been served, imposed a sentence of some three years to be served in the federal penitentiary. In respect of that particular set of circumstances, what is significant is that Crause was engaged over a lengthy period of time at bilking the aged and elderly citizens of Sidney of significant funds.

It was the magnitude of the theft which led to the imposition of that length of sentence. [ 32 ] He also drew to the attention of the court the decision of the Honourable Mr. Justice Singh in R. v. Linton , [1999] B.C.J. No. 3166 , a decision from 1999 by Mr. Justice Singh, as he then was, in circumstances of an internal theft and a sentence imposed in that instance of real jail, but of a significantly shorter term than what Mr. Marks was seeking.

With respect to Justice Singh he had taken a review of a number of previous decisions in considering the fit and proper sentence, and as well as the previous decision in R. v. Sharma , as well as the previous authorities articulated. Sharma is [1997] B.C.J. No. 2615 in the British Columbia Supreme Court. The Crown had tendered as well a number of cases involving breaches of trust, and in respect of the application of the purpose and principles of sentencing, we have the benefit of Justice Singh's analysis at paragraphs 35 and 36, as well as his reference to the circumstances of the offender and Mr.

Soga's submissions as outlined at paragraph 38. It is important to note that Linton had no previous criminal history. [ 33 ] Mr. Marks also drew to my attention R. v. Kralik, [2006] B.C.J. No. 1979 where Madam Justice Wedge in the British Columbia Supreme Court imposed a sentence of a significant duration.

In that case at paragraph 33, having considered a number of other offences, Madam Justice Wedge described her paramount principle of sentencing and the fact that Kralik was at a significant risk of re- offending and at paragraph 34 sentenced Kralik to some four-and-one-half years in prison. [ 34 ] And the final decision which is of significance for the range is that of my colleague, the Honourable Judge Brooks, in Victoria in 2011 where a first offender was, in respect of a significant fraud, sentenced to a sentence of some three years incarceration, having already served some two months in pre-trial by the Honourable Judge Brooks.

THE DEFENCE SUBMISSION [ 35 ] Mr. Hill submitted very strongly that the court should consider a conditional sentence order to enable Mr. Pickering to commence paying approximately $1,000 per month towards restitution. Mr. Hill argued on the authorities of R. v. Morrison , [2012] B.C.J. No. 186 in the British Columbia Supreme Court where Associate Chief Justice Cullen imposed a sentence, having regard to the Gladue principles that a mitigating factor should be applied and that the court should impose a sanction with a demonstration of

restraint. [36] He also relied on the decision in 2011 in R. v. Zolnasr, [2011] B.C.J. 2452 in the British Columbia Supreme Court. JusticeWillcock gave an oral judgment imposing a short correctional centre term in a fraud of significant magnitude, taking the view that therewere extreme mitigating personal factors and as a result the court imposed a sentence, at paragraph 64, of incarceration for 12 months,giving a significant reduction based on restitution.

The court then exercised its discretion not to make the requested DNA order, findingthat unless the order was mandatory that the court would not exercise its discretion to grant such an order, which is in my view contraryto the current law in this province as it relates to the imposition of and the exercise of discretion for DNA orders. [37] The last decision which was drawn to my attention is one which was relied upon by Justice Singh in Linton. It is alsodescribed by Mr.

Hill as founding his position that the court should impose a sentence in accord with s. 718.2, providing for a sentence tobe imposed on similar offenders for similar offences in similar circumstances and not be disparate. The sentence should be reduced dueto the amount of restitution and the intent of restitution, as well as not depriving Mr.

Pickering of liberty if less restrictive sanctions maybe appropriate, and in particular having regard to 718 and the direction that all available sanctions other than imprisonment that arereasonable in the circumstances should be considered for all offenders. [38] Taking into consideration R. v. Proulx and the Court of Appeal decisions leading to conditional sentence orders in fraud cases,Mr. Hill submitted that on the authorities a conditional sentence order was not precluded on the law in the case at bar.

Moreover, Mr.Hill argued on the following factors and reasons that there should be a significant reduction of sentence for Mr. Pickering. First of all, hereferred to the guilty plea. Second of all, he referred to the $80,000 restitution paid. Thirdly, the offer of complete restitution, thecandid apology, the confession from 2007 and the intention to make full restitution. Mr. Hill pointed to the fact that his client isworking. He made reference to the previous historical reasons of his client's involvement that I am not going to elaborate upon, giventhe nature.

He referred to the case law and said that the range in his submission was from a conditional sentence order of two years lessone day to a lesser penitentiary term in the range of two to three years. CONCLUSION [39] I am guided by the provisions of s. 718 of the Criminal Code as I must be. These provisions are now legislative provisionsincorporating the previous history of sentencing articulated in the Province of British Columbia in Hinch and Salanski from the 1960s. The provisions of s. 718 provide that I am to look to all of the headings under s. 718 to determine how they should be applicable to thiscase.

Having regard to s. 718(

a) and s. 718.1, in my view the combination of time, magnitude and the means and method of this fraudmake it a serious offence. Denunciation, therefore, requires a significant sentence. The reason for that is that the sentence mustdenounce the unlawful conduct of Mr. Pickering and the sentence must reflect the fundamental principle of sentencing in that it must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [40] With respect to the degree of responsibility of the offender and the aspect of deterrence, we must look to the degree of moralturpitude of Mr.

Pickering as being very high. He knew of the consequential harm that the amounts of money he was receiving wouldcause to L.A. He knew of her health issues. He knew he was siphoning off her savings and exposing her to financial ruin. His sheer andutter greed is apparent from his lack of recall of where the money went. This is not a circumstance where Mr. Pickering was addicted todrink or drugs or gambling or any other vice. The sole purpose was for him to continue a lifestyle of living high, enjoying the good life,while being a predator on an old friend.

His actions in my view were despicable. [41] Having regard to the aggravating factors articulated by Mr. Marks, which I will not repeat at length, in my view it brings thiscase within s. 380.1 and is a significant aggravating factor. As to the protection of the public and the need to separate Mr. Pickering fromsociety, this is his fourth offence and it was committed while he was already serving a jail sentence. [42] In terms of providing reparations for harm done to the victims and the community, that has already been commenced.

Theissue of rehabilitation is of lesser significance and importance in this case, but there is, as well, the need for the sentence to promote asense of responsibility in the offender and an acknowledgement of the harm done to victims and to the community, and that is done byvirtue of the order under s. 738 in this matter. [43] Balanced against those aggravating factors, Mr. Pickering, are, one, your plea, the $80,000 restitution order that you havealready made on your own, that step is a significant one.

I accept your sincere confession and your apology, as I am sure L.A. does,although I am sure it falls somewhat hollow for her to hear, given the history between the two of you. Your intention of continuedrestitution is going to be limited by your ability. Your health issues are a mitigating factor. The fact that you are married and you havestability in your personal life is as well a mitigating factor. Your continued employment is as well. [44] However, if you look realistically at the prospect of making full restitution, there is little that this sentence can achieve otherthan the stand-alone restitution order.

Even if you were earning $60,000 per year, in order to pay the restitution order over a ten-yearperiod you would have to accumulate some $40,000 after tax every year for the purposes of paying that kind of money. That is going tobe a difficult task for you in order for you to fulfil the purpose of sentencing under s. 718(f). [45] In imposing the sentence in this case, I am also guided not by just those aggravating factors, but by the principle of restraint.

The principle of restraint is referred to in s. 718.2, which balances, as all sentencings are, aggravating factors and mitigating factors, andyou have heard me refer to both aggravating factors and mitigating factors throughout my reasons. The sentence that I impose on youshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In other words, itshould not be disparate. You should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

Andfinally, I must consider in the imposition of the sentence the direction of the Supreme Court of Canada in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 where, at pages 557 to 558, Justice Lamer, as he then was, articulated the proposition this way: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing

more . [ 46 ] I have considered the purpose and principles of sentencing. I have considered the circumstances of this offence, the circumstances of the offender, Mr. Pickering, and I have applied to those factual questions the principles of sentencing. In addition, I have considered the impact on the victim, L.A., and the mitigating factors set out above. Were it not for the restitution already paid, in my view, the fit sentence would have been five years. However, considering the language of the Supreme Court of Canada that I have just quoted from R. v.

M.( C.A. ) and giving you credit for the $80,000 in restitution already made, I am of the view that the principle of restraint requires the imposition of a just and appropriate punishment and nothing more. [ 47 ] Would you stand, please, sir? In addition to the ancillary orders already imposed, I sentence you to four years in the penitentiary. Those are my reasons. That is my sentence. Thank you for your assistance, counsel. (REASONS FOR SENTENCE CONCLUDED)