R. v. Archer, 2023 BCPC 228

Citation: R. v. Archer 2023 BCPC 228 Date: 20230912 File No: 18557-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. PAIGE LEIGH ARCHER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: T. McKelvey Counsel for the Defendant, appearing by videoconference: J. Doyle Place of Hearing: Sechelt , B.C. Dates of Hearing: July 5, September 6 and 8, 2023 Date of Judgment: September 12, 2023

Introduction [ 1 ] THE COURT : Paige Leigh Archer has pled guilty to the charge that on or about the 28 day of March 2021, until the 10 day of April 2021, at or near Sechelt, in the province of British Columbia, she did by deceit, falsehood, or other fraudulent means defraud Everbrite Ventures of money of a value not excess of $5,000. This is contrary to s. 380(1) (

b) of the Criminal Code . A Brief

Summary of the Facts [ 2 ] Ms. Archer had been employed by Everbrite Ventures doing bookkeeping work. On March 21, 2021, she told her employer that $250 was owed to the Canada Revenue Agency. On March 28, 2021, based on the advice that Ms. Archer had provided to her employer, her employer authorized a $250 Interac transfer to the Canada Revenue Agency. A few days later, Ms. Archer again said money was owed to the Canada Revenue Agency and that resulted in an Interac transfer of $1,744.33 to the Canada Revenue Agency. There were similar transactions on April 5 and April 10 in the amount of $1,732.44 and $460.

These Interac transfers were not to the Canada Revenue Agency but were to an account controlled by Ms. Archer. [ 3 ] Due to the number of transactions, Ms. Archer's employer became suspicious and contacted an accountant, and based on the information received from the accountant, the employer concluded that Ms. Archer had caused fraudulent transactions to be made. Ms. Archer’s employer reported it to the RCMP. At the time this occurred, Ms. Archer had not been paid for her work and was owed approximately $6,000.

Positions of the Parties [ 4 ] Crown counsel submits that a conditional sentence order of six months, to be followed by one year of probation, is the appropriate sentence. Crown counsel notes that this is a breach of trust situation, which the Crown submits is a significantly aggravating factor. Crown counsel further submits that deterrence and denunciation are primary sentencing principles in this matter. Crown counsel suggests that greed was the motivating factor. In support of the Crown position, Crown counsel referred the court to R. v.

Cheng , 2006, BCPC 210 . [ 5 ] Defence counsel submits that a conditional discharge is the appropriate sentence in this case. Defence counsel submits that there are significant mitigating factors and, most notably, those being the pressure put on by Ms. Archer's former spouse to commit this offence and the effect of future employment in the accounting field if a conviction is entered. In support of the defence position, defence counsel referred the court to R. v. Zentner, 2012, ABPC 94 . Aggravating Factors [ 6 ] This is a breach of trust situation and that is a statutorily aggravating factor.

A second aggravating factor is that there was more than one act of fraud. Mitigating Factors [ 7 ] Ms. Archer has entered a guilty plea, is remorseful, and has no prior record. In addition, Ms. Archer was in active addiction at the time, and she has since taken steps to address her addiction. Further mitigating is the fact that Ms. Archer was subject to significant pressure from her former partner to commit this offence. The relationship between Ms. Archer and her former partner was described as toxic. Ms. Archer has since separated from that individual. A further mitigating factor is that Ms.

Archer had not been paid for her work and was owed approximately $6,000. Collateral Consequences [ 8 ] Ms. Archer was working in the accounting field at the time that she was charged with this offence and, as a result of being charged, she lost that employment. Paige Archer's Background [ 9 ] Ms. Archer is 31 years old. She has a five-year-old son. At the time of these offences, she was in a toxic relationship which she has since ended. At the time, as well, Ms. Archer was in active addiction. She has since taken steps to address her addiction, and she is currently on the Methadone Program. Ms.

Archer is continuing her education in the field of bookkeeping and accounting. Ms. Archer is hopeful that by continuing her education, she will be able to find further employment in the bookkeeping and accounting profession. Finally, Ms. Archer has been able to find stable housing. Primary Sentencing Considerations [ 10 ] I agree with Crown counsel that deterrence and denunciation are the primary sentencing considerations.

The Range of Sentence: is a Conditional Discharge within the Appropriate Range of Sentence? [ 11 ] As noted in Ruby On Sentencing , in the 10th Edition, at paragraph 9.27, on page 497, conditional discharges have been granted in a number of cases in which there was a breach of trust. In Kalonji , a conditional discharge was upheld on appeal where the offender pleaded guilty for fraud over $5,000 involving his employer. The same was true in Edmonds where the offender was a Corrections officer who had stolen from two individuals in the lockup.

In Sellars , the court substituted a conditional discharge on appeal where the offender used her password to fraudulently obtain

monies from her employer's health care plan for her abusive partner. In McIntosh, the court granted a conditional discharge to anoffender who stole between 12 and 32 BlackBerry phones from his employer during a seven-month period. In Howard, the court granteda conditional discharge to the principal of an elementary school who misappropriated nearly $30,000 donated by parents. The Fallofield factors [12] In R. v. Fallofield, (BC CA), 13 CCC (2d) 450 at paragraph 21, the court noted: From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, towhat I have said above as to the exercise of discretion.

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in thecircumstances of cases. Is a Conditional Discharge Appropriate in this Case? [13] I find that Ms. Archer is of good character, without previous conviction, and that it is not necessary to enter a conviction againsther in order to deter her from future offences or to rehabilitate her. Ms.

Archer has said, and I accept, that she has been deterred by beingcharged and arrested for this offence. She has felt the effect of losing a job because of this offence. With respect to rehabilitation, I find,as well, and again, that it is not necessary to enter a conviction for rehabilitative purposes.

Since the commission of this offence, Ms.Archer has embarked on a path of rehabilitation, has been dealing with her addiction issue, and is currently enrolled in the MethadoneProgram. [14] Finally, I am satisfied, based on the submissions of counsel, that the entry of a conviction may have significant repercussions forMs. Archer. It may significantly impact her ability to find work in the bookkeeping and accounting professions. [15] The next consideration is whether it would not be contrary to the public interest to discharge Ms. Archer.

I remind and cautionmyself that theft from an employer militates against a conditional discharge. Entering a conviction is a means for an employer ofknowing about the character of a future employee. [16] In considering whether it would not be contrary to the public interest to discharge Ms. Archer and after having cautioned myselfas I just noted, I do accept that at the time of this offence Ms. Archer was in active addiction and involved in a toxic relationship. I acceptthat she was under significant pressure to commit this offence and that pressure was coming from her former partner.

I accept the defencesubmission that Ms. Archer had not been paid for work and was owed approximately $6,000 in earnings. I find that Ms. Archer wasabused by her former partner and that was a factor in the commission of this offence. I find further that by not paying Ms. Archer for herwork, she had been exploited by her employer. Ms.

Archer has taken steps to deal with her addiction and has ended the relationship. [17] What sways the balance for me is the unusual pressure and stress that she had been receiving from her partner, the fact that shewas owed approximately $6,000 in earnings and had not been paid, and the effect of entering a conviction on future employment. [18] In support of the effect on future employment, I rely on R. v. Etine, 49 CCC (3d) 372, a decision of our Court of Appeal. In termsof the pressure and stress and owing of money, I rely on R. v.

M.(B.J.), (1976) 55 Alberta Reports 222, a decision of the Court ofAppeal. [19] As I have said, in my view, considering the unusual pressure and stress that Ms. Archer was feeling from her partner, the fact thatshe was owed $6,000 from her employer for work done, that she had not been paid for it, and when I balance the mitigating andaggravating circumstances and consider the background of Ms.

Archer and remind myself that sentencing is an individualized processwhere I must not only consider the circumstances of the offence but the circumstances of the offender, I am satisfied that it would not becontrary to the public interest to discharge Ms. Archer conditionally. [20] Ms. Archer, you may remain seated. Accordingly -- are you ready, Madam Clerk?

[ 21 ] THE CLERK: Yes, I am, Your Honour. [ 22 ] THE COURT: For the reasons given, Ms. Archer, I will discharge you conditionally for a period of 18 months on the following conditions. These three conditions are mandatory. By law, I must impose them. [ 23 ] Precedent 2001. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 24 ] Precedent 2002.

You must have no contact or communication directly or indirectly with Henry Unger. [ 25 ] Precedent 2005-1. You must not go to or be within any place where Henry Unger lives, works, attends school, worships, or happens to be. If you see him, you must leave his presence immediately without any words or gestures. [ 26 ] Precedent 2101. You must report in person to a probation officer at 203 - 5710 Teredo Square, Sechelt, B.C. by 3 p.m. tomorrow, September 13, 2023, and after that, you must report as directed by your probation officer. [ 27 ] Precedent 2202.

When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your probation officer before making the change. [ 28 ] Precedent 2501. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. [ 29 ] I will deal with restitution separately. Is there anything further with respect to the discharge order in terms of conditions? [ 30 ] CNSL T. MCKELVEY: No, Your Honour. [ 31 ] CNSL J.

DOYLE: Not from my point of view, Your Honour. Thank you. [ 32 ] THE COURT: So Madam Clerk, those are the terms. I am going to make a stand alone restitution order, pursuant to s. 738 of the Criminal Code , as follows.

Pursuant to s. 738 of the Criminal Code , I order that you pay restitution in the amount of $4,197.77 to Henry Unger. [ 33 ] With respect to the victim fine surcharge, based on what I have been told about your family situation, the fact that you are pursuing further education, I find that your financial situation regrettably is precarious, and to impose the victim fine surcharge on you, I am satisfied, would create an undue hardship, and I waive the imposition of the victim fine surcharge. [ 34 ] Any questions, comments, concerns about the conditions? They are clear, they make sense? [ 35 ] THE ACCUSED: Yes.

The only question I was going to say is, if I was to go to Small Claims Court, does -- it doesn't matter, it's two separate situations in regards to -- [ 36 ] THE COURT: Yes. It is two separate situations. [ 37 ] THE ACCUSED: Okay. Okay, thank you. (REASONS CONCLUDED)