) Ms. T. McComb, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. S. Seigal, - v. -, 2017 MBPC 63

Citation No. 2017 MBPC 63 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. T. McComb, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. S. Seigal, - and - ) for the Accused ) LEO JOSEPH MCCAUGHAN, ) ) Sentence delivered Accused. ) October 6, 2017 _____ SANDHU, P.J. (Orally) Let me begin by thanking counsel for the able submissions and the documents and case law precedence that were provided to me. They have been of considerable assistance in arriving at what has been a very difficult deliberation for me over the last several weeks.

This, therefore, is the court’s sentencing decision regarding one count of fraud over $5,000, to which Mr. McCaughan previously has plead guilty contrary to Section 380(1) (

a) of the Criminal Code . The offence spans a five-year period from December 14th, 2009 to December 14th, 2014. The facts of the matter are rather unique and are in the narrative attached to the pre-sentence report Exhibit S1. By way of background, the accused Mr. McCaughan was employed at Roman Catholic Parish of St. Bernadette, located at 820 Cottonwood, Winnipeg, Manitoba. He was employed under the title of Administrator. In the spring of 2015, an audit was called for by the parish. It was called for multiple reasons. It was a scheduled time, the priest, the previous priest had left, which triggers an audit.

And Mr. McCaughan, the administrator had just also left, which also under I gather parish policy, triggers an audit. The auditors immediately noticed discrepancies and reported it to the police on July 21st, 2015. Between the dates that I’ve mentioned Mr. McCaughan wrote himself 112 cheques from the parish, for no legitimate purpose. He made false entries to the ledger to show these cheques were being donated, or used for various services for the church. The total loss from the cheques alone was $227,580.37, as then calculated. These cheques were all deposited in to a bank account that was held exclusively by Mr.

McCaughan. (Inaudible), Mr. McCaughan was taking cash also from donation envelopes. The cash was taken in two types of ways. The main part of collections is the regular collections. These collections were counted by parishioners and they filled out forms indicating how much was collected. Mr. McCaughan would take some of the cash before making the deposits and alter the slips. The stolen cash in this way was almost $68,000. In the second manner, the collections are all, are, there are more specific donations other than collections. Mr.

McCaughan was responsible for separating these collections from the regular collections and then depositing them before they were issued to a specific charity or for parish or church purposes. For instance, the snow, snow clearing, instead Mr. McCaughan was actually taking some of the regular collections into this group, and then he would take all the cash but still deposited the cheques, in order to avoid detection.

Because of course the cheques would not match with the cash, he entered the correct donation amount into the donation receipt program to ensure the parishioners donation receipts were for the correct amount. The books therefore showed the donation. The total taken in this way was almost $112,000. The total added up at the time of the investigation to $407,000 approximately. In the spring of 2015, an audit was called. It was called for multiple reasons as I’ve already indicated. On January 5th, Winnipeg Police attended to Mr. McCaughan’s residence and he was placed under arrest.

Shortly thereafter, as he was not home, a warrant was issued. There was no indication that Mr. McCaughan was evading arrest, he simply wasn’t home at that time. He was released, and I understand has not spent any time in custody. Total provable loss, as I understand on today’s date for the purposes of this sentencing, is approximately $370,000, despite the quantification earlier indicated of almost $407,000 or just over at the time of the arrest.

Mr. McCaughan has no prior criminal record and is currently 41 years of age. He is single with a grade 12 education and no further education or training. A number of exhibits were filed at the sentencing argument which took place approximately a month ago. And I just want to read them into the record, because I have considered all of them carefully. Pre-sentence report, psychological report from Dr. Gary Goertzen (phonetic), 20 letters of reference, a Crown casebook, defense casebook, supplemental report by Dr.

Gary Goertzen, the first report being in April, this report being in August, the second one, and then two reference letters from Mr. and Mrs. Schwab, S-H-W-A-B (sic). And reference letters from a Mr. Lor (phonetic) and I believe it’s Miss Dobson (phonetic). In terms of the more detailed background of Mr. McCaughan, he describes his upbringing to his probation officer and to Mr. or Dr. Goertzen as normal, although there were financial struggles. At 16 years of age his parents divorced, and his father obtained custody. His mother was diagnosed with schizophrenia when Mr. McCaughan was 18.

Probation report indicates that his parents were estranged essentially for 10 years, although they have made recent contact. They remain in contact but are not close. He describes in the pre- sentence report his close relationship to his parish and his church in which he has been a member at least 15 years. Overall, the impression I have of Mr. McCaughan is one of religiously devout man, who has been extremely active both in his church and his community and has been for most of his life gainfully employed and a contributing member of society.

He has in my opinion, based upon all the evidence, deservedly gained the support, trust and kinship of his church, which was gained by his own outgoing personality, willingness to help others and much of his volunteer work done on his own time. The church and its members, essentially became his surrogate family. He does not deny that, and in fact, that is one of his positive features. Indeed, that support continues, as the parish I’m told has paid for his, now I understand, 17 counselling sessions. Perhaps as of today’s date more.

He describes one family in particular, the Schwab family, S-C-H-W-A-B, has become his surrogate family. And they have provided glowing character reference letters regarding his character and their relationship with him. I just want to read excerpts from Exhibit S6, with regard to the reference letters from Matthew or Mateo Schwab and Keri Schwab (phonetic). Regarding Matthew Schwab: I have known Leo over half of his life.

I suffer from kidney stones as a child and would spend my, he would often spend, and as such would, I’m sorry, and as such would often have sick days which would be spent at my grandmother’s work. I grew up, I began to grow close to my mothers, grandmother’s co-workers. One of whom happened to be Leo, this was how I got to know him. I was not the only regular, only member of my family to develop an affinity for Mr. McCaughan. And before long he was a regular at family dinners, staying overnight on Christmas Eve, and all of us cousins referred to him as Uncle Leo.

Even now, that has not changed and never will change. Seeing the news reports coming out in the following days after his arrest was nothing short of agonizing. They painted Leo as an extremely selfish person and selected pictures that would make him essentially look the worst. The action has been, the action, excuse me. Upon his release from the remand centre, he immediately sold his home and gave everything back to the Crown, willing to give it back to the church. He did this before he was mandated to do so.

He completely understands the impact his actions have had and is doing everything he can to make up for his mistakes. He currently has a steady job, and is very committed to repaying the church for all he stole. As such, I wholehearted believe that any action that would prevent him from continuing in this position would be detrimental to all parties involved, and hope the court’s judgment for him is the same. A letter similar, to similar effect from Keri Schwab, quote: I met Leo Mr. McCaughan 12 to 13 years ago, through my mother, who worked with him in St. Bernadette parish.

She describes a close relationship with him, her kids have become like nephews and nieces to Mr. McCaughan. She first found out about the charges against Leo when Father Phil asked my son, me, and me to meet with him. I was shocked and devastated by what I heard. My sister and I went to see him at the Remand Centre two days after his arrest, and it was very clear to me that he was very remorseful of what he had done. He cried for most of the time. From the moment he got out of the Remand Centre, he has done just that. He has paid back, according to the church, all of the money.

He is working fulltime for Vickar Chevrolet, seeing a counsellor and meeting weekly, excuse me, with a probation officer. Final paragraph: I do not believe, quote: I do not believe that Leo spending time in jail would benefit him, I think it would have the opposite effect. He’s trying hard to make amends and has paid back the money he took. He is receiving some much-needed counselling and working fulltime. He could not do this from a jail cell, and in my opinion, it doesn’t make sense for cost payer, tax payers to house him, when

he’s now a contributing member of society. There must be other options. There are many letters in Exhibit S3, 20 letters of reference that I have reviewed very carefully, and had a chance to review very carefully. And as I said, it’s the totality of what I’ve read, not only from the references, also the pre-sentence report and Dr. Goertzen’s reports that led me to conclude what I’ve already indicated about Mr. McCaughan’s character and personality. I will have a bit more to say about character at a later point in my reasons for decision. Mr.

McCaughan has worked various jobs on the seasonal and casual basis before being hired as the office manager, or I think it’s called the Administrator for the parish in March 2003. And he continued in that role to 2015. In that position he was responsible for handling all money, as already described, for his church. His salary through the years ranged from $30,000 to $40,000 per annum. As I’ve already indicated in reviewing all the character reference letters filed, and hearing Mr.

McCaughan’s own comments last time we appeared in court, and reviewing the letter that was attached to the pre-sentence report that Mr. McCaughan wrote as a letter of apology, he was considered a trustworthy and reliable person by almost all who knew him. Each reference indicates shock and confusion and disappointment, even to the point of disbelief, that such a thing has happened. Trustworthiness and reliability in a criminal case of fraud or trust or theft is a two, a two-way, it is a two-edged sword.

On the hand it’s the trust and reliability that allows a position to, allows an individual to be in a position of trust and reliability. At the same time, you can’t come into court and say, I am a trustworthy and reliable person, for that very, very reason. That’s what got, that’s what allowed Mr. McCaughan and this is the case for most people of fraud or theft from institutions to get away with it for long, lengthy periods of time, because of the trust that is implicitly given to individuals in such situations. Furthermore, in terms of background, in May 2013, Mr.

McCaughan was hired by Vicor Chev Olds as a salesperson. He was laid off for a brief period of time in October 2016, but was rehired in November of 2016. His supervisor Derick Ellice (phonetic) describes Mr. McCaughan as “a fantastic employee” and was shocked as have been many others to hear of these allegations which I gather Mr. McCaughan did not originally disclose. Nevertheless, he remains employed there, and as I’ve indicated, he’s indicated as a hard worker and fantastic employee. So all in all, I must say that Mr. McCaughan presents as a highly complex individual.

In that regard, I reference both the pre- sentence report, the character letters, the psychological reports of Dr. Goertzen, Exhibit S2 and the supplemental report Exhibit S5. In

summary, the reports and background present Mr. McCaughan as remorseful, with clear insight and appreciation for the harm he has caused. I, I would reference in that regard the psychological report at page 2, and the pre-sentence report at page 5, I will not quote them at this time. He has been deemed very low risk to reoffend, both by the pre-sentence officer and by Dr. Goertzen. Also, I note the Archbishop of St. Boniface provided a reference letter which is noted and described at page 17 of the pre-sentence report as follows, in the middle of that page: Many letters of reference have been received on Mr.

McCaughan’s behalf, including one from Albert Lagat (phonetic), who is the Archbishop of St. Boniface. He is very supportive of Mr. McCaughan’s behaviour since his arrest. He devised that Mr. McCaughan has done everything in his power to right his wrong since his release. He is impressed with his admittance of responsibility and full cooperation with the investigation. He believes Mr. McCaughan has shown true repentance and desire to change his behaviour.” The many authors of other reference letters describe Mr. McCaughan’s character as compassionate, selfless, and responsible.

He has a strong Christian-based community to support him. A complicating feature of Mr. McCaughan’s background is the assertion he was, at the age of 26, to, to use the words of counsel, “sexually exploited” by a parish priest who was much older than him. The details of this allegation or interaction are contained in Exhibit S2, the, the psychological report at page 9. Mr. McCaughan disclosed a development and longevity of how the parish priest came to abuse his position of trust, to have sexual activity with him. First the priest was kind, listened and affirmed Mr. McCaughan’s emotional needs.

He supported them financially, paying for things including dentistry, over $10,000. In 2003, he was invited to a conference with the priest, at which time alcohol was involved and a sexual advance was, was made. Mr. McCaughan says he was shocked, confused, and upset but did not have the courage to push the priest away. Upon returning to Winnipeg Mr. McCaughan indicated he attempted suicide by overdosing on Tylenol 3’s and sleeping pills, but this was unsuccessful. He was taken to hospital. The priest, the same priest was the only one who visited him and showed him care.

Over the years that followed the priest made many attempts to touch him in the genital area, over his clothes, and there was lots of sexual conversations. Finally, in 2009, after a more severe sexual encounter by the priest, Mr. McCaughan knew deep down he wanted to stop and he would never tolerate it again. When he stood up to the priest and said it was over, the priest retracted any normal care for him and was completely withdrawn. This is when Mr. McCaughan began to thieve.

With regards to this particular allegation, I will have more to say that, about that later once I have indicated the position of the defense. In terms of the position of the Crown. The Crown contends that the normative sentencing path, pattern, that is, the normal range for this type of offence, for this type of fraud, over this length of time for a person with no criminal record and otherwise, no major aggravating circumstances is two to three years incarceration.

The Crown contends in this matter, that there are a number of aggravating features, which include the following: That there was falsification of tax records and filings, that there was destruction of collection records or altered books, that there were false accounting

entries, that there were direct lies to church overseers, who implicitly trusted him. And finally, that there was no admission until arrest. Essentially, these five features that the Crown indicates are aggravating are one feature, and that is a cover-up. He was attempting to cover-up, what was a large amount of money that was stolen. The crime was thus, because of this cover-up, only discovered after an audit in early 2015, and as I’ve indicated an arrest was made on January 5th, 2016. The Crown contends that Mr.

McCaughan did this all for greed, and that the alleged sexual activities with the priest, had nothing to do with his motivation. Mr. McCaughan only quit his job when an audit was forthcoming, and he knew he would be caught, says the Crown. Mr. McCaughan used the money on personal luxuries, not on anything else, or to give to charities, or to give to family. And some of these luxuries included a newer BMW, or a new BMW, and indeed actually included real estate, being an entire house and the land attached to it, I gather.

In addition to the general principles and purpose of sentencing, the Crown points out the court is to consider

Section 718.2(a)(3), that is by law, a breach of trust is an aggravating circumstance and also we must consider

Section 381.1(a), (c), (d), and (b). I’m not going to read out the entirety of

Section 718.2(a)(3), it’s well known to both the Crown and defense. But essentially the main purposes and principles of sentencing are denunciation and deterrence, rehabilitation. The idea of giving a sense of responsibility to an offender and of course, this is a statement that similar offenders in similar circumstances, should get a similar sentence.

And I don’t have my Code in front of me, but also with regard to the fact that there should be a minimal penalty of incarceration, or should be avoided if possible if other penalties can, can suffice, with particular attention to the condition of aboriginals, which is not the case, case here. Mr. McCaughan was a leader and administrator in his small church of approximately 1000 members says the Crown. He was on their website as a leader and part of the pastoral team, which are considered to be elders. The Crown contends this is a breach of trust, is an aggravated breach of trust, because

Section 381.1(a), (c), (d), and (

f) apply. Essentially, he used his position of trust in order to further his crime. I wonder if the Crown, do you have a copy of the Code, because I left it in another courtroom and I just want to make sure I quote this properly. MS. MCCOMB: Yes, Your Honour, I do. THE COURT: Okay. Thank you. I just want to read this into the record because to me they do apply. 380.1(1) reads as follows: “Without limiting the generality of

Section 318.2 ...” which I have already considered. “... where a court impose a sentence for an offence referred to in

Section 380, which is fraud or other sections, shall consider the following as aggravating: That, that is these circumstances, and I have to consider these circumstances by law, raise the sentence. (

a) The magnitude, complexity, duration, or degree of planning of the fraud committed was significant. (

b) The offence adversely effected or had potential to adversely effect the civility of a Canadian economy etcetera, which does not apply. (

c) The offence involved a large number of victims.” In that regard, although there was one entity here, that is the church, there were a large number of victims. I say so because as indicated by Crown, the parishioners, members had to increase their donations and their collections because of a shortfall. I don’t make a major issue of that, but as sort of more an intellectual exercise that this is, in fact, what the case represents. There were more than one victims, although one complainant. I think (

d) applies: “In committing the offence, the offender took advantage of the high regard in which the offender was held in the community.” In this case the community of the church and: “(

f) The offender concealed or destroyed records related to the fraud or for the disbursement of the proceeds of the fraud.” So I am required by law to consider each of these subsections as aggravating, and in cases of fraud may do so. The Crown contends in this case that the breach of trust is “aggravated breach of trust” although, although the word aggravated does not appear to my knowledge in the Code in these matters. This is so as Mr. McCaughan was employed, excuse me, Mr. McCaughan’s employment details exceeded the normal “normal employer/employee relationship trust.”

The Crown has referenced the Ballot (phonetic) decision, in particular at tab 1 of its casebook, wich is said to be similar to the case of Mr. McCaughan. In that case, the individual Miss Ballot, received a term of imprisonment of sixteen months incarceration for a crime under the same

Section 380.1 (

a) of the Criminal Code . She was working at that time as an office manager, and through a five-and-a- half-year period the quantifiable loss was $150,000. Judge Carlson indicated that she had reviewed several cases submitted by the defense and Crown counsel, as I have in this matter, and she stated the following at page 7 of the Ballot (phonetic) decision: After hearing all of the cases and hearing submissions, I agree the custodial sentence is required. I agree a penitentiary term is not required, nor would a suspended sentence be appropriate. The appropriate sentence is two years less, is two years.

Section 742.1 of the Criminal Code , the

section that deals with conditional sentence orders, which I gather was available at the time, requires consideration as whether, whether her sentence should be served in the community. The judge did not impose a conditional sentence order. She stated at page 8, line 25: Specific deterrence and rehabilitation take a backseat in this case. She has already deterred herself by many consequences that she has and will continue to have due to her offending. At this point, rehabilitation will be helpful to Ballot to have supports. It is not the primary focus, and it is doubtful she will be in a position of trust again.

And I, I mirror that conclusion. There’s no need to really consider rehabilitation or specific deterrence. Because I think specific deterrence is not required for Mr. Ballock (sic) and he has gone a long way towards obtaining rehabilitation. The Crown contends that R. v. Paul , a decision of our Court of Appeal in 2003, remains the leading case for breach of trust cases, that is with regard to fraud, or to theft and I agree. The case involves a theft of about $11,000 by a First Nations man and Chief Justice Friedman wrote for the court: The very strong message ...

And this is also requoted at Judge Carlson’s decision. “The very strong message referred to by the judge, that the persons in such a position who engage in this sort of conduct will be severely dealt with, cannot in my opinion be adequately communicated in this case by a sentence served in the community. While such a sentence can, obviously, have a deterrent aspect, especially when sufficiently stringent conditions are imposed, there are some cases where denunciation and deterrence can only effectively achieved by incarceration.

A breach of trust, committed over a long period of time and involving considerable sums of money, will typically be, be such a case.” So I emphasize, unquote, so I emphasize the last sentence, because that’s the sentence that has been effectively applied through many, if not all of the cases since R. v. Paul , and is a legal principle in cases of fraud or theft of large amounts over lengthy periods of time. That is, incarceration is the typical and normative sentencing pattern. The Paul decision was also quoted in R. v.

Patterson , which is contained at tab 4 of the Crown’s casebook, and I wish to quote what Judge Guy said at page 13, and again he’s quoting from R. v. Paul : “Since the introduction of conditional sentences, courts have confirmed that abuse of a position of trust will tend to result in a custodial term. The very strong message referred to by the judge, that the persons in such a position who engage in this sort of conduct will be severely dealt with, cannot in my opinion be adequately communicated in this case by a sentence served in the community.

While such a sentence can, obviously, have a deterrent aspect, especially when sufficiently stringent conditions are imposed, there are some cases where denunciation and deterrence can only be achieved by incarceration in custody.” And again, the seminal sentence, a breach of trust committed over a long period of time, involving considerable sums of money, will typically be such a case. And again, in R. v. Akin , a 60-year-old female in a position of trust, a breach of trust. The following was stated at page 10:

The range of sentencing for breach of trust runs the gamut, and there are many, many cases in Manitoba for which conditional sentences ... Which I say as an aside, is not available by law in this case. ... have been given and where periods of jail in provincial institutions have been given.

If you look at the cases involving major losses, planned and premeditated, the losses such as this over a number of years, it is pretty easy to conclude the Crown is right when it says: The range of sentence is two to three years for first offenders, depending on again, the presence of absence of aggravating and mitigating circumstances.

The Crown further contends that the, one of the aggravating features in this case, and that’s why it’s termed “aggravating breach of trust” according to the Crown, is the church began suffering financial shortfalls that were inexplicable at the time, and donation collections had to be increased. Every member of the church, as I’ve already indicated, had to contribute and for that reason may be considered a victim. The Crown further contends that Mr. McCaughan simply took advantage of the trust given him, even as a financial oversight required was lax or entirely missing.

This is one of the features that have now been quoted by, in terms of aggravating circumstance, so I’m not going to make it doubly aggravating as it’s already considered by me as part of what I have to in the Criminal Code . The Crown further contends that Mr. McCaughan essentially led a luxury lifestyle, knowing the extreme financial consequences to his church and parish, and was indifferent to the consequences. For instance, he must have known that collections were being increased, he must have known exactly why those contributions had to be increased, and he was the only one who knew why. In

summary, the, the Crown position is as follows: That there were a number of aggravating features; the high level, that this is a high-level breach of trust, high-level because of the length of the fraud, five years and the amount of the fraud, approximately $370,000; because of the amount of deceit and coverup being extreme; because and as mandated by

Section 380.1 , the high regard allowed him to do this and do this for a period of time; and because restitution was forced only after arrest. The Crown also points out some mitigating features. For instance, the very favorable pre- sentence report, his guilty plea, was saving time, money and the expense of a trial. The Crown admits that Mr. McCaughan has genuine remorse and that is clear. Restitution has, has been paid, which is a major feature in these types of cases that, that the wrong be righted, and the community or victim made whole. He has no prior criminal record at the age of 41.

He has been deemed both by the pre-sentence officer and by Dr. Goetzen as being very low risk to reoffend. I might add, it’s rare, and I have seen, I haven’t seen thousands of pre-sentence reports, to see a report for an individual who’s very low risk. But then again, as I said, it’s a two-edged sword. It’s that very low risk to reoffend that perhaps allowed him to be employed in this position of trust in the first place, and then the oversight being lax. The Crown therefore seeks a 30-month term of imprisonment. The Crown contends that suspended sentence and supervised probation as requested by Mr.

McCaughan’s counsel, would fail to meet the totality of the principles and purposes of sentencing, and does not reflect the seriousness of an offence that carries with it the possibility of 14 years in jail, making it even more serious than theft over $5,000, which has a maximum of 10 years imprisonment. The Crown contends that no jail sentence would circumnavigate the will of the Manitoba Court of Appeal in Paul . The Crown points out, that as a lower court, Manitoba Court of Appeal decisions are binding upon me.

Conditional sentences were removed as an option, that is conditional sentences of imprisonment were removed as an option on January 1, 2012. So the court therefore as the counsel have both pointed out in, perhaps in using different words, I have a stark choice to make. That is between a suspended sentence with no jail on one hand, and jail on the other hand with no room in between. The Crown did speak to the legal concept of exceptional circumstances when they spoke first. As a principal it does exist and can take a normative sentence and reduce that outside of the normative range.

That was an issue raised by the defense which I assume was anticipated by Ms. McComb. I’ll address the entirety of the defense’s position, including the concept of exceptional circumstances now, and at that time consider the Crown’s response to that one issue. It had been my intention at this time to just briefly review some of the caselaw that the Crown has, the defense had provided but I’m not going to do that because we’re running out of time, quite frankly. But I can indicate that I have carefully reviewed all of the caselaw, and the normative sentencing pattern for these cases, is indeed, two to three years.

Prior to, when the conditional sentence order imposed, there were many conditional sentences that were imposed. But don’t forget, that when, the first step in a conditional sentence order is whether or not you go to jail. So every one of those cases where a conditional sentence order was imposed, the judge took the first independent step and imposed jail.

So that’s not a two-edged sword, also because when you are arguing these cases, and presenting these cases, and the entirety of the cases by the defense are conditional sentence orders that were imposed for these types of cases, which is not an option, the first step was whether or not jail was proper and then the judge, that’s the legal steps, then the judge goes to consider whether conditional sentence imprisonment should be served. So these cases are not of particular assistance to me, I must say.

I can also say that all of the sentencing precedents other than the ones I’m going to mention, simply because they set the range, of somewhat limited value. Because all of them deal with institutions, financial institutions, one, one case of personal care that was being done, or businesses, and this case we have a church. So that takes us, sort of, out of, outside what the precedents normatively have been provided to me, and that’s what’s causing me some distress over the last few weeks at arriving at a fit and proper sentence. This is not the normal or typical case.

The position of the defense is that a major part of that position, in this case, is that there are facts and circumstances such that I should find, as legally defined “exceptional circumstances” for Mr. McCaughan. The argument goes essentially like this. The facts are so extraordinary that the fit and proper sentence is not the normative range, but a suspended sentence with supervised probation and no jail, and no form of incarceration. As indicated, the defense and Crown, Crown positions are thus far, are thus far apart and there’s unfertile ground for me to consider in between.

In addition to the mitigating circumstances already outlined fairly by the Crown, and of course agreed to by the defense, and which I need not repeat, the bulk of the defense position is that Mr. McCaughan falls within the category of “exceptional circumstances” as legally defined, and therefore should impose what is otherwise clearly an unfit sentence, that is a suspended sentence. The contention under these circumstances are exceptional in law. As a matter of law, it could be factual matters, or personal matters, or a combination of both that constitute exceptional circumstances.

For instance, in the case of R. v. Kelly , which is at tab 6 of the Crown’s casebook, excuse me, of a, of the defense casebook. I’m sorry, it’s at tab 1, my error. Ms. Debbi Kelly plead to three fraud related charges at the age of 23. Her duties were to order supplies and report purchases to the board of directors in child care in Toronto. She immediately admitted the facts.

Oh, I’m sorry, she’s not 23 years of age, she worked there for 23 years, she’s 56 years of age, married for 25 years and page, paragraph 23, the court said: “I think that it can fairly be said that in most circumstances the jurisprudence dictates that large breach of trust frauds will not be eligible for conditional sentences because a conditional sentence would fail to reflect sufficient general deterrence. This is an exacerbated breach of trust insofar as the victim was a non-profit organization funded by public funds from the city of Toronto and province of Ontario.” The, Ms.

Kelly had a major medical condition. The court reviewed cases of defendant’s medical condition in mitigation of sentence, indicating this is a well known and long recognized fact. Accused infirmity can be considered exceptional circumstances. It all depends on the nature and the effect of the infirmity. And I emphasize this: “Compassion must neither be stifled nor allowed to take control.

While those words might not be the resonance of Portia’s “quality of mercy” speech in Shakespeare’s, The Merchant of Venice, Justice Twaddle comes close with the follow-up observation that, “justice without clemency, in appropriate circumstances, is injustice. In the Christian faith, the prayer of St. Francis admonishes believers to have the courage to change what needs to be changed, the strength to accept that which cannot be changed, and the strength to accept that which cannot be changed and the wisdom to know the difference.

It is often challenging when sentencing someone to accept that certain things are beyond one’s control.” In that case, on compassionate grounds the court imposed a sentence of 639 days to be served conditionally in the community, so that she was allowed to stay home on an absolute curfew. So the concept is well known in law of exceptional circumstances. Also, the case was provided to me R. v. Gbeve, and again, an example of exceptional circumstances.

The individual there had, was on a student Visa and if he did not receive a discharge in that case, it was a discharge, he would have been, his immigration status would have been cancelled, and he would have been deported. The best definition I’ve seen of exceptional circumstances is contained in R. v.

Romanishen 2017 Manitoba Court of Queens Bench reports at page 85, which is at tab 7 of the Crown’s casebook, page, just one moment, sorry counsel, one moment, page 10 of that decision. “Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict ...” In that case, it was a drug case. “... 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 ...”

And this is underlined, “... 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 a conditional sentence order sentences are not available. Thus, it will be the rare case where that standard of exceptional circumstances is met.” The defence further contends that Mr.

McCaughan, at the age of 26, as I’ve already alluded to, was essentially seduced by an unnamed parish priest. The details of that allegation, I don’t want to overstate them, or state them in too much detail but they’re contained in Exhibit S2 at page 9. Mr. McCaughan disclosed a development and longevity of how the parish priest came to abuse his position of trust to have sexual activity with him. First the priest was kind, listened and affirmed emotional needs, he supported him financially, paying for things including dentistry, etcetera.

I think I’m requoting what I said earlier, so I’ll stop at this point, and not have to, not requote it. So this is a relationship that is contended to be exceptional circumstances. Not only is it contended to be exceptional circumstances, defence contends it’s these circumstances that were in part, or played a major

part in the offence. Dr. Goetzen had this to say about that causal, or that alleged causal connection, at the bottom of page 9. In

summary of the subject’s stress disorder ... Before I, before I do that. I note that all these counselling sessions that Mr. McCaughan has had, is because of an accumulation of really unfortunate things that have happened to him in his life, which are contained in page 7 and page 8 of the report. At age 15 his mom divorced and left his dad. House fire at age 19, he was trapped on the second floor, jumped out the window. His mother had severe schizophrenic episodes and was in danger of self-harm at the age of 22. Police were called on one occasion, kicked down the door with guns drawn.

While driving on Springfield road a bumper hit his car, had an accident causing severe injuries, he was off for four months. While working at another place, he was exposed to various chemicals, inhaled powder insecticide. He was robbed, and at one point stabbed in the stomach with a syringe. Once he became lost in the Manitoba wilderness 2004, became infected with frostbite. Emergency gallbladder surgery 2014. An uncle committed suicide recently. And then this, finally this theft charge and the allegation of sexual exploitation.

So he has a diagnosis of post-traumatic stress disorder because of all of these accumulation of things. So I just wanted to state that for the record that I’ve considered all of that. In regards to the claim of exceptional circumstances, I do not find, first of all, I do not find that there were exceptional circumstances or that the test has been met. I say so for three reasons. I do not find sufficient factual basis for Mr. McCaughan’s allegations. Simply put, the allegations are not proven facts.

Number 2, even if true, I’m not convinced that a fully functioning adult male could be “groomed” as indicated by his counsel, as if he were a mere child and thus subject to being sexually exploited because of naivety that children and innocence that children have. As stated by defense and by Mr. McCaughan, this was by another adult male. Mr. McCaughan was 26 years of age at the time, I’m not sure how old the priest was, but was an elder. Furthermore, as stated by Dr.

McCaughan (sic), for the third reason, there’s no scientific tool, tool that exists to quantify the consequences of an adult male being sexually exploited by another older adult male and that effect on committing the offense of fraud. The nexus simply does not exist, I would say scientifically or logically. This was a point that Dr. Goertzen struggled with, and stated at page 8 of his report Exhibit S2: The analysis bearing witness to PD, at PTDS and stress disorder provide some insight into his impulsive and destructive choices of thievery. There’s no denying Mr. McCaughan acted very badly.

Some of which stems from a history of being repeated emotionally charged by trauma and then increasingly bothered by the growing situation of sexual innuendo’s and abuse by the parish priest. At the bottom of page 9, I should say he’s not using this as an excuse for thefts, but at the bottom of page 9: In

summary of the subject’s stress disorder I have no doubt Mr. McCaughan’s mental distortions, which made it possible to act out so selfishly, in repeated thieving are in some part precipitated by the substantial measure of trauma in his life. Perhaps the trouble with this perspective is there seems to be no scientific tool which could accurately measure and assign a score of responsibility across the various factors. For example, we cannot conclude that the sexual violations are responsible for 10 percent, 20 percent, 40 percent, or 60 percent of the mental distortions and therefore played a

part in his thieving behaviour. Whereas greed, selfishness, stupidity, and moral failure, are responsible for X amount of distortive thinking and behaviour. Equally, we do not know Mr. McCaughan would not, would have not

gone on stealing, on the stealing binges if the sexual exploitation had not occurred or if a list of other stress and trauma events had not taken place. However, we do know that trauma impacts a person’s thoughts, adaptability and survival instincts, and sometimes the outcome is ghastly or unscrupulous, as is in the case here. Having concluded that exceptional circumstances as legally defined do not apply in this case, the combined impact of all the mitigating factors does take this case, in my opinion, outside the normative sentencing range, even absent personal exceptional circumstances.

I need not repeat them all, but they are compelling. At this time, I just want to quote a couple of things from Judge Allen’s excellent decision in R. v. Zaborovick , (phonetic) which is contained at tab 7 of the Crown’s casebook. And this was, a total loss in this case was $160,000 theft. Accused was sentenced to 12 months imprisonment followed by two years of supervised probation, a conditional sentence order at that time was available because the thefts had occurred from 2008 to 2011. And Judge Allen also struggled with the idea of not giving this very sympathetic accused, Ms. Zaborovick, a non-jail term.

But he essentially came to the conclusion that I have, is that I’m bound by precedent. I’m bound by what the Court of Appeal has said with regard to these matters. I’ve carefully considered the exception that can occur, that is, if there are exceptional circumstances, but they do not apply. Let me state the following with regard to denunciation and deterrence and the direction that I have received, and I’m, that bind me, in terms of what higher courts have said. Supreme Court of Canada has said in R. v.

P.(B.W.) , explained the theory behind general deterrence, which is the main principle of sentencing I must apply. “General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” And R. v.

Paul is again quoted in that case, I’m not going to quote it again. In terms of good character, because good character has been raised in this case, Spiller v. R. , (phonetic) the BC Court of Appeal, 1969 decision. It’s not binding upon anybody but it’s persuasive, it is persuasive, $492,000 loss to an employer. Good character, the court said the following about good character in fraud or theft cases. Good character may be mitigating circumstances in some kinds of crime, i.e., an isolated case of criminal negligence or an unpremeditated assault in a fit of anger.

But in my opinion, this is not so where the offence ... And this is the Chief Justice writing on behalf of a three-panel judge Court of Appeal of British Columbia. Continuing on: But in my opinion, this is not so where the offence is a series of acts planned and carried out over a lengthy period. The person of good character who can appreciate to the full how wrong what he is doing, is, seems to me, just as culpable as a person of poor character, who appreciates less clearly the wrongness of his acts.

She used her apparent good character to enable her to perpetrate the crimes, now her lawyer, or sorry, her counsel wants to use it in mitigation of penalty. In this case, I do not lose sight of the fact of rehabilitation, which I have touched on.

Section 718(

d) indicates rehabilitation is one of the fundamental principles of sentencing. In this case, however, there’s a number of factors such that, as I’ve already indicated, I don’t feel personal denunciation or rehabilitation are factors, because I’m going to give him considerable credit for the rehabilitation that he has already done. I have also considered what Mr. McCaughan said when he addressed the court, and this only fortifies my decision. Mr. McCaughan stated orally to me last time we appeared that he felt shame and remorse.

He has made a personal commitment to give back to the church, he has true, and community. He has true shame for his crimes. He admits his dishonesty and hurt to family and friends.

He acknowledges the suffering of the church and members. He indicates, or I should, I should indicate that he has much positive post- offence conduct, and then that also is a legal term, post-offence conduct. That is, what is the conduct of the accused after he has plead guilty and we have many examples sometimes of bad conduct, and that can sometimes increase the sentence or at least, it’s not going to decrease it. In Mr. McCaughan’s story, he has exemplary post-offence conduct. I don’t know what more he could do.

He’s done 22 sessions, not just because of this crime, but because of everything else that’s gone on, on in his life and he clearly needs counselling, he’s very amenable to it, and is very positive in that regard. He continues to, to work. He’s paid $370,000 or so dollars back. He remains engaged with his community, reengaged with his church. His, as I indicated, his current employer speaks glowingly with him. So I’ve also taken that into account. Finally, it is important that criminal courts encourage guilty pleas where there is guilt.

And furthermore, with regards to post- offence conduct, giving some credit for this, is good, not only for the offender, but for the community and society as a whole. The only way I could think of rewarding post-offence conduct is some form of sentence reduction where such sentence reduction is deserved. Mr. McCaughan, would you please stand up. Mr. McCaughan, you’re sentenced to a term of imprisonment of 22 months. This will be followed by 24 months of supervised probation on the following conditions.

In addition to the statutory conditions, you are to report to a probation officer within 48 hours of your release from custody and thereafter as directed. You are to attend, participate and complete any treatment, counselling, or programming, or assessments, as directed by your probation officer. You are not to be employed or volunteer in any position of trust involving financial responsibility.

There is, it is a secondary DNA offence, I have thought about that carefully, and given your background, your very low risk to reoffend, balancing (inaudible) interests against the public safety and protection, I decline to order a DNA sample. There is a mandatory victim surcharge of $200, I’ll waive, I’ll waive court costs, which are $2. The victim surcharge will be paid within 24 months. Any comments or questions? MS.

MCCOMB: Would Your Honour consider the prohibition order under 30.2(1) (sic), where an individual is convicted the court should consider whether or not a prohibition should be imposed with respect to seeking, obtaining employment where you’re in a position of power over money. Essentially, the wording is -- THE COURT: What section, I’m sorry? MS. MCCOMB: Thirty, pardon me, 380.2(1). MR. SEIGAL: Sorry, can I have the

Section number one more time? MS. MCCOMB: 380.2(1). THE COURT: Well, he’s already working in a position that does that, he’s, he drives around cars I gather, so ... MS. MCCOMB: Your Honour -- THE COURT: Test drives and so on, so he’s in -- MS. MCCOMB: Your Honour -- THE COURT: -- he’s in possession of this, of the property of another. MS. MCCOMB: Over the real property, money, or valuables security. Real property being defined as -- THE COURT: Does that say real property, okay. MS. MCCOMB: Yeah, real property, money, or valuables security of another.

THE COURT: Volunteer in any capacity, money or valuables security, okay. MS. MCCOMB: It, it -- THE COURT: You want me to run it concurrent with the probation order? MS. MCCOMB: The court has the discretion for any duration which the court deems appropriate. THE COURT: Because it’s essentially the same thing that I’ve done in his condition that I’ve put in his probation order. Okay, you have any comment on that? MR. SEIGAL: I, I think, Your Honour, can take notice of the fact that when the custodial sentence is over, he has a strong support base in the community.

The massive display of support makes it logical for the court to infer he’s going to end up volunteering in some capacity. So the idea of prohibiting him from being able to do anything, that clause could capture so many things for him to be able to take

part in the church, and assist other people. I would say that the, the condition already imposed in the probation is more than sufficient in the circumstance. THE COURT: But I guess the Crown’s going to respond he can be a volunteer, and it’s just, he can’t be a volunteer in any capacity

but only regarding authority over real property, money. MR. SEIGAL: Your Honour’s concluded based on the low risk and the fact that his rehabilitation is substantial. THE COURT: Okay. MR. SEIGAL: And so it’s really a question as to what end. THE COURT: I’m, I’m satisfied that the condition that I have in the probation order is sufficient protection for the, for the public in this particular case. And I, I agree for that very reason, very low risk to reoffend. _____