R. v. Arsenault Date:, 2013 BCPC 371

Citation: R. v. Arsenault Date: 20131016 2013 BCPC 0371 File No: 199812-2-C, 200673-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERIC DAVID ARSENAULT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: J. Neal Counsel for the Defendant: J. Douglas

Place of Hearing: Surrey , B.C. Date of Hearing: October 16, 2013 Date of Judgment: October 16, 2013 [ 1 ] THE COURT : Eric David Arsenault is before the court to be sentenced in respect to charges on two Informations following submissions this morning. On Information 199812-2-C, an Information which the Crown proceeds by indictment on, Mr.

Arsenault is charged and has pled guilty to each count of fraud of financial institutions in respect to the first four counts, and on Count 5 in respect to a fraud on the Ministry of Social Development of the Province of British Columbia. [ 2 ] I understand, after reviewing material filed in the Crown's book of documents, which is Exhibit 1 in this sentencing, those 5 counts cover 66 incidents between January 13th of 2012 and May 13th of 2013.

Of those 66 incidents, three incidents were attempts, and in the 63 other incidents he was successful in defrauding the institutions or the Provincial Government, or essentially both in the process. [ 3 ] In each case a similar format was followed. Mr. Arsenault was part of a group of people who perpetrated these frauds. He was essentially the "front person" for that group. The scheme involved a member of that group approaching individuals, who had received crisis welfare cheques, with an offer to those individuals to make some easy money. The cheques were then turned over and altered to show Mr.

Arsenault as the payee, rather than the individual who had received the cheque, and the value of the cheque was changed to a greater amount. Mr. Arsenault would then take the cheque, purporting to be the lawful payee, and cash the cheque at a financial institution. The original payee, who had turned over the original cheque, would receive a third of the proceeds, Mr. Arsenault received a third, and the rest of the group also received a third of the proceeds. Mr.

Arsenault was not the person with the skills to alter the cheques; he was the individual who, as I said, presented the cheques for payment which now appeared to be in his name. [ 4 ] The original cheques were in amounts, based on my review of the circumstances provided by the Crown, ranging from $20 to $400, most of those cheques at the lower end of that range. When altered, the cheques were cashed for amounts which ranged from about $800 up to $1590 which was the largest one that I noted in the list.

The total amount of the frauds and attempts, that is the cumulative value of the 66 cheques altered, was $58,446.05. [ 5 ] To put this offence in perspective, in dollar terms this is the largest fraud the Ministry has investigated. In the fiscal year 2012 into 2013, this fraud amounts to, by my calculation, about one-quarter of the total cheque frauds investigated by the Ministry during that period. [ 6 ] Frauds of this kind, and this series of frauds totalling such a substantial amount, have a serious negative impact on the income assistance and welfare systems of this province.

A victim impact statement has been filed with the material. From that, and the submissions of the Crown, it appears that, of course, this is taxpayer money intended to assist the most vulnerable people living in marginal circumstances, often involving people who are homeless and who may suffer mental and physical challenges. There is an enormous commitment of resources required to track this kind of fraud and to identify and prosecute perpetrators; scarce resources, therefore, are further depleted in this process. [ 7 ] Confidence in the welfare and income assistance systems is compromised.

Financial institutions may lose confidence in the integrity of Ministry cheques. At least one institution suspended acceptance of those cheques for a period of time which caused hardship for legitimate recipients in desperate need. I am advised that that institution is now taking the cheques again, but for at least a period of time they were declining to do that. [ 8 ] Although Mr. Arsenault was one part of a group and perhaps not the person with the special skills required to alter the cheques, he played a vital role and shared in equal measure with others involved. [ 9 ] Mr.

Arsenault has a very substantial criminal record, substantially for property-related offences. I counted 27 adult criminal convictions, of which 16 are property offences. He has five breach convictions. There are other offences on his record. In 2003 he served an effective 18-month jail sentence for property offences. Other sentences have ranged up to a year. He has been placed on two conditional sentence orders.

On December 9th of 2011 he was placed on a six-month conditional sentence order for possession of stolen property. [ 10 ] The first 17 incidents covered by the charges before me were committed up to March 29th, 2012 when I understand that Mr. Arsenault confessed to investigators that he had committed the first five incidents. He nevertheless resumed committing offences covered by the charges that I am dealing with on April the 11th of 2012. He committed 28 offences, by my count, leading up to a charge of break and enter and obstruct on June 26th of 2012.

He was next arrested on July 27th of 2012 and detained, by which point he had passed 20 more fraudulent cheques. He was in custody and serving a five-month sentence imposed on September 21st of 2012 for theft, obstruct and uttering forged documents. He returned to the community with an 18-month probation order. He then passed 12 more fraudulent cheques between January the 8th of 2012 and May 13th of 2013, the final incident covered by this Information. He was on probation during that time. [ 11 ] To summarize, Mr.

Arsenault continued to commit offences in respect of the charges before me while on a conditional sentence order, while before the court charged with the earliest of the offences, and while on probation in respect of other offences he had committed. [ 12 ] I have reviewed the pre-sentence report. Mr. Arsenault is 39 years of age. He is of Inuit heritage through his mother. He had a very difficult upbringing. His parents abused substances and that has been his terrible burden as well since his early teenage years. He has abused alcohol, marihuana, crack, methamphetamine and heroin. During periods of sobriety, Mr.

Arsenault has held a job and was a valued employee, but that last occurred several years ago. He has been in custody for three-and-a-half months now and has worked earnestly to develop skills through programs offered within the institution. This has also occurred in the past. He is anxious to beat his

severe addictions and to succeed in the community. His next plan, I understand, is to upgrade his GED standing. But he has not beenable in the past to overcome the power of his addiction once he returns to the community, and he quickly falls back into substance abuseand related criminal activity which supports that substance abuse. That has been demonstrated in his recent history that I have justoutlined. [13] Mr. Arsenault is no longer in a relationship. He is the father of three children who are now in their late teens or early 20's.

Heis a man who has the desire to do well, but has not done what he has to do once he returns to the community in order to live a healthylifestyle which would overcome criminal activity. He would like to go to the Maple Ridge Residential Treatment Program, but that willbe a challenge because he is likely to be prohibited by the Ministry from ever again collecting welfare, and so finding the money to payfor that program will be a challenge. [14] He has not participated in rehabilitative programs in the past in the community.

He is viewed as unlikely to succeed oncommunity supervision, certainly at this point, because the power of his addiction is not something, certainly that I could find he couldat this time control in the community, or in the reasonably foreseeable future. [15] He has also pled guilty on Information 200673-1 on Count 2 to theft of two decorative urns from a gravesite among the many atValley View Memorial Gardens on June 24th of this year. Their total value is $500. He has been in custody ever since his arrest as heleft those premises, carrying the urns, on June 24th.

I understand that 30 days of that custodial period since June 24th was spent servinga sentence on a breach charge. [16] The Crown in respect to these pleas of guilty is seeking a two to three-year sentence in respect to the five fraud counts, plus aconsecutive sentence of five to six months for theft, subject to the totality principle considerations. Mr.

Douglas, on behalf of Mr.Arsenault, proposes that he be granted credit for time served, and then a further total two-year federal sentence in order to allow Mr.Arsenault to benefit from the drug addiction programs available in the federal institution. [17] The Crown has referred me to several cases which I have reviewed: R. v. Harrison (Surrey reg. no. 189920-1 January 26, 2012)a decision of Judge Miller of this court; R. v. Jaillet (Surrey reg. no. 193460-1 July 5, 2012) which is a decision of Judge Gordon; R. v.Molloy (Surrey reg. no. 194450-1 January 23, 2013) which is a decision of Judge Gardner; R. v.

Parker (Vancouver reg. no. C28487-01-D February 23, 2000) which is a decision of Judge Howard; and R. v. Turcotte (1995), (BC CA), 63 BCAC 79 whichis a Court of Appeal decision in this province in 1995. Each outcome in those cases, of course, turns on its particular facts. The amountsof the fraud and the records of the individuals involved vary, but are generally ranging lower than is the case in respect of Mr. Arsenault.

They range from a conditional sentence order of two years less a day in Jaillet, to six months, one year, 15 months and 18 monthsconventional jail with probation in the other cases. [18] I take account here of Mr. Arsenault's early pleas, his relatively young years, and I say that, realizing that 39 is certainly movingon but it is certainly not an age at which a person cannot become productive in the community through determined commitment evenwhere significant addiction is present. [19] On the other hand, the amounts involved here and the relentlessness of Mr.

Arsenault's offending, despite being before the courton offences at the time and subject to court orders as part of sentences imposed, is a substantial aggravating feature. Further, thecommunity, in my view, at this stage cannot be assured of security from Mr.

Arsenault's relentless offending in this way until his drugissues have been brought under control, and that is not something that I could say, based on his history, is likely to occur in the short ormedium term. [20] Globally, I would view a 30-month jail sentence as appropriate, having considered the totality principle. [21] I impose the following sentences: On Information 200673-1, in respect of Count 2 which is the theft on June 24th of 2013 of theurns from the cemetery, I give Mr. Arsenault credit for three months of pre-sentence custody.

I impose one additional day. [22] On Information 199812-2-C, on each of the five counts to which he has pled guilty, those are the fraud counts, on each of thosefive counts, concurrent with each other, I impose a 27-month sentence of imprisonment.

That is in respect to each count, concurrent witheach other but that is consecutive to the sentence on 200673-1. [23] I am going to address the restitution order that the Crown seeks, and the victim fine surcharges, of course, are waived. (SUBMISSIONS BY COUNSEL) [24] In respect to the TD Canada Trust, there will be a stand alone restitution order in the amount of $21,030.50. And similarly, anorder in favour of the Royal Bank of Canada for $16,176.

And then just going down, those are the bold figures, the CIBC order will bein the amount of $870, the Bank of Montreal, BMO order will be in the amount of $2,502, and the order in favour of the Province ofBritish Columbia will be $17,867.55. [25] MR. NEAL: And if that could read "Province of British Columbia (Ministry of Social Development)"? [26] THE COURT: Province of British Columbia (Ministry of Social Development). [27] MR. NEAL: Thank you, Your Honour. And that leaves the DNA order. It's a secondary designated offence. [28] THE COURT: Any submission? [29] MR.

DOUGLAS: No. [30] THE COURT: I am satisfied, based on the considerations that apply here, the minimally intrusive nature of that procedure, andthe past history, that it is justified. Mr. Arsenault, there will be an order that you supply a sample of your DNA to the National DNA

Databank in respect to the fraud-related convictions as a secondary designated offence. [ 31 ] MR. NEAL: And I would direct a stay of proceedings with respect to Counts 1 and 3 of Information 200673-1, and if I have not done so already, Information 199812-1. (REASONS FOR SENTENCE CONCLUDED)