R. v. Squires, 2020 NLSC 120

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Squires , 2020 NLSC 120 Date : September 10, 2020 Docket : 201801G2028 Her Majesty The Queen v. ANNE MARIE SQUIRES Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: July 28, 2020

Summary: The first time offender was a real estate broker. She faced four charges after she stole money from her company’s trust account and defrauded a real estate commission factoring company of monies advanced on fictitious agreements of purchase and sale. Sentences of two years less a day, one year, two years less a day and one year were reduced to a combined sentence of two years less a day after certain of the sentences were made concurrent as being part of a single criminal enterprise and another was made concurrent based upon the principle of totality.

In addition, the offender was made subject to an order of probation for two years and was ordered to make restitution of $522,386. Appearances: Arnold W. Hussey, Q.C. Appearing on behalf of the Crown

Randolph J. Piercey, Q.C. Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: PricewaterhouseCoopers v. Bank of Montreal, 2017 NLTD(G) 43; R. v. Burback, 2012 ABCA 30; R. v. Hunt,2018 NLSC 190; R. v. Noseworthy (6 September 2019), St. John’s 0118A-00866 (N.L. Prov. Ct.; R. v. Burke, 2018 NLCA 31, aff’g 2016NLTD(G) 135; R. v. LeRiche, 2018 NLSC 145; R. v. Judd, 2012 BCPC 7; R. c. Thibault, 2015 QCCQ 8910; Marchessault c. R. (1984), (QC CA), 41 C.R. (3d) 318, 1984 CarswellQue 20 (C.A.); R. v. Davis, 2014 ABCA 115; R. v. Ladouceur, 1982ABCA 67 , [1982] A.W.L.D. 537, 37 A.R. 65 (C.A.); R. v.

Johnson, 2010 ABCA 392; R. v. Briand, 2010 NLCA 67; R. v.Collins, 2010 NLTD 7; R. v. Byrne (2009), (NL PC), 286 Nfld. & P.E.I.R. 191, 883 A.P.R. 191 (Nfld. Prov. Ct.); R.v. Clarke (2000), (NL SC), 190 Nfld. & P.E.I.R. 263, 576 A.P.R. 263 (Nfld. S.C. (T.D.)); R. v. Harty, 2004NLSCTD 181; R. v. May, 2011 NLTD(G) 33; R. v. Brennan, 2008 NLTD 61; R. c. Lacasse, 2015 SCC 64; R. v. Hutchings, 2012 NLCA2; R. v. Roberts, 2019 NLCA 43; R. v. Taylor (1997), (SK CA), 122 C.C.C. (3d) 376, 15 C.R. (5th) 48 (Sask. C.A.);R. v. Duguay, 2019 BCCA 53; R. v. Dunn, 2011 NBCA 19; Minot v.

Canada (Attorney General), 2011 NLCA 7 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Real Estate Trading Act, R.S.N.L. 1990, c. R-2 REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] Anne Marie Squires has pleaded guilty to the following charges under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”): Between the 3rd day of July, A.D., 2014 and the 31st day of December, A.D., 2015, at or near St.

John’s, in the Province ofNewfoundland and Labrador, did unlawfully steal monies, the property of 50549 NL Inc. operating as Exit Realty On the Rock, to avalue exceeding $5000.00, thereby committing an indictable offence, contrary to

Section 334(

a) of the Criminal Code; Between the 24th day of September, A.D., 2015, and the 2nd day of February, A.D., 2016 at or near St. John’s, in the Province ofNewfoundland and Labrador, did by deceit, falsehood, or other fraudulent means, defraud Access Easy Funds Ltd., of monies and/orgoods in an amount exceeding $5000.00, thereby committing an indictable offence, contrary to Section 380(1)(

a) of the Criminal Code; Between the 24th day of September, A.D., 2015, and the 2nd day of February, A.D., 2016, at or near St. John’s, in the Province ofNewfoundland and Labrador, knowing that certain documents, to wit: false purchase and sales agreements, were forged, did unlawfullycause employees of Exit Realty On The Rock and Access Easy Funds Ltd., to act upon them as if they were genuine, thereby committingan indictable offence, contract to Section 368(1)(b)-368(1.1)(

a) of the Criminal Code; Between the 3rd day of July, A.D., 2014 and the 2nd day of February, A.D., 2016, at or near St. John’s, in the Province of Newfoundlandand Labrador, being a trustee of 50549 NL Inc. operating as Exit Realty On The Rock, for the use or benefit, whether in whole or in part,of other persons or for a public or charitable purpose with intent to defraud and in contravention of her trust, did convert monies to a usethat was not authorized by the trust, thereby committing an indictable offence, contrary to

Section 336 of the Criminal Code. [2] The facts upon which the offender was convicted are as set out in an Agreed Statement of Facts that was filed with the Court. [3] It is now for me to impose a sentence upon Ms. Squires. issue [4] What is an appropriate combined sentence to be imposed upon Ms. Squires?

summary of the fACTS The Offences: [5]

Section 334(

a) of the Code – This represents the theft in excess of $5,000 from 50549 NL Inc. (“50549”) operating as Exit

Realty on The Rock (“Exit Realty”) between July 3, 2014 and December 31, 2015. Under the Code , it is punishable by imprisonment of up to 10 years. Because the theft is over $5,000,

section 742.1(f)(viii) of the Code precludes a conditional sentence. [ 6 ] Section 380(1) (

a) of the Code – This represents the fraud on Access Easy Funds Ltd. (“Access Easy”) in excess of $5,000 from September 24, 2015 to February 2, 2016. The Code calls for imprisonment not to exceed 14 years. A conditional sentence is not available by

section 742.1 (c). [ 7 ] Section 368(1) (b)- 368(1.1) (

a) of the Code – This represents the forgery of documents (false purchase and sale agreements) between September 24, 2015 and February 2, 2016, which unlawfully caused employees of Exit Realty and Access Easy to act upon them as if genuine. The range of sentence under the Code is imprisonment not to exceed 10 years. A conditional sentence is available. [ 8 ]

Section 336 of the Code – This is the breach of trust charge between July 3, 2014 and February 2, 2016 and represents the conversion of trust monies from 50549 to the offender’s own use with the intent to defraud and in contravention of that trust. The Code provides for up to 14 years’ imprisonment. A conditional sentence is not available by

section 742.1 (c). The Facts Theft and Conversion of Trust Funds [ 9 ] The facts in support of the charges of theft and conversion of trust funds are that Ms. Squires was the sole shareholder of 50549, which operated a realtor franchise known as Exit Realty. In addition to being the sole shareholder of 50549, Ms. Squires was a licensed real estate sales agent and a real estate broker (a broker can own a real estate firm and hire sales agents). Under the Real Estate Trading Act , R.S.N.L. 1990, c. R-2 , Exit Realty was required to maintain a trust account.

The trust account in question was established with the Bank of Montreal. All monies in that trust account belonged to clients of Exit Realty and could only be accessed in accordance with real estate transactions. [ 10 ] Between July 3, 2014 and February 2, 2016, monies were being improperly transferred from the Bank of Montreal trust account to a general account of 50549 by Ms. Squires or by others at the direction of Ms. Squires.

This was done to avoid cheques written on the general account being returned for non-sufficient funds. [ 11 ] The Bank of Montreal closed the Exit Realty trust account on a date unknown, but as of February 1, 2016, it was completely depleted. On February 2, 2016, Ms. Squires met with the Superintendent of the Financial Service Regulation Division of the Provincial Government. Ms. Squires provided a list of properties associated with the trust account which should have held a balance of $123,750. At that meeting, Ms.

Squires made no admissions with respect to the missing funds nor did she acknowledge the accuracy of the balance. [ 12 ] On February 5, 2016, Bank of Montreal appointed PricewaterhouseCoopers Inc. (“PWC”) receiver of 50549. Between February 1 and 5, deposits totaling $124,000 were made to the trust account and of this sum $12,000 was traceable to specific transactions.

According to PWC, the balance of $112,000 was deposited to replace funds that had been withdrawn from the trust account. [ 13 ] Because no forensic audit was carried out by the Province’s Comptroller General, it was difficult to determine the precise shortfall in the trust account. There is no clear indication where the $112,000 came from, but it is referenced in my decision relating to the insolvency of 50549 ( PricewaterhouseCoopers v. Bank of Montreal, 2017 NLTD(G) 43).

Nevertheless, $112,000 was acknowledged by the offender as being the amount stolen from 50549 and converted from the trust account between July 2014 and February 2016. Fraud and Forgery [ 14 ] The evidence establishes that approximately 14 months after the theft and conversion of trust funds began in September of 2015, the offender commenced a scheme to deceive Access Easy into advancing to her commissions on real estate sales. This involved using false and forged documents with the promise that the advances would be repaid upon receipt of the commission by Ms. Squires.

She would submit a purchase and sale agreement along with copies of a deposit letter, a finance approval letter (from a mortgage broker owned and operated by her), and a sheet with the name of the sales agent and the date of the sale. False names for sellers and buyers were used and at times the documentation referred to properties that did not exist. In other purchase and sale agreements, the names of existing vendors or purchasers were used and the signatures were forged. Initially, some repayments were made to Access Easy, but they were never sufficient to clear the account.

In an effort to delay detection, the offender submitted false amending documentation that created new closing dates for the fictitious transactions. [ 15 ] The fraudulent activity occurred from September 2015 until February 2016. Between September 2015 and December 2015, Access Easy advanced $385,898 to the account of 50549. Between January and February of 2016, Access Easy transferred $106,428 to a credit union account in the name of Ms. Squires.

In total, there were 33 fraudulent and forged purchase and sale agreements, which resulted in Access Easy advancing $522,386 to the offender to which she was not entitled. SENTENCING PARAMETERS AND PRINCIPLES [ 16 ] In arriving at an appropriate sentence, consideration must be given to the principles of sentencing set out in

section 718 of the Code and, in particular: denunciation, through deterrence, both general and specific; reparation to both the victims and the community; rehabilitation; and the promotion of a sense of responsibility in offenders for the harm they have caused. [ 17 ] The principle of totality will be applied to ensure that the combined sentence is proportionate to the gravity of the offence and degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison with sentences imposed for similar offences under similar circumstances. The Pre-Sentence Report

[ 18 ] At the instance of the Court, a Pre-Sentence Report (“PSR”) was prepared. I will go through it in some detail. Social History [ 19 ] The offender is 61 years old, the oldest child in a family from St. Mary’s Bay. Because both of her parents worked in the fishery, the offender became the “mom of the household”. She reports that she and her siblings “grew up poor” in a strict household. She left for St. John’s at 16 years old, found employment, and got married at 19. She and her first husband had one daughter. She described her husband as “a good man when he wasn’t drinking”.

He was violent and they divorced after 11 years. The offender helps support her ex-husband’s adopted son because, as she says, he is her daughter’s stepbrother. [ 20 ] The offender has completed three years of post-secondary education, including business courses. She has held various types of employment and entered the real estate field with ReMax. In 2004, she was approached by Exit Realty to purchase a franchise. She expanded that business in Newfoundland and in Atlantic Canada.

In 2016, her license was suspended because of the events giving rise to the charges against her. [ 21 ] Currently, the offender lives and works in the hospitality sector in a small coastal community in the Province that is popular with tourists. [ 22 ] The offender is married but her husband lives in St. John’s. Her husband is supportive of her. He reported to the author of the PSR that at the outset of these events, the offender had suicidal thoughts.

He said that she is remorseful, particularly for the financial effects her actions have had on her agents. [ 23 ] The offender’s daughter gave a positive report on the offender to the author of the PSR. [ 24 ] The offender reported that she wishes she could go back and undo all of the harm that she has done. She described her actions as “stupid” and said she “knew the difference” but was “desperate”. [ 25 ] The offender stated to the author of the PSR that she intends to stay in the community where she is currently living.

She would like to open some type of shelter or community centre for those who are homeless or suffer from addiction. Available Treatment Services (including Psychiatric) relative to the Risk/Needs of the Offender [ 26 ] The PSR reports that the offender would benefit from counselling. This is available through Mental Health and Addiction Services which has an office in the community where she lives. Suitability for Community Supervision [ 27 ] The author of the PSR reports that the offender appears to be suitable for community supervision.

She has complied with the conditions of her release, has been co-operative, and has the support of family and friends. Criminal Record [ 28 ] The offender has no prior criminal record. Risk Assessment [ 29 ] The PSR reports that the Level of Service/Case Management Inventory (“LS/CMI”) is a risk and need assessment tool which assesses the research literature’s “central eight” risk/need factors. These are: Criminal History; Education/Employment; Family/Marital; Leisure/Recreation; Companions; Alcohol/Drug Problem; Pro-criminal Attitude/Orientation; and Antisocial Pattern. According to the LS/CMI, Ms.

Squires is a very low risk to reoffend. Guilty Plea [ 30 ] Although it was not given early, I have taken into account that Ms. Squires pleaded guilty. Her counsel indicated early in the proceeding as managed by me that his client wished to plead guilty. One of the causes of the delay was that there was a disagreement between him and Crown counsel as to the amount of money at issue. Ultimately, proof was provided to the Crown that resolved the issue as put forth on behalf of the offender and as is reflected in the Agreed Statement of Facts. [ 31 ] The guilty plea shows that Ms.

Squires has taken responsibility for her actions; it has avoided witnesses having to testify as well as saving valuable Court time and resources (see, R. v. Burback , 2012 ABCA 30 ). This is particularly relevant in a commercial fraud case such as this (see R. v. Hunt , 2018 NLSC 190 ). I note here that the Crown originally asked for eight weeks to be set for the trial by judge and jury. Letter from Dr. Andrew Hunt [ 32 ] Ms. Squires’ local physician provided a letter to the Court. He detailed some of the adverse effects these charges have had upon Ms.

Squires’ well-being and the positive community activities in which she is engaged in the community where she lives. Ms. Squires’ Statement to the Court [ 33 ] At the conclusion of the sentencing hearing, Ms. Squires, who appeared by videoconference, read a lengthy statement.

Although ostensibly an apology and an acceptance of responsibility, it amounted to more of an effort to shift the blame for the downfall of her business and for her criminal activity on what she described as the discreditable corporation from which she acquired her franchises and the “loan sharks”, to use her term, to whom she turned for assistance when her finances began to unravel. This is consistent with her statement to the author of the PSR that although she knew what she was doing was wrong she was “desperate”. In

reality, Ms. Squires’ current circumstances result from hubris and greed, coupled with a willingness to act criminally in order to meet herfinancial obligations. [34] Nevertheless, I am satisfied that Ms. Squires is remorseful, particularly for the difficulties her criminal activities have causedher agents. CROWN CASES [35] The Crown has submitted a number of sentencing authorities. [36] In R. v. Noseworthy (6 September 2019), St. John’s 0118A-00866 (N.L. Prov. Ct.), Flynn P.C.J., at paragraph 15, states thatwhere large sums of money are involved, the general approach is to impose a two year sentence.

In Noseworthy, the amount of the fraudinvolved was $327,000. Flynn P.C.J. would have imposed a two year sentence but for the mitigating factors of which one was theoffender’s co-operation early on in the investigation. He imposed a sentence of 20 months for the fraud charge together with a sentenceof three months for the breach of trust to run concurrent to the sentence for fraud because the breach of trust was part of the samecriminal enterprise. [37] In R. v. Burke, 2018 NLCA 31, aff’g 2016 NLTD(G) 135, the principles of denunciation and deterrence are stressed, as isrestitution.

It identifies a range of two years where there is a breach of trust. [38] R. v. LeRiche, 2018 NLSC 145, at paragraph 39, states that there are few crimes where the aspect of deterrence is moresignificant. Reference is also made at paragraph 26 to the case of R. v. Judd, 2012 BCPC 7, where a two year sentence was imposed fortheft and fraud involving $200,000 by a mother of a seven year old.

At paragraph 41, the court addresses the issue of the role of publicmedia and its impact on deterrence, and notes that such public humiliation or embarrassment is not the equivalent of denunciation ofsuch behaviour by the court. [39] In R. c. Thibault, 2015 QCCQ 8910, the Quebec Supreme Court considered the range of sentences in a matter involvingbreaches of trust in the amount of $411,000. The decision extensively canvasses the case law and notes that the range of sentences isvery broad - the range is stated to be between 12 months and six years.

The factors that come into play are the amounts involved, theduration, the degree of sophistication, greed, breach of trust, lack of reimbursement, the degree of moral culpability, and the fact that actswere planned and deliberate. [40] The Thibault decision also discusses the issue of media coverage of a particular crime and the stigmatization suffered by anoffender. It quotes from Marchessault c.

R. (1984), (QC CA), 41 C.R. (3d) 318, 1984 CarswellQue 20 (C.A.), atparagraph 136: In terms of what is suggested whenever a public figure, a person in authority, a celebrity, etc. commits a crime, all or almost all of thefactors highlighted are present: the crime and punishment receive greater publicity, the shame and opprobrium are amplifiedaccordingly, and the financial loss resulting from loss of employment is proportional to the elevated income. In this way, it is accurate tosay that for such a person the punishment will appear crueler.

As popular wisdom would have it, the higher they fly, the harder they fall. Or, as a more elegant adage dictates, noblesse oblige. Ofcourse, this is not the law, but the law does not ignore common sense, and what are characterized here as mitigating circumstances areactually inevitable consequences, and those who expose themselves to them in such circumstances must be ready to face them and musthave been able to assess them, particularly where the offence is neither spontaneous nor isolated.

If this reasoning were not acceptable, it would be necessary, in the interests of consistency, to erect as a principle the fact that the higherthe rank or office of a figure in society, the better that person is known, the lighter the sentence should be and, in contrast, the morehumble or obscure a person is, the harsher it should be. I do not accept this proposition: the scales cannot accommodate these twounequal measures. Justice must be the same for all, important or insignificant, rich or poor. ...

The mere fact that the crime is committedby a rich or poor person, by an important or insignificant person, with all the attendant consequences, is not, in my view, one of thesefactors. Rather, these circumstances are non-aggravating. [41] In R. v. Davis, 2014 ABCA 115, at paragraphs 31 and 32, the court noted that for non-lawyer trust thefts and frauds foramounts that ranged from $175,000 to $255,000, the sentences ranged from 18 months to two years. [42] R. v. Ladouceur, 1982 ABCA 67 , [1982] A.W.L.D. 537, 37 A.R. 65 (C.A.), is a case of theft of $30,000 by a realestate agent.

The accused had no previous criminal record and no restitution had been made. A sentence of six months was increased totwo years on appeal. General deterrence was of primary importance. [43] R. v. Johnson, 2010 ABCA 392, involved a Ponzi scheme by which the victims were defrauded of $2.43 million. There weremore than 50 direct victims. Because the fraud involved more than $1 million,

section 380.1(1)(

a) of the Code applied, in addition toother statutorily aggravating factors. The court also identified that the offender had been sanctioned previously by the InvestmentDealers Association of Canada. DEFENCE CASES [44] The Defence also submitted a number of cases for my consideration.

[45] The Newfoundland and Labrador Court of Appeal in R. v. Briand, 2010 NLCA 67, dealt with a Ponzi scheme in which amarried couple stole $343,500 from a couple who borrowed money to give to the offenders. Even after the trial, the couple maintainedtheir innocence. Most of the money was recovered. The trial judge found a position of trust, but the Court of Appeal found that noneexisted. The Court of Appeal reduced the couple’s three-year sentence to 15 months for the husband and 10 months for the wife. [46] R. v.

Collins, 2010 NLTD 7, involves a Member of the House of Assembly who directed money from Government resources tohis own use. The theft appeared to be close to $300,000, but the Court ordered approximately $140,000 in compensation. The offencesoccurred over a six-year period. The sentence was 21 months. [47] R. v. Byrne (2009), (NL PC), 286 Nfld. & P.E.I.R. 191, 883 A.P.R. 191 (Nfld. Prov. Ct.), involved anotherMember of the House of Assembly. The fraud occurred over many years and involved hundreds of separate transactions. The offenderreceived benefits of $117,812 and illegally diverted more than $400,000.

He received a sentence of two years less a day. [48] In R. v. Clarke (2000), (NL SC), 190 Nfld. & P.E.I.R. 263, 576 A.P.R. 263 (Nfld. S.C. (T.D.)), the accusedstole from eight individuals. The amount of each theft ranged from $13,000 to $364,000. A small amount was recovered, but the Courtgave a $715,000 restitution order on money not recovered. The Court said there were only two mitigating features: a guilty plea and noprior criminal record. A prison sentence of 21 months was imposed. [49] In R. v. Harty, 2004 NLSCTD 181, a bank employee stole $143,902 by manipulating the bank’s internal system over sevenyears.

There had been no repayment but there was no prior criminal record and a guilty plea. A conditional sentence of 12 months wasimposed. [50] The Hunt decision is part of the complex commercial Hickman Equipment saga. It took many years to get to the point wherethe offender was sentenced on a guilty plea. The trial judge accepted a joint submission on sentencing by the Crown and the defence. Millions of dollars had gone missing and Mr. Hunt had improperly taken an $800,000 bonus, which he repaid. He was in poor healthand had a medically limited lifespan. He received a conditional sentence of one year. [51] In R. v.

May, 2011 NLTD(G) 33, the Court accepted a joint submission of two years less a day in a case where a manager ofclient care stole one-third to one-half of an elderly client’s dividends over a three to five year period. The offender pleaded guilty andhad a good pre-sentence report but had not returned any of the $962,009 stolen. [52] In R. v. Brennan, 2008 NLTD 61, the offender went to her former common-law partner’s parents’ house and stole their lifesavings that they had hidden. The amount was between $64,000 and $83,000.

She did not make restitution, was motivated by revengefor past grievances, and showed no remorse. Following a trial by judge and jury, she received nine months in jail. ANALYSIS [53] The Crown submits that a combined sentence of three years’ incarceration would be appropriate in this case. The Defencesubmits that a combined sentence of eight to 10 months would be more appropriate. The parties agree that a restitution order is calledfor. [54] The maximum sentence for each of the offences as set out in the Code is from 10 to 14 years.

I have also considered the rangeof sentences identified for similar offences in the cases highlighted by counsel. In considering a range of sentence, however, I am alsoguided by the words of Wagner J. in R. c. Lacasse, 2015 SCC 64, at paragraph 60, where he noted that sentencing ranges are primarilyguidelines and not hard and fast rules. [55] I note that the Hunt decision cited by the Defence is not helpful to my analysis. There, the trial judge accepted a jointsubmission.

Included in the quid pro quo were the complexity of the commercial finance facts, the matter had taken many years toresolve, the significant amount of restitution made by the offender, as well as his advanced age and failing health. Each case turns on itsparticular circumstances and the Hunt case is unique in many ways. In this case, because deterrence is such an important consideration,I would not have ordered a conditional sentence, even if such a resolution was not prohibited in respect of three of the charges.

Mitigating and Aggravating Factors [56] I have also considered the circumstances surrounding the offences for which Ms. Squires has been convicted, includingmitigating and aggravating factors. Mitigating Factors [57] Mitigating factors include Ms. Squires’ guilty plea and the fact that, at age 61, she has no prior criminal convictions. She hasrepaid $50,000 to Access Easy, the victim of the fraud and forgery. The positive PSR, her supportive family and her desire and efforts tobetter her community are also mitigating factors. [58] Ms. Squires has started, and is succeeding, in a new career.

She has plans for the future. She accepts responsibility for herwrongdoing. On this latter point, I note that although I accept Ms. Squires’ expression of remorse, her statement to the Court at thesentencing hearing was more about laying blame and deflecting from her responsibility than it was an unconditional expression of

remorse. Aggravating factors [ 59 ] In addition to what I might otherwise consider to be aggravating factors,

section 380.1 of the Code sets forth a number of specific items that affect sentencing for fraud: Sentencing — aggravating circumstances 380.1

(1) Without limiting the generality of

section 718.2, where a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: (

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

b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market; (

c) the offence involved a large number of victims; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (

d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community; (

e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and (

f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. Aggravating circumstance — value of the fraud

(1.1) Without limiting the generality of

section 718.2, when a court imposes a sentence for an offence referred to in

section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars. Non-mitigating factors

(2) When a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. [ 60 ] The aggravating circumstances identified in sections 380.1(1)(a), (

d) and (

e) are at play in this case.

Section 380.1(2) also has application.

Section 380.1(1.1) does not apply in this case. [ 61 ] The theft from the trust account, the breach of trust, the fraud, and the forgery are all very serious offences. These criminal acts were not committed in a moment of weakness. Ms. Squires was only “desperate” in a financial sense. Her criminal activity involved ongoing planned acts of deception. [ 62 ] The Crown submits that the real estate industry relies heavily on trust and ethical conduct, which extend to clients, co-workers, other realtors, and financial institutions. Persons in the position of Ms.

Squires are responsible for large sums of other people’s money, I agree. The sentence imposed must reflect these principles. [ 63 ] Ms. Squires began stealing from the trust account of 50549 in 2014 and continued to do so right up until the government agency

charged with overseeing the industry shut down Exit Realty in 2016. These transfers from the trust account were not the acts of someone acting recklessly or negligently. Ms. Squires made a conscious decision to engage in ongoing criminal conduct. [ 64 ] The fraud and forgery by Ms. Squires began more than a year after the thefts and conversion of funds. They were part of a deliberate and elaborate scheme. [ 65 ]

Section 718.2(a)(iii) of the Code deems it to be an aggravating factor if the offender in committing the offence abused a position of trust or authority. In Noseworthy , the court succinctly explains that in cases such as the one before the Court the main considerations in sentencing are general deterrence and denunciation. what is an appropriate combined sentence? [ 66 ] Because the offender is to be sentenced on a number of offences, the principles set out in R. v. Hutchings , 2012 NLCA 2 , apply.

They relate both to whether sentences for individual offences should be served consecutively or concurrently, and whether the combined sentence would be unduly long or harsh in that it would not be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 67 ] At paragraph 84 of Hutchings , Green C.J.N.L. (as he then was) set forth the following list of guidelines to be applied to achieve an appropriate and fit total sentence: 1.

When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2. The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged.

The sentencing judge must therefore turn his or her mind to its application. 4. The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5.

In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.

7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8. In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much. [ 68 ] Bearing these principles in mind, I will now determine a combined sentence for the offences committed by Ms. Squires.

Appropriate Sentences for each of the Offences [ 69 ] The Crown submits that an appropriate sentence for each of the offences would be two years leading to a combined sentence of eight years. The Crown concedes, however, that the charge of theft and the charge of conversion can attract concurrent sentences, as can the charge of fraud and the charge of forgery. However, Crown counsel submits that the sentences for fraud and forgery should be served consecutively to the sentences for theft and conversion.

As a result, before taking into account the principle of totality, the Crown recommends a combined sentence of four years in prison. This would be in addition to a restitution order for $522,386 in favour of Access Easy. [ 70 ] Counsel for Ms. Squires submits that the sentence for the theft and conversion charges should be six months to run concurrently with a sentence of eight to 10 months on the fraud and forgery charges. He agrees with the Crown’s position on restitution. [ 71 ] I have determined that appropriate sentences are as follow:

(1) Section 334 (

a) of the Code - theft charge from 50549 operating as Exit Realty between July 3, 2014 and December 31, 2015 in excess of $5,000: incarceration for one year; (2) Section 380(1) (

a) of the Code - fraud on Access Easy in excess of $5,000 from September 24, 2015 to February 2, 2016: incarceration for two years less a day; (3) Sections 368(1) (b)- 368(1.1) (

a) of the Code - forgery of documents between September 24, 2015 and February 2, 2016: incarceration for one year; and

(4) Section 336 of the Code - breach of trust between July 3, 2014 and February 2, 2016: incarceration for two years less a day. [ 72 ] Having determined fit sentences for each of the four offences, I must now turn my mind to whether they should be served concurrently or consecutively. Then I will take one last look at the combined sentence to apply the principle of totality. Consecutive or Concurrent Sentences? [ 73 ] The first issue is whether the conversion, theft, fraud and forgery offences can in whole or in part be considered to arise out of the same “criminal venture”.

The Court of Appeal has recently addressed the issue in the reasons of Green and White JJ.A. in R. v. Roberts , 2019 NLCA 43 , at paragraphs 43-50 : [43] The Crown did not challenge the finding of the sentencing judge that the robbery, weapon possession, face mask and assault offences arose out of a single criminal venture or that the resulting sentences should be ordered to be served concurrently with each other. [44] We would observe, however, that it is not the simple fact that offences occurred at the same time that necessarily determines that they amount to a single criminal venture.

As Rowe J.A. observed in R. v. Newhook, 2008 NLCA 28 , 276 Nfld. & P.E.I.R. 190, it may be that two offences, following “hard on the heels” of one another may be considered “sufficiently distinct in their nature” that they should not be considered to be a single criminal venture. Thus, in that case, a brutal assault and the subsequent kidnapping of a home occupier following a break and enter of a dwelling were not considered to be part of a single criminal venture related to the break and enter.

[45] Further, this Court in R. v. Frampton, 2018 NLCA 23 observed in obiter that the offences of being masked and armed in the commission of a robbery might as a matter of general principle be considered as separate offences and not as a single criminal venture.

We would add the caveat, however, that a consideration as to whether this should be so in a given case would be affected by whether there might be “double punishment” involved if the facts of being armed and masked were factors already taken into account in setting the level of sentence for the robbery offence itself, as it appears that it might have been in the current case. (See O’Quinn, at paragraph 20; R. v.

Bourgeois, 2018 NLCA 13 at paragraph 38 ). [46] It is also worth noting that even if factors such as temporal connection, similarity of victim and connections between offences (Bourgeois, at paragraph 36 ; R. v. Flynn, 2018 NLCA 61 , at paragraph 22 ) or the nature of the offences (O’Quinn, at paragraph 18) might be indicative in a given case, of a single criminal venture, concurrent sentences are not the inevitable result (Martin at paragraph 25; O’Quinn at paragraph 21; R. v. Murphy, 2011 NLCA 16 at paragraph 27 ). The Court still has a discretion to make them consecutive.

It might consider doing so if, for example, the offences are sufficiently distinct in nature that one or more of them cannot be said to amount to merely a particular method of carrying out another offence (Bourgeois, paragraph 37 ; Newhook, paragraph 17 ) or they consist of some other element that specifically merits special recognition as a separate delict (R. v. Mahoney, 2018 NLCA 16 at paragraph 37 ), or where for policy reasons they should be treated separately (Murphy). Furthermore,

section 718.3(4) of the Code , as discussed later in these reasons, would also require the sentencing judge to consider making the sentence consecutive in the circumstances indicated in that provision. [47] One might be tempted, therefore, if sitting at first instance and after hearing full argument, to conclude that robbery, followed by a distinct serious physical assault, as opposed to the usual threats employed to influence the turning over of the robbed items, could be considered sufficiently distinct in nature to justify the assault with a weapon charge not being considered part of the single criminal venture, with the result that a consecutive sentence would be imposed.

In like manner, depending on the factors taken into consideration in setting the robbery sentence, the offences of being armed and wearing a face mask might be considered to be separate offences, leading to all remaining sentences to be served consecutively. [48] Nevertheless, considering the concessions of counsel and the absence of argument on the point, it is not appropriate to disturb the sentencing judge’s conclusion.

Decisions on whether offences constitute a single criminal venture and whether they should be served consecutively or concurrently are, absent a legal or palpable and overriding factual error, entitled to appellate deference (Hutchings, at paragraph 24 ; O’Quinn, at paragraph 19).

In the circumstances, we would not disturb the conclusion on this point for the purposes of this appeal. [49] We would also add that even if some or all offences remained to be served consecutively after following the second step, it is likely that the sentencing judge, considering her approach to the matter, might well have achieved the same result by making the sentences concurrent for the purpose of achieving a proper total sentence when considering the third step in the analysis.

As Frampton, at paragraph 37 points out, characterizing multiple offences as a single criminal venture and deciding, as a consequence, whether they should be served consecutively or concurrently precedes and is not part of the totality analysis in step three. It was still open to the judge to make the offences concurrent in order to achieve a proper total sentence. [50] Accordingly, after considering the first two steps in the Hutchings analysis, it can be concluded that there is no basis for interference with the sentencing judge’s decision. (Note: Reference: R. v.

Willis , 2014 ONCA 178 ) [ 74 ] I agree with Crown counsel that the theft and conversion of trust funds offences all involve the same unidentified victims and that they constitute repetition of the same behavior toward those victims. The criminal behavior is linked both in time and in the common elements of the offences. Therefore, I would order that the sentences for theft and for conversion of funds be served concurrently. [ 75 ] The same analysis applies to the fraud and forgery charges.

That criminal behavior is also linked such that I would order that the sentences for fraud and for forgery be served concurrently. [ 76 ] However, the theft and conversion activities are distinct from the fraud and forgery offences. They are distinct from a criminal perspective. The factual circumstances differ. There are different victims. The theft and conversion of trust funds had been ongoing for a year prior to the acts of forgery and fraud being committed.

Therefore, subject to the principle of totality, I would order that the sentences for the theft and conversion of trust funds and the sentences for the fraud and forgery be served consecutively. Totality [ 77 ] I will next consider totality. Is the combined sentence unduly long or harsh in that it is not proportionate to the gravity of the offences and the degree of responsibility of the offender? [ 78 ] The total of the sentences that I would impose of one year, two years less a day, one year, and two years less a day is six years less two days.

Because I have determined that certain of the sentences should be served concurrently, the result would be a period of incarceration of four years less two days. The Crown has suggested a combined sentence of four years reduced to three based on

totality. Counsel for the offender suggests a combined sentence of between eight and 10 months. [79] Here, I have concluded that the total sentence of almost four years would be unduly long or harsh and that it would bedisproportionate to the gravity of the offences and the offender’s degree of responsibility.

I arrive at this conclusion after considering: (1) the sentence when taking into account the number of offences and number of victims – a limited number of serious offencesperpetrated against two victims, 50549 and Access Easy, although with adverse consequences for an unspecified number of others,including real estate agents and their clients; (2) the offender does not have a prior criminal record; (3) the impact of the sentence on the offender’s prospects for rehabilitation - although I have emphasized deterrence more thanrehabilitation, the sentence imposed must provide Ms.

Squires with a reasonable prospect of a fresh start; the 61 year-old offender hasbeen released without incident during the 45 months since the charges were laid and has begun a new life in a new community that shewants to help better; and she has been assessed at a low risk to reoffend; and (4) other factors, including society’s disapprobation of crimes that reflect a breach of trust. [80] Having analyzed the case law with respect to sentences imposed in similar cases, having considered Ms.

Squires’ circumstancesas well as the relevant circumstances related to these offences, I find that a combined sentence of incarceration for two years less a day isappropriate in this case. This can be achieved by making all of the other sentences run concurrently with the sentence for breach ofsection 336 of the Code. Probation [81] The PSR concludes that Ms. Squires is a good candidate for community supervision. A combined sentence of two years less aday enables me to make her subject to a probation order. This would keep her under state supervision and is consistent with section718.2(

e) of the Code that directs that all available sanctions, other than imprisonment, that are reasonable in the circumstances andconsistent with the harm done to victims or to the community should be considered for all offenders. [82] Section 731(1) of the Code provides: Making of probation order 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of theoffence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on theconditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender complywith the conditions prescribed in a probation order. [83] The purpose of a probation order is not to reflect the seriousness of the offences or the offender's degree of responsibility (R. v.Taylor (1997), (SK CA), 122 C.C.C. (3d) 376, 15 C.R. (5th) 48 (Sask. C.A.)). Rather, its primary purpose is toinfluence the future behaviour of the offender. Such orders serve to "reintegrate offenders into the community" as well as to protect thepublic (R. v.

Duguay, 2019 BCCA 53, per Fitch J.A.). Nevertheless, probation is not a tool to achieve general denunciation anddeterrence (R. v. Dunn, 2011 NBCA 19, per Richard J.A. (as he then was)). [84] Given that the combined sentence imposed for the offender is less than two years, given her age and character, and given thenon-violent nature of the offences, a probation order would be appropriate in these circumstances. In this case, I would impose a two-year probation order, subject to the statutory conditions, including;

(1) Keep the peace and be of good behavior;

(2) Abstain from communicating directly or indirectly with employees or officers of Access Easy or any former employee or clientof Exit Realty, without the express written consent of such person;

(3) Appear before Court when required; and

(4) Notify the Court or the probation officer in advance of any change in name or address and promptly notify the Court orprobation officer of any change in employment. [85] Together with the following additional conditions:

(1) Report to and be under the supervision of a probation officer to whom you are to report within two working days after releasefrom incarceration and, thereafter when required by the probation officer, and in the manner directed by the probation officer;

(2) Not be involved in any business or volunteer position that would place you in a position of trust without adequate supervision

by a responsible person; and

(3) Comply with all requirements of the probation officer with respect to counseling or other rehabilitative measures deemed appropriate by the probation officer. Restitution [ 86 ] Restitution is provided for by section 738(1) of the Code . It is a discretionary order.

Section 739.1 of the Code states that the person’s financial means or ability to pay do not prevent the court from making an order. The legal principles are set out in Noseworthy , Burke , and Minot v. Canada (Attorney General) , 2011 NLCA 7 . [ 87 ] The order sought by the Crown, and agreed to by the offender, would apply to the monies owed to Access Easy in the amount of $522,386. [ 88 ] I therefore order that the offender make restitution to Access Easy of $522,386.

DNA Order [ 89 ] Because these are property offences and not offences against the personal integrity of individuals, I decline to make the offender subject to an order to provide samples of bodily substances for the purpose of forensic DNA analysis pursuant to

section 487.051(1) of the Code . disposition [ 90 ] The offender is sentenced as follows:

(1) Breach of

Section 334(

a) of the Code – one year of incarceration;

(2) Breach of Section 380(1)(

a) of the Code – two years less a day of incarceration;

(3) Breach of Sections 368(1)(b)-368(1.1)(

a) of the Code – one year of incarceration;

(4) Breach of

section 336 of the Code – two years less a day of incarceration;

(5) The sentences imposed above for the breaches of sections 334 (a), 380(1) (

a) and 368(1) (b)- 368(1.1) (

a) of the Code shall be served concurrently with the sentence for breach of

section 336 of the Code for a combined sentence of incarceration of two years less a day;

(6) The offender shall make restitution to Access Easy Funds Inc. in the amount of $522,386; and

(7) The offender shall be subject to a probation order for a term of two years on the conditions referred to above. _____________________________ Robert P. Stack Justice