R. v. Bernard Date:, 2015 BCPC 107

Citation: R. v. Bernard Date: 20150402 2015 BCPC 0107 File No: 202619-1, 202619-2-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH DONALD BERNARD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.K. MacGREGOR Counsel for the Crown: A. Jantunen Counsel for the Defendant: M. Sandhu Place of Hearing: Surrey , B.C. Dates of Hearing: August 11, 18, 2014; February 23, March 26, 2015

Date of Judgment: April 2, 2015 [ 1 ] THE COURT : These are my reasons for sentence, and this is on two Informations; specifically, the substantive Information, 202619-1, Joseph Donald Bernard was charged and has since been convicted of defrauding 79-year-old Harold Crouter of over $10,000 between the dates of February 28th and April 6th of 2012, that fraud committed by making a series of withdrawals of $500 a day during most of those dates, by the unauthorized use of a Scotia Gold Passport VISA Card, contrary to s. 360(1) (

a) of the Criminal Code . [ 2 ] There is also the secondary Information of 202619-2-A, which is the charge of failing to appear in court on August 18th of 2012, which was the second day of continuation of this trial. Mr. Bernard entered a plea to that subsequent charge on February 23rd, 2015, and both matters were put over for the preparation of an in-custody Pre-Sentence Report. Sentencing was adjourned to March 26th of 2015 and I reserved my reasons until today.

THE POSITION OF CROWN AND DEFENCE [ 3 ] The Crown submits that a sentence of jail time, less time served, which would now be, as I calculate, some 95 days, as appropriate with respect to the breach, failure to appear in court on 202619-2-A. [ 4 ] On the substantive charge of fraud over $5,000, the Crown is seeking a sentence of four-and-a-half years of jail with respect to that, and each sentence should be served consecutive to each other. CIRCUMSTANCES OF THE OFFENCE [ 5 ] Mr. Crouter was 79 years of age at the time of this offence.

He had no surviving children and his wife had been moved into a care home the previous year, in 2011. His closest family members were his sister-in-law, Valerie Etchison, and her children, all of whom lived in Calgary, Alberta. [ 6 ] After Mrs. Crouter was moved into a care home, Mr. Crouter lived alone in his and his wife's prior residence at 175A Street in Cloverdale, British Columbia. Ms. Etchison travelled from Calgary to the Lower Mainland to visit Mr. Crouter every five to six weeks to make sure that everything was all right with him, and to assist him with various medical care, home and other matters. Ms.

Etchison testified at trial and she indicated that she had tried to get Mr. Crouter to move into the same care home as his wife, but that he had refused, and remained living alone. [ 7 ] It was also clear from the evidence at trial that Mr. Crouter was in the early stages of dementia or some other form of degenerative mental condition at the time of this offence. Both Ms. Etchison and Mr. Bernard described Mr. Crouter behaving in ways consistent with that situation. [ 8 ] In addition, Mr.

Crouter was diabetic and required daily insulin shots, and due to issues with his legs, he had difficulty walking and driving without assistance. [ 9 ] At trial it again became clear from Mr. Crouter's own evidence that he suffered from a dementia of some variety, although he was adamant that he had not given Mr. Bernard, or anyone else, permission to use his VISA card. [ 10 ] Mr. Crouter met Mr. Bernard when the latter came to his residence, offering to wash windows and clean eavestroughs in 2011. Mr. Crouter offered to allow Mr.

Bernard to live in his residence in exchange for assistance around the house and with other tasks. [ 11 ] Ms. Etchison, in her evidence, had noted that Mr. Crouter was generous to persons who were in need of assistance. [ 12 ] It was in these circumstances, while Mr. Bernard was residing with Mr. Crouter and in many ways purporting to be his caregiver, that he defrauded Mr. Crouter of significant sums of money. [ 13 ] When the fraud was uncovered, Mr. Bernard fled. In fact, this was at Mr. Crouter's bank. Mr. Bernard left Mr.

Crouter at that bank, alone, apparently with his automobile, unable to fend for himself. [ 14 ] Several days later, Ms. Etchison, upon hearing from the bank what had happened, arrived from Calgary. She found Mr. Crouter’s house apparently in a deplorable state. There was no food in the fridge and there were various items of disarray around the household. Most importantly, Mr. Crouter was in an extremely poor state of health. He had not been taking his insulin for several days and was seriously ill. He was taken to hospital due to malnourishment and issues with his blood sugar.

At that time his blood sugar was apparently "through the roof." He was hospitalized for nine days, and ultimately Ms. Etchison, upon Mr. Crouter's discharge, was able to have him move into the same care home Mrs. Crouter was residing at. [ 15 ] Ms. Etchison took power of attorney for Mr. Crouter. She and other relatives arranged for the significant clearing and cleaning of Mr. Crouter's home, and ultimately arranged for the sale of that home on her brother-in-law's behalf. [ 16 ] This trial proceeded on August 11th, 2014 and was scheduled to continue on August 18th, but Mr.

Bernard did not attend court on that date. He was apprehended by police on December 27th, and he has remained in custody since that date. The trial ultimately continued on February 23rd, and as I indicated, sentencing submissions were heard on March 26th; these Reasons for Sentence are available today. CRIMINAL RECORD [ 17 ] Mr. Bernard has a significant criminal record, which is outlined in the Pre-Sentence Report. His first conviction was for pointing a firearm, for which he was sentenced to 36 months' probation in 1978. In 1983 he was convicted of sexual assault and sentenced to 20 months' jail.

In 1988 he was convicted of simple assault and sentenced to 30 days' jail and fined a small amount of

money. [ 18 ] Mr. Bernard had no further convictions until 2004 when he was convicted of theft under $5,000. In 2006 he was convicted of several offences, including impaired driving causing bodily harm, theft over $5,000, possession of stolen property, escaping lawful custody, and other property offences. He was incarcerated for various periods of provincial custody for those offences. [ 19 ] Since 2008 until the date of this offence, Mr. Bernard had been convicted of theft under $5,000 six times.

He has also been convicted for failure to appear in court on a prior occasion, for which he was sentenced to 60 days' jail, and he has been also sentenced for three separate breaches of probation orders. All of these three breaches relate to failure to attend at appointments with his probation officer. PRE-SENTENCE REPORT [ 20 ] The Pre-Sentence Report describes 57-year-old Mr. Bernard as having had a dark and painful childhood. He was born in Campbellton, New Brunswick; however, he has no relationship with his family, which includes several siblings, as well as parents.

His peers now tend to be persons who are involved in criminal activity. [ 21 ] He has a history of frequently changing his residence, and prior to moving in with Mr. Crouter was of no fixed address. [ 22 ] He has a Grade 11 education and has been supporting himself through Social Assistance and also some self-employment, doing odd jobs with external maintenance to homeowners' properties. [ 23 ] Mr. Bernard, in the Pre-Sentence Report, claimed that he was given $2,000 to $3,000 by Mr. Crouter. This is at odds with his evidence at trial, where he claimed to have been given the money he withdrew from Mr.

Crouter's VISA account to Mr. Crouter. He also insisted to the Pre-Sentence Report author that he was "attempting to assist the victim," Mr. Crouter, "in better managing his finances." This assertion contrasts sharply with his testimony at trial when he stated that he was withdrawing the money in question because Mr. Crouter told him to, and that he, Mr. Bernard, felt it was inappropriate to act contrary to Mr. Crouter's wishes, despite the fact that he was of the view that such withdrawals were obviously contrary to Mr. Crouter's interests. I reject that evidence at trial. [ 24 ] Mr.

Bernard reports no mental health or brain injuries, and there was no evidence that he suffers from the same. He does claim to have cancer. The following was noted in the Pre-Sentence Report. The author did make inquiries on Mr. Bernard's behalf regarding medical information that he provided. The author states: In respect to his physical condition, the subject advises that he is losing weight and his energy level remains low. He insists that he has been diagnosed with cancer and has a tumor in his throat. He adds that his doctor has recommended that the tumor be removed, but no surgery has been scheduled.

When asked his physician's name and contact number, the subject was unable to provide such information. [ 25 ] He did provide the location of a specific medical clinic that he had attended in the past, and the author of the Pre-Sentence Report did contact that clinic and received some information, but apparently the records did not outline any information regarding a diagnosis of cancer. There was some reference from early 2014 regarding a tumor on his left tonsil area, and an excisional biopsy had been recommended. But again, the documents do not mention that the subject had been diagnosed with cancer.

VICTIM IMPACT STATEMENT [ 26 ] Ms. Etchison, who has power of attorney to Mr. Crouter, prepared a full Victim Impact Statement. I will hit some of the highlights of that report. She says that the crime committed against Mr. Crouter, her brother-in-law, had more far-reaching implications beyond the material amount of money that was taken from him. It had substantial physical, emotional and financial effects that continue to affect his life. In addition to the fraud, the house was left completely disrupted and trashed, and there were substantial costs incurred by Mr.

Crouter and his family members regarding bringing that house to some semblance of order, so that it could be sold. [ 27 ] In addition, there were more intangible matters that Mr. Crouter had lost, specifically his independence, health and dignity. Ms. Etchison describes that her brother-in-law was always a strong, independent man, but that subject to these events, he was hospitalized for two-and-a-half weeks before being placed in a care home. The incident had traumatized him to a significant degree.

He was deprived of food and medication, and this added to his physical trauma, particularly that he was deprived of insulin for the number of days involved. [ 28 ] Ms. Etchison says that all these facts provide a small glimpse of the physical, emotional and financial effects that have changed her brother-in-law's life dramatically and, she feels, irreparably and permanently. [ 29 ] On the financial matters, Mr. Crouter did have to pay back, out of his savings (through power of attorney by Ms. Etchison) the VISA card expenses, by cashing in one of his savings.

He was not reimbursed by the Scotiabank for those fraudulent charges on his VISA card. PRINCIPLES OF SENTENCING AND SENTENCING RANGES [ 30 ]

Section 718 of the Criminal Code provides the primary principles of sentencing are denunciation of unlawful conduct, specific and general deterrence, the separation of offenders from society, rehabilitation of offenders, reparation for harm done, and the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 31 ] Subsection 718.2(

a) provides that a sentence should be increased or reduced as appropriate, to take into account aggravating or mitigating factors with respect to the offender and the offence. [ 32 ]

Section 718.2(a)(iii) and (iii.1) provide that a sentencing court consider evidence that the offender, in committing the offence,

abused a position of trust or authority in relation to the victim, and evidence that the offence had a significant impact on the victim,considering their age or other personal circumstances, including their health and financial situation, to be aggravating factors. [33] The definition of the position of trust or authority was considered by the Supreme Court of Canada in R. v. Audet (1996), (SCC), SCJ 61. Mr.

Justice La Forest, writing for the majority, noted at paragraph 35 that the French word "confiance,"according to Le Grand, Robert, is "the belief or firm expectation in something, or faith in someone." In English, of course, the word"trust" can have various meanings, especially in a legal context; however, considering that Parliament used "confiance" in the Frenchversion and the word "trust" in the English version, he doubts that the English word "trust" was used in s. 153(1) as the concept asdefined in equity.

Trust must instead be interpreted in accordance with its primary meaning, "confidence in or reliance on some qualityor attribute of a person or thing, or the truth of a statement." The word "confidence" is defined as follows; "the mental attitude of trustingin or relying on a person or thing, firm trust, reliance and faith." [34]

Section 718.2(

b) of the Criminal Code provides that a sentence imposed be similar to sentences imposed on similar offenders insimilar circumstances. In R. v. Angelillo (2006), SCCR 55, again a decision of the Supreme Court of Canada, Madam Justice Charon,writing for the majority, indicates as follows: The principles of sentencing are now codified in s. 718 to 718.2 of the Criminal Code. Provisions confirm that sentencing is anindividualized process in which the court must take into account not only the circumstances of the offence, but also the specificcircumstances of the offender (see Gladue; Proulx, at para. 82).

Thus, the objectives of sentencing cannot be fully achieved unless theinformation needed to assess the circumstances, character and reputation of the accused is before the court. The court must thereforeconsider facts extrinsic to the offence, and the proof of those facts often requires the admission of additional evidence. [35] The maximum sentence for fraud over $5,000 is 14 years of jail. The maximum sentence for failure to appear when prosecutedsummarily is six months in jail.

In fraud cases in which the accused commits a breach of trust against a vulnerable elderly victim, theprimary sentencing objectives are denunciation, general deterrence and restitution. Reference to R. v. McNaughton, the 12th of April2001, a decision of the British Columbia Supreme Court, New Westminster Registry, X05912, and to the decision of R. v. Kralik (2006),BCSC 1322, at paragraph 22. [36] Madam Justice Wedge, in the Kralik decision, quoted with approval the following passage from a decision of the Ontario Courtof Appeal in R. v. Nichols (2001), (ON CA), OJ 3220.

The fraud committed by Nichols warranted a significant penitentiary term. Three considerations mentioned by the trial judge supporteda substantial sentence, the need to deter and denounce those who prey on the elderly and vulnerable. In the trial judge's words, predatorswho target the weak, the sick, the elderly and the disadvantaged attract the most public opprobrium simply because such cowardlyconduct strikes at the core values of our society, mainly fairness and decency.

Where large sums of money are involved and there is noprospect of recovery, the principles of public denunciation of the conduct and deterrence to others are the dominant considerations. [37] In the case of McNaughton which is referred to, Mr. Justice Smith imposed a 30-month sentence on a first offender who was 59years of age at the time of sentencing. He had defrauded one elderly victim of $10,000 and another of $55,000. Mr.

Justice Smithconsidered an appropriate sentence for first offenders, having committed similar offences, to be in the range of 15 months and two years'probation, to three-and-a-half years' jail and restitution. [38] As noted in R. v. Anderson (2014), BCPC 3308, it is suggested that: A range is not, however, a straightjacket. As Mr. Justice Bastarache said in R. v. Stone, it would be wrong to assume that there is anyprecise range that will apply to every case.

In Anderson, the court went on to say that it is intended for the trial judge to balance uniformity in sentencing with their duty to considerthe circumstances of the particular case before them. [39] Sentencing considerations for failure to appear in court were considered in R. v. Sharp (2008), MBQB 227, at paragraph 10: The offence of failure to appear is a hybrid offence, and of course carries the maximum penalty of two years if dealt with indictably.

The two most important factors which determine the sentence for such an offence are the nature of the proceedings the offender missedand whether he surrendered to police. If the offender failed to appear for either a trial or a sentencing hearing, the court will assume thatthe offender failed to appear to avoid the consequences of conviction or sentence. And that is reference to a Practitioner's Guide, a Text for Sentencing. The authors of that publication stated that in most cases, a short,sharp sentence would be imposed.

However, he indicated that the accused before him had disrupted his trial by his conduct; he did notsurrender to police. Beyond question, a consecutive jail sentence was required, and three months, as recommended, was not adequate inthat case to preserve the integrity of the justice system and to deter this particular accused, Mr. Sharp, or others, from like conduct. [40] In this case, the Crown submits that Mr. Bernard's sentence for his failure to appear for his trial continuation should beconsecutive to a sentence on the substantive charge.

The two offences happened years apart and for separate and distinct events. Crownhas pointed out that Mr. Bernard's failure to appear on the substantive charge should not be an aggravating factor on his fraud sentence toavoid double jeopardy or res judicata issues.

MITIGATING FACTORS [ 41 ] Mr. Bernard's guilty plea for his failure to appear, as the Crown submits, is the only mitigating factor in this case. Although the accused's failure to plead guilty is never an aggravating factor, in cases such as this, a guilty plea would be a significant mitigating factor insofar as it would spare the victim from having to testify and save institutional resources, and in this case, there were several witnesses who were inconvenienced. Certainly Ms. Etchison having to appear from Calgary, and specifically Mr.

Crouter, who was suffering from some form of dementia himself, had to appear from his care home. [ 42 ] Ruin and humiliation have been noted to be mitigating factors in other fraud cases. There is no suggestion in this case that Mr. Bernard will face it as a result of this conviction. He has not lost any employment or faced public humiliation, or the disdain of his friends. To the contrary, it appears that Mr.

Bernard involved his friend, Nelson, in this fraud. [ 43 ] In rare cases, the offender's poor health may be considered a mitigating factor, and the evidentiary threshold for an offender's ill health to be considered such a factor was considered by our Court of Appeal in R. v. Slobbe (2011), BCCA 107 at paragraph 41. Quoting from an earlier case, R. v. Potts , of the B.C. Court of Appeal: It is relatively rare for the health of an offender to be taken into account in sentencing, but there are cases where an offender's health may be relevant. Certainly his health status may be relevant at sentencing in general.

These matters are best continued as part of the overall circumstances of the offender, rather than a basis for deducting time from an otherwise appropriate sentence. There are cases when such an otherwise fit sentence may be reduced on compassionate grounds, but such a reduction must be based on current, clear and convincing evidence. [ 44 ] In this case, Mr. Bernard's assertions that he has a cancerous tumour are not based on either current, or clear, or convincing evidence. There is no medical/legal letter obtained or otherwise.

Medical information as obtained from the Pre-Sentence Report author, and it would seem, on his own evidence, that if Mr. Bernard had received a cancer diagnosis for a throat tumor, yet no medical treatment had been sought for over at least a year, that Mr. Bernard's alleged health problems should in no way mitigate any sentence he receives. AGGRAVATING FACTORS [ 45 ] First of all, criminal history. Mr. Bernard has an extensive criminal history for a variety of different offences, including serious personal injury offences and sexual assault, and numerous convictions for property offences.

ACCUSED'S CHARACTER AND HISTORY [ 46 ] Mr. Bernard is not an individual of good character or reputation; on the contrary, while he states “that he no longer associates with negative peers, his history reveals that he tends to socialize with persons who engage in criminal activity.” Pre-Sentence Report at page 2. BREACH OF TRUST AND VULNERABILITY OF VICTIM [ 47 ] The present case involves a breach of trust of certainly a very high nature. Mr. Crouter had confidence in Mr.

Bernard, not only to live in his house and share living space without defrauding him, but to assist him in the necessary tasks which were difficult or impossible for Mr. Crouter to do himself. When he was "befriended" by Mr. Mr. Bernard, Mr. Crouter was living alone after his wife had recently moved into a care home. His only family support was from the family in Calgary. His physical and mental health were failing, and it appears from Mr. Bernard's own evidence that Mr. Crouter was not able to properly physically care for himself. Mr. Bernard purported to be Mr. Crouter's friend and caregiver at a time when Mr.

Crouter desperately needed both. Mr. Crouter invited Mr. Bernard into his home in shared quarters and Mr. Bernard assisted Mr. Crouter to drive him to various visits to his wife and run other errands. He was to make sure that Mr. Bernard was taking his insulin. Mr. Bernard convinced Ms. Etchison that he was a benevolent caregiver and that he had had prior experience with assisting other elderly persons in need. [ 48 ] It is suggested by the Crown that this was all a ruse and that, while it might not have been Mr. Bernard's initial motivation, it became a motivation. When given the opportunity, he defrauded Mr.

Crouter from as much money as it was possible until the fraudulent activity was detected. At that time, Mr. Bernard left Mr. Crouter to fend for himself in deplorable living conditions. Mr. Crouter's sudden physical decline appears to be related to the accused Mr. Bernard's fraud and abandonment. VICTIM IMPACT [ 49 ] As stated, it was clear from the Victim Impact Statement from Ms. Etchison that Mr. Crouter and his family suffered significant and ongoing harm as a result of Mr. Bernard's activity. LACK OF POSSIBILITY OF RESTITUTION [ 50 ] Mr.

Crouter was responsible for paying all of the credit card debts incurred by Mr. Bernard, and it appears that there is no possibility of restitution by Mr. Bernard. CASE AUTHORITIES ON THE SENTENCING RANGE [ 51 ] I have referred to the decision of McNaughton , where the facts were that a 59-year-old first-time offender was convicted of defrauding three unsophisticated and gullible persons in a loan fraud situation, and was sentenced to 30 months in jail. [ 52 ] In Kralik , the accused defrauded an elderly single woman of some $200,000 for home renovations conducted over a period of three years.

The victim in that case appeared to be suffering from mental decline. The accused had been convicted of similar scams in the past in theUnited States of America, and he had other convictions for theft for which he had received two years in jail. The victim testified at thepreliminary inquiry and the sentencing judge noted that she was extremely frail, but amazingly perseverant. This was not a fraudcommitted on a bank or a corporation, this was a fraud on one of the most vulnerable, isolated and fragile persons in our society, and thevictim, Ms.

L.'s, last independent years of her life were spent dealing with this accused and the aftermath of this conduct. In that case, Mr. Kralik was sentenced to four-and-a-half years in custody. [53] Madam Justice Wedge referred to a number of other cases in Kralik, such as R. v. Arnold (1995), BCCA 017011. In that case,an elderly woman was defrauded of the amount of $200,000, again in the course of performing home renovations. She was 82 years old,but it was a first offence for the accused in that case.

He was married and had done community work service and, despite the fact that hehad spent seven weeks in pre-trial detention, and was subject to a restitution order of $150,000, he was sentenced to three-and-a-halfyears in jail. In imposing that sentence, Associate Chief Justice Dohm of the Supreme Court considered that general deterrence was acompelling factor. The Court of Appeal upheld the sentence and observed there was no error in emphasizing general deterrence. [54] Another case referred to was R. v. Crause, a decision from the B.C. Supreme Court, 26th of July 1999, from the VictoriaRegistry.

The accused defrauded elderly citizens. I do not have details of the particular frauds, but they were not in a position of trust,like the matter before the court. Mr. Crause was a first offender with a young family. He was also aboriginal in origin and theprovisions of Gladue were engaged in the sentencing process. Nevertheless, Mr. Justice Hutchison of the Supreme Court concluded thatgeneral deterrence was the overriding sentencing principle and taking into account two-and-a-half months of pre-trial detention on thetwo-for-one principle, will give him five months credit, Mr.

Crause was sentenced to a further three years in custody. The restitutionorder, which apparently had some prospect of being filled, was also imposed. [55] In R. v. Linton, another decision of the British Columbia Supreme Court, the court imposed a sentence of three-and-a-half yearswith respect to an accused who had been convicted of defrauding an elderly victim of about $400,000. Again the accused was a firstoffender with no criminal record.

However, the court took into account primary sentencing objectives and imposed a significantsentence. [56] In Nichols, another decision from the Ontario Court of Appeal, (ON CA), 2001, OJ 3220, the Ontario Courtof Appeal imposed a four-year sentence. This reduced the sentence from the trial judge. The accused had defrauded an 82-year-oldwoman of $200,000. Initially the fraud had involved approximately $1,000,000, but the accused had returned some $800,000 to thevictim.

The Court of Appeal indicated that the accused was 29 years of age, with again, no previous criminal record, and had returnedsome 80 percent of the money he had taken. However, a four-year sentence was held by the Ontario Court of Appeal as an appropriatesentence. [57] Fortunately, in the case in front of me, Mr. Bernard was not able to defraud Mr. Crouter of all of his savings, and the amount ofmoney which he was convicted of defrauding is not as large as in the aforementioned cases. Nevertheless, the Crown submits that asentence of four-and-a-half years would be appropriate for a number of reasons.

Firstly, the breach of trust involved in the present case,and that that is egregious in the circumstances. It is reprehensible in general when offenders defraud elderly victims, either with loan orhome renovation scams, but Mr. Bernard's conduct is argued more extreme. He ingratiated himself to Mr. Crouter to the point of livingwith him as a caregiver, and Mr. Crouter depended on Mr. Bernard for his physical well-being. It appears that Mr. Crouter trusted Mr.Bernard more or less completely throughout that period of time they lived together, and in return for Mr. Crouter's kindness andgenerosity, in inviting Mr.

Bernard to live with him when he needed a home, Mr. Bernard defrauded Mr. Crouter of those thousands ofdollars, over $10,000. In the process, Mr. Crouter's health and feelings of self-worth and trust were severely adversely affected. [58] In addition, mitigating factors such as a guilty plea, a lack of a criminal record, youthfulness of the offender, restitution or areasonable prospect thereof, or public shame and humiliation, many of which are present in the cases where lower sentences are imposed,are absent in the present case.

And although the sum of money was not at the high end of the range, it was still a significant amount foran elderly pensioner like Mr. Crouter, with relatively modest savings. Ms. Etchison noted again that she had to cash in one of Mr.Crouter's investments to pay back the VISA debt and that Mr. Crouter was not reimbursed or compensated by the bank. [59] Defence counsel has suggested that because the amount of this fraud was so significantly less than those in the cases I havereferred to, that the sentence should be reduced significantly.

He submits that I should deal with this matter by way of a conditionalsentence, or alternatively, a maximum provincial sentence with a following probation order. [60] In R. v. Errison, my brother Judge Kitchen considered a conditional sentence order for fraud committed by an offender against awoman with whom he was in a close personal relationship, and so the breach of trust did come into play in that sentence. In consideringwhether a conditional sentence would be appropriate, Kitchen, J. referred to a decision of R. v. Ursel from 1997, that decision from ourBritish Columbia Court of Appeal.

In that case, Chief Justice Finch commented on the use of conditional sentences in such fraud cases. At paragraph 93, he stated: Given that the purpose of a conditional sentence is to supervise the offender's behaviour in the community, the primary considerationwould be whether the offender appears to be a person who is amenable to supervision and who is likely to comply with whateverconditions are imposed.

For this purpose, evidence would show 1) the offender's history of compliance or non-compliance with courtorders; 2) the offender's attitude towards authority in general; 3) indicia that the offender has taken or is willing to take responsibility forthe offence and for future conduct, and 4) remorse, would, in my view, be relevant. And this would of course assist the court to exercise the court's discretion regarding sentencing. [61] In the case before me, Mr. Bernard has a criminal history and a history of non-compliance with court orders. His attitude

towards authority appears to be negative, as indicated by his previous convictions for escape from lawful custody and failure to report to Probation, as well as the other criminal offences. [ 62 ] The Pre-Sentence Report indicates, and this is of concern to the court, that Mr. Bernard does not appear to take responsibility for his conduct towards Mr. Crouter. I referred to his evidence at trial and the differing versions that he gave to the author of his Pre- Sentence Report. In a sense, Mr. Bernard does not think he has done anything wrong, notwithstanding his conviction. [ 63 ] In my view, Mr.

Bernard would not be a candidate for a conditional sentence. It is also my opinion that the circumstances of this case require a longer sentence than that proposed, two years less a day, and it would not be appropriate, in any event, to be served in the community. [ 64 ] I have considered all of the principles of sentencing, including the mitigating and aggravating factors, and find that the primary factors involved in this case are denunciation of Mr. Bernard's conduct, and general deterrence so that others do not participate in similar activities. [ 65 ] Mr.

Bernard preyed upon a vulnerable, isolated, elderly victim and a significant sentence is required to reflect society's abhorrence for such conduct. [ 66 ] Accordingly, the sentence on the fraud charge will be that Mr. Bernard serve a period of custody for four years. [ 67 ] With respect to the charge of failing to appear in court, that will be a sentence of time served, indicating the 95 days time served. As this is pursuant to s. 524(4) (ii) of the Criminal Code , Mr.

Bernard is only entitled to one-for-one credit for the jail time served. [ 68 ] The four-year sentence for the fraud will run consecutive to the time served on the failure to appear charge. [ 69 ] With respect to both charges, I will deal with the victim impact surcharge as follows. There will be one day time served in default, in lieu of payment of any further fine, and that would apply to both the failure to appear charge and the fraud charge; time served in default, one day. [ 70 ] The Crown is also seeking the following ancillary orders, and first of which will be an order that Mr.

Bernard produce a sample of his DNA, which can be done in custody, and also a non-communication order under s. 743.21(1), essentially that Mr. Bernard not have any communication with Harold Crouter, or any member of his family, which will include Valerie Etchison, or any other member of Mr. Crouter's family. [ 71 ] Are there any other matters that I should address? [ 72 ] MR. JANTUNEN: No, Your Honour. [ 73 ] THE COURT: No? Okay, thank you. [ 74 ] MR.

JANTUNEN: Thank you, Your Honour. [ 75 ] THE CLERK: Your Honour, is the DNA discretionary or mandatory? [ 76 ] THE COURT: Oh, it is mandatory. [ 77 ] THE CLERK: Mandatory. And that applies just to -- [ 78 ] THE COURT: The fraud charge. [ 79 ] THE CLERK: Thank you. Same with the non -- [ 80 ] THE COURT: Yes, same with the non-communication, yes. [ 81 ] THE CLERK: Thank you, Your Honour. [ 82 ] MR. JANTUNEN: I'm sorry, I believe the DNA order is discretionary, according to my -- [ 83 ] THE COURT: Was it discretionary? But in this case I think it is appropriate that it be ordered, given the record of Mr.

Bernard and circumstances of this case. [ 84 ] MR. JANTUNEN: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)