R. v. Martin, 2023 ABCJ 122

In the Alberta Court of Justice Citation: R. v. Martin, 2023 ABCJ 122 Date: May 31, 2023 Docket: 210248696P1 Registry: High Prairie Between: His Majesty the King Crown - and - Cindy Martin Defendant Reasons for Sentence of the Honourable Justice S.P. Hinkley Introduction [ 1 ] Cindy Martin pled guilty to three offences on two informations; Information 210248696P1 Between the 11th day of December, 2018 and the 13th day of April 2020, both dates inclusive, at or near Slave Lake, Alberta did by Deceit Falsehood or other Fraudulent Means, Unlawfully Defraud Northern Lakes College of $285 000, a value exceeding $5000.00, contrary to Section 380(1)(

A) of the Criminal code of Canada . Between the 11th day of December , 2018 and the 13th day of April, 2020, both dates inclusive, at or near Slave Lake, Alberta did unlawfully make a False Document, to wit : a cheque, knowing it to be false with intent the said document should in any way be used or acted upon as genuine to the prejudice of Amber Laboucan, thereby committing forgery, contrary to Section 367(1) of the Criminal Code of Canada .

Information 210248852P1 Between the 1st day of May 2020 and the 30th day of September, 2020 both dates inclusive , at or near Slave Lake Alberta did by Deceit, Falsehood or other Fraudulent means Unlawfully defraud Desiray Jade Bystrom of a value not exceeding $5,000.00, contrary to Section 380(1)(

B) of the Criminal Code of Canada . [ 2 ] After taking her pleas the matters were adjourned from time to time for the authoring of both a presentence and Gladue report, which the Court has now received and reviewed. [ 3 ] It is now my task to pass a fit and appropriate sentence on this offender.

The Offences [ 4 ] Ms. Martin worked at the Northern Lakes College in Slave Lake over a period of approximately 13 years, rising to the position of Associate Registrar. This was a position of substantial trust at the institution, wherein one of her duties was overseeing admissions to the College.

During the last roughly 18 months of that tenure, the offender wrote herself over 130 cheques using the Northern Lakes College cheque book, which she had access to because it was secured in a cabinet in the offices that she worked in. [ 5 ] The cheques ranged between $500 and $5,000. [ 6 ] Three signatures were required on these cheques. The offender forged those additional signatures. Those signatures would have included Amber Laboucan. Ms. Laboucan works at Northern Lakes College and had signing authority on the account.

The account’s purpose was to provide for people who worked at the College to obtain training from the College. Persons working for the College had membership dues deducted for this purpose, which is what funded this account. [ 7 ] Ms. Martin also pled guilty to passing an NSF Cheque at the Winks store in Slave Lake, wherein she cashed a cheque for $1950 knowing the account in question was depleted of funds. [ 8 ] As of the date of sentence, no restitution has been made.

Of note, on the date her plea was entered, the Crown represented Northern Lakes College not to be seeking restitution but did advance a claim for Winks Slave Lake in the amount of $1950. The Offender [ 9 ] Ms. Martin was without a prior criminal record to this incident. [ 10 ] Her education includes an Office Administration Diploma and other courses taken throughout the course of her employment.

She had worked her way up through the ranks at the Northern Lakes College over the 13 years she had been employed there. [ 11 ] On a review of the presentence and Gladue reports, she is the primary caregiver to one child, and has lost her home and employment potential as a result of this offence and the underlying drug and gambling addictions. As of the date of sentence, she has substantial debts, and few prospects for meaningful employment. [ 12 ] Ms. Martin has lost the support of a great deal of her extended family as a result of the offence.

She has started a relationship with a new significant other since entering her guilty pleas. [ 13 ] Ms. Martin attended and completed a 6 week residential treatment program at the Thorpe Recovery Centre in July of 2021. She reports abstaining from drugs and gambling since that time, and the Court accepts this.

Principles of Sentence [ 14 ] In addition to the principles of sentence in 718 of the Criminal Code , which requires the Court to craft a sentence proportionate to the offence and degree of responsibility of the offender, this offence in these circumstances also requires I consider the following additional factors. 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. [ 15 ] In this case, I find (

a) and (

c) relevant to my consideration. This was of significant duration, and involved 131 transaction over that period of time, requiring forging the names of other persons who worked with and trusted the offender each and every time. I also find the number of persons who had invested in the fund (being the workers at the Northern Lakes College) to be a large number of persons who have been deprived of their funds and ability to take training as a result of the actions of the offender. Aggravating Factors

[16] The offence against the Northern Lakes College was a breach of trust by one of their most trusted employees. The offencetook place over a lengthy period of time, and Ms. Martin took steps to conceal her activity. In forging the names of others, she exposedthem to potential liability for her actions. [17] The amount appropriated was substantial, has never been recovered, and the loss is being borne by the employees of theCollege who collectively funded this account for their career advancement. Mitigating Factors [18] Ms. Martin entered guilty pleas and has expressed remorse.

It was not a prompt guilty plea, but it was a guilty plea and she isentitled to some mitigation for it. She was cooperative with the investigation of these matters. Gladue Factors [19] I have had the advantage of a thorough Gladue report. Ms. Martin identifies indigenous ancestry through her grandfather. Shehas had little opportunity to connect to and has no current connection to her Indigenous culture and is herself unsure as to any ResidentialSchools or other impact on her family. Ms.

Martin has been divorced from her Indigenous Culture to date but expresses interest inconnecting to her culture in the future. [20] I have taken judicial notice and considered how the long reaching effects of colonialism have impacted Ms. Martin throughthe personal challenges outlined in her Gladue report and factored those effects into assessing her personal degree of moral culpabilityfor these offences.

Applicable Case Law [21] The Alberta Court of Appeal has repeatedly identified offences of this nature, committed over a period of time for substantialsums of money by employees in a position of trust must prioritize a denunciatory sentence; both for the offender and the public at large.See R v Bracegirdle, 2004 ABCA 252; R v McKinnon, 2005 ABCA 8 and R. v. Fulcher 2007 ABCA 381. The Court in Fulcher went sofar as to note it despite it being commonplace for offenders without prior record to commit these offences, this was in no way adetraction from the need for general deterrence. (Fulcher at para 29).

Crown Position on Sentence [22] The Crown says a sentence of denunciation and deterrence is paramount, and such a sentence must be served in a correctionalfacility. A quantum of two years, consisting of 21 months for the first information and, 3 months consecutive for the second wassuggested. The Crown also asks me to consider, regardless of the lack of formal request, imposing an order pursuant to

section 738 ofthe Criminal Code for restitution for the Northern Lakes College and to impose the $1950 restitution requested by Winks Slave Lake. Ihave also been asked to consider the imposition of an order pursuant to s. 380.2 of the Criminal Code. [23] The Crown cites a number of cases in support of same, including R. v. Bracegirdle, 2004 ABCA 252, R. v. Fulcher, 2007ABCA 381, R. v.

Zenari, 2012 ABCA 279 on the range and type of sentence, and R v Bean, 2020 ABCA 409, R v Thiel 2021 ABPC 286and a number of other authorities on whether or not the Court should impose a restitution order absent a formal request of the aggrievedparty. [24] Bracegirdle, Fulcher and Zanari are all binding on this Court.

They all reinforce the emphasis to be placed on a denunciatorysentence prioritizing both specific and general deterrence to both the offender and the public at large. [25] On the issue of restitution, Bean helpfully outlines a number of the considerations which I should weigh in making such anorder, but most relevant to this case is located at paragraph 26; The second aspect of the reversible error is that the sentencing judge was provided no information with respect to Mr.

Bean’s ability topay and it was obvious that he was going to be in prison for some period of time, he had health problems, and had been seriously injuredin the crash and its aftermath. While ability to pay "does not prevent" a court from making an order under ss 738 or 739 of the CriminalCode, ability to pay remains a relevant consideration as to the terms and timing of such an order. For example, the record is silent onwhat type of employment, if any, Mr.

Bean has had in the past, nor what his future ability to pay is, and whether that ability comes fromemployment or other sources. [26] For this offender, ability to pay, particularly in light of the Crown’s position on sentence, will require careful consideration. Defence Position on Sentence [27] Defence seeks a sentence of two years less a day, served via a Conditional Sentence Order, or in the alternative a sentence oftwo years in a Federal Penetentiary to allow Ms. Martin access to specialized programming available within the Correctional Service ofCanada, and cites R. v. M.F.G. 2019 BCPC 186, R. v.

Datsko 2009 BCPC 106 , 2009 BCPC 0106, R. v. Kasdorf, 2010 ABPC277, R. v. Peterson, 2000 ABQB 163 and R v Pandit, 2023 ABPC 6 in support of same.

[ 28 ] The M.F.G case from B.C. is of little assistance. It is on different circumstances and from a court whose decision is not binding on me. Peterson is from a binding court, but precedes the subsequent guidance given on multiple occasions by the Alberta Court of Appeal. As such, it is of little precedential value to me where it is superseded by later appellate decisions. [ 29 ] The remaining decisions cited by counsel for Ms. Martin are custodial sentences imposed in similar circumstances. [ 30 ] Defence also cited by reference R . v.

McTighe , 2005 ABCA 30 for the proposition a Conditional Sentence Order may be appropriate. I disagree. A reading of paragraphs 26 through 32 of this judgment make it clear the Court in McTighe agrees a sentence demanding primacy of denunciation and deterrence requires a clear message and adopts R. v. McKinnon 2005 ABCA 8 with approval for this proposition. Restitution [ 31 ] At the time of the guilty plea, the Northern Lakes College indicated it would not seek restitution for this matter.

I have heard submissions around this issue, including who actually should have requested same as regards the aggrieved persons at the College.

At this time, no one has submitted a formal request. [ 32 ] Winks in Slave Lake did request restitution in the amount of $1950. [ 33 ] The Crown takes the position I should consider restitution regardless as part of considering the totality of sentence. [ 34 ] Defence notes her client’s reliance on the Crown position at the time of the guilty plea, but advances her client is willing to attempt to make restitution, but is currently financially unable to accommodate this in any meaningful way at the present time. [ 35 ] On these facts and with the guidance in Bean , supra , I find the matter of restitution will have to be resolved after the type of sentence to be imposed on the offender is decided.

Is a Conditional Sentence Order Appropriate? [ 36 ] There are no mandatory minimum sentences for these offences. The range of sentence includes potential sentences of incarceration not in excess of two years. If this Court concludes a sentence not in excess of two years is fit, I must consider whether serving that sentence pursuant to a Conditional Sentence Order would be appropriate. [ 37 ] This Court is well aware of the potential deterrent effect of a Conditional Sentence Order.

Moreover, I have considered that deterrent effect in combination with the requirement outlined by Parliament in the Criminal Code to consider all alternatives to sentence before resorting to incarceration. I acknowledge as fact that a Conditional Sentence Order can and does have a deterrent effect. However, considering the magnitude of these offences, the very high moral culpability of the offender and the guidance of the Court of Appeal, I am of the view this is one of the circumstances where the only appropriate deterrent is a sentence of physical incarceration.

This situation is contemplated by the Supreme Court in R . v. Proulx , 2000 SCC 5 at para 107 : Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer , supra , at p. 36.

The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach , supra , at pp. 136-37… Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 38 ] I find the breach of a position of trust over an extended of time by this offender in these circumstances to be an offence where incarceration will have a real deterrent effect on her and the public at large, combined with the circumstances of the community in which it happened and the effects as articulated in the Victim Impact Statement. [ 39 ] My conclusion is reinforced by the guidance of the Alberta Court of Appeal in R. v.

Fulcher , supra , at paragraph 44 , where the unanimous Court, overturning a Conditional Sentence Order states; In crimes of embezzlement, the sentencing goals of denunciation and deterrence take on a particular importance. If this conditional sentence were left standing, anyone else working in a similar capacity of trust for a similar employer could readily see an obvious blueprint for quick wealth. It shows how to get hundreds of thousands of dollars almost effortlessly with only the potential burden of a conditional sentence of house arrest to fear.

Conclusions [ 40 ] In reaching a sentence proportional to this offence for this offender, this court must start from the guidance offered in Fulcher , supra; ... absent truly exceptional circumstances, the sentencing goals of deterrence and denunciation demand a sentence of imprisonment rather than the imposition of a conditional sentence for crimes of embezzlement or theft by an employee. (emphasis

added) [ 41 ] Reviewing the guidance of the Court of Appeal and the circumstances in this case, I am unable to conclude this offence or this offender to be one of the truly “exceptional” cases contemplated for the imposition of a sentence which does not involve actual custody. [ 42 ] This offender shares many of the features common to persons to perpetuate this type of offence. Her ostracization from family and community, her loss of position and prestige, and her loss of income and assets are not unusual facets of this type of offence or offender when they are engaged in and sanctioned for this type of activity.

They are, in fact, almost the exact list of circumstances found by the Court of Appeal in Zanari, supra (para 8), to not be exceptional; While the sentencing judge correctly stated the principle, she misapplied it. Many of the factors she found to be exceptional are merely the normal consequences of this type of crime.

The consequences of a fraud conviction for a person of previous apparently good character are often the same: loss of reputation; loss of job; shame; financial ruin; loss of house; negative repercussions for the family; letters of surprise but continuing support from friends and family; concerns about who will support the family while the accused is in jail, etc.

These are common features of many of the other reported decisions, and cannot be considered to be exceptional… [ 43 ] This Court has the deepest of sympathy for the toll the underlying addiction and other issues have taken upon this offender and her family. I am not unaware of the further devastation this sentence will wreak upon them. This is the deterrent effect required for the public at large to ensure those in positions of trust will not undertake these actions.

Sentence [ 44 ] For this offence and for this offender, the only sentence of sufficient denunciatory and deterrent effect is a sentence of incarceration. [ 45 ] Reviewing the case law provided by counsel, I conclude the appropriate range after a guilty plea to be a sentence to be 18 months to 2 years in gaol, consideration of an order of restitution pursuant to s. 738 of the Criminal Code where it has been requested, and consideration of an order pursuant to 380.2 of the Criminal Code . [ 46 ] I have balanced the aggravating factors of the amount taken and the context of from where it was taken, the length of the fraud, and the steps taken by Ms.

Martin to continue it with the mitigation of her guilty plea and cooperation with the authorities, and considering and assessing the impact of Gladue factors in the degree of moral culpability of this offender. Without the input of the offender I may have potentially found the actual global sentence to be in the lower end of the range outlined above. However, understanding the offender’s wish to be sentenced to a Federal Penitentiary if actual custody was required and finding that sentence remains within the range, I sentence her as follows; [ 47 ] Specifically, on Count 1 of information 210248696P1 I order Ms.

Martin to be incarcerated for a period of two years in a Federal Penitentiary. [ 48 ] I prohibit, pursuant to s 380.2 CC, Ms. Martin from seeking, obtaining, or continuing any employment or becoming or being a volunteer in any capacity, that involves having authority over the real property, money, or valuable security of another person for a period of 5 years. [ 49 ] On Count 4 of information 210248696P1, I order Ms.

Martin be incarcerated for a period of 180 days concurrent to any other sentence. [ 50 ] I have considered whether or not to make an order pursuant to s. 738 of the Criminal Code regarding the Northern Lakes College. In the absence of their direct input, taking into account the other mitigating factors outlined above, and the fact this offender will be without gainful employment during her incarceration, I decline to make such an order. [ 51 ] On information 210248852P1, I order Ms.

Martin be incarcerated for a period of 10 days, concurrent to any other sentence. [ 52 ] I order, pursuant to s. 738 of the Criminal Code , Ms. Martin to pay restitution in the amount of $1950.00 to the Winks Slave Lake, the complainant in this matter. [ 53 ] Given the sentences I have passed, I waive the imposition of any surcharges. [ 54 ] I wish to thank counsel for their thorough materials and assistance in this matter. Heard on the 31 st day of May, 2023. Dated at the Town of High Prairie, Alberta this 31st day of May, 2023.

S.P. Hinkley A Justice of the Alberta Court of Justice Appearances: Terrance Hudson for the Crown Lisa Trach, Trach Law for the Defendant