R. v. Rudolph, 2021 NUCJ 23

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Rudolph, 2021 NUCJ 23 Date: 20210517 Docket: 22-19-42 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Warren Rudolph ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Wool Counsel (Accused): S. Paddock Location Heard: Gjoa Haven, Nunavut Date Heard: April 13, 2021 Matters: Sentencing for theft pursuant to s. 334 (

a) of the Criminal Code of Canada, RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Warren Rudolph has pleaded guilty to a charge of theft over $5000.00. He is before the court to be sentenced. II. FACTS [ 2 ] In 2018 the offender was working for Canadian North in Gjoa Haven. His position permitted him to authorize refunds to passengers in amounts up to $99 per refund, with a daily limit of $1980.00. He had a specific “refund code” assigned to him for this purpose. [ 3 ] Early in 2019 management at Canadian North noticed that money had gone missing. There were suspicious refunds of $99 each that had been made to the same bank card.

Email inquiries were made of employees regarding the missing money however, there was no response. The refund system in Gjoa Haven was shut down. [ 4 ] The offender did ultimately speak with his manager and admit to having stolen the money. He was fired from his job, which he had held for just over four years. [ 5 ] The investigation revealed that between November 15, 2018 and January 2, 2019, the offender had fraudulently authorized hundreds of transactions, totalling $56,124.30. III. THE OFFENDER [ 6 ] The offender is originally from Nova Scotia, although he has spent most of his life in Gjoa Haven.

He is 40 years old. His parents separated when he was an infant and he grew up without knowing his biological father. His father died in Gjoa Haven in the early 2000s. He was buried in Nova Scotia and it was at the funeral that the offender met Rosie, his father’s partner. She is from Gjoa Haven. Shortly after they met Rosie invited him to come to Gjoa Haven, which he did in 2001. He was twenty years old and made Gjoa Haven his home, having been there ever since. He remains close to Rosie. He is married to a woman from Gjoa Haven and they have three children together, twins age 17 and a daughter 14.

The family has a cabin and spend time there mostly in the spring and summer. Clearly he has made Gjoa Haven his home and is settled there. His leisure time activities tend to be family oriented. [ 7 ] The offender quit drinking in 2016. He used to play hockey; however, he suffered a back injury, and I am advised that it was around that time that he started playing poker online. It became an addiction and was the underlying cause of the offence.

He has not received treatment for his gambling addiction nor does he participate in a support group. [ 8 ] Despite the offence, the offender was contacted within a few weeks of having been fired and was offered employment as a heavy equipment operator and mechanic’s helper. His new employer is aware of the circumstances that led to the offender being charged. The offender described his new employment was “even better” than his old job. [ 9 ] Since the offence the family has taken steps to restrict the offender’s access to money.

His paycheque of approximately $2600 every 2 weeks is deposited directly into an account at the local Coop store. Approximately $1500 of that is used for groceries. The offender is able to access some of it for personal expenses. The family has housing provided and his wife pays for bills associated with the house. The offender proposes paying back the money he stole in instalments of $500 per paycheque, over a five-year period.

IV. POSITIONS OF THE PARTIES [ 10 ] The Crown and Defence have put forward a joint position on sentence. They submit that a Conditional Sentence Order of two years less a day is an appropriate sentence. They also ask the court to issue a restitution order for the full amount of $56,124.30. V. SENTENCING PRINCIPLES [ 11 ] The Crown elected to proceed by way of

summary conviction in these proceedings. Accordingly, the maximum penalty that can be imposed is a fine of $5000 or a term of imprisonment of not more than two years less a day, or both. [1] There is no minimum punishment. [ 12 ]

Section s. 718 of the Criminal Code sets out the objectives of sentencing as: the denunciation of unlawful conduct; the deterrence of the offender and others; the separation of offenders from society, if necessary; the rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in an offender. [ 13 ] It is a fundamental principle that the sentence must be proportionate to the gravity of the offence and the moral culpability of the offender. [ 14 ] The Criminal Code also sets out a number of factors which, if present, operate as aggravating factors on sentence.

For the purposes of this matter, it is aggravating that the offender, as an employee with access to the funds of his employer, breached that trust by stealing from the employer. [ 15 ] There are no reported decisions from this jurisdiction that address the sentencing of those who steal from employers. No cases have been provided by counsel, however counsel have acknowledged that the jurisprudence supports the proposition that, absent exceptional circumstances, a period of incarceration is called for. [ 16 ] This proposition is confirmed by appellate authority.

In R v Stirling , 2010 ABCA 338 , the court overturned a Conditional Sentence Order of two years less a day for a theft of $146,069.98 by an Association’s bookkeeper. The sentence imposed was one year custody. The court emphasized the high moral culpability in such offences and the need for deterrence and denunciation. [ 17 ] In R v Perez , 2012 ABCA 393 , the court again overturned a Conditional Sentence Order of two years less a day and imposed a sentence of one year custody where jewelry worth $116,000, of which $49,000 was not recovered, was stolen from an employer.

The court reiterated the jurisprudence which held that a Conditional Sentence Order would be appropriate only in exceptional circumstances (at para 12). The court found that a gambling addiction was not a mitigating factor (at para 19). [ 18 ] Counsel have referred to two unreported decisions of the Nunavut Court of Justice in which non-custodial sentences were granted for offences of theft in the employment context. I understand both of these decisions to have been joint submissions on sentence. [ 19 ] In R v Peckman (unreported) the offender was the manager of a local housing authority.

He pleaded guilty to fraudulently using credit cards in an amount of $26,966.24. [ 20 ] Counsel submitted a joint position on sentence of three years’ probation. The judge imposed a sentence of one day in jail and three years’ probation. The offender had made substantial restitution at the time of the sentencing hearing and a restitution order was issued for the balance. [ 21 ] In R v Zettler (unreported) the offender was the Senior Administrative Officer of Baker Lake. Over a period of seven years he stole $150,000 from the Hamlet by skimming money from bingo revenues.

Full restitution had been made at the time of sentencing. The

sentence imposed was a Conditional Sentence Order of two years less a day, plus probation. [ 22 ] I also have a joint submission on sentence. The law is clear that the court must accede to a joint submission unless the sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 23 ] During submissions Crown counsel explained that he was motivated to agree to a non-custodial sentence because the offender is working and is in a position to make restitution.

While it is clear the offender obtained work quickly after being terminated for the theft, there was no information to confirm that he would lose his employment permanently if he were sentenced to a period of incarceration. [ 24 ] The court understands the importance of restitution in these types of cases. I am also of the view that restitution should not be the driving factor in determining an appropriate sentence.

A wealthy offender who embezzles from an employer simply to accumulate greater wealth will be in a good position to make restitution as opposed to an impoverished offender who is driven to commit the offence due to poverty, mental illness, or other extenuating circumstances. In my view, there is the potential for injustice if the ability to make restitution is the driving factor in determining whether a sentence is custodial or non-custodial. [ 25 ] There are a number of aggravating factors of this offence. First, the amount stolen is quite high.

Although the offence occurred over a relatively short period of time (one and a half months), there were a large number of transactions. Indeed, based on the amount stolen and the limit on each transaction, there would have been approximately 567 transactions. This shows some element of forethought. [ 26 ] The nature of the theft also shows also shows a lack of sophistication. Given the large number of transactions over a short period of time, detection was assured. [ 27 ] In mitigation, there has been a guilty plea and I accept that the offender is remorseful. VI.

COVID-19 [ 28 ] It is necessary to consider the available sentencing options in the context of the current COVID-19 pandemic. [ 29 ] There is inconsistency in the Nunavut jurisprudence as to whether the COVID-19 pandemic is a relevant factor on sentencing. [ 30 ] In R v Campbell , 2020 NUCJ 28 , Charlesworth J. found that, depending on the public health and geographic realities, time in custody during a pandemic may be harsher than time in custody without a pandemic. Thus, the pandemic may be relevant on sentence and may operate so as to reduce the sentence that might otherwise be imposed.

The court found that there was no authority to increase the credit for remand time beyond that provided for in the Criminal Code but found that it may be appropriate to reduce the sentence (at para 32). In my view, Charlesworth J did not endorse an automatic reduction in sentence because of COVID-19. She stated, “Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual” (at para 23).

She had before her evidence of the harsher nature of the custodial time the offender had served. [ 31 ] R v Campbell was followed by R v Pangon , 2020 NUCJ 30 . In Pangon , Sharkey CJ reiterated the finding in Campbell that there was no authority to grant credit for remand time beyond that provided for in s. 719 of the Criminal Code (at para 6). The court in Pangon rejected the approach of reducing a sentence by a specified amount to account for COVID-19 conditions in the jails. However, the court did accept that the COVID-19 pandemic may be a relevant consideration in sentencing.

The court indicated that COVID-19 may operate so as to reduce a sentence, stating that in those cases where the remand time is close to what the sentence would be absent COVID-19, it may be appropriate to grant a time served sentence.

[ 32 ] The court also acknowledged that there may be circumstances where the fact that the offence occurred in the context of a pandemic may be an aggravating factor on sentence, as there may be evidence that the offender took advantage of a victim rendered more vulnerable by the pandemic. In conclusion, the court stated, “COVID-19 should be taken into account when arriving at a fit sentence.

The pandemic should not, however, operate as an automatic reduction of sentence, or allow a specific reduction to an otherwise fit and proper sentence” (at para 173). [ 33 ] The most recent case on the issue is R v Kolola , 2020 NUCJ 38 . For the purposes of this analysis it is beneficial to set out the full text of Bychok J.’s reasons in Kolola on this issue: A. The current pandemic is not an appropriate consideration in sentencing [43] Defence Counsel has asked this Court to consider the current pandemic as “an important part of the sentencing equation”. Mr.

Kolola will, she said, experience custody “more harshly than it would have been had he been sentenced in a pre-pandemic world”. She urged the Court to find that the “collateral consequences” of a southern penitentiary term would be harder on an Inuk than a southerner. In doing so, she cited the Ontario trial level case R v Hearns and the recent Nunavut case of R v Pangon , a decision of Sharkey CJ. With all due respect to the Chief Justice, I do not agree. [44] I understand the impetus felt by well-intentioned judges to try to account for the potential and real effects of the pandemic on prisoners.

Parliament has entrusted sentencing to judges, and judges understand that the sentences they impose may profoundly affect the lives of the offenders they sentence. The temptation is great, then, for judges to try to respond to the pandemic in the sentencing process. However, in doing so, judges overstep their responsibility in this area, which is within the sole purview of Parliament. [45] Canada’s criminal law is codified, and the purpose, objectives, and principles of sentencing have been set by Parliament.

Parliament bears the responsibility to alter the law pertaining to pandemic era sentencing if it deems it advisable and necessary. Nine months into the pandemic, Parliament has chosen not to do so. [46] Nature abhors a vacuum, and that is no less true in human affairs. Parliament’s inaction on the pandemic sentencing issue has led to judges stepping into the void. The result in Nunavut highlights the dangers inherent in unelected judges making policy decisions best left to Parliamentary debate, study, and legislation. Three Nunavut judges have now published three different opinions on this subject.

This situation does nothing to provide certainty and consistency to the law. [47] In June, my colleague Charlesworth J deducted 60 days from a 15-month jail term as a special COVID-19 remand credit in R v Campbell . She stated her reason for doing so as follows: As I noted earlier, I have given Mr. Campbell the maximum allowable amount of credit for his pre-sentence custody: 1.5 days for every 1 day per section 719(3.1) of the Criminal Code . In these circumstances, I also feel that it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration.

The clear implication arising from Campbell was that offenders in Nunavut going forward would qualify for an automatic COVID- related remand credit sentence reduction. [48] However, Chief Justice Sharkey expressly disagreed in Pangon : Accordingly, in my view—absent a challenge to the constitutionality of the provision itself—judges have no power or jurisdiction to impose any remand credit beyond that set out in section 719(3.1) at the rate of 1.5 to 1. [49] The Chief Justice then went on to call for a “more robust approach to sentencing”, expressly adopting the reasoning expressed in R v Hearns :

In Hearns , Pomerance J addressed the balance which needs to be struck between the potential harmful health impact of the pandemic upon detained persons and the role of the court in maintaining public confidence in the administration of justice: That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency, and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions.

There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community for a proportionate sentence.

Where, however, a period of time served can address sentencing principles, even imperfectly , our sense of humanity tells us that release from prison is a fit and appropriate response. (at para 24, emphasis in original) [50] As I understand this reasoning, Sharkey CJ suggests that Nunavut’s judges should be prepared to accept, and to impose, imperfect sentences out of a sense of community, decency, and humanity. [51] Sentencing is a serious art, not a science. Judges are human and make mistakes like anyone else. I do not believe that the public holds judges to a standard of perfection.

However, I believe the public expects judges to struggle in every case to impose the just and right sentence according to the law they are sworn to uphold. I dissent from the idea that judges ought to be prepared to depart from that fundamental principle.

There is no lawful authority which permits sentencing judges to lessen appropriate and principled custodial sentences because of the current pandemic. [ 34 ] For the reasons that follow I reject the propositions set out by Bychok J., and I endorse the approach taken by Sharkey CJ and Charlesworth J., which, in my view, are not inconsistent with each other in that they agree the relevance of the COVID-19 pandemic will depend upon the circumstances. [ 35 ] First, I disagree with the contention in para 46 of Kolola that judges have no jurisdiction to address concerns related to the pandemic in the context of the sentencing process and that it is exclusively within the purview of Parliament. [ 36 ] While the Criminal Code codifies many aspects of the sentencing process, within that legislated process judges are still granted considerable discretion. [ 37 ] Indeed, s. 718.3(1) specifically states: 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits an offence. [ 38 ] Bychok J. is of the view that unless a factor is specifically enumerated in the Criminal Code as a factor which must be considered in determining an appropriate sentence, then a sentencing judge has no jurisdiction to consider it. This is incorrect. [ 39 ] The legislative provisions relating to sentencing have developed over the years.

Often, the legislative provisions have codified what was already the law as set out in the jurisprudence. Such examples are found in s. 718.2. One such example is s. 718.2(a)(ii), which states that it is an aggravating factor on sentence if the offence involved the abuse of a spouse or intimate partner. This provision found its way into the Criminal Code in 1996.

However, the fact that an assault occurred in a domestic context was considered an aggravating factor on sentence prior to 1996 ( see: R v Brown , 1992 ABCA 132 , R v Chimko , 1993 ABCA 194 ). [ 40 ] There continue to be sentencing factors that are routinely considered by judges that are not set out in the Criminal Code . Again, by way of example, the Criminal Code does not state that a prior criminal record is a relevant factor on determining sentence.

It also does not state that a prior criminal record for similar offences increases the aggravating effect of a criminal record, nor does it state that a prior criminal record of similar offences on the same victim has an even greater aggravating effect. Yet there is no doubt that such is the case. [ 41 ] Another such example of a factor not enumerated in the Criminal Code yet considered routinely by sentencing judges in determining a fit sentence is the prevalence of a particular offence within the jurisdiction ( see: R v Lyta , 2013 NUCA 10 at para 20 ; R v Itturiligaq , 2020 NUCA 6 at paras 58-59 ).

[ 42 ] More akin to the COVID situation, in Nunavut, the fact that an offender will be sent south to a federal penitentiary to serve his sentence is often considered by the court in those cases where a territorial sentence might still be a fit sentence. If one were to adopt the proposition put forward by Bychok J., this approach taken routinely by sentencing judges would be an error. [ 43 ] In determining a fit sentence, judges are required to consider the circumstance of the offence, the circumstances of the offender, and the societal context.

Judges can and should consider the local circumstances within which an offender is being sentenced ( R v W(LF) , 2000 SCC 6 ). The fact that we are in the midst of a global pandemic is part of the societal context within which offenders are now being sentenced. We should no less ignore it than we should ignore other indicators of the health of the community. [ 44 ] Sentencing must also respond to the circumstances of the particular offender.

In some circumstances, such as an offender with heightened risk factors due to poor health, the fact of the global pandemic may also be a circumstance of the particular offender which must be considered in the sentencing process. [ 45 ] The fact that a relevant sentencing factor is one which might be seen by some to work to the benefit of the offender, by mitigating what might otherwise be a fit sentence, as opposed to being a sentencing factor that might be seen as working to the detriment of the offender, by increasing the length of what constitutes a fit sentence, does not make it any less relevant on sentencing. [ 46 ] Sentencing judges are entitled to consider the collateral consequences of a sentence.

The Supreme Court of Canada in R v Pham , 2013 SCC 15 stated: …the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. (at para 11) [ 47 ] In R v Suter , 2018 SCC 34 , the Court stated: ...a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts an offender. (at para 47) [ 48 ] In my view, the COVID-19 pandemic may, depending on the circumstances, be a collateral consequence of a jail sentence and may be considered by sentencing judges.

The relevance of it may vary from case to case and it should not operate so as to result in an unfit sentence. [ 49 ] This proposition is supported by appellate authority. While our Court of Appeal has not yet considered the issue, other appellate courts have ( see R v Morgan , 2020 ONCA 279 ; R v Reddick , 2020 ONCA 786 ; R v Dawson ; R v Ross , 2021 NSCA 29 at paras 101-106 ; R v McKibbin , 2020 BCCA 337 ).

While their decisions are not binding, I do find them persuasive. [ 50 ] I appreciate that a “collateral consequence” of sentencing is normally an individualized factor that turns on the particular circumstances of the offender.

Such examples include risk of deportation upon conviction ( Pham ), the offender having suffered vigilante justice ( Suter ) and, with respect to COVID-19, the offender suffering from compromised health that risks his vulnerability to the virus ( McKibbon ). [ 51 ] As with the rest of society, courts are not often required to respond to pandemics and as such, it may be that the generally understood concept of “collateral consequences” of sentencing will evolve. Courts are required to consider the public interest when determining sentences.

It maybe that in some instances, consideration of the broad public interest requires a consideration of the pandemic.

[ 52 ] I agree with Bychok J. to the extent that he suggests that inconsistency on such issues amongst trial level judges is undesirable because it does not provide the necessary consistency desired by everyone, particularly those who appear before the courts. The administration of justice benefits when both parties can have some certainty of approach, if not outcome, from trial level judges, particularly in a jurisdiction such as Nunavut with so few judges. [ 53 ] The offender lives in a remote northern community that does not have and has not had any COVID-19 cases.

If he is sentenced to jail, he will have to travel over 1000 km to the nearest jail, which is in Yellowknife, NWT. It is well known that Yellowknife is currently having a COVID-19 outbreak. If he is brought to Iqaluit, he will again be entering a community with a COVID-19 outbreak. Further, there is COVID-19 at the Baffin Correctional Centre. If this were a case where jail was the only reasonable option, the current COVID- 19 situation in Yellowknife and Iqaluit would not be determinative. However, that is not the case.

Since a non-custodial disposition is a sentencing option that I must consider given counsel’s position, it is relevant that imposing a period of incarceration will undoubtedly increase the COVID-19 risk not only for this offender but also for those required to escort him. Given the current situation in Yellowknife and Iqaluit, this risk is not theoretical. [ 54 ] I am presented with a joint submission for a non-custodial sentence. For a conditional sentence order to be imposed there are conditions which must be satisfied: 1. The sentence must be a sentence of imprisonment of less than 2 years; 2.

The court must be satisfied that service of the sentence in the community would not endanger the safety of the community; and 3. The sentence would be consistent with the fundamental purpose and principles of sentencing. In the matter before me, the first two conditions are satisfied. The issue is whether a conditional sentence order satisfies the principle of denunciation, as set out in the jurisprudence.

It is difficult to suggest that the joint submission meets the standard necessary to reject it when the court has been presented with similar cases from this jurisdiction where the joint submissions were accepted. Indeed, one of the cases is more serious given that it occurred over a much longer period of time and involved a larger sum of money. I have not been advised of any extenuating circumstances in either of those cases that distinguish it from the matter before me. To reject the joint submission in this matter would violate the parity principle of sentencing. VII.

CONCLUSION [ 55 ] There will be a conditional sentence order (CSO) of two years less a day. The terms of the CSO are: a. Keep the peace and be of good behaviour; b. Appear before the court when required to do so; c. Report to a supervisor within five days of today and thereafter as directed; d. Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or your supervisor; e.

Notify the court or your supervisor in advance of any change of name or address and promptly notify the court or your supervisor of any change of employment of occupation; f. You must abstain from the possession or consumption of intoxicating substances, including alcohol and cannabis; g. You must abstain from gambling of any type; h. For the first 12 months of the CSO you must remain in your residence, house #386B in Gjoa Haven, or within 10 metres of your residence, except for Sundays between 1 and 4 pm; i.

For the second 12 months of the CSO you must be inside your residence, house #386B, between the hours of 7 pm and 8 am; j. The following exemptions apply to the period of house arrest and to the period of curfew:

i. You are permitted outside of your residence to attend work. You must provide your supervisor with a copy of your work schedule; ii. You are permitted to attend counselling as directed; iii. You are permitted to attend medical appointments or leave for medical emergencies for you or your immediate family; iv. You are permitted to be at the family cabin or within 10 meters of the family cabin. You must advise the RCMP before you leave for the cabin and upon returning from the cabin; v.

You must present yourself at the door of your residence or cabin for a house arrest/curfew check by the RCMP or your supervisor. [ 56 ] There will be a restitution order in the amount of $56,124.30, pursuant to s. 738 of the Criminal Code . The amount owing shall be payable as follows: a. A lump sum payment within 7 days in the amount of $5000; b. Payments of $500 per pay period, until the full amount owing is paid. [ 57 ] I understand the loss is payable partially to an insurer and partially to the employer. Counsel shall advise the Clerk payable to each.

Dated at the City of Iqaluit this 17th day of May, 2021 ___________________ Justice S. Cooper Nunavut Court of Justice