R. v. Lee (Yin) Date:, 2018 BCPC 46

Citation: R. v. Lee (Yin) Date: 20180209 2018 BCPC 46 File No: 221294-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. WAI YIN also known as DAISY LEE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: N. Farinelli Counsel for the Defendant: F.M. Rowan Place of Hearing: Surrey , B.C. Date of Hearing: January 17, 2018 Date of Sentence: February 9, 2018

A Corrigendum was released by the court on March 5, 2018. The corrections have been made to the text and the Corrigendum isappended to this document. [1] Ms. Lee appeared before me on January 17, 2018 for the purposes of sentencing to Count 1 wherein from the 1st day of February, 2012 to the 3rd day of June, 2015, inclusive, at or near Surrey, in the Province of British Columbia, did by deceit, falsehood orother fraudulent means defraud Telus Communications Inc., of money, of a value in excess of five thousand dollars ($5,000.00), contraryto Section 380(1)(

a) of the Criminal Code of Canada. [2] Briefly, the agreed upon facts are such that in 2012, Telus acquired Wolf Medical Systems which was the employer of Ms. Leeand thereafter Ms. Lee became a Director at Telus, supervising approximately 10 - 15 employees; however, in June, 2015, as a result ofcorporate re-structuring, Ms. Lee received severance in lieu of notice. It was only after Ms. Lee left her employment with Telus that hersuccessor noticed accounting and financial irregularities in expenses that had been submitted and or approved by Ms. Lee during hertenure of employment.

After an internal investigation, the matter was forwarded to the RCMP, where after Production Orders andfurther investigation, including a Production Order for third party records such as Amazon, and a search warrant to her residence; itconcluded that Ms. Lee was the controlling mind and actively engaging in an on-going fraudulent scheme against Telus. That fraudulentscheme undertaken by Ms.

Lee included that she utilized the corporate credit cards of her employees to purchase online from Amazonand post those expenses as being office expenses when they were in fact personal items which totalled approximately $37,000.00 fromAmazon documentation and further, that she had two of her subordinates submit business expenses to Telus under their personal names,which in turn Ms. Lee approved and then in turn upon payment by Telus to the two subordinates, they would write a personal cheque toMs. Lee for the amount. These transactions were approximately $67,000.00. [3] This is a joint submission.

The leading authority on joint submissions is that of Regina v Anthony-Cook 2016 SCC 43, 2016 SCJ No. 43, (hereinafter referred to as Anthony-Cook, supra), wherein the Supreme Court of Canada noted that thepublic interest test is the appropriate test to consider whether to accept or deviate from a joint submission and concluded that a trial judgeought not to deviate from a joint submission unless it would bring the administration of justice into disrepute or was egregious to thepublic interest and in considering such, one cannot depart from a joint submission lightly and must be done only in the most unusual ofcircumstances taking into consideration the high threshold to do so.

I was not completely satisfied with the terms of the joint submissionproposed and therefore in accordance with Anthony-Cook, (supra), I afforded both counsel the opportunity to hear my concerns whichfocused on the terms of the proposed Probation Order and each counsel made submissions and consulted with one another jointly andagreed to my proposed changes, which I will set out below. [4] From the outset, I will note that the joint submission is that of a 12-month Conditional Sentence Order to be followed by a 12-month Probation Order, and a Forfeiture Order.

Noting the timing of this offence, this is eligible for a Conditional Sentence Order andhad it occurred shortly thereafter, this would not have been eligible for such. [5] There is consensus as to the mitigating factors, those being that this resulted in an early guilty plea, that both counselacknowledge that Ms. Lee cooperated with the police in their investigation, that restitution has been paid back to Telus by Ms. Lee in theamount of $100,000.00, that she is remorseful, that she has and is taking responsibility for her actions, that she is currently employed andthat she has a six-month-old child.

In support of Ms. Lee, defence counsel have submitted a number of character reference letters from members of hercommunity stating that she is a “virtuous person”, a “very honest” person, which is perplexing considering the length and quantum ofwhat she has pled guilty to and there is a letter noting that “there is no explanation for what she did” and that it “makes no sense”. Iconcur with such and will note that she is being accountable with this guilty plea and sentencing. She appears to have support from herfamily and peers in which I would encourage both her supports to maintain contact with Ms.

Lee and in turn, I would encourage Ms. Leeto rely upon her supports. Ms. Lee has no criminal record. The aggravating factors before me is that the agreed upon duration of theoffence is significant and that this was done over a prolonged period of time and that it required pre meditation, that she was in a positionof trust, that the amount was significant, and that this commercial criminal activity at the end of the day impacts every consumer orcustomer utilizing that service from that corporation. [6] Ms.

Lee is currently 35 years of age, she has diplomas from BCIT, a Masters Certificate, a Project Management Certificationand an IT Certificate. In the past she has been employed by TR Systems, Wolf Medical Systems and was with Telus from 2012 - 2015. Post Telus she was employed on a self-employed basis in the health and beauty industry and she secured employment with the BCLiquor Distribution branch, however, her employment was terminated when the charges were made known or discovered.

She iscurrently employed with CFU Holding Corporation as a Director of Global Operations and her current employer I have been advised, isfully aware of the circumstances and matter before me today for sentencing and my decision. [7] Defence counsel respectfully submits that Ms. Lee has and will pay a price for her criminal activity as this will result in acriminal record and that she will not be permitted to enter into the United States without a waiver.

Counsel submit that the police andTelus are, in their words, “supportive” of this joint submission; however, I will note that neither at the end of the day, can nor shouldbind this court in any decision made. [8] As noted, I was not prepared to accept the joint submission after careful consideration and placed both counsel on notice,particularly drawing to their attention that I am bound to consider the principles of sentencing and that the terms of the ConditionalSentence Order and the Probation Order did not adequately address the harms done to the community as a whole.

As articulated at para.25 by the Supreme Court of Canada in the Anthony-Cook, (supra), decision: It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange fora plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, aswell as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges withoutany difficulty.

Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges arenot obliged to go along with them.

[ 9 ] In considering any deviation from a joint submission, the court must consider the public interest test, meaning to review, consider and ensure that such submission does not bring the administration of justice into disrepute or is not contrary to the public interest. This test allows for certainty with joint submission proposals to the court and provides surety to the accused.

I was not satisfied that this joint submission when initially presented addressed the public interest meaning that it is “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system” ( Regina v Drunken, 2006 NLCA 67 , at para. 29 ) or more succinctly put, that the public would lose confidence in the judicial system ( Regina v B.O.2, 2010 NLCA 19 (Can LII , para. 56).

I am satisfied that both counsel have provided to me the relevant facts and information and I will acknowledge that the proposed joint submission has been carefully crafted, but for the impact upon the public and this community as a whole. In posing such to counsel, it was not for them to turn their mind that this should be a custodial sentence.

In that respect, I am satisfied that the Conditional Sentence Order and Probation Order is appropriate, however, where I focused both counsel on my concern was that it did not address the harms done to the community as a whole and how that rehabilitation and reparation can be amended to address the values of this community. Ms. Lee was in a position of trust and defrauded Telus some $100,000.00 over a long period of time and while in a position of trust.

While the funds have been repaid, this was premeditated over a long period of time and defrauding any corporation at the end of the day such fraudulent activity is passed along to the consumers in this community as a cost. My concern was also articulated by authors Ruby, Chan and Hasan in Sentencing, (8 th ed., 2012) at para. 73 which stated: Though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred. [ 10 ] This is where my concerns lie in the proposed sentence.

As part of the joint submission, it was agreed, amongst other terms, that Ms. Lee complete 150 hours of community work service hours to the satisfaction of her Probation Officer. Ms. Lee, has and continues to be actively involved in the British Columbia badminton community not only as a participant, but as a mentor and volunteer. She is to be commended for such, however, my mind turned to that these hours in which she participates and volunteers, can sometimes be 19 - 30 hours per month as part of her day to day life.

I expressed concern that this historical activity to which she participates is not to be negated, however, it should not be permitted as part of the community work service hours. The purpose of community work service hours in any sentencing is to give back in a positive manner contribution to the community in the form of rehabilitation but to acknowledge the harm suffered by the community as a whole and to volunteer making a positive contribution. I expressed that concern to both counsel. In my decision of Regina v Singh 2016 BCPC 407 (Can LII) , at sentencing after entering a guilty plea, Mr.

Singh produced a number of letters indicating that he volunteers a number of hours at his local temple. In my decision, I, too, focused on the reparations to the community in his illegal immigration activity and the sanctity of our Canadian values and our border and ordered that none of his community work service hours was to be undertaken within his temple for the reason that it addressed the harms as a whole to the community and addressed reparations. That decision was appealed and at the appeal level, in Regina v Singh 2017 BCSC 1277 , Mr. Justice Verhoeven dismissed the appeal and in commenting on having Mr.

Singh volunteer outside of his normal volunteer activities stated at page 15, para. 86: “…it would not be a meaningful sanction to impose a requirement that Mr. Singh provide community work service by continuing to do what he was already doing, and would do in any event.” Mr. Justice Verhoeven continued at paras. 87 and 88: “Mr. Singh cannot be permitted to specify the manner in which he would like to fulfil the obligation imposed on him, if that is the effect of the submission. I am not persuaded that the sentencing judge erred in principle by very minimally restricting the manner of community work service.

The restriction permits Mr. Singh broad latitude in fulfilling the condition, in that it only prevents him from fulfilling the condition at a temple. I am not persuaded that the condition was intended or had the effect of being discriminatory.” I expressed this very concern to both counsel with the initially proposed joint submission and allowed both counsel to provide submissions, caucus further, and to which they both returned not finding my thought process regarding the community work service hours to be unduly harsh and concurred with my thoughts.

I concur that this is a commercial fraud and while it is difficult to ascertain the impact that any commercial fraud has on the public as a whole and the community, so, too, the reality is that at the end of the day, regardless of the size of the corporate entity, costs are invariably passed along to the consumer, being members of the community and that can result in harm.

How to address it is not easy, however I expressed this concern to counsel with my thoughts and I thank them that after their submissions and their own caucusing upon hearing my thoughts, they agreed with my proposal, which is that a significant amount of Ms. Lee’s hours in the form of community work service should not be permitted to take the form of her badminton volunteering hours. [ 11 ]

Section 718 of the Criminal Code of Canada addresses the fundamental principles of sentencing which include denunciation, deterrence and rehabilitation. I am satisfied that the joint submission as now agreed upon addresses all such considerations. As noted, when the joint submission was initially proposed, I was not content that Sections 718

e) and

f) were adequately addressed, particularly in terms of the harm done to the community as a whole with this commercial fraud and to acknowledge the harm that this has caused to the community as a whole. It is unique to apply

Section 718 to a commercial crime application when considering Sections 718

e) and f), however, the fact is that at the end of the day, wrongfully removing and allocating funds from any corporate entity has a cost that is passed along to the consumer, meaning the community as a whole and while re-paying the monies is a significant step, the community must know that you cannot simply write a cheque to right a wrong. Reparations must be made. I am now satisfied that the re-worked joint submission satisfies those concerns and I wish to specifically thank both counsel for the succinct submissions and review. [ 12 ] Accordingly, I will order the following in the form of the joint submission: There will be a 12-month Conditional Sentence Order:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when directed to do so;

c) You are to report in person to your Conditional Sentence Officer in Surrey, British Columbia no later than Wednesday, February 14, 2018 at 2pm and thereafter no less than one time per month in the manner as to directed by your Probation Officer;

d) At your first reporting you are to provide your Conditional Sentence Officer with your residential address and telephone number and do not change that without the prior written consent of your Conditional Sentence Officer;

e) You must remain in the Province of British Columbia, save and except unless you have on your person at all times when outside your residence the prior written consent of your Conditional Sentence Officer to leave the Province for the purpose of employment-related travel to and from: i. 10705 107 Street NW, Edmonton, Alberta; ii. 152 Cranarch Heights, Calgary, Alberta; or iii. 2525 77 Street SW, Calgary, Alberta;

f) You must advise your Conditional Sentence Officer in writing within 7 business days if there is a change in your employer or employment;

g) For the first three (3) months of this Order you must remain within the property of your residence, under house arrest, 24 hours per day. You must present yourself forthwith to the front door or your residence or answer the telephone should a peace officer, curfew compliance agency, or conditional sentence supervisor attend or telephone your residence to determine compliance with these terms and conditions;

h) For the first three (3) months of this Order, you may be outside your place of residence only with the prior written consent of your Conditional Sentence Supervisor, which may be given for the actual course of lawful employment or employment-related travel, which must be pre-approved of in writing by your Conditional Sentence Supervisor and such written consent must be carried on you; or in the event of a medical emergency pertaining to yourself, your spouse or your child, however, you must provide to your Conditional Sentence Supervisor written and independent confirmation of such medical emergency within 72 hours of such; and for childcare purposes including recreational activities for your child not to exceed four hours per day;

i) For the last nine (9) months of this Order, you must be within the property of your residence, subject to a curfew not to be outside of your place of residence from 10pm - 6am seven days per week. You must present yourself to the front door of your residence forthwith or answer the telephone when any peace officer, conditional sentence officer or curfew compliance agency attend or telephone your residence to determine compliance with the curfew condition of this Order;

j) During the last nine (9) months of this Order, you may be outside your place of residence while in the course of employment or employment-related travel, which travel must be pre-approved of in writing your Conditional Sentence Supervisor or in the event of a medical emergency pertaining to either yourself, your spouse, or your child. You must present to your Conditional Sentence supervisor medical documentation within 72 hours of such medical emergency to support such absence;

k) At your first reporting to your Conditional Sentence supervisor, you must provide him or her the names of all permanent and temporary occupants of your residence, including any immediate family members or child caregivers who you expect to be in your residence during the time periods covered of house arrest during this Conditional Sentence Order and you must advise your Conditional Sentence supervisor forthwith in writing of any change;

l) You are not permitted any visitors to your residence during this Conditional Sentence Order, save and except immediate family members and child caregivers, except with the prior written consent of your Conditional Sentence supervisor. A copy of the written consent must be kept in your residence at all times and you must produce such upon demand of you by a peace officer, Conditional Sentence supervisor and curfew compliance agency;

m) You are required to report any change in your employer within 72 business hours in writing of any such change to your Conditional Sentence supervisor;

n) You are required to carry a copy of this Order on you and any written permission from your Conditional Sentence supervisor on you at all times when outside of your place of residence. If a peace officer stops you for any reason, you must immediately produce to the peace officer a copy of this Order and any written consents as furnished by your Conditional Sentence supervisor;

o) You are permitted outside of your place of residence outside of the named exceptions, however, it shall only be for exceptional and compelling reasons and such consent must be granted to you by your Conditional Sentence supervisor in writing and such written consent must be case, date and time specific and such written consent must be carried on you; and

p) Within the entire duration of this Conditional Sentence Order, you must complete to the satisfaction of your Conditional Sentence supervisor 40 hours of community work service hours, of which none may involve your badminton volunteering already undertaken in the community;

q) You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable instruments, drivers’ licences, birth certificates, social insurance cards, mail, invoices, or bills other than ones in your own name or in the name of your spouse or child;

r) You must not possess any account information, credit or debit card data or any electronic storage medium, including any credit or identification card with a data strip or security chip, that contains personal information, with the exception of your own account information or data or that of your spouse or child;

s) Before seeking, obtaining, or continuing any employment, or becoming a volunteer in any capacity, that involves having authority over real property, money or valuable security of another person or corporation, you must inform the employer or the organization forthwith in writing about this conviction and provide a copy to your Conditional Sentence Supervisor; and

t) You must attend, participate in and successfully complete any intake, assessment, counselling or programme as directed by your Conditional Sentence Supervisor.

[ 13 ] To be followed by a 12-month Probation Order with the following terms and conditions:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when directed to do so;

c) To report in person to your Probation Officer within 72 hours of such Order and report in person and thereafter report no less than one time per month in person;

d) At your first reporting you are to provide to your Probation Officer your residential address and telephone number and do not change that without the prior written consent of your Probation Officer;

e) At your first reporting you are to provide to your Probation Officer your employer name, address and contact information and if such changes, you are to advise your Probation Officer in writing within 72 hours of any such change;

f) Within the first ten months of this Probation Order you are required to complete to the satisfaction of your Probation Officer 110 hours of community work service hours, of which only 30 may be attributable to your badminton activities; and

g) This Probation Order may be terminated earlier if all of the community work service hours are completed earlier to the satisfaction of your Probation Officer;

h) You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable instruments, drivers’ licences, birth certificates, social insurance cards, mail, invoices, or bills other than ones in your own name, or in the name of your spouse or child;

i) You must not possess any account information, credit or debit card data or any electronic storage medium, including any credit or identification card with a data strip or security chip, that contains personal information, with the exception of your own account information or data or that of your spouse or child; and

j) Before seeking, obtaining, or continuing any employment, or becoming a volunteer in any capacity, that involves having authority over real property, money, or valuable security of another person or corporation, you must inform the employer or organization in writing about this conviction forthwith and provide a copy to your Probation Officer. [ 14 ] There will be a Forfeiture Order signed on the Bench as jointly presented to me by counsel. These are my Reasons. K.

Arthur-Leung, Provincial Court Judge The Provincial Court of British Columbia CORRIGENDUM - Released March 5, 2018 [1] In my Reasons for Judgment dated February 9, 2018, in paragraph [2] where it says: Briefly, the agreed upon facts are such that in 2012, Telus acquired Wolf Medical Systems which was the employer of Ms. Lee and thereafter Mr. Lee became a Director at Telus, supervising approximately 10 - 15 employees; however, in June, 2015, as a result of corporate re-structuring, Ms.

Lee received severance in lieu of notice. should read: Briefly, the agreed upon facts are such that in 2012, Telus acquired Wolf Medical Systems which was the employer of Ms. Lee and thereafter Ms. Lee became a Director at Telus, supervising approximately 10 - 15 employees; however, in June, 2015, as a result of corporate re-structuring, Ms. Lee received severance in lieu of notice. [2] My Reasons for Judgment are amended accordingly.