R. v. Wilson, 2012 NSPC 40

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Wilson, 2012 NSPC 40 Date: 20120419 Docket: 22282707/708/709 Registry: Sydney Between: Her Majesty the Queen v. Harold David Wilson SENTENCE Charges : s.380(1) (a), s.122 , s.368(1) (b), Criminal Code of Canada Judge: The Honourable Judge A. P. Ross Oral Decision: April 19, 2012 Counsel: Mr. Andrew MacDonald, Crown Attorney Mr. Mark Heerema, Crown Attorney Mr. Stephen O ’ Leary, Defence Counsel Mr. William Burchell, Defence Counsel Note to readers : This statement of reasons has been edited slightly for publication in written form.

A verbatim version may be obtained by requesting an audio recording of the proceedings from the provincial court office at the Sydney Justice Centre. 1 . Thank you, Mr. Wilson. That address, as I was about to say, points out to the individual dimensions of this, as well as the public ones, and I ’ m faced with a very difficult task in trying to fashion a sentence that will, in some way perhaps, recognize both. 2 .

I will be as brief as possible here, but I think people will understand that I will go on a little bit in order to do justice to the arguments that were made and to the material that was supplied by counsel. 3 . I won’t recite the facts. Those facts have been agreed upon. They have been tendered in writing. Like the other exhibits, of course,

they are publically available as part of the record. If at some point a written decision is generated, I ’ ll probably attach them simply as an appendix to it. (The agreed facts are attached as Appendix A to this decision) 4 . The offences are publically known. The first is a charge of defrauding the Province of Nova Scotia between June of 2005 and June of 2010. That charge involves a person stealing something that is not his by deceit. The second charge is a charge of breach of trust under s.122 of the Criminal Code between the same dates in connection with his duties of office.

That ’ s a criminal breach of trust and so an additional element of wrong doing over and above the s.380 charge. The s.368 offence to which he pled guilty was causing the Province to act on forged documents. That refers basically to the same time frame. It contains within it elements of a particular type of deception, the use of forged documents. 5 . I won’t say a great deal about Mr. Wilson ’ s personal circumstances but I will relate briefly a portion of the defence brief because it gives some of the facts from his perspective as well, and because it was not tendered as an agreed statement of facts as such. 6 .

As far as the case law goes I will not refer extensively to cases. The Crown or Defence, someone said they had given me a mountain of them, and they have. There are many, many cases on fraud, breach of trust. Suffice to say, I hope, that I have read the relevant case law. I will refer to one or two decisions perhaps, but I certainly don ’ t intend to do a canvas of the vast number of cases that were tendered in this case or others that I ’ ve read in preparation for this decision. 7 . Likewise, the letters of reference. Again they are part of the material filed with the court.

Defence counsel have today quoted from many. Suffice again to say that I have read each and every one. 8 . I do intend to refer and quote in some length from the report of Dr. Bloom. 9 . The submissions of counsel today, and the briefs supplied, represent extensive effort on their part. They were well prepared. Obviously counsel have done a lot of work. They have put together extensive materials and each side has made cogent and compelling arguments. Like some other aspects of this case (the fact for instance that Mr. Wilson was a MLA) that is almost a double edged sword.

It helps, but it hurts at the same time, because having a strong case on both sides just highlights the difficulty of arriving at an appropriate decision. But I do thank counsel for their efforts in putting forward their respective perspectives on this in such a competent fashion. 10 . I have here a submission from the Crown for at least 12 months in a Provincial Jail. It had started out suggesting that it could be as high as 24 months, or two years less a day.

In light of the Bloom report the Crown is prepared to concede that the upper end of that range might be excessive, but it still suggests twelve months, or something more, as an appropriate sentence. 11 . Defence has submitted that a conditional sentence of imprisonment is appropriate here. That could be up to two years. Crown and Defence agree that many of the pre-conditions for a conditional sentence fit. The sentence would be less than two years. I think it ’ s agreed that Mr. Wilson does not pose a danger to the community right now.

The issue there is whether that form of sentence would give appropriate weight to deterrence and denunciation. But defence is proposing that it can, on house arrest and other strict punitive terms. 12 . R. v. Proulx is still the touch tone for conditional sentence cases. That Supreme Court of Canada decision at one and the same time recognizes that a conditional sentence can be punitive, can be harsh, can have deterrent effect, particularly where the accused is required to face the community and to interact with people.

But at the one and same time Proulx recognizes that there may be situations where only a conventional jail sentence, an institutional sentence, can adequately express the principles of deterrence and denunciation. And that, of course, is where this case rests to be decided today. 13 . The context of this sentencing hearing is important. The Crown has made some reference to that, and Defence too from a different perspective and Mr. Wilson, of course, himself puts it in some context with his remarks made just a moment ago.

While I must be cognizant of the message which is sent out by the bottom line here, by the resulting sentence, I must also as a matter of law take into account the individual who stands before the court today. And I will try to make clear the steps which lead me to the ultimate conclusion on sentence in the hope that the public will be cognizant not only of the outcome but of the reasons for it. 14 . Cases and precedent are not helpful or relevant to a sentencing in quite the same way as they are to discrete points of law. There is almost always a wide range of sentence for a given offence.

And there is for fraud too. Many of those have been referred to. And a wide panoply and range of sentences have been issued out of this very court. The cases could be broken down into different categories. The ranges of sentence for fraud by first time offenders - many of the cases fall into that category. I have other cases that fall into a grouping where it ’ s a range of sentence for fraud or breach of trust by public officials perpetrated while in office.

And then I have another group of cases cited by Crown and Defence where a gambling addiction has been considered and that ’ s been a relevant and important factor. Some of the cases deal with people in the private sphere, some with people in the public sphere. The latter, people in the public sphere, are held to a higher standard of probity and are generally called to account more strictly than people in the private sector. 15 . Sometimes counsel come to a court with a joint submission on sentence. The Trask case was mentioned.

In looking at the outcome of the reported cases and the cases in this court that is an important consideration. As I recall the Trask case - and I mention it only because defence counsel made extensive reference to it - Mr. Trask did have very serious health issues, so much so that as I remember the case there was some concern about the impact of jail on his health and even whether he would emerge at the other end. Some of the cases cited where conditional sentences imposed were joint recommendations including a recent case, R. v. Gillis, in the Supreme Court,

in this very building upstairs, where I think a similar quantity of money was obtained by fraud and Supreme Court Justice Bourgeois agreed with a joint submission for a conditional sentence. 16 . Aside from that, whether it ’ s Trask or any other case, the law is not fixed. Social norms change. Social context changes. The law needs to evolve and courts need to be responsive to changing social conditions, to things that are happening in the public sphere and in the local community, to the incidence of crime, to public perceptions etc.. That too needs to be borne in mind. 17 .

A few brief words about the letters of support. In the sense that those letters speak to things that Mr. Wilson did as an MLA - in other words how he used that position to benefit his constituents - I ’ m somewhat wary of giving the letters too much weight. As the Crown has argued this is the very position he occupied, one which allowed him to claim the expenses on an honour system, a system which I think has been tightened up. He used that position to commit the offences. In addition to that, he used people to generate fake expense claims and these people were closely connected to his position as an MLA.

He certainly used his position of trust and his reputation with them to coax them into signing the blank forms. And so I agree with the Crown that the support letters are a bit “double edged”. Also I agree that I do need to be mindful of s. 380.1 of the Criminal Code which is now part of the law that governs sentencing for fraud. I think, however, I can properly accept and consider the letters as character references in the traditional sense. They include reference to his MLA duties, to things he did like getting money for the Legion roof.

But they also, and indeed to a great extent, describe his personal qualities. And so it is in that sense, and not in respect to the number of Bills that he sponsored in the Legislature or whether somebody got a grant or whatever, but more in that sense that I have read and considered the letters of support. They certainly come from a wide range of sources, from all levels of elected officials, levels of government, from friends, police etc.. There are many of them and many are very eloquently written. 18 . With respect to remorse, I ’ m going to return to that when I consider the report of Dr. Bloom.

I note that he pled guilty at an early opportunity. That is certainly something that the court should take into account. He resigned his position as an MLA. Here again I think I should be careful to say that I don ’ t regard the loss of his position per se as being something that is to his credit. But he did step down from it at a very early time. He stopped collecting his salary etc. and in that sense the timing and the manner in which it occurred I think is something that is worthy of consideration.

He appeared today to show genuine remorse and shame when addressing the court, addressing his family and the public. 19 . I also find some resonance in the remarks of defence counsel about his character with respect to raising his children. I ’ ve read that there were some problems in the marriage. This is not to paint Mr. Wilson as a saint himself; he wasn ’ t, and he didn ’ t ever say so, but his partners had some issues too. He seems to have dealt with those very well. Jonathon basically said his father rescued him and I don ’ t think that ’ s over stated. Mr.

Wilson went to Ontario to take his son from his mother ’ s custody - well take him from foster care at that point - took him back here and raised him. He also has a step-child and then there is Gina, of course, the child of his second marriage who also came to live with him after that second relationship ended. The support and dedication he ’ s shown to his children, which pre- dates these offences, is shown to him return by those children. These are things which extend beyond the rewards or punishments of the judicial system.

However, both children now are old enough and with sufficient family support to cope without their father and when I consider the children at the same time I am mindful this is not like some of those cases where incarceration would deprive a child of necessary and sole means of support. 20 . With respect to the issue of whether there was personal benefit to Mr. Wilson - in an obvious sense there was personal benefit, he took the money and put it in his pocket. He didn ’ t have to go into debt.

He indulged his habit without having to scrimp elsewhere although the late-filed exhibit 6, the statement of mortgages, may show that he did borrow or re-finance because he wasn ’ t keeping up with his mortgage because of the gambling. If he had taken this money in the way that he did and had gone on trips to Florida, it would be very clear that he benefited. In using it to gamble I suppose he experienced the exhilaration associated with gambling. He indulged his craving.

I suppose people addicted to nicotine could be said to enjoy smoking in that sense , but it may be a bit of a stretch to say that he enjoyed what he did at the slot machines. It ’ s difficult to characterize the personal benefit aspect in this particular case. Certainly at the end of the day it doesn ’ t seem that Mr. Wilson has emerged with any tangible benefit, any assets he ’ s going to enjoy later on. In fact it appears that what he spent on gambling probably well exceeded what he took fraudulently from the public purse. Somewhat ironically the money he stole went to the Casino.

I don ’ t know if the Casino benefited but I think the Province recoups quite a bit of that from the Casino in turn so some of that money, at least, is chasing its tail. 21 . There are some prices paid by Mr. Wilson outside the legal system. Here again I ’ m not referring to the fact that he ’ s lost his position as a MLA, but there were other consequences suffered as a result of his behaviour and it is appropriate for a court to take note of those - in other words to realize that the sentence of the court is not the only sentence (in a broader sense) that Mr. Wilson suffers.

He is now estranged from his common-law spouse of 19 years, and while that may have been brewing for sometime it didn ’ t just emerge after this came to light. Nevertheless it probably does result in large part from his gambling habit. And there is general and genuine shame and humiliation. These are costs or prices that are suffered by Mr. Wilson as a direct result of his criminal behaviour and they do deserve to be recognized and factored in, to some degree, to the sentencing. 22 . I ’ m going to turn then to the gambling issue, the pathological gambling addiction. Does it matter? Should it matter?

If so, in what way and to what extent? These are the questions. 23 . The issue of pathological gambling was raised first by the Defence prior to the date originally set for sentence in this case. The Defence submitted reports that are now on record from Mr. Ryan and Mr. Aucoin of local Addiction Services. These reports intimated that Mr. Wilson did not simply have a gambling problem, or gambling habit, but had a gambling addiction. The Crown correctly insisted on clearer evidence and an opportunity to explore this issue further.

It requested and was granted and an adjournment for this purpose and the Court now has a full blown psychiatric assessment which was requisitioned by counsel. 24 . Counsel said today that it approached the gambling issue with some skepticism. I think that is appropriate and I think that courts and

perhaps people generally should approach it with some proper skepticism. Claims of being pathologically addicted to something,especially in a context like this, especially where a person criminally accused seeks help for it only after the person is caught - skepticism is a proper response. Some would say that in a more general sense there is too much pathologizing of human behaviour thesedays. This can tend to strip it of its moral content. There’s a tendency to pathologize sadness into depression etc. The Diagnostic andStatistical Manual has grown almost exponentially over the years.

There is some general skepticism about pathologies and again I thinkit’s appropriate to approach them with a skeptical frame of mind. 25. Some turns of phrase were used in court today. One was that Mr. Wilson became a “victim of gambling.” Another was that “badthings happen to good people.” I certainly don’t adopt that terminology and certainly Dr. Bloom doesn’t either as will be seen when Iturn to his report. Phrasing things that way tends to disassociate the person from the behaviour. It’s as though gambling were contractedlike a virus. It’s as though a bad thing happened like getting hit by a car.

It’s not quite the same thing. One cannot disassociate thepathology from the individual, from his or her actions and from the choices that were made. It was said that the gambling was a“primary causal factor.” I suppose in a sense that’s true. Animosity towards a person could be a primary causal factor in an assault. Butthe question is, is the factor so outside the person’s self-control, self-discipline, that it diminishes their responsibility for it, makes themless culpable? Nobody is claiming that gambling makes Mr. Wilson innocent, and he is not himself. But this is the difficult and vexingissue here. 26.

One might analogize with other forms of addiction. There is always a danger in analogies and I recognize that, but two very commonaddictions that are raised in court are alcoholism and drug addiction. In those cases, and in this, the habits themselves are unsavory, theconduct itself is worthy of censure of some sort. Being continually drunk is something that should be discouraged by society. This kindof gambling is not something anybody would want to see. In itself it is worthy of censure of some sort. Mr. Wilson himself recognizedthis by not wanting to gamble in Sydney.

He did not want to do this in full view of his constituents. And so one might ask, and Courtshave had to ask in other cases, to what extent does drug addiction mitigate trafficking? Selling coke to support a cocaine addiction? Towhat extent does alcoholism mitigate drinking and driving? A person might have a drinking habit but do you get behind a wheel of a carand maybe kill somebody? And to what extent does gambling addiction mitigate stealing from an employer? Or in this case thetaxpayer? And to what extent does it mitigate breach of a public trust? 27.

I promised not to make extensive reference to the case law, and I won’t. But in the Defence brief and in the Crown’s submissionsthere are reference to a couple of cases where gambling was looked at very carefully. In our own Province it was the case of R. v.Bambury [2001] N.S.J. No. 222the decision of Justice Cacchione that was mentioned earlier by Crown in its submissions. And then thecase of Horvath which is the Saskatchewan Court of Appeal Decision where extensive citations were referenced in the Defence brief. InHorvath (SK CA), [1997] S.J.

No. 385 the Chief Justice said: These offences were the products of a distorted mind, a mind seriously diseased by a disorder now recognized by the medical communityas a mental disorder. The acts committed at the command of that mind were not acts of free choice in the same sense as the acts of a freechoice of a normal mind. A pathological gambler does not have the same power of control over his or her acts as one who does not sufferfrom that complex disease.

Accordingly where those acts constitute criminal offences the moral culpability, the moral blameworthinessare not of the same order as they would be in those case where the mind is not so affected . . . putting a pathological gambler in jail for ashort period is not a cure. 28. The statement “putting a pathological gambler in jail is not a cure” is true but it is certainly not a full answer to the question : whatsentence? In Bambury Justice Cacchioni cited a passage from the Rosenthal

article that Mr. Burchell also cited in his submission whichstates “a truly pathological gambler may not be deterred by the sentences of a court” (emphasis added). It may be true - I’m not saying itis - that stiff sentences don’t deter people with addictions, would not deter Mr. Wilson. Certainly before he committed these offences hehad examples and knew of them, of people sent to jail. But even if that is true, even if all alcoholics are not deterred from driving whiledrunk by the likelihood of jail, it is difficult to say that no alcoholics would be dissuaded by the punishments provided by law.

And thereis, apart from deterrence, the principle of denunciation. Neither Bambury nor Horvath seem to discuss that at any great length. 29. About the issue of denunciation. In a previous case, coincidentally named R. v. Wilson 2008 NSPC 68 , [2008] N.S.J. 646,a case of a local car dealer where there was much more money involved than there is here, something over a million dollars, but not theposition of trust, I said: Sentences serve in part to fix the seriousness of the crime in the mind of the public. They serve as a public pronouncement of just howwrong certain behaviours are.

Law makers intend that a court should, in passing sentence, give voice to the thinking of reasonable andupright people, to reflect to some degree how they would view the conduct in question. The public look to criminal sentences forauthoritative pronouncements on what is right and what is wrong. Certainly they have many other sources for their values but the justicesystem is an important source. A sentence may properly brand certain conduct as reprehensible and so reinforce the morally correctbehaviour of the vast majority of citizens.

That aspect of sentence, which I think is the aspect encapsulated by the word “denunciation”, is one that must not be lost sight of in thiscase even if the principle of deterrence may have somewhat less effect than it would in others and even if there is a strong need forrehabilitation. 30. One is tempted to inquire what percentage of pathological gamblers steal to support their habit. Do they all? Only a few? One case(I think it was R. v. O’Neil [ 2009] O.J.

No. 5999 in the Defence brief) referred to a study (citing from a 1996 study Gambling in Canadaby the National Counsel on Welfare) where two out of three pathological gamblers commit crimes in order to pay off debts or to continuegambling. If two out of three steal to support the habit, one out of three don’t. And one can’t help but ask: what competing influenceswere at play during the time that Mr. Wilson was engaged in this conduct? 31. During argument I inquired of counsel when it was that Ms. MacKenzie, one of the people whose name was used to submit a falseclaim, when it was that she confronted her boss, Mr.

Wilson, about this, to question the practice. That information was not readily

available; however, I do note from the Statement of Facts that the last expense claim submitted fraudulently under her name was in May of 2008. I might infer that she wasn ’ t too pleased about signing any blank forms after that. And yet Mr. Wilson went on. There were forms submitted for other people in 2009, quite a few, through to December of 2009. I think it ’ s a reasonable inference that he continued despite this having been raised with him directly by Miss. MacKenzie, continued to engage in that behavior. 32 .

One can then go to this end of the spectrum, we can go to April of 2012 where we are now and ask: is it possible that Mr. Wilson stopped gambling? Well, of course, it is - he has. He has stopped, he ’ s curbed his addiction, he ’ s kept it in check, he ’ s proved that it is possible. So presumably the court process, being charged, was enough. 33 . What was not enough? Being confronted by Ms. MacKenzie wasn ’ t enough. The impression that he would have been making on his son by coming home to their apartment at three, four, five o ’ clock in the morning night after night wasn ’ t enough.

What it was doing to his life was not enough. The private thoughts that he harbored of his wrong doing and deceit, these were not enough. The instigation of an audit was not enough. There was a forensic investigation done in February to May 2010 There was an audit completed back in November of ‘ 09. In his interview with Dr. Bloom Mr. Wilson said he was interviewed by staff from the Auditor General ’ s Office in July of ‘ 09. We have the ongoing audit. As I ’ ve said his behaviour persisted beyond that. We have expenses submitted fraudulently for December of ‘ 09, November of ‘ 09. 34 .

What about the fate of other elected representatives in Newfoundland and elsewhere? Was that enough to stop him? What about the fate of people in Glace Bay? Mr. Matheson was mentioned. I should note Mr. Matheson received a conditional sentence of imprisonment. Some might argue that Mr. Wilson took the wrong message from that case but there were others, a case not mentioned here, but counsel may remember, Martin Kennedy, from Glace Bay. Mr. Wilson probably knows who I mean. He went to a Federal Penitentiary, I think, for fraud. He had these examples before him. That wasn ’ t enough.

It does raise of question of what was enough but it also raises the question of what ought to be enough, whether a person has a gambling addiction or not. 35 . I simply wish to say as a conclusion to this aspect of the sentence that Mr. Wilson, by continuing to steal from the public in the face of these competing influences, is not devoid of moral responsibility for his behavior. 36 . I ’ m going to back track a little bit and read a brief passage from defence counsel ’ s submission. I ’ m going to then look at the Bloom report in some detail and then proceed to some concluding remarks. 37 .

The defence brief contains the following passages: The evidence will show that David Wilson was always involved in his community and cared about other people. He participated in community affairs and particularly liked officiating school basketball. He is known to be a caring and compassionate family man. He was highly regarded, well liked and respected in his community and later the broader community. Mr. Wilson became a journalist, reporter and member of the Legislator in his profession life. He was a successful and popular host of a local radio Talk Back Show for many years.

He was a spokesman who eagerly addressed important issues that affected the area and the everyday life of other. Mr. Wilson was known to be an effective advocate for people of all walks of life. He represented people on matters pertaining to such important issues as Worker ’ s Compensation, Unemployment Insurance, Social Assistance, Housing, Child Care and Canada Pension. David Wilson was enriched by his work and felt privileged to be in a position to help others. The evidence will show that Mr.

Wilson ’ s life fell apart because he became a habitual gambler who devised ways to access money to satisfy his gambling addiction. To make his behaviour even worse he was in a position of trust and his actions were planned and carried out over a long period of time. For this, Mr. Wilson is remorseful, ashamed of himself and embarrassed. Given his position the matter is highly public, Mr. Wilson has lost the respect and trust of others, his marriage has ended. He has lost his job and is unemployed. He is not in a position to repay the monetary debt he owes to society.

He had much trouble going out into the community and facing people. He has tarnished the good name of the Wilson family and his family. For all this Mr. Wilson is truly sorry. 38 . I think this is a fair and really quite eloquent

summary of the impact on Mr. Wilson and a brief thumbnail of his personal history in the community . 39 . The report of Dr. Bloom is an important aspect of this case. As I ’ ve said earlier, the case was adjourned so the issue of gambling could be fully addressed. Crown has conceded now that Mr. Wilson had (has, if you will) a pathological gambling addiction. The report of Dr. Bloom corroborates two other reports and the three reports are self-supporting. 40 . Dr. Bloom is a highly qualified medical practitioner.

Briefly he states his qualifications to include certifications in psychiatry by the Royal College of Physicians and in particular in forensic psychiatry. He ’ s a member of the Clark Institute in Toronto. He holds the rank of Assistant Professor in the Department of Medicine at the University of Toronto. He ’ s an Assistant Professor at the Department of Medicine at McMaster. He is a seasonal lecturer with the Facility of Law at the University of Toronto and is a member of the Law Society of Upper Canada. This is person with excellent credentials to give the opinion that he has provided the court. 41 . Dr.

Bloom has canvassed a wide range of sources. He has spoken to both Mr. Wilson ’ s former partners, Ruth and Nancy, if I may just refer them by first name. He ’ s referred to all his medical records. He ’ s looked extensively at banking records, spoken to other family, and so has drawn in a wide range of sources which is important. He explained the purpose of the report to Mr. Wilson, that nothing in it could be considered confidential. Reliability is a very important consideration here. Someone says they are a gambler – okay, well, do you belief it or are they just making up stories?

Obviously these questions arise. About that Dr. Bloom says: He responded to all the questions I put to him in a seemingly, candid and thoughtful manner I noted no indicia of untruthfulness, no fidgetiness, no aversion of eye contact, no vagueness or evasion or contradictoriness. There and elsewhere in Dr. Bloom ’ s report he notes that Mr. Wilson did appear to be truthful and straightforward in providing information to him and in describing his gambling habits. Dr. Bloom says:

To the extent that I could assess collateral information from him the account that Mr. Wilson provided was supported in his credibility by some external corroboration. And it otherwise impressed me as being internally consistent and not contradicted by anyone or any source of information that I had access to. I consequently did not have any significant concerns about his reliability. That is from an expert who is acutely aware of the possibility of a psychiatric patient shading the truth, particularly someone who is awaiting sentence. 42 . Dr. Bloom goes through a detailed family history.

I won ’ t report on it here. He goes through an early work history. He notes that when Mr. Wilson first became a MLA he approached political office as a job but then became more interested in the ability to beneficially impact others. He came to feel that he job gave him an opportunity to help a lot of people. He says: Mr. Wilson candidly admitted that he did enjoy the fame and the celebrity of political office and he enjoyed the opportunity of dealing with the media. He goes on to say: I believe he approached this discussion of his actual accomplishments and recognition of his role in a relatively modest manner.

He did not tell me nearly as much as I learned from reading the various testimonials and references that were provided or which I otherwise learned from interviewing collaterals, for example his son, Johnothan. Mr. Wilson didn ’ t exaggerate or even go into the full extent of his accomplishments with Dr. Bloom. Dr. Bloom learned a lot of that by talking to other people. Mr. Wilson did not make a conscious attempt to portray a flattering picture of himself. 43 . Dr. Bloom talks about the relationships. There were some issues in those relationships.

The earlier one with Ruth that his son touched upon today in evidence and also the later one with Nancy - they both turned out to be a rocky road for all concerned. He spoke to Mr. Wilson about his temper. Mr. Wilson said he had a temper. He said he ’ s never displayed physical violence. He said his temper would arise within the relationship with his two partners occasionally and they themselves referenced it. So he acknowledged anger management difficulties but denied any overt violence and, of course, there is absolutely no indication that he ever engaged in anything like that. Mr.

Wilson began to to play VLT ’ s in 1996. Dr. Bloom says he thinks Mr. Wilson became interested in casino gambling at about the time he became an MLA in 1999. Quoting from the report: Once he started to come to Halifax regularly for sittings of the Legislature he started to attend a Halifax casino on a regular basis. Gambling did not become a problem for him until about late 2004, early 2005, and this occurred during the time he spent in Halifax when the Legislature was in session, which I understand amounted to about six months of the year.

But even during the summer, when the Legislature was on break, he continued to drive to Halifax weekly to attend caucus meetings. According to Mr. Wilson things were deteriorating at home during this period due to his wife, some of his wife ’ s issues, some marital discord, etc.. Against that background of his difficulties in his personal life, Dr. Bloom, says: He reportedly started going out to the casino more frequently. He developed an interest in slot machines and played them at increasing amounts such that he ended up in what he referred to as “ high rollers room. ” That ’ s what Mr.

Burchell was speaking about earlier where the bank machines are readily available and where a spin can cost a person anywhere from a dollar to a hundred bucks. Dr. Bloom said: He tended to go to the casino either very late at night or in the early hours of the morning, would often stay until between three and five in the morning, sometimes three to four days a week. Regularly withdrew cash from the machine in that room and his mission often to recoup money that he ’ s just thrown away. He said he attended the casino in Sydney infrequently because he did not want to be seen there.

He said that after completing one episode of gambling he would anticipate the next one and experience some irritability and jitteriness when in Glace Bay waiting to get to Halifax so he could gamble again. At the casino he experienced a measure of exhilaration. 44 . He told Dr. Bloom he tried to stop many times but was not able to. He repeated that in court today. He reported his longest abstinence as being a couple of weeks over a Christmas break. No matter what the circumstances he reported being edgy and irritable during this period of time. 45 .

He was asked about what he conveyed to the Auditor General ’ s Office when they questioned him about excessive expense claims and reportedly he acknowledged to Dr. Bloom that he admitted that he lied about them. He admitted as well that the behaviour stopped when he learned that the Auditor General was looking into such matters and he reckoned he could become the subject of closer scrutiny. 46 . I ’ ve earlier noted that his behavior seems to extend somewhat beyond that into November and December of ‘ 09. Be that as it may Mr. Wilson said he felt terrible when he knew the jig was up.

He went on to described the sense of moral failure and impending shame as being sickening. Dr. Bloom says: The manner in which he said this to me resonated as being genuine as did the remorse in relation to his actions. 47 . He told Dr. Bloom how he would commit the offences. He denied ever engaging in fraudulent expense claims to purchase tangible things or support a high lifestyle. People contacted by Dr. Bloom, his two former partners, they say the same thing. They say that they did not lead a extravagant lifestyle. Dr. Bloom contacted family doctors, the clinicians here at the Addiction Services.

He refers to those extensively. Presumably referring to his situation at home he says:

Mr. Wilson estimate he might at times spent as much a three to four thousand dollars a week gambling, saw it as an attractive way to escape from painful feelings and situations. 48 . Both former spouses were surprised at the fact that he would steal to support such a habit. Nancy denies ever having had an extravagant lifestyle and she said in fact they lived frugally. She described an expensive taste in cars as being a Jeep and a Nissan Altima. Dr. Bloom notes that nobody else described those cars as being extravagant. A friend of Nancy ’ s was spoken to. Ruth was contacted, his first partner.

They separated back in 1988. Dr. Bloom spoke to Johnathan, I don ’ t need to relate that here, we heard from Johnathan. In his formulation and conclusions Dr. Bloom says: Mr. Wilson asserts that no money was taken to support lifestyle more generally, that is, to live extravagantly. He claims on the contrary that he tended to live relatively modestly for an individual who was visible on the Nova Scotia landscape. He provided access to collateral information as well as to banking records. Those records are augmented today by the reference to the mortgages. Dr. Bloom says: Mr.

Wilson did not become involved in treatment to create an impression for the world at large that he had a gambling problem, simply to mitigate a disposition by the criminal justice system. That he did not bring his gambling problem to light until after the audit and investigations began is not surprising. Individuals with addictions and impulse control disorders, like gambling, tend to hide their problems from others especially if they are in personal or professional situations in which the addiction and impulse control disorder would reflect very badly on them. Denial is more the rule than the exception. Here Dr.

Bloom says that it is indeed a feature of pathological gambling that he would continue in the face of these competing influences that I referenced earlier. However, I hold to the view, in this forum, treating this as just not a medical but a legal issue, that Mr. Wilson is not relieved of moral culpability by failing to heed some of the competing influences that he was well aware of at the time he engaged in this disreputable and distasteful behavior. Dr. Bloom concludes: Mr.

Wilson merits a diagnosis of pathological gambling, that he ’ s a highly driven individual and the fact that he would gamble intensely doesn ’ t surprise Dr. Bloom. He doesn ’ t think that he conjured up the gambling problem in order to mitigate his culpability or to attract the public ’ s or the court ’ s sympathy. 49 . I accept that. However, as I said a moment ago that ’ s not the end of the story either. 50 . A Pre-Sentence Report was filed. Again it ’ s a matter of record and I don ’ t think there ’ s any need for me to repeat it. 51 .

One principle that a court must always keep in mind is the principle of restraint. Here there is a need to denounce. While the efficacy of deterrence, general deterrence, may be less where there is a pathological addiction involved - in other words it may be less effective in curbing or deterring the behavior of those who are so afflicted - nevertheless I think deterrence is still at play, if you will, in this sentencing. It is still an animating principle, and certainly denunciation is very much alive.

However, a court must remember that the need to denounce or deter, whatever it might be, to punish, means that there should be no more punishment than is necessary. In substituting public justice for private vengeance the law disavows punishment which is excessive or gratuitous. We are not here to feed a thirst for revenge. I recognize that and I do bear that in mind in passing sentence today.

In other words, the court needs to impose what it believes is necessary but not more than is necessary to uphold the principles, the animating principles of sentence which in this case, as I say, are deterrence and denunciation. 52 . Sometimes the consequences define the seriousness of criminal conduct. That would be the case in the other Wilson case that I referenced because there was so much money taken. That could be said to be the case in the one that Mr.

Burchell referred to, the name of which eludes me I must say, I ’ ll take him at his word that we dealt with it here but I do recall a case where someone stole from a senior, breached a position of trust and there were ramifications for that senior citizen certainly. The person got a conditional sentence, perhaps on a joint recommendation. I think there may have been some restitution paid there. Nevertheless you know the potential consequences were very much to the fore in that case. Here it ’ s not so much consequences (in that sense) which make this conduct serious.

I suppose $60,000.00 . . . when you look at the Federal Budget they are talking in terms of billions now . . . I suppose it ’ s not a lot of money in that sense. But the seriousness here derives not so much from the particular consequences, money stolen, impact on a victim, etc. It derives from the conduct itself, from the doing of the act. It arises in the conduct itself which in this case is the behaviour of someone who was entrusted by his office with the welfare of his constituents and the people of Nova Scotia. Mr. Wilson used his public office to bilk the tax payers.

This is not merely a fraud against some third party, like the casino or a bank perpetuated while he was an MLA. But it ’ s a fraud in which the very office was used to perpetuate the fraud. And that, of course, is the very serious abuse of trust which forms one of the elements of the offence of the second charge here. He abused the very privileges of his office to commit the offence. 53 . When we look at police officers we regard them as people who enforce the law. Courts rightly frown seriously on those among the police who choose to break it.

The police officer who drinks and drives: there may not be any victim in the conventional sense. But the conduct in someone like that is itself damaging to society in a way that a similar offence by a civilian is not.

54 . Mr. Wilson is among those people who by virtue of his elected office make the law. MLA ’ s, MP ’ s they don ’ t just dispense favours, they don ’ t just advocate for constituents, they just don ’ t solve problems, they are not mere ombudsmen, they write the law. Police who enforce the law should uphold it, people who make the law they should uphold as well. There is a crying public need for this. The integrity not just of the justice system but our system of government is called into question if elected officials embark on the slippery slope of theft and corruption. 55 .

Specific deterrence is not needed here. I ’ m convinced Mr. Wilson is genuine in his remorse and is on a better track and under appropriate care. He ’ s shown that he can change course. Rehabilitation and continuing counselling for gambling addiction is clearly called for.

A part of the sentence I will impose therefore will be a probation order for a period of 18 months in which he will report to a probation office; he will abstain from the use, consumption and possession of alcohol given that alcohol was something that he might use to lubricate his way into gambling behaviour; he will stay away from places where alcohol is sold as a primary product. Another term will be that Mr. Wilson is not to engage in any betting or in any game within the meaning of s. 197 of the Criminal Code of Canada . Mr.

Wilson is not to be found on the premises of any casino, gaming house or similar establishment and he will continue with assessment, counselling and treatment for gambling as recommended by any doctor or by his probation officer. Clearly that component of sentence ought to be imposed, I think all counsel would wish it to be, and it is. 56 . The more difficult aspect is the question of the custodial sentence, whether it should be a conventional jail sentence, and the length of that sentence.

If I were to take circumstances like this, if it were possible, you know it isn ’ t, but if it were, and just distill from all those circumstances the fact that Mr. Wilson was an MLA, if it were possible to remove that from the equation altogether, then I think a lengthy conditional sentence, a community based sentence with a curfew and house arrest might well be an appropriate sentence. If Mr.

Wilson were here as an MLA having perpetuated the fraud that he did over such a long period of time, but if I could subtract the gambling addiction, if that didn ’ t exist as part of the equation, I would have no hesitation whatsoever in sentencing Mr. Wilson to a lengthy jail sentence in the range of one to two years that was recommended by the crown. Here I ’ m persuaded by evidence on gambling, by the things that I referred to earlier and attempted to explain, that the appropriate range or length of sentence should be less than which the Crown is seeking, that of 12 months.

I think something in the range of eight to ten months is more appropriate. 57 . As to the form of sentence here I am persuaded, taking account of the need for deterrence and denunciation, that this sentence should carry with it the stigma of a sentence served behind bars. 58 . Mr. Wilson, stand up please. Mr. Wilson I ’ ve attempted to explain why I must do as I do now and that is to impose to a sentence in the Cape Breton Correctional Centre of nine (9) months. It will be followed by probation for the length of time, 18 months, that I mentioned earlier, with those terms.

You will come out with family and community support. This is a very sad day for everyone involved here and for the people of Nova Scotia but it is a step that I think must be taken. You are now in custody to serve nine months in the Cape Breton Correctional Centre. 59 . Mr. Wilson, just a moment please. I am going to and I did intend to make a s.738 order for restitution. I recognize Mr. Wilson does not have present ability to pay but I think that debt should be re-paid if possible in the years to come and an order under s. 738 is made in the amount of $60,995.00.

Dated at Sydney, Nova Scotia, this 19 th day of April, 2012 __________________________________________ Judge A. Peter Ross APPENDIX A 1.

CHARGES On the 13 th of September, 2011 Harold David Wilson pled guilty to the following offences: Between the 30 th day of June, 2005, and the 30 th day of June, 2010, at or near Halifax, or elsewhere in the Province of Nova Scotia, did by deceit, falsehood, or other fraudulent means unlawfully defrauded Her Majesty the Queen in the right of the Province of Nova Scotia, of money of a value exceeding $5,000 by submitting false and/or improper expense claims to the Speaker of the Nova Scotia House of Assembly, contrary to s.380(1) (

a) of the Criminal Code ; and furthermore, Between the 30 th day of June, 2005, and the 30 th day of June, 2010, at or near Halifax, or elsewhere in the Province of Nova Scotia did, being an Official, to wit a Member of the Legislative Assembly for the Province of Nova Scotia, did commit fraud and/or a breach of trust in connection with the duties of his office by submitting false and/or improper expense claims to the Speaker of the Nova Scotia House of Assembly, contrary to s.122 of the Criminal Code ; and furthermore, Between the 1 st day of January, 2006 and the 30 th day of January, 2010, at or near Halifax, or elsewhere in the Province of Nova Scotia, did knowingly cause Her Majesty the Queen in the right of the Province of Nova Scotia to act upon forged documents, to wit expense claims submitted to the Speaker of the Nova Scotia House of Assembly, as if they were genuine, contrary to s.368(1) (

b) of the Criminal Code .

2. FACTS (

a) Background: MLA Expense Claims Members of the Legislative Assembly were permitted to claim for legitimate expenses incurred by them in carrying out their work in representing their constituents. The acceptable expenses and amounts for reimbursement were set by regulation made by the Legislature Internal Economy Board pursuant to the House of Assembly Act RSNS 1989. Members were entitled to be reimbursed for reasonable expenses incurred. Expense claims were submitted to the Speakers Office but payment was made by the Department of Finance. (

b) Background: Audits by Auditor General In November 2009, the Office of the Auditor General (AG) for the Province of Nova Scotia completed an audit of the constituency and expense claims of Members of the House of Assembly covering the time period from July 2006 to June 2009. The objective of the audit was to provide an opinion on whether payments to the Members’ were reasonable, adequately supported, and in accordance with legislation, regulations and guidelines.

The audit identified serious weaknesses in the funding system including instances of inappropriate and excessive expenditures claimed by, and reimbursed to, Members. However, in this initial instance, the AG did not uncover evidence of illegalities which would have warranted further investigation. The audit results were published in a report on February 3, 2010. Following the release of the report, the AG received new information which indicated expense claim irregularities by certain Members which could be criminal in nature.

As a result of this new information, the AG undertook a forensic investigation between February and May 2010. (

c) RCMP Investigation: Harold David Wilson On May 12, 2010, the AG referred investigational files of Members of the Nova Scotia House of Assembly to the Nova Scotia RCMP Commercial Crime

Section for criminal investigation. Included in the files was one pertaining to Harold David Wilson (DOB: November 4, 1955). H. David Wilson was first elected as a Member of the Legislative Assembly in a by-election for the electoral District of Glace Bay on April 4, 2000. He was subsequently re-elected on August 5, 2003 and June 13, 2006. He resigned his office on March 11, 2010. As part of their investigation relating to Mr. Wilson the RCMP executed a Production Order for Bank of Nova Scotia account #7003 01674 87. Wilson was the sole signing authority on this account.

Payments made by the Department of Finance as a result of MLA Expense Claims submitted by Wilson to the Office of the Speaker were negotiated through that account. The RCMP investigation identified five individuals whose names appeared on 37 ‘official receipts’ totalling $60,995.00. These receipts are titled “House of Assembly Nova Scotia Official Receipt Constituency Expenses”. The MLA Expense Claims were submitted to the Speaker’s Office for reimbursement.

Cheryl Ann MacEachern Wilson submitted seven ‘official receipts’ to the Speaker’s Office in support of payments he had allegedly made to Cheryl Ann MacEachern. Wilson was reimbursed for each of these expense amounts. ‘Official Receipts’ and MLA Expense Claims Date Receipt No. Amount Claim Period 2008-07-10 4189 $1,500.00 August 2008 2008-10-14 3378 $1,500.00 November 2008 2008-12-02 4191 $2,600.00 December 2008 2008-12-15 7251 $2,000.00 January 2009 2009-03-18 4066 $2,500.00 April 2009 2009-04-19 4193 $1,000.00 May 2009

2009-06-14 7207 $600.00 July 2009 Cheryl Ann MacEachern worked for Wilson at his constituency office in Glace Bay on two separate occasions in 2008. The first occasion was sometime in the spring of 2008, working two or three days for three-five hours per day, conducting daily business at the constituency office such as answering phone calls. The second occasion was late summer or early fall of 2008, working 3 full days in total, helping with year end duties, including photo work, editing, whatever needed to be done. MacEachern stated that she actually did not expect to receive any pay for this work but Mr.

Wilson gave her a total of $1,000.00 in cash on one occasion. MacEachern was not familiar with the seven ‘MLA Expense Claim’ forms she was shown, never having been present when they were being completed. Wilson called her and advised her she might be getting a call from the AG and it was “No big deal.” Later he admitted there were six or seven receipts with her name on them and asked her if “There was anyway she could help him.” After this conversation she received a T4 slip in the mail for money she had not received.

She sought legal advice and advised Wilson she would not speak to him anymore and she cannot help him. He admitted he took the money because of gambling problem.

Upon reviewing the seven ‘official receipts’, MacEachern was able to state the following: • Only receipt No. 4189 contained her real signature, as she had signed a blank form on the request of Wilson, and she was uncertain as to whether it was her real or not signature on receipt No. 4191; • The remaining five receipts did not contain her real signature; • She only ever received one payment of $1,000.00 cash from Wilson; • She did not receive the additional $10,700.00 as claimed by Wilson; and • She started working at Citizenship Canada on January 4, 2009, making it impossible for her to be working for Mr.

Wilson during the 2009 time period. David MacKeigan Mr. Wilson submitted expense claims to the Speaker’s Office and was reimbursed by the Province of Nova Scotia for payments allegedly made to David MacKeigan. ‘Official Receipts’ and MLA Expense Claims Date Receipt No. Amount Claim Period 2008-12-03 4197 $3,700.00 December 2008 (Nov./Dec.) 7252 $1,850.00 February 2009 2009-02-15 4194 $500.00 March 2009 (March 2009) 4192 $404.75 May 2009 2009-07-08 4067 $1,800.00 August 2009 2009-10-21 7209 $437.52 November 2009 David MacKeigan worked as Mr.

Wilson’s campaign manager in 2004 and filled in for his assistant, who was on sick leave, starting in November 2008. He would answer the phone or work on case files. For this work he was paid on an irregular basis by Wilson, either in cash or by cheque. He received somewhere between $400.00 and $700.00 for this work, and not the amounts claimed by Mr. Wilson. In January 2009 MacKeigan started working full-time for Mr. Wilson, and was paid a salary through the Speaker’s office. He received a

$15,000.00 bonus at the end of 2009 from Mr. Wilson’s office that was direct deposited to his bank account. He was employed at that position until Mr. Wilson resigned, in March of 2010. MacKeigan did not prepare the Expense Claims and didn’t know who completed them, but he did recognize Mr. Wilson’s signature on one of them. Upon reviewing the six ‘official receipts’, MacKeigan was able to state the following: • Four of the signatures were his, but he does not recall signing the receipts when the amounts were filled in.

He believes the amounts were filled in later; • He received money from three of the receipts: $404.75, 437.52 and $500.00, but he did not receive any of the $7,350.00 listed on the remaining three receipts: $3,700.00, $1,850.00, and $1,800.00; and • MacKeigan received a 2009 T4 from the Speaker’s office in the amount of $2,300.00, but it was later reversed. He was only paid by salary. Joseph MacPherson Joseph MacPherson is Mr. Wilson’s brother-in-law. Eleven ‘official receipts’ for payment of funds to MacPherson were claimed for reimbursement on MLA Expense Claims submitted to the Speaker’s Office by Wilson. Mr.

Wilson was reimbursed by the Province of Nova Scotia for these claims. ‘Official Receipts’ and MLA Expense Claims Date Receipt No.

Amount Claim Period 2006-12-19 4008 $2,000.00 December 2006 2007-11-07 3335 $2,500.00 December 2007 2007-12-07 4061 $400.00 December 2007 2008-05-18 4064 $600.00 June 2008 2008-06-18 3376 $800.00 July 2008 2008-07-31 3377 $600.00 September 2008 2008-12-02 4198 $5,000.00 December 2008 2009-02-15 7201 $850.00 March 2009 2009-05-14 3379 $900.00 June 2009 2009-06-14 7208 $500.00 July 2009 2009-12-16 3337 $3,000.00 December 2009 MacPherson met with Wilson in 2010 after he received a T4 for $4,750.00; money he had not received.

Wilson told MacPherson that “the water was going to get hot” and that “he should tell the truth”. Wilson also advised MacPherson that the AG might contact him to clarify some receipts. Over the past number of years, MacPherson had done some random painting at Wilson’s office in Glace Bay. He and Wilson had agreed that he would be paid twice a year. Upon reviewing the 11 ‘official receipts’, MacPherson was able to state the following: • Four of the signatures were his and the remaining seven were not his;

• He had signed several blank receipts, one each for 2006, 2007, 2008 & 2009; • He would have received a maximum of $4,800.00 for 2006, 2007, 2008, & 2009 ($1,200.00/ year). He doesn’t recall issuing any receipts to Wilson; and • Someone must have forged his signature. Ann Marie McKenzie Mr. Wilson submitted 12 ‘official receipts’ for payment of funds to Ann Marie McKenzie (who also went by Anne Marie Weatherbee during part of the relevant time period) as part of claims for reimbursement as MLA Expense Claims to the Speaker’s Office.

He was reimbursed for these amounts. ‘Official Receipts’ and MLA Expense Claims Date Receipt No.

Amount Claim Period 2006-01-19 3694 $1,200.00 February 2006 2006-02-16 0174 $600.00 March 2006 2006-05-19 0175 $2,800.00 June 2006 2006-08-16 3326 $1,500.00 September 2006 2006-12-07 3329 $6,500.00 December 2006 2007-04-12 2393 $2,400.00 May 2007 2007-05-13 3331 $4,000.00 June 2007 2007-09-28 3336 $1,000.00 November 2007 2007-11-07 2397 $1,500.00 December 2007 2007-12-07 4200 $4,495.00 December 2007 2008-02-10 4062 $1,500.00 March 2008 2008-04-20 4186 $1,000.00 May 2008 Ann Marie McKenzie worked for Wilson at his constituency office in Glace Bay as an Administrative Assistant from January 2003 until November 2008.

Her duties included dealing with complaints and problem solving for the constituents of Glace Bay. McKenzie was a salaried employee receiving her pay cheque from the Government of Nova Scotia, initially this was received by mail but later she received it by direct deposit into her bank account. McKenzie was not familiar with the MLA Expense Claim forms, as Wilson would complete these himself. McKenzie was familiar with the ‘official receipt’ form and that she had signed her name to a number of blank ones (around a dozen) at the request of Wilson.

This practice stopped after she argued with Wilson concerning this practice and after she contacted the Liberal Party Caucus offices in Halifax and was advised it was improper. Upon reviewing the 12 ‘official receipts’, McKenzie was able to state the following: • Eight of the signatures were hers (this is where she had signed the blank forms at the request of Wilson); • Four of the signatures were not hers;

• During this time period she had received a total of $1,200 or $1,300 cash from Mr. Wilson. These were for the following items: $700 in Christmas cards, $200 extra for vacation, and $300 or $400 for a Dell computer she had sold to Mr. Wilson for the constituency office; • She never received any of the remaining $27,195 from the total of $28,495 listed on the official receipts; • She was familiar with the handwriting of Mr. Wilson and that she can say that it was his handwriting used in completing all 12 ‘official receipt’ forms.

Michelle Parsons Three ‘official receipts’ for payment of funds to Michelle Parsons were claimed for reimbursement on MLA Expense Claims submitted to the Speaker’s Office by Wilson. ‘Official Receipts’ and MLA Expense Claims Date Receipt No. Amount Claim Period 2007-07-18 3333 $1,800.00 August 2007 2007-08-13 4012 $1,600.00 September 2007 2007-08-31 3334 $1,800.00 October 2007 Michelle Parsons is Wilson’s niece. She worked (Monday to Friday) as a secretary for Wilson during July and August of 2007. Wilson paid Parsons by cheque on two occasions, receiving either $900.00 or $950.00 on each occasion.

Upon reviewing the three ‘official receipts’, Parsons stated the following: • The three signatures were hers; • She never received the money stated on two of the first two receipts but received the amount from the third receipt; • She cannot recall if the receipts were completed or not when she signed them, or how many receipts she signed. She would not have signed receipts with inaccurate amounts on them; and • She cannot remember who was present when she signed the receipts, but assumed it would have been Wilson.

Summary The investigation revealed that between January 19, 2006, and December 16, 2009, 36 ‘official receipts’ were written in the names of five employees who worked for Wilson at various times for during this time period. In total Mr. Wilson was reimbursed $60,995.00 for payments he said he incurred as constituency expenses paid to five named individuals. The five named individuals never received this money nor were they entitled to receive it. Mr. Wilson has defrauded the taxpayers of Nova Scotia while serving as a Member of the Legislative Assembly of $60,995.00.