R. v. Ojeda Date:, 2017 BCPC 279

Citation: R. v. Ojeda Date: 20170824 2017 BCPC 279 File No: 241260-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARGARITA EMA OJEDA EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.F. GALATI Counsel for the Crown: T. Follett Counsel for the Defendant: A. Ejsmont Place of Hearing: Vancouver , B.C. Date of Judgment: August 24, 2017

A Corrigendum was released by the Court on September 19, 2017. The correction has been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: On May 26th of this year, Ms. Ojeda pleaded guilty to a single count of theft over $5,000. Sentencing materials were filed and the matter was adjourned for hearing on July 4th. The amount involved is $373,747.72 and the victim is the College of Licenced Practical Nurses which I will refer to as the College.

The circumstances of the offence are not in dispute and are set out in a document which was filed as well as the written submissions provided by Crown counsel. [ 2 ] Ms. Ojeda commenced working for the College in October of 2006 and, in April of 2008, she became a financial services coordinator which gave her access to bank accounts as well as to a safe containing cash and cheques. She also had sole access to the bank payment and account information which was computerized. Commencing in January of 2010, Ms.

Ojeda began stealing from College funds and committed these thefts until early January of 2013. [ 3 ] The thefts consisted primarily of wrongful transfers of funds to either her personal bank account or her credit card accounts. There are 49 such transfers which in total amounted to misappropriation of $303,512.03. Most of these transfers were entered on the College records as payments to suppliers and, for some of the transactions, she concocted false invoices.

She also misappropriated cash paid to the College for licences and examinations in the amount of $62,936 and she made unauthorized purchases for her own benefit on College credit cards in the amount of $7,299.69. The total amount of the thefts committed, as I indicated earlier, was $373,747.72. [ 4 ] In January of 2013, the College switched to a different accounting software and Ms. Ojeda's access to the College bank payment and account information system was terminated. She gave notice of her resignation on February 5th of 2013 and the last day she worked was February 8th of 2013.

Shortly after her departure, some of the thefts were discovered and the College sent Ms. Ojeda a letter demanding repayment, to which, she responded by email on May 3rd of 2013 acknowledging she had been waiting for this time to come and was responding with deep regret and shame. [ 5 ] In her response, she confirmed that she had taken funds and stated she would do whatever the College required to pay back what she had taken. Since then, Ms. Ojeda has made some restitution.

The sum of $10,000 was paid by cheque when she entered her plea and, in addition, she and her husband have granted the College, I believe it is power of sale and made an assignment to proceeds in respect to a condominium owned by them jointly. The College has not yet sold the condominium, but there currently appears to be gross equity of approximately $205,000. The net proceeds -- sorry. [ 6 ] MR. FOLLETT: Your Honour, I believe the condo was sold just recently.

It has not yet closed at approximately $12,000 over the asking price. [ 7 ] THE COURT: Okay, I do not know what difference that makes to the numbers that I used. Do we know what the net proceeds are likely to be or approximately? [ 8 ] MR. EJSMONT: I apologize, Your Honour, my friend's information is in advance of mine, so I did not know it had sold. [ 9 ] THE COURT: All right. [ 10 ] Well, based on the submissions made, I had the net proceeds that would be available to reduce the loss suffered by the College as dependent on what the actual sale price was, but that it was estimated at $162,375.

In any event, the point I am making is that Ms. Ojeda has made some significant restitution to this point. [ 11 ] The Crown submits that the appropriate punishment for Ms. Ojeda is a sentence of imprisonment for 18 months followed by a lengthy probation order. The Crown acknowledges that I must consider a conditional sentence, but submits that such a sentence would not sufficiently address the sentencing objectives of deterrence and denunciation, relying particularly on the following aggravating factors: (

a) the thefts involved a breach of trust which is a statutorily aggravating factor pursuant to s. 718.2(a)(iii) of the Criminal Code ; (

b) they extended over a period of three years and involved numerous transactions; (

c) there was a degree of sophistication involved in some of the transactions which involved false accounting entries supported in some cases by false invoices; (

d) the large amount of the total thefts; (

e) the impact on the staff and members of the College including upset, the internal investigation, and all that went with it and the audit costs; the raising of fees to offset the loss and the costs that were necessitated; the diversion of management time to deal with the situation and a perceived loss of reputation for the college; and finally (

f) the fact that Ms. Ojeda has a dated prior conviction from 1992 for theft under $1,000. [ 12 ] With the exception of the prior record which, in my view, is insignificant by reason that it dates back 25 years and was for a minor offence, I agree with the position taken by Crown that the aforementioned factors are all aggravating. I also agree with the Crown submission that the range of sentences for a substantial breach of theft such as this case extends from high-provincial time to low-federal time and, if the appropriate sentence is provincial time, a conditional sentence must be considered.

That is the central issue in this case and was addressed extensively in the submissions of both counsel.

[13] The Crown submits that there are no "extreme personal mitigating factors" to warrant a conditional sentence whereas thedefence submits that Ms. Ojeda's personal circumstances in conjunction with the mitigating factors that are present support theimposition of a conditional sentence as the least restrictive sanction in accordance with ss. 718.2(

d) and (

e) of the Criminal Code. [14] The mitigating factors are as follows: (

a) the early acceptance of responsibility and expression of remorse; (

b) the early guilty plea indicative of true remorse which resulted in a significant saving of court time and spared the witnesses fromhaving to testify; (

c) the significant mental health issues which pertain to Ms. Ojeda; (

d) the significant efforts at rehabilitation since the time the offending ceased approximately four years ago, and the family andcommunity support which suggest that Ms. Ojeda will continue as a prosocial member of society; and (

e) the restitution made to date and the possibility of further restitution. [15] Counsel have provided several cases in support of their respective positions. I have reviewed all of them, but I will onlymention those I found of particular assistance. I had intended to file the tables of contents from the respective casebooks and I will haveto do that at a later time because I forgot to bring the casebooks. [16] In any event, R. v. Reid, 2004 YKCA 4, was not included in either casebook, but was referred to in R. v. Burkart, 2006 BCCA446. Ms.

Reid, who was approximately 30 years old at the time, stole approximately $212,000 from her employer over a period ofapproximately three-and-a-half years by way of 277 separate acts of theft. The Court of Appeal held at paragraph 15 that, generally,there should be a substantial period of incarceration where the sums involved are significant, the thefts took place over a lengthy periodof time, there is little hope of restitution, and there is an absence of remorse.

Given those findings, the Court of Appeal felt that theappropriate sentence should have been between two and three years' imprisonment. [17] In Burkart, a case of employee theft in the amount of $81,400 over a one-year period by a bank manager who apparently had agambling problem, the Court of Appeal held that there need not be "unusual circumstances" to justify the imposition of a conditionalsentence and, in the result, determined that was the appropriate sentence. It should be noted that Burkart had pleaded guilty, wasremorseful, and that specific deterrence was not an issue. [18] In R. v.

Dickson, 2007 BCCA 561, a case involving thefts by a bookkeeper from two separate employers in the total amount ofapproximately $148,000, the British Columbia Court of Appeal stated at paragraph 64 that general deterrence can be satisfied by aconditional sentence in cases of serious fraud or theft where there are, again, "extreme personal mitigating circumstances." [19] That phrase, as best as I can tell, appears to have originated in an older case from the Ontario Court of Appeal, R. v. Wismayer(1997), (ON CA), 115 C.C.C. (3d) 18, where Mr.

Justice Rosenberg remarked there were no such circumstances ashad been present in two even older large-scale fraud cases where conditional sentences had been granted. The same phrase was quotedby the British Columbia Court of Appeal in R. v.

Khan, 2002 BCCA 703, in which a sentence of actual imprisonment was found to be fitwhere the only mitigating circumstances were that the accused pleaded guilty after the preliminary inquiry, expressed his remorse, andhad no prior record. [20] In Dickson, the offender had a record for fraud under $5,000, theft under $5,000, and two counts of making false representationsunder the Employment Insurance Act.

It appears she committed the Employment Insurance Act offences at about the same time as shewas committing the first employee theft and that she committed the fraud-under and theft-under offences as she was completingprobation for the Employment Insurance Act offences.

Further, she had written forged letters of support for herself to be used at hersentencing hearing. [21] She had pleaded guilty and made a full restitution, but the most important consideration which supported a conditional sentencewas stated at paragraph 67 and 70 to be the undiagnosed bipolar condition that the offender suffered from at the time of the offences forwhich she had been receiving treatment that had not been in place for a sufficient length of time to deter her from forging the supportletters.

The Court of Appeal relied on a medical opinion that had been discounted by the sentencing judge without a sound basis fordoing so. That medical opinion drew a direct causal connection between the mental illness and the commission of the offences. [22] These British Columbia Court of Appeal cases all refer to R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, the seminaldecision from the Supreme Court of Canada regarding conditional sentences where it was held at paragraph 115 that each case must beconsidered individually and that the presence of aggravating circumstances is not determinative to rule out a conditional sentence. Thereis no mention of a requirement for extreme personal mitigating circumstances in Proulx and it should be noted that Wismayer predatesProulx.

I do not consider that the British Columbia Court of Appeal in Dickson and Khan was introducing such a requirement asopposed to making a general observation from prior cases in the context of the particular facts of the case before the court in each case. [23] A similar observation was made by the Honourable Judge Howard of this court in R. v. Datsko, 2009 BCPC 106, at paragraph41 where she says that the reference to extreme personal mitigating circumstances is nothing more than a factual observation that therewere extreme mitigating circumstances in a number of cases where conditional sentences were granted.

It was also her opinion that thepresence of extreme mitigating circumstances is not a precondition for the granting of a conditional sentence. [24] Although not in direct reference to this phrase, the British Columbia Court of Appeal stated at paragraph 36 of Dickson that itwould be an unwarranted onus to require an offender to demonstrate clear reasons why a conditional sentence order should be grantedand referred to the emphasis in Proulx that the particular circumstances of the offence and the offender must be considered in each case. [25] In R. v. Houde, 2005 BCPC 632 , [2005] B.C.J.

No. 2905, the sentencing judge reviewed several cases involving

breach-of-trust frauds or thefts and noted at paragraph 54 the kinds of extreme mitigating circumstances that may give rise to a conditional sentence including prohibitions from employment by professional associations, extreme public humiliation and embarrassment, extreme hardship if jail is imposed, lack of financial benefit, an early guilty plea, personal sacrifices to make a restitution, and health problems suffered by the accused or his or her family.

I consider that to be a helpful but not exhaustive list of mitigating circumstances. [ 26 ] The submissions of the Crown in the case at bar were largely directly to a dissection of the expert medical evidence relied upon by Ms. Ojeda resulting in a submission that her mental health at the time of the offence has not been shown to support a finding of extreme personal mitigating circumstances.

The Crown submits that the evidence is in such conflict over the nature of any mental condition other than the presence of some uncertain degree of depression that it is not possible to conclude even what mental condition may have existed or what role any such condition played in the commission of the thefts. [ 27 ] The Crown relies on R. v. Laskowski , 2015 BCCA 248 , an employee theft case where a sentence of 16 months' imprisonment was upheld.

The submission that the sentencing judge in that case erred in failing to take into account the offender's mental health issues was rejected because the psychiatric evidence before the court, as stated at paragraph 17, did not draw a sufficient causative or contributing link between a psychological disorder or depression and the offences committed. [ 28 ] In the case at bar, Ms. Ojeda relies primarily on the opinions of two experts, firstly, Dr. Sandy Wiseman, a forensic psychologist who has been practicing in Ontario for over 30 years.

He has conducted psychological assessments for the Crown, the defence, and the court and has testified in literally hundreds of cases in addition to having sat as a member of the Ontario Review Board for over 13 years. Secondly, Dr. Lisa Doupe, a general practice physician specializing in forensic psychotherapy and the treatment of high-risk behaviours.

She has been in practice since 1972 and has a very lengthy resume indicating, amongst other achievements, committee work, consulting projects and publications, and her extensive involvement in fields related to workplace health. [ 29 ] Both experts wrote lengthy and comprehensive reports. In respect to whether Ms. Ojeda suffered from any mental health condition that could inform her behaviour at the time of the offence, both answered in the affirmative. Dr.

Wiseman stated that the behaviour leading to the theft was a reflection of a number of interacting enduring factors which he identified as significant depression, personality factors, and situational factors. Dr. Doupe stated that Ms.

Ojeda's pre-existing mental illnesses, including depression and complex post-traumatic stress which went undiagnosed and untreated for most of her life, had significant impact on her brain and cognitive ability ultimately compromising her judgment and were significant factors in her offending. [ 30 ] Notwithstanding the very able submissions of Crown counsel with respect to the differences and distinctions in the medical evidence, I accept the medical opinions and find that there is a significant causative link between Ms. Ojeda's mental health issues and her offending. [ 31 ] In R. v. Hill , [2016] B.C.J.

No. 2306 , a corporate finance director stole approximately $282,000 from his employer over a period of approximately three years. He had previously stolen $250,000 from another employer who had not pursued criminal charges when the accused agreed to repay the amount stolen. In respect of the current offence before the court, the accused had not made any restitution and any likelihood of that being possible appears from the report to have been relatively remote.

The accused did not have a criminal record and pleaded guilty at a relatively early time and had, in the interim, obtained good employment. [ 32 ] On the basis of expert evidence, it was held that he was suffering from bipolar disorder which had been diagnosed, but was not being effectively treated at the time he committed the offence and that there was a causative connection of his mental health illness with his commission of the offence.

The sentencing judge was satisfied that, so long as the offender complied with the treatment program he was then undergoing for his bipolar disorder, there was little risk he would reoffend. [ 33 ] In considering whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and with particular reference to the need for general deterrence, reliance was placed on the similarity to many of the circumstances in Dickson and the comment in Dickson at paragraph 70 which I will quote: It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was a cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment. [ 34 ] In my view, those remarks are also appropriate in the case at bar.

Ms. Ojeda was suffering from a pre-existing mental health condition or illness that contributed to her having committed the offence. She acknowledged responsibility and expressed remorse when initially confronted and has pleaded guilty at an early time. With the cooperation and support of her husband, she has made significant efforts at restitution and is undergoing an appropriate course of medical treatment including both psychotherapeutic and pharmacological measures.

Unlike the situation in Reid , there is in the case at bar no absence of remorse or restitution. [ 35 ] In my view, these mitigating factors considered collectively are sufficiently significant to warrant a conditional sentence. Ms. Ojeda's treatment has progressed well in the almost four years since she offended and, with continued treatment, there is little risk that she will reoffend.

In this regard, it should be noted, as well, that she has been working at a bank and without incident and that she will almost inevitably lose that job and be unable to obtain any job that requires a background check. [ 36 ] Specific deterrence and the safety of the community are not concerns in this case. Although the aggravating circumstances relating to the offence increase the need for general deterrence and denunciation, those objectives can be addressed with the imposition of a longer conditional sentence with punitive conditions. [ 37 ] Ms.

Ojeda, please stand. [ 38 ] I sentence you to imprisonment for two years less one day which you may serve in the community pursuant to a conditional sentence order.

[ 39 ] The mandatory conditions will be read and explained to you by a justice of the peace. In conjunction with one of the mandatory conditions, you are required to report to a supervisor at 275 East Cordova Street here in Vancouver by 4:00 p.m. today and, thereafter, you must report as directed. [ 40 ] I am just going to interrupt myself briefly. Mr. Ejsmont -- [ 41 ] MR. EJSMONT: Yes, Your Honour. [ 42 ] THE COURT: -- the letter I received indicated an address of 1111 Smith Street in Toronto. Was that an example or is that -- [ 43 ] MR. EJSMONT: It was an example, Your Honour, yes. [ 44 ] THE COURT: All right.

What is your client's address? [ 45 ] MR. EJSMONT: [omitted for publication]. [ 46 ] THE COURT: All right. I do not think we need the postal code, but in any event, Mr.

Registrar, hopefully, you got that because I did not get it all, but the condition should read, "You have the permission of the court to reside at that address, 3004 -- sorry, whatever it was in Toronto, Ontario, but you must comply with any administrative requirements in that regard as directed by your supervisor." [ 47 ] Unless you are in transit from British Columbia to your residence in Ontario, for the first eight months of this order, you shall not be outside the grounds of your residence except for medical emergencies unless you have the written permission of your supervisor which may be granted for any reason relating to your employment, health requirements, education, worship, counselling, community work service, volunteer work, and shopping. [ 48 ] For the second eight months of this order, you shall not be outside the grounds of your residence between the hours of 10:00 p.m. and 6:00 a.m. except for medical emergencies unless you have the written permission of your supervisor which may be granted for any reason. [ 49 ] To obtain written permission to be outside of your residence, you must provide such information as your supervisor may request to allow your supervisor to confirm the purpose for which the permission is sought and to confirm your whereabouts. [ 50 ] You must present yourself at the door of your residence at the request of any probation officer, peace officer, to confirm your compliance with the house arrest and curfew provisions of this order. [ 51 ] At the direction of your supervisor, you are to perform 100 hours of community work service in the first 16 months of this order and a further 100 hours of community work service in the last eight months of this order. [ 52 ] Before seeking, obtaining, or continuing any employment or volunteer position that involves having authority over property, money, or valuable security, you must inform the actual or prospective employer or organization of the conviction to which this order relates and you must provide proof of having done so to your supervisor. [ 53 ] You must continue to undergo medical treatment for your diagnosed mental health conditions. [ 54 ] You must provide a copy of this order and the name and telephone number of your supervisor to any medical practitioner involved in such treatment and you shall instruct that medical practitioner to provide such confirmation as your supervisor may reasonably request that you are in treatment for your diagnosed mental health conditions. [ 55 ] You are not to possess or consume alcohol. [ 56 ] You are not to engage in gambling or attend at any casino or other establishment where gambling is permitted. [ 57 ] You are not to have any contact or communication with any person known to you to be an employee of the College of Licenced Practical Nurses of British Columbia, except through counsel acting on your behalf or with the written permission of your supervisor. [ 58 ] Now, those are all the conditions, although if counsel have any submissions on further conditions, I will hear from you in a moment. [ 59 ] I am also going to make an order that you provide a bodily sample for the DNA databank and that is to be arranged through your conditional sentence supervisor. [ 60 ] Further, I will make a restitution order under s. 738 of the Criminal Code .

Now, here, I am not sure what the amount should be. Some amount of restitution has been made already. [ 61 ] MR. EJSMONT: In my discussion with my learned friend about this, I believe we arrived at a joint position which the figure would be the $373,747.72 less the $10,000 already received resulting in $363,747.72. If the sale which is now apparently pending is completed, obviously the amount that would be susceptible to collection would be adjusted. [ 62 ] THE COURT: Fair enough. [ 63 ] MR. EJSMONT: So that gives us some certainty at this point. [ 64 ] THE COURT: Any submission with respect to that? [ 65 ] MR.

FOLLETT: No, Your Honour, on consent.

[ 66 ] THE COURT: All right. So the restitution order, then, will be for the benefit of the College of Licenced Practical Nurses of British Columbia and payable through the clerk of the court here in British Columbia and it will be in the amount of $363,747.72. [ 67 ] The victim surcharge is payable in the normal course. [ 68 ] Now, any comments or submissions with respect to the conditions on the CSO? [ 69 ] MR. EJSMONT: Just one, Your Honour, the question of informing prospective employers of the conviction. I was not quite clear whether that caught her current employer.

So would she have to inform the Royal Bank of the conviction? [ 70 ] THE COURT: Before seeking, obtaining, or continuing is what I said, so. [ 71 ] MR. EJSMONT: Very good, thank you. [ 72 ] MR. FOLLETT: Thank you, Your Honour. [ 73 ] THE COURT: There is nothing else? [ 74 ] MR. FOLLETT: No. [ 75 ] MR. EJSMONT: No, thank you. [ 76 ] THE COURT: Good luck, Ms. Ojeda. [ 77 ] THE ACCUSED: Thank you. [ 78 ] MR. FOLLETT: Thank you, Your Honour. I thank my friend. [ 79 ] THE COURT: And I suppose I should say because I usually do, I am sure Mr.

Ejsmont has canvassed this with you, but presumptively any breach of the conditional sentence order may result in the conditional sentence order being terminated and you having to serve the balance of the sentence in custody. So please keep that in mind going forward. [ 80 ] My thanks to counsel for your very able submissions. [ 81 ] MR. FOLLETT: Thank you, Your Honour. [ 82 ] MR. EJSMONT: Thank you, Your Honour. [ 83 ] THE CLERK: Count 1 is stayed, Your Honour? [ 84 ] MR.

FOLLETT: I would seek to stay Count 1. [REASONS FOR SENTENCE CONCLUDED] CORRIGENDUM - Released September 19, 2017 In my Reasons for Sentence dated August 24, 2017, the following change has been made: [1] On page 12, at paragraph 28, 3 rd sentence, Dr. Ellen Doupe should be Dr. Lisa Doupe. The sentence should now read as follows: [28] Secondly, Dr. Lisa Doupe, a general practice physician specializing in forensic psychotherapy and the treatment of high-risk behaviours.