Her Majesty the Queen - v. -, 2013 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 092 Date: June 13, 2013 Information: 31082265 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Diana Bethke Appearing: Jerome Tholl For the Crown Kerry Chow For the Accused JUDGMENT M.

GORDON , J [ 1 ] Diana Bethke is charged that between the 30 th day of November, A.D. 2000 and the 31 st day of January, A.D. 2011 at or near Moose Jaw, Saskatchewan did by deceit, falsehood or other fraudulent means defraud the Canadian Union of Public Employees, Local 9 of monies in the amount of $178,320.58 by writing fraudulent cheques to herself contrary to s. 380(1) (

a) of the Criminal Code . [ 2 ] Ms. Bethke’s first Court appearance was March 19, 2012 and on September 24, 2012, Ms. Bethke elected Court of Queen’s

Bench judge and jury. At the request of counsel the case proceeded to a case management conference. Counsel for Ms. Bethke advised early on that once the exact amount of the fraud was ascertained, a guilty plea by his client would be forthcoming. On March 6, 2013, the charge was amended by consent to reflect the dollar amount of $178,320.58. At that time as well, by consent, a Notice of Re- election to Provincial Court was filed and a guilty plea entered.

Sentencing submissions were adjourned to May 9, 2013 and a pre- sentence report, including a conditional sentence and an EM assessment, was ordered. [ 3 ] On May 9, 2013, I heard sentencing submissions and briefs were filed by each counsel. Sentencing has been adjourned to June 13, 2013. Facts [ 4 ] The facts are not in dispute and indeed Mr. Chow acknowledged that the facts as outlined in the Crown brief were accurate. Therefore I am taking the liberty of having the facts as presented by the Crown reprinted in this decision. 4.

CUPE Local 9 (“Local 9”) is the local of the Canadian Union of Public Employees that represents City of Moose Jaw workers, Moose Jaw Police Service clerical workers, Palliser Regional Library workers and Moose Jaw Art Gallery workers. 5. Ms. Bethke was a long term employee of the City of Moose Jaw. Ms. Bethke was also a member of the Executive of Local 9 for many years. She became the treasurer over ten years ago and remained the treasurer for the entire period covered by the offence. Ms. Bethke, at times, concurrently filled several different roles with Local 9. 6.

In exchange for her time spent working on union business for Local 9, Ms. Bethke was entitled to a honorarium to cover any wages she missed as a result of conducting union business during her normal work hours. Ms. Bethke would receive payment of this honourarium by way of cheque from Local 9. 7. On occasion, Ms. Bethke would pay for Local 9 expenses out of her own pocket and then be reimbursed by a cheque from Local 9. These expenses included such things as paying the expenses for Christmas parties and buying supplies. 8. All cheques written on the Local 9 bank account required the signature of Ms.

Bethke and the President of Local 9. Ms. Bethke would often have the President sign several blank cheques at one time for the sake of convenience. Ms. Bethke was trusted completely to handle the finances of Local 9. There were no financial statements prepared, no audits and no system of checks and balances to ensure Ms. Bethke properly handled the funds entrusted to her. 9. Beginning on October 12, 2005, Ms. Bethke began to write cheques to herself, on the Local 9 bank account, when she was not entitled to the amount paid by the cheque. This took several different forms.

In some instances, she would write a cheque to herself for the honorarium she was due as a result of her union duties, but would increase the amount to an amount much larger than she was entitled to. In other instances, she would write a cheque to herself to reimburse herself for expenses that she had already reimbursed herself for. On many other occasions, she would simply write a cheque to herself and note on the cheque that it was in relation to the union members’ benefits program when she was not entitled to any payment in relation to that program. 10. Ms.

Bethke’s fraud came to light after an official from CUPE’s national office began making inquiries about Local 9 being substantially behind in the payments it owed to the CUPE national office. The CUPE national office also noticed some other red flags when it came to the finances of Local 9. The CUPE national office began to consider putting Local 9 into administration and taking over the day-to-day operations of Local 9. As a result of that impending step by the CUPE national office, the members of Local 9 decided to hold an election and a new full slate of officers was elected for Local 9 in late 2010. Ms.

Bethke was replaced as treasurer and was no longer on the Executive. 11. The treasurer of Local 9 requested the financial records from Ms. Bethke, but none were forthcoming from her. 12. When the new Executive took over, they discovered the Local 9 bank account contained approximately $23,000.00 but approximately $104,000.00 was owed to the CUPE national office, despite those dues for the national office having all been collected from members of Local 9. 13. In further examining the finances of Local 9, the new Executive discovered numerous cheques had been written to Ms.

Bethke, without authorization, and, as a result, reported this matter to the police for investigation. 14. The investigation uncovered the details of Ms. Bethke’s fraud. Ms. Bethke wrote the first improper cheque to herself on October 12, 2005, in an amount of $1,985.00. The last improper cheque Ms. Bethke wrote to herself was on December 24, 2010, in an amount of $3,730.00. 15. From October 12, 2005 to December 24, 2010, Ms. Bethke wrote herself 60 cheques that she was either partially or wholly not entitled to.

She typically wrote herself one cheque per month over that time period, with some months having no cheques and other months having more than one cheque. The improper amounts on the cheques ranged from $1,500.00 to $3,900.00.

16. The total amount Ms. Bethke took from Local 9, that she was not entitled to, was $178,320.58. 17. A production order was obtained for Ms. Bethke’s personal bank records and two of her credit cards for the time period in question. The cheques from Local 9 were deposited in Ms. Bethke’s personal bank accounts. An examination of Ms. Bethke’s personal bank records, including her ScotiaBank Visa and RBC Visa, does not reveal a pattern of living an extravagant lifestyle during the time period of the fraud. The money was simply co-mingled with her other funds and spent on a monthly basis.

Her bank and credit card statements reflect purchases at mid-range to lower-end retail stores. There is no pattern of interac withdrawals at locations where there is gambling available. 18. During the time period in question, Ms. Bethke’s bank balance was often negative, or very small, and the records available for her two Visa cards indicate they consistently exceeded their limits. There are frequent payments on credit cards such as RBC Visa, ScotiaBank Visa, HBC/Zellers, Sears, Canadian Tire MasterCard and CitiBank.

The money for these payments would not have been available absent the money that was obtained by fraud. 19. Ms. Bethke has no criminal record. Position of the Parties [ 5 ] Both Crown and defence agree that a period of incarceration is in order. Both counsel agree that a conditional sentence option is available to the Court given that this offence occurred prior to the amendments to the Criminal Code .

The Crown submits that a period of 12 to 15 months of actual incarceration in an institution is the appropriate disposition based on the case law and emphasizing the sentencing principles of denunciation and deterrence. [ 6 ] The defence submits that a conditional sentence order pursuant to s. 742.1 of the Criminal Code is appropriate. The defence argues that the sentencing objectives of deterrence and denunciation can be adequately reflected in a community based sentence for this particular individual. Mr. Chow on behalf of Ms. Bethke also stresses that Ms. Bethke will be making full restitution.

Sentencing Submissions of the Crown [ 7 ] The Crown submits that based on s. 718 and s. 718.1 of the Criminal Code and cases from the Saskatchewan Court of Appeal with respect to fraud over $5,000.00 that the objectives of denunciation and deterrence are paramount and must be emphasized in any sentence of fraud when there is a breach of trust involved. R. v. Harding , 2006 SKCA 118 and R. v.

Gopher , 2006 SKCA 5 , are two cases that support this proposition. [ 8 ] The Crown notes the following aggravating factors which must be taken into account when assessing the gravity of the offence and the accused’s responsibility:

a) Ms. Bethke was in a position of trust for many years in relation to Local 9. She abused that position of trust;

b) The amount of money is substantial and this occurred over a five year period;

c) There were numerous transactions, being 60 in total;

d) There was planning and a cover-up by Ms. Bethke and the victims suffered;

e) The local CUPE union was almost taken over by the national CUPE office and their membership fees have increased this year by 50% to make up and recoup this shortfall.

[9] The Crown reviewed various Court of Appeal decisions that the defence takes no issue with and notes these decisions allconclude that a conditional sentence is not appropriate. In addition, the Crown says there are no exceptional circumstances here. Thereis no evidence of any illness of pathological gambling or other addiction. There is no medical information or little information tosubstantiate any problems of a long-standing nature. In addition, the Crown certainly made a point of emphasizing her position of trustand the benefits she received and the detriment to Local 9 members of CUPE.

The Crown noted that there was no pattern of extravagantliving. The stolen monies were co-mingled with Ms. Bethke’s own funds. It is noted that her bank balance was often very small or inthe negative. In addition, her credit card charges do not show extravagant spending but rather charges that were incurred at mid to lower-end retail stores. However, the Crown points out these monies did allow Ms. Bethke to make monthly payments and to acquire goodsthat she might not have without these funds. [10] The Crown points out that R. v. Horvath (1997), (SK CA), 152 Sask.

R. 277, is distinguishable and theCourt of Appeal has commented that it should be confined to its specific facts. The Crown suggests the case of R. v. Bracegirdle, 2004ABCA 252, is very similar to the within case. The amount of fraud was $175,000.00 over a five and one-half year period with 51cheques being altered by Ms. Bracegirdle. She was a long term employee of a charitable society and the theft caused considerablehardship to the society. There was no explanation for how the money had been spent other than to meet the accused’s living expenses.

The Alberta Court of Appeal overturned a conditional sentence and substituted a sentence of two years less a day. [11] The Crown also reviewed decisions from the Court of Queen’s Bench and Provincial Court and noted there are situationswhere a conditional sentence has been imposed. The Crown says these cases are distinguishable as in some there had been substantialrestitution made or there was some explanation for the accused’s course of conduct. However, the Crown noted in two cases inparticular, R. v.

West, 2012 SKPC 145, the accused had stolen $602,000.00 from one employer and $9,000.00 from another, all themoney was used for personal purchases. She had paid back a substantial portion of the money but Judge Kalmakoff found that aconditional sentence would not satisfy the principles of denunciation and deterrence as the offence was motivated by greed. In R. v.Parkes, 2012 SKQB 257, a sentence of three years incarceration was given for a fraud of $173,000.00. The aggravating factors were thatthe victim was elderly and was in a care home operated by the accused. This represented his total life savings. [12]

Section 722 of the Criminal Code provides a mechanism for victims to describe the harm done to or loss suffered by thevictim arising from the commission of the offence. [13] Ryan Nelson on behalf of the Canadian Union of Public Employees, Local 9, Moose Jaw, Saskatchewan read a victim impactstatement. I find that the statement complied with the above noted provisions of the Code. Mr. Nelson, on behalf of all of the membersof CUPE, both past and present, that have been affected by Ms. Bethke’s action focussed his remarks on three areas, firstly the effect onthe union as an organization. Mr.

Nelson states that the CUPE, Local 9, in Moose Jaw was affiliated with other like-minded groupsupon the payment of annual dues. As a result of these not being paid, the relationship with these other organizations, such as CUPESaskatchewan, Moose Jaw District Labour Council, and other CUPE steering committees suffered. [14] Secondly, there were financial implications on the local as well as when the fraud was found in February 2011, there was aconsiderable amount of money owing to Canada Revenue Agency as well as for utilities such as unpaid phone bills and rent.

Of course,when these were paid there would be extra charges and/or interest. In addition, various members of the local have had to take time offwork to meet with the various individuals and law enforcement people with respect to this matter and try to remedy the situation. Certainmembers of the Executive spent well over 100 hours creating and reconstructing seven years of books and then having a forensic audit. There has also been an affect on the members of this local as some of the monies that were taken by Ms. Bethke had been earmarked forhealth and dental benefits to be provided to the members. Finally, Mr.

Nelson stated that every current member of the local is nowpaying 50% more union dues due to a special levy enacted to help the local recover. Finally, Mr. Nelson concluded that this incident hasaffected past and present members and will continue to do so for some time. Sentencing Submissions of the Defence [15] Mr. Chow, on behalf of Diana Bethke submitted that a conditional sentence pursuant to s. 742.1 of the Code is the appropriatesentence in this particular case. Mr. Chow accepts the facts relied on by the Crown as accurate as well as the case law filed by theCrown.

The defence submits that the following justifies a conditional sentence. First of all, it is emphasized that Ms. Bethke has madearrangements and will be able to pay the full amount of restitution. He advises that Ms. Bethke has access to both rural and urbanproperty that she owns jointly with her mother. The rural property is one

section of land and she currently has an offer from the renter tobuy the land for $110,000.00. Mr. Chow indicated that the net proceeds of this sale would be $100,000.00. He noted that Ms. Bethke

allowed the union to obtain a civil judgment in default in the amount of $200,000.00. This judgment has been registered and it may be that Ms. Bethke will make an application to have it set aside or have a judgment entered in the reduced amount of the $178,320.58. It was only on March 6, 2013 when the charge was amended to reflect this amount that the defence knew the actual amount that the Crown was prepared to proceed on. The defence has submitted that once the restitution is made the financial impact of Ms. Bethke’s actions on the union and the union members is substantially less. Mr.

Chow provided further particulars with respect to Ms. Bethke’s serving in numerous positions with the Local 9. First of all, Ms. Bethke is committed to the union movement and has worked hard for the union the past 18 years. She was an elected officer of the local union and also took on other tasks such as secretary-treasurer when there were resignations or vacant positions. On occasion Ms. Bethke was responsible for a maximum of five bargaining units associated with this local. Additionally, Ms.

Bethke organized informational meetings on behalf of the local, Christmas parties and other social functions, bargaining and administering the affairs of this local. [ 16 ] Ms. Bethke has no criminal record. She is 56 years of age. Ms. Bethke, through her counsel, indicates that she is remorseful and embarrassed and disgusted with her criminal behaviour. There are comments in the pre-sentence report such as “she reports she started thinking she was ‘entitled to payment as she was overwhelmed’ with her union responsibilities”.

The Crown has suggested that this attitude and a further comment on page 5 of the pre-sentence report, which states “although Diana reports embarrassment and regret she stated that there was ‘no real financial hardship on a person or even the union’ as a result of her actions”. [ 17 ] The defence suggests that those comments must be taken and looked at in context. Ms. Bethke felt she was alone with a lot of responsibility and perhaps unappreciated and rationalized her actions at the time. Ms. Bethke, since this matter came to light, has barely left her house for the last two years.

In addition, she and her long time partner have separated due to her legal difficulties and the fact that as she puts it in the pre-sentence report she was “acting very strangely” at the time. [ 18 ] Ms. Bethke is also the main caregiver for her mother who presently lives in Pioneer Lodge in Moose Jaw. Her mother suffers from congestive heart failure and has mobility issues and Ms. Bethke assists her as much as possible. [ 19 ] Ms. Bethke suffers from rheumatoid arthritis and fibromyalgia. Ms. Bethke has suffered from anxiety and depression for many years and is currently prescribed an antidepressant.

She was attending personal counselling at Mental Health and Addictions and an anxiety group regularly in Moose Jaw up until the end of 2012. She is currently under the care of a psychiatrist. [ 20 ] Finally Mr. Chow submits Ms. Bethke indicated early on to the Crown that she would plead guilty to the charge once the amount of the fraud was agreed upon. There were amounts that she was entitled to for repayment of items she had purchased for the union. The Crown and the witnesses have been spared the time and expense of a preliminary inquiry as well. [ 21 ] In conclusion Mr.

Chow recognized that sentencing is a very delicate balancing act. He urged this Court to consider all the available sanctions as set out in the Criminal Code and conclude that a community based sentence would be in order by the payment of restitution in a short time, which goes a long way to lessen the loss to the union, that a conditional sentence is the appropriate one. Sentencing Principles [ 22 ] A judge must sentence in accordance with the law as found in the Criminal Code and case law and in particular decisions from our Court of Appeal.

Sections 718 to 718.2 of the Criminal Code state the purpose and principles of sentencing. The objectives of sentencing are to denounce unlawful conduct, deter the offender and others from committing offences, separate the offender from society where necessary, assist in the rehabilitation of the offender, provide reparations for victims and promote a sense of responsibility in the offender. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The sentence should be increased or decreased to reflect aggravating and mitigating factors and be similar for similar offences, offenders and circumstances. All available sanctions other than imprisonment that are reasonable should be considered. [ 23 ]

Section 718.2 of the Criminal Code lists aggravating and mitigating factors which would justify an increase or decrease in a person’s sentence. In this case, 718.2(a)(iii) states that “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim”. This is applicable in this situation. [ 24 ]

Section 742.1 states the requirements that must be met in order for the Court to consider a conditional sentence. These

[24]

Section 742.1 states the requirements that must be met in order for the Court to consider a conditional sentence. Theseinclude the following: - the offence must not be one of those listed as ineligible; - the sentence being considered is less than two years; - the Court must be satisfied that the safety of the community would not be endangered; and - the principles and purposes of sentencing in s. 718 and 718.2 are satisfied. [25] In R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, the Supreme Court of Canada articulated the following principlesin relation to the conditional sentence summarised at paragraph 127:

(1) Because the conditional sentence was enacted to reduce reliance on incarceration and increase the use of restorative justice principlesit should be considered in all eligible cases.

(2) A conditional sentence is intended to be both punitive and rehabilitative. Punitive conditions will generally restrict the offender’sliberty. House arrests should be the norm not the exception.

(3) In determining whether the safety of the community would be endangered by the offender serving his or her sentence in thecommunity, the Court should take into account (

a) the risk of re-offending and (

b) the gravity of the damage that would ensue in theevent of re-offence.

(4) The Court should consider whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing setout in s. 718 to 718.2.

(5) A conditional sentence can provide significant denunciation and deterrence.

(6) A conditional sentence will better achieve the restorative objectives of rehabilitation, reparations to the victim in the community andpromotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

(7) A conditional sentence may be imposed even where there are aggravating circumstances although the need for denunciation anddeterrence will increase in these circumstances. [26] At paragraph 82 in Proulx, Lamer J. stated as follows: This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerablediscretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamentalprinciple of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the“punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposedfor particular crimes.

In M. (C.A.), supra, I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. ... Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred. [27] The only question to be answered is whether Ms. Bethke should serve her term of imprisonment in a provincial institution orjail or in the community pursuant to a conditional sentence order with strict conditions. Case Law

Case Law [ 28 ] There have been many cases that have considered whether conditional sentence orders are appropriate for offenders who have committed fraud and thefts involving a breach of trust. It is clear from the cases referred to by both counsel that denunciation and deterrence are very important principles to be considered and applied when sentencing an offender for fraud charges. [ 29 ] The Crown in its brief referred to several sentencing decisions from the Saskatchewan Court of Appeal in particular. In all these cases the sentence was increased and the Court stated actual incarceration was appropriate.

The Crown also filed a case from the Alberta Court of Appeal namely R. v. Bracegirdle , 2004 ABCA 252 , which it says is very close to the within case. The accused in Bracegirdle was a long time employee of a charitable society and stole over $175,000.00 over a five and a half year period altering 51 cheques and making them payable to herself. The Alberta Court of Appeal overturned a conditional sentence imposed by the sentencing judge and substituted a sentence of two years less a day. [ 30 ] Other cases referred to by the Crown include R. v. Gopher , 2006 SKCA 5 .

In that case the Court of Appeal again overturned a conditional sentence for two individuals who had stolen treaty land entitlement money. One accused had received $263,000.00 and the other $324,000.00. The additional money was provided to their family and friends. Mr. Justice Richards concluded that a period of incarceration of three years was the appropriate sentence. At paragraph 66 he comments as follows: This review of sentencing authorities indicates, not surprisingly, that there is no rigid set of rules which determines when a fraud or breach of trust offence warrants jail or penitentiary time.

It cannot be otherwise given that sentencing decisions must be geared to the specific circumstances of each offender.

Nonetheless, the authorities do clearly reveal a general view that denunciation and deterrence are key objectives in sentencing these types of offences and that substantial frauds by persons in positions of trust will generally attract sentences involving substantial periods of incarceration. [ 31 ] It is clear from the Court of Appeal decisions that the amount of the fraud as well as the fact that s. 718.2 (a)(iii) of the Criminal Code states a breach of trust must be considered an aggravating factor in sentencing.

At paragraph 102 in Proulx , Lamer J. states: Denunciation is the communication of society’s condemnation of the offender’s conduct. Incarceration will usually provide more denunciation from a conditional sentence as conditional sentences are generally more lenient sentences than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of a jail sentence that would ordinarily have been imposed in the circumstances. [ 32 ] At paragraph 107, Lamer J. talks about deterrence as follows: Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer , supra , at p. 36.

The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach , supra , at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 33 ] The Crown very fairly included as well in their material some sentencing decisions from the Provincial Court in Saskatchewan and the Court of Queen’s Bench which granted the community based conditional sentence. [ 34 ] In R. v. Kevin Moulton , 2001 SKQB 82 , Madam Justice Gunn after a thorough analysis of the conditional sentencing

provisions under the Code with particular reference to the Supreme Court of Canada case of R. v. Proulx , supra , finds that a conditional sentence is appropriate for Mr. Moulton. This was a fraud case involving a cattle co-operative. The total amount owing to 36 farmers or victims was $273,255.66. At paragraph 48 Madam Justice Gunn states in part: Sentencing is always difficult, and determining the appropriate sentence in these circumstances is particularly difficult. In my view denunciation and deterrence are the most important criteria to be satisfied.

Kevin Moulton, although not in a position of trust in the strict sense of the word, did abuse the trust of his neighbours and friends, who were vulnerable victims. The program was one from which many members of the community could benefit. That benefit is no longer available to them. Participation in the co-operative, it is clear from some of the victims, was a decision made by many on the basis that they would be participating with people they knew and trusted. Many victims lost money as a result of this fraud. Mr.

Moulton explains his actions on the basis of a depressed market and an effort to keep his operation going. Surely, it can come as no surprise to him that his actions placed huge stresses on the other members of the co-operative who were facing the same market forces, and who had to dispose of their cattle at a loss, not to mention the loss of their deposits to the assurance fund. [ 35 ] At paragraph 49, she goes on to say: I must bear in mind as well that this fraud occurred over a significant period of time and involved many different actions on the part of the accused.

It was not one desperate act, but rather a series of calculated manoeuvres leading to a significant loss. [ 36 ] In the end Madam Justice Gunn states at paragraph 50: I do not disagree with the range of sentence suggested by the Crown. However, I feel that this Court may express the need for denunciation and deterrence through the terms of a conditional sentence order. [ 37 ] The Crown appealed the conditional sentence order and asked the Court of Appeal to consider whether it was consistent with the principles and purposes of sentencing set out in s. 718.2 of the Code .

The Court of Appeal dismissed the appeal stating it could not say the sentencing judge had “erred in principle, failed to consider a relevant factor, over-emphasized an appropriate factor or imposed a sentence that is demonstrably unfit”. The Court of Appeal concluded at paragraph 33 by stating: While I may not have imposed a conditional sentence on the respondent in this case, I am not able to find that the trial judge committed an error in imposing the sentence she did. [ 38 ] I was the sentencing judge in the case of R. v. Hingtgen , 2011 SKPC 67 . Mr.

Hingtgen was charged with theft over an eight year period from at least 15 farmers in the community. While I realize this was not a fraud charge, it still amounted to the accused taking property that did not belong to him, selling it and keeping the proceeds. The defence characterized it as a financial arrangement that went bad but nevertheless each of these individuals were out a significant amount of money. The total amount that formed the subject of a stand alone restitution order was $541,480.00. From the evidence I heard, it is extremely unlikely that the amount in the Hingtgen case will ever be satisfied.

After some deliberation I found that the joint submission put forward by counsel was one that I could follow. In other words, I had no good reason for rejecting the joint submission. The opinions and feelings expressed by the farmers in the Hingtgen case, many who were near retirement and this represented the sum of their retirement income, are similar to the comments by the union representative in this case. Defence counsel in the Hingtgen case also referred to the very similar case of R. v. McNary from Yorkton Queen’s Bench. Mr.

Justice Chicoine in an unreported decision in fairly similar circumstances followed the joint submission of a conditional sentence with house arrest and a stand alone restitution order. Mitigating Circumstances [ 39 ] In considering an appropriate sentence, the aggravating and mitigating factors must be taken into account. I find the following to be mitigating factors:

- no previous criminal record; - indication very early on that a guilty plea would be forthcoming; - once the amount of the fraud had been determined there were some payments that the accused was entitled to be reimbursed for; - no alcohol or drug problems; - educated; - long time employee of the City of Moose Jaw; - remorseful; and - realistic ability and commitment to paying full restitution as soon as possible. [ 40 ] The Crown indicates that the accused by her comments in the pre-sentence report is minimizing her involvement or minimizing the offence.

I accept the representations by defence counsel that this really shows Ms. Bethke’s concern for her actions and is trying to look at them as positively as she can. The pre-sentence report goes on to state that she is embarrassed, disgusted, and she has stayed and confined herself to her own home after the allegation came to light. In addition she has separated voluntarily from her long time partner to avoid any suggestion that he was a participant or in any way involved in her actions. She is assessed as a low risk to re- offend.

The Crown says that this is a meaningless factor as all people in white collar crime or these types of frauds are assessed as low risk. While this may be true, there are certainly situations where people have a criminal record and are not low risk to re-offend. [ 41 ] The report indicates Ms. Bethke is suffering from bouts of depression and has been in counselling and is continuing on that course. The Crown admits there is no indication of Ms. Bethke living an extravagant lifestyle. It appears that these funds over the period in question were co-mingled with her own funds and used to pay bills.

A compassionate person in relation to her family, in particular being the sole family member who assists her aging mother. Prior to her actions that constitute this offence, she had a 15 year exemplary record with the union. She was a committed union member. She has the ability and has taken some steps to be in a position to pay restitution. She is the joint owner of farm land with her mother and her mother agrees to this asset being sold and it would appear approximately $100,000.00 would be available from that sale. There is also the home in Moose Jaw that could be sold, so restitution is a possibility.

Once charged and counsel had been retained, she was fully cooperative with the investigation and this proceeded very quickly through the Court from the time of the charge to the guilty plea. [ 42 ] I find the following to be aggravating factors: - She took advantage of her position of trust with the union. She was a long time city employee and union member and therefore trusted and looked to carry out the union activities, specifically in terms of handling of the financial side.

The failure to make payments to the health plan on behalf of all the employees and failure to remit dues to the national office are particularly serious. - The activity involved a period of approximately 60 transactions over five years. It by necessity involved planning and deception. However it is noted she was left on her own. There were no yearly audits done by any of the union locals nor was she ever contacted by the national office or other entities to which the union owed money. Of course this operated to her advantage.

On the other hand, these checks and balances are in place for a reason and that is to prevent fraud or identify fraudulent activity early on. - The amount of loss is substantial. - There has been no restitution to date. There have been promises but no actual monies have been paid to date. Conclusion [ 43 ] I have concluded that I can consider whether a conditional sentence under s. 742.1 of the Criminal Code is appropriate in the circumstances of this case. This is so as the offence date is prior to the present Safe Street and Communities Act under the Criminal Code .

I am satisfied that neither probation or a penitentiary term is in order and I am satisfied that a period of incarceration is in order. As stated initially the only question in my mind is whether a community based sentence by way of a conditional sentence order is a just and appropriate sanction. The mitigating factors cited above clearly satisfy me that Ms. Bethke would not endanger the safety of the community should she be allowed to serve her sentence in the community.

Is actual incarceration the only suitable way to express a society’s condemnation of her actions and give expression to the principle of deterrence?

[ 44 ] I noted the Moulton case in that it has some similarities to the present case. The individuals involved in the Last Mountain Beef Producers Co-operative consisted of a group of people from the community that people felt they knew and could trust. One victim in that case wrote, and I quote, from paragraph 45 from the Queen’s Bench decision as follows: Mr. Moulton’s actions placed others in difficult financial situations which caused stress to them. One victim wrote: “The financial stress I endured was overwhelming and I have not, to this day, recovered and I am not certain I will”.

Another wrote “I feel degraded and abused that Mr. Moulton could do such a thing to an Association the people relied on and trusted”. [ 45 ] Counsel for Ms. Bethke readily acknowledges that there have been decisions by Courts in Saskatchewan and particularly the Court of Appeal that have determined a conditional sentence for this type of fraud is simply not appropriate. There is no doubt that actual incarceration is appropriate in some cases. One of the facts stressed by the Crown is the amount of the fraud and the fact that no restitution has been paid. I note here Ms. Bethke has no criminal record.

She has been a long time city employee and a dedicated union member. She was obviously respected and trusted by her co-workers given the positions and the degree of responsibility that was given to her by union members. On the other hand of course, she breached this trust and that is an aggravating factor. While I find it somewhat disturbing that Ms. Bethke cannot or has not provided any explanation or rationalization for her actions, I cannot put too much weight on that.

Perhaps it is just curiousity on the part of the rest of us to try to know or understand what makes a person of otherwise good character risk everything for no apparent purpose. Her life is bleak. [ 46 ] As I have commented on previously, the Crown indicated from their search of her bank records and credit cards that the monies taken over this period were co-mingled with her other monies and used to pay her bills and other obligations. There is certainly no indication of a gambling or other addiction problem.

There is no indication of extravagant or luxurious living by excessive travel or purchase of luxury items that were beyond her means. [ 47 ] In my view a conditional sentence can achieve the principles of denunciation and deterrence especially if there are restrictive conditions.

As was noted in Proulx , a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations and a promotion of a sense of responsibility in the offender. [ 48 ] In paragraph 41 of Proulx , the Court notes as follows: A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls. [ 49 ] Violations or a breach of a conditional sentence order need only be proved on a balance of probabilities.

An offender can be ordered to serve the rest of the sentence behind bars. A conditional sentence is not subject to reduction through parole. Therefore if a conditional sentence is granted, the stakes are high for the accused if she does not comply with the terms. [ 50 ] I acknowledge the victim impact statement. There is no sentence that can fully address or compensate for the actions of Ms. Bethke in relation to her misuse of union funds. What happened, happened. It is in the interests of the union and its members to have these monies repaid.

In one sense, the union benefitted from her willingness to take on these responsibilities. I am not in any way suggesting that the union is to be blamed or that this justifies a conditional sentence. I only say this to remind the union that the Court cannot undo the events. The Court must follow the law and the sentencing principles and arrive at an appropriate sentence. [ 51 ] I recognize that there is more than one sentencing alternative that may be equally justifiable in this case. However considering all of the circumstances, I am satisfied that the requirements of a conditional sentence have been met.

I am satisfied that the purposes and principles of sentencing as enunciated in the Criminal Code and applied in the case law can be satisfied with a community based sentence. Therefore under s. 742.1 of the Code , I sentence you to a period of imprisonment to be served in the community under a conditional sentence order. The length of the sentence is two years less one day with the first eight months on electronic monitoring. The order is as follows:

- The mandatory conditions specified in s. 742.3(1) as follows: Keep the peace and be of good behaviour. - Appear before the Court when required to do so by the Court. - Report to the chief supervisor or his delegate immediately after the making of this order and thereafter when required and in the manner directed by the chief supervisor or his or her delegate. - Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or supervisor. - Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. - In addition you shall also live at a residence approved by the supervisor. - Refrain from the consumption of alcohol or illegal non-prescription drugs and submit to breath, blood or urine testing on demand of a peace officer or supervisor. - Refrain from entering any premises where the primary function is the sale of alcohol. - That except for medical and other emergencies, you must abide by a daily curfew and be confined to your residence between the hours of 9:00 p.m. and 7:00 a.m. unless you have the permission of the Court or the prior written permission of the supervisor. - Enrol in the Electronic Monitoring Program and comply with the Electronic Monitoring Program Rules as told to do so by the supervisor for the first eight months of this order. - Come to the door of your approved residence when asked to do so by a police officer or supervisor or designate and permit them entry into your approved residence to check equipment operation. - Present yourself in person to any peace officer or supervisor checking any provisions of this order. - Attend and meaningfully participate in a program for continuation of personal counselling and treatment. - Perform 100 hours of community service work as arranged and directed by and to the satisfaction of the supervisor, community service worker coordinator or designate prior to the expiration of this order. - You must reside at 1407 Spadina Street, Moose Jaw unless granted prior approval in writing by the supervisor to change your address. - In addition there will be a restitution order pursuant to s. 738 of the Criminal Code as follows: You shall pay the sum of $178,320.58 to the Canadian Union of Public Employees, Local 9, 1420 Caribou Street West, Moose Jaw, Saskatchewan S6H 7S9. - The victim surcharge is waived in accordance with s. 737 of the Code . [ 52 ] The Crown did not seek a DNA order. [ 53 ] I express my appreciation to counsel for their assistance in this case. [ 54 ] Dated at the City of Moose Jaw in the Province of Saskatchewan this 13 th day of June, 2013.

M. Gordon, J