R. v. Delgado, 2017 NSPC 74

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Delgado, 2017 NSPC 74 Date: June 14, 2017 Docket: 2956821 Registry: Dartmouth Between: Her Majesty the Queen v. VERONICA LOUISE DELGADO Decision Judge : The Honourable Frank P. Hoskins Corrected Decision : The text of the original decision has been corrected according to the attached erratum dated July 19, 2019 . Charges: That between the 10th day of September, 2012 and the 12th day of September, 2015 at or near Dartmouth, Nova Scotia did by deceit, falsehood or other fraudulent means, did unlawfully defraud Can-Euro Investments of a sum of money, a total value exceeding $5,000.00, contrary to s. 380(1) (

a) of the Criminal Code . Counsel : Peter Dostal, for the Crown Jonathan Hughes, for the Defence By The Court (Orally) : Introduction [ 1 ] The following is the sentencing decision of Veronica Delgado, who pled guilty to the offence of fraud over $5,0000 which is contrary to s. 380(1) (

a) of the Criminal Code . The offence occurred between September 10, 2012 and September 12, 2015. [ 2 ] The agreed statement of facts reads as follows: Between May 12, 2008, and September 11, 2015, the accused was employed by Can-Euro Investments as the accounts clerk for Horizon Court, an estate consisting of two high-rise and two low-rise rental apartment buildings for a combined total of 480 rental units. She worked there until she was terminated once the index offence was discovered.

The accused worked in Horizon Court’s administrative office where she was in charge of tracking and collecting money from the tenants of the Horizon Court buildings. This included damage deposits, rent deposits, garage and parking fees, storage fees, and numerous other miscellaneous fees. She was also in charge of handling late payments and arrears from tenants. In her position as Accounts Clerk, the accused earned a salary of approximately $39,000.00 per year during this time. There was no record of absenteeism or discipline during her employment. She was a tenant in the building up until her termination.

In late 2015, other staff members noticed a problem with the balancing of the accounting books and called the accused to respond to this issue. In that conversation, she admitted to taking tenants’ money amounting to approximately $40,000.00. She was let go of her job by way of a dismissal letter dated September 25, 2015. Upon further review of the accounting books, it was discovered by staff members that the total verifiable amount missing was $110,157.66 ranging between January 1, 2012 and September 25, 2015.

Records before January 1, 2012 were not easily reviewable as they pre-dated the current electronic accounting system. Of the total verifiable amount missing, it is agreed that $80,000.00 of this amount is attributable to the activities of the accused on a criminal standard of proof. From review of the accounting records, it would appear the accused would take payments from tenants and record them in the ledger but then appropriate the money for herself.

The offending conduct involved misappropriating a variety of types of payments from the tenants, including security deposits, “prorated payment” (which are marginal payments of new tenants who move in before monthly rent is due), rent payments (in the form of cash, cheques and money orders), and other tenant fees. The deficits were hidden by means of a ponzi-like scheme where incoming payments from tenants were used to off-set the losses. On February 5, 2016, she attended the police headquarters at the request of police with her Counsel.

She was interviewed and gave a cautioned statement admitting that she took the money from her ex-employer Can-Euro Investment. She was released on a Promise to Appear and Undertaking. The accused has no prior record. Threshold Issue: Whether a Conditional Sentence is Available [ 3 ] Before I provide my analysis as to what the appropriate sentence is for this offence, and Ms. Delgado, I will deal with the threshold issue of whether a conditional sentence pursuant to. s. 742.1 is available to Ms. Delgado. [ 4 ] The Crown contends that it is not for two reasons.

First, a conditional sentence is not available even though the offence straddles the Criminal Code amendment. Second, even if a conditional sentence was available, it would be insufficient in the circumstances to properly emphasize objectives such as denunciation and deterrence. [ 5 ] The Defence argues that a conditional sentence is available to Ms. Delgado, notwithstanding that the Criminal Code was amended, because of the application of s. 11(

i) of the Charter . The Defence further contends that a conditional sentence can properly emphasize the objectives of denunciation and deterrence. [ 6 ] It should be noted that Ms. Delgado does not challenge any legislation; nor does the Crown claim retrospective application of any Criminal Code provisions. The issue is not one of statutory

interpretation since the

interpretation of each version of s. 742.1 is largely not in dispute. [ 7 ] The dispute in this case lies in the correct temporal application of s. 742.1 of the Criminal Code . Put another way, the issue asks which version of s. 742.1 is to apply to Ms. Delgado in sentencing. [ 8 ]

Section 742.1 currently reads, in part: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; … [ 9 ] This provision prohibits an accused from seeking a conditional sentence for any offence with a maximum penalty of 14 years, such as the offence of fraud over $5,000.00. The accused would, therefore, be ineligible for a conditional sentence under this provision. [ 10 ] However, the wording of s. 742.1 was not always in this form.

On November 20, 2012, parts of the Safe Streets and Communities Act 2012, c. 1 (Bill C-10) came into force, which entirely replaced an older version of s. 742.1 . [ 11 ] Prior to the passing of the Safe Streets and Communities Act , s. 742.1, read in part: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or

an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 12 ] Under this older version of s. 742.1 , an accused charged with fraud over $5,000.00 was eligible for a conditional sentence as long as the circumstances of the offence and offender satisfied the requirements that the appropriate penalty was under two years’ incarceration, that a conditional sentence “would not endanger the safety of the community”, and that the conditional sentence “would be consistent with the fundamental purpose and principles of sentencing”. [ 13 ] The Supreme Court of Canada, in R. v.

Johnson , 2003 SCC 46 , stated, at para. 41: [41] As a general matter, persons accused of criminal conduct are to be charged and sentenced under the criminal law provisions in place at the time that the offence allegedly was committed. The Charter aside, the four respondents convicted of offences committed prior to the 1997 amendments are properly sentenced under the former regime. However, s. 11(

i) of the Charter provides that any person charged with an offence has the right “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”. [ 14 ] This principle is expressed in s. 11(

i) of the Charter , which provides: If found guilty of the offence and if the punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of the lesser punishment. [ 15 ] The parties agree that s.11(

i) of the Charter has application to the case at bar.

Section 742.1 is certainly a form of “punishment” within the meaning of s. 11(i). The case law has found that s. 742.1 amounts to a form of “lesser punishment” than a custodial sentence for the purposes of s. 11(

i) of the Charter (see R. v. Yusuf , 2011 BCSC 626 at para 29 ). Therefore, the temporal application of s. 742.1 must satisfy s. 11(

i) of the Charter . [ 16 ] In the present case, the charging Information alleges an offence (fraud) occurring between September 10, 2012 and September 12, 2015. It is a single count Information . The Safe Streets and Communities Act came into force gradually between August 2012 and November 2012, with the amendment to s. 742.1 – governing the application of conditional sentences - coming into force on November 20, 2012. When is a Crime Committed for the Purposes of s. 11(

i) of the Charter ? [ 17 ] Thus, the first issue to address is determining when a crime is committed for the purposes of s. 11(

i) of the Charter . Position of the Parties [ 18 ] The Crown submits that a conditional sentence is not available despite that the offence straddles the legislative amendment to s. 742.1 . The Crown argues that the balance of the offence occurred during the period when conditional sentences were not available. [ 19 ] However, the Defence contends that Ms. Delgado is entitled to make an application for a conditional sentence because of s. 11(

i) of the Charter . The Defence argues that Ms. Delgado committed the alleged offence before the enactment of the increased penalty. In other words, she was culpable on the single count Information from the moment she committed the earliest of the frauds capable of supporting the charged framed in the Information , as she had committed a fraud before November 20, 2012, and continued to commit fraud until September 2015. The Defence submits that had the Crown proved only one act of fraud, Ms.

Delgado would have been convicted on the Information, as charged, because she had committed the actus reus and mens rea required to support a conviction before November 20, 2012. This is because the number of discreet acts capable of supporting liability for the offence as charged does not alter the fact that the actus reus and mens rea required to support a conviction coexisted as of the first act of fraud. The Competing Authorities: The Meaning of “Time of Commission” [ 20 ] It is trite law that s. 11(

i) of the Charter will apply when offences are committed prior to legislative amendments where the punishment for the offence has been varied. [ 21 ] In R. v. V.I.C. , 2005 SKCA 95 , the Saskatchewan Court of Appeal addressed the issue of whether changes to the Youth Criminal Justice Act, which came into effect on April 1, 2003, applied to a single Information of alleged sexual assaults which occurred over a 14-month period, March 1, 2003 to April 30, 2004. In addressing whether s. 11(

i) of the Charter applied, the Court at para. 11 held: [11] … It applies only where the punishment was varied between the time of the commission of the offence and the time of sentencing. Those acts of sexual assault which occurred during the period April 1, 2003 and April 30, 2004, occurred after the law was changed and, therefore, did not fall within the purview of s. 11(i). This was not a case of application of the law to an offence which occurred before

the legislation came into effect, but of application of the law to an offence which was not complete, and therefore did not occur, until a date on which the legislation was in effect. Accordingly, the trial judge was obliged to consider the Crown application to have the offence designated as a serious violent offence, which he failed to do. [ 22 ] In R. v. Patricio , 2011 QCCQ 5261 , the Court held that the expression “between the time of commission” in s. 11(

i) of the Charter referred to the full completion of the offence. In that case, the time frame of the offence covered a period between August 1, 2004 and February 1, 2005 and straddled an amendment to s. 380(1) (

a) of the Criminal Code that came into effect on September 15, 2004, which increased the maximum penalty for this offence from 10 to 14 years. This amendment rendered the offence ineligible for a discharge. At paras. 22-26, the Court held: [22] The time frame of the offence covers a period between August 1, 2004 and February 1, 2005. It straddles an amendment to section 380(1) (

a) of the Criminal Code , dated September 15, 2004, that modified the maximum penalty for this offence with a maximum of 14 years imprisonment. According to

section 730 of the Criminal Code a discharge cannot be granted for such an offence but is possible if the Court considers that the prior maximum of 10 years applies. … [24] According to the jurisprudence provided by the prosecutor, the expression “between the time of commission” refers to the full completion of the offence. The cases of Thow and V.I.C. are clearly to that effect. Other cases take this for granted without raising the issue. [25] The defence did not provide any jurisprudence to the contrary. [26] The court considers that the fact the time frame of the offence straddles the amendment doesn’t bring into play

section 11(

i) of the Charter since the modification came into effect before the full completion of the offence. [ 23 ] In R. v. Lalonde , 2016 ONCA 923 at para. 11 , Justice Doherty, in delivering the judgment for the Ontario Court of Appeal, commented on the purpose of s. 11(

i) of the Charter . He wrote: [11]

Section 11(

i) of the Charter , like s. 11(

g) and s. 11(h), reflects a constitutional aversion to retrospective criminal legislation. Retrospective criminal laws are viewed as unfair and undermining the rule of law because they effectively change the rules in the middle of the “game” to the detriment of the individual affected by those rules. Fairness and respect for the rule of law require that a person’s maximum exposure to punishment for a criminal act be fixed as of “the time of commission” of the criminal act for which he or she is to be punished: see R. v. K.R.J., 2016 SCC 31 , 337 C.C.C. (3d) 285, at paras. 20-27 . [ 24 ] In considering the issue of when a crime is committed for the purposes of s. 11(

i) of the Charter , Justice Doherty, at para. 17, stated: [17]

Section 11(

i) fixes “the time of commission” of the offence as one of the two relevant points in time to be considered when applying the section. I see nothing in the language of s. 11(i), or the purpose underlying the section, justifying a departure from the plain meaning of the phrase, “the time of commission” of the crime. A crime is committed when culpability attaches. [ 25 ] He then identified two appellate decisions that addressed the issue. In R. v. Pouliot , 2006 QCCA 643 , at para. 4 , the accused was charged with keeping a common bawdy house over a lengthy period of time.

During that timeframe, the penalty for the offence was amended to increase the offender's exposure to forfeiture of property used in the offence. The accused argued that he should be sentenced under the regime that existed at the commencement of the timeframe alleged in the Indictment. The Quebec Court of Appeal rejected that argument. The Court reasoned, at para. 4, that keeping a common bawdy house is a continuing offence and that the accused continued to commit the offence well after the penalty increased.

As a result, the accused was thus not entitled to the benefit of the old property forfeiture regime. [ 26 ] The second appellate case was the decision of the Saskatchewan Court of Appeal in V.I.C. , at para. 11 . After considering the reasoning of these two decisions, Justice Doherty concluded, at paras. 23 to 25: [23] With respect, I cannot agree with Pouliot and V.I .C. While I accept that the offences in both cases continued beyond the enactment of the relevant legislation, I do not agree that the continuation of the offences meant that they were not committed before the enactment of the relevant legislation.

The accused in Pouliot was liable for the offence of keeping a common bawdy house as of the date on which the increased exposure to forfeiture came into effect. Had he been charged on that date, he would have been convicted. [24] Similarly, the accused in V.I.C. committed acts of sexual assault before the enactment of the increased penalty. He was culpable on the single count indictment preferred by the Crown from the moment he committed the earliest of the sexual assaults capable of supporting the charge as framed in the indictment.

Had the Crown proved only that one assault, the accused would have been convicted on the indictment as charged. I do not agree that because the Crown chose to lay a single charge encompassing several discrete acts of sexual assault that occurred over several months, the offence for which the accused was convicted should be viewed as “not complete”, or as if it “did not occur” until the last of the sexual acts occurred.

The number of discrete acts capable of supporting liability for the offence as charged does not alter the fact that the actus reus and mens rea required to support a conviction coexisted as of the first act of sexual assault. [25] Having reviewed the cases, I remain satisfied that the words of s. 11(

i) should be given their plain meaning. Mr. Lalonde committed his crimes at the point in time when he agreed with one or more persons to traffic in cocaine or marihuana, intending to do so. [ 27 ] In my view, Justice Doherty is correct. There is nothing in the language of s. 11(i), or the purpose underlying the section, justifying a departure from the plain meaning of the phrase, “the time of commission” of the crime. A crime is committed when

culpability attaches. An offender is culpable when they have performed the required actus reus with the required mens rea. Criminalculpability exists from that point forward whether the offence is a continuing one or not. Thus, in the case at bar, Ms. Delgado wouldhave been convicted on the Information as charged, because she had committed the actus reus and mens rea required to support aconviction before November 20, 2012.

The number of discreet acts capable of supporting liability for the offence as charged does notalter the fact that the actus reus and mens rea required to support a conviction coexisted as of the first act of fraud. [28] Having considered Justice Doherty’s compelling and persuasive analysis, I fully endorse his reasoning in reaching theconclusion that the words of s. 11(

i) should be given their plain meaning. Therefore, Ms. Delgado is eligible to apply for a conditionalsentence under s. 742.1 of the Criminal Code, because the amendment to the

section does not alter the punishment available for her, asthe continuing offence commenced prior to the coming into force of the Safe and Communities Act. [29] Having determined that Ms. Delgado is eligible to apply for a conditional sentence, I will now proceed to address the issue ofwhat is the appropriate punishment for this offence and offender, Ms. Delgado. The Appropriate Disposition [30] Sentencing is a difficult and challenging task for a judge.

It requires the judge to carefully balance the societal goals ofsentencing against the moral blameworthiness of the offender and the circumstances of the offence, while, at all times, taking intoaccount the needs and current conditions of the community. The formulation of a fit and proper sentence is not a simple task. [31] In accordance with s. 726.2 of the Criminal Code, what follows are my reasons for imposing the sentence that I view as just andappropriate, and fit and proper, for this offender and offence. [32] The Supreme Court of Canada has enunciated the correct approach to sentencing in R. v.

M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327. Further, Parliament has enacted legislation which specifically sets out the purpose and principles ofsentencing. Thus, these sources and the common-law guide courts in determining the proper sentence to impose. [33] As stated, imposing a just and appropriate sentence can be a difficult a task for a judge. However, as difficult as thedetermination of a fit sentence can be, the process has a narrow focus. It aims at imposing a sentence that reflects the circumstances ofthe specific offence and the attributes of the individual offender.

Sentencing is not based on group characteristics, but on the factsrelating to the specific offence and offender as revealed by the evidence adduced in the proceedings. [34] As Doherty J.A., in delivering the judgment of the Ontario Court of Appeal, in R. v. Hamilton, (ON CA),[2004] O.J.

No. 3252, at para. 2, aptly stated: [2] … A sentencing proceeding is also not the forum in which to right perceived societal wrongs, allocate responsibility for criminalconduct as between the offender and society, or “make up” for perceived social injustices by the imposition of sentences that do notreflect the seriousness of the crime. [35] Generally, it is recognized that a fit sentence is the product of the combined effects of the circumstances of the specific offencewith the unique attributes of the specific offender. [36]

Section 718 of the Criminal Code codifies the fundamental purpose and principles of sentencing along with the factors thatshould be considered by a judge in striving to determine a just and appropriate sentence for the offence and offender. [37] Although sentencing is a highly contextual individualized process, the judge must also take into account the nature of theoffence, the victims, and the community. As Lamer, C.J., (as he then was), noted in M. (C.A.), sentencing should not only focus on theindividual, but also on the victim and community.

He stated at para. 92: [92] … It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ... Sentencing is aninherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to somedegree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals willdepend on the needs and current conditions of and in the particular community where the crime occurred. … [38] Similarly, in R. v.

Muller, [1993] 22 B.C.A.C. 194 at paras. 32-33, McEachern, C.J. (as he then was) writing on behalf of theBritish Columbia Court of Appeal, expressed the view: [32] ... that it is often unproductive to approach the sentencing process either at trial or in this court as if absolute priorities can be givento various sentencing principles, such as deterrence, in any particular case. [33] Also, it is unlikely that individual just results can be achieved by the application of formulae in which degrees of importance areattached to specific sentencing factors. Sentencing is an art, not a science.

It must take into account highly variable human behaviourand likely responses to penal sanctions. In some cases, deterrence may be more important than rehabilitation; in others, the opposite willbe true.

Sentencing, in my view, should not be approached as a contest between these two important principles, for the raw material ofsentencing is past and future human behaviour, which is never completely predictable. [39] In view of these observations, it is arguable that case law is only helpful for the limited purpose of ascertaining the range ofsentences imposed on similar offenders for similar offences committed in similar circumstances.

[ 40 ] The purpose of sentencing is achieved by blending the various objectives identified in s. 718(

a) to (f). The proper blending of those objectives depends on the nature of the offence and the circumstances of the offender. Thus, the judge is often faced with the difficult challenge of determining which objectives deserve priority. Indeed, s. 718.1 directs that the sentenced imposed must fit the offence and offender.

Section 718.1 is the codification of the fundamental principle of sentencing - proportionality.

This principle is deeply rooted in notions of fairness and justice. [ 41 ] I have considered the fundamental purpose of sentencing expressed in s. 718 , of the Criminal Code , the fundamental principle as stated in s. 718.1 of the Criminal Code , and the other sentencing principles as set out in 718.2 the of Criminal Code , which stipulate that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or offender. [ 42 ] I am also mindful of the principle of restraint, which underlies the provisions of s. 718 of the Criminal Code . [ 43 ] As stated, s. 718.1 of the Criminal Code directs that the sentence imposed must fit the offence and the offender.

Section 718.1 is the codification of the fundamental principle of sentencing which is the principle of proportionality. [ 44 ] As Doherty J.A., in Hamilton , observed at para. 93 : [93] Fixing a sentence that is consistent with s. 781.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction.

The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account... factors which may accentuate the gravity of the crime cannot blind the trial judge to factors mitigating personal responsibility.

Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed. [ 45 ] While the paramount sentencing objectives in the present case are denunciation and deterrence, I must not lose sight of the prospect of rehabilitation. [ 46 ] Given that sentencing is a highly contextual and individualized process, the Court must impose a sentence that addresses the two elements of proportionality. That is the Court must consider the circumstances of the offence and offender, Ms. Delgado.

The Court must fashion a disposition from among the limited options available that take both sides of the proportionality inquiry into account. [ 47 ] Even after a review of the cases, in an effort to find similar cases, with similar offenders, charged with similar offences, Ms. Delgado’s case is clearly distinguishable.

Perhaps this exercise is, as Lamer J., stated, “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction”. ( M. (C.A.) , para. 92 ) [ 48 ] In assessing the issue of what is the appropriate and just disposition for this offence and Ms. Delgado, I have carefully considered and reflected on the following:

a) The circumstances surrounding the commission of the offence and Ms. Delgado;

b) The relevant Criminal Code provisions, including ss. 718 , 718.1 , 718.2 , and, 742 ;

c) The viva voce evidence of Ms. Elizabeth Stephen, Clinical Addiction Therapist;

d) The submissions of counsel, including the submitted case law;

e) The letters of support; and

f) The Pre-Sentence Report dated October 21, 2016. The Personal Circumstances Surrounding the Offender, Ms. Delgado [ 49 ] Ms. Delgado is 60 years old. She comes before the Court with an unblemished record. She has no prior criminal history. She is a person of previous good character. As reported in the Pre-Sentence Report (PSR), Ms. Delgado is the daughter of Harry and Eleanor Doherty. Ms. Delgado reported that she has an excellent relationship with her mother, noting that they have daily contact. [ 50 ] In discussing her formative years, Ms.

Delgado stated that her family was adversely affected by her father’s alcoholism and abusive nature. She reported that her parents separated when she was 17 years old. While Ms. Delgado reported to the author of the PSR that there were no outside agency involvements with her family, she noted that she was the victim of physical abuse by her ex-husband, and reported that her uncle had sexually abused her when she was between ages of 5 and 13. She stated that some members of her family had a history of substance abuse and alcoholism. [ 51 ] Ms.

Delgado advised the author of the PSR that she left her family home when she was 17, to work at a bank and live on her own. She reported that she was married for 23 years and this union resulted in the birth of one of her two daughters. The marriage ended because of her husband’s abusive behaviour. She married Joe Delgado in 2013 after sponsoring his immigration from Columbia. They separated in 2016. [ 52 ] Ms. Delgado’s daughter, Crystal Doherty, described her mother as caring, and wonderful mother, hardworking, and always there for the family. Ms.

Doherty stressed that she was completely in shock when she heard about the offence. Ms. Doherty added that her mother should continue counselling.

[ 53 ] Ms. Delgado reported that she earned her grade 11 business diploma from Dartmouth High School. [ 54 ] Ms. Delgado advised the author of the PSR that she has been employed full-time at Tim Horton’s for nine months at the time of the interview for the report. Ms. Delgado’s previous employment was at Can-Euro Investments where she was a Leasing Agent from May 2008 to September 2015. [ 55 ] Ms. Delgado reported that she had no health concerns at the time of the interview for the report. She does not consume drugs or alcohol.

She informed the author of the PSR that she used to gamble by playing video lottery terminals. She noted that she stopped gambling one year ago (from the date of the interview). She has attended counselling for addictions and counselling pertaining to being abused. She expressed that the sessions were beneficial. She believes that she could benefit from continued counselling and employment. [ 56 ] Ms. Elizabeth Stephen, Clinical Addictions Therapist, reported to the author of the PSR that she had worked with Ms. Delgado for a period of one year and stated that Ms.

Delgado has “tuned her life around, she has stopped gambling, accepted responsibility, addressed issues, and is rebuilding her life. She is smart and proactive about treatment.” [ 57 ] Ms. Delgado reported that she is not currently a member of any community groups. She has never done any community volunteer work. She indicated that she never played sports, although she enjoys skating and swimming. She prefers to read in her free time. [ 58 ] The author of the PSR noted that Ms. Delgado reported for the interview as requested and presented in a pleasant and cooperative manner.

She appeared to have an average level of maturity, and presented in an open manner. She appeared to make her best effort to answer interview questions to the best of her ability, and appeared to take the interview process seriously. [ 59 ] In respect to the offence, Ms. Delgado accepted full responsibility for her actions. She stated she took the money to gamble. She realized that she was digging a hole deeper and deeper.

She stressed that she was remorseful for her behaviour. [ 60 ] The author concluded the PSR by noting that in the event the Court deems a community disposition to be a suitable part of sentencing options for Ms. Delgado, she may benefit from the condition to report to a probation officer as directed. She may also benefit from the condition to continue counselling and to maintain employment. The Evidence of Ms. Elizabeth Stephen, Clinical Therapist [ 61 ] Ms. Elizabeth Stephen is a Clinical Therapist with Mental Health and Addictions Program at the Nova Scotia Health Authority.

At the hearing, she was qualified as an expert able to provide opinion evidence with respect to the diagnosis, prognosis, and treatment of gambling addictions. [ 62 ] Ms. Stephen is an experienced clinical therapist.

She has eighteen years’ experience with addictions, and specializes in gambling disorders. [ 63 ] She explained that in the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the designation of pathological gambling is changed from an impulse control disorder to a behaviour addiction and is grouped with “Addictions and Related Disorders” thereby acknowledging the neuroscience research which clearly establishes that gambling produces changes in the brain similar to drug addiction. [ 64 ] Ms. Stephen is of the opinion that Ms.

Delgado met the DSM-5 criteria for a persistent and severe Gambling Disorder when she began treatment in September 2015. She stressed that Ms. Delgado has been a severe and persistent gambler for a few years. She would gamble every day after work. Ms. Delgado is currently in sustained remission after more than a year of not gambling. She has received treatment which included: education about the highly addictive nature of Video Lottery Terminals (VLTs), relapse prevention, limiting access to money, understanding the issues which underlie harmful coping strategies, and developing healthy coping skills.

Impact on the Victim [ 65 ] While no Victim Impact Statement was filed with the Court, an e-mail was presented. After reviewing the e-mail, which was not in the prescribed regulated form, it states: Mr. Peter Dostal, Please see below our victim statement. This crime has had a significant impact on our company, our staff and clients and it continues to cause stress and challenges within the team. Financially the loss of more than $100,000.00 was a major blow to the company. [ 66 ] The parties agreed that the loss to the victim is $80,000.00 for the purposes of this sentencing.

The e-mail further states: . . . to the company, as a result it has significantly impacted our ability to support our clients and improve our business. We had to spend additional time and money, as it took months to trace, discover and analyze the various methods of fraud and deception to account for the missing funds. We lost that valuable time and resources which should have gone towards improving the company and not wasting and researching this theft. It will take years of the company and the staff to recover from this loss.

Our team was devastated by this person’s actions, but still the betrayal runs deep within. It has been a very stressful year, if justice is served this will hopefully see ease the mental burden. It is hard to understand that often times crimes against companies are not punished with the strength of law as other similar crimes, it seems that the punishment for these crimes are often significantly less than the punishment or loss we the victims suffer. This

is very frustrating because it is hardly the turn for future crimes against anyone, the likely that any funds can be recovered is probablyminimal so without a strong sentence we are not left with much peace. [67] I have ignored some of the comments because they are not relevant. However, it should be noted that I have considered the factthe Ms. Delgado’s former employer suffered a loss of $80,000 which is a significant lost. I am also mindful that Ms. Delgado breached aposition of trust in committing the offence. Analysis [68] In the present case, a conditional sentence is an option that is not precluded by any of the relevant statutory provisions. [69]

Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditionalsentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [70] It should be stressed that no offences are excluded from the conditional sentencing regime except those with a minimum term ofimprisonment. [71] In the present case, a penitentiary sentence is not necessary nor is a suspended sentence with probationary measures appropriate.

In fact, having determined that the appropriate range of sentence is a term of imprisonment of less than two years, I now must considerwhether it is appropriate for Ms. Delgado to serve her sentence in the community. In other words, the first two pre-conditions are not animpediment for consideration of a conditional sentence. It comes down to whether or not it would be consistent with the fundamentalpurpose and principles of sentencing. [72] I am mindful of the requirement in s. 742.1(

b) of the Criminal Code. That is the judge must be satisfied that the safety of thecommunity would not be endangered by the offender serving his or her sentence in the community. This is a condition precedent to theimposition of a conditional sentence, but not the primary consideration in determining whether a conditional sentence is appropriate. [73] In Proulx, 2000 SCC 5, Lamer C.J. addressed the issue of how courts should evaluate danger to the community.

He expressedhis views, at para. 69, in these terms: [69] In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community,two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue inthe event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there isalways some risk that an offender may re-offend.

If the judge thinks this risk is minimal, the gravity of the damage that could followwere the offender [page102] to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending willbe offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [74] In making this determination, I must consider the risk posed by Ms. Delgado, not the broader risk of whether the imposition of aconditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining generalrespect for the law.

Thus, the factors that I have taken into account are:

a) The risk of Ms. Delgado re-offending; and

b) The gravity of the damage that could ensue in the event of re-offence. The Risk of Ms. Delgado Re-offending [75] With regard to the risk of re-offending, the Supreme Court Of Canada made the following observations at paras. 70-72 inProulx: [70] A variety of factors will be relevant in assessing the risk of re-offence. In Brady [R. v.

Brady (1998), (SCC), 121C.C.C. (3d) 449], at paras. 117-27, Fraser C.J.A. suggested that consideration be given to whether the offender has previously compliedwith court orders and, more generally, to whether the offender has a criminal record that suggests that the offender will not abide by theconditional sentence. Rousseau-Houle J.A. in Maheu [R. v.

Maheu, (1997) (QC CA), 116 C.C.C. (3d) 361 (C.A.)], atp. 374 C.C.C. enumerated additional factors which may be of relevance: [TRANSLATION] ... 1) the nature of the offence, 2) the relevant circumstances of the offence, which can put in issue prior andsubsequent incidents, 3) the degree of participation of the accused, 4) the relationship of the accused with the victim, 5) the profile of theaccused, that is, his [or her] occupation, lifestyle, criminal record, family situation, mental state, 6) his [or her] conduct following thecommission of the offence, 7) the danger which the interim release of the accused represents for the community, notably that part of thecommunity affected by the matter. [71] This list is instructive, but should not be considered exhaustive.

The risk that a particular offender poses to the community must be

assessed in each case, on its own facts. Moreover, the factors outlined above should not be applied mechanically. ... [72] The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence. [ 76 ] I do not find that there is a risk that Ms. Delgado will re-offend. There is insufficient evidence in her past to warrant such a finding.

She comes before the court as an adult first offender, which suggests that this offence was out of character for her. It appears to have been an isolated incident in her life. As stressed by Ms. Elizabeth Stephen, Clinical Addictions Therapist, Ms. Delgado in one year has “tuned her life around, stopped gambling, accepted responsibility, addressed issues, and is smart and proactive about treatment”. She added that Ms. Delgado is rebuilding her life. [ 77 ] It should be stressed that in the present case, it is significant factor that Ms.

Delgado has been involved in counselling and/or treatment for a significant period of time which has repressed her need to gamble. Gravity of the Damage in the Event of Re-offence [ 78 ] With regard to the gravity of the damage in the event of re-offending, the Supreme Court of Canada in Proulx recognized that, particularly in the case of violent offenders, a small risk of very harmful future crime may warrant a conclusion that the prerequisite is not met.

At para. 74, Lamer C.J. commented: [74] Once the judge finds that the risk of recidivism is minimal, the second factor to consider is the gravity of the potential damage in case of re-offence. Particularly in the case of violent offenders, a small risk of very harmful future crime may well warrant a conclusion that the prerequisite is not met: see Brady , supra , at para. 63 . [ 79 ] I realize that consideration of the risk posed by Ms. Delgado should include the risk of any criminal activity.

It is not solely limited to the risk of physical or psychological harm to individuals. [ 80 ] With respect to the gravity of the damage that could ensue in the event of re-offence, there is always some risk of re-offending. The risk of re-offending can never be completely eliminated, but a conditional sentence with stringent conditions can reduce the risk to an acceptable level that will adequately protect the community. Consistent with Fundamental Principles of Sentencing [ 81 ] As emphasized in these reasons, denunciation and deterrence must be given recognition in this case.

However, it is my view that a custodial sentence is not the only sentence that respects these principles.

As discussed, I recognize that a conditional sentence can provide significant denunciation and deterrence, and generally, the more serious the offence the longer and more onerous the conditional sentence should be. [ 82 ] Once the prerequisites of s. 742.1 are satisfied, I must give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 83 ] As mentioned, the Supreme Court of Canada recognized that a conditional sentence can provide significant denunciation and deterrence. [ 84 ] Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. [ 85 ] Essentially, the Crown’s position in this specific case, is that because denunciation and deterrence are so pressing a custodial disposition is warranted. [ 86 ] Generally speaking, it is recognized that a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. [ 87 ] Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. [ 88 ] Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved.

However, a conditional sentence may provide sufficient denunciation and deterrence even in cases where restorative objectives are less important, depending on the nature of the conditions imposed, duration of the sentence, and circumstances of both the offender and the community in which the conditional sentence is to be served. [ 89 ] A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. [ 90 ] I am also mindful that no party is under a burden of proof to establish that a conditional sentence is appropriate or not in the circumstances.

However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.

A criterion that is implicit in the regime as a whole given that the offender will be under the scrutiny of a conditional sentencesupervisor throughout and the efficacy of the sentence depends on the offender’s amenability to this supervision, it follows that thesentencing court must also be satisfied that the offender will be amendable to supervision. Position of the Parties [91] The position of the Crown is that a custodial sentence of nine months followed by 18 months’ probation, is an appropriate andjust disposition.

The Crown contends that this recommendation accounts for the seriousness of the offence and the circumstances of theoffender. The Crown submits that the impact was grave given the size of the loss involved. The scheme continued over a period of twoyears and involved some degree of sophistication only came to an end after being caught. [92] The Crown also seeks a stand-alone restitution order pursuant to s. 738 of the Criminal Code, in the amount of $80,000 payableto Can- Euro.

Lastly, the Crown is asking for a discretionary DNA Order. [93] The Defence contends that an 18 month term of imprisonment served in the community under a conditional sentence order,followed by a one year probation period, is an appropriate and just disposition for the offence and offender. The Defence contends that aconditional sentence order with appropriate liberty restrictions, followed by probation will be more than sufficient to satisfy the purposeand principles of sentencing, as the paramount considerations are denunciation and deterrence. [94] Furthermore, the Defence submits that Ms.

Delgado is a first-time offender at the age of 60. She took responsibility at a veryearly stage of the proceedings, thus saving the time and expense of a trial. Lastly, she is genuinely attempting to lead a pro-social lifemoving forward and has the necessary support from her family to accomplish that goal. [95] Having given the matter careful consideration, I am reminded that the purpose of sentencing is to impose “just sanctions”. A“just sanction” is one that is deserved.

A fit sentence in that context is one that is to commensurate with the gravity of the offence andthe moral blameworthiness of the offender. [96] In Proulx, Chief Justice Lamer repeated that principle, at para. 82, wherein he stated: [82] … [p]roportionality requires an examination of the specific circumstances of both the offender and the offence so that the“punishment fits the crime”. Disparity in sentencing for similar offences is a natural consequence of the fact the sentence must fit notonly the offence but also the offender. [97] In R. v.

Priest, (ON CA), [1996] 30 O.R. (3d) 538, at para. 26, the Ontario Court of Appeal expressed theview that proportionality insures that an individual is not sacrificed “for sake of the common good”. [98] An appropriate or reasonable disposition will depend on the circumstances of the case in the context of all relevantconsiderations which includes not only the personal circumstances of the offender and the degree of responsibility of the offender for theoffence, but also the gravity of the offence itself. [99] As stated, the principle of restraint underlies the provisions of s. 718 of the Criminal Code, and must be considered, especiallyin respect to first offenders, such as Ms.

Delgado. It should be noted I am mindful that as the gravity of the offence become moreserious, this mitigating effect decreases. However, even in the most serious offences, courts have been sensitive to the principle ofrestraint in cases involving first offenders.

Similarly, the Ontario Court of Appeal in Priest, at para. 23 held: [23] Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court thata first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purposes of general deterrence. [100] I am mindful that the paramount sentencing objectives at work in the present case are denunciation and deterrence.

That said,since I am sentencing a first offender, I must not lose sight of the prospect of rehabilitation. [101] As stated, given that sentencing is highly contextual and an individualized process, the Court must impose a sentence thataddresses the two elements of proportionality. That is, the circumstances of the offence and the circumstances of the offender. Thereby,the Court must reach a sentence that fits not only the offence, but also the offender.

The sentencing judge must fashion a dispositionfrom among the limited options available which take both sides of the proportionality inquiry into account. [102] The Court must also consider whether a conditional sentence would be consistent with the fundamental purpose and principles ofsentencing in ss. 718 to 718.2 of the Criminal Code. It is here where the Crown stresses that a conditional sentence would beinconsistent with the fundamental purpose and principles of sentencing. [103] In cases of fraud involving a breach of trust, denunciation and deterrence are the primary factors to be considered.

Incarcerationwill generally provide more denunciation or condemnation than a conditional sentence, although a conditional sentence can alsosignificantly denounce the offending behaviour: (Proulx, para. 102.) Similarly, incarceration may provide more deterrence, but aconditional sentence can serve as a general and specific deterrent. While the amount stolen in this case is not insignificant, I would notcharacterize this fraud as “large scale”, instead, as the Crown Attorney, Mr.

Dostal, at p. 3 of his brief, appropriately and fairlycharacterized it, “as a scheme that continued over a period of two years, involving some degree of sophistication”. [104] While denunciation and deterrence are the primary factors to be considered in this case, they are not to be considered at theexclusion of rehabilitation. Indeed, Ms. Delgado’s history and personal circumstances suggest there ought to be a rehabilitativecomponent to any sentence imposed. This is supported by the PSR, and the evidence of Ms. Stephen, the Clinical Therapist.

Ms.Delgado has begun to take steps toward her rehabilitation by engaging in personal counseling and treatment, and is willing to continue.

[105] Ms. Delgado is not opposed to the imposition of a stand-alone restitution order in amount of $80,000.00. Her counsel, Mr.Hughes, has suggested that she understands and accepts the implications of a stand-alone restitution order. It might be parentheticallynoted that the need to make reparations does not necessarily preclude a sentence of incarceration, as a restitution order under s. 738 of theCriminal Code would bind Ms.

Delgado after her release from custody. [106] As previously emphasized, the principle of parity requires that the sentencing court consider similar sentences imposed on similaroffenders for similar offences committed in similar circumstances. Thus, a review of following cases is instructive as they provide therelevant principles and factors that should be considered in the determination of a just and appropriate disposition for both the offenceand Ms. Delgado. Gambling Cases [107] I accept and find that during the commission of the offence Ms. Delgado was suffering from a persistent and severe GamblingDisorder.

While the Crown acknowledges that gambling was a key motivation for the offence, the Crown stresses that, at most, it is anexplanation for the offence and shows an absence of an aggravating factor, such as pure greed. In emphasizing this point, the Crownrelies on the case of R. v. Holmes, a decision of the Alberta Court of Appeal. In that case, the offender was a bank manager in a smallcommunity and defrauded her employer over $100,000.00 over a period of a year and a half. The offender relied on a gamblingaddiction to argue for a conditional sentence, which the sentencing judge ordered.

The Court of Appeal rejected the notion thatgambling mitigated the penalty stating at para. 7: [7] This Court has consistently held, as have other courts, that, in the absence of truly exceptional circumstances, an individual guilty ofembezzlement should go to jail. See, for example, R. v. John (R.C.), supra, and R. v. Wyffels (M.) and Oliphant (L.L.) (1995), 1995ABCA 492 , 178 A.R. 132.

Some possible exceptional circumstances were discussed by Côté J.A. in the John case at p. 239: One can always imagine circumstances of grave illness, stress, duress, small amounts of money, encouragement and other bizarrecircumstances (such as maybe mental problems) which would be exceptional circumstances that would justify a judge in not giving jailin a case of embezzlement or other theft by someone in a position of trust. In R. v.

McIvor, supra, this Court said: In our view, an addiction to or an obsession with gambling is neither an exceptional circumstance justifying the imposition of a non-custodial sentence nor a mitigating factor warranting a sentence of less than what would otherwise be fit and proper. Similarly, neitheraddiction to alcohol nor to drugs is recognized as an exceptional circumstance or a mitigating factor in cases of embezzlement.

Thesentencing judge erred in principle in finding that the respondent’s addiction to gambling constituted an exceptional circumstance. [108] In Holmes, the Court of Appeal ultimately ordered a sentence of nine months’ incarceration followed by probation. [109] In Nova Scotia, fraud cases have led to custodial sentences and conditional sentences, where the breach of trust fraud has beensignificant.

In order to get a sense of how the courts dealt with that issue, I will first address the cases which specifically involvedoffenders suffering from a pathological gambling addiction. [110] The Nova Scotia Court of Appeal, in R. v. Rizzeto, upheld the imposition of a suspended sentence of two years, coupled withprobation conditions, which included that the offender refrain absolutely from any form of gambling. At the time of sentencing, theoffender was 55 years of age and for many years had been a compulsive gambler. [111] In R. v.

Bambury, 2001 NSSC 73 Justice Cacchione considered the effects of a gambling addiction on a police officer whocommitted the offence of fraud while on duty in an attempt to obtain money for his gambling addiction. Mr. Bambury had been a policeofficer for 11 years. Mr. Bambury was 36 years old, and had been married for nine years with one child. He had a grade 12 educationtogether with one year of university courses. He had no prior criminal record. Mr. Bambury was fired from the police force as a resultof the charge. He was also forced to declare bankruptcy as a result of his gambling addiction. Mr.

Bambury accepted full responsibilityfor his actions and was remorseful. He intended to repay the victim the balance of the monies owing to him. Mr. Bambury hadundergone a treatment program for his addiction. Mr. Bambury argued that a conditional sentence and a period of probation wereappropriate. The Crown argued that there should be a period of incarceration, but was not opposed to that period being served in thecommunity. Mr. Bambury was sentenced to a 12 month conditional sentence followed by probation for two years. [112] In reaching that decision, Justice Cacchione considered the evidence of Ms.

Elizabeth Stephens, the Clinical Therapist, who dealtwith Mr. Bambury at that time. After considering the totality of the evidence adduced in that case, Justice Cacchione concluded thatthere was no doubt that the offence in which Mr. Bambury committed was directly related to his gambling addiction. Justice Cacchionealso referenced two reports in his decision.

At para. 19, he references the first report, entitled, Final Report – Convenience Gaming andSocial Impacts in Nova Scotia, which was prepared in 1999, for the Alcohol and Gaming Authority, the authors of the report describepathological gamblers as being: High frequency and excessive gamblers who have difficulty controlling their gambling expenditures. They are not yet emotionallydependent on gambling, but they are harmfully involved in it, either because they crave “the rush” or because gambling has become asanctuary from boredom, loneliness, work and social anxieties.

They have a vestige of control over their gambling but they are gamblinglonger, with more money than planned, and finding it harder and harder to set limits on time and spending.

They are at an earlysequential stage, moving along a continuum of gambling use which, if left unchecked, could result in chasing, dissociation, blackouts andwithdrawals....They continue to play, trying endlessly to recoup their losses with no apparent regard for the consequences, such asfinancial ruin, reduced productivity, disruptive family life, reduction of previous interests and leisure activities and possible involvementin illegal projects... Even when not gambling, the pathological gambler is often preoccupied with thoughts about gambling.

Theirbehavior(sic) has become compulsive and addictive, driven by overpowering and uncontrollable cravings and impulses to gamble...“pathological gambling is chronic and progressive” and is not unlike other addictions involving alcohol and other drugs.

[113] Justice Cacchione later refers to a report, at para. 20, prepared by the Gambling Authority, which describes the history of VLTsand their impact. It stated as follows: They are currently available in neighbourhood bars, taverns, licensed lounges, restaurants, and service clubs. For most residents, videolottery venues are within a five minute driving radius. Play is simple, fast, and straightforward requiring little skill or pre-knowledge ofthe game. This allows for instant results and returns.

The atmosphere of play is casual, friendly and competition consists of “beating themachine”, not outwitting other players. Play, however, can be performed alone, or carried out in the company of others. It fits easily intothe informal environment of enjoying a drink, meeting with friends, and just winding down and relaxing. No dress codes prevail. Videolottery terminal play tends to be more passive than table games or bingo...video lottery machines actually play the numbers and facilitateeither socialization activities or alternatively allow players to withdraw and interact primarily with the terminal.

Play tends to becontinuously available, limited only by the hours of business. Betting is low stakes, but small wagers are constantly made and they canadd up to considerable expenditures when compared to other more time restricted forms of gaming such as bingo or lottery draws. [114] After acknowledging the impact of VLTs have made in the community, he turned his attention to the adverse impact that VLTsand Mr. Bambury’s addiction to them, has had on Mr. Bambury. [115] Justice Cacchione’s comments about the effectiveness of general deterrence is apposite.

He wrote, at para. 27: [27] With respect to general deterrence I find it difficult to see how anyone in the same position as Mr. Bambury, that is being apathological gambler, could be deterred by anything this Court or any other Court can do. I am sure that a pathological gambler, if he orshe were to hear that Mr. Bambury had been incarcerated for 20 years, that that would not stop the pathological gambler from continuingwith gambling. I think that point was made clearly this morning by Mr. Bambury's testimony.

All he thought about day and night, onduty, off duty, whenever, was getting money so that he could gamble. The primary thought was gambling. The secondary thought washow do I get the money to gamble. [116] He further commented, at para. 28: [28] That gambling addiction will impact upon sentencing considerations can be seen from various cases in this province. I quote TheQueen v. Rizzetto (1983), (NS CA), 59 N.S.R. (2d) 132 as well as The Queen v. Landry, [1997] N.S.J. No. 508 andThe Queen v. Wilson [1999] N.S.J. No. 476. [117] Justice Cacchione concluded that an addiction to gambling can be a mitigating factor.

He quoted several cases in support of thatproposition, including Horvath, a decision of the Saskatchewan Court of Appeal. At paras. 30 to 31, he observed: [30] In R. v. Horvath, and I will refer to that case because it really does have some very good principles stated in the body of thedecision. In Horvath the accused pled guilty to several counts of fraud and theft of money from two banks where she was employed. Shewas 36 years old and a pathological gambler. She used the proceeds of her frauds to gamble some more.

She defrauded one bank ofalmost $200,000.00 and then she forged her husband’s signature in order to obtain another $25,000.00 in a line of credit from a secondfinancial institution. She was sentenced to two years less a day conditional sentence to be served in the community. Chief Justice Baydastated at paragraph 41: Perhaps the factor that carries most weight in assessing the gravity of the offences in this particular case is the one that generated thoseoffences.

The offences were the products of a distorted mind - a mind seriously diseased by a disorder now recognized by the medicalcommunity as a mental disorder. The acts committed at the command of that mind were not acts of free choice in the same sense as arethe acts of free choice of a normal mind. A pathological gambler does not have the same power of control over his or her acts as onewho does not suffer from that complex disease.

Accordingly, where those acts constitute criminal offences, the moral culpability - moralblameworthiness - and responsibility are not of the same order as they would be in those cases where the mind is not so affected. [31] Further on at paragraph 44 the Chief Justice states: ...Common sense tells us the best way to prevent a pathological gambler from committing offences designed to raise money that will beused to feed a potent gambling addiction is to emasculate the addiction by curing it or where no cure is available, by providing long-termcare.

Putting a pathological gambler in jail for a short period is not a cure. Nor does it provide the necessary long-term care. On theother hand, a condition that requires the offender to participate in gambling addiction treatment, programming and counselling - such asthe first additional condition in the conditional sentence order in the present case - is a much more effective preventative measure andone much more likely to secure the good conduct of the offender. [118] Justice Cacchione further stated, at para. 32: [32] In the Queen v. Mitchell, [1996] A.J. No. 1176 (QL) (Alta. Prov.

Crt.) Provincial Court Judge Van de Veen was dealing with anaccused who had stolen approximately $5,500.00 from her employer over a 16 month period. The accused was also addicted to videolottery terminal gambling. She had admitted the offence and had taken steps to deal with her addiction. A conditional sentence of ninemonths and probation for two years was imposed on the 60 year old offender with no prior record. At paragraphs 98 to 100 Judge Vande Veen states: ...Her crime was motivated by an addiction to video lottery terminal gambling, an addiction for which she has sought treatment.

Judgingfrom her unblemished past, the accused would not likely be before these courts at all except for the increased availability of video lotteryterminals which has recently resulted in these courts seeing many vulnerable people involved in criminal activity whose motivation fortheir offences is their unfortunate addiction to video lottery terminal gambling. This recent influx of individuals before these courts doesnot include people who have frequented casinos or searched out gambling opportunities by going to Las Vegas or other known gamblingcentres.

They are often ordinary people with no prior criminal involvement, who appear unaware of the risks which accompany their useof video lottery terminal machines initially and who unexpectedly find themselves addicted to video lottery terminal gambling. Whileour society is well aware of the risk of addiction presented by alcohol and drugs, the addiction to gambling and in particular to videolottery terming gambling, is not something we have had historical experience with until recently. It is therefore less well understood and

the threat of addiction is not appreciated by the public generally, and in particular by those persons to whom it poses the greatest risk. [ 119 ] Justice Cacchione concluded, at para. 33, that: [33] In the present case I am satisfied that the offender would not have involved himself in the criminal activity presently before this Court had it not been for his pathological gambling addiction. Apart from this addiction and the consequences which led to his involvement in this offence, Mr. Bambury was an honest and law-abiding member of the community.

In fact he was a police officer sworn to uphold the laws of this country. Some people may feel that because he was in a position of authority he should be dealt with more harshly. Should this path be taken it would completely disregard the reason for the commission of this offence, that is his pathological gambling addiction. [ 120 ] In R. v. Wilson, 2012 NSPC 40 Judge Ross of this Court sentenced Mr. Wilson to a custodial sentence of nine months, followed by a period of probation for 18 months.

In that case, the offender pleaded guilty to defrauding the Province of Nova Scotia, breach of trust, and causing the Province to act on forged documents. Mr. Wilson was a former MLA who defrauded the Province of $60,995.00 by submitting false expense claims. Reports indicated that the offender had a pathological gambling addiction and had spent the funds on gambling. The Crown sought a sentence of at least 12 months’ imprisonment. The offender suggested that a two-year conditional sentence was appropriate. [ 121 ] In reaching his decision, Judge Ross raised the issue of pathological gambling.

He asked, “Does it matter?” “Should it matter?” “If so, in what way and to what extent?” In addressing these questions, he made the following apposite observations: [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 these days. This can tend to strip it of its moral content. There’s a tendency to pathologize sadness into depression etc. The Diagnostic and Statistical Manual has grown almost exponentially over the years. There is some general skepticism about pathologies and again I think it’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 “bad things happen to good people.” I certainly don’t adopt that terminology and certainly Dr. Bloom doesn’t either as will be seen when I turn to his report. Phrasing things that way tends to disassociate the person from the behaviour. It’s as though gambling were contracted like 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 the pathology 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. But the question is, is the factor so outside the person’s self-control, self-discipline, that it diminishes their responsibility for it, makes them less culpable? Nobody is claiming that gambling makes Mr. Wilson innocent, and he is not himself. But this is the difficult and vexing issue here. [26] One might analogize with other forms of addiction.

There is always a danger in analogies and I recognize that, but two very common addictions that are raised in court are alcoholism and drug addiction. In those cases, and in this, the habits themselves are unsavory, the conduct itself is worthy of censure of some sort. Being continually drunk is something that should be discouraged by society. This kind of gambling is not something anybody would want to see. In itself it is worthy of censure of some sort. Mr. Wilson himself recognized this 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 Courts have had to ask in other cases, to what extent does drug addiction mitigate trafficking? Selling coke to support a cocaine addiction? To what extent does alcoholism mitigate drinking and driving? A person might have a drinking habit but do you get behind a wheel of a car and maybe kill somebody? And to what extent does gambling addiction mitigate stealing from an employer? Or in this case the taxpayer?

And to what extent does it mitigate breach of a public trust? [ 122 ] While Judge Ross seems to have exercised proper skepticism in dealing with the issues he raised regarding the relevancy and probity of a gambling addiction, he did attribute some reduction to general deterrence due to the gambling problem. In doing so, he recognized the importance of denunciation in the sentencing calculus. [ 123 ] In reaching the decision to impose a custodial disposition rather than a conditional sentence, Judge Ross clearly considered the serious breach of trust by Mr. Wilson in his position as an MLA.

He stated, at para. 56: [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. [ 124 ] It seems from this passage Judge Ross may have considered a lengthy conditional sentence, but for Mr. Wilson’s significant position of trust that he held as an MLA. Further, it is also seems that Judge Ross was persuaded to reduce the length of the custodial sentence because of Mr. Wilson’s gambling addiction. [ 125 ] Another similar case is the R. v . Salikin a decision of the Saskatchewan Provincial Court. In that case, the offender was the administrator for the Village of Mortlach.

She had several duties including receiving payments for water bills and making deposits including deposits for the post office. She was the sole employee. She devised a system using the four copies of the water bill, by taking payments and stamping “copy one” that was mailed to homeowners “paid”. She would destroy the second and third copy of the

water bill that were in the ledger box and copy number four was filed away. She would not include the cash payment for the water bill inher deposits, and instead kept a substantial portion. She would also receive funds for the post office account, although she did not run thepost office herself. She would replace the post office account monies with cash and cheques from the water bill payments to the postoffice account and then keep the post office money.

Then she would purchase a post office money order with her own personal chequeand substitute it with the village money. [126] In June 2009, the offender quit her job at the village. She stated in the Pre- Sentence Report that she could not live with herselfany longer. She left so the temptation to steal was no longer present. [127] In January 2010, the new administrator noted irregularities with the water bill payments. On further investigation, she found herown past payments for water bills had not been recorded as received.

An auditor was hired to review the period time period in question.The auditor found that a substantial amount of money was missing. The offender admitted to stealing $65,000.00. [128] The investigation ascertained that the money order purchased by the accused was being sent to a trustee in bankruptcy under aconsumer proposal in bankruptcy. Other withdrawals showed monies paid to the Casino and Heritage Inn for gambling. [129] In R. v.

Naugler, 2011 NSPC 68 Judge Derrick provided a thorough review of several cases where conditional sentences havebeen imposed in breach of trust cases, and where they were not; at paras. 50 to 57, she wrote: [50] It is common for judges in breach of trust cases to reject the option of a conditional sentence on the basis that such a sentence is notconsistent with the principles of denunciation and deterrence. The courts in Alberta seem to be particularly hardline in this regard, (seefor example, R. v. Miles, 2011 ABCA 133 , 2011 A.B.C.A. 133; R. v. Stirling, [2010] A.J. No. 1297 (C.A.); R. v. Westerson,[2008] A.J.

No. 1047 (Alta. P.C.); R. v. Toews, [2007] A.J. No. 944 (Alta. P.C.); R. v. Bracegirdle, 2004 ABCA 252 , [2004]A.J. No. 827 (Alta. C.A.)), but they are not alone. (see, for example, R. v. Lamoureux, [2011] P.E.I.J. No. 6 (S.C.); R. v. Williams, (ON SC), [2007] O.J. No. 1604 (Ont. S.C.J.); R. v. Korol, [2007] B.C.J. No. 2719 (B.C.S.C.); R. v. Coxall, [2006] B.C.J.No. 107 (B.C.P.C.); R. v. Reid, 2004 YKCA 4 , [2004] Y.J. No. 3 (Y.T.C.A.); R. v. Stewart, [2002] B.C.J. No. 2456 (B.C.S.C.);R. v. Stoutley, 2002 CarswellOnt 7759 (O.C.J.); R. v. Sequin, [1997] O.J. No. 5439 (Gen.

Div.)) Moral blameworthiness in breach oftrust cases is seen as being high and jail sentences have been imposed even where the offender has accepted responsibility and startedpaying restitution. [51] In Nova Scotia, fraud convictions have led to sentences of incarceration and conditional sentences. (see, for example, R. v.Ferguson, [1999] N.S.J. No. 481 (P.C.) -- conditional sentence; R. v. Matheson, [2001] N.S.J. No. 195 (S.C.) – conditional sentence; R.v. Decoff, [2000] N.S.J. No. 224 (S.C.) – conditional sentence; R. v. Trask, [2005] N.S.J.

No. 561 (P.C.) -- conditional sentence of twoyears less a day, joint recommendation; R. v. Pottie, [2003] N.S.J. No. 543 (S.C.) – conditional sentence; R. v. Hill, [1997] N.S.J. No.236 (C.A.) 12 months incarceration upheld on appeal; R. v. Teresa Cox-Kubas, unreported decision of MacDougall, P.C.J., November22, 2005 -- 12 months incarceration) [52] Conditional sentences have been ordered in cases where the breach of trust fraud has been very significant. In R. v.

Ferguson, forexample, the offender defrauded his employer between September 1995 and April 1998 of $390,000 consisting of bogus salary andincreased pension contributions. Hundreds of premeditated fraudulent transactions were involved. The company was left with a verysignificant shortfall after Mr. Ferguson declared bankruptcy. Prospects for further recovery beyond what the trustee in bankruptcy wasable to collect were found to be dim. (Ferguson, paragraph 5) Mr.

Ferguson’s theft from his employer fueled unrestrained spending: atthe time of his bankruptcy he had $470,000 in debt of which $220,000 was on credit cards. A conditional sentence of eighteen monthswas imposed on the basis that "the imposition of appropriately harsh and meaningful conditions will serve both the rehabilitation of Mr.Ferguson and send a message of deterrence to Mr.

Ferguson and others.” (Ferguson, paragraph 18) [53] The Crown in Ferguson had been looking for a three year penitentiary term to satisfy the sentencing imperatives of denunciationand deterrence. (Ferguson, paragraph 3) The judge's decision to impose a conditional sentence was not appealed. [54] The Matheson case involved a lawyer who pleaded guilty to stealing over $117,000 of clients’ money. The offences werecommitted over a significant period of time and involved planning and premeditation. The grave nature of the breaches of trust wasnoted. Mr.

Matheson’s remorse, lack of criminal record and his guilty plea were all considered to be mitigating factors. The SupremeCourt of Canada de

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