R. v. Elliott Date:, 2013 BCPC 270

Citation: R. v. Elliott Date: 20130930 2013 BCPC 0270 File No: 32647 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERNESTINE ELLIOTT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.F. BROOKS Counsel for the Crown: Mark Rankin Counsel for the Defendant: Scott Sheets Place of Hearing: Duncan , B.C. Date of Hearing: August 28, 2013 Date of Judgment: September 30, 2013 INTRODUCTION

[ 1 ] At the conclusion of the trial, Ms. Elliott was convicted that she did: From the 1 st day of May, 2004 to the 30 th day of June, 2007, inclusive, at or near Duncan, in the Province of British Columbia, did commit theft of money, the property of Cowichan Tribes Salmon Enhancement Project, of a value in excess of five thousand dollars ($5,000.00), contrary to

Section 334 (

a) of the Criminal Code. [ 2 ] Ms. Elliott appears now for sentencing and it is acknowledged by both counsel that the facts are of a seriousness that a jail sentence is warranted. The only issue between Crown and Defence is whether that sentence can be served in the community under a conditional sentence order or ought to be served in a jail. [ 3 ] Prior to analyzing that issue it is important to set out the circumstances of the offence and the circumstances of the offender.

CIRCUMSTANCES OF THE OFFENCE [ 4 ] The Cowichan Tribes Salmon Enhancement Project (hereinafter “CTSEP”) is a program primarily funded by the federal government. The annual amount of funding is in the range of $450,000 per year. Its name is descriptive of its function: it is operated by the Cowichan Tribes in order to increase the salmon population in the Cowichan River. It employed approximately six or seven individuals at the time of these events. [ 5 ] Ms. Elliott commenced working for CTSEP in approximately 2003 as a bookkeeper.

Her responsibilities included data entry to the accounting program in place with CTSEP. She was only authorized to issue pay cheques, including her own, and petty cash amounts such as payments for mileage claims. [ 6 ] Approximately one year after commencing working for CTSEP, Ms. Elliott began writing cheques to herself. Over the course of approximately three years she wrote 253 cheques to herself totaling approximately $200,000 none of which she was entitled to. In order to avoid detection, Ms. Elliott would record inflated amounts in the accounting system to be paid out to suppliers of CTSEP.

She would also record payments made to businesses which had, in fact, supplied nothing at all to CTSEP. The actual cheques for the payments recorded were made out to her personally. As she had no authority to sign those cheques she forged the signatures of others. Those cheques could not be located at the time of the discovery of the theft and were only seen as a result of the execution of Production Orders at the relevant financial institutions. I find as a fact that Ms. Elliott destroyed the cancelled cheques made out to herself on an ongoing basis in order to hide her theft. [ 7 ] The thefts by Ms.

Elliott did not stop until she was discovered. That discovery occurred in the following way. In July 2007 it was time for the annual audit. The comptroller, Ms. Dibbs, arranged with the new auditor to attend to the offices of CTSP, referred to as the hatchery. When Ms. Dibbs attempted to match payments to invoices she had trouble finding supporting documents. She and the auditor, Mr. Martinson, found entries for payments to suppliers but the invoices were for much smaller amounts. When contact was made with the bank it was discovered that the cheques they were looking for were made out to Ms. Elliott.

A few days later the cancelled cheques for the month of June were sent to the Cowichan Tribes office and picked up by the auditor. The cheques made out to Ms. Elliott for the month of June 2007 totaled more than $8,000.00. None of those cheques were her pay cheque. Within days, Ms. Elliott was interviewed and then relieved of her duties. [ 8 ] A Victim Impact Statement was provided to the Court which stated that the total theft was $202,993.04. In addition to the cost of a forensic audit ($20,790) there were extensive and uncalculated costs incurred by the Cowichan Tribes to investigate Ms. Elliott’s theft.

CIRCUMSTANCES OF THE OFFENDER [ 9 ] Ms. Elliott was born June 29, 1967 making her forty six of age at sentencing. She was born in Ladysmith and has lived virtually all her life on Vancouver Island. The circumstances of her upbringing are not adequately captured by the word ‘traumatic.’ She watched her mother being beaten by her father. She was subjected to frequent physical and sexual abuse, commencing at age 5, by several family members and caregivers. [ 10 ] Her parents and older siblings are residential school survivors from the school on what was then called Kuper Island. Ms.

Elliott was the first of her twelve siblings not to attend residential school. It was on their return from residential school that Ms. Elliott was sexually abused by her older brothers. One of her brothers has been diagnosed with post traumatic stress disorder. Ms. Elliott reports that her family has used alcohol as a means of coping with their experiences. After misusing alcohol herself Ms. Elliott completed alcohol treatment in the early 1990’s when she would have been in her mid-20s. She reports some alcohol use now but not to excess. None of this background was disputed by the Crown. [ 11 ] Ms.

Elliott left the family home at age 14. She gave birth to her first child at age 16. Nevertheless, she returned to school and completed her grade 12 at age 19. At about that time she met Don Elliott who she was to marry at age 27. While she was a member of the Chemainus (Stz’uminus) band she became a Cowichan Tribes member on her marriage. They have a son (age 14) and a daughter (age 17) both of whom are currently in school. Ms. Elliott returned to her own education and obtained her certificate in Computerized Business from Sprott Shaw Community College.

While she has had other employment, her job with the hatchery was her first stable job. [ 12 ] As to her current social situation, Ms. Elliott describes a healthy relationship with her husband and that he is a hard working man. He works as the manager at the hatchery. The pre-sentence report (PSR) notes that Ms. Elliott has frequent contact with her mother who often resides with her. The report also notes the high regard in which Ms. Elliott is held by those who know her. Her nephew describes Ms. Elliott as a ‘mother figure’ to him and a daily caregiver to his 5 year old daughter.

The nephew’s daughter refers to Ms. Elliott as ‘Grandma.’ The report continues, “Collateral contacts describe Ms. Elliott as being ‘family focused’, an exceptional parent and

a kind and generous individual.” [ 13 ] Ms. Elliott has been active in the Longhouse since age 17. The PSR says, “Collateral contacts describe Ms. Elliott as a valuable member of the Longhouse with extensive knowledge on First Nations culture and Longhouse traditions.” [ 14 ] Bill Rice, a member of the Chemainus band and an uncle of Ms. Elliott testified on her behalf. He has known her since age 18 and has observed ‘her large heart.’ He has watched Ms. Elliott put her family ahead of herself and has seen her keen involvement in the athletic activities of her children.

Over the last two years, he has seen her at the Longhouse at least once a week and he testified to her dedication to the activities of the Longhouse. [ 15 ] She has no criminal record. ISSUE ON SENTENCE [ 16 ] As noted above, the issue for decision is whether the jail sentence which flows from a breach of trust by a theft of approximately $200,000 over a three year period may be served in the community. Specifically, the Crown asks for a jail sentence in the range of 8-12 months with probation to follow and the defence seeks that that sentence be served in the community.

ANALYSIS [ 17 ] Counsel reviewed a significant number of authorities in their submissions. I have reviewed and considered those authorities. Each one serves to illustrate the application of sentencing principles. In crafting an appropriate sentence in this case I do not intend to compare each of the authorities to this case. I intend, however, to structure the analysis that follows, not around the particular facts of each of those authorities, but around the aggravating and mitigating factors surrounding this offence and this offender.

For each, I will attempt to explain how they impact the particular sentence that I intend to impose in this case. I will then review the significance of Ms. Elliott’s status as a first nations person in light of s.718.2 (

e) of the Criminal Code . Finally, reference will be made to other considerations that do not fit neatly as aggravating or mitigating factors. Aggravating factors [ 18 ] Many of the aggravating factors of this case are self evident. [ 19 ] Ms. Elliott was in a position of trust as a bookkeeper. S. 718.2 (a)(iii) of the Criminal Code refers to the abuse of a position of trust as a specific aggravating factor. This factor is particularly troubling in the circumstances of this case. The CTSEP fulfills a valuable social goal and greatly benefits the Cowichan Tribes community and the community as a whole.

The CTSEP is reliant on a positive relationship with the federal government. In order to maintain that positive relationship and continue to be able to pursue the goals of the project (in this case salmon enhancement) the CTSEP must be able to, and must be seen to be able to, competently manage its affairs. The credibility of CTSEP in all its dealings is undercut when a theft of this size for this period of time is carried out. Authorities were cited where particular projects collapsed under the weight of dishonesty of similar magnitude.

Such a collapse would have had widespread negative impacts on innocent individuals and the community as a whole. Fortunately that did not occur in this instance although it must have been as a result of just that: good fortune. [ 20 ] However, it is clear that the fact of a breach of trust involving a significant amount of money does not mandate a jail sentence: R. v. Wilson 2003 BCSC 414 at para. 32 ; R. v. Bunn 2000 SCC 9 ; R. v. Morrison 2012 BCSC 155 at para. 40 . [ 21 ] The thefts occurred over a three year period. On 253 occasions, Ms. Elliott made the decision to take money that was not hers.

Year after year she took very significant amounts of money. She then devoted time and thought to covering her tracks by the use of false entries and the destruction of documentation. The ongoing indifference to those around her which those acts show is staggering. Nor did she come to her senses and stop her thefts over the three year period. She only stopped when she was caught. [ 22 ] There can be no question that these aggravating factors are very significant. Indeed, if there were no other factors to consider the result in this case would inevitably be one of incarceration in a jail facility.

In addition, these aggravating factors are so significant in the facts of this case that they render general deterrence and denunciation the primary goals of the sentence in this case. Those in the community who may think that taking large sums of money when they are in a position of trust will not face the prospect of a lengthy period of jail must be disabused of that thought. Communities simply cannot live together and work together and succeed together when there are those who will steal and expect to go unpunished. Similarly, the behaviour of those who steal the money of others as Ms.

Elliott did must be denounced. Communities can only affirm what makes them strong when they make it clear what behaviour they will not tolerate. [ 23 ] It is because of the particular force of the aggravating factors referred to above that the Crown submits that general deterrence and denunciation can only be served on these facts by a period of incarceration in jail. This submission will be referred to again once all the other factors on sentencing are considered. [ 24 ] As an additional aggravating factor, Crown Counsel stressed the lack of understanding by Ms. Elliott of the wrong done.

He forcefully submitted that the evidence given by Ms. Elliott during the trial amounted to a justification in her own mind for taking the money. It was implicit in the Crown submission that such an attitude required the Court to consider that Ms. Elliott herself required deterrence from further criminal activity. [ 25 ] I am unable to draw such a sweeping inference from the evidence that I heard on the trial. At the trial Ms. Elliott testified to her frame of mind at the time of the allegation, namely up to 2007. I find her statements in the PSR to the same effect.

A great deal of time has passed since these events. She has witnessed a detrimental effect on her marriage from these charges. She is bound to have seen how difficult her behaviour has made her husband’s employment. She cannot have failed to see the stress she has caused to her whole family. Taking into account all that has been written and said about Ms. Elliott, I do not conclude that she today feels justified in what she has done. No intelligent person such as Ms. Elliott, seeing what she has seen all around her, could feel justified. In all the

circumstances, I conclude that Ms. Elliott does not need to be specifically deterred from the dishonest behaviour she exhibited up to2007. Mitigating factors [26] As with the aggravating factors, many of the mitigating factors are obvious. Ms. Elliott has no criminal record. In this case thathas a particular significance. First, in some cases involving dishonesty, the absence of criminal record is used as a springboard to thecommission of the offence. The absence of criminal record can be part and parcel of the ruse used to put oneself in the position tocommit the offence. That was not the case for Ms.

Elliott. [27] Second, her absence of criminal record borders on astonishing when her background is taken into account. Despite thepresence of many stressors that lead to the commission of criminal offences, Ms. Elliott has not until this time committed any offence. The only conclusion to draw is that there is at Ms. Elliott’s core a person who can be a strong person that can withstand pressures tocommit offences. [28] Another mitigating factor is the social milieu within which she resides. Her marriage is a positive support.

Her activities withher grand-niece and within her family are strong supports for her current and future good behaviour. Her commitment to her communitythrough her Longhouse activities illustrates her pro-social background. She has not allowed alcohol to sidetrack her from her activities.She has taken education in the past in order to better herself and enhance her contribution to the community. She has expressed in thePSR an interest in finding other ways to give back to the community.

It must be remembered and appreciated that these positives drawnfrom her social activities are all ones that she has worked hard to develop on her own initiative. She has a significant credit from the wayshe has lived her life upon which she can draw at this time. The accused’s status as a first nations person [29] The Criminal Code provides in s. 718.2(

e) that a sentencing court shall take into account as a principle of sentencing: All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [30] This provision was thoroughly considered by the Supreme Court of Canada in R. v. Gladue (SCC), [1999] 1S.C.R. 688.

It was at that time that the Supreme Court of Canada said that there was a crisis in the Canadian criminal justice systemexhibited by the statistics on the over-representation of aboriginal persons in our jails. [31] Many of the sentencing authorities relied on by the Crown in this case involved first nations persons and, fully aware of thecrisis referred to, engaged the analysis that had been set out in Gladue. None of those authorities, however, took into account the morerecent pronouncement on this issue by the Supreme Court of Canada in R. v. Ipeelee 2012 SCC 13.

It is essential in my view, to reviewwhat the Supreme Court of Canada said in that case and then to apply that reasoning and analysis to Ms. Elliott’s case. [32] The Court in Ipeelee referred to the optimistic note in Gladue that sentencing judges could, with a more restorative approach,avert the crisis referred to. The Court then said (at para. 62): This cautious optimism has not been borne out. In fact, statistics indicate that the overrepresentation and alienation of Aboriginal peoplesin the criminal justice system has only worsened.

In the immediate aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions tocustody increased by 3 percent while non-Aboriginal admissions declined by 22 percent (citations omitted). From 2001 to 2006, therewas an overall decline in prison admissions of 9 percent. During that same time period, Aboriginal admissions to custody increased by 4percent. As a result, the overrepresentation of Aboriginal people in the criminal justice system is worse than ever.

Whereas Aboriginalpersons made up 12 percent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 percent of federaladmissions in 2005. As Professor Rudin asks; “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to thesituation today?” [33] The Court then goes on (at paragraph 73 and thereafter) to state that the background circumstances of an aboriginal offender canimpact the moral culpability of that offender.

To recognize that this is the case is not to provide any sort of automatic reduction insentence to an aboriginal offender but to recognize the degree of responsibility of the particular offender. [34] Applying this method of analysis to Ms. Elliott, it is clear that the remnants of her terrible past have adversely impacted herfunctioning today. While not retreating from his central position, Crown counsel recognized this in his recommendation of a period ofprobation and counseling to follow the sentence of jail. And how can those years and years of tragedy not have followed her to who sheis today?

Ipeelee mandates that this offender’s background be taken into account in reducing the moral blameworthiness of herbehaviour. I conclude that her background reduces the moral blameworthiness of Ms. Elliott. [35] Ipeelee goes on to encourage sentencing judges to take a more restorative approach to sentencing than they have up to this time.

The reason for doing so is phrased in the following way (at paragraph 74): The second set of circumstances – the types of sanctions which may be appropriate – bears not on the degree of culpability of theoffender, but on the effectiveness of the sentence itself. . . .As the RCAP [Royal Commission on Aboriginal Peoples] indicates, at p. 309,the “crushing failure” of the Canadian criminal justice system vis a vis Aboriginal peoples is due to “the fundamentally different worldviews of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the processof achieving justice.” The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communitiesshare the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or

alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. [ 36 ] Applying that analysis to Ms. Elliott’s circumstances is difficult. On the one hand, there can be no suggestion that the Cowichan Tribes are any more tolerant of dishonest behaviour than is any other community. The damage done to them by Ms. Elliott cannot be downplayed.

This is reflected, in part, by the Cowichan Tribes not supporting restorative justice in response to an inquiry by the preparer of the PSR. [ 37 ] On the other hand a representative of the Cowichan Tribes also recommended that part of any sentence include counseling and that a cultural appropriate apology be made along with community service.

A restorative component of any sentence has not been completely rejected. [ 38 ] In my view, the analysis in Ipeelee requires this court to remain focused at all times on the ultimate objective of sentencing, namely, a just, safe and peaceful community and not to presume that incarceration will achieve that end. Other alternatives must always be considered. Other sentencing considerations [ 39 ] Counsel for Ms. Elliott referred to other occurrences subsequent to conviction that, he said, should be considered by the court. He advised that Ms. Elliott received intimidating phone calls after her conviction.

The calls were upsetting enough that she and her family changed their phone number. Counsel also referred to the fact that this case was covered in the media in a way that brought embarrassment and shame on to Ms. Elliott. These facts were not challenged by Crown counsel. Accordingly I accept these facts and take into account that Ms. Elliott, to some extent, has already been punished by her treatment in the community. [ 40 ] Finally, it must be recognized that if Ms. Elliott is sent to jail she will serve that sentence on the lower mainland. There is no jail for women to serve their sentence on Vancouver Island.

If jailed, she would be taken from where she has lived virtually all her life to a place where it will be extremely difficult for her family to visit her. Such a visit would likely require more than one day of travel for her family. Ms. Elliott would be separated from all those ties which support her in her pro-social lifestyle. She would be denied the motivation to rehabilitation which comes from the love and support of family members. Every day would be an excruciating punishment for Ms.

Elliott above and beyond that which would be faced by any male sentenced to jail or any female sentenced in the lower mainland. I am satisfied that, as a matter of law, I am entitled to take this factor into account: Clayton Ruby, Sentencing, (2008) 7 th edition, p. 286-287; Allan Manson, The Law of Sentencing (2001), p. 137. I am also satisfied that this is a significant factor in determining the appropriate sentence for Ms. Elliott.

The jail sentence: in the community or not? [ 41 ] The statutory pre-conditions of a conditional sentence are satisfied in this case in light of the range of sentence sought by the Crown and the acknowledgment that such a sentence for Ms. Elliott would not endanger the safety of the community. The only issue left for determination is whether such a sentence satisfies the principles of sentencing as they apply to the totality of the circumstances of this case. [ 42 ] The principles of general deterrence and denunciation are the most important principles to be applied in this case.

Concluding that, however, does not mandate a sentence served in a jail for Ms. Elliott. All of the factors and circumstances must be taken into account. The analysis must go further. [ 43 ] It is trite to acknowledge that a conditional sentence of jail served in the community may also serve the principles of sentencing of denunciation and general deterrence. This can occur by extending the length of a sentence beyond what would otherwise be imposed.

Given that an actual jail sentence will only partially be served in jail, a conditional sentence, every day of which will be served, can result in a much longer oversight of the individual. General deterrence and denunciation can also be served by the careful use of stringent conditions restricting the liberty of the individual. [ 44 ] However, Crown counsel submitted, as noted above, that the seriousness of the circumstances of this case are such that those principles cannot be served except by an actual jail sentence.

With the greatest of respect for a careful and thoughtful submission, I disagree with that analysis. First, the effect of that analysis in the circumstances of this case would be to focus on the principles of deterrence and denunciation to the exclusion of the other principles of sentencing. The forceful language of Ipeelee would be neutered in the circumstances of this case if the interests of general deterrence and denunciation were given such an effect. Second, the punishment would extend beyond what was fit if Ms.

Elliott were incarcerated on the lower mainland so far from family and friends who would assist in her rehabilitation. Third, the conditions attached to a conditional sentence would achieve restorative goals that would not be achieved if Ms. Elliott were in an institution removed from her community. [ 45 ] In my view, the principles of general deterrence and denunciation, when properly balanced with the other principles of sentencing, can be served by a conditional sentence which is longer than that sought by the Crown and restrictive of Ms. Elliott’s liberty.

The conditions attached to that sentence can serve as notice to anyone of a like mind to commit an offence such as this that there will be significant and extended consequences for such behaviour. CONCLUSION [ 46 ] The sentence of imprisonment to be served in the community must be longer than that suggested by Crown or defence. The sentence that I impose is 18 months. This duration will serve as a much lengthier oversight of Ms. Elliott’s behaviour. [ 47 ] During the first twelve months of that order the terms shall be:

(300) You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You

shall report in person to a Conditional Sentence Supervisor no later than 4:30 September 30, 2013 at 205B Boundary Street, Duncan B.C. and you shall thereafter report as and when directed by your Supervisor and in the manner directed by your Supervisor. You shall remain within British Columbia unless written permission to go outside the jurisdiction is obtained from the court or the Supervisor. You shall notify the court or your Supervisor in advance of any change of name, or address, and promptly notify the court or the Supervisor of any change of employment or occupation;

(303) On first reporting to the Supervisor, you shall inform him/her of your present residential address and phone number;

(304) You shall not change your address or phone number at any time without first obtaining the written consent of the Supervisor;

(309) You are to remain within your residence at all times, except as follows: a.) between the hours of 10:00 am and 2:00 pm on Saturday and Sunday of each week in order to attend to your personal needs; or b.) at any time with the written permission of your Supervisor, but such permission is to be given only for compelling personal, family, employment reasons or to complete community work service hours; or c.) when travelling directly to, or returning directly from where you are completing your community work service hours or your place of employment or while in the course of such community work service hours or employment.

You shall provide the supervisor with details of your employment if requested to do so;

(311) You shall present yourself at the door to your residence when the Supervisor or any Peace Officer attends there for the purpose of determining your compliance with the house arrest conditions of this order;

(312) You shall respond personally and immediately to the telephone when a peace officer of the Supervisor makes a phone call to your residence for the purpose of determining your compliance with the house arrest conditions of this order;

(321) You shall not possess or consume any alcohol or controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act except as prescribed for you by a licensed physician;

(322) You shall not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub or any business from which minors are excluded by the terms of their liquor license;

(334) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by your Supervisor;

(340) Under the direction and supervision of the Supervisor you shall successfully complete 100 hours of community work, which shall be completed at a rate of not less than 10 hours per month. [ 48 ] For the final six months of the order the terms shall be the same except for the replacement of the house arrest term with a curfew and additional hours of community work service. Those terms are as follows:

(308) You shall obey a curfew by being inside of your residence between the hours of 9:00 pm and 6:00 am each day, except as follows: a.) with the written consent of the Supervisor. Such consent is to be given, however, only for compelling personal, family or employment reasons; or b.) when travelling directly to, or returning directly from your place of employment or while in the course of such employment. You shall provide your supervisor with written details of your employment if requested to do so;

(311) You shall present yourself at the door to your residence when the Supervisor or any Peace Officer attends there for the purpose of determining your compliance with the curfew conditions of this order;

(312) You shall respond personally and immediately to the telephone when a peace officer of the Supervisor makes a phone call to your residence for the purpose of determining your compliance with the curfew conditions of this order;

(340) Under the direction and supervision of the Supervisor you shall successfully complete 40 hours of community work, which shall be completed at a rate of not less than 10 hours per month. [ 49 ] The conditional sentence of imprisonment shall be followed by two years of probation on the following conditions:

(200) You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or your Probation Officer in advance of any change of name or address, and promptly notify the court or the Probation Officer of any change of employment or occupation. (201A) Within 48 hours after completion of your conditional sentence you shall report in person to the probation office located at 205B Boundary Street, Duncan B.C and after that you shall report as directed.

(203) When first reporting to the Probation Officer, you shall inform him or her of your residential address and phone number.

(204) You shall not change your address or phone number without first obtaining the written consent of the Probation Officer.

(213) You shall:

a.) attend school regularly and not be absent except in accordance with either a medical certificate or the advance written consent of the Probation Officer; or b.) make reasonable efforts to seek and maintain employment approved by the Probation Officer.

(234) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer.

(240) Under the direction and supervision of the Probation Officer you shall successfully complete 100 hours of community work, which must be completed within the first 12 months of this order. There shall also be an order pursuant to s. 738(1) for restitution in the amount of $23,290 to the benefit of the Cowichan Tribes. There shall also be an order pursuant to s. 738(1) for restitution in the amount of $201,993.04 to the benefit of the Zurich Insurance Company.

Any payments made to the Zurich Insurance Company shall be made only once the restitution order to the Cowichan Tribes is satisfied. [ 50 ] The victim fine surcharge is waived. _______________________ A.F. Brooks Provincial Court Judge