R. v. McCook Date:, 2015 BCPC 1

Citation: R. v. McCook Date: 20150122 2015 BCPC 0001 File No: 36745 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THERESA MARGARET McCOOK REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: J. Bird Counsel for the Defendant: F. Fatt Place of Hearing: Prince George , B.C. Date of Hearing: September 19, 2014 Date of Judgment: January 22, 2015

INTRODUCTION [ 1 ] The Defendant, Theresa Margaret McCook (Ms. McCook), has pleaded guilty on Information 36745 on a charge that she, from the 1st day of January 2009 to the 31st day of May, 2010 inclusive, at or near Prince George in the Province of British Columbia, did commit theft of money, the property of Kwadacha Nation, of a value in excess of five thousand dollars ($5,000.00), contrary to

section 334 (

a) of the Criminal Code (the Code ). [ 2 ] In her position as the Executive Director for the Kwadacha Nation over the time period set out in the Information, Ms. McCook stole $724,570.40 by diverting money paid by the Federal Government (the Government) to the Kwadacha Nation for a variety of programs and services that she applied for but were never offered. SENTENCING POSITIONS [ 3 ] The Crown submits that an appropriate sentence is a period of incarceration of 3.5 to 4 years in a federal penitentiary.

The Crown submits that a Conditional Sentence Order is not appropriate in this case. [ 4 ] The Crown also submits that a restitution order in the amount of $724,570.40 payable to the Kwadacha Nation pursuant to s. 738(1) (

a) of the Code would also be appropriate. [ 5 ] The Defence submits an appropriate sentence would be a Conditional Sentence Order of two years less one day. The Defence also request that if a restitution order is made that it be made in an amount that Ms. McCook could reasonably be expected to pay within a reasonable time. CIRCUMSTANCES OF THE OFFENCE [ 6 ] With the kind agreement of both counsel, the

summary of the circumstances of the offence rely in part on the Crown’s written argument. [ 7 ] The Kwadacha Nation is located on the Finlay River approximately 80 km north of the northern reach of Williston Lake and approximately 570 km northwest of Prince George. It was formerly called Fort Ware. The Kwadacha Nation operates two offices; one in Kwadacha and a second in Prince George. [ 8 ] Ms. McCook was an employee of the Kwadacha Nation for approximately eight years. She was the Housing Director for a number of years before being promoted to the position of Executive Director.

While in the position of Executive Director, Ms. McCook reported to the Kwadacha Nation Chief, Donald VanSomer. [ 9 ] In the course of her duties as the Executive Director, Ms. McCook was responsible for the management and payment of monies received through Government funding and grants for a variety of programs and services provided by the Kwadacha Nation to its members. The Kwadacha Nation frequently engaged facilitators, consultants and others who provided a variety of goods and services on a contract basis. [ 10 ] Between January 2009 and May 2010, Ms.

McCook fraudulently obtained money by drafting invoices for programs and services that were not provided and subsequently retained the monies provided by the Government. In all, Ms. McCook drafted $724,570.40 in invoices that were paid to: Vanessa Carpenter, Geraldine Tashoots, Dan Cresswell, William McGillivray, Mark McCook, Mason Abou, and Jerry Murray in the following amounts:

a) Ms. Carpenter: 18 invoices and bank transactions totaling $153,227.00;

b) Ms. Tashoots: 19 invoices and bank transactions totaling $150,625.00;

c) Mr. Cresswell: 13 invoices and bank transactions totaling $102,432.00;

d) Mr. McGillivray: 10 invoices and bank transactions totaling$39,550.00;

e) Mr. McCook: 37 invoices and bank transactions totaling $247,026.90;

f) Mr. Abou: 6 invoices and bank transactions totaling $26,709.50;

g) Mr. Murray: no invoice and a bank transaction totaling $5,000.00. [ 11 ] To carry out the thefts, Ms. McCook remitted invoices to the Government for certain programs and services for the Kwadacha Nation that never occurred..

These programs included such things as workshops on substance abuse, teen suicide prevention, women and violence, health and social development projects, consultations for the general community and specific target groups, community social activities, youth camps and other outdoor activities and education, facilities improvements, travel and office expenses, and animal products for cultural activities. [ 12 ] Payment for such services was by a cheque made out directly to the service provider from the Government. Ms. McCook could not ask that the cheque be made out to her.

They had to be made out to the person that supposedly provided the service. [ 13 ] Ms. McCook would provide the name of an acquaintance or relative as the person who provided the service to the Kwadacha Nation. Those individuals were initially not aware that Ms. McCook was using their names in this scheme. Ms. McCook would then

receive a cheque made out to her acquaintance or relative. She could not cash the cheque because it not made out to her, and it would look suspicious if it was discovered that she cashed a cheque made out to a service provider. [ 14 ] Ms. McCook would take the cheque to the named payee and ask them to cash the cheque and give her the proceeds (or deposit the cheque into their own bank account and give Ms. McCook their cheque). These individuals were normally given a portion of the money for doing this favour. [ 15 ] Ms. McCook told them a false story as to why she needed them to cash the cheques.

She told them that she had money in a trust account. The money was her own personal money and had nothing to do with the finances of the Kwadacha Nation. She said this trust money came from government compensation relating to the Williston Dam Project. Her compensation was put into trust and she needed a second person in order to access the money. The acquaintance or relative would cash the cheque which was made out to them and give the cash (or their own personal cheque) to Ms. McCook. Those seven individuals were led to believe that they were helping out Ms.

McCook with her personal finances. [ 16 ] In each case, Ms. McCook’s acquaintance or relative who was the purported service provider of the service was not involved in providing any services. None of the programs took place and none of the services were provided. The acquaintance or relative did not know that they were purportedly being paid for providing these services. [ 17 ] Ms. McCook and Mr. VanSomer normally worked out of the Kwadacha Nation’s Prince George office. Ms. Elaine Sinclair also worked there under the direction of Ms. McCook and processed the cheques authorized by her. [ 18 ] Ms.

Sinclair became suspicious of some cheques because of the amounts and how often they appeared. In April 2010, Ms. Sinclair intentionally left a cheque made payable to “Geraldine Tashoots” in the amount of $10,000.00 on her desk in such a way that she believed it would be noticed by Mr. VanSomer. Ms. Sinclair felt uncomfortable challenging Ms. McCook because she was in a subordinate position. [ 19 ] Mr. VanSomer noticed the cheque on Ms. Sinclair’s desk. He did not recognize the name of Geraldine Tashoots as a person who provided services to the Kwadacha Nation, so he asked Ms. McCook about the cheque. Ms.

McCook explained that Ms. Tashoots was unable to travel and that is why Mr. VanSomer was not familiar with her. This explanation left Mr. VanSomer with an unsettled feeling. [ 20 ] An external audit was simultaneously taking place at the Kwadacha Nation’s Prince George office and Mr. VanSomer asked the auditors to include Ms. Tashoots’ payment. Mr. VanSomer then asked Ms. McCook for supporting documentation regarding the transaction. Ms. McCook immediately took a leave of absence from her position. [ 21 ] The auditors discovered numerous questionable invoices involving Ms.

McCook which were brought to the attention of Mr. VanSomer. On September 10, 2010, Mr. VanSomer and Kwadacha Nation Council members held a meeting with Ms. McCook who had returned from her leave of absence. During the meeting Ms. McCook admitted that she had stolen funds from the Kwadacha Nation. A criminal investigation commenced soon after. MS. MCCOOK'S CIRCUMSTANCES [ 22 ] Ms. McCook's personal circumstances, both historical and present, were obtained from the Pre-Sentence Report, the Gladue Report and Defence counsel submissions. Younger Years [ 23 ] Ms.

McCook was born on February 23, 1963, in Iskut, BC to a Tahltan mother and the Sekani father. She was the only daughter among five siblings. [ 24 ] During her growing up years Ms. McCook's mother did not drink. However her father and her elder brothers were heavy drinkers and she was regularly exposed to alcohol abuse and interpersonal violence. Her father stopped drinking in 1977 and things improved somewhat although her older brothers continued their alcohol abuse. [ 25 ] As a child she was sexually abused by an adolescent neighbour but did not disclose that abuse until recently. [ 26 ] Ms.

McCook attended a Catholic Church run day school in Iskut for ten years and later in life obtained her high school equivalency. While at the day school Ms. McCook was harshly physically disciplined by the nuns for speaking her own language and for expressing traditional aboriginal beliefs. [ 27 ] Ms. McCook stateed that although she was raised in Iskut she was never accepted there because her father was Sekani and people from Kwadacha were not accepted in the Iskut community. [ 28 ] When she was 15 years old, Ms. McCook tried to commit suicide by consuming a bottle of drugs but was hospitalized and recovered.

She said she did that because she was not accepted in the Iskut community. Employment History [ 29 ] During the course of her adult life Ms. McCook has taken additional education to become qualified in areas such as a school administration, housing management and project management. [ 30 ] In the 1990’s she obtained employment as the Education Coordinator and later Education Manager for the Iskut Band. In 1997 she was appointed to the Iskut Band Council but she resigned in 2002 to apply for a position with the Kwadacha Nation where she started working in 2003.

She was later promoted to the Executive Director's position and remained there until her criminal behaviour

was discovered. [ 31 ] Since her arrest she has held employment at the health clinic in Kwadacha and started a home based cake decorating business. She also carries on traditional hide tanning and beadwork and sells the finished products to supplement her income. Family Situation [ 32 ] In 1981 Ms. McCook began a relationship, which lasted until 1986 when she left her partner due to violence and infidelity. They continued to try to reconcile until 1989 when the separation became permanent. They had three children together. [ 33 ] Ms.

McCook met her present husband, Mark McCook, in 1990 and they resided in a common-law relationship until their marriage in 2004. They have three children together. [ 34 ] Most of her children now live outside her residence but many continue to reside in the Kwadacha area. Her 16 year old son and five year old grandson reside with her and her husband. [ 35 ] Other members of her family, including many of her grandchildren, regularly attend her residence. Ms.

McCook spends considerable time teaching the grandchildren the Tahltan language and many traditional cultural practices. [ 36 ] She has the support of her adult daughters who she sees regularly. Her husband has shown little sympathy or compassion for Ms. McCook's present situation, advising her that it is her problem to deal with. [ 37 ] Ms. McCook says that in the last several years she has isolated herself from the Kwadacha community because of her shame and has occasionally contemplated suicide but that she goes out onto the land to reconnect when she feels that way.

USE OF THE STOLEN FUNDS [ 38 ] With the various positions she held at both the Iskut Band and the Kwadacha Nation Ms. McCook was required to travel frequently. [ 39 ] During her frequent trips away from Iskut and Kwadacha in the course of her employment, Ms. McCook became acquainted with casino gambling. She describes her initial encounters as being casual for entertainment only but she soon became fascinated with the sights, lights and sounds of the casinos and the thrill of winning. [ 40 ] In approximately 2009 Ms. McCook started to fall into debt from her gambling, living from payday to payday.

She started to borrow money first from payday loan companies, then from friends and eventually from loan sharks.

It was at that time that she initiated the scheme to steal money from the Kwadacha Nation rationalizing that behaviour that she was only "borrowing" the money and would replace it when she had a big win; an event that did not occur prior to being found out. [ 41 ] She also described turning to gambling to help her cope with everything she was going through in her life including the death of her mother and an older sibling, as well as an affair that her husband was engaged in. [ 42 ] Soon after her brother's death she realized that gambling was a coping mechanism and she stopped gambling in 2010 after she was confronted about her stealing from the Kwadacha Nation. [ 43 ] There was no suggestion that Ms.

McCook utilized the stolen funds to enjoy an extravagant lifestyle. The money was spent to fuel her addiction. [ 44 ] In 2011 Ms. McCook went to the Poundmakers Lodge in Alberta for approximately three weeks but left before the program was concluded because it focused on alcohol and drug addictions and she did not see it assisting her with her gambling behaviour.

STATEMENTS AND REPORTS Victim Statement [ 45 ] As an alternative to a victim impact statement, the Chief and Council of the Kwadacha Nation directed a letter dated January 13, 2012, to the investigating RCMP member which was made an exhibit in the sentencing proceedings. [ 46 ] That letter said, in part: While we in no way condone the behaviour of Teresa, our conclusion is that the impact on our community in particular with respect to the financial aspect is relatively small.

At the time, limited capacity prevented anyone from being aware of the problem given that it happened over a number of years, the deficits created either went unnoticed or for all intents and purposes, were supported. Financial statements were rarely presented to the community and internal controls were such that the ability to take advantage of weaknesses within the system was enabled. The Kwadacha Nation is proud to say that we've taken steps to prevent this type of thing from happening in the future.

Since this was brought to the attention of the community some three years ago, any ill will felt by the majority of people in this community has for the most part been forgiven. Teresa has had to live face-to-face and next door to family and community members for a number of years since this became public knowledge; she's been subjected to ridicule, has been judged and quietly led a life keeping much to herself. Although Teresa betrayed our trust, we as a community over time have managed to forgive her and have in effect "moved on".

We feel that a severe punishment at this time may ultimately do more harm than good from a community standpoint. Teresa is not a bad person; she is well-liked in the community and is part of a large network of family and friends, many of whom are positive role models. Her mistake was a result of an addiction for which we would hope to see her seek counselling.

Our position is that whatever Teresa took away from this community, she could make up for by making a contribution to our community as retribution; perhaps something in Home Care, an area with which she is not only familiar, but is very good at. Would also support her acting as a spokesperson with community members and in particular our youth, on a gambling addiction. Pre-Sentence Report [ 47 ] A Pre-Sentence Report was prepared by Probation Officer Christopher Tyler. In preparation of that report Mr. Tyler interviewed Ms.

McCook, two of her children, two friends and a representative of the Kwadacha Nation. [ 48 ] The Pre-Sentence Report dealt with Ms. McCook's personal history and also set out some Gladue considerations as they pertain to both the Tahltan Nation and the Kwadacha Nation. [ 49 ] The Pre-Sentence Report included two important statements relevant to Ms. McCook's sentencing. The first of these is under the heading "Attitude and Understanding regarding Offence" where the author states: Ms.

McCook acknowledges that she was acting in a dishonest manner when she coerced and manipulated her family and friends to assist in the process of misappropriating the funds. Ms. McCook expresses extreme remorse for her actions and further iterates she is ashamed of herself because of her behaviours and feels she has disappointed her Elders. Ms. McCook further describes herself in negative terms, stating that "[she is] not a good person" and that she is angry with herself. Ms.

McCook states she, at the time of her offending behaviour, did not see what she was doing as stealing, but rather was borrowing money with the intent to repay the funds. It appears from the information that Ms. McCook shared, that her remorse regarding the offence was not generated by her behaviour, but rather as a result of being caught. Furthermore, Ms. McCook reiterated to this writer on multiple occasions that she does not think of her behaviour as stealing or wrong, but rather that she was just borrowing the money. Ms.

McCook expresses that the community members of the Kwadacha Nation experienced no negative recourse as a result of her actions as more funding would now be made available to the community through the Federal Government. Moreover, when asked directly how the community could have benefited from influx of nearly three-quarters of a million dollars Ms.

McCook was unable to offer insight as to the potential benefit this money might have provided to the community. [ 50 ] The second is under the heading Sentencing Considerations For Aboriginal Offenders where the author states: The Kwadacha Nation offers several options for First Nations focused counselling and healing. There are counsellors within the community that will be able to provide counselling with a First Nations approach and focus. Additionally, there are opportunities to attend and participate in a restorative program within the community.

Furthermore, the Chief and Counsel (sic) of the Kwadacha Nation are supportive and welcoming to a restorative approach to sentencing that would allow for Ms. Cook to create a balance that incarceration would prevent. Gladue Report [ 51 ] A Gladue Report was prepared by writer A. J. Thom Swan, a qualified Gladue Report writer. Mr. Swan interviewed Ms. McCook, the present Chief of the Iskut Band, one of Ms. McCook’s children, a health and addictions counsellor, a federal parole officer and an official from a women’s correctional centre. [ 52 ] The Gladue Report also reviewed Ms.

McCook's personal history and then spent considerable time discussing how Ms. McCook's situation fits into the Gladue analysis. The author summarizes the Gladue factors in the following manner: [ 53 ] Over the course of preparing this report, a number of Gladue factors became apparent, including that: 1. Theresa is a Tahltan woman from the Kwadacha Nation of Fort Ware, BC. 2. Theresa has expressed a willingness to address the underlying factors that have contributed to matters before the court. 3. Theresa’s children have indicated that they support her. 4.

The Kwadacha Nation has indicated that they support her. 5. A number of adverse impact factors that affect Aborignals in general are present in Theresa’s personal life, including:

a) Alcohol abuse (mother, father, brothers)

b) Domestic violence (she frequently witnessed physical violence by her father and her older brothers)

c) Loss of Aboriginal culture and loss of language (although she was forbidden to speak her language in school, Theresa has retained her language).

d) Loss of traditional teachings (Theresa reported that speaking of her traditional beliefs and teachings while in school was ridiculed by the nuns but she has retained most and teaches them today to her grandchildren)

e) Reported sexual abuse as a child (Theresa alleged that she was sexually molested by a neighbor’s son)

f) Witnessing sexual violence (Theresa reported that she witnessed an attempted sexual assault on her grandmother by her father)

g) Suicide attempt (Theresa’s older brother attempted suicide by shooting himself in the presence of her children)

h) Suicide attempt (Theresa reportedly attempted suicide when she was 15 years old by ingesting a bottle of pills)

i) Low educational achievement (Theresa completed Grade 10 and did not achieve any further education until recently). [ 54 ] The report concluded by setting out the various resources that would be available to Ms. McCook if she was sentenced to a federal penitentiary, a provincial prison or a Conditional Sentence Order. [ 55 ] The Gladue Report (along with the Pre-Sentence Report) was ordered by the Court at the request of Defence counsel and with the concurrence of the Crown. [ 56 ] Once ordered by the Court pursuant

section 721 of the Code a Pre-Sentence Report is authored by a probation officer and provided to the Court and counsel. [ 57 ] Similarly, when a psychiatric or psychological report is ordered by the Court the appropriate expert employed by the Forensic Psychiatric Services Commission prepares a report which is provided to the Court and counsel. [ 58 ] In those cases there is no question of or interference with the Court's power and authority to order those reports; they are done without question by the appropriate agency. [ 59 ] However, the same is not true when the Court orders a Gladue Report. [ 60 ] The requirement that the sentencing court have accurate and thorough information about an aboriginal offender is well established by the Supreme Court of Canada decisions in Gladue and equally, the British Columbia Court of Appeal decision in R. v.

Napesis 2010 BCCA 499 and several decisions from the Alberta Court of Appeal including R. v. Mattson 2014 ABCA 178 and R. v. Napesis 2014 ABCA 308 . [ 61 ] In British Columbia funding for the preparation of Gladue Reports is provided through the Law Foundation to the Legal Services Society (LSS) who administers the funds. [ 62 ] According to the LSS, a judge cannot technically “order” that they create a Gladue Report. It is their position that a judge can order that there be a Gladue

section of a Presentence Report, but if a judge orders a Gladue Report, LSS is under no obligation to provide it. Defence counsel must still apply for funding for a report, and they maintain the discretion to reject any requests. [ 63 ] The LSS considers a number of factors when allocating funds for Gladue reports. Priority is given to cases in which the client:

a) is a youth,

b) has a lengthy record,

c) faces an indictable charge (excluding first degree murder),

d) faces a federal prison sentence,

e) has mental health, addiction and/or FASD issues,

f) is an Indian residential school survivor or former foster child,

g) has community and family support,

h) has a bail hearing. [ 64 ] Requests may not be approved if the client resides outside a 200 km radius for in-person interviews. This is designed to avoid LSS incurring excessive travel expense, it is subject to exceptional circumstances and budget availability. [ 65 ] In Gladue the Supreme Court of Canada said unequivocally that the Canadian criminal justice system has failed the Aboriginal peoples of Canada, and that the disproportionate number of crimes committed by Aboriginal people across Canada is tied to the legacy of colonialism.

When sentencing an Aboriginal offender, a judge must pay particular attention to the background factors of the person before the court, and must take judicial notice of the systemic factors which have played a

part in bringing the offender before the court, as well as their unique personal background circumstances. The court must also consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [ 66 ] The Supreme Court said expressly that this information is necessary for sentencing unless an Aboriginal offender waives that right, and that “this element of duty is a critical component of s. 718.2(e).”

[ 67 ] Thirteen years later, this issue was addressed again in Ipeelee , The judgment addressed the fact that even though it had been over a decade since the Gladue decision, s. 718.2(

e) had made no impact on the overrepresentation of Aboriginal people in the criminal justice system, and part of that was due to incorrect application of Gladue . The Court reaffirmed that judges must take Gladue factors into account when sentencing an Aboriginal offender, and that any failure to do so is an appealable error. The Supreme Court noted at paragraph 60: 60…In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under as. 718.2 (e). [ 68 ] In R. v.

Lawson, 2012 BCCA 508 , the court considered the requirements of a Gladue report, and said that although the Gladue information must be before the judge, “a formal Gladue report is not necessary to provide the court with Gladue information; Gladue information may also be provided to the Court through a pre-sentence report.” [ 69 ] However, Mattson suggests that not tendering a Gladue report is an appealable error.

In that case there was no Gladue report entered into evidence when sentencing an Aboriginal offender to an indeterminate sentence and designating him a dangerous offender. [ 70 ] The appellant argued that the sentencing judge did not discharge his duty under s. 718.2(

e) and Ipeelee to acquire case specific information about the appellant’s circumstances because he did not order a Gladue report, did not take judicial notice of systemic factors affecting Aboriginal people in general, and did not use that information appropriately in determining sentence. [ 71 ] The Crown argued that the sentencing judge did take the Gladue factors into account, and he did have the relevant information before him, just not in the form of a Gladue report. [ 72 ] The court ruled that in that case, the lack of a Gladue report was not an appealable error, but it would be in future cases saying at paragraph 50: [50] It is clear from the decision in Ipeelee that when sentencing an Aboriginal it is required that a Gladue report be prepared.

We find that notwithstanding that there was no formal Gladue report per se prepared in this case, virtually all the information that would have been contained in a Gladue report was before the sentencing judge in one form or another. The sentencing judge took cognizance of it; therefore, in substance a Gladue report was before him.

While in all future sentencing hearings involving Aboriginals, a Gladue report must be tendered, we feel that on the facts of this case, as the pertinent information was before the sentencing judge, that it would elevate form over substance to allow the appeal on the basis that a formal Gladue report had not been tendered at the sentencing hearing. [ 73 ] In R. v. Napesis , 2014 ABCA 308 , the same issue arose. The sentencing judge did not have a pre-sentence report, or any information on the Gladue factors.

The appellant appealed based on a number of factors, including that the sentencing judge failed to take into account his circumstances as an Aboriginal offender. The court agreed saying in paragraphs 8 and 9: [8] When sentencing an aboriginal offender, a judge must consider, among other things, the unique systemic or background factors which may have played a

part in bringing that offender before the court: Ipeelee at para 59. We note that, in this case, the sentencing judge may well have already been familiar with the offender and his circumstances.

However, sentencing judges have a duty to address explicitly an aboriginal offender’s circumstances, and the systemic and background factors that contributed to those circumstances (cite omitted) must explain whether those circumstances are relevant to determining a fit sentence by affecting the appellant’s degree of blameworthiness for these offences: (cite omitted) furthermore, such consideration and explanation must be informed by a Gladue report: [9] It was therefore an error to sentence the appellant without having a Gladue report and without explicitly taking its substance into account in assessing a fit sentence for the appellant….. [ 74 ] Mattson was cited as authority for the proposition that a Gladue report must be provided when sentencing an aboriginal offender.

However, the appeal judge then goes on with sentencing with the benefit of only a pre-sentence report with a

section on Gladue factors. [ 75 ] It is well-established that pre-sentence reports and Gladue reports are different, and do not contain all the same information or address all the same sentencing factors. [ 76 ] However, in the case at bar it took several appearances by counsel and some very pointed comments by the Court, which were transcribed and then forwarded to LSS, before the necessary arrangements could be made for a Gladue Report to be prepared. [ 77 ] With respect, the present process of having LSS act as a "gatekeeper" is unacceptable.

It clearly interferes with the Court's and individual Judge's independence in the sentencing process by subjecting those persons who are the most adversely affected by the systemic negative impact of the criminal justice system (Aboriginal people) to further potential negative impacts through the actions of a bureaucracy that is fiscally constrained in how it decides whether a report of the importance of a Gladue report is prepared. [ 78 ] It is imperative that the Provincial Government give earnest consideration to re-examining the present procedures for obtaining Gladue reports and provide the appropriate and adequate funding to allow the Court to properly carry out its duty in the sentencing of Aboriginal offenders as mandated by the Supreme Court of Canada.

The Court and offenders should not be relegated to going "cap in

hand" to obtain the pertinent, detailed and specific information vital to the appropriate sentencing of Aboriginal offenders. THE LAW Criminal Code [ 79 ] The relevant sections of the Code are: a) 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. b) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. c) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,… (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. c) 721(1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under

section 730.

(2) The lieutenant governor in council of a province may make regulations respecting the types of offences for which a court may require a report, and respecting the content and form of the report.

(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters: (

a) the offender’s age, majority, character, behaviour, attitude and willingness to make amends; (

b) subject to subsection 119(2) of the Youth Criminal Justice Act , the history of previous dispositions under the Youth Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act , and of previous findings of guilt under this Act and any other Act of Parliament; (

c) the history of any alternative measures used to deal with the offender, and the offender’s response to those measures; and (

d) any matter required, by any regulation made under subsection (2), to be included I the report.

(4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2). d) 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 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; Case Law Crown [80] The Crown relied on the following cases on a variety of topics: Aboriginal Offenders

a) R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 [81] Given that Ms. McCook is a First Nations person the Crown acknowledged that she is entitled to have her sentence consideredby applying the Gladue factors. However, the Crown urged the Court to consider specific aspects of the Gladue analysis described inparagraphs 78 and 79: [78] In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such asdeterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in theimportance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there aresome serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered.

In somecircumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [82] The Crown submitted that in the present case Ms. McCook’s upbringing and background did not play a

part in bringing herbefore the Court. By analogy, the Crown submitted that if an Aboriginal offender was raised in an environment of violence, and becauseof that, acted violently, one might argue that the background played a

part in the offence. But the present case is a crime of greed, forpersonal gain. Her moral culpability is not lessened by her background. This case is not part of the problem that Gladue was attemptingto address.

b) R. v. Ipeelee, 2012 SCC 13 [83] The Crown asked the Court to consider the purpose of s. 718.2(e), as the Supreme Court of Canada did in Ipeelee, when takinginto account the circumstances and background of Ms. McCook. [84] The Crown maintained that the provisions of s. 718.2(

e) were meant to be one of many avenues taken to address the problem. There are many others including: counselling, education, sports and health programs and social development opportunities. The sadirony of this case is that Ms. McCook took the $724,570.40 from those kinds of programs that were meant to improve the lives of FirstNations people and ultimately assist in addressing the problem. But those programs did not occur at that time. Now, Ms. McCook asksthe Court for lenience because of the circumstances of the Kwadacha people.

She was entrusted to assist in improving thosecircumstances, but by taking the money, she thwarted the help that the funds could have provided. [85] The Crown asked the Court to consider the following paragraphs from Ipeelee: 69 Certainly sentencing will not be the sole-or even the primary-means of addressing Aboriginal overrepresentation in penalinstitutions.

That does not detract from a Judge's fundamental duty to fashion a sentence that is fit and proper in the circumstances of theoffence, the offender, and the victim. … 72 ...The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offenderwhich could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the uniquesystemic and background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (2)the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or herparticular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and propersentence. 73 First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or herlevel of moral blameworthiness.

This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the uniquesystemic or background factors that are mitigating in nature in that they may have played a

part in the aboriginal offender's conduct"

(para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani , 2002 ABQB 1097 , 331 A.R. 50, [page478] after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender .

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment

c) R. v. Wells, 2000 SCC 10 [ 86 ] The Crown also asked the Court to consider Wells and in particular paragraphs 44 and 45: 44 Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(

e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33 ).

Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. 45 Whether a crime is indeed serious in the given circumstances is, in my opinion, a factual matter that can only be determined on a case-by-case basis. Fit and Just Sentence [ 87 ] The Crown relied on a number of cases regarding the appropriate sentence for Ms. Mc Cook.

d) R. v . Patrick 2006 BCSC 1284 [ 88 ] Ms. Patrick was the office manager of major junior hockey team and was in a position of trust by maintaining financial records and handling money. She committed theft of $989,647.46 over nine years. She made cheques for more than was required for the payments while recording the amount as only what was required. She would cash the cheques and pay the obligation of the team and keep the balance. After the offence came to light, restitution of $150,000.00 was made, so the net loss was $839,647.46. Ms. Patrick was 48 years old, pled guilty, and had no criminal record.

She had personal problems which led to a cocaine addiction. [ 89 ] The court imposed a sentence of three and a half years saying at paragraph 39: [39] The jurisprudence clearly establishes that the paramount principle of sentence in cases involving large-scale fraud, by persons in a position of trust, is that of general deterrence. That is because in most instances, crimes of this nature are perpetrated by individuals who are of good character and who have no criminal record. It is these very characteristics that qualify them for positions of trust. Ms. Patrick also possessed those characteristics.

e) R. v . Chernoff , 2009 BCPC 38 [ 90 ] Mr. Chernoff was employed by a forest products company, first as a financial controller, and later as the Assistant Chief Financial Officer. Over three years he defrauded the company of $981,979.38. His scheme was sophisticated and deliberate. He incorporated his own company and submitted invoices for fictitious deliveries of lumber. No actual business transpired, but the invoices appeared to be legitimate. He made false journal entries to balance the accounts.

The scheme was discovered through the observations of a clerk and an auditor. [ 91 ] The Court relied on Patrick and considered that the payment of full restitution to be a mitigating factor by reducing the sentence imposed from four years to three years.

f) R. v . Elliott , 2010 BCPC 83 [ 92 ] Ms. Elliott was the accountant/bookkeeper for a small, family-run business. At the time of sentencing she was 45 years old, had no criminal record, and had two children. She was a trusted, long term employee. She would prepare cheques for signature by the company owners and was not asked for the supporting documents. In eight years she created 113 fraudulent cheques totalling $954,728.76. Of that, $117,000 was recovered.

[93] At paragraph 19, the court quoted R. v. Pierce: 19. Our courts have routinely recognized this reality when sentencing offenders who engage in crimes of this nature and consequentlyhave emphasized that the paramount objective is the deterrent effect which the sentence will have on others… What the authorities make clear is that the purpose of incarcerating these offenders is not to protect the community from any dangerposed by the particular offender, but to protect the community from the danger posed by those who may be inclined to engage in similarconduct. [94] The Court imposed a sentence of 3 1/2 years in a federal penitentiary.

g) R. v. Marr 2008 BCPC 152 [95] Ms. Marr was the accountant/bookkeeper and business manager of an alarm company. She was married and 48 years old at thetime of sentencing. She pled guilty and had no criminal record. She was a long term employee who had sole control over the company’sfinances. For over six years she made 195 fraudulent electronic transfers to herself totalling $913,526.78.

She stated that she had beendriven to commit the offences by a cocaine addiction. [96] The court imposed a four year sentence and stated at paragraph 32: 32… in cases of this kind incarceration is more likely to affect general deterrence because those who commit these kind of offences aregenerally of good character and will be deterred by the prospect of incarceration. Also, these authorities make it very clear that generaldeterrence is to be given the most weight in sentencing.

h) R. v. Quinn unreported, April 15, 2005 New Westminster Registry No. X0066517 – 2 BCSC [97] Ms. Quinn was an adjuster employed by a public insurance corporation. She defrauded the corporation of $424,687.11 over fouryears by creating fictitious invoices from third parties and authorizing payments to bank accounts which she controlled. She wasconvicted after trial. [98] She was married with grown children and no previous record. She was judged unlikely to reoffend. Nevertheless, the offencewas sophisticated, deliberate, committed over time, was a breach of trust and involved a significant amount of money.

There was nosubstantial likelihood of restitution. Her previous good character had helped or enabled her to commit the offence. The Courtemphasized general deterrence and denunciation and imposed a penitentiary sentence of three and one half years.

i) R. v. Beggs 2003 BCCA 101 [99] Ms. Beggs was employed by Revenue Canada in a position of trust. Over the course of four years she used her high level ofsecurity to fraudulently obtain child tax credits for herself and others. She benefited from this in the amount of $103,235.00 and that wasthe amount of restitution ordered. The total fraud was $221,434.96. [100] Ms. Beggs had no criminal record. The Court of Appeal upheld a sentence of four years in a penitentiary, stating in paragraph 7that the sentence “reflects the goals of denunciation and deterrence.” Danger to the Community

j) R. v. Pierce (1997) (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.) [101] Ms. Pierce was a comptroller for a subsidiary of a large operation. She stole $270,000.00 from her employer by utilizing 42fraudulent cheques payable to an account she controlled. She spent the money she stole on expensive items and car payments. She wasan educated person with supportive parents, three young children and a new business enterprise. [102] The trial court sentenced her to a 21 month term in prison from which she appealed seeking a conditional sentence order of 12months.

The Court of Appeal granted the reduction of sentence but refused to permit the sentence to be served conditionally. As part ofits decision the Court of Appeal reviewed and considered the aspects of s. 742.1 concerning potential danger to the community arisingfrom offences involving a breach of trust to an employer. [103] At paragraph 41, citing R. v. Cossette-Trudel (1979), (QC CQ), 52 C.C.C. (2d) 352, the court stated: 41.

There will also be a danger to the community if the sentence imposed is not of a nature to deter others from conduct analogous tothat ... of the accused. [emphasis in original] [104] At paragraph 42 the Court quoted from R. v. Wallace (1996), Ont.Ct. Gen Div:

42. I am inclined to the view that the use of the terminology "would not endanger the safety of the community," as used in s. 742.1(b)of the Code, includes both the notion of risk from the offender himself or herself, and, endangerment of the community in the broadersense of dilution of the general deterrence principle to the point of eliminating any deterrent warning to like-minded individualsconsidering commission of the offence in question.

That a safe community is advanced by the deterrence of others from committing theoffence in question is clear, in my view, from a reading of s. 718 itself. [105] In concluding that a conditional sentence order was not appropriate the court said at paragraph 48: 48 I would, however, refuse the application to permit the appellant to serve the sentence in the community. The abuse of a position oftrust or authority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines in s. 718.2. This factorhas traditionally drawn a severe custodial term even with first offenders.

I do not believe that this court should exercise his discretion infavour of having the appellant serve her sentence in the community where, as here, the trial Judge has clearly stated his concerns as tohow a noncustodial term would be viewed by the community. [106] The Crown submitted that this view was adopted by the Supreme Court of Canada in R. v. Proulx 2000 SCC 5 , [2000]1 S.C.R. 61 where the court said at paragraph 76 that: 76 …The phrase "would not endanger the community" should be construed broadly, and include the risk of any criminal activity.Such a broad

interpretation encompasses the risk of economic harm. Applicable Sentencing Principles

k) R. v. N.C.D. 2003 BCSC 537 [107] Mr. D. pled guilty to theft of $173,159.00. He was the Chief Financial Officer of a hospital and in a position of trust. Over thecourse of five years, he had altered 52 cheques. Mr. D. had five impaired driving convictions over the course of 16 years, but noconvictions related to anything else. The Court said at paragraph 18: [18] In R. v. Pierce, the Ontario Court of Appeal recognized that thefts or frauds, involving breach of trust, usually involve peoplewho are first time offenders of good reputation and who pose little if any future risk to the public.

That is why they are in a position oftrust. The fact that they have abused the position is the reason why they will not be able to obtain a similar position and therefore do notpose a threat of reoffending. [108] The Court sentenced Mr. D. to three years in the penitentiary.

l) R. v. Reid, 2004 YKCA 4 [109] Ms. Reid fraudulently took $212,000.00 from her employer. As the head cashier, she was in a position of trust. There were 277separate acts of theft over the course of three and one half years. The accused had no record. The Yukon Territory Court of Appealoverturned a conditional sentence and imposed a sentence of 14 months in custody plus time served, which was three months, credited assix months, effectively 20 months in custody. [110] The Court said at paragraph 8: 8.

What the authorities make clear is that the purpose of incarcerating these offenders is not to protect the community from anydanger posed by the particular offender, but to protect the community from the danger posed by those who may be inclined to engage insimilar conduct.

m) R. v. Warner, [1999] B.C.J. No. 1107 (B.C.P.C.) [111] Ms. Warner was employed as a Financial Services Manager at a bank and created a scheme to defraud the bank of $200,000.00over the course of four years. She pled guilty, had no criminal record, and received a sentence of three years in the penitentiary. [112] In paragraph 9(3) the court stated that the prior good character of Ms. Warner was of little weight as a mitigating factor because“it was her prior good character that allowed her to be in a position of trust to commit the offence.”

n) R. v. Spiller, (BC CA), [1969] 4 C.C.C. 211

[113] Ms. Spiller was a senior and trusted bank employee who stole $492,000.00 over four years. She was in her early twenties, hadno criminal record, and had several witnesses attest to her “good character”. On that point the Court of Appeal said at page 214: 214. She used her apparent good character to enable her to perpetrate her crime; now her counsel wants to use it in mitigation ofpenalty! [114] The Court of Appeal increased the sentence from three years to six years in the penitentiary. Defence [115] The Defence relied on the following cases in support of a conditional sentence.

a) R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 [116] Defence counsel submitted that the Court should pay particular attention to paragraphs 61 through 69 which state: 61 Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of theaboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspectsof the system. As this Court recently noted in R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128, at para. 58, there iswidespread bias against aboriginal people within Canada, and “[t]here is evidence that this widespread racism has translated intosystemic discrimination in the criminal justice system”. 62 Statements regarding the extent and severity of this problem are disturbingly common.

In Bridging the Cultural Divide, supra, atp. 309, the Royal Commission on Aboriginal Peoples listed as its first “Major Findings and Conclusions” the following striking yetrepresentative statement: The Canadian criminal justice system has failed the Aboriginal peoples of Canada -- First Nations, Inuit and Métis people, on-reserve andoff-reserve, urban and rural -- in all territorial and governmental jurisdictions.

The principal reason for this crushing failure is thefundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantivecontent of justice and the process of achieving justice. 63 To the same effect, the Aboriginal Justice Inquiry of Manitoba described the justice system in Manitoba as having failedaboriginal people on a “massive scale”, referring particularly to the substantially different cultural values and experiences of aboriginalpeople: The Justice System and Aboriginal People, supra, at pp. 1 and 86. 64 These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.

The figuresare stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation ofaboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 (e), intended toattempt to redress this social problem to some degree.

The provision may properly be seen as Parliament’s direction to members of thejudiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through thesentencing process. 65 It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem ofaboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from anumber of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginalpeople. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refusebail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot beaddressed in these reasons.

What can and must be addressed, though, is the limited role that sentencing judges will play in remedyinginjustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence thetreatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, orwhether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to theoffender, victim, and community, and in preventing future crime. E. A Framework of Analysis for the Sentencing Judge

(1) What Are the “Circumstances of Aboriginal Offenders”? 66 How are sentencing judges to play their remedial role? The words of s. 718(

e) instruct the sentencing judge to pay particularattention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from thoseof non-aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass awide range of unique circumstances, including, most particularly: (

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and

(

B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. (

a) Systemic and Background Factors 67 The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration.

A disturbing account of these factors is set out by Professor Tim Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in Continuing Poundmaker and Riel’s Quest (1994), at pp. 269-300. Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp. 275-76) that “[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment.

When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail.” 68 It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well.

However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. 69 I n this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender.

While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

b) R. v. Ipeelee , 2012 SCC 13 [ 117 ] Defence counsel asked the Court to consider paragraph 70 which says: 70 Closely related to the background and systemic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people.

A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. The aims of restorative justice as now expressed in paras. ( d ), ( e ), and (

f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2 ( e ).

c) HMTQ v. Wilson 2003 BCSC 414 [ 118 ] Ms. Wilson was a 53 year old First Nations woman with no criminal record. She was the administrator of the social development program for a First Nations community of which her husband was a prominent member. She was a long term and trusted employee. Over a period of five years she obtained $140,000.00 by a series of frauds carried out through the preparation of false documentation. [ 119 ] After a thorough consideration by the Court of the implications of Gladue , the factors to be considered in a breach of trust or fraud situation and the availability of a conditional sentence, Ms. Wilson was sentenced to a conditional sentence order of 20 months.

d) R. v. Keatley 2009 BCPC 249 [ 120 ] Ms. Keatley was a 45 year old assistant manager of a credit union with no criminal record. Over a period of 15 months she defrauded her employer of $537,267.00 through a series of 60 fraudulent transactions. [ 121 ] The funds she received were used to fuel a gambling addiction. Subsequent to her arrest she entered into a seven month counselling program to address that addiction.

She also agreed to a civil judgment against her for the amount outstanding. [ 122 ] Several members of the credit union staff filed victim impact statements setting out the harm the credit union had suffered in the community as a result of the fraud. There were also several letters of character adduced on behalf of Ms. Keatley. [ 123 ] The Court sentenced her to a conditional sentence order of two years less one day.

e) R. v. Houde 2005 BCPC 632 [ 124 ] Mr. Houde was a 52 year old highly trusted employee of a small local credit union. He had no criminal record. Over several years he committed a fraud against his employer in amount of $168,000.00 utilizing the operation of a competing loan company he controlled. His actions were motivated by greed. [ 125 ] When the fraud was detected Mr. Houde and his family suffered a great deal of personal embarrassment and financial hardship. His spouse’s business collapsed and given the notoriety in the small community the family was forced to move. [ 126 ] The court sentenced Mr.

Houde to a conditional sentence order of two years less one day and a restitution order for the full amount of the loss.

f) R. v. Millard and Walls unreported, March 8, 2007 Prince George Registry No. 18826 BCSC [ 127 ] Mr. Millard and Mr. Walls were both 55 years old and were two principals of a very large and successful automotive dealership. They had no criminal record. They jointly engaged in the fraud which deprived a large automotive manufacturing company and a national bank of amounts in the millions of dollars. [ 128 ] They were each sentenced to a conditional sentence order of two years less a day with only the mandatory conditions prescribed by the Code .

g) R. v. Morrison 2012 BCSC 155 [ 129 ] Mr. Morrison and Mr. Wells were both First Nations members. They were senior officials in two not-for-profit Aboriginal fishing related organizations dependent on government funding. They jointly committed fraud in the amount of $911,932.00 through a series of fictitious invoices and contracts for employment over a period of three years. [ 130 ] Mr. Morrison was raised in a northern First Nations community by parents who had some difficulties with alcohol. He was sexually abused by an extended family member. [ 131 ] Mr.

Morrison was in his late 20’s during the time of the offences and he was drinking heavily and gambling frequently. He was married with five children from various relationships. Subsequent to being found out, he had begun counselling and addictions treatment and had entered into an Aboriginal Justice Program. The Aboriginal Justice Program planned to involve Mr. Morrison in a number of different activities and initiatives to address his substance abuse issues and to apologize to the members of his band and the greater community. [ 132 ] Mr.

Wells was also raised in a northern First Nations community and he had many siblings. At a very young age he accidentally caused a house fire in which two of his siblings perished. For many years he believed members of his family blamed him for that tragedy. [ 133 ] Mr. Wells was married and had two teenage children residing with him. He also had an adult daughter from earlier relationship. He had a number of serious health issues. During the time of the offences he was gambling and drinking. [ 134 ] Both Mr. Morrison and Mr. Wells had dated and unrelated criminal records.

A Pre-Sentence Report and a Gladue Report were prepared for each of them prior to sentencing. They both addressed the court prior to sentencing expressing their sense of shame and remorse for their activities. [ 135 ] The court considered several victim impact statements which described the nature and extent of the harm the large scale fraud had on the organizations, the individuals employed with those organizations, and on the communities served by the organizations. [ 136 ] The court imposed a two year penitentiary sentence on Mr. Morrison and an 18 month prison sentence on Mr.

Wells, and in doing so, specifically rejected the submission that a conditional sentence order was appropriate in the circumstances. [ 137 ] In discussing the appropriate sentence, the Cullen, ACJ said the following about Mr. Morrison’s involvement at paragraph 79: 79. In the case of Mr. Morrison, the aggravating factors are: he was in a position of trust which he breached repeatedly over a period of three years; his actions led to the theft of over $900,000 of public funds earmarked for two non-profit organizations dedicated to the advancement of First Nation’s interests and autonomy.

The plundering of the organizations destroyed those organizations and caused the loss of jobs of innocent people and damage their careers and reputations. The benefit of the organization was lost to the greater community and the actions inevitably erode public confidence in such undertakings. [ 138 ] With regard to Mr. Wells’ involvement the court said at paragraph 94: 94.

I do accept, however, that the offender Wells’ offending is not unrelated to his aboriginal status or the conditions which have affected him, although it is necessary to note, as with the offender Morrison, that his offending was not a one-time act borne out of need or an uncontrolled impulse. Rather, it was a premeditated and protracted plundering of non-profit organizations, apparently motivated by greed. SUBMISSIONS

Crown [ 139 ] In its submissions the Crown asserted that the flowing were aggravating and mitigating factors: Aggravating Factors

a) Ms. McCook was in a position of trust;

b) She stole a significant amount of money;

c) There appears to be little chance of any restitution;

d) There was a high degree of pre-meditation;

e) The scheme had a high degree of sophistication, which was carried out over time;

f) Ms. McCook is obviously intelligent and has business knowledge and acumen, which she put to a criminal purpose;

g) The money taken was earmarked for the improvement of the circumstances of members of the Kwadacha Nation. Mitigating Factors

h) Ms. McCook provided an early and full confession;

i) She entered a Guilty plea thereby avoiding what would have been a lengthy and complicated trial;

j) Ms. McCook is remorseful. [ 140 ] The Crown also addressed the following additional points:

a) This is a serious crime given that $724,570.40 was taken. With a theft of this size, the case law sets out the sentence should be significantly longer than two years;

b) Gladue states that the more serious an offence is “the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.”

c) The goals of denunciation and deterrence cannot be met with a conditional sentence order. The case law states that there is a danger to the community if the sentence imposed is not of a nature to deter others from conduct analogous to that of the accused;

d) With Aboriginal offenders, Gladue and Ipeelee make the connection between their background and their moral blameworthiness. A person raised in a violent environment may have less moral culpability for a crime of violence. But the present case is a sophisticated offence of greed, for personal gain;

e) Gladue addresses the issue of overrepresentation of First Nations people in prison. Gladue is one of many facets that our society is using to address this problem. There are also many programs and resources which attempt to further this cause. It is from some of those very programs that Ms. McCook took the money. Consider the descriptions of the programs that Ms. McCook stated were being undertaken. People were led to believe that certain programs were being provided. They are exactly the kinds of programs that are contemplated by the Supreme Court of Canada in Ipeelee ;

f) There are several potential types of victims arising from the circumstances of this case including the Kwadacha Nation which did not get the programs that were applied for, the members of the Kwadacha Nation who missed out on the programs that should have been offered, the Government which paid money expecting services to be provided and citizens of Canada who expect government funding for programs to be utilized to help those in need particularly in the circumstances of many First Nations.

g) Ms. McCook did not cease her thefts until she was confronted. Defence [ 141 ] Defence counsel approached his submissions from three perspectives:

a) Information gathered from his interviews of Ms. McCook;

b) Information detailed in the Gladue Report;

c) Information set out in the Pre-Sentence Report. [ 142 ] Defence counsel's submissions can be summarized as follows :

a) An analysis based on Gladue requires consideration of a particular native person in particular circumstances. Aboriginal people have some unifying factors but individuals from different First Nations have very different cultural experiences ,

b) In English law theft is a very serious matter because property rights are considered very important. But there are understandable differences between the English law view and that of First Nations people with regard to certain types of crimes based on their different historic cultural perspectives. The Court must examine the situation in light of those differing cultural perspectives,

c) Ms. McCook’s present situation is shaped by the circumstances of her upbringing including familial alcohol abuse, the effect of day school run by the Catholic Church which attempted to kill the culture and language she been raised in, and the fact that having parents from two different First Nations left her in the position of not fitting in in the community where she was raised,

d) First Nations people have been at the bottom level of Canadian society for many generations, treated as second-class citizens and had their cultural identity and language suppressed for many years to the point that it is hard to measure how that might affect an individual overtime ,

e) Ms. McCook's gambling was initially recreational but as she began to rely on it as a way of escaping her personal situation it became more and more problematic for her particularly when she became more involved in borrowing money from loan sharks. Ms. McCook did not "profit” from the gambling; she was not buying expensive gifts or living a lavish lifestyle. She was not happy and knew that what she was doing was wrong. She was not proud of herself but like any addict could not control it,

f) Although initially angered the people of the Kwadacha Nation have come to forgive Ms. McCook and are no longer angry with her and if the people of Canada are angry about her actions then they are racists ,

g) Ms. McCook's present duties including working as a medical office assistant and community health representative are greatly needed in Kwadacha,

h) the Kwadacha Nation has a Restorative Justice Coordinator who is capable of supervising Ms. McCook's sentence if served in in the community and could ensure that she provided assistance to the community in various ways,

i) Ms. McCook has many family members who depend upon her in Kwadacha including some of her adult children, the child that still resides with her, and many grandchildren who she sees on a daily basis,

j) any restitution ordered to be paid should be in a limited amount that can be afforded by Ms. McCook. DISCUSSION [ 143 ] In determining an appropriate sentence is in this case it is first necessary to determine two preliminary issues:

a) is a sentence of incarceration required and if so should it be for more or less than two years?;

b) if incarceration is to be for less than two years, need it be served in an institution or can it be served in the community? [ 144 ] Defence counsel acknowledges that a period of incarceration is warranted in the circumstances of this case. The disagreement between counsel is with regard to the length and the location of such incarceration. [ 145 ] As might be expected the Crown presented cases where sentences of more than two years in analogous situations were imposed.

The Defence provided cases where a sentence of less than two years was imposed and in most of the cases it was a Conditional Sentence Order. [ 146 ] Although it is not the only determining factor there was no mention in any of the Crown cases of the offenders being Aboriginal while in in some, but not all, of the Defence cases that factor was present. [ 147 ] When considering the case law presented by counsel, the circumstances of Ms. McCook and of her offence are most similar to the circumstances described in Morrison .

In both cases Aboriginal persons stole very sizable sums of money from organizations designed to assist First Nations people. The amounts stolen in each case were substantial and the thefts were conducted in a similar fashion, although in Morrison it was for a longer period of time. [ 148 ] Mr. Morrison, Mr. Wells, and Ms. McCook all had similar upbringings in First Nations communities.

Those upbringings were less than optimal and they each suffered a variety of personal indignities and difficult circumstances. [ 149 ] They all had extended families who relied on them financially, culturally and socially. [ 150 ] They each utilized the stolen funds for gambling, but in addition Mr. Morrison and Mr. Wells were also involved in alcohol

abuse. [ 151 ] In both cases the Crown sought sentences of between two and five years in a penitentiary and the Defence sought a Conditional Sentence Order. [ 152 ] In Morrison both defendants expressed remorse for their actions in a similar fashion to the sentiments expressed by Ms. McCook. The court in Morrison accepted the remorse expressed to be genuine and that Mr. Morrison and Mr. Wells were unlikely to ever reoffend. In this case the Court accepts that Ms.

McCook is remorseful and is very unlikely to reoffend. [ 153 ] In Morrison the court accepted the Crown's contention that, in general, the sentence for fraud or theft of the magnitude involved should be between 3 and 5 years. Based on the facts of this case the same starting point must apply to Ms. Mc Cook. [ 154 ] In Morrison the court discussed and applied the Gladue factors to the facts of the case and the circumstances of the defendants. In addition, it carefully considered several victim impact statements from former employees of the organizations that were defrauded.

Those victim impact statements demonstrated what the court described as "a very human cost”. They set out how the actions of Mr. Morrison and Mr. Wells had a "profound effect of these crimes on the individuals, organizations and communities involved". [ 155 ] The actions of Mr. Morrison and Mr. Wells caused those organizations to be driven out of existence and left the personal reputations of the staff sullied or shattered. [ 156 ] That result did not occur in this case. The Kwadacha Nation, although damaged by Ms.

McCook's actions, has taken a position on behalf of its members, of reconciliation and restoration and forgiveness. The representatives of the Kwadacha Nation went even further to suggest that incarcerating Ms. McCook would further damage the community and that, as a valued member of the community, Ms. McCook could make amends in a variety of ways as she has already commenced doing. [ 157 ] There is of course another entity which has suffered a loss, the Government, as the representative of the citizens of Canada. I

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