R. v. Grant-Jury, 2020 MBPC 6

CITATION: R. v. Grant-Jury, 2020 MBPC 6 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Donald Melnyk and Peter Edgett ) ) for the Crown - and – ) ) ) Heather Grant-Jury ) ) Zilla Jones for the Accused ) ) ) Reasons for Decision ) Delivered: January 30, 2020 ROLSTON , P.J. Introduction [1] Heather Grant-Jury pleaded guilty to fraud over $5,000. This Court heard several days of evidence and ultimately determinedthat she converted $131,097.04 of her employer’s money to her own use between March 22, 2012 and December 31, 2015. [2] The Crown submits that Ms.

Grant-Jury should be sentenced to 15 months in jail for her crime. The Crown also says that aconditional sentence is not available to Ms. Grant-Jury by operation of law, but even if such a sentence was available, it would beinappropriate in light of the nature of the offence, and taking into account the relevant aggravating and mitigating factors at play. [3] The Defence position is that a conditional sentence is not only available to Ms. Grant-Jury, but that it is warranted in thecircumstances.

Therefore, the Defence suggests that a conditional sentence order of two years less one day is the fit and appropriatesentence. While Ms. Grant-Jury’s counsel acknowledges that such a sentence is outside of the normal range of sentences for this offence,she points to certain aspects about the offender that justifies a conditional sentence order.

In the alternative, counsel argues that Ms.Grant-Jury is an offender whose circumstances amount to exceptional circumstances such that a suspended sentence and lengthyprobation would be an appropriate alternative to jail. [4] The Court is tasked with determining a sentence that is proportionate to the gravity of the offence taking into account thedegree of responsibility of the offender. In order to achieve this task, the Court will outline the principles of sentencing that are unique toinstances of breach of trust and examine the range of sentences generally imposed for this offence.

The Court will then identify theaggravating, mitigating and any other relevant factors that are specific to Ms. Grant-Jury. The Court will then examine the sentencingoptions available before imposing the fit and appropriate sentence for Ms. Grant-Jury. Principles of Sentencing [5] Determining a fit and appropriate sentence for the offence of fraud over $5,000 where there has been a breach of trust is anexercise that must take into account the unique features of this crime.

While the end goal remains to impose a sentence that isproportionate to the gravity of the offence and the degree of responsibility of the offender, the Court must carefully apply the principlesof sentencing in cases such as the one before the court. [6] A large body of case law has emerged that sets out the relevant considerations for sentencing Ms. Grant-Jury.

Further, sections718.2(iii) and 380.1 of the Criminal Code has codified many of the principles that have emerged from the case law over the years.Nonetheless, it is helpful to review the rationale for these principles so as to determine the extent to which they apply or do not apply toMs. Grant-Jury. [7] At the outset, it is noteworthy that the overriding principles of sentencing that apply to breach of trust are general deterrenceand denunciation (see, for example: R. v. Taylor (19 December 2003), Manitoba (Man Prov. Ct); R. v. McEachern, (1978), (ON CA), 42 C.C.C. (2d)189; R. v. Vidnovski, 2018 ONSC 6017; R. v.

Wilson 2016 ONCA 888 , [2016], O.J. No. 5987(ONCA); and R. v. Williams, (ON SC), [2007] O.J. No. 1604). As was pointed out by the Court in Williams, atparagraph 24, general deterrence should be paramount because the threat of a severe penalty is most likely to deter law-abiding personswith good employment records and families. These are the people who are most often in a position of trust. Therefore, where an offender

has committed a breach of trust, a severe penalty will be useful as a general deterrent. [8] It follows from this premise that the Court must be careful in crediting the offender with the traditional mitigating factors. Inother words, it is hardly surprising that an offender who has committed a breach of trust has an impressive background. Many, if not allwho achieve a level of trust (particularly at the level that Ms.

Grant-Jury had), have no criminal records, have a resume that featureshours of volunteer work, a solid employment history, and a cadre of upstanding citizens to vouch for their contribution to the community.These attributes that allow for the offender to be placed in their position of trust are tarnished by the offender’s actions in stealing fromtheir employer. Therefore, in addition to placing emphasis on general deterrence and denunciation, the traditional mitigating factors insentencing attract less consideration. [9] The Court is, of course, still required to consider mitigating factors.

In the context of breach of trust, courts have generallyfocused upon whether funds were recovered and presentence restitution as the main mitigating factors. Some courts have focused onmotivation for the crime which is a key component of this case and will be discussed in more detail shortly. [10] It is clear that not all breaches of trust are the same. To that end, relevant aggravating factors have emerged from the case lawthat tend to distinguish the relative severity of the offence (see R. v. Williams, at paragraph 30).

While the Williams factors are notexhaustive, they enable the court to ensure parity and proportionality amongst respective sentences. Most of the aggravating factors,along with those listed in

section 380.1 of the Criminal Code, are relevant to the case at bar and are applicable to Ms. Grant-Jury. [11] At the end of the day, courts have long recognized that abuse of a position of trust will tend to result in a custodial term, absentexceptional circumstances (see for example, R. v. Pierce, (1997) (ON CA), 114 C.C.C.(3d) 23). The maximumsentence in this case is 14 years in jail. The court in R. v.

Vidinovski, 2018 ONSC 6017 suggested (at paragraph 23) that the range ofsentence for “serious frauds involving breaches of trust and/or that cause devastating consequences to victims” amounts to three to fiveyears in jail. To put the term “serious fraud” into context, the court commented that Ms. Vidinovski’s fraud of $81,000 fell into the lowerend of the scale for this category of offences. In R. v. Turner, 2006 ABPC 189, involving just over $192,000, the court opined that therange of sentences was between two to three years for Mr. Turner’s offence.

In Manitoba, the courts have tended to allow for highprovincial time in some cases (see R. v. Geary (6 November 2006), Manitoba (Man. QB Ct.) where 15 months was imposed, and R. v.Taylor, supra, where 22 months was imposed). While achieving a proportionate sentence is an individualized process, the range ofsentence that has emerged on consideration of all the case law reviewed is from high provincial jail to penitentiary time of six years. The Aggravating Factors in this Case [12] There are many aggravating factors associated to Ms. Grant-Jury’s crime which fit within the factors identified in the case law,and in

section 380.1 of the Criminal Code: o The Nature and extent of the loss [13] The Court has determined that the total amount of the fraud here amounted to $131,097.04. This is a significant amount ofmoney by conventional standards. While the amount does pale in comparison to some of the cases the Court has reviewed, it does fitwithin the “serious” category as defined in the Vidinovski case, albeit towards the lower end of the scale. o Fraud involving public monies [14] It is clear that the money appropriated by Ms. Grant-Jury was public money.

The Court heard that Training Centre money wasderived from three sources: individual union dues, employer contributions, and by the Provincial government. The purpose of the fundswas multi-faceted, but generally went towards educating union members and members of the community who were new to Canada andneeded education on language and relevant skills training so as to contribute to the Manitoba economy in a meaningful way. o The degree of sophistication, including planning, skill and deception [15] Ms.

Grant-Jury employed a method of operation that was not overly sophisticated, but was shrewd in that she apparently utilizedher position in a very deliberate manner. Firstly, Ms. Grant-Jury was well aware of her status within the labour movement and viewed asa capable leader by her peers. It follows that Ms. Grant-Jury knew that she was left largely unsupervised at the Training Centre. [16] As this Court noted in the factual findings (2019 MBPC 55 at paragraphs 13 and 14), Ms.

Grant-Jury developed the simplemodus operendi of tearing off the itemized portion of her receipts and submitting those receipts as business expenses to the accountingdepartment. The Court has noted that initially these submissions were not fraudulent, suggesting that she was either testing the waters asto her modus operendi, or that she stumbled upon a practice that went unchecked and capitalized upon it later. Regardless, the practicewas allowed only because of who Ms. Grant-Jury was. [17] As time went on, further layers were added to the deception. Ms.

Grant-Jury had to spread her fraud around by assigningexpenses to various accounts to ensure she did not get caught. [18] In addition, Ms. Grant-Jury was in charge of the Training Center’s annual budget. This fact allowed her to incorporate herfraudulent needs into a seemingly endless money source so as to allow the Training Centre to appear to be running efficiently while shecontinued her deception. This presents as an interesting parallel to her home life vis a vis the Training Centre, as she was able toeffectively run her home without any detection from her family as well.

More will be said about this in due course. [19] Lastly, Ms. Grant-Jury destroyed evidence of her crime. The destruction of evidence was integral to her deception, in that shedestroyed parts of receipts so no one knew how her employer’s money was spent. Not only did this process make it difficult to detect hertheft, there was tremendous cost and manpower expended to complete a forensic audit of her spending, which included having to verifyexpenditures with third party businesses.

Even after that was done, several days of court time was required to further determine whatcould be attributed to the fraud beyond a reasonable doubt. While the final amount determined by the Court was less than initiallyalleged and Ms. Grant-Jury was within her rights to contest the amounts alleged, the fact remains that it was Ms. Grant-Jury who

destroyed the receipts in order to evade detection. This fact partially illustrates the level of sophistication utilized in this case. [ 20 ] At the end of the day, the degree of sophistication, planning, skill and deception involved in the present case is high. When compared with many of the cases reviewed, the present case compares very closely with the actions of the offender in R. v. McConnell, 2011 ONCJ 476 . Therefore, Ms. Grant-Jury’s actions in this regard indicate a high degree of moral culpability. o Whether the sole motivating factor is greed [ 21 ] Ms.

Grant-Jury has maintained that the motivation for her offending was an addiction to gambling. An addiction to gambling could be considered to equate to greed as a motivating factor. “Greed” is defined by the Meriam-Webster dictionary as, “a selfish and excessive desire for more of something (such as money) than is needed”. At first blush, one might surmise that greed is a motivating factor to gambling. The Court accepts that Ms. Grant-Jury used her personal finances to gamble and used her work credit card to sustain her family’s lifestyle.

That lifestyle seems to have been a middle class to upper middle class existence, consistent with Ms. Grant-Jury’s healthy salary. Does Ms. Grant-Jury’s desire to maintain the status quo at home and continue to gamble amount to greed? [ 22 ] Ms. Grant-Jury described her affliction with gambling as an addiction. No professional opinion was offered to support this contention. This will be discussed in greater detail in due course. However, in testifying about gambling, Ms. Grant-Jury did focus on the draw of the sounds and sights associated with the video lottery terminals, and the feeling it gave to her.

The Court was never left with the impression that the purpose of gambling was to hit it big in order to live a lavish lifestyle. In fact, had that truly been the objective, she could have simply chosen to invest the fraudulently obtained money gained from using her employer’s money for her household expenses. At the end of the day, the fact that Ms. Grant-Jury appropriated her employer’s money can be attributed to a desire to hide her gambling from her family, as opposed for purely for greed. When viewed in this lens, the Court finds that Ms.

Grant-Jury’s gambling was not motivated by greed, which thereby amounts to the absence of an aggravating factor. o The length of the period of dishonesty [ 23 ] As stated, Ms. Grant-Jury’s fraudulent behaviour spanned from March 22, 2012 until December 31, 2015, just short of four years. This is a significant period of time when compared to the cases considered by the Court. o The number of dishonest transactions [ 24 ] Ms. Grant-Jury’s fraud is unique in that the individual amounts taken were relatively small monetary figures. However, there are over 350 fraudulent transactions posted by Ms.

Grant-Jury over the roughly four years of her wrongful behaviour. Each time Ms. Grant-Jury walked up to a cashier with her company credit card to pay for her personal expenses, she made a choice to commit a criminal act. There was ample time to contemplate her actions, to say the least. [ 25 ] The number of transactions and the period of time over which they occurred is a stark illustration of the high moral culpability that is associated with her actions. o The prospects of restitution [ 26 ] Although Ms.

Grant-Jury wishes to make good on restitution to the union, Defence counsel presented a bleak financial picture for Ms. Grant-Jury going forward. It is evident that, despite having an early spoken intention to pay the money back, no plan of action was ever formulated. Ms. Grant-Jury was unemployed for the better part of two years after her dismissal on account of this matter. She ultimately found a job for lesser remuneration, but by that time had fallen deeper into debt to credit card companies. The Court heard that she had to sell her wedding ring to generate income to live.

Notwithstanding this fact, her family has held onto their home as her husband’s income covers the mortgage. Nonetheless, there is no equity to use to pay restitution or make her situation more palpable. [ 27 ] Suffice it to say, restitution is not a feasible option at this time and will not likely be forthcoming in the near future. o Whether the offender voluntarily terminated the fraud as opposed to being caught [ 28 ] The circumstances of the termination of Ms. Grant-Jury’s activity coincided with the termination of her employment.

The Court heard that the accounting department became frustrated with the increasing number of truncated, non-itemized receipts being handed in by Ms. Grant-Jury, and reported it to Ms. Bruske. The fraud was discovered shortly thereafter and Ms. Grant-Jury was confronted. The Court notes that Ms. Grant-Jury initially denied any wrong doing and only admitted it once it was very evident that her employer had discovered what she was doing. o The risk of implicating other innocent parties [ 29 ] Ms.

Grant-Jury’s actions did not simply risk implicating others, her actions in fact lead to the suspension of her co-worker, Wanda McGorum. The Court has outlined the circumstances of Ms. Grant-Jury’s use of Ms. McGorum’s company credit card in previous factual findings ( supra, at paragraph 61). Sadly, due to the uncertainty as to who was involved in the fraud, Ms. McGorum was suspended. While no victim impact statement was received from Ms. McGorum, the Court has no difficulty inferring that Ms. McGorum would have been subjected to significant embarrassment and humiliation from the collateral damage of Ms.

Grant-Jury’s actions. o The impact on the victims [ 30 ] Ms. Grant-Jury’s actions had consequences to many people. The Court has already noted Ms. McGorum, but has also considered the Victim Impact Statement as submitted by Mr. Traeger (Exhibit s-28). [ 31 ] Ms. Grant-Jury’s position of trust was unique given the manner in which her employer was funded. Mr. Traeger articulated that the union and the employers must regularly achieve funding for the Training Centre through collective bargaining. He cited that the revelation of Ms.

Grant-Jury’s actions impacted the trust that must be fostered between the employer and union that money allocated to

the Training Centre will be put to good use. It is easy to see that Ms. Grant-Jury’s fraud caused damage to that relationship. [ 32 ] On a financial level, the loss of money directly impacts the ability of the Training Centre to serve the users. Furthermore, the investigation of this matter caused roughly an additional $53,000 expense through legal fees and forensic auditing fees for the union. [ 33 ] On an emotional level, it is clear that many people in the union movement held Ms. Grant-Jury in high regard. The discovery of this activity left many feeling betrayed and vulnerable. It is also noteworthy that Mr.

Traeger ultimately stepped down as president of the union by not seeking re-election after Ms. Grant-Jury’s crime came to light. It is clear that Ms. Bruske and Mr. Traeger both felt deep personal anguish over what their colleague and friend had done. o The quality and degree of trust reposed by the offender [ 34 ] Ms. Grant-Jury was entrusted with a very unique job. Over many years working in the labour movement, Ms. Grant-Jury ultimately attained her dream job working for the Training Centre.

In order to do so, she had to become a highly visible member of the labour movement, and as such spent countless hours volunteering and organizing many high profile endeavours. Ms. Grant-Jury worked at a high enough level that her employment was as closely tied to the governing political party as it was to the labour movement, as evidenced by her secondment to the Premier’s office. [ 35 ] In that context, Ms. Grant-Jury was left to manage the Training Centre as she saw fit.

In the Court’s decision above and in the previous factual finding ( supra, at paragraphs 8 – 10), the Court outlined the degree of trust she enjoyed by noting that she was able to manipulate budgets to account for her gambling. [ 36 ] At the end of the day, all of the aggravating factors that serve as a hallmark for breach of trust have been met in this case with the exception that greed was not the motivating factor driving Ms. Grant-Jury’s actions. Also, the aggravating factors identified in

section 380.1 (

b) and (

e) do not apply to Ms. Grant-Jury. The Court must consider each of the aggravating factors that do apply in determining the fit and appropriate sentence. The Mitigating Factors in this Case [ 37 ] As stated, the Court must carefully consider the mitigating factors for Ms. Grant-Jury. Twelve reference letters were filed on her behalf from many upstanding and very influential Manitobans. They portray Ms. Grant-Jury as a very committed and tireless volunteer, a dogged advocate, a competent leader, a dutiful employee, a trusted advisor, an energetic team player, a loyal friend and a competent parent and spouse.

The Court has no doubt that the views expressed by these citizens are genuine, and that they reflect the persona Ms. Grant-Jury built up over many years of hard work.

Section 380.1 (

d) requires that the Court not consider these factors as mitigating if Ms. Grant-Jury took advantage of her high regard in the community in order to commit the offence. It is difficult to disconnect all of her hard work from her employment as the two are so closely intertwined. There are attributes, such as her ongoing commitment to volunteer work, that cannot be completely ignored as mitigating, but at the same time her background illustrates the degree of trust required to achieve the position that Ms. Grant-Jury enjoyed in her workplace. [ 38 ] Ms.

Grant-Jury did plead guilty to the offence of fraud over $5,000 saving the necessity of a trial. Unfortunately, her sentencing hearing has very closely resembled a trial in that the Court was required to ascertain the extent of the fraud. As such, no court time was saved by the manner in which this matter has been litigated, and the guilty plea itself is a neutral factor for consideration. [ 39 ] The Court does accept that Ms. Grant-Jury is remorseful, although the extent of her remorse remains unclear. The Court has reviewed the report of Dr. Rutner, submitted by Defence counsel (see Exhibit s-64). Dr.

Rutner suggested that Ms. Grant-Jury is gaining some insight into her actions, but described her as tending to “disregard the potential or actual consequences of her actions as she compulsively acts out socially inappropriate behaviours which are at odds with her self image as virtuous and socially motivated”. Dr. Rutner added that Ms. Grant-Jury tends to “externalize blame, which results in compromised insight into her own motivations and behaviour.” The Court’s impression was consistent with Dr. Rutner’s, such that the Court queries whether Ms.

Grant-Jury’s remorse is related more towards the damages caused by her actions or her own fate going forward. [ 40 ] Ms. Grant-Jury has made partial restitution by way of a credit card payment when the fraud was discovered. That amount was $10,313.81, and represents the good intentions that Ms. Grant-Jury initially held at the outset. Sadly, circumstances have not allowed for further contribution nor has any plan been devised going forward. Nonetheless, the contribution represents mitigation of her circumstances. [ 41 ] What consideration should be given to Ms.

Grant-Jury’s affliction with gambling? [ 42 ] In R. v. Panzo (23 July 2018), Manitoba (Man. QB Ct.), Mr. Panzo appeared before the court asserting that his fraud was fuelled by his addiction to gambling. Like Ms. Grant-Jury, Mr. Panzo had not obtained a medical diagnosis that his gambling was pathological such that his moral culpability would be lessened. The court accepted that Mr.

Panzo’s behaviour had not been proven to reduce his moral culpability, but that it gave context to what motivated his behaviour (so as to contextualize whether greed could be considered as an aggravating factor, as the Court has in this case). A similar conclusion was reached by the court in Geary , supra , which seems to be supported in the conclusion of the Manitoba Court of Appeal in R . v. Gurske , 2017 MBCA 46 .

Therefore, while gambling afflictions have been accepted as a mitigating factor, some evidence is required to substantiate the compulsive nature of the addiction in order to ground a finding of reduced moral culpability. [ 43 ] Nonetheless, Defence counsel points out that addictions, in the form of alcohol and/or drugs are routinely considered as a mitigating factor in sentencing. While that may be the case, consideration in mitigation of sentence is routinely given where the addiction is established (which is often not contested), and a connection is drawn between the offence and the addiction.

For example, alcohol addiction may be a factor in mitigation of an assault in circumstances where the offender was intoxicated at the time of the offence. Similarly, in the case at bar, Ms. Grant-Jury’s addiction may only come into play in mitigation if a connection to the offence has been established and it was in operation at the material time.

[ 44 ] Defence has filed materials related to Ms. Grant-Jury’s gambling. Dr. Rutner’s report, that was written in 2018, sheds the most light on the presence or absence of a gambling addition. Without directly addressing the topic, Dr. Rutner referenced Ms. Grant-Jury’s “gambling problem” indicating he was aware that she felt concerned about the amount she gambled. However, Dr. Rutner does not conclude that there is a compulsive or pathological gambling addiction. Instead, the report draws the conclusions already referenced by the Court. The remaining materials indicate that Ms.

Grant-Jury has been seeing a medical doctor related to “depression/anxiety/gambling addiction”, and that she attended the Addictions Foundation of Manitoba and completed gambling sessions. These materials, neither individually nor in combination, establish a pathological addiction to gambling. [ 45 ] Defence counsel also asserts that the Court can and should accept Ms. Grant-Jury’s testimony that she has been a compulsive gambler going back to around 2014. Defence says that while it would be helpful to have a report confirming the pathological nature of Ms.

Grant-Jury’s affliction, it is open to the Court to make the determination without further evidence. While the Court could arguably do so, the Court must consider the entirety of the evidence. The Court has referenced the comments made by Dr. Rutner suggesting that Ms. Grant-Jury has tended to externalize blame as a way of avoiding responsibility. In the Court’s view, Dr. Rutner’s assessment calls the objectivity of Ms. Grant-Jury’s self-assessment into question. It is clear that Ms. Grant-Jury’s gambling was a problem during the material time and that problem provides context to why she offended.

However, the Court has insufficient evidence to conclude that her gambling is pathologically connected to the offence so as to diminish her moral culpability and therefore should be included as a mitigating factor in her sentence. In other words Ms. Grant-Jury has not established that her gambling program was pathologically problematic. [ 46 ] It is noteworthy that Ms. Grant-Jury did seek help for gambling since the offence.

Given that she clearly has a problem with gambling that has caused her considerable angst, her efforts to better herself and deal with this issue are commendable and do indicate a measure of remorse. [ 47 ] The Court has also heard that Ms. Grant-Jury has suffered from type 1 diabetes since age 20. Since the time of the offence it appears that she has suffered more significantly from complications of diabetes that has resulted in some toes being amputated. Her condition requires ongoing therapy, regular dressing changes and specialized footwear.

Defence counsel expressed a concern as to whether she would be properly cared for in custody, without offering any evidence as to what care is available in custody. Nonetheless, her diabetic condition is a concern and is mitigating to a degree. [ 48 ] At the end of the day, the mitigating factors that can be attributed to Ms. Grant-Jury for consideration in sentencing are: that she has contributed to society for decades by volunteering for charitable causes, she has made partial restitution, she has sought help for gambling, she has shown some remorse and that her health is compromised.

Her gambling addiction is a neutral consideration that provides context to her offending. Do Exceptional Circumstances Apply? [ 49 ] While the case law has established a range of sentences that is typical for breach of trust, it has also been accepted that the court may depart from the range where warranted, and in particular where there are exceptional circumstances. The Manitoba Court of Appeal has drawn some lines to assist sentencing judges as to when such a sentence may be imposed.

Exceptional circumstances apply where the principle of rehabilitation should be emphasized over the principles of deterrence and denunciation. Such circumstances can arise from the circumstances of the offence or the offender, or both, however, the totality of the circumstances must demonstrate that proportionality demands that rehabilitation move to the forefront (see R. v. Dalkeith-Mackie , 2018 MBCA 118 , R. v. Tran (A) , 2015 MBCA 120 , and R. v. Burnett , 2017 MBCA 122 ). [ 50 ] Defence counsel has suggested that Ms.

Grant-Jury’s circumstances amount to exceptional circumstances that justify departure from the accepted range of sentences for this offence. As stated, deterrence and denunciation are paramount sentencing principles in this case. The Court has already found that Ms. Grant-Jury’s impressive background and resume are not mitigating factors. Her gambling is a neutral factor in sentencing and her efforts to end her gambling affliction is laudable, but not so dramatic of a transformation that it overrides the necessity to focus on deterrence and denunciation.

There has not been a focused plan on restitution, nor can the Court say that there is a clear viable path to accelerate restitution such that an exceptional sentence is in order. Lastly, while her medical situation lends itself to sympathy, the law is clear that sympathetic circumstances do not amount to exceptional circumstances (see Burnett , supra ). In short, there is nothing before the court that justifies a sentence based upon exceptional circumstances.

Is a Conditional Sentence Available? [ 51 ] Prior to November 20, 2012, an offender could be sentenced to a conditional sentence for fraud over $5,000 where there had been a breach of trust. On that date, the Criminal Code was amended to preclude offenders convicted of this offence to be eligible for a conditional sentence order. [ 52 ]

Section 11(

i) of the Charter provides that any person charged with an offence has the right, if convicted and if the punishment has been varied between the time of the commission of the offence and the time of sentencing to the benefit of the lesser punishment. [ 53 ] Ms. Grant-Jury contends that the pre-amendment law should apply to her, given that the sworn information commences on May 11, 2011, and that the Court has determined that her offending commenced on March 22, 2012. Therefore, Defence argues that Ms.

Grant-Jury is entitled to the benefit of the most lenient sentence because her offending had commenced prior to the change in law. [ 54 ] This issue was considered in R . v. Chicoine , 2019 SKCA 104 , albeit with a different amendment related to a different offence. In that case, the court considered what is meant by “the time of commission”, and concluded that a crime is committed for the purpose of

section 11(

i) of the Charter when culpability attaches, or in other words when the accused has committed both the mens rea and the actus reus for the offence charged (see paragraph 46). This Court agrees with the rationale expressed in Chicoine . [ 55 ] In this case, Ms. Grant-Jury’s actual offending commenced on March 22, 2012. As of November 20, 2012, she had committed three fraudulent transactions (March 22, 2012, April 5, 2012, and August 21, 2012) totalling $2,771.54. Defence counsel suggests that her intention at the time was to convert as much money as she needed to feed her gambling addiction and was not confined to keeping

her crime below $5,000. Further, Defence suggests that the actus reus had commenced and was fluid such that the offence had been committed even if not complete. With due respect to counsel, Ms. Grant-Jury had committed fraud under $5,000 prior to November 20, 2012, not Fraud over $5,000. While the Court is certain that Ms. Grant-Jury was likely unaware of any amendments to the Code, and would not be phased by the change in the law, the Court cannot artificially find a way to rule that the offence had been committed as of November 20, 2012.

As such, a conditional sentence is not an available sentence to her. [ 56 ] It should be noted that regardless of the above finding, a conditional sentence order is not appropriate for Ms. Grant-Jury. It has been long noted that the abuse of a position of trust will tend to result in a custodial sentence (see R. v. Pierce , supra ). The Court has noted the many aggravating factors in this case, and the relatively few mitigating factors. There is a lack of exceptional circumstances, and there is no reason to depart from the range of sentences deemed to be appropriate by the jurisprudence.

Simply put, the need for deterrence and denunciation here is high such that a conditional sentence order is inappropriate. What is the Appropriate Sentence? [ 57 ] The sentence imposed must be proportionate to the circumstances of the offence and the degree of responsibility of the offender. Ms. Grant-Jury was a high functioning and highly regarded leader of the labour movement who used $131,097.04 of her employer’s money to sustain her household after depleting her own personal finances through gambling. [ 58 ] Ms.

Grant-Jury does not have significant prospects for restitution however, in this Court’s view, she is liable to the union to pay back the money she took. Therefore, there will be a stand alone order of $131,097.04 less restitution paid of $10,313.81 equalling $120,783.23. [ 59 ] The Court has noted the unique features of sentencing that apply to breach of trust cases. Deterrence and denunciation are the paramount sentencing considerations. However, the Court must exercise restraint, and consider that Ms. Grant-Jury is a low risk to reoffend and has solid prospects for rehabilitation.

She is also blessed with a strong support network. The Court finds that the circumstances of the offence warrant a high provincial jail sentence. Given the mitigating factors and the prospects for rehabilitation, the Court is satisfied that a 15-month jail sentence is a fit and proportionate sentence for Ms. Grant-Jury. “Original signed by:” ROLSTON, P.J.