r v. RONALD CASWELL, 2016 QCCQ 9821

R. c. Caswell 2016 QCCQ 9821 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY Criminal and Penal Division No. 460-01-027766-140 DATE: August 29, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

RONALD CASWELL Accused ______________________________________________________________________ DECISION ON SENTENCE ______________________________________________________________________ [ 1 ] Ronald Caswell pleaded guilty to the charge of having defrauded Georgette Rémillard of $23 350 over a period of approximately 11 months between 2012 and 2013, thereby committing a criminal offence. [ 2 ] The salient facts are the following. At the time in question, Ronald Caswell was involved in the administration of certain Canadian Legion establishments.

As such, he was the head of a number of sections in that organization. [ 3 ] Georgette Rémillard was the president of one of those sections, as had been her late husband. They had both been deeply involved in the Legion, which was especially close to their hearts. I understand that Ms.

Rémillard’s husband had died a few years before, leaving her with a small inheritance, in particular. [ 4 ] By making Georgette Rémillard believe that the branch of the Legion in which she was involved needed money, and by asking her to lend it to him, Ronald Caswell allegedly got $23 350 from Georgette Rémillard during the period in question. [ 5 ] None of the money was used by the Legion. All of the money was, in fact, used entirely to feed Ronald Caswell’s addictions to cannabis, cocaine, alcohol and problem gambling. None of the money was reimbursed.

I will come back to this. [ 6 ] Ronald Caswell is now 70 years old. He was involved in the automobile industry, specifically, in sales and mechanics, for a number of years. In 2001 and 2004, he reportedly experienced serious cardiac problems that prevented him from engaging in gainful employment. He allegedly stopped working under those circumstances and then became involved in the Canadian Legion. [ 7 ] The accused has a relevant criminal past that is relatively serious.

Between 1970 and 1988, he allegedly committed theft and fraud a number of times, and was also found guilty twice in relation to impaired driving incidents. [ 8 ] Heard at the time of submissions on sentence, he explained that those earlier crimes were related, like today, to his addictions. He stole and committed fraud to pay for those vices. His longest term of imprisonment was 3 months for theft in 1985. [ 9 ] Subsequently, there was a long break in his criminality, which reportedly resulted from a longer-term conjugal relationship. During that time the accused was purportedly sober and responsible.

The relapse occurred owing to his health problems, which apparently led to a drop in his income and the breakdown of his relationship with his spouse. At the time the crimes were committed, he was in the process of separating from his spouse, and he allegedly returned to his old habits. [ 10 ] Today, Ronald Caswell lives with one of his sons, his son’s wife and their young child. He receives only around $900 per month in government benefits.

He went bankrupt in recent years, notably in relation to another claim against him by the Canadian Legion, which apparently obtained a judgment against him according to which the accused allegedly “misappropriated” money between 2010 and

2012.[1] [11] According to the presentence report, the accused reportedly paid $125 per month in relation to this until February 2016. [12] I have also been informed that, in addition to his other health problems, the accused reportedly suffers from prostate cancer andis under treatment for it.

I note from the preceding, in particular in relation to the state of health of the accused, that it is not realistic tobelieve that he will hold significantly gainful employment in the future, no matter what he tells the Court. [13] Indeed, again during the submissions on sentence, the accused mentioned his desire to try to reimburse the victim to someextent and to return to work in the field of car sales on a part-time basis. Given the foregoing, I do not believe this is realistic. For thesame reasons, a sentence involving community work also seems to me completely unrealistic. [14] The victim, Ms.

Rémillard, is not wealthy. I have been told that she is 75 years old and followed the proceedings assiduously.She was present, but did not ask to be heard. Counsel for the Crown stated her position. [15] She had placed complete trust in the accused, and had agreed to lend money to the Legion, an organization which she firmlybelieves to have an essential mission of supporting veterans and their families. She said she had great difficulty speaking to her childrenabout these events and felt shame and embarrassment about having been duped. Even at this time, her children still do not know thewhole situation.

She claimed to experience major stress, anxiety and insomnia. It is obvious that, given her age and status as a retiredperson, she will not have the opportunity to recover the lost money through employment, for example. [16] In recent years, the Criminal Code was amended to deal with the scourge of fraud.

Some provisions were adopted specificallyto strengthen maximum sentences, for example, so that today it is not possible to consider sentences to be served in the community foroffences such as those to which the accused has pleaded guilty. [17] However, given the date the offences were committed, the accused can still receive the benefit of the lesser punishment (section11(

i) of the Canadian Charter of Rights and Freedoms). [18] The Criminal Code nonetheless says that certain factors must be taken into account as aggravating circumstances, in particular,the victim’s age (section 380.1(1)(c.1)). [19] The Québec Court of Appeal also established a very useful guide for determining the most appropriate sentence (Lévesque c.Québec (Procureur Général).[2] [TRANSLATION] - The nature and extent of the fraud as seen, inter alia, in the extent of the deprivation as well as the real financial loss suffered by thevictim. (R. c. Harpman (1990), (MB CA), 63 Man. R (2d) 78 (C.A.); R. c.

Blouin, J.E. 92-1452 (C.A.); Durand c.R., J.E. 92-740 (C.A.); R. v. Gruson (1963), (ON CA), 1 C.C.C. 240 (Ont. C.A.); R. c. Gorsy, J.E. 92-593 (S.C.)) - The degree of premeditation apparent, inter alia, in the planning and application of a system of fraud. (R. c. Dubreuil (1992) 49 Q.A.C.61, J.E. 92-1083 (C.A.); R. v. Black,

(1993) B.C.J. No. 964 (C.A.) (QL Systems); Durand c. R., J.E. 92-740 (C.A.); R. c. Harpman(1990), (MB CA), 63 Man. R (2d) 78 (C.A.); R. v. Tucker, April 2, 1991, Doc CA 011752 (Ont. C.A.)) - The offender’s actions after the commission of the offence; mitigating factors may be found in the repayment of the sums appropriatedthrough the commission of the fraud, cooperation in the investigation, and confession. (R. c. Dubois, J.E. 92-1455 (C.A.); Girard c. R.R.J.P.Q. 93-124 (C.A.); Kursk c. R., J.E. 90-1275 (C.A.); R. v. Sylvester, June 7, 1990, Doc. no CA 1126 88 (Ont.

C.A.) (Motion forleave to appeal to the Supreme Court dismissed on February 2, 1992, 22074, (1991), 46 O.A.C. 237 (note); R. c. Gaultier (1993), Doc.AR 92-30-00839 (Man. C.A.)) - The offender’s previous convictions; proximity in time with the offence charged, and the gravity of the prior offences. (R. c. Couture,(93-1062 (C.A.); Doumpa c. R., J.E. 91-1075 (C.A.); R. c. Nault (1988), 19 Q.A.C. 21; R. c. Charetan, J.E. 89-1516 (C.A.)) - The personal advantages derived by the offender. (R. c. Gros Brink

(1992) M.J. No. 416 (Man.C.A.) (QL Systems); R. c. Dubois, 92-1455 (C.A.); R. c. Couture, May 14, 1993, C.A. Québec 200-10-000002-936; Doumpa c. R., J.E. 91-1075 (C.A.) - The authority and trust existing in the relationship between the offender and the victim. (R. v. Harris (1992), 52 O.A.C. 178; R. v.Paterson (1991), 93 SASK. R. 315; R. v. MacKay (April 29, 1992) Doc AD - 0331 (P.E.I.C.A.); R. c. Blouin, J.E. 92-1452(C.A.); Durand c. R., J.E. 92-740 (C.A.); R. c. Harpman (1990), (MB CA), 63 Man. R. (2d) 78 (C.A.), R. c. Carré,J.E. 89-1515 (C.A.); R. v. Piché (1991), (SK CA), 97 Sask R. 16 (Sask.

C.A.)) - The motivation underlying the commission of the offence: greed, physical or psychological disorder, financial distress, etc. (R. v.Laycock (1991), (BC CA), 8 B.C.A.C. 21, 17 W.A.C. 21) - Fraud resulting from the appropriation of public funds reserved for helping persons in difficulty. [20] When these criteria are applied to Ronald Caswell, review shows that the victim’s loss is significant and that the magnitude ofthe fraud is great. It also occurred over a relatively long period (11 months) and through several separate operations.

There waspremeditation, although a high level of complexity was not shown. [21] After committing the offences, Ronald Caswell did not reimburse any of the money or even begin to do so. The loss wascomplete. However, in January 2016 (on his lawyer’s recommendation, according to page 2 of the report) he began to be followed by LaBoussole, an organization specializing in addiction. That step was taken more than 2½ years after the offences had been committed.[3] [22] As stated above, this was not the first time the accused had run afoul of the justice system in similar matters, although there had

been a long break in his criminality. Moreover, he was the only one who benefited from the money obtained by fraud, aside from thosewho were his sources of drugs, alcohol and gambling. [23] Lastly, it is obvious that the victim completely trusted him and that he abused that trust. He has expressed remorse in thisrespect. [24] On this basis, the Crown suggested a sentence of imprisonment of 12 months in a correctional facility, while the defencesuggested a sentence in the community. Each party filed precedents to support their position.

Very often, these decisions themselvesreferred to other decisions on the matter. [25] From these precedents, I note mainly that, in general, lighter sentences are given when the evidence shows that the victim didnot suffer significant prejudice, for example, when the fraud was smaller and committed against many people or a public body, or againsta victim to whom unrealistic returns were promised (see, for example, R. c. Tétreault,[4] R. c. Kordzian,[5] R. c. Benoit,[6] R. c.Adamczuk,[7] etc.). [26] In contrast, fraud committed against elderly, vulnerable people is generally punished severely.

MacGregor J. explained this asfollows in R. v. Bernard.[8] [35] The maximum sentence for fraud over $5,000 is 14 years of jail. The maximum sentence for failure to appear when prosecutedsummarily is six months in jail. In fraud cases in which the accused commits a breach of trust against a vulnerable elderly victim, theprimary sentencing objectives are denunciation, general deterrence and restitution. Reference to R. v. McNaughton, the 12th of April2001, a decision of the British Columbia Supreme Court, New Westminster Registry, X05912, and to the decision of R. v.

Kralik (2006),BCSC 1322, at paragraph 22. [36] Madam Justice Wedge, in the Kralik decision, quoted with approval the following passage from a decision of the Ontario Courtof Appeal in R. v. Nichols (2001), (ON CA), OJ 3220. The fraud committed by Nichols warranted a significant penitentiary term. Three considerations mentioned by the trial judge supporteda substantial sentence, the need to deter and denounce those who prey on the elderly and vulnerable.

In the trial judge's words, predatorswho target the weak, the sick, the elderly and the disadvantaged attract the most public opprobrium simply because such cowardlyconduct strikes at the core values of our society, mainly fairness and decency. Where large sums of money are involved and there is noprospect of recovery, the principles of public denunciation of the conduct and deterrence to others are the dominant considerations. [27] In my opinion, this is consistent with the dominant case law on this issue (R. c. Ostiguy,[9] R. v. Bernard,[10] R. v.Tremblay,[11] R. c. Cyndi Lee,[12] R. v. Singer,[13] R. v.

Cousineau,[14] R. c. Thouin,[15] R. v. Fagan,[16] etc.). [28] What sentence would therefore be most appropriate for the accused?

Taking into account his previous convictions, but also thesteps he is taking to break his addictions, his state of health, his resources and the circumstances as a whole, including the necessity oftestifying to public repugnance for those who take advantage of the goodness and generosity of vulnerable people to satisfy their vices,the accused is sentenced to 8 months in prison. [29] Upon his release from prison, the accused will be subject to 3 years of probation under, in particular, the conditions included inthe probation order, and must reimburse the victim at least $75 per month for the entire duration of his probation, given his limitedmeans and the fact that he paid $125 per month to his trustee during his bankruptcy. [30] The Court also orders the accused to reimburse Georgette Rémillard the total amount of $23 350 within 10 years, with aminimum payment of $900 per year. __________________________________ Serge Champoux J.C.Q.

Mtre. Karyne GouletCounsel for the prosecution Mtre. Danielle DontignyCounsel for the accused Date of hearing: June 23, 2016