2015 QCCQ 8910, 2015 QCCQ 8910

Unofficial English Translation R. c. Thibault 2015 QCCQ 8910 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC "Criminal and Penal Division" No.: 200-01-139761-096 DATE: September 30, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE CAROL ST-CYR, J.C.Q. ______________________________________________________________________ JS-0865 The Queen Prosecutrix v.

Lise Trudel Thibault Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ I – INTRODUCTION [ 1 ] On December 8, 2014, after thirty-three days of trial, the accused Lise Thibault pleaded guilty to six of the eight counts against her. [ 2 ] The first three counts were for breach of trust (s. 122 Cr. C .) and fraud (s. 380 ( Cr. C .) totalling $411,247 against the Government of Canada.

These offences took place between January 30, 1997, and June 7, 2007, when the accused was Lieutenant Governor of Quebec. [ 3 ] Three other similar charges concerned offences that took place during the same period, and involved the Government of Quebec, which unduly reimbursed her in the amount of $231,345. [ 4 ] Given the rule against multiple convictions, a conditional stay of proceedings was ordered on the charges of forgery (s. 367(

a) Cr. C .) and use of forged documents (s. 368(1)( a )(

c) Cr. C .). [ 5 ] The indictment followed two audit reports from the Auditor General of Quebec and the Auditor General of Canada on the claims for reimbursement of expenses, fees, and salaries submitted by Lise Thibault during her term.

[ 6 ] The findings of these reports triggered a joint investigation by the RCMP and the Sûreté du Québec; following a pre- investigation, an information against the accused was authorized. [ 7 ] After her guilty plea, the parties made their respective submissions and sentencing was postponed until September 30, 2015. II - BACKGROUND

A) The function of the Lieutenant Governor [ 8 ] The Constitution Act, 1867 sets out the foundations for what has come to be known as a “constitutional monarchy” in Canada [1] and provides for the creation of the position of Governor General, who exercises powers conferred by recommendation of the Prime Minister of the country. It also creates the office of Lieutenant Governor for each province. The Lieutenant Governor is appointed by the federal government and acts as an agent of the Governor General with the provincial governments.

In other words, like the Governor General, who represents the person of the sovereign, the Lieutenant Governor also directly represents Her Majesty for provincial purposes. [ 9 ] The Lieutenant Governor’s term ranges from five to seven years and includes both a constitutional and ceremonial role. [ 10 ] In constitutional terms, the Lieutenant Governor is considered the Chief Executive Officer of the province and the representative of lawful authority in Quebec, [2] although in actual fact political powers are exercised by the governments.

In short, the Queen reigns through her agents, but she does not govern. [3] The Lieutenant Governor’s presence is felt primarily on the level of protocol. [ 11 ] Upon the Lieutenant Governor’s appointment, he or she receives an information package [4] detailing his or her duties and responsibilities, his or her interactions on the federal and provincial levels, the manner in which his or her functions are to be performed, and the administrative support and salary to which he or she is entitled. [ 12 ] The text specifies that if the Lieutenant Governor needs advice or guidance, queries may be addressed to Rideau Hall (Office of the Governor General), the Department of Canadian Heritage, or the Office of the Prime Minister of Canada and the Prime Minister’s cabinet (Privy Council).

Each of these resources may provide information to help the Lieutenant Governor fulfill his or her responsibilities. [ 13 ] While highlighting the dignity and duties of the office, the text notes that the Lieutenant Governor must use tact when exercising his or her power and establishing relationships other than those required by his or her functions.

Given that they are entrusted with public responsibilities and required to meet the high standards of morality that society demands from its government representatives, Lieutenant Governors must act in a reserved manner and avoid any real or apparent conflicts of interest in their relations and activities. It is also strongly recommended that they not take

part in private fund-raising campaigns. [ 14 ] Although the guidelines make it clear that patronage, in the sense of support and encouragement offered to valid initiatives, is a legitimate function of the office, Lieutenant Governors must ensure that the organization seeking their services is serious.

Any request for patronage must originate from the organization and not the contrary. [5] [ 15 ] In short, these instructions clearly demonstrate that the Lieutenant Governor is responsible for any action or behaviour that may be considered inappropriate or illegal and that are not justified by the office. [ 16 ] With regard to royal immunity, authors Brun, Tremblay and Brouillet state: [ translation ] The Governor General and the Lieutenant Governors are not viceroys and do not benefit from the same immunities as the Queen.

They may be sued for their civil and criminal wrongs but not for acts committed in the performance of their duties. [6]

B) The role of the federal government [ 17 ] The information package also contains information about the financial resources allocated to the person occupying this office. [ 18 ] In this respect, there are two distinct eras. Before April 2004, aside from the salary, which was taxable, there were two types of grant.

First, there was an amount transferred directly to the Lieutenant Governors to cover his or her expenses incurred receiving guests in the context of official duties, within the territory of the capital where his or her cabinet was located; this amount was designated as “in capital city expenses”. [ 19 ] A second grant covering “out of capital city expenses” reimbursed expenditures made outside the capital city in the exercise of official duties. [ 20 ] These reimbursements required that the holder of the position sign a certificate attesting that the expenses had been incurred in the exercise of official duties.

This was a crucial document for Heritage Canada, as it constituted the only actual evidence that the expenditures had been made for this purpose, with the Lieutenant Governor’s signature essentially attesting to the accuracy of the document. [7] [ 21 ] As of April 1, 2004, the reimbursement system was modified. The “in capital city” and “out of capital city” categories were fused into a single, fixed amount referred to as “designated grants” that set aside $45,600 for the first category and $101,772 for the second.

This new formula means that, at the beginning of each year, the Lieutenant Governor’s cabinet must provide budgetary forecasts

for its needs for the year. At the end of the year, it must produce a report attesting that the expenses were incurred for the official purposes forecast in the budget. This amount is distributed in three payments throughout the year and managed by the cabinet.

C) The role of the provincial government [ 22 ] In 1996, the Government of Quebec put an end to the tradition of providing the Lieutenant Governor with an official residence. Since then, it has assumed the costs related to the general management of the Lieutenant Governor’s cabinet, including employees’ salaries, office costs, transportation, security, and other expenses related to the office.

Thus, with this change, a $4,000 housing allowance and $800 for official expenses are paid to the Lieutenant Governor monthly. [ 23 ] The Lieutenant Governor is responsible for the administration of the office and thus authorizes the payment of his or her own claims as well as those of the cabinet’s employees. These claims are sent to the Ministère du Conseil exécutif, which makes payments from the budget allocated by Parliament and the Treasury Board.

The credits thus made available allow the Lieutenant Governor to take on the duties conferred upon him or her by law. [ 24 ] The Lieutenant Governor is accountable for the amounts allotted to him or her, and the Ministère is merely a payer and has no relationship of authority with the Lieutenant Governor and does not evaluate the appropriateness of an expense, since the holder of this office is not considered to be a government employee. [ 25 ] Moreover, the Ministère had no access to the accused’s calendar or to the various scenarios prepared by her cabinet for official events. [ 26 ] There was no communication or conciliation process between the federal and provincial as to what each level of government had to pay. [ 27 ] Only the word of Lise Thibault and the credibility of her office were of any import.

According to the evidence, there was no reason to doubt her integrity. [8]

D) Lise Thibault’s term and her misappropriation [ 28 ] Lise Thibault’s appointment as Lieutenant Governor for the Province of Quebec took effect in January of 1997. She remained in office until June 7, 2007. [ 29 ] The evidence reveals that the accused was greatly involved in the role assigned to her, indeed, much more than her predecessors had been. The certificates she produced indicated significant expenditures that suggested a great number of official activities. [ 30 ] In 2001, she created the Lise Thibault Foundation with the purpose of subsidizing various activities for persons with reduced mobility.

Funding for this foundation was ensured primarily by the organization of golf tournaments and the sale of artwork in silent auctions. [ 31 ] Several amounts of money paid by the federal government were used for family or personal purposes but presented as requests for reimbursement under the guise of official activities, certified by the accused.

Other amounts paid by the Government of Quebec were used for, among other things, expenses incurred to operate the foundation or additional remuneration for the head of security during sporting events. [ 32 ] These are the unjustified reimbursements, paid over a number years, that gave rise to the charges in this case. The evidence adduced at the sentencing hearing reveals that this was how she swindled a total of $429,676 from the two levels of government. III - POSITIONS OF THE PARTIES

A) Position of the defence [ 33 ] Relying on detailed evidence [9] and extensive case law, counsel for the defence insisted on the principle of individualization and suggests a sentence of twelve months to be served in the community, with an order for reimbursement of $310,000 under

section 738 Cr. C ., in accordance with his client’s ability to pay. [ 34 ] While admitting that the accused occupied a position of trust, her counsel noted that most of the criticized expenditures were made in the exercise of her duties. [ 35 ] Her main goal was to raise the profile of the Lieutenant Governor by becoming very socially involved, illustrated by, among other things, the creation of a foundation to promote sports activities for persons with limited mobility.

Over the years, this foundation has distributed over $1 million. [ 36 ] Counsel for the accused argues that society in a way benefited from her work and she did not truly enrich herself personally. Although the offences are spread out over ten years, there are no elements of premeditation or extensive planning, as are often noted in fraud cases. [ 37 ] She is an elderly person, 76 years old, with an irreproachable past who, in addition to her handicap, suffers from serious health problems. [ 38 ] Lise Thibault cooperated well with the police investigation and her guilty plea, albeit tardy, is a mitigating factor.

She presents no risk of reoffending.

[ 39 ] Her counsel insists that the Court take into account the very strong stigma from which the accused has suffered and still suffers today due to the media coverage. [ 40 ] Finally, her counsel presents evidence to demonstrate that Lise Thibault has a certain ability to reimburse the two levels of government, which should also be considered in sentencing.

B) Position of the prosecution [ 41 ] The prosecution, citing a large number of judgments, considers the fact that the accused took undue advantage of the reputation for integrity she enjoyed in the community. For the prosecution, her acts constituted a flagrant case of breach of trust that should, in the interests of denunciation and general deterrence, be reflected in the imposition of a sentence of incarceration.

From this perspective, the prosecution suggests a four-year penitentiary sentence. [ 42 ] In addition, relying on an accounting document [10] describing the amount of the losses suffered by the two levels of government, he seeks an order for reimbursement of $92,000 to the provincial government and of $338,000 to the federal government. [ 43 ] In the alternative, counsel for the prosecution suggests the application of paragraph 462.37(1) Cr.

C. concerning the forfeiture of the proceeds of crime, although he does not identify such proceeds precisely. [ 44 ] While admitting that the accused Lise Thibault has an unimpeachable past, given the office she occupied, she had a duty to be an example for society.

The administrative rules were clear, and she deliberately circumvented them. [ 45 ] Finally, in the view of the Crown, a sentence to be served in the community does not meet the criteria of denunciation and general deterrence that society is entitled to expect as a response to this type of offence when it is committed by a person occupying such a prestigious position. In its view, the consequences of such a sentence would ultimately not be sufficiently significant. IV - PRINCIPLES AND OBJECTIVES OF SENTENCING [ 46 ] As the Supreme Court of Canada states in R. v.

Nasogaluak : [11] “The determination of a ‘fit’ sentence is ... an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case”. [12] [ 47 ]

Section 718 Cr. C . provides: The fundamental purpose of sentencing is to contribute ... 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; (

f) to promote a sense of responsibility in offenders, and particularly acknowledgement of the harm done to victims and to the community. [ 48 ] In the determination of a just and appropriate sentence, the judge must also bear in mind that the fundamental principle of a sentence is that it must be proportionate to the gravity of the offence and to the degree of responsibility of the offender (s. 718.1 Cr.

C .). [ 49 ] Another fundamental principle the Court must consider is that the sentence must be adapted according to the aggravating or mitigating circumstances relating to the commission of the offence or the offender’s situation (s. 718.2 Cr. C .). [ 50 ] In 2004, Parliament intervened with regard to the offence of fraud, increasing the maximum sentence from ten to fourteen years. This statutory amendment is relevant to the assessment of the objective seriousness of the fraud offences. [ 51 ] As author Clayton C.

Ruby writes, maximum sentences provide guidance to judges when assessing seriousness: The gravity of the offence is reflected in the maximum penalty provided for each offence by Parliament …. The maximum penalties set out in the Criminal Code are intended to give rough guidance respecting Parliament’s view of the gravity of the offence. [13] [ 52 ] More specifically, in fraud cases,

section 380.1 of the Criminal Code enumerates circumstances that may be characterized as aggravating: the magnitude, complexity, duration or degree of planning of the fraud committed and the fact that the offender took advantage of the high regard in which he or she was held in the community. On the other hand, the Court must not consider the offender’s employment, employment skills or status or reputation in the community to be mitigating circumstances if they were relevant to, contributed to, or were used in the commission of the offence (s. 380.1(1.1)

(2) Cr. C .). [ 53 ] Moreover, in R. v. L.M . [14] the Supreme Court stated that sentencing is an individualized process, the exercise of which is eminently discretionary: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s

competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr .C .) To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : [ 54 ] In R. v. Proulx [15] Lamer C.J. describes the objective of denunciation as the expression of society’s condemnation of the offender’s conduct. He quotes himself in R. v.

M. (C.A.) : [16] [17] In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74 , at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. [ 55 ] He continues: [81] The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [17]

A) Factors to assess the offender’s responsibility [ 56 ] In R. v. Juteau , [18] Proulx J., for the Court of Appeal of Quebec, reiterated the criteria set out in R. v.

Lévesque [19] for defining the degree of responsibility of an offender in fraud cases, while emphasizing the aggravating factors of dishonesty manifesting as breach of trust. [ 57 ] It is appropriate to consider these factors here and apply them to the facts in evidence. ➢ The nature and scope of the fraud. [ 58 ] At trial, the witness Jacinthe Senneville tendered her expert accounting report dated August 31, 2013. [20] This report follows the one from February of 2009 and takes into account certain elements from the evidence by relaxing the assessment criteria in light of the fact that the Lieutenant Governor was the head of state of the province of Quebec. [ 59 ] The comparison between the calendars of Lise Thibault’s cabinet for the years 1998 to 2007 [21] and certain documents filed by the witness Marie-Claude Harvey [22] demonstrates that many expenses incurred by Lise Thibault and claimed from the two levels of government were not spent in the context of her official duties. [ 60 ] The witness Senneville classified the expenses under different categories to identify all those that should not have been claimed. [ 61 ] With regard to Heritage Canada, the claims relating to family activities or those with no connection to official activities allegedly cost taxpayers $411,288. [23] [ 62 ] We may cite, for example, the reimbursements for her daughter Anne-Marie’s party, her own sixtieth birthday party, visits to the sugar shack, vacations during school breaks, and family dinners.

There are also claims for out-of-province golf trips as well as fishing trips. [24] [ 63 ] Because Heritage Canada did not have access to the accused’s calendar even though it asked for it on several occasions, there was no way to verify the location and purpose of the claimed expense.

Only Lise Thibault’s certification in her capacity as Lieutenant Governor was taken into account. [25] [ 64 ] As for the Government of Quebec, it reimbursed $243,047, a large part of which was for expenses and salaries for the operation of the Lise Thibault Foundation. [26] Other payments were used for golfing or skiing activities, as well as shipping a golf cart to Florida. [ 65 ] The witness stated that the accused benefited from two sources of revenue for the reimbursement of work-related costs in her cabinet or activities within the capital, namely the federal “in capital city expenses” reimbursements and accommodation grant and provincial representation fees. [ 66 ] The accused profited by inflating her claims for “out of capital city” activities.

This strategy allowed to her deposit considerable amounts in her personal accounts. [27] In her statement to the police officers, she stated that she used those amounts to buy clothes, pay lawyers’ fees, purchase an RRSP, make mortgage payments on her personal residence in St-Hippolyte, and purchase five plots of land next to that residence in December of 2006. ➢ The degree of premeditation in the planning and implementation of a fraudulent scheme [ 67 ] While it cannot be said that the accused implemented a sophisticated fraudulent scheme, it is undeniable that, over the years, she acted in such a way as to be reimbursed for undue costs. [ 68 ] By refusing to submit her calendars and scenarios to Heritage Canada with her claims, the accused made it impossible for the Department to determine that some expenses could not be justified by the performance of her duties. [ 69 ] The testimony of Kevin McLeod [28] and Dorothy Uy [29] confirm the very special significance of the Lieutenant Governor’s

signature on the certification. This is a very important and very credible document, precisely because the Queen’s representative signs it. [ 70 ] Dorothy Uy stated that, at the time, the Lieutenant Governor of Quebec monopolised 50% of all the budgets available to all the Lieutenant Governors in the country. [ 71 ] In the past, she had been refused payment for accommodation fees for her two daughters.

To circumvent any problems on the occasion of her daughter Anne-Marie’s 40th birthday, she asked her administrator to write the following on a claim application: [ translation ] “Reception offered to mark the seventh anniversary of the appointment of Lise Thibault as Lieutenant Governor of Quebec”. [ 72 ] This demonstrates that by making the “event” official, the accused ensured that she would obtain reimbursement from the federal government. [30] [ 73 ] Her manoeuvres to disguise the real purpose of certain expenses continued until the end of her term in June of 2007.

Her actions were unlike those of the other Lieutenant Governors, who provided details for every event they attended and indicated the official duties they performed.

This culture of deceit meant that neither the federal nor provincial authorities knew about the existence of the Lise Thibault Foundation and were unaware that they were paying for this foundation’s activities and employees’ salaries. [ 74 ] She used deceitful certifications throughout her term as the cornerstone of her strategy. ➢ The conduct of the offender after the commission of the offences [ 75 ] During the police investigation, the accused Lise Thibault agreed to meet with the investigators at her home to provide them with her version of the facts along with certain documents. [ 76 ] Essentially, she stated that she has been socially and politically involved throughout her life, despite an accident which has confined her to a wheelchair. [ 77 ] Her appointment as Lieutenant-Governor gave her the opportunity to speak to citizens and publicize the office.

In her cabinet, she did not really concern herself with administrative matters, as she trusted the persons around her. She states that she would claim reimbursement for personal expenditures made for the cabinet from, among others, the last instalment of the designated federal grant. [ 78 ] After unsuccessfully seeking recognition that she benefits from absolute immunity and, subsequently, from relative immunity, the accused pleaded guilty on December 8, 2014.

Although a guilty plea may be considered a mitigating factor in certain circumstances, the Court finds that by the time she pleaded guilty, the accused was tardy in her acknowledgment of a certain responsibility for the actions alleged. She does admit the facts revealed through the evidence, however, and is aware of the consequences and states that she is ready to accept them. [ 79 ] Her regrets and remorse are also rather limited.

When she addressed the Court at the end of submissions on sentencing, she was more concerned about her image in the eyes of her loved ones than the wrong caused to the image of her office. [ 80 ] Today, because of the widespread media coverage of the events, she lives as a near-recluse in her home and receives medical care because of her anxiety attacks. [ 81 ] Through her counsel, the accused has offered to reimburse the two levels of government a portion of the amounts that she unjustly collected. [ 82 ] Thus, relying on the accused’s balance sheet dated April 15, 2015, [31] on a statement of Lise Thibault’s receipts and disbursements as borrower, [32] and on an undistributed balance of the Lise Thibault Foundation entitled [ translation ] “funds in transit”, [33] counsel proposes that she reimburse $310,000, although, basing himself on the testimony of Réal Cloutier in particular, he notes that the exact amount cannot be easily determined. [ 83 ] The Court considers the testimony of Réal Cloutier, who believes that the amounts unjustifiably received are closer to $250,000, to have little probative value.

The Crown evidence at trial and the document filed during submissions on sentencing [34] establish beyond any reasonable doubt that the loss incurred by the actions of the accused amounts to at least $429,676. [ 84 ] It should be recalled that a restitution order is a discretionary order that must not be considered a substitute for civil proceedings. It must also take into account the accused’s reality and express society’s condemnation of the offence.

It is an integral part of the sentence and must not be excessive, to ensure that it is neither unfair nor disproportionate. [35] Although the inability to pay does not preclude such an order, the ability to do so must be possible to ensure that this portion of the sentence is not illusory. [36] Moreover, the restitution order may be for a lesser amount than the loss, as this can avoid a long challenge. [37] [ 85 ] In R. v. Castro , the Court of Appeal for Ontario [38] analyzed the relevance of a restitution order.

Such an order must reflect the specific characteristics of the individual in each case, the nature of the offence, and what became of the defrauded money. When the offence involves breach of trust, the effect on the victims must be considered first, followed by rehabilitation. [39] In addition, in Legault v.

R ., [40] the Court of Appeal of Quebec wrote [ translation ] “that an order for restitution must be rendered with moderation and circumspection to meet the purposes and principles of sentencing, and in particular, reparation for the harm done, awareness of responsibility, and denunciation and deterrence”. [41] [ 86 ] In this case, the Court considers that the accused has not shown that she suffers from significant social or financial degradation. Thus, in light of the criteria and the evidence, the Court may consider an order for reimbursement in accordance with her financial ability.

➢ Prior convictions [ 87 ] The accused, who is 76 years old, has no criminal record. ➢ Personal benefits [ 88 ] As stated above, the accountant Jacinthe Senneville reduced the amounts considered to be unjustly paid by the two levels of government in light of the preliminary inquiry and the trial. [ 89 ] Aside from the salaries of the employees paid by the provincial government for the operation of the Foundation, the use over the years of the monthly provincial allowance and federal “in capital city” and “out of capital city” grants allowed the accused to benefit from income that was not justified by the performance of her official duties, thus significantly augmenting her patrimony. ➢ The nature of the authority and the relationship of trust between the offender and the victim [ 90 ] According to several of the witnesses heard, the very high degree of credibility assigned to the office of Lieutenant Governor is a hallmark of this case. [ 91 ] Federally, it was difficult to verify the accuracy and justifications of the amounts claimed.

The calendars, official activity scenarios, and guest lists were never provided by Lise Thibault’s cabinet, despite many requests from Heritage Canada to obtain them. [ 92 ] Micheline Ouellet-Rogers states that [ translation ] “the certificate signed by the Lieutenant Governor establishing that the expenses were incurred in the performance of her official duties was a crucial document for Heritage Canada”. This was the only evidence that the expenditures had actually been made for this purpose. [42] [ 93 ] On the provincial level, the same importance was assigned to Lise Thibault’s signature on the claims.

According to the witness Alain Lauzier, there was no reason to doubt the accused’s integrity or the relevance of an expense. [43] [ 94 ] The evidence reveals the significant weight assigned to the reputation for integrity that Lise Thibault enjoyed, which constitutes a particularly aggravating factor as recognized by the courts . [44] ➢ The motivation underlying the offence [ 95 ] In the accused’s statement and testimony, she stated that she gave herself the mission to publicize the office of Lieutenant Governor in the province and commit to a social cause, while remaining as close as possible to citizens, particularly those suffering from physical handicaps. [ 96 ] This was among her reasons for creating the Foundation, which seeks to raise funds for the installation of equipment in several ski centres in Quebec so that persons with limited mobility could practice this sport. [ 97 ] While laudable, this mission also allowed her to gain personal and monetary benefits, as the evidence reveals. [ 98 ] In short, Lise Thibault clearly did not have the means to fulfil her ambitions.

She gave herself a mission that exceeded her mandate. She took advantage of a system that, because the renown of her office, enabled her to achieve them. ➢ The fraud resulting from the appropriation of public funds earmarked to assist the disadvantaged [ 99 ] The Court recognizes that a large part of the money collected through the Lise Thibault Foundation was redistributed to persons suffering from a handicap. Although the objective of the Foundation is laudable, the money was obtained through the reimbursement of unjustified expenses to the detriment of all citizens. [ 100 ] In R. v.

Champagne , [45] Trudel J. stated: [ translation ] Because these are public funds, the misappropriation has the effect of impoverishing citizens or at least creating debt and thus undermining their confidence in their public, democratic institutions without which, however, a society would be unable to function. [ 101 ] In Corbeil v.

R ., [46] the Court of Appeal of Quebec, while varying a sentence rendered at trial, nevertheless reiterated some of Trudel J.’s considerations: [ translation ] [39] The nature of the offences committed by the accused is certainly such as to cause citizens to become disillusioned about politics. [40] In these troubled times where trust in our democratic institutions seems shaken, the courts must denounce and condemn acts that could undermine the fundamental values of our society. [ 102 ] In addition to analyzing other factors that might be considered aggravating or mitigating, the Court must take into account two more principles, namely, that of parity of sentences (paragraph 718.2(

b) Cr. C .) and, before considering the deprivation of freedom, the duty to consider the possibility of less restrictive sanctions if appropriate in the circumstances (s. 718.2(

d) Cr. C .).

B) Parity of sentences

[ 103 ] The Supreme Court of Canada [47] and, more recently, the Court of Appeal of Quebec [48] have stated that, owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. [ 104 ] Thus, the principle of parity tolerates a certain disparity in sentences imposed on offenders who have committed the same offence, depending, of course, on the circumstances of the case.

Similarity remains a question of degree, the analysis of which is based on the nature of the offences at issue, similarities in the personalities of the offenders, and comparable circumstances. [ 105 ] In R. v.

Antonelli , [49] the Court of Appeal of Quebec noted that, even if a sentence is on the spectrum of usual sentences for comparable offences, it is critical to ensure that it corresponds to the circumstances of the case. [ 106 ] As the Court of Appeal for Ontario stated: [50] [16] Sentencing "ranges" are useful in promoting the "parity" principle because they provide guidelines to trial judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders …. [ 107 ] Moreover, this is not an absolute principle that could become a rigid framework for the exercise of a judge’s discretion when applying the sentencing criteria such as, for example, the nature and seriousness of the crime or the characteristics of the offender. [51] [ 108 ] In all, the more alike the factors attributable to different accused, the more similar their sentences are likely to be; where the opposite is true, different sentences for identical crimes may very well be justifiable. [ 109 ] While the Court admits that there are few precedents for this case if any at all, it believes it is important at this stage to survey the sentences imposed by courts in cases of fraud and breach of trust involving persons in authority or occupying privileged political office or positions of trust.

These sentences may be divided into three categories: penitentiary sentences, provincial prison sentences, and sentences to be served in the community. ➢ Penitentiary sentences [52] [ 110 ] In this category, the range of sentences varies from twenty-six months to six years of incarceration in a penitentiary. [ 111 ] The common denominators in these examples are the amounts involved, the duration of the fraud, the high degree of sophistication, greed, breach of trust, the lack of reimbursement in many cases, and the significant impact on the victims. ➢ Prison sentences [53] [ 112 ] At the provincial level, the sentences range between twelve months and two years less one day of incarceration. [ 113 ] In this category of sentence, the courts can be seen to consider the aggravating factors of a high degree of moral culpability, the fact that the acts were deliberate and planned, and that significant amounts were often in play.

The most frequent reasons justifying a custodial sentence are breach of trust and the fact that the frauds took place over a relatively long period of time. Some accused present health or substance abuse problems, and often the risk of reoffending is low.

In several cases, reimbursements are made. ➢ Sentences to be served in the community [54] [ 114 ] This final category contains sentences ranging between twelve months and two years less one day. [ 115 ] An analysis of the judgments reveals that they generally involve few aggravating factors and there are often significant mitigating factors, which are highlighted in favourable pre-sentence reports. They rarely involve cases of breach of trust. There is no risk of reoffending, the duration of the crimes is relatively short, and the amounts defrauded are less significant.

Often, the methods used are unsophisticated and the root of the behaviour is rooted in a psychological disorder. [ 116 ] This overview of judgments on the three categories of sentences reveals that the range is very broad and reflects the specific circumstances of each case.

In cases of fraud committed by persons occupying a position of trust or responsibility, however, the common denominator is a sentence of imprisonment. [ 117 ] Once this premise is established, the Court must determine the duration of the sentence and, if appropriate, how it should be served. [ 118 ] The duration of a sentence is the initial stage suggested by the Supreme Court when determining whether to apply

section 742.1 Cr. C . [55] [ 119 ] The range of sentences in cases of fraud and breach of trust, crimes for which no minimum sentence is prescribed, is very broad. [ 120 ] In the search for a fit sentence, judges must weigh the normative principles set out by Parliament in the Criminal Code , namely: • the objectives of denunciation and deterrence (s. 718 Cr. C .); • the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr.

C .); • the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C .). [56] [ 121 ] After a review of all of the factors to be considered, and in light of the objective and subjective elements of the case, the Court

has concluded that a penitentiary sentence is not appropriate.

The reasons are the following. [ 122 ] The evidence does not ground a finding that the accused Lise Thibault implemented a sophisticated fraudulent scheme seeking to defraud the two levels of government. [ 123 ] Due to a certain lack of rigour in the administrative rules and because of her status, however, she abused a mechanism allowing her to claim reimbursement for expenses to which she was not entitled throughout her ten-year term. [ 124 ] The accused knew that some of her requests for reimbursement could not be considered to be for the performance of her official duties, but she knowingly submitted them with this characterization, thereby circumventing the administrative rules that had been explained to her.

This strategy enabled her to obtain substantial amounts of money for her own personal interest or that of her family. [ 125 ] Her motivation, however, was not merely personal benefit and greed.

Some of the amounts from government bodies were paid for the operation of the Lise Thibault Foundation, to which the accused was dedicated and which redistributed an appreciable portion of the amounts collected during public events to handicapped persons. [ 126 ] The accused, who has resigned from her office, is 76 years old, has no criminal record, presents no risk of reoffending, and demonstrates an ability to reimburse a portion of the amounts unjustly collected. [ 127 ] Based on these observations, the Court may further conclude that the accused does not present a danger to the safety of the community. [ 128 ] It therefore remains to be decided whether the sentence should be served in a prison setting or whether the conditions for the application of

section 742.1 Cr. C . are met and she is entitled to serve the sentence in the community. [ 129 ] It is clear that, given the aura of integrity attached to the position occupied by the accused, courts tend to prefer incarceration to emphasize denunciation and general deterrence. [ 130 ] Although it is recognized that a sentence served in the community may achieve both of these objectives, there may be situations where incarceration “will be the only suitable way in which to express society’s condemnation of the offender’s conduct”. [57] [ 131 ] As the Court of Appeal for Ontario pointed out in R. v.

Pierce [58] and R. v. Wismayer , [59] breach of trust by a person in authority may fall under this category. [ 132 ] In short, where it is possible to combine both punitive and restorative objectives, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals could be achieved through a conditional sentence. [60] [ 133 ] As for the accused’s health as a factor to be considered, in Côté , the Court of Appeal of Quebec stated: [ translation ] While it is true that an offender’s poor health may constitute a mitigating factor in sentencing, it generally does not constitute a factor that lightens the sentence, save in exceptional situations. ... [61] [ 134 ] In this case, although the accused’s health is fragile, in the eyes of the Court, it does not appear to be a necessary consideration in sentencing. [ 135 ] As for the stigmatization and opprobrium suffered by the accused Lise Thibault, it appears relevant to highlight the following elements. [ 136 ] Concerning the media coverage, the Court refers to the reasoning of L’Heureux-Dubé, J.A., as she then was, who wrote the following in Marchessault v.

R. : [62] [ translation ] In terms of what is suggested whenever a public figure, a person in authority, a celebrity, etc. commits a crime, all or almost all of the factors highlighted are present: the crime and punishment receive greater publicity, the shame and opprobrium are amplified accordingly, and the financial loss resulting from loss of employment is proportional to the elevated income. In this way, it is accurate to say that for such a person the punishment will appear crueler. As popular wisdom would have it, the higher they fly, the harder they fall.

Or, as a more elegant adage dictates, noblesse oblige . Of course, this is not the law, but the law does not ignore common sense, and what are characterized here as mitigating circumstances are actually inevitable consequences, and those who expose themselves to them in such circumstances must be ready to face them and must have been able to assess them, particularly where the offence is neither spontaneous nor isolated.

If this reasoning were not acceptable, it would be necessary, in the interests of consistency, to erect as a principle the fact that the higher the rank or office of a figure in society, the better that person is known, the lighter the sentence should be and, in contrast, the more humble or obscure a person is, the harsher it should be. I do not accept this proposition: the scales cannot accommodate these two unequal measures. Justice must be the same for all, important or insignificant, rich or poor. ...

The mere fact that the crime is committed by a rich or poor person, by an important or insignificant person, with all the attendant consequences, is not, in my view, one of these factors. Rather, these circumstances are non-aggravating. [ 137 ] The argument whereby the accused has received reasonable and sufficient punishment given the media coverage and ostracism

she has suffered leads us to affirm that, in the case of Lise Thibault, a large part of the significant media coverage she has received results from her own strategic decisions since her appearance. [ 138 ] She cannot use the legal means she is entitled to while simultaneously complaining of the fate the media has made her suffer. [ 139 ] The sentence must be proportional to the offender’s responsibility, for the purpose of, inter alia , emphasizing the nature and gravity of the crime, but also preventing or diminishing the disillusionment developed by citizens, and particularly taxpayers, with respect to the public institutions that are at the foundation of a democratic society.

As for denunciation and deterrence, it is important for the public to know that the conduct is highly reprehensible and that the criminal consequences are serious. [63] [ 140 ] As this Court noted above, citing the remarks of Lamer J. in Proulx , [64] “denunciation is the expression of society’s condemnation of the offender’s conduct”. The element of reproof that accompanies a sentence illustrates that the accused’s conduct goes against societal values. [ 141 ] Given the impact on privacy, incarceration would have a greater denunciatory effect than a sentence to be served in the community.

There are situations where incarceration is the only sentence that meets the requirements of denunciation and deterrence. [ 142 ] In such cases, however, a custodial sentence should be sufficiently measured to avoid excess. [ 143 ] As the Court of Appeal stated in Coffin : [57] In short, while a certain deference must be shown before imposing a custodial sentence based on the principle of general deterrence, the fact remains that such a sentence is justified in the present case, which involves large-scale fraud against the government by a person in a particularly privileged position. [65] [ 144 ] In R. v.

Bogart , the Court of Appeal for Ontario [66] illustrates the fact that, in many cases, courts have recognized that a custodial sentence is required to attain the objectives of denunciation and deterrence, even if the offender has no criminal record, enjoys a good reputation in his or her community, in some cases has reimbursed the victims, shows remorse, and is not likely to reoffend. [ 145 ] In that judgment, despite the existence of several mitigating circumstances, the Court concluded that granting a conditional sentence would be demonstrably unfit and ordered that the accused serve eighteen months’ incarceration for a fraud of approximately $1 million spread out over a period of seven years.

By the time of the hearing, the accused had paid back more than $200,000. [ 146 ] Regarding the fitness of a conditional sentence in cases of breach of trust, Proulx J., writing in Juteau , referred to Pierce , where the Court of Appeal for Ontario [67] stated that, in cases of dishonesty and particularly those characterized by breach of trust, the sentence must emphasize the gravity of the offence and a conditional sentence must be rejected. [68] [ 147 ] The Court of Appeal for Ontario adopted exactly the same principle in R. v.

Wismayer , [69] stating that general deterrence as a principle animating the refusal to impose a conditional sentence should be reserved for such offences. In the opinion of Proulx J., the primary objective is not only general deterrence but also just deserts and denunciation. [ 148 ] In the view of the Court, the Lieutenant Governor must at all times preserve the integrity and moral stature that inspire respect for political institutions in the population. As Claire L’Heureux-Dubé J. stated in R. v. Hinchey : [70] 18.

In my view, given the heavy trust and responsibility taken on by the holding of a public office or employ it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe. ... [ 149 ] First, from a constitutional point of view, the Lieutenant Governor sanctions the laws adopted democratically by the National Assembly.

Second, to succeed credibly in her social role and to make the office known, the Lieutenant Government had to maintain a reputation and integrity beyond any reproach. [ 150 ] This is what would have enabled the accused Lise Thibault to exert significant influence on society. She was under a duty to display transparency, prudence, and wisdom. The evidence, however, reveals that reality was far different. [ 151 ] In short, she did not realize the scope and significance of the office, forgetting that the primary role of a sovereign and his or her agents is to provide a good example to his or her subjects.

The authors Hogg, Monahan, and Wright state that: … the King was not regarded as above the law; on the contrary, he was regarded as under a duty … to give the same redress to a subject whom he had wronged as his subjects were bound to give to each other. [71] [ 152 ] Indeed, originally, the maxim “the King can do no wrong” meant that “The King was not privileged to commit illegal acts”. [72] [ 153 ] As noted by the witness McLeod, who was in charge of the Lieutenant Governor program between 2001 and 2005 for Heritage Canada, the Department assigned very special importance to the signature on the certification, as this was an important and very credible document because it was signed by the Lieutenant Governor as a representative of the Queen. [ 154 ] The presumption of integrity attached to the office of Lieutenant Governor allowed the accused Lise Thibault to benefit from amounts of money to which she was not entitled, and to do so for a number of years.

The Court considers that a sentence of imprisonment to be served in the community does not satisfy the penological objectives of denunciation and general deterrence with a view to preserving the confidence of citizens in public institutions. V – CONCLUSION [ 155 ] Bearing in mind the moderation the Court must display when imposing a sentence rendered with the objective of denunciation

and general deterrence and the fact that a restitution order is an integral part thereof, the Court orders the accused Lise Thibault to servea sentence of eighteen months in a custodial setting concurrently on each of her charges. [156] Under

section 738 of the Criminal Code, the Court orders: ▪ the reimbursement of $200,000 to the Government of Canada; ▪ the reimbursement of $100,000 to the Government of Quebec; [157] A period of six months is allowed for the payment of the victim surcharges. __________________________________ CAROL ST-CYR, J.C.Q. Mtre Marcel GuimontCriminal and penal prosecutor Mtre Marc LabelleCounsel for the accused Dates of hearing: December 8, 2014, May 1, 21 and 22, 2015

SCHEDULE A Penitentiary sentences ranging between 26 months and 6 years ▪ R. v. Gopher, 2006 SKCA 86 — The Court of Appeal for Saskatchewan imposed forty-two months’ imprisonment for fraud in theamount of $357,843. Over a period of twenty-one months, the accused misappropriated money earmarked for an Aboriginal group. Theaccused recorded these amounts as transportation and personal development expenses. He was 57 years old, expressed no remorse, didnot believe that his actions were criminal, and presented a risk of reoffending. ▪ R. v. Gyles, [2003] O.J.

No. 6249 — The Court sentenced the accused to two and a half years in a penitentiary on charges of breach oftrust and corruption by government officials. Although he had no criminal record in similar matters and was suffering from healthproblems, he expressed no remorse, did not recognize his responsibility and, because of the lack of explanation for his actions, simplegreed was presumed to be the recurring theme. ▪ R. v. McLaren, (SK KB), [1995] S.J. No. 565 (Q.B. Sask.) The accused received an overall sentence of three and ahalf years in a penitentiary on charges of fraud, breach of trust and theft.

This member of the provincial legislative assembly committedoffences involving over $1 million. Although he pleaded guilty, expressed remorse, was suffering from health problems, and had nocriminal record, these offences were clearly planned and carried out over a long period of time, and the sentence is necessary to maintainpublic confidence in the administration of justice. ▪ R. v.

Tickell, 2010 BCCA 303 – The Court of Appeal for British Columbia upheld a sentence of six years in a penitentiary for anindividual convicted of breach of trust and fraud after embezzling more than $960,000 while he was working for the Public Guardianand Trustee. The accused pleaded guilty and repaid the entire amount, but the fact that he had no criminal record was of littlesignificance as he would never have obtained this job if he did. The high degree of planning was also considered. ▪ R. v.

Cioffi, 2010 QCCA 69 – The Court of Appeal overturned a sentence of two years less one day to be served in the community,substituting a term of imprisonment of thirty-five months. The accused was the director of a bank branch when she authorized loans tofictitious persons. These crimes took place over a period of four years, and the bank suffered a net loss of $3.5 million.

Although theaccused had no criminal record, presented a low risk of reoffending, and personally lost $400,000, the Court took into account the notionof abuse of a position of trust in relation to the employer, the duration of the offences, the magnitude of the loss, the high degree ofpremeditation, the elevated number of transactions, and the fact that it was a complex fraudulent scheme. ▪ R. v. Dion, 2006 QCCQ 279 – The Court imposed twenty-eight months’ imprisonment on a charge of fraud in the amount of $340,000against a company for which the accused was a financial comptroller.

Despite the accused’s cooperation with the investigation, his guiltyplea, his lack of a criminal record, and the regrets expressed, the Court took into account the fact that it was an abuse of a position oftrust from which the accused drew a personal benefit. ▪ Wellman v. R., 2014 QCCA 524 – The Court of Appeal upheld a sentence of thirty months in a penitentiary for an accused whopleaded guilty to charges of fraud, forgery, and uttering forged documents. Over a period of three years, while he was treasurer for hisunion, the accused defrauded the union of a total of $890,000.

The accused was addicted to gambling and had reimbursed a total of

$386,000. Despite his guilty plea, the therapy he had begun, his lack of a criminal record, and his lowered risk of reoffending, the Courtconsidered the nature and extent of the fraud, the principle of abuse of a position of trust, the degree of premeditation, and the fact thatthe accused personally benefited from the fraud. ▪ R. v. Arseneau, 2006 QCCQ 278 – The Court ordered the accused to serve a sentence of imprisonment of twenty-six months on eachcount of fraud, which amounted to a total of $91,000.

The accused was an accounting secretary when, over a three-year period, sheappropriated $50,000 from the company for which she worked and $41,000 from a curling club for which she was secretary. Despite herlack of criminal record and her guilty plea, the judge took into account the nature and extent of the fraud, the duration of the fraud, theamounts involved, and the fact that reimbursement was impossible. The underlying motivation remained greed, and the fact that therewas abuse of a position of trust was also taken into consideration. ▪ R. v.

Allan, (ON SC) – The Court sentenced the accused to thirty-six months’ detention for crimes of fraud andbreach of trust. She was an administrator for the Ontario Works Program, which sought to distribute assistance to clients in need whowere living on the Aboriginal reserve. She created client files with false documents, reactivated terminated files, and then approved theissuing of cheques, which she cashed herself. The fraud amounted to $1,285,000. This sentence was imposed despite the fact that theaccused had no criminal record, pleaded guilty, and cooperated with the police officers.

No restitution was possible in her case. Theaccused occupied a high position of trust and defrauded the government for her own financial interest and that of her family. The fraudextended over a long period of time and involved a high degree of planning and sophistication. ▪ R. v. Primeau, 2015 QCCQ 2028 – The judge ordered the accused to serve a sentence of forty-five months and twenty-six days in apenitentiary on two charges of fraud totalling $439,638. The accused, director and majority shareholder in an investment company, had afiduciary duty toward his investors.

Nevertheless, he planned a wide-ranging fraudulent scheme to misappropriate certain amounts forpersonal purposes. The accused had no criminal record, pleaded guilty, was in therapy, and expressed certain regrets. Greed motivatedhis actions. ▪ R. v. Lento, 2010 QCCQ 1115 – The accused pleaded guilty to a charge of defrauding his union of about $500,000 over a nine-yearperiod. The Court imposed three years in a penitentiary despite his lack of a criminal record, pointing out that he had benefited from afavourable reputation, which he had used to mask his criminal conduct. ▪ R. v.

Seabrook, 2003 BCCA 427 – The Court of Appeal for British Columbia upheld a sentence of two and a half years for fraud in theamount of $679,000. The accused, who held shares in a real estate company, defrauded elderly people. The Court noted the high degreeof planning and the significant impact of the crime on the victims and imposed this sentence despite the accused’s lack of a criminalrecord. ▪ R. v.

Schneider, 2002 166 BCCA 206 – The Court of Appeal for British Columbia upheld a thirty-month custodial sentence and arestitution order for a real estate promoter charged with fraud in the amount of $679,919 for misappropriating funds that were intendedto finance a construction project. The Court also noted that it was a case of abuse of the public trust. ▪ R. v. Hadjor, (ON CA) – The Court of Appeal for Ontario upheld a two-year custodial sentence and a restitutionorder for an accountant who made false statements about his clients. He collected $400,000 for his own personal purposes and to savehis company.

The sentence was imposed despite his lack of criminal record. ▪ R. v. Dobis, (ON CA) – The accused, an accounting manager, defrauded the company for which he worked of $1.9million. Although he had no criminal record, the Court of Appeal for Ontario overturned a sentence of two years less a day to be servedin the community that had been imposed at trial, ordering instead a custodial sentence of three years in a penitentiary because the caseinvolved fraud of considerable magnitude committed by a person in a position of trust. ▪ R. v. Poirier,

(2001) J.E. 2001-2184 – The accused defrauded government authorities of approximately $3 million by preparingcounterfeit documents to obtain income tax reimbursements in the context of film investment. The Court of Appeal upheld a three-yearcustodial sentence, given the considerable amount of money involved, the number of persons affected, the period of time over which thecrimes took place, and the manipulative personality displayed by the accused. ▪ R. v.

Dickhoff, (SK CA), 1998 130 CCC (3d) 494 – The accused was convicted of committing fraud while he wasdirector of a trust company, when he took advantage of his position to borrow for himself and his companies without revealing hispersonal interest. The accused had no criminal record. The Court of Appeal reduced the custodial sentence from five to two years,relying on, among other things, the age of the accused, the fact that he had not profited from the frauds, and his exemplary conductduring his parole. He was, however, motivated by greed.

His crimes were committed over a period of four years and involved a greatdeal of planning, in addition to the aggravating factor of abuse of a position of trust.

SCHEDULE B Prison sentences ranging between twelve months and two years less a day ▪ R. v. Berntson, 2000 SKCA 47 – The Court of Appeal for Saskatchewan upheld a sentence of twelve months’ imprisonment for anaccused who was a member of the Legislative Assembly of that province. He faced a charge of fraud and breach of trust in the amount of$41,535. The crime consisted of false requests for reimbursement, where he claimed expenses for secretarial services provided by hisformer spouse, his current wife, and his children. He had made full restitution.

▪ R. v. Wilson, 2012 SPC 40 – The accused was sentenced to nine months in prison for fraud, breach of trust, and uttering of forgeddocuments for a total amount of $60,999. Over a period of four years, the Member of the Legislative Assembly submitted thirty-sixfraudulent claims. He was 56 years old, pleaded guilty, and expressed remorse. The sentence also included an order for full restitutionand eighteen months’ probation. ▪ R. v. Champagne, 2011 QCCQ 6419 – The accused pleaded guilty to fraud in the amount of $265,671, which she committed while shewas secretary-treasurer for the municipality of Ste-Eulalie.

She was 52 years old and had misappropriated the funds for her own personalbenefit. She was sentenced to fifteen months’ imprisonment and three years’ probation. ▪ R. v. Coulombe, 2012 QCCQ 4274 – The accused, a civil servant at the Government of Quebec’s Ministère des Transports, used forgedinvoices to collect $179,188.65 over a period of three years. When he pleaded guilty to breach of trust, he had reimbursed $90,000. Theaccused did not recognize his wrongdoing or take responsibility for his actions. The judge sentenced him to twelve months’imprisonment. ▪ R. v.

Collins, 2010 NLTD 7 – The accused, a member of the Newfoundland and Labrador House of Assembly, committed severalfraudulent acts over a period of six years, thereby enriching himself by $139,387.98. The Court sentenced him to twenty-one months inprison and ordered full restitution. ▪ R. v. Walsh, (NL PC) – The accused, a member of the Newfoundland and Labrador House of Assembly, madefraudulent claims. He was convicted of fraud and breach of trust totalling $159,316. The Court sentenced him to twenty-two months’imprisonment and ordered him to make restitution in the amount of $144,000 for the fraud.

It also sentenced him to twelve concurrentmonths and two years’ probation for breach of trust. ▪ R. v. Byrne, (NL PC) – The accused, a former Minister in the Newfoundland government, submitted forged,counterfeit, or duplicate expense claims and paid $18,125 in bribes. He used corruption to avoid detection. He pleaded guilty to chargesof fraud in the amount of $117,812, the amount that was considered inappropriately reimbursed, out of a total of $401,000. The Courtimposed a sentence of two years less one day in prison and ordered restitution of $117,812. ▪ R. v.

Anderson, 2009 NLTD 143 – The accused pleaded guilty to charges of fraud and breach of trust. Former member of the House ofAssembly and Minister in the Newfoundland and Labrador government, he admitted to forging expense accounts and claimingreimbursement for inflated expenses. He was 49 years old. For a fraud of $89,474.34, the Court ordered him to serve fifteen months’imprisonment and to make full restitution. It also sentenced him to nine concurrent months on the charge of breach of trust. ▪ R. v. Oates, 2008 SKQB 274 – The accused defrauded the government of Saskatchewan of $460,520.62.

He pleaded guilty,apologized, and took steps to address his gambling problem. The Court ordered him to serve fifteen months’ imprisonment, makerestitution in the amount of $433,920.62, and serve twelve months’ probation. ▪ R. v. Coffin, 2006 QCCA 471 – The accused pleaded guilty to fifteen counts of fraud against the Government of Canada for a total of$1,556,625. He occupied a privileged position and his acts were premeditated.

The Court of Appeal of Quebec sentenced him to eighteenmonths’ imprisonment, overturning the trial judgment imposing a conditional sentence of two years less one day of imprisonment, eventhough he had reimbursed $1 million. ▪ R. v. B.L., 2011 QCCQ 783 – The accused pleaded guilty to defrauding her employer of $630,000 when she worked as anadministrative assistant. The fraud took place between 2002 and 2006.

Although she had no criminal record and the risk of reoffendingwas low, the Court considered her abuse of a position of trust in relation to her employer, which required planning and premeditation, tobe a very aggravating factor. The Court sentenced her to two years less one day of imprisonment and three years of probation. ▪ R. v. St-Martin, 2013 QCCQ 6422 – The Court imposed a fifteen-month sentence of imprisonment followed by two years of probationon an accused who had embezzled $809,975 from his employer by granting fictional loans to fictional clients.

The evidence shows thatthe accused personally benefited from $402,247, using $104,428 thereof for personal purposes. He pleaded guilty, had no criminalrecord, and expressed regret and shame. The victim recovered $344,000 through civil suits. The judge found that the duration and extentof the fraud, the complex scheme, the abuse of a position of trust, and the accused’s personal gain were all aggravating factors. ▪ R. v.

Croteau-Ruthledge, 2011 QCCQ 1770 – The accused pleaded guilty to fraud against her employer in the amount of $123,000.The Court imposed a fifteen-month sentence of imprisonment, followed by three years’ probation, even though her risk of reoffendingwas low and she had no criminal record. The judge bore in mind the nature and scope of the fraud, the notion of abuse of a position oftrust, and her limited remorse. ▪ R. v. Savard, 2014 QCCQ 3153 – The accused, who was in charge of accounting, misappropriated a total of $135,600 over a period ofthirty-one months.

She pleaded guilty, offered reimbursement, presented a low risk of reoffending, and expressed regret. The Court tookinto account her prior convictions for theft, the total amount of the fraud and theft, the period over which the illegal acts took place, herabuse of a position of trust and authority, the fact that she also acted out of greed and thirst for profit, and imposed a sixteen-monthsentence of imprisonment with a restitution order of $70,000 followed by a two-year probation period. ▪ R. v.

Hartz, 2002 ABCA 108 – The Court of Appeal of Alberta upheld an eighteen-month sentence of imprisonment for an accusedwho had defrauded his employer of $123,860. This sentence was imposed even though he had no criminal record and suffered fromhealth problems. The Court found that his actions represented a significant abuse of a position of trust. ▪ R. v. Millward, 2000 ABCA 308 – This case involved an insurance broker convicted of fraud of $352,080. He had no criminal recordand suffered from health problems.

The Court of Appeal of Alberta quashed a twenty-month conditional sentence of imprisonment giventhe gravity of the offence and the abuse of a position of trust revealed by his actions, imposing instead a custodial sentence of twentymonths. ▪ R. v. Lam, 2005 BCCA 216 – The accused was a 56-year-old immigration consultant convicted of theft and fraud in the amount of

$256,250. He had no criminal record. The Court of Appeal of British Columbia upheld the twelve-month sentence of imprisonmentimposed by the trial judge. There was no order for reimbursement in this case. ▪ R. v. Wilson, (ON CA) – The accused, a physician, defrauded the hospital where he worked for a total amount of$900,000. He had paid $150,000 in restitution.

In light of the minimal restitution paid and the excessive importance given to the guiltyplea, the Court of Appeal for Ontario found that the sentence was not proportional to the gravity of the crime and that the case involved ahigh degree of responsibility and flagrant abuse of a position of trust. It substituted a custodial sentence of eighteen months for the two-year conditional sentence ordered at trial. ▪ R. v. Bogart, (ON CA) – This case involved a physician who pleaded guilty to fraud of $1 million against theOntario Health Insurance Plan over a period of seven years.

He had no criminal record, was suffering from bone cancer, and was takingcare of several patients with AIDS. He displayed a great deal of remorse. At the time of the accused’s appeal, he had repaid $200,000 ofthe $791,780.53 restitution order. The Court of Appeal for Ontario overturned the trial judgement that had ordered a sentence of twoyears less one day to be served in the community and substituted a custodial sentence of eighteen months. It pointed out that in cases offraud of this magnitude committed by persons in positions of trust, the most important factor to consider is general deterrence. ▪ R. v.

Pierce, (ON CA) – The accused falsified data in the accounting books of the company for which she workedand defrauded the company of $270,000. The Court of Appeal for Ontario reduced the initial sentence of twenty-one months to a twelve-month custodial sentence, given the minimal risk of reoffending. It pointed out, however, that this was a significant fraud that requiredplanning and dishonest methods, and that abuse of a position of trust must be denounced. ▪ R. v.

Bolduc, J.E. 2001-1666 (C.Q.) – The accused, a notary, pleaded guilty to theft committed against one of his clients to conceal afraudulent scheme that he was no longer able to manage. Despite his guilty plea, his lack of criminal record, his cooperation with thepolice forces, and his regrets, the judge sentenced him to two years less one day in detention and two years of probation in light of theneed to denounce abuse of a position of trust. ▪ R. v. Fehr, 2001 SKCA 37 – The accused was an accountant who defrauded his employer of $220,000.

Although he did not have acriminal record and presented a low risk of reoffending, the Court of Appeal for Saskatchewan overturned the trial judgment that hadimposed a conditional sentence of two years less one day and ordered him to serve a custodial sentence of eleven months. The crime tookplace over a period of ten years, was a case of abuse of a position of trust, and the objectives of denunciation and general deterrenceshould be prioritized. ▪ R. v.

Cénac, 2015 2015 3719 – The accused, who was in charge of accounting at a law firm, misappropriated $690,536.71 over athree-year period by using a very sophisticated fraudulent scheme. She pleaded guilty, had no criminal record, presented a low risk ofreoffending, and expressed remorse. The Court sentenced her to a custodial sentence of two years less one day in the interests ofdenunciation, just deserts, and general deterrence.

SCHEDULE C Sentences of imprisonment to be served in the community ▪ R. v. MacEachern, (PE SCAD) – The accused misappropriated $25,000 over three years while he was DeputyMinister of Agriculture for Prince Edward Island. On the charges of fraud and breach of trust, the Court of Appeal of that provinceincreased the initial sentence of twelve months plus eight months’ probation imposed at trial to fifteen months to be served in thecommunity and ordered him to make restitution of $25,000. The accused had a criminal record in similar matters. ▪ R. v.

Hurlburt, 2012 NSSC 291 – When he was a member of the Nova Scotia Legislative Assembly, the accused submitted fourfraudulent claims over a period of two years. He pleaded guilty and the amount of the fraud was reimbursed. On the charges of fraud of$25,320.77 and breach of trust, the judge sentenced him to twelve months to be served in the community and twelve months’ probation. ▪ R. v. Everitt, 2010 YKTC 91 – When the accused was mayor of Dawson, Yukon, he misappropriated $38,300 over a period of eightyears by submitting forged expense reports.

He pleaded guilty to a charge of breach of trust, expressed remorse, and was suffering fromhealth problems. The Court sentenced him to serve twelve months’ imprisonment to be served in the community and twelve months’probation, also ordering him to pay full restitution. ▪ R. v. Harvey, 2006 BCPC 444 – The mayor of the municipality of Vernon, British Columbia, pleaded guilty to breach of trust for usingpublic funds to pay his personal expenses. The amount of the losses amounted to $13,838.60.

The Court sentenced him to serve twelvemonths in the community along with one year of probation and to make restitution in the amount of $8588.60. He did not have a criminalrecord, recognized his wrongdoing, expressed remorse, and had himself paid damages of $5,250 to the city. ▪ C.J. v. R., (QC CA), J.E. 2001-1529 (Que. C.A.) – When the accused was Conservative Member of Parliament inOttawa, she required certain people to pay substantial amounts of money for help with steps they had taken with the government.

TheCourt of Appeal of Quebec sentenced her to two years less one day of imprisonment to be served in the community, considering that theactions were premeditated, even though the accused had no criminal record and was suffering from health problems. This sentencereplaced the sixty days in prison and the $10,000 fine ordered at trial. ▪ Corbeil v. R., 2010 QCCA 1628 – The accused held the position of regional coordinator of the Liberal Party of Canada and took partin a scheme that used forged invoices to have a number of cheques issued to the party organization. The accused pleaded guilty to

charges of fraud against the government and fraud, had no criminal record, presented a low risk of reoffending, and had profited verylittle personally from the fraud. The Court of Appeal of Quebec sentenced her to twelve months’ imprisonment in the community andimposed a $20,000 fine, in lieu of the fifteen months’ detention and the restitution order of $117,315 made by the lower court. ▪ R. v.

Lafrance, J.E. 2002-619 (C.A.) – The accused, a consultant at the Secrétariat à la restructuration du gouvernement du Québec,was convicted of receiving a benefit though various corporations to which he was directly connected. He was charged with breach oftrust, and the Court of Appeal overturned the eighteen-month prison sentence imposed at trial and ordered him to serve eighteen monthsin the community and pay a $10,000 fine. The accused had no criminal record and presented no risk of reoffending. ▪ R. v.

Amyot, J.E. 98-1186 (C.Q.) – The accused was charged with breach of trust and theft committed while he was the courthouse civilservant who acted as custodian for seized objects. This allowed him to steal between $30,000 and $50,000. Reimbursement wasimpossible, so the Court imposed a fifteen-month conditional sentence. The judge also took into account the fact that he had no criminalrecord, was addicted to gambling, felt remorse, and was experiencing many family and professional problems. ▪ R. v.

Jeannotte, (QC CQ) – The accused, a lawyer, pleaded guilty to fraud for having used $200,000 from herclients to pay her spouse’s drug debts. The Court sentenced her to a term of imprisonment of two years less one day to be served in thecommunity and two years of probation. She had no criminal record, was not in a position to reimburse the money, had favourablepsychological and presentence reports, and recognized her wrongdoing. ▪ R. v. Samson, 2013 QCCQ 95 – The accused defrauded the company for which she worked as an accounting secretary of $186,000over a two-year period.

She pleaded guilty, began therapy, and expressed remorse and regret. Despite a reimbursement of $28,000 and$5,000 from the insurer, the company suffered a significant loss. The Court imposed a conditional sentence of two years less one day,followed by three years of probation. ▪ R. v. Harvey, 2006 QCCQ 7143 – While he was director of a daycare centre, the accused defrauded this organization of a total of$220,000 over five years. He pleaded guilty, expressed great remorse, and began therapy to deal with his compulsive gambling. He hadno criminal record.

The Court imposed a conditional sentence of two years less one day, followed by three years' probation. ▪ R. v. Grondin, 2013 QCCQ 9968 – The accused, an employee of the Caisse populaire Desjardins, pleaded guilty to charges of fraud inthe amount of $195,000, which took place over a period of three years. The Court imposed a conditional sentence of two years less oneday and three years’ probation, taking into account her remorse and low risk of reoffending.

The Court considered her abuse of a positionof trust in relation to her employer, the employer’s significant monetary loss, and the duration of the fraud. ▪ R. v. Dufour, 2014 QCCQ 9885 – Over a two-year period, the accused defrauded her employer of $30,877 while working as areceptionist in a denturology clinic. She pleaded guilty, expressed regret, cooperated with the investigation, and displayed a willingnessto undertake different types of therapy.

Taking into account her abuse of a position of trust, the duration and amount of the fraud, theplanned and repeated acts, and the lack of reimbursement, the Court imposed a sixteen-month sentence to be served in the community. ▪ R. v. Bunn, 2000 SCC 9 , [2000] 1 S.C.R. 183 – The accused, a lawyer, defrauded some of his clients of $86,000, which hetook from his trust account. First, the Court of Appeal of Manitoba quashed the two-year custodial sentence imposed at trial and ordereda conditional sentence of two years less one day, which was upheld by the Supreme Court. The accused had no criminal record.

Threeminority judges stated that ordering a conditional sentence excessively reduced the harshness of the sentence when it was important toinsist on denunciation and general deterrence. ▪ R. v. Kirk, (ON CA) – The accused, a construction contractor, defrauded some of his clients of $42,000. The Courtof Appeal for Ontario overturned a trial judgment imposing nine months’ detention, stating that there had been no abuse of a position oftrust and that he presented no risk of reoffending. The accused had no criminal record.

The Court substituted the sentence with a twelve-month conditional sentence, but upheld the restitution order of $42,000. ▪ R. v. Toman, 2005 QCCA 1171 – The accused, who operated two companies, inflated his accounts receivable with the goal ofincreasing his credit margin with two financial institutions, thereby defrauding them of significant amounts of money. The Court ofAppeal of Quebec upheld the conditional sentence of two years less one day and the 240 hours of community work ordered at trial. Theaccused had no criminal record, was unable to repay the amounts defrauded, and presented no risk of reoffending.

The Court of Appealtook into consideration the fact that the accused had not established a scheme to defraud the public and that the wrongdoing took placeover a relatively short period of time, namely, six months. ▪ R. v. Alain, (QC CA) – The accused used fraudulent entries in the books of two corporations to misappropriatemore than $1.5 million in funds that should have been returned to investors. He pocketed $200,000 to which he had no right. He had nocriminal record.

The Court of Appeal of Quebec quashed a three-year custodial sentence imposed at trial, substituting a sentence of twoyears less one day to be served in the community. The Court empha

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