R. v. Lewis Date:, 2015 BCPC 388

Citation: R. v. Lewis Date: 20151210 2015 BCPC 0388 File No: 61307-2-c Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TONYA KRISTINE LEWIS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: G. Paruk Place of Hearing: North Vancouver , B.C. Date of Hearing: December 10, 2015 Date of Judgment: December 10, 2015

[ 1 ] THE COURT: Tonya Lewis pled guilty on June 10th, 2015 to seven counts of defrauding the Tsleil-Waututh Nation of monies. The dates of the offences are from November 2013 to April 2014. The total amount of money taken under the counts to which she pleaded guilty is $23,212.76. [ 2 ] Ms. Lewis is from the Squamish Nation and the Nanaimo Nation through her mother and father respectively. She was employed as the Manager of Education for the children and youth of the Tsleil-Waututh Nation.

The money she took should have gone to programming for those children and youth. [ 3 ] She was a trusted member of the management of the Nation. She was considered to be a personal friend to most of the staff. Instead, she was breaching their trust on a day-to-day basis. [ 4 ] She was aware of and manipulated the financial safeguards in place for the management of the victim's funds. Her methodology was sophisticated. The Nation believes that the total amount taken is much greater than the amount covered by the counts pled to. [ 5 ] She issued cheques to outsiders who cashed them and gave her the money.

She told the outsiders that she was doing this to exhaust any surplus before the financial year-end. These people were unaware that she was taking the money for her own purposes. [ 6 ] When she was first questioned about one cheque, she lied, but soon after confessed to taking the money. She advised them she had taken it and spent it due to a gambling addiction. Her employment was immediately terminated. [ 7 ] Ms. Lewis does not have a criminal record. However, in 2004, she was dismissed from employment with the Squamish Nation due to similar fraudulent activity in a similar amount.

She has not made restitution to the victim Nation in this matter. She did not make restitution in the earlier matter. [ 8 ] The Tsleil-Waututh Nation prepared a victim impact which was filed. It reads: [as read in] It is with great regret and disappointment that I write this letter on behalf of the Tsleil-Waututh Nation to be entered into the legal proceedings with respect to Tonya Lewis and the Tsleil-Waututh Nation file. We, the Tsleil-Waututh Nation, are highly disheartened by the actions of our former employee, Tonya Lewis, who worked for our Community Development Department as the Education Manager. Ms.

Lewis was entrusted to oversee education matters including the management of all education and youth program budgets. Ms. Lewis misused her authority, manipulated our internal financial systems, and breached the trust of her supervisor, colleagues, and the Tsleil-Waututh Nation leadership and community members. To date, we have not seen any accountability on Ms. Lewis's part and have had to deal with the ripple effects of the theft of significant amounts of youth and education program funding.

We have limited funding in our Service Delivery Department, Community Development, and work very hard for the funding we do get. We have a high accountability to our external funders and to ensure good standings with our funders. The Tsleil-Waututh Nation Council replaced the total amount taken by Ms. Lewis. This caused significant loss to our organization and we have been working hard to ensure the children, youth, and all members do not suffer much loss of program and service delivery as a result of Ms. Lewis's actions of theft and fraud. Not only did Ms.

Lewis's actions cause financial loss, it resulted in substantial distress within our staffing team. It took countless man hours to investigate, analyze and determine the layers of fraudulent activity taken by Ms. Lewis. The actual amount stolen is much greater than what was reported to the RCMP. These actions have had a significant impact on a number of staff and the overall organization and community of Tsleil-Waututh. Ultimately, the Tsleil-Waututh Nation would like the full amount to be paid back by Ms.

Lewis and also wants to ensure that due diligence is done and that other organizations are protected from this type of deceitful and unlawful action in the future. The Tsleil-Waututh Nation has a strong belief in healing and rehabilitation. If Tonya Lewis accepts full responsibility and were to be generally impacted by a treatment opportunity, we would be supportive of this alternative sentencing. [ 9 ] The Nation does not want to engage in a reparative or reconciliatory measures with Ms. Lewis. They are seeking restitution in full. [ 10 ] A presentence report was prepared. Ms.

Lewis elected to be a member of the Squamish Nation and has spent most of her life living on the Squamish lands on the North Shore. She has had two long-term relationships and has an 18-year-old daughter. Her first relationship was abusive. Her second marriage broke down shortly after the offences before the Court were discovered. Part of the reason for the marital breakdown was her gambling addiction. [ 11 ] Her great-grandparents and grandparents attended residential schools. Her mother experienced a chaotic and abusive upbringing. Ms.

Lewis's upbringing was characterized by poverty, alcoholism, violence, neglect and abandonment. [Omitted for publication]. At age 12, she was forced to leave her family home and then moved frequently including into her grandmother's home before settling with a cousin in Grade 11. She continues to experience guilt at leaving her younger siblings behind in such a harmful environment. [ 12 ] Ms. Lewis obtained her Grade 12 education and has taken some college courses in business.

She has also been employed for most of her adult life and I infer she is intelligent and capable. [ 13 ] Overall, the presentence report suggests that Ms. Lewis is habitually manipulative, secretive and deceitful. I find that she does

not fully appreciate the extent of these personality issues. I do accept that these traits developed as a coping mechanism which has allowed her to avoid dealing with her past trauma and to attempt to carry on with her life in a superficially functional way. She denies any abuse of alcohol. [ 14 ] Ms. Lewis has failed to attend for counselling to assist her to appropriately deal with the stresses in her life which lead her to gamble. She stopped going to one counsellor when that person wanted her to address the issues arising from her childhood.

She has not attended for treatment for her gambling addiction, and she failed to enter into a self-exclusion contract with B.C. casinos up to the time of the presentence report interview. [ 15 ] Ms. Lewis did not express an understanding of the extent of harm she caused by her offending behaviour. She did not express remorse for taking resources away from the youth in the community, for breaching the trust of the Nation generally, and the trust of all those with whom she worked and who considered her to be a friend.

Rather, her comments concerned her own loss of a rewarding position and friendships. [ 16 ] In court, Ms. Lewis expressed remorse and spoke of the shame she has experienced in the community.

She also advised that after the presentence report was prepared, she did enter into a contract of exclusion from casinos. [ 17 ] It is mitigating that she entered guilty pleas early on in the proceedings and made admissions at the time of the investigation. [ 18 ] Her aunt, Eileen Gus was present for the sentencing proceedings in the First Nations court and was the only collateral contact provided to the preparer of the presentence report. She is an important support for Ms. Lewis in the community and is prepared to assist Ms. Lewis in her rehabilitation. However, Ms.

Lewis has not embraced the need to move beyond suppressing and ignoring the trauma she experienced or to accept the opportunity the criminal proceedings have presented for her to begin to heal the emotional wounds inflicted during her upbringing. [ 19 ] The Tsleil-Waututh Nation do not wish to see Ms. Lewis incarcerated. Indeed, they suggested that a criminal conviction and suspended sentence would serve to meet their perception of a just sentence. [ 20 ] The Crown took the position that a conditional sentence in the range of 18 months to two years would be appropriate.

The Crown suggested the maximum period of probation be imposed following the conditional sentence order with terms to protect the public, encourage Ms. Lewis to make ongoing efforts at restitution, and to assist her rehabilitation. [ 21 ] Ms. Lewis submitted that a sentence at the lowest end of the range be imposed. [ 22 ] The nature of this offence is such that a jail term is appropriate. Ms. Lewis engaged in ongoing criminal behaviour involving a significant and highly reprehensible breach of trust. She stole money which should have gone to support children and youth, and squandered those funds gambling.

The amount of money is substantial and even more substantial when measured in light of the modest budget the Nation had for youth education and programming and the importance of that programming to the future of the Nation. [ 23 ] I have given consideration to Ms. Lewis's background and circumstances as an Aboriginal person and find that her moral culpability is reduced. As noted above, her compulsion to gamble and her personality issues are the result of that background. [ 24 ] The charges as laid allow for the imposition of a conditional sentence.

I find an appropriate range for a jail penalty for such an offence and offender is less than two years and an appropriate sentence of jail would be 12 months to 18 months. I find Ms. Lewis can safely serve her sentence in the community and will abide by any terms imposed. [ 25 ] According to the principles set out by the Supreme Court of Canada in R. v. Proulx , a conditional sentence may be longer than would have been imposed as a jail sentence.

The principles of general and specific deterrence, protection of the public, and denunciation can be met by imposing onerous and punitive terms such as a curfew and community work service. A community-based disposition will also assist in the rehabilitation of Ms. Lewis and will hopefully assist her to fully accept responsibility for her offences. [ 26 ] I find that protection of the public and the rehabilitation of Ms. Lewis requires that a lengthy period of probation be imposed following the conditional sentence.

The total length of time will also permit the authorities to monitor her efforts to make restitution to the Tsleil-Waututh Nation. [ 27 ] Ms. Lewis, if you will stand. [ 28 ] There will be a conditional sentence of 18 months followed by three years of probation. [ 29 ] You may be seated while I go through the terms. [ 30 ] These are the terms of the conditional sentence, Mr.

Clerk: • You must keep the peace and be of good behaviour and appear before the Court when required to do so. • You must notify the Court or your supervisor in advance of any change in your name, address, or occupation. • You must remain within the Province of British Columbia unless written permission to go outside the province is obtained from the Court or your supervisor. • You must report immediately after court today in person to the conditional sentence supervisor at 100 – 233 West 1st Street in North Vancouver, British Columbia, and thereafter as and where directed by your conditional sentence supervisor. • You must provide your current residential address to the conditional sentence supervisor and not change that without their prior written permission.

• You are to abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. • You will be bound by a house arrest curfew, and I will just pause to note that given compliance with all of the other terms of this order and progress in terms of your rehabilitation, I would certainly be open to revisiting the house arrest curfew as you proceed through the sentence and relaxing it as you go, but for the beginning it will be an absolute house arrest curfew.

So you may be outside your residence for the purpose of attending to any medical emergencies for yourself or any member of your immediate family and reporting to your conditional sentence supervisor as directed. • Your supervisor may give you written permission to be outside your residence for the purpose of going directly to any place of employment and working and returning home directly thereafter or – and I will hear you further on this, Mr.

Paruk – for two hours three times per week to attend to your personal errands, to attend to any counselling or programming, or to complete your community work service. [ 31 ] And moving on from the curfew: • You will perform 100 hours of community work service under the direction of and to the satisfaction of your conditional sentence supervisor or the community work service officer and complete same within the first 12 months of your period of conditional sentence.

Those community work service hours are to be done for the benefit of the Tsleil-Waututh Nation or the Squamish Nation. • You are not to attend to any premises in which games of chance are conducted and you are not to engage in any games of chance in any private setting. • You will make restitution to the Tsleil-Waututh Nation in the amount of $23,212.76. • You must advise your conditional sentence supervisor of any employment you are engaged in as well as contact information for your employer. • You must not engage in any employment in which you have access to or control over any of the monies of your employer. [ 32 ] Now, are there any other terms you would want to suggest for the conditional sentence? [ 33 ] MS.

ASHTON: I do not think there was a counselling term. [ 34 ] THE COURT: Oh yes, thanks, right. • You will attend for, accept and complete to the satisfaction of your conditional sentence supervisor any counselling to include but not limited to addictions counselling or trauma counselling. • You will seek and maintain employment and/or education at the direction of and to the satisfaction of your conditional sentence supervisor. [ 35 ] MS.

ASHTON: And just to clarify, Your Honour, with respect to the house arrest condition, for monitoring sake the two hours three times a week for personal errands I do not know if that should be pre-determined which two hours with the supervisor -- [ 36 ] THE COURT: Oh, I meant that to be with the written permission of the supervisor. That was not clear. Mr. Paruk? [ 37 ] MR. PARUK: Yes, if I can just have a moment, Your Honour. Yes, Your Honour, she does mention that she is assisting with the care of two young children as I understand it, plus her daughter -- [ 38 ] THE ACCUSED: Two stepchildren. [ 39 ] MR.

PARUK: -- two stepchildren, and that she does pick them up and drop them off so she is just hoping that the terms of the CSO would not prevent that. [ 40 ] THE COURT: Pick them up and drop them off, where, when? [ 41 ] THE ACCUSED: School, soccer, any kind of appointments, dentist, or whatever, yeah. [ 42 ] MR. PARUK: School, soccer, other normal activities, medical appointments, et cetera. [ 43 ] THE COURT: I would have to see something to establish her requirement to do that in the circumstances.

That might not be something that is viable for her to assist with any longer while she is serving the conditional sentence. [ 44 ] MR. PARUK: Okay. Perhaps as a first step she can discuss it with her CSO supervisor -- [ 45 ] THE COURT: Yes. [ 46 ] MR. PARUK: -- and then depending on that you can contact me. [ 47 ] THE ACCUSED: Okay. [ 48 ] MR. PARUK: There is one matter I do wish to raise though. The restitution portion that Your Honour mentioned, would that be a freestanding restitution order?

[ 49 ] THE COURT: There was going to be restitution both in the conditional sentence and the probation order and a stand-alone. They are not entitled to recover more than the total amount but I want her to be addressing the restitution. [ 50 ] MR. PARUK: Might I submit that in the CSO and the probation order, it be expressed as use your best efforts to make restitution in the amount of . . . [ 51 ] THE COURT: Oh, I see what you mean, yes. I think that has to be included. So it will read best efforts. [ 52 ] MS.

ASHTON: I am wondering, Your Honour, if we can't -- I understand the best efforts but if we can't put a minimum at least on it, at a minimum of x number of thousands of dollars every six months. [ 53 ] MR. PARUK: Well, she instructs me she is -- other than the child care which may not continue -- she does not have other income at this point. [ 54 ] THE COURT: There will be a stand-alone following the CSO and probation and I think what Mr.

Paruk has suggested is probably appropriate, simply that she will make her best efforts at restitution. [ 55 ] With respect to the probation, that again will be for a period of three years.

The terms will be that: • You are to keep the peace and be of good behaviour. • You will appear before the Court when required to do so by the Court. • You must report to a probation officer in person within 72 hours of the conclusion of your conditional sentence at 100 – 233 West 1st Street, North Vancouver, and report thereafter as and when directed. • You must provide your current residential address to the probation officer and not change that without their prior written permission. • You will make your best efforts to provide restitution to the Tsleil-Waututh Nation in the amount of $23,212.76. • You will seek and maintain employment and/or education at the direction of your probation officer. • You are not to enter any premises where games of chance are conducted.

You are not to participate in any games of chance in any private location. • You will attend for, accept and complete any counselling to include but not limited to addictions counselling or trauma counselling and complete same to the satisfaction of your probation officer. • The same term with respect to the employment will apply. So you have to provide your probation officer with the name and address of your employer and contact information. • You are not to engage in any employment in which you have the control – I am just paraphrasing, Mr.

Clerk – the control of or access to your employer's monies. [ 56 ] Any other terms that you would want to see on the probation? I still have to make the s. 738 stand-alone. [ 57 ] MS. ASHTON: And, Your Honour, I am wondering if you are intending on putting the restitution in that as well. [ 58 ] THE COURT: Did I not say that? [ 59 ] MR. PARUK: You did, Your Honour. [ 60 ] MS. ASHTON: Sorry, I missed it. [ 61 ] THE COURT: Okay. Mr. Paruk, anything further? [ 62 ] MR.

PARUK: No, nothing occurs to me at the moment, Your Honour. [ 63 ] THE COURT: Finally, pursuant to s. 738 of the Criminal Code you must make restitution to the Tsleil-Waututh Nation in the amount of $23,212.76. I expect Mr. Paruk has explained to you that that stands as a judgment, the same as if they had gone to trial and sued you for that money. So they can take as of this time any steps they wish to enforce that restitution.

However, whatever you contribute during the course of your conditional sentence or probation order will be accounted for and they cannot collect in total more than the entire amount. [ 64 ] MR. PARUK: Yes, with respect to the victim fine surcharge, she instructs me her income was variable and modest. She has applied for social assistance. [ 65 ] THE COURT: What would it be on this? Would it be $1,400? [ 66 ] MS. ASHTON: It would be $100 per count. [ 67 ] THE COURT: Yes, $1,400. I am waiving the victim fine surcharge.

I am finding that she does not have the ability to pay that without further ado because if she has got any money at all, it should go to restitution, not to the victims' fund, and so I will find it payable forthwith and if she cannot pay it, she is in default, one day concurrent on each count being served today.

[ 68 ] MR. PARUK: Thank you very much, Your Honour. (REASONS FOR SENTENCE CONCLUDED)