R. v. Leo Date:, 2017 BCPC 303

Citation: R. v. Leo Date: 20171016 2017 BCPC 303 File No: 62130-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BOBBI JO LEO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Sarbit Counsel for the Defendant: H. Chambers Place of Hearing: North Vancouver , B.C. Dates of Hearing: June 7 and September 8, 2017 Date of Judgment: October 16, 2017

Charge [ 1 ] The Crown proceeded by indictment but on a charge of fraud under $5000.00 which is an absolute jurisdiction offence with a maximum sentence of 2 years imprisonment. There is no minimum sentence and all forms of disposition are available. [ 2 ] The Information was sworn July 31 st , 2015. Ms. Leo entered a guilty plea on January 23 rd , 2017. A pre-sentence report was ordered on March 15 th and the sentencing proceedings occurred on June 7 th and September 8 th in First Nations Court. Circumstances [ 3 ] Ms.

Leo was in a managerial position and acted as bookkeeper and did payroll for the victim business. Between April 17 th and June 27 th of 2014, she used the corporate credit card to obtain cash advances totaling $2400.00. She also manipulated the electronic payroll system by adding hours to her payroll and extra pay periods without approval. The total loss respecting overpayment of salary is estimated to be $15,000.00. [ 4 ] The victim business was the Industry Council for Aboriginal Business (ICAB). It was a non-profit organization which connected aboriginal businesses with general industry.

When the offender joined the organization in the spring of 2012, it was thriving and continued to grow until her embezzlement of funds brought about its demise. There are two principals who were primarily responsible for developing ICAB. Marlene Christensen was involved in the early years and Brenda Ireland was in charge during the time that Ms. Leo was employed there. The closing of ICAB was a significant loss to the indigenous community as a whole. [ 5 ] Ms. Ireland trusted Ms. Leo absolutely and viewed her as her partner in the endeavor and as a friend. Ms. Ireland had known and greatly respected Ms.

Leo’s grandmother who was active in promoting indigenous rights and culture. As a result she welcomed the offender into her business and acted as a mentor to her. [ 6 ] In hindsight, Ms. Ireland believes that Ms. Leo manipulated her way into taking over the books by undermining a long time bookkeeper, putting a friend in that person’s position, and when that person left after only a few months, suggesting that she could do both her managerial duties and the bookkeeping. I do not find this to be established in evidence. [ 7 ] In late 2013, a client of ICAB was having difficulties with his books and taxes.

It occurred to Ms. Ireland that due to their expertise with the various rules relating to indigenous business and taxes, ICAB would be well suited to help client businesses set up bookkeeping systems. She agreed to provide this client with assistance in getting his business records organized to a state where he could retain his own bookkeeper. This was partly an exercise in kindness and partly a “test case” for a potential service model. Ms. Ireland’s position was that any work done by ICAB for this client for that purpose would be on a volunteer basis. [ 8 ] The emails in evidence make clear that Ms.

Leo was to perform a limited scope of work for the client in her role as an employee of ICAB consisting of an assessment of his needs, preparation of a task list, and then a referral to a bookkeeper who would perform those tasks. What I infer occurred thereafter is that Ms. Leo determined, without any apparent authority, to engage her daughter to do the work. A letter from her daughter says she spent 420 hours between November of 2013 and January of 2014 putting the client’s books in order. Ms. Leo suggests that she worked 200 hours on the same project.

For her daughter alone, this is the equivalent to full time hours for three months. It is difficult to comprehend how putting the books for an artist’s retail business in order could require this amount of hours. In any event, I do not accept that this extensive amount of work and potential expense was verbally authorized by either Ms. Ireland or the Board of ICAB. [ 9 ] Ms. Leo’s daughter and Ms. Leo were not paid for this work. Ms. Ireland said she may have orally agreed Ms. Leo could do some of the work and that her daughter could assist her. However, she says Ms.

Leo was well aware there were no monies in the ICAB budget to pay for any extra work. Rather, Ms. Leo would receive time off in lieu. [ 10 ] When Ms. Leo determined she and her daughter would not be paid, she took matters into her own hands and gave her daughter the money from the cash withdrawals on the credit card and some of the other monies embezzled. Ms. Leo kept the balance for her own purposes. [ 11 ] The sentencing hearing was adjourned to allow Ms. Leo to establish that she and her daughter were authorized to do extra work for the client and they had a reasonable expectation of remuneration for doing so.

Ms. Leo did not establish this as a mitigating factor to the balance of probability. An invoice was produced from August of 2014. It is a questionable invoice in that it does not reflect any work done by the offender’s daughter for the bookkeeping for the client but refers to the offender and other ICAB staff doing this work. It also indicates 28 hours were spent by Ms. Leo for the preparation of Records of Employment which should be able to be produced in a few minutes. This invoice was not paid due to the latter charge being included. [ 12 ] By August of 2014, the bookkeeper who had been in place when Ms.

Leo started work at ICAB had been re-engaged and Ms. Leo’s employment had been terminated due to the business being in such dire financial straits. The offender was to have provided the bookkeeper with records, including the corporate credit card statements, but prevaricated and never did provide them. I infer the offender was attempting to prevent the detection of her offence. [ 13 ] I do accept that Ms. Leo acted in good faith, although based on assumptions and an exercise of authority she did not have, when she engaged her daughter and worked on the client’s books herself.

I do not accept that she and her daughter spent 620 hours on the client’s bookkeeping. There is nothing in the evidence before me to suggest Ms. Leo took any reasonable steps to address her concerns about this issue in an appropriate and legal manner before deciding to begin embezzling funds from her employer. Victim Impact

[ 14 ] The impact to the community is not before the court except by inference from the victim impact filed by Ms. Christensen and Ms. Ireland. Ms. Christensen was heartbroken that the business which she founded and nurtured until 2011 foundered due to embezzlement by a trusted employee. She feels her reputation has been tarnished as a result. Ms. Ireland is coping with the loss of a business she was dedicated to and believed was an important organization which was contributing in a meaningful way to the success of indigenous businesses and peoples.

She is also suffering from the emotional impact of a breach of trust by someone she considered a personal friend and a colleague in the endeavor. Ms. Ireland invested $23,000.00 of her own money to cover the shortfall created by the embezzlement by Ms. Leo in an attempt to keep the business afloat. Ms. Ireland also feels her reputation in the business community has been tarnished by this offence. Antecedents of the Offender [ 15 ] Ms. Leo is 48 years of age. She has no criminal history. She was raised in an intact family with 5 other siblings.

She reports a positive upbringing free of any emotional, physical or sexual abuse. However, she went on to report that her father was an alcoholic who would physically abuse her mother when intoxicated. At times her mother had to remove the children from the home to protect them from their father. [ 16 ] Ms. Leo is of Lil’wat heritage. Her mother and grandparents attended residential school. Her mother has shared some of her experiences and in particular how unhappy she was and the negative impact the experience had on her ability to connect emotionally to her children.

Her parents left Mount Currie and she was raised in Vancouver. She enjoyed sports and Girl Guides as a youth but was not connected to her indigenous heritage. She graduated from high school and trained as a legal assistant, a medical office assistant, and obtained her Insurance Agent Certification. She has been employed and self-supporting throughout her adult life. She and her partner moved to Mount Currie in 2014 to be closer to family. Ms. Leo is now exploring and embracing her indigenous culture. [ 17 ] She has been in a relationship for 13 years.

She and her partner have an 11 year old child between them and three other children from previous relationships. Two are adults and one is 16 years old and continues to live with them. They have 5 grandchildren and Ms. Leo spends most of her free time involved in family related activities. [ 18 ] Ms. Leo has no health issues or substance abuse concerns. The Pre-Sentence Report and collaterals from Ms. Leo’s cousin and aunt suggest she is a generally positive person who is of otherwise good character. She and her partner are not in financial need and were not in need at the time of the offence. Ms.

Leo has found employment with the Mount Currie Band as an office coordinator and works part time at a grocery store. She is pursuing a communications course at BCIT. Aggravating and Mitigating Factors [ 19 ] This offence involves a breach of trust by an employee which is a statutorily aggravated factor. The offence also involved the breach of the personal trust of her employer, Ms. Ireland. Ms. Leo’s conduct was ongoing and sophisticated. Her offending conduct caused an important non-profit organization to fail which was a loss to all those indigenous people who were benefiting from the support of ICAB. Ms.

Leo does not accept responsibility for criminal conduct and continues to blame Ms. Ireland and the organization as a whole. [ 20 ] Ms. Leo entered a guilty plea but it was not early in the proceedings. She is a person with no criminal history and who is of otherwise good character. She reports feeling bad about her offending and regrets taking the money. Gladue Factors [ 21 ] Ms. Leo has been impacted by her mother’s and grandparent’s experiences in residential school and the assimilation policies generally.

Her father struggled with alcoholism and as a consequence she experienced family violence in her home life as a child. Her mother was unable to fully connect with her children emotionally. It is of note that Ms. Leo appears to normalize her experiences and there is no indication she has ever sought counselling to deal with having had an alcoholic parent. [ 22 ] I find her moral culpability is reduced to a limited extent. The offence itself does not arise as the result of issues in Ms. Leo’s life related to the impact of the assimilation policies on her.

She does not suffer from any substance abuse or mental health issues, trauma, dislocation from family or culture or poverty which could explain the failure in judgment which led to her offending conduct. She enjoyed a mostly positive upbringing, obtained a good education, and has had ongoing employment in high functioning and demanding jobs. She has been able to continue her relationship with her parents and extended family and has a happy home life with her nuclear family.

Positions of Counsel [ 23 ] Counsel for the Crown submits that a conditional sentence in the range for 4 to 6 months to be followed by probation is appropriate. They say a suspended sentence or conditional discharge will not meet the principles of general deterrence and denunciation. Counsel for Ms. Leo submits the court should consider the imposition of a conditional discharge with a restitution order under s. 738 in the amount of $2400.00 in favour of Brenda Ireland. The Law [ 24 ] I have considered all the principles of sentence set out in ss. 718, 718.1 and 718.2. In particular I have considered s. 718.2(

e) as it relates to aboriginal offenders. In determining a proportionate sentence for an offence of breach of trust involving embezzlement of funds by an employee, the court must give primary consideration to the principles of denunciation and general deterrence. [ 25 ] The cases relied on by the Crown with respect to a range of sentence for similar offences and similar offenders are R. v. De La Boursodiere , 2016 BCCA 300 , R. v. Steeves, 2005 NBCA 85 , R. v. Chaulk , 2005 NBCA 86 and R. v. Wilson , 2003 BCSC 414 .

In each of these cases, persons of otherwise good character who engaged in theft from their employer received conditional sentences of imprisonment. All except for Wilson received a 6 month conditional sentence. In Wilson , who was an aboriginal offender, a 20 month

CSO was imposed to reflect a large amount of money taken over a number of years. These cases support the range as submitted by Crown counsel. Analysis [ 26 ] In offences of this nature, an offender’s previous good character allows them to be placed in positions of trust where they have access to the funds of employers which in turn enables them to commit such offences. That same good character cannot then be given significant weight in mitigation of the offence. Ms.

Leo is a mature person with no personal challenges who chose to embezzle money from her employer rather than to attempt to deal in a businesslike manner with what she saw as unfairness. Ms. Leo had the skills and experience to have easily done so. Frankly, her offending conduct is inexplicable and her moral blameworthiness is high. [ 27 ] Breach of trust offences require the court give significant weight to the principles of general deterrence and denunciation. Absent exceptional circumstances, a jail sentence is necessary to meet these principles of sentence.

I do not find there are exceptional circumstances in this matter. In my view, it would be contrary to the public interest to grant Ms. Leo a discharge. Where general deterrence is the paramount sentencing principle, a conditional discharge is not appropriate (see: R. v. Foianesi , 2011 MBCA 33 at para 10 ). The court must send a strong message that such conduct will not be tolerated. [ 28 ] In all the circumstances, the court cannot be satisfied Ms. Leo will not re-offend given her lack of insight about the serious nature of her offence, her failure to accept responsibility, and limited remorse.

As a result, I find that the principle of specific deterrence is also engaged in this matter and I find it is necessary to promote a sense of responsibility in this offender. Any current or future employers of Ms. Leo should be aware of her criminal history. The public must be protected from the potential of further offending and Ms. Leo’s rehabilitative interests, in terms of the impact a conviction will have on her future employment opportunities, must be given little weight. [ 29 ] I find that in all the circumstances of this offence and this offender, Ms.

Leo should be sentenced to a conditional sentence for four months. That will not be followed by probation. Ms. Leo has been bound by terms of interim release for a lengthy period of time and has been compliant. There is no suggestion she has been other than law abiding since her offence was detected. She is not in need of any programming or counselling and there is no need for any terms to protect any victim or society at large. Ms.

Leo will be required to pay the victim fine surcharge. [ 30 ] I am declining to order restitution as the amount is uncertain and the organization to which it would be owed no longer exists. I regret that the law does not allow me to make such an order in favour of Ms. Ireland and that she will have to resort to the civil law to pursue damages from Ms. Leo. _______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia