R. v. Jacobs, 2022 BCPC 230

Citation: R. v. Jacobs 2022 BCPC 230 Date: 20221012 File No: 66529 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. KRISANDRA LENORE JACOBS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: J. Bird Counsel for the Defendant: J. Turner Place of Hearing: North Vancouver , B.C. Dates of Hearing: February 22, and 24-26, March 1-3, April 9, May 11, June 3, November 5, 2021, May 4, June 15, and September 28, 2022 Date of Sentence: October 12, 2022 I. Introduction

[ 1 ] This is the sentencing of Krisandra Jacobs, following her conviction of fraud, contrary to s. 380 of the Criminal Code . Ms. Jacobs defrauded the Squamish Nation (“Nation”) – of which she is a member – for over three years, taking over $855,000 of monies earmarked for the Nation’s most needy members. She did so while employed by the Nation as the head of the Communication and Band Manager Services Department and while serving as an elected co-chair of the Squamish Nation’s Council, one of two of the most powerful positions in the community.

There is no prospect of restitution. [ 2 ] I note that in my oral reasons, I failed to state that the maximum sentence for this offence is fourteen years imprisonment; see: s. 380(1) (

a) of the Criminal Code . II. The Parties’ Positions [ 3 ] The Crown says that a four-year jail sentence is appropriate. [ 4 ] The defence says that two years jail is the appropriate sentence. [ 5 ] The defence does not take issue with the Crown’s position that general deterrence is the paramount sentencing objective in a case such as this, in the usual course. Nor does the defence say that denunciation is not a relevant objective, usually, in such a case. [ 6 ] What counsel for Ms.

Jacobs says is that it is significantly mitigating that she is an Aboriginal offender, with relevant Gladue factors present, with a gambling disorder, such that the sentences apposite different kinds of offenders are too high and that a much lower sentence – unfit for other offenders – is appropriate for her. III. The Issue [ 7 ] What is the appropriate sentence for this offender, for this offence? IV. The Evidence & Case Law on Sentencing [ 8 ] The evidence before the Court on the sentencing hearing is: 1. Victim Impact Statement of the Squamish Nation, dated March 3, 2022; 2.

Gladue Report, dated April 1, 2022; 3. Pre-Sentence Report, (“PSR”), prepared for August 27, 2022; and 4. Forensics Report, dated August 22, 2022. [ 9 ] The Crown initially provided cases relating to three areas of the law: Gladue considerations; length of sentence for significant frauds, and appropriate sentencing principles. (Full citations of all decisions referred to in these Reasons are set out in an appendix, attached). Without reference to those citations, here, the Gladue- consideration cases are: R. v. Gladue ; R. v. Ipeelee ; R. v. Wells ; R. v. Collins ; R. v. Whitehead; R. v. McCook; R. v.

Hagen; R. v. D.R.P. and R. v. M.R.R . The sentence-length cases are: R. v Patrick; R. v. Chernoff; R. v. Elliott; R. v. Marr; R. v. Quinn and R. v. Beggs . The sentencing principles cases are: R. v. Warner; R. v. Friesen; R. v. Proulx and R. v. Boulanger . I also considered R. v. Solozano , referred to in Patrick . [ 10 ] The Crown also relied on R. v. Penttila ; R. v. Merkel; R. v. Twizell and R. v.

Mangat , in relation to the issue of a gambling disorder; (see: appendix for citations). [ 11 ] I have considered all of the trial evidence, counsels’ submissions, the evidence tendered at sentencing, and the cases set out above, in arriving at this decision. V. Circumstances of the Offence [ 12 ] The offence is described in detail in the Reasons for Judgment which will be posted on the Court’s website, along with these Reasons for Sentence, shortly. [ 13 ] Briefly, from April 1, 2011 through May 2, 2014, Ms.

Jacobs worked for the Squamish Nation as department head of the Communication and Band Manager Services Department, one of fourteen departments that provided services to the Nation. In that position, she had the authority to requisition cheques drawn on the Band Emergency Fund without a second signature. [ 14 ] The Band Emergency Fund was funded by Squamish Nation business activities and was a source of money viewed as a “last resort,” intended for and available to the most needy of the Nation – to cover rent; hydro; to help elders with expenses; to cover the costs of funerals. [ 15 ] As department head, Ms.

Jacobs created a method of obtaining cheques without any supervision, by simply sending a request to clerks at the Nation’s Department of Finance, requisitioning a cheque in a given amount, payable to her, with a brief statement as to the intended use of the funds. Her authorization, as department head, was sufficiently high within the Nation, as it was then structured, such that the Finance Department accepted that level of authorization as sufficient to release the Nation’s funds, based on Ms. Jacob’s cheque requisition. [ 16 ] Ms.

Jacobs created four hundred and twenty two (422) cheque requisitions, receiving that many cheques. The monies she took from the Squamish Nation exceeded $855,000. [ 17 ] During the offence period, Ms. Jacobs was also co-chair of the Band Council. The practical effect of occupying this position was that she was more powerful than the department head of the Nation’s Finance Department. She used that power to commit her fraud,

brazenly: she directed Finance Department staff to open their office on weekends and create cheques payable to her, without notice to or oversight by, the Finance Department staff including the department head of Finance. [ 18 ] When asked to meet with Finance Department managers to discuss her department’s budget, (as was required by all department heads), Ms.

Jacobs did not go. [ 19 ] When asked to provide details about the purported recipients of the monies she received, she refused to provide these details, concocting a story that the fund recipients sought confidentiality. [ 20 ] Given her power within the Nation, and her actions, I found that Ms. Jacobs knew that she could disregard the usual checks and balances in place by the Nation in regard to its finances, with impunity. Ms. Larsen, the head of the Finance Department, testified about the structure, noting that she was in a difficult spot to effectively monitor Ms.

Jacobs’ actions as Community and Band Manager Service department head because, as co-chair, Ms. Jacobs was Ms. Larsen’s boss and could fire her. [ 21 ] Not long before the offence period, Ms. Jacobs had opened up a second bank account, additional to her and her husband’s joint account. She deposited all of the cheques she falsely requisitioned into one of the two accounts, or she cashed them. [ 22 ] Ms.

Jacobs’ defrauding of the Nation began to lessen when a new Chief Operating Officer was appointed, in late 2013/early 2014, who was able to take steps to require proof of authentic need before cheques were issued. [ 23 ] Ultimately, the Band Council authorized an audit of the Band’s finances and Ms. Jacobs’ handling of them. [ 24 ] The findings of the auditor ultimately led to a police investigation, which led to these charges. [ 25 ] All of this took much time and expense. VI. Circumstances of the Offender [ 26 ] Ms. Jacobs is an Indigenous woman, a status member of the Squamish Nation on her mother’s side.

Her father is not Indigenous and played no role in her life. Her maternal grandmother was a member of the Lytton First Nation and her grandfather was a member of the Squamish First Nation. [ 27 ] With regard to her younger years, Ms. Jacobs was raised, along with her younger brother, by her mother and maternal grandparents; living on the Cheakamus Reserve in Squamish, a small community of four homes, from 1964 to 1982. Both her maternal grandparents attended residential schools. Her grandfather resorted to alcohol.

As a child, she was exposed to traditional values: her grandmother engaged in beading, leatherwork, and was knowledgeable about traditional herbs and medicines; her grandfather was a logger, hunter and fisherman; she viewed her grandparents as guardians of their Traditional Lands. There was collaboration and community. She described her childhood as “normal” and her family as “supportive.” She also, however, describes bullying by peers while at elementary and high school, largely in response to her Indigenous background.

As well, she described violence within the extended family because her father was not Indigenous. [ 28 ] In the Gladue Report, discussed below, she describes lateral violence and exposer to sexual violence as a child.

She describes to girls going missing, while she was growing up. [ 29 ] She graduated from high school and moved to North Vancouver, where she attended Capilano College and obtained a Business Administration Certificate and then, later, completed the diploma program in Recreation Leadership at Vancouver Community College. [ 30 ] She worked for the Squamish Nation for approximately twenty eight years, her longest role there being Communications and Band Manager Services department head, from 1997 to 2014.

As mentioned, she was elected a co-chair on Council of the Squamish Nation; this occurred in 1998. [ 31 ] According to the Victim Impact Statement, she was well paid by the Nation and she had prestige and trust in the community [ 32 ] Turning to her family life, Ms. Jacobs is currently single. While she has no biological children, years ago, she took on the responsibility of a twelve year old boy and raised him as her own; he is now an adult and the two remain close. She has a relationship with a young great-niece and intends to remain involved in that child’s life, going forward. [ 33 ] Ms.

Jacobs is now 58 years old. She has no previous criminal record. [ 34 ] Ms. Jacobs has suffered depression in the past. She has expressed shame and remorse with regard to this offence. She has been compliant on bail. She identifies strongly as a member of the Squamish Nation and hopes to reintegrate into that community. [ 35 ] Latterly, in the sentencing process, she has averted to a gambling disorder, which counsel on her behalf says is mitigating, as discussed below. VII.

The Victim Impact Statement [ 36 ] The Victim Impact Statement filed in this case presents as a statement of a victimized community, disclosing division and conflict within the community as a result of polarization arising from Ms. Jacobs’ actions. Her political stature in the community and the interplay between that power she held and her adverse impact on the Nation’s sense of good governance, accountability and oversight is set out in the Statement. The writer notes that Ms.

Jacobs owed a fiduciary duty to the Nation, as co-chair. [ 37 ] Further, the statement sets out the Nation’s Strategic Vision and Values, which include community, collectively, teaching and respect. The writer sets out that Ms. Jacobs breached these values, as well.

[ 38 ] The Statement describes Ms. Jacobs’ fraud as having lasting impact on the internal workings of the Nation and, as well, describes the financial impacts arising from the offence: the many thousands of dollars no longer available to a programme dedicated to help the Nation’s most vulnerable members – the homeless, the marginalized, the addicted, as well as the elderly.

Further, the Nation has spent nearly $100,000 in investigation costs; over $225,000 towards the forensic audit, which revealed her fraud, and over $10,000 in policy and law development costs. [ 39 ] The Statement sets out that during the offence period, Ms.

Jacobs was paid a “handsome salary” for her employment; that she was in a positon of “power and privilege” and took advantage of that to steal from her own people, funds that were meant to protect their most vulnerable. [ 40 ] The statement also notes that she enjoys the benefits of her own secured housing, living in a house on reserve provided for by the Nation, a benefit not available to almost half of its Members. [ 41 ] The statement reflects a profound impact of Ms.

Jacobs’ breach of trust, both as a high-level employee of the Nation and also as an elected official. [ 42 ] The Nation seeks a deterrent sentence, stating that it requires protection from future frauds, as do other First Nation communities. VIII The Law Regarding Sentencing [ 43 ] Sections 718 – 718.2 of the Criminal Code , along with relevant judicial decisions, set out the law that I must apply here. A. The purpose and objectives of sentencing [ 44 ] The purpose of a sentence is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

That purpose is achieved by imposing just sanctions that have one, or more, of the following objectives: • denouncing unlawful conduct and the harm done to victims or to the community caused by unlawful conduct; • deterring others, and deterring the offender, from committing offences; • separating offenders from the community where necessary; • rehabilitation; • to provide reparation, and • to promote a sense of responsibility in offenders and acknowledgment of harm done to victims or the community. (see: s. 718). [ 45 ] Sentencing is an individualized process.

A sentence must take into account the particular circumstances of the offender and the offence.

As a result, the significance of any one of these objectives depends on those circumstances. [ 46 ] In large-scale breach of trust cases, such as this one, generally, the paramount objective of sentencing is “general deterrence” – that is, to deter other people who find themselves in similar positions, from behaving in the manner that the offender did. [ 47 ] In Friesen , the BC Court of Appeal sets out that the objective of sentencing offenders who have breached a positon of trust and stolen from the person or entity that entrusted them is general deterrence of others who may occupy a similar position of trust in the future, “in priority to other considerations,” (at para. 11). [ 48 ] In Friesen , the Court observed that welfare fraud is the type of crime where a substantial jail sentence has a realistic prospect of deterrence.

The Court also referred to a light sentence as potentially acting as a “stimulus to similar dishonesty in others,” (both at para. 11). This is of particular note, as the Forensics Report reflects Ms.

Jacobs awareness of others’ mishandling of Squamish Nation monies (without reference to consequence), when she committed this offence. [ 49 ] In Boulanger , Judge Howard noted that an offender who is in a position of trust which gives them access to large sums of other people’s money often acts “methodically, deliberately and careful[ly]” to commit the crime, and thus has the time to pause and consider the question: “what are the prospective consequences of their actions?” In deterring such considered, unlawful conduct, Judge Howard concluded that the deterring answer to that question is “jail;” (para. 23). [ 50 ] General deterrence is of primacy because this type of crime is perpetrated by people who, previously, were of good character; that is how they get to assume the position of trust that they exploit; ( Patrick , para. 39). [ 51 ] Warner confirms that general deterrence is, usually, the primary sentencing objective in a case such as this, and sets out that denunciation is also an important objective; (see: para. 39 and Solozano , at para. 8). [ 52 ] The Forensics Report here describes Ms.

Jacobs’ referring to a previous fraud in the Squamish Nation community of two million dollars and her view that she had got “sloppy” with her practices as she saw that others were doing the same. Further, her perception of being undervalued and that others in the community were engaged in “questionable practices” is described as potentially having distorted her thinking and providing justification to commit the fraud. [ 53 ] This evidence is consistent with the sentencing objective of general deterrence being highly relevant in the circumstances of this case.

[ 54 ] Finally, the Aboriginal community victimized by Ms. Jacobs – of which she is a member – identifies the need for protection of it and other First Nations communities by means of a deterrent sentence; (see: the Victim Impact Statement). [ 55 ] Having considered all of the above, I am of the view that general deterrence is the paramount sentencing objective here. Denunciation is also of import, as serious harm has been done to the community, caused by Ms. Jacobs’ unlawful conduct. [ 56 ] Promoting a sense of responsibility in Ms.

Jacobs and acknowledgment of harm done to victims - the community - is also an objective I have considered. Ultimately, Ms. Jacobs will almost certainly be returning to her home on the Squamish Nation and rebuilding her life there; a sentence that has regard to this principle may assist reluctant members in the community accepting that reintegration.

Rehabilitation is always a factor to consider. [ 57 ] With all of this in mind, I am satisfied that in a case such as this, where there has been ongoing large scale fraud, significant breaches of trust and harm to the community, the sentencing objective of general deterrence, along with denunciation, remains at the fore. Consequently, I view the cases that the Crown relies on in support of its sentencing positon, discussed below, to be relevant guides to determine the appropriate sentence here. B. Sentencing principles:

section 718.2 of the Code i.) Aggravating/Mitigating Factors [ 58 ] The existence of mitigating factors or aggravating factors serves to decrease or increase the severity of a sentence; (s. 718.2(a)). Aggravating factors : [ 59 ] Under s. 718.2(a)(iii) of the Code , a breach of trust is a legislated aggravating factor. [ 60 ] Here, as noted by the Crown, Ms. Jacobs was in a position of trust, both as an elected Councillor and as a high-level employee.

The breaches were flagrant. [ 61 ] Evidence that the offence has had a significant impact on the victim, including a community victim, is aggravating. [ 62 ] Planning, deliberation and repetition are aggravating. [ 63 ] The monies taken were earmarked for the Nation’s most needy; many, no doubt, rendered vulnerable by the factors set out and requiring consideration here in relation to Ms. Jacobs, given s. 718.2(e), discussed below, and the reasoning in Gladue and cases following.

Mitigating factors: [ 64 ] The absence of a criminal record is usually a significant mitigating factor; however, in the case of a breach-of trust fraud offence, the mitigating value of prior good character is muted, given that, as noted above, the lack of criminal history is one of the factors that permits the offender to secure the positon of trust in the first place. [ 65 ] Ms.

Jacobs has some insight and sincere remorse. [ 66 ] She has been before the courts for a significant period of time. [ 67 ] As well, as a result of the division in the community and upset of community members - arising from her actions - she has experienced unpleasant treatment in the community while before the court on this matter. Absent mitigating factors, present in some other cases [ 68 ] I will refer to the absence of mitigating factors, present in some of the cases relied upon by the Crown. Clearly, the absence of a mitigating factor is a neutral consideration; it does not amount to an aggravating factor.

These include lack of a guilty plea and no prospect of restitution. ii. Parity [ 69 ] The principle of parity is that similar offenders should receive similar sentences for similar offences; (s. 718.2(

b) of the Code). [ 70 ] I have considered the principle of parity carefully here, as the cases relied upon by the Crown to support its position of a four year sentence do not involve Aboriginal offenders and s. 718.2(e.) of the Code makes it clear that Ms. Jacobs’ being an Aboriginal offender is a difference relevant to the sentencing approach to be taken. iii. Restraint of deprivation of liberty [ 71 ] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (s. 718(d)). v. Consideration of alternatives to jail, particularly in regard to aboriginal offenders’ circumstances [ 72 ]

Section 718.2(

e) provides the following: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[ 73 ] Ms. Jacobs does not say that a sanction other than imprisonment is reasonable in the circumstances of this case; rather, as noted above, she urges that the sentence should be less than what the Crown cases suggest, when particular attention is given to her circumstances, as an Aboriginal offender. [ 74 ] In this case, as discussed above, I have concluded that the primary objective of this sentencing is protective in nature through general deterrence of others, which, as exemplified by the cases discussed below, usually manifests in a lengthy jail sentence. I agree with Ms.

Jacobs that a sanction other than imprisonment is not reasonable in the circumstances of this case in that it would not properly address the fundamental principle of proportionality; (see: Patrick.) [ 75 ] In Gladue , the Supreme Court of Canada recognized as figuring prominently in the causation of crime by Aboriginal offenders, systemic and background factors specific to that part of our community, noting that years of dislocation and economic disadvantage have frequently resulted in “low incomes, higher unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness and community fragmentation,” (para. 66). [ 76 ] At paragraph 69 of that decision, the Court directed that a judge sentencing an Aboriginal offender: …must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member .

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means,” (my emphasis added). [ 77 ] There is no burden on an Aboriginal offender to establish a causal link between their background and the commission of an offence. [ 78 ] I find that Ms. Jacobs’ life has been impacted by her personal history as an Aboriginal child and woman: As a child, she was raised in a home where both her grandparents were residential school survivors.

As mentioned, her grandfather resorted to alcohol. While she described her childhood as “normal” and it is clear that she had much support growing up and positive exposure to traditional ways, in what was, back then, a fairly rural community, she was also exposed to types of violence and trauma including two little girls going missing; racial bullying; lateral violence and sexual violence. [ 79 ] As an adult, Ms.

Jacobs engaged in activities within the Squamish Nation community that brought her into direct contact with others suffering the effects of colonization and manifesting in substance abuse, homelessness, violence and desperation. Based on the collateral information, particularly contained in the PSR, I find that she did this for years. [ 80 ] I have regard to all of that and part of the tragedy of this case is that Ms.

Jacobs was likely a role model, for a time, to others in her community: she attained post-secondary education, a top position in an important department of the Squamish Nation and an elected co-chair position on Council. [ 81 ] The materials do not disclose neglect or poverty as a child.

As a young adult, as mentioned, she succeeded in an education path and she secured good employment. [ 82 ] The significance of the Aboriginal offender’s community’s views is reinforced throughout Gladue; hence, my emphasis in the passage in paragraph 69 with reference to whether or not imprisonment would actually serve to deter or to denounce crime in a meaningful way to the community of which the offender is a member.

This approach is reflected at paragraphs 71, 73, 74, 75, and 77 of Gladue . [ 83 ] At paragraph 80 of Gladue , the Court states: [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community?

What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing?

What sentencing options present themselves in these circumstances? (Underlining in original). [ 84 ] Regarding the question of imprisonment effectively deterring or denouncing this crime in a way significant to the community, the Victim Impact Statement here satisfies me that - with regard to this particular community and its reference to the need for protection, in light of the harm done to it - the principles of deterrence set out in the cases not involving an Aboriginal offender are apposite to this sentencing. [ 85 ] I note that in Gladue , the Court observed that “…the more violent and serious the offence, the more likely it is a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same …” (para. 79). [ 86 ] The Victim Impact Statement filed here is described as being on “behalf of the Council and the Nation.” In that statement, the writer states that the need to deter others who may feel inclined to “take advantage or steal from the Nation” is of “the utmost importance to the Nation”; that there is a requirement for protection for it and for other First Nations.

The Statement also refers to a “firm sentence” being required to deter not only those associated to the Squamish Nation, but all First Nations, vulnerable to such crimes. [ 87 ] While the Court in Gladue observed that, frequently, “…neither Aboriginal offenders nor their communities are well-served by incarcerating offenders,” particularly for non-violent offenders, (para. 74), in this case, it appears to be the community view that

imprisonment is required to constitute the necessary protective consequence for Ms. Jacobs’ offence. [ 88 ] Further, in Gladue , the Court recognizes that there are some offences and some offenders, for whom separation, denunciation and deterrence are fundamentally relevant; (see: para. 78, also Wells , para. 42). Here, deterrence and denunciation are fundamentally relevant. [ 89 ] I see the protective goal of sentencing, discussed above, as being of equal import in the context of Ms. Jacobs’ Aboriginal community as in any other community. C.

The fundamental principle of sentencing [ 90 ] The fundamental principle of sentencing is that a sentence must be proportionate to the offender's moral blameworthiness and the gravity of the offence. i. The Gravity of the Offence [ 91 ] The offence here is on the high end of the gravity spectrum: Ms. Jacobs took over $855,000 from monies earned by the Squamish Nation, intended for its most vulnerable members who could not get financial assistance elsewhere. [ 92 ] Using her position as Communications department head, Ms.

Jacobs created a system where the simple act of making up a slim story to justify the issuance of a cheque resulted in her securing hundreds of cheques, payable to herself - under the guise that she was using the money for others’ well-being. [ 93 ] Using her high political position as co-chair of the Nation’s Council, she clearly viewed herself able to ignore and disrespect the Nation’s checks and balances put into place to protect its financial integrity. [ 94 ] After the first fraudulent act, Ms. Jacobs had four hundred and twenty one opportunities to reflect on what she had done and not do it again.

The repetition, the planning – evidenced by the fabricated bases for the cheques; the opening of a new bank account before the fraud began, and the time frame over which the offence occurred, as well as the amount of financial loss to the community, lead me to conclude that this was an offence on the high end of the gravity scale. ii. Moral Blameworthiness [ 95 ] The next question to be answered is: what is Ms. Jacobs’ moral blameworthiness in committing the offence? [ 96 ] As set out in the Victim Impact Statement, she had a well-paying job and housing from the Band.

Poverty or desperation did not drive this unlawful behaviour. [ 97 ] Ms. Jacobs says that she had a gambling disorder and that that fact reduces her moral blameworthiness. [ 98 ] I have considered this submission carefully. [ 99 ] Trial evidence includes a spreadsheet setting out the locations of ATM banking machines where Ms. Jacobs’ bankcards were used to conduct transactions during the offence period; many dozens of these occurred at or near gambling facilities in the Lower Mainland and Squamish.

I find that this amounts to circumstantial evidence that she was likely gambling. [ 100 ] The Gladue Report makes no reference to gambling. In the PSR, Ms. Jacobs reports gambling, but says that none of the proceeds of the fraud were used for gambling or for lifestyle purchases.

In contrast, the Forensic Report ultimately ordered sets out a diagnosis of “gambling disorder”. [ 101 ] In Penttila , Justice Fitch explains that a gambling disorder may reduce an offender’s moral blameworthiness in certain circumstances. [ 102 ] He says that a “sentencing judge must first consider whether an offender has a medically recognized disorder”, (at para. 68).

In an assessment of pathological gambling, as a non-substance addictive disorder, the justice explains that this requires a consideration of the evidence “addressing the nature and magnitude of the disorder” as well as a determination of the “overall role it played in the commission of the offence”, (para’s. 67 and 68). [ 103 ] At paragraph 74, the Court notes that in a case such as this, where there is a dispute as to whether the offence was caused by the offender’s gambling disorder, … detailed and specific evidence, including medical evidence, will generally be required.

That evidence should set out the diagnosis, the factual foundation upon which the diagnosis rests, whether the disorder was operative at the time of the commission of the offence and, to the extent it can be determined, whether the disorder caused or contributed to the offending behavior. [ 104 ] In this case, as discussed with counsel at the last appearance, there are problems with the report produced by Forensics, which reduces the weight I place on it: first, despite a psychiatric report being ordered, a psychological report was produced; further, the report appears to have been largely prepared by a student of psychology, albeit with supervision. [ 105 ] In addition, the factual foundation upon which the purported diagnosis rests includes reference to activity relating to the BC Lottery Corporation.

No such evidence was adduced at trial. [ 106 ] I find as a fact that Ms. Jacobs did likely gamble during the offence period, but the banking records and business records in evidence, including those of a local spa, show that she also spent a lot of money on other things. The banking records, in particular, show deposits of Band cheques into her bank accounts, often followed by a payment to a credit card; to a household bill; to some form of

entertainment or to a cash withdrawal. [ 107 ] With regard to whether the disorder, (if it is a disorder), was operative at the time Ms.

Jacobs committed the offence, I find it helpful to consider just how the offence was committed: It began in April 2011, and continued for three years, and involved the requisitioning of 422 cheques; of making up a brief story as to why each cheque was needed, sending that story to an accounts payable clerk in the Finance Department, taking physical possession of each of those 422 cheques, negotiating each of those cheques – either depositing it or cashing it – and then deciding what to do with the money.

It involved directing others to go into the closed Finance office; it involved disregarding requests and obvious steps at scrutiny by the Finance Department. It involved opening a new bank account shortly before the beginning of the fraudulent conduct. [ 108 ] Such deliberate and deceptive, repeated steps, are hard to reconcile with a disorder that impaired Ms. Jacobs’ decision-making; ( Penttila, para. 70). [ 109 ] Finally, while the ATM transactions near gaming establishments is circumstantial evidence that Ms.

Jacobs (or someone using her card) attended such establishments, likely for the purpose of gambling, there is no documentary or viva voce evidence which shows that she, in fact, used the monies she took from the Squamish Nation for gambling purposes; ( Penttila , para. 75). [ 110 ] In the result, I am not satisfied that the evidence establishes that Ms. Jacobs suffered a gambling disorder that caused or significantly contributed to her offending behaviour. Rather, the documentary evidence satisfies me that, to a large extent, Ms.

Jacobs simply used the monies she took from the Squamish Nation to supplement her legitimate income to permit her to have more financial ease, allowing her to do things she enjoyed, including, likely, gambling and attending the spa. It is not a significant mitigating factor. [ 111 ] As well, as noted, Ms. Jacobs referred to being aware of others in the community defrauding it. [ 112 ] On all of the evidence, I cannot conclude that Ms.

Jacobs suffered from a medical disorder that was central to her offending, or even particularly relevant to it, such that her moral culpability is reduced and, thus, the importance of deterrence is lessened in any way; ( Penttila, para 44). [ 113 ] With regard to the other factor militating moral culpability – and that is in reference to

section 718.2(

e) of the Code - as discussed above - I find it likely that Ms. Jacobs’ personal history, as well as the systemic experience of the Aboriginal community, has some relevance to her criminal conduct. IX Range of Sentence - Other Cases [ 114 ] The Crown says that the case law shows that a four-year sentence is fit, in that lesser sentences for similar offences involve significant mitigating factors not present here, such as a guilty plea or restitution; the Crown relies on Chernoff, Patrick, Elliot, Quinn and Begg s.

Defence counsel did not refer the Court to any decision supportive of the two-year sentence proposed. [ 115 ] Because sentencing is an individualized process, other cases can only act as a guide. As mentioned, I have concluded that the sentencing cases advanced by the Crown, although not dealing with Aboriginal offenders, are of assistance here. [ 116 ] In Chernoff , the sentencing judge imposed a sentence of three years jail, observing that if Mr. Chernoff had not made full restitution of the $980,000 he had taken, the sentence would have been four years’ jail; (para. 35 – 36). Mr.

Chernoff had defrauded his employer of just under a million dollars by an elaborate scheme where he created a fake company and paid himself on fictitious invoices for lumber never sold to his employer. He was Financial Controller and then Assistant Chief Financial Officer of the victim company. Like here, the fraud went on for three years; similar to Ms. Jacobs’ disregarding the Finance Department’s request for backup documentation and authenticating details, Mr. Chernoff repeatedly deflected queries by an accounting clerk about irregularities arising from his scheme over several years.

Like here, his offence was revealed by a full investigative audit performed by the company, at its expense. [ 117 ] Mr. Chernoff pleaded guilty, which is a mitigating factor not present here. He was diagnosed with clinical depression. The Court noted that his actions did not impact the community at large; (para. 30). The reduction in sentence from four years to three was aimed at encouraging restitution in cases such as this; (para. 35). [ 118 ] In Patrick , following her guilty plea to fraud over $5,000, the offender was sentenced to three and a half years jail.

She had been the office manager of a hockey team in Kamloops; as such, she handled the club’s monies and financial records and did the club’s general banking. Over nine and a half years, she repeatedly issued cheques to herself higher than the club’s needs and cashed the cheques, keeping the difference. She defrauded the club of nearly $990,000. [ 119 ] The Court placed limited weight on Ms. Patrick’s guilty plea as a mitigating factor, noting the Crown’s case was strong; her lack of criminal record was not significantly mitigating because it is a characteristic that permitted her to commit the crime.

Further, while her cocaine addiction was said to have provided “some explanation for her offending,” her fraudulent conduct had been ongoing for years beforehand; (para. 52). [ 120 ] In Marr , the offender was sentenced to four years jail for defrauding her employer of $913,526 over five years, by means of 195 transactions. The impact of her offence was significant – impacting not only the owners of the small family business, but also other employees, who did not get bonuses, raises, or who were laid off. Ms.

Marr pleaded guilty, (which was not afforded much weight, given the inevitability of detection), and asserted a serious cocaine addiction during much of the offence time period. Much of the discussion in Marr is helpful, but I am aware that the Court’s discussion about addiction has been overtaken by Penttila ; (para. 22). [ 121 ] In Beggs , the Court of Appeal considered a four year sentence imposed after a guilty plea to defrauding Revenue Canada of $221,434 over four years. Ms.

Beggs was a Revenue Canada employee with security clearance, which allowed her access to the agency’s computers, where she created false tax credits and refunds for herself and associates.

[122] Mitigating factors included no criminal record and a guilty plea. The offence was partly motivated by her addictions to drugs andalcohol; it spanned four years and the money was not recovered. Noting that the security clearance she attained was only available to thetop 5% of Revenue Canada employees, the Court said that she “badly abused her position of trust,” to her employer and all citizens ofCanada; (para. 6). The Court upheld the sentence, describing it as reflecting the goals of denunciation and deterrence.

X Conclusion with Regard to the Appropriate Sentence Here [123] As discussed, I am satisfied that the objective of general deterrence is of primacy in this fraud case as any: Ms. Jacobs’community and other First Nation communities are entitled to as much protection from the Courts from breaches of trust and pilfering ofcoffers as any other organization or entity in our community. [124] I have considered Ms.

Jacobs’ circumstances, as an Aboriginal offender, and I have considered her community and its views. [125] I have considered the aggravating and mitigating factors here. [126] I note that while none of the cases relied upon by the Crown to support its position relate to Aboriginal offenders, none of thecases referred to deal with an offender who occupied such a profound position of trust, as did Ms. Jacobs, in her dual role of bothdepartment head and co-chair of Council. [127] Beggs comes closest, when the Court states that the offender “badly” abused her position of trust. [128] Ms.

Jacobs’ use of her power as co-chair, to override the controls sought to be put in place by the Nation’s Finance Department, tofacilitate her pilfering of the Nation’s fund, which she knew was held for her Nation’s most vulnerable, requires denunciation. [129] Her use of her power as co-chair to render the Finance Department’s structure so meaningless that she could direct FinanceDepartment employees to open the office on weekends and prepare and give her cheques, for her own purposes, without approval orconsultation with any manager or supervisor of that department – charged with the fiscal oversight of the Nation - was flagrant andbrazen and also requires denunciation. [130] I accept that her crime had a profound impact, not only on the Nation’s finances - the monies stolen, the costs of the audit - butalso on the integrity of its systems and the perception in the community of the manner in which the Nation was being run. [131] As stated, her conduct was brazen and flagrant in the extreme. [132] With deception and fabrication, Ms.

Jacobs – 422 times – obtained over $855,000 of the Nation’s money – generated by theNation – for its most needy members. [133] Having taken all of the above into consideration, and having given particular consideration to s. 718(2)(e.) of the Code in all ofmy considerations, I conclude that a penitentiary sentence of four years is the appropriate sentence for this offender, for this offence. [134] I sentence you, Krisandra Jacobs, to four years imprisonment. [135] There will be a stand-alone order of restitution in the amount of $856,695.23 payable to the clerk of the Court, in favour of theSquamish Nation. [136] It is this Court’s respectful hope that the Squamish Nation will, upon Ms.

Jacobs’ release from prison, accept her back into itscommunity, accepting that she has been punished for this crime. It is clear that she has much to offer; that she does value her community,and has family - both by blood and by her good will – which she seeks to integrate and secure the benefit and value of the community.This is the end of this case. It is hoped that it is the beginning of better things for all impacted by Ms. Jacobs’ actions. [137] A copy of these Reasons for Sentence will be forwarded to Corrections. _____________________________ The Honourable Judge L.

Smith Provincial Court of British Columbia Appendix Crown Case Authorities: Gladue-Consideration Cases: 1. R. v. Glaude, (SCC), [1999] 1 S.C.R. 688

2. R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 3. R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207 4. R. v. Collins, 2011 ONCA 182 , [2011] O.J. No. 978 (Ont. C.A.) 5. R. v. Whitehead, [2016] S.J. No. 709 (Sask. C.A.) 6. R. v. McCook, [2015] B.C.J. No. 121 (B.C. Prov.Ct.) 7. R. v. Hagen, 2021 BCCA 208 , [2021] 405 C.C.C. (3d) 211 (B.C.C.A.) 8. R. v. D.R.P., [2021] B.C.J. No. 1954 (B.C.S.C.) 9. R. v. M.R.R., [2021] B.C.J. No. 1901 (B.C. Prov.Ct.) Sentencing Length Cases: 10. R. v Patrick,

(2006) B.C.S.C. 1284 11. R. v. Chernoff, [2009] B.C.W.L.D. 2530 (B.C. Prov.Ct.) 12. R. v. Elliott, [2010] B.C.W.L.D. 7858 (B.C. Prov.Ct.) 13. R. v. Marr, [2008] B.C.W.L.D. 7887 (B.C. Prov.Ct.) 14. R. v. Quinn

(2005) B.C.S.C. New Westminster X0066517-2 15. R. v. Beggs, [2003] B.C.J. No. 443 (B.C.C.A.) Applicable Sentencing Principles Cases: 16. R. v. Warner, [1999] B.C.J. No. 1107 (B.C. Prov.Ct.) 17. R. v. Friesen, [1994] B.C.J. No. 374 (B.C.C.A.) 18. R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 19. R. v. Boulanger, [1998] B.C.J. No. 3371 (B.C. Prov.Ct.) Other Cases Relied On: 1. R. v. Penttila, [2022] B.C.J. No. 262 (B.C.C.A.) 2. R. v. Merkel, [2021] B.C.J. No. 2548 (B.C.C.A.) 3. R. v. Twizell, [2000] B.C.J. No. 661 (B.C.C.A.) 4. R. v. Mangat, [2021] B.C.J. No. 2551 (B.C.C.A.) Additional case not referred to by Counsel: 1. R. v. Solozano, (B.C.C.A.)