R. v. Braun, 2021 BCPC 258

Citation: R. v. Braun 2021 BCPC 258 Date: 20211006 File No: 73023-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JILL MARGARET BRAUN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE LAMPERSON Counsel for the Crown: S. Simpson Counsel for the Defendant: M. Vayeghan Place of Hearing: Nanaimo , B.C. Date of Hearing: September 1, 2021 Date of Judgment: October 6, 2021 A Corrigendum was released by the Court on November 1, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction [ 1 ] Before me for sentencing is Jill Margaret Braun. She defrauded an employer of over $31,000 during a period from late 2008 to late 2009. [ 2 ] She has pled guilty to count one on Information 73023 which charges that from the 1st day of November 2008 to the 30 th day of November 2009, inclusive, at or near Parksville, in the Province of British Columbia, she did by deceit, falsehood or other fraudulent means defraud the owners of the Hill Family Group of companies of money, of a value in excess of five thousand dollars ($5,000) contrary to section 380(1) (

a) of the Criminal Code . [ 3 ] Ms. Braun has three previous convictions for offences involving the theft of monies from an employer. Most recently, on January 8, 2004, she was sentenced on two offences involving separate employers to two concurrent 15 month jail terms followed by probation for two years. [ 4 ] Ms. Braun appealed her sentences to the British Columbia Court of Appeal but was not successful in having them overturned. [ 5 ] The fraud for which Ms.

Braun is now being sentenced began approximately six months after her she completed her two years of probation on the offences dealt with on January 8, 2004. [ 6 ] In this case the Crown seeks a jail sentence of four years together with ancillary orders. [ 7 ] The defence submits that the appropriate sentence is a conditional sentence order of two years less a day followed by three years of probation. [ 8 ] In determining the appropriate sentence in this case I must consider the circumstances of the offence, the circumstances of the offender, the victim impact, the purpose and principles of sentencing, the aggravating and mitigating factors and the pertinent case authorities.

History of the File [ 9 ] Before describing the circumstances of the offence, I will set out the history of the case. A question which naturally arises is why is the case before the Court for sentencing now when the offence period ended in November 2009. [ 10 ] It took some time for the police, with the help of a forensic accountant, to uncover the nature and extent of the fraud committed by Ms. Braun. [ 11 ] The Information was sworn on March 16, 2011. A warrant was then issued. [ 12 ] On October 10, 2012 Ms.

Braun appeared in Provincial Court in Nanaimo, British Columbia with an experienced lawyer and entered a plea of guilty to the charge presently before the Court. The matter was then waived, at her request, to Surrey, British Columbia for sentencing. [ 13 ] Ms. Braun made her first court appearance in Surrey on November 13, 2012. She then made a number of further appearances. Eventually her sentencing was scheduled for June 3, 2013; however; she failed to attend court and an unendorsed warrant was issued for her arrest. [ 14 ] Ms. Braun and her husband relocated to Calgary, Alberta.

The unendorsed warrant remained outstanding for almost six years. The warrant was executed when she was arrested in Surrey on March 1, 2019. Counsel were not able to provide the Court with information as to the circumstances of her arrest; however, it is clear that she did not turn herself in to the authorities. [ 15 ] Following her arrest, Ms. Braun was released on bail by a Provincial Court Judge in Surrey. She then made further court appearances there. Ultimately, her sentencing was scheduled for October 21, 2020.

I understand that on that day she advised Crown counsel that she disputed the amount of the fraud which she had committed. Consequently, her file was sent back to Nanaimo so that evidence could be called in the context of a Gardiner hearing. [ 16 ] Ms. Braun’s first appearance back in Nanaimo was on November 4, 2020. I am told that at that appearance she advised the Crown that she disputed having entered a guilty plea. [ 17 ] Ms. Braun appeared in person before me in Provincial Court in Nanaimo on September 1, 2021. She was represented by defence counsel, Mo Vayeghan, who appeared by video. [ 18 ] Ms.

Braun does not take issue with the fact that she absconded or that, even after her arrest, she did not deal with her case in a timely way. [ 19 ] I find that this history is relevant when considering Ms. Braun’s assertion that she is genuinely remorseful for the effect her fraud has had on its victims. The Circumstances of the Offence [ 20 ] I will now set out the circumstances of the offence.

In doing so I will draw from the Crown’s written submissions on sentence. [ 21 ] During the period from November 1, 2008 to December 3, 2009 Jill Braun was employed as a bookkeeper for Kasba Lake Lodge which was owned by the Hill Family Group. At the time, the Hill Family Group was owned and operated by Doug Hill and his two sons Mike Hill and Robert Hill.

[ 22 ] As the bookkeeper, Ms. Braun was responsible for receiving invoices, inputting those invoices into the accounting system and producing cheques to pay the invoices. She was also responsible for doing all of the payroll twice per month. [ 23 ] On December 3, 2009 Ms. Braun was fired by the Hill Family Group. At that time the owners of the business were not aware of the fraud but had suspicions. [ 24 ] It took several months of forensic accounting work and a police investigation to uncover the full extent of the fraud. [ 25 ] The investigation revealed that Ms.

Braun had written a total of 40 fraudulent cheques. The cheques were made out to various parties including some to Ms. Braun herself. The cheques ranged in amounts from $135.00 to $1,595.77 and totalled $31,248.19 [ 26 ] Ms. Braun deposited all of the cheques into an account which she held at the Bank of Montréal. [ 27 ] The police interviewed the various purported payees named on the fraudulent cheques.

They all confirmed that they never received any cheques or monies. [ 28 ] In addition to being out the amount of the fraud, the Hill Family Group incurred significant costs for the forensic accounting which was necessary to ascertain the extent of the fraud. The Circumstances of the Offender [ 29 ] Ms. Braun’s background and circumstances are set out in a Pre-Sentence Report dated July 7, 2021 and in a forensic psychological report dated July 12, 2021. I was also provided with a copy of an earlier report written by psychologist A.T. Malcolm dated September 18, 2003. [ 30 ] I note that the information about Ms.

Braun set out in the reports came directly from Ms. Braun and from her family. It seems that no other collateral sources were contacted. [ 31 ] I will begin by setting out some of the information contained in the Pre-Sentence Report written by probation officer Raymond Young. [ 32 ] Jill Braun is 57 years of age and was born in Hull, England. She presently lives with her second husband in Langley, British Columbia. [ 33 ] In 1967 her family moved from England to Canada. They then lived in the northern part of Alberta and British Columbia where her father worked as an engineer for Chevron Corporation. When Ms.

Braun was about eight years old the family settled in North Delta, British Columbia. [ 34 ] Ms. Braun is the youngest of three children. She reports having a positive relationship with her sister but no real relationship with her brother. [ 35 ] Ms. Braun’s father is now 91 years old and lives in a long-term care facility in Vancouver. Her mother is 87 years of age and lives in Nanaimo with her husband. [ 36 ] Ms. Braun reports that her family was conservative and overly restrictive. She described her mother as the disciplinarian. She said her father was stern and aloof.

She stated that all of her family’s material needs and necessities were provided for and reported that she has positive childhood memories such as yearly camping and fishing trips, going to Disneyland and visiting England. [ 37 ] Ms. Braun’s parents separated when she was 16 years old. She said that the separation was difficult for her and for her father. [ 38 ] Ms. Braun attended an all girls’ Catholic school. In grade 10 she started at a mixed gender public high school. She found the adjustment to be difficult and dropped out of school in her grade 10 year.

Later she studied marketing for two semesters at the British Columbia Institute of Technology. She says she also took a program to become a fetal alcohol spectrum disorder practitioner. She reported that she obtained her grade 12 equivalency in 2007. [ 39 ] Ms. Braun’s employment has been mostly in the areas of retail, service and administration. Ms. Braun is not presently employed. She and Mr. Braun live off of his Canada pension and the pension he receives from his former employment with Canada Post. [ 40 ] Ms. Braun reported that her first marriage was an unhappy one and ended after about two and a half years.

She said that she and her husband drank heavily and alleged that he was abusive. In 1997 she married her current husband, Ronald Braun. They have no children. [ 41 ] She said that Mr. Braun was diagnosed with chronic lymphocytic leukaemia in 2013. She reported that they moved from British Columbia to Calgary in 2013 so that he could take a certain form of cancer treatment. [ 42 ] Ms. Braun advised the probation officer that she is her husband’s primary caregiver. Mr.

Braun advised him that his medical condition has been quite stable for the last two to three years, that he is not on any medication and has no impediments to his day-to-day functions. Yet, he said he does get tired easily and relies on his wife for assistance and as his primary support. [ 43 ] Ms. Braun says that even though she has no close friends in the area she and her husband have no plans to relocate from their present home in Langley. [ 44 ] I will now refer to the psychological report prepared by Dr. April Beckmann who is a registered psychologist with the Forensic Psychiatric Services Commission.

[ 45 ] In addition to interviewing Ms. Braun, Dr. Beckmann had the benefit of reading a psychological assessment written by Dr. Dugbartey dated December 4, 2002 and the psychological assessment prepared by Dr. Malcolm dated September 18, 2003. [ 46 ] Dr. Beckmann states that Ms. Braun told her that she first attended a casino with friends in 1997 and that her gambling using slot machines quickly became out of control.

She reported that within a matter of months there was “no money in the bank, no money for the mortgage, no money for anything.” She identified her initial motivation for gambling as excitement but said that a sense of desperation then took over causing her to keep gambling to earn back the money she had lost. She reported that she never truly addressed her gambling problem until about 2010. [ 47 ] Dr. Beckmann notes that in Dr. Dugbartey’s 2002 psychological assessment, he confirmed the presence of a gambling disorder, major depressive disorder, alcohol abuse in full remission and dependent personality traits.

He assessed Ms. Braun as a being a moderate risk to reoffend in the medium term and recommended that she enroll herself in the B.C. Lottery Corporation (BCLC) Gaming Exclusion Program. [ 48 ] Dr. Beckmann further notes that in Dr. Malcolm’s assessment of Ms. Braun in 2003, following her guilty plea to her third offence involving theft from an employer, he described her offending as arising from a self-destructive pattern of gambling to manage a sense of poor self-worth and low mood.

His diagnosis of her as per DSM-IV-TR were major depression, pathological gambling, alcohol dependence and depressive personality disorder. [ 49 ] Ms. Braun reported to Dr. Beckmann that following the current offence she attended couples counselling with her husband and did extensive reading on depression and anxiety. She told her that she also resumed taking antidepressant medication and continued taking it until 2019. There is no indication that Ms. Braun has undertaken therapy to treat her depression or gambling addiction. [ 50 ] Dr. Beckmann reports that when meeting Ms.

Braun, she, at times, talked over her and appeared reluctant to discuss details of previous offences, asserting a poor memory. [ 51 ] She states further as follows: Ms. Braun demonstrated some insight into her offending and gambling problem. She recognized that her mood and ability to cope with emotions were connected to her gambling and she identified her improved ability to cope over the last 10 years. However, she tended to over attribute the impact of negative life events as directly connected to her offending, seeming to externalize responsibility.

In this, there was a degree of justification for her actions, as if suggesting she only resorted to theft and fraud due to a depressed mood and not due to other factors (e.g. some presence of offence supportive attitudes). She was often focused on the impact her offending has had on her life, without acknowledging the financial impact her actions have had on the companies she stole from. [ 52 ] Dr. Beckmann further states: Ms. Braun’s commission of the index offence also indicated a lack of responsibility.

She took a job where she would have access to funds again, despite already serving a custodial sentence for similar offences. She also had not maintained her enrolment in the BCLC Gaming Exclusion Program. In our interview, she asserted this program was not available back then, but Dr. Dugbartey clearly recommended this in his 2002 assessment. In the 2003 pre-sentence assessment, Ms. Braun reported to her probation officer that she had enrolled in this program at the end of 2002. There were actions Ms. Braun could have taken to manage her risk for reoffending, but for whatever reason, choose not to. [ 53 ] Dr.

Beckmann conducted a Level of Service Inventory – Revised risk assessment on Ms. Braun. In doing so she considered Ms. Braun’s criminal history, education/employment, finances, family situation, accommodation, leisure/recreation, alcohol/drugs, emotional/personal and attitude/orientation. [ 54 ] With respect to attitude/orientation the psychologist states : While Ms. Braun expressed remorse for the impact the crime has had on her husband and herself, she tended to offer some justification for her actions by externalizing responsibility to negative life events. [ 55 ] Dr. Beckmann writes further: Ms.

Braun’s score on the LSI - R placed her at the 61 st percentile compared to other female offenders. This score places Ms. Braun in the moderate range of committing a future offence. Much of Ms. Braun’s risk for reoffending was driven by her criminal history, including multiple offences, incarceration and a breach of probation order. [ 56 ] She writes further: The index offence represents Ms. Braun’s fourth episode of theft from an employer in order to fund her gambling habit and cover financial losses. The offence is strikingly similar to her previous offending. Again, Ms.

Braun found herself faced with stressors which she was unable to manage. She turned to gambling, likely as a means to manage negative emotions, and soon her gambling was out of control. Ms. Braun turned to her employer once again to cover her losses with the hope that she could hide her gambling from her husband, and then hide her theft from her employer. The short-sightedness of Ms. Braun’s actions in these offences speaks to the strength of her gambling addiction. It is also noted that Ms. Braun lacked some responsibility for her actions and did not learn from her first three offences.

She once again placed herself in a job where she had access to funds, and despite recommendations from Dr. Dugbartey regarding the BCLC Gaming Exclusion Program did not avail herself of this. [ 57 ] Dr. Beckmann goes on to state: Positively, Ms. Braun has demonstrated her longest period of desisting from offending, and gambling. It is been over 11 years since the index offence. Ms. Braun attributes this change to a significant shift in her thinking, including an appreciation that she has an “illness” in

terms of her depression and gambling problem. She has also undergone significant life changes that may have contributed to this shift, including caring for her husband through a chronic illness. [ 58 ] The psychologist notes that Ms. Braun is currently the sole caregiver for her ill husband. She notes further that if her husband’s illness worsens the stress of this is likely to be significant and could represent an emotional stressor which Ms. Braun struggles to manage. She goes on to say that the presence of emotional stressors likely indicates a high risk situation for Ms.

Braun and her risk of reoffending should be more closely monitored. [ 59 ] The law is clear that when a court finds that during the relevant time, the offender suffered from a form of mental illness and that the offender’s mental illness caused or contributed to their offending that this may reduce the moral culpability of the offender. The extent to which moral culpability is diminished depends upon the circumstances and varies from case to case: R. v. Badhesa, 2019 BCCA 70 and R. v. Penttila, 2020 BCCA 63 . [ 60 ] I am satisfied based upon all of the evidence that at the relevant time Ms.

Braun suffered from clinical depression and from a gambling addiction and that, while these conditions were not solely responsible for her offending, they contributed to her offending.

As a result, I find that her moral culpability is somewhat reduced. [ 61 ] However, the extent to which her moral blameworthiness is reduced is significantly lessened by the fact that, given her previous thefts from three separate employers and the psychological assessments which had been conducted, she knew her risk factors and sought and accepted employment as a bookkeeper once again. [ 62 ] Furthermore, the fact that she continued to gamble in casinos means that she was not enrolled in the B.C. Lottery Corporation’s Gaming Exclusion Program. [ 63 ] As I stated earlier, Ms.

Braun has a prior criminal record containing multiple related convictions. [ 64 ] On September 21, 1999 she was sentenced for an employer fraud over $5,000 which occurred in 1997. She received a conditional sentence of nine months, followed by three years of probation. In addition, she was ordered to pay restitution in the amount of $45,299. [ 65 ] On January 8, 2004 she was sentenced for committing a theft over $5,000 and a fraud over $5,000. The theft occurred in 2002. The fraud, which involved a different employer, occurred in 2003 while she was awaiting sentencing for the theft.

She received two concurrent 15 month jail sentences followed by two years of probation. For the theft offence she was ordered to pay restitution in the amount of $12,875. For the fraud offence she was ordered to pay $6,963 in restitution. [ 66 ] On February 5, 2004 she was sentenced for breaching the probation order she was placed on with respect to her first offence. The breach was for failing to pay restitution. She received a consecutive jail sentence of 14 days. [ 67 ] I understand that Ms. Braun paid approximately $8,000 towards the $45,299 of restitution ordered on September 21, 1999.

My understanding is that she has paid none of the restitution ordered on January 8, 2004 totalling almost $20,000. It follows that she still owes a total of approximately $57,000 in restitution for her three previous offences. [ 68 ] Ms. Braun has not paid any restitution to the victims of the fraud for which she is now being sentenced. [ 69 ] Ms. Braun has a default civil judgment against her in the amount of $7,101.

I understand that the judgment was obtained by the insurer of the Hill Family Group for repayment of monies paid by the insurer as some compensation for the loss which the Hill Family Group suffered as a result of the fraud committed by Ms. Braun. She has not paid any monies towards the judgment. [ 70 ] Ms. Braun provided the Court with a number of reference letters which I have read. The letters are from her husband, her sister, a friend, and from former employers. Together the letters show that Ms. Braun has some family support and was a valued employee to some employers.

All but one letter from employers pre-date her offending. The letters were written in 1986, 1991 (two), 2000, 2008 and 2017 respectfully. Accordingly, I do not find those letters from previous employers to be of much assistance Victim Impact [ 71 ] On May 27, 2021 Robert Hill provided a victim impact statement on behalf of his family. Mr.

Hill reported that the offence created a substantial amount of stress because it took many months, at considerable cost, to uncover the full extent of the fraud and because it caused the family business to struggle financially for a number of years. [ 72 ] Doug Hill, Robert Hill’s father and the original owner of the family business, has passed away without seeing a conclusion to this matter. [ 73 ] Robert Hill advises that at the time Ms. Braun was hired she presented herself as a professional with references.

When he learned of her deception he felt embarrassed and tricked. [ 74 ] As I stated earlier, they have received no restitution at all. Purpose and Principles of Sentencing [ 75 ] The purpose and principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code . I will recite the applicable sections. 718 The fundamental purpose of sentencing is to protect society and contribute, along with crime prevention initiatives, 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 and the harm done to victims or to the community that is caused by 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; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances; … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

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 shall be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 76 ]

Section 380.1 states: … where a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (

d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community; Mitigating and Aggravating Factors Mitigating Factors [ 77 ] I find that the mitigating factors in this case include the following: • Ms. Braun has pled guilty, meaning that she has accepted responsibility for committing the fraud and that a trial is not necessary; • Ms.

Braun’s mental health difficulties at the time of her offending, in particular, major depression and a gambling disorder contributed to her offending and, therefore; reduce her moral culpability; • The defence notes that Ms. Braun has not been found to have committed any further offences since 2009 and that she has not been found to have violated any of the terms of the bail order which was imposed upon her in March 2019.To the extent that merely obeying the law and not committing criminal offences can be said to be a true mitigating factor on sentence, I note that had Ms.

Braun not absconded but rather been sentenced within a reasonable time following her guilty plea in 2012, she would not be in a position to point to a period of over 11 years without committing further offences. • The defence submits that Ms. Braun says she is remorseful for having committed the fraud .She reported the same to the author of the pre-sentence report. She also apologized in court. However, given the history of this case including that Ms. Braun absconded from the jurisdiction for a lengthy period of time, that she has paid no restitution, and the statements made in Dr.

Beckmann’s report, I find that while Ms. Braun may be remorseful for the effects her offending have had on her life, I am not am not satisfied that she is genuinely remorseful for the harm she has caused to her victims in this case. Aggravating Factors [ 78 ] I find that the aggravating factors in this case include the following: • Ms. Braun, as a bookkeeper for her employer, was in a position of trust. She grossly abused that trust, particularly after presenting herself as an experienced professional with positive references;

• Ms. Braun began committing the fraud against the Hill Family Group within only about six months of completing a two-year probationary period relating to two of her three prior offences; • Ms. Braun defrauded her employer in a large amount, over $31,000; • Ms. Braun’s fraudulent behaviour had a significant impact on its victims in that it caused financial loss and hardship to a family business as well as emotional stress to the family members; • Ms. Braun’s fraud was not a one-off, but rather was committed over a period of about one year, and involved her writing 40 fraudulent cheques; • Ms.

Braun’s offending continued and only ended when her employment was terminated; • At the time that Ms. Braun committed the fraud before the court she had three prior convictions for similar offences all involving theft of monies from employers; • Ms. Braun did not abide by the recommendation that she enroll and stay enrolled in the BC Lottery Corporation Exclusion Program; • Given her previous offending, Ms. Braun knew that if she took employment which required her to deal with money she would put herself at risk of reoffending; • After pleading guilty, Ms.

Braun absconded for several years and never turned herself in. There is no evidence that she would have ever dealt with her charges had she not been arrested in March 2019, almost six years after an unendorsed warrant was issued. [ 79 ] In this case, I must assess the likelihood that Ms.

Braun will pay restitution to the Hill Family Group. [ 80 ] Given that she has well over $50,000 in unpaid restitution with respect to her prior three offences, that, although she has had over 10 years to do so, she has not paid any restitution in the present case, and given her modest financial circumstances, I find that there is little likelihood that she will be able to pay any significant restitution for the benefit of the Hill Family Group. Furthermore, if she was to pay restitution in this case it may be at the expense of those other employers she has defrauded in the past. [ 81 ]

Section 380 of the Criminal Code provides that the maximum penalty for a person who commits fraud valued in excess of $5,000 is 14 years imprisonment. [ 82 ] Historically a conditional sentence order was available for those who committed frauds which exceeded $5,000 in value. In 2012, amendments to the Criminal Code precluded the imposing of a conditional sentence order in cases where the maximum sentence for the offence is 14 years. [ 83 ] In April 2021 in the case of R. v. Chen, 2021 BCSC 697 Mr.

Justice Schultes found this provision of the Criminal Code to be unconstitutional. [ 84 ] Since the Chen decision was rendered, the Crown in British Columbia has been taking the position that conditional sentence orders are again available as a sentencing option in cases, such as this one, where the maximum sentence is a period of imprisonment of 14 years. [ 85 ] In accordance with

section 742.1 of the Criminal Code , a court that imposes a sentence of imprisonment of less than two years may order the offender to serve the sentence in the community in accordance with a conditional sentence order if satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . [ 86 ] As I stated earlier, defence counsel submits that, in this case, the Court should impose a conditional sentence order followed by a three year period of probation. [ 87 ] Crown counsel acknowledges that a conditional sentence order is available in the present case but, as I have said, submits that it would not be appropriate.

She seeks a jail sentence of four years. The Case Law [ 88 ] Both Crown counsel and defence counsel provided the Court with a number of sentencing decisions in cases involving the defrauding of an employer. As is always the case, none of the decisions provided are exactly comparable to the case before the Court; however, they do provide helpful guidance. [ 89 ] The Crown provided the following cases: • R. v. D.N., 2018 BCCA 190 • R. v. Braun , 2004 BCCA 222 • R. v. Dickens, 2003 BCSC 537 • R. v. Dunkers, 2018 BCCA 363 • R. v. Kodimyala, 2020 BCCA 275

• R. v. Korol, 2007 BCSC 1854 • R. v. Manji, 2012 BCPC 203 • R. v. Penttila, 2020 BCCA 63 • R. v. Singh, 2013 BCSC 709 • R. v. Singh, 2015 BCCA 123 • R. v. Pahl, 2016 BCCA 234 • R. v. Wilson, 2020 ONCA 3 • R. v. Willier, 2005 BCCA 404 • R. v. Kory, 2009 BCCA 146 • R. v. Hoyt, (BC CA), [1992] BCJ No. 2315 • R. v. Shropshire, (SCC), [1995] 4 SCR 227 • R. v. Datsko, 2009 BCPC 106 • R. v. McKinnon, 2005 ABCA 8 [90] The defence relies on the following cases: • R. v. Colligan, 2020 BCSC 1139 • R. v. Proulx, 2000 SCC 6 • R. v. Chen, 2021 BCSC 697 • R. v. Badhesa, 2019 BCCA 70 • R. v. Burkart, 2006 BCCA 446 • R. v.

Dickson, 2007 BCCA 561 • R. v. Merkel, 2021 BCSC 839 • R. v. Kratky, • R. v. Hill, [2016] BCJ No. 2306 • R. v. McLean, 2016 BCSC 2191 • R. v. Ojeda, 2017 BCPC 279 • R. v. Offman, 2017 BCPC 70 • R. v. Bunn, 2000 SCC 9 [91] Considering the case law and the circumstances of this case, there is no doubt that a jail sentence should be imposed upon Ms.Braun. The first question is what is the appropriate length of jail sentence? The second question is, if the Court determines that a jailsentence of less than two years is appropriate, would it be appropriate to have Ms.

Braun serve the jail sentence in the community byway of a conditional sentence order. [92] I have considered all of the sentencing decisions provided but will only refer to those which I find to be most helpful. [93] The case law makes it clear that when sentencing an offender who has abused a position of trust by defrauding or stealing fromhis or her employer that deterrence and denunciation are significant factors to be considered. [94] In the 2020 decision of Kodimyala, the British Columbia Court of Appeal appears to accept the Crown’s position that theordinary range of sentence for this type of offence, for a first offender, is nine to 18 months imprisonment.

The Court allowed theCrown’s appeal and set aside a suspended sentence. Mr Kodimyala, who had no criminal record, was convicted after trial of committinga fraud which caused a loss in the amount of about $48,000 .The Court of Appeal agreed with the Crown that a 12 month sentence wouldbe appropriate but decided it should be reduced to six months to take into account that Mr.

Kodimyala had been on a curfew for ninemonths and had already completed the community work service hours which had been ordered. [95] The Braun decision cited above relates to Jill Margaret Braun, who is now before the Court. [96] She appealed two concurrent 15 month jail sentences followed by two years of probation imposed upon her on January 8, 2004for committing theft from an employer in 2002 and for defrauding a different employer in 2003.

[97] At paragraph four of the decision the Court of Appeal describes Ms. Braun’s circumstances as follows: Ms. Braun has had a troubled life, as is evident from the two psychological reports that were before the sentencing judge. She is 40 yearsof age and is married for the second time. She has suffered mental and emotional problems which included periodic severe depression,and anxiety disorder, lack of self-esteem and addictions, first to alcohol and then to gambling.

To her credit she overcame her addiction toalcohol, but it was replaced with her addiction to gambling that led her to stealing from her employer. [98] I note that at the time she committed the current offence, Ms.

Braun’s circumstances were very similar to those quoted abovefrom the decision of the Court of Appeal. [99] The appellate court notes that the sentencing judge stated that he did not feel that a conditional sentence was appropriate for Ms.Braun given that she had a conviction in 1999 for theft from an employer over $5,000 (for which she received a nine-month conditionalsentence) and that the sentence imposed obviously did not have the desired deterrent effect. [100] At paragraph 12 the Court of Appeal holds as follows: In view of the fact that Ms.

Braun committed the two offences for which she was sentenced while on probation for similar offences, itcannot be said that the objectives of deterrence and the protection of the public were overemphasized by refusing to impose a secondconditional sentence on her. [101] In the 2007 case of Korol, Ms. Korol, who had no criminal record, was found guilty of stealing about $35,000 to $40,000 from aBoston Pizza restaurant in Kamloops which she managed. Mr.

Justice Meiklem decided that a conditional sentence order was notappropriate and imposed a jail sentence of 18 months, followed by 18 months of probation. [102] In the 2003 case of Dickens, Mr. Dickens pled guilty to theft of monies in the amount of $173,159.54 from the 100 Mile HouseDistrict Hospital. The theft took place over a period of six years when Mr. Dickens was the Director of Finance for the hospital. Mr.Dickens issued 52 cheques which he deposited into his various bank accounts.

Although he had several previous convictions forimpaired driving he had no convictions related to theft. [103] Madam Justice Gerow found, as I have in the case of Ms. Braun, that there was little likelihood of Mr. Dickens being able to payrestitution. She sentenced Mr. Dickens to a term of imprisonment of three years. She stated that if restitution had been made or if shethought it was likely she would have considered a lesser term.

She said that given the length of sentence she was not prepared to make arestitution order. [104] I was provided with three decisions in cases where the offender left the jurisdiction before being sentenced. [105] In the 2020 case of Colligan, the Indigenous offender was charged with trafficking in cocaine in 2011. He failed to appear for histrial in 2013 and absconded. He was arrested on a warrant in 2018. Mr. Justice Marchand noted that “The Crown does not dispute thesignificant progress Mr. Colligan has made in his life” and found that while Mr.

Colligan was evading justice he “completely turned hislife around.” [106] The judge found that Mr. Colligan evading justice was an aggravating factor to be considered and said that imposing a conditionalsentence order would not “reward” him for absconding. He stated that had the offender fully reformed himself without absconding hewould have imposed a shorter and less onerous conditional sentence order. He said “the reason for the length and onerous nature of theCSO I will be imposing is specifically to reflect the fact that Mr.

Colligan evaded justice for so long.” [107] It is clear, however, that Justice Marchand did consider Mr. Colligan’s full reformation as a positive and mitigating factor. It isalso clear that Gladue factors played a significant

part in his decision. He did not refer to the Singh decisions which suggests that he maynot have been made aware of them. [108] The Crown notes that Ms. Braun is not Indigenous and, accordingly, Gladue factors do not apply. The Crown also submits that itis not clear that Ms. Braun has completely turned her life around to the degree that Mr. Colligan did. I agree. All that we know for certainis that Ms. Braun has not been found to have committed any further offences since 2009 and has not been found to have breached her bailorder since it was imposed in March 2019. She reported to Dr.

Beckmann that sometime after committing the fraud she attended couplescounselling with her husband, did extensive reading on depression and anxiety and, until 2019, took anti-depressant medication. There isno indication that she sought therapy for her gambling addiction or for her depression. In the opinion of Dr. Beckmann, Ms. Braunremains a moderate risk to reoffend. [109] In Singh, the offender fled to California after murdering his girlfriend. He remained in the US for the next 12 and a half years. Inconsidering this fact, Mr.

Justice Butler states as follows: I have already described how he fled to California and employed all available means to avoid detection. These actions, as the Crown hasargued, demonstrate a repudiation of the court process and defiance towards the administration of justice. As such, they amount to anaggravating factor. [110] In his reasons, Justice Butler refers to a decision of the Alberta Court of Appeal and states as follows: A similar conclusion was reached in R. v.

Thompson (1989), 1989 ABCA 212 , 98 A.R., 348 (CA), where the court had tosentence an offender who skipped bail and hid in the United States for 10 years. While away, he matured, became engaged and acquireduseful business experience. He voluntarily returned to Canada and pleaded guilty. He argued that he was rehabilitated and this should betaken into account as a mitigating factor.

The court disagreed, stating as follows at para. 8: Were we to set a short sentence here, anyone who is now or later on bail might learn of this decision and be further tempted to forfeit hismoney (or endanger his sureties’ money) to avoid jail. Over 10 years, any person with intelligence and social skills who has to stay out

of trouble to avoid detection is likely to reform. A light sentence here would make it an attractive business proposition for others on bail to flee. It would tend to remove the risk for them. [ 111 ] Justice Butler quotes further from para. 16 of Thompson as follows: Just as courts should not give a sentence which rewards bail jumping, they should not give a sentence which rewards perpetual defiance of the law, and continued refusal to come back or to plead guilty. [ 112 ] Justice Butler imposed on Mr. Singh the mandatory sentence for second-degree murder of life imprisonment.

He set the period of parole eligibility at 16 years. [ 113 ] His decision was appealed to our Court of Appeal.

Writing for a unanimous court, Chief Justice Bauman dismissed the appeal and stated: It was a most callous murder committed by a man who, the sentencing judge concluded, was unable to control his jealous and manipulative character and who demonstrated a lack of respect for the law and the rights of others, a man who fled the murder scene and evaded detection in California for some 12 ½ years before being captured and returned to Canada. [ 114 ] The Singh case was cited with approval by the British Columbia Court of Appeal in 2018 in D.N .

Three months after being arrested for sexually assaulting his stepdaughter, D.N. moved to Switzerland. He was later convicted and sentenced to eight years imprisonment. At sentencing, D.N. sought a conditional sentence order.

In determining an appropriate sentence the sentencing judge found that his flight from the jurisdiction to Switzerland was an aggravating factor. [ 115 ] At paragraph 26 our Court of Appeal states: Further, the judge rightly considered D.N.’s flight to Switzerland and continued violation of his no contact bail order to be aggravating circumstances that also weighed against rehabilitation and reintegration. As stated in R. v.

Singh 2013 BCSC 709 , aff’d 2015 BCCA 123 , such conduct demonstrates a repudiation of the court process and defiance of the administration of justice. [ 116 ] The leading decision with respect to conditional sentences is that of Proulx . [ 117 ] At paragraph 127, Mr. Justice Lamer, writing for a unanimous Court, summarizes the important aspects of his reasons in 13 points. I have considered all of the points and will quote points 1,3,8 and 12: 1.

Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. 3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences. 8. A conditional sentence can provide significant denunciation and deterrence.

As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. 12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced.

However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence. [ 118 ] While Mr. Vayeghan has provided many cases for the Court to consider in support of his submission that a conditional sentence order should be imposed in this case, he relies on Proulx and emphasized some cases more than others. I will comment on the cases of Burkart, Dickson and Merkel on which he focussed most . [ 119 ] In Burkart , Ms. Burkart appealed a sentence of 18 months imprisonment, one year of probation and restitution.

She had been an employee of TD Canada Trust for over 15 years. She became involved in gambling at casinos which led her into debt. She stole $81,400 from her employer between March 2003 and March 2004. She was 38 years of age at the time of her conviction. She had no previous criminal record and was described in a Pre-Sentence Report as a hard-working, intelligent and private person, who has a supportive family. [ 120 ] Our Court of Appeal found that the sentencing judge had erred by finding that unusual circumstances are a requirement for a conditional sentence order.

The Court allowed the appeal and substituted a conditional sentence in place of the custodial sentence and deleted the probation order. [ 121 ] I find that Burkart is distinguishable from the case before me. In particular, Ms. Burkart had no criminal record, the trial judge found that there was little likelihood that she would pose a risk to reoffend and she did not abscond from the jurisdiction before being sentenced. [ 122 ] In Dickson , Ms. Dickson appealed her sentence of 12 months imprisonment following her guilty pleas to two counts of theft from two separate employers.

She sought a conditional sentence order followed by a period of probation. Her lawyer emphasized the mitigating factors of her guilty pleas, remorse, restitution, mental illness and having custody of her daughter. The Court of Appeal allowed the appeal and set aside the sentence. [ 123 ] Ms. Dickson had been employed as a bookkeeper for the two separate businesses. When employed with the first business she wrote 23 cheques totalling just over $70,000 for her personal benefit. When employed with the second business she fraudulently

negotiated seven cheques for her own benefit totalling just under $77,000. [ 124 ] Before being sentenced she made restitution to both businesses for the full amounts taken. [ 125 ] At the time she committed the offences she had a criminal record.

Her record included the following: A conviction for one count of fraud for which she received a suspended sentence, probation for six months and an order to make restitution of $2,435; a conviction for one count of “theft under” for which she was given a conditional discharge and eight months probation; and, a conviction on two counts of making false representations under the Employment Insurance Act for which she received fines of $1,000 and $4,000 respectively and was placed on probation for one year. [ 126 ] After committing the offences in question and prior to being sentenced Ms.

Dickson consulted a psychiatrist who diagnosed her as having bipolar disorder. She then underwent treatment which included both psychotherapy and psychopharmacology. At her sentencing she provided the Court with three letters of support for herself which she had forged. [ 127 ] Writing for a unanimous Court, Chief Justice Finch states as follows at paragraph [65]: In my respectful opinion the learned sentencing judge fell into several significant errors of principle that call into question the fitness of the sentence of imprisonment.

He effectively presumed that for serious theft a jail sentence was required unless the appellant provided a “clear series of reasons” in favour of a conditional sentence order. He held, contrary to authority and without any evidence, both that conditional sentencing orders do not have any deterrent effect and that sentencing should be based on his understanding of what the public perceive the deterrent effect of a conditional sentencing order to be.

He also erred in reasoning that a jail sentence would have greater deterrent effect in a small community than in a large community. [ 128 ] At paragraph 70 the former Chief Justice states: In my respectful opinion, a sentence of imprisonment is unfit in these circumstances. It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was the cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment.

To the extent the public opinion is relevant to the principle of general deterrence, I’m satisfied that reasonable citizens informed of all the relevant circumstances in this case would consider that the provisions of the Criminal Code and the ends of justice are met by a conditional sentencing order. [ 129 ] He then set aside the sentence appealed from and substituted a conditional sentence of 12 months followed by two years probation. [ 130 ] I find that the Dickson case is distinguishable from Ms. Braun’s case. Distinguishing factors include that Ms.

Dickson did not have as serious a criminal record as does Ms. Braun, that Ms. Dickson paid restitution in full before her sentencing, that she did not abscond from the jurisdiction and that she was clearly remorseful. [ 131 ] Unlike the Court found in Dickson , I’m not sure that reasonable citizens informed of all the relevant circumstances in Ms.

Braun’s case would consider that the provisions of the Criminal Code and the ends of justice would be met by a conditional sentence order. [ 132 ] The case which the defence seems to rely upon most strongly in support of a conditional sentence order is the 2021 British Columbia Supreme Court case of Merkel. [ 133 ] Ms. Merkel pled guilty to one count of fraud over $5,000.

From April 2017 to July 2018, through a complicated scheme involving multiple transactions, she stole $70,340.48 from her employer, Errington Cedar Products, a family owned company on Vancouver Island which employed approximately 50 people. [ 134 ] Ms. Merkel, who was the company’s bookkeeper, was terminated in July 2018 for reasons unconnected to the fraud, which at that stage was yet undiscovered. [ 135 ] At the time of sentencing Ms. Merkel was 43 years old. She had five children ranging in age from 16 to 26. She was married to a supportive and employed husband whom she married in 2014.

She held a certificate in business administration. [ 136 ] Before her time at Errington Cedar Products, Ms. Merkel worked as a bookkeeper for two other companies both of which she also defrauded throughout 2006. She had pleaded guilty to two counts of theft. On May 11, 2009, the Court ordered an 18 month conditional sentence, one year probation and restitution of $81,337 and $26,902 to the respective companies. [ 137 ] Four days after that conviction, it was discovered that she had defrauded a third company of $10,050 in early 2009.

She pleaded guilty to possession of stolen property and fraud over $5,000, leading to a jail sentence of nine months and a restitution order for $10,050.

She paid the $10,050 restitution order; it is not known if she paid the two earlier restitution orders. [ 138 ] While not excusing her own behaviour, she attributed her past crimes and lack of judgment in part to the financial pressures of raising a large family, in part to chronic depression and in part to an oxycodone dependency flowing from a workplace back injury 22 years before. [ 139 ] Through her counsel, and also to the author of her Pre-Sentence Report, Ms. Merkel expressed remorse for her crimes and accepted responsibility.

She acknowledged the harm that she had caused and accepted that she could no longer work in any future position requiring financial trust. [ 140 ] Since her fraud she had weaned herself off oxycodone. After her 2009 conviction she also underwent counselling which allowed for almost a decade of crime free employment. She said that she now had better insight into the link between her dependencies and stressors in her crimes. She says that she has acquired better coping strategies and emotional regulation.

[ 141 ] During her sentencing, Ms. Merkel offered to repay the money, however, had not yet made any payments. She had complied with bail conditions and there had been no known breaches or further offences since the crime for which she was being sentenced. [ 142 ] Mr. Justice Crerar imposed a conditional sentence order of two years less a day to be served under house arrest with electronic monitoring. The conditional sentence order was to be followed by three years of probation. [ 143 ] He found that a conditional sentence order would not endanger the community and would be consistent with sentencing objectives.

He also found that Ms. Merkel would be in a better position to repay the victims for crime if she served a sentence under house arrest, potentially earning a salary. [ 144 ] Crown counsel, Ms. Simpson advised the Court that the Crown has appealed the decision in Merkel and that the appeal is scheduled to be argued in October 2021. [ 145 ] I find that, of the cases provided by counsel, the Merkel case is the most similar to the case before me. [ 146 ] Having said that, I find there are some important distinctions. One is the timing. In the case before me, Ms.

Braun commenced committing the current fraud a mere six months after she completed her prior sentences. In Merkel there is a more significant gap. Other distinguishing facts are that Mr. Justice Crerar seems to have accepted that Ms. Merkel was truly remorseful and believed that there was a reasonable prospect that she would pay full restitution. [ 147 ] As I had stated earlier, I do not accept that Ms.

Braun is truly remorseful for the consequences her fraud has had on its victims and I find that there is very little likelihood that she will pay restitution to them. [ 148 ] Perhaps the most significant difference between the Merkel case and Ms. Braun’s case is the fact that Ms. Braun absconded from the jurisdiction and is only before the court following her location and arrest approximately two and a half years ago. [ 149 ] But for the fact that I have found that Ms.

Braun’s moral culpability is reduced because at the time of her offending she was still suffering from depression and a gambling addiction, I would find that a federal sentence in a penitentiary is appropriate. If I was to impose a federal sentence of two years or more a conditional sentence order would not be available to Ms.

Braun. [ 150 ] However, considering her mental health difficulties at the time I have decided that a provincial sentence of less than two years is fair and appropriate. [ 151 ] The question then becomes whether a conditional sentence order, including terms of house arrest and community work service hours, would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 152 ] While imposing a conditional sentence order upon Ms. Braun may not endanger the community, I find that is far from certain. Dr. Beckmann expressed the view that Ms.

Braun does not accept full responsibility for her offending and is a moderate risk to commit further similar offences. She noted that, in the past, Ms. Braun has stolen from employers when she was emotionally stressed and felt unable to manage. She noted further that Ms. Braun is currently the sole caregiver for her ill husband, that they have limited financial means. She believes that the further stress which Ms.

Braun would likely experience if her husband’s illness worsens would increase her risk of reoffending. [ 153 ] If I am to find that imposing a conditional sentence order would not endanger the community I must still go on to consider whether it would be consistent with the fundamental purpose and principles of sentencing. [ 154 ] Upon carefully considering the circumstances of the offence, the circumstances of Ms. Braun, the victim impact, the mitigating and aggravating factors and the sentencing cases provided I have decided that imposing a conditional sentence order upon Ms.

Braun would not adequately satisfy the fundamental purpose and principles of sentencing. This is a case where the objectives of general and specific deterrence and denunciation are paramount. Given all of the circumstances, and in particular the aggravating factors including Ms.

Braun significant record of convictions for similar offences and that she absconded from the jurisdiction for several years before being arrested, I conclude that a conditional sentence order, even with punitive conditions such as house arrest and community work service, would not adequately deter like-minded individuals from committing similar offences and would not sufficiently denounce her criminal conduct. [ 155 ] I have decided that a lengthy period of incarceration in a provincial institution followed by a period of probation is what is appropriate. [ 156 ] Ms. Braun, please stand up.

I impose a jail sentence of 22 months followed by a period of probation for two years. [ 157 ] The terms of probation are as follows: 1. You must keep the peace and be of good behaviour. You must appear before the Court when required to do so by the Court. 2. You must report in person to a probation officer at the Langley Community Corrections office within three business days of the completion of your custodial sentence . 3. When first reporting to your probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your probation officer. 4. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer. [ 158 ] Ms Braun, your lawyer proposed that the Court include a term in a conditional sentence order and in a probation order that you

make regular restitution payment. I will not include such a term in your probation order because I believe it would likely lead to youbreaching and to perhaps facing further charges as a result. [159] I do, however, make a stand alone restitution order in the amount of $24,147.19 (the difference between the full restitution in theamount of $31,248.19 and the civil default judgment in the amount of $7,101.00) for the benefit of the Hill Family Group. The restitutionorder is pursuant to

section 380.3 of the Criminal Code. [160] Pursuant to

section 380.2(1) of the Criminal Code I prohibit you from seeking, obtaining or continuing any employment, orbecoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security ofanother person, business or other entity. [161] This prohibition will continue for a period of 20 years, beginning today. _____________________________ The Honourable Judge Lamperson Provincial Court of British Columbia CORRIGENDUM - Released In the Reasons for Judgement dated October 6, 2021, the following changes have been made: [1] Paragraph 89 should read as: [89] The Crown provided the following cases: • R. v.

D.N., 2018 BCCA 190 • R. v. Braun, 2004 BCCA 222 • R. v. Dickens, 2003 BCSC 537 • R. v. Dunkers, 2018 BCCA 363 • R. v. Kodimyala, 2020 BCCA 275 • R. v. Korol, 2007 BCSC 1854 • R. v. Manji, 2012 BCPC 203 • R. v. Penttila, 2020 BCCA 63 • R. v. Singh, 2013 BCSC 709 • R. v. Singh, 2015 BCCA 123 • R. v. Pahl, 2016 BCCA 234 • R. v. Wilson, 2020 ONCA 3 • R. v. Willier, 2005 BCCA 404 • R. v. Kory, 2009 BCCA 146 • R. v. Hoyt, (BC CA), [1992] BCJ No. 2315 • R. v. Shropshire, (SCC), [1995] 4 SCR 227 • R. v. Datsko, 2009 BCPC 106 • R. v.

McKinnon, 2005 ABCA 8 _____________________________ The Honourable Judge Lamperson Provincial Court of British Columbia