R. v. Loring, 2023 BCPC 194

Citation: R. v. Loring 2023 BCPC 194 Date: 20230822 File No: 75570-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CHANTAL NICOLE LORING REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Crown: M. Jang, Articled Student Counsel for the Defendant: K. Aimetz

Place of Hearing: Prince George , B.C. Date of Hearing: May 17, 2023 Date of Judgment: August 22, 2023 INTRODUCTION [ 1 ] On May 11, 2022, Chantal Loring (Ms. Loring) pleaded guilty to two counts on Information 75570-1:

a) Count 1: theft over $5,000, contrary to

Section 334 (

a) of the Criminal Code , and

b) Count 2: fraud over $5,000, contrary to Section 380(1) (

a) of the Criminal Code . [ 2 ] The “ K ienapple principle” applies and a judicial stay of proceedings will be entered for the less serious offence, Count 1. AGREED STATEMENT OF FACTS [ 3 ] An Agreed Statement of Facts was filed. A

summary of those facts include:

a) Between December 13 th , 2018, and February 15 th , 2019, Ms. Loring, while an employee, did defraud Solutions Staffing Inc. (“Solutions”) of an amount in excess of $5,000;

b) Ms. Loring's job duties included booking travel and hotels for health care professionals. T o complete bookings, Ms. Loring used Solutions' credit cards. She signed an agreement that the Credit Cards would be used only for the bookings she made as part of her employment. She was not authorized to use the Credit Cards for online gambling;

c) PlayNow is an online gambling platform operated by the British Columbia Lottery Corporation. Within a month of Ms. Loring being hired, the credit card fraud department alerted Solutions’ principals that the Credit Cards were being used to transfer money to a PlayNow account;

d) Solutions cancelled The Credit Cards and two new credit cards issued. The new Credit Cards were added to the PlayNow Account and the unauthorized money transfers continued. The PlayNow Account was registered to Ms. Loring. She gambled using the PlayNow Account and a portion of the funds were transferred from the PlayNow Account to her personal bank accounts;

e) She was terminated on February 14, 2019; and

f) Ms. Loring used the Credit Cards to transfer just over $35,000 into the PlayNow Account. Solutions lost $32,973, as a portion of the money was recovered. CRIMINAL RECORD [ 4 ] Ms. Loring has two criminal convictions:

a) On or about Feb 27, 2018, Ms. Loring stole merchandise from Save on Foods in Prince George. She was convicted of theft on Jan 4, 2022, and received an 18-month conditional discharge; and

b) On or about Feb 1, 2017, while employed at Active Support Against Poverty (ASAP), Ms. Loring stole cheques, wrote them to herself totaling about $10,000 and paid her bills with them. She was convicted on Jan 4, 2022, and received a suspended sentence, a 24- month probation order and a restitution order of $4,469.85. THE LAW Criminal Code [ 5 ] The following sections of the Criminal Code apply here:

a) Punishment for theft 334 Except where otherwise provided by law, every one who commits theft (

a) if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of (

i) an indictable offence and liable to imprisonment for a term of not more than 10 years, or (ii) an offence punishable on

summary conviction;

b) Fraud 380

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars;

c) Sentencing — aggravating circumstances

380.1

(1) Without limiting the generality of

section 718.2, where a court imposes a sentence for an offence referred to in

section 380 …. it shall consider the following as aggravating circumstances: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (

b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market; (

c) the offence involved a large number of victims; (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; (

e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and (

f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. Non-mitigating factors

(2) When a court imposes a sentence for an offence referred to in

section 380 it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. Record of proceedings

(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence.

d) Purpose 718 The fundamental purpose of sentencing is to protect society and to 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 acknowledgment of the harm done to victims or to the community.

e) Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

f) Other sentencing principles 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, … (

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 should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

g) Restitution to victims of offences 738

(1) Where an offender is convicted or discharged under

section 730 of an offence, the court imposing sentence on or discharging theoffender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender,order that the offender make restitution to another person as follows: (

a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or thearrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as ofthe date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, wherethe amount is readily ascertainable;

h) Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment;

i) Procedure on Breach of Condition 742.6(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of whichlies on the offender, breached a condition of the conditional sentence order, the court may (

a) take no action; (

b) change the optional conditions; (

c) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optionalconditions; or (

d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. Case Law [6] The Crown relied on the following cases:

a) R. v. J.F., 2008 SCC 60;

b) R. v. Andersen, 2018 BCSC 2062,

c) R. v. Leuenberger, 2014 BCCA 156;

d) R. v. Buchan, 2014 BCSC 2591;

e) R. v. Skolnick, (SCC), [1982] 2 SCR 47;

f) R. v. Pete, 2019 BCCA 244;

g) R. v. Gladue, (SCC), [1999] 1 SCR 688;

h) R. v. Kodimyala, 2020 BCCA 275;

i) R. v. Milligan, 2017 BCPC 66;

j) R. v. Bruney, 2018 BCPC 182;

k) R. v. Penttila, 2020 BCCA 63;

l) R. v. Braun, 2021 BCPC 258;

m) R. v. Varga, 2021 BCPC 286;

n) R. v. Dickens, 2003 BCSC 537;

o) R. v. Dickson, 2007 BCCA 561; and

p) R. v. McCook, 2015 BCPC 1.

[ 7 ] Defence Counsel also relied on Gladue , Kodimyala, Milligan, Dickson and McCook and the following additional cases:

a) HMTQ v. Proulx , 2000 SCC 5 ;

b) HMTQ V. lpeelee , 2012 SCC 13 ;

c) R. v. Burkart , 2006 BCCA 446 ;

d) R. v. Whittaker , 2021 BCPC 8 ;

e) R. v. Ojeda , 2017 BCPC 279 ;

f) R. v. Houde , 2005 BCPC 632 ;

g) R. v. Eby and Goodman , 2005 YKSC 56 ;

h) R. v. Keatley , 2009 BCPC 249 ;

i) R. v. Bunn , 2000 SCC 9 ; and

j) R. v. Kratky , [1997] B.C.J. No. 3167 . SUBMISSIONS [ 8 ] I am indebted to the Crown and Defence counsel’s comprehensive written and oral submissions on all the topics and issues that I must consider in arriving at a just and appropriate sentence for Ms. Loring. Those submissions have allowed me to refer directly to them in making my findings and arriving at my decision.

C rown [ 9 ] The appropriate sentence is 9-12 months jail, followed by a two year probation order, and a stand-alone restitution order of $32, 973 payable to the Clerk of the Court for the benefit of Ryan and Jeffery Shannon (the principals of Solutions). [ 10 ] The " Coke principle" applies here such that Ms. Loring cannot face the jeopardy of an increased penalty for a subsequent offence unless she had been already convicted and sentenced at the time of the commission of the subsequent offence ( see Skolnick at paragraphs 50-58 ). Ms.

Loring had not been convicted of any offences when she committed the offences at bar. Previous convictions subject to the Coke principle can be looked to determine the offender's character and the prospects for rehabilitation, especially for similar offences ( see Pete at paragraph 39 ). [ 11 ] A P re-Sentence R eport (“PSR”) was prepared. The most relevant passages from the PSR are: a) “The subject shares at the time of the offences currently before the Court, she and her family were experiencing struggles in many aspects of their lives.

She advises their living conditions were poor, her husband's mental health was undiagnosed and his behaviour erratic, and she was experiencing her own personal struggles with gambling addiction and misuse of her medications,” b) "She expresses remorse for her actions noting it was beyond stupid,” c) "The subject has made some efforts to improve her situation. She self-reports having connected with an intake counsellor ...

She admits to having a gambling addiction but advises she has stopped online gambling... ,” d) "In January 2022, the subject was ordered to pay a total of $4,469.85 as part of sentences received in January 2022.

This restitution requires the subject to pay the agency directly and as of August 2022, she advises having not paid anything toward the total,” e) "The subject has a history of non-compliance related to reporting on community supervision orders...," f) "In January 2022, the subject was sentenced in Indigenous Court for her previous convictions ... she was not following through with recommendations made by the Elders Justice Council to work through her healing plan.

It was eventually decided that the support offered in Indigenous Court was not helpful for the subject due to her lack of engagement as well as poor follow through in connecting with resources and supports. She was excused from further court reviews.” [ 12 ] A forensic psychiatric assessment was also ordered. Despite several opportunities, Ms. Loring did not attend the scheduled appointments necessary to complete the assessment. [ 13 ] The following aggravating factors are present in this case:

a) As described in

Section 718.2(a)(iii) Ms. Loring abused a position of trust and authority, as an employee of Solutions;

b) She has not paid any restitution to the victims; and

c) She was charged with the same offence, fraud over $5,000 and attending court appearances when she committed the offence at bar. [ 14 ]

Section 718.2 (

e) requires that 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.

[ 15 ] The following mitigating factors are present in this case:

a) Ms. Loring has entered a guilty plea; and

b) She is an Indigenous person therefore Gladue principles apply. [ 16 ] The primary sentencing principles for fraud and dishonesty-related offences are denunciation and deterrence ( see Kodimyala at paragraph 42 ). [ 17 ] In Milligan the Court said the following about employment fraud at paragraph 34: “ ... where an employee is in a position of trust and that trust includes specifically handling the employer's money, the emphasis on sentencing must be one of denunciation and deterrence.

While it is appropriate to also consider the other sentencing principles, including rehabilitation, the goal of rehabilitation in these types of cases very often must take a backseat to the over-arching principles of denunciation and deterrence.” [ 18 ]

Section 742.1 describes Conditional Sentence Orders (“CSO”). A CSO is available for fraud over $5,000. The following mitigating factors are generally present when a CSO is imposed for an employee fraud: a guilty plea, lack of related criminal record, genuine remorse, and at least some restitution paid.

Individuals who have received CSOs for employee fraud generally did not have outstanding fraud charges when they committed the fraud. [ 19 ] In Bruney , the Court stated that a CSO is not consistent with the fundamental purposes and principles of sentencing for individuals with previous fraud or similar convictions or where the accused could not reasonably be expected to successfully abide by its terms. [ 20 ] The case law has recognized that a gambling addiction can be a mitigating factor and can reduce a sentence because of diminished moral culpability. [ 21 ] In Penttila , the Court of Appeal found the trial judge erred in concluding that a psychiatric gambling disorder could never be considered a mitigating factor in sentencing in the context of fraud and thefts stating the following about gambling disorders respecting employee fraud and theft saying at paragraphs 69,70 and 74: [69] A medically recognized disorder, shown to have caused or contributed to the commission of the offence, may be regarded as a mitigating factor warranting a reduction in sentence on the grounds that the offender's moral culpability is attenuated.

In addition, general deterrence and denunciation, which ordinarily figure prominently in sentencing offenders for thefts and frauds involving a breach of trust, may be entitled to less weight where the offender's behaviour is attributable to an underlying pathology. [70] Where the disorder is found to have contributed to the commission of the offence, the weight it should be given as a mitigating factor will necessarily be fact-driven and context-dependent… … [74] …[T]hose in positions of trust who steal significant amounts of money from their employers must understand that there will be no easy refuge in an unsubstantiated claim made by counsel that the offending conduct is attributable to a gambling disorder.

In a case where a dispute exists about whether the offending behaviour was caused by a gambling disorder, detailed and specific evidence, including medical evidence, will generally be required… [ 22 ] The Court ruled that the sentence of two years jail was not demonstrably unfit. While there was evidence of a medically diagnosed gambling addiction, it did not find an error in the sentencing judge not considering the gambling addiction to be a mitigating factor. The accused was able to control her gambling addiction.

She was not significantly impaired in her behaviour while the offence was ongoing, despite significant stresses in her life, using all her own money up for gambling before defrauding her employer, and using most of the fraudulent money for gambling. [ 23 ] In Braun , the C ourt accepted that the medically diagnosed depression and gambling addiction of the accused contributed to her offending, and moral culpability was somewhat reduced. The accused used the fraudulent money to fund her gambling addiction.

Her moral blameworthiness was not significantly lessened because of a previous pattern of thefts from employers, and knowledge of her risk factors. [ 24 ] In Varga , the C ourt treated the accused's gambling problem as a mitigating factor that played a role in the commission of her offence, fraud over $5,000, despite the absence of evidence that the accused had a medically diagnosed gambling addiction. Some of the stolen money was used for activities unrelated to a gambling problem; the gambling problem only mitigated part of the fraud. It did not result in a significant reduction of the sentence. [ 25 ] Ms.

Loring's gambling issues described in the PSR are not mitigating. No medical evidence was provided demonstrating that she suffers from a gambling addiction. Medical evidence is generally required to demonstrate that the offending behaviour was caused by a gambling disorder. Even with medical evidence, gambling addictions will not always be considered mitigating or diminish moral culpability, as in Penttila . [ 26 ] If the Court finds that despite not having a medical diagnosis, Ms.

Loring's gambling problems are a mitigating factor, Crown submits that her gambling problems should not significantly reduce the sentence, because she did not use the fraudulent money on gambling alone as described in Varga . [ 27 ] Further, if the C ourt accepts Ms. Loring's gambling problems as mitigating, this should not significantly reduce the sentence because of Ms. Loring's pattern of stealing money, like the accused in Braun. After being charged with fraud in relation to her previous

job, Ms. Loring accepted a position at Solutions where she was handling large amounts of money. She should have had some knowledge of her risk factors. The accused in Braun, unlike Ms. Loring , also had a medically diagnosed gambling addiction (and depression), which went to her knowledge of her risk factors, but also was the reason why her gambling addiction was m itigating. [ 28 ] Factually, similar cases to Ms.

Loring's situation have a sentencing range from 9 months to 3 years jail (including CSOs ). [ 29 ] In Varga , the sentence was nine months jail, two years probation, and restitution for fraud over $5,000. She was employed as a caregiver, and defrauded one of her patients, a vulnerable person, of almost $15,000. Mitigating factors included a guilty plea, remorse, no criminal record, and an undiagnosed gambling addiction.

Aggravating factors included abuse of a position of trust, a vulnerable victim, the fraud continued for 18 months, and no restitution paid. [ 30 ] The C ourt ruled that a CSO would not adequately address the need for denunciation and deterrence, given the aggravating factors. Ms. Loring's situation is similar to Varga; but more aggravating because she defrauded her employer of more money and committed the offence when she had outstanding fraud charges. [ 31 ] In Dickens , the sentence was three years jail for stealing $173,159 from a small hospital, while the Director of Finance.

Mitigating factors included remorse, no criminal record, and a guilty plea. Aggravating factors included abusing a position of trust, no restitution paid, a significant amount of money stolen over a lengthy period, and a sophisticated fraud. The Court rejected a CSO stating: It is clear from the cases involving individuals who have abused a position of trust, that general deterrence and denunciation are significant factors to be considered. The fact that Mr.

Dickens had no previous convictions for theft is not a factor to be considered in sentencing for this type of offence.” An additional factor for the lengthy jail sentence was that the accused would likely not pay restitution. Ms. Loring is unlikely to pay any restitution. [ 32 ] In Braun , the s entence was 22 months imprisonment, two years’ probation and a restitution order for defrauding an employer of just over $30,000. The accused owed restitution for three previous offences at the time of the offence and sentencing. Some of the restitution was paid.

Mitigating factors included a guilty plea, diminished moral culpability due to major depression and a gambling disorder. Aggravating factors included abuse of a position of trust, the fraud occurred over a one-year period and involved 40 fraudulent cheques, a criminal record for similar offences, and a just completed probation order. Ms. Loring's situation is like Braun: she abused a position of trust, pled guilty, the amount stolen is around the same over $30,000, the fraudulent money was used for gambling, and she owes restitution for a previous fraud. Ms. Loring's situation varies from Braun because Ms.

Loring does not have a medically diagnosed gambling disorder, or other illness that could reduce her moral culpability. [ 33 ] In Dickson , an appeal of a 12-month jail sentence for stealing $70,000 from an employer was granted and replaced with a CSO. Aggravating factors included a breach of trust and convictions for similar offences. Mitigating factors included the full amount of restitution was paid and the accused was getting professional help for her medically diagnosed bipolar disorder.

A physician gave the professional opinion that the accused was suffering with an undiagnosed and untreated mental illness at the time of her offence. The accused did not represent a danger to the community. Her moral culpability was diminished, justifying the replacement of a "real" jail sentence. [ 34 ] Ms. Loring's situation differs from Dickson. She has not provided any evidence that she has a medical diagnosis for an illness, capable of diminishing her moral culpability.

She has not shown that kind of progress or paid restitution. [ 35 ] In McCook , the Court sentenced the Indigenous accused to 2 years less a day CSO, a 3-year probation order that included a restitution order, for theft over $5,000. The accused stole a significant amount of money from her employer, over the course of a year and a half. The accused was suffering from a gambling addiction and was stealing money to fuel her addiction. No medical diagnosis was given but a Gladue R eport and Pre-Sentence Report were provided.

The Court did not specifically identify the gambling addiction as a mitigating factor, but recognized the Gladue factors ( presumably including the gambling addition) accounting, at least in part, for the criminal behaviour. [ 36 ] Aggravating factors included breaching a position of trust, stealing a significant amount of money, utilizing business knowledge to plan and then execute the thefts over a significant period and o nly ceasing activities when found out. She tricked family and friends to assist her in her crimes, and she deprived her community of the benefit of the funds.

Mitigating factors included genuine remorse, a confession when confronted, a guilty plea, no criminal record, the community forgiving her and wanting alternatives to incarceration. [ 37 ] Ms. Loring's circumstances are similar to McCook. She is Indigenous, and Gladue factors apply. Ms. Loring's case is more aggravating because unlike the accused in McCook, Ms. Loring had outstanding fraud charges when she committed the offence before the C ourt. The accused in McCook was also genuinely remorseful, and, as part of their values and justice, her community forgave her and supported a non-traditional jail sentence.

The principals of Solutions have not expressed their support for a non-traditional jail sentence. [ 38 ] The ability of the accused in McCook to comply with a CSO was also not in doubt. In contrast, Ms. Loring was asked to leave Indigenous Court for her previous offences by the elders, due to her poor compliance and engagement. [ 39 ] Ms. Loring's case fits within the lower end of 9 to 12 months incarceration of the sentencing range for the following reasons:

a) She is to be considered as a first time offender;

b) The fraud was not sophisticated and was not over a lengthy period;

c) The amount stolen was less than some cases; and

d) She abused a position of trust and had outstanding charges when she committed the fraud. [ 40 ] A sentence of 9 to 12 months jail is eligible for a CSO. A C SO is not an appropriate sentence in this case for the following reasons:

a) Ms. Loring was facing fraud charges over $5,000 when committing the fraud at bar;

b) She committed two frauds within a short time. Her risk for committing another employment fraud and prospects of rehabilitation must be considered when sentencing her. There is a pattern of stealing from her employers;

c) Even as a first time offender, denunciation and deterrence are the primary sentencing principles for employment fraud, and this case requires a traditional jail sentence;

d) Ms. Loring cannot reasonably be expected to successfully abide by conditions of a CSO. She has a poor history of compliance with court orders. She did not follow through with the Elders recommendations and her healing plan in Indigenous Court respecting her previous offences and was asked to leave Indigenous Court;

e) She has not paid any restitution on her previous fraud or this fraud;

f) She did not follow through with her psychiatric assessment, despite multiple opportunities;

g) She is Indigenous, and Gladue factors must be considered. However, her situation is very different from McCook . Her ability to comply, and the risk for committing additional fraud, particularly from employers is a concern;

h) Ms. Loring does not have extreme personal mitigating factors. As described in the PSR, genuine remorse is not demonstrated; and

i) There is no evidence that her moral culpability was diminished to justify a CSO. She self-reported that she deals with an undiagnosed gambling addiction. Had she attended her appointments for the psychiatric assessment, the C ourt would have better insight into her mental health to assist in sentencing. There is little evidence that she suffers from a gambling addiction or other mental health problems. [ 41 ] A traditional jail sentence of 9 to 12 months is the appropriate range of sentence for Ms. Loring. It is proportionate to the gravity of the offence, and her moral culpability.

The primary sentencing principles are deterrence and denunciation for fraud of an employer, and even as a first time offender, this offence attracts a traditional jail sentence, as in the cases of Dickens and Varga. Defence Background [ 42 ] Ms. Loring was born on July 30, 1987, and is currently 35 years old. She was 31 years old at the time of the offence. She has a sister and two brothers, and a number of half-siblings. Throughout her childhood, Ms.

Loring moved around Northern BC, residing mostly in New Hazelton and Terrace until she moved to Prince George in 2015. [ 43 ] She is a status member of the Gitwangak Band and identifies with the Wolf Clan from the House of Gwininitxw, Gitxsan Nation. Her childhood was dysfunctional, unstable, and deeply marred by the residential school system. Her father, along with most of his family, attended Lejac Residential School, resulting in an enduring legacy of alcohol and drug misuse, physical and sexual abuse, and neglect. [ 44 ] For most of Ms.

Loring's life, her father was an angry drunk who verbally and physically abused her, her siblings and her mother. She has traumatic memories of him assaulting her mother and beating the children with objects including an axe handle; often for refusing to consume alcohol with him. Her mother is schizophrenic and bi-polar, who struggled with alcohol and drug misuse throughout Ms. Loring's childhood. [ 45 ] From as early as she can remember, family members and friends molested Ms.

Loring until she was removed by the Ministry of Children and Families (MCFD) at age 3 or 4. [ 46 ] She lived in multiple non-Indigenous foster homes, sometimes with one or two of her siblings until age 12. She always felt scared of what abuse would occur in the various placements because she and her brothers were mentally, physically, and sexually abused. [ 47 ] She moved back to Gitwangak at age 12 and resided with her uncle where a family friend sexually assaulted her. When she disclosed the assaults, her family believed the offender and she was kicked out of the home at age 13. [ 48 ] Ms.

Loring's father currently resides in Vancouver and recently stopped drinking. Ms. Loring has started to repair her relationship with him. Her mother lives in Ontario and Ms. Loring has reached out to her on occasion. However, they have no significant relationship. [ 49 ] She has been in a common-law relationship with Billy Morrison since she was 13 and he was 19. They have five children, aged 16 to seven. She had her first child when she was 18. She has raised her children without MCFD involvement. [ 50 ] Mr. Morrison has rarely worked due to previously undiagnosed mental health issues.

He was recently diagnosed with bipolar disorder, psychosis and schizophrenia and has been receiving treatment by injection every three weeks. She continues to work on getting him disability benefits. She requires his assistance to follow up with his family doctor. [ 51 ] Ms. Loring’s relationship with Mr. Morrison is “not great.” He verbally, physically, and sexually abused her. He does not support the family financially. He does not assist with the household chores or the children’s care, school or mental health difficulties.

Recently, she found out he was having an affair and they separated for a while but he has returned to the family home. Despite his infidelities, she has stayed in the relationship due to her low self-esteem. She had had no positive role models to assist her with personal problems or financial struggles. [ 52 ] Her children also suffer from a variety of mental health issues. Her oldest son was diagnosed with a cognitive disability and depression. He has refused to attend counselling and is struggling to attend school. Ms. Loring is working on having him attend Grade 10

online. [ 53 ] Her 13-year-old daughter was bullied at school, to the extent that she was no longer attending school. Ms. Loring ultimately moved her to a different school, and while her interactions with her classmates improved, she suffers from depression and anxiety arising from the harassment and is now attending Grade 9 online. [ 54 ] Her three youngest children, attend Nusdeh Yoh Elementary School, are doing well, and are involved in Indigenous drumming. In March 2021, her youngest child, was hit by a car.

He was in the hospital with a brain bleed but seems to have substantially recovered. [ 55 ] Based on her own experience of physical and sexual abuse within the MCFD system, Ms. Loring has been petrified about disclosing any issues or struggles to any third parties for fear that her children will be taken away. [ 56 ] At the time of the offence, Ms. Loring was struggling financially and it was difficult for her to buy food and pay her bills. She was renting a house that was in serious disrepair and eventually moved out, losing most of her things due to a bed bug infestation.

She moved to another low-rent house that had plumbing and roof issues that the landlord did not repair. [ 57 ] Ms. Loring has lived on her own and supported herself since she was 13. She completed high school in 2005. In 2007, she obtained an Administrative Assistant Certificate and completed a Business Technology program. [ 58 ] From 2007, she worked at Tim Hortons in Terrace as an Assistant Manager until she moved to Prince George in 2015. From 2015 to 2017, she worked as a caseworker assistant at ASAP. She was dismissed from that position and charged with fraud.

She worked at Solutions from November 13, 2018, to February 14, 2019. [ 59 ] Since December 2019, Ms. Loring has worked in a variety of positions with Northern Health. Her last position was as a Primary Care Provider. In all positions with Northern Health, Ms. Loring was not responsible for handling money. Her direct supervisor is aware of her previous convictions and this matter. [ 60 ] Ms. Loring was on stress leave from August 13 to 23, 2022, and in December 2022, she went on stress leave and collected Medical Employment lnsurance for 13 weeks.

She was asked to return to work, but was not mentally well enough to do so. Since April 2023, she has had no income whatsoever. She continues to work on getting social assistance for herself. [ 61 ] Due to ongoing mental health concerns, she is not working and has fallen behind with her rent. She is currently assisting her landlord with various jobs to offset her rent. The power and gas was turned off at her home. She accessed the Homeless Prevention Plan and received $450 that was paid to BC H ydro so power could be restored. [ 62 ] Ms. Loring suffers from depression, anxiety, and is likely bi-polar.

She experienced significant post-partum depression after her pregnancies. Her last severe bout of depression was in 2022 and she took time off work. Since then, her family doctor has diagnosed her with thyroid, major depressive, and generalized anxiety disorders. She takes medications as prescribed but is working on reducing her reliance on them. [ 63 ] Since 2016, Ms. Loring has had chronic, unrelenting headaches and was taking prescribed Tylenol 3's. At the time of the offence, she was taking eight plus pills daily which made her thinking cloudy and disconnected.

She developed an addiction to opiates by way of prescribed codeine. She reduced her codeine dose by 50% and on August 1, 2022, she completely stopped taking T3's. She suffered with withdrawals for about a week but now feels clear headed for the first time in years. To further reduce her codeine dependency, Ms. Loring tried edible marijuana to assist with her headaches. She currently uses CBD to assist with her headaches in the evening and it has the added benefits of calming her and assisting with her sleep. [ 64 ] In March of 2022, Ms. Loring went on a wait list for Central Interior Native Health (CINH).

H er first appointment as a client was on May 24, 2023, to address her issues. Her children are also clients of CINH. [ 65 ] Since May 2022, she has had appointments with the Mental Health ACT Team. As she was taking her medication as prescribed and was attending appointments without assistance, she did not sign up for ongoing support. [ 66 ] In July 2022, Ms. Loring applied for BC Housing. She is on the wait - list so she continues to rent a house for her family. She has followed up with BC Housing and submitted proof of her two children’s' cognitive disabilities so she can be moved up the list.

Reducing her rent will significantly reduce her expenses. [ 67 ] In July 2022, Ms. Loring started working with a mental health clinician to deal with childhood and hidden trauma. The in-person counselling is assisting her with mental health and her addictions. She continues to see her doctor for support for her ongoing mental health issues. [ 68 ] In December 2022, Ms. Loring met an outreach worker at her youngest children’s school as she was struggling to manage their appointments.

Since April 2023, she received help with following up with assistance programs, getting forms submitted to various agencies and offering emotional support. [ 69 ] In 2022, Ms. Loring admitted that she suffers from a gambling addiction. She accessed the Employee & Family Assistance Program (EFAP) through Northern Health, which offers specialized counselling for healthcare employees, however, she found that the service was primarily accessing online materials. She completed three modules and reviewed several sections related to gambling but felt the format did not provide much benefit.

She requested in-person counselling but was initially unable to obtain appointments due to COVID constraints. In March 2021, she started seeing a counsellor via video conference. The counsellor was in the U.S.A. and she did not find it beneficial. Ms. Loring removed all online gambling applications from her phone and gave up her smart phone so that she will not be tempted to gamble. [ 70 ] Ms. Loring set up a bank account so a portion of her paycheque will go into it once she returns to work. That way she can set up

an e-transfer or automatic payments for restitution. [ 71 ] Ms. Loring has no idea how to budget or save and would like assistance to learn financial literacy. She asked about this in Indigenous Court but no assistance could be provided. Sentencing [ 72 ] Sentencing is governed by S ections 718 , 718.2 (

d) and (e), 742.1 and 380 of the Criminal Code .

Section 718.2 (

d) and (e), directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 73 ] In Kodimyala , the Court of Appeal confirmed that the primary sentencing principles in fraud cases are denunciation and deterrence.

It also reaffirmed the “proportionality principle.” [ 74 ] Proulx makes it clear that a CSO can satisfy both denunciation and deterrence. There is no requirement for “exceptional circumstances” to have a CSO be a just and fit sentence in the case of employment fraud. At paragraph 127 The Supreme Court of Canada said : [127] 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. [ 75 ] Proulx encourages the use of conditional sentence orders as an alternative to incarceration, where the following prerequisites are present:

a) The offence is not punishable by a minimum term of imprisonment;

b) The C ourt must impose a prison sentence of less than two years;

c) That the safety of the community would not be endangered by the offender serving the sentence in the community; and

d) The CSO must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . [ 76 ] When assessing the danger to the community posed by an offender, the Court must consider:

a) The risk of the re-offending; and

b) The gravity of the damage that would ensue in the event of a further offence. [ 77 ] In Burkhart, the BC Court of Appeal confirmed that it is not necessary for an offender to show that there are unusual circumstances in order to obtain a CSO. [ 78 ] As was noted in Bunn and Kodimyala, collateral consequences are not irrelevant and may be taken into account by the sentencing judge. [ 79 ] Penttila affirms that a gambling addiction may diminish moral culpability and can thereby reduce a sentence.

Burkart also supports this, even when there is little evidence confirming whether the gambling is an addiction or a problem. [ 80 ] Braun also recognized gambling as a consideration on sentencing and followed other cases that looked at other addictions and mental health disorders that must be considered as they also diminish moral culpability. [ 81 ] Gladue and lpeelee, make it clear that the impacts of historic injustices arising out of colonization and the residential school system must be considered in cases involving Indigenous offenders. The over-representation of Indigenous women in jail is atrocious.

While making up only 4.1% of the general population, Indigenous females account for 33% of the federal jail population. This means that one out of every three women incarcerated in the federal system is Indigenous. In British Columbia, Indigenous women make up over 50% of inmates in the federal and provincial correctional facilities.

The incarceration rate of Indigenous women continues to be much higher (12.5 times) than that of non-Indigenous women. ("Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses", Department of Justice, Government of Canada, https:l/www.iustice.gc.ca/eng/rp-pr/ir/oip- cis/p3.html). [ 82 ] In Burkart , the offender, a manager of a bank, stole $81,400 over a 1-year period, from her employer due to her gambling problem. The trial Judge found that because there were no unusual circumstances, a CSO should not be granted.

The Court of Appeal granted the appeal of sentence on the basis that the "unusual circumstances" test was not the basis for the denial of a CSO and substituted a CSO of 18 months. [ 83 ] In Whittaker , the offender, a 51-year-old bookkeeper, stole $746,046.62 from her employer, a guide company over a 38-month period. The fraud involved over one thousand transactions, including use of the company credit cards. She confessed before her fraud was detected as an imminent audit would have uncovered the fraud. She had a gambling addiction that was considered a mitigating circumstance.

The guide company, and its principal, went bankrupt. The offender was the owner's trusted employee on all financial matters. The Court concluded that a CSO was appropriate. By the time of sentencing, it had been seven years since the events and the Court concluded that she posed no risk to the community. [ 84 ] In Ojeda , the offender was a financial services coordinator for the professional body, who misappropriated $373,747.00 through fraudulent transfers and using the employer’s credit cards for personal purchases. $10,000 was returned by the time of sentencing.

In addition, a condominium with equity of about $205,000 was transferred, leaving the outstanding amount payable $162,375. She had a

dated criminal record for a theft and was sentenced to a 2-year less 1 day, CSO. [ 85 ] Other authorities where CSOs were ordered include the following:

a) In Houde , the offender defrauded a credit union of $168,000 over ten-and-a-half months. The fraud was motivated by greed in order to develop and enhance his own competing business. The Court concluded that he was in a high level of trust, and effectively controlled the financial institution. His fraud was detected, and he suffered public humiliation and embarrassment associated with the publicity of his criminal conduct in a small community, resulting in a loss of his wife's business and necessitating a move away from the community.

The Court concluded that he had not benefited significantly from his fraud, and lost other investments as a result and concluded that a CSO of 2 years less 1 day was appropriate;

b) In Eby and Goodman , one offender pleaded guilty to forgery and breach of trust involving two transactions that defrauded a housing corporation of $318,575. She confessed and was unable to find alternative employment in the small community where she resided with her two children. The judge imposed a 15-month CSO;

c) In Keatley , the offender, an assistant manager of a credit union, defrauded her employer of $537,267 over 15 months. There were in excess of 60 transactions. She had a gambling addiction that she was funding. She received a CSO of 2 years less 1 day;

d) In Bunn , the offender, a disbarred lawyer, stole $86,000 in trust funds. The Manitoba Court of Appeal overturned the trial judge's custodial sentence and imposed a CSO of 2 years less 1 day, citing ruin and humiliation as factors; and

e) In Kratky, the offender, a manager of 3 dental practices, used fraudulent banking procedures to steal $436,535 but repaid all the money. They had a record for theft under $200 from 19 years earlier. The sentence was an 18-month CSO. Aggravating and Mitigating Factors [ 86 ] The aggravating factors are that Ms. Loring was in a position of trust and used her position to fraudulently transfer funds to an online gambling internet site. The amount, while not as substantial as most of the case law, was not nominal. The thefts occurred over numerous transactions. [ 87 ] Looking at

Section 380.1 (1) specifically:

a) The fraud was unsophisticated, not complex and occurred over three months with minimal planning;

b) The offence had no impact on the stability of the Canadian economy, a financial system or any financial market;

c) The offence involved only two victims;

d) No Victim Impact Statements were provided and there are no personal circumstances that suggests there was a significant impact on the victims attributable to their age, health, or financial situation;

e) Ms. Loring did not take advantage of any prominent position within the community;

f) She was not in a position that required licensing; and

g) She took no actions to cover up her fraudulent behavior. [ 88 ] At the time of the offence, Ms. Loring was 31 years old and is therefore not a youthful offender, however, she successfully stayed out of the criminal justice system until 2019. [ 89 ] Mitigating and neutral factors and factors that reduce Ms. Loring’s moral culpability include that she:

a) Entered a guilty plea, acknowledged her wrongdoing, victims were not required to testify and court time was saved by not pursuing a lengthy trial;

b) Had no criminal record at the time of the offence; and these charges could have been dealt with at the same time as her other matter, had the Information been sworn and served in a timely manner;

c) Is remorseful and recognizes the harm done to her employers and society;

d) Was struggling with untreated depression and other mental health concerns and is now taking medication as prescribed;

e) Was struggling with an opiate addiction making her feel foggy and unconnected. She has now been clean for approximately 9 months; and

f) Was struggling with a gambling addiction that the funds supported. Some winnings were used to pay bills. The funds did not support an extravagant lifestyle as she was behind on all her basic bills. Since the offence, she has not engaged in any gambling, removed all applications from her phone and gave up her smart phone. [ 90 ] The RCMP arrested Ms. Loring at work rather than serving her a summons at her residence. Though this was humiliating, Ms. Loring feels that was the wakeup call she desperately needed and may well have saved her life.

In custody, she accepted that her T3 use was out of control as she started detoxing in cells. She is profoundly regretful that it took an arrest for her to “get clean.” [ 91 ] Ms. Loring is remorseful for her actions and wishes to write an apology to the Shannon’s. She is remorseful for how her actions have negatively affected her children.

[ 92 ] Since the offence, Ms. Loring has accepted her drug and gambling addictions and gained insight into both. She feels the combination of stressors including chronic headaches, mental health issues, addictions, sexual abuse and other personal trauma, her husband’s undiagnosed mental health issues, her children's health issues, other traumatic family incidents and financial challenges led to her behaviour. She also felt the lack of support she had not established in Prince George played a role in her behaviour. [ 93 ] Leaving Terrace was difficult for Ms.

Loring and essentially left her in an abusive relationship without the support of family and friends. She has opened up to the people in her life regarding her addictions, including her partner, her children, her friends, and her employer and they can now provide her with ongoing support. [ 94 ]

Section 718.2 makes it clear that the least restrictive sanctions should be imposed. This case satisfies the prerequisites set out in Proulx . A CSO is just and fit in this case. Factors supporting a CSO include the following:

a) Ms. Loring had no criminal record at the time of the offence;

b) The offence was non- violent;

c) She is currently on leave from Northern Health, but has completed her "return to work" interviews. She works in a position where she does not handle monies;

d) Her employment status is continually being assessed, and she may be terminated if she is incarcerated;

e) She financially supports her children and is the sole provider for her family. She also supports the children with their school, medical, and mental health issues. The impact of a prison term on the children would be significant and likely extremely detrimental to both their physical and mental well-being;

f) She has taken significant and objectively identifiable steps towards rehabilitation regarding her opiate misuse;

g) She continues to work on her mental health with counseling;

h) She accepts that she suffers from a gambling addiction and has curtailed all access to online gambling sites by giving up her smart phone. She intends to work on this addiction after the completion of treatment for trauma;

i) She acknowledges the harm stealing did to her employers and their business;

j) She acknowledges the harm that employee theft, drug misuse and gambling does to society and counsels her children on the dangers of same;

k) Prosecution and conviction carry stigma which she has, to some extent, felt at her workplace;

l) She has already suffered negative consequences as a result of her criminality, including having her picture printed in the newspaper and online and being arrested at her place of employment;

m) The community benefits from her continued work as a support worker, especially now while the medical system is still dealing with the repercussions of the pandemic, coupled with staffing shortages;

n) The public interest is better served by a non-custodial sentence, so she can return to work to enable restitution payments and keep her children out of care;

o) The risk to society is extremely low as Ms. Loring's offences can only be committed in a position where she handles employers funds; and

p) She is at low risk to reoffend. This is supported by the fact that four years have passed since the offence. [ 95 ] It is undisputed that the paramount sentencing objectives for employee fraud are deterrence, denunciation and public safety. A CSO is adequate to satisfy these objectives. Imposing a CSO, followed by probation is fit and appropriate as serving such a sentence would in no way endanger the community. [ 96 ] Ms. Loring has turned her life around since the offence. There is little to no risk to society, as Ms.

Loring has proven that she can lead a pro-social lifestyle as she has done so for the four years since the offence. [ 97 ] Ms. Loring is an Indigenous female with significant Gladue factors. As described earlier the Gladue factors in this case cannot be overstated. [ 98 ]

Section 718.2(d), coupled with Gladue factors, and the fact that she is the sole provider for her five children, further support a CSO over incarceration. [ 99 ] The appropriate sentence is a 12-month conditional sentence order, with lengthy probation to include the following:

a) House arrest for 9 months, with exceptions for work and medical appointments for herself and her children;

b) Curfew from 10PM to 6AM for the remainder of the CSO;

c) Counseling, with a focus on trauma and addiction;

d) A psychiatric forensic assessment to diagnose any other mental health disorders;

e) A Rogers Order;

f) An abstain clause for gambling;

g) Community Work Service (25 hours);

h) An apology letter; and

i) A restitution Order. SUBSEQUENT SUBMISSIONS [ 100 ] On August 22, 2023, with the consent of the Crown, defence counsel provided some additional information about Ms. Loring's circumstances since the sentencing hearing on May 18, 2023.That information included:

a) Ms. Loring, her partner and her children became homeless. They made plans to return to her home community, Gitwangak, but prior to the move their possessions were stolen;

b) One of Ms. Loring's brothers was killed in a bear encounter in June;

c) She slipped back into opioid use for a short time but she and her partner have been clean for over a month;

d) Some of her children were removed by MCFD and are now living with extended family;

e) The family has relocated to Gitwangak and are receiving assistance from a variety of resources to secure appropriate housing and health care; and

f) There are legal assistance resources available to Ms. Loring through Unlocking Aboriginal Justice to monitor any community based Court orders. [ 101 ] In response, the Crown recognized Ms. Loring’s plight and the steps she has taken but that a prison sentence remains the appropriate sentence. Ms. Loring’s Statement [ 102 ] Ms. Loring told the Court that she was sorry and that she hoped she could forgive herself and not be so embarrassed. She wants to do better for her children and herself. She knows that she has hurt others, is sorry for that and will never do it again. DISCUSSION [ 103 ] Ms.

Loring's upbringing and background are clear examples of the tragic indicia of the systemic factors described in Gladue and Ipeelee, which I must carefully consider. In addition, as directed in Ipeelee I must apply a different method of analysis in determining a fit sentence for Ms. Loring as an Indigenous offender. That approach to sentencing formed a considerable portion of defence counsel's submissions but received much less emphasis by the Crown. [ 104 ] I find the aggravating factors to be:

a) Ms. Loring abused a position of trust and authority, as an employee of Solutions;

b) The amount of the fraud was significant;

c) She has not paid any restitution on this or her previous fraud file; and

d) She was attending court appearances for a similar fraud against an employer while she committed the offences at bar. [ 105 ] I find the mitigating factors to be:

a) Ms. Loring is an Indigenous person therefore Gladue principles apply;

b) She entered a guilty plea and acknowledged her wrongdoing. The victims were not required to testify and court time was saved;

c) She had no criminal record at the time of the offence. Had the Information been sworn in a timely manner and not over two years after the offences occurred it may have been able to be concluded at the same time as her other matters;

d) She has limited remorse but has acknowledged the harm done to her employers and society;

e) She had untreated depression and other mental health concerns at the time of the offence and is now taking medication as prescribed. She had an opiate addiction but has now been sober for several months except for the slip mentioned earlier; and

f) She had an undiagnosed gambling addiction that the fraud supported and was used, in part, to pay household bills. She did not have an extravagant lifestyle. [ 106 ] I also considered the additional factors described in

Section 380.1 and conclude:

a) Ms. Loring’s fraud was unsophisticated, occurred over 3-months with a minimal planning but continued until detected;

b) It had no impact on the stability of the Canadian economy, a financial system or any financial market;

c) The offence involved one victim, Solutions, but also impacted its principals, Ryan Geoffrey Shannon and Jeffery Todd Shannon;

d) I cannot determine if there was a significant impact on the victims attributable to their age, health, or financial situation becauseVictim Impact Statements were not provided;

e) She did not take advantage of any prominent position within the community;

f) She was not in a position that required licensing; and

g) She took no actions to cover up her fraudulent behavior. [107] Both the Crown and defence counsel suggest a similar period of incarceration followed by a lengthy Probation Order. Wherethey disagree is whether Ms. Loring should serve her sentence in the community or in a prison. [108] Proulx allows for the use of a CSO as an alternative to prison, where the following prerequisites are present:

a) The offence is not punishable by a minimum term of imprisonment;

b) The Court must impose a prison sentence of less than two years;

c) That the safety of the community would not be endangered by the offender serving the sentence in the community by considering: i. the risk of any re-offending, ii. the gravity of the damage that would ensue in the event of a further offence, and

d) The CSO must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [109] Proulx endorses strict terms on a CSO amounting, in some cases, to house arrest. It also acknowledges that the sentence imposedcould be longer than a prison sentence for the same offence. Any breach of the CSO could result in an offender been committed to prisonunder

Section 742.6(9)(

d) for the remainder the sentence. [110] I have carefully considered the following persuasive submissions of both the Crown and defence counsel on whether a CSO isappropriate here: Crown

a) Ms. Loring committed two frauds within a short time. Her risk for committing another employment fraud and prospects ofrehabilitation must be considered;

b) Denunciation and deterrence are the primary sentencing principles for employment fraud often resulting in a prison sentence;

c) She has a poor history of compliance with court orders. Given her past history she cannot reasonably be expected to successfullyabide by conditions of a CSO; and

d) There is no evidence that her moral culpability is diminished sufficiently to justify a CSO. There is little evidence that she suffersfrom a gambling addiction or other mental health problems. Defence

a) Ms. Loring had no criminal record at the time of the offence and it was nonviolent;

b) She has taken steps towards rehabilitation regarding her opiate misuse and continues to address her mental health through counseling;

c) She suffers from a gambling addiction and has curtailed all access to online gambling sites. She intends to work on this addictionafter the completion of treatment for trauma;

d) In addition to the stigma of prosecution and conviction she has suffered other negative consequences as a result of her criminality;

e) She is at low risk to reoffend, and the risk to society is extremely low as the offences can only be committed by a person in a positionto access employers funds;

f) The community benefits from her continued work in health care while the medical system is still dealing with the repercussions ofthe pandemic and staffing shortages. The public interest is better served by a CSO, so she can return to work, make restitution paymentsand care for her children; and

g) She is the sole provider for her family and meets all of the needs of her five children. The impact of a prison term on the childrenwould be detrimental to their physical and mental well-being. [111] Although the Courts regularly rely on ranges with regard to sentencing, each case must be determined on its own set ofcircumstances as they pertain to the events and the offender. It is commonly accepted that sentences imposed in other cases may be ofsome limited assistance in determining a fit sentence. This was discussed by the Supreme Court of Canada in R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, where the Court said at paragraph 92:

92 . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For these reasons, consistent with the general standard of review we articulated in Shropshire , I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [ 112 ] Earlier in paragraph 81 of the same decision: 81 . . . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v . Sargeant . . . "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [Emphasis in original] [ 113 ] The Supreme Court of Canada revisited the role of the sentencing judge in R. v.

Nasogaluak , 2010 SCC 6 , where the Court said at paragraph 43: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case . . .

No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case . . . The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [ 114 ] That concept was further addressed by the British Columbia Court of Appeal in R. v. Voong , 2015 BCCA 285 , at paragraphs 6 and 7 , where the Court said: [6] Imposing a sentence for criminal conduct is in the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [7] Much has been written about the philosophical principles that underlie our present day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment.

As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate courts. [ 115 ] Although the sentencing principles of denunciation and deterrence are a primary consideration in fraud cases, the Court must also consider the circumstances of the offence, as well as the circumstances of Ms.

Loring including her Indigenous background. She did not have a criminal record at the time she committed these offences but she was before the Court for similar offences. Nevertheless, the principles of rehabilitation and making reparations must not be forgotten. Rehabilitation must include counselling, treatment, and programs to assist Ms. Loring in developing tools and skills to ameliorate the possibility of further offending. [ 116 ] I have considered the following in determining a fit and proper sentence in this matter:

a) Ms. Loring’s past and present circumstances;

b) Her criminal history and the similarity of that criminal history to this offence;

c) The sentencing principles and purposes in the Criminal Code and the application of those principles and purposes in a fashion that determines whether or not some of them should be given more or less priority;

d) The PSR and the Gladue factors described there and as mandated by the Supreme Court of Canada and subsequent cases;

e) The extensive case law presented by counsel and the other cases I have referred to in this decision; and

f) The thorough written and oral submissions of counsel and the presentence comments made by Ms. Loring. [ 117 ] After consideration of all of those factors, a just and appropriate sentence is a CSO. However, I have also concluded that to meet the principles of denunciation and deterrence it must be longer than that suggested by either the Crown or defence counsel. DECISION

[ 118 ] On Information 75570-1, Count 1 there will be a conditional stay of proceedings. [ 119 ] On Information 75570-1, Count 2 there will be a Conditional Sentence Order of 16 months followed by a Probation order of a further 20 months. [ 120 ] Ms. Loring, I am sentencing you on Information 75570-1, Count 2 to 16 months of imprisonment to be served in the community in the form of a conditional sentence order. If you breach the conditional sentence order, you could be arrested, kept in custody, your conditional sentence could be suspended and you could be ordered to serve the remaining portion in custody. The conditions of the order are:

a) You must keep the peace and be of good behaviour;

b) You must appear before the court when required to do so by the court;

c) You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation;

d) You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province;

e) You must report by telephone to a conditional sentence supervisor at 101-250 George Street, Prince George, BC, by telephone 1-250- 614-2678 or toll free 1-888-994-8444 by 3:00 PM tomorrow, August 23, 2023, and after that, you must report as directed by your conditional sentence supervisor;

f) If you do not speak to a conditional sentence supervisor, you must continue calling daily during regular business hours until you have spoken to one and have received further direction to report;

g) When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your conditional sentence supervisor at least three days before making the change;

h) You must have no contact or communication directly or indirectly with Ryan Geoffrey Shannon and Jeffery Todd Shannon except through or in the immediate presence of your conditional sentence supervisor for the sole purpose of apologizing to them;

i) For the first eight months of the conditional sentence you must obey house arrest by being inside the place where you live and regularly sleep 24 hours a day seven days a week, The exceptions are: i. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes; ii. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency.

You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor; iii. You are going directly to, or returning directly from, appointments or meetings regarding your children’s education, health or counselling or your health or counselling, iv. Between the hours of 3:00 pm and 7:00 pm on Tuesdays and Thursdays and between the hours of 1:00 pm and 6:00 pm on Saturdays to attend to shopping or other personal needs; v.

You remain in the common areas of the building or within 10 meters of the front door where you can immediately be located or you are on the lot but within 10 meters of the front door; vi. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest; vii.

If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep; viii. If a peace officer finds you outside the place where you are living during the house arrest hours and requests to see the permission, you must show it to the officer; and

j) For the remainder of the conditional sentence you must obey a curfew by being inside the place where you live and regularly sleep between 10:00 pm and 7:00 am seven days a week, The exceptions are: i. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes; ii. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency. You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor;

iii. You remain in the common areas of the building or within 10 meters of the front door where you can immediately be located or on the lot but within 10 meters of the front door; iv. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew; v. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep; vi.

If a peace officer finds you outside the place where you are living during the curfew hours and requests to see the permission, you must show it to the officer;

k) You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription;

l) You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for: i. Alcohol or substance use, ii. Mental health, iii. Trauma recovery, iv. Gambling addiction;

m) H a v i ng consented in court, y ou m ust: 1. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your conditional sentence supervisor, 2. Attend all scheduled appointments with your doctor, psychiatrist, psychologist, counsellor and mental health worker, 3. Take all medications and medical treatment prescribed for you, 4. Provide your conditional sentence supervisor with the names, addresses and phone numbers of your doctor, psychiatrist, psychologist, counsellor and mental health worker, 5. Authorize your conditional sente

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