R. v. Lang Date:, 2013 BCPC 278

Citation: R. v. Lang Date: 20130903 2013 BCPC 0278 File No: 76115-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEBRA ROSE LANG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MACCARTHY Counsel for the Crown: N. Barber Appearing on their own behalf: Debra Lang Place of Hearing: Nanaimo , B.C. Date of Judgment: September 3, 2013

[ 1 ] THE COURT (orally): Debra Rose Lang is before me on Information 76115-1. [ 2 ] Ms. Lang has applied and with the consent of Crown has withdrawn her plea of not guilty to Count 1 on the information. Count number one reads as follows: Debra Rose Lang, from the 26th day of March 2001 to the 26th day of March 2011, inclusive, at or near Parksville, in the Province of British Columbia, did commit theft of money, the property of Virginia Worcester of a value not in excess of five thousand dollars ($5,000), contrary to

Section 334 (

b) of the Criminal Code . Count 2 remains to be dealt with by Crown. [ 3 ] In this matter, Crown has outlined some of the circumstances that apply to this particular offence. The difficult thing for Crown is that this involves a long time scheme on the part of Ms. Lang to misappropriate monies from a person with whom she was not only an employee, but also a close family friend.

The challenge for Crown is that owing to the absence of a forensic audit, the amount in question is not known to Crown and Crown was not in a position to make any submissions to me with respect to whether the amount is a significantly lesser amount than $5,000 or some amount much greater than the $5,000 and therefore beyond the amount to which Ms. Lang has entered her plea of guilty. [ 4 ] The circumstances as set out by Mr.

Barber also indicate that there is at the present time civil proceedings being undertaken in connection with the total amount or the full amount of what is alleged to have been misappropriated in one fashion or another by the accused in this matter. [ 5 ] The plea of guilty entered by Ms. Lang is an admission of the essential elements of the offence.

No issue is taken with respect to the circumstances the Crown has briefly outlined to me. [ 6 ] I find the circumstances to be the facts, and based on those facts and the plea that has been entered, there is sufficient before me in order for me to accept the plea of guilty and to make a finding of guilt with respect to the offence contrary to s. 334 (

b) of the Criminal Code . [ 7 ] What I also have before me is a comprehensive victim impact statement. That impact statement has been prepared by Ms. Worcester named in the information in this matter. It is entered pursuant to s. 722 of the Criminal Code .

In accordance with s. 722(2.1) of the Code , I have also had the victim speak directly to the court and through the court to the accused in this matter. [ 8 ] The victim impact statement, which is not being challenged by the accused, indicates a horrific set of financial circumstances have been caused to the victim in this matter and to her immediate and extended family. The suggestion is that a successful hair dressing business has been looted by the accused in this matter. The matter is being pursued civilly in the Supreme Court of British Columbia.

The amount alleged to be the subject matter of that suit is somewhere in the range of $250,000. That matter is set for trial the week of February 17, 2014. I am mindful, though, what I have before me is an admission on the part of Ms. Lang that she did commit theft of money, but that theft to which she has admitted is of a value not in excess of $5,000.

It will be up to the victim in this matter as a claimant and the plaintiff in the civil proceedings to prove her case and to seek the remedies that are available in the civil proceedings, in order to attempt to recover from the financial devastation apparently caused by Ms. Lang in terms of theft from the victim in this matter. [ 9 ] In addition to the direct impact, there have been a series of collateral problems caused by the actions of the accused.

Although based on the information before me, I cannot draw a direct link, but there have certainly been significant problems caused with agencies such as Canada Revenue Agency and with a number of other third parties, with whom the victim has had to deal. I am told that some steps have been taken in order to deal civilly with problems caused by Ms. Lang in terms of the operation of credit cards and related matters by Ms.

Lang without the authorization of the victim in this case. [ 10 ] The victim impact statement also sets out clearly that there have been significant physical problems, such as high blood pressure, depression and posttraumatic stress disorder that have been caused to the victim and others by the actions of the accused in this matter. [ 11 ] However, I must again emphasize that the matter that is before me is a theft of a value not in excess of $5,000 to which the accused has admitted. [ 12 ] The accused in this case is 55 years of age. She has a Grade 12 education and received training at a secretarial college.

She lives with her common-law spouse, who is described to me as a landscape artist. They have been in a relationship since 1996. The accused has two adult children, age 38 and 36, and an adopted 15-year-old child. She says she does not presently work as volunteer within her community. The home at which she resides is owned by her common-law spouse. She started working for the victim in this matter back in 2003. As confirmed both by the accused as well as by the victim, she became an integral part of the victim's family. [ 13 ] The accused tells me she does not have any addiction issues.

When I asked her as to her motivation in the theft to which she has admitted, she described it as “selfishness”. I take that to be selfishness on her part. She also used the term of “not feeling good” about her actions. She is presently working as a server in a family restaurant; she has been so for about a year and a half.

She earns a base rate of $9 per hour plus gratuities, which she says, average between $50 and $60 per day, but on a good day, she can earn as much as $125 in gratuities. [ 14 ] As indicated to me earlier, up to the time that she has entered her plea on this charge, she does not have a criminal record.

[15] Crown's sentencing position in this matter has regard for all the circumstances and for the fact that she has entered a plea ofguilty to Count 1 and notwithstanding Crown’s indication of the potentially larger scope of the misappropriation from the victim; theentering of a plea of guilty allows Crown to dispose of a matter which otherwise could have been significantly difficult on the part of theCrown to prove.

Accordingly, Crown says a three year suspended sentence with specific terms, including a prohibition under s. 380.2 ofthe Criminal Code involving the ability of the accused to have employment in the capacity that involves having authority over realproperty, money or other valuable securities should be imposed. [16] Crown has suggested to me that in this matter that a restitution order is something that I should be cautious about imposing. The full extent of the misappropriation in this particular case is limited to the amount to which the plea has been entered.

It will bepotentially much greater once the civil proceedings of the victim in this matter have come to trial. Accordingly, Crown urges me toproceed with considerable caution in exercising my discretion concerning any request by the victim in this matter to obtain a restitutionorder. [17] The full extent of the tragedy of this case will play itself out before another court at another time. I acknowledge the significantharm that appears to have been done as a result of the actions of the accused. [18] However, I am guided by the Supreme Court of Canada's decision in R. v.

Zelensky, (SCC), [1978] 2 S.C.R. 940,which amongst other things does support Crown's position that an order for compensation and restitution should only be made withrestraint and with caution; in the circumstances of where there may be collateral civil proceedings, it may be best for the criminal courtdealing with charges to defer to the civil court in order for it to provide an appropriate remedy for the victim. [19] I can only say that, in my estimation, the motivation of Ms. Lang goes well beyond selfishness.

There are clearly somesignificant aggravating factors here: the breach of trust, the close relationship that she formed with the victim and the fact that she usedthat as an opportunity to steal from a friend and employer is reprehensible. However, I must also give due regard to the amount to whichshe has entered a plea of guilty and the fact that she apparently has no prior criminal record. [20] Taking into account all of the circumstances, with some reluctance I must say, I accept the Crown's sentencing position. [21] If you would stand, Ms.

Lang. [22] I am imposing upon you what is referred to as a suspended sentence. You have to understand that a breach of any of theconditions that are attached to a suspended sentence may itself give rise to further sanctions against you. So as I say to every personupon whom I am imposing court orders, you cannot treat them as something in the nature of an inconvenient suggestion. These arethings that you must do. Do you understand that? [23] THE ACCUSED: Yes, I do, Your Honour. [24] THE COURT: All right.

So with respect to the suspended sentence, the probation conditions which I will be attaching to thatwill first of all be to keep the peace and be of good behaviour and attend court when required to do so by the court. [25] I am going to require that you report to a sentence supervisor, and that you report here in Nanaimo in person by 4:00 p.m. todayand thereafter as directed. [26] You must notify the court or your sentence supervisor of your current residential address, and you are not to change that addresswithout the prior permission of your sentence supervisor. [27] I am also going to require that you provide the name of your employer and the contact particulars for your employer to yoursentence supervisor, and you are, within 48 hours, to inform your sentence supervisor of any change of employer or change of occupationand to provide updated particulars of your employer to your sentence supervisor. [28] I am going to impose the condition being sought by Crown under s. 380.2 of the Criminal Code during the duration of yoursuspended sentence, and directing that you are prohibited from seeking, obtaining or continuing any employment or becoming or being avolunteer in any capacity that involves having authority over the real property, money, or valuable security of any other person.

Theonly exception I am making to that is that you may continue to be involved in service related jobs or any other type of employment whereyou are not primarily responsible for the handling of rendering accounts or for dealing with cash. [29] In other words, you cannot be a cash operator of a till, but you can certainly provide a bill in the course of serving someone atyour present employment, all right?

So I am not prohibiting you from your present job as a server at ABC Restaurant, but any other jobsthat would entail a greater degree of responsibility with the handling of cash or money would be caught by the prohibition that I amimposing upon you. Do you understand that? [30] THE ACCUSED: Yes, I do, Your Honour. [31] THE COURT: All right. I am also imposing a condition, you are not to have any contact, directly or indirectly, with the victimin this matter, Virginia Lee Worcester, nor with any members of her immediate family, including her children Elijah and Brooklyn.

Theonly exception to that no contact order is that nothing in it will prohibit you from having contact arising from the civil proceedings whichare presently being conducted against you by the victim; I am going to add, or any further civil proceedings that may be instituted againstyou by the victim. [32] Is there any other condition, Mr. Barber, that you were seeking? I have not imposed a no alcohol or any -- I do not know if thatis an issue here or... [33] MR. BARBER: We have no evidence of that, Your Honour.

No evidence besides her claim of selfishness as to where themoney has gone, so I cannot really be of any help, I do not think, in reining in any type of behaviour, Your Honour.

[ 34 ] THE COURT: All right. With respect to the application brought by the victim in this matter for an order for restitution, based on the Zelensky case, I am going to decline that application, and I will leave it to the full proceedings of the Supreme Court of British Columbia in the civil matter in order to deal with the issue of restitution and recovery of any amounts that may be found to be due to the victim in this matter. [ 35 ] Notwithstanding the suspended sentence, this case also attracts a victim surcharge. I am going to impose that victim surcharge, and that amount must be paid within 30 days.

It is, in the grand scheme of things, a relatively small amount. [ 36 ] Mr. Barber, is there anything else? [ 37 ] MR. BARBER: I do not think DNA applies, so, no, nothing else, Your Honour. [ 38 ] THE COURT: All right. Those are the orders that I will make with respect to this matter. I can only hope on behalf of the victim that the implications of your actions in this matter will be a long time reminder to you of the extent of your selfishness. [ 39 ] That concludes my reasons for judgment with respect to this matter. Does Madam Clerk require anything? [ 40 ] THE CLERK: Count 2, Your Honour? [ 41 ] MR.

BARBER: Crown directs a stay of proceedings, Your Honour. [ 42 ] THE CLERK: Thank you. [ 43 ] THE COURT: Stay of proceedings recorded with respect to Count 2. [ 44 ] MR. BARBER: Thank you, Your Honour. [ 45 ] THE COURT: Thank you. (REASONS CONCLUDED)