R. v. Street Date:, 2016 BCPC 70

Citation: R. v. Street Date: 20160314 2016 BCPC 0070 File No: 79917-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID MARK STREET ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: B. McCormick (Agent for J. Kulla) Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C. Date of Hearing: March 14, 2016

Date of Judgment: March 14, 2016 INTRODUCTION: [ 1 ] THE COURT: David Mark Street has entered a plea of guilty to an offence that from the 15th of November, 2014, to the 26th day of March, 2015, that he did commit theft of money, the property of Woodlands Secondary School of a value not in excess of $5,000. Crown has proceeded by way of indictment and, therefore, pursuant to s. 334 (

b) of the Criminal Code , he is liable to a maximum penalty of up to 2 years in prison. [ 2 ] The amount subject of the theft is agreed by Crown and defence to be $2,320.00. [ 3 ] At the time of the offence Mr. Street was a high profile, well-known educator and the principal of Woodlands Secondary School in School District Number 68 (Nanaimo-Ladysmith). [ 4 ] Accordingly, this offence committed by Mr.

Street, while the principal of Woodlands Secondary School, and employed by the School District Number 68 (Nanaimo-Ladysmith) raises the aggravating circumstances set out in s. 718.2(a)(iii), because he is an offender who abused his position of trust in relation to his victim. [ 5 ] The issue before me is what is a fit and appropriate sentence for Mr.

Street. [ 6 ] Noting the need for deterrence in crimes of this nature, and given the aggravating circumstances, Crown says that a jail sentence is appropriate, but submits that imposition of a conditional sentence under s. 742.1 of the Criminal Code , such that he has the opportunity to serve his sentence in the community, rather than in a custodial institution, should be imposed upon Mr. Street. Crown submits that a nine month conditional sentence order should be imposed upon Mr.

Street with a number of restrictive conditions. [ 7 ] Defence submits that given all of the circumstances this is one of those unusual cases where the court should grant Mr. Street a conditional discharge pursuant to s. 730(1) of the Criminal Code . Defence says that as terms of a conditional discharge Mr.

Street should be placed on a probation order made under s. 731(2) of the Criminal Code that should have a duration of 18 months. [ 8 ] The terms conditional sentence order and conditional discharge may have similarities in name and may lead to some confusion among the general public, but the results are dramatically different. [ 9 ] As noted by Chief Justice Bauman, who serves as Chief Justice of both the Yukon Territory Court of Appeal and the British Columbia Court of Appeal, in the decision of R. v. Samson [2015] Y.J.

No 18 , 2015 YKCA 7 , at para 11 says: 11 A discharge is available when the sentencing judge considers it "to be in the interests of the accused and not contrary to the public interest" (s. 730(1)). A discharge is somewhere between a conviction and an acquittal in the sense that a person who has been granted a discharge has no criminal record and has not been convicted of a criminal offence, but has been found guilty of a criminal offence ( Clayton Ruby , Sentencing, 8th ed . (Markham, ON: LexisNexis, 2008) at 414). [ 10 ] Thus, the consequences of a conditional sentence order for Mr.

Street is that he will have a criminal conviction, and hence a criminal record, while if he is granted a conditional discharge he will not have a criminal record. [ 11 ] The court heard lengthy and detailed submissions in this matter from Crown on December 14th, 2015, and then from defence for the balance of that day. Defence submissions were subject to a continuation and were completed late in the day on January 7th, 2016. Today's date was scheduled for the rendering of the court's reserved decision. BACKGROUND CIRCUMSTANCES AND FACTS: [ 12 ] Pursuant to s. 606(1) of the Criminal Code , Mr.

Street entered a plea of guilty to this offence. By virtue of s. 606(1.1)(b)(

i) his voluntary guilty plea is an admission of the essential elements of the offence. That said, the circumstances surrounding the offence are vitally important and by way of submissions have been presented to the court by both Crown counsel and by defence. There is little in the way of dispute about the facts and circumstances, which I have outlined below. BACKGROUND CIRCUMSTANCES AND FACTS SURROUNDING THE OFFENCE: [ 13 ] At the time of the offence, Mr. Street had been a long serving administrator with School District Number 68.

He had completed a very successful assignment as principal of Ladysmith Secondary School in Ladysmith, British Columbia. Much to the significant disappointment of the Ladysmith community and Mr. Street's own disappointment, he was reassigned to Woodlands Secondary School, as principal, effective for the school year commencing in the fall of 2014. Community protests in Ladysmith opposing the move included both students and parents and marked Mr. Street's departure and reassignment. [ 14 ] Mr.

Street had three new administrative staff at Woodlands Secondary School reporting directly to him and under his supervision. The school administrative office staff consisted of Eadie Whitford, Heather Cooper and Tara Hill. [ 15 ] As part of their administrative duties, these three experienced administrative staff members were responsible for handling sums of money, which came from grad student fees, student sports fees, field trip fees, fundraising receipts, and community donations. [ 16 ] Ms. Whitford was the primary handler of these funds along with the petty cash fund. Prior to Mr.

Street's arrival, all of the funds had been maintained in a cash box, which was kept in a locked filing cabinet. [ 17 ] At Mr. Street's direction a locking safe was installed in the school's administrative area in order to better protect and secure

these funds. That occurred between November and December 2014. [ 18 ] The new locking safe could be accessed by one of two keys or through a touchpad system. Ms. Hill and Ms. Whitford were the two of the administrative staff that had access to the safe. Mr. Street told the administrative staff that he did not want access to nor be able to open the safe. He specifically indicated that he did not want a key to the safe. [ 19 ] On January 9th, 2015, and again on January 15, 2015, Ms. Whitford discovered that funds collected for both the boys and the girls basketball programs were missing from the safe.

She informed Mr. Street. Mr. Street instructed her to keep quiet about the missing funds. Ultimately Mr. Street reported the missing funds to the senior School District administration and to the RCMP school liaison officer. [ 20 ] This resulted in Mr. Street meeting with the School District's Assistant Superintendent and with Constable Wedholm, whom I understand to be the RCMP school liaison officer. In response to questioning by the police, Mr. Street indicated that Ms. Whitford, Ms. Cooper, and Ms. Hill were the only persons with access to the locked safe. Thus, these three individuals became suspects.

All three were interviewed by the police. Mr. Street stood by quietly while suspicion was diverted to his three subordinates. [ 21 ] They, of course, were all extremely distressed about the missing funds and especially about being considered suspects in the apparent theft of the funds. [ 22 ] Between February 6th and February 20th, 2015, further monies were discovered to be missing from grad fee deposits, cash donations received for school activities, and monies from the students' beach volleyball fund. [ 23 ] Following police questioning, Ms. Whitford and Ms.

Cooper obtained a motion sensor camera (sometimes referred to as "nanny camera") which they hid and installed on Ms. Whitford's desk in the school's office sometime after February 20th, 2015, and prior to February 25, 2015. [ 24 ] Between February 26th and March 6th, 2015, the amount of $490 was detected to be missing from the petty cash box, which I understand was maintained in the bottom drawer of a locked file cabinet and not in the locking safe.

A significant portion of these funds came from a school fundraiser. [ 25 ] The motion sensor camera recorded some very disturbing images between February 25th and March 11th, 2015, whereby on seven occasions Mr. Street was seen accessing both the locked safe and the petty cash box with the use of keys that purportedly he did not have in his possession, and certainly contrary to his expressed wishes made known to the three administrative staff who had now become the suspects in the thefts. [ 26 ] Ms. Whitford and Ms. Hill contacted the police on March 25th, 2015.

They attended at the school to conduct an investigation. Ms. Whitford was asked to open the locked safe. At that point it was realized that there was an operative key for the safe missing from her possession and she only had an old key. She was able to access the locked safe by means of the combination pad. She was requested by the investigating officer to complete an audit of the accounts. The police seized certain items including the motion sensor camera and the footage recorded by it. [ 27 ] On March 26th, 2015, Mr.

Street was summoned to the School District administrative offices at which time he was informed by his superiors that he was being suspended for suspected thefts of money. [ 28 ] As he departed from the administrative offices, the RCMP attended and arrested him in the parking lot. He was taken to the Nanaimo RCMP detachment where he was interviewed and shown the tape footage taken from the motion sensor camera. He admitted to the police that it was him in the footage and admitted he was not supposed to have any of the keys.

He asked the police officers if they had the safe key and offered to turn it over to them. [ 29 ] Crown says there was no outright admission of the thefts to the RCMP on his part at that time. [ 30 ] However, there is no issue that Mr. Street apologized to the school liaison officer, Constable Wedholm, during the course of the police interview, and used words to the effect, "I will take responsibility. I will move on. I do not know what that looks like. I do not know if I am safe. I am accepting where we are right now". [ 31 ] Mr. Street was very upset and overwhelmed during the police interview.

He was released on a promise to appear. Given his level of emotional distraught, the police were concerned about his emotional well-being and that he was suicidal. Therefore, they took him to the Nanaimo Regional General Hospital to be assessed by a psychiatrist. He was subsequently discharged into the care of his domestic partner without any incident. [ 32 ] As a result of the police investigation it was determined and admitted by defence that Mr.

Street had on several occasions accessed the locked safe and stole the amount of $2,320, including the amount of $490 from the petty cash box, such funds having been collected from the various student fees, donations, and fundraising activities. [ 33 ] Mr. Street was charged on May 22nd, 2015. Mr. Street resigned his employment and his position with School District 68 on that same date. [ 34 ] I understand that Mr.

Street still holds his teacher's certification with the British Columbia Teacher Regulation Branch of the Ministry of Education and to date there has been no discipline process or a hearing conducted by the British Columbia Director of Teacher Regulation with respect to Mr. Street. I am further given to understand that they may be awaiting the outcome of this sentencing to determine what processes, if any, will follow. [ 35 ] There is no disagreement between Crown and Defence that since being charged on the 22nd of May, 2015, with this offence, that it has been the full intention of Mr.

Street to enter a plea of guilty. Furthermore, there is no issue that he has placed into defence

counsel's trust account sufficient monies in order to make full restitution of the agreed amount that he stole. Distribution of those restitution amounts will occur following sentencing. [ 36 ] At the outset of the case for the defence before the court, Mr. Street read into the court record a detailed two page letter of apology that he directed at the "students, parents, office, teaching and administrative staff of Woodlands Secondary, [his] administrative colleagues, school trustees, School District 68 senior administrative staff, [his] family and friends.

He made particular mention of the fact that by his "deceit forced several veteran Woodlands employees to (unjustifiably) question their own professionalism and competence". [ 37 ] I take that to be a specific reference to the three administrative staff, Ms. Whitford, Ms. Cooper, and Ms. Hill, although they are not specifically named in the apology. CIRCUMSTANCES OF THE OFFENDER DAVID STREET: [ 38 ] I have a significant amount of information concerning the personal background, career, and present circumstances of Mr.

Street both from the oral submissions of defence counsel, as well as from a series of 10 documents which outline the treatment and programs undertaken by Mr. Street since the offence and from 50 letters of support and character references for him submitted as part of the defence case. [ 39 ] At the date of the sentencing hearing, Mr. Street was 55 years of age having been born, grown up and received his elementary and his secondary school education on Vancouver Island.

He was his high school graduating class's president and he was the school valedictorian in his graduating year. [ 40 ] I understand that he grew up in a stable family background, during which time his family was active in their church and faith community. His father was a lay preacher. Mr.

Street was active in the church youth group, was a Sunday school teacher, and contributed as a camp counsellor. [ 41 ] In 1983 he graduated with a Bachelor of Arts in philosophy with a focus on adolescent psychology from Trinity Western University. [ 42 ] From his teenage years starting in high school and through university he was consistently gainfully employed on a part-time and seasonal basis and worked in a wide variety of jobs ranging from camp counsellor, a shift boss in a fast food restaurant chain, at different parks and recreation organizations, as a landscaper, and in a lumber producer's mill. [ 43 ] Following his graduation from university he had six months of travel to the U.S.A. with a friend.

He then returned to the Fraser Valley where he became a youth director with a church starting in February 1984. In 1985 he commenced a nine year career with the federal government during which time he worked as an employment counsellor, immigration settlement service counsellor, and as a labour market analyst. [ 44 ] During his time with the federal government, he returned to Simon Fraser University in order to obtain a Bachelor of Education in 1994.

Upon completing his education degree he obtained employment with School District Number 79 (Cowichan Valley) as a career development counsellor and secondary school teacher. [ 45 ] In 1998 he was hired to the position of a school vice-principal with School District Number 68 (Nanaimo-Ladysmith) and fulfilled those roles at both Dover Bay and Ladysmith Secondary Schools. [ 46 ] In the year 2000 he obtained his Masters of Education in educational leadership from San Diego State University.

In 2003 he became the School District Number 68 District Principal at the career and technical centre which position he held for a period of four years. [ 47 ] In 2007 he was made vice-principal of Wellington Secondary School. In 2009 he became the principal of Ladysmith Secondary School. [ 48 ] He held that position at Ladysmith Secondary School until he was assigned to become principal at Woodlands Secondary School, which position he held until his suspension and ultimate resignation in May of 2015. [ 49 ] Subsequent to his resignation and starting around the fall of 2015, Mr.

Street was able to secure a job working in the shipping department of what is referred to as the mailroom of a chain of local newspapers. While he is succeeding at this job, his responsibilities as a driver and labourer are much less demanding than the very responsible positions that he held throughout his career in the federal government and in education. [ 50 ] It was during his tenure as principal of Ladysmith Secondary School that he gained a huge amount of public attention and profile as a principal, creative educator and keen contributor to the local community and the families within that community.

More will be said about that later on in these reasons when dealing with Mr. Street's personal circumstances. [ 51 ] Mr. Street has two adult children from his first marriage, and two younger children from his second marriage. [ 52 ] He and his present domestic partner are apparently in a stable relationship and share their respective parenting time during the same weeks with their respective children on a week on week off basis; on the week off they live together without any children. [ 53 ] Mr.

Street's physical health is described as "generally good" notwithstanding that he has undergone some procedures for heart issues. [ 54 ] However, he has suffered bouts of depression, secondary to marital difficulties, which started in the 1990s.

[ 55 ] According to his long-time family physician, in the fall of 1999 he was using alcohol for self-medication purposes. He was placed on various anti-depressant medications and referred to a consulting psychiatrist through Duncan Mental Health. He has been on the same anti-depressant medication since the year 2000. [ 56 ] His issues with depression, alcohol use, and also issues with significant stress continued as his career progressed, apparently playing out "behind closed doors" to use the words of his legal counsel.

Accordingly, these issues were generally not apparent to his friends, colleagues, staff, students, and the community that he served in a professional capacity. [ 57 ] According to the medical letter report dated September 1st, 2015, from his long-time family physician, who saw him on March 30th, 2015, shortly after he had been arrested for the offence, Mr. Street admitted that he had been self-medicating with alcohol on a regular basis and had become quite dependent upon it. At that time, according to his physician, Mr.

Street was dealing with "enormous stress brought about by his arrest", which "caused a significant psychological upheaval". The family physician confirmed that after March 2015 Mr. Street was attending weekly supportive psychotherapy, abstaining from alcohol, and receiving treatment for it and remained engaged in treatment for his alcohol dependence. He was also seeking the services of a counsellor and was attending sessions regularly. [ 58 ] In the family physician's medical letter report the following comment is made: Over the past several visits, Mr.

Street's mental state appears to be significantly more settled. He appears to be engaged in all levels of treatment that are available to him. He admits that this has been a time of intense self-reflection and he appears anxious to move on to a new phase of his life. [ 59 ] It is very apparent that Mr. Street has undertaken a personal recovery process since his offending behaviour became known and he was arrested.

That has proceeded with the same zeal, vigour, and enthusiasm that he demonstrated during his career as an educator and school administrator. [ 60 ] Based on a series of letters from Duncan, British Columbia, offices of Mental Health and Substance Use, Adult Substance Use Services, and from his personal counsellor, and from his personal addictions counsellor, Mr.

Street has undertaken 108 hours of group counselling; 28 hours of one-on-one counselling; has attended weekly Alcoholics Anonymous meeting sessions totalling some 35 hours; 17 hours of employment assistance counselling; and seven hours with a certified addictions counsellor. In addition, he has successfully completed a 30 hour distance training program, including a formal examination for which he attained high marks, and which will permit him to act as a facilitator and volunteer for the SMART Recovery Program.

This program is apparently focused on promoting the idea of self-empowerment, self-management and encouraging participants to take full responsibility for their recovery. [ 61 ] Thus, Mr. Street has already completed something in the neighborhood of some 220 hours of recovery treatment programs, and has been fully engaged and achieved great success and continues to have that success. [ 62 ] According to Mr. Churchill's submissions, which are in no way disputed by Crown Counsel Kulla, Mr.

Street has met with Betty Zimmerman, M.A., a mental health and substance use clinician at Vancouver Island Health's Mental Health and Substance Use, Adult Substance Use Services to assist, on a voluntary basis, in establishing an apparently much needed and much welcomed SMART Recovery Program in the Cowichan Valley. [ 63 ] Mr. Churchill informs the court that this commitment by Mr. Street will be proceeding notwithstanding the outcome of Mr. Street's sentencing in this matter. [ 64 ] Significant delivery of volunteer work, and commitments to his community has been a defining feature of Mr.

Street's life, and it is his stated wish to give back to the community notwithstanding his own personal crisis and his personal recovery program. [ 65 ] Mr. Street has also applied and been approved by Simon Fraser University Continuing Studies to Obtain a Certificate in Restorative Justice (Online) commencing in January 2016.

The course outline indicates that he will be taking three courses including an Introductory Course to Restorative Justice Concepts, Theory and Philosophy, and two electives in restorative justice process models and its application in the community and in school settings. [ 66 ] I am told that Mr.

Street wishes to pursue a future career working in the non-profit sector with youth and other individuals who are in vulnerable circumstances and also in the field of restorative justice. [ 67 ] As previously noted, a binder containing 50 letters of recommendation and character references have been submitted on behalf of Mr. Street. I have carefully read and reviewed each of these letters. [ 68 ] They have been written by a broad range of individuals, who apparently have known Mr. Street for significant periods of time, and in a multitude of different circumstances.

They are all aware of his present difficulties and the charges that have been laid against him. [ 69 ] The individuals that have provided these letters include former students, parents of former students, Parents' Advisory Committee leaders, teachers, former school trustees, fellow vice-principals and principals, staff members at Ladysmith Secondary School, neighbours, child support workers, school and community counsellors, community leaders, and community business people. [ 70 ] There are some distinct common themes that run through these letters. [ 71 ] Collectively, these letters paint a picture of Mr.

Street as a passionate, motivational, charismatic, and creative school administrator, educator and leader. He is recognized as being gifted, dedicated, caring, kind, concerned, energetic, hard-working, thoughtful, and committed. [ 72 ] Former students speak of him as greatly respected and as a kind and empathetic person, who provided them with positive

mentoring, sometimes impacting and influencing their lives in a father figure role and often making life-changing differences for themwhile they were struggling in school. His support of them allowed them to continue with and graduate from high school and to go on tosucceed in life. Some indicate that but for Mr. Street they would have pursued a very negative path, which would have likely resulted inthem being jailed or resulted in their early untimely deaths.

Others describe him as being one of the most inspirational persons in theirlives. [73] Many parents of former students also speak of him in these same terms, expressing their thanks and appreciation for all he didfor their children and their families during some challenging times, enabling them to bridge those difficulties, and to allow their childrento gain self-confidence and self-respect.

He is recognized for creating a safe and protective environment for all of the students in theschool, and in particular for the children of these parents, and for encouraging the best from each student, no matter what their abilities. [74] Former teachers at Ladysmith Secondary School, and at other schools, who knew Mr. Street as their administrator speak of"working with him, not for him", recognize him for his excellence in promoting a culture where teachers and students worked together,and where high expectations in both behaviour and academics were fostered and achieved.

They also speak in glowing terms about hiswelcoming, caring, and compassionate nature with students and staff, his wonderful mentorship and great leadership and the highlypositive examples he set by his own behaviour, his boundless energy, and his exceptional hard work. [75] Community members, including community leaders and business people, praise him for this tremendous contributions tohelping out within the community and for passionately promoting it and building comradery within both the school and within thecommunity; for his great support for a large and diverse number of charitable causes; and his personal efforts in charitable fundraising;and for making Ladysmith Secondary School a vital and important part of the community; and for promoting community partnerships. [76] School counsellors, aboriginal counsellors, and community counsellors and support persons, describe him as having a passionfor creating a safe and stable learning environment within the school, and to creatively using an open mind and extending latitude andtrust and understanding towards students requiring such an approach.

He was recognized by some as having an ability to connect withstudents who no other teacher or counsellor could connect. [77] Former colleagues of Mr.

Street who held similar positions as school administrators, as well as former senior districtadministrators and former members of the School Board for School District No. 68, praise him for his wise counsel, his support forthem, his dedication to improving the success of First Nations, his great professional skills, his ability to take time to continuallyrecognize all of the outstanding things his staff were doing for the students, and his dedication and his hard work, as well as his greatgifts as a public speaker and communicator. [78] The theme of Mr.

Street's reputation for his honesty and his integrity is also very apparent. Many writers are in complete shockand disbelief at Mr. Street's criminal conduct, and indicate that it is entirely out of character from the person that they have known,admired and respected, and continue to do so notwithstanding this serious lapse. THE PURPOSE PRINCIPLES AND OBJECTIVES OF SENTENCING GENERALLY: [79] Sentencing is an individualized process, which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v.

Shoker, 2006 SCC 44 at paragraph 14, and R. v. Angelillo, 2006 SCC 55 atparagraph 22). [80] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code, butalso be mindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R.v. McCormick, 2006 ABCA 410 at paragraphs 9 to 12). [81] In R. v. Nanji, 2009 BCPC 79 , [2009] B.C.J. No 521; 2009 BCPC 79 , the Honourable Judge Woods of ourProvincial Court provides a useful

summary to deal with the purpose and principles of sentencing set out in the Criminal Code bydrawing from the decision of our British Columbia Supreme Court in R. v. Pommer (infra). [82] Quoting Judge Wood from para 12 in the Nanji decision he says: 12 In R. v. Pommer, 2008 BCSC 737, D. Smith J. (as she then was) recently provided a strikingly succinct, complete and "to thepoint" generic

summary of the relevant purposes, principles and objectives of sentencing with which I find myself in respectfulagreement. I reproduce that

summary below, believing it to be fully applicable to the case at bar: "The 'normative' principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Criminal Code (see. R. v. L.M., 2008 SCC 31).

Thefundamental purpose of [the sentence] is to contribute, along with crime prevention initiatives, to respect for the law and the maintenanceof a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the CriminalCode: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders fromsociety, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and topromote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigatingcircumstances relating to the offence or the offender, evidence that the offender in committing the offence abused the offender's spouseor a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should beconsidered.

In this case, the conditional sentencing regime as set out in s. 742.1 may be available if the court is satisfied an appropriate sentence ofimprisonment would be less than two years, that serving 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 as set out in

section 718 to 718.2 of the CriminalCode." (At paras. 42-44) CONDITIONAL SENTENCES: [83] The principles which underlie conditional sentences are set out in s. 742 - 742.7 of the Criminal Code. R. v. Proulx, [2001] 1S.C.R. 61 sets out the proper approach to the application of these principles (see para 127). [84] Some of those principles that are particularly relevant to this case are as follows: (

a) A conditional sentence is intended to address both punitive and rehabilitative sentencing objectives and should generally includepunitive conditions that restrict the offender's liberty. (b) "Safety of the community" not being endangered is merely one of the statutory prerequisites for imposing a conditional sentence andis not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the risk ofthe offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can beattached to the sentence to thereby reduce any risk to an acceptable level. (

c) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied, and there is no presumption thatconditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances. (

d) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites aresatisfied but there is no presumption in favour of a conditional sentence. (

e) A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and theterms of the sentence is longer than would have been imposed as a jail sentence. (

f) A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary ofplacing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may becircumstances where deterrence will warrant incarceration. (

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction subject to considerations of denunciation and deterrence. (

h) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence,conditional sentences may be imposed even if such factors are present. CONDITIONAL DISCHARGES: [85] The position that is put forward by defence counsel is that this matter is appropriate for a conditional discharge, and reliance istherefore placed on R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559. [86] Fallofield is the leading authority with respect to granting of conditional discharges.

The test that is outlined in Fallofield is thatthe granting of a discharge must, first of all, be in the best interests of the accused, and the second leg of the test is that it must not becontrary to the public interest. [87] Fallofield draws the following conclusions with respect to the application of s. 730 for discharges. They are listed as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by (what is now s. 730) should not be exercised as an alternative to probation or suspended sentence. (8) Section (730) should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in thecircumstances of cases.

POSITIONS OF CROWN AND DEFENCE ON SENTENCING: [88] Both Crown and defence have presented the court with thoughtful and comprehensive submissions on sentencing. [89] A number of aggravating and mitigating circumstances have been presented. There is not much in the way of significantdisagreement over those circumstances. However, both sides place different emphasis on each of the circumstances that are beingraised. I will deal with the aggravating and mitigating circumstances in my analysis. [90] Significant reliance is placed by Crown upon one aggravating circumstance of particular note.

It bears particular comment,because of the significant impact that has been suffered by each of Eadie Whitford, Heather Cooper, and Tara Hill. [91] The aggravating circumstance that Crown highlights is that Mr. Street stood silent while suspicion was being diverted to threecompletely innocent subordinates under his supervision and which caused them to be subject to a police investigation over a significantperiod of time.

That police investigation, and the general suspicion that arose and cast a shadow over these three innocent individuals,has caused significant negative impact on them. [92] In each of their thoughtfully worded victim impact statements these three individuals pointed to the significant harm caused tothem as a result of Mr. Street's criminal conduct and his behaviour which allowed suspicion to fall upon them. [93] Each of these three innocent individuals feels greatly deceived and victimized by somebody who they, and others in the schoolcommunity, held in high regard.

They all feel hugely betrayed by his actions. [94] They all have suffered significant emotional trauma in varying degrees and have been required to continue to deal withsignificant issues arising from this incident. This has included varying degrees of significant anxiety, depression, physical ailments, lossof confidence in their abilities, stresses in their home and personal lives, the necessity to obtain prescription medications, physiotherapyand massage therapy, loss of time at work, and absences from jobs that were important and fulfilling to them.

CROWN'S POSITION AND SUBMISSIONS ON SENTENCING: [95] Based on a number of the aggravating circumstances and in particular the Crown's view as to the existence of very substantialand noteworthy aspects of the breach of trust, namely the theft from his employer while in an important position of trust and while in aposition of substantial power over students and staff, as well as his attempt to cast suspicion on his three subordinates in order to coverhis own wrongdoing, that a conditional sentence order, as outlined above, is the appropriate sentence.

Tempering these aggravatingfactors are some positive mitigating factors, which buttress Crown's sentencing positon and which I understand they say eliminates theneed for actual incarceration. [96] Crown opposes the granting of a conditional discharge as being contrary to the public interest.

In particular, Crown submits thatdenunciation and deterrence should in these circumstances be the primary consideration of the sentence. [97] In so stating, I understand Crown to be saying that when the appropriate mitigating circumstances are taken into account,specific deterrence is not as important in this case, but that general deterrence is important. Also denunciation is very important in orderto register the disappointment and shock of the community towards Mr. Street's offending behaviour.

CASE AUTHORITIES RELIED UPON BY CROWN: [98] Crown has referred the court to and relies upon the following case authorities:

(1) R. v. Kratky, (BCSC);

(2) R. v. Inglis, 2002 BCPC 242;

(3) R. v. Hodson, 2004 BCPC 594;

(4) R. v. Mumby, 2006 ABCA 103;

(5) R. v. Chang, 2006 BCPC 2010;

(6) R. v. Burkart, 2006 BCCA 446;

(7) R. v. Nanji (supra);

(8) R. v. Lang, 2013 BCPC 278. [99] I have carefully read and reviewed and analyzed all of these cases in reaching my decision. I do not intend to make specificreference to many of these cases. [100] For the most part these cases deal with individuals who have been in varying positions of trust and who have stolen amounts inexcess of $5,000 from their employers. The amounts stolen range from a high of $400,000 in R. v. Kratky, by a bookkeeper-managerfrom three dental practices, which resulted in an 18 month conditional sentence; then to R. v.

Cheng, a retail manager who stole just over$10,000 and who was sentenced to a nine month conditional sentence order and a one year period of probation; R. v. Lang was a guiltyplea to a theft under $5000, where the actual amount was not actually known and was difficult for Crown to prove, and the amount wassubject of a civil action by the victim against the accused. Accordingly, the three year suspended sentence in Lang is not of particularrelevance to this case before the court. [101] All of the relevant cases demonstrate the necessity of deterrence and denunciation being emphasized in the sentence imposed

upon each of the offenders. DEFENCE POSITION AND SUBMISSIONS ON SENTENCING: [ 102 ] Defence seeks a conditional discharge for Mr. Street again placing a different emphasis on some of the aggravating and mitigating circumstances. [ 103 ] Defence characterizes this situation as Mr. Street bringing upon himself "an enormous fall from grace." [ 104 ] In response to the court's direct question to defence counsel, Mr. Churchill plainly indicated that there is no coherent or clear explanation as to why Mr. Street committed this offence. [ 105 ] The circumstances point out that when he committed the theft, Mr.

Street was suffering from significant problems with depression and alcoholism and was suffering from significant stress. The funds that he stole did not go to any identifiable purpose. For example, he did not have a gambling addiction or an illicit drug addiction. His actions have resulted in the loss of a job that he loved, at which he excelled, and which paid him a substantial amount of money in excess of $100,000 per annum. [ 106 ] Mr. Churchill acknowledges, on behalf of Mr.

Street, that the actions of permitting his three subordinates to have suspicion cast upon them and become the subject matter of the police investigation is highly aggravating. [ 107 ] In defence submissions, without offering an excuse, it is stated that Mr. Street "lost control of the situation once the police investigation began." The only way that he could have diverted or stopped the investigation was to admit his offences to the police and to take personal responsibility. However, since he was facing his emotional and alcohol issues he was unable to make that clear admission.

It would have cost him everything, had he made that clear admission at that time. He very much regrets that he did not make that clear admission. As it turns out it has cost him everything of importance to him. [ 108 ] What I am asked by defence to look at, and to place significant emphasis upon, in my deliberations and in the sentence that I impose upon Mr.

Street, is the unconditional remorse that has been expressed fully and publicly by him in the form of his apology read into the court record, and by his very positive and comprehensive personal steps, and the real action that he has taken to deal with his depression and alcoholic issues.

Furthermore, I am being asked to consider his genuine remorse and his self-rehabilitation in the form of the real steps that he has taken to atone to the community, which he acknowledges he has significantly betrayed; that atonement is reflected by his new volunteerism and the goal to establish the SMART Recovery Program to help others. [ 109 ] In addition, Mr.

Street comes before the court with no criminal record predating this offence and with a stellar professional, personal, and community service record. [ 110 ] He is furthermore an individual who wishes to be able to continue to give back to the community and to assist troubled youth by his future participation in a helping vocation.

A criminal record may very well impair a clearly gifted individual from completing that goal in the non-profit sector and possibly from maintaining his teacher's certification. [ 111 ] Thus, it is submitted that the requirements for a conditional discharge exist in this case and in all of the circumstances, including a number of exceptional circumstances, Mr. Street should be granted that conditional discharge. CASE AUTHORITIES RELIED UPON BY THE DEFENCE: [ 112 ] Defence has referred the court to, and relies upon, the following case authorities:

(1) R. v. Samson (supra);

(2) R. v. Carnelley , 2008 BCSC 1882 ;

(3) R. v. Mand, [1993] B.C.J. No. 2637 ;

(4) R. v. Pepper , 2005 ABPC 294 ;

(5) R. v. Eves , 2002 BCPC 449 ;

(6) R. v. Speight , [1988] B.C.J. No. 1081 ;

(7) R. v. Brigg , [1993] B.C.J. No. 364 ;

(8) R. v. Chand , 2003 BCPC 289 . [ 113 ] Again, I have carefully read and reviewed and analyzed these case authorities in reaching my decision. I do not intend to make extensive and specific reference to many of them. [ 114 ] These cases have a number of common themes. Conditional discharges were granted to individuals where specific deterrence was not essential and notwithstanding that there were elements of breaches of trust by way of thefts from employers.

In these cases the accused individuals were held by the courts as meeting the requirements for a conditional discharge including consideration of the following factors: they were apparently of previous good character insofar as they had no previous criminal record, that early pleas of guilty were forthcoming, genuine remorse was demonstrated, restitution was made or was forthcoming, the offending conduct was out character, some of the offenders were struggling with depression or addiction issues at the time of committing the offences, and a criminal conviction arising from the offending conduct would have significant negative impact for future plans and endeavours of the accused individuals and may be disproportionate to the offence.

[ 115 ] Of all of the decisions that have been referred to me I find that the Court of Appeal decision in R. v. Samson ( supra ) to be the most useful. In that case the court decided that a conditional discharge and one year's probation for Ms. Samson was not a "substantial and marked departure" from the established range of sentences in a situation where breach of trust was an aggravating circumstance (see paragraphs 10 and 29). Crown had sought a conditional sentence order or incarceration in a jail facility and opposed a conditional discharge. [ 116 ] Ms.

Samson, a First Nation's woman, without a criminal record, was convicted of a theft over $5,000, having stolen $8,380.78 from her employer who operated a non-profit ambulance service in a remote community. She committed the offence while in the midst of personal crises with depression and was self-medicating with illicit drugs.

She was cooperative with the police investigation, was very remorseful, considered a very low risk to re-offend, she entered an early guilty plea, made financial restitution, took positive steps to deal with her addiction and her rehabilitation and with her future career. [ 117 ] The trial judge indicated that he was mindful of the need for denunciation and general deterrence, noting that a jail sentence even for a first time offender is “not at all, unusual, in fact, more the norm” even for a first time offender (see para 10) but had properly concluded that Ms.

Samson "wears her offence every day before her community" (see para 14). Ms. Sampson had plans to run for her First Nation's Council and the possibility of a conviction would have a significant adverse consequence for that endeavour and that it was a sufficiently real consequence to be a valid consideration in considering a discharge. ANALYSIS: AGGRAVATING FACTORS: [ 118 ] I accept the following as aggravating circumstances in this case: 1. The offences were planned and apparently deliberate and were ongoing involving Mr. Street acquiring a key to the safe and apparently also to the petty cash box.

He conducted the offences over a period of time when he would have had time to reflect on his conduct. 2. There is a twofold serious breach of trust. First, Mr. Street stole from his employer while in a very senior position, and when he was responsible for all of the students, teachers, and support staff under his charge to set an example of high standards of responsibility, accountability, and good citizenship. Second, as noted extensively above, he betrayed his three administrative staff by allowing the blame and suspicion to be cast upon them with significant resulting personal harm. 3.

I am also mindful that the amount stolen is not in comparative terms substantial and that the amount will be recovered, but I find the very nature of the monies and the purposes for which it was collected to be a significantly aggravating circumstance. This amounts to stealing from the church poor box. MITIGATING FACTORS: [ 119 ] I accept the following as mitigating circumstances in this case: 1. Mr. Street was cooperative with the police investigation upon being detected, and following the charges he always intended to resolve matters with a guilty plea. He has taken responsibility for his conduct. 2.

He has what Crown properly concedes is "quite an impressive body of support from a broad range of individuals" whose lives he has impacted positively and also from community sources in all walks of life. It is noted by Crown that one does not often see such an investment of support for an individual appearing before the criminal courts. Mr. Churchill notes in his submissions that in his 20 plus years of legal practice he has never been able to present the court with such an array of supportive letters. Given what I have read in these letters, it is not surprising that Mr. Churchill can make this submission. 3.

I accept that Mr. Street is truly and genuinely remorseful for his offending conduct. 4. I believe him to be a very low risk to re-offend. 5. His post offence rehabilitation and his conduct is both genuine and in my view exemplary and should be taken into account as a mitigating factor (see Clayton Ruby, Sentencing , 8th ed. (supra) at page 244). 6. I also accept that the exceptional level of support from his family and the community is a mitigating circumstance. 7. I note that he has, from the outset, wanted to make financial restitution and has taken appropriate steps to do so.

ANALYSIS WITH RESPECT TO THE SENTENCE: [ 120 ] I have concluded that given Mr. Street's high level of profile in the community and the apparent significant level of publicity that his offending behaviour has attracted, like Ms. Sampson, Mr. Street wears his offence every day before his community. [ 121 ] I have concluded that very strong elements of general and specific deterrence already exist for Mr. Street.

He will need to continue to take very positive steps to earn back the lost trust that has occurred, in varying degrees, among a very broad constituency for whom he was an important role model. [ 122 ] I have considered the following factors in relation to the denunciation of Mr. Street's conduct: 1. He has had a very public and widely reported significant fall from grace, which has had serious and harmful effects for both him and for his family. Because of his past accomplishments, his fall has been higher and harder than most people in similar circumstances.

Arguably, it is not unlike the fall of a hero in a Greek tragedy.

2. He has lost a job and a position in which he excelled, in a profession that was very much tied to his own persona and to his identity for a major part of his working life and during which he was widely exalted. 3. He has lost significant reputation and many aspects of that reputation have been destroyed or will remain under suspicion for years to come. Substantially, all of his professional and personal achievements predating his offending behavior will now understandably be examined by a large part of the local, school, and educational communities through a lens of scepticism and suspicion. 4.

He has suffered significant financial loss as a result of his offending behaviour. 5. The reasons for his sentencing will be available publicly online on CanLII being an open judicial judgment database. This will serve as a stark reminder to all, including Mr. Street, regarding his transgressions for years to come. [ 123 ] Therefore, I am of the view there is already substantial denunciation for Mr.

Street equivalent in many senses to what can be achieved by a conditional sentence order. [ 124 ] I am still very much troubled by the significant harm that his actions have caused, and apparently continue to cause, Ms. Whitford, Ms. Cooper, and Ms. Hill. [ 125 ] However, that is one of many factors I must consider and balance against other important factors in determining whether a conditional sentence is required or a conditional discharge should be made available to Mr.

Street. [ 126 ] I have concluded that having regard to his background, his professional certification, and his future plans both remuneratively and in the voluntary sphere, it certainly is in the best interests of Mr. Street to receive a conditional discharge. [ 127 ] I must now consider whether it is not contrary to the public interest to grant Mr. Street a conditional discharge. The factors that a fair-minded person would consider (in a similar fashion to the approved analysis in R. v. Samson ) include the following: 1. Mr.

Street has no prior criminal history and all the circumstances indicate that he appears to be of previous good character. 2. He has pled guilty and accepted responsibility for this offence. 3. This offence required some planning and organized deception that took place over a period of time during which Mr. Street was suffering from depression and alcoholism and under significant personal and professional stress. 4. He has taken significant and exemplary steps to address his depression and alcoholism, including training himself to establish a community-based rehabilitative program to assist others. 5.

His employer, as a victim, has not been significantly caused financial hardship or deprivation and restitution will be made. Ms. Whitford, Ms. Cooper, and Ms. Hill have been caused significant personal and emotional and physical hardship. 6. Mr. Street wishes to engage in restorative justice programs with these victims and others impacted by his behavior, if they individually choose to participate. 7. Mr. Street has remained an active, innovative and contributing member to his community. 8.

He has experienced considerable shame and humiliation for his actions in a number of different types of communities in which he is well known. 9. It is likely that Mr. Street will be judged by many in the future, not because of what he accomplished prior to his offending behaviour, but what he will likely accomplish for the benefit of the community in the future. CONCLUSIONS: [ 128 ] Based on all of the forgoing, I am satisfied that the granting of a conditional discharge is an appropriate sentence for Mr. Street, and is not contrary to the public interest. SENTENCING: [ 129 ] Mr.

Street, will you please stand and come forward? Mr. Street, before I proceed with the sentence that I will be imposing upon you, I want to make one or two comments. First of all, court orders are not to be considered anything in the nature of an inconvenient suggestion. They are something that you must do. Failure to abide by the terms of the orders which I am about to impose upon you may have some very negative effects on you.

First of all, you may be charged with a breach of those conditions; secondly, you may lose the benefit of a conditional discharge by further offending behaviour. [ 130 ] Having considered all of the circumstances, I am of the view that the conditional discharge should be combined with a probation order for a period of 21 months.

The terms and the conditions that I will impose upon you will be in the following fashion. [ 131 ] Starting with the mandatory conditions and using the pick list numbers: 200, you shall keep the peace and be of good behaviour; you shall appear before the court when required to do so by the court; you shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 132 ] Reporting condition 201: You shall immediately report in person to the probation office here in Nanaimo, British Columbia, at the address that will be provided to you before 4 p.m. today and after that you shall report as directed. [ 133 ] Residence and occupation, 205: When first reporting to the probation officer you shall inform him or her of your residential

address and telephone number. 206, you shall not change your address or telephone number without first notifying the probation officer. [ 134 ] Communication or limited communication with others, 219: you shall have no communication or contact, directly or indirectly, with any of the following individuals, Eadie Whitford, Heather Cooper, Tara Hill, except through your probation officer, for the purposes of arranging restorative justice programs and for participation in those programs, at the option of each of those three individuals. [ 135 ] Next number, you will participate in a restorative justice program organized by, and at the direction of, your probation officer. [ 136 ] Drugs and alcohol, 227, you shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 137 ] I am going to pause for a moment and explain that I share the view expressed by defence counsel that in this case, given Mr.

Street's significant achievements in obtaining and completing counselling, that a further counselling condition is not required. [ 138 ] I am also of the view that notification of present or future employees of the terms of his probation order is not essential. I agree that he has been forthcoming and very open about his offending behaviour. [ 139 ] I am going to pause a moment. Is Crown seeking a separate restitution order or do you want that tied in with part of the -- [ 140 ] MR. MCCORMICK: The notes that I had from Mr.

Kulla were a stand alone restitution order had been sought, but for the first time I heard today that in fact Mr. Street had provided my friend with monies in trust. So it would seem to me that that ought to be made forthwith as part of the probation order. [ 141 ] MR. CHURCHILL: Your Honour, I should just clarify, Mr. Street has the funds ready to go. He's got a cheque ready to go today, have not been placed into my trust account, but he can pay that either today or I would suggest within a week. So I think a stand alone order or an order within the body of the discharge are both appropriate.

I expect it will be paid before the end of the week. [ 142 ] MR. MCCORMICK: I would expect it should be made within the context of the probation order, Your Honour, and if that's the case -- [ 143 ] THE COURT: All right. I will make it within the context of the probation order.

He is to pay restitution in the amount of $2,320, to the clerk of the court for the benefit of Woodlands Secondary School, which shall be paid, in full, no later than March 18th, 2016, and which amount will be paid out, on application by the court registry, to Woodlands Secondary School without further order of the court. [ 144 ] I am going to invite any further submissions with respect to the terms of the conditional discharge. [ 145 ] MR. MCCORMICK: If I might have one moment with my friend, Your Honour? [ 146 ] THE COURT: Thank you. [ 147 ] MR. MCCORMICK: Nothing for the Crown, Your Honour. [ 148 ] MR.

CHURCHILL: Nothing further, thank you. [ 149 ] THE COURT: All right. My final order will be with respect to the victim fine surcharge. I will give Mr. Street one month in order to pay the victim fine surcharge. [ 150 ] MR. CHURCHILL: Thank you, Your Honour. [ 151 ] THE COURT: Anything further? [ 152 ] MR. CHURCHILL: Nothing, Your Honour. Thank you very much. [ 153 ] THE COURT: That concludes my reasons. (REASONS FOR SENTENCE CONCLUDED)