Her Majesty the Queen - v. -, 2011 SKPC 179

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 179 Date: November 23, 2011 Information: 24433232 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Elaine Sharron Salikin Appearing: Jerome Tholl For the Crown Barry Nychuk For the Accused DECISION M.T. GORDON , J [ 1 ] Elaine Sharron Salikin is charged that, between the 1 st of January 2007, and the 31 st of December 2009 at Mortlach, in the Province of Saskatchewan, did by deceit, falsehood or other fraudulent means defraud the Village of Mortlach of money of a value over five thousand dollars, contrary to section 380(1) (

a) of the Criminal Code . [ 2 ] On August 18, 2011, Ms. Salikin entered a guilty plea to a single count of fraud over $5,000.00, contrary to section 380(1) (

a) of the Criminal Code .

[ 3 ] A pre-sentence report was ordered pursuant to section 721(1) of the Code and sentencing was adjourned to September 12, 2011. At that time I heard submissions from counsel. I adjourned to today’s date to consider the matter. The Facts [ 4 ] The facts are not in dispute. In 2005, Ms. Salikin was the administrator for the Village of Mortlach. She had several duties including receiving payments for water bills and making deposits including deposits for the post office. Ms. Salikin was the sole employee.

She devised a system using the four copies of the water bill, by taking payments and stamping “copy one” that was mailed to homeowners “paid”. She would destroy the second and third copy of the water bill that were in the ledger box and copy four was filed away. She would not include the cash payment for the water bill in her deposits, but rather keep a substantial portion. She would also receive funds for the post office account, although she did not run the post office herself.

She would replace the post office account monies with cash and cheques from the water bill payments to the post office account and then keep the post office money. Then she would purchase a post office money order with her own personal cheque and substitute with the village money. [ 5 ] In June 2009, Ms. Salikin quit her job at the village. Ms. Salikin stated in the pre-sentence report that she could not live with herself any longer. She left so the temptation to steal was no longer present. [ 6 ] In January 2010, the new administrator noted irregularities with the water bill payments.

On further investigation she found her own past payments for water bills had not been recorded as received. An auditor was hired to review the period 2007 to the present. A substantial amount of money was found missing. Ms. Salikin has admitted to stealing $65,000.00. [ 7 ] The investigation ascertained that the money order purchased by the accused was being sent to a trustee in bankruptcy under a consumer proposal in bankruptcy. Other withdrawals showed monies paid to the Casino and Heritage Inn for gambling. [ 8 ] The village made a claim to its insurer, SGI.

The Crown, at the request of the Village of Mortlach, is requesting restitution in the amount of $65,000.00 in favour of SGI. Crown Position [ 9 ] The Crown suggested that a term of incarceration of less than two years is the appropriate sentence. The Crown opposed Ms. Salikin being the subject of a conditional sentence order. The Crown submitted that a community based sentence does not adequately address the sentencing principles of deterrence and denunciation. [ 10 ] The Crown noted the following as aggravating factors: 1. Ms. Salikin was in a position of trust. 2. No monies have been recovered. 3.

The offence occurred over a long period of time, involving numerous transactions. 4. Ms. Salikin had devised a complex scheme to divert money and conceal her actions. 5. The victim is a public body of rate payers in a small community. [ 11 ] The Crown filed a brief that included several sentencing decisions from the Saskatchewan Court of Appeal and Saskatchewan Court of Queen’s Bench.

Defence Position [ 12 ] On behalf of Ms. Salikin, counsel for the Defence filed a book of exhibits and a book of five cases. Defence counsel distinguished some of the cases filed by the Crown citing the following factors: duration of the fraud and victims of the fraud. He argues that the case of R. v. Purves , 2011 SKQB 162 , cited by the Crown is similar in many respects, such as the amount of fraud by this Rural Municipality Administrator was $150,000.00, it occurred in a similar time frame and Ms.

Purves suffered from depression, anxiety, financial problems and gambling problems. [ 13 ] Finally the Defence referred to the unreported cases of R. v. Wes Stevenson, who was President of FNUC, and who received a conditional sentence, and R. v. Paulette Dumont , a decision of Judge M. Beaton of the Provincial Court, who imposed an eighteen month conditional sentence. [ 14 ] In closing the Defence argued that a properly crafted conditional sentence can satisfy the principles of deterrence and denunciation in this particular case. Personal History [ 15 ] Counsel for Ms.

Salikin acknowledged that the pre-sentence report accurately reflects Ms. Salikin’s personal circumstances surrounding this offence. [ 16 ] Ms. Salikin is fifty-three years of age. She was raised on a farm near Quill Lake. She describes her relationship with her parents and five siblings as “perfect”. [ 17 ] Ms. Salikin married Keith when she was twenty-three years of age. They have two adult children. The Salikins relocated to Moose Jaw in 1990. She describes a close relationship with her husband. [ 18 ] There was medical evidence filed that indicates Ms. Salikin has several health issues. Ms.

Salikin has diabetes and is prescribed insulin, metformar and glyburde. She also is on medication for high blood pressure. She also has suffered stress related problems and has had a related skin condition that from time to time requires treatment. In 2009 Ms. Salikin was diagnosed and is being treated for sleep apnea and requires oxygen at night. Ms. Salikin is prescribed medication for depression and anxiety. She has regular appointments with Mental Health and Addiction Services. [ 19 ] Ms. Salikin does not have a problem with drug or alcohol abuse.

She admits that she started gambling more frequently when her husband was out of work in 2006. She become addicted to gambling and some of the stolen money was used for gambling. She has not gambled for well over a year and is also receiving help from a counsellor. [ 20 ] Ms. Salikin has her Grade 12 education, a secretarial course and a degree in local government administration. [ 21 ] From 2005 to 2009 Ms. Salikin was employed as the Village Administrator in Mortlach. She was also employed by the Rural Municipality of Wheatland from February 1990 to 2010. She resigned from both positions.

In 2008 she took one month stress leave. She returned to a backlog of work at the village as no replacement had been hired. [ 22 ] Ms. Salikin and her husband were in financial difficulties in 2006. Mr. Salikin had lost his job. They entered into a consumer proposal for bankruptcy and were making payments of $850.00 a month. They were trying to pay business debts for her husband.

[ 23 ] Ms. Salikin declared bankruptcy in December 2010. Her husband has also declared bankruptcy. She and her husband are starting to rebuild financially. She is unable to work at the current time due to her health. [ 24 ] Ms. Salikin has no previous criminal record. [ 25 ] Ms. Salikin has been assessed as a low risk to re-offend. Her main risk factor is her financial situation. Victim Impact [ 26 ] The village is requesting restitution of $65,000.00 for the amount not covered by insurance.

Circumstances of the Fraud [ 27 ] The Crown set out the circumstances which were acknowledged by the Defence and set out earlier in the decision. Ms. Salikin was the sole office employee for the village. Ms. Salikin defrauded the village by devising a scheme which started with water bill payments but also involved the post office deposits. She concealed her actions which continued for two years. She resigned and subsequently the new administrator became aware of the irregularities. In the end it was the Village of Mortlach that was short the money.

Sentencing Circumstances [ 28 ] A judge must sentence in accordance with the law, as found in the Criminal Code and case law; in particular decisions from our higher courts. [ 29 ] Sections 718 to 718.2 of the Criminal Code state the purposes and principles of sentencing. Of particular relevance in this case are the following: 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, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [30]

Section 742.1 states the requirements that must be met in order for the Court to consider a conditional sentence. Theseinclude the following: the offence must not be one of those listed as ineligible, the sentence being considered is less than two years, theCourt must be satisfied that the safety of the community would not be endangered and the principles and purposes of sentencing insection 718 and 718.2 are satisfied. [31] R. v. Proulx, 2000 SCC 5 , 2000 S.C.C. 5, discusses in detail conditional sentences in relation to the fundamentalpurposes and principles of sentencing.

Proulx, supra, states that a conditional sentence can be a punitive sanction and also lead torehabilitation of the offender. A conditional sentence is and must be different from a suspended sentence and probation. This is usuallyachieved by the imposition of onerous conditions, including a restriction on his or her liberty, and the length of the sentence.

There is nostatutory remission if the accused breaches and is ordered to serve the balance of the sentence in an institution. [32] In Proulx, supra, Lamer J. stated at paragraph eighty-two as follows: This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerablediscretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamentalprinciple of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the"punishment fits the crime". As a by-product of such an individualized approach, there will be inevitable variation in sentences imposedfor particular crimes.

In M. (C.A.), supra, I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime... . Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred. [33] Several cases of higher Saskatchewan Courts have been referred to by both counsel. Many are the same, but counsel, beinggood advocates, emphasized certain aspects of each case and minimized other aspects, to support their position. [34] However, this illustrates the fact that sentences do differ.

As Judge T.W. Ferris states in his book “Sentencing: PracticalApproaches”, at page one:

There is no such thing as passing the correct sentence in a moral sense or any other sense.

More than one alternative may be equally justifiable. [ 35 ] It is clear from the cases referred to by both counsel that denunciation and deterrence are very important principles to be considered and applied when sentencing an offender for fraud charges. [ 36 ] At paragraph one hundred and two in Proulx , Lamer J. states: “Denunciation is the communication of society’s condemnation of the offender’s conduct.” [ 37 ] Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.

That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of a jail sentence that would ordinarily have been imposed in the circumstances. [ 38 ] Deterrence, both general and specific, is based on the premise that the threat or example of punishment discourages crime. A conditional sentence can provide some deterrence if the conditions are tailored to the offence and the offender.

For example, a first time offender, confined to his or her home, and/or a number of community service hours are examples of such conditions. Issue [ 39 ] The only question to be answered is whether Ms. Salikin should serve her term of imprisonment in a provincial institution or jail, or in the community pursuant to a conditional sentence. [ 40 ] In considering an appropriate sentence, the aggravating and mitigating factors must be taken into account.

I find the following to be mitigating factors: - No previous criminal record. - Full cooperation with the authorities including a guilty plea. - Quitting her job prior to being detected on the basis that she did not want to steal anymore. - Remorseful. - Close family support including a long term stable marriage and long term Moose Jaw resident. - No alcohol or drug problems. - Educated and employed (although it is recognized that her knowledge may have assisted in her ability to carry out the fraud). - Seeking professional assistance for her physical and mental health problems, as well as personal counselling and following her treatment plan and medication. - Assessed as low risk to re-offend in the pre-sentence report. - No indication of living an extravagant lifestyle.

The evidence is the opposite. She was trying to pay bills for necessities as well as assist her husband in his ill-fated business venture of hauling trailers. - Compassionate, responsible person in relation to family, in particular assisting her mother when she was ill. [ 41 ] I find the following to be aggravating factors: - She took advantage of her position as a sole employee in a position of trust for a small Saskatchewan community. -The scheme, while not the most complex, did involve planning and deception and taking and replacing monies in various accounts within her control.

- She abused her position of trust. - The amount of the loss, while not as great as some cases referred to, is still substantial. - No restitution has been made. Conclusion [42] I have concluded that neither probation or a penitentiary term is appropriate for this accused. I agree with Defence counselthat a sentence of under two years is appropriate. As well, I am satisfied that Ms. Salikin would not endanger the safety of thecommunity, should she be allowed to serve her sentence in the community. I base this conclusion on the following. She has no criminalrecord.

She has entered a guilty plea and cooperated with the investigation. She resigned from her position as Village Administrator. She has no alcohol or drug problems. She admits to a history of gambling and depression, however, she says she stopped gambling inFebruary 2009. She continues to attend for counselling and following her treatment plan which including taking prescribed medication. She is assessed as being in the low risk category to re-offend. She has a stable residence and long term marriage.

She has support fromher husband and sisters. [43] The question is whether a conditional sentence is sufficient to give expression to the principles of denunciation anddeterrence. The duty of the sentencing judge is to craft a sentence that is just and appropriate. The sentence must reflect the gravity ofthe offence. [44] In R. v. Durocher, (SK CA), [1992] 100 Sask. R. 108, in which the accused had defrauded the Departmentof Social Services of $26,379.00, she was sentenced to an eight month jail term and restitution. At paragraph three Mr.

Justice Cameronstated: Were one to approach the matter compassionately, with her and her family’s interests solely in mind, or were one to have regard alonefor her rehabilitation, one would not incarcerate her. But considerations personal to her must be balanced with others, impersonal, infinding a fit sentence. This is our duty. [45] The question becomes whether incarceration is the only suitable way to express society’s condemnation of the offender’sactions or to deter others from similar conduct. [46] In R. v. Proulx, supra, the Court discusses at some length the nature of the conditional sentence.

The Court notes while aconditional sentence is a sentence of imprisonment, there is a significant difference between serving one’s sentence behind bars asopposed to being confined to one’s home.

However, at paragraph forty-one of Proulx the Court notes as follows: A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where theoffender is forced to take responsibility for his or her actions and make reparations for his or her actions and make reparations to both thevictim and the community all the while living in the community under tight controls. [47] Violations or a breach of a conditional sentence order need only be proved on a balance of probabilities and an offender can beordered to serve the rest of the sentence in jail.

A conditional sentence is not subject to reduction through parole. [48] The Crown argued that the starting point for sentences for fraud is actual incarceration. The Crown filed a binder ofSaskatchewan cases of the Court of Appeal and Queen’s Bench. In response, the accused filed a book of authorities of fiveSaskatchewan cases, again from the Court of Appeal and Queen’s Bench. [49] At paragraph eighty-six in Proulx, supra, the Court notes that in R. v.

McDonnell, (SCC), [1997] 1 S.C.R.948, that “starting point sentences” may be set out as guides to lower Courts in order to achieve greater uniformity and consistency. At

paragraph eighty-seven, the Court goes on to say: In my view, the risks posed by starting points, in the form of offence-specific prescriptions in favour of incarceration outweigh theirbenefits. Starting points are most useful in circumstances where there is a large disparity between sentences imposed for a particularcrime because the range of sentence set out in the Code is particularly broad. In the case of a conditional sentence, however, thestatutory prerequisites of

section 742.1 considerably narrow the range of cases in which a conditional sentence may be imposed. [50] At paragraph one hundred in Proulx, supra, the Court comments further on the dual aspects of conditional sentences: Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorativeobjectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

Where the need forpunishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be themore attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferableto incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively asincarceration. This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarcerationwhere appropriate in the circumstances. [51] These cases consider the following factors: amount of the fraud (over $45,000.00), the fraud occurring over an extendedperiod of time that involved a complex plan to avoid detection, whether the victim was a public body, whether the motivation was greed,or getting caught up in a scheme on the Internet, whether the accused had apologized and was remorseful, whether the accused hadrepaid any amounts and could repay given time, whether there was evidence of an accused having a gambling or alcohol problem orwhether the accused is suffering from psychological problems.

In closing, the Crown suggested an actual jail sentence of twelve monthswas appropriate and a restitution order for $65,000.00 in favour of SGI. [52] There is no doubt that actual incarceration is appropriate in some cases. One of the facts stressed by the Crown is the amountof the fraud and the fact that no restitution has been paid. [53] Again I note the differences in the circumstances of this case with the ones filed by the Crown as follows. Ms. Salikin has nocriminal record. The amount of the fraud is less than in all the cases filed by the Crown except for R. v. Boreen (1997), (SK CA), 152 Sask.

R. 153 and R. v. Berston, 2000 SKCA 47. These cases involving elected members of the Legislature standalone and are not a useful comparison. [54] At paragraph fifty-five in R. v. Gopher, 2006 SKCA 5, tells of another individual who was involved to some extent in afraudulent scheme: The situation of Celina Wuttunee also requires some comment. She became a part-time TLE secretary in 1993 and on April 1, 1998became the TLE administrator. She obtained $234,000 in cheques and ultimately received a conditional sentence of 18 months.

Issues ofparity as between her and the respondents cannot be disregarded but her circumstances are different from theirs in that she pled guilty,co-operated with the Crown and, although she prepared cheques, had no signing authority and held less responsible positions than therespondents. [55] R. v. Purves, 2011 SKQB 162, is a decision of Mr. Justice Scheibel of the Court of Queen’s Bench. This case has similaritiesto the case at bar. Ms. Purves was employed by a Rural Municipality and entered guilty pleas to three counts of fraud, totalling$150,000.00.

The only issue was whether the sentence should be pursuant to

section 742.1 of the Criminal Code. At paragraph eighteenMr. Justice Scheibel quotes with approval the analysis of Madam Justice Gunn in R. v. Moulton, 2002 Sask. R. 71, in regards to R. v.Proulx. [56] Ms. Purves suffered depression and anxiety and was a gambler. This is similar to Ms. Salikin. However, Ms. Purves hadrepaid $33,000.00 at the time of sentencing. It is noted in the exhibit book filed by the Defence that Ms. Salikin with her family hasexperienced tough financial times and she and her husband have struggled to get back on their feet after he lost his job.

In addition,progress notes have been filed on the accused’s mental health and the steps she has taken over the past almost two years to deal with her

problems. [ 57 ] Ms. Salikin admits to having a gambling problem at one point, to pay debts for her husband’s ill-fated job after he lost his previous employment. Ms. Salikin and her husband have not lived a life of greed and high-living. They have struggled to pay their debts and monthly living expenses. There was little personal gain. [ 58 ] Finally, Defence counsel pointed out the case of R. v. Pauline Dumont , an unreported decision in French of Provincial Court Judge M. Beaton in August 2011. Ms.

Dumont defrauded the Catholic Church in Gravelbourg of almost $80,000.00 to help pay her credit cards and business accounts. She had a previous fraud conviction from Calgary. She was given an eighteen month conditional sentence. [ 59 ] The Crown points out the scheme used by Ms. Salikin was planned, elaborate, sophisticated and involved altering several accounts she handled to obtain monies and then cover up her tracks. The fraud was in relation to a public body and the tax payers of the Rural Municipality.

There are aggravating factors, but not unusual factors in fraud cases. [ 60 ] It is noted that the Rural Municipality did not have any system of checks and balances in place to help protect itself against a possible fraud when one employee is handling all the monies. Ms. Salikin took advantage of this weakness. Due diligence on the part of the Rural Municipality was lacking. This is not to put blame on the victim here, but it does distinguish this case from ones involving the Provincial Government or a government department. [ 61 ] Ms. Salikin has been assessed as a low risk to re-offend.

In my view, incarceration is not necessary for specific deterrence. I am satisfied that a conditional sentence with electronic monitoring can satisfy the principle of general deterrence.

Summary [ 62 ] Considering all the circumstances, I am satisfied that the requirements of a conditional sentence have been met and that the purposes and principles of sentencing as enunciated in the Code can be satisfied within an eighteen month conditional sentence order with conditions, the first six months on electronic monitoring. [ 63 ] Therefore, Elaine Salikin is sentenced to incarceration for a period of eighteen months to be served in the community pursuant to a conditional sentence order. The order is that the accused shall: 1. Keep the peace and be of good behaviour. 2.

Appear before the Court when required to do so by the Court. 3. Report to the Chief Supervisor or his delegate immediately after the making of this order and thereafter when required and in the manner directed by the Chief Supervisor or his delegate. 4. Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or Supervisor. 5. Notify the Supervisor in advance of any change in your name or address. 6. Promptly notify the Supervisor of any change of your employment or occupation. 7. Live in a residence approved by the Supervisor. 8.

Refrain from the consumption of alcohol or illegal non-prescription drugs, and submit to breath, blood or urine testing on demand of a Peace Officer/Supervisor. 9. Refrain from entering any premises where the primary function is the sale of alcohol.

10. That except for medical and other emergencies, you must abide by a daily curfew and be confined to your residence between the hours of 9:00 p.m. and 7:00 a.m. unless you have the permission of the Court or the prior written permission of the Supervisor. 11. Present yourself in person to any Peace Officer/Supervisor checking any provision of this order. 12. Perform 100 hours of community service work as arranged and directed by, and to the satisfaction of the Supervisor/ Community Services Worker Coordinator or designate by November 30, 2012. 13.

Attend and meaningfully participate in a program for continuation of personal counselling and treatment. With Electronic Monitoring: 14. You shall participate in the Electronic Monitoring program for a period of six months, and abide by the rules and regulations of that program. 15. You must reside at 1647 - 11 th Avenue N.W. in Moose Jaw, unless granted prior approval in writing by the Supervisor. 16. You shall be confined to your residence for 24 hours a day unless you receive prior written permission from the Supervisor to be absent from your residence. 17.

You must personally present yourself to any Peace Officer or Supervisor monitoring the provisions of this order. 18. You shall not possess or consume any alcohol or illegal non-prescription drugs. 19. You shall permit a search by a Peace Officer without reasonable and probable grounds, of your person, residence or vehicle of which you are an operator. 20. The victim surcharge is waived in accordance with

section 747 of the Criminal Code . In addition, there will be a restitution order pursuant to

section 748 of the Criminal Code as follows: You shall pay the amount of $65,000.00 as restitution to the Village of Mortlach to SGI in Regina, Saskatchewan. Dated at Moose Jaw, Saskatchewan, this 23 rd day of November, 2011. __________________________________________ M.T. Gordon, J