R. v. Bradley Date:, 2012 BCPC 290

Citation: R. v. Bradley Date: 20120625 2012 BCPC 0290 File No: 84974-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE BRADLEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: P. Miller Counsel for the Accused: L. Kompa Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 25, 2012 Date of Judgment: June 25, 2012

[ 1 ] THE COURT: The accused, Wayne Bradley, is charged with ten counts pursuant to s. 135 and its various subsections of the Employment Insurance Act .

He is alleged on ten separate occasions to have made false statements to the Canada Employment Insurance Commission with respect to his employment status from time to time, in roughly a period of time commencing in or about the month of May, 2008, and running into the year 2009. [ 2 ] The statements are alleged to have been made by him in a number of ways, including by way of completing telephonic declarations, for example, in the period of time from May 4th to June 28th, 2008, when he declared or represented in his telephone communication that he was not working at gainful employment, when in fact he was employed by Silvermere Forest Products and over the relevant period of time covered by Counts 1 to 4 in the information before the court, in fact earned some $4,309. [ 3 ] He also made false representations by either telephone or in person in interviews with representatives of the Employment Insurance Commission, again indicating that he was not working at gainful employment, when in fact he was. [ 4 ] One of the charges before the court relates to a false written representation that he made, apparently answering a question in some form of document that no doubt was forwarded to him by the Employment Insurance Commission, asking about his employment status. [ 5 ] The other period of time in issue in this matter, certainly relating to four false representations or declarations is the period from January 4th to February 14th, 2009, when he was employed by Unicorn Products Ltd., I would understand on a reasonably full-time basis and, contrary to his representations, made $1,787. [ 6 ] The accused has pled guilty to all the counts that are on the information before the court. [ 7 ] I am told, as well, that the reason for his making these false representations in the various ways that I have described is because in the period of time from roughly 2007 into 2009, he was addicted to cocaine and having difficulties with that substance.

I take these representations, made both by his counsel and by himself when called upon by the court, to indicate that by reason of this addiction, he required more money than he was making at the time, either in his employment at Silvermere Forest Products or at Unicorn Products Ltd., and found the perhaps one way of obtaining the funds that he no doubt used to acquire drugs was to make these false declarations so that he had essentially two streams of income coming in the door at any time, thereby enabling him to have the requisite funds to buy these very expensive illicit drugs. [ 8 ] I am told that during the period of time after he voluntarily left his employment at Silvermere Forest Products, sometime after May 3rd, 2008, that he did so on a voluntary basis so as to go into a residential drug program at Inner Visions.

He apparently completed two segments of this program, the first lasting some three months, and the second stage program of three to four month duration.

Both these stages of this program were completed before he commenced his work at Unicorn Products Ltd. [ 9 ] I am told that the programs that he did at Inner Visions were successful for him and following his discharge from these programs he has managed to place this addiction behind him and cocaine is no longer a factor in his life. [ 10 ] As well, and importantly, I am told that he has had gainful employment after leaving this program, and he is now working full- time at European Sharpening, an outfit in Surrey, earning some $17 per hour. [ 11 ] The gentleman who appears before me is 53 years of age.

He is single. He rents a room and works in Surrey. [ 12 ] I am told that he has repaid the amount of Employment Insurance benefits that he received historically in the total amount of $3,358 and that as things stand this morning, these funds that he was not entitled to receive have been reimbursed in full to the federal government. This occurred either by way of payments that he may have made voluntarily, or by reason of amounts garnisheed from his pay at places of employment, or lastly the federal government seizing income tax rebates that otherwise would have been sent to him.

This, I think, is certainly a positive factor. [ 13 ] Unfortunately, in terms of the only thing resembling a record that has been placed before me by Crown, this accused had three administrative sanctions pursuant to s. 38 of the Employment Insurance Act , whereby he was fined for similar matters in the period of time 2001 to 2008. During part of this period of time, at least, he was struggling with a cocaine addiction.

None of these matters proceeded to charges under the legislation, nor did they proceed to court, and were dealt with, as I have said, administratively by reason of a fine and apparently repayment of the amounts that he wrongly obtained had he told the truth to the persons charged with running this insurance scheme. [ 14 ] As far as the principles of sentencing here, they are, in my view, not greatly different than often considered by the court when a matter comes before it for disposition and sentencing, and they would include the need to generally denounce the conduct that Mr.

Bradley is guilty of, as well, the need to specifically deter him from doing this kind of thing again, and very, very importantly in a case like this, I think the need to send by way of general deterrence a very clear message to members of the public that this type of activity will not be condoned by anyone associated with the system, including the Provincial Court. As well, there is the need always for rehabilitation of the accused. [ 15 ] I do take into account by way of mitigating factors the fact that Mr. Bradley has pleaded guilty and the expense of a three-day trial has been avoided.

That is always a factor that the court takes into consideration. [ 16 ] As well, I take into account the fact that I am told, and there is no dispute on this, that the benefits that he received that he was not entitled to receive have now been repaid in full in the amount of $3,358. [ 17 ] In terms of position on sentencing, Crown submits that an appropriate fine with respect to the ten counts before the court would be some $750 per count, and I am told that the legislation provides for a minimum fine of $200 and a maximum fine of $5,000 for each

count. In addition, Crown suggests that a jail sentence would be appropriate and indicates that in its view, a conditional sentence order under s. 742 of the Criminal Code of Canada would be appropriate, 742.1, in fact. [ 18 ] The Crown proposes that a four-month conditional sentence order would be appropriate, and does draw to my attention that the maximum period of incarceration or imprisonment that is available for an offence like this, would be a period of six months. [ 19 ] Mr. Kompa, for his part, says that his client has learned his lesson and that it would be sufficient if I simply fine him.

He suggests a fine in the order of $400 to $450 per count, and that would be enough. He says that if I were to place him under house arrest, and that would of course be pursuant to a conditional sentence order, that it would be appropriate that that be done so that he could work at his gainful employment, requiring him to be at work at 6:30 in the morning, working typically on a given weekday shift to 3:30 in the afternoon. [ 20 ] In my view, it would be appropriate to fine Mr. Bradley with respect to what he has done here, and a fine of $500 per count would be appropriate. This would be a fit and just sentence.

The total fine therefore will be some $5,000, and at the conclusion of these reasons, I will call upon both counsel as to their submissions with respect to time to pay. [ 21 ] In my view, this is also a case where a period of incarceration would be appropriate. I need to send the clearest and strongest possible message that I can send as a judge of this court to members of the public who might do this kind of thing and be guilty of this sort of misconduct, that it cannot and will not be tolerated, that there are consequences involved in doing this.

The Employment Insurance scheme is basically funded by working Canadian taxpayers, and is a fund that is created, if you will, to assist people who for valid reasons are not able to work at gainful employment. It is a form of "security blanket" that arguably is available to help the less fortunate among us who for one reason or another are not able to work at gainful employment that produces income for them to bring into their households. If the people like Mr.

Bradley are permitted to do what they do without the strongest sanction being brought to bear when they are found out, it attacks the whole purpose of the scheme, and is in my view to be seen in a serious light. [ 22 ] A period of incarceration would be appropriate here, and I am satisfied that the test set out in s. 742.1 of the Criminal Code is met, permitting me to impose a conditional sentence. The sentence is less than two years, and I am satisfied that service of the sentence in the community would not endanger the safety of the community.

As well, I find that to do so would be consistent with the fundamental purpose and principles of sentencing that are set out in the Criminal Code in s. 718 to 718.2, some of which I have alluded to above, and in particular I stress the need for general deterrence to deter others from doing what Mr. Bradley did historically. [ 23 ] In the result, I am of the view that the conditional sentence order sought by Crown counsel in this matter is entirely appropriate, and the terms of the conditional sentence order that I make are as follows. [ 24 ] Firstly, while subject to the conditional sentence order, Mr.

Bradley will keep the peace and be of good behaviour. [ 25 ] He will appear before this court when required to do so by the court. [ 26 ] He will report not later than four o'clock p.m. on June the 26th, 2012, to a conditional sentence supervisor and thereafter as, how and when directed by the conditional sentence supervisor, and in the manner directed by his conditional sentence supervisor. [ 27 ] He will remain within the Province of British Columbia unless he has written permission to go outside this province, first obtained from his conditional sentence supervisor, or obtains an order from the court permitting such travel. [ 28 ] He will notify the court or his conditional sentence supervisor in advance of any change of his name or address, and he will promptly notify the court or the conditional sentence supervisor of any change of employment or occupation. [ 29 ] He will provide to his conditional sentence supervisor his current address and telephone number, and he will not change either without first obtaining the written approval of his conditional sentence supervisor. [ 30 ] While he is serving his conditional sentence order for the first 60 days, he will be subject to a curfew that will run from nine o'clock p.m. till 5:30 a.m. on weekdays, Mondays through to Friday, and from 9:00 p.m. to seven o'clock a.m. on weekends, Saturday and Sunday.

During that period of time, he is to be off the premises in which he resides, or on the land on which those premises are situate. [ 31 ] By way of explanation and not part of the conditional sentence order, if he is renting a room in a home that has a front yard or back yard, he would be permitted outside these hours to be in the front yard or back yard or the surrounding land on which that home is situate, without being in breach of the order.

But he is not permitted to be off the land and premises in which he resides during the first 60 days, otherwise he could be in breach of the conditional sentence order. [ 32 ] There will be an exception to the curfew in that he may be away from the land and premises in which he resides for purposes of obtaining emergency medical or dental care, or in the event that he has the written permission of his conditional sentence supervisor to be absent from his premises during the hours during which the curfew is in effect. [ 33 ] There being no electronic monitoring suitability report placed before the court, I do not order any electronic monitoring.

But I do say to you, Mr. Bradley, as I alluded to earlier in my few remarks, that the expectation of the court when these orders are made is that you will comply strictly with them. If you do not and you are found to be in breach of any of these orders, oftentimes when the matter comes back before me, as it will, the Crown counsel will ask that you serve any period of time left to run on the conditional sentence order in real jail.

That is often the Crown's starting position. [ 34 ] Now, there is one last term that I think I should make in this conditional sentence order, and it is as follows: that during the first 60 days of the conditional sentence order while the curfew is in effect, Mr. Bradley will present himself at the door of his residence, forthwith, upon the reasonable request of a peace officer or his conditional sentence supervisor, in order that either may check and confirm his compliance with the curfew herein.

[ 35 ] Mr. Bradley, you may expect that this will happen. [ 36 ] Is there anything else that I should deal with here? [ 37 ] MR. KOMPA: Your Honour, with respect to time to pay, I am going to ask for one year, please. [ 38 ] THE COURT: All right. What do you have to say, Mr. Miller? [ 39 ] MR. MILLER: That is reasonable, Your Honour. [ 40 ] THE COURT: All right. I will give you until June 30th, 2013, to pay the fine. (REASONS FOR SENTENCE CONCLUDED)