R. v. Johnson, 2018 NSSC 10

SUPREME COURT OF Nova Scotia Citation: R. v. Johnson , 2018 NSSC 10 Date: 20180115 Docket: CRAT 457921 Registry: Antigonish Between: Her Majesty The Queen v. Dawn Marie Johnson Judge: The Honourable Justice James L. Chipman Heard: Written Decision: January 15, 2018, in Antigonish, Nova Scotia January 18, 2018 Counsel: Alex Keaveny and Sarah Lane, for the Crown Laura McCarthy, for the Defence Orally by the Court: Introduction [ 1 ] On August 24, 2017, Ms.

Johnson entered guilty pleas to fraud over $5,000 ( Criminal Code s. 380(1)(a)) and forgery ( Criminal Code s. 367). [ 2 ] During the offence period of 2010 to 2013, Ms. Johnson was a native employment officer with the Paq’tnkek Mi’kmaw Nation (“PMN”) and she defrauded her employer of $111,664.26. [ 3 ] The sentencing of Ms. Johnson was originally scheduled for November 10, 2017; however, given a delay in preparing the requested Gladue report, the matter was re-scheduled to today’s date.

For reasons I will elaborate upon, the Court now has the benefit of two Gladue reports, a psychologist’s therapy report and the parties’ sentencing submissions and authorities. Today the Court received evidence from Cheryl Fritz of the Mi’kmaw Legal Support Network (“MLSN”). Ms. Fritz provided background concerning what is involved in a native healing circle. Facts Giving Rise to the Offences [ 4 ] At today’s hearing the Crown read into the record the following 21 paras. from their brief: 1.

During the offence period, 2010 to 2013, Dawn Johnson was a Native Employment Officer (NEO) for the Paqtnkek Mi’kmaw Nation. 2. Ms. Johnson was responsible for assisting band members in accessing funding for education programs, childcare services and related assistance, with the overall goal of increasing employability skills and reducing individual dependence on social programs. 3. As NEO, Ms. Johnson was responsible for various activities, including administering funds to eligible individuals, and accounting to funders on how public monies were spent. 4. Ms. Johnson was Paqtnkek Mi’kmaw Nation’s sole NEO.

She was subjected to minimal supervision and oversight. She was trusted. 5. The services Ms. Johnson administered for the Paqtnkek included a variety of programs aimed at increasing the employability skills of Band members, and reducing individual dependence on social programs. These services included providing career and employment counselling to facilitate and promote employment opportunities, as well as identifying employment opportunities. As NEO, Ms. Johnson was also tasked with administering funding for employment activities and educational programs. 6. For some of the funds Ms.

Johnson administered as NEO Paqtnkek Mi’kmaw Nation would be reimbursed by other government

agencies, including the Mi’kmaq Employment and Training Secretariat (METS). Part of Ms. Johnson’s job was to account to funders such as METS on how public monies were spent, so that the band could be reimbursed. 7. Ms. Johnson abused her position as NEO to defraud Paqtnkek Mi’kmaw Nation of $111,664.26 through a series of 76 fraudulent cheques. 8. Ms. Johnson’s fraud involved hundreds, possibly thousands, of separate deceptions. For each cheque, Ms. Johnson had to (1) get the cheque from the Band, (2) cash the cheque at her bank, and (3) cover her tracks from the band and the auditor. 9.

For a cheque to be issued by the band’s finance department the department required a requisition form. So long as a completed form was presented by a person with the authority to request the monies, a cheque would issue. 10. To get a cheque Ms. Johnson had to create a requisition form. This was a written form identifying: a. How much money was needed; b. The name of the ‘recipient’ band member who the money was for; and c. The General Ledger account number for the program the monies were to come from (As NEO Ms. Johnson had sole authority over several such accounts). 11. With the fraudulent form in hand, Ms.

Johnson would provide the requisition form to the finances department, who would then give her the cheque. 12. Armed with a fraudulent cheque, Ms. Johnson would first forge the ‘recipient’s’ signature on to the back of the cheque, to make it appear the cheque had been endorsed by the ‘recipient’. 13. Ms. Johnson would then take the fraudulently endorsed cheque to her bank, the Bergengren Credit Union on Main Street in Antigonish, where she would present it to the teller. 14. Ms. Johnson would lie to the Teller, providing a reason to cash the cheque, such that she needed to ‘wire’ the cash to the recipient. 15.

The bank would require Ms. Johnson to co-sign the cheque, which she did, and the bank would provide her with the cash. 16. Because Ms. Johnson was a trusted customer, the bank did not process the cheque cashing through any of her accounts to avoid charging her additional fees. 17. To keep the scheme alive, Ms. Johnson created various fake documents and related records to provide cover for the ongoing fraud, including re-assigning amounts to different General Ledger accounts when asked about a bad cheque. 18. Ms.

Johnson also took steps to conceal the fraud by frustrating the audit and verification efforts off METS, one of the principal sources for education funding. 19. For example, METS would perform annual audits to verify funds were being properly used. METS would request all files for a specific month were funds were claimed. A list of the needed files would be provided to Ms. Johnson in advance. On occasions where the files requested included a file that contained fraudulent cheques, Ms. Johnson would provide a reason to remove that file from the audit list. 20. In 2013 Ms.

Johnson left her NEO position to begin maternity leave. Her replacement noted irregularities within the NEO records, which she reported to management. Paqtnkek Mi’kmaw Nation alerted the police, and the fraud was discovered. 21. None of the stolen funds have been recovered. [ 5 ] The Defence did not dispute the facts as set forth by the Crown; however, Ms. McCarthy provided further context. The main thrust of Defence counsel’s remarks were that PMN’s banking policies and procedures were often not followed.

In the result, obtaining funds was not as strict a process as outlined by the Crown such that not as many deceptions were required by Ms. Johnson as suggested by the Crown. Upon hearing the Defence clarification, the Crown advised of their agreement. [ 6 ] By agreement the Court received two exhibits entered by the Crown: 1. January 12, 2018 JEIN print-out documenting Ms. Johnson’s prior criminal offences; and 2. A table summarizing the 76 fraudulent cheques in question. Position of the Parties Crown [ 7 ] The Crown initially sought a sentence of 12 months in jail followed by 18 months probation.

In a January 12, 2018 email, the Crown advised: Despite the problems with the defence reports, the Crown has found the information contained in both Gladue reports, and the limited information in the Therapy Report , informative and useful. We can advise that this information will impact on the Crown’s recommendation and that we intend to recommend a lesser sentence then that included in our written brief. The precise impact is not yet

determined as we are continuing to analyse all 3 reports and seek further information. [8] Today, the Prosecution advised that they were reducing their suggested jail time from 12 to 6 months and that they agreedwith a healing circle, which they say should take place upon Ms. Johnson’s release from jail. They ask for a restitution order for$111,664.26 payable to PMN. In support of its’ position, the Crown refers to these cases: 1. R. v. Elmadani, 2015 NSPC 65 2. R. v. Zinck, 2013 NSSC 338 3. R. v. Wilson, 2012 NSPC 40 4. R. v. Ford, 2012 NSSC 340 5. R. v. Naugler, 2011 NSPC 68 6. R. v. Wentzell, 2011 NSSC 200 7.

R. v. Lee, 2011 NSPC 81 8. R. v. MacDonald, 2010 NSPC 33 9. R. v. Cox-Kubas, 2005 NSPCP 1564131 (unreported) 10. R. v. Hill, 1997 Carswell 148 (NSSC) 11. R. v. Clarke, 2016 NSSC 101 12. R. v. Wilson, 2008 NSPC 68 13. R. v. Black, 2003 NSSC 99 14. R. v. Hurlburt, 2012 NSSC 291 15. R. v. Pottie, 2003 NSSC 263 16. R. v. Rizzetto, 2002 NSCA 142 17. R. v. Matheson, 2001 NSSC 78 18. R. v. Decoff , 2000 CarswellNS 479 (NSSC) Defence [9] The Defence submits that a conditional sentence order is an appropriate sentence.

The Defence suggests a range of 12 – 24months with a period of house arrest with ongoing rehabilitation in the community. The Defence agrees that a healing circle should beperformed. [10] In support of its’ position, the Defence refers to these cases: 1. R. v. Anderson-Davis, 2000 BCSC 42 2. R. v. Bunn, 2000 SCC 9 3. R. v. Gladue, [1999] 1 S.C.R. 4. R. v. J.H., (ONCA) 5. R. v. Kratky, (BCSC) 6. R. v. Pierce, (ONCA) 7. R. v. Pottie, 2003 NSSC 263 8. R. v. Proulx, 2000 SCC 5 9. R. v. Wheatley, (NSCA) 10. R. v. Wismayer, (ONCA) Healing Circle [11] Today the court had the benefit of the evidence of Cheryl Fritz. Ms.

Fritz has been with MLSN for six years. She is presentlycoordinator of court services. As part of her job duties she oversees the writing of Gladue reports. In this case she has read both Gladuereports.

[12] Ms. Fritz provided the Court with background concerning justice circles, sentencing circles and healing circles. Ms. Fritzexpressed the view that a healing circle would be appropriate for Ms. Johnson. She explained that a healing circle is designed to repairthe harm as a result of the incident. The goal of the healing circle would be to repair the harm to Ms. Johnson and the community. [13] A MLSN case worker would facilitate Ms. Johnson’s healing circle. Ms. Johnson’s input would help to determine who wouldattend the healing circle. According to Ms.

Fritz, the healing circle would include community and family members as well as thoseaggrieved at PMN. [14] Ms. Fritz testified that the healing circle could take place post incarceration or in the absence of a prison sentence. She statedMs. Johnson’s healing circle might include 5 – 10 people and consist of these four rounds: 1. The statement of facts; 2. Ms. Johnson telling her story; 3. The impact the crime has had on PMN; and 4. Recommendations from the healing circle participants. Gladue and Ipeelee Sentencing Principles [15] In R. v.

Denny, 2016 NSSC 76, Justice Rosinski had cause to consider Gladue and Ipeelee and his comments at paras. 62-70are helpful in providing relevant background in this case: 62 The court has available to it, and is grateful for, a Gladue Report prepared through the auspices of the Mi'kmaq Legal ServicesNetwork, and signed by Ms. Elizabeth Marshall. That report is particularly helpful in assessing how

section 718.2(

e) of the CriminalCode should be applied in this case. … 64 Since July 23, 2015, the subsection reads: All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 65 In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada set out the principles that shouldguide courts in relation to the application of the then extant s. 718.2(e). More recently, in R. v.

Ipeelee, 2012 SCC 13 (at paras. 56 - 87),the Supreme Court revisited and reformulated those principles, particularly as applicable in the context of aboriginal offenders who weresubject to long-term offender supervision orders. 66 The majority opinion made the following observations: ... s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal people inCanadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing... [It] directs sentencingjudges to pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different fromthose of non-aboriginal offenders... When sentencing an aboriginal offender, a judge must consider: (

a) the unique systemic orbackground factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

b) the types ofsentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particularaboriginal heritage or connection...

Judges may take judicial notice of the broad systemic and background factors affecting aboriginalpeople generally, but additional case specific information will have to come from counsel and from the presentence report... ... to be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools andhow that history continues to translate into lower educational attainment, lower incomes, higher unemployment, high rates of substanceabuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

These matters, on their own, and do not necessarilyjustify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the casespecific information presented by counsel... In current practice, it appears the case specific information is often brought before the courtby way of a Gladue Report, which is a form of presentence report tailored to the specific circumstances of aboriginal offenders.

Bringingsuch information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at the sentencing hearing foran aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(

e) of the Criminal Code." -- Paras. 59 - 60. ... Both sets of circumstances bear on the ultimatequestion of what is a fit and proper sentence. ... First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness... The second set of circumstances -- the types of sanctions which may be appropriate -- bears not on the degreeof culpability of the offender, but on the effectiveness of the sentence itself... s. 718.2(

e) does not create a race-based discount onsentencing. -- Paras. 72-75. 67 Furthermore, the court reiterated that it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link

between his circumstances and his offending.

Section 718.2 (

e) does not logically require such a connection: Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. That is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.(para. 83) 68 Gladue reports are, "a form of presentence report tailored to the specific circumstances of Aboriginal offenders" -- Ipeelee , para. 60 . For this reason, it may be helpful for such report writers to follow more closely the model adopted for presentence reports, with necessary modifications. 69 I agree with the comments of the court in R. v.

Lawson , 2012 BCCA 508 , at paras. 26-28 : ... Their purpose is to provide the court with individualized information about how intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance abuse have affected the aboriginal offender. They should also include information about realistic restorative or rehabilitative programs suitable to the particular aboriginal offender. ... Finally, as a form of presentence report, Gladue reports should be subject to the same general requirements of balance and objectivity as conventional presentence reports.

Thus, the writer should attempt to remain detached rather than advancing personal opinions. 70 Courts have also been consistent in confirming that it is the contents of a Gladue report that are critical, not its format, and that such content can come before the court outside of any formal Gladue report, or even if none is formally submitted -- by way of counsel's representations, agreed statement of facts, or in presentence reports, etc. [ 16 ] In Gladue , the Supreme Court explained the purposes of s. 718.2 (e), as applied to aboriginal offenders, and set out a "methodology" for sentencing aboriginal offenders.

Section 718.2 (

e) imposes a duty on the sentencing judge to give the remedial purpose of the provision real force in relation to aboriginal offenders. Accordingly, the sentencing judge must take into account the unique systemic and background factors that contributed to the commission of the offence. Further, the judge must consider the type of sentence that is appropriate given the offender's specific aboriginal heritage or connection to an aboriginal community. The

section is intended to provide the necessary flexibility and authority for sentencing judges to resort to a restorative model of justice in sentencing aboriginal offenders. Dawn Marie Johnson – Background [ 17 ] Ms. Johnson (dob April 24, 1976) is 41 years old. She is married and together she and her husband have six children ranging from a toddler to a university student. Her court ordered Gladue report was ultimately prepared by Shelly Martin, Gladue writer for the MLSN. I say “ultimately” because the report was originally assigned by the MLSN to Elizabeth Marshall; however, Ms.

Marshall and the MLSN subsequently severed ties. In any event, Ms. Marshall eventually completed her report and it was submitted to the Court by Defence counsel on January 10, 2018. In the result, I reviewed both Gladue reports as part of my consideration on sentence. Below I have excerpted relevant portions from each Gladue report, beginning with Ms. Martin’s report followed by Ms. Marshall’s report. Ms. Martin’s Gladue Report [ 18 ] Ms. Martin interviewed Ms. Johnson, her father and (former) step-mother. Ms.

Johnson’s background and life circumstances are described in the Gladue report as follows: Dawn was born in 1976 to her father, Michael Gerard Julian (“Gerard”) and her mother, Mary Bridget Julian (“Mali”), both of Paqtnkek First Nation. Gerard was the product of an affair between his mother, Ethel Lewis and a man of African-Canadian descent and was raised by Ethel and her husband, Charlie Lewis. Like many Mi’kmaq families, Charlie’s family fled Nova Scotia and went to Boston when he was young to avoid subjecting their children to the horrors of the Indian Residential School in Shubenacadie.

Ethel was not so fortunate and attended the school before returning to the Paqtnkek to raise a family. *** Even in her early years, substance abuse featured heavily in Dawn’s life. Mali and her parents were alcoholics their entire lives. Dawn notes that following Mali’s death two years ago, a backhoe had to be brought onto the property to safely clear away the bottle debris that had accumulated in the yard from years of alcohol abuse. Initially, Mali took Dawn home to live with her and her parents. However, this arrangement did not last long.

Alcoholism and neglect in Mali’s household brought Gerard to unilaterally remove Dawn from her mother’s care as a baby. Gerard made a plan and came to Mali’s home in the middle of the night, took Dawn and moved her to his parent’s home. Dawn then began living with Ethel and Charlie Lewis in their home, with their extended family of children and grandchildren. *** As a teenager, Dawn became angry and rebellious. Like her father, she too found school to be a place where doubts about her identity festered. Even relationships with teachers she felt were tainted by racism. School was not a refuge for Dawn in any way.

*** The traumas haunted Dawn, who began using marijuana to cope with the anxiety, depression and nightmares she was experiencing. Unable to cope and desperate for help, Dawn attempted suicide later in high school by taking a bottle of pills. Luckily, she was able to contact an Aunt who sought emergency medical care for her immediately. After a week in intensive care, Dawn was released back to her father’s care in Paqtnkek. Gerard provided here with a self help book, but was not offered any further mental health counselling.

As Dawn left high school, she was accepted to University of New Brunswick, where is enrolled in the BSc program. She soon found out that she was pregnant with the first of her six children Raheem, and despite trying to continue her education after his birth at Dalhousie University, she eventually returned to Paqtnkek to live with Raheem and eventually began working for the Band as a Native Employment Officer. By this time, Gerard was Chief. Dawn began a relationship with another man for a time, lived with Raheem in the limited housing that was available. “I lived in a trailer that was rat-infested.

It used to get so cold in there that water in the fish tank would freeze”. This relationship came to a difficult end with Dawn discovered her boyfriend and sister in bed together. He left Dawn and began a relationship with her sister, and while her sister and have since healed aspects of their relationship, Dawn found that the trust between them broken and is still painful to bear. At this time, Dawn reconnected with an old friend from high school, George Desmond and began dating him casually. Eventually the relationship turned serious.

By this point, Dawn was a high-functioning addict having moved from marijuana to cocaine and sometime crack, using mainly on weekends when Raheem was not with her. [ 19 ] With respect to the background leading to the offences, Ms. Martin’s Gladue report offers as follows: In 2010, when she began taking money, Dawn was a high-functioning addict, a mother to four children, doing her very best to manage their needs in the midst of her own unresolved traumas and addiction.

While she is reputed to be an excellent mother whose pride and hope in life in her children, she admits to trying but failing to come to terms with her addiction during this time. George’s work as a Steam and Pipe fitter brought in good income to the family and Dawn reports George was unaware of her thefts and only discovered them upon her arrest. If George questioned the case she seemed to have on hand, Dawn would explain it away to him by saying that she had written a proposal for a program and got a portion of the grant money awarded. This was the way in which she concealed her theft from those closest to her.

She continue to work, but her addiction continued, fueled and financed by her ability to compartmentalize her life and disassociate some parts of her life from others. This way, she able to manipulate the control systems within the band administration and conceal the truth from her husband, the person closest to her. When Dawn went off on maternity leave after her son Zion’s birth in 2013, her thefts were discovered. Elections are held every two years in Paqtnkek and in that year a new Chief was elected and ordered a forensic audit, which showed in excess of $375,000.00 missing from the Band’s finances.

After the investigation, Dawn was arrested and has pled guilty to the offences before the court for sentencing. “I felt ashamed, embarrassed. After the arrest I didn’t really leave my house for a year”. But Dawn also felt something else: relief. Dawn had been in crisis for years and this was the catalyst that made her examine her life honestly and face the traumas that fueled her self-destruction. [ 20 ] Ms. Martin continues in her report to discuss Ms. Johnson’s “watershed” since her arrest.

She completed a B.A. in Mi’kmaw studies and has been accepted into the Bachelor of Social Work program at Dalhousie University. Today, the court learned that Ms. Johnson is now taking social work courses online at Dalhousie. Ms. Johnson has recovered from her addictions and is quoted as at pp. 17 – 18 of the Gladue Report: “I’ve lived like this for years. I’m 41. It’s only been since my arrest that I’ve started to understand what happened to me.

I’m not going to fix it overnight, I’m in a lot of deep, deep therapy…My whole life I’ve been angry, I used to put the blame on him (my father) and say that I am who I am because of him, that my life is a direct reflection of him and that everything I do is learned behavior. I’m completely like him and forever, I always blamed him.

But as I went to university and as I went through my Mi’kmaw studies, I understand better where he came from and I understand intergenerational trauma and I have stopped blaming him and just tried to start working with my issues with my therapist on my own and trying to break the cycle with my children.” [ 21 ] The Martin Gladue report concludes by noting these Gladue factors: • Dawn is an Aboriginal woman • She has experienced in trans-generational trauma • She has suffered extreme physical, emotion and sexual abuse, neglect • Racism • Alienation • Loss of identity, culture, and ancestral knowledge • Isolation • Family breakdown

• Systemic, Cultural and Environmental Racism Ms. Marshall’s Gladue Report [ 22 ] Before setting forth the helpful passages from Ms. Marshall’s Gladue report, I wish to acknowledge and adopt the Crown’s submission regarding pages 1 – 7: Ms. Marshall’s polemics against the ‘political elite’ and the MSLN, at pages 1 – 7, of her Gladue Report, are irrelevant , unhelpful, have no place in a Gladue Report, and should not be considered at the sentencing. It is true Ms. Desmond’s [Johnson’s] crimes were committed while she occupied a position of trust with the Band. It is also true that when Ms.

Desmond [Johnson] committed these offences her father was Chief and many of her family members worked for the Band. However, it is not clear what relevance, if any, political favouritism, patronage, etc. have to the present sentencing? Likewise, it is improper for Ms. Marshall to hijack the report as a means to air grievances she may have with MLSN. Pages 1 – 7 of the report should be struck. [ 23 ] I also wish to correct an error at p. 8 of Ms. Marshall’s report where she states Ms. Johnson was “found guilty” of the charges. Once again, the record reflects that Ms.

Johnson plead guilty to the offences on August 24, 2017. [ 24 ] Finally, before quoting from the most recent Gladue report, I point out that the author throughout refers to Ms. Johnson by her married surname of Desmond. [ 25 ] Ms. Johnson is a status member of PMN. At pages 9 – 19 of her report, Ms. Marshall provides a comprehensive history of PMN. She then delves into Ms. Johnson’s family and life circumstances, expanding on the themes developed in Ms. Marshall’s report. At p. 26, the author recounts Ms. Johnson’s difficult childhood: Ms.

Desmond reported that during her childhood she lived with much violence and much drinking, her grandparents and their friends drank frequently, her grandparents also sold alcohol, as “bootleggers” in the community. At times the adults would fight, she recalled how the kids would stand around and watch the adults fight. As a teenager, her father started to sell marijuana out of their house. She said, “my dad was a drug dealer, everything was in the open, they hid nothing”. [ 26 ] The report goes on to document Ms. Johnson’s formative years as being wrought with violence and abuse.

In terms of her current status, the report outlines the following at pages 33 – 34: In two-thousand-and twelve, Ms. Desmond went on maternity leave from her job as a Native Employment Officer at Paqtnke’k First Nation. In two-thousand-and-thirteen, she had been employed for eleven years by the Paqtnke’k First Nation as the Native Employment Officer, when she was charged with the current matters before the court. Prior to being charged, Ms. Desmond had requested an educational leave from her employment to for full-time study to complete her university degree.

During this period of leave, she was charged with the current matters before the court. In October two-thousand-and-sixteen, she began working in adult care for the band and started to take care of her elderly uncle, and although she is no longer remunerated for adult care by the band she continues to provide daily care for her uncle at his home at Paq’tnkek First Nation. *** Ms. Desmond deeply regrets being involved in this matter before the court. She accepts full responsibility and would like the opportunity to express her regrets to the court and to the victims, her family and her community.

It has been four years since she was first charged with the incident, and since then Ms. Desmond has made efforts to change her life style, and to become drug and alcohol free. The marriage of Ms. Desmond and Mr. George Desmond did not survive the stress of the last four years. During the last months they have legally separated. Ms. Desmond continues to reside at her home with her children at Paq’tnkek First Nation. [ 27 ] Ms. Marshall concludes her report at pages 37 – 38 by outlining these Gladue factors: 1. That Ms. Johnson is a female of First nations Mi’kmaq decent. 2.

That there is evidence of community support and culturally appropriate measures available to address the issues and circumstances relevant to the barriers and goals experienced by Ms. Johnson that may have kept her from experiencing a stable, drug free life. 3. That Ms. Johnson has demonstrated a willingness to address the underlying factors that caused the incident. 4. That Ms. Johnson has personally experienced the adverse impact of many factors continuing to plague aboriginal communities since colonization, including: a. Substance abuse; personally, in the immediate family, and among peers. b.

Family deterioration and separation. c. Tragedy, illness and loss within the family, community and peers. d. Lack of education, resources and general family distrust of church and state. e. Low income and unstable employment due to substance abuse, lack of education and resources. f. Loss of identity, culture and ancestral knowledge. Psychologist’s Therapy Report

[28] The therapy report submitted by the Defence is authored by Carolyn Scott, M.A., registered psychologist. Upon receipt of thereport, the Crown submitted as follows: Despite stating that Ms. Desmond was not assessed for any trauma related symptoms, the majority of Ms. Scott’s report discusses theCriteria for PTSD, and provides an opinion that it is ‘likely’ Ms. Desmond would meet the diagnostic criteria? The report does notcontain any basis upon which to conclude that Ms. Scott has the qualifications to offer such an opinion. At page 3 of the report Ms. Scottstates her understanding that Ms.

Desmond has been working with a “trauma therapist”, which suggests this is not Ms. Scott’s expertise. Likewise, the report provided no evidentiary foundation to support the opinions expressed, in addition to noting that no specificassessment has been performed. These opinions should also be struck. The Crown relies of the Court’s decision in R. v.

Boutilier, 2017NSSC 308, attached, in this regard, especially paragraphs 16 -23. [29] In my decision in Boutilier, I decided that certain portions of an Impact of Race and Cultural Assessment Report (“IRCAReport”) authored by social worker, Robert Wright, had to be redacted and excluded from consideration. At paras. 21 and 22, I stated: I disregarded the redacted portions of the IRCA Report as Mr. Wright strayed beyond his qualifications and failed to meet the tests set bythe Supreme Court of Canada in R. v. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 and R. v. Abbey, 2017ONCA 640.

In particular, the problems with these portions of the IRCA Report are as follows: Mr. Wright, the author of the Cultural Assessment, is not a medical doctor, much less a physician with advanced training as a neurologistor neuropsychologist; No MRI, CAT, DTI or other brain scan was performed and analyzed by a specialist which revealed lesions, inactive areas, or otherdamage to those areas of the brain, such as the frontal lobes, which control behavior; No medical opinion has been obtained which provides the causal link between damage to specific areas of Mr.

Boutilier’s brain, if suchdamage exists, and his criminal offending; and, This medical opinion was not ordered by the court. [30] With the above in mind, I must similarly here strike the psychologist Ms. Scott’s references to Post Traumatic Stress Disorderin her Therapy Report. In the result, much of the Therapy Report has been disregarded. Nevertheless, I have no difficulty with Ms.Scott’s

summary and recommendations, which read as follows: Ms. Desmond struggles with emotional dysregulation and interpersonal difficulties common to individuals with significant traumahistory. In addition, Ms. Desmond has developed a substance dependence disorder. It is positive that she has engaged in treatments andinterventions to assist her to develop effective coping strategies and to address addiction and trauma. Ms. Desmond is encouraged to continue with treatment for the above noted disorders and to participate in recovery community meetingssuch as NA or CA.

Purpose of Principles of Sentencing [31] The fundamental purpose of sentence is to protect society and contribute, along with crime prevention initiatives, to respect ofthe law and the maintenance of a just, peaceful and safe society. The objectives of sentencing are set forth in s. 718 of Criminal Code. These repeated principles are deterrence, denunciation, separation of the offender from society, rehabilitation, reparation to the victimsand promotion of a sense of responsibility for harm to victims. [32]

Section 718.2(

a) requires me to consider any aggravating factors or mitigating circumstances in my determination of the natureand extent at sentence. As the Supreme Court of Canada noted in R. v. Pham, 2013 SCC 15, at para. 8: In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform thesentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust,2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 92.Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigatingcircumstances (s. 718.2(

a) of the Criminal Code), as well as objective and subjective factors related to the offender's personalcircumstances. Aggravating Factors a. Ms. Johnson was in a position of trust when she committed the offences over a protracted period of time; and b. She has a criminal record, albeit, Exhibit 1 confirms it is limited, including dated convictions from 1995 to 2003, and a subsequenttheft under conviction in 2014. Mitigating Circumstances a. While relatively late in the process (over 3 years since the matter was first in Court), Ms. Johnson pled guilty; and b. Ms. Johnson expresses remorse for her actions.

Guiding Law on Sentence, Analysis and Disposition [33] The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 43 sets forth

sentencing principles which I as sentencing judge must consider: The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a "fit" sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relativeimportance [page233] of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentencesfor similar offences.

The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating ormitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and inthe case law. [34] The Indictment confirms the offence period to be January 1, 2010 to December 31, 2013. Over the course of these four years,Ms. Johnson requisitioned and cashed fraudulent cheques, ultimately stealing $111,664.26 from PMN. [35] This fraud involved the native employment officer repeatedly abusing her position of trust.

She actively attempted to concealher deceit through the creation of fraudulent documents and lying to auditors. [36] In the case R. v. Proulx, [2000] 2 SCR 61, the Supreme Court of Canada discussed the imposition of conditional sentenceorders. The following principles emerge from this case: 1. In general, a conditional sentence may achieve the restoration objectives of

section 718(d) – (

f) of the Criminal Code better thanincarceration. A conditional sentence may provide sufficient denunciation and deterrence even when restorative objectives are lessimportant depending in the nature of the conditions imposed, the duration of the sentence and the circumstances of the offender and thecommunity. 2. A conditional sentence can be imposed even here there are aggravating circumstances, although the need for denunciation anddeterrence will increase in such cases. 3.

Probation is primarily a rehabilitative sentencing tool, whereas conditional sentences have putative and rehabilitative aspects. [37] In R. v. Pierce (1997), (ON CA), 114 CCC (3d) 23 (ONCA), the Ontario Court of Appeal discussed theimposition of a conditional sentence order in the context of crimes of dishonesty, including those where there was a breach of trust. [38] In R. v. J.H., (ONCA), the Ontario Court of Appeal indicated that a conditional sentence is neither a reward,nor an exercise of clemency.

It is a sentence of imprisonment to be served in the community under appropriate conditions. [39] The Ontario Court of Appeal also commented in R. v. Wismayer (1997), 115 CCC 93d) 18 (ONCA) that when the court isconsidering the imposition of a conditional sentence order, the court can consider the fact that the fact that the conditional sentencewould not be subject to parole and the reduction of a custodial sentence that would accompany a custodial sentence. [40] In R. v. Wheatley, 1997 NSCA 94, our Court of Appeal stated at paragraph 22: A conditional sentence is punitive.

It is a sentence of imprisonment to be served in the community for the full term with conditions asset by a sentencing judge which significantly restrict the liberty of the offender. In appropriate circumstances it is to be imposed as analternative to the other sentencing procedures, but only if the court is satisfied that serving a sentence in the community will not endangerthe safety of the community. With respect to those who may hold a contrary opinion, it should not be considered a “soft” penalty. [41] In the case R. v.

Pottie, 2013 NSSC 263, Justice Wright held at para. 14: The court must therefore decide whether the need to emphasize both denunciation and deterrence is so pressing that a period ofincarceration in a penal institution is the only suitable way in which to express society’s condemnation of Mr. Pottie’s conduct. It wasrecognized by the Supreme Court of Canada in Proulx that a conditional sentence can provide significant denunciation and deterrence,particularly when onerous conditions are imposed.

I am also mindful of the observation of the Nova Scotia Court of Appeal in R. v.Parker (1997) (NS CA), 159 N.S.R. (2d) 166, that the thrust of the 1996 legislation initiative introducing conditionalsentences to our criminal law is clearly to encourage the courts to reduce the reliance upon incarceration of offenders where appropriate. This is reflected in sections 718.2(

d) and (

e) of the Criminal Code which the court must consider in passing sentence. They read asfollows: (

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… [42] I have considered all of the factors present in this case along with the sentencing principles from the jurisprudence. In my viewMs. Johnson’s situation does not warrant jail time. Indeed, I am mindful of the Gladue factors and the sentiments of the authors of thereports, and persuaded that a conditional sentence represents what is reasonable in these circumstances.

I have bourne in mind a numberof the Defence authorities and, in my view, custodial time would absolutely defeat Ms. Johnson’s current road to recovery. She would beirreparably set back in her studies in social work at Dalhousie and her six children would suffer with the potential for the detrimentalcycle to continue. [43] In all of the circumstances I hereby impose a conditional sentence order of 18 months followed by a 12 month period ofprobation. The terms of the conditional sentence order are as follows:

1. Keep the peace and be of good behavior. 2. Appear before the court when required to do so by the Court. 3. Report to a supervisor at 155 Main Street, Antigonish, on or before January 17, 2018 and after that as directed. 4. Remain in the Province of Nova Scotia unless written permission is obtained in advance from your supervisor. 5. Notify your supervisor at least 24 hours in advance of any change of name, address, employment or occupation. 6. Report for mental health assessment and counselling as directed by your supervisor. 7.

Report for substance abuse assessment and counselling as directed by your supervisor. 8. Attend, participate in and co-operate with any assessment, counselling or program with terms and conditions as directed by your supervisor, you must report any missed counselling appointments to your supervisor immediately. 9. Sign immediately all consents to release of information required by your supervisor required to assist in rehabilitative services. 10.

House Arrest: Be confined in your house or apartment / to your property at 94 Petow Loop Extension or such other residence as approved in writing by your supervisor, in advance of any move, at all times starting immediately and ending six months from January 15, 2018, with the following exceptions (when travelling to and from any of the exceptions to the house arrest provisions, you are to travel by the most direct route from your residence, no stop offs, detours or side trips): a.

When attending a regularly scheduled education program or at a school or educational activity supervised by a staff member, with the prior written approval of your supervisor; b. When dealing with a medical emergency or medical or dental appointment involving you or a member of your household or Francis Johnson; yiou must notify your supervisor within 24 hours of any such emergency treatment; c. When attending a scheduled appointment with your lawyer or a supervisor; d. When attending court at a scheduled appearance or under subpoena; e.

When attending a counselling appointment or a treatment program at the prior written direction of or with the prior written permission of your supervisor; f. When attending a regularly scheduled religious service; g. When attending to your personal needs, for not more than four house per week, approved in advance by your sentence supervisor, in writing; h. Any other valid exception, approved in writing, in advance by your supervisor, setting out in writing the precise times when and places where you will be outside your residence; and i.

Participate and cooperate with MLSN in a Healing Circle in the Paq’tnkek community. 11. Curfew: Remain in your residence at 94 Petow Loop Extension or such other residence as approved in writing, in advance of any move, by your supervisor, from 10 p.m. until 6 a.m. the following day, seven days a week beginning on the expiry of your house arrest for a further six months. 12. Prove compliance with the house arrest/curfew condition by presenting yourself immediately at the entrance of your residence should your supervisor or a peace officer attend there to check compliance. 13.

You are to carry on your person at all times when outside your residence, a copy of your Conditional Sentence Order and a copy of any permission slips from your supervisor. The terms of the probation order are as follows: 1. Keep the peace and be of good behavior; 2. Appear before the court when required to do so by the court; 3. Notify the court or your probation officer, in advance, of any change of name, address, employment or occupation. 4.

Report to a probation officer at 155 Main Street, Suite 102, Antigonish no later than ten days after the date of expiration of your sentence of imprisonment and after that as directed by your probation officer. 5. Attend for mental health assessment and counselling as directed by your probation officer; 6. Attend for substance abuse assessment and counselling as directed by your probation officer. 7. Attend for any other assessment, counselling or programming directed by your probation officer;

8. Participate in and co-operate with any assessment, counselling or program directed by the probation officer, according to the terms as directed by your probation officer; you must immediately report to your probation officer any missed assessment or counselling appointments. [ 44 ] The court hereby orders a healing circle as part of the sentencing. The precise mechanics of the healing circle shall be addressed by the MLSN and Ms. Johnson. It is anticipated the healing circle will take place within the new few months. The Court encourages ongoing counselling for trauma and addiction for Ms. Johnson.

There shall be a stand alone restitution order for $2,000 payable within 10 days and additional amounts up to the remaining balance payable to PMN over time. There shall be a victim fine surcharge of $200 for each offence for a total of $400 to be paid within one year of today’s date. Chipman, J.