R. v. Zinck, 2013 NSSC 338

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Zinck, 2013 NSSC 338 Date: 20131009 Docket: CRH 397888 Registry: Halifax Between: Her Majesty the Queen v. Trevor John Zinck SENTENCING DECISION Judge: The Honourable Justice Glen G. McDougall Heard: October 1, 2013, in Halifax, Nova Scotia Oral Decision: October 9, 2013 Written Decision: October 21, 2013 Counsel: Andrew Macdonald, on behalf of the Provincial Crown Mark Heerema, on behalf of the Provincial Crown Lyle Howe, on behalf of the Offender, Trevor John Zinck By the Court :

[1] Trevor John Zinck was charged on a three-count indictment that he: between the 30th day of June, 2007 and the 30th day of July, 2009 at, or near Halifax, or elsewhere in the Province of Nova Scotia did bydeceit, falsehood, or other fraudulent means unlawfully defraud Her Majesty the Queen in the right of the Province of Nova Scotia bysubmitting false and/or improper expense claims to the Speaker of the Nova Scotia House of Assembly, contrary to Section 380(1)(

a) ofthe Criminal Code; AND FURTHERMORE, between the 30th day of June, 2007 and the 30th day of July, 2009 at, or near Halifax, or elsewhere in theProvince of Nova Scotia, did commit theft, by fraudulently and without colour of right taking the money of Her Majesty the Queen in theright of the Province of Nova Scotia and converting it to his own personal use with intent to deprive Her Majesty the Queen in the rightof the Province of Nova Scotia of said money, contrary to

Section 334(

a) of the Criminal Code; AND FURTHERMORE, between the 30th day of June, 2007 and the 30th day of July, 2009 at, or near Halifax, or elsewhere in theProvince of Nova Scotia did, being an Official, to wit a Member of the Legislative Assembly for the Province of Nova Scotia, commitfraud and/or a breach of trust in connection with the duties of his office by submitting false and/or improper expense claims to theSpeaker of the Nova Scotia House of Assembly, contrary to

Section 122 of the Criminal Code. [2] After the close of the Crown’s case, which took four full days, the accused changed his plea to guilty on counts one and twoof the indictment. Count two of the indictment is subsumed in the other two counts and as a result will be conditionally stayed based onthe Kienapple principle, so-called (R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729). The Court will therefore proceed tosentence Mr. Zinck on the two counts for which he has pleaded guilty.

Summary of the Facts: [3] The facts that support conviction on counts one and three by way of guilty pleas are for the most

part contained in an“Agreed Statement of Facts” that was filed with the Court and marked Exhibit 11. [4] The Crown is not relying on the allegations contained in paras 4(

a) and 4(

g) of this agreement. In addition, it was recognizedthat Mr. Zinck did use a portion of the $1,200.00 reimbursement he received from the Province of Nova Scotia to register himself andthree others in a fund-raising golf tournament in support of Lake City Woodworker – a charitable, not-for-profit organization that offersassistance for persons recovering from mental health problems. [5] The Crown has disputed some of the factual assertions made in the sentencing brief that was filed by defence counsel onbehalf of Mr. Zinck. [6] Defence counsel conceded a number of contentious points raised by Crown counsel.

Where there remained disagreement,defence counsel suggested that it be the subject of argument leaving it to the Court to resolve any conflicting

interpretations of theevidence identified by counsel. [7] The defence chose not to call any evidence in support of its contention that Mr. Zinck’s conduct throughout was more akin torecklessness than wilful intent. [8] Nonetheless, Mr. Zinck maintains that he was following the rules for submitting expense claims as set down by theLegislature’s Internal Economy Board. He attributes some of the blame for making inappropriate claims for reimbursement to the wayhe maintained his office along with the lack of oversight and direction from those whose job it was to review and approve his monthlyexpense claims. [9] The defence included the following in the sentencing brief and I quote:

The defence is of the view that there is no evidence that suggests Mr. Zinck intended to deprive the intended recipients of the funds thatthey did not receive. [10] As mentioned previously, the defence did concede some of the points raised by Crown counsel during their preliminarysubmissions suggesting that some of the assertions made by the defence lacked an evidentiary foundation. These concessions include thefollowing: Page 12, para 9, sub-para 6, first full sentence that read: “At the time of these offences Mr. Zinck was undergoing great stress.” Page 12, para. 9, sub-para. 7 it is deleted in its entirety.

Formerly it stated: “It is the Defences [sic] submission that, Mr. Zinck truly felt that at the time he had to help everyone that came his way. He started tofall behind and was under extreme stress from the demands of his role as a [sic] MLA.” Page 13, para. 9, sub-para. 12 was deleted in its entirety. It formerly read: Mr. Zinck did not have a self-interested motive behind the offences. Page 13, para. 9, sub-para. 13, the second sentence was redacted. It formerly read: Mr.

Zinck believed that he was doing his job to the best of his ability given the high demand to support and please his constituents andthe various organizations in his riding. Page 15, para. 10, under the sub-heading “Mitigating Factors”, item numbered two was removed. It read: Mr. Zinck co-operated with the police and the Auditor General in their investigation. On page 3, first paragraph under the heading “Culpability - Mental Intent” the defence agreed to delete the words “[R]ather, Mr.

Zinck’sdisorganized office.” [11] The defence disagreed with any of the other concerns raised by Crown counsel instead suggesting it should be left to the Courtto decide what has or has not been established by the evidence heard during the course of the trial. The defence chose not to call anywitnesses including Mr. Zinck himself to address the other contentious issues raised by the Crown in their submissions.

This is a rightthe defence has but without sufficient evidence to establish, on a balance of probabilities, the fact which is being asserted, the Courtcannot simply rely on it in reaching its decision on the appropriate sentence to hand down. [12] If the Crown was asking the Court to rely on a fact in dispute the burden they must overcome is proof beyond a reasonabledoubt. [Reference to the Supreme Court of Canada case of R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368] [13] I have heard the evidence of the nine witnesses called by the Crown.

[ 14 ] It is clear to me that Mr. Zinck knew the rules respecting reimbursement for both travel and constituency expenses. According to Ms. Jocelyn Scallion, the former Director of Administration in the Office of the Speaker, all newly elected MLA ’ s (including Mr.

Zinck who was first elected to the Nova Scotia Legislature in 2006 and then re-elected in 2009) would have gone through an orientation session to have particulars of salary, benefits and eligible expenses explained. [ 15 ] Over and above the $1,000.00 per month allowance which did not require supporting receipts, each MLA was entitled to reimbursement of up to a maximum of $5,000.00 per month. This amount was later reduced to $4,198.00 by the Internal Economy Board.

In order to claim the maximum amount per month an MLA was required to provide an invoice or receipt evidencing payment of the expense. [ 16 ] Each MLA was given a copy of an “ Orientation Manual ” which provided all the information one might need to better understand the various allowances and expenses as well as salary and other benefits available to a Member of the Provincial Legislature.

Furthermore, staff responsible for receiving and processing expense claims were readily available to answer any questions an individual MLA might have. [ 17 ] Also of note is the certification included just above the line where the claimant signed and dated his or her “ MLA Expense Claim ” form. It reads: I hereby certify that the amounts included in this claim are for Actual and Reasonable Expenses incurred and are supported with proper receipts. [ 18 ] The words “ Actual ” , “ Reasonable ” and “ Expenses ” are capitalized. [ 19 ] Crown counsel also pointed out the string of e-mail communications between Mr.

Zinck and Robyne Gorman, a representative of the Dartmouth Boys ’ and Girls ’ Club who had solicited funding from Mr. Zinck to help pay for the purchase of a new bus. Mr. Zinck had agreed to pay a total of $5,000.00 by way of five separate instalments of $1,000.00 to have his name displayed on the side of the vehicle. It is clear from these e-mails and the non-negotiable duplicate copy of each of the five cheques that were submitted for reimbursement to the office of the Speaker that Mr. Zinck was fully aware of what he was doing.

The individual cheques contained hand-written entries that indicated 1 st payment, 2 nd payment and so on. The 5 th payment also stated that it was the final payment. There can be little doubt that Mr. Zinck knew full well that he was claiming reimbursement for an expense he had not incurred. [ 20 ] Then on March 18, 2009 Ms. Gorman sent an e-mail to Mr. Zinck stating: Hey Trevor, I hate to bother you, but I was just wondering what was up with the $5,000.00 for our bus. I know you said you had to give us $1,000 at a time. Just wondering if this is still a go.

Thanks, Robyne [ 21 ] This e-mail was sent a little less than four months after Mr. Zinck submitted a claim and received reimbursement for the last of the five, one thousand dollar instalments. [ 22 ] I could go on to state the facts surrounding Mr. Zinck ’ s reimbursement of the cost for not sponsoring James Moore ’ s son in the Atlantic Spring League Hockey program or his failure to pay the full $1,200.00 he was reimbursed for the Lake City Woodworkers golf tournament or the $2,000.00 to help fund the Midnight Basketball Program sponsored by the Dartmouth District Nine Citizens Association.

There is no need as further particulars of these illegal acts are included in the “ Agreed Statement of Facts ” which was entered (with the amendments previously mentioned as Exhibit 11). [ 23 ] In all, the evidence presented at trial which includes the aforementioned “ Agreed Statement of Facts ” establishes that Mr. Zinck fraudulently received reimbursement of $8,400.00 to which he was not entitled.

[ 24 ] There is no evidence that Mr. Zinck ever intended to eventually pay these funds to the organizations and the one individual he used as unwitting props to obtain the money in the first place. [ 25 ] On the contrary, the evidence establishes just the opposite. Despite being reminded of his systematic method of receiving payments for expenses he did not incur, Mr. Zinck did nothing. There can be only one conclusion – he knew he had done wrong yet he did nothing to correct it. Mr.

Zinck now asks this Court to interpret this as recklessness on his part. [ 26 ] I am not, in the least, persuaded that this course of conduct was anything but wilful intent.

It was a blatant attempt on his part to defraud the taxpayers of this Province of their hard-earned tax dollars. [ 27 ] It was also done at the expense of several very well-meaning and caring organizations that help people who are in need – people who are both vulnerable and at risk – people who find themselves at the margins of society not because of anything they might have done or have failed to do but more likely because they just cannot seem to catch a break. [ 28 ] Mr.

Zinck was prepared, despite his own suggestions to the contrary, to allow those people to continue their struggle while professing to be sympathetic to their plight. No doubt Mr. Zinck has done many kind deeds during the time he represented the people of Dartmouth North but that does not justify the conduct that resulted in his conviction by way of guilty pleas to two of the three offences for which he was charged. He must now be held accountable for his criminal behaviour.

Criminal Code Provisions on Sentencing: [ 29 ] The Criminal Code has a number of provisions that deal with the purpose and principles of sentencing. They are found in sections 718 to 718.3 which reads as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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, ... (

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, with particular attention to the circumstances of aboriginal offenders. [ 30 ]

Section 718.3 deals with punishment generally and need not be recited here other than to say that the Court has considered the general intent of this particular

section in reaching its decision today. Material Filed with the Court: [ 31 ] The Court has had the benefit of both written and oral submissions from Crown and defence counsel. Their respective written arguments which were supplemented by oral arguments included reference to a number of previously decided cases. Some are from our own jurisdiction. [ 32 ] Unfortunately Mr. Zinck is not the first Nova Scotia MLA to seize an opportunity to add to the existing salary and benefits package provided to elected representatives.

I hope I do not sound too naive when I say that perhaps he will be the last. [ 33 ] I do not intend to comment on every case referred to me by counsel other than to say that I have reviewed and considered them in arriving at my decision. [ 34 ] I have also taken into consideration the letter of support for Mr. Zinck authored by one of his former constituents. It is proof that Mr. Zinck has helped people in the past. For that he is to be commended. [ 35 ] A Pre-Sentence Report ( “ PSR ” ) was also filed with the Court.

Thank-you to Probation Officer, Dan Ray, who authored this report. [ 36 ] There are several passages in the PSR in which it seems that Mr. Zinck is trying to minimize his culpability or moral blameworthiness. The author states: With regards to the current matters before the Court, Mr. Zinck did accept responsibility for his involvement. He indicated the monies he has pled guilty to defrauding came from a constituency office budget, as well as a”non-receiptable” fund of $1,000.00. [ 37 ] Crown counsel rightly pointed out that Mr.

Zinck was not accused of defrauding taxpayers for any monies associated with the $1,000.00 monthly allocation intended to provide for small miscellaneous expenditures and for which receipts are not required.

[ 38 ] The author of the PSR also attributed two other comments to Mr. Zinck. He said: Mr. Zinck stated although he did acknowledge submitting claims for money fraudulently, he fully intended to make good on those original claims at some point. [ 39 ] I have already stated my views on this rather self-serving attempt at minimizing the overall effect of what occurred. [ 40 ] In another entry, the PSR reads: Mr.

Zinck also offered some mitigating suggestions that the rules surrounding the distribution of these monies were rather loose at the time, and the stricter controls in place today around these expenses did not exist. [ 41 ] The way I interpret this is that if the more recent stricter rules were in place between the 30 th day of June, 2007 and the 30 th day of July, 2009 then Mr. Zinck might not have tried to get awa with expense fraud. [ 42 ] Any system of expense reimbursement has to be premised primarily on trust.

No matter how stringent or restrictive the rules might be if an individual is disposed to try and defraud the system then he or she can always find ways to try to circumvent the rules. To take advantage of a less rigorous system does not make it any less blameworthy. A dishonest act by proof of deceit, falsehood or other fraudulent means coupled with the subjective knowledge that the prohibited act could cause the deprivation of another is fraud. It is a criminal act no matter how much Mr. Zinck might try to downplay his real intentions. [ 43 ] Another rather unsettling aspect of Mr.

Zinck ’ s PSR is his firm belief that he does not have either a drinking or a gambling problem. The fact that he made a number of late night withdrawals from both his personal and his constituency Credit Union accounts at the local casino and at some area taverns and bars might suggest otherwise. Given Mr. Zinck ’ s assertions that he does not suffer from alcohol or gambling addictions an order for counselling might not do him much good.

Review of the Cases: [ 44 ] The defence has cited a number of cases in which either a conditional discharge or a conditional sentence was ordered. [ 45 ] Crown counsel have recommended a period of four to six months incarceration followed by a period of probation. In doing so they have distinguished the various cases put forward by defence counsel in support of either a conditional discharge or a conditional sentence of house arrest.

Before deciding on the appropriateness of a sentence I propose, first, to look at the aggravating and the mitigating circumstances relating to the offences and the offender. [ 46 ] I will begin by referring to

section 380.1(1) (

a) and (

d) of the Criminal Code which state: Sentencing — aggravating circumstances 380.1

(1) Without limiting the generality of

section 718.2, where a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

... (

d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community; [ 47 ] While the magnitude of the fraud is not that significant in this case, it is abundantly clear that there was a significant amount of planning involved over a considerable duration of time. In addition, the offender took advantage of his office in perpetrating the various incidents of fraud that not only deprived the taxpayers of their money but also denied the potential beneficiaries of the use of these funds. Instead, the money was selfishly used by Mr. Zinck for personal benefit.

In effect it was easy money; money that had not been earned, money that had not been spent to cover a legitimate reimbursable expense. It was money defrauded from the Province of Nova Scotia ’ s taxpayers to satisfy Mr. Zinck ’ s feelings of greed. [ 48 ] In terms of mitigating factors, Mr. Zinck does not have a prior criminal record.

Any money he defrauded from the Government of Nova Scotia will be deducted, if it has not already, from a transition allowance he is entitled to receive as a result of holding office as an MLA for approximately seven years until submitting his resignation on the day before the Legislature was about to be called into session to debate a resolution that would have, no doubt, led to his ouster from the Legislature. This precipitous move also ensured Mr. Zinck ’ s entitlement to the transition allowance estimated to be $51,000.00. (Less the deductions to cover the amounts he improperly claimed for expenses.) Mr.

Zinck is also entitled to a return of any pension contributions he made during his tenure as MLA. [ 49 ] Despite defence counsel ’ s suggestion that the guilty pleas entered after the Crown completed its case should be considered a mitigating factor, I do not agree that it should be so considered. [ 50 ] The timing of the guilty pleas after the close of the Crown ’ s case can hardly be deemed a mitigating factor. Witnesses had to be called. Four days of court time was consumed in hearing from these witnesses.

After the Crown closed it ’ s case on the morning of the fifth day of trial, the defence requested time to consider whether to call evidence. This delayed matters until the afternoon of the fifth day before the defence decided to change its pleas on counts one and three of the indictment. [ 51 ] The accused, any accused, has a right to his or her day in court. That is not something that can be considered against them when sentencing but not calling evidence cannot be considered a mitigating factor. Nor does it signal remorse. Unlike some of the other cases involving Nova Scotia MLA ’ s, Mr.

Zinck did not resign his seat in the Legislature after charges were laid. He continued on all the while drawing a salary and accruing additional transition allowance while relegated to the very back benches of the House of Assembly. [ 52 ] Furthermore, Mr. Zinck ’ s own words as captured in the PSR refutes any suggestions that he is even the least bit remorseful for his actions. Mr. Zinck was given an opportunity to speak on his own behalf before passing this sentence. I accept that he indeed has apologized for his actions to the many people who were affected by them, either directly or indirectly.

I will accept at face value that Mr. Zinck is now, at least, attempting to show his remorse. However, up until I heard those comments, Mr. Zinck continued to try to minimize his unlawful and illegal conduct even going so far as to suggest it was really motivated by selfless concern for others. Altruism has nothing to do with the conduct that led to the charges that are now before this Court. It was done for personal gain and nothing else. [ 53 ] Some people might credit Mr. Zinck for past acts of charity but most will remember him for taking advantage of his position of trust. [ 54 ] Mr.

Zinck has had plenty of opportunity to express remorse and to personally pay the organizations that he used to defraud the taxpayers of this Province. It is hollow rhetoric for him to now say that he had every intention “ to make good on those original claims at some point. ” (Reference page 5 of the PSR) Sentence Decision: [ 55 ] I agree with Crown counsel ’ s submission that the primary objectives in a case of pre-meditated and planned fraud, such as is the case here, is deterrence and denunciation.

[ 56 ] Given the fact that Mr. Zinck also pleaded guilty to fraud and breach of trust in connection with the duties of his office, it only reinforces the need to send a clear message. [ 57 ] That message goes not only to Mr.

Zinck but to anyone who is fortunate enough to be honoured with election to public office. [ 58 ] The sentence must reflect the public ’ s disdain for anyone who would show such total disregard for the oath to serve the public and to uphold the principles of the office they have been elected to. [ 59 ] The proper message would not be sent if I was to accept the defence recommendation to grant Mr. Zinck a conditional discharge. That is simply a non-starter. I also do not consider this an appropriate case in which to sentence Mr. Zinck to a conditional sentence. Since Mr.

Zinck committed these offences, the Parliament of Canada has amended the Criminal Code to exclude conditional sentence orders for fraud over $5,000.00. [ 60 ] While the conditional sentence regime is still available to Mr. Zinck, I do not consider it appropriate given the facts and circumstances surrounding this case. [ 61 ] I do not feel a conditional sentence order would be consistent with the sentencing principles found in sections 718 to 718.2 of the Criminal Code .

It would not adequately reflect the public ’ s denunciation of the crimes committed nor would it send the message of deterrence, both specific and general, that is required in this instance. [Court asks Mr.

Zinck to stand] [ 62 ] For the offence that you between the 30 th day of June, 2007 and the 30 th day of July, 2009 at, or near Halifax, or elsewhere in the Province of Nova Scotia did by deceit, falsehood, or other fraudulent means unlawfully defraud Her Majesty the Queen in the right of the Province of Nova Scotia by submitting false and/or improper expense claims to the Speaker of the Nova Scotia House of Assembly, contrary to Section 380(1) (

a) of the Criminal Code ; I sentence you to a period of incarceration of four months. [ 63 ] For the offence that you: AND FURTHERMORE, between the 30 th day of June, 2007 and the 30 th day of July, 2009 at, or near Halifax, or elsewhere in the Province of Nova Scotia did, being an Official, to wit a Member of the Legislative Assembly for the Province of Nova Scotia, commit fraud and/or a breach of trust in connection with the duties of his office by submitting false and/or improper expense claims to the Speaker of the Nova Scotia House of Assembly, contrary to

Section 122 of the Criminal Code . I sentence you to a period of incarceration of four months to be served concurrently with the previous sentence. [ 64 ] The second count of the indictment involving an allegation of theft contrary to

section 334 (

a) of the Criminal Code is conditionally stayed based on the Kienapple principle. [ 65 ] In addition to the custodial sentence, I also order that you serve a 12-month period of probation which will begin on the day of your release from prison. The conditions that you will have to abide by will be included in an Order of Probation and are as follows -

the mandatory conditions: keep the peace and be of good behaviour; appear before the Court when required to do so by the Court; notify the Court, probation officer or supervisor, in advance, of any change of name, address, employment or occupation; In addition: you are to report to probation officer at Dartmouth located: 277 Pleasant Street, Suite 112, Dartmouth, NS within 7 days from the date of expiration of your sentence of imprisonment and when required or as directed by your probation officer or supervisor; you are to remain withing the province of Nova Scotia unless you receive written permission from your probation officer; you are not to take or consume alcohol or other intoxicating substances; you are not to take or consume a controlled substance as defined in the Controlled Drugs and Substances Act, except in accordance with a medical prescription; you must complete 20 hours of community service work as directed by your probation officer by the end of the probation period; you are to attend for mental health assessment and counselling as directed by your probation officer; you are to attend for alcohol and substance abuse assessment and counselling as directed by your probation officer; you are to attend for a gambling addiction assessment and counselling as directed by your probation officer; you are to participate in and cooperate with any treatment program recommended by those who conduct any mental health, alcohol, or substance abuse or gambling addiction assessment or as directed by your probation officer.

Final Comments to the Offender: [ 66 ] Mr. Zinck, I hope you have a better appreciation for what you have done. You have tarnished the image of all those good people who have had the courage to stand for elected office and who have been motivated to do so for the right reasons. The right reasons have at the forefront – the desire to serve and to serve honourably. [ 67 ] You have failed in your commitments and you must now pay the price for that failure. I hope you have learned a lesson and that you will not succumb to any future temptations of a similar nature.

Justice Glen G. McDougall