R. v. Drake, 2023 NSSC 59

SUPREME COURT OF Nova Scotia Citation: R. v. Drake , 2023 NSSC 59 Date: 20230130 Docket: CRH-480253 Registry: Halifax Between: His Majesty the King v. Elizabeth Anne Drake aka Elizabeth Anne Critchley aka Betty Burns SENTENCING DECISION Judge: The Honourable Justice Joshua Arnold Heard: Written Decision: October 14 and 17, 2022, in Halifax, Nova Scotia February 15, 2023 Counsel: Peter Craig, K.C., for the Provincial Crown Mathieu Boutet, for Elizabeth Drake Overview [ 1 ] Elizabeth Drake was convicted after trial of fraud in the amount of $8,950.

On the first day of trial, she also pleaded guilty to a separate charge of fraud in the amount of $1,075. [ 2 ] Crown and defence jointly recommend that Ms. Drake be sentenced to 18 months’ incarceration, consecutive to any time she is already serving. For the reasons that follow, I agree with the joint recommendation. This is the sentencing decision. Facts [ 3 ] The facts upon which Ms. Drake was found guilty of fraud in relation to Mary Clark are set out in R. v. Drake , 2022 NSSC 91 . Essentially, Ms. Drake pretended she had items to sell when she did not, took money for these fictitious goods from Ms.

Clark under those false pretenses, then concocted a series of fantastic events that required Ms. Clark to continuously produce more money, supposedly in order to receive the “items” she already had paid for, and then strung her along regarding repayment when Ms. Clark caught on to the scam. In the end, Ms. Drake obtained $8,950 of Ms. Clark’s money through deceit, and Ms. Clark had nothing in return. [ 4 ] The facts in relation to the guilty plea Ms. Drake tendered on February 22, 2022, regarding Tanya Gerrard were read into the record by the Crown and include: In mid-August 2017, Ms.

Gerrard met with Betty Burns (an alias of Ms. Drake) regarding a property that was for rent. After being told that the monthly rent amount would be reduced, Ms. Gerrard gave Ms. Burns $500 cash as a deposit on the property. Over the coming days and weeks, Ms. Gerrard paid Ms. Burns (aka Ms. Drake) an additional $450, followed by an additional $125 because Ms. Drake had held out to her that they could split the cost of some movers that she had arranged. The total amount (quantum of the fraud upon Ms.

Gerrard) is $1,075, consisting of: a $500 deposit, a $450 supplement to that (which was representative of first month’s rent), and then $125 for movers.

There is a receipt document, dated August 19, 2017, acknowledging the payments from Ms. Gerrard to Ms. Burns (signed by both parties). There was also a lease of the premises (dated August 24, 2017), executed by Elizabeth Burns and Ms. Gerrard and Ms. Gerrard’s partner, for the 435 Rocky Lake Drive premises. As it turns out, Ms. Drake was merely a tenant of the premises at 435 Rocky Lake Drive and she did not have any authorization or authority to rent that premises to anybody. [ 5 ] Ms. Drake has paid restitution to Ms. Gerrard in the full amount of $1,075.

Victim Impact Statement [ 6 ] In her Victim Impact Statement, Tanya Gerrard states: Your Honor, I have struggled with what to say in this statement for almost 5 years now. How have I been impacted you ask? My job performance suffered incredibly. My smiling nature which was expected as a core value to my employment faded quickly. I was no longer upbeat and personable. I became closed off and insecure. I questioned every fiber of my being trying to figure out how I could have misread things so terribly. I had always prided myself on being able to separate work and home.

Delay after delay cost money and time from work. I was criminally charged and had to seek counsel for trial. I was demeaned, intimidated and utterly shocked when called to be fingerprinted. I’m still baffled by the fact that my case was heard and dismissed by a judge long before this trial ever got underway. I lost a ten year relationship due to the change in my attitude towards people. My easy going and trusting nature has now turned me into a cold and questioning person looking for fault first instead of the good.

The shame and humiliation of being taken advantage of makes you feel foolish and carries long after the event has occured. It has its own ripple effect reaching far and wide. Even though restitution has been paid back in the exact amount of cash that was given, this event cost me my home, my love, my employer and so much more then money. I hope you take all of this into consideration during sentencing. Thank you for your time.

Sincerely, Tanya Gerrard [As appears in original] [ 7 ] In her Victim Impact Statement, Mary Clark states: Your Honor I would like you to know I’ve attempted to write this victim impact statement not once, not twice, it’s been many torn pages. I’ve decieded to not write about myself, or how hard done by I’ve been impacted. Rehashing these past 5 years is unhealthy for my well being. My only request out of fear is that Betty Drake is to have no contact in any way with me or my family. I’m proven history at her attempts to make accusations to police if we were in common areas.

During my week in attending court I felt the need to ask the court security to watch my every move. In closing id like to thank the court for the return of this guilty verdict.

Mary Matilda Clark [As appears in original] [ 8 ] These Victim Impact Statements are a stark reminder that fraud is not a victimless crime and that Ms. Drake’s deceptions and overt lies, combined with her predatory behaviour, first to hook her targets in and deprive them of money, and then to string them along regarding repayment, and also to falsely accuse them of wrongdoing at times in order to divert culpability from herself, can take a great psychological toll on her victims. Presentence Report [ 9 ] A presentence report was prepared in relation to this matter. It describes Ms.

Drake as someone with little education, with literacy issues and as having never held any form of employment. She admits to having a gambling problem. It also describes her as involved in volunteer work and as a reliable caregiver of her grandchildren. The positive comments of those who know her as a generous and caring person are at odds with her criminal record for defrauding many innocent victims over a span of decades and the facts of the case for which she plead guilty and the case in which I found her guilty. Criminal Record [ 10 ] Ms.

Drake has a significant criminal record comprised of at least 78 prior convictions, mainly all relating to dishonesty. According to the Crown, and agreed to by the defence, Ms. Drake’s criminal record is described as follows: Between 1992 and 2014, this Accused accumulated something in the order of 77 prior convictions, 58 of which are for some level of fraud. Her last sentencing in 2014 was for similar offences, and she received concurrent periods of 12 months custody in relation to offences committed in 2013.

The current offences before the Court were committed between October 2016 and November 2017, shortly following her release and completion of 2 years probation. In 2007, she received a total sentence of 3 ½ years custody to a federal institution for related offences. She has been sentenced to the full gambit of possible sentencing options over the years. [ 11 ] On December 15, 2022, she was sentenced to 18 months’ custody for two other fraud matters. [ 12 ] The Crown says: She is, from any objective perspective, an incorrigible recidivist offender.

Not to disregard other sentencing factors, but in this instance, specific and general deterrence must be the primary sentencing factors for Your Lordship’s consideration given this Accused’s unique circumstances and prodigious record for similar offences. Ms. Drake’s Submissions [ 13 ] Ms. Drake chose to address the court during the sentencing hearing. She apologized to her victims and said that she did not know why she did what she did. I note that her crimes were not momentary lapses in judgement or impulsive decisions. Instead they were calculated and protracted crimes.

Procedural history [ 14 ] The sentencing hearing was initially adjourned at the request of Crown and defence in order to allow the Supreme Court of Canada to render its decision in R. v. Sharma , 2022 SCC 39 . The Sharma decision was rendered on November 4, 2022. In the interim, Ms. Drake’s trial counsel was appointed to the Provincial Court bench. Dr. J. Nodelman became solicitor of record and asked if this court would accept other files from Kentville for a consolidation of sentencing and suggested that restitution for Ms. Clark was forthcoming.

I agreed, however the Crown in Kentville subsequently refused and the files were not transferred. Restitution was not made. [ 15 ] Dr. Nodelman then asked for a further adjournment so that the defence could explore further motions. He subsequently transferred the file to Mathieu Boutet, which led to further adjournments. January 30, 2023, was set as the tentative sentencing date. Mr.

Boutet wrote to the court on December 20, 2022, advising the following: Following last weeks appearance in Kentville and subsequent information that came to light late Friday afternoon, please note that, after review of my separate file, I have concluded that there is no merit to the application that was originally suggested. [ 16 ] Mr. Boutet advised on the record that were no other applications and the sentencing would proceed on January 30, 2022. Mr. Boutet filed a brief on January 25, 2023, advising that Crown and defence had reached a joint recommendation.

The proposed joint recommendation is for 18 months’ custody, concurrent to each other but consecutive to the 18-month sentence imposed on December 15, 2022, followed by two years probation with the statutory conditions as well as an order to report as directed and to have no contact directly or indirectly with Mary Clark and Tanya Gerrard, a s. 380.2 order, and a stand-alone restitution order for Ms. Clark. Joint recommendation

[17] In R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204, Moldaver J., for the court, set out the test regarding jointrecommendations: [32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless theproposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what doesthis threshold mean?

Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. [33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute orbe contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line withthe expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system”. And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19, at para. 56 , whenassessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts”. [34] In my view, these powerful statements capture the essence of the public interest test developed by the MartinCommittee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes asubmission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informedpersons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believethat the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as Ishall explain. Conclusion [18] I accept the joint recommendation of Crown and defence as it does not offend the principles outlined in Anthony-Cook.

Thejoint recommendation is for 18 months’ custody on each charge, concurrent to each other but consecutive to any sentence Ms. Drake iscurrently serving, including the 18-month period of incarceration she was sentenced to for other crimes on December 15, 2022. [19] In relation to the s. 380(1)(

a) charge, I also sentence Ms. Drake to a period of two years’ probation following her time in prison,as jointly recommended by counsel, with the statutory conditions as well as an order to report as directed and to have no contact directlyor indirectly with Mary Clark and Tanya Gerrard. [20] In relation to both charges, Ms. Drake will also be subject to a s. 380.2 order prohibiting her from seeking, obtaining orcontinuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property,money or valuable security of another person. [21] Ms.

Drake will be subject to a stand-alone restitution order, requiring her to reimburse Mary Clark the amount of $8,950. [22] Finally, considering Ms. Drake’s poor financial situation, the fact that she is now sentenced to another 18 months in custody,along with the fact that her financial priority should be providing restitution to Ms. Clark, there will be no victim fine surcharge. Arnold, J.