HIS MAJESTY THE KING - v. -, 2023 SKKB 215

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 215 Date: 2023 10 03 Docket: CRM-SA-00321-2020 Judicial Centre: Saskatoon BETWEEN: HIS MAJESTY THE KING - and - BRENDAN JAMES CROWLEY Counsel: Janyne K. Laing for the Crown Evan H. Strelioff for the offender, Brendan Crowley _____________________________________________________________________ JUDGMENT ELSON J.

October 3, 2023 ___________________________________________________________________________ Introduction [ 1 ] In this matter, the offender, Brendan James Crowley (known as “James Crowley”), stood charged with three counts in the amended indictment before the Court. The charges alleged fraud, theft and forgery all related to Mr. Crowley’s employment with a Saskatchewan company. He elected to be tried by a judge and jury. [ 2 ] Immediately before jury selection in the trial of these charges, the Crown and defence came to a plea agreement.

Under the agreement, the offender entered a guilty plea to the fraud count and the Crown eventually entered stays on the other two counts. More particularly, Mr. Crowley entered a guilty plea to having defrauded LongRange Services Ltd. of a value exceeding $5,000, contrary to s. 380(1) of the Criminal Code , RSC 1985, c C-46 . As described in the amended indictment, the offence is said to have occurred at or near Kindersley, Saskatchewan between the dates of September 6, 2018 and March 3, 2019. [ 3 ] Despite the plea agreement, the Crown and defence could not arrive at a joint submission on a sentence.

After having heard a description of the relevant facts and counsel’s submissions, the Court accepted the guilty plea and is now able to pronounce sentence. Background Facts

[ 4 ] The background facts of this case are set out in an agreed statement of facts and some supplementary comments made by counsel. Many of these supplementary comments arose from questions asked by the Court. [ 5 ] LongRange Services Ltd. [LongRange] was an oilfield servicing business headquartered in Kindersley, Saskatchewan and which had been in operation since roughly 2013. It was the successor to an earlier business, known as Double G Oilfield. Kurt Reimer was the founder and majority owner of LongRange. The company’s shareholders consisted of Mr. Reimer and a family trust described as “K. Reimer Trust”.

The beneficiaries of the family trust were Mr. Reimer’s two children and his mother. LongRange ceased operations in or around 2019. [ 6 ] In 2014, Mr. Reimer relocated his personal residence to Warman, Saskatchewan, but maintained LongRange’s operations in Kindersley. Shortly after moving to Warman, he hired Mr. Crowley in 2015 to serve as the company’s manager. The circumstances under which the offender was hired were not clearly described. As I understand it, Mr. Reimer and Mr. Crowley had developed a friendship, the details of which were not disclosed. That friendship eventually crystallized in Mr.

Crowley’s hiring. [ 7 ] Curiously, the Court has no meaningful evidence about LongRange’s financial health while it was in operation. In answer to the Court’s questions, Crown counsel candidly advised that, despite multiple requests of Mr. Reimer, neither the RCMP nor her office had received any financial statements or related information for the company. [ 8 ] Mr. Crowley served as LongRange’s manager until 2019, when his employment was terminated. During this time, Mr. Reimer had essentially left the company’s operations entirely in the offender’s hands.

That said, I think it important to note that the parties did not enter into any written understanding related to the offender’s employment. Indeed, the absence of helpful financial information about LongRange extended to any payroll records that could confirm the employment. [ 9 ] Aside from the employment arrangement, it is agreed that Mr. Crowley and Mr. Reimer had discussed the possibility of the offender purchasing LongRange. While the precise details of any possible purchase – whether an asset or share purchase – were not disclosed, it is agreed that Mr.

Crowley had contacted prospective investors to assist in the purchase. The two men also agreed that Mr. Crowley would forgo payment of any wage or salary for approximately 8-12 months with the understanding that his work during this time would be credited against the eventual purchase price for the business. [ 10 ] Unfortunately, economic circumstances derailed these plans. By May 2017, difficulties in the oilfield industry made the sale of LongRange untenable. Around that same time, LongRange began paying Mr.

Crowley a salary of $5,000 per month, from which monthly payments were later deducted to cover his company truck. More specific details of this arrangement were not disclosed. [ 11 ] By 2018, LongRange was no longer profitable. Mr. Reimer decided to wind up the business. He asked Mr. Crowley to find buyers for the company’s equipment so that the business could collect proceeds on its remaining assets. [ 12 ] Not surprisingly, the relationship between Mr. Reimer and the offender began to disintegrate throughout 2018 and 2019. The two men argued about Mr.

Crowley’s compensation and how the closure of LongRange’s operations would impact him. The relationship deteriorated further when Mr. Reimer began asking questions about the whereabouts of company equipment. [ 13 ] I digress from the narrative at this point to raise an issue about the credit Mr. Crowley had purportedly accrued when a possible purchase of LongRange was in play. Despite my inquiries on the subject, the Court received no specific evidence or information as to when this credit accrued to Mr. Crowley or whether it was ever recognized in some other way after the plan to purchase LongRange collapsed.

As I understand it, neither Mr. Reimer nor Mr. Crowley were forthcoming on this type of information. [ 14 ] On March 1, 2019, Mr. Reimer reported to Kindersley RCMP that several pieces of equipment were missing from LongRange, and that he suspected Mr. Crowley was responsible. The equipment reported missing included: a. 2012 Dodge 550 Picker crew truck and tools b. 2012 Dodge 550 Picker crew truck and tools c. 2008 Sterling Picker truck and crane d. 2007 Ford 5550 Picker crew truck e. 2005 Bobcat S300 skid steer f. Bobcat S300 skid steer g. Bobcat clamshell bucket h. Bobcat snowblower i.

Bobcat hydraulic angle blade j. 4 gas monitors and a charging station [ 15 ] The investigation that followed Mr. Reimer’s complaint resulted in Mr. Crowley being questioned by an RCMP officer on March 5, 2019. When questioned, Mr. Crowley told the officer that he had bills of sale for the items and would bring them to the police detachment. One such bill of sale purported to give the offender six pieces of heavy-duty equipment as severance pay from LongRange on January 17, 2019. Another bill of sale purported to give Mr. Crowley a mobile home as severance payment on February 13, 2019.

It was later determined that, while the transfer of the mobile home was properly described as severance, there was no such arrangement in place for the pieces of heavy-duty equipment. Further, the signature on the bill of sale for the equipment was not

authentic. [ 16 ] The investigation also revealed questionable activities regarding three vehicles owned by LongRange. They were: • a 2008 Sterling heavy-duty truck owned by LongRange, which Mr. Reimer valued at approximately $70,000 [Sterling Truck]; and • two 2012 white Dodge trucks [Unit 121] and [Unit 122]. [ 17 ] Turning first to the Sterling Truck, it is agreed that, in August 2018, Mr. Crowley transferred the registration and insurance of the vehicle into his personal name. He then obtained an out-of-province permit that allowed him to move the Sterling Truck to Alberta for seven days.

To accomplish all this, Mr. Crowley produced a bill of sale dated August 27, 2018, purportedly signed by Mr. Reimer on behalf of LongRange, to sell him the vehicle for $10,000. It is agreed that LongRange did not sell the Sterling Truck to Mr. Crowley and that the purported signature was not authentic. [ 18 ] After moving the Sterling Truck to Alberta, Mr. Crowley entered into a loan agreement with Cash Today Inc. [Cash Today], an Edmonton consumer finance operation. Under the agreement, dated September 6, 2018, Mr. Crowley received a $26,000 cash loan, secured by the Sterling Truck.

The same bill of sale, described above, served as evidence of Mr. Crowley’s interest in the vehicle. Given the loan’s high annual interest rate (53.99%), the total repayment on the loan, over one year, amounted to $81,720.79. Not surprisingly, Mr. Crowley defaulted on the loan. [ 19 ] Meanwhile, when Mr. Reimer noticed the Sterling Truck was missing from LongRange’s site, he questioned Mr. Crowley about it. After receiving the offender’s assurance that the vehicle was “around” and involved in jobs for the company, Mr. Reimer decided, in February 2019, to enter it in an auction in Edmonton.

Coincidentally, Cash Today had already entered the truck for an auction with the same auctioneer, scheduled to take place on February 26, 2019. When the auctioneer informed Mr. Reimer of Cash Today’s interest in the truck, he confronted the offender, who denied the existence of the loan. [ 20 ] It is agreed that, until informed by the auction company about Cash Today’s interest in the Sterling Truck, Mr. Reimer had no knowledge about the loan agreement.

It is also agreed that he did not authorize the loan agreement and did not receive any of its proceeds. [ 21 ] Turning to Unit 121 and Unit 122, both these vehicles were sold, in separate transactions, to a small business in Carstairs, Alberta known as “2 Guys Trailers”. The first transaction occurred on January 24, 2019. On that date, Mr. Crowley, in his personal capacity, sold Unit 121 to 2 Guys Trailers for $35,000. It is agreed that Mr. Crowley converted the sale proceeds to his own personal use. [ 22 ] The second transaction occurred on February 13, 2019. On that date, Mr.

Crowley, again in his personal capacity, sold Unit 122 to 2 Guys Trailers for $34,000. Again, Mr. Crowley also converted these sale proceeds to his own use, including paying debts owed to his landlord and three law firms. [ 23 ] The Court was told that 2 Guys Trailers sold both Unit 121 and Unit 122 to the same third party for a profit. I understood that neither 2 Guys Trailers nor the third party asked for registration documents or bills of sale for Unit 121 and Unit 122. [ 24 ] The evidence before the Court also disclosed exchanges of text messages between Mr. Reimer and Mr.

Crowley about the whereabouts of Unit 121 and Unit 122. In those messages, Mr. Crowley informed his employer that the vehicles were engaged in work for LongRange. [ 25 ] Finally, in March 2019, Mr. Crowley made one last attempt to defraud LongRange. On March 5, 2019, Mr. Crowley tried to change the registration of another LongRange truck, a 2007 Ford Picker crew truck, from the company into his personal name. He made this attempt through a Kindersley insurance broker that LongRange had frequently used in the past. By this time, Mr.

Reimer had grown concerned about missing equipment at the time and instructed the broker not to change over any registration to Mr. Crowley without the employer’s presence and consent. Accordingly, when Mr. Crowley tried to register the vehicle in his name, he was turned away. Later that same day a bill of sale was produced to a different SGI agency to effect the registration. This bill of sale is the same fraudulent document that was shown to Cst. Pearson, purporting to give Mr. Crowley six pieces of equipment as severance. [ 26 ] LongRange terminated Mr. Crowley’s employment on March 6, 2019. The next day, Mr.

Crowley surrendered to police and was placed under arrest for fraud. [ 27 ] The Sterling Truck as well as Unit 121 and Unit 122 were not recovered by LongRange, despite multiple attempts. LongRange did not receive any insurance proceeds for these vehicles as it did not have any coverage for employee theft. Although Mr. Reimer assessed the depreciated value of the three pieces at $170,000, Crown counsel candidly acknowledged that, despite her inquiries, she has no objective evidence to confirm Mr. Reimer’s opinion.

As the other pieces of equipment on the list given to the RCMP were not investigated, the Crown is satisfied that the total amount of the fraud that is provable, beyond a reasonable doubt, consists only of the proceeds the offender actually received on the dispositions, namely, $26,000 for the Sterling Truck, $35,000 for Unit 121 and $34,000 for Unit 122, for a total of $95,000. [ 28 ] The Court received two victim impact statements from Mr. Reimer. The first statement was very brief. Through the Crown, he filed a second lengthier statement.

To fully recite that statement in this judgment would unduly infringe on Mr. Reimer’s privacy. Suffice it to say that his second statement spoke about the financial and emotional damage he and his family have experienced. This, in turn, has led to difficulties in personal relationships that depend on trust. The emotional damage has also impacted Mr. Reimer’s health in specific ways. [ 29 ] As for his comments about Mr. Crowley, Mr. Reimer did not hold back. He said that the offender fooled him by posing as a strong worker, a leader and a friend. Instead, he asserted that Mr. Crowley stole from him and his family.

It is also evident

that Mr. Reimer believes his loss is more than he could prove to the Crown. Personal Circumstances of the Offender [ 30 ] Mr. Crowley is 45 years of age and has resided in British Columbia for most of his life. As a youth, he lived with his family near Langley, British Columbia. He left home at the age of 17 years, primarily because of his father’s abusive behaviour. Mr. Crowley’s counsel advises that, throughout his life, his client had very little support from his family. [ 31 ] In the 1990s, Mr.

Crowley enrolled in the British Columbia Institute of Technology, where he trained to become a gas fitter, later attaining journeyman status in 1996. The offender subsequently worked as a gas fitter in Alberta. He remained there until he answered an advertisement to work for Double G, the predecessor business to LongRange. [ 32 ] At present, Mr. Crowley is performing gas fitting work as a subcontractor in British Columbia, where he lives with his girlfriend. The Court received several letters of reference about the offender.

They include letters from his girlfriend, the president of a drag racing association, a work colleague, three British Columbia businesspeople and a contractor for whom he does much of his work. The contractor described Mr. Crowley as reliable, dependable and a strong performer in his role as a Class A gas fitter. The contractor went on to state that the offender has become a competent, dedicated and valuable member of work projects. [ 33 ] As for his criminal record, it is essentially insignificant. According to the information provided by the Crown, Mr.

Crowley has one conviction in Alberta, in 2018, for simple possession of a “scheduled substance”. He was sentenced to a 12 month conditional sentence. No details were provided about the substance in question. Positions of the Crown and Defence [ 34 ] The Crown submits that the appropriate disposition in this case involves a custodial sentence of two years less a day and a forfeiture order for the $95,000, as well as a fine in lieu of forfeiture of $95,000 less any amounts already paid. The Crown specifically resists the imposition of a conditional sentence.

In advancing this resistance, Crown counsel posits that the circumstances of this case – including the uninsured loss sustained by LongRange and its shareholders – preclude such a sentence. More particularly, counsel submits a conditional sentence would not meet the prerequisite of being consistent with the fundamental purpose and principles of sentencing. In this regard, counsel points to Mr. Crowley’s violation of a trust relationship, the degree of planning involved and the apparent motive of greed. [ 35 ] Defence counsel disagrees.

He contends that a conditional sentence meets all the prerequisites set out in the Criminal Code . A particular advantage commended by counsel is that a conditional sentence will allow Mr. Crowley to pay restitution sooner than would be the case if he serves a custodial sentence. Applicable Law [ 36 ] As made clear in multiple judgments of the Supreme Court of Canada sentencing an offender is not an exact science – nor is it an inflexible, predetermined process. Rather, it is a highly individualized exercise, governed by the circumstances of a particular case.

Having said this, it is also subject to the overarching goal of determining an appropriate sentence, with due regard to the nature and gravity of the offence and the personal characteristics of the offender.

Parliament has mandated specific considerations that guide sentencing judges in addressing the purpose of sentencing, the specific objectives to be served by a sentence and principles which must apply in meeting the purpose and serving the objectives. [ 37 ] The fundamental purpose of sentencing and the general objectives behind the sanctions imposed to serve that purpose, are set out in s. 718 of the Criminal Code : 718.

The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 38 ] The principles intended to guide sentencing judges in crafting a just and fit disposition are set out in ss. 718.1 and 718.2 of the Criminal Code . The first of these provisions articulates the fundamental principle of proportionality while the second provision identifies additional principles to be applied.

Excluding those portions that are not relevant to this offender’s case, ss. 718.1 and 718.2 read as follows: 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; … (

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, …. [39] Another provision of the Criminal Code, which is engaged by the defence submission is s. 742.1. This provisionsets out the circumstances under which a sentencing judge may order a conditional sentence, allowing an offender to serve a sentence inthe community.

As of November 17, 2022, s. 742.1 reads as follows: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximumterm of imprisonment is 10 years or more. [40] Conditional sentences were first introduced as part of the major sentencing reforms enacted by Parliament in1996. The Supreme Court of Canada observed that two of the principal objectives of the reforms were: (1) to reduce the use of prison asa sanction; and (2) expand the use of restorative justice principles in sentencing.

See R v Gladue, (SCC), [1999] 1 SCR688 at para 39; and R v Proulx, 2000 SCC 5 at para 15, [2000] 1 SCR 61 [Proulx]. [41] In Proulx, Lamer C.J.C. addressed the nature of a conditional sentence in the context of these two objectives.On this point, he wrote the following at paras. 21 and 22: 21 The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives. Theconditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.

The offenders who meetthe criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ libertywill be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Criminal Code. In case of breach ofconditions, the offender will be brought back before a judge, pursuant to s. 742.6.

If an offender cannot provide a reasonable excuse forbreaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it wasintended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. 22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it isserved in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation,reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitivesanction capable of achieving the objectives of denunciation and deterrence. ... [Emphasis in original] [42] One of the requirements for a conditional sentence is that it must be consistent with the fundamental purposeand principles of sentencing set out in ss. 718 to 718.2.

This requirement has remained in place since conditional sentences were firstintroduced. A central question related to this requirement is whether a conditional sentence would be consistent with punitive sentencingobjectives such as denunciation and deterrence, particularly where there is the presence of aggravating circumstances. In Proulx, LamerC.J.C. addressed this matter directly at paras. 114-115: 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there areaggravating circumstances, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact thatrestorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciationand deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditionsimposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditionalsentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. [Emphasis added] [43] The Supreme Court of Canada recently revisited the discussion about conditional sentences in R v Sharma, 2022SCC 39, 517 CRR (2d) 140. There the Court noted that s. 742.1 has undergone various amendments since it was first enacted.

Theamendments have had varying effects on the application of conditional sentences, some of which are limiting and some of which are not.Despite these changes, the majority of the Court observed that the structure of s. 742.1 remains substantially the same as was described

in Proulx . [ 44 ] The propriety of conditional sentences for fraud related offences has a divided history. This is particularly so in Saskatchewan, where a body of case law has developed on the issue. [ 45 ] One of the first cases on the issue is R v Fehr , 2001 SKCA 37 , 207 Sask R 101 [ Fehr ] , the offender was a bookkeeper who pleaded guilty to defrauding his employer of $220,000 over a 10-year period. The sentencing judge imposed a conditional sentence of two years less a day. On appeal, the sentence was set aside in favour of a custodial term of 11 months.

Speaking for the Court, Sherstobitoff J.A. concluded that the abuse of a position of trust was a serious aggravating factor. He also observed that the breach of trust was deliberate and took place when the company was completely dependent on the offender to manage its financial affairs. It was further noted that the amount defrauded was high and unlikely to be recovered in full. The consequences were particularly devastating to the company’s reputation and financial position.

The mitigating factors were that the accused had no criminal record, presented a low risk to reoffend, showed remorse, paid back what he could and consented to judgment for the balance. In the context of the aggravating factors and the paramount considerations of denunciation and general deterrence, a conditional sentence was demonstrably unfit. [ 46 ] In R v Harding , 2006 SKCA 118 , 213 CCC (3d) 543 [ Harding ] , the accused embezzled $329,685 over a five- year period from the union local, where he served as the financial secretary. Almost all the embezzled funds were spent on the offender’s gambling addiction.

When the audit was ordered, the offender promptly confessed and apologized. He pleaded guilty to two counts of fraud. Before the Provincial Court, he was given a conditional sentence of two years less one day. On appeal, the Saskatchewan Court of Appeal set aside the original sentence and imposed an 18 months’ incarceration sentence, less five months for the portion of the conditional sentence already served. Speaking through Cameron J.A., the Court concluded that the conditional sentence was inconsistent with the fundamental purpose and principles of sentencing.

In particular, the Court found that the sentencing judge had erred in not giving sufficient weight to the offender having breached a position of trust. Another notable fact was the offender’s awareness that the funds in question had been earmarked for educational and charitable purposes. As such, the victims of his crime extended beyond the union local.

Finally, the Court observed that denunciation and deterrence were paramount considerations in the case and that the sentencing judge had given insufficient emphasis to those objectives. [ 47 ] In R v Gopher , 2006 SKCA 86 , 39 CR (6th) 372 [ Gopher ] , three offenders defrauded a First Nation of more than $1 million in Treaty Land Entitlement trust funds. The three offenders were, respectively, the chief of the First Nation, the trustee of the trust funds and a band councillor. Each of them made a series of illegal payments of trust funds to themselves, their families and their friends over a period of 21 months.

All three offenders were sentenced to conditional sentences of two years less a day. In imposing the sentence, the sentencing judge acknowledged that denunciation and public deterrence were paramount considerations. That said, he also found that restorative justice was emphasized and mandated by s. 718.2(3) of the Criminal Code . On the Crown’s appeal, all three conditional sentences were set aside. In an earlier judgment, two offenders received sentences of 31 months’ incarceration after credit for time served. In this judgment, the third offender faced a sentence of 42 months less credit for time served.

Simply stated, the Court found a conditional sentence to be demonstrably unfit for all three offenders. [ 48 ] In R v Purves , 2011 SKQB 162 , 372 Sask R 280 [ Purves ], the offender was employed as an administrator for a small community in northern Saskatchewan as well as two other authorities. The evidence disclosed that the offender had manipulated financial records, failed to record cash receipts destined to the victims and used the employer’s credit card for personal purposes. One of the motives for her actions was to support her participation in a pyramid scheme that eventually proved to be unsuccessful.

The offender’s fraud amounted to $107,245.11. [ 49 ] Scheibel J. was satisfied that a conditional sentence reflected an appropriate disposition. In arriving at this decision, the Court noted that the accused was severely affected by alcohol and depression at the time the offences occurred. She had a minimal criminal record and was very remorseful for her actions. By the time of sentencing, she had already made a significant effort to provide restitution to the defrauded victims.

Scheibel J. was also satisfied that, despite the presence of significant aggravating circumstances, such as the amount of money involved and the betrayal of trust, they did not negate the imposition of a conditional sentence. [ 50 ] In R v Maskwa , 2013 SKPC 15 , 411 Sask R 238 [ Maskwa ], the offender was a 39-year-old male with no criminal record. He contracted with a car rental company to operate a booth at the Saskatoon airport. The contract was commission based, and the offender was required to remit all monies he received to the car rental company from which he would then receive his commission.

The offender faced financial pressures and started depositing cheques from the government for cancelled licence plates on the rental cars into his own account. He also sold one of the company’s trucks to a third party. Eventually, an audit of the offender’s operation revealed discrepancies amounting to $146,946.61. The offender entered a guilty plea to defrauding the car rental company of more than $5,000. [ 51 ] Labach P.C.J., as he then was, imposed a conditional sentence of two years less one day plus three years’ probation.

In doing so, he acknowledged the existence of aggravating factors, such as the amount of money involved, the three-year timeframe for the fraud and the violation of the trust obligation to the car rental company. Mitigating factors were that the accused had pleaded guilty and expressed remorse for his criminal activity.

The Court was satisfied that the objectives of denunciation and deterrence could be met by a conditional sentence and that such a sentence would not endanger the community in which the offender lived. [ 52 ] In R v Bethke , 2013 SKCA 135 , [2014] 2 WWR 627, the offender, a 56-year-old female, pleaded guilty to defrauding the union local where she served as treasurer. During her time in office, she wrote herself 60 cheques over a five-year period, which, either whole or in part, she was not entitled to receive. Her fraud amounted to $178,320.58.

In Provincial Court, the offender received a conditional sentence order of two years less a day with the first eight months on electronic monitoring. The Court also noted that the offender had a realistic ability and commitment to paying full restitution as soon as possible. On appeal, the sentence was set aside in favour of a term of imprisonment of 15 months. Speaking for the Court, Cameron J.A. concluded that the sentence imposed was not consistent with other cases, he cited, including Fehr , Harding and Gopher .

Concluding that denunciation and deterrence were important sentencing objectives in this instance, the Court found that the sentence under appeal did not match those objectives.

[ 53 ] As an aside in the discussion of this judgment, it may be important to note that Cameron J.A. acknowledged that cases of this kind can present quandaries for sentencing judges. In making this acknowledgement, and while he later emphasized the need for consistency and parity in sentencing, he also recognized that, depending on the circumstances of an individual case, a certain degree of flexibility may be called for.

In this regard, Cameron J.A. wrote the following at para. 45: 45 In leaving the case, we note that the sentencing judge spoke of the difficulties associated with sentencing in cases such as these, suggesting in effect that it was difficult to reconcile some of the case law. There are certainly some difficulties, for sentencing in these circumstances (as indeed in virtually all circumstances), entails a balancing of competing imperatives in the exercise of judgment, and judges are apt to have differing opinions about what constitutes an appropriate balance in the circumstances of the particular case.

This is especially so, perhaps, in determining whether a conditional sentence might be appropriate having regard for the circumstances of the specific case, the purpose, objectives, and principles of sentencing laid down by Parliament in

section 718 of the Criminal Code , and the import of the conditional sentencing provisions of

section 742 as explained by the Supreme Court of Canada in R. v. Proulx , s upra. There are a lot of variables in all this, and hence a significant amount of room for differences of opinion to emerge. [Emphasis added] Analysis [ 54 ] Given the submissions received from counsel, the central issue in this case turns on whether it is appropriate for the Court to direct a conditional sentence order. In addressing this issue, it is important for the offender to understand the implications of such a sentence.

Having regard to the remarks in Proulx , a conditional sentence remains a form of imprisonment, albeit one that is served in the community instead of a correctional facility. As such, to the extent a conditional sentence imposes a restraint on an offender’s liberty, that offender is, in this sense, a “prisoner”. [ 55 ] Returning to the circumstances of the present case, there is little doubt that Mr. Crowley bilked LongRange and Mr. Reimer of at least $95,000, as described by Crown counsel. There is also little doubt that, prior to Mr. Crowley’s crime, Mr. Reimer had placed him in a position of trust.

When the relationship between the two men soured, that trust position provided him the opportunity to exploit it. [ 56 ] In this context, I accept that Mr. Crowley’s crime calls for the Court to serve the objectives of denunciation and deterrence. The authorities make it clear that exploiting a position of trust is an aggravating factor that makes denunciation and deterrence particularly important.

Further, the amount of money involved, while not as significant as the amounts referenced in the cited authorities, is still sufficiently significant that it amounts to somewhat of an aggravating factor. [ 57 ] Having said this, I accept that the circumstances here are complicated by the existence of a prospective plan for Mr. Reimer to sell LongRange’s business to Mr. Crowley. That plan appears to have infused considerable uncertainty into the relationship between the two men, which neither of them meaningfully addressed.

First, there was uncertainty about the nature of the prospective purchase and sale transaction, such as the purchase price and the form of the sale. Secondly, there was uncertainty about how Mr. Crowley’s compensation would be credited against whatever purchase price was eventually determined. Finally, and perhaps more significantly, there was uncertainty about how the compensation credits would be resolved after economic forces, which neither man could apparently control, made the sale of LongRange untenable. [ 58 ] All of these uncertainties heralded the eventual conflict. In particular, it is apparent that Mr.

Crowley felt cheated. Whether such a sentiment was justified, I cannot say. The facts, as presented to the Court, do not assist me in expressing a view one way or the other. That said, I accept that, whether justified or not, Mr. Crowley’s belief that he was unfairly treated became the principal motivation for his unlawful actions. In saying this, I also accept that the element of greed cannot be entirely discounted. That said, I do not regard it as the principal factor. [ 59 ] In making this observation, I do not excuse Mr. Crowley’s actions. They are inexcusable.

Even so, and in the context of his perspective, they may be explainable. [ 60 ] This perspective also presents somewhat of a distinction from the cases cited earlier in this judgment. In all of these cases, the motivation for the fraud related crimes arose from a motive or circumstance that was clearly external to the organizations which were defrauded, such as personal greed, substance addiction, gambling addiction or the general need for extra funds. This case contrasts with those circumstances in the sense that Mr. Crowley sought to recover something that he believed Mr.

Reimer and/or LongRange owed him. [ 61 ] Having regard to all these circumstances, I am satisfied that, on balance, a disposition similar to those applied in Purves and Maskwa is appropriate. In particular, I find that such a disposition is not inconsistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . [ 62 ] In coming to this conclusion, I am not unmindful of Mr. Reimer’s complaint or his situation. He is entitled to restitution and to the closure it will provide.

I am persuaded that this will sooner occur with a conditional sentence order than it will with the offender serving a custodial sentence. Conclusion [ 63 ] In the result, Mr. Crowley is sentenced to a term of two years less one day to be served in the community. The terms under which this sentence is to be served shall be set out in a conditional sentence order requiring Mr. Crowley to: 1. Keep the peace and be of good behaviour. 2. Appear before the court whenever required to do so by the court.

3. Report to the Conditional Sentence Supervisor [Supervisor] or his/her delegate within two working days after the making of this order, and thereafter when required and in the manner directed by the Supervisor or his/her delegate; 4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or Supervisor. 5. Notify the Supervisor in advance of any change of name or address. 6. Promptly notify the Supervisor of any change of employment or occupation. 7.

Reside at a residence approved by the Supervisor, and not change that residence without the permission of the court or the prior written permission of the Supervisor. 8. That except for medical and other emergencies, you must abide by a daily curfew and be confined to your residence between the hours of 9:00 p.m. and 6:00 a.m. unless you have the permission of the Court or the prior written permission of the Supervisor. 9. Personally present yourself at the door of your approved residence to any peace officer, Supervisor or designate monitoring the provisions of this order. 10.

Refrain from the possession or consumption of beverage alcohol as defined by The Alcohol and Gaming Regulation Act, 1997 , SS 1997, c A-18.011 , and any drugs except cannabis and any drugs as prescribed for you by a medical doctor and, where so prescribed, take only as prescribed. 11. Refrain from entering any premises where the primary purpose is the consumption or sale of alcohol. 13.

Take such assessment, counselling or treatment in an approved program for alcohol or drug addiction or abuse, including treatment in-residence, as directed by the Supervisor, and you shall not give cause for dismissal from such program. 14. Follow the instructions of the Supervisor as they pertain to seeking and maintaining employment. 15.

Pay restitution in the full amount owing to Kurt Reimer, on behalf of LongRange Services Ltd. by way of cash, certified cheque or money order to the Registrar of the Court of King’s Bench for Saskatchewan, 520 Spadina Crescent East, Saskatoon, Saskatchewan, S7K 3G7, Telephone 306-933-5135, at the rate of at least $600.00 per month commencing on November 1, 2023, and continuing on the 1st day of each and every month thereafter until paid in full, for transmittal to the parties who have been victimized by the accused’s actions as directed. 16.

Participate in a community service program consisting of no less than 200 hours of community service, as recommended or directed by the Supervisor. [ 64 ] In addition, there shall be an order, pursuant to s. 738 of the Criminal Code , that Brendan James Crowley shall make restitution to the following party and in the amount described below: Kurt Reimer, on behalf of LongRange Services Ltd. - $95,000.00 [ 65 ] Any and all amounts paid by Brendan James Crowley in accordance with paragraph 15 of the conditional sentence order will be set off against the amount described immediately above. [ 66 ] I further direct that a copy of the conditional sentence order be provided to Kurt Reimer.

J. R.W. ELSON