R v New, 2023 ABCJ 223

In the Alberta Court of Justice Citation: R v New, 2023 ABCJ 223 Date: October 25, 2023 Docket: 210967717P1 Registry: High Prairie Between : His Majesty the King Crown - and - Emma Lee New Defendant Reasons for Sentence of the Honourable Justice S. P. Hinkley Introduction [ 1 ] I heard this sentencing on October 18, 2023. At that time, I gave an oral

summary of my decision and sentenced the Defendant. This is my written decision. Issues (

a) What is the proper range of sentence for this offence and offender? (

b) Can any potential gaol sentence for this offence and offender be served via a conditional sentence order? (

c) What ancillary orders are appropriate? Background [ 2 ] The Defendant pled guilty on the day of trial to defrauding her Métis Nation of approximately $175 000 over a period of 10 months. At all material times, she was the executive director and bookkeeper for the Nation, and because of her position of trust had exclusive access to their bank accounts. She appropriated these funds on numerous occasions via E-transfer from the Métis Nation account to her own account to fund a spiralling opioid addiction.

The Defendant self-reported her theft via letter and hand wrote a complete confession which commenced the criminal investigation culminating in her guilty plea. [ 3 ] My task is to compose a fit and appropriate sentence for this offence and this offender.

This is an individualized process, requiring a balancing of factors including guidance from the Court of Appeal and Supreme Court of Canada, consideration of the purpose and principles of sentence from the Criminal Code , and particular consideration to the circumstances of Indigenous Offenders and the longstanding and far-reaching effects of colonialism on them. Evidence Reviewed and Findings of Fact [ 4 ] I have before me an Agreed Statement of Fact, with attached exhibits. Pursuant to s 655 of the Criminal Code , every fact

therein is considered proven beyond a reasonable doubt. This document outlines how the fraud was discovered, and includes the hand- written confession of the Defendant, a forensic accounting report confirming the mechanism and amount of the fraud in question as being what the Defendant disclosed and outlines the full cooperation of the Defendant with the police investigation. [ 5 ] After discussion with counsel, I have further reviewed and had filed as exhibits the following, which have been agreed upon as being items this Court can rely upon to the requisite proof standard as either aggravating or mitigating circumstances as s 724 of the Criminal Code requires; (

i) Victim Impact Statement on behalf of the Nation. (ii) Gladue Report concerning the Defendant. (iii) Report of the Restorative Justice Committee regarding the participation of the Defendant. (iv) Multiple certificates of achievement, treatment and training undertaken by the Defendant since the offence date. [ 6 ] Having reviewed all of these materials, I find the following as facts in order to craft a proportional sentence for this Defendant; 1) The Defendant was suffering from a substantial and untreated opioid addiction at the time of the offence. 2) The Defendant has, of their own accord, sought treatment for this addiction, in advance and apart from their potential criminal liability. 3) The Defendant has taken massive strides in treating this addiction and continues to advance. 4) The Defendant gave a full confession and exposed her own fraud, thus choosing to stop and reveal her actions in advance of being discovered. 5) The impact of this offence to the victim is deep and substantial, given both the amount taken and the use for which these funds was originally intended. 6) There are substantial Gladue factors which have impacted this Defendant.

These will be examined later in my decision. The Offender [ 7 ] The Defendant is a 32-year-old Indigenous person registered with the Driftpile First Nation. The Defendant had a high school diploma at the time of the offence and has since trained in two additional fields. [ 8 ] The Defendant was without a prior criminal record to this incident. She is a single person and the primary caregiver to one child, whom she took guardianship of after her cousin was unable to care for them. That child is now 5, and the cousin in question has since unfortunately died.

I am told and believe she has undertaken substantial and lengthy efforts to deal with her drug dependence and remains under medical care to continue same.

Upon understanding addiction was the cause of her offending behaviour, and in advance of any confession or plea, the Defendant commenced drug rehabilitation and has tendered proof of ongoing and continued advancement of same, inclusive of proof of negative drug testing. [ 9 ] The Defendant has also undertaken retraining in a different field and has approached the Chief and Counsel of her Band, who have agreed to give her meaningful employment in her new (unrelated to any fiscal responsibility) field.

She has also recently secured housing for herself and her adopted child on her First Nation after 14 years on a waiting list. [ 10 ] Between the date of plea and sentence, the Defendant approached and worked with a First Nations Restorative Justice group. During that time, she completed several programs, and provided proof of same to this Court. The Restorative Justice Group also provided a positive report on the Defendant.

Principles of Sentence [ 11 ] In addition to the principles of sentence in s 718 of the Criminal Code , which requires the Court to craft a sentence proportionate to the offence and degree of responsibility of the offender, this offence in these circumstances also requires I consider the following additional factors. 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. (

b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market.

(

c) the offence involved a large number of victims. (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health, and financialsituation. (

d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community. (

e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity orconduct that forms the subject-matter of the offence; and (

f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. [12] In this case, I find (

a) and (

c) relevant to my consideration. The Defendant made multiple transactions over a 10-month period.I also find the effect of the fraud, both in the quantum of money taken and the persons affected by it, outlined in detail in the victimimpact statement, to be substantial and significant. Aggravating Factors [13] The offence was a breach of trust by one of the most trusted employees of the Métis Nation. The Defendant acknowledges asmuch in her written confession.

The offence took place over a lengthy period, which allowed the defendant several opportunities toconsider their behaviour and stop it. [14] The amount appropriated was substantial, has never been recovered, and the loss is being borne by a Métis Nation, whoseintention for the funds was to improve the lives of their members generally and for COVID relief specifically. As of the date of sentence,no restitution has been made. Mitigating Factors [15] The Defendant pled guilty, which is mitigating.

Moreover, she was the one who revealed her behaviour to Chief and Councilof the Métis Nation to stop the offending behaviour and wrote a full confession outlining in detail what she did. She articulatedimmediate and real remorse and a willingness to attempt restitution. This remorse was reiterated in her statement before the Court at hersentencing, and I find that remorse to be genuine. [16] The Defendant has also, even before confessing, undertaken substantial efforts to understand and gain insight into heraddiction, and has greatly advanced those efforts to ensure this behaviour is not repeated.

Gladue Factors [17] I have had the advantage of a thorough Gladue report. The Defendant articulates suffering in the report many of the systemicdisadvantages and traumas visited both directly and indirectly upon her via the resounding impacts of colonialism through her people.

Ihave taken judicial notice and considered how the long reaching effects of colonialism have impacted the Defendant and factored thoseeffects into assessing her personal degree of moral culpability for these offences. [18] The guidance of the Supreme Court of Canada in Gladue, and following cases (particularly R v AD, 2019 ABCA 396) isinstructive; Para [19] “A sentencing judge is required to consider the circumstances of the Aboriginal offender (Criminal Code, s 718.2(e)).

Thesecircumstances, often referred to as Gladue factors, include the “unique systemic and background factors” of the offender that may haveplayed a

part in the offender’s conduct (R v Laboucane, 2016 ABCA 176 at para 56, [2016] 12 WWR 34, citing R v Wells, 2000 SCC 10, [2000] 1 SCR 207 at para 38, 182 DLR (4th) 257 and R v Ipeelee, 2012 SCC 13 at para 73, [2012] 1 SCR 433). Considerationof these circumstances may shed light on the offender’s moral culpability (R v Swampy, 2017 ABCA 134 at para 25, [2017] 12 WWR765), although there need not be a causal link between the offender’s circumstances and the offence committed (Ipeelee at paras 81-83; Laboucane at paras 63-64).

A sentencing judge must explain whether the Gladue factors are relevant to determining a fit sentenceinsofar as they affect the offender’s moral culpability (Laboucane at para 64, quoting from R v Napaesis, 2014 ABCA 308 at paras 8 and13, 580 AR 380).” [19] To be clear, Gladue is not a “race-based” sentence discount. This is a statement both incorrect in law and one whichperpetuates a profound ignorance as to what Gladue factors are meant to address.

A sentence which properly incorporates Gladueprinciples will itself be proportional because it will have properly understood and factored in the background of the Defendant inaccurately weighing their personal moral culpability for the offence committed. [20] As articulated by the Alberta Court of Appeal in R v Matchee, 2019 ABCA 251; Para [31] “One way of understanding s 718.2(

e) and Gladue is as a partial remedy for the systemic discrimination suffered by aboriginalpeople which has led to their overrepresentation in the criminal justice system. The remedy requires sentencing judges to recognize thesesystemic factors and that they can play a

part in offending behaviour. The sentencing judge is required to consider the individualcircumstances of the aboriginal offender in this context, with a view to achieving a sentence that is commensurate with the offender’smoral blameworthiness. This approach ensures that systemic factors do not unconsciously lead to further discrimination insentencing: Ipeelee at paras 67-69.”

[21] The Alberta Court of Appeal has very recently articulated the dichotomy between the rote articulation of Gladue principlesand the continuing over-incarceration of indigenous peoples in R v Natomagan, 2022 ABCA 48; Para [8] “For decades, while the justice system has been exhorted to reduce the over-incarceration of Indigenous people, that over-incarceration has increased.

In its 1999 judgment in R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th), theSupreme Court cited studies showing that Indigenous people made up a little over 10% of Canada’s prison population while representingonly 2% of the population at large: at paras 47, 60. It described this over-representation as an “acute problem”: at para 50. In 2001,17.59 % of federally incarcerated inmates were Indigenous. That percentage rose steadily over the next two decades while the non-Indigenous incarcerated population fell.

In 2011, only 4.3% of Canada’s population was Indigenous, but 26.4% of dangerous offenderswere Indigenous. In 2020, when Indigenous people represented 5% of Canada’s population, Indigenous offenders made up 30% offederally incarcerated inmates. In 2021, almost 50% of female inmates were Indigenous” [22] To meaningfully apply both s 718.2 (

d) and (

e) of the Code, there must be significant consideration of the implications of theabove to Indigenous Peoples who appear before the Court. Applicable Case Law [23] The Alberta Court of Appeal has repeatedly identified offences of this nature, committed over time for substantial sums ofmoney by employees in a position of trust must prioritize a denunciatory sentence; both for the offender and the public at large.See R v Bracegirdle, 2004 ABCA 252; R v McKinnon, 2005 ABCA 8 and R v Fulcher 2007 ABCA 381.

The Court in Fulcher went sofar as to note it despite it being commonplace for offenders without prior record to commit these offences, this was in no way adetraction from the need for general deterrence. (Fulcher at para 29). Crown Position on Sentence [24] The Crown says a sentence of denunciation and deterrence is paramount, and such a sentence must be served in a correctionalfacility. The Crown requests a quantum of 18 months to two years, and imposing an order pursuant to

section 738 of the CriminalCode for restitution for the Métis Nation in the amount of $175 000. [25] The Crown cites a number of cases in support of same, including R v Bracegirdle, 2004 ABCA 252, and R v Fulcher, 2007ABCA 381, on the range and type of sentence, and R v Bean, 2020 ABCA 409, on whether or not the Court should impose a restitutionorder. [26] Bracegirdle and Fulcher binding on this Court.

They reinforce the overarching emphasis to be placed on a denunciatorysentence prioritizing both specific and general deterrence the offender and the public at large. [27] On the issue of restitution, Bean helpfully outlines several of the considerations which I should weigh in making such anorder.

Defence Position on Sentence [28] Defence accedes to the position of the Crown on the range of quantum of sentence, the premise this is a fraud by an employeein a position of trust, and the usual sentence should be one emphasizing deterrence and denunciation with a starting point of physicalincarceration. [29] However, Defence seeks a sentence of two years less a day, served via a Conditional Sentence Order, and cites R vBunn, 2000 SCC 9 and the particular antecedents of the Defendant including her status as an Indigenous Person in order toadvocate the court consider these the “exceptional circumstances” contemplated by the Alberta Court of Appeal in Fulcher and citedwith approval in later cases. [30] Defence also concedes the Defendant will be able to obtain employment and should therefore be subject to an order under s738 for restitution. [31] Further, while the Crown has not requested same, Defence concedes an order under s 380.2 would have a deterrent effect onboth the Defendant and the public at large.

Restitution [32] The Métis Nation has requested restitution in the amount of $175 000 and demonstrated ample proof of the causal linkbetween the actions of the Defendant and their loss. [33] I have evidence the Defendant is employable and will be seeking employment in the future. Defence concedes a restitutionorder is appropriate here. I agree. As a part of the sentence, there will be an order for restitution. Is a Conditional Sentence Order Appropriate?

[ 34 ] There are no mandatory minimum sentences for these offences. The range of sentence advocated by counsel are sentences of incarceration not exceeding two years. If this Court concludes a sentence not exceeding two years is fit, I must consider whether serving that sentence pursuant to a Conditional Sentence Order would be appropriate. [ 35 ] This Court is aware of the deterrent effect of a Conditional Sentence Order.

Moreover, I have considered that deterrent effect in combination with the requirement outlined by Parliament in the Criminal Code to consider all alternatives to sentence before resorting to incarceration.

I acknowledge as fact a Conditional Sentence Order can and does have a deterrent effect. [ 36 ] Regardless of this, the norm in Alberta is for crimes of this nature to be served as a term of physical incarceration. [ 37 ] My conclusion is reinforced by the guidance of the Alberta Court of Appeal in R v Fulcher , supra , where the unanimous Court, overturning a Conditional Sentence Order states at para 44; In crimes of embezzlement, the sentencing goals of denunciation and deterrence take on a particular importance.

If this conditional sentence were left standing, anyone else working in a similar capacity of trust for a similar employer could readily see an obvious blueprint for quick wealth.

It shows how to get hundreds of thousands of dollars almost effortlessly with only the potential burden of a conditional sentence of house arrest to fear. [ 38 ] I must, however, reconcile this statement with a more recent statement of the Court of Appeal in Natomagan , supra; Para [123] “In Gladue at paragraph 65 , the Supreme Court recognized that a single judgment about sentencing will not correct the disadvantages experienced by many Indigenous people, including systemic bias in criminal justice.

Nonetheless, since “sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system”, it was necessary to address “the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada.” As the crisis of over-incarceration worsens, it is necessary to address the roles played and tools used by all decision-makers who influence the deprivation of liberty of Indigenous offenders through any means, including sentencing, placement and parole.” [ 39 ] As part of crafting a proportionate sentence, I find as a fact this Defendant has suffered direct, indirect, systemic, repeated, and constant disadvantage, trauma, racism and most importantly exposure to addictions as a direct result of their Indigenous heritage.

This has been compounded by a paucity of availability of resources for her to battle those factors due to a lack of availability of resources for her and her peoples. I find these facts to have been a substantial contributor in her offending behaviour before the Court, and her sentence must meaningfully take this into account to be proportionate.

Conclusions [ 40 ] In reaching a sentence proportional to this offence for this offender, this court must start from the guidance offered in Fulcher , supra; ... absent truly exceptional circumstances, the sentencing goals of deterrence and denunciation demand a sentence of imprisonment rather than the imposition of a conditional sentence for crimes of embezzlement or theft by an employee. [ 41 ] This offender shares many of the features common to persons to perpetuate this type of offence.

Her ostracization, her loss of position and her loss of income and assets are not unusual facets of this type of offence or offender when they are engaged in and sanctioned for this type of activity.

They are, in fact, almost the exact list of circumstances found by the Court of Appeal in R v Zenari, 2012 ABCA 279 (para 8 ), to not be exceptional. …The consequences of a fraud conviction for a person of previous apparently good character are often the same: loss of reputation; loss of job; shame; financial ruin; loss of house; negative repercussions for the family; letters of surprise but continuing support from friends and family; concerns about who will support the family while the accused is in jail, etc.

These are common features of many of the other reported decisions, and cannot be considered to be exceptional… [ 42 ] What is truly exceptional here are the antecedents of the Defendant, and more particularly their history as an Indigenous person. I find the intersection of intergenerational trauma, addiction, and lack of services available to address it combine to lower the individual moral culpability of this Defendant.

This, coupled with the fact the Defendant was the person who self-reported their crime, took treatment for their addiction of their own accord, and began working within a First Nation to regain some of their health and identity makes these circumstances and this offender exceptional. [ 43 ] I find, in this case and for this Defendant, the goals of specific and general deterrence can be met with both a harsher than normal CSO and an order under s 380(2) of the Criminal Code .

Sentence [ 44 ] Reviewing the case law, I conclude the appropriate sentence range after a guilty plea to be 18 months to 2 years in gaol, consideration of an order of restitution pursuant to s 738 of the Criminal Code where it has been requested, and consideration of an order pursuant to s 380.2 of the Criminal Code . [ 45 ] On all the circumstances before me, I find the appropriate sentence to be one of two years, or 720 days, in gaol. [ 46 ] This sentence is therefore subject to consideration for a Conditional Sentence Order, and the imposition of same must be considered.

[ 47 ] In consideration of the unique circumstances of this offence and offender, the Gladue factors for this offender, the need for Courts to start giving meaningful voice to the repeated exhortations of Appellate Courts and the Criminal Code to particularly consider the circumstances of Indigenous offenders, I find this to be a truly exceptional circumstance where the sentence can be served via a Conditional Sentence Order. [ 48 ] The Defendant will serve 720 days in gaol, via a Conditional Sentence Order. [ 49 ] I reviewed the specific terms with the Defendant during my oral sentencing.

Of note for this decision is the following deviation from the usual terms for a Conditional Sentence Order. [ 50 ] The Defendant will be under 24-hour house arrest for 75% of the sentence, or 540 days. This deviation from the norm to emphasize general and specific deterrence. [ 51 ] I prohibit, pursuant to s 380.2 CC, the Defendant from seeking, obtaining, or continuing 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 for a period of 5 years.

This is to give voice to both specific deterrence for the Defendant, but more particularly to demonstrate to the public at large the need of both protection for the public and deterrence for this type of behaviour. [ 52 ] I have considered whether or not to make an order pursuant to s 738 of the Criminal Code . In these circumstances, particularly because this offender will be working within their First Nation, I make such an order.

The offender will make restitution in the amount of $175 000 to the Director of Recoveries for the benefit of either the Region 5 Métis Nation of Alberta or Lesser Slave Lake Métis Nation District 21, whichever is most appropriate given a legal change of name for the Nation ongoing as of this sentencing. Given the priority to be given to restitution, I waive the imposition of surcharges. [ 53 ] I wish to thank counsel for their thorough materials and assistance in this matter.

Heard in the Town of Slave Lake, Alberta on the 18 th of October 2023 Dated at Town of High Prairie , Alberta this 25 th day of October 2023. S.P. Hinkley A Justice of the Alberta Court of Justice Appearances: Nuha Abunada For the Crown Dallas Gelineau Messner Gelineau For the Defendant