R. v. Hurlburt, 2012 NSSC 291

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hurlburt, 2012 NSSC 291 Date: 20120727 Docket: CRY. 355695 Registry: Yarmouth Between: Her Majesty the Queen Plaintiff v. Richard M. Hurlburt Defendant LIBRARY HEADING Judge : The Honourable Justice A. David MacAdam Heard: July 5 th and 27 th , 2012, in Yarmouth, Nova Scotia Final Written Submissions: June 28, 2012 Written Decision: August 2, 2012 Subject: criminal law, fraud, breach of trust by public officer

Summary: The offender, a former Member of the Legislative Assembly, pleaded guilty to charges of fraud over $5,000.00 ( Criminal Code , s. 380(1)(a)) and breach of trust by a public officer ( s. 122 ). The charges related to false expense claims he submitted to the Office of the Speaker, specifically to claims relating to the purchase and installation of a generator and electrical panel installed at his home; two claims for office renovations; and one claim for the purchase and installation of a television. Issue:

(1) Was a conditional sentence appropriate?

(2) What was the proper sentence? Result: The Crown sought a custodial sentence, while the defence argued for a conditional sentence to be served in the community. It was not disputed that three of the four preconditions of a conditional sentence under s. 742.1 were met. There was no minimum term of imprisonment with respect to either of the offences; the circumstances did not warrant a sentence of two years or more;

and the safety of the community would not be endangered by ordering the sentence to be served in the community. The issue was whether a conditional sentence was appropriate having regard to the fundamental purpose and principles of sentencing, and more particularly in respect to general deterrence and denunciation. The pre-sentence report was generally positive and the offender had apologized on several occasions, as well as resigning his seat in advance of the charges. The facts were on a lower level of seriousness than in similar cases where sentences of imprisonment had been imposed.

As such, a conditional sentence was an appropriate disposition. On the charge of fraud under s. 380(1) (a), the court imposed a term of imprisonment of 12 months, to be served in the community. On the charge of breach of trust contrary to s. 122, he was sentenced to a concurrent term of imprisonment of 12 months to be served in the community. At the conclusion of the conditional sentence the offender would be bound by a probation order for a further 12 months. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hurlburt, 2012 NSSC 291 Date: 20120727 Docket: CRY. 355695 Registry: Yarmouth Between: Her Majesty the Queen Plaintiff v. Richard M. Hurlburt Defendant Judge: The Honourable Justice A. David MacAdam Heard: July 5 th and 27 th , 2012, in Yarmouth, Nova Scotia

Final Written Submissions: June 28, 2012 Written Decision: August 2, 2012 Counsel: Andrew MacDonald, for the Crown Stanley W.

MacDonald, for the defendant By the Court : [ 1 ] On July 5, 2012, Richard Melbourne Hurlburt pled guilty to the following offences : between the 26 th day of December, 2006 and the 24 th day of December, 2008, 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, of money of a value exceeding $5,000 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 ; AND FURTHERMORE , between the 26 th day of December, 2006 and the 24 th day of December, 2008, 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 .... [ 2 ] This is the sentencing decision. BACKGROUND [ 3 ] Mr. Hurlburt was a Member of the House of Assembly from July 1999 until he resigned his seat in February 2010. He served as a cabinet minister in various portfolios between August 2003 and June 2009. During this period, members were permitted to recover reasonable expenses they incurred in the course of their duties, pursuant to the House of Assembly Act , R.S.N.S. 1989 (1992 Supp.), c. 1, and associated regulations.

Members would submit expense claims for constituency expenses to the Speaker ’ s Office, and would be reimbursed by the Department of Finance. Claims could be made on a monthly basis, supported by receipts, in relation to MLAs ’ expenses related to offices, meeting spaces, equipment, telephone services and secretarial support. [ 4 ] In November 2009 the Office of the Auditor General completed an audit of MLAs constituency expense claims for the period between July 2006 and June 2009. The audit identified inappropriate and excessive expenses reimbursed to various MLAs.

The results of the audit were published in February 2010. In May 2010 the Auditor General referred several files to the RCMP Commercial Crime

Section for investigation, including a file relating to Mr. Hurlburt. The present charges resulted. They relate to several specific claims: one for a generator and electrical panel installed at Mr. Hurlburt ’ s home; two claims for office renovations; and one claim for the purchase and installation of a television. [ 5 ] In December 2008 Mr. Hurlburt submitted an expense claim for the purchase of a Honda generator and the installation of an

electrical generator panel at his home. The expense claim included a sales order from Ryan ’ s Electrical and Security Services with a notation initialled “ MR ” indicating that payment was by Visa. The owner of Ryan ’ s Electrical, Michael Ryan, said he did not install the generator and does not accept Visa. He said the sales order was a quote he provided to Mr. Hurlburt, who told him he would make the purchase if he received authorization. Mr.

Hurlburt was subsequently reimbursed $9,034.35 on account of this claim. [ 6 ] It emerged from investigations after the Auditor General ’ s 2010 report that in October 2009 Mr. Ryan had installed a King Canada generator and electrical panel at Mr. Hurlburt ’ s home, although he did not supply the generator. He charged Mr. Hurlburt $2,602.91 for the installation. Members of the media had viewed the generator, in Mr. Hurlburt ’ s absence, after the Auditor General ’ s report. Mr. Hurlburt initially claimed that he bought the generator for the purpose of assisting local organizations in the event of power outages.

However, officials of the organizations he mentioned reported no such discussions with Mr. Hurlburt. [ 7 ] Mr. Hurlburt filed two claims for renovations to his constituency office, one in December 2007 in the amount of $7,410.00, and a second in December 2008 for $5,367.50. The invoices related to services provided by Melbourne Builders. The Auditor General and the RCMP determined in the course of their investigations that the work was never done. Mr. Hurlburt collected reimbursement of $12,777.50 on account of these claims. [ 8 ] In January 2007 Mr.

Hurlburt submitted an expense claim for a 40-inch LCD television for his constituency office, including installation costs for labour and wiring. The claim included an invoice from Sky-Tec Electronics in the amount of $3,508.92, dated December 27, 2006. It emerged from investigations that the television was actually installed in Mr. Hurlburt ’ s home. [ 9 ] The total of the four fraudulent invoices submitted by Mr. Hurlburt for constituency expenses was $25,320.77. He repaid this amount to the Office of the Speaker by installments in February 2010 and June 13, 2012.

Pre-sentence report and character evidence [ 10 ] The pre-sentence report reviews Mr. Hurlburt ’ s family, business and public service background. It includes interviews with his spouse, sister, one of his three sons, and two friends. Overall the pre-sentence report indicates that the various persons interviewed are supportive and to a large extent regarded these offences as being out of character. [ 11 ] Mr.

Hurlburt indicated that he tries to remain active in the community and that he hopes to get involved in additional community organizations, "as he wants to make it up to his community," but advised he is "embarrassed" to leave his home. A friend described him as a "good guy" who would do a lot for the community, and who is "devastated" and "seems remorseful over his present charges before the court." The report identified no criminal record.

In concluding his report, the probation officer noted that the "comments obtained for the purpose of this Report were all generally positive and suggest he appeared remorseful for his actions." [ 12 ] The three residents of Yarmouth County who testified at the sentencing hearing spoke about his reputation for integrity, describing the circumstances of these offences as being out of character. [ 13 ] Mr. Hurlburt reported no physical health concerns, with the exception of suffering from high cholesterol and occasional muscle tension in his legs.

He also reported no mental health diagnosis and indicated he had never attended for any mental health counselling in the past. Offender statement [ 14 ] Mr. Hurlburt addressed the court, apologizing to his family, the court, his colleagues and his community for his actions. He stated that he regretted the embarrassment he has caused, including recognizing the impact it has had on his grandchildren. He regrets that his actions might lead some to view politicians less favourably and hoped that others would learn from his mistake.

The law of sentencing [ 15 ] The fundamental purposes and objectives of sentencing are set out at s.718 of the Criminal Code : 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. [ 16 ] The Criminal Code requires a sentence to be "proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1 . Pursuant to s. 718.2, a court imposing 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, and, without limiting the generality of the foregoing,... (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, ... shall be deemed to be aggravating circumstances; (

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. [ 17 ] The offence of fraud under s. 380 carries certain specific sentencing considerations, which are set out at s. 380.1:

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 financial situation; (

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 or conduct 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. ... Non-mitigating factors

(2) When a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. [ 18 ] In this case, there is an issue as to whether a conditional sentence of imprisonment is a proper disposition. The conditions necessary for a conditional sentence are set out in ss. 7 of 742.1 of the Criminal Code : If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 19 ] The requirements for the imposition of a conditional sentence under s. 742.1 were summarized by Lamer C.J.C., for the court, in R. v. Proulx , 2000 SCC 5 , at para. 46 : (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [20] Counsel agree that the first three requirements outlined by the Chief Justice are present. There is no minimum term ofimprisonment with respect to either of the offences to which Mr.

Hurlburt pleaded guilty; the circumstances do not, in the opinion ofcounsel, warrant a sentence of two years or more; and the safety of the community would not be endangered by Mr. Hurlburt serving thesentence in the community.

The issue is whether a conditional sentence is appopriate having regard to the fundamental purpose andprinciples of sentencing, and more particularly in respect to general deterrence and denunciation. [21] Defence counsel submits that the principles of parity, proportionality, restraint and imprisonment as a last resort, demonstratethat a conditional sentence is appropriate in this circumstance. The defence emphasizes the "inextricably linked" principles of parity (s.718.2(b)) and proportionality (s. 742.1), and cites R. v. Priest (1996), (ON CA), 110 C.C.C. (3d) 289, [1996] O.J. No.3369 (Ont.

C.A.), where Rosenberg J.A said, for the court, at para. 26: The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particularoffender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harmoccasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case.

Careful adherenceto the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [22] The defence submits that parity requires the court to analyze closely the circumstances of the offence and the offender, notingthe comment in R. v. Logan, (SCC), [1990] 2 S.C.R. 731, [1990] S.C.J No. 89, at para. 14, that, "within many offencesthere are varying degrees of guilt and it remains the function of the sentencing process to adjust the punishment for each individualoffender accordingly." [23] As the defence points out, subsections 718.2 (d)-(

e) require a sentencing court to consider all available reasonable sanctionsother than imprisonment that are reasonable in the circumstances. The restraint required in choosing between incarceration or aconditional sentence was noted by Lamer C.J.C. in Proulx, supra., at para. 100: Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorativeobjectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

Where the need forpunishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be themore attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferableto incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively asincarceration. This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarcerationwhere appropriate in the circumstances. [24] Bateman J.A. confirmed in R. v. Bratzer, 2001 NSCA 166, that a "properly crafted conditional sentence has a significantpunitive element.... The punitive impact is effected through conditions attached to the sentence (such as house arrest or strict curfews)which restrict the offender's liberty....

A conditional sentence can also achieve the objectives of general deterrence and denunciation..."(Para. 51, citing Proulx, supra., at paras. 35, 36-37, and 66). [25] Parliament initially had not excluded specific offences from the conditional sentencing regime, with the exception of offencesfor which the Criminal Code imposes a minimum term of imprisonment. Conditional sentences are now unavailable for "seriouspersonal injury offences" as defined in s. 752.

This exclusion is not relevant on this sentencing. [26] Lamer C.J.C. rejected the suggestion that a conditional sentence was not available for more serious offences: Proulx at paras.

77 and 81 , cited in Bratzer at para. 52 . The Chief Justice took the view that it would be "both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences": Proulx at para. 81 . He stated that offence-specific presumptions "introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction.

Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences": Proulx at para. 81 . [ 27 ] Discussing the principle of deterrence, Lamer C.J.C. said at para. 107 of Proulx , supra. : Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.

Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.... The empirical evidence suggests that the deterrent effect of incarceration is uncertain.... Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 28 ] It is clear that Lamer C.J.C. did not rule out conditional sentences even where aggravating circumstances called for denunciation and deterrence: Bratzer , supra. , at para. 54, citing Proulx , supra. , at paras. 116, 117 and 130. [ 29 ] The Crown submits that s. 380.1(1) of the Criminal Code codifies "breach of trust" as an aggravating factor.

However, it is the listing of the circumstances in the

section that are to be regarded as the aggravating factors and not simply because the offence is one involving a "breach of trust." In oral submissions the Crown focused on s. 380.1(1) (d) ("in committing the offence, the offender took advantage of the high regard in which the offender was held in the community"), submitting that it was the high regard in which Mr. Hurlburt was held in the community that enabled him to commit the offences. In my view, this is only indirectly the case. It may very well have been the "high regard he was held in the community" that enabled him to be elected.

However, it was his position as an MLA, not necessarily the high regard in which he was held in the community, that enabled him to commit these offences.

In any event the commission of these offences while holding office as an MLA is clearly an aggravating circumstance, whether or not it comes within s. 380.1. [ 30 ] In creating s. 380.1(1) and (2) – which stipulates that the sentencing court shall not consider as mitigating circumstances "the offender's employment, employment skills or status or reputation in the community if those circumstances are relevant to, contributed to, or were used in the commission of the offence" – Parliament, however, did not exclude these offences from the conditional sentencing regime as it did with "serious personal injury offences" in s. 752. [ 31 ] The conditional sentencing regime being available for these offences, it is therefore necessary to determine whether a conditional sentence is appropriate in the circumstances. [ 32 ] The Crown submits that there are various aggravating circumstances in addition to s. 380.1.

The amount of money involved in the fraud, $25,320.77 was not insignificant. The offences occurred over a period of several years. There did not appear to be any particular need or compulsion that would explain Mr. Hurlburt's behaviour. The Crown acknowledges, as mitigating factors, that Mr. Hurlburt had no prior criminal record, he pled guilty, thus saving taxpayers the expense of a trial and saving potential witnesses the anxiety of testifying, and that he made full restitution.

The defence suggests that the only aggravating factor was the breach of trust. [ 33 ] Both counsel reviewed a considerable number of sentencing authorities, 18 in the case of the Crown and 25 in the case of the defence. The mixed results in the caselaw confirm that in cases involving "breach of trust", "fraud" and similar offences, sentences of incarceration as well as conditional sentences have been found appropriate, in individual circumstances. Counsel were asked, during oral submissions, to identify the cases that they considered most relevant in the circumstances of the present offences and this offender.

Each counsel focused on one decision, while also referencing one or two others they felt were relevant to this court's determination of the appropriate sentence for Mr. Hurlburt.

[34] The Crown relied in particular on the decision of Ross J.P.C. in R. v. Wilson, 2012 NSPC 40. Wilson served as an MLA for tenyears. Over a four-year period he submitted 36 false receipts for fraudulent expense claims, totalling $60,999.00. Wilson was 56 yearsold when he was sentenced. He had resigned as MLA after the audit and before the criminal charges. His behaviour was influenced by apathological gambling addiction, which he had taken steps to deal with by the time of sentencing.

Judge Ross recognized that theprinciple of general deterrence was of lesser significance for a pathological gambler and stressed the importance of a denunciatorysentence. Wilson was sentenced to nine months incarceration followed by 18 months probation. He was also ordered to pay restitution infull. [35] The Crown also cites R. v. MacIsaac (1988), (NS SC), 84 N.S.R. (2d) 152, [1988] N.S.J.

No. 151(S.C.T.D.), where Glube C.J.T.D., (as she then was) sentenced the offender on one count of fraud over $1,000.00, four counts of forgeryand four counts of uttering a forged document in relation to false travel expense claims made as a Member of the Legislative Assembly.He was a first-time offender and a lawyer by profession. The amount of the fraud was $10,360.00. He was sentenced to 12 monthsincarceration. Noteworthy, however, is that at the time of this sentence, the conditional sentencing regime had not yet been created byParliament.

As a precedent, it is of limited assistance. [36] Also referenced by the Crown was R. v. Lavigne, 2011 ONSC 2938, where a senator was sentenced to six months incarcerationfor fraud, having made 54 false claims for reimbursement totalling $10,120.00. [37] Other cases cited by the Crown, in all of which the offender was sentenced to a period of incarceration, albeit for terms of lessthan two years, included R. v. Walsh, (NL PC), [2010] N.J. No. 3 (Prov. Ct.) (22 months); R. v. Collins, 2010 NLTD 7(21 months); R. v. Byrne (2009), (NL PC), 286 Nfld. & P.E.I.R. 191, [2009] N.J. No. 85 (Prov.

Ct.) (two years less aday); R. v. Andersen, 2009 NLTD 143 (15 months); R. v. Berntson, 2000 SKCA 47, affirmed on appeal against conviction at 2001 SCC 9(12 months); R. v. Reshke, 2004 ABQB 418 (9 months); R. v. Lee, 2011 NSPC 81 (10 months); R. v. Naugler, 2011 NSPC 68 (8 months);R. v. Cox-Kubas, N.S.P.C. 564131, November 22, 2005, unreported (12 months); R. v. Hill, [1997] N.S.J. No. 97, 1997 CarswellNS 148(S.C.); aff'd (1997), 1997 NSCA 138 , 160 N.S.R. (2d) 21 (C.A.) (12 months). [38] The Crown also referenced five cases in which offenders guilty of offences similar to those committed by Mr.

Hurlburtreceived conditional sentences to be served in the community, along with various other sanctions, such as community service andprobation. These included R. v. Baker (1998), (SK KB), 166 Sask. R. 245, [1998] S.J. No. 277 (Sask. Q.B.) (12months conditional), R. v. McEachern (1999), (PE SCAD), 182 Nfld. & P.E.I.R. 219, [1999] P.E.I.J. No. 85(S.C.A.D.) (15 months conditional); R. v. Everett, 2010 YKTC 91 (12 months conditional), R. v. Harvey, 2006 BCPC 444 (12 monthsconditional), and a decision of this court, R. v.

Matheson, 2001 NSSC 70 (two years less a day). [39] Crown counsel suggests a sentence of 9 to 12 months incarceration followed by a probationary period on the fraud charge, anda concurrent sentence on the breach of trust offence. [40] The defence references a number of reference letters which describe acts of charity and generosity by Mr. Hurlburt.

Such lettersof support have been accepted by courts in other cases, while being mindful of s. 380.1: see Lee, supra., Wilson, supra., at para. 17; R. v.Keatley, 2009 BCPC 249. [41] The defence notes the observation of Derrick J.P.C. in Lee, supra., that the purpose of s. 380.1(2) was to prevent white-collarcriminals from benefiting from their reputation or status in the community in mitigation where it was that very reputation and statuswhich enabled them to gain the trust of potential victims and to commit the offences. In my view this was indirect, in that Mr.

Hurlburt’sreputation in the community provided him with the office of MLA, and the office, in turn, enabled him to commit the offences. In anyevent his use of the office of MLA is certainly an aggravating factor having regard to the "public trust" inherent in that position. [42] The defence raises various points that allegedly go to mitigation. Counsel observes that Mr. Hurlburt resigned when the issueof MLA expense accounts became public, approximately a year before criminal charges were laid.

He thereby lost salary and sufferedfinancial losses, taking a three month leave of absence without pay followed by early retirement. Although Mr. Hurlburt himself wasresponsible for these losses, counsel says this is a consideration in the court's understanding of the consequences to Mr. Hurlburt of hismisdeeds. Also noted by counsel is the fact that Mr. Hurlburt has made full restitution for the amount defrauded, and that he pleadedguilty, recognizing his culpability for the offences.

[ 43 ] Further, counsel says, much of the money misappropriated went into Mr. Hurlburt ’ s constituency account and was therefore made available to constituents. He also notes that upon his resignation Mr. Hurlburt was entitled to retain, for his own benefit, the furnishings and equipment in his constituency office. Counsel produced documentary evidence that Mr. Hurlburt gave the furnishings and equipment to various community organizations. [ 44 ] Counsel also observed that Mr. Hurlburt resigned less than one week after the Auditor General's report was published, and issued a public apology. Mr.

Hurlburt resides in a relatively small town and is well-known, and counsel submits that the stigma attached to his actions is, for Mr. Hurlburt and his family, humiliating. [ 45 ] Although the circumstances of an offence, and the offender, as well as the effect of a finding of guilt or a guilty plea, are relevant in assessing the appropriate sentence, the real issue is the degree of weight to be given to any of them. Mr. Hurlburt has made restitution but, unlike the offenders in many of the cases submitted to the court, he had personal resources that permitted him to do so.

It is a mitigating factor, but must be viewed in that light. The financial income losses occasioned to Mr. and Mrs. Hurlburt, although no doubt significant to them, do not weigh heavily on my consideration as to whether the sentence should be one of "incarceration" or "to be served in the community". In many of the cases, the offender lost their employment or found it necessary to resign from their office. They too suffered financial loss as a result of the consequences of their misdeeds. Mrs. Hurlburt was not involved in the misdeeds by Mr. Hurlburt.

Her resignation from her own employment was her decision, and is not a significant factor in my consideration of the appropriate place in which Mr. Hurlburt should serve his sentence. [ 46 ] The defence also notes the restriction on Mr. Hurlburt's ability to travel to the United States in view of his guilty plea to fraud and breach of trust, subject to the possibility of seeking a waiver. Mr. and Mrs. Hurlburt own a residence in Florida, where they had intended to live for five months each year, following his retirement.

This is another circumstance arising from his commission of these offences which has little bearing on the form of sentence to be imposed. [ 47 ] The defence argues that the caselaw demonstrates that the circumstances of the offences committed by Mr. Hurlburt are far less serious than in cases where sentences of incarceration have been imposed.

Counsel says that a proper application of the principle of parity requires the court to consider various factors, including the amount of money involved in the fraud; the length of time involved and the complexity of the fraud, including the degree of pre-meditation; the number of fraudulent transactions or claims; whether there was bribery involved; any restitution that has been made; the offender ’ s expressions of remorse and acceptance of responsibility, as well as any public apology; and negative personal consequences. [ 48 ] Counsel submits that the circumstances in Baker , supra. , bear "striking factual similarities" to the case of Mr.

Hurlburt. Baker was a former provincial MLA convicted of using false invoices to obtain money for personal use from a member ’ s allowance. The masterminds of the scheme in which Baker was involved were sentenced to incarceration. Scheibel J. held that Baker ’ s involvement and level of fraudulent activity was considerably less than those who received jail sentences. In considering whether a conditional sentence was appropriate, Scheibel J. concluded that the only true aggravating factor was that Baker was in a position of trust.

Further, at paras 25 - 28, the court concluded that objectives of general and specific deterrence were met by the publicity involved: 25. I must be concerned about general deterrence to others and specific deterrence to the accused. I must also take into account the proper punishment of the accused and his rehabilitation. In effect, I must pass a sentence which is fair to society and to the accused. 26.

The pooling concept and subsequent unlawful use of the communication's allowances were devious plans put into place by John Scraba basically to divert government funds into the hands of certain elected officials whose greed prompted them to become involved in the largest political fraud and scandal in the history of our country. 27. There is no doubt that those convicted have violated a special trust that they received when elected as members of the Legislature.

The magnitude of the fraud, the number of M.L.A.'s charged and convicted, and the immense publicity given to these cases has in my view effectively discharged the need for any additional general deterrence. It is highly unlikely a similar offence will ever be committed. 28. In my view the accused is unlikely to re-offend. He has no prior criminal record and apart from this incident it appears that he has been a law abiding citizen throughout his lifetime. Because of this there is no need for further special emphasis on specific deterrence.

[ 49 ] The court imposed a conditional sentence of twelve months. During the first four months of the sentence, Baker was subject to a curfew from 8:00 p.m. to 6:00 a.m. He was also ordered to perform 200 hours of community service work and make restitution. The court did not impose house arrest. [ 50 ] In Wilson , supra. , the sentence was nine months in jail. Wilson made the same types of fraudulent expense claims as Mr. Hurlburt. He also pled guilty to fraud and breach of trust.

The defence argues that the circumstances in Wilson were more serious in terms of the amount of money involved, which was over $60,000.00; the duration and degree of premeditation, given that Wilson ’ s fraudulent expense claims spanned more than four years and involved 36 false expense submissions; and the fact that Wilson involved innocent individuals in his scheme, exposing individuals whom he employed, including family members, to potential tax fraud or tax evasion charges by submitting T4 slips for money that they never received. [ 51 ] As noted by Judge Ross, Wilson had a serious gambling problem.

He persisted in submitting false invoices even after he was interviewed and audited by the Auditor General's Office. He admitted that he lied to the Auditor General. Wilson had made no restitution at the time of sentencing and restitution in the future was unlikely. He did not make any public apology until his sentencing hearing. It should be noted, however, that Judge Ross took note of Wilson ’ s early guilty plea, and was satisfied that Wilson had shown remorse and made a genuine public apology. However, his apology was not as early nor repeated as frequently as Mr.

Hurlburt ’ s. [ 52 ] The most significant aggravating factor in Wilson , supra., in my view, was Wilson's attempt to involve other parties in his activities. In respect to seven of his false claims the receipts he provided in support of his claims were ostensibly signed by a worker in his constituency office.

In Appendix “ A ” to his decision Judge Ross noted: Wilson called her and advised her she might be getting a call from the AG and it was "No big deal." Later he admitted there were six or seven receipts with her name on them and asked her if "There was anyway she could help him." After this conversation she received a T4 slip in the mail for money she had not received. She sought legal advice and advised Wilson she would not speak to him anymore and she cannot help him.

He admitted he took the money because of gambling problem. [ 53 ] In another instance Wilson claimed reimbursement based on 11 receipts for payments made to his brother-in-law for painting. The brother-in-law identified four of the signatures as his own, while seven were not. He said someone must have forged his signature. In respect to another person who worked in his constituency office, he filed 12 receipts, of which she said eight of the signatures were hers, in that she had signed blank expense claim forms at Wilson ’ s request. Four of the signatures were not hers.

Of the $28,495.00 listed on the official receipts, the sum of $27,195.00 was not received by her. There were other examples of Wilson claiming reimbursement for monies paid to persons who were indicated as having worked for him but in fact had not and who did not receive the money that Wilson received in reimbursement. [ 54 ] Unlike Wilson, there is no evidence that Mr. Hurlburt involved others. This, more than the total amount of the claims or the number of fraudulent claims, is a significant distinction in the circumstances of the offences committed by Wilson from those committed by Mr.

Hurlbert. [ 55 ] In general, it appears that incarceration has been ordered in cases of this kind when the amount of the fraud was considerably greater than that involved in these offences; where the offender either gave or accepted bribes; or where the offender involved innocent people in their activities. In some instances, kickbacks were paid to persons who assisted the offender by participating in the fraudulent claim and for which they received some level of compensation.

Another factor, apparent in the jurisprudence, is where the offender has not shown any indication of remorse nor made a public apology for their criminal activity. [ 56 ] In respect to the offenders involved in the spending scandal in Saskatchewan, the Crown suggests that one distinction between those offenders who received conditional sentences from those who received incarceration was their degree of involvement in creating the fraudulent scheme.

It was the individuals most involved in organizing the fraudulent scheme who received incarceration, while others who made fraudulent claims for reimbursement received conditional sentences or, in some instances, fines. Mr. Hurlburt acted alone in advancing fraudulent claims. To that extent he was the architect of the fraudulent activity. However, his scheme in no way approaches the sophistication of the Saskatchewan or Newfoundland schemes. [ 57 ] The Newfoundland spending scandal involved larger sums of money over longer periods of time, together with bribery and

kickbacks. In R. v. Murray, 2010 NLTD 44, the offender, who was the legislature’s director of financial services, pled guilty to anoffence under s. 380, as well as three counts of accepting bribes. His activities were part of a complicated and elaborate scheme spanningfrom 1998 to 2006. He filed false documents showing that the members involved had not exceeded their spending limits, and receivedkickbacks or bribes for allowing them to submit false claims and exceed their spending limits. He was sentenced to two years in prison aspart of a joint recommendation. In R. v. Walsh, (NL PC), [2010] N.J. No. 3 (Prov.

Ct.), the offender was a Member ofthe House of Assembly who defrauded the government of $159,316.55. D. Orr Prov. Ct. J. said, at para. 17: He has never taken any responsibility for his actions blaming others and specifically alleging that he was a victim of the fraudulentactions of Mr. Murray when the evidence established that he had engaged in a lengthy deliberate course of conduct to obtain monies forhis own use.... [58] To similar effect in R. v. Byrne (2009), (NL PC), 286 Nfld. & P.E.I.R. 191, [2009] N.J. No. 85 (Prov. Ct.),another member of the House of Assembly was convicted of fraud and of giving bribes.

The personal benefits totaled $117,812.00.Byrne’s offences also involved the diversion of public funds in the form of excess constituency allowances exceeding $400,000.00. Hewas sentenced to two years, less a day, in jail. Mr. Byrne involved others in his fraudulent claims. Another member, Randy Collins, wassentenced to 21 months in jail for submitting false, forged and duplicitous expense claims totalling $139,387.00 in R. v. Collins, 2010NLTD 7. In committing his fraud he bribed a government official, Mr. Murray. [59] The defence also cites R. v.

Corbeil, 2010 QCCA 1628, where the appellant, a senior official of a political party, pled guilty tocharges of influence peddling and fraud over $5,000.00, arising from a scheme in which he approved false invoices in the amount of$117,315.00. The appellant received kickbacks as part of the scheme. The sentencing judge imposed a prison sentence of 15 months onthe fraud charge, plus a fine on the bribery charge.

The Court of Appeal varied the sentence to 12 months’ house arrest, noting, amongother things, the extensive publicity the offender had received, and the negative effects, including job loss and separation from his wife. [60] A Nova Scotia MLA and cabinet minister pled guilty to using forged documents to make false expense claims in the case of R.v. MacLean (unreported; see details in MacLean v. Nova Scotia (Attorney General)(1987), 1986 NSSC 19 , 76 N.S.R. (2d) 296(S.C.T.D.). The false claims amounted to $22,000.00.

MacLean was sentenced to one day in prison, deemed to be served by hisappearance in court, plus a fine on each of the four forgery counts. This decision pre-dated the introduction of the conditional sentencingregime. [61] In R. v. MacEachern (1999), (PE SCAD), 182 Nfld. & P.E.I.R. 219, [1999] P.E.I.J. No. 85, the PrinceEdward Island Court of Appeal increased the term of a conditional sentence, but declined to replace it with a custodial term. The offenderhad been Deputy Minister of Agriculture.

Mitchell J.A., for the court, held that the sentencing judge had failed to sufficiently take intoaccount the fact that the accused had a previous conviction for a related offence some three years previously, in another province.Considering the Crown’s request for a term of imprisonment, Mitchell J.A. noted the Supreme Court of Canada’s statement in R. v.Gladue, (SCC), [1999] 1 S.C.R. 688, that "such a sanction is only to be used where no other sanction or combination ofsanctions is appropriate to the offence and the offender" (para. 5.) He went on, at para. 5: The sentencing principle in s-s. 718.2(

e) is not limited to minor offences or first offenders. It applies to all offenders including thosewhose offences involve aggravating circumstances such as a breach of trust and previous convictions. Obviously Parliament consideredthat in many instances the goals of denunciation and deterrence, as well as the other sentencing objectives, could all be achieved withoutresorting to jail; otherwise, it would not have cast s-s. 718.2(

e) in the broad and inclusive language it did. Imprisonment in a traditionalpenal facility is only an option when no other sanction or combination of sanctions is reasonable in the circumstances. As Cory andIaccobucci JJ. say at para.57 of Gladue, supra: ... although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation,there is widespread consensus that imprisonment has not been successful in achieving some of these goals.

Overincarceration is alongstanding problem that has been many times publicly acknowledged but never addressed in a systematic manner by parliament. Inrecent years compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencingreforms embodies in

Part XXIII and s. 718.2(

e) in particular, must be understood as a reaction to the overuse of prison as a sanction andmust accordingly be given appropriate force as remedial provisions. This means that under the new regime sentencing courts have a duty in every case to consider sanctions or combinations of sanctionswhich respect the principles and purposes of sentencing without resorting to incarceration in a traditional penal institution. The Crown in

the case at hand insists that a jail in the Correctional Centre is necessary in order to protect the community, to denounce the respondent's conduct, and to deter others from engaging in similar offences. However, as the materials reviewed by the Supreme Court in Gladue , supra , indicate many who have studied our corrections system over the years seriously question the efficacy of jail as a deterrent.

In any event, it seems to me the sanctions of the type imposed by the trial court, along with the public disgrace, loss of status, damage to reputation, stigma of conviction, and loss of employment that has resulted to the respondent from these offences ought to be denunciation and deterrent enough for anyone.

The Crown has not satisfied me that a term in the Provincial Correctional Centre at the taxpayer's expense is required in order to protect the community or to observe the principles and meet the proper objectives of sentencing in this case. [ 62 ] The sanctions involved in a conditional sentence together with the public disgrace, loss of status, damage to reputation, stigma of conviction, and loss of his position as a deputy minister that resulted from these offences "ought to be denunciation and deterrent enough for anyone," in Justice Mitchell ’ s words.

These observations are equally applicable in the circumstances of Mr. Hurlburt. [ 63 ] The cases where incarceration has been imposed have involved aggravating factors not present in the circumstances of Mr. Hurlburt. There is no evidence that he bribed anyone or involved anyone else in the fraudulent activity. He resigned shortly after the release of the Auditor General ’ s report, a year before charges were brought against him. He issued and repeated a public apology.

He has taken full responsibility for his actions. [ 64 ] Since Parliament has not excluded these offences from the conditional sentencing regime, it is evident that a conditional sentence remains available as a sentencing option in the appropriate circumstances, notwithstanding the very significant breaches of public trust.

If it was otherwise, Parliament would have excluded these offences from the conditional sentencing regime, either entirely or in particular circumstances, as it has already done in respect to certain other offences. [ 65 ] Apart from the baseless suggestion that the generator was for community purposes, I am satisfied that there are no aggravating circumstances within the meaning of

section 718.2(

a) other than the abuse of a position of trust. To the extent that s. 380.1 is applicable, it is nevertheless the only real aggravating circumstance. The amounts involved in these offences, and in some instances the number of fraudulent claims, is substantially less than in the majority of cases in which offenders have been sentenced to jail. Conslusion [ 66 ] The offences for which Mr. Hurlburt has pled guilty are not precluded from the imposition of a conditional sentence. The maximum term of imprisonment in respect to each offence is less than ten years and there are no minimum terms of imprisonment.

I am further satisfied, in the circumstances, that an appropriate sentence would be less than two years, that service of the sentence in the community would not endanger the safety of the community and that it would be consistent with the fundamental purpose and principles of sentences set out in sections 718 to 718.2. [ 67 ] I therefore sentence Mr. Hurlburt on the charge of fraud under s. 380(1) (

a) of the Criminal Code to a term of imprisonment of 12 months, to be served in the community. I further sentence Mr. Hulburt on the charge of breach of trust contrary to s. 122 to a term of imprisonment of 12 months to be served in the community, and to be served concurrently with the sentence under section 380(1) (a). At the conclusion of the conditional sentences Mr. Hurlburt will be bound by a probation order for a further period of 12 months. [ 68 ] Compulsory conditions for a conditional sentence order are provided for in s. 742.3(1) of the Criminal Code , which states: 742.3

(1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court;

(

c) report to a supervisor (

i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and (

e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 69 ] Mr. Hurlburt shall report to a conditional sentence supervisor at Yarmouth, Nova Scotia, within two working days of the making of this conditional sentence order. [ 70 ] In addition to the compulsory conditions noted above the conditional sentence order shall contain the following additional conditions:

(1) Mr. Hurlburt shall comply with any instructions received from his supervisor;

(2) Mr. Hurlburt shall reside in his residence 24 hours per day or remain within 100 ft of his residence, seven days per week, subject only to the following exceptions: (

a) in order to comply with any of the conditions of this conditional sentence order; (

b) attending scheduled medical appointments or any personal medical emergency, of himself or any member of his immediate family, after first advising his supervisor of any scheduled medical appointment or in the case of an emergency, advising his supervisor as soon as practical; (

c) attending regularly scheduled employment, and traveling to and from that employment by a direct route, after first advising his supervisor of any employment; (

d) attending scheduled appointments with his lawyer and his supervisor and travelling to and from such appointments by a direct route; (

e) when performing community service, as arranged by his supervisor, and travelling to and from such community service by a direct route; (

f) attending for personal needs, no more then once a week for five hours, on a day and at times approved by his supervisor;

(3) Notwithstanding the exceptions set out in clause (2) herein, including the exception for meetings with his lawyer, Mr. Hurlburt shall not leave the County of Yarmouth, without first obtaining the consent in writing of his supervisor, which consent he must carry with him. The only exception to this would be in the case of a medical emergency for himself or his immediate family and he shall at the first available opportunity advise his supervisor.

(4) Within 11 months from the date of this conditional sentence Mr. Hurlburt shall perform 200 hours of community service, as approved by his supervisor;

(5) During the times he is required to be at his place of residence, being 24 hours per day, seven days per week, subject to the exceptions noted above, he shall: (

a) present himself at the door of his residence upon the request of his supervisor or of anyone acting on behalf of his supervisor or any peace officer; (

b) answer all telephone calls by a landline telephone placed to his residence and identify himself to his supervisor or anyone acting on behalf of his supervisor or any peace officer at the request of that person by telephone;

(6) Participate in electronic supervision if directed to do so by his supervisor;

(7) Participate in the voice verification program, if directed to do so by his supervisor;

(8) Attend any assessment or counseling program as may be directed by his supervisor;

(9) Carry a copy of his conditional sentence order on his person at all times when he is outside of his residence. [ 71 ] Upon completion of the conditional sentence, Mr. Hurlburt will be bound by a probation order for a period of 12 months The compulsory conditions of the probation order, as provided for in

section 732.1(2) of the Criminal Code , are included in the probation order and are as follows: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; and (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 72 ] In addition Mr. Hurlburt shall: (

a) report to a probation officer (

i) within two working days, or such longer period as the court directs, after the completion of the conditional sentence, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer; (

b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer.

[ 73 ] During the first six months of this probation order Mr. Hurlburt shall be at his place of residence by 10 o'clock in the evening of each day and remain there until 7 o'clock in the morning on the following day, unless he has first obtained from his probation officer consent to be absent, which consent he shall carry with him when absent from his residence. MacAdam, J.