R. v. Ford, 2012 NSSC 340

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Ford, 2012 NSSC 340 Date: 20120926 Docket: Syd. 369699 Registry: Sydney Her Majesty The Queen v. Joanne Ford LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: July 25, September 4, 2012, in Sydney, Nova Scotia Oral Decision: September 26 2012 Written Decision: September 27, 2012 Subject: Appropriateness of conditional sentence

Summary: The Defendant plead guilty to three charges, including fraud, contrary to s. 380(1)(

a) of the Code. The agreed quantum of funds involved was $322,634.00 diverted from a Health Canada program which covers non-insured pharmacy and other medical expenses of First Nation and Inuit beneficiaries. The fraud was perpetrated by virtue of Ms. Ford ’ s role as an approved pharmacist with the Health Canada Program. The Crown sought a two year custodial sentence, submitting a conditional sentence did not adequately address denunciation and general deterrence.

Result: The Court found that the nature and extent of the criminal offence, notwithstanding the accused ’ s personal circumstances, required a custodial sentence, with a term of probation. 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. Ford, 2012 NSSC 340 Date: 20120926 Docket: SYD 369699 Registry: Sydney Her Majesty the Queen versus Joanne Ford Judge: The Honourable Justice Cindy A.

Bourgeois Heard: July 25, September 4, 2012, in Sydney, Nova Scotia Oral Decision: September 26, 2012 Counsel: James Clarke on behalf of the Crown Guy LaFosse Q.C., on behalf of the Accused By the Court : [ 1 ] On February 6, 2012, Joanne Ford pled guilty to the following offences: Between the 31st day of October 2005 and the 13th day of April, 2007, at or near Sydney, in the Province of Nova Scotia, did by deceit or falsehood, or other fraudulent means unlawfully defraud Health Canada, First Nations Inuit Health Branch, Non-Insured Health Benefits Program, of money a value exceeding five thousand dollars by submitting billing claims for payment based on false prescription records, contrary of Section 380(1) (

a) of the Criminal Code ; AND FURTHERMORE knowingly made a false document to wit: billing claims for payment based on false prescription records, with

the intent that it be acted upon as genuine and did thereby commit forgery, contrary to

Section 367 (

a) of the Criminal Code ; AND FURTHERMORE knowingly caused Health Canada, First Nations Inuit Health Branch, Non-Insured Health Benefits Program to use a forged document to wit: billing claims for the payment based on false prescription records, as if they were genuine, contrary to Section 368(1) (

b) of the Criminal Code . [ 2 ] On July 25 and September 4, 2012, this Court heard viva voce evidence, received a number of exhibits by way of consent, and heard the submissions of both the Crown and Defence in terms of what would constitute a fit and just sentence in relation to this matter. I have reviewed and considered the exhibits, the Pre-sentencing report prepared in relation to Ms. Ford, as well as a victim impact statement filed with this Court by Mr. Booker. This morning I provided Ms.

Ford with the opportunity to address the Court, and I have, in reaching a determination as to an appropriate and fit sentence, also considered her comments. BACKGROUND: [ 3 ] An Agreed Statement of Facts was submitted to the Court for the purpose of this sentencing. It provides, in a fairly detailed fashion, the background and context in which the above offences occurred. Given the nature of the fraudulent activity and the respective sentencing positions advanced by the Crown and Defence, it is useful to review substantial portions thereof.

Just before doing so however, it may be helpful to put those agreed facts in better context by briefly addressing the role and mandate of Health Canada, First Nations and Inuit Health Branch, Non-Insured Health Benefits Program. [ 4 ] Exhibit 10 is information from the Health Canada website which describes the role of Health Canada, relevant to this proceeding as follows: Health Canada is working with First Nations people and Inuit to improve their health.

Together with First Nations and Inuit organizations and communities, we carry out many activities aimed at helping people stay healthy, and prevent chronic and contagious disease . . . In recent years, First Nations and Inuit health has improved in areas such as living longer and preventing infant deaths.

Despite improvements, gaps remain in the overall health status of First Nations and Inuit compared to other Canadians. [ 5 ] Exhibit 10 further describes the programs available through Health Canada as follows: There are a number of health-related goods and services that are not insured by provinces and territories or other private insurance plans.

To support First Nations people and Inuit in reaching an overall health status that is comparable with other Canadians, Health Canada ’ s Non-Insured Health Benefits (NIHB) Program provides coverage for a limited range of these goods and services when they are not insured elsewhere.

The Non-insured Health Benefits Program is Health Canada ’ s national, needs-based health benefit program that funds benefit claims for a specified range of drugs, dental care, vision care, medical supplies and equipment, short-term crisis intervention mental health counselling and medical transportation for eligible First Nations people and Inuit. [ 6 ] I return now to the agreed statement of facts. Ms. Ford is educated as a pharmacist. In May, 2005, she signed a licence agreement with Medicine Shoppe Canada Inc. to become a Licensee.

She incorporated a company and opened a pharmacy under “ The Medicine Shoppe ” name at 120 – 336 Kings Road, Sydney, Nova Scotia. [ 7 ] In September and October of 2005, Ms. Ford, through her pharmacy, sought to be recognized as an approved provider with the Non-Insured Health Benefits Program of Health Canada. [ 8 ] On October 24, 2005, a completed “ First Canadian Health Management Corporation Inc., Pharmacy/ Medical Suppliers and Equipment Provider Agreement ” between First Canadian Health Management Corporation Inc. and Ms.

Ford, identifying herself as the Pharmacist/Owner of the Medicine Shoppe Pharmacy, #120-336 Kings Road, Sydney, NS, and Approved Provider #89306 under the

Non-Insured Health Benefits Program of Health Canada came into effect. [ 9 ] On March 15, 2007, a staff member of the Non-Insured Health Benefits Program, Douglas Booker forwarded a letter to Joanne Ford referencing a telephone conference he had with her on March 8, 2007, where they discussed “ a significant increase in the billing of over the counter drug products from Ms. Ford ’ s pharmacy ” . At the same time numerous concerns were identified including but not limited to: i. “ In a relatively short period of time, Ms.

Ford ’ s pharmacy now accounts for : 3.7% of national prescription costs to Non-Insured Health Benefits for topical capsaicin . . . 2.4% . . .for Benylin DM & equivalent products . . .1.1% Claritin products & generics ” and “ these claims are disproportionate to the volumes that would be expected according to the population living in Ms. Ford ’ s region ” as “ only 4% of the entire eligible population . . . reside in the Atlantic region ” ; ii. “ The vast majority (>90%) of prescriptions for these over the counter products stem from one physician ” ; and iii.

Due to these concerns “ the Non-Insured Health Benefits Program will be initiating an immediate investigation into your dispensing of these, and other, over the counter drug products ” and “ effective immediately, the Non-Insured Health Benefits Program would no longer accept claims for over the counter products from your pharmacy ” . [ 10 ] In April 2007, an Audit Team from Health Canada arrived at Joanne Ford ’ s pharmacy to conduct their on-site audit, the results of which indicated approximately $668, 654.00 of unsupported claims. [ 11 ] On March 7, 2008, the Nova Scotia College of Pharmacists set out allegations in a Notice of Hearing “ alleging that Ms.

Joanne Ford breached provisions of the Pharmacy Act and Regulations . . . and conducted herself in a way in which one could conclude that her conduct amounted to professional misconduct ” . [ 12 ] On May 23, 2008, a “ statement of facts ” was agreed upon and signed by the Registrar of the Nova Scotia College of Pharmacists and Joanne Ford whereby it was stated that “ Ms. Ford engaged in professional misconduct and conduct unbecoming ” in that she, amongst numerous things:

i) Wrongly dispensed controlled substances (

a) Without the receipt of a valid prescription; (

b) On a verbal order; (

c) After the quantity specified in the order or prescription had already been dispensed; (

d) In excess of the quantity ordered on the prescription; (

e) In excess of the number of refills authorized by the prescription ” ; ii) Falsified a record of a prescription or the sale of a drug and knowingly submitted a false or misleading account, or false or misleading charge for a drug . . . to the First Nations and Inuit Health Branch ” ; iii) Signed or issued a certificate or similar document containing a statement that the person signing or issuing knew or ought to have known was false or misleading; and iv) Acted as a pharmacist while her ability to perform those actions required of a pharmacist were impaired by drugs ” .

[ 13 ] On June 11, 2008, the Nova Scotia College of Pharmacists and Joanne Ford signed an agreed upon disposition which included the revocation of Ms. Ford ’ s licence to practice pharmacy in Nova Scotia. [ 14 ] In March 2008, the RCMP Commercial Crime Section, Halifax, NS, received information, via the RCMP Financial Crimes Directorate, Ottawa, ON, from Health Canada supporting an allegation of fraud over $5000.00 in relation to the Non-insured Health Benefits Program. The material provided included a Cover Letter, Case

Summary and Draft Audit

Summary of Findings, all of which were submitted as exhibits in this proceeding. [ 15 ] The “ Case

Summary ” authored by Daniel Tessier, Audit Manager, Audit and Accountability Bureau, Health Canada, noted the period that the Medicine Shoppe was in operation, from October 2005 until the on-site audit in April, 2007. Mr. Tessier noted that the claims to the Non-insured Health Benefits Program increased dramatically from 2005, a 5 month period where 3636 claims were submitted and $88,117 was paid, to 2006, an 11 month period where 38,929 claims were submitted and $1,114,235 was paid. According to the Case

Summary the drastic increase in claims and payments is “ difficult to explain ” as the Non-Insured Health Benefits Program clientele come primarily from only 2 small Aboriginal communities, Eskasoni, 35 kilometers away, which has it ’ s own pharmacy in the community that “ was not affected by the increase in claims made by the Medicine Shoppe ” , and Membertou.

Also, the “ growth in sales is associated in part with a single prescriber ” (physician) whose prescriptions from the 5 month period to the 11 month period increased “ 260% ” . [ 16 ] The audit results lead the Audit and Accountability Bureau to the conclusion that The Medicine Shoppe; “ claims were vastly overstated and the pharmacy billed $668,654.00 in excess of eligible claims ” .

There were a number of methods used for this overstating of claims, such as: the frequency of claims did not coincide with the original prescription, in other words, monthly refills were done bi- weekly; refills were added to original prescriptions; brand name drugs were billed when generic drugs were dispensed; and drugs covered by the Non-Insured Health Benefits Program were billed when drugs not covered were dispensed.

As well, not all claims were authentic as “ purchases from suppliers did not justify the number of claims to the Program ” . [ 17 ] In response to receiving the above materials, the Halifax RCMP Commercial Crime

Section commenced a criminal investigation. Between December 2008 and November 2010 that agency executed 12 Production Orders to obtain various government, doctor and bank records. Corporal Roach undertook the investigation, and obtained various materials, including a Compact disc containing a spreadsheet of historical electronic billing records for “ the Medicine Shoppe Pharmacy ” from November 1, 2005 to March 15, 2007. [ 18 ] As part of the analysis conducted by the RCMP Commercial Crime Section, an analytical review was made of the audit conducted by the Audit and Accountability Bureau, by Mr.

Greg Leeworthy from the Forensic Accounting Management Group of Public Works Government Services Canada, an independent organization that provides unbiased and objective forensic accounting services for a number of government agencies including the RCMP. Looking at the value of materials bought by the pharmacy during the relevant time frame based upon supplier invoices, and comparing this to the value of material remaining in stock, and the price of materials sold both independently and billed to the Non-insured Health Benefits Program, a discrepancy of $322,634 was identified.

For the purpose of these proceedings, both parties agree that this amount constitutes the value of the fraud perpetrated by Ms. Ford. [ 19 ] As part of the investigation Cpl. Roach took the opportunity to interview a number of the former employees of The Medicine Shoppe Pharmacy. He confirmed that all verbal orders were taken by Ms. Ford; in addition, she had a password protected computer on which she submitted the claims to the Non-Insured Health Benefits Program. It was also learned that Ms.

Ford would work during the night hours and on weekends filing electronic returns/invoices to the Non-Insured Health Benefits Program. He also was informed that Ms. Ford had directed staff to fill orders for brand named products with generic or less expensive product when the brand name had been claimed through the Non-Insured Health Benefit Program. [ 20 ] Also as part of the police investigation, Cpl. Roach interviewed a number of doctors regarding their prescription procedures and practices specific to a number of identifiable patients.

Based on the information received from the doctors, when compared to the prescriptions billed by Ms. Ford to the program, significant discrepancies were found, including the following:

- A patient between October 24, 2005 and April 14, 2007 was issued 29 prescriptions by the doctor yet the Program was billed and paid for over 750 prescriptions ; - Another patient received 9 prescriptions from the doctor during the same period, but the program was billed and paid for 660 plus prescriptions; - Another patient received 39 prescriptions from the doctor during the same period but the program was billed and paid for 690 plus prescriptions; - Another patient received 27 prescriptions from the doctor during the same period but the program was bill and paid for 574 prescriptions; - Another patient received 63 prescriptions from the doctor during the same period but the program was billed and paid for 537 prescriptions; - Another patient received 19 prescriptions from the doctor during the same period but the program was billed and paid for 515 prescriptions; - Another patient received 52 prescriptions from the doctor during the same period but the program was billed and paid for 505 prescriptions; - Another patient received 18 prescriptions from the doctor during the same period but the program was billed and paid for 475 prescriptions; - Another patient received 42 prescriptions from the doctor during the same period but the program paid for 446 prescriptions; - Another patient received 46 prescriptions from the doctor during the same period but the program paid for 442 prescriptions; - Another patient received 17 prescriptions from the doctor during the same period but the program paid for 431 prescriptions. [ 21 ] It is acknowledged by the Crown that there is some indication from witness statements that Ms.

Ford may have been under the influence of some form of illegal drug or prescription medication between the dates alleged on the Indictment. EVIDENCE AT THE SENTENCING HEARING: [ 22 ] At the sentencing hearing the Court heard the evidence of Constable Roach, the lead investigating officer, and Mr. Leeworthy, who conducted the above noted independent audit. Their evidence supported the agreed statement of facts, and further, the exhibits entered by consent. On cross-examination, Constable Roach acknowledged that the issue of Ms.

Ford ’ s drug usage had been referenced on several occasions in the course of the investigation; however, the witness testified his role was not to investigate the potential catalysts for the commission of an offence, but whether one had in fact occurred, and its magnitude.

[ 23 ] The Crown further called Aleisha Redden-Jessome, who worked with Ms. Ford, as a pharmacy technician during the time frame of October 2005, until the pharmacy closed in March of 2007. Ms. Jessome testified as to how prescriptions were filled, and submitted to a health plan provider for payment. Ms. Jessome testified that she would input prescriptions, and that the process involved several steps, requiring a degree of concentration. As a pharmacy technician, she was not permitted to take oral prescriptions via telephone from physicians. Rather, these would be taken by Ms.

Ford, who would transcribe the oral prescription to paper, which could then be filled by either her, or Ms. Ford. [ 24 ] Ms. Redden was asked about her relationship with Ms. Ford. The witness indicated that she had worked with Ms. Ford earlier at a pharmacy in Eskasoni, but did not consider themselves to be friends. She testified that on occasion, Ms. Ford could be difficult to get along with, often being moody. When asked about her knowledge of Ms. Ford ’ s drug usage, Ms. Jessome indicated that on one occasion, she thought she saw Ms.

Ford take a pill, but that she had no real concerns until her boyfriend, now husband, who is a paramedic, had visited the pharmacy. After having interacted with Ms. Ford, he questioned the witness as to “ what she is on ” , referring to drug usage. After this comment, Ms. Jessome indicated that she paid more attention to Ms. Ford ’ s presentation, and she did begin to have concerns, noting that her pupils were often dilated. This comment was made approximately three weeks prior to the auditor arriving to review the pharmacy records in April of 2007. Prior to her boyfriend making that comment, Ms.

Jessome had not noted any behaviour of concern in relation to Ms. Ford, other than moodiness. [ 25 ] Ms. Ford called two witnesses on her behalf, Mr. Carl Andrews and Dr. Munshi. [ 26 ] Mr. Andrews has known Ms. Ford since 2004, and described himself as a close friend. He has, in the past, resided with Ms. Ford, and they have been romantically involved, although presently they are friends. [ 27 ] Mr. Andrews testified as to Ms. Ford ’ s alcohol and drug usage, indicating that in 2004 Ms. Ford would utilize both alcohol and drugs, often resulting in her exhibiting erratic and concerning behavior.

At some point, Ms. Ford discontinued the use of alcohol, but her use of prescription drugs continued. [ 28 ] Mr. Andrews described the stress Ms. Ford experienced both during her divorce and while operating the Medicine Shoppe Pharmacy. He described her as taking handfuls of pills during this time frame, and he was so concerned for her well-being that he called drug dependency services for advice on how to assist her. [ 29 ] Mr. Andrews testified that Ms. Ford was often “ whacked out ” from her use of drugs and this impacted on her ability to run the pharmacy. Mr.

Andrews further described the remarkable change in Ms. Ford since she ceased using prescription drugs, and after focussing her energies on educational pursuits. He indicated that Ms. Ford is humiliated by her actions in terms of the charges before the Court. [ 30 ] Dr. Autar Munshi provided a report dated April 26, 2012 and also gave viva voce evidence. He has been Ms. Ford ’ s treating psychiatrist since July, 2007. Dr. Munshi initially treated Ms. Ford for a primary diagnosis of depression. After that lifted, Dr. Munshi became aware of Ms. Ford ’ s underlying drug and alcohol addictions. [ 31 ] Dr.

Munshi opines that given the strong genetic component of mental illness in her family, this predisposed Ms. Ford to developing a substance abuse problem in response to various life stressors. Dr. Munshi provided evidence of Ms. Ford ’ s drug and alcohol misuse, this was however, based upon Ms. Ford ’ s self reports. By July 2007, when Ms. Ford began treatment with him, she had been clean of alcohol for two years and drug misuse for several months. [ 32 ] Dr. Munshi testified as to his level of involvement with Ms. Ford, indicating that the frequency of visits have decreased, given her improvement.

She is now stable, not taking any medications and sees Dr. Munshi two to three times per year.

[ 33 ] Dr. Munshi expressed concern as to Ms. Ford ’ s possible incarceration, stating that his biggest concern would be the psychological impact on her children, as well as her elderly parents. Dr. Munshi also indicated that any major stressor, such as incarceration, could lead to a relapse in terms of Ms. Ford ’ s sobriety. He testified this is a high risk. On cross examination, Dr. Munshi further indicated that Joanne Ford has a strong support system to assist with controlling her circumstances, with Ms. Ford herself, being the major factor in controlling her recovery. Dr. Munshi described Ms.

Ford as possessing a great number of personal strengths. [ 34 ] Dr. Munshi further testified that in his interactions with Ms. Ford, she has expressed a great deal of shame and remorse and has accepted responsibility for her actions. PRE-SENTENCING REPORT: [ 35 ] The Pre-sentencing report was prepared following discussion with Ms. Ford, her father, friends, her family physician, and educators at Cape Breton University. The report describes that Joanne Ford due to a number of factors, has had several difficult years, with a number of stressors being described.

This included a marital breakdown, coping with her mother ’ s health concerns, financial stressors, all while dealing with a drug and alcohol dependency. Ms. Ford has, according to the author of the report, made significant strides to turn her life around, and has, in particular, focused her considerable intellect on re-educating herself. Three paragraphs in particular, summarize the information collected by the author: Joanne Ford is a 46 year old offender appearing before the court for the first time for sentencing on charges contrary to Sections 380(1) (a), 367 (a), and 368(1) (

b) of the Criminal Code of Canada . Ms. Ford describes a positive upbringing although she was exposed to alcohol use within the home by her father and brothers. She recalled the stress of being exposed to the arguing that resulted between her father and brothers during their use of alcohol. Collateral sources contacted describe Ms. Ford currently and having always been a studious, capable student. Further Ms. Ford is described as a very good mother, daughter, and friend.

An addiction to alcohol and drugs, combined with the available access to prescription and over-the-counter medication, along with limited support and monitoring, appear to be the contributing factors in the offender ’ s current situation before the Court. Ms. Ford ’ s situation became compounded upon the breakdown of a marriage that offered little support and her mother ’ s diagnosis with a serious illness. All of the above has resulted in Ms. Ford ’ s current situation before the Court and the loss of her license and rights to practice pharmacy. According to sources contacted, Ms.

Ford has taken the necessary steps with success to address the many issues in her life prior to the charges currently before the Court. Her decision to pursue the teaching field appears to have been the catalyst for the many other positive changes. She has excelled in her studies and hopes to continue with same. Ms. Ford has sought treatment for her addictions and continues to manage them successfully. Further, any mental health issues continue to be addressed through her ongoing involvement with a psychiatrist.

She is actively involved in the lives of her two children. [ 36 ] The report concludes by indicating that Ms. Ford would be a suitable candidate for a period of community supervision, if the Court felt such was an appropriate disposition. VICTIM IMPACT STATEMENT [ 37 ] A Victim Impact Statement was filed with the Court by Mr. Douglas Booker, Director, Program Analysis Division, Non- Insured Health Benefits Directorate. Mr. Booker outlines the impact Ms. Ford ’ s action had on the Non-Insured Health Benefits program, and in a more general fashion.

He states: “ The fraud perpetrated by Joanne Ford on the defendant corporation constitutes a substantial misappropriation of taxpayer money and places a financial burden on a program that serves the needs of a vulnerable population. Health Canada ’ s Non-Insured Health Benefits (NIHB) program has experienced significant economic damage as a result of Ms. Ford ’ s abusing her role as an NIHB pharmacist. This role called upon Ms.

Ford to ensure the timely and accurate dispensing of prescription drugs to beneficiaries required to address their health care needs based on an honour system designed to favour access to benefits. Ms. Ford took advantage of this system for the sole purpose of fulfilling her personal needs to the detriment of the program and those it is intended to serve. ” [ 38 ] Mr. Booker expresses concern regarding the financial impact of the fraud in terms of the cost of the audit and investigation and the impact on First Nations beneficiaries. In terms of broader community impact, Mr. Booker writes:

“ The distribution of controlled substances without the receipt of a valid prescription and the missing 7,800 tablets of Oxycocet represent a serious risk to the health of the community.

The loss of large quantities of highly addictive drugs could result in increased addiction problems in Sydney and additional addiction treatment costs for Health Canada. ” CRIMINAL CODE PROVISIONS: [ 39 ] Before considering in detail the respective positions of the Crown and Defence, it may be helpful to review the framework for sentencing provided by the Criminal Code . [ 40 ] The fundamental purposes and objectives of sentencing are set out at s. 718 of the Criminal Code , which provides: 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. [ 41 ]

Section 718.1 of the Code requires a sentence to be “ proportionate to the gravity of the offence and the degree of responsibility of the offender ” . 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. [ 42 ] As will be discussed in further detail below, this Court will be tasked with determining whether a conditional sentence is appropriate in the circumstances of this offence and offender. This of course, brings into consideration s. 742.1 of the Code which provides: 742.1 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. R. v. PROULX:

[43] The leading authority with respect to the appropriate use of conditional sentence is the decision of Chief Justice Lamer in R. v.Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61. That decision considers in detail, the rationale behind the statutory creation ofconditional sentences and the considerations which must be taken when the possibility of such a measure arises. [44] In what is now a familiar passage, Chief Justice Lamer outlines the requirements for a sentence pursuant to s.742.1 at paras. 46and 47 as follows: 46.

This provision lists four criteria that a court must consider before deciding to impose a conditional sentence: (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. 47.

In my view, the first three criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whetheror not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence isappropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.... [45] It may also be useful, given the focus of the arguments before me, to further note the Chief Justice’s own

summary of thereasons in Proulx, supra, as outlined at para. 127 of the decision. He writes: 127. At this point, a short

summary of what has been said in these reasons might be useful: 1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as asanction and to increase the use of principles of restorative justice in sentencing. 2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitativesentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

Therefore,conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as housearrest should be the norm, not the exception. 3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, norshould there be presumptions in favour of or against a conditional sentence for specific offences. 4. The requirement in s. 742.1(

a) that the judge impose a sentence of imprisonment of less than two years does not require thejudge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in thecommunity. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in somecases. Instead, a purposive

interpretation of s. 742.1(

a) should be adopted. In a preliminary determination, the sentencing judge shouldreject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a termof imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or hersentence in the community. 5. As a corollary of the purposive

interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to thesentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of aconditional sentence make for a just and appropriate sentence. 6. The requirement in s. 742.1(

b) that the judge be satisfied that the safety of the community would not be endangered by theoffender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not theprimary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge shouldconsider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endangerthe safety of the community by providing insufficient general deterrence or undermining general respect for the law.

Two factors shouldbe taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to therisk of physical or psychological harm to individuals. 7.

Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of aconditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principlesof sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarcerationas a sanction.

8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. 9.

Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. 10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. 11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. 12.

No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender ’ s best interests to establish elements militating in favour of a conditional sentence. 13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts.

As explained in M. (C.A.), supra, at para. 90: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit ” . POSITIONS: [ 46 ] I turn now to the positions advanced by the parties. [ 47 ] The Crown is seeking a term of imprisonment of two years, a lengthy period of probation and a restitution order in the amount of $322,634.00. While agreeing to a restitution order, Ms.

Ford has put forward an extensive argument in support of a conditional sentence. Both parties have provided the Court with numerous case authorities in support of their respective positions, which have been reviewed and considered. I will not, for the sake of brevity, outline here, the cases submitted. They have all been reviewed and considered. [ 48 ] Ms. Ford, in particular, relies heavily upon the Supreme Court of Canada ’ s decision in Proulx , supra. In particular, she asserts that s.718(2)(

e) of the Code must be kept in the forefront of the Court ’ s mind, and relies upon the comments of Chief Justice Lamer in Proulx , supra, who states as para.100: 100. Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction.

However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

[49] Further, it is submitted that Chief Justice Lamer clearly recognized the ability to craft a conditional sentence which would morethan adequately address any concerns surrounding adequate denunciation and appropriate deterrence. [50] Ms. Ford’s counsel submits that this Court can, and should, craft the terms of the conditional sentence so that Ms. Ford is notonly punished, but seen to be punished by the community at large.

He submits that Courts in this province, and elsewhere, have utilizedthis approach for fraud offences, including those involving substantial sums of money. [51] The Court has been asked to consider the hardship, loss and humiliation suffered by Ms. Ford arising from the aftermath of thecriminal charges. She has lost her business, declared bankruptcy, and suffered the loss of her job at Island Career Academy due to thepublicity surrounding these charges. She has lost custody of her children. It is submitted all of these would serve as deterrence to thoseconsidering the commission of similar offences. [52] Mr.

LaFosse submits that this is an extraordinary case, and that Ms. Ford’s personal circumstances should weigh heavily indetermining a fit sentence. It is submitted that not only would a conditional sentence be appropriate, but that a term of incarceration maybe devastating for Ms. Ford in terms of her battle with addiction, and could erase the impressive personal achievements she has made inthe last few years. Ms. Ford has, through her own efforts and determination, graduated with a Bachelor of Education degree at the top ofher class, and has received funding to pursue Masters studies.

A term of incarceration, it is submitted, would destroy this progress, andperhaps even Ms. Ford. [53] The Crown, as noted above, argues for a two year period of incarceration, followed by a lengthy period of probation. It isasserted, strenuously, that a conditional sentence is not appropriate in the present circumstances. [54] The Crown concedes that the first three requirements for a conditional sentence are met in the present instance. Namely, theoffences do not carry a minimum term of imprisonment; a sentence of less than two years could be imposed; and Joanne Ford is not arisk to the safety of the community.

It is the fourth factor, that a conditional sentence would be consistent with the fundamental purposeand principles of sentencing, which the Crown asserts cannot be met in this instance. [55] To succinctly summarize the Crown’s arguments on that point, I turn to Mr.

Clarke’s brief where he writes at paragraph 68 asfollows: “...Very simply, case law suggests that, absent exceptional or unusual circumstances, in the case of a fraud perpetuated over a significanttime-period, involving significant funds, numerous transactions and a breach of trust, only a period of actual incarceration can satisfy theprinciples of denunciation and deterrence. The abuse of a position of trust or authority in relation to a victim is an express aggravating circumstance set out in the sentencingguidelines under s.718.2.

This factor has traditionally drawn a severe custodial term even with first offenders. I do not believe that thiscourt should exercise its discretion in favour of having the appellant serve her sentence in the community where, as here, the trial judgehas clearly stated his concerns as to how a non-custodial term would be viewed by the community. Despite the passage of s.742.1, theprinciples of general deterrence and public denunciation require a custodial term in these circumstances. R. v. Pierce, (ON CA), [1997] O.J.

No. 715 (C.A.) At para.48 [Tab 20].” DISPOSITION: [56] I turn now to consider the appropriate disposition in this case, and begin the analysis with reviewing the aggravating andmitigating factors. [57] In terms of aggravating factors, I accept that the circumstances of this case fall squarely within s.718.2(a)(iii) of the Code, asthere has been a significant abuse of a position of trust or authority by Ms. Ford. This abuse is multi-faceted in my view. Firstly, Ms.Ford was in a contractual relationship with Health Canada whereby she was permitted, with little questioning, to submit for payment,

prescription expenses for members of the First Nations community. She took advantage of the level of trust placed in her and the expectation that she would accurately and honestly submit billings to that program. [ 58 ] Further as a pharmacist, Ms. Ford played an important role in the provision of healthcare services. She had an obligation to physicians to accurately carry out their instructions with respect to the prescriptions issued. Ms. Ford breached this trust, and through her actions, artificially inflated the number of prescriptions being ascribed to particular doctors. Similarly, Ms.

Ford was in a position of trust and authority as it relates to the accuracy of her clients ’ medical and prescription records. She utilized her position to artificially inflate the prescription history of numerous pharmacy clients. These actions could have had serious ramifications for the physicians, and the individual patients. [ 59 ] In terms of other aggravating factors, the quantum of the fraud, $322,634.00 is substantial, as well as the fact that it was accumulated over a 15 month period.

In reviewing the material before me, I readily conclude that the methodology behind the fraudulent transactions involved a significant degree of complexity. As noted in the agreed statement of facts, Ms. Ford utilized several methods to wrongfully extract funds from the Non-Insured Health Benefits Program, including monthly refills being billed on a bi- weekly basis, refills being added to original prescriptions, charging for brand name drugs when generic drugs were issued, and charging the Program for drugs which were never issued. [ 60 ] The above sum was constituted by numerous individual instances of fraud.

This practice continued until Ms. Ford was notified by Health Canada that serious discrepancies had been noted in March of 2007. This was a large scale fraud which targeted public funds set aside for a disadvantaged group in our society. Not only did Ms. Ford place the financial security of the Program in jeopardy, she manipulated records in such a manner to reflect numerous members of the First Nations community as having received greater amounts of prescription medication than what in reality they did. [ 61 ] I turn now to mitigating factors. Undoubtedly Ms.

Ford ’ s guilty plea, at an early stage, saved considerable time and effort in terms of the prosecution of these offences. If Ms. Ford had exercised her right to have the Crown prove the nature and extent of the charges brought against her beyond a reasonable doubt, significant time and expense would have been incurred. Given the nature of the fraudulent transactions, and the quantity of transactions involved, it would have taken considerable prosecutorial resources to prepare and present the evidence at trial. Significant court time has also been saved by virtue of Ms. Ford ’ s guilty plea.

In a similar vein, Ms. Ford has agreed to a common set of facts for the purpose of this sentencing. This also saved considerable effort in terms of the evidence required at the sentencing hear. [ 62 ] I further accept that Ms. Ford not only regrets the consequences of her actions in terms of the loss of her business, previous profession, and family turmoil, but regrets the commission of these offences. She has lost her business, her standing and good reputation in the community, and the custody of her children. She has much to be remorseful for. [ 63 ] The issue of Ms.

Ford ’ s alcohol and drug abuse has been raised by the Defence as a strong mitigating factor. I readily conclude that Ms. Ford has struggled with addition issues, and at times may very well have been “ whacked out ” . I cannot accept however, that Ms. Ford ’ s level of dependency was as severe or constant as submitted by her counsel.

According to the testimony of her treating psychiatrist, she was able to set aside her usage twice while pregnant, ceased her alcohol consumption on her own initiative, and was drug free within a few short months following the Health Canada audit, and specifically at the commencement of her treatment with him. Ms. Ford presently has a firm grip on her addiction issues, and although a major life stressor may push her towards a relapse, I believe she has the strength of character to maintain her sobriety.

The people she loves need her to remain sober. [ 64 ] Unlike many individuals who find themselves before the Court with similar addiction issues, Ms. Ford was not compelled to commit fraud to finance her addition. Her drugs were available to her by virtue of her position. It is unclear where the funds obtained by Ms. Ford ’ s fraudulent conduct has gone. [ 65 ] Likewise, various life stressors were presented, not as excuses, but as mitigating factors. I accept that Ms. Ford has experienced financial and family crises which undoubtedly made things difficult for her.

She has struggled, but I do not view her circumstances as being extraordinary. Many people experience marital breakdown and financial difficulties. Many people witness the decline of their

parents in terms of their health. These are not easy aspects of life, but they are not uncommon. [ 66 ] To her credit, Ms. Ford has admirably picked up the pieces of her life and has not only shown initiative in terms of her impressive academic achievements, she has made a new path for herself in terms of a bright and productive future. This will not only benefit herself, but her children as well. [ 67 ] As noted above, Ms. Ford is not a safety risk in the community. Specific deterrence is not a consideration in the present case, as the chances of Ms. Ford re-offending is low.

She has already embarked herself upon the progress of rehabilitation. In my view, the sole consideration for this Court is whether a conditional sentence is a fit and proper sentence in light of the circumstances of this case, as it relates to the principles of general deterrence and denunciation. Although the case authorities submitted by both parties are helpful, ultimately it is the unique circumstances of this offence and this offender which must dictate the outcome. [ 68 ] I have carefully considered Ms. Ford ’ s past and current circumstances.

I have considered her struggles with addiction and the possibility of a relapse. I am mindful of the impact of her incarceration, not only on Ms. Ford, but her children and parents. I have considered the cases submitted by counsel where conditional sentences have been found to be appropriate. [ 69 ] Notwithstanding all of the above, I cannot conclude, that a conditional sentence would adequately address the principles of general deterrence and denunciation required given the circumstances of this case.

This was a large fraud perpetrated against a government program designed to assist a disadvantaged segment of our society. It involved numerous, certainly hundreds, of individual transactions, which required a level of forethought and a degree of sophistication to implement and carry out. The transactions served to not only manipulate the prescribing history of several doctors, but served to create a grossly inaccurate and over-inflated drug history for numerous individuals. It appears that the various means of over-billing the program only ended when Ms.

Ford ’ s activities were discovered in March 2007. [ 70 ] Ms. Ford was able to perpetrate this fraud because Health Canada trusted her to electronically submit billings. She was able to create false oral prescriptions from physicians because of the trust placed in her by virtue of her profession. There are numerous victims of Ms. Ford ’ s fraud, namely taxpayers, physicians and First Nations patients. Given that 7800 tablets of Oxycocet went unaccounted for, under Ms. Ford ’ s watch, the negative community impact could be much wider. [ 71 ] To permit Ms.

Ford to serve a sentence in the community, to reside in her home, with conditions permitting her to carry out her academic pursuits as suggested by her counsel would, in my opinion, be inadequate deterrence to those who may, in future, find themselves in a position where they too, can help themselves to large amounts of public funds. In these circumstances, a conditional sentence, even with the most restrictive of conditions would not adequately denounce the commission of such offences. It would not, in my view, deter those individuals who have the wits and means to perpetrate similar offences.

House arrest may be a risk they would be willing to take for a substantial financial payoff. [ 72 ] I will note that the guilty plea, remorse, and personal struggles of Ms. Ford have served to reduce the custodial sentence I am about to impose. I have faith that Ms. Ford will not crumble, but will move forward with her life in a productive and positive fashion. Please stand Ms. Ford. [ 73 ] In relation to the three charges before the Court, I hereby sentence you on the offence of fraud under s.380(1) (

a) of the Criminal Code to a period of 12 months incarceration. Further, on the two counts under s.367 (

a) and s.368(1) (b), I sentence you on each to a six month period of incarceration. The three terms shall be served concurrently, and followed by a 12 month period of probation, on the following terms:

a) You shall keep the peace and be of good behavior;

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

c) You shall notify the Court or your 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;

d) You shall, within two working days of being released from your term of imprisonment, report to a probation officer, and continue to report thereafter, when required by the probation officer and in the manner so directed by him or her;

e) You shall abstain absolutely from the consumption of alcohol or other intoxicating substances and the consumption of drugs, except in accordance with a medical prescription;

f) You shall perform 120 hours of community service, over the 12 month period of probation; [ 74 ] In addition to the above, I order pursuant to s.738(1) of the Criminal Code that Ms. Ford make restitution in the amount of $322,634.00 to Health Canada, First Nations Inuit Health Branch, Non-Insured Health Benefits Program. [ 75 ] It would be my hope that while incarcerated, all reasonable efforts would be made to accommodate Ms. Ford ’ s participation in her distance education, which I understand is computer based. Ms. Ford, and her future students will undoubtedly benefit from the completion of her Master studies. J.