R. v. Baker, 2022 NSSC 229

SUPREME COURT OF Nova Scotia Citation: R. v. Baker , 2022 NSSC 229 Date: 20220805 Docket: CRH No. 502139 Registry: Halifax Between: Her Majesty the Queen v. Jessica Jacqueline Baker SENTENCING DECISION Judge: The Honourable Justice James L. Chipman Heard: March 3 and 4, 2022 in Halifax, Nova Scotia Written Decision: August 10, 2022 Counsel: Janine Kidd, for the Provincial Crown Quy Linh, for Jessica Baker By the Court (orally): Introduction [ 1 ] On March 24, 2022, I gave my decision – R. v. Baker , 2022 NSSC 86 – convicting Ms. Baker of these offences: 1.

That she between the 25 th day of January 2018 and the 27 th day of March 2018, at or near Dartmouth, Nova Scotia, did by deceit, falsehood or other fraudulent means, unlawfully defraud Gay MacKay of a sum of money, a total value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code . 2. AND FURTHER that she at the same time and place aforesaid, did unlawfully steal a sum of money of a total value exceeding $5,000.00, contrary to

section 334 (

a) of the Criminal Code . [ 2 ] A pre-sentence report (PSR) and Gladue report were ordered with the sentencing scheduled for July 5 th . On June 2 nd the Court received a letter from the Gladue Coordinator stating: The Mi’kmaw Legal Support Network (MLSN) received a referral for the completion of a Gladue Report on Jessica Baker.

Please be advised that the Gladue writer is requesting an addition 4 weeks from the sentencing date of July 5, 2022, to confirm Indigenous background and complete the report. [ 3 ] The Court convened an on-the-record conference call with the parties on June 15 th resulting in the initial sentencing date being adjourned until today. In the time since the Court received the following:

• PSR authored by probation officer, Jennifer Keeler; • Gladue report authored by lawyer, Robin Thompson; • Defence brief and sentencing authorities; and • Crown brief and sentencing authorities. [4] Today I received oral submissions from the parties and Ms. Baker’s helpful comments. Facts Upon Which Ms. Baker’s Finding of Guilt is Based [5] My findings in R. v. Baker are summarized in these paras.: [22] I carefully reviewed exhibit 1 as against the oral evidence and the Crown’s detailed closing argument. In short, I found thedocuments entirely buttress the Crown’s submission that Ms.

Baker e-transferred $10,447.00 from Ms. MacKay’s Scotiabank accountinto her Bank of Montreal account or to pay her bills over the course of the first three months of 2018. As testified to by Det. Cst.Murphy, she made 51 attempts and 48 went through. On the evidence, I find that only the first e-transfer (made on January 26, 2018, for$200.00) was (pre) authorized by Ms. MacKay. I find that each and every one of the subsequent e-transfers (beginning on January 29,2018 and ending on March 23, 2018) were fraudulently taken by Ms.

Baker. … [25] Having regard to the evidence and authorities I am of the overwhelming view that Ms. Baker committed fraud and theft in theamount of $10,247.00 (i.e., in excess of $5000.00). In this regard, I have calculated the amount based on the 47 unauthorized e-transfersover the course of January, February and March, 2018. The evidence causes me to conclude that after befriending her new neighbour in2017, Ms. Baker in early 2018 took advantage of the vulnerable Ms. MacKay. By dishonest act Ms. Baker deprived Ms.

MacKay of justover $10,000.00. [26] The amount in question – $10,247.00 – is a very significant sum of money for Ms. MacKay as it represents approximately half ofher annual income. Ms. Baker stole this money fraudulently after gaining Ms. MacKay’s trust. I find that Ms. Baker stole this moneyafter initially finding out Ms. MacKay’s confidential banking information when Ms. MacKay naively brought her iPad and debit card toMs. Baker. She consented to Ms. Baker transferring the initial $200.00 but also unknowingly provided her with her confidential bankinginformation. Ms.

Baker then surreptitiously used this information over a three-month period to fraudulently deprive Ms. MacKay of$10,247.00 through 47 unauthorized further e-transfers. … [28] In this case I find beyond a reasonable doubt that the accused intentionally e-transferred in excess of $5,000.00 from Ms.MacKay’s account fraudulently and without colour of right for her own use or benefit. The direct and circumstantial evidence provesthat Ms. Baker had specific intent to deprive Ms. MacKay of her property (funds in the amount $10,247.00). She used the money for herown use, thus depriving Ms.

MacKay of her use of approximately half of her annual income. The funds have not been paid back;accordingly, Ms. MacKay remains $10,247.00 out-of-pocket due to Ms. Baker’s fraudulent and without color of right e-transfers. Applicable Sentencing Regime [6] The offence of fraud over $5,000 contrary to s. 380(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (Code),carries a maximum punishment of 14 years imprisonment. The offence of theft over $5,000 contrary to 334(

a) of the Code with anindictable Crown election carries a maximum punishment of ten years’ imprisonment. [7] The offences of fraud and theft over $5,000 are secondary designated offences pursuant to s. 487.04(

a) of the Code, so theCourt has the discretion to impose a DNA order. The Kienapple Principle [8] Ms. Baker was convicted of fraud and theft over $5,000. The essential elements for each offence were made out. Theconvictions are the result of the same act. The parties agree and I find that the Kienapple principles apply such that Ms. Baker should besentenced on only one of the convictions as per para. 16 of R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729: If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in thesecond count, the situation invites application of a rule against multiple convictions…. [9] The Crown asks for count 2 s. 334(

a) to be judicially stayed and I hereby stay count 2. Criminal Record [10] Ms. Baker has incurred a criminal record over the past seven years that consists of convictions for both property offences andoffences against the administration of justice. Her JEIN record has nine criminal convictions that may be summarized as follows: • one conviction for fraud under $5,000 on December 10, 2015; • three convictions for failure to attend court: one on December 10, 2015, and two on November 10, 2020;

• two convictions for theft under $5,000 on July 4, 2017; and • three convictions for failure to comply with release conditions: two on January 4, 2021, and one on March 19, 2021. [ 11 ] Ms. Baker’s criminal record is not an aggravating factor in and of itself since she has already been punished for the offences. To increase her sentence merely because she has a prior record would be to punish her twice for the same behaviour.

Instead, her prior criminal record, as well as the fact that she failed to attend court and violated her release order multiple times while on release for the current offences, are important to consider in this sentence hearing because they help to determine Ms. Baker’s normative character. [ 12 ] The offender’s past property offences and her offending behaviour while on release for the current offences assist in determining if a pattern of conduct following Court-imposed punishments and deterrent or rehabilitative sentences emerges from this activity.

If so, then such a pattern may help predict the prospects for future rehabilitation, and the need for a greater or lesser focus on specific and/or general deterrence in the sentence ultimately imposed by the Court: see R. v. Wright , 2010 MBCA 80 , as cited with approval by Beveridge, J.A. in R. v. Mauger , 2018 NSCA 41 at paras. 65-67 ; see also R. v. Robinson , 2021 NSPC 20 per Buckle, PCJ at para. 38. Aggravating Factors [ 13 ] Parliament has indicated what may constitute aggravating circumstances for fraud cases in s. 380.1(1), and the circumstances relevant to Ms. Baker’s matter are: (

a) The amount of this fraud was significant; $10,247.00 was taken from Gay MacKay which represents over half of her annual income – s. 380.1(1)(a). (

b) Ms. Baker used the information that she gained from helping Ms. MacKay with an e-transfer on January 26, 2018, to surreptitiously transfer money from Ms. MacKay’s bank account to her bank account through 47 unauthorized e-transfers over an almost two-month period. This would indicate that there was some degree of planning by Ms. Baker – s. 380.1(1)(a). (

c) This fraud went on for about two months, from January 29, 2018, to March 23, 2018 – s. 380.1(1)(a). (

d) Ms. Baker took advantage of Ms. MacKay who was vulnerable. (

e) The bank did not reimburse Ms. MacKay for this financial loss, so she is out-of-pocket for the funds that Ms. Baker took. (

f) This fraud had significant impact on Ms. MacKay because of her age, health and financial situation – s. 380.1(1)(c.1). Mitigating Factors [ 14 ] The following mitigating factors are applicable to this case: (

a) The steps that Ms. Baker has taken to address the root causes of her behaviour. (

b) The support system that Ms. Baker has developed to help her move forward as a productive member of society. [ 15 ] I do not accept, as suggested by the Defence, that at 38 years of age Ms. Baker ought to be considered a youthful offender. [ 16 ] The PSR and the Gladue report are somewhat contradictory with respect to the courses that Ms. Baker has reportedly taken, as well as the support system that she has reportedly developed. Nevertheless, her counsel recently provided four certificates of achievement confirming that she has made good use of her most recent custodial time.

Further, her support network was addressed by her counsel and spoken to by Ms. Baker today. In short, I am satisfied that she has taken steps to improve both her family and community support system. The Circumstances of the Offender PSR [ 17 ] The main issues in Ms. Baker’s life when she committed these offences and while these offences have been before the courts are her drug abuse and reported mental health issues. [ 18 ] Ms. Baker told the report writer that she “basically went to jail because of her drug use and her mental illness.” Ms.

Baker was remanded in custody after failing to attend court for both the preliminary inquiry and trial for this matter and being at large for an extended period, as well as failing to comply with the conditions of her release multiple times. [ 19 ] She reports being diagnosed with mental health conditions. She also said that she “suffered from Agoraphobia and barely left her home”, and that her “deteriorating mental health was the cause for her to have two nervous breakdowns in the past.” [ 20 ] Ms.

Baker admitted that she started abusing her medication for mental health conditions when she was 32 years old, and she suggested that that led to her using cocaine and smoking a lot of cannabis. [ 21 ] The report writer says that “in discussing the matters before the Court, the subject did not accept responsibility for the charges and denied any theft or fraud was committed intentionally.” Ms. Baker was convicted after trial, so her refusal to accept responsibility

and lack of remorse are not aggravating factors. This does, however, cause the Court concern about whether Ms. Baker is truly addressing the root causes of her behaviour which led to her committing this offence and, therefore, her potential for rehabilitation. Gladue Report [ 22 ] Ms. Baker was unable to provide collateral resources due to what the report writer described as “extensive family breakdown” and the refusal of her mother and most of her siblings to participate. Ms.

Baker is a French Cree Métis woman with ancestry through her mother Gail Bainbridge who was born in Laval, Quebec. [ 23 ] Based on what she told the Gladue report writer, Ms. Baker did not accept responsibility for the offences [ 24 ] The report writer says that: Jessica has made every effort to participate in programs that will “set myself up for success.” She has taken courses in Substance Abuse, Anger Management, Trauma & Recovery, the Twelve-Step program as well as one for Hustling.

She has a lot of guilt about being away from her children and trying to “parent from afar.” Jessica is more than willing to participate in an in-treatment program for drug addiction if possible. She has asked to be set up with the nurse from the Mobile Outreach Mental Health to ensure her medication is available. [ 25 ] The following Gladue factors were identified: 1. Jessica Baker is a woman of Cree Métis descent. 2. Jessica Baker has demonstrated a willingness to address the underlying factors that contributed to the incident. 3.

There is strong support and culturally appropriate treatment available for Jessica Baker, including counselling and cultural healing. 4. That Jessica Baker has personally experienced the adverse impact of many factors continuing to plague Aboriginal communities since colonization, including: a. Family deterioration b. Substance abuse personally and in the immediate family c. Violence in the family d. Physical and emotional abuse e. Sexual abuse f. Low income and unemployment due to lack of education g. Involvement with Family and Children’s services h. Current poverty i. Overt and covert racism j.

Loss of identity, culture, and ancestral knowledge The Purpose and Principles of Sentencing [ 26 ] Sections 718 and 718.2 of the Code contain the fundamental purpose and principles of sentencing.

Section 718 states as follows: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 27 ] Additional principles of sentencing are outlined in ss. 718.01 to 718.2 . The fundamental principle of sentencing is contained in s

718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 28 ]

Section 718.2 contains the following relevant factors: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 29 ]

Section 380.1(1) contains the following aggravating factors that the court should consider when determining an appropriate sentence for fraud and other related offences: 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; … (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; Pre-Trial Custody Credit [ 30 ] Ms. Baker is entitled to credit for the time that she has served on remand. Ms. Baker has been in custody in relation to these matters for a total of 317 days; this calculation is based on the following data: • Ms. Baker was arrested and released on a police Undertaking on October 24, 2018 • Ms.

Baker failed to attend the September 11, 2019, preliminary inquiry for this matter and an arrest warrant was issued • Ms. Baker was in custody from June 10 to 22, 2020 = 13 days remand credit • Ms. Baker was released on a release order on June 22, 2020 • Ms. Baker’s release order was varied on January 21, 2021, but it was never revoked while she was in custody on failure to attend and failure to comply charges • Ms. Baker’s release order was varied again on January 29, 2021, but it was never revoked while she was in custody on failure to attend and failure to comply charges • Ms.

Baker’s release order was revoked on February 22, 2021, and she was in custody from February 22 to May 10, 2021 = 78 days o Ms. Baker pled guilty to a failure to comply charge during this time and used her remand credit from February 19 to March 19, 2021 o She used her remand time from February 22 to March 198 = 26 days o Ms. Baker only has 52 days remaining of the 78 days that she was in custody between February 22 and May 10, 2021 • Ms. Baker failed to attend the October 12 (and 13), 2021 trial for this matter and an arrest warrant was issued • Ms.

Baker has been in custody on this matter from November 27, 2021, until this sentencing hearing on August 5, 2022 = 252 days [ 31 ] Ms. Baker’s 317 days of custody increases to 476 days custody at the enhanced rate of 1.5 to 1. Her 476 days of custody at the enhanced rate of credit is the equivalent of almost 16 months. Positions of the Parties [ 32 ] In the Crown brief they submit as follows: Crown This offence was grave; Ms. Baker took $10,247.00 which is almost half of the vulnerable Ms. MacKay’s annual income, and it was never recovered or reimbursed. Ms.

Baker has a high degree of responsibility because of her 47 surreptitious e-transfers over a 2-month

period – she had many opportunities for a sober second thought. The Crown submits that a sentence of 12 months jail, followed by 36 months’ probation would address the minimal mitigating, significant aggravating, and Gladue factors present. It would also reflect the purpose and principles of sentencing, and it would be an appropriate sentence for this offence and this offender in these circumstances. The 36 months probation would give Ms. Baker the maximum amount of time to benefit from the rehabilitative conditions recommended by the Gladue report writer.

The Crown seeks the following ancillary orders: • A s. 380.2 CC prohibition order for a period of 5 years, • A discretionary DNA order pursuant to s. 487.04(

a) CC The Crown also seeks a s. 738 CC restitution order for Gay MacKay. As per our Court of Appeal in R. v. Kelly , 2018 NSCA 24 , this Honourable Court must consider Ms. Baker’s ability to repay the $10,247 that she took from Ms. MacKay. The Crown would seek a restitution order for the maximum amount that Ms. Baker is able to re-pay Ms. MacKay who has never recovered the money taken by Ms. Baker. The Crown would need to hear from defence counsel about what ability Ms.

Baker has to pay restitution. [ 33 ] Today, the Crown asked that the Court consider ordering at least a nominal amount of restitution to be paid by Ms. Baker. Defence [ 34 ] The Defence argued for the following sentence in their brief: Ms.

Baker is asking that your Lordship find that a sentencing range of eight to twelve months’ incarceration, before credit for remand time, is a fit and appropriate disposition … [ 35 ] Today, the Defence altered their position to agree to 12 months incarceration. [ 36 ] The Defence accepts that the s. 380.2 prohibition and 487.051(3) DNA orders are appropriate, along with the proposed 36 months probation. As to the restitution order, the Defence submits that Ms. Baker is not in a financial position to pay, stating: Our position is that Ms.

Baker has been in custody for 10 months and will have to rebuild her life when she gets out. She has applied for Assistance, and if she is to receive it, she would get approximately $1300 a month to live on while supporting two kids and in hopes of going to NSCC this year. Analysis and Disposition [ 37 ] The Court in R. v. Surette , 2019 NSPC 46 noted at paras. 73 , 74 and 78 that: 73 While there appears to be a wide range of dispositions for these types of offences, the aggravating circumstances surrounding the present offences necessitate a strong emphasis on the principles of denunciation and deterrence.

Sections 718 (

a) and (

b) of the Criminal Code identify denunciation and deterrence as appropriate objectives of sentencing.

Where the primary objective of sentencing is denunciation, the sentence must publicly condemn the offender's conduct. 74 Where, as here, the primary purpose of sentencing is to deter and denounce this type of behaviour, the Court must ensure its sentences are perceived by the public as strong condemnations of this type of behaviour. … 78 While the paramount sentencing objectives in the present case are denunciation and deterrence, I must not lose sight of the prospect of rehabilitation. [ 38 ] As the case law demonstrates, the overriding principles applicable to Ms.

Baker’s matter are denunciation and deterrence, with particular emphasis on general deterrence, with a view towards the prospect of rehabilitation. [ 39 ] The legislated sentencing range for fraud over $5,000.00 ranges from a suspended sentence to 14 years imprisonment. However, this is not the sentencing range for the circumstances of this crime and this offender. As was said by the majority of our Court of Appeal in R. v.

Phinn , 2015 NSCA 27 at para. 67 : 67 It is settled law, but perhaps bears repeating, that when it comes to sentencing, one does not establish the "range" for an offence by traversing the distance or gap between "zero" and the maximum penalty expressed by Parliament in the Criminal Code . Such a divide between "nothing" and the theoretical upper limit fixed by statute is a meaningless orbit. A much more refined and particularized trajectory is needed.

To fulfil their responsibilities in the often very difficult task of crafting a fit and proper sentence, trial judges look for guidance by seeking meaningful precedents which have some similarity, relevance and application to the circumstances before them. That is precisely the point made by Justice Bateman in R. v. Cromwell , 2005 NSCA 137 when she said: [26] ...In my opinion the range is not the minimum to maximum possibilities for the offence but is narrowed by the context of the offence committed and the circumstances of the offender. ...

The actual punishment may vary on a continuum taking into account aggravating and mitigating factors, the remedial focus required for the particular offender and the need to protect the public. This variation creates the range. To like effect see R. v. A.N., 2011 NSCA 21 at para 34 ; and R. v. E.M.W.(No. 2) , 2011 NSCA 87 at para 29 . [ 40 ] Although the context of the offence and the circumstances of the offender will be the most important factors in determining an

appropriate range of sentence in an individual case, the principle of parity found in s. 718.2 (

b) must also come into play. To that end, sentencing courts, in studying fraud cases across the country, will often take note of a range within which many similar cases will fall. On the other hand, as our Court of Appeal observed in R. v. Doyle , [1991] N.S.J. No. 447 (A.D.) ; application for leave to appeal dismissed [1992] S.C.C.A. No. 18, at page 8 of 9 (QL): … Comparisons with other cases is a difficult exercise. Attempts to seek similarities with or differences from other murders committed by other people can be very frustrating and counter productive.

We are not dealing with an exercise of reviewing "comparables" such as is done in a property appraisal. In exercising the discretion under s. 744 of the Code , other cases are no more than a rough guide for the sentencing judge in identifying the types of aggravating or mitigating circumstances that other courts have relied on as relevant in applying the guidelines. … [ 41 ] In all the circumstances, I find that the Crown’s recommendation of 12 months jail time, 36 months probation and the s. 380.2 and s. 487.04(

a) orders, all ultimately agreed upon by the Defence, is just and reasonable. As for the s. 738 restitution order, I am not at all convinced that Ms. Baker has any ability to re-pay Ms. MacKay. This is most unfortunate, but the reality of this single mother’s situation. In the result, I decline to grant this ancillary order. [ 42 ] Given Ms. Baker’s time served of 476 days (at the enhanced rate, which I accept), she has completely served (and then some) the 365 days incarceration. The 36 months probation applies on a go forward basis, as do the two granted ancillary orders. Chipman, J.