Citation:      R. v. McCook                                                              Date:           20150122

2015 BCPC 0001                                                                          File No:                     36745

                                                                                                        Registry:      Prince George

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

THERESA MARGARET McCOOK

 

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE REGIONAL ADMINISTRATIVE

JUDGE M. J. BRECKNELL

 

 

 

 

 

Counsel for the Crown:                                                                                                      J. Bird

Counsel for the Defendant:                                                                                                F. Fatt

Place of Hearing:                                                                                         Prince George, B.C.

Date of Hearing:                                                                                          September 19, 2014

Date of Judgment:                                                                                            January 22, 2015

INTRODUCTION

 

SENTENCING POSITIONS

CIRCUMSTANCES OF THE OFFENCE

a)         Ms. Carpenter: 18 invoices and bank transactions totaling $153,227.00;

b)         Ms. Tashoots: 19 invoices and bank transactions totaling $150,625.00;

c)        Mr. Cresswell: 13 invoices and bank transactions totaling $102,432.00;

d)         Mr. McGillivray: 10 invoices and bank transactions totaling$39,550.00;

e)         Mr. McCook: 37 invoices and bank transactions totaling $247,026.90;

f)          Mr. Abou: 6 invoices and bank transactions totaling $26,709.50;

g)         Mr. Murray: no invoice and a bank transaction totaling $5,000.00.

 

MS. MCCOOK'S CIRCUMSTANCES

            Younger Years

            Employment History

            Family Situation

USE OF THE STOLEN FUNDS

STATEMENTS AND REPORTS

Victim Statement

While we in no way condone the behaviour of Teresa, our conclusion is that the impact on our community in particular with respect to the financial aspect is relatively small. At the time, limited capacity prevented anyone from being aware of the problem given that it happened over a number of years, the deficits created either went unnoticed or for all intents and purposes, were supported. Financial statements were rarely presented to the community and internal controls were such that the ability to take advantage of weaknesses within the system was enabled. The Kwadacha Nation is proud to say that we've taken steps to prevent this type of thing from happening in the future.

Since this was brought to the attention of the community some three years ago, any ill will felt by the majority of people in this community has for the most part been forgiven. Teresa has had to live face-to-face and next door to family and community members for a number of years since this became public knowledge; she's been subjected to ridicule, has been judged and quietly led a life keeping much to herself. Although Teresa betrayed our trust, we as a community over time have managed to forgive her and have in effect "moved on". We feel that a severe punishment at this time may ultimately do more harm than good from a community standpoint. Teresa is not a bad person; she is well-liked in the community and is part of a large network of family and friends, many of whom are positive role models. Her mistake was a result of an addiction for which we would hope to see her seek counselling.

Our position is that whatever Teresa took away from this community, she could make up for by making a contribution to our community as retribution; perhaps something in Home Care, an area with which she is not only familiar, but is very good at. Would also support her acting as a spokesperson with community members and in particular our youth, on a gambling addiction.

 

Pre-Sentence Report

 

Ms. McCook acknowledges that she was acting in a dishonest manner when she coerced and manipulated her family and friends to assist in the process of misappropriating the funds. Ms. McCook expresses extreme remorse for her actions and further iterates she is ashamed of herself because of her behaviours and feels she has disappointed her Elders. Ms. McCook further describes herself in negative terms, stating that "[she is] not a good person" and that she is angry with herself. Ms. McCook states she, at the time of her offending behaviour, did not see what she was doing as stealing, but rather was borrowing money with the intent to repay the funds.

It appears from the information that Ms. McCook shared, that her remorse regarding the offence was not generated by her behaviour, but rather as a result of being caught. Furthermore, Ms. McCook reiterated to this writer on multiple occasions that she does not think of her behaviour as stealing or wrong, but rather that she was just borrowing the money. Ms. McCook expresses that the community members of the Kwadacha Nation experienced no negative recourse as a result of her actions as  more funding would now be made available to the community through the Federal Government. Moreover, when asked directly how the community could have benefited from influx of nearly three-quarters of a million dollars Ms. McCook was unable to offer insight as to the potential benefit this money might have provided to the community.

 

The Kwadacha Nation offers several options for First Nations focused counselling and healing. There are counsellors within the community that will be able to provide counselling with a First Nations approach and focus. Additionally, there are opportunities to attend and participate in a restorative program within the community. Furthermore, the Chief and Counsel (sic) of the Kwadacha Nation are supportive and welcoming to a restorative approach to sentencing that would allow for Ms. Cook to create a balance that incarceration would prevent.

 

Gladue Report

 

1.         Theresa is a Tahltan woman from the Kwadacha Nation of Fort Ware, BC.

2.         Theresa has expressed a willingness to address the underlying factors that have contributed to matters before the court.

3.        Theresa’s children have indicated that they support her.

4.        The Kwadacha Nation has indicated that they support her.

5.        A number of adverse impact factors that affect Aborignals in general are present in Theresa’s personal life, including:

a)        Alcohol abuse (mother, father, brothers)

b)        Domestic violence (she frequently witnessed physical violence by her father and her older brothers)

c)         Loss of Aboriginal culture and loss of language (although she was forbidden to speak her language in school, Theresa has retained her language).

d)        Loss of traditional teachings (Theresa reported that speaking of her traditional beliefs and teachings while in school was ridiculed by the nuns but she has retained most and teaches them today to her grandchildren)

e)        Reported sexual abuse as a child (Theresa alleged that she was sexually molested by a neighbor’s son)

f)         Witnessing sexual violence (Theresa reported that she witnessed an attempted sexual assault on her grandmother by her father)

g)        Suicide attempt (Theresa’s older brother attempted suicide by shooting himself in the presence of her children)

h)        Suicide attempt (Theresa reportedly attempted suicide when she was 15 years old by ingesting a bottle of pills)

i)         Low educational achievement (Theresa completed Grade 10             and did not achieve any further education until recently).

a)         is a youth,

b)         has a lengthy record,

c)         faces an indictable charge (excluding first degree murder),

d)         faces a federal prison sentence,

e)         has mental health, addiction and/or FASD issues,

f)          is an Indian residential school survivor or former foster child,

g)         has community and family support,

h)       has a bail hearing.

 

60…In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under as. 718.2 (e).

 

            [50] It is clear from the decision in Ipeelee that when sentencing an Aboriginal it is required that a Gladue report be prepared. We find that notwithstanding that there was no formal Gladue report per se prepared in this case, virtually all the information that would have been contained in a Gladue report was before the sentencing judge in one form or another. The sentencing judge took cognizance of it; therefore, in substance a Gladue report was before him. While in all future sentencing hearings involving Aboriginals, a Gladue report must be tendered, we feel that on the facts of this case, as the pertinent information was before the sentencing judge, that it would elevate form over substance to allow the appeal on the basis that a formal Gladue report had not been tendered at the sentencing hearing.

 

            [8] When sentencing an aboriginal offender, a judge must consider, among other things, the unique systemic or background factors which may have played a part in bringing that offender before the court: Ipeelee at para 59. We note that, in this case, the sentencing judge may well have already been familiar with the offender and his circumstances. However, sentencing judges have a duty to address explicitly an aboriginal offender’s circumstances, and the systemic and background factors that contributed to those circumstances (cite omitted) must explain whether those circumstances are relevant to determining a fit sentence by affecting the appellant’s degree of blameworthiness for these offences: (cite omitted) furthermore, such consideration and explanation must be informed by a Gladue report:

[9] It was therefore an error to sentence the appellant without having a Gladue report and without explicitly taking its substance into account in assessing a fit sentence for the appellant…..

 

THE LAW

            Criminal Code

 

a)            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.

b)            718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

c)            718.2 A court that imposes a sentence shall also take into consideration the following principles:

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

(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;

(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.

 

c)         721(1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under section 730.

            (2) The lieutenant governor in council of a province may make regulations respecting the types of offences for which a court may require a report, and respecting the content and form of the report.

            (3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

(a)       the offender’s age, majority, character, behaviour, attitude and willingness to make amends;

(b)       subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Youth Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament;

(c)       the history of any alternative measures used to deal with the offender, and the offender’s response to those measures; and

(d)       any matter required, by any regulation made under subsection (2), to be included I the report.

            (4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2).

 

d)        742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of  supervising the offender’s behaviour in the community, order that the under section 742.3, if

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

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

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

 

            Case Law

 

            Crown

            Aboriginal Offenders

a)       R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688

 

[78]   In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

[79]   Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

           

b)         R. v. Ipeelee, 2012 SCC 13

69       Certainly sentencing will not be the sole-or even the primary-means of addressing Aboriginal overrepresentation in penal institutions. That does not detract from a Judge's fundamental duty to fashion a sentence that is fit and proper in the circumstances of the offence, the offender, and the victim.

…

72        ...The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

 

73       First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" (para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, [page478] after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment

 

c)         R. v. Wells, 2000 SCC 10

 

44       Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33). Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one.

 

45       Whether a crime is indeed serious in the given circumstances is, in my opinion, a factual matter that can only be determined on a case-by-case basis.

 

            Fit and Just Sentence

d)         R. v. Patrick 2006 BCSC 1284

[39]      The jurisprudence clearly establishes that the paramount principle of sentence in cases involving large-scale fraud, by persons in a position of trust, is that of general deterrence. That is because in most instances, crimes of this nature are perpetrated by individuals who are of good character and who have no criminal record. It is these very characteristics that qualify them for positions of trust. Ms. Patrick also possessed those characteristics.

 

e)         R. v. Chernoff, 2009 BCPC 38

 

f)          R. v. Elliott, 2010 BCPC 83

19.       Our courts have routinely recognized this reality when sentencing offenders who engage in crimes of this nature and consequently have emphasized that the paramount objective is the deterrent effect which the sentence will have on others…

What the authorities make clear is that the purpose of incarcerating these offenders is not to protect the community from any danger posed by the particular offender, but to protect the community from the danger posed by those who may be inclined to engage in similar conduct.

 

g)         R. v. Marr 2008 BCPC 152

32… in cases of this kind incarceration is more likely to affect general deterrence because those who commit these kind of offences are generally of good character and will be deterred by the prospect of incarceration.  Also, these authorities make it very clear that general deterrence is to be given the most weight in sentencing.

 

h)       R. v. Quinn unreported, April 15, 2005 New Westminster Registry No.          X0066517 – 2 BCSC

 

i)          R. v. Beggs 2003 BCCA 101

            Danger to the Community

 

j)          R. v. Pierce (1997) 1997 CanLII 3020 (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.)

 

41.       There will also be a danger to the community if the sentence imposed is not of a nature to deter others from conduct analogous to that ... of the accused. [emphasis in original]

 

42.       I am inclined to the view that the use of the terminology "would not endanger the safety of the community," as used in s. 742.1(b) of the Code, includes both the notion of risk from the offender himself or herself, and, endangerment of the community in the broader sense of dilution of the general deterrence principle to the point of eliminating any deterrent warning to like-minded individuals considering commission of the offence in question. That a safe community is advanced by the deterrence of others from committing the offence in question is clear, in my view, from a reading of s. 718 itself.

 

48       I would, however, refuse the application to permit the appellant to serve the sentence in the community. The abuse of a position of trust or authority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines in s. 718.2. This factor has traditionally drawn a severe custodial term even with first offenders. I do not believe that this court should exercise his discretion in favour of having the appellant serve her sentence in the community where, as here, the trial Judge has clearly stated his concerns as to how a noncustodial term would be viewed by the community.

 

76        …The phrase "would not endanger the community" should be construed broadly, and include the risk of any criminal activity. Such a broad interpretation encompasses the risk of economic harm.

 

Applicable Sentencing Principles

 

k)         R. v. N.C.D.  2003 BCSC 537

 

[18]      In R. v. Pierce, the Ontario Court of Appeal recognized that thefts or frauds, involving breach of trust, usually involve people who are first time offenders of good reputation and who pose little if any future risk to the public. That is why they are in a position of trust. The fact that they have abused the position is the reason why they will not be able to obtain a similar position and therefore do not pose a threat of reoffending.

 

l)         R. v. Reid, 2004 YKCA 4

8.         What the authorities make clear is that the purpose of incarcerating these offenders is not to protect the community from any danger posed by the particular offender, but to protect the community from the danger posed by those who may be inclined to engage in similar conduct.

 

m)       R. v. Warner, [1999] B.C.J. No. 1107 (B.C.P.C.)

 

n)       R. v. Spiller, 1969 CanLII 950 (BC CA), [1969] 4 C.C.C. 211  

 

214.    She used her apparent good character to enable her to perpetrate her crime; now her counsel wants to use it in mitigation of penalty!

 

Defence

a)         R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688

 

61        Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned.  Aboriginal people are overrepresented in virtually all aspects of the system.  As this Court recently noted in R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 58, there is widespread bias against aboriginal people within Canada, and “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system”.

62 Statements regarding the extent and severity of this problem are disturbingly common.  In Bridging the Cultural Divide, supra, at p. 309, the Royal Commission on Aboriginal Peoples listed as its first “Major Findings and Conclusions” the following striking yet representative statement:

The Canadian criminal justice system has failed the Aboriginal peoples of Canada ‑‑ First Nations, Inuit and Métis people, on‑reserve and off‑reserve, urban and rural ‑‑ in all territorial and governmental jurisdictions.  The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non‑Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.

63        To the same effect, the Aboriginal Justice Inquiry of Manitoba described the justice system in Manitoba as having failed aboriginal people on a “massive scale”, referring particularly to the substantially different cultural values and experiences of aboriginal people: The Justice System and Aboriginal People, supra, at pp. 1 and 86.

64        These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it.  The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.  The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.  It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 (e), intended to attempt to redress this social problem to some degree.  The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

65        It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.  The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.  It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders.  There are many aspects of this sad situation which cannot be addressed in these reasons.  What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada.  Sentencing judges are among those decision‑makers who have the power to influence the treatment of aboriginal offenders in the justice system.  They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

 

E.        A Framework of Analysis for the Sentencing Judge

 

 (1)      What Are the “Circumstances of Aboriginal Offenders”?

 

66        How are sentencing judges to play their remedial role?  The words of s. 718(e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non‑aboriginal offenders.  The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

(A)  The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B)  The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

 

(a)      Systemic and Background Factors

67        The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.  Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.  These and other factors contribute to a higher incidence of crime and incarceration.  A disturbing account of these factors is set out by Professor Tim Quigley, “Some Issues in Sentencing of Aboriginal Offenders”, in Continuing Poundmaker and Riel’s Quest (1994), at pp. 269‑300.  Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp. 275-76) that “[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment.  When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail.”

68        It is true that systemic and background factors explain in part the incidence of crime and recidivism for non‑aboriginal offenders as well.  However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.  Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.

69        In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender.  While background and systemic factors will also be of importance for a judge in sentencing a non‑aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts.  In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.  In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

b)         R. v. Ipeelee, 2012 SCC 13

 

70        Closely related to the background and systemic factors which have contributed to an excessive aboriginal incarceration rate are the different conceptions of appropriate sentencing procedures and sanctions held by aboriginal people.  A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community.  The aims of restorative justice as now expressed in paras. (d), (e), and (f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders.  However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice.  This tradition is extremely important to the analysis under s. 718.2(e).

 

c)         HMTQ v. Wilson 2003 BCSC 414

 

d)         R. v. Keatley 2009 BCPC 249

e)         R. v. Houde 2005 BCPC 632

f)          R. v. Millard and Walls unreported, March 8, 2007 Prince George Registry No.             18826 BCSC

 

g)         R. v. Morrison 2012 BCSC 155

79.       In the case of Mr. Morrison, the aggravating factors are: he was in a position of trust which he breached repeatedly over a period of three years; his actions led to the theft of over $900,000 of public funds earmarked for two non-profit organizations dedicated to the advancement of First Nation’s interests and autonomy. The plundering of the organizations destroyed those organizations and caused the loss of jobs of innocent people and damage their careers and reputations. The benefit of the organization was lost to the greater community and the actions inevitably erode public confidence in such undertakings.

 

94.       I do accept, however, that the offender Wells’ offending is not unrelated to his aboriginal status or the conditions which have affected him, although it is necessary to note, as with the offender Morrison, that his offending was not a one-time act borne out of need or an uncontrolled impulse. Rather, it was a premeditated and protracted plundering of non-profit organizations, apparently motivated by greed.

 

SUBMISSIONS

 

            Crown

 

Aggravating Factors

 

a)        Ms. McCook was in a position of trust;

b)        She stole a significant amount of money;

c)         There appears to be little chance of any restitution;

d)        There was a high degree of pre-meditation;

e)        The scheme had a high degree of sophistication, which was carried out over time;

f)         Ms. McCook is obviously intelligent and has business knowledge and acumen, which she put to a criminal purpose;

g)        The money taken was earmarked for the improvement of the circumstances of members of the Kwadacha Nation.

 

            Mitigating Factors

 

h)        Ms. McCook provided an early and full confession;

i)         She entered a Guilty plea thereby avoiding what would have been a lengthy and complicated trial;

j)         Ms. McCook is remorseful.

 

a)       This is a serious crime given that $724,570.40 was taken.  With a theft of this size, the case law sets out the sentence should be significantly longer than two years;

b)       Gladue states that the more serious an offence is “the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.”

c)         The goals of denunciation and deterrence cannot be met with a conditional sentence order.  The case law states that there is a danger to the community if the sentence imposed is not of a nature to deter others from conduct analogous to that of the accused;

d)       With Aboriginal offenders, Gladue and Ipeelee make the connection between their background and their moral blameworthiness.  A person raised in a violent environment may have less moral culpability for a crime of violence.  But the present case is a sophisticated offence of greed, for personal gain;

e)       Gladue addresses the issue of overrepresentation of First Nations people in prison.  Gladue is one of many facets that our society is using to address this problem.  There are also many programs and resources which attempt to further this cause.  It is from some of those very programs that Ms. McCook took the money.  Consider the descriptions of the programs that Ms. McCook stated were being undertaken.  People were led to believe that certain programs were being provided.  They are exactly the kinds of programs that are contemplated by the Supreme Court of Canada in Ipeelee;

f)         There are several potential types of victims arising from the circumstances of this case including the Kwadacha Nation which did not get the programs that were applied for, the members of the Kwadacha Nation who missed out on the programs that should have been offered, the Government which paid money expecting services to be provided and citizens of Canada who expect  government funding for programs to be utilized to help those in need particularly in the circumstances of many First Nations.

g)        Ms. McCook did not cease her thefts until she was confronted.

 

Defence

a)         Information gathered from his interviews of Ms. McCook;

b)         Information detailed in the Gladue Report;

c)         Information set out in the Pre-Sentence Report.

 

a)            An analysis based on Gladue requires consideration of a particular native person in particular circumstances.  Aboriginal people have some unifying factors but individuals from different First Nations have very different cultural experiences ,

b)            In English law theft is a very serious matter because property rights are considered very important.  But there are understandable differences between the English law view and that of First Nations people with regard to certain types of crimes based on their different historic cultural perspectives.  The Court must examine the situation in light of those differing cultural perspectives,

c)            Ms. McCook’s present situation is shaped by the circumstances of her upbringing including familial alcohol abuse, the effect of day school run by the Catholic Church which attempted to kill the culture and language she been raised in, and the fact that having parents from two different First Nations left her in the position of not fitting in in the community where she was raised,

d)            First Nations people have been at the bottom level of Canadian society for many generations, treated as second-class citizens and had their cultural identity and language suppressed for many years to the point that it is hard to measure how that might affect an individual overtime ,

e)            Ms. McCook's gambling was initially recreational but as she began to rely on it as a way of escaping her personal situation it became more and more problematic for her particularly when she became more involved in borrowing money from loan sharks.  Ms. McCook did not "profit” from the gambling; she was not buying expensive gifts or living a lavish lifestyle.  She was not happy and knew that what she was doing was wrong.  She was not proud of herself but like any addict could not control it,

f)            Although initially angered the people of the Kwadacha Nation  have come to forgive Ms. McCook  and are no longer angry with her  and if the people of Canada are angry about her actions then they are racists ,

g)            Ms. McCook's present duties including working as a medical office assistant and community health representative are greatly needed in Kwadacha,

h)            the Kwadacha Nation has a Restorative Justice Coordinator who is capable of supervising Ms. McCook's sentence if served in in the community and could ensure that she provided assistance to the community in various ways,

i)              Ms. McCook has many family members who depend upon her in Kwadacha including some of her adult children, the child that still resides with her, and many grandchildren who she sees on a daily basis,

j)              any restitution ordered to be paid should be in a limited amount that can be afforded by Ms. McCook.

 

DISCUSSION

a)       is a sentence of incarceration required and if so should it be for more or less than two years?;

b)       if incarceration is to be for less than two years, need it be served in an institution or can it be served in the community?

 

a)            Ms. McCook utilized her position of trust to steal a very significant amount of money,

b)            Ms. McCook utilized her business knowledge to plan and then execute the thefts over a significant period of time only  ceasing activities when found out,

c)            Ms. McCook duped family and friends into assisting her in her criminality,

d)            Ms. McCook's actions deprived, for a period of time, the Kwadacha Nation and its citizens of the benefit of the funds.

 

a)            Ms. McCook provided an early and full confession  when confronted and has not impeded the investigation  of her criminal behaviour,

b)            Ms. McCook entered a guilty plea,  which  although  it took time to complete was always her intention,  thereby relieving the Crown  and the taxpayers of incurring the cost for a very lengthy and complicated trial ,

c)            Ms. McCook is genuinely remorseful ,

d)            Ms. McCook has been forgiven by one entity that has suffered a direct loss  as a result of her actions; the Kwadacha Nation.

 

            81  First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing Judge.  The decision of the Alberta Court of Appeal in R. v. Poucette provides one example.

 

            82  This judgment displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples.  It also imposes an evidentiary burden on offenders that is not intended by Gladue.

 

a)            the Crown recognizes that the Kwadacha Nation suffered the financial loss by asking the Court to make the Restitution Order in its favour , and

b)            It was the citizens of the Kwadacha Nation that suffered the disruption in services as a result of Ms. Mc Cook’s criminal behavior.

           

            (i)        Denunciation

            102           Denunciation is the communication of society's condemnation of the offender's conduct.  In M. (C.A.), supra, at para. 81, I wrote:

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.  As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.  That said, a conditional sentence can still provide a significant amount of denunciation.  This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.  I will discuss each point in turn.

            103           First, the conditions should have a punitive aspect.  Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed.  As stated above, conditions such as house arrest should be the norm, not the exception.  This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs.  Of course, there will need to be exceptions for medical emergencies, religious observance, and the like. 

            104           Second, although a literal reading of s. 742.1 suggests that a conditional sentence must be of equivalent duration to the jail term that would otherwise have been imposed,  I have explained earlier why such a literal interpretation of s. 742.1 should be eschewed.  Instead, the preferred approach is to have the judge reject a probationary sentence and a penitentiary term as inappropriate in the circumstances, and then consider whether a conditional sentence of less than two years would be consistent with the fundamental purpose and principles of sentencing, provided the statutory prerequisites are met.  This approach does not require that there be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed.  The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. [cites omitted]

            105           The stigma of a conditional sentence with house arrest should not be underestimated.  Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.   In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.

            106           The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served.  As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.  However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. 

            (ii)        Deterrence

            107           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. [cite omitted]  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.

            (iii)       Separation

            108           The objective of separation is not applicable in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing because it is a prerequisite of a conditional sentence that the offender not pose a danger to the community.  Accordingly, it is not necessary to completely separate the offender from society.  To the extent that incarceration, which leads to the complete separation of offenders, is warranted in circumstances where the statutory prerequisites are met, it is as a result of the objectives of denunciation and deterrence, not the need for separation as such.

            (iv)      Restorative Objectives

            109           While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender.  As this Court held in Gladue, supra, at para. 43, “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction”.  The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism.  Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above.

            110           I will now consider examples of conditions that seek to vindicate these objectives.  There are any number of conditions a judge may impose in order to rehabilitate an offender.  Mandatory treatment orders may be imposed, such as psychological counseling and alcohol and drug rehabilitation.  It is well known that sentencing an offender to a term of incarceration for an offence related to a drug addiction, without addressing the addiction, will probably not lead to the rehabilitation of the offender…..
            111           House arrest may also have a rehabilitative effect to a certain extent in so far as it prevents the offender from engaging in habitual anti-social associations and promotes pro-social behaviours such as attendance at work or educational institutions. [cite omitted]  

            112           The objectives of reparations to the victim and the community, as well as the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community may also be well served by a conditional sentence.  For example, in some cases, restitution orders to compensate the victim may be made a condition.  Furthermore, the imposition of a condition of community service can assist the offender in making reparations to the community and in promoting a sense of responsibility.  An interesting possibility in this regard would be an order that the offender speak in public about the unfortunate consequences of his or her conduct, assuming the offender were amenable to such a condition.  Not only could such an order promote a sense of responsibility and an acknowledgment of the harm done by the offender, it could also further the objective of deterrence, as I discussed above.  In my view, the use of community service orders should be encouraged, provided that there are suitable programs available for the offender in the community.  By increasing the use of community service orders, offenders will be seen by members of the public as paying back their debt to society.  This will assist in contributing to public respect for the law.

 

DECISION

            a)         You shall keep the peace and be of good behaviour,

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

c)         You shall report in person to a Conditional Sentence Supervisor no later than 4:00 pm on January 23, 2015 at the Probation Office at #101 – 250 GEORGE STREET, PRINCE GEORGE, B.C., and you shall thereafter report as and when directed by the Supervisor and in the manner directed by the Supervisor.

 

d)         You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the Supervisor,

 

 e)       You shall 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,

 

f)         After your first reporting to the Supervisor, further reporting may include reporting by telephone, at the discretion of the Supervisor.

 

g)         When first reporting to the Supervisor, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Supervisor.

 

h)         For the first 9 months of your conditional sentence, commencing at midnight on January 25, 2015  you are to remain within your residence (or within 20 meters of your residence) at all times, except as follows:

 

i)          between the hours of 4 PM and 7 PM each day, in order to attend to your personal business;

ii)        at any time with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons;

iii)        when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You    shall provide the Supervisor with written proof of employment;

iv)        in the event of a medical emergency and then only when traveling directly to or returning directly from an emergency medical care facility .

 

i)         For the remainder of your conditional sentence you shall obey a curfew by being inside of your residence (or within 20 meters of your residence) between the hours of 10 p.m. and 6 a.m. each day, except as follows:

 

i)          at any time with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons;

ii)         when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You    shall provide the Supervisor with written proof of employment;

iii)        in the event of a medical emergency and then only when traveling directly to or returning directly from  an emergency medical care facility .

 

j)         You shall present yourself at the door to your residence when any Peace Officer or Supervisor attends there for the purpose of determining your compliance with the curfew/house arrest conditions of this Order.

 

k)         You shall respond personally and immediately to the telephone when a Peace Officer or Supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew/house arrest conditions of this Order.

 

l)         You shall not possess or consume any alcohol or any controlled substance within the meaning of Section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician.

 

m)        You shall attend, participate in and successfully complete any assessment,             counselling or program as directed by the Supervisor.  Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to gambling and gaming addiction and may include a fulltime attendance program for those issues and you shall comply with all rules and regulations of any such assessment, counseling or program

 

n)        You shall apologize to the members of the Kwadacha Nation in the manner you are directed by the Supervisor in consultation with the Chief and Council and the Elders of the Kwadacha Nation to the satisfaction of the Supervisor no later than May 31, 2015.

 

o)         Subject to the wishes of the Chief and Council and Elders of the Kwadacha Nation (the victims), you shall participate in a victim/offender reconciliation program under the supervision and direction of ySupervisor.

 

p)         Under the direction and supervision of the Supervisor you shall successfully complete 100 hours of community work,

 

i)          which shall be performed at a rate of no fewer than 5 hours per month and,

ii)         which may be completed for the benefit of the Kwadacha Nation, with the advance consent of the Chief and Council of the Kwadacha Nation and the advance consent of the Supervisor.

 

q)         You shall pay restitution in the sum of $3,000.00 to the Clerk of the Court for the benefit of the Kwadacha Nation; such restitution to be made by monthly installments of $125.00 each, payable on the 1^st day of each month commencing with the month of February, 2015, and continuing on the first day of each month until such time as the restitution is paid in full.

 

r)         You shall not engage in any form of gambling or gaming or the purchase of lottery or other gaming tickets by any method including electronically and you shall not attend at any establishment in which gambling or gaming, including bingo, is offered or  available.

 

a)         You shall keep the peace and be of good behaviour.

 

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

 

c)         You shall 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.

 

d)         Within 48 hours after completing your conditional sentence you shall report in person, or as directed, to the Probation Office located at #101-250 GEORGE STREET, PRINCE GEORGE, B.C., and after that you shall report as and when directed by the Probation Officer.

 

e)         After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of the Probation Officer.

 

f)          When first reporting to the Probation Officer, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Probation Officer.

 

g)         You shall attend, participate in and successfully complete any assessment,             counselling or program as directed by the Probation Officer.  Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to gambling and gaming addiction and may include a fulltime attendance program for those issues and you shall comply with all rules and regulations of any such assessment, counseling or program.

 

h)        Under the direction and supervision of the Probation Officer you      shall successfully complete 150 hours of community work,

i)          which shall be performed at a rate of no fewer than 5 hours per month  and,

ii)         which may be completed for the benefit of the Kwadacha Nation, with the advance consent of the Chief and Council of the Kwadacha Nation and the advance consent of the Probation Officer.

 

i)         You shall pay restitution in the sum of $5,400.00 to the Clerk of the Court for the benefit of Kwadacha Nation, such restitution to be made by       monthly installments of $150.00 each, payable on the 1st day of each month commencing with the month of March 2017, and continuing on the first day of each month until the restitution is paid in full,

 

j)         You shall not engage in any form of gambling or gaming or the purchase of lottery or other gaming tickets by any method including electronically and you shall not attend at any establishment in which gambling or gaming, including bingo, is offered or  available.

 

 

 

__________________________

M. J. Brecknell

Regional Administrative Judge

Northern Region

Provincial Court of BC