IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Ms. Offman is before the court for sentencing following guilty pleas to two charges of defrauding the Legislative Assembly of British Columbia, through the Victoria-Swan Lake Constituency Office, of monies in excess of $120,000.00 over a six and one-half year period.  The Crown seeks a global sentence of two years less a day to three years incarceration and opposes that sentence being served in the community. The defense submits that a lengthy, onerous conditional sentence is the appropriate disposition.

[2]           A conditional sentence order is no longer available for either of these offences.  However, it is a sentencing option open to the court for these offences as the second charge occurred entirely within the timeframe when conditional sentences were available, and the first offence occurred over a longer time, a portion of which a conditional sentence order was available.  In the circumstances, the parties are agreed that the court is not precluded from imposing a conditional sentence on count one.

[3]           In forcefully advocating for their respective positions, the parties provided the court with a number of helpful authorities for similar cases.  While I have considered all of those decisions, in explaining my reasons, I will refer only to the reasoning of the Supreme Court of Canada and our Court of Appeal.

[4]           The law is clear that for large scale frauds perpetrated by abusing positions of trust, the objectives of sentence to be emphasized are denunciation and general deterrence, and that in many cases lengthy custodial sentences are imposed.  The primary consideration here is whether the personal mitigating circumstances of the offender are sufficient to enable these objectives to be met through a lengthy, onerous conditional sentence order.

[5]           In May 2005, Mr. Fleming was elected to the Legislative Assembly of British Columbia for the riding Victoria–Hillside.  In July 2005, he hired Ms. Offman as the Constituency Assistant to operate his constituency office, including the administration of its finances.  She occupied this position until December 2015 when she was terminated for unrelated reasons.

[6]           To maintain its operations, each constituency office is entitled to $119,000 annually, distributed by the Legislative Assembly through monthly instalments.  It is the responsibility of the MLA to monitor all expenses.  Each constituency office is also required to have an account with a financial institution, for which at least two persons are required to authorize all cheques issued from that account.  Each office was also required to issue quarterly financial reports, where invoices and receipts are required.  However, there was no requirement to submit copies of the cheques issued on the account.

[7]           In this constituency office, the two designated signatures were Mr. Fleming’s and the offender’s, and it was Ms. Offman’s responsibility to maintain all financial records and to submit the quarterly reports to the Legislature.

[8]           Following Ms. Offman’s termination in December 2015, the staff discovered that there were no financial records, including receipts or invoices, in the office.  As a result, contact was made with VanCity Credit Union, where the constituency office’s account was located, thereby enabling the constituency office to access the account online.  Upon doing so, the staff accessed bank statements and all cheques issued on the account for the previous seven years.  Irregularities were apparent, including the fact that numerous cheques were made out to Ms. Offman and poorly altered.

[9]           This led to an investigation by the Legislature.  The authorities were able to establish that the offender defrauded the Legislature of $120,420.61.  With regard to the first count, 198 cheques were altered in a crude and amateur manner to increase their value and/or to change the payee for the offender’s benefit.  Through these actions, the offender fraudulently obtained in excess of $106,000.  

[10]        With regard to the second count, 17 cheques, with a total value of in excess of $14,000, were signed by the offender and Mr. Fleming and made payable to the offender’s landlord for rent.  The offender accomplished this breach of trust in part by using blank cheques which were pre-signed by Mr. Fleming to facilitate the operation of the office during his necessary absences as an MLA.

[11]        It is surprising that the offender was able to avoid detection for any length of time given the incredibly unsophisticated nature of her fraudulent activity.  Her ability to do so depended on the fact that it appears no one at the Credit Union reviewed the cheques before or after processing them, and also depended on the fact that the offender enjoyed a high level of trust in her office and no one in the MLA’s office or the Legislature examined a monthly bank statement, comparing it to the cancelled cheques.

[12]        Ms. Offman is 46 years of age and has no prior criminal record.  She was adopted shortly after birth and has maintained little contact with her biological parents.  Her adoptive father is 72 years of age and has a history of severe mental illness.  Ms. Offman maintains a close relationship with her adoptive mother.  However, when five, her adoptive parents divorced and her father obtained sole custody.  Ms. Offman was raised primarily by a high turnover of nannies and housekeepers.

[13]        Ms. Offman has a Bachelor of Arts Degree.  Prior to employment with Mr. Fleming, the offender worked for the NDP caucus in Nova Scotia.  Notwithstanding her efforts to obtain employment, Ms. Offman has remained unemployed since December 2015.  After a three-year relationship, in August 2016 Ms. Offman and her husband separated, due to what she describes as the “rancor” following this offence.  She has no children and advises that she has lost many of her friends and acquaintances as a result of these offences.

[14]        For some time there has been significant public interest in British Columbia concerning how constituency office funds are administered, in part due to concerns raised by the Auditor General of British Columbia regarding control deficiencies, such as monthly bank reconciliations.  Partly as a consequence, once these allegations became known to the public, Ms. Offman was the subject of significant media attention.  Consequently, due to her own criminal wrongdoing, she has experienced a high degree of public embarrassment and humiliation.

[15]        Ms. Offman was engaged in counselling before criminal proceedings were initiated, and participated in a forensic assessment by Dr. Dugbartey, a Registered Psychologist with the Forensic Psychiatric Services Commission.  She is described by the doctor as very cooperative and frequently tearful.  On numerous occasions, she expressed how deeply sorrowful she was for committing these offences, and how ashamed she is of her behaviour.  

[16]        Dr. Dugbartey described her mood as “definitely depressed, with some passive suicidal ideations.”  Based on the psychometric testing, the doctor describes Ms. Offman as exhibiting “mixed anxiety and depressive symptoms which are rather severe.”  He describes her condition as “remarkably similar” to other persons who have experienced “disturbing traumatic events,” and refers to her feelings of emptiness, worthlessness, and pessimism regarding the future.  The doctor indicates that Ms. Offman’s periodic suicidal thoughts “must also be the focus of mental health monitoring.”

[17]        He also refers to her need for positive reinforcement from others due to feelings of inadequacy arising, in part, from her upbringing.  In her interview with the doctor, Ms. Offman referred to using fraudulently obtained monies to help others.  However, this allegation was disputed by the Crown, and when, pursuant to section 724 of the Criminal Code, the defense was provided the opportunity to call evidence to establish this fact on a balance of probabilities, the offender chose not to do so.  While the court accepts that the offender was not living a lavish lifestyle, and that she advised the doctor that ill-gotten gains were used to benefit others, which the doctor determined was, in part, to address the offender’s own feelings of inadequacy, the court is sentencing Ms. Offman on the basis that the monies obtained by fraud were used for her personal benefit.

[18]        Notwithstanding this issue, the court accepts the conclusions of Dr. Dugbartey when he states as follows:

[19]        Since the forensic assessment, the offender has sought continued assistance through mental health services and has been prescribed medication to alleviate depressive symptoms.

[20]        When asked during the sentencing proceeding whether she wished to address the court, Ms. Offman became extremely emotional and was only able to blurt out the words “I’m just so sorry.”

[21]        Given her history and current lack of employment, I am satisfied that there is no reasonable prospect in the foreseeable future of the offender having the ability to make restitution.

[22]        Two victim impact statements were submitted to the court, detailing some of the impact of the offender’s criminal activity.

[23]        Mr. Fleming describes the high level of trust he placed in the offender, partly due to the oath she took in obtaining this employment.  He states, in part:

[24]        Mr. Fleming also describes the impact on constituents who also felt betrayed, and the fact that “the considerable media attention to Ms. Offman’s actions” resulted in his other staff having to work under “very stressful conditions”.

[25]        Mr. James, the Clerk of the Legislative Assembly, also provided a victim impact statement wherein he advises that British Columbia and Québec are the only two provinces that use individual bank accounts for funds allocated to Members for constituency expenses.  As a consequence, in British Columbia the Legislative Assembly, in Mr. James’s words, “is particularly dependent upon the trust placed in Members and their Constituency Assistants to ensure that the public funds provided to Members are dispensed properly, and always with a view to upholding the public interest.”

[26]        The Clerk of the Legislative Assembly further emphasizes that as a result of the actions of the offender, including the cost of an investigation, the Legislative Assembly has suffered a financial loss of approximately $200,000.00.  Mr. James also advised the court that the actions of the offender:

[27]        The aggravating factors include:

[28]        The mitigating factors include:

[29]        The principles of sentence are codified in section 718, 718.1, and 718.2 of the Code.

[30]        The fundamental purpose of sentencing is to contribute to respect for the law and a just, safe society by imposing stated objectives.  These objectives include denunciation, deterrence, separating offenders from society, rehabilitation, repairing harm, and promoting a sense of responsibility in the offender and acknowledging the harm to victims and the community.

[31]        The court must take into consideration the aggravating and mitigating circumstances, “sentences imposed on similar offenders for similar offences,” that the “offender should not be deprived of liberty, if less restrictive sanctions may be appropriate,” and “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.”

[32]        Most importantly, a sentence must be proportionate to the gravity of the offence and the offender’s level of responsibility for it.

[33]        The leading authority concerning the application of conditional sentence orders is the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61.

[34]        In determining whether a sentence sufficiently denounces, or condemns the offender’s conduct through an appropriate punishment, the Supreme Court of Canada stated at paragraph 102 that:

[35]        The court also emphasized at paragraph 105 that:

[36]        The court further emphasized in paragraph 106 that:

[37]        In terms of general deterrence the Supreme Court in paragraph 107 acknowledged that incarceration may provide more deterrence.  However, the court also recognized that “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.”  The court also emphasized that:

[38]        In consideration of the approach to conditional sentence orders as established by the Supreme Court of Canada, our Court of Appeal has provided helpful guidance on the applicability of conditional sentence orders to large-scale frauds perpetrated through an abuse of trust.

[39]        In R. v. Khan, 2002 BCCA 703 (CanLII), [2002] BCJ No.2950 our Court of Appeal summarized the law applicable to large-scale fraud by quoting from R. v. Dubois, 2002 CanLII 32815 (ON CA), 58 OR (3d) 536 in paragraphs 49 through 54.

[40]        In R. v. Reid, 2004 YKCA 4 (CanLII), [2004] Y.J. No.3, our Court of Appeal sitting as the Yukon Territory Court of Appeal considered the principles in R. v. Khan in circumstances where the offender, over an approximate three-year period, as head cashier, stole over $200,000, through 277 acts of theft.  

[41]        Somewhat analogous to this case, the offender was able to perpetrate the theft over a lengthy timeframe as the employer did not compare tapes of the sales with the daily bank deposits.  However, of significant difference was the fact that the offender in that case never fully accepted her responsibility for the offence.  This was to the point of unsuccessfully attempting to withdraw her guilty plea.  

[42]        The appellate court overturned the 18-month conditional sentence, and taking into consideration the time the offender had already spent in jail and the time served on a conditional sentence, imposed a further straight jail sentence of 14 months.  In doing so the court stated in part:

[43]        In R. v. Burkart, [2006] BCCA 446 the appellant, as a manager in a trust company, stole over $81,000 from her employer over a one-year period, in part, by kiting cheques.  In this case, the Crown’s position was that if the sentencing judge was satisfied that a provincial sentence was appropriate, the court could consider a conditional sentence.  The sentencing judge imposed a sentence of 18 months imprisonment, as in the sentencing judge’s view, the “unusual circumstances” required for a conditional sentence to be appropriate did not exist.

[44]        However, the Court of Appeal found that the sentencing judge erred by suggesting that unusual circumstances are required for a conditional sentence to be appropriate. The Court of Appeal determined that there is no superior court authority for the proposition that there must be “unusual circumstances” before imposing a conditional sentence in cases involving a breach of trust where significant amounts of money are stolen. The court substituted a conditional sentence.

[45]        The direction provided by our Court of Appeal in these cases includes the following:  while sentencing is an individualized process and no category of offence is excluded from a conditional sentence where it is available at law, for large-scale frauds involving abuse of trust, incarceration is often necessary to sufficiently denounce the behaviour and to deter others from criminal activity.  Lengthy jail sentences are generally required unless there are significant mitigating circumstances.  The willingness and ability of the offender to make restitution is an important factor in this regard, as are other consequences to the offender and whether there is genuine remorse.

[46]        The first consideration here is whether the appropriate term of imprisonment is less than two years.  When taking into consideration the circumstances of these offences, including the aggravating and mitigating factors, along with the position of the Crown as to the appropriate range of sentence, I am satisfied that if a straight jail sentence were imposed, a term of imprisonment of 18 months would be a fit sentence.

[47]        Secondly, the parties agree that the offender has been specifically deterred and “the safety of the community would not be endangered by the offender serving the sentence in the community.”  Given the position of the parties, the offender’s lack of a prior criminal record, her genuine remorse and acceptance of responsibility, and the deterrent consequences that have already befallen upon her as a result of her criminal activity, I am satisfied that public safety would not be endangered if Ms. Offman were given a conditional sentence.

[48]        The remaining, and most important, consideration is whether a lengthy, highly punitive conditional sentence is “consistent with the fundamental purpose and principles of sentencing.”

[49]        The aggravating circumstances in this case, including, the high level of trust, the large amount of monies taken, along with number of transactions and extended length of time for reflection during which the fraud was perpetrated, support the imposition of a lengthy straight jail sentence in a provincial institution.

[50]        As emphasized by Crown Counsel, in the case before the court, some of the mitigating circumstances which were of primary consideration by other courts in imposing a conditional sentence order for large-scale fraud are not present here.  For example, this offender has not lost her ability to continue her employment as a professional, she is not the sole income earner for dependents, she has not made restitution, nor does she have the ability to do so for the foreseeable future, and she personally gained from her fraud.

[51]        However, as stated by our Court of Appeal in R. v. Burkart, there is no requirement that the circumstances be unusual before a conditional sentence order is appropriate.  

[52]        In R. v. Reid the absence of remorse was a significant factor in the court’s decision to overturn a conditional sentence order and to impose straight incarceration.

[53]        In this case, I am satisfied that the offender is extremely distraught and remorseful for her behaviour to the point where she is experiencing depression and suicidal ideation.  While she has not lost her profession, in all the circumstances including the public profile, the likelihood of her enjoying future employment with a political party or government is remote.

[54]        The ability to make restitution is an important consideration as it meets important objectives of sentencing, including repairing harm to the victim.  Further, in cases of sophisticated large-scale frauds by persons with means, who in many cases secreted the funds from the authorities, it is a sign of true remorse.  However, where, as in this case, the court is satisfied that the offender is truly remorseful and entirely lacks the financial resources to make restitution, in my view, it would be inappropriate to reject the applicability of a conditional sentence order for this reason alone.

[55]        In terms of the principle of denunciation, given the publicity attached to this crime, I am satisfied that the offender has already experienced significant stigma as evidenced in part by the loss of friends, and to some degree the separation from her husband.  Given the publicity, this stigma would continue in Victoria with the imposition of lengthy house arrest.  Given these factors, I am not satisfied that the further need for denunciation is so pressing that it can only be achieved through straight incarceration.

[56]        With regard to the principle of general deterrence, clearly, the imposition of  lengthy jail sentences will have a deterrent effect on persons tempted to commit large-scale frauds through breach of trust.  However, I am also satisfied that the consequences of this offence for this offender will have a significant deterrent effect, if combined with public awareness of an onerous punitive conditional sentence order with lengthy house arrest.  

[57]        While a lengthy sentence of straight incarceration may increase the deterrent effect more than a long conditional sentence with house arrest, given the consequences which have already befallen the offender, if combined with a lengthy period of house arrest, I am not satisfied that a lengthy straight jail sentence is required to meet this objective of sentence.

[58]        I am also mindful of the importance of not completely losing sight of the offender’s prospect for rehabilitation and the benefit this would have for the community in the long term.  Given her fragile mental state and the need for ongoing medical and counselling support, as well as the importance of her re-engaging with the community, including through community work service and gainful employment, I am satisfied that this objective of sentence enjoys a greater likelihood of success if the punishment is administered in the community.

[59]        In all the circumstances, it is my view that the appropriate disposition is a conditional sentence order of two years less a day on both counts to be served concurrently with the following conditions.

[60]        To assist the clerk in preparing the conditional sentence order I am referring to precedent numbers for some of the conditions.

[61]        Condition 300:  Contains the mandatory conditions including a requirement that you keep the peace and be of good behaviour and attend court when required to do so. You must also report in person to your conditional sentence supervisor no later than 4:30 PM today at the address set out in this order and thereafter as directed.

[62]        Condition 305:  On first reporting to the supervisor you shall inform him or her of your present residential address and phone number.

[63]        Condition 306:  You shall not change your address or phone number at any time without first obtaining the written consent of the supervisor.

[64]        Condition 309:  You shall remain in the province of British Columbia unless you have received the written consent of the supervisor to go elsewhere.

[65]        Condition 312:  For the first 18 months of this order you shall remain within your residence at all times except as follows:  (a) for an hour each day, approved in writing by your supervisor, to attend to your personal needs;  (b) at any time with the written permission of the supervisor, but such permission is to be given only for compelling personal, family, religious or employment reasons;  (c) when traveling directly to, or returning directly from applications for employment or your place of employment or while in the course of such employment and you shall provide the supervisor with details of your job applications, employment, if any, including hours of employment if requested to do so, or  (d) as necessary to attend to medical and counselling appointments and community work service.

[66]        For the remainder of the conditional sentence order this condition remains the same except that house arrest is replaced by a curfew of 7:00 p.m. to 6:00 a.m.

[67]        Condition 315:  You shall present yourself at the door of your residence when the supervisor or any peace officer attends there for the purpose of determining your compliance with the house arrest/curfew conditions of this order.

[68]        Condition 316:  You shall respond personally and immediately to the telephone when a peace officer or the supervisor makes a call to your residence for the purpose of determining your compliance with the house arrest/curfew condition of this order.

[69]        Condition 327:  You shall not possess or consume alcohol or a controlled substance within the meaning of section 2 of the Controlled Drugs and Substances Act except as prescribed for you by a licensed physician.

[70]        Condition 331:  You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or nightclub.

[71]        Condition 351:  You shall attend, participate in and successfully complete any assessment, counselling or program as directed by your supervisor.

[72]        Condition 353:  Under the direction of your supervisor you shall successfully complete 200 hours of community work service during the first 18 months of this order.

[73]        Condition:  You are not to have unsupervised access to cash, credit cards, bank accounts or financial records of others.

[74]        In addition, pursuant to section 738 of the Criminal Code, I am making a restitution order in the amount of $120,420.61 for the benefit of the Legislative Assembly of the Province of British Columbia.

[75]        Subject to hearing further submissions from counsel, those are the conditions on the conditional sentence order.