IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Ms. Lee appeared before me on January 17, 2018 for the purposes of sentencing to Count 1 wherein from the 1^st day of February, 2012 to the 3^rd day of June, 2015, inclusive, at or near Surrey, in the Province of British Columbia, did by deceit, falsehood or other fraudulent means defraud Telus Communications Inc., of money, of a value in excess of five thousand dollars ($5,000.00), contrary to Section 380(1)(a) of the Criminal Code of Canada.

[2]           Briefly, the agreed upon facts are such that in 2012, Telus acquired Wolf Medical Systems which was the employer of Ms. Lee and thereafter Ms. Lee became a Director at Telus, supervising approximately 10 - 15 employees; however, in June, 2015, as a result of corporate re-structuring, Ms. Lee received severance in lieu of notice.  It was only after Ms. Lee left her employment with Telus that her successor noticed accounting and financial irregularities in expenses that had been submitted and or approved by Ms. Lee during her tenure of employment.  After an internal investigation, the matter was forwarded to the RCMP, where after Production Orders and further investigation, including a Production Order for third party records such as Amazon, and a search warrant to her residence; it concluded that Ms. Lee was the controlling mind and actively engaging in an on-going fraudulent scheme against Telus.  That fraudulent scheme undertaken by Ms. Lee included that she utilized the corporate credit cards of her employees to purchase online from Amazon and post those expenses as being office expenses when they were in fact personal items which totalled approximately $37,000.00 from Amazon documentation and further, that she had two of her subordinates submit business expenses to Telus under their personal names, which in turn Ms. Lee approved and then in turn upon payment by Telus to the two subordinates, they would write a personal cheque to Ms. Lee for the amount.  These transactions were approximately $67,000.00.

[3]           This is a joint submission.  The leading authority on joint submissions is that of Regina v Anthony-Cook 2016 SCC 43 (CanLII), 2016 SCJ No. 43, (hereinafter referred to as Anthony-Cook, supra), wherein the Supreme Court of Canada noted that the public interest test is the appropriate test to consider whether to accept or deviate from a joint submission and concluded that a trial judge ought not to deviate from a joint submission unless it would bring the administration of justice into disrepute or was egregious to the public interest and in considering such, one cannot depart from a joint submission lightly and must be done only in the most unusual of circumstances taking into consideration the high threshold to do so.  I was not completely satisfied with the terms of the joint submission proposed and therefore in accordance with Anthony-Cook, (supra), I afforded both counsel the opportunity to hear my concerns which focused on the terms of the proposed Probation Order and each counsel made submissions and consulted with one another jointly and agreed to my proposed changes, which I will set out below.

[4]           From the outset, I will note that the joint submission is that of a 12-month Conditional Sentence Order to be followed by a 12-month Probation Order, and a Forfeiture Order.  Noting the timing of this offence, this is eligible for a Conditional Sentence Order and had it occurred shortly thereafter, this would not have been eligible for such.

[5]           There is consensus as to the mitigating factors, those being that this resulted in an early guilty plea, that both counsel acknowledge that Ms. Lee cooperated with the police in their investigation, that restitution has been paid back to Telus by Ms. Lee in the amount of $100,000.00, that she is remorseful, that she has and is taking responsibility for her actions, that she is currently employed and that she has a
six-month-old child.  In support of Ms. Lee, defence counsel have submitted a number of character reference letters from members of her community stating that she is a “virtuous person”, a “very honest” person, which is perplexing considering the length and quantum of what she has pled guilty to and there is a letter noting that “there is no explanation for what she did” and that it “makes no sense”.  I concur with such and will note that she is being accountable with this guilty plea and sentencing.  She appears to have support from her family and peers in which I would encourage both her supports to maintain contact with Ms. Lee and in turn, I would encourage Ms. Lee to rely upon her supports.  Ms. Lee has no criminal record.  The aggravating factors before me is that the agreed upon duration of the offence is significant and that this was done over a prolonged period of time and that it required pre meditation, that she was in a position of trust, that the amount was significant, and that this commercial criminal activity at the end of the day impacts every consumer or customer utilizing that service from that corporation.

[6]           Ms. Lee is currently 35 years of age, she has diplomas from BCIT, a Masters Certificate, a Project Management Certification and an IT Certificate.  In the past she has been employed by TR Systems, Wolf Medical Systems and was with Telus from 2012 - 2015.  Post Telus she was employed on a self-employed basis in the health and beauty industry and she secured employment with the BC Liquor Distribution branch, however, her employment was terminated when the charges were made known or discovered.  She is currently employed with CFU Holding Corporation as a Director of Global Operations and her current employer I have been advised, is fully aware of the circumstances and matter before me today for sentencing and my decision.

[7]           Defence counsel respectfully submits that Ms. Lee has and will pay a price for her criminal activity as this will result in a criminal record and that she will not be permitted to enter into the United States without a waiver.  Counsel submit that the police and Telus are, in their words, “supportive” of this joint submission; however, I will note that neither at the end of the day, can nor should bind this court in any decision made.

[8]           As noted, I was not prepared to accept the joint submission after careful consideration and placed both counsel on notice, particularly drawing to their attention that I am bound to consider the principles of sentencing and that the terms of the Conditional Sentence Order and the Probation Order did not adequately address the harms done to the community as a whole.  As articulated at para. 25 by the Supreme Court of Canada in the Anthony-Cook, (supra), decision:

[9]           In considering any deviation from a joint submission, the court must consider the public interest test, meaning to review, consider and ensure that such submission does not bring the administration of justice into disrepute or is not contrary to the public interest.  This test allows for certainty with joint submission proposals to the court and provides surety to the accused.  I was not satisfied that this joint submission when initially presented addressed the public interest meaning that it is “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system” (Regina v Drunken, 2006 NLCA 67, at para. 29) or more succinctly put, that the public would lose confidence in the judicial system (Regina v B.O.2, 2010 NLCA 19 (Can LII, para. 56).  I am satisfied that both counsel have provided to me the relevant facts and information and I will acknowledge that the proposed joint submission has been carefully crafted, but for the impact upon the public and this community as a whole.  In posing such to counsel, it was not for them to turn their mind that this should be a custodial sentence.  In that respect, I am satisfied that the Conditional Sentence Order and Probation Order is appropriate, however, where I focused both counsel on my concern was that it did not address the harms done to the community as a whole and how that rehabilitation and reparation can be amended to address the values of this community.  Ms. Lee was in a position of trust and defrauded Telus some $100,000.00 over a long period of time and while in a position of trust.  While the funds have been repaid, this was premeditated over a long period of time and defrauding any corporation at the end of the day such fraudulent activity is passed along to the consumers in this community as a cost.  My concern was also articulated by authors Ruby, Chan and Hasan in Sentencing, (8^th ed., 2012) at para. 73 which stated:

[10]        This is where my concerns lie in the proposed sentence.  As part of the joint submission, it was agreed, amongst other terms, that Ms. Lee complete 150 hours of community work service hours to the satisfaction of her Probation Officer.  Ms. Lee, has and continues to be actively involved in the British Columbia badminton community not only as a participant, but as a mentor and volunteer.  She is to be commended for such, however, my mind turned to that these hours in which she participates and volunteers, can sometimes be 19 - 30 hours per month as part of her day to day life.  I expressed concern that this historical activity to which she participates is not to be negated, however, it should not be permitted as part of the community work service hours.  The purpose of community work service hours in any sentencing is to give back in a positive manner contribution to the community in the form of rehabilitation but to acknowledge the harm suffered by the community as a whole and to volunteer making a positive contribution.  I expressed that concern to both counsel.  In my decision of Regina v Singh 2016 BCPC 407 (Can LII), at sentencing after entering a guilty plea, Mr. Singh produced a number of letters indicating that he volunteers a number of hours at his local temple.  In my decision, I, too, focused on the reparations to the community in his illegal immigration activity and the sanctity of our Canadian values and our border and ordered that none of his community work service hours was to be undertaken within his temple for the reason that it addressed the harms as a whole to the community and addressed reparations.  That decision was appealed and at the appeal level, in Regina v Singh 2017 BCSC 1277, Mr. Justice Verhoeven dismissed the appeal and in commenting on having Mr. Singh volunteer outside of his normal volunteer activities stated at page 15, para. 86:  “…it would not be a meaningful sanction to impose a requirement that Mr. Singh provide community work service by continuing to do what he was already doing, and would do in any event.”  Mr. Justice Verhoeven continued at paras. 87 and 88:  “Mr. Singh cannot be permitted to specify the manner in which he would like to fulfil the obligation imposed on him, if that is the effect of the submission.  I am not persuaded that the sentencing judge erred in principle by very minimally restricting the manner of community work service.  The restriction permits Mr. Singh broad latitude in fulfilling the condition, in that it only prevents him from fulfilling the condition at a temple.  I am not persuaded that the condition was intended or had the effect of being discriminatory.” I expressed this very concern to both counsel with the initially proposed joint submission and allowed both counsel to provide submissions, caucus further, and to which they both returned not finding my thought process regarding the community work service hours to be unduly harsh and concurred with my thoughts.  I concur that this is a commercial fraud and while it is difficult to ascertain the impact that any commercial fraud has on the public as a whole and the community, so, too, the reality is that at the end of the day, regardless of the size of the corporate entity, costs are invariably passed along to the consumer, being members of the community and that can result in harm.  How to address it is not easy, however I expressed this concern to counsel with my thoughts and I thank them that after their submissions and their own caucusing upon hearing my thoughts, they agreed with my proposal, which is that a significant amount of Ms. Lee’s hours in the form of community work service should not be permitted to take the form of her badminton volunteering hours.

[11]        Section 718 of the Criminal Code of Canada addresses the fundamental principles of sentencing which include denunciation, deterrence and rehabilitation.  I am satisfied that the joint submission as now agreed upon addresses all such considerations.  As noted, when the joint submission was initially proposed, I was not content that Sections 718 e) and f) were adequately addressed, particularly in terms of the harm done to the community as a whole with this commercial fraud and to acknowledge the harm that this has caused to the community as a whole.  It is unique to apply Section 718 to a commercial crime application when considering Sections 718 e) and f), however, the fact is that at the end of the day, wrongfully removing and allocating funds from any corporate entity has a cost that is passed along to the consumer, meaning the community as a whole and while re-paying the monies is a significant step, the community must know that you cannot simply write a cheque to right a wrong.  Reparations must be made.  I am now satisfied that the re-worked joint submission satisfies those concerns and I wish to specifically thank both counsel for the succinct submissions and review.

[12]        Accordingly, I will order the following in the form of the joint submission:

[13]        To be followed by a 12-month Probation Order with the following terms and conditions:

[14]        There will be a Forfeiture Order signed on the Bench as jointly presented to me by counsel.