In the Provincial Court of Alberta Citation: R. v. Alexander, 2008 ABPC 277 Date: 20080929 Docket: 071274633P1-01-001-004 061407722P1-01-001-006 Registry: Calgary Between: Her Majesty the Queen - and - Lindsey Elizabeth Alexander Reasons for Sentence of the Honourable Judge T.C. Semenuk INTRODUCTION [1] The Accused has pled guilty to three charges of fraud. The first charge is a fraud committed by the Accused, while she occupied a position of trust as bookkeeper for a Calgary law firm. The amount of money taken by her was $22,136.16. The second charge is a fraud committed by the Accused while she occupied a position of trust as the financial controller for a Calgary car dealership. The loss totalled $512,200.49. The third charge is a fraud committed by the Accused on Her Majesty the Queen in submitting false GST returns to the Canada Revenue Agency to cover the money she was taking from the car dealership. The amount of money involved was $364,947.05. [2] The issue before the Court is a fit global sentence. Crown Counsel submit that a fit global sentence is 5-7 years’ imprisonment. Defence Counsel submits that sentence is excessive, and that a fit global sentence is 2 years’ less 1 day imprisonment, and that the Accused ought to be allowed to serve the sentence in the community pursuant to a Conditional Sentence Order (CSO). [3] For the reasons that follow, the Accused is sentenced to a global sentence of 4½ years imprisonment. Page: 2 FACTS [4] The Accused is charged in two Informations as follows: Information Docket Number: 071274633P1 Count 1: Between the 12th day of March, 2001, and the 4th day of January, 2002, both dates inclusive, at or near Calgary, Alberta, did by deceit, falsehood or other fraudulent means, unlawfully defraud law firm of Park Wenngatz of property, money, valuable security or a service, to wit: money held in trust, of a value exceeding $5,000.00, contrary to Section 380(1)(a) of the Criminal Code of Canada. Count 3: Between the 4th day of January, 2002, and the 28th day of May, 2004, both dates inclusive, at or near Calgary, Alberta, did by deceit, falsehood or other fraudulent means, unlawfully defraud Centaur Import Motors Ltd. of property, money, valuable security or a service, to wit: money, of a value exceeding $5,000.00, contrary to Section 380(1)(a) of the Criminal Code of Canada. Information Docket Number: 061407722P1 Count 6: Between the 1st day of January, 2003, and the 15th day of June, 2004, at or near the City of Calgary, in the Province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Her Majesty the Queen in Right of Canada, of money of a value exceeding $5,000.00 and did thereby commit an offence contrary to paragraph 380(1)(a) of the Criminal Code of Canada. [5] The facts were adduced by way of two written Statements of Admissions, marked in evidence as Exhibits 1 and 2 as follows: Pursuant to Section 655 of the Criminal Code of Canada, the following facts and aggravating facts are admitted for the purposes of dispensing with proof thereof: In relation to Count 1: Background Information: 1. From mid-1986 through to approximately January, 2000, Lindsey Alexander was employed by Alexander Park (now Mr. Justice Park) and Arthur Wenngatz. Page: 3 2. Lindsey Alexander occupied a position of trust, working as a bookkeeper for the various Calgary law firms Mr. Wenngatz and Mr. Justice Park joined and/or formed over the years. 3. At the end of March, 1999, Mr. Justice Park was appointed as a Justice for the Court of Queen’s Bench and Mr. Wenngatz joined the law firm of Caron and Partners. Ms. Alexander, and two other assistants, continued to be employed for the firm of Park Wenngatz as their files were transferred and/or closed and the firm’s business was concluded. 4. By January, 2000, most of the firm’s business had been wound up and the office was ultimately closed. Lindsey Alexander’s Continuing Role 5. Ms. Alexander turned over all of the books and records for the firm, up to the end of 1999, to Mr. Wenngatz. She also provided Mr. Wenngatz a document she identified as a trust account listing. Mr. Wenngatz expected that if the clients named in the listing, with money remaining in the trust account, could not be located Ms. Alexander would file the appropriate forms with the Law Society with respect to dormant trust monies. 6. After January, 2000, financial, banking, bookkeeping and accounting records, as well as the Firm’s computer containing an electronic version of all of the Firm’s financial records, were maintained by Lindsey Alexander either at office space rented by her brother or at her home. 7. Mr. Wenngatz considered Ms. Alexander, an employee of over ten years, to be very competent and he trusted her completely. She submitted invoices for the hours she worked and received payment by way of a cheque from the firm’s general account. These cheques were signed by one of the partners and by Ms. Alexander, as two signatures were required for cheques drawn on both the Firm’s general and trust accounts. Page: 4 The Law Society Investigation / Attempt to Obtain the Records 8. After receiving the books, completed up to the end of 1999, from Ms. Alexander in January, 2000, and with her undertaking to file any necessary forms with the Law Society in relation to dormant trust money, Mr. Wenngatz believed that the firm’s business had been entirely and properly concluded. He was surprised, therefore, to receive a telephone call from the Law Society, on or about November 17, 2004, inquiring about forms that had not been submitted in relation to the Park Wenngatz trust account. 9. On November 17, 2004, Mr. Wenngatz forwarded a request to Ms. Alexander to send all of the books and financial records to Mr. Rutherford so that the required forms and information could be provided to the Law Society. 10. Ms. Alexander advised that she could not take the books and records to Mr. Rutherford because the law firm’s computer, which she was to have been maintaining at her home, had crashed. When asked about the hard copies of all of the records, Ms. Alexander responded that some of the hard copies may have been destroyed, too, but she would look for them. 11. Mr. Wenngatz spoke with Ms. Alexander over the telephone more than once to try to obtain the firm’s records in order to comply with Law Society requirements. 12. According to Mr. Wenngatz, on one occasion Ms. Alexander told him that the hard copies of the records had been destroyed in a fire, but at another time she asserted they had been lost in a flood. Notwithstanding these disasters, she vowed to put together everything she could and promised to call him back. 13. Ms. Alexander denies that she purposely kept the hard copies of financial records from Mr. Wenngatz. Ms. Alexander’s explanation is that the Page: 5 records were being stored in a crawl space in her home along with some of her father’s old records. She maintains that, at one point in time, there was a flood in her crawlspace and the boxes were so badly damaged that she simply pulled them all out and burned them. 14. Mr. Wenngatz, though, did not hear back from Ms. Alexander after his initial call so he contacted her at her new workplace. When he asked if he could pick up the Firm’s computer, Ms. Alexander advised she had thrown it out. When Mr. Wenngatz asked why she would do such a thing, as the information on the hard drive could likely have been retrieved, she had no explanation. Further, she advised that she no longer had any hard copies of the records, either. She concluded by telling Mr. Wenngatz simply, “I can’t help you. I don’t have anything for you.” Notwithstanding the destruction of all of the records, Ms. Alexander assured Mr. Wenngatz that the bookkeeping had been properly done. 15. The firm’s accountant, Mr. Rutherford, had likewise been advised by Lindsey Alexander that there were no records available because the computer had crashed. She told him, though, that she had cleared out the entire trust account by writing a cheque, on December 31, 2002, to Caron & Partners (the firm that Mr. Wenngatz was now with) for the entire balance of the trust account. Ms. Alexander now advises that she did write a cheque payable to Caron & Partners to clear out the trust account at some point, but Mr. Wenngatz refused to accept or sign it because it was inappropriate to mix his former’s Firm’s trust money with Caron & Partners’ trust money. 16. When confronted later by the Law Society’s investigator with cheques payable to herself from the firm’s trust account, Ms. Alexander told the investigator that the cheques represented payment for her bookkeeping services between March, 2001 and January, 2002. The fact that she wrote twelve cheques to herself from the trust account rather than the general account, she advised, must have Page: 6 just been an error on her part. Mr. Wenngatz, however, advised the Law Society that Ms. Alexander had never made such errors before, was not doing any work for the firm during this time, had not presented any invoices for bookkeeping services, and had never had sole signing authority. Evidence of Fraud 17. The Law Society obtained copies of the cheques written by Ms. Alexander to herself after Mr. Wenngatz, who had no success obtaining his records from Ms. Alexander, ordered copies from the bank in order to provide the required information to the Law Society. It took two attempts and several months before usable records were fully obtained. 18. All cheques, whether General or Trust Account cheques, required two signatures – a signature of one of the Firm’s partners and Ms. Alexander’s signature. 19. The cancelled cheques Mr. Wenngatz received from the Bank, though, revealed that Lindsey Alexander had written twelve (12) cheques to herself and/or to herself and her husband (D. Alexander) from the Firm’s trust account, between March, 2001 and January, 2002, totalling $22,136.16. Each cheque bore only Ms. Alexander’s signature, but was nevertheless processed by the Bank. 20. The cheques were written on the dates, to the payees, and for the amounts set out below: March 12, 2001 Lindsey Alexander 1000.00 March 26, 2001 L. Alexander 1500.00 April 20, 2001 L. Alexander 830.00 D. & L. Alexander 2000.00 May 9, 2001 L. & D. Alexander 2000.00 May 15, 2001 L. Alexander 1741.82 May 18, 2001 Lindsey Alexander 4424.28 June 8, 2001 L. Alexander 1805.09 May 4, 2001 Page: 7 June .., 2001 L. Alexander 2000.00 June 15, 2001 L. Alexander 1000.00 June 22, 2001 L. Alexander 2000.00 January 4, 2002 L. Alexander 1834.37 21. Ms. Alexander knew she did not have authority to write cheques to herself and/or herself and her husband from the firm’s trust account. The funds were not owed to her for bookkeeping services or any other work done for the Law Firm and the funds were used by Ms. Alexander for purposes unrelated to the law firm and/or its clients. Ms. Alexander admits that she defrauded Park Wenngatz of money held in trust totalling $22,136.16. In relation to Count 3: Background Information 22. Centaur Import Motors Ltd. is a family owned and operated business. Bruce Williams is the President of the firm, Paul Williams is the Vice President, and Patricia Williams is the Secretary. Bruce and Patricia Williams are spouses and Paul Williams is their son. 23. On November 11, 2001, Ms. Lindsey Alexander obtained employment as the financial controller for Centaur Import Motors Ltd. in Calgary. Over the next three years Ms. Alexander held a position of trust and was responsible for all aspects of Centaur’s accounting operations including accounts payable, payroll, account reconciliation and tax disbursements. Ms. Alexander worked independently, on a full time basis, with little or no supervision. She was considered a trustworthy and valued employee. 24. During her employment with Centaur, Lindsey Alexander had signing authority with respect to Centaur’s bank accounts. However, Ms. Alexander was instructed that she could only sign payroll cheques and, as far as the Williams’ were aware, that was the only type of cheque she ever signed. Page: 8 25. On June 30, 2004, after giving notice that she would be resigning, Ms. Alexander left her employment at Centaur Subaru on good terms. She had advised her employers that she was leaving because she and her husband, a retired Calgary Police Officer, did not need her income and she wanted to spend more time with her grandchildren. Discovery of Missing Financial Records and Fraud 26. After Ms. Alexander left Centaur Patricia Williams began helping out in the office. While looking into a G.S.T. refund, Ms. Williams noticed some questionable entries and was unable to locate two cheques related to those entries. She requested that the bank provide copies of those cheques. 27. When she received copies of the two missing cancelled cheques, Ms. Williams became aware that Lindsey Alexander had written and signed the two cheques payable to MasterCard, but knew that Centaur did not have a MasterCard account. 28. Thereafter Ms. Williams discovered 34 more cheques that were missing from their files and requested copies of them. On August 25, 2005, the cheques were provided and Ms. Williams learned that all but three of these cheques had been made out to MasterCard – the others had been made payable to Lindsey Alexander. 29. It became apparent to Ms. Williams’ after several weeks of analysis of their accounts that Ms. Alexander had been manipulating their GST account by inputting false GST tax credits. 30. Ms. Alexander would balance the GST account by writing cheques for her own benefit in the amount of the GST credit received. In order to avoid having to make an entry into the company’s cheque register and prevent detection of her fraudulent acts, she would remove the cheque from the printer so there would be no computer generated record of it, create a false journal entry to account for the missing cheque and then manually prepare a cheque (stamped “Payroll”) payable to herself or her MasterCard account. Page: 9 31. When the fraudulent cheques cleared and were returned by the bank at the end of the month Ms. Alexander removed them so that no one would ever see them. By taking all of these steps Ms. Alexander was able to balance the GST account each month, leaving behind no indication of her actions. The Police Investigation 32. The Williams reported the fraud to Canada Revenue and to the RCMP, and ultimately to the Calgary Police Service who investigated this matter further. The Williams immediately paid $277,384.88 to Revenue Canada, plus $12, 329.74 in penalties and interest, which was the amount of fraudulent activity that had been discovered up to that time. 33. The Calgary Police Service, Commercial Crime Unit, took over this investigation and obtained evidence proving that the following number of fraudulent cheques, for the total amount indicated, were written and negotiated by Lindsey Alexander on bank accounts owned by Centaur Import Motors Ltd. January 4, 2002 to May 27, 2004 107 Cheques Payable to either Lindsey Alexander or MasterCard $499,870.75 Generally 34. All of which occurred within the Judicial District of Calgary, Alberta. 35. The total provable loss due to fraud committed by Lindsey Alexander against Park Wenngatz was $22,136.16. 36. The provable loss due to fraud committed by Lindsey Alexander to Centaur Import Motors Inc. was Page: 10 $499,870.75, plus $12,329.74 paid to Revenue Canada in penalties and interest. The total provable loss to Centaur Import Motors Inc., therefore, was $512,200.49. 37. Lindsey Alexander had no criminal record prior to committing these offences. In relation to Count 6 1. On November 11, 2001, Lindsay Alexander was hired by Centaur Import Motors (1997) Ltd. (“Centaur”) as a controller. Her duties included the preparation of payroll (with sole signing authority), maintenance of computerized books and records, preparation and filing of GST returns, daily banking functions (picking up bank statements and cancelled cheques), preparation of bank reconciliations, year end summarization of payroll records, and preparation of employee T4's. 2. From 2003 to 2004, Ms. Alexander embezzled over $395,000 from her employer, Centaur Import Motors (1977) Ltd. (“Centaur”), (see Provincial Crown Statement of Admissions), by writing cheques to herself and her credit card company. She was able to do this in her capacity of being employed as Centaur’s controller. 3. Ms. Alexander then covered up her embezzlement by filing, on behalf of Centaur, false GST returns with fictitious input tax credits (“ITCs”) and using the GST that otherwise would have been remitted to CRA to balance Centaur’s books. (ITC’s are amounts that reduce a company’s payable GST amount against the GST that it collects and remits to Her Majesty the Queen in right of Canada). By falsely inflating the company’s ITC’s it allowed the company to keep the amount of the GST it had collected equal to the amount of falsely claimed ITC’s. 4. Ms. Alexander was in a position of trust with Centaur and the company had no checks and balances in place Page: 11 to review her work. To embezzle from Centaur, Ms. Alexander manually wrote cheques to herself in amounts similar to her regular pay or wrote cheques to MasterCard which she used to pay her outstanding balances. By manually writing the cheques, Ms. Alexander avoided having to account for them electronically on the dealership’s electronic records. 5. To cover her fraudulent actions, Ms. Alexander completed and submitted GST returns on behalf of Centaur, with fictitious ITCs. The result was that Centaur did not remit all of the GST it had collected and Alexander used these additional funds to balance Centaur’s books, hiding her embezzlement. 6. The total amount of fictitious ITCs claimed by Ms. Alexander over the two-year period, on behalf of Centaur, totals $364,947.05. 7. In 2003, Ms. Alexander embezzled $267,389.26 from Centaur and covered these embezzled funds by claiming fictitious ITCs totalling $215,427.11 on behalf of Centaur (difference explained by calendar year and Centaur’s fiscal year). This was done using a manual journal entry to debit ITCs in the GST Vehicles account and credit the Bank. She manually prepared 7 “Payroll” cheques to herself for $12,760.51 and 32 “Payroll” cheques made out to MasterCard for $252,625.75. The cheques payable to MasterCard were used to make payments on Ms. Alexander’s account no. 5191 2300 0391 2814. 8. In 2004, Ms. Alexander embezzled $129,672.72 from Centaur, claiming fictitious ITCs totalling $149,519.94 (difference explained by calendar year and Centaur’s fiscal year). She manually prepared 17 “Payroll” cheques made out to MasterCard for $129,672.72. The cheques payable to MasterCard were used to make payments on Ms. Alexander’s account no. 5191 2300 0391 2814. 9. In summary, Ms. Alexander completed and submitted GST returns on behalf of Centaur, with fictitious ITCs equal to the amounts she embezzled. The result was Page: 12 that Centaur did not remit enough of the GST it had collected and Ms. Alexander was able to use the additional funds to balance Centaur’s books, hiding her embezzlement. 10. Centaur’s owners trusted Ms. Alexander and took no steps to review the bank statements or any other books and records (electronic or manual). It was not until after she was terminated in June 2004 that they realized what had happened. 11. The owners of Centaur, Mr. and Mrs. Williams, upon discovering the fraud against themselves and the CRA, paid back the CRA a total of $265,055.14. The CRA, due to the circumstances, waived any penalties and interest against Centaur. The CRA also wrote off as a loss to the Government of Canada the balance of the gross amount of the false ITCs which totaled $99,891.91. 12. [6] A Pre-Sentence Report (PSR), FAOS Report, and amended FAOS Report were prepared and marked in evidence as Exhibits 3, 4, and 7, respectively. The amended FAOS Report was prepared by Dr. Baxter, because she had not received a copy of Exhibit 1, the Statement of Admissions and the charge faced by the Accused in relation to the victim law firm, at the time of her preparation of the FAOS Report. In order to make a proper assessment of risk, the Court ordered the preparation of the amended Report. [7] As well, Victim Impact Statements written by Pat Williams and Bruce Williams, the owners of Centaur Import Motors Ltd., were marked in evidence as Exhibits 5 and 6, respectively. ISSUES [8] The issue in this case is a fit global sentence. Crown Counsel submit that a fit global sentence is 5-7 years imprisonment. Defence Counsel submits that a fit global sentence is 2 years less 1 day imprisonment, and that the Accused ought to be allowed to serve the sentence in the community pursuant to a CSO. LAW AND ANALYSIS Range of Sentence [9] In determining the range of sentence in this case, Counsel provided the Court with a number of authorities. Page: 13 [10] Ms. Mulligan, for the Provincial Crown, referred the Court to the following authorities: R. v. McIvor, [1996] A.J. No. 377 (ABCA); R. v. Tebbutt, [1992], A.J. No. 256 (ABCA); R. v. McTighe, 2005 ABCA 30 (ABCA); R. v. Holmes, [1999] A.J. No. 862 (ABCA); R. v. Bracegirdle, 2004 ABCA 252 (ABCA); R. v. Jyu, [1989] A.J. No. 819 (ABCA); R. v. Jaikaran, 2007 ABCA 98 (ABCA); R. v. McDermand, [2000] A.J. No. 628 (ABCA); R. v. McLeod, [2000] A.J. No. 1115 (ABPC); R. v. McKinnon, 2005 ABCA 8 (ABCA); R. v. Schwan, [1994] A.J. No. 605 (ABPC); R. v. Yamada, [1996] A.J. No. 629 (ABCA); R. v. Jones, 2006 ABCA 79 (ABCA); R. v. Jones, 2005 ABPC 310, 2005 Carswell Alta. 1653 (ABPC); R. v. Dobis, 157 O.A.C. 83, 163 C.C.C. (3d) 259, 58 O.R. (3d) 536, 27 B.L.R. (3d) 200, 2002 Carswell Ont. 575 (Ont. C.A.); R. v. Foran, [1970] 2 O.R. 52, [1970] 1 C.C.C. 336, 1969 Carswell Ont. 371 (Ont. C.A.). [11] Mr. Constantinescu, for the Federal Crown, referred the Court to the following authorities: R. v. Kooper, (unreported judgment of Oliphant, A.C.J., delivered in the Queen’s Bench Court at Winnipeg, Manitoba, on March 21, 2006) and R. v. Turner, (unreported decision of Maloney, PCJ., delivered in Provincial Court at Calgary, Alberta on April 23, 2007). [12] Mr. Der, for the Accused, referred the Court to the following authorities: R. v. Bunn, (2000) 140 CCC (3d) 505 (SCC); R. v. Dinardo, 2001 Carswell Ont. 2539 (Ont. Ct.J.); R. v. Lane, 2004 Carswell Nfld. 66 (Nfld./Lab. S.C. ); R. v. Turner, 2006 ABPC 189; R. v. Fraser, 2007 ABCA 386; R. v. Fulcher, 2007 ABCA 381; R. v. Gabel, 2008 ABPC 90; and R. v. Coulson, 2008 ABPC 144. [13] Fixing a range of sentence in this case is complicated by the fact that the Accused is charged with three distinct offences. The range of sentence for each offence necessarily differs. In this regard, I agree with the observations made by my Learned Colleague, Allen, PCJ, in Coulson, supra, at para. 41 as follows: The sentence range for frauds or thefts by individuals in a position of trust varies with the amount stolen, the type of position of trust, the nature of the victims, the degree of sophistication of the scheme, and the length of time over which it occurred. Pursuant to s. 380.1(c), the sentencing judge is required to take into account as an aggravating factor that the fraud involved a large number of victims. In this instance, there were forty-three victims which constitute a large number for the purpose of the section . [14] In this case, the accused occupying a position of trust as bookkeeper and then financial controller, defrauded three separate victims. The amount of money taken from each victim is different. The degree of sophistication, and the length of time over which the frauds occurred is different. Clearly, the second charge is the most serious. Although there is some overlap in the facts between the second and third charges, each offence calls for a different range of sentence to be considered, prior to factoring in the totality principle. [15] In my review of the above-cited authorities and others, the range of sentence for defrauding the law firm, Park Wenngatz of $22,136.16, would be somewhere between 6-12 months’ imprisonment. Page: 14 [16] The range of sentence for defrauding the car dealership, Centaur Import Motors Ltd. of $512, 200.49, would be somewhere between 2 and 4 years’ imprisonment. [17] The range of sentence for defrauding Her Majesty the Queen of $364,947.05, would be somewhere between 12 months’ and 3 years’ imprisonment. CIRCUMSTANCES OF THE ACCUSED [18] The Accused is 54 years of age. She is married, and her husband is a retired member of the Calgary Police Service (CPS). At the present time, the Accused and her husband are living on a farm near Westwold, British Columbia. She has no prior criminal record. [19] The Accused was born in England, and has three older brothers. Her mother passed away in 1989, as a result of complications from a blood clot in her lung. Her father passed away in 1994, due to throat cancer. It is stated in the PSR, that the Accused was emotionally close to both parents, and that their deaths were traumatic to her. [20] The Accused emigrated to Calgary with her family when she was four years old. There is nothing remarkable about the Accused’s upbringing. [21] In 1971, when she was 18 years old, she married her first husband. The marriage was terminated after 10 years due to her husband’s alcoholism. In 2006, her first husband passed away. That relationship produced a daughter and a son, now aged 35 and 36, respectively. [22] In 1983, when she was 30 years old, she married her present husband. He had two children from a prior marriage, a daughter and a son, now aged 35 and 36, respectively. Her present husband was involved in raising her two children, with little involvement from her first husband. He remains supportive of the Accused. [23] The Accused has a grade 11 education, and has taken several accounting courses at Mount Royal College in Calgary. She is presently unemployed. She last worked in October 2007 as a financial controller for Jaguar/Subaru Calgary, but lost her job as a result of the offences before the Court. She is now collecting employment insurance, and has declared bankruptcy. She has made no restitution to the victims in this case, and does not now have the financial ability to do so. [24] The Accused admits to a gambling addiction that started shortly after her mother passed away in 1989. Her gambling addiction was one of the primary motivations for the commission of the offences before the Court. After being charged, she made efforts through AADAC and Gambling Anonymous (G.A.) to control her addiction. Since moving to British Columbia, she has also been seeing a clinical registered counselor in Kamloops to address her personal and gambling issues. [25] In the PSR, the writer states, “The subject presented as a self-absorbed individual who offered little remorse for her actions. She gave the writer the impression that she was mostly Page: 15 upset that she was in trouble with the law rather than upset about the harm her actions have caused others.” [26] The writer concludes the PSR by stating, “The subject presented as a defeated individual who feels sorry for herself. She has made some efforts to address her gambling addiction by attending AADAC, GA meetings and individual counselling. The subject expressed how much she dislikes living on an isolated farm in British Columbia. She is unemployed, has strained family and personal relations and did not take much responsibility for her actions.” [27] She is not recommended as a suitable candidate for community supervision. [28] In the FAOS Report, Dr. Baxter states that the Accused indicated a history of depression and a mental breakdown during her first marriage. She was admitted to hospital and prescribed antidepressant medication. There is also a past suicide attempt via overdose, when she felt overwhelmed during her divorce. She also had problems with unresolved grief after the death of her parents. Prior to moving to British Columbia, she had never been involved in any personal counselling. [29] Dr. Baxter writes, “She attributed her offence to a problem with excessive gambling. She often used her credit card to get cash advances at the casino, thus ‘I needed money and I figured out a way that I could pay down my MasterCard.’” [30] The Accused told Dr. Baxter, she started gambling after her mother died and that “It was a great way to block everything out, and it just escalated.” There is mention in the report that her gambling problem escalated to the point where she was spending $200-$1,000 daily, on advances obtained on her MasterCard. [31] The Accused told Dr. Baxter that after finding employment with the victim car dealership in this case, “she found the working environment to be very stressful, and said that her employer yelled at her and belittled her on a regular basis. She said she left the job most nights in tears, and finally left the job in 2004 when she was denied a vacation.” [32] The Report mentions that in September 2007, the Accused’s daughter arranged for her to receive an urgent mental health assessment via the Mobile Response Team. She called the Distress Center, because she thought her mother might be suicidal due to her financial and legal problems. At that time her legal problems included the criminal charges, tax evasion charges, and a civil lawsuit. The Accused was diagnosed with Major Depression and Pathological Gambling. [33] The Report also indicates that her daughter caught the Accused gambling on September 7, 2007. After being caught, the Accused signed a self-exclusion agreement with the casinos in Calgary. [34] Dr. Baxter concludes the FAOS Report by stating, “The fact that she didn’t like her employers, likely made it easier for her to justify her theft in the index offence.” Dr. Baxter finally states, “Overall, given the consequences Ms. Alexander has already suffered because of her offence, her risk of recidivism appears to be very low.” Page: 16 [35] In the amended FAOS Report, Dr. Baxter indicates that the charge faced by the Accused in relation to the victim law firm, pre-dated the development of her pathological gambling. The Accused attributed the law firm offence to being “overworked and underpaid during the business closing.” The Accused told Dr. Baxter, “I’d done hours and hours of work that I wasn’t paid for. I’m flat broke, I need some money”. [36] In a more recent consultation with the Accused’s doctor on June 12, 2008, Dr. Baxter confirmed the presence of significant current depression. Dr. Baxter was told, “Pronounced symptoms of depression and anxiety are evident and she is likely struggling with a depressive disorder. She is plagued by feelings of inadequacy, worthlessness, and hopelessness, and she perceives herself to have few coping skills or resources. Her self-concept is poorly established and her self esteem is fragile. Ms. Alexander’s insight into her emotional functioning is poor and somatic symptoms are likely to be evident.” [37] Dr. Baxter states in the Amended Report , “It appears her offending behavior began in the context of financial stress and feelings of entitlement - she felt taken advantage of by her lawyer employers.” [38] Dr. Baxter continues to state, “Her offences at the second employer represented an extension of the same dynamics (i.e., feeling maltreated at her workplace) further complicated by the development of excessive gambling with more dire financial problems. She feels guilt for her actions.” [39] Finally, Dr. Baxter concludes her amended Report by stating,“Regarding recidivism, it appears her risk of re-offending will be practically low, as future employment entailing financial responsibility seems highly unlikely. To ensure a low risk, any occupational or volunteering positions involving financial responsibility should be prohibited. My original recommendation for further mental health and addiction treatment stand.” [40] The Victim Impact Statements were not only adduced into evidence, but read into the record by both Pat Williams and Bruce Williams. VICTIM IMPACT STATEMENTS [41] Briefly they indicated that it took 25 years to build up their family-owned car dealership, and to have a large part of it wiped out by what the Accused did was heartbreaking. She almost “destroyed” the company. As well, as a result of the Accused falsifying the GST returns to cover up what she took from the car dealership, they had to defend themselves and prove their innocence to the Canada Revenue Agency (CRA), the RCMP, and the CPS. They trusted the Accused knowing that her husband was a retired member of the CPS, and that she had worked in a law office. As a result of what the Accused did, they have lost their trust in people and have altered the way they treat new employees. As far as they are concerned, the Accused has made no apologies for her actions, and has made no restitution. Page: 17 STATEMENT BY THE ACCUSED [42] Pursuant to Section 726 of the Criminal Code, the Accused was permitted to address the Court prior to sentencing. She apologized to the victims, and stated that if she could go back eight years, she would change what she did. She was also sorry for the hurt that she has caused to her family. She stated that if she could pay the money back, she would pay back double of what she took. She stated that she was truly sorry. SENTENCING PRINCIPLES [43] In all sentencing cases, the ultimate disposition for an offender must reflect the fundamental purpose and all the principles of sentencing provided for in Section 718 of the Criminal Code. The sentence must be in accordance with the fundamental principle of proportionality found in Section 718.1 of the Code. As well, the sentence in accordance with Section 718.2 of the Code, must account for any relevant aggravating and mitigating circumstances, and be tailored to fit the Accused before the Court. Section 718.2(a)(iii) of the Code expressly provides that abusing a position of trust is an aggravating factor. “Individualized” sentencing, as opposed to “tariff” sentencing, has been endorsed by the Supreme Court of Canada, in R. v. McDonnell, (1997) 1 SCR 948 and R. v. Proulx, (2000) 140 CCC (3d) 449. [44] What are the aggravating and mitigating circumstances in this case? Aggravating 1. The nature of the offences committed by the Accused in this case is grave. Abusing her position of trust, she defrauded a law firm, and then a car dealership. In defrauding the car dealership, she defrauded the CRA. 2. The offences were planned, deliberate and sophisticated. They spanned a period of approximately four years. 3. The total amount of money taken by the Accused from the law firm was $22,136.16. The total loss to the car dealership was $512,200.49. The total loss to the CRA was $364,947.05. The owners of the car dealership paid the CRA back a total of $264,000.00. The loss attributed to the Accused as a result of defrauding the CRA is $99,891.91. The CRA wrote off that amount still owing by the car dealership, because of the cooperation of the owners in paying the bulk of the GST owing. 4. In defrauding the CRA, the Accused exposed the owners of the car dealership to a criminal investigation by the CRA, the RCMP, and the CPS. As well, the car dealership being a small family run business, was almost destroyed by the criminal activity of the Accused. Page: 18 5. The Accused’s motivation for committing the fraud against the law firm was financial stress and feelings of entitlement. She felt the lawyers in the law firm had taken advantage of her. 6. The Accused’s motivation for committing the fraud against the car dealership was both her feelings of being maltreated by her employer, and her pathological gambling addiction resulting in acute financial stress. 7. The Accused’s motivation for committing the fraud against the Canada Revenue Agency was to cloak the money she was taking from the car dealership. 8. The Accused did not co-operate with the authorities in terms of tracking the loss to either the law firm or the car dealership, and has made no restitution. Mitigating 1. The Accused entered guilty pleas to the charges. 2. The Accused has no prior criminal record. 3. At this point in time, the Accused and her husband have lost everything. The Accused is unemployed and has declared bankruptcy. It is highly unlikely that the she will ever again obtain any meaningful employment with financial responsibility. 4. As a result of the offences and the aftermath, the Accused suffers from significant depression. She is taking prescribed antidepressant medication. She has low self-esteem and a sense of worthlessness. She has attempted suicide in the past, and family members are concerned that she might try again. In addition, she has other unresolved personal issues and is under the care of both a physician and a personal counselor. 5. The Accused has made attempts to address her pathological gambling addiction through AADAC and Gambling Anonymous. She also signed a self-exclusion agreement with the casinos in Calgary. 6. The Accused has removed herself from the temptations found in Calgary. She left the Province and is now living with her husband on a farm in a remote part of British Columbia. Her family is supportive of her. 7. The risk of recidivism for the Accused is low. 8. Although the Accused, to date, has made no restitution, the Court was informed by Defence Counsel that the Trustee in Bankruptcy holds Page: 19 approximately $25,000.00 in trust, from the sale of the Accused’s home that could be disbursed as partial restitution. CONDITIONAL SENTENCE ORDER [45] Having regard to the provisions of Section 742.1 of the Criminal Code and the principles enunciated by the Supreme Court of Canada, in Proulx, supra, the pre-requisites to the granting of a CSO are as follows: 1. No minimum term of imprisonment is prescribed; 2. Neither a penitentiary term nor a probation order is appropriate; 3. Serving the sentence in the community would not endanger the safety of the community; and 4. Serving the sentence in the community would be consistent with the fundamental purpose and all the principles of sentencing. [46] In my view, I need go no further than the second pre-requisite. Clearly, a global penitentiary term of imprisonment is appropriate in this case. There are no exceptional circumstances such as those found in cases like Coulson, supra, and others, that would make a CSO appropriate in this case. A CSO is not available to the Accused in this case. [47] If I am wrong, I am also not satisfied that the fourth pre-requisite is met. In my view, the offences are grave and the moral blameworthiness of the Accused is high. A CSO would not be consistent with the proportionality principle. As well, this case calls for a punitive as opposed to a restorative sentence. A CSO would not properly address the principles of denunciation and deterrence in the circumstances of this case. DISPOSITION [48] Considering the fundamental purpose and all the principles of sentencing, the aggravating and mitigating circumstances in this case, and bearing in mind the totality principle, the Accused is sentenced as follows: Information Docket Number 071274633P1 Count 1 - 6 months’ imprisonment Count 3 - 3 years’ imprisonment Information Docket Number 061407722P1 Page: 20 Count 6 - 1 year imprisonment [49] Each sentence will be consecutive. The global sentence is 4½ years’ imprisonment. [50] Pursuant to Section 738(1) of the Criminal Code, the Accused will make restitution to the victims as follows: Park Wenngatz - $22,136.16 Centaur Import Motors Ltd. - $499,870.75 Canada Revenue Agency - $99,891.91 [51] Finally, there will be no Victim Fine Surcharge. Dated at the City of Calgary, Alberta, this 29th day of September, 2008. T.C. Semenuk A Judge of the Provincial Court of Alberta Appearances: S. Mulligan for the Crown - Alberta Justice R. Constantinescu For the Crown - Public Prosecutions Service of Canada B.Q.H. Der, Q.C. for the Accused
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