R. v. Saundercook-Menard, 2008 ONCA 493
COURT OF APPEAL FOR ONTARIO
DOHERTY, JURIANSZ JJ.A. and KENT J. (Ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JOANNE SAUNDERCOOK-MENARD
Appellant
Brian H. Greenspan and Seth P. Weinstein for the appellant
Michael Bernstein for the respondent
Heard & released orally: June 13, 2008
On appeal from the judgment of Justice Bonnie J. Wein of the Superior Court of Justice dated January 5, 2007.
ENDORSEMENT
1We are not persuaded that s. 426(1) of the Criminal Code requires proof that acceptance of the benefit, which is admitted in this case, actually influenced the appellant in the way she conducted the affairs with her employer. As we read s. 426(1), the offence is established by proof that agents have, by accepting a secret benefit, placed themselves in a position of conflict of interest without alerting their principals. That was the case here. We have considered the other grounds in the appellant’s factum, but have concluded they are without merit. The conviction appeal is dismissed.
2In imposing sentence, the trial judge carefully explained that the appellant could not expect to receive as light a sentence as received by her superior, who planned and set up the scheme, because he had pleaded guilty at an earlier stage and had cooperated with the authorities in prosecuting others.
3That said, the trial judge conclusion that a jail term was necessary was based on her characterization of the appellant’s crime as a well-planned fraud upon the public purse. In our view, the record does not support this characterization.
4First, the secret money was paid to the appellant out of the account of a private company.
5Second, while secret payments were made, the evidence did not establish the existence of a fraud.
6Third, while in most cases it may well be fairly inferred that kickbacks paid by companies that contract with government entities have the effect of inflating the cost of the goods and services purchased, the evidence in this case is to the contrary. Here, the evidence established that neither the amount of the contract between the private company and the school board, nor the amount of the grant made by Human Resources Development Canada to the school board was inflated by the kickback scheme. Rather, the evidence establishes that the amount of the grant was determined and the contract with the private company was executed before making of any secret payments was even discussed.
7Having decided that the trial judge erred in concluding that the jail time was necessary because there had been a fraud on the public purse, it falls to us to determine the appropriate sentence.
8Despite the seriousness of the offence in contributing with the culture of dishonesty in school board affairs, we take particular note of the following factors:
The appellant had no prior record;
She made full restitution;
The conviction had had a devastating impact on her – she has lost her employment and career with the school board;
She played a junior role in setting up the scheme that was orchestrated by her immediate superior;
While her charges were outstanding, she cooperated with the police and testified for the Crown in respect of more serious allegations.
9We believe that the trial judge aptly caught the nature of the appellant’s involvement by saying: “The cumulative effect of all of this evidence leads to the inescapable conclusion that she knew that what she was taking was wrong. Hers was simply a willing, if naïve, acceptance of improper payments that others were also getting.”
10In all the circumstances, we would allow the sentence appeal, set aside the term of imprisonment imposed and replace it with a conditional sentence of eighteen months.
“D. Doherty J.A.”
“R.G. Juriansz J.A.”
“J.C. Kent J. (ad hoc)