R. v. Elliot, 2021 ONCA 909

COURT OF APPEAL FOR ONTARIO DATE: 20211217 DOCKET: C67429

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Brenda Elliot Appellant

Ryan Heighton, for the appellant Samuel Greene, for the respondent

Heard: December 16, 2021

On appeal from the conviction entered on May 23, 2019 by Justice Catrina D. Braid of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

I. Background in Brief

1The appellant was the Executive Director of a non-profit agency that supports adults with disabilities living in the community. The agency is funded through government grants, donations, and fundraising. The appellant exploited her position of trust at the agency by stealing thousands of donor and taxpayer dollars. She committed the offences by misusing her work credit card, forging a signature on a cheque, and forging an expense report for which she sought and received reimbursement. She was charged with fraud over $5,000 and two counts of uttering a forged document.

2The appellant has worked for decades in the medical, long-term care, and retirement industries. Before these offences, she was convicted three times for fraud over $5,000 and three times for uttering forged documents. While on bail pending trial for these offences, she was caught forging a vulnerable sector check while attempting to get work in the same sector.

3The appellant brought a pre-trial s. 11(b) Charter application, arguing that her right to a trial in a reasonable time had been breached.

4The Information was sworn on October 8, 2015 and the appellant was arrested and charged on October 15, 2015. The matter proceeded to trial on May 13-23, 2019. The application judge found the total delay was 43 months and 17 days. Applying the R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 framework, she calculated defence delay as 18 months and 10 days. Once defence delay was deducted from the total delay, the net delay was 25 months and 25 days, which is below the Jordan presumptive ceiling. Accordingly, she dismissed the application.

5After a jury trial, the appellant was convicted of all three offences and sentenced to three years in custody less credit for two days of pretrial custody.

II. Issues on Appeal

6On appeal, the appellant submits that: (1) the application judge erred in finding that her s. 11(b) rights were not breached; and (2) the sentence is demonstrably unfit.

III. No Error on the Section 11(b) Application

7The appellant submits that the application judge erred in finding that two discrete periods were defence delay. The first period is from April 16 to May 10, 2018, when the defence was not available to proceed at the earliest preliminary hearing date offered due to prior trial commitments. The second period is from October 1 to December 3, 2018, when the defence was not available for the first set of pre-trial motions and trial dates the court offered.

8The application judge’s reasons are exemplary. We see no error in her attribution of defence delay. However, even if she did err, the net delay would be 28 months and 24 days, which is below the presumptive ceiling. The application judge’s unchallenged factual findings foreclose the appellant from discharging her onus of proving the below-ceiling delay was unreasonable.

IV. No Basis to Interfere with the Sentence

9The appellant makes two primary submissions in support of her contention that the sentence is demonstrably unfit.

10First, she submits that the sentence offends the step principle. She points to the fact that prior to this matter, she was sentenced in 2012 for three counts of using a forged document, for which she received a conditional sentence of two years less a day and twelve months’ probation. Therefore, she argues, the global sentence of three years imposed in this case is a significant and unwarranted deviation from the step principle.

11We do not accept this submission. The sentencing judge considered the step principle and rejected the argument that a modest increase from the appellant’s prior conditional sentence (plus probation) was warranted. She noted that the appellant was previously sentenced to three different conditional sentences of increasing duration and that she still has an outstanding restitution order of $72,000 (from 2004) to which she has made no contributions.

12While mindful of the step principle and the need to consider the appellant’s prior sentences, the sentencing judge found that the gravity of the offences, the appellant’s moral culpability, and the grave risk the appellant would re-offend warranted a penitentiary sentence.

13Second, the appellant submits that the sentencing judge did not adequately consider parity and proportionality. This submission rests, in part, on the dollar amount of the frauds she committed in these offences, compared to those she committed in the past. The total amount of the fraud in the present case was $9,788.64. However, the appellant repaid $1,297, so the total loss to the agency was $8,491.64. The appellant says that this is a “de-escalation” from her prior convictions because the past frauds were for $72,000 and $23,000 respectively.

14We do not agree that the sentencing judge erred by failing to consider the parity principle and proportionality. As the sentencing judge noted, a broad range of sentences has been imposed in these types of cases and much turns on the individual circumstances of the offender and the case. She correctly identified that denunciation, specific deterrence, and general deterrence were of primary importance in this case.

15The sentencing judge considered the appellant’s circumstances including her: pattern of defrauding employers and uttering forged documents; dubious prospects of rehabilitation, given her lack of insight into the impact of her actions on the agency, her unwillingness to accept responsibility for the offences, and her inability or unwillingness to take advantage of prior opportunities for rehabilitation; and, grave risk of re-offending.

16The sentencing judge also considered the aggravating factors: the significant impact of the offences on the victims, a non-profit organization, its volunteer board, and those in the community who depend on the agency for services; the appellant took advantage of the high regard in which she was held because of her position with the agency; the offences were a breach of trust; the stolen funds were used for non-essential goods; the appellant continued with deceit when confronted; and, the appellant’s criminal record consists entirely of related convictions for fraud on employers.

17The sentencing judge noted the mitigating factors: the appellant’s partial repayment of the stolen money and her acceptance of some elements of the offence.

18There is no basis on which to interfere with the sentence imposed.

V. Disposition

19Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.