Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Roberta Sampson
Before: Justice Richard Blouin
Guilty Plea: October 6, 2015
Sentencing Submissions Heard: February 25, 2016
Sentencing: March 10, 2016
Counsel:
- Ms. Lindsay Kromm — counsel for the Crown
- Mr. Antonio De Marco — Counsel for the defendant Roberta Sampson
BLOUIN J.:
Introduction
1Roberta Sampson started working at Canadian Tire when she was 17. Eventually she obtained positions in the corporate office which allowed her access to a corporate MasterCard. Between March, 2004 and March, 2012, she submitted claims for reimbursement of expenses which she did not actually incur, used the MasterCard for personal expenses, and misdirected vendor refunds for her own personal use. On May 6, 2013, Ms. Sampson was interviewed by Canadian Tire representatives where she acknowledged wrongdoing. It is agreed that the amount of loss to Canadian Tire totals $232,566.
2On October 6, 2015, Ms. Sampson entered a guilty plea to Fraud Over $5,000. The Agreed Statement of Facts was eventually submitted as Exhibit 1. Sentencing was remanded to January 14, 2016. I ordered a Pre-Sentence Report, now Exhibit 3. Unfortunately, the defendant's father died on January 8 and the sentencing was adjourned to February 25. Extensive submissions were made by both parties. I heard from Ms. Sampson. The Crown tendered a Victim Impact Statement (Exhibit 2), and defence tendered reference letters (Exhibit 4), and a letter from Canadian Tire dated February 25, 2013 outlining a proposed termination of employment package (Exhibit 5).
Position of the Parties
3The Crown submits that a conditional sentence would not be consistent with relevant sentencing principles regarding large-scale frauds, and asked this court to impose a 10 month jail sentence. In addition, a stand-alone restitution order for $232,566 should be ordered, along with a DNA databank sample. The defendant argues that sentencing principles can be met with a conditional sentence of two years less one day. During the conditional sentence and a suggested three year probation period, the defendant could make restitution payments between $500 and $1,000 per month, and pay the remainder of loss to Canadian Tire by way of a restitution order. Mr. De Marco urged me to calculate the loss to Canadian Tire by subtracting from $232,566 an amount which his client would have received through termination but did not receive.
Aggravating Factors
[4]
The fraud was a breach of trust of an employer.
The fraud was to some degree sophisticated in that it was perpetrated successfully over a long time period (2004-2012).
There appears to be no motive other than greed, and boosting self-esteem.
The Crown submits that although not strictly aggravating, a mitigating factor of some restitution made was not present in this case. The defendant has made no restitution. This in the context of employment wherein she is paid in the area of $100,000 per year.
Mitigating Factors
[5]
The defendant is 37 years old with no criminal record.
The defendant entered a guilty plea as an expression of remorse which saved significant court time and resources.
The defendant has been on bail since June 4, 2013, with terms that restrict the type of employment she could engage in, without incident.
The defendant admitted wrongdoing to her employer (May 6, 2013) before the police had been contacted.
The defendant is a single parent and the primary caregiver and sole financial support for her three and a half year old daughter.
The defence submits that although not strictly mitigating, the victim is a large corporation, and not a devastated vulnerable individual.
Victim Impact Statement
6John Carr, Manager Corporate Investigation, prepared the Victim Impact Statement on behalf of Canadian Tire. He spoke to the time and resources involved in the investigation, and that the violation of trust that included not just the company, but also a number of key vendors. The highly visible violation of trust could effect the perception of a number of employees. Mr. Carr requested full restitution.
Pre-Sentence Report
7Ms. Sampson was born in Nova Scotia to a teenage mother. She never met her biological father. The person she knew as her father died unexpectedly January 8, 2016. Ms. Sampson started part-time as a cashier at Canadian Tire as a teenager, and worked her way to the position of Manager of Talent Acquisition. She separated in 2011 from an off/on relationship with the father of her daughter (Scott Sawyer). Mr. Sawyer contributes to his daughter's rearing (she will be four in April), but Ms. Sampson remains as the sole financial support for the child. After termination from Canadian Tire, Ms. Sampson obtained a position with a boutique staffing agency, and now earns approximately, $100,000 per year.
8The probation officer observed genuine remorse shown by Ms. Sampson towards her former colleagues for her actions and wrote that she did not attempt to minimize her responsibilities for the offence.
The Law
9In cases of large-scale fraud, general deterrence and denunciation are the prime sentencing principles. For quite some time, the principle has existed that a person in a position of trust that steals from an employer must expect a term of imprisonment absent exceptional circumstances: R. v. McEachern (1978), 42 C.C.C. (2d) 189 (Ont. C.A.). S. 718.2 of the Criminal Code provides that an abuse of trust in relation to the victim shall be deemed to be an aggravating factor. In R. v. Dobis (2002), O.J. 646, the Ontario Court of Appeal states that conditional sentences have traditionally been rejected in large-scale fraud cases. Both parties, however, agreed that this offence occurred in an eight year period ending before s. 742.1 of the Criminal Code was amended (November 20, 2012) to disallow the consideration of a conditional sentence. Therefore a conditional sentence is not statutorily prohibited here.
10A plethora of authorities were presented by both sides which, in varying degrees of similarity and dissimilarity to this case, provided support for the imposition of an institutional custodial sentence. However, there were many cases where a conditional sentence was imposed: see R. v. Gasparetto, [2008] O.J. No. 3840; R. v. Robinson, [2003] O.J. No. 4722 (S.C.J.); R. v. Neblett, 2009 CarswellOnt 4673; R. v. Adams, 2009 ONCJ 383 , [2009] O.J. No. 3442; R. v. A.(J.), [2003] O.J. No. 2167; R. v. Dinardo, [2001] O.J. No. 2839; and R. v. Moore, 2013 ONCJ 421.
11The necessary pre-conditions for imposition of a conditional sentence involve:
the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
the court must impose a term of imprisonment of less than two years;
the safety of the community would not be endangered by the offender serving the sentence in the community; and
a conditional sentence would be consistent with the fundamental purpose and principles of sentencing prescribed in ss. 718 to 718.2 of the Criminal Code.
12It is only the fourth pre-condition that the Crown takes issue with. It argues that general deterrence and denunciation are fundamental principles of sentencing that it contends cannot be satisfied by a conditional sentence.
13However, Justice Spies in R. v. Gasparetto (supra) summarizes the position of the Supreme Court of Canada on the issue of deterrence at paragraph 42:
Chief Justice Lamer stated in Proulx, however, that the stigma of a conditional sentence with house arrest should not be underestimated. Although incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence, he cautioned that courts should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive.
Findings
14As indicated above in paragraph three and four, if restitution is ordered, there is a dispute as to what amount. I can decide that issue quite quickly. Although there is initially some attraction to the submission that the amount Canadian Tire should be compensated as a result of the fraud, be reduced by the amount the defendant was to receive from Canadian Tire upon her termination, I decline to engage in that calculation.
15In my view, the amount defrauded is certain ($232,566). The amount of the termination settlement is not certain. That will be determined in the appropriate forum at the appropriate time. I am in no position to assess the relative merits regarding this issue, and I will not do so.
16What I can say is that Ms. Sampson's entitlement to termination which had been proposed to her in February of 2013 has been put at risk by the discovery of the fraud a few months later. Accordingly, I consider that risk to be one of the negative consequences that has attached to the defendant resulting from her criminal conduct that ought to be factored into the determination of an appropriate sentence.
17In my view, given the case law, it would be unassailable for a judge to conclude the appropriate length of sentence, in circumstances such as this, to be that of 12 to 18 months in jail. Ms. Kromm in her usual thoughtful and balanced way, takes the position that 10 months in jail is appropriate when recognizing the cogent mitigating factors. I will disclose that, initially, I held that view.
18However, after reviewing the case law in depth and listening to defence submissions, including what I determined to be an expression of genuine remorse and a desire to make reparations from the defendant, I conclude that a conditional sentence will satisfy the relevant sentencing principles. I come to that conclusion for three primary reasons.
19One, a conditional sentence can be fashioned that will be "sufficiently punitive". It will be for a longer term than the alternative jail term of 10 months. It will include a significant deprivation of liberty. It will involve timely restitution. And it will require community service.
20Two, Ms. Sampson has a three and a half year old child whose psychological development would likely be significantly affected by the removal of her mother for a period of somewhere between three and six months (if I imposed 10 months of jail).
21Three, if Ms. Sampson receives a jail term, she will in all likelihood lose her employment. Her ability to secure another job, and certainly another well-paying job, would be unlikely given her criminal record. That development would not only compromise the future of Ms. Sampson and her child, but would also make the prospect of compensating the victim much less likely. She needs to be working to pay restitution.
22As indicated above, I intend to construct this conditional sentence to be punitive so as to denounce this conduct and to deter others from engaging in it. The sentence will be two years less one day of house arrest. This is a significant deprivation of liberty. Ms. Sampson will pay restitution of $1,000 per month throughout the term of this conditional sentence, and throughout a three year term of probation. Ms. Sampson will be required to pay the balance of the restitution by way of a stand-alone restitution order. Ms. Sampson will perform 200 hours of community service: 100 hours while serving the conditional sentence, 100 hours while on probation.
23I will now outline the terms of the conditional sentence, probation, and restitution orders. Attached are the Conditional Sentence Order and the Probation Order.
Released: March 10, 2016
Signed: "Justice Blouin"