R. v. Banoub, 2019 ONCJ 681

Court File and Parties

Court File No.: Halton 17-1638 Date: 2019-09-25 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Maria Theresa Banoub

Before: Justice D.A. Harris

Heard on: May 29, 2019, August 21, 2019 and September 25, 2019

Reasons for Sentence released on: September 25, 2019

Counsel:

• Monica Mackenzie, Victoria Reid and Mary Ward, for the Crown
• Gloria Dykstra, for the accused Maria Banoub

Judgment

D.A. HARRIS J.:

Introduction

1Maria Theresa Banoub pled guilty to theft over $5000 which occurred between May 2, 2012 and March 1, 2016.

2This is an indictable offence.

3She is before me today to be sentenced.

4Crown counsel suggested that I should sentence her to imprisonment for one year, followed by probation.

5Counsel for Ms. Banoub suggested that I impose a conditional sentence of imprisonment, followed by probation.

6I find that a sentence of imprisonment for six months, followed by probation for three years is the appropriate sentence here.

7My reasons for this are set out under the following subject headings:

1. The law regarding conditional sentences of imprisonment;
2. The fundamental purpose and principles of sentencing;
3. The offence;
4. The impact on the victims;
5. The background of Ms. Banoub; and
6. Analysis

Conditional Sentence of Imprisonment

8The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

9The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

10The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

11Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

12The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

13In Ms. Banoub's case, the first four prerequisite criteria have been satisfied.

14Her offence was not excluded pursuant to section 742.1 for part of the time that she committed that offence.

15Nor is it punishable by a minimum term of imprisonment.

16Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

17Finally, I find that Ms. Banoub serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has not been in any further trouble since being charged more than three years ago. Her offence was committed under circumstances that are unlikely to occur ever again. I am satisfied that, with the appropriate safeguards in place, there is no danger that she would return to crime following the imposition of a conditional sentence.

18That then leaves the question of whether a conditional sentence is appropriate in all the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

19The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

20The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

21The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

22Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

23He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

24He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

25On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

26Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

27Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

28I note that numerous decisions of the Ontario Court of Appeal preceding the enactment of this section of the Code had already stated that a judge must at least consider imprisonment when sentencing someone for a breach of trust. I note further though that there were still many non-custodial sentences and even conditional discharges imposed for such offences.

29The offence has had a significant impact on the victims, considering their ages and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

30Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

31Section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

32The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

33In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders.

34The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

35Before imposing a custodial sentence upon a first offender the sentencing court should explore the other dispositions which are available and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

36In R. v. Lacasse, the Supreme Court of Canada stated that:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

37The Supreme Court also noted in Gladue v. The Queen, supra, that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

The Offence

38Ms. Banoub is the daughter of Teresa Koszler.

39On September 19, 2011 Ms. Koszler appointed Ms. Banoub to be her Power of Attorney for Personal Care and Property. In accepting this appointment, Ms. Banoub agreed not to accept any compensation.

40At that time, they both resided at 497 Sandmere Place, Oakville. This was the family home since 1975 when it was purchased by Ms. Koszler and her husband. In 2011, Ms. Koszler added Ms. Banoub to title as a registered owner holding her interest in trust for her mother.

41On May 24, 2012 Ms. Koszler entered the Northridge Long Term Care Home in Oakville. She had already been diagnosed with Vascular Dementia. Ms. Banoub signed the Accommodation Agreement and an Automatic Payment Plan Authorization form as her mother's representative. Copies of the Power of Attorney designations were also provided to Northridge.

42On April 30, 2013 the residence at 497 Sandmere Place in Oakville was sold for $480,000.00. The proceeds were divided, with $104,501.20 paid to Ms. Koszler and $288,002.10 paid to Ms. Banoub pursuant to a direction from Teresa Koszler.

43Ms. Banoub was receiving ODSP until September 2013, when she was cut off as a result of the proceeds from the house sale. She purchased a townhouse with some of the proceeds, but ultimately sold it in September 2014. Her ODSP was reinstated in June 2016.

44In September of 2015, the payments for Ms. Koszler's long term care accommodations began to be returned NSF. Over the next few months, Northridge LTC Home contacted Ms. Banoub by telephone, letter and registered mail about the past due account. Ms. Banoub continually indicated she was experiencing serious medical issues and that she would pay off the outstanding amounts. Ultimately, the matter was reported to police in May of 2016.

45Between May of 2012, when Ms. Koszler entered long term care, and May 2016, when the matter was investigated by police, Ms. Banoub had depleted the monies in Ms. Koszler's bank accounts and investments by $161,000. The amount depleted and owing to Long Term Care appears to be about $161,000.00 in total, the arrears for Northridge being $10,409.54 of this amount.

46The money was spent on such things as gambling, living expenses, and an overseas trip to the United Arab Emirates. The total which could be seen to be spent at the casino was $53,715.00, however there were many cash advances and cash withdrawals, sometimes more than once a day, often at the casino or racetrack.

Victim Impact

47It was the long-term care facility that bore the initial loss here. Since the money was not available, the facility was unable to obtain the money from the bank account. However, Ms. Banoub's mother did not suffer any lower standard of care.

48This does not absolve Ms. Banoub in any way. She took her mother's money and put her mother at risk financially. It is not a mitigating factor that the facility chose not to punish the mother for the sins of the daughter.

49Ms. Koszler has since died. Her daughter embezzling her money was not a factor in this.

50Nine days ago, long after I had heard counsels' submissions, I was sent a Victim Impact Statement prepared by Christine Koszler, sister of Ms. Banoub and daughter of Teresa Koszler. Counsel agreed that it should be entered as an exhibit in these proceedings, subject to further submissions.

51The entire Statement is set out as follows:

There really are no words to describe the emotional impact Marias actions has had on our family.

Maria and I move to Canada together with our parent back in the mid 70's. We were not close. We are 7 years apart in age. My Bother and my other sister live over seas. We were a close family and spent a lot of time with our parents. All of the holidays etc. Our parents were strict but loving and helped us all any way that they could to get us started in life. They treated all 4 of us equal. The door to the family home was always open to anyone who came. Family visited ever summer from over seas.

I loved Maria as a sister and would do anything for her. In my teenage years she was controlling and a mean sister. She always looked for the easy way in life and did not apply herself. I was always there for her along with my parents over the years. Even though she would lie and continually have problems and drama in her life. We were all happy when Maria married and thrilled when she and her husband won 5.5 Million dollars on a lottery. Unfortunately, it did not last long.

I live in Toronto and close enough to be able to visit every weekend since I left the family home in Oakville. I was very close to my parents. I called Mum and Dad every day. I enjoyed taking Mum grocery shopping every weekend and spending a few hours helping out with what ever was needed. After my Father died and my Mother had surgery. It was a long recovery and shortly after she started to show the beginning signs of dementia. Mum would need extra supervision. Maria did not work. She had a car accident and claimed to have neck and spinal pain Maria claimed to be disabled. She was still able to drive and get around. My job was quite demanding. I often worked 10 hrs a day Monday to Friday. By the time I would get home have dinner and feed the dog it would be 8:30 pm. Not enough time for a visit to Oakville. The family thought it was a great idea that Maria live with Mum. Maria was struggling financially after she and her husband split once the lottery winnings were gone. Mum was alone in a 3 bedroom house. We all thought it would be a perfect situation and a win for both of them. Mum paid for groceries and bills. Maria got to keep the disability cheque and whatever other monies she was getting at the time. Mum was then diagnosed with bowel cancer. She survived the surgery but was too weak for chemo. After the surgery, Mums recovery was slow. Family visited there were various nurses and cleaners coming in to help with Mum. Someone would also come and stay for a few hours so Maria would get a break. A couple of the neighbours were also very helpful. I would stay the night on the weekends if Maria needed to go overnight somewhere. Mum even purchased a new car for Maria so she could take her to appointments. it was a worthy expense my mother said. I had to agree.

Within a short time it became obvious that Mums generosity was not enough. Things started to change very quickly. Maria became verbally and mentally abusive to both my Mum and I. She was unhappy and was making lots of demands. She would call me knowing I was unavailable and demand I come to Oakville. She would keep Mum in bed. She said she had physio or pain injection appointments during the day. She would be gone for hours. Leave the cleaners with Mum. and tell them to give mum a sandwich, She would often go out in the evening. My mum would call me crying and depressed. I had to leave work during the day because a neighbour called to say Mum was unsupervised. This is when I stopped going out and only went to work. I was exhausted and could not cope with Marias mental abuse. When family visited from overseas, Maria would create a scene stomp around the house slamming doors. They would leave upset. Maria did this to my Brother and Sister on every visit, Mums adult grandchildren left crying. It would upset us all and make them want to never want to visit again. But they did. As I did. For our Mother.

I would be full of anxiety whenever I would drive to my mothers home in Oakville. Afraid to arrive and hear Marias next demand or attack. She never left my Mother and I alone. If Maria was home, she would stay in her room day and night with her laptop searching dating sites looking for rich men with her fake profile. She let her cats litter everywhere and was lazy to clean up after them. My brother and I visited Mums Dr on his request. He recommended Mum be added to a waiting list for the long term care. I told him Maria was not coping and was abusive and I feared for my mothers health. The Dr suggested it was the best option given the circumstances and he filled out the paperwork. Not long after Mum moved in to Northridge Long Term health care. It was the best thing for Mum because it got her away from my sister and her abuse. She was given the care she deserved and needed. It pains me to say, Mum could have stayed at home a lot longer. Mum had an inheritance to live on from her sister. But it just had to be this way for Mums health and well being.

The house was sold shortly after. I was made to believe the money was going into a trust with the nursing home. The house did not need to be sold. Maria could of continued to live there with a tenant. There was sufficient money in Mums account for a few years along with her pension she received each month.

Even after Mum moved in to the home, I continued to live with anxiety and fear of Maria. I had no idea what Maria was saying or doing I discovered Maria had POA over Mums finances and Health. She obtained this without telling me or the rest of the family. At this point I felt betrayed by my sister and she made me feel that I felt like a broken and had no fight in me.

It is really hard coming to terms with being betrayed by my own Sister. We had talked many times about sharing the POA and doing it all together. Even though Mum had short term memory loss she still had some idea of what had happened to her once she was in the nursing home. She would look at me and say that she new Maria had done something. Unfortunately, I had no idea how far she had gone. I would comfort Mum and say that would never happen. Maria would not do such a thing.

I suspected a lot but had no confirmation until I received a call from Bill Merrick from the public guardians office asking me if I knew where Maria was. I asked why and he went on to tell me how Maria had not paid any of Mums bills in months. At first I was in shock. This obviously meant there was no money left in Mums account, no house. I spoke with the nursing home only to discover bills were not paid for over a year. I then found out Maria had been cashing Mums pension cheques not paying any of Mums bills with it and was leaving Mum with nothing. On one of her last visits to my Mother, Maria went through all my mothers belongings. Clothing was missing and replaced with old ratty used pieces that were Marias. Everything of value including her gold religious necklace she always wore and her wedding ring. I have no idea to this day where any of my mothers valuable items are. Including ones I bought for her myself.

As the story unfolded, I had to prove I was not a part of any of her dealings. I was on the phone day after day finding more and more issues. I had to pay Mums pharmacy bill of approx. $500 because they would not issue anymore medication. I was broke and not working using my credit cards to survive until I would feel well enough to seek employment again. I worked with the nursing home/ the public guardians & trustee's investigator and the police senior abuse investigator to help any way I could. I had no way of paying for a lawyer. Or the rest of the debts that were unfolding. Maria also denied my mother any dental care. I was told the nursing home that mums dentures were broken and Maria refused to fix them. I immediately had a dentist visit and paid $500 to get the dentures repaired. Suddenly I had calls from creditors and landlords looking for My sister and my mother. I discovered Maria had debt everywhere in my mothers name. It was a very overwhelming time. I felt embarrassed to tell anyone what I was going through and became very distant from my friends and my family. All my relationships suffered. I almost lost my partner over it all because I cried all the time. I was curled up in a ball on my couch depressed for the next 2 years. I only left the house to visit Mum and buy groceries.

I became obsessed with finding out what happened. Where did all the money go. Maria was no where to be found. I actually thought she had left the country. I eventually found a woman through Facebook who befriended Maria. She her family and church helped Maria when she was about to be evicted. They set her up in a hotel and got her on her feet. She eventually confronted Maria who then had admitted to taking all of my Mothers fortune and spending it with no remorse. I learned she was in casinos playing the slots and tables, took trips around the world. Dubai, Egypt, England, Amsterdam, Germany Poland And more. Leaving my demented Mother behind with out a care to die in a nursing home with thousands owing in outstanding bills. Not a penny to her name or her even her wedding ring. She told the staff she had a rare type of stomach of cancer similar to the one Rob Ford the former decease mayor of Toronto had. It was all lies that people believed and felt sorry for her and even questioned me about saying I should see her because she is so sick. Eventually Bill Merrick the was able to contact Maria he asked her to sign over the POA to me. She refused. We then realized it was going to be a difficult journey. We had to prove she was not able to be the POA any longer due to her neglect. The continued lies and stories will haunt me for the rest of my life. To this day there has been no apology. I don't expect there will be. There will never be forgiveness for something so disgusting. My mother suffered a lot in her life. She did not deserve any of this. I can take some comfort in the fact that she is now resting in peace. My mothers dementia prevented her from feeling the pain and suffering.

My Mother cried many tears over Maria during her life. She never turned her away. Even when Maria was verbally abusive. It pains me to my core that Maria had so little value for my Mothers and Fathers hard earned money. I get panic attacks imagining how my sister planned this all to punish us all in her way for her miserable existence. I still suffer from anxiety. I am not nearly as happy as I used to be. I have a lot of trust issues and I am on medication and seeking therapy. I have a lot of bad days where I get depressed, sad and in a mood for days at a time thinking about how my sister took advantage of my Mother during the most vulnerable time of her life. I think about it daily.

I don't know why my sister did what she did. I have learned a lot about what she is capable of from the investigation leading up to her arrest. She planned and succeeded to betray the family and steal our mothers small fortune. She was manipulative and lied to get what she wanted. It is a fact that Maria lied about having cancer to the staff of the nursing home and another lady and her church group to extort help and money. She poses as a religious Meme writer on the internet on Facebook while leaving her mother to rot in an nursing home without a penny. I fear for anyone who gives her a minute of their time. She will make up stories to extort money and favours from anyone. I believe that my Maria is a threat to any person she feels she can benefit from. Locking her up without a computer is the only way to stop her finding another victim. The last conversation I had with Maria. I asked her if she will ever change. She proudly said NO! I personally never want to see her again after her sentence. I pray she is never given the opportunity to take advantage of anyone else again.

I completed this statement on behalf of my Mother. I felt it was important that I speak on my Mother s behalf. My Mother is the victim. I am writing this on her and my behalf.

52Counsel for Ms. Banoub made further submissions today, expressing her concerns about the contents of this statement. Crown counsel agreed that these are valid concerns. So do I.

53Section 722(1) of the Criminal Code provides that:

When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

54The Victim Impact Statement here goes well beyond describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence. It contains many allegations of serious wrongdoing by Ms. Banoub that are not part of the Agreed Statement of Facts. They are not part of the case before me. Accordingly, pursuant to section 722(8) of the Criminal Code I have disregarded those allegations in my determination of the appropriate sentence.

55I have also disregarded allegations that Teresa Koszler suffered any diminished level of care as a result of Ms. Banoub's actions. This too was not part of the agreed facts placed before me.

56I am taking into account the impact that the offence had on the estate of Teresa Koszler and note that the Victim Impact Statement puts a more human face on the Estate.

57I note that I was not told the identities of the beneficiaries of the estate.

58Finally I am taking into account the serious effect that this had on Christine Koszler emotionally.

Background of Ms. Banoub

59I received a Pre-Sentence Report which provided me with the following information.

60Maria Teresa Banoub was born on August 5, 1954 in England. She immigrated to Canada with her family in 1974 or 1975 and primarily resided in the Mississauga, Oakville, and Hamilton areas. She is currently residing in a rental basement unit in the Hamilton area.

61Her parents were married for approximately 55 years until her father's passing around 2005. Their union was "good", but they were "preoccupied" following their immigration from Poland to England and were "busy with work" and caring for four children. During her formative years, Ms. Banoub had a close relationship with her grandmother who visited daily. Her relationship with her parents was "strained".

62She is the second born of four children but has no contact with her siblings or other extended family members. She wrote her siblings a letter expressing her anger and frustration about caring for their mother around 2013. She attributed this to "being exhausted and ill [her]self'. She had no contact with her mother after 2015. Her mother had dementia at that time.

63Ms. Banoub was sexually abused in England from the age of 5 to 11 years old by two male neighbours and one male family member. She first discussed the abuse with a psychiatrist in her 30s.

64She achieved a grade 12 level of education plus a one-year community college program for English, typing and business in England. She also attended computer, administrative and flower courses, receiving an Administrative Assistant diploma in 1993 and a floral design diploma in 2002.

65She has worked in secretarial and banking roles in England and Canada. She worked for a personal care company as a North American Account Manager for duty-free products for four years until she broke her leg in 1993.

66In 1995 she met a man through a newspaper classified section advertisement. They dated for approximately eight months and then married. He had two children from a prior relationship.

67She operated a flower shop that was owned by him from 2004 until 2006 when they separated. After his verbal abuse, some physical abuse and his infidelity, she "had enough" and "chose to leave".

68They are still legally married as he never attended court and she believes him to be residing in Egypt.

69She says that she "lost money in the sale of the matrimonial home". She also reported that her ex-husband won a $5 million lottery in Toronto in 1996 but I was not told what happened to this money.

70She received ODSP from 2007 to 2013. She was cut off as she received the proceeds from her mother's house sale. She purchased a townhouse with some of the proceeds, but ultimately sold it in September 2014. Her ODSP was reinstated in June 2016. It will soon be replaced by CPP now that she is 65.

71Ms. Banoub indicated that her mother also "gave [her] money" from 2007 until 2013.

72She has no significant savings and owes approximately $15,000 in credit card debt.

73Ms. Banoub first seriously experimented with alcohol when she was approximately 19 years old. She consumed more alcohol in her 20s and 40s during her marriage. Her alcohol use also affected her life in a negative way between 2011 and 2015 when she started drinking more after her mother entered the nursing home and she lived in her parent's home alone. Her alcoholic beverage of choice was red wine. She has not consumed any alcohol since 2016.

74She was prescribed a myriad of opiates from 1993 onward due to a broken leg. Her narcotic usage affected every relationship in a negative manner. She also used marijuana from 2015 to 2017 but has halted such and now only takes some prescribed medications for physical health ailments. She reportedly took Suboxone for one month in October 2015 and then "quit everything".

75She told the author of the Pre-sentence Report that she "has nobody" and "prefers not to be hurt anymore" as she experiences trust issues. She spoke of one friend who no longer wanted to associate with her after her arrest. She now spends most of her spare time walking and writing articles and motivational messages for a website. She does not currently participate in any regular organized activities but she enjoys thrift store shopping for angels to donate to an agency.

76With respect to dealing with anger, frustration, or stress, she indicated that she "let[s] things fester", will "bottle things up and then get angry and verbally lash out with hurt feelings" or will "let things slide". In regard to personal weaknesses, she indicated that she does not "really care anymore" and that it is "too late to change". When asked to describe her strengths, Ms. Banoub identified that she is a "strong person" who "battles addiction every day" and "keep[s] [her]self busy".

77She experiences physical health issues for thyroid and cholesterol issues, for which she is prescribed medication. She was also diagnosed with depression from 1993 onward following her broken leg. She met with two psychiatrists in the 1990s, developed an opiate addiction and had been placed on anti-depressants, all of which she halted taking by 2015. Ms. Banoub acknowledged contemplating suicide on three occasions (1993, 2004 and 2018), but has since "turned to God" and developed "good coping skills" by reading a self-help book. She remains connected with her family doctor through a walk-in clinic in Hamilton.

78Ms. Banoub has no prior criminal record.

79With respect to the criminal matter before the court, the subject reflected that she was the designated Power of Attorney for her mother from 2012 to 2016 and she offered "no reason" as to why she committed the offence. She was "gambling at casinos, drinking and taking prescription medications" and "didn't have a clue what [she] was doing". She believes that she spent over $160,000.00 on a trip to Dubai, gambling and "living" expenses between 2012 and 2016. She feels "terrible" and feels "such remorse" when reflecting on her behaviour, adding that she "will never be in the same position again". She "think[s] with a clear head today", which she "wasn't doing before". In hindsight, she "would have pursued money owed to [her] by family and [her] ex-husband", particularly since he reportedly won a lottery.

80Her future goals consist of continuing to write articles and motivational messages for a website, repairing angels that she purchases from thrift stores with plans to donate them to an agency and going for walks, which all assist with maintaining her sobriety. Ms. Banoub reflected that she "wanted to write a book but [her] sisters wrote negative things about [her] on social media".

81The Pre-sentence Report concludes that it would appear that she would be a suitable candidate for community supervision.

Analysis

82Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

83Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

84The primary objectives in sentencing Ms. Banoub, a first offender, are individual deterrence and rehabilitation, but general deterrence and denunciation are clearly important principles of sentence given the seriousness of the offence.

85I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Ms. Banoub and yet, at the same time, one that is responsive to her unique circumstances.

86I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

Aggravating Factors

87The most aggravating factor is that instead of taking care of her mother, she took advantage of her.

88She treated her mother's money, which was entrusted to her on a fiduciary basis, as if it were her own.

89She spent $161,000 on such things as gambling, living expenses, and an overseas trip to the United Arab Emirates.

90She took this money over a period of four years.

91She took this money despite having been gifted $288,000 following the sale of her mother's house. In mentioning this, I am not imputing any wrongdoing in Ms. Banoub receiving this money. It is simply an aggravating factor that this gift was not enough to satisfy her greed. Instead she stole the rest of her mother's assets.

92In the process she put her mother at risk of being denied the same level of services which she had been receiving at the long-term care facility.

93As I stated earlier, it is not a mitigating factor that the facility chose not to punish the mother for the sins of the daughter.

94As a result of its forbearance, the facility is out financially.

95There was a significant emotional toll for Christine Koszler.

96Finally, the assets of the Estate of Teresa Koszler have been significantly reduced. I do not know how much of this would have gone to various creditors. I also do not know who the beneficiaries would have been. I recognize that Ms. Banoub might be at least one of them.

Mitigating Factors

97There are some mitigating factors.

98She has no prior criminal record.

99She lived with her mother for some considerable time and took care of her.

100The amount of mitigation that can be derived from these facts is diminished however when one considers the fact that it was these very qualities which led to her being in a position to breach her fiduciary trust.

101She pled guilty. I take that to be an acceptance of responsibility for her actions and an expression of remorse. It also made it unnecessary for anyone to have to testify in court about these disturbing events.

102She continues to express her remorse for what she has done.

103There are limits to that expression of remorse however. She has not paid back any of the money. She has not begun any meaningful counselling. She has not given anything back to the wider community in the form of volunteer service. She has not done any of these things despite the passage of years since she was charged. None of this constitutes an aggravating factor on sentence. On the other hand, Ms. Banoub is ineligible for the significant mitigation of sentence that would have gone her way had she done any of these things.

104To her credit, she has not committed any further offences since being charged. That speaks well for her prospects of rehabilitation. I do note however that it may also reflect the fact that she has not been in a position to commit further offences during that time.

Conditional Sentence Analysis

105After considering all of the above, I am not satisfied that a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing.

106I am satisfied that the circumstances are such, and the offence is of such gravity that no sentence other than imprisonment for at least six months is appropriate here.

107I will add that this is the same conclusion that I had reached prior to receiving the Victim Impact Statement.

Probation Conditions

108This should be followed by probation for three years.

109In that regard, I note that the relevant portions of section 732.1(3)(h) of the Criminal Code read as follows:

732.1(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(h) comply with such other reasonable conditions as the court considers desirable….for protecting society and for facilitating the offender's successful reintegration into the community.

110The Supreme Court of Canada has stated that reasonable conditions will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community.

111The residual power to craft individualized conditions of probation is very broad. It constitutes an important sentencing tool. The purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code makes it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender. A sentencing judge is to craft conditions that are tailored to the particular offender to assist in his rehabilitation and protect society.

112In this case, a probation order will prohibit Ms. Banoub from putting herself in a position of trust with respect to any other person for a full three years.

113Further, I am satisfied that it is appropriate to ensure that she will follow through with appropriate counselling following her release.

114This should assist in her rehabilitation and protect society.

Restitution

115I am not satisfied that she will ever be in a position to pay restitution. Neither ODSP nor CPP provide more than enough for a subsistence living.

116I am prepared to make a stand-alone order for restitution in favour of the Estate of Teresa Koszler. It will then be able to attempt to collect the money should Ms. Banoub's financial situation improve.

Sentence

117For all of the above reasons, Ms. Banoub is sentenced to imprisonment for six months followed by probation for three years.

118The terms of the probation will require that Ms. Banoub:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of her release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in her supervision;

5. her reporting requirement ends when she has satisfied her probation officer that she has completed all of her counselling;

6. cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;

7. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer;

8. not act as Power of Attorney with respect to the Disposition of Personal Property of any person, or as Executrix of the Estate of any person, or as a Trustee with respect to the assets of any person;

9. not have any interest in or signing authority over any bank account in which money belonging to any other person has been deposited.

119I am also making a stand-alone order for restitution in the amount of $161,000 in favour of the Estate of Teresa Koszler.