ONTARIO COURT OF JUSTICE DATE: 2024·03·08

BETWEEN:

His Majesty the King

— and —

Deborah Omolade Oguntoyinbo

Sentencing Judgment

H. Song ................................................................................................... Counsel for the Crown G. Dorsz............................................................................................ Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Oguntoyinbo

I. Introduction 3 A. Introduction 3 II. Reasons for Sentence 5 A. Crown Position 5 B. Defence Position 6 C. Circumstances of the Offences 6

1. March 2019 – Frauds re Rental Apartments 6
2. June 19, 2019 Fraud et al 6
3. December 1, 2020 – Derma Bar 6
4. March 31, 2021 6
5. December 2021 -- Stephanie Power Corporation 7
6. November 23 rd , 2022 – Fail to Comply – Release Order 7
7. November 25 th , 2022 – Fraud et al 7
8. February 9 th , Fail to Comply 7 D. Animating Legal Principles 7 E. Aggravating Factors, Mitigating Factors, and Other Factors on Sentence 8
9. Mitigating Factors 8 a) Guilty Plea / Remorse 8 b) Background of the Defendant 9 c) Mental Health Issues 9
10. Aggravating Factors 10 a) Criminal Record 10 b) Impact on the Victim(s) 11 (1) Hachem Hassan 11 (2) Teresa Distasio 11 (3) Mohsin Malik 11 (4) Stephanie Power 11 c) Number of Offences 12 d) Planning and Deliberation 12 e) The Loss 12 f) Offences While on Judicial Interim Release 13
11. Factors – Neither Mitigating nor Aggravating 13 a) Disfigurement 13 b) Quantum of the Frauds 13 c) Restitution 13 d) Credit for Pre-sentence Custody 14 e) Credit for Harsh Custodial Conditions (“Duncan Credit”) 14 f) Morris Factors 15 g) Collateral Consequences 15 F. Purpose and Principles of Sentencing 15
12. Purpose of Sentencing 15
13. Proportionality 16
14. Parity 16
15. Restraint 16
16. Prior Record 16
17. Concurrent Sentences, Consecutive Sentences, and Totality 17 G. The Sentence 19
18. Primary Sentencing Aims 19
19. Conditional Sentence 19
20. The Approach to Sentence 20

I. Introduction

A. Introduction

1In early 2024 Debra Oguntoyinbo entered guilty pleas to the following criminal charges:

Information Number	Date	Offence	Section Number	Election
3636	4 March 2019	Possession of Identity Information	402.2(1)	Summary conviction
3636	4 March 2019	Fraud Under 5000	380(1)(b)	Summary conviction
3636	4 March 2019	Breach Probation	733.1	Summary conviction
3447	4 March 2019	Possession of Identity Information	402.2(1)	Summary conviction
3447	4 March 2019	Fraud Under 5000	380(1)(b)	Summary conviction
4925	1 June 2019	Personation	403(1)(b)	Indictment
4925	1 June 2019	Utter Forged Document	368(1)(a)	Indictment
4925	1 June 2019	Fraud over 5000	380(1)(a)	Indictment
4925	1 June 2019	Possess Property Obtained by Crime over 5000	354(1)	Indictment
4925	1 June 2019	Breach Probation	733.1	Indictment
1160	1 December 2020	Fraud Under 5000	380(1)(b)	Summary conviction
1160	1 December 2020	Personation	403(1)(a)	Summary conviction
1160	1 December 2020	Fail to Comply-Release Order	145(5)(a)	Summary conviction
5579	31 March 2021	Fail to Appear - Court	145(2)(b)	Summary conviction
7677	7 December 2021	Fraud Over 5000	380(1)(a)	Indictment
7677	7 December 2021	Utter Forged Document	368(1)(a)	Indictment
6362	23 November 2022	Fail to Comply – Release Order	145(5)(a)	Indictment
6362	25 November 2022	Fraud Over 5000	380(1)(a)	Indictment
6362	25 November 2022	Utter Forged Document	368(1)(a)	Indictment
6362	25 November 2022	Possession of Property Obtained by Crime	354(1)	Indictment
6362	25 November 2022	Traffic in Property Obtained by Crime	355.2	Indictment
1128	9 February 2023	Fail to Comply – Release Order	145(5)(a)	Summary conviction
1128	9 February 2023	Fail to Comply-Release Order	145(5)(a)	Summary conviction
1128	9 February 2023	Fail to Comply-Release Order	145(5)(a)	Summary conviction

2The guilty pleas and facts were addressed over two days in court. Other counts were withdrawn. As it concerns some of the counts, additional aggravating facts were adduced by the Crown. Those additional facts were accepted by the defendant.

3On February 16 th , sentencing submissions were received. I adjourned to March 8 th to consider the oral submissions, the written submissions, the caselaw, the PSR, and the defendant’s letter to the Court. On March 8 th , 2024 I simply imposed sentence with written reasons to follow. These written reasons were filed with the Information and distributed to the parties.

4The Crown seeks a global sentence of 10 years jail reduced to 6 years given the sentencing principles of proportionality and totality. The defendant seeks a conditional sentence of 18-24 months and a maximum length probation order.

5I concede that there is technically no legal bar to the imposition of a conditional sentence of jail. But, as I will explain in this written judgment, notwithstanding Defence counsel’s erudite and persuasive submissions, I reject a conditional sentence for three reasons: First, a fair and proportionate sentence in this case exceeds two years jail; Second, a conditional sentence would be manifestly inappropriate as it concerns the relevant sentencing principles; and Third, the defendant is not a suitable candidate.

6While a conditional sentence can be fashioned to achieve denunciation and deterrence, it is not appropriate for this offender and these offences. Given the convictions before the court, the defendant’s criminal history, and my experience, I find that there is virtually no possibility that the defendant will follow conditions set by this court. The defendant has engaged in flagrant breaches of her release orders. I have no confidence that she would follow conditions on a conditional sentence, a release order, or a probation order given her antecedents. Bluntly, it would be an unconscionable perversion of justice to impose a conditional sentence. It would most certainly be inconsistent with the fundamental purposes and principles of sentencing.

7The defendant deserves a sentence addressing her high criminal moral blameworthiness, and her persistent, and at times, defiant, criminal behaviour. A sentence of six years jail would be appropriate. However, after applying the sentencing principles – and in particular totality – I arrive at a fit and proportionate sentence of five years as outlined in a sentencing chart I have attached to the Information.

II. Reasons for Sentence

A. Crown Position

8The Crown seeks a sentence of 10 years jail, reduced to 6 years jail, given the sentencing principles of totality and proportionality. The Crown also seeks a DNA order, Restitution, and forfeiture of all property seized by the police. The defence does not contest the restitution orders or DNA orders. Those orders are granted.

B. Defence Position

9The Defence position is that a global sentence range of 18-24 months is appropriate. The Defence position is that a conditional sentence would achieve the aims of sentencing having regard to the defendant’s antecedents, the criminal record, and in particular, the sentencing principle of totality.

C. Circumstances of the Offences

10The factual underpinnings are extensive and detailed notwithstanding the relative simplicity of the offences. The volume of offences and the aggravating facts received on consent produced a significant record. The parties filed a detailed synopsis of the allegations. For the purposes of this judgment, I will not set out a detailed narrative of the facts. The synopsis read in by the Crown is an exhibit. I simply adopt that synopsis and will only briefly highlight the circumstances in this judgment.

11There are eight groupings of offences:

1. March 2019 – Frauds re Rental Apartments

12The defendant posted a Kijiji advertisement offering an apartment for rent. The victims responded to the ad. The defendant sent the victims a rental agreement and obtained first and last months rent while personating a third party. One of the victims was a recent refugee claimant in Canada. The other had a young family. The defendant was bound by release conditions at the time.

2. June 19, 2019 Fraud et al

13These facts involve the defendant contacting the victim who posted a vehicle for sale. The defendant personated a third party, provided false identification to the seller, paid by forged cheque, and left in possession of the vehicle. The defendant engaged in similar behaviour with a second victim in conveying the ill begotten vehicle to this second victim.

3. December 1, 2020 – Derma Bar

14The defendant personated a third party and solicited cosmetic procedures for herself and an associate. The defendant used false credit card data to pay for the procedures. She brought her children to the event. She was on a form of release at the time of these offences and not in the company of her surety as required.

4. March 31, 2021

15The defendant failed to appear in court.

5. December 2021 -- Stephanie Power Corporation

16The defendant personated a third party and obtained cosmetic breast augmentation surgery by uttering a forged bank draft.

6. November 23 rd , 2022 – Fail to Comply – Release Order

17The defendant breached her release conditions to commit an additional vehicle fraud.

7. November 25 th , 2022 – Fraud et al

18The defendant obtained a vehicle for sale using a fraudulent bank draft. She then personated a third party while selling the vehicle to a second victim. This vehicle was then sold to a third unsuspecting victim.

8. February 9 th , Fail to Comply

19The defendant breached her release orders by being outside of her residence without her surety, being in possession of a multitude of ID and SIN cards not in her name, and not living with her surety.

D. Animating Legal Principles

20I adopt the guidance provided by C. Hill J. in R v. Atwal, 2016 ONSC 3668:

42 There was little in the way of controversy between the parties as to the applicable legal principles. Having summarized many of these overarching considerations in R. v. Cunsolo, 2012 ONSC 114, (affd 2014 ONCA 364); and, in R. v. Williams, [2007] O.J. No. 1604 (S.C.J.), an overview will suffice here:

(1)"Fraud over $5,000 is a serious offence": R. v. Bogart (2002), 167 C.C.C. (3d) 390 (Ont. C.A.), at p. 396, leave to appeal refused [2002] S.C.C.A. No. 398.

(2)When sentencing for fraud involving substantial dishonesty, the principles of general deterrence and denunciation merit paramount consideration: R. v. Drabinsky and Gottlieb, 2011 ONCA 582, at paras. 160, 173, application for leave to appeal refused [2011] S.C.C.A. No. 491.

(3)General deterrence tends to have greater impact in the case of embezzlement-type crimes, whether fraud or theft -- criminal conduct where persons "usually plan and deliberate about it to some extent": R. v. Dobis (2002), 163 C.C.C. (3d) 259 (Ont. C.A.), at pp. 272-3; R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), at p. 38; R. v. Gray (1995), 76 O.A.C. 387 (C.A.), at pp. 398-9 (leave to appeal refused, [1995] S.C.C.A. No. 116); R. v. McKinnon, 2005 ABCA 8, [2005] A.J. No. 12 (C.A.), at para. 60; R. v. Hoy, [1998] B.C.J. No. 1649 (C.A.), at para. 6; R. v. Reid, 2004 YKCA 4, [2004] Y.J. No. 3 (C.A.), at para. 13. Put differently"law-abiding persons, with good employment records and families...are the ones most likely to be deterred by the threat of severe penalties": R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), at 503; see also Drabinsky, at para. 160.

(4)"[A] sentence of six years is within the correct range of sentences for major frauds" and sentences in the 3 to 5-year range are common: Dobis, at p. 271; R. v. McGill, 2016 ONCA 139, at paras. 13-17; R. v. Khatchatourov and Keznick, 2014 ONCA 464, at para. 39; R. v. Witen, 2014 ONCA 694, at paras. 1, 25 (leave to appeal refused [2015] S.C.C.A. No. 287); R. v. Maxwell, 2014 ONCA 316, at para. 5; R. v. Dwyer, 2013 ONCA 34, at para. 12; R. v. Drakes, 2009 ONCA 560, at paras. 24-6 (leave to appeal refused, [2009] S.C.C.A. No. 381); R. v. Bertram, [1990] O.J. No. 2013 (C.A.), at p. 3; R. v. Wilson, [2003] O.J. No. 1047 (C.A.), at para. 5. The Dobis decision, at p. 273, includes at the lower end of "large-scale frauds", the McEachern case ((1978)), 42 C.C.C. (2d) 189 (Ont. C.A.)) involving $87,000 and the fraud in Pierce ((1997)), 114 C.C.C. (3d) 23 (Ont. C.A.) (leave to appeal refused, [1997] S.C.C.A. No. 225)) in the amount of $270,000, while a $200,000 defalcation was described by Juriansz J. (as he then was) as a large-scale fraud in R. v. Robinson, [2003] O.J. No. 4722 (S.C.J.), at paras. 4, 11.

(5)The current s. 380(1.1) carries a mandatory minimum term of imprisonment of two years where the subject matter of the fraud exceeds $1,000,000. That provision is inapplicable here because the offender's crime preceded passage of this Code amendment. While recognizing that "custodial sentences are the norm in cases of large-scale fraud" (R. v. Gour, 2014 ONCA 51, at para. 11), even where the offender is a first-time offender (R. v. Fratia, 2015 ONCA 460, at para. 6), and that "the jurisprudence of [the Ontario Court of Appeal] indicates that conditional sentences are not appropriate in cases involving convictions for large-scale frauds" where "penitentiary sentences are typically imposed in such cases" (Cunsolo (OCA), at para. 53) and are "rarely imposed in cases involving a breach of trust" (R. v. Silva, 2015 ONCA 301, at para. 4), the sentencing option of a conditional sentence was available when this fraud was perpetrated. Such a disposition has not been excluded from consideration in the past in breach of trust fraud cases; Dobis, at p. 273 and as discussed in R. v. Bunn (2000), 2000 SCC 9, 140 C.C.C. (3d) 505 (S.C.C.); R. v. Fiorilli, 2015 ONCA 328, at para. 6 (leave to appeal refused [2015] S.C.C.A. No. 261); R. v. Montoya, 2015 ONCA 786, at paras. 1, 14; R. v. Stewart, 2014 ONCA 715; R. v. Burkart (2006), 2006 BCCA 446, 214 C.C.C. (3d) 226 (B.C.C.A.); R. v. Gauthier (1998), 131 C.C.C. (3d) 177 (P.E.I.C.A.); R. v. Steeves and Connors (2005), 2005 NBCA 85, 200 C.C.C. (3d) 282 (N.B.C.A.); R. v. Robinson, [2003] O.J. No. 4722 (S.C.J.); R. v. Tulloch, [2002] O.J. No. 5446 (S.C.J.). While a conditional sentence, with properly tailored punitive conditions, can effect a measure of general deterrence and denunciation, many of these cases where a conditional sentence was appropriate involved pleas of guilt and/or certain exceptional mitigating circumstances.

21Both counsel referenced this judgment during submissions.

E. Aggravating Factors, Mitigating Factors, and Other Factors on Sentence

1. Mitigating Factors

a) Guilty Plea / Remorse

22The defendant has entered a guilty plea to a multitude of matters. If she had instructed her counsel to run trials, I am satisfied that a significant amount of court time would have been occupied with litigation. Balancing this recognition of remorse, I am also aware that the defendant was in custody having breached her court-ordered release terms. I am reasonably confident that any judicial officer would have maintained her detention pending trial. Setting trial dates would have involved many multiple-day matters and further delay in custody.

23I have little doubt that the defendant has expressed remorse to other sentencing courts. Nevertheless, the content of the PSR, and the handwritten letter provided by the defendant, clearly indicate a recognition of remorse.

b) Background of the Defendant

24The defendant was the subject of a PSR in 2016 which has been updated to 2024. The PSR does an admirable job of setting out the background circumstances of the defendant in a comprehensive manner. I have considered the circumstances of the defendant’s childhood and the medical circumstances leading to her disfigurement. The materials ( and Defence counsel’s submissions) set out the magnitude of the impact of losing her mother. The defendant’s criminal offences started shortly after this loss. Finally, I have learned about the defendant’s time in custody, her family, her supports in the community, and the difficult circumstances around pregnancy while in custody.

25While the defendant certainly attracts some sympathy for childhood circumstances, it is also clear from the materials that her mother took great steps to provide a solid foundation for her success in life. For example, despite being a single mother, the defendant’s mother achieved great success and could afford to send the defendant to a private boarding school in grades 9 and 10. The defendant excelled academically but her post-secondary education has been interrupted by her criminality.

26The defendant reports that her criminality is inspired by low self-esteem, difficulties finding employment due to her criminal record, and a motivation to maintain a “glamorous” lifestyle. She also seeks to please others by buying them gifts.

27In the defendant’s letter to the court she cites many of her childhood difficulties, the traumatic loss of her mother, and the recognition that she needs to be a better role model for her children.

28The defendant now has several children in her family, and she is seeking opportunities to co-parent and support their upbringing . She also enjoys very strong support from her Aunt.

29I assign modest recognition to the defendant’s background in general mitigation of her criminal moral blameworthiness – in particular, the loss of her mother and the consequential impact.

c) Mental Health Issues

30The PSR and submissions on sentence detail possible mental health issues. I accept that record but assign it modest consideration as a mitigating factor for several reasons.

31There is no evidence of any mental health issues animating the criminal conduct in this case. Leaving aside the self-report of the defendant, a self-report that must be subject to scrutiny given her antecedents, it is notable that she has not engaged in any plan of counselling or treatment for mental health issues in the past. The defendant has been on probation countless times. There is no evidence of any efforts in this regard.

32As it concerns this sentencing there is no evidence of mental health issues or evidence as to how these issues might impact the defendant’s criminal behaviour. It is true that the defendant ascribes trauma, childhood experiences, and the loss of her mother as pivotal factors relevant to her criminality. But this self-report stands alone.

33Based on experience, I assign more credibility to those defendants who take concrete steps and actions promoting rehabilitation. There is no evidence of any counselling or treatment designed to address that which the defendant identities as the cause of her criminality. I am well aware, that even while in custody, preliminary steps may be explored by those who are incarcerated. As a trial judge in Toronto I hear submissions about such efforts frequently. For example, even a phone call setting up an appointment for counselling can be accomplished (even through instructing Defence counsel).

34While the defendant certainly spoke about her willingness to engage mental health services and job reintegration programs with the PSR author, the conspicuous absence of any counselling, treatment, or even initiating steps is telling.

35As a result, there is no plan of mental health counselling going forward as proposed by the defendant. Further, there is little foundational support for any significant recognition of mental health issues the mitigation of criminal moral blameworthiness for the purpose of sentencing: R. v. Ghadghoni, 2020 ONCA 24, at para. 45; R. v Manitowabi, 2014 ONCA 301 at paras. 55-57; R. v. Ellis, 2013 ONCA 739 at paras. 107-127.

2. Aggravating Factors

a) Criminal Record

36The defendant has a significant criminal record. There are over seventy prior criminal convictions. Approximately ninety-five percent of the prior convictions involve fraud-related or property-related crimes. Perhaps five percent pertain to the defendant’s failure to follow probation orders or release orders.

37It is astounding that the defendant has acquired this many convictions in less than ten years – 2014 to now. This is a significant aggravating factor that contributed to the sentencing consideration around conditional sentences.

38While the criminal record is staggering, it is tempered somewhat by a principle neither counsel addressed during submissions. This court must cautiously recognize that portions of the criminal record post-date the offence dates for the multitude of matters in this case. As such, the defendant had not yet received the ostensible deterrent impact of such sentences. I have considered this factor as tempering the criminal record to a degree.

b) Impact on the Victim(s)

39There is no basis to temper the impact of the defendant’s criminality as it concerns all of the victims in these cases.

40There are four victim impact statements filed as exhibits. Each VIS demonstrates the significant impact of the defendant’s criminal actions: 718.2(iii.1)

(1) Hachem Hassan

41As outlined in the facts the defendant perpetrated a significant fraud against this victim involving a motor vehicle. The defendant’s actions victimized the entire family as this vehicle was the culmination of hard earned money, research, and meticulous effort so as to support the family. This victim felt profound violation. In addition to the $14,000 investment he lost, he had to rent a car at his own expense. He had to source a replacement car without access to the funds he had worked so hard to accumulate.

(2) Teresa Distasio

42this victim suffered a loss of 2550 according to her victim impact statement. Given the defendant’s fraudulent actions, this victim was responsible for compensating the bank for the illegitimate withdrawal of money. This had a significant impact on our business particularly giving the ongoing challenges posed by the COVID-19 pandemic. This victim had to negotiate payment arrange arrangements with an associated professional and lost the ability to accept credit card deposits in her place of business.

(3) Mohsin Malik

43This victim’s impact statement, as a person seeking shelter for his family, is heartbreaking. As a recent arrival in Canada this victim trusted the defendant despite having a few doubts. He was re-assured by others that “this is Canada”. He lost more than $3000.00 that day.

(4) Stephanie Power

44This victim eloquently points out that the defendant’s fraud constituted two months salary for a hard-working assistant in a medical office. The obvious point being, the defendant’s criminality has an impact on those who are honestly employed and trying to make a living. This victim lost hours of productive work dealing with law enforcement and the bank. This victim is out of pocket for the medical supplies involved in the surgery. Finally, this victim cites the damage caused to her personal well-being, and her trust in her patients.

45It may be easy for Judges or persons who are not self-employed to dismiss the very real impact of crime on self-employed persons. Persons who are contributing to our society, our taxes, and our community without the shelter of a “government job”. This victim impact statement makes that impact very clear.

46The impact of the defendant’s crimes on multiple victims is a significant aggravating factor.

c) Number of Offences

47The sheer number of criminal offences is aggravating. The defendant appears to serially engage in criminal conduct – fraud. The defendant persisted in committing offences even while on release conditions. This was not a time-limited “spree” inspired by a weakness for drugs or alcohol. The defendant’s record makes it clear that this is a pattern.

d) Planning and Deliberation

48In the criminal justice system, it is sometimes the case that those who engage in theft, fraud, and property-related offences have impulsive personalities. Other offenders may be influenced by addiction. This defendant has no impairment of her thought and reasoning ability. Her grades in school suggest high intelligence. These offences were not impulsive “on-the-sudden” opportunity crimes. All of the defendant’s offences demonstrate thought, planning, and deliberation.

e) The Loss

49The defence position is that this case did not produce a large monetary loss. I agree with that characterization. But this is not a mitigating factor. It is the absence of a more aggravating factor. Were it the case that the defendant engaged in larger fraud amounts, this would be an aggravating factor. Overall, I find that the “loss” in these offences is aggravating. Part of the reason for this finding is explained by how I characterize the loss.

50The loss is not simply quantified by monetary considerations. I have considered the impact on new Canadians, seeking to establish a foothold in Canada for their families by obtaining shelter. I have considered the impact on the public market for car sales. I have considered the impact on small businesses. I have considered the identity-related fraud and the defendant’s possession of multiple pieces of identification that did not belong to her, the impact on those whose identities were compromised, and the consequential impact on their credit ratings and ability to conduct their lives. Finally, the defendant’s serial commission of personation offences only exacerbates the impact.

f) Offences While on Judicial Interim Release

51The defendant committed criminal offences while flagrantly violating the terms of her judicial interim release.

3. Factors – Neither Mitigating nor Aggravating

a) Disfigurement

52The defendant suffers from a disfigurement on her face that she has had since childhood. Her position is that this background factor, and the consequential contribution to mental health issues and other difficulties is mitigating. I do not see this as a purely mitigating factor.

53It is rather perverse to suggest that this is mitigating, when the defendant obtained cosmetic procedures by fraud – not to cure the disfigurement – but to attempt to enhance other aspects of her body.

b) Quantum of the Frauds

54As indicated above the losses caused by the defendant’s criminality are not simply monetary. But as it concerns quantum, the defendant does not receive credit for having committed multiple smaller frauds rather than a larger quantum fraud. The quantum of the fraud is simply one factor in the analysis.

c) Restitution

55The defendant has made no effort to pay restitution in this case. The defendant has presented no plan to pay restitution in this case. While relying on social assistance, the defendant claimed not to have any means for financial support. This is not an aggravating factor. It is the absence of a potentially mitigating factor.

56The defendant has a young family and has no ability to pay restitution.

57The Crown has not sought a fine in lieu.

58In such circumstances it is appropriate to grant the “stand-alone” restitution orders sought by the Crown. This will ease the burden on the victims seeking civil remedies. The Crown is to furnish the clerk of the court with the relevant information such as addresses needed to produce the restitution orders.

59I make the following restitution orders:

• Hachem HASSAN: $14,000.00
• Moshin MALIK $3,000.00
• Emiliano MARTINEZ CORONADO $400.00
• Teresa DISTASIO $2090.00
• Stephanie POWER $10,305.00
• Gary KALEAS $25,000.00
• Robert ORGOVAN $16,000.00
• Amer ALKHRISSAT $18,000.00

60The Crown will undertake to provide a copy of these restitution orders to the victims.

d) Credit for Pre-sentence Custody

61The parties jointly suggest that the defendant receive the maximum statutory enhanced credit for this pre-sentence custody. They jointly submit that from Dec 22, 2023 to the date of sentencing submissions the defendant served 57 real days of custody with 7 days of lockdown. They jointly submit that 60 days appropriately captures this pre-sentence custody. The sentencing was adjourned to March 8 th , 2024. I add twenty-one additional days as a result totalling 78 real days. I arrive at 117 days Summers credit: s. 719(3.1) of the Criminal Code; R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147.

e) Credit for Harsh Custodial Conditions (“Duncan Credit”)

62The parties jointly submit that there should be credit for harsh custodial conditions. Even in the absence of actual evidence, I accept defence counsel’s submissions as an officer of the court and his assessment of lock downs. I also easily infer that the conditions had an adverse impact on the defendant – particularly the notion of giving birth while in custody and having your child removed from your care: R. v. Rajmoolie, 2020 ONCA 791, at paras. 14-16; R. v. Omoragbon, 2020 ONCA 336, at para. 32; R. v. Henry, 2016 ONCA 873, at para. 9.

63There is no mathematical formula for arriving at the amount of credit. The appropriate credit is left to the discretion of the sentencing judge. The parties assessed three days of Duncan credit for seven days of lockdown. I have exercised my discretion to extrapolate this credit further seeking to adhere to the spirit of both counsel’s submissions. I arrive at a total of 12 days credit.

f) Morris Factors

64The defendant is of African decent and raised in Canada from a young age. The defendant has not emphasized Morris considerations as part of sentencing. Nevertheless, I have turned my mind to the issue. I do not see any connection between overt or institutional racism, and the defendant’s criminality. I do not find that anti-black racism impacted the defendant in a way that bears on her moral responsibility. Morris, at para. 93.

g) Collateral Consequences

65A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R v. Suter, 2018 SCC 34, at para. 47. A collateral consequence is not necessarily aggravating or mitigating per s. 718.2 (a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender: Suter, at para. 48.

66I have considered the impact on the defendant’s medical circumstances, custody of her children, and her wish to engage legitimate employment pursuits in arriving at the final sentence in this case.

F. Purpose and Principles of Sentencing

1. Purpose of Sentencing

67Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society, prevent crime, promote respect for the law, and maintain a just, peaceful and safe society.

68These aims are achieved by promoting sanctions that have certain objectives. In this case the following objectives are important:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

69All of these objectives are relevant to the defendant’s sentencing.

70In my view, on this record, the most significant factor is specific deterrence. The defendant’s persistent criminality and flagrant violation of court-ordered conditions of release are crucial considerations.

2. Proportionality

71Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is an important consideration given the companion issue of totality.

3. Parity

72Section 718.2 mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. But it is also the case that sentencing is highly individualized, and the Court must tailor sentences to the circumstances of the offence and the offender: R. v. Suter, 2018 SCC 34, at para. 46.

73Both the Crown and Defence acknowledge that none of the caselaw filed are completely on point with this sentencing exercise. Nor are the cases binding. During submissions counsel illustrated this with examples of ways to distinguish the cases. I have read and considered all of the cases filed by counsel in arriving at my assessment of the appropriate sentence in this case.

4. Restraint

74Section 718.2(d) and (e) address the criminal law principle of restraint. The defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable and available sanctions, other than imprisonment, should be considered: R. v. S.K., 2021 ONCA 619, at paras. 12-13; R. v. Desir, 2021 ONCA 486, at para. 41; R. v. Borde (2003), [2003] O.J. No. 354(Q.L.)(C.A.).

5. Prior Record

75As indicated earlier in this judgment, the defendant has a significant prior record for fraud. This prior record is highly aggravating. I will not address every single fraud-related conviction on the defendant’s record. On top of the number of convictions and the breadth of time associated with the defendant record, I emphasize several convictions as part of the supporting foundation for the starting points of sentences I have imposed.

76In November 2014 the defendant received a sentence composed of 89 days pre-sentence custody plus 101 additional days jail. Having regard to sentence credits, this was a sentence of approximately 235 days or approximately 8 months.

77In February of 2015 the defendant was sentenced to a 60 day conditional sentence.

78In January of 2017 the defendant received a suspended sentence and 36 months probation having regard to pre-sentence custody of 16 months plus 15 days. Given sentencing credits this was a sentence of approximately 743 days or approximately 25 months jail.

79In September of 2017 the defendant received a sentence of 44 days jail on top of 116 days pre-sentence custody. With sentencing credits this was a sentence of approximately 218 days or approximately 7 months.

80In 2018 the defendant was sentenced to intermittent sentences twice.

81Prior sentencing courts have tried a variety of approaches with the defendant. There is even one set of convictions with small fines – no doubt due to emphasis on mitigating circumstances.

6. Concurrent Sentences, Consecutive Sentences, and Totality

82Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2(c) of the Criminal Code requires a sentencing court to ensure that consecutive sentences are not unduly long or harsh.

83In R. v. Friesen, 2020 SCC 9, at paragraphs 155 and 157, the Supreme Court of Canada approved of two methods by which the totality principle may be addressed:

(a) Consecutive Sentences

155 The decision whether to impose a sentence concurrent with another sentence or consecutive to it is guided by principles. While the issue warrants further discussion in another case, the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences (see, e.g., R. v. Arbuthnot, 2009 MBCA 106, 245 Man.R. (2d) 244, at paras. 18-21; R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84; R. v. Desjardins, 2015 QCCA 1774, at para. 29).

(b) The Principle of Totality

157 The principle of totality requires any court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender's overall culpability (see Criminal Code, [page507] s. 718.2(c); M. (C.A.), at para. 42). While this principle is applied throughout Canada, there have been divergences in the methodology used by various appellate courts. Some jurisdictions require the sentencing judge to decide what would be a fit sentence for each offence before considering totality (see, e.g., Hutchings, at para. 84; R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; R. v. Punko, 2010 BCCA 365, 258 C.C.C. (3d) 144, at para. 93; R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, at paras. 29-30; R. v. J.V., 2014 QCCA 1828, at para. 28; R. v. Chicoine, 2019 SKCA 104, 381 C.C.C. (3d) 43, at paras. 66-68). In other jurisdictions, sentencing judges start by determining an overall fit sentence and then impose individual sentences adding up to the total (R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403).

84Recently, in R. v. Bertrand Marchard, 2023 SCC 26, at paragraphs 91-93 [Bertrand Marchard], the Supreme Court of Canada provided the following guidance:

91 The sentencing judge first determined the just and appropriate sentence for each offence individually. Next, she considered whether the sentences ought to be consecutive or concurrent. Only after doing this did she consider the principle of totality in s. 718.2(a), which ensures that "the cumulative sentence rendered does not exceed the overall culpability of the offender" (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42; see also R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84, and Desjardins v. R., 2015 QCCA 1774, at paras. 37-42, which have endorsed a similar approach).

92 I agree with the sentencing judge's approach in this case and believe it has benefits over the alternative manner of simply setting a global amount for multiple offences. This sequential approach ensures a separate consideration of the fit and appropriate punishment of each offence. Given the separate objectives and distinct criteria for the luring offence, it was appropriate to examine each offence individually [TRANSLATION] "in order to understand properly the weight this offence contributes to the offender's moral blameworthiness" (Rayo, at para. 55).

93 Articulating individual sentences for each offence provides needed clarity and is of great assistance when one of the challenged punishments are varied on appeal or declared to be unconstitutional. Setting an individual sentence for each offence provides transparency and allows a judge to weigh the seriousness of each offence. Clearly identifying individual sentences may also prove to be of great assistance in any subsequent sentencing proceedings should an offender re- offend -- for example, by providing sentencing judges with a starting point when applying the "jump principle" to repeat convictions for the same offences (R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 39).

85I am aware of the guidance from the Ontario Court of Appeal as it concerns totality: R. v. Owusu-Sarpong, 2023 ONCA 336, at para. 28; R. v. Milani, 2021 ONCA 567, at paras. 35-38; R. v. Stuckless, 2019 ONCA 504, at paras. 78-80; R. v. S.C., 2019 ONCA 199, at para. 20; R. v. Ahmed, 2017 ONCA 76, at para. 85; R. v. Jewell (1995), 100 C.C.C. (3d) 270, at p. 279 (Ont. C.A.).

86I will follow the approach suggested by the Supreme Court of Canada primarily for the reasons set out in paragraphs 92-93 of Bertrand Marchard. I will set out what I find is the appropriate sentence on each conviction. Then I will use the tools of concurrent and consecutive sentences to address totality.

87In arriving at a fit and proportionate sentence on each conviction I have assessed the defendants prior record, the current offences, the aggravating factors, the mitigating factors, the factors that do not neatly fit into either of the prior categories, the sentencing principles, and the sentencing objectives.

88I arrive at the following conclusion on the appropriate sentences:

• Concerning each of the March 2019, June 2019, December 2020, December 2021, and November 2022 groupings of fraud-related offences, I find that a sentence of twelve months jail on each count would be appropriate. The twelve months would be concurrent on other convictions imposed at the same time from the same offence date. The twelve months would be consecutive for each grouping of offences.
• As it concerns the fail to appear a sentence of 90 days is appropriate.
• As it concerns the fail to comply with release order from November 23, 2022 a sentence of 90 days jail is appropriate.
• As it concerns the fail to comply with release order offences from February 9, 2023 a sentence of 6 months is appropriate.

G. The Sentence

1. Primary Sentencing Aims

89Balancing all of the aims of sentence the primary sentencing principles in this case are specific deterrence and denunciation. Rehabilitation is not a lost cause for the defendant. But it is a lesser consideration. But the defendant has not even taken one step toward addressing rehabilitation – not during her many probation orders, and not while in custody. The defendant will have the opportunity to set the beginning groundwork during the remainder of her sentence.

2. Conditional Sentence

90I subscribe to an escalating “ladder” approach to sentencing commencing with consideration of the least intrusive approach. Given the defendant’s criminal record and consideration of all of the relevant factors set out above, a discharge, a fine, or a suspended sentence would not achieve the aims of sentence. A fit and proportionate sentence requires the imposition of a custodial sentence.

91A conditional sentence of jail is available for the offences before the court. But I have not imposed a conditional sentence for many reasons.

92First, there is virtually no possibility that the defendant will follow conditions set by this court. Having regard to her record and the facts on these proceedings, the defendant has engaged in persistent and flagrant breaches of her release orders. Put another way, I have no confidence that the defendant would follow any conditions on a release order, or a probation order given her antecedents. The same logic applies to a conditional sentence.

93Second, the defendant has approximately ten prior convictions for breaching release conditions. She has over twenty-five convictions for breaching her probation orders. She has a conviction for being unlawfully at large.

94Third, in one circumstance she cut off her GPS ankle monitor and committed additional criminal offences.

95It would be patently unconscionable and a perversion of justice to impose a conditional sentence. This defendant is a poor candidate for any supervised release regime. Imposing a conditional sentence would manifestly be inconsistent with the fundamental purposes and principles of sentencing.

3. The Approach to Sentence

96The sentencing approach is informed by the fact that significant jail sentences have not deterred the defendant. A conditional sentence has not deterred the defendant. Intermittent sentences have similarly failed. Probationary periods have not sufficiently promoted rehabilitation. The defendant’s antecedents, and the circumstances of these offences before the court demand an exemplary sentence.

97I have set out the defendant’s prior fraud offence sentences in the previous section. In my view, for this sentencing, twelve months jail properly balances all of the relevant factors on sentence. I have outlined this view because if there are further fraud-related convictions in the future, a sentencing court should escalate the sentence and be aware of the specific sentences contemplated by this sentencing court. In my view, a global sentence of five years is appropriate on the fraud-related matters.

98The fail to appear and fail to comply convictions would add another year to the defendant’s sentence. The fail to comply matters are particularly egregious having regard to three factors: (1) the defendant committed addition offences while breaching; (2) the defendant involved her children in the cosmetic surgery fraud in the sense that they were present while she committed the offence; (3) the notion that the defendant removed electronic monitoring for the purpose of facilitating an offence. Clearly, these features are very concerning.

99As a result, I find that a sentence of six years jail is the sentence that ought to be imposed prior to considering totality. Having now turned my mind to the cumulative impact of the sentence, totality considerations and the principle of restraint cause me to reduce the sentence to one of five years in jail. I will now fashion a sentence using the tools of concurrent and consecutive sentences to impose a fit and proportionate sentence. I have filed chart of my sentence with the digital Informations in court setting out how I have apportioned the sentence. This chart was read into the record on March 8 th , 2024.

100These are the written reasons for the sentence imposed March 8 th , 2024.

Released: March 8, 2024 Signed: “Justice M.S. Felix”