ONTARIO COURT OF JUSTICE
DATE: March 12, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
LOUISE REID & MELISSA STAMPER
Before: Justice B. Green
Reasons for Sentence
Counsel: Mr. N. Young, counsel for the Crown Mr. P. Affleck, for the defendant Ms. L. Reid Mr. B. Scott, for the defendant Ms. M. Stamper
Green J.:
A. Introduction
[1] Following a series of pretrial discussions, Ms. Reid and Ms. Stamper entered pleas of guilty to one joint count of perjury and Ms. Reid plead guilty to another count of fraud over as follows:
Fraud over: Louise Reid did, between the 9th day of February in the year 2005 and the 21st day of September in the year 2015 in the city of Oshawa in the Central East Region and elsewhere in the province of Ontario, by deceit, falsehood or other fraudulent means, defraud Pilot Insurance of a sum of money of a value exceeding five thousand dollars contrary to section 380(1)(a) of the Criminal Code of Canada; and
Perjury: Melissa Stamper and Louise Reid did, between the 9th day of February in the year 2005 and the 21st day of September in the year 2015 in the city of Oshawa in the Central East Region and elsewhere in the province of Ontario, with intent to mislead, make before a person authorized by law or to permit it to be made, a false statement under oath, namely that Louise Reid was the driver of a motor vehicle, knowing that Robert Reid was the true operator, knowing the statement to be false, contrary to section 131(1) of the Criminal Code of Canada.
[2] The crown elected to proceed by Indictment and both defendants elected to proceed before the Ontario Court of Justice.
[3] In summary, Ms. Reid is the mother of Robert Reid and Melissa Stamper. Robert Reid was driving a car in 2005 when he became involved in a collision. There is some evidence that Ms. Stamper was in the passenger seat. Before the police responded to the accident, Mr. Reid left the scene and Ms. Reid took his place. She lied to police and claimed that she was the driver. Afterwards, Ms. Reid successfully sued the insurance company for injuries that she could not have suffered since she was not involved in the collision. Ms. Stamper subsequently commenced a civil suit against the insurance company, her mom as “the driver” and the other driver. It was only when Ms. Reid was sued by her daughter that she finally told the truth.
[4] Ms. Reid successfully lied to police to protect her son from being held responsible for driving without a licence. Worse yet, motivated by personal gain, she embarked on lengthy fraudulent scheme to profit from her lies. Following in her mother’s footsteps, Ms. Stamper was also prepared to lie under oath/affirmation to secure financial benefits.
[5] Public confidence in the administration of justice is rooted in the fundamental concept that an oath or affirmation has meaning in the search for truth and justice. The crown emphasized that the offences committed by the accused strike at the very heart of the administration of justice. As a result, the crown is seeking custodial sentences for both accused to send an unequivocal message of denunciation and deterrence. He is seeking at least 12 months incarceration for Ms. Reid and a “real” jail sentence of 6 months incarceration for Ms. Stamper as opposed to a conditional sentence.
[6] In contrast, counsel for each of the accused emphasized the individual circumstances of the offenders, the passage of time since these offences, the fact that Ms. Reid has paid full restitution, the mitigation of early guilty pleas and neither one of the accused have criminal records either before or after these offences. Counsel urged me to consider conditional sentences for both Ms. Reid and Ms. Stamper.
[7] Ms. Reid and Ms. Stamper are in very different positions in terms of their moral and legal culpability. Ms. Reid’s crimes started at the roadside on the night of the accident and persisted for years to her benefit. In contrast, Ms. Stamper may have been in the car with her brother and she may have been injured in that accident. She was seeking damages for injuries that she claims to have really suffered unlike her mother’s fictious injuries but, Ms. Stamper didn’t tell the truth about who was driving the vehicle.
[8] It is challenging to arrive at just sanctions because of the diametrically opposing sentencing considerations. The offences are very serious, especially with respect to Ms. Reid, but there are uniquely mitigating factors with respect to each of the offenders.
[9] A fulsome review of the aggravating and mitigating facts, the various sentencing principles and comparable sentencing precedents is essential to explain the sentence for these offenders for these offences.
B. Circumstances of the offences
[10] Crown and counsel prepared an agreed statement of facts that was filed as an exhibit during the proceedings. Both defendants admitted the following facts:
On February 9th, 2005 a motor vehicle collision occurred at the intersection of Marland and Grenfell Ave in Oshawa. Robert Reid was the driver of one of the vehicles. The collision occurred very near Mr. Reid’s parents’ apartment.
Robert was seen by the driver of the other vehicle, Thomas Hudson, exiting the driver’s door and leaving the scene. Louise Reid, mother of Robert and Melissa Stamper attended the scene. Louise assumed the position as the driver. Mr. Hudson was asked not to call the police, however the police responded to the scene. P.C. Winn completed a motor vehicle accident report that named Louise as the driver. No criminal charges were laid by the police. Notably, Robert Reid did not have a valid license to drive at the time.
Louise Reid subsequently submitted a claim for medical and disability benefits to Pilot Insurance Canada as a result of the injuries she allegedly sustained in the collision. As part of the claim, Ms. Reid stated in a sworn examination for discovery that she was the driver of the motor vehicle that night.
Ms. Reid fraudulent claim was successful, and she received approximately $36,669.41 in medical and disability benefits.
In 2010, five years after the accident, Melissa Stamper initiated a separate civil action against Aviva insurance, Thomas Hudson (the other driver) and her mother, Louise Reid. Ms. Stamper provided evidence under oath that her mother was the driver of the motor vehicle on the night of the accident.
At a discovery hearing in 2014, Thomas Hudson provided a statement to Aviva, the insurance underwriter, that the driver of the motor vehicle was a male. He saw the male exit the driver’s door and leave the scene. He saw a female arrive on scene and take the driver’s seat. He said the woman who arrived on scene told the police she was the driver.
Beth Grela, a friend of Melissa’s in 2005, also provided a statement to Aviva that she had been told by Melissa Stamper that Robert was the one who was operating the motor vehicle. She was also told that Louise, Robert and Melissa had all agreed to tell the police that Louise was the person who had been driving. Beth believed that Robert wasn’t a licensed driver.
On September 21st, 2015, Louise Reid provided sworn testimony in relation to the civil action brought by Melissa. She admitted that she was not the driver of the motor vehicle and that her son Robert was the driver. She testified that she was informed of the accident by another resident who recognized her car. She came down to the accident scene and told her son to go upstairs. She passed her daughter, Melissa, on her way to the car. She stated that she was the one who told Melissa about the accident.
Melissa would later state in examination for discovery that her mother Louise was the driver of the mother vehicle and that she was a passenger.
The matter was brought to the attention of Durham Regional Police Services on October 27th, 2016 by Jessica Martin who was the Regional Investigator for Aviva Insurance. She filed a report with the police in March of 2017. Louise Reid and Melissa Stamper were not arrested until October of 2019.
[11] There was a lengthy unexplained period of pre-charge delay before the accused were finally arrested. This delay is troublesome. I have no idea why it took the police so long to act on the information that they received from the insurance company. In the meantime, I have no doubt that it was stressful for Ms. Reid and Ms. Stamper while they awaited finding out if they would face consequences for their misdeeds.
[12] Ms. Stamper admitted that she lied about her mother driving the motor vehicle. However, she is adamant that she was present in the car during the accident. Counsel produced medical records from the emergency department of a local hospital dated February 10th, 2005, the day after the car accident. The medical records noted “rt elbow pain swollen – pain to move” and “neck pain” but no “LOC” which I believe is an abbreviation for loss of consciousness. She was sent for tests because she was “unable to flex the arm to a true 90-degree lateral” but there were no abnormalities noted in the x-ray results.
[13] Considering the lies told by Ms. Reid and Ms. Stamper, the crown’s skepticism about Ms. Stamper’s involvement in the crash is warranted. However, the crown did not seek a hearing to dispute whether Ms. Stamper was in the car during the accident. This is an obviously relevant fact to the determination of Ms. Stamper’s sentence. Pursuant to section 724(3)(d) of the Criminal Code, “the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence”. In the absence of a hearing, based on the hospital report tendered by counsel, I will sentence Ms. Stamper as though she was involved in the initial crash. Regardless of whether she was injured, it does not justify or excuse committing perjury in the civil proceedings to secure a financial benefit.
C. Circumstances of the offenders
[14] Both accused retained counsel early in the proceedings and they plead guilty at the first available opportunity after the judicial pretrial which is substantially mitigating. So many people have already been inconvenienced by their conduct. A trial would have wasted even more valuable court time, inconvenienced more witnesses and resulted in more financial losses for the individuals required to attend court.
[15] Ms. Reid and Ms. Stamper do not have criminal records before or after these offences. These offences started 15 years ago and ended over 5 years ago. It is unlikely that either one of them will reoffend considering the repercussions of their offending conduct. While I accept counsel’s submission that they both have significant potential for rehabilitation, they are very differently situated in terms of the individual aggravating and mitigating facts.
i. Melissa Stamper
[16] Ms. Stamper was only a teenager, 18 years old, when the collision occurred. At that time in her life, her mother was the person who should have set an example. Instead, her mother assisted her older brother with escaping liability for driving without a licence. Even though Ms. Stamper went to the hospital the day after the accident for injuries that she sustained that night, it was her mother who benefited financially for injuries that she never suffered.
[17] Ms. Stamper wanted to be compensated for her injuries, so she perpetuated the lies told by her mother to make the claim. While this may have started when she was a teenager, by 2010, she was an adult and quite capable of making her own decisions. If she felt that she was entitled to be compensated, she should have told the truth. However, I suspect that, if she told the truth that her unlicensed brother was driving the car, it would have impacted the liability of the insurance companies. In addition, she must have been aware that disclosing the lies could get her mother and brother in trouble.
[18] Unlike her mother, Ms. Stamper never received any money because she eventually abandoned her claims. She acknowledges that she made a big error in judgement by supporting and repeating her mother’s lies and committing perjury.
[19] Ms. Stamper is 34 years old, married and she has a young child. She is expecting her second child and experiencing health complications from the pregnancy. These proceedings have been very difficult for her because of the stress and uncertainty. I will not incarcerate a pregnant woman in the middle of a pandemic even if a short sharp jail sentence would be appropriate. The potential consequences for her and her unborn child would be disproportionate and unduly punitive.
[20] These offences have caused considerable strain on her family. She rarely speaks with her brother, but she does keep in touch with her parents. Ironically, despite everything that has happened, her mother provides daycare for her son.
[21] Ms. Stamper is educated. She obtained a high school diploma and attended Durham College. She took courses in office administration. She has a good job as a clerical worker in the nephrology department at Lakeridge Health and contributes to the household income.
[22] She is very remorseful and ashamed. She related that both she and her mother struggle with anxiety and depression. She felt that that they were not in their right minds when they started down this path of deception.
ii. Louise Reid
[23] Ms. Reid was supposed to set an example for her children. She should have made sure that her son took responsibility for his misdeeds. Instead, she lied to the police to protect him and her own self interests. Although she did not plead guilty to obstructing justice, I am entitled to consider all the admitted aggravating facts.
[24] Ms. Reid got away with obstructing justice even though witnesses at the scene knew that the driver was male. She made an informed choice to compound the seriousness of her initial crime by seeking to profit from it. She launched a fraudulent claim based on entirely false pretences and pursued the matter in court.
[25] Ms. Reid’s lies persisted for years. She wasted court time. She wasted the time of all the professionals and witnesses involved in the civil proceedings. While she may have paid restitution for the money that she was fraudulently awarded, the amount of money that was invested in addressing this fictious civil claim and the damages caused by her lies are unquantifiable. Ms. Reid lied to police. She lied to any medical professional who supported her claim. She lied during her discovery/testimony. She kept on lying until there was a risk that she would be held liable for her daughter’s injuries. It was only when she was being sued and Mr. Hudson, the other driver, related that the actual driver was male that Ms. Reid finally told the truth. She spun a web of deceit for years until she was finally ensnared in her own lies. Ms. Reid’s conduct was utterly shameful.
[26] Ms. Reid is now 67 years old. She has some health issues. Because of the pandemic, she is fearful for her safety if she is sent to jail. The crown provided me with important information about the protective policies and practices that have been adopted in response to COVID-19 in correctional facilities across the province in a document entitled “Response to COVID-19 Information Note” authored by the “Strategic Advisor Institutional Division” within the Ministry of the Solicitor General. This note summarizes all current and resolved cases of COVID-19 in institutions across the province and all measures that are being taken by these facilities, including C.E.C.C., to protect the health and safety of the staff and prisoners. The Central East Correctional Center and other institutions are taking proactive steps to protect inmates from infection despite the forced congregate setting in a jail. Hopefully, the contents of this document will alleviate some of Ms. Reid’s health concerns.
[27] Ms. Reid is also fearful about the impact on her family if she is sentenced to a period of incarceration. She is the caregiver for her ailing husband of 48 years, and she babysits her grandson.
[28] Although the crown referred to the motivation for these offences as greed, Ms. Reid’s counsel related that it was financial desperation. At the time of these offences, she was struggling financially and suffering from anxiety and depression. Ms. Reid recognizes that what she did was wrong. She is not trying to excuse her conduct rather; she offers some explanations other than avarice.
[29] She has paid full restitution for the money that she was awarded so she has not profited from the offences. However, the restitution does not address the wasted court resources, the wasted costs of any medical examinations to support her fictious claims, the court costs or the costs incurred by anyone who was involved in the litigation.
[30] While these are Ms. Reid’s first offences, counsel cannot suggest that these were isolated incidents. These two convictions are a culmination of years of offending conduct which adversely impacted the administration of justice. It is difficult to reconcile the mitigating circumstances of Ms. Reid with the overwhelmingly aggravating facts of these offences.
D. Legal Analysis
i. Guiding sentencing principles
[31] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[32] Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.
[33] Every single decision that I reviewed with respect to sentences for perjury emphasized that it is a very serious crime that strikes at the heart of the administration of justice and undermines public confidence in our system of justice. Unquestionably, the primary principles of sentencing that will guide my judgement are denunciation and deterrence. In R. v. Schertzer, 2015 ONCA 259, [2015] O.J. No. 2014 at paras. 134 and 135, the Ontario Court of Appeal stressed that:
Civilian offenders who interfere with the proper investigation and prosecution of criminal offences have received significant sentences. As the British Columbia Court of Appeal noted in R. v. Hall, 2001 BCCA 74, [2001] B.C.J. No. 560, at para. 12: Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation of such conduct.
Perjury convictions must attract similar deterrent sentences. Perjury strikes "at the very root of our system of justice." Time and time again courts have referred to the fact that perjury undermines the very heart of the administration of justice.
[34] In addition to the perjury, the circumstances of the fraud committed by Ms. Reid are statutorily aggravating. Section 380.1(1) of the Criminal Code states that:
Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:
(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant.
[35] Ms. Reid’s initial lie to police may have been a spontaneous reaction to her son’s predicament however, thereafter she embarked on a premeditated, elaborate and deliberate scheme for profit that persisted for years and she was rewarded with financial benefits for her crimes. Ms. Stamper also committed perjury, but her conduct is somewhat attenuated by the facts supported by the medical records that she was involved in the accident and she was injured. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of each individual offender.
[36] While the predominant principles in this sentencing are deterrence and denunciation, rehabilitation remains an important goal with any sentencing for both offenders especially for Ms. Stamper who was a youthful first-time offender when she committed the perjury.
ii. The principle of restraint
[37] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para. 12 (S.C.C.) explained:
The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
[38] An important sentencing consideration is the principle of restraint which has been codified in the section 718.2 of the Criminal Code and states that:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[39] Courts in Ontario have been unequivocally clear that youth and the lack of criminal antecedents should weigh very heavily in terms of tipping the scales towards a more lenient sentence. Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. The crown emphasized however, that these offences are so serious that a custodial sentence is required even though they are both first offenders.
[40] While I agree with the crown that these offences are serious and merit a denunciatory and deterrent sentence, incarceration is not the only means to achieve these sentencing goals. In the recent decision of R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 at para. 110, the Ontario Court of Appeal emphasized that a conditional sentence:
…serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.
[41] All available sanctions must be considered when determining what is reasonable in the unique circumstances of these offences and these offenders. Counsel submitted that there is an effective, alternative sanction of serving a jail sentence in the community that may achieve the sentencing goals of denunciation and deterrence while reinforcing that there is substantial hope for rehabilitation for both offenders.
[42] While I am sentencing both offenders at the same time, Ms. Stamper must be treated differently than her mother for several reasons. She is morally and legally less culpable than her mother. She did not lie to the police about who was driving the vehicle that was her mother’s choice. The medical records disclosed by counsel are compelling evidence that she went to the hospital the day after the accident before any civil proceedings were commenced. Furthermore, she was only 18 when her mother started all of this and she was in her early twenties when she initiated her own civil suit. She might have had a legitimate claim but/for the lies about who was driving the vehicle. At the time of her offences, she was a youthful first-time offender.
[43] In contrast, Ms. Reid’s conduct was reprehensible. She is solely responsible for the choices she made as a parent and as an adult in her late forties at that time. She is not a youthful first offender, and this was not an isolated occurrence despite the lack of any criminal record. Nevertheless, considering her lack of any other involvement in the criminal justice system before, during and after these offences, rehabilitation is still an important sentencing principle.
[44] Even if a conditional sentence is the least restrictive penalty in these circumstances, I must consider whether it is statutorily available and whether it appropriately balances the competing sentencing considerations by reviewing any similar cases.
iii. The principle of parity
[45] Subsection 718.2(a) of the Criminal Code codified the long-standing principle of parity that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[46] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find similar facts. Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality of each offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para 92 (S.C.C.):
...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
[47] Even when there are comparable cases, I acknowledge that precedents are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 at paras. 29 and 30 (Ont.C.A.), the Ontario Court of Appeal cautioned that:
It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.
[48] In addition to reviewing any comparable cases, I must consider whether a conditional sentence is statutorily available. Section 742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence:
- The offender must not be convicted of an offence that is specifically excluded;
- The offence must not be punishable by a minimum term of imprisonment;
- The court must impose a sentence of imprisonment of less than two years;
- The safety of the community must not be endangered by the offender serving his or her sentence in the community; and
- A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[49] The crown elected to proceed by indictment for both the perjury and fraud charges. Both offences have maximum penalties of 14 years imprisonment. As a result, these offences are statutorily precluded from conditional sentences. Section 742.1(c) specifically states that, in order to receive a conditional sentence, the offence cannot be an offence that is “prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life”.
[50] Fortunately for both Ms. Stamper and Ms. Reid, the Ontario Court of Appeal recently declared section 742.1(c) to be unconstitutional in R. v. Sharma, supra. Although the facts in Sharma were specific to the disproportionate impact of this provision on Indigenous offenders, Justice Feldman concluded at paragraph 180 and 181 that:
I would strike down ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. The Crown did not ask the court to declare the provisions inapplicable only to Aboriginal offenders if it found a breach. In my view, it is for Parliament to determine to what extent, if any, it may re-enact these provisions, bearing in mind the position of other offender groups potentially affected.
In oral argument, the Crown requested a suspended declaration of invalidity. The Crown has not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law: R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 98. Accordingly, I would apply the declaration of invalidity with immediate effect.
[51] As a result of the Court of Appeal’s decision, these offences are no longer statutorily precluded from being eligible for conditional sentences. Secondly, there are no minimum terms of imprisonment for the offences. Thirdly, the crown and counsel have agreed that the appropriate sentence is less than two years. Fourthly, in the unique circumstances of this case, I am confident that neither of these women present any risk to reoffend so a conditional sentence would not endanger the safety of the community.
[52] Since the first four prerequisites have been met, the only remaining question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. Undoubtedly, a strong message must be sent to the general public and like-minded offenders that a heavy price will be paid for fraudulent schemes that include committing perjury.
[53] A review of sentencing precedents involving perjury convictions demonstrates that the sanctions vary significantly depending on the distinctive nature of the offence and the offender. In R. v. White, [2010] O.J. No. 5185 at para. 15 (Ont.S.C.J.), Justice Baltman reviewed several sentencing precedents for perjury offences and concluded that:
As for the length of sentence, the cases produced by counsel ranged from 6 months to 6 years, depending on several factors. They include:
- The gravity of the offence in which the perjury took place;
- Whether the perjury related to a collateral issue or one vital to the trial;
- The consequence of the perjury, with the most serious category being where perjured evidence leads to the conviction of an innocent person; less serious but still significant is where, as here, the perjured evidence is intended to secure the acquittal of a guilty person; the third and least serious category, is where a person gives perjured evidence to protect themselves or to gain some advantage, for example release on bail; and
- The offender's personal circumstances, including any criminal record.
[54] Both counsel and the crown provided me with a plethora of cases that address the applicable sentencing principles and whether a conditional sentence for either offender would be consistent with the fundamental purposes and principles of sentencing. I do not intend to review all the cases especially any sentences that were imposed as a result of a joint submission. Furthermore, many of the cases were factually distinguishable because of the varying degrees of seriousness of perjury and whether it was an isolated incident or part of a greater scheme. However, I will highlight a few cases that provided me with some guidance with respect to the predominate sentencing principles and sentence ranges:
R. v. C.D., [2000] O.J. No. 1668 (Ont.C.A.):
Facts: C.D. applied for release pending appeal of sexual assault convictions. He swore an affidavit indicating that two employers were aware of the charges against him and were willing to hire him if he were released. The employers clearly stated that it would have been unacceptable for either of them to hire someone facing a sexual assault charge. He was convicted of perjury after a trial.
Principles at paragraph 7: Perjury is a serious offence. As has been said in many cases, it strikes at the heart of the administration of justice. In the present case, it was committed for the intended personal benefit of the appellant: his release from custody pending his appeal to this court. We recognize that the offence can be committed in a graver setting, for example, in giving evidence in a trial of a serious offence, in which case the sentence would, generally, be heavier.
Sentence: The accused received 1-year imprisonment consecutive to 4 years and 8 months for his other convictions. The Court of Appeal observed that “the sentence might well have been for a shorter term and still be within the acceptable range”.
R. v. Zeek, 2004 BCCA 42, [2004] B.C.J. No. 112 (B.C.C.A.):
Facts: the appellant falsely reported to the R.C.M.P. and his insurer that his trailer worth $45,000 had been stolen. The appellant did not own such a trailer at the time.
The R.C.M.P. began an investigation as a result of the appellant's report. Three months later, after an insurance adjuster had pressed for further information to substantiate the theft, the appellant, through his wife, claimed a friend had taken the trailer and the appellant abandoned the claim.
Two years later, the appellant and his wife persuaded the secretary of a company from which he had earlier purchased a different trailer to write a misleading letter for the purpose of perpetrating what the trial judge described as "a further clumsy fraud upon a fraud attempting to create a defence for presentation at this trial." False evidence was presented by the appellant at trial which was supported by the appellant's wife and a friend.
Principles at paragraphs 35 and 36: In this case, I am of the view that the principles of denunciation, general deterrence and specific deterrence could not be met by a conditional sentence order and therefore I do not regard the sentence of 12 months incarceration as unfit. As the trial judge found, this was a fraud of a deliberate and determined nature. The appellant embarked on the scheme by placing insurance on a vehicle which was no longer in his possession, and he manipulated insurance documents to create the impression the vehicle remained both his property and in his possession. He filed theft reports with both the police and the insurer and had a poster prepared to give the impression the vehicle had been stolen.
The fraudulent scheme may not have been a sophisticated one, but the appellant persisted in it until he was pressed by the insurance adjuster some three months after the initial false report.
Sentence: Despite various errors in the trial judge’s ruling, the Court of Appeal upheld the 1-year sentence. Notably, the defendant had a record and lacked some of the mitigating factors present in this case.
R. v. Akinyemi, [2014] O.J. No. 2791 (Ont.C.J.)
Facts: the defendant was found guilty after trial of public mischief, attempted fraud over $5,000.00, and perjury. He falsely reported the theft of his motor vehicle for the purpose of defrauding an insurance company and obtained a proof of loss statement by false pretenses and lied under oath.
Principles at paragraph 10: the court found that a conditional sentence was not appropriate for perjury because “by providing a maximum penalty of 14 years for perjury, Parliament expressed its view of the gravity of the offence. The courts have treated the matter seriously because it strikes at the heart of the judicial system. It has been said that perjury is an offence that is easy to commit, yet difficult to prove and that once proven, the offender must expect severe punishment.”
Sentence: The Court found that the principles of denunciation and deterrence required a jail sentence. The offender received 90 days for the perjury and 1 year of probation.
[55] While counsel for Ms. Reid provided me with some cases wherein conditional sentences were ordered for perjury offences, none of the facts came close to the magnitude or the persistence of the lies perpetuated by Ms. Reid.
iv. Sentence for Ms. Stamper
[56] I am satisfied that the least restrictive sentence for Ms. Stamper that balances the aggravating and mitigating facts, acknowledges her potential for rehabilitation and is consistent with the fundamental purposes and principles of sentencing is a conditional sentence of 6 months to be followed by two years of probation. This is a punitive sanction that reflects the seriousness of committing perjury but is proportionate to her culpability.
[57] One of the terms of the conditional sentence and the probation order will specifically prohibit her from pursuing any civil claims against any individual for any injuries or damages allegedly suffered by her in the initial crash. This is an important part of the consequences that sends a specifically deterrent message that she cannot profit from claims that were initially based on lies.
[58] The terms and conditions of her conditional sentence and the period of probation will be outlined in schedules I and II attached to these reasons. She will be subject to house arrest while serving her conditional sentence since it is intended to be a period of incarceration in an offender’s home as opposed to actual custody. Without terms that restrict her liberty, a conditional sentence would be virtually indistinguishable from a suspended sentence. In the seminal decision of R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 at para 117, the Supreme Court of Canada unequivocally stated that: “punitive conditions such as house arrest should be the norm, not the exception”. Similarly, in R. v. Wu, 2003 SCC 73, [2003] S.C.J. No. 78 at para. 25 (S.C.C.), the Supreme Court explained that:
In Proulx, supra, it was held that the requirement that the court impose "a sentence of imprisonment of less than two years" was intended to identify the type of offenders who could be entitled to a conditional sentence (para. 55). Specifically, Parliament did not intend conditional sentences to be "probation under a different name" (para. 28). A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration. Only when the sentencing judge has rejected other sentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term of imprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does a conditional sentence arise for consideration. At that point, the question is where the term of imprisonment is to be served, in a penal institution or, under punitive conditions, in the community. "It is this punitive aspect that distinguishes the conditional sentence from probation" (Proulx, supra, at para. 22).
v. Sentence for Ms. Reid
[59] I acknowledge that the guilty plea, expressed remorse, payment of restitution and lack of any criminal antecedents are all substantially mitigating facts. I have carefully considered Ms. Reid’s age, her personal circumstances and her potential for rehabilitation. Nevertheless, the offences are so serious, and she is both morally and legally culpable for crimes that persisted over an extended period of time that the least restrictive sentence is a custodial term.
[60] I have considered the possibility of a combined disposition of an intermittent sentence on one count and a conditional sentence on the other count. Counsel properly directed my attention to my own judgement of R. v. Nickerson, [2019] O.J. No. 5428 at para. 50 (Ont.C.J.) in which I found that:
A conditional sentence would not adequately address the principles of general deterrence and denunciation on the impaired driving count considering that there was a car accident and some injuries and psychological harm to the victims. Nevertheless, if an intermittent sentence of incarceration is coupled with a conditional sentence, the combined sentence will balance the competing considerations of the circumstances of the offences and the circumstances of the offender. This type of blended sentence achieves the objectives of deterring this offender, general deterrence and denounces this type of conduct while still encouraging and acknowledging the demonstrated remorse and ongoing rehabilitation of this offender.
[61] There were some uniquely mitigating factors in the Nickerson case that justified the creative sanction. In addition, based on the overall circumstances, the conditional sentence on one count combined with the intermittent sentence were consistent with the fundamental purposes and principles of sentencing. In contrast, a conditional sentence would not be appropriate on either count in this case. Moreover, considering the distinct delicts of each offence, the custodial sentences should be consecutive. The sentences on each count will be consecutive but will be lower for each individual offence than I would have otherwise ordered to reflect the overall totality of the appropriate sentence.
[62] It is very easy to lie and often hard to get caught but our system of justice relies on the persuasive influence of the solemnity of an oath or affirmation. While swearing or affirming to tell the truth should bind a person’s conscience, unfortunately as demonstrated by Ms. Reid’s conduct, sometimes that is not enough. Perjury is an offence that negatively impacts the integrity of the administration of justice and the accuracy of any decisions made during proceedings. As a result, sentences for perjury must be sufficiently denunciatory and deterrent to ensure that, even if some people are not bound by their morals, then they will be dissuaded from lying out of fear of the consequences they will suffer if they commit these offences.
[63] Ms. Reid’s lies are compounded by the facts that her son escaped liability for his misconduct, and she was motivated by personal benefit to embark on an involved and lengthy insurance fraud. The public is significantly affected by these fraudulent insurance schemes because insurance companies raise premiums to compensate for losses. Big businesses are not the only ones losing money, so are all the drivers in our communities whose premiums are responsive to these crimes. So many people were adversely impacted by these false claims. The professionals who wasted their time diagnosing and treating fake or unrelated injuries, the court staff and insurance representatives are all impacted. Finally, this was not a “victimless” crime. Mr. Hudson, the other driver involved in the collision, was dragged through civil proceedings. It is unfortunate that I do not have a victim impact statement from him about the toll this whole process has taken on him emotionally and financially.
[64] I accept that Ms. Reid has significant potential for rehabilitation, and she is truly remorseful. She exhibited her remorse through the payment of restitution. She should not be deprived of her liberty, if less restrictive sanctions may be appropriate in the circumstances. However, there are no other sanctions, other than imprisonment, that are reasonable or commensurate with the harm done to the victims, to the community and to the administration of justice. A conditional sentence would be contrary to the fundamental purposes and principles of sentencing.
[65] While I accept that the crown’s position of 12 months incarceration is reasonable and within the range of appropriate sentences, I must also consider the current situation at the Central East Correctional Centre (C.E.C.C.) as a result of the pandemic and ongoing labour disruptions. There are a multitude of decisions about the abysmal conditions at C.E.C.C. and how prisoners are being used as vulnerable pawns in a seemingly endless labour dispute. Every week in Durham Region, jurists are receiving reports that demonstrate how prisoners are being routinely locked down in their cells for full days and consecutive days with the primary reason being “staff shortages”. Despite the judicial outcry, nothing is being done to address this situation. Moreover, I am sentencing Ms. Reid to serve time in forced congregate setting without the ability to safely socially distance which understandably is causing her added stress and anxiety. While the jails are doing the best that they can to combat the spread of this virus, they have not been successful in some institutions. The document tendered by the crown demonstrated that mass outbreaks have occurred in some institutions including recently at Maplehurst in Toronto.
[66] It is appropriate to reduce the overall sentence to reflect the collateral consequences of a serving a jail sentence in the C.E.C.C. When assessing the appropriate sentence, I will reduce the appropriate period of incarceration to reflect some prospective credit for the harshness of the conditions in which a 67-year-old woman with no record will serve her sentence.
E. Conclusion
[67] These offences were an affront to the administration of justice. Absent the substantially mitigating facts in this case, especially the early pleas, the restitution and the absence of any criminal record, Ms. Reid would be facing a sentence in the range of upper reformatory to 2 years incarceration. Hopefully, the sentences in this case will send a strong message to other like-minded offenders that the risks of a severe penalty are not worth any potential benefits gained from lying under oath or affirmation for personal gain.
[68] The sentences will be as follows:
Ms. Stamper for perjury: 6 months conditional sentence + 2 years of probation with the terms and conditions as outlined in Schedules I and II;
Ms. Reid for fraud over: 4 months incarceration + 2 years of probation with terms and conditions outlined in Schedule III; and
Ms. Reid for perjury: 5 months incarceration consecutive + 2 years of probation with the terms and condition as outlined in Schedule III.
Schedule I
Terms of the 6 months Conditional Sentence Order Melissa Stamper
- Keep the peace and be of good behavior;
- Appear before the court when required to do so;
- Notify the Court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation
Reporting:
- Report in person or by telephone to a conditional sentence supervisor:
- within 2 working days;
- and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision.
- you must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request.
Residence:
- you must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor.
Travel restrictions:
- Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor.
Curfew:
- You will remain in your residence or on the property of your residence at all times except:
- on Sundays between the hours of 1 p.m. to 4 p.m. in order to acquire the necessities of life;
- for any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours;
- while in hospital for the birth of your child;
- while travelling directly to, directly from and while attending at your pre-scheduled legal, medical or dental appointments for yourself or one of your children;
- while travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs;
- while travelling directly to, directly from and during the course of your employment;
- with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours; and
- for carrying out any legal obligations regarding compliance with this conditional sentence order.
- You must confirm the schedule for any of these exceptions to your period of home confinement by telephone or in person in advance with the conditional sentence supervisor setting out the times for these activities except for medical emergencies if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours;
- You must present yourself at your doorway of your residence upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement and curfew conditions.
General no contact:
- Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Beth Grela or Thomas Hudson
Counselling and Treatment:
- Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to psychological or psychiatric issues;
- You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed
Additional terms – Prohibition on civil claims:
- You must not commence or continue any civil suits against anyone or insurance claims of any kind in relation to injuries or damages sustained as a result of the collision on February 9th, 2005.
Schedule II
Melissa Stamper Terms of the two-year Probation Order
Statutory conditions:
- Keep the peace and be of good behaviour;
- Appear before the court when required to do so;
- Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
Reporting:
- Report in person or by telephone to a probation officer:
- within 5 working days of the completion of your conditional sentence;
- and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
- Your reporting requirements will end when you have satisfied your probation officer that you have completed all of your counselling.
- You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.
General no contact:
- Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Beth Grela or Thomas Hudson
Counselling and Treatment:
- Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to psychological or psychiatric issues;
- You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Additional terms:
- You must not commence or continue any civil suits against anyone or insurance claims of any kind in relation to injuries or damages sustained as a result of the collision on February 9th, 2005.
Schedule III
Louise Reid Terms of the two-year Probation Order
Statutory conditions:
- Keep the peace and be of good behaviour;
- Appear before the court when required to do so;
- Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
Reporting:
- Report in person or by telephone to a probation officer:
- within 5 working days of the completion of your release from custody;
- and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
- Your reporting requirements will end when you have satisfied your probation officer that you have completed all of your counselling.
- You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.
General no contact:
- Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Beth Grela or Thomas Hudson except:
- For a letter of apology to Thomas Hudson that has been approved of by your probation officer and delivered by your probation officer;
Counselling and Treatment:
- Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to psychological or psychiatric issues;
- You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Additional terms:
- You must not commence any civil suits against anyone or make insurance claims of any kind in relation to the collision involving your son Robert Reid on February 9th, 2005.