DATE: 20060103
DOCKET: C41519
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – KAREN MacRAE (Appellant)
BEFORE: CRONK, JURIANSZ and LaFORME JJ.A.
COUNSEL: Vincenzo Rondinelli for the appellant
Shawn Porter for the respondent
HEARD & RELEASED ORALLY: December 23, 2005
On appeal from the conviction entered by Justice Bruce A. Glass of the Superior Court of Justice dated January 30, 2004 and the sentence imposed by Justice Glass dated March 3, 2004.
E N D O R S E M E N T
[1] We conclude that the appellant’s conviction appeal must be dismissed.
[2] Although it is true that the Crown’s case was circumstantial and, further, that the appellant admittedly did not have exclusive opportunity to commit the theft in question, there was evidence that supported the trial judge’s finding of her culpability.
[3] In particular, the evidence established that the appellant herself had received client funds in at least seven instances where the funds later could not be accounted for; the appellant was responsible for more than 40 of the affected client accounts; the appellant was obliged by her employment duties to report any missing funds and she did not do so at any time; the appellant was responsible for the banking of cash receipts on behalf of her employer; the theft occurred over a two-year period during the appellant’s employment with the victim trustee-in-bankruptcy and ended when she ceased working for the trustee; and, finally, the appellant had a motive to commit the theft in question. In these circumstances, it cannot be said that the verdict was unreasonable or not supported by the evidence.
[4] Nor do we accept that the trial judge erred in his application of R. v. W. (D.) (1991), 63 C.C.C. (3d) 1 (S.C.C.). The trial judge correctly identified the three-stage process required by W. (D.), directed himself to the principles applicable at each stage of that process and, in our view, properly applied those principles in this case.
[5] Accordingly, the conviction appeal is dismissed.
[6] As to the sentence appeal, the trial judge imposed a sentence of six months incar-ceration and a compensation order in the amount of $6,227. His reasons for excluding a conditional sentence included that the nature of the offence constituted a breach of trust that attracted a “double multiplier effect”. Moreover, the trial judge held that the appellant’s breach of trust “affected 45 people going through bankruptcy”.
[7] We find it unnecessary to determine whether the trial judge’s apparent application of a multiplier effect to the appellant’s breach of trust was proper. In this case, although 45 people may have been exposed to risk as a result of the appellant’s criminal conduct, that risk ultimately never materialized. Each of the 45 persons had their accounts reconciled by the appellant’s employer. Thus, the employer actually suffered the loss of funds. Given this error, appellate intervention is warranted.
[8] We conclude that this is a proper case for a conditional sentence. We note, in particular, that the appellant is a first offender; that her pre-sentence report was positive and included a recommendation for a community sentencing disposition; the clients affected by the theft of funds have been made whole by the appellant’s employer; the appellant has served 16 days in custody, five days of which were in lock-down conditions and another four or five days of which were in overcrowded conditions in the facility; the appellant is the primary caregiver for two disabled children, one of whom is facing imminent surgery. In all these circumstances, we conclude that a conditional sentence is appropriate.
[9] Accordingly, leave to appeal sentence is granted and the appeal against sentence is allowed. The custodial sentence imposed by the trial judge is set aside and a six month conditional sentence is substituted in its stead. The appellant is to be credited with 16 days time served. The compensation order remains in full force and effect.
[10] The terms of the conditional sentence, as agreed by Crown counsel and counsel for the appellant and as reflected in paragraphs 7, 8 and 9 at page 18 of the appeal book, are as follows:
RESIDE at 1488 Sandhurst Crescent, Pickering, Ontario and advise the reporting officer of any change of address in writing within twenty-four hours of the change;
REFRAIN from ASSOCIATION or COMMUNICATION directly or indirectly with Kelly Dey, Lorraine Smith, Heather McInnis, Caroline Kerr and Mary Norton; and
REFRAIN from attending at any business premise of Irving A. Burton Ltd.
[11] On the record before us, there is insufficient information concerning the appellant’s current self-employment circumstances to support a term of the conditional sentence precluding her access to trust funds during the course of her employment.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”