Court File and Parties

Court File No.: Guelph 2225/11 Date: 2012-08-13 Ontario Court of Justice

Between: Her Majesty the Queen — And — Kelley Anne Ruhl

Before: Justice G.F. Hearn

Heard on: May 30, 2012 and July 20, 2012

Reasons for Sentencing released on: August 13, 2012

Counsel:

• Ms. Jocelyn Speyer for the Crown
• Mr. Mark Hebner for the accused Kelley Anne Ruhl

Reasons for Sentencing

Hearn, J.:

Background

[1] On May 30, 2012, Ms. Ruhl entered a plea of guilty to one count of theft over relating to an offence alleged to have occurred between May 1, 2007 and June 30, 2011. The victim of the theft was her former employer, Jim Speers, the principal of Speers Electric Limited.

[2] The facts were heard and the matter was then put over to July 20, 2012 for a presentence report, an electronic technological report and for further submissions with respect to the facts.

[3] On July 20, 2012, additional facts were provided and a victim impact statement was read into the record and entered as an exhibit. A sentencing brief was also filed on behalf of Ms. Ruhl containing various letters and other documents, cases were provided by counsel, submissions made and the matter was then adjourned to today's date for sentencing.

Circumstances of the Offence

[4] The victim in this matter, Jim Speers, has owned and operated Speers Electric Limited for approximately 42 years. The business is an electrical business operating out of Fergus and Elora. For 16 years prior to June 2011, Ms. Ruhl was the secretary for Mr. Speers and was responsible for the day to day operation of the business. She maintained the company books and drafted employees' paycheques as part of her duties.

[5] In 2003, she was given signing authority on the Speers Electric bank account while Mr. Speers was on vacation.

[6] On June 23, 2011, Mr. Speers who up to that point had no reason to be concerned about Ms. Ruhl was asked to meet with the manager of the bank where his company maintained an account. There had been some issues as far as the bank was concerned with respect to the account and during that meeting Mr. Speers learned for the first time that in 2005 the accused had obtained a debit card for the Speers Electric bank account.

[7] What followed was a thorough examination of bank records and it was ultimately learned that beginning in May 2007 and continuing until June 2011, Ms. Ruhl had used that debit card to make cash withdrawals from the business account. She had used primarily two ATM machines to implement those withdrawals, one located at the branch of the bank itself in Elora and the second located at the Elora Raceway and Slots.

[8] Over the period alleged, Ms. Ruhl had withdrawn amounts of cash exceeding $100,000 from the ATM machine located at the bank and a further $178,726 in cash from the ATM machine at the Elora Raceway.

[9] Mr. Speers, after discussions with the bank manager, began looking into other inconsistencies in his business' account and discovered that Ms. Ruhl had also been paying her personal credit cards from the company bank account using internet banking. She had paid her Visa card and two Mastercards using funds from the company account.

[10] Production orders were obtained for bank statements with respect to the accused's credit card accounts and it was determined on the basis of those statements that she had paid off her Visa account between May 2, 2007 and June 23, 2011 to the tune of $63,875.24.

[11] It was also discovered that between September 3, 2008 into June 2011, she had paid off a Sears Mastercard in the amount of $37,413.74 from the company account. As well during the period of time commencing June 16, 2010 until June 2011, she had paid off her HBC Mastercard to the extent of $9,672.12 from the Speers Electric bank account. The total amount taken to pay off the three credit cards from her employer's bank account has been determined to be $110,961.10.

[12] Further examination of the records for the company revealed that between May 7, 2010 and June 17, 2011, Ms. Ruhl had also been writing cheques to herself on the bank account. She signed and deposited 123 cheques to her personal account in an amount totalling $314,135.53. Further, over that period of time she deposited 53 cheques from her personal bank account back into the Speers business account. The total deposits that she made on those 53 cheques was $247,534.52.

[13] When the matter came before the court on July 20, 2012 further particulars were provided by the Crown with respect to the actual amounts taken by Ms. Ruhl and the amounts that she has repaid. It was determined that the total amounts taken from the ATM machine from the business account, from the bank itself was $119,000. The total amount of the theft in its entirety is $722,119.13.

[14] A number of cheques were written as noted and as well Ms. Ruhl paid back the company by using her credit card. Further, since her arrest she has been able to pay back a further $2,000.

[15] The total amount still to be paid to the company and its actual loss to date is the significant sum of $288,286.41.

[16] Over the period set out in the count itself the Crown states and the defence takes no exception to the fact that there were over one thousand transactions involved in this scheme completed by Ms. Ruhl. As the Crown puts it there were over one thousand discreet acts committed to undertake the theft and the loss incurred by the business is appropriately described by the Crown as "profound".

Victim Impact Statement

[17] Filed as Exhibit 4 in this matter is the victim impact statement of Jim Speers who is the owner and operator of Speers Electric Limited, the actual victim in this matter. Mr. Speers did not read his statement in court, but the statement was read into the record by the Crown on his behalf.

[18] The contents of the statement clearly indicate that the conduct of the accused has created significant financial pressures for the company. Her actions have also caused Mr. Speers himself, as he puts it "stress, agony and hardship", and have caused his own family to watch as things unfolded and to witness the personal toll it has taken on him. He speaks of the accused as a valued and trusted employee, and a friend who for 16 years he had trusted with the financial affairs of his business. The losses were far beyond what was initially anticipated by Mr. Speers and have caused his company's relationship with its clientele, suppliers and manufacturers to be compromised. The accused had apparently destroyed three years of bookkeeping records (which the accused does not acknowledge) and had removed over 104 cheques from the company's ledgers and had made those cheques payable to herself. A number of payables had been misfiled and the payments of suppliers' accounts were compromised. He himself had to borrow a substantial amount of money to cover government remittances for other employees which amounted apparently to tens of thousands of dollars.

[19] When first confronted with the theft, he spent three days without sleep, tried to make sense of the situation and was having a difficult time believing that the accused was responsible. Not only he, but his family, had trusted the accused "like one of our family, including our sons, daughter-in-laws and even our grandchildren". He describes his array of emotions over the past number of months since the disclosure was made as ranging from compassion, fear, hopelessness to anger.

[20] As a result of the financial losses incurred and resulting from the theft, he has had to refinance his business, move his office location and has been required to borrow monies to allow the company to continue. He has been involved in the business for some 42 years and was looking forward to retirement, but the financial burden created by the theft has placed both the company and himself in a situation that he ultimately describes as "unbelievable" and that plan has been compromised.

Circumstances of the Offender

[21] As noted, there is a presentence report before the court and that report is thorough and sets out the background of Ms. Ruhl. In addition, a number of letters and other documents have been filed in the form of a sentencing brief, all of which are supportive of Ms. Ruhl (see Exhibits 1 and 3).

[22] Ms. Ruhl is currently 48 years of age. She has no criminal record and comes before the court as a first time adult offender. She is married and she and her husband have two children, ages 24 and 22, with both of whom she has a good relationship. She has been married to her husband since 1986 and their relationship appears to be close and caring, although her husband has expressed some concern that the accused had not been completely honest with him during the commission of the offence. He was, in fact, totally unaware of her addiction to gambling until the theft was discovered. Still, their relationship as described by others, including the husband, is one that is close and each are supportive of the other.

[23] Ms. Ruhl's background and her childhood are set out in some detail in the presentence report. It appears she effectively became the mother figure in the home after her own mother left the family when the accused was ten years of age. Ms. Ruhl assisted in raising her siblings and is described by her own father as "a little mother to her siblings". Her father did re-marry and she currently has a close relationship with both her father and her stepmother. Her siblings filed letters on her behalf with the court in support of Ms. Ruhl and set out the nature of Ms. Ruhl's childhood and the obligations that she undertook at a very young age. All letters speak in very positive terms as to the character of Ms. Ruhl.

[24] She maintained employment for a number of years prior to becoming employed with Speers Electric. She appears to be motivated and bright. Following the termination of her employment as a result of the theft she was able to obtain employment elsewhere as a cashier. Her new employer speaks highly of her, but did note to the presentence report author that although Ms. Ruhl had disclosed her gambling addiction to her at the time she was hired, she had not informed her of the outstanding charges. Still, she continues to be employed as far as I am aware, although that employment may be compromised somewhat as the business where she is currently employed is moving its location to a building which is apparently owned by the victim in this matter. In fairness, even when advised of the current situation and the court proceedings, her current employer stated that she has no difficulty with issues of trust as she has known the accused for some period of time.

[25] The primary concern for Ms. Ruhl has been an addiction not to alcohol or drugs, but to gambling. She initially began gambling at the Slots in Elora during her lunch breaks to relieve stress. She had some success initially, but her losses "snowballed" thereafter. She did recognize in 2009 that her gambling was out of control, but indicates she did not know how to get help. The addiction had become extremely serious eventually leading to the theft of money from her employer and friend, Mr. Speers.

[26] Following disclosure, Ms. Ruhl has taken very active steps to address her gambling addiction. She undertaken individual counselling and continues with that counselling. She also completed a gambling assessment in July 2011 immediately following the theft being discovered and as noted in the presentence report apparently scored in the highest category on the diagnostic criteria for pathological gambling. She was then referred to and successfully completed a three week residential program offered at a Windsor hospital from September 18 to October 8, 2011 for such addiction. The details of that program are set out within the presentence report and the sentencing brief.

[27] Her current counsellor at St. Mary's Counselling describes Ms. Ruhl as having worked hard on her recovery, although she appreciates it is an ongoing process. She has attempted to minimize potential risk factors to relapse by maintaining "her honesty and accountability" with her husband, her family and by restrictions on her access to money. She has undertaken to continue counselling and has also shown an interest in sharing her story with others to assist them and to further her own recovery.

[28] The material filed from her counsellor and the Windsor hospital clearly indicates that Ms. Ruhl is committed to recovery and the programming. She has shown remorse for her actions and has a sincere desire to make amends. The discharge summary from the hospital, completed by her psychiatrist during the program, refers to issues of abandonment while a child and her "hyper responsibility" which impacted on Ms. Ruhl's behaviour and are probably linked to her gambling addiction.

[29] It is clear from the letters from the hospital as well as the counsellor that have been filed, that Ms. Ruhl has worked very hard and diligently to deal with her gambling addiction and to make changes in her life. She has been noted to demonstrate the ability to apply the information and skills learned within the programs and counselling that she has undertaken.

[30] Filed as well are a number of letters in support of Ms. Ruhl from members of her family, acquaintances and friends. Details of those letters and the various individuals authoring those letters are set out in the presentence report. Without exception, the letters are supportive and speak in glowing terms of Ms. Ruhl as an individual and indicate surprise on the part of those individuals when the matter was discovered. All letters clearly support the position that the conduct of Ms. Ruhl was out of character for her. The material also speaks to the remorse and insight shown by Ms. Ruhl both of which were very evident when she spoke to the court and addressed her remarks to the victim and his family who were present in the courtroom.

[31] The probation officer preparing the report indicates that based on the interviews she conducted she is of the view that Ms. Ruhl could benefit from supervision and would be compliant with any order the court may wish to make requiring supervision within the community.

Position of the Parties

[32] The Crown acknowledges the otherwise good character of Ms. Ruhl and other mitigating circumstances including the plea and what certainly is a significant expression of remorse, but submits that the aggravating features here outweigh the mitigating factors and suggests a period of imprisonment in a traditional setting in the range of 9 to 18 months to be followed by a period of probation. The Crown submits that general deterrence and denunciation are significant principles of sentencing to be applied given the magnitude and duration of the theft. The Crown also requests restitution for the full amount of the loss to date.

[33] Defence advocates for a conditional sentence fully acknowledging that a period of imprisonment is appropriate. Defence counsel does not suggest a range of sentencing with respect to the conditional sentence, but acknowledges that the range suggested by the Crown is not inappropriate. Counsel submits, given the range of sentence suggested, the fact that Ms. Ruhl is not a danger to the safety of the community and, notwithstanding the aggravating circumstances here, a conditional sentence would still be consistent with the principles of sentencing otherwise. Both counsel advocate for a continuing period of probation after any custodial term. Defence counsel opposes any order for restitution and argues that it would be virtually impossible for Ms. Ruhl to make restitution in the amount requested.

Principles of Sentencing to be Applied and Relevant Case Law

[34] In Regina v. Hamilton, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at para. 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. ... The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[35] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. See Regina v. Wright, para. 16, a decision of the Court of Appeal, and further, Regina v. D. (D.), 163 C.C.C. (3d) 471 at para. 33, a further decision of the Ontario Court of Appeal.

[36] The principles of sentencing are set out in s. 718 to s. 718.21 of the Criminal Code and s. 718 reads as follows:

"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:

(a) to denounce 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 and to the community."

[37] Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] Section 718.2 states that a court that imposes a sentence shall take into consideration the following principles:

"(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances,"

and, further, sets out in the following paragraphs:

"(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[39] The case law establishes the principles to be considered here as primary factors are the principles of general deterrence and denunciation. Still, the court must recognize that rehabilitation is also a factor to be considered. In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate Society's condemnation of the offender's conduct.

[40] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[41] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[42] The purpose of general deterrence in sentencing is to protect the public from the commission of such crimes as before the court by making it clear to Ms. Ruhl and to other persons with similar impulses that if they yield to them, they will be met with severe punishment.

[43] In dealing with the issue of conditional sentences, I note the provisions of s. 742.1 of the Code:

"742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3."

[44] The case law that has developed since Regina v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449 indicates that the conditional sentence regime was enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. Justice Lamer in Proulx notes and states that a conditional sentence is something that is to be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool and by contrast Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, the conditional sentence should generally include punitive conditions that are restrictive of the liberty of the offender.

[45] Also, in Proulx the Supreme Court addressed the issue of restorative justice and noted that restorative justice is concerned with the restoration of the parties that are affected by the commission of the offence. The court stated:

"Crime generally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community."

[46] The case law reinforces the principle that each case must be decided and considered individually. In Proulx the court noted as well that even with the presence of aggravating factors which might indicate the need for denunciation and deterrence, a conditional sentence could still provide sufficient denunciation and deterrence even in cases in which restorative objectives are of diminished importance. A conditional sentence is a sentence that is capable of achieving the objectives of denunciation and deterrence particularly in circumstances where the offender is forced to take responsibility for his actions and make reparation both to the victim and the community, all the while living in the community under tight control.

[47] I have reviewed the various cases provided by counsel as well as others. I note that the cases often involve substantial amounts of money in breach of trust situations. In some of the cases involving the amount of money that is involved here, individuals have been sentenced to conditional sentences as well as traditional sentences giving more credence to the fact that sentencing is to be tailored to the individual that appears before the court at the time of sentencing. It is clear, however, that in circumstances where the fraud involves excessive amounts of money it would appear a traditional period of custody is appropriate. However, there are still circumstances where a conditional sentence can be appropriate even given the magnitude of the amount of money involved.

[48] The case law that I have reviewed indicates clearly that general deterrence and denunciation are paramount considerations in dealing with sentencing involving breach of trust frauds. Of particular assistance in addressing the principles to be considered are the cases of Regina v. Dobis, Regina v. Wismayer, Regina v. Pierce, Regina v. Williams where the court reviewed the various case law setting out principles dealing with sentencing in fraud cases involving large amounts of money and breaches of trust and sets out a series of factors to be considered as aggravating and mitigating in dealing with the sentencing in such a case. See also Regina v. Ruhland, Regina v. Bogart, Regina v. Corner, [2005] O.J. No. 3590, Regina v. L.E.C., Regina v. Dinardo, [2001] O.J. No. 2839, Regina v. J.W., Regina v. Cunsolo, [2012] O.J. No. 66, Regina v. Dhaliwahl.

[49] Ms. Ruhl presents as a first offender so the court notes the principle of restraint set out in s. 718(2)(e) of the Criminal Code which effectively states that imprisonment is a sanction of last resort and when imposed should be no longer than is minimally necessary to achieve sentencing objectives set out in the Code. The restraint principle requires the court to consider all sanctions then apart from incarceration and where incarceration is necessary the term should be as short as possible and tailored to the individual circumstances of the accused. General deterrence cannot be the sole consideration and appropriate consideration must be given to principles such as rehabilitation. See Regina v. Priest, 30 O.R. (3d) 538 (Ont.C.A.) and Regina v. Batisse.

[50] As well, when considering the situation with respect to Ms. Ruhl personally, the court notes the significant efforts she has made with respect to rehabilitation since her arrest. In Regina v. Jacko the Ontario court of Appeal again considered the principles to be applied when considering the imposition of a conditional sentence. That particular decision dealt with a sentence appeal concerning an aboriginal offender but the principles enunciated by the court and the comments made would, in this court's view, apply to all accused awaiting sentence. That decision effectively reinforced that a conditional sentence can appropriately address issues of general deterrence and denunciation and reaffirms the appropriateness of such a sentence depending on the particular circumstances of the offence, the offender and the community in which the offender committed the offence.

[51] There the accused had taken some positive steps and made considerable rehabilitative efforts following arrest and prior to the appeal being heard. The court spoke of the principles of general deterrence and denunciation and even though prominent, indicated those principles do not on their own forego the suitability of a conditional sentence since a properly fashioned conditional sentence can address both issues as noted in Proulx itself. In that case the trial judge had imposed a sentence of four years imprisonment. That sentence was varied to a conditional sentence of two years less a day by the Court of Appeal. The charges were very serious charges arising as a result of a home invasion which was planned, involved violence, employed use of a disguise and the use of a weapon. Denunciation and deterrence were certainly primary factors to consider, but not the only objectives of sentencing in place. At paragraphs 86 and 87 of that particular case, the court noted as follows:

"Restorative justice sentencing objectives are of crucial importance in the circumstances. They include assistance in rehabilitation, providing reparations for harm done to the victims and to the community, promoting a sense of responsibility in offenders and an acknowledgement by offenders about the harm their conduct has done to the victims and to their community.

In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed. The rehabilitative efforts here, more specifically those of Jacko, extend well beyond the promises made all too frequently between conviction and sentence, and all too infrequently executed and maintained in the days, weeks and months following imposition of a lenient sentence."

[52] With respect to the issue of proportionality, that particular principle is rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of the accused and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

Aggravating Factors

[53] The aggravating factors in this matter are as follows:

1. Abuse of Position of Trust

The accused was employed by Speers Electric Limited and Mr. Speers in a position of trust. She was not only a trusted employee, but also a friend. All of the good qualities described in the presentence report and the letters filed were the very reasons why she was placed in such a position by Mr. Speers and she abused that trust in a most egregious manner. That abuse of her position of trust is a statutorily aggravating factor to be considered on sentencing.

2. Magnitude of the Theft

The magnitude of Ms. Ruhl's crime cannot be understated. The theft involved over $700,000 and while amounts have been repaid in one form or another there still remains a loss of approximately $288,000.

3. Planning and Deception

Although perhaps not a great deal of planning was involved in the commission of the offence, there was some degree of planning as well as deception as evidenced by the existence of a debit card issued to Ms. Ruhl of which Mr. Speers had no knowledge, the missing company cheques and the misfiling of payables.

4. Duration and Numerous Transactions

The course of conduct of the accused represents a lengthy period of dishonesty. The thefts took place over approximately a four year period. This was not an isolated event and involved numerous thefts by various methods utilized by Ms. Ruhl. The facts indicate there were approximately one thousand distinct transactions representing thefts undertaken by Ms. Ruhl over that time frame.

5. Moral Blameworthiness

The duration of the theft magnifies the gravity of the conduct of Ms. Ruhl and highlights her moral blameworthiness. There would have been many occasions over the course of time where Ms. Ruhl would have had an opportunity to step back, realize the extent of her crime, rethink her position and reconsider her course of conduct. She did not do so and the offence was ultimately discovered not by her disclosure, but as a result of the concerns expressed by the bank manager and the investigation that followed. This is not a case where Ms. Ruhl voluntarily ceased her conduct.

6. Impact on Victim

The victim impact statement before the court speaks to the impact Ms. Ruhl's conduct has had on Mr. Speers and his company. The financial impact is significant, but Mr. Speers has also been personally impacted by Ms. Ruhl's actions as he trusted her and considered her to be a friend to both he and his family. The company and Mr. Speers have been put to additional costs, personal stress and financial loss as a result of Ms. Ruhl's actions.

Mitigating Factors

[54] The mitigating factors in this matter are as follows:

1. First Time Offender

Ms. Ruhl is 48 years of age and comes before the court as a first time offender. As far as I am aware she has never been involved in the criminal justice system previously and it is very obvious from her demeanour in the courtroom that this proceeding is taking its emotional toll on her as well as her family. She has not only victimized Mr. Speers by her conduct, she has also victimized her own family.

2. Guilty Plea

The accused has entered a plea of guilty which itself is an indication of remorse and also an indication of potential for rehabilitation. A trial and/or preliminary hearing would have taken several weeks, given the number of transactions and the period over which this theft occurred. Ms. Ruhl, by her plea, has eliminated the need for that.

3. Genuine Remorse and Acceptance of Responsibility

In addition to her acceptance of responsibility, I accept her remorse is genuine and sincere as evidenced by her comments in court, the comments to the probation officer and the various remarks contained in the letters filed on her behalf. Her acceptance of responsibility is also evidenced by her cooperation with the authorities and during this proceeding.

4. Gambling Addiction

Of importance, in my view, is the fact that the conduct of Ms. Ruhl appears to have been completely out of character for her and appears to be a consequence of a significant gambling addiction for which she has sought help. There is a direct connection between that addiction and the commission of the offence. Ms. Ruhl has undertaken counselling and programming both as an in-patient and otherwise. She is fully committed to her recovery, shows insight into her actions and wishes to assist others dealing with a similar issue.

There has been no formal evidence led with respect to such addiction other than that contained in the medical reports and the psychiatrist's letter, but it is clear that the pathological gambling addiction suffered by Ms. Ruhl initiated and was at the root of her criminal conduct.

Courts have considered such an addiction to be a serious one that requires intervention and as an addiction that can cause otherwise law abiding members of our community such as Ms. Ruhl to commit acts which they would not otherwise commit.

The courts on occasion have recognized this and granted conditional sentences even where significant amounts of money have been secured by theft or fraud while those accused were in positions of trust where a gambling addiction was evident. (See Regina v. Corner, [2005] O.J. No. 3590, Regina v. A.(J.), [2003] O.J. No. 2167, Regina v. Dinardo [2001] O.J. No. 2839, Regina v. Dulmaje [2003] O.J. No. 3834].) There are also cases involving similar activity and addiction where traditional periods of custody have been imposed. (See Regina v. Poutney, Ontario Court of Appeal, July 17, 2006 upholding a sentencing imposed at trial on a bookkeeper who stole more than $300,000 from her employer over three years with a significant cause of the thefts being related to the appellant's gambling addiction. Regina v. Toia (2007) (O.N.C.J.) 55, again an employee theft of some $300,000 over a period of five years with a gambling issue in place and a sentence imposed of 15 months imposed in a traditional setting.)

These and other cases indicate that a gambling addiction is an addiction like any other addiction. It is an illness and effectively impairs one's ability to make appropriate decisions and exercise what otherwise might have been good judgment. The extent of such addiction and the concern the public has with this issue is evidenced here by the counselling programs available and the fact that an in-patient rehabilitation program for pathological gamblers such as Ms. Ruhl is in place in a public hospital setting.

5. Repayment Efforts

The extent of Ms. Ruhl's addiction is clearly shown by the length over which this event took place and the number of transactions involved. The Crown submits that repayments were made simply to continue to perpetrate the theft, but an equally plausible interpretation is that Ms. Ruhl was simply trying to rectify her wrong which is more consistent with her character as noted in the material filed.

6. Consequences Suffered

Ms. Ruhl has suffered significant consequences as a result of her conduct. She has been embarrassed and humiliated within her community. She is ashamed and has compromised to some degree her standing with friends and family, although all remain supportive. She has lost her job and has taken on lesser employment. It is of note that this action on the part of Ms. Ruhl was not undertaken as a result of greed, but the consequences of an addiction. There is absolutely nothing before the court to indicate that Ms. Ruhl had acquired significant assets nor led a lavish lifestyle.

7. Rehabilitation Efforts

The accused has recognized and finally come to grips with her addiction. She has undertaken counselling, been involved in the program previously noted and is committed to ongoing counselling. She wishes to speak to others who suffer from a similar addiction and wishes to do so not only to assist other, but also to further her own recovery. Her efforts at rehabilitation are commendable, sincere and it is clear that she has worked hard and diligently to recover. She is an excellent candidate for continued rehabilitation and has undertaken a number of very positive steps already to date. She has good family support as well as support within the community and a relapse plan is in place.

8. Positive Presentence Report and Commitment to Restitution

The presentence report is positive. Ms. Ruhl has many good attributes and has been described as the "rock" of her family. She assumed many adult responsibilities when younger and the medical evidence would seem to indicate that the assumption of those responsibilities is a factor in her addiction. Although there are still substantial monies owing, Ms. Ruhl has indicated that she is committed to making restitution and since her arrest, as I understand it, has been able to pay another $2,000 which although a small amount, given the large amount owing, in view of her limited financial means represents a commitment on her part to pay what she can towards restitution.

Sentence to be Imposed

[55] This is a troublesome sentencing. The sentencing of an individual is perhaps one of the most difficult tasks for a judge and the circumstances of this particular case certainly emphasize that difficulty. The theft here involves a substantial amount of money and the conduct takes place over an extended period of time. The case law dictates that general deterrence and denunciation are primary principles of sentencing to be considered.

[56] At the same time there are mitigating circumstances here involving the accused, including most notably her gambling addiction which led to her conduct. She has pled guilty to the charge, is extremely remorseful and has accepted full responsibility for her dishonesty and her criminal conduct. She is unlikely to re-offend, has insight into her conduct and is a prime candidate for rehabilitation. Everything about Ms. Ruhl indicates a conditional sentence is appropriate while everything about the offence indicates otherwise.

[57] In considering the appropriate sentence, I consider the comments of the court in Regina v. Costa, [1996] O.J. No. 299 when dealing with the sentence of a crime of a much more serious nature than that before the court, the court stated at paragraph 35 as follows:

"There is, however no standard sentence for there is neither standard crime nor standard criminal. To be certain there are various principles whose application governs the imposition of sentence in any case. Their application, however, does not always mandate the same result."

[58] Looking at the total circumstances of the offence and the offender, I am ultimately not satisfied that the fundamental principles of sentencing set out in the Code can be addressed by way of a conditional sentence in this case. In Proulx, the court recognized and indicated that there may be circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct. This is one of those cases.

[59] All of the good qualities of Ms. Ruhl and the mitigating factors in place impact on the length of the sentence, but the period of imprisonment to be imposed must, in my view, be in a traditional setting to effectively address issues of general deterrence and denunciation. The amount of the theft involved, the egregious breach of trust, the duration of the conduct and the numerous transactions leading to the theft, as well as the impact the theft has had on the company and Mr. Speers, simply cannot be adequately denounced nor can the principle of general deterrence be properly addressed within the context of a conditional sentence.

[60] When I look at the entire set of circumstances here and consider what is a fit and just sentence, I am satisfied that the least restrictive sentence which can reasonably address all principles of sentencing is a period of imprisonment in a traditional setting of 6 months to be followed by a period of probation of 3 years. The terms of the probation order will be as follows:

a) You will keep the peace and be of good behaviour.

b) You will appear before the court when you are required to do so.

c) You will notify the court or the probation officer in advance of any change of name or address.

d) You will promptly notify the court or the probation officer of any change of employment or occupation.

e) You will report within two working days of the completion of your release from custody to a probation officer as directed and thereafter be under the supervision of the probation officer and report at such times and places as the probation officer may require.

f) You will attend and actively participate in any rehabilitative program or counselling for any area identified by your probation officer and specifically with respect to issues about compulsive gambling and you will provide proof as may be required by your probation officer of your attendance at and your participation in any program that is recommended.

g) You will make reasonable efforts to find and maintain suitable employment.

h) You will not attend at nor enter any casino or racetracks where slot machines are present nor will you access any online gambling sites.

i) You will make restitution to Speers Electric Limited in the amount of at least $200 a month commencing the first month of your probation order and continuing in consecutive months thereafter with each instalment to be made by the last day of each month and to be paid to the Clerk of the Court at 36 Wyndham Street, Guelph, Ontario or at such location as the court may be situated which payments are to be to the credit of Speers Electric Limited.

j) You will perform 150 hours of community service work with a recommendation that such community service work involves you addressing others with respect to gambling addictions and its consequences and which community service is to be performed at a time and rate to be agreed upon with your probation officer or supervisor and which service will be completed within the first 18 months of the probation order.

[61] In addition to the period of probation there will also be a s. 738 order in favour of Speers Electric Limited in the amount of $288,286.41. The court appreciates that Ms. Ruhl does not have the ability to pay that amount and may never have such ability, but she has indicated a clear desire to make restitution and if monies become available, she will be required to honour the restitution order. Further, Mr. Speers has already been put to considerable financial loss and expense with respect to this matter, there is no dispute about the amount owing and a considerable amount of time has been spent by counsel determining the appropriate amount of the loss. It would be unfortunate if Mr. Speers had to incur the further costs of commencing a civil proceeding the results of which would be academic. I am also of the view that such order will not impact on the rehabilitation of Ms. Ruhl.

[62] This is a secondary designated offence and there will be an order for a sample of Ms. Ruhl's DNA to be taken in accordance with the provisions of the Criminal Code.

[63] The victim fine surcharge will be waived on this particular count and the remaining count on the information will be marked withdrawn.

[64] I would also like to thank counsel for their very thorough and respectful submissions made during the course of this very difficult matter. Your input has been of considerable assistance to the court.

Released: August 13, 2012

Signed: Justice G.F. Hearn