Court File and Parties
Court File No.: St. Catharines - 2111-998-12-N5090-00 Date: 2013-10-11 Ontario Court of Justice
Between: Her Majesty the Queen — and — Wanda Sider
Before: Justice D.A. Harris
Heard on: July 9, 2013 and August 29, 2013
Reasons for Sentence: October 11, 2013
Counsel:
- Ms. S. Clermont / Mr. M. Eshuis for the Crown
- Ms. M. Currie for the accused, Wanda Sider
Reasons for Sentence
HARRIS J.:
Introduction
[1] Wanda Sider entered a guilty plea to a charge of defrauding her employer of $237,156.44 over a 42-month period. She is before me today to be sentenced.
[2] Crown counsel has suggested that imprisonment for 18 months is appropriate. He suggested that this should be followed by probation. He also requested a DNA order and a restitution order.
[3] Counsel for Ms. Sider suggested that imprisonment for six months is appropriate, followed by probation. She opposed a DNA order and argued that a restitution order is unnecessary since Ms. Sider did not defend a civil suit brought against her by the employer.
[4] My task here is to determine the appropriate sentence.
[5] In doing this, I must keep in mind the fundamental purpose and principles of sentencing as set out in sections 718 through 718.2 of the Criminal Code.
The Law
[6] The fundamental purpose of sentencing as expressed in section 718 is to contribute 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 objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[7] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. But there is no single fit sentence for any particular offence.
[8] This offence involved a breach of trust. Section 718.2(a)(iii) of the Criminal Code specifically provides that this is an aggravating factor.
[9] Section 718.2(e) provides that "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".
[10] The Supreme Court of Canada discusses the application of this section in Gladue v. The Queen, [1999] S.C.J. No. 19 and in particular says that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
[11] The determination of an appropriate sentence involves attempting to apply a blend of the above principles including specific and general deterrence, denunciation and rehabilitation.
[12] In doing this, I must look at the facts of this offence and the background of Ms. Sider.
The Offence
[13] Ms. Sider worked at TD Canada Trust for 17 years.
[14] During a 42-month period, she used the information available to her as a loans officer to create 29 fictitious/fraudulent accounts. She issued debit cards, approved loans and made cash advances to these. She moved money from account to account. In the end, TD Canada Trust lost $237,156.44.
[15] None of that money has been repaid. There is no prospect of it being repaid in the foreseeable future.
Background of Ms. Sider
[16] Ms. Sider is now 51 years old.
[17] She has two teenaged children living with her and her husband.
[18] She has no prior criminal record. This is a mitigating factor in her favour. It is tempered somewhat by the fact that offences such as hers can only be committed by persons of previously impeccable backgrounds.
[19] The offences occurred at a time of both emotional and financial difficulty.
[20] Her husband had been involved in two affairs and then Ms. Sider became aware of him having had another sexual relationship with a 17-year-old boy.
[21] After they bought a new, more expensive house, her husband gave up a secure job in order to pursue teaching, even though he had no job prospects in that field.
[22] She created one fictitious account in order to obtain a little financial assistance. This snowballed as she had to create more and more to keep this covered up.
[23] Ms. Sider has entered a guilty plea. That is to be taken not only as an acceptance of responsibility but also as an expression of remorse.
[24] It is also in keeping with her earlier actions.
[25] When she was called in for an interview at the bank, she admitted everything.
[26] She was fired immediately.
[27] The next day, she called the police and told them that she had been fired and also told them why. She provided the police with the name of the person at TD Canada Trust and waited for them to investigate the matter so that she could turn herself in.
[28] She is now earning minimum wage working in a greenhouse. Her husband is also earning minimum wage. They lost their home and are living in cheaper rental accommodations. They are able to pay their bills and take care of their children but no more.
[29] Ms. Sider did not defend a civil suit brought by TD Canada Trust and she assumes that they have obtained default judgment against her.
[30] She has been attending counselling since April 2013. This is focussed on her marital issues, as well as her own mental well-being.
Analysis
[31] The Ontario Court of Appeal has repeatedly affirmed that in cases of large-scale fraud committed by a person in a position of trust, the most important sentencing principle is general deterrence. Mitigating factors and even rehabilitation become secondary. They observed that most major frauds are committed by well-educated persons of previous good character. Thus the sentences in such cases are not really concerned with rehabilitation but rather with general deterrence and with warning such persons that substantial jail sentences will follow this type of crime, to say nothing of the serious disgrace to them and everyone connected with them and their probable financial ruin.
[32] I must keep in mind however that I cannot ignore rehabilitation entirely.
[33] I must also not lose sight of the mitigating factors present here. She did plead guilty. She is truly remorseful. She has made efforts to turn her life around. These mitigating factors are not sufficient to warrant my imposing a sentence outside of the appropriate range, but they certainly warrant reducing the sentence from that which I would otherwise impose.
[34] Finally, at para. 43 in Gladue, the Supreme Court of Canada notes that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now, the sentencing judge must also focus upon the restorative goals of repairing the harm suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender and attempting to rehabilitate or heal the offender.
[35] In a case like this, where Ms. Sider will not likely be able to pay back TD Canada Trust, she can still give something back to the community as a whole, in the form of community service.
Sentence
[36] After considering all of the above factors, I find that the appropriate sentence here is imprisonment for six months.
[37] That will be followed by probation for three years. The terms of that probation order are that Ms. Sider will:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
notify the court or the probation officer in advance of any change of name or address;
promptly notify the court or the probation officer of any change of employment or occupation;
report within two working days or as the court directs in person to a probation officer as directed and, thereafter, be under the supervision of a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places as that person may require or as follows: she will report to her probation officer within two working days of her release;
perform 150 hours of community service. The work is to commence within 60 days of the commencement of this order and shall be completed at a rate of not less than 10 hours per month in consecutive months and shall be completed to the satisfaction of her probation officer or designate within 17 months;
cooperate with her probation officer and sign any consents or releases necessary to permit the probation officer to supervise her and provide on request proof of compliance with any term of this order;
attend for and actively participate in, to the satisfaction of her probation officer, any assessment, treatment or counselling as required by her probation officer; and
make reasonable efforts to find and maintain suitable employment.
[38] There will be a restitution order pursuant to section 738 of the Criminal Code in favour of TD Canada Trust in the amount of $237,156.44. TD Canada Trust can then choose whether to enforce this order or to pursue a different civil remedy elsewhere.
[39] I find that making a DNA order is neither necessary nor appropriate here and I decline to do so.
[40] Finally, I am waiving the surcharge in light of her financial situation.
Released: October 11, 2013
Signed: "Justice D.A. Harris"
Justice D.A. Harris