Court Information and Parties

Information No.: 10-1405

Ontario Court of Justice

Her Majesty the Queen v. Wayne Piercey

Reasons for Sentence

Before the Honourable Justice B. Pugsley

Date: January 22, 2013 at Orangeville, Ontario

Appearances

D. Garbaty – Counsel for the Crown

K. Marynick – Counsel for W. Piercey

Judgment

PUGSLEY, J. (Orally):

Wayne Piercey stands before the Court for sentencing on six counts of fraud, having been found guilty after a lengthy trial.

Briefly put, while president of the Shelburne Branch of the Royal Canadian Legion, the defendant diverted money to his own use from the Legion Poppy Fund. Evidence at trial established that the Poppy Fund is used by the Legion to support veterans and their spouses, including at times, their medical and prescription needs. The Victim Impact Statement filed on behalf of the Legion speaks volumes as to the effect on the Legion of these crimes.

The total amount stolen by the defendant was just under $5,000 and engaged multiple acts of theft over a period of time.

The defendant's sometimes intimidating management style as Legion president contributed to his ability to get away with these acts of fraud.

The defendant is 68 years of age, is retired, lives on a modest family income, and both he and his long-time spouse have significant medical problems. The defendant has no prior criminal record.

The Crown and defence referred me to numerous helpful cases. Those cases underline the point that, on sentencing, each case is fact specific.

The Crown seeks a substantial period of jail in the reformatory. The defendant submits that a conditional sentence of imprisonment is appropriate or, failing that, a blended sentence which will combine some jail and some incarceration in the community.

Legal Framework

The leading case here on the availability of a conditional sentence is Regina v. Proulx, reported as 2000 SCC 5, [2000] 1 SCR 61. Theft from a position of trust is a very serious offence. It is obvious why. Monies intended to benefit an employer or, as here a charity, are stolen by the very person who is entrusted to collect and keep the money safe. Such offences are specifically identified by Parliament as engaging a mandatory consideration of the aggravating sentencing provision set out in Section 718.2(a)(iii) of the Criminal Code.

A sentence of jail is almost always required to bring home to the defendant and those who might also be tempted to steal monies held by them in trust, the denunciation of the court and of the community of a defendant's actions and the need to deter the defendant and others from such future acts of dishonesty.

Every year countless Canadians deposit coins into poppy trays in support of our honoured veterans and their survivors. The Poppy Fund benefits those persons directly in our community. When funds meant for their aid are found to have been diverted to the defendant's own pocket, the Royal Canadian Legion itself is dishonoured and put at risk of diminished givings and not being able to fulfill its mandate to its increasingly aging and needy clients. Plainly put, these were despicable thefts carried out on more than one occasion and placed the defendant's own selfish needs before those of the proper beneficiaries of these funds. It was a fundamental breach of trust.

Aggravating Factors

The defendant has been found guilty after trial. A defendant is absolutely entitled to have a trial, and cannot be in any way criticized for choosing to make the Crown prove its case. Several charges resulted in acquittals. At the same time he is not entitled to the mitigation accorded to a defendant who has accepted responsibility for his criminal acts, indicated his early remorse and avoided the necessity of a trial and the consequent requirement of witnesses to testify.

As already referred to, the evidence also disclosed that the defendant's management style as president created an atmosphere of intimidation among some at the Branch, which intimidation served to support his continued intentional depleting of monies held by him in trust.

Mitigating Factors

The defendant has suffered from ill health and has managed to journey through his life to the age of 68 without running afoul of the criminal law. This is to his credit. Indeed, today he is spending all of that credit for his past good conduct.

Sentencing Decision

I am mindful of the sentencing provisions set out in Sections 718 and following of the Criminal Code, and in particular, the repeated requirement that a sentencing court consider all other sentencing options before resorting to a sentence of jail. As recognized in Proulx, some sentencing factors here favour jail and some favour a conditional sentence. That said, both counsel rightly recognize that incarceration in some form is undoubtedly required for the offences that are before me today. The only real question, therefore, is whether the defendant ought to serve his sentence in a bricks and mortar reformatory or in the community by way of a conditional sentence.

Regina v. Proulx also makes it very clear that a conditional sentence of incarceration is, notwithstanding, a sentence of incarceration. The mitigating features outlined by Mr. Marynick, including the defendant's age, his medical status, that of his spouse, and his prior good character, have led me to the conclusion that this defendant, in these circumstances, can properly be allowed to serve a sentence of incarceration in the community, but under strict supervision.

As a continuing reminder to the defendant of his status as a convicted felon, and to secure the proper completion of his sentence, electronic monitoring shall be a requirement of the sentence. In other words, Mr. Piercey will wear an ankle bracelet that will monitor his compliance with this order. The ankle monitor will also serve to remind the defendant that he is serving a sentence of incarceration, albeit in the community. The primary reason for this conclusion is that the defendant would be affected by a sentence of imprisonment in a jail disproportionately to the offences he is to be sentenced upon today. The public does not need to be physically protected from Mr. Piercey.

In my view, a reasonable person knowing all of these factors would find a conditional sentence to be appropriate on these facts.

Sentencing Order

Can you stand up now, please, Mr. Piercey. Today you have apologized to the Legion for the first time. Perhaps this is the first step in your rehabilitation. On Count 7 on the Information and on the other 5 counts concurrently, you will be sentenced to be imprisoned for the term of 1 year, and that sentence will be served in the community, subject to you complying with the following conditions:

Conditional Sentence Conditions

General Conditions:

• You shall keep the peace and be of good behaviour.
• You shall appear before the court when required to do so by the court.
• You will report within two working days, in person, to your supervisor, and thereafter report when required by the supervisor and in the manner directed by the supervisor.
• You will remain within the province of Ontario unless you have written permission to go outside the province from the court or your supervisor, and you will notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation.

First Six Months – House Arrest:

For the first six months of this order, you will not be outside your residence except for the following purposes:

• To report to your supervisor;
• To comply with any condition of this order upon places, hours or schedule as your supervisor may approve of in advance;
• For medical emergencies, appointments or procedures for yourself, for your wife or for any member of your immediate family;
• For legal appointments or appearances;
• For lawful employment on such hours, places or schedule as your supervisor may approve in advance of such employment;
• Each Saturday from 12 noon to 3 p.m. to shop for personal necessities;
• Such other times with the prior written permission of your supervisor, such permission to be specific as to place, time and reason, and to be on your person while away from your residence;
• Each Sunday between 10 a.m. and 1 p.m., for the purpose of religious observance.

Second Six Months – Curfew:

For the second six months of this sentence, you will abide by a curfew, to be in your residence between the hours of 11:30 p.m. and 6 a.m. each day of the week, except for medical emergencies, appointments or procedures for yourself, your spouse or any member of your immediate family or with the prior written permission of your supervisor, specific as to time, place and reason, and to be carried with you while out of your residence.

Restitution:

You will make restitution to the Shelburne Branch of the Royal Canadian Legion in the total sum of $4,792.63, paid through the clerk of the court and to be paid in full before the end of this 12 month sentence.

Association and Residence Restrictions:

• You will not associate directly or indirectly with Carl Robinson or any member of his immediate family except through legal counsel.
• You will not attend at or upon the premises known as the Shelburne Legion.
• You will reside at such place approved of by your supervisor or delegate and not change your place of residence without first obtaining the written approval of the supervisor or their delegate.

Written Apology:

Within the next 90 days you will apologize in writing to the Shelburne Branch of the Royal Canadian Legion, and the apology shall be delivered to your supervisor, and a copy of the apology shall be copied to me by way of the judge's secretary so I know what you say, sir. I heard you today. It sounded like it was coming from the heart. You are going to write out a letter of apology that the Legion will have and I will read.

Electronic Supervision Program

In addition, you will comply with the following schedule of the Electronic Supervision Program:

• You will report immediately to your supervisor or his or her designate for the purpose of arranging enrollment in the Electronic Supervision Program.
• You shall participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor and/or a designated Electronic Supervision Resource Officer for the purpose of monitoring your house arrest, home curfew, residence restriction, et cetera.
• You shall be placed on electronic supervision for the first six months of this sentence.
• You shall permit the Ministry of Community Safety and Correctional Services staff and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the Electronic Supervision Program equipment.
• You shall make yourself available either by phone or in person as may be required at any time during house arrest, home confinement or curfew, and in particular, you shall answer the phone at any time during house arrest, home confinement or curfew and present yourself to a Ministry of Community Safety and Correctional Services staff, police services and/or persons who are authorized by the Ministry of Community Safety and Correctional Services, associated with the Electronic Supervision Program, at the door of your residence at any time during house arrest, home confinement or curfew, for the purpose of confirming your presence and compliance.
• You shall reside at an address approved of by your conditional sentence supervisor and/or designate, and not change your address without prior permission of your supervisor.
• You shall permit Ministry of Community Safety and Correctional Services staff and/or police services in your residence during investigation of any alerts, either technical, for example, transmitter battery low, or compliance issue, for example, subject leaving during curfew, generated while on the Electronic Supervision Program.

Acknowledgment of Understanding

Do you understand the terms of your conditional sentence, sir?

WAYNE PIERCEY: Yes, sir.

THE COURT: It is a serious matter to breach this conditional sentence. As Mr. Marynick will tell you, one possible effect of being found to have breached this order is that the remainder of your sentence can be converted to real jail with steel doors that go clang. Do you understand, sir?

WAYNE PIERCEY: Yes, sir.

THE COURT: If this order needs to be reviewed or changed, you can bring it back before the court and ask the court to consider amending the order. You can do that through Mr. Marynick or your supervisor, or even by making a request at the counter yourself, and the court will consider whether to change the order. In a few minutes you will get a copy of this order. It sets out what your rights are but also your obligations. Please make sure you understand both your rights and obligations. If you have any questions clear them up with your supervisor or with Mr. Marynick.

Probation Order

At the end of the conditional sentence order you will be placed on probation. That probation will be for a further 12 months. The terms of that probation will be:

• You keep the peace and be of good behaviour;
• Return to court if required to do so;
• Report forthwith upon the end of your sentence to your probation officer in person, and thereafter as required by your probation officer;
• Not attend at the Shelburne Branch of the Royal Canadian Legion;
• Not associate directly or indirectly with Carl Robinson or a member of his immediate family, except through legal counsel.

Do you understand the terms of your probation order, sir?

WAYNE PIERCEY: Yes, sir.

THE COURT: Again, if this order is breached and you are found to have been guilty of such a breach, you could go to jail. Do you understand that caution?

WAYNE PIERCEY: Yes, sir.

THE COURT: Again, if this order needs to be reviewed or changed, you can bring the matter back before the court and ask the court to consider changing the terms of the probation order. You can do that through your lawyer or your probation officer or again, by coming to the court and making the request which will be placed before a judge for consideration.

In a few minutes you will get a copy of the probation order. Again, please understand your rights and duties, clear up any misunderstandings with your lawyer or your probation officer. Anything I've forgotten, counsel?

MS GARBATY: No, Your Honour.

THE COURT: And I think on the judgment, all the charges were disposed of one way or the other, so that is the sentence of the Court. There will be considerable paperwork for your client to sign in the main court office before he leaves. I think there was a duplicate Information, Ms Garbaty.

MS GARBATY: That could be withdrawn.

THE COURT: The duplicate Information which had certain release documents is withdrawn at the request of the Crown. Thanks everyone for attending today in support of the defendant and in support of the Legion.

WHEREUPON THIS MATTER CONCLUDES

Transcript Ordered: January 22, 2013

Transcript Completed: January 31, 2013

Ordering Party Notified: January 31, 2013