Court File and Parties

Court File No.: Cayuga – 1111-998-13-201-00 Date: 2015-01-15 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Lynne Macynski

Before: Justice D.A. Harris

Heard: July 16, 2014 and September 24, 2014

Released: January 15, 2015

Counsel:

• N. Engineer and D. King, counsel for the Crown
• A.D. Hilliard, counsel for the Accused, Lynne Macynski

Reasons for Sentence

HARRIS J.:

Overview

[1] Lynne Macynski pled guilty to theft over $5,000. More particularly, she admitted to taking $86,234 from Grace United Church in Caledonia.

[2] She is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence her to imprisonment for between six and nine months.

[4] Counsel for Ms. Macynski suggested that I impose a conditional sentence of imprisonment.

[5] Both counsel agreed that I should also place her on probation and make a stand-alone order for restitution.

[6] I find that a conditional sentence is not appropriate in this case and that Ms. Macynski should be imprisoned for six months. My reasons for this are as follows.

Conditional Sentence of Imprisonment

[7] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[8] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[9] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[10] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community would not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[11] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[12] In Ms. Macynski's case, the first four prerequisite criteria have been satisfied.

[13] Her offence was not excluded pursuant to section 742.1 at the time that she committed it.

[14] Nor is it punishable by a minimum term of imprisonment.

[15] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[16] Finally, I find that Ms. Macynski serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has stayed out of trouble since being charged with the current offence. I am satisfied that, with the appropriate safeguards in place, there is no danger that she would return to crime following the imposition of a conditional sentence.

[17] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

[18] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, 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 reparation 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.

[19] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[20] 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. There is no single fit sentence for any particular offence.

[21] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[22] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[23] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[24] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[25] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[26] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[27] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[28] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said 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.

[29] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[30] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[31] Ms. Macynski's offence involved a breach of trust. The Criminal Code specifically provides that this is an aggravating circumstance and that her sentence should be increased to account for that.

[32] I have noted before that I do not need the Criminal Code to tell me this. Common sense and numerous appellate decisions have all made it clear that criminal breaches of trust are serious offences often warranting jail sentences. When those breaches of trust continue over several years and result in the embezzlement of a substantial amount of money, the offence is a serious one, warranting a substantial jail sentence.

[33] The following paragraphs set out just a sample of the statements made by the Ontario Court of Appeal regarding such offences.

[34] In R. v. Bogart, Laskin J.A. wrote that "Fraud over $5,000 is a serious offence, attracting a maximum sanction of 10 years in jail."

[35] He then went on to state that:

29 Two aspects of the need to give effect to general deterrence come into play in this case. First, general deterrence is the most important sentencing principle in major frauds. Second, when general deterrence is "particularly pressing", as it is here, the preferable sanction is incarceration.

30 This court has 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.

[36] In R. v. Bertram, Brooke J.A. wrote that many, if not most, people who commit major frauds "were in the main first offenders. They were educated people of previous good character and reputation, and they held important positions".

[37] In R. v. Gray, Carthy J.A. wrote that a fraud committed over an extended period of time "is not a crime of impulse" and that it "is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from the sentences given to others."

[38] In R. v. Wismayer, Rosenberg J.A. wrote:

General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for those offences that are likely to be affected by a general deterrent effect. Large scale well-planned fraud by persons in positions of trust, such as the accused in R. v. Pierce, would seem to be one of those offences. Even then, however, I would not want to lay down as a rule that a conditional sentence is never or even rarely available. Each case will have to be determined on its own merits.

[39] In R. v. Pierce, Finlayson J.A. wrote:

I would, however, refuse the application to permit the appellant to serve the sentence in the community. The abuse of a position of trust or authority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines under s. 718.2. This factor has traditionally drawn a severe custodial term even with first offenders. I do not believe that this court should exercise its discretion in favour of having the appellant serve her sentence in the community where, as here, the trial judge has clearly stated his concerns as to how a non-custodial term would be viewed by the community. Despite the passage of s. 742.1, the principles of general deterrence and public denunciation require a custodial term in these circumstances.

[40] I must also consider the fact that Parliament has since amended the Criminal Code such that a conditional sentence of imprisonment is no longer permitted for someone who commits the offence of theft over $5,000. I should view this amendment as a reflection of Parliament's intention with respect to such offences.

[41] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victims, and the background of Ms. Macynski.

The Offence

[42] Ms. Macynski resided in Caledonia where she was a member of Grace United Church.

[43] As Treasurer of Mission and Service Funds she had signing authority for the Mission Account at the Church. Between 2009 and 2012, she wrote a number of cheques payable to herself.

[44] Following discovery of this, she ultimately admitted to taking $86,234 from the Church.

Victim Impact

[45] A Victim Impact Statement was prepared by George Greenless, Chair of the Board of Trustees of Grace United Church.

[46] In it, he notes that the actual loss might well exceed $86,000 but that the Church could not afford the cost of a more extensive audit of pre-electronic financial records.

[47] I note here that while he may or may not be correct in this, I am sentencing Ms. Macynski on the basis that she stole $86,234 and no more.

[48] I agree however with the comment of Mr. Greenless that "There is little sense in establishing a true figure as $86,000 was fully sufficient to shock the congregation."

[49] I have included the following rather lengthy extract from the Victim Impact Statement which I consider to be quite telling:

The impact of the loss of funds was felt by the various groups around the world and locally who couldn't fund some need. A kid didn't get fed somewhere around the world, a cancer patient couldn't get to a treatment, a child didn't get to go to camp, somebody in Caledonia went hungry, a homeless person spent another night on the street, a senior didn't get to his only outing of the week, a school in Africa couldn't take in a student and similar individual stories … this is the real cost of the loss of funds. Each of these individual events is not a costly item, the real effect of loss of $86,000 is very significant to hundreds of people all over.

The real impact is emotional:

• The loss of faith put into a long term friend of most of the congregation.

• The memories of Ms. Macynski as Treasurer of Mission & Service Funds providing a weekly talk, during Church services, on a different Mission work project that we were supporting financially.

• The reports at Council meetings monthly over 4 years that were total fabrications of where funds had been spent. These written reports were submitted and now are part of our Council minutes.

• The lack of rationale for the taking of the money.

• The apparent complete lack of remorse demonstrated by Ms. Macynski.

• No offer of any restitution or apology to the congregation by Ms. Macynski.

• Ms. Macynski was a choir member and people's attitudes on her actions and reactions caused a rift in the choir.

• There was a questioning of controls established within the Grace United Church government and some lack of faith in the leadership of Grace's Church's council (Controls at Grace United have now been tightened up and new policies and procedures are in place).

• After the crime was discovered, there was a question on how to proceed. Do we report the theft to the authorities or do we handle it within the local church government? There were two sides to that discussion and there remain two sides. The trustees' decision to contact the police authorities is not popular in some congregational circles.

• How does one forgive? Should Ms. Macynski be allowed to return to Grace United? There are many differing opinions and should she decide to return there may be future repercussions/impacts to Grace United Church.

• Having to explain to the community over and over as to what happened and trying to maintain their faith in Grace United Church.

Thank you for allowing us to let you in on the victim's side of the story. We at Grace United continue to support Mission & Service Funds nationally and locally at levels that are greater than prior to the discovery of theft. It is not possible to be sure but it seems like the congregation thought that we needed to "catch up" the losses. We are stronger in our operational controls than we were; but we do upset some people who are not used to the level of checking that we now need.

The members of Grace United are moving forward in our mission but we all have a scar on our hearts, a result of having a trust broken.

Background of Ms. Macynski

[50] I have had the benefit of a Pre-Sentence Report and other material provided on behalf of Ms. Macynski. Those sources have provided me with the following information.

[51] Ms. Macynski is now 67 years old.

[52] She has positive memories of her childhood and maintained a close relationship with her parents until they passed away in 1992 and 1994.

[53] She advised that she continued to have a close relationship with all of her siblings, although she had more contact with her sister Jane Moerschfelder.

[54] Ms. Moerschfelder however noted that Ms. Macynski's relationship with their sister and one brother was strained as a result of the present offence. These siblings were having difficulty accepting Ms. Macynski's culpability as they feel stigmatized by other members of the community.

[55] Ms. Macynski had two children with her first partner. She then became involved with her husband of 30 years. He was the primary father figure to her children who are now 44 and 41 years of age.

[56] Her husband suffered from health issues relating to lack of blood circulation to his legs. As a result, his legs were amputated over a three year period. Ms. Macynski reported that she tended to his health concerns 24 hours per day for approximately 20 years. He died in March 2010.

[57] Ms. Macynski also indicated that she was financially burdened with her husband's expensive health related needs and that she began writing cheques on the Church account to supplement her income.

[58] Ms. Macynski currently resides with her daughter and her nine year old granddaughter in a rented duplex. They share the cost of the residence, although the daughter is receiving ODSP benefits.

[59] Ms. Macynski completed grade 11 in Caledonia. She last worked in 1996. She attributes her limited work history to the need for her to attend to her husband's health concerns.

[60] She is currently supported by CPP, OAS and her husband's pension. Her total income is $1,500 per month. She owes approximately $8,000 in debt and had $10 in her savings account as of the time of her interview for the Pre-Sentence Report.

[61] Her sister noted that Ms. Macynski has often demonstrated poor financial skills. Ms. Macynski has presented an attitude of entitlement, often seeking items that were beyond her means.

[62] Meredith Innes, a close friend of 10 years, confirmed that Ms. Macynski had financial difficulties and agreed that she would benefit from financial counselling. Ms. Innes opined that Ms. Macynski has been treated badly by the Church and that she should be allowed to return to practice her faith. She noted that some members would welcome her back while others would be opposed. She agreed that Ms. Macynski should face consequences for her actions.

[63] Both Ms. Innes and Ms. Moerschfelder indicated that although they feel that Ms. Macynski is apologetic for her actions, she may believe that her actions have been forgiven. They feel that she has yet to face the consequences.

[64] The Pre-Sentence Report states that Ms. Macynski demonstrated remorse for her actions and acknowledged wrongdoing and has demonstrated a willingness to accept the consequences for her actions.

Analysis

[65] There are positive things that can be said in favour of Ms. Macynski.

[66] She pled guilty. She has accepted responsibility for her offence and has expressed remorse.

[67] She had no criminal record.

[68] I am sure that she has been personally deterred by being apprehended and brought to court. She has good prospects for rehabilitation. In any event it is unlikely that she will ever again be trusted to the degree that made it possible for her to commit this offence.

[69] House arrest would be more onerous for her than for many offenders in that she is unemployed and would therefore have to spend even more time confined to her home.

[70] On the other hand, she committed a very serious offence.

[71] She stole money repeatedly over a period of four years.

[72] She stole that money from her Church, where the people trusted her to use that money for charitable purposes.

[73] She lied to those same people repeatedly throughout those four years, submitting monthly reports which were total fabrications of where funds had been spent.

[74] The impact on the Church has been devastating. Ms. Macynski should have been well aware that it would be.

[75] But she stole the money anyway. Why did she do this?

[76] She claims that she was financially burdened with her husband's expensive health related needs and that she began writing cheques on the Church account to supplement her income.

[77] She has however provided no details with respect to any of this much less any evidence to support her claim.

[78] Even after Crown counsel made this very point in his submissions, she still did not provide any details.

[79] Crown counsel also correctly pointed out that her husband died in March 2010 while the theft of money continued until 2012.

[80] Needless to say, Ms. Macynski's credibility is nonexistent in light of her lying and her stealing.

[81] Against this, I have the comments by her sister that Ms. Macynski has often demonstrated poor financial skills and has presented an attitude of entitlement. There is no evidence before me to prove this either but it does serve to contradict Ms. Macynski.

[82] The result of all this is that I reject the explanation given by Ms. Macynski and I am then left with no explanation at all as to why she committed this crime.

[83] I also question her assertion that she is prepared to accept the consequences. I am not sure that she is. She will certainly have to face those consequences but that will not be her choice. She did plead guilty, thereby exposing herself to the consequences, but the case against her was very solid and she really had little choice in that regard either.

[84] While there are indications that she could benefit from financial counselling, she has not undertaken any such counselling yet. That does not speak well for her dedication to rehabilitative measures.

[85] This is not a case in which the principle of restorative justice plays a significant role. I am well aware that restorative justice involves more than simple restitution but restitution is certainly a part of it. In this case there has been no restitution to date and it has been made clear that apart from $400 currently held in counsel's trust account, no restitution will likely be forthcoming in the future.

[86] For most people, $86,000 is a large amount of money. It was certainly a large amount of money for Grace United Church and would have allowed them to have funded a good number of worthy causes. The taking of that money constituted a major theft or fraud.

[87] I note as well that Grace United Church and its worthy causes were not the only victims in this case. I agree with the comments of Wilkie J. in R. v. Stoutley that crimes like this have a negative impact on charitable causes generally and "contribute to a sense of suspicion and cynicism about the utility of attempting to help the needy through any and all charitable organizations."

[88] Denunciation and general deterrence are the primary principles of sentencing that are applicable in this case. It is necessary to deliver a clear message to anyone who is thinking of committing a crime like this one that, we as a society will not tolerate that. Anyone who abuses a trust and steals money over an extended period of time can expect to go to jail.

[89] In the circumstances of this case, a conditional sentence is not consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code.

[90] I agree with Crown counsel that a sentence of imprisonment for between six and nine months would be appropriate.

[91] I also agree with the further comments of Wilkie J. in R. v. Stoutley, supra that:

Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.

[92] As a result, I will impose a sentence at the low end of the range.

[93] With respect to the conditions to be included in a probation order, Crown counsel submitted that I should include a term prohibiting Ms. Macynski from attending at Grace United Church.

[94] I disagree. It is not for me to decide whether to forgive Ms. Macynski. Neither is it for me to decide which faction within Grace United Church actually speaks for the Church. Both of those decisions should be made by the members of the congregation. If it is their decision to bar her from the Church, they already have the legal means to do so. However, while I will go so far as to encourage Ms. Macynski to not make this an issue for the members of the congregation, I will not prohibit her from attending at Grace United Church.

Sentence

[95] For all of the above reasons, I sentence Ms. Macynski to imprisonment for six months.

[96] That will be followed by probation for three years.

[97] The terms of the probation will require that Ms. Macynski:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of her release and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in her supervision;

5. cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;

6. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for financial counselling or such other programs as the probation officer directs;

7. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority with respect to financial matters unless she has notified her employer, in writing and in advance, of her criminal record.

[98] I am making a stand-alone restitution order in favour of Grace United Church in the amount of $86,234.

[99] I leave it to counsel for Ms. Macynski to apply the $400, which is being held in trust, against this.

[100] Ms. Macynski will have 90 days following her release to pay the victim fine surcharge, calculated at the old rate which was in effect at the time that she committed her offence.

Released: January 15, 2015

Signed: "Justice D.A. Harris"

Justice D.A. Harris