Information and Parties

Information No.: 14-688-00

Ontario Court of Justice

Her Majesty the Queen v. Susan Y. Mowat

Reasons for Sentence

Before the Honourable Justice D. Harris

on November 17, 2015, at Milton, Ontario

Appearances

H. Apel – Counsel for the Crown

M. Peck – Counsel for Susan Mowat

Transcript Information

Transcript Ordered: November 24, 2015

Transcript Completed: January 5, 2016

Ordering Party Notified: January 5, 2016

Reasons for Sentence

HARRIS, J. (Orally):

Susan Mowat has entered a guilty plea to a charge of theft under section 322 of the Criminal Code. The details of the charge are that being entrusted with the power of attorney with respect to the disposition of personal property, she did steal money, the property of Eileen Areys.

Eileen Areys is 83 years of age. She is a widow. She suffers from dementia. In July of 2010 she was admitted to the Burloak Long Term Care facility on New Street in Burlington.

Back in 2010, Ms. Mowat was appointed as power of attorney for her, for both personal care and property. As is often the case in situations like this, there was a bank account established for Ms. Areys. She received certain pension money that was deposited directly into that account. Ms. Mowat made arrangements to sign the necessary documents so that the fees payable to the long term care facility would be paid automatically on a monthly basis from that account.

When it became impossible for the facility to collect those funds, an investigation took place and it was determined that Ms. Mowat had misappropriated money from her mother's account for her own use. The agreement is that over a period of time this amounted to $14,200.

I have a joint submission before me for a conditional sentence of imprisonment. I intend to give effect to the joint submission. I will point out a few things before I do that, however.

This matter is one that involves a breach of trust. The provisions of the Criminal Code specifically indicate that this is an aggravating circumstance in sentencing. I have pointed out on numerous occasions, and I will repeat it here, I do not need the Criminal Code to tell me that this is an aggravating circumstance. Common sense tells me that. The Ontario Court of Appeal has been telling me this for years. But, I will stick to common sense for a moment.

Parents are supposed to look out for the interest of their children and protect them. Then we reach a stage in life where those roles get reversed. When the parent becomes incapable of caring for himself or herself it becomes the responsibility of the child to protect the parent. It becomes a particularly egregious act then, when instead of protecting the parent the child becomes the person who victimizes the parent.

It certainly would not have been unusual for the Crown to have asked for a period of incarceration in circumstances like this. In this case they have chosen not to. They are clearly taking into account the fact that Ms. Mowat is 55 years of age. She has managed to get through 50 years of life, without having committed any offences. There is no indication that she has committed any offences other than this particular one.

I have been provided with a number of reference letters that suggest this act is "out of character", that otherwise, Ms. Mowat is a "fine upstanding and trustworthy individual". I will note as has been noted by Justices of the Court of Appeal that this is not unusual in cases like this. It is only people who are fine upstanding citizens who have the chance to breach a trust in the first place. So that is a circumstance that actually cuts both ways.

The courts have made it clear that denunciation and deterrence, both on a general and on a specific basis, are the primary considerations for sentencing here. I cannot lose sight of the principle of rehabilitation however I also cannot lose sight of the principle of restorative justice. I also cannot lose sight of the fact that the Supreme Court of Canada has said that a conditional sentence of imprisonment can act as a denunciatory sentence or as a deterrent.

So, in all the circumstances here I am accepting the joint submission. Ms. Mowat you will be sentenced to a conditional sentence of imprisonment for one year to be served in the community. That will be followed by probation for a period of three years.

Conditional Sentence Terms

Now, with respect to the conditional sentence of imprisonment, the terms will be that:

• You will keep the peace and be of good behaviour;

• You will appear before the court when required to do so by the court;

• You will report immediately, in person, to a supervisor, and thereafter report when required by the supervisor and in the manner directed by the supervisor;

• You will notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation; and

• You will remain within the Province of Ontario, unless written permission to go outside the Province is obtained from the court or the supervisor.

Additional Conditions

Under the additional conditions, with respect to the reporting: you will co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request.

You will live at 4 Grant Boulevard apartment 6, Dundas, Ontario L9H 4L4, or a place approved of by the supervisor, and not change that address without obtaining the consent of the supervisor in advance.

Home Confinement

There will be a home confinement condition. This home confinement condition will be in effect for the first six months of the sentence. You will remain in your residence at all times except:

• Between 2:00 p.m. and 8:00 p.m. on Tuesdays in order to acquire the necessities of life and to visit your mother, Eileen Areys;

• For any medical emergencies, involving you, or your mother or your son;

• For going directly to and from or being at school, employment, court attendances, religious services and legal, or medical or dental appointments;

• You will confirm your schedule in advance with the supervisor setting out the times for these activities, or;

• With the prior written approval of the supervisor. The written approval is to be carried with you during these times.

During your period of home confinement you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

Restitution (Conditional Sentence)

You will make restitution of $3,300 to the Office of the Public Guardian and Trustee. To be paid in installments of, not less than, $275 per month payable on or before the 15th day of each month commencing December 15, 2015. If you are unable to make any restitution payment for any reason, you must tell the supervisor in advance. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the above named party. The payments should be paid in full on or before November 15, 2016.

Probation Terms

The terms of the probation. I am going to point something out, some of these terms are going to sound very similar to what you just heard. The big change is going to be you will no longer hear the word "supervisor". You will start hearing the word "probation officer". I anticipate that your supervisor and your probation officer will be one in the same person. You are going to get to know somebody well for the next four years. It may be possible that it is somebody else, but it is likely going to be the same person throughout.

With respect to the probation, you will be subject to the statutory terms that require you to keep the peace and be of good behaviour; appear before the court when required to do so by the court or the probation officer; 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.

You will be reporting. You will report in person to a probation officer within two working days of completing your conditional sentence of imprisonment, 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 your supervision.

You will co-operate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.

Restitution (Probation)

You will make restitution of $9,900 to the Office of the Public Guardian and Trustee. To be paid in installments of not less than $275 per month; payable on the 15th day of each month commencing on the 15th day of December 2016 and to be paid in full on or before the 15th day of November 2019. If you are unable to make any restitution payment for any reason you must tell the probation officer in advance. All restitution payments are to be made by cash, or certified cheque, or money order payable to the Minister of Finance through any criminal court office for payment to the above named party.

Confirmation of Terms

THE COURT: Have I got all the terms that were anticipated counsel?

MR. APEL: Yes, Your Honour, thank you.

MS. PECK: Yes, thank you.

THE COURT: Ms. Mowat, do you understand the terms of the conditional sentence and the probation?

SUSAN MOWAT: Yes.

THE COURT: Can you live up to them?

SUSAN MOWAT: Yes.

THE COURT: Do you understand that if you breach the terms of either order you can be charged with an offence?

SUSAN MOWAT: Yes.

Important Distinction Between Conditional Sentence and Probation

THE COURT: Now, I am going to point something out to you. I expect your counsel has been through something like this, but maybe not quite exactly what I am about to tell you. In a lot of ways a conditional sentence and probation seem similar. There are many people in the community who think that there is really no difference between the two of them. The Supreme Court of Canada has made it clear that those people are wrong. First of all, probation, according to the Supreme Court of Canada, is not punishment. Probation is for rehabilitative purposes. The big difference with a conditional sentence of imprisonment is that a conditional sentence of imprisonment can be viewed as, and is intended to be punishment. The difference between the two types of orders is not so much in the terms that are imposed on you, but the process that comes into being if there is a breach.

If you are accused of breaching the conditional sentence order you will find that the process is much simpler for the police. They do not have to go through quite the same administrative steps that they do to charge you. Once you are charged there is no need to prove guilt beyond a reasonable doubt. The proof need only be on a balance of probabilities. In addition, the Supreme Court of Canada has indicated that while you can be taken before any judge to deal with a breach of a conditional sentence, the recommendation is that you be brought back before the sentencing judge. In other words, the recommendation is that you would come back to me. And I can assure you I know the next thing that the Supreme Court of Canada said, which is that there are many different penalties available for a breach of a conditional sentence order, but the one they recommend that a sentencing judge look at first is simply converting the rest of the sentence to jail. Okay, just keep that in mind.

I point it out to you because right now you are going to walk out the door and I expect that you are going to be feeling a certain amount of relief that you're walking out the door and you are not going to jail. You are going to be accepting, like so many people in the community, that the sentence is not that bad. But I suspect maybe three, four, six weeks down the road you are going to find that house arrest really does mean something. Those walls start to close in when you are being required to stay within them. And at that point the thought is going to start going through your head, "I really would like to get some fresh air and I need to pick up some milk. Surely, His Honour did not mean that I cannot just step out, run down the street to the convenience store, buy a container of milk and come back here". But, I am warning you right now that I mean exactly that. House arrest is house arrest. You are confined to your residence except for the specific purposes that are set out there, and failure to abide by that constitutes a breach. Do you understand?

SUSAN MOWAT: Yes.

THE COURT: Okay. I will give you 90 days to pay the surcharge.

Released: November 17, 2015 Justice D. Harris