Between
Her Majesty the Queen
D. Mitchell for the Crown
— AND —
Erica Atta
A. Herman and M. Herman for the defendant
Reasons for Sentence
Justice T. Lipson
[1] Erica Atta pleaded guilty to three charges of fraud over $5,000 and a charge of unauthorized use of credit card. She was employed as a cashier at a Shopper's Drug Mart store since 2010. Ms. Atta admitted that between March and August 2013 she defrauded her employer of $110,484.28 U.S.
[2] A detailed summary of the facts were read into the record at the time of Ms. Atta's guilty pleas. In summary the accused facilitated a number of fraudulent transactions for friends who posed as regular customers using American Express credit cards. Ms. Atta was not only aware of but also exploited a flaw in her company's security system that was supposed to guard against fraudulent transactions.
[3] A victim impact statement was admitted into evidence. Mr. J. Combow, Ms. Atta's employer, wrote that as a result of the store's loss from this fraud, his franchise agreement was not renewed. He had been operating the store for ten years and was now depressed and questioning his abilities as a pharmacist and businessman. Mr. Combow indicated that in addition to the amount of the fraud, he also lost his store and a substantial yearly income. In 2012 he earned $212,000.00.
[4] Ms. Atta is a 23 year old first offender born in Ghana. She came to Canada in 2008. Ms. Atta's immigration status is that of permanent resident. That status is due to expire in five years. Since coming to Canada the accused lived with her mother until 2014. She left home after a disagreement with her mother over a proposed arranged marriage and is now renting an apartment which she shares with a friend. Ms. Atta is currently registered with a placement agency. In 2013 she enrolled in a two year social work program at a college in Orillia but dropped out in the second year following her arrest on these charges. She hopes to resume her studies at a local college once these charges are resolved.
[5] The Pre-Sentence Report is positive. Ms. Atta had been a good student who had led a quiet and law abiding lifestyle. People familiar with the accused were very surprised to learn of her legal predicament. They report that she is deeply embarrassed by and ashamed of her conduct. Some attribute the crime to her naiveté and that she did not realize the gravity or give sufficient thought to the potential consequences of her actions.
[6] Ms. Atta told the PSR author that her criminal behaviour is not a reflection of who she really is and that she is very sorry. She indicated that she is willing to make whatever restitution of the monies owing. She maintained that she received about $2,000 of the illegally obtained proceeds and used the money to buy school books.
[7] The Crown seeks a sentence of 18-24 months to be followed by three years of probation as well as a free-standing restitution order and a DNA order. Defence counsel submits that in the particular circumstances of this case a suspended sentence or intermittent sentence would be appropriate.
Aggravating and Mitigating Factors
[8] There are several aggravating factors present in this case. This was a serious breach of trust offence which took place over approximately six months. Ms. Atta participated in over 50 individual fraudulent transactions. She was motivated by greed. The amount involved in this fraud was in excess of $100,000 and there has been no restitution. The impact of the fraud upon her employer has been devastating.
[9] By way of mitigation, the accused is a relatively youthful 23 year-old first offender. She has entered guilty pleas and I am satisfied that she is genuinely remorseful for her conduct. I am also satisfied that she was influenced by her then boyfriend and others to participate in the fraud. Of course, it must be acknowledged that without her participation as a cashier, the fraud could not and would not have been committed.
Sentencing Principles
[10] The case law is clear that the paramount sentencing objectives in a breach of trust case such as this are denunciation and deterrence, both specific and general. Save exceptional circumstances, the expected sentence for this kind of fraud would be a significant jail sentence.
Immigration Consequences
[11] A central issue in this sentencing is the impact of potential immigration consequences for Ms. Atta should she receive a jail term in excess of six months. As mentioned earlier in these reasons, Ms. Atta is a permanent resident of Canada. Pursuant to section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA) a permanent resident is inadmissible on grounds of "serious criminality". Ms. Atta's crimes qualify as "serious criminality" under the Act because she has been convicted of fraud, an offence punishable by a maximum of 14 years and unauthorized use of a credit card which is punishable by a maximum of 10 years. As well, if sentenced to a term of more than six months, Ms. Atta will meet the definition of "serious criminality".
[12] The potential immigration consequences for someone in Ms. Atta's position were succinctly set out in the recent case of R. v. Nassri, 2015 ONCA 316:
As a result of his conviction for robbery, the appellant is "inadmissible on grounds of serious criminality": Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), s. 36(1)(a). The definition of "serious criminality" includes having been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years.
The appellant's inadmissibility makes him vulnerable to a removal order leading to deportation. A permanent resident may appeal a removal order to the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board. The IAD can stay a removal order if it is satisfied that "sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case": IRPA, s. 68(1). But, no appeal to the IAD may be made by a permanent resident if he or she has been found to be inadmissible on grounds of "serious criminality": IRPA, s. 64(1).
One month before the sentence was imposed, Bill C-43, the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, came into force and amended s. 64(2) of the IRPA. As a result of the amendment, the definition of "serious criminality" for the purpose of s. 64(2) changed from "a crime that was punished in Canada by a term of imprisonment of at least two years" to "a crime that was punished in Canada by a term of imprisonment of at least six months" (emphasis added).
[13] Put simply, if Ms. Atta receives a custodial sentence of six months or more, Ms. Atta would be prevented from appealing a removal order to the IAD for consideration.
[14] The issue therefore comes down to this: is a sentence just under six months within the realm of reasonable sentences for this offence and this offender?
Collateral Consequences and Sentencing Discretion
[15] It goes without saying that any sentence must be fit having regard to the crime and the offender. In R. v. Pham, 2013 SCC 15 Justice Wagner cautioned at para. 15:
The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.
[16] In Pham the court instructed sentencing judges should therefore determine whether the sentence that avoids the collateral consequences is even a possibility. At para. 14 Justice Wagner said:
[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[17] All of the charges arise out the same continuing transaction and should be concurrent to one another.
Sentencing Decision
[18] Ms. Atta committed a serious breach of trust fraud for which a period of incarceration is required. Upon consideration of the mitigating factors and, in particular the potential immigration collateral consequences, I am satisfied that a custodial sentence just under six months is within the appropriate range for this offence and this offender. Ms. Atta is a relatively youthful first offender who pleaded guilty and is genuinely remorseful. I tend to believe that she was influenced by others to commit the crime and her share of the proceeds of crime was not great. She is making efforts to rehabilitate herself. While denunciation and deterrence are the paramount sentencing objectives in this case, rehabilitation and reparation for harm done to the community are also important. Ms. Atta faces the very real prospect of a removal order being issued against her. If she receives a sentence of six months or more, she would lose the opportunity to appeal such an order to the IAD for consideration of the humanitarian and compassionate grounds of her case. That, in my view, would constitute an unnecessarily disproportionate collateral consequence of sentencing.
[19] In the result, Ms. Atta will be sentenced to 5½ months to be followed by three years of probation. The custodial sentence is such that the sentencing goals of deterrence and denunciation are addressed and is at the low end of the appropriate range. The probationary term period will emphasize rehabilitation and reparation to the community for the harm done by Ms. Atta.
Terms of Probation
[20] The terms of probation in addition to the mandatory conditions are as follows:
Report to a probation officer within 72 hours of release and thereafter as required.
Reside at an address approved by your probation officer.
Not enter any Shopper's Drug outlet in Ontario.
Not to possess any financial documents or credit cards not in your own name.
Take such counselling as may be directed by your probation officer and sign any necessary releases.
Perform 100 hours of community service to be completed within 24 months of the making of this order and provide written proof of completion of community service to your probation officer.
Additional Orders
[21] There will be a DNA order and also a free standing restitution order in the amount of $110,484.28 U.S.
Released: January 19, 2016
Justice T. Lipson