Court File and Parties

Ontario Court of Justice

Date: August 25, 2016

Court File No.: Halton 14-1329

Between:

Her Majesty the Queen

— and —

Cassandra Bruyns

Before: Justice D.A. Harris

Heard: June 16, 2016

Reasons for Sentence Released: August 25, 2016

Counsel:

• Arish Khoorshed, counsel for the Crown
• Scott Aird, counsel for the defendant Cassandra Bruyns

HARRIS J.:

Charges and Convictions

[1] Cassandra Bruyns was originally charged with three offences, all of which were alleged to have occurred in Oakville between November 30, 2013 and May 2, 2014. The first two charges alleged that, being entrusted with a Power of Attorney with respect to the Disposition of Personal Property of her father Leonard Schuller, she (1) stole money exceeding $5,000 contrary to section 334(b) of the Criminal Code and (2) defrauded him of money exceeding $5,000 contrary to section 380(1)(b). The third charge alleged that, being the trustee of money for his benefit, she did convert money to a use not authorized by the trust, contrary to section 336. All of these were indictable offences.

[2] Following trial, I found Ms. Bruyns not guilty of theft over $5,000, but guilty of theft under $5,000 contrary to section 334(b) of the Criminal Code. Further, I found her not guilty of fraud over $5,000, but guilty of fraud under $5,000 contrary to section 380(1)(b) of the Criminal Code. Finally, I found her guilty of criminal breach of trust.[1]

[3] At the request of Crown counsel, I entered conditional stays with respect to the theft and breach of trust offences.[2]

[4] Ms. Bruyns is before me today to be sentenced.

Sentencing Submissions

[5] Crown counsel suggested that I should sentence her to a conditional sentence of imprisonment for six months.

[6] Counsel for Ms. Bruyns suggested that I impose a conditional discharge.

[7] I find that a suspended sentence with probation for 18 months is the appropriate sentence here.

[8] My reasons for this are set out as follows. I will first review the law regarding conditional discharges, conditional sentences of imprisonment and the fundamental purpose and principles of sentencing. I will then address the facts underlying the offence, the impact on any victims and the background of Ms. Bruyns. I will conclude with an analysis of all of those factors.

CONDITIONAL DISCHARGE

[9] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[10] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life.[3] So I can grant Ms. Bruyns a conditional discharge if I consider it to be in her best interests and not contrary to the public interest.

[11] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

1. Discharges are not limited to technical or trivial violations;

2. Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and

3. While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.[4]

CONDITIONAL SENTENCE OF IMPRISONMENT

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

[13] 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."[5]

[14] 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.[6]

[15] 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.

[16] 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.

[17] In Ms. Bruyns' case, the first four prerequisite criteria have been satisfied.

[18] Her offence was not excluded pursuant to section 742.1.[7]

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

[20] Crown counsel asked that I impose a conditional sentence of imprisonment for much less than two years.

[21] Finally, I find that Ms. Bruyns 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 not been in any further trouble since being charged. 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.

[22] 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

[23] 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.

[24] 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.[8]

[25] 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.[9]

[26] 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.[10]

[27] 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.[11]

[28] 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.[12]

[29] 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.[13]

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

[31] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[32] I note that numerous decisions of the Ontario Court of Appeal preceding the enactment of this section of the Code had already stated that a judge must at least consider imprisonment when sentencing someone for a breach of trust.[14] I note further though that there were still many non-custodial sentences and even conditional discharges imposed for such offences.[15]

[33] 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".

[34] 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."

[35] 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.[16]

[36] 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.[17] 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.[18]

THE OFFENCE

[37] Ms. Bruyns' father lived in a long term care facility. Ms. Bruyns was appointed by her father as Power of Attorney for the disposition of her father's personal property.

[38] Between November 30, 2014 and May 2, 2015, Ms. Bruyns diverted $4,000 of her father's money to her own use. She viewed this money as a loan which she intended to repay when a temporary cash-flow problem was resolved.

VICTIM IMPACT

[39] It was the long term care facility that bore the loss here initially. Since the money was not available, the facility was unable to obtain the money from the bank account. However, Ms. Bruyns' father did not suffer any lower standard of care and he is not in arrears with the facility.

[40] This does not absolve Ms. Bruyns in any way. She took her father's money and put her father at risk financially. It is not a mitigating factor that the facility chose not to punish the father for the sins of the daughter.

[41] Ms. Bruyns has since repaid the entire amount that was taken.

BACKGROUND OF MS. BRUYNS

[42] I received a Pre-Sentence Report, several reference letters and a psychological assessment which provided me with the following information.

[43] Ms. Bruyns is now 69 years of age.

[44] She was born and raised in South Africa with her parents and eight siblings. She was there as a "coloured" person during apartheid years. Accordingly she was subject to discrimination and outright racism as she was growing up. She was even ostracized to a degree within her family as a result of having darker coloured skin than her siblings.

[45] She completed high school in South Africa but was unable to go on to college because of her racial status.

[46] She came to Canada in 1970 at 21 years of age.

[47] She was married for 12 years. The relationship was abusive and involved police intervention. She and her husband had two children which Ms. Bruyns raised as a single mother. The children have grown to become a 45 year old animator and a 42 year old college instructor in early childhood education.

[48] In 1981, Ms. Bruyns earned her real estate licence and she has been active in the field ever since. She is described as being hard working and very successful in that endeavour.

[49] In addition to raising her children she has cared for numerous other family members over the years. These include her mother, her father, a sibling and several grandchildren. Her mother died of cancer in April 2001. Ms. Bruyns was her mother's caregiver while she was being treated for her cancer. After her mother's death, her father came to live with her. She was his primary caregiver up until the point where he entered the long-term care facility. She then saw him on a daily basis and still continues to visit him daily. She was, and is, the Power of Attorney with respect to the Disposition of Personal Property of her father.

[50] Reference letters written on her behalf came from her daughter, a friend, a sister and her employer. They all speak highly of Ms. Bruyns referring to her strong work ethic and her dedication to caring for others. I am concerned by the fact that these letters also indicate that the writers, like Ms. Bruyns, believe that she did nothing wrong and that it was the fault of the long-term care facility and of certain siblings that Ms. Bruyns was even charged.

[51] Other letters written before she was found guilty are even more problematic in that regard.

[52] The psychological assessment provided to me concluded with the following:

Ms. Bruyns' presentation in interview was consistent with an individual having very strong verbal skills and good memory but she appeared to have difficulty organizing her thoughts and presenting a consistent narrative. This would not be inconsistent with a decline in high level executive functioning.

Based upon Ms. Bruyns' testing, I do not see evidence of a significant mood or anxiety disorder. Personality traits are consistent with Ms. Bruyns' reported history in terms of her successful career in real estate, her assertiveness and efforts to overcome racial and gender bias and resilience in the face of stress.

I see no indication of psychopathy but as noted above, do have concerns about a potential decline in higher level cognitive functioning in the presence of extremely strong verbal abilities.

ANALYSIS

[53] In reaching my decision, I must consider both the mitigating factors and the aggravating factors present in this case.

[54] The aggravating factor is that she treated her father's money, which was entrusted to her on a fiduciary basis, as if it were her own. She used it to pay down her most pressing debts and in the process put him at risk of being denied the same level of services which he had been receiving at the long term care facility.

[55] There are some mitigating factors.

[56] She has no prior criminal record. She is a hardworking, both with respect to her employment and her caring for members of her family. She has been otherwise dedicated to caring for her father. She was well respected as a result.

[57] The amount of mitigation that can be derived from these facts is diminished however when one considers the fact that it was these very qualities which led to her being in a position to breach that fiduciary trust.

[58] She has paid the money back in full. That too falls flat when one considers that the potential harm in this case was the possible reduction in services that might have occurred. This is not a simple case of taking money with no further consequences.

[59] Ms. Bruyns will likely face some consequences with the real estate board in connection with her pending renewal of her real estate broker's licence. Counsel was unable to say with certainty what effect various sentences would have with the board. He did indicate that, logically, the decision of the board will reflect the severity of the sentence imposed here.

[60] I note that Ms. Bruyns' reputation in the community has not suffered as much as one might expect in such cases. Many of those closest to her also believe that she did nothing wrong.

[61] She is entitled to no mitigation for remorse. She feels none. She did nothing wrong. Her children and her sister (and co-Power of Attorney), believe that she did nothing wrong. She blames the nursing home and her other siblings for the police involvement. Her lawyer should have presented more evidence regarding the dysfunction of her family and their failure to assist financially, and focusing the blame towards the nursing home and their service to their parents.

[62] Her attitude is further undermined by the fact that it was the forbearance of that nursing home that prevented a reduction in services to her father, rather than anything that she did.

[63] All of this cannot be undone by her counsel informing me that she accepts that she has been found guilty but feels morally and emotionally innocent.

[64] I am mindful that an absence of mitigation does not amount to the presence of an aggravating factor. However, an absence of mitigation may dissuade me from giving Ms. Bruyns a significant break from the sentence that I find to be otherwise appropriate.

[65] That is certainly true here and I am not satisfied that a conditional discharge would not be contrary to the public interest in the circumstances of this case.

[66] In reaching that decision, there is one factor that I did not take into account. Crown counsel argued that it would be inappropriate in principle to grant a conditional discharge because the offence of criminal breach of trust which was conditionally stayed following a finding of guilt, would not have qualified for the imposition of a conditional discharge. While I understand the possible merit in his argument, I did not apply it here, noting that the breach of trust charge would not have qualified for a conditional sentence (the sentence recommended by Crown counsel) either.

[67] That then leads me to the fact that I am also not satisfied that a conditional sentence of imprisonment is appropriate here. I find instead that a suspended sentence is the least restrictive disposition that is consistent with the purpose and principles of sentencing.

SENTENCE

[68] For all of the above reasons, sentence is suspended and Ms. Bruyns is placed on probation for 18 months.

[69] The terms of the probation will require that Ms. Bruyns:

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 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. not act as Power of Attorney with respect to the Disposition of Personal Property of her father Leonard Schuller;

7. not have any interest in or signing authority over any bank account in which money belonging to Leonard Schuller has been deposited.

[70] Ms. Bruyns will have 90 days to pay the victim fine surcharge.

Released: August 25, 2016

Signed: "Justice D.A. Harris"