Court File and Parties

Ontario Court of Justice

Date: 2016-01-08

Court File No.: Kitchener 14-4673

Between:

Her Majesty the Queen

— and —

Mariola Margaret Hall

Before: Justice G. F. Hearn

Heard on: October 7, 2015 and November 23, 2015

Reasons for Sentence released on: January 8, 2016

Counsel:

• A. Sethi, for the Crown
• S. Gehl, for the defendant Mariola Margaret Hall

HEARN J.:

BACKGROUND

[1] Mariola Hall entered pleas of guilty to counts of fraud over $5,000 and uttering a forged document on October 7, 2015. The time period during which the events occurred leading to the charges is from September 5, 2013 to June 25, 2014. The Crown has proceeded by indictment on both counts. Facts were read in and an Agreed Statement of Facts is filed as Exhibit #2. Submissions were made by counsel and the matter was then adjourned to November 23, 2015 in order that a pre-sentence report as well as a victim impact statement could be completed.

[2] On November 23, 2015 the court had an opportunity to hear read victim impact statements from both Michelle Weigel, the owner and operator of Weigel Property Management, as well as Bev Gooden, an employee of that company.

[3] Following submissions and evidence on sentencing the matter was adjourned to today's date for sentence.

CIRCUMSTANCES OF THE OFFENCE

[4] As noted, there is an Agreed Statement of Facts that has been filed which sets out the details of the counts before the court. In addition, documentation has been filed tracing the fraudulent activities of the accused during the course of her employment as a bookkeeper for Weigel Property Management, which ultimately led to defrauding the company and the various condominium corporations set out in the counts in the information, of approximately $340,000.

[5] The accused worked as a bookkeeper for Weigel Property Management for some two years. In June of 2014 Michelle Weigel, the main principal of that company, noticed an irregularity in one of the company's bank accounts and as a result she looked further into that account and noted several irregular transactions.

[6] This particular account was the corporate account and the only other person that had access to the account was the accused. When Ms. Weigel approached the accused, the accused indicated that she was helping somebody by taking the money. She thought she would be repaid and she then in turn would reimburse the company.

[7] Michelle Weigel checked with the bank involved and learned at that time that the loss was estimated to be approximately $100,000. On June 25, 2014, the same day this was discovered, the accused was arrested and charged with theft over $5,000.

[8] When Ms. Weigel was interviewed by the police she advised there were numerous e-transfers from the corporate account to the accused's personal account. At that point Ms. Weigel froze her own accounts as well as the corporate account and advised the police that she would provide a copy of the work computer that Ms. Hall had been using as well as documents from the bank outlining the irregular transactions.

[9] When Ms. Hall was interviewed by the police she provided details of a "relationship" she had with an individual whom she had met in July of 2013. Ms. Hall indicated during the course of her statement that three days after she met this individual that individual left for Mexico but the two had kept in touch. That individual had advised Ms. Hall he had been robbed, had no money and, as a result, Ms. Hall sent this individual money through Western Union transactions.

[10] Over the course of the next few months the accused ran up her own credit cards, took out lines of credit and exhausted her own resources to send money to this individual. In October of 2013 the accused effectively ran out of money and then began e-transferring money from the Weigel Property Management account to her personal account and sending the money on to this person to assist him in getting out of "various perils". At the time Ms. Hall believed she had transferred over $100,000 in 50 to 60 transactions.

[11] A production order was obtained with respect to Ms. Hall's bank accounts and a forensic audit was undertaken with respect to the various condominium corporations whose properties the company had managed.

[12] Included in the documentation were copies of forged cheques with Ms. Michelle Weigel's forged signature. The documentation demonstrated that the accused was depositing money from the Weigel Property Management clients' accounts into the rental pool account and then forging cheques using the wrong accounting software and signing Ms. Weigel's name. She would then deposit the cheques and apparently forward the money to this individual that she had met.

[13] The company provided bank records for nine different condominium corporations that all had cheques written to the rental pool account. Ms. Hall had covered her tracks somewhat while employed by falsifying bank reconciliation statements for each individual condominium corporation.

[14] Ultimately, the fraud was extensive and the losses have been agreed to be approximately $340,000. Some of this loss was covered by insurance but Ms. Weigel herself is out of pocket personally some $31,960.42, being the shortfall between the insured funds and the losses to the various condominium corporations. As well, she has spent almost $20,000 to retain the services of an accountant to provide an analysis with respect to the various transactions illegally performed by Ms. Hall. Copies of the various documentation in that regard have been filed.

[15] When the facts were read in counsel for Ms. Hall advised, and the Crown really takes no dispute with the fact, that Ms. Hall, who was a single mother at the time met this male individual referred to on-line. Their "relationship" commenced in the summer of 2013 and there were electronic communications for approximately a month and a half and thereafter. Quite surprisingly, they only met once in person, in a bar as counsel noted, for approximately two hours. During that period of time this individual convinced Ms. Hall that he wished to have a relationship with her and was looking for a lifetime commitment.

[16] Almost immediately after this introduction this person ended up in various countries including Mexico, the Middle East and England, but contact was maintained with Ms. Hall and a variety of requests were made for funds to be forwarded for an equally large variety of reasons. All of these calls were made in settings that were very convincing to Ms. Hall and all the monies that were forwarded were promised to be repaid to Ms. Hall once alleged sources of significant funds became available to this individual.

[17] The Crown agreed that, at least with respect to two of the locations where the money apparently was forwarded by Ms. Hall, there is confirmation of her version of the events. Those amounts total about $212,000 and it is Ms. Hall's position that all of the monies that she defrauded from the company were in fact sent to this individual in similar circumstances. The Crown does agree that throughout the investigation there is absolutely nothing to indicate that Ms. Hall benefited herself financially from the fraud by way of accumulation of assets or living an extravagant lifestyle. In fact, Ms. Hall, as noted, exhausted her own funds before resorting to the criminal activity before the court.

[18] Unfortunately, any further investigation involving the person who allegedly was the recipient of these funds has proved fruitless.

VICTIM IMPACT STATEMENTS

[19] Victim impact statements have been filed from both Michelle Weigel and Bev Gooden, an employee of Weigel Property Management. In addition to the statements having been filed, both victims read their statements to the court.

[20] The statements are eloquent and compelling and speak of the financial as well as emotional impact the activities of Ms. Hall have had on them and on Weigel Property Management. Michelle Weigel read her statement and directed her attention while doing so, on a number of occasions, to Ms. Hall. In that statement she advises she considered the accused a friend who was part of a small workforce at Weigel Property Management. The financial loss to the company has had a devastating effect on its reputation within the community, their business has been impacted and the business has lost some credibility in the property management realm. Ms. Weigel estimates that due to the activities of Ms. Hall the company's business has declined resulting in losses of over $8,000 a month. In addition, Michelle Weigel had to pay any shortfall from the insurance policies in place to the various corporations from her own pocket.

[21] She estimates that Weigel Property Management has lost over $150,000 in business and incurred costs of over $30,000 to pay out the shortfall in insurance coverage as well as some $20,000 in accounting costs to track the loss.

[22] She states that as the business is a small business it will likely take years for a full recovery to be made. In closing she states:

"The incredulous nature of this crime is very hard to comprehend. A number of fraudulent transactions took place the day of our company Christmas party. I let everyone go home early to get ready and be relaxed for the festivities to follow. What did Mary do...use the time to steal more money from me."

[23] In addition, there is a victim impact statement from Bev Gooden who has been employed by Weigel Property Management for some ten years in various roles. Her statement speaks of the betrayal of the friendship she thought she had with the accused who was her co-worker. She speaks of the emotional impact, feelings of anger, self-doubt, anxiety, victimization and depression. She also speaks of her loss of job security given the tenuous position that the loss has placed her employer in financially.

[24] She saw her employment as secure, now she is uncertain. She is 63 years of age, approaching retirement without the certainty of employment income and that is a concern to her.

[25] Also filed is what has been referred to as a Statement of Restitution that was completed by Michelle Weigel. In that statement she sets out her personal losses and the costs that she has had to pay for accounting as a result of the investigation of the fraudulent transactions. The total cost to Ms. Weigel has been approximately $52,000 personally and she asks for restitution in that amount.

CIRCUMSTANCES OF THE OFFENDER

[26] There is a pre-sentence report before the court setting out the background of Ms. Hall. In addition, counsel has provided details of the personal and work history of Ms. Hall.

[27] The accused is 50 years of age and is the mother of an 11 year old child with whom she shares joint custody with the father of the child. It is my understanding that custodial arrangement with the father involves time being spent with the child by both Ms. Hall and the father.

[28] The pre-sentence report sets out that Ms. Hall's son is unaware of the matters before the court as Ms. Hall has chosen not to tell him as a result of her concern for her son whom she describes as "extremely sensitive". She has chosen not to tell him at this point as she has no wish to upset the child. It would appear from the pre-sentence report she has also not told other members of her family, including her mother with whom she resides.

[29] Ms. Hall was involved in a nine year common-law relationship which resulted in the birth of her child. She and her partner have been separated since 2009, but apparently are still able to communicate with respect to the child.

[30] Ms. Hall's counsel describes the circumstances of his client at the time of the commission of the offences before court. He describes her as a middle-aged woman who sought companionship in on-line dating services and was effectively "preyed upon" by a male introduced during on-line dialogue. Details of the circumstances were explained and involve requests for money from this individual, which requests were complied with by Ms. Hall. The requests resulted in exhaustion of her own resources as well as the monies that were defrauded from her employer.

[31] All of this conduct was perpetuated long after it should have ceased or ever initiated by what Ms. Hall's counsel described as "veiled threats as well as ongoing promises of fidelity, love, happiness and things of that nature".

[32] Ms. Hall addressed the court and I am satisfied she regrets very much her actions and is remorseful. Ms. Hall has a minor criminal record which is dated with the last entry being for theft under in 1996 for which she received and successfully completed a period of probation. She has no issues with respect to either drugs or alcohol. She has a high school education as well as some college courses.

[33] Her employment history was rather continuous until the events before the court. She had in fact worked as a bookkeeper in various companies for many years, however since the charges she has been unemployed and was in receipt of Ontario Works. Now, most recently, she has found employment as evidenced by the letter filed this morning.

[34] She expressed regret for her conduct to the probation officer, acknowledging that there was "no excuse" for her conduct. Ms. Hall indicated to the author of the pre-sentence report that she found herself in a relationship in which she became so immersed that she was not making rational decisions. She understands the seriousness of her conduct and the impact it has had on her former employer.

[35] She suffers from some emotional and mental health issues and is currently receiving medication for anxiety and depression.

POSITION OF THE PARTIES

[36] The Crown stresses the significant amount of money which is the subject of the fraud perpetrated by Ms. Hall and the breach of trust involved. The Crown submits that an appropriate sentence is a period of imprisonment in the range of 18 months in a traditional setting. The Crown submits that general deterrence and denunciation, as well as the statutorily aggravating feature of the breach of trust, are matters to be considered by the court given the magnitude and the duration of the fraud. The Crown also requests restitution for the amount paid out of pocket by Michelle Weigel to top up the insurance monies, as well as reimbursement for the monies that Michelle Weigel has spent to have a forensic accounting completed.

[37] Defence acknowledges the aggravating features but stresses the mitigating factors and advocates for a blended sentence. Defence submits that on the forgery charge where a conditional sentence might still be available a conditional sentence of two years less a day together with a period of probation to follow would be appropriate coupled with a traditional 90-day period of imprisonment on the charge of fraud where a conditional sentence is statute barred. Defence counsel submits that such a sentence would address all appropriate principles of sentencing in this matter. Defence counsel does not oppose the order for restitution to Michelle Weigel for the amount of the shortfall on the insurance monies but does oppose the amount requested for accounting costs, stating that such an amount is not properly the subject matter of a restitution order.

PRINCIPLES OF SENTENCING TO BE APPLIED AND RELEVANT CASE LAW

[38] In Regina v. Hamilton, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at para. 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. ... The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[39] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. See Regina v. Wright, para. 16, a decision of the Court of Appeal, and further, Regina v. D. (D.), 163 C.C.C. (3d) 471 at para. 33, a further decision of the Ontario Court of Appeal.

[40] The principles of sentencing are set out in s. 718 to s. 718.2 of the Criminal Code and s. 718 at the time of the commission of these offences read as follows:

"The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

Section 718 has been amended somewhat to include the protection of society effectively, but that legislation which came into play on July 23, 2015 does not apply retrospectively, only prospectively. The amendments, therefore, do not apply in respect to this sentence which is imposed for conduct engaged in prior to the coming into force of the amended section.

[41] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[42] Section 718.2 states a court that imposes a sentence shall take into consideration the following principles:

"(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances,"

and, further, sets out in the following paragraphs:

"(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[43] The case law establishes the principles to be considered here as primary factors are the principles of general deterrence and denunciation. Still, the court must recognize that rehabilitation is also a factor to be considered. In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate Society's condemnation of the offender's conduct.

[44] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[45] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[46] The purpose of general deterrence in sentencing is to protect the public from the commission of such crimes as before the court by making it clear to Ms. Hall and to other persons with similar impulses that if they yield to them, they will be met with severe punishment.

[47] In dealing with the issue of a conditional sentence, I note the provisions of s. 742.1. I am also familiar with the case law that has developed since Regina v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449, which indicates the conditional sentence regime was enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. Such case law reinforces also the principle that each case must be decided and considered individually and that denunciation and deterrence can be sufficiently addressed within the context of a conditional sentence by the length of a conditional sentence and its terms and even in cases in which restorative objectives are of diminished importance.

[48] With respect to the issue of proportionality, that particular principle is rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of the accused and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[49] Both counsel have provided books of authorities and I have reviewed the various cases. The names and cites for those cases can be provided to counsel upon request.

[50] Keeping in mind that, although each case is decided on an individual basis, the case law clearly indicates general deterrence and denunciation are paramount considerations in dealing with sentencing involving breach of trust frauds. Of particular assistance in addressing the principles to be considered are the cases of Regina v. Dobis, Regina v. Wismayer, Regina v. Pierce, Regina v. Williams where the court reviewed the various case law setting out principles dealing with sentencing in fraud cases involving large amounts of money and breaches of trust and set out a series of factors to be considered as aggravating and mitigating in dealing with the sentencing in such a case. See also Regina v. Ruhland, Regina v. Bogart, Regina v. Corner, Regina v. L.E.C., Regina v. Dinardo, Regina v. J.W., Regina v. Cunsolo, Regina v. Dhaliwahl.

AGGRAVATING FACTORS

[51] The aggravating factors in this matter are as follows:

1. The accused was employed by Weigel Property Management and reported directly to its principal, Michelle Weigel, in a position of trust. The company presents as a small entity and Ms. Weigel, together with other employees such as Ms. Gooden, considered Ms. Hall not only to be an employee but a friend and colleague. Ms. Hall abused that position of trust in a most egregious manner and that abuse is a statutorily aggravating factor for consideration on sentencing.

2. The magnitude and the impact her criminal conduct has generated cannot be understated. Her employer and several clients have been defrauded of approximately $340,000. Although a large portion of this money has been covered by insurance, the company itself and Ms. Weigel personally are out of pocket some $50,000 which was required to make up the shortfall in insurance funds and also as a result of accounting costs incurred during the investigation of the matter by the company.

3. The impact on the victims as noted in the statements filed has been significant. This includes not only the financial loss already referred to, but also the loss of the reputation of the company in the community and the reduction in business which has placed the financial viability of the company in some jeopardy and compromised the sense of security which was in place for employees such as Ms. Gooden.

4. The conduct of Ms. Hall took place over several months and involved some degree of planning as well as deception on her part in order to avoid disclosure. Her conduct represents a period of dishonesty and not an isolated event as several transactions were carried out during the course of the scheme she initiated. The duration of the theft and the period of time over which it took place magnifies the gravity of the conduct of Ms. Hall and highlights her moral blameworthiness. Although Ms. Hall has a criminal record, it is dated. She seems to have held positions of trust over a number of years and there would have been many occasions during the course of this criminal conduct where Ms. Hall would have had an opportunity to step back, realize the extent of her crime, rethink her position and reconsider her course of conduct. Ms. Hall did not do so, nor did she voluntarily disclose her actions. It was only by chance that Ms. Weigel discovered the conduct during the course of reviewing the corporate bank account.

5. As noted, the victim impact statements are eloquent and speak to the loss both financially and personally felt by the company, Ms. Weigel and Ms. Gooden. When one hears both of them read their statements, which they did in open court, the emotional stress and strain caused by Ms. Hall's conduct is still evident notwithstanding the passage of some time since the conduct was disclosed.

MITIGATING FACTORS

[52] The mitigating factors in this matter are as follows:

1. Ms. Hall has entered pleas of guilty which are in and of themselves signs of remorse. I am fully satisfied that Ms. Hall is otherwise remorseful and that that remorse is genuine and sincere as she expressed to the court herself. A trial and/or preliminary inquiry in this matter would have taken an extended period of time and would have further victimized the employees of the company by requiring that they attend to give evidence. The pleas of guilty to the counts has eliminated that necessity.

2. Not only is Ms. Hall's remorse apparent by her pleas and the comments she herself made to the court, it is my understanding that she was candid with the author of the pre-sentence report with respect to her conduct and also accepted responsibility from the get-go when approached by the police. She was fully co-operative and acknowledged her wrongdoing at the outset.

3. Ms. Hall is currently 50 years of age and, although not a first offender, her record is dated and really of little consequence at this point in her life. Still, she has been involved in the criminal justice system previously and is aware that criminal conduct has consequences. She is the mother of an 11 year old child to whom she has not even disclosed her conduct at this point. She has victimized not only the company, Ms. Weigel and the company's employees, but also herself and her family, and most importantly, her son.

4. The conduct of Ms. Hall would appear to be out of character for her and, given the reason expressed for the fraud that was perpetrated, is, to be quite candid, conduct which is incomprehensible. There is nothing before the court by way of a psychiatric or psychological assessment to help the court understand how Ms. Hall allowed herself to be effectively victimized by an individual whom she met on-line and had only met on one occasion for a very short period of time. I expect Ms. Hall has asked herself that on many occasions and she probably has no explanation herself. I am prepared to accept she was herself somewhat vulnerable obviously to be led down this particular path by this individual and I would strongly urge Ms. Hall to attempt to understand more fully the reasons for her conduct with the assistance of professionals in the community at some point in time. I am satisfied on the submissions of counsel, somewhat supported by the position of the Crown, that none of these monies actually found their way into Ms. Hall's pocket directly or indirectly. I accept she exhausted her own funds prior to taking part in this conduct and I am satisfied that she herself believed that the monies would be repaid and that she would then, as noted to the police and others, reimburse the company. That never took place, the amount is substantial and the court appreciates that. I am satisfied, however, Ms. Hall is otherwise of good character and this conduct, which as I have noted is unexplained to any acceptable degree, would appear to be out of character for her. I am optimistic that rehabilitation is a strong possibility given Ms. Hall's remorse, otherwise good character and desire to understand herself why she acted the way she did in the circumstances that were presented.

5. The pre-sentence report is a positive report. It sets out the background of Ms. Hall and also demonstrates, as do Ms. Hall's comments to the court, that she herself has suffered some consequence as a result of her conduct. She has been embarrassed, humiliated and is ashamed of her conduct. She certainly, as expected, lost her employment and was recently supported by Ontario Works, although now apparently employed. I do not see her conduct as conduct being generated by greed but by other factors. There are no significant assets or lavish lifestyle in place here, as noted, and the monies, together with her own resources prior to initiating the fraudulent conduct, have apparently benefited only the individual noted previously.

SENTENCE TO BE IMPOSED

[53] The sentencing of an individual is perhaps one of the most difficult tasks for a judge and the circumstances of this particular case certainly emphasize that difficulty. The fraud here involves a significant amount of money and the conduct which took place over an extended period of time has impacted several people. General deterrence and denunciation are primary principles of sentencing to be considered.

[54] The aggravating factors have been enumerated as well as the mitigating circumstances present. The courts have continually emphasized that there is no standard sentence for there is neither a standard crime nor a standard criminal. Although there are principles to be applied which assist the court in arriving at the imposition of a sentence in any case, their application does not always mandate the same result. (See Regina v. Costin, [1996] O.J. No. 299, para. 35).

[55] Defence in this particular case urges a proper disposition would be a blended sentence, that is a short sharp sentence in the range of 90 days to be served in a traditional setting and a conditional sentence for a considerable length thereafter. I do not find this submission to be appropriate. The conduct involving the fraud and the forgery arises out of the same set of circumstances and I am ultimately satisfied that the fundamental principles of sentencing cannot be adequately addressed by a conditional sentence. The case law clearly establishes there may be circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct and this is one of those cases.

[56] All of the good qualities of Ms. Hall together with the mitigating factors present impact on the length of the sentence to be imposed but the period of imprisonment to be imposed must be in a traditional setting to effectively address the principles of general deterrence and denunciation. The conduct of Ms. Hall involves an egregious breach of trust which took place over several months and involved numerous transactions. Further, the impact of the fraud coupled with the circumstances of the offences themselves cannot in my view be adequately denounced, nor can the principle of general deterrence be addressed by a conditional sentence as suggested by counsel.

[57] Looking at the circumstances of both the offences and the offender I am satisfied that the least restrictive sentence which can reasonably address all principles of sentencing is a period of imprisonment in a traditional setting for 12 months to be followed by a period of probation for three years.

[58] The terms of the probation order will be as follows:

(a) You will keep the peace and be of good behaviour.

(b) You will appear before the court when you are required to do so.

(c) You will notify the court or the probation officer in advance of any change of name or address.

(d) You will promptly notify the court or the probation officer of any change of employment or occupation.

(e) You will report within two working days of your release from custody to a probation officer as directed and thereafter be under the supervision of the probation officer and report at such times and places as the probation officer may require.

(f) You will attend and actively participate in any rehabilitative program or counselling for any area identified by your probation officer and you will provide proof as may be required by your probation officer of your attendance at and your participation in any program that is recommended. You will also provide your probation officer with an authorization to permit your probation officer to liaise with any counsellor under whose care you might be to monitor your course of counselling.

(g) You will make reasonable efforts to find and maintain suitable employment.

(h) You will make restitution to Weigel Property Management in the amount of at least $200 a month commencing the first month of your probation order and continuing in consecutive months thereafter with each installment to be made the last day of each month and to be paid to the clerk of the court at 85 Frederick Street, Kitchener, Ontario, which payments are to be the credit of Weigel Property Management.

[59] With respect to the s. 738 order, I have no difficulty in making such an order in favour of Weigel Property Management in the amount of $31,960.42, being the shortfall between the insured funds and the losses to the various condominium corporations.

[60] However, I tend to agree with the submissions of defence counsel that the costs of what effectively was a forensic accounting is not properly the subject matter of such an order, although properly and quite candidly, appropriate in the context of a civil proceeding. I am satisfied that the provisions of s. 738(1)(a) limits the amount recoverable to an amount representing the actual loss of the property, i.e. the funds representing the shortfall paid and not the costs incurred effectively as part of the investigation as to the quantum of such loss, which costs I find are costs incurred for preparing the case and not the actual loss.

[61] As a result, there will be an order under s. 738 for $31,960.42 in favour of Weigel Property Management. I am of the view that this order, although Ms. Hall currently has limited ability to pay, is an amount that is certainly capable of repayment and will not impact on the rehabilitation of Ms. Hall.

[62] There will also be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code as both offences are secondary designated offences.

[63] In summary then, there will be a sentence of 12 months' imprisonment to be followed by three years' probation on the count of fraud, a s. 738 order as well as a DNA order. With regard to the count of uttering a forged document there will be a six-month concurrent period of imprisonment and a concurrent three-year period of probation.

[64] I would like to thank counsel for the thorough and thoughtful submissions which have assisted the court in this difficult sentencing.

Released: January 8, 2016

Signed: "Justice G. F. Hearn"