Court File and Parties

Ontario Court of Justice

Date: June 28, 2017

Court File No.: 16-A10631

Between:

Her Majesty the Queen

— and —

Jennifer Taverner

Before: Justice Julie I. Bourgeois

Reasons for Sentence delivered on: June 28, 2017

Counsel:

• Mr. Carl Lem, for the Crown
• Mr. Bruce Engel, for the accused

Introduction

[1] On August 25, 2016, Mrs. Jennifer Taverner entered a plea of not guilty to fraud over $5,000 contrary to s.380(a) of the Criminal Code, a straight indictable matter, but guilty to the lesser and included offence of fraud under $5,000, contrary to s.380(b) of the Criminal Code, covering a period from October 14, 2015 to April 6, 2016. The maximum penalty is two years jail.

[2] The amount of the fraud or theft at that time was $17,800. The matter was adjourned for the preparation of a pre-sentence report and to complete the full restitution. However, during that period of adjournment, it was discovered that the amount of the fraud was higher, totalling $47,045.41 and the period of time started in approximately January 2010. The matter was adjourned numerous times to allow both Crown and defence to consider the additional information in light of their respective options. On June 16, 2017, Mrs. Taverner confirmed her guilty plea, signed the agreed statement of facts, after reviewing it with her counsel, and it was filed as Exhibit 1 to this proceeding.

Facts

[3] The facts in this case can be summarized as follows: Mrs. Taverner was employed by the Ottawa-Carleton Lifeskills Inc. ("OCL"), an organization offering support to individuals in our community to allow them to live independently. She was assigned to Mr. Douglas Beckett, a developmentally disabled adult, to assist him with things such as finances, shopping and managing medical issues.

[4] Mrs. Taverner had been his primary staff support since 2006. She had joint signing authority on Mr. Beckett's Scotiabank Basic Banking Account since approximately October 2006. Mr. Beckett received his monthly direct deposits from Ontario Disability Support Program (ODSP) and other government agencies and whatever pay he earned went into that account. Mr. Beckett entrusted the accused with a debit card for that account to allow her to make purchases related to his needs and to ensure he did not spend beyond his means. They met on a weekly basis. The offender would withdraw cash from his account in order to provide him with his weekly allowance of $80 and with an extra $100 monthly for his bus pass and cellular phone bill.

[5] In 2010, the offender began using Mr. Beckett's money for her own personal expenditures. In August 2015, Mr. Beckett received a settlement cheque of $29,400 from a class action lawsuit as a result of abuse he had suffered as a child. A separate account referred to as a "Momentum Savings Account" was opened solely in his name and a large portion of the settlement money was transferred in that account. However, Mrs. Taverner was given access into that account through Mr. Beckett's debit card. She appropriated funds from that account as well.

[6] Between January 2010 to July 2015, the offender made 644 transactions for her own personal benefit, from Mr. Beckett's chequing account, ranging from $1.00 to $739.27. From September 2015 to April 2016 she made 43 fraudulent transactions from the Momentum Savings Account, ranging from $4.40 to $337.87. She also continued to defraud the chequing account after July 2015 until April 2016, by making 184 fraudulent transactions ranging from $1.00 to $6,436.80. She defrauded Mr. Beckett of a total of $47,045.41, through a total of 871 fraudulent transactions from 2010 through to April 2016.

[7] She used Mr. Beckett's money to purchase items such as gas, paying for travel, making e-mail money transfers to her personal account and paying personal bills. She also used his money at various points of sale purchasing items not related to Mr. Beckett's needs, for example at places such as: La Vie En Rose in Orleans, Lululemon in Ottawa, a Duty Free shop in Mississauga, the Times Square Mall in Negril, Jamaica, Wal-Mart and La Bella Nail Salon in Rockland, where she lived at that time.

[8] The frauds were discovered when, in April 2016, while the offender was away on vacation, Mr. Beckett received notice from his landlord that his April rent had not been paid. The payment was supposed to come out of his bank account automatically. He and a temporary replacement worker attended the bank on April 14, 2016 and it became apparent that a number of recent transactions made on his account were not for his benefit and had not been made by him either. Indeed, this is how they discovered that Mr. Beckett's accounts were significantly depleted.

[9] Jennifer Taverner's employment with OCL ended on April 24, 2016. She was charged on April 29, 2016 and she entered a guilty plea on August 25, 2016. A Pre-sentence Report was prepared and filed as Exhibit 2. She restituted the full amount of her fraud, $47,045.41 to Mr. Beckett. A letter from the Children's Hospital of Eastern Ontario (CHEO) was filed as Exhibit 3, describing Mrs. Taverner's 15 year old son's health status and needs.

[10] Mr. Beckett read his Victim Impact Statement, it was filed as Exhibit 4. OCL filed an Organizational Impact Statement also, filed as Exhibit 5. Mrs. Taverner also addressed the Court and Mr. Beckett during the sentencing hearing, expressing remorse for her actions fuelled by greed.

Position of the Parties

[11] The Crown is seeking a custodial period of 15 months followed by a probation order of 24 months and an order for 10 years pursuant to s. 380.2 of the Criminal Code, prohibiting the offender to work or volunteer in any capacity involving authority over real property or finances of another person. It is the Crown's position that this fraud, not so much because of the amount, but because of the egregious breach of trust and the impact the crime had on the victims, Mr. Beckett and the OCL, make a conditional sentence inconsistent with the sentencing principles.

[12] Defence counsel agrees that jail is required, but submits that a conditional sentence can accomplish the purpose and meet the principles of sentencing when considering the individual offender and offence before this Court.

[13] Both counsel, assisted by the investigating officer, OCL staff, student and staff from defence counsel's office, have put significant time and efforts to this matter and I want to acknowledge their work and collaboration.

[14] There is not much dispute between the parties in relation to the aggravating and mitigating factors. However the weight to be given to each is disputed. Both counsel recognize that the sentencing process is a highly individualized endeavour and both provided case law in support of their respective positions.

Analysis

[15] The Crown provided the following cases outlining the paramountcy of the objectives of sentencing in this case: general deterrence and denunciation: R. v. Mathur, 2017 ONCA 403 at para. 12; R. v. Castro, 2010 ONCA 718 at paras. 30, 35; R. v. Taylor, 2012 ONCA 809 at para. 36; R. v. Roberts, 2017 ONSC 1071 at paras 39, 51; R. v. Williams, [2007] OJ No 1607 (SCJ) at paras. 23-26; R. v. Bracegirdle, 2004 ABCA 252 at paras 40-42.

[16] Counsel for Mrs. Taverner provided examples of cases where a conditional sentence was imposed: R. v. Neblett, [2009] OJ No 6392 (OCJ); R. v. Sampson, 2016 ONCJ 128; R. v. Robinson, [2003] OJ No 4722 (SCJ); R. v. Cobb, 1997 CarswellOnt 6494 (OCJ); R. v. Berenbaum, [1997] OJ No 5468 (OCJ); R. v. Houlahan, unreported, delivered in Ottawa by L.D. Ratushny J. on April 21, 2017; R. v. Sterling, 2016 ONCJ 691; R. v. Moore, 2013 ONCJ 421; R. v. Webb, 2011 SKPC 181; R. v. Bunn, 2000 SCC 9.

[17] Some of the aggravating factors are codified and can be found in ss. 718.2(a)(iii) – the offender abused a position of trust or authority in relation to the victim; ss. 718.2(a)(iii.1) – the significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. Section 380.1(1)(c.1) also addresses the significant impact on the victims in cases involving fraud.

[18] Mathur, supra, is the most recent case from our Court of Appeal confirming the sentencing principles in cases of fraud similar to the case at bar. In that case, the accused was 65 years old at the time of sentencing and had been an accountant and a real estate agent and broker. For a period of three years, he falsified 292 tax returns and created T4 slips from two fictitious companies. Although he attempted to obtain $343,840 he was able to obtain $35,321 under that scheme. He had no criminal record, family support and took counselling prior to sentencing. He had made an offer to restitute the CRA, but no monies were paid. He was sentenced to 12 months jail. The sentencing judge did not mention the offer to make restitution in the decision.

[19] The Court stated that it is an error not to take into account an offender's offer to pay restitution and at para. 10 quoted from two of its own decisions: R. v. McLellan, 2012 ONCA 717: "An offender's ability and willingness to pay restitution is an important consideration in the sentencing of fraud and related offences."

[20] And from R. v. Bogart (2002), 61 O.R. (3d) 75 (C.A.) where Laskin J.A.: "[r]ecognized that the payment of full restitution before sentencing 'might' be a 'special' circumstance justifying a conditional sentence where a prison sentence is otherwise appropriate."

[21] But, at para. 12, Trotter, J. indicated: "In large fraud cases involving a breach of trust, a genuine offer to make full restitution, while important, must take a secondary role to the sentencing objectives of general deterrence and denunciation."

[22] At para. 14, the Court of Appeal stated that it did not matter if a fraud was characterized as "large-scale" in relation to the amount or value of the fraud. It was the presence of the many aggravating factors that had to be considered when emphasizing general deterrence and denunciation. These factors were:

1. The degree of sophistication and planning involved – in our case, it was a very simple scheme, Mrs. Taverner had the debit card in hand;

2. The significant number of transactions – 292 tax returns in that case; 871 transactions in our case;

3. The duration of the fraud – over 27 months in that case; approximately 76 months in our case;

4. The fraud was perpetrated on the Government of Canada – in our case it was on Mr. Doug Beckett;

5. The appellant was caught, as opposed to voluntarily terminating his activities – as in our case.

[23] At para. 15, the Court concluded that: "[e]ven with an offer of restitution (which was ultimately not made) – [it was fully made in our case] – a conditional sentence would not achieve the goals of general deterrence and denunciation. The sentence imposed was fit."

[24] In Castro, supra, the Court of Appeal had already indicated the primary consideration in sentencing an offender who has used his or her position to commit a breach of trust: protection of the public, general deterrence and repudiation of the conduct. At para. 30, Weiler J.A. stated:

Relevant factors include the length of time over which the conduct took place – [over 6 years in our case] – whether the offence was a sophisticated and well planned scheme – [it was not in our case] – the amount involved, - [$47,045.41 in our case] – and, most importantly, the impact of the offender's conduct on the victims.

[25] Again, at para. 35, the Court of Appeal stated: "(…) When the offence involves a breach of trust, a primary consideration is the effect on the victim;"

[26] I want to review parts of the Victim Impact Statement and the comments provided by Mr. Beckett for us to better understand the impact of this crime on him: "When I first heard that Jennifer Taverner stole from me I was surprised, angry, heartbroken, brought to tears, confused, and I felt betrayed."

[27] He also explained:

When I got my settlement I really wanted to buy a new bed and other furniture, like a flat screen television. Jennifer Taverner convinced me that it was expensive and to not spend the money and to wait. My subsidized apartment has been fumigated many times to get rid of bed bugs. They were in my bed and my couch and my chair. The fumigation never got rid of them and my place was often sprayed with chemicals that left a chemical smell in my furniture. A few days ago I got new furniture and it feels great to sit comfortably and watch television.

[28] This is while the offender was getting a manicure and buying lingerie at La Vie En Rose, using his money to pay for it.

[29] He also explained that many times he wanted to talk to her about spending his money on a trip with his 74 year-old dad. He missed out on that trip with his father and his sister. Meanwhile, the offender is travelling to Jamaica, using his money to purchase items at the Times Square Mall in Negril.

[30] Finally, I believe it is important to note Mr. Beckett's feeling of abuse from the offender. He explains: "The settlement money was for abuse that I suffered as a child, and I feel abused by Jennifer Taverner stealing my money while I was told not to spend it."

[31] The impact of this crime on this victim can hardly be compared to the CRA being defrauded of $35,000 over three years. The vulnerability of Mr. Beckett and the specific impact on him caused by the 871 transactions of Jennifer Taverner over six years in the amount of $43,045.41 are most important in this case.

[32] This is certainly a large-scale fraud when considering Mr. Beckett's limited income on ODSP. Mrs. Taverner could not take much more money than what she has because there was not much more there available to take. In other words, she took the entire amount of the settlement he had received and more, over a period of six years. Mr. Beckett is not the Government of Canada or the CRA, he is not a chartered bank or the RBC, he is not a school board, he is not a businessman owning franchises such as Canadian Tire or Tim Horton's; he does not have a post-secondary education or specialized training or a profession such as a lawyer, an accountant, a teacher or a real estate broker. He is Doug Beckett, a developmentally disabled adult, who requires the support of OCL to live independently within our community.

[33] OCL also provided a Victim Impact Statement describing the impact this crime had and continues to carry on their organization. They support "our community's most vulnerable citizens". Their organization "was built on a foundation of integrity, trust and compassion." OCL was shaken to its core. The offender's crime also affected their organization as a whole, whether it is the directors or the employees trying to answer questions they did not always have the answer to but also, the individuals they support and their families, having concerns and questions not always answered.

[34] There was also a financial impact on the organization as they hired, at a cost of $25,000, a third party to evaluate the documents to accurately quantify and audit Mr. Beckett's losses.

[35] As stated at the end of the Victim Impact Statement: "OCL does not want Ms. Taverner's actions to taint the hard work of all its other hard working and caring employees." In other words, their reputation as an organization and their employees' reputation were shaken by the actions of the offender.

[36] Indeed, Ms. Taverner obtained this position of trust following a strict hiring process. Her good character guaranteed her employment and as such the trust of her employer and of Mr. Beckett. The quality and degree of trust were very elevated. OCL as an organization relied on her to deliver the services and Mr. Beckett relied on her to receive those services. All agree, in this case, the breach of trust was egregious here.

[37] Hill, J. in R. v. Williams, supra, summarized the general principles from para. 21 to 28. At para. 23 he lists the cases stating that: "[t]he most important factor in sentencing persons who have occupied positions of trust is the factor of general deterrence."

[38] He also quotes from the seminal case R. v. Bogart (2002), 167 C.C.C. (3d) 390 (Ont. C.A.) (leave to appeal refused [2002] S.C.C.A. No. 398), at p. 398: "Mitigating factors and even rehabilitation become secondary."

[39] At para. 27:

The sentencing option of a conditional sentence is not excluded from consideration in breach of trust fraud cases" [and he listed the cases to this effect and added]: Many of these cases include exceptional mitigating circumstances. A conditional sentence, with properly tailored punitive conditions, can effect a measure of general deterrence and denunciation.

[40] However, at para. 28: "That said, large-scale frauds by persons in position of trust will almost inevitably attract a significant custodial sentence." And he quotes from R. v. Dobis (2002), 163 C.C.C. (3d) 259 (Ont.C.A.), and from R. v. Pierce (1997), 114 C.C.C. (3d) 23 (Ont. C.A.).

[41] At para. 30 he provided an overview of recognized aggravating factors in what was referred to as "white collar" breach of trust cases. From that list, these are the relevant factors to this case:

(a) The nature and extent of the loss. The amount of the theft of fraud is one factor only.

(d) Whether the sole motivation is greed.

(e) A lengthy period of dishonesty.

(f) The number of dishonest transactions undertaken in the commission of the offence.

(h) The offender was caught as opposed to voluntary termination of the criminality.

(j) The impact on victims of the fraud including members of the public, the employer and fellow employees.

(k) The quality and degree of trust reposed in the offender.

[42] At para. 31, Hill, J. lists the usual mitigating factors and the relevant ones to our case are first offender status and a plea of guilt. He then listed three factors in breach of trust frauds which " can serve to ameliorate the harshness of the disposition to be imposed ". The pre-trial making of restitution, in full in this case, is one of those mitigating factors relevant in this matter.

[43] Mrs. Taverner addressed the Court and more importantly Mr. Beckett at the sentencing hearing, trying to answer his question: why did she do this? She genuinely apologized and expressed remorse and shame. Through her counsel she explained that Mr. Beckett was not targeted. This was a crime of opportunity, motivated by greed. Courts have recognized this element as an aggravating factor (Williams, supra, para. 30). The Court of Appeal of Alberta in R. v. Bracegirdle, supra, at para. 40 said:

Dealing first with moral blameworthiness, the Respondent's actions were persistent, ongoing, planned and deliberate. They were callous, stealing from a particular vulnerable victim. Her motive was greed. Many crimes are motivated by sudden unanticipated opportunity, intoxication, or impulse; few involved long term criminal behaviour, motivated by greed and visited upon one particularly vulnerable victim. The Respondent's crime falls into the latter category. The consequences must be sufficient to deter others of like mind.

[44] Recognizing this as an aggravating circumstance, counsel for Ms. Taverner however also points to other mitigating factors, or at least circumstances that ought to be considered.

[45] In this case, the process since she was charged with the offence dates back over a year. She was charged in April 2016 and she pled guilty on August 25, 2016 to one count of fraud under when it was believed the amount of the fraud was $17,800. The full restitution of that amount was part of the resolution. It took a number of adjournments and weeks and months for the parties to peel through the records and determine the amount of $43,045.41 and the matter to come to a conclusion in June 2017. During this time, the offender is expecting to resolve the matter and put this behind her. She patiently waited for the process to unfold but enduring the stress of the unknown in the meantime. Nevertheless, she maintained her guilty plea without taking further court time in the options available to her.

[46] This is certainly a factor to her credit. But unfortunately, this extended process with a number of vigilant people peeling those records goes to demonstrate how this offence qualifies as a large-scale fraud. The scheme was nothing complex or sophisticated but it still required months for at least three individuals, the investigating officer, a law student and a legal assistant to go through the records and quantify the fraud.

[47] Another factor presented as an extenuating circumstance is the family situation of the offender. The Pre-Sentence Report informs us about her youngest son having been diagnosed a year and a half prior to the preparation of the report with diabetes and the letter from CHEO confirms his diagnosis on January 6, 2015. Counsel for Mrs. Taverner recognizes that this element is not a reason to be spared from jail but is one of the factors to consider in the grand scheme of things.

[48] Along those lines is also her marital situation. She was in a relationship with her husband, the father of her youngest son, for approximately 16 years. She was sponsoring him from the United States and his participation to the family financial situation was sparse even at the end of their relationship. She was responsible for the financial wellbeing of the family.

[49] During the period of time of this offence, she felt the family financial situation was unstable and relying on her. It is acknowledged that she bought extravagant and unnecessary items with Mr. Beckett's money. It is argued that these were the only pleasure she was getting. But indeed, the nature of the fraudulent expenditures was for luxuries. This is particularly offensive in light of Mr. Beckett's situation, living in a subsidized apartment, on a budget for food and sharing his bed and furniture with the bedbugs and finally missing out on a trip with his family. The offender's financial situation seems more comfortable in comparison.

[50] Other than her youngest son's diagnosis in 2015, there were no health challenges, mentally or physically, for her. At page 5 of the Pre-Sentence Report, she acknowledges taking advantage of the situation because she was selfish and accepted responsibility.

[51] She described this offence as being out of character. Indeed, as pointed out by Broad, J., in R. v. Roberts, supra, at para. 39 and Hill, J. in Williams, supra, at para. 25, "It is as a result of their otherwise good character that these offenders find themselves in these positions of trust". In this case however, to characterize 871 fraudulent transactions over a period of six years, as decisions out of character, seems a bit of a stretch.

[52] In the end, Counsel for Mrs. Taverner points to the mitigating factors or at least the extenuating circumstances to tip the scale towards a conditional sentence, crafted with enough teeth to reflect the principles of deterrence and denunciation.

[53] She is a 42 year old woman, with no prior criminal history; now diagnosed with depression since her arrest as a result of the predicament before the criminal justice system; mother of three children aged 21, 19 and 15; she pled guilty at the first opportunity, saving considerable court time and stress for the victims; not only showing remorse through her guilty plea but also genuinely expressing it to the victims; and having paid full restitution in advance of the sentencing hearing.

[54] The offender completed her high school education and attended a nursing program. She was able to secure employment after being charged with this offence. She is employed privately as personal support worker on a full-time basis. Her client has mental health issues and a baby at home. She did not inform her employer of the charges before the Court. There is no evidence that she has access to the client's finances however.

[55] In the end, I make mine the words of Hill, J. in Roberts, supra, at para. 61:

In my view, there are no unique and exceptional circumstances in this case which would militate in favour of the imposition of a conditional sentence. The applicable legal principles direct that I impose a period of incarceration which would adequately reflect the predominant principles of deterrence and denunciation.

[56] Our Court of Appeal in Taylor, supra, at para. 36 qualified a similar case as a serious offence, where the offender placed herself in a position of trust to the victim who completely relied on her. The fraud was committed over many months, depleting the victim of her entire life savings. The situation at bar cannot be distinguished enough not to follow Rosenberg, J.A.'s conclusion that, "the paramount objectives of sentencing must be deterrence and denunciation, and they cannot be adequately met by a conditional sentence." As in this case, the Court of Appeal recognized the mitigating factors in determining a fit and proper sentence. But those mitigating factors could not bring the sentence into the realm of a conditional sentence.

[57] It is a significant mitigating factor in this case that the full restitution of the fraud was paid to the victim in advance of the sentencing hearing. This important element seems to have been considered in Crown counsel's position of 15 months jail. Mrs. Taverner, early in the process, took steps to pay the restitution. Once the total amount of the fraud was established, she took further steps to pay that total amount. She sold her home and borrowed from family to ensure the full amount of the restitution was paid.

[58] Our Court of Appeal upheld, In Mathur, a 12 month imprisonment sentence for a fraud in the amount of $35,321; in Castro it was 23 months incarceration for a fraud in the amount of $141,752; in Taylor it was 21 months jail for $126,464 defrauded. Broad, J. and Hill, J. from the Ontario Superior Court of Justice in Roberts and Williams, imposed 2 years in relation to a $277,787.78 fraud and 18 months in relation to $159,000, respectively.

[59] None of these offenders had paid the restitution in advance of their sentencing hearing and all but for Mathur, the amount of the fraud was higher than in our case. On the other hand, except for the victim in the matter of Taylor, none of the other victims were as vulnerable as Mr. Doug Beckett.

Conclusion

[60] In the end, after considering the totality of the circumstances of the offence and the offender, I conclude that a fit sentence in this case is one of 12 months jail, to be followed by 24 months of probation. The conditions of the probation order are as follow:

• to report to the probation office within two working days of being released from custody and after that as directed by your probation officer;

• attend any assessment, counselling or treatment as directed by your probation officer;

• sign the waivers to allow your probation officer to monitor your counselling or treatment;

• do not communicate, directly or indirectly, in any manner with Douglas Beckett, any staff or any client of the OCL;

• do not attend within 25 meters of any place where you know any of these persons to live, work, go to school or frequent.

[61] There will also be an order, pursuant to s. 380.2 of the Criminal Code, for a period of 10 years, prohibiting you from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity that involves having authority over the real property, money or valuable security of another person.

[62] I will grant three years to pay the Victim Surcharge of 200$ given the sentence imposed and the offender's financial situation as a result.

Released: June 28, 2017

Signed: Justice Julie I. Bourgeois