Court Information

Date: December 13, 2019

Information No.: P 173700

Ontario Court of Justice (at St. Catharines, Ontario)

Parties

Between:

Ontario (Travel Industry Council)

- and -

Karen Robinson also known as Karen Gushue

Counsel

Mr. T. Snell for the Travel Industry Council of Ontario

Ms. Karen Gushue, initially self-represented at the sentencing hearing and subsequently represented by Mr. D. Kayfetz

Reasons for Sentence

NADEL, J.:

Introduction

[1] The defendant was a member of the Ridgeway Branch No. 230 of the Royal Canadian Legion. In 2016 and 2017 she organized and promoted two vacation packages at her branch of the Legion. Her first promotion was a four-day cruise package to the Bahamas, that took place in February of 2017. Her second promotion was a two-week vacation package to Hawaii that was supposed to take place in February of 2018. The Bahamas package was for a 4 Day/Night Bahamas Cruise for the total amount of $650.00 Canadian Dollars. The trip package promised transportation to and from the airport, round trip flight tickets to the embarkation point in Florida, the cruise fare and all applicable taxes. The cruise was all inclusive, including food and alcohol.

[2] The purchasers of the Bahamas package experienced significant difficulties. Those who went on the trip did not get what they had paid for. Those who cancelled their cruises did not get the promised refunds that they had contracted for.

[3] The Hawaii vacation package promoted and sold by Ms. Gushue never occurred.

[4] People who bought these trips complained to the Niagara Regional Police Service about their experiences in dealing with her and scores of dissatisfied purchasers made complaints about their experiences to the Travel Industry Council of Ontario (TICO).

[5] Section 4(1) of the Travel Industry Act prohibits any person from acting as a travel agent or holding herself out as being available to act as a travel agent without being registered as a travel agent under the Act.

[6] Ms. Gushue was not registered as a travel agent under the Act when she organized and promoted these vacation packages. Section 31 (1) (c) of the Act makes it an offence to contravene or fail to comply with any section or regulations of the Act.

[7] As a result of the complaints made to TICO, she was charged with the following two offences:

Count 1: that between August 29, 2016 and February 17, 2017 Gushue committed the offence of acting or holding herself out as being available to act as a travel agent without first being registered as a travel agent by the Registrar of the Act by selling cruise packages to the Bahamas that included return airfare, contrary to s. 4(1)(a) of the Travel Industry Act; and,

Count 2: that between September 30, 2016 and February 28, 2017 Gushue committed the offence of acting or holding herself out as being available to act as a travel agent without first being registered as a travel agent by the Registrar of the Travel Industry Act, by selling cruise packages to Hawaii including return airfare, contrary to s. 4(1)(a) of the Travel Industry Act.

[8] After a trial, at which the defendant was represented by counsel, I found Ms. Gushue guilty of both offences on February 8, 2019. My reasons for doing so are reported at [2019] O.J. No. 1792. I ordered a pre-sentence report as Ms. Gushue had no prior criminal record and the Crown's position was that I ought to impose a period of incarceration.

[9] The total of the losses suffered by those who bought the Hawaii trip was $45,500.00. An itemization of those losses was filed as Exhibit 2 on sentence. The total of the losses suffered by those who bought the Bahamas trip was $25,089.91. An itemization of those losses was filed as Exhibit 3 on sentence. The grand total of the losses caused by her offences is $70,589.91.

The Pre-Sentence Report

[10] Ms. Gushue was remanded to April 12, 2019 for the preparation of the pre-sentence report and to permit counsel to make sentencing submissions. That pre-sentence report was filed as Exhibit 1 on sentence. It contains substantial commentary on the allegations and the opinions of people not called as witnesses at the trial. In my view none of that ought to have been included in this report. In R. v. Kang, [2007] O.J. No. 3085, His Worship Justice of the Peace Quon wrote:

The purpose of a pre-sentence report is to supply to the court a picture of the offender as a person in society. A probation officer's recommendation for community supervision only means that he is not unsuitable for community supervision. The probation officer in developing their recommendation does not take into account deterrence and other sentencing objectives that a sentencing court has to consider in finding a fit and suitable sentence for the offender. The probation officer does not determine the appropriate sentence, but prepares a report to assist the sentencing court assess the offender's background, maturity, behaviour, attitude and willingness to make amends and to better able the court to view the offender as a person with individual characteristics.

Likewise, albeit in a criminal context, R. v. Bal, [2014] O.J. No. 2645, contains a useful review of the purposes and limits of a pre-sentence report.

The Adjournment of the Sentencing Hearing on April 12, 2019

[11] A sentencing hearing did not occur on April 12, 2019 as planned because Ms. Gushue discharged her trial counsel in this proceeding. Ms. Gushue was also facing a charge or charges of fraud over $5,000.00. That matter proceeded by way of a preliminary inquiry presided over by Justice H. Atwood and after she was convicted by me in this matter she and her counsel parted ways in both proceedings.

[12] With my concurrence one application to remove that counsel as counsel of record for Ms. Gushue in both proceedings occurred before Justice Atwood prior to her scheduled sentencing date in this proceeding.

[13] So, when Ms. Gushue appeared before me for sentencing on April 12, 2019, she appeared with a new lawyer, Mr. Protomanni, as her counsel. He had only been recently retained and he therefore sought to adjourn the sentencing hearing to prepare for it. In the result, this sentencing was adjourned to June 26, 2019.

The Sentencing Hearing on June 26, 2019

[14] On June 26, 2019 Ms. Gushue appeared before me without Mr. Protomanni. She advised me that Mr. Protomanni was no longer her counsel. I had him paged into court and both she and he confirmed that he was no longer acting for her. Despite his failure to bring a proper application to be discharged I granted his request in light of the breakdown of his relationship with Ms. Gushue. Hence, Ms. Gushue made her own submissions as to sentence.

[15] Being self-represented her submissions lacked rigour, were very repetitive and strayed substantially into submissions about "evidence" that had not been called at the trial and subjected to cross-examination, as she did not testify at her trial. In addition, no witnesses were called by the defence in this proceeding.

The Crown's Position

[16] Given the lack of mitigation by way of pleas of guilty and the many aggravating features of these offences, including:

• the scope of the losses;
• the length of time over which the offences were carried out;
• the lack of restitution;
• the fact that Gushue continued to promote and sell both trips when the Bahamas trip was in jeopardy of failure; and,
• the lies that Gushue told to cover up her malfeasance in the promotion of the Bahamas trip,

the Crown sought a sentence of four to six months' incarceration and probation.

Gushue's Submissions

[17] Ms. Gushue began her submissions by making this statement: "I stand before you truly sorry for my actions. The most important thing to me is the ability to have the deserved restitution reach those that are due. During the past two years since this transpired I have been able to negotiate more than half of the refunds and I feel that with [the prosecutor's] cooperation the remainder can be negotiated."

[18] At that point I asked Ms. Gushue what she meant when she said that she had "been able to negotiate half of the refunds." While that is what she submitted, on questioning that statement collapsed into a submission that the cruise company that she ultimately contracted with was prepared to reimburse some amounts for the alcohol expenses her victims incurred. The company's willingness to consider some reimbursement is now more than two years old and has never been acted upon.

[19] Ms. Gushue submitted that this approach to the cruise company might result in $10,000.00 or $11,000.00 of reimbursement, although not a dollar of alcohol reimbursement has ever materialized.

[20] In her submissions to me, Ms. Gushue said that it was her "understanding" that a beverages package was to be included in the trip that she ultimately booked for her victims. That "understanding" is inconsistent with the evidence called. As I noted in my reasons for judgment at paragraphs [35] to [39] the amenity of a beverage package was not included with the cruise that Ms. Gushue chose to replace the NCL cruise that she abandoned.

[21] Ms. Gushue submitted that she had approximately $36,000.00 available to make restitution to her victims. Once again, upon further questioning by me, it became clear that this amount was made up by the potential repayment from the cruise company for a drinks package that was not included in the trips that she booked, together with the following further funds.

[22] The balance of this $36,000.00 was an amount of money in excess of $26,000.00 that Ms. Gushue said had been reimbursed to her from the Hawaii cruise that never took place.

[23] Ms. Gushue said that she had placed this money for safekeeping with an ex-relative by marriage and that she was prepared to make restitution of it to TICO for distribution to her Hawaii cruise victims. She said that she would provide TICO with a certified cheque or bank draft in an amount in excess of $26,000.00 by July 22, 2019. She did not do so.

[24] Ms. Gushue repeatedly said that she had been trying to "correct" the situation for two years but had been stymied, (my word not hers), from doing so by a variety of hurdles including inconsistent advice from different lawyers, an inability to know where the funds should be sent because the Legion seized all of her documentation and she felt that she was precluded from pursuing restitution by her terms of bail.

[25] As a result she said that she thought she would wait until the day of her sentencing submissions to talk to and "negotiate with" the prosecutor, Mr. Snell.

[26] Mr. Snell opposed adjourning this sentencing any further.

[27] However, given the prospect of substantial restitution to her victims of the Hawaii cruise, I felt impelled to permit Ms. Gushue the opportunity to make that restitution. Hence this matter was adjourned from Wednesday, June 26, 2019 until July 29, 2019 for the imposition of sentence. What occurred on that date will be discussed below.

[28] As noted previously, Ms. Gushue undertook to provide something over $26,000.00 to TICO by July 22, 2019. She did not do so despite her professed statement that, "The most important thing to me is the ability to have the deserved restitution reach those that are due."

[29] In anticipation of being able to impose sentence on July 29, 2019 I heard the balance of Ms. Gushue's submissions, which were to the following effect.

[30] She submitted that she "may" have handled this "whole thing" wrongly. When I asked if she was referring to her acting as a travel agent she replied, "the whole thing". She submitted that she was unaware of the law respecting the regulation of travel agents and now understands why such regulations need to exist.

[31] Ms. Gushue said that she was only trying to be of assistance to the Legion and to the people she sold vacations to. These events have been a learning experience for her. She said that it wasn't until she was being interviewed for her pre-sentence report that it suddenly dawned upon her that she ought to stand up to people and just say no. She said that she was taught to help those you can whenever you can and, she professed that that is what she honestly thought that she was doing at the time. Her position is that she simply hadn't learned to set limits and boundaries and hadn't learned to say no because of her desire to help people.

[32] When I asked her about the lies that she told in the email which she distributed in her attempt to mislead her victims about her defaulting in payment to NCL she said that she did not compose that email although she admits to sending it out, (as if that somehow mitigated her lies, assuming that she was telling the truth about not composing the email).

[33] As noted earlier, much of her submissions amounted to unsworn evidence. She denied that these trips were instigated by her or were the product of her initiative. Rather, she said that as a long-time personal and family supporter of the Legion she merely mentioned that trips could be used as fundraisers. It was her position that it was the executive of the Legion that was responsible for instigating these trips and that it was the executive who asked her to organize the Bahamas trip. She was merely trying to be helpful as usual and things got out of hand.

[34] She agreed that she assumed responsibility for organizing the Bahamas trip and said that she thought they might get a group of about 20 travellers. She was the one who set the price for that trip; but, demand for the cruise grew horribly and she became overwhelmed.

[35] She submitted that the trips grew too large for her to handle and about one month before departure she asked to be relieved of responsibility for organizing the Bahamas trip but the executive of the Legion refused to allow her to resign, refused to allow the Bahamas trip to be cancelled and refused to refund everyone and refused to give her the help she needed. In the result, she submitted that things simply got out of hand.

[36] In fact, the substance of this submission – that she was overwhelmed and wanted out – is contrary to the evidence adduced. It was clear from the exhibits filed that Ms. Gushue continued to promote both trips while the Bahamas cruise was in jeopardy due to her fiscal irresponsibility. Rather than attempt to reduce the numbers of travellers the evidence demonstrates that she actively promoted individuals seeking to cancel to stay with the trips.

[37] When I asked her about forfeiting the NCL deposit she said that "I am responsible because of the disorganization" but that she did not want to let anybody down. When I pointed out that she only provided one way flight tickets to her victims she said that she "wasn't aware of that either". Once again, that simply cannot be true. While she asked Amelia Easterling, an American travel agent, to book flights for the Bahamas cruise, Easterling refused to get involved in doing so and told Gushue that she would have to handle that aspect on her own.

[38] In short, her position was that it was all unfortunate. All she wanted was to do something good for the Legion. Things got away from her and out of control, and she did not know what to do and everything snowballed. It was all just all unfortunate. She said that she really wanted to fix this but for reasons that she found sufficient, she simply could not.

[39] While the PSR noted that Ms. Gushue had an extensive history of volunteerism it was not particularized and so I asked Ms. Gushue to flesh out those experiences for me. She told me that she had done volunteer work for her whole life, including reading to the elderly at Mohawk Lodge in Hamilton after school and working as a candy striper at the Nora Francis Henderson Hospital, also in Hamilton. In addition, she was a Boy Scout troop leader in Hamilton for six years and most significantly she was a foster parent to over 19 children including two boys that she adopted.

[40] She noted that she was ignorant of the law but that she had no prior criminal record or prior record for this offence. She never held herself out to be a travel agent and was not in the business of being a travel agent.

[41] In addition, she stressed that sending her to jail would have adverse consequences for many members of her family so that punishing her by sending her to jail would unfairly punish her family, too.

[42] She submitted that both her parents are elderly and have serious health problems. They need to be ferried to medical appointments and require living assistance that she and her husband provide. She submitted that neither of her parents could cope without the help of her and her husband. Indeed, they all moved in together and now share a home together. In addition, her parents have only government assistance to get by on and could not afford to live independently of her and her husband.

[43] Further, both of her sons have problems that would be exacerbated by her incarceration. Her youngest son had been in residential treatment in the past and her older son, though high functioning, suffers from a form of autism. Both boys would be badly affected by her incarceration. Moreover, her husband works six days a week and cannot take up all the slack that her absence from their home would cause.

[44] Finally, she submitted that her delicts are not the kinds of transgressions that merit incarceration. The cases that merit incarceration are of a greater financial magnitude than what occurred here or the offenders who have been jailed had a prior record or a greater culpability and acted more overtly against the TICO regime than what she did.

July 29, 2019

[45] A few days prior to July 29, 2019 Ms. Gushue retained Mr. D. Kayfetz to appear on that date on her behalf. He brought a motion on short notice seeking to adjourn the imposition of sentence on that date. In a covering letter to me Mr. Kayfetz advised me that:

• "there is significant relevant evidence which is cogent to sentence";
• after the reception of this evidence "I may apply to reopen the proceeding and have the evidence considered on the question of guilt";
• the application for adjournment is being requested to allow for preparation that he was not able to complete due to "scheduling and motions required in other cases";
• he is retained and will stay with this matter until completed; and,
• he has been informed that he "will be receiving $26,428.00 in trust for restitution".

[46] The notice of motion set out the following grounds:

The reason for the adjournment is that newly retained counsel must prepare.

The question raised of substantial compensation being obtained by many of the travellers and the fact that this was never entered into evidence deprived the court of necessary evidence and raised the question of how much additional evidence was not entered during the trial. In a short time new Counsel has discovered many areas of fact which were not brought to the attention of the court. This evidence will be cogent either to sentence or to reopen the trial and apply the evidence to the question of guilt or innocence.

The honourable court will be asked to hear the evidence which certainly goes to sentencing and may very well lead to a decision of the court to reopen the trial to ensure that justice is done.

The accused will be depositing funds for restitution into my trust account. I understand there are many claims filed.

Counsel requires time to review and prepare for presentation. Counsel is not able to competently review and prepare due to other existing obligations.

[47] Despite Ms. Gushue's failure to honour her undertaking to provide restitution in excess of $26,000.00 to TICO by July 22, 2019 and notwithstanding Mr. Snell's desire to proceed with the sentencing I granted the defence application for adjournment and adjourned the matter for submissions to September 12, 2019.

[48] Before doing so I stated two things to both counsel, but particularly to Mr. Kayfetz. First, I noted that his adjournment application hinted that he was suggesting that Ms. Gushue's trial counsel had provided ineffective assistance to her. I noted that this position was a complaint over which I did not have jurisdiction; that this kind of complaint was a matter for appellate consideration.

[49] Second, and more to the point, I referred counsel to R. v. Arabia, 2008 ONCA 565, a decision written by Mr. Justice Watt, where he deals specifically with the test required to be met when deciding whether to permit re-opening of the defence case.

September 12, 2019

[50] Prior to commencing court on September 12, 2019 a large manila envelope of materials was left for me at my office by Mr. Kayfetz. I had little time to review its contents but it was a hodgepodge of mostly inadmissible offerings of untested evidence that the defence could have attempted to call during the defence case in this trial.

[51] I shall, in a footnote, briefly identify the materials that were left for me by Mr. Kayfetz. In due course, I shall collate the inadmissible portions of that material into its original envelope and mark it as Exhibit A on this sentencing so that it will be available to any subsequent court that reviews my sentence. Such of the items or portions of the items as are admissible on this sentencing will also be identified and, in due course, shall be exhibited on this sentencing.

[52] I reiterate that two prosecutions developed out of the trips that Ms. Gushue promoted. One of those prosecutions was the trial of these two TICO charges. The other matter was a fraud over $5000.00 charge or charges under the Criminal Code. There was a different officer-in-charge, (IOC), in each proceeding. As in this trial, the Crown in the fraud over matter was obliged to and did make Stinchcombe disclosure in that matter. Further, Ms. Gushue had the same counsel in both this trial to the point of conviction and in the fraud over preliminary inquiry so that any information in the fraud over matter was available to that counsel, (and Ms. Gushue), in this matter and visa-versa. Likewise, any witnesses with relevant and admissible evidence to either proceeding could have been called by the defence in either proceeding.

[53] Further, despite Ms. Gushue having undertaken to provide in excess of $26,000 of restitution to her victims of the Hawaii trip by July 22, 2019 and having not done so and having told Mr. Kayfetz that she would provide him with restitution of $26,428.00, as he advised me by letter noted above, at paragraph [45], she had not done so by September 12, 2019.

[54] Given the number of issues arising out of the late delivery of these materials, including their lack of relevance, their inadmissible opinion content, their failure to meet the Palmer test for admissibility, further sentencing submissions were adjourned to November 15, 2019. Having noted the foregoing I shall now attempt to identify the materials that were dropped on my desk on the morning of September 12, 2019, in the following footnote.

November 15, 2019

[55] On this appearance, Mr. Kayfetz in a more rigorous form made the same submissions on behalf of Ms. Gushue as she did herself on June 26, 2019; videlicet: given her biography and background and credit ledger of good works, a non-custodial sentence should be imposed. Likewise, Mr. Kayfetz urged that comparable cases have not resulted in sentences of incarceration. In short, a period of probation with a restitution order ought to be imposed.

[56] No restitution was presented or paid on that date though submissions were made that it was forthcoming. In these circumstances, I adjourned the matter for the imposition of sentence with no further submissions to be made on the morning of December 13, 2019. I invited counsel to let me know immediately if and when any promised restitution was made.

The Week of December 13, 2019 and December 13, 2019

[57] On December 12, 2019 Mr. Snell advised me by email that TICO was in possession of a Bank of Montreal bank draft in the amount of $15,000.00 received from Ms. Gushue. Mr. Kayfetz advised that another $11,983.00 was not available to be paid over because of an error in the name of the payee, (Ms. Gushue's ex-husband), who was hospitalized and apparently unable to rectify the error.

[58] It is not clear to me how or why that individual would be involved in this matter at all. Ms. Gushue submitted that her ex-brother-in-law was holding all of the restitution money in trust for her. On a previous appearance I was told that her money had been placed into a locked-in GIC and some further time was required to make it liquid. The ex-husband had nothing to do with it so far as Ms. Gushue's submission was concerned.

[59] While she initially undertook to provide the restitution to TICO, once Mr. Kayfetz came to be involved, it would have been a simple matter to have the money paid over to him as he submitted his client had promised to do.

[60] In any event, as I type these words Ms. Gushue has paid the sum of $15,000.00 back to TICO by way of restitution.

[61] On December 12, 2019 I received another letter from Mr. Kayfetz together with 26 pages of attachments. Mr. Kayfetz's letter submitted that these attachments were unrelated to the question of his client's guilt on the two counts but rather that the attachments are relevant to sentence.

[62] The first five pages of these attachments was Ms. Gushue's statement of family history that I had previously exhibited.

[63] The next item spoken to in what amounted to written submissions by letter are documents that confirm Ms. Gushue purchased plane fares going south to Florida. That is not contentious. The evidence was undisputed that she provided air fare to her victims to fly to Florida. The trial evidence was that it was not until her victims were on the cruise boat that she advised them that they only had one-way air fare. That was the evidence at trial. It was not contested at trial.

[64] Mr. Kayfetz submitted in his written submissions, (dated December 11, 2019 but which I received on December 12), that the documents appended at pages 11 to 15 of his written submissions demonstrated that Ms. Gushue paid for return flights from Florida.

[65] Respectfully, I find that these attachments show no such thing. Pages 11 to 14 appear to be a BMO Master Card bill, presumably Ms. Gushue's. This bill shows various payments to Spirit Air paid on the date of the flight down to Florida. Page 15 is a document that appears to show Ms. Gushue paid for her return flight from Florida, but it shows no more than that. That document does not speak to anyone else's return flight.

[66] Moreover, I have previously accepted the testimony of the witnesses called at trial that they were not provided with prepaid return flights. Those witnesses could have been challenged on that point when they were cross-examined. They were not.

[67] Next, Mr. Kayfetz provided some documents that he submits show the NCL cruise that Ms. Gushue cancelled was less expensive than the RCI cruise that she substituted for it. Again, that is contrary to the evidence called. Ms. Gushue was, as I found, unable to pay for the NCL cruise and forfeited a $10,000.00 deposit. She then went to American travel agents to try and replace that cruise with a less expensive cruise. That is what she told the American travel agents as I noted in my reasons for judgment. The documents which are not the complete record of the initial NCL cruise or the RCI cruise do not contradict that finding. Again, these witnesses were available for cross-examination at the trial. The evidence called at trial, evidence that was subject to cross-examination, was that Ms. Gushue told the agents that she was looking for a less expensive cruise.

[68] Next, Mr. Kayfetz turned to the question of an alcohol amenity package. Once again, that issue was raised at the trial and the witness who booked the cruise was available for and was cross-examined at trial. Her evidence was that the cruise that she booked was the cruise that Ms. Gushue chose, and it was a cruise that did not have an alcohol amenity package.

[69] Finally, on the issue of any compensation that might have been offered by RCI for the lack of an alcohol amenity, the documents provided by Mr. Kayfetz show that that cruise line no longer has the file that set out what they were prepared to consider. That was a file that was in the possession of Ms. Gushue; but it was a file that she never produced, despite my repeated requests to view it.

[70] At the end of the day, these written submissions are, once again, an oblique attempt to overturn findings of fact made after a contested trial. All of these matters could have been the subject of either cross-examination to obtain admissions or the subject of defence evidence, evidence that would have been subject to cross-examination.

Discussion and Imposition of Sentences

[71] Ignorance of the law by a person who commits an offence is not an excuse for committing the offence, although that ignorance may be considered in mitigation of sentence in appropriate circumstances. Gushue did not testify and her ignorance of the Act was disclosed as a submission made by her during the sentencing phase of this prosecution. Accepting that submission at face value does not offer any substantial mitigation given her proved behaviour and actions.

[72] She repeatedly submitted that things got out of hand, that it was her understanding that alcohol was included in the trip that she purchased, that she did not know that she had only bought one-way flights down to Florida and that she was overwhelmed by the response to her promotion and needed help but did not get it.

[73] None of that was or could be the case. Her words and actions belie those submissions as does the evidence called at trial.

[74] She sold these trips to anyone who would pay money to her, whether they were a member of the Legion or not. She went to restaurants to sign people up. Her complaint that the trips snowballed beyond her ability to control them is untenable given that she was pushing the snowball down the hill.

[75] She took her victims' money and failed to account for it and failed to reimburse them when they cancelled their contracts in a timely fashion as permitted by the formal contracts that she offered to them.

[76] She squandered her victims' monies by forfeiting $10,000.00 of the money that she collected when she defaulted on payments due, two months before the departure date of the Bahamas cruise.

[77] She attempted to cover up her actions with lies. On January 27, 2017 she circulated an email to her victims that began:

HELLO EVERYONE:

Unfortunately, it has recently come to my attention that our Bahamas Cruise has been compromised by an outside party beyond my control and as such was subsequently cancelled by the outside party to sabotage our cruise. This can come as a huge shock to everyone. It is understandable that this is upsetting and disappointing, however a comparable cruise leaving the same day for 4 nights to Bahamas has been arranged. FOR THOSE THAT HAVE SIGNED UP FOR THE HAWAII CRUISE I WANT TO ASSURE YOU THAT IN NO WAY CAN THIS PERSON ACCESS OUR INFORMATION. IT HAS BEEN PASSWORD AND ACESS CODE PROTECTION. THERE IS NO WAY FOR THEM TO ACCESS THE INFORMATION. IT IS 100% SECURE.

[78] So, while she submitted that she wanted to resile from continuing to promote these cruises, it is clear that she persisted in promoting the Hawaii cruise, which resulted in a 100% loss to her victims.

[79] Gushue complained that things got out of hand but she persisted in enlarging the trips and extending deadlines to permit more individuals to be sold to. As late as January 29, 2017 she was writing to one of her victims, (Roxanne Russell), urging her to reconsider her cancellation of the Bahamas trip.

[80] She was offered help by Ms. Russell as a result of the trip being "sabotaged" but did not accept it. That is not surprising since accepting help would risk exposing her lies about the trip being sabotaged. Likewise, Muriel Beckett, one of her victims, testified that she offered help to Ms. Gushue but Gushue put Beckett off and refused her offer of help.

Recent Caselaw

[81] Mr. Snell brought Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, to my attention. This is a decision of the Court of Appeal released on January 18, 2019 in which Justice Paciocco offers guidance in sentencing regulatory offenders, particularly for sentences of incarceration.

[82] At paragraph [37] of New Mex Justice Paciocco framed the issues that he discusses:

(A) Whether the appeal judge erred by misapplying the standard of review in a sentencing appeal;

(B) Whether the appeal judge erred in finding that the sentencing justice erred in imposing sentences of incarceration because fines would be unduly harsh for Mr. Purba and Mr. Saini;

(C) Whether the appeal judge erred in identifying the principles of sentencing for regulatory offences, specifically:

• The immateriality of moral blameworthiness in sentencing for regulatory offences;
• Restraint in incarceration for first offenders;
• The primacy of fines over sentences of incarceration;
• The relevance of corporate fines to the ability of directors in closely held corporations to pay related fines; and
• The relevance of compliance with orders issued after the accident;

(D) Whether the appeal judge erred in finding that the fines imposed on New Mex by the sentencing justice were demonstrably unfit; and

(E) Whether the appeal judge erred in imposing the sentences he did.

[83] Item (A) is not relevant to the imposition of sentence on Ms. Gushue. Item (B) was obviously an error and Justice Paciocco had no difficulty saying so. Jail is clearly a more onerous penalty than a fine and a genuine inability to pay a fine is not a proper basis for imprisonment. Moreover, for these purposes there is no need to review Justice Paciocco's commentaries on (D) and (E).

[84] It is the guidance provided in item (C) that is most significant for this case.

[85] Rather than reword Justice Paciocco's guidance I propose to edit his commentary into the following précis commencing at paragraph [60]:

(1) The principle of moral blameworthiness

[60] "moral blameworthiness" refers to an offender's level of culpability, determined primarily by his or her mental state. Where the moral blameworthiness of a regulatory offender is elevated, it may be appropriate to elevate the sentence imposed.

[61] It is true that regulatory offences are concerned with attaining public policy objectives and the criminal law punishes according to the degree of the offender's moral blameworthiness. However, this does not mean that moral blameworthiness may not also be a relevant sentencing consideration for regulatory offences.

[62] Regulatory offences often have a moral dimension. Deterrence performs a broader role in regulatory offences than its conventional role in criminal offences. Regulatory sentencing plays the double role of not only deterring by threat of punishment, but also of communicating condemnation for the moral wrong in acting contrary to the public good.

[64] The criminal law recognizes that those with guiltier minds tend to deserve or require greater punishment. This same principle applies to regulatory offences.

[65] Subjective fault and negligence based offences carry sufficient moral blameworthiness to make incarceration appropriate, depending on the circumstances.

[66] The relevance of moral blameworthiness in sentencing for regulatory offences follows necessarily from the application in regulatory offences of the fundamental sentencing principle of proportionality.

[67] A "sentence must be 'proportionate to both the gravity of the offence and the degree of responsibility of the offender."

[68] It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a 'fit' sentence proportionate to the seriousness of the offence." Not surprisingly, this sine qua non of just punishment is a central consideration when sentencing regulatory offenders where the penalty is not fixed.

[69] The principle of proportionality invites considerations of moral blameworthiness. Moral blameworthiness is one of the primary variables relied on to identify the degree of responsibility of the offender and hence the proportionality of the sentence imposed.

[70] The appeal judge correctly accepted that incarceration is more appropriate where an offender has acted wilfully or is a repeat offender. These are moral blameworthiness considerations that may properly influence the sentence imposed.

[71] Moral blameworthiness does not operate the same way in sentencing regulatory offenders, as it does in sentencing criminal offenders, because regulatory offences tend to reflect lower levels of moral blameworthiness. Strict liability offences are presumed to be negligence based offences. In Wholesale Travel, Cory J. cautioned, at p. 219, that regulatory offences based on a standard of reasonable care do not "imply moral blameworthiness in the same manner as criminal fault" (emphasis added).

[73] The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.

(2) The principle of restraint

[76] The appeal judge cited the principle of restraint from Priest that requires a sentencing judge, before imposing a custodial sentence on a first offender, to explore whether dispositions other than incarceration are sufficient. He went on to note that incarceration is "more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect." In my view, there is nothing wrong with applying this principle, or in making the latter observation.

[77] I would, however, raise one caveat. The "first offender" principle from Priest must be applied to regulatory offences with contextual sensitivity. In criminal cases, where proportional sentencing allows, primacy is to be given in sentencing first offenders to the sentencing objectives of individual or specific deterrence and rehabilitation: Priest, at pp. 543-45. Particular restraint is called for in criminal cases because prolonged incarceration can push non-criminalized individuals towards criminality, and incarceration is more difficult for offenders who are not already criminalized. In my view, these considerations, while still relevant, do not have the same currency with respect to shorter periods of incarceration imposed for regulatory offences that inherently do not carry the stigma of criminalization.

[78] This is particularly so in sentencing for OHSA offences, where, as Laskin J.A. observed in Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, 119 O.R. (3d) 1, at para. 22, deterrence, and most notably general deterrence, is "the most important sentencing principle". Even in the case of first offenders, this sentencing priority should not be undercut by over-emphasizing rehabilitation or specific deterrence.

[79] There is nothing startling about this. Even in criminal cases involving youthful first offenders, where the need for general deterrence is pressing, incarceration may occur despite the usual focus on rehabilitation and specific deterrence: R. v. Currie, 2018 ONCA 218, 23 M.V.R. (7th) 16, at para. 12.

[80] Naturally, the absence of a history of offending is material in gauging a regulatory offender's degree of fault, and a prior good record is relevant in determining what is needed to achieve specific deterrence and rehabilitation. The point is that the "first offender" principle from Priest does not speak as loudly in the regulatory context as it does in criminal cases.

[81] There is a related, more general principle of restraint that is also to be considered. It is aptly described by Derrick J. in Nova Scotia Power, at para. 56:

The principle of restraint requires the sentencing court to apply a measured response in determining the sentence that best satisfies the purpose and principles of sentencing. In an occupational health and safety case this means that the fine imposed must be no greater than is required to meet the objectives of sentencing.

[82] I agree with Derrick J. that this criminal law principle, which can influence not only fines but also the need for and the length of incarceration, applies as much in sentencing for regulatory offences as it does in the criminal sphere. It reflects the inherent notion of fairness that although sentencing must at times occur in the public interest, punishment should not be more aggressive than the public interest requires. As this more general proposition was put by Rosenberg J.A. in Priest, at p. 544, "it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances", and that "an offender should not be deprived of liberty 'if less restrictive sanctions may be appropriate in the circumstances'."

(3) The primacy of fines over incarceration

[85] In my view, the rarity of incarceration for regulatory offences is a descriptive observation, not a prescriptive one. In other words, recognizing that incarceration is rare is factually correct, but going beyond the principles of restraint and parity and using the rarity of incarceration as an independent sentencing principle that influences a sentencing outcome is an error.

[86] The reason why fines are typically imposed in regulatory prosecutions is that fines tend to be sufficient to achieve the deterrence required. When this fact is combined with the general principle of restraint just described, and with the principle of parity, the natural outcome is that sentences of incarceration are not apt to be common. However, the proposition that "incarceration is rarely imposed" for regulatory offences is not a principle of sentencing.

[87] As indicated, the Crown argues that the appeal judge erred in this case by treating incarceration as per se unfit for first offenders, as a matter of principle. Although I think the Crown has overstated the appeal judge's position, I agree that in this case the appeal judge did give undue emphasis to the rarity of sentences of incarceration in arriving at the sentences he imposed.

[89] In my view, the appeal judge should not have used the rarity of sentences of incarceration as a reason not to impose one.

[87] Mr. Snell noted that Gushue was convicted of two offences of operating without registration under the Travel Industry Act. She committed regulatory offences in contravention of a public welfare statute. Deterrence, general and specific, are the primary sentencing factors to be achieved, as set out in R. v. Cotton Felts Ltd.. For that reason the prosecution submitted that a custodial sentence in the range of four to six months was appropriate and indeed required in preference to any non-custodial sentences, together with probation to prevent any recurrence of these offences.

[88] The Crown stressed paragraph [116] of R. v. Wholesale Travel Group Inc., which provides that regulatory schemes can only be effective if they provide for significant penalties in the event of their breach.

[89] In weighing out mitigating circumstances the most significant one is Gushue's lack of any prior record. While there was no guilty plea in mitigation of any sentence to be imposed, the fact that Ms. Gushue put the Crown to its proof is otherwise irrelevant to the question of sentence.

[90] A preliminary analysis of aggravating features can begin using the factors set out at paragraph [19] of Cotton Felts, including: (i) the scope of the economic activity in issue; (ii) the extent of actual and potential harm to the public; and, (iii) the maximum penalty prescribed by statue.

[91] Dealing with the scope of the economic activity in issue, these trips were not the product of a business plan. They were extemporaneously suggested and implemented by Gushue. But, as noted before, she was the motivating force behind these trips and she pursued the sale of these trips vigorously, even when her ventures were failing. More significantly, she controlled all of the monies that she received from her sales. The total losses that she caused were, according to Mr. Snell's latest computation of those losses as confirmed by documentation provided to TICO, $65,150.44 as a result of victimizing 104 people.

[92] So, the scope of this economic activity was substantial but far from huge. People who cancelled in time did not get refunds from her as contracted for and people who did take the Bahamas trip did not get what they paid for. The trip that was delivered was not the trip as advertised. Those travellers did not get the amenities contracted for and they were only provided a one-way flight to Florida with no return flight home.

[93] Likewise, the extent of the actual and potential harm to the public was limited to the people she dealt with and there was no direct or express physical harm that was engaged. The loss to her victims of the Hawaii trip was absolute and complete, however. Her Hawaii victims lost $45,100.00 and received no value for their money whatsoever. The Bahamas trip victims got something for their dollars but much less than was promised and at a significant psychological cost to themselves. As noted, foremost among their losses, they had to fend for themselves and find their own way home from Florida at their own cost.

[94] It is a further significantly aggravating feature of her crimes that she did not hold these monies in trust but rather, mingled them with her own accounts and effectively treated the money as hers.

[95] It is a further aggravating feature of her offences that they continued from September of 2016 through to February of 2017 and that she was continuing to promote the Hawaii cruise when the Bahamas cruise was failing.

[96] So far as penalty is concerned, the maximum penalty for an individual convicted of an offence on the Travel Industry Act is a fine of not more than $50,000.00 or imprisonment for a term of not more than two years less a day, or both. Clearly, these are significant potential penalties.

[97] I am of the view that Karen Gushue's moral wrong-doing is quite aggravated in all of these circumstances. She wilfully pursued the sales of trips that she was not entitled to sell. She appropriated the monies that she received to herself and did not keep them in trust for the people she sold to. She aggressively sold trips and continued to sell them when she knew that she could not deliver on her promises. To hide her default, she schemed and lied to people who were once her friends and fellow Legion members.

[98] Upon being discovered and prosecuted she ostensibly now claims that it was all a mistake, all a series of unfortunate incidents which were merely the product of her desire to be helpful to people, compounded by her inability to say no to people in need.

[99] I reject those submissions. As noted above, those submissions are belied by her actions, her statements and the evidence adduced, some of which I have identified earlier in these reasons. In addition, the formality of the contracts that she required all of her victims to sign puts the lie to her protestation that she was merely being a volunteer and got in over her head.

[100] As noted in New Mex, the primacy of fines over jail in regulatory offences is descriptive but not prescriptive. I am of the view that Gushue's offences of acting as a travel agent without being registered under the Act caused all of the losses that occurred. She failed to hold the monies she collected in trust and failed to apply those funds to the benefit of those she sold trips to, as she would have been obliged to do as a registrant under the Act. Further, not being a registrant precludes TICO from providing any protections and refunds to Gushue's victims. That was the purpose of this social welfare legislation; i.e., to protect the travelling public against consumer losses and to mitigate those losses, where losses are unavoidable.

[101] This is a case of aggravated moral-wrongdoing by her. I agree with Mr. Snell that the pure regulatory aspects of her misconduct require a strong deterrent message generally and to Gushue specifically, given the lax and irresponsible way that she dealt with other peoples' money.

[102] During her submissions to sentence, Ms. Gushue appeared to imply that she was a victim in all of this, a mere volunteer who was hard-done-by by the Legion. For reasons previously set out, I reject any such implication and certainly do not draw that conclusion.

[103] In his submissions, the Crown made it clear that he was merely dealing with Gushue's regulatory delicts, her acting as a travel agent and selling vacations while not being a registrant. But what Mr. Snell stressed is that when Gushue found herself in some difficulty, she then chose how to deal with it. She chose to be dishonest about it.

[104] When she determined that she could not deliver the Bahamas trip as she sold it, she chose to misrepresent to and to mislead her consumers as to why it was not being delivered as promised. This trip as promised was failing in December yet she said nothing to anyone until almost two months later and continued to carry on in December as if her victims were going to get the trip that she had sold to them.

[105] She represented that the legion would get a benefit from the sales of these trips which was clearly untrue. She used the goodwill of the Legion's members to promote these trips and controlled the monies that she obtained in doing so.

[106] Gushue lied liberally and easily, to her victims. Among the many lies that she told her victims was that she changed cruise lines only to get "perks" and that she did not transfer their bookings from NCL. She repeatedly promised to but did not and has not paid refunds to those of her victims who cancelled in a timely manner as provided for by the contract that she had them sign and that she signed. Moreover, she continued to promote and sell the Hawaii trip at the same time as she could not deliver the Bahamas trip, which was failing.

[107] I note that Ms. Gushue has repaid $15,000.00 of the $65,000.00 of losses, (approximately), that she caused. I have taken that into account in crafting the sentences I am about to pronounce.

[108] I note further that Ms. Gushue is still subject to bail terms respecting the fraud over $5000.00 charge or charges that she is facing which arise directly out of these vacation package sales and that she has been committed to stand trial on that count or counts. In addition, I am aware that she was recently committed to stand trial on other fraud related counts, which the Crown in that case submitted had a relationship to the monies that she received from her victims as a result of her sale of these vacation packages.

[109] Given that those outstanding charges that are currently in the Superior Court of Justice in the set date stage and given that Ms. Gushue remains at large on release orders with respect to both prosecutions, I do not feel that probation is a necessary component of sentence on these convictions.

[110] Likewise, given the potential prospect of restitution orders being made in one or both of those proceedings, I do not intend to make any further restitution orders.

Imposition of Sentence

[111] On Count No. 2, I impose a sentence of 75 days jail to be served intermittently on terms to be pronounced momentarily.

[112] On count No. 1, I impose a jail sentence of 45 days concurrent and also to be served intermittently.

[113] In my view probation is unnecessary, other than while serving the intermittent sentences. Moreover, I reiterate that any further formal restitution orders can be left to the Criminal Courts should a Criminal Code conviction issue on the fraud allegations, in due course.

Dated at St. Catharines this 13th day of December 2019

J.S. Nadel, (OCJ)