Court File and Parties

COURT FILE NO.: 13-064

DATE: 2014/06/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID R. J. REGNIER

Counsel:

Elaine Evans, counsel for the Crown

Terry G. Mazerolle, counsel for the Accused

HEARD: May 13, 2014

REASONS FOR SENTENCE

pelletier, j.

[1] Mr. David Regnier has pleaded guilty to a total of 28 fraud and fraud related charges in connection with the events of July 14, 2008 to September 22, 2012. The majority of the offenses were committed in 2011 and 2012.

[2] The charges relate to a series of transactions whereby Mr. Regnier obtained, from the various victims, sums of money ranging from $2,000.00 to $75,500.00 under pretext of being engaged in the production of two films. The element of fraud in the present case derives from Mr. Regnier overstating the prospects of the victims realizing significant profits from their investments, when in fact the bulk of the money collected was spent by Mr. Regnier in what is described in a lavish and luxurious lifestyle. Mr. Regnier’s crimes are rather peculiar; money totalling $296,250.00, collected ostensibly to produce, promote and market two feature films was, in some measure, used to advance those purposes, but more significantly, was spent by Mr. Regnier on travel, clothing, parties, rental of high end motor vehicles and other personal expenses. The victims ranging from close family members, to friends and acquaintances, have not been compensated.

[3] The charges are contained in 3 separate indictments, #13-160 from Durham region; #13-161 from the Toronto region; and #13-064 from Cornwall and Cobourg. The victims and the loss they suffered is as follows:

Indictment 13-160 – Durham Region:

− Fabio and Lisa Politano, introduced to Mr. Regnier by a mutual friend, Geoff Daye, $15,000.00;

− Geoff Daye, a friend of Mr. Regnier’s, $5,000.00;

− Jeff Shaw, a friend of Mr. Politano’s, $5000.00 and

− James McKeag, a friend of Mr. Daye’s, $10,000.00.

Indictment 13-161 – Toronto Region:

− Ahmad Iqbal, who met Mr. Regnier at an entrepreneurial event in Kingston, $12,000.00;

− Muhammad Iqbal, Ahmad Iqbal’s son, $25,000.00;

− Muhamid Asif, a friend of Ahmad Iqbal, $5,250.00;

− Rahat Malik, introduced to Mr. Regnier by Ahmad Iqbal, $5,000.00; and

− Brandon Sobel, also introduced to Mr. Regnier by Mr. Iqbal, $20,000.00.

The Durham region indictment also includes a charge of possession of money obtained by the commission of an indictable offense, in relation to the transactions mentioned above.

[4] Indictment 13-064, Cornwall and Cobourg charges:

− Robert Regnier, David Regnier;s uncle, $75,500.00;

− Richard Regnier, also David Regnier’s uncle, $19,500.00;

− Shondra Stabler, an acquaintance from Loyalist College, $5,000.00;

− Bruce Smith, an acquaintance of Mr. Regnier’s, $10,000.00;

− Terry Fontaine, whom Mr. Regnier approached while canvassing local businesses, $15,000.00;

− Lindsay Stevenson, who met Mr. Regnier through her brother, Nicholas Briere, $5,000.00;

− Suzanne Briere, who met Mr. Regnier through her son, Nicholas Briere, $5,000.00;

− Sarah Proulx, Mr. Regnier being a former client of her hair salon, $5,000.00;

− David Michaud, who met Mr. Regnier through a mutual friend, Mike Pilon, $5,000.00;

− Monika Jacob and Richard Lamoureux, also mutual friends of Mike Pilon, $10,000.00;

− Wayne Quenneville, also a friend of Mike Pilon’s, $5,000.00;

− Lisa Barbier, whose sister Jessica Kibbee had dated Mr. Regnier, $10,000.00;

− Robin and Tina Hilton, who met Mr. Regnier through Mrs. Hilton’s cousin, $5,000.00;

− Helene Rehel, who heard of Mr. Regnier and his enterprise through friends, $4,000.00;

− Michel Bourdon, who never met Mr. Regnier but had seen him at a comedy club and had been told by friends of his venture, $5,000.00;

− William Reid, who met Mr. Regnier as a result of an eBay transaction, $8,000.00;

− And Catherine Peeling, introduced to Mr. Regnier by a mutual acquaintance, $2,000.00.

This last indictment also includes a charge of personation.

[5] As mentioned, the three indictments, representing 28 charges to which Mr. Regnier has pleaded guilty, involve 23 individual victims and 3 victim couples, whose losses total $296,250.00 in sums ranging from $2,000.00 in the case of Ms. Peeling to $75,500.00 in the case of Mr. Regnier’s uncle Robert.

[6] It is not disputed that Mr. Regnier was, to some extent, involved in the entertainment industry. He was a comedian who had performed in various clubs at different times. It is also common ground that Mr. Regnier did produce, in a sense, an initial feature film, “My Date with Hugh” chronicling his efforts to associate himself with the Playboy enterprise. Mr. Regnier appeared on an episode in the third season of the CBC television show, “Dragon’s Den”, in order to promote his film and attract investments. The movie was produced and has aired on a CBC channel devoted to emerging artists. The movie was never sold nor has it generated any profits. The movie was completed, primarily through the efforts of a Toronto-based film editor and was transformed, by this individual into a documentary about Mr. Regnier’s largely unsuccessful attempts to produce the movie in its original conception. The film editor who completed the film stated, in an email communication to the investigators:

“As I continued to review the footage it became clear that absolutely zero thought or planning had gone into the production of My Date with Hugh. The footage was shot without any regard for a potential audience, with a cheap, aged camera, handheld and shaky, nearly inaudible sound, and no story structure. I can tell you from experience as a director and producer that there is no way that it could have cost $5000 (travel included), let alone tens of thousands of dollars to produce that footage.”

[7] Mr. Regnier’s exposure did however provide him with a platform to sell his next project, a movie with the working title “Celebrity” which would chronicle his rise from obscurity to fame in the American entertainment industry. It is in the context of his fundraising activities for this project that Mr. Regnier lied about his business contacts, lied about the financial success of “My Date with Hugh” and mislead investors into believing that they would be eligible to receive 3.5 times the amount of their initial investments once “Celebrity” was produced and marketed, while providing that their initial investment was secured. This second film was never produced. The bulk of the money collected for that purpose was spent by Mr. Regnier in order to promote his image and portray himself as a successful movie producer. A document entitled “Letter of Investment” presented to prospective investors is very revealing in this connection. It reads as follows:

“Letter of Investment

The Project

What does it take to be a celebrity? Can anyone do it? How is celebrity life different than ours? What do they do to stay a celebrity? This hilarious story will follow some of Hollywood’s biggest stars to see what they go through in a regular day.

David Regnier (DAVE) is creating and producing an independent feature film entitled “Celebrity” (CELEBRITY). The film follows Dave, a “regular joe”, from a small Canadian town, as he journeys across America spending time with well-known celebrities getting a feel for Hollywood life. Still in early stages, the film has received a lot of support from the industry, with Drew Barrymore, Jay Leno, Ryan Reynolds, Lliza Shlesinger, and many more celebrities already confirmed to be part of the project. The project will be undertaken by DAVE’s production company, Dave Regnier Productions. An investment opportunity is available to qualified investors seeking to directly support the film’s operating, production, editing, and hence benefit from any and all commercial exploitation.

Declarations

1. All of DAVE’s costs and transactions (to the best of his knowledge) related to the Project must and will be supported by financial records based on standards set forth by the Canada Revenue Agency and in compliance with the Canadian Generally Accepted Accounting Principles.

2. DAVE owns any and all copyrights and trademarks related to CELEBRITY and DAVE has secured all necessary rights to exploit the film in any and all media anywhere in the world and has obtained all necessary permissions from the copyright owners of its underlying work.

3. The film and all uses thereof do not and will not, violate or infringe any trademark, trade name, patent, copyright or other proprietary right of any other person or entity or breach any privacy or rights of any person or entity or constitute a defamatory, slanderous or otherwise harmful statement.

4. DAVE is the sole artistic authority on and over its content and production of the film. No other body has say in the production or editing of the film. All Final decision including its sale terms will be made by DAVE.

Investments Stipulations

1. Qualified and participating Investors are entitled to 3.5 times their investment returned to them when the film is sold and funds are received. The return on the investment will be calculated in accordance with Canadian Generally Accepted Accounting Principles.

2. DAVE will secure the qualified participant’s investment. DAVE will return 100% of the investment if the film fails to sell to a distributor or encounters delays that will exceed the investment agreement expiration date of November 30^st, 2011.

3. The film will be made available to distributors during filming. Payment of the investment return will be made to all investors once the film has sold to a distributor and payment from the distributor has been received. Payment will be made from DAVE to the investor prior to the investment agreement expiry date of November 30^st, 2011.

Dave Regnier’s Background

Dave Regnier has been a comedian for 7 years, touring cities across Canada and the U.S. He received his big break on the third season of CBC’s Dragons’ Den, when he pitched his highly anticipated documentary “My Date with Hugh” which hurled all five Dragons into a bidding war. He sealed the deal with his now close friend Brett Wilson. His debut comedy album “Dirty Talkin” was released on iTunes and Amazon, early 2010, resulting in 5000 downloads in a matter of weeks. Throughout his career, Dave has been personally mentored by his comedy idols, Dane Cook and Carrot Top, among others; most of which will be making an appearance in his upcoming documentary “My Date with Hugh”. In an effort to pay it forward, Dave Regnier mentors and promotes other up and coming comics by signing them to Dave Regnier Productions. Dave is also currently working on a sitcom pilot for a major US network and is involved in a high budget US based reality show.

Investment Details

Participating Investor Information

Name_______________________________________________________

Address_____________________________________________________

Contact Number______________________________________________

Email Address________________________________________________

Investment Information

Investment Amount ___________________

Method of Payment____________________

Date of Investment____________________

Disclaimer

As a participating Investor, I agree to invest ____________ in DAVE and the CELEBRITY project based on the stipulations detailed in the investment letter. I understand that DAVE will secure my investment, again based on the investment letter. I also understand that my entitlement is 3.5 times my initial investment and once the returned is paid I am promised no other funds. Payment is made to Dave Regnier (DAVE). By signing and dating below, I agree to all the terms and conditions set forth in the Investment Letter and this Disclaimer.

Participating Investor Signature Date of Signature

David Regnier (DAVE) Signature Date of Authorization”

[8] Mr. Regnier made a series of false statements to various victims at various times in order to raise their level of trust in his projects. He falsely stated that his first film had sold for several hundred thousands of dollars, that he had received major awards as a comedian, that he was involved as a comedy writer for a well-known American comedy show, that several renowned entertainers endorsed his projects and that substantial funds were required to pay expenses already incurred or expenses associated with pursuing his new ventures.

[9] Mr. Regnier succeeded in attracting several investors and was able to pay certain investors, once deadlines were exceeded and payment was insisted upon. Those payments were made from funds received from subsequent investors. In this connection, Mr. Regnier’s fraud has been accurately described in the Crown brief synopsis, exhibit 1, as a form of Ponzi scheme; remaining ahead of disgruntled investors by attracting others, all the while converting some if not most funds collected to an unintended use, usually for personal gain or leisure. Mr. Regnier’s scheme caught up to him in the summer of 2012 when several complaints were received by various police agencies in this area and elsewhere.

[10] It is against this rather peculiar factual backdrop that Mr. Regnier is to be sanctioned through a fit and proper sentence which places in appropriate priority the objectives and principles of sentencing including denunciation, deterrence, separation of the offender from society where necessary, rehabilitation, restitution and the promotion of a sense of responsibility. The sentence must strike an appropriate balance between the aggravating and mitigating factors and, as always, must employ the least restrictive measures available which meet the sentencing objectives. Counsel for Mr. Regnier recommends a sentence which would include a period of incarceration followed by a term of house arrest, in the form of a conditional sentence, not to exceed 12 months in total, as well as a period of probation and compensation orders. Crown counsel submits that a period of imprisonment of 2 to 3 years is required to address the underlying sentencing principles of deterrence and denunciation and give due consideration to the many aggravating factors. Compensation orders are similarly sought by the Crown in addition to a prohibition from engaging in activities where managing the funds of others are involved.

[11] Among the mitigating factors presented are the absence of any prior convictions for fraud or otherwise, contrition and the recognition of the harm caused as demonstrated by the guilty plea, family support, at least from certain members, as well as community support.

[12] A willingness to submit to restitution orders in the full amounts for each victim is also argued by the defence as a positive measure and a sign of remorse.

[13] The aggravating factors include the global amount of the fraud, the duration and number of individual transactions, greed as the sole motivating factor in relation to the amounts converted to Mr. Regnier’s personal use, and the significant impact on each of the victims who have chosen to express the impact upon them, most notably Mr. Regnier’s two uncles who have expressed emotional and financial devastation caused by the actions of their brother’s son.

[14] In this connection, the crimes committed by Mr. Regnier involve a significant breach of trust element.

[15] Mr. Regnier’s remorse is said to be doubtful. The Crown submits that his statement to the Court during the sentence hearing was replete with references to the impact that the charges have had on him and devoid of any sincere expression of concern or empathy for the victims.

[16] Mr. Regnier has filed a series of 8 letters of reference from family members and friends. They speak of Mr. Regnier as a kind and considerate person, close to his family and generally well regarded in the community.

[17] Reputation and community support must however be measured cautiously in circumstances where those very elements of the offender’s character facilitated the frauds by the exploitation of the trust and in some cases, love and affection extended by others to the offender.

[18] Counsel have been very helpful in their submissions and in providing the Court with the relevant authorities in the sentencing of persons guilty of fraud on a certain scale.

[19] A number of cases cited refer to the element of breach of trust. This particular offense involves an element of breach of trust in two senses. Firstly, the funds invested by the various victims, mostly of fairly modest means, was intended for a specific purpose; the development and creation of a particular film project. To that extent, the money was to be held in trust in order to achieve the specific intended purpose. It was not, as Mr. Regnier used the majority of the funds more in an attempt at self-promotion and for expenses associated with a lifestyle he would aspire to. This particular breach of a fiduciary duty is present in most fraud cases.

[20] Secondly, the breach of trust element is present inasmuch as Mr. Regnier exploited his personal and family ties in convincing potential investors of his past and prospective successes. In this connection, the trust extended and violated, particularly in the case of close family members, is a particularly aggravating feature of the present case.

[21] Courts have repeatedly stressed the need for deterrent and denunciatory sentences in cases of large scale, breach of trust fraudulent transactions.

R. v. Bogart (2002) 2002 CanLII 41073 (ON CA), 167 C.C.C. (3d) 390 (Ont. C.A.) leave to appeal refused [2002] S.C. C.A. No. 398

R. v. Scott [2007] O.J. No. 1154 (C.A.)

R. v. Phronimadis [2006] O.J. No. 3992 (C.A.)

R. v. Taipow 2005 CanLII 39666 (ON CA), [2005] O.J. No. 4643 (C.A.)

R. v. Dobis (2002) 2002 CanLII 32815 (ON CA), 163 C.C.C. (3d) 259 (Ont. C.A.)

[22] While an available sanction for the present offenses when they were committed, a conditional jail sentence usually results from the presence of exceptional mitigating circumstances such as crimes committed by persons afflicted with significant mental health issues, overriding addictions to gambling or addictive substances, or advanced age and very poor physical health, all of which could tend to render an actual jail sentence disproportionately harsh in those specific situations.

R. v. Bunn (2000) 2000 SCC 9, 140 C.C.C. (3d) 505 (S.C.C.)

R. v. Burkart (2006) 2006 BCCA 446, 214 C.C.C. (3d) 226 (B.C.C.A.)

R. v. Tulloch [2002] O.J. No. 5446 (S.C.J.)

[23] In a very helpful review of sentencing principles in cases of large-scale frauds, Hill J. in R. v. Williams 2007 CanLII 13949 (ON SC), [2007] O.J. No. 1604 (S.C.J.) summarizes those principles as follows, at para. 30-33:

“30. By way of overview and non-exhaustive list only, certain circumstances have, over time, been recognized as aggravating factors in “white collar” breach of trust cases:

(a) The nature and extent of the loss: R. v. Savard (1996), 1996 CanLII 5703 (QC CA), 109 C.C.C. (3d) 471 (Que. C.A.) at 474. The amount of the theft or fraud is one factor only: R. v. Clark, at 4; R. v. Barrick, at 82.

(b) The dishonest attainment of public monies is a serious crime with its own effects even though the institution, on its face, seems able to bear the loss: R. v. Bogart, at 396: R. v. Coffin, at para. 46.

(c) The degree of sophistication of the dishonesty and the degree of planning, skill and deception: R. v. Dobis, at 272; R. v. Clarke, at para. 18; R. v. Wilson, at para, 8; R. v. Steeves and Connors, at 285, 287; R. v. Savard, at 474; R. v. Downey, [2003] O.J. No. 4997 (S.C.J.) at para. 55 (aff’d [2005] O.J. No. 6301 (C.A.)).

(d) Whether the sole motivation is greed: R. v. Savard, at 474; R. v. Clark, at 5; R. v. Steeves and Connors, at 285, 287.

(e) A lengthy period of dishonesty: R. v. Dobis, at 270; R. v. Wilson, at para. 8-9; R. V. Clarke, at para. 18; R. v. Harding (2007), 2006 SKCA 118, 213 C.C.C. (3d) 543 (Sask. C.A.) at 548; R. v. Reid, at para. 15; R. v. Coffin, at para. 47; R.. v. Steeves and Connors, at 285, 287; R. v. Leaf, [2007] EWCA Crim 802 at para. 14-15; R. v. Gulam et al., [2006] EWCA 2320 at para. 11.

(f) The number of dishonest transactions undertaken in the commission of the offence: R. v. Smith, 2004 CanLII 33793 (ON CA), [2004] O.J. No. 4179 (C.A.) at para. 5-6; R. v. Wilson, at para. 9; R. v. Harding, at 548; R. v. Coffin, at para. 47; R. v. McKinnon, at para. 47.

(g) Where there exists little hope of restitution: R. v. Reid, at para. 15.

(h) The offender was caught as opposed to voluntary termination of the criminality: R. v. McKinnon, at para. 47; R. v. Steeves and Connors, at 287; R. v. Gauthier, at 186-7 (dissent); R. v. Gulam et al., at para. 9.

(i) Running the risk that others would fall under suspicion: R. v. Gulam et al., at para. 3.

(j) The impact on victims of the fraud including members of the public, the employer and fellow employees: R. v. Dobis, at 270; R. v. Reid, at para. 3; R. v. Paul, at para. 16.

(k) The “quality and degree of trust reposed in the offender”: R. v. Barrick, at 82.

31. In addition to the usual factors mitigating sentence, such as first offender status, a plea of guilt, cooperation and assistance with the authorities, impact of incarceration on a third party as in Bunn, other circumstances in breach of trust fraud cases can serve to ameliorate the harshness of the disposition to be imposed:

(a) “[S]ubstantial recovery” of the proceeds of the dishonest conduct: R. v. Wilson, at para. 9; R. v. Nichols, 2001 CanLII 5680 (ON CA), [2001] O.J. No. 3220 (C.A.) at para. 47, 49 (leave to appeal refused [2001] S.C.C.A. No. 508).

(b) The pre-sentence making of restitution is a mitigating factor: R. v. Pavich, 2000 CanLII 16971 (ON CA), [2000] O.J. No. 4209 (C.A.) at para. 2; R. v. Bogart, at 400; R. v. McKinnon, at para. 22, 88-92; R. v. Francis [2000] O.J. No. 5043 (C.A.) at para. 2; R. v. Clark, at 5.

(c) Where the dishonesty resulted in personal benefit to the accused, was there a motive mitigating the breach of trust, whether a medical condition, or addiction, or other motivating cause existing other than greed or financial gain: R. v. Poutney, at para. 1, 3; R. v. Davies (2005), 2005 CanLII 63757 (ON CA), 199 C.C.C. (3d) 389 (Ont. C.AS.) at 399-401; R. v. Bogart, at 400; R. v. McKinnon, at para. 47; R. v. McIvor, at 286-7; R. v. Harding, at 548-9; R. v. Gulam et al., at para. 8; R. v. Barrick, at 82; R. v. Clark, at 4.

32. A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for her crime: R. v. Proulx, at para. 113; R. v. Valle-Quintero (2002), 2002 CanLII 45123 (ON CA), 169 C.C.C. (3d) 140 (Ont. C.A.) at 164; R. v. A.(K.) (1999), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.) at 570; R. v. Downey (S.C.J.), at para. 61.

33. A fundamental principle of sentencing is reparation for harm done (s. 718(e)(f) of the Code). Restitution is a discretionary order. The amount of the loss must be clearly calculable. A factor, though not a determinative factor, in considering the reparation of a restitution order, is an assessment of the means of the offender to meet the obligations of court-ordered restitution: R. v. Chambers, [2007] O.J. No. 1198 (C.A.) at para. 2; R. v. Taylor (2003), 2003 CanLII 16380 (ON CA), 180 C.C.C. (3d) 495 (Ont. C.A.) at 497; R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.) at 246-7; R. v. Biegus (1999), 1999 CanLII 3815 (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A. at 249-251.”

[24] In Williams, the accused, a school board superintendent defrauded her employer by creating false claims payable to a fictitious company. The total loss was $195,000.00, converted by the accused to her personal use. Following a conviction after trial, the 60 year old offender, suffering from depression and the obvious loss of her employment, was sentenced to 18 months incarceration and ordered to make restitution.

[25] A similar sentence was imposed in R. v. Lall [2007] O.J. No. 5213 (S.C.J.) Durno, J. upon the guilty plea of a first offender for the offense of defrauding the Canada Revenue Agency of $143,000.00 through the filing of tax returns for deceased or non-existent persons. The accused suffered from a gambling addiction and had the sole care of his elderly mother. A conditional sentence was declined given the nature of the offense including the amount and repetition of the fraudulent acts as well as the need for a sufficiently denunciatory and deterrent sentence.

[26] Both Williams and Lall dealt with breach of trust in relation to public funds perpetrated by public officials.

[27] An 18 month sentence was imposed in R. v. Bogart 2002 CanLII 41073 (ON CA), [2002] O.J. No. 3039 (C.A.) in which a physician submitted false billings over a 7 year period thereby defrauding the Ontario Health Insurance Plan of nearly one million dollars. The accused, a respected psychotherapist operated a practice which, assisted, in large measure HIV positive and AIDS patients, and had helped establish the world’s first AIDS hospice in the 1980s. Despite the plea of guilty and the absence of any prior convictions, a jail term was deemed necessary to achieve the objectives of deterrence and denunciation.

[28] Exceptional circumstances which may compel the imposition of a conditional sentence such as a relatively small scale fraud, ill health or advanced age were not present.

[29] In R. v. Castro 2010 ONCA 718, [2010] O.J. No. 4573 (C.A.) a paralegal who converted over $140,000.00 of his clients’ trust funds to his personal use was sentenced after trial to 23 months incarceration and ordered to make restitution. The appeal dealt primarily however with the issuance of the compensation order, which is not in dispute in the present case.

[30] A number of reported cases establish higher sentence ranges where the loss is more significant and the scheme resulting in the loss is more elaborate and deliberate. A number of these decisions have been conveniently summarized in R. v. Vinski 2014 ONSC 2332, (S.C.J.) a January 29, 2014 decision of Durno J. Those decisions include R. v. Sanmugam 2012 ONSC 6663 (S.C.J.) 5 years imposed concerning a one million dollar fraud committed against an elderly couple, depriving them of their entire savings;

R. v. Khatchatourove and Resnick 2012 ONSC 3511 (S.C.J.) four years’ incarceration in connection with a $900,000.00 fraud involving the manipulation of the identities of persons immigrating to Canada in fraudulent mortgage schemes.

R. v. Palantzas [2009] O.J. 3862 (S.C.J.) 4 years imposed on a bank manager who, over the span of 7 years, opened 37 loan accounts in the names of 22 innocent persons. Signatures were forged and money, totally $819,000.00 was withdrawn from the accounts.

R. v. Clarke 2004 CanLII 7246 (ON CA), [2004] O.J. No. 3438 (C.A.) 3 ½ years’ incarceration for an unsuccessful attempt, by a bank employee to divert 20 million dollars from the investment accounts of bank clients;

Finally, R. v. Nichols (2001) 148 O.A.C. a 4 year sentence imposed upon an individual who convinced an elderly woman to invest one million dollars in a fictitious scheme.

[31] The defence has provided a number of cases involving significant amounts of money defrauded, by various means, where conditional sentences or suspended sentences have been ordered. The cases include R. v. Kim [2012] ONCJ 508 (O.C.J.) and R. v. Taylor-Wright [2010] O.J. No. 4578 (O.C.J.).

[32] A joint recommendation for a conditional sentence had been made in R. v. Kim, in relation to a $220,000.00 fraud where one half of the money taken had been repaid before sentencing, and the offenses had been committed while the offender was suffering from a significant psychiatric disorder.

[33] In Taylor-Wright, the prosecution had sought a jail term of 6 to 12 months on a lengthy conditional sentence in relation to a $75,000.00 insurance fraud committed by a person suffering “debilitating medical problems” which had imparted on her ability to care for herself and her family. The Court acceded to the defence request for a suspended sentence and probation for 18 months.

[34] I pause to observe that the examination of sentencing case law in the assessment of a fit and proper sentence is not conducted with a view to discovering the case which most closely resembles the case at bar in order to apply the same or a closely resembling sentence. Such an exercise would prove futile. Each case is distinguishable. As observed by Hill J. in Williams, at para. 36 “while the appellate jurisprudence provides general frame work guidelines to assist trial judges towards consistency, the imposition of a fit and just sentence remains a discretionary and highly individualized exercise”.

[35] In R. v. Vinski, Durno J. expressed the same notion in the following terms, at p. 35 “As is readily apparent, there are wide variations in the sentences imposed for this offense. The ranges noted by the Court of Appeal are a first step in the analysis because they are generally determined considering only the objective seriousness of the offense. Once the range is determined, the sentencing judge then considers the aggravating and mitigating factors specific to the case to decide where within the range the sentence falls or whether the aggravating factors take it above or those in mitigation below.”

[36] From the review of the case law, I would conclude that while conditional sentences were available at the time of the commission of the various offenses by Mr. Regnier, the breach of trust, repetition, number of victims, and the global amount involved require, by way of denunciation and deterrence, a stricter sentence. That said, the weight of the authorities would suggest that that upon a guilty plea of a first offender in cases of fraud involving amounts similar to the case at bar, a higher end reformatory sentence, therefore a sentence of less than 2 years’ incarceration, is indicated.

[37] My conclusions are as follows:

Mr. Regnier continues to enjoy the support of a segment of his family and circle of friends despite his misdeeds. He is single, 35 years old, is a person of obvious intelligence with a realizable potential if properly pursued. He has no criminal record and has made it clear, through counsel, that this case has, since the beginning, been on what counsel has termed “the resolution track”.

[38] Mr. Regnier has a somewhat limited employment history and intends to return to the entertainment industry once his sentence is served. He consents to compensation orders in the full amounts involved. These are considerations that would tend to bring the sentence into the lower level of mid-range reformatory, perhaps as suggested by the defence.

[39] There are however a number of significant aggravating factors which have already been alluded to.

[40] The global amount misappropriated by Mr. Regnier was $296,250.00, a significant amount by any standards. The impact on the victims has been enormous. Personal savings have been depleted. Loss of confidence and trust has been experienced by most victims. Perhaps the most compelling example has been expressed by Mr. Regnier’s uncle Robert, who suffered a $75,500.00 loss. The effects of the fraud perpetrated against him are expressed in the following terms:

“This whole situation has had a very negative impact on all aspects of my life. It destroyed my trust in people and it caused my immediate family of ten siblings to pick sides. This resulted in me no longer having contact with six of my siblings.

I’m angry at the fact that David basically stole some of my children’s inheritance and he took away my planned retirement of wanting to travel and visit places in the world that I will never see now. All this has affected my mental and physical health. I now have to see a psychiatrist and rely on antidepressants just to get through the day. My nephew David has taken away my furture and made me feel like a fool. He’s taken away my dignity and left me with a level of anger that I may live with for the rest of my life.”

[41] Other victims have had to finance their losses through debt, adding to their existing debt load. In certain cases, the victims have had to forego plans including dental treatment or planned activities for their children.

[42] The frauds were perpetrated over a number of years and involved a total of 26 victims from Cornwall to Toronto. The pre-sentence report has some positive elements concerning Mr. Regnier’s past and his character, including community work on issues such as bullying.

[43] Mr. Regnier was subjected to some form of sexual abuse as a child. He is currently dealing with that unfortunate episode of his past. There is no suggestion that this aspect of Mr. Regnier’s personal history is relevant to the commission of the frauds or the sentence which should result.

[44] The pre-sentence report and Mr. Regnier’s statement to the Court during the sentence hearing however raise serious questions as to his level of remorse and concern for the plight of the victims, despite the plea of guilty. The element of breach of trust is present and is statutorily considered an aggravating factor, at s. 380.1 of the Criminal Code.

[45] Mr. Regnier did not cease his activities on his own, nor has he made any effort to compensate the victims thus far. His lies caught up to him and resulted in numerous complaints to the police. Following his arrest, in the Fall of 2012, he was released on fairly unintrusive bail conditions and has not chosen to seek employment since.

[46] Finally, Mr. Regnier was lured into an extravagant lifestyle, promoting himself and his own interests rather than applying the funds amassed towards their intended purpose. His motivation was greed and pure self-interest.

[47] I would conclude therefore that these offenses must attract a mid to high range reformatory sentence accompanied by other measures designed to compensate the specific victims and contribute to Mr. Regnier’s reparation to the community and in order also to promote a sense of responsibility for the offenses committed. The sentence shall therefore be a global jail term of 18 months incarceration, together with a period of probation of 3 years with conditions that will include the performance of 180 hours of community service work. There shall be restitution orders in favour of each of the victims in the amounts set out above. Mr. Regnier will also be prohibited, in accordance with s. 380.2 of the Criminal Code, 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. This prohibition will be for a period of 5 years from his date of release from prison.

[48] The sentence is therefore as follows:

On count 1, on indictment 13-064, 18 months’ imprisonment, to be followed by a period of probation of 3 years. The terms or probation are as follows:

1. Keep the peace and be of good behaviour;

2. Appear before the Court when required to do so by the Court;

3. Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation;

4. Report within 7 days of your release from custody to and be under the supervision of a probation officer;

5. Perform 180 hours of community service under the supervision and to the satisfaction of the probation officer, at a rate of not less than 10 hours per month upon the commencement of the probation order;

6. Attend for credit counselling or such other form of counselling or treatment as directed by the probation officer and comply with and complete such programs or counselling;

7. Provide written releases in order for the counselling and treatment programs to be monitored by the probation officer;

8. Not to communicate directly or indirectly with any of the named victims nor attend within 100 meters of their place of residence, employment, education or religious observance.

[49] Pursuant to s. 380.2, Mr. Regnier will be subject to a prohibition of the activities listed therein for a period of 5 years following his release from prison.

[50] Finally, restitution to each of the victims is ordered pursuant to s. 738 of the Criminal Code in the amounts set out in these reasons for sentence. The jail sentence as well as the period of probation will be concurrent on all counts to which Mr. Regnier has pleaded guilty.

Justice Robert Pelletier

Released: June 26, 2014

COURT FILE NO.: 13-064

DATE: 2014/06/26

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVID R. J. REGNIER

REASONS FOR SENTENCE

Justice Robert Pelletier

Released: June 26, 2014