Her Majesty the Queen v. Curtis Snow, 2015 ONSC 498

CITATION: R. v. Snow, 2015 ONSC 498

COURT FILE NO.: CR-14-06

DATE: 20150122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CURTIS SNOW

Defendant

Wesley D. Beatty, for the Crown

Self-Represented

HEARD: September 23, 24, 25, 26, 29 & 30, 2014, October 1 & 2, 2014, November 20, 2014, January 22, 2015

REasons for Sentence

E.J. Koke

Introduction

1Curtis Snow was charged with 38 counts of fraud and theft under sections 380(1) and 334 of the Criminal Code. The alleged crimes took place between 2001 and 2012. His victims included friends, family members, and cottagers who lived and/or vacationed in the vicinity of Sundridge, Ontario.

2Mr. Snow pled not guilty to all charges. The matter was tried before me over a period of eight days. Witnesses included the victims, the investigating police officers, and Mr. Snow’s bookkeeper. Mr. Snow did not call any evidence in his defence.

The Decision of the Court

Following a trial involving 38 counts on an indictment, Mr. Snow was found guilty of a total of 36 counts.

The Statutory Framework for Sentencing

3The statutory obligation imposed on the court by the Criminal Code requires that I consider the following factors when determining the appropriate period of sentence for an offender:

(a) the character of the offender;

(b) the nature of the offence, and

(c) the circumstances surrounding the commission of the offence.

4The principles and general purposes of sentencing codified in s. 718 and 718.2 of the Criminal Code are also relevant. Section 718 states:

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

(a) To denounce unlawful conduct;

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

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

(d) To assist in rehabilitating offenders;

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

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

5We will now review these factors.

Background

6Mr. Snow is a resident of the community of Sundridge, Ontario. Sundridge is located on Hwy 11, approximately half way between the town of Huntsville to the south and the city of North Bay to the north.

7In approximately 1999, Mr. Snow purchased a business known as Almaguin Automotive Ltd. and Marine, referred to herein as Almaguin Automotive, which was located on the main street of Sundridge. Almaguin Automotive specialized in the sale and servicing of small tools and equipment, such as chain saws and lawn mowers, and in the sale, servicing, and storage of outdoor recreational vehicles such as boats and motors, all-terrain vehicles (“ATV”s), and snowmobiles. After Mr. Snow assumed ownership of the business, he also started selling and renting larger construction and contracting equipment such as backhoes and loaders.

8Almaguin Automotive was a small business. In addition to Mr. Snow, it employed one or two mechanics and a bookkeeper, Mr. Peter Sanguinetti. Prior to October 2006, when he was elected to town council, Mr. Snow’s father Merlin also worked at the business most mornings.

9Mr. Snow grew up and attended school in the Sundridge area. He is well known in the community and he comes from a reputable family. He had previously worked in sales at a local business called Black’s Automotive and he was both knowledgeable about his products and personable. Because he sold boats, outboard motors and snowmobiles he also came to know many of the cottagers who frequented the Sundridge area.

10Most of the alleged frauds and thefts occurred in the context of Mr. Snow’s proprietorship of Almaguin Automotive. The business did not keep a separate bank account or ledger for trust monies or monies taken in as deposits on purchases. The evidence at trial confirmed that not long after Mr. Snow started his business he started to use the company bank account as his own personal bank account.

11During the years 2001 to 2012 Mr. Snow received monies, ATV’s, boats and equipment from various client customers as part of a series of business transactions and in the good faith expectation that they would have their monies or goods repaired and returned or, alternatively , that they would receive comparable value for their monies or goods.

12Mr. Snow possessed the gift of being able to give the people he defrauded the assurance and the comfort that he could be trusted. His customers included family members, friends, long-time cottagers and associates. The trust placed in Mr. Snow is evidence of the fact that his victims invariably advanced funds or goods without contracts in writing. Despite numerous demands having been made of him, he declined to return the money, ATVs, boats and equipment. When his victims would no longer accept his excuses and obfuscation, he simply stopped communicating.

13When asked why they would advance funds or equipment to Mr. Snow without a written contract, many witnesses indicated they trusted Snow and his excuses were plausible. Mr. Snow was well aware of the business he was engaged in and he was able to project an image of confidence and business savvy on his unsuspecting, often naïve, victims.

Summaries of Victims and Offences

14Mr. Snow’s victims and their advances of monies either as loans, deposits for the purchase of equipment or investments may be summarized as follows:

Donald Taylor equipment 30,000

bridge finance 80,000

personal loan 10,000

Dan Turnbull backhoe 20,000

equipment 15,000

snowmachine track 6,000

Stephenson franchise 40,000

13,000

1,200

Asphalt 11,000

Ice making 5,000

James Dodd SeeDoo deposit 3,200

Andre Dallaire Kabota Excavator 36,000

Alexander Duff ATV deposit 11,000

Jeffrey Lamb equipment 19,300

David Guthrie asphalt 3,000

Van purchase 6,000

5 ATVs 6,000

Short term loan 20,000

Steve Sitarz deposits 2 ATVs 3,200

John & Nancy Maynes short term loan 20,000

Jose Arruda deposit for ATVs 10, 484

Kent Trusses deposits for ATVs 12,400

Total: 381,784

15In connection with these amounts Snow returned monies as summarized below:

Donald Taylor return 3,000

Jeffrey Lamb return 2,200

David Guthrie return 3,000

Total: 8,200

16In addition to receiving monies as loans or deposits Snow also received a number of goods which were never returned to their rightful owners. These items and their values may be summarized as follows:

Donald Taylor boat for sale 4,000

James Dodd boat sale 2,441

Tracks and Wheels RTV 900 11,600

T1570 lawn tractor 3,030

Patricia Eades Yamaha Blaster 100

Susan Nicholls Rolling stock ATV 1,300

Alexander Duff Honda Motor 11,777

Total: 34, 248

17The various frauds and thefts committed by Snow took place over 10 years. The offences started with the November 2001 $30,000 loan to Donald Taylor and ending with the March 2012 $1000 payment by Terrence Fagan for an ATV which was never delivered.

Victim Impact Statements

18A number of victims filed victim impact statements. These statements emphasize the painful reality of the victim’s vulnerability; how Mr. Snow manipulated them and the unseen consequences of fraudulent behaviour upon victims and others involved. Time and again, the victims voice feelings of incomprehension at the betrayal and a loss of trust.

Position of Crown

19In this sentencing the Crown asks this Honourable Court to impose a sentence of 5 years real custody and to consider the following relief:

(a) The ordering of restitution

(b) The payment of a fine in lieu of Forfeiture

20In cases of large scale fraud committed by persons in positions of trust, the sentencing principles of general deterrence and denunciation are important. This is amply supported by appellate authority. For instance, in R. v. Bogart, 2002 CanLII 41073 (ON CA), [2002] O.J. No. 3039 the Ontario Court of Appeal held:

First, general deterrence is the most important sentencing principle in major frauds. Second, when general deterrence is "particularly pressing", as it is here, the preferable sanction is incarceration. This court has affirmed that in cases of large-scale fraud committed by a person in a position of trust, the most important sentencing principle is general deterrence. Mitigating factors and even rehabilitation become secondary. In R. v. Bertram and Wood (1990), 40 O.A.C. 317, this court observed that most major frauds are committed - as this one was - by well-educated persons of previous good character. Thus the court held at p. 319…The sentences in such cases are not really concerned with rehabilitation. Instead, they are concerned with general deterrence and with warning such persons that substantial penitentiary sentences will follow this type of crime, to say nothing of the serious disgrace to them and everyone connected with them and their probable financial ruin.

21In R. v. Savard 1996 CanLII 5703 (QC C.A.), (1996), 109 C.C.C. (3d) 471 (Que.C.A.) at 474[1], the court set out a useful framework respecting sentencing in a fraud case:

... These facts can be summarized as follows: (1) the nature and extent of the loss, (2) the degree of premeditation found, notably, in the planning and application of a system of fraud, (3) the accused's actions after the commission of the offence, (4) the accused'[s] previous convictions, (5) the personal benefits generated by the commission of the offences, (6) the authority and trust existing in the relationship between the accused and the victim, as well as (7) the motivation underlying the commission of the offences.

22As the Ontario Court of Appeal stated in R. v. Bertram and Wood, (1990) 40 O.A.C. 317 at para. 319, sentences in these types of cases are not concerned with rehabilitation, but rather operate to administer a warning that substantial penitentiary sentences will follow this type of crime.

23The case of R. v. Mavroudis, [2009] O.J. No. 3975 is instructive. In that case, Bourque J. of the Ontario Court of Justice imposed a 4 year sentence following a joint position on plea to a fraud amounting to $355,000. When asked to sentence on a further $126,000 fraud Bourque J. found:

6 The total of frauds is therefore $126,000. This is, by any yardstick, a considerable sum of money.

7 There is no evidence that any of these funds have been repaid.

8 On January 27, 2009, I sentenced the defendant to a term of imprisonment of four years, in addition to the pre-trial custody which he had already served, for three counts of fraud over $5,000 where the total amount of the combined frauds was $355,540. The sentence of four years was a joint submission.

24I believe that the total range of sentence for fraud offences of this type is in the range from four to six years.

25I believe that a total sentence, including all the counts of fraud (those from January 2009 and those before the court today), is five years.

Mitigating and Aggravating Factors

24The legislation requires me to look at the existence of any aggravating and mitigating circumstances in sentencing an individual.

25With respect to aggravating circumstances, the Crown asks me to consider the following.

(a) the scale of the fraud (over $400,000)

(b) the time frame over which the manipulations were carried out (10+ years),

(c) the breach of trust, (friends, family, long-time clients and associates)

(d) the fact that Snow’s charm, good character and position in society enabled him to commit crimes of this magnitude.

(e) that it was not a one-time impulsive act but rather a systemic method of appropriating money and value from friends, clients and associates.

(f) the funding of lifestyle purchases.

26Through their impact statements, Mr. Snow’s victims have eloquently and movingly made real the effect Mr. Snow’s crimes have had on them personally and on the community as a whole. They have lost a sense of trust in persons they would have otherwise trusted, and have become disillusioned with the value of friendship.

27I agree that these are aggravating circumstances in this case.

28Unfortunately, aside from the fact that Mr. Snow comes from a good family, and that he appears to be a committed parent and son and does not have a criminal record, there are few mitigating circumstances present.

29Throughout and to the end of trial, Mr. Snow remained defiant. He did not accept any blame. He insisted in cross-examining every single victim who gave evidence, and he blamed his bookkeeper for many of the losses which his customers sustained.

30A review of Mr. Snow’s pre-sentence report confirms that Mr. Snow continues to be in denial. After interviewing Mr. Snow, the author of the report contradicted a number of the assertions he made to her after interviewing subsequent persons.

31Mr. Snow’s failure to plead guilty or demonstrate genuine remorse is not to be considered as an aggravating factor. However, in the absence of remorse or acceptance of his wrongdoing I find it difficult to envision that Mr. Snow is a suitable candidate for rehabilitation, or for a conditional sentence. In the absence of a genuine expression of remorse I also find it difficult to believe that he will not re-offend after he is released from custody. Remorse therefore cannot be considered a mitigating factor in this case which helps Mr. Snow.

32I agree that general deterrence and denunciation are the primary considerations for me to follow.

33In summary, I find that Mr. Snow, a man who was surrounded by wonderful friends and close family members, chose to trade in the loyalty of these friendships and the affection and trust of his family members for short term material gain.

34I am sentencing Mr. Snow to term of imprisonment of 4 years, concurrent on all charges. In addition, I am imposing a free standing restitution order, pursuant to section 738.(1) of the Criminal Code. The amounts to be paid pursuant to this restitution order are the amounts referred to in paragraphs 14 through 16 of this decision.

E.J. Koke SCJ