Court File and Parties
Court File No.: CR-13-30000784-0000 Date: 2016-07-19 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Anna Clermont, Solange Fervius-Celine, and Jeanette Etienne, Defendants
Before: Michael G. Quigley J.
Counsel: Patrick Woods, for the Crown Andrew McKay, for Anna Clermont Alan Sobcuff, for Solange Fervius-Celine Christian Pearce, for Jeanette Etienne
Heard: May 17-19, 2016
Reasons for Sentence
[1] Anna Clermont, Solange Fervius-Celine and Jeanette Etienne were convicted of fraud over $5,000 on May 24, 2016. I found each of them guilty of having defrauded the Jevco Insurance Company in excess of $5,000 by making claims they were not legally entitled to make for statutory accident benefits arising out of a motor vehicle accident. That collision occurred on Friday, April 23, 2010, at the corner of Kingston Road and Guildcrest Drive in Scarborough, Ontario. My reasons for judgment are reported at R. v. Clermont, 2016 ONSC 3410.
[2] These three first time offenders are all immigrants to Canada from Haiti. One of them is now Canadian but two of them remain landed immigrants. The issue on this sentencing proceeding is simple: what is the fit sentence for having participated in and received statutory accident monies and benefits from an incident when they were neither present in the vehicle in which they claimed to be passengers, nor sustained any injuries that would have entitled them to the amounts they claimed?
Circumstances of the Offence
[3] The accident took place at about 9:00 in the morning, just east of the intersection of Kingston Road and Guildcrest Drive. It involved a 5-ton Mack cube truck with a large rectangular box on the back, typical of vehicles used by smaller private moving companies. The driver was Michael Wilson. His co-worker was Dominique Coladon.
[4] Just after turning left across the three eastbound lanes of traffic into the westbound "passing lane" of Kingston Road, the lane located closest to the median that divided the eastbound and westbound motorways, the Mack truck was struck by a purple Pontiac Grand Am vehicle that had exited from the Esso gas station and convenience store located on the northeast corner of that intersection.
[5] Mr. Wilson felt the impact of a collision on the passenger side of his Mack truck. His co-worker, Dominique Coladon told him that the vehicle that had pulled out of the Esso station had driven into the passenger side of the Mack truck that Mr. Wilson was driving. The Grand Am sustained damage that caused it to be inoperable. The left front quarter panel in front of the driver was crumpled, the driver’s side of the vehicle was significantly damaged, the driver’s side front wheel was askew and the steering and the driver’s side door were inoperable., The driver, now known to be Jean Longchamp, who has fled the jurisdiction, had to exit that vehicle through the passenger door.
[6] Mr. Wilson quickly got out of his vehicle and walked around the front and approached the Grand Am. He assisted the driver to exit from the passenger side door and was reassured he was not injured. The only other person present was Mr. Coladon. There were no passengers in the Grand Am apart from the driver.
[7] As it happens, the accident was witnessed by a police officer who was right on the corner engaged in another investigation when the collision occurred and he was able to see the vehicles come to rest after the collision. When both vehicles came to a stop after a couple of seconds, P.C. Christian saw the driver of the truck come around the front of his vehicle and help the driver of the purple Grand Am to get out of the passenger side of his vehicle. He saw no passengers.
[8] Against this background, none of Michael Wilson, Dominique Coladon, or P.C. Philip Christian saw any other persons in the purple Pontiac Grand Am vehicle. None of them saw any individuals other than the driver, Jean Longchamp, exit that vehicle. None of them saw one, two, or three women appear to be associated with that vehicle, and to have exited the vehicle immediately after the collision. None of them saw one passenger of the vehicle unconscious for some time and sitting on the road after the collision.
[9] However, these three offenders, Anna Clermont, Solange Fervius-Celine and Jeanette Etienne, later hired lawyers and made claims against Jevco Insurance Company under the Ontario Statutory Accident Benefits regime on the basis that they were passengers in that vehicle driven by Jean Longchamp and that they sustained injuries as a result of the collision. Each of them, along with Jean Longchamp, made claims.
[10] I found beyond a reasonable doubt on the whole of the evidence that none of these three accused were present in the motor vehicle at the time that the collision in question took place. As such, I found that their claims made under Ontario's Statutory Accident Benefits regime had no legal or factual foundation and were fraudulent. Defence counsel admitted each of their clients received monies paid to them under this ruse in excess of $5,000, and/or that they received benefits in excess of that amount. I am personally satisfied, based on the evidence at trial and further materials filed on this hearing that each of the three accused received amounts in excess of $5,000 directly, and claimed substantially more. I found that the totals received, excluding insurer examination costs, were as follows: (i) for Anna Clermont, $12,669.58, (ii) for Solange Fervius-Celine, $10,942.73, and for Jeanette Etienne, $12,649.41.
[11] I found their claims for statutory accident benefits arising out of that collision to be an entirely bogus fabrication. The offenders were not telling the truth in their statements any more than Jean Longchamp was when he filed a false accident report. I accept, with the possible exception of Anna Clermont, that they may not have been initial or driving participants in the ruse perpetrated initially by Mr. Longchamp, but each of these three women quickly got on board, retained lawyers, and made dishonest claims against Jevco Insurance Company. Their claims were entirely dishonest and fraudulent. The quantum of the deprivation of Jevco Insurance Company exceeded $5,000 in the case of each of the three accused. I entered convictions for fraud over $5,000 against each of them.
Circumstances of the Offenders
[12] All three of these offenders are first-time offenders. They have never been involved with the law in this country before. They are all immigrants from Haiti. Two are landed immigrants and one is now a citizen. I was advised that all three have civil judgments entered against them in favour of Jevco Insurance Company, arising out of their fraudulent conduct. The likelihood of those judgments ever being satisfied is very low.
[13] Anna Clermont is 49 years old. She came from Haiti to the United States in 1999, but like many others, moved to Canada in 2007 when the economic crisis in the United States at that time came into full bloom. She is a landed immigrant and permanent resident of Canada and as such, the disposition of this sentencing hearing will affect her immigration status in Canada. She has four children, aged is 26, 25, 17 and 13, the youngest three of whom live with her, and for whom she tries to provide as a mother. Her only income is social assistance that amounts to between $1,200 and $1,300 per month. She also obtains childcare benefits for the youngest. She lives at 23 Hogarth Court in Toronto. The rent at that location is $1,249 per month. It is obvious from this calculus that Ms. Clermont has difficulty getting by, and plainly there is generally no money available for restitution. Nevertheless, her counsel advised in his submissions that she has managed to scrape together $1,000, which she wishes to pay at least as a demonstration of remorse and restitution to the best of her ability given her otherwise dismal financial circumstances.
[14] Solange Fervius-Celine is 44 years old and has been married for 13 years to her husband, Ilionick Fervius. He is 49 years old. They have three children, aged 14, 11 and 10. They reside at 40 Wilcox Creek Pkwy in Toronto. Mr. Fervius has two children from a prior relationship aged 22 and 16. Mr. Fervius works for a company called the furniture bank and earns $1,400 a month after taxes. Ms. Fervius-Celine’s only personal source of income is from social assistance and she is paid $1,225 per month. She is not presently employed. Ms. Fervius originally came to the United States in 1998 and that was where her children were born. She came to Canada in 2007 with her three children, once again when the American economic crisis was at its peak, when she lost the house that she and her husband had purchased in Cape Cod in Massachusetts.
[15] She has been resourceful in obtaining training for several distinct lines of work as a personal assistant, support worker, and as a school bus driver and the several certificates awarded to her in recognition of having successfully completed those courses were entered as an exhibit on the sentencing hearing. Nevertheless, she has had trouble obtaining work. At the time of the 2010 offences, remembering that was only three years after she came to Canada and having lost their home in the United States, she was a single mother because Mr. Fervius had not yet been granted entry status into Canada. I accept that she and the other two offenders were vulnerable at that time, in dire economic straits, and thus open to be “preyed upon” by Mr. Longchamp, the instigator and principle perpetrator of these fraud offenses.
[16] Ms. Fervius appears to have been successful as a mother despite her difficult circumstances. I was advised that her 14-year-old son has done exceptionally well and won a scholarship to a school in Virginia in the United States for 2016 2017 because he is a talented student and very skilled at playing football. For the future, Ms. Fervius hopes to pursue employment as a cosmetologist but, regardless, I expect her determination as shown by some of her earlier achievements will continue to motivate her to seek employment wherever it can be found.
[17] Jeanette Etienne has three children of her own and a granddaughter. I am uncertain of her age, but she appears to be roughly the same age as the other two offenders. She also has difficult economic circumstances, but more importantly, as her counsel, Mr. Pierce, advised during argument, her immigration status in Canada would be put in serious jeopardy if she were to be sentenced to a term of imprisonment or a conditional sentence of six months or more.
Position of the Parties
[18] Crown counsel seeks a sentence of one year in jail for each of these three offenders based on principles of general and specific deterrence. He claims these offenders made rational calculations that the risk of participating in this fraud was worth the reward and the public must know that such calculus is not correct and that such fraudulent conduct will not be tolerated. Further, given the documentation each of the offenders had to prepare in furtherance of the fraud, he asserts that their degree of culpability is high. The fraud required a continuing assertion of false pretences as the offenders continued to assert their entitlement for benefits for injuries they knew they did not sustain. That continuing fraudulent conduct is aggravating in his submission and calls out for a period of incarceration.
[19] Importantly, at the time these offences were committed six years ago in 2010, and currently because of that fact, these offenders are eligible for a conditional sentence, but that sentencing regime has since been amended by Parliament and a conditional sentence is no longer available for fraud over $5,000 since 2012. Nevertheless, even though these offenders still qualify, Crown counsel says on a forward looking basis Parliament’s change of law shows a legislative intent that a conditional sentence for these offenders would not be appropriate.
[20] Counsel for each offender seeks a conditional sentence of incarceration to be served in the community with a period of strict house arrest followed by curfew, significant periods of mandatory community service and possibly a probationary term at the conclusion of the conditional sentence component. In the case of the two offenders who are landed immigrants, I am asked to impose a sentence of less than 6 months. While their immigration status will be jeopardized by their conviction for these offences regardless, since the offence is punishable by a term of imprisonment in excess of 10 years, counsel argues based on advice from immigration specialists that the immigration authorities may be persuaded to permit Ms. Clermont and Ms. Etienne to remain in Canada if a low-end sentence of less than 6 months is imposed.
Sentencing Factors
[21] Section 718 of the Criminal Code, R.S.C. 1985, c. C-46 states the fundamental purposes of sentencing and lists its underlying objectives. They are to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, and to deter the offender and others from committing offences. In a case such as this, general deterrence to others is paramount. However, given their prior blameless lives and the circumstances they present, rehabilitation must also play an important role.
[22] Moreover, section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender’s responsibility.
[23] More importantly here, where a one-year jail sentence is sought by the Crown yet these are first-time offenders, it is clear that these offenders qualify for a conditional sentence. That is important because Parliament has mandated that an offender is not to be deprived of her liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions that are reasonable in the circumstances, other than imprisonment, must generally be considered for all offenders.
Reasons
[24] This case was initially scheduled for a two-week jury trial but happily, the accused decided to re-elect trial by judge alone, so the trial took less than a week. That saved the court one week of resources. However, the accused insisted on having their trial, as is their constitutional right, notwithstanding eyewitness evidence of a police officer that they were not present at the accident scene at any time; evidence that was overwhelming against them short of a finding that they were there but that they had magically been removed them from the scene. This was all the more surprising to me given that efforts were made to achieve a resolution, but the accused would evidently not accept the damning evidence that confronted them. Ultimately, my findings confirmed the veracity of that evidence. Nevertheless, while the saving of one week of court time is not the equivalent of a plea as a mitigating factor, it is a positive factor I have taken into account on this sentencing.
[25] A wide range of sentences have been imposed where offenders have been convicted of fraud over $5,000; the appropriate sentence typically being a function of whether the fraud occurred in circumstances of trust, the extent of the fraud and deprivation suffered by the victim, and having regard to the extent of planning and the culpability of the offenders. While it is true that the amendment of the Criminal Code by Parliament now provides that no conditional sentence is available for the offence of fraud over $5,000, at the time that these offences took place in 2010, those amendments had not yet been enacted, so as the Crown properly acknowledges, a conditional sentence is available to be imposed on these offenders if the circumstances required for the imposition of such a sentence are met. To impose such a sentence, s. 742.1 requires me to have concluded that the imposition of a conditional sentence here would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 and would not endanger the safety of the community.
[26] Defence counsel advance several relatively recent authorities in support of the proposition that this is a suitable case for the imposition of a non-custodial conditional sentence. In R. v. Scott, 2011 ONSC 5400, Belobaba J. of this court imposed a conditional sentence of 14 months of house arrest and a curfew where the accused had been convicted of stealing $9,367 from her employer. She was 56 years of age and a first-time offender. As a result of the charges, she lost her employment, her marriage fell apart and she fell into deep depression and tried to commit suicide. Confirming that the primary sentencing objectives were denunciation of deterrence, the sentencing judge nevertheless concluded that the accused was not likely to repeat the offence in the future, and had already endured more than three years of severe depression and self-imposed social isolation. The court concluded that a conditional sentence with 120 hours of community service, restitution of the amount stolen, and a term of probation, would achieve the sentencing objectives of denunciation and deterrence.
[27] In R. v. Gibb, 2014 ONSC 5400, the offenders had been convicted of fraud over $5,000 for falsely informing the victims of the fraud that a $100,000 loan would be invested in a property transaction. At the time of the sentencing, the money remained unpaid. Plainly the magnitude of the fraud was aggravating, and the planning that had been involved in perpetrating the offence, not to mention the significant impact the fraud had on it's vulnerable victims. Nevertheless, neither offender had a prior record and one of the two offenders also had consistent employment history and a supportive family environment. Crown counsel argued for a sentence of 3 to 4 years imprisonment, fines and restitution, but despite the seriousness of the fraud, Regional Senior Justice Daley still felt able to impose conditional sentence. Where the amount of the fraud was between three and four times greater than the amount here, looked at from the perspective of each of the offenders individually, he sentenced the offenders to a conditional sentence of two years less a day, two years of conditional probation, and a $100,000 restitution order together with other ancillary orders that are not relevant here.
[28] Finally, in R. v. Moore, 2010 ONCJ 600, Justice Borenstein of the Ontario Court imposed an 18-month conditional sentence plus one year probation, again in circumstances where the quantum of the more egregious than that present here. The offender was 40 years of age with no prior record paid two limousine drivers to deposit counterfeit certified cheques to two corporate bank accounts. Even in circumstances where the amounts of the fraud totaled over half $1 million, and notwithstanding a guilty plea, a conditional sentence was imposed, bearing in mind in particular that the offender was a minor player in a larger scheme, even though he profited personally from the fraud. These cases are relevant because they show that a conditional sentence may be an appropriate disposition in circumstances where fraud over $5,000 has been found.
[29] In my view, Mr. Longchamp’s accident report is also important to this sentencing decision. When he filled out the report, it was he who reported that there were three occupants in the vehicle in addition to himself. He is the one who commenced the fraud by completing the form in that way. Curiously, he knew the name of only one of them. He reported the first additional occupant of the vehicle to be Anna Clermont, and he indicated that she was injured as a result of the motor vehicle collision. In addition, however, he checked off the boxes for a second and third occupant, in addition to himself. The names of these two individuals on the accident reporting form was shown as "unknown." Solange Fervius-Celine and Jeanette Etienne later claimed to be the other two occupants.
[30] This evidence is strongly suggestive that none of these three offenders, with the unproven exception of Anna Clermont, were the individuals who were principally responsible for the design and implementation of the fraud. I am certain that if he had not fled jurisdiction, Mr. Longchamp would have been found to be the person principally responsible for the implementation of the fraud. Nevertheless, it is true that these three offenders each had to continuously complete claim forms for a period of time to make a claim for the statutory accident benefits to which they were not legally entitled and that is aggravating. The point, however, in the context of this sentencing is that there was no evidence before me that these three offenders had been involved in the design and planning of the fraud, so in my view, while plainly guilty, this is a mitigating factor on sentence.
[31] There is one final factor, however, that causes me to conclude that this is indeed an appropriate situation for the imposition of a conditional sentence. At least two of the three offenders had very difficult economic circumstances at the time the offence was perpetrated. After migrating from Haiti to the United States, they had recently come to Canada having suffered economic loss coincident with the economic depression that took place in the United States in 2008. They were attempting to support children, generally as single mothers, on little more than Ontario Works welfare support. This is not to justify their conduct, but to understand it's context and the circumstances in which they made the bad choices they did to permit themselves to be used as individuals in the fraud scheme against the Jevco Insurance Company which was evidently designed and principally implemented by Mr. Longchamp.
[32] There is a second aspect of this context. Two of the three offenders are landed immigrants. The fact that they have been convicted of these offences raises a serious prospect of them being pursued by Canadian immigration authorities and potentially deported from Canada. However, defence counsel advised based on professional advice received from one of the experts in the field, that in a case of landed immigrants to Canada run afoul of the law, immigration Canada will not look exclusively to the potential length of sentence that could be imposed, but rather be guided significantly by the actual sentence imposed.
[33] In my view, all three offenders should receive the same sentence but if I choose to impose a sentence on those two offenders of six months or greater, whether conditional or custodial, that will offend the second prong of the qualification process that could accelerate their deportation from Canada. Yet on the other hand, each of these three individuals have children for whom they are responsible and are present in Canada, and it is unquestionable that in circumstances where they have no prior criminal history, and where there is every reason to expect that there is little to no prospect of recidivism, activating deportation to their homeland of Haiti would be a very harsh penalty indeed. In my view it would be a penalty that would be disproportionate to the level of their culpability and very onerous measured against the severity of their crime.
[34] The economic wherewithal of each of these three offenders is such that none of them can realistically be expected to make any material restitution towards the amount of the fraud for the remainder of their days, short of winning the lottery. Nevertheless, one of them has done her best to scrape together $1,000 to tender as at least partial restitution for the fraud that they participated in. The other two do not have the financial means to do so. Nevertheless, all three are also subject to civil damages orders obtained by Jevco arising out of this fraud. Those restitutionary orders are unlikely to ever be met, simply because these offenders have no means to satisfy those judgments. They will live with those judgments against them. Whether Jevco seeks to enforce the judgments it has obtained against them is a civil matter and not my concern.
[35] So against this background, I have reached the conclusion that it would serve no meaningful public purpose to incarcerate any of these offenders. In my view a strict house arrest conditional sentence of five months and 29 days to be followed by two years of probation for each of them, will instead ensure that they are not going to be forced to be separated from their families in Canada, but that they will nevertheless be deprived of their liberty in a significant way for a meaningful period of time, and further, will be under state supervision for a further two years.
[36] Anna Clermont, Solange Fervius-Celine and Jeanette Etienne, please stand up. Having convicted you on May 24, 2016 of fraud over $5,000 against the Jevco Insurance Company for making claims you were not legally entitled to make for statutory accident benefits arising out of a motor vehicle accident, I sentence each of you to a conditional sentence of imprisonment consisting of house arrest of five months and 29 days, to be followed by two years of probation thereafter, as well as to do 150 hours each of community service as your probation officer directs. The $1,000 that has been gathered together by Anna Clermont is to be paid to Jevco Insurance Company, as partial restitution.
[37] In addition you will be subject to the statutory terms set out in s. 742.3(1) of the Criminal Code as part of your conditional sentence including,
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order; and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
[38] The terms of this conditional sentence are to be adhered to strictly, and you are to carry a copy of your conditional sentence terms with you at all times when outside of your homes. Notwithstanding the term of house arrest, you will be permitted to attend at a church or other place of worship once a week and be outside of your house for the purpose of obtaining the necessaries of life for a period of four hours per week, in either case as your conditional sentence supervisor shall direct, and also to attend at medical appointments as necessary, for yourselves or immediate members of your family only, with your conditional sentence supervisor’s approval, or in the case of emergency, subject to you notifying your conditional sentence supervisor within 48 hours.
[39] Anna Clermont, Solange Fervius-Celine and Jeanette Etienne, you each need to understand that this is as lenient a sentence as I feel able to impose upon you in discharging my duties as a sentencing judge, but notwithstanding your crime, each of you has otherwise evidently lived a lawful and law abiding life, and so I impose this sentence in the hope that you will understand the seriousness of the crime you committed, but that you will never again run afoul of our laws and be seen in these courts again. You should understand that the next time, should there be a next time, you will not fare so well, but I am confident you will not disappoint my trust in you.
Michael G. Quigley J. Released: July 19, 2016