Court File and Parties

COURT FILE NO.: CNJ 8661 DATE: 2017/02/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. CATHERINE ROBERTS

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Patricia Moore, for the Crown Bruce Ritter, for the Defendant

HEARD: January 13, 2017

Disposition on Sentence

[1] Catherine Roberts pleaded guilty to fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code of Canada. The matter came before me on January 13, 2017 to hear submissions from the Crown and the defence on sentence. What follows is my disposition with respect to the fit sentence for the crime and my reasons therefor.

Factual Background

[2] The facts relating to the commission of the crime were set forth in the Agreed Statement of Facts which was read into the record by Crown counsel and agreed by defence counsel to be substantially correct, and which was entered as Exhibit 1 on the sentencing hearing. Those facts can be summarized as follows.

[3] Ms. Roberts commenced employment with Bank of Montreal (BMO) in September 1989 as a customer service representative. She held various positions within the Bank and was promoted to branch manager in October, 2002. She managed the Highland Hills branch from October, 2002 to July 2008 and was transferred to the Laurentian Hills branch in July, 2008 where she remained until the termination of her employment on July 15, 2011.

[4] Ms. Roberts opened a series of fraudulent accounts at BMO all in the names of her two sisters, Donna Bruckman and Norma Kerr and her deceased mother Jane Gowing, who passed away in January, 2004. The fraudulent activity took place over a seven year time span from January, 2004 to May, 2011.

[5] Although numerous fraudulent accounts were opened by Ms. Roberts in order to facilitate the fraud, BMO only suffered a financial loss in relation to seven accounts. Ms. Roberts engaged in other activity involving individual customer accounts but those amounts were refunded to the customers after the fraud was discovered and were not included in the forensic audit conducted by BMO.

[6] The seven subject accounts comprised three in the name of Norma Kerr, two in the name of Jane Gowing and two in the name of Donna Bruckman.

[7] Ms. Roberts created separate profiles with different name variations for her three affected family members in order to avoid detection. She attached her home address to the accounts to ensure that any statements or correspondence relating to the fraudulent opened accounts would be mailed to her.

[8] The three accounts in the name of Norma Kerr comprised a chequing account, an HOLC line of credit account opened with an initial credit limit of $8,000, and an RRSP Readiline account with a credit limit of $7,500.

[9] A debit card was issued for the chequing account in the name of Norma Kerr. Ms. Roberts was observed in surveillance photographs making transactions relating to this account, which was funded by transfers and/or cheques drawn on the multiple fraudulent accounts that had been opened by her. Funds were depleted from the chequing account by way of debit card purchases, ABM deposits and withdrawals, branch deposits and withdrawals, bill payments and the purchase of bank drafts and money orders. Certain bill payments were made to credit cards in the name of Ms. Roberts and her husband.

[10] Ms. Roberts increased the credit limit on the HOLC account to $140,000 by July, 2011.

[11] When Ms. Roberts was dismissed from her employment, a total of $153,937.43 was owing and due to BMO from the unauthorized accounts in Ms. Kerr’s name.

[12] Two accounts were opened by Roberts in the name of Jane Gowing. A chequing account was opened on March 19, 2003. Roberts continued operating the account after Ms. Gowing’s death on January 2, 2004. A personal line of credit was opened in the name of Ms.Gowing in December, 2001 with a credit limit of $10,000 which was eventually increased by Ms. Roberts to $45,000 in September, 2003. Ms. Roberts continued to operate the personal line of credit account after Ms. Gowing’s death. It had an outstanding balance of $46,291.62 in May, 2011.

[13] A debit card was issued for the chequing account. When Ms. Gowing passed away, Ms. Roberts was supposed to be responsible for closing the chequing account, however she failed to do so. In September, 2004 Donna Bruckman’s name was added to the account and one month later Ms. Gowing’s name was removed from the account. The chequing account was funded by transfers and/or cheques drawn on the multiple fraudulent accounts that were opened by Ms. Roberts. Funds were depleted by way of debit card purchases, ABM deposits and withdrawals, branch deposits and withdrawals, bill payments and the purchase of bank drafts and money orders. Again, certain bill payments were made to credit cards in the name of Ms. Roberts and her husband.

[14] The personal line of credit consisted mainly of automatic payments and then cash advances to the chequing account in Ms. Gowing’s name. The account activity continued after the death of Ms.Gowing involving cash advances to and from the account, bill payments to various billers, point-of-sale purchases at various retailers and cheques written to Norma Kerr and Donna Bruckman.

[15] At the time of Ms. Roberts’ dismissal on July 15, 2011, a total of $2,475.87 on the chequing account in the name of Ms. Gowing and $46,291.62 on the personal line of credit in her name was due and owing to BMO.

[16] Two accounts were opened by Ms. Roberts in the name of Donna Bruckman. The first was an HOLC line of credit opened in July, 2007 with an initial credit limit of $50,000 which was increased to $62,000 by July, 2011. The second account was a personal loan initiated by Ms. Roberts in Ms. Bruckman’s name in November, 2009 in the sum of $14,500.

[17] Ms. Roberts inputted the initial application for the HOLC account. Multiple cash advances and/or cheques were issued from the line of credit to various accounts operated by Ms. Roberts. The funds were subsequently depleted by way of cash withdrawals, debit card purchases and bill payments from which Ms. Roberts benefitted. At the time of her dismissal on July 15, 2011 a total of $75,082.66 was due and owing to BMO from the unauthorized accounts in Ms. Bruckman’s name.

[18] In May, 2011 Ms. Bruckman’s HOLC account was over its limit and Ms. Bruckman was contacted by a BMO representative at which time she denied having knowledge of the account. Later that same day, a cash payment was made to the HOLC account bringing the balance below the credit limit. Upon investigation, BMO was able to determine that the payment was processed by Ms. Roberts, which led to an internal investigation into her banking activities. Ms. Bruckman and Ms. Kerr each provided an affidavit confirming that they had no knowledge of the accounts in their names.

Defendant’s Personal Circumstances

[19] Ms. Roberts’ personal circumstances were related by her counsel and described in some detail by the author of the pre-sentence report.

[20] Ms. Roberts is 58 years of age and has no previous criminal record. She was born and raised in the Cambridge area and reported a positive childhood and upbringing. She was the youngest of five children and remained living at home until she was age 18 when she became pregnant and married her first husband who left her six months following the birth of their child, a daughter. She raised her daughter on her own until marrying her current husband. They went on to have two sons and her husband adopted her daughter from the previous relationship.

[21] The marriage was described as positive until the last five or six years following the matter before the court coming to light. Ms. Roberts and her husband have undergone counselling to help in the issues that have arisen from her actions. They have had to declare bankruptcy and their financial circumstances remain strained.

[22] Ms. Roberts was diagnosed with depression in 2004 by her then family doctor and was placed on medication which continues to be monitored by her current family doctor. She continues to experience issues with depression, anxiety and sleep difficulties. Ms. Roberts is very involved in the lives of her grandchildren, babysitting them on a regular basis and attending their sporting events. She is self-employed as an independent travel and cruise consultant, contracted to Expedia, however her income is significantly reduced from her previous employment with BMO. Her average income is approximately $15,000 per annum, based on straight commission which fluctuates from month to month.

[23] During the time of the commission of the offence, Ms. Roberts was experiencing emotional turmoil over the deaths of family members close to her, including both of her parents and her brother-in-law. She stated to the author of the PSR that she found spending money made her feel better and that she found herself “getting in over my head” financially. She expressed that she was not making excuses for her behaviour and that she is fully responsible for her actions.

[24] Ms. Roberts’ counsel advised that her actions were out of character and contrary to the beliefs that she had tried to instill in her own children. He also advised that substance abuse is not an issue.

[25] When her actions came to light in 2011 Ms. Roberts immediately acknowledged her wrongdoing to her employer. Although she did not plead guilty upon being charged in May, 2015 and proceeded to a preliminary inquiry, her counsel stated that the only issue at the preliminary inquiry was with respect to the pre-charge delay. That issue is not pursued following the preliminary inquiry and Ms. Roberts entered a plea of guilty. She has never denied responsibility to BMO or to the police. Her counsel indicated that Ms. Roberts has entered into a tentative repayment agreement with BMO providing for payment of $300 per month ($3,600/year) conditional only upon the outcome of the sentencing. Counsel advises that there are no hard assets in existence derived from the money stolen from the bank. The money has been spent on things such as vacations and there is none left.

[26] Although the revelation of Ms. Roberts’ actions placed a great deal of strain on all of her relationships, including family and friends, she has worked at restoring those relationships, particularly with her family which has been difficult and although the relationships are improved the restoration is incomplete. Her daughter was particularly impacted. However she has begun to rebuild the relationship with her daughter. Her husband was initially bitter and hurt by her actions, however, over time he has become supportive. Notwithstanding the fact that Ms. Roberts’ used the names of her two sisters to perpetrate the fraud and her relationships with them were initially strained following the revelation of what she had done, they are now supportive of her and provided letters of support which were marked as exhibits in the proceeding.

[27] In her statement to the court, Ms. Roberts expressed her remorse, stating that in the almost 6 years since her actions were discovered not a day goes by that she does not regret what she did. She recognized that it did constitute a breach of trust and stated that she admitted her guilt from the outset. She acknowledged that she spent the money that she took from her employer on shopping and gambling and did so in order to make herself feel better. Following the death of her mother she was in a depression and a downward spiral. She also acknowledged the impact that her actions have had on her family as well as on herself.

Impact On The Victim

[28] An important factor in considering a fit sentence in the circumstances is the effect on the victims of the crime.

[29] BMO sustained a loss of $277,787.78. Any recovery of this is likely to be minimal.

[30] BMO submitted a victim impact statement confirming the calculable financial loss in the amount just described. BMO conducted a lengthy and detailed internal investigation after Ms. Roberts’ actions came to light. The investigation continued over a number of years and took significant BMO resources.

[31] BMO described Ms. Roberts’ actions as constituting a “sophisticated lapping fraud” which continued over a number of years. It stated that she took advantage of her knowledge and position as a manager for her own personal gain. Her actions were first discovered by a BMO employee who took the difficult step of reporting on her branch manager which led ultimately to the employee being summoned to testify in criminal court. The bank stated that a criminal prosecution of a BMO employee for crimes committed in the course of her employment also negatively impacts its reputation in the community.

Ranges Of Sentence Proposed By The Parties

[32] The Crown submits that a fit sentence in the circumstances of the offence and the offender would be as follows:

• 2 to 4 years in penitentiary
• an order for restitution
• a fine in lieu of forfeiture pursuant to s. 462.37(3) and (4) of the Criminal Code
• a DNA order

[33] The defence proposes a sentence of two years less a day served conditionally by means of house arrest and electronic monitoring, followed by a period of probation of one to two years, or a longer period of time if there is to be in order for restitution during probation, as well as an order that Ms. Roberts perform community service. In the alternative, if a conditional sentence is not deemed to be appropriate, the defence would propose a period of incarceration in the mid-range in a provincial institution. If a sentence of incarceration in the upper range is being considered, the defence proposes a sentence of two years in a federal penitentiary, which would provide the potential for the sentence to be served closer to Ms. Roberts’ family and home.

[34] It is noted that because the charge period in the indictment pre-dates the amendment to the Criminal Code removing the possibility of a conditional sentence following a conviction for fraud over $5,000, the imposition of a conditional sentence remains a possibility in this case.

Guiding Principles

[35] As set forth in s. 718 of the Criminal Code, the 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 on the offender. The stated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[36] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[37] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. However, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (C.A.) at para. 45).

[38] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender or increased to account for any aggravating circumstances.

[39] The Court of Appeal in the case of R. v. Bogart, [2002] O.J. No. 3039 (C.A.) confirmed, at para. 30, that in cases of large-scale fraud committed by a person in a position of trust, the most important sentencing principle is general deterrence, and that mitigating factors and even rehabilitation become secondary. Laskin, J.A. quoted, at para. 31, an earlier case R. v. Gray (L.V.) (1995), 76 O.A.C. 387 (C.A.) at pp. 398-99 where the Court stated:

[T]here are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normally committed by a person who is knowledgeable and should be aware of the circumstances. That awareness comes from sentences given to others.

[40] At para. 36 Laskin, J.A. noted that both before and after Parliament’s introduction of conditional sentences, cases of large-scale fraud by persons in a position of trust have typically resulted in substantial jail sentences, ordinarily in the range of 3 to 5 years, and that even where mitigating considerations have reduced the sentence to the reformatory range, a jail term, not a sentence served in the community, has usually been imposed.

[41] In the case of R. v. Atwal, 2016 ONSC 3668 (S.C.J.) Hill, J. summarized many of the overarching considerations in cases such as this at para. 42 as follows (citations omitted):

(a) fraud over $5,000 is a serious offence; (b) when sentencing for fraud involving substantial dishonesty, the principles of general deterrence and denunciation merit paramount consideration; (c) general deterrence tends to have greater impact in the case of embezzlement-type crimes, whether fraud or theft, being criminal conduct where persons usually plan and deliberate about it to some extent. Law-abiding persons, with good employment records and families, are the ones most likely to be deterred by the threat of severe penalties; (d) a sentence of six years is within the correct range of sentences for major frauds, and sentences in the 3 to 5 year range are common; (e) a fraud in the range of $270,000 has been described as at the lower end of “large-scale frauds,” while a $200,000 defalcation has been described as a large-scale fraud; (f) while the jurisprudence of the Court of Appeal indicates that conditional sentences are not appropriate in cases involving convictions for large-scale frauds and are rarely imposed in cases involving a breach of trust, such a disposition has not been excluded from consideration in breach of trust fraud cases. While a conditional sentence, with properly tailored punitive conditions, can effect a measure of general deterrence and denunciation, many of the cases where conditional sentences were found to be appropriate involved pleas of guilt and/or certain exceptional mitigating circumstances.

[42] S. 738(1)(a) of the Criminal Code permits the court, on application of the Crown or on its own motion, to order the offender, in addition to any other measure imposed, to make restitution to another person in the case of the loss of property as a result of the commission of the offence, not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned. S. 741.2 provides that a civil remedy for an act or omission is not affected by reason only that an order for restitution under s. 738 has been made.

[43] The Court of Appeal, in the case of R. v. Castro, 2010 ONCA 718, [2010] O.J. No. 4573 (C.A.) at para. 35, observed that a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. Although considerations of the offender’s ability to pay and the impact of a restitution order on her rehabilitation are factors to be considered, the weight to be given to these factors will vary depending upon the nature of the offence and the circumstances of the offender. The court noted that when the offence involves a breach of trust, the primary consideration is the effect on the victim, whereas rehabilitation is a secondary consideration. At para. 34, the Court noted that the ability to pay must take into consideration what disclosure has been made respecting where the money is or has gone and that a bald assertion that the money is gone should be given no weight.

[44] S. 462.37(3) of the Criminal Code provides that a sentencing judge may order an offender to pay a fine in lieu of forfeiting the proceeds of crime where an order of forfeiture should be made in respect of an offender’s property but the property or any part or the offender’s interest in it cannot be made subject to an order of forfeiture.

[45] The Court of Appeal in the case of R. v. Angelis, 2016 ONCA 675, [2016] O.J. No. 4735 (C.A.) enunciated the principles governing the imposition of a fine in lieu of forfeiture, including the following:

(a) the exercise of the discretion, for which s. 462.37(3) provides, is not without boundaries, but is limited by the objective of the provision, the nature of the order and the circumstances in which the order is made (para. 37); (b) the focus of Part XII.2 of the Code, in which s. 462.37 is found, is different than the focus of the sentencing scheme of Part XXIII. The latter is offender-centric, whereas the former looks beyond the offender and targets the proceeds the offender has acquired through the commission of the offence (para. 39); (c) the provisions of Part XII.2 are in addition to other provisions in the Criminal Code and accordingly, the court must look to the relationship between specific objectives, principles and factors of sentencing and the objectives of Part XII.2 to determine whether any specific principle is sufficiently compatible to warrant its application (para. 40); (d) the imposition of a fine in lieu of forfeiture is not punishment imposed upon an offender (para. 50); (e) since imposition of a fine in lieu of forfeiture is not part of the global sentence imposed on an offender, it is not to be consolidated with sentencing on a totality approach (para.51); (f) forfeiture orders, or fines in lieu, must not be considered interdependently with general sentencing principles (para. 52); (g) the sufficiency of the incarceration component of a sentence to satisfy the applicable sentencing objectives and principles cannot justify refusal to order payment of a fine in lieu of forfeiture where the conditions for its imposition have been established (para. 53); and (h) ability to pay may not be considered, either in deciding to impose a fine in lieu of forfeiture or in determining the amount of the fine. Ability to pay is a factor to be considered in determining the time within which the fine is to be paid.

[46] Pursuant to s. 462.37(4)(vi) of the Criminal Code, where a fine in lieu of forfeiture is ordered, the court shall impose, in default of payment of that fine, a term of imprisonment of not less than three years and not exceeding five years, where the amount of the fine exceeds $250,000 and does not exceed $1 million. However, s. 734.7(1) applies such that the court shall not issue a warrant of committal in default of payment of the fine until the expiration of the time allowed for payment of the fine in full and unless the court is satisfied that the mechanisms provided in Sections 734.5 and 734.6 are not appropriate or that the offender has, without reasonable excuse, refused to pay the fine or discharge it under s. 736.

Aggravating And Mitigating Circumstances

[47] As indicated above, s. 718.2(a) of the Criminal Code requires that I take into account the aggravating and mitigating circumstances which may serve to increase or reduce the sentence to be imposed.

[48] The aggravating circumstances in this case include the following:

(a) Ms. Roberts’ actions represented an egregious breach of trust, magnified by the fact that she had been employed by BMO for 22 years, attaining the position of branch manager; (b) the fraud was perpetrated over a seven-year period, and therefore did not represent an isolated lapse in judgment; (c) there was a degree of sophistication in the fraudulent scheme, involving the creation of fictitious accounts and the utilization of lapping techniques, which took time for the BMO investigators to unravel. The lapping techniques involved moving money around from account to account to conceal the fraud; (d) although no precise figure was given on the number of transactions involved, I can safely assume that they numbered in the hundreds over the seven-year period; (e) Ms. Roberts did not discontinue her fraudulent activity voluntarily, but rather she only stopped when she was caught. There is nothing to suggest that she would not have continued in her fraudulent activity if she had not been caught. In this respect, it was necessary for a subordinate employee in the branch to take what must have been a very difficult step of reporting her suspicions respecting Ms. Roberts to bank management and to testify at the preliminary inquiry; (f) the offence involved what the case law has characterized as a large-scale fraud; (g) the fraud was inflicted on a chartered bank, which gave it a quasi-public aspect. The banking system in Canada is built on a foundation of trust. Members of the public, in entrusting their financial well-being and security to chartered banks, have a right to expect the highest level of trustworthiness on the part of banks and their personnel. Bank employees who act dishonestly not only put their employers at risk, but also put the confidence of the public in our financial institutions at risk.

[49] The mitigating circumstances include the following:

(a) Ms. Roberts is a 58 years of age; (b) Ms. Roberts has no criminal record and there is no indication that she has had any previous involvement with the criminal justice system; (c) Ms. Roberts was previously of good character and antecedents, however, this factor is blunted by the fact that it is often the case that offenders who perpetrate large-scale frauds are in a position to do so by reason of their reputation for good character and trustworthiness; (d) Ms. Roberts acknowledged her responsibility immediately upon being confronted by the bank and then to police and pleaded guilty, albeit after a preliminary inquiry; (e) Ms. Roberts gave a heartfelt expression of her remorse at the sentencing hearing; (f) Ms. Roberts has suffered significantly from her actions through the shame and humiliation to which she has been subjected in the eyes of her family and friends. She has experienced loss of, or damage to, her relationships with family, friends and work associates and has had her employment prospects significantly diminished. She has worked hard at seeking to re-establish her relationships, particularly with her family and has, to a large degree, been successful in doing so; (g) Ms. Roberts has the support of her family, including her husband, daughter and two sisters; and (h) Ms. Robert has endured almost six years of uncertainty with respect to the outcome of this proceeding since her actions came to light and her initial acknowledgement of responsibility. However, this factor is somewhat reduced by the length of time and the complexity involved in BMO carrying out its forensic investigation and audit prior to the charges being laid.

[50] It is noted that there has been no restitution made to date, although Ms. Roberts has entered into a conditional agreement with BMO to institute restitution payments of $300 per month. No medical evidence was led which would provide underlying psychological or addiction-related explanations for the commission of the offence.

Analysis

[51] Crown and defence counsel do not disagree that in the case of an offence of this nature, involving a large-scale fraud, committed by a person in a position of trust, the principles of deterrence and denunciation are paramount, and mitigating factors and rehabilitation are secondary. They also agree that, in application of these principles, a significant period of incarceration is warranted, absent extraordinary circumstances.

[52] Mr. Ritter, for Ms. Roberts, argues that the circumstances are such that the applicable principles of sentencing may be met by a conditional sentence providing for incarceration in the community with electronic monitoring. He noted the comment of the Court of Appeal in R. v. J.W., [1997] O.J. No. 1380 (C.A.) at para. 52 that there is no inflexible rule that a conditional sentence should never or rarely be imposed in fraud cases involving a breach of trust or that the community can only be safeguarded in such cases by incarcerating the offender, but rather the objective of general deterrence can be achieved through conditional sentence of imprisonment.

[53] Mr. Ritter pointed to a number of cases in which conditional sentences have been imposed in fraud cases as follows:

(a) R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (S.C.C.); (b) R. v. Hayes; (c) R. v. Callendar, 2009 ONSC 5510; (d) R. v. Adams, 2009 ONCJ 383, [2009] O.J. No. 3442 (O.C.J.); (e) R. v. Robinson; (f) R. v. Berenbaum; (g) R. v. Neblett, 2009 ONCJ 639; and (h) R. v. Sirling, 2016 ONCJ 613

[54] Before turning to the question of whether a period of incarceration should be imposed, I find, on the basis of the principles referred to above in Castro, that it is appropriate that an order for restitution in the sum of $277,787.78 be made in this case. I also find that, in the exercise of my discretion in light of the principles laid down by the Court of Appeal in Angelis, the imposition of a fine in lieu of forfeiture in the sum of $277,787.78 is called for by s. 462.37(3) of the Criminal Code.

[55] For reasons similar to those expressed in the case of R. v. Palantzas, 2009 ONSC 3862 I do not find that this is an appropriate case for a DNA order under s. 487.05(1) of the Criminal Code. There was no indication that the investigation could have been advanced by the presence or absence of Ms. Roberts’ DNA on any document, and there is little or no likelihood of her committing any crime in the future that could be investigated more reliably with her DNA.

[56] I have carefully considered the case law provided by Mr. Ritter in support of his submission calling for a conditional sentence.

[57] The starting point for any consideration of the imposition of a conditional sentence is s. 742.1 of the Criminal Code which sets out four criteria which the court must consider before deciding to impose a conditional sentence, namely, (1) the offence must be one that is not punishable by minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental principles of sentencing.

[58] It is apparent from a review of the jurisprudence that a period of institutional incarceration is generally to be imposed in the case of fraud involving breach of trust and that in those cases where the court has imposed a conditional sentence unique and exceptional circumstances have been present, often, but not exclusively, involving the adverse impact of a custodial sentence would have on vulnerable third parties who may be dependent upon the offender for their care (see Robinson at paras. 19, 25 and 27, Bunn at para. 23, Adams para. 27, Neblett, para. 25, and Stirling para. 102).

[59] In the case of R. v. Ruhl, [2012] O.J. No. 4233 (O.C.J.) Justice Hearn of the Ontario Court of Justice carried out a very useful and instructive analysis in comparable circumstances to this case. At para. 55 Justice Hearn stated “This is a troublesome sentencing. The sentencing of an individual is perhaps one of the most difficult tasks for a judge and the circumstances of this particular case certainly emphasize that difficulty. The theft here involves a substantial amount of money and the conduct takes place over an extended period of time. The case law dictates that general deterrence and denunciation are primary principles of sentencing to be considered.”

[60] These words are equally applicable to the present case.

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

[62] In Ruhl, the most notable mitigating factor leading to Justice Hearn’s imposition of a sentence of incarceration of six months followed by a period of probation of three years was the evidence of the offender’s diagnosed gambling addiction. No similar factor exists in the present case.

[63] Although courts have imposed penitentiary terms of 3 to 5 years or more in comparable circumstances, taking into account Ms. Roberts’ acknowledgement of responsibility by means of her guilty plea, the significant ways in which she is already suffered through shame, humiliation and damage to relationships as a result of her actions, and most significantly, the length of time that Ms. Roberts has been under a cloud of uncertainty with respect to her future since when her fraudulent activity was revealed and she initially accepted responsibility, this range should be reduced to a period of incarceration of two years. In my view this would be the least restrictive sentence which would reasonably address the applicable principles of sentencing.

Disposition

[64] Ms. Roberts would you please stand.

[65] For the reasons just outlined, I impose a sentence of two years in custody. There will be an order for restitution to the Bank of Montreal in the sum of $277,787.78, I also impose a fine in lieu of forfeiture in the sum of $277,787.78. You are given 10 years to pay that sum from the date of release from custody and s. 462.37(4)(vi) shall govern in default of payment of the fine. The restitution order shall take priority over payment of the fine in lieu of forfeiture and the fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order.

D.A. Broad, J. Date: February 21, 2017