CITATION: R. v. MacDonald , 2017 ONSC 1440
COURT FILE NO.: 16-73
DATE: 2017/03/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Lee-Ann MacDonald
Defendant/Respondent
A.Kapend, counsel for the Crown
H. Desormeau, counsel for the accused Lee-Ann MacDonald
HEARD: March 30th, 2017
REASONS FOR JUDGMENT
Lafrance-Cardinal, J.
[1] Lee-Ann MacDonald plead guilty on February 23rd 2017 of having by deceit, falsehood or other fraudulent means defrauded Conrad Simard, Albert Cinquina, Judy McDonald, Gaetane Ouellette and the Ontario Works Department of the City of Cornwall contrary to S. 380(1)(a) of the Criminal Code . She also plead guilty, under S.368 (1)(a) of the Criminal Code of having used a forged document at the Bank of Nova Scotia. Finally, she admits, under false pretences, of having obtained credit from Judy McDonald, Albert Cinquina and Conrad Simard contrary to S.362 (1)(b) of the Criminal Code.
[2] The total loss suffered from the four named individuals and Ontario Works is $66,318.98.
[3] The Crown is asking for 18 months true jail with a restitution order and 3 years’ probation. It is submitting that if a conditional jail sentence is considered, then it should be for 24 months with a house arrest component for the full 24 months.
[4] Defense is asking that I consider a 24 month conditional jail sentence, with 12 months of house arrest, followed by 12 months of curfew, a 3 year probation order and a restitution order.
[5] The Criminal Code provides that the maximum sentence for a crime such as this one is a period of incarceration of 14 years.
[6] The principles of sentencing as defined in the Criminal Code dictates that the sentence must denounce the unlawful behavior, must deter the Accused and others like her from committing such an offense. In a fraud case, general and specific deterrence are at the forefront of the sentencing principles taking into consideration that the Court has an obligation to assist and encourage the rehabilitation of offenders
[7] S.718.2 states:
“a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offense or the offender”
[8] The mitigating factors can be described as follows:
a) The plea of guilt, Ms. MacDonald acknowledges guilt that she wilfully deceived and defrauded these 4 individuals and Ontario Works.
b) The pleas of guilt are significant in this Jordan era as we are talking about illegal behaviour that would have occurred in 2010-2011-2012-2013 at the time of the plea we were in February of 2017 and a trial date had not yet been fixed. The Court notes however that there was a waiver of S.11 (b) Charter rights from time to time.
c) At the time of the commission of these offenses, Ms. MacDonald was seriously addicted to prescription drugs that were not prescribed to her. Her illegal behavior was to fuel her drug addiction. She is now drug free since August 2013 with no relapse. However she is on the methadone program, for pain management to prevent a further addiction to opiates which would otherwise be prescribed.
d) She is the sole caregiver to her 9 year old grandson. Children’s Aid Society has no issues with her parenting as attested by a Children’s Aid Society’s letter filed.
e) She is trying to better herself, although she is on Ontario Works she also attends school.
f) Ms. MacDonald is 43 years of age, up until these events, she was living a pro-social lifestyle. She has no criminal record.
[9] The aggravating factors can be listed as follows:
a) One cannot under estimate the devastating consequences of Ms. MacDonald’s fraud. All of the victims, other than Ontario Works, were vulnerable victims. All retired individuals on a very fixed pension income:
i) In the case of Mr. Simard, now 75, he took out loans to help Ms. MacDonald out. He believed all of her sob stories. At one point he was at risk of losing his home. He finally had to sell it at a reduced price to pay off his debts. He was suicidal, ashamed of having succumbed to Ms. MacDonald’s sad stories. He was defrauded of $20,190.00.
ii) Mr. Cinquina, now in his 70’s did not want to participate in these proceedings. He did not provide a victim impact statement. He was defrauded of $ 17,140.00.
iii) Ms. Judy McDonald, now 68, met the accused in 2010 when she was a child care provider for Children’s Aid Society. Because K. , Ms. MacDonald’s grandson was placed with her, Children’s Aid Society was originally involved. It is to Ms. Judy McDonald that the accused admitted her illegal behavior and that she was abusing prescription drugs. She was defrauded of $ 10,340.00, $ 555.00 was repaid, leaving an amount owing of $ 9785.00.
iv) Geatanne Ouellette now 71 believed Ms. MacDonald’s story that she had won the lottery and that she needed money to go pick up her prize in Toronto. She also believed that with the lottery money, her friend Mr. Simard would be repaid for the money advanced to the accused and she would be repaid the amount loaned. She was defrauded of $ 4,300.00.
b) There has been no restitution for any of the moneys received by Ms. MacDonald, other than $ 555.00 repaid to Ms. Judy McDonald. On the contrary, she gave Mr. Cinquina 5 repayment cheques that all came back N.S.F and she forged his signature on 3 void cheques that were cashed.
c) Ontario Works were defrauded of $ 14,903.98 as she failed to declare the money she was receiving from the four named victims from October 2010 to May of 2013.
(d) She used the fact that she was caring for her grandson to get sympathy and money from the vulnerable victims. She befriended them, told them sob stories about having cancer, creating false emergencies, all believed by the 4 victims.
[10] The question becomes what is a proper sentence having regards to the aggravating and mitigating factors in this file and having regards to the need to denounce this behavior and the need to deter the accused and others to commit these crimes of dishonesty.
[11] The Crown is seeking a period of 18 months incarceration based on the total amount defrauded of $ 66,318.98 but mostly based on the vulnerability of the victims and the fact that there are a total of 5 victims.
[12] The Crown has provided me with a case book to assist in determining a proper sentence. I note that most cases cited can be distinguished as they deal with breaches of trust that are not present in this case. Some cases also deal with large scale commercial frauds that can also be distinguished from this case. In all of the cases cited the courts decided that those frauds warranted a period of true incarceration..
[13] Defense has provided me with various cases where the Courts have imposed a conditional jail sentence for cases similar to ours. The Ontario Court of Appeal in R. vs. Kirk, 2004 Carswell Ont 3377, substituted a conditional jail sentence instead of a term of imprisonment ordered by the trial judge. In that case, the complainants were all home owners who had hired the accused to renovate their homes. In most cases, the accused accepted deposits, began and completed some renovations but ultimately abandoned the sites. In total the home owners suffered a loss of approximately $ 64,000.00.
[14] As in our case Kirk , supra, dealt with:
a) more than one victim,
b) the accused was not in a position of trust,
c) the loss suffered was almost identical being $ 64,000.00,
d) the accused had a dated criminal record which the Court did not consider
[15] The court of Appeal in Kirk, supra determined that the facts did not support a finding of “breach of trust” as an aggravating circumstance and that the inability to make restitution should not “militate against the imposition of a conditional sentence” para 24. The Court substituted a sentence of nine months imprisonment for a 12 month conditional jail sentence.
[16] I am satisfied that a conditional jail sentence would satisfy the principles of sentencing as set out in S.718 and S.718.2. I note that the statutory requirements under S.742.1 are met as the sentence would be one of less than two years and that serving the sentence in the community would not endanger the safety of the community. I also note that at the time this offense was committed that there was no restriction as presently found in 742.1(c).
[17] On count #11, Ms. MacDonald you will be sentenced to a 24 month conditional jail sentence. Concurrent on count # 1, 3, 8, 10 and 12 you are to serve your sentence in the community , the conditions are as follows:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so by the court;
Report to a supervisor at Probation Services in Cornwall on Pitt Street within two working days, and thereafter report to a supervisor when required by the supervisor and in the manner directed by the supervisor;
Remain within the province of Ontario unless written permission to go outside Ontario is obtained from the Court or the conditional sentence supervisor.
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.
No contact with the complainants, Conrad Simard, Albert Cinquina, Judy McDonald and Gaetane Ouellette except through your supervisor for the purpose of providing restitution.
House arrest: For the first twelve months of your conditional jail sentence reside at 23 Lawrence Avenue, Cornwall and be at your residence at all times except:
a) With the written permission of the supervisor;
b) To attend to personal business such as shopping for essentials, banking, personal appointments once per week, on a day discussed with your supervisor from noon to 6:00pm.
c) For scheduled medical appointments or school for you or your grandson with notice given in advance to the supervisor, or for any medical emergencies for you or your grandson.
d) To attend to household chores outside of the home including mowing lawn, taking out garbage, cleaning the snow as long as you are always on your property and not more than 25 feet from the house. This would include supervising your grandson.
e) You will be subject to Operation door knock.
After the 12 months of house arrest you will be only subject to a curfew between 11:00pm and 7:00am where you must be in your home unless you have the written permission of your supervisor. All other conditions remain the same.
It is recommended that the conditional sentence supervisor will grant written permission for the purpose of employment or school where the precise location and times of work are provided in advance to the supervisor.
Commencing April 15th , 2017 and on the 15th day of each and every month pay as restitution the sum of $ 25.00 per month to be apportioned equally between the 5 victims: Conrad Simard, Albert Cinquina, Judy McDonald, Gaetane Ouellette and Ontario Works for the City of Cornwall.
To attend the methadone program, if needed, on a schedule approved of by your supervisor and to abstain from consuming or possessing any non-prescribed drugs.
Not have any credit cards in your name.
[18] Following your conditional jail sentence you will be put on probation for a period of 3 years, on count #5 , concurrent on all other counts, the terms of your probation are:
You are to keep the peace and be of good behavior;
Report to your probation officer when requested to do so;
Have no contact direct or indirect with Conrad Simard, Albert Cinquina, Judy McDonald and Gaetane Ouellette.
To attend the methadone program, if needed, and abstain from consuming or possessing any non-prescribed drugs.
On the 15th day of each and every month pay as restitution the sum of $ 25.00 per month to be apportioned equally between the 5 victims: Conrad Simard, Albert Cinquina, Judy McDonald, Gaetane Ouellette and Ontario Works for the City of Cornwall.
Not have any credit cards in your name.
[19] You will be subject to a stand alone restitution order for the 5 victims – The amounts to be inscribed as follows:
Conrad Simard $20,190.00
Albert Cinquina $17,140.00
Judy McDonald $ 9,785.00
Gaetane Ouellette $ 4,300.00
Ontario Works $ 14,903.98
[20] There will be no DNA order, no weapon prohibition order and no victim surcharge order.
Judge
Released: March 30th, 2017
CITATION: R. v. MacDonald , 2017 ONSC 1440
COURT FILE NO.: 16-73
DATE: 2017/03/30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Lee-Ann MacDonald
REASONS FOR JUDGMENT
Madam Justice Lafrance-Cardinal
Released: March 30th , 2017