Court File and Parties

COURT FILE NO.: 14-39

DATE: 20190611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gilles Saucier

Defendant

COUNSEL:

Michael Purcell, counsel for the Crown

Lawrence Greenspon, counsel for the Defendant,

HEARD: May 31 and June 11, 2019

REASONS FOR SENTENCE

LACELLE, J.

Introduction

[1] The offender, Gilles Saucier, is before me for sentencing on 10 counts of fraud over $5, 000, 4 counts of uttering forged documents, and 1 count of forgery.

[2] On the first date for this sentencing hearing, the Crown submitted that a penitentiary sentence of 30 months was appropriate, whereas the defence urged the court to consider a non-custodial sentence. In supplementary submissions before me today, counsel both agree that a conditional sentence is available to the offender. The defence now submits that a conditional sentence would be the most appropriate sentence.

[3] The issue before me is what constitutes a fit sentence in this matter, having regard to the circumstances of the offence, the circumstances of the offender, and the many principles of sentencing that apply in this case.

The circumstances of the offences

[4] The offender was a financial advisor who defrauded 10 of his clients over a 3 year period. The amounts of the fraud in respect of each client ranged from $5, 000 to $55, 000. The total sum of the funds involved in this case is just over $215, 000. The offender received these funds from his clients and, without their knowledge or consent, he retained personal control over those funds rather than place them as he was directed to do. In most instances, the funds were to have been directed to life insurance policies at London Life. The offender returned the funds to his clients when he was asked by each of them to do so. This was before he was charged. In most instances, he returned the funds with interest. Consequently, no victim has suffered a financial loss in this matter.

[5] The additional circumstances of the offences were fully set out in my reasons for judgment following the trial of this matter and are reported at 2018 ONSC 7266. Consequently, I will not review them here. I confirm that I bear them in mind in imposing sentence.

The positions of the parties

[6] In seeking a penitentiary sentence of 30 months, the Crown argues that the offender preyed on people who were retired, near retired, or elderly. Given that there were 10 instances of protracted fraud against trusting and vulnerable clients, and the many aggravating factors in this case, the Crown argues that a sentence of 30 months is fit. The Crown submits there is an absence of mitigation in this case that would justify the imposition of a lesser sentence. In particular, the accused is not entitled to any reduction in his sentence by reason that he pleaded guilty or has accepted responsibility and shown remorse. In addition to the jail sentence, the Crown asks the court to impose a lifetime order under s. 380.2 of the Code prohibiting the offender from having authority over the property of another. The Crown opposes the imposition of a conditional sentence because it would not adequately reflect the fundamental principles of sentencing.

[7] The defence urges the court to impose a conditional sentence. In support of that position, counsel argues that there is no other reported case where the funds at issue were recovered pre-charge. Counsel submits this takes the case outside the usual range and renders a non-custodial, or conditional sentence, appropriate. Further, the media coverage of this case has served a deterrent function because the community now well understands the consequences of conduct of this kind. Insofar as the order under s. 380.2 is concerned, counsel characterizes a lifetime prohibition as resulting in permanent economic exile. This provides a significant amount of deterrence to others, and is not proportionate if it is also attached to a lengthy penitentiary sentence.

The principles of sentence

[8] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence.

[9] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should 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 or to the community; and

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

[10] Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.

[11] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the responsibility of the offender. Imposing a proportionate sentence is an individualized exercise. The sentence must be tailored having regard to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. Nur, 2015 SCC 15 at para. 43.

[12] The parity principle requires a judge to consider the range of sentence imposed in similar matters. The Criminal Code requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A judge must also apply the principle of restraint. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances.

[13] In addition to these principles set out in the Criminal Code, I consider the principles and direction from the case law related to sentencing for fraud offences of this kind. They include the following:

a. Fraud over $5, 000 is a serious offence: R. v. Bogart, (2002), 2002 CanLII 41073 (ON CA), 167 C.C.C. (3d) 390 (Ont. C.A.), leave to appeal refused (2003), [2002] S.C.C.A. No. 398 (S.C.C.). The maximum sentence is 14 years imprisonment.

b. Large-scale frauds by persons in positions of trust will almost inevitably attract a significant custodial sentence: Bogart at para. 36; R. v. Williams, 2007 CanLII 13949 (ON SC), [2007] O.J. No. 1604.

c. In imposing a sentence where the offender has used his or her position to commit a breach of trust, the primary considerations are the protection of the public, general deterrence and the repudiation of the conduct of which the offender was found guilty. The secondary considerations are specific deterrence, rehabilitation and any mitigating circumstances such as a plea of guilty or co-operation with the authorities: R. v. Castro, 2010 ONCA 718 at para. 30. See also Bogart at paras. 29-34.

d. General deterrence remains a paramount consideration even for first time offenders of otherwise good character: Williams at para. 25.

e. As was noted in Bogart in citing R. v. Gray (1995), 1995 CanLII 18 (ON CA), 76 O.A.C. 387 (Ont. C.A.) at 398-99:

there 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 consequences. That awareness comes from sentences given to others.

f. The term “large-scale fraud” has been used in respect of cases involving an attempt to obtain funds in the range of $343, 000 where only $35, 000 was actually obtained (R. v. Mathur, 2017 ONCA 403), and in cases where the amount defrauded was as low as $194, 000 (see Williams; see also Castro at para. 16, and R. v. Dobis, 2002 CanLII 32815 (ON CA), [2002] O.J. No. 646 (C.A.) );

g. Regardless, the characterization of the fraud is not determinative of whether certain sentencing principles apply or have primacy. As noted in Mathur by Trotter J.A. at para. 14, “irrespective of the adjective used to describe the level of the appellant’s offending”, it was the presence of the many aggravating factors in the case which compelled an emphasis on the sentencing principles of general deterrence and denunciation.

The circumstances of the offender

[14] I have limited information about the offender and his current circumstances. I consider however that he is a 58 year old first offender. He was born and raised in Cornwall and attended a local high school. After high school, he held various jobs. He eventually came to work in the banking sector. After that, he became a financial advisor. He has 5 children, all of whom are now adults. In submissions, counsel advises that the offender no longer resides in this area because of the impact of the publicity in this matter.

Aggravating factors

[15] There are a number of aggravating factors in this case. They include:

a. The offences involved a breach of trust (see s. 718.2 of the Code). The breach of trust is particularly troubling given what the offender knew about his clients’ circumstances during the time he committed the offences, such as the Lacombe’s loss of their son. Many of the victims also trusted the accused, at least in part, because of his association with London Life. In all cases, the offender violated the considerable trust that was placed in him because of his professional status as a financial advisor;

b. The offences involved a large number of victims (s. 380.1(1)(c));

c. Many of the victims were vulnerable by reason of their age, relative lack of sophistication in financial matters, or because of their personal circumstances at the time the offences were committed. Many of the victims were also of relatively modest means. The evidence of the Lauzons, who throughout their married life had adopted the habit of saving $5 per week, illustrates this point poignantly. Their need to have the accused translate documents and make out cheques because of language and literacy issues further demonstrates their vulnerability. The offender’s choice to take advantage of people like these heightens his moral blameworthiness;

d. Notwithstanding that the victims did not ultimately suffer financial losses, the offences impacted at least some of them in other ways:

i. Ms. Lacombe confirms she and her husband’s lives are now full of suspicion and distrust. They had counted on their financial advisor to do his job, particularly since during the time frame of the offences they had lost their son in an accident, which left them devastated. At the time of the offences there were sleepless nights and troubled days over their financial future.

ii. Ms. Breyer’s victim impact statement confirms she suffers from Parkinson’s disease and the emotional impact of the offences has impacted her efforts to control her disease. Because her husband worked for London Life she also feels that his name has been disgraced by the offender’s conduct.

iii. For its part, London Life indicates that the offender’s conduct has affected its reputation and client relationships.

e. The evidence supports the inference that the offences were motivated by greed. This is not a case where an addiction or other circumstances provides some context for the offender’s conduct;

f. The offences involved a repeated course of conduct over a significant period of time – 3 years (s. 380.1(1)(a));

g. While not highly sophisticated, the offenders’ conduct was planned and included providing his clients with misleading documentation. He further misled some of them when they inquired as to the status of their funds. This permitted him to continue with his offences, in some cases, for a lengthy period of time. The offences thus involved a high level of deceit (s. 380.1(1)(a));

h. The accused did not cease his conduct voluntarily and continued with the offences against certain clients even after he knew London Life had commenced an investigation involving others (see Mathur at para 14).

Mitigating Factors

[16] In mitigation of sentence, I consider that the offender comes before the court as a first offender.

[17] I am mindful of and I apply the direction of s. 380.1(2) of the Criminal Code to the effect that mitigating factors do not include the accused’s employment, employment skills or status or reputation in the community if those circumstances were, as they were here, relevant to, contributed to, or used in the commission of the offence.

[18] This does not mean that prior good character is irrelevant, however. As noted by the Court of Appeal for Ontario in R. v. Drabinsky, 2011 ONCA 582 at paras. 167-8,

individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin as a result of the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender’s prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one’s involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstances meriting departure from the range.

In holding that prior good character and the personal consequences of the fraud cannot push the appropriate sentence outside of the range, we do not suggest that they are not relevant mitigating factors. They must be considered in determining where within the range the sentence should fall.

[19] Here, the accused’s status as a first offender entitles him to mitigation of his sentence. Insofar as the personal consequences of the offences upon the offender are concerned, the evidentiary record supports the conclusion that the offender lost his contract with London Life. While I would expect there to be other professional consequences for the offender, and I consider that this case has attracted the attention of the local media, the record before me does not support the conclusion that any of these consequences are distinguishable from what Drabinsky described as “inevitable” following the commission of offences of this kind.

[20] The offender is also entitled to the mitigation of his sentence because he has repaid all of his victims in full. This is a significant mitigating factor that warrants a meaningful reduction in the sentence that would otherwise be appropriate.

[21] The case law is clear that “substantial recovery” of the proceeds of dishonest conduct and the “pre-sentence making of restitution” operate as a mitigating factor that can “serve to ameliorate the harshness of the disposition to be imposed” in breach of trust fraud cases: see Williams at para. 31 citing, inter alia, R. v. Nichols, 2001 CanLII 5680 (ON CA), [2001] O.J. No. 3220 (C.A.)(leave to appeal refused [2001] S.C.C.A. No. 508); R. v. Pavich, 2000 CanLII 16971 (ON CA), [2000] O.J. No. 4209 (C.A.); R. v. Bogart (2002), 2002 CanLII 41073 (ON CA), 61 O.R. (3d) 75 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 398 (S.C.C.); R. v. Francis, [2000] O.J. No. 5043 (C.A.). See also Mathur at para. 10, where the court noted the comments of Laskin J.A. in Bogart recognizing that “the payment of full restitution before sentencing “might” be a “special” circumstance justifying a conditional sentence where a prison sentence is otherwise appropriate”.

The sentencing range

[22] Both parties have provided cases for the court’s consideration in establishing the appropriate range of sentence for offences of this kind. The Crown relies upon: R. v. Taverner, 2017 ONCJ 469 (C.J.), R. v. Banks, 2010 ONCJ 339 (O.C.J.), and R. v. Dennis, 2003 BCSC 2017 (B.C.S.C.). The defence relies upon: R. v. Carvell, [2005] O.J. No. 5923 (C.J.), R. v. McLellan, 2012 ONCA 717, R. v. Blair, [2016] O.J. No. 2578 (C.J.), R. v. Latour, SCJ March 29th, 2018, Laliberte J. (unreported), Mathur, and R. v. Piccinini, 2018 ONCA 433.

[23] With respect to whether a conditional sentence is appropriate in this case, the Crown relies upon the cases of R. v. Plange, 2018 ONSC 1657 and R. v. Fung, 2014 ONCJ 492. The defence relies upon R. v. Proulx, 2000 SCC 5, R. v. Campbell, 2005 ONCJ 286, R. v. Lamoureux, 2011 ONASC 5497 and R. v. Abedi, 2012 ONCJ 540.

Trial court decisions

[24] I commence with an overview of the lower court decisions.

[25] Carvell involved a case where the accused was granted a conditional discharge after pleading guilty to two counts related to fraudulent activity in obtaining mortgages. The victim was the Canadian Mortgage and Housing Corporation. The court characterized the accused’s fraud as in the nature of a commercial fraud involving at least $70, 000. In finding that a conditional discharge was not contrary to the public interest, the court emphasized the importance of the accused’s guilty plea, the pre-sentence publicity about the case, and the fact that full restitution had been made.

[26] In Blair, the 26 year old accused pleaded guilty to fraud, forgery and perjury offences. Acting as a real estate agent, over an 8 month period, the accused had engaged in fraudulent activity which permitted some of her clients to receive mortgages that they would not have been given had the true state of their finances been known. While no loss resulted from her conduct and her clients benefitted from it, it had put the mortgage company at risk of loss. The sentencing record included numerous letters of reference. A “very positive pre-sentence report” concluded that the accused was a low risk to reoffend. The court found at para. 19 that there was “virtually no likelihood that a criminal court will ever see [the accused] again”. In the result, the court imposed a suspended sentence with 12 months’ probation.

[27] Taverner involved an accused who was employed by an organization offering support to disabled individuals in the community. The accused obtained signing authority on the account of the victim, who was a developmentally disabled adult whose income derived, in part, from ODSP payments. He had also received funds from a class action as a result of abuse he had suffered as a child. The accused used the victim’s money for her personal expenditures and defrauded him over a 6 year period of $47, 045.51. The accused pleaded guilty 4 months after she was charged. By the time of the sentencing hearing, she had made restitution in full. She expressed her remorse to the victim during the sentencing hearing. She was sentenced to 12 months jail and two years’ probation. An order under s. 380.2 was made for a period of 10 years.

[28] The case of Williams, while cited in support of various sentencing principles, is also instructive on the range of sentence for a fraud of this magnitude involving a breach of trust. In that case, the 60 year old accused was found guilty after a trial of defrauding her employer of $194, 000. As a superintendent with a board of education, she had executive approval over invoices by third parties. She approved payment for nine invoices charged by a fictitious organization and received the funds personally. The board recovered only $34, 000 of the funds. The fraudulent activity occurred over a period of 3 years and was characterized as a large scale fraud. Holding that a conditional sentence of imprisonment would not fulfil the primary sentencing principles of deterrence and denunciation, Hill J. imposed an 18 month sentence and a restitution order of $159, 000.

Trial court decisions involving financial advisors

[29] Since the nature of the breach of trust is similar, it is helpful to consider the sentences imposed in other cases where financial advisors defrauded their clients.

[30] Banks involved a financial advisor who over 6 years defrauded 18 clients of $1.4 million dollars. He pleaded guilty to 12 counts of fraud over $5, 000. Instead of following his clients’ instructions with respect to how their money was to be invested, he used their funds to keep afloat his personal business ventures or to repay other clients’ monies that he had previously taken and used improperly. Most of the victims were elderly and the effect of their losses was characterized as severe. At the time of sentencing, no restitution had been made. The accused pleaded guilty and received a four year sentence.

[31] Latour is a case from this area. In that case, the accused pleaded guilty to eight counts of fraud over $5, 000 and one count of having used a forged document. The total amount of the funds taken was over $1, 000, 000. The eight victims included the accused’s mother, his brother, and friends. The accused admitted to what was described as a Ponzi scheme. He had received money from the victims which was never invested. Instead, he used the funds personally and to reimburse other investors. The accused had reimbursed certain clients with funds totaling $132, 000. He had yet to repay the remainder of the funds taken, including $204, 000 from his mother. The court received a joint submission from counsel and imposed a sentence of two years to be followed by three years’ probation. The court also made restitution orders in favour of those victims who had yet to be reimbursed.

[32] Dennis involved a financial advisor who had defrauded his clients over a period of 3.5 years. Here, the sum defrauded was $247, 000. By the time of the sentencing hearing, the accused had demonstrated remorse for his offences. The court held that he had obtained his vulnerable clients’ trust because of his association with an investment group and his involvement and reputation in the community. The court found that the accused damaged the reputation of the investment group and that the victims lost the opportunity to use their funds for their retirement. The impact on the victims was described as profound and long-lasting. Various restitution orders were made and it appears that no significant amount of restitution was made prior to sentencing. The accused lost his career as a representative of the investment group and had to leave his community as his clients and some friends turned against him. He also had health concerns. The court rejected the request for a conditional sentence and held that “[f]inancial advisors, like the accused, who are in a position of trust, that take money from decent, hard-working people and use it for their own purposes, should know that dishonourable conduct will have a price”. The accused was sentenced to a term of imprisonment of 2 years and three months.

Decisions from the Court of Appeal for Ontario

[33] Cases from the Court of Appeal for Ontario for significant frauds involving a breach of trust are also useful in placing an offender’s conduct within a range of sentence.

[34] In R. v. MacDiarmid (2001), 2001 CanLII 24117 (ON CA), 140 O.A.C. 287 (Ont. C.A.), the court of appeal upheld an 18 month conditional sentence plus two years’ probation for a doctor who defrauded OHIP of about $155, 000. The issue on appeal was only whether the additional $100, 000 fine imposed by the trial judge could stand with the probation order. The accused had pleaded guilty and admitted he had submitted approximately 6000 false claims to OHIP. The court noted he did not profit from his crime and repaid the entire amount before sentencing.

[35] In Castro, the Court of Appeal upheld a 23 month jail sentence followed by 2 years’ probation and a restitution order for a 49 year old paralegal who was found guilty after trial of six counts of theft, two counts of forgery, and one count of fraud. On appeal, the issue was whether a restitution order was appropriate. The accused had deposited cheques from settlements in cases involving motor vehicle accidents into his trust account and then converted that money to his own use. He then lied to his clients about whether there had been a settlement, or whether a settlement cheque had been received. There was a lack of evidence as to what happened to the money the accused had obtained. The Court of Appeal held that this was relevant to the making of a restitution order for $141, 752. The trial judge found that the victims were vulnerable and needed the settlement money urgently. In mitigation, the trial judge found that the accused did not intend to steal the money on a permanent basis and made partial payments in a number of cases. The accused had expressed remorse for his actions and the losses he caused to the victims.

[36] McLellan involved a practicing lawyer who was convicted after trial of fraud following his fraudulent activity and forgery of documents relating to a mortgage. The conduct spanned a time frame of 5 months and involved $150, 000. Following his arrest, the accused took steps to repay the funds he had stolen but had repaid only $50, 000. The trial judge sentenced the accused to 22 months in jail less pre-sentence custody credit. She found that the fraud involved one primary victim and a relatively brief course of misconduct in circumstances of extraordinary financial pressures “which did not amount to a systemic fraudulent scheme against the vulnerable”. She recognized that the accused had mental health challenges which may have impaired his judgment.

[37] Reviewing the sentence on appeal, the Court of Appeal noted that an offender’s status as a lawyer is a significant aggravating factor since misconduct by lawyers undermines public confidence in the administration of justice. It held that the trial judge had not erred in declining to impose a conditional sentence since “the primary sentencing principles of general deterrence, denunciation, and the public perception of justice are most appropriately addressed in this case by a sentence of incarceration” (para. 36). However, the court found the sentencing judge misapprehended the evidence relating to the likelihood the accused could repay the outstanding restitution amount. The court found that had the trial judge been aware of the true state of affairs respecting restitution, she would have imposed a lower custodial sentence. Further, fresh evidence regarding the accused’s efforts at restitution would have obtained a similar reduction, since an “offender’s ability and willingness to pay restitution is an important consideration in the sentencing of fraud and related offences”: para. 44. Consequently, the court of appeal reduced the sentence to one of 16 months’ incarceration.

[38] In Mathur, the accused was an accountant and real estate agent/broker. Over a two year period, he used confidential information from his real estate clients without their knowledge or consent and prepared 292 false tax returns. He also created T4 slips from two fictitious companies. He generated refunds on the tax returns and received $35, 321 from the federal government. He had attempted to obtain over $300, 000. For this conduct, he was found guilty of one count of fraud over $5, 000, which suggests that the matter proceeded by way of a guilty plea.

[39] The 65 year old accused had no prior record. At the time of the sentencing hearing, he had the full support of his family and he had taken psychological counselling and gained some insight into his behaviour. He offered to make restitution, though no order was ultimately imposed. The court had evidence that he had lost his accreditations to work as an accountant and as a real estate agent/broker.

[40] The Court of Appeal noted the offence involved a breach of trust and found that given the aggravating factors involved the sentencing judge was correct to emphasize general deterrence and denunciation. The aggravating factors included the degree of sophistication and planning involved, the significant number of transactions, the duration of the fraud (27 months), and that the accused was caught and had not voluntarily terminated his activities. The Court of Appeal upheld the 12 month sentence imposed by the trial judge and held that a conditional sentence would not have achieved the goals of general deterrence and denunciation.

[41] In Piccinini, the accused was employed as a bookkeeper for a lawyer. She defrauded her employer of almost $50, 000 and was found guilty after trial. The sentencing judge noted the breach of trust, the fact that the offence occurred over more than three years, the fact that the accused was a licensed paralegal, and the limited remorse expressed by the accused. The Court of Appeal upheld the trial judge’s determination that a sentence of 12 months jail, as opposed to a conditional sentence, was fit.

[42] Most recently, in R. v. Schoer, 2019 ONCA 105, the court considered a conviction and sentence appeal for a registered investment advisor who, over the course of 8 years, persuaded “unsuspecting friends, acquaintances, neighbours and clients” to provide him with funds for investments which were never made. Instead, the accused converted the money to his own use. Much of it was intermingled with his own funds. The trial judge rejected the accused’s evidence that the 14 complainants had misunderstood the nature of the transaction he was facilitating. While the Crown alleged that the fraud involved many complainants and over $1.8 million in loss, the restitution issues related to the 14 complainants who testified. They had been defrauded of $413, 500. In addition to the restitution orders made, the accused was sentenced to 4 years in jail.

The fit sentence in this case

[43] In determining a fit sentence I find the Dennis case to be particularly helpful because it is factually similar – it also involved a financial advisor who defrauded his clients. As I have indicated, in that case, a 27 month sentence was imposed after trial. The offences involved a similar time frame for the misconduct (3.5 years in Dennis, 3 in this case) and a similar level of funds defrauded ($247, 000 in Dennis, $215, 000 in this case). The accused in that case also used misleading documents and was found to have damaged the reputation of an investment company. The moral blameworthiness of each of the offenders in this case and in Dennis is similar.

[44] The consequences of their conduct, however, is not. In Dennis, the victim impact was characterized as profound and long-lasting. The victims’ loss of funds resulted in harms such as an inability to retire early, and a lost opportunity to establish a significant investment fund for a child with health problems. Fortunately in this case, none of the victims has suffered that degree of financial and other related harm as the victims in Dennis. This is in no way to diminish the fact that the breach of trust that each experienced is significant. The breach of trust is a meaningful consequence of these offences (as is demonstrated by the Victim Impact Statements of Ms. Lacombe and Ms. Breyer). Nevertheless, the full repayment of the funds in the case before me must mitigate the sentence to be imposed in a meaningful way.

[45] I have also taken guidance from the result in Latour, another case involving a financial advisor’s breach of trust which involved similar circumstances for the offences. The principle of parity dictates that the sentence in this case must be less than the two year sentence received by Mr. Latour. The absence of the mitigating factor of a guilty plea in this case does not justify a sentence exceeding that received by Mr. Latour, who had defrauded his mother, brother and friends of far more money, and had yet to repay roughly $900, 000 of those funds.

[46] At the low end of the range of cases presented to me are cases like Carvell and Blair, where the court imposed non-custodial sentences. Those cases do not present the many aggravating circumstances found in this case, and Mr. Saucier does not have the benefit as those offenders did of the mitigation that comes with a guilty plea.

[47] I have also been guided generally by the results in cases involving offenders who were not financial advisors, but committed significant frauds involving breaches of trust. In McLellan, the Court of Appeal substituted a sentence of 16 months on appeal for a case involving a lawyer whose fraud involved $150, 000, where the Court had confidence this sum would be repaid to the victim. While the offender in that case was guilty of an even more egregious breach of trust because of its potential to undermine confidence in the administration of justice, the offence had only spanned a period of 5 months and was committed in circumstances of extraordinary financial pressure. While the breach of trust in this case may not have the same impact as in McLellan, the scope of the accused’s conduct, the vulnerability of many of his clients, and the time span over which the offences occurred makes the moral blameworthiness of his conduct at least similar.

[48] In reviewing the cases where a 12 month sentence was imposed, e.g. Taverner, Mathur, and Piccinini, I note that each involved a sentence following a guilty plea. In Taverner, the offender, like this one, had also made full restitution. However the fraud involved one victim and $47, 000. In Piccinini, the fraud of $50, 000 involved one victim. While the offender’s conduct in Mathur was more expansive, as was the conduct in this case, the loss was limited to $35, 000. The offender was found to have taken psychological counselling and gained some insight into his behaviour. None of the client victims in that case were characterized as vulnerable.

[49] Given this range of sentence, and having regard to the aggravating and mitigating factors in this case, I conclude that a sentence of under two years is fit.

[50] Accordingly, a conditional sentence is available to the offender. Since Mr. Saucier is a first offender, and given the importance of the principle of restraint, the appropriateness of a conditional sentence requires careful consideration in this case. The issue to be determined on this point is whether a conditional sentence would, as required by s. 742.1 of the Code, be consistent with the fundamental principles of sentencing.

[51] In arriving at a decision on this issue, I confirm my consideration of the directions in Proulx. It is clear from that case, and others since, that a conditional sentence may provide significant deterrence and denunciation, particularly where sufficiently punitive conditions are imposed (see paras. 102-108). Consequently, conditional sentences have been imposed for large-scale fraud offences where the amounts defrauded far exceed the funds at issue in this case.

[52] But the determination of a fit sentence requires more than a consideration of the sum of the amounts defrauded. It requires careful consideration of individual features of the case and the mitigating and aggravating circumstances that apply.

[53] Considering the aggravating and mitigating factors in this case, I am not persuaded that a conditional sentence is consistent with the fundamental principles of sentencing. The breach of trust, the number of victims, the vulnerability of many of the victims, the extent of the offender’s deception, the duration of his conduct, and the fact that it continued even after London Life commenced its investigation all compel me to conclude that the aggravating factors in this case require an emphasis on the principles of deterrence and denuciation.

[54] Further, I have no reason on this evidentiary record to find that the offender’s rehabilitative potential is such as to favour the conclusion that this is a sentence where a combination of both punitive and restorative objectives may be achieved (see Proulx at para. 113). There is no evidence the offender has any remorse. There is no evidence he has any insight into his behaviour. In short, this is one of those cases where the punitive objectives of denunciation and deterrence are particularly pressing and incarceration is the preferable sanction (see Proulx at para. 114).

[55] In arriving at this conclusion, I have considered the considerable mitigation that comes from the fact that restitution was paid in full to the victims prior to the offender being charged. As important as this is, it is also important to place that aspect of the accused’s conduct in context. The offender did not voluntarily cease his fraudulent activity. Even as he was compensating some of his victims, he continued to defraud others. He continued his offences even after he knew he was being investigated by London Life. As I found in my reasons for judgment, the circumstances in which he repaid his victims reflected an attempt to protect his own self-interest. In this case, the payment of restitution does not signify the offender’s remorse.

[56] Nevertheless, because the offender has fully repaid his victims, they have not suffered the harms that many other fraud victims have. Regardless of why he made restitution, the victims have not suffered the harms associated with the complete loss of their money. As I have said, I find this is a significant mitigating factor that is entitled to considerable weight in determining the appropriate sentence. I do not find it so compelling, however, that even considering the offender’s status as a first offender, and the principle of restraint, that it favours the imposition of a conditional sentence.

[57] On the whole, I conclude that those cases where a conditional sentence was imposed for offences of this kind involved a collection of mitigating factors that shifted the balance as to where the sentence should fall having regard to the aggravating factors in those cases. In this case, I conclude that the constellation of aggravating and mitigating factors are such that a jail sentence is required.

[58] As for the length of that sentence, I am once again guided by the cases I have previously discussed. I conclude that a sentence of 15 months jail is fit and properly reflects the fact that the offender has repaid all of his victims.

The prohibition order under s. 380.2 of the Code

[59] The Crown seeks an order under s. 380.2 of the Code prohibiting the offender 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. Pursuant to s. 380.2(2), such a prohibition may be for any period that the court considers appropriate.

[60] I agree with the defence that this type of prohibition order forms part of the sentence and therefore the principle of proportionality must be considered in assessing its appropriateness and duration.

[61] In my view, a prohibition order pursuant to s. 380.2 for life is fit. I arrive at this conclusion because there is nothing in the record before me that would indicate that the offender is remorseful about his conduct. Nor do I have any insight into why he committed these offences, apart from the inference that he was motivated by greed. I have no reason to be confident that the offender is in any way engaged in ensuring he never repeats conduct of this kind.

[62] On the other hand, given the scope of the accused’s conduct, there is a clear and pressing need to protect members of the public from any work the offender might do, paid or not, relating to their real property, money, or valuable security. I also consider that the order is reviewable at the request of the offender who may demonstrate to the court that his changed circumstances no longer warrant it. This ameliorative provision ensures that this part of the court’s sentence will remain proportionate to the seriousness of the offender’s conduct as well as his circumstances going forward.

Conclusion

[63] In the result, the offender will be sentenced as follows:

[64] On count 1, fraud over $5, 000, the sentence imposed is 15 months’ imprisonment. All other fraud counts will reflect a sentence of 15 months concurrent to count 1.

[65] The counts for uttering a forged document (counts 8, 16, 26, and 37) will all reflect a sentence of 6 months concurrent to count 1.

[66] On the count of forgery (count 20), the sentence will also be 6 months concurrent to count 1.

[67] Pursuant to the principles in Kienapple a stay is entered in respect of the remaining counts (e.g. 7, 11, 12, 14, 15, 18, 19, 22, 23, 25, 28, 29, 31, 32, 34, 35, and 37).

[68] Finally, there will be an order under s. 380.2 for life.

The Honourable Justice Laurie Lacelle

Released: June 11, 2019