COURT FILE NO.: CR-16-369
DATE: February 21, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Caitlin Downing for Her Majesty the Queen
- and -
KATHLEEN THUR
Marni Munsterman, for the Accused
Accused
DATE HEARD: November 29, 2018
REASONS FOR SENTENCE
James, J.
Circumstances of the Offence
[1] In 2015 Ms. Thur was charged in connection with the disappearance of over $41,000 belonging to the Rankin Community Centre. At the time, she was living in the Kirkland Lake area and was employed as the clerk-treasurer of McGarry Township.
[2] In a November 2015 court appearance, Ms. Thur, then self-represented, pleaded guilty in the Ontario Court of Justice at Pembroke to the charges relating to the missing funds and a sentencing date was set for January 7, 2016. She indicated that she intended to hire a lawyer for the sentencing.
[3] In anticipation of the sentencing hearing, Ms. Thur obtained the agreement of the mayor of McGarry Township, Clermonte Lapointe, to sign a letter of support. She prepared the letter and the mayor signed it after reviewing and approving its contents. He said that Ms. Thur was a good employee and he wanted to do what he could to help her. This letter was dated January 4, 2016.
[4] The next day Ms. Thur’s lawyer asked her for another letter from her employer confirming that township officials were aware of the specific charges involved and that she would be able to keep her job if an intermittent sentence was imposed.
[5] The request from the lawyer resulted in the preparation of another letter dated January 5 that was purportedly signed by Mayor Lapointe. This second letter was much more specific and contained a statement that the members of council for McGarry Township were “fully aware that she had pleaded guilty to a charge of fraud from a charitable institution, Rankin Cultural and Community Centre” and that “in the event that she receives an intermittent sentence, her job is secured and her employment will continue the same with the Township of McGarry.”
[6] The letter also provided that “we extremely value Kathleen and her employment at McGarry Township, but due to the importance of her clerk-treasurer’s position it makes it impossible for her to be absent from her job during required work schedule.”
[7] The January 5^th^ letter was tendered by Ms. Thur’s counsel at the sentencing hearing in support of a request that the court impose an intermittent sentence so she could keep her job. The presiding judge was not persuaded that an intermittent sentence would be appropriate and sentenced Ms. Thur to a 9 month period of imprisonment followed by probation. A restitution order for the missing money was also imposed.
[8] A few months later, in response to inquiries by the police, Mr. Lapointe said he was not aware of the second letter, the one that had been submitted to the court, and that he said he had not signed it even though it bore his signature.
[9] The police then charged Ms. Thur with fraud, forgery and obstruction of justice.
[10] In September of this year Ms. Thur was found guilty of forgery and obstruction of justice in connection with these charges which brings us here today.
Circumstances of the Offender
[11] Ms. Thur is 54 years old, is married and has a son attending university. She is employed as a part time bookkeeper. She has a criminal record for previous forgeries. Her upbringing was relatively unremarkable. She has a supportive family. There is no evidence of substance abuse issues at present although this was a problem in the past
Parameters of the Offences
[12] Count 2—Obstruct justice, section 139(1), maximum 10 years, no minimum.
[13] Count 3—use a forged document, section 368(1)(a), maximum 10 years, no minimum.
Sentencing Positions
[14] Crown counsel suggests that a custodial sentence of 3 years would be appropriate together with a DNA order.
[15] Defence counsel submits that a global sentence in the range of 12 to 18 months followed by a period of probation would be appropriate.
Aggravating Factors
[16] A sentencing judge must take into account both aggravating and mitigating factors when determining an appropriate sentence.
[17] In this case there are at least three aggravating factors. Firstly, the offender has a criminal record for crimes of dishonesty, the most recent of which was about 3 years ago.
[18] Secondly, the offences were a premeditated and planned attempt to mislead the court.
[19] Thirdly, Ms. Thur’s crimes had a negative impact on officials who worked for the Township that employed her, particularly Mayor Lapointe, who was unexpectedly confronted by angry electors at a township council meeting for having written the letter of January 5^th^—the one he knew nothing about.
Mitigating Factors
[20] She has good family supports.
[21] She has a relatively stable employment history.
[22] There is a 16 year break between the first group of offences in 2000 and the more recent fraud and breach of trust convictions in 2016.
[23] The comments in the PSR were relatively positive and supportive.
Principles of Sentencing
[24] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law by imposing appropriate sanctions that have one or more of the following objectives
a) To denounce unlawful conduct;
b) To deter the offender and others from committing crimes separate offenders from society where necessary;
c) To assist in rehabilitating offenders;
d) To provide reparations for the harm done to victims or to the community; and,
e) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community
[25] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Relating this principle to this case, the crime we are dealing with here was serious, going as it does to the heart of the administration of justice. In addition, Ms. Thur was the only person responsible for the forgery. No one else was involved.
Case Law
[26] Crown counsel provided copies of 5 sentencing cases for my consideration. Defence counsel provided 3 cases in support of the defence position. My first comment is that there are very few Ontario precedents dealing with situations like this one where the offender sought to mislead the court by submitting false documents.
[27] In one sense I think that is encouraging. Crimes such as the offences committed by Ms. Thur are rare. At the same time there are not many Ontario precedents to provide guidance as to an appropriate sentence. Three of the cases Crown counsel relies upon are from British Columbia. In the R. v.Carter, 2004 BCPC 72 case, a decision of the British Columbia Provincial Court in 2004, the offender was sentenced to a global sentence of 28 months for using 3 forged letters of support at a sentencing hearing.
[28] In this case the offender had a very extensive criminal record and the judge commented that there was a startling frequency to the convictions—a pattern of re-offending almost immediately upon his release from custody which I think helps explain the substantial penalty that was imposed.
[29] The other two British Columbia cases are from the British Columbia Court of Appeal. In R. v. Taft, 2003 BCCA 104 from 2003 the offender provided his lawyer with forged certificates of completion of programs to be used at a sentencing hearing. A 15 month sentence was upheld on appeal.
[30] In the case of R. v. Corbett, 2006 BCCA 257 from 2006, a 24 year old filed a forged letter from a former employer to assist him in obtaining bail pending trial. The charge in that case was for perjury to which the offender had entered a guilty plea. Rehabilitation concerns for a youthful offender led the appeal court to reduce his sentence from 15 months to 12 months.
[31] In the 1982 case of R v. Zabor, [1982] OJ No. 186 (CA) from our Court of Appeal, the offender forged a will and filed a false affidavit contending that the will was genuine. The appeal court agreed in principle with a 2 year sentence but reduced it to a suspended sentence because of the offender’s health issues including terminal cancer that would have been difficult to treat in prison.
[32] In the R v. Bourne, 2009 YKTC 133 case from the Yukon Territory in 2009 an offender who was facing drug charges tendered a forged prescription in an effort to claim some of the pills he had in his possession had been prescribed by his doctor. The judge in that case imposed a 15 month sentence.
[33] The cases submitted by the Crown set out a range of sentences from about 12 months to 28 months, depending on the particular circumstances of the offence and the offender. None of the cases support the 36 month sentence requested by the Crown.
[34] Turning to the cases presented on behalf of Ms. Thur, two of them are from lower courts in Alberta. In the R v. Shaw, 2012 ABPC 273 from 2012 the offender forged a court order to get access to $125,000 from a trust account. The Crown sought between 13 and 18 months for the forgery and obstruct justice offences. The offender in that case had suffered a stroke that had affected her behavior and she had serious unrelated mental health issues as well. She was sentenced to 12 months for the forgery and obstruct justice convictions as part of an overall sentence of 21 months that included other crimes.
[35] The other Alberta provincial court case referred to by the defence is the 2011 decision in R. v. Marier, 2011 ABPC 182. There the offender presented two forged letters for use at a sentencing hearing. The offender had a lengthy criminal record. She was sentenced to 15 months for uttering forged documents and obstruct justice as part of a larger sentence for other crimes as well.
[36] In R. v. Samson, 2010 ONSC 4451, a decision of this court in 2010, the offender forged a lease and defrauded Ontario Works. She had a criminal record. She entered a plea of guilty to the charges thereby dispensing with the need for a trial. She was given a 90 day intermittent sentence which was combined with a 12 month conditional sentence. In pronouncing the sentence, the judge commented on the onerous bail terms imposed on the offender while awaiting trial. It should be noted that the Samson case did not involve fraudulent activity affecting the administration of justice.
[37] So now I will proceed with the sentence to be imposed on Ms. Thur.
[38] Ms. Thur will you please stand up. You have committed crimes directed at interfering with the administration of justice. Your actions in signing Mayor Lapointe’s name to the letter were a calculated and planned fraud on the court. You made your lawyer an unwitting accomplice to your deceit and relied on his good standing with the court in an effort to manipulate the justice system to your advantage. You sought to mislead and deceive the sentencing judge into imposing a sentence that would let you keep your job.
[39] While I do not think that there is a significant risk that you will try the same thing again in the future, an appropriate sentence ought to reflect the importance of denouncing your conduct and send a message of general deterrence to others who might be inclined to try to deceive the court to their advantage. You are not a youthful offender for whom rehabilitation would be an important consideration. You’ve been here before.
[40] In all the circumstances I am of the view that a sentence of 573 days incarceration on count 2 would be appropriate and 573 days to be served concurrently on count 3.
[41] This equates to a global sentence of 20 months with a credit of 35 days at 1.5 to 1 for your incarceration prior to today. The usual practice is to grant credit for time served. It was open to the police to lay a charge of failing to appear. They chose not to do so. To fail to grant credit would in effect be punishing Ms. Thur without an opportunity to defend herself.
[42] Crown counsel has also requested an order requiring you to provide a sample of your DNA. The convictions in this case do not fall within the group of offences for which a DNA order is almost mandatory. In the situation we have here, I must be satisfied that it is in the best interests of the administration of justice to make a DNA order, having regard for your criminal record, the nature of the offence, the circumstances surrounding its commission and the impact that an order would have on your privacy interests.
[43] I have considered that none of your crimes involve violence or physical harm to others. The crimes you have committed are far removed from the types of crimes where DNA orders are routinely granted nor is it readily apparent to me that a DNA order would be a useful investigative tool. Therefore, no DNA order will be issued.
[44] Finally, I would like to address the issue of probation. I am ordering there will be a 12 month probation order following your release from jail. In addition to the statutory conditions, you are to report to a probation officer within 3 working days of your release. I am imposing a requirement that you must report in person bi-weekly for the first 3 months and thereafter as required by your probation officer. I think this will encourage respect for the law and re-enforce the importance of showing up on the time when required to do so. There will be a no contact condition in relation to Clermonte Lapointe. Finally, you will participate in and complete such counselling as may be directed by your probation officer.
Mr. Justice Martin James
DATE RELEASED: January 21, 2019
COURT FILE NO.: CR-16-369
DATE: January 21, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KATHLEEN THUR
REASONS FOR SENTENCE
Mr. Justice Martin James
DATE RELEASED: January 21, 2019