minicounsel

COURT FILE NO.: CR-17-70000470-0000

DATE: 20191023

B E T W E E N: )

and - )

Andrew Max, for the Crown

Kevin Kaczmara and Solange Davis- Ramlochan, for the Defendant

HEARD: September 16, 2019, at Toronto, Ontario

Michael G. Quigley J.

Overview

1On June 19, 2019, the jury found Marcia Motayne guilty of one count of fraud over $5,000 against New Visions Toronto (“NVT”), a not-for-profit agency. The agency provides care and housing to disabled individuals who are amongst the most vulnerable in our community. It is my task to impose a fit sentence for this crime that was carried out with planning, precision and stealth over four years.

Position of the Crown

2Crown counsel seeks (i) a penitentiary sentence of eight to ten years on the basis of the facts that he asks me to find based on the evidence at trial and (ii) a restitution order in the amount of $1,095,668.71. That is the total of the net unrecovered loss of

$795,668.71 plus an additional $300,000 I am asked to find to be costs incurred by NVT arising directly out of the fraud, as outlined below.

3The Crown also seeks a fine in lieu of forfeiture of $795,668.71, the net of the

$904,000 stolen by Ms. Motayne, less $109,000 recovered, under subsection 462.37(3) of the Criminal Code1. She would be given a period of years to pay after release, but serve a further consecutive period of incarceration at least three years should the fine remain unpaid after that period of years expired. Crown counsel also requests a 20-year prohibition order under s. 380.2 of the Code, and finally, a DNA order under subsection 487.051(3) as a designated secondary offence.

4Crown counsel acknowledges that the custodial sentence he seeks is at the high end of what he claims is the applicable sentencing range, on the basis that this a unique, disturbing case displaying most of the statutory aggravating factors.

Position of the Defence

5Defence counsel argues that the appropriate sentence for Ms. Motayne is four years of imprisonment. Relying on s. 719(3), counsel asks for pre-trial custody credit on the statutory 1.5 to one basis, totaling 127 days from June 19, 2019 to today’s date. Defence counsel resists the DNA order as an unnecessary intrusion on the offender’s liberty and privacy interests, resists the granting of a 20-year prohibition order under s. 380.2, and argues that the fine in lieu of forfeiture order is excessive. The Defence insists the proper range of sentence is three to five years, not three to eight years as claimed by the Crown.

Circumstances of the Offender

6Ms. Motayne is now 51 years old. She has two sons, Brendon and Matthew. She came from Guyana but is now a Canadian citizen.

7She was born in Georgetown, Guyana. Her mother owned a general store. Her father worked on-and-off as a labourer and security guard. There is no indication of either parent having had mental illness.

8As a child, she shared a home with her mother, two older sisters, one younger sister, and one maternal half-brother. She had several older half-brothers who had already moved out of the home. Her father had another family. He lived with her, her mother, and her mother’s other children from Monday to Friday, and then went to his other family on the weekends.

9Ms. Motayne reported she was bullied at school, but she denied having any childhood behavioural difficulties, like skipping school, bullying other children, stealing, or lying as a child. However, she told Dr. Toguri, a forensic psychiatrist at CAMH, that

1 Criminal Code, R.S.C., 1985, c. C-46 [Code].

she was a “fearful child”—fearful that her house would burn down and that men would enter her house and commit sexual assaults.

10Ms. Motayne’s father beat her and her siblings for years for minor infractions. Her mother separated from her father when Ms. Motayne was 12, but then her mother started beating the children after the separation, although none of this abuse resulted in hospitalization. There were no social agencies in their community to intervene. She has no recollection of being sexually abused, but one of her sisters may have been.

11In high school she “wanted to be the first in the class all the time,” and she succeeded in doing so during her final year, when she was sixteen. She moved to Canada with her mother and a younger sister. Two older half-brothers had already settled in Canada. One of her brothers stayed in Guyana; another sister moved to United States; a pregnant sister stayed in Guyana.

12She lived with her mother, sister, and an older brother in his apartment in the GTA. She finished grade twelve and thirteen in Ontario, working after school and on weekends at an answering service. In about 1985 or 1986, Ms. Motayne found full-time employment at an insurance company and she moved, with her sister and mother, into their own apartment. She started an accountancy diploma course at Centennial College at 19 and completed it over the course of the next 10 years.

13Ms. Motayne experienced great psychological stress in 1988 when her father became ill with complications of diabetes and her younger sister became pregnant at seventeen years of age. Her mother put pressure on her to save money in order to support her ill father in Guyana. She told Dr. Toguri “all the pressure was on me,” and that she experienced “a nervous breakdown”.

14After her father passed away, she moved into her own apartment, worked, got married, and started a family. Between 1988 and 2008, she held periods of employment at six or seven organizations, working primarily in property management. She met her former husband in 1993 on a trip to Guyana. They were engaged three weeks later. Her first son was born in 1996, and the second in 2000.

15Ms. Motayne told Dr. Toguri that she decided to look for employment where she might be able to help the unfortunate, and that brought her to seek employment at NVT. She was hired as a business manager at NVT in 2008. The work satisfactory, but she wanted a role using accountancy skills after receiving her accountancy diploma in 2009.

16Ms. Motayne told Dr. Toguri that she had a good working relationship with her supervisor at the time, Mr. Don Walker. It was Mr. Walker’s initiative to have the NVT

payroll brought in-house. Ms. Motayne reported that over time she advanced within NVT and came to hold more responsibility.

17Dr. Toguri reported that the focus of Ms. Motayne’s narrative of this period of her life was the infidelity of her husband, which she detected in 2011. She noticed phone bill abnormalities, and then she located a number that belonged to another woman. She confronted her husband about his relationship to the woman. Several months later, after eighteen years of marriage, her husband abruptly packed his clothes and left the home to live with the other woman.

18However, after he left, she still had to carry the mortgage payment on their home in Ajax and provide for their two sons. A separation agreement required her former spouse to pay $1,500 per month in financial support, but she claimed he usually did not pay or underpaid.

19Mr. Motayne said she became severely depressed after her spouse left. The stress from her financial difficulties exacerbated her depression. Ms. Motayne considered taking time off of work. She told Dr. Toguri that “I knew I should not have continued working, but my doctor said that with [my] medical history, if [I] stopped working, they will take [my] kids away.”

20Ms. Motayne sought psychiatric assistance in early 2012. She contacted Dr. Esther Sarid, whom she had seen in the past, but Dr. Sarid did not have room to accept new cases. Consequently, it was her family physician at the time, Dr. Carol Silverstein, who provided counseling and antidepressant medication management. Dr. Silverstein continued providing care throughout the period during which the fraud occurred.

21Mr. Walker left NVT in 2012. Mr. Andy Rotsma succeeded him. Mr. Motayne claimed to have had a poor work relationship with Mr. Rotsma. She thought he came out of retirement to join NVT and “just wanted to do something easy but not take on any responsibility.” She felt that “everything was on [her] shoulders.” She told the doctor that she continued to be depressed throughout the rest of her time at NVT. In late 2014, Ms. Motayne tried to get the Family Responsibility Office to enforce her support payment entitlement. In March 2015, Ms. Motayne returned to the psychiatric care of Dr. Sarid.

22Ms. Motayne told Dr. Toguri that she was fired from New Visions due to poor work performance and policy disagreements, not due to her offence. She stated that the depression she experienced led to her crying at work and her inability to effectively perform her duties. Ms. Motayne was fired from New Visions on August 13, 2015. The fraud was uncovered about a month later.

23A number of letters of reference were filed on behalf of Ms. Motayne attesting to her good character, her relationship with her sons and other family members and friends. There were also numerous letters written by individuals in religious ministry at churches where Ms. Motayne appears to be a congregant, or whom she has met through that venue.

24Her sister Rose Ann Russell acknowledges the great harm Ms. Motayne has done, but says it is “entirely out of character”. She attributes it to the depression and stress associated with the break up of her marriage.

25Her son Matthew wrote on his own and his brother Brandon’s behalf. They spoke about her depression, the deterioration of the family unit, and their mother’s increasing symptoms of mental illness. They believe her crime resulted from her mental illness being untreated, but they insist she “has a good heart, and is always helping other people.” They say she is now getting the help she needs and has been strengthened by rediscovery of Christian roots. In a second letter they beg the court not to incarcerate their mother, and to let them return to live with her in her care, rather than requiring them to continue to live with their father.

26Pastor Mo Morrison, one the Pastors of the Dayspring Christian Church in Brampton, explains the depths of Ms. Motayne’s depression when she first met her, but that Ms. Motayne committed herself to an intense recovery process, including completing the hard work that was required to come face-to-face with the truth of her past, taking responsibility for her mistakes by making amends, and by offering forgiveness to others.

27Reverend Apostle Suann Gibbs, from St. Peters, Barbados, described her as “a woman whose life has been changed and transformed by the love and grace of God,” and spoke of the work that Ms. Motayne has done to send barrels of food and personal aid back to families in the Caribbean. She asked that the Court show mercy. Falsome Clark, another member of the church community, also spoke positively of this Caribbean initiative.

28Dr. Afolobi Bankole, the Senior Pastor of a religious congregation located in Oshawa, believes she is “compassionate and empathetic to the plight of others,” kind- hearted, and that her goodwill and volunteerism has contributed to helping the ministry succeed its community initiatives. Dr. Bankole knows Marcia to be a woman of good repute and said, “anything otherwise would be significantly out of character.” He believes she is “a good citizen” who, “like any mortal, may falter." He urged leniency to “help Marcia put her ordeal behind her, but also start the healing process for her and her two sons.” Unfortunately, he said nothing about how such a sentence would assist the staff and residents of NVT to start their own healing process.

29Kadija Lodge-Tulloch met Ms. Motayne through their mutual involvement in church ministry. To her, Ms. Motayne “has demonstrated Christ-like qualities in how she conducts herself and has shown herself to be a woman of integrity and honesty”, who, in her view, “possesses morals and good character, is caring and compassionate, and continues to stand in the gap and meet the needs of others without expecting anything in return.”

30The final letter from Ms. Motayne’s church family comes from Minister Marlene Bishop, who says that they developed their friendship because they were “both passionate about helping people in desperate situations.” Ms. Bishop wrote that Ms. Motayne has gone beyond the expected to support people "in need, especially those who were downtrodden and destitute." She concludes her letter describing Ms. Motayne as a great mother, friend and prayer partner, who “has always conducted herself as a woman of integrity, faithful, genuine and honest." She states that “Marcia is so caring, compassionate and selfless; she would put the needs of others before her own." (Emphasis added.)

31As these letters show, Ms. Motayne is described as an honest person, someone who cares for others who are downtrodden, a person who wants to help other disadvantaged human beings, a person who would put the needs of others before her own. The offence over the years it continued is described as “totally unlike her and out of character.”

32I accept that Ms. Motayne’s sons honestly describe their views of her strengths and love as a mother. It is not surprising that they cannot imagine a person they love committed this offence. I am also saddened by the inevitable fact that their mother will be taken away from them for a period of time, because she must be sentenced to a significant custodial sentence.

33The other referees view Ms. Motayne in a strongly positive light, but these views are based mostly on their experiences with her post-offence. Yet, none of them says a word about this offender having ever expressed an apology, remorse, or having demonstrated any personal insight into the damage she caused, or the gravamen of the crime she committed from a position of trust.

34There has frankly been no meaningful acknowledgement that she committed the crime that she has been found guilty of on overwhelming evidence that she refused to accept. That is why the trial lasted almost three weeks and why there was not a single admission of fact conceded by the defence.

35Far from the cases where an accused person admits elements of the offence, or admits culpability, there has been no acknowledgment of wrongdoing by this offender. It

is all about her problems, not the problems her criminal planning and conduct caused for others. Several of Ms. Motayne’s referees do claim to understand these offences and the moral culpability that underlies them, but they do not seem to understand the true gravamen of this continuing offence, committed over a period of four years.

36I cannot accept these glowing descriptions of Ms. Motayne’s character and honesty in the face of the facts of this fraud, as I have found and describe them later on in these reasons. Despite the wishful beliefs of Ms. Motayne’s family and supporters, sadly, the core of Ms. Motayne’s character is neither glowing, nor is it honest.

37Perhaps and most likely, Ms. Motayne’s character has evolved since these crimes were committed. I sincerely hope that it has. As several handwritten letters attest, I hope she has served a helpful role to others held in pre-trial detention at the Vanier Centre in Milton. But despite their evident wishful thinking, the woman these referees describe in their letters is someone other than the person who committed these offences.

38I understand the inability of these referees to conceive of the egregious crime perpetrated by this offender. They do not recognize the cold, deceitful, remorseless, but prepared, precise, and controlling character of the person who committed this offence, not just once or twice, but every two weeks, 26 times a year when payroll deposits were made, over at least four, if not more, years. The monies taken were intended to improve, as marginally as possible, the quality of the difficult lives of NVT’s residents. In my view, Ms. Motayne’s true character is far better demonstrated in her participation in the fraud before the Court than it is in the defence support letters.

39If there was any uncertainty on the point, I find that my conclusion was confirmed by the conclusions of Dr. Daniel Toguri, a Forensic Psychiatrist at CAMH, who performed an assessment of Ms. Motayne on my order at the request of the defence. His opinions are set out at pages 14-16 of his September 13, 2019 report to the court, filed as an exhibit.

40His report makes clear that the offender has a long-documented history of low intensity chronic depression, and that she has had multiple intermittent episodes of more severe depression, prior to and during the years when the index offences were being committed. Dr. Toguri described it, in part, as follows:

The major depressive episodes that Ms. Motayne experienced prior to the material time, occurred during periods of psychosocial stress…Over the material time, the degree of severity of Ms. Motayne’s depression may have fluctuated in response to treatment and changes in Ms. Motayne’s social and work environment, but I think it most likely that she suffered from symptoms of depression over the years during which the offence occurred.

41However, Dr. Toguri found there was a clinical disconnection between the crime and Ms. Motayne’s presentation and her endorsement of amnesia during her account to him of the fraud offences. When Dr. Toguri interviewed Ms. Motayne, she claimed she could not recall having made the fraudulent transactions. However, in his opinion, her claimed inability to recall the details of fraudulent transactions undertaken over four years cannot be explained by a mental illness. Severe depression can reduce depressed people’s concentration and ability to retrieve memories efficiently, but the clinical presentation of impaired memory due to depression is very different from Ms. Motayne’s presentation of claimed amnesia during his interactions with her.

42Ms. Motayne rigidly endorsed that she had no recall of the fraudulent transactions, whereas, in his experience, in severe depression cases, some memory of a given event is always present, but it is a memory that may have less clarity and/or may take longer to retrieve. This experiential conclusion caused Dr. Toguri to conclude that Ms. Motayne’s claimed amnesia was much more likely a means she adopted to avoid providing information that she perceived might be disadvantageous to her legal defence.

43Dr. Toguri accepts and acknowledges that adverse childhood events, marital difficulty, and financial stress are unfortunate but common features in the lives of many persons who access mental health clinics for management of depression. Nevertheless, in his clinical judgment, the remarkable feature in her case is that she was able to and did perpetrate the index offence. While he concedes no expertise in financial matters, based upon the documentation he reviewed, he was impressed by the organization, duration, and total dollar value of the offence. He rejects that the symptoms of depression that Ms. Motayne experienced at the material time, would or could lead to her initiation or continuation of the offence.

44His reason was simple. It was that complex tasks that require organization, concentration, and persistence, such as the precisely organized and concealed fraud carried on by this offender over four years, could and would typically have been impaired by symptoms of severe depression. Yet the evidence definitively shows that it was this offender, who claims to have no memory of committing these offences over four years due to severe depression, who did indeed commit the offence, every two weeks, for four years, remorselessly and with planning and deliberation.

45Dr. Toguri reports that Ms. Motayne had told him that she had experienced financial stress in the time approaching the offence, and she was the sole supporter of her sons. As Dr. Toguri explained, he could accept professionally and understand that if a caregiver was unable to provide for the basic needs of her or his dependent, like Ms. Motayne’s sons, that caregiver might be tempted to illicitly obtain funds for the purpose of supporting the dependent if faced with no legal alternative. Yet, while again conceding a lack of financial expertise, the magnitude of funds taken by Ms. Motayne, and the

record of expenditures she made upon luxuries, vehicles, and trips that are well beyond the financial means of most ordinary people, seemed to him to be in excess of funds that would have been needed to meet the basic needs of Ms. Motayne’s dependents.

46All of this led Dr. Toguri to state his professional psychiatric opinion, directly and without reservation. I accept that opinion as the only reasonable inference and conclusion that can be reached on this sorry state of facts. As the doctor described it:

In my clinical opinion, Ms. Motayne’s personality was central to her offence. She possesses a personality, which makes her willing to use deceit and exploitation of others, in a goal-directed manner, for her personal benefit.

Circumstances of the Offences The offences

Circumstances of the Offences

47The facts of an offence are of critical importance in the sentencing process, because the nature of the offence and the accused's role in committing it inform the assessment of her moral culpability. There was only one person involved in the planning and careful execution of this fraud. That person was Ms. Motayne.

48The jury found Ms. Motayne guilty of one count of fraud over $5,000, committed over a period of four years. Subsection 724(1) of the Code stipulates that in determining her sentence, I may accept any information disclosed at the trial or at the sentencing proceeding, or any fact agreed upon between the prosecutor and the defence, but there was no agreement during the trial on any of the facts in this case.

49I am required to accept as proven all facts, express or implied, that would have been essential to the jury's verdict of guilt, but I may also make findings of any other relevant facts that I find were disclosed and proven by the evidence at the trial to the criminal standard. At the sentencing hearing, either party may also present evidence with respect to those facts.

50R. v. Gauthier2 instructs that in determining a fit sentence on conviction after a jury trial, I am obliged as the trial judge to reach my own conclusions on the facts and resolve any relevant conflicts in the trial evidence. The defendant need not receive the benefit of the most favourable view of the evidence. In this case, the evidence was thorough, detailed, persuasive, and overwhelmingly inculpatory of Ms. Motayne. This assisted my fact-finding analysis.

2 (1996), 108 C.C.C. (3d) 231 (B.C. C.A.), at para. 24.

51I also heard further evidence from Andy Rotsma on the additional costs that NVT incurred arising out of the fraud. Those costs included the cost of retaining Ms. Sandra Essex, an accountant with exceptional experience in the non-profit sector. It was Ms. Essex who discovered this fraud only weeks after Ms. Motayne had been fired. She applied her forensic accounting skills to unearth the scope of the fraud and to quantify it.

52Mr. Rotsma also testified about the legal costs incurred, first in defending against Ms. Motayne’s baseless wrongful dismissal action against NVT, and second in seeking restitution in a civil action. Schreck J. granted NVT summary judgment against Ms. Motayne for over $900,000. Additional bank costs were incurred by excess use of NVT’s Letter of Credit, but Mr. Rotsma acknowledged that it was too difficult and time- consuming to obtain the documentation to prove that additional component, and thus those amounts were excluded from the additional costs claimed.

53It is plain that the jury necessarily reached several distinct findings of fact in reaching their verdict of guilt: (i) that Ms. Motayne had perpetrated a significant fraud against NVT, (ii) that she intended to commit the fraudulent acts that resulted in loss to NVT, and (iii) that she did so by deceit, falsehood or other fraudulent means.

54They found those facts based upon the evidence of the witnesses who testified, the documentary trail of banking and business records that were introduced by the Crown, and the analytical exhibits prepared by forensic police investigators. They found that it was this defendant who carried out the almost 160 fraudulent transactions documented in the Exhibits, undertaken between April 2012 and August 15, 2015.

55My own review of the evidence supports their findings that from April 2012 to August 2015, Ms. Motayne carried out a large-scale fraud where she stole $904,784.80 from NVT. That fraud lasted for at least three years and four months. Had further forensic investigation been done, I accept that it is likely the fraud extended even farther back than 2012, but the charity could simply not afford to go back further in time.

56The fact that the fraud amounted to approximately 10% of the $9,000,000 annual operating budget of the charity evidences its magnitude. The evidence showed that

$904,784.80 was actually transferred from NVT’s accounts to accounts controlled by Ms. Motayne during the period of the fraud. I also find, based on Mr. Rotsma’s evidence, that after the anticipated recovery of $109,116.09, the net loss to the charity was over $1 million dollars, once audit and legal fees are taken into account.

57Those additional costs arising from the fraud were approximately $300,000. I accept the reliability of Mr. Rotsma’s evidence quantifying those additional amounts, but I acknowledge there was no documentary evidence provided of the precise amounts of cost incurred. Nevertheless, I note that Mr. Rotsma already demonstrated restraint in his

evidence because he curtailed the amount of claimed costs to $300,000, rather than the

$350,000 that could have been found to be the costs amount if the Bank fees were included. Mr. Rotsma acknowledged in cross-examination that he had documentary support for all of those amounts, but he had not brought it with him. I accept that evidence. As such, even without that documentary proof, I am satisfied and find for the purposes of the restitution orders detailed below, that those additional costs would have totaled the $300,000.

58It puts the matter into shocking perspective to realize that the disabled persons supported by this charity received a net allowance of only about $150.00 per month, after the bulk of their ODSP payment entitlements went to pay for the actual cost of their residence requirements. That $150 per month pales in comparison to the amounts Ms. Motayne was stealing, ranging from $4,000 to $5,000 in some months to over $20,000 in others.

59This fraud was complex and well-planned. Ms. Motayne modified payroll files using employee numbers of employees who were in the NVT payroll system, but who no longer worked for NVT, to transfer money into accounts she controlled. Thus, rather than going to the former employees, the money went into 6 different bank accounts controlled by Marcia Motayne. She made literally hundreds of false accounting entries in the financial records to avoid detection by spreading the amounts being stolen among various NVT cost centers, minimizing the appearance of loss and preventing it from being attributed to her. Close to the end, Ms. Motayne prepared false reports to management. She expressed “concern” that cost overruns were the result of unauthorized and excessive overtime charges by staff. They were not. They were the result of her fraud. She had taken active steps she took to prevent detection, and she caused management to believe other causes were to blame for NVT’s financial woes.

60I found two factual features provided the most stark and reprehensible evidence of her moral culpability. The first was causing NVT management to fire a clerk based on her false complaints of employee incompetence. She needed that employee to be fired because otherwise, sooner or later the clerk would have become aware of the fraud she was running day-to-day for over three years. The second was the steps she took to ensure that she was the only person capable of maintaining control over the payroll, the instrument of her fraud, from wherever in the world she might be.

61This was an egregious breach of trust against her employer who trusted her, against the staff of NVT who believed she actually shared their values, and against the disabled residents of NVT who had no choice but to trust and rely on her and others to care for them. Ms. Motayne was a professional Chartered Accountant. She earned that designation and licence at the same time she was in the early years of perpetrating this fraud. Her job, based on trust and professionalism, was to look after finances and to keep

them safe. Instead, she took, for her own use and benefit, funds that she was entrusted to apply for the benefit of some of the most vulnerable members of our society: the severely disabled.

Victim Impact Statements

62Twelve victim impact statements were filed as exhibits on this sentencing. Some were read to the court. The victims fall into several groups, all employed by or in some way involved in NVT’s day-to-day operations: Andy Rotsma, the Executive Director; Barbara Wentworth, a Director and mother of an NVT resident, Mark Jorgensen, a resident of NVT; Tina Christie, Fundraising Development Manager and Lyndel Hill, a fundraiser; Karen Cowan, a nurse and Director of Health Services; Lisa Morikawa, present Director, Finance and Administration; Julie Andrews, Director of Services; Mary Doris and Veronica Kahiga, both Service Coordinators; and finally, Ken White, NVT’s Quality Assurance Coordinator.

63In their own way, each of these individuals portrayed the damage caused to NVT by this fraud, to its staff, patients, residents, and to themselves, each from their own unique perspective. Those statements total almost thirty pages. They are exhibits and are available to the public. Their length precludes referring to all of them, but a summary and reference to select paragraphs will suffice to illustrate the extent of the deception that underlies this fraud, and the enormous damage it caused.

64Andy Rotsma explained, as he did for the jury in his extensive evidence given at trial, that the position of Director of Finance and Administration in the NVT agency is one of the most senior, one that required a high level of trust. But then they learned in September 2015 that Ms. Motayne had been stealing their money—a lot of it. She provided false financial reports, and she altered financial statements to hide the funds that she was stealing.

65Ms. Motayne’s dishonesty and deceit had an enormous impact on NVT. The impact has touched the people it supports and their families, its staff, its financial contributors, its Board of Directors, its suppliers, and its community partners. The list is lengthy, and the impact continues. NVT’s suppliers lost confidence in the agency based on late payments to suppliers, when it was she who took their money for her personal benefit, instead of paying vendors for services provided to NVT.

66Mr. Rotsma noted that dealing with theft is never an easy situation, but that when the theft is carried out by someone in a position of trust and involves a not-for-profit charitable agency that relies primarily on taxpayers' dollars, it is that much more disturbing. NVT is overwhelmed by the damage caused. It now finds it must work harder

to regain the trust of everyone who has been impacted by this offender’s conduct and make changes to ensure it never happens again.

67It disturbs Mr. Rotsma that Ms. Motayne has never shown remorse for her actions. He emphasized that restitution is a very important part of the resolution NVT seeks, not just to recoup the funds if possible but equally importantly, to send a clear message to anyone in a position of trust who contemplates committing fraud, that they will be caught and punished.

68The court heard the statement of Barbara Wentworth, who also testified at trial. Her son, Mark Jorgensen, lived at NVT for 19 years, but sadly died on August 19, 2017. Ms. Wentworth was also a member of the Board. Because of the fraud, NVT did not have the resources it should have had to help out her son when he needed it most.

69Ms. Wentworth was a new Board Member when she received the CRA demand letter alleging joint and several personal liability of all directors for the $702,000 debt CRA claimed it was owed by NVT for at-source withholding arrears. She was shocked. She had been on disability for health reasons, had limited financial means and felt threatened by the CRA letter and its ramifications. She doubts she will ever sit on a Board of Directors again, given that experience.

70Ms. Wentworth concluded stating:

That someone could steal from our agency and not understand or care what the impact would be on these individuals whose lives are so challenging is incomprehensible. And make no mistake about this. The front-line staff, the coordinators, the head office staff and the Board, all have been negatively affected by this fraud. But the ones most affected and most hurt by the fraud and its ongoing impacts are the people who live at NVT.

71Ms. Wentworth, also read out the statement prepared by her son, Mark, before he died in 2017, which painfully and thoroughly attested to the challenges of his life living with cerebral palsy, and the significant diminution of services and therapies that resulted from this offender’s fraudulent conduct.

72Another parent, Don Hooks, read a moving statement describing the assistance NVT has provided to his son and the support he feels for the staff of NVT for their courage and persistence in carrying on to provide the best service possible for residents in the wake of the fraud, despite the challenges.

73Tina Christie and Lyndel Hill described the impact of this fraud from a fundraising perspective. Ms. Christie found it emotionally numbing to have to acknowledge, in a

service organization for the disabled, that Ms. Motayne’s action was not motivated by her needs, but by her egocentric greed. Ms. Motayne’s fraud was not against a large organization with a hefty budget. It was from a non-profit organization with already limited means, seeking to attend to the residential needs of vulnerable members of our society with special needs. They do not have a lot of money but require greater financial support, and they are also remarkable individuals who have the right to live a decent quality of life.

74The greatest impact was on those people, good citizens, not seeking luxuries or comforts, but people who never complain and just want a good quality of life. The loss of revenue that arose out of the fraud threatened their community. Additionally, as Lyndel Hill explained, the network of financial support that had been built up over ten years from all sectors of the community was weakened substantially. Without that support, fund raising events were significantly impacted, and even the most basic levels of renovations needed in the homes could not be started. Old wheelchair-accessible vans could not be replaced. The long-term plan to embark on a major capital campaign came to a halt. It could not move forward. Fortunately, former financial supporters now recognize that this crime resulted from malfeasance of a formerly trusted employee. The discovery of the fraud has now allowed previous sponsors and supporters to understand why these difficulties had occurred and the fundraising challenges have started to turn around.

75The last group filing victim impact statements consisted of important staff members of NVT: Karen Cowan, Lisa Morikawa, Julie Andrews, Mary Doris and Veronica Kohiga. These individuals were uncomprehending and distressed that there could be people like Ms. Motayne, working beside them and pretending to be a part of the team and to share NVT’s values and mission. However, they have also seen NVT start to recover, and they have seen the strength and resilience of the staff increase as they came together, stronger in their values and mission. They have found ways to maintain the level of service that the residents deserve and need, and all have made personal sacrifices to ensure this.

76There is also anger, given that Ms. Motayne knew of NVT’s difficult day-to-day financial circumstances, yet still found a way to dupe NVT into thinking it was overspending and even unnecessarily laying off staff, while she continued to steal and benefit herself at the expense of others. They expressed hope that the sentence for this crime would not only reflect the penalties for theft and fraud, but it would also reflect the impact the crime has had on the lives of people who depend on NVT completely for their safety, well being and for the quality of their lives.

77I would conclude this summary with Ken White’s observations. He reminded us that the people NVT supports have no choice but to trust that NVT will provide the best care possible and protect them from harm. They can sleep and live peacefully knowing

that NVT will look out for them and help them achieve their goals and dreams. As such, he felt totally deceived by this offender's assurances that once she received her CGA designation, she was promising to work for NVT and its people, not for the money, at the same time she was perpetrating this long continuing fraud. She exploited his and NVT’s trust, the families and friends of the people NVT supports, and most importantly, the residents themselves, people like Mark Jorgensen, people who are some of the most vulnerable people in society. Mr. White concluded his statement with a blunt condemnation of this offender:

We chose to trust you. You chose to betray that trust. This is all on you. Trust is valuable and delicate. We handed it to you. You took it and smashed it. We are only beginning to put it back together after years of collecting the shards. We will be whole again but the fractures will be visible for many years to come. We will move past this catastrophic betrayal of trust. We will move past you. In many ways we already have. There will be some solace with you going to prison.

Relevant Principles of Sentencing

78The purpose and principles of sentencing are set out in s. 718 of the Code. The fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. We seek to achieve this purpose by imposing just penalties that have one or more of the following objectives: (i) denouncing unlawful conduct; (ii) deterring this offender and others from committing offences; (iii) imprisoning offenders where necessary; (iv) to foster rehabilitation of offenders; (v) providing reparation for harm done to victims; and (vi), promoting a sense of responsibility and acknowledgement in offenders for the harm they have done to victims and to the community.

79The fundamental principle of sentencing is found in s. 718.1 of the Code. It instructs that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. Section 718.2 of the Code requires that other principles also be taken into account. These include:

(i) that the presence of aggravating or mitigating circumstances relating to the offence or the offender may cause a sentence to be increased or decreased;

(ii) that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances; and finally,

(iii) that the totality principle requires that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

80The Supreme Court explained these principles in R. v. Nasogaluak3, where the Court held at para. 43 that:

[T]he language in sections 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and circumstances of the offender. The determination of a "fit" sentence is subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight given the particulars of the case. (R. v. Lyons, [1987] 2

S.C.R. 309; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.)). The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentence for similar offences. The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided in its facts, subject to the overarching guidelines and principle in the Code and in the case law.

81Our courts have often recognized, most recently in R. v. Drabinsky4, that the dominant sentencing objectives in significant commercial fraud cases, and this is a significant commercial fraud case, must be denunciation and deterrence. Given that the actual fraud loss to NVT in this case approaches one million dollars, and the overall economic loss taking account of costs of recovery well exceeds $1,000,000, I think the same objectives, denunciation and deterrence, both general and specific, are most important in this case.

82Denunciation and retribution are core principles of sentencing. As Lamer C.J.C. explained in R. v. C.A.M5, at para. 81:

…Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

3 2010 SCC 6.

4 2011 ONCA 582, at para. 160.

5 [1996] 1 S.C.R. No. 500.

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation, is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed, in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

83In Drabinsky, the Court of Appeal made it clear at para. 162 that the quantification of an appropriate sentence like this requires a consideration of denunciation. Specifically, the length of the sentence was linked to its denunciatory effect. In this case, an appropriate sentence must denounce this criminal conduct that targeted vulnerable disabled persons by defrauding the charitable, non-profit agency that was tasked with providing for their welfare in increasingly scarce economic times.

84Deterrence, as Laskin J.A. explained in R v. Bogart6, refers to the imposition of sanctions to discourage others from engaging in similar criminal conduct. General deterrence is the most important sentencing principle in major fraud cases, especially when it is committed by a person of trust.7 General deterrence in fraud cases warns people that substantial penitentiary sentences will be given to the offender in these types of crimes, to say nothing of the serious disgrace to them and everyone connected with them and their probable financial ruin. When general deterrence is factored into a sentence, the offender is given a severe sentence, so others are aware of the consequences in participating in fraudulent activity.8

85On the other hand, when deterrence is aimed at the offender before the court, it is called "specific deterrence", and a specifically deterrent sentence seeks to specifically deter this particular offender from re-offending. Given the other orders that will be made here limiting her future employment, and Ms. Motayne’s loss of her professional designation, I have less concern that she will represent a significant risk of reoffending. However, as I stated earlier, the principles of general deterrence predominate in large- scale fraud cases.

86In R. v. Pavao9, Molloy J. notes that Parliament enacted changes in 2004 to the law relating to sentencing for fraud and other matters. The maximum sentence for a fraud

6 R. v. Bogart, (2002) 2002 CanLII 41073 (ON CA), 61 OR (3d) 75 (C.A.)

7 Ibid, at para. 29.

8 Ibid, at paras. 30-31.

9 2018 ONSC 4889, at para. 25.

involving more than $5,000 was formerly 10 years in prison, but Parliament increased the maximum sentence to 14 years, effective September 15, 2004. Not only did it increase the statutory range of sentence, it also enacted specific provisions that now provide direction to sentencing judges of specific aggravating factors that are to be taken into account in sentencing for significant fraud cases. In providing that guidance, it is plain that Parliament intended that serious and sophisticated frauds should be treated very seriously, and will call for suitably serious sentences.

87The importance of denunciation and general deterrence in significant commercial frauds has repeatedly been emphasized by courts at all levels. That factor will most often find expression in the length of the jail term imposed. In Drabinsky, the Court of Appeal rejected the argument that longer sentences do not enhance general deterrence because that argument ignores that the determination of the appropriate length of sentence is also quite properly driven by the need to publicly denounce the offender’s criminal conduct. 10

88I find that this case falls squarely within those principles. Ms. Motayne carried out this fraud with considerable planning, deliberation, and, I might add, dedication, over a period of years. She was seemingly motivated solely by greed, or at least there is no other motive that has emerged through the evidence. The impact of her criminal conduct on NVT and its residents was profound. Her conduct must be denounced and only a significant custodial sentence has any likelihood to deter other criminally-motivated individuals from undertaking similar offences.

89Further, apart from the prayers and hopes expressed in the letters of support filed on her behalf, although I accept there is some limited prospect present, it is difficult for me to see that rehabilitation is a significant factor in this case, given the entire absence of remorse for her conduct and seeming distancing of herself from responsibility for her criminal conduct.

90Ms. Motayne is 51 years old. She will be in her late 50s when her sentence is completed, but it does not appear to me that the length of her sentence will either assist or interfere with her rehabilitation. She will need to find employment to survive but will be prevented from engaging in certain lines of endeavor involving other people's money or public trust. Hopefully, she will have her depression issues under better control and will be motivated to earn a good living legitimately when her sentence is complete.

10 Drabinsky, at paras. 160 and 162

The Appropriate Sentence Range of Sentence

91Even before s. 380(1)(a) of the Criminal Code was amended to raise the maximum sentence for the offence of fraud over $5,000 to 14 years, the Court of Appeal’s decision to increase the sentence in Drabinsky showed that a new sentencing rigour would be applied for large scale, premeditated frauds. In that case, the court observed at para. 164:

After reviewing several authorities, the trial judge fixed the appropriate range of sentence for large scale, premeditated frauds involving public companies at between five and eight years. While one might quibble about both ends of that spectrum, the trial judge was correct in determining that crimes like those committed by the appellants must normally attract significant penitentiary terms well beyond the two-year limit applicable to conditional sentences.

92No two cases are alike, and it is difficult to define a clear range of sentence for an offence such as this well planned, continuing fraud, but I agree with Ducharme J. in R. v. Dhanaswar11 that the appropriate range of sentence is between three to eight years imprisonment. A number of cases he reviewed in that case also pre-dated the amendments to the Criminal Code.

93In these circumstances, defence counsel contends the range is lower, say three to five years, and that a fit sentence would be one of four years12. I disagree with that assessment. It might be suitable in other cases, but it is not here when I note that the cases in which the sentence imposed was less than five years for frauds involving a breach of trust have significant differences that distinguish them from this case.

94In Pavao, Molloy J. shared Ducharme J.’s difficulty in defining the limits with precision. This is not surprising. Sentence ranges will never be precise. In Pavao, counsel agreed that the bottom end of the range was three years, but they differed on the upper limit, the defence contending for five years while Crown counsel argued the top of the range had moved up in recent jurisprudence to eight years.

11 R. v. Dhanaswar, [2014] O.J. No. 688 (S.C.J.).

12 Decisions advanced by the defence on this sentencing hearing were: R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183; R. v. Hooyer, 2016 ONCA 44, [2016] O.J. No. 280 (C.A.); R. v. Dieckmann, [2017] O.J. No. 3499 (C.A.); R. v. Wa, [2015] O.J. No. 771 (C.A.); R. v. Khatchatourov, 2014 ONCA 464, [2014] O.J. No. 2847 (C.A.); R. v. Poutney, [2006] O.J. No 2964 (C.A.); R. v. Wilson, 2003 CanLII 48181 (ON CA), [2003] O.J. No. 1047 (C.A.); R. v. Dobis, 2002 CanLII 32815 (ON CA), [2002] O.J. No. 646 (C.A.); R. v. Roberts, [2017] O.J. No. 823 (S.C.J.); R. v. Knight, [2014] O.J. No. 5440 (S.C.J.); R. v. Singer, [2013] O.J. No. 3010 (S.C.J.); and R. v. Victorino, [1999] O.J. No. 1782 (O.C.J.)

95I agree that the range has moved up somewhat in recent years, but it remains difficult to define where that upper limit now rests. Here, however, Crown counsel seeks to kick it up, yet another notch, suggesting that even if the top of the existing range is eight years, this is a case that merits a sentence of between eight and ten years13. I am not persuaded by that position. While I accept the circumstances of this offence are egregious, in my view that is overreaching.

96The range of three to five years relies on Court of Appeal decisions in the 1990s and early 2000s. In R. v. Dieckmann14, the trial judge concluded those cases established a range of three to five years for a large-scale $5.1 million fraud against the Canada Revenue Agency, and sentenced one offender to four years and a second offender (who had a minor role) to two years less a day. Those sentences were upheld on appeal, but without appellate comment on whether the stated range was correct.

97In R. v. Khatchatourov15, the court found that the range of sentence was three to five years. The amount of the fraud was slightly over $1 million. The offenders were sentenced to four years in prison. The accused appealed conviction and sentence. It was argued that the range should have been lower than three to five years. The Court of Appeal disagreed. It held that the four-year sentences were fit and that the trial judge "did not err by finding that the range for fraud offences like the ones committed by the appellants was three to five years."16 However, it is plain that the Court specifically recognized there, unlike here, that the offenders had not been in a position of trust and the consequences for the victims had not been devastating.

98Dhanaswar17 involved a fraud perpetrated by a husband and wife in which 31 investors were duped out of $2.3 million over the course of several years. Ducharme J. sentenced Mr. Saheed to seven years and Ms. Dhanaswar to six years (on the basis that although she was a knowing and active participant in the frauds, she was less involved than her husband). In reaching that conclusion, he considered the range of sentences for offences of this nature, noted that Drabinsky had been decided prior to the penalty for fraud being increased, and held that the range for a large-scale fraud of the nature before him was three to eight years in prison.

13 Decisions advanced by Crown counsel on this sentencing hearing were: R. v. Pavao, 2018 ONSC 4889; R. v. Dhanaswar, [2014] O.J. No. 6388 (S.C.J.); R. v. Dhanaswar, 2016 ONCA 172; R. v. Reeve, 2018 ONSC 3744; R v Cowan, [1987] B.C.J. No. 2171 (B.C. C.A.); R. v. Tennina, 2013 ONSC 4694; R. v. Davatgar-Jafarpour, 2019 ONCA 353; R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 58 O.R. (3d) 536 (C.A.); R. v.. Scherer (1984), 1984 CanLII 3594 (ON CA), 16 C.C.C. (3d) 30 (Ont. C.A.); and

R. v. Ferguson, 2008 SCC 6.

14 R. v. Dieckmann, 2014 ONSC 717, aff'd [2017] O.J. No. 3499 (C.A.).

15 R. v. Khatchatourov, 2014 ONCA 464, [2014] O.J. No. 2847 (C.A.)

16 Ibid, at para. 45.

17 Dhanaswar, supra note 9.

99What the case law firmly establishes is that convictions for significant, long-term frauds, involving a breach of trust and that has devastating consequences for the victims, will attract a substantial penitentiary term. In my view, although it exhibits procedural differences, of all the cases put forward by both Crown and defence counsel, the closest in terms of circumstances of the offence is the decision in R. v. Knight18.

100The background facts in Knight were very similar to those present here. The accused was employed by a registered charity from 1997 to 2009, most recently as director of finance. As in this case, that charity provided residential housing and training for adults with developmental challenges. It received the bulk of its funding from the provincial government, just as NVT did in this case.

101Ms. Knight made personal purchases using the corporate credit card that the charity had issued to her, but those purchases were not related to the organization's business and were not properly accounted for. Ms. Knight hid her fraudulent conduct by manipulating general ledgers and reports to the board of directors, just as Ms. Motayne did. Over a period eight years, from the end of 2001 to 2009, she misappropriated between $550,000 and $900,000 of the charity’s money for her personal benefit, through thousands of credit card transactions.

102In that case, Ms. Knight pleaded guilty to fraud exceeding $5,000. Following her sentencing hearing, she was sentenced to four years' imprisonment and ordered to pay compensation of $200,000. The aggravating factors, all of which bear similarity to factors in this case, included the magnitude of the fraud, its impact on the organization and its clients and residents, the extent of time over which the offence took place, the number of transactions involved, the planning and deliberation required, and the enormous breach of trust perpetrated against the charity.

103Beaudoin J. could find nothing, any more than I have been able to find anything in this case, to explain the accused's actions other than a distorted sense of entitlement and greed. He concluded that her actions led to a moral bankruptcy that could not be condoned. There, like here, Beaudoin J. gave thoughtful consideration to the inevitable fact that a custodial sentence was going to deprive Ms. Knight’s 22-year-old daughter of her only parent for the duration of that sentence.

104Nevertheless, a term of imprisonment at the lower end of the range was not appropriate. Beaudoin J. found that a four-year sentence was called for, despite the presence of strong mitigating factors. Those factors included (i) Ms. Knight’s guilty plea and full co-operation in the investigation, (ii) her absence of a criminal record, (iii) the fact that she acknowledged and took full responsibility for her criminal conduct, (iv) the

18 [2014] O.J. No. 5440 (S.C.J.).

fact that she exhibited genuine remorse, and (v) the fact that she was unlikely to re- offend. In addition, Beaudoin J. ordered that Ms. Knight make compensation payments, which, along with the $350,000 agreed to in settlement of civil proceedings against her, would ensure that she never profited from her crime.

105I find the factual circumstances in Knight to be on all fours with those present here. There is one major difference. Apart from the absence of a criminal record and my acceptance of Ms. Motayne’s unlikelihood to re-offend in the future, none of the other mitigating factors in that case were present here. As such, as I will explain below, the appropriate range in this case is at least four to eight years, but the sentence that is imposed here must be closer to the higher end to account for the complete absence of the mitigating factors that were present in Knight.19

Mitigating and Aggravating Factors Mitigating Factors

Mitigating and Aggravating Factors

106 Section 718.2 of the Criminal Code requires a sentencing judge to consider any relevant mitigating or aggravating circumstances, relating to the offence or the offender. Regrettably, there appear to be few mitigating factors in this case. Such as they are, however, they do include the following:

(i) Ms. Motayne does not have a prior criminal record and appears to have previously been a person of good character;

(ii) Prior to the commencement of these frauds Ms. Motayne appears to have been steadily employed and a law-abiding citizen since she came to Canada from Guyana. However, subsection 380.1(2) specifically precludes her employment during the time these frauds were perpetrated from being considered mitigating;

(iii) Ms. Motayne raised two boys, Brandon and Matthew, aged 23 and 19, largely without the assistance of the boy’s father after the marriage ended; and

(iv) Motayne has the support of family members and friends who have provided the court with numerous letters of reference and support.

19 I note that two other cases advanced by defence counsel as appropriate, R. v. Wilson and R. v. Roberts, at supra note 10, fail to meet the requirements of this case, because in those cases, like in Knight, the sentences imposed directly resulted from guilty pleas by the accused, which is a mitigating factor I cannot take into account in this current case.

107In Pavao20, at para. 85, Molloy J. discusses other important factors that will usually give rise to mitigation of sentence:

The Crown submitted, and I agree, that there are four significant factors that most commonly have a mitigating impact on sentencing for large scale frauds: (1) guilty plea; (2) substantial recovery; (3) cooperation in recovery; and (4) motivation other than greed or financial gain. None of these factors exist here. The absence of these factors (particularly the absence of a guilty plea), is not aggravating but serves to distinguish this case from other situations in which the offender had the benefit of important mitigating factors to support a lesser sentence. In particular, I note the absence of any recovery by the complainants. (Emphasis added.)

108However, the circumstances are no better here than they were in Pavao. Ms. Motayne did not plead guilty, despite what might reasonably have been regarded as an overwhelming prosecution case against her, so she cannot have the benefit of a guilty plea as a mitigating factor. There has been no substantial recovery. Of the $904,000 fraudulently taken by this offender, only $109,000 has been recovered. That leaves just less than 90% of the amount stolen un-recovered, a total of $795,668.71. Ms. Motayne has not co-operated in any way in the recovery of the missing funds, and it does not appear that her motivation was anything but greed.

109Defence counsel argues that Ms. Motayne’s mental illness should be treated as a mitigating factor. She relies on the results of Dr. Toguri’s assessment and Hainey J.’s brief finding in R. v. Singer21 at para. 23, that it is mitigating that the offender in that case had the medical disability of suffering from bipolar disorder for which he required medication. I accept that an offender’s mental health circumstances could be a mitigating factor. As Ms. Davis observed, none of the Crown’s cases dealt with a person with mental health issues, except in Pavao, where the offender suffered from depression. In that case, Molloy J. gave it only minimal weight as a mitigating factor:

…[Mr. Pavao] requires a number of medications, as well as a healthy diet and physical exercise. All of these can be easily handled in the penitentiary system. Although a proper psychiatric report was not filed, and although Mr. Pavao's family doctor, Dr. Klinghofer, felt unqualified to offer an opinion about his mental health, I accept that Mr. Pavao also suffers from depression. Again, this is a condition that can be managed within the penitentiary system. I do not see any of these conditions as requiring a reduction from what would otherwise be a fit sentence. That said, I recognize that a prison sentence will be harder for Mr. Pavao to serve than it would be for a younger person without any health issues. To this extent only, I consider these personal circumstances of Mr. Pavao as a

20 Pavao, supra note 7.

21 R. v. Singer, [2013] O.J. No. 3010 (S.C.J.).

factor that may serve to reduce the length of sentence to which he might otherwise be subject.22

110In this case, however, while Ms. Motayne’s history of chronic depression is well acknowledged by Dr. Toguri, it is not a cause of or closely related to the offence. He finds Ms. Motayne's seeming inability to remember details of the fraud as self-serving. He rejected that the symptoms of depression that Ms. Motayne experienced would or could lead to her initiation or continuation of the offence. And he concluded that Ms. Motayne’s personality was central to her offence because in his view, her personality made her willing to use deceit and exploitation of others, in a goal-directed manner, for her personal benefit. As a result, in my view, Ms. Motayne’s circumstances were no more mitigating than the circumstances in Pavao.

Aggravating Factors

111As regrettable as it is that there are few mitigating factors in this case, it is even more regrettable that there are numerous aggravating factors present. These include that the crime involved a particularly egregious breach of trust in a situation of institutional vulnerability. This was not a spontaneous crime but one that involved advanced planning and a continuing effort to deceive. Not only is it a crime of dishonesty, but it is also one of considerable duration lasting for several years.

112The Criminal Code was amended in 2004 to address sentencing in cases of financial fraud. As a result of these amendments various circumstances were added and statutorily stipulated to be aggravating, including those enumerated in s. 380.1(1). A number of those statutorily aggravating factors are present in this case.

113The amount actually stolen from NVT totaled $904,784.80, but the net loss sustained by the charity, after recoveries to date, exceeds $1 million once the additional

$300,000 of audit and legal fees is taken into account. Those were costs that were incurred by NVT to (i) discover and unearth the depth and extent of the fraud, (ii) defend against the spurious wrongful dismissal action commenced by Ms. Motayne against NVT, and (iii) commence a recovery action and obtain summary judgment against her.

114Section 380(1.1) requires a minimum sentence of two years “if the total value of the subject-matter of the offences exceeds one million dollars.” In my view, those costs do form part of the total value of the subject matter of the offences, necessitating a sentence of at least two years, that is, a penitentiary sentence, and as well, the quantum should be considered particularly aggravating under ss. 380.1(1)(a). The magnitude, complexity, duration and degree of planning of the fraud was significant, but even if the

22 Pavao, supra note 7, at para. 77.

amount actually stolen directly through the fraud was not over $1 million, this was a significant financial fraud and that aggravating fact requires a significant sentence.

115The offence involved a "large number of victims" as referred to in s. 380.1(1)(c) of the Criminal Code and this is also an aggravating circumstance.

116The devastating impact of the fraud on the victims was powerfully described in the victim impact statements and it is also a statutory aggravating factor. This is particularly so, given their personal circumstances including their age, and particularly their health and financial situation, which are all factors I must consider under s.380.1(1)(c.1). As I stated earlier, those impacted the most by this crime are individuals with disabilities, often with special health needs, and they depend on NVT for their care and well-being. They are not people with a lot of money. Taking money away from NVT means taking away important services for NVT's residents.

117It is also an aggravating factor if the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence, and if the offender destroyed records related to the fraud, under s. 300.1(1)(e) and (f). In committing this fraud, Ms. Motayne not only took advantage of the high regard in which she was held by the community as a Chartered Accountant, but also violated the professional standards of her licensing body. She did this by orchestrating a fraud, by dishonestly manipulating the NVT payroll to illicitly convert and direct monies that belonged to NVT to her own use. She also concealed and destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. Indeed, she committed her final fraudulent act, after being fired, by deleting and changing banking records to try to destroy evidence, and then disconnect herself from the financial structure she created. The discipline report of the College which rebuked her in the strongest of terms and revoked her CPA designation shows the degree of aggravation present related to Ms. Motayne's betrayal of the principles that govern accountants, and in doing so betrayed the entire profession.

118It is also aggravating that the result of this offender’s fraud has made the road forward for this charity exceptionally difficult from a fundraising perspective. Yet in a time of increasing and deliberate constriction of the flow of government funding that is the lifeblood of charities like NVT, the role of fundraising has necessarily taken on heightened importance. In R. v. Tennina23, C. Gilmore J. sadly makes the following observation:

Ms. Tennina, by her actions, has compromised the good will and deeds done by so many charities. Who could blame an individual for hesitating to donate in the

23 Supra note 11, at paras 8 and 9.

future after reading about this case? That damage cannot be calculated in dollars and cents.

The result is that charities who already find it difficult to obtain donations, must now feel compelled to demonstrate legitimacy before even asking for donations.

This is exactly the experience that NVT has had to endure. As Lyndel Hill explained, the network of financial support that had been built up over ten years from all sectors of the community was weakened substantially. As Mr. Hill explained, the fundraising challenges have now started to turn around, but this can never erase the difficulties NVT has faced over the past four years owing to this offender's dishonesty.

119NVT has had over $900,000 stolen from it, has had to incur another $300,000 in costs due to the fraud, but they have received reimbursement for only $109,000 of the stolen funds. There remains another $81,000 as NVT’s share of the proceeds from the sale of Ms. Motayne’s home, and that share is presently frozen in the accounts of the Trustee in Bankruptcy. Unfortunately, there is presently no realistic prospect of restitution here. While Defence counsel says a restitution order is excessive and have opposed it, I will make such an order. Nevertheless, unless Ms. Motayne discloses where the monies have gone and whether any remain, I do not think there is any realistic chance that Ms. Motayne will pay back much, if any of the money she took from NVT. Given her age, her limited post-incarceration prospects and, in particular the fact she will not be able to work in any field involving control over other people's money, I see no way she will ever be able to earn sufficient money to make restitution. That low likelihood of restitution is also aggravating.

120To summarize, it is plain that there are limited mitigating factors here, but a very substantial accumulation of aggravating factors. All frauds involve dishonesty, but the frauds in this case are striking for the scope and nature of that dishonesty. Ms. Motayne told lie after lie about the causes of NVT’s financial difficulties, about other employees, causing an unjustified dismissal in at least one case, about the cause being excessive overtime claims, all facts she conveniently no longer seems to remember. Further, none of the procedural mitigating factors are present here.

121It is for that reason that I have concluded that while there is substantial factual similarity between this case and R. v. Knight, as I have previously explained, the absence of those mitigating factors in this case, and the absence of remorse or acceptance of responsibility, calls for a significantly higher sentence in this case than the four year sentence imposed in Knight. That said, this is not a case that calls for a sentence at the eight-year plus level, that Crown counsel advocates for, mistakenly in my view. A sentence of that duration would be crushing. I find would not give due weight to the principles of proportionality and totality.

Prohibition Order

122Crown counsel also asks the Court to issue a Prohibition Order against Ms. Motayne for 20 years under s. 380.2 of the Code. That provision, applicable in circumstances of significant frauds like this one, reads in part as follows:

380.2(1) Where an offender is convicted ... of an offence referred to in subsection 380(1) [fraud] the court that sentences ... the offender, in addition to any other punishment that may be imposed for that offence ... may make, subject to the conditions or exemptions that the court directs, an order 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.

123Section 380.2(2) provides that the order under s. 380.2(1) may be for "any period that the court considers appropriate". The order is discretionary and the sentencing judge may impose "conditions or exemptions".

124In R. v. Hooyer24, the Court of Appeal confirmed that an Order under s.380.2 constitutes “further punishment” because of the deprivation it may and typically will cause to a person's liberty interests. The accused had known the victim and his wife and assisted them since he was a boy. Eventually he became the victim's attorney for property and the residual beneficiary under the victim's will after his wife died. But then after the victim moved into long-term care, the accused moved into the victim's home rent-free and diverted $378,552.67 to his own use, neglecting the victim's monthly bills and submitting $2,224.89 in invoices to Veterans Affairs for long-term care payment reimbursements that he applied for own benefit. By the time he surrendered his power of attorney, the victim had only $18 left in the bank and owed $16,000 to the long-term care facility and $13,000 in property taxes. He was charged and convicted of theft and fraud.

125The trial judge sentenced him the offender to two years less day for theft, six months concurrent for fraud, and ordered him to pay restitution of $378,552.67 to the victim's estate and $2,224.89 to Veterans Affairs. More importantly in this context, as part of his punishment for the fraud conviction, the trial judge granted the Crown's unopposed request for a lifetime prohibition under s. 380.2(1) of Code. That prohibition would prevent the offender from being employed or volunteering where he might be required to take any money, or its equivalent, from a customer on behalf of his employer.

126The appeal from sentence was allowed in part, and the employment prohibition ordered was struck. Writing for the court, Doherty J.A., observed that s.380.2(1) was

24 2016 ONCA 44.

introduced after the offender had committed the fraud and that it served to increase his punishment by adding a new sanction that was previously unavailable.

127There is no concern here about the retrospective application of the provision that informed the courts decision in that case, but the Court of Appeal in Hooyer noted that the s.380.2(1) sanction imposed on that accused excluded him indefinitely from participating in a wide variety of otherwise lawful activities, including many forms of employment. Further, it could potentially have significant negative effect on his ability to work and fully participate in the community, much less, as in this case, decrease the economic possibility of restitution by limiting the available lines of work in which Ms. Motayne could be hired.

128I intend to issue a Prohibition order here, but I believe it should be considerably restricted and have conditions imposed. There are two principal considerations that inform that conclusion.

129Ms. Motayne has lost her licence and her professional designation. She has been effectively defrocked as an accountant. That is a very significant penalty in my view, totally appropriate and required, but one that addresses the principal concerns that would be present here about future employment and that would otherwise call for this order. She may be able to earn income as a simple bookkeeper, or by preparing tax returns, but she will never be able to be employed in the broader scope of jobs that her she would have been if still a licenced accountant.

130However, an order that she not be able to handle others money in the course of employment for twenty years is inappropriate in my view. It would deprive her of numerous meaningful work choices she will need if there is to be any realistic hope of restitution, in whole or in part. It would deny her the simple ability to work as a waitress and take a toonie from a customer to pay for a cup of coffee. That, in my view, would be excessive punishment and, frankly, simply churlish.

131I invited Crown and defence counsel to confer and seek to agree on terms for this order that they agree would be suitable, given the crime and the loss of her professional designation, and given her need to be able to be employed once she has completed her sentence. I have received no response from either of them.

132My answer to that lacuna is simple at present. I presently find that the prohibition order will be limited to prevent Ms. Motayne from acting as an accountant, or in any other manner now precluded to her by the decision of the Institute of Chartered Professional Accountants of Canada, to revoke her certification and licence. It will also prohibit her from seeking, obtaining or continuing any employment that involves having authority over the real property, money or valuable security of another person having a value in excess of $1,000, without the specific consent in writing of her employer, or

becoming or being a volunteer in any capacity, that involves having any authority over the real property, money or valuable security of another person.

133I wish to emphasize that it is not my intent to prevent Ms. Motayne from being able to obtain remunerative employment. To the contrary. She will need to be in remunerative employment to make restitution in accordance with the order I will make today. Accordingly, if either counsel wishes to address the terms and conditions of this order on the basis that it fails to achieve my purpose, they are to advise me today, and provide written submissions on the proposed terms and conditions by October 31, 2019. I will delay making this order until that time, unless my proposed limitations are agreeable to counsel, in which case, the order can issue today.

Is a Restitution Order appropriate?

134NVT, as the institutional victim, and a number of the individual victims emphasized in their statements how important it is to them that an order of restitution be made in this case. In its 2015 decision in R. v. Wa25, Gillese J.A. addresses the circumstances where it is appropriate for the court to impose a restitution order, and summarizes the law derived from the leading decision in R. v. Castro.26

One of the primary purposes of restitution orders is to deprive criminals of the fruits of their crime. A restitution order is part of the total sentence imposed and is entitled to deference. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court shall intervene only if the sentence is demonstrably unfit. See R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 91.

When determining whether to impose a restitution order, the sentencing judge must consider the offender's ability to pay. However, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be imposed even if there does not appear to be any likelihood of repayment: R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 28. As the sentencing judge found, the fraud in this case was a clear breach of trust, which was particularly odious given the charitable nature of the work performed by the victim.

Moreover, when assessing ability to pay a restitution order, the court may consider what disclosure has been made respecting where the money is or has gone. In fraud cases, bald assertions by offenders that they have no ability to make restitution are entitled to little weight when the offender has not explained where all of the stolen assets have gone: Castro, at para. 34. This consideration applies in the present case. Despite being an accountant, the appellant has been

25 2015 ONCA 117, at paras. 11-14.

26 2010 ONCA 718.

vague about what happened to over $1 million of the stolen money, and he has failed to provide detailed records or an explanation of the money's use.

Further, I attach little weight to the appellant's claim that he did not appreciate that the Orders would result in him being excluded from the accounting field. The sentencing judge expressly referred to the appellant's reduced career prospects as a mitigating factor. That factor was also expressly referred to by defence counsel and agreed to by the Crown at the time of sentencing. Furthermore, and in any event, the appellant has been able to obtain employment in the accounting field since his release from prison.

135The language used by Gillese J.A. in these paragraphs is entirely apropos of the circumstances here. The factors enumerated in R. v. Wa and in R. v. Devgan27, provide a strong indication that this is a case where a restitution order is called for. NVT brought a civil action and has in fact received summary judgment against the offender. They have only received $109,000 of the $904,784.80 stolen. There remains another $81,000 as NVT’s share of the proceeds from the sale of Ms. Motayne’s home presently frozen in the accounts of the Trustee in Bankruptcy. Crown counsel urged the court to make such an order. The victims urge the court to make the order. Defence counsel said very little on the subject, other than that if Ms. Motayne’s potential future sources of income are excessively limited by the s.380.2 order sought by the Crown, then there will be no realistic prospect of her earning enough to make restitution, and that a restitution order will unfairly penalize her sons for their mother’s crime.

136I do not agree that a properly crafted order under s. 380.2, with specific inclusions and exclusions, will leave Ms. Motayne with inadequate means to earn a reasonable income. Further, the most important factors in Devgan that support an order being made are all present.

137At pages 168-169, Labrosse J.A. set out a non-exhaustive list of factors relevant to the proper exercise of discretion with respect to the making of a restitution order under the predecessor section of the Code. While an order for compensation should always be made with restraint and caution, compensation is essential to the sentencing process because (i) it emphasizes the sanction imposed upon the offender; and (ii) it makes the accused responsible for making restitution to the victim.

138While a restitution order should not be used as a substitute for civil proceedings, in this case all civil remedies have been exhausted. There is no serious contest on legal or factual issues, which could or should cause denial of an order. There is no prospect here of double recovery. Even single recovery may remain a dream. Nevertheless, a restitution

27 1999 CanLII 2412 (ON CA), [1999], 44 O.R. (3d) 161 (C.A.).

order is appropriate in a case like this where the related civil judgment obtained by NVT has been rendered unenforceable as a result of Ms. Motayne’s bankruptcy, and yet she has provided no information on where the monies went, or whether there are any monies that remain accessible to compensate NVT for the loss she caused.

139While a consideration of ability to pay should take into account not only the offender's present income but also future earning ability, as well as any assets she controls, Weiler J.A. emphasized, in Castro28 at para. 35, that in breach of trust cases like this one, a primary consideration must be the effect on the victim, with rehabilitation being a very secondary consideration. This perspective supports her earlier conclusion at para. 28:

In cases involving breach of trust, the paramount consideration is the claims of the victims. Ability to pay is not the predominant factor. Indeed, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, it can underline the balance of the sentence, a restitution order may be made even where there does not appear to be any likelihood of repayment.

140There are only two of the Devgan factors that suggest a restitution order should not be made here. One is Factor 2(iv), since it appears unlikely to me that the making of this order will actually provide a convenient, rapid and inexpensive means of recovery for the victims, and the other is Factor 3(iii), since while she has said little, her bankruptcy suggests that Ms. Motayne is a person without means.

141However, I cannot ignore that this case involves a particularly egregious breach of trust. As such, the ability to pay must be a secondary consideration especially where, like here, neither the Court nor NVT have been provided with any meaningful information about what happened to the money Ms. Motayne took from these victims. This was a crime motivated by greed. These factors make it appropriate and call for a restitution order. The restitution order against this offender shall be in the full amount of the victim's losses, including the additional $300,000 of loss in costs further incurred by NVT. This totals $1,095,668.71.

Fine in Lieu of Forfeiture

142The Crown also requests a fine in lieu of forfeiture in the amount of $795,668.71 pursuant to s. 462.37(3) of the Criminal Code. Section462.37 provides for the forfeiture of the proceeds of crime where an offender is convicted of a designated offence. Fraud over $5,000 is a designated offence. If the court is satisfied a forfeiture order should be made in respect of any property, but the property cannot be made subject to an order, the court may order the offender to pay a fine in an amount equal to the value of the property.

28 Supra, note 24.

The amount of the fine sought equals the $904,000 stolen directly from NVT less the recovered amount of $109,000.

143Section 462.37(3) sets out the situations in which the court may order the offender to pay a fine. These include where the property cannot, on the exercise of due diligence, be located; where the property has been transferred to a third party or is located outside of Canada; or where the property has been commingled with other property that cannot be divided without difficulty. The defence does not deny that the preconditions that need to be met for the making of an order for a fine in lieu of forfeiture are met in this case, or that there is a basis for the order to go.

144Therefore, I will impose a fine on Ms. Motayne in the amount of $795,668.71. She must be given a reasonable time to pay that fine. In my view, she should have six years from the date of her release from prison to pay the fine.

145 Section 462.37(4) of the Criminal Code sets out the minimum terms of imprisonment that must be imposed in default in payment of the fine depending on the amount of the fine. In this case the fine does not exceed one million dollars, so the minimum term of imprisonment is three years. In default of payment Ms. Motayne will be sentenced to three years in prison, consecutive to the sentence that I will impose today.

146I note that imposing both a restitution order and a fine in lieu of forfeiture could amount to "double recovery". The legislation prioritizes the reimbursement of victims over collecting on fines destined for general revenues, pursuant to s. 14.6 of the Crown Attorneys Act, R.S.O. 1990, c. C-49, so any amount collected on the fine will be credited to the restitution order. In Khatchatourov, A.J. O'Marra J. ordered both a restitution order and a fine in lieu of forfeiture against two offenders who conducted mortgage fraud. He found it appropriate in that case to make an order that payment of the fine in lieu of forfeiture is credited to the amount of restitution ordered.29 I do the same here.

147If Ms. Motayne pays off the fine in lieu of forfeiture, she will still need to pay the difference between the fine and the restitution amount. If there is a default in payment, the ensuing prison sentence may decrease the fine, but it does not decrease the restitution amount.30

29 R. v. Khatchatourov, 2012 ONSC 3511, at para. 122.

30 Khatchatourov, supra note 16, at para. 57.

Summary and Disposition

148Ms. Motayne, you have committed a most egregious offence. In committing this fraud against a charity that trusted you as its Director of Finance, a charity that is dedicated to helping to improve the lives of those who are less fortunate than you or any of us are, physically disabled and financially dependent persons, you have violated every ethical and professional obligation that you pledged to uphold. You intentionally, with planning and deliberation, breached your professional obligations. More importantly you ignored the obligations you had to the disabled persons who relied on you in committing this cold, duplicitous, greed driven offence.

149You need to know and understand the depth of our community’s repugnance at your conduct, and your failure to accept responsibility for a crime you so clearly committed, or to express any remorse or understanding for the damage you have caused. I have presided over many fraud trials, but never one that displays such cold criminal conduct. It offends me to the core. It does the same to this community.

150For unexplained but presumably obvious reasons of greed, you smoothly and carefully stole a million dollars. You did that through a callous and calculated payroll robbery plan that you knew would be immune to detection and that you also knew would deprive some of the most vulnerable and needy of our fellow citizens of the monies they needed for a subsistence day to day level of survival with the disability weights they carry. You pretended to care, deceived your colleagues and fellow employees into thinking you cared, and you violated your ethical, moral and professional responsibilities to the organization that trusted you, and that seeks to support and protect these vulnerable persons.

151Even taking account of the exceptionally aggravating facts that are present in this case, as noted, I cannot accede to the sentence of eight to ten years of imprisonment requested by the Crown. That request is excessive in my view, having regard to the comparable jurisprudence. I remain of the view that the comparable case, at least factually, is that in R. v. Knight, as I have explained. The difference is that you, Ms. Motayne, cannot be rewarded with a mere four-year sentence as was the offender in Knight, because all of the mitigating circumstances in that case are entirely absent in this case.

152The reasons are simple and obvious. You are not entitled to any of the beneficial mitigating credit given to the offender in Knight because you did not plead guilty to the offence that the jury found, on overwhelming cogent and persuasive evidence, that you so obviously committed.

153You get no mitigating credit for having expressed even the slightest sense of remorse, because you have made no expression of understanding or remorse.

154You get no credit for accepting responsibility for your egregious crime, because you have not accepted responsibility for what you have done. Instead you have claimed that your continuing depression leaves you unable to remember what you have done. I do not accept that anymore than Dr. Toguri did. That claimed lapse of memory also, conveniently, allegedly leaves you unable to either explain where the monies went, or causing them to be returned in satisfaction of the restitution order I will impose.

155For all of these reasons, and the absence of mitigating factors of significance, I find the appropriate and fit sentence for the crime you committed over a period of years, would otherwise be a term of imprisonment of seven years. While the facts are very similar to those in Knight, the difference of duration must follow for the reasons I have given.

156However, demonstrating the extent of Her Majesty’s mercy that I feel obliged to extend in the circumstances of this case, I have reduced that total sentence in recognition that (i) your sons should not suffer any more than required for your crime, and (ii) that you do suffer from a chronic condition of depression, even if unrelated to your crime. I also reduce the sentence marginally in order to provide greater opportunity for you to either remember where the proceeds of your crime went, and to advise the police of same within six months and to assist in trying to restore those monies to NVT, or to start a bit earlier to earn an income and make restitution, even if your job prospects are going to be limited.

157Ms. Motayne, please stand up.

158For all of these reasons, I have determined that a penitentiary sentence of six years and six months imprisonment is the fit sentence in the circumstances of this case. Reduced to take account of your pre-sentence custody credit to today’s date of 189 days on the basis of 1.5:1 credit prescribed in R. v. Summers31, I sentence you to serve a balance of five years, eleven months and twenty-six days in the penitentiary.

159I have also made a restitution order against you pursuant to s. 738(1)(a) of the

Criminal Code. That order reads as follows:

You are hereby ordered to pay New Visions Toronto the amount of $1,095,668.71. You will have six years from the date of your release from prison to pay the fine.

31 2014 SCC 26.

160Further, subject to further written submissions by counsel, pursuant to s. 380.2(1) of the Code, I order that in future, you shall be subject to the following restrictions relative to future employment:

You shall not act as an accountant, or in any other manner now precluded to you by the decision of the Institute of Chartered Professional Accountants of Canada, to revoke your certification and licence. You are also prohibited from seeking, obtaining or continuing any employment that involves having authority over the real property, money or valuable security of another person having a value in excess of $1,000, without the specific consent in writing of your employer, or from becoming or being a volunteer in any capacity, that involves having any authority over the real property, money or valuable security of another person.

161Finally, I also impose a fine in lieu of forfeiture in the amount of $795,668.71 pursuant to s. 462.37(3) of the Criminal Code to be paid within six years of your release. Should you default on paying that fine you will be sentenced to a further three years in prison consecutive to the sentence I have just imposed.

Other Ancillary Orders:

Other Ancillary Orders

162Crown counsel also requests a DNA order under subsection 487.051(3), as fraud over $5,000 is as a designated secondary offence. I have determined that the DNA order requested by the Crown is unnecessary in this case.

163In reaching that conclusion, I have considered the factors as required under subsection 487.051(3). In my view, Ms. Motayne's absence of a criminal record and frankly, at her age, the very low likelihood of her committing further offences, weighs against making the order. To the contrary, the nature of the offence and the circumstances surrounding its commission would support the issuance of the order. In the end, I am not satisfied that the order is required, balancing these factors and considering the impact such an order would have on Ms. Motayne's privacy and security of the person.

Michael G. Quigley J.

Released: October 23, 2019

COURT FILE NO.: CR-17-70000470-0000

DATE: 20191023

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and –

MARCIA MOTAYNE

REASONS FOR SENTENCE

Michael G. Quigley J.

Released: October 23, 2019

Overview

Position of the Crown