Court File and Parties

COURT FILE NO.: 17-1917 DATE: 2020/05/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Derek Robertson

Counsel: Juliana Martel, for the Crown Richard Addelman, for the Accused

Oral Judgment Given: January 21, 2020

Reasons for Sentence

A.E. LONDON-WEINSTEIN J.

The Offences:

[1] Mr. Derek Robertson was found guilty after trial of fraud in relation to two complainants, Sharyn and John Demers, and Arthur and Leslie Langford. Both couples had signed contracts to have Mr. Robertson complete drawings for the construction of new homes. The drawings were not completed in a timely fashion. Payments paid to Mr. Robertson on the understanding that he would use the funds to pay third parties, were not paid to those third parties. I found Mr. Robertson guilty of fraud after trial. For a full recitation of the facts please see my oral reasons for judgment in this matter in relation to the fraud counts and the convictions related to counts 2 and 3.

The Offender:

[2] Mr. Robertson is a first time offender at age 56. He is an alcoholic with two decades of sobriety. He has a history of mental health issues.

[3] Mr. Robertson has received treatment for Post Traumatic Stress Disorder. He has a long history of childhood abuse which was physical, sexual, verbal and emotional in nature, according to a letter provided to me by Dr. Ruby L. de Guzman, who treated Mr. Robertson for the first time in 2004, and again beginning in March of 2014. Mr. Robertson was a resident of the Robert Smart Center for disturbed children several times in his childhood and teenage years, according to Dr. de Guzman. Mr. Robertson is also an alcoholic and has been living a sober life for 20 years.

[4] Around the time of the index offences, Dr. de Guzman notes that Mr. Robertson had been in countless relationships, bankruptcy, charged with fraud, almost lost his sobriety, became depressed, entertained suicidal thoughts like jumping off a building. He gained a tremendous amount of weight and sought psychiatric help. His family background is strong for psychiatric illness. His father has a history of alcoholism, as well as his grandparents, uncles, aunts, and siblings. Both of his parents have psychiatric conditions, as well as his siblings, uncles and grandparents. Mr. Robertson has a history of depression and Dr. de Guzman notes that it took several years for him to attain remission from his depression the last time he was treated.

[5] Dr. de Guzman notes that Mr. Robertson was living in a rooming house, was deeply depressed and appeared to him to have retrogressed to several years back when he first presented for therapy. He was prescribed Trazadone 150 mg for his depression, and insomnia. He was also prescribed 100 mg of Chlorpromazine 100 mg at bedtime for anxiety.

[6] Mr. Robertson, before the emergence of COVID-19, was doing volunteer work. He teaches judo and has received assistance from the Elizabeth Fry Society and attended the Somerset Health Centre. He has been sober for some 20 years, and assists others in recovery. These are all factors which speak to his character.

[7] At one time, Mr. Robertson appeared to have been functioning in his business. He did not testify in this trial. My impression from the material put before me at sentencing, and from the evidence at trial, was that he was someone who was in over his head and lost the ability to manage his affairs. He has a significant history of depressive episodes.

Victim Impact:

[8] Mr. Demers read his victim impact statement in court. He described anxiety, and emotional loss related to the delay of the construction of his home. Even after seven years he finds that he experiences emotional episodes which now require him to take medication. Mr. Demers indicated that he had to reduce the sale price of the house, and also had to pay for the permits. Some of these costs were related to the delay in building the home and its reduced value. He also had to pay a lawyer for a civil suit, and had associated small claims court costs. He had to delay his retirement. He has suffered a loss of trust in people as a result of this experience, and his wife blames herself for the loss. He claimed losses in the neighbourhood of $50,000, including money spent in a civil action in an attempt to recover from Mr. Robertson. This figure included the roughly $13,804.00 which he paid Mr. Robertson for building permit fees, development fees, septic fees and zoning fees. He also paid $10,590.55 to Mr. Robertson for the plans. The money was not used for the purpose for which it was intended, and Mr. Demers had to repay those fees to the proper authorities himself.

[9] Mr. Langford is a retired farmer and truck mechanic. He paid Mr. Robertson a deposit of $3,570.17. He also paid $12,704.00 to Mr. Robertson in trust. The money was to be spent on fees to the City of Ottawa on his behalf. The money was not paid for fees, and Mr. Langford had to pay the fees to the City himself. Mr. Robertson did not use the money for the purpose for which it was intended.

The Positions of the Parties:

[10] On behalf of the Crown, Ms. Martel submitted that the appropriate sentence for all offences is a term of imprisonment of between six to nine months. On behalf of the defendant, Mr. Addelman submitted that in light of all of the relevant circumstances, the appropriate sentence is a suspended sentence with a period of probation.

Discussion:

[11] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Criminal Code directs judges to craft sentences which achieve these goals by imposing just sanctions which have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In determining the sanction required in the particular circumstances of a case, a judge must take into consideration “any aggravating or mitigating circumstances relating to the offence or the offender”. Further a judge must bear in mind that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”, and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders….See ss 718, 718.1 and 718.2 of the Criminal Code.

[12] The objectives of sentencing often pull in different directions. The predominating objectives in this case, involving an unsophisticated fraud upon older victims in amounts which are over $5,000, is general and specific deterrence. However, Mr. Robertson is a first time offender with mental health issues. Some consideration must be given to the principle of restraint, and rehabilitation.

[13] In arriving at the appropriate sanction required in the circumstances of a given case, a judge must take into consideration “any aggravating or mitigating circumstances relating to the offence or the offender”. The aggravating circumstances in this case include the following:

(1) There were numerous occasions where the victims in this case attempted to recover the funds which had been paid to Mr. Robertson. Mr. Robertson continued to deny that he had misspent the money. Mr. Demers had to call subcontractors himself in order to avoid having a lien put on his property. (2) The victims in this case were at an age in life where they should have been entitled to enjoy the fruits of a life of labour. They were nearing retirement. They were not people of wealth and loss of the sums involved had a heavy impact on them financially and emotionally. (3) Mr. Demers had to delay his retirement as a result of this incident. Construction of his home was delayed. The construction of Mr. Langford’s home was also delayed. Additional costs were incurred as a result of these delays.

[14] There were also circumstances to be taken into consideration in mitigation.

(1) Mr. Robertson has no criminal record. (2) Mr. Robertson appeared to me to be over his head in terms of his commitment to finish the work he had promised. This fraud was not a sophisticated fraud, nor one which was planned in advance. My impression drawn from the evidence was that he over-promised and under-delivered, but that he continued to make efforts to try and provide plans which would pass muster. Given the amount of time he expended re-doubling his efforts in an attempt to get the plans up to standard, he did not receive a windfall, if one accounts for the cost of his time. While this is not a mitigating factor per se, it does distinguish this case from cases where a fraud was pre-planned and sophisticated in its execution. (3) Mr. Robertson has a significant history of mental health issues, including pervasive depression. In R v. McLellan, 2012 ONCA 717, the Court appeared to approve of the trial judge acknowledging that a mood disorder and mental health challenges may have impaired the judgment of the accused.

[15] In R. v. Prioriello, 2012 ONCA 63, the Court held that in order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct. R. v. Robinson, [1974] O.J. No. 545 (Ont. C.A.)

[16] In R. v. Itil, 2019 ONSC 6532, Justice MacDonnell was dealing with an offender charged with a number of robberies, where the offender was homeless, struggling with substance addiction and dealing with mental illness.

[17] At paragraph 25 of that decision, he wrote, “As it is in many cases, the court in this case is faced with the vexing question of the extent to which he defendant’s mental illness should be regarded as a mitigating circumstance. He went on to cite one of his own decisions. In R. v. Haly, 2012 ONSC 2302 (Ont. S.C.J., ) he wrote at paragraph 34 of his reasons:

No doubt mental illness falling short of a defence under s. 16 of the Criminal Code may lessen the moral blameworthiness of an offender and in that manner it may mitigate sentence, but whether it will do so will depend on all of the circumstances…..Even where a link is established, if the offender’s mental illness makes him or her a continuing danger “[the illness] is not necessarily a reason to reduce what would otherwise be an appropriate sentence.”: R v. Corpus, [2000] O.J. No. 549 (C.A.) at paragraph 8.

[18] In the case before me, the letters submitted by Dr. de Guzman suggest that Mr. Robertson’s mental health issues may have been impairing his judgment at the time of the index offences. I find that his mental health issues are a mitigating circumstance. It is also notable that Mr. Robertson did not relapse into alcohol abuse during this time.

[19] Section 718 (f) of the Criminal Code states that a valid sentencing objective is to “promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”

[20] Mr. Robertson has indicated a willingness to make financial amends to Mr. Langford and Mr. Demers. However, he is a person of very limited means. He is not employed, he has ongoing mental health issues and we are also about to embark on a major recession, if not a complete economic depression due to the COVID-19 pandemic. As a result, Mr. Robertson’s prospects for employment to repay this debt, do not look very optimistic.

Restitution Order:

[21] 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. 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. Wa, 2015 ONCA 117 citing R v. Castro, 2010 ONCA 718. 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. Wa, supra, para 13.

[22] The ability and willingness to make restitution is an important sentencing factor in cases of fraud. (See R v. Smolyar, [2003] O.J. No. 3542). In this case, Mr. Robertson has, through counsel, indicated a willingness to make restitution. I also heard evidence in this trial that he had promised to make repayment to Mr. Langford.

[23] The Crown has suggested that Mr. Robertson pay a nominal amount each month to promote a sense of responsibility in him for his actions, and in a concession to the fact that he will not be able to repay his debt. In my view, this was a very reasonable position for the crown to assume.

[24] However, this creates logistical problems in terms of tracking these funds and having them delivered to the victims. I would not wish to impose this burden on the officer in charge, who organized this case and attended until its completion. In my view, the benefit of having Mr. Robertson pay a nominal amount is outweighed by the logistical cost of collecting a nominal amount each month for the term of probation.

[25] A restitution order should not be made mechanically. Care must be taken not to simply add a restitution order to a sentence of imprisonment which in itself, is a fit punishment for the crime. A restitution order constitutes part of punishment and must be included in considering the totality of the punishment imposed. The means of the offender and the impact of a restitution order upon the chances of rehabilitation must be considered. The amount of the order need not be for the full amount of the loss. R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.); R. v. Siemens (1999), 136 C.C.C. (3d) 353 (Man C.A.).

[26] I have considered Mr. Robertson’s means, which are modest at the moment. His immediate prospects in the future will be hampered by the fact that he now has a criminal record for fraud. In addition, the economy is expected to nosedive. In my view, it would not be appropriate in light of Mr. Robertson’s means, to impose a restitution order for the full amount owing to Mr. Langford and Mr. Demers, given Mr. Robertson’s economic prospects. However, Mr. Robertson may be able to gain employment at some point after the economic climate has improved. He is willing to repay.

[27] Mr. Demers claimed costs in the amount of $50,000, including his civil costs. This amount exceeds what Mr. Robertson would be responsible for as a result of being found guilty of fraud in a criminal trial. In my view, given that both Mr. Demers and Mr. Langford received their house plans, albeit they were late and much revised, the appropriate figures for recovery would be a portion of the funds which were paid for fees and not used for fees.

[28] Both Mr. Demers and Mr. Langford paid in excess of $10,000 each in development fees. Mr. Robertson did not use this money in the manner promised. In my view, a restitution order under s. 738 of the Criminal Code for a portion of this money is appropriate based on Mr. Robertson’s expressed willingness to pay and on my view that he will eventually be again gainfully employed.

[29] I order that Mr. Robertson pay $5,000 to Mr. Demers by way of a restitution order under s. 738 of the Criminal Code. I order that Mr. Robertson pay $5,000 to Mr. Langford by way of a restitution order under s. 738 of the Criminal Code.

[30] I appreciate that this is a substantial amount to Mr. Robertson, but it is not an amount that will crush him or render him unable to continue to maintain his sobriety or to continue rehabilitative efforts.

[31] The restitution order is a part of the punishment imposed on Mr. Robertson. I do not regard a period of custody as necessary for specific deterrence in the case of Mr. Robertson, who is a man in his mid fifties without, until now, a criminal record. The principle of restraint mandates against jail in this case.

[32] Mr. Robertson also has mental health issues which it is apparent to me, clouded his judgment and contributed to the poor decisions he made when he committed these acts of fraud against two separate families, who are senior citizens who trusted him.

[33] Mr.Robertson indicated that he was terrified of going to jail. It is my belief that having experienced this terror for some time now, that it serves as a deterrent against future criminality.

[34] Proportionality is the cardinal principle that must guide sentencing judges in considering the fitness of a sentence. The severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. R. v. Lacasse, 2015 SCC 64.

[35] In suspending the passage of sentence, and imposing a restitution order for only a portion of what is owed, I am imposing a sentence which is below the range for this type of offence. I would describe these offences as unsophisticated frauds involving two victims who were seniors in amounts under $40,000.

[36] I have concluded that this sentence is just and appropriate on the particular facts of this case. I found that Mr. Robertson’s history and his mental health issues were related to his poor judgment in committing these offences. The nature of the frauds themselves were reflective of the chaotic and disorganized way Mr. Robertson was running his business, as opposed to a sophisticated plan to take advantage of people. For example, Mr. Robertson frequently had to re-do the plans in order to have them accepted. This spoke to me of incompetence as opposed to fraud. However, in taking the funds in trust for fees and then not following through by paying those fees to third parties, I did find that Mr. Robertson was guilty of fraud.

[37] I note that even at the end of things however, he was still attempting to assist Mr. Langford, long after his involvement with the development of the Langford house had ended by attending the house to assist a contractor. To me this spoke of someone who was not a sophisticated fraudster, but rather someone who engaged in dishonesty as a result of getting in over their head.

[38] I suspend the passage of sentence and impose a period of probation of 24 months. Mr. Robertson shall continue to see Dr. de Guzman for mental health support. Mr. Robertson shall report once to probation when it is safe to do so in light of the COVID-19 pandemic.

A.E. London-Weinstein J.

Released: May 22, 2020

COURT FILE NO.: 17-1917 DATE: 2020/05/22 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen – and – Derek Robertson REASONS FOR Sentence A.E. London-Weinstein J. Released: May 22, 2020