Court File and Parties

COURT FILE NO.: CR-17-70000470-0000 DATE: 20201022 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and - MARCIA MOTAYNE

Counsel: Andrew Max, for the Crown Kevin Kaczmara and Solange Davis-Ramlochan, for the Defendant

HEARD: In Chambers

Supplemental Reasons Re Prohibition Order

Michael G. Quigley J.

[1] On October 23, 2019, I imposed sentence upon this offender, Ms. Marcia Motayne. On June 19, 2019, the jury convicted her of one count of fraud over $5,000 against New Visions Toronto, a not-for-profit agency. The agency provides care and housing to disabled individuals. Ms. Motayne defrauded them of about $1 million over four years.

[2] I sentenced Ms. Motayne to six years and six months imprisonment. Reduced to take account of her pre-sentence custody credit, I sentenced her to serve a balance of five years, eleven months and twenty-six days in the penitentiary. I also made a restitution order against her to pay New Visions Toronto the amount of $795,668.71, pursuant to s. 738(1)(a) of the Criminal Code. She was given six years from the date of her release from prison to pay the fine. I also imposed a fine in lieu of forfeiture and ancillary orders.

[3] More importantly in the context of this ruling, subject to further written submissions by counsel, I ordered that in future, Ms. Motayne would be subject to certain restrictions relative to future employment, pursuant to s. 380.2(1) of the Criminal 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.

[4] Section 380.2(2) of the Criminal Code 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". I issued a Prohibition Order in this case, but concluded it should be considerably restricted and have conditions imposed. There were two principal considerations that informed that conclusion.

[5] Ms. 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 she would have been if still a licenced accountant.

[6] However, an order that she be totally prohibited from handling others' money in the course of employment for twenty years is inappropriate and excessive 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, mean spirited.

[7] As a result, the order I imposed as originally drafted, read as follows:

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.

[8] Defence counsel made written submissions requesting that this prohibition order be made more permissive. He expressed the view that, as written, it would effectively prohibit Ms. Motayne from having any remunerative employment. This suggestion was founded on the supposition that it would defeat Ms. Motayne's efforts to seek employment if she had to disclose her prior conviction to a prospective employer, in order to obtain permission to work with the employer's money. He suggested she would be unable to work as a waitress in a restaurant and serve a cup of coffee because she would not be able to collect the amount of the customer's bill. He also suggested it would curtail Ms. Motayne from engaging in volunteer work with her church, or in other volunteer circumstances, because as he put it, she would not even be permitted to pass the collection plate at Sunday services.

[9] I have considered this request and the Crown's response for some time. The Crown resists this request. Before specifically addressing the requests submitted by the defence, I would adopt the two overarching comments made by the Crown.

[10] First, there are many types of employment and volunteering that do not involve control over money. Seemingly, many, if not most, members of the public provide for themselves and their families through meaningful employment that does not involve such control. These include factory workers, tradespersons, instructors, therapists, cooks, social workers, drivers, religious leaders, and administrative assistants. They do their work. They are paid, usually today by direct deposit, net of taxes withheld at source. None of these kinds of employment require any control over anyone else's money whatsoever. Similarly, there are many types of volunteer roles - at church and otherwise - that may be highly fulfilling and that do not involve authority over money.

[11] Thus, the question I face is whether it is in the public interest for Ms. Motayne to be permitted, in addition to those types of employment and volunteer work, to occupy roles, which may provide the opportunity to defraud people, given that Ms. Motayne has shown that she has no qualms about committing fraud where the opportunity exists.

[12] Second, I would observe that s. 380.2(4) of the Criminal Code does indeed permit defence counsel to apply to vary the prohibition order in the future if the variation is desirable because of changed circumstances. If, after serving her sentence, Ms. Motayne comes to be presented with an excellent employment opportunity that would otherwise be prohibited, she may apply to the court for an exception to allow her to seek such employment. The court would consider that request at that time in light of the specific factual circumstance before it, rather than now and in the abstract.

[13] The first exception the defence seeks to the application of my order relates to volunteering. I accept that Ms. Motayne can seek fulfilment and reintegration through volunteering opportunities that generally do not involve control over others' money, and that there is no benefit to the public in providing Ms. Motayne with opportunities to handle funds from which she may steal.

[14] Crown counsel says she should be precluded from passing a collection plate. He asserts that the bank accounts of New Visions Toronto were similar to a collection plate, insofar as they contained money donated for the benefit of others, and yet Ms. Motayne stole from them. He asserts that there is a strong public interest in protecting charitable institutions from Ms. Motayne.

[15] I agree. I am unable to see how the prohibition order, as presently worded, would preclude or curtail Ms. Motayne from engaging in meaningful volunteer work with her church, or others. Defence counsel says she would not even be permitted to pass the collection plate at Sunday services. Perhaps as presently worded, that is correct, but the intendment of the order is not that draconian or mean-spirited.

[16] Given the typically small amounts involved, I see no reason why Ms. Motayne could not pass the collection plate at a Sunday service, given the public nature of the activity. Neither would I be concerned if Ms. Motayne volunteered to be a custodian or maintenance helper at her church, or otherwise have some control over property, as long as she has no control over any significant sums of money.

[17] To address both of those concerns, I will amend the last part of the order to permit her to have possession of monies of other persons within a voluntariness context, not exceeding $500, but removing the prohibition against control over real property or other non-liquid assets.

[18] With respect to employment, the Crown opposes the defence request that Ms. Motayne be permitted to handle sums of money exceeding $1,000 without the consent of her employer. The corollary is that under this order, Ms. Motayne may handle sums of money less than $1,000 without seeking the consent of an employer.

[19] Defence counsel, as I noted, argues this prohibition is akin to being required to sew Nathaniel Hawthorne's infamous "Scarlet Letter" to one's shirtfront. I disagree. As the Crown observes, what the defence refers to in its submissions as a "Scarlet Letter" is actually more properly considered to be "informed consent". In other words, if Ms. Motayne is to have control of monies of an employer in excess of $1,000, in my view, the employer should know her history and be required to consent. However, this carve out would not prevent Ms. Motayne from working in many if not most retail or service environments, because she is being granted the ability to control monies up to, but not in excess of $1,000. Nevertheless, I agree that, as in the case of volunteer work, little purpose is served by the prohibition against having any kind of supervisory control over real property.

[20] As such, the prohibition order will be amended to read as follows:

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 remunerative or volunteer employment that involves having more than supervisory authority over any real property or valuable security of another person. You are also prohibited from seeking, obtaining or continuing any remunerative or volunteer employment that involves having authority or control over money or credit received by such employer in excess of $1,000, without the specific consent in writing of your employer or the volunteer organization.

[21] I would ask counsel to draw up the order itself and provide it to me for my fiat as soon as possible. If there are unintended consequences to any aspect of this order, against the background of these Reasons explaining my purposes in styling the prohibition as I have, I would ask counsel to consult together and then contact me to consider any such issues.

[22] As I stated in my original Reasons for Sentence, I 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 sentence I imposed. That is why I regard these amendments as appropriate.

Michael G. Quigley J.

Released: January 22, 2020

Court File and Parties (Repeated Footer)

COURT FILE NO.: CR-17-70000470-0000 DATE: 20200122 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and - MARCIA MOTAYNE

SUPPLEMENTAL REASONS RE PROHIBITION ORDER Michael G. Quigley J.

Released: January 22, 2020