COURT FILE NO.: CR-19-0080-00
DATE: 2020-11-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Keen, for the Crown
- and -
MORRIS WAPOOSE
K. Matthews, for the Accused
Accused
HEARD: September 14, 2020 Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons For Sentence
Overview
[1] Morris Wapoose pleaded guilty to defrauding Anishnawbe Mushkiki Health Clinic of a sum exceeding $5,000 contrary to section 380(1)(a) of the Criminal Code between April 2012 and March 2014. The plea is based on his admission that the amount defrauded was $59,901.70.
[2] In addition to restitution, the Crown submits that the appropriate sentence is imprisonment in the range of six to nine months. Based on Mr. Wapoose’s personal circumstances, including his need for kidney dialysis, Mr. Matthews submits that the principles of sentencing can be adequately addressed by a conditional sentence order for 12 months plus probation.
The Facts
Circumstances of the Offence
[3] Anishnawbe Mushkiki is a Ministry of Health funded Aboriginal Health Access Centre. It provides culturally appropriate primary health care, integrated chronic disease prevention counselling and traditional and overall wellness programs to over 6,000 clients in the Thunder Bay area.
[4] Mr. Wapoose was a respected leader in his home community and was appointed to the Board of Directors of this nonprofit organization in 2006. At the time of this fraud, Mr. Wapoose held the position as Treasurer. As such, he was a signing officer and could sign cheques on behalf of the organization.
[5] According to the facts as read in by the Crown, and not disputed by Mr. Wapoose, Mr. Wapoose was one of several board members and employees who defrauded the organization. The fraudulent activity started with the Executive Director of the organization, Ms. Gagnon, and the Chief Financial Officer, Ms. Mainville, who were the main beneficiaries of the fraud.
[6] Ms. Gagnon pleaded guilty to defrauding the Centre of approximately $360,000 and was sentenced to imprisonment for 18 months. Ms. Mainville pleaded guilty to defrauding the Centre of approximately $270,000 and was sentenced to imprisonment for 12 months. Both were ordered to make restitution.
[7] Mr. Wapoose benefited by receiving consulting fees and other benefits that he was not entitled to receive. He signed cheques knowing that they were fraudulent and without authorization for Ms. Gagnon and Ms. Mainville and others.
[8] According to the victim impact statement submitted by Michael Hardy, the current Executive Director of the Centre, the activity of Mr. Wapoose and others had a “dramatic impact” on the Centre and those whom the Centre serves. The Centre believes that almost $800,000 was misappropriated. Additionally, the Centre incurred forensic accounting and legal fees exceeding $200,000 to investigate this fraud. Consequently, the Centre has had to sell assets, including a clinic building, because of these losses and services have been negatively affected.
Circumstances of the Offender
[9] Mr. Wapoose is 64 years old. Although he lives in Thunder Bay currently, he is from Neskantaga First Nation. He has been married for 40 years. At present, he and his wife care for six grandchildren.
[10] Both Mr. and Mrs. Wapoose have significant health issues. Mr. Wapoose suffered a heart attack in 2010 and kidney failure in 2013. He requires kidney dialysis three times per week.
Pre-sentence Report
[11] Mr. Wapoose has no criminal record except for an impaired driving conviction in 1995. After that conviction he attended residential treatment and, since then, has not experienced alcohol abuse issues.
[12] According to the probation officer, Mr. Wapoose has an “extensive and admirable employment history” which includes having been the Executive Director and Program Manager for Matawa First Nations Management. Because of his experience, he was appointed to the Centre’s board in 2006.
[13] At present, Mr. Wapoose receives about $2,400 per month through ODSP.
[14] The probation officer noted:
The subject spoke candidly regarding the impact of his criminal charges and expressed embarrassment associated with his reputation within the community, advising he was additionally subjected to persecution by social media. He viewed his predicament as traumatic and life altering. He disclosed experiencing significant humiliation and consequently has bouts of anxiety.
[15] Recommendations included probation with restitution at $400 per month and counselling.
Gladue Report
[16] A comprehensive Gladue report was provided by Nishnawbe-Aski Legal Services Corporation.
[17] As noted, Mr. Wapoose is a member of Neskantaga First Nation which is a remote community accessible by air and, from time to time, by winter road.
[18] He was raised primarily by his grandmother because he was neglected by his parents due to their residential school experiences. Consequently, he was separated from his five siblings for most of his life. Four of his five siblings are dead. His younger sister was murdered. Another sister committed suicide while incarcerated. Another sister died due to alcohol-related issues. His grandmother died about 10 years ago.
[19] Two of his sons committed suicide, Jason in March 2005 at 27 and Rocky in May 2010 at 29. In 2013, his wife’s nephew committed suicide while living with them.
[20] When he was about eight years old he attended residential school in Moose Factory for one year and then he attended another residential school in Sault Ste. Marie. He experienced emotional and mental abuse from school staff and other students. As noted by the report writer, it is acknowledged that the goal of the residential school system was “institutionalized assimilation by stripping Aboriginal people of their language, culture and connection with family.” The Residential School Syndrome has, for many, resulted in a “lifestyle of uncertain identity, often associated with self abusive behaviors.”
[21] Starting in 1968, Mr. Wapoose attended high school in Geraldton and he lived in a boardinghouse. He experienced racism and bullying “almost every day”.
[22] As a teenager and young man, Mr. Wapoose abused alcohol and became dependent. He said that he drank alcohol to cope with life’s difficult situations. However, as noted, he was charged with impaired driving and attended residential treatment. He has maintained sobriety since then.
[23] He has worked as a teacher’s aide in his community, economic development officer and band manager. In the late 1980s, he was elected Chief of his community. Since 2001, he was employed in various capacities with Matawa, most recently as Executive Director of Employment and Training Services. He lost that job as a result of this charge. In addition to his board work with the Health Centre, he was also a board member for Nishnawbe-Aski Legal Services.
[24] The Gladue report writer concluded that a number of adverse factors have impacted Mr. Wapoose’s life including:
a) emotional abuse and neglect as a child due to his parents’ experiences at residential school and lack of affection and inability to provide parental skills;
b) attendance at residential school for four years in his childhood that affected familial relationships with his own parents, siblings, and his own children;
c) family breakdown due to his parents of alcohol use and subsequent separation;
d) alcohol abuse, that affected him and his family from a young age and continued into his own adult hood;
e) loss of identity and culture, due to time spent in residential school; and
f) grief and trauma experienced by Mr. Wapoose from the passing of numerous close family members.
[25] The following restorative justice options were submitted for consideration:
a) attending counselling with Tibishkogijig Mental Health and Consulting Services to address familial relationship breakdown, grief and trauma, and residential school effects;
b) attending the HUB Program offered by Nishnawbe-Aski Legal Services to complete the Financial Literacy program; and
c) to continue to attend traditional ceremonies (sweat lodges, pipe ceremonies) and then to continue to practice cultural activities (smudges, powwows).
Restitution
[26] To date, Mr. Wapoose has not made any restitution. Shortly after pleading guilty to this offence, Mr. Wapoose won $100,000 in a lottery. He bought a van. $43,000 remain. The Centre brought civil proceedings and obtained an order that the remaining proceeds be paid into court.
Mr. Wapoose’s Statement to the Court
[27] When given an opportunity to address the Court Mr. Wapoose said that he felt bad and ashamed about what he had done.
Positions of the Parties
The Crown
[28] Relying upon three cases from the Ontario Court of Appeal, (R. v. Collins, 2011 ONCA 182, R. v. Mathur, 2017 ONCA 403, R. v. Piccinini, 2018 ONCA 433), the Crown argues that a jail sentence in the range of six to nine months is appropriate to give effect to the sentencing principles of denunciation and deterrence. All of these cases involved mature individuals without criminal records. The Crown notes that the co-accused, Ms. Mainville and Ms. Gagnon, received sentences in the range of 12 to 18 months although the Crown acknowledged that both benefited more than Mr. Wapoose and that neither had health issues similar to those of Mr. Wapoose.
[29] The Crown argues that many of the aggravating factors set out in s. 380.1(1) are present in this case. The Crown notes that this was an abuse of a position of trust and that this fraud was perpetrated over years. The Crown notes the devastating effect that this fraud had on the organization.
[30] The Crown seeks a prohibition order under s. 380.2 that Mr. Wapoose not be employed or volunteer in any capacity that involves having authority over any real property, money or valuable security of another person or organization.
[31] The Crown seeks immediate restitution of the funds paid into court and an order for the payment of the balance of the funds over time.
[32] Given Mr. Wapoose’s age and background, the Crown submits that there is no need for a probation order for rehabilitation.
Mr. Wapoose
[33] Mr. Matthews, on behalf of Mr. Wapoose, argues that, given Mr. Wapoose’s personal circumstances and, particularly, his need for dialysis, a conditional sentence order of 12 months followed by probation would address all of the principles of sentencing, including denunciation and deterrence. He relies upon the recent Ontario Court of Appeal decision of R. v. Sharma, 2020 ONCA 478 and upon R. v. Lam, 20214 ABPC 90, a decision of the Alberta provincial court.
[34] He argues that $40,000 of the funds paid into court be ordered to be paid out to the Centre as restitution now and that Mr. Wapoose be given up to 12 months to complete restitution. Mr. Wapoose anticipates receiving a settlement soon from the Residential Schools fund. Probation should follow with community service for two years.
The Law
Sentencing
[35] The following Criminal Code sections are relevant:
Purpose and Principles of Sentencing
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Section 718.2(e) requires that sentencing determinations consider the unique circumstances of aboriginal peoples.
Analysis and Disposition
[36] R. v. Collins, 2011 ONCA 182, is similar to the case before me. Ms. Collins was a 51-year-old Indigenous first offender who pleaded guilty to fraud over $5,000. The fraud was described as a large-scale fraud directed at the Ontario Works program delivered on the Fort William First Nation. She retained approximately $65,000 of the total proceeds of $96,000 for her own benefit. She had a gambling addiction and a disabled daughter at home. On appeal her sentence was reduced from 16 months imprisonment to 10 months imprisonment plus restitution and probation. Gladue factors were present. It was noted that the accused was neither the sole nor primary offender. The Court of Appeal ruled that the trial judge erred in not giving sufficient weight to the impact of the accused’s incarceration on her disabled child.
[37] I agree with the Crown that, ordinarily, a period of incarceration is required to give effect to the sentencing goals of denunciation and deterrence. However, as noted in R. v. Sharma:
Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate depending on “the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served”. (Sharma at para. 171).
[38] In Sharma the court observed that conditional sentences came into force “as part of major sentencing reforms intended to encourage restorative justice in sentencing and to reduce over incarceration …”. (Sharma at para. 29). As the court also observed, s. 718.2(e), instructing judges to consider all sanctions, other than imprisonment for aboriginal offenders, was enacted at the same time.
[39] While instructive, I disagree with Mr. Matthews that the Lam decision is directly applicable to this case. Ms. Lam, who suffered from a diagnosed gambling addiction, used her position as a manager of human resources to defraud her employer of about $44,000. Like Mr. Wapoose, she had no criminal record. Unlike Mr. Wapoose, Ms. Lam made full restitution almost immediately. A conditional sentence with strict house arrest conditions was deemed appropriate for Ms. Lam.
[40] In considering the appropriate sentence I have considered the principles of denunciation and deterrence, the Gladue factors, the sentences received by Ms. Mainville and Ms. Gagnon, the impact upon the organization, the guilty plea, and the fact that Mr. Wapoose must attend at the hospital for kidney dialysis three times per week.
[41] In these special circumstances, a fit sentence is a sentence which may be served in the community pursuant to a conditional sentence order which shall be in effect for 12 months. The following conditions shall apply to Mr. Wapoose:
a. he must keep the peace and be of good behaviour;
b. he must report in person to his probation officer within four business days of this decision and thereafter as required by the probation officer;
c. for the first six months of the conditional sentence, he will be subject to a 24 hour curfew requiring him to remain in his residence 24 hours a day subject to exceptions for medical treatment and counselling as hereinafter described;
d. for the subsequent six months of the conditional sentence, he will be subject to a curfew requiring him to remain in his residence from 10 PM until 7 AM subject to exceptions for medical treatment only;
e. he must attend counselling with Tibishkogijig Mental Health and Consulting Services to address familial relationship breakdown, grief and trauma, and residential school effects;
f. he must attend the HUB Program offered by Nishnawbe- Aski Legal Services to complete the Financial Literacy program;
g. he must, within 10 business days of this decision, as restitution, consent or otherwise cause the funds paid into court in the amount of $43,000 to be paid to the Anishnawbe Mushkiki Health Clinic;
h. he must, as restitution, make payment of the balance of the restitution owed of $16,901.70 to Anishnawbe Mushkiki Health Clinic within 12 months of this decision.
[42] After the expiry of the 12 month conditional sentence order, Mr. Wapoose is to be placed on probation for a period of two years. In addition to the statutory conditions, he shall report as required and, within that two-year period, complete 240 hours of community service with an Indigenous organization as approved by his probation officer. It is recognized that Mr. Wapoose has skills which may benefit many organizations. The community service is ordered so that Mr. Wapoose may, in some small measure, make up for the harm that he has caused to his community and, also in some small measure, assist in addressing his shame caused by his actions.
[43] There shall also be in order under section 380.2 that Mr. Wapoose be prohibited for life from employment or volunteering in any capacity that involves having authority over any real property, money or valuable security of another person or organization.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: November 16, 2020
COURT FILE NO.: CR-19-0080-00
DATE: 2020-11-16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
MORRIS WAPOOSE
REASONS FOR SENTENCE
Newton J.
Released: November 16, 2020
/lvp