Court File No. CR-18-9372
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BRENDA ELLIOT
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE C. BRAID with a Jury
on January 10, 2020, at KITCHENER, Ontario
APPEARANCES:
L. Doherty R. Heighton/J.M. Drexler
Counsel for the Crown Counsel for Brenda Elliot
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross- Examination
Re- Examination
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE:
REASONS FOR SENTENCE 1
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered:
Transcript Completed:
April 7, 2022
Ordering Party Notified:
FRIDAY, JANUARY 10, 2020
R E A S O N S F O R S E N T E N C E
BRAID, J.: (Orally)
I - Overview
Brenda Elliot was found guilty on May 23, 2019, following a trial by jury, of the following offences committed in 2013 and 2014:
Defrauding the Independent Living Centre of money exceeding $5,000.
Using a forged document as if it were genuine, namely a cheque.
Using a forged document as if it were genuine, namely an expense report.
The jury found that the quantum of the fraud exceeded $5,000. I am required to first determine the exact amount of the fraud. I shall first address findings of fact that inform the sentencing in this case and then turn to the analysis of the fit and appropriate sentence.
II - Facts
The Independent Living Centre of Waterloo Region, (ILC) is a non-profit agency that is funded through government grants, donations and fundraising. They provide supports to adults with disabilities in the community.
Ms. Elliot was employed as the Executive Director of ILC from June 10, 2013 until April 3, 2014. In that position, she was an employee of the ILC board and was accountable to the board. Other ILC employees reported directly to Ms. Elliot.
1. Count 1: fraud over $5,000
The jury found that Ms. Elliot defrauded ILC of more than $5,000. Because they made no specific findings of fact, I am required to determine the quantum of the fraud which is somewhere between $5,000 and $7,899.39, prior to any repayment.
Defence counsel submits that the ultimate value is not as high as the $7,899.39 alleged, and states that there is a lack of proof of impropriety in many cases. The Court must be convinced beyond a reasonable doubt that each impugned transaction was for an illegitimate purpose in order for it to be included in the overall total.
At the start of her employment Ms. Elliot was issued an ILC business Mastercard. There was no written policy governing its use, but the expectation was that it would be used for work purposes. Cardholders would review their own statements and submit receipts to the finance coordinator, who would pay the bill on behalf of ILC monthly.
During the first five months of her employment, there were no issues with respect to Ms. Elliot's use of the credit card. ILC detected irregularities with respect to the use of her credit card after that. ILC board members met with Ms. Elliot twice in March of 2014. The concerns raised had to do with transactions after the first five months of employment.
At the first meeting, Ms. Elliot made the following statements regarding specific transactions:
She stated that the purchases at Pleasant Ridge Saddler and Greenhawk Harness were training supplies. She stated that she used the ILC business credit card to purchase team-building books and DVDs at the saddlery stores for $118.54 and $305.04.
She admitted that the December purchases from Le Chateau, Sports Chek, La Senza and Sephora were not anything to do with work.
She stated that the Beertown purchase was for a legitimate business meeting and that she has the receipt.
She stated that she had never used the business Mastercard for cash advances.
She acknowledged that one should never take cash advances. She acknowledged that employees must not accrue any charges that they cannot expense out since ILC is a not for profit organization.
- Ms. Elliot acknowledged that the money is the taxpayers' money and that she had a fiduciary responsibility to make sure that all funds are spent properly. She denied involvement in any financial irregularities or improprieties. She promised to provide bank statements and receipts.
At the second meeting, Ms. Elliot made the following statements:
She apologized that she had not been 100 percent honest and forthcoming.
She stated that there was no excuse for personal use of the credit card and that she deeply regrets her actions. She stated that she understood that, although there is no policy around the use of the credit cards, that absolutely it is not for personal use.
She acknowledged that, whatever charges are not deemed as valid expenses, she is absolutely responsible for.
She acknowledged that one purchase was for her daughter Meghan's sailing camp, which is personal.
She acknowledged taking the cash advances. She stated that she has no excuse for her behaviour.
She stated that she would come to a full accounting of what was actual expenses and what was not.
She stated that her relationship with her common-law husband ended in January and that her husband's brother took money from their line of credit and credit cards.
She gave a cheque payable to ILC in the amount of $1,297 as a partial repayment of some of the personal expenses and promised to make full repayment in the future because it was not her money.
She acknowledged that "there is really no excuse, no way to pretty up" something that she should not have done.
She acknowledged that it was both fraudulent and deceitful. She admitted that she had used funds inappropriately and took responsibility for it.
ILC asked Ms. Elliot for receipts on two occasions. Ms. Elliot stated that she had a sewer backup in her home; things had to be put in storage and her receipts were in storage. ILC never received receipts from Ms. Elliot for the transactions that were questioned by ILC.
Ms. Elliot did provide some explanations at the meetings, stating that she would provide receipts and materials to support the claim that the expenses at Beertown and the saddlery shops were for business purposes.
Given that there is some evidence from the accused, I have considered it, as I am required to do pursuant to W.(D.). Having considered all of Ms. Elliot's evidence, I do not believe it and I reject it outright. Her evidence does not leave me in a doubt.
In light of the fact that the jury clearly rejected Ms. Elliot's explanations as well, I do not intend to spend much time explaining why I reject her statements and explanations.
I find that her statements were blatantly inconsistent, self-serving and in some cases nonsensical. She acknowledged that she had to provide proof that purchases were legitimate business expenses. Despite that knowledge, she did not follow through on her promises to provide that proof. I reject Ms. Elliot's explanations.
I have, therefore, turned my mind to the evidence led by the Crown and whether the Crown has established beyond a reasonable doubt that the transactions were not legitimate.
Exhibit 10 at trial contains a chart that lists the transactions that ILC states were not for legitimate business purposes. These transactions include numerous cash advances. For many of the cash advances, there were deposits of similar amounts into Ms. Elliot's personal bank account on the same day. I find that none of the cash advances were for a legitimate business purpose. Ms. Elliot herself acknowledged this at the second meeting.
The chart in Exhibit 10 also includes purchases at the following locations:
Clothing and makeup retail stores such as Le Chateau, La Senza, Sephora, Forever 21, Ardene and Shoppers Drug Mart;
Restaurants and food services vendors such as Beertown in London, Subway and Tim Hortons;
Entertainment, sports and electronics such as equestrian stores, sports retailers, the Apple store, satellite television fees and a hotel stay;
Various PayPal online payments for expenses including Facebook fees, LPFS Concept and sailing camp fees. While no evidence has been provided regarding the description of LPFS Concept, the fact that the payment was made through PayPal on a weekend demonstrates that this was not a business expense;
Home Depot and a business that sells woodcarving tools;
Health services retailers who provide sports medicine, chiropractic and massage therapy; and
parking in London and gas expenses.
Many of the purchases were made on weekends when Ms. Elliot was not working and/or in London where Ms. Elliot lived. When the ILC reviewed Ms. Elliot's expenses, it considered meetings in Ms. Elliot's calendar, and gave Ms. Elliot the benefit of the doubt and classified those expenses as a business expense if they could be connected to those meetings.
I accept the evidence of Ms. Taposhi Batabyal and Angela Korn, that they could not think of a legitimate business purpose for the remaining expenses. They could not think of a reason for Ms. Elliot to incur a legitimate business expense over a weekend or in London.
There is a complete absence of evidence that these expenses were for a legitimate business purpose. Ms. Elliot was aware that the card should only be used for business purposes and that receipts had to be produced to verify that they were for that purpose. She did not produce any receipts in relation to the impugned expenses.
I am satisfied, beyond a reasonable doubt, that each of the transactions set out in the chart in Exhibit 10 were for unsubstantiated and illegitimate purposes. The total amount of personal purchases and cash advances on the ILC Mastercard was $7,899.39. After partial repayment of $1,297 was made the total loss on count 1 was $6,602.39.
I am just going to break out of the reasons for a moment. Can I just clarify from counsel is it your position, Madam Crown, that the amount of the fraud is 7,899.39 or is it $6,602.39?
MS. DOHERTY: The amount of the fraud, it's the Crown's position, would be the first number, Your Honour, 7,899 and 39 cents.
THE COURT: Mr. Drexler?
MR. DREXLER: I'd be in - that'd be the proper amount.
THE COURT: Thank you.
2. Used forged document, namely cheque of ILC
ILC issued a cheque in the amount of 389.25 payable to a former employee. Ms. Elliot took possession of the cheque and said that she would deliver it to the employee. A signature was forged on the back of the cheque and Ms. Elliot deposited it into her bank account. There was no legitimate reason this cheque would end up in her bank account.
At both meetings with ILC, Ms. Elliot stated that she would get a certified statement from her bank that will prove that the cheque was not deposited into her bank account. She never provided such a statement. She could not have done so, as it is clear that this cheque was deposited into her personal bank account. When asked, she did not have an explanation as to how the cheque was deposited into her bank account.
The jury found Ms. Elliot guilty of using the forged cheque, as if it were genuine. The quantum of the loss on this count is $389.25.
3. Use forged document, namely expense report of ILC
Ms. Elliot submitted a forged Rotman expense report requesting reimbursement of a $1,500 tuition expense. A board member's signature was forged on this expense claim, making it appear as if the claim was approved. Ms. Elliot was reimbursed by ILC for this false expense.
At the start of the trial the parties provided an Agreed Statement of Facts stating that Ms. Elliot never registered in or took a course at the Rotman School of Management.
At the first meeting with ILC board members, Ms. Elliot stated that she was accepted to a different program at Rotman and that she was enrolled at the institution. This was demonstrably false.
She stated that she was enrolled at Rotman and described the dates, costs and subsidy for the course. She stated that the course was the "Community Health Leadership Program". She acknowledged that the name of the course was not what the receipt said. She stated that she would provide all the emails, including the email with the invoice.
She stated that she paid for the course personally and submitted the receipt for reimbursement. She acknowledged signing the expense report and denied signing Ms. Batabyal's signature on the form.
At the second meeting, she admitted that she falsified the Rotman invoice and that she was not enrolled at the institution. She acknowledged that she submitted an invoice that was not true and was not from Rotman. She stated that she did not put Ms. Batabyal's signature on the Rotman expense report.
The jury found Ms. Elliot guilty of using the forged expense report, as if it were genuine. The quantum of the loss on this count is $1,500.
Conclusions regarding the quantum of the fraud
The total amount of the fraud on the three counts is $9,788.64. After deducting the payment made by Ms. Elliot of $1,297 the total amount of the loss on the three counts is $8,491.64.
III - Impact on the Victim
The Independent Living Centre of Waterloo Region is a non-profit organization and the members of the board of the ILC are volunteers. The ILC supports the full and actively independent lives of adults with disabilities by supporting and enhancing their ability to direct their own care and services.
The stress of the investigation took a toll on the personal lives of the board. They felt shaken, shocked and numb from the repeated breaches of fiduciary duty. The board had to arrange meetings and interviews, and were concerned that Ms. Elliot's actions might damage the reputation of the agency.
The chairs felt betrayed by the fraud. Most of the consumers of ILC live on restricted incomes and experience economic restraint. Ms. Batabyal, one of the chairs, stated "to use the agency's finances, intended for the benefit of consumers, for frivolous and luxury personal expenses such as riding gear and sailing lessons and for lump sums of money is to defraud the innocent". Ms. Batabyal describes Ms. Elliot's actions as "a betrayal of trust greater than the sum of its dollars".
James Ducharme, the ILC employee who provided the employee cheque to Ms. Elliot that was the subject of count 2, has lost sleep and now second guesses decisions as a result of these events.
IV - Circumstances of the Offender
1. Relevant personal background.
Ms. Elliot is 51 years of age. She grew up in a toxic household. She had an abusive, alcoholic father and an emotionally vacant mother. She was sexually assaulted by her boyfriend when she was 16 years old. She suffered from depression in her teen years and attempted suicide when she was 19 years old.
She was in an abusive relationship with her former husband for nine years and had two daughters during that marriage. Her ex-husband, who was an alcoholic, passed away four years ago.
Ms. Elliot has a university degree in Health Administration and a Developmental Service Worker college diploma. Her career has mainly been in the long-term care and retirement home industry. She does not have a problem with alcohol or drugs.
2. Criminal Record
Ms. Elliot's criminal record consists of the following offences against past employers:
1999 fraud over $5,000: She received a suspended sentence and probation.
2004 fraud over $5,000: She received a 12-month conditional sentence, 12 months probation and a $72,000 restitution order.
2007 fraud over $5,000: She received an 18-month conditional sentence and 18 months probation.
2012 utter forged documents (three counts): She received two years less a day conditional sentence and 12 months probation.
In April of 2019, while she was on bail on these charges, Ms. Elliot was convicted of using a forged document, namely a vulnerable sector check, as if it were genuine. She applied for a job at a long-term care home and submitted a forged criminal record vulnerable sector check to secure the employment. On that charge she received a suspended sentence and probation for 18 months.
Although this offence occurred in 2017, after the offences before this Court, this conviction is relevant because Ms. Elliot cannot say that she was on bail without further charges. She continues to seek employment in a field with vulnerable members of the community, which is the type of employment that she would not otherwise and should not be able to have. It speaks to Ms. Elliot's lack of rehabilitative prospects.
3. Current Circumstances
Ms. Elliot has been in a stable relationship with her current husband for 15 years. She reports that this relationship has been supportive and happy. She has two adult daughters who attend university and who are 22 and 21 years of age.
Although she did not have a close relationship with her parents when she was a child, she maintains contact with them and with her brother. In a pre-sentence report prepared in February, she reported that her mother has Alzheimer's disease and her father was her mother's primary caregiver. Her husband recently reported that Ms. Elliot is now the primary caregiver to her mother by providing daily care. I have no evidence that her father is unable to assume the care of her mother if Ms. Elliot is incarcerated.
She has been actively involved in the community as a coach for her daughter's hockey team and engages in pro-social activities in her leisure time. She has recently attended counselling to deal with domestic, sexual and emotional abuse.
Apart from her husband, none of her family and friends know about her current or past involvement with the criminal justice system. She recognizes that her current relationships with family and friends are based on the lie that she does not have a criminal record. She states that she would be devastated if these people ever found out what she has done. It is notable that her concerns arise out of being detected for her behaviour as opposed to having any regret for the impact that her actions have had on others.
Ms. Elliot is currently employed as a general manager at a retirement residence in Waterloo since June of 2018, earning a base salary of $98,349. Her current employer is not aware of the charges or her criminal history, and I suspect she would no longer be employed if her employer knew of her criminal history. Her job will likely be terminated if she is incarcerated.
4. Attitude to the offence and efforts towards rehabilitation
Ms. Elliot plead not guilty and does not accept responsibility for the offences. Probation and parole states that her previous response to community supervision was poor. She was breach for failing to report and restitution orders have never been paid. She has been described by probation and parole as "manipulating". As an example, after being convicted of fraud of her employer nursing home, she used a different last name to obtain a new job with another nursing home so they would not find out about her criminal background.
Despite having been sentenced to numerous conditional sentences and lengthy probation orders, she continues to engage in the same type of criminal behaviour. The fact that Ms. Elliot has not told her friends and family about these charges and her criminal background does not bode
well for her prospects of rehabilitation.
V - Crown and Defence Positions
The Crown seeks a sentence of four years in jail. In addition, the Crown seeks ancillary orders for restitution, DNA and an order that Ms. Elliot not be permitted to work in a position where she has access to funds of others.
Defence counsel seeks a sentence of 90-days intermittent plus probation. He agrees that a restitution order is appropriate, and seeks an order for forfeiture and a fine in lieu of forfeiture pursuant to s. 462.37. In default of the fine in lieu, Ms. Elliot would serve six months in jail.
In keeping with the Court of Appeal decision in R. v. Dhanaswar, 2016 ONCA 229, defence counsel asks that any payment that is made be put towards restitution first and that credit be given for those payments to reduce the fine in lieu of forfeiture.
VI - The fit and proportionate sentence in this case:
A. Aggravating and Mitigating Factors
I have considered the sentencing factors are set out in s. 718 to 718.2 of the Criminal Code. In addition, s. 380.1 sets out aggravating factors that are particular to fraud offences.
Ms. Elliot was convicted following a trial. I will not treat this as an aggravating factor. However, she is not entitled to any mitigation that may have been available after a plea of guilt.
Ms. Elliot has no insight into her offending or into the impact of her actions on ILC. I do not find that her lack of remorse or lack insight are aggravating factors and it would be inappropriate to increase the sentence due to this factor. However, I find that this is a relevant consideration as I determine the ability to rehabilitate Ms. Elliot and to deter her from reoffending in the future.
Ms. Elliot is devoted to her daughters and states that the earlier offences were committed to give them a better upbringing than she had. Defence counsel submits that this puts Ms. Elliot in a different category from the offender who commits fraud for luxury goods or vacations because her focus has been on her daughters. However, her daughters appear to be unaware that their mother is claiming to have committed criminal offences for their benefit and I do not have any evidence that the money was only used for that purpose.
Ms. Elliot used charity funds to make purchases of luxury goods at Sephora, La Senza and other stores. She made purchases related to sailing camp and horseback riding, both of which are high-end lifestyle choices. She made significant cash advances to herself and used forged documents to take additional funds from the charity.
The money was not used on necessities. These offences were committed solely for greed and the use of the funds is of no moment. I do not put any weight on this submission as a result.
Defence counsel relies on R. v. Nasogaluak, 2010 SCC 6 to argue that Ms. Elliot's sentence may be reduced for delay that is excessive, but does not reach the level of a s. 11(b) violation.
In the case before the Court, much of the delay has been caused by the actions of Ms. Elliot. In my ruling on the 11(b) application, I found that Ms. Elliot was responsible for significant delays. She lied to the court about the status of her legal aid application. She did not always communicate with defence counsel once they were retained. She did not provide financial documents requested by legal aid on a timely basis. She did not tell legal aid when she moved, which resulted in delays when legal aid requests for information were returned to legal aid. She did not apply for a change of counsel with legal aid on a timely basis, and provided inaccurate information to the court about having been approved for legal aid. These actions by Ms. Elliot led to significant delays in the Ontario Court of Justice, mainly at first appearance courts. Even in the Superior Court, while awaiting sentencing, Ms. Elliot's counsel was removed from the record for reasons that are unknown to me, other than there was a breakdown in solicitor-client communication. This is defence delay. I do not accept the submission that Ms. Elliot's sentence should be reduced because of any pre-trial or pre-sentence delay.
I have considered that Ms. Elliot's employment will be negatively impacted by the sentence. However, her lengthy criminal record would have had the same effect had her employer known about it. I do not assign much weight to this factor.
The following are mitigating factors in this case:
Ms. Elliot made a partial repayment on March 26th, 2014, in the amount of $1,297.
During her second ILC interview, Ms. Elliot accepted some elements of the offences, count 1 and count 3. Even though she plead not guilty at trial, her statements at the meeting demonstrates some remorse.
However, in my view, she merely acknowledged facts that were undeniable. She continued to make false statements in relation to other facts which I shall address in a moment. I do not assign much weight to this factor as a result.
The following are the aggravating factors in this case:
Pursuant to s. 380.1(c.1), it is an aggravating factor that the offence had a significant impact on the victims, given their personal circumstances, including their age, health and financial situation. Ms. Elliot's actions impacted a charitable organization and its volunteer board. It also impacted the consumers, many of whom are vulnerable, marginalized and live at or below the poverty line. The consumers are financially dependent on the ILC to provide services to maintain their personal and physical independence within the community.
The fraud caused financial harm and potential reputational harm. Ms. Elliot's actions could have had a larger impact by eroding the public's trust in charities.
Pursuant to s. 380.1(d) it is an aggravating factor that, in committing the offence, Ms. Elliot took advantage of the high regard in which she was held in the community as the executive director of ILC.
Pursuant to s. 380.1(e) it is also an aggravating factor that Ms. Elliot did not comply with professional standards normally applicable to the role of an executive director of a charitable organization.
Pursuant to s. 718.2(a)(iii) the breach of trust is a statutory aggravating factor. Ms. Elliot acknowledged that she owed a fiduciary duty to ILC.
Ms. Elliot personally benefitted from the stolen funds and used them for nonessential goods and lifestyle expenditures. Although Ms. Elliot suggests that she took the money to benefit her daughters, much of the money went into her own bank account.
Ms. Elliot continued deceit when confronted with the fraud and forgeries. She told elaborate lies regarding her registration at Rotman and about a breakdown in her relationship to explain her actions. She talked about a sewer backup in her house in order to delay providing documentation. She maintained that she could provide banking records that she never could have produced.
Finally, her lengthy criminal record dates back to 1999. Her criminal record consists of entirely related convictions for fraud on employers. She continues to seek employment in the same field using different surnames.
B. Kind of sentence that needs to be imposed
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is a highly individualized process and each case must turn on its own specific facts. The Court of Appeal has stated that sentencing judges have wide discretion when imposing sentences: see R. v. Kerr, 2001 CanLII 21142 (ON CA), [2001] OJ No. 5085.
Assessing cases of jurisprudential value is particularly difficult in relation to fraud offences, which can drastically vary with respect to circumstances in which the offence the occurs, the value of the fraud and the circumstances of the offender.
Pursuant to R. v. McIvor (1996), 1996 ABCA 154, 106 CCC (3d) 285, the breach of trust warrants a custodial sentence.
I have reviewed all of the cases provided by the parties. They provide helpful guidance to the Court, but many are distinguishable from the case before the Court because their facts are different. There is a broad range of sentences that has imposed in similar cases. Much turns on the individual circumstances of the case and the offender.
The following is a summary of the relevant decisions:
a. R. v. Takashita, 2013 ONSC 1385. The accused was convicted of one count of defrauding a church. He was 68 years old with health problems and had no criminal record. He made repayments in the hope of avoiding detection. The fraud was $80,000 but there was a $23,000 loss after repayment. The court found that there was no risk of reoffending. The court imposed a sentence of 16 months jail.
b. R. v. Chernyakhovsky, 2018 ONCJ 54. The accused plead guilty to a $63,000 fraud. She had a lengthy related record, including a penitentiary sentence for fraud. She had paid $10,000 towards restitution at the time of sentencing and had been diagnosed by psychiatrists with major depressive disorder with psychotic features. The court imposed a sentence of three years jail.
c. R. v. Rogers, July 11, 1995, Supreme Court of Northwest Territories. After trial the accused was found guilty of a $42,000 that took place over 18 months. The accused was a public official and the breach of trust was especially aggravating, as it could have impacted the public and the administration of justice as a whole. The accused was sentenced to 4 years in custody.
d. R. v. Morrison and Wells, 2012 BCSC 155. Two accused pled guilty to a $900,000 fraud committed over three years that destroyed the organization that Mr. Morrison worked for. The court considered Gladue and addiction issues. The accused both had dated and unrelated records and had attended residential treatment. They expressed deep and genuine remorse and took responsibility for their actions. Morrison was sentenced to two years and Wells was sentenced to 18 months.
e. In R. v. Vidinovski, 2018 ONSC 6017, the accused was convicted after trial of 3 counts of fraud over $5,000 and 4 counts of uttering a forged document. In an employment setting, the accused forged documents over 3 years benefitting in the amount of $81,527.56. The accused was 53 years old and had a related record. She was sentenced to 18 months in jail on all counts concurrent, followed by 2 years probation.
f. In R. v. Gaurino, 2017 ONSC 4174, a first offender altered cheques provided by her 98 year old employer over 3 months. The amount taken was $16,629. The offender was found to have no risk to reoffend. The court imposed a 90-day intermittent sentence plus restitution.
g. In R. v. Dieckmann, 2014 ONSC 717, affirmed 2017 ONCA 575, the court imposed a 4 year penitentiary sentence on the directing mind of a criminal organization responsible for stealing $5.7 million in public money. The accused had no criminal record and was convicted after a four month jury trial.
The most important principles in sentencing a person who has committed a breach of trust are general deterrence and denunciation. Absent exceptional circumstances, a person who commits a fraud that involves a breach of trust must expect a term of imprisonment. See R. v. Wilson, 2016 ONCA 888.
Denunciation, specific and general deterrence are of primary importance in this case. A message must be sent to Ms. Elliot and to the wider community that this type of behaviour, particularly towards a charitable organization, will not be tolerated.
This was not a particularly sophisticated fraud and it took place over four months, which is not a long period of time. However, Ms. Elliot was in a position of trust within a charitable organization and took advantage of that, potentially affecting the organization, the board and consumers.
Defence counsel submits that a 90-day sentence plus probation and a fine in lieu of forfeiture would address both general and specific deterrence. The sentence would permit Ms. Elliot to keep her employment so that she can make restitution.
I find that the sentence proposed by the defence is wholly inadequate in the circumstances of this case. Ms. Elliot was previously sentenced to three different conditional sentences of increasing durations. She still has an outstanding restitution order of $72,000 and a victim fine surcharge of $100 (both from 2004), to which she has made no contributions. She has been out on bail on these charges since 2014 and has failed to make any contribution to repay ILC for its losses, apart from the initial repayment. Ms. Elliot's pre-sentence report and letter from her husband state that she and her husband own a house and have started a savings account. She has been making almost a six figure income and yet has made no effort to repay the ILC or contribute toward the outstanding restitution order.
The offence is serious, given the breach of trust. Ms. Elliot has a high degree of moral culpability as she was solely responsible for the offences. Ms. Elliot has not previously been incarcerated. I have been provided with transcripts of some of her prior sentencing hearings. Given the seriousness of the prior offences, Ms. Elliot has, indeed, been fortunate. Although Ms. Elliot received lenient sentences in the past, it is not this Court's role to re-sentence Ms. Elliot for those prior offences. However, the record demonstrates that Ms. Elliot has been given every opportunity to rehabilitate herself but has not done so. Ms. Elliot's criminal record suggests that she is at a very high risk to reoffend.
Although the partial repayment by Ms. Elliot is a mitigating factor, I find that she made this payment in the hopes of having her fraudulent behaviour remain an internal matter within ILC and to avoid prosecution.
It is notable that Ms. Elliot has received three prior conditional sentences which have increased over time: First 12 months, then 18 months, and finally 2 years less a day. A conditional sentence is a jail sentence, although the offender does not actually step into the custody of an institution. I acknowledge that the maximum conditional sentence of two years less a day is not necessarily equivalent to a sentence of incarceration of the same duration. I have considered the Step Principle and I am mindful that the sentence that I impose must not be unduly lengthy, given her prior sentences.
Ms. Elliot has a serious and related record. She committed a breach of trust that had a significant impact on the victim which is a charitable organization and its consumers. She has continued a pattern of defrauding employers with apparent impunity.
Having considered all of the factors in this case, I find that an appropriate sentence on the charge of fraud over is one of three years. In addition, given the seriousness of the offence, there will be ancillary orders preventing her from working in this sector, for restitution and for a fine in lieu of forfeiture.
Ms. Elliot was arrested and released on bail the next day. She shall be given credit for two days time served.
Ms. Elliot, would you please stand. On count 1, fraud over $5,000, I sentence you to 3 years in custody less 2 days. On count 2, utter forged document, I sentence you to 3 years less 2 days concurrent. On count 3, utter forged document, I sentence you to 3 years less 2 days concurrent.
You may have a seat while I read the following ancillary orders.
- Restitution order, s. 738(1)(a). Section 738(1)(a) states that the court may make an order for restitution. In the case of loss of property of any person as a result of the commission of the offence, the court may require the offender to pay restitution in an amount not exceeding the replacement value of the property, which in this case is $8,491.64. ILC paid a $1,000 deductible to its insurance company and the loss was paid out by the insurance company to ILC.
Ms. Elliot shall pay restitution in the following priority:
$1,000 to Independent Living Centre of Waterloo Region;
$7,491.64 to Northbridge Insurance Toronto.
In a moment, I shall make an order for a fine in lieu of forfeiture. The restitution order shall take priority over payment of the fine in lieu of forfeiture ordered herein. The fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order.
- Fine in lieu of forfeiture s. 462.37
Pursuant to s. 462.37(3), if property cannot be made subject to a forfeiture order because it cannot be located or has been comingled with other property, the court may order the offender to pay a fine in an amount equal to the value of the property. In this case, money was taken by Ms. Elliot and cannot be the subject of a forfeiture order. It is therefore appropriate to make a fine in lieu of forfeiture.
This Court orders that Ms. Elliot shall pay $8,491.64 as a fine in lieu of forfeiture. Ms. Elliot shall have 4 years to pay this fine. In default of payment of that fine, Ms. Elliot shall serve a term of imprisonment of six months in jail. This term of imprisonment shall be served consecutively to any other term of imprisonment imposed on the offender or that the offender is serving.
- DNA Testing
As fraud over $5,000 and utter forged documents are secondary offences, and in light of Ms. Elliot's record and other considerations, I find it is appropriate to make an order pursuant to s. 487.051 of the Criminal Code authorizing the taking from Brenda Elliot for the purpose of forensic DNA analysis any number of samples of one or more bodily substances that is reasonably required for that purpose. This order is made on all three counts.
- Prohibition order regarding employment
There will be an order pursuant to s. 380.2 prohibiting Brenda Elliot from seeking, attaining 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. This order is for 20 years. This order is made on all counts.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Vera Simachowskyi, certify that this document is a true and accurate transcript of the recording of R. v. Brenda Elliot, in the Superior Court of Justice held at KITCHENER, Ontario, taken from Recording No.
4411_CrtRm-506_20200110_084535__10_BRAIDC.dcr which has been certified in Form 1.
April 7, 2022
(Date) (Signature of Authorized Person)
Vera Simachowskyi
ACT ID # 2675510211