Court File and Parties
Court File No.: CR-23-30000283-000 Date: 2023-12-05 Superior Court of Justice – Ontario
Re: His Majesty the King, Crown And: Robert Konashewych and Adellene Balgobin, Defendants
Before: S.F. Dunphy J.
Counsel: Peter Scrutton and Sam Walker, for the Crown Michael Lacy and Marcela Ahumada, for the Applicant Robert Konashewych Juliana Greenspan and Rachel Allen, for the Defendant Adellene Balgobin
Heard at Toronto: October 13, 2023
Reasons for Decision
1Robert Konashewych and Adellene Balgobin were convicted by a jury of defrauding the Estate of Heinz Sommerfeld and/or Mr. Peter Stelter of money with a value in excess of $5,000 contrary to s. 380(1)(a) of the Criminal Code on June 23, 2023. Ms. Balgobin was also convicted of breach of trust of a public official in connection with the duties of her office contrary to s. 122 of the Criminal Code. The parties made their sentencing submissions on October 13, 2023 and my decision was reserved until this day in order to permit time for the sale of securities the proceeds of which will be subject to the forfeiture order discussed herein.
2The jury’s findings of guilt in this case were necessarily premised upon the jury finding that Mr. Konashewych fraudulently applied for and received probate of a fabricated will of Mr. Heinz Sommerfeld, a man with whom he had no relationship, and that Ms. Balgobin assisted him in carrying out this fraud in connection with her office at the Office of the Public Guardian and Trustee (the “PGT”). The fraud was carried out over a period of more than 12 months and resulted in Mr. Konashewch receiving the value of the estate of Mr. Sommerfeld held by the Public Guardian and Trustee, thereby defrauding Mr. Sommerfeld’s Estate and its sole known beneficiary Mr. Peter Stelter of funds that Mr. Konashewych had no right to.
3The amount by which the Estate or Mr. Stelter was defrauded was $831,351.55. That amount remained in an investment account of Mr. Konashewych into which the funds had been transferred and was restrained by the Crown following his arrest in December 2019.
Circumstances of the offences
(i) Mr Sommerfeld and his family
4On June 19, 2017 Mr. Heinz Sommerfeld passed away. He was 78 years old. For the previous nine years of his life, he had been living in long-term care homes suffering from advancing dementia. Mr. Sommerfeld had never married and had no children. His only known surviving relatives were his younger brother Mr. Peter Stelter, seven years his junior, as well as Mr. Stelter’s own adult children to whom Mr. Sommerfeld had been attached prior to the onset of dementia.
5Mr. Stelter had lost touch with his brother after the death of their mother whose funeral in 2005 the reclusive Mr. Sommerfeld declined to attend. In the intervening years, Mr. Stelter lost his job and his precarious finances compelled him to move from the Toronto region to his cottage in the Haliburton area. He was unaware of his brother’s health challenges or the fact that he was apprehended by police in a state of confusion on September 30, 2008 and ultimately committed to a psychiatric facility with the Ontario Public Guardian and Trustee (or PGT) appointed his guardian in October 2008. The last contact with Heinz Sommerfeld that he was aware of came in 2007 when Heinz responded to an invitation to his grandchild’s christening with a card and a cheque by way of gift. He tried to visit his brother on one occasion by car and found the house sold. Previous calls to his phone went unanswered.
6From its appointment in 2008, the PGT’s guardianship of Mr. Sommerfeld continued until his death on June 19, 2017. As guardian of Mr. Sommerfeld’s property and care while he was alive, PGT assumed responsibility for all of his financial affairs and property. In the first months and years of its guardianship, PGT’s files reveal that efforts were made to locate his friends and family. Some information was gleaned from Mr. Sommerfeld including Mr. Stelter’s name, but his dementia was advancing. Neighbours were consulted, Mr. Sommerfeld’s care providers were consulted. A thorough search of his house was made and mail was forwarded to the PGT. While Mr. Stelter’s name had been received, his location was unknown and his relationship uncertain. A neighbour and a former girlfriend visited a few times and Mr. Sommerfeld’s contacts with the outside world gradually tailed off and then disappeared while his dementia deepened as the years passed.
7Mr. Sommerfeld was not without means when he was taken under the PGT’s wing. He had a stable pension from the Ontario government from long service and his Mississauga home was sold on his behalf by the PGT in 2009 with the proceeds invested. His estate ended up amounting to approximately $835,000 after payment by the PGT on his estate’s behalf certain estate expenses following his death.
(ii) The defendants’ relationship
8Mr. Konashewych has been a police officer with the Toronto Police Services since 2008. He was suspended from duty following his arrest in December 2019 and remains in that status today pending the handing down of his sentence.
9Ms. Balgobin was a Senior Client Representative with PGT whose duties included, as the title implies, managing the files of clients for whom the PGT acts as guardian. Her position at the PGT was terminated following her arrest in 2019.
10Mr. Konashewych and Ms. Balgobin met in or about 2014 when Mr. Konashewych was performing a uniformed “pay duty” assignment at the offices of the PGT. They started a romantic relationship within a short time after this meeting which relationship continued more or less continuously from that time until after their arrest in December 2019.
11Mr. Konashewych was in a long-term spousal relationship with Ms. CD whom he had known since high school. They moved into a jointly-owned condominium downtown in March 2015 after two or three years as a couple. They lived together from then until a brief separation in September 2017 and then a final separation in November 2018 when Mr. Konashewych moved out. The details of their separation were formalized with the assistance of lawyers in the months that followed. Neither was a dependent of the other.
(iii) The fraud
12Responsibility for Mr. Sommerfeld’s file at PGT had been assigned to Ms. Balgobin as SCR earlier in the year before Mr. Sommerfeld died on June 17, 2017. In that capacity she was notified by the long-term care home in which Mr. Sommerfeld was living of his death on June 20, 2017.
13On June 20, 2017, Ms. Balgobin checked out personal identification documents of Mr. Sommerfeld from the PGT “vault”. These included various identification documents containing the signature of Mr. Sommerfeld. Such documents would normally be sent to the Estate Trustee or Administrator in the usual course – no such official had yet been appointed.
14The evidence does not reveal when precisely Ms. Balgobin put in motion a scheme to assist in the processing by the PGT and ultimately the Superior Court of Justice of a false claim by Mr. Konashewych to be the sole heir and executor of the Estate of Mr. Sommerfeld. It is not necessary to establish the date with precision. The scheme was certainly in motion within a very small number of days following Ms. Balgobin learning of the death of Mr. Sommerfeld. In addition to being a client whose affairs she was responsible for managing, Mr. Sommerfeld also had the attributes of having substantial assets in his estate, no known will and no known family. At least initially, this must have appeared an opportunity having little risk of discovery.
15Whether the identification documents were withdrawn initially for routine administrative reasons and subsequently used to advance the scheme or withdrawn to advance an already formulated plan is a distinction without a difference. It seems very highly likely that the documents were checked out to explore the potential of such a scheme at the very least. The excuse offered for needing these documents – verifying whether Mr. Sommerfeld somehow had a right to a German pension post-mortem having left the country as a very young child and worked for the Ontario government since graduation - seems rather hard to credit. The documents withdrawn contained several examples of Mr. Sommerfeld’s signature which any forger of a will of Mr. Sommerfeld would need access to. She not only had access, she actually accessed them on this occasion at least. Such access would afford her all the opportunity needed to make copies of all the exemplars of his signature she wished.
16There were indications within the PGT file of the existence of a half brother named Peter Stelter but not an address. For whatever reason, no searches appear to have been done for him in 2008. After the death of a client such as Mr. Sommerfeld, the Trust Department of the PGT assumes carriage of the file and responsibility for transitioning it to an Estate Trustee or Administrator while the SCR completes wind-down. On-line searches for Mr. Stelter by a PGT Trust officer to whom the file was assigned quickly narrowed the field of possible candidates to two and letters were sent out to find out if either was related to Mr. Sommerfeld. Ms. Balgobin was monitoring electronic entries on the file and noted the sending of these letters that same morning.
17Shortly after these letters were sent but before they could have been responded to, “someone” from the PGT contacted Mr. Stelter on June 22 and confirmed with him over the phone that he was Mr. Sommerfeld’s brother. Mr. Stelter did not know the name of the person to whom he spoke. Ms. Balgobin testified that it was she who phoned Mr. Stelter. There is no reason to reject that aspect of her evidence which is partially corroborated by the evidence of the Trust officer then assigned to the file even if Ms. Balgobin’s account of the contents of the conversation she admitted to having with Mr. Stelter differs from that of Mr. Stelter and was more than a little self-serving.
18By June 22, less than a week after Mr. Sommerfeld’s death, Ms. Balgobin knew that there was very likely a surviving relative. There is no reason to believe that she was aware of that fact prior to this date. The scheme to defraud that Estate was not abandoned at this time whatever level of maturity it had by then reached. While next of kin and thus a possible claimant to the estate of Mr. Sommerfeld had emerged, the call permitted her to verify that Mr. Stelter possessed neither a will nor any current information. If Mr. Stelter could be deflected, the scheme to file a fraudulent will could proceed. He was and it did.
19By June 26, 2017, I conclude that the scheme to defraud the Estate was certainly launched if not several days earlier. On this day, Ms. Balgobin placed what can only be described as fraudulent entries into the PGT file system about a call from “Bob Kay” who claimed to possess a will of Mr. Sommerfeld. Whether in fact Ms. Balgobin received a call from “Bob Kay” that day, the call as it was described in the record created by Ms. Balgobin certainly did not occur. Ms. Balgobin knew that “Bob Kay” was none other than her boyfriend Mr. Konashewych. The record created by Ms. Balgobin for the file was a fiction.
20On July 12, 2020, the PGT received a copy of a will purporting to be from Mr. Sommerfeld naming Mr. Konashewych as his sole heir and beneficiary. The will was a fabrication and known to be so by both Mr. Konashewych and Ms. Balgobin. Mr. Konashewych had never met Mr. Sommerfeld. The alleged witnesses to the forged will never existed. They were invented names with real addresses that no such person had ever inhabited.
21Although most file responsibility beyond arranging a funeral and paying final expenses is transitioned from the SCR to an official in the Trust department at PGT upon the death of a client, there is a grey zone where SCR’s such as Ms. Balgobin may continue to provide assistance on the file until it is finally transitioned to an estate representative. Ms. Balgobin made sure that she insinuated herself into that grey zone as far as possible thereafter. Without giving any indication to professional colleagues that she not only knew but was romantically involved with “Bob Kay”, she arranged to be the recipient of most telephone calls or written communications exchanged between the PGT and Mr. Konashewych or his legal representatives over the coming months as his application to become Estate Trustee of the Estate of Mr. Sommerfeld wended its way through the PGT and then the Superior Court processes. Colleagues and supervisors were only too happy to let her deal with calls or correspondence and save themselves the trouble of doing so. Her actions were not such as to arouse any particular suspicion on their part. Her file entries were all apparently normal and none of them gave any indication of her knowledge of the forged will or of her on-going relationship with the beneficiary of that will.
22Mr. Stelter was notified of the will. Something about all of this seemed off to him and he hired a lawyer to look into the matter. The lawyer eventually got a copy of the will which was shared with Mr. Stelter. It appeared genuine even if Mr. Stelter had never heard of the beneficiary mentioned. He had already spent more money than he could comfortably afford in getting that far with the lawyer. The lawyer filed a formal request for notice with the Probate office of the court and closed his file.
23In October 2017 trouble erupted. Through a series of unlikely coincidences that even a pulp novelist might have blushed to concoct, news of the relationship between Mr. Konashewych and Ms. Balgobin made its way to the ears of Ms. CD. She confronted Mr. Konashewych and found Ms. Balgobin’s contact information and the name and address of her employer on his phone. She immediately attempted (unsuccessfully) to confront her.
24Mr. Konashewych and Ms. Balgobin quickly moved into damage-control mode. While some of Ms. Balgobin’s friends knew of her relationship with Mr. Konashewych, they knew nothing of his pending application to benefit from the estate of one of Ms. Balgobin’s clients. A scandal in the office might have broadened that circle of PGT personnel hearing of Mr. Konashewych to others, potentially including colleagues who knew of the files she was handling and the pending application of Mr. Konashewych. There can be little doubt that Ms. CD was indeed on the threshold of raising just such a scandal as she stormed into the waiting room at the PGT’s offices demanding to see Ms. Balgobin in October 2017. Mr. Konashewych managed to warn Ms. Balgobin in time to defuse the situation and prevent the confrontation from occurring.
25Ms. CD was not easily deterred and began to contact Ms. Balgobin by other means to deflect the danger she represented. Ms. Balgobin concocted a story about being an unrequited stalker of Mr. Konashewych. The two eventually persuaded Ms. CD that the story was true. In the course of this effort, a lawyer was hired to send cease and desist letters to the persons who had told Ms. CD the “false” story of the romantic affair between Mr. Balgobin and Mr. Konashewych. To allay the disquiet of Ms. CD about the prospect of a stalker on the loose, Mr. Mr. Konashewych pretended to use his police connections to procure a photograph of the alleged stalker for her. Instead, he gave her an entirely fictitious photograph of one of Ms. Balgobin’s friends.
26The ruse worked for a time. A skeptical Ms. CD allowed herself to believe and the matter was put to rest for the time being at least. Nothing of Mr. Konashewych’s pending application to be recognized as the heir to the Sommerfeld Estate came to her ears nor did any PGT colleagues who knew of her actual client work hear of Ms. Balgobin’s relationship with Mr. Konashewych. The information silos held and the fraud scheme continued on its path.
27Meanwhile, lawyers were furthering the process of applying for probate of the will on behalf of Mr. Konashewych. Lacking affidavits of execution from witnesses that their client knew did not exist, the lawyers for Mr. Konashewych started the process of assembling the file that would be needed to prove the due execution of the will. Further information from the file of the PGT appeared necessary. Owners and tenants of the addresses provided were contacted to verify no trace of the non-existent witnesses could be found.
28Letters were written to the PGT by the Estate lawyers hired by Mr. Konashewych in November 2017 and February 2018 seeking assistance. Ms. Balgobin took on the task of responding and provided detailed responses. No colleagues thought anything unusual about her doing so and were happy for the help. None of her correspondence gave any hint of her undisclosed conflict of interest on the file still less of her undoubted knowledge that the will being processed by Mr. Konashewych was in fact a fabrication. Her responses were in substance intended to mislead Mr. Konashewych’s lawyers to whom and they succeeded in doing so.
29A probate application in respect of a forged will was duly filed by the lawyers on behalf of Mr. Konashewych on April 20, 2018. The application was made on behalf of Mr. Konashewych who knew the will for which probate was being applied was a fabrication. It included his affidavit in support that was knowingly false, including relating an invented story of having used his access to police databases to conduct searches for information on the two non-existent witnesses to the will. No such searches were ever made by him.
30The probate application was still not in a position to be approved by the court. The court officials indicated that an affidavit from a person “unconnected to the applicant” would be required to verify the testator’s signature. Ms. Balgobin came forward as that “unconnected person” and swore an affidavit on June 15, 2018 in support of the application attesting to the signature of a man whom she had never met on a will she knew he had never signed. Her affidavit made mention of her connection to the PGT which appeared to satisfy in spades the court’s “unconnected” requirement but made no mention of her connection to the applicant which was the diametric opposite of unconnected.
31This last affidavit did the trick. A Certificate of Appointment of Estate Trustee was issued by the Superior Court of Justice on July 4, 2018. Over the course of the next few weeks the net proceeds of the estate held by the PGT were transferred to an account owned by Mr. Konashewych on the strength of the Certificate so obtained. The amount so transferred was $831,351.55.
32By late September 2018 the plan appeared to have succeeded. Mr. Konashewych was in possession of all of the proceeds of the Estate. Mr. Stelter had not pursued the matter further and had not been heard from. The information silos continued to hold. Neither Ms. CD nor any colleagues of Ms. Balgobin at the PGT had connected the dots that led all the way from Mr. Konashewych, Ms. Balgobin to the estate of her former client Heinz Sommerfeld.
33The crime that had been committed in secret over more than a year revealed itself in pieces.
34In November 2018, Ms. CD and Mr. Konashewych separated. Mr. Konashewych moved out of the condominium. His mail, however, continued to arrive. Ms. C.D., who had formerly let her spouse pick up the mail for both of them started to visit the mail room to pick up the mail. One day a letter arrived from a bank providing a statement on one of the Sommerfeld Estate accounts. Ms. C.D. opened the letter before noticing that it was addressed to Mr. Konashewych as executor of the estate of a man she had never heard of. This was of course a strange circumstance. She asked him about it when she gave him the letter. Mr. Konashewych brushed this off as a simple clerical error of the bank. She shrugged this occurrence off.
35Then a few weeks later, a second letter - this one from a lawyer - arrived similarly addressed. Again, Ms. CD opened it, she claimed to have done so out of inattention as an innocent error. While one may wonder whether the error was as inadvertent as she claimed, the letter came into her mailbox and it was opened by her. This second letter mentioned the same estate name but the documents inside the letter also mentioned the name of Ms. Balgobin.
36The scales instantly fell from Ms. CD’s eyes. She made the connection with the name she had been told was a stalker the prior year and saw red. An acerbic text exchange between the two soon followed. The letter was sent to her family law lawyers and the rest, as they say is history.
37Over the coming weeks her family lawyers eventually obtained the Superior Court estate file and learned enough of the truth that Ms. CD took her suspicions to police. Following an investigation, Mr. Konashewych and Ms. Balgobin were both arrested in December 2019.
38It took time for Ms. CD, her family law lawyers and eventually the police to put all the pieces together. Mr. Konashewych and Ms. Balgobin continued to do what they could to keep a lid on things and conceal the fraud. Mr. Konashewych reached out to Mr. Stelter about organizing a memorial for Mr. Sommerfeld – a man Mr. Konashewych had never met. No such memorial took place. Ms. Balgobin asked a coworker who did know of her relationship with Mr. Konashewych to lie about knowing him should he be asked. Ms. Balgobin made further false entries in PGT’s files to assist Mr. Konashewych in limiting the information that Ms. CD could gain access to.
39I was urged to find that the efforts of Mr. Konashewych and Ms. Balgobin to prevent Ms. CD from learning of the romantic relationship between Mr. Konashewych and Ms. Balgobin should be ascribed solely to the category of things people do to conceal extra-marital1 affairs.
40This case is not about extra marital affairs. The simple fact of the matter is that the maintenance of information silos by both defendants was crucial to their efforts to conceal their crime. Ms. Balgobin’s fellow employees could not be alerted to the claim by her boyfriend to be sole beneficiary of an estate she was administering. Ms. CD – who had already learned of Ms. Balgobin’s name and her employment at the PGT – could not also learn that Mr. Konashewych was claiming to be the beneficiary of an Estate of a client of the PGT still less on a file managed by her. A breach in either of these silos would bring the fraudulent edifice so carefully built tumbling down. The defendants may well have had more than one reason to keep the secrecy silos in place. However, as subsequent events dramatically demonstrated, it was the crumbling of the silo keeping Ms. CD in the dark in January 2019 that led to the police investigation and the eventual arrest and trial of both defendants. Further, the concealment efforts by both continued unabated in February 2019 months after Mr. Konashewych and CD had separated and relations between them had chilled well beyond the freezing point.
41I am satisfied that the facts recited above are relevant to the sentencing of these two offenders and were proved by the Crown beyond reasonable doubt by the body of evidence led at the trial. Some of them are of course necessary corollaries of the jury’s verdict as related in the preceding section of my reasons.
Circumstances of the offenders
42Mr. Konashewych has no prior criminal record. He was 34 years of age when arrested with 9 years service with Toronto Police Service. His record was unblemished prior to his arrest.
43Since his arrest and while suspended pending the outcome of these charges, he has lived with his parents and offered his services as a community volunteer accumulating 210 hours of community service in the past year.
44Ms. Balgobin was thirty years of age when arrested. She too had no prior criminal record. Her life story prior to the crime for which she is now being sentenced is something of the portrait of a successful hard-working immigrant. She came to Canada at age 11 as the youngest of four children. She pursued post-secondary education, graduating from the University of Toronto in 2009. Her initial exposure to the PGT came via a temp agency posting but over time she was directly hired and advanced through the ranks through internal competitions and assumed greater and greater responsibility. She was initially given a contract as an SCR in January 2017 for “Caseload 122” that included Mr. Sommerfeld among other files. That position evolved into a permanent position in April 2018. In addition to her full-time job at the PGT, Ms. Balgobin also worked part-time from March 2017.
45The romantic relationship between the two defendants did not long survive their arrest and Ms. Balgobin said that it came to an end in 2020.
46Both Mr. Konashewych and Mr. Balgobin presented me with an extensive and impressive portfolio of support letters from friends, family and other members of the community. The common theme in all of them is the otherwise blemish-free life of the offender, the writer’s shock, sorrow and surprise at learning of the offences and the verdict and their optimism in the fundamentally sound and generous nature of the offender’s character. I have no reason to doubt the sincerity of any of these. Unfortunately this is a category of crime where offenders often present in just such a manner and it is their very respectability and unimpeachable character that is exploited to perpetrate the fraud or keep it from being discovered.
47It has been urged upon me by both defendants for slightly different reasons to account for the degree of “punishment” each has received from (i) the glare of publicity which has already damaged their reputations and will impede their future career prospects, and (ii) the loss of employment. I shall review these factors shortly but note that my ability to attach much weight to either is constrained to some degree by s. 380.1(2) of the Criminal Code and the very significant weight of the constellation of aggravating circumstances present here.
Position of the parties
(b) Position of the Crown
48Mr. Scrutton for the Crown submitted that both defendants should receive an equivalent sentence which should be in the range of 8-9 years coupled with a restitution order in the amount of the fraud proceeds paid out and a forfeiture order for the proceeds of the crime which remain in the possession of Mr. Konashewych. The Crown’s position is that general deterrence is a paramount sentencing principle for a crime which involves the aggravating factors that are present in this case. A severe if not exemplary sentence is required to achieve the required goals of proportionality, denunciation and deterrence.
49The Crown acknowledged that Ms. Balgobin’s breach of trust was more significant, as recognized by her independent conviction for that offence, however Mr. Konashewych alone received the funds. On balance, the Crown urged me to sentence both offenders to the same sentence in recognition of their close collaboration in the execution of this crime, the significant public trust both enjoyed in their respective positions and their equivalent degree of moral culpability.
50In terms of ancillary orders, the Crown seeks a restitution order under s. 738(1)(a) of the Criminal Code in the amount of $834,351.55 being the amount that it was agreed was received by Mr. Konashewych from the Estate. The Crown also seeks a forfeiture order under s. 462.37(1) of the Criminal Code in the same amount to be applied to the property of Mr. Konashewych that has been under a restraint order of this Court since December 12, 2019.
51The funds in question had been deposited into an investment account of Mr. Konashewych which contained other funds before the transfer was received. A consent order signed by me following the sentencing submissions of the parties on October 13, 2023 directed CIBC Wood Gundy (the operator of the account) to liquidate the investments in that account to produce the requisite sum which shall be subject to the forfeiture order with the balance being remitted to Mr. Konashewych.
52It is expected by the Crown that the restitution orders sought will eventually become superfluous as and when the forfeiture order becomes final and is not stayed pending any appeal. There is no risk of “double recovery” arising from the orders sought as an aggregate sum of $834,351.35 is all that will be collected or collectible under these orders.
(c) Position of Mr. Konashewych
53Ms. Ahumada submitted that a sentence for Mr. Konashewych of two years less a day to be served in the community would be a fit and proper sentence in light of the mitigating circumstances present and the collateral consequences upon him arising from job loss and loss of reputation have already had a significant denunciatory effect.
54While acknowledging that police officers convicted of crimes generally receive a more severe sentence than another first-time offender, Ms. Ahumada said that as a relatively young first-time offender with a strong pro-social network, he poses a low risk to the community and denied that his role as a police officer played any role in the commission of the offence. The harm to the victim in this case is attenuated by the fact that this is one of the rare cases where the fraud did not result in actual loss.
55She said that the sentences for both offenders should be considered separately in that, for example, Mr. Konashewych was not alleged to have committed a breach of trust in connection with her office whereas Ms. Balgobin was convicted of that offence.
(d) Position of Ms. Balgobin
56Ms. Greenspan suggested that Ms. Balgobin ought to bear less responsibility for her crimes by reason of having been “directed” by Mr. Konashewych. She urged me to account for the manner in which she has already been punished by events including (i) the harsh glare of media publicity unduly focused on sensational sexual allegations which has painted her unfairly and (ii) by the loss of her job and career which she shall have to pick up from scratch upon emergence from this process. The requested restitution order was described by her as otiose in light of the full recovery that the Estate will receive of the funds all of which were received by Mr. Konashewych.
57Noting that this case does not properly fit in the range of large-scale sophisticated frauds, Ms. Greenspan urged me to impose a “strict conditional sentence” which might be coupled with a period of probation which will adequately deter and denounce Ms. Balgobin’s conduct thereby satisfying the applicable sentencing principles.
Victim Impact Statement
58Mr. Peter Stelter provided a victim impact statement that confirmed aspects of the impact of this crime upon him that were also adverted to, with lesser detail, during his testimony at trial. He feels anger about how his brother’s death was manipulated for financial benefit. While he never expected an inheritance from his brother, news of his death came at a time when Mr. Stelter was undergoing severe financial stress that ultimately led to the loss of the Haliburton home in which he had been living and changed the whole trajectory of his life thereafter. News of his brother’s inheritance, had it not been interfered with, might have prevented that loss. A small Florida home that was lost in 2022 might also have been saved. The inheritance would have provided him with the ability to assist his grandchildren at a time when his assistance could have been most valuable. The opportunity to help them in their further education was also lost.
59He concluded his short statement as follows:
I have four children and nine grandchildren and helping them, especially with the cost of higher education, is of great importance to me. I would have been able to do more for [my] family. You stole this from me when you defrauded me.
Mitigating circumstances
60Both defendants appear before the court without any prior criminal record. They are thus both to be considered as first time offenders.
61Section 380.1(2) of the Criminal Code precludes a consideration the offender’s employment, status or reputation in the community as mitigating circumstances if those factors were relevant to the commission of the crime. The employment of Mr. Konashewych as a police officer and Ms. Balgobin as an SCR with the PGT as well as their status and reputation in the community all clearly played a role, indeed a significant role, in the commission of this crime and the efforts to keep it secret.
62Unaware of her glaring conflict of interest, none of Ms. Balgobin’s co-workers saw anything untoward in her taking on the task of contacting potential next of kin, receiving and responding to inquiries from the lawyers hired by Mr. Konashewych who themselves were unaware of what they were being used to do nor did anyone have any reason to look behind the false or misleading entries Ms. Balgobin made in PGT records to attach a veneer of normalcy to what was a planned and fraudulent scheme.
63Mr. Konashewych similarly made use of his status as an experienced police officer to lull his spouse into a false conclusion by providing her with a photograph of an innocent co-worker of Ms. Balgobin passed off as the potentially disturbed woman who was stalking him. He made use of those same attributes to make his application for probate appear as beyond reproach as could be to facilitate its passage through the processing at the Brampton Superior Court Estates Office and to intimidate Ms. CD who hesitated for a time to report what she knew to other police officers, fearful of what she imagined the consequence of doing so might be.
64The professional attributes of both defendants featured in the probate application to the Superior Court which ultimately resulted in the funds being released.
65A successful fraud often relies on the very attributes of reputation in the community and status for its success and secrecy. These attributes can be used to encourage people not to inquire more closely into what is being done in plain sight. That is precisely what happened here.
66A corollary of this, in my view, is that the loss of reputation, the loss of employment and the loss of status that flows from discovery and punishment of the fraud that these same attributes contributed to cannot be considered as factors in mitigation sufficient in weight to offset to a material degree the very serious aggravating circumstances present here. Parliament has decreed in s. 380.1(2) of the Criminal Code what common sense dictates.
Aggravating Circumstances
67I find that the following aggravating circumstances upon sentencing are applicable here and each are proved beyond reasonable doubt:
(i) “magnitude, complexity, duration or degree of planning of the fraud was significant (s. 380.1(1)(a))
68This was a complex, highly planned and long-lasting fraud operation. From its first steps in June 2017 soon after Mr. Sommerfeld’s death, this was a complex and planned process. A convincing-looking precedent for a will was obtained. Exemplars of Mr. Sommerfeld’s signature were obtained and a convincing forgery of it was performed or obtained. Fictitious witnesses were created and their signatures invented. Lawyers were engaged to assemble and process the probate application. Improvised strategies were adopted to deal with risks of exposure of the scheme. These strategies involved elaborate charades that created stress and disruption to Ms. CD, Mr. Stelter, David Tripp, Martha O’Brien and Manpreet Dhillon. Those cover-up efforts began before receipt of the money and continued through as late as February and March 2019 when the cat was already spilling out of the bag to a degree that the defendants could not fully know but tried to contain.
69There was no shortage of opportunities to turn back and call it off along the way. Neither defendant had enough remorse about their actions to seize one of those opportunities.
70While the amount involved was somewhat less than the $1 million threshold mentioned as an aggravating circumstance in s. 380.1(1.1), it was a very significant sum nonetheless representing the entire net value of Mr. Sommerfeld’s estate and represented a very important sum to the victim of this crime, Mr. Stelter.
71This aggravating circumstance is equally applicable to both defendants.
(ii) “Significant impact on the victims given their personal circumstances, including their age, health and personal circumstances” (s. 380.1(1)(c.1)) and s. 718.2(a)(iii.1)
72The victim of this fraud, directly or indirectly, was Mr. Peter Stelter and his family. The prospect of an inheritance could have made an enormous difference in Mr. Stelter’s life that had been financially precarious since his loss of employment in 2008. Instead, Mr. Stelter had to sell the former cottage he had turned into his full-time residence. Later he had to sell a Florida condominium they had as well. He was unable to support the further education of his grandchildren at a time when it could have been most important to them.
73All of these and similar opportunities that are so important in the trajectory of a life were stolen from Mr. Stelter in ways that the eventual receipt of the estate funds at the conclusion of years of legal proceedings that he had no hand in creating or prolonging can not replace. Mr. Stelter is now as old as his brother when he died and his remaining years are unknowable. Money may be fungible, but it is clear that many unique opportunities to have bettered Mr. Stelter’s life and that of his grandchildren were lost and lost forever. The recovery of the funds is important but the irreparable aspects of this and other crimes can never be reduced to so inadequate a measure as dollars and cents. This crime had a very significant negative impact upon the victims.
74This aggravating circumstance is equally applicable to both.
(iii) In committing the offence, the offender took advantage of the high regard in which the offender was held in the community: s. 380.1(1)(d)
75There can be no question that this factor applies to Mr. Konashewych. To cite the clearest example of this, the probate application filed on his behalf included references to his status as a police officer and his efforts, using police resources not available to the general public, to locate the missing (and fictitious) witnesses to the will he sought probate of. The scheme of seeking probate of a forged will made use of the veneer of respectability that his standing as a police officer necessarily imparted to the entire probate process in the eyes of every participant who was made aware of that status.
76On a more general note, the Court of Appeal in R. v. Schertzer, 2015 ONCA 259 emphasized that public confidence in the honesty of the police is so fundamental to the criminal justice system that police officers, sworn to uphold the law, should expect their sentence to be more severe than that of an ordinary person who commits the same crime (at para. 131-133).
77Ms. Balgobin used her status as a PGT employee to call Mr. Stelter as soon as she learned that a colleague had sent him a letter. Under the guise of a routine call of an authorized Ministry employee, she was able to receive from him information that was of assistance in the scheme which at that point had not proceeded much beyond preliminary conception. Her communications with Mr. Konashewych’s lawyers to assist in the probate process also took advantage of that status and helped maintain the veneer of normalcy both of them wanted to attach to this matter. This factor was most clearly engaged by her affidavit of June 15, 2018 which was the last straw in unblocking administrative approval of the probate application at the Brampton Superior Court office. She knew that an affidavit of a person unconnected to the probate application was sought. She knew full well that she was not such a person and provided the affidavit requested which painted her as a disinterested PGT official.
78This aggravating factor is equally applicable to both.
(iv) 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: s. 380.1(1)(e) and s. 718.2(a)(iii)
79Ms. Balgobin was subject to strict conflict of interest guidelines as part of the conditions of her employment within the Ministry of the Attorney General. Apart entirely from her knowledge of and participation in the fraud, Ms. Balgobin was bound to report the conflict arising from her relationship with Mr. Konashewych from the moment “Bob Kay” announced his possession of a will pertaining to a PGT client. She knew she was obliged to do so and deliberately chose not to comply. Her stated reasons for non-compliance are as implausible as they are and were irrelevant. Even were she unaware of the fraud (and the jury has found that she was) she clearly violated her duty to disclose that conflict and await instructions or guidance from her superiors in accordance with the policy. Her colleagues had every expectation – and every right to expect – that she had no interest at all in the Sommerfeld estate file. Whether the crime would have been detected and stopped had she complied cannot be stated for a certainty, but her non-compliance de-risked the enterprise materially. Her non-compliance advanced the criminal enterprise she was convicted of assisting.
80More broadly, her actions were undertaken while she had responsibilities to Mr. Sommerfeld whose care and property had been confided in the PGT as a trust while he lived and until the trust was fully discharged thereafter. That trust relationship and the obligations of utmost good faith that attend such a relationship applied to the PGT generally and to Ms. Balgobin as the SCR assigned to Mr. Sommerfeld’s file for most of the relevant time frame. The willing and active participation in a scheme to defraud the estate and its lawful beneficiary of everything it had is as far the antithesis of her duties of utmost good faith as can be imagined.
81This aggravating factor is applicable to Ms. Balgobin alone.
(v) The offender concealed or destroyed records related to the fraud
82Ms. Balgobin made numerous entries to the “PG Ted” electronic file system that were designed to assist in covering up the on-going fraud. These began on June 26 with her fraudulent entries about the call from “Bob Kay” which was either entirely fictitious or composed in such a way as to be deliberately misleading by omitting facts she had a duty to disclose. The same observations apply to the two letters she wrote to the lawyers for Mr. Konashewych and placed in PGT’s files in November 2017 and February 2018 as well as the February 2019 entries designed to obstruct as far as possible any investigations being made by Ms. CD or her lawyer. Her efforts to persuade a fellow worker to lie to protect her – while ultimately unsuccessful - can be considered in a similar light or as a stand-alone aggravating circumstance.
83This aggravating factor is applicable to Ms. Balgobin alone.
(vi) Additional non-statutory aggravating circumstances
84The Crown urged me to find that the actions of both defendants severely damaged the reputations of the PGT and Toronto Police Service. There can be no question that this is true. It would be hard to imagine two institutions in which the public faith is more critical. The PGT looks after the care and property of the most vulnerable members of society. The Toronto Police Service is responsible for maintaining and enforcing the rule of law in our community. These crimes necessarily undermine public confidence in two critically important public institutions.
85In addition, both offenders played an active role in deceiving the Superior Court of Justice which ultimately processed the probate application.
86These aggravating features apply equally to both.
87The motives of the two defendants before me cannot be stated for a certainty. There is no evidence that Ms. Balgobin directly received any of the proceeds of the crime. There is evidence that she was looking to solidify her relationship with Mr. Konashewych and was disappointed in the speed with which that was occurring. Mr. Konashewych did receive all of the proceeds of the crime. As it turned out, the proceeds of this crime were commingled with his own investments in an account whose balance was sufficient to repay the Estate all the funds originally received. This fortunate outcome (which does not account for the time value of money) was by accident and not design. There is no suggestion that Mr. Konashewych was financially stressed. The only motive that can be ascribed to his actions is greed.
Application of sentencing principles
88Given the extensive range of very grave aggravating circumstances contrasted with the relative paucity of mitigating circumstances, it is clear that general deterrence and denunciation must be given a very substantial weight here.
89Ms. Greenspan urged me to make findings that Ms. Balgobin’s degree of culpability must be considered as attenuated by the nature of her relationship with Mr. Konashewych who it was alleged “directed” her in the commission of this crime. I cannot agree with any such submissions. Nothing in the evidence persuades me that Ms. Balgobin was manipulated or dominated in some way by Mr. Konashewych in such a way as to attenuate her degree of responsibility. Her evidence of utter ignorance of the crime being committed in 2017 and 2018 was not believed by a jury who in convicting her found that she intentionally aided her co-defendant in committing the crime with knowledge of the crime she was helping him commit. I see no basis to attenuate her responsibility for this.
90On the other hand, I do concur with counsel for both defendants that the strong pro-social network that surrounds them - while not up to the task of deterring the commission of this crime - will very likely serve both well in their rehabilitation. That and the fact that neither is likely to occupy a significant position of trust in the future suggests to me that the risk of re-offending on the part of both defendants before me is very low.
91I concur with the Crown that the degree of responsibility of both offenders and the aggravating circumstances applicable to each of them are in a reasonable state of balance such that an equivalent sentence for each should be meted out. Mr. Konashewych was a police officer and received all of the funds; Ms. Balgobin received none of the proceeds but her breaches of trust were as grave as they were essential to the formulation and execution of this fraudulent scheme. The degree of harm inflicted upon the victim, society and public faith in the honesty and integrity of two important institutions can be laid at the feet of both in equal measure. The two must be considered separately it is true, but the predominant weight that I must attribute to the common features of this crime viewed from the perspective of each is such that an identical or nearly identical sentence should come as no surprise.
92The findings I have made regarding the role that status and reputation in the community played in the commission of these crimes are such that s. 380.1(2) of the Criminal Code limits my capacity to attach significant mitigating weight to the collateral consequences of conviction upon each defendant arising from loss of status and reputation. There are three other related considerations that also constrain the impact of these considerations on sentence.
93First, publicity in the broad sense should not be over-stated. While the statement that the “internet is forever” may be true, the general public will not long remember the names of these two offenders. It is quite unlikely that these two offenders will ever be in a position to occupy positions of public trust in the future, let alone positions with the responsibility and trust that their prior lives afforded them. Their lives will change not because of the sentence they will receive here but because of what they have done. Nobody emerges from a criminal conviction with an enhanced reputation. The almost inevitable loss of employment and reputation arising from the nature of this crime once uncovered cannot displace the need for a sentence that gives adequate weight to denunciation and deterrence and is proportionate to the gravity of the offence.
94Second, the important goal of general deterrence is advanced by the impressions left with others including those occupying public offices of trust similar to or the same as these offenders. The glare of publicity, even if short lived, is one of the ways the goal of general deterrence works. Both defendants sought and were employed in positions invested with significant amounts of public trust. From those to whom much is given, much is expected. Any person occupying a similar position should know that succumbing to the temptation of committing crimes such as this will very likely result in an exemplary and harsh sentence. Reinforcing that message is precisely the object of general deterrence. Diluting it due to the ordinary and natural consequences of exposure of the crime defeats the purpose.
95Third, should the community gain the impression that such crimes are treated leniently, then the trust of society at large in the institutions that these two offenders have tarnished will be forever lessened to our collective loss. The public will remember whether the sentence meted out to them appeared justly severe or unduly lenient and the trust in which the public holds our essential public institutions generally will be diminished should the wrong impression be conveyed.
96In summary, the collateral consequences upon both offenders must certainly be taken into account in fashioning an individual sentence but they cannot in the circumstances of this case result in an unfit sentence that fails adequately to address the need for denunciation, general deterrence or recognize the gravity of the crime and the degree of responsibility of the offender.
97In my view, the gravity of the crime in this case and the degree of moral culpability of both defendants is very high. The public’s expectation of honesty in police officers and persons exercising a position of public trust in respect of the most vulnerable members of society is understandably high and the harm to public confidence in two critically important components of our social fabric is equally high. We must never allow a culture of tolerance of corruption to invade our public institutions. A fit and proper sentence must ensure that public confidence in the integrity of these institutions is given appropriate and significant weight in order to protect them and the society that depends upon them.
98Recognizing the individual nature of the sentencing process, it is nevertheless useful to undertake a survey of the jurisprudence to gain an understanding of the range of sentences meted out in similar circumstances which itself is a recognition of the parity principle in s. 718.2(b) of the Criminal Code.
99The parties’ submissions on the proper range applicable to these crimes largely focused on whether this case can be considered to fall in the category of large scale sophisticated or commercial fraud. This case has aspects that fit more than one category. The amount of money involved, viewed in isolation, is significant but not in an amount generally considered as “large scale” even if the duration and sophistication of this particular crime is relatively high. In R. v. Dhanaswar, [2014] O.J. No. 6388 (S.C.J.) at para. 23, aff’d 2016 ONCA 172 the amount involved was over $2 million. In Dhanaswar the sentence category of “large scale” was described as important to recognize the importance of preventing the undermining of public confidence in the financial sector (see para. 15 of the decision of Dambrot J.). The Court of Appeal did not interfere with a six year sentence in that case.
100In R. v. Davatgar-Jafarpour, 2019 ONCA 353, the Court of Appeal overturned a two-year sentence imposed as demonstrably unfit because it departed from the range of 3-5 years the court said applied to such large-scale fraud. The fraud in that case involved diverting between $2 – 2.5 million from a non-profit organization.
101In the commercial sphere, R. v. Drabinsky, 2011 ONCA 582, the Court of Appeal held that “while one might quibble about both ends” of the 5-8 year range suggested by the sentencing judge for premeditated large scale fraud involving public companies, the idea that such offences must “normally attract significant penitentiary terms” was endorsed (at para. 101).
102Denunciation and deterrence attain a larger weight in cases of large-scale sophisticated fraud because of the corrosive effect on public confidence in important institutions such as financial services in which people confide their life savings. The corrosive impact of the crime before me is as significant and dangerous to society (if not more so) as the large-scale sophisticated frauds under consideration in Dhaneswar or similar cases even if the amounts are somewhat more modest.
103R. v. Tickell, 2010 BCCA 303 is a somewhat closer case to the present one in that it involved an employee of the British Columbia Public Guardian who defrauded clients of the Public Guardian of over $1.2 million through a forged will and through transferring to himself some land for $1 which he sold for almost $1 million in net proceeds in the final days of his employment after being given notice of a lay off. Mr. Tickell pled guilty and a substantial portion of the proceeds were recovered. The six-year sentence imposed in that case was upheld. The sentencing judge’s reasons attached considerable importance to the harm done to the Public Guardian, characterizing Mr. Tickell as not the “worst offender…but certainly one of the worst”. Mr. Tickell was similar in age to the defendants here with a similarly clear prior record.
104No two cases are ever the same and that seems to be more so in this case than most. The mitigating factors present here are muted while the severity of the crime, the responsibility of the offenders and the very severe aggravating features present bring me to conclude that Mr. Konashewych and Ms. Balgobin are perhaps not “worst offender” but they are “certainly one of the worst”. These two have done considerable harm to the pubic trust in bedrock public institutions every bit as grave and corrosive to society as larger scale frauds if measured solely in dollar terms. Financial frauds often involve divesting members of the public of their life savings. This crime stole from the estate of a helpless, vulnerable ward of the state his entire life savings. While not in seven figures, the amount involved was close to it. Of the cases I have reviewed, Tickell is far and away the most analogous but contains the mitigating circumstance of a guilty plea that is absent here.
105The prior good character and standing in the community of these two offenders is to some degree “the tools by which they commit and sustain frauds” (Drabinsky, at para. 167) and can attract little sentencing weight.
106The fact that the Crown was able to restrain the proceeds of this crime such that the funds are available for forfeiture is a far cry from a mitigating circumstance. Mr. Konashewych has not volunteered to return the funds before now or indeed at all. Forfeiture in these circumstances was always inevitable – the manner in which this occurs has been arranged to cause him the least damage while assisting the victim. His consent results in a transaction benefiting both sides but it is a neutral sentencing fact. Even post-forfeiture, the Estate may yet have years to wait depending on his appeal decisions. The Estate and its beneficiary Mr. Stelter have already been deprived of funds that could have made a difference to his life for six years and he is not getting any younger. The lack of an aggravating circumstance cannot be equated to a mitigating one. This is the former.
107Balancing all of the circumstances I find that a seven-year sentence in the case of Mr. Konashewych is a fit and proper sentence. He does not have the benefit of the guilty plea present in Tickell. The nature of this crime cries out for an exemplary sentence that recognizes the severe harm inflicted upon public confidence in important institutions including the Toronto Police Service. While he was not an employee of the PGT, the corrupt actions of a responsible employee of the PTG was an essential element of the crime he committed which depended for its (temporary) success in very significant measure upon Ms. Balgobin’s inside assistance.
108For the reasons mentioned earlier, I find that Ms. Balgobin’s crimes merit the same treatment. Although in some respects her crimes were more serious – particularly as regards her grave breach of trust duties owed to some of society’s most vulnerable – her participation was in other ways less so in light of the fact that she did not directly receive proceeds. Her circumstances, degree of moral culpability, direct and continuing role in the crime and the dramatic harm she has inflicted on the PGT require an exemplary sentence as well, proportional to her responsibility and the harm done.
109I sentence her to seven years as well on the fraud count. Her breach of trust conviction carries a five-year maximum. She shall receive a five year sentence for that crime to be served concurrently with her seven year sentence.
110I was also asked to abstain from making a restitution order against Ms. Balgobin because of the prospect of full recovery to the Estate by the forfeiture order against Mr. Konashewych. It is expected by the Crown that the restitution orders sought will eventually become superfluous as and when the forfeiture order becomes final and is not stayed pending any appeal. That state of affairs may or may not obtain in the future. There is no risk of “double recovery” arising from the orders sought as an aggregate sum of $834,351.35 is all that will be able to be collected under these orders. The restitution remedy is not superfluous unless and until all of the funds taken from the Estate are returned to it. There is nothing duplicative or unreasonable about ensuring that either avenue of recovery is available to the Estate if necessary. It is expected that the restitution order will prove to be “belts and suspenders” at the end of the day but it will not be so until future events prove it so.
Disposition
111For the foregoing reasons I sentence Mr. Robert Konashewych as follows:
a. For count one (fraud over $5,000 contrary to s. 380(1)(a) Criminal Code): seven years;
b. A restitution order pursuant to s. 738(1)(a) of the Criminal Code in the amount of $831,351.55 in favour of the victim Estate of Heinz S. Sommerfeld; and
c. A forfeiture of $831,351.55 in monies or investments from the account of CIBC Wood Gundy subject to the restraint order dated December 12, 2019 as modified by me on October 13, 2023.
112It is my understanding that a consent form of forfeiture order containing the relevant account number and other necessary details will be prepared for my signature at the time these reasons are handed down on December 5, 2020.
113For the foregoing reasons I sentence Ms. Adellene Balgobin as follows:
a. For count one (fraud over $5,000 contrary to s. 380(1)(a) Criminal Code): seven years
b. For count two (breach of trust in the execution of her duties contrary to s.122 Criminal Code): five years concurrent to count 1 above; and
c. A restitution order pursuant to s. 738(1)(a) of the Criminal Code in the amount of $831,351.55 in favour of the victim Estate of Heinz S. Sommerfeld.
114I am not aware of any pre-sentence custody served by either defendant. I shall make the appropriate inquiries and allow for any pre-sentence custody credit when delivering this sentence in open court.
S.F. Dunphy J.
Date: December 5, 2023