COURT FILE NO.: CRIM J(P) 124/23 DATE: 2024-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Tara Mrejen, for the Crown
- and -
SHAWN CAMPBELL W. John McCulligh, for Mr. Campbell
HEARD: September 14, 2023, February 6, May 17, May 29, 2024
REASONS FOR SENTENCE Stribopoulos J.
Introduction
[1] Mr. Campbell pleaded guilty to one count of fraud over $5,000, contrary to section 380(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] Mr. Campbell was a lawyer; many of the victims of his fraud were his clients, including seven estates and a family law client. With each, Mr. Campbell received money in trust on their behalf, including proceeds from the sale of real estate, and then misappropriated these funds. Mr. Campbell provided false explanations to some of these clients when they inquired about delays in receiving their money. Beyond his clients, the victims included those individuals and charitable organizations entitled to bequests from the affected estates.
[3] Mr. Campbell defrauded the victims of substantial sums; with most he took hundreds of thousands of dollars. The total amount he misappropriated was slightly over $3.2 million.
[4] Mr. Campbell entered a guilty plea on the eve of his scheduled trial after unsuccessfully seeking a stay of the proceedings due to an alleged breach of his section 11(b) Charter right to a trial within a reasonable time.
[5] These are the court's reasons for sentencing Mr. Campbell for his offence.
Circumstances of the Offence
[6] Although Mr. Campbell only pleaded guilty to a single count of fraud over $5,000, he acknowledged engaging in conduct that spanned several years, involved repeated acts of dishonesty, and victimized numerous individuals to whom he owed a fiduciary duty.
The Estate of Margaret Beckthold
[7] Joyce De Lisle and Richard De Lisle, Ms. Beckthold's executors, retained Mr. Campbell to manage her estate.
[8] In March 2015, Mr. Campbell received a cheque for $869,964.19 in trust from a credit union on behalf of Ms. Beckthold's estate.
[9] Mr. Campbell failed to use those funds to satisfy the estate's financial obligations. Further, he never paid the bequests Ms. Beckthold made to the three charitable organizations she named as beneficiaries in her will: The Hospital for Sick Children Foundation, Holland Christian Homes Inc., and the Heart and Stroke Foundation of Ontario.
[10] Instead, Mr. Campbell misappropriated the entire amount of Ms. Beckthold's estate: $869,964.19.
Roxanne Myshchyshyn
[11] Ms. Myshchyshyn retained Mr. Campbell to represent her in a family law matter. In that role, he handled the sale of her matrimonial home.
[12] In early December 2015, Mr. Campbell received $395,000 in trust from the sale of the home. Although Mr. Campbell distributed some of the money to Ms. Myshchyshyn, he misappropriated $182,000 of the proceeds.
[13] Mr. Campbell never provided Ms. Myshchyshyn with a statement accounting for the funds received and disbursed from the proceeds.
The Estate of Robert Hay
[14] Mr. Hay passed away in October 2016. Following his death, his daughter, Janice Vanin, the executor of his estate, retained Mr. Campbell to sell her father's home and manage his estate.
[15] Mr. Campbell received $554,683.50 from the sale of Mr. Hay's home and $171,381.71 on account of other estate assets. However, he never distributed the funds collected to those entitled to a share of the estate. Instead, he misappropriated the money, $726,065.21.
[16] When Ms. Vanin inquired about the delay in distributing the funds, Mr. Campbell told her it would take a long time as they had to wait for the taxes to be processed. Later, she was advised that Mr. Campbell was ill and would be closing his practice.
[17] Mr. Campbell never provided Ms. Vanin with a statement accounting for the funds he received on behalf of the estate.
The Estate of Lawrence Joseph Brudz
[18] Mr. Brudz's daughter, Barbara Ferguson, retained Mr. Campbell to handle the sale of her father's home and administer his estate—the house sold in November 2016.
[19] Mr. Campbell received $284,362.12 from the home's sale, representing what remained of the proceeds after paying various taxes and a mortgage. Although Mr. Campbell made an authorized distribution of $34,181, he has never accounted for the balance of $250,181.12, which he misappropriated.
The Estate of Barbara Joan Crawford
[20] In 2017, Ms. Crawford's daughter, Christine Miller, retained Mr. Campbell to manage her mother's estate. At the time, she gave him $540,000, the proceeds from selling her mother's home.
[21] Although Mr. Campbell paid Ms. Miller $15,000 from the funds held in trust to cover the cost of repairs she had made to the residence before its sale, he misappropriated the balance of the estate's proceeds, $525,000.
[22] When Ms. Miller inquired about the delay, Mr. Campbell told her it would take a long time because he could only distribute the estate's funds after he received a tax clearance certificate.
The Estate of John Frederick Phillips
[23] In February 2017, Patricia Delutis, Mr. Phillips's estate executor, retained Mr. Campbell. She hired him because of some health issues she was experiencing and thought that, as a result, she would need some assistance. Before that, she had managed the estate's affairs alone.
[24] After retaining Mr. Campbell, Ms. Delutis transferred $25,000.00 to him. Although he used some of that money to pay the estate's expenses, a little more than $24,000 should have remained, but he never accounted for it. Mr. Campbell misappropriated that sum from Mr. Phillip's estate.
[25] Ms. Delutis attempted to contact Mr. Campbell concerning the money he was to hold in trust for the estate. However, her efforts proved unsuccessful.
The Estate of Robert David Bradley
[26] After Mr. Bradley passed away in January 2017, Nancy Hynes, his daughter and estate executor, retained Mr. Campbell to administer his estate.
[27] Mr. Campbell received $384,485.37, the proceeds from a bank account and investment account that had belonged to Mr. Bradley. Although he was to hold these funds in trust and distribute them to those entitled to an interest in the estate, Mr. Campbell never did so. Instead, he misappropriated the money.
[28] When Ms. Hynes contacted his office to inquire about her father's estate, she was told Mr. Campbell was terminally ill and closing his practice.
[29] Ms. Hynes never received a statement accounting for the funds Mr. Campbell received on behalf of the estate.
The Estate of Robert Ridgway
[30] Mr. Ridgway passed away in December 2017. His daughter and estate executor, Jody Bayes, retained Mr. Campbell to assist in selling his home and administering his estate.
[31] Mr. Campbell received $578,375 from the sale of Mr. Ridgway's home. He also received a cheque from the Canada Revenue Agency payable to the estate for $2,179.02, which he deposited into his trust account.
[32] Mr. Campbell issued three cheques to the beneficiaries from the money he received on behalf of Mr. Ridgway's estate. One of them, payable to Jay Ridgway for $193,970.97, was returned due to insufficient funds in Mr. Campbell's trust account. Although Mr. Campbell indicated he would reissue the cheque, he never did so.
[33] Additionally, Mr. Campbell took 2.5% of the estate as his fee, $33,032.59, without Ms. Bayes' authorization.
[34] As a result, Mr. Campbell misappropriated $229,182.58 from Mr. Ridgway's estate.
The Law Society of Ontario's Investigation
[35] Commencing in December 2018, the Law Society of Ontario began receiving complaints about Mr. Campbell. In March 2019, the Law Society's Trustee Services Department obtained a trusteeship over Mr. Campbell's practice-related property and seized his trust accounts and any client files it could find. They did not locate client trust ledgers, client listings, or reconciliations and comparisons.
[36] Law Society investigators eventually determined that Mr. Campbell transferred $3,230,136.73 from his mixed trust account without authorization from the clients whose money he was to hold in trust.
[37] The Law Society conducted a forensic analysis of Mr. Campbell's trust account, two business accounts and five personal accounts (three credit cards and two bank accounts, including a joint bank account with his spouse). The analysis revealed that Mr. Campbell transferred $1,429,657 from his trust account to his personal accounts ($358,350 to his bank account, $517,608 to a joint account with his spouse, and $553,699 to his credit cards). Additionally, he transferred $784,155 from his trust account to his business account and paid some of these funds to his law clerk and family members.
[38] Mr. Campbell did not cooperate with the Law Society of Ontario's investigation. The Law Society Tribunal ultimately revoked his license to practice law: see Law Society of Ontario v. Campbell, 2021 ONLSTH 112.
Impact on the Victims
[39] The Law Society of Ontario's Compensation Fund ("the Fund") eventually compensated Mr. Campbell's victims. The Fund compensates those who have lost money due to a lawyer's or paralegal's dishonesty in their practice. It is financed by the annual fees paid by lawyers and paralegals in Ontario.
[40] The Fund paid $3,130,559.93 to nine estates, ten individuals, and three charities that suffered losses due to Mr. Campbell's fraud. In exchange for the compensation, the victims assigned their interest in any corresponding claims against Mr. Campbell to the Fund.
[41] Victim impact statements were prepared and filed by many of Mr. Campbell's victims, and some of them elected to read their statements at the sentencing hearing. Mr. Campbell's crime has profoundly impacted his victims in several ways.
[42] First, Mr. Campbell's fraud had a significant financial impact on his victims. Although the Fund ultimately compensated most of the victims for what he misappropriated from them, with some, the amounts paid did not cover their entire loss. For example, two individual victims did not recoup the entirety of what they lost because of the fraud. Additionally, the three charities that should have each received $261,000 from Ms. Beckthold's estate ultimately only received $150,000 each from the Fund.
[43] Although compensation from the Fund eventually came, the victims were without the funds they were entitled to for several years longer than they would have had Mr. Campbell fulfilled his professional obligations. A couple of his victims found themselves in precarious financial circumstances because of the delay. Additionally, while they waited, the victims lost the opportunity to invest what they were entitled to receive and obtain any return on their money.
[44] Second, the fraud committed by Mr. Campbell had a detrimental impact on the health of many of his victims. Most of them sought his services when they were vulnerable, such as while grieving the loss of a loved one or navigating the challenges of a marital breakdown. The entire process – from the time they discovered they were victims of fraud by the lawyer they had hired and trusted to the prolonged uncertainty while awaiting potential compensation – took a heavy toll on them. Mr. Campbell's victims endured considerable stress and anxiety due to his actions. For many, the impact on their mental well-being also resulted in physical consequences, such as sleep loss and decreased appetite. One of Mr. Campbell's victims even attributes a flare-up in lupus to the stress caused by the ordeal.
[45] Third, for some victims, their relationships with spouses and siblings suffered. In one instance, a beneficiary blamed their sibling, the executor of a parent's estate, for hiring Mr. Campbell, leading to conflict and their becoming estranged.
[46] Lastly, Mr. Campbell's crime has caused some of his victims to become wary of trusting lawyers in the future, which is a significant consequence for them and the legal profession.
Circumstances of the Offender
[47] Mr. Campbell is now 68 years old. Although born in Vancouver, he grew up in Etobicoke, where his family moved when he was relatively young. He is the oldest of two siblings. His mother stayed home to attend to the family's needs, while his father enjoyed employment that earned him a substantial income. The family had a relatively affluent lifestyle, and Mr. Campbell describes having a positive upbringing.
[48] After high school, Mr. Campbell attended university and obtained his undergraduate degree. He then attended law school and was called to the Ontario Bar in 1983. Mr. Campbell worked as a sole practitioner in Brampton and focused his practice on family law and, to a lesser extent, real estate and wills, estates, and trusts. As noted, the Law Society Tribunal revoked his license to practice law in 2021.
[49] Mr. Campbell and his wife have been married for 36 years. They started dating at the age of 16 and have been together since. They have three adult children with whom Mr. Campbell has a good relationship. Despite working long hours when his children were growing up, Mr. Campbell still managed to be a very engaged father, particularly with his eldest child, who required extra attention because he has special needs.
[50] Despite balancing a busy law practice and family life, Mr. Campbell still found the time to make significant contributions to the legal and larger community. He was a member of the Area Committee for Peel for Legal Aid Ontario and served as a Big Brother with the Big Brothers of Peel for nine years. As a young lawyer, he also helped establish the Brampton branch of the Optimists Club and remained active with that organization for many years.
[51] Mr. Campbell does not report any issues with addiction, be it alcohol, drugs or gambling. Nor does he report any mental or emotional health concerns.
[52] Around the same time that he began misappropriating trust funds from his clients, Mr. Campbell was experiencing some significant health issues. Documentation filed at the sentencing hearing confirms that Mr. Campbell has non-alcoholic fatty liver disease with stage three fibrosis.
[53] Mr. Campbell's wife told the author of the Pre-Sentence Report that around 2016, his doctor informed him that he was not eligible for a liver transplant due to his genetics. Additionally, she advised that Mr. Campbell believed he was terminally ill and had only three years to live. According to his wife, Mr. Campbell became fixated on this information and shared it with everyone he knew.
[54] Whatever his original prognosis, the medical documentation filed at the sentencing hearing suggests that Mr. Campbell's liver condition is not, at present, as dire as he might have believed in the past. Correspondence from the doctor treating his liver condition indicates that although he is at risk for liver cirrhosis, his condition is stable. The course of treatment presently consists of medication and recommended changes in his lifestyle. He must see his hepatologist and undergo a fibro scan annually.
[55] Since being arrested and charged, Mr. Campbell developed a tumour on his neck. It was surgically removed in February 2021, and Mr. Campbell has been undergoing cancer surveillance since then. In a letter dated February 6, 2024, the head and neck oncology surgeon who removed the tumour advised that as of his last follow-up on October 27, 2023, Mr. Campbell "is stable with no evidence or suspicion of local or recurrent disease." Further, the doctor indicated that he "is well healed and has an excellent prognosis."
[56] Finally, in a letter dated February 20, 2024, Mr. Campbell's family doctor detailed his ongoing health issues. Beyond the conditions noted above, these all appear somewhat consistent with the type of health issues many people at Mr. Campbell's age tend to experience—for example, hypertension, kidney stones, sleep apnea, degenerative back discs, and acid reflux. Thankfully, none of these conditions are terminal, and there is no basis to believe Mr. Campbell could not receive appropriate treatment for any of them in custody.
[57] As noted above, Mr. Campbell lost his license to practice law because of his crime. He is now without employment and reportedly insolvent. He owes money to the Canada Revenue Agency. Mr. Campbell's wife, who has remained with him through all this, currently supports them on her pension and by taking on part-time work.
[58] According to Mr. Campbell, the fallout of his actions has affected him and his family members. He reports that strangers have accosted him at the grocery store. Additionally, he advises that someone visited his neighbours to tell them of his offence and urged them to ostracize him. Further, Mr. Campbell reports that one of his children, who is just beginning to pursue a career in law, was denied local employment opportunities because of who his father is, given that the Brampton legal community is aware of his crime. Finally, Mr. Campbell indicates that his children have been victims of harassment on social media because of him.
[59] In explaining his offence, Mr. Campbell told the author of the Pre-Sentence Report that "I was good at my job" but "I was a bad manager." He attributed his actions to "neglect or bad judgment." Defence counsel offered a similar explanation on behalf of Mr. Campbell during his submissions.
[60] Mr. McCulligh advised that when a longstanding bookkeeper left his employ, Mr. Campbell took on that responsibility and let it fall through the cracks. He failed to bill clients for his work and allowed his accounts receivable to go uncollected. He improperly took money belonging to his clients from his trust account to deal with the resulting shortfall, intending to return it when he received funds. However, in time, the accumulated deficit in his trust account grew out of control and reached the amount involved in Mr. Campbell's commission of his offence.
[61] When speaking to the author of the Pre-Sentence Report, Mr. Campbell said he feels "shame, regret, and remorse" for harming his clients by taking their money and indicated that it "still weighs heavily" on his mind.
[62] At the end of the sentencing hearing, Mr. Campbell addressed the gathered victims in court and apologized to them. He expressed shame and remorse for his actions and regret for the harm he caused them. Mr. Campbell admitted abusing the privilege of being a lawyer. He said that he hoped his punishment would offer the victims closure. Finally, he stated that he would carry the burden of shame and regret for the rest of his life due to his actions.
Positions of the Parties
[63] On behalf of the Crown, Ms. Mrejen began her submissions with the sentencing objectives. She submits that due to the gravity of Mr. Campbell's offence, denunciation and general deterrence are of preeminent importance in this case. At the same time, given the revocation of Mr. Campbell's license to practice law, Ms. Mrejen concedes that specific deterrence is a less pressing sentencing objective than it might otherwise be.
[64] Ms. Mrejen submits that the sentencing range for major or large-scale frauds, like that committed by Mr. Campbell, is between three and five years of imprisonment. In making that submission, she relies on the Court of Appeal's decision in R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at para. 18.
[65] Emphasizing several aggravating factors, such as the duration of the fraud, the number of victims, their vulnerability, the total amount misappropriated, its impact on the victims, Mr. Campbell's significant breach of trust, and his lack of cooperation with the Law Society, while also acknowledging a couple of mitigating factors, including Mr. Campbell being a first offender and his guilty plea, Ms. Mrejen submits that the sentence should be at the top of the range: five years of imprisonment.
[66] In urging the court to impose a sentence of that duration, Ms. Mrejen challenges the significance of some mitigating factors in this case. She points out that Mr. Campbell's guilty plea came very late in the process, on the eve of the scheduled trial. Additionally, she contends that Mr. Campbell lacks insight into his offence, as he attributes it to neglect and poor judgment rather than acknowledging the apparent motivation—greed. Ms. Mrejen also argues that Mr. Campbell's health issues should not lessen his sentence, as there is no evidence to suggest that his medical needs cannot be adequately met in custody.
[67] In submitting that the court should impose a five-year sentence, Ms. Mrejen relies on R. v. Wagar, 2018 ONCA 931, leave to appeal refused, [2021] S.C.C.A. No. 53, which she argues was analogous and supported the Crown's position concerning the appropriate sentence in Mr. Campbell's case.
[68] Additionally, the Crown seeks a restitution order in favour of the Fund and two victims for losses they suffered, for which the Fund did not compensate them.
[69] On behalf of Mr. Campbell, Mr. McCulligh concedes that denunciation and deterrence are pressing sentencing objectives in a case like this. However, he submits that denunciation has already been achieved, given the ostracization that Mr. Campbell and his family have experienced because of his crime and the financial consequences it has occasioned for them. Mr. McCulligh notes that with Mr. Campbell's loss of his license to practice law, he can no longer earn a livelihood, is essentially insolvent, and now depends on his wife to support him.
[70] Mr. McCulligh acknowledges some of the aggravating factors noted by the Crown, including that Mr. Campbell's crime involved a profound breach of trust. Nevertheless, he argues that it was not a sophisticated fraud, that it was destined to be discovered and was more the result of Mr. Campbell mismanaging his law practice than malevolence. Further, he notes that Mr. Campbell committed the offence in the aftermath of being diagnosed with a liver condition that he believed would end his life, which appears to have affected his judgment.
[71] Mr. McCulligh submits several mitigating factors are present in this case. First, Mr. Campbell is a first offender. Second, he emphasizes Mr. Campbell's long years of upstanding service as a lawyer and his contributions to the legal and broader community, a legacy he destroyed because of his crime. Third, Mr. McCulligh argues that Mr. Campbell's guilty plea is meaningful and that the delay in entering it was the result of his health issues and his need to recover from multiple surgeries and hospitalizations. Fourth, he notes that Mr. Campbell is deeply ashamed of his actions and extremely remorseful. Finally, Mr. McCulligh asks the court to take into account that because of Mr. Campbell's age and his ongoing health issues, the experience of being incarcerated will be comparatively far worse for him than for someone younger and healthier.
[72] Bearing all that in mind, Mr. McCulligh urges the court to impose the mandatory minimum sentence prescribed by section 380(1.1) of the Criminal Code, two years of imprisonment, less credit for the time Mr. Campbell spent in pre-sentence custody.
[73] In submitting that a sentence of that duration would be appropriate, Mr. McCulligh argues that the Supreme Court of Canada's decision in R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 is analogous and supports his position. Bunn involved a lawyer who misappropriated $86,000 from six different estates. The Law Society of Manitoba discovered his crime through a spot audit and disbarred him.
[74] The trial judge convicted Mr. Bunn of six counts of breach of trust after a trial and sentenced him to two years of imprisonment. Between sentencing and his appeal, conditional sentences became available. On appeal, the Manitoba Court of Appeal substituted a conditional sentence of two years less a day, with a house arrest condition and a requirement that he perform 200 hours of community service.
[75] The Supreme Court of Canada dismissed a further appeal by the Crown, finding no error in the reasoning of the Manitoba Court of Appeal, which it endorsed as entirely reasonable: see Bunn, at para. 23. In that regard, the Manitoba Court of Appeal noted that the ruin and humiliation Mr. Bunn had brought upon himself, and his family and his loss of professional status could provide sufficient denunciation and deterrence when combined with a conditional sentence with house arrest. The Supreme Court also noted that the Court of Appeal had emphasized important mitigating factors, including that Mr. Bunn was the sole provider and caregiver for his wife, who had multiple sclerosis and used a wheelchair, and their teenage daughter.
[76] Finally, Mr. McCulligh did not take issue with the restitution orders sought by the Crown.
Law and Analysis
[77] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop and after accounting for the aggravating and mitigating factors, the judge must fashion a just and appropriate sentence.
Purpose, objectives, and principles of sentencing
[78] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.
[79] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).
[80] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.
[81] The principle of parity is an essential consideration in arriving at a proportionate sentence. Proportionality is a function of the circumstances of the offence and offender compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also paras. 30-33 more generally; see also R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.
[82] Parliament has also recognized restraint as a principle of sentencing: see Criminal Code, ss. 718.2(d) and (f). The Court of Appeal has identified it as a crucial consideration when sentencing first offenders like Mr. Campbell. For such offenders, where a custodial sentence is necessary, the principle of restraint requires the imposition of the shortest possible sentence capable of achieving the objectives of sentencing that are operative in each case: see R. v. A.B., 2023 ONCA 254, at para. 55; R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35.
[83] With the objectives and general principles of sentencing summarized, these reasons next consider the specific guidance provided by Parliament and the Court of Appeal for Ontario regarding sentencing offenders responsible for large-scale, complex, or major frauds, like that committed by Mr. Campbell.
Sentencing for large-scale, complex, or major frauds
[84] Legislative changes over the last two decades have altered the sentencing landscape for fraud, especially in cases where the loss to victims exceeds $1 million.
[85] In 2004, Parliament increased the maximum sentence for fraud over $5,000 from 10 to 14 years: see An Act to amend the Criminal Code (capital markets fraud and evidence-gathering), S.C. 2004, c. 3, s. 2(1); Criminal Code, s. 380(1)(a). When Parliament increases the maximum sentence for an offence, it expresses its view concerning the gravity of that crime, a message that courts are obligated to act upon by imposing lengthier sentences: see Friesen, at para. 100.
[86] Parliament again amended the Criminal Code concerning sentencing for fraud in 2011, including by adding a mandatory minimum two-year sentence where the total value of the fraud exceeds $1 million: see Standing up for Victims of White Collar Crime Act, S.C. 2011, c. 6, s. 2; Criminal Code, s. 380(1.1). That change effectively reserves the minimum sentence for the "best" offender and should have an inflationary effect on the sentences imposed on even more culpable offenders: see R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75, per Arbour J.; R. v. Delchev, 2014 ONCA 448, at paras. 18-19; R. v. B.C.M., 2008 BCCA 365, 238 C.C.C. (3d) 174, at paras. 31-32; R. c. Régnier, 2018 QCCA 306, at paras. 41-44.
[87] Given these legislative changes, the older decisions that Mr. McCulligh relies on in support of his position, including the Supreme Court's decision in Bunn, are now of limited assistance when sentencing offenders for frauds resulting in losses exceeding $1 million. Sentencing decisions involving frauds of that magnitude that post-date the 2004 and especially the 2011 amendments are far more relevant.
[88] The Court of Appeal has long recognized that denunciation and general deterrence are preeminent objectives when sentencing offenders responsible for large-scale, complex or major frauds and that the length of the sentences imposed is what vindicates those objectives: see R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 160, leave to appeal refused, [2011] S.C.C.A. No. 491; R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.), at para. 42. More recently, it has reaffirmed a sentencing range of three to five years imprisonment for offenders who commit such frauds: see Scholz, at para. 18; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 35; R. v. Khatchatourov, 2014 ONCA 464, 313 C.C.C. (3d) 94, at paras. 37-45.
[89] In large-scale, complex, or major fraud cases where the offence involves a breach of trust, courts tend to impose sentences near the upper end or even slightly above the established range. A few decisions illustrate this.
[90] In R. v. McGill, 2016 ONCA 139, the offender was a mortgage broker who fraudulently enticed victims to invest in a Ponzi scheme. Another individual was the mastermind of the fraud. The offender was found guilty of 25 counts of fraud. Twenty-two victims lost almost $2 million. The Court of Appeal allowed the Crown's appeal against the 23-month conditional sentence imposed by the trial judge. Emphasizing the size and duration of the fraud, that its motivation was greed, the breach of trust, the number of victims and the devastating impact of the crime on many of them, the court substituted a four-year sentence on appeal.
[91] In R. v. Cady, 2021 ONCJ 720, the offender pled guilty to fraud over $5,000 and uttering a forged document. She was the bookkeeper for a small company, which she defrauded of slightly more than $1 million through a scheme that lasted four years. The aggravating factors included her breach of trust, the magnitude and complexity of the fraud, its duration, her fraudulent behaviour involving two other employers, and that her offence was motivated by greed. The mitigating factors were her guilty plea, remorse, family support and that she would be serving her sentence while the pandemic remained ongoing. The court sentenced the offender to four years of imprisonment and ordered her to pay restitution equal to the total amount lost by her former employer.
[92] In Wagar, the case Ms. Mrejen pressed as most analogous during her submissions, the Court of Appeal affirmed a five-and-a-half-year sentence, and a restitution order imposed on an investment advisor who pled guilty to two counts of fraud over $5,000. The offender defrauded three of his clients, all of whom were his friends, one of whom was elderly and another of whom was disabled, of almost $800,000. The offender used the money to pay tax debt, utility bills, loans, and credit card debt. Despite the sentence exceeding the top end of the range by six months, the Court of Appeal for Ontario, after emphasizing the victims' vulnerability, the significant breach of trust involved, the duration of the offences, that greed motivated the offences, and the devastating impact on the victims, affirmed the sentence, concluding that it was neither manifestly excessive nor demonstrably unfit: see Wagar, at para. 10.
[93] Of course, it is essential to remember that sentencing ranges are "guidelines rather than hard and fast rules": Nasogaluak, at para. 44. They help structure a sentencing judge's exercise of their discretion because they reflect the application of the objectives and principles of sentencing when it comes to sentencing for a particular offence: see Lacasse, at para. 57. Nevertheless, a sentencing judge may determine that a sentence below or above the established range is necessary, given that the "determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": Lacasse, at para. 58; see also Nasogaluak, at para. 44.
Aggravating and mitigating circumstances
[94] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a).
[95] Concerning the offence of fraud, as a result of the 2011 amendments, the Code now prescribes specific considerations as aggravating: see Criminal Code, s. 380.1(1), (1.1). It also precludes what would ordinarily be mitigating factors including the offender's employment, employment skills or reputation in the community, as being treated as such "if those circumstances were relevant to, contributed to, or were used in the commission of the offence": Criminal Code, s. 380.1(2).
[96] An inventory of aggravating and mitigating circumstances relating to the offence and the offender is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Criminal Code, s. 718.2(a); Nasogaluak, at para. 43.
[97] I will begin with the aggravating factors before turning to the mitigating. There are several significant aggravating circumstances in this case.
[98] First, Mr. Campbell's offence constituted a breach of trust. He was in a lawyer-client relationship with many of his victims. Mr. Campbell had professional responsibilities toward all the victims; he was duty-bound to treat them with honesty and integrity, and responsibly manage the property and money entrusted to him. By defrauding the victims, people with whom he was in a fiduciary relationship, Mr. Campbell committed an extraordinary breach of trust, a significant aggravating factor: see Criminal Code, s. 718.2(a)(iii); R. v. McLellan, 2012 ONCA 717, 293 C.C.C. (3d) 326, at paras. 27-29.
[99] Second, Mr. Campbell exploited his privileged position as a lawyer in committing his crime. The community holds lawyers in high regard because they represent our legal system and are essential to navigating the legal complexities of modern life; people often consult lawyers when they are at their most vulnerable, as many of the victims were in this case. His status as a lawyer is why his victims sought out and trusted Mr. Campbell. It is an aggravating factor when an offender commits fraud by taking advantage of the high regard in which they are held in the community: see Criminal Code, s. 718.2(a)(iii). That is especially true when an offender exploits the privilege of being a lawyer, which invariably undermines public confidence in the justice system: see R. v. Rosenfeld, 2009 ONCA 307, 94 O.R. (3d) 641, at para. 40.
[100] Third, Mr. Campbell's crime involved repeated violations of the licensing and professional standards governing his conduct as a lawyer. The Law Society Tribunal's decision concerning the revocation of Mr. Campbell's license details the various Rules of Professional Conduct and Law Society by-laws he breached by committing his offence and not cooperating with the Law Society in its aftermath. Failing to comply with licensing requirements or professional standards ordinarily applicable to the activity or conduct that forms the subject matter of fraud is an aggravating factor: see Criminal Code, s. 380.1(1)(e).
[101] Fourth, there is the magnitude of the fraud and its duration. Mr. Campbell misappropriated $3.2 million, a very substantial amount of money. Further, the crime involved repeated and discrete acts of dishonesty over several years. Although the crime was by no measure complex or sophisticated, with Mr. Campbell's detection and arrest being somewhat inevitable, its magnitude and duration are significant aggravating factors: see Criminal Code, s. 380.1(1)(a), (1.1).
[102] Relatedly, I reject the suggestion that Mr. Campbell's offence resulted from his poor practice management skills or his inability to cope with the unexpected departure of a bookkeeper. When Mr. Campbell began committing his offence, he had been a lawyer for over three and a half decades. He long knew his mixed trust account was not a piggy bank he could dip into as he pleased to meet his personal or business expenses. The magnitude and duration of the fraud betray that Mr. Campbell's crime was not merely the result of ineptitude in managing his practice.
[103] The lack of complexity and the certainty of the fraud's eventual detection does not lead me to a different conclusion. Based on the record, it is apparent that while the fraud was ongoing, Mr. Campbell quite simply did not care that his clients or the police and the Law Society would eventually discover his crime. After all, Mr. Campbell mistakenly believed that he would not have to deal with the aftermath of his wrongdoing because he thought he would be dead by the time it was eventually discovered. It appears Mr. Campbell decided to make the most of the time he thought he had left at the expense of his clients. That his greed was motivated by his sense of mortality does not lessen the gravity of Mr. Campbell's brazen crime.
[104] Fifth, the large number of victims of Mr. Campbell's crime is an aggravating factor. The victims were his clients, and the beneficiaries entitled to bequests from the estates from which he misappropriated funds. There were 22 victims of Mr. Campbell's fraud. Nine estates, ten individuals, and three charities. By any measure, that is "a large number of victims," which is statutorily prescribed as an aggravating factor: see Criminal Code, s. 380.1(1)(c).
[105] Finally, as noted above, Mr. Campbell’s crime significantly impacted many of his victims. Most were already vulnerable when Mr. Campbell victimized them, coping with the loss of a parent or the aftermath of marital breakdown. Although they ultimately received financial compensation from the Fund, the fraud still had financial consequences for each, impacts that were especially devastating for some. For many, it also negatively affected their health and interpersonal relationships. Finally, it has caused some of the victims to distrust lawyers. In short, Mr. Campbell's offence had a significant impact on his victims, and this, too, is an aggravating circumstance: see Criminal Code, ss. 380.1(1)(c.1), 718.2(a)(iii.1); Drabinsky, at para. 179.
[106] Having summarized the significant aggravating circumstances in this case, I turn to the mitigating. Although there are several, the weight to be afforded to some, as will be explained, is attenuated in the particular circumstances of this case.
[107] First, Mr. Campbell has no criminal record; this is his first offence, which is a significant mitigating factor: see Dobis, at para. 28.
[108] Second, Mr. Campbell pled guilty, thereby saving the time and expense of a trial. In a jurisdiction as busy as Brampton, that is no small matter and deserves some consideration to mitigate the sentence he might otherwise receive: see R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 111. Nevertheless, it does not warrant the same mitigation it would have had it come earlier in the process rather than on the eve of trial. Although Mr. McCulligh suggested the delay was due to Mr. Campbell's need to deal with his health issues, that did not require him to schedule trial dates or bring a section 11(b) Charter application. Mr. Campbell could have pled guilty much sooner and sought to postpone his sentencing while he underwent medical treatment.
[109] Third, Mr. Campbell expressed remorse for his crime. When an offender is genuinely remorseful, it demonstrates they have insight into their wrongdoing and take responsibility for it, which bodes well for their rehabilitation. As a result, genuine remorse constitutes a mitigating factor: see R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65, at para. 11. However, the potential mitigating effect of Mr. Campbell's remorse is somewhat lessened by his insistence that his poor practice management skills led to his offence. That betrays Mr. Campbell's lack of insight and reflects a failure to take complete responsibility for the depth of his dishonesty in committing his crime.
[110] Fourth, Mr. Campbell lost his license to practice law due to his offence and, given his age, has no realistic alternative means of earning a livelihood. He will depend on his wife and her pension income to support him in future. Additionally, he and his family have faced ostracization because of his crime. Such collateral consequences for an offender are matters the court must usually consider to some extent when fashioning an appropriate sentence: see R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 46-59. However, the Court of Appeal's observations in Drabinsky are directly applicable to Mr. Campbell's circumstances, where the court noted, at para. 167:
... individuals who perpetrate frauds like these are usually seen in the community as solid, responsible and law-abiding citizens. Often, they suffer personal and financial ruin due to the exposure of their frauds. Those factors cannot, however, alone justify any departure from the range. The offender's prior good character and standing in the community are to some extent the tools by which they commit and sustain frauds over lengthy time periods. Considerable personal hardship, if not ruin, is virtually inevitable upon exposure of one's involvement in these kinds of frauds. It cannot be regarded as the kind of unusual circumstance meriting departure from the range.
[111] Finally, Mr. Campbell thankfully continues to enjoy the love and support of his wife and children. Family support is a mitigating factor because it bodes well for an offender's eventual reintegration into the community and rehabilitation.
[112] Having summarized the mitigating factors, I pause here to address two considerations I ultimately reject as mitigating in Mr. Campbell's case.
[113] First, Mr. Campbell has several ongoing health issues, some of which are serious. However, Mr. Campbell's health issues are not a mitigating factor because there is no basis to conclude that he cannot receive proper treatment for them while in custody: see Drabinsky, at para. 170; R. v. R.C., 2015 ONCA 313, at para. 8; R. v. LaForme, 2014 ONCA 367, 62 M.V.R. (6th) 29, at para. 12; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 38; R. v. R.L., 2013 ONCA 504, at para. 39.
[114] Second, Mr. Campbell is 68; he is now a senior citizen. The court must consider an older offender's age and refrain from imposing a sentence likely to exceed any reasonable estimation of their remaining life span: see R. v. C.A.M., 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 74; R. v. Premji, 2021 ONCA 721, at paras. 1-4; R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 23, 50-52. That is because such a sentence would have little utility. The traditional goals of sentencing, including denunciation and general deterrence, have no functional value once a sentence exceeds an offender's expected life span: see C.A.M., at para. 74. However, based on the materials filed at the sentencing hearing, even if the court accedes to the Crown's submission concerning the appropriate sentence, there is no reason to believe that such a sentence would exceed the time Mr. Campbell has left.
The appropriate sentence
[115] In arriving at an appropriate sentence, the court must remember the purpose, objectives, and principles of sentencing and that the most pressing objectives when sentencing for serious, complex, or major frauds are denunciation and general deterrence, the range of sentences for frauds of that nature, and the aggravating and mitigating circumstances relating to Mr. Campbell and his offence. While doing so, the court must respect the principle of parity, an essential guide in arriving at a proportionate sentence. Finally, the court must also consider the principle of restraint, which is critical because Mr. Campbell is a first offender.
[116] The need for sentences that denounce and generally deter is why the Court of Appeal has recognized a sentencing range of between three and five years for serious, complex, or major frauds. When combined, the significant aggravating factors in this case, especially Mr. Campbell's extraordinary breach of trust, his exploitation of his privileged position as a lawyer, the magnitude of the fraud and its duration, that it was motivated by greed, the number of victims and its significant impact on them, point towards the imposition of a sentence near the very top or even beyond the established sentencing range.
[117] Concerning parity, none of the sentencing decisions are entirely analogous to the circumstances of this case. Although there are some parallels between the aggravating factors in Mr. Campbell's case and those cases, by comparison, the cumulative effect of the aggravating factors in this case makes Mr. Campbell's offence far worse than those committed by the offenders in McGill, Cady or Wagar. His fraud involved a much larger sum than any of those cases. And, rather significantly, none of those decisions involved the extraordinarily aggravating factor of a lawyer victimizing his clients and the undermining of public confidence in the justice system that unavoidably entails.
[118] As a result, but for Mr. Campbell's guilty plea, his expression of remorse, his family support, the fact that he is a first offender, and the collateral consequences of his offence, I would have imposed a sentence of six years of imprisonment. However, to properly account for the combined effect of these mitigating considerations, I agree with the Crown that five years of imprisonment is the fit and appropriate sentence.
[119] To be sure, that is a very long sentence for a first offender like Mr. Campbell. However, a sentence of that duration is required to denounce his gravely serious crime and send an unmistakable message to any lawyer who might contemplate misappropriating trust funds that they will pay a very hefty price if they choose to do so.
Restitution
[120] The Crown sought free-standing restitution orders in favour of the Law Society and two of the victims. The amounts sought are readily calculable and substantiated by supporting documentation filed at the sentencing hearing.
[121] Although it is doubtful that Mr. Campbell will ever be able to pay restitution, it is appropriate to issue restitution orders under section 738(1) of the Criminal Code because his offence was particularly egregious and involved an extraordinary breach of trust: see R. v. Wa, 2015 ONCA 117, at para. 12; R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 28.
[122] Therefore, under section 738(1)(a) of the Criminal Code, the court shall issue free-standing restitution orders against Mr. Campbell as follows: first, restitution in favour of the Law Society of Ontario for $3,130,559.93, which is the amount paid by the Fund to the victims of Mr. Campbell's fraud. The Law Society is entitled to restitution for that amount, given that it is subrogated to the rights of the defrauded victims who it compensated: see R. v. Fitzgibbon, [1990] 1 S.C.R. 1005, at pp. 1018-19. Second, restitution in favour of the Estate of Robert Ridgway for $35,211.61, which is the difference between the estate's total loss due to the fraud and what was paid by the Fund to the estate. Mr. Campbell shall have ten years to pay these amounts.
[123] Although the Crown also sought a restitution order in favour of Ms. Myshchyshyn, the restitution she seeks relates to legal fees she incurred when she had to hire another family lawyer to handle her case and to assist her with seeking compensation from the Fund.
[124] Section 738(1)(a) authorizes the court to make a restitution order for "damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence." Unfortunately for Ms. Myshchyshyn, it does not authorize compensation for legal fees or disbursements a victim incurs because of the offence: see R. v. Devgan (1999), 44 O.R. (3d) 161 (C.A.), at paras. 29-40, leave to appeal refused [1999] S.C.C.A. No. 518; R. v. Overland, 2014 ONSC 5545, at paras. 40-43.
[125] As a result, the court regretfully must decline to order the restitution sought by Ms. Myshchyshyn.
Conclusion
[126] The court will note Mr. Campbell's sentence as five years of imprisonment. However, after crediting Mr. Campbell for his time spent in detention before his release on bail, including his time subject to lockdowns, the court sentences him to 58 months of imprisonment.
[127] Further, restitution orders shall be issued as detailed in paragraph 122 above.
[128] Since Mr. Campbell’s offence predates the current iteration of section 737 of the Criminal Code, no victim surcharge is payable.
Signed: “Stribopoulos J.”
Released: September 24, 2024