SUPREME COURT OF PRINCE EDWARD ISLAND HER MAJESTY THE QUEEN. - against - FRANCES GEORGINA LAMOUREUX. BEFORE: The Honourable Justice Wayne D.

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Lamoureux 2011 PESC 03 Date: Docket: S1-GC-799 Registry: Charlottetown HER MAJESTY THE QUEEN - against - FRANCES GEORGINA LAMOUREUX BEFORE: The Honourable Justice Wayne D. Cheverie Appearances: John McMillan QC, solicitor for the Crown Brendan Hubley, solicitor for the accused Place and date of sentencing hearing Place and date of oral sentence Charlottetown, Prince Edward Island February 17, 2011 Charlottetown, Prince Edward Island February 25, 2011

2 Page: 2 Criminal law - theft over $5,000 - s. 334(a) and use of forged documents - s. 368(1)b) and s. 368(1)(c) of the Criminal Code - offender pleaded guilty - conditional sentence order declined as being inconsistent with purpose and principles of sentencing - specific and general deterrence objectives not met in this case if conditional sentence order granted. Offender sentenced to 8 months imprisonment followed by two years probation - restitution ordered. CONSIDERED: Criminal Code of Canada, ss. 718, 718.1, 718.2, 718.3, CASES CONSIDERED: R. v. Dixon (DesRoches C.J., December 19, 2003, unreported); R. v. Rogers (Campbell J., February 1, 2005, unreported); R. v. Campbell (Cheverie J., April 13, 2005, unreported); R. v. Proulx, [2000] 1 S.C.R. 61. Cheverie J.: [1] On October 8, 2010, Frances Georgina Lamoureux (the offender ) entered a plea of guilty to the two counts in the indictment now before the court. In particular, she pleaded guilty to stealing money from D. L. McQuaid Holdings Inc. of a value exceeding $5,000 contrary to s. 334(a) of the Criminal Code of Canada (count number one); and knowing a financial record of D. L. McQuaid Holdings Inc. to be forged did cause owners and staff of D. L. McQuaid Holdings Inc. to act upon such book as if it were genuine, contrary to s. 368(1)(b) and s. 368(1)(c) of the Criminal Code of Canada. The theft occurred on consecutive days, commencing July 1, 2010 to and including July 19, 2010 in the total amount of $63, The amounts stolen on each of those days varied from a low of $2, on July 4, 2010, to a high of $4, on July 2, [2] The task for this Court is to craft the appropriate sentence which fits both the offender and the offence. Both Crown counsel and defence counsel concede that a custodial sentence is warranted. They agree such a sentence should be followed by a period of probation with specific terms. They are in agreement on proposed terms for inclusion in that probation order and agree on its duration. In addition, the Crown seeks restitution orders and the defence takes no objection to that request. [3] While both Crown counsel and defence counsel submit that a custodial sentence is appropriate in this case, they differ on where that sentence should be served. The Crown submits that a jail sentence of between six months and twelve months is required. Defence counsel argues the sentence should be between eight months and ten months, but that it should be served in the community pursuant to a

3 Page: 3 conditional sentence order. I agree with counsel that a custodial sentence is warranted in this case and that the terms of probation which I shall address later are appropriate and ought to be imposed. The questions for determination are: (1) What length of sentence should be imposed? and (2) Where should it be served? Relevant sections of the Criminal Code of Canada [4] The path to an appropriate sentence must begin with the purpose and principles of sentencing as set out in the Criminal Code of Canada in ss. 718, and I must also determine whether the prerequisites are met for the imposition of a conditional sentence as prescribed in s [5] Section 718 sets out the fundamental purpose of sentencing. It is to contribute in conjunction with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful, and safe society. That is accomplished by imposing just sanctions that have one or more of the enumerated objectives, i.e. to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [6] Further guidance is provided in s This section mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This section speaks to the fundamental principle of proportionality. [7] In addition to these sections, Parliament has added s It requires that the sentencing court must take into consideration a number of principles, some of which are applicable to this case. For example, I must take into account the principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Of those principles listed in para (a), clause (iii) is applicable. I am required to take into account as an aggravating factor evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. As will be seen from the Agreed Statement of Facts, that aggravating factor is present. [8] The aggravating circumstances in para (a) are balanced by the provisions found in paras (b), (c), (d), and (e). The sentencing court must also take into

4 Page: 4 consideration the fact a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The sentencing court is reminded that an offender should not be deprived of his or her liberty, if less restrictive sanctions may be appropriate in the circumstances. Finally, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [9] Interwoven with a consideration of the purpose and principles of sentencing is the discretion that is reposed in this Court. Since each of the counts to which the offender has pleaded guilty carries a penalty of up to ten years imprisonment, the punishment to be imposed is in the discretion of the court. (See s-s (1)). [10] The final section of the Criminal Code to which I wish to make reference is s the conditional sentence section. Parliament amended this section in 2007 to restrict its application. There are certain offences referred to there for which a conditional sentence order is prohibited. The prohibition is not applicable to this case. Therefore, if I find the prerequisites for a conditional sentence order are present, I may order the offender to serve the sentence in the community, subject to conditions. The three prerequisites are as follows: 1. The sentence of imprisonment must be for a period of less than two years; 2. The court must be satisfied the service of the sentence in the community would not endanger the safety of the community; 3. The sentence would be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to [11] The law contained in the fundamental purpose and principles of sentencing and the other sections which I have just referenced, must be applied to the facts surrounding the offences. Crown counsel, defence counsel, and the offender, have signed off on an Agreed Statement of Facts which has been filed and on which the court must sentence. Agreed Statement of Facts [12] The facts before me indicate the McQuaid company is operated by Derrick and Diane McQuaid, who are brother and sister. They operated the A&W Restaurant on University Avenue in Charlottetown since July, They employ between 25 and 35 individuals. In 2003, they hired the offender as a cook; she subsequently became kitchen supervisor; then head supervisor; and in 2006 became manager of

5 Page: 5 that restaurant at an annual salary of approximately $35,000. [13] Among her duties was the responsibility for balancing the daily cash sales and posting the sales figures using certain computer software. She was also responsible for preparing the deposit slips and depositing the cash, credit card, and debit card receipts to the A&W Restaurant account at TD Canada Trust. [14] Sometime during the summer of 2010, the McQuaids conducted an internal audit and determined the offender had been stealing cash. She accurately entered the daily cash sales on the computer software, but did not deposit all the cash to the restaurant account. The total amount stolen was $63, This was stolen in different amounts on consecutive days over an approximate three week period from July 1, 2010 to and including July 19, [15] Fortunately, D. L. McQuaid Holdings Inc. was insured and their insurers, the Co-operators, reimbursed them the sum of $50,000. No restitution has been paid to either the McQuaids or their insurer. Pre-sentence report [16] At the request of counsel at the time the offender entered her pleas of guilty, a pre-sentence report was requested. That report was filed on January 5, 2011 and it must be considered in the sentencing process. The pre-sentence report provides background on the offender to be considered in crafting the appropriate sentence. It states she is 57 years of age and comes from a troubled childhood. She is presently in her third marriage which took place in At age 18 she married for the first time and had two children of that relationship. She also had two children from her second marriage. All four of her children are now adults. The report to the court confirms she had been employed by D. L. McQuaid Holdings for between seven and eight years prior to July, [17] There are several bits of information contained in the pre-sentence report which bear on the sentence to be imposed. I note, for example, that the offender was referred to a local psychiatrist, Dr. Angus Beck, in November, 2010 and he has treated her since then. Copies of correspondence from Dr. Beck have been filed by defence counsel and I shall refer to them later. Defence counsel also pointed out in his submissions that the offender suffers from mental health issues. This is borne out by the pre-sentence report and also by the correspondence from Dr. Beck. [18] The pre-sentence report writer notes at p. 4:

6 Page: 6 Mr. McQuaid outlined that Mrs. Lamoureux was treated like a family member. The McQuaid family helped her to purchase a car and paid for a Florida trip. This sentiment is echoed in the victim impact statement filed by Diane McQuaid. This is relevant to the offender s breach of trust. Although defence counsel sought to minimize the description depicted in the pre-sentence report and by Diane McQuaid, he did nothing further to challenge those statements. This is not intended as a criticism of defence counsel. He must deal with the facts and circumstances as he finds them, and present his client s case in the best possible light. He has discharged his obligation in that regard. [19] The pre-sentence report also speaks to the fact that the offender does not go out in public anymore, she is ashamed of what has happened. I accept that as an example of remorse on her part. When given the opportunity to address the court, she also expressed regret for her actions to both her employer and co-workers. I am satisfied she has accepted responsibility for her actions. [20] The pre-sentence report points out the offender has no record and appears before the court as a first offender. However, she reported to the report writer that she couldn t explain why she committed the offences. While the state of her mental health has clearly been drawn to the court s attention, there is no mention of her suffering from any addiction issues - either in the pre-sentence report or in Dr. Beck s letters. [21] In all, the pre-sentence report is helpful in painting a picture of the offender as a person, and outlining the background from which she has come. However, it offers little insight into her actions giving rise to the present charges. I note she was cooperative in the preparation of the report and I am advised she was cooperative with the authorities during the course of their investigation. That is to her credit. In my view, the pre-sentence report is neutral. I have seen more positive reports and more negative ones. Letters from Dr. Angus Beck [22] Defence counsel filed copies of two letters from Dr. Beck. The first is dated December 20, In that letter Dr. Beck indicates he saw the offender on December 13, She reported to him that she stole $63,000 over five years from the A&W Restaurant. She described to him that she did this primarily by not making the daily deposits. She offered to Dr. Beck that the thefts initially started five years ago, around the time her daughter was involved in a motor vehicle accident, and Dr. Beck writes that Ms. Lamoureux...felt stressed and depressed wondering what she

7 Page: 7 could do and so she stole money to go and get her daughter who had no oil and heat.. She went on to list other stresses in her life at that time. Dr. Beck concluded in his December 20 letter: However, I get no clear history of a Major Depressive Disorder, Bipolar Disorder, Schizophrenia, or any psychosis that might explain psychiatrically why she did what she did. Dr. Beck followed up with a letter dated February 7, 2011 in which he described the offender s current circumstances, but offered no further insight as to the reason why she committed these crimes. [23] At the sentence hearing, the information purportedly provided by the offender to Dr. Beck referencing the theft of $63,000 over a five year period was raised with counsel. The Agreed Statement of Facts speaks to the theft of over $63,000 during a three week period in July, Those are the facts on which I must sentence. [24] However, the information apparently provided to Dr. Beck and then by him to this Court is troubling. Either the offender was misleading Dr. Beck when she met with him on December 13, 2010; or there is another theft which has, as yet, gone undetected; or Dr. Beck misunderstood what the offender relayed to him. Insofar as one tries to identify the reason for the thefts, the letters from Dr. Beck raise more questions than answers. Reasons for stealing don t provide an excuse, but they help to provide some context and therefore are helpful in arriving at a proper sentence. Victim Impact Statements [25] Several victim impact statements were filed with the court. The owners speak of how they treated the offender, more than just an employee. She was considered a friend. They took her to out of province meetings at their cost and purchased a used car for her at the cost of the restaurant. They didn t ask her to repay the money for the car. They feel betrayed by the offender. In addition to the emotional impact, the offender s actions have had a significant financial impact on their business which operates on fairly slim profit margins. [26] Victim impact statements were also filed by two co-workers who echo the emotional impact on them and on other employees when they became aware of the offender s criminal activity. In one case, Cory Stevenson recounts that he made an error on the computer with respect to a deposit sometime after the offender pleaded guilty to these charges and felt extremely uncomfortable when asked by his employer about this error. It seems that one of the effects of the offender s actions has been to have employees looking over their shoulders while the employer is more alert and sensitive to all aspects of the business.

8 Page: 8 Aggravating and mitigating factors [27] There are both aggravating and mitigating factors present in this case. The facts themselves are aggravating. The fact the offender stole $63, by taking different amounts of cash everyday from July 1 to July 19, 2010 points to deliberate, planned actions on her part. She has violated a breach of trust between her and her employer. That breach of trust is further exacerbated by the fact she was treated more like family, and certainly like a friend, rather than just another employee. The theft of over $63,000 is a significant sum in itself, but it takes on even greater importance when one considers the short period of time over which it was stolen. It was slightly less than twice her annual salary. [28] There are also mitigating factors at play here. First of all, the offender pleaded guilty and waived her right to a preliminary inquiry. The guilty pleas save the taxpayers of this province the time and expense of trial. Witnesses are spared the rigours of examination and cross-examination at trial. Defence counsel pointed out that fraud trials are difficult, and I agree. Her guilty plea is not insignificant. [29] Another mitigating factor is the mental health issues with which the offender suffers and must deal with. Although not directly related to her criminal activity, they are relevant to the sentencing process. As noted earlier, she cooperated with the authorities and appears before the court as a first offender. Previously decided cases [30] The Crown filed with the court sentencing summaries from 20 unreported cases from this jurisdiction of what may be referred to as employee theft cases. Defence counsel was content that these case summaries were representative of sentences for employee thefts and did not file any additional cases. [31] The cases are from both this Court and the Provincial Court of Prince Edward Island. They cover the period from August, 1999 to December, In 15 of the cases, conditional sentences were imposed for thefts of various amounts. In the other five cases, jail terms were imposed in the range of three to six months with one case attracting a two year penitentiary term on a joint recommendation by counsel. [32] It is not my intention to review each of these cases, however a few are worthy of note. In the case of R. v. Shelly Annette Dixon (unreported), she stole over $193,000 from the Montague Credit Union. She reported herself to the RCMP and confessed to the crime, and had a positive pre-sentence report. She was sentenced to a 15 month conditional sentence followed by 12 months probation. A fraction of the loss was recovered from insurance monies. That sentence was imposed in 2003 and

9 Page: 9 standing alone would provide considerable support for a conditional sentence in the case at bar. [33] In 2005, in R. v. Michelle Leanne Rogers (unreported), a three month jail sentenced was imposed, followed by 12 months probation for failing to pay for a motor vehicle which she purchased from a local dealer for $32,000. She had a prior record. [34] In a large number of these cases, there were underlying addictions issues of one form or another, either alcohol or drugs or gambling. In many instances the accused individuals were stealing money to support their habits. In each of those cases, a conditional sentence was imposed. [35] In the case of R. v. Brenda Alexandra Campbell (unreported), this Court sentenced her to a term of six months imprisonment followed by two years probation. She had stolen approximately $60,000 from a local charitable organization and caused them additional charitable status problems. While she was a first time offender, her pre-sentence report was not positive and she did not express any remorse for her actions. She could not fully account for how she spent the stolen money, but she did advise the author of the pre-sentence report that she provided financial assistance to her children, attended to personal expenditures and helped out other people financially. Analysis [36] Once again, the court is presented with a case of employee theft. No two cases are identical and that is why the Criminal Code requires that the courts impose similar sentences on similar offenders for similar offences. The unreported cases referred to by counsel show that the vast majority resulted in conditional sentence orders. [37] The leading case with respect to conditional sentences remains R. v. Proulx, [2000] 1 S.C.R. 61. Among other things, in Proulx, the Supreme Court of Canada confirmed that a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. The exception to that principle now would be those offences specifically carved out by Parliament in the 2007 amendment to s The Supreme Court said there is no presumption in favour of a conditional sentence if the prerequisites have been satisfied. The court went on to say that a conditional sentence can provide a significant amount of denunciation and deterrence if significant conditions are attached. The case articulated a number of other propositions, but these are the most relevant to the case before me.

10 Page: 10 [38] Yet again the court is urged to determine whether an accused individual meets the prerequisites for a conditional sentence and then to impose a conditional sentence order. While I agree with the Supreme Court of Canada that the objective of deterrence, both general and specific, can be met through a conditional sentence order, it does not appear to me that objective can be met in this case. The offender has not offered any explanation for stealing such a large sum of money. Although she committed the crime about seven months ago, she offers no explanation as to what she did with the money. We know she does not suffer from any addictions as did many of the offenders in the cases presented who were recipients of conditional sentence orders. We know she has mental health issues, but Dr. Beck cannot enlighten us as to any psychiatric reasons for the offender s behavior. [39] It appears from the victim impact statements the offender was treated more as a friend than an employee. She clearly breached her position of trust. The Agreed Statement of Facts indicates she stole this money deliberately and methodically over a period of a few weeks. The court is also advised she has now retreated to her home and remains there, out of shame for her actions. A conditional sentence order would allow the offender to continue in her seclusion. Nothing would change. It would not serve the objective of specific deterrence to the offender. [40] With respect to the application of s , I am of the view that a term of imprisonment of less than two years is appropriate in these circumstances. Therefore the offender meets that prerequisite. There is nothing before me which would indicate that she would endanger the safety of the community if she were allowed to serve her sentence in the community. Therefore the second prerequisite has been met. However, when it comes to the third prerequisite, I do not believe that allowing her to serve her sentence in the community would be consistent with the fundamental purpose and principles of sentencing. [41] Specifically, it does not appear to me that the objective of general deterrence is being met in these employee theft cases by using conditional sentence orders. It does not appear to me that the message which the courts are sending is being received. I am aware of the admonition that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, but I am of the view that this offender cannot avail herself of that admonition. There does not appear to be fewer cases of employee theft coming before the courts in this province since the use of conditional sentence orders. The opposite may be true. Certainly these cases are not in decline. [42] The offender appears before the court without a record, but she is not a youthful offender. She could still benefit from some rehabilitative measures in a probation order and the harm she has done to the community may also be brought

11 Page: 11 home to her in that probation order, but the objective of general deterrence will not be met by a conditional sentence order. [43] Therefore, taking into consideration the Agreed Statement of Facts, the presentence report, the victim impact statements, the submissions of counsel and the cases referred to by counsel, as well as the relevant sections of the Criminal Code and their application to the case at bar, Ms. Lamoureux, the sentence of the court is as follows: 1. On count number one in the indictment contrary to s. 334(a) of the Criminal Code, I convict you and sentence you to a term of eight months incarceration in a provincial correctional facility. Upon your release from custody, I place you on probation for a period of two years with the following conditions: (1) Keep the peace and be of good behavior; (2) Appear before the court when required to do so by the court; (3) Notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation; (4) Report to a probation officer immediately upon your release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; (5) Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or your probation officer; (6) In order to bring home to you the effect that this offence has had on the community as a whole, and in order to provide you with an opportunity to put something back into the community for the harm done in this matter, you are to perform, free of charge, 100 hours of community service work on each count in the indictment, for a total of 200 hours; such work to be performed as and when reasonably directed by your probation officer and to be performed to the reasonable satisfaction of your probation officer. This condition is to be completed within 18 months of your release from custody; (7) Undergo such assessment, counselling, or treatment for any mental health problems you may have as may be directed by your probation officer in consultation with the appropriate professional personnel; (8) Write a letter of apology to Diane McQuaid, Derrick McQuaid

12 Page: 12 and Patricia McQuaid, the victims in this matter; that apology to be written to the reasonable satisfaction of your probation officer and to be provided to your probation officer and forwarded to the victims; (9) Remain away absolutely from the premises of D. L. McQuaid Holdings Inc. located at 650 University Avenue, Charlottetown, Prince Edward Island, unless you have the prior written consent of your probation officer. 2. On count number two in the indictment, contrary to ss. 368(1)(b) and 368(1)(c) of the Criminal Code, I convict you, and sentence you to serve a term of eight months incarceration in a provincial correctional facility to be followed by two years probation with the same terms and conditions I attached to count number one. [44] The sentence on count number two shall be served concurrently with the sentence on count number one. [45] Pursuant to s. 738 of the Criminal Code, I make the following restitution orders: 1. I order the offender, Frances Georgina Lamoureux, to make restitution to D. L. McQuaid Holdings Inc. in the amount of $13,227.26; 2. I order the offender, Frances Georgina Lamoureux, to make restitution to The Co-Operators in the amount of $50,000. [46] Given the amount of restitution ordered, I waive the imposition of the victim surcharge. February 25, 2011 J.