December 30, 2021 –.This press release is sponsored by Investigation Counsel PC, Fraud Recovery Lawyers.
On November 29, 2021, Justice Peter West of the Ontario Court of Justice sentenced Barbara Booker to 12 months jail for her part in a $99,225 on the law firm that she worked for.
Barbara Booker was the secretary, law clerk and bookkeeper. She was a licensed paralegal with the Law Society of Upper Canada. She had the sole responsibility of entering debits and credits into the PC Law accounting program used by solicitor N’s law practice. In fact, she recommended that solicitor N purchase PC Law.
The Scheme
Kyle Wyer died intestate, without a will. Ms. Booker brought an application to have his sister, Ms. Emily Wyer, appointed as the estate trustee. Ms. Booker prepared all of the documentation and ultimately directed the Court to only respond to her email address respecting materials necessary to obtain the order appointing Ms. Wyer as trustee.
Commencing in December 2012, a total of 83 cheques, were issued from both the trust and general accounts of a law firm to Emily Wyer (in the total amount of $60,875.00) and two trust cheques to a Robert Wyer ($38,806.26)14 before a London Life insurance cheque dated May 6, 2014, in the amount of $113,416.70, payable to Emily Elizabeth Anne Wyer, Estate Trustee of the Estate of Kyle Wyer, was received.
Emily Wyer was entitled to receive some of the proceeds from the proceeds of an insurance poicy paid to Kyle Wyer’s estate. The amount Ms. Wyer received, however, was far in excess of what she would have been lawfully entitled to.
Ms. Wyer, on the basis of the cheques written by Ms. Booker, personally received just over $100,000.00, which was more than the total amount paid to the other four heirs5 of Kyle Wyer’s estate (a total of $83,806.26).
With the exception of 6 cheques (totalling $8,300.00) Ms. Wyer cashed the cheques at a Money Mart, which was within walking distance of the law office. Ms. Wyer cashed those cheques on the day she attended the law office to pick them up, which in most cases was the date of the cheque.
The fraud was discovered near the end of 2016 when he was retired and the lawyer who took over his practice inquired about a $125,000 cheque that had been deposited into the trust account.
Ms. Wyer’s source of income was payments from ODSP, a government disability pension, yet each time she came to the law office she arrived in a taxi and paid exorbitant cheque cashing fees to Money Mart.
The Court found that the number and the amount of the cheques received by Emily Wyer did not accord with common sense and everyday life experience. The cheques payable to Emily Wyer ranged from as low as $200.00 to as much as $10,000.00.20 They were all round dollar amounts.
The Court found that Ms. Booker’s explanation for the payment of cheques to Ms. Wyer before any monies were received from the insurer was “absolutely absurd, completely preposterous and unbelievable”.
The Court founds that the only reasonable inference available on the evidence was that Ms. Wyer and Ms. Booker were sharing the cash generated from Ms. Wyer attending Money Mart in some fashion.
The Court held that the lawyer had no involvement in the preparation of the accounting records, and he relied completely on Ms. Booker’s work.
Sentence for Barbara Booker
Barbara Booker was 54 years of age at the time of sentencing, married and had three children. She worked for the lawyer as his secretary, law clerk and bookkeeper for 13 years from 2002 until the lawyer’s retirement in 2014.
Since 2015 to the date of her sentencing, Ms. Booker was employed with Daniel & Partners as a real estate law clerk, which was verified by Callum Shedden, the lawyer she worked for. Mr. Shedden described Ms. Booker as a “terrific employee, very professional and entirely trustworthy.” He was shocked by the charges and advised he would hate to lose her as an employee because of these charges.
Ms. Booker settled the civil action brought by LawPro against her. The amount of the settlement was $40,000.00 – less than half of the quantum of the fraud. She received a full and final release from the plaintiffs.
The release states that the settlement was not an admission of any wrongdoing by Ms. Booker. This means there was no remorse or acceptance of responsibility on the part of Ms. Booker for her fraudulent conduct.
The Court held that there was no evidence that Ms. Booker had any insight into her fraudulent behaviour, and that accordingly it was a cases where the punitive objectives of denunciation and deterrence were particularly pressing, and incarceration was the preferable sanction.
The Court held that were to impose a conditional sentence in the case of an offender who does not believe they have done anything wrong, this would send the wrong message to other individuals in a position of trust and would not act as a deterrent in preventing them not to engage in similar behaviour.
The Court held that general deterrence is the significant sentencing principle to send the message to those in positions of trust if they breach that trust then the consequence will most often be a custodial sentence of imprisonment.
Sentence for Emily Wyer
The Court sentenced Emily Wyer to a 10 month conditional sentence with a house arrest condition for the entire length of the conditional sentence on the Electronic Supervision Program.
The Court held that although the fraud offence was a breach of trust that Ms. Wyer would not have been able to engage in the conduct she did without Ms. Booker’s involvement.
The Court held that sentencing principles do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court.
Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case.
A full copy of the decision can be found at R. v. Booker, 2021 ONCJ 625, here.[2]
Ontario Court of Justice
R. v. Booker, 2021 ONCJ 625
HER MAJESTY THE QUEEN AND BARBARA BOOKER & EMILY WYER
Peter C. West J.
Heard: September 14, 2021
Judgment: November 29, 2021
Docket: St. Catharines 2111-998-F19-0964-01
Counsel: Ms. E. Weis, for Crown
Mr. V. Singh, for Accused, Barbara Booker
Mr. T. Jamieson, for Accused, Emily Wyer
Subject: Constitutional; Contracts; Criminal; Human Rights
Peter C. West J.:
Introduction:
1 On May 17, 2021, I convicted Barbara Booker and Emily Wyer of fraud over in respect of cheques drawn on the Trust and General accounts of the law firm of Richard A. Nabi & Associates, Further, I also convicted Barbara Booker of uttering a forged document in respect of a divorce order for Yanet Diaz, a client of Richard Nabi. Ms. Booker and Ms. Wyer elected trial in the Ontario Court of Justice, which took almost three weeks to complete the Charter applications and third party records application brought by Ms. Booker, as well as the evidence on the trial proper. I ordered presentence reports for each of the defendants and advised counsel to provide any sentencing materials they intended to rely upon in advance of the sentencing hearing. Counsel have provided me with extensive casebooks and some additional sentencing materials. I wish to express my appreciation to counsel for their preparation and submissions throughout this proceeding.
Factual Background
2 I do not intend to provide detailed facts respecting the charges and my findings of fact, as I did this in my written reasons for judgment convicting both accused.1
3 Barbara Booker was the secretary, law clerk and bookkeeper of Mr. Nabi’s law practice. She was a licensed paralegal with the Law Society of Upper Canada. She had the sole responsibility of entering debits and credits into the PC Law accounting program used by the Nabi law practice. In fact, she recommended that Mr. Nabi purchase PC Law. I found Mr. Nabi had no involvement in the preparation of the PC Law accounting records, as he did not know or understand how PC Law operated and he relied completely on Ms. Booker’s work. In fact, even after Mr. Nabi was advised a $125,000.00 cheque payable to the Sandra Wendler file, which he had transferred to another lawyer after he retired to collect, had in fact been received by his law practice and deposited to his bank account, he sought out Ms. Booker’s assistance to review the PC Law records, as he believed there must be a legitimate explanation. He believed Ms. Booker must have made an honest mistake and this could be rectified with her assistance. Ms. Booker strung Mr. Nabi along and then ignored his requests to meet with him to assist him. As a result Mr. Nabi was forced to hire an accountant to determine whether this cheque had been mistakenly entered and attributed in his records. This led to him retaining an expert to gain access to his PC Law records, which could not be accessed by the individual who had previously handled the computer issues of his law practice and he incurred an expense as a result. Once he obtained the PC Law records he provided them to the accountant he retained and paid for, Kristopher McEvoy. It was as a result of Mr. McEvoy’s review of the trust and general account records in PC Law, as well as the PenFinancial bank records of Mr. Nabi’s law practice that the 140 cheques payable to Emily Wyer were discovered by Mr. McEvoy. In addition, numerous irregularities in respect of these 140 cheques were discovered by Mr. McEvoy in the PC Law records that had been prepared by Ms. Booker.
4 I found the only reasonable inference on the evidence was that Ms. Booker had made these irregularities to hide the fraud she was perpetrating on Richard Nabi and his law practice. In reviewing the Toronto Superior Court file respecting the Kyle Wyer estate I found it was Ms. Booker who prepared all of the documentation based on the correspondence and documentation. I accepted Mr. Nabi’s evidence he did not know Ms. Wyer, had never been retained by her as a client and was completely unaware of the application in Toronto to have Emily Wyer appointed as her deceased brother’s estate trustee. There were no meetings between Mr. Nabi and Ms. Wyer in either Mr. Nabi’s or Ms. Booker’s appointment books. Prior to the London Life cheque in the amount of $113, 416.70 payable to Emily Wyer being received on May 6, 2014, and deposited into Mr. Nabi’s bank account by Ms. Booker, Ms. Booker had already issued a total of $99,681.262 to Ms. Wyer and her brother Robert Wyer. The cheques were drawn on both Mr. Nabi’s Trust and General accounts, despite there being no monies in trust. Ms. Booker issued more than 140 cheques totalling $185, 574.26 to the purported beneficiaries of the Wyer estate, which was greatly in excess of the London Life cheque. Ms. Booker’s initials were on the deposit of the London Life cheque and it was Ms. Booker who prepared and wrote all of the cheques in respect of this estate file. The cheques payable to Emily Wyer were in different amounts for which there was no apparent or logical reason. In the final three months of the fraud, cheques were being written by Ms. Booker and Ms. Wyer was attending the Nabi law office almost daily. In my reasons for judgment I outlined the numerous irregularities made by Ms. Booker to cover up this fraud.
5 Emily Wyer purportedly received a total of $99,225 from the Trust and General accounts of Mr. Nabi’s law practice. The cheques related to the Wyer estate exceeded the London Life insurance proceeds by more that $80,000. The evidence demonstrated that Ms. Wyer attended the Nabi law office3 and would immediately attend the Money Mart situated within walking distance of the office to cash the cheque she received. Ms. Wyer only deposited six of the cheques she received into her personal bank account.
6 The Crown submitted there was an inference available that Ms. Wyer had a particular motivation to immediately cash these cheques she got from Ms. Booker at a financial institution close to where Ms. Booker worked. No evidence was led as to the relationship between Ms. Booker and Ms. Wyer. I did not accept Ms. Booker’s evidence respecting her purported ignorance of Ms. Wyer. I did not accept Ms. Booker’s evidence that Mr. Nabi instructed her to pay the various cheques she prepared and wrote to Ms. Wyer. Ms. Booker wrote 136 cheques to Ms. Wyer in varying amounts. Ms. Booker’s evidence was completely incredible and unbelievable and did not accord with common sense or logic. When Ms. Booker’s evidence was compared to the PC Law entries and the many irregularities in those records together with the mischaracterization of some of those cheques or where some of the cheques payable to Emily Wyer were entered, it is my view the only reasonable inference was that Ms. Booker was actively engaged in defrauding Richard Nabi for her own financial benefit and was using Ms. Wyer to achieve that purpose. Ms. Wyer, on paper, received more than the other purported4 beneficiaries. Although the Crown was unable to establish the exact amount Ms. Booker benefited from her fraudulent conduct I am satisfied beyond any reasonable doubt that she benefited financially from her actions.
7 It was clear from Ms. Booker’s evidence that she disliked Mr. Nabi, did not respect him, and held the view Mr. Nabi was underpaying her for the services she provided. She testified she had no choice but to work for Mr. Nabi because of her inability to drive and her need for the income, albeit not what she deserved, she received. I found this provided her motivation to commit the fraud she did.
8 Neither the Crown nor the defence provided me with any documentation as to how the $113, 416.70 insurance cheque was to be distributed to Kyle Wyer’s heirs. It was my understanding from the evidence that Kyle Wyer died intestate, without a will and I found it was Ms. Booker who brought the application to have Ms. Wyer appointed as the estate trustee. Ms. Booker prepared all of the documentation to the Toronto Superior Court and ultimately directed the Court to only respond to her email address respecting materials necessary to obtain the order appointing Ms. Wyer as trustee. Emily Wyer was clearly entitled to receive some of the proceeds from the insurance cheque paid to Kyle Wyer’s estate, however, the amount Ms. Booker paid Ms. Wyer through the 136 cheques was far in excess of what she would have been lawfully entitled to receive. Ms. Wyer, on the basis of the Trust and General cheques written by Ms. Booker, personally received just over $100,000.00, which was more than the total amount paid to the other four heirs5 of Kyle Wyer’s estate (a total of $83,806.26). With the exception of 6 cheques (totalling $8,300.00) Ms. Wyer cashed 130 of the cheques at Money Mart, which was within walking distance of Mr. Nabi’s law office. Ms. Wyer cashed those cheques on the day she attended the Nabi office to pick them up, which in most cases was the date of the cheque. I found this consistent routine followed by Ms. Wyer did not accord with common sense or logic. Her source of income was payments from ODSP, a government disability pension, yet each time she came to the Nabi office she arrived in a taxi and paid exorbitant cheque cashing fees to Money Mart. It is my view the only reasonable inference available on the evidence was that Ms. Wyer and Ms. Booker were sharing the cash generated from Ms. Wyer attending Money Mart in some fashion.
9 The facts surrounding Ms. Booker uttering a forged document by fabricating or falsifying the Court Order for Ms. Diaz’s divorce are set out in detail in my Reasons for Judgment and I will only address them briefly now. Ms. Diaz was referred to Mr. Nabi by Michael George, the lawyer Mr. Nabi shared offices with, to make application for an uncontested divorce.
10 Mr. Nabi had previously met with Ms. Diaz to provide her with independent legal advice in respect of a separation agreement prepared by her husband’s lawyer. He was also involved in the sale of Ms. Diaz’s home, with the bulk of the work on this file being performed by Ms. Booker, as it was a real estate transaction. Mr. Nabi met with Ms. Diaz on two occasions in September 2013, at the commencement of the uncontested divorce application. These appointments were reflected in Mr. Nabi’s appointment book calendar. After Mr. Nabi met with Ms. Diaz, Ms. Booker was tasked with arranging for Ms. Diaz’s marriage certificate to be translated from Spanish to English. I found that Ms. Booker was responsible for completing the various forms and documents required by the Superior Court, which from the evidence led were left uncompleted and not properly filed with the Superior Court. Ms. Booker arranged for Ms. Baer, a process server retained by Ms. Booker, to file documents with the Superior Court on November 5, 2014, which were preparatory documents necessary to be served on Ms. Diaz’s husband. A number of documents, which were preconditions to a Judge signing the Divorce Order to obtain the final Divorce Order, were never filed with the Court or served on Ms. Diaz’s husband as required. Further, only the first of two fees required to process the application were paid by Ms. Booker to the Court and the banking records of PenFinancial Bank did not reflect a cheque for the second fee ever being paid to the Court, although the documentation in the file, prepared by Ms. Booker, reflected both cheques as being paid on the same date (October 28, 2014), which was not the date on the cheque for the initial fee served by Ms. Baer (November 5, 2014) on the Superior Court. Ms. Booker in her evidence conceded she was aware the serving of these documents on Ms. Diaz’s husband, filing them with the court as well as providing payment for the second fee were preconditions for the Divorce Order to be issued and signed by a Judge of the Superior Court. The Divorce Order provided by Ms. Booker to Ms. Diaz did not contain a Judge’s signature, rather, only the Clerk’s stamp was on the Divorce Order, which is affixed to a copy of the Order that would have been provided to counsel. I found Ms. Booker was aware of a valid Divorce Order was signed by a Superior Court Judge. The evidence established the document provided to Ms. Diaz was a complete fake and I found the only reasonable inference based on the evidence was that Ms. Booker knew this when she gave it to Ms. Diaz based on Ms. Booker’s testimony as to her knowledge and training.
11 The false Divorce Order was subsequently presented by Ms. Diaz to the Court to obtain a marriage license so she and her fiancée could be married. It was her plan to then sponsor him to be able to emigrate to Canada. As a result of the false Divorce Order Ms. Diaz had to postpone her marriage and hire another lawyer to bring an uncontested divorce application so she could get married. Her fiancée was not able to come to Canada as a permanent resident and work until after they were married, which resulted in Ms. Diaz having to sell the house she had purchased for them to reside in. In addition, her fiancée was not able to sponsor his son, who resided in Cuba, to come to Canada because as a result in the delay in Ms. Diaz obtaining her divorce and the marriage license, the son was conscripted into the Cuban military.
Position of the Parties:
12 Ms. Weiss, for the Crown, argues that the appropriate sentence for Barbara Booker for the two offences she was convicted of is two and a half years in the penitentiary, made up of an 18 month sentence for the fraud over respecting her employer, Richard Nabi, and 12 months for the utter forged document relating to the fabricated divorce order she provided Mr. Nabi’s client, Yanet Diaz.
13 Ms. Weiss points to a number of aggravating factors, which are statutorily mandated by s. 380.1(a), (c.1), (d) and (f) and s. 718.2(iii) and (iii.1) of the Criminal Code, to support the Crown’s position respecting each of the offences. The Crown submitted a 2.5 year penitentiary sentence also takes into account the sentencing principle of totality.
14 Mr. Singh, on behalf of Ms. Booker, submitted a two year less a day conditional sentence, with a house arrest condition for the entire duration, followed by three years of probation was the appropriate, fit sentence to be imposed for a first offender. It was his position that a two year less a day conditional sentence with house arrest for the entire duration would adequately address the sentencing principles of denunciation and deterrence. He pointed to the fact that Ms. Booker had settled the civil litigation with Mr. Nabi and Law Pro respecting the fraud perpetrated on Mr. Nabi. Further, Mr. Singh advised that Ms. Booker had provided to him and he had placed in trust, the full restitution for Ms. Diaz being sought by the Crown.
15 Ms. Weiss’s submission respecting Ms. Wyer is a sentence of 10 months, followed by probation, as the appropriate sentence to be imposed. The Crown was not opposed to a conditional sentence having regard to Ms. Wyer’s medical issues. This corresponds with the sentencing position taken by Mr. Jamieson, on behalf of Ms. Wyer, who has a very dated unrelated criminal record. As such, the Crown and defence are taking a joint position respecting a fit and appropriate sentence for Ms. Wyer.
Victim Impact Statements
a. Richard Nabi
16 Barbara Booker worked for Richard Nabi as his secretary, law clerk and bookkeeper for approximately 13 years from 2002 until Mr. Nabi’s retirement in 2014. She was Mr. Nabi’s only full-time employee during his years as a sole practitioner, sharing space with another lawyer, Michael George. He described in his Victim Impact Statement (VIS) the deep emotional impact Ms. Booker’s conduct has had on him. As a result of being advised a trust amount of $125,000.00 had not been recorded in a client’s trust account just prior to his retirement, Mr. Nabi found himself having to self-report himself to the Law Society of Upper Canada. He described his humiliation of having to contact his bank to obtain records and his dealings with the Law Society investigator. He became depressed and had to hire an accountant to try to determine what had occurred. As a result of retiring from his practice he only had minimal insurance with a large deductible. During this investigation he received a further complaint respecting Ms. Diaz, a client referred by Mr. George to Mr. Nabi, being provided a false divorce Order by Ms. Booker. Mr. Nabi has been sued by this client for $450,000.00. There has been a considerable financial loss to Mr. Nabi based on the accountant, Mr. McEvoy’s analysis ($78,804.33), as well Mr. Nabi incurred an expense of $27,708.13 for accounting fees for the work conducted by Kristopher McEvoy in his investigation and analysis of Mr. Nabi’s financial and accounting records.
17 Ms. Booker was the individual who recommended Mr. Nabi purchase PC Law as the accounting program to be used by Mr. Nabi’s law firm. He trusted her completely to properly prepare his accounting records and handle his firm’s monies. Her breach of trust caused him considerable shame and embarrassment. Her conduct resulted in the Law Society requiring Mr. Nabi to undertake not to apply for the return of his law license and as a result he is not permitted to use his Notarial Seal to earn retirement income. Mr. Nabi described his retirement and quality of life with his wife being adversely affected by Ms. Booker’s conduct. Mr. Nabi was interviewed by the probation officer who prepared the presentence report for Ms. Booker and he advised he was “completely stunned when he found out what [she] had done.” He advised Ms. Booker’s actions caused him immense pain and loss. Based on Mr. Nabi’s evidence, which I accepted, I find the impact on Mr. Nabi as a result of Ms. Booker’s fraud was substantial and continuing.
b. Yanet Diaz (Cernicharo)
18 Ms. Diaz provided a very detailed Victim Impact Statement (VIS) outlining the significant and devastating consequences to herself and her fiancée as a result of Ms. Booker’s conduct. When she received the Divorce Order from Ms. Booker in November 2014, after repeatedly calling and inquiring about the delay in preparing the uncontested divorce application and obtaining the Divorce Order, she believed she was legally divorced. She rekindled a relationship with a friend from high school, who was a U.S. citizen, and after three years they became engaged and set a wedding date for American Thanksgiving. Both Ms. Diaz and her fiancée travelled extensively back and forth during this period of time visiting each other and they hoped with their marriage they would no longer have to do this, as they intended to apply for her new husband to be able to live and work in Canada. In anticipation of their marriage Ms. Diaz purchased a home for them to live in once they were married. The timing of their marriage was critical as well because her fiancée intended to sponsor his son to come to Canada from Cuba. His son was turning 14 years old and they knew military service was mandatory in Cuba when his son reached 16 years of age.
19 Ms. Diaz described how she attended Welland Courthouse to obtain her marriage license only to learn that the Divorce Order provided by Ms. Booker was fabricated and false. She found out her uncontested divorce application had been administratively dismissed in January 2016, because no action had been taken since it was filed in 2013. She then tried to contact Mr. Nabi through Mr. George only to learn Mr. Nabi had retired, closed his practice and her file was no longer retrievable. She was forced to cancel her wedding days before it was to take place on November 23, 2017.
20 She had to hire a new lawyer to set aside the dismissal and obtain a true divorce order. This was not granted until August 7, 2018. The marriage occurred in November 2018 but it was too late for she and her husband to sponsor his son to come to Canada, as he was subject to mandatory conscription with the Cuban military. Her husband’s son spent a few years serving in the Cuban military. In addition, Ms. Diaz was forced to sell the home she had purchased, as they could not afford to maintain two houses and she ended up selling it at a loss.
21 Ms. Diaz described how she suffered psychological damage because of this and has been diagnosed with anxiety and depression and suffers from sleep difficulties. She sought counselling and is current taking anti-depressants. Based on Ms. Diaz’s evidence in the trial and her victim impact statement I find Ms. Booker’s fraudulent conduct towards Ms. Diaz had a significant and devastating impact upon her and her new husband, as well as her husband’s son, who lived in Cuba.
Circumstances of the Offender, Barbara Booker
22 Barbara Booker is 54 years of age, is married and has three children from her first marriage. I do not know any details respecting her children or grandchildren as the presentence report in my view was very sparse on providing details about Ms. Booker’s everyday life. Ms. Booker describes herself as a good mom and a great grandmother, although I do not even know how many grandchildren she has. She met her first husband in high school, after graduating from high school she worked in the service industry and then after having her children, she took on a homemaker role. After separating from her first husband she attended a Niagara region college in the law clerk program. She met her current husband in college in 1999 and they were married in 2004. They both described having a great marriage. Her husband is supportive of her and describes his wife as “simple, kind and hard-working.” Ms. Booker upon graduating has worked in three law offices from 2001 to 2015 as a law clerk, working for Richard Nabi between 2002 and 2014. Since 2015 to the present time Ms. Booker has been employed with Daniel & Partners as a real estate law clerk, which was verified by Callum Shedden, the lawyer she works directly for. Mr. Shedden described Ms. Booker as a “terrific employee, very professional and entirely trustworthy.” He was shocked by the charges and advised he would hate to lose her as an employee because of these charges.
23 The probation officer spoke to a number of Ms. Booker’s friends and her pastor, who all spoke about her in positive terms. She has pro-social friends, acquaintances and family. She is spoken of as a good friend. She is viewed by her employer as hardworking and she is trusted. She has no issues with substance abuse or alcohol. Both Ms. Booker and her husband described how she has had a difficult time since being charged and going through the court system. She did not advise the probation officer what she and her husband meant when they indicated she has had a difficult time since being charged. She advised the probation officer that she had no objection to counselling for her mental health although she had not taken any steps to investigate what the issues might be concerning her mental health.
24 The probation officer indicated she did not see any objections to community supervision, which I would assume is because Ms. Booker does not have any prior involvement with the criminal justice system. It is my view however that Ms. Booker was not particularly forthcoming with the probation officer preparing this PSR, despite my indicating to her when I ordered its preparation for her to cooperate and be forthright with the probation officer, as I knew very little about Ms. Booker’s life. Unfortunately Ms. Booker’s presentence report is quite brief, not very detailed and for the most part just skims the surface and does not provide a lot of insight into her motivation respecting her fraudulent behaviour towards her employer, Richard Nabi. This is in large part due to Ms. Booker’s refusal to discuss the charges and her maintaining she does not take any responsibility for the charges brought against her. As I will discuss later this raises concerns as to Ms. Booker’s rehabilitative potential, as well as concerns surrounding the imposition of a sentence that will specifically deter her from engaging in similar behaviour in the future.
Sentencing Principles to be Applied
25 The determination of a proper sentence in this case calls for consideration and balancing of the principles of sentencing which are set out in s. 718 to 718.2 of the Criminal Code as well as the aggravating and mitigation factors which exist.
26 Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:
• Denounce the unlawful conduct;
• Deter the offender, and others, from committing such an offence;
• Separate the offender from society, where necessary;
• Assist in the rehabilitation of the offender;
• Provide reparation for harm done to “victims”, or the community; and
• Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.
27 Section 718.1 of the Criminal Code requires the sentence to be proportionate to the offence and the degree of the offender’s responsibility.
28 A sentencing judge must also have regard for s. 718.2, which provides in s. 718.2(a)(i) that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. Section 718.2(a)(iii) provides where the accused abused a position of trust in relation to the victim, it is deemed to be an aggravating circumstance. Further, a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)); the combined duration of consecutive sentences should not be unduly long (718.2(c)); an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).
29 It should be emphasized that these sentencing principles do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.
30 The principle of parity under s. 718.2(b), which states a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances is an important and laudable objective but it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C. A.), [1996] 1 S.C.R. 500, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
(Emphasis added)
31 Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence they should not dominate the sentencing process. In R. v. Rawn, [2012] O.J. No. 3096 (C.A.), at paras. 29 and 30, the Ontario Court of Appeal cautioned that:
It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.
32 In cases of major large-scale frauds, general deterrence is the most important sentencing principle. There is also a need to emphasize denunciation in the case of large-scale frauds committed by persons in positions of trust with devastating consequences for their victims. Mitigating factors and rehabilitation become secondary. See R. v. Bogart(2002), 167 C.C.C. (3d) 390 (Ont. C.A.) at paras. 29-31, leave to appeal to S.C.C. refused, [2003] 1 S.C.R. vi; R. v. Dobis(2002), 58 O.R. (3d) 536 (Ont. C.A.) at para. 42; and R. v. Drabinsky and Gottlieb, 2011 ONCA 582, at paras. 160, 173, application for leave to appeal refused [2011] S.C.C.A. No. 491. Ms. Weiss submitted there is no legal definition of what a large scale fraud is but submitted, based on the caselaw,6 for a fraud to be a major large-scale fraud the amount should be at least $200,000.00. This case involves a serious breach of trust by an employee secretary/bookkeeper, involving close to or just slightly above $100,000.00. Regardless of whether this is a major large-scale fraud or not, the facts surrounding Ms. Booker’s fraud of her employer are egregious and were carried out over an extensive period of time, with devastating consequences and impact on the victims. In addition, it was a fraud perpetrated by an individual who was licensed by the Law Society to perform services in respect of the administration of justice and the Courts.
33 In R. v. McEachern(1978), 42 C.C.C. (2d) 189 (Ont. C.A.), Howland C.J.O. stated at p. 191, that “the most important principle in sentencing a person who holds a position of trust is that of general deterrence.”
34 In R. v. Bertram and Wood(1990), 40 O.A.C. 317, the Ontario Court of Appeal observed that most major frauds are committed — as this one was — by well-educated persons of previous good character. Thus the court held at p. 319,
The sentences in such cases are not really concerned with rehabilitation. Instead, they are concerned with general deterrence and with warning such persons that substantial penitentiary sentences will follow this type of crime, to say nothing of the serious disgrace to them and everyone connected with them and their probable financial ruin. [Emphasis added.]
See also Drabinsky, , at para. 160.
35 In R. v. Gray (L.V.) et al.(1995), 76 O.A.C. 387 at 398-99, Carthy J.A. again stressed the need for general deterrence in fraud cases:
…there are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from sentences given to others.
36 Although deterrence and denunciation are the most significant sentencing principles in cases involving a breach of trust contrary to s. 380(1)(a) of the Criminal Code, I recognize that those sentencing principles must not exclude a consideration of rehabilitation, particularly in the case of an offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence, which the Crown is seeking in this case. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis of the shortest possible sentence that will achieve the relevant objectives. In this case although Ms. Booker is not a youthful first offender, she is a first offender who has never received a custodial sentence.
37 I am also mindful of the principle of restraint reflected in R. v. Batisse, [2009] O.J. No. 452, at paras. 32 to 34, where the Ontario Court of Appeal held:
…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor — general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 CanLII 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
38 Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92).
39 Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse,[2015] S.C.J. No. 64 at para 12 explained:
…The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
40 The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko[2010] O.J. No. 2583, where at paragraph 90, the court held:
Sentencing ‘ranges’ …are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality… Individual circumstances matter.
41 In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”
42 All counsel provided me with numerous cases dealing with the sentencing of offenders convicted of fraud over $5,000 and uttering a forged document involving a breach of trust. I do not propose to set out summaries of each decision, although I have reviewed each case provided by counsel. Many of the cases provided by Mr. Singh were decided before the most recent amendments to s. 742.1, cases where a conditional sentence was still available for a fraud over $5,000 offence where a proportionate sentence was less than two years.7 Of the 25 cases provided by Mr. Singh, 19 involved guilty pleas and many made reference to exceptional circumstances in respect of the offender in those cases.
43 In 2012, s. 742.1 was amended such that offences, where the maximum sentence when proceeded by indictment was 14 years, were not eligible for a conditional sentence. As I will discuss below, in R. v. Sharma, [2020] O.J. No.3183 (C.A.), a majority of the Court of Appeal held this provision (s. 742.1(c)) was unconstitutional and consequently, a conditional sentence was now available. There have now been a number of sentencing decisions decided after R. v. Sharma, which allowed for conditional sentences to be imposed in cases where the maximum penalty was 14 years or more. Those decisions reflect the individualized process involved in determining a proportionate sentence tailored to the seriousness or gravity of the offence, the moral blameworthiness of the offender and the harm occasioned by the conduct. In some cases a conditional sentence was not imposed because it could not properly address the principles of denunciation and general deterrence and in other cases where there were extenuating or exceptional circumstances a conditional sentence was held to be consistent with the fundamental purpose and principles of sentencing.
Availability and Appropriateness of a Conditional Sentence
44 The defence submitted the appropriate, proportionate sentence in this case was a two year less a day conditional sentence pursuant to s. 742.1 of the Criminal Code where Ms. Booker would be subject to a house arrest condition for the entire conditional sentence. The conditional sentence provisions in the Criminal Code have been amended on a number of occasions since they were first introduced in 1996. The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. There are five prerequisites for the imposition of a conditional sentence as it relates to the offences Ms. Booker was convicted of.
1) The safety of the community would not be endangered by the offender serving the sentence in the community (s. 742.1(a));
2) The offence is not an offence punishable by a minimum term of imprisonment (s. 742.1(b));
3) The offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life (S. 742.1(c)); and
4) The court must impose a sentence of imprisonment that is less than two years (s. 742.1) and
5) The sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (s. 742.1(a)).
45 Under the current s. 742.1(c), a conditional sentence would not have been available to either Ms. Booker or Ms. Wyer because they were charged with fraud over, which carries a maximum sentence of 14 years where the Crown proceeded by way of indictment. However, recently the Ontario Court of Appeal held in R. v. Sharma, [2020] O.J. No.3183 (C.A.) that the provisions of s. 742.1, which restrict the availability of conditional sentences for Aboriginal offenders, for offences where the maximum penalty was 14 years or 10 years in the case of offences involving the import, export, trafficking or production of drugs, are contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and are not saved by s. 1. The majority of the Court of Appeal determined that the restriction on offences on which a conditional sentence could be imposed in cases involving an Aboriginal offender, prevented sentencing judges from giving effect to the mandate of s. 718.2(e). As a result, the majority held that ss. 742.1(c) and 742.1(e)ii of the Criminal Code unjustifiably infringed ss. 7 and 15 of the Charter and were, therefore, of no force or effect.
46 Although the facts in Sharma were specific to the disproportionate impact of these provisions on indigenous offenders, Justice Feldman, for the majority, concluded in paragraphs 180 and 181:
I would strike down ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. The Crown did not ask the court to declare the provisions inapplicable only to Aboriginal offenders if it found a breach. In my view, it is for Parliament to determine to what extent, if any, it may re-enact these provisions, bearing in mind the position of other offender groups potentially affected.
In oral argument, the Crown requested a suspended declaration of invalidity. The Crown has not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law: R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 98. Accordingly, I would apply the declaration of invalidity with immediate effect.
47 As a result of the Court of Appeal’s decision, a fraud over offence pursuant to s. 380(1)(a), proceeded by indictment, is no longer statutorily precluded from being eligible for a conditional sentence, although the Court of Appeal has made it very clear in subsequent cases8 that just because a conditional sentence is now available for offences where the maximum penalty is 14 years, it does not mean a conditional sentence must be imposed. In R. v. Gray, [2021] O.J. No. 626 (C.A.), at para. 44, the Court of Appeal held:
The fact that a conditional sentence is available does not mean that one will necessarily be imposed. The sentencing judge is still required to conduct an individualized analysis, considering all the relevant principles of sentencing and weighing the appropriate factors to determine a fit sentence.
48 There are no minimum terms of imprisonment for the offences facing Ms. Booker and Ms. Wyer.
49 In respect of Ms. Wyer, the Crown and Mr. Jamieson have agreed that the appropriate sentence is less than two years and they are jointly submitting the proportionate sentence to be imposed in her case is a conditional sentence of 10 months. In my view this joint position also supports the view that with respect to Ms. Wyer there is little concern that she present any risk to reoffend, which leads to an inference she will not endanger the safety of the community if she serves her jail sentence in the community. Further, the joint sentence proposed by Ms. Weiss and Mr. Jamieson presupposes a conditional sentence, having regard to Ms. Wyer’s circumstances, is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. Mr. Jamieson has provided Ms. Wyer’s medical records, which reflect that Ms. Wyer was diagnosed in April 2020 with breast cancer that was removed through surgery. She has received radiation treatment and was receiving it during the trial, which necessitated an adjournment one day because of its effects on her. In addition she suffers from co-morbid mental health issues and diabetes millitus. Mr. Jamieson provided a lengthy list of medications currently taken by Ms. Wyer, which is extensive. This was filed as an exhibit. It was clear from Ms. Weiss’ submissions respecting Emily Wyer that the Crown agreed with Mr. Jamieson that exceptional circumstances were present respecting Ms. Wyer.
50 I must still consider whether the appropriate sentence for Ms. Booker’s conduct is less than two years in custody. The Crown is seeking a total sentence of 30 months in the penitentiary for the two offences I convicted Ms. Booker of. If I determine a proportionate sentence requires a penitentiary sentence to be imposed this would disqualify her from receiving a conditional sentence under s. 742.1.
51 Ms. Booker is a first offender and the issue of whether restitution has been made to Mr. Nabi appears to have been settled through the civil proceedings relating to the fraud perpetrated against Mr. Nabi and his law practice. Mr. Singh also advised me he had monies in trust to make restitution to Ms. Diaz respecting her legal expenses incurred as a result of Ms. Booker providing her with the fake Divorce Order and her having to hire a lawyer to reopen her application that was dismissed because it was not completed and to then provide the necessary fees and documentation for the Divorce Order to be made. Another circumstance I take into account in assessing whether a proportionate and appropriate sentence for Ms. Booker would be a sentence less than two years is the collateral consequence of COVID-19 and the increased difficulties and hardship facing those persons who receive custodial sentences, which R. v. Morgan,2020 ONCA 279 has held should be considered by sentencing judges. In my view these mitigating circumstances (first offence and restitution being made) and the collateral consequence of COVID-19 persuade me that a penitentiary sentence would not be a proportionate and fit sentence, despite Ms. Booker’s conduct being a serious breach of trust towards her employer, Mr. Nabi, and his client, Ms. Diaz, as well as the breach of public trust respecting Ms. Booker’s professional and ethical responsibilities to the administration of justice. It is my view considering all of the mitigating and aggravating circumstances I discuss below that the total sentence to be imposed should not exceed a sentence of two years less a day.
52 I agree with the Crown’s submission that the sentences to be imposed respecting the two offences I convicted Ms. Booker of, namely fraud over and utter forged document, should be consecutive sentences, having regard to the fact that the victims of Ms. Booker’s conduct are separate and the criminal conduct she engaged in was quite different. It is also my view, applying the principle of totality that the combined sentence should not be greater than two years, as well as considering the decisions of the Ontario Court of Appeal in R. v. Borde, and R. v. Batisse,
53 It is my view the safety of the community, as this relates to whether Ms. Booker is likely to reoffend, would not be endangered if I were to impose a conditional sentence. She is a first time offender and has been on bail for approximately two years without committing any further criminal offences or breaching her terms of release and she is gainfully employed.
54 Therefore the final remaining issue to be determined is whether given the serious aggravating circumstances of Ms. Booker’s breach of trust towards Mr. Nabi and Mr. Nabi’s client, Ms. Diaz, a conditional sentence is consistent with the fundamental purpose and principles of sections 718 to 718.2. This will require a determination of whether a conditional sentence can adequately address the principles of deterrence and denunciation and the promotion of a sense of responsibility and accountability in offenders who commit a breach of trust, which are the paramount sentencing principles to be considered in this case. A further consideration in this case is the fact that Ms. Booker, as a licensed paralegal with the Law Society who owed a duty to act with integrity towards the Superior Court by protecting the administration of justice and its reputation in the community, instead breached that public trust when she provided a Divorce Order, purportedly approved by a Superior Court Judge, which she knew was false, to Ms. Diaz as if it were genuine and legal.
55 In R. v. Proulx, [2000] 1 S.C.R. 61, at paras. 47 and 127-#7, the Supreme Court directed that where the first number of pre-conditions of s. 742.1 are met, sentencing judges must give consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
56 At para. 22 of Proulx, the Supreme Court held a conditional sentence is can be a “punitive sanction capable of achieving the objectives of deterrence and denunciation” for many offences, although there may be circumstances where the need for denunciation and deterrence is so pressing that a custodial sentence in “real” jail must be imposed. In para. 127, #8, the Court held:
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.
(Emphasis added)
57 Initially the Supreme Court held in Proulx that a conditional sentence was in principle, although not always in practice, available for all offences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditional sentence option: R. v. Proulx, , at paras. 79-81 (see also R. v. Jacko, [2010] O.J. No. 2583 (C.A.), at para. 69). However, as a result of the various amendments to s. 742.1 since it was first introduced in 1996, a conditional sentence is no longer available for certain specified offences, including sexual assault, kidnapping, theft over and criminal harassment. As well, certain offences where the maximum sentence was 14 years or more were excluded, as were certain offences where the maximum sentence was 10 years (terrorism or criminal organization) or offences where the maximum sentence was 10 years that resulted in bodily harm, involved the import, export, trafficking or production of drugs or involved the use of a weapon. As discussed above, R. v. Sharma, , has ruled the exclusion of offences where the maximum is 14 years or more and offences where the maximum is 10 years that involved the import, export, trafficking or production of drugs from the conditional sentence regime was unconstitutional.9
58 Therefore, a conditional sentence, depending on the severity of the conditions, might nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles. Mr. Singh, recognizing the serious breach of trust committed by Ms. Booker, submitted the principles of denunciation and general deterrence could be met by imposing a house arrest condition for the entire length of a conditional sentence of two years less a day. He also submitted that his client was prepared as part of her conditional sentence and probation to complete 240 hours of community service as reparation to repay the community for her criminal conduct.
Determination of a Proportionate Sentence
59 There is no doubt that a conditional sentence is an available sentence to be imposed as a result of R. v. Sharma, ; however, this requires a consideration of the mitigating and aggravating circumstances present in this case to determine whether it is a sentence that is proportionate, addressing the gravity of the offence and the moral blameworthiness of Ms. Booker and consistent with the sentencing principles of denunciation and deterrence.
Mitigating and Aggravating Circumstances
60 Ms. Booker does not have a criminal record of any kind, which is a mitigating circumstance in determining a proportionate sentence. She has never served any time in a custodial facility.
61 I was advised by Mr. Singh that Ms. Booker has settled the civil action brought by Mr. Nabi and LawPro against her. The amount of the settlement was $40,000.00 and she also received a full and final release from the plaintiffs. However, it clearly states in the release that the settlement in no way shall be deemed as an admission of any wrongdoing by Ms. Booker. As a result, this means there is no remorse or acceptance of responsibility on the part of Ms. Booker for the fraudulent conduct I found her guilty of respecting Mr. Nabi and Ms. Diaz. In fact, Ms. Booker made it clear to the probation officer in the PSR that she “does not take responsibility for the charges brought against her” and she refused to discuss the offences. Of course this is her right to maintain this position, however, she is unable to claim the mitigating benefit of a guilty plea. It also makes it difficult to fashion a sentence which addresses Ms. Booker’s potential rehabilitation to prevent similar conduct in the future. Further, specific deterrence remains a sentencing principle that needs to be addressed in the sentence imposed to discourage Ms. Booker from engaging in similar behaviour and conduct in the future. It is clear from the caselaw; however, lack of remorse is not an aggravating circumstance to consider on sentencing and I do not consider it as such, (see R. v. Giroux(2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68; R. v. Valentini(1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at para. 82).
62 It is my view Ms. Booker’s settlement with Mr. Nabi, despite not repaying the total loss to Mr. Nabi, has provided full restitution to him based on his signing the full and final release, which stipulates that he cannot seek any further monies from Ms. Booker respecting the losses he suffered. Mr. Singh also advised he has monies in trust to cover the restitution of Ms. Diaz’s expenses created by the fake Divorce Order given to her by Ms. Booker. His instructions are to provide this money to the Court as restitution for Ms. Diaz. Payment of restitution is a mitigating circumstance that I will consider in this case in determining a proportionate sentence.
63 Ms. Booker provided a number of character letters reflecting her previous good character and trustworthiness. While this is normally a mitigating circumstance and reflects favourably on an offender’s rehabilitation prospects, s. 380.1(2) of the Criminal Code now directs that a court “shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.” This provision codifies what fraud cases have long recognized that it is often prior good character that enables frauds involving a breach of trust to be perpetuated. Justice Laskin in R. v. Bogart, . 30, stated “mitigating factors and even rehabilitation become secondary” when dealing with sentencing in breach of trust fraud cases. The Ontario Court of Appeal has repeatedly recognized that most breach of trust frauds are committed by well-educated persons of previous good character.10
64 As discussed previously, the sentencing principles of general deterrence, denunciation and the promotion of a sense of responsibility and accountability in offenders who commit a breach of trust are the paramount considerations in determining a proportionate sentence in breach of trust fraud cases. The fact Ms. Booker exploited the relationship of trust she had with Mr. Nabi over an extended period of time is a statutorily aggravating feature in this case (ss. 718.2(iii) and 380.1(1)(a)). Similarly, she breached the trust relationship she had with Ms. Diaz, as Mr. Nabi’s law clerk, as she knew because of her training what documentation was necessary for her to prepare and file with the Superior Court and what the required fees would be in order to obtain the Divorce Order. I found Ms. Booker lied to and misled Ms. Diaz as to why the application was taking so long. To appease Ms. Diaz and to prevent Ms. Diaz from complaining to Mr. Nabi about Ms. Booker’s work, Ms. Booker reimbursed Ms. Diaz’s legal fees, including the monies for the required fees. Ms. Booker maintained her fraudulent conduct towards Ms. Diaz for many months and made false entries in the PC Law accounting records to hide her actions from Mr. Nabi.
65 Ms. Booker’s fraudulent behaviour respecting the Wyer estate and the cheques she wrote to Emily Wyer extended from February 2013 to August 2014, approximately 18 1/2 months. This is a significant period of time for Ms. Booker to engage in fraudulently breaching the trust Mr. Nabi placed in her. In fact, Mr. Nabi upon being advised the $125,000.00 Wendler cheque, which he believed was still outstanding when he retired, had actually been received and deposited into Mr. Nabi’s trust account, he sought out Ms. Booker’s assistance in trying to determine how this mistake was made.11 Throughout this 18 1/2 month period of time Ms. Booker engaged in making false entries between different files within Mr. Nabi’s PC Law and accounting records to hide her actions. Trust and General cheques were written to Emily Wyer and other beneficiaries of the Wyer estate for more than 14 months prior to the insurance proceeds even being received and deposited into the Nabi Trust Account. In my view Ms. Book’s fraud was planned and sophisticated and her actions were designed to prevent Richard Nabi from ever becoming aware of her fraudulent conduct. These circumstances are an aggravating factor pursuant to s. 380.1(1)(a). This also applies to the lengthy period of time (14 months) Ms. Booker strung Ms. Diaz along before providing her with the false Divorce Order.
66 Ms. Booker only stopped engaging in these fraudulent activities because of Mr. Nabi’s retirement at the end of 2014. This is not a case where Ms. Booker stopped of her own volition and advised her employer of what she had done. Mr. Nabi only became aware of Ms. Booker’s fraudulent conduct as a result of Margaret Hoy, the lawyer he gave the Wendler file to in order to pursue the amount of $125,000 he believed was still owing to his client Ms. Wendler, advising him that Ms. Wendler’s son’s lawyer had provided her with a cancelled cheque and deposit slip showing the $125,000 had been sent to Mr. Nabi’s firm and deposited to Mr. Nabi’s trust account. The deposit slip was prepared by Ms. Booker, who arranged for Ms. Horn, a part-time employee of the law firm, to make the deposit. This information caused Mr. Nabi to have to retain an accountant to examine and determine where this $125,000 went, which led to his uncovering Ms. Booker’s fraudulent conduct involving Ms. Wyer, applying to have Ms. Wyer appointed as her deceased brother’s estate trustee in Toronto Superior Court, ultimately writing over 140 cheques, the majority to Ms. Wyer and making false entries in her employer’s books and records to hide her actions.
67 In my view Ms. Booker’s fraudulent actions had a significant impact on Mr. Nabi in terms of causing him financial loss and expenditures12 to discover where this $125,000 cheque to the Wendler file had been deposited and why he believed when he retired in 2014 that it was still outstanding. He only discovered the answer to this after he hired a computer expert to get into his PC Law records and after hiring an accounting firm to reconstruct where this money had gone. Mr. Nabi spent over $27,000.00 to find out where the money from the Wendler cheque had gone. The accountant he hired, Kristopher McEvoy, determined Ms. Booker utilized the money from the Wendler cheque to provide payments to Ms. Wyer and the other beneficiaries of the Wyer estate for 14 months, prior to the insurance cheque being paid.
68 Ms. Booker’s conduct towards Mr. Nabi was also done at a time he was winding down his law practice preparing for his retirement. Ms. Booker’s fraudulent conduct adversely affected Mr. Nabi’s enjoyment of his retirement with his spouse, as reflected in his VIS. As a result of Ms. Booker’s fraudulent actions Mr. Nabi was required to self-report to the Law Society respecting his employee’s conduct. Mr. Nabi’s reputation suffered as a result of Ms. Booker’s actions, as he was ultimately required by the Law Society to undertake not to return to practicing law in any way. This prevented him from acting as a Notary Public, which he had intended to do after his retirement, as a source of income.
69 Ms. Booker’s fraudulent conduct towards Ms. Diaz breached the trust Mr. Nabi had placed in Ms. Booker to obtain the uncontested Divorce Order for Ms. Diaz and do this in a timely and professional fashion. It should be noted that Mr. Nabi is also being sued by Ms. Diaz for $450,000 because he failed to properly supervise Ms. Booker’s law clerk/paralegal work. In my view this occurred directly as a result of the high level of trust Mr. Nabi had placed in Ms. Booker’s skills and work. When the fraud respecting Ms. Diaz came to light Mr. Nabi, as was required, self-reported to the Law Society. This did not occur until after Mr. Nabi had retired and he had reduced his insurance coverage.
70 Ms. Booker’s conduct respecting the false Divorce Order she provided to Ms. Diaz and her actions respecting her deliberate false entries in the PC Law accounting system attempting to disguise her fraudulent conduct was a breach of trust respecting Ms. Diaz herself. Ms. Booker’s knowledge that she was providing Ms. Diaz with a Divorce Order she knew was fabricated meant she also knew if Ms. Diaz attempted to use this fake Divorce Order to obtain a marriage license in the future a marriage license would not be issued, which potentially would have far-reaching negative consequences to Ms. Diaz. This is exactly what occurred and this caused significant hardship to Ms. Diaz, her fiancée, who had hoped Ms. Diaz would be able to sponsor him to emigrate to Canada to reside and work such that they would be able to afford the house Ms. Diaz had purchased. Ms. Booker’s fraudulent conduct also meant Ms. Diaz’s fiancée’s sponsorship of his son’s immigration to Canada was delayed, which resulted in his son having to serve in Cuba’s mandatory military conscription. It is my view that the consequences and hardship caused to Ms. Diaz and her family were particularly devastating and severe.
71 The significant impact caused to both Mr. Nabi and Ms. Diaz and her family members in this case is a statutorily aggravating factor on sentence (s. 380.1(1)(c.1) and s. 718.2 (a) (iii.1)).
72 Finally, Ms. Booker’s fraudulent behaviour was also a breach of trust respecting her obligations and responsibilities to the Superior Court as someone who was licensed by the Law Society as a paralegal. Her conduct directly reflected negatively on the public’s respect for the administration of justice and the courts. She provided a false, fabricated Divorce Order, purportedly approved of by a Superior Court Judge, to a member of the public who had hired a law firm to obtain for her a legal divorce. Ms. Booker breached that trust and she breached her professional obligations and responsibilities to both the Court and to the Law Society of Ontario (at the time of the uttering forged document — The Law Society of Upper Canada). This is also a statutorily aggravating factor pursuant to s. 380.1(1)(e).
Analysis
73 A case that is very similar to Ms. Booker’s case is R. v. Piccinini, [2018] O.J. No. 2390 (C.A.). In that case the appellant worked as a bookkeeper for a lawyer and over the course of three years stole almost $50,000.00 from him. The appellant testified during her trial that the monies had been legitimately paid to her for files she had brought to the lawyer’s firm as a result of her work as a paralegal. The trial judge did not accept the appellant’s evidence. This is similar to what occurred in Ms. Booker’s case, where her testimony, which I rejected, blamed Mr. Nabi. In Piccinini, the Court of Appeal upheld the 12 month custodial sentence imposed by the trial judge as this was a breach of trust, almost $50,000 was stolen and the conduct went on for almost three years. The trial judge considered the appellant’s father and brother’s health and determined it did not amount to exceptional circumstances. Further, the fresh evidence admitted concerning the brother’s further health issues did not materially change that assessment when it was considered by the Court of Appeal. The sentencing Judge and the Court of Appeal found the circumstances involving Ms. Piccinini’s family member’s health were not exceptional.
74 In R. v. Mathur, [2017] O.J. No. 2559 the Ontario Court of Appeal upheld the sentencing judge’s refusal to impose a conditional sentence as it was inconsistent with the principles of denunciation and deterrence. The appellant was an account and real estate broker and he had used his clients’ social insurance numbers to make fraudulent claims without their knowledge to Revenue Canada. He attempted to defraud the Government of Canada for over $300,000 but only received $35,321. The Court of Appeal agreed the aggravating circumstances were such that a conditional sentence would not be a proportionate sentence. The 12 month custodial sentence was upheld.
75 Another Court of Appeal decision, R. v. McLellan, [2012] O.J. No. 5028 upheld the finding of the trial judge that a conditional sentence was not a proportionate sentence considering the aggravating circumstances present in that case. In this case the appellant was a lawyer who fraudulently obtained a mortgage on an employee’s house, which involved his forging and uttering false documents. The trial judge did not accept the appellant’s evidence blaming the employee and recognized the significant breach of trust committed by the appellant lawyer as well as the impact his fraudulent conduct had on the community. The trial judge also commented on the appellant’s lack of remorse and insight as to his conduct in considering the appropriateness of a conditional sentence, which was found to be a proper consideration by the Court of Appeal. Tulloch, J. held for the Court:
Lack of remorse and insight are factors that the trial judge was entitled to take into account in considering the appropriateness of a conditional sentence: see R. v. Nguyen, [2006] O.J. No. 796 (C.A.); R. v. T.R.J., [2004] O.J. No. 1286 (C.A.). The presence or absence of remorse and an assessment of whether an individual displays insight into his or her offending conduct are relevant considerations for a trial judge in deciding whether a conditional sentence will be consistent with the purposes and principles of sentencing.
76 It is my view the facts in McLellan are similar to Ms. Booker’s case. As I’ve indicated Ms. Booker was a paralegal law clerk licensed by the Law Society and she provided a fabricated, false Divorce Order knowing it was not a properly executed Court Order signed by a Superior Court Judge, where she knew she had not filed the required documents for a Judge to review so the Divorce Order could be signed and issued nor had she paid the second required fee to the Superior Court. In the McClellan decision Justice Tulloch cited Doherty J.’s judgment in R. v. Rosenfeld, 2009 ONCA 307, 94 O.R. (3d) 641, at para. 40 respecting the egregious nature of Mr. McClellan’s breach of trust as a lawyer and his duty to the administration of justice:
[A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).
77 Ms. Booker is not a lawyer but she was employed by a lawyer as a law clerk, performing work often done by a lawyer. Further, she was dealing with and providing information and documentation to the Superior Court in an uncontested Divorce Application, where the goal was, if all the appropriate and proper documents necessary were filed and all fees were paid to the court, a legal Divorce Order would be obtained and provided by Ms. Booker to Ms. Diaz. Ms. Booker knew she had not completed the necessary documents or filed them with the court and she also knew she had not paid the second fee to the Court. Instead, she concealed this by making false entries in the PC Law accounting program to hide these facts from Mr. Nabi. Further, she reimbursed Ms. Diaz the fees Ms. Diaz had paid Mr. Nabi at their meeting because of the delays she had created. This was for the purpose of persuading Ms. Diaz not to complain about these delays to Mr. Nabi. In my view this is a significant additional aggravating factor to be considered when considering whether a conditional sentence adequately addresses the principles of denunciation and deterrence
78 In many of the precedents where conditional sentences have been imposed for significant breach of trust fraud over $5000 offences the predominate factor favouring the imposition of a conditional sentence has been the presence of exceptional circumstances. In most cases where a conditional sentence has been imposed the defendant has pleaded guilty, demonstrated remorse and accepted responsibility for their conduct, as well there being exceptional or unique circumstances present, where for example a defendant suffered from a diagnosed mental health issue, such as a gambling addiction or depression or anxiety. Many defendants suffered from serious addiction to alcohol or drugs or they were facing significant financial difficulties or pressures, which were held to provide exceptional circumstances. In R. v. Atwal, [2016] O.J. No. 3109, (SCJ), at para. 40, Hill J., in an exhaustive summary of sentencing cases where there is a breach of trust fraud, made this observation:
While a conditional sentence, with properly tailored punitive conditions, can effect a measure of general deterrence and denunciation, many of these cases where a conditional sentence was appropriate involved pleas of guilt and/or certain exceptional mitigating circumstances.
See also R. v. Collins, [2011] O.J. No. 978 (C.A.), at paras. 40-43; R. v. Taylor,[2012] O.J. No. 547 (C.A.). at paras. 35-36; R. v. Roberts, [2017] O.J. No. 823 (SCJ, Broad), at paras. 58-63; R. v. Davies, [2016] O.J. No. 3754 (OCJ, Horkins), at para. 12; R. v. Taverner, [2017] O.J. No. 3658 (OCJ, Bourgeois), at paras. 55-58.
79 In R. v. Pierce, , the appellant was the controller of her employer’s fashion company and she was responsible for the company’s financial operations, including the maintenance of the books of accounts, the allocation of monies to various accounts, as well as the payment of the company’s obligations. Ms. Pierce also had co-signing authority on cheques.13 The trial judge rejected her evidence that the cheques she wrote, purportedly to a supplier, were authorized by her superiors. The amount of her fraud was $270,000 and occurred over a two year period of time. Her fraud was discovered by a general manager when Ms. Pierce was away and following an independent review she was dismissed. The trial judge found Ms. Pierce was not a credible witness and sentenced her to a 21 month custodial sentence. The appellant appealed her conviction and sentence. The conviction appeal was dismissed; however the sentence appeal was partially allowed. Section 742.1 had been added to the Criminal Code after the sentence was imposed by the trial judge and the appellant submitted the appropriate sentence was a 12 month conditional sentence. Justice Finlayson reduced the custodial sentence to 12 months but refused
48 …the application to permit the appellant to serve the sentence in the community. The abuse of a position of trust or authority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines under s. 718.2. This factor has traditionally drawn a severe custodial term even with first offenders. I do not believe that this court should exercise its discretion in favour of having the appellant serve her sentence in the community where, as here, the trial judge has clearly stated his concerns as to how a non-custodial term would be viewed by the community. Despite the passage of s. 742.1, the principles of general deterrence and public denunciation require a custodial term in these circumstances.
80 In a recent decision, R. v. Wapoose, [2021] O.J. No. 5794 (SCJ, Newton)14 , a 12 month conditional sentence was imposed for an Indigenous defendant who was charged with a breach of trust fraud over, respecting his employment at the Anishnawbe Mushkiki Health Clinic in the amount of $59,901.70. The sentencing judge considered the guilty plea, no criminal record, the impact on the clinic, the sentences imposed on the two co-defendants who were more involved in the fraud (18 month and 12 month custodial sentences respectively) and the fact Mr. Wapoose, age 64, had significant health issues, had previously suffered a heart attack and had suffered kidney failure a number of years previous to the fraud and was required to attend dialysis three times a week at the hospital, in determining that a conditional sentence was consistent with the fundamental purpose and principles of sentencing. Gladue principles were considered in this decision as well as the significant medical issues as exceptional circumstances. The Sharma decision meant that a conditional sentence was available as a sentencing option to be imposed.
81 In R. v. Charles, [2021] O.J. No. 806 (SCJ, Roberts) a conditional sentence was rejected as a proportionate sentence, as it did not adequately address the principles of denunciation and deterrence in respect of a charge of trafficking in cocaine where the defendant was found guilty after a trial. The trial judge found the evidence for the Crown was overwhelming and Mr. Charles was not able to claim the mitigating benefit of a guilty plea or acceptance of responsibility for his actions. Further, there were no exceptional circumstances, despite this being Mr. Charles’ first offence. Justice Roberts distinguished Mr. Charles’ case from another trafficking case, R. v. De Souza, 2020 ONCJ 372, where Mr. De Souza pleaded guilty at an early opportunity, “forgoing the opportunity to pursue Charter arguments that had some merit” and where Mr. De Souza was the primary care giver for his father who had Parkinson’s disease and dementia, providing “day-to-day support.” In R. v. De Souza there was a guilty plea and what the sentencing judge termed to be exceptional circumstances.
82 Mr. Singh conceded in his written submissions that a “person who is in a position of trust that steals from an employer shall expect a term of imprisonment absent exceptional circumstances.”15 He argued Ms. Booker faced “exceptional/unique circumstances” in an attempt to establish why she should receive a conditional sentence. Mr. Singh referred to Ms. Booker’s difficulty with her eyesight — not being able to see without her eyeglasses — as leaving her “in a vulnerable position if she were incarcerated, particularly sleeping at night or while showering” which he submitted was an exceptional/unique circumstance. He suggested if Ms. Booker were to be attacked while in custody, she would not be able to defend herself. No medical evidence or evidence from a custodial institution was led by Mr. Singh to support this submission. It is my view Ms. Booker’s difficulty with her eyesight is a condition that many individuals who are incarcerated have to contend with. The custodial institution has the responsibility of protecting any inmate in their custody and I do not have any evidence to suggest Ms. Booker would be the victim of an attack by other inmates. The offences she has been convicted of would not create that danger for her based on my knowledge and understanding of prison culture. It is my view Ms. Booker’s eyesight difficulties do not amount to exceptional circumstances that would reduce her moral blameworthiness to such an extent that a conditional sentence would adequately address the need to denounce her fraudulent conduct and effectively deter others from engaging in the type of breach of trust committed by Ms. Booker in respect of her employer, her employer’s client and her breach of the public trust respecting her professional and ethical responsibilities to the administration of justice.16
83 The Crown provided four cases respecting the offence of uttering a forged document. These four sentencing cases reflect “the individualized process involved in determining a proportionate sentence tailored to the seriousness or gravity of the offence, the moral blameworthiness of the offender and the harm occasioned by the conduct” (see R. v. M. (C.A.), supra, at para. 92). The first case involved a paralegal who was sentenced to 2 years less a day in jail, after a trial, for fraud over $1000, fabricating divorce documents for a client, and attempting to obstruct justice, R. v. Neil, 2002 CarswellAlta1663 (Alta Queen’s Bench). The accused had a related record which included perjury and fraud, the details of which were not disclosed in the reasons for sentence. No exceptional circumstances were noted.
84 R. v. D’Souza and D’Gama, [2017] O.J. No. 5725 (SCJ, O’Marra) is a case where the two accused were charged with utter forged document, obstruct justice and fraud over $5000. The two accused, who were the plaintiffs in a civil action, prepared a forged ex parte motion judgment purportedly under the signature of Mr. Justice Michael Penny of the Superior Court of Ontario and presented it to the defendants as if it were genuine. The defence lawyer upon examining the ex parte judgment believed it was peculiar and contacted Justice Penny directly. Justice Penny ordered the plaintiffs to appear before him and bring the original motion record, which would have had his endorsement but they were unable to provide this document. Justice Penny ruled he had never seen the ex parte motion or the plaintiffs previously and he did not sign the judgment. After a trial before a jury they were both found guilty. Mr. D’Souza had a record for attempted fraud, personation with intent, attempt to utter a forged document and forgery when he was a paralegal, for presenting a forged order under the signature of the court registrar for the release of $1.5 million. He received a two year sentence for those offences. He also had a record for fraud and forgery for an attempted fraud on a bank. He received a three year penitentiary sentence from Justice O’Marra. His co-accused, Mr. D’Gama, who was Mr. D’Souza’s nephew, did not have a criminal record. He assisted in the care giving of Mr. D’Souza’s dependant adult daughter who had Downs Syndrome. Justice O’Marra referred to Mr. D’Gama as having otherwise led a pro-social life, was actively involved in the community, as well as being gainfully productive and although his conduct called for a period of custody he was “of the view the principles of deterrence, denunciation and rehabilitation could be achieved by imposing conditions of house arrest during the term of the order.” Justice O’Marra also pointed to the fact that such a sentence would permit Mr. D’Gama to continue caring for his elderly parents and his co-accused’s disabled daughter. A two year less a day conditional sentence was imposed. There is an addendum to the reasons for sentence that Mr. D’Gama himself experienced a serious health issue for which he was hospitalized just before his sentencing date and his sentence was delayed by a month and a half when Justice O’Marra imposed the conditional sentence. In my view Justice O’Marra by his sentence for each accused recognized that Mr. D’Souza because of his cognate criminal record played a more significant role in the commission of the offences than Mr. D’Gama. Further Justice O’Marra recognized there were exceptional circumstances present for Mr. D’Gama, which addressed the potential for rehabilitation on his part and as a result imposed a conditional sentence despite the serious aggravating circumstances. Further, in my view this was not a case involving the kind of breach of trust existing in Ms. Booker’s case.
85 A somewhat similar case to the facts present in Ms. Booker’s case is R. v. Shaw, [2012] A.J. No., 1024 (Alta. Prov. Ct., Fradsham). In that case the accused in the context of a divorce proceeding created a false Order, containing a forged signature of a judge, for the release of $125,000 to her by the law firm that held in trust the proceeds of sale from the matrimonial home. After a guilty plea the accused, with no record was sentenced to 12 months in prison and 18 months probation for the offences of obstruction of justice, attempted fraud over and uttering a forged document in recognition of the primary sentencing principles of deterrence and denunciation. The offender had significant psychological and psychiatric difficulties, however, the conduct was calculated and required the application of significant skill, motivated by the desire for personal gain. Although the sentencing judge found there were exceptional circumstances he determined the paramount principles of deterrence and denunciation could not be achieved through the imposition of a conditional sentence.
86 In the final case provided by Ms. Weiss, R. v. Bradley, 2018 MBPC 28, the accused lawyer forged a court order and court filings to lie to his client concerning the status of the client’s civil action. The sentencing judge recognized the accused’s early guilty plea, lack of a criminal record, however, the fact that the accused misused his legal expertise, which “constituted a huge breach of trust,” the sentencing judge rejected a conditional sentence holding it was not consistent with the fundamental principles of general deterrence and denunciation.
87 A recent decision in Ontario, R. v. Morton, [2019] O.J. No. 4592 (OCJ, Borenstein) involved James Morton, a prominent lawyer for 30 years with no criminal record, who created a phony Divorce Order respecting his current wife, which he showed his mistress (a paralegal employed with his law firm), who he had asked to marry. Their wedding date had to be adjourned because he had not obtained a Certificate of Divorce from the Superior Court, which was required to obtain a marriage license from City Hall. His fiancée kept asking him if he had obtained the Certificate of Divorce so he could apply for the marriage license and he kept assuring her it was in process. As the new wedding date was fast approaching Mr. Morton’s fiancée gave the phony Divorce Order Mr. Morton had drafted to the law firm’s student who took it to the Superior Court to obtain the Certificate of Divorce. The clerk of the court realized something was wrong, as the file number on the Order did not exist, the name of the Judge whose signature appeared on the Order was different from the name of the Judge that was typed on the Order. The clerk told the student a Certificate of Divorce could not be issued until the file was located. The student told Mr. Morton’s fiancée who in turn told Mr. Morton. Mr. Morton said he would take care of it. The court office concluded the Divorce Order was fraudulent and the police were contacted. The police spoke to the lawyer whose name was on the Order and he told the police he had not represented Mr. Morton to obtain this Order. The police spoke to Mr. Morton’s wife, who was a Justice of the Peace in York Region and she told them she and Mr. Morton were still married and were not divorced. On the same date these investigations were occurring Mr. Morton attended Hamilton City Hall with a Certificate of Divorce he had forged and applied for a Marriage License. In that application he declared he was divorced. A marriage license was issued to him. The video in the City Hall confirmed Mr. Morton had attended to obtain this marriage license. The police spoke to Mr. Morton’s wife again and she advised that she and Mr. Morton did not know why anyone would create a fake Divorce Order. The police contacted Mr. Morton to interview him but he advised he could not attend to be interviewed for a number of days. In the interim Mr. Morton married his fiancée in a wedding ceremony before many guests. The student had sent the police the wedding invitation and later sent photographs of Mr. Morton in a tux and his fiancée in a wedding dress getting married. When the police finally interviewed Mr. Morton about two weeks after they first spoke to him, he told them he was married to his wife and had not filed for divorce. When the police showed Mr. Morton the invitation and photographs of the wedding Mr. Morton ended the interview. He was then charged with bigamy and creating a forged Divorce Order. Mr. Morton pleaded guilty to both of these charges. At the time of sentencing he had been suspended by the Law Society of Ontario and his lawyer advised he was not intending on practicing law in the future. A psychological assessment and report was completed and provided to the Court indicating Mr. Morton was depressed, anxious, emotionally exhausted and pre-occupied with feelings of worthlessness. The Crown sought a six month jail sentence to be served in the community. The defence sought a conditional discharge. Both Mr. Morton’s wife and former fiancée wrote victim impact statements outlining the horrendous deception and humiliating impact Mr. Morton’s conduct had on each of them. Justice Borenstein also made reference to the aggravating factor of Mr. Morton’s dishonest manipulation of the court system and he cited with approval Justice Doherty’s comments in Rosenfeld, Justice Borenstein imposed the 6 month conditional sentence requested by the Crown. It is my view this sentence could be viewed as a proportionate sentence in light of Mr. Morton’s guilty plea and exceptional circumstances relating to Mr. Morton’s psychiatric difficulties. A real jail sentence would also in my opinion have been an equally proportionate, fit sentence, particularly having regard to the serious breach of trust by Mr. Morton towards the administration of justice and the Superior Court, in addition, to the breach of trust respecting his wife and his fiancée.
88 In a recent sentencing decision, R. v. Doering, [2020] O.J. No. 3960 (SCJ),17 at paras. 73-74, Justice Pomerance made the following observations respecting conditional sentences:
73 While theoretically available for any crime (subject to statutory bars), there are some crimes that rarely attract a conditional sentence. These include drug importation and financial crimes involving a breach of trust. What is it that distinguishes those crimes? How does one determine whether deterrence and denunciation can be adequately addressed through a conditional sentence?
[Emphasis added]
74 The answer lies in the court’s assessment of the gravity of the offence and the circumstances of its commission. While there is no bright line rule, the court must assess the degree to which punitive objectives are paramount. As it was put in R. v. Proulx, at para. 114: “Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction”.
89 Justice Pomerance then referred to the Proulx decision, paras. 113-116, which dealt with the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and how sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. In Proulx, Lamer, C.J. held at para. 113:
…Where a combination of both punitive and restorative objectives can be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.
90 There is nothing in the evidential record before me that Ms. Booker’s rehabilitative potential is such as to favour the conclusion that this is a sentence where a combination of both punitive and restorative objectives may be achieved (see Proulxat para. 113). There is no evidence she has any remorse or has accepted responsibility for her conduct, in fact, the evidence demonstrates she does not. There is no evidence she has any insight into her fraudulent behaviour. In short, this is one of those cases where the punitive objectives of denunciation and deterrence are particularly pressing, and incarceration is the preferable sanction (see Proulxat para. 114). Further, as indicated by the Court of Appeal in R. v. McClellan, supra: “The presence or absence of remorse and an assessment of whether an individual displays insight into his or her offending conduct are relevant considerations for a trial judge in deciding whether a conditional sentence will be consistent with the purposes and principles of sentencing.” Ms. Booker is not remorseful, she does not have any insight into her offending conduct and as such it is impossible to determine what conditions in a conditional sentence would assist in her rehabilitation. In my view the principle of deterrence is particularly pressing in this case, as only a custodial sentence will bring home to Ms. Booker the seriousness of her fraudulent conduct and the harm it caused to her victims. In addition, it is my view if I were to impose a conditional sentence in the case of an offender who does not believe they have done anything wrong, this would send the wrong message to other individuals in a position of trust and would not act as a deterrent in preventing them not to engage in similar behaviour. It is my view from the cases that general deterrence is a significant useful sentencing principle in sending the message to those in positions of trust if they breach that trust then the consequence will most often be a custodial sentence of imprisonment.
91 Consequently, I have decided a conditional sentence is not a fit or proportionate sentence considering the mitigating and aggravating circumstances I have referred to above that exist in Ms. Booker’s case. There are no mitigating personal circumstances capable of reducing Ms. Booker’s moral blameworthiness. The aggravating circumstances I have described are extremely serious and as a result this case calls for a real jail sentence. In my view a custodial sentence is necessary to adequately address the paramount sentencing principles applicable of denunciation and deterrence, both specific and general as well as the promotion of a sense of responsibility and accountability in offenders who commit a breach of trust.
92 Mr. Singh also submitted that the COVID-19 pandemic should be considered as an exceptional/unique circumstance and he cites Justice Pomerance’s decision in R. v. Hearns, [2020] O.J. N. 1648. As I indicated previously, COVID-19 is a collateral consequence a sentencing judge should consider, which I have already taken into account in determining that a proportionate sentence for Ms. Booker’s fraudulent conduct should not be greater than a two years less a day sentence, which opened up the possibility of a conditional sentence. Justice Pomerance in R. v. Doering, , revisited her decision in Hearn respecting the appropriate consideration to be given to an individual serving a custodial sentence during the COVID-19 pandemic:
82…concern over COVID-19, and the increased risk of transmission in jails, militates against incarceration. I am sympathetic to concerns about the risk of transmission of the virus in custodial settings, where physical distancing is invariably more difficult. I took judicial notice of such risk factors in R. v. Hearns, 2020 ONSC 2365, finding that they could, in some cases, reduce the length of the sentence to be served. However, I also ruled in Hearns that the pandemic does not operate as a “get out of jail free card”. While it may result in a reduction of sentence, it cannot make an unfit sentence fit. It permits some deviation from proportionality, but cannot sanction that which is truly disproportionate.
83 While COVID-19 is a serious consideration, it has not produced a moratorium on incarceration. Nor would such a result be feasible or desirable. The information note filed by the Crown reveals that Ontario institutions have taken very seriously their obligation to protect the health of persons in custody. I must presume that those efforts will continue. The virus is likely to increase restrictions on liberty within institutions, in order to keep people safe. Cst. Doering will also face protective restrictions given his former position in law enforcement. Whether a function of the virus, or Cst. Doering’s status, restrictive measures increase the punitive impact of incarceration. This warrants a reduction in sentence, but does not take it out of the custodial context.
93 I adopt these comments by Justice Pomerance as well as the caution expressed by the Ontario Court of Appeal in R. v. Morgan, , and R. v. Lariviere, [2020] O.J. No. 2264 (C.A.). It is my view any further reduction in the sentences I am imposing would cause the sentence to be disproportionate and unfit.
Sentence Imposed for Barbara Booker
a. Fraud Over $5,000
94 As I indicated the combined sentence for Ms. Booker’s fraudulent behaviour should not be greater than two years less a day, having regard to the fact she is a first offender, she has made restitution respecting both offences and in consideration of the collateral consequence of COVID-19 and the increased risks associated with this disease for individuals who are sentenced to custodial sentences. I have also considered the sentencing principle of totality and the sentencing principle of restraint as expressed in R. v. Borde and R. v. Batisse from the Ontario Court of Appeal.
95 Consequently, on the charge of fraud over $5,000.00 I am guided by the cases I have discussed above. I conclude a range of 12-18 months in a custodial facility is a fit and proportionate range of sentence, which reflects the mitigating circumstances referred to and also reflects the serious aggravating circumstances surrounding Ms. Booker’s fraudulent conduct, which I have described above in detail. Taking into account the fact this is a first jail sentence for Ms. Booker, as well as the COVID-19 pandemic concerns, I am imposing a 12 month custodial sentence.
b. Uttering Forged Document
96 On the charge of uttering a forged document relating to the false Divorce Order, I am guided by the cases discussed above and as indicated previously, it is my view the sentence imposed for the utter forged document should be consecutive to the 12 month custodial sentence I found was a proportionate sentence for the fraud over offence. The circumstances surrounding Ms. Booker’s fraudulent behaviour was a breach of trust respecting Mr. Nabi and his client Ms. Diaz. There was the serious aggravating circumstance that Ms. Booker’s fraudulent behaviour also breached the public trust and faith in the administration of justice. It is my view that those who are licensed to appear in court and to file applications with the court, both lawyers and law clerks or paralegals “are duty bound to protect the administration of justice and enhance its reputation within their community.” Her criminal behaviour in the course of performing functions connected to her employment with Mr. Nabi’s law practice “had exactly the opposite effect.” Law clerks/paralegals like Ms. Booker “who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.” Ms. Booker’s fraudulent conduct in providing a false, fabricated Divorce Order, purported to have been granted and approved by a Superior Court Justice, to Ms. Diaz was a deliberate choice on her part. The application for an uncontested divorce was not a complicated or lengthy procedure. A fit and proportionate sentence for this conduct in my view would be in the range of six to nine months, however, taking into account totality and the COVID-19 collateral consequence, I am imposing only a 6 month consecutive custodial sentence.
97 The total jail sentence therefore is 18 months. This jail sentence will be followed by two years of probation with conditions. I will discuss the terms and conditions with counsel.
98 Section 380.2(1) provides for a prohibition order prohibiting an offender convicted of a s. 380(1) offence from seeking, obtaining or continuing any employment or becoming or being a volunteering any capacity, that involves having authority over the real property, money or valuable security of another person. Pursuant to s. 380(2), such a prohibition can be for any period the court deems appropriate.
99 As I have indicated there is nothing on the record that demonstrates Ms. Booker is remorseful about her conduct, in fact, she is not. Further, I have no reason to believe that Ms. Booker is doing anything to ensure that she never repeats conduct of this kind. In her evidence she expressed animosity towards Mr. Nabi because of how she described working for him. In my view such an order is necessary and fit in the circumstances of Ms. Booker’s case where she told the probation officer her belief she did nothing wrong and as a result I have no insight or understanding into her motivation for engaging in the fraudulent behaviour she did, other than she fell behind in her work completing the required documentation. There is nothing before me to provide any assurance that Ms. Booker is doing anything to ensure she does not engage in similar conduct in the future. Her current employer indicates in his letter he has complete trust in Ms. Booker, which is reminiscent of Mr. Nabi’s evidence when he learned of the deposit of the $125,000 cheque to his Trust Account respecting Ms. Wendler, believing there had to be an innocent explanation for why he was led to believe it had not been paid.
100 It is my view therefore that in order to protect future employers a prohibition order respecting Ms. Booker having authority over the real property, money or valuable security of another person pursuant to s. 380.2. I will hear submissions as to the length of such a prohibition order.
Sentence Imposed for Emily Wyer
101 Both Ms. Weiss for the Crown and Mr. Jamieson for Ms. Wyer submitted a conditional sentence of 10 months was the appropriate, proportionate sentence for Emily Wyer and as result this is a joint submission as to the sentence imposed in relation to her.18 As I understand the joint submission, Ms. Wyer will be subject to house arrest for the entire 10 months and will be monitored by the Electronic Supervision Program. There will only be a few specified exceptions to this house arrest, which it is submitted by counsel will satisfy the sentencing principles of denunciation and deterrence. The Crown as I understand is not seeking a probation order of any length in respect of Ms. Wyer because of her personal circumstances. Ms. Weiss pointed to the medical records filed by Mr. Jamieson relating to Ms. Wyer’s cancer, her diabetes and mental health issues as establishing exceptional circumstances in respect of Ms. Wyer. The Crown viewed Ms. Wyer as a party to the offence of fraud over breach of trust perpetrated by Ms. Booker towards Mr. Nabi. Obviously, Ms. Wyer’s involvement assisted Ms. Booker in the breach of trust fraud she committed respecting her employer, Richard Nabi. Ms. Wyer was entitled to receive some portion of the money provided by London Life to her brother’s estate, although I was never provided anything to indicate what her legitimate share would or should have been. In my view she was not entitled to the total amount of the monies purportedly paid to her through the cheques prepared and written by Ms. Booker.
102 As I found at the conclusion of the trial Ms. Booker engaged in extensive fraudulent actions commencing with the writing of 83 cheques payable to Ms. Wyer and two cheques payable to Robert Wyer totaling more than $99,000.00 before the London Life insurance cheque was received. Ms. Wyer attended the Nabi law office to receive the 136 cheques written in her name and cashed 130 of those cheques at Money Mart, which was within walking distance of Mr. Nabi’s office. The total amount of monies received by Ms. Wyer was almost $99,000.00. The monies paid out by Ms. Booker to Ms. Wyer and the other beneficiaries exceeded the London Life cheque by more than $80,000.00. Ms. Booker made false entries respecting these monies as well as the Wendler Trust account in respect of the cheque for $125,000.00. In considering the totality of my findings as well as the documentary evidence of the PC Law accounting records and the law firm’s bank records it is my view the only reasonable inference available is that Ms. Booker received a good portion, what I believe was at least half of the monies she wrote cheques to Emily Wyer for. The only logical reason that accords with common sense for Ms. Wyer to cash the vast majority of these cheques at Money Mart was so she could return on the same day she cashed the cheque and provide Ms. Booker with Ms. Booker’s share of the proceeds of Ms. Booker’s fraudulent actions. No other explanation makes sense or is reasonable considering the totality of the evidence presented in this criminal trial.
103 Ms. Wyer’s serious medical condition and the difficulties she experiences and will face in the future certainly qualify as exceptional circumstances. Ms. Wyer was not the principal actor in this fraud. This fraud over offence was a breach of trust because of Ms. Booker’s relationship with Mr. Nabi and frankly Ms. Wyer would not have been able to engage in the conduct she did without Ms. Booker’s involvement. It is my view from the totality of the evidence that Ms. Booker used Ms. Wyer’s role as trustee of her brother’s estate, which Ms. Booker used her skills and training and role as a paralegal to obtain for Ms. Wyer, to commit this fraud on Mr. Nabi. In my view a conditional sentence with the restricted terms of house arrest with the Electronic Supervision Program respecting Ms. Wyer is consistent with the fundamental purpose and sentencing principles required in this case, solely because of the exceptional circumstances revealed by her medical illnesses. Equally consistent with the fundamental purpose and sentencing principles would have been a real jail sentence served in a custodial facility; however, this was not the submission of the Crown.
104 Consequently, the sentence imposed for Emily Wyer is a 10 month conditional sentence with a house arrest condition for the entire length of the conditional sentence on the Electronic Supervision Program. I will discuss with counsel what exceptions are appropriate for the house arrest condition and what other conditions are being sought.
| Footnotes | |
| 1 | R. v. Booker and Wyer, Reasons for Judgment, dated May 17, 2021, at paras. 36-187. |
| 2 | A total of 83 cheques, commencing in December 2012, were issued from both the Trust and General accounts to Emily Wyer (in the total amount of $60,875.00) and two (2) Trust cheques to Robert Wyer ($38,806.26). The London Life cheque of $113,416.70 was not received and put into trust until May 6, 2014. |
| 3 | In the final three months of Ms. Booker writing cheques payable to Emily Wyer, Ms. Wyer was attending the Nabi law office almost every day to pick up the cheques and then cash the cheque the same day at Money Mart. |
| 4 | No evidence was provided as to who the individuals Ms. Booker prepared and wrote cheques for were, nor was any evidence led to indicate what the appropriate distribution would have been respecting the insurance proceeds received and deposited into trust by Ms. Booker. |
| 5 | Robert Wyer received two cheques totaling $38,806.26; Kasey Wyer received 15,000.00; Casey Sullivan received $15,000.00 and Christopher Hicks received $15,000.00. |
| 6 | An excellent and extensive summary of the law respecting breach of trust frauds can be found in R. v. Williams, [2007] O.J. No. 1604 (SCJ, Hill), at paras. 22-33. |
| 7 | [Cases provided by Mr. Singh] R. v. Pechterski, [2007] O.J. No. 4449 (OCJ, Green, M.); R. v. Tran, [2021] O.J. No. 1402; R. v. Fung, [2014] O.J. No. 4447 (OCJ, Lipson); R. v. Sritharan, [2009] O.J. No.4952 (OCJ, Nakatsura, as he then was); R. v. Curreri, [2017] O.J. No. 5064 (SCJ, Allen); R. v. Klundert, (2011 ONCA 646: R. v. Gasparetto, [2008] O.J. No. 3840 (SCJ, Spies); R. v. Lebel, [2018] O.J. No. 5585 (OCJ, Pringle); R. v. Auckbarauellee, [2019]O.J. No. 3990 (SCJ, Garton) R. v. Fontana, [2017] O.J. No. 2646 (SCJ, Edwards); R. v. Simpson, [2016] O.J. No. 1253 (OCJ, Blouin); R. v. Stirling,[2016] O.J. No. 6133 (OCJ, Harris); R. v. Callendar,[2009] O.J. No. 5510 (SCJ, Baltman); R. v. Hosein, [2014] O.J. No. 3231 (OCJ, Lipson); R. v. Aitchison, [2012] O.J. No. 5071 (OCJ, Pugsley); R. v. Spensieri, [2007] O.J. No. 3617 (OCJ, Borenstein); R. v. D’Souza, [2017] O.J. No. 5725 (SCJ, O’Marra); R. v. Kohuch, [2011] O.J. No. 5447 (OCJ, Greene); R. v. Kabiawu, [2009] O.J. No. 1618 (SCJ, Harvison Young, as he then was); R. v. Barchichat v. R. [2020 Q.J. R. v. Robinson, [2003] O.J. No. 4722 (SCJ, Juriansz, as he then was); No. 1100 (C.A.); R. v. Bunn, [2000] 1 S.C.R. 183; R. v. NeblettI,[2009] O.J. No. 6392 (OCJ, Knazan); R. v. Campbell, [2005] O.J. No. 4696 (OCJ, Rogerson); R. v. J.A.I,[2003] O.J. No. 2167 (OCJ, Lenz) [Cases provided by Mr. Jamieson] R. v. Fredson, [2020] ONCJ 519 (Harris); R. v. Sharma2019 ONCA 274; R. v. Clermont, Fervius-Celine and Etienne, [2016 ONSC 4655 (Quigley); R. v. Stewart, 2014 ONCA 715 (endorsement); R. v. Bakos, 2008 ONCA 712 and [Case provided by Ms. Weiss] R. v. Koussis, [2011] O.J. No. 6158 (OCJ, Rutherford). |
| 8 | R. v. Romano, [2021] O.J. No. 1858 (C.A.) and R. v. Dodman, [2021] O.J. No. 4065 (C.A.). |
| 9 | The federal government had introduced legislation — Bill C-22-in response to R. v. Sharma, which would have significantly broadened the availability of conditional sentences, repealing all restrictions in s. 742.1(e) and (f), replacing them with CSO restrictions for offences advocating genocide, attempted murder and torture. An election interrupted the passage of this legislation and it has yet to be passed. |
| 10 | See R. v. Dobis, [2002] O.J. No. 646 (C.A.); R. v. Bertram and Wood (1990), 40 O.A.C.317; R. v. Pierce, [1997] O.J. No. 715; R. v. Gray (L.V.), [1995] O.J. No. 92 (C.A.) |
| 11 | Ms. Booker had received the $125,000.00 cheque for Ms. Wendler’s file, and she prepared the deposit slip and arranged for Ms. Horn, a part-time employee of Mr. Nabi’s firm, to deposit it. Ms. Booker typed the letters Mr. Nabi wrote in 2013 and 2014 to Ms. Wendler’s son’s lawyer demanding this money be paid to Mr. Nabi’s firm to be placed in Trust for Ms. Wendler, as well as the letter to Margaret Hoy, the lawyer he transferred the Wendler file to, which advised Ms. Hoy to seek payment of this outstanding $125,000.00, yet Ms. Booker was fully aware this cheque for $125,000.00 had already been received and deposited into Mr. Nabi’s Trust account. What Ms. Booker did not do was reflect this deposit in the PC Law accounting records as being paid and deposited into the Wendler Trust account, which made it appear as if it was still outstanding. Mr. McEvoy testified it was this money that was utilized to pay the almost $100,000 to Emily Wyer and the other beneficiaries prior to the London Life cheque in the amount of $113, 416.70 payable to Emily Wyer being received on May 6, 2014. |
| 12 | Richard Nabi’s financial loss as identified by Kristopher McEvoy (over $79,000) and his financial expenditure (over $27,000) (See VIS of Richard Nabi) were not fully reimbursed by the settlement reached on the civil action. |
| 13 | Ms. Booker performed all of these functions and she had authority to sign General Account cheques without a co-signature. |
| 14 | This case was provided by Mr. Jamieson on behalf of Emily Wyer, as well as Ms. Weiss for the Crown. |
| 15 | Sentencing Submissions On Behalf of Barbara Booker, at para. 28. |
| 16 | See also R. v. Zaher, [2017] O.J. No. 396 (SCJ, Pomerance), where a 54 year old immigration lawyer counselled undercover officers posing as refugee claimants to lie to secure refugee status, Justice Pomerance held: “When a lawyer breaches the trust reposed in him or her by clients or by the system, a denunciatory and deterrent sentence must be imposed.” Sentence imposed was a year in jail, which was upheld by Court of Appeal, [2019] O.J. No. 385 (C.A.). Justice Pomerance rejected the defence request for a conditional sentence at paras. 56-57, which endorsed by the Court of Appeal, at para. 29. |
| 17 | The accused in Doering was a police officer who was convicted after a trial for the offence of criminal negligence causing death respecting an Indigenous woman who died in police custody. Justice Pomerance declined to impose a conditional sentence as such a sentence was not consistent with the predominant sentencing principles of deterrence and denunciation. |
| 18 | R. v. Anthony-Cook, [2016] S.C.J. No. 43. |
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