In the Provincial Court of Alberta

In the Provincial Court of Alberta
Citation: R. v. Alexander, 2008 ABPC 277
Date: 20080929
Docket: 071274633P1-01-001-004
061407722P1-01-001-006
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Lindsey Elizabeth Alexander
Reasons for Sentence of the Honourable Judge T.C. Semenuk
INTRODUCTION
[1]
The Accused has pled guilty to three charges of fraud. The first charge is a fraud
committed by the Accused, while she occupied a position of trust as bookkeeper for a Calgary
law firm. The amount of money taken by her was $22,136.16. The second charge is a fraud
committed by the Accused while she occupied a position of trust as the financial controller for a
Calgary car dealership. The loss totalled $512,200.49. The third charge is a fraud committed by
the Accused on Her Majesty the Queen in submitting false GST returns to the Canada Revenue
Agency to cover the money she was taking from the car dealership. The amount of money
involved was $364,947.05.
[2]
The issue before the Court is a fit global sentence. Crown Counsel submit that a fit global
sentence is 5-7 years’ imprisonment. Defence Counsel submits that sentence is excessive, and
that a fit global sentence is 2 years’ less 1 day imprisonment, and that the Accused ought to be
allowed to serve the sentence in the community pursuant to a Conditional Sentence Order (CSO).
[3]
For the reasons that follow, the Accused is sentenced to a global sentence of 4½ years
imprisonment.
Page: 2
FACTS
[4]
The Accused is charged in two Informations as follows:
Information Docket Number: 071274633P1
Count 1: Between the 12th day of March, 2001, and the 4th day of January,
2002, both dates inclusive, at or near Calgary, Alberta, did by deceit,
falsehood or other fraudulent means, unlawfully defraud law firm of Park
Wenngatz of property, money, valuable security or a service, to wit: money
held in trust, of a value exceeding $5,000.00, contrary to Section 380(1)(a)
of the Criminal Code of Canada.
Count 3: Between the 4th day of January, 2002, and the 28th day of May,
2004, both dates inclusive, at or near Calgary, Alberta, did by deceit,
falsehood or other fraudulent means, unlawfully defraud Centaur Import
Motors Ltd. of property, money, valuable security or a service, to wit: money,
of a value exceeding $5,000.00, contrary to Section 380(1)(a) of the Criminal
Code of Canada.
Information Docket Number: 061407722P1
Count 6: Between the 1st day of January, 2003, and the 15th day of June,
2004, at or near the City of Calgary, in the Province of Alberta, did by deceit,
falsehood or other fraudulent means, defraud Her Majesty the Queen in Right
of Canada, of money of a value exceeding $5,000.00 and did thereby commit
an offence contrary to paragraph 380(1)(a) of the Criminal Code of Canada.
[5]
The facts were adduced by way of two written Statements of Admissions, marked in
evidence as Exhibits 1 and 2 as follows:
Pursuant to Section 655 of the Criminal Code of Canada, the following facts
and aggravating facts are admitted for the purposes of dispensing with proof
thereof:
In relation to Count 1:
Background Information:
1.
From mid-1986 through to approximately January, 2000,
Lindsey Alexander was employed by Alexander Park (now
Mr. Justice Park) and Arthur Wenngatz.
Page: 3
2.
Lindsey Alexander occupied a position of trust,
working as a bookkeeper for the various Calgary
law firms Mr. Wenngatz and Mr. Justice Park
joined and/or formed over the years.
3.
At the end of March, 1999, Mr. Justice Park was
appointed as a Justice for the Court of Queen’s
Bench and Mr. Wenngatz joined the law firm of
Caron and Partners. Ms. Alexander, and two other
assistants, continued to be employed for the firm of
Park Wenngatz as their files were transferred
and/or closed and the firm’s business was
concluded.
4.
By January, 2000, most of the firm’s business had
been wound up and the office was ultimately closed.
Lindsey Alexander’s Continuing Role
5.
Ms. Alexander turned over all of the books and
records for the firm, up to the end of 1999, to Mr.
Wenngatz. She also provided Mr. Wenngatz a
document she identified as a trust account listing.
Mr. Wenngatz expected that if the clients named in
the listing, with money remaining in the trust
account, could not be located Ms. Alexander would
file the appropriate forms with the Law Society with
respect to dormant trust monies.
6.
After January, 2000, financial, banking,
bookkeeping and accounting records, as well as the
Firm’s computer containing an electronic version of
all of the Firm’s financial records, were maintained
by Lindsey Alexander either at office space rented
by her brother or at her home.
7.
Mr. Wenngatz considered Ms. Alexander, an
employee of over ten years, to be very competent
and he trusted her completely. She submitted
invoices for the hours she worked and received
payment by way of a cheque from the firm’s general
account. These cheques were signed by one of the
partners and by Ms. Alexander, as two signatures
were required for cheques drawn on both the
Firm’s general and trust accounts.
Page: 4
The Law Society Investigation / Attempt to Obtain the Records
8.
After receiving the books, completed up to the end
of 1999, from Ms. Alexander in January, 2000, and
with her undertaking to file any necessary forms
with the Law Society in relation to dormant trust
money, Mr. Wenngatz believed that the firm’s
business had been entirely and properly concluded.
He was surprised, therefore, to receive a telephone
call from the Law Society, on or about November
17, 2004, inquiring about forms that had not been
submitted in relation to the Park Wenngatz trust
account.
9.
On November 17, 2004, Mr. Wenngatz forwarded a
request to Ms. Alexander to send all of the books
and financial records to Mr. Rutherford so that the
required forms and information could be provided
to the Law Society.
10.
Ms. Alexander advised that she could not take the
books and records to Mr. Rutherford because the
law firm’s computer, which she was to have been
maintaining at her home, had crashed. When asked
about the hard copies of all of the records, Ms.
Alexander responded that some of the hard copies
may have been destroyed, too, but she would look
for them.
11.
Mr. Wenngatz spoke with Ms. Alexander over the
telephone more than once to try to obtain the firm’s
records in order to comply with Law Society
requirements.
12.
According to Mr. Wenngatz, on one occasion Ms.
Alexander told him that the hard copies of the
records had been destroyed in a fire, but at another
time she asserted they had been lost in a flood.
Notwithstanding these disasters, she vowed to put
together everything she could and promised to call
him back.
13.
Ms. Alexander denies that she purposely kept the
hard copies of financial records from Mr.
Wenngatz. Ms. Alexander’s explanation is that the
Page: 5
records were being stored in a crawl space in her
home along with some of her father’s old records.
She maintains that, at one point in time, there was a
flood in her crawlspace and the boxes were so
badly damaged that she simply pulled them all out
and burned them.
14.
Mr. Wenngatz, though, did not hear back from Ms.
Alexander after his initial call so he contacted her
at her new workplace. When he asked if he could
pick up the Firm’s computer, Ms. Alexander advised
she had thrown it out. When Mr. Wenngatz asked
why she would do such a thing, as the information
on the hard drive could likely have been retrieved,
she had no explanation. Further, she advised that
she no longer had any hard copies of the records,
either. She concluded by telling Mr. Wenngatz
simply, “I can’t help you. I don’t have anything for
you.” Notwithstanding the destruction of all of the
records, Ms. Alexander assured Mr. Wenngatz that
the bookkeeping had been properly done.
15.
The firm’s accountant, Mr. Rutherford, had likewise
been advised by Lindsey Alexander that there were
no records available because the computer had
crashed. She told him, though, that she had cleared
out the entire trust account by writing a cheque, on
December 31, 2002, to Caron & Partners (the firm
that Mr. Wenngatz was now with) for the entire
balance of the trust account. Ms. Alexander now
advises that she did write a cheque payable to
Caron & Partners to clear out the trust account at
some point, but Mr. Wenngatz refused to accept or
sign it because it was inappropriate to mix his
former’s Firm’s trust money with Caron &
Partners’ trust money.
16.
When confronted later by the Law Society’s
investigator with cheques payable to herself from
the firm’s trust account, Ms. Alexander told the
investigator that the cheques represented payment
for her bookkeeping services between March, 2001
and January, 2002. The fact that she wrote twelve
cheques to herself from the trust account rather
than the general account, she advised, must have
Page: 6
just been an error on her part. Mr. Wenngatz,
however, advised the Law Society that Ms.
Alexander had never made such errors before, was
not doing any work for the firm during this time,
had not presented any invoices for bookkeeping
services, and had never had sole signing authority.
Evidence of Fraud
17.
The Law Society obtained copies of the cheques
written by Ms. Alexander to herself after Mr.
Wenngatz, who had no success obtaining his records
from Ms. Alexander, ordered copies from the bank in
order to provide the required information to the Law
Society. It took two attempts and several months
before usable records were fully obtained.
18.
All cheques, whether General or Trust Account
cheques, required two signatures – a signature of one
of the Firm’s partners and Ms. Alexander’s signature.
19.
The cancelled cheques Mr. Wenngatz received from the
Bank, though, revealed that Lindsey Alexander had
written twelve (12) cheques to herself and/or to herself
and her husband (D. Alexander) from the Firm’s trust
account, between March, 2001 and January, 2002,
totalling $22,136.16. Each cheque bore only Ms.
Alexander’s signature, but was nevertheless processed
by the Bank.
20.
The cheques were written on the dates, to the payees,
and for the amounts set out below:
March 12, 2001
Lindsey Alexander
1000.00
March 26, 2001
L. Alexander
1500.00
April 20, 2001
L. Alexander
830.00
D. & L. Alexander
2000.00
May 9, 2001
L. & D. Alexander
2000.00
May 15, 2001
L. Alexander
1741.82
May 18, 2001
Lindsey Alexander
4424.28
June 8, 2001
L. Alexander
1805.09
May 4, 2001
Page: 7
June .., 2001
L. Alexander
2000.00
June 15, 2001
L. Alexander
1000.00
June 22, 2001
L. Alexander
2000.00
January 4, 2002
L. Alexander
1834.37
21.
Ms. Alexander knew she did not have authority to write
cheques to herself and/or herself and her husband
from the firm’s trust account. The funds were not
owed to her for bookkeeping services or any other
work done for the Law Firm and the funds were used
by Ms. Alexander for purposes unrelated to the law
firm and/or its clients. Ms. Alexander admits that she
defrauded Park Wenngatz of money held in trust
totalling $22,136.16.
In relation to Count 3:
Background Information
22.
Centaur Import Motors Ltd. is a family owned and
operated business. Bruce Williams is the President of
the firm, Paul Williams is the Vice President, and
Patricia Williams is the Secretary. Bruce and Patricia
Williams are spouses and Paul Williams is their son.
23.
On November 11, 2001, Ms. Lindsey Alexander
obtained employment as the financial controller for
Centaur Import Motors Ltd. in Calgary. Over the next
three years Ms. Alexander held a position of trust and
was responsible for all aspects of Centaur’s
accounting operations including accounts payable,
payroll, account reconciliation and tax disbursements.
Ms. Alexander worked independently, on a full time
basis, with little or no supervision. She was
considered a trustworthy and valued employee.
24.
During her employment with Centaur, Lindsey
Alexander had signing authority with respect to
Centaur’s bank accounts. However, Ms. Alexander
was instructed that she could only sign payroll cheques
and, as far as the Williams’ were aware, that was the
only type of cheque she ever signed.
Page: 8
25.
On June 30, 2004, after giving notice that she would
be resigning, Ms. Alexander left her employment at
Centaur Subaru on good terms. She had advised her
employers that she was leaving because she and her
husband, a retired Calgary Police Officer, did not
need her income and she wanted to spend more time
with her grandchildren.
Discovery of Missing Financial Records and Fraud
26.
After Ms. Alexander left Centaur Patricia Williams
began helping out in the office. While looking into a
G.S.T. refund, Ms. Williams noticed some questionable
entries and was unable to locate two cheques related
to those entries. She requested that the bank provide
copies of those cheques.
27.
When she received copies of the two missing cancelled
cheques, Ms. Williams became aware that Lindsey
Alexander had written and signed the two cheques
payable to MasterCard, but knew that Centaur did not
have a MasterCard account.
28.
Thereafter Ms. Williams discovered 34 more cheques
that were missing from their files and requested copies
of them. On August 25, 2005, the cheques were
provided and Ms. Williams learned that all but three of
these cheques had been made out to MasterCard – the
others had been made payable to Lindsey Alexander.
29.
It became apparent to Ms. Williams’ after several
weeks of analysis of their accounts that Ms. Alexander
had been manipulating their GST account by inputting
false GST tax credits.
30.
Ms. Alexander would balance the GST account by
writing cheques for her own benefit in the amount of
the GST credit received. In order to avoid having to
make an entry into the company’s cheque register and
prevent detection of her fraudulent acts, she would
remove the cheque from the printer so there would be
no computer generated record of it, create a false
journal entry to account for the missing cheque and
then manually prepare a cheque (stamped “Payroll”)
payable to herself or her MasterCard account.
Page: 9
31.
When the fraudulent cheques cleared and were
returned by the bank at the end of the month Ms.
Alexander removed them so that no one would ever see
them. By taking all of these steps Ms. Alexander was
able to balance the GST account each month, leaving
behind no indication of her actions.
The Police Investigation
32.
The Williams reported the fraud to Canada Revenue
and to the RCMP, and ultimately to the Calgary Police
Service who investigated this matter further. The
Williams immediately paid $277,384.88 to Revenue
Canada, plus $12, 329.74 in penalties and interest,
which was the amount of fraudulent activity that had
been discovered up to that time.
33.
The Calgary Police Service, Commercial Crime Unit,
took over this investigation and obtained evidence
proving that the following number of fraudulent
cheques, for the total amount indicated, were written
and negotiated by Lindsey Alexander on bank accounts
owned by Centaur Import Motors Ltd.
January 4, 2002
to May 27, 2004
107 Cheques
Payable to
either Lindsey
Alexander or
MasterCard
$499,870.75
Generally
34.
All of which occurred within the Judicial District of
Calgary, Alberta.
35.
The total provable loss due to fraud committed by
Lindsey Alexander against Park Wenngatz was
$22,136.16.
36.
The provable loss due to fraud committed by Lindsey
Alexander to Centaur Import Motors Inc. was
Page: 10
$499,870.75, plus $12,329.74 paid to Revenue Canada
in penalties and interest. The total provable loss to
Centaur Import Motors Inc., therefore, was
$512,200.49.
37.
Lindsey Alexander had no criminal record prior to
committing these offences.
In relation to Count 6
1.
On November 11, 2001, Lindsay Alexander was hired
by Centaur Import Motors (1997) Ltd. (“Centaur”) as
a controller. Her duties included the preparation of
payroll (with sole signing authority), maintenance of
computerized books and records, preparation and
filing of GST returns, daily banking functions (picking
up bank statements and cancelled cheques),
preparation of bank reconciliations, year end
summarization of payroll records, and preparation of
employee T4's.
2.
From 2003 to 2004, Ms. Alexander embezzled over
$395,000 from her employer, Centaur Import Motors
(1977) Ltd. (“Centaur”), (see Provincial Crown
Statement of Admissions), by writing cheques to herself
and her credit card company. She was able to do this
in her capacity of being employed as Centaur’s
controller.
3.
Ms. Alexander then covered up her embezzlement by
filing, on behalf of Centaur, false GST returns with
fictitious input tax credits (“ITCs”) and using the GST
that otherwise would have been remitted to CRA to
balance Centaur’s books. (ITC’s are amounts that
reduce a company’s payable GST amount against the
GST that it collects and remits to Her Majesty the
Queen in right of Canada). By falsely inflating the
company’s ITC’s it allowed the company to keep the
amount of the GST it had collected equal to the amount
of falsely claimed ITC’s.
4.
Ms. Alexander was in a position of trust with Centaur
and the company had no checks and balances in place
Page: 11
to review her work. To embezzle from Centaur, Ms.
Alexander manually wrote cheques to herself in
amounts similar to her regular pay or wrote cheques to
MasterCard which she used to pay her outstanding
balances. By manually writing the cheques, Ms.
Alexander avoided having to account for them
electronically on the dealership’s electronic records.
5.
To cover her fraudulent actions, Ms. Alexander
completed and submitted GST returns on behalf of
Centaur, with fictitious ITCs. The result was that
Centaur did not remit all of the GST it had collected
and Alexander used these additional funds to balance
Centaur’s books, hiding her embezzlement.
6.
The total amount of fictitious ITCs claimed by Ms.
Alexander over the two-year period, on behalf of
Centaur, totals $364,947.05.
7.
In 2003, Ms. Alexander embezzled $267,389.26 from
Centaur and covered these embezzled funds by
claiming fictitious ITCs totalling $215,427.11 on
behalf of Centaur (difference explained by calendar
year and Centaur’s fiscal year). This was done using a
manual journal entry to debit ITCs in the GST Vehicles
account and credit the Bank. She manually prepared 7
“Payroll” cheques to herself for $12,760.51 and 32
“Payroll” cheques made out to MasterCard for
$252,625.75. The cheques payable to MasterCard
were used to make payments on Ms. Alexander’s
account no. 5191 2300 0391 2814.
8.
In 2004, Ms. Alexander embezzled $129,672.72 from
Centaur, claiming fictitious ITCs totalling $149,519.94
(difference explained by calendar year and Centaur’s
fiscal year). She manually prepared 17 “Payroll”
cheques made out to MasterCard for $129,672.72.
The cheques payable to MasterCard were used to make
payments on Ms. Alexander’s account no. 5191 2300
0391 2814.
9.
In summary, Ms. Alexander completed and submitted
GST returns on behalf of Centaur, with fictitious ITCs
equal to the amounts she embezzled. The result was
Page: 12
that Centaur did not remit enough of the GST it had
collected and Ms. Alexander was able to use the
additional funds to balance Centaur’s books, hiding
her embezzlement.
10.
Centaur’s owners trusted Ms. Alexander and took no
steps to review the bank statements or any other books
and records (electronic or manual). It was not until
after she was terminated in June 2004 that they
realized what had happened.
11.
The owners of Centaur, Mr. and Mrs. Williams, upon
discovering the fraud against themselves and the CRA,
paid back the CRA a total of $265,055.14.
The CRA, due to the circumstances, waived any
penalties and interest against Centaur. The CRA also
wrote off as a loss to the Government of Canada the
balance of the gross amount of the false ITCs which
totaled $99,891.91.
12.
[6]
A Pre-Sentence Report (PSR), FAOS Report, and amended FAOS Report were prepared and
marked in evidence as Exhibits 3, 4, and 7, respectively. The amended FAOS Report was prepared
by Dr. Baxter, because she had not received a copy of Exhibit 1, the Statement of Admissions and
the charge faced by the Accused in relation to the victim law firm, at the time of her preparation of
the FAOS Report. In order to make a proper assessment of risk, the Court ordered the preparation
of the amended Report.
[7]
As well, Victim Impact Statements written by Pat Williams and Bruce Williams, the owners
of Centaur Import Motors Ltd., were marked in evidence as Exhibits 5 and 6, respectively.
ISSUES
[8]
The issue in this case is a fit global sentence. Crown Counsel submit that a fit global
sentence is 5-7 years imprisonment. Defence Counsel submits that a fit global sentence is 2 years
less 1 day imprisonment, and that the Accused ought to be allowed to serve the sentence in the
community pursuant to a CSO.
LAW AND ANALYSIS
Range of Sentence
[9]
In determining the range of sentence in this case, Counsel provided the Court with a number
of authorities.
Page: 13
[10]
Ms. Mulligan, for the Provincial Crown, referred the Court to the following authorities:
R. v. McIvor, [1996] A.J. No. 377 (ABCA); R. v. Tebbutt, [1992], A.J. No. 256
(ABCA); R. v. McTighe, 2005 ABCA 30 (ABCA); R. v. Holmes, [1999] A.J. No.
862 (ABCA); R. v. Bracegirdle, 2004 ABCA 252 (ABCA); R. v. Jyu, [1989] A.J.
No. 819 (ABCA); R. v. Jaikaran, 2007 ABCA 98 (ABCA); R. v. McDermand,
[2000] A.J. No. 628 (ABCA); R. v. McLeod, [2000] A.J. No. 1115 (ABPC); R. v.
McKinnon, 2005 ABCA 8 (ABCA); R. v. Schwan, [1994] A.J. No. 605 (ABPC); R.
v. Yamada, [1996] A.J. No. 629 (ABCA); R. v. Jones, 2006 ABCA 79 (ABCA); R.
v. Jones, 2005 ABPC 310, 2005 Carswell Alta. 1653 (ABPC); R. v. Dobis, 157
O.A.C. 83, 163 C.C.C. (3d) 259, 58 O.R. (3d) 536, 27 B.L.R. (3d) 200, 2002
Carswell Ont. 575 (Ont. C.A.); R. v. Foran, [1970] 2 O.R. 52, [1970] 1 C.C.C. 336,
1969 Carswell Ont. 371 (Ont. C.A.).
[11] Mr. Constantinescu, for the Federal Crown, referred the Court to the following authorities:
R. v. Kooper, (unreported judgment of Oliphant, A.C.J., delivered in the Queen’s Bench Court at
Winnipeg, Manitoba, on March 21, 2006) and R. v. Turner, (unreported decision of Maloney, PCJ.,
delivered in Provincial Court at Calgary, Alberta on April 23, 2007).
[12] Mr. Der, for the Accused, referred the Court to the following authorities: R. v. Bunn, (2000)
140 CCC (3d) 505 (SCC); R. v. Dinardo, 2001 Carswell Ont. 2539 (Ont. Ct.J.); R. v. Lane, 2004
Carswell Nfld. 66 (Nfld./Lab. S.C. ); R. v. Turner, 2006 ABPC 189; R. v. Fraser, 2007 ABCA 386;
R. v. Fulcher, 2007 ABCA 381; R. v. Gabel, 2008 ABPC 90; and R. v. Coulson, 2008 ABPC 144.
[13] Fixing a range of sentence in this case is complicated by the fact that the Accused is charged
with three distinct offences. The range of sentence for each offence necessarily differs. In this
regard, I agree with the observations made by my Learned Colleague, Allen, PCJ, in Coulson,
supra, at para. 41 as follows:
The sentence range for frauds or thefts by individuals in a position of trust varies with the
amount stolen, the type of position of trust, the nature of the victims, the degree of sophistication of
the scheme, and the length of time over which it occurred. Pursuant to s. 380.1(c), the sentencing
judge is required to take into account as an aggravating factor that the fraud involved a large number
of victims. In this instance, there were forty-three victims which constitute a large number for the
purpose of the section .
[14] In this case, the accused occupying a position of trust as bookkeeper and then financial
controller, defrauded three separate victims. The amount of money taken from each victim is
different. The degree of sophistication, and the length of time over which the frauds occurred is
different. Clearly, the second charge is the most serious. Although there is some overlap in the facts
between the second and third charges, each offence calls for a different range of sentence to be
considered, prior to factoring in the totality principle.
[15] In my review of the above-cited authorities and others, the range of sentence for defrauding
the law firm, Park Wenngatz of $22,136.16, would be somewhere between 6-12 months’
imprisonment.
Page: 14
[16] The range of sentence for defrauding the car dealership, Centaur Import Motors Ltd. of
$512, 200.49, would be somewhere between 2 and 4 years’ imprisonment.
[17] The range of sentence for defrauding Her Majesty the Queen of $364,947.05, would be
somewhere between 12 months’ and 3 years’ imprisonment.
CIRCUMSTANCES OF THE ACCUSED
[18] The Accused is 54 years of age. She is married, and her husband is a retired member of the
Calgary Police Service (CPS). At the present time, the Accused and her husband are living on a
farm near Westwold, British Columbia. She has no prior criminal record.
[19] The Accused was born in England, and has three older brothers. Her mother passed away in
1989, as a result of complications from a blood clot in her lung. Her father passed away in 1994, due
to throat cancer. It is stated in the PSR, that the Accused was emotionally close to both parents, and
that their deaths were traumatic to her.
[20] The Accused emigrated to Calgary with her family when she was four years old. There is
nothing remarkable about the Accused’s upbringing.
[21] In 1971, when she was 18 years old, she married her first husband. The marriage was
terminated after 10 years due to her husband’s alcoholism. In 2006, her first husband passed away.
That relationship produced a daughter and a son, now aged 35 and 36, respectively.
[22] In 1983, when she was 30 years old, she married her present husband. He had two children
from a prior marriage, a daughter and a son, now aged 35 and 36, respectively. Her present husband
was involved in raising her two children, with little involvement from her first husband. He remains
supportive of the Accused.
[23] The Accused has a grade 11 education, and has taken several accounting courses at Mount
Royal College in Calgary. She is presently unemployed. She last worked in October 2007 as a
financial controller for Jaguar/Subaru Calgary, but lost her job as a result of the offences before the
Court. She is now collecting employment insurance, and has declared bankruptcy. She has made no
restitution to the victims in this case, and does not now have the financial ability to do so.
[24] The Accused admits to a gambling addiction that started shortly after her mother passed
away in 1989. Her gambling addiction was one of the primary motivations for the commission of
the offences before the Court. After being charged, she made efforts through AADAC and
Gambling Anonymous (G.A.) to control her addiction. Since moving to British Columbia, she has
also been seeing a clinical registered counselor in Kamloops to address her personal and gambling
issues.
[25] In the PSR, the writer states, “The subject presented as a self-absorbed individual who
offered little remorse for her actions. She gave the writer the impression that she was mostly
Page: 15
upset that she was in trouble with the law rather than upset about the harm her actions have
caused others.”
[26] The writer concludes the PSR by stating, “The subject presented as a defeated individual
who feels sorry for herself. She has made some efforts to address her gambling addiction by
attending AADAC, GA meetings and individual counselling. The subject expressed how much
she dislikes living on an isolated farm in British Columbia. She is unemployed, has strained
family and personal relations and did not take much responsibility for her actions.”
[27]
She is not recommended as a suitable candidate for community supervision.
[28] In the FAOS Report, Dr. Baxter states that the Accused indicated a history of depression and
a mental breakdown during her first marriage. She was admitted to hospital and prescribed
antidepressant medication. There is also a past suicide attempt via overdose, when she felt
overwhelmed during her divorce. She also had problems with unresolved grief after the death of her
parents. Prior to moving to British Columbia, she had never been involved in any personal
counselling.
[29] Dr. Baxter writes, “She attributed her offence to a problem with excessive gambling. She
often used her credit card to get cash advances at the casino, thus ‘I needed money and I figured
out a way that I could pay down my MasterCard.’”
[30] The Accused told Dr. Baxter, she started gambling after her mother died and that “It was a
great way to block everything out, and it just escalated.” There is mention in the report that her
gambling problem escalated to the point where she was spending $200-$1,000 daily, on advances
obtained on her MasterCard.
[31] The Accused told Dr. Baxter that after finding employment with the victim car dealership in
this case, “she found the working environment to be very stressful, and said that her employer
yelled at her and belittled her on a regular basis. She said she left the job most nights in tears,
and finally left the job in 2004 when she was denied a vacation.”
[32] The Report mentions that in September 2007, the Accused’s daughter arranged for her to
receive an urgent mental health assessment via the Mobile Response Team. She called the Distress
Center, because she thought her mother might be suicidal due to her financial and legal problems.
At that time her legal problems included the criminal charges, tax evasion charges, and a civil
lawsuit. The Accused was diagnosed with Major Depression and Pathological Gambling.
[33] The Report also indicates that her daughter caught the Accused gambling on September 7,
2007. After being caught, the Accused signed a self-exclusion agreement with the casinos in
Calgary.
[34] Dr. Baxter concludes the FAOS Report by stating, “The fact that she didn’t like her
employers, likely made it easier for her to justify her theft in the index offence.” Dr. Baxter finally
states, “Overall, given the consequences Ms. Alexander has already suffered because of her
offence, her risk of recidivism appears to be very low.”
Page: 16
[35] In the amended FAOS Report, Dr. Baxter indicates that the charge faced by the Accused in
relation to the victim law firm, pre-dated the development of her pathological gambling. The
Accused attributed the law firm offence to being “overworked and underpaid during the business
closing.” The Accused told Dr. Baxter, “I’d done hours and hours of work that I wasn’t paid for.
I’m flat broke, I need some money”.
[36] In a more recent consultation with the Accused’s doctor on June 12, 2008, Dr. Baxter
confirmed the presence of significant current depression. Dr. Baxter was told, “Pronounced
symptoms of depression and anxiety are evident and she is likely struggling with a depressive
disorder. She is plagued by feelings of inadequacy, worthlessness, and hopelessness, and she
perceives herself to have few coping skills or resources. Her self-concept is poorly established and
her self esteem is fragile. Ms. Alexander’s insight into her emotional functioning is poor and
somatic symptoms are likely to be evident.”
[37] Dr. Baxter states in the Amended Report , “It appears her offending behavior began in the
context of financial stress and feelings of entitlement - she felt taken advantage of by her lawyer
employers.”
[38]
Dr. Baxter continues to state, “Her offences at the second employer represented an
extension of the same dynamics (i.e., feeling maltreated at her workplace) further complicated by
the development of excessive gambling with more dire financial problems. She feels guilt for her
actions.”
[39] Finally, Dr. Baxter concludes her amended Report by stating,“Regarding recidivism, it
appears her risk of re-offending will be practically low, as future employment entailing financial
responsibility seems highly unlikely. To ensure a low risk, any occupational or volunteering
positions involving financial responsibility should be prohibited. My original recommendation
for further mental health and addiction treatment stand.”
[40] The Victim Impact Statements were not only adduced into evidence, but read into the record
by both Pat Williams and Bruce Williams.
VICTIM IMPACT STATEMENTS
[41] Briefly they indicated that it took 25 years to build up their family-owned car dealership, and
to have a large part of it wiped out by what the Accused did was heartbreaking. She almost
“destroyed” the company. As well, as a result of the Accused falsifying the GST returns to cover up
what she took from the car dealership, they had to defend themselves and prove their innocence to
the Canada Revenue Agency (CRA), the RCMP, and the CPS. They trusted the Accused knowing
that her husband was a retired member of the CPS, and that she had worked in a law office. As a
result of what the Accused did, they have lost their trust in people and have altered the way they
treat new employees. As far as they are concerned, the Accused has made no apologies for her
actions, and has made no restitution.
Page: 17
STATEMENT BY THE ACCUSED
[42] Pursuant to Section 726 of the Criminal Code, the Accused was permitted to address the
Court prior to sentencing. She apologized to the victims, and stated that if she could go back eight
years, she would change what she did. She was also sorry for the hurt that she has caused to her
family. She stated that if she could pay the money back, she would pay back double of what she
took. She stated that she was truly sorry.
SENTENCING PRINCIPLES
[43] In all sentencing cases, the ultimate disposition for an offender must reflect the fundamental
purpose and all the principles of sentencing provided for in Section 718 of the Criminal Code. The
sentence must be in accordance with the fundamental principle of proportionality found in Section
718.1 of the Code. As well, the sentence in accordance with Section 718.2 of the Code, must
account for any relevant aggravating and mitigating circumstances, and be tailored to fit the
Accused before the Court. Section 718.2(a)(iii) of the Code expressly provides that abusing a
position of trust is an aggravating factor. “Individualized” sentencing, as opposed to “tariff”
sentencing, has been endorsed by the Supreme Court of Canada, in R. v. McDonnell, (1997) 1 SCR
948 and R. v. Proulx, (2000) 140 CCC (3d) 449.
[44]
What are the aggravating and mitigating circumstances in this case?
Aggravating
1.
The nature of the offences committed by the Accused in this case is grave.
Abusing her position of trust, she defrauded a law firm, and then a car dealership. In
defrauding the car dealership, she defrauded the CRA.
2.
The offences were planned, deliberate and sophisticated. They spanned a
period of approximately four years.
3.
The total amount of money taken by the Accused from the law firm was
$22,136.16. The total loss to the car dealership was $512,200.49. The total loss to the
CRA was $364,947.05. The owners of the car dealership paid the CRA back a total
of $264,000.00. The loss attributed to the Accused as a result of defrauding the CRA
is $99,891.91. The CRA wrote off that amount still owing by the car dealership,
because of the cooperation of the owners in paying the bulk of the GST owing.
4.
In defrauding the CRA, the Accused exposed the owners of the car dealership
to a criminal investigation by the CRA, the RCMP, and the CPS. As well, the car
dealership being a small family run business, was almost destroyed by the criminal
activity of the Accused.
Page: 18
5.
The Accused’s motivation for committing the fraud against the law firm was
financial stress and feelings of entitlement. She felt the lawyers in the law firm had
taken advantage of her.
6.
The Accused’s motivation for committing the fraud against the car dealership
was both her feelings of being maltreated by her employer, and her pathological
gambling addiction resulting in acute financial stress.
7.
The Accused’s motivation for committing the fraud against the Canada
Revenue Agency was to cloak the money she was taking from the car dealership.
8.
The Accused did not co-operate with the authorities in terms of tracking the
loss to either the law firm or the car dealership, and has made no restitution.
Mitigating
1.
The Accused entered guilty pleas to the charges.
2.
The Accused has no prior criminal record.
3.
At this point in time, the Accused and her husband have lost
everything. The Accused is unemployed and has declared bankruptcy.
It is highly unlikely that the she will ever again obtain any meaningful
employment with financial responsibility.
4.
As a result of the offences and the aftermath, the Accused suffers from
significant depression. She is taking prescribed antidepressant medication.
She has low self-esteem and a sense of worthlessness. She has attempted
suicide in the past, and family members are concerned that she might try
again. In addition, she has other unresolved personal issues and is under the
care of both a physician and a personal counselor.
5.
The Accused has made attempts to address her pathological gambling
addiction through AADAC and Gambling Anonymous. She also
signed a self-exclusion agreement with the casinos in Calgary.
6.
The Accused has removed herself from the temptations found in
Calgary. She left the Province and is now living with her husband on a
farm in a remote part of British Columbia. Her family is supportive of
her.
7.
The risk of recidivism for the Accused is low.
8.
Although the Accused, to date, has made no restitution, the Court was
informed by Defence Counsel that the Trustee in Bankruptcy holds
Page: 19
approximately $25,000.00 in trust, from the sale of the Accused’s
home that could be disbursed as partial restitution.
CONDITIONAL SENTENCE ORDER
[45] Having regard to the provisions of Section 742.1 of the Criminal Code and the principles
enunciated by the Supreme Court of Canada, in Proulx, supra, the pre-requisites to the granting of a
CSO are as follows:
1.
No minimum term of imprisonment is prescribed;
2.
Neither a penitentiary term nor a probation order is appropriate;
3.
Serving the sentence in the community would not endanger the
safety of the community; and
4.
Serving the sentence in the community would be consistent with the
fundamental purpose and all the principles of sentencing.
[46] In my view, I need go no further than the second pre-requisite. Clearly, a global penitentiary
term of imprisonment is appropriate in this case. There are no exceptional
circumstances such as those found in cases like Coulson, supra, and others, that would make a CSO
appropriate in this case. A CSO is not available to the Accused in this case.
[47] If I am wrong, I am also not satisfied that the fourth pre-requisite is met. In my view, the
offences are grave and the moral blameworthiness of the Accused is high. A CSO would not be
consistent with the proportionality principle. As well, this case calls for a punitive as opposed to a
restorative sentence. A CSO would not properly address the principles of denunciation and
deterrence in the circumstances of this case.
DISPOSITION
[48] Considering the fundamental purpose and all the principles of sentencing, the aggravating
and mitigating circumstances in this case, and bearing in mind the totality principle, the Accused is
sentenced as follows:
Information Docket Number 071274633P1
Count 1 - 6 months’ imprisonment
Count 3 - 3 years’ imprisonment
Information Docket Number 061407722P1
Page: 20
Count 6 - 1 year imprisonment
[49]
Each sentence will be consecutive. The global sentence is 4½ years’ imprisonment.
[50] Pursuant to Section 738(1) of the Criminal Code, the Accused will make restitution to the
victims as follows:
Park Wenngatz - $22,136.16
Centaur Import Motors Ltd. - $499,870.75
Canada Revenue Agency - $99,891.91
[51]
Finally, there will be no Victim Fine Surcharge.
Dated at the City of Calgary, Alberta, this 29th day of September, 2008.
T.C. Semenuk
A Judge of the Provincial Court of Alberta
Appearances:
S. Mulligan
for the Crown - Alberta Justice
R. Constantinescu
For the Crown - Public Prosecutions Service
of Canada
B.Q.H. Der, Q.C.
for the Accused
`