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Criminal - Sentencing - Fraud. R. v. Konashewych
In R. v. Konashewych (Ont CA, 2026) the Ontario Court of Appeal dismissed two criminal appeals, these brought against convictions against both defendants for fraud, and one for "breach of trust by a public officer" under CCC s.122.
The court considers sentencing for fraud and similar offences under CCC s.380.1(2) ['Sentencing — aggravating circumstances - Non-mitigating factors']:[140] I also reject the argument of both appellants that the trial judge erred in applying s. 380.1(2) of the Criminal Code. The trial judge found that s. 380.1(2) precluded him from considering the appellants’ loss of employment and status or reputation in the community as mitigating on the basis that all three of these “were relevant to, contributed to, or were used in the commission of the offence.” While he acknowledged the collateral consequences suffered by the appellants, he found that any mitigation these factors might otherwise warrant was offset by the serious aggravating factors at play and the gravity of the crime, and that it would undermine the objectives of denunciation and deterrence to give these factors much weight. These findings were open to the trial judge. Again, it cannot reasonably be disputed that the appellants used their professional positions and community status in committing the fraud. As the Supreme Court has made clear, a collateral consequence will warrant little mitigation where it “is so directly linked to the nature of an offence as to be almost inevitable” (citation omitted): R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 49.
[141] I similarly reject Ms. Balgobin’s argument that the trial judge erred in his treatment of her motive.
[142] The trial judge did not reject the Crown’s theory about Ms. Balgobin’s motive at sentencing; he found that he could not determine her motive for certain. He was not required to give effect to the Crown’s motive theory simply because he had put it before the jury and, on that basis, find that Ms. Balgobin’s moral culpability was lesser.
[143] The trial judge was also entitled to reject the separate submission by counsel for Ms. Balgobin that her degree of responsibility was less because Mr. Konashewych had “directed” the steps she took to further the fraud. As the trial judge found, there was no evidence that Mr. Konashewych had manipulated or dominated Ms. Balgobin with a view to securing her cooperation or complicity.
[144] As for Ms. Balgobin’s argument that her moral responsibility was lesser because she received none of the proceeds of the crime, the trial judge did recognize this at sentencing, finding it was one way in which her conduct was less serious than that of Mr. Konashewych. The trial judge simply found that, in other ways, Ms. Balgobin’s conduct was more serious than that of her co-accused, because, in addition to the fraud, she violated a vulnerable person’s trust.
[145] Ms. Balgobin also takes issue with the trial judge’s finding that she called Mr. Stelter, and that this was a step taken to assist the fraud by enabling her to verify that he did not have Mr. Sommerfeld’s will or know any current information about him. The trial judge found this to be relevant to the aggravating factor at s. 380.1(1)(d), as it involved trading on her professional status. I see no error in this finding even though, as noted earlier, the trial judge declined to confirm for the jury that Ms. Balgobin had indeed called Mr. Stelter. Even if the trial judge erred in drawing the inferences he did about the role of this call in advancing the fraud, such an error would be immaterial because he found that s. 380.1(1)(d) applied to Ms. Balgobin on several other bases as well.
[146] Lastly, the trial judge did not err in imposing sentences in excess of the jurisprudential range applicable to “large-scale frauds”. I do not read the trial judge’s sentencing reasons as being preoccupied with the “large scale” label. While he did consult this court’s case law on sentencing for such frauds, his findings about whether this fraud was “large scale” were ambivalent and secondary to his focus on the gravity of the offence and the appellants’ degree of responsibility. It was the many severe aggravating factors in this case and the corrosive impact of the fraud on public trust in the police and the OPGT that drove the trial judge’s decision to impose an “exemplary” sentence.
[147] The Supreme Court has consistently reinforced that sentencing ranges are guidelines, and not hard and fast rules: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 37. Therefore, deviating from the sentencing range “is not synonymous with an error of law or an error in principle”: Lacasse, at para. 60. The facts of this case and the sentencing judge’s path of reasoning justify sentences beyond the three- to five-year range indicated in other fraud cases, even though the amount of the fraud here is less than the amounts at issue in some such cases. What is important is whether “the sentencing judge’s reasons and the record” allow an appellate court “to understand why the sentence is proportionate despite a significant departure from the range”: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 40. In this case, they do. . R. v. Booker
In R. v. Booker (Ont CA, 2024) the Court of Appeal considered criminal sentencing for fraud, here over $5,000:[54] The range for analogous sentences both for fraud over $5,000 and for uttering forged documents show the sentence imposed by the trial judge for each conviction was not at the high end of the range and represented a rough mid-point between the Crown and defence positions at the sentencing hearing.
[55] With respect to the sentence for fraud over $5,000, the trial judge concluded a range of 12-18 months in custody reflected a proportionate sentence, in the range of analogous cases. The trial judge reiterated the seriousness of the appellant’s fraudulent conduct, involving 140 unauthorized cheques: “This case involves a serious breach of trust by an employee secretary/bookkeeper, involving close to or just slightly above $100,000. 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.” (at para. 32).
[56] The trial judge, taking into account the seriousness of the offence, together with the fact that this was a first jail sentence for the appellant, as well as the COVID-19 concerns raised by her counsel, imposed a 12-month custodial sentence.
[57] With respect to the sentence for uttering a forged document, the trial judge concluded that a fit and proportionate sentence for the conviction would be in the range of six to nine months. After taking into account the principle of totality and the COVID-19 collateral consequence, he imposed a six-month consecutive custodial sentence on the appellant.
[58] This overall sentence is in line with sentences for analogous convictions: see e.g., R. v. Charity, 2022 ONCA 226, 161 O.R. (3d) 721; R. v. Manickam, 2021 ONCA 668; R. v. Piccinini, 2018 ONCA 433; R. v. Shaw, 2012 ABPC 273, aff’d 2015 ABCA 25, leave to appeal refused, [2015] S.C.C.A. No. 108.
[59] In our view, the trial judge properly considered the appropriate sentencing range, the principles of deterrence and denunciation, restraint and totality, as well as the applicable aggravating and mitigating factors.
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