R. v. De La Boursodiere

2012 BCSC 1695 R. v. De La Boursodiere

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. De La Boursodiere, 2012 BCSC 1695 Date: 20121022 Docket: 25920 Registry: Vancouver Regina v. Teresa Kathleen De La Boursodiere Before: The Honourable Madam Justice H. Holmes Oral Reasons for Sentence In Chambers Counsel for the Crown M.A. Street Counsel for the Accused M.M. Uzelac Place and Date of Hearing: Vancouver, B.C. October 22, 2012 Place and Date of Judgment: Vancouver, B.C. October 22, 2012 [1] THE COURT:

INTRODUCTION [2] Ms. De La Boursodiere, I found you guilty of four offences relating to your dealings with Pacific Blue Cross (PBC), a group health and dental plan insurer: one offence of fraud in an amount under $5,000 (count 1); one offence of attempted fraud under $5,000 (count 4); one offence of using a forged document (count 2); and one offence of forging that same document (count 3). [3] The task now is to determine the appropriate sentences.

CIRCUMSTANCES OF THE OFFENCES [4] I outlined the circumstances of the offences in the reasons I gave after the trial, and I will not now repeat all of that detail. [5] However, I will say the following in very brief overview. [6] As a provider of therapeutic treatment through your company ADNC Neurofeedback Centre of BC, you submitted false claims on behalf of some of your clients who were insured with PBC through group employment benefits plans, and on behalf of members of their families. [7] Some of the claims falsely reported services that were not provided at all or, if they were provided, were provided to the plan member and not to the family member represented to have received them. [8] Some of the claims were supported by ADNC invoices or other documents which falsely represented that the treatments or services (for naturopathic medicine and for massage therapy) were provided by particular named registered professionals, when those services, if provided at all, were in fact provided by non-registered ADNC personnel, mainly yourself. Although you have many qualifications in neurotherapy, biofeedback, homeopathy, shiatsu massage, and some forms of reflexology, you are not registered with the professional bodies in British Columbia responsible for governing providers of the other forms of medical treatment for which those false invoices were issued. [9] The clients in

respect of whom you submitted false information or claims were not party to your offences and, I found, did not know that you were committing them. [10] The dollar amounts involved in the fraud offences were not large. The offence in count one resulted in an overpayment of $170.30 to J.L. The offence of attempted fraud, included in the fraud that was charged in count four, would have involved improper reimbursements of larger sums, but even in total those would have amounted to substantially less than $5,000. [11] The forgery offences relate to the same document, namely an assignment of payment by which J.K., a client and plan member, purportedly authorized PBC to reimburse ADNC directly for services and treatment given. You forged that document (count 3) by creating it and falsifying J.K.'s signature on it. You also used that false document (count 2) by submitting it to PBC (count 2) accompanied by numerous invoices submitted for reimbursement. The only reasonable inference is that you intended to take your deceit on PBC to a further level at which ADNC, and not the clients, would directly receive the fraudulent "reimbursements" claimed. MS. DE LA BOURSODIERE'S BACKGROUND AND CIRCUMSTANCES [12] I have read the recently prepared pre-sentence report, and have considered the corrections to it that Mr. Uzelac noted should be made. I will not repeat the content of the report, but

will highlight a few of the matters that it addresses. [13] In brief, you have spent many of your adult years (as, now, a person of 37 years of age) away from your immediate family. Your mother lives in Australia, and your father in Quebec. Although you have little face to face contact, you communicate frequently by telephone and email. You have fairly little contact with your siblings, but you do speak with them from time to time. [14] There are certain features to your background and circumstances that need careful attention. [15] First, you have faced serious medical challenges related to the epilepsy that began when you were a small child and the neurological surgery you underwent as a younger woman in the second half of the 1990s. I am advised that happily your seizures are now residual and relatively few in number, although you have had a few in the past five or six years. [16] Second, it is clear that you are hard-working and determined. The various character referees almost all refer to these characteristics, which are also borne out in your background as described in the evidence in the trial. [17] I should say something about comments some of these people made in letters submitted to the Court commending your honesty and integrity. [18] The obvious difficulty with these comments is that they are inconsistent with the findings I made, based on the evidence in the

trial, in finding you guilty of offences involving deceit and dishonesty. [19] Sometimes comments of this nature can be taken as statements that the conduct involved in the offence is out of character for the offender -- an aberration or a departure from his or her usual behaviour. However, most of the comments in the letters now in issue cannot be taken this way because it is not clear that the writers were aware of my findings. Some of the writers wrote their letters before the trial or my decision, in an apparent effort to convince the court that you cannot have committed the offences. At least one of the writers, who addresses his letter to "whomever it may concern", appears to write in order to recommend you as a future student, and makes no reference at all to any charges or allegations. Another writer, who does refer to "bizarre allegations" against you, rejects outright any suggestion that you forged a client's signature; I have found that you did exactly that. [20] I note also that much of the content of the letters written by people who do appear to be aware of the convictions appears to be based on information that you have given them, and not on information gained in a more objective fashion, such as by observing the trial or reading an outline of some of the evidence. [21] In these circumstances, I can give little, if any, weight to the writers' further comments

that you have taken the necessary measures to address any administrative or other problems that led to your offences. [22] The pre-sentence report also records a similar comment of your own: at page 4, under the heading "Attitude and Understanding", the report speaks of you being horrified at the charges, and notes that you admitted to having been naive and to having needed better guidance about office practices at the time of the offences. The report notes that you claimed to have since put in place new practices and procedures, as well as to have hired a bookkeeper and an office assistant. [23] Finally, it is clear that you have already faced substantial consequences of your offences. I accept that the convictions themselves are, adopting the term you yourself used shortly before I began these reasons, "devastating" to your sense of who you are. [24] I am told also that you are on the verge of bankruptcy -- although from your counsel's submissions it seems there is hope that such a result can be avoided. It is not clear in the evidence or submissions to what extent potential bankruptcy is attributable to the consequences of the offences; there was also reference to very substantial outstanding student loans. However, no doubt the consequences of the trial have made some contribution to your difficult financial position.

THE POSITIONS OF THE PARTIES The Crown's Position [25] The Crown submits that, the range of sentences appropriate for offences of this general type, starts at a suspended sentence with probation, at the low end, and increases through to a sentence of imprisonment in a provincial institution, at the high end. [26] The Crown suggests neither the low end nor the high end as appropriate here. Rather, the Crown submits that these offences warrant a conditional sentence of imprisonment with house arrest or a curfew or both during a substantial period of the sentence. [27] As to the length of a conditional sentence of imprisonment, the Crown submits that for Counts 1, 2, and 3 it should be between six and nine months (concurrent on each of those counts). For Count 4, the Crown submits that the conditional sentence of imprisonment should be an additional three months served consecutively to the concurrent sentences for Counts 1, 2, and 3. Defence Position [28] Your own position, ably put forward through Mr. Uzelac, is that the Court should consider a conditional discharge, so that so long as you comply with the conditions imposed, the findings of guilt I have made would not result in criminal convictions. [29] Mr. Uzelac submits that a conditional discharge would serve your own interests as well as the interests of the community. He submits that it would allow you to continue your work

in the community without the considerable stigma that criminal convictions would involve. He submits that although the criminal process must give effect to the important sentencing principles it is designed to serve, it should not function to destroy an individual's future in the career in which she has worked hard for a long period of time. Mr. Uzelac submits also that the consequences you have already faced as a result of your offences have provided the necessary specific deterrence; in other words, the consequences have been such that you are not likely to commit similar offences ever again. He submits that the other sentencing principles, which I will discuss in a moment, can also be properly satisfied by a conditional discharge.

THE GENERAL SENTENCING PRINCIPLES [30] Let me now outline the sentencing principles because they are what I must consider in determining the appropriate sentence in your case. They are set out in s. 718 of the Criminal Code and the neighbouring sections. [31] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. That purpose underlies six main sentencing objectives: (1) denunciation of the offending conduct; (2) deterrence of the offender and of other people from criminal conduct; (3) separation of the offender from society where necessary -- I add as a brief digression that there is no suggestion that this principle needs to be reflected in your sentence for public safety reasons; (4) rehabilitation of offenders; (5) reparation to victims or the community; and (6) fostering the offender's acknowledgement of responsibility and of the harm done to victims and the community. [32] The relative emphasis to be given to the various objectives will vary according to the particular offence and the particular offender. [33] Further principles of sentencing, designed to help achieve the sentencing objectives I have outlined, are set out in ss. 718.1 and 718.2 of the Criminal Code. Principles that apply in this case include the following: (1) a sentence should be proportionate to the gravity of the offence

and the degree of responsibility of the offender, and should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the proportionality principle); (2) a sentence should be increased or reduced to reflect any relevant aggravating or mitigating circumstances relating to the offence or the offender; (3) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances -- I digress again to note, as did your counsel, that this principle applies also to conditional sentences of imprisonment, which are sentences of imprisonment even though served in the community and not in an institution; and (4) where consecutive sentences are imposed, the combined sentence should not be unduly long or hard (the totality principle).

AGGRAVATING AND MITIGATING CIRCUMSTANCES Aggravating Factors [34] The following are, I find, aggravating circumstances in this case. [35] These offences involved a fairly high degree of moral blameworthiness. The maximum sentences available for these offences speak of how seriously Parliament views them, the most serious being the offence of forgery which has a maximum sentence of 10 years in prison. [36] The offences affected not only the insurer PBC but also the clients for whom, without their knowledge, you submitted false information and claims. I do not need Ms. Steinfort's Community Impact Statement (submitted for PBC) in order to conclude that your offences damage the fundamental tenets of an insurance system which necessarily relies heavily on those who participate to do so honestly. [37] Your offences must have caused extreme embarrassment and anxiety for the plan members who found that false claims had been submitted on their behalf and, in some cases, that PBC had overpaid them as a result. I am advised also that the false claims brought the insured plan members and others covered under the plans closer to the maximum annual and lifetime amounts payable to them under the plan. [38] In addition, you committed some of the offences over a period of several months, and you then committed the offence in Count 4 a considerable time later. You committed the Count 4 offence

even after PBC raised concerns with you about your billings. [39] Your offences involved several different types of false representation. These were not single or isolated offences. Mitigating Factors [40] There are mitigating circumstances, and they are important. [41] You have no criminal record at all. [42] You have a good background of hard work in your chosen field, and you have given a great deal of effort and compassion in that field. You have also worked diligently over a long period to gain first your academic education and later your numerous further qualifications in various forms of medical or therapeutic treatment. [43] In the comments you made personally to the Court during the sentencing proceeding, you expressed your profound regret and remorse for the consequences of your actions. [44] I have referred to the medical challenges you have faced. However, I do note that there is no evidence that these were causing you difficulty or distress at the time of the offences. [45] Your offences did not produce direct financial benefit for you personally or for ADNC. However, I do note that, as your counsel acknowledged on your behalf, you would have benefited personally or through ADNC had your offences continued.

CASE AUTHORITES [46] Counsel advised that few, if any, reported or transcribed cases have facts similar to the facts of your case. However, while the case authorities do not provide direct or specific assistance in the present task, they do provide general guidance concerning how sentences for frauds and related offences are to be determined. [47] Noting that these authorities involved much larger-scale frauds than yours, Ms. Street referred to the following authorities as providing this general guidance: R. v. Bogart (2002), 61 O.R. (3d) 75 (C.A.); and R. v. Taylor-Wright, [2010] O.J. No. 4578 (C.J.). Mr. Uzelac referred me to the following additional authorities: R. v. Cheng, 2006 BCPC 210; R. v. Bavarsad, 2008 BCCA 137; and R. v. Coffin, 2006 QCCA 471. All of these are helpful. [48] There is no serious dispute about the principles that apply in your case. It is clear that for offences relating to fraud and forgery, general deterrence is a powerful concern. Nonetheless, there may be special circumstances where general deterrence, though still important, may to some extent give way to other sentencing principles and justify a conditional sentence of imprisonment. These circumstances may include, for example, where the fraud is relatively small, as, of course, your frauds are; where full restitution has been made before sentencing; or where there are exceptional personal

circumstances such as ill health or advanced age. These are circumstances mentioned by the Ontario Court of Appeal in R. v. Bogart at para. 38, and are not suggested to comprise an exhaustive list. [49] Your offences in my view call for sentences that send a strong message of deterrence and denunciation so that other people will be dissuaded from similar conduct. [50] General deterrence is particularly valuable as a sentencing objective in relation to offences committed with planning, as I find yours were, rather than those committed in the heat of the moment. This is because planned offences, such as yours, are committed with an eye to the potential risks of detection and successful prosecution. [51] Specific deterrence also has an important role in your case. The sentence should aim to deter you from any future similar conduct. [52] The sentence should also aim to facilitate your rehabilitation. You certainly have the ability and the skills to engage in a rehabilitative process and to see your way to successful reengagement in the community. [53] I cannot agree with your counsel's submission that heavy weight should be given to the interest of the community in your returning immediately to work in your field. In my view, your rehabilitation and specific deterrence first require careful attention. I appreciate that a conditional discharge would benefit you in reducing the stigma and the personal consequences associated with your offences, but I do not conclude that a conditional discharge would satisfy the sentencing principles that are required in this case. [54] For similar reasons, I conclude that a suspended sentence is not the appropriate sentence.

SENTENCE [55] I conclude that your offences require a period of imprisonment to be served in the community as conditional sentences of imprisonment. [56] The appropriate length of these conditional sentences of imprisonment is six months, for the offences in each of Counts 1 through 4. Those sentences will be served concurrently one to another. [57] I have considered the Crown's submission that the sentence for the offence in Count 4, which is the offence of attempted fraud committed at a later time, should attract a consecutive sentence to be served after the sentences for the offences in Counts 1 through 3. However, because of the totality principle I do not agree that it should. In the circumstances, a consecutive sentence for the offence in Court 4 would result in an aggregate period of conditional (or community) imprisonment which would be unduly long and harsh. [58] The conditional sentences of imprisonment will each -- and they will be identical in this regard and concurrent in every way -- involve house arrest for a period of three months, with the following exceptions. You will be entitled to leave your residence for the purposes of work according to a predetermined schedule worked out with your conditional sentence supervisor. You will be entitled to leave the residence in order to perform community work service, which I am going to require as another condition of

your sentence, again according to a predetermined schedule worked out with your conditional sentence supervisor. You will be entitled to leave your residence for your own medical and dental appointments with the prior written approval of the conditional sentence supervisor or in the case of a medical or dental emergency. [59] After the three-month period of house arrest, a curfew will apply for the remainder of the conditional sentences of imprisonment. The curfew will require you to remain in your residence -- I am not sure that we have discussed hours, and if this creates logistical difficulties, counsel can raise the matter with me -- from 7:00 p.m. to 7:00 a.m. [60] I am not going to require that you write letters of apology, as the Crown suggested you should. I explained my reasons during counsels' submissions. [61] You will also be required as a term of your conditional sentences of imprisonment to perform an aggregate total 50 hours of community work service as directed by your conditional sentence supervisor. [62] There will be other terms. Some of them are required by law, including that you keep the peace and be of good behaviour. [63] You are to live in your current residence and remain there except with the permission of your conditional sentence supervisor. [64] You are to report to the office to which you went for the preparation of the pre-sentence report. You

are to do so by 4:00 p.m. this coming Wednesday, October 24, 2012, and you are to report to your assigned conditional sentence supervisor thereafter as that person directs you to. [65] Now, is there anything that should be clarified? Are there any additional conditions that should be addressed? [66] MS. STREET: The only condition the Crown had suggested that has not been addressed has been the counselling or programs as directed by a conditional sentence supervisor. [67] THE COURT: I think it was you yourself, Ms. Street, who made the submission that the program recommended in the pre-sentence report was not a good fit with Ms. De La Boursodiere's situation. [68] MS. STREET: Yes, that specific program. I did make that submission. I was just simply bringing it to the Court's attention that that condition had not been addressed. That is all. [69] THE COURT: I am not going to order that Ms. De La Boursodiere undertake counselling. If it is offered to her, I expect that, in consultation with her counsel, she will seriously consider the suggestion that it would be useful to her. If she decides to take counselling or a program recommended to her by her conditional sentence supervisor, then she may leave her residence for that purpose during the period of house arrest, again with written permission, given ahead of time, of her conditional sentence supervisor. [SUBMISSIONS RE CURFEW

CONDITION] [70] THE COURT: Would it serve everyone's purposes if the curfew were to have the same exceptions as the house arrest? In other words, Ms. De La Boursodiere could be outside her residence during curfew hours if the purpose was for work, as prearranged with her conditional sentence supervisor, or for medical or dental prearranged appointments, or on a medical or dental emergency, or for counselling or programming recommended to her by her conditional sentence supervisor, in each case (except on an emergency) with that person's prior written permission? [71] MR. UZELAC: I think that might clear it up. I think that might work. [72] THE COURT: Then that is how the curfew will read. Also, I should have mentioned that community work service could also be a basis for being outside the home, again as directed and on dates and at times for which prior written approval has been given. [73] Now, are there any other concerns or matters to raise? Anything further that needs to be addressed? I invite Madam Registrar to raise any concerns if the terms of the sentences were not clear. [74] MS. STREET: The only outstanding matter is the victim fine surcharge. [75] THE COURT: And? [76] MS. STREET: Given the information we have received, the Crown is taking no position on it. [77] THE COURT: Thank you. Are you asking that it be waived? [78] MR. UZELAC: Yes, I would ask that. [79] THE COURT: Then the victim fine surcharge will be waived. "H. Holmes, J." The Honourable Madam Justice H. Holmes