R. v. Roberts

2019 BCSC 338 R. v. Roberts

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Roberts, 2019 BCSC 338 Date: 20190311 Docket: X080178 Registry: New Westminster Regina v. Kirk Dennis Roberts Before: The Honourable Madam Justice Shergill Oral Reasons for Sentence Counsel for Crown: B. McKinley Counsel for Accused: I. Donaldson, Q.C. Place and Date of Trial/Hearing: New Westminster, B.C. February 14 & 15, 2019 Place and Date of Judgment: New Westminster, B.C. March 11, 2019 Table of Contents I. Overview.. 3 II. Positions of the Crown and Defence. 3 III. Sentencing Principles. 4 IV. Application of Sentencing Principles in this Case. 4 A. Circumstances of the Offence. 5 Background. 5 The Offence. 6 Mr. Roberts' Role. 10 B. Circumstances of the Offender 13 C. Matthew Brooks' Sentence. 19 D. Aggravating Factors. 19 E. Mitigating Factors. 22 1. Admissions by the defendant 22 2. Delay. 23 3. Passage of time between the Offence and conviction. 23 4. Legitimate business and not a scam.. 23 5. Moral Blameworthiness. 24 6. Limited benefit from the fraud. 24 7. Remorse. 24 8. Aftermath of the Offence. 24 9. Community Support 25 F. Appropriateness of a Conditional Sentence Order 25 V. Achieving the Main Sentencing Objectives. 27 Conclusion. 30 VI. Sentence. 30 I. Overview [1] On October 15, 2018, I found Kirk Dennis Roberts guilty of fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code, R.S.C. 1985, c.

C-46. [2] The conviction followed admissions made by Mr. Roberts that between January 1, 2007 and July 4, 2008 (the "offence period"), he knowingly provided documents to Scotiabank containing false information about the accounts receivable of Aggressive Road Builders ("ARB"). At the time that Mr. Roberts provided this false information, he knew that Scotiabank would likely rely on it. On the strength of the false information provided by Mr. Roberts and his co-accused, Matthew Brooks, Scotiabank approved a $7 million operating line of credit to ARB. Scotiabank lost $6,030,688 (excluding interest) as a result of the deception of Mr. Roberts and Mr. Brooks. [3] I am now tasked with determining the appropriate sentence for Mr. Roberts. II. Positions of the Crown and Defence [4] The Crown seeks a penitentiary sentence of two-to-three years for Mr. Roberts. In doing so, the Crown submits that society's denunciation of the offence and the deterrent effect are accomplished only if the sentence responds to the magnitude of the fraud. The Crown relies on the various case authorities which reveal a general tendency for the court to impose sentences at the upper end of the range in cases of frauds exceeding several million dollars (see R. v. Bath and Khangura, 2012 BCSC 645 at para. 76). [5] The defence seeks a conditional sentence order instead of true incarceration. Counsel for Mr.

Roberts submits that a conditional sentence order would be in keeping with the principle that a sentence should be proportionate to the gravity of the offence and degree of responsibility of the offender. According to the defence, such a sentence would not be contrary to the public interest, and is a meaningful alternative to incarceration for non-violent offenders. III. Sentencing Principles [6] In Bath and Khangura at para. 38, Madam Justice Holmes (as she then was) summarized the general principles governing the determination of a fit sentence as set out in s. 718 of the Criminal Code: [38] 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; (4) rehabilitation of offenders; (5) reparation to victims or the community; and (6) the fostering of the offender's acknowledgement of responsibility and of the harm done to victims and the community. [7] Madam Justice Holmes noted further, at para. 40 of Bath and Khangura, that to help achieve the sentencing objectives outlined above, the following further principles, as set out in ss. 718.1 and 718.2 of the Criminal Code, are important for the court's consideration: 1. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

2. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

3. The sentence should be increased or reduced to reflect any relevant aggravating or mitigating circumstances relating to the offender or the offence.

4. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. IV. Application of Sentencing Principles in this Case [8] Arriving at a just and appropriate sentence requires a careful balancing of the objectives in s. 718 of the Criminal Code. As noted by Chief Justice Lamer in R. v. Proulx, 2000 SCC 5 at para. 126 (quoting from R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 91): The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community [emphasis omitted]. [9] Both the Crown and the defence agree that there is a wide range of sentencing in cases of this nature - from conditional sentencing orders to prison terms exceeding ten years. Central to each case are the circumstances of the offence and the offender. A. Circumstances of the Offence [10] The evidence in the sentencing proceeding was comprised primarily of lengthy Admissions (with attached documents) made by the Crown and the defence pursuant to s. 655 of the Criminal Code. In addition, the Court was provided with a Pre-Sentence Report ("PSR") prepared by Heather Perry on February 6, 2019. The circumstances

of the offence are as follows. Background [11] In January 2007, Matthew Brooks ("Mr. Brooks") was the vice-president, secretary, and general manager of ARB, a company incorporated in British Columbia in 1968 by his father, Daryl Brooks ("Brooks Sr."). Brooks Sr. was a successful businessman who also ran a company called Imperial Paving. [12] ARB was a long-standing and successful roadbuilding company. It had on average 60 full-time staff in 2007. It generated its revenue from road construction, road maintenance and repairs. The majority of its business was with municipalities of the lower mainland and Fraser Valley, including Delta, Surrey, Burnaby, Langley and Abbotsford. [13] On March 13, 2007, Mr. Brooks became president of ARB and continued with the roles of secretary and general manager. Also in March 2007, Mr. Brooks assumed control of the company from his father, and held the majority share interest in ARB. [14] Mr. Roberts first began working for ARB in 1997 as a labourer. He left ARB in 1998, only to return in 2002. From 2002 onwards, Mr. Roberts worked at ARB in various capacities. However, sometime between August 2005, when the office manager (Cheryl Tingstad) left ARB, and January 1, 2007, Mr. Roberts became a manager of ARB. The company represented him as a controller on some of its documents. [15] During the offence period, Mr. Roberts was the office manager of

ARB. His responsibilities included overseeing the office staff, organizing crews, ordering materials, reviewing project draws, dealing with inspectors, engineering firms, employees and human resource issues, reviewing timesheets and daily reports from foremen, and dispatching crews and equipment. Mr. Roberts had two support staff in the office - Kelly Dodge the bookkeeper, and one other person. Mr. Brooks was the absentee boss who was rarely there. [16] Mr. Roberts has no accounting degree or diploma. He did not manage the bookkeeping or accounting of ARB. He did not make entries and changes to the financial books and records of ARB. The person who made the entries was Kelly Dodge. Mr. Brooks was in charge of directing the entries. Mr. Roberts did not post payables, deposits, invoices, or do any bookkeeping or rate checks. He gave directions to staff about a variety of skills-related matters. The Offence [17] In the fall of 2006, ARB held its business accounts with the Royal Bank of Canada ("RBC") including a line of credit account in the approximate amount of $7 million. Mr. Brooks approached Scotiabank to enquire about transferring ARB's banking business from RBC. Mr. Brooks was seeking a $7 million line of credit to pay off ARB's loan to RBC and then continue a credit relationship with Scotiabank. [18] Mr. Brooks and Mr. Roberts met Debbie Scott, Credit Solutions Manager for

Scotiabank at the commercial banking centre in Surrey, on February 2, 2007. [19] Between February 2 and February 13, 2007, Mr. Brooks and Mr. Roberts, on Mr. Brooks' instructions, provided Ms. Scott with various documents requested by her to assess their credit application. These documents included an Aged Accounts Receivable Listing as at November 30, 2006, which reflected accounts receivable under 90 days, of $15,501,688.80. This amount was said to include approximately $14 million in municipal accounts receivables (excluding holdbacks). Mr. Roberts provided this information to Scotiabank on Mr. Brooks' instructions. [20] The actual existing municipal Accounts Receivable (excluding holdbacks) for the period ending November 30, 2006, was $0.83 million, a difference of $13.15 million. [21] On March 2, 2007, relying on the documents provided by ARB, Ms. Scott submitted a Credit Presentation to her supervisor. She recommended that ARB be granted an operating line of credit for $7 million. Scotiabank approved the line of credit for $7 million, and sent Mr. Brooks a commitment letter dated March 13, 2007. The commitment letter included terms and conditions (the "covenants"). [22] On both March 13 and March 22, 2007, Mr. Brooks acknowledged and accepted the covenants by signing the commitment letter. [23] On March 23, 2007, Scotiabank opened a business account for ARB to which

Scotiabank could transfer monies from the approved Line of Credit. The Line of Credit account was opened on June 11, 2007 for $7 million. That same day, $7 million was transferred to the line of credit account to the business account, after which a bank draft from the business account was made payable to RBC for $7,036,191.18, to pay the outstanding credit balance owed by ARB to RBC. [24] By June 25, 2007, the business account was in an overdraft position by $617,836.58, with no funds in the line of credit account to cover the overdraft. During the next ten months, the business account was overdrawn by ARB on a regular basis. [25] As a result, in January 2008, Scotiabank transferred the management of the accounts held by ARB from Debbie Scott to Cheryl Conn, Senior Manager for the Special Accounts Management Group, who specialized in managing problematic commercial accounts. On May 13, 2008, Ms. Conn delivered demand notices providing ARB with ten days to pay out the $7 million line of credit. [26] On May 26, 2008, Scotiabank agreed to extend time to ARB to pay the line of credit, provided that ARB would allow the bank to appoint a monitor to review its financial accounts. On May 27, 2008, Mr. Brooks attended at the office of Deloitte and Touche Restructuring Inc. ("Deloitte"). He met with Ms. Conn and Jervis Rodrigues, then a partner with Deloitte in the restructuring and

insolvency area. Mr. Brooks signed documents appointing Deloitte as a monitor for ARB. [27] Monitors from Deloitte attended the office of ARB in May and June 2008 in an effort to examine its books and records. Melinda McKie, Vice-President with Deloitte, attended the offices of ARB and reviewed some of the books and records provided by ARB, along with bank records provided by Scotiabank. It appeared to her, after a few days of examining the documents and books, that at least some of the accounts receivable that ARB was reporting as still outstanding had already been paid. [28] In carrying out what they referred to as a "business review" of ARB's finances, the Deloitte monitors were limited in how they could obtain information from ARB. They did not carry out any independent searches or examinations of documents. They were limited to making requests to ARB and relying on ARB to produce the relevant documentation. [29] The Deloitte monitors specifically and repeatedly requested copies of the contracts that ARB held with the various municipalities and specifics regarding the accounts receivable. These requests were made to both Mr. Brooks and Mr. Roberts. Mr. Brooks failed to provide Deloitte with the information they sought. Mr. Roberts provided only the information authorized by Mr. Brooks to Deloitte, and referred all questions to Mr. Brooks. Mr. Roberts did not participate in

any meetings with the Deloitte monitors. [30] In a June 16, 2008 report to Scotiabank, the Deloitte monitors conveyed their concerns that, despite repeated assurances, ARB failed to meet commitments to provide requested information by specific dates. Consequently, the Deloitte monitors felt that they did not have sufficient information to conclude on the realizable value of the accounts receivable. [31] In late June 2008, Mr. Brooks requested a meeting with Ms. Conn's supervisor Jameel Sethi, Scotiabank Client Relations Manager. Mr. Sethi flew from Toronto to Vancouver and met with Mr. Brooks at Deloitte's offices on July 3, 2008. Ms. Conn and Mr. Rodrigues were also present in that meeting. During the meeting, Mr. Brooks provided a document setting out current contract jobs held by ARB and the associated cash flows expected from those projects over the next six months. [32] During the July 3, 2008 meeting, Mr. Sethi asked Mr. Brooks for a schedule setting out the current accounts receivable for each of the projects as of that date. Mr. Brooks contacted Mr. Roberts by telephone and asked Mr. Roberts to provide that information as quickly as possible. After about an hour, Mr. Roberts sent an email to Mr. Rodrigues, attaching a document showing that ARB had current outstanding accounts receivable totaling approximately $3.4 million. That amount was substantially less than the

approximately $21 million that had been reported on the last monthly interim financial report sent by ARB to Scotiabank. [33] When asked to explain the difference, Mr. Brooks acknowledged that the excess accounts receivable that were reported by ARB were not actually accounts receivable owed by the various municipalities as claimed. He stated that he had caused the reported accounts receivable amounts to be inflated. Mr. Brooks claimed that the excess in reported accounts receivable amounts were actually monies that were owed to him by certain individuals and companies that he had recorded through his shareholder loan account. He explained that it would be difficult for him to get the money back for a number of reasons. [34] On August 6, 2008, Scotiabank petitioned for a bankruptcy order against both ARB and Mr. Brooks. Bankruptcy orders were granted against ARB and Mr. Brooks on August 19, 2008. Appeals of the orders were dismissed on August 21, 2008. Mr. Brooks applied unsuccessfully to set aside the dismissal of his appeal. [35] Deloitte was appointed Trustee in Bankruptcy of both estates. Deloitte managed to recover only $408,850.55 for Scotiabank, thereby resulting in a net loss to Scotiabank of $6,030,688. [36] The matter was referred to the RCMP. [37] A Forensic Accounting Report prepared by Darcy Wong was tendered into evidence. Mr. Wong's expertise in the area of

forensic accounting was admitted, as were the opinions and findings contained in Mr. Wong's report dated May 1, 2012. Mr. Wong examined the documents submitted to Scotiabank by ARB and compared them to records provided to the RCMP by the various municipalities. [38] Mr. Wong concluded that the amounts reported by ARB for Accounts Receivable greatly exceeded the actual Accounts Receivable based on records. In his Summary of Findings, Mr. Wong concluded that the municipal Accounts Receivable balances, aged to 120 days, on all 12 ARB summaries exceeded the Accounts Receivable calculated by amounts ranging from $3.74 million to $12.32 million. When the holdbacks are excluded in these comparisons, the differences between the balances are even greater, ranging from $4.75 million to $13.15 million. [39] After a lengthy investigation, Mr. Roberts and Mr. Brooks were charged on November 21, 2014. Mr. Roberts' Role [40] In order to maintain the line of credit, ARB was required to abide by the covenants which required, inter alia, that the company provide Scotiabank with: monthly interim and annual financial statements; monthly borrowing base certificate including information on accounts receivable, accounts payable; and monthly aged listings of accounts receivable and accounts payable. [41] Mr. Brooks provided Scotiabank with monthly interim financial statements. These included a

borrowing base certificate supplied by Mr. Roberts, and monthly aged accounts receivable and payable, balance sheet and income statements supplied by Ms. Dodge. [42] Scotiabank relied on the documents submitted by ARB each month to determine whether to adjust the amount of the Line of Credit. [43] Mr. Roberts knew that the actual accounts receivable of ARB were much lower than what was reported to Scotiabank in the aged Accounts Receivable listing from November 2006. Mr. Roberts also came to learn that the books inherited from Cheryl Tingstad were inaccurate. Mr. Brooks has since admitted that Ms. Tingstad adjusted Accounts Receivable numbers. [44] The misinformation concerning receivables arose from the allocation of deposits. On a regular basis, substantial deposits would flow into the company from Mr. Brooks, who would instruct how those deposits should be allocated, i.e., to which Accounts Receivable, or if they should be allocated to the shareholders' loan account. These were Mr. Brooks' decisions, not Mr. Roberts'. The books of ARB were not Mr. Roberts' responsibility, and he played no part in making entries. Ms. Dodge was the person who printed out the monthly aged accounts receivable and payable, balance sheet and income statements based on the classification of entries directed by Mr. Brooks. [45] Mr. Roberts was aware at the time each monthly report was submitted to

Scotiabank that the actual accounts receivable for ARB were much lower than what was reported by Mr. Brooks. [46] Ms. Scott would not have recommended that Scotiabank approve the line of credit if Mr. Brooks had provided her with true and accurate information about the Accounts Receivable of ARB at the time of the credit application. In addition, had Ms. Scott been provided with true and accurate information about the monthly Accounts Receivable for ARB, she would not have maintained the line of credit at $7 million. [47] Mr. Roberts held a senior position at ARB. He earned a base salary in the range of $90,000-$120,000 per annum. Mr. Roberts' annual salary and benefits during the offence period was approximately $150,000. This included a year-end performance bonus, leased vehicles for both him and his spouse, and fuel cards for gas. Mr. Roberts had a company credit card for business expenses but there is no evidence that he used that for anything other than business expenses. [48] Mr. Roberts was not alone in earning a substantial income and benefits from his employment with ARB. The superintendents of various projects received similar wages, substantial bonuses, leased vehicles, and fuel cards. [49] During the bankruptcy process, Deloitte seized computers and hard drives from ARB including the hard drive for Mr. Roberts' work computer. Mr. Roberts brought his computer back to

the office from off-site, when requested. He did not seek to conceal anything. [50] The hard drive from Mr. Roberts' work computer was subsequently obtained as part of the police investigation for fraud. Several documents and emails located on the hard drive illustrate the depth of his involvement in managing the finances of ARB from at least 2006 to 2008. Copies of those documents and emails were included as part of the technical examination report prepared by Corporal Alain Filotto, on March 13, 2014. Mr. Roberts admits that the copies extracted from the hard drives are copies of documents and emails that were created, sent or received by him. [51] Mr. Roberts admits that he knew that the documents he provided to Scotiabank during the offence period, which reflected Mr. Brooks' directions, contained false information about the Accounts Receivable of ARB. He also knew that Scotiabank would likely rely on the information in the documents provided. Scotiabank did rely on the false information submitted, and thereby put $7 million at risk, ultimately losing over $6 million. B. Circumstances of the Offender [52] Mr. Roberts is a 50-year-old businessman who was born in Burnaby and raised in Langley. Other than this offence, he has no criminal record. [53] Mr. Roberts was raised in a supportive, prosocial family home and remains very close with his parents and sister. He is married

with three children. He resides in Langley with his children and his wife, Richelle. He and Ms. Roberts have been together since 1991. They have a strong and supportive relationship, and Ms. Roberts was present throughout the court proceedings before me. Also residing in the Roberts' home are Mr. Roberts' in-laws. [54] Mr. Roberts received his undergraduate degree from Simon Fraser University in 1991. He holds a Bachelor in Commerce and Business Administration. He also took a financial planner's licence. [55] Due to the recession, Mr. Roberts initially had a difficult time finding a job. In the early years he worked as a labourer in construction with various companies. After leaving ARB in 1998, Mr. Roberts started working as a teller at Coast Capital Savings and then as a financial service representative. In the summer of 1999, Mr. Roberts was approached by Matthew Brooks to work at his 3D mapping software company. The job required him to move to Las Vegas and then to Seattle. [56] Mr. Roberts decided to return to Langley in the fall of 2001 and joined another of Mr. Brooks' companies called Ranchland Contracting Ltd. which built residential homes. Ranchland eventually went out of business and Mr. Roberts returned to ARB. [57] Mr. Roberts worked at ARB until the company was petitioned into bankruptcy in 2008. Mr. Roberts was devastated when ARB went bankrupt and Ms. Roberts

described it as his "darkest hour" saying that he was "broken". Ms. Roberts' parents moved in with them around this time, adding to the financial pressure and contributing to Mr. Roberts' decision to go back into business with Mr. Brooks. Mr. Roberts has never complained about the added financial pressure of having his in-laws live with them. Mr. Roberts' father-in-law has been battling cancer and Mr. Roberts has done his best to render assistance. [58] After the demise of ARB, Matthew Brooks and his wife started a new company called Blackrete Contracting. Despite what happened to ARB, Mr. Roberts remained loyal to Matthew Brooks and agreed to work at Blackrete. Mr. Roberts says that he made it clear to Mr. Brooks that he would not tolerate the same conduct which occurred at ARB. Mr. Brooks assured Mr. Roberts that he would manage the business properly, but within a year Mr. Brooks started engaging in the same behaviours that brought the demise of ARB, i.e., spending corporate money, causing employee paycheques to bounce, and leaving Mr. Roberts scrambling to ensure the employees would get paid. [59] Due to lack of trust of Mr. Brooks in the business community, Mr. Roberts decided to use his own previously dormant company Cityscape Roadworks to purchase materials, and to buy and lease equipment to Blackrete Contracting. Things came to a head when Mr. Brooks persuaded developers

to write cheques to individuals instead of paying their debts to Blackrete. In all, Mr. Brooks collected over $330,000 from vendors, leaving Mr. Roberts out-of-pocket. This was the proverbial straw that broke the camel's back. Mr. Roberts successfully sued Blackrete Contracting and obtained judgment for $330,000. [60] Mr. Roberts cut off all ties with Mr. Brooks in December 2011, though he did call him in 2015 when Mr. Brooks' son died. [61] Mr. Roberts incorporated his own company, Blackrete Paving Ltd. in July 2011, which he has been successfully operating for the past eight years. Several of the employees from Blackrete Contracting came with Mr. Roberts. The early years were a struggle for Blackrete Paving. Mr. Roberts had to sit with dozens of suppliers to explain the situation and restore trust. Despite the challenges, Blackrete Paving is a thriving, successful business. Mr. Roberts has 18 employees who depend on their employment with Blackrete. Mr. Roberts' spouse also works with him at Blackrete Paving, and he has been teaching her how to run the business in the event he is sentenced to jail. However, she has been finding this difficult. Mr. Roberts feels the weight of responsibility for the families that depend on their business for their livelihood. [62] The company has little turnover and many long-term employees who are treated like family by Mr. Roberts. However,

Mr. Roberts is a "one man show" because he does not trust anyone else to do the banking for the books after his experience at ARB. [63] Mr. Roberts' children are currently ages 16, 20, and 21. At the time of the offence, they were five, nine, and ten years old. They have lived under the spectre of this offence for a substantial portion of their lives. All three children have provided letters to the court attesting to Mr. Roberts' positive influence on their upbringing. Mr. Roberts has been an active and involved father by all accounts. Despite work demands he remained connected to his family and involved in his children's lives. He volunteered for over a decade as both the coach and board member for his children's youth soccer club. [64] Mr. Roberts played soccer from the ages of five to 45. He played at top levels throughout his life including as an adult playing in the Premier league. He ran his own summer league men's team for over 20 years, but stopped after he was charged in this case. Mr. Roberts was unable to join the Road Builders Association because of the criminal charges. This has hindered his business. He resigned as a resident Director on October 15, 2018, after pleading guilty. [65] The effects of the criminal charges have had a profound impact on Mr. Roberts' family. They have lost many of their close friends and face conflicts with co-workers and parents of

their children's schools. Mr. Roberts has encountered problems with the school board, which has affected his ability to participate in school activities such as being able to accompany his children on school trips. His children have also experienced stress and anxiety as a result of their schoolmates knowing about the charges against their father. Family friends would refuse to bring their children over for play dates with his children. [66] The media attention generated from this case has also taken an enormous toll on Mr. Roberts and his family. There have been suggestions in the media that Mr. Roberts has ties to organized crime. Mr. Roberts disputes these allegations and I note that there was no evidence before this court of any connections to organized crime on the part of Mr. Roberts. Mr. Roberts attributes these allegations to a deflection on the part of his co-accused, Matthew Brooks, whom Mr. Roberts says claimed to be associated with Hells Angels gang members. [67] As noted by the court in the sentencing proceedings of Mr. Brooks (R. v. Brooks, unreported, Oct. 31, 2007, Surrey, 207498-1 (B.C. Prov. Ct.)), Mr. Brooks' home was shot at in 2011. Mr. Roberts says that around the same time, he and his family started receiving death threats from Matthew Brooks and his associates. Mr. Roberts believes that Mr. Brooks has told those whom he was indebted to that they should

look to Mr. Roberts for the money that Mr. Brooks owes them. They have received calls to the house and he and Ms. Roberts have observed cars parked outside. Threatening letters have been left in his mailboxes at home and at work. Mr. Roberts' parents also report receiving threatening calls, which have upset them greatly. Mr. Roberts has called the police reporting these threats on two occasions. [68] The criminal charges have also had an enormous impact on Mr. Roberts. Mr. Roberts developed an addiction to painkillers and is currently taking Suboxone. He was first prescribed painkillers in 2000 after a hospital stay. He used them recreationally for years but the difficulties did not start until 2010, when he began to abuse OxyContin which he had obtained from a friend who had a prescription. He started to use OxyContin to help with stress and to feel better physically and emotionally. Eventually he developed an addiction, though he kept it hidden from his extended family and friends. The addiction continued until he went to hospital in February 2017, and was prescribed Suboxone. His dosage has gradually decreased over time but he is still on Suboxone. [69] Despite these charges, Mr. Roberts is highly regarded by his employees as well as a reputable business associate who has worked with him for 15 years. [70] All of Mr. Roberts' employees were present in the courtroom for the

first day of sentencing submissions, and many of them have provided very helpful letters to the court in support. In total, the court received 27 character reference letters, including those from Mr. Roberts' immediate and extended family, friends, employees, and business associates. Universally, the letters describe Mr. Roberts as a hard-working and loyal family man who puts the needs of others above his own, and who has worked hard to try to come to terms with the consequences of his actions. [71] Mr. Roberts was described by many of his references as someone who feels the burden of disappointing his extended family and adding stress to their lives. [72] Several of Mr. Roberts' character references were interviewed by the probation officer who prepared the PSR. Phil Jessa, general sales manager at Ocean Park Ford, has been in business with Mr. Roberts for approximately 15 years. His company currently leases vehicles to Blackrete Paving. He says that the business is always on time with payments and has seen no evidence of Mr. Roberts having criminal associates. [73] Darren Champ is an employee at Blackrete Paving who has worked with Mr. Roberts since their days at ARB. He describes Blackrete Paving as a company which always pays its employees, has outstanding credit, and enjoys a good reputation with the same suppliers as they had at ARB. Mr. Champ notes that Mr. Roberts is

invaluable to the business, as there are some skills that only Mr. Roberts has, such as filing for permits and getting traffic management plans. He describes Mr. Roberts as very hard-working and "honest to a fault". [74] Mike Popowich, another employee of Blackrete Paving, notes that Mr. Roberts was very supportive of him during the time when he bought his first home. He says that Mr. Roberts makes sure his employees always have work even during slow season. [75] Mr. Roberts acknowledged his mistakes both to the probation officer preparing the PSR, as well as to the Court. [76] Ms. Perry prepared the PSR. She reports that Mr. Roberts accepts full responsibility for the offence. He cites misguided loyalty as the cause for his poor decision-making. Mr. Roberts explained the circumstances of the offence as arising from him being under a lot of pressure when Mr. Brooks Sr. pulled away from ARB and Matthew Brooks started looking for a new lender for ARB. At the time, Mr. Roberts was building a house and wanted to keep the company alive so that Mr. Brooks had enough time to get his affairs in order and start managing money properly. In retrospect, Mr. Roberts now realizes that he should never have trusted Mr. Brooks saying "I would have run for cover if I knew then what I know now." Mr. Roberts expressed that at no point did he think that the bank would lose the money as he trusted

that Mr. Brooks would honour his debt. [77] It is evident that Mr. Brooks had an "inordinate level of influence" over Mr. Roberts, which is ascribed by Mr. Roberts' mother as being due to the good reputation of Mr. Brooks' family and their long-term local connections. [78] The PSR notes that Mr. Roberts "demonstrated insight into the negative impact his actions had on the bank (victim), the employees and customers of the company and his family." This mirrors my own observation. In a very heartfelt and emotional letter that he read out to the court, Mr. Roberts apologized to Scotiabank and his family and friends. He showed considerable remorse and it was evident that he understands the far-reaching repercussions of his actions and behaviour. [79] Ms. Perry notes that Mr. Roberts does not present with any factors that are known to contribute to criminal behaviour. C. Matthew Brooks' Sentence [80] Mr. Brooks pled guilty to fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code. He was sentenced on October 31, 2017, to three-and-a-half years in jail, and a restitution order for $6,030,688. [81] The Crown sought five years for Mr. Brooks. The defence sought a sentence of two years less a day on a conditional sentence order, and a three-year probation. Alternatively, the defence sought an upper provincial sentence of two years to a low federal jail sentence of three

years. [82] Judge Sudeyko noted that Mr. Brooks had limited family and community support and that he had directly benefited from the fraud as he used that money to pay off a $7 million debt with Royal Bank. [83] In addition to the significantly mitigating guilty plea, Judge Sudeyko found the following additional mitigating factors at para. 101: [101] However, as I say, there are other mitigating circumstances that, while mentioned by the defence, I think are of particular significance to approaching the sentencing of Mr. Brooks. I find that there was a genuine intention to continue to operate his company and the belief that he could, if allowed to continue, repay some or all of the money that was taken, both before and after the discovery of the fraud. With respect to the efforts to compensate or provide restitution to Scotiabank, certainly there was some of that, although that is a lesser factor. I find that he genuinely believed that if he could continue to operate the company, he would, over time, be able to pay off his debts, and it was his intention to do so [84] Judge Sudeyko noted that Mr. Brooks tried to continue to operate the company even after the discovery from Scotiabank; he fought the bankruptcy; and he made the payment back to Royal Bank (para. 102). He noted further at para. 103 that "[a]lthough I don't conclude that it was objectively reasonable to believe that

he could pay back the loan over time to Scotiabank, I think it was a genuine belief." D. Aggravating Factors [85] The magnitude of the fraud, as well as its prolonged nature, are aggravating factors. This was a large-scale fraud of $7 million, with a loss to the bank of over $6 million. That amount alone would ordinarily put this case into the higher end of the range for sentencing. [86] The fraud was complex and prolonged, lasting approximately one-and-a-half years. Despite the fact that the bank was a sophisticated victim with a number of internal safeguards and protocols, Mr. Roberts and Mr. Brooks managed to dupe it out of a substantial amount of money. Perpetrating and maintaining a fraud of this magnitude against the bank required thought and planning. [87] However, I note that many of the cases relied on by the Crown have substantially more aggravating factors than the case at bar. For example: a) They often involve a breach of trust. Breach of trust is considered an aggravating circumstance in the Criminal Code. Breach of trust is not present in this case. b) They frequently involve multiple victims who are particularly vulnerable, and who have lost their life savings. This is not to minimize the impact of this crime on the bank, but rather to recognize that the ability of a victim to recover from a loss that is committed by virtue of the fraud can be an aggravating

factor. That factor does not exist in this case. c) These cases generally involve a sham rather than a legitimate business. The business is set up as a vehicle to commit the fraud. In contrast, Mr. Brooks operated a business, which had a legitimate purpose. d) In virtually every case, the fraud was motivated by greed, with many of the offenders directly benefitting from the fraud. Mr. Roberts' only benefit was that he kept his job. None of the $7 million went to him directly. e) Some of the cases involve repeat offenders, another factor which is missing in this case. [88] R. v. Dieckmann, 2014 ONSC 717, involved two accused who were convicted of fraud following a four month jury trial. Madam Justice Baltman imposed a sentence of four years incarceration plus a fine on Ms. Dieckmann who was convicted of a $5.1 million payroll-deduction service fraud. The co-accused was guilty of fraud of nearly $400,000, and was sentenced to two years less a day and a fine. The sentences were upheld on appeal (2017 ONCA 575 at para. 75, leave to appeal ref'd [2017] S.C.C.A. No. 381). The numerous aggravating circumstances in the Dieckmann case were: the fraud was large in scale and driven by greed; the fraud was complex and prolonged; the offenders were part of a criminal organization; the scheme involved a large number of innocent or unwitting parties; and the offenders stole public money. [89]

In R. v. Slobbe, 2011 BCCA 107, the accused pled guilty to numerous frauds in addition to other offences. A global sentence for the frauds of eight years was upheld on appeal. There was breach of trust, Ms. Slobbe had a lengthy criminal record, the fraud was perpetrated over eight years, and some of the victims were senior citizens. [90] R. v. Fast, 2014 SKQB 161, was a $16.7 million fraud (one of the largest in Saskatchewan's history) that spanned three decades. The business was a sham from the outset with mostly elderly victims who lost their life savings. Mr. Fast was sentenced to seven years of imprisonment and a restitution order of $16.7 million. His daughter, an accountant who facilitated the fraud, was sentenced to 30 months in prison and ordered to pay $1 million in restitution. Neither accused was genuinely remorseful. Both sentences were upheld on appeal, though Ms. Fast-Carlson's restitution order was varied: see R. v. Fast, 2015 SKCA 56, and R. v. Fast-Carlson, 2015 SKCA 86. [91] R. v. Kuriya, 2003 NBCA 63, was a sentence appeal in which the court upheld a two-year prison sentence and restitution order. The accused personally benefited from the approximately $1 million fraud. [92] R. v. Katchatourov and Reznik, 2012 ONSC 3511, involved a mortgage-financing fraud motivated by pure greed. The sentence was four years and restitution orders of approximately $500,000.

This sentence was upheld on appeal: R. v. Khatchatourov and Reznik, 2014 ONCA 464. [93] R. v. Drabinsky, 2011 ONCA 582, leave to appeal ref'd [2011] S.C.C.A. No. 491, involved a public company where individual investors were misled. Mr. Drabinsky received five years on appeal. Mr. Drabinsky derived a significant personal financial benefit from the fraud. Further, the significant mitigating circumstances present in this case were nonexistent in Mr. Drabinsky's. [94] Similarly, the offenders in Bath and Khangura both derived personal benefit from the enormous GST fraud perpetrated on the government. Mr. Bath, whose portion of the fraud was almost $8 million, received four-and-a-half years, and Mr. Khangura received three years for his portion of the fraud, which was approximately $3 million. E. Mitigating Factors [95] There are a number of significant mitigating factors in this case.

1. Admissions by the defendant [96] The mitigating factor which is the most likely to move a sentence out of the usual range is a guilty plea: Dieckmann at para. 40. [97] This matter was originally set for a three week jury trial. Shortly after I delivered my Reasons for Judgment on the delay application, Mr. Roberts re-elected to judge alone. On the first day of trial, Mr. Roberts made significant admissions and his counsel invited me to find him guilty of the offence charged. Defence counsel has characterized this as a guilty plea, to which Crown counsel takes exception. [98] While I agree with Crown counsel that the admissions are not the same as a guilty plea, for all intents and purposes, the affect of Mr. Roberts' admissions was similar to what would have occurred if he had entered a guilty plea. However, the admissions were made very late in the day after years of numerous court appearances and a lengthy delay application. [99] Regardless, Mr. Roberts' admissions did obviate the need for a lengthy trial. This is a mitigating factor, which, while not to the same degree as a guilty plea entered early in the process, does have a positive impact on Mr. Robert's sentence.

2. Delay [100] A sentence may be reduced for excessive delay which falls short of a violation of s. 11(b) of the Charter: R. v. Nasogaluak, 2010 SCC 6 at para. 53. [101] In my Reasons for Judgment on Mr. Roberts' delay application (indexed at 2018 BCSC 2300), I found that there was a delay of 35 months after accounting for defence delay and discrete exceptional events. However, I dismissed the application on the basis that the delay was not unreasonable given the complexity of this matter. Had this matter have been one of ordinary complexity, the charges very likely would have been dismissed on account of delay. In the circumstances, I find that the delay in this matter coming to trial is a mitigating factor.

3. Passage of time between the Offence and conviction [102] The length of time that has passed since the commission of the offences, and since the offender was arrested and charged, can also be a mitigating factor: Bath and Khangura at para. 77. [103] The events that underlie these charges are now ten years old. During that time, Mr. Roberts has had no other convictions while he has been at large in the community (see R. v. Loewen (2002), 168 Man. R. (2d) 48 at para. 14 (Man. Prov. Ct.)).

4. Legitimate business and not a scam [104] Crown counsel admits that this was not a sham business. The business had revenues of approximately $20 million per year. The balance sheets and income statements for the company were all real; the Accounts Receivable and the shareholder loan balance were the only untrue items. Mr. Roberts' participation in the fraud was that he did as he was told by Mr. Brooks. [105] As noted by Judge Sudeyko, Mr. Brooks genuinely believed that, given enough time, he could pay back the loan over time to Scotiabank. [106] I find that Mr. Roberts in turn genuinely believed that, given enough time, Mr. Brooks could and would pay back the loan to Scotiabank.

5. Moral Blameworthiness [107] While Mr. Roberts' actions are without question, reprehensible and inexcusable, his degree of moral blameworthiness is limited. He did not act wilfully or deliberately to defraud. [108] He was not the mastermind or the directing mind in this fraud. Mr. Roberts' involvement in the fraud was following orders to send certain documents and reports to Scotiabank. All representations made to Scotiabank by Mr. Roberts were based on Mr. Brooks' instructions. He conducted calculations with numbers provided to him that were inaccurate. He had limited knowledge and understanding of the depth of the problem. [109] In his grossly misdirected loyalty to Mr. Brooks, Mr. Roberts thought that he was doing some good by keeping the business alive.

6. Limited benefit from the fraud [110] This was not a crime motivated by greed. Aside from keeping his job, Mr. Roberts did not directly benefit from the fraud. None of the $7 million went to Mr. Roberts or for his personal use or benefit.

7. Remorse [111] Mr. Roberts showed a significant degree of remorse. He was cooperative during the bankruptcy process, and did not seek to conceal anything.

8. Aftermath of the Offence [112] Mr. Roberts and his family have had to endure extreme hardship as a result of the offence. They have received death threats and Mr. Roberts has lived in constant fear for his family's safety and security since the offence. The events which cause him to fear for their safety are corroborated by his wife and his parents, and to some degree, the decision of Judge Sudeyko. [113] This case has garnered media publicity leading to public humiliation and embarrassment. Mr. Roberts and his family (and children) have lost friends as a result. It affected Mr. Roberts' ability to participate with his children on their school trips and coaching their soccer teams. Mr. Roberts was not able to join the Road Builders Association because of the criminal charges which has affected his business. [114] In addition, the stress and anxiety stemming from his experience with the criminal justice system has taken its toll on Mr. Roberts. He began abusing pain medication, which led to an addiction for which he required treatment in February 2017, through the Rapid Access Addiction Clinic at St. Paul's Hospital. Though he is now better able to manage his addiction, it continues to remain an ongoing struggle requiring medical assistance and monitoring.

9. Community Support [115] Many people who depend on Mr. Roberts for their employment provided letters in support. The fact that Mr. Roberts has been able to earn back the trust of his employees and business associates is a testament to his commitment to reform his life and right the wrongs that he has committed. [116] If Mr. Roberts were to serve a prison sentence, there is a very real risk that his business, and the livelihood of the 18 employees and the families that depend on them, would suffer. Even if his wife were to take over the company, there is a significant likelihood that she would not be able to manage the company as successfully as he has been doing. Mr. Roberts has specialized skills that make it difficult for him to be replaced. Risking the company would also pose a risk to the 18 innocent employees and their families who are financially dependent upon Blackrete Paving. F. Appropriateness of a Conditional Sentence Order [117] The Crown and defence agree that the principles of denunciation and general deterrence are central to the sentencing process in cases of this nature. However, they disagree as to whether these objectives can be adequately addressed through a conditional sentence order. [118] In Dieckmann at para. 36, Madam Justice Baltman summarized the applicable criteria for a conditional sentence: [36] Section 742.1 sets out four criteria a court must

consider before deciding to impose a conditional sentence: (1) the offence must be one that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental principles of sentencing. [119] Turning to the first criterion, I note that when Mr. Roberts committed this crime, the offence of fraud was not punishable by a minimum term of imprisonment. Thus, the first criterion is met. [120] This case also meets the second criterion. Applying the purposive approach to s. 742.1(a) endorsed in R. v. Proulx, 2000 SCC 5 at para. 127, it is my preliminary determination that a penitentiary term and probationary measures are inappropriate. Given the degree of culpability of Mr. Roberts, and the nature of the crime, I find that the appropriate range of sentence in the circumstances of this case is a term of imprisonment of less than two years. [121] I also do not believe that Mr. Roberts would pose a danger to the community if a conditional sentence were imposed. The crime was non-violent in nature. Mr. Roberts has no prior criminal record, and during the ten years since the offence was committed, he has been at large in the community without any

convictions. I find that the risk of Mr. Roberts re-offending or being involved in any criminal activity is low. [122] Having satisfied the prerequisites of s. 742.1, I turn now to consideration of whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 and 718.2. As noted by then Chief Justice Lamer at para. 127 of Proulx, "[t]his follows from Parliament's clear message to the judiciary to reduce the use of incarceration as a sanction". V. Achieving the Main Sentencing Objectives [123] The Crown argues that imposition of a conditional sentence in this case will not meet the objectives of denunciation and deterrence, as it is a more lenient sentence than a prison term. [124] However, our courts have consistently rejected the notion that conditional sentence orders are lenient. As noted by the court in Proulx at para. 22, a conditional sentence is a punitive sanction. It is a meaningful alternative to incarceration for nonviolent offenders. Conditional sentences can be even more effective than incarceration in realizing the objectives of rehabilitation, community reparations, and promoting a sense of responsibility, while still achieving denunciation and deterrence. [125] As held by the court in R. v. Kratky, [1997] B.C.J. No. 3167 at para. 16 (S.C.): A conditional sentence imposes substantial restraint upon the

liberty of the offender. It is not subject to parole and therefore must be served in full . The practical reality is that while a jail sentence may sound more severe, a conditional sentence in totality may be equally or significantly as severe as the jail sentence. [126] This is particularly the case as a conditional sentence order requires an offender to serve all of the sentence, unlike most sentencing of incarceration: R. v. Leefe, [2007] O.J. No. 3461 at para. 10 (Sup. Ct. J.). [127] Chief Justice Lamer provides the following guidance in Proulx at para. 127 with respect to the suitability of a conditional sentence order: 8. 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. [128] Fraud cases in which a conditional sentence has been imposed typically contain significant mitigating factors. These have sometimes been described as "highly unusual personal circumstances" (Dieckmann at para. 39) or "extreme mitigating circumstances" (R. v. Houde, 2005 BCPC 632, quoted in Brooks at

para. 67). In Houde at para. 54, the Court stated that: [54] It is apparent from these and other authorities that the kinds of extreme mitigating circumstances that may give rise to a conditional sentence order include prohibitions from employment by professional associations, extreme public humiliation and embarrassment, extreme hardship to the defendants if jail is imposed, lack of financial benefit from the fraud, an early guilty plea, personal sacrifices by the accused to make restitution and health problems suffered by the accused and their families [129] In contrast to the Crown's authorities, I find that the cases relied on by the defence are more applicable to the circumstances of the case at bar. [130] R. v. Tulloch, [2002] O.J. No. 5446 (Sup. Ct. J.), was a $6.2 million GST fraud against the government. Mr. Tulloch was at first an unwitting participant in the scheme. However, once he became aware of it, he continued participating, and at the direction of others, he brought a good friend of his into the scheme. The Crown sought a sentence of four to six years and a compensation order. The court imposed a conditional sentence of two years less a day with a restitution order of $300,000. [131] The relevant mitigating factors in Tulloch included many supportive character reference letters, a mood disorder and alcohol abuse, his guilty plea, lack of criminal record, and

cooperation during the investigation. His degree of responsibility was mitigated by the fact that he did not initially think he was doing anything illegal. Subsequently, he only continued at the instruction of others. The large number of transactions, the substantial amount lost, the motivation of pure greed, and the similarity to a breach of trust were all aggravating circumstances. [132] In Leefe, the accused was sentenced to an 18-month conditional sentence for operating a telemarketing enterprise which defrauded many people and non-profit organizations of $7 million. Substantial aggravating factors were the offender being the directing mind behind a sophisticated and long-lasting telemarketing scheme, that the scheme affected many vulnerable customers who were re-victimized by his abusive tactics, and conduct which was wilful and deliberately concealed. Mr. Leefe also profited directly from the crimes. However, the court considered mitigating factors such as: he was a first offender; safety of the community would not be in danger; and permitting him to care for his two children and upgrade his education were important for rehabilitation. [133] In R. v. Minnie and Shaw, 2007 BCSC 433, the accused Shaw was found guilty of two counts of fraud and one count of theft. Minnie was the director of the fraud in which investors were defrauded of almost $2 million. Although to some

degree Shaw was being taken advantage of by Minnie, he continued to defraud people for profit after becoming aware of the police investigation (para. 59). Shaw received a conditional sentence of two years less a day, plus a three-year probation term. [134] In R. v. Bunn, 2000 SCC 9, the accused lawyer was sentenced for six counts of breach of trust for misappropriating estate monies. He was initially sentenced to two years in custody. The sentence was reduced by the Court of Appeal to two years less a day, to be served in the community. The Crown appealed to the Supreme Court of Canada, but the appeal was dismissed. The majority held that a conditional sentence and community service could achieve the objectives and principles of sentencing and found no reason to interfere with the appeal court's decision (paras. 22-23). [135] R. v. Walls and Millard, (8 March 2007), Prince George 18826 (B.C.S.C.), bears some similarity to the circumstances of this case. Walls was the president and director of the company involved, and Millard was the controller. They both pled guilty to fraud in a cheque-kiting scheme which defrauded a bank of over $1 million. In his reasons for sentence, associate Chief Justice Dohm noted that the scheme was to keep the companies running and not for personal gain (para. 3). The accused did not receive any benefit apart from a continued salary, and lost their

own money in the company. The court noted that the accused knew what they did was wrong, but they believed they were keeping the company operating through challenging times, and expected that things would balance out eventually (para. 4). They were given a conditional sentence of two years less a day with minimum conditions (paras. 10-11). Conclusion [136] Section 718.2(d) of the Criminal Code requires me to consider the least restrictive sentence that is appropriate in the circumstances with a view to avoiding jail if possible. [137] Having regard to the principles of sentencing, and the interests of justice, I find that there exist significant mitigating circumstances in this case which make a conditional sentence order, with strict conditions, suitable to meet the objectives of deterrence and denunciation. A conditional sentence order with strict conditions can achieve the goal of general deterrence and fittingly express society's condemnation of Mr. Roberts' conduct. VI. Sentence [138] Mr. Roberts, on the charge of fraud over $5,000, of which I found you guilty, I sentence you to a conditional sentence of two years less one day, to be served on the following statutory terms (Compulsory Conditions (s. 742.3(1)): 1. you must keep the peace and be of good behaviour; 2. you must appear before the court when required to do so by the court; 3. you must report to a supervisor

within 48 hours of today's date, i.e. by Wednesday, March 13, 2019, at 3:00 pm, and thereafter whenever required by the supervisor and in the manner directed by the supervisor; 4. you must remain within the jurisdiction of this court, unless you get written permission from either the court or the supervisor to go outside this jurisdiction; 5. you must reside at 2244 - 204A Street, Langley, B.C., and you are not to move without the consent of the court or your supervisor; 6. you must notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; and 7. you must have no direct or indirect contact or communication with Matthew Brooks. [139] In addition I am imposing the following conditions that you must comply with: (Optional conditions s. 742.3(2)): 1. For the first 18 months of your sentence you must remain inside your residence under house arrest.

2. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order.

3. You may be away from your residence during the house arrest hours for up to seven (7) hours a week, to be determined in advance with your supervisor and upon providing proof of your scheduled appointments, in order to attend to medical, dental or financial appointments, religious services, or to fulfill legal obligations regarding compliance with the orders that I have made.

4. You may also be away from your residence with the written permission of your supervisor; however, such permission is to be given only for compelling reasons. You must carry the written permission with you when you are outside your residence during the house arrest hours.

5. You may also be away from your residence during the house arrest hours in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility. If requested, you must provide your supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.

6. You may also be away from your residence for the purposes of completing community service.

7. You must complete 240 hours of community service by July 1, 2020. Your supervisor will determine the nature, location and type of community service work that you must perform.

8. For the last 6 months of your sentence, you shall remain confined to your residence during the hours of 9 p.m. and 6 a.m. seven (7) days a week, except in the case of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility. If requested, you must provide your supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went.

9. You must attend, participate and complete any treatment program designated by your supervisor as appropriate in the circumstances.

10. You are to abstain from consumption of alcohol, non-prescription drugs, or other intoxicants during the entire period of your sentence. [140] While alcohol and drugs were not factors in this particular offence, I find this condition appropriate given the prior history of addiction to painkillers as well as the fact that these substances would not ordinarily be available to an offender if they were serving their sentence in a prison setting. [141] By permitting Mr. Roberts to serve this sentence under house arrest, he will still have the limited ability to run his business to ensure its ongoing viability to the benefit of his employees and the community at large. [142] The community service hours I have imposed as part of this sentence are the maximum that I am permitted to impose by law. They are one way of ensuring that Mr. Roberts repays his debt to society. [143] I have considered the request by Crown Counsel for a period of probation following completion of the conditional sentence order. However, I find that the circumstances of this case do not warrant the making of such an order. As already noted, the crime was non-violent in nature, Mr. Roberts is at low risk to re-offend, and I do not believe that he will pose a danger to the community upon completion of his sentence. [144] At the request of Crown Counsel, and with no objection from the defence, I am satisfied that the circumstances exist to warrant an order that Mr. Roberts provide a DNA sample as required pursuant to s. 487.051(3)(b) of the Criminal Code. "Shergill J."