





CITATION: R. v. Collins, 2011 ONCA 182



DATE: 20110307



DOCKET: C51258



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Rosenberg and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent (Respondent)



and



Susan Collins



Applicant  (Appellant)



Michael Dineen, for the applicant/appellant



Dena Bonnet, for the respondent



Heard: January 21, 2011



On appeal from the sentence imposed by Justice G. Patrick
          Smith of the Superior Court of Justice dated October 20, 2009.



Rosenberg J.A.:



[1]

The principal issue in this sentence appeal is the application of the
    principles set out in s. 718.2(e) of the
Criminal Code
, R.S.C. 1985 c.
    C-46

and
R. v. Gladue
, [1999] 1 S.C.R. 688 to an aboriginal
    offender involved in a serious fraud on the public.  The appellant pleaded
    guilty to one count of fraud over $5,000, for her part in a much larger fraud directed
    at the Ontario Works program delivered on the Fort William First Nation (FWFN).
     G.P. Smith J. imposed a sentence of 16 months incarceration followed by two
    years of probation, and made a restitution order for $96,000. The appellant submits
    that the sentencing judge misapplied the
Gladue
principles and erred in
    failing to impose a conditional sentence of imprisonment.  In the alternative,
    the appellant submits that the length of the prison sentence should be
    reduced.  For the following reasons, I would allow the appeal and reduce the
    sentence of imprisonment to ten months.

THE FACTS

The General Scheme

[2]

Social assistance benefits are delivered in Ontario under the authority
    of the
Ontario Works Act, 1997
, S.O. 1997, c. 25, Sched. A. The Ontario
    Works program provides temporary financial assistance to Ontario residents most
    in need while they satisfy obligations to become and stay employed.  First
    Nations territories in the province are exempt from the search-for-work
    requirements of the Act.  The FWFN is a federal reserve adjacent to the City of
    Thunder Bay. The Ontario Works program is administered on the FWFN through a
    local delivery agent office using specialized software systems that maintain a
    client database.   The FWFN Ontario Works program computer system is separate
    from the networked computer systems utilized by the FWFN Band administration
    for other programs, and is independent from the networked system of the
    Province of Ontario. For this reason, the Province cannot electronically
    monitor the FWFN social assistance database.

[3]

Between 2000 and 2002, the FWFN Ontario Works program administrator was
    Shirley Allan.  Her role was to validate client records and applications, and authorize
    benefit payments to clients who met eligibility criteria.  Upon Ms. Allans
    authorization, the computer software would print out benefits cheques in the
    name of clients, in amounts determined by the software based on family size and
    declared needs.  During the same time, Rochelle Johnson was the Ontario Works
    case worker.  She is also the appellants sister.  Like Ms. Allan, Ms. Johnson received,
    validated and authorized client records and applications, and would approve or
    disapprove benefit payments.  Both were commissioners of oaths, and both swore
    oaths of confidentiality as part of their employment.

[4]

The fraudulent scheme was committed through the creation and
    authorization of false client applications.  False client files were created by
    the submission of fraudulent materials misrepresenting the residency and/or
    financial status of individuals. Some of the files had forged signatures or were
    not signed at all. Some formerly legitimate and de-activated files were
    fraudulently reactivated.  In all these cases, Ms. Allan and Ms. Johnson
    approved these applications and issued cheques. People complicit in the scheme
    would either cash the cheques for themselves or deliver them to the complicit
    payee and divide the proceeds upon redemption.  During the relevant time, only Ms. Allan
    and Ms. Johnson had access to the computer to generate and approve applications
    and cheques until Annabelle Bell was hired as a caseworker in the summer of
    2002.  Ms. Bell was not a suspect in the fraud.

[5]

The investigation into the fraudulent activity commenced on January 13,
    2003, when Walter Bannon, a participant in the fraud, initiated a complaint and
    turned over documentary evidence to the police.  Mr. Bannon named Shirley Allan
    as a participant, and encouraged Ms. Allan to contact the police herself, which
    she did on January 14, 2003.  Ms. Allan described in detail her own involvement
    in the scheme, as well as the participation of the other accused, including the
    appellant.

[6]

Several participants in the fraud were sentenced prior to the appellant.
    Shirley Allan, a central figure in the fraud, whose participation amounted to a
    breach of trust, but who co-operated in the police investigation, received a 26-month
    sentence.  Rochelle Johnson received a total sentence of two years.  Walter
    Bannon, whose involvement was similar to, but shorter than, the appellants,
    received a conditional sentence of two years less one day, in recognition of
    his cooperation. He had a significant criminal record. In addition, restitution
    orders were made against Mr. Bannon and Ms. Allan.  Giselle Thibert, who cashed
    $65,000.00 in cheques, was sentenced to nine months imprisonment; she had a
    related criminal record but it was shorter than Mr. Bannons.  Maurice Solomon,
    whose participation was limited to receipt of $3,000, received a six month
    conditional sentence order and a restitution order; he also had a criminal
    record.

[7]

The total estimated financial loss due to the fraudulent activity while
    the scheme was operating is $1.285 million.  The scheme led to the FWFN bank
    account often being in an overdraft position, which led to interest charges
    totalling approximately $17,000.  Some innocent people, whose identities were
    used in the scheme, suffered financially because, when they required social
    assistance, it was refused as they were already shown to be receiving assistance.

Appellants Participation in the Scheme

[8]

The appellant was one of the earliest participants in the scheme.  She
    was approached by family members employed by the Band and was asked to
    participate in this scheme. Her role was to provide identities for which false
    claims were created, and to cash the cheques issued on those files.  The
    appellant collected and cashed benefit cheques in several formats: cheques written
    in the appellants name; in her middle name; in the name of other individuals; and
    in her name as a trustee for beneficiaries.  All of these cheques were
    fraudulent. Some of the named individuals on the cheques were complicit in the
    fraud, while others were unaware that cheques had been issued in their name, or
    that their name was used as a beneficiary in the appellants trusteeship.  It
    was also alleged that the appellant stole at least three blank cheques which
    she made out in amounts totalling $15,500 payable to herself.

[9]

Handwriting analysis indicated that with two exceptions, one person had
    signed all the payee signatures and all the endorsements signing those cheques
    over to S. Collins or J. Collins.  The appellant used five separate banking
    accounts to process 67 cheques.  The total value of these 67 cheques was
    $96,298.51.

[10]

There was some dispute as to how much money the appellant actually kept
    and how much she kicked back to other participants in the scheme.  The synopsis
    of facts that was filed at the sentence hearing contains this statement:

The amount attributable to Susan Collins participation
    in this scheme is approximately $68,500.  This calculation is based on her
    collection of benefits as a fraudulent trustee, and as the third party to whom
    cheques were fraudulently signed over.

[11]

In his submissions on sentence, defence counsel was vague as to how much
    the appellant admitted receiving:

My client believes that the sum that she profited
    from that is substantially less [than $96,000] because part of the scheme was,
    We give you cheques in your name, you go cash it, we get the lions share of
    it, you get to get some of your gambling money out of it.  But obviously she
    didnt keep records in that regard.

[12]

Crown counsel in her sentencing submissions appeared to accept this
    submission, although she put it in an aggravating context:

And she was participating, assisting, actively
    engaged and the suggestion we hear today is that she was even paying
    kick-backs, that they were taking a chunk of the fraudulent monies that she was
    obtaining.  So shes very clearly actively participating in the breach of
    trust.

[13]

The money the appellant did receive went to feed her gambling addiction,
    either lost at the local casino or used to replace money from the family bank
    account that she lost gambling, in order to conceal her gambling from her
    husband.

[14]

The appellants husband believes that his wife was intentionally
    targeted and enticed into illegal activities because of her gambling addiction.
    A letter from the appellants pastor also touches on the same theme. The pastor,
    who has known the appellant and her family since 1972, indicated that
    participation in a welfare fraud was out of character for her, and surmised
    that she was influenced by family members:

It is unfortunate she got caught in the welfare
    fraud scheme with a lot of family and friends  family loyalty is a strong
    virtue on most reserves, which at times can open one to become participant with
    ones circles.

The Appellants Background

[15]

The appellant was 51 years of age at the time of sentencing, and had no
    criminal record. She was born in Thunder Bay, the fourth of ten children. Her
    father was born on a First Nation reserve in the Georgian Bay area, and had
    attended a residential school. He never spoke with his children about his
    experiences there. As a young man, he relinquished his treaty rights to become
    a Canadian citizen. The appellants mother was born and raised on the FWFN reserve,
    in a home riddled with substance abuse and violence. She married the appellants
    father at age seventeen and lost her aboriginal status as a result of her
    husbands earlier enfranchisement. After they married, the appellants parents
    lived as outcasts on the periphery of the FWFN community since they no longer
    had the right to live in the reserve community. None of their children held
    Indian status, and the family was discriminated against because they were not
    considered to be part of the aboriginal community. The children routinely
    witnessed violence between their parents.

[16]

The appellant was seven when her father left the home, leaving her
    mother to care for ten children, without eligibility for any social assistance
    from her own community. Eventually, they were able to move into a home on the
    reserve, but the children were shunned and ostracized by community members
    because of their lack of status.  The appellants mother believes that many of
    the problems her children faced in their adult lives can be traced to the
    racism they experienced from their own community during their childhood years.

[17]

Historically, the FWFN was a prosperous community due to the economic
    gains of commercial fishing.  Many of the children in the community attended a
    school in Squaw Bay, which was administered by the Roman Catholic Church. The
    majority of the community members abandoned their cultural practices when they
    adopted the Catholic faith, which continues to have a strong following on the
    reserve. The prosperity and wellness of the FWFN began to decline for several
    reasons, not least of which was the dislocation of community members due to
    attendance at the residential schools.  When the children returned as young
    adults they lacked connection to their community and heritage.  Substance
    abuse, family violence and cases of sexual abuse increased.  Changes in the
    economy resulted in unemployment that encompasses the majority of its members.  Most
    community members live below the poverty line.

[18]

The appellant married her husband in 1980, and gained aboriginal status
    rights at that time.  The appellants mother, along with her ten children,
    regained native status rights in 1985, when the Canadian Government passed Bill
    C-31.

[19]

The appellant had a child from a previous relationship, and had three
    more children with her husband.  Their youngest daughter suffered a stroke two
    weeks after her birth, leaving her with permanent brain damage and paralysis.
    The appellant has been her fulltime caregiver for the last eighteen years. The
    appellants husband was the Chief of the FWFN at the time of the offence. He is
    the sole provider in the household. Their marriage has suffered through
    hardships over the years.  While neither have a history of substance abuse, their
    children have not been as fortunate. Their oldest son is currently serving a
    federal term of incarceration. The appellant suffers from a gambling addiction,
    which her husband has financed throughout the years. Her gambling has led to
    stress in their marriage.

[20]

The appellant was willing to make restitution and defence counsel indicated
    that he had $10,000 in his trust account that was immediately available for
    that purpose.

[21]

Prior to sentencing, the appellant suffered from three brain aneurysms,
    one of which required surgery in 2005. Her memory began to deteriorate, and as
    a result, she was referred for a neuropsychological assessment in December
    2007. The report from the assessment noted that the appellants IQ falls in the
    extremely low range compared to other people her age. Her working memory and
    verbal comprehension were low average in comparison to people in her
    education group (grade 8). The report also noted the appellants processing
    speed was poor. While her condition has stabilized, she suffers from a decline
    in memory, language and processing speed that is most likely connected to her
    aneurysms.

Other Community Information

[22]

The pre-sentence report indicates that the large fraudulent scheme has
    divided and severely damaged the relationships of many families on the First
    Nation.  This is evident from letters filed at the sentence hearing.  Letters
    addressed to the Crown Attorney from several Elders of the community urge that
    the perpetrators of the fraud be prosecuted to the full extent of the law and
    not given community service.  The letters particularly target the appellants
    husband, who was Chief during the time of the fraud and who they claim must
    have known of the fraud perpetrated by the appellant and several of her
    relatives.  (The Crown made no allegation that the appellants husband was
    involved in the fraud.)  Letters to the appellants trial counsel that were
    filed at the sentence hearing are quite different.  They describe the appellant
    as a loving mother and devoted wife and urge that the family be kept together
    and that the appellant be required to reimburse the community through
    restitution and community service rather than imprisonment.

THE TRIAL JUDGES REASONS FOR SENTENCE

[23]

The trial judge held that in major fraud cases denunciation and
    deterrence are the paramount considerations and that mitigating factors and
    rehabilitation of the accused become secondary.  The trial judge discussed at
    length the impact of s. 718.2(e),
Gladue
and this courts decision in
R.
    v. Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.).  The trial judge referred
    to his own reasons for sentence in another case in these terms:

A sentencing judge must perform a three-way
    balancing act  that is, the judge must balance the competing sentencing
    principles, the interests of the offender, and the interests of the community
    before reaching a conclusion. How this differs from the balancing that is
    performed in the sentencing of non-Aboriginal offenders is that the interests
    of the offender will be different. There will be a focus on the past
    circumstances of the offender that may have brought him or her before the
    court, such as addiction, abuse, poverty, just to name a few. There should also
    be a consideration of the communal values of the Aboriginal heritage, and an
    analysis of whether the offender would have a better opportunity of
    rehabilitation if he is sentenced within his community where he can receive
    spiritual guidance from band elders, or other rehabilitative techniques that
    are culturally specific.

[24]

The trial judge considered the principles to be applied where a
    conditional sentence of imprisonment was sought and referred, in particular, to
R. v. Wells
, [2000] 1 S.C.R. 207.  As applied to fraud cases, the trial
    judge held that factors to be considered are the amount of money involved, the
    time period over which the fraud took place, the likelihood of restitution,
    display of remorse and the role played by the offender in the fraud.  The trial
    judge noted the size of the entire fraud and accepted that the appellants
    personal participation was in the sum of $96,289.51, of which she retained approximately
    $65,000 for her own benefit.  He considered the appellant to have been an
    active participant in the fraud and that her acts in finding and supplying
    false identities were crucial to the opening of false files.  He found that the
    length of time of the fraud and the significant degree of planning and
    participation were aggravating factors.  The trial judge found that the
    appellants motivation was simply greed, fuelled in part by her admitted
    gambling addiction.  The appellant did not offer any co-operation in
    uncovering the fraud and her involvement ended only when she was apprehended. 
    He thought it unlikely that the appellant would be able to make full
    restitution.

[25]

The mitigating factors identified were the appellants guilty plea, age,
    lack of prior record, her health issues and her responsibility for caring for
    her disabled daughter.  The trial judge, however, minimized these latter two
    factors.  He noted that the medical evidence did not show any current concerns
    for the appellants own health.  As far as the appellants daughter, the trial
    judge found that there was no evidence that she could not function without the
    appellants assistance or that incarcerating the appellant would place her
    daughter in jeopardy.  He said this:

If [the daughter] requires so much of her mothers
    care that jail would jeopardize her care, one cannot but wonder why the accused
    spent so many hours gambling away the proceeds of her share of the fraud in the
    local casinos.

[26]

The trial judge then turned to application of what he termed the
    so-called Gladue factors that have contributed to bringing Susan Collins
    before the Court.  The trial judge reviewed the information concerning
    systemic factors on the FWFN generally and then said as follows:

Notwithstanding the evidence that the poverty and
    suffering on the Fort William First Nation Reserve is considerable and that the
    residential school experience is in part responsible,
I find that the
    evidence does not support the argument that systemic factors are responsible
    for bringing the accused before the court
. In any event, this is the type
    of case referred to in
Wells
where the seriousness of the crime and need
    for denunciation take precedence over any other considerations.

On this point, I adopt the comments of Richards
    J.A. in
R. v. Gopher
, [2006] S.J. No. 12 (C.A.), who said, at para. 39,
    that:

No community,
    aboriginal or non-aboriginal, can succeed and move forward unless its members
    have faith that public affairs are conducted honestly and in accordance with
    the law. The significance and nature of the offences at issue in this case and
    the overwhelming need to clearly denounce them and to deter similar offences,
    tend to leave little room to give effect to the unique circumstances of
    aboriginal offenders (emphasis added).

It is clear that Ms. Collins did not have an
    easy upbringing however the responsibility for what she has done must be hers.
    She made a choice to become involved in the fraudulent scheme and she actively
    became a key player
. She had numerous opportunities to resile from the
    scheme but chose to stay involved. Her actions have hurt and divided her
    community. They have also caused damage to those whose identities were stolen
    as well as some who were not able to receive benefits because their names have
    been used in the fraud. [Emphasis added.]

[27]

The trial judge concluded that a conditional sentence would not reflect
    the seriousness of the offence, the moral blameworthiness of the appellant, the
    need for general deterrence, sentences imposed in similar cases and the degree
    of the appellants participation.  The trial judge also noted that confidence
    of Band members and the public confidence in the Band administration and
    Aboriginal leaders to manage their affairs and govern themselves had been
    severely damaged by the fraudulent scheme.  He concluded with this comment:

Each individual must be accountable for their own
    actions.  Blaming others, your upbringing or minimizing ones participation
    cannot, generally speaking for serious crimes such as large scale fraud,
    absolve a person from the consequences of their actions.

THE FRESH EVIDENCE

[28]

With the consent of the Crown, the appellant filed fresh evidence
    consisting of the following:

A certificate of completion of a brief (4 day)
    gambling information and treatment group;

A Band Council Resolution supporting consideration
    of restorative justice alternate conditional sentence rather than
    incarceration;

A letter from an Elder indicating that the
    appellant realized that she had a gambling addiction and is willing to continue
    to seek help for that addiction;

Letters confirming the appellants volunteer work,
    including work at an Addictions Awareness Conference in 2010 and at the FWFN
    Annual Pow-wow.

ANALYSIS

[29]

Counsel for the appellant submits that the trial judge erred in two
    respects.  He erred in his application of s. 718.2(e) as interpreted in
Gladue
and
Wells
from the Supreme Court of Canada and
Kakekagamick
from
    this court.  Second, he erred in imposing a sentence that was excessive in the
    circumstances.

[30]

I agree with the appellant that the trial judge erred in his application
    of
Gladue
,
Wells
and
Kakekagamick.
The error is presented
    most starkly in this passage from the trial judges reasons:

Notwithstanding the evidence that the poverty and
    suffering on the Fort William First Nation Reserve is considerable and that the
    residential school experience is in part responsible,
I find that the
    evidence does not support the argument that systemic factors are responsible
    for bringing the accused before this court.
In any event, this is the type
    of case referred to in
Wells
where the seriousness of the crime and the
    need for denunciation take precedence over any other considerations.

[31]

This theme was picked up again at the conclusion of the trial judges
    reasons:

Each individual must be accountable for their own
    actions.  Blaming others, your upbringing or minimizing ones participation
    cannot, generally speaking for serious crimes such as large scale fraud,
    absolve a person from the consequences of their actions.

[32]

There is nothing in the governing authorities that places the burden of
    persuasion on an Aboriginal accused to establish a causal link between the
    systemic and background factors and commission of the offence.  Further, s.
    718.2(e) and the
Gladue
approach to sentencing Aboriginal offenders is
    not about shifting blame or failing to take responsibility; it is recognition
    of the devastating impact that Canadas treatment of its Aboriginal population
    has wreaked on the members of that society.

[33]

As expressed in
Gladue
,
Wells
and
Kakekagamick
, s.
    718.2(e) requires the sentencing judge to give attention to the unique
    background and systemic factors which may have played a part in bringing the
    particular offender before the courts:
Gladue
at para. 69.  This is a
    much more modest requirement than the causal link suggested by the trial
    judge.  As counsel for the appellant submitted in this case, it would be almost
    impossible for most Aboriginal offenders to establish a direct causal link
    between systemic factors and any particular offence.  Commission of offences
    are affected by a host of circumstances, the systemic factors of the particular
    Aboriginal community may, as the name suggests, be nothing more than the
    background or the setting for commission of the offence.  However, the
Gladue
principles require those factors to be taken into account.  In cases where
    those factors are shown to have played a significant role, it may be that
    imprisonment will utterly fail to vindicate the objectives of deterrence or
    denunciation:
Gladue
at para. 69.  In other cases, where the impact is
    not as dramatic, those systemic and background factors must nevertheless be
    taken into account in shaping the appropriate penal response.

[34]

It seems to me that the systemic and background factors affecting the
    FWFN generally, and the appellant in particular, must have played a part in
    bringing her before the courts.  Her earliest years were shaped by abject
    poverty.  She grew up in an atmosphere of dislocation, discrimination, and
    alienation as a result of government policies that subjected her father to the
    ravages of residential schooling and deprived her mother, father and siblings
    of their rights as Aboriginals .  Her mothers upbringing was riddled with
    substance abuse and violence.  The appellant herself suffers from a severe
    gambling addiction.

[35]

Even if the systemic and background factors did not play a part in
    bringing the appellant before the courts, the
Gladue
principles still
    require recognition of the impact of Canadas treatment of its Aboriginal
    population in shaping the appropriate sentence.  The court is required to
    consider how this particular offender has been affected by those systemic
    factors.  As the court said in
Gladue
at para. 80:

As with all sentencing decisions, the sentencing of
    aboriginal offenders must proceed on an individual (or a case-by-case) basis:
    For this offence, committed by this offender, harming this victim, in this
    community, what is the appropriate sanction under the Criminal Code? What
    understanding of criminal sanctions is held by the community? What is the
    nature of the relationship between the offender and his or her community? What
    combination of systemic or background factors contributed to this particular offender
    coming before the courts for this particular offence?
How has the offender
    who is being sentenced been affected by, for example, substance abuse in the
    community, or poverty, or overt racism, or family or community breakdown?
Would imprisonment effectively serve to deter or denounce crime in a sense that
    would be significant to the offender and community, or are crime prevention and
    other goals better achieved through healing? What sentencing options present
    themselves in these circumstances?  [Emphasis added.]

[36]

And, as the court said at para. 81: Sentencing must proceed with
    sensitivity to and understanding of the difficulties aboriginal people have
    faced with both the criminal justice system and society at large.  And again,
    at para. 68:

It is true that systemic and background factors
    explain in part the incidence of crime and recidivism for non-aboriginal
    offenders as well. However, it must be recognized that the circumstances of
    aboriginal offenders differ from those of the majority because many aboriginal
    people are victims of systemic and direct discrimination, many suffer the
    legacy of dislocation, and many are substantially affected by poor social and
    economic conditions. Moreover,
as has been emphasized repeatedly in studies
    and commission reports, aboriginal offenders are, as a result of these unique
    systemic and background factors, more adversely affected by incarceration and
    less likely to be "rehabilitated" thereby, because the internment
    milieu is often culturally inappropriate and regrettably discrimination towards
    them is so often rampant in penal institutions
.  [Emphasis added.]

[37]

I conclude this discussion with the point made by LaForme J.A. at paras.
    34 and 35 of
Kakekagamick
:

Nor is being an Aboriginal offender, as I have
    heard it referred to, a get out of jail free card.

Rather, s. 718.2(e) was enacted as a remedial
    provision, in recognition of the fact that Aboriginal people are seriously
    over-represented in Canadas prison population and in recognition of the
    reasons for why this over-representation occurs.

[38]

Given the trial judges error in principle, it falls to this court to
    impose a fit sentence.  I acknowledge that this is a particularly difficult
    sentencing decision.  I accept the trial judges finding that the scheme, of
    which the appellant was a participant, had a serious impact on the First Nation
    and undermined public confidence in the First Nations ability to administer
    the social assistance system and governance generally.  The divisions in the
    community created by this fraudulent scheme are testified to by the letters
    filed at trial and on this appeal.

[39]

But there also must be a measure of proportionality.  The appellant was
    one of many involved; she did not bear entire, even primary responsibility, for
    administering either the social assistance system or the fraudulent scheme. 
    The trial judge explicitly recognized this fact in both his reasons and in
    imposing a sentence of 16 months, which was less than that imposed on Ms. Johnson
    (two years) and Ms. Allan (26 months).  But that, in my view, is the central
    problem with the sentence imposed.  It was shaped by the trial judges
    assessment of the appellants level of participation in the broader scheme and
    without factoring in the
Gladue
principles.  When those factors are
    taken into account, a different sentence was required.  A sentence which
    admittedly must, as well, take into account the range of sentences imposed on
    the other perpetrators such as Giselle Thibert.

[40]

I have reluctantly concluded that this is not an appropriate case for a
    conditional sentence of imprisonment.  The offence was too serious and the need
    for general deterrence and denunciation overwhelming.  However, the
Gladue
principles mandated consideration of the least intrusive punishment consistent
    with the appropriate objectives.  As the court said in
Gladue
at para.
    93:  If there is no alternative to incarceration the length of the term must
    be carefully considered.

[41]

There are other factors at play as well, including: the long period of
    release on bail, the lack of criminal record, and the appellants service to
    the community.  I would also give more weight than the trial judge to the
    impact on the appellant of being separated from her disabled daughter.  It is
    one thing to be away from that child for a few hours a week spent gambling than
    to be completely removed from her for a period of months.  It is not just the
    impact on the child; the wrenching experience imprisonment would represent for

a mother who has devoted the past 18 years of her own life caring for her
    disabled child must be considered
.

[42]

In my view, the appropriate disposition would be a sentence composed of
    a relatively lenient period of incarceration to be followed by a lengthy period
    of probation.

DISPOSITION

[43]

Accordingly, I would allow the appeal from sentence and reduce the
    sentence of imprisonment to ten months to be followed by two years probation on
    the terms imposed by the trial judge.  I would not interfere with the
    restitution order.

Signed:           M. Rosenberg J.A.

I agree D. OConnor
    A.C.J.O.

I agree Robert P.
    Armstrong J.A.

RELEASED:  DOC MARCH 7, 2011


