



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Elliot, 2021 ONCA 909

DATE: 20211217

DOCKET: C67429

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brenda Elliot

Appellant

Ryan Heighton, for the appellant

Samuel Greene, for the respondent

Heard: December 16, 2021

On appeal from the conviction entered on May 23, 2019 by
    Justice Catrina D. Braid of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

I.

BACKGROUND IN BRIEF

[1]

The appellant was the Executive Director of a
    non-profit agency that supports adults with disabilities living in the
    community. The agency is funded through government grants, donations, and
    fundraising. The appellant exploited her position of trust at the agency by
    stealing thousands of donor and taxpayer dollars. She committed the offences by
    misusing her work credit card, forging a signature on a cheque, and forging an
    expense report for which she sought and received reimbursement. She was charged
    with fraud over $5,000 and two counts of uttering a forged document.

[2]

The appellant has worked for decades in the
    medical, long-term care, and retirement industries. Before these offences, she
    was convicted three times for fraud over $5,000 and three times for uttering
    forged documents. While on bail pending trial for these offences, she was
    caught forging a vulnerable sector check while attempting to get work in the
    same sector.

[3]

The appellant brought a pre-trial s. 11(b)
Charter

application, arguing that her right to a trial in a
    reasonable time had been breached.

[4]

The Information was sworn on October 8, 2015 and the appellant
    was arrested and charged on October 15, 2015. The matter proceeded to trial on May 13-23,
    2019. The application judge found the total delay was 43 months and 17 days.
    Applying the
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631
framework, she calculated defence delay
    as 18 months and 10 days. Once defence delay was deducted from the total delay,
    the net delay was 25 months and 25 days, which is below the
Jordan
presumptive ceiling. A
ccordingly, she dismissed the
    application.

[5]

After a jury trial, the appellant was convicted
    of all three offences and sentenced to three years in custody less credit for
    two days of pretrial custody.

II.

ISSUES ON APPEAL

[6]

On appeal, the appellant submits that: (1) the application
    judge erred in finding that her s. 11(b) rights were not breached; and (2) the
    sentence is demonstrably unfit.

III.

NO ERROR ON THE SECTION 11(b) APPLICATION

[7]

The appellant submits that the application judge erred in finding that
    two discrete periods were defence delay. The first period is from April 16 to
    May 10, 2018, when the defence was not available to proceed at the earliest
    preliminary hearing date offered due to prior trial commitments. The second
    period is from October 1 to December 3, 2018, when the defence was not available
    for the first set of pre-trial motions and trial dates the court offered.

[8]

The application judges reasons are exemplary.
    We see no error in her attribution of defence delay. However, even if she did
    err,
the net delay would be 28 months and 24 days, which is below the p
resumptive ceiling. The application judges unchallenged factual
    findings foreclose the appellant from discharging her onus of proving the
    below-ceiling delay was unreasonable.

IV.

NO BASIS TO INTERFERE WITH THE SENTENCE

[9]

The appellant makes two primary submissions in
    support of her contention that the sentence is demonstrably unfit.

[10]

First, she submits that the sentence offends the step principle. She
    points to the fact that prior to this matter, she was sentenced in 2012 for
    three counts of using a forged document, for which she received
a conditional
    sentence of two years less a day and twelve months probation. Therefore, she argues,
    the global sentence of three years imposed in this case is a significant and
    unwarranted deviation from the step principle.

[11]

We
    do not accept this submission. The sentencing judge considered the step
    principle and rejected the argument that a modest increase from the appellants
    prior conditional sentence (plus probation) was warranted. She noted that the
    appellant was previously sentenced to three different conditional sentences of
    increasing duration and that she still has an outstanding restitution order of
    $72,000 (from 2004) to which she has made no contributions.

[12]

While
    mindful of the step principle and the need to consider the appellants prior
    sentences, the sentencing judge found that the gravity of the offences, the
    appellants moral culpability, and the grave risk the appellant would re-offend
    warranted a penitentiary sentence.

[13]

Second, the appellant submits that the sentencing judge did not adequately
    consider parity and proportionality. This su
bmission rests, in
    part, on the dollar amount of the frauds she committed in these offences,
    compared to those she committed in the past. The total amount of the fraud in
    the present case was $9,788.64. However, the appellant repaid $1,297, so the
    total loss to the agency was $8,491.64. The appellant says that this is a de
-escalation
    from her prior convictions because the past frauds were for $72,000 and $23,000
    respectively.

[14]

We
    do not agree that the sentencing judge erred by failing to consider the parity
    principle and proportionality. As the sentencing judge noted, a broad range of
    sentences has been imposed in these types of cases and much turns on the
    individual circumstances of the offender and the case. She correctly identified
    that denunciation, specific deterrence, and general deterrence were of primary
    importance in this case.

[15]

The
    sentencing judge considered the appellants circumstances including her:
    pattern of defrauding employers and uttering forged documents; dubious prospects
    of rehabilitation, given her lack of insight into the impact of her actions on
    the agency, her unwillingness to accept responsibility for the offences, and
    her inability or unwillingness to take advantage of prior opportunities for
    rehabilitation; and, grave risk of re-offending.

[16]

The
    sentencing judge also considered the aggravating factors: the significant
    impact of the offences on the victims, a non-profit organization, its volunteer
    board, and those in the community who depend on the agency for services; the
    appellant took advantage of the high regard in which she was held because of
    her position with the agency; the offences were a breach of trust; the stolen
    funds were used for non-essential goods; the appellant continued with deceit
    when confronted; and, the appellants criminal record consists entirely of
    related convictions for fraud on employers.

[17]

The
    sentencing judge noted the mitigating factors: the appellants partial
    repayment of the stolen money and her acceptance of some elements of the
    offence.

[18]

There
    is no basis on which to interfere with the sentence imposed.

V.

DISPOSITION

[19]

Accordingly, the appeal against conviction is dismissed. Leave to
    appeal sentence is granted but the sentence appeal is dismissed.

E.E. Gillese J.A.

David Brown J.A.

S. Coroza J.A.


