CITATION: R. v. Chartier, 2015 MBPC 50 Date: 2015 10 14

IN THE PROVINCIAL COURT OF MANITOBA

BETWEEN: Her Majesty the Queen ) Terry McComb ) for the Crown ) and ) ) ) Shelly Chartier ) John Skinner ) for the Accused ) ) ) ) Reasons for Decision delivered: ) October 14, 2015 ROLSTON, P.J.

INTRODUCTION

[1] Shelly Chartier is a reclusive aboriginal woman who resides in the small isolated community of Chemawawin Cree Nation and is before the court to be sentenced for extortion, uttering threats to cause bodily harm, fraud under $5,000.00 and four counts of personation between early 2011 and the spring of 2013. These offences were perpetrated over the internet and impacted the lives of people all over North America.

Restriction on publication: By court order under section 486.5(1) of the Criminal Code of Canada, any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way.

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[2] By posing as various real people that she met online, Shelly Chartier hid from the realities of her life in Chemawawin but also hid behind her keyboard while she befriended and defrauded her victims that include an NBA star, a television actress, and a vulnerable Texas citizen. Each victim was impacted in a significant but individually unique and profound way.

[3] The investigation of these offences spanned over three years and involved two countries, approximately 42 police officers and the execution of 39 search warrants.

[4] The Crown is seeking a jail sentence of 16 to 18 months followed by 2 years of supervised probation, and has suggested that the paramount sentencing factors at play are deterrence and denunciation. The defence position is that the offender is a candidate for a conditional sentence order on the basis that although the circumstances of the offence warrant a jail sentence, the offender’s background circumstances combined with the mitigating aspects of this case call out for a sentence that will allow for the offender to serve her sentence in her community.

[5] The court is challenged in this case to balance and weigh the principles of sentencing in the context of a case that involves a series of unique offences committed via the internet by an offender who presents herself as somewhat outwardly vulnerable, but highly predatory within the cyber universe.

THE VICTIMS

[6] Several people were victimized by the offender, but her actions also impacted a larger group. In order to understand the scope of the offences, it is necessary to understand the main people who were victimized.

T.T.

[7] T.T. is a professional video game player. In May, 2011 the offender created a Facebook page and social media profiles impersonating T.T. (“Fake T.T.”).

C.A.

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[8] C.A., a basketball player in the National Basketball Association (NBA) at the time of the offence, did not always have money and fame that comes with a professional basketball career. As an NBA star, he is well known for his tattoos and flamboyant style, but also for giving back to the community.

P.D.

[9] P.D. is described as an attractive 17 year old female from California who appeared to be much older than she was. P.D. was active on the internet and would try to connect with various celebrities, representing herself as being over 18 years old.

J.H.

[10] The offender met J.H. in 2008 through one of several chat rooms that she frequented. J.H. resides in Texas and has limited financial means. She does not have a long distance plan, or internet in her apartment but still managed to communicate on the internet daily. She was described by law enforcement as emotionally vulnerable.

N.P.

[11] N.P. is an actress on a popular television series. Prior to being victimized by the offender, she had met C.A. and continued friendly communications through the internet.

FACTS

[12] The offender began using the internet when she was 18 years old. At the time, she had limited education, and had not been attending school since she was 15 years old. Over time, she educated herself on use of the internet and began to cultivate various friendships while online. She quickly became adept at navigating the internet, after facing some online teasing for having little usage skill early on.

[13] As far back as 2003, the offender learned that she could adopt a false persona online when she began impersonating rapper Eminem. It is apparent that the offender often visited a number of chat rooms, and became deeply integrated

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into a society of people who she could access without leaving her home. This lead to a lifestyle that the Crown aptly described as a “fantasy type existence” where the offender became skilled at manipulating and deceiving others who also chose to spend their time online.

[14] In early 2011, the offender began to use the skills she had developed online to exploit the relationships that she had developed.

[15] Around this same time, P.D. had attempted to contact C.A. expressing a romantic interest in him. This was not reciprocated but P.D. persisted by befriending a Facebook page in C.A.’s name. In reality, the offender had created the Facebook page, and began to impersonate C.A. (“Fake C.A.”) in conversations with P.D. Fake T.T. contacted P.D. and by holding himself out as C.A.’s friend, ultimately connected P.D. with Fake C.A. Over time, trust was built between Fake C.A. and P.D. which lead to P.D. sending nude photographs and videos of herself to Fake C.A. Fake T.T. became a trusted friend to both P.D. and Fake C.A.

[16] In October, 2011 the offender, having gained the trust of P.D. as Fake C.A. and now in possession of the photographs and information about her, approached C.A. while impersonating P.D. (“Fake P.D.”). Unbeknownst to C.A. and P.D., Fake P.D. communicated with C.A. and Fake C.A. communicated with P.D. The offender, as Fake P.D., sent the nude photographs of P.D. to C.A. in the course of these communications. Ultimately, P.D. and C.A. were convinced that they should each meet the other. C.A. agreed to fly P.D. from California to Colorado, which was arranged by the offender for December 7, 2011. C.A. and P.D. spent the weekend together and had consensual sexual relations. Throughout the weekend, P.D. confided in Fake T.T. which allowed the offender to have intimate details of what had occurred. In the meantime, neither P.D. nor C.A. discovered that the offender had initiated the ongoing relationship between them.

[17] Subsequently, Fake C.A., who continued to have ongoing discussions with other females online, accidently sent P.D. a message intended for another female. This event triggered an argument that involved P.D., Fake T.T., and Fake C.A. The offender sent the nude photographs of P.D. from Fake C.A. to Fake T.T. Fake T.T. then demonstrate to P.D. that he had the photographs, thereby making it

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appear to P.D. as if C.A. was disseminating her compromising photographs on the internet.

[18] On December 16, 2011, the offender as Fake C.A. threatened P.D. by saying, “I got your address you whore try me. I’ll fuck you up. Keep threatening me I’ll get your ass raped and dumped on the side of the road”. P.D. believed that C.A. had her address given the previous flight that had been arranged by Fake C.A., and therefore believed the threats. In the meantime, Fake T.T. threatened to disseminate the nude photos of P.D. online. The offender briefly posted the photos along with P.D.’s name and address to a program called “Cpixel” in order to demonstrated to P.D. that the threat was serious. The photos were removed after P.D. viewed them.

[19] P.D. told her mother. The police in California began to investigate C.A. and T.T.

[20] In the meantime, the offender posed as P.D.’s mother, and began to extort C.A., by telling him that she knew P.D. had been flown to Colorado and advising C.A. that P.D. was under 18 years old. The offender threatened to expose C.A. publically unless certain items were purchased from a wish list set up in P.D.’s name using Amazon.com on the premise that P.D. would be going to college and needed items such as bedding for her dorm room. The items on the wish list were also conducive to the offender’s reclusive lifestyle. C.A., through his counsel, denied that he was aware of P.D.’s age, but negotiated a settlement of $3,000.00 in cash with the offender as an alternative to the wish list items, in order to avoid the negative publicity of having the incident made public. The offender then had J.H. to divert the money to her own account in Grand Rapids, Manitoba.

[21] In May 2012 Colorado law enforcement was continuing the investigation against C.A. based upon the complaint lodged by P.D., and the Internet Crimes Against Children Task Force executed a very public search warrant at C.A.’s home. As a result of the negative publicity that followed, C.A. was released by his professional NBA team; dropped by the charities he had been doing work for; lost several sponsorships; and was, in his words subjected to humiliation “in front of millions of people on a public stage...I wore this label.”

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[22] In October, 2012 C.A.’s counsel advised law enforcement that C.A. was being extorted by P.D.’s mother, which triggered a further investigation by Colorado police. Ultimately, the $3,000.00 payment was traced back to a PayPal account generated by the offender’s computer address in Easterville, Manitoba. During the course of this investigation, police uncovered two additional victims, N.P. and J.H.

[23] The offender, as Fake C.A., had contacted N.P. with a fictitious story regarding a young woman in northern Manitoba who had “lost everything” in a fire. Fake C.A. appealed to N.P.’s charitable nature and convinced N.P. to donate clothing worth approximately $2,000.00 to $3,000.00 to the offender’s address in Easterville, Manitoba and send a bottle of wine to J.H. in Texas.

[24] The police also uncovered that the offender, as Fake T.T. instigated a romantic relationship with J.H. that lasted approximately eight years, the last four of which were on again off again in nature. While they never met in person, Fake T.T. was able to develop a controlling type relationship with J.H. They communicated several times daily. The offender obtained recordings of a male voice and left messages for J.H. while she was not at home posing as T.T. The offender also obtained nude photographs purporting to be T.T. and sent them toJ.H. Further, fake personas were created for T.T.’s mother, ex-wife and brother that were utilized to convince J.H. of Fake T.T.’s existence.

[25] Once Fake T.T. had gained the trust of J.H., the offender began to manipulate J.H. by having her send money, iTunes cards, Xbox credits and books. Fake T.T. became increasingly abusive and controlling. The offender portrayed Fake T.T. as suicidal at times and also convinced J.H. that he had cheated on her. Despite this, in her statement to the police, J.H. advised that she sometimes would not eat so as to send money to the offender. The offender also used J.H. to unknowingly accept the extorted money from C.A. Once the news that C.A.’s house had been searched became public, Fake T.T. attempted to have J.H. take responsibility for that so as to not leave Fake T.T.’s daughter alone given that her father would be in jail. Notwithstanding all of these episodes of emotional abuse, when the offender was exposed, J.H. was devastated by the revelation that the love of her life, with whom she had carried on an eight year relationship was a sham.

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[26] The offender was arrested regarding offences linked to C.A. and P.D. when a search warrant was executed at her home in Chemawawin on January 15, 2013. She was released on an undertaking with a condition to not go on the internet. All devices that could access the internet were seized. Despite this fact, the offender obtained a new cell phone with the assistance of a family member. It was during this time, that the offender had Fake T.T. communicate with J.H. to attempt to have J.H. “take the rap” for Fake T.T..

[27] The offender was arrested a second time after forensic analysis on her computer had been completed. Once again she was placed on an undertaking to not access the internet. She subsequently contacted an individual via Facebook and instructed that person to delete the Fake T.T. Facebook account.

BACKGROUND OF THE OFFENDER

[28] The offender, an aboriginal woman from Chemawawin Cree Nation was a 27 year old when the offences began. She has never met her father. Her mother, Delia has been bedridden with rheumatoid arthritis for most of the offender’s life. The offender’s grandparents died early in her life in unfortunate circumstances. The offender was mostly raised by her aunt, Kathy George, who also was the primary caregiver for Delia. Tragically, on one morning in 2012 the offender awoke to discover her aunt Kathy had passed away in her sleep, leaving the offender to care for her mother on her own.

[29] The offender has lived a somewhat reclusive existence. No medical or forensic reports were filed that addressed the offender’s mental health. According to Delia, the offender has “no mental health issues”. It is clear, however that the offender does not live a lifestyle that supports this conclusion. The presentence report does reveal several unfortunate aspects of the offender’s upbringing:

• She only has a grade 6 education; • She was taken out of school due to bullying after being stabbed in the

back with a pencil; • She has not been exposed to her cultural traditions; • She chose to isolate herself and preferred to be around grown-ups as a

child;

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• The only social event she has attended in her life was her uncle’s wedding when she was 8 years old;

• While there was no violence in her home, she witnessed drunk neighbours and people in the streets who would yell at each other which would cause her anxiety;

• The offender has never been employed and often does not leave the house;

• She has only been outside of Easterville and surrounding area in the past 10 years when held in custody after her arrest on the present charges and when she went to The Pas to get her marriage licence;

• She gets “anxiety and panic attacks”, but has not seen a doctor about this; and,

• She was sad and lonely prior to her arrest.

[30] The offender met her husband, an American citizen, for the first time while playing video games online shortly before she was arrested. He moved to Easterville on November 22, 2014, and married the offender on his arrival but has since been deported to the United States. The offender plans to have a family with her husband and move to the United States with him. This plan seems somewhat tenuous given that her husband has limited resources and is living in a one room apartment in New York with his father and sister.

THE POSITIONS OF THE PARTIES

[31] The Crown argues that the offender’s actions were motivated by a desire for financial gain; were planned, deliberate and complex in nature; and caused a significant degree of victim impact. Therefore the paramount sentencing considerations should be deterrence and denunciation. The Crown also acknowledges that the offender comes from a very difficult background that must factor into the sentencing process. Therefore, the Crown suggests that the offender should be sentenced to a period of jail for a period of between 16 to 18 months, follow by a 2 year order of supervised probation.

[32] Defence suggests that in light of the “blinding poverty” that is evident in the offender’s background, her motivation for financial gain must be put into context. The offender agrees that the appropriate sentence includes a jail sentence, but

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argues that she should be allowed to serve the jail sentence in the community by way of a conditional sentence order. While the offender has been reclusive in the last number of years, her world has been changed by the addition of her husband, and therefore house arrest will be meaningful to her as a punishment.

PRINCIPLES OF SENTENCING

[33] The present case is unique in that there are very few precedent cases on which the Court can rely to create a range of sentences to compare and contrast with that of this offender. Counsel did provide the court with R. v. P.(D.K.) [1991] B.C.J. No. 2998, as precedent for a “loss of reputation” case. While this case was of some assistance, the magnitude of the P.(D.K.) case pales in comparison to the present circumstances in a significant way in terms of the personal and financial toll taken from the victims. Additionally, the offender’s personal circumstances were not analogous to the offender in the P.(D.K.) case. Lastly, P.(D.K.) predated the availability of a conditional sentence order. It is necessary, in light of the absence of comparable case law to examine basic sentencing principles and apply those principles to the case at bar to each series of offences.

SENTENCING IN CASES WHERE THERE IS MULTIPLE COUNTS

[34] The offender has plead guilty to several charges that arise from a series of interactions via the internet against multiple victims. The court must therefore determine whether the sentences imposed should be concurrent or consecutive to one another. It is incumbent upon the court to follow the direction of the Court of Appeal most recently affirmed in R. v. James 2013 MBCA 14:

1. Are the offences to be served consecutively? 2. If they are to be consecutive, what is the appropriate sentence for each

offence? 3. Is the total sentence excessive for this offender as an individual? 4. If the total sentence is excessive, then it should be given a last look and

adjusted accordingly.

[35] In R. v. Draper, 2010 MBCA 35, among many other cases, the Manitoba Court of Appeal has cautioned the lower courts not give offenders a “free pass” in relation to offences where multiple counts are being considered. While the

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offender committed an intricate series of offences that at first blush appear to be a single web of entangled lies that are inseparable from one another, the offences can, and should be considered in two distinct groupings.

The C.A. Offences

[36] The first set of offences was perpetrated against C.A., P.D. and N.P.. These include extortion of $3,000.00 from C.A.; fraudulently personating C.A. to the disadvantage of C.A. and N.P.; uttering threats to P.D.; personating P.D. to the disadvantage of C.A.; and personating the mother of P.D. to the disadvantage of C.A.. These offences are part of one ongoing series of dishonest acts perpetrated against a number of victims pursuant to one common design. Accordingly, it is appropriate to sentence the offender on a concurrent basis for each of these offences.

The J.H. Offences

[37] The remaining two counts, personation of T.T. to the disadvantage of J.H. and fraud under $5000 of J.H., are two offences that are part of one single series of acts, but form a separate narrative to the C.A. offences. These offences were perpetrated over a much longer time frame than the C.A. offences and impacted the victim in a different way. Therefore the offences involving J.H. shall be concurrent to one another, but consecutive to the C.A. offences.

GENERAL SENTENCING PRINCIPLES

[38] Counsel agree that a jail sentence is the appropriate sentence in this case. The court is required to consider a number of factors in determining whether a fit and appropriate sentence involves the imposition of jail in the community. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. At the same time, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. There are several objectives set out in the Criminal Code of Canada that are meant to achieve this fundamental purpose.

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DENUNCIATION AND DETERRENCE

[39] Deterrence and denunciation are important sentencing factors for this offender. In both sets of offences before the court, the offender has offended using the internet. In many respects the internet has become the last lawless frontier of our society. It is a place where it is easy to remain anonymous. Cyber predators can offend from behind their keyboards without regard to the victims they leave in their wake, no matter what real life borders separate them from their victims. The online predator hides in a cyber forest of IP addresses, usernames, and passcodes; buttressed by the fact that real world boundaries cause jurisdictional issues for the authorities. This sentiment is not new in the criminal justice system. The court in R. v. Alicandro (2009) 95 O.R. (3d) 173 (ONCA) had the following to say in the context of internet luring (at paragraph 36):

The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:

For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-too-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth. . . .

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings.

[40] While luring cases involve victims that are particularly vulnerable, the court’s observations regarding the use of the internet as a tool of crime apply

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equally to the case at bar. The internet is a tool of daily use for most citizens of the developed world for commerce, recreation, education, and in almost all facets of life in general. In order to properly utilize the services available on the internet, one must be able to trust that information will be protected. As technology rapidly develops, so do the opportunities to exploit unsuspecting users, both financially and emotionally. The combination of the global scope and anonymous nature of the internet results in fertile ground for online criminality. It follows that misuse of the internet in circumstances where the offender is able to anonymously manipulate his or her victims should be met with a sentence that places import on deterrence and denunciation.

AGGRAVATING AND MITIGATING CIRCUMSTANCES

[41] The court is also required to increase or reduce a sentence based upon any relevant aggravating or mitigating circumstances relating to the offence or the offender. It is therefore necessary to examine the offender’s aggravating and mitigating circumstances.

AGGRAVATING CIRCUMSTANCES

[42] It should be noted at the outset, that since the C.A. offences are being dealt with separately from the J.H. offences, the offender should not face double punishment by using one offence as an aggravating feature of the other. That being the case, there are aggravating factors that apply equally to each offence. The motivation for committing both sets of offences is aggravating in nature. In her presentence report, the offender blamed her behaviour on boredom and lack of friends. It is significant to note that the offender was not working at the time of the offences, nor was she engaged in school or any other pro-social activity outside of her home. In each case, the investigation involved significant police resources which were tied up over a long period of time in two countries. Lastly, the arrest of the offender was very public in nature, causing a great deal of media attention on the offender’s home community, which was portrayed in a negative light. This caused local elders to feel negatively and unfairly judged by the outside world. Each of these aggravating circumstances are to be considered as to each of the offences that are before the court.

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The C.A. Offences

[43] The offences involving C.A., P.D. and N.P. were planned, complex, and carried out over a long period of time. Unlike a crime of opportunity, where an offender might act out of a sudden impulse, this matter had to be planned out. Over the course of greater than a year, the offender executed a series of deceitful acts, each leading her prey to fall into the trap she had set. Her actions reflect that despite her limited education, the offender has an in-depth understanding of people that allowed for her manipulate them in nefarious ways. The C.A. series of offences were carried out such that the offender had to take small complex steps to make her identity appear legitimate, which involved obtaining personal information and manipulating it to gain the trust of each victim. The offences took over a year to perfect, with the Fake C.A. Facebook page being created around the end of 2010, cumulating in the orchestration of the meeting between P.D. and C.A. in December, 2011. The planned, complex and lengthy duration of theses offences are aggravating factors for sentencing purposes.

[44] There was significant victim impact occasioned by the offender in this case. Section 718.2(iii.1) of the Criminal Code of Canada mandates that evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation shall be deemed to be aggravating circumstances.

[45] In C.A.’s world, reputation is a commodity that allows an individual to parlay physical skill into marketability. An athlete’s time in the spotlight is relatively brief. Those who achieve fame in sports have dedicated their life to getting to that brief window of opportunity. Once a reputation has been sullied, the stain remains with the victim to some extent even if the loss of reputation was not deserved. The offender’s actions caused C.A. to lose his playing contract; his reputation and thus his marketability; and his ability to give back to the community through working with underprivileged children. In short, the offender came very close to ruining everything C.A. had worked for all of his life. The fact that she did not totally destroy C.A. speaks more to C.A.’s ability to emerge through adversity than anything that the offender did or did not do.

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[46] No victim impact statement was received from P.D. or her mother. That is not to say that they were not impacted by the offender’s actions. While P.D. appeared to be an adult, she was underage. The criminal justice system in Canada has recognized that young people do not make choices with the same maturity as do adults. The offender capitalized on the fact that P.D. had an interest in celebrity that is typical of young teenaged females. P.D. was manipulated by the offender to the point where P.D. was compromised in a way that is most feared by teens and parents alike in today’s world: the threat of having her naked image disseminated into cyber space. This was followed by actual threats of bodily harm that were taken seriously because of the fact that they were apparently made by someone who had power and wherewithal to carry out these threats and knew of her address. While the court has not received statements that these actions impacted P.D. and her mother, it is obvious that the offender’s actions caused real consequence to both.

[47] N.P. was also impacted by the offender’s actions. She described that after the offender’s scam was exposed, she “built a wall”, and was no longer open to being as giving. While the offender’s actions impacted N.P. the least, the fact that an actress’s charitable spirit was broken by the offender does merit consideration in light of N.P.’s ability to help others, given her station in life.

[48] The offender also shows little, if any insight into her offending behaviour. For example, when asked about the offences relating to C.A., she reflected that if this had not happened, he would have not won a championship ring in Miami (where C.A. signed at the conclusion of the 2012 season). The offender stated, “It was a good thing, doesn’t it seem like it? For me it’s not.” The offender went on to point out that it was not her who phoned the police, and told the writer of the presentence report, “I never say I’m sorry, I don’t say bad things to people unless I mean it – so I don’t have to say sorry.” While the offender did say in court, “I am sorry- for all of this. I just don’t want to go to jail” it is evident that she has little insight into the fact that although she was using the victims as players in her fantasy world, her actions caused them real harm. It follows that she has little remorse for her actions and that her words in court reflect that her regret is focused on the possibility of jail, rather than the position that she put her victims in.

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The J.H. Offences

[49] Similarly to the C.A. offences, the J.H. offences were planned, complex and carried out over a longer period of time. The offender built a relationship posing as T.T. over a period of eight years. In order to create a genuine appearance, the offender introduced other characters from T.T.’s life; obtained nude photographs of a male which were passed off as T.T.; and left voice messages from a male voice that the offender was able to generate from the internet. All of this was an elaborate ruse, designed to enable the offender to take advantage of J.H. to obtain material goods, have J.H. execute various deeds for her, and further the fantasy existence that the offender had created for herself.

[50] Further, the offender was arrested on January 15, 2013 and released on a promise to appear on conditions that she not access to the internet. Despite this fact, she texted J.H. to try to have her take responsibility for the C.A. search warrant, after convincing her family to reconnect her to the internet via cell phone. Given the relationship that had developed between the offender and J.H., this is a major aggravating factor. Also, prior to the offender’s second arrest, she elicited a third party to erase the Fake T.T. Facebook page, which would have been evidence as to the J.H. offences.

[51] J.H. also did not provide a victim impact statement. According to submissions, J.H. was “not emotionally ready” to do so. Reportedly, J.H. was devastated to learn that an eight year relationship that she had emotionally bought into was a sham. J.H. forfeited her own well being for the Fake T.T., by sacrificing her own basic needs to spend her limited resources in order to provide “stuff” to the offender. Meanwhile the offender, as Fake T.T. was emotionally abusive to J.H., often berating her in written correspondence during their daily contacts. It is evident that the offender recognized that J.H. was a particularly vulnerable person with limited financial wherewithal, and nonetheless took advantage of J.H. in a cruel and prolonged manner.

[52] As stated, section 718.2(iii.1) requires the court to consider victim impact, including personal and financial circumstances. Section 380.1(1) of the Criminal Code of Canada also mandates that where an offender is being sentenced for fraud,

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the following factors which are present in this case shall be considered aggravating:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

[53] The Crown has argued that the offender’s relationship with J.H. was tantamount to a domestic relationship, and therefore the court should apply section 718.2(ii) of the Criminal Code of Canada which states that evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner constitutes an aggravating factor. With respect, although the offender’s fraudulent behaviour involved the guise of a relationship, the offender did not have an ongoing domestic relationship with J.H., and therefore it would be inappropriate to apply section 718.2(ii). Nonetheless, those aggravating factors that have been articulated and are covered by sections 380.1 and 718.2(iii.1) properly encapsulate the nature of the relationship between the parties.

[54] When questioned about the J.H. offences, the presentence report notes that the offender seemed emotionless, and stated, “I don’t apologize for anything, I try my best to avoid people so I don’t get in trouble with them and avoid situations, so I don’t have to apologize for anything, if there is anything I can do to prove I’m sorry I will. I want them to know I’ll do anything, I don’t want to go back to jail.” Given that the offender attempted to convince J.H. to take responsibility for the offender’s acts, these comments reflect a similar lack of insight and remorse as was exhibited for the C.A. offences.

MITIGATING CIRCUMSTANCES

[55] There are also several mitigating circumstances that are to be considered in favour of the offender. Since mitigating factors apply to the offender in general,

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the court is required to consider these factors as they apply to both the C.A. offences and the J.H. offences.

[56] The offender plead guilty. As indicated, this matter was complex and involved investigative witnesses from both Canada and the United States. Had the matter proceeded to trial, the crown would have had to call 24 witnesses from nine locations in the United States. The preliminary inquiry alone would have lasted for three weeks. It should be noted that the preliminary inquiry would have occurred in the Easterville community where regular sittings occur once per month, there are no hotels, and travel from any location outside northern Manitoba requires an additional flight and travel via car. The trial would have consumed a further 4 to 5 weeks of court time. The disclosure associated to the case was described as “massive” by the crown, and involved several search warrants. The case was complex in that some degree of expertise would have been required to translate the language of cyber space to the trier of fact. Furthermore, the civilian witnesses were unique in that two were international celebrities, and one, J.H., was so emotionally distraught by the process that having her travel from Texas to testify would have taken a tremendous toll on her. Accordingly, the offender is to be given significant credit for her decision to plead guilty.

[57] It is also necessary to consider that the offender comes before the court with no criminal record. This is significant given that her environment growing up was such that she could have easily found refuge with negative peers or by turning to alcohol and drugs in order to cope.

[58] The offender was raised never having the guidance of a father, and with her mother first having significant alcohol addictions, then being bed ridden due to health concerns. The offender’s aunt, who was the glue that held the family together became her surrogate mother and raised her. However, the offender lost her aunt, along with both maternal grandparents prematurely, which impacted the offender greatly. Interestingly, while the date of her aunt’s death has not been specified, it has been placed as being around the time that the offender’s computer usage became criminal.

THE OFFENDER’S CIRCUMSTANCES AS AN ABORIGINAL OFFENDER

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[59] Defence argued that the offender resides in a community where the “blinding poverty” is evident generally and specifically within the offender’s own family. It was pointed out that her house is hardly habitable, and therefore the financial motivation for her offending behaviour was connected to the unique circumstances of the aboriginal people as articulated in section 718.2(e) of the Criminal Code of Canada.

[60] Generally speaking, according to the offender’s presentence report, Chemawawin Cree Nation epitomizes the impact of colonization on Canadian Aboriginal culture. This community is dealing with a number of issues including: substance abuse, family violence, high unemployment, low incomes, lack of educational opportunities, limited social supports and cultural loss. These problems have impacted the population which has been exacerbated by the fact that despite the relatively small size, the community has five Christian churches, but traditional Cree culture is not promoted. Also, while the leadership is keen to create employment opportunity for members of the community, it largely relies on government funding. In the meantime projects like local road construction are contracted to outside agencies. Ironically, the one major accomplishment that the community completed on its own is the erection of the local internet tower, which has allowed for the community to have high speed internet since 2011, when the offender began committing criminal acts on the internet.

[61] The Supreme Court of Canada in R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee [2012] 1 S.C.R. 433 directed that courts should consider the unique “circumstances of aboriginal offenders” as a way of contextualizing the offender’s background. The court is to take judicial notice of the history of

colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples (Ipeelee, supra. at paragraph 60).

[62] That context forms the basis of the consideration as to whether the offender should go to jail, or whether other sentencing options may be employed which will play a stronger role in restoring a sense of balance between the offender, victim, community and in preventing further future crime (see Gladue, supra. at paragraph

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65). Accordingly, it is a necessary step in the sentencing process to examine the offender’s background in light of the offending behaviour.

[63] The offender in the present case was not immune to her community’s issues. She grew up in poverty, and while not becoming entrenched in substance abuse and domestic violence herself, was impacted by the fact that these things were going on around her, even in her own family. There is no doubt that her reclusive tendencies are related in some way to her surroundings. Furthermore, it is likely that she turned to living an alternative fantasy existence on the internet as a coping mechanism to deal with the real world around her. In that respect, the context of the offender’s background evidently does bring perspective to her present circumstances. As was noted in Ipeelee, (supra. At paragraph 73);

Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

[64] The offender in the present case clearly acted voluntarily, however it is equally clear that her background factors contributed to her offending behaviour to an extent that her moral blameworthiness is diminished.

RESTORATIVE PRINCIPLES OF SENTENCING

[65] As stated by the Supreme Court of Canada in R. v. Proulx, [2000] S.C.J. No. 6 at paragraph 98, two of the main objectives of reform to the Criminal Code of Canada in sentencing were to reduce the use on jail and to emphasize principles of restorative justice, which include principles of rehabilitation; reparation to the victim and community; and promotion of a sense of responsibility to the offender.

REHABILITATION

[66] The court is obligated to craft a sentence which assists in the rehabilitation of the offender. For example, in Proulx, supra., the court noted that often sending

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offenders who have addictions issues to real jail is counterproductive on account of the prevalence of illicit substances in the jail system. The court went on comment at paragraph 111;

House arrest may also have a rehabilitative effect to a certain extent in so far as it prevents the offender from engaging in habitual anti-social associations and promotes pro-social behaviours such as attendance at work or educational institutions.

[67] In the present case, the offender, who has lived a reclusive lifestyle has suggested that house arrest is appropriate as it will assist in the offender’s rehabilitation. However, it can be said in this instance that house arrest would inhibit pro-social behaviours in that the offender has habitually confined herself to her home in an unhealthy way. While the offender has argued that her lifestyle will change if and when she is united with her husband, that relationship has many hurdles to overcome before the offender will be able to be united with him. Accordingly, it is difficult to understand how ordering more of the same living environment could provide a meaningful consequence or have any sort of rehabilitative effect upon the offender.

REPARATIONS TO THE COMMUNITY AND PROMOTION OF SENSE OF RESPONSIBILITY

[68] Making reparation for one’s actions is literally repairing a damage that one has caused, and as such is a concept based upon restorative justice. If an offender is able to restore a victim to the position they were in prior to being victimized, it may be said that justice is served. The process of making reparations can contribute to the offender’s sense of responsibility if the offender is able to appreciate the extent of the loss in making reparations.

[69] The offender’s actions impacted the respective lives of the main victims in vastly different ways. Beyond those people who provided victim impact statements, there are people whose identity was stolen and used for nefarious purposes, and the Chemawawin and Easterville communities who were unwillingly thrust into the international spotlight, and portrayed in an unfavourable light. The total loss to all is not only financial to the extent of millions of dollars, but includes

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emotional damages and a significant loss of reputation to C.A.. It is clear that the offender will not likely be in a position to make reparations to C.A.. Similarly, the offender will never be in a position to restore N.P.’s faith in charity, P.D.’s dignity, or J.H.’s ability to trust. At best the offender may only be able to make some reparations to her own community by learning to become a contributing member of the community.

WHAT IS THE APPROPRIATE SENTENCE FOR EACH OFFENCE?

[70] It is agreed that both sets of offences warrant a jail sentence. Prior to determining whether the offender is entitled to a conditional sentence order it is necessary to determine whether the total sentence should be less than two years.

The C.A. Offences

[71] In light of the necessity to impose a sentence that addresses both deterrence and denunciation; the many aggravating factors; the high degree of victim impact; and the inability for the offender to make meaningful reparations to her victims, but taking into account the offender’s background and mitigating factors, a total jail sentence of 15 months is appropriate, to be broken down as follows:

Information 1

• Count 1- Extortion of C.A. (section 346(1.1)(b) of the Criminal Code of Canada) – 15 months;

• Count 2- Personation of C.A. to the disadvantage of N.P. and P.D. (section 403 of the Criminal Code of Canada) – 15 months concurrent;

• Count 5 - Uttering threats to P.D. (section 264.1(1)(a) of the Criminal Code of Canada) – 6 months concurrent;

Information 2

• Count 2- Personation of P.D. to the disadvantage of C.A. (section 403 of the Criminal Code of Canada) – 15 months concurrent; and

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• Count 3- Personation of the mother of P.D. to the disadvantage of C.A. (section 403 of the Criminal Code of Canada) – 15 months concurrent.

The J.H. Offences

[72] Similarly, on account of the need for deterrence and denunciation; the aggravating factors; the high degree of victim impact; the inability for the offender to make reparations to her victims, but accounting for the mitigating background factors of the offender, the appropriate total sentence is eight months, concurrent to one another but consecutive to the C.A. offences.

AVAILABILITY OF A CONDITIONAL SENTENCE ORDER

[73] Since the appropriate sentence is a jail sentence less than two years, it is necessary to consider whether the offender should be allowed to serve her sentence in the community by way of a conditional sentence order. It should be noted that while the conviction for extortion would now not qualify for this type of sentence, a conditional sentence is not precluded because the offences occurred before the conditional sentence provisions were amended. It is equally clear that the offender would not pose a danger to the community if she was allowed to serve her sentence by way of house arrest. Further, the court must consider alternatives to jail as an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. This is particularly so in the case of this offender as she is of aboriginal descent. However, as was stated in Gladue and repeated in Ipeelee, section 718.2(e) should not be taken as requiring an automatic reduction of sentence. Nor should a conditional sentence order automatically be granted just because such a sentence is available.

[74] A conditional sentence should only be imposed where all of the circumstances suggest that such a sentence is consistent with the principles of sentencing. In this case, there are several factors that lead to the conclusion that a conditional sentence is not appropriate:

• The need for emphasis on deterrence and denunciation; • The period of time over which the offences occurred;

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• The high victim impact and the inability for the offender to make reparations;

• The lack of insight that the offender has as to the offences; • The fact that the offences continued after the offender was arrested

and released on two separate occasions; and, • The fact that house arrest is so similar to the current lifestyle that the

offender is currently living that such a sentence would not contribute to her rehabilitation.

[75] Accordingly, the only conclusion that can be reached is that a conditional sentence order would not contribute to respect for the law and the maintenance of a just, peaceful and safe society as it would not be a just sanction based upon the principles of sentencing.

LAST LOOK

[76] The sentence for all matters equates to 23 months of real jail. However, at this juncture, the court must take a “last look” to determine whether the sentence is “just and appropriate” in totality. The court may reduce a sentence on the basis of totality where, the cumulative sentence does not exceed the overall culpability of the offender, or where the total sentence would be “crushing” to the offender. The higher the moral culpability, the less likely the total sentence will be reduced to any extent, if at all (see R. v. Traverse 2008 MBCA 110 at paragraph 70). As indicated in the present case, the offender can be considered to have lesser moral culpability due to the circumstances related to her background. Further, she has lived a reclusive lifestyle that will make her residence in real jail more difficult than a typical first time offender. Based upon these factors, a 23 month sentence would be crushing to her. Accordingly, her total sentence will be reduced as follows:

Information 1

• Count 1- Extortion of C.A. (section 346(1.1)(b) of the Criminal Code of Canada) – 15 months reduced to 10 months;

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• Count 2- Personation of C.A. to the disadvantage of N.P. and P.D. (section 403 of the Criminal Code of Canada) – 15 months concurrent reduced to 10 months concurrent;

• Count 5 - Uttering threats to P.D. (section 264.1(1)(a) of the Criminal Code of Canada) – 6 months concurrent;

Information 2

• Count 2- Personation of P.D. to the disadvantage of C.A. (section 403 of the Criminal Code of Canada) – 15 months concurrent reduced to 10 months concurrent; and

• Count 3- Personation of the mother of P.D. to the disadvantage of C.A. (section 403 of the Criminal Code of Canada) – 15 months reduced to 10 months concurrent.

The sentence for the J.H. offences will remain 8 months consecutive.

[77] It is also clear that reintegration into society and rehabilitation will require the assistance of probation services. Accordingly , the offender will be placed on two years of supervised probation with the following conditions:

• Keep the peace and be of good behaviour; • Appear before the court when required to do so by the court; • Remain within the jurisdiction of the court unless written permission to go

outside that jurisdiction is obtained from the court or the probation officer; • Notify the court or probation officer in advance of any change of name or

address and promptly notify the court or supervisor of any change of employment or occupation;

• Report within 48 hours of your release from custody to probation services, and thereafter in the manner and time as directed by probation services;

• Perform 200 hours of community service work in the first 18 months of your probation order;

• Attend, participate and complete counselling as directed by your probation officer to include (but not limited to) victim sensitivity training, employment counselling, and cultural awareness counselling;

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• Not to access the internet except for educational and employment purposes while under the supervision of Probation Services; and,

• No contact or communication directly or indirectly with P.D., J.S., T.T., C.A., J.H. and N.P.

Pursuant to section 743.21 of the Criminal Code of Canada the offender shall have no contact or communication directly or indirectly with P.D., J.S., T.T., C.A., J.H. and N.P. while she is in custody.

There will be an order of forfeiture of the photographs of P.D. pursuant to section 164.2(1) of the Criminal Code of Canada and forfeiture of all other items seized pursuant to section 490.1(1) of the Criminal Code of Canada.

Costs and surcharges will be waived as the offences predate the amendment to section 737 of the Criminal Code of Canada.

CONCLUSION

[78] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. At the same time, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. On one hand, the offender is an aboriginal woman who is vulnerable in many respects. It is clear that her background factors do explain how she became an internet predator, and in that respect reduces her moral culpability, so as to mitigate her sentence. On the other hand, in this offender’s case, the principles of restorative justice cannot be applied so as to equate to a just sanction. She cannot make reparations when her offending behaviour has traversed boarders and she exists in such a profoundly different world than her victims and community. Further, a conditional sentence order does not provide a meaningful consequence in light of the reclusive existence she has known, as it only sends her back from whence she came. Nor does such a sentence contribute to her rehabilitation as it would only serve to promote a further stint of reclusive lifestyle going forward.

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[79] The total sentence of 18 months jail plus 2 years of probation addresses all principles of sentencing and affords the greatest restraint possible in the circumstances.

“Original signed by:”

_________________________ ROLSTON, P.J.