What do a cheating horse trainer in Ontario and a Richmond interpreter who helped people cheat on ICBC's driver's licence exam have to do with the sentencing of Robert Riley Saunders?
Over the past two weeks, the fraudulent former social worker was in Kelowna court for his Gardiner Hearing, where his defence counsel and Crown argued about whether Saunders' admitted fraud against the Ministry of Children and Family Development actually deprived the youth in his care of funds they would have received. The hearing wrapped up Thursday.
While Saunders has pleaded guilty to three of his 13 charges, this disputed aggravating factor of his fraud will impact the length of his sentence.
The two main court decisions Crown prosecutor Heather Magnin relied on in her submissions Thursday was the 2015 Supreme Court of Canada decision R. v. Riesberry and the B.C. Court of Appeal decision from earlier this year, R. v. Jamo.
Both prior decisions deal with fraud cases, and provide precedent around how the courts can deal with scenarios where a fraud causes a risk of financial deprivation to a third party.
The Riesberry decision stems from an Ontario horse trainer, Derek Riesberry, who was caught giving his horse performance enhancing drugs prior to a race, and he was convicted of defrauding the betting public.
The more recent Jamo case involved Amjed Jamo, who was convicted of fraud under $5,000 for helping his clients, who he provided translation services for, cheat on the ICBC driver's licensing exam.
“The intention of both offenders was to enrich themselves through a fraudulent act; Mr. Reisberry by ensuring his horse won the race, Mr. Jamo to receive payment from people who would not otherwise pass their driving test,” Magnin explained during her submissions Thursday.
“The consequences arising from the offenders' actions resulted in a financial deprivation to a third party who were not directly involved in the initial dishonest act. In the case of Mr. Riesberry, this was the betting public, who if aware of the fraud may have chosen not to place a bet, and in the case of Mr. Jamo, this was ICBC, who would always have reason to question whether accidents involving person who he helped cheat was caused by their lack of competency to pass a driving exam.
“The Crown says the facts here are analogous; here Mr. Saunders' clear intention was to steal money from the Ministry. Like the offenders in Riesberry and Jamo, he did not care what affect his actions might have on other persons.”
In the Jamo case, the accused argued on appeal that the risk of financial deprivation to ICBC was too remote, but citing the Supreme Court of Canada's Riesberry case, the B.C. court of appeal disagreed.
While the court agreed "a number of things would have to happen" for ICBC to sustain actual loss, the risk of that loss was still present and was still relevant.
The test the Appeals court relied on is: "Did the dishonest act cause a risk of prejudice to the victim’s economic interests?"
Magnin said a similar application can be used in the Saunders case, as it's now not possible to determine the actual deprivation all 24 youth the Crown has identified in the case faced.
“For this reason, in most cases the Crown is not able to assert actual deprivation,” Magnin said. “What is clear is that all 24 of the vulnerable youth will always have reasons to question whether they were provided the support and services mandated by legislation and will always have reasons to believe Mr. Saunders stole money they were meant to receive and at all times he put his interests first.”
Saunders' defence counsel Bryan Fitzpatrick conceded that past court decisions show the risk of deprivation in fraud cases “casts a wide net,” but he maintained the Crown was unable to prove beyond a reasonable doubt that Saunders' fraud had actual concrete impact on any of the youth's financial interests.
While Magnin laid out a handful of examples where Saunders stole money that had been approved for the youth in his care, whether through Independent Living Agreements or aging-out-of-care “start-up funds,” Saunders maintained these youth would not have been entitled to the money he stole.
It's not clear when Justice Steven Wilson will make a decision on the Gardiner hearing, nor how these potential aggravating factors will impact Saunders' eventual sentence. Crown prosecutor Magnin has not said what length of sentence she'll be seeking in the matter.
The final two-day sentencing hearing is expected to occur in late May or early June.