CITATION: R. v.

Chartier, 2015 MBPC 50

Date: 2015 10 14
IN THE PROVINCIAL COURT OF MANITOBA
BETWEEN:
Her Majesty the Queen
and
Shelly Chartier

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Terry McComb
for the Crown

John Skinner
for the Accused

Reasons for Decision delivered:

October 14, 2015

ROLSTON, P.J.
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identify the complainant/witness shall not be published in any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.
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.

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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 offenders 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. Ill fuck you up. Keep threatening
me Ill 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 offenders 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 offenders 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 offenders 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 offenders life.
The offenders 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 offenders 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 offenders 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 uncles
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 offenders 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
offenders 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 offenders 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-toomany 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
courts 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 offenders 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 offenders 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 athletes 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 offenders 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 offenders 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 todays 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 offenders actions caused real consequence to
both.
[47] N.P. was also impacted by the offenders actions. She described that after
the offenders scam was exposed, she built a wall, and was no longer open to
being as giving. While the offenders actions impacted N.P. the least, the fact that
an actresss 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, doesnt it seem like it? For me its 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 Im sorry, I dont say bad things to people unless I
mean it so I dont have to say sorry. While the offender did say in court, I am
sorry- for all of this. I just dont 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 offenders 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 offenders 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 offenders spouse or common-law
partner constitutes an aggravating factor. With respect, although the offenders
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 dont apologize for anything, I try
my best to avoid people so I dont get in trouble with them and avoid situations, so
I dont have to apologize for anything, if there is anything I can do to prove Im
sorry I will. I want them to know Ill do anything, I dont want to go back to jail.
Given that the offender attempted to convince J.H. to take responsibility for the
offenders 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 offenders 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 aunts death has not been
specified, it has been placed as being around the time that the offenders computer
usage became criminal.
THE OFFENDERS CIRCUMSTANCES AS AN ABORIGINAL
OFFENDER

Page: 18

[59] Defence argued that the offender resides in a community where the
blinding poverty is evident generally and specifically within the offenders 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 offenders 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 offenders
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

Page: 19

65). Accordingly, it is a necessary step in the sentencing process to examine the

offenders background in light of the offending behaviour.
[63] The offender in the present case was not immune to her communitys 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 offenders 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

Page: 20

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 offenders
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 ones 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 offenders sense of responsibility if the offender is able to
appreciate the extent of the loss in making reparations.
[69] The offenders 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

Page: 21

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
OFFENCE?

THE

APPROPRIATE

SENTENCE

FOR

EACH

[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 offenders 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

Page: 22

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;

Page: 23

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;

Page: 25

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 offenders 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.