Court of Appeal quashes Kelly’s restitution order

AMHERST – Rhonda Kelly will not have to pay the province $97,000 in restitution as a result of her role as the executive director of the former Cumberland Regional Development Authority.

In a 15-page decision released Wednesday, the Nova Scotia Court of Appeal agreed that Kelly did not personally benefit from the money and didn’t see why the former executive should have to pay out her own pocket for money that used to benefit the community.

“There was no elaborate scheme that disguised where the funds were spent. As the Crown acknowledged in its factum, it was CRDA’s general accounting system that prevented knowing exactly where every dollar raised was spent, because there was co-mingling of project funds,” Justice J.A. Beveridge said in his written decision. “That was the practice at CRDA, not part of an elaborate scheme hatched or perpetrated by (Kelly).”

“I agree justice should be done, but how is it just that $97,000 of taxpayers’ money was spent on CRDA operations and projects, but Ms. Kelly becomes the sole taxpayer that must, over her lifetime, be required to pay for those projects? Based on this record, that would be the effect of the restitution order imposed by the trial judge.”

Kelly received eight months house arrest followed by four months of abiding by a curfew after pleading guilty in April 2017 to causing Economic and Rural Development and Tourism to act upon a forged document.

Nine other charges were dismissed.

Justice Beveridge said that while the trial judge tried to balance the interests of the victim with the position of the accused, “there was absolutely no evidence that the province lost money by the commission of the offence of uttering forged documents. The appellant was not charged with theft of monies. She was charged with uttering forged documents and fraud. She was found not guilty of fraud.”

Even if the fraud charges had been in play, he said, a conviction for fraud does not automatically equate to a loss of property that opens the door to a potential restitution order.

Justice Beveridge said the agreed statement of facts stated the money went to CRDA. None of it went to Kelly’s personal benefit and there “is no evidence to suggest that funds were ‘diverted’ from community projects.”

Because of the absence of any basis to say the province suffered a loss of property because of the commission of an offence is sufficient to quash the restitution order.

The Court of Appeal also said there is no merit in the suggestion that Kelly committed a breach of trust.

“I do not doubt that provincial officials trusted her documents, but every fraudulent transaction involves a victim placing trust in the offender; that does not make their relationship one of trust in the sense of a recognized aggravating factor in sentence such as solicitor-client, principal-agent, doctor-patient or other similar relationships,” Justice Beveridge wrote. “Ms. Kelly was in a position of trust vis-à-vis her employer, CRDA. She did not steal from nor defraud her employer. She obtained funds for CRDA from ERDT for CRDA’s use to operate and fund community projects. That does not mean she deserves any praise for her conduct. Far from it. Not only did she commit, on a number of occasions, a criminal offence, she involved others, even exposing CRDA itself to potential criminal liability.

While the trial judge said justice had to be done and it had be seen to be done by the community, Justice Beveridge said this reasoning is flawed because there was no elaborate scheme that disguised where the funds were spent.

Kelly’s sentencing last summer ended a seven-year story that began in 2010 when two CRDA employees were dismissed after voicing their concerns over some of the practices taking place in the government-funded organization.

An ombudsman’s report backed up their concerns calling for a forensic audit that was completed in 2013 by PricewaterhouseCoopers.

Charges were laid against Kelly in 2016.

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Twitter: @ADNdarrell