2013 QCCQ 6644, 2013 QCCQ 6644

R. c. Ibrahim 2013 QCCQ 6644 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL CITY OF GATINEAU Criminal Division Nos. 550-01-042340-093/550-01-042345-092 DATE: June 25, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE LAURIN J.C.Q. ______________________________________________________________________ THE QUEEN Complainant c.

Abdi Razak Ibrahim and Khalid Abdi Ibrahim Defendants ______________________________________________________________________ SENTENCE Rendered orally on June 25, 2013 ______________________________________________________________________ INTRODUCTION [ 1 ] In record 550-01-042340-093, Mr. Abdi Razak Ibrahim pleaded guilty on April 15, 2011 to having defrauded the ministère de l'Éducation du Québec (the Ministère) of an amount of money exceeding $5000 ( section 380(1) (

a) Criminal Code ) . [ 2 ] In record 550-01-042345-092, Mr. Khalid Abdi Ibrahim pleaded guilty on April 15, 2011 to having defrauded the Ministère of an amount of money exceeding $5000 ( section 380(1) (

a) Criminal Code ) . [ 3 ] The two cases were heard jointly since the facts were the same and the fraud followed the same pattern in both. Only the final defrauded amount differed between the two cases. QUESTION IN DISPUTE [ 4 ] The court must now impose the appropriate sentence for both accused. FACTS [ 5 ] Between September 1, 2005 and October 1, 2008, both accused were solicited by a representative of Night Hawk College. This College was dispensing courses in the field of computer technologies.

The representative offered the defendants the opportunity to obtain a loan from the Ministère and to cash part of that loan. In exchange, they would receive a scholarship and not have to attend classes. [ 6 ] To that end, Night Hawk College prepared all the paperwork required to file for a student loan and scholarship. To be eligible for the loan and scholarship, the students had to reside in the province of Québec. Both accused were residing in Ottawa, province of Ontario. Night Hawk College prepared a false lease showing the address [...], city of Gatineau in the province of Québec.

Both accused signed that document. They also signed other documents stating their residential address to be [...] in Gatineau, province of Québec. More documents established their parents' residence to be in Qatar, although they were all living together as a family in Ottawa, Ontario. [ 7 ] Both defendants initially felt this situation was suspicious and did not want to be part of it, but after many calls from Night Hawk

College, they finally agreed to participate in the fraud. They knew they signed a false lease with a fake address in Québec, they made untrue statements as to their parents' official address and they registered for courses they never attended. They both admitted to never attending any classes at Night Hawk College for educational purposes. [ 8 ] They both received initial payments of $5000 from Night Hawk College, followed by monthly allowances from the Ministère totalling $4290 each. The preponderant evidence established at $9290 the total amount received by the accused in each case.

According to the Crown, they also received a sum of $2000 each for the purchase of a computer. That fact was strongly denied by the defence and the Crown was unable to prove that they obtained such an amount. The court believes the Crown did not meet its burden of proof for that amount [ 9 ] The accused did not receive all the money defrauded from the Ministère. The total fraud for Abdi Khalid Ibrahim and Night Hawk College is $19,173 and, for Abdi Razak Ibrahim and Night Hawk College, it is $21,173.

Night Hawk College kept the balance of the defrauded money. [ 10 ] Moreover, they were aware of the fact that the money given to them was a loan and that they would have to reimburse the Ministère. [ 11 ] At some point, Abdi Razak Ibrahim realized that he did not receive all the money the government claimed it gave him, so he wrote two emails to a representative of the Ministère, Ms. Simon. [ 12 ] According to Sergeant Ippersiel, who investigated these cases, 150 students were recruited and the total fraud committed against the Ministère was approximately $2,150,000.

The head of the pyramid (or leaders of the fraud) was composed of three administrators for Night Hawk College: Mr. Jibril Ahmed, Mr. Munajj Rochelle and Mr. Mark Cohen. Under their commands were recruiters targeting vulnerable persons (unemployed, low income, Native people from Rapid Lake, homeless persons, etc.). An average of 12 to 15 students truly attended classes and were granted a real diploma from Night Hawk College.

As of today, they have never worked in their field of studies. [ 13 ] Pre-sentence reports were prepared, from which the Court retained the following information: Abdi Razak Ibrahim: 31 years old single lives with his family works as a salesman for Digital Media (commission plan) completed a degree in security at Algonquin College completed a college degree in financial administration good participation in establishing this report is affected by the legal proceedings and realizes the enormity of his actions occupational therapy has no criminal values good and diversified social network had a significant relationship for a few years family values and work are primary and dominant in his life no previous convictions little chance of repeating his offence tends to minimize his responsibility in the fraud recognizes his criminal behavior and feels remorseful the lure of profit was conscious of the fraudulent actions of the school could benefit from a sentence supervised in the community (find work, show proof of it, follow the probation officer's recommendations) is eligible for community work Abdi Khalid Ibrahim: 29 years old single lives with his family high school education

volunteering for a youth program Muslim, takes no drugs or alchool is a responsible and helpful person recognizes that he should have been more vigilant assumes responsibility for his actions. wanted to obtain the computer degree offered by Night Hawk and went to the College to attend classes, but the premises were not ready feels he was manipulated by the College administrators accepts the blame and considers it a lesson learned mitigated cooperation in completing this report, punctual and regular for his meetings fears jail time and is ashamed no previous convictions is not delinquent is capable of social and personal adaptation looking for work wants to take charge of his life and be an honest citizen has little chance of repeating his offence tends to minimize his responsibility in the fraud is without work deliberately turned a blind eye on his criminal actions the lure of profit and the wish for a better life held back information on family history downplays his actions since his implication was of lesser importance could benefit from a sentence supervised in the community (find work, show proof of it) eligible for community work POSITION OF THE PARTIES [ 14 ] The Crown suggests a conditional sentence of 4 to 6 months, with probation of 2 years and the obligation to refund the money cashed by the accused, a sum of $9290.

The Crown bases its suggestion on the case of Ms. Laforest, a convicted offender in the same fraud. She was sentenced to a conditional sentence of 4 months, with the obligation to refund the sum of $6000 (had already reimbursed $5000). At the time of the fraud, Ms. Laforest was a 45-year-old sales clerk on a commission plan with Staples. She claimed she needed the money to pay her child's tuition fees. [ 15 ] On the other hand, the defence asks for a suspended sentence and probation of 2 years, with the usual conditions including 240 hours of community work.

The defence suggests an order of restitution to the victim, in accordance with

section 738 of the Criminal Code , in the sum of $9290 against each defendant. Finally, the defence states that the accused do not have a landline and believe they would be unable to fulfill the conditions of a conditional sentence. ANALYSIS [ 16 ] The purpose and principles of sentencing appear in

section 718 of the Criminal Code : [1] 718. 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm

done to victims and to the community. [ 17 ] In this type of case, the Court should favour the following objectives: to denounce unlawful conduct and to deter the offender and other persons from committing offences. This should be followed by reparation of the harm done and rehabilitation of the offender. [ 18 ] The sentence must be in proportion to the gravity of the offence and the degree of responsibility of the offender.

In addition, the Court must take into consideration the following principles: • a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; • a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; • an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; • all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. ➢ A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender Objective factor [ 19 ] The offence of fraud is punishable by a term of imprisonment not exceeding fourteen years.

Subjective factor [ 20 ] There is a legal precedent from the Court of Appeal of Québec, Lévesque v.

Queen, [2] that establishes the aggravating and mitigating factors to be taken into consideration in sentencing for fraud: [TRANSLATION] 1. the nature and extent of the fraud, namely the amount of the fraud and the real loss suffered by the victim; 2. the degree of premeditation, namely the planning and the scheme used; 3. the behavior of the offender after the commission of the offence, including restitution and compensation to the victim, the accused's acknowledgment of his guilt and his cooperation in the investigation; 4. prior convictions, their gravity and proximity in time; 5. the personal advantages to the accused; 6. the abuse of trust or authority by the accused toward the victim; 7. the motivation of the accused in perpetrating the offence, such as cupidity, physical or psychological disorder and financial distress; 8. the fact that sums defrauded come from public funds and are reserved for persons in need. [ 21 ] The court will apply these factors to the facts of the cases at hand. 1. the nature and extent of the fraud, namely the amount of the fraud and the real loss suffered by the victim [ 22 ] Three administrators of Night Hawk College, Jibril Ahmed, Munajj Rochelle and Mark Cohen, recruited 150 students who became accomplices in the fraud against the Ministère for an approximate total of $2,150,000.

The total fraud for Abdi Khalid Ibrahim is $19,173 and for Abdi Razak Ibrahim it is $21,173. 2. the degree of premeditation, namely the planning and the scheme used [ 23 ] The accused are at the bottom of the ladder in this criminal organization and the least implicated. The three administrators mentioned above were the brains of the scheme and the head of the organization. The fraud lasted for many months and the accused received monthly allowances to attend college.

3. the behaviour of the offender after the commission of the offence, including restitution and compensation to the victim, the accused's acknowledgment of his guilt and his cooperation in the investigation [ 24 ] The accused have not been charged with any new accusations since the introduction of the present cases on May 19, 2009. They have not refunded one penny to the victim even though defence counsel asked for several postponements of the hearing on sentencing in order to give them a chance to start refunding the Ministère.

They pleaded guilty and finally admitted their responsibility, but are trying to mitigate it. 4. prior convictions, their gravity and proximity in time [ 25 ] They did not have any previous convictions. 5. the personal advantages to the accused [ 26 ] The evidence retained by the Court demonstrates that the accused received $9290 each. 6. the abuse of trust or authority by the accused toward the victim [ 27 ] They pretended their parents were living in another country, they signed a false lease attesting that they were residing in the province of Québec, they pretended to be Québec students and they signed false class attendance sheets. 7. the motivation of the accused in perpetrating the offence, such as cupidity, physical or psychological disorder and financial distress [ 28 ] The motivation was the easy money.

They were naive and greedy in this scheme. 8. the fact that sums defrauded come from public funds and are reserved for persons in need [ 29 ] The defrauded sums came from public funds, through the Ministère. [ 30 ] In concluding this section, the Court attests that the accused had moderate criminal responsibility, but their lack of efforts to refund the Ministère, despite approximately four years that have elapsed since the introduction of the cases and despite the postponements of the sentencing hearing requested by defence, increases their responsibility and affects the principles of rehabilitation and reparation. ➢ A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [ 31 ] Two administrators of Night Hawk College, Jibril Ahmed and Munajj Rochelle, were sentenced to a term of imprisonment of 27 months. [ 32 ] In the same fraud, but at a lower level of responsibility, Mario Lavigeur, who had previous convictions, was sentenced to a jail sentence of 12 months.

Sylvie Laforest was sentenced to a conditional sentence of 4 months and probation of 1 year, with the condition to refund the Ministère within 11 months (had already reimbursed $5000). At the time of the fraud, Ms. Laforest was a 45-year-old sales clerk. Cynthia Proulx was sentenced to a term of imprisonment of 1 month and probation of 3 months, with the condition to refund $1500 to the Ministère within 2 months. Finally, Odette Richard had no previous convictions, but had 2 aggravating factors (defrauding the government and the duration of the fraud).

She started to refund the Ministère in 2007, even though she had a low-income job (delivering newspapers early in the morning). She had a very positive pre-sentence report. Finally, she concluded an agreement with the Ministère to refund the balance owed by monthly instalments and she respected that agreement. She was sentenced to a suspended sentence, with probation of 2 years. ➢ An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [ 33 ] The Court believes the appropriate sentence should be a term of imprisonment.

According to the pre-sentence reports, a conditional sentence could be appropriate, but the accused do not have a landline and they believe they would be unable to respect the conditions imposed by the Court. ➢ All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders

[ 34 ] The Court refers to the remarks made in the above section. CONCLUSION [ 35 ] According to the Court’s analysis, a term of imprisonment is appropriate in these cases. The Court is concerned with the principle of the protection of the public, and that principle is served by a sentence that privileges denunciation and collective deterrence, and the inherent counterpart of that is the perception of the public.

Also, the Court notes that the accused failed to demonstrate their wish to make financial amends, since they neglected to start refunding the Ministère, although a long period of time was allowed for that express purpose in the course of these proceedings. [ 36 ] Considering the rank occupied by the accused in this scheme, the other sentences for offenders at the same level and the particularities of these two cases, the Court feels that a term of 6 months of imprisonment is appropriate, followed by probation of 1 year with supervision.

THEREFORE, THE COURT: [ 37 ] SENTENCES both defendants to 4 months of imprisonment, followed by supervised probation of 1 year, with the compulsory conditions and the following: - seek, find and keep employment; - show the probation officer proof of the steps taken to achieve that goal; - show the probation officer proof of the income earned; - follow the probation officer's recommendations; - establish a budget with the probation officer and make arrangements with the Ministère to start and to continue reimbursement by monthly instalments; [ 38 ] ORDERS each defendant to make restitution to the Ministère in the sum of $9290, in accordance with

section 738 of the Criminal Code ; [ 39 ] WITHOUT a victim surcharge, in view of the term of imprisonment pronounced. __________________________________ SERGE LAURIN J.C.Q. Mtre. Michaud, Crown attorney Mtre. Doyon, defence attorney Hearing dates: December 14 and 15, 2011, December 14, 2012 and May 2, 2013