2011 MBPC 72, 2011 MBPC 72

Citation #2011 MBPC 72 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Donald Melnyk, for the Crown ) - and - ) ) Kokulan Kanagaratnam ) Eric A. Wach, for the Accused ) ) Judgment delivered: ) November 18, 2011 KELLY K. MOAR, P.J. [ 1 ] On July 4, 2011 this accused appeared before my sister Judge Smith and entered guilty pleas to the following offences now before the court: 1. Possession of instrument for forging credit cards (x11) which carries a maximum penal sentence of 10 years per count. 2. Forge/Falsify a credit card (x4) which carries a maximum sentence of 10 years. 3.

Possession of forged credit card which also carries a 10 year maximum sentence. 4. Possession of another person’s identity information intended to be used to commit a criminal offence (x16) of each offence carries a maximum penalty of 5 years imprisonment. [ 2 ] On September 6, 2011 I heard the sentencing submissions and reserved to consider the materials that were filed by both counsel. [ 3 ] The instrument referenced in the offences was a device that was created to be placed over top an existing automated banking machine (“ABM” used interchangeably with automated teller machine “ATM”).

These devices were made to look as if they belonged to the actual banking machine being compromised and through the use of this device the accused and his accomplice(

s) were able to capture credit card and/or debit card data from bank cards that were inserted into the banking machine. The accused as a member of this group would then use the captured data from the bank cards and place it onto a duplicate card that they would then use to withdraw funds from that account. These offences were carried on in Edmonton, Calgary, Saskatoon and Winnipeg. [ 4 ] The factual underpinning of the guilty pleas was taken from the Crown submissions made at a prior bail hearing that was held before my sister Judge Chapman on October 19, 2010. Those submissions were supplemented by Mr.

Melnyk at the sentencing hearing. [ 5 ] The matters before the court came to the attention of the Winnipeg Police Service on September 21, 2010. At approximately 8:40 a.m. on that date the accused placed a card reader overlay along with a pinhole camera overlay on top of the Toronto Dominion Bank (“TD”) ATM located at 65 Goulet Street.

As indicated earlier, those devices were being used by the accused and his accomplices to capture the credit card data of various patrons of that ATM such that they would then be able to harvest a fraudulent card and use it to obtain funds from the specified accounts. [ 6 ] At approximately 9:26 a.m. on that day a customer attended to that ATM and while in its vicinity heard what he believed to be talking. He began to look about and discovered a cell phone that was attached to the bottom of the ATM.

As I understand it, that phone was on and was being used as a way for the accused to monitor the ATM to see if they had been discovered. [ 7 ] Winnipeg Police were notified and commenced an investigation. Surveillance photos from the ATM camera captured images of a male and a vehicle he was noted to be departing in from the scene.

The police were able to trace that vehicle back to AVIS Car Rentals and learnt this accused was listed as the person who had rented the vehicle. [ 8 ] With that name, Winnipeg Police were able to obtain a photo of the accused from the Toronto Police Service and compared it with the ATM surveillance photos which confirmed the accused’s identity as the person noted. Given that his whereabouts were unknown an arrest warrant was obtained.

I am advised that on that date 3 cards were harvested from the ATM with losses totalling $1,882.18 suffered by the institution. [ 9 ] On September 24, 2010 this accused was subsequently located at the Winnipeg International Airport and placed under arrest. Further investigation revealed that the accused had earlier that day attended to a Winnipeg UPS store and made arrangements to send a parcel to his home in Ontario.

[ 10 ] A search warrant was obtained by the Winnipeg Police and at about 11:45 p.m. that warrant was executed and the parcel was seized from UPS personnel at the airport.

In the package police located two TD pinhole camera overlays, a card reader-writer, tools to repair electronics, three forged TD bank debit cards, one forged Canadian Imperial Bank of Commerce (“CIBC”) debit card and four TD bank forged debit cards. [ 11 ] Further investigation led to the police lifting a fingerprint off the screen protector on the Blackberry phone located under the ATM machine at the TD bank and that print was positive for this accused. [ 12 ] A check with the Westjet Corporate Security Office revealed the accused had travelled to Winnipeg on September 17, 2010 from Toronto in the company of Geevan Nagendran.

That male had been located in the company of the accused upon his arrest at the Winnipeg International Airport but at the time he was released without charges. However, I am told that as a result of the Winnipeg Police Service continuing their investigation, Mr. Nagendran has been implicated as being involved and there is now an arrest warrant in existence for him. [ 13 ] The investigation continued and police discovered that on July 8, 2010 the accused and co-accused had attended to the CIBC located at 35 Lakewood Boulevard here in Winnipeg.

The ATM surveillance cameras captured this accused applying the overlay devices so as to fraudulently capture credit/debit card data from users of that ATM machine. Twelve debit cards were found to have been harvested with a total of $13,918.09 being stolen. [ 14 ] On July 9, 2010 the accused and a co-accused attended to the CIBC located at 1658 Main Street. Once again the accused had his image captured by the surveillance cameras as he applied the overlay device.

Various customer debit card data and PIN numbers were obtained and those accounts were illegally accessed for $1,598.06. [ 15 ] On July 10, 2010 the accused returned to the CIBC located at 35 Lakewood Boulevard. Data was fraudulently obtained from various customers who utilized the machine and $2,909.00 was withdrawn from their accounts. [ 16 ] On July 12, 2010 they attended back to the same CIBC location, stole data from the various card users that utilized that ATM and were able to harvest 15 cards to obtain a total amount of $3,072.00.

This continued on July 15, 2010 where once again customer account information was accessed and $2,966.28 was stolen from the various accounts. [ 17 ] On July 17, 2010 the accused switched locations to the CIBC branch on Marion Street where his image was captured placing the overlay device onto the ATM. A total of 24 cards were harvested leading to $6,350.52 being stolen. [ 18 ] On July 18, 2010 they returned back to the 119 Marion Street CIBC location and continued their illegal activities. A total of $1,000.00 was obtained from that location.

Later that day they switched to the CIBC located at 2260 McPhillips Street where they were able to harvest 22 cards and stole $2,474.09. [ 19 ] On July 19, 2010 they returned back to the same CIBC on McPhillips Street and continued their criminal behaviour resulting in a loss of about $2,600.00 to the bank. [ 20 ] In each of these cases, the image of the accused was either captured as the person placing the overlay device onto the ATM or standing watch as it was being done.

On October 4, 2010 the accused was positively identified as the person in the surveillance videos and he was promptly located at the Provincial Remand Centre and arrested on these matters. The accused refused to leave the Provincial Remand Centre to be processed so an arrest warrant was obtained and executed.

This authorized the police to remove the accused from the Provincial Remand Centre in order to be transported to the Public Safety Building to be processed. [ 21 ] The accused initially indicated that it was his co-accused who was responsible for the offences but refused to identify this individual to the arresting officers. In addition he declined to make any comment in relation to this arrest. [ 22 ] The total loss on the nine Winnipeg charges was $34,216.51. [ 23 ] The investigation continued and similar offences were identified as having occurred in Edmonton, Calgary and Saskatoon.

Images from those surveillance cameras were collected showing an individual placing overlay devices onto the ATM. A comparison of those images with that of the Winnipeg Police Service photograph of the accused led police to conclude that Mr. Kanagaratnam was the same person involved in those offences. As a result I am told that he had those matters waived into Winnipeg and entered 16 guilty pleas covering those matters. [ 24 ] Each of the offences are similar in nature.

They involve the use of an overlay device to obtain the identity information of various customers which is then used to access their accounts to steal funds. [ 25 ] Briefly, those offences are as follows: (

a) June 30, 2011 attended ATM on Varsity Drive in Calgary, Alberta and harvested 29 cards with losses totalling $13,767.23 (

b) July 1, 2010 attended CIBC on 17 th Avenue in Calgary, Alberta and harvested 11 cards with losses of $7,438.46 (

c) July 1, 2010 attended CIBC on 9 th Avenue in Calgary, Alberta and again harvested 11 cards with losses this time at $8,141.38 (

d) July 2, 2010 attended CIBC on Varsity Drive in Calgary, Alberta and stole $2,320.20 (

e) July 4, 2010 now at CIBC on 118 th Avenue in Edmonton. Alberta and stole $500.00

[ 26 ] It is important to note that the accused was in Winnipeg committing similar offences between the dates of July 8 – 19, 2010: (

f) July 25, 2010 attended CIBC on 21 st Street in Saskatoon, Saskatchewan and harvested 9 cards with losses of $1,403.00 (

g) July 27, 2010 attended same ATM in Saskatoon, Saskatchewan and harvested 10 cards with losses of $4,570.99 (

h) July 29, 2010 back to same ATM in Saskatoon, Saskatchewan but was unable to access any funds (

i) July 30, 2010 he tried again at same Saskatoon, Saskatchewan location and this time obtained $964.50 (

j) August 1, 2010 the accused and his associates went to the CIBC on Broadway in Saskatoon, Saskatchewan and harvested 12 cards with losses of $4,482.50 (

k) August 1, 2010 they moved locations to the Confederation Drive CIBC in Saskatoon, Saskatchewan and stole $1,000.00 (

l) August 2, 2010 they returned to the same branch on Confederation Drive and stole $1,746.00 (

m) August 2, 2010 the group moved to the 21 st Street CIBC in Saskatoon, Saskatchewan and harvested 16 cards resulting in losses totalling $6,683.77 (

n) August 3, 2010 they returned to the same location on 21 st Street but were unable to obtain any money (

o) August 4, 2010 they went back to the Broadway CIBC location and harvested 16 cards with losses of $7,365.00 (

p) August 14, 2010 they attended to a CIBC on 82nd Avenue in Edmonton, Alberta where they were able to steal identity information but could not access any funds with the harvested cards (

q) August 15, 2010 they returned back to same location, obtained identity information but again were unable to access any funds with those fraudulent cards (

r) August 20 & 21, 2010 they again tried to access funds at the CIBC branch but were unsuccessful The total loss as a result of all of the offences was $98,570.28. CROWN POSITION [ 27 ] The Crown has advised that this accused has no prior criminal record. [ 28 ] He has been in custody since his arrest at the Winnipeg International Airport on September 24, 2010 and although he was initially granted bail, he did not manage to leave the Provincial Remand Centre prior to his second arrest that led to the additional charges. As of today he has now been in 414 days for a pre-trial custody period of 14 months.

As these offences occurred after the Criminal Code amendments dealing with the articulation of time in custody, he is to be credited on a 1:1 basis and that time deducted from any sentence to be imposed. [ 29 ] The Crown outlined a series of aggravating factors for this court’s consideration including s. 718(a)(iv) which is a statutory aggravating factor. [ 30 ] In this case the Crown suggests that the accused was acting as a willing participant in the fraud and his moral culpability should be considered high.

The paramount principles of sentencing for these types of offences are those of denunciation and deterrence, when balanced ought to lead the court to consider a period of incarceration totalling 3.5 years less his time in pre-trial custody, as the appropriate disposition. [ 31 ] There should also be a stand-alone restitution order for $4,060.74 to the TD Bank and one for $47,254.77 in the name of the CIBC. This latter figure is half of the amount owing as there is a co-accused who is being sought by police.

DEFENCE POSITION [ 32 ] Counsel for the accused points out that the accused is 27 years of age and was born in Sri Lanka during a time of civil warfare. At some point he was asked to join the Tamils in the civil war but chose not to prior to immigrating to Canada in 2002. Since here he has worked many jobs in an effort to support his family in Sri Lanka while working towards sponsoring them to Canada. [ 33 ] With respect to the offences before the court, I am told the accused became involved through a friend named Vinothan.

Through this person he was introduced to others and was made aware that they had been involved in this type of activity for years. [ 34 ] Counsel suggests that his role in this group was at the bottom of the criminal pyramid. In fact, counsel suggests that much of the accused’s involvement was as a party given he lacks any formal training in computers. For his involvement, the accused had his travel expenses covered and anticipated being paid $3,000.00 at the end of the trip.

To date, he has received no money from the group. [ 35 ] Since being incarcerated this accused has completed a few programs and currently works in the canteen. [ 36 ] As for the appropriate sentence, counsel for the accused suggests that 3.5 years is out of the range for this type of offence.

Counsel suggests that the case law seems to support a range of 15 – 24 months as the appropriate range and given the time the accused has spent in custody, it is suggested that the lower end of the range is appropriate based on the following mitigating factors: • No prior criminal record • His strides since he has been in custody • His remorse • The fact he has been attacked by other inmates while in custody • He is at the lowest end of the criminal chain and was not the operating mind for this crime • Finally that he has had to spend some time in 23.5 hour segregation in the institution [ 37 ] If any further time is to be considered, counsel suggests that the court consider the availability of the conditional sentence regime given the mitigating factors noted. [ 38 ] Whatever term is imposed, it should be followed by three years of probation with a restitution order. [ 39 ] A further factor raised for consideration by counsel for the accused is that of immigration.

Because of the nature of this accused’s legal status in Canada, if he were to be sentenced to a period of 2 years or more, he could not appeal any deportation order that may be sought. A sentence imposed of less than two years leaves open an appeal by the accused should deportation be sought. PRESENTENCE REPORT [ 40 ] A pre-sentence report was completed on August 4, 2011 and has been filed as Exhibit S6 in this proceeding. The report itself is fairly lengthy and I have taken the opportunity to review it in detail. [ 41 ] The accused himself was born in Sri Lanka and came to Canada on his own in May 2002.

He remained in this country on his own until he was able to sponsor his parents and younger brother who arrived in Canada in November 2010. The family, I am told, all reside together in Scarborough, Ontario. [ 42 ] It was due to the civil war in Sri Lanka that led to this accused initially separating from his family. At a time that he was being coerced to join one of the fighting groups, his father arranged for him to be sent to the capital city so he may apply for refugee status here in Canada.

There he remained for about two years before he was able to enter Canada as a refugee. [ 43 ] Although he did initially attend school upon arriving in Canada, the accused soon dropped out and began to work. Over the years he has worked in many different occupations with his last job being at the York Region Building Service where he was employed as a full-time cleaner from 2006 – 2010 before becoming involved in the offences now before the court. [ 44 ] The accused is engaged, having met his fiancé about 8 years prior. They began to date about 5 years ago and became engaged in December 2009.

She is aware of this accused’s criminal behaviour and has travelled to Winnipeg on three occasions to visit with him at the Headingley Correctional Institute. She has indicated that she will wait for the accused to conclude his legal involvement at which time she anticipates them being married. [ 45 ] In the pre-sentence report the accused does speak of the offences and indicates that a friend of his introduced him to five individuals. The accused was invited to come to Calgary for a vacation and denied any prior intent to commit criminal offences.

Once there he was aware of what was happening and found his level of involvement increased. [ 46 ] In this report the accused claims to have acted as a lookout as others placed the scanner on machines. That is not borne out by the surveillance photos obtained that show the accused actively involved in the overlay being applied. [ 47 ] He did acknowledge going to Winnipeg, Saskatoon and Edmonton before returning back to Toronto as the scanner was not working.

He then left Ontario a second time and came to Winnipeg in September 2010. [ 48 ] According to the author of the report he suggests that the accused minimizes his actions by blaming his negative peers for his involvement in the offences. He has been assessed as a medium risk to reoffend and there is a real concern expressed as to the accused’s choice of friends. VICTIM IMPACT STATEMENTS [ 49 ] Although somewhat unusual, the institutions affected by this accused’s actions have filed victim impact statements.

In addition, one individual affected by her account being accessed also filed a statement giving a firsthand account as to the impact the accused’s actions had on her family.

CIBC [ 50 ] Patrick Moyston is the Director of Debit Card Investigations for the CIBC. I am told that they have in excess of 100 bank branches throughout Canada and more about 4000 ATM’s. [ 51 ] The CIBC was victimized in the millions of dollars in 2009 through skimmed or compromised customer cards. That type of loss has been experienced by the other banks in Canada and those losses have increased exponentially as that term was used by Mr.

Moyston. [ 52 ] CIBC is continually trying to upgrade software and protective card reading devices at a cost that is in the millions of dollars annually to combat this type of fraud. Unfortunately this appears to be a losing battle as criminals in general have been able to stay one step ahead of the technology that is implemented. [ 53 ] When a fraud is located, all of the CIBC cards used during the time period in question must be blocked.

This is an immense inconvenience for customers as they must either wait for a new card to be issued or take time out to attend their branch to have the PIN reset. [ 54 ] The overarching concern is that with such breaches increasing in frequency, customers become frustrated and may lose faith in the institution itself. The end result is that customers may switch banking institutions. INTERACT ASSOCIATION [ 55 ] Robert Fodor is the Vice-President of Fraud Management for the Interact Association.

That group accounts for millions of ABM and payment transactions (Point of Sale transactions) on a daily basis. [ 56 ] In 2008 there were 21.5 million users of Interac Direct Payment each month which resulted in a total of 3.7 billion POS transactions.

In addition, cardholders made withdrawals from banks other than their own on some 257,000,000 occasions. [ 57 ] There are great efforts made to make these transactions secure through identifying threats and vulnerabilities at Automated Banking Machines and POS locations. [ 58 ] Skimming or the unauthorized capture of security data on the magnetic stripe of the bank card has been developed by the criminals.

Through the capture of the PIN numbers criminals are able to manufacture a counterfeit card and access the card holders back account. [ 59 ] As noted earlier, once a skimming incident is discovered, the exposed cards are cancelled and the cardholder is notified by the bank. [ 60 ] In terms of dollars lost as a result of debit card fraud from skimming it was noted to be $44,000,000 in 2003, $60,000,000 in 2004, $70,000,000 in 2005, $95,000,000 in 2006, $107,000,000 in 2007 with a slight decrease to $104,000,000 in 2008.

The corresponding number of exploited cards during this time is as follows: 29,000 in 2003, 49,000 in 2004, 72,000 in 2005, 119,000 in 2006, 159,000 in 2007 and 148,000 in 2008. [ 61 ] Debit card fraud threatens cardholder confidence in the use of modern banking technology and unfortunately we see that the criminals often share the success of their schemes with other like groups on various bulletin boards. This type of crime is well organized and international in scope.

TD BANK GROUP [ 62 ] Charlene Mann is the senior investigator of National Debit and Credit Card Investigations for the Toronto-Dominion (TD) Bank Group. Within Canada, TD has in excess of 1100 branches and over 2700 ATM’s for their customer use. [ 63 ] In 2010 the TD Bank suffered losses in the millions of dollars as a result of debit card fraud. The issue of loss as been increasing from year to year and that has been experienced by all of the financial institutions.

With the amount of losses climbing each year, there has also been an increase in skimming incidents yearly. [ 64 ] TD Bank has spent large amounts of money to upgrade software and the like but has found that criminals have managed to remain one step ahead of them. [ 65 ] As was noted earlier, when a fraud has been detected, TD Bank must block all of the cards used within the specified time period. That often captures many cards that have not been compromised resulting in significant frustration from those customers. MADELINE DUCHARME [ 66 ] Ms.

Ducharme is a member of the public who had her bank account compromised through this skimming operation. The resulting loss of her money was very upsetting. Despite not doing anything to have caused the fraud to have occurred her family blamed her for not having any money. [ 67 ] The loss suffered was the entirety of her pay cheque which took months for her to recover. The account itself was set up to automatically pay bills as they became due and those did not occur because of the fraud. [ 68 ] As a single parent she had a great deal of difficulty in feeding her child while this matter remained outstanding.

CREDIT CARD FRAUD REPORT [ 69 ] Detective Thompson of the Winnipeg Police Service prepared a detailed report on the issue of banking fraud in which he has identified a substantial increase in this type of offence in Winnipeg over the last three years. The Winnipeg Police Service has seen interprovincial criminal groups have come from the larger cities to many of the smaller capital cities in Western Canada. [ 70 ] Police have noted that the harvesting of credit card or debit card data is lucrative and many people arrested are often linked to similar offences in other cities.

These nomadic groups tend to be based out of Toronto, Montreal and Vancouver and are prolific in their ability to compromise POS terminals and ATM machines. [ 71 ] Since 2009 over 50 known ATM installations have been identified and those have been linked to four separate groups. In addition there have been over 30 known POS compromises since August 2009. The Commercial Crime unit of the Winnipeg Police Service estimates the POS compromises have losses that averaged $200,000 – $250,000 per terminal. [ 72 ] Exhibit S8 is a report from the Canadian Bankers Association showing credit card and Interac losses for 2010.

A review of that report shows the staggering losses by the various financial institutions. LETTER OF REFERENCE [ 73 ] Tharchika Thavarajah is the fiancé of the accused and states in her letter that she has known him for 8 years as of August 22, 2011. She acknowledges knowing that the accused is facing charges for fraud and suggests he regrets his actions. It is her stated intention to await his release from prison and do what she can to ensure this does not occur again.

She believes he has shown good behaviour while in custody and is learning skills that could help him once he is released from custody. [ 74 ] Kokulan Kanagaratnam also penned a letter that was filed as an exhibit in this sentencing. He indicates that he has had time to think while he has been incarcerated and is sickened by what he has done. He speaks of his experience while incarcerated and the difficulties he has had in the institution. [ 75 ] The accused states that he regrets what he has done and was grateful when he got caught.

He expresses that he fully understands the severity of the crimes and the impact it has had on so many people’s lives. [ 76 ] In addition to this letter the accused submitted documentation confirming that he has completed the Free Your Mind-Thinking Errors Program within the institution on August 12, 2011. In addition he has participated in the following programs: Changing Habits (March 15, 2011); Fitness and Nutrition workshop (April 10, 2011), and Recognizing Abusive relationships (May 11, 2011).

CASE LAW [ 77 ] Both counsel submitted a number of cases to support their position as to the appropriate sentence to be imposed. In addition to the Crown Case Book that is bound, the following additional cases were provided: • R. v. Singh [2006] A.J. No. 686 (PC) • R. v. Naqvi [2005] A.B.P.C. 339 (P.C) • R. v. Mayer [2006} A.B.C.A. 149 (C.A.) • R. v. Sandranathan

(2007) ONCJ 261 • R. v. Sritharan

(2009) ONCJ 563 • R. v. Sagoo

(2010) ABCA 29 (CA) • R. v. Arganda

(2011) MBCA 24 (CA) • R. v. Pechterski,

(2007) ONCJ 533 • R. v. Coman

(2004) ABOC 18 )PC) • R. v. Onose

(2004) ABOC 44 (PC) [ 78 ] I have taken the opportunity to read and consider each of the cases submitted by counsel. In addition, I have also considered the decision in R. v. Djambazoy [2011] B.C.J. No. 1854 . ANALYSIS [ 79 ] Courts, when determining the appropriate sentence to be imposed are guided by s. 718 of the Criminal Code which reads as follows: “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 acknowledgement of the harm done to victims and to the community.” [ 80 ]

Section 718.1 indicates that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 81 ]

Section 718.2 directs the court to consider other factors when determining the fit sentence including both aggravating and mitigating circumstances. [ 82 ] The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)). [ 83 ] As was conceded by counsel for the accused, this court has to consider the statutory aggravating factor under s. 718.2(iv) which deals with scenarios where the offence was committed for the benefit of, at the direction of or in association with a criminal organization. [ 84 ] A review of the facts shows that there are a number of aggravating factors and they are as follows:

(1) The skimming operation involved a number of people of which this accused was at a minimum a party and often an active participant as was observed through the surveillance photos.

(2) There was a high degree of planning and sophistication in these offences. This group had to set up the overlays and monitor them for extended periods of time. They would then have to retrieve them for use at a later time.

(3) These offences were done with deliberation and foresight. This group was mobile and travelled from city to city committing offences. In fact there is no other reason put forth for travel to these cities other than to commit criminal offences.

(4) Although it is not clear what has happened to the large amount funds stolen, it is clear that this accused was benefitting personally while they travelled and was expecting a final payout at the conclusion of the scam.

(5) On this latter point there has been no recovery of any of the funds stolen.

(6) The total loss was nearly $100,000 with the potential for loss far greater.

(7) Given the number of cards harvested, it is safe to conclude that there are multiple victims.

(8) These offences spanned three provinces.

(9) The use of police resources in this investigation appear to be extensive given the nature of the investigation including involvement in out of province offences.

(10) The accused did not stop on his own. It is clear that at some point they had returned to Ontario from out west before again coming to Winnipeg to continue the card skimming. There was nothing to indicate that this accused would have stopped on his own volition. In fact the accused has already made arrangement to have the skimming equipment shipped to his home address, presumably to be utilized again.

(11) There is nothing contrary to say that the offence was committed for nothing more than greed. [ 85 ] In mitigation I note the following: (

a) Accused has no prior criminal record. (

b) Accused has waived his right to a trial and pled guilty, which is a sign of remorse. (

c) Counsel suggests the accused has made strides while in custody. [ 86 ] A review of the case law filed by both counsel supports a consistent theme that the primary principles of sentencing for this court to consider are those of denunciation and deterrence. The basis of this would seem to stem from the fact that these types of offences are seen as a direct attack on the Canadian economy. [ 87 ] Mr. Justice Marshall in the case of R. v. Lee

(1992) N.J. 354 (C.A.) highlighted the concern to be addressed as follows: “The credit card system affords a very important medium of exchange in contemporary society and it forms an integral part of its monetary structures. Any organized attack upon its integrity serves to undermine the economy of a country.”

[ 88 ] That concern was at the forefront in the 1995 Alberta Provincial Court case of R. v.

Vuong (Tab 2 of Crown case book) where the court stated the following at paragraph 5 of this very short decision: “I am satisfied that due to the gravity of the offence and the fact that the use of counterfeit credit cards has become a very serious problem in this country and indeed worldwide, and that people, when caught with these cards and when caught promoting the use of these cards which results in millions and millions of dollars in losses to the financial institutions annually, that those people must be meted out sentences that emphasize the deterrent aspect of sentencing.” [ 89 ] In an unreported decision on October 24, 2001, the Manitoba Provincial Court in R. v.

Li and Feng (Tab 3, page 13) commented on the prevalence of this type of offence: “...the fact that the incidents of this type of crime is increasing. It’s increasing throughout the country. The evidence in the exhibits reveal that counterfeit credit card frauds have, as some of the cases I think have pointed out, reach grave proportions. The annual losses are in the multi-millions of dollars.

The incidence and prevalence of this type of crime reinforce the need to ensure that my sentence realizes, as I say, its denunciatory and deterrent objectives.” [ 90 ] Contained within the Victim Impact Statements filed by the Crown and the Canadian Banker Report Exhibit is support for the fact that this type of offence has increased in terms of losses to financial institutions. Between the years 2003 and 2008 there was an increase in the number of bank cards that were exploited as well as an increase in the amount of losses experienced by the financial institutions.

In fact the only time there appears to a decrease in the losses is from 2009 [$142,000,000] to 2010 [$119,000,000], but the loss expressed is still a staggering amount. [ 91 ] The Alberta Court of Appeal in the case of R. v. Sagoo

(2010) ABCA 29 commented at paragraph 23 that the appropriate range of sentences for these types of offences appears to be 15 – 24 months. [ 92 ] That statement is supported by most of the cases that have been filed by each counsel. [ 93 ] What is interesting is that despite the losses being experienced by the financial institutions multiplying at an alarming level, the courts have not revisited what one could call the normal range of sentence in order to emphasize the principles of deterrence and denunciation. [ 94 ] However, the case at bar does have a notable distinguishing factor from the cases filed for this court to consider.

In this case we have an individual who has been arrested on and pled guilty to a string of offences that were committed in three different provinces. [ 95 ] This case is also an indicator of the vast expanse of this type of offence and a look inside as to how these nomadic criminal groups may be operating. That is they leave their home base and go on the road, for a lack of better word, to make money and quickly leave that location before being detected, located and arrested.

It is easy to see the difficulty law enforcement would have in identifying an individual in a surveillance photo if that person does not live in the community nor have family of friends at that location.

That is the scenario in this case, that but for an astute civilian and a quick investigation by the Winnipeg Police Service, this accused may have avoided arrest. [ 96 ] This view into how these types of criminal groups operate is something that the courts should consider when determining the fit and appropriate sentence. [ 97 ] The court must still consider this particular accused and his personal circumstances in that determination. In that regard, I have no difficulty concluding that the moral culpability of this accused is high.

It is apparent that although he may not have profited to a significant degree from the offences, he was an integral part of the operation as is evident from the surveillance images provided to counsel. [ 98 ] When I examine the aggravating factors I am struck at the degree of sophistication and organization that was evident in the offences committed. The ability of this accused and his co-accused to access large amounts of funds in a relatively short time period is cause for concern. The idea of going on a trip through various provinces with the sole purpose of committing the offences is appalling.

As can be seen from the statistics filed, this activity costs Canadians in general a large amount of time and money. [ 99 ] I have considered the decision of R. v. Djambazov , [2011] B.C.J. No. 1854 and note the court in that case had to consider many of the same issues now before this court.

Based on the factual circumstances before this court, the sentence to be imposed has to appropriately address the paramount considerations of denunciation and deterrence. [ 100 ] In my view, upon a consideration of the facts along with the personal circumstances of this accused, I am of the view that a federal sentence is the fit and appropriate disposition.

But for the lack of a prior criminal record and acceptance of responsibility that is exemplified by his guilty pleas, I would have considered a sentence in excess of the two years that I do find to be the fit sentence. [ 101 ] With that determination, I am left to consider the issue of immigration that was commented upon by counsel for the accused during his submissions.

He noted for the court that the imposition of a penitentiary sentence will prevent the accused any opportunity to appeal an order of deportation that may flow from these convictions. [ 102 ] In that regard, given the sentence I have determined, I am mindful of the principle of proportionality that was discussed by the Manitoba Court of Appeal in the case of R. v. Arganda , [2011] M.J. No. 233 . [ 103 ] That was a case where the court originally sentenced the accused to a two year period of incarceration which he had served.

No appeal was brought to that sentence and it was only at a later point in time that the impact of the federal sentence imposed was discovered by the accused during immigration proceedings. An appeal was subsequently filed, well after the time limits proscribed had expired.

[ 104 ] It is a well accepted principle that immigration is a factor to be considered in any sentence hearing and Mr. Justice MacInness articulated and examined those factors that are relevant. [ 105 ] Based on the application of those factors identified by Mr.

Justice MacInness, I am of the view that a global sentence of two years less a day would not distort the message intended for this accused or others who may be inclined to commit similar types of offences. [ 106 ] Although I appreciate that this now brings the sentence within the provincial sphere I do not intend to address the issue of the appropriateness of a conditional sentence to any great length as it is only through the application of the principle of proportionality that this arises. [ 107 ] Had I determined that a provincial sentence was appropriate at first instance I would have concluded that, although appropriate in some case, in this case a conditional sentence would be inconsistent with the fundamental principles of sentencing.

The comments of Judge Joyal, as he then was, in the October 24, 2001 unreported case of R. v. Li at page 14 are apt on this issue: “The required denunciatory deterrent message risks being somewhat blunted if the sentence imposed does not carry the full weight of societys condemnation of the offenders conduct.

I did not believe that such an expression of society’s condemnation would result for these crimes if there was an imposition of a conditional sentence.” [ 108 ] Given the pre-trial custody served, the sentence will be reflected as ten months less a day on each offence going forward that will be served concurrent ( R. v. Taylor

(2010) MBCA 103) to one another with the addition of time in custody to be noted as fourteen months on each count. [ 109 ] That period of incarceration will be followed by thirty-six months of supervised probation.

In addition to the compulsory conditions, the following optional conditions shall apply: • The accused shall report to probation services within 48 hours of his release from custody and thereafter as directed and in the manner directed. • Upon his first contact with probation services the accused shall provide his address of residency. • The accused shall remain within the province of his residence unless he receives written permission to go outside that jurisdiction from either the court or his probation officer. • The accused shall attend to, participate in and complete any counselling or programming that he is directed to so by his probation officer. [ 110 ] There will be two stand alone restitution orders; one payable to the Toronto Dominion Bank in the amount of $4,060.74 and second payable to the Canadian Imperial Bank of Commerce in the amount of $47,254.77.

Crown counsel shall provide the appropriate forms to the court in this regard. [ 111 ] Given the circumstances of this accused, along with the fact he will be serving a further period of incarceration, all costs and surcharges will be waived. [ 112 ] All items seized as a result of the arrest of the accused shall be ordered forfeited. [ 113 ] I trust this fully addresses the necessary sentencing issues, however I would invite counsel to appear before me should any issue remain unaddressed. Original signed by: KELLY K. MOAR, P.J.