HIS MAJESTY THE KING – v. –, 2023 NBKB 232

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Yassin Choukri 2023 NBKB 232 FCR-13-2022 BETWEEN: HIS MAJESTY THE KING – and – YASSIN CHOUKRI DECISION – SENTENCING BEFORE: Mr. Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: December 8, 2023

DATE OF DECISION: December 19, 2023 (oral) APPEARANCES: Vicki Gina Doucette, for the Crown Gilles Lemieux, for the accused [TRANSLATION] Dysart, J. (orally) INTRODUCTION [ 1 ] On September 29, 2023, Yassin Choukri pleaded guilty to one count, i.e., of having stolen the total sum of $481,148 from his clients, in violation of subparagraph 334 (a)(

i) of the Criminal Code . [ 2 ] A sentencing hearing took place on December 8, 2023. The Court reserved its decision until today. [ 3 ] The Court will now render its decision on Mr. Choukri’s sentence. FACTS [ 4 ] The facts are not in dispute. [ 5 ] Mr. Choukri was a lawyer by profession. At the beginning of his career, he worked in private practice. He then worked as a Crown Prosecutor, prosecuting under the Criminal Code of Canada . Mr. Choukri later served as Deputy Minister of Justice and Deputy Attorney General of the Province of New Brunswick. [ 6 ] Mr.

Choukri then returned to private practice. [ 7 ] It was during this time that Mr. Choukri developed a serious gambling addiction problem and suffered considerable financial losses. [ 8 ] Between September 12, 2014, and September 29, 2016, Mr. Choukri was the sole owner of the law firm Yassin Choukri, Q.C., Professional Corporation (the “Law Firm”), located in Fredericton, New Brunswick. [ 9 ] Mr. Choukri was a member of the Law Society of New Brunswick. [ 10 ] Mr. Choukri’s Law Firm held, among other things, a trust account, a business account, and a VISA credit card, all with ScotiaBank. Mr.

Choukri was the sole signing officer of these three ScotiaBank accounts. [ 11 ] During the above-mentioned period, several clients retained Mr. Choukri’s Law Firm for their legal representation.

[ 12 ] Between September 12, 2014, and September 29, 2016, the Law Firm received and deposited the following amounts in the trust account: • $11,500 on behalf of Milemore Holdings Ltd.; • $250,000 on behalf of The Economical Insurance Group; • $918 on behalf of George Bunting; • $25,000 on behalf of Jean-Marc Bélanger; • $112,500 on behalf of Sylvie Perreault; • $31,790 on behalf of Albina Stuckless; • $5,000 on behalf of Dorothy McNaughton; and • $44,440 on behalf of Allan and Lucilla Wilson. [ 13 ] In each of these cases, the amounts paid into the trust account, totalling $481,148, belonged to the Law Firm’s clients.

None of the above-mentioned clients received their funds. [ 14 ] Instead of paying the above-mentioned amounts to the clients of the Law Firm, Mr. Choukri used the funds for his own benefit. [ 15 ] Mr. Choukri gradually took out the money belonging to clients of the Law Firm in various increments of thousands of dollars to repay important charges on his Scotiabank VISA credit card. As his gambling addiction grew worse, Mr. Choukri used funds held in trust and replaced these funds as he received additional cash in hand. [ 16 ] In September 2016, the financial institution informed Mr.

Choukri that his trust account was overdrawn. In an attempt to cover the shortfall created by the account overdraft, Mr. Choukri borrowed the maximum amount of funds available and deposited them into his trust account. However, the amount was still insufficient. [ 17 ] The clients’ money was used to repay cash advances taken mainly at Casino New Brunswick. [ 18 ] On or about September 27, 2016, Mr.

Choukri realized that two checks drawn from the trust account and delivered to two clients of the Law Firm had been returned for insufficient funds, indicating that his trust account was overdrawn. [ 19 ] On or about September 29, 2016, Mr. Choukri suddenly left the Fredericton area without notice to his clients or others. Mr. Choukri was hopeless at the time and was considering suicide. [ 20 ] Mr. Choukri was found on or about October 2016 in Mississauga, Ontario, following a mental health check. [ 21 ] In Ontario, Mr. Choukri had started a program for people addicted to gambling.

He finally got his gambling addiction under control. [ 22 ] Mr. Choukri is the subject of several judgments. Among others, three judgments are registered against him for the following amounts: • Scotiabank: $237,889.52 • Canada Law Financing: $228,129.07 • Law Society of New Brunswick: 275,047.29

[ 23 ] The three judgments referred to above, totalling $741,055.88, are directly related to Mr. Choukri’s actions that led to these criminal charges. [ 24 ] Several of the Law Firm’s clients filed a complaint with the Law Society of New Brunswick regarding Mr. Choukri’s actions. The Law Society of New Brunswick had to conduct a detailed investigation into Mr. Choukri’s actions, including a forensic audit of his practice; compensate his clients for their losses; and hold a disciplinary hearing for Mr. Choukri. [ 25 ] Ultimately, Mr.

Choukri did not participate in the disciplinary hearing and was disbarred from the Law Society of New Brunswick. [ 26 ] The above-mentioned clients have been compensated by the Law Society of New Brunswick for the losses they suffered at the hands of Mr. Choukri, except Economical Insurance Group. The latter had applied to the Law Society for compensation in the amount of $250,000, which was not approved by the committee making recommendations to the Council.

And, subsequently, Economical did not appear at a hearing before the Compensation Fund Committee. [ 27 ] Economical never initiated civil proceedings to recover its losses, neither before nor after receiving the decision of the Compensation Fund Committee. [ 28 ] Although it did not actively seek to recover its losses from the Law Society or to bring an action against Mr. Choukri, Economical Insurance Group seeks compensation for the $250,000 that were stolen. [ 29 ] At the hearing, the Crown also submitted evidence that, at one point, Mr. Choukri owed $92,588.31 to the Minister of Revenue.

THE OFFENDER [ 30 ] Mr. Choukri has no criminal history. [ 31 ] The Court received a Pre-Sentence Report dated December 4, 2023. According to this report, Mr. Choukri is currently 56 years old. He lives in Moncton with his mother, to whom he remains close. He also has a good relationship with his brother. Mr. Choukri describes a normal childhood in Moncton, even though he had no contact with his father. [ 32 ] Mr. Choukri has been married and divorced twice. He has no relationship with his ex-spouses.

He has two children from his first marriage and has recently renewed a relationship with one of his children. [ 33 ] Mr. Choukri has not worked since he left Ontario to face these charges. He is receiving a pension. [ 34 ] According to Mr. Choukri, he has overcome his gambling problems. He also acknowledges having abused alcohol during the period of his gambling addiction but says that is no longer an issue. [ 35 ] According to the report, Mr. Choukri does not think that he can pay a compensation order.

VICTIM IMPACT STATEMENTS [ 36 ] The Court received two Victim Impact Statements: the first from Marco Bélanger on behalf of his father, Jean-Marc Bélanger; and a second one that was read in the courtroom by Shirley McLean, K.C., on behalf of the Law Society of New Brunswick. [ 37 ] For his part, Mr. Bélanger states that his father is deceased. In his statement, he seems to be focusing on an injury to his father’s leg, which, according to the court, was the reason his father retained Mr. Choukri’s services. However, the evidence shows that

Jean-Marc Bélanger was compensated by the Law Society. [ 38 ] In her statement, Ms. McLean explains how the Law Society became aware of Mr. Choukri’s disappearance and how it had to appoint a trustee to oversee his files and assist his clients. She describes how the Law Society then learned of the existence of financial irregularities regarding Mr. Choukri’s trust account and what appeared to be missing funds. [ 39 ] Ms. McLean states that the Law Society then hired investigative forensic accountants to review the accounts and determine exactly what was missing and which clients were impacted.

They confirmed the amounts that are the subject of Mr. Choukri’s guilty plea, which amount to $481,148, as well as the names of these clients, as previously mentioned. [ 40 ] Ms. McLean then explained how the Law Society compensated these clients for the stolen funds from its compensation fund, with the exception of Economical Insurance Group. The amounts paid to Mr. Choukri’s clients by the Law Society of New Brunswick total $232,119.53. [ 41 ] In her statement, Ms. McLean also describes the various steps taken by the Law Society to investigate Mr. Choukri’s thefts from his clients and to eventually disbar him.

She alleges that Mr. Choukri’s dishonest conduct and the breach of his clients’ trust have brought the legal profession of this province into disrepute and have resulted in a great deal of effort and expenses for the Law Society of New Brunswick. [ 42 ] Although he did not prepare a written statement, one of Mr. Choukri’s former clients, a Larry Fullerton, attended the hearing and was given the opportunity to speak. His company, Milemore Holdings Ltd., was represented by Mr. Choukri. Mr. Fullerton described Mr. Choukri as a good lawyer and a friend. He was of the opinion that Mr.

Choukri had been a key figure in this province and that he had lost everything because of his actions. Mr. Fullerton forgave Mr. Choukri and asked the Court to be lenient. OFFENDER’S SUBMISSIONS [ 43 ] Mr. Choukri was offered the opportunity to address the Court and the victims of his criminal acts and to say what he wanted before being sentenced. [ 44 ] Mr.

Choukri has apologized to the people he harmed, including his victims, who are all former clients, as well as to the clients he abandoned when he left New Brunswick and to the lawyers from the province who had to compensate the victims for his crimes. [ 45 ] He took responsibility for his actions and pleaded guilty. He acknowledges that what he did was dishonest and that he violated the trust that his clients had placed in him. [ 46 ] He made it clear that there were no excuses for what he had done. However, he wanted to explain that his behaviour was the result of his addiction to gambling.

He explained that he was in denial and that he believed that he could win back the money he had lost and replace the money he had stolen. He is ashamed of what he did. [ 47 ] Mr. Choukri explained that he left New Brunswick because he needed to work on himself and deal with his addiction. He felt that he needed to take back control of his life. While living in Ontario, he managed to control his addiction and find work. [ 48 ] He wants to serve his sentence and, with any luck, find work and start rebuilding his life.

He would like to repay his financial debt, but he does not know if he will ever be able to because of the amount of his debts. LETTER OF SUPPORT [ 49 ] The defence presented a letter prepared by Mr. Fred Abu-Alloul, plant manager at Oakgroup Automotive Corporation in Mississauga, Ontario. In the letter dated November 3, 2020, Mr. Abu-Alloul explains that he first met Mr. Choukri at the end of 2016, when Mr. Choukri started working in their factory, where he assembled automotive seat components.

[ 50 ] According to Mr. Abu-Alloul, Mr. Choukri was a very hard worker and quickly rose through the ranks, being promoted to quality inspector, then to quality technician and finally to liaison officer with the company’s customers. He described Mr. Choukri as one of his most valued employees. PRINCIPLES APPLICABLE TO SENTENCING [ 51 ] A person convicted of theft over $5,000 may, on conviction, be sentenced to imprisonment for up to 10 years. [ 52 ] Sections 718 , 718.1 and 718.2 of the Criminal Code set out the principles that the Court must consider when imposing sentences.

These sections of the Criminal Code require judges to consider a number of relevant factors and objectives, including: • to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; • to deter the offender and other persons from committing offences; • to separate offenders from society, where necessary; • to assist in rehabilitating offenders; • to provide reparations for harm done to victims or to the community; and • to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 53 ] Moreover, the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The sentence should be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender, and should respect the principle of parity of sentences, i.e., it should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. AGGRAVATING AND MITIGATING FACTORS [ 54 ] The most significant mitigating factor in this case is Mr. Choukri’s guilty plea. He takes responsibility for his actions and that plea also helps to avoid a trial that would have required considerable judicial resources.

Eight victims were also spared from having to testify about what they experienced during the commission of the offences, as were several professional witnesses and two investigative forensic accounting experts. [ 55 ] Mr. Choukri’s complete absence of a criminal record should also be considered as a mitigating factor, as well as his efforts to address his gambling addiction. [ 56 ] In contrast to the mitigating factors, Mr. Choukri was a lawyer with a great reputation: a former member of the Office [of the Attorney General] of New Brunswick and a Queen’s Counsel. His clients trusted him and he abused that trust.

By doing so, he also undermined the confidence of the public in lawyers in New Brunswick. Indeed, the members of the Law Society of New Brunswick have paid the price for his actions, both in terms of public opinion regarding the profession, and also in having to compensate his clients.

APPROPRIATE SENTENCE [ 57 ] In this case, the Crown and the Defence reached a settlement and made a joint submission on sentence: a sentence of imprisonment for a total of three years to be served in a penitentiary. [ 58 ] It should be mentioned that a judge was involved in reaching this settlement. [ 59 ] Generally, agreements crafted based on joint submissions are accepted and approved by trial judges.

A judge should accept a joint submission unless it brings the administration of justice into disrepute or is contrary to the public interest. [ 60 ] As Justice Moldaver, of the Supreme Court of Canada, stated in R. v. Anthony-Cook , 2016 SCC 43 , at paragraph 34 :

[…] Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would leadreasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolutiondiscussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold [...] [61] At paragraph 44 of the decision, Moldaver, J. reminded trial judges that lawyers, both for the Crown and the defence, are in thebest position to assess the particular circumstances of the case.

Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of jointsubmissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of boththe public and the accused […]. As a rule, they will be highly knowledgeable about the circumstances of the offender and the offenceand the strengths and weaknesses of their respective positions. The Crown is charged with representing the community’s interest inseeing that justice is done […].

Defence counsel is required to act in the accused’s best interests, which includes ensuring that theaccused’s plea is voluntary and informed […] And both counsel are bound professionally and ethically not to mislead the court […].

Inshort, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest […]. [62] With respect to the circumstances of this case, the Crown and the defence highlight several factors that must be considered andthat could have affected the outcome of a trial. [63] Firstly, the facts which are the subject of this offence date back seven to nine years, and we know that at least one witness hassince died. [64] Also, the trial was to take place at the end of the time limit prescribed by Jordan, and any unforeseen event could have delayedthe case beyond the reasonable time period to hear the case. [65] In order to determine whether the joint submission brings the administration of justice into disrepute, it should be compared withother decisions rendered in similar circumstances. [66] In R. v.

Stymiest, 2006 NBQB 129 , 2006 N.B.J. No. 141, the four accused had been convicted of multiple counts offraud and/or breach of trust. They received sentences between two and a half to five years in prison. [67] As for the accused Stymiest, he was serving as a Provincial Court judge during the commission of the fraud. The court found thathe showed no remorse.

The mitigating factors for this accused were the fact that he had no previous criminal record, he did a lot ofvolunteer work in the community, and he was a father. [68] With respect to the aggravating factors in the Stymiest case, it was noted that he had committed a breach of trust in two importantways: firstly, as chairman of the hospital’s Board of Trustees, and secondly, as a Provincial Court judge. At paragraph 90 of the decision,McNally, J. states that Mr.

Stymiest’s breach of trust committed in his position as a judge was a much more significant aggravatingcircumstance than the breach of trust committed by a lawyer. [69] The Stymiest trial was held over a period of four and a half months and the accused was found guilty by a jury at the conclusionof the trial. The dollar value of the frauds committed by him was assessed at $352,000.00 and he was sentenced to a term ofimprisonment of five years. [70] In R. v.

Bowes (J.M.), (NB CA), the Court of Appeal of New Brunswick set out certain guidelines on thesentencing range for offences committed by lawyers who abuse their positions of trust. In that case, Mr. Bowes, who practised law inMiramichi, pleaded guilty to eleven counts of stealing funds that clients had deposited in trust accounts. The total amount stolen was$885,000 – i.e., approximately twice the amount at issue in this case. The original sentence of five and a half years’ imprisonment wasreduced by the Court of Appeal to four and a half years. [71] In R. v. Davis, 2014 ABCA 115 , [2014] A.J.

No. 314, the Court of Appeal of Alberta allowed the Crown’s appeal withrespect to the sentence imposed for fraud and theft committed by a lawyer totalling $998,000. The Court of Appeal increased thesentence of imprisonment to four years, whereas the accused had been sentenced by the trial judge to a term of imprisonment oftwo years followed by two years’ probation.

[ 72 ] Finally, in R. v. Ament , [2006] M.J. No. 236 , the trial judge imposed a sentence of two years less a day on a lawyer who stole $55,000 spread over 88 transactions during a period of 44 months.

RESTITUTION CLAIM [ 73 ] Economical Insurance filled out a compensation form for the full amount of its loss, an amount that the Compensation Fund Committee had refused to grant him. [ 74 ] The Crown and the defence believe that Economical did not take any steps to recover its losses, whether by appearing before the Law Society’s Compensation Fund Committee or by bringing a civil lawsuit or instituting criminal proceedings against Mr. Choukri. [ 75 ] They also ask the Court to consider the precarious financial situation of Mr. Choukri, who has been the subject of judgments totalling approximately $750,000.

This situation, combined with the fact that he has not worked since 2020 and is living on a pension, suggests that he will not be able to pay a potential restitution order. [ 76 ] Therefore, the joint submission made by the parties does not include a restitution order, so the Court must decide whether to accept the joint submission or to refuse it on the basis it does not provide for restitution to Economical. [ 77 ] Ultimately, the question of whether to order restitution is a matter of discretion. [ 78 ] In my opinion, any justification for issuing a restitution order is not compelling enough in this case to warrant rejecting the joint submission which was negotiated by the Crown and the Defence with the assistance of a judge. [ 79 ] Considering all of the circumstances of this case, including the offender’s guilty plea, and recognizing that courts are generally required to accept joint submissions, unless they undermine public confidence in the administration of justice, I am satisfied that the joint submission in this case is both reasonable and in the public interest.

DISPOSITION [ 80 ] Mr. Choukri, please stand. [ 81 ] As you yourself have acknowledged, your offences have had serious consequences.

Your conduct was dishonest, it violated your professional obligations to your clients, and it undermined the reputation of your colleagues within the Law Society. [ 82 ] While this Court acknowledges that your actions were fuelled by your gambling addiction, that does not diminish the impact they have had on your victims. [ 83 ] Your guilty plea and acceptance of responsibility are important steps toward rehabilitation. [ 84 ] In all the circumstances of this case, and considering the sentences imposed in the Stymiest and Bowes decisions, I am satisfied that the joint submission is reasonable and must be accepted. [ 85 ] I therefore sentence you to three years’ imprisonment. [ 86 ] I would ask the sheriffs to take Mr.

Choukri into custody.

DATED at Moncton, N.B., this 19 th day of December 2023. _______________________________________ Robert M. Dysart Judge of the Court of King’s Bench of New Brunswick