R. v. Girdea, 2014 ONCJ 128

Counts 8, 9, 10 and 11 on Information No. 12 – T4644 [1] Count 10 on Information No. S12 – 1163 Citation: R. v. Girdea , 2014 ONCJ 128 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - LAURENTIU GIRDEA and PETRE MARTIN ISPAS Mr. T. Jacob for the Crown Mr. C. Raftery for Laurentiu Girdea Mr. M. Puskas for Petre Martin Ispas J.S.

NADEL, J.: Introduction [ 1 ] On November 22, 2013, Laurentiu Girdea and Petre Ispas pleaded guilty to five jointly committed omnibus frauds, namely: two counts of fraud over $5,000.00 perpetrated against the Meridian Credit Union, one count of fraud over $5,000.00 against the McMaster Credit Union and one count each of fraud under $5,000.00 against the CIBC and the Bank of Montreal.

The frauds were carried out in the Regional Municipality of Hamilton and in the Regional Municipality of Niagara. [ 2 ] These five counts were chosen to cover an extensive set of offences committed by Girdea and Ispas over an extended period of time that commenced on January 29, 2011 and continued through and to November 26, 2011 with respect to one of the Meridian fraud counts and through the period of August 28, 2011 to January 27, 2012 for the other four omnibus fraud counts.

This extensive set of offences included many scores of individual acts of criminality including, inter alia , possession of instruments intended for use in forging credit cards, (s. 342.1,) along with many scores of offences of fraudulent possession of identity information including counts contrary to s. 402.2, s. 342.01 and s. 342(3). [2] The Facts [ 3 ] The admitted facts were that, as a result of a complaint made by the loss prevention officer of the Meridian Credit Union to

policing services in Hamilton and the Regional Municipality of Niagara, police investigations into debit card information skimming was initiated. These inquiries revealed that personal identity information of individuals patronizing some of the ATMs at Meridian branches was being compromised by the two accused. They had affixed an overlay on the card reader machines which captured the debit card data of patrons using those ATMs. This device was augmented by a pinhole video camera which the two accused had also secretly installed. The pinhole video camera captured the security PIN used by these patrons.

The accused then returned to these compromised ATMs and retrieved the devices and cameras. [ 4 ] The captured data was used to make counterfeit debit cards that were then used to fraudulently make purchases and cash withdrawals at businesses in Hamilton and the Regional Municipality of Niagara. [ 5 ] Ultimately, the two accused were identified through video images taken of them at the ATMs in both communities. [ 6 ] The various credit unions and banks sustained the following losses: Meridian Credit Union in Niagara: $ 61,830.56 Meridian Credit Union in Hamilton: $ 12,330.67 CIBC: $ 259.94 McMaster Credit Union: $ 10,701.81 Bank of Montreal: $ 1,160.58 Total Losses: $ 86,283.56 Prior Records [ 7 ] Mr.

Ispas had no prior criminal record. Mr. Girdea received concurrent sentences of 60 days to be served conditionally for theft under $5,000.00 and resisting arrest imposed in Toronto, on December 12, 2005. The Submissions of the Crown [ 8 ] On behalf of the Crown, Mr.

Jacob submitted that a middle to upper reformatory sentence of actual incarceration ought to be imposed on each accused; i.e. a sentence of 15 to 18 months of incarceration. [3] The Crown takes that position notwithstanding the mitigating effect of these pleas of guilty and notwithstanding the substantial savings of time and expense occasioned by these guilty pleas. In his submissions Mr.

Jacob stressed that this was a sophisticated criminal enterprise and that while the Crown permitted the accused to enter guilty pleas to only five counts, they were “omnibus” counts chosen to represent the complete skein of criminal activities committed by the accused. The Defence Submissions Pre-sentence Reports [ 9 ] No pre-sentence reports were ordered as both defence counsel rejected the opportunity of having pre-sentence reports prepared. Petre Ispas [ 10 ] Mr. Puskas submitted that an appropriate sentence for Mr. Ispas would be a sentence of 12 months to be served conditionally.

This submission was predicated upon his reference to four cases [4] , which run a gamut of fact-patterns and biographies. Using the least and most severe of these sentences as bookends [5] , Mr. Puskas submitted that Mr. Ispas’ culpability fell somewhere in between. More significantly it is common ground between the parties that a conditional sentence is available and must be considered by the Court. [ 11 ] In support of his submissions, Mr.

Puskas filed two reference letters from community friends of the offender, a confirmation of Ispas’ employment as a cleaner, working for his wife’s company, and a letter of apology by Mr. Ispas. [ 12 ] By way of submissions, Mr. Puskas outlined Mr. Ispas’ background. He arrived in Canada as a landed immigrant hailing from Romania. He is now a Canadian citizen. In Romania he was a trained mechanic qualified to maintain sewing machines after graduating from the Romanian equivalent of a technical college. Upon his arrival in Canada in 2000 he quickly obtained work as a custodian.

He next obtained work driving for a landscaping company until 2003 and then became a truck driver. Later, he became a self-employed contractor for a building maintenance company but when that company lost its major client, the City of Hamilton, his wife began her own maintenance company and he has worked for it since 2012. They have two children, a son 24 who lives on his own and a daughter 22 still at home. [ 13 ] According to Mr. Puskas’ submissions, Mr. Ispas is not involved in the community. I took that submission to mean that Mr.

Ispas is not a member of any service, volunteer or community sports organizations. Nonetheless, Mr. Puskas submits that this is a non- violent offence and Mr.

Ispas has been at large in the community since his release, (on March 2, 2012 at Hamilton on charges from that city and on April 3, 2012 on counts out of the Regional Municipality of Niagara,) a period of not quite two years without any allegations of breach and without further charges being initiated. [6] Moreover, both defence counsel submit that the delay in bringing this matter to a conclusion by way of pleas of guilty was attributable to counsel and not to the accused given the number of counts and the two jurisdictions out of which those multiple counts originated. [ 14 ] Moreover, while Mr.

Puskas conceded the offences were motivated by greed in that Mr. Ispas was paid for his efforts in planting and removing the equipment needed to obtain the debit card information, he submitted that his gain was much less than the amounts obtained by the principals Mr. Ispas was working for. Finally, despite the technical sophistication of the devices used to steal the information required to effect the frauds, so far as Ispas was concerned, this was an unsophisticated crime given that the photo arrays at the ATMs took his picture leading to his inevitable identification and arrest.

[ 15 ] In conclusion Mr. Puskas submitted that Mr. Ispas has been chastened by his arrest and prosecution in that he has had the charges held in terrorem over him for a considerable period of time and he has been and remains quite anxious about these proceedings. Given the non-violent nature of these offences all the principles of sentencing can and should be met by a conditional period of incarceration. Those provisions were designed to deal with crimes of this sort and Mr. Ispas fits the usual model of those who have that kind of sentence imposed upon them and that is what ought to be imposed upon Mr. Ispas.

Laurentiu Girdea [ 16 ] On behalf of Mr. Girdea, Mr. Raftery urged the imposition of a conditional sentence of less than six months duration on the basis that any sentence of more than six months might have dire immigration consequences for Mr. Girdea, who, apparently, has no formal status in Canada. Further, in mitigation of these offences Mr. Raftery characterized his client as a mere foot-soldier being sent to the slaughter in this enterprise. In effect Mr. Raftery likens Mr. Girdea to being a pawn moved about the board by others. The intended thrust of that submission is a plea that Mr.

Girdea’s moral culpability is lessened which ought to moderate the sentence imposed. [ 17 ] By way of biography and background Mr. Raftery made the following submissions. Mr. Girdea is currently 41 and was an accountant in his native Romania. He was married between 2001 and 2003 but is now single and has no children. When he arrived in Canada, (the date of his arrival was not provided,) he worked in the granite business until he was laid off for a considerable period and he did not have recourse to any government money. The implication of that submission appears to be that Mr.

Girdea had been working under the table . [ 18 ] Mr. Raftery filed three reference letters on behalf of Mr. Girdea, which were collectively exhibited as No. 4. The first was a character reference letter under the hand of his parish priest, Father Lucian Puscariu, attesting to Mr. Girdea being, among other things, a religious and caring individual, and a coach to a Romanian community youth soccer team. Having knowledge of the allegations against Mr. Girdea, Father Puscariu is shocked by that behaviour and attributed it to a temporary misjudgment on Mr. Girdea’s part.

Given that the scheme was in operation from January 29, 2011 through and to January 27, 2012, it is unlikely Father Puscariu had complete details of the allegations. Two other letters written by law-abiding and productive friends of Mr. Girdea also attested to many positive character traits and talents that they saw Mr. Girdea exhibit. [ 19 ] In light of these references Mr. Raftery submitted that Mr. Girdea was himself “victimized” (sic) by some unscrupulous people who saw a chance to make a great deal of profit by sending these two accused men out to follow their instructions. In Mr. Raftery’s submission, Mr.

Girdea is not a sophisticated person, (despite training as an accountant,) but rather one who simply did what he was told by the higher ups of this scheme who remained safe and out of touch of the authorities. [ 20 ] In furtherance of this line of submission, Mr. Raftery sought to distinguish Mr. Girdea from the offender in Velupillai (cited at footnote 4 above,) on two bases. First, Velupillai was found to be at the command and control level of involvement in a not dissimilar fraudulent enterprise and second, given the presence of security cameras at ATMs, Mr.

Girdea was, it is submitted, inevitably going to be identified and prosecuted. Reiterating his submission, Mr. Raftery urges that Mr. Girdea is a low level operative who was bound to be apprehended and that Mr. Girdea would likely be expelled from Canada if any type of jail sentence of six months or more was imposed due to his lack of status in Canada.

Pre-sentence Custody [ 21 ] While both accused sustained some pre-sentence custody before being released on bail neither defence counsel was able to advise me of the number of days attributable to either offender because they were facing multiple informations from two different jurisdictions. Based upon my examination of the endorsements on the multiple informations and the release orders attached to them, Mr. Ispas has at least seven days of pre-sentence custody credit and Mr.

Girdea has 68 days of pre-sentence custody credit. [7] Discussion [ 22 ] The Crown concedes that conditional sentences could be imposed on each offender but takes the position that such a sentence would be unfit and should not be imposed in the circumstances of these crimes. Since the parties have provided me with several precedents to assist me in crafting a fit sentence I propose to provide a thumbnail sketch of each of them in chronological order [8] to demonstrate the range of facts and circumstances to which the principles must be applied in cases of this sort. [ 23 ] In R. v. Parkhomenko , [2006] O.J.

No. 3904 (OCJ) M. Ray J. granted a conditional discharge to a 24-year-old who pleaded guilty to three offences related to the creation of fraudulent credit cards. The Crown had sought a 12-month conditional sentence. There were several mitigating circumstances including: pleas of guilty, no loss, no proof that the offender was part of a sophisticated and well organized plan, onerous bail terms, nine days of pre-sentence custody credited as 18 days and substantial community supports and positive prospects for rehabilitation. As Mr.

Puskas acknowledged, Parkhomenko is easily distinguished. [ 24 ] Next in time is R. v. Pechterski , [2007] O.J. No. 4449 (OCJ) , a decision by M. Green J. granting a conditional sentence that bears careful consideration since it was upheld by the Court of Appeal. At [2008] O.J. No. 2656 , in a brief endorsement, the panel described Justice Green’s reasons for sentence as commendable and worthy of imitation; moreover, they were not persuaded that there was any basis to interfere.

While the losses caused by Girdea and Ispas are somewhat greater in this case, there are many parallels between Pechterski and this case. [ 25 ] Pechterski pleaded guilty to ten charges arising out of a “relatively sophisticated” (sic) scheme in which he was an active participant, a scheme that is similar to the scheme in which Girdea and Ispas took part. Pechterski’s scheme resulted in $53,300.00 of bank fraud losses. The Crown sought a nine to 12 month sentence of actual jail. Pechterski had no prior record and he forfeited the $17,620.00 found in his possession upon his arrest.

In addition he amassed a further $5,000.00 payment prior to sentence towards the approximately $26,000.00, (or one-half of the losses,) in restitution that Justice Green ascribed to Pechterski’s responsibility. Pechterski was the “front man” who most risked exposure by attending at the ATMs and not the “boss” of the scheme. He was sentenced on that basis. (Mr. Jacob did not contest the defence submissions to a similar effect before me.)

Pechterski spent five days in pre-sentence custody and provided proof of a full-time job as a truck driver. [26] Justice Green, at paragraphs [7] and [8] highlighted the impact this kind of crime has on individual account or card holders and on the institutions that issued those cards and accounts.[9] In my view, the anxiety about financial security and the subsequentinconvenience caused by a compromised bank card, which is easily inferred and well known by anyone who has had a card cancelleddue to crimes of this sort, should not be underestimated.

Justice Green also identified the magnitude of this type of commercial fraudand the consequent need to deter it so that imprisonment was obviously a necessary component of a fit sentence. The question waswhether it ought to be actual or conditional imprisonment. Given Mr.

Jacob’s concession that, fitness aside, a conditional sentence is notprecluded to Girdea and Ispas, I propose to précis Justice Green’s analysis of the fourth and deciding criterion that one must assess indetermining whether or not to impose a conditional sentence of imprisonment; viz, whether the imposition of a conditional sentencewould be consistent with the fundamental purpose and principles of sentencing. [27] In calculating a fit sentence as required by s. 718.1 Justice Green noted that none of the features statutorily designated asaggravating obtained in the case before him.

I note that they do not appear in this case either. Next, Justice Green noted theseveral mitigating features in Pechterski; namely: (

i) the presence of guilty pleas, which demonstrated an acceptance of responsibility,indicated remorse and resulted in a substantial reduction of public expense; (ii) that the principles moderating the sentencing of first offenders applied to Pechterski’s benefit[10],[11] ; and, (iii) that encouragement should be given to Pechterski’s efforts at makingrestitution during his period under sentence. [28] When Justice Green considered all of the foregoing in conjunction with the comments of the Supreme Court about conjoiningpunitive and restorative objectives where possible, (see paragraph [100] in R. v.

Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449 (S.C.C.)[12],) he determined that a conditional sentence of 12 months (with six months of house arrest) followed by 24 months onprobation, was a fit sentence. [29] Next in sequence is R. v. Velupillai, [2007] O.J. No. 5495 (OCJ) where, after a trial, D.J. Halikowski J. sentenced Velupillai to23 months in the reformatory for, inter alia, his role in a conspiracy to obtain personal information to be used to manufacture fraudulentcredit cards. Velupillai was a controlling mind of the enterprise.

He breached a trust, reposed in him as an employee of the pizza shop,by going in after hours to install a card reader and a pinhole camera. The losses incurred as a result were in the area of $40,000.00. [30] Velupillai had no prior record and was a recent immigrant to Canada with a good job. He spent 14 days in pre-sentence custodybefore being released on moderately restrictive terms of bail.

No pre-sentence report was sought by his defence counsel, who, likedefence counsel here, elected to make submissions as to sentence without that resource. [31] Halikowski J. imposed a sentence that was not tempered by the mitigating factor of a guilty plea.

He rejected the imposition of aconditional sentence as being too lenient to be a fit disposition since “… the nature of the crimes themselves, the low risk of detection bythe authorities and the almost limitless nature of the losses that could occur [required] a denunciatory sentence [to] sharply deter others of like mind who have made similar risk assessments …”[13] [32] Next in time is R. v. Hameed, [2008] O.J. No. 231 (C.A.), a brief judgment in which the appellant sought to appeal his sentencefor three counts of obtaining credit cards by fraud.

He was sentenced to one year imprisonment, two years’ probation, and ordered to payrestitution in the amount of $199,083. He argued that a conditional sentence of one year should have been imposed and that the amountof restitution he was ordered to pay is too high. Accepting for the purposes of the appeal that the trial judge erred in principle in hiscomments with respect to whether the appellant was truly remorseful for what he had done and in commenting on the ineffectiveness of aconditional sentence imposed in another case by a brother judge, the Court found the custodial portion of the sentence to be fit.

Moreover, they observed that on many occasions the Court had upheld jail sentences for large-scale commercial frauds. [33] In R. v. Kokoouline, [2009] O.J. No. 1174 (C.A.), the Court considered a sentence that amounted to the equivalent of five years. The Court found that sentence to be excessive even based upon all of the convictions imposed at trial, some of which were imposed inerror.

Assessing the matter afresh, after quashing some of the convictions and correcting an arithmetic error in the computation of pre-sentence custody credit, the Court imposed a sentence of two years commencing on the date of the release of the panel’s decision. Sincethe facts and circumstances of the appellant are not patently clear, the decision is of little assistance for these present purposes. [34] In the same year that Kokoouline was released, the Court of Appeal also decided R. v. Balendra, [2009] O.J.

No. 4233 (C.A.),where the Court upheld a sentence of 15 months imprisonment for one count each of possession of a forged credit card and possessionover despite a co-accused receiving a 15-month conditional sentence. Balendra had a horrendous prior record, (23 previous convictionsincluding numerous offences of dishonesty and breaching court orders,) so while the sentence was probably at the high end of the range,according to the Court, it was fit. [35] The final judgment submitted by counsel was R. v. Sriranganathan, [2012] O.J. No. 950 (OCJ), a decision rendered by P.Robertson J.

Here, a 26-year-old first offender pleaded guilty to: (

i) mischief under by interfering with an ATM; (ii) possession of aforgery device – a skimmer; and, (iii) possession of a credit card obtained by crime. Only one ATM was involved and there was no loss. The defence sought a conditional discharge and the Crown sought a suspended sentence. In a well-crafted and helpful judgmentRobertson J. imposed a conditional sentence but characterized his decision as a close call. That is to say, he was very close to imposingactual jail on the facts before him, which are minimal in nature when compared to what Messrs.

Girdea and Ispas did. [36] The mitigating circumstances in Sriranganathan included the facts that the accused was a youthful first offender with no priorcriminal record. He had served two days of pre-sentence custody. There was no actual loss and only one ATM was hacked. Atparagraph [16] Robertson J. sets out and details the many features that aggravate the crimes committed. In my view, Justice Robertson’sdiscussion bears repeating and I incorporate much of it here (with some slight changes to its formatting): “The aggravating factors are:

a) This is a sophisticated crime involving the installation of a device to record data and personal information of banking customers. These devices are not readily available and can only be acquired through one's association with illegitimate sources ...

b) The accused’s involvement in the criminal activity is pre-planned. To have become involved, the accused would have had to have met with those higher up on the chain to be entrusted with the skimmer and pin hole camera, to have received instructions on its installation and instruction … c) … [B]y agreeing to become involved, he was … knowingly joining in a criminal enterprise with others, was aware of the objective of the broader group and was aware … of the potential devastating effects of their activities. He was … knowingly, a member of a criminal organization.

d) The prevalence of this type of crime is increasing. … In the Victim Impact Statement of Interac Association, the exponential growth of debit card fraud resulting from skimming is demonstrated in the increasing loss due to this activity. In 2003 the loss was $44 million with 29,000 debit cards exploited. The loss has continued to increase despite industry safeguards. In 2010 the loss due to skimming had grown to $119 million with over 205,000 debit cards exploited. [14] e) … [T]he potential for loss was very significant … First there is the primary victim, those whose cards have been skimmed.

They will suffer both the inconvenience of the fact their cards will not work and the embarrassment that their cards cannot be used to pay for goods and services. … Then there is the secondary victim, the individual bank, which must investigate the loss and ultimately, reimburse the cardholder for the fraudulently obtained funds. The final victim is the attack on the integrity of the banking system in general.

f) The attack on the banking system is perhaps most important. The crime has a direct impact on the public's faith in the security of the electronic banking system, a system which relies heavily on the customer's use of ATMs. In R. v. Slade [2006] N.S.J. 445 (N.S.S.C.) , Justice MacDonald of the Nova Scotia Supreme Court commented on this aspect: "In my view, this type of offence goes right to the reliance the average member of the public has in its electronic banking system.

The ability of this type of activity to throw havoc into our banking system is tremendous and dangerous." It was also commented on by Justice Van de Veen of the Alberta Provincial Court in R. v. Marano [2007] A.J. 425 at para. 16 : "The nature of the offence before the Court is extremely serious. The scheme facilitated by the accused strikes at the very foundation of modern monetary technology heavily relied upon by the public at large to secure necessities of daily life on an ongoing basis." In R. v.

Sandranathan [2007] O.J. 2326 , a case heard in this court by Wong, J., in a Victim Impact Statement provided by the bank, in that case the CIBC, as to the impact of skimming and bank card fraud has on the banking system as a whole, the bank had this to say: "This issue (card fraud) adds to a diminished belief in the structure and stability of the convenience card process.

The lifeblood of any financial institution is its customer base, and if there is a lack of faith from clients in any of its systems, including the convenience card sector, the economy as a whole is eventually impacted." The Sentences [ 37 ] Serious consideration must be given to the imposition of a conditional sentence. ( see Proulx at paragraph [90] ) [15] . Given this directive, and Justice Green’s exemplary reasons in Pechterski I have done my utmost to attempt to conclude that a conditional period of incarceration would be a fit sentence on these facts for these offenders. I cannot come to that conclusion.

In R. v. Toia , [2007] O.J. No. 617 , (in an admittedly different situation,) I had occasion to study and reflect upon the many passages in Proulx that speak to the principles of sentencing and which demonstrate that a conditional sentence may be sufficient to meet the principles of denunciation and deterrence required by a particular case. However, as noted, I have concluded that a conditional sentence would not be a fit disposition on these facts for these offenders. In my view, Justice Robertson’s analysis of the aggravating features of this kind of crime is convincing and compelling.

That analysis militates against finding that a conditional sentence on the facts and circumstances in this case would be a fit sentence. [ 38 ] In light of the sophisticated nature of the scheme, and its extent, the premeditated nature of the crimes committed and the losses incurred, I simply cannot come to the conclusion that a conditional sentence is fit and appropriate for either Mr. Girdea or Mr. Ispas.

I arrive at that conclusion despite acknowledging and weighing their pleas of guilty and despite the presence of other mitigating circumstances that obtain; videlicet the substantial savings in time, trouble and expense to prove the allegations provided by their guilty pleas, the fact that Ispas is a first offender with no prior record and despite the prospects for rehabilitation of both, given their past proven capacity to contribute by working and engaging in useful community activities (as supported by character references), and despite the pre-sentence custody served by each offender. [ 39 ] The purported immigration consequences to Mr.

Girdea would not normally affect the calculus but as noted below at paragraph [48], given that the total sentences imposed on him equal the total length of the sentences imposed on Ispas, less appropriate pre- sentence custody credit, the Crown did not oppose a series of consecutive shorter sentences being imposed on Girdea that might have the effect of mitigating collateral immigration consequences for him. [16] [ 40 ] It may be that $86,283.56 would be considered by some to be shy of being a large-scale commercial fraud but it seems to be a fair and accurate characterization to me.

Moreover, but for their apprehension, the losses would likely have kept mounting, so that if $86,283.56 does not rise to the level of a large-scale commercial fraud, the scheme may well have achieved that designation in due course. By that I mean that this was not a case in which it has been suggested or submitted that the offenders voluntarily and independently elected to cease committing the offences.

The time frames of the offences also show that these were ongoing and long- term criminal endeavours . [ 41 ] That observation also speaks to and undercuts the submission that these offenders were bound to be caught. With respect, no

such inference can be reliably drawn on the evidence before me. Ispas had no prior record and was effectively unknown to law enforcement and essentially unidentifiable despite the police having his photo from the ATM cameras. And, while it is true that Girdea had a prior record it was imposed in Toronto in 2005 so that he, too, was effectively unknown to local policing services. So, while Mr. Raftery urged that Girdea was a mere foot soldier in this enterprise, if Mr.

Raftery’s analogy is correct, then Girdea was a volunteer and not an unwilling conscript. [ 42 ] Finally, while the assessment of the Supreme Court at paragraph [100] of Proulx instructs that … “ [t]o the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration” that paragraph continues: “ Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction.” [ 43 ] I appreciate that while paragraph [100] continues “However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration.

This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.” For the reasons that I have identified I have come to the conclusion that a conditional sentence does not comport and comply with s. 718.1 in this case. The Sentences Imposed [ 44 ] While Mr. Girdea has a prior criminal record, I see no reason to distinguish between the two offenders. The only basis for distinction is to give each offender the appropriate credit due to him for his pre-sentence custody.

As noted above, before endorsing the informations I have provided defence counsel with an opportunity to examine the various informations extant before me and to provide me with their positions on the extent of the pre-sentence custody served by their respective clients. [45] Having done so I have determined that Mr. Girdea has served 68 days of pre-sentence custody which are credited to him at the rate of 1.5 to 1 for a total credit against the sentence to be imposed of 102 days. He was never denied bail, indeed was released on bail and it was effectively a Crown onus on the issue of bail. [46] Mr.

Ispas is entitled to a credit of 39 days of pre-sentence custody credit attributed at the rate of 1.5 to 1 for a credit against the sentence to be imposed of 58 days. He had no prior criminal record and the other matters noted above applied to him, too. [47] Mr. Ispas, a Canadian citizen, is hereby sentenced to a period of 12 months incarceration in a provincial reformatory less credit for his pre-sentence custody as noted at paragraph [46] concurrent on each count of fraud over $5,000.00. That is to say, he is sentenced to ten months and two days on each fraud over count, concurrent to each other.

He is sentenced to two months incarceration on each of the fraud under counts, concurrent to each other and concurrent to the other sentences imposed today. [48] Mr. Girdea is a foreign national with no status in Canada. Having reviewed the matter with Mr. Raftery and Mr. Jacob on the record prior to releasing this judgment, I impose sentences on Mr.

Girdea as follows: • on the first count of fraud over $5,000.00 I give him credit for 68 days of pre-sentence custody credited at 1.5 to 1 for a total credit of 102 days and impose a further 48 days incarceration; • on the second count of fraud over $5,000.00 I impose a sentence of four months incarceration consecutive; • on the third count of fraud over $5,000.00 I impose a sentence of three months consecutive; • on the two counts of fraud under $5,000.00 I impose sentence of two months on each count concurrent to each other and concurrent to the other sentences imposed this day. [49] At the conclusion of their respective sentences each accused shall be placed on probation for a period of 15 months, on terms to be pronounced on the record momentarily. [50] Pursuant to s. 738 of the Criminal Code a restitution order shall issue against each accused in favour of the named complainants identified at paragraph [6] above for one-half of the various amounts noted in that paragraph. [51] Counsel may make submissions with respect to any other ancillary orders or matters not yet dealt with including withdrawal of the counts and informations not yet dealt with.

Dated at St. Catharines this 4 th day of March 2014 ______________________________ Joseph S. Nadel (OCJ)