2019 QCCQ 6270, 2019 QCCQ 6270

R. c. Shahid 2019 QCCQ 6270 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division N o : 500-01-127525-159 DATE: 7 June 2019 ______________________________________________________________________ BY THE HONOURABLE PIERRE E. LABELLE J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. IMRAN SHAHID Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ OVERVIEW [ 1 ] Mr.

Shahid (the accused, Shahid) was found guilty in January [1] of 2 counts of fraud over 5000$. A presentence report was submitted at the end of March and the parties submitted their respective propositions regarding the appropriate sentence on 23 April 2019. [ 2 ] The charges stem from fraudulent manoeuvres in real estate transactions in which the accused acted as a mortgage specialist. In two transactions he used false pretenses with the buyers and defraud them of more than 40 000$.

While both were reimbursed by a regulatory entity [2] , they still suffered consequences. [ 3 ] The relevant facts were set out in the judgment [3] and they will not be repeated for the purpose determining the appropriate sentence. THE PRESENTENCE REPORT [ 4 ] We find that the accused holds a university degree in finance. He is married and is the father of two small children. He now works in a fast-food restaurant, and earns roughly 1 000$ per week. [ 5 ] He used to work for a finance company until 2010, when he was expelled from La Chambre de la Sécurité financière , because he took funds from his clients.

He then turned to real estate and became an agent, with no great success. His revenue went down drastically, and so did his assets. To try to get out of debt, he turned to his credit cards in order to borrow money. He left that field of work, and he became a mortgage broker. He found a job with a company specializing in this field, but was fired, when his past came to light. [ 6 ] From that moment, in 2013, he was working for himself. It is in that context that he met Mr. Mahmood and Mr. Lubana. [ 7 ] The accused wanted to get out of his financial trouble.

To that end, he surmised that he would take some of his client’s money, and that they would not find out, but if they did, he would be able to reimburse them using money from other clients [4] . It did not work. It is the second time that he is caught while taking his client’s money. Once in 2008, which lead to his expulsion from “ La Chambre de la sécurité financière ” in 2010. [ 8 ] In his evaluation of the accused, the probation officer asserts that there are no outlying reasons to explain the criminal behaviour, except his own incompetence in managing his own finances or the presence of delinquent values.

The probation officer shows that the latter is in play, he explains: […] since he acted illegally by using his professional skills at the expense of the victims and the ethical

values to which he had adhered. He did not hesitate to reuse a strategy that he had used in the past to misappropriate funds, while knowing full well that it was illegal. This tends to establish the presence of lax values and a comfort with breaking the law to achieve his aims [5] . The Court agrees. [ 9 ] The reactions of the accused towards the victims seems ambivalent at best.

He states “ […] his statements show a denial of responsibility for his acts and a minimization of the consequences experienced by the victims in the file .” And further, ‘[…] we are perplexed as to whether he has learned a lesson from his legal problems. For this reason, because his ethics are rather variable and because his relationship with money remains vague, we cannot rule out the risk of recidivism in his case. [6] ” [ 10 ] Finally, in his assessment, the officer concludes that the accused is eligible for community service, should this be an avenue the Court is willing to entertain.

THE EVIDENCE [ 11 ] Only the accused testified at the hearing. He confirmed some of the issues laid out in the pre-sentence report. He also testified to the effects this situation has on him and his family. He says that his reputation was badly hurt because of the present situation. He is the father of two children that are now old enough to know what is going on. While she is the owner of the fast-food restaurant where he is a manager, his wife is dependent on him to a point where he needs to drive her around, so this makes it difficult should he have to go to prison.

He is now ready to undergo a therapy and apparently, he wishes to make full payment to the OAICQ. (The Court notes however that this file has been dragging through the system for almost 4 years now and nothing was done until today.) [ 12 ] The accused makes a disclosed salary of 48 000$, he is ready to serve an intermittent jail sentence and also to execute the maximum numbers of hours of community service, all the while continuing working 80 to 90 hours a week. [ 13 ] The impression of the Court is that the accused is far more in tune with the consequences the accusations had on him and in his life, than what the victims had to go through.

PROPOSITIONS OF THE PARTIES [ 14 ] The amounts defrauded, the breach of trust, the period of time, the planned operations are all elements the Crown relies on to propose a custodial sentence on both counts, which should be served consecutively [7] . [ 15 ] Base on the evidence and on the effect a custodial sentence would have in the life of the accused and his family, there is a proposition of intermittent jail time, community service, a reimbursement and finally a therapy [8] .

THE PRINCIPLES [ 16 ] Any decision regarding the determination of a just sentence needs to take into account the objectives and principles set out in sec. 718 to 718.3 of the Criminal Code . Thus, the Court needs to evaluate and balance the principles of denunciation and deterrence. Also, it must be decided if the detention of the accused is necessary, the rehabilitation needs to be taken into consideration along with possible reparations and finally instilling a sense of responsibility.

The sentence needs to correspond to the criminal responsibility of the accused, and it should, where possible be similar to other sentences in related matters. Also, aggravating and mitigating factors should be determined, this will help the Court in assessing where, in the sentencing range, it should fit, said range will be decided later on. These sentencing ranges help to guide the Courts, but they are not binding. It is possible, where applicable, to sentence an accused outside of the pre-established range, whether with a higher or a lower sentence.

If this exercise takes into account all of the principles, objectives and factors and determines their relative importance, this should bring the Court to impose a just sentence. THE SENTENCING RANGE [ 17 ] Authors Parent and Desrosiers have determined that the amounts the accused put in play in his scheme places the sentence in a range between 6 and 12 months of detention. It is obvious that other options are available, where that situation warrants it [9] .

The ultimate sentence will depend on the evaluation of the weigh the objectives should possess in the equation, combined to the consideration to be given to the mitigating and aggravating factors. [ 18 ] What are these factors? On the mitigating side, there is the expression of remorse and regrets, but these have to be weighed with the comments made in the pre-sentence report and the conclusion the Court came to earlier in the judgment, more specifically regarding his offer of attending a therapy and a full reimbursement.

As was said earlier, this case has been going on for almost 4 years, these offers possess in the circumstances little if any weigh [10] . Had the accused been serious about these, he possessed ample time to do both. It could look to an independent third party that is he trying to better is image just before the sentence is to be imposed. The Court will stop here. Criminally speaking, the accused has no prior convictions. But he has exhibited similar conduct in the past, when he was expelled from “ La Chambre de la Sécurité Financière” because he embezzled his clients.

While this does not possess the same weigh as a prior record would, it is still useful to evaluate the person before the Court [11] . [ 19 ] The aggravating factors are as follow. There are 2 victims and both suffered from their encounters with the accused, Mr. Mahmood even more so. During submissions on sentence, there were remarks made by the representative of the accused that the testimony of Mr. Mahmood regarding consequences was not corroborated and thus should be treated with caution. The testimony of Mr. Mahmood at trial was wholly accepted by the Court, as it was coherent and supported by other evidence.

Also, it was accepted because it was tested during cross-examination. It was the time then, to test the testimony of the witness regarding the consequences he suffered. It was not done. [ 20 ] The pre-sentence report sheds a negative light on the accused. He abused the relationships he had with two clients, who trusted him and by his own conduct broke almost every rule in the trade [12] , which puts a legislatively mandated aggravating factor in play [13] . [ 21 ] It is the opinion of the Court that the aggravating factors are more important and they have greater weight than the few

mitigating factors identified earlier. The consequence of this determination is to push the sentences higher in the brackets identified earlier. THE LEVESQUE ASSESSMENT [ 22 ] Our Court of Appeal set out a series of markers to be evaluated when deciding a just sentence in fraud cases [14] . From these markers, the Court comes to the following conclusions. [ 23 ] One of the victims lost under 40 000$ and the second under 20 000$. He used his position as a mortgage broker to take advantage of the victims. They were neophyte in the field, they trusted him and he broke that trust.

He even had checks made out for his own use, one could think of the check that was used to pay his bankruptcy trustee. The actions with both victims were planned and executed for the accused to benefit from entirely. [ 24 ] Afterwards, while he promised to reimburse both victims, he obviously never did anything to that end. He does not have any prior records. He wanted to take control over his disastrous financial situation, which came about because of the poor choices he made. He acted willfully, deliberately and with premeditation.

He wanted and needed to take the money from his clients and that’s exactly what happened. [ 25 ] The assessment of the markers in Levesque also push the sentence higher in the bracket. [ 26 ] The accused asked the Court to impose a sentence that falls outside of the sentencing brackets laid out earlier. While this is a possibility recognized by our Court of Appeal [15] , it needs to rest on significant elements to justify it. [ 27 ] Are there such elements in our case? The answer is no. The accused says that if he should go to prison, this would be a heavy toll on his family.

While this is probably true, it is a consequence that is usually present for every person who is sentenced to a jail term. And to do so would not put sufficient emphasis on the principles of deterrence and denunciation that need to be underlined [16] , considering the fact that he breached the trust of both victims. The proposition of the accused regarding the sentence to be imposed cannot therefore be followed.

THE APPROPRIATE SENTENCE [ 28 ] Considering the sentencing brackets identified earlier and the conclusions regarding the aggravating and mitigating factors, the sentence to be impose should lie in the upper echelons of these brackets. Therefore the Court comes to the conclusion that on the first count of the information a sentence of 10 months is appropriate. On the third count, a sentence of 6 months is also appropriate. The Court takes into consideration the difference in the amounts of money in play for both victims, and also the fact that the accused went farther in his actions with Mr.

Mahmood, when he asked for advances from him and paid him back with cheques that were NSF. [ 29 ] Considering that these were 2 separate transactions, and considering also s. 718.3 (4) b) (

i) of the Criminal Code , these periods of incarceration will be served consecutively. This being decided, the Court must determine if the totality of the sentence exceeds the moral culpability of the accused [17] . [ 30 ] The total sentence is 16 months. Considering the acts that constituted the criminal conduct, breach of trust, no reimbursement, the consequences for the victims, it cannot be said that the period of incarceration exceeds the moral culpability of the accused, quite the contrary.

FOR THESE REASONS, THE COURT: [ 31 ] On the first count of the information imposes a sentence of 10 months of incarceration; [ 32 ] On the third count of the information, imposes a sentence of 6 months of incarceration to be served consecutively; [ 33 ] Prohibits, pursuant to

section 380.2 (1) of the Criminal Code , the accused from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person, this order will be in force for a period of 7 years starting today. __________________________________ Pierre E. Labelle, J.C.Q. Me Louis-Philippe Meek-Baillot In the name of the Prosecutrix Her Majesty the Queen Me Stéphanie Gariépy Me Marianne Carrier For the accused Imran Shahid

Date of hearing: 23 April 2019 [11] R. v. Edwards, 2001 24105, at par. 63 ; R. c. Aprile, 2007 QCCA 1040, at par. 11. The Court is mindful of thecaveat expressed by the Ontario Court of appeal in Edwards at par 61 and 62 : [61] Notwithstanding this court's decision in Roud, the starting point for determining the admissibility and use of evidence of untriedoffences must be the Criminal Code. When Roud was decided, the Code provisions reviewed above had not been enacted. To the extentthat some of the language in Roud may appear inconsistent with the Criminal Code, the Code must prevail.

However, I think it ispossible to reconcile the Code provisions with the earlier decisions in Roud, Lees, Jones and many of the other decisions. [62] As is the case with evidence generally, admissibility depends upon the purpose for which the evidence is adduced. In this case, theCrown was not entitled to lead the evidence of Ms. Powell and Ms. Firth for the purpose of increasing the punishment that wouldotherwise be appropriate for the offence of attempted murder. To do so would offend the provisions of ss. 718.1 (proportionality) and725 (taking other offences into account).

The prosecution was also not entitled to lead this evidence to attempt to extract somepunishment for those untried and uncharged offences. That would offend the presumption of innocence and s. 725. It is no answer to saythat the Crown should be able to use the evidence for those purposes if it proves the conduct beyond a reasonable doubt. Such reasoningundermines the basic tenet of our system that, absent compliance with s. 725, an offender can only be sentenced for crimes that havebeen properly charged and proved at a trial of those offences.