2015 QCCQ 876, 2015 QCCQ 876

R. c. Dupuis 2015 QCCQ 876 JL 1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Criminal and Penal Division" No.: 500-01-037067-102 DATE: January 30, 2015 ___________________________________________________________________ PRESIDING: THE HONOURABLE DENIS LAVERGNE, J.C.Q. ___________________________________________________________________ THE QUEEN Prosecutrix v.

DUPUIS, JOCELYN Defendant ___________________________________________________________________ SENTENCING ___________________________________________________________________ [ 1 ] At the conclusion of a trial, the Court convicted the defendant of the offences of fraud over $5,000 and forgery. [ 2 ] These are indictable offences punishable by a maximum of 14 and 10 years' imprisonment respectively, in accordance with paragraphs 380(1) (

c) and 367 (

a) of the Criminal Code . [1] 1-

Summary [ 3 ] In the judgment on the verdict [2] rendered on September 26, 2014, the Court described the context in which the offences were committed, identified the incriminating elements by relying essentially on the documentary evidence, and set out the reasons for rejecting the defendant's theory absolving him of all criminal liability. [ 4 ] It is appropriate to refer to this judgment in extenso , without repeating every detail. [ 5 ] It is sufficient to recall the main points. [ 6 ] The defendant, director-general of the construction union ("FTQ-Construction") affiliated with the Fédération des Travalleurs du Québec ("FTQ") since 1997, filed expense accounts, or what were referred to at trial as [ translation ] "expense reports", for the period between December 2, 2007 and November 11, 2008, with the union's accounting department for expenses incurred in the performance of his duties, which he claimed and for which he was reimbursed. [ 7 ] The documents filed in support of these [ translation ] "expense reports" consisted primarily of handwritten receipts that appear to be from restaurants and that detail the cost of meals. [ 8 ] Most of the supporting documents submitted with these [ translation ] "expense reports" turned out to be false, either because they were fictitious or because the amounts claimed exceeded the expense actually incurred. [ 9 ] It follows that the [ translation ] "expense reports" signed by the defendant are themselves false documents. [ 10 ] More specifically, most of the documents supporting the charges are from six restaurants, although more than 200 supporting documents that at least appear to have been issued by numerous establishments throughout the province were discovered during the police investigation. [ 11 ] The facts appearing from the unrefuted and in any case irrefutable documentary evidence establish that: • 43 [ translation ] "expense reports" were signed and filed by the defendant during the period contemplated, spanning a little over 11 months, supported by 287 receipts or invoices;

• 209 receipts are handwritten; • 144 of them appear to be issued by one of six restaurants; • there is no other invoice or proof of payment for 73 of the 144 receipts supporting a total reimbursement of $43,379.55; simply put, these are fictitious restaurant expenses; • the 71 other receipts, which total $19,899.47, appear to have been inflated when compared with the restaurant invoices examined in the police investigation; • only 4 of the 43 [ translation ] "expense reports" appear to be free of any irregularity. [ 12 ] According to a handwriting comparison carried out by a forensic document specialist, the author of 284 receipts filed as supporting documents and that of 57 documents written or signed by the defendant are one and the same. [ 13 ] The defendant, who chose not to testify, acknowledged that the receipts included in the documentary evidence constitute false documents [ translation ] "to the extent that they are not what they appear to be, namely, acknowledgements of amounts paid in full for meals". [3] [ 14 ] Conceding that a presumption of fraud therefore arises, the defendant argued that there was only the appearance of fraud. [ 15 ] This unique defence was based on two propositions, which were more amply considered in the judgment on the verdict.

They may be stated as follows: ➢ The amounts reimbursed to the defendant on the basis of the false receipts correspond to actual expenses of various types that the defendant paid for in cash during various union activities; there was therefore no dishonest act or deprivation, the two essential elements of the offence of fraud; ➢ As the defendant’s practice of paying for various activities here and there out of his own pocket for the benefit of the workers was known to everyone, the [ translation ] “expense reports” were approved by the Executive Committee and the decision-making assemblies; therefore, a practice that was [ translation ] "seen, known and consented to by the Committee on behalf of FTQ-Construction" [4] cannot be considered dishonest. [ 16 ] For reasons that are more fully developed in the judgment on the verdict, the Court dismissed these arguments, which neither find support in the facts nor raise any reasonable doubt as to the existence of the essential elements of the offences of fraud and forgery. [ 17 ] Nevertheless, the defendant in a way raised the issue again at the sentencing hearing. [ 18 ] It is appropriate to consider it here. 2 - SENTENCING HEARING [ 19 ] Notwithstanding the Court's findings of fact during the trial, the defendant argues the relevance of establishing the scope of the loss or, in other words, the deprivation alleged by a victim of fraud, when sentencing in such circumstances.

According to him, there has been no loss here. [ 20 ] This statement is based on the testimony of Bernard Girard and on a letter from the director-general of FTQ-Construction (exhibit S-1), the victim named in the indictment. - Testimony of Bernard Girard [ 21 ] As director-general of a union affiliated with FTQ-Construction, for which he became a Committee member, Girard has known the defendant for a long time, and he lauds his abilities as union spokesman. [ 22 ] Like the accountant Roland Brillon at trial, Girard stated that there was no policy or restriction on duty-related expenses when the defendant was himself the head of FTQ-Construction. [ 23 ] Similarly, like the witnesses at trial (Pigeon, Grondin and, to a lesser extent, Kègle), his statements remained general when he referred in passing to unusual expenses paid by the defendant here and there, over the course of meetings, to promote recruitment among workers or to assist during strikes, for example. [ 24 ] He confirmed that the practice at the time, at least within the union he was leading, consisted of requesting invoices that were submitted for reimbursement and ultimately approved by the decision-makers. [ 25 ] Therefore, occasionally, some invoices were false.

For example, workers benefiting from a weekly allowance of $135 had to file supporting documents to receive it.

To do so, they sometimes submitted false restaurant receipts. [ 26 ] In short, they tried to compensate members for certain expenses incurred in the performance of their duties. [ 27 ] In cross-examination, however, the witness stated that this type of permissiveness never resulted the level of payouts claimed by the defendant and for which he was prosecuted. [ 28 ] Moreover, Girard is not at all aware of how the defendant filed his [ translation ] "expense reports" or specifically of the falseness of the supporting documents written in his hand.

[ 29 ] Like the other witnesses, he referred to a ritual that we are to understand was, for all intents and purposes, the practice at FTQ- Construction and its affiliated unions, whereby they chose to rely on clandestine accounting procedures for certain expenses, as illustrated at trial, instead of making legitimate entries in the monthly balance sheets.

Indeed, like his colleagues, Girard was unable to rationally justify why this was the way things were done and, also like them, acknowledged that changes to the manner of filing expense accounts took place after the defendant left FTQ-Construction. [ 30 ] He remains convinced that the defendant did not take a cent from his employer. • Assessment [ 31 ] However honest he may be, his testimony consists of nothing more than an abridged version of the argument submitted at trial and rejected by the Court.

It cannot be revived or succeed now; more specifically, in any event, it cannot influence the Court's decision at the sentencing stage regarding a defence that was not accepted at trial. Since the verdict has been appealed, it will fall to the Court of Appeal to reconsider its merit. [ 32 ] Girard's testimony sheds no new light.

It also does not demonstrate the absence of loss or deprivation argued by the defendant. [ 33 ] The same is not true, at least at first glance, with respect to the letter from FTQ-Construction. – The letter from FTQ-Construction [ 34 ] On November 12, 2014, Yves Ouellet, director general of FTQ-Construction, answered counsel for the prosecution's letter dated November 7, which had erroneously been sent to the FTQ. [ 35 ] Under subsection 380.3(2) of the Criminal Code , the Court must, as soon as possible after a conviction for an offence under section 380(1) , inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses. [ 36 ] This obligation exists in tandem with that set out in subsection (1) of the same provision, which requires the court to consider making a restitution order under

section 738 or 739 of the Criminal Code . This is the context of the letter from FTQ-Construction. [ 37 ] With the exception of the few introductory remarks on the constitution of the FTQ and the actual legal entity that claimed to have suffered a loss, what follows is the letter from Mr. Ouellet, in full: [ translation ] In this case, neither FTQ-Constructon nor its affiliated unions have claimed that Jocelyn Dupuis stole money from or defrauded FTQ- Construction. The debate that took place at FTQ-Construction at the time concerned solely the amount of the expenses, that is, whether they were reasonable.

We were facing an internal administrative issue, not a criminal prosecution. To be clear, in actual fact, we were dealing with a political disagreement, hence the position taken unequivocally in December of 2010 that there was no reason to bring a civil suit in this case. Moreover, on September 24, 2008, the executive committee of FTQ-Construction approved a final settlement between the Fédération and Jocelyn Dupuis. It was ratified on October 21, 2008, by the assembly of leaders and representatives. As a reminder, we note that

section 14 of the statutes of FTQ-Construction provides that: [ translation ] Between conventions, the assembly of leaders and representatives has the decision-making power to see to the administration of the Fédération and to ensure that objectives of these statutes and regulations are achieved. The highest decision-making authorities within FTQ-Construction have therefore ruled on the matter. The same is true regarding the November 2008 convention, where no such resolution was filed for deliberation or adoption.

Since there was never theft or fraud, we could not proceed with a claim for reimbursement, and this is still the case today. All union leaders, their representatives and their delegates from the various bodies were informed of the content of the debate rocking FTQ-Construction. It never concerned fraud or theft of money from FTQ-Construction by Jocelyn Dupuis. All of the minutes from the decision-making bodies of FTQ-Construction, which moreover are in the hands of the Sûreté du Québec, outline a political disagreement between two groups within FTQ-Construction.

As for the rest, objectively, it is merely speculation and warring factions. The fact that things got out of hand for all involved is an unfortunate part of a difficult process, but one that is totally normal in the context of the democratic life of all institutions. We need only look to leadership races in political parties for examples. [ 38 ] First of all, and essentially, the Court finds that FTQ-Construction does not seek restitution. Ultimately, this is the only question that

section 380.3 of the Criminal Code seeks to resolve and what motivated the steps taken by the prosecution, which it was obliged to do by law. [ 39 ] This is not such a rare situation in the criminal law. There is nothing requiring a victim to seek restitution. [ 40 ] Sections 738 and 739 of the Criminal Code , which empower the Court to order offenders to pay damages in cases of loss, destruction of property or bodily injury, have existed for nearly two decades. Requests appear to have been few and far between. [ 41 ] There may be many reasons for the person aggrieved to waive the right to claim restitution.

In this case, for reasons unknown, which are all its own, FTQ-Construction states that it had reached [ translation ] "a final settlement" with the defendant as early as the fall of 2008. It is not unusual for an employer to elect to resolve contentious or at least bothersome issues caused by the conduct of an employee without the intervention of the courts.

[ 42 ] It does not follow, however, that such conduct can never constitute an indictable offence. [ 43 ] When FTQ-Construction arrived at a settlement with the defendant in the fall of 2008, the police investigation had only just begun. [ 44 ] Several months would pass before it turned up any concrete results leading to charges being laid against the defendant in March of 2010.

Despite these charges, in December of 2010, FTQ-Construction confirmed its [ translation ] "unequivocal" position exempting the defendant from any civil action. [ 45 ] The letter from the director-general, however, goes far beyond the initial objective.

Not only does FTQ-Construction not claim restitution, it also maintains that it was not a victim precisely because there was neither fraud nor theft. [ 46 ] The Court saw this statement, which is clearly contradicted by the facts established at trial, as an unfortunate characterization. [ 47 ] It has not been clearly established whether the director-general was aware of the judgment on the verdict before he wrote his letter dated November 12, 2014.

Whatever the case may be, it is rather unusual to note that the defendant himself recognizes having forged documents, which is a dishonest act in itself, whereas the director of FTQ-Construction (a legal person), who paid expense accounts on the basis of these very documents, appears to maintain the contrary. [ 48 ] Moreover, the refusal to lodge a complaint or the silence of the alleged victim of an indictable offence may have a decisive effect on the proof that must be made before the courts; it has none, however, on the existence of an offence, which naturally must be proved according to the applicable rules of evidence.

Anyone may report what he or she believes to be the commission of an indictable offence. [ 49 ] Whatever is said or believed, it must be recalled that no one at the trial: - stated that he or she knew how the defendant went about filing his [ translation ] "expense reports" - confirmed that they knew that the defendant had filed several fictitious supporting documents - certified that the decision-making bodies of FTQ-Construction knew, consented to, and approved the defendant's method of justifying his [ translation ] "expense reports" with fictitious supporting documents. [ 50 ] In light of the facts, it seems clear that the defendant misled everyone, including and in particular those who praise his honesty. [ 51 ] To conclude this chapter, a final question may be asked about the letter from the director-general. [ 52 ] Ultimately, was there really a victim? [ 53 ] To answer no to this question would be to deny the obvious. [ 54 ] The victim was FTQ-Construction itself, a legal person constituted under the Professional Syndicates Act , [5] whose workers, members of unions affiliated with FTQ-Construction, pay dues intended to ensure the furthering of their economic, social and moral interests. [ 55 ] Because of the defendant’s fault, the patrimony of FTQ-Construction was deprived of $43,379.55, which was paid on the basis of fictitious documents, and $19,899.47, which was illegally obtained in part on the strength of inflated receipts. 3 - SENTENCING [ 56 ] The parties cite case law in support of their submissions.

The prosecution, for its part, suggests a term of imprisonment of 10 to 18 months, while the defendant suggests a suspended sentence and 240 hours of community service.

The defendant believes there are specific circumstances that allow the Court to depart from the sentences generally imposed in such circumstances on persons in authority who are trusted by those around them. [ 57 ] As the authorities cited by the parties illustrate, Canadian case law is replete with sentencing decisions in analogous fraud cases, each one as varied as the circumstances, due in particular to the individualization of the sentences. [6] [ 58 ] As indicated by the survey of the case law carried out by this Court in its recent decision in R. v.

Laamari , [7] even conditional sentences are not unusual, at least up until Parliament's amendment of the Criminal Code in 2012, which removed offences punishable by a maximum sentence of 14 years of imprisonment. [8] [ 59 ] Whatever the circumstances, sentencing is based on certain principles and objectives set out in the Criminal Code . [ 60 ]

Section 718.1 states the fundamental principle: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 61 ] This principle of proportionality implicitly requires that sentences be adjusted in accordance with aggravating and mitigating circumstances, as prescribed in

section 718.2 of the Criminal Code . The latter provision also enumerates aggravating circumstances such as abuse of the victim's trust. [ 62 ] Finally,

section 718 of the Criminal Code states that 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, were necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. – Objective gravity [ 63 ] The significant maximum sentences of fourteen and ten years of imprisonment set out in the Criminal Code reflect the stigmatization of dishonest conduct with intent to mislead and gain an advantage. [ 64 ] It is useful to note that in 2004 and 2011, Parliament amended the Criminal Code by toughening the sentence for the offence of fraud and by establishing a minimum sentence in cases of significant fraud.

These amendments reveal Parliament's intent to clamp down on offenders whose deceit betrays the trust they have inspired and may sometimes cause harm that is difficult to rectify. [ 65 ] In conclusion, it is possible to argue that the offences of fraud and forgery have a high degree of objective gravity. – Subjective gravity [ 66 ] Generally speaking, subjective gravity concerns the offending conduct and the specific circumstances of the offender. [ 67 ] In this respect, the Court reiterates the factors in the analytical framework for determining the inherent liability of the offender, as proposed by the Court of Appeal of Quebec in Lévesque v.

Attorney General of Quebec , [9] a frequently cited and seminal case in matters involving fraud. • The nature and extent of the fraud can be measured by, inter alia , the scope of the victim's deprivation and pecuniary loss [ 68 ] The facts establish that the defendant appropriated $43,379.55, which he obtained by way of forged documents that were prepared in his writing. [ 69 ] In addition to that amount, FTQ-Construction paid him $19,889.47 on the basis of receipts that were fraudulent, in that their amounts inflate the actual expense to which they correspond.

This amount, therefore, is in part actual expenses. [ 70 ] It is nevertheless arguable that the fraud in fact greatly exceeds $50,000. [ 71 ] For the reasons stated in the letter dated November 12, 2014, from the director-general, not only does FTQ-Construction claim that it is not a victim, it also refutes the allegation of theft or fraud committed by the defendant. [ 72 ] The fact remains, however, that the patrimony of FTQ-Construction was impoverished by several thousand dollars over a short period of time on the basis of false documents. • The degree of premeditation in the planning and implementation of a fraudulent system [ 73 ] The considerable number of false documents over a period of time as long as eleven months indisputably indicates a deliberate design to profit from the laxity reigning at the time when it came to the verification of expenses by using a process that, although not particularly sophisticated, was sufficient to deceive. [ 74 ] The defendant relied on his position as director-general and the influence he wielded to take advantage of those around him. [ 75 ] It took a fortuitous incident that brought to light the suspicious [ translation ] "expense reports" for the defendant to suddenly stop what he had been doing for several months. • The conduct of the defendant after committing the offences [ 76 ] There is nothing to say with regard to this factor.

The defendant did not testify at the trial or at the sentencing hearing. [ 77 ] We know nothing of the defendant's disposition after – or for that matter, even before or during – the commission of the offence. [ 78 ] There has been no reimbursement of the money he took.

For the reasons already stated, it appears that FTQ-Construction has waived any claim against the defendant and does not ask the Court to order restitution. • The offender's prior convictions [ 79 ] The defendant has no criminal record. [ 80 ] This generally mitigating factor should be considered in perspective, however, as it actually has no determinative effect in this case. [ 81 ] This man, whose honesty was never in doubt because of his position of authority and his good reputation, which he nevertheless

used to hide his planned and repeated indictable offences with the objective of depriving the victim, cannot now mitigate his criminal liability by invoking the very status and characteristics that facilitated the commission of the offences [10] or the fact that he has an unblemished past. • The personal benefits for the offender [ 82 ] According to the evidence at trial, the defendant received $63,279.03 paid by FTQ-Construction as reimbursement for expenses relating to his duties. [ 83 ] Because the defendant is silent, and the facts provide no indication of where the money actually went, the following natural inference may be drawn: the defendant used the stolen money for personal purposes. • The authority and trust characterizing the relationship between the offender and the victim [ 84 ] In this case, the authority and trust were total, without reserve and significant. [ 85 ] As the head of the most important construction union in the province – a powerful position in the union world – the defendant received a salary equal to his responsibilities and, as the evidence shows, had an unlimited expense account, which allowed him to indulge himself and his loved ones in princely meals at astonishingly high prices, particularly when it is considered that they were paid for with someone else's money. [ 86 ] As the testimony at trial and the sentencing hearing eloquently shows, the defendant benefited from the admiration and absolute trust of his peers to such an extent that no one questioned whether these [ translation ] "expense reports" were justified because they were convinced that they were in the workers' interests. [ 87 ] There appears to be no doubt that the defendant took advantage of his powerful union position to fraudulently appropriate thousands of dollars, while very likely knowing that he could do so with impunity because of both the trust he inspired and the systemic permissiveness regarding expenses incurred while performing duties. [ 88 ] Under subparagraph 718.2(2)( a )(iii), Parliament makes abuse of a position of trust an aggravating circumstance in the commission of an offence. [ 89 ] That is the case here, and this factor weighs heavily in the circumstances. • The motivation underlying the commission of the offence [ 90 ] It is worth recalling that the defendant chose to remain silent.

As a result, it is not possible to determine the defendant's motivation with certainty, other than to find that greed may be logically inferred from the established facts. What else can be said of someone who enriched his patrimony by more than $50,000 through repeated fraud over an eleven-month period? There is every reason to believe that the money that was dishonestly acquired was used to acquire goods and services. • The fraud resulting from the appropriation of public money [ 91 ] In this case, the money at issue cannot be strictly defined as public. Nor is it completely private.

But it is most assuredly money coming from the workers, with regard to whom the Professional Syndicates Act imposes – at the very least implicitly – a duty of sound management and accounting, which the defendant, a senior official in the union, helped flout. [ 92 ] The defendant, who is 60 years old, left FTQ-Construction in 2008, and now works full-time for a business corporation.

He has two adult children, and his wife suffers from certain health problems, which have been treated by long stays in California in recent years. [ 93 ] Richard Goyette, the defendant's long-time colleague who took over his position as director-general of FTQ-Construction, described the defendant's services and accomplishments in the union movement at length. [ 94 ] No one disputes the defendant's contribution to the full-scale defence of the workers’ cause and, beyond that, the promotion of FTQ-Construction through its charity work. [ 95 ] But this contribution, like FTQ-Construction's decision not to claim anything from him at all, does not obscure the defendant's moral blameworthiness.

For the reasons set out above, it in no way mitigates his criminal liability. [ 96 ] Upon consideration of the various factors set forth in Lévesque , it is clear that the aggravating factors prevail.

In fact, there are no real mitigating factors. [ 97 ] The criminal liability of the defendant is therefore that much greater. [ 98 ] The objective gravity of the offence of fraud in particular, heightened by the increase in the minimum sentence in 2004, the duration of the fraud stretching out over eleven months, the significance of the amounts stolen, the numerous false documents that were repeatedly manufactured, the premeditation and, in particular, the privileged position occupied by the defendant are all dominant factors to be considered in sentencing. [ 99 ] At a time where all types of intermediate groups and institutions in civil society are undermined by the misconduct brought about by greed or other shameful motivations of those occupying positions of authority and trust, the courts may not remain indifferent to the indignation of the public, whose interests were betrayed and which pressingly requires marked denunciation, reprobation and deterrence. [ 100 ] On every level, the proper functioning of society’s institutions and structures requires that a small number of individuals be

relied on as guardians of the public interest and that they be assigned, among other things, the power to manage the funds of others. They must be accountable, and if they transgress the law by committing indictable offences, they must be subject to the full rigours of the law, [ 101 ] The sentence must therefore unequivocally express the judicial and social censure to which the Supreme Court of Canada referred in its oft-cited judgment in R. v. Nasogaluak . [11] [ 102 ] There is in this instance no other less restrictive sanction than a restriction of liberty.

The defendant does not provide any convincing, specific or, to paraphrase, exceptional circumstances that can exempt him from a prison sentence. [ 103 ] This is supported by the dominant Canadian case law. [ 104 ] As early as 1997, in R. v. Pierce , [12] the Court of Appeal for Ontario stated that general deterrence was imperative in cases of fraud committed by persons in positions of trust.

The Court wrote: [41] What the authorities make clear is that the purpose of incarcerating these offenders is not to protect the community from any danger posed by the particular offender, but to protect the community from the danger posed by those who may be inclined to engage in similar conduct. … [ 105 ] In R . v . Coffin [13] and R . v .

Wellman , [14] the Court of Appeal of Quebec reaffirmed this principle. [15] [ 106 ] More specifically, in Coffin , the Court of Appeal reviewed nearly sixty judgments and decisions of Canadian courts dealing with sentences imposed in cases of fraud, and noted that [ translation ] "custodial sentences are appropriate ‘in principle’ in cases of large-scale fraud; this does not mean, however, that the sentence may not be served in the community in specific cases". [16] [ 107 ] Of course, the fault committed by Coffin, which was considerable, is notably different from the one in this case, as are the much larger frauds denounced by harsher sentences. [17] [ 108 ] Nevertheless, the fact remains that the principle of general deterrence is most commonly applied. [ 109 ] Indeed, in Coffin , the Court of Appeal states that [ translation ] "the various Canadian appellate courts have generally imposed imprisonment in cases of large-scale premeditated fraud that took place over relatively long periods of time". [18] [ 110 ] The case law cited by the defendant provides examples of milder sentences imposed in similar cases. [ 111 ] As stated earlier, this case law illustrates the weighing of the various factors that courts must perform when no minimum sentence is required. [ 112 ] An overview of the case law reveals factual elements that are distinct from those in the present case and that in all likelihood influenced the sentence. [ 113 ] For example, in R. v.

Corbeil , [19] the Court of Appeal confirmed the fitness of a prison sentence in a case of fraud of more than $100,000 committed by an accused in a management position that allowed him to approve the false invoices, which were paid by cheques issued to a third party. The appeal was allowed, however, and a twelve-month prison sentence to be served in the community was substituted for the fifteen months of incarceration that the trial judge had imposed.

The Court noted that the accused: – pleaded guilty; – did not personally profit from the fraud; – benefited from a favourable pre-sentence report. [ 114 ] In R . v . Gauthier , [20] the Court of Appeal upheld an eighteen-month conditional sentence for fraud of $150,000 against the Government of Quebec. The Court took into account: – a [ translation ] "very favourable" pre-sentence report; – the guilty plea; – the shame and remorse expressed by the accused. [ 115 ] In R . v.

Toman , [21] the Court of Appeal dismissed the appeal from a decision of this Court imposing a conditional sentence of imprisonment of two years less a day for fraud of over $2 million. The accused pleaded guilty. Although the Court recognized that the sentence was lenient, it reiterated that the determination of a just and appropriate sentence falls within the judge's discretionary power and that care must be taken not to replace the discretion of one judge with that of another.

The circumstances of each case should also be taken into account. [ 116 ] In that case, the Court noted that the accused had not set up a system to defraud the public. [ 117 ] In R . v .

Samson , [22] this Court sanctioned an accounting secretary who committed fraud in the amount of $186,000 against her employer by sentencing her to a conditional sentence of two years less a day. [ 118 ] After noting that a conditional sentence [ translation ] "is generally not appropriate in the case of abuse of trust", the judge nevertheless decided that one should be imposed in this case, given the specific circumstances referred to in the pre-sentence report in particular, which tempered the pressing need to denounce the offence, such that a sentence other than incarceration was not inappropriate.

It should be specified that the accused had also admitted her guilt.

[ 119 ] In R . v . Véronneau , [23] this Court took into account the guilty plea, the psychological disorder that led to the fraud, the therapy undertaken, and the accused's remorse, to impose a conditional sentence of two years less a day for fraud totalling $100,000 (including some damages) against the companies for whose accounting she was responsible. [ 120 ] In R . v . Riopelle , [24] the accused admitted defrauding her employer of $11,616. She had repaid $8,191.15 by the time of sentencing.

A [ translation ] "very positive" pre-sentence report, the remorse she expressed, and fraud not motivated by greed were among the elements that led the judge to order a suspended sentence and conditions including 75 hours of community service. [ 121 ] R. v. Grondin [25] involved fraud of $195,000 committed by a financial services agent against her employer, a financial institution that obtained reimbursement of $177,000 under an insurance policy. The accused pleaded guilty. The pre-sentence report outlined a precarious psychological state and a problem with compulsive shopping.

The embezzled money was used for this purpose and to pay everyday expenses. Despite the objective gravity and the underlying motivation, the probation officer was of the view that the accused did not have a delinquent personality structure. [ 122 ] The Court considered these factors and found that a conditional sentence was sufficiently deterrent in the circumstances. [ 123 ] In R . v . Dumont , [26] the Court of Appeal set aside the trial judgment ordering the accused to serve ninety days' imprisonment and pay a fine of $1,500, substituting it with a sentence of nine months' imprisonment.

In this case, the fraud amounted to $30,000 and was obtained for third parties on the basis of false invoices in the context of a grant program put in place by the Ministère de l'industrie et du commerce du Québec.

Highly aggravating circumstance: at the time of the offence, the accused was already serving an eighteen- month conditional sentence for fraud. [ 124 ] Other, earlier decisions, rendered in 1996, 1999 and 2002, [27] before the amendment of the sentence for fraud, involved more lenient sentences. [ 125 ] This review of the case law makes it clear that sentences are adapted as a result of the application of the principle of the individualization of sentencing and the broad discretion in such matters enjoyed by the courts, who must nevertheless tailor the sentences to be proportionate with the gravity of the offence and the responsibility of the offender. [ 126 ] There is one common denominator to all of these cases: the objectives of denunciation and deterrence prevail over any other consideration. [ 127 ] Moreover, the public denunciation and media publicity of this case makes it all the more necessary to impose a deterrent sentence, in order to send an unequivocal message about the consequences awaiting any [ translation ] "malevolent" persons. [28] [ 128 ] The offence of fraud is not easy to prove when it is concealed behind apparently authentic documents whose author has the full confidence of the deceived person. [ 129 ] This case is one illustration.

It involves 144 documents, fictitious either entirely or in part, written by the defendant on blank restaurant receipts from various establishments in the province.

The handwriting and accounting expert reports, which examined a great many documents such as bank records, invoices, receipts and various statements that constitute the documentary evidence in the record, were the focus of the police investigation over a long period of time and therefore required the mobilization of significant resources derived from public funds. 4- conclusion [ 130 ] CONSIDERING the preceding findings; [ 131 ] CONSIDERNG the aggravating factors and the objectives of denunciation and deterrence that must prevail given the nature of the offences and the circumstances of their commission; [ 132 ] CONSIDERING the moral blameworthiness and elevated degree of responsibility that the defendant must bear; [ 133 ] CONSIDERING that the sentence submitted by the prosecution is within a range that is consistent with the case law in analogous situations, [29] even though in many of the cases cited there were guilty pleas, generally considered an attenuating factor, which is not the case here; FOR THESE REASONS, THE COURT: IMPOSES on Jocelyn Dupuis sentences of twelve months' imprisonment for the counts of fraud (count 1) and forgery (count 2); ORDERS that these sentences be served concurrently; ORDERS payment of the victim surcharge, in accordance with the law. _________________________________ DENIS LAVERGNE, J.C.Q.

Mtre Jacques Dagenais For the prosecution Mtre Jean-Daniel Debkoski For the defendant Date of hearing: November 13, 2014