2016 QCCQ 2082, 2016 QCCQ 2082

R. c. Dumais 2016 QCCQ 2082 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and penal division" No.: 500-73-004001-133 DATE: March 23, 2016 ______________________________________________________________________ PRESIDING: Mr. SERGE CIMON, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ THE QUEEN Prosecutrix v.

DAVID DUMAIS Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] David Dumais was convicted [1] of having failed to report the exportation of the amount of CAN$17,269.64, an offence set out at paragraph 74(1) (

a) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act . [2] [ 2 ] The Court must now impose the just and appropriate sentence that reflects all the elements of the case. BACKGROUND [ 3 ] On December 15, 2012, Dumais went to the Montreal-Trudeau airport to catch a flight to the Dominican Republic. He arrived at the last minute and went through the airport security control zone where his carry-on bag was scanned by the customs officials. He then went to the registration desk to present his boarding pass.

As he was walking up the boarding ramp to the plane, two customs officials stopped him for a checkpoint verification. When questioned, he acknowledged that he had an amount greater than CAN$10,000 on him. POSITIONS OF THE PARTIES [ 4 ] The prosecution recommends a fine of $3,300, noting that there are no mitigating factors that apply to the accused but that there are several aggravating ones. First, the accused shows no signs of remorse and has a long criminal record.

Also, the unreported amount is significant, and this is an objectively serious offence for which Parliament provides a maximum fine of $50,000 and six months’ imprisonment. [ 5 ] The accused is of the view that he has already been sufficiently punished for his actions and submits that a suspended sentence with probation would satisfy the ends of justice. First, he notes that the source of the money is legitimate.

Furthermore, he has sustained a net loss of $36,000 as a result of the confiscation of $17,269.64 and the fact that he still has to reimburse the $18,000 loan granted to him by his childhood friend, Charles Lapointe. In addition, he adds that he never lied to the customs officials or tried to hide the money when he was intercepted. Finally, he submits that the Court should bear in mind that there are few criteria governing the discretion of customs officials to give travellers a chance to comply with their reporting requirements.

THE LEGISLATIVE FRAMEWORK [ 6 ] The purpose of the Act is to implement measures to detect and deter money laundering and the financing of terrorist activities, to combat organized crime by providing those charged with applying the law with the information they need to deprive criminals of the proceeds of their criminal activities, to assist in fulfilling Canada’s international commitments to fight transnational crime and to enhance its ability to take measures to protect its financial system. [3] [ 7 ] Furthermore, the Act incorporates some of Canada’s international obligations, such as those arising from the recommendations adopted by the money laundering Financial Action Task Force (FATF), [4] into the domestic legal sphere.

Recommendation 32 on “cash

couriers” provides that countries should have measures in place to detect the physical cross-border transportation of currency, for example through a declaration system, and ensure that offenders are subject to effective, proportionate and dissuasive sanctions. [5] ANALYSIS [ 8 ] The sentencing judge must apply all the legitimate principles of sentencing to determine a just and appropriate sentence. [6] The main objectives of sentencing are set out at sections 718 et seq. of the Criminal Code . These objectives are: (

a) to denounce unlawful conduct; (

b) to deter the accused and other persons from committing offences; (

c) to separate the accused from society, where necessary; (

d) to assist in rehabilitating the accused; (

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

f) to promote a sense of responsibility in the accused. [ 9 ] None of these objectives takes precedence over the others and their importance depends entirely upon the facts of each case. [7] Furthermore, the Court must ensure that the sentence is proportionate [8] to the seriousness of the offence and the degree of moral responsibility of the accused. The sentence must also be individualized, take into consideration the sentences imposed for similar offences and the aggravating and mitigating factors of the case. 1.

SENTENCES IMPOSED FOR SIMILAR OFFENCES [ 10 ] There are few reported decisions dealing with sentences imposed for offences under subsection 74(1) of the Act . By way of indication, the prosecution filed a table listing various oral judgments rendered in similar cases. 1.1

SUMMARY CONVICTION PROCEEDINGS [ 11 ] In R. v. Georgiev , [9] the accused, a citizen of Bulgaria, tried to import US$50,982 via the Lacolle border crossing. When questioned by customs officials, he stated that he was not in possession of an amount greater than $10,000. A search of his vehicle, however, uncovered $20,000 in the glove compartment and $30,000 in a suitcase that the accused had tried to conceal from the customs officials.

Despite the relatively small amount of money, its legitimate source, the accused’s guilty plea, his lack of any criminal record, subsequent cooperation with the authorities and the absence of any indication that the amount was derived from criminal activity, Michel Bédard J. imposed a $5,000 fine. He reiterated the objectives of the Act , emphasizing the need to control cash movements into the country and the importance of sending a clear message to those who might be tempted to commit this type of crime.

The Court noted that this accused was a frequent traveller who was aware of the reporting requirement. [ 12 ] In R. v. Daniel , [10] the accused, a resident of Châteauguay, agreed to bring US$61,000 to New-York for the purchase of a vehicle adapted for a handicapped person. When he arrived at the Lacolle border crossing, he panicked for an unknown reason and failed to report the amount at issue. Further to a joint recommendation of the parties, Odette Perron J. granted him a conditional discharge with one year’s probation and the obligation to make a $5,000 donation to the Sainte-Justine hospital.

The parties had submitted that the accused acknowledged his mistake and pleaded guilty, had no criminal record, had five children, and that part of his family lived in New-York. Furthermore, he had a net income of $300 per week and a criminal record would have jeopardized his employment. Also, there was no reason to doubt the legitimacy of the source of the money. [ 13 ] In R. v. Ozcan , [11] the accused, a Montreal restaurant-owner, was intercepted at the Montreal-Trudeau airport with CAN$26,840 and US$25,210 in his possession.

First, he failed to report this money, and when questioned by customs officials, he did not state the exact amount that he had on him and in his bag. Furthermore, although it came from a legitimate source, the money was wrapped in aluminium foil. Acknowledging that he committed a serious error in judgment, the accused pleaded guilty and justified his actions by his desire to avoid paying the bank fees associated with the transfer of funds. Further to a joint recommendation by the parties, and taking into account the absence of any criminal record, Johanne White J. imposed a $5,000 fine. [ 14 ] In R. v.

D’Amico , [12] the accused was intercepted at the Montreal-Trudeau airport as he was about to leave the country. When questioned by the customs officials, he stated that he had only $7,000 on him. A verification revealed that he had CAN$7,960 on him and CAN$20,050 in a bag. When questioned again, he stated that he did not have any other money on him. The customs officials, however, found an additional amount of CAN$70,000 in his suitcase. Dominique Benoit J. sentenced him to four months’ imprisonment to be served in the community.

She noted that it was a joint recommendation and that the accused, who was forty years old, pleaded guilty and had health problems. She also noted the significant amount of money seized by the authorities and added that since the source of the money had not been established (the accused had projects in the Dominican Republic), this was a neutral factor. Furthermore, the accused had two prior convictions in other matters, and the pre-sentence report indicated that he trivialized his actions and had relaxed morals. [ 15 ] In R. v.

Ménard , [13] the accused was intercepted at the Montreal-Trudeau airport as he was getting ready to fly to the Dominican Republic. When questioned by customs officials, he declared that he did not have more than $10,000 in currency or monetary instruments in his possession. The customs officials, however, found CAN$52,770 in his luggage. Taking into account the accused’s guilty plea and the joint recommendation of the parties, Suzanne Bousquet J. imposed a $5,000 fine. [ 16 ] In R. v. Michaud , [14] the accused was intercepted at the Quebec City airport. When questioned by the customs officials, he

denied having $10,000 or more on him but admitted it during a secondary search. They found $10,000 in one of his pockets and $1,000 hidden in his shoes. The accused admitted to knowing that he was committing an illegal act. Because of the guilty plea entered upon his appearance and the joint recommendation of the parties, Pierre L. Rousseau J. imposed a $500 fine. [ 17 ] In R. v. Hysa , [15] the accused, an American citizen, was intercepted at the Lacolle border crossing. At first, he denied having more than $10,000 with him but a search revealed that he had US$44,210 in his possession.

He stated that it was his own money (salary / lottery winnings) and justified his actions by his desire to avoid paying taxes. Furthermore, he submitted two grounds to explain the importation of this money, namely the payment of a personal debt and wanting to give an amount to a friend who was opening a nightclub in Montreal. Further to the accused’s guilty plea, and in light of the joint recommendation of the parties, Michel Bédard J. imposed a $5,000 fine, payable immediately from the $8,000 bond filed into the record. [ 18 ] In R. v.

Suy , [16] the accused, a resident of Virginia who had previously lived in Quebec for several years, was questioned at the Lacolle border crossing while on his way to Montreal by bus. He claimed to have only $2,200 in his possession. During a secondary search of his luggage, the customs officials found three bundles of $20 bills, tied together with elastics, totalling $28,000.

The total unreported amount was US$30,528. [ 19 ] Because of the joint recommendation of the parties and the accused’s guilty plea, Éric Simard J. imposed a $5,000 fine, payable immediately from the $5,000 bond filed into the record. [ 20 ] In R. v. Lavigne-Lalonde , [17] the accused was intercepted at the Lacolle border crossing after having spent one day in the United States. She claimed that she was not in possession of $10,000 or more. The customs officials searched her automobile and found $3,150 in her purse and $21,000 in her double-bottom sports bag.

She then gave them false explanations as to the source of the money. After pleading guilty, the accused, who was twenty-nine years old, testified that she was the single mother of two young children and that she did not receive any assistance from their father. Furthermore, she had no criminal record and was trying to leave the cabaret scene by operating a resto-bar in Mont-Laurier. The prosecution sought the usual $5,000 fine.

The accused, who submitted that the fines imposed to date in similar cases represented about 10% of the unreported amount, asked for a fine of $2,500 instead. [ 21 ] To send a clear message to society, Michel Bédard J. disregarded this percentage system and imposed a $5,000 fine. 1.2 INDICTMENT PROCEEDINGS [ 22 ] In R. v. Champ , [18] the accuseds, Richard Champ and his passenger Cindy Montgomery, were intercepted at the Hemmingford border crossing. Questioned by customs officials, they denied being in possession of more than $10,000.

During the search of their vehicle, customs officials found US$501,090 in a hockey bag. The accuseds admitted acting as couriers, being paid $3,000 per trip, and having made three previous trips. Although they were not aware of the exact amount they were carrying, they knew that it was a significant amount. Champ had the contacts and was actively involved in transporting money, while Montgomery’s role was merely to deflect suspicion. Champ was sixty years old, suffered from serious back problems and had a low income. Montgomery was fifty years old and did not work much anymore as a result of her fibromyalgia.

Neither had a criminal record, and the risk of re-offending was nil. [ 23 ] Taking into account all of these facts, the guilty pleas of both accuseds, and the joint recommendations of the parties, Michel Mercier J. sentenced Champ and Montgomery to eighteen and twelve months’ imprisonment, respectively, to be served in the community, with one year’s probation. [ 24 ] In R. v. Tang , [19] the accused was intercepted at the Montreal-Trudeau airport as she was about to leave for Mexico. She failed to report the US$770,250 that she had in her suitcase. Jean B.

Falardeau J. did not accept her assertion that she was transporting this amount at the request of unknown individuals and under threat of reprisals against her family. He sentenced her to eighteen months’ imprisonment. [ 25 ] On appeal, the Court of Appeal replaced this sentence with eighteen months’ imprisonment to be served in the community. The Court of Appeal noted the clear distinction between the offence under

section 74 of the Act and the one under

section 462.31 of the Criminal Code . Since the Act does not provide any presumption of the illegal nature of the source or destination of the unreported amounts exceeding $10,000, the prosecution has the burden of proving these aggravating factors. [ 26 ] Furthermore, despite the objectives of denunciation and general deterrence, the Court of Appeal noted that the accused pleaded guilty, that she was only twenty-seven years old when she committed the offence, had no criminal record, was ashamed of her actions, and that her conduct since then had been beyond reproach.

In addition, her pre-sentence report was relatively favourable and indicated that she had changed her financial habits. [ 27 ] In R. v. Russell , [20] the accused, an American citizen, was intercepted at the Lacolle border crossing. When questioned by a customs official, he stated that he was going to visit his girlfriend in Montreal and that he did not have more than $10,000 in his possession. A search of his car revealed an envelope containing bundles of American money hidden in a sports bag.

When questioned again by a customs official, the accused stated that he had about $300,000 and that it was his life savings as well as those of his father and brother. The customs officials found another amount of money hidden in another suitcase. In all, the accused failed to report US$419,467. [ 28 ] The prosecution acknowledged that it did not prove that the accused was connected to a criminal organization or that the money came from an illegal source. It added that the risk of re-offending was low but that the amount at issue was significant, and the accused showed neither shame, nor regret.

It would have sought a prison sentence of fifteen months to be served in the community, but given the accused’s refusal to remain in Canada, it instead sought a sentence of twelve months’ conventional imprisonment less time served in preventive custody. [ 29 ] The accused suggested a two months’ prison sentence and a $2,500 fine or a donation equivalent to that amount. He argued that he was forty-two years old, that he had stable employment that provided him with an average of $700 per week, and that he lived in Florida with his twelve year old daughter, of whom he had custody.

Furthermore, he did not have a criminal record, had always complied

with the conditions of his release, had deposited a $15,000 bond, and had to spend $1,000 for each of his nine appearances in Court. In addition, he added that his mother died while he was still in preventive custody. [21] [ 30 ] Taking into account the submissions and the principles set out in Tang , Michel Bédard J. sentenced him to twelve months’ imprisonment, less double the time served in preventive custody. The accused thus had to serve 129 days in prison. [ 31 ] In R. v. Kamar , [22] the accused was intercepted at the Lacolle border crossing.

Claude Provost J. sentenced him to twelve months’ imprisonment to be served in the community, taking into account the amount at issue, the common position of the parties that the accused deserved a conditional sentence, was forty-four years old and had no criminal record, his family lived in the United States, and his risk of re-offending was low. [ 32 ] This analysis of the case law reveals that the courts prioritize the objectives of denunciation and deterrence, [23] while generally sentencing offenders to fines of $5,000 in

summary prosecution proceedings and to twelve to eighteen months’ imprisonment to be served in the community in cases of prosecution by indictment. [ 33 ] The Court’s discretion is fettered in part by the ranges set out in the case law. These ranges are guidelines, however, not hard and fast rules. [24] 2. RELEVANT AGGRAVATING AND MITIGATING FACTORS 2.1 THE SOURCE OF THE MONEY [ 34 ] The Court considers the legitimate source of the money to be a neutral factor.

In cases where the prosecution establishes that an accused is acting as a courier for a criminal organization or establishes the illegal source of the money, however, it would constitute a significant aggravating factor. [25] [ 35 ] In the present case, there is no basis to dismiss the accused’s explanations that the money came from a loan granted by a childhood friend.

The accused was not contradicted on this point and the prosecution did not ask the lender any questions. 2.2 THE AMOUNT UNREPORTED [ 36 ] Case law has established that the greater the amount of money at issue, the more it constitutes an aggravating factor. [26] The amount of CAN$17,269.64 that the accused failed to report is one of the lowest identified to date by the Quebec courts. 2.3 THE ACCUSED’S COOPERATION [ 37 ] The Court acknowledges that true cooperation with the authorities is a mitigating circumstance.

The fact that the accused reported to the customs officials that he had more than CAN$10,000 in his possession, however, constitutes a neutral factor, especially since he initially reported having CAN$14,375, although he actually had CAN$17,269.64 on him. [ 38 ] In addition, it should be remembered that the Act is based on the principle of self-reporting and that everyone has a duty to tell the truth. [27] The accused’s declaration was made in the context where the discovery of the money seemed inevitable. [28] It is common ground that lying, diverting custom officials’ attention, and trying to hide the offence constitute aggravating circumstances. [29] 2.4 THE ACCUSED’S AGE AND EXPERIENCE [ 39 ] At the time of the events, the accused was thirty-four years old and had already flown internationally on eight occasions between April 2008 and November 2012.

He is a mature man who has personal experience with international air travel. 2.5 THE ACCUSED’S STATE OF HEALTH [ 40 ] Barring exceptional circumstances, the accused’s poor health does not in itself constitute a decisive factor in sentencing. [30] [ 41 ] The accused has been in remission from cancer since October 2015.

He works as a mechanic and rents motorcycles in the Dominican Republic. 2.6 THE ACCUSED’S CRIMINAL RECORD [ 42 ] The accused has a long criminal record, both as a young person, [31] and an adult. [32] Accordingly, the Court must prioritize deterring the accused. 2.7 THE ABSENCE OF A GUILTY PLEA [ 43 ] A trial was held in this case.

The fact that the accused insisted on a trial does not constitute an aggravating factor [33] but causes him to lose the significant mitigating factor that a guilty plea would have been. [34] 2.8 THE ACCUSED’S LACK OF REMORSE [ 44 ] During his testimony, the accused emphasized the fact that there are still no signs or warnings in airports clearly indicating to travelers that they are required to report any amount of CAN$10,000 or more.

Furthermore, as the prosecution noted, the accused never expressed any remorse or showed that he was taking responsibility for his actions. [ 45 ] The absence of remorse does not constitute an aggravating factor; it does, however, deprive the accused of a mitigating circumstance. [35] Furthermore, an attitude that shows a denial of responsibility and victimization may be considered an aggravating factor. [36]

2.9 THE SEIZURE OF THE MONEY BY CUSTOMS OFFICIALS [ 46 ] The Court finds that in the present case, the seizure of CAN$17,269.64 does not constitute a mitigating factor. [ 47 ] First, the accused did not allege that he was the victim of an arbitrary seizure by the customs officials. [ 48 ] Second, accepting the accused’s submission would be tantamount to allowing him to plead his own wrongdoing and would lead to an absurd result.

Indeed, anyone caught red-handed could then invoke that the unreported amount is lost to them as a mitigating factor. [ 49 ] Third, the Court finds that it will not interfere with the jurisdiction expressly granted by the Act to the Minister of Public Safety [37] or the jurisdiction of the Federal Court. [38] FOR ALL THESE REASONS, THE COURT: SENTENCES the accused to pay a fine of $3,300; GRANTS him six months to pay that amount. __________________________________ Serge Cimon, Presiding Justice of the Peace Mtre Thi Trang Dai NGUYEN Crown prosecutor Public Prosecution Service of Canada Mtre Pierre JOYAL Counsel for the defendant Brouillard, Bibeau, Gariepy & Associés Date of hearing: December 10, 2015