2021 QCCQ 8306, 2021 QCCQ 8306

R. c. Russo 2021 QCCQ 8306 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF Montreal Criminal and Penal Division N o : 500-01-200417-209 ; 500-01-200225-206 500-01-198605-195 ; 500-01-200226-204 DATE: September 8, 2021 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE MANLIO DEL NEGRO J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

FRANCO RUSSO Accused ______________________________________________________________________ REASONS FOR SENTENCE ______________________________________________________________________ [ 1 ] On March 9, 2021, the offender entered guilty pleas to multiple charges of fraud, impersonating other persons, use of forged documents, simple possession of

Schedule I controlled substances and possessing identity documents that relate to another person

Section 56.1 C.cr . I. CIRCUMSTANCES OF THE OFFENCES i. File: 500-01-198605-195 [ 2 ] Offender entered guilty pleas to 18 counts relating to fraud, and impersonating other persons (identity theft), and the use of forged documents. [ 3 ] According to the agreed statement of facts, the offender used the identities of 14 individuals for the purpose of perpetuating fraud.

After stealing their identities, the offender would use these identities to withdraw substantial sums of money from the victim’s bank accounts. [ 4 ] In all, these transactions totalled $76,973, but not all of the transactions were authorized by the financial institutions that the offender had chosen to fraud. [ 5 ] This said, the total loss for the financial institutions for the above transactions was confirmed to be $66,573. ii.

File: 500-01-200417-209 [ 6 ] The offender entered guilty pleas to three counts relating to fraud and impersonating other persons (identity theft). [ 7 ] The offender appropriated himself of the identities of individuals to then attempt to withdraw funds from the victim’s bank accounts with forged debit cards. [ 8 ] In this case, the offender did not succeed in withdrawing any funds as the teller was able to recognize that the bank card was a forgery. [ 9 ] The offender was arrested and released on a promise to appear on August 20, 2019. [ 10 ] This did not deter the offender as he subsequently reoffended in October-November 2019 for other offences relating to incidents included in file no.: 500-01-198605-195. iii.

Files: 500-01-200226-204 and 500-01-200225-206 [ 11 ] These offences occurred in the judicial district of Laval but were then waived to the judicial district of Montreal for the purpose of entering a plea by virtue of

section 479 C.cr . [ 12 ] Following a traffic stop, the offender was found to be in possession of forged identities, namely documents bearing his picture. Following his arrest, two capsules of

Schedule I Controlled Substances were found in his possession following a search incident to his arrest.

II. THE POSITION OF THE PARTIES i. Position of the prosecution [ 13 ] On behalf of the Crown, Me Daigneault submitted that a sentence of 15 months incarceration be imposed for the entirety of the cases before the court. [ 14 ] The Crown takes the position that notwithstanding the mitigating effects of the guilty pleas, the principals of deterrence both individual and general and of denunciation are the primary factors that the Court should consider in levying appropriate sentences for these cases. [ 15 ] In her submission, Me Daigneault stressed that this was a sophisticated, well-planned criminal enterprise. [ 16 ] She referred to the statutorily aggravating factors provided by

section 380.1 C.cr ., specifically the following factors: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (

b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market; (

c) the offence involved a large number of victims; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation. [ 17 ] The losses incurred by the various financial institutions totalled $66,573. The offender participated in 23 transactions by making or attempting to make 29 withdrawals or attempts of withdrawals in various financial institutions. In total, 14 victims had their identities stolen. The prosecution stressed that the repercussions of having one’s identity stolen are significant.

Although no evidence was made about the consequences for the victims, it is reasonable to infer that having one’s personal identification information stolen causes adverse consequences. For example, financial loss, and loss of credit worthiness that may continue over many years. Also, the obvious inconveniences of having to reset all of your personal data involving banking, pass codes, government issued documents and social insurance identification.

Furthermore, the reissuance of Medicare cards and one’s driver licence are equally time-consuming and annoying. [ 18 ] Crown counsel pointed out that even after his arrest took place on August 6, 2019, in Laval, the offender reoffended again before being arrested and brought to justice for all of the charges in the foregoing files. ii.

Position of the defence [ 19 ] Defence Counsel, Me Morena, submitted that the participation of the offender should be considered as not being, what is often said colloquially as “ the boss behind the operations ”, but rather as the “ patsy ” for the criminal enterprise engaged in this highly sophisticated fraudulent scheme. [ 20 ] The Crown did not stand up to dispute this fact. [ 21 ] Just like the Crown must prove the aggravating factors beyond any reasonable doubt; the Defence must prove mitigating ones on a balance of probabilities. See

Section 724. (3)(d) (

e) C.cr . . There is no presumption with respect to these factors. [ 22 ] That said, no evidence was submitted in establishing what the offender’s role was.

Other than counsels’ submission that he was responsible for conducting the banking operations involved in the fraudulent scheme with forged documents belonging to unsuspecting victims bearing his picture, no evidence was tendered to explain his actual status within the criminal enterprise. [ 23 ] Defence counsel submission is that the offender was “ forced into ” participating in this fraudulent scheme by the others who were the so-called “ brains of the operations ” and that his involvement did not carry any significant weight in the circumstances of the commission of the various offenses. [ 24 ] This said, defence counsel’s argument about the offender’s participation as being, colloquially speaking, “ at the bottom of the ladder ” within the criminal organization, serves as a double-edged sword as

section 718.2 (iv) C.cr . , states that “ a Court shall take into consideration as an aggravating factor that the offence was committed for the benefit of, at the direction of or an association with a criminal organization. ” [ 25 ] Defence counsel submitted correctly that the offender’s plea should be considered as a mitigating factor on sentence. [ 26 ] Me Morena asked the Court to consider that the offender’s prospects of rehabilitation are positive and points out the following passage of the pre-sentence report (PSR) which emphasises the offender’s likelihood of reoffending as being moderate: “ il possède un bon potentiel de réinsertion sociale et s’avère capable d’auto critique.

Lors des deux dernières années, il semble avoir respecté ses engagements…Nous évaluons le risque de récidive comme étant modéré ”. [1] [ 27 ] Defence counsel argued that the Court considers an intermittent sentence in order to allow the offender to continue providing care for his daughter who has been fighting a recurring battle with cancer. [ 28 ] Lastly, the offender has expressed remorse for his criminal conduct. III. THE CIRCUMSTANCES OF THE OFFENDER

[ 29 ] In the pre-sentence report, the probation officer assessed the offender’s personal situation as being fraught with difficulties in most aspects of his life: family relations, educational, occupational, interpersonal skills, addictions (illicit substances and alcohol) and finally his numerous emotional issues. [ 30 ] The offender has been convicted in the past for criminal activity involving the possession and production of illicit substances; breaching conditions of his bail and the negligent storage of a firearm.

For the offences of having produced cannabis in 2010, the offender was sentenced to a 20-month term of imprisonment. [ 31 ] Although the offender assumes responsibility for his actions, he nonetheless minimizes the role he played in the commission of the offences for which he pleads guilty to. [ 32 ] The probation report states that the offender expresses remorse for his crimes. [ 33 ] The offender puts forth that his dire financial situation following the loss of his employment after back surgery as the major contributing factor in pursuing his criminal activities for financial gain. [ 34 ] The pre-sentence report [2] discusses the offender’s situation as follows: “ Ces infractions ont un caractère lucratif, furtif et prémédité ” “ Selon nous, l’origine de sa récidive se retrouve des ennuis financiers et professionnels, un code morale laxiste et le maintien de ses fréquentations déviantes ” “ …son parcours trahit un penchant hédoniste, une attirance envers la facilité, un certain laxisme moral et une appétence pour la prise de risque.

Ayant longtemps évolué à côté des pairs déviants, il a succombé à plusieurs occasions à l’appât du gain et s’est impliqué dans des activités criminelles. Des difficultés à résister aux pressions du milieu criminel, une importante expérience d’impunité, le fait d’avoir déjà retiré des bénéfices substantiels de son implication illégale ont probablement contribué à sa récidive ” [ 35 ] I will allow myself to say that the most positive element discussed in the pre-sentence report is the help the offender offers his daughter who is battling cancer.

That said, for the most part, a substantial portion of the pre-sentence report is underwhelming and generally does not reflect favourably on the offender. IV. PRINCIPALS OF SENTENCING [ 36 ] It is a cliché to say that crafting an appropriate sentence “is far from being an exact science or an inflexible predetermined procedure… The trial judge enjoys considerable discretion because of the individualized nature of the process.

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament.” [3] [ 37 ] As Gendreau J. explained in R. c. S.T . [4] , sentencing is a difficult and delicate task: “Sentencing is arguably one of the most difficult and delicate tasks of the judiciary.

Indeed, finding and applying the fairest and most equitable standard for the accused while manifesting the appropriate social disapproval and ensuring the protection of society is a complex balancing exercise since it tends to ensure a balance between values which, without opposing each other, have different objectives.” [ 38 ]

Section 718 C.cr . sets out the fundamental purpose and objectives of sentencing: 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) to separate offenders from society, where 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 or to the community. [ 39 ] Moreover, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 C.cr .). The proportionality principle requires that the punishment imposed be “just and appropriate, and nothing more” [5] . [ 40 ] A sentence may be increased or reduced to account for any relevant or mitigating circumstances ( s. 718.2 C.cr .). [ 41 ]

Section 718.2 codifies the principle of restraint in sentencing, mandating that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to

victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 42 ]

Section 718.2 (

d) and (

e) combined with

section 718 (f) (promotion of responsibility in offenders, and acknowledgment of the harm done to victims and the community) embody the concept of restorative justice. [ 43 ] In a relatively recent book on sentencing, Sentencing : Principles and Practice , the authors express themselves as follows concerning the principle of restraint:

Section 718.2(

d) and (

e) go beyond merely codifying the principle of restraint that may have existed in the common law prior to their enactment. They are remedial in nature and “specifically enacted, along with s. 742.1, to help reduce the rate of incarceration in Canada.”

Section 718.2 (

d) and (

e) together with 718 (f) (promotion of responsibility in offenders and acknowledgment of the harm done to victims and the community) embody the concept of restorative justice. “Restorative justice involves some form of restitution and reintegration into the community … do not usually correlate with the use of prison as a sanction.” The Supreme Court has concluded that through the enactment of these provisions, Parliament has indicated its intention to “expand the parameters of the sentencing analysis for all offenders.” Judges are being encouraged by Parliament to be creative and look for ways to achieve the sentencing objectives without jail.

However, even creativity must be tempered with restraint . […] [6] [References omitted] V.

THE RANGE OF SENTENCE [ 44 ] In Traité de Droit Criminel tome III, La Peine, 2e édition , professors Hugues Parent and Julie Desrosiers , deem that for cases involving fraud of moderate importance, sentences vary from 8 to 12 months’ imprisonment with sentences reaching 26 months in some cases [7] . [ 45 ] The offence of identity theft and credit card offences have been discussed thoroughly by my colleague Judge Galiatsatos in the case of Edugie [8] affirming that: “Theft, forgery and credit card offences are all within the same family of fraudulent conduct.” [ 46 ] The case at bar involves 14 thefts of victims’ identities, 29 withdrawals or attempts at withdrawals in various financial institutions over a 5-month period resulting in a cumulative loss of $66,573.

Recently in the case of R . c. Koto [9] , Judge Costom expresses herself as follows regarding the offence of identity theft : “les infractions reliées au vol d’identité doivent être punies sérieusement puisqu’elles sont un fléau causant des torts importants aux victimes et à la société en général” [ 47 ] Also, I entirely endorse the following comments expressed by Judge Marchi concerning the offences of identity theft and the use of forged documents in R . v.

Khalladi , 2015 QCCQ 719 : [29] De la même façon, le vol d'identité et la production et l'utilisation frauduleuse de cartes de guichet et de cartes de crédit sont aussi des phénomènes grandissants qui sont devenus, au fil des ans, une très grande préoccupation pour les autorités, au point d'entraîner des modifications importantes au Code criminel , notamment par l'introduction de nouvelles infractions. [30] Comme l'écrivait le juge Dunnigan, de la Cour provinciale d'Alberta, en 2011 : [...] identify theft, fraudulent credit card production and fraudulent production of government identification are both prevalent and damaging to our society; [31] La perversité de ce type d'infractions réside notamment dans le fait que la perte pour chacun des consommateurs pris individuellement peut sembler minime mais au total, il s'agit de moyens qui entraînent des pertes considérables non seulement pour l'ensemble des consommateurs, mais aussi pour les institutions financières qui, on peut le supposer, n'absorbent pas seules les pertes encourues mais dont une

partie à tout le moins est supportée par les consommateurs eux-mêmes. Bref, en bout de ligne, c'est l'ensemble de la collectivité qui est en fait la vraie victime. Ou comme l'écrivait le juge Stevenson dans l'affaire Naqvi : […] The immediate victims are the seven financial institutions.

The longer-term victims through bank charges and interest rate increases are those who use these institutions for their commercial activities. [32] C'est sans doute l'une des raisons qui ont amené les tribunaux à privilégier, dans ces circonstances, les objectifs de dénonciation et de dissuasion dans l'imposition de la peine pour ce type de crime. [33] De plus, comme le rappelait mon collègue le juge Dumais dans l’affaire de R. c.

Cases , et comme le démontre éloquemment la preuve dans la présente affaire : […] c'est une activité de groupe qui demande un haut degré de matériel et une planification organisée, qui est structurée et organisée et dont les gens s'aident entre eux pour arriver à une fin commune. [...] il s'agit d'une haute – d'une culpabilité morale importante puisque ça demande des connaissances et une habileté particulière pour commettre ce type de crime. […] c'est un potentiel de profit important parce qu'on peut frauder facilement ou on peut frauder à la fois les institutions bancaires ainsi que les consommateurs, les clients. [ 48 ] The moral blameworthiness of the offender should be considered significant as his behavior was premeditated and driven by the lure of quick and easy money.

The repetitive nature of his conduct, his prior convictions, and the significant financial losses sustained by the victims are all aggravating factors.

[ 49 ] Considering all the foregoing factors, I have come to the conclusion that a proper and just sentence for the offender is a period of incarceration of 12 months, followed by a probation of 30 months. FOR THESE REASONS, THE COURT: For file: 500-01-198605-195 : CONDEMNS the offender to serve a term of imprisonment of 12 months for each count and directs that this sentence to be served concurrently between each count; For file: 500-01-200417-209 : CONDEMNS the offender to serve a sentence of 60 days for count No. 1 and to a sentence of 6 months for counts No.: 2-4.

Directs that these sentences are to be served concurrently between each count and concurrently with the sentence levied in file no: 500-01-198605- 195. For file: 500-01-200226-204 : CONDEMNS the offender to a term of imprisonment of 30 days to be served concurrently with the sentences levied in files No.: 500-01- 198605-195 and 500-01-200417-209; For file: 500-01-200225-206 : CONDEMS the offender to a term of imprisonment of 60 days to be served concurrently with the sentences levied in files No.: 500-01- 198605-196, 500-01-200417-209 and 500-01-200226-204.

DIRECTS that the offender comply with the following conditions of a probation order for a period of 30 months: 1. Keep the peace and be of good behavior; 2. Abstain from having in his possession any identification cards, debit cards, credit cards, checks or other negotiable documents in any name other than his own. 3. Abstain from having in his possession any credit card numbers or social insurance numbers, driver’s licenses, medical insurance cards other than the ones that have been lawfully issued to him; 4.

Abstain from possessing any skimmers or other devices capable of reading, copying or writing credit or debit card numbers; 5. Abstain from possessing any stampers or embossers; 6. Abstain from possessing any blank card suitable for creating credit cards, debit cards or identification cards; 7. Abstain from possessing any electronic template suitable for creating debit cards, credit cards or identification cards; 8. Abstain from possessing any lamination device or other equipment capable of producing identification cards; 9.

Abstain from using, or even installing on his computer or tablet, graphic design software, including but not limited to the following programs/applications: − Adobe Photoshop; − Adobe Illustrator; − GIMP; − AutoCAD; − Inkscape; − Corel Draw; − Adobe InDesign; − Serif Drawplus; − Xara Xxtreme; − Corel Printshop and Paintshop; − Corel PhotoImpact; − Cyberlink; − Sumo paint; − Vector;

− Google Sketch-Up; − Affinity Designer; − ACDSEE Photo Editor. DISPENSES with the payment of the victim surcharge (section 737(2.1) C.cr.) for all of the above-mentioned files. ________________________________ MANLIO DEL NEGRO, J.C.Q.Me Sarah-Audrey DaigneaultFor the prosecution Me Louis Peter MorenaFor the accused Date of hearing: March 22 and May 12, 2021 [4] 2007 QCCA 1447 at para 14. [5] R v M. (C.A.), (SCC), [1996] 1 SCR 500 at para 80.