r v. Aroon AIMEN, 2019 QCCQ 3698

R. c. Aimen 2019 QCCQ 3698 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Criminal Division No: 500-01-172283-183 DATE: June 19, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v.

Aroon AIMEN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On November 22, 2018, the accused pleaded guilty to the following charges: • Between December 15, 2016 and February 23, 2017, possession and use of credit cards knowing that they were obtained by the commission of an offense in Canada (count 2). • Between December 15, 2016 and February 23, 2017, identity fraud, that is fraudulently impersonating another person with intent to obtain any property or interest in any property (count 3). • On or around February 23, 2017, being in possession of an apparatus which he knew was intended to be used in forging or falsifying credit cards (count 5). [ 2 ] A sentencing hearing was held on May 31, 2019. [ 3 ] The prosecution deposited three exhibits.

S-1 is an affidavit from the Scotiabank which indicates that it suffered $2,067.36 in losses as a result of the matters forming the basis of the charges for which the accused pleaded guilty. S-2 and S-3 are affidavits from Tangerine bank and include the transaction records for the cards associated with Maxime Plante and Heliya Mirshahi, the individuals refered to in count three. The losses suffered by Tangerine amount to $8,176.73. [ 4 ] The defence deposited, as exhibit SD-1, a criminological evaluation prepared privately by criminologist Jonathan Lambert.

The accused testified as did his brother. [ 5 ] The prosecution suggests that the Court suspend the passing of the sentence and impose a probation for a period of 3 years, the first with follow-up. In addition to the mandatory conditions, the prosecution requests that the accused be required to reimburse the victims and to perform 240 hours of community work. [ 6 ] The defence pleads that the accused should benefit from a conditional discharge, subject to the same conditions as those recommended by the prosecution.

THE FACTS [ 7 ] The facts were related succinctly at the time that the accused entered his guilty pleas. [ 8 ] At the beginning of 2016, an investigation began in relation to a number of cases of identity theft at Concordia University. “Keylogger” equipment was found on university computers. These apparatus capture the information typed onto a keyboard including personal information of some students. [ 9 ] The accused became a suspect and in approximately January 2017, investigators began following him.

During the course of their surveillance, investigators observe the accused going to his home and also to 65 Brunswick Road, suite 201, in Dollard des Ormeaux. The investigation also reveals that a certain quantity of mail is redirected to this address. In addition, investigators learn that the lease for this space is in the name of the accused. [ 10 ] On February 2, 2017, the accused is observed going to an ATM and using a Tangerine credit card in the name of Maxime Plante. Further research is done and the police learn that as of February 13, $5000 has been drawn against this card. Mr. Plante is contacted and

states that he is not a client of Tangerine and that he had never opened a Tangerine bank account. [ 11 ] On February 7, the accused is observed at another ATM using a debit card in the name of Heilya Mirashahi. It is subsequently revealed that as of February 13, $3 000 has been drawn against this card. As was the case with respect to Mr. Plante, when contacted Ms. Mirashahi states that she is not a client of Tangerine and never opened an account. [ 12 ] Search warrants are obtained for the home of the accused as well as his car and the premises situated at 65 Brunswick Road.

Nothing is found at his home or in his car.

However, at 65 Brunswick Road, suite 201, the following evidence is found: • $500 in a knapsack. $464 is also found on the accused, who is on the premises at 7:08 AM when investigators arrive to execute the search. • An encoding machine with 20 blank cards containing magnetic strips, as well as 2 computers equipped with the software to encode the blank cards. • 11 credit cards and debit cards as well as 3 gift cards in the names of 9 different individuals. ° One of these cards was from Scotiabank in the name of Lucien Lacroix. $1981 was withdrawn against this card between February 17 and 23.

The accused is seen withdrawing $400 against this card on February 21 st 2017. When contacted, Mr. Lacroix declares that he never requested the credit card in question. ° No amounts had been withdrawn against the other cards, however, there was one account which had a balance of $190 which had been deposited at an ATM on December 7, 2016. This is generally the first step in the process – depositing money to establish credit. • Other unused computer equipment, hard drives, USB keys and laptop computers are also found. THE ACCUSED The criminological evaluation [ 13 ] Mr. Lambert met with the accused three times.

He met with the mother of the accused, and spoke on the phone his wife and his brother. He also consulted a number of documents which were made available to him by the defence. [ 14 ] The report contains extensive background information about the accused. In it, we learn that the accused lived with his parents and three siblings in Afghanistan until he was 13, at which time the children and their mother came to Canada and claimed refugee status. He adapted well to life in Canada, both socially and academically. He is now 32 years old and has no criminal record. He has been a Canadian citizen since December 2007.

He and his wife live in Laval. They do not have any children. The accused has been working for CN since June 28, 2018. [ 15 ] After finishing high school the accused attended John Abbott College and began working part-time. After taking a year off school to work full time, in September 2008 the accused began his studies at Concordia University, all the while continuing his part-time job doing deliveries for restaurants. He changed programs a number of times but in May 2015 he received a Bachelor of Commerce with a major in accounting.

In 2014, he also obtained his RBQ [1] permit to work as a general contractor. [ 16 ] Around that time, the accused and a friend founded a company. They rented space. They hoped to build townhouses and a community centre but unfortunately the projects never worked out. The accused lost approximately $4000. [ 17 ] By the end of 2015 or beginning of 2016, the accused and his business partner broke up. He tried to make ends meet by becoming an Uber driver and sending out his CVs to a number of different companies. He kept the space that he had rented in the hopes of eventually finding clients.

It was at that time that he met other individuals who had rented in the same building. [ 18 ] These individuals sold him personal information which he could use to request bank cards. In addition to paying for the information, he was to give the people from whom he bought the information a percentage of the money gained by using the cards. He was also asked to store some of the equipment used to create the fraudulent cards in his space. He accepted without asking too many questions. [ 19 ] The accused was arrested in February 2017. He became somewhat depressed.

At the beginning of 2018, he began actively looking for a job again and in June 2018, he was finally hired by CN where his brother works. Since then, he has been working full time, earning an annual salary of $60,000. He works in logistics. He is happy at work and has a good relationship with his colleagues and his bosses. Eventually, he would like to transfer into the accounting department. According to his brother who works in that department, this project is realistic. [ 20 ] In September 2018, the accused met his wife. It was the Imam at the mosque he was attending regularly who set them up.

In fact, the wife of the accused is the sister of the Imam. She was teaching high school science in British Columbia when the couple met. The couple married in December 2018 and she moved to Québec. She hopes to get her teaching degree in Québec. [ 21 ] The wife of the accused is aware of the present charges. The accused does not drink or use drugs. He has no psychiatric history. [ 22 ] In 2017, the accused was diagnosed with multiple sclerosis. Although he was initially discouraged upon receiving this diagnosis, he has changed his diet and began working out. He has also found comfort in his religion.

His medical condition is considered stable. His wife is unaware of his condition. [ 23 ] Mr. Lambert notes that he accused does not try to cast aside his responsibility for his actions. While he says that he himself was not the person who stole personal information, he recognizes his responsibility for the offenses for which he pleaded guilty.

[ 24 ] According to Mr. Lambert, the accused is introspective and is able to identify the factors which led to the commission of the offenses. In particular he points to his financial difficulties and his feelings of isolation at the time of the commission of the offenses. [ 25 ] Furthermore, the accused is repentant and is able to identify the consequences of his crimes. He understands the social impact of his actions, as well as specific impact on the individual victims. [ 26 ] It is the opinion of Mr.

Lambert that the shame expressed by the accused in relation to his behaviour is sincere. [ 27 ] The accused does not have pathological or antisocial values. [ 28 ] The crimes were financially motivated. The accused was provided with the opportunity to commit a crime and made a bad judgment call. This was during a difficult time both professionally, as well as physically as the symptoms of his multiple sclerosis were just emerging. He had no money and no prospects for work. He had credit card debt and $20,000 in student loans which needed to be reimbursed. [ 29 ] Mr.

Lambert surmises that the accused may have been suffering from some sort of undiagnosed mood disorder at that time. [ 30 ] Finally, in terms of his prognosis for the future, Mr. Lambert underlines that the accused is educated and has the cognitive capacity to face adversity. He comes from a good family with prosocial values who he can count on emotionally and also for his material needs if necessary. He has no prior record and does not consume drugs or alcohol. He now has a good job as well as job security. He has a wife who supports him morally and financially.

The practice of religion is central for both members of the couple. Spirituality has provided the accused with comfort and enabled him to get through this difficult time in his life. The accused must be sure to stay away from people with antisocial values as this would be a risk factor for him. [ 31 ] Mr. Lambert also mentions that the criminal proceedings have had a significant dissuasive effect on the accused. [ 32 ] For all of these reasons, the risk of recidivism is low. The testimony of the accused [ 33 ] The accused began by expressing regret for having committed the crimes for which he pleaded guilty.

He is ashamed and humiliated. He did not plan to get involved in criminal behaviour and explained that it was a combination of factors that led him to “stray”. [ 34 ] He was going through tough financial times and crossed paths with the wrong people. He had been unable to find a job and felt that everybody around him was advancing while he remained isolated and unsuccessful. His health was “also playing tricks on him” and it was then that the symptoms of the multiple sclerosis which was eventually diagnosed were first manifesting. [ 35 ] His life is now much more under control.

He has a good job and has paid off his debts. His health is under control. He watches his diet, he exercises and he avoids stress. [ 36 ] He just got married which provides him with company and also a sense of responsibility. [ 37 ] His brother is very involved in his life as a mentor. He is present in Court with him today. His wife is not present because although she is aware of the situation he felt uncomfortable having her in Court. [ 38 ] He hopes to advance in his job, as CN has a lot of opportunities for mobility.

He is currently completing his last prerequisite to be eligible to take the course leading to his professional accounting designation (CPA). His employer contributes $5000 a year towards his education. [ 39 ] His employer is not aware of the present charges. [ 40 ] The accused wishes to avoid the creation of a criminal record as this will necessarily affect his ability to become an accountant.

It is likely that he will have to travel to the United States as he progresses through CN and a criminal record will make this difficult as well. [ 41 ] The accused is willing to do whatever is necessary to avoid the creation of a criminal record. He is willing to reimburse the victims, although he was not the only one involved in the commission of the offenses and is not responsible for all of the losses.

To the extent that the community work he is assigned to do could accommodate his health challenges, he would be happy to do community work as well. [ 42 ] The accused was cross-examined on his precise role in the commission of the offenses. He mentioned that he mainly purchased big ticket items using fake credit cards. He mentioned electronics, a PlayStation, and brand-name clothing. [ 43 ] The accused gave the items to “Jon and Alex” - the two individuals who worked in his building who had sold the personal information to him and provided him with the fake cards. Jon and Alex in turn sold the goods.

The accused also sometimes withdrew small amounts of money from banks. The arrangement was that he was to get one third of the profits while they were to get two thirds. He is not sure how much money he pocketed in total. [ 44 ] The accused specified that he was not the one who had redirected the mail, and that it was Jon and Alex who owned the personal information, while he did the purchases.

They would give him the date of birth and PIN numbers in order to enable him to use the cards. [ 45 ] The fake credit and debit cards were kept at 65 Brunswick Road and all of them had access to the cards. [ 46 ] It was mainly Jon and Alex who applied for the cards although he did apply for a few of them under their supervision.

[ 47 ] The accused did not use the cards to buy himself many things. He may have bought some trivial things like jeans or coffees. [ 48 ] The accused was also asked to identify which of the purchases listed in exhibits S-2 and S-3 were made by him. He is not sure who made the application to obtain those particular cards. [ 49 ] He said that he was out of town between December 31, 2016 and January 14, 2017 and so necessarily none of those transactions could be attributed to him.

He also never bought groceries as his mother was doing the grocery shopping at the time. [ 50 ] In fact, the only transaction which he could identify as being engaged in by him, either definitely or potentially, was a $200 transaction at Winners on February 11, 2017 when he bought a $200 gift card.

He also said that it was possible that he had made some of the Starbucks purchases because although he does not specifically remember the dates mentioned in the documents, he does go to Starbucks. [ 51 ] He believes he used the cards of Maxime Laplante and Heilya Mirashahi for a combined total of not more than 10 times. Each time he bought items for between $250 and $500. Jon and Alex would sell the items for about 70% of their true value and then give him one third. [ 52 ] The $964 that was found on him and in the knapsack on the day of the search was money he had earned from his involvement in the scheme.

He did not earn any money for agreeing to store the computer equipment which was found in his office at the time of the search. Davood Aimen [ 53 ] The accused’s brother, Davood, was present throughout the hearing and testified on his brother’s behalf. He is a professional accountant who has a good job at CN. CN has also made him a mentor to people within the accounting department. CN is a dynamic company with lots of opportunity for movement and promotions.

Employees are sometimes required to travel to the United States. [ 54 ] Davood lives with his mother and sister and brother at the place the accused lived as well until his marriage. Everyone in the family has prosocial values. [ 55 ] He was present the day that their home was searched. They were shocked and scared. [ 56 ] In retrospect, they knew that the accused was going through a tough time and feel they should have paid more attention to him. He was depressed and drained and stressed and clearly needed help.

The symptoms of his multiple sclerosis were beginning to emerge. [ 57 ] The accused is now in a much better place. He has the support of his family. He is energetic and uplifted. [ 58 ] Davood is mentoring the accused from a career perspective. He is optimistic that the accused will be able to obtain his CPA designation within two years. As soon as he is enrolled in the program, he will be able to begin an internship within the accounting department of CN. [ 59 ] The accused contributes positively to society.

Recently they served food together at a charity supper at the Old Brewery Mission. [ 60 ] In sum, the accused has “come a long way” since the time of the arrest. SENTENCING PRINCIPLES [ 61 ] According to 718.1 of the Criminal Code , the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. [ 62 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing which is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is done 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 the community;

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

c) to separate offenders from society, when necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. [ 63 ]

Article 718.2 sets out the other principles which must be considered in imposing a sentence. According to paragraph a), a sentence must account for any relevant aggravating or mitigating circumstances relating to the offense or the offender. Paragraph b) underscores the importance of imposing similar sentences for similar offenders who commit similar offenses in similar circumstances. Paragraph d) and

e) codify the principle of restraint, in other words, that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and all sanctions other than imprisonment that are reasonable and consistent with the harm done to victims or to the community should be considered for all offenders. Discharges

[ 64 ] When an accused pleads guilty or is found guilty of an offense other than an offense for which there is a mandatory minimum punishment or an offense punishable by imprisonment for 14 years or for life, the Court may, if it is in the best interest of the accused and not contrary to the public interest, instead of convicting the accused, discharge the accused absolutely or on conditions. [ 65 ] The notion of the “best interest” of the accused has been explained in the jurisprudence as follows: […] Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, that the entry of conviction against him may have significant adverse repercussions. [2] [ 66 ] As for the “public interest”, the analysis must take into account the need for general deterrence, the seriousness of the crime, its frequency in the community, the attitude of the public in relation to the offense as well as the confidence of the public in the criminal justice system [3] . [ 67 ] There are no categories of crimes that are excluded from the discharge regime, other than those for which the statutory requirements are not fulfilled [4] .

A discharge is not an exceptional measure [5] . The need for general deterrence, even in the face of serious crimes, is not in and of itself an obstacle to the imposition of a discharge in appropriate cases [6] . APPLICATION [ 68 ] There are no mandatory minimum sentences prescribed for any of the crimes for which the accused pleaded guilty. All three offenses are punishable by a maximum term of imprisonment of 10 years.

The statutory prerequisites for a discharge are thus fulfilled. [ 69 ] The attorney for the prosecution argues that a discharge is not in the best interests of the accused and against the public interest. [ 70 ] More specifically, he argues that the accused was not straightforward in his testimony, and that he has not truly accepted the full extent of his responsibility.

For this reason, there remains a need for specific deterrence, despite the many positive steps taken by the accused since his arrest and his expression of remorse which the prosecution recognizes to be sincere [ 71 ] Furthermore, credit card fraud and identity theft is a plague in our society and the need for general deterrence is significant. The offenses were planned, there were multiple acts, and multiple victims.

In fact, were it not for the search and arrest, there is every reason to believe that the offenses would have perpetuated, creating further damage. [ 72 ] The accused was in possession of many cards at the time for his arrest. [ 73 ] Given the nature of the offense and the particular circumstances of this case, the granting of a discharge would be inconsistent with general deterrence and therefore against the public interest. [ 74 ] A suspended sentence is already a lenient sentence which takes into account the personal factors of the accused and the progress he has made to change his life. [ 75 ] The defence, on the other hand, argues that the testimony of the accused and his brother, as well as the report prepared by Jonathan Lambert, clearly demonstrate that the granting of a discharge is in the best interest of the accused and would not be against the public interest. [ 76 ] To begin with, the Court is of the opinion that the accused did testify in a straightforward manner.

As pointed out by his attorney, it would have been easy for him to take responsibility for all of the transactions that were put to him by the attorney for the prosecution in an effort to earn favour in the eyes of the Court. However, instead, he reviewed the documents that were presented to him and indicated that he could only be certain that he was responsible for one of the listed transactions.

Nonetheless, he readily admitted that he conducted other transactions [7] using the cards in the names of Maxime Plante and Heliya Mirshahi, despite the fact that the transactions did not appear on the transaction records deposited in evidence. He also acknowledged that the $964 that was seized was money he had earned from the commission of the crimes. [ 77 ] In support of its position that the accused downplayed his responsibility and did not testify transparently, the prosecution also pointed to what it considered to be differences in the information related in Court and that provided to Mr.

Lambert [8] . [ 78 ] Questioned about these perceived inconsistencies, the accused replied that the information he provided to Mr. Lambert was in response to specific questions that the latter put to him. The Court understands and accepts this answer. [ 79 ] Furthermore, the Court does not consider there to be contradictions between testimony of the accused, and the information in the report. The report clearly indicates that the actions of the accused were « encadrées » [9] by the other individuals who had provided him with the opportunity to participate in the criminal endeavor.

In addition, it mentions that the accused obtained a percentage of the profits, and that the accused agreed to store equipment which could be used to create the false credit cards in his office space. [ 80 ] Still on the topic of specific deterrence, the Court observed that the accused was very anxious to apologize for his actions and to express remorse. In fact, immediately after he was sworn in, rather than responding to his attorney’s first question, he apologized to the Court.

In addition to expressing his regret, shame, and humiliation, he shared his opinion as to what led him to “stray”, and explained all of the progress that he has made since the commission of the offenses to ensure that this behaviour will never repeat itself. [ 81 ] The Court also notes that the accused pleaded guilty. [ 82 ] The Court thus agrees with the opinion of Mr. Lambert that the accused is introspective and truly remorseful.

[ 83 ] Furthermore, the Court is convinced that given all of the positive steps taken by the accused since the commission of the offenses - his good, stable job, the continuation of his education in order to provide himself with even better opportunities, his marriage - as well as the fact that he is surrounded by a wife, siblings, and mother who are aware of the offense and who continue to provide him with support, the risk of recidivism is indeed very low [10] . [ 84 ] In sum, it is clear that the court proceedings have had a significant impact on the accused.

The Court is persuaded that the goal of specific deterrence has been achieved. [ 85 ] The Court is also convinced, given the professional aspirations of the accused, that the granting of a discharge would be in his best interest. [ 86 ] As for the public interest, the Court must impose a sentence which reflects the fact that identity theft and credit card fraud are scourges on our society.

As explained by my colleague Marchi, J., [11] crimes of this nature affect not only the targeted individuals, but financial institutions which don’t simply absorb the losses caused by these crimes but undoubtedly pass on the increased costs to all consumers. It is therefore society as a whole that suffers. [ 87 ] The pervasive nature of these crimes are such that the objectives of deterrence and denunciation must be emphasized at the sentencing stage. [ 88 ] Furthermore, in the case at hand, the accused was not involved in only one isolated act.

The sentence to be imposed must reflect the fact that the offenses were committed for a period of over two months, between December 15, 2016 and February 23, 2017. There were multiple victims. There was necessarily a degree of planning. The commission of the offenses was motivated by the need for quick money. At the time of the search, the accused was found in possession of 14 fraudulent cards. The behaviour only stopped when the accused was arrested.

The losses suffered exceeded $10,000 [12] . [ 89 ] On the other hand, the Court notes that the accused was not the mastermind of these offenses [13] and was in fact led astray by his chance encounter with individuals involved in this fraudulent behaviour.

Furthermore, it is uncontradicted that other than his personal computer, the equipment found in his office did not belong to him. [ 90 ] In terms of factors specific to the accused, the Court notes that the accused had lead a productive life prior to the commission of the offenses, often attending school and working simultaneously. [ 91 ] The accused was going through a particularly low period in his life, facing both emotional difficulties and problems with his physical health. [ 92 ] Since his arrest, the accused has done absolutely everything in his power to turn his life around.

He has a good job, has paid off his debts and has ambitious plans for the future as demonstrated by his decision to further his education. According to his brother, who also works with him, his aspirations are realistic. [ 93 ] The accused is married to someone who is aware of his criminal behaviour, who is herself a teacher with prosocial values. [ 94 ] The accused has distanced himself from negative influences and can count on the support of his brother and other members of his family.

In fact, although she did not testify, his sister was also in court for part of the sentencing hearing. [ 95 ] His health is under control. [ 96 ] As already mentioned, the accused has engaged in serious reflection about what led him to commit the offenses, and has expressed an understanding as to the impact of his behaviour, as well as genuine remorse.

This is the first time that the accused has ever faced criminal charges, and there is every reason to believe it will be his last. [ 97 ] The accused has indicated a willingness to reimburse the losses incurred by his behaviour, and to do community work as a means of “giving back something” to society. An order to reimburse the victims and to do community work will indeed be included in any sentence to be imposed [14] .

These aspects of the sentence will ensure that in addition to specific deterrence, the sentencing objectives set out at paragraphs d , e and f of paragraph 718 of the Criminal Code will be met, namely the rehabilitation of the offender, the making of reparation to victims, and the promotion of a sense of responsibility as well as acknowledgement of harm done to victims or to the community. [ 98 ] The achievement of these objectives is also reassuring in terms of the protection of society [15] . [ 99 ] The Court is therefore left asking itself whether the pressing need for deterrence and denunciation in this case is such that the granting of a conditional discharge would be inappropriate and run counter to the public interest. [ 100 ] The following observations from our Court of Appeal provide guidance on this point: [82] Le processus du système de justice criminelle est en soi une réponse forte aux comportements antisociaux.

L’abus de confiance demeure jusqu’à un certain point une caractéristique générique de comportements qui s’expriment de façons différentes dans des contextes qui le sont tout autant.

La jurisprudence précitée montre bien que la déclaration de culpabilité ainsi que les différentes peines et mesures prévues permettent de répondre de manière juste et proportionnelle à la gravité du comportement et à la responsabilité du délinquant. [83] Par ailleurs, je souligne que la dénonciation et la dissuasion générale sont des objectifs flous pouvant mener rapidement à une peine disproportionnée s’ils ne sont pas pondérés avec soin. Tout en reconnaissant leur utilité générale, la Cour a souligné à plus d’une

reprise le caractère incertain et limité de l’objectif de dissuasion générale : R. c. Paré, 2011 QCCA 2047 ; R. c. Brais, 2016QCCA 356 ; R. c. Charbonneau, 2016 QCCA 1567 . Voir également R. c. H. (C.N.) (2002), (ONCA), 170 C.C.C. (3d) 253, par. 35 (C.A.O.); R. c. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344, par. 23(C.A.O.); R. c. Wismayer (1997), (ON CA), 115 C.C.C. (3d) 18, 36 (C.A.O.) et R. c.

Lee, 2012 ABCA 17 ,par. 37 (opinion du juge Berger). [84] Je n’ignore pas qu’on prête à la dissuasion une certaine efficacité pour les malversations qui exigent réflexion et planification.Cette affirmation ne doit cependant pas faire perdre de vue les faits propres à chaque affaire et à chaque délinquant. La peine doit tenir compte de l’ensemble des objectifs pénologiques et non s’arrêter à certains d’entre eux.

Seul l’équilibre mène à une peine juste.[16] [101] Clearly, our inability to gauge the efficacy of sentencing in achieving general deterrence is such that this objective should not beoveremphasized at the expense of others.

This is true even in cases involving fraud, which requires planning, as in the case at hand.Indeed, sentencing is always an individualized process which must balance all sentencing objectives in light of the particularcircumstances of the offense and the offender in order to arrive at a just sentence. [102] It is to be remembered that individuals who benefit from conditional discharges retain a “sword of Damocles” over their heads during the probationary period. This was explained as follows in R. v.

Meneses[17]: It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence.In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, shewill have earned her discharge.

If the terms are not met she may be brought back and sentenced for the offence, and a conviction will berecorded against her. [103] This is the same a mechanism that exists when a court suspends the passing of its sentence and imposes a probationary term[18]. [104] The accused has been completely rehabilitated and has positive prospects for the future. It is in the public interest that he be able to remain gainfully employed in order to contribute in a positive manner to society[19].

As already stated, the requirement to performcommunity service and to reimburse the victims or conditions achieves significant deterrent effects. [105] In sum, in the particular circumstances of this case, the Court is convinced that despite the pressing need for deterrence, theseriousness of the crime, its frequency in the community and the fact that it is indeed a plague in our society, the confidence of the publicin the criminal justice system would not be undermined by the imposition of a conditional discharge.

FOR THESE REASONS, THE COURT: DISCHARGES the accused and imposes a probation for a period of three years, the first under the supervision of a probation officer. In addition to the statutory conditions, the accused shall respect to the following conditions: • ABSTAIN from being in possession of any identification, credit cards or bank cards in any name other than his own; • PERFORM 240 hours of community work within a delay of 15 months; • DEPOSIT $10,000 with the court clerk according to the following schedule[20]: ° $3,000 by June 1, 2020; ° $3,000 by June 1, 2021; ° $4,000 by June 1, 2022.

These funds will be forwarded by the court clerk to the victims. __________________________________ SUZANNE COSTOM, J.C.Q. Me Jimmy SimardProsecuting Attorney Me Serge LamontagneAccused’s Attorney Date of hearing: May 31, 2019