r v. YUAN WANG, 2023 QCCQ 5888

R. c. Wang 2023 QCCQ 5888 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU «Criminal and penal Division» No: 550-01-109896-193 DATE: September 8, 2023 ______________________________________________________________________ BY THE HONOURABLE ROSEMARIE MILLAR, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

YUAN WANG Accused ______________________________________________________________________ REASONS FOR SENTENCE ______________________________________________________________________ [ 1 ] The offender, Yuan Wang, pleaded guilty to a fraud towards La Société des Casinos du Québec (Casino du Lac-Leamy) and the use of a forged document in August 2018. [ 2 ] The facts can be described as follows. [ 3 ] On August 8, 2018, Mrs. Wang communicated with an employee at the Casino du Lac-Leamy (Casino). She requested a room at the hotel and two plane tickets. [ 4 ] The reservation was confirmed to Mrs.

Wang. [ 5 ] The same day, Mrs. Wang called another employee at the Casino to inform her that she would send a bank draft. [ 6 ] The bank draft of an amount of $550 800 [1] was sent to the Casino. [ 7 ] On August 9, 2018, Mrs. Wang arrived at 2:30 a.m. at the Casino with the original bank draft. [ 8 ] Identified with identification papers, Mrs. Wang withdrew an amount of $150 800 in cash and $400 000 in chips. [ 9 ] At the end of the night at 3:45 a.m., Mrs.

Wang went to see the staff to exchange her chips for cash. [ 10 ] Before giving her the money, the employee called the National Bank of Canada using the phone number written on the draft. She was told that the draft was valid by the person who answered the phone. [ 11 ] The total lost for the Casino is $545 800. [ 12 ] After a judicial pre-trial, presided by the undersigned, the Crown and the Defense set a date for sentencing representations. [ 13 ] The judicial pre-trial also concerned another accused, Sunil Kumar Patel. [ 14 ] A case discussed at the judicial pre-trial ( R. v.

Daud Srosh [2] ) concerns another accused without prior criminal history, who defrauded casinos (in Niagara Falls and in Gatineau) for an amount of $890 000 and who was sentenced to a suspended sentence with a probation order. [ 15 ] The question in issue here is to decide if Mrs. Wang will be sentenced to a conditional discharge with a probation order (suggested by the Defense) or a suspended sentence with a probation order (sought by the Crown). [ 16 ] For the following reasons, the Court finds that a suspended sentence with a probation order is the appropriate sentence for Mrs. Wang. I.

THE LAW [ 17 ] The offender of a fraud exceeding five thousand dollars is liable to a term of imprisonment not exceeding 14 years according to section 380(1)

a) of the Criminal Code ( Cr.C .).

[ 18 ] The offender using a forged document is liable under section 368(1) a)(1.1)

a) of the Cr.C . to an imprisonment for a term of not more than 10 years. [ 19 ] According to Traité de droit criminel’s [3] authors, offenders of fraud of intermediate importance ($100 000 to $500 000) are sentenced from 6 months to 3 years with a predominance for sentences from 12 to 20 months. Offenders of frauds of intermediate importance with many mitigating circumstances are generally sentenced from 8 to 18 months of imprisonment. II.

PURPOSE AND PRINCIPLES OF SENTENCING [ 20 ] The purpose and principles of sentencing are provided at sections 718 to 718.201 Cr.C . [ 21 ] The objectives of sentencing are denunciation, deterrence, rehabilitation, acknowledgement of the harm done and reparation for the harm [4] . [ 22 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [5] . [ 23 ] The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender [6] . [ 24 ] The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [7] . [ 25 ] According to the Supreme Court “sentencing ranges are primarily guidelines and not hard and fast rules” [8] . [ 26 ] The Supreme Court decided that the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation [9] . [ 27 ] The judge, before sentencing for a jail sentence, should impose a less restrictive sanction if appropriate.

III. CONDITIONAL DISCHARGE [ 28 ] Paragraph 730(1) Cr.C . prescribes that a Court may order that an accused be discharged absolutely or on conditions if he is guilty of an offence with no minimum punishment or not punishable by an imprisonment for fourteen years or for life if he considers it to be the best interest of the accused and not contrary to the public interest. [ 29 ] Is a conditional discharge, as suggested by the defense is, in the best interest of the accused? [ 30 ] Mrs.

Wang is 45 years old and a single mother of two children aged 16 years and 12 years. [ 31 ] She came to Canada from China with her family in 1980. She lives in Markham, Ontario. [ 32 ] She gambled at various casinos for five years and lost over the years almost 3 million. [ 33 ] Her severe addiction led her to mortgage four times the residence she received from her parents for her wedding. [ 34 ] Her family had to intervene to stop her. She has nothing now under her name. Her parents control her completely as if she was an infant.

Her parents give her an allowance for her living since she has no bank account and no revenue. Without her parents’ generosity, she would be in the street. [ 35 ] She found a way to get money to continue to gamble by using a loan received from her parents. [ 36 ] Because of her addiction, she agreed to sign papers to exclude herself from casinos in Ontario. [ 37 ] This situation caused her to come to Quebec to gamble again, leading to the present offences. [ 38 ] She also suffers from a mental health issue. [ 39 ] Her medical record was filed [10] .

It shows that she suffered once from depression and made a suicidal attempt. [ 40 ] According to her lawyer, “ the gambling addiction has blown away her life”. [ 41 ] She is now a useless mother and is still her parents’ child. [ 42 ] The Court finds that a discharge would be in the best interest of Mrs.

Wang, who has no criminal record. [ 43 ] Is a conditional discharge not contrary to the public interest? [ 44 ] The Crown filed a letter from the Casino du Lac-Leamy’s security director concerning the impact caused by the fraud at the Casino being the financial loss of $545 000, the damages to the Société des casinos du Quebec’ s reputation with the numerous newspapers articles and loss of jobs following internal inquest. [ 45 ] The Court takes note of the content of the letter.

However, it cannot forget the nature of the gaming scene and the impact these gaming opportunities have on people who suffer from gambling addiction.

[ 46 ] It remains that the fraud is huge, half a million.

It is a fraud with the use of a scheme: a forged bank draft with a false number for the bank. [ 47 ] The objective of denunciation and of public deterrence would not be filled if the accused obtains a discharge even with conditions. [ 48 ] The Court finds that it would be against public interest to order that the accused be discharged. [ 49 ] The Court finds that even a public well informed would lose confidence in the administration of justice if the accused obtains a discharge. [ 50 ] For these reasons, the Court will not follow the defense’s suggestion. [ 51 ] The Crown, who wasn’t the one at the judicial pre-trial, suggests a suspended sentence with a probation order with surveillance even if, personally, he finds the sentence too lenient, and that the punishment should be imprisonment. [ 52 ] At first view, it is true that this sentence looks lenient but, in view of all the circumstances, this sentence is individualised and outside the usual range because of many factors (huge addiction, infantilization, mental health issues, absence of a criminal record). [ 53 ] Also, for a similar situation, a common suggestion by the Crown and Defense was followed in the Ontario Court of Justice in the case of Daud Srosh in 2021 for frauds amounting to $890 000. [ 54 ] Although the Crown’s proposed suggestion is outside the usual range, the Court finds that a suspended sentence with a probation order would be a fit sentence, a sentence individualised for the accused’s situation and a sentence in harmony with the one received by a co-accused (Patel) and another fraudster ( Srosh ) suffering also from a gambling addiction.

IV. CONCLUSION [ 55 ] For these reasons, the Court accepts the Crown’s submission and orders that the sentence be suspended, and that the accused be on a probation for a period of three years with conditions.

THEREFORE, FOR THESE REASONS, THE COURT: ORDERS on both counts, the suspension of the sentence; ORDERS the offender to abide by the following conditions in the probation for a period of three years : - keep the peace and be of good behaviour; - appear before the court when requested to do so by the Court; - notify the probation officer in advance of any change of name or address or promptly notify the probation officer of any change of employment or occupation; - abstain to be in Casinos or any gambling premises; - abstain to communicate directly or indirectly with Sunil Kumar Patel and Daud Srosh; - report to a probation officer within two working days of the coming into force of the probation order and thereafter when required and in the manner directed by the probation officer for a period of three years; - if recommend by the probation officer, engage in a therapy for gambling; ORDERS the accused to be dispensed from the payment of the surfine; ORDERS restitution to the Société des Casinos du Québec of an amount of $125 000 according to section 738(1)

a) Cr.C . __________________________________ ROSEMARIE MILLAR, J.C.Q. Me Stephane Rolland For the Prosecutor Me Leonardo Rossomano Counsel for the accused Date of hearing: June 19, 2023