r v. Glenn FELDMAN, 2022 QCCQ 1881

R. c. Feldman 2022 QCCQ 1881 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-206572-205 DATE: April 20, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. Glenn FELDMAN Accused ______________________________________________________________________ DECISION ON SENTENCE [ 1 ] On July 5, 2021, Mr. Glenn Feldman pleaded guilty to one count of criminally harassing Mr. Irwin Lande.

The harassment took place between September 8, 2019 and June 24, 2020. [ 2 ] This is the Court’s decision on sentence. [ 3 ] The Prosecution urges the Court to impose a suspended sentence with a two-year probation which includes a series of conditions prohibiting Mr. Feldman from communicating with Mr. Lande and the members of his family. [ 4 ] The defence seeks an absolute or conditional discharge. THE FACTS [ 5 ] Mr. Glenn Feldman and Mr. Irwin Lande were best friends from the time that they were teenagers, and partners for more than 40 years. In Mr. Feldman’s words, Mr.

Lande was “his brother” [1] . [ 6 ] In 2019, after years of a successful partnership and a long meaningful friendship, Mr. Feldman became concerned about the expenses being incurred by Mr. Lande and the health of their businesses. He began an investigation regarding $900,000 that was left to Mr. Lande’s parents who ultimately left it to him when they passed away. [ 7 ] Mr. Feldman hired detectives and handwriting experts and consulted other professionals and became convinced that the $900,000 was stolen by the Nazis from Jewish people. [ 8 ] Since then, there have been civil suits and counter-suits, and Mr.

Feldman was charged with a series of criminal offenses. [ 9 ] In the context of civil proceedings initiated by Mr. Feldman against Mr. Lande, Mr. Feldman filed an affidavit detailing the various actions he had taken in the context of his “investigation”. Some of them were quite alarming to Mr, Lande and caused him to fear for his safety. [ 10 ] Mr. Feldman sent multiple letters to Mr. Lande’s family members as well as to other members of his entourage including his lawyers, accountants, insurance agents and architects. He also contacted journalists and told them that Mr.

Lande was hiding billions of dollars of gold bars stolen from Holocaust victims in his home. He did this in a very repetitive fashion. THE VICTIM [ 11 ] Mr. Lande wrote a letter describing the impact that Mr. Feldman’s criminal harrassment had on him and his family. [ 12 ] As a Jewish man, and the child of Holocaust survivors, one of the worst things that can be done to him is to accuse him of profiting from gold stolen from victims of the Holocaust [2] . [ 13 ] Upon reviewing the affidavit filed by Mr. Feldman in the civil proceedings, Mr. Lande and his family came to understand that Mr.

Feldman had their home under surveillance. As such, up to today, they keep their blinds in their home down at all times. Their doors and windows are always locked and Mr. Lande, his wife and his children are continuously frightened by the possibility that angry

members of the community who believe Mr. Feldman’s allegations will retaliate and harm them. They even hired private security guards at night. [ 14 ] From Mr. Lande’s perspective, Mr. Feldman has been spreading false stories about him and his family, causing them significant emotional and psychological distress. Many of their friends as well as professionals that they had worked with in the past have cut ties with them. [ 15 ] There have also been financial repercussions as potential business partners, investors and business contacts refuse to work with him. [ 16 ] Mr.

Lande’s letter ends as follows : “I would like your honour to understand that: for me my wife and my four children Mr. Feldman represents a nightmare that will never stop. He is a monster in our lives that won’t go away […]. We all lost much sleep and happiness because of Mr. Feldman’s destructive, hurtful actions and behaviour […]” [ 17 ] To be sure, it is not the role of this Court to determine whether Mr. Feldman’s investigation was legitimate or whether his findings are accurate. What is relevant is that regardless of his subjective motives, Mr.

Feldman’s behaviour constituted criminal harassment and has affected Mr. Lande and his family emotionally, financially and socially, leading them to fear for their safety even within the comfort of their own home. THE ACCUSED [ 18 ] Mr. Feldman is 67 years old and has no prior convictions or pending cases. [ 19 ] He did not testify at the sentencing hearing, however, he submitted a criminological evaluation [3] which contains much information about him. [ 20 ] He has a 32-year-old daughter from a first marriage as well as two children - ages 23 and 25 - from his second marriage.

He has a positive relationship with all three of his children as well as with his first wife. One of his daughters was present at the sentencing hearing. [ 21 ] In 2019, Mr. Feldman was married for a third time. His new wife has supported him throughout the proceedings and was also present at the time of the sentencing hearing. She has encouraged him to move on, to focus on their family and to leave the whole situation with Mr. Lande behind him. [ 22 ] Mr. Feldman is a lawyer and started practising law in 1981. In addition to his work as an attorney, he began investing in real estate with Mr.

Lande and they created a real estate company. From 2004 until 2010, Mr. Feldman fulfilled a long time dream by going to work as a lawyer in the entertainment business in California. In 2010, he returned to Montréal to look after his assets which had started to decrease in value. He still owns properties in California. [ 23 ] Since being charged, Mr. Feldman has made numerous changes in his professional life. He was required to move out of the offices which he had always shared with Mr. Lande and has formed a new law firm where he has surrounded himself with young professionals.

He is enthusiastic about his new office and expresses optimism about the future. [ 24 ] Mr. Feldman’s paralegal, Ms. Briana Dilorio, spoke with the criminologist who prepared the criminological evaluation and described Mr. Feldman as a mentor from whom she is learning a lot, who encourages her to constantly grow and improve [4] . She says that Mr. Feldman is always respectful and is never angry or aggressive. She too attended the sentencing hearing. [ 25 ] Mr. Feldman and Mr. Lande are in the midst of liquidating their real estate holdings.

All communications are done via a third party. [ 26 ] The criminologist describes Mr. Feldman as honest and introspective. She states that he is empathetic and has the ability to question himself. She believes that Mr. Feldman has taken a step back and now recognizes that he became too personally involved in what he perceived as a mandate on behalf of society and of the victims of World War II. He understands that he went too far. [ 27 ] The criminologist concludes that the risk of recidivism is low. Mr.

Feldman’s prosocial entourage, his positive relationship with his wife, his involvement in the lives of his children, his fulfilling career, his projects for the future, his capacity for empathy and his ability to look after his mental health are all factors which tend to reduce the likelihood of recidivism. [ 28 ] It is to be noted that Mr. Feldman has met with psychologist Robert Phillippe on 12 occasions since being charged. [ 29 ] The criminologist describes Mr. Feldman’s criminal behaviour as an isolated act which took place within a very particular context.

He engaged in compulsive behaviour which does not correspond with his personality. [ 30 ] The criminologist believes that Mr. Feldman has now taken the steps necessary to enable him to move on. SENTENCING PRINCIPLES [ 31 ] According to

section 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. [ 32 ]

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 denounce unlawful conduct and the harm done to victims or the community; deter the offender and other persons from committing offenses; separate offenders from society, when necessary; assist in rehabilitating offenders; provide reparation for harm done to victims or to the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. [ 33 ]

Section 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 [ 34 ] 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. [ 35 ] 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. [5] [ 36 ] 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 [6] . [ 37 ] There are no categories of crimes that are excluded from the discharge regime, other than those for which the statutory requirements are not fulfilled [7] .

A discharge is not an exceptional measure [8] . 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 [9] . APPLICATION [ 38 ] In crafting a proportionate sentence, the Court’s role is to fulfil the various principles and objectives of sentencing, in light of the specific aggravating and mitigating factors in any given case. [ 39 ] The objective gravity of an offense can be gleaned by examining the maximum sentence set out by the legislator.

At the time of the commission of this offense, the maximum punishment was six months in jail when prosecuted summarily [10] , and ten years when prosecuted by way of indictment. [ 40 ] The aggravating factors in the present matter are as follows : • The harassment took place over the period of 9 ½ months. • The harassment took on different forms. • The social, emotional and financial consequences on Mr. Lande and his family [ 41 ] The Court takes note of the following mitigating factors : • Mr.

Feldman has no criminal record or pending cases. • He pleaded guilty, thereby avoiding a long trial. • He is a 67-year old man who has always been a productive member of society – working as a lawyer and in real estate. • He has the support of his family. [ 42 ] The Court also considers the fact that Mr. Feldman was arrested and detained for three days as well as the fact that he has respected the conditions of his interim release [11] . These include a prohibition from communicating directly or indirectly with Mr. Lande and on being in the physical presence of Mr.

Lande and members of his immediate family. [ 43 ] In light of all of the above, would the granting of a discharge adequately reflect the gravity of the offense and the degree of responsibility of the offender? [ 44 ] The main feature distinguishing the position of the prosecution and that of the defence is that the sentence being put forward by the prosecution would lead to the creation of a criminal record, whereas that being suggested by the defence would not. [ 45 ] On the first criterion which must be met in order for a discharge to be granted, the prosecution concedes that a discharge would

be in Mr. Feldman’s best interest. [ 46 ] The Court agrees. Mr. Feldman still owns real estate in California, where he lived for many years, and he has actually been refused entry on three different occasions on account of this pending case. To the extent possible, he needs to remove obstacles to travelling to the United States to manage his property. [ 47 ] Furthermore, as a practising attorney, Mr. Feldman advised the Barreau du Québec of his guilty plea in this matter, as he was required to do, and the hearing on sanction will take place shortly.

The position which this Court adopts on sentence will no doubt be something which the Conseil de discipline (“the Conseil”) will consider in determining the appropriate consequence on a professional level. [ 48 ] The prosecution argues, however, that a discharge should not be granted as it would be against the public interest. [ 49 ] The prosecution insists most particularly on the fact that Mr. Feldman has expressed no remorse in relation to his behaviour. It properly acknowledges that absence of remorse is not an aggravating factor. However, it argues that in this particular case, Mr.

Feldman’s lack of remorse, combined with his failure to take full responsibility for his actions, as well as the other aggravating factors, are such that the confidence of the public in the criminal justice system would be adversely affected by the granting of a discharge. [ 50 ] In support of its position, the prosecution points to the decision on the merits [12] as well as the decision on sentence [13] of the disciplinary committee of the Barreau du Québec in relation to a series of violations of the Code of Professional Conduct of Lawyers [14] and the Professional Code [15] . [ 51 ] First, in its decision on the merits, the Conseil refers to Mr.

Feldman’s testimony of July 2021 in which he affirmed that his allegations that Mr. Lande had been enriched by money received from Holocaust victims had been substantiated [16] . He said that anyone in his position would have had difficulty acting with moderation [17] . Mr. Feldman also testified that Mr. Lande did not fear for his safety or that of members of his family [18] . [ 52 ] The prosecution draws the Court’s attention to the fact that Mr.

Feldman testified to this effect in July 2021, just weeks after his guilty plea in the present matter. [ 53 ] As for the hearing with respect to the sanction, it took place on November 23, 2021. On that date, Mr. Feldman apologized to the Conseil but added that he “could not let go” [19] . He did not apologize to Mr. Lande, and reaffirmed the veracity of his allegations. [ 54 ] In this regard, the prosecution raises questions about the conclusions of the criminological evaluation submitted by Mr. Feldman. It questions the accuracy of the report which states that over the past six months Mr.

Feldman has totally let go of the situation [20] , and that he recognizes that he went too far [21] . Indeed, the criminologist met with Mr. Feldman on December 23, just one month after his testimony before the Conseil on sanction. [ 55 ] While the Court certainly understands the prosecution’s position, it is of the view that it does not necessarily pose an obstacle to the granting of a discharge. [ 56 ] To begin with, nowhere in the two decisions submitted by the prosecution does it say Mr. Feldman does not regret his behaviour. What the Conseil retained is that Mr.

Feldman still believes in the accuracy of his allegations about Mr. Lande. This does not mean that he does not wish that he had conducted himself differently. [ 57 ] Mr. Feldman’s comment, summarized by the Conseil, to the effect that in his opinion Mr. Lande didn’t genuinely fear for his safety cannot be considered by this Court, given that in pleading guilty Mr. Feldman acknowledged this fact as one of the essential elements of the offense of criminal harassment. [ 58 ] Mr. Feldman’s testimony on sanction that that he “could not let go” is more troubling at first blush.

However, the combination of the fact that Mr. Feldman has respected all of his bail conditions since the outset of the proceedings, that he admitted to the criminologist at the end of December that he had gone too far, that he told her that he understands the impact of his behaviour and stated that he wants to move on, are reassuring to the Court. [ 59 ] The Court also takes into account that Mr. Feldman did 12 sessions with psychologist Robert Philippe. [ 60 ] The Court has no trouble accepting the conclusion of the criminological evaluation that Mr.

Feldman does not pose a risk to society and that the risk of recidivism is low. As pointed out by the criminologist, Mr. Feldman’s criminal behaviour took place within a particular, very emotionally-charged context. This is of course no excuse, and the Court underscores that the behaviour was unambiguously criminal and had grave consequences for the victim. [ 61 ] That being said, Mr. Feldman has been a productive, law-abiding citizen his whole life. He has the support of his family. His behaviour forced him, in his mid-60s, to move offices and relaunch his career with new colleagues.

He went through the experience of being arrested and detained for three days. He was turned away at the border on at least three occasions. He was prosecuted and sentenced for ethical breaches by his professional order and faces an upcoming sentencing hearing on account of having pleaded guilty to the present criminal offense.

While many of these things are simply the by-product of his criminal behaviour, and are in no way mitigating, they are factors to be taken into account in determining whether the public interest requires the imposition of a criminal conviction. [ 62 ] It is to be recalled that like the suspended sentence being suggested by the prosecution, a conditional discharge is accompanied by a probation. As pointed out in R . v. Meneses [22] :

12 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, she will have earned her discharge. If the terms are not met she may be brought back and sentenced for the offence, and a conviction will be recorded against her. [ 63 ] A conditional discharge will also enable the Court to impose conditions prohibiting Mr. Feldman from communicating or being in the presence of Mr. Lande [23] .

FOR THESE REASONS, THE COURT : DISCHARGES the accused and imposes a probation for a period of two years, with the first six months under the supervision of a probation officer. In addition to the statutory conditions, the accused shall respect the following conditions: • ABSTAIN from communicating directly or indirectly in any manner whatsoever with Mr. Irwin Lande or the members of his immediate family. • ABSTAIN from being within a 300 meter radius of the home, place of work or school of Mr. Irwin Lande or the members of his immediate family. • ABSTAIN from being within the physical presence of Mr.

Irwin Lande or the members of his immediate family except for in relation to the ongoing civil proceedings. • ABSTAIN from mentioning Mr. Irwin Lande or the members of his immediate family in any social media or publication. • FOLLOW any recommendation of the probation officer with respect to continued psychological counselling. __________________________________ SUZANNE COSTOM, J.C.Q. Me Claude Berlinguette-Auger Attorney for the DPCP Me Dominique Shoofey Attorney for the accused Date of hearing March 31, 2022