r v. EMMANUEL DWEH GBALA, 2020 QCCQ 8122

R. c. Gbala 2020 QCCQ 8122 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LABELLE TOWN OF LABELLE Criminal and Penal Division No: 565-01-006917-181 DATE: November 5 th , 2020. ______________________________________________________________________ BY THE HONOURABLE MARK PHILIPPE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. EMMANUEL DWEH GBALA Accused ______________________________________________________________________ DECISION ON SENTENCE ______________________________________________________________________ [ 1 ] Mr.

Gbala pleaded guilty to an amended charge of attempted fraud of a sum of money, of a value exceeding $5,000. [ 2 ] At the guilty plea, the parties filed an agreed statement of facts. The acknowledged facts are summarized as follows. At the beginning of July 2018, the accused was residing in the Montreal area. He contacted the victims who were selling their business situated in Montcerf-Lytton: a rest stop that includes a gas station, a convenience store and a restaurant. The asking price for the business was $275,000. Their business had been on sale for two years. [ 3 ] The accused and his accomplice, Mr.

Bah met with the victims and expressed interest in buying the business. When they visited the business for the first time, the accused explained that he was newly arrived in the country and that although he was interested, he did not have the necessary funds with him. However, he also explained that he comes from a wealthy family in Africa who own land where diamond mines are located and that his father would be willing to advance him the necessary funds.

However, due to trouble at his country's borders, it was difficult for him to get the money out of the country to buy the business. [ 4 ] He then explained that to overcome these problems, some chemists have developed a process that allows them to color the bills with a special ink to make them look like pieces of paper. This makes it easier for money to cross the border. A second product is then applied to turn the paper back into dollar bills. [ 5 ] This is actually a known "black money" type of fraud. [ 6 ] A second meeting was agreed upon during which the process was demonstrated.

This demonstration convinced the victims who decided to invest in the process to allow the accused to recover his money and then to buy their business. The accused explained to them that the product was very expensive but that it would allow him to double the value that the victims would be willing to invest. The victims therefore raised the sum of $101,450 and agreed on a third meeting. [ 7 ] This third meeting took place on July 24 th . At this time the accused took possession of the amount of $101 450 and began the chemical process.

During the process, the accused feigned a lack of product and explained that he had to return to Montreal to recover more. The victims, who began to suspect the scam, did not want to let the accused and his accomplice leave and chose to accompany him. Despite the insistence of the accused, they all went to Montreal. At one point, the accused, who then felt trapped, tried to flee with the BMW but Mr. Lajeunesse prevented him from doing so. The accused finally fled on foot. The money was found in the false bottom of a gallon placed in the trunk of the BMW. The accused was later identified and arrested. I.

POSITION OF THE PARTIES [ 8 ] The prosecution highlights the importance of the fraud attempt in terms of both value and preparation. In emphasizing the need for denunciation and deterrence, the prosecution suggests a sentence of 18 to 36 months in custody. [ 9 ] The defense asks the court to order a conditional discharge with probation and an obligation to perform hours of community service in addition to making a $5,000 donation. [ 10 ] The defense points out that the accused has permanent resident status and that a custodial sentence would put him at risk of

deportation from Canada. II. ANALYSE [ 11 ] In the sentence assessment process the court must consider the particular circumstances of the offender. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. [ 12 ] With respect to fraud the Court of Appeal has suggested various criteria to be considered in assessing the sentence [1] . The first criteria is the nature and extent of the fraud. Mr. Gbala’s fraud attempt is of a value of more than $100,000, which falls in the intermediate category.

It should be noted that this was a significant amount of money for the victims. [ 13 ] The second criteria In Levesque [2] is the level of preparation and planning, which is particularly high in this case. The court notes that Mr. Gbala travelled to another region on at least three occasions. He developed a complex scenario that required significant preparation. He used materials including painted bills, masks and toxic products. He was accompanied by an accomplice.

This was not an impulsive gesture but a highly thought-out plan. [ 14 ] The third criteria in Levesque [3] relates to the accused's conduct after the commission of the offences. The court considers three important elements. The first is Mr. Gbala’s guilty plea, which is a mitigating factor. The second is the fact that he attempted to flee the premises when he felt that the victims suspected fraud. The third was subject of debate and additional evidence.

The prosecution established beyond a reasonable doubt, through the testimony of Daniel Castonguay, that in September 2018, approximately two months after the offence, the offender approached Mr. Castonguay to purchase one of his properties. During the meeting, the accused demonstrated a product that he applied to green-painted bills which transformed them into $20 bills. He would have mentioned having a suitcase full of bills worth $5,000,000. Mr. Castonguay contacted the “Sureté du Québec” and the accused was arrested before a transaction was completed.

The accused is currently charged with attempted fraud in the District of Beauharnois for this event. We must determine the use that can be made of this evidence. The accused is still presumed innocent of this attempted fraud and it is not a question of sentencing the accused for these acts. But the evidence established beyond any doubt that the accused approached Mr. Castonguay in circumstances similar to our case, two months later.

This element is therefore retained solely in order to assess the accused's behaviour after the commission of the offence. [ 15 ] This brings us to the criteria of the criminal record of the accused. Mr. Gbala has no criminal record, which is a mitigating factor. But at the time of the infraction, the offender was the subject of an arrest warrant in a black money fraud case filed in Saskatchewan in July 2012. The prosecution has since stayed the proceedings against Mr. Gbala in Saskatchewan. Once again, the presumption of innocence applies in this case.

It has not been proven that the accused committed a fraud of this nature in Saskatchewan. However, there is evidence that this charge was pending when he committed the attempted fraud in our case. This fact adds context and provides a better understanding of the accused's conduct in July 2018. [ 16 ] In other words, despite the fact that he knew he was being charged with fraud, he committed the offence in our case. What's more, two months later, he approached someone again in a context quite similar to ours. [ 17 ] The fifth criteria discussed in Levesque [4] , is the benefit to the accused.

It must be remembered that the fraud was aborted before the end and the victims were able to recover their money. On the other hand, the evidence does not establish any other source of motivation than greed. [ 18 ] To support its suggestion of 18 to 36 months in custody, the prosecution has filed two decisions in similar matters. Both cases involved black money fraud. In R. v. Kwaidah [5] there were two unsuccessful attempts. The first was for $50,000 and the second for an unknown value. The accused had no criminal record and was in the process of obtaining refugee status.

The court imposed a 12 months sentence. [ 19 ] In R. v. Glassco [6] , the loss was $63,000 and the facts were highly similar to our case. The sentence imposed was 2 years and 3 months. III. PERSONAL SITUATION OF THE ACCUSED [ 20 ] The accused is 37 years old and has testified and expressed remorse and forgiveness to the victims. He prepared a letter of apology for the victims but chose not to send it at the suggestion of his lawyer. He is currently employed full-time and has a wife and two children. His wife was reportedly diagnosed with cancer a few months ago.

He has permanent resident status in Canada and expresses his fear of being deported from the country, which is the reason for his request for a conditional discharge. The risk of expulsion [ 21 ] In support of its position, the defense produced a letter [7] from an organization called the Canadian Immigration Council which concluded that if Mr. Gbala were found guilty of a theft offence under s. 334(

a) Cr.C., he would be rendered inadmissible under s. 36(1) of the Immigration and Refugee Protection Act ( IRPA ). He would therefore inevitably be deported from Canada. [ 22 ] This letter is of little use since it deals with a situation where Mr. Gbala would be convicted of a theft offence. The charge to which he pleaded guilty is attempted fraud, which carries a maximum penalty of 7 years. [ 23 ] Nevertheless, s.36 (1)(

a) of the Immigration and Refugee Protection Act provides that a conviction for an offence under

an Act of Parliament, for which a term of imprisonment of more than six months is imposed, is inadmissible. A sentence of more than 6 months could therefore have significant legal consequences for the accused.

[ 24 ] On the other hand, an accused's interest in being discharged because of his or her precarious status does not necessarily lead to a discharge [8] . It must be considered in relation to all the circumstances of the case. [ 25 ] Here, few factors militate in favor of a lenient sentence. The fraud was skillfully orchestrated with the sole purpose of defrauding large sums of money for personal gain. IV.

AGGRAVATING AND MITIGATING FACTORS [ 26 ] As aggravating factors, the court retains: • The extent and value of the fraud attempt; • the level of planning and complexity of the fraud; • conduct subsequent to the infraction; • the offence was motivated by greed; • the offence was committed while he was the subject of similar charges in another Canadian province. [ 27 ] As a mitigating factor, the court noted the following: • The guilty plea and remorse expressed; • the absence of a criminal record; • the absence of financial loss for the victims. [ 28 ] Although it was an attempt, the fraud was almost complete had it not been for the last-minute reaction of the victim. [ 29 ] The court concludes that a discharge would be contrary to the public interest and that a custodial sentence is necessary.

THEREFORE, THE COURT: ORDERS the accused to serve a sentence 15 months of imprisonment. __________________________________ MARK PHILIPPE, J.C.Q. Mr. Simon Pier Cossette Crown Attorney Mr. Louis André Hubert Defense Attorney Date of hearing: October 31 st , 2019