2020 QCCQ 3571, 2020 QCCQ 3571

R. c. Chandroo 2020 QCCQ 3571 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal and Penal Division» N os : 500-01-166446-184 500-01-195622-193 DATE: September 15, 2020 BY THE HONOURABLE SALVATORE MASCIA. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. RICHARD CHANDROO Accused ____________________________________________________________________ DECISION ON SENTENCE ______________________________________________________________________ I. INTRODUCTION [ 1 ] After a trial that lasted far too long, I found the accused, Mr.

Richard Chandroo, guilty of several counts of fraud [1] . The charges stem from three separate files and include four different victims: Samuel and Thelma Daniels, James Andrews and Nikola Rajcic. All the victims were seniors well into their 80s who, by their generosity of spirit, lent the accused tens of thousands of dollars under false pretences. [ 2 ] In a nutshell, the victims all lent money to the accused in order to help him recover his “fair share” of his late grandfather’s estate. Unbeknownst to the victims, however, the estate had been liquidated several years earlier.

Though he had received his “fair share” of the inheritance, the accused continued to perpetuate the lie that he stood to inherit monies or properties that no longer existed. [ 3 ] The accused’s offending was sustained over a long time.

It was planned, deliberate and deceitful, requiring for its implementation the recounting of many lies, the fabrication of forged documents and the personification (over the phone) of various individuals. [ 4 ] Through his fraudulent tactics, the accused was able to swindle a little over $900,000 from his victims: $82,000 from the Daniels, $19,500 from James Andrews and circa $800,000 from Nikola Rajcic. As we shall see, the offences perpetrated by the accused had a significant impact on the lives of the victims given their personal circumstances (i.e., age, health and financial situation).

Some of them imperiled their own financial stability by borrowing on their credit card to help the accused recover his supposed inheritance. [ 5 ] I must now pronounce sentence on a significant fraud that has devastated the victims both financially and psychologically. II. OVERVIEW OF THE FACTS OF THE CASE [ 6 ] The facts can be briefly summarized, but it is necessarily a

summary [2] . The offender managed to convince one victim after another to lend him money on the promise that they would be repaid as soon as he received his inheritance from his late grandfather’s estate. To reassure his victims that he would soon be coming into money, he showed them all a copy of his grandfather’s will which entitled him to a 25% share of an estate valued at 2.6 million dollars. Some of the victims were even given a copy of the will.

[ 7 ] There was no issue concerning the authenticity of the will or the accused’s right to a 25% share in the liquidated assets of the estate. There was, however, one major problem: the estate was liquidated several years earlier. Conveniently, none of the victims were told that the properties mentioned in the inventory of assets had been sold and that the proceeds therefrom had already been distributed to the rightful beneficiaries, including the accused for his 25% share of the estate.

On the contrary, they were all led to believe that the assets still existed or that they were on the verge of being sold. [ 8 ] They even received reassuring letters—purportedly drafted by the executor of the will (the accused’s uncle living in California, Mr. Teddy Chandroo)—indicating that the estate will soon be liquidated and that they will be promptly reimbursed for all sums lent to the accused. The letters, however, were all forgeries. [ 9 ] The victims also received telephone calls from someone purporting to be Teddy Chandroo.

Here, again, the purpose of the calls was to allay any qualms the victims may have had with regards to the authenticity of the will, the value of the estate and the accused’s claim that he will soon be coming into money. The voice of the man purporting to be Teddy Chandroo even assured them that his nephew was an honest fellow and that they will soon be getting their money back.

The evidence, however, clearly established that the real Teddy Chandroo never called the complainants. [ 10 ] For one reason or another, the liquidation of the supposed assets of the estate (and the remittance of the accused’s share therein) was constantly delayed. In letters purportedly drafted by lawyers in California and Trinidad and Tobago, the victims were informed that additional sums of money were needed to disburse the costs of liquidating the estate.

All the letters were forgeries. [ 11 ] Likewise, in letters purportedly drafted by Teddy Chandroo, requests were made for additional sums to defray the costs of the estate. In all cases, the letters indicated that the proceeds of the estate would be distributed without undue delay upon payment of the additional costs. Time and again, the victims dished out more and more money in the hope that a simple payment of estate taxes or costs could speed up the liquidation of the estate and the eventual reimbursement of the money that they lent to the accused.

The letters were all forged and in the end none of the victims got a penny back from an estate liquidated and settled several years ago. [ 12 ] Another delaying tactic—and an excuse to borrow more money from the victims—consisted in the accused telling the victims that his uncle had “become hostile” and that he would now have to sue to get his money back. Court action in California (the residence of his uncle) would require hiring an American attorney. Of course, money would be needed to retain counsel.

They were told by the accused that if they didn’t give him more money they would lose the chance of recovering the money they had already lent him. Feeling that they had no choice, the complainants once again poured more good money after bad money. In the end, no proceedings were ever instituted by the accused against his uncle for the supposed recovery of his fair share of the estate [3] . [ 13 ] In his defence, the accused denied having drafted any of the letters denounced as forgeries (i.e. those purportedly written by his uncle and by attorneys in California and Trinidad and Tobago).

Likewise, he denied any involvement in the phony calls made to the complainants reassuring them that the estate will soon be liquidated and that all sums they lent to the accused will be promptly reimbursed to them. As explained in my decision on the verdict, however, the weight of the evidence established without any doubt that he had a hand in all the forged documents and fake phone calls. In all logic, who else but the accused would benefit from such a ruse? If he didn’t forge the documents himself, he certainly had a hand in their creation. [ 14 ] In essence, his defence was one of good faith.

He claimed that he never misrepresented the nature of the will to any one of the victims. While admitting that he received certain proceeds from the sale of two properties belonging to his grandfather’s estate back in November 2002, he held that the proceeds therefrom constituted only partial payment of his “fair share” of the estate. He sincerely believed that his grandfather’s legacy included additional properties (immoveables, money and shares) not specifically listed in the will or in the inventory of assets.

He also believed that his uncle was holding out on him, hiding the complete assets of the estate and shirking from his responsibilities as executor of the will. The victims knew that he had to sue his uncle in California in order to recover the sums rightfully owing to him. Thus, he borrowed money from the victims in order to finance his civil suit. According to the accused, all the victims knew that there was no guarantee that the proceedings would be successful. [ 15 ] In my reasons for judgment on the verdict, I discussed at length why the accused’s defence had to be dismissed as a total fabrication [4] .

From start to finish, his testimony was nothing but a pitiful attempt to provide an innocent explanation to very damning facts.

III. POSITION OF THE PARTIES ❖ Some preliminary remarks with respect to the indictments involving the Daniels and Mr. Andrews [ 16 ] The two indictments involving the Daniels and Mr. Andrews [5] were before the Court a second time. At the first trial, held in the judicial district of Longueil, the accused was found guilty on February 19, 2016, on four counts of false pretences and two counts of fraud.

On February 20, 2017, he was sentenced to a prison term of 18 months accompanied by various other conditions. [ 17 ] The Quebec Court of Appeal, however, ordered a new trial on account of an error in the application of the Browne v. Dunn rule . While waiting for the Court’s decision, he was granted bail on March 15, 2017, and only served 23 days of the original 18-month sentence. [ 18 ] In the present matter, the Crown asks that I pronounce a similar sentence of 18 months (minus the time served) for the cases involving the Daniels and Mr. Andrews.

I was also urged to pronounce the same accessory orders for restitution to the victims for their losses ( s. 738 of the Criminal Code ) and for a fine in lieu of forfeiture ( s. 462.37 (3) of the Criminal Code ). In the case of the Daniels, the amount defrauded was $82,000; not a penny was reimbursed. In the case of Mr. Andrews the fraud amounted to $19,500 of which the accused eventually reimbursed $7,000.

The orders at sections 738 and 462.37(3) of the Criminal Code take into account the partial reimbursement of the sums defrauded by the accused. [ 19 ] Counsel for the defence [6] does not question the correctness of imposing the same sentence for his client’s conviction in this (the second) trial as was imposed by the judge after the conviction on the first trial. [ 20 ] Although a sentence imposed at the first trial is not binding on the trial judge presiding over a second trial, it should not be made to appear that an accused is being punished for having appealed his conviction, and regard should be had to the sentence originally imposed [7] .

In the second trial before me, I cannot say that new facts have emerged that would justify modifying the sentence imposed by the first judge on account that it was either too high or too low. Accordingly, the same sentence will be meted out along with the same conditions and accessory orders. ❖ Detailed position of the parties with respect to a global sentence. —Position of the Crown [ 21 ] Essentially, the crux of the debate, lay in the imposition of a fit sentence for the fraud perpetrated by the accused on Mr. Rajcic.

In this matter, the accused swindled circa $800,000 from the victim over a period of five years (January 2012 to May 19, 2017 [8] ). The fraud only stopped when the victim’s daughters noticed that their father—a landlord who owned several block apartments —was having difficulty paying his bills. They alerted the police when they discovered a stack of IOUs signed by the accused in which he acknowledged owing several hundred thousand dollars to the victim [9] . [ 22 ] The Crown noted that a three-year period separated the frauds committed on the Daniels and Mr.

Andrews (December 2007 to January 1, 2009) to the period in which he started to prey on Mr. Rajcic (January 2012 to May 2019). Though the methods deployed to defraud his victims were similar in all cases (phony inheritance scheme), the offences constitute separate transactions and call for the imposition of consecutive sentences. Mindful of the principle of totality—which guards against the imposition of a crushing term of imprisonment when imposing consecutive sentences on an offender—the Crown asked that I impose an additional term of six years for the fraud perpetrated on Mr.

Rajcic. [ 23 ] Jurisprudence in hand, the Crown submitted that the range for offences of this nature is from three to eight years. For an individual like the accused, a cunning and persistent fraudster with a criminal record for similar wrongdoing, a global sentence of 90 months would be appropriate (18 months for the cases involving the Daniels and Mr. Andrews plus six years (72 months) for the case involving Mr. Rajcic). [ 24 ] For Crown counsel, denunciation and deterrence must be prominently addressed in pronouncing a fit sentence. It is

important that the Court send a clear message that those who might be so tempted, that sustained and deliberate fraud upon the elderly and vulnerable will mean going to jail for a significant period of time. [ 25 ] In support of her plea for an exemplary punishment, the Crown highlighted the following aggravating factors: • The sustained and deliberate nature of the fraud : With respect to the indictments involving the Daniels and Mr. Andrews, the fraud was perpetrated over a two year period. With respect to Mr.

Rajcic, the fraud spanned a period of five years. • The sophisticated or intricate nature of the fraud. To maintain the lie that he was about to inherit a large sum of money, the accused had to resort to all kinds of trickery, i.e. forged documents and voice impersonations over the phone. He was also very apt at conjuring additional excuses for extracting more and more money from his victims. To give but one example, he convinced the Daniels that his life was in danger lest he hand over $20,000 to some “bad men” that were after him. To save his life, the Daniels forked over the requested sum of money.

He promised to repay them as soon as he received his “inheritance”. • The significant amount of money defrauded from the victims On paper, the accused recognized that he owed the Daniels $91,000. It should be noted, however, that the said amount includes the sum of $12,000 that the accused promised the Daniels for “being good to him.” In reality, the money forked over by the Daniels to the accused amounted to $82,000. This being said, one has to consider that the Daniels borrowed on their credit card and on their line of credit in order to hand over the said money to the accused.

In the end, they had to mortgage their home in order to pay off the debts incurred. The loss of their money and the additional debts incurred as a result of the fraud has seriously impacted every aspect of their lives. More particularly, the constant challenge of meeting their financial obligations on a fixed income is a source of tremendous stress and anxiety. The Daniels lamented the fact that the family home they wanted to leave to their son would not be mortgage free when they pass away. With respect to Mr. Rajcic, the consequences were equally devastating.

As mentioned above, he was defrauded of some $800,000 at the hands of the accused. Though he owned several block apartments, he was having difficulty paying his bills. As for Mr. James Andrews, he was duped into lending $19,500 to the accused.

After instituting civil proceedings against the accused and winning a judgment in his favour for the said amount (plus costs plus interest) he recovered the sum of $7,000 [10] . • Psychological and health consequences for the victims Along with their financial struggles, the victims all stated that the experience impacted negatively on their personal relationships and on their ability to trust others. They also felt that the stress and anxiety they suffered was damaging to their overall health. • The fraud was perpetrated upon elderly and vulnerable victims.

All the victims were in their 80s at the time of the commission of the offences. One of the victims, Mr. Rajcic, passed away at the age of 89, just a few short weeks before the trial started. [11] • Breach of trust

The victims felt betrayed by a person they trusted. They were also ashamed and embarrassed by the manner in which they were conned and manipulated into handing him their money. • Criminal record The accused has a criminal record which includes a conviction for a similar fraud. On January 23, 2019, my colleague, Justice Robert Marchi found the accused guilty on one count of fraud and on one count of using or having acted on a forged document. He was sentenced to a prison term of 15 months on November 7, 2019 [12] .

The case is presently under appeal and the accused was granted bail pending the outcome of the Court’s ruling [13] . The victim in that matter was a young financial advisor (Mr. Rabkin) who was also duped into lending the accused money on the premise that he would be repaid as soon as he received a large inheritance from his grandfather’s estate. As with the files before me, the offender resorted to the same type of trickery (forging documents and impersonating individuals over the phone) to reassure his young victim that the liquidation of the estate was imminent.

Like the victims in the present file, he was never told that the estate of his grandfather was liquidated years earlier [14] . • Repeat pattern of offending despite pending charges and convictions for similar offences. As mentioned above, the indictments involving the Daniels and Mr. Andrews are before the Court for a second time. The charges in the said cases were laid in June 2012 and July 2012 respectively. The first trial ended with a guilty verdict on February 19, 2016, and the accused was sentenced on February 20, 2017, to serve a prison term of 18 months.

The accused appealed his conviction and was granted bail after serving but 23 days of the sentence. Despite the charges and despite the conviction, the accused persisted in the same manner of offending. While waiting for trial in the indictments involving the Daniels and Mr. Andrews, he repeated the same inheritance scam on Mr. Rajcic from January 2012 to May 2017. Worse still, he reoffended while out on bail on conditions imposed by the Court of Appeal. In the same vein, it should be noted that the accused reoffended while facing charges in the indictment relating to the similar fact case (Mr. Rabkin).

Despite the criminal proceedings against him, the accused appears unable to curb his penchant for deceit and the exploitation of vulnerable victims. In such a case, the protection of the public calls for a sentence which will not only denounce such behaviour but also serve to deter the accused and others from similar offending. • Codified aggravating factors Crown counsel aptly noted that the conduct of the accused is on all fours with the codified aggravating factors that a judge must consider when pronouncing sentence.

Section 380.1 (

a) of the Criminal Code , for instance, requires the sentencing judge to consider (among other factors) the scope or importance of the fraud, the number of victims as well as the harm incurred by the victims: Without limiting the generality of s. 718.2, where a court imposes a sentence for a fraud it shall consider the following as aggravating circumstances: (

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

c) the offence involved a large number of victims; and (c.1) the offence had a significant impact on the victims, given their personal circumstances including their age, health and financial situation; (…)

[ 26 ] From the Crown’s perspective, there were no mitigating circumstances. In particular, she noted the conspicuous absence of expressions of remorse or regret on the part of the accused. —Position of the Defence [ 27 ] Defence counsel, for his part, asked that I tack on an additional term of 30 months for the fraud perpetrated on Mr. Rajcic. When tallied up with the 18-month sentence for the frauds committed on the Daniels and on Mr.

Andrews, the global sentence would be one of 48 months. [ 28 ] In support of his position, defence counsel submitted the following arguments: • The accused has not reoffended since the charges were laid in the indictment involving Mr. Rajcic (May 2017) Here, defence counsel wanted to emphasize that the accused has stayed out of trouble for over three years. Thus, the sentence meted out by the Court should consider the very real possibility of rehabilitation.

In the same vein, the fact that he has stayed out of trouble for more than three years means that the sentence does not have to unduly emphasize deterrence and denunciation. • The accused is a family man and runs his own business Here, defence counsel emphasized the accused’s potential to being a productive and useful member of society. It was pointed out that a long term of imprisonment would not only hurt his business but negatively impact on his rehabilitation.

In mentioning that the accused was married and had two children under his care, defence counsel wanted to highlight the fact that others will also be negatively impacted by his detention (collateral damage). • Totality principle Along with the sentences to be handed out in the present cases, the accused must also face a 15-month prison term for the fraud he perpetrated on Mr. Rabkin (the similar fact file).

Though the conviction and the sentence meted out in that case is now under appeal, the possibility of tacking on an additional 15-month prison term to the present sentence would result in a crushing, excessive and disproportionate sentence. Moreover, the risk of a potentially excessive global sentence would negatively impact the accused’s efforts at rehabilitation. • Parity principle Defence counsel pointed to case law in which the harshest sentences of six to nine years of imprisonment were reserved for frauds surpassing in magnitude, scope and sophistication the circumstances in the cases before the bar [15] .

Also, for frauds similar in nature to the accused’s wrongdoings in the present matter, courts have meted out jail sentences ranging from 30 months to 50 months [16] . ❖ Position of the parties with respect to a restitution order and an order of a fine in lieu of forfeiture [ 29 ] Along with a lengthy prison term, Crown counsel asked that I issue the following orders:

i. A restitution order requiring that the accused repay the victims for the total amount of the losses they incurred ( s. 738 of the Criminal Code ); ii. Impose a fine in lieu of forfeiture ( s.462.37 (3) of the Criminal Code ) . [ 30 ] Defence counsel did not object to a restitution order in favour of the Daniels and Mr. Andrews. Likewise, there was no issue with respect to pronouncing a fine in lieu of forfeiture for the losses incurred by the Daniels and Mr. Andrews. Counsel conceded that the said orders were issued by the judge who sentenced the accused the first time around in Longueil back in February 2017.

If only for the sake of consistency, it made sense to repeat the same orders. Not without concern, the amount involved ($82,000 to the Daniels and $12,500 to Mr. Andrews) was not beyond the financial reach of the accused. If granted a sufficient delay, it was feasible for the accused to remit to the victims the losses they incurred. [ 31 ] Defence counsel, however, took issue with the Crown’s request that I pronounce a restitution order and an order for a fine in lieu of forfeiture for the losses incurred by Mr. Rajcic.

Pointing to the provisions of the Criminal Code at s. 462.37 (4) vi), he noted that the failure to compensate the victim for the sum of $800,000 could result in a mandatory prison term of five years to be served consecutively to any other sentence [17] . The inclusion of such an order with its default provision of imprisonment would make the overall sentence manifestly excessive.

Counsel pointed out that it was doubtful whether the accused would have the capacity to pay such an amount of money after he was released from prison. [ 32 ] Crown counsel, for her part, reminded the court that a fine in lieu of forfeiture is not a constituent part of the global sentence imposed upon the accused, but rather a discrete order based on a different rationale [18] . Subsequent imprisonment for failure to pay the fine in lieu of forfeiture is an enforcement mechanism to encourage payment by those with the resources to do so [19] . IV.

THE EVIDENCE AT THE SENTENCING STAGE ❖ The victim impact statements [ 33 ] For the most part, the evidence at the sentencing hearing consisted in the reading of the victim Impact statements. Each of those statements speak of the financial and emotional devastation caused by the crimes of Mr. Chandroo. Given their age, health and the losses they incurred, it is doubtful that they will have the chance to recover financially and move on with the rest of their lives. One of the victims, Mr. Rajcic, passed away a few weeks before the trial began.

Before justice could take its course, he lived his last few years with the stress, shame and resentment of being conned and manipulated by a resourceful and relentless confidence man. [ 34 ] For the victims, the crime was akin to a “psychological mugging”, experiencing the same stress, anxiety and loss of trust as victims of violent crimes. Mindful of the fact that a proper sentence is not one that exacts vengeance, it should nevertheless take into consideration the consequences incurred by the victims as a result of the offender’s wrong doings.

Try as I may, I cannot offer a better account of the financial, psychological and physical toll the fraud had taken on its victims than that which was provided by the victims themselves in their victim impact statements. In the following section, I will include some extracts of the said statements that are representative of the real harm and loss experienced by each one of them. —The Daniels (Samuel Daniels and Thelma Daniels) [ 35 ] The victim impact statement was written by Mr. Daniels. In the following extract, he noted how the fraud negatively impacted his spouse’s psychological and physical well-being.

What made matters worse, she learned of the fraud while recovering from brain surgery: When we found out that we had been defrauded, my wife who was still recovering from surgery for a tumour on the brain went into shock and had to undergo a particular type of therapy.

[ 36 ] He explained how the fraud had a detrimental impact on their quality of life, both from a financial and emotional point of view. Our lifestyle has changed because financially we must deny ourselves many essential needs in order to be able to survive and pay for our medication monthly. Occurring frequently, my wife and I suffer sleeplessness at night and now we are stuck with a phobia of not trusting most people.

I am worried about my wife’s health. [ 37 ] Now in the twilight of their lives, it is doubtful that they will recover: We are senior citizens and at our age we are still paying a mortgage which could have been paid off long ago if Richard Chandroo did not come to disrupt our lives. The force of circumstances forced us into a mortgage renewal which will never be paid off. [ 38 ] Let us not forget that the Daniels did not lose money in a get rich scheme. On the contrary, they lent money to an accused who—for one reason or another—needed their help.

At first, money was lent in order to help the accused in his supposed efforts to recover his “rightful share” of his grandfather’s estate. Then, money was lent in order to help the accused get out of one difficult situation after another, i.e. to pay off some thugs who threatened his life or to pay off debts wrongfully attributed to the accused. [ 39 ] The Daniels in short, lent money out of the kindness of their heart. The accused, for his part, cleverly and shamelessly exploited their generosity. In return for their kindness, all they got was grief—their health and financial situation are forever compromised.

Under such circumstances, one can understand that the Daniels’s ability to trust others has been seriously eroded. —Mr. Nikola Rajcic [ 40 ] Mr. Rajcic passed away before the trial began. The victim impact statement was drafted by his daughter, Ms. Natasa Rajcic.

On the financial front, she described how the fraud impacted negatively on her dad’s ability to pay his bills and maintain the apartment buildings he owned : Over the last several years, we noticed that my father was having more and more difficulty in paying his bills which was unusual since his business had always been and should have been more than enough to support his financial needs. [ 41 ] Her father was a proud man who through hard work and sacrifice managed to make a life for himself and his family.

In the time frame in which the accused had him on string, he was too ashamed and embarrassed to tell anyone of his financial woes. He even had difficulty turning to his daughters for help: Embarrassed and totally not in his nature to do so since he was an extremely proud man, he occasionally had to turn to both my sister and me for financial help, which he did with hesitation. … All his life, my father was someone who was extremely modest and humble and had always been very careful in how he spent his money.

He was the type of person who would cross town to save two dollars and did everything in his power to save where he could. He definitely was not known for frivolous nor careless spending which is why this ongoing financial manipulation over a period of seven years is so difficult to comprehend and extremely devastating for our family . [ 42 ] His daughter also noted the emotional impact suffered by her father. On account of the fraud, a once energetic, vital, motivated and confident man experienced persistent feelings of anxiety, anger, and depression. In the end, he was but a shadow of his former self:

In the several years leading to our horrifying discovery regarding Mr. Chandroo, we had seen my father go from an energetic, motivated, hardworking, driven and happy person to someone who displayed a lot of anxiety, sleeplessness, outbursts, edginess and withdrawal. […] Years prior to finding out the truth in May of 2017, my father had been visibly very preoccupied with something which we were not aware of when he would regularly receive these secretive phone calls (we later learned were from Mr.

Chandroo) he would be visibly upset and agitated after the phone calls. [ 43 ] She lamented the fact that the fraud prevented her dad from profiting from the last few years of his life: He (my father) became a deflated man … Not only did Mr.

Chandroo con an enormous amount of money from my dad but he stole what should have been the best years of his life … When he should have been able to sit back and enjoy the fruits of his labour and be proud of what he had accomplished throughout his entire life, instead he withdrew from shame and embarrassment for having been fooled not once nor twice, but from seven years of constant manipulation and deceit.

He became depressed, would have nightmares, became submissive and lost his vitality and zest for life. [ 44 ] She recounted her dad’s reaction when he learned that he was the victim of an elaborate sting orchestrated by the accused: at first, shock and disbelief; then, a spiral of negative thought patterns and feelings of helplessness: When I sat at his kitchen table in May of 2017 surrounded by my sister and my husband and revealed what I had discovered at the courthouse, I saw for the first time in my life the unravelling of my father.

He went limp in disbelief and looked lost as he listened quietly . [ 45 ] The fraudulent manoeuvres of the accused also had consequences for Ms. Natasa Rajcic and her sister. Financially strapped on account of the continuous flow of money he lent to the accused, Mr. Rajcic had to borrow heavily on his credit line in order to pay his bills and maintain his buildings. The debts were assumed by his legal heirs. As Ms.

Rajcic explained: Although extremely grateful to my father for all his sacrifices and all that he has provided for us, my sister and I inherited these buildings which are still in much need of expensive repair and in addition we had also inherited a $120,000 line of credit. -Mr. James Andrews [ 46 ] Mr. Andrews did not draft a victim impact statement.

At the sentencing hearing, Crown counsel simply relayed the contents of a conversation she had with the victim regarding the toll the fraud had on him. [ 47 ] In essence, since getting involved with the accused, both he and his wife have suffered from stress and anxiety. Both have had trouble sleeping at night. He also recounted how the fraud impacted negatively on his marriage: It put a strain on our relationship. It led to distrust between us and with other people . —The accused [ 48 ] I know very little of the accused. He did not testify at the sentencing hearing and there was no presentence report.

As is his right, he has maintained his innocence. What more can he add on sentencing?

[ 49 ] From defence counsel’s representations on sentencing (and from what I could gather during the trial), the accused is married with children. Along with a criminal record of fraud (the similar fact case involving Mr. Rabkin), his priors read as follows: • Break and enter in 1993 for which he was sentenced to a probation for two years; • Uttering threats in 1998 in which he was handed a probation for six months; • Assault and breach of conditions in 2002 for which he was sentenced to a probation of two years. [ 50 ] At trial, he claimed to be a businessman who dealt in the buying and selling of memorabilia.

Though his reported income in the years concerned by the present indictments was in the range of 30 to 35 thousand dollars per annum, he claimed to have an inventory of goods valued in the hundreds of thousands of dollars at the very least. He boasted, for instance, to have an autographed photo of Michael Jackson worth one million dollars. At the sentencing hearing, he asked that I delay the detention order so that he may sell the card and pay back the victims.

Not without surprise, the said item was not authenticated and I dismissed his offer as a ruse to wiggle out of a sure detention. [ 51 ] To the extent that I was able to assess his character in the witness box and from the materials tendered, I found that the accused is nothing more than a conman or a confidence trickster. The combined effects of his testimony and the evidence paints a picture of a scheming and cunning person who is extremely free with the truth and will stop at nothing to bleed his victims dry.

The frauds he perpetrated over a number of years demonstrate a high degree of criminality. [ 52 ] The accused has no conscience and not the slightest remorse about his wrongdoings. Even when his victims had to borrow on credit to help him out, he did not relent. He was doggedly persistent in the pursuit of his quarry. He only failed to extract more from his victims when they discovered the deception.

Everything points to the conclusion that he would have continued to extract as much money as he could from the victims without the slightest concern about ruining them financially and psychologically. [ 53 ] The accused was also a very fearless and confident trickster. Even when unmasked, he tried to trick his victims into lending him more money. In the case of Mr. Rabkin (similar fact evidence), for instance, he held out the promise of paying him back with a loan of $75,000 he contracted from a loan shark (the said loan corresponding to the amount he borrowed from the victim).

There was only one hitch, in order to secure the said loan $75,000, he had to give the loan shark an advance of $5,000. Feeling that it was his only chance to get his money back, Mr. Rabkin paid the requested sum. The record shows that the accused never secured the loan; it was all a ruse to squeeze more money from the victim. [ 54 ] Likewise, the accused displayed the same brazen attitude in his dealings with Mr. Rajcic. At one point, the accused offered to repay the victim with a certified check of $600,000.

Here, again, the check came with strings attached—the victim would have to fork out a couple of thousand dollars in order to offset certain banking charges relating to the issuance of the check. Though the victim did not fall for this ruse, the ploy demonstrates the accused’s ability to stop at nothing in order to shake his victims down for more money. [ 55 ] In his testimony, he demonstrated an innate ability to string together a series of improbable explanations to excuse his conduct.

When caught in a contradiction (or when he came to the realization that his account would not hold muster), he simply backtracked on his testimony and fabricated more lies. For the most part, his entire testimony was a futile effort to tailor an innocent explanation on very damning facts. He even went so far as to lay part of the blame for the lost money on a dead man, Mr. Burnash. For that matter, the bulk of the evidence pointed to the fact that Mr. Burnash was yet another victim of the accused’s inheritance scheme.

The accused has no shame. [ 56 ] The breezy manner in which the accused plays with the truth and deflects blame on others shows that he is incorrigible. Even when charged for the frauds perpetrated on the Daniels, Mr. Andrews and Mr. Rabkin, he reoffended by conning Mr. Rajcic with the same inheritance scheme. Just as disconcerting, part of the reoffending occurred after being released on bail by the Court of Appeal following his conviction for the frauds involving the Daniels and Mr. Andrews.

Clearly, the accused is not the type of person to be deterred by the criminal process or court orders. [ 57 ] Even at the very end, he tried to con his way out of immediate detention by claiming that he wanted the opportunity to compensate the victims by selling his autographed Michael Jackson photo. In short, deceit and cunning are part of his lifestyle.

V. PRINCIPLES ON SENTENCING —Denunciation and deterrence as principal sentencing factors in large-scale frauds and in frauds targeting the elderly and thevulnerable [58] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is to contribute, along with crime preventioninitiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender.

Thestated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion ofoffender responsibility and acknowledgement of harm done. [59] Sentencing is not an exact science. There are no “sentence-dispensing algorithms”[20]. The emphasis to be given to each ofthese objectives will vary according to the offence for which the offender is being sentenced, the circumstances of the offence and thecircumstances of the offender.

In matters of large-scale frauds with serious consequences for the victims, general deterrence is central tothe sentencing process[21]. [60] In R. v. Gray (ON CA), the court explained the paramount importance of deterrence in sentencing when itcomes to fraud as follows: [T]here are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normallycommitted by a person who is knowledgeable and should be aware of the circumstances.

That awareness comes from sentences given toothers[22]. [61] Even in the presence of mitigating factors, such as rehabilitation, remorse, absence of prior convictions and restitution tovictims, deterrence and denunciation remain the main objectives in sentencing those accused of large scale frauds. In this regard, theQuébec Court of Appeal in Wellman c. R., QCCA 524 CanLII, quoted with approval the comments it made several years earlier in thecase of R. c. Coffin, QCCA 471 : [23] Dans R. c.

Coffin, à la faveur d’une revue jurisprudentielle d’envergure, la Cour a reconnu que, malgré l’existence d’élémentsdémontrant la présence d’un processus de réhabilitation chez le délinquant, les objectifs de dénonciation et de dissuasion justifiaient despeines de détention dans le cas de fraudes importantes, planifiées et d’une certaine durée : [60] En l’espèce, la poursuivante a raison de prétendre que les diverses cours d’appel du Canada ont généralement infligé des peinesd’emprisonnement dans le cas de fraudes importantes et planifiées qui se sont déroulées sur des périodes plus ou moins prolongées. [61] Les tribunaux ont alors reconnu que, pour atteindre les objectifs de dénonciation et de dissuasion, une peine d’incarcérations’imposait bien que le contrevenant 1) n’ait pas d’antécédents, 2) jouisse d’une bonne réputation dans son milieu, 3) ait parfoisremboursé, en partie, les victimes, 4) manifeste des remords, 5) ne soit pas enclin à récidiver. [62] In the same vein, Justice Hill in R. v.

Atwal, 2016 ONSC 3668 , commented that attenuating factors on sentencing,such as a good employment and want of a criminal record, are of secondary importance to the principle of general deterrence whensentencing for fraud.

More particularly, the fear of being unmasked is especially effective in deterring the otherwise lawful citizen who—for the sake of profit—is willing to take the risk that his fraud will go undetected: [42] General deterrence tends to have greater impact in the case of embezzlement-type crimes, whether fraud or theft, being criminalconduct where persons usually plan and deliberate about it to some extent. Put differently, law-abiding persons, with good employmentrecords and families, are the ones most likely to be deterred by the threat of severe penalties.

(References omitted) [63] The objective gravity of the crime of fraud also mandates that deterrence be a central factor in the sentencing process.

TheCourt in Wellman, for instance, noted that since the decision in Coffin, the maximum sentence for fraud at s. 380 (1) of the CriminalCode jumped from ten to 14 years of incarceration—highlighting, therefore, the objective gravity of the offence and the need to updatethe range of sentences for such a crime: [24] De plus, postérieurement aux événements qui ont donné lieu à l’arrêt Coffin, le législateur fédéral a modifié le paragraphe 380 (1)du Code criminel pour augmenter la peine maximale pour fraude de 10 à 14 ans de détention, comme l’a d’ailleurs signalé le juge depremière instance. [25] Comme l’a mentionné la Cour dans l’arrêt R. c.

Chicoine, cette modification législative reflète la gravité objective accrue desinfractions de cette nature aux yeux du législateur, ce qui conduit à une mise à jour de la fourchette des peines applicables à ces crimes. [References omitted] [64] Through the courts, society must express its abhorrence of particular types of crime and the only way the courts can showthis is by the sentences they pass[23]. In the present matter, an appropriate sentence must reflect values which we hold dear as a society,namely the protection of the weak, elderly and vulnerable.

Those who prey on such victims must be denounced for their cowardice andabject lack of conscience. In R. v. Nichols, (ON CA), at paragraph 48, Justice Laskin quoted with approval the wordsof the trial judge to highlight the paramount importance of denunciation and deterrence in sentencing the conmen who exploit thevulnerable members of the community: The fraud committed by Nichols warranted a significant penitentiary term. Three considerations mentioned by the trial judge supported asubstantial sentence, the need to deter and denounce those who prey on the elderly and vulnerable.

In the trial judge’s words, predatorswho target the weak, the sick, the elderly and the disadvantaged attract the most public opprobrium simply because such cowardlyconduct strikes at the core values of our society, mainly fairness and decency. Where large sums of money are involved and there is noprospect of recovery, the principles of public denunciation of the conduct and deterrence to others are the dominant considerations[24]. [65] Vulnerable and elderly persons in our community need to be protected from the malevolent conduct of conmen like theaccused.

In the twilight of their lives, these victims are entitled to feel secure that the assets they took a lifetime to build will not be stolenfrom under them. Given their age, their health and financial situation, they should not have to live with the stress and anxiety of not beingable to afford the necessities of life. Nor should they live with the embarrassment or shame of being conned by an incorrigibleconfidence man. —THE PRINCIPLE OF PROPORTIONALITY [66]

Section 718.1 of the Criminal Code explicitly states that a sentence must be proportionate to the gravity of the offence andthe degree of responsibility of the offender. Seriousness of the offence will depend on the nature of the offence, the gravity of the harmcaused to the victims and the degree of moral culpability of the offender. [67] In the present matter, the moral blameworthiness of the accused is high.

In order to sustain his inheritance scam and keep hisvictims on a string, the accused proved quite resourceful in fabricating one lie after another—resorting, whenever necessary, to forgingdocuments and impersonating various individuals. [68] Always on the topic of his moral turpitude, he surely knew that siphoning money from the victims would expose them tofinancial ruin. Despite knowing the consequential harm of his actions, he continued to extract more and more money from them.

Hisrelentless exploitation of the victims without the slightest qualms of conscience can only be described as despicable, sinister andabhorrent and engages a high degree of moral culpability.

[69] From the evidence, there is no indication that the accused committed the frauds on account of an addiction to drugs,gambling or some health issue. I can only conclude that it was out of sheer greed that he preyed on his victims. His actions weredisgraceful. [70] In the frequently cited and seminal case of Lévesque c. Québec (Procureur general), QCCA, the Court ofAppeal set out the analytical framework for assessing the intrinsic responsibility of the accused in cases of fraud.

In the followingsection, I will list the factors that apply to the present matter: • The nature and extent of the loss. • The accused has swindled his victims of over $900,000. According to the case law, it is characterized as a large-scale fraud. • The degree of planning and premeditation Every fraud requires planning and premeditation. In the case of the offender in the present matter, the degree of dishonesty, planning,skill, creativity and deception needed to pull of the fraud was exceptionally high.

Along with lying to his victims about the fact that hisgrandfather’s estate had been liquidated years earlier, the accused’s scheme entailed the forging of many documents (letters from hisuncle and letters from lawyers holding out the promise of a quick settlement of the estate upon the remittance of certain sums). Toreassure his victims, he would even resort to the personification of individuals purportedly involved in the liquidation of the estate (i.e.,his uncle and lawyers in foreign jurisdictions).

The accused was particularly apt at inventing one excuse after another to explain thedelays in the liquidation of the estate. Unfortunately for the victims, every excuse (convincingly delivered) came with the request formore and more money. • The accused’s actions after the commission of the offence. The accused did reimburse Mr. Andrews $7,000 of the $19,500 he defrauded from him. Two factors, however, blunt the mitigatingaspects (if any) of this partial reimbursement. Firstly, the said reimbursement only occurred after civil and criminal proceedings wereinstituted against the accused.

Secondly, from the evidence at trial, it appears as if the sums remitted to Mr. Andrews came from themoney the accused defrauded from Mr. Rajcic. With regards to the Daniels and Mr. Rajcic, not a penny has been reimbursed. In the course of his testimony, the accused stated that hewas precluded from reimbursing the said victims on account of court orders (or police warnings) not to communicate with them. Ofcourse, this excuse has to be totally dismissed.

If the accused was truly sincere about reimbursing his victims, he could have madearrangements through one the many counsels who have represented him at one time or another in the present proceedings. When his victims confronted him with the fraud, the accused tried to portray himself as a victim. Mr. Daniels, for instance, tried to talk tothe accused after learning that the estate had been liquidated five years earlier. The accused, however, didn’t seem to care. On a chancemeeting at the Champlain Mall between Mr.

Daniels and the accused, the latter became defensive and shot back with the words: “Youand Teddy are working against me.” Mr. Andrews, for his part, noted that the accused had “changed attitude” and became “hostile”when he (Mr. Andrews) shut off the money-lending tap. • The accused’s previous convictions As stated earlier, the accused has a criminal record which includes a prior of fraud (conviction for fraud in the similar fact case). What isparticularly damning for the accused is that he brazenly used the same modus operandi to defraud his victims in the present matter as hedid for his previous conviction.

The accused even repeated the same pattern of deceit while out on bail on conditions given to him by the Court of Appeal in March 2017(following a conviction on fraud charges in February 2017 involving the Daniels and Mr. Andrews). Though the conviction from thejudgment in first instance was eventually set aside (September 2018), part of the accused’s reoffending occurred while he was aconvicted felon.

Clearly, he is a fearless, daring and incorrigible confidence man who is not easily deterred by court proceedings or the risk ofimprisonment. • The personal benefits generated by the commission of the offences, The accused acted out of greed or personal self-interest. Nothing in the evidence can explain (not excuse or justify) his conduct in theleast.

There was no indication, for instance, that he suffered, from a medical condition or that he was addicted to gambling or drugs. • The authority and trust existing in the relationship between the accused and the victim Every fraud entails the abuse of a victim’s trust. Here, the accused gained and maintained the trust of his victims via a planned andelaborate fraud.

In the usual sense, however, it could not be said that the accused held or used a position of trust to commit the offence(i.e. financial or legal advisor). • The underlying motive for the crime As mentioned above, greed is the only explanation for the accused’s crimes. I should add that for personal gain the accused was totallyoblivious to the consequences his actions had on his victims. —The Principle of Totality [71] The totality principle applies where a court imposes consecutive sentences and is set out at s. 718.2 (

c) of the CriminalCode:

Section 718.2 - A court that imposes a sentence shall also take into consideration the following principles: (

c) where consecutive sentences are imposed, the combined sentence should not by unduly long or harsh. [72] In essence, the principle of totality is closely connected to the principle of proportionality as it ensures that the globalsentence meted out for consecutive offences is proportionate to the gravity of the offence and the degree of responsibility of the offender.In R v M. (C.A.), (SCC), [1996] 1 SCR 500: Justice Lamer explained the principle as follows: 42 In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form ofthe “totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentencesfor multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [73] In practice, a court fixes appropriate sentences for each offence, then considers whether or not adjustments have to be madein order to achieve a total sentence that does not exceed the overall culpability of the offender.

The totality principle ensures that theoffender is treated fairly and avoids the imposition of a crushing sentence that would deprive him/her of any hope of rehabilitation and areturn to normal life as a useful citizen. [74] In the present matter, however, several factors serve to blunt the attenuating effect of the totality principle on sentencing orto restrict its application to the present cases. Firstly, one must take into consideration that the frauds perpetrated on the Daniels andMr. Andrews, on the one hand, and the fraud perpetrated on Mr.

Rajcic are distinct offences, rather than part of an ongoing string ofoffences. To this effect, one notes the significant time gap of three years between the offences: while the Daniels and Mr. Andrews were

defrauded for the period of December 2007 to January 2009, Mr. Rajcic fell prey to the fraudulent conduct of the accused from January2012 to May 2017. [75] Secondly, the legal circumstances of the accused were quite different between the first and second sets of offences. Whenconning the Daniels and Mr. Andrews out of their money, the accused had no pending charges of fraud against him. When conning Mr.Rajcic, on the other hand, the accused was already embroiled in criminal proceedings relating not only to the Daniels and Mr. Andrews,but to Mr.

Rabkin as well. [76] Finally, it’s through the force of circumstances that all three indictments implicating four different victims are before me.Normally, the accused’s legal situation regarding the Daniels and Mr. Andrews should have finished in February 2017 following hisconviction and sentence for fraud in the judicial district of Longueil. Thanks to a successful appeal on a point of law, the case was retriedbefore me at the same time as the indictment involving Mr. Rajcic. Were it not for the appeal, I would have presided but one trial (thatinvolving Mr.

Rajcic) and been called upon to pronounce only one sentence for a man with a previous conviction of 18 months for afraud (not to mention another conviction of 15 months for a fraud perpetrated on Mr. Rabkin). [77] Presiding but one trial (the one involving Mr. Rajcic) would have removed from the sentencing equation any concerns abouta global sentence that is disproportionate or crushing. His 18-month conviction in February 2017 would have merely figured as anaggravating factor for the fraud the accused perpetrated over a five-year period on Mr.

Rajcic. [78] On the issue of totality, defence also asked that I take into consideration the fact that the accused faces a 15-month jail termfor the fraud regarding Mr. Rabkin. With respect, I cannot accede to defence counsel’s plea. It should be remembered that the accused’sconviction and sentence in the matter concerning Mr. Rabkin is under appeal. Though I am very familiar with the damning facts of thatcase, it is not proper for me to presume or to guess what the Court of Appeal will decide.

My sentence cannot be based on hypotheticalsituations that may or may not come to fruition. —Parity in sentencing [79] In crafting the proper sentence, a court must take into account the principle of parity, i.e. “a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances,” (section 718.2 (

b) of the CriminalCode). An appropriate sentence, therefore, must be mindful of the punishments meted out by our courts for other similarly situatedaccused. [80] Though courts should strive for consistency as a matter of abiding importance for the administration of justice, anycomparative study of the case law has its inherent limitations. To begin, it is difficult, if not impossible, to find case law where thecircumstances are identical to the case at bar. Next, sentencing is an inherently individualized process.

It is therefore plausible for twooffenders having committed the same offence under similar circumstances to receive different sentences. As justice Lamer explained inR. v. M. (C.A.), at para. 92. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred[25]. (References omitted) [81] Appreciating these limitations upon the exercise of looking at comparable cases, one can nevertheless draw some very clearindications of a sentencing range from a number of the decided cases. [82] Generally speaking, the punishment meted out for frauds is directly related to the magnitude of the fraud.

In R. c. Chicoine,2012 QCCA 1621 , the Court outlined the applicable range for important frauds as follows:

[Translation] [76] In this vein, a review of recent Canadian case law reveals: 76.1. that with respect to significant fraud, sentences fall within a range of 6 to 10 years, and not 3 to 5 years, with the most serious casesgiving rise to even longer sentences; 76.2. that, between 2004 and 2012, out of 54 cases of fraud involving more than one million dollars, 44 cases resulted in sentences of 3years or more, 31 cases resulted in sentences of 4 years or more, 25 cases resulted in sentences of 5 years or more and 21 cases resultedin sentences of 6 years or more[26]. [83] In Chicoine, the accused ran a scheme (false billings in the construction industry) that defrauded the Canada RevenueAgency and Revenue Quebec of 17.5 million dollars.

The fraud was not only complicated and sophisticated (i.e. involving the use ofoffshore accounts), it was also sustained over a long period of time. Following a guilty plea on counts of fraud, money laundering and ofhaving participated in the activities of a criminal organization, the first judge sentenced the accused to a total of 45 months ofincarceration. On appeal, the original sentence was increased to a term of 84 months. [84] The decision in Chicoine also contains an exhaustive review of sentences meted by out by our courts in matters of significanttax fraud (paras 115-124).

The amounts defrauded ranged from 2 million to 38 million dollars and the sentences imposed by the courtsranged from three years to ten years. At paragraph 125 of the decision, the Court observed that for the nature of the offences committedby the offender, an appropriate sentence would be in the range of six to ten years of incarceration.

Considering the guilty plea, the Courtopted for a figure at the lower end of the range. [85] Using Chicoine as a point of reference, defence counsel argued that a global sentence of 48 months would adequately takeinto account the moral culpability of his client while respecting the principle of parity in sentencing. For one thing, the amountsdefrauded in Chicoine were significantly greater than the amounts defrauded by the accused in the present matter.

For another thing, thetax fraud committed by the accused in Chicoine was far more elaborate and sophisticated than the pedestrian “inheritance scheme” of theaccused before the Court. [86] Comparisons between cases are always difficult to make. However, it should be noted that the accused in Chicoine—unlikethe accused in the present matter—pled guilty. In the case of Chicoine, the accused’s plea of guilt may be considered as an expression ofremorse and a sign of rehabilitation[27]. Also, a guilty plea saved the justice system the time and expense of a lengthy trial[28].

Ofcourse, the accused in the matter before the Court will not be punished for maintaining his innocence and insisting that the Crown proveits case against him. Likewise, the accused will not be punished more harshly for the fact that he has shown no regret or remorse for hisdeceitful conduct and for the harm incurred by his victims. The claim of innocence is usually incompatible with the expression ofremorse.

This being said, the want of a guilty plea has simply deprived the accused of a very significant attenuating factor. [87] A comparison between the accused in Chicoine and the accused in the present matter also has to take into account that theformer—unlike the latter—did not have a criminal record. Along with convictions for break and enter (1993), uttering threats (1998),assault and breach of conditions (2002), the accused’s record includes a conviction for fraud. As we know, the facts and circumstancesrelating to that previous conviction were strikingly similar to the facts in the present matter.

By all accounts, criminal proceedings havehad no effect in curtailing the accused’s behaviour. As mentioned earlier, he defrauded Mr. Rajcic even though he was facing charges offraud committed against the Daniels, Mr. Andrews and Mr. Rabkin. Equally disconcerting, the fraud occurred while out on bail pendinghis appeal for his conviction in the file involving the Daniels and Mr. Andrews. [88] Finally, in a comparative analysis of the two cases, it should be noted that the accused in the present case—unlike theaccused in Chicoine—preyed on the elderly and vulnerable. [89] In Dayfallah v.

R., 2015 QCCA 829 , at paragraph 12, the Court referred to the study of authors Hugues Parent andJulie Desrosiers[29] regarding the range of sentences “for highly significant frauds” . […] They classify fraud for sums of $500,000 and more as “highly significant fraud” and note that 3 to 5 year sentences are thepredominate range.

They also observe peaks of up to 6 to 14 years of imprisonment, with a leaning towards 6 to 7 years for “the mostsevere cases.” They specify that these severe cases concern frauds of significant amounts, committed for personal ends, and taking placeover long periods of time, with a high degree of premeditation and committed in a context of a breach of trust, by individuals who may or

may not have a criminal record. [ 90 ] The accused in Dayfallah pled guilty in 15 different files, including 10 which related to frauds committed over a seven year period. With respect to the fraud-related files, the potential loss was pegged at $800,000 and the actual loss for the 10 victims was around $550,000. His modus operandi was always the same: he would take delivery of an important quantity of merchandise that he would pay with a phony check or with one drawn on an inexistent account. There was no restitution. He had an extensive criminal record, including several priors of fraud.

His last conviction resulted in a 90-day prison term accompanied by a probation for a period of two years. [ 91 ] Not unlike the accused in the present matter, the accused in Dayfallah was not deterred in his offending by the laying of criminal charges or court orders. In the following passage, the Court of Appeal quoted with approval the comments made by the trial judge, Lori Weitzman, regarding the character of the accused: Mr.

Dayfallah committed many of these offences while he was either on probation for fraud offences, subject to an undertaking for fraud offences, or the object of several warrants for his arrest. The spree of offences for which he has now pleaded guilty is indicative of a disconcerting lack of respect for any court orders whatsoever . A review of the timeline of these offences in enlightening. (…) This overview indicates clearly that Mr. Dayfallah was inured to arrest and Indifferent to, if not contemptuous of court orders.

His early guilty pleas in the 2009 and 2010 offences were nothing more than shams, allowing him to continue to operate as a true fraud artist. Despite a heartfelt testimony by Mr. Dayfallah, it is hard to imagine that he is now completely reformed , although it is certainly to be hoped that this can be the case [30] . [Emphasis in the decision of the Court of Appeal, at para. 14.] [ 92 ] While there may be similarities in both files, it should be noted that the accused in Dayfallah —unlike the accused in the present matter—pled guilty to all the charges.

Though the accused’s past record was a better indicator of his character, the trial judge remarked that he expressed a sincere willingness to change: Mr. Dayfallah has found some family support and has realistic plans for his future upon his release. He claims to have true remorse for his crimes and an understanding of the harm he has done. He describes a sincere willingness to change his behaviour. On this point, without wishing to minimize the importance of his testimony, nor to question the earnestness of his remarks, this recognition arrives after many years of a life dedicated to criminal activity.

It can also be noted that Mr. Dayfallah had previously registered guilty pleas, thus seeming to accept responsibility for the earlier crimes in 2011, and yet he continued to commit fraud at a remarkable pace despite these guilty pleas.

On this issue, the Quebec Court of Appeal in Chicoine cites Clayton Ruby who writes : The behaviour of the offender is usually a better indication of his character and attitude than what he or his counselor say about him [31] . [My emphasis in bold] [Underlining added in the decision of the Court of Appeal, para. 13] [ 93 ] The Court of Appeal also noted that the trial judge was alive to the sentencing range suggested in Chicoine in matters of significant fraud—six to ten years of imprisonment: [15] La juge de première instance connaissait la fourchette de 6 à 10 ans dont il est fait état dans l’arrêt Chicoine c.

R . Elle écrit: [52] (…) The range of “6 to 10 years for large-scale frauds” as suggested in Chicoine by the Quebec Court of Appeal are reserved for cases of “fraudes importantes.” An overview of the cases cited in the footnote of Chicoine at par. 76 .1 indicates that the Court was referring to cases involving multimillion dollar frauds.

[94] In upholding the trial judge’s sentence of four years of incarceration, the Court summed up the following aggravatingfactors: [18] La juge de première instance ne pouvait pas faire abstraction du fait que l’appelant a plaidé coupable à plus de 30 chefsd’accusation de fraude, bris de conditions, d’entrave, de fraude à l’identité et d’omission de se présenter à la Cour. Ces diversesinfractions ont été commises sur une période de cinq ans, de 2008 à 2013, au cours de laquelle l’appelant a fait l’objet de plusieursmandats d’arrestation.

Arrêté sur le fait, le 28 juillet 2011, l’appelant est remis en liberté en contrepartie d’un engagement à respectercertaines conditions, ce qui ne l’a pas empêché de commettre d’autres infractions jusqu’à son arrestation le 20 juin 2013, date aprèslaquelle il est demeuré détenu. [95] Parity in sentencing requires that I examine some of the decisions meted out to fraudsters who prey on the elderly andvulnerable members of the community. At the sentencing hearing, Crown counsel referred to a lengthy series of cases involving fraudsperpetrated on the elderly. [32].

I have read and considered all of them in crafting the present decision. An exhaustive review of the casesis not necessary and I will limit myself to reviewing only some of them. Across the board, all these decisions prioritize the sentencingobjectives of deterrence and denunciation even for first-time offenders. The sentences meted out range from three and one half years toten years. Not surprisingly, the harshest punishments are reserved for recidivist and incorrigible offenders who, by their deceitfulconduct, have wreaked havoc on the lives of their victims. [96] In R v.

Arnold (1995), BCCA 017011 an accused with no record of past offending was handed a sentence of three-and-one-half years for defrauding an 82-year-old woman of $200,000 in the course of home renovations (cited and summarized in R. v. Kralik,BCSC 1322 CanLII, para. 27). [97] In R. c. Ostiguy, 2015 QCCQ 6978 , the accused with one prior conviction for theft pled guilty to having defraudedan elderly couple of $320,000. Given the scope of the fraud and the toll it took on the victims, she was sentenced to 44 months in jail. [98] In R. c.

Satgé and Devries, 2016 QCCQ 4454 , the two accused were found guilty of defrauding an elderly andfragile man of close to one million dollars. The fraud was described as elaborate and was perpetrated over a period of five years. Despitethe absence of priors and a low risk of reoffending, the Court sentenced Devries and Satgé to prison terms of four years and three yearsrespectively. [99] In R. v. Sanmugam, 2012 ONSC 6663 , the accused defrauded several investors of over one million dollars byfalsely representing himself as a licensed and educated “market commentator”.

His victims included three seniors who were financiallyand emotionally devastated by the fraud. Though the accused had no criminal record and entered a guilty plea, he was handed a prisonterm of five years. [100] The case of R. c. Thouin, 2013 QCCQ 2146, provides an excellent example of an exemplary sentence meted out for anincorrigible fraudster. In that case, the accused pled guilty to having defrauded five elderly victims of $196, 000. For some of them, thesums defrauded represented the savings of a lifetime. Among the aggravating factors noted by the Court (

i) the accused had a criminalrecord, including several convictions for fraud; (ii) he reoffended while on probation for a previous fraud conviction. The Courtsentenced this “professional fraudster” to a term of ten years of imprisonment. —Weighing the aggravating and mitigating circumstances. [101] In fashioning a proper sentence, a court must take into consideration all the aggravating and mitigating circumstances. Inoutline form, here are the aggravating circumstances present in this case: • The magnitude of the fraud Over a period of several years, he defrauded his victims of over $900,000

• The complexity and degree of planning of the fraud He created fake documents to maintain the continued trust of his victims. Likewise, he resorted to impersonating individuals connected with the execution of the will in order to reassure the victims that the estate would soon be liquidated and that they would be reimbursed the money they lent the accused forthwith. • The duration of the fraud.

The fraudulent conduct took place over several years and involved deliberate, planned and covert behaviour • The callous nature of the fraud • The accused targeted elderly and vulnerable victims. • The impact on the victims The impact on the victims has been extensive and long reaching in every aspect of their life: financial, personal, emotional and physical health damages. Their ability to trust others has also been compromised. Given their age and their health issues, it is doubtful that they will ever be able to recover from the consequences of the fraud.

The Daniels, for instance, will never be able to pay off their mortgage. Mr. Rajcic, for his part, passed away before he could see that justice was done. In the last few years of his life, he had to deal with the shame and embarrassment of being conned by a very persistent and skilled conman. • The accused has a criminal record, including one of fraud. • The accused is an incorrigible and professional fraudster. For one thing, he has a record of similar offending. For another thing, he is undeterred by criminal proceedings against him. Despite being charged for frauds committed on the Daniels, Mr. Andrews and Mr.

Rabkin, he defrauded Mr. Rajcic over a five year period. Likewise, part of the fraud involving Mr. Rajcic was committed even though he was out on bail on conditions given to him by the highest court in the province. • The character of the accused The accused was relentless in the pursuit of his prey. Even when it appeared that his scheme might be collapsing, he had the audacity to extract more and more money from his victims. The accused pursued his victims even when it was apparent that they were falling into financial ruin.

He did not discontinue his fraudulent activities voluntarily, but he only stopped when his victims discovered the ruse. Otherwise he would have continued to bleed them dry. This shows that he is the kind of person who is prepared to con and swindle his victims without qualm or conscience if it furthered his interests and if he thought he could get away with it. As mentioned above, the accused was undeterred by criminal proceedings against him.

The pattern of reoffending despite pending charges sheds light upon his character and background in that it demonstrates a complete inability to understand the harm done by his actions and why it should not be repeated. [33]

Even without the benefit of a presentence report, I can safely say that the evidence paints a picture of a scheming and cunning person who is extremely free with the truth. Deceit and manipulation are part and parcel of the accused’s personality. As I’ve mentioned several times already, his testimony was nothing more than a pitiful effort to tailor an innocent explanation to the very damning evidence against him. In his fabricated reality, he even tried to pin the blame on a dead man, Mr. Burnash. If anything, the evidence indicated that Mr. Burnash was probably another victim of the accused’s inheritance scheme.

Incorrigible to the very end, the accused could not help but try to pull a fast one on the Court. One will recall that he wanted to be released on his own recognizance pending sentencing so that he could reimburse the victims through the sale of his prized autographed picture of Michael Jackson. The evidence in general, along with the accused’s conduct in the witness box, reflect a high propensity for deceit and manipulation. He is a well-entrenched confidence trickster. • The objective gravity of the offence. The objective gravity of the offence of fraud is very high.

For a fraud of over $5,000, the offender is liable to a maximum penalty of 14 years of incarceration ( s. 380 (1) of the Criminal Code ). It should be noted that in 2004 the legislature increased the maximum penalty for fraud over $5,000 from 10 to 14 years. The said increase reflects the seriousness of the crime and should be reflected in the sentences imposed by the court.

Also, the type of fraud committed by the accused falls in the category of codified aggravating circumstances ( ss. 380.1 and 718.2 (iii.1) of the Criminal Code ) [ 102 ] With respect to the mitigating circumstances, I agree with Crown counsel that there are none to speak of.

One factor that was conspicuously absent—the expression of remorse for his fraudulent actions and for the manner in which his greed devastated the lives of his victims. [ 103 ] The accused maintains his innocence contending that no offending occurred, consequently he cannot be given any discount for a guilty plea or for expressions of remorse. Despite the overwhelming evidence against him, it’s not an aggravating factor to challenge the Crown to prove its case. In doing so, however, the accused deprives himself of an important attenuating factor.

The appropriate sentence [ 104 ] The sinister and abhorrent conduct of the accused engages a high degree of moral blameworthiness. In the case of a sustained and deliberate fraud upon elderly and vulnerable victims, the appropriate sentence must send a clear message of denunciation and deterrence. [ 105 ] The accused should have been deterred from reoffending by the fact that he already faced similar charges of fraud in the past, but he wasn’t.

Likewise, the accused should have been on his best behaviour when the Court of Appeal granted him bail on his conviction for fraud; but he repeated the same pattern of deceit and manipulation. A proper sentence must also send a message of specific deterrence to the incorrigible, brazen and fearless fraudster who refuses to mend his ways regardless of his legal peril.

If only for the protection of society in general and the vulnerable victims in particular, a lengthy prison term is called for. [ 106 ] In many respects, the situation of the accused in the present matter recalls that of the accused in the case of Dayfallah, supra, whose criminal record and want of compliance with Court orders showed that he was not rehabilitated: [16] Ici, ce sont les lourds antécédents judiciaires de l’appelant, ses récidives constantes et son manque de respect évident pour les ordonnances des tribunaux qui ont amené la juge à conclure qu’il n’était pas complètement réhabilité et à lui imposer une peine sévère pour les chefs de fraude La jurisprudence et la doctrine avalisent un tel raisonnement.

Clayton Ruby explique que les tribunaux punissent

plus sévèrement les délinquants qui récidivent.

Il ajoute : « Where the criminal record discloses that the offender is a ‘professional’practicing a particular crime or is a ‘career criminal’, this will justify a severe sentence ». [107] Considering the relentless manner in which the accused defrauded the victims over many years, he may be qualified as a“professional fraudster.” For the incorrigible fraudster who preys on the weak without the slightest concern for the lives he has ruined,severe punishment is justified. [108] In a case such as this—where there is no mitigating factor to counterbalance the excess of aggravating circumstances, thecourts give preference to incarceration as the preferred means of protecting society and of general deterrence, and expressly rejectconsiderations of rehabilitation[34].

As explained by the Court of Appeal in R. c. Savard, (QC CA) : […] lorsque ces facteurs de qualification se polarisent vers un comportement délictuel frauduleux qui ne laisse émerger aucune mesured’atténuation, les tribunaux privilégient la mesure carcérale comme moyen de protection sociétale et de dissuasion générale en écartant,expressément, la réadaptation. [109] Considering all the aggravating circumstances in the present case, the global sentence of 90 months suggested by the Crownis not unreasonable.

After all, a sentence has to be proportionate to the gravity of the offence and the degree of responsibility of theoffender. Here, the moral turpitude of the accused is extremely high. Over a significant period of time—and on a regular basis—hecallously and cunningly defrauded his victims. He did so without the slightest qualms of conscience about destroying their lives.

To bequite frank, it is only the principle of restraint that precludes me from tacking more punishment to the accused for the despicable natureof the offences he committed. [110] For the sake of clarity, I add that the cumulative sentence of 90 months in this case does not offend the totality principle. Iam well aware that when an offender is ordered to serve multiple sentences, the totality principle requires that the judge ensure that thecumulative sentence does not exceed the offender’s overall culpability[35]. In this case, however, when I

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