r v. JONATHAN ADAMSON, 2023 QCCQ 3622

R. c. Adamson 2023 QCCQ 3622 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL "Criminal and Penal Division" No: 500-01-204920-208 DATE: May 31, 2023 ______________________________________________________________________ PRESIDING THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

JONATHAN ADAMSON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleaded guilty of having stolen a sum of money of a value exceeding $5,000. [ 2 ] As for the sentence, the Crown seeks a conditional sentence of imprisonment of nine months. On his side, the accused asks for a conditional discharge. The Court must determine the appropriate sentence for the accused. CIRCUMSTANCES OF THE OFFENSE [ 3 ] The accused was part of an elaborated international fraud scheme.

The victim is the owner of a company which sells farm machinery locally and internationally. The victim received an email from Algeria and he went to Africa to bid on different projects. [ 4 ] At one point, he had to make a money deposit to give some guarantee and to assure some kind of clearance. This is when the victim met the accused at the Montréal Airport on January 10, 2020, and he gave him $16,000 in cash. This money was supposed to be used as a deposit for this clearance, but instead, the accused left with the money.

This amount was shared with other accomplices, one in Toronto and another one in Africa. [ 5 ] The accused pleaded guilty at the opening of the preliminary inquiry. IMPACTS ON THE VICTIM [ 6 ] The major impact for the victim is economic loss. The victim lost the amount of $16,000 and he also claims money for his travel and hotel expenses to meet with the police and for his attendance in court. THE ACCUSED’S PROFILE [ 7 ] The accused submitted himself to a presentence report and he testified in court. The accused is now 50 years old and the father of two children.

He was born in Sierra Leone, but shortly after, his family moved to Nigeria. [ 8 ] When he was seven or eight years old, he lost all his family in an accident. As an orphan, he was taken in charged by a pastor for a few years before integrating his adoptive family at the age of ten. [ 9 ] The accused reports a bittersweet childhood in his foster family. He lacked nothing, but he received a strict education where physical corrections were common.

This leads the writer of the presentence report to say that: “This particular family dynamic could be the cause of some shortcomings in the development of the subject’s personality, including a weakened self-esteem and an important need for recognition.” [1] [ 10 ] The accused left Nigeria around the age of 23 to settle in Holland and around the age of 28, he came to Canada as an asylum seeker.

He obtained his Canadian citizenship in 2015. [ 11 ] Since living in Canada, he has always worked and he started a hair salon in 2001 with his wife and since 2020, he has been working as a courier for a subcontractor of Fedex. [ 12 ] He testified that he actually works around 60 hours a week and explained that his company is aware of his judicial problems. This is why he still has the statute of probation, because they are waiting for the outcome of his case. Should he have a criminal record, he would lose his job.

[ 13 ] Regarding his implication in this scheme, the writer of the presentence report says the following: “In retrospect, the accused explained that, at the time of the alleged offences, his financial situation was difficult, particularly because he had committed to pay the full cost of his youngest daughter’s university education. He also mentioned that he had undertaken an expensive alternative treatment to counter the adverse side effects of his type 1 diabetes. (…) It will therefore be in this context of accumulating debt and depressive elements that Mr.

Adamson would have asked an acquaintance living in London to lend him $10,000 so that he could purchase a used delivery vehicle. (…) It is in that context that his friend would have offered him to engage in the present offenses in return for a third of the sum he would manage to steal from the victim. The subject says that he retained $6,000 of the $16,000 stolen from the victim. In post-offense reaction, the defendant acknowledged all of the facts alleged against him in the current case. He is aware of the objective gravity of his deviant action and of its reprehensible character.

He regrets his actions and is aware of the financial and emotional consequences suffered by the victim. In retrospect, Mr. Adamson argues that it had never been in his plans to enrich himself at the expense of others and admits that this was not an appropriate way to manage a problematic financial situation in which he found himself.

He explains that he gave in to the temptation to get money easily, without thinking about the consequences of his actions, because he was then blinded by the desire to find a solution to his financial problems.” [2] [ 14 ] Also, before the hearing on sentencing, the accused refunded the amount of $15,320 and is willing to pay the balance of the $16,000 within a few months. ANALYSIS [ 15 ]

Section 718 of the Criminal Code states that: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions […] [ 16 ] To achieve this goal, the Court should stress on the different objectives mentioned at

section 718 Cr.C . and take into consideration the fundamental principle of proportionality which means that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” [3] . [ 17 ] The Court should also consider that he is sentencing an individual and not a crime. Also, considering the fact that the accused is a first offender, the Court should apply the principle of moderation in the imposition of imprisonment stated by

section 718.2 (

d) Cr.C ., as it was reminded by the Court of Appeal in the case of Bachou [4] , which provides that “ an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. [ 18 ] In the present matter, the Crown’s proposition stresses on the objective of deterrence and denunciation.

To the contrary, the accused pleads that the judicial process was deterrent for him and he asks the Court to consider his social rehabilitation to give him the opportunity to keep his job and become an asset to the society. [ 19 ] In the matter of crime of fraud and theft, our Court of Appeal in Lévesque [5] suggests a list of criteria to help the Court to establish the level of responsibility of an accused for an infraction.

This also establishes the aggravating and mitigating factors linked to the infraction and the situation of the offender. − The nature and extent of the fraud : in this matter, it was a well-elaborated fraud, but the role of the accused was limited and there is no evidence that he is the mastermind of this scheme. − The degree of premeditation : the accused was aware that he was stealing money from someone and in this matter, the infraction was premeditated, but as I mentioned before, his involvement was limited to one step of the scheme. − The offender’s behavior after recognition of the infraction : The accused pleaded guilty to the infraction and even though he received one third or $6,000 from the crime, he managed to refund the total amount stolen from the victim. − Previous convictions : the accused had no criminal record before. − Personal benefits withdrawn by the accused : as mentioned before, the accused has received $6,000 from the infraction, but refunded $15,320 at the time and he is willing to refund the complete amount of $16,000 at the outcome of this bad experience; the accused ended up with no personal benefit at all. − The character of authority and the relationship of trust : the accused and the victim didn’t know each other before and the victim was not in relation with the accused for all the steps of the scheme and before the money was stolen at the Montréal Airport.

So there was no relationship of trust between the accused and the victim. − The motivation underlying the commission of the offense : as mentioned by the writer of the presentence report, the motivation of the accused was to find a solution for his financial problems. Shortly after, he regrets and the presentence report expresses clearly that this “acquisitive acting-out seems to reflect situational type opportunity crime” [6] .

The writer of the presentence report is convinced that the current judiciarization combined with the fear of a custodial sentence will have a significant deterrent effect on his future conduct.

For the writer, the risk of reoffending seems to be low in the short term. [ 20 ] The last criterion regarding appropriation of public funds does not apply in the present case. [ 21 ] After balancing all those factors, the Court considers that the limited implication of the accused in the crime reveals that his responsibility is also limited to one specific action and that he was used by the mastermind who elaborated this scheme.

[ 22 ] What will be the proportionate and appropriate sentence in this matter? [ 23 ] The accused asks for a conditional discharge.

Section 730 Cr.C . sets out four conditions to grant the discharge.

The first two are met easily because there is no minimum punishment prescribed by the law and the offense is not punishable by imprisonment for 14 years or for life. [ 24 ] As for the two other criteria, did the accused make the demonstration that a discharge is in his best interest and not contrary to the public interest? [ 25 ] Regarding his best interest, the accused is 50 years old, has two children, was always working while in Canada and for the past three years, he has been working in an enterprise where he cannot have any criminal record. [ 26 ] The Court is convinced that the accused shows that a discharge is in his best interest because he is involved and wants to stay in this field for the rest of his working life. [ 27 ] So if the Court grants the accused with a conditional discharge, will it be contrary to the public interest? [ 28 ] The Crown stresses on this point to show that granting a discharge in the present matter will not permit to reach the denunciation and the general deterrence objectives. [ 29 ] The jurisprudence of the last years and from our Court of Appeal establishes that for this notion of public interest, we should refer to the reasonable and well-informed person.

In St-Cloud [7] from the Supreme Court of Canada, the Court mentions that this perspective of the public is the perspective “of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of the Canadian Charter of Rights and Freedoms , and the actual circumstances of the case.

However, this person is not a legal expert and is not able to appreciate the subtilities of the various defenses that are available to the accused.” [8] [ 30 ] When you transfer this notion to our case, that means that the person, who is well informed of the accused’s situation, his reaction after the infraction and the fact that a discharge will permit him to remain an asset in the society, will find that granting the accused of a discharge is not contrary to the public interest. [ 31 ] After balancing all the principles and the factors in this case, the Court agrees to the proposition of the accused, and it will grant him a conditional discharge.

FOR THESE REASONS, THE COURT: [ 32 ] ORDER that the accused be discharge conditionally and he will be placed on probation for a period of 12 months on the compulsory conditions and the specific following conditions: − not to communicate in any way with Mr.

Daniel Gauthier; − report to a probation officer within two working days and thereafter, whenever required by the probation officer and in the manner directed by him for the terms and conditions of the community services and undergo any treatment recommended by him; − perform 100 hours of community services within a period of 12 months; − refund the amount of $700 to the clerk of the court to the profit of Mr. Daniel Gauthier within 10 months. [ 33 ] Without victim surcharge. __________________________________ ÉRICK VANCHESTEIN, J.C.Q.

M e Isabelle Major For the prosecutor M e Carl Devost For the accused Date of hearing: April 24, 2023