R. v. Aminpour, 2019 BCPC 354

Citation: R. v. Aminpour 2019 BCPC 354 Date: 20191205 File No: 98811-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ASAR AMINPOUR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. DOREY Counsel for the Crown: C. Tait Counsel for the Accused: B. Durrant Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 15, 2019 Date of Sentence: December 5, 2019 [ 1 ] THE COURT: By way of background, on October 17, 2019, following a trial, I convicted Asar Aminpour of 15 counts of making false or misleading representations to the Canada Employment Insurance Commission (“the Commission”), in relation to an

ongoing claim for Employment Insurance benefits, contrary to s. 135(1)(

a) of the Employment Insurance Act . [ 2 ] Ms. Aminpour applied for Employment Insurance benefits on May 14, 2014, was approved and began collecting benefits. [ 3 ] Effective July 2, 2014, Ms. Aminpour started employment as an interior designer with HOK Inc. in Vancouver. [ 4 ] Over a period of seven months, between July 6, 2014 and January 1, 2015, Ms. Aminpour knowingly made 15 false declarations to the Commission in connection with her biweekly reporting obligations, stating that she was not working when, in fact, she was working, earning a gross salary of $58,000 per annum. [ 5 ] Ms.

Aminpour had an active Employment Insurance benefit claim file and was concurrently receiving weekly benefits of $515 or $1,028 for each reporting period. In total, she defrauded the Commission the sum of $15,420. [ 6 ] Ms. Aminpour is before me for sentencing on these charges. [ 7 ] Section 135(1)(

a) of the Employment Insurance Act makes it an offence, punishable on

summary conviction where a person in relation to a claim for benefits makes a representation that he or she knows to be false or misleading. This offence carries the following punishment: (

a) a fine of not less than $200 and not more than $5,000, plus in any other appropriate case, an amount of not more than double the amount of any benefits that may have been paid as a result of committing the offence; or (

b) both a fine and imprisonment for a term of not more than six months. [ 8 ] I am advised by the Crown that the maximum penalty that could be imposed on these offences is a fine of $5,000 per count or $75,000, plus up to double the amount of the benefits that had been paid or $30,840; or a fine and imprisonment for a term of not more than six months. [ 9 ] I now turn to Ms. Aminpour's circumstances. [ 10 ] Ms. Aminpour does not have a criminal record.

She has, however, been assessed three prior administrative penalties under the Employment Insurance Act for making false declarations in respect of her earnings in connection with a benefit claim. Crown counsel advises that Ms. Aminpour has reimbursed the Commission in full for the benefits that she unlawfully received and, thus, has satisfied her civil debt that was owing. [ 11 ] In terms of background, Ms. Aminpour is 45 years of age. She has been in a long-term relationship of over 10 years with her husband, Yaver Sarek. They have a seven-month-old son. Mr.

Sarek is a bartender by training and stays at home to care for their son. Mr. Sarek is well aware of the offences and continues to be a strong source of emotional support for Ms. Aminpour. He prepared a character reference letter on behalf of Ms. Aminpour which speaks to many of Ms. Aminpour's good qualities as a person, as a spouse, and as a parent. He explains in this letter that Ms. Aminpour was under a great deal of financial stress at the time of the offences and it is this stress that motivated her to commit these offences. He describes Ms.

Aminpour otherwise as a person of overall good character. [ 12 ] Ms. Aminpour is gainfully employed as an interior designer. She works with C. Bozek Architects and earns $65,000 per annum. She is the sole income earner in her family. She and her family reside in Port Moody. They own their own home but there is a mortgage of $300,000 and their home equity is approximately $300,000. She also has a $50,000 line of credit. [ 13 ] Ms. Aminpour prepared a letter of apology for the court in which she expresses her remorse and accepts full responsibility for her actions.

She explained she was under "a lot of financial stress by constant layoffs and growing debt to these layoffs and lack of knowledge and understanding of the process of reporting a full-time position, taking in account the probation period once starting a full- time position on EI." [ 14 ] Ms. Aminpour acknowledges that she has been a bad role model for her young son and expresses insight as to the harm her actions caused her family, her community, career, and future. In her letter, she vows never to engage in such behaviour again. [ 15 ] I accept Ms.

Aminpour's letter as a sincere expression of her remorse for these offences. [ 16 ] I now turn to the position of the parties. [ 17 ] The Crown proposes a sentence of a three-month conditional sentence order plus a fine totalling 100 percent of the benefits fraudulently received by Ms. Aminpour on each of the 15 counts. In other words, $1,028 per count, multiplied by 15 counts or $15,420.

It is the Crown's submission that, given the nature and gravity of these offences, this sentence accords with the primary sentencing objectives of denunciation and deterrence and would send a strong signal to the community that defrauding the Employment Insurance system, a system designed to provide a social safety net to those in need and without employment, will not be tolerated. [ 18 ] The defence, on the other hand, proposes a fine in the range of one-third of the amount of benefits received by Ms. Aminpour for each of the reporting periods or $350 per count or $5,250.

In addition, it is submitted that a term of 12-months probation would achieve the sentencing goals of denunciation and deterrence. [ 19 ] In her submission, defence counsel asserts that a conditional sentence order is unnecessary to achieve the sentencing principles and, moreover, the fine recommended by the Crown is at the high range of fines imposed in the jurisprudence. Finally, given that Ms.

Aminpour has repaid the Commission the amount of benefits she has received, this is important factor that should be taken into account by this court on sentencing. [ 20 ] Crown counsel further submits that a period of community work service is warranted and proposes community work service order in the range of 15 to 30 hours to further achieve these principles, including that of specific deterrence. [ 21 ] I now turn to the sentencing principles.

[22] The fundamental purpose of sentencing found in s. 718 of the Criminal Code 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. [23] This purpose is achieved by imposing just sanctions that are the result of a fair and balanced assessment of one or more of thesentencing objectives. [24] In my opinion, on the facts and circumstances before me, the primary sentencing objectives in this case are denouncingunlawful conduct and its harm to victims and specific and general deterrence.

A secondary objective is rehabilitation. [25] Denouncing unlawful conduct communicates society's condemnation of the offender's behaviour. It is a symbolic, collectivestatement that the offender's conduct encroaches on society's basic code of values and should be punished. I am citing for thatproposition the case of R. v. M.(C.A.) (1996), (SCC), 1 SCR 500. [26] Denunciation is designed to express society's abhorrence and absolute repudiation of certain crimes. [27] Denunciation is meant to target the public and not just the offender.

It attempts to persuade the public that the offendingbehaviour is abhorrent and reprehensible: R. v. Simms, [1990] A.J. No. 1050 (C.A.). [28] General deterrence is based on the belief that the sentence imposed will discourage members of our society, including otherpotential offenders, from engaging in like criminal behaviour through the stigma of a criminal record and penalties imposed asconsequences of that behaviour. [29] The theory of specific deterrence is to deter the offender from committing further crime by being reminded of the criminalconsequences of past offending. [30] In the case of R. v.

Cox, 2003 ABPC 9, Semenuk P.C.J. provides a helpful survey of the sentencing principles in the context ofoffences involving the defrauding of a public fund. At para. 9, Semenuk P.C.J. states: All of the sentencing authorities referred to by me, and cited above emphasize the principle of deterrence in relation to offences fordefrauding a public fund. In Hodgin (supra) Cain, P.C.J. at page 2, paragraphs 4 - 5, stated: “In structuring a sentence, the Court takes into consideration certain principals. The first is deterrence.

Sentences are imposed and it is hoped that when someone else who has a like intent to commit the same or another crime may bedeterred from doing so appreciating that he may be dealt with in the same or harsher manner. It is also hoped that the sentence will deterthe actual offender from violating the law again. In respect to these crimes, deterrence is a principle that the Court must give specialconsideration to since they relate to the defrauding of a public fund designed to assist the less fortunate who find themselvesunemployed.

This fund together with social assistance funds, workman’s compensation funds and the like make up the basis of theprotection available to protect the social fabric of this nation. The cost of providing assistance to the less fortunate has dramaticallyincreased and governments everywhere are seeking ways to reduce the impact on these funds mainly by reducing eligibility." [31] The case of R. v. Virk, 2002, O.J.

No. 4012, at paras. 7-8 and 51-54, discussed in the Cox decision, makes the distinctionbetween various public welfare offences for sentencing purposes, i.e., those that are strict liability offences, and those which requireknowledge, intent, in addition to the prohibited conduct, such as the offence under s. 135(1)(a). [32] At para. of the Virk decision, Madigan J.P., states: Not all public welfare offenses are equal in gravity. Some are more serious than others.

Those requiring proof of wrongful intention orknowledge are more serious, for sentencing purposes, precisely because the prosecution has proven a guilty mind in addition to theprohibited conduct. [33]

Section 718.1 to 718.2 of the Criminal Code provide a series of guiding principles to assist the judge in tailoring a fit and justsentence that will give meaningful effect to one or more of the sentencing objectives. [34] The fundamental purpose of sentencing captured in s. 718.1 is that a sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender.

The task of the sentencing judge is to weigh and balance these principles and objectivesagainst the nature and circumstances of the offence and the offender while having regard to the community at large in order to tailor asentence that is fit and just. [35] The manner in which a fit and just sentence is determined was reviewed by the Supreme Court of Canada in R. v. Nasogaluak,2010 SCC 6. At para. 43, Mr. Justice LeBel, writing for the Court, stated: ...

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case. ... No one sentencing objective trumps theothers and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars ofthe case. [36] The case of R. v.

Eng, [1994] O.J. 2857, at para. 15 (quoted in the Cox decision at para. 11), discusses a number of relevantfactors to be considered by the sentencing judge for offences similar to the case before me. These factors include: … Firstly, whether at the time of applying for the benefits the accused was entitled or not entitled to benefits. Secondly, the number offalse returns. Thirdly, the length of time over which the frauds continued. Fourthly, the amount of money received.

Fifthly, thecircumstances of the termination of the benefits, that is whether the accused ended the benefits on his own, because he was discovered

or because the entitlement ended. Sixth, the sophistication and planning involved. … Seven, restitution. Eight, the accused’s financial circumstances, contrasting a single parent who cannot meet their family’s financial needs, as opposed to an accused who has property. Ninth, the accused’s record. Ten, the accused’s personal circumstances. Eleven, any exceptional circumstances, such as physical or emotional or psychological disability or disfunction.

Twelve, plea of guilty or other signs of remorse and cooperation. [ 37 ] In Cox , Semenuk P.C.J. stated that the range of sentences vary significantly but noted that fines and imprisonment, including probation, restitution orders are commonplace. [ 38 ] I now turn to a review of the case law that have been put before me. [ 39 ] The first is R. v. Cox , supra . In that case, the accused pled guilty to three charges contained in two Informations. One of the Informations involved the charge under s. 135(1)(

a) of the Employment Insurance Act . It was agreed that the accused unlawfully received Employment Insurance benefits totalling $5,788. The accused was married, had a family and was the sole income earner and employed as a courier driver. He had a gambling addiction which was the motivation behind the charges. He also had a criminal record involving property offences and offences under the Excise Tax Act where substantial fines had been previously imposed.

The accused used two different identities to falsely obtain Employment Insurance benefits. [ 40 ] He received a global term of imprisonment of 30 days, served intermittently, a 100 percent fine totalling $5,788, and a standalone restitution order for benefits, followed by two years of probation, which included a condition for 30 hours of community work service. [ 41 ] I note that the sentence is technically an illegal sentence by the tacking on of the two-year probation period but, nonetheless, it does provide some guidance as to an appropriate sentencing range. [ 42 ] The Court in that case found Mr.

Cox was motivated by greed, using two separate identities, and having paid no restitution at sentencing. [ 43 ] The next case is that of R. v. Hanson , an unreported 2018 decision of the Provincial Court of Saskatchewan. The accused was charged with 10 counts of making a false claim for employment insurance benefits over a five-month period. He had three prior administrative penalties for false claims, which were dated. He received $10,480 in benefits while concurrently earning a salary of $33,000. [ 44 ] In that case, Mr.

Hanson received a fine of $500 for each of the 10 counts, which equates to a 50 percent fine per count. In addition, he was ordered to pay restitution under s. 135(3) of the Employment Insurance Act in the sum of $10,480. And then finally, a conditional sentence of 60 days was imposed. [ 45 ] The final case relied on by the Crown is the case of R. v. Bradley , a 2012 decision of this Court (reported at 2012 BCPC 290 ). In Bradley , the accused pled guilty under s. 135 of the Employment Insurance Act for making 10 separate false declarations.

He received a total of $3,358 in benefits, all of which had been repaid by the time sentencing had occurred. Mr. Bradley had three prior administrative penalties. [ 46 ] The Crown proposed a conditional sentence of four months which was accepted by the Court, in addition to a fine of $500 per count. [ 47 ] At paragraph 21 of that decision, Dyer, P.C.J. held: In my view, this is also a case where a period of incarceration would be appropriate.

I need to send the clearest and strongest possible message that I can send as a judge of this court to members of the public who might do this kind of thing and be guilty of this sort of misconduct, that it cannot and will not be tolerated, that there are consequences involved in doing this. The Employment Insurance scheme is basically funded by working Canadian taxpayers, and is a fund that is created, if you will, to assist people who for valid reasons are not able to work at gainful employment.

It is a form of "security blanket" that arguably is available to help the less fortunate among us who for one reason or another are not able to work at gainful employment that produces income for them to bring into their households. If the people like Mr. Bradley are permitted to do what they do without the strongest sanction being brought to bear when they are found out, it attacks the whole purpose of the scheme, and is in my view to be seen in a serious light. [ 48 ] I now turn to a consideration of the aggravating and mitigating factors. [ 49 ]

Section 718.2 of the Criminal Code provides that a sentence should be increased or decreased to account for any mitigating and aggravating factors that relate to the offence or offender. [ 50 ] In this case, the mitigating factors are Ms. Aminpour's lack of prior criminal record, her strong family support, and the fact that she has made restitution to the Employment Insurance Commission. I will also consider the fact that Ms. Aminpour is the sole source of income for her family at present. [ 51 ] The aggravating factors centre on the frequency and pattern of Ms. Aminpour's offending.

She took advantage of our Canadian social safety net. Her offending, in my opinion, was calculated, opportunistic and deliberate and involved a significant sum and occurred over a significant period of time. In my opinion, Ms. Aminpour's moral blameworthiness is high. And I will refer here to two passages from the Hanson decision at paras. 16 and 17: The system of unemployment insurance is a long-held social program of the Government of Canada whereby employers and employees pay into the program on a routine basis as a form of insurance against future unemployment.

It is designed to cushion the loss of a job in the event that one loses employment and has no other savings to rely upon. It relies for its success on people honestly and regularly reporting their true employment situation when applying and upon receiving this financial assistance. It is a continuing obligation once you begin to accept the assistance to honestly report, which is why the declarations are required every two weeks. Many people will

contribute to the program in the form of payroll taxes for their entire working life and never have to draw upon it, but to actually falsely apply and draw upon it when you are continuously employed strikes at the very heart of the program and cannot be condoned or encouraged by this court. At paragraph 17 the court states: Mr. Hanson has taken resources which were not his to take and has directly impacted upon other recipients of the program who may have needed more money or for longer periods of time than they were allowed because of the funding shortfalls in the program.

To date, he has not repaid the money owing to Service Canada although he has apparently been garnisheed. [ 52 ] That is not quite the circumstances of Ms. Aminpour but the principles are certainly there, that the employment insurance system is a system designed to cushion the loss of a job for Canadians who fall on difficult times and who have no other safety net. It is clearly a system that is based on trust.

Many Canadians in difficult financial circumstances, including single income earners, do not resort to dishonesty by defrauding the system and, accordingly, I do echo and adopt the comments by the court in the Hanson case, particularly those found at para. 16. [ 53 ] I now, at this stage, provide my sentencing decision. Ms. Aminpour, if you could please stand. [ 54 ] The Employment Insurance fund is a social safety net of critical importance in Canadian society for employees who lose their job and are without employment income.

It is principally funded by individual and corporate Canadian taxpayers through their employment source deductions. [ 55 ] Your offences were deliberate and opportunistic crimes of dishonesty which took advantage of the Employment Insurance social safety net.

Sadly, the ultimate victims of these crimes are Canadian taxpayers. [ 56 ] I have determined, after taking into account all of the circumstances, including the fact that you have shown remorse to the court through your letter, through your strong family support, that you made restitution, and that you have avowed not to engage in such behaviour again, the sentencing principles of general and specific deterrence, and denunciation, and having considered the principles stated in the cases, that a fit and just sentence for you is a three-month conditional sentence.

It is a sentence of imprisonment but you will be allowed to serve your sentence in the community. I am satisfied that you do meet all the criteria in order to serve a conditional sentence. [ 57 ] In addition, I am of the opinion that a fine is also warranted.

A fine totalling 100 percent of the benefits that you had unlawfully received on each of the 15 counts, totalling $15,420, is fit, just and appropriate in the circumstances, and I so order. [ 58 ] There are a number of conditions that will attach to your conditional sentence order and they will be as follows: [ 59 ] You must keep the peace and be of good behaviour. [ 60 ] You must appear before the Court when required to do so by the Court. [ 61 ] You must notify the Court or your conditional sentence supervisor, in advance, of any change of name or address and promptly notify the court or your conditional sentence supervisor of any change of employment or occupation. [ 62 ] You must remain in British Columbia unless you have prior written permission of the Court or your conditional sentence supervisor to leave the province and you must carry the written permission when you are outside of the province. [ 63 ] You must report in person to your conditional sentence supervisor at 2610 Mary Hill Road by 4:00 p.m. today and thereafter you must report as directed by your conditional sentence supervisor. [ 64 ] When first reporting to your conditional sentence supervisor you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without the written permission from your conditional sentence supervisor. [ 65 ] For the duration of this order you must remain inside your residence under house arrest under a curfew between the hours of 8:00 p.m. and 6:00 a.m. every day of the week.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or your conditional sentence supervisor attends at your residence or calls to check on your compliance with the house arrest, curfew condition of this order. [ 66 ] You may be away from your residence during your house arrest curfew hours with the written permission of your conditional sentence supervisor.

Such permission is to be given only for compelling reasons and you must carry the written permission when you are outside your residence during the house arrest or curfew hours. [ 67 ] You may also be away from your residence during house arrest and curfew hours: (

a) while in the course of your employment or when travelling directly to or returning directly from your place of employment. If requested, you must provide your conditional sentence supervisor with details of your employment including location and hours of work; (

b) in the event of a medical emergency and then only while at a healthcare facility or while travelling directly to or returning directly from that facility. A Medical emergency will be extended to include a medical emergency involving yourself, your son or your husband. If requested, you must provide your conditional sentence supervisor with the written confirmation that you went to that facility, signed by a representative of the healthcare facility to which you went; and (

c) And finally, you may be away from your residence in the presence of a person approved, in writing, by your conditional sentence supervisor, and you must carry the written permission with you when you are away from your residence during the curfew hours. [ 68 ] By tacking on sub-condition (

a) which allows you to be away from your home during curfew hours, that should allow you to be

able to stay later at work in the event you have a project deadline. [ 69 ] Additionally, you must not possess or consume any alcohol, drugs or any intoxicating substance except in accordance with a medical prescription and you must not go to or enter any liquor store or beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business in which minors are prohibited at any time by the terms of a liquor licence. [ 70 ] I am not going to impose a counselling condition.

I do not see that that is warranted and the conditional sentence terms, as I have drafted, I believe are sufficient. [ 71 ] I am going to dispense with the request sought by the Crown for a period of community work service given that Ms. Aminpour has a young child that she is responsible for caring for outside of work hours. [ 72 ] Those are the conditions. This is a jail sentence so these restrictions are necessary in order that you be able to serve your sentence in the community.

There will be some paperwork that will be reviewed with you at the registry before you can leave court today. [ 73 ] THE CLERK: Sorry, Your Honour, I just need to clarify for the fine, for each count how much is that amount? [ 74 ] MR. TAIT: $1,028. [ 75 ] THE COURT: $1,028. [ 76 ] MR. TAIT: And I just rose with respect to the fine and time to pay. [ 77 ] THE COURT: Yes. [ 78 ] MR. TAIT: I will leave it to my friend but I would ask for an escalation clause, meaning if X amount of time is given that if, by halfway, 50 percent has not been paid it is all due then. [ 79 ] THE COURT: All right. I will turn to Ms.

Durrant. How much time is going to be needed to pay? [ 80 ] MS. DURRANT: I'd ask for 24 months. [ 81 ] THE COURT: All right. I am going to grant the request of defence for a 24-month period to pay the fine. The fine can be -- Mr. Tait, is the fine to be paid to the Receiver General? (DISCUSSION WITH COUNSEL) [ 82 ] THE COURT: All right. Very well then. So I am going to grant defence counsel's request for 24 months to pay. I am not going to impose an acceleration provision within the payment.

The fine may be paid through the Clerk of the Court, payable to the Receiver General of Canada and you will have 24 months from today to pay that fine. I would encourage you, Ms. Aminpour, to make your payments regularly in any sum as you can in order to reduce this outstanding fine because it may become quite difficult if you leave it to the very end but certainly you can speak to your counsel for some advice, if need be, with regard to that. (REASONS FOR SENTENCE CONCLUDED)