R. v. Stuart Date:, 2012 BCPC 327

Citation: R. v. Stuart Date: 20120606 2012 BCPC 0327 File No: 56018-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN STUART EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J.R. Bird Counsel for the Defendant: M. Smith Place of Hearing: North Vancouver , B.C. Date of Judgment: June 6, 2012

[ 1 ] THE COURT: Sean Stuart pled guilty on April 12th of this year to by deceit, falsehood or other fraudulent means defrauding Scott Anderson and 25 others of money in excess of $5,000. The offences arose between October 1st, 2008 and the 28th of February 2010. [ 2 ] The Crown has provided very helpful written submissions and I will simply read from the

summary of facts in their submission. From December 2008 to December 2009 Sean Stuart used internet market places such as Craigslist and Kijiji to solicit buyers for tickets to various events of the 2010 Winter Olympics. Stuart offered tickets to Olympic events including the Gold Medal men's hockey final, figure skating and the opening ceremonies. [ 3 ] Olympic tickets first went on sale one year before the Games began. The series of frauds alleged by the Crown spanned that entire one-year period.

The Vancouver Olympic Committee, VANOC, originally sold tickets in a lottery system and the demand for tickets was many times greater than the supply. [ 4 ] That was the case, even though the tickets were expensive. The typical package of tickets sold in the lottery was two tickets to four different events. Those eight tickets would sell for $750 to $1200, depending on which events were included. The high demand resulted in the secondary market with some tickets resold by VANOC and others sold privately over the internet. The resale value was often much greater than the face value.

One pair of men's hockey tickets that included Canada, even in the first round, would sell for $1500 to $2,000. [ 5 ] Mr. Stuart never had any tickets. There were 26 victims and the total amount of money lost was $60,757.14 Canadian and $2,175 U.S. In furtherance of this scheme, Mr. Stuart contacted various individuals who were legitimately selling Olympic tickets on the internet. He would ask them to send proof of ownership of the tickets. In response, he received various documents by email.

He would then change the name of the owner to himself and forward those documents to his victims. [ 6 ] In most of the fraudulent transactions the police have traced the money sent by the victims to a bank account controlled solely by Mr. Stuart in West Vancouver. Most of the dealings between Mr. Stuart and his 26 victims were by email. They were very specific and got into the location of the seats in the various venues, the various combinations of tickets he supposedly had and there was haggling over price. [ 7 ] Mr.

Stuart stalled some of his victims for almost the entire year with excuses as to why he had not yet sent the tickets. Finally, in the days before the Games began, he sent an email to most of his victims, telling them they would not be receiving their tickets because he himself had not received them. He had originally told most of the people that he had possession of the tickets or that he was going to get them directly from VANOC. [ 8 ] So those are the circumstances of the offence. I would just note here that one victim, the most aggrieved, lost $16,000.

There is another victim who lost $4800, a few in the three to $4,000 range and the rest below that amount. [ 9 ] There have been victim impact statements filed in this matter and not surprisingly they speak to feeling helpless and saddened and very disappointed. As the Crown has pointed out, Mr. Stuart's activities besmirched not only the Olympics but also Vancouver and Canada as a whole in the eyes of the victims. [ 10 ] Mr. Stuart's circumstances are that he is 32 years of age. He was born in Kelowna but grew up in the United States. He did not have a stable upbringing.

He was in foster care at ten years of age. He said his parents were not very responsible or dependable and grew marihuana to support their family. He has had no contact with his father for ten years, so since his early twenties, and does not know where his father is and says his mother is remarried and living in Bermuda. He says he does have some contact with her. [ 11 ] Mr. Stuart was married for ten years. As a result of this offence, he and his wife separated and she now lives in Nanaimo with the children. Mr.

Stuart is attempting to deal with getting an access or custody order with respect to his children. [ 12 ] He has a criminal history which is dated and very limited and unrelated. It is one count of possession of a controlled substance from 2000 in Duncan, and received a $2500 fine. [ 13 ] He has a Grade 10 education. He has worked for most of his adult life in construction and drywall work and, in fact, owned his own company for ten to 15 years. [ 14 ] He is now involved in a relationship, relatively new, with Avinder Sidhu [phonetic]. They have been together for seven months.

They met when they were both involved in the Occupy Vancouver movement, I suppose I could call it. She speaks to his kindness and the fact that he is a good partner and is a very giving and caring person and she continues to support him. [ 15 ] Mr. Stuart does not have any addictions or any substance abuse issues. He has had some mental health issues in that he has had some suicidal ideation and is now taking anti-depressants which were prescribed for him at the hospital. [ 16 ] He is remorseful, and the Crown does not take any issue with respect to his remorse being sincere.

He has taken responsibility for this matter. He entered a guilty plea and in the circumstances, with the victims spread all over North America, that guilty plea is of particular significance. [ 17 ] The charge was laid in December of 2010, however he was processed and got to the courts and pled guilty in what I will describe as a reasonable period of time, and I think it is fair, as both counsel do, that that be considered a significant mitigating factor on sentence. [ 18 ] Mr. Stuart's explanation for committing this offence is that he had lost a large contract.

He felt that he had been wronged in that and was acting out against other people by taking

part in this offence.

[ 19 ] As I have started at the beginning of these reasons, or mentioned at the beginning of these reasons, this is effectively a joint submission. The Crown is suggesting that a one-year conditional sentence is appropriate in all the circumstances. There does not appear to be a need for probation. Mr. Stuart has been on bail. There have been restrictive terms on his bail. He has been compliant throughout. He is prepared to attempt to make restitution, although his means are limited.

He is nevertheless going to make $150 a month payments while serving his conditional sentence and, of course, there will be stand-alone restitution orders to each victim. He is prepared to do community work service and attend counselling to deal with his emotional issues. [ 20 ] It is also significant that as a result of the outstanding warrant in Canada his immigration status in the United States came into question.

He was taken into custody and held for ten weeks in various institutions in the United States before making his way back to Canada. [ 21 ] Crown counsel has provided a number of authorities to the court. They certainly make clear that the position of the parties is a reasonable one and supported by the case law. Similar sentences have been imposed for similar offenders and in similar circumstances. [ 22 ] For the record, the Crown has argued R. v. Bower (2001), Carswell BC 2645 (B.C. Prov. Ct.) ; R. v. Farkas (2006), Carswell Ont 2226 (O.C.J.) ; R. v. Kohut

(1999) Docket CC981226 (B.C.S.C.); R. v. Lukian [2004] AWLD 133 (Alta. Q.B.) ; R. v. McNaughton (2001), New Westminster No. X054912 (B.C.S.C.); R. v.

Pechterski (2007), 75 WCB (2d) 454 (O.C.J.) and (2008), Carswell Ont 3872, (O.C.A.) . [ 23 ] The Crown asks the court to take into account the various aggravating circumstances which I have already alluded to: that the crime tarnished the ideals of the Olympics; that it had a substantial impact upon the victims, and in particular the Crown talks about the disappointment that the victims felt after having looked forward to attending these events in Vancouver and making plans to travel and finding out at the last minute that, in fact, their whole trip or the tickets they expected were a fraud; that it was a calculated scheme carried out over the course of a year; that the victims were throughout North America; and that Mr.

Stuart used the internet to carry out his crime; and that there was certainly some amount of deliberation and planning. [ 24 ] The Crown points out that the victims were not elderly or vulnerable and that Mr. Stuart was not in a position of trust and that the transactions were all at arm's length. [ 25 ] I do again thank Mr. Bird for his very comprehensive and helpful submissions, as well as the submissions of Mr. Smith on behalf of Mr.

Stuart. [ 26 ] So in all the circumstances I will accede to the joint submission and impose a conditional sentence order for a period of 12 months. [ 27 ] The terms will be that you will keep the peace and be of good behaviour. You will appear before the court when required to do so by the court. You will notify the court or your supervisor of any change in your name, address or occupation. You will report in person by no later than 4:00 p.m.

June 7th, 2012 to the conditional sentence supervisor at 100 - 233 West 1st Street in North Vancouver, British Columbia and report thereafter as and where directed by your conditional sentence supervisor. [ 28 ] You will reside as directed by your supervisor and not change that address without the prior written permission of your supervisor. [ 29 ] You will be bound by a curfew of 9:00 p.m. to 6:00 a.m. seven days a week.

You may be outside of your residence during your curfew to attend to any medical emergencies for yourself or any member of your immediate family or with the prior written permission of your supervisor for the purpose of attending directly to any employment, working and returning home thereafter, performing your community work service hours or attending any programming or counselling as may be directed by your supervisor. [ 30 ] You will perform 100 hours of community work service under the direction of and to the satisfaction of your supervisor or of their delegate and complete same within the first nine months of your period of conditional sentence. [ 31 ] You will make restitution to the clerk of the court for the benefit of all the victims attached as

Schedule A to this conditional sentence in the amount of $150 per month. Those monies will be distributed to the victims in 26 equal parts at the end of the period of conditional sentence. I did the calculation and that actually works out to about $70 per victim.

I am not sure if they will be happy with that or not, but that is just an aside. [ 32 ] You will seek and maintain employment as directed by your conditional sentence supervisor. [ 33 ] You will provide for the support of your dependents. [ 34 ] You will participate in and complete any educational or vocational counselling or programming as is directed by your probation officer. [ 35 ] You will attend for, accept and complete any counselling and/or treatment as may be directed by your probation officer.

You will attend to the Forensic Psychiatric Outpatient Clinic or any community care team for any treatment or counselling as is directed by your supervisor. [ 36 ] I think I have covered everything except the stand-alone restitution. Okay. So there will be a s. 738 order and I am not going to read all of this onto the record but I will, Madam Clerk, file the document that the Crown has provided in this regard which sets out each of the victims and the amount owed.

There will be a s. 738 order with respect to all of that. [DISCUSSION] [ 37 ] So you are not to possess more than one personal computer and you must not access more than one email account and you must

provide that email account to your supervisor. (REASONS FOR SENTENCE CONCLUDED)