R. c. Edugie				2019 QCCQ 6125
COURT OF QUEBEC
Criminal & Penal Division
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
N° :		500-01-174793-189
DATE :	October 4th 2019
______________________________________________________________________
BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q.
______________________________________________________________________
HER MAJESTY THE QUEEN
Prosecution
v.
NOSA EDUGIE
Accused
______________________________________________________________________
REASONS FOR SENTENCE
______________________________________________________________________

“Identity theft offences are very serious. They are becoming far too prevalent in our society, particularly given the technological era we now live in. They are difficult to detect, investigate and prosecute, particularly when the victims are from other countries, … Parliament has recently increased the maximum sentence for fraud and has indicated it will be introducing legislation to deal with these types of offences more effectively.

Identity theft offences have serious and lasting repercussions, both financially and emotionally, on completely innocent victims… Besides the financial losses often associated with identity theft, the victims must also spend significant amounts of time and money taking steps to prevent further violations of their identities, and there always remains the concern of when the next violation will occur”.

-Dohm J.[1]

[1]           These excerpts are quoted for the bleak but accurate foreknowledge therein. They were written in 2007, some 12 years ago, when the Court already warned of the increasing prevalence of identity theft in our society and cautioned that technological advances might exacerbate the problem.

[2]           In those subsequent 12 years, the problem did not subside. Instead, society has seen an explosive proliferation of identity theft beyond anything that could have been predicted. It is a scourge that is so widespread that citizens have developed a sense of resignation, surrendering to the inevitability that it will happen to them at some point in time, if not repeatedly.

[3]           In fact, to gauge the pervasiveness of the crime in modern-day Canada, one does not need to look far. No statistical or empirical data is needed. Instead, the average person may simply ask: “have I myself - or someone I know - ever been a victim of a stolen or misused debit/credit card number?”. The answer will invariably be yes. What other crime can boast such a devastating track record?

[4]           On June 11^th 2019, Nosa Edugie pled guilty to identity theft (s. 402.2(1) C.C.) by possessing other people’s personal information with intent to use it to commit a fraud-like indictable offence. He also pled guilty to forgery (s. 366(1)(a) - 367(a) C.C.) for having made false documents with intent that they be used as genuine. Both counts were charged by indictment.

[5]           The incidents date back from September of 2016 to February of 2017.

[6]           The date of his guilty plea was originally scheduled to be the start of a 3-day trial. Luckily, one month earlier, the parties had taken measures to warn the Trial Coordinator’s Office of the plea in advance, thereby allowing the trial dates to be vacated and leaving precious court time on the docket for other files.

[7]           Both parties requested a pre-sentence report and the sentence hearing was eventually held on September 3^rd 2019.

[8]           The main issue in the case at bar is whether or not the accused should be allowed to serve his sentence of imprisonment in the community.

FACTUAL OVERVIEW

1- The circumstances of the offences

[9]           After detailed cautions and verifications pursuant to s. 606 C.C., the accused entered his guilty pleas.

[10]        The parties filed a written agreed statement of facts,[2] which was signed by both attorneys and by the accused himself. Out of an abundance of caution, I asked the accused in open court to confirm that he had read the ASF. He indicated that he had and he explicitly acknowledged that its contents were true.

[11]        Given the accused’s subsequent comments to the probation officer, it is useful to review the ASF in its entirety:

1.    The charges in this file are the result of an extensive investigation conducted by the Organized Financial Crimes Division of the Sûreté du Québec Provincial Police force;

2.    The investigation targeted a group of individuals whose criminal activities included possession and trafficking of identity information, identity fraud, conspiracy and fraud;

3.    The investigation led to a total of fifteen individuals, including the accused, being charged with various counts all related to fraud, conspiracy and identity theft;

4.    The group’s modus operandi can be described as follows:

a.    Obtain people’s identity information and make profile sheets containing their names, dates of birth, addresses and social insurance numbers;

b.    Make various types of false documents such as identity cards, cheques and pay stubs;

c.    Verify in every major banking institution if the person whose identity was stolen is a client;

d.    A “runner” opens accounts in banks where the person is not already a client;

e.    A “runner” deposits counterfeit cheques in newly opened accounts and withdraws money and/or makes cash advances.

5.    The group’s criminal activities over a one-year period amounted to a fraud of at least 600 000$ and a loss incurred by various banking institutions of at least 300 000$;

6.    The accused’s involvement in this file was discovered during the surveillance of the group’s leader, Mr. Fred Joseph;

7.    Following said surveillance during which Fred Joseph was seen going to the accused’s home on at least two occasions and leaving with documents in his hands, a search warrant was obtained for the accused’s domicile located at 15645 du Bosquet in Pierrefonds;

8.    During the search, the officers found the following:

a.    19 passport-size photographs of 6 different individuals. Among these individuals, 4 are known runners for the criminal group, 3 of which are currently facing criminal charges;

b.    Sheets bearing the profiles of 9 identity theft victims. Each sheet contained the victim’s name, address and bank account numbers. Along with that information were valid addresses of various bank branches;

c.    Forgery equipment:

i.              Two laminators;

ii.             A black light;

iii.            An embosser;

iv.           Paper used to print cheques;

v.            A paper slicer;

vi.           Plastic film used to plastify cards;

d.    A USB key containing image files of logos in various sizes for the Royal Bank of Canada and the Société de l’assurance automobile du Québec.

9.    Between May and November of 2016, the accused and Fred Joseph, the group’s leader, exchanged text messages on a regular basis;

10.  On at least 6 occasions during that period, Fred Joseph sent the accused text messages requesting the production of false cheques.

2- The circumstances of the offender

[12]        The offender is 55 years old and has no prior convictions. He is a Canadian citizen as well as a citizen of his native Nigeria. He is married and currently lives with his wife and two young children (aged 6 and 13) in Pierrefonds, a suburb of Montreal.

[13]        Mr. Edugie produced no evidence and he chose not to address the Court during the sentence hearing.

[14]        As such, most of the information held by the Court stems from the pre-sentence report,[3] which both parties jointly requested.

[15]        In his early 20s, the accused worked as a teacher in Nigeria. At age 25, he immigrated to the United States where he got married and had a first child, who is now 21 years old and still lives there. Five years later, in 1999, he immigrated to Canada and obtained his citizenship in 2002.

[16]        With the help of employment agencies, he held various jobs in Quebec. More recently, he obtained a DEP trade certificate in building maintenance and is looking for work in that field.

[17]        In 2003, he remarried to a Nigerian woman who joined him in Montreal. They had two children. The accused’s wife works as a nurse. Mr. Edugie is active in his community and is even the president of an unspecified humanitarian aid association.

[18]        In 2010, Mr. Edugie inherited a family farm in Nigeria. Since then, he travels to his native land every year and stays there during the agricultural season. While there, he also continues to pursue a university degree.

[19]        Despite pleading guilty and acknowledging the detailed above-mentioned ASF, when he met with the probation officer for the purpose of his PSR assessment, he denied that the material found in his home was used to commit the offences.

[20]        In fact, he claimed to be a victim of “deceptive appearances”. He added that he had been manipulated by Joseph, the head of the criminal network, who had befriended him after his arrival in Quebec. However, he said little about the context of the commission of the offences.

[21]        Regarding the motive for the crimes, the accused denies having acted out of greed. Yet, it is difficult for him to identify any other possible reason for his behaviour.

[22]        While he expressed shame, he persisted in presenting a positive image of himself. Moreover, while he asserts remorse, “his regrets seem … more related to the impact of the judicial process in his life than to compassion for the victims”.[4]

[23]        The probation officer concludes that greed seems to have been a contributing factor to Mr. Edugie’s criminal behaviour, but she acknowledges that the accused might have been even more interested in gaining prestige and recognition. Personal pride and image are clearly important to him. He likes to be portrayed as the “man of the hour”, he likes to be in control, successful and he likes to feel needed.

[24]        The probation officer observes that the accused’s capacity for introspection is poor. Instead, he is result-driven. The officer concludes that that risk of reoffending seems low in the short term due to the deterrent effect of these judicial proceedings. However, in the longer term, the risk of reoffending remains, given the lack of acknowledgment by the accused of his wrongdoing.

[25]        As mentioned above, Mr. Edugie chose not to testify at the sentence hearing or make an address under s. 726 C.C.

[26]        Instead, through his counsel’s submissions, it was stated that he has remorse for his actions. Counsel also stated that Mr. Edugie had not made any money from this endeavour. Instead, the network’s mastermind, Fred Joseph, had promised to pay him, though that never materialized.

[27]        Returning to the issue of remorse, counsel stated the following:

The accused’s involvement in Mr. Joseph’s scheme is inexplicable. Even today, the accused still does not know why he did this.

One thing is clear though: he regrets his actions, he is ashamed and he understands the consequences.

POSITIONS OF THE PARTIES

[28]        The parties’ positions evolved somewhat in the course of the sentence hearing.

[29]        On behalf of the Crown, M^e Rossi highlights the highly sophisticated nature of the scheme and the deliberate participation by the accused over an extended period. She also stresses that the offences appear to have been motivated by greed.

[30]        The Crown describes Mr. Edugie’s expression of remorse as insincere and asks the Court to emphasize the principles of deterrence and denunciation. She recommends a sentence of 8 months imprisonment, followed by a two-year probation order.

[31]        On behalf of Mr. Edugie, M^e Fortier first conceded that a jail sentence was appropriate, subject to it being served in the community. In fact, at the outset of the sentence hearing, the parties jointly informed the Court that their only disagreement would be whether the sentence of imprisonment would be custodial or conditional under s. 742.1 of the Criminal Code. However, at the end of his submissions, the defence also contended that this was an appropriate case for a discharge under s. 730 C.C., citing Mr. Edugie’s difficulty finding work in his field of building management and his desire to visit his adult-age daughter in the United States.

[32]        The defence underscores the accused’s lack of prior convictions and contends that this was an isolated incident, out of character for Mr. Edugie. He stresses that the accused has two young children that he supports and that he is steadily employed. Moreover, the accused was not the head of the network; he merely had a supporting role in the scheme. Since the offences do not involve violence, the defence submits that this is a perfect case for a 6-month conditional sentence of imprisonment.

ANALYSIS

1- General sentencing principles

[33]        Sentencing is not an exact science.[5] It is a multifactorial and contextual process that has been described as one of the most challenging and delicate duties of a judge. Determining the fairest sanction for the accused while adequately expressing society’s condemnation and preserving the public safety requires a complex balancing exercise that often involves competing values and objectives.[6]

[34]        Underscoring the importance of retribution, denunciation and social condemnation in R. v. M.(C.A.), Chief Justice Lamer expressed that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass.[7]

[35]        The purpose and principles of sentencing are set out at sections 718 and following of the Criminal Code. 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 that denounce unlawful conduct, deter the offender and other persons from committing crimes, separate the offender where necessary, assist in rehabilitating him, provide reparations and promote a sense of responsibility in the offender, as well as an acknowledgment of the harm done.

[36]        Sentencing judges should exercise restraint,[8] scrupulously striving to avoid long jail sentences, unless proportionality so requires. That principle carries particular weight here, since the accused is a first offender. Normally, if jail is required, the sentence crafted should be the shortest possible that will achieve the relevant objectives.[9]

[37]        Ultimately, the principle of proportionality will be decisive.

[38]        Despite the importance of retribution and denunciation, the judge must exercise caution not to ignore or overlook all other factors. Instead, they must be considered in conjunction with the other legitimate objectives of sentencing, including rehabilitation.

[39]        The sentencing judge must always weigh all factors, both aggravating and mitigating, consider any relevant circumstance,[10] as well as apply all sentencing principles (including parity of sentence: s. 718.2(b) C.C.) in coming to a fit sentence. Said sentence must be tailored to the specific offender and the specific crime committed. While parity in sentencing remains relevant and desirable, it should never eclipse the fundamental principle of proportionality.[11]

[40]        The balancing process is a delicate one and will necessarily be case-specific. As recognized by the Supreme Court of Canada, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender.

[41]        As such, depending on the circumstances, it may be entirely appropriate to give certain principles paramountcy over others, or conversely, to consider a principle but then discount its impact.

[42]        In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.[12] Whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality, which is central to the sentencing process.[13]

2- The seriousness of identity theft and forgery offences

[43]        Identity theft and identity fraud are lucrative industries, particularly in North America. The same can be said of forgery of financial documents.

[44]        Both offences are objectively serious. For forgery, at s. 367(a) C.C., Parliament has provided a maximum sentence of 10 years imprisonment. For identity theft (which includes simple possession), s. 402.2(1)(5)(a) C.C. sets a maximum sentence of 5 years imprisonment.

[45]        Victims of identity theft, aside from the financial losses they suffer, often experience distress, anxiety and feelings of violation. It is quite easy to imagine how insecure such an intrusion can make a person feel.

[46]        They also face the expenditure of time and money to rehabilitate their reputations and credit histories, even when the bank absorbs the cost of the false cheque itself.

[47]        Identity theft is both a crime in itself and a tool for the facilitation of other crimes. Even mere possession of personal data is now sanctioned. Although it is at the earliest stages of broader identity crime operations, the collection, gathering and holding of sensitive personal information for criminal purposes is a vital component to fraudulent schemes.

[48]        While the evils of forgery have been known for decades, the crime of identity theft set out in s. 402.2 C.C. is a relatively new offence.[14] It came into force on January 8^th 2010.

[49]        The amendments to the Criminal Code arose from the consensus that identity theft continued to be a growing problem and that Parliament needed to react urgently. Among other changes, the amendments sought to criminalize the conduct of early-stage participants in fraudulent schemes: i.e. those who are tasked with the first step of gathering sensitive personal information, to be fraudulently used at a later time or by a different person. Originally a Senate-introduced bill (S-4), Senator John Wallace expressed on its second reading:

Identity theft is not a novel phenomenon. However, it certainly appears to have seen a large-scale increase over the past decade. Our society has been transformed into a technological and information society. We are now living in the information age. Information is a commodity that is bought and sold. It is available from everywhere in the world, transferable instantaneously to anywhere else, aided by new technologies.

[…]

While we do not have any comprehensive statistics on the cost of identity theft in Canada, it was estimated several years ago [by the Canadian Council of Better Business Bureaus[15]] that it costs Canadians over $2 billion annually.

[…]

Over the last decade or so, it has grown in complexity, scale and seriousness.[16]

[50]        On second reading in the House of Commons, opposition member Brian Murphy (who supported the bill) further discussed the concrete impact of these offences on Canadian society:

According to Louis Robertson, head of the RCMP's Criminal Intelligence Analytical Unit at the Canadian Anti-Fraud Call Centre, identity theft is now probably the most important problem for Canadian consumers.

In 2006, there were 212,000 Canadians who were victimized by identity theft, and their losses, in the use of identity as well as credit card manipulations, ran over $15 billion. Somewhere, depending on whether one subscribes to what PhoneBusters did on a call-in basis of $2 billion, or the RCMP with the $15 billion figure, is the reality about the figures three years ago.

As far as Canadians feeling that they are gripped by identity theft, there was a survey conducted by the McMaster eBusiness Research Centre, MeRC, on behalf of the Ontario Research Network for Electronic Commerce, ORNEC, which was designed to determine the nature and extent of identity theft and fraud so that lawmakers would know that they had the evidence to bring in a bill like this one.

The survey itself, with over 3,000 valid responses, suggests that 6.5% of Canadian adults, or almost 1.7 million people, were the victims of some kind of identity fraud in the last year. Over 20 million hours and more than $150 million was spent to resolve the problems associated with these frauds.

The issue is that this is costing the economy of Canada more than just the money that is pilfered and taken away from Canadian consumers and taxpayers. The survey also counts the millions of hours spent trying to recover the data that was lost and create new data. Anyone who has ever lost his or her wallet knows that it is a nightmare to replace all of the things in it.

More than half of the frauds that have occurred to the Canadian public involve nothing more than unauthorized purchases made with credit cards. That is certainly something we hear about quite often.

[…]

Most victims, 57%, did not know how their personal information was accessed, but when they did know, the identity fraud was most often associated with a business transaction conducted either in person in 25% of the cases, or online in 15% of the cases. This is exactly consistent with what I said earlier. People who are careful about their identity issues try to keep their business transactions discreet and personal, but it is actually more often the case in personal business conducted, that is 25%, than it is for online purchases. That is an important thing for Canadians to be aware of.[17]

[51]        Another Ipsos-Reid survey cited in the House suggested that in 2006, one in four Canadians - 25% or roughly 5.7 million Canadians - had been victims of identity theft.[18] Equally telling  was a 2008 Ekos survey cited by the RCMP’s Director General of Financial Crime in his address to the Commons’ Standing Committee on Justice and Human Rights, finding that 9 out of 10 Canadians were somewhat concerned that they could be victimized by identity theft and fraud.[19]

[52]        Alas, dating back to 2006-2009, even these alarming statistics are now outdated and pale in comparison to the current prevalence of these types of crimes.

[53]        Identity theft, forgery and credit card offences are all within the same family of fraudulent conduct.

[54]        In R. v. Beauchamp, the Ontario Court of Appeal underscored how crimes relating to fraudulent debit and credit card skimming schemes cost Canadians several hundred millions of dollars each year. The seriousness of co-ordinated criminal activity should not be gainsaid. In the context of credit card fraud, the harm potentially occasioned by the crime is far-reaching and of considerable magnitude, implicating numerous victims. It affects both financial institutions and members of the public.[20]

[55]        In my view, these observations apply equally to fraudulent cheque schemes and identity theft in general. In fact, in R. v. Gonzales, the British Columbia Court of Appeal opined that identity theft under s. 402.2 C.C. is a serious offence and that general and specific deterrence should weigh heavily on sentence as the crime poses a serious risk to the community.[21] Similarly, in R. v. Bradley, the Alberta Court of Appeal stressed that identity theft has serious implications, not only for the victims being defrauded but for the victims being impersonated. The repercussions to persons being impersonated are considerable and ongoing.[22]

[56]        The same concerns were echoed by Marchi J. in R. c. Khalladi, in which he stressed the prevalence of identity theft and the damage it causes to society. While the immediate victims are often considered to be the banks, inevitably, their losses are passed on to the innocent consumers through service charges and interest rate increases.[23]

[57]        The Crown provided several cases in support of its position. It appears that the range of sentences is very broad.

[58]        Courts must always be careful when considering other trial-level sentencing decisions. Each case is obviously dependent on its own facts. Furthermore, the parity principle does not require equal or identical sentences for similarly situated offenders, nor is it to be applied in a rigid fashion. Nevertheless, although a comparative analysis with other sentencing caselaw always has its limits, it does remain a useful exercise.[24] To be clear, however, none of the cases provided are “on all fours” with the matter before me.

[59]        In R. v. Thobani, the accused, a first offender, pled guilty to multiple charges, including counts of possessing items he knew were adapted for use in forging credit cards, identity theft under s. 402.2(1) C.C., possession of another person’s identity documents and drug offences. He and two other men made various purchases over two days using fraudulent credit cards. The fraud amounted to 7 200$. When the police executed a search warrant at his residence, they found equipment for making false credit cards and identity documents, at least 6 000 credit card numbers, 50 fraudulent credit cards, a quantity of blank cards and stolen identity documents. He was 32 years old at the time of the offence and 34 years old at the time of sentencing. He had a diploma in e-commerce and was gainfully employed. He also filed several letters of support. His remorse appeared to be sincere. Nevertheless, his motivation for offending was profit. After describing him as having had “a substantial and significant role in the enterprise”, the judge sentenced him to one year’s imprisonment, citing:

[such offences will result in] a lessening of faith by people in the financial field regarding the validity of documents that we all take for granted, that we rely on every day. I am referring to identification, bank cards, credit cards and documents of that nature. These are crimes that go to the root of how people live in our society and unless these crimes are checked in a serious way, unless the courts and others deal very seriously with these types of offences, which frankly are identity theft offences, it will lead to a lessening of the whole social fabric that we all rely on.[25]

[60]        In the recent case of R. v. Sabsabi, the accused, an immature 25-year-old first offender, pled guilty to possession of equipment used in the fabrication of false credit cards. His PSR assessed the risk of reoffending as moderate. Yet, he did not accept full responsibility for his crime. Before the Court, he seemed particularly nonchalant about the charges. He was sentenced to 6 months imprisonment.[26]

[61]        In R. v. Chin, the accused pled guilty to identity theft, possession of property obtained by crime and possession of forged credit cards. In the course of executing a search warrant at her residence, the police found hundreds of cards, some false and some real, stolen passports and equipment capable of manufacturing fake cards. The offender, a drug abuser, was 24 years old at the time of sentencing. She had a minor criminal record for dangerous driving and a previous discharge. Since being released on bail, she had made important strides towards rehabilitation, upgrading her education and establishing her own legitimate business as well as becoming involved in her community. Although the range of custodial sentence would ordinarily be 9 to 12 months, given her significant progress, Johnston J. held that a 12-month conditional sentence was appropriate.[27] In fact, due to the accused’s significant rehabilitation efforts, the Crown agreed that she receive a conditional sentence; it conceded that Ms. Chin did not need to go to jail.[28]

[62]        In R. c. Paul, the accused was granted a 6-month conditional discharge after pleading guilty to possessing false credit cards and equipment for their production. However, the 24-year-old first offender expressed sincere remorse. He was gainfully employed and produced a glowing letter of reference by his employer. He was involved in volunteer work at a local community centre, studied full time in “trading and finance” and hoped to find a job in the stock market. He was also expecting the birth of his first child in the following months. The PSR was generally positive and the judge concluded that the risk of reoffending was low. Finally, he was a permanent resident in Canada, awaiting his citizenship.[29]

[63]        Beyond the decisions submitted by the Crown, I found the following cases to be particularly instructive.

[64]        In R. v. Ireland, the accused, a 20-year-old first offender, pled guilty to 11 counts of fraud, forgery and related offences. He opened bank accounts in the names of people whose identities had been stolen, negotiated counterfeit cheques, opened an account in his own name using a blank cheque from an institution in which he had no interest, presented forged cheques and used a forged driver’s licence. He also impersonated one of the people whose identity had been stolen, cashing cheques, obtaining services and acquiring loans in that person’s name. The total loss to banks and individuals was between 80 000$ and 100 000$. The proceeds were used to support his self-indulgent lifestyle. The offences were sophisticated and they were carried out over a long period of time. In the circumstances, the British Columbia Court of Appeal upheld a sentence of 18 months imprisonment.[30]

[65]        In R. v. Kanagaratnam, the accused, a 27-year-old first offender, pled guilty to various counts of possessing instruments for forging credit cards, falsifying a credit card, possession of a forged credit card and identity theft. He and his accomplices used devices that were placed over the top of ATMs in order to capture card data from users. The stolen data was then placed on duplicate cards which were used to withdraw funds. The offences involved a high degree of planning and sophistication. The total loss was 98 570$, none of which was recovered. The accused was a Sri Lankan immigrant who had yet to obtain his citizenship; he had fled his country to escape civil war. He was engaged and employed. In his PSR, the accused minimized his responsibility and blamed others for his participation. He was found to be a medium risk to reoffend. He expressed regret and had participated in several programs while in custody. Had it not been for his immigration status, the Court would have sentenced him to 2 years^-1day imprisonment. However, in order to preserve his right of appeal against a deportation order, he was sentenced to 14 months imprisonment.[31] Incidentally, the judge held that a conditional sentence would be inconsistent with the fundamental principles of sentencing.[32]

[66]        In R. v. Subhag, the British Columbia Court of Appeal upheld a sentence of 20 months imprisonment for a planned, “fairly sophisticated identity theft scheme”. The accused, a 54-year-old man with unrelated prior convictions, pled guilty to having used false identification cards bearing his own photo, but the names of two other individuals, in order to conduct various banking transactions. The identity theft involved about 250 000$, of which the accused kept 50 000$. The accused, a heavy drinker, was a truck driver. He had a heart condition for which his medication cost him 400-500$ per month. In upholding the sentence, the Court reiterated that “there is no question the courts must respond severely to address crimes of identity theft”.[33]

[67]        In R. v. Coman, the accused, a 36-year-old first offender, pled guilty for his participation in a group of 9 people involved in a sophisticated debit card skimming, counterfeiting and bank fraud ring that operated over a period of 5 days. Actual losses incurred by financial institutions were 38 147$, while potential losses were estimated at 648 820$. The accused was not the directing mind of the operation and he had no special expertise. He was steadily employed and his motive was to earn money to help his family through a difficult time. He had also spent 4 ½ months in pre-trial custody. Taking the custody into account, he was sentenced to a further 15 months to be served in the community.[34]

[68]        It appears clear from the authorities that crimes of identity theft and related frauds carried out in an organized, planned and deliberate manner, call for sentences which make a strong statement denouncing the activity and which act to deter the individual offender and other who would be tempted by the money to be made in these activities.

3- The appropriateness of granting a discharge under s. 730 C.C. in the case at bar

[69]        At the tail end of the submissions, by all appearances, the request for a discharge was a hastily improvised afterthought.

[70]        To state the obvious, a discharge and a jail sentence (conditional or custodial) could not be farther apart. They are at opposite ends on the spectrum of possible sanctions.

[71]        The discharge is one of the most lenient sentences available under the Criminal Code.[35] The Court’s authority to grant an offender a discharge is not based on some unfettered or arbitrary exercise of discretion. Instead, s. 730(1) C.C. sets out two conditions which must be met before a discharge may be granted by a sentencing court:

1.   A discharge must be in the best interests of the accused (“l’intérêt véritable”); and

2.   A discharge must not be contrary to the public interest.

[72]        Thus, a discharge will be permissible only when the Court is satisfied that the two prerequisites exist.

[73]        As will be explained below, given the plethora of aggravating factors, the Court concludes that a discharge in this case would be contrary to the public interest. Nevertheless, a few observations are called for regarding the first factor of “best interests”.

[74]        Strictly speaking, in common parlance, it will always be in the accused’s “best interests” not to have a criminal record. Alas, something more is required by s. 730(1) C.C., beyond the generic and ever-present interest of every citizen to not have a criminal record. Otherwise the first criterion would be universally applicable, which runs against the well-entrenched principle of statutory interpretation that Parliament does not speak in vain.[36] Similarly, the simple fact of being a first offender does not suffice, in and of itself, to warrant a discharge.

[75]        In R. c. Corbeil-Richard, the Quebec Court of Appeal observed that “en principe, l'intérêt de l'accusé présuppose que ce dernier est une personne de bon caractère, qui n'a généralement pas d'antécédents judiciaires et qui ne présente pas de problème en matière de dissuasion spécifique et de réhabilitation”.[37] In R. v. Elsharawy, the Newfoundland Court of Appeal similarly indicated that the first factor presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions.[38] This was quoting from the leading case of R. v. Fallowfield, in which the British Columbia Court of Appeal explained that s. 730 should not be exercised as an alternative to probation or to suspended sentences, nor should it be applied routinely to any particular offence.

[76]        For starters, as discussed below, Mr. Edugie does require personal deterrence and rehabilitation.

[77]        As for the significant consequences, this requirement has been a constant in the caselaw since the early 1970s. In R. v. Sanchez-Pino, a shoplifting case, the Ontario Court of Appeal referred to "a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions".[39] Other terms used have been "excessive and disproportionate prejudice caused by a conviction",[40] "very serious consequences",[41] "serious and disproportionate effects",[42] or "significant repercussions outside the ordinary consequences of a criminal conviction".[43]  The consequences on one's employment or career is but one example that comes to mind.

[78]        As pointed out by the Quebec Court of Appeal in R. c. Naimer, even though the possibility of professional consequences may suffice to establish the “best interests” of the accused in obtaining a discharge,[44] said possibility must be beyond merely theoretical or hypothetical.[45] It must be supported by evidence.

[79]        Through the years, other appellate courts have often similarly held that there should be some evidence of the potential consequences, significant repercussions or disproportionate effects, as opposed to pure speculation.[46] Mere allegations will not suffice.[47]

[80]        Here, Mr. Edugie argues that a criminal record could “greatly hinder him” in his yearly travels to Nigeria to work on his family farm. There is no basis whatsoever to this argument. The offender is a Nigerian citizen. As such, his home state has no reason or power to deny him entry into his own country.

[81]        He also raises the fact that his 21-year-old daughter still lives in the United States and that a criminal record might greatly impede his ability to go visit her. Yet, there is no evidence as to how often he might want to go visit her, or even evidence about the nature of their relationship. Does he still see her? Does he still speak to her? When was the last time he met her in person? Being an adult, can’t his daughter travel to Canada to see her father?

[82]        More importantly, no evidence was presented regarding:

(1)     Whether or not a criminal record would bar him from entry into the United States; or

(2)     Whether or not a discharge would in any way help him gain entry into the United States, given his verdicts of guilt.[48]

[83]        In my view, the Court cannot take judicial notice of either element. On several occasions, Superior Courts have held that there is no judicial notice of the impact of a conviction on the offender’s ability to travel to the United States. Such matters are the subject of foreign law; as such, evidence is required.[49] For the sake of argument, even if we are to assume that a criminal record might preclude entry to the United States, there is certainly no evidence that a discharge would dispel these difficulties.

[84]        To state the obvious, s. 730(3)’s deeming provision is domestic law and has no extraterritorial application. In other words, Parliament cannot direct the United States Government to interpret a discharge in any way, or its effects on the predicate guilty verdict(s).

[85]        In fact, in R. c. Blais, in overturning a discharge, Martin J. explained that granting a discharge in no way guarantees lawful entry into the United States, especially since the complete overhaul of its immigration and customs policies after the World Trade Center attacks on September 11^th 2001.[50] In fact, in that case, there was concrete evidence in affidavit form (from the same American lawyer who had filed an affidavit in the famed R. c. Rozon decision[51]) that candidly admitted that things had changed since September 11^th and that the I.N.S. might not honour the effect of discharges any more.

[86]        In light of the foregoing, the Court concludes that the offender has not established that a discharge would be in his best interests.

4- The criteria for imposing a conditional sentence of imprisonment

[87]        A conditional sentence of imprisonment may be considered where (1) the safety of the public would not be endangered by the offender serving the sentence in the community, and (2) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 C.C.

[88]        The requirement in s. 742.1(a) C.C. that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. In making this determination, the judge should consider the risk posed by the specific offender. Two factors should be taken into account:  (1) the risk of the offender reoffending, and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

[89]        In R. v. Proulx, the Supreme Court clearly rejected offence-specific presumptions against conditional sentences. It is now well settled that there are no categories of offences that are presumed to bar a conditional sentence. Provided it is statutorily available, the conditional sentence regime must be considered by the sentencing judge.[52]

[90]        Here, neither of the offences committed by Mr. Edugie contains a minimum sentence, nor are they expressly disqualified in s. 742.1 C.C. from the conditional sentencing alternative. Thus, a conditional sentence could be imposed in this case. In principle, it is even available for premeditated theft or fraud-like offences.[53]

[91]        That being said, the opposite is also true. There is no category or class of offences that prima facie warrant jail sentences to be served in the community. While defence counsel is correct to point out that Mr. Edugie did not commit violent crimes, custodial sentences are not limited to violent crimes. As Côté J.A. expressed in R. v. Ambrose:

The Supreme Court’s comments about not foreclosing any category of offence from consideration for a conditional sentence are no invitation to necessarily impose one. The Supreme Court specifically rejected the notion of presumptions in favour of, as well as against, conditional sentencing for any category of offence.[54]

[emphasis added]

[92]        Instead, the fundamental principles of proportionality and individualization shall determine the fit sentence on a case-by-case basis.

[93]        In R. v. Proulx, the Court explained that the conditional sentencing regime was enacted “both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing”. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Conversely, where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.[55] Having said that, a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. Each case must be considered individually.[56]

5- Weighing the aggravating and mitigating factors

a)     The aggravating factors

[94]        The Court finds the following aggravating factors to be present:

·        The planned and deliberate nature of Mr. Edugie’s offences, within a sophisticated scheme.

·        The number of items seized at the accused’s home and the variety of the equipment in his possession suggest that he was involved in producing (1) counterfeit cheques and (2) counterfeit identification cards. As such, he was more than a one-trick pony.

·        As a producer of the false documents, Mr. Edugie was a vital part of the operation, essential to its success.

·        The number of victims directly the subject of identity theft, with their data in the possession of the accused at the time of the police’s intervention: 9 victims.

·        The duration of Mr. Edugie’s involvement in the scheme: 6 months (from September to February).

·        The crime was motivated by greed and self-interest. No other possible motivation was advanced.

·        The value of the fraud committed by the group (over 600 000$) and the actual financial loss suffered by the financial institutions: 300 000$.

·        The fact that his offences were committed in association with a criminal organization: s. 718.2(a)(iv) C.C.

[95]        On the last point, the Crown argued, correctly in the Court’s view, that these offences were committed in association with or at the direction of a criminal organization, which triggers the statutory aggravating factor found at s. 718.2(a)(iv) C.C. I have approached this argument with much caution, given its implications on sentence.

[96]        For the purpose of the provision, s. 467.1(1) C.C. defines a “criminal organization” as a group, however organized, that is composed of 3 or more persons and has as one of its main purposes or main activities the facilitation or commission of one or more serious offences[57] that would likely result in material benefits for the group or any member thereof. As observed by the Ontario Court of Appeal in R. v. Beauchamp, the broad language used by Parliament is intended to encompass a wide array of co-ordinated serious crimes, including bank-related fraud.[58]

[97]        Parliament has made plain that some form or structure and degree of continuity are required to engage the “organized crime” provisions.[59] As such, the aggravating factor will not apply in the absence of evidence that there was a group with structure or continuity beyond one incident.[60] Something more than a mere conspiracy is required. Similarly, groups who operate together on an ad hoc basis with little or no organization will not suffice.[61]

[98]        Of course, that evidence may be made by way of admissions. In the case at bar, the contents of the ASF are determinative to the issue.

[99]        Regarding the nature of the organization, as explained by the Supreme Court in R. v. Venneri, the courts should be careful not to limit the scope of the provisions to the stereotypical models of organized crime, that is: highly sophisticated, hierarchical and monopolistic entities.[62]

[100]     As for the phrase “in association with”, it should be interpreted in accordance with its plain meaning and statutory context. It captures offences that advance, at least to some degree, the interests of a criminal organization - even if they are neither directed by the organization nor committed primarily for its benefit.[63]

[101]     In the case at bar, the organizational elements of the definition are easily satisfied:

·        15 individuals were involved in the enterprise, all of which were charged;

·        The group was headed by a leader: Fred Joseph;

·        The enterprise committed various fraud-related offences, pursuant to a well-organized scheme;

·        There was a coordinated division of labour amongst the offenders. The participants had various complementary roles: acquiring personal data, verifying client status at financial institutions, runners who opened new accounts, runners who deposited the counterfeit cheques and those who manufactured the fake cheques and identification cards to be used for the account openings;

·        The criminal activities of the group occurred over a one-year period, which demonstrates a considerable degree of continuity.

[102]     This squarely qualifies as a “criminal organization”. Its level of structure and continuity posed an enhanced threat to society.

[103]     In the case at bar, the evidence leaves no room for doubt as to the required nexus between Mr. Joseph’s organization and the offences of possession and fabrication committed by Mr. Edugie. The organization received a direct benefit from his manufacturing of cheques and identification cards. Moreover, the accused obviously knew that his actions were benefitting the group. He was in direct contact with Joseph and filled in his orders. Moreover, he was in possession of passport-sized photos of several “runners” for the group. Thus, he knew that he was making cards for several men. In other words, he knew about the larger group of participants in the network and the general structure of the enterprise.

[104]     This aggravating factor was established beyond a reasonable doubt.

[105]     Undeniably, the network’s grasp was far-reaching. It was large in size, involving 15 accomplices, well organized and sophisticated. Moreover, their capacity to verify whether or not their targets were already existing clients in major banks suggests access to inside information coming from the banks themselves, likely from rogue employees. This is beyond unsettling.

[106]     As listed above, I consider as aggravating the accused’s repeated participation over the 6-month period. In that regard, the Court explicitly dismisses the defence’s argument that this was an “isolated incident”. Instead, it was a deliberate, planned and continuing offence committed over the course of several months.

[107]     This was no momentary lapse of judgment or an “error”, as was contended. To suggest that it was is self-serving and inaccurately depicts the premeditated, well-considered nature of the crime.

b)     The mitigating factors

[108]     As for mitigating factors, I consider the following:

·             The guilty plea.

·             The lack of prior convictions.

[109]     In my view, these are the only mitigating factors in the case at bar. As for the guilty plea, its impact is somewhat tempered.

[110]     As recognized by the Quebec Court of Appeal in R. v. Barrett, the credit accorded by reason of a guilty plea may be lessened where the evidence of guilt was overwhelming.[64] That is the case here. The search warrant led the police to discover the counterfeiting equipment, the photos and the data sheets inside the accused’s home. This was real, tangible evidence of offence-related property. Such equipment could have no other conceivable purpose. Moreover, in addition to the surveillance evidence linking the accused to the mastermind, there were 6 text messages from Mr. Joseph to the accused expressly ordering fake cheques from him. As explained by Laforme and Modaver JJ.A. (as he then was) in R. v. Daya, the accused was “caught red-handed, he had no defence to the charges and a trial would simply have postponed the inevitable”.[65]

[111]     To be clear, even a guilty plea in the face of overwhelming evidence is still a relevant mitigating factor. It always will be. However, it will logically carry less mitigation.[66]

[112]     Another aspect of a guilty plea that usually justifies granting a credit on sentence is its implicit demonstration of remorse. That element is absent in the case at bar. Sincere remorse is generally considered to be an impactful mitigating circumstance on sentence. Indications of true remorse are a glimpse of change in attitude on the part of the offender, which may be a sign that he has understood how his behaviour was reprehensible and that he learned something beneficial from his past encounters with the justice system. After all, s. 718 C.C. calls for a sense of responsibility in offenders and an acknowledgment of the harm done to victims.

[113]     Sincere remorse is the first step towards meaningful rehabilitation.

[114]     Obviously, lack of remorse is never an aggravating factor. Nevertheless, it is not irrelevant to the sentencing process. In certain circumstances, it may shed light on the offender’s likelihood of reoffending.[67] Moreover, lack of remorse may disentitle an accused from leniency at the sentencing stage.[68]

[115]     In particular, as the Quebec Court of Appeal has recognized, lack of sincere remorse is properly considered as one of a variety of factors in determining whether a conditional sentence is appropriate.[69]

[116]     As mentioned above, in the course of his meetings with the probation officer, Mr. Edugie was coy about exactly what he acknowledged. Despite his signed admission of the detailed ASF during his guilty plea, he significantly backtracked and denied that the objects in his home were used to commit identity fraud.[70] Instead, he claimed to be the victim of false appearances and complained that he had been manipulated by the operating mind of the network.

[117]     This minimization speaks volumes about the offender’s sense of responsibility. Dishonesty is the very essence of the offences committed. And evidently, dishonesty persists.

[118]     Similarly, as mentioned above, during the preparation of the PSR, Mr. Edugie’s regrets seemed more aimed towards the predicament that his actions placed him in, as opposed to the consequences on the lives of the victims of fraud.

[119]     Before the Court, through his lawyer, the accused insisted that he had remorse. Yet, he never actually uttered the words himself. Nor did he take the opportunity to clear up or correct any of the assertions by the probation officer in the PSR.

[120]     This scenario is reminiscent of R. c. Lemonnier, where the Court of Appeal observed: “L’argument étonne lorsque formulé par celui qui, sur la base de regrets exprimés à l’auteur du rapport présentenciel dont il ne témoigne cependant pas devant le juge, réclame la clémence du tribunal”.[71]

[121]     Nevertheless, after the expression of regret, in the same breath, counsel claimed that the accused’s participation in the scheme was completely inexplicable. To this day, he has no idea why he did this. Such statements almost suggest that his crimes were involuntary.

[122]     Not so fast… The Court is not as naïve as the accused would hope.

[123]     With great respect, those are superficial one-liners devoid of any actual meaning. Mr. Edugie’s choice to involve himself with sophisticated criminals is not “inexplicable”. Rather, it is “unexplained”. There is an enormous difference between the two concepts. Mr. Edugie, exercising his right to silence, chose not to tell the Court why he committed his crimes. That is fine. But he cannot then claim that he committed his premeditated offences for some obscure, incomprehensible reason.

[124]     Similarly outrageous is the assertion that he still does not know why he did this. This was a rather pathetic attempt to downplay his crimes. Mr. Edugie is an educated, grown man. He obviously knows why he committed his crimes. To suggest otherwise is incredulous and insults the intelligence of this Court.

[125]     Sentencing courts have a positive duty to assess whether expressions of remorse are genuine. As aptly stated by Ray J. in R. v. Regier, “remorse is meaningless unless it carries with it some acknowledgment of wrongdoing. Otherwise, it is just words”.[72] Those who commit serious offences of personal violence must know that they are accountable for their actions and that accountability will not necessarily be satisfied by simply saying “I’m sorry”.[73]

[126]     Ultimately, care must be taken to distinguish (1) remorse regarding the acts committed, and (2) regret regarding the predicament the accused finds himself in as a result of the charges. Those are two very different things. In fact, in R. v. H.E., the Ontario Court of Appeal held that the failure to make that distinction may amount to reversible error.[74] More recently in R. c. Poirier, the Quebec Court of Appeal aptly summarized:

Pour constituer un facteur atténuant, les remords doivent être sincères et ils doivent témoigner d’une prise de conscience de la nature et de la gravité des gestes posés. Les regrets qui découlent quant à eux des conséquences fâcheuses des procédures judiciaires, ou encore ceux qui ne démontrent pas une prise de conscience véritable des torts causés, ne sont d’aucun secours au contrevenant.[75]

[emphasis added]

[127]     The accused falls precisely in the second category. His expressions of regret are convenient and superficial. Rather than reflect empathy or acknowledgment of the harm done, they are focussed on the consequences on his own life.

[128]     Thus, the Court dismisses his claims or regret or remorse. There is no contrition here. There is merely disappointment that he got caught.

[129]     Despite the foregoing, fortunately, as mentioned above, the parties did agree to resolve the matter in advance, thereby freeing up valuable Court resources, making room on the docket and avoiding the useless and wasteful displacing of witnesses. A 3-day trial was cancelled. Thus, the guilty plea is definitely entitled to some credit.

c)     Other relevant factors in crafting a fit sentence

i) The employment of the accused

[130]     The potential loss of employment will often be an important factor in sentencing. Maintaining employment can help foster the offender’s rehabilitation. However, the importance of this factor will vary from case to case. In certain cases, it will, because of the nature of the offence, be a minor factor.

[131]     In the case at bar, should he be incarcerated, the offender will be prevented from continuing his work. During the submissions, counsel invoked the fact that Mr. Edugie is steadily employed. The PSR states that he works as a pizza delivery driver, while he continues to try to find work in the field of business management.

[132]     While loss of employment may mitigate the need for specific deterrence, it does not displace the need for general deterrence and denunciation.[76] Furthermore, the Quebec Court of Appeal has already held that merely having a steady job is not a mitigating factor, in and of itself. In R. c. Girard, the Court explained:

Le seul facteur atténuant invoqué par le procureur de l'intimé consiste dans le fait que ce dernier avait un travail régulier tant lors de son arrestation qu'au moment de l'enregistrement de son plaidoyer de culpabilité et de l'audition sur sentence. Est-ce vraiment un facteur atténuant? En effet, s'il fallait que le seul fait d'avoir un emploi mérite en faveur de la clémence, force est de conclure que, surtout en matière de trafic de stupéfiants, très peu d'accusés seraient sujets à recevoir une sentence normale et encore moins une sentence exemplaire. Au contraire, par ailleurs, le fait que l'intimé avait un emploi régulier et bien rémunéré me paraît, en l'espèce, constituer un élément aggravant dans la mesure où il démontre que ses activités criminelles sont motivées exclusivement par le lucre et l'appât du gain sans effort.[77]

[emphasis added]

[133]     Viewed from another angle, in R. c. Bériault, the Court of Appeal observed that when an offender was already working at the time of the offence, it is difficult to invoke his employment at the time of sentencing as a sign that he is less likely to reoffend.[78] For that same reason, the fact that Mr. Edugie was steadily employed does little to reassure the Court that the accused will not reoffend.

[134]     Moreover, in the case at bar, at the risk of sounding insensitive, the offender will be able to easily find a similar job (if not the same one) delivering pizzas upon his release from jail. As such, the loss of the job will not have a disproportionate or long-lasting effect on his life.

[135]     As for his difficulty in finding a job in the field of building management, that was an eminently foreseeable consequence of being convicted of fraud-related offences. Mr. Edugie, an intelligent adult, should have thought of that before he willingly chose to partake in a sophisticated fraud network targeting innocent citizens. His plight in that regard does not attract the sympathy of the Court.

ii) The impact on the offender’s family

[136]     The Court is not insensitive to the fact that the accused is currently co-parenting his two young children. Although his wife is also employed, the Court can take judicial notice of the fact that nurses in this province do not earn high-paying salaries.

[137]     As such, if he is incarcerated, the family as a whole will inevitably be indirectly penalized. Their already stretched budget will likely become overwhelming.

[138]     Nevertheless, as Steinberg J.A. expressed in R. v. Gauthier, “if as a result of [the accused's] imprisonment others suffer and more harm is done, that is attributable to the conduct of [the accused] and not the severity of the law. Those who are entrusted with the financial security of others are no less responsible for their acts”.[79] Expanding on these same principles in R. v. Newson, the British Columbia Court of Appeal aptly explained that consequences on children will be an inevitable consequence of the parent who decides get involved in criminal activity:

It is often the case that a parent's criminal offending creates hardship for members of the family. That children are often deprived of parental guidance and care when a parent is incarcerated is inevitable in cases of serious offending by a parent… [The accused] faces a significant period of incarceration.  Separation from his daughter is one of the hard realities of the situation [the accused] has created, and not one that may be cured in the circumstances before us.[80]

[139]     Writing for the Ontario Court of Appeal in R. v. Spencer, Doherty J.A. expressed similar views:

 

It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents… Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability.[81]

[140]     While these statements were made in the context of drug offences, the same reasoning is apposite here.

[141]     Had the Court been dealing with an isolated incident, or an offence committed impulsively or on the spur of the moment, I would have been far more receptive to this argument. However, it seems disingenuous and opportunistic to invoke one's children after committing a premeditated, deliberate and long-running offence.

[142]     The accused saw his children every day as he continued to produce fake identification cards and counterfeit cheques. What is even worse is that the offender committed his crimes inside the family home, where the kids lived. Had he not been caught by the Sûreté du Québec (as a result of its extensive investigation), the example shown to his young children would have been: “crime pays”. This is unacceptable. Here, the children will instead learn a heartbreaking but important lesson from their father’s sentence.

[143]     The accused’s children cannot be used as an escape hatch in the circumstances of this case.

6- Crafting the appropriate sentence for this offender

[144]     I have some difficulty applying the parity principle codified in s. 718.2(b) C.C., at least as it relates to the other members of the group. During their submissions at the sentence hearing, neither party informed the Court of what sanctions were imposed on the other accomplices. In fact, I do not even know if they have been convicted.

[145]     Obviously, for the purpose of sentencing, Mr. Edugie will be treated like a lower-level participant in the network. There is no suggestion that he was a controlling player. Had he been, a penitentiary sentence would have been inescapable. Having said that, his contributions were still integral to the overall scheme. The fake cheques and fake identification cards are the very tools that the runners used to conduct the fraudulent transactions on the front lines. In other words, without the counterfeit cheques and cards, there would be no fraud.

[146]     Mr. Edugie’s moral culpability is high. Despite the fact that he did not profit from the offences, he was a vital contributor to an enterprise that caused monumental losses to various financial institutions.

[147]     He was not a youthful, easily influenced offender. At 55 years old, he knew that his conduct was unacceptable and understood the consequences of defrauding others.

[148]     There is no evidence that he suffered from any addiction or that he was engaged in his crime to feed a habit of any sort. Nor is there evidence that he was in particular need of money. Instead, he was motivated by showboating and by the lure of easy profit.

[149]     Finally, there is no suggestion that he would have withdrawn from the operation had the police not intervened.

[150]     The evidence does not show that he is rehabilitated, nor is there a particularly convincing demonstration that he is on the path to rehabilitation, despite his lack of prior convictions. There is a heightened importance here of instilling a sense of responsibility in Mr. Edugie. His lack of insight or introspection, his lack of remorse, his attempt to portray himself as a victim and his superficial claim of ignorance as to why he committed the offence all lead the Court to conclude that the risk of reoffending in a similar manner persists.

[151]     The nature of the crimes and the aggravating circumstances heavily outweigh the mitigating circumstances in the case at bar.

[152]     The multiple aggravating factors are such that the Court will emphasize deterrence, denunciation and protection of society, over hopes of rehabilitation. Every person considering making easy money by participating in the activities of bank-fraud networks must understand that the law will react sternly to such conduct.

[153]     In the case at bar, a community-based sentence would not achieve an adequate level of deterrence (specific or general) or denunciation.

[154]     Furthermore, I have carefully considered s. 742.1(a) C.C. and am of the view that the self-centred focus of Mr. Edugie and the circumstances of these offences are such that I cannot achieve the promotion of a sense of responsibility in the accused, nor an acknowledgment of the harm done to victims and the community, except by imposing a custodial sentence.

[155]     Finally, I am not satisfied that Mr. Edugie would respect his conditions. His shifting position and his attempt to cast himself as a victim shows manipulation (albeit clumsy) and therefore weakens my trust that he would show respect to a court order.

[156]     In my view, when I balance all of the factors, including Mr. Edugie’s degree of moral blameworthiness, the seriousness of the offences, general deterrence and denunciation, his guilty plea and its context, as well as his personal circumstances, I find that an 8-month term of imprisonment will adequately and fairly achieve the objectives of sentencing in this case.

CONCLUSION

FOR THESE REASONS, the Court:

IMPOSES a sentence of 8 months imprisonment on each count, to be served concurrently.

PROHIBITS the accused, pursuant to s. 743.21(1) C.C., during the custodial period, from communicating directly or indirectly with Fred Joseph.

ISSUES a 2-year probation order, including the following conditions:

-Keep the peace, be of good conduct.

-Abstain from communicating directly or indirectly with Fred Joseph.

-Abstain from having in his possession any identification cards, debit cards, credit cards, cheques or other negotiable instruments in any name other than his own.

-Abstain from having in his possession any credit card numbers, debit card numbers or social insurance numbers other than the ones that have been lawfully issued to him.

-Abstain from possessing any skimmers or other device capable of reading, copying or writing credit or debit card numbers.

-Abstain from possessing any stampers or embossers.

-Abstain from possessing any blank cards suitable for creating credit cards, debit cards or identification cards.

-Abstain from possessing any electronic template suitable for creating debit cards, credit cards or identification cards.

-Abstain from possessing any lamination device or other equipment capable of producing identification cards.

-Abstain from using, or even having installed on his computer or tablet, graphic design software, including but not limited to the following programs/applications:

-Adobe Photoshop;

-Adobe Illustrator;

-Gimp;

-AutoCAD;

-Inkscape;

-CorelDraw;

-Adobe InDesign;

-Serif Drawplus;

-Xara Xtreme;

-Corel PaintShop;

-Corel PhotoImpact;

-Cyberlink;

-Sumopaint;

-Vector;

-Google Sketch-Up;

-Affinity Designer;

-ACDSEE Photo Editor.

 

 

		__________________________________ D. GALIATSATOS, J.C.Q.
Me Bianca-Catherine Rossi Counsel for the Crown
Me Jean-David Fortier
Counsel for the accused
Hearing dates:	June 11th, September 3rd 2019