Jerry & Jack's Case — Fraud — Conditional Discharge

Between
Her Majesty the Queen, and
Jack and Jerry Z.

[1996] O.J. No. 5267

Ontario Court of Justice (Provincial Division)
Toronto, Ontario
Judge Bassel

Sentenced:  14 February 1996
(70 paras.)

¶ 1     BASSEL PROV. J.:  Is there anything further that either counsel wanted to say to me before I?

¶ 2     MS ESSON:  No, Your Honour.

¶ 3     MR. PENNEY:  No, your Honour, thank you, you were very patient yesterday.

¶ 4     THE COURT:  That's fine.  Thank you much.  Okay. Just give me a minute here.  All right.

¶ 5     On February 13th, Messrs. Jack and Jerry Z. entered a plea of guilty before me, having elected trial before a provincial court judge, and they entered a plea to Section 327(1) of the Criminal Code, being in possession of a device to obtain telecommunication facility or service.

¶ 6     The, the Crown filed and read into the record an agreed statement of facts, and I don't intend to repeat them. They are there, they are on the record, and considerable comment was made by both the Crown and by Mr. Penney on behalf of the two accused with regard to the facts and legal submissions.

¶ 7     And I already indicated that on the issue, first of all, of what wasn't really a joint submission, per se, but was a submission by both the defence, at the defence end and the crown end, there were outer perimeters of what was, shall we say, an agreement as to, I believe as to a range of what I was being asked to consider.

¶ 8     The Crown attorney was asking me to register a conviction and impose a suspended sentence and probation for three years.

¶ 9     Mr. Penney was asking and urging me to, no quarrel with regard to the three years probation, and in fact he volunteered certain conditions that I am going to make reference to, Mr. Penney is asking me not to register a conviction against these two men, but indeed to exercise my discretion in regards to s. 736, and impose a Conditional discharge.

¶ 10     Now I believe that both counsel have agreed that to all intents and purposes I am treating both these accused as equally culpable in terms of to all intents and purposes as to what took place.

¶ 11     So taking it from the Crown's point of view, and then without repeating all of the Crown's argument, but just to sort of factor in how I have ended up coming to the conclusion I have, Ms Esson for the Crown is saying basically, and if I — notwithstanding that both of these men are first offenders, notwithstanding the plea, and notwithstanding their cooperation, and notwithstanding the immigration, we will call it the immigration status problem, and notwithstanding that they didn't reap that much from the undertaking, that (A) I should impose a suspended sentence, and that (B) I believe she is saying that were it not for those shall we say mitigating factors, a jail sentence would have been appropriate.

¶ 12     Now, she also of course says that by the nature of the offence, two years straight indictable, that it is tantamount to fraud, and that specific and general deterrence are paramount to the public, and the telecommunications services have lost money, that it wasn't an isolated or momentary act.  That the men appreciated - but whether they entered into the undertaking shall we say in good faith at a certain point, they either knew or should have known that it was an illegal activity, in other words, that it was wilful blindness.

¶ 13     And that the Crown takes the position that a discharge will not achieve the ends of specific and/or, or and including, I should say, general deterrence.  That although the two accused men are lower level participants, they assist the facilitation of a larger scheme.  And that I should consider those factors.  And that the immigration status that Mr. Penney asked is only one factor.

¶ 14     And that they didn't stop of their own free will. I believe one of them was, had a falling out with the head man and the other was - anyway, they were both ultimately arrested, but the point is that they didn't stop of their own free will.  The whole activity didn't go for very long as far as these two accused are concerned.  And my decision and my sense in this matter is, relates to these two accused, and these two accused alone.

¶ 15     Now Mr., Mr. Penney urges me to impose, as I say, a conditional discharge, and he reminds me of the provisions of s. 726, that I have to consider whether it is in the best interest of the accused and not contrary to the public interest (excuse me).  And as Mr. Penney quite correctly points out, it would be a strange day when someone wouldn't say it is not in the best interest of an accused to get a discharge instead of a conviction.

¶ 16     And we have to look there at the question of whether the rehabilitation process, factors such as the plea, ... whether the probation is, is, sort of envelopes the rehabilitation process without the necessity of a correctional facility type of imposition.

¶ 17     And then he asks me to consider in terms of his two clients, whether the facts with regards to these two men are so outrageous that the public interest cries out that I have to register a conviction here.

¶ 18     Jack Z. is, I believe, 22-years-of-age, came here in 1993, as a refugee claimant.  He was turned down in his refugee claim.  He is here.  He is married.  Mr. Penney tells me he still has a chance with regard to his immigration status.  He is fully employed - Mr. Penney filed an employer's letter to confirm this.  Mr. Penney tells me that he cooperated with the police when he was caught.  And came forward to the detective at a fairly early stage and wanted to cooperate.  That the plea is an indication of remorse.  And of course, as I said, that he has no record.

¶ 19     Jerry Z., no record again, 23-years-of-age. He has been in Canada longer.  He is married, has a child.  He has had some work record.

¶ 20     Both, both of the men here have spent time in custody, Jack Z. two days, and Jerry Z. three days, and Mr. Penney is asking me to factor that into the equation, and if I do, and use a two-for-one principle as being pretrial custody, that in effect Jack has spent four days and Jerry has spent six.

¶ 21     Now I have considered, I have considered this matter very carefully, and I appreciated the material that both counsel gave me, the authorities, and the authorities that we reviewed, and I have considered what I believe to be the relevant principles of general deterrence, specific deterrence, and the rehabilitation.

¶ 22     Obviously, as I say, without repeating it all, the negative and aggravating factors here are that although it is a lower level undertaking - lower level involvement of these two men - it does form part of the mosaic of allowing a large criminal undertaking to be involved and operate, and it wasn't an isolated or momentary lapse.  I believe at the outset it would be about a week of activity.

¶ 23     And that I have to give a message to these accused and to other people like the accused and to the public generally not to get involved in this type of activity.  That the actions of course have resulted in losses to these communication facilities.  And that although they weren't major participants, they were financially compensated, I think five-or-six-hundred-dollars a week for the short period that they were involved.

¶ 24     And another factor is that someone who comes to Canada, I mean the privilege of coming to Canada, is there an onus on them to be on their best behaviour?

¶ 25     Those are some ... really sort of ... some of the negative or aggravating factors.

¶ 26     From the positive side, they are young, neither of them have a record.  They have tried to do, they have tried to be employed.  There was some degree of co-operation.  They have entered a plea.  And I have asked the Crown attorney at an earlier stage, and indeed on February the 13th, what would be the estimate in terms of witnesses and time involved in this matter, and I believe there were 35 or 40 witnesses that would have been involved.  A preliminary hearing would have taken, I believe, approximately four weeks.  And I think that a trial would be estimated as six weeks.  And obviously a great deal of court resources would have been used, and police officers and other witnesses been involved.  That in itself isn't, we don't make special or extra special allowances because people plead guilty and for the purposes of just saving the court time, but it is a factor, as is, as are the immigration consequences a factor.

¶ 27     The fact that from a positive point of view that they both, by pleading guilty, have shown their remorse and coupled to that is the fact that Mr. Penney assures me that they did want to get to the police and cooperate with the police, but on the advice of their counsel, for which I can't criticize Mr. Penney or the accused taking proper legal advice until disclosure was made, that step was not done at that point.  Any capable counsel would want to investigate an behalf of his client before proceeding.

¶ 28     Another, it goes both ways, but in positive and negative really, the limited role in which the accused were involved and the short time period.

¶ 29     And of course Mr. Penney as part of his argument, as I say, was pressing me on the, or pressing the point of the immigration consequences, that even if I register - even if I impose a conditional discharge, that Mr. Z.'s not out of the woods as far as, as far as action being taken by immigration Canada.

¶ 30     I have considered the decision of Fallofield, 13 C.C.C. (2d) 450.  I have reviewed all of the authorities again that were provided to me by counsel.  And I have considered all of what I believe the relevant principles of sentencing in this matter.  And although - I mean, as I say, it is clearly in the best interest of the accused that a discharge be imposed.

¶ 31      And although I would say that this is very much on the most outerly perimeter of the equation, I decided to exercise my discretion in favour of a conditional discharge for both of these men.  And that is, so that is where I start then, there will be a conditional discharge.

¶ 32     They will be put on probation, and I will mention some terms, Ms Esson, and you can just, we can discuss that a little further.  But they will both be put on probation for three years.  They will report forthwith to the probation officer.  Report as directed in the future.

¶ 33     They will keep the peace and be of good behaviour and the other statutory terms.

¶ 34     They will, now, they will not - now you had, you had mentioned, Ms Esson, about some provisions about credit cards and, telephone credit cards and some apparatus.

¶ 35     MS ESSON:  Yes.  And those are that during the term of probation ... not possess any portable telecommunication equipment including cellular telephones or pagers.

¶ 36     THE COURT:  Just go slowly now so the clerk can get that down.  I am adopting that submission, I think it is appropriate right.

¶ 37     CLERK OF THE COURT:  Not to possess any portable?

¶ 38     MS ESSON:  Telecommunication equipment.

¶ 39     THE COURT:  Right.

¶ 40      MS ESSON:  Including cellular telephones or pagers.  And not possess any telephone calling cards.  Non association, no association or communication with Wilson C****.

¶ 41     THE COURT:  Other than, I suppose, if it is necessary - is it necessary for court purposes or no?

¶ 42     MS ESSON:  No, it's not.

¶ 43     THE COURT:  Okay.

¶ 44     MR. PENNEY:  That was the term of the bail, Your Honour, so I don't anticipate any problems with that.

¶ 45     THE COURT:  All right.  Are there any other terms?  I intend to add some other terms myself, but are there any other terms that the Crown is asking for?

¶ 46     MS ESSON:  No. Thank you.

¶ 47     THE COURT:  All right.  All right.  Now apart from the fact that both of you gentlemen volunteered it through your counsel, I am going to impose a condition that you perform 150 hours of Community Service, and that you will have to perform not less than 50 hours - sorry, I beg your pardon, not less than 75 hours in the first year.

¶ 48     You both of course volunteered it, but you are being given a great exercise of discretion, because of all of the circumstances, and you have got to give something back to community to remind you that you were given, I guess what we call colloquially, a break.  That other people will know that the conduct is not just a rubber stamp, in and out of the court.  And it will be good for you to give something to this country, give something back to this country, as your lawyer quite properly pointed out, and I believe you both volunteered to do that anyway.

¶ 49     Were there any other, no other conditions, Ms Esson?

¶ 50     MS ESSON:  No, Your Honour, thank you.

¶ 51     THE COURT:  All right. Obviously the probation will tell you, with the assistance of the interpreter and your lawyer, that if you breach any of the terms of the probation, you will be, it is a serious matter, you will be charged with a breach of probation, brought back here and the heat gets turned up, it gets worse.

¶ 52     You are being given a great opportunity here in not having a criminal conviction registered against you.  And it is a combination of the submissions by your counsel and by the fairness in which the Crown attorney has put this whole matter before the Court.  And also by my review of what I think were all the right principles.  So I hope that what was a stupid act is now once in the past behind you and that is the end of the matter, for your sakes and the sakes of your family and not to have me regretting what I did.

¶ 53     All right, Mr. Penney, anything else then?

¶ 54     MR. PENNEY:  No, Your Honour.

¶ 55     MS ESSON:  Thank you, Your Honour.

¶ 56     MR. PENNEY:  I am content with all that has been said.

¶ 57     THE COURT:  One final thing I might say is this, this was on the basic particular circumstances, the sentence of these two gentlemen and as personalized to this factual situation.

¶ 58     MR. PENNEY:  I understand that, Your Honour.  I thank Your Honour for all your patience, and I thank my friend as well, it has been a long, long matter for both of us.

¶ 59     MS ESSON:  Oh, Your Honour, I forgot.

¶ 60     THE COURT:  Oh, yes.

¶ 61     MS ESSON:  The forfeiture.

¶ 62     THE COURT:  Forfeiture, there is no question, is there, under s. 327.1(b) is it?

¶ 63     MS ESSON:  Yes.

¶ 64     THE COURT:  An order of forfeiture to Her Majesty the Queen of the item that was, the items that were seized.

¶ 65     MR. PENNEY:  Yes.  Excluding some personal papers and immigration documents, which they will get directly from the officers-in-charge.

¶ 66     THE COURT:  Is that a problem, Ms Esson?

¶ 67     MS ESSON:  No.

¶ 68     THE COURT:  No.  All right.  Yes.  Thank you.

¶ 69     MR. PENNEY:  Thank you, Your Honour.

¶ 70     THE COURT:  Okay. Thanks.

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