Ontario Court of Justice

Date: 2018-07-12

Court File No.: Central East - Newmarket 4911-998-17-06883

Between:

Her Majesty the Queen

— and —

Mordecai Gal

Before: Justice P.N. Bourque

Reasons for Sentence

Released on July 12, 2018

Counsel:

• M. Rumble for the Crown
• M. C. Zeeh for the Defendant

BOURQUE J.:

Overview

[1] The defendant was found guilty of two breaches of his recognizance arising from one event, namely being at a hotel overnight. The defendant did not testify at trial.

Criminal Record

[2] The defendant has a previous record for another breach of recognizance. He received a conditional discharge.

Pre-Trial Custody

[3] The defendant spent three days in pre-trial custody. I give him an enhanced credit at 1.5 to one of 5 days.

Personal Circumstances

[4] A pre-sentence report was filed. The defendant is 30 years of age. He was born in Iran and came to Canada with his family in 1997. His parents separated and he was brought up with his mother. The report indicates that the father was a philanderer and abused alcohol. The defendant's sisters lived with his father. The father was however an engineer and that is the career path that this defendant wishes to follow.

[5] He has completed his university education (University of Toronto) and is now working for an engineering firm in order to get his required "hours" so that he can complete his certification and become a professional engineer.

[6] He is now living with his eldest sister and mother. His sister is a successful businesswoman. He has made contact with his father and sees him occasionally. He does not drink and has no issues with drugs.

Position of the Parties

[7] With regard to sentence, the Crown is seeking a period of 30 days in custody on each count, to be served concurrently.

[8] The defence is seeking a conditional discharge with a period of probation.

Analysis

[9] Section 718 of the Criminal Code sets out my duties on arriving at a just and fit sentence.

718 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 have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[10] The offence of a breach of recognizance is in these circumstances, largely an offence against the administration of justice. While not having a specific victim, it is not a "victimless crime". The provision of bail and the necessity of people on bail to abide by the terms thereof is at the heart of our system of pre-trial release. The curtailing of one's freedom in limited ways is much preferable to any accused rather than waiting in custody for the trial to take place.

[11] The maximum sentence for these offences is 6 months imprisonment. There is no minimum sentence.

[12] A further discharge (with one already on his record) is not precluded.

[13] The Crown argues (properly) that this is a second offence, that it occurred very shortly after the commission of the other breach, and the defendant does not get the benefit of a guilty plea.

Employment and Professional Prospects

[14] The defendant is presently employed by an engineering firm and is getting sufficient hours so he can qualify to obtain his accreditation as a P.Eng, or a professional engineer. He states that this job would be in jeopardy with a conviction registered.

[15] He also states that his future as a professional engineer is also in jeopardy. Filed as an exhibit is a letter from Steven Haddock who is employed by the Professional Engineers of Ontario as an Enforcement and Advisory Officer, Regulatory Compliance. He quotes s. 14(1)(e) of the Professional Engineers Act where it states that engineer applicants for registration must be of "good character".

[16] He further states that while a conviction for a criminal offence is not a total bar to admission, it does shift the burden onto the applicant to show that he is of good character. Without a conviction (including a discharge where the terms have been completed successfully), the defendant is entitled to a presumption of good character. In addition, if he has a conviction, while it is not absolutely essential, it is most helpful to him in meeting his burden, that he has obtained a criminal record suspension. As per the present legislation, he could not apply for such a record suspension for many years.

[17] In his book on Sentencing, Ruby, C. makes the point at par 5.244:

Loss of employment…is always serious, and must be considered as part of the circumstances in which penalty is being imposed.

At par 5.245 the author goes on to state:

Loss of employment is a frequent result of criminal conviction for persons in every walk of life...such as…professionals. The possibility of future loss of employment may be taken into account.

At par 5.246 he continues:

Professionals who will be expelled by their governing bodies are treated similarly, although in the case of more serious crimes, the effect will be limited.

[18] In R. v. Charania, 2014 ONSC 1695, the court considered (on appeal) a request for a conditional discharge for a defendant who was a registered nurse and the evidence presented "support(ed) the appellant's collateral consequences and his significant personal circumstances in countenancing an opportunity to have the offender gainfully re-employed in his chosen profession and contributing to his family and society-at large" (para. 36). The court found in all the circumstances that a conditional discharge was not contrary to the public interest after a finding of guilt after a trial for the offence of Mischief to Data and Unauthorized Use of a Computer.

Conclusion

[19] I do not wish to be seen to reducing in any way the seriousness of these offences, nor the manner in which they were committed. It is not uncommon for breaches of recognizance to result in terms of imprisonment, especially where an accused has engaged in previous conduct.

[20] I do find that the potential loss to a young man's (or woman's) career prospects (especially when they are so far along the path to completion) is a significant factor which I believe, the community at large would recognize, and thus would be open to a consideration of a discharge provision. I also take into account that this defendant has spent the equivalent of 5 days in custody for these offences.

[21] It is clearly in this man's interest that he be granted a discharge.

[22] Based on the foregoing I find that it is not against the public interest for this man to be granted a discharge for these offences.

[23] I therefore, concurrently on both offences, grant him a discharge. Terms include probation for two years, a reporting condition, counselling as required, and community service.

Released: July 12, 2018

Signed: "Justice P.N. Bourque"