Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 08 17 COURT FILE No.: Toronto (Metro East) 4810 998 21 35001499

BETWEEN:

HIS MAJESTY THE KING

— AND —

SANDY BENYAMIN

Before: Justice R. Wright

Heard on: June 19, 2023 Reasons for Sentence released on: August 17, 2023

Counsel: P. Rutherford, counsel for the Crown W. Deck, counsel for the defendant Sandy Benyamin

R. Wright J.:

[1] Following a trial, I found Sandy Benyamin guilty of criminal harassment on his sister-in-law, Andrea Cheung. This harassment took place between April 4 and 6, 2021, and included 30 phone calls to Ms. Cheung’s business, Julianna Social, many nonsensical posts to the business’ social media, and six new customer request messages. In general, the content of these communications included wording that demeaned Ms. Cheung’s business, harmed her reputation, tied the business to mafia or criminal organizations, suggested that it was a front for illegal activities, threatened protests, and threatened consequences for Ms. Cheung’s husband, Mr. Oraha.

[2] This represents Mr. Benyamin’s fourth conviction for criminal harassment. The Crown submits that a fit and appropriate sentence for this offence and this offender is 12-months jail followed by 12-months Probation. The Crown also seeks a DNA Order for this secondary-designated offence.

[3] The Defence agrees that a custodial sentence is necessary but submits the sentence should be served conditionally in the community. Appropriately, the defence submits that the conditional sentence should be longer than that proposed by the Crown if it is to be served conditionally. The Probation Order is not opposed. The DNA Order is.

Facts

[4] Mr. Benyamin and his brother Mr. Oraha have a contentious relationship. In the past, Mr. Benyamin has made threats to the daughter of Mr. Oraha and Ms. Cheung. It is in the context of this long and difficult family history that the harassment of Ms. Cheung occurred, and after repeated requests that Mr. Benyamin not have any contact with their family.

[5] I found Mr. Benyamin guilty of conduct that included harassing phone calls and messages between April 4 and 6, 2021. The phone records, which were filed at trial, demonstrate more than 100 further calls to Ms. Cheung’s business from April 7 to April 16, 2021. The phone records also show more than 50 calls to a second business associated with Ms. Cheung’s family, Charlie’s Meats, between February 1 and the end of March 2021. The Crown asks that I consider the additional calls on sentence. I agree with the Crown that these phone calls have also been proven to have been made by Mr. Benyamin beyond a reasonable doubt: the phone records and Mr. Benyamin’s emails to police, in which he acknowledged the same phone number, along with the new client messages referencing that same number and his name, prove the phone number as his beyond a reasonable doubt. I found at trial that Mr. Benyamin posted Facebook messages to Juliana Social, phoned Juliana Social, and sent the new client messages that reference both his phone number and name and contain similar content as the phone messages and his emails to Detective Cechetto. I considered and rejected the suggestion that someone else may have used Mr. Benyamin’s phone or somehow “spoofed” or used his phone number. I found these alternate inferences speculative. I found that all of the forms of communication were from Mr. Benyamin’s phone number or referencing his phone number and name and containing the same content related to his brother. In my view the only available inference was that they were all sent by Mr. Benyamin, and this finding equally applies to the phone calls to Charlie’s Meats and Juliana Social between February and April and after April 7.

[6] Mr. Benyamin’s calls and messages harassed Ms. Cheung. She was annoyed and frustrated by his communication. She knew that he was also communicating to other family members and to Charlie’s Meats. She shut down her business Facebook page, had to stop answering calls at the business that were from a private number, and eventually contacted police on more than one occasion.

[7] There was a significant volume of calls and messages sent at various hours of the day and night. There are 30 phone calls between 21:54 hrs on April 5, 2021, and 20:49 hrs on April 6, 2021, alone. Some of these were minutes apart. Some only seconds apart. The content, timing and the volume of these communications were significant and harassing to Ms. Cheung.

[8] I accept that Mr. Benyamin had Mr. Oraha in mind as the primary recipient of his communications, but his conduct harassed Ms. Cheung and caused her to reasonably fear for her safety and her family. It is his harassment of Ms. Cheung that I must sentence him for today.

Victim Impact Statements

[9] I have one impact statement, from Ms. Cheung. She has described the fear she felt for her family’s safety and the anxiety that came from not knowing what Mr. Benyamin might do next. This took a toll, understandably, on her marriage. She had to close down social media for her business and stop answering phone calls. This led to lost income for the café, which also had its reputation damaged by the content of the posts.

[10] It is clear that the most significant impact on her was the fear that he would appear in person and harm her or her family.

Offender

[11] Mr. Benyamin is 43-years old. He has a prior criminal record with entries between 2015 and 2017:

(1) Dec. 18, 2015: two counts of failing to comply with a recognizance for which the passing of sentence was suspended and he was placed on a one-year Probation Order;

(2) Also Dec. 18, 2015: criminal harassment for which four days of pre-sentence custody were noted and the passing of sentence suspended, and he was placed on a one-year Probation Order;

(3) May 3, 2016: criminal harassment and attempt to obstruct justice for which 129 days of pre-sentence custody were noted and he was sentenced to 51 days jail and a three-year Probation Order. I note that it appears these offences would have been committed while he was on probation and suspension of sentence from 2015;

(4) July 5, 2017: criminal harassment and disobey court order for which he was sentenced to 30 days and a two-year Probation Order on the criminal harassment, and 15-days jail consecutive and a two-year Probation Order on the disobey court order count.

[12] I have read the Pre-Sentence Report. The Report details Mr. Benyamin’s financial difficulties due to his gambling. It also provides further detail of his difficult relationship with Mr. Oraha. Mr. Benyamin has been residing with a cousin, who he would continue to reside with if a conditional sentence is imposed. Mr. Benyamin does not have employment in Canada. He has travelled to China frequently and may have some business pursuits there.

[13] It is of concern that Mr. Benyamin did not express any remorse for his actions to the author of the Report and blames the victim for “this misunderstanding.”

Principles

[14] Section 718 of the Criminal Code directs me to impose a just sanction that will achieve the objectives set out in that section, which include denunciation, deterrence, rehabilitation, the separation of offenders from society (where necessary), making reparations, and to promote a sense of responsibility in offenders and acknowledge the harm they have caused to the victim and society.

[15] Our Court of Appeal has recognized the seriousness of criminal harassment in decisions such as R. v. Bates, [2000] 134 OAC 156. At para. 31, Moldaver and Feldman JJ.A quoted from Bruce MacFarlane’s article "People Who Stalk" (1997) 31:1 U.B.C. Law Review 37, about the fear that is caused by criminally harassing behaviour:

Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker’s behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.

[16] The Court also noted the reason for the creation of the offence in 1993 at para. 37 as enacted due to:

… a growing concern manifested in this country and elsewhere about people who stalk their victims with escalating intensity, in many cases leading to violence… the purpose of the new section was to criminalize the threatening behaviour and to permit punishment of offenders in an attempt to restrain their behaviour before it escalates to physical violence against the victims.

[17] As adopted by the Court in Bates at paras. 38 and 48, the focus of sentencing for criminal harassment must be to strongly denounce this conduct, generally deter others from committing these types of offences, and specifically deter the offender from committing this crime again.

[18] As to a Conditional Sentence Order (“CSO”), a CSO is available if there is no minimum punishment prescribed, the offence does not fall into limited specific offences (which these offences do not), I impose a sentence of less than two years, and it would not endanger the safety of the community and is consistent with sentencing principles/purposes (ss. 718-718.2 of the Criminal Code). Only the latter two questions are at issue in this sentencing hearing: would a CSO endanger the safety of the community and is a CSO consistent with the sentencing principles/purposes set out in the Code?

Sentence

[19] There is little, in my view, that is mitigating. I note Mr. Benyamin’s prior response to community supervision, in which he engaged with treatment for anger management counseling. I note also his compliance with judicial interim release conditions for more than two years. Those are the only mitigating features before me. He has not demonstrated any remorse; that is absent before me as a mitigating factor.

[20] It is aggravating that Mr. Benyamin ignored repeated direction to stop contacting Ms. Cheung or any members of Mr. Oraha’s family. His three prior convictions for criminal harassment are another aggravating feature.

[21] I acknowledge that there is a difference in the facts here than in cases such as Bates, where the victim was a domestic partner. Those cases have that additional statutorily aggravating feature that they are abuse of an intimate partner or family member (see s. 718.2(a)(ii) of the Criminal Code). While Ms. Cheung is Mr. Benyamin’s sister-in-law, and a part of his extended family, this is not the type of familial relationship that is deemed aggravating by that section. And there is the unusual fact here that Ms. Cheung was not the primary target of Mr. Benyamin’s communications, although she was the person who was criminally harassed by them. I state these facts in order to assist with properly characterizing Mr. Benyamin’s conduct. It does not in any way excuse his conduct.

[22] Considering the aggravating and mitigating features before me, the principles of sentencing at play, and bearing in mind the principles of restraint and totality, I am satisfied that a fit sentence for Mr. Benyamin is nine-months jail. That duration of sentence represents an appropriate step up from his prior sentences and reflects the unusual circumstances of this case.

[23] I do not believe that a CSO would be consistent with the fundamental purposes and principles of sentencing, nor do I believe that it would not endanger the safety of the community.

[24] There is a strong likelihood that Mr. Benyamin will offend again based on his record and his lack of remorse and insight into his behaviour. The non-criminal harassment convictions on his record are all crimes against the administration of justice; three for breaches of Court Orders and one for attempting to obstruct justice. On this record, I cannot find that a CSO would not endanger the public.

[25] Further, I do not believe that a CSO achieves the necessary objectives of deterrence and denunciation. Mr. Benyamin has three prior convictions for the same offence, two of which resulted in the imposition of a jail sentence and those sentences do not appear to have specifically deterred him. In my view, a longer jail sentence or “a step up” is necessary to specifically deter Mr. Benyamin. Denunciation of this fourth offence would also not be met with the imposition of a CSO. As Lamer C.J. noted in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), at para. 106, “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” Given the aggravating features here, and in particular the related criminal record, this is one such case.

[26] I impose a jail sentence of nine-months. The jail sentence will be followed by a two-year Probation Order, the conditions of which are:

(1) Keep the peace and be of good behaviour;

(2) Appear before the court when required to do so by the court;

(3) Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation;

(4) Report to Probation within two business days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;

(5) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with: Andrea Cheung, Selwan Oraha or any of their children EXCEPT in the presence of or through legal counsel;

(6) Do not be within 250 metres of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be EXCEPT for required court attendances;

(7) Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person);

(8) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;

(9) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and,

(10) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[27] Criminal harassment is a secondary-designated offence for purposes of the DNA provisions of the Criminal Code. Given the application that has been made by the Crown, I have considered a number of factors, including:

(1) Mr. Benyamin’s prior criminal record;

(2) The charge is criminal harassment, although it did not involve any allegation of in-person communication;

(3) The impact that this order would have on his privacy and security, keeping in mind that his expectation of privacy is diminished now that he has been found guilty of a criminal offence;

(4) That I am not aware of any factors that would cause a DNA order to be more than minimally intrusive to the security of his person;

(5) The important interests that are served by the DNA databank, including the protection of society that can be achieved through the early detection, arrest and conviction of offenders and the deterrence of potential repeat offenders; and,

(6) The submissions of his counsel that it would be a significant intrusion on his privacy, and that there were no issues of identity in the case before me.

[28] Having considered all of these factors, I am satisfied that it is in the best interests of the administration of justice to allow the application. I order that Mr. Benyamin provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[29] The Victim Fine Surcharge in this case is $100. Given the jail sentence imposed, I will give him two years to pay.

Released: August 17, 2023. Signed: Justice R. Wright