COURT FILE NO.: 08-A11097

DATE: 2012-11-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.K.

Riad Tallim, for the Crown

Alan D. Gold, for the Accused

Sentencing Decision

Justice L. Ratushny

[1] At the conclusion of a judge and jury trial on June 6, 2011, A.K. was found guilty of five offences involving three victims:

1. Extortion of Y.K. on April 29, 2007: that A.K. did, by threats, without reasonable justification or excuse and with intent to obtain money, induce Y.K. to pay money to A.K., contrary to s. 346 (1.1) of the Criminal Code;

2. Criminal harassment of Y.K. between April 29, 2007 and May 31, 2007, contrary to s. 264(3) of the Criminal Code;

3. Extortion of F.P. on February 4, 2008: that A.K. did, by threats, without reasonable justification or excuse and with intent to obtain money, induce F.P. to pay money to Z[…] Market, contrary to s. 346(1.1) of the Criminal Code;

4. Criminal harassment of F.P. between February 4, 2008 and February 28, 2008, contrary to s. 264(3) of the Criminal Code;

5. Attempted extortion of A.K. between February 4, 2008 and February 12, 2008: that A.K. did attempt to by threats, without reasonable justification or excuse and with intent to obtain money, induce A.K. to pay money to A.K., contrary to s. 463(a) of the Criminal Code.

[2] Mr. A.K. was acquitted of charges of criminal harassment of A.K. and attempted extortion of L.W.. The jury was unable to come to a verdict on the remaining two charges: possession of stolen property belonging to Y.K. and possession of stolen property of F.P..

[3] Mr. A.K.’s sentencing hearing was delayed until September 4, 2012 because Brennan J., the trial judge, became unable to continue the proceedings shortly after the jury’s verdicts were delivered. Pursuant to s. 669.2 of the Criminal Code, the proceedings were continued before me. I have read all of the trial transcripts for this continuation and sentencing.

1. SUMMARY OF THE EVIDENCE BEFORE THE JURY RELEVANT TO EACH FINDING OF GUILT

[4] A.K. is the owner and operator of a series of twenty-four hour convenience stores in Ottawa called Z[…] Market. His wife, N.V., also participates in these businesses. The original indictment contained sixteen charges, some of them also against N.V.. During the trial the Crown filed a replacement indictment alleging nine offences against A.K., some also including N.V..

[5] The jury heard testimony from a total of eleven witnesses, nine of behalf of the prosecution: the three complainants Y.K., F.P. and A.K.; F.P.’s wife L.W. and her brother A.W.; two bank employees in respect of the charges involving the complainant F.P., and two police officers. There were two defence witnesses: M.Z. and S.D.. A.K. and N.V. did not testify.

[6] The jury acquitted N.V. of all charges against her and found A.K. guilty of the five offences referred to above.

[7] While I have read all of the trial transcripts, I only summarize evidence heard by the jury that is relevant to these five offences.

A) Extortion and Criminal Harassment of Y.K., April 29 - May 31, 2007 (counts 1 and 3)

[8] The following summary is from the testimony of Y.K..

[9] Y.K. was a university student and 24 years of age in 2007. He was born in Iran, an only child and came to Canada in 2004 to go to university. His parents stayed in Iran.

[10] Y.K. worked for A.K. for nine months between June/July 2006 and April 29, 2007. He worked at three Z[…] Market stores for $6.00 an hour and was paid in cash, although he had asked to be paid by cheque so as to have proof of income to help his credit rating. His last three to four pays were by cheque. On about ten occasions over the nine months he was employed by A.K. his salary was paid late.

[11] He testified how the cash register at each store was fully monitored by cameras, speakers and accounting procedures and that on one occasion A.K. had phoned from somewhere else and asked him not to play his music as he had been doing while working at that store.

[12] In late March 2007 he told A.K. he had obtained a job with Research In Motion and would be leaving by the end of April 2007. He worked for A.K. in early April 2007 and then was unexpectedly called by A.K. to work on April 28, 2007. He was surprised by this call as he was leaving in two days. He told A.K. he did not want to work but A.K. told him he should and, as he had not been paid for the last four of his shifts, he agreed and thought his pay would be waiting for him. He told A.K. of his expectation and A.K. said yes.

The Extortion

[13] On April 28, 2007, Y.K. was working. His pay was not there. A.K. arrived and Y.K. asked him if he was going to pay him his wages and A.K. said yes and left. Y.K.’s shift was 3-11 p.m. Around 10 p.m. while Y.K. was performing his accounting procedures for the end of a shift, he concluded that A.K. was not going to pay him and so he took $300.00 cash, less than what he was owed for wages, and left a note for A.K. saying that he had done this. He put the $300.00 in his pocket. He left the note on the edge of the cash register and he knew it had a camera pointed at it. He was leaving the next day for Waterloo and his Research In Motion job.

[14] Approximately 15-30 minutes later A.K. ran into the store and said he had seen Y.K. take $300.00 from him. A.K. took his phone and told Y.K. he was calling 911. They were speaking in Farsee. Customers were in the store. Y.K. said he was afraid and took the $300.00 out of his pocket and put it on the counter and left it there in front of A.K.. A.K. then told him he had one opportunity to get out of this and that one opportunity was to confess as to how much money Y.K. had been stealing from him and this money that Y.K. is stealing from him has to be reasonable. A.K. then grabbed a calculator and demanded Y.K. pay him about $50,000.00. Y.K. thought that A.K. was also speaking to police during this time.

[15] A.K. told Y.K. to write down that Y.K. had been stealing from him. Y.K. wrote in English, “I took $300” and “I have to give $50,000”. He said he deliberately wrote those words reflecting what had actually happened and not that he had stolen any money. A.K. then put Y.K.’s fingerprint on the piece of paper where he had written these words. Y.K. told A.K. he had no money. A.K. asked him how much he had available and told him that if he complied and paid, nothing was going to happen to him.

[16] The next day, April 29, 2007, Y.K. delivered three cheques of $2000.00 each to the store. An employee, Mr. S.D., called A.K. about these cheques and A.K. called Y.K. and told him to change one of them to a $50,000 amount. Y.K. complied.

The Criminal Harassment

[17] On Tuesday, May 1, 2007 when Y.K. was in Waterloo at his new job, A.K. called him and told Y.K. to provide him with $5000.00 by Thursday. Y.K. did not have this money but he called friends and one friend borrowed close to $5000.00 for him. Y.K. has a bank record showing the transfer of $5000.00 to A.K. on May 2, 2007.

[18] After that transfer, A.K. phoned Y.K. and said he to pay another $6000.00. Y.K. travelled to Ottawa one to two weeks later and went to see A.K. in his Z[…] Market office. Y.K. told him he could not pay any more until he had repaid the friend who had loaned him the $5000.00. A.K. insisted and Y.K. then gave him twelve post-dated cheques for $500.00 each, payable to A.K. personally.

[19] A.K. phoned Y.K. at the end of May 2007 and said to him “you guys are all thieves” and, “right now I want the $40,000.00”. Y.K. told him he didn’t have this amount and A.K. said, “Give me your parents’ address in Iran. I have connections in Iran” and told him, as he had before, that he was a former member of the Iranian Revolutionary Guard. Y.K. hung up on A.K. and subsequently changed his phone number.

[20] A.K. had told Y.K. earlier that he had been a member of the Iranian Revolutionary Guard. Y.K. knew they were a “pretty scary force…with their own prison, their own system” and said they can do whatever they want to do. Y.K. was very afraid for the well being of his family in Iran.

[21] After A.K. called him in February 2008 to say that A.K. had also been accusing him and F.P. with stealing, Y.K. travelled to Ottawa and went to police. He said he learned from them that what A.K. had done was illegal and is called extortion. By this time nine of his twelve post-dated cheques had been cashed. He cancelled the last three.

[22] Y.K. has never been paid his last wages by A.K.. He denies stealing any money from A.K.. The $300.00 he had initially taken for unpaid wages he had left in the store on that same day.

B) Extortion and Criminal Harassment of F.P., February 4 - 28, 2008 (counts 5 and 4)

[23] The following summary is from the testimony of F.P., two TD Bank employees and L.W., the wife of F.P..

[24] In 2005 when F.P. was 35 years of age, he came to Canada from Iran on a student visa. He had money coming to him from Iran because he owned a home there that he was renting out and later sold in 2007. These proceeds amounted to a total of approximately $120,000.00. His parents and friends from Iran looked after conveying this money to him in Canada at different times and in different amounts. By February 2008 he had received about $90,000.00 of the $120,000.00 and these funds were in three GICs at the TD Bank.

[25] He married L.W. in 2006. She studied to become a registered nurse. She was a Canadian citizen and sponsored him in his application to become a permanent resident. F.P. was granted his permanent residency status three years after he applied.

[26] F.P. started working for A.K. at the end of 2005 and worked for him until February 2008, a total of about three years. In August or September 2007 he became the manager at the E[…] Street store. In December 2007 he became the manager at another of the stores and then was returned as the manager at the E[…] Street store.

[27] He gave detailed testimony of the security and accounting procedures in place at each store, including “shift-off” and “shift-on” procedures and computer printouts and cameras that he knew allowed A.K. to have remote access to his stores from his office and his home. He remembered A.K. calling him at 1 a.m. during one shift and telling him to stand up from his chair and start mopping the floor and dust or, to not talk on the phone when that was what he had just been doing. He said that if the accounting reconciliations at the shift-off or shift-on indicated a shortage of an amount over $5.00, he would always call A.K. to tell him of that. During his employment with A.K. he said there was never a time that the reconciliation was short of hundreds of dollars. F.P. also spoke of a microphone and speaker that A.K. had in each store allowing A.K. to hear what was going on.

[28] A.K. had placed controls on store procedures. F.P. said he would never pay for supplies delivered without first confirming it with A.K. and obtaining an invoice from the supplier. He never went into the stores’ ATM machines without first obtaining A.K.’s permission. He said it was impossible to serve a customer with the cash register drawer open and A.K. had told F.P. that it was against the law to leave that drawer open or to work with it open. He knew that A.K. could and did, from his separate office computer or from home, view the cash register screen at each store as well as the rest of the store premises. All store reconciliations were sent to or picked up by A.K. and by February 2008 these were done automatically and electronically and sent to A.K. at his office.

[29] F.P. was always paid his wages in cash by A.K. and signed a receipt in A.K.’s office on Rideau Street. He asked to be paid by cheque and had a social insurance number and a work permit, however, A.K. told him to wait until he became an immigrant to be paid by cheque when the government would pay part of his wages. A few times A.K. paid him at the store when he asked for payment. Other times A.K. authorized F.P. over the phone to take his wages from the safe drop and then F.P. would write this down on his shift’s paperwork sheet.

[30] F.P. never received a T4 from A.K. for his wages and F.P. never paid any income tax on those wages.

[31] A.K. had told him that he had been the head of the Revolutionary Guard in some part of Tehran.

[32] Before February 4, 2008 there had been no complaint from A.K. about his work over the three years.

The Extortion

[33] At the start of his shift on Monday, February 4, 2008, F.P. had confirmed that the reconciliations from the weekend, when he had not been working, were accurate. They had gone electronically to A.K. at his head office, as usual. A.K. came into the store around 9 a.m., took the cash as usual and said, before he left, that a certain employee had been stealing from him and he wanted to fire him so that if that employee came into the store, F.P. was not to let him in. A.K. left and F.P. continued working. He then noticed an orange safe-drop envelope on top of the computer tower for the cash register. He saw money inside and counted that it contained $380.00. He had never had this occur before. There was no paperwork accounting for this amount. He called A.K. about this around 9:30 a.m. and A.K. told him to put the envelope in front of the camera and then put it back where it had been.

[34] At 2:30 p.m. on the same day, A.K. came back to the store. He was very angry. He screamed at F.P. in Farsee: “You steal this money from me”. F.P. denied this. After the last customer had left, A.K. locked the store door and screamed that he was going to call police and “you’ll be deported…I know lots of people back home… will put you in jail and your parents and your father gonna have heart attack”.

[35] F.P. said he was afraid for his parents. He thought A.K. had called 911 as he had his phone at his ear. F.P. agreed to whatever A.K. asked of him even though it was not true and agreed he had stolen money from A.K.. He said A.K. told him about Y.K., who now “has his own life”. A police car happened to be parked outside the store at the time. A.K. told F.P. that if he asked them, those police were going to come in and arrest him, take him to jail and he would be deported to Iran and put in jail there.

[36] A.K. told F.P. to come to his office and “write it down”. F.P. said he was too scared to talk to the police. In Iran, he said, the police were always corrupted and F.P. had already confessed to A.K.. At the office, A.K. told him not to be scared and that his target was A.K., another store manager whom F.P. knew. A.K. said A.K. was a big thief and if F.P. testified against him, A.K. would let F.P. go. A.K. showed F.P. the $50,000.00 cheque from Y.K..

[37] While F.P. was in A.K.’s office with a big screen to which all the stores’ cameras were connected, F.P. wrote that he had taken $15,000.00 from A.K.. A.K. told F.P. to change the amount to $35,000.00, which he did. F.P. wrote in Farsee. Then A.K. insisted they immediately go to F.P.’s bank together and said F.P. had to give him money, as he needs money.

[38] At that time, F.P. had three GICs in a total sum of about $60,000.00, and $5000.00 in a chequing account, all at the TD Bank. A.K. told F.P. that if he didn’t have $20,000.00 deposited in his own account by the end of the day he would be unable to buy cigarettes for the stores.

[39] At F.P.’s bank and in the presence of A.K., F.P. cashed a GIC and gave A.K. a certified cheque from it for $20,000.00. When the TD Bank teller told F.P. there was $5000.00 in his chequing account, A.K. could hear this and insisted on receiving that amount which F.P. did give him, by way of another certified cheque. A.K. then asked F.P. to request his bank statements for the last six months, which he did, and by the end of the day on February 4, 2008, A.K. was in possession of all of F.P.’s bank statements. A.K. told him that all the cash deposits in F.P.’s bank statements, beginning in 2005, were monies from his stores and he said, “There is more that you stole”.

[40] A TD Bank video shows F.P. with the teller and being together with A.K.. F.P. said February 4, 2008 was the only time he was ever in a bank with A.K.. The bank teller testified and confirmed F.P.’s evidence and said that the man with F.P. was very persistent.

[41] Before F.P. left the bank to take the bus home on the evening of February 4, 2008, A.K. told him he had to bring in $15,000.00 tomorrow or otherwise A.K. was going to call the police.

[42] L.W., F.P.’s wife, testified that on February 4, 2008, F.P. had not picked her up after her examination as they had arranged. This had never happened before. When her husband arrived home that evening he was crying and upset. He told her what had happened.

The Criminal Harassment

[43] The next day, February 5, 2008, F.P. went to cash another of his GICs from the same teller and requested a certified cheque for $8500.00 payable to Z[…] Market. The bank manager of the TD Bank where F.P. and A.K. had attended testified and confirmed F.P.’s evidence regarding the first GIC that he had cashed on February 4, 2008. She remembered that F.P. had come back by himself the next day on February 5, 2008 and had asked to cash out a second GIC.

[44] F.P. took the $8500 certified cheque to A.K. that same day, on February 5, 2008. A.K. was very angry that it was not for $15,000.00 as he had directed the previous day. He told F.P. to go and borrow from F.P.’s aunt whom he knew lived in Ottawa.

[45] F.P. said A.K. had told him he believed F.P. had stolen more than $35,000.00 and that the only way A.K. would leave him alone was to testify that the other employee A.K. was also stealing. On February 5, 2008 A.K. then directed him to write a second confession, which he did, under the first confession. The first confession was in Farsee. The second was in English and he wrote, “All money that is deposited in my account is from Z[…] Market and it’s about $90,000.00 or more”. “And I promise to give it back as soon as possible.” When asked at trial why he wrote that he said, because “I was stupid. I believe whatever he says”.

[46] Before he left on February 5, 2008 A.K. told F.P. he wanted another $6500.00 the next day. By then, F.P. had turned over a total of $33,500.00 to A.K..

[47] On February 6, 2008 A.K. called F.P. every half hour about bringing him money or he would call police. In one message he said he had already called police. In another voicemail message A.K. said, “F.P. I left you a message. If you don’t call me back quickly I will have to call the police”. On February 15, 2008 a similar message was received.

[48] L.W., F.P.’s wife, confirmed that A.K. started calling everyday wanting money. She said A.K. was saying pay him money or he would call police and immigration. She became angry. She kept his voicemail messages and gave them to police.

[49] She went to see A.K. at his office. A.K. told her that Y.K. had done the same thing and so now he was paying $500.00 a month and “he is free”. A.K. told her F.P. could do the same thing and pay $1500 a month and their car can be put under Z[…] Market’s name by noon. When L.W. offered A.K. her jewellry, he said, “No, this is not what I want. I want you to go and get a line of credit and any money that you have….bring to me”. L.W. said it was then that she realized there was no end to A.K. wanting money from them. She told A.K. to do whatever he wanted to do. She left the store.

[50] F.P. said A.K. had also directed him to get a line of credit and hand over his car to Z[…] Market in addition to getting money from his aunt. A.K. told him he needed money.

[51] On February 10, 2008 F.P. gave A.K. a cheque for $3500.00, to keep A.K. quiet he said. By this time the total amount he had given to A.K. was $37,000.00. On February 8, 2008 F.P. had also borrowed $12,000.00 from his aunt, however he ended up giving this back to his aunt at the end of February 2008, after he had gone to police.

[52] F.P. said he believed at the time he was handing over all this money to A.K. that if A.K. called the police on him his life was done, he would be deported, in Iran he would be arrested and there, the Revolutionary Guard can do anything to you with no reason, as the whole system is corrupted.

[53] F.P. said none of his confessions were true.

[54] On February 12, 2008, F.P. spoke to the police.

C) Attempted Extortion of A.K., February 4 - 12, 2008 (count 8)

[55] The following summary is from the testimony of A.K..

[56] A.K. came to Canada from Iran in 2000 when he was 25 years of age, as a landed immigrant. His sister was already living in Canada. He left his parents and brother in Iran. He brought $15,000.00 with him to Canada. His parents are wealthy, he said, so that in Canada, money was not an issue for him and his father would send him whatever he needed every couple of months, averaging between $20,000.00 and $30,000.00 a year.

[57] He began by taking an English as a Second Language course at Algonquin College in Ottawa and started a pizza store with a friend that eventually had to be closed, as he and his partner were inexperienced and the business did not do well.

[58] He went on to a collection of other part-time employments including with Z[…] Market where he started in October 2004 when he was about 29 years of age. He became a manager in September-October 2005. He would sometimes also fill in as cashier.

[59] He is gay and “out of the closet” in Canada. He said there are no problems for him in Canada in this respect, however, this is not the case in Iran and there, his sexual orientation was undisclosed and remains undisclosed.

[60] He had trained Y.K. at Z[…] Market stores but had not socialized with him. He knew Y.K. had left to go to Waterloo in April 2007 but he had been unable to reach him there when he had tried, as Y.K.’s phone number had changed. He had also trained F.P. at Z[…] Market stores but neither did he ever socialize with him.

[61] No one from Z[…] Market had ever spoken to him about any wrongdoings on his part before A.K. made allegations against him on February 4, 2008.

[62] He also confirmed the shift-on and shift-off accounting procedures at Z[…] Market stores, the daily reconciliations to keep all the business in order and that if the store was ever over or under more than $5.00, A.K. had to be called. He said A.K. picked up all the paperwork each day.

[63] He said there was never a problem with employees leaving the cash drawer open in the store.

[64] He confirmed that all the stores had cameras and often A.K. would call from his office via the store microphone or would phone him about what he was seeing and hearing via the cameras. He said the cash register’s computer monitor was connected to A.K.’s office.

[65] On one occasion in 2007 when he was working at the store he heard A.K. call Y.K., asking Y.K. for $40,000.00. He heard A.K. say, “If you don’t give me $40,000.00 I’m going to get it from your family back home and I’m going to make problem for them back home because I work for the Revolutionary Guard and I have friends back home. And we can get the money from them, from your family”. A.K. then said to A.K. after the phone call with Y.K., “This guy is crazy, he is going to kill himself” and instructed him not to answer the phone if Y.K. called back.

[66] After A.K.’s April 2007 call to Y.K., A.K. said A.K. would say that someone was stealing money from him and that person is going to go to jail. During this time, A.K. was managing three Z[…] Market stores, was responsible for the daily reconciliations and there was nothing showing up to suggest any theft was occurring.

[67] In December 2006 and January 2007 while A.K. and his family were in Iran, Mr. S.D. was the main person then in charge and he entrusted A.K. with the making of bank deposits.

[68] By February 2008, A.K. had started making notes on the advice of a regular customer who was also a lawyer and who had overheard A.K. saying to nightshift staff that A.K. was accusing him of taking money.

The Attempted Extortion

[69] On February 4, 2008, A.K. came to the store and said to A.K., “You are stealing money from me…the people are stealing money from me…they’re going to go to jail”. Then A.K. asked what A.K.’s partner, a male, did for a living, what his sister did for a living, his home address and his licence plate number. This was the first time he had ever accused A.K. of stealing in the almost 4 years he had been working for A.K..

[70] A.K. denied the allegations and said he had never stolen money. He said A.K. knew he was homosexual and on that same day, February 4, 2008, A.K. told him, “We have to return the gays back home to Iran to be hanged there”. A.K. said he was nervous and stressed.

[71] After February 4, 2008, A.K. learned certain information that caused him to see a lawyer for advice. After that appointment, he knew he could call police about A.K.’s allegations but, instead, he started recording A.K.’s voice during his accusations. In one of them A.K. said he was going to get $40,000.00 from A.K.’s family and then ten times more. A.K. said he was very stressed. He said he learned from the lawyer what extortion was in North America.

[72] A.K. said the Revolutionary Guard in Iran arrest people, torture them and make them confess for what they didn’t do.

[73] On February 11, 2008, A.K. came into the store around 2:10 p.m. and asked A.K. to write down his licence plate number, home address and cell phone company’s name. A.K. refused. A.K. replied that if he didn’t give him that information he would not get paid. A.K. was already owed for the last month of wages. A.K. was also asking information about A.K.’s partner. He said if he didn’t get the information, A.K. was going to be in trouble and that thieves don’t provide information. When A.K. refused all the requests and told him he could go through a lawyer, A.K. replied that “thieves, they bring lawyers”.

[74] Also on February 11, 2008, A.K. told A.K. that F.P. had robbed him of $100,000.00 and F.P. was in jail and A.K. was next. A.K. phoned F.P. afterwards as he was worried about him, but F.P. didn’t call him back.

[75] On February 12, 2008 A.K. went back to work because, as he said, he was not doing anything wrong. A.K. knew he was working and did not direct him not to work. A.K. was at the end of his shift when he learned A.K. was coming to talk to him. A.K. went outside the store. A.K. approached him and asked him to come to his van to talk. A.K. refused. A.K. then asked him to go inside the store to talk. A.K. refused.

[76] They remained on E[…] Street outside the H[…] Market store, conversing in Persian. A.K. started swearing at him and said, “Give me my money, it was $40,000.00 and today it has changed to $700,000.00”. He showed F.P.’s confession and bank statements to A.K. and said he had given A.K.’s name to Canada Tax and the RCMP and the papers proved he is stealing money.

[77] N.V. joined the conversation and they told him he was stealing and asked him to go to the bank and get them his bank statements. N.V. told A.K. to call F.P. and ask him if he was stealing and she said, “He’s not going to answer your phone because we scare him so much even he’s not answering our phones”. The two of them kept saying to A.K. that he had stolen money and “better to do a confession with us and better to deal with us. And we make fair payment. You pay monthly to us”.

[78] The confrontation lasted twenty to thirty minutes. A.K. said February 12, 2008 was the worst day of his life.

[79] On February 13, 2008 he returned to work at H[…] Market. Again, A.K. had not asked him not to work. He taped a conversation with A.K. where A.K. said, “If you help me/us…we will not get police involved” and “I’ll crush you like a mosquito” if A.K. refused to do a confession and start making payments.

[80] A.K. said he never witnessed F.P. stealing any money.

[81] On February 14, 2008 A.K. phoned F.P. who answered the phone. A.K. said he had been worried about F.P. because on February 12, 2008 A.K. had told him, during the confrontation on the street, that he had received $40,000.00 from F.P.. A.K. said F.P. and his wife were crying and unable to speak. A.K. called back and then went to their home. He said they didn’t trust him because he was still working for A.K. and all that happened was that F.P. gave him the phone number of the police officer he had already seen. A.K. called the police officer from F.P.’s home.

[82] A.K. said that before going to the police, he never discussed in detail with F.P. what had happened to him. A.K. also never spoke to Y.K. until after A.K. had gone to police in February 2008. It was only after he had gone to police that he spoke to Y.K. and all he said was that whatever had happened to Y.K. during April 2007, A.K. was doing the same thing to him and F.P., and that if Y.K. was willing to go to the police here was their number. That was the only conversation he ever had with Y.K. and he did not go into any detail at the time.

[83] On February 15, 2008, A.K. taped a phone call from A.K. where A.K. asked for A.K.’s bank statements and address.

[84] A.K. said that even though he was a Canadian citizen at the time of A.K.’s demands, he doesn’t know if there are rules that could allow him to be sent back to Iran. From the first day he began working for A.K., A.K. had been telling employees that he used to work for the Revolutionary Guard in Iran.

D) Testimony of Officer David Smith regarding a February 20, 2008 visit from A.K.

[85] Officer Smith is a member of the Ottawa Police Service and with the organized fraud unit when A.K. came into the office on February 20, 2008, a “walk-in” without an appointment, and asked to speak to an investigator.

[86] Officer Smith met with A.K. that day. A.K. gave him his history and said “I’m in debt because of my honesty”. A.K. said the month before he had borrowed $40,000.00 from friends and that an employee had admitted he had stolen money from the business. Officer Smith informed him that would be a theft and could be investigated but he should get his “ducks in a row”, his facts put in a coherent fashion with documents. The meeting lasted 59 minutes.

[87] He learned that A.K. was arrested on April 10, 2008.

E) Testimony of M.Z.

[88] M.Z. flew in from Iran to testify at the trial. He is 45 years of age. He works at the Atomic Energy Organization in Iran. He knew F.P. in Iran from their mandatory military service in 1989 and 1990. He received a visa to come to Canada to testify and said A.K. had paid for his airfare and his accommodations in Ottawa.

[89] He said he had last seen F.P. in October 2010 when F.P. had visited Iran. He said F.P. had admitted to him that he had been stealing from A.K. and so M.Z. phoned A.K. in Canada about this. He said A.K. told him he could record F.P.’s voice and his confessions, which he said he did, using his cell phone in his pocket. The recording was entered as an exhibit.

[90] At the end of his testimony he said he was trying to mediate some resolution between A.K. and F.P.. He agreed in cross-examination that the arrangement was that if F.P. would have testified at trial that he had stolen money and that Y.K. and A.K. were thieves, M.Z. would have cut a deal with A.K. to drop the civil suit he had commenced against F.P..

[91] It is reasonable to infer from the state of M.Z.’s testimony in chief and in cross-examination, from the jury’s verdicts and from their five guilty verdicts for A.K. that the jury did not accept M.Z.’s evidence as being of any assistance to the defence.

F) Testimony of S.D.

[92] S.D. is 53 years of age, born in Iran and was employed by Z[…] Market between 2003 and 2007.

[93] He said he came to the store one night at A.K.’s request and heard A.K. very calmly telling Y.K. what he had seen him do through the camera and Y.K. had agreed and apologized. A.K. had then told Y.K. to write it down or he would call police. He said A.K. never threatened Y.K. and he saw Y.K. return the next day with cheques and no one was pressuring him.

[94] S.D. confirmed he had made a refugee claim because he had been fired from the Iranian Embassy in Ottawa. His refugee claim was rejected. He has now been in Canada for 13 years and has a work permit and is in Canada as a “humanitarian and compassionate” applicant. He admitted he is subject to a removal order to be deported and after answering this question from the Crown, he told the Crown he was going to complain against him to the human rights.

[95] S.D. said he had trained F.P. and F.P.’s paperwork was always perfect and he never had reason to believe when he was working for A.K. that F.P. was stealing from A.K.. He did remember that Y.K.’s paperwork was not correct sometimes.

[96] He agreed, based on his knowledge of the amount of money generated at each shift at a H[…] Market store, that if someone were stealing $10,000.00 that would be a noticeable amount and there would be no income from that shift.

[97] It is reasonable to infer from S.D.’s testimony, from the jury’s verdicts and from their five guilty verdicts for A.K. that the jury did not accept his evidence as being of any assistance to the defence.

2. THE VICTIM IMPACT STATEMENTS

[98] Y.K. said he came to Canada as an international student and always thought Canada would be the safest place to start a new life, but that his experience with A.K. has drastically affected his life both emotionally and financially. He has been living in a state of fear and anxiety for the past four years and is seriously worried about his family’s safety in Iran. He said A.K. not only damaged his reputation in Ottawa by wrongfully calling him a thief but also drained his bank account and made him pay a great amount of money that could have been used for his education and to aid his parents. A.K. extorted a total amount of $9800.00 from him.

[99] F.P. has been hurt by A.K.’s actions in many ways. He has suffered from anxiety, nightmares, sleeping difficulties and had to take medication. He had suicidal thoughts. He has sought counseling. His relationship with his wife deteriorated and they separated. She too has suffered from anxiety attacks, insomnia and depression. He will never be able to return to Iran, as he does not feel safe going back there anymore. A.K. extorted a total amount of $37,000.00 from him.

[100] A.K. said that as a result of A.K.’s threats he remains afraid that someone is stalking him or will break into his house. His reputation amongst the Persian community in Ottawa has been severely ruined. He is no longer the happy, energetic person he once was and A.K.’s crimes have had a deep impact on him financially.

3. THE OFFENDER

[101] A.K. is 48 years of age. He was born in Iran. He came to Canada in 1987 and obtained his Canadian citizenship in 1996. He is married with two children, ages 7 and 8, and is the sole source of support for his family. He is very committed to his family. He is very devout and religious. He is involved in his community, the Association of Iranian Muslims in Ottawa, and with charitable work.

[102] He owns and operates four convenience stores in Ottawa, three of them under the Z[…] Market name. They are open 24 hours, 7 days a week and employ a total of twenty-five people. He created the Z[…] Market name and business model. His wife, N.V., helps him in the business in a secondary role. Employees have submitted letters of support to the Court, speaking highly of A.K..

[103] The impact of the criminal charges on the H[…] Market business has been swift. In 2008 Ontario Lotto suspended all of their sales from the stores. In 2011 OC Transpo cancelled the contract allowing H[…] Markets to sell OC bus tickets. The loss of these ticket sales and the corresponding decrease in customer traffic through the stores has substantially decreased profitability.

[104] A.K. has no prior criminal record.

4. POSITIONS OF COUNSEL AND KIENAPPLE ISSUES

[105] The defence requests a conditional sentence for the extortion and attempted extortion charges and submits that the two criminal harassment charges ought to be conditionally stayed in accordance with Kienapple principles: Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729) (S.C.C.) and R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480 (S.C.C.).

[106] The Crown requests a total sentence of 3 years incarceration and disagrees that any of the offences are “Kienappled” as they are separate transactions.

[107] Aside from stating their position on the Kienapple rule, neither counsel has argued the issue nor provided authorities.

[108] According to Kienapple at 748, an accused is not to be convicted of more than one offence arising out of the same matter or, to state it more narrowly as developed in Prince, the rule against multiple convictions applies if the same act of the accused grounds both charges.

[109] The Ontario Court of Appeal in R. v. R.K., 2005 21092 (ON CA), [2005] O.J. No. 2434, at para. 28, said the principle that has emerged from Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences and the other charges should be stayed.

At para. 39 of R.K., the Court’s analysis proceeds as follows,

[T]he crucial distinction for the purposes of the application of [the] Kienapple rule is between different wrongs and the same wrong committed in different ways. If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong.

[110] The Crown has structured the five charges as occurring on different dates: the extortion of Y.K. on April 29, 2007 and his being criminally harassed between April 29 and May 31, 2007; the extortion of F.P. on February 4, 2008 and his being criminally harassed between February 4 and February 28, 2008; the attempted extortion of A.K. between February 4 and February 12, 2008. There is no Kienapple issue with respect to the charge involving A.K..

[111] The offence of extortion is defined in s. 346(1) of the Criminal Code as follows,

Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

[112] Extortion is punishable by up to imprisonment for life.

[113] The offence of criminal harassment is defined in s. 264 of the Criminal Code as follows,

264. (1) Criminal harassment – No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

[114] The offence of criminal harassment, for the charge dates of 2007 and 2008, is punishable by a maximum of five years imprisonment.

[115] The offence of extortion required the Crown to prove beyond a reasonable doubt that A.K. made threats, accusations or menaces with the intent of obtaining money and had no reasonable justification or excuse.

[116] The offence of criminal harassment required the Crown to prove beyond a reasonable doubt that A.K. committed prohibited conduct without lawful authority and knowing that it caused the victims to fear for their safety or the safety of anyone known to them.

[117] For the extortion and criminal harassment charges involving Y.K. and F.P., the Crown might well have chosen to charge only in respect of the more serious offence of extortion by encompassing the entire of the applicable charge period for each victim. However, it chose not to charge in this way and that is a matter within its prosecutorial discretion.

[118] Accordingly, the extortion and harassment charges in the indictment do relate to different acts committed by A.K. against Y.K. and F.P. because they are committed on different dates. Whether the elements of each of the offences could be caught by the Kienapple rule is arguable but of no consequence, as it is the different charge dates for the different offences that operate to exclude the rule.

[119] It is for these reasons that I do not conditionally stay the criminal harassment charges.

5. ANALYSIS

[120] It is a fundamental principle of sentencing pursuant to s. 718.2 of the Criminal Code that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[121] Extortion and criminal harassment are defined very broadly in the Criminal Code and can, of course, occur in a wide variety of circumstances. The jurisprudence provided by counsel reflects this, especially for extortion offences where the sentences imposed range from a suspended sentence to conditional and penitentiary sentences.

[122] In order to be able to determine the gravity of A.K.’s offences and his degree of responsibility for them, it is necessary to measure his degree of moral culpability, his degree of moral blameworthiness, in all of the circumstances of the offences and in the context of his personal circumstances.

[123] Defence counsel characterizes A.K.’s offences as conduct that went beyond what was reasonable in terms of threats, given his reasonable belief that some people were stealing from him. Defence counsel submits that A.K.’s threats to go to police were hardly wrong in these circumstances and then he simply went too far. His reasonable belief behind his actions should absolve him of a substantial degree of blame.

[124] The problem with this characterization is that by its verdicts the jury has to be taken to have concluded on all of the evidence that the Crown had proved beyond a reasonable doubt the absence of any reasonable justification or excuse for the extortions and the absence of any lawful authority for the criminal harassments. Any speculation otherwise is impossible and impermissible for the purposes of sentencing and defence counsel does not disagree on this point.

[125] An additional problem with defence counsel’s position is that other than the allegations made by A.K. to the victims that they were thieves and the bizarre evidence from M.Z. of F.P.’s taped confession that was obviously accorded no weight by the jury, there was a complete absence of any trial evidence of reasonable justification or excuse or lawful authority. The defence did not offer any evidence of any theft from A.K.’s businesses. Of course, A.K. did not have to prove anything. That was for the Crown to do, and it did. It can be said that the Crown proved the absence of any theft. The jury by reason of its guilty verdicts has to be taken to have accepted the victims’ evidence that they were not thieves and that A.K.’s accusations that they were thieves was not reasonable justification, excuse or lawful authority for his crimes of extortion and harassment.

[126] The jury heard ample evidence to lead them to the conclusion that there had been no theft committed by any of the victims or by anyone else. They heard that A.K. had gone to the Ottawa Police on February 20, 2008 about alleged thefts and was advised to get his paperwork in order. They heard nothing further about that paperwork.

[127] The evidence was that A.K. ran a tightly controlled business, taking advantage of electronic monitoring and accounting procedures. He knew full well what was going on in his Z[…] Market stores. It was not possible for hundreds of dollars, thousands of dollars, or tens of thousands of dollars to be missing without the triggering of an immediate paper trail. It was reasonable for the jury to conclude, if they did, that there was no paper trail because there were no thefts.

[128] When Y.K. decided to pay himself for wages he was owed before he left for Waterloo, A.K. was immediately aware of this. He knew Y.K. wanted his wages before he left his last shift with Z[…] Market. It was one hour before the end of the shift when A.K. observed Y.K., presumably on the store camera, pocketing $300.00 and leaving a note that he had done so. Within the half hour A.K. arrived at the store and confronted Y.K. and the extortion started, even in the face of Y.K. immediately taking the money out of his pocket and leaving it on the counter.

[129] The Crown characterizes A.K.’s conduct as a cat and mouse game. This is an apt analogy. A.K. did pounce on this first act of wrongdoing by Y.K.. It is reasonable to conclude he set up Y.K. and then F.P.. He had not paid Y.K. and Y.K. handed him his first opportunity to pounce. It is also reasonable to conclude he created his opportunity with F.P.. It was clear from his treatment of Y.K. and it became clearer from his subsequent pattern of conduct with F.P. and A.K. that A.K. wanted to obtain a confession in writing from each of the victims. He wanted to use their confessions to build on them with the others and to be the beneficiary of endless amounts of money based on his false claims. He bolstered his demands with the menace of what could happen to them and their family in Iran if they did not comply.

[130] A.K.’s claims of theft and the amounts he demanded were absurd from the beginning and throughout the ten months he conducted his fear campaign against the victims. His witness, M.Z., was also absurd and it is evident from their verdicts that the jury rejected the evidence regarding F.P.’s confession to M.Z.. I agree with the Crown that M.Z. presented as a bizarre individual at trial.

[131] An added element of absurdity to the claim of theft is that A.K. continued to employ F.P. and A.K. after he had accused them of being thieves. That was because, I think it reasonable to conclude, there had been no thefts and he had not yet been able to get A.K. to capitulate to his threats.

[132] Part of A.K.’s pattern of extortion and criminal harassment against all three victims was to prey on them because of their particular vulnerabilities. He was aware of their vulnerabilities and he deliberately exploited them. The victims were all from Iran; they each knew about and feared the Iranian Revolutionary Guard; they each feared being sent back to Iran; they feared for family in Iran; they did not know if Ottawa police could help them or hurt them because in their experience police were corrupt in Iran and more importantly, their fear was more about what could happen in Iran than what could happen in Canada. A.K. knew all of this. He mentioned his past with the Revolutionary Guard. He threatened to call the police, the RCMP and Canadian immigration, unless they wanted “to have a life” in Canada by paying him off.

[133] A.K. acted ruthlessly. After getting off the phone with Y.K. in A.K.’s presence, he told A.K. that Y.K. was contemplating suicide. Later, he and his wife told A.K. they had scared F.P. so much that he wouldn’t answer his phone. These comments were recounted with amusement. It is fair to infer that A.K. had no concern for Y.K. or F.P.’s reactions to his threats. He wanted them to be afraid so that they remained in his control and would pay him money to keep him happy.

[134] There is no evidence that A.K. knew of F.P.’s previous relationship with M.Z. in Iran, but that factor greatly increased F.P.’s fear and, therefore, his vulnerability. If A.K. did know, then producing M.Z. for trial was a further indication of ruthlessness. For A.K., his sexual orientation added a very personal element to his fears and vulnerabilities. A.K. deliberately preyed on the fact of that sexual preference, telling A.K. that gays have to be returned back home to Iran to be hanged there.

[135] A.K. used his position of authority as the victims’ employer to make false accusations. Section 718.2(a)(iii) of the Criminal Code makes this a statutory aggravating circumstance. A.K. is also an active member of the Ottawa Iranian community. He is known as a successful businessman who can and has helped others. He used his stature as a successful business and in the community to belittle and control the victims. He told his community that A.K. was a thief. He drained F.P.’s bank account and the TD bank teller commented that A.K. was a persistent companion to F.P. that day. The video of that attendance bears this out.

[136] The Crown characterizes A.K.’s offences as calculated and intended to intimidate to gain advantage. The Crown submits that the intimidation and harassment have continued past the charge dates, by A.K.’s filing of civil claims against each of the three victims amounting to over one million eight hundred thousand dollars in total. In each of their victim impact statements the victims have spoken of the added burden of these civil claims.

[137] All of these circumstances make A.K.’s offences of extortion and harassment extremely serious and his moral culpability high. They serve to aggravate sentence. They require strong denunciation and general deterrence. Canada is a land of immigrants and refugees, some seeking shelter from oppressive regimes. Canada provides opportunities to its residents so that hard-working people regardless of their background can succeed with the support of Canada’s laws. Mr. A.K. used the opportunities provided and worked hard, but then turned his back on Canada’s system of rule of law and invoked that which he had left behind. He abused his position of authority. He abused the rights that Canada had accorded him to help him prosper. He committed crimes against three of his former countrymen by deliberately preying on their vulnerabilities. He continued this pattern of conduct for 10 months. He drained the bank accounts of two of the victims. He inflicted serious psychological trauma on all three.

[138] Denunciation and general deterrence need to be strongly reflected in his sentence so that others in his position of control and influence understand the consequences of this sort of conduct and are not tempted to take advantage of others more vulnerable by committing similar crimes.

[139] The circumstances of A.K.’s offences also require specific deterrence. He continues his false claims. I am not satisfied that he will not re-offend.

[140] There are mitigating circumstances. Mr. A.K. has no prior criminal record. At age 48, he is a first offender. He has had to endure an unfortunate delay to today’s date through no fault of his own due to the trial judge’s illness, inability to continue with sentencing and his subsequent retirement and the necessity of having all twenty-four volumes of trial transcripts prepared and read before the sentencing hearing could be scheduled. Delay falling short of a s. 11(b) Charter violation can be considered as a factor in mitigation of sentence (R. v. Bosley (1992), 1992 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.)) and I consider it as such. He has complied with his bail conditions for 3 years and 8 months, although there has been no claim that these were stringent conditions and as reminded in R. v. Lindsay, 2009 ONCA 532, [2009] O.J. No. 2700 (Ont. C.A.), at para. 45, it should not be forgotten that bail is the opposite of incarceration. While I decline to assign any credit for his bail compliance against the length of his incarceration, I do consider it as a mitigating circumstance. Additionally, Mr. A.K. has suffered substantial financial consequences, although it has to be mentioned that it is as a result of his infliction of serious financial losses on his victims.

[141] A.K.’s conduct is not the kind of extortion conduct seen in the cases referred to me by the defence resulting in conditional sentences, even though in some of those cases there were threats of violence, actual beatings and the presence of guns. I review a few of those cases.

[142] In R. v. Royz, 2008 ONCA 584, [2008] O.J. No. 3129 (Ont. C.A.), both the accused and the complainant had been involved in a scheme to defraud the government. After the court proceedings where the accused had pleaded guilty and the complainant had had her charges dropped, the accused tried to get the complainant to pay him not to publish his book about the scheme. The complainant was not threatened by the extortion and did not pay any money to the accused. In contrast, A.K.’s victims were afraid and scarred by his conduct against them and lost substantial sums of money to him.

[143] In R. v. Hazout, 2005 30050 (ON CA), [2005] O.J. No. 3550 (Ont. C.A.), two accused were convicted of kidnapping and extortion of the complainant in relation to money he owed to them. The accused exercised self-help in an effort to get the complainant to pay them. This was not a concoction of a false claim of criminality and a preying on vulnerabilities as for A.K..

[144] In R. v. Hassan, [2009] O.J. No. 2794 (Ont. S.C.J.), there are few facts in the decision to understand the basis for the conditional sentence except for a reference to an obsessive personal relationship and photos taken by the accused with the complainant’s consent and being used as “tools of coercion”.

[145] In R. v. Piamonte, [2006] O.J. No. 2814 (Ont. S.C.J.), the conditional sentence reflected the circumstances of an extortion that had been committed in the midst of other criminal activity being committed by both the accused and the complainants. The complainants had stolen the accused’s counterfeit money and the accused wanted it back. The accused was a sympathetic figure. He had pleaded guilty to twelve counts spanning four different timeframes and all involving serious criminal activity. The judge determined he was able to be rehabilitated of his criminal activity and drug addictions and gave him a conditional sentence.

[146] In R. v. Romolo, 2002 MBCA 66, [2002] M.J. No. 209 (Man C.A.), even though a gun was used the joint position from counsel had been for a conditional sentence where the accused had sold marijuana to the complainant and the complainant was overdue in paying for it. The Court of Appeal respected the joint position after reviewing all the circumstances including those of the accused and imposed a conditional sentence.

[147] By way of contrast to these cases, I am unable to conclude in all of A.K.’s circumstances that a sentence of less than two years, one of the necessary pre-requisites to the consideration of a conditional sentence, would adequately reflect the strong need for denunciation and deterrence of his crimes.

[148] The case of Lindsay, relied upon by the Crown, is instructive. There, the accused was convicted of extortion and extortion for the benefit of a criminal organization. He appealed his sentence of 4 years and 4 months imprisonment after deduction of a credit for presentence custody. His actual sentence was 6 years. The trial judge had regarded it as a factor that aggravated sentence pursuant to s. 718.2(a)(iv) of the Criminal Code that the extortion had been committed in association with a criminal organization. The accused had gone to the complainant’s home wearing his Hells Angels jacket with the Hells Angels logo on it, demanding payment of an alleged debt. He made no explicit reference to the Hells Angels in his conversations with the complainant. He simply wore the jacket he usually wore. The Court of Appeal found (para. 40), after taking into account the devastating effects of that threat of association on the victim, that the trial judge had not over-emphasized the statutory aggravating factor.

[149] In the present case there is no application of s. 718.2(a)(iv) of the Code. There is no evidence that the Iranian Revolutionary Guard is a criminal organization within the definition of that term in 467.1(1) of the Code. What the Lindsay case does underscore, however, is the seriously aggravating effect of a realistic menace of reprisal from an organization known to be lawless. When A.K. invoked the spectre of the Revolutionary Guard, he struck a chord of terror in the victims. As such it is a seriously aggravating factor.

[150] In all of the circumstances, A.K.’s degree of moral culpability is high, the aggravating circumstances substantially outweigh the mitigating, and I conclude that a penitentiary sentence is required.

[151] Mr. A.K., please stand at this time.

[152] I have determined your sentence is to be for a total of three years incarceration. This is the sentence requested by the Crown and after considering all of the circumstances and reviewing the jurisprudence as I have stated, I find I agree with the Crown’s request. I conclude that a 3 years sentence of incarceration is one that appropriately reflects the seriousness of your offences and takes into account the mitigating circumstances. But for your status as a first time offender and the delay you have had to deal with, I would have imposed a 4 years sentence of incarceration.

[153] I direct the allocation of your sentence between the five offences to be 3 years incarceration for each offence, concurrent. This allocation is intended to reflect my assessment of your high degree of moral culpability during your continued pattern of extortion and harassment over a period of 10 months.

[154] There are ancillary Orders that follow.

[155] The first is a DNA order requiring you to submit forthwith to the taking of a bodily sample for DNA analysis and data bank storage.

[156] The second is an Order under s. 109 of the Criminal Code in respect of the criminal harassment charges so that for a period of 10 years commencing upon your release from incarceration you are prohibited from possessing any firearm, ammunition or any other item referred to in that section.

[157] The third, fourth and fifth Orders are separate restitution orders under s. 738 of the Criminal Code, requiring you to pay in full within 30 days from today the amounts you owe each of the victims. The first restitution order is for the sum of $9800.00 to be paid to Y.K.. The second restitution order is for the sum of $37,000.00 to be paid to F.P.. The third restitution order is for the sum of $3552.59 to be paid to A.K..

The Hon. Madam Justice L. Ratushny

Released: November 13, 2012