ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR12-70000551-00

DATE: 20130906

B E T W E E N:

HER MAJESTY THE QUEEN

Derek Ishak for the Crown

• and -

MARK JOHNSTON

Mary Cremer for Mark Johnston

HEARD: August 27, 2013

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] On June 14, 2013, following a trial before me without a jury, I found Mark Johnston guilty of using a forged document, fraud over $5,000, and three counts of failing to comply with the conditions of a recognizance.

Circumstances of the Offences

[2] The detailed circumstances of the offences are set out in my Reasons for Judgment delivered on June 14, 2013. They can be summarized as follows.

[3] On March 23, 2011, Mr. Johnston checked into the Yonge Suites hotel never intending to pay his hotel bill. During his 56-day stay, the hotel accommodated his every whim, changing the light switches in the suite, upgrading the television and internet connections, purchasing furniture and barware that were more in keeping with his taste, and purchasing and delivering about $2,000 worth of wine to his room. Mr. Johnston amassed a hotel bill in the amount of $22,294.58. On May 2, 2011, Mr. Johnston gave the hotel a cheque in the amount of $20,168.43, which was ultimately discovered to be a forgery.

[4] At the time of his arrest on May 17, 2011, Mr. Johnston was subject to the conditions of a judicial interim release order. He was required by the conditions of that release to reside at 4025 Kilmer Road, Suite 107, Burlington; to refrain from operating a computer, and to keep the peace and be of good behaviour. Mr. Johnston was arrested residing at the Yonge Suites hotel. The hotel had upgraded Mr. Johnston’s internet connection at his request. Throughout his stay at the hotel, he communicated with hotel management by email, and police found a laptop computer and printer in his hotel suite when he was arrested.

Circumstances of the Offender

[5] Mr. Johnston is 48 years old. He was born and raised in Burlington, Ontario, where his mother and siblings still reside. He is a divorced man with two sons – a 16-year-old and a 22-year-old. He has a positive relationship with his ex-wife and his two children. He has a high school education, and prior to 1991, when he received his first prison sentence, he ran a student painting company and sold pianos. His counsel submits that he is an intelligent and capable individual.

[6] Mr. Johnston has a lengthy and related criminal record as follows.

1991-03-08
Toronto Ont
Fraud over $1000
Susp sent & probation 3 yrs

1991-09-16
Barrie Ont
(1) Fraud over $1000
(2) Fraud over $1000
(1) 2 yrs
(2) 1 yr consec

1994-02-01
London Ont
Fraud under $1000
$1000 I-D 6 mos

1998-03-02
Newmarket Ont
Fraud
Sec 380 (1) (15 chgs)
Susp sent & probation 2 yrs on each chg conc & restitution $15,760.10

1998-09-08
Toronto Ont
Fraud under $5000
Susp sent & probation 1 yr

2002-02-20
Newmarket Ont
(1) Driving with more than 80 mgs of alcohol in blood (2 chgs)
(2) Fail to comply with probation order
(1) 15 days on each chg conc (12 days pre-sentence custody) & proh driv 1 yr
(2) 15 days conc

2002-05-30
Toronto Ont
(1) Contravention of sec 327 Excise Act (169 chgs)
(2) Contravention of sec 327 Excise Act (130 chgs)
(3) Contravention of sec 327 Excise Act (20 chgs)
(4) Fail to comply with recognizance (2 chgs)
(5) Fail to appear
(6) Fraud over $5000 (5 chgs)
(7) Personation with intent
(8) Fraud under $5000

(1) 14 mos on each chg conc & 2 yrs pre-sentence custody & $336,000
(2) 16 mos on each chg conc but consec & $104,580
(3) 6 mos on each chg conc but consec & $28,000
(4-5) 6 mos on each chg conc & conc
(6-8) 1 yr on each chg conc & conc

2003-03-20
Kingston Ont
Escape Lawful Custody
Sec 145 (1)(a)
60 days consec to sent

2004-07-21
Statutory Release

2005-02-25
Statutory Release Violator
Recommitted

2008-03-28
Toronto Ont
Fraud over $5000
(3 chgs)
1 yr conditional sentence order on each chg conc

2008-07-28
Toronto Ont
(1) Breach of conditional sentence order
Sec 742.6 (9)(c)
(2) Fraud over $5000
(5 chgs)
(3) Fraud under $5000
(4) Uttering forged document
(4 chgs)
(5) Forgery
(6) Fail to comply with recognizance
(3 chgs)
(7) Personation with intent
(8) Poss of property obtained by crime under $5000

(1) Order suspended
(2-8) 2 yrs on each chg conc &18 mos pre-sentence custody

2010-02-16
Statutory Release

2010-10-08
Statutory Release Violator
Recommitted

2010-10-12
Statutory Release

2013-07-15
Toronto Ont
(1) Fraud over $5000
(2) Uttering forged document
16 mos & 26 mos pre-trial custody & 3 yrs probation & $34,000 restitution

[7] Mr. Johnston has been convicted on eight separate occasions of a total of 36 counts of fraud. His record also includes convictions for five counts of uttering, two counts of personation, 319 counts of contravening the Excise Act, one count of forgery, five counts of fail to comply with a recognizance, breach of a conditional sentence order, breach of probation, and fail to appear in court. He has twice violated his statutory release. He has been sentenced to penitentiary terms on four separate occasions for fraud and fraud-type offences. He is currently serving a sixteen-month sentence for fraud over $5,000 and uttering a forged document, which was imposed on July 15, 2013.

[8] I have summarized his record to emphasize the relentless nature of his fraudulent activity and his obvious disregard for court orders.

[9] There is a striking resemblance between the offences before this court and many of the offences on Mr. Johnston’s criminal record. The fraud convictions in 1994, 1998, 2002, 2008 and 2013 involved NSF cheques. The fail to comply convictions involved Mr. Johnston’s possession of a laptop computer and financial instruments that were not in his name, contrary to the conditions of a recognizance, as well as his failure to reside where required by a recognizance. Three weeks after he was placed on a conditional sentence order in 2008 for three counts of fraud over, he tried to check into a luxury hotel in Toronto with an American Express credit card. The conditional sentence order prohibited him from possessing credit cards.

Impact on Yonge Suites

[10] A victim impact statement prepared by Elisabeth Antonacci, the general manager of Yonge Suites, was filed. Ms. Antonacci indicated that she suffered from anxiety for some time following Mr. Johnston’s arrest. She feared that her job and professional reputation had been compromised by the fraud he committed on Yonge Suites. In addition, she suffered a $2,000 financial loss of income because her compensation is based on a percentage of the hotel’s revenue.

[11] Yonge Suites suffered a direct $22,294.58 financial loss from Mr. Johnston’s activity. In addition, its regular business activity was interrupted because its employees were required to manage Mr. Johnston’s demands and his eviction, and assist in the police investigation and prosecution.

Legal Parameters

[12] Fraud over $5,000 is punishable by a maximum sentence of fourteen years in prison. Using a forged document is punishable by a maximum sentence of ten years in prison. Failure to comply with the conditions of a recognizance is punishable on indictment by a maximum of two years in prison.

Positions of the Parties

[13] Mr. Ishak, on behalf of the Crown, submits that a prison term of between 4½ and 5 years consecutive to the sentence Mr. Johnston is now serving is a fit sentence for the fraud and uttering convictions, given the sophistication of the fraud and Mr. Johnston’s criminal record. A further six to twelve months consecutive is appropriate for the fail to comply convictions, according to Mr. Ishak, for a total sentence of between five and six years. In addition, Mr. Ishak seeks a restitution order in the amount of $22,294.58.

[14] Ms. Cremer, on behalf of Mr. Johnston, submits that a total prison term of between two and three years to be served concurrently with his current sentence is the fit disposition. She concedes that the sentences imposed for the fail to comply charges must be consecutive to the sentences imposed for the fraud and uttering offences. Ms. Cremer also submits that a restitution order is appropriate.

Principles of Sentencing

[15] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.

[16] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.

[17] Finally, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender. Where the magnitude, complexity, duration or degree of planning of the fraud committed was significant, the court must consider those circumstances as aggravating circumstances in determining the appropriate sentence: s. 380.1(1)(a).

Analysis

Concurrent vs. Consecutive Sentences

[18] I begin with the issue of whether the sentence I impose should be concurrent or consecutive to Mr. Johnston’s current sentence. A brief summary of the facts surrounding the offences for which he is currently serving a sentence is necessary to provide context for Ms. Cremer’s argument that I should impose a concurrent sentence.

[19] In July 2010, Mr. Johnston was on judicial interim release facing a number of charges. He wanted to retain the lawyer who had represented him at his bail hearing to conduct his preliminary hearing. The lawyer required $34,000 as a retainer. Mr. Johnston agreed. The lawyer believed that Mr. Johnston’s funds were held overseas. He gave Mr. Johnston his banking information to permit him to wire funds into his account. Mr. Johnston deposited a $17,000 cheque into the lawyer’s trust account on February 11, 2011. Over the next several weeks, a further four cheques, each in the amount of $17,000, were deposited into the lawyer’s account. All of the cheques were returned NSF. One of those cheques was found to be a forgery. It was drawn on the same financial institution, Caisse Centrale Desjardins, as the forged cheque Mr. Johnston gave to Ms. Antonacci in payment of his hotel bill. The lawyer last had contact with Mr. Johnston on March 16, 2011. Seven days later, he checked into the Yonge Suites.

[20] On July 15, 2013, Mr. Johnston was sentenced to 16 months in prison, after being credited for 26 months in pre-trial custody, for defrauding the lawyer of $34,000, and uttering a forged document.

[21] Ms. Cremer submits that the fraud committed on the lawyer and the fraud committed on Yonge Suites are inter-connected both in time and mode of commission and are really one series of events – a spree committed by Mr. Johnston. She relies on the following facts:

• both cases involve fraudulent cheques
• the forged cheque was drawn on the same bank, Caisse Centrale Desjardins
• the frauds occurred within one week of each other

[22] I do not accept that the two frauds Mr. Johnston perpetrated are part of a series of events. In my view, Mr. Johnston was simply moving on from one fraudulent scheme to the next. The first scheme was designed to obtain legal services by fraud and the second scheme was a brazen accommodation fraud. The offences were not committed within one week of each other. The fraudulent cheques were deposited into the lawyer’s account between February 11 and March 10, 2011. Mr. Johnston checked into the Yonge Suites on March 23. Although both crimes involve serious fraudulent activity, they are not inter-connected and should be treated as such for the purpose of sentencing.

[23] The general rule of sentencing is that consecutive sentences will be imposed for separate offences subject to the proportionality requirement set out in s. 718.1 of the Criminal Code. The sentences I impose must therefore be consecutive.

Aggravating and Mitigating Circumstances

[24] I turn now to consider the aggravating and mitigating circumstances.

[25] First the aggravating factors.

1. Mr. Johnston committed these offences while he was on judicial interim release for other crimes of dishonesty and was required to keep the peace and be of good behaviour.

2. Mr. Johnston’s deception and fraudulent behaviour continued over 56 days. The fraud was not an impulsive act.

3. It was motivated by greed. For 56 days, Mr. Johnston lived in luxury, having his every whim catered to.

4. It was not a simple fraud. It required forethought and planning. It required a multiplicity of deceptive acts. I found that Mr. Johnston pretended to be Mike Cirillo, the person who arranged the accommodation for Mr. Johnston at Yonge Suites with Ms. Antonacci. He masqueraded as a well-educated investment banker who was so vitally important to his company that he had an armed bodyguard. To perpetrate the fraud, he made use of fake business cards, fake companies and a fake web site that automatically directed the user to the web site of a genuine company. I also found that he produced the forged cheque he gave to Ms. Antonacci.

5. Mr. Johnston has a long criminal record for offences of the same nature. He has been been convicted of breaching court orders prohibiting him from possessing computers and requiring him to reside at a specified address – the precise conditions he has again breached. He appears to be an incorrigible fraudsman, moving from one scam to another until he is interrupted by a prison sentence.

[26] Very little can be said in mitigation for Mr. Johnston other than that he enjoys the support of his mother, siblings and children. There is no evidence before me to explain his persistent fraudulent behaviour. He has not accepted responsibility for these offences or indicated any remorse. He appears to be a committed recidivist.

Determination of a Fit Sentence

[27] In the circumstances of this case, the protection of the public, denunciation, and deterrence, both general and specific, are of paramount importance. Realistically, Mr. Johnston’s prospects for rehabilitation appear very dim. Notwithstanding this, rehabilitation cannot be abandoned altogether.

[28] Ms. Cremer referred me to a number of decisions in which sentences imposed for frauds in amounts between $21,000 and $140,000 ranged from nine months to three years in prison. A review of the decisions demonstrates that sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. It is always necessary to consider and apply all of the sentencing principles under the Criminal Code, having regard for the unique circumstances of the case.

[29] While it is appropriate that the sentences be consecutive to the one Mr. Johnston is currently serving, the totality of the sentence must be commensurate with the gravity of the offence committed and the moral blameworthiness of the offender: R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 40. I am mindful that although a $22,000 fraud is not insubstantial, it is not on as large a scale as some, and Mr. Johnston did not breach any position of trust or take advantage of any position he had in the community to commit it.

[30] Having considered the persistent nature of Mr. Johnston’s fraudulent activity as evidenced by his criminal record, the significant aggravating factors in this case and the absence of anything in mitigation, I have concluded that the appropriate total sentence is four years in prison to be served consecutively to the sentence Mr. Johnston is currently serving.

[31] On counts #1 and 2, Mr. Johnston will be sentenced to three years in prison on each count to run concurrently to each other but consecutively to the sentence he is currently serving.

[32] Mr. Johnston’s clear and continual disregard for court orders warrants a sentence of one year in prison on each of the fail to comply counts. On counts #3, 4, and 5, Mr. Johnston will be sentenced to one year in prison on each count to run concurrently to each other but consecutively to the sentence on counts #1 and 2, and consecutively to the sentence he is currently serving.

[33] Finally, Mr. Johnston will be ordered to pay restitution to Yonge Suites in the amount of $22,294.58.

Corrick J.

Released: September 9, 2013