Court File and Parties

COURT FILE NO.: CR-16-10000150 DATE: 20170905 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Mark Christie

BEFORE: Justice E.M. Morgan

COUNSEL: D. Mitchell, for the Crown R. Chartier, for the Defendant

HEARD: June 30, 2017

Sentencing Judgment

[1] Mark Christie pled guilty to fraudulent use of a credit card, fraud over $5,000, possession of property obtained by crime, and failure to comply with the terms of probation.

[2] The offenses arose from a series of frauds perpetrated by Mr. Christie and a co-accused, Carlio Suarez, in which they obtained the actual banking information of various persons and produced false identification in those persons’ names in order to obtain credit facilities. The total amount earned by the two of them in this spree of frauds was somewhere over $200,000, of which $106,524.85 was Mr. Christie’s portion of the take.

[3] This is not Mr. Christie’s first offense. He is 51 years old, and his criminal record shows that over the years he has been convicted on 6 separate occasions for some 23 fraud and/or property offenses. The last of these convictions was in September 2012. Mr. Christie committed the present set of offenses while still on probation for the 2012 convictions.

[4] The Crown seeks a custodial sentence of 2 years less a day, plus 3 years’ probation. Crown counsel submits that with a criminal record the length of Mr. Christie’s record, deterrence of further crimes is an important goal.

[5] The Defense suggests a custodial sentence of 12 to 18 months. Defense counsel points out that the previous sentence imposed on Mr. Christie was an 18 month conditional sentence, and so 12 to 18 months in custody will be a jump up from what he received on his last conviction.

[6] The Crown also seeks forfeiture of Mr. Christie’s car, which was used in the commission of the present offences and which was seized and has been held by the Ministry of the Attorney General. Defense counsel indicates that although this creates a financial and logistical hardship for his spouse and family, Mr. Christie is not opposing the forfeiture of the vehicle.

[7] There are a number of mitigating factors which potentially work in Mr. Christie’s favour. In the first place, he entered a guilty plea at the outset of his trial. Although this did not spare the police an extensive investigation, and did not relieve the system of having to hold a preliminary inquiry, it did dispense with the need for a trial. The trial itself would have been a lengthy one – Crown counsel indicates that over 30 civilian witnesses and 7 police officers had been interviewed and were potentially involved.

[8] In addition, Mr. Christie’s family provides him with significant pro-social support. His mother and spouse are supportive and provide him with a stable family life. I understand that he is also very close with his young son, who he accompanies to lacrosse games and with whom he spends considerable time.

[9] Although the author of the Pre-Sentence Report that was submitted to me notes that Mr. Christie expressed no remorse over his activities, Mr. Christie specifically asked to make a statement at the sentencing hearing and indicated that he does indeed feel remorse for his conduct. He apologized to his mother and spouse and thanked them for their support, and apologized to the victims of his frauds for what he has put them through. He also thanked the Crown and the police for treating him fairly throughout this process.

[10] In terms of aggravating factors, credit card fraud and identification theft are serious offenses that take pre-meditation and sophistication. They are the type of modern financial crimes that society must strain to address. In addition, Mr. Christie has a long history of property and fraud-related offenses, and committed the present series of frauds while still on probation from his last round with the criminal justice system.

[11] I should point out that prior to his arrest for the present offences, Mr. Christie was employed steadily for 15 years by a bath fixture company. He has been under house arrest since that time, with strict terms that prevented him from working. Needless to say, this has created substantial financial hardship for his family. I am advised that his spouse has health problems that prevent her from working, and so his inability to earn an income during the 23 months of pre-trial house arrest has been a difficult burden for all of them.

[12] At the conclusion of the sentencing submissions, counsel for the Defense requested that any custodial sentence for Mr. Christie be timed to begin at the end of his son’s lacrosse season, which I am advised ends with the Labour Day weekend. Counsel for the Crown takes no objection to this request.

[13] Mr. Christie’s son is 12 years old and I understand that he plays the sport seriously and at a high level. In my view, it is very healthy for both father and son to have a close relationship and for it to be based on this kind of activity. Mr. Christie’s concern for his son’s athletic participation provides another mitigating factor to take into account in his sentencing. Accordingly, although I was prepared to pronounce sentence at the hearing of this matter at the end of June, I have adjourned the formal sentencing until today, which is just after Labour Day, in order to allow Mr. Christie to attend the lacrosse matches with his son over the course of the summer.

[14] In my view, there are enough mitigating factors to reduce the sentence somewhat from what counsel for the Crown suggests. On the other hand, Mr. Christie has a sufficiently long criminal record that there must be some considerable jump up from the last sentence he received. The task of the sentencing judge is to “balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community”: R. v. M. (C.), [1996] 1 S.C.R. 500, at 566.

[15] I understand that Mr. Christie’s co-accused in this series of frauds received a 21 month sentence, pursuant to a joint submission. While there are significant factual differences between Mr. Christie’s circumstances and those of his co-accused, it is noteworthy that Mr. Suarez received a custodial sentence that is in the middle of what the Crown and Defense respectively propose as a custodial sentence for Mr. Christie.

[16] In R. v. Lewers, [2012] O.J. No. 4554, at para 28, Trafford J. indicated that, “Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.” As indicated, Mr. Christie was under house arrest for 23 months, during which time he was unable to work to support his family. Given his close-knit family and the inability of his spouse to supplement their income due to her health issues, this was doubtless a stressful circumstance for Mr. Christie. Some account must be taken of this hardship. Under similar circumstances of a defendant who could not work to support his family due to the conditions of his house arrest, Trafford J. calculated a 0.4 reduction in custodial sentence, reducing a 28 month sentence by 11 months.

[17] Cronk JA observed in R. v. Dragos, 2012 ONCA 538, [2012] O.J. No. 3790, at para 84, that, “There is no set formulaic language or magic phraseology for taking cognizance of strict and lengthy bail terms as a mitigating factor on sentencing… They do not require a precise mathematical calculation of the credit to be given for pre-sentence bail… In the final analysis, the mitigating weight to be assigned to pre-sentence bail, if any, is a discretionary matter for the sentencing judge.” With this in mind, I would take account of the 23 months that Mr. Christie spent under strict house arrest, and reduce what would otherwise be a 21 month sentence by 9 months. This is close to, but not precisely the formula applied by Trafford J. in Lewers, and it appears to me to be appropriate to Mr. Christie’s circumstances. It brings his custodial sentence into line with what Defense counsel suggests would be appropriate.

[18] Taking into account the restrictive bail conditions which prevented him from working, I hereby sentence Mr. Christie to 12 months in custody followed by 3 years’ probation. There will also be a DNA Order as requested by the Crown, and a Forfeiture Order with respect to Mr. Christie’s vehicle.

[19] Further, there shall be a restitutionary Order against Mr. Christie in the amount of $106,524.85, matching the losses suffered by the several institutions that Mr. Christie and his co-accused defrauded.

[20] During the 3 years’ probationary period, the following terms shall apply. Mr. Christie shall

• keep the peace and be of good behavior;
• appear before the court when required to do so;
• report in person to a probation officer within 2 working days of his 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 his supervision;
• notify his probation officer of his address;
• notify his probation officer at least 48 hours in advance of any change of name or address;
• promptly notify his probation officer of any change in employment or occupation;
• not contact or communicate in an way, either directly or indirectly, by any physical, electronic or other means with Carlio Suarez;
• not possess any identification, card with a data strip or security chip, credit or debit card, credit or debit card data, a blank card with a magnetic strip, cheque, negotiable instrument or banking document, unless it has been lawfully issued in his name;
• not enter any Sears, Hudson’s Bay, People’s Jewelers, Mappins Jewelers, Charm Diamond Center, Michael Hill Jewelers or Cartier store in the Province of Ontario;
• attend for any counseling as directed by the probation officer and take any assessments as directed by the probation officer; and
• sign all releases required to allow the probation officer to monitor attendance and completion of any counseling or assessments.

Morgan, J. September 5, 2017