IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused has pled guilty to fraudulently obtaining transportation from Air Canada contrary to Section 393(3) of the Criminal Code of Canada.  An agreed statement of facts has been filed.

[2]           The Accused is a commercial airline pilot for Cathay Dragon Airlines.  He is a Canadian citizen and a permanent resident of Hong Kong where he resides.

[3]           In 2012 and 2013, a company named Sensors Quality Management Inc. (“SQM”) operated a “mystery shopper” quality control program through which they provided clients with evaluations of their goods and services from anonymous shoppers.  SQM would offer selected shoppers with the opportunity to obtain partial or full refunds of the amounts paid for these services and goods in exchange for a completed written evaluation of the goods or services received.

[4]           One of SQM’s clients was Air Canada.  Air Canada provided SQM with promotional codes to be used for the “mystery shopper” program.  These codes were not to be provided to the “mystery shoppers”.  The mystery shoppers would book their flights through SQM and provide payment to SQM for the tickets.  SQM would provide the mystery shopper with an itinerary along with other documents including a flight agreement obligating the mystery shopper to complete and return an evaluation.  Upon receipt of full payment for the tickets and the completed flight agreement, SQM would obtain flight tickets from Air Canada for the mystery shopper using the promotion codes they had been supplied.  The tickets would then be sent directly to the mystery shopper by Air Canada.  Upon receipt of the mystery shopper’s completed evaluation form, SQM would refund 50% of the fare paid for the flight.

[5]           The Accused was able to obtain one of Air Canada’s promotion codes from Mr. Hunt who resided in Ontario.  Mr. Hunt was described as an “SQM insider”.  Instead of going through SQM, the Accused obtained first class air tickets by providing the promotion code he had obtained from Mr. Hunt directly to Air Canada.  He was able to do this without making any payment to SQM, without entering into a flight agreement and without completing and returning any evaluation.

[6]           Between March 18, 2013 and July 29, 2013, the Accused fraudulently used the promotion code he had obtained to book 4 trips for himself and his family involving some 13 individual flight legs, the total value of which was $22,739.82.  The Accused also assisted friends to obtain flights by fraudulently using the promotion code he had obtained.  The total value of all the flights fraudulently obtained was $35,996.95.  The Accused was also able to obtain frequent flyer miles as a result of these fraudulently obtained flights, the total value of which is $554.33.  The total loss claimed by Air Canada, as a result of Accused’s fraudulently obtained flights, is $36,551.27.

[7]           The Crown seeks a 6 month custodial sentence served in the community by way of a conditional sentence order followed by a probation order.  The Crown made no submissions as to the conditions it considered appropriate in either the conditional sentence order or the probation order.  The Crown did not make any submissions as to the length of the probation order.

[8]           The Defence seeks a conditional discharge but also has made no submissions as to the appropriate conditions nor have they made submissions as to the length of the probation order.

[9]           I have been presented with a large number of case authorities by both Crown and Defence.  They show a wide range of sentences that have been imposed, from conditional discharges to conditional sentence orders to lengthy periods of imprisonment.  Sentences for offences are often fact specific and depend on the circumstances of each offence and of each offender.

[10]        What I find striking about the case authorities presented to me in this case is that none of them involve sentences for the offence for which the Accused has pled guilty.  Not even one of them involves a sentence for fraudulently obtaining transportation contrary to Section 393(3) of the Criminal Code.

[11]        The Crown has directed the court to the case of R. v. Solowan, 2008 SCC 62 (CanLII), [2008] 3 R.C.S. 309, where Mr. Solowan appealed a sentence of 15 months imprisonment for 3 offences; 3 months for taking a motor vehicle without consent, 6 months for possession of stolen property and 6 months for failing to stop a motor vehicle while being pursued by police.  The latter 2 offences were hybrid offences upon which the Crown elected to proceed summarily.  Mr. Solowan’s argument was that, with respect to the hybrid offences, the trial judge had erred in imposing the maximum custodial sentence allowed by law without first finding that he was the worst offender who had committed the worst offence.

[12]        The Court dismissed Mr. Solowan’s appeal stating at paragraph 15:

[13]        In the case at bar, the cases that have been submitted to the Court all involve more serious offences with considerably higher maximum sentences than that in Section 393(3).  Most of them involve breaches of trust which is not a factor in the case at bar.  Many of them involve hybrid offences.  Section 393(3) is a straight summary conviction offence with a maximum sentence of 6 months imprisonment.  Many of the authorities provided involve offences under Section 380(1)(a), the offence the Crown initially charged the Accused with.  The Crown submitted that the fact that they proceeded summarily does not shift the appropriate range of sentence, and that “the range is the range”.

[14]        In my view, this is a flawed analogy and a misinterpretation of Solowan.  In swearing a new Information charging the Accused with an offence under Section 393(3) and not proceeding on the charge under Section 380(1)(a), the Crown was not simply electing to proceed summarily.  With a hybrid offence, the essential elements of the offence that the Crown needs to prove beyond a reasonable doubt do not change with the Crown’s election to proceed by indictment or by summary conviction.  The offence and the offending conduct is the same.  Only the manner in which the Crown has elected to proceed has changed.

[15]        That is a completely different situation from that in the case at bar where the Crown proceeded to charge and accept a plea to a completely different offence.  This offence under Section 393(3) is not one where the Crown could have proceeded by indictment.

[16]        Section 393(3) is an offence alleging fraudulently obtaining transportation.  In making this offence a straight summary conviction offence, it is clear that Parliament viewed this as a far less serious offence than the offence in Section 380(1)(a) where, if the subject matter exceeds $5,000.00, the offence is strictly indictable and a defendant is liable for a maximum sentence of 14 years.

[17]        The cases that have been presented to me in the case at bar are cases where the essential elements of much more serious offences have either been proven beyond a reasonable doubt after trial, or have been admitted by the accused by way of a guilty plea.  While those case authorities may be helpful in the consideration of mitigating and aggravating factors in cases involving fraudulent conduct, they are not as helpful for determining the range of sentences for this offence or for determining the fit and appropriate sentence for this offence, in these circumstances by this offender.

[18]        Absent any authority to the contrary, it is reasonable, in my view, to infer that the range of sentences for Section 393(3) would be lower than those for the more serious offences found in the case authorities that have been presented to the Court.

[19]        The Crown has submitted that a conditional sentence order of 6 months would adequately address the principle of parity as Mr. Hunt received a 9 month conditional sentence order for his frauds in Ontario, the total value of which exceeded $90,000.00.  However, Mr. Hunt was an SQM insider and his offences involved a breach of trust.  There is no breach of trust alleged in the case at bar.  Also, with a 9 month sentence, the charges for which Mr. Hunt was sentenced clearly could not have been offences under Section 393(3) which carries a 6 month maximum sentence.

[20]        There are a number of aggravating factors.  This was not a single instance of fraud or a single impulsive act.  These frauds took place over a period of some 4 months and involved 4 trips for the Accused and his family involving 13 individual flight legs, as well as flights purchased for friends.  The amount involved in these frauds is not insubstantial.  The sole motivation for these offences was greed.  The Accused used a fake name and fake address when filling out forms to perpetrate some of the frauds.  One of the friends the Accused had tried to assist with the use of the fraudulently obtained promotion code, Mr. Howard, advised the Air Canada investigator that he had paid the Accused $400.00 for booking his flight.

[21]        There are a number of mitigating factors.  The Accused has entered a guilty plea.  The Accused has indicated his remorse.  The Accused has, on his own initiative, undertaken counselling to try to gain insight into his offending behaviour.

[22]        The Accused has no prior criminal history and no outstanding matters before the courts.  The Accused is 42 years old and, but for this offence, has lived a productive, law-abiding life as a responsible member of his community.

[23]        The Accused’s former wife, Yolanda Balaberda, has written a reference letter for the Accused.  He has continued to be a good and supportive father to their two daughters since their separation and divorce.  It would appear from Ms. Balaberda’s letter that she and their 2 daughters continue to be financially dependent on the Accused.

[24]        The Accused and his current spouse, Elizabeth Hodges, have now separated and are in divorce proceedings.  Ms. Hodges has provided a reference letter for the Accused.  She and their son are also heavily dependent financially on the Accused who is continuing to provide both child and spousal support.

[25]        The Accused is also providing financial assistance to Suresh Gandhari, a street musician he befriended while on a work assignment in Nepal.  He has paid the school fees for Mr. Gandhari’s 3 children for the past 4 years.  According to Mr. Gandhari’s letter of reference, without that contribution from the Accused, Mr. Gandhari’s children would never have been able to continue with their education.

[26]        The Accused also has a number of reference letters from former employers testifying as to his excellent character and his willingness to volunteer to help others.  The Accused has provided other reference letters attesting to his good reputation in the community.

[27]        The Accused has already suffered damage to his reputation.  During the investigation of his fraudulent activities, the RCMP posted “wanted posters” for him on social media.  According to the Defence, a Google search of his name would generate a “wanted poster” for him.  The damage to the Accused’s reputation will endure on the internet long after this case has been resolved.  According to the Defence, this was a major factor in the disintegration of his marriage.

[28]        The Accused has provided full restitution.  On the day of submissions, Defence Counsel advised the Court that the Accused had provided a certified cheque in the amount of $6,000.00 payable to Air Canada and a signed assignment to Air Canada of the Accused’s $30,000.00 cash bail, which has now been filed with the Court.

[29]        The Defence has suggested that the Accused’s employment as a commercial airline pilot could be in jeopardy if he is convicted and sentenced.  They have pointed to question 34 on Transport Canada’s “Application for Transportation Security Clearance” which asks the applicant the following question:

[30]        The Defence submitted that, while an affirmative answer is not necessarily disqualifying, it would make a renewal problematic.

[31]        The next question on the questionnaire is:

[32]        The Crown submitted that this should have been answered in the affirmative for any renewals required by the Accused after the first information was sworn in 2015 but this had not caused him to lose employment.

[33]        I agree with the Crown submission that there is no evidence from the Accused’s current employer that a conviction would cause him to lose his job.  However, I also find it reasonable to infer that it is likely that a conviction would carry more risk and potential jeopardy for the Accused’s employment than an outstanding charge.

[34]        Offences involving fraudulent conduct generally raise the principle of general deterrence in sentencing.  However, in my view, the need for general deterrence is less pronounced for offences under Section 393(3).  The Crown has advised that most of the offences under this section involve taxi drivers victimized by passengers who fail or refuse to pay their fare.  While there are a number of aggravating factors in the case at bar, the most common aggravating factor for this particular offence - the fact that the victims of this offence are often members of a particularly vulnerable class deserving and needing the protection of the law - is not present here.

[35]        In my view, to the extent that denunciation and general deterrence is necessary to be addressed in this sentencing, that need has been satisfied by the damage the Accused has already suffered to his reputation, and will continue to suffer, as a result of “wanted posters” being circulated and remaining on social media.  These postings will endure and remain on the internet for the foreseeable future for the world to see and may well have a more general deterrent effect than a conditional sentence order.

[36]        I find that specific deterrence has been addressed by the shame the Accused, a person of otherwise good character with a hitherto good reputation in the community, has had brought upon himself, and by the stress of having risked his career and ability to continue to support the people he cares for, who depend on him financially.

[37]        The fact that full restitution has been made is, in my view, a strong mitigating factor.

[38]        After weighing and balancing all of the aggravating and mitigating circumstances, the circumstances of the offence and of the offender and after considering the case authorities and sentencing materials that have been presented to me, it is my view that a conditional discharge is appropriate.

[39]        Mr. Tacchi, please stand.  I find that it is in your best interests and not contrary to the public interest that you be discharged on the conditions prescribed in a probation order.  The probation order will be for a period of 6 months.  The conditions will be as follows:

[40]        There will be a stand-alone restitution order in the amount of $36,551.27 payable to Air Canada.