Charge: 42(1)(b) - Copyright Act x6
Counsel:
Counsel for the Federal Crown: Ms. L. Csele
Counsel for the accused: Mr. D. Paras
¶ 1 L. FAVRET J. (orally):— Mr. Benchmuel please stand sir. Based on the facts presented by Ms. Csele on behalf of the Department of Justice acknowledged on your behalf and on behalf of the numbered corporation by Mr. Paras with the exception with respect to the value of the goods that were sold by - at the kiosk there will be a finding of guilt against you on counts one, two and three and against the corporation on counts five, six and seven. Have a seat sir while I hear the submissions on sentencing.
¶ 2 MS. CSELE: Your Honour we have a joint submission for your consideration. That is a fine in the amount of $1,000.00 per count and also a jail sentence of six months to be served by Mr. Benchmuel in the community as a conditional sentence.
¶ 3 THE COURT: The fine against the numbered corporation on counts five, six and seven is $1,000.00 fine on each count and an order of forfeiture?
¶ 4 MS. CSELE: Yes I would ask that all items seized be forfeited to the Crown to be destroyed by the RCMP or a designate.
¶ 5 THE COURT: With respect to Mr. Benchmuel a conditional sentence of six months only or was there a fine for him as well?
¶ 6 MS. CSELE: There was a fine for him as well in the amount of $1,000.00 per count.
¶ 7 THE COURT: That is pursuant to the Copyright Act Section 42(1)(f) am I right? That provides that there can be a fine plus a term of imprisonment?
¶ 8 MS. CSELE: Yes.
¶ 9 THE COURT: If this is not a conditional sentence that was being proposed, what would be the straight custodial time that was being suggested?
¶ 10 MS. CSELE: I would propose a sentence in the range of three to four months straight time. This case is - while perhaps not the worse offender, it was a reasonably sophisticated operation. It wasn't an individual selling t-shirts out of the trunk of his car but in fact was able to fool the general public into thinking that they were purchasing at quite a reasonable price, I mean you couldn't have told either by where these things were being sold or by the price that they were not official garments. So having regard to all of the circumstances, Mr. Benchmuel does not have a record but that the operation was sophisticated and even if the amount of material was only going to make a profit of $45,000.00 for Mr. Benchmuel, the numbers that I read in earlier are the amounts that those companies would lose by virtue of having someone else distribute those items illegitimately.
¶ 11 THE COURT: Is the Crown's submission that the company wouldn't be in danger - sorry that the community wouldn't be endangered if Mr. Benchmuel served this sentence in the community?
¶ 12 MS. CSELE: I am satisfied, given what I have been told by my friend and he can fill you in on details of Mr. Benchmuel's background but I am given that he is not going to represent a danger to the public.
¶ 13 THE COURT: And that the principles of sentencing in Section 718 can be met by him serving the custodial term in the community?
¶ 14 MS. CSELE: Yes that is my position.
¶ 15 THE COURT: Anything else?
¶ 16 MS. CSELE: We did have the terms of the conditional sentence to set out for Your Honour.
¶ 17 THE COURT: All right. Can I have the form please? Can you hand the form to Mr. Paras and Ms. Csele too? The conditional sentence just so that they can read along. The owners of the copyright Ms. Csele do they need to be canvassed to learn the impact of this unlawful conduct on their businesses?
¶ 18 MS. CSELE: Those are the numbers that I provided to Your Honour. They have been canvassed and that would be the financial impact not to mention jobs lost when there is an underground economy it doesn't benefit the legitimate economy in fact it detracts from it so it is serious in that sense.
¶ 19 THE COURT: Is there a need to have further input from them by way of any statement?
¶ 20 MS. CSELE: I don't believe so.
¶ 21 THE COURT: So need for a victim impact statement?
¶ 22 MS. CSELE: No.
¶ 23 THE COURT: The Crown has canvassed the ...
¶ 24 MS. CSELE: Yes.
¶ 25 THE COURT: ... impact on the victim?
¶ 26 MS. CSELE: Yes I have.
¶ 27 THE COURT: Anything else the Crown would like to say?
¶ 28 MS. CSELE: Only with respect to the conditions of the conditional sentence.
¶ 29 THE COURT: Go ahead.
¶ 30 MS. CSELE: What we are proposing is for the first third of the conditional sentence that it be a house arrest situation.
¶ 31 THE COURT: Yes.
¶ 32 MS. CSELE: With the exception that Mr. Benchmuel ....
¶ 33 THE COURT: For employment?
¶ 34 MS. CSELE: Yes exceptions of employment, medical appointments, emergencies and religious services.
¶ 35 THE COURT: And does he need the period of time every week for the purpose of shopping for necessities?
¶ 36 MS. CSELE: I don't know.
¶ 37 THE COURT: You have got the form there?
¶ 38 MR. PARAS: We are looking at it - no not with regard to shopping for necessities.
¶ 39 THE COURT: He doesn't require that?
¶ 40 MR. PARAS: No.
¶ 41 THE COURT: So religious, medical appointments, employment and legal obligations with the conditional sentence order?
¶ 42 MR. PARAS: Yes.
¶ 43 THE COURT: All right are you content that the supervisor, once provided with a proposed schedule, by Mr. Benchmuel, work out the times?
¶ 44 MR. PARAS: Yes.
¶ 45 THE COURT: It seems to make sense to me.
¶ 46 MR. PARAS: Absolutely.
¶ 47 MS. CSELE: For the second ...
¶ 48 THE COURT: One other thing I am wondering is there any concern that if something should arise during - during the first - if Mr. Benchmuel has some need to be out of the home for some other reason, that the supervisor be canvassed and given the authority to permit him to be absent for any other reason deemed appropriate by the supervisor?
¶ 49 MS. CSELE: I am content.
¶ 50 MR. PARAS: That would be necessary yes.
¶ 51 THE COURT: Sorry and the next ...
¶ 52 MS. CSELE: The next condition would be house arrest - that he be in his place of residence between the hours of ...
¶ 53 THE COURT: So there would be a curfew only?
¶ 54 MS. CSELE: Yes.
¶ 55 THE COURT: Yes.
¶ 56 MS. CSELE: Between the hours of 10:30 p.m. to 6:30 a.m.
¶ 57 THE COURT: So it would be proposed that that would commence in March?
¶ 58 MS. CSELE: Yes.
¶ 59 THE COURT: What is the date in March - February - would that commence March 18th?
¶ 60 MS. CSELE: Yes.
¶ 61 THE COURT: Any other terms?
¶ 62 MS. CSELE: For the final two months just the statutory terms.
¶ 63 THE COURT: Anything else with respect to the conditional sentence order then?
¶ 64 MS. CSELE: Only that I would ask Your Honour to make an order of transfer of conditional sentence to the Province of Quebec. It is my understanding that Mr. Benchmuel is ordinarily resident in the Province of Quebec - defence counsel will provide you with his address - that is the reason for him serving the conditional sentence there.
¶ 65 THE COURT: I am just looking at the back of the form - is this - does the supervisor or probation office have to participate in the order of transfer?
¶ 66 MS. CSELE: I spoke to the probation officer ...
¶ 67 THE COURT: He can't fulfil it here, he doesn't reside here.
¶ 68 MS. CSELE: That's right and the procedure is apparently provided Your Honour makes the order then they will take the paperwork and the Newmarket office will contact the Quebec office.
¶ 69 THE COURT: All right but you will be processed today?
¶ 70 MS. CSELE: It is my understanding that you will be processed today.
¶ 71 MR. PARAS: This order is valid only also with the approval of the Attorney General of Canada which is who my friend is representing and we are dealing with Federal offences.
¶ 72 THE COURT: With a transfer.
¶ 73 MR. PARAS: With a transfer exactly.
¶ 74 MS. CSELE: Yes.
¶ 75 THE COURT: Right.
¶ 76 MS. CSELE: I will give my consent, approval.
¶ 77 THE COURT: Anything else from you Ms. Csele?
¶ 78 MS. CSELE: No I understand my friend is going to be asking for some time to pay the fine.
¶ 79 THE COURT: All right. Mr. Paras?
¶ 80 MR. PARAS: With regards to the fine we would require for the total amount of $6,000.00 to be paid over a period of twenty-four months.
¶ 81 THE COURT: Is there - I told you when we were having the pre-trial I was going to make some inquiries about that period of time. It does seem unduly lengthy and also having in mind the principles of sentencing that reparations are to be made and in part a fine is an indication - deals with all of the objectives to be met by sentencing, both denouncing, deterring and showing reparation to the community. Two years does seem lengthy. It is completely discretionary as I understand it - the length of time required to pay. Is there any reason I shouldn't order that it be paid within one year and that your client can then make application if it is not paid within one year, to extend that period of time if necessary. That allows him an opportunity if he hasn't paid it but just for the purpose of the public, it seems a little lengthy to - the 24 months being requested.
¶ 82 MR. PARAS: The only reason why 24 months is being suggested is after verification further to the last pre-trial conference that was scheduled. I verified with Mr. Benchmuel with regards to financial capacity for the company to be able to pay and him personally also and that is the reason why twenty-four months is being required. Mr. Benchmuel personally has obligations, he has a mortgage, he has a wife and kids to provide for. The company also is not doing as well as it had been doing in the past three, four years - the last year has been very hard with regards to accounts receivable and extending 90 to 120 day delay - alot of bad debts, alot of companies going into bankruptcy so the financial capacity of the company and him personally also required that the timeframe be met within twenty-four months. The only reason why we are asking twenty-four months is because of the lack of financial capacity to pay it all at once or within one year. We want to make sure that it gets paid and we don't have to come back and say you know we just can't do it right now. That is why twenty-four months is being asked in order to pay in equal and correlating instalments or as the Court deems appropriate.
¶ 83 THE COURT: All right what else would you like to say to me about the sentence?
¶ 84 MR. PARAS: With regard to Mr. Benchmuel and the company itself and I think it has been mentioned by my friend that is the first offence and that we are dealing with isolated cases, dealing from November and December 2003. The guilty plea being entered also in order to recognize what was done and to be able to serve the sentence and to - basically face the accusations and infractions that are being committed. Mr. Benchmuel is personally an outstanding member of his community, attends synagogue, religious services on a regular basis. He is married an the father of two children, has a business, Tosh Sportswear which is the trade name of the numbered company facing the accusations which also has a business of manufacturing, selling and distributing garments.
¶ 85 THE COURT: How many employees are there?
¶ 86 MR. PARAS: Five employees in total. It is mostly a family business where his father helps out as secretary and a brother and a cousin also helps out. It is not a big business, it is not a big company but it has been active for quite a few years and Mr. Benchmuel is the one that attends to the business activity with the company. I think as far as the sentencing the deterrent, the message being sent to the public serves the purpose through the conditional sentencing and the fine being paid by Mr. Benchmuel personally as the directing mind of the company and also from the corporate defendants respectively.
¶ 87 THE COURT: Where are his products distributed?
¶ 88 MR. PARAS: In Canada mostly in the Province of Quebec, Province of Ontario.
¶ 89 THE COURT: Can you help me understand the motivation in - that is behind this unlawful event?
¶ 90 MR. PARAS: Without sounding too cliche I think in the business of garments he is definitely the only one that does what he is being accused of. It is something ...
¶ 91 THE COURT: What has been admitted.
¶ 92 MR. PARAS: What has been admitted it is done on a regular basis where it is either the counterfeit material is either identical or modified in a certain way. The motivation was not to defraud or violate straight out the rights of the owners of the copyright but to run a business which I might add, putting aside the counterfeit items, alot of legitimate products are being manufactured and sold by the company Mr. Benchmuel runs.
¶ 93 THE COURT: And just dealing with the time to pay issue because I am really having a problem with that. I think I made that clear to you too. I am having a problem with the time to pay. Is there any reason why within a year if the fines weren't paid by that time your client couldn't contact the Department of Justice, let them know they need additional time, provide whatever documentation is required or to satisfy the Department of Justice that further time is required and then make an application presumably on consent, given what I have heard today, of the Department that further time is required to pay? I am just having some difficulty ...
¶ 94 MR. PARAS: With the twenty-four months?
¶ 95 THE COURT: Yes the public will look at this saying it is an '03 event and it is in relation to the retail value of legitimate goods, that the owners of the copyright have been out of pocket from not selling the goods themselves and I appreciate it is not the retail value that they would have sold it at and that is not representative of their profit but it just seems a lengthy period of time in order to address the offences before the Court and I appreciate Mr. Benchmuel is jointly submitted that he should serve a period of time in custody in the community but is there some reason why the fine itself that the corporation and he are paying that couldn't be addressed sooner?
¶ 96 MR. PARAS: If the possibility ...
¶ 97 THE COURT: I am just saying it doesn't look right to the public, that is my concern.
¶ 98 MR. PARAS: If the possibility of being able to - in the event that financial capacity changes or prohibits the company and him personally to pay it within a year, I think that would be acceptable, I would have no objection to that. However in order to pay the first, I don't know how you would want the fine to be paid. We definitely would request that within a year it be paid in certain instalments and also to obtain a delay for the initial payments.
¶ 99 THE COURT: Well what do you propose as a repayment of fine schedule then?
¶ 100 MR. PARAS: As of today I would require that the first payment of $1,000.00 would be paid within 90 days.
¶ 101 THE COURT: What I would propose - tell me what you think about this. Six months from today's date, $500.00 is to be paid on each count and one year from today's date the balance is to be paid on each account?
¶ 102 MR. PARAS: Okay, very well.
¶ 103 THE COURT: Maybe you can help me with this, normally the fine is paid to the Court office here so does your client understand that it is to be paid to the Clerk of the Court here at this Courthouse?
¶ 104 MR. PARAS: Yes.
¶ 105 THE COURT: Anything else? Sorry. Is it deposited here? Is the victim fine surcharge applied to Federal matters?
¶ 106 MS. CSELE: I don't believe it applies to this.
¶ 107 THE COURT: I don't either, just let me take a look. It doesn't apply. Mr. Benchmuel would you like to say anything to me with respect to the sentence that has been submitted by Mr. Paras and Ms. Csele on behalf of the Department of Justice? You are not required to say anything, you may if you wish to?
¶ 108 JACOB BENCHMUEL: That's fine.
¶ 109 THE COURT: Thank you. All right in deciding what a fit and appropriate sentence is Mr. - I am going to ask you to stand while I impose sentence. In deciding what the fit and appropriate sentence is in the circumstances. In addition to being guided by the relevant piece of legislation, the Copyright Act which sets out that the maximum custodial term and fine - the maximum custodial term for a summary election is six months and the maximum fine is $25,000.00 or both. The sentence that is being proposed, the custodial term is a - to be served in the community six months and I am taking into account that the Crown has told me and your counsel has agreed that the - if it were a straight custodial term the range of sentence would be in the range of three months. Ordinarily a conditional sentence and that is a custodial term served in the community is longer than the - a straight custodial term. I want you to know that and that is why just so you know - you are not the worst offender the Crown has told me. Normally the maximum period of a custodial term is something that is only imposed on the worst offender and it is agreed that neither you nor the corporation appearing before me through you, are the worse offenders in these circumstances. In deciding what a fit and appropriate sentence is I have en ensure that the sentence is one that meets the general purpose of sentencing which is to ensure respect for the law, maintenance of a just, peaceful and safe society which includes respect for the law obviously means including respect for the copyright of others. It is also to serve the following objectives, to denounce unlawful conduct, to deter the offender and others from committing offences and based on what I have heard from Mr. Paras about the industry here, it is important that the sentence being imposed is one that sends out a message to others who are involved in this industry that using copyright that belongs to others and selling their product is unacceptable and the sentence has to address that. There is no need in this instance, the - I should say in this instance the Crown is sufficiently concerned about the sophistication of the enterprise including the number of units that were manufactured and the number of copyrights that were infringed as well as the value of the goods and the fact that these were being sold out of your province, and the Province of Ontario. Just again showing the sophistication, nothing more than that.
¶ 110 The Crown has submitted and your counsel has concurred that it is appropriate for there to be a custodial term. The sentence is also one that should assist in rehabilitating offenders and I am satisfied that imposing a fine is a way in which you can and the corporation can feel the hardships that one should feel as a result of having used unlawful - rather infringed property and that that is a way of bringing home to you and rehabilitating both you and the corporation. It is to provide reparations for the harm done to victims and the community and the order of forfeiture deals with that issue. It is also to promote a sense of responsibility in the offenders and acknowledgment of harm done to victims and the community. By appearing before me on your own behalf today and by the corporation appearing before you, that is an acceptance of responsibility and being accountable for using the infringed property unlawfully and in doing so you have shown responsibility for the unlawful act.
¶ 111 You have also saved, by entering a plea of guilt, the administration of justice and the public considerable expense. This probably would have been a lengthy trial - I know Ms. Csele didn't tell me that but I am confident there would have been a need to hear from the owners of the copyright to prove the copyright, they would have had to have the purchasers of the copyright here - the infringed products here to prove the purchases made during the period of time - so you certainly have saved the public an expense of the trial which I take into account is a mitigating factor.
¶ 112 I also take into account who you are. I am supposed to consider that in deciding what the fit and appropriate sentence is. You are a person who has no criminal record. You are a mature person without a criminal record so that tells me that up until this point in time in your life you have been very productive, you have been a contributing member of society and as I understand from submissions of Mr. Paras you are going to continue to operate this business and it is a tough business obviously and in part the conditional sentence order that is being suggested allows you to continue to conduct that business and allows you to get on with your life as well which is an important part of the sentence that is to be imposed.
¶ 113 You have a family, you have a sense of responsibility in the community and you are involved in your community through your association with your church which is important as well. All of that shows that you are a stable member of the community and indeed there should be no reason and there is no reason why the Court can't impose a conditional sentence.
¶ 114 I am satisfied that imposing a conditional sentence that the pre-requisites in Section 742.1 of the Criminal Code are satisfied and the period of time is less than two years and you would not endanger the safety of the community and it is consistent with the principles of sentencing that I have just referred to you in Section 718 for you to serve a custodial term in the community.
¶ 115 Just speaking and imposing sentence, it is important to reflect on the nature of the offence. It is serious to take business away from others, it does encourage a third economy which causes people to lose their jobs, it takes money out of the pocket of others and these offences are also, it is important to acknowledge that these offences are offences which in some way defraud the community in some way and I appreciate it is not a fraud that you are not before me on but you have caused members of the public to believe that they are purchasing something that they are not really purchasing and they think they are getting a deal when they purchase it.
¶ 116 That is something that makes this a serious offence, in addition to the number of units and the location where they are being sold. I am satisfied that Ms. Csele has contacted the owners of the infringed work and that no victim impact statement is required. In all of the circumstances there has to be an error in law or an error in principle not to accept the joint submission made by counsel. I accept the submission made by counsel is a fit and appropriate sentence.
¶ 117 With respect to the three counts against the corporation, that is five, six and seven, there will be a $1,000.00 fine to be paid, the period I am going to order it be paid is six months. One half of the fine is to be paid within six months of today's date that is July 18th, 2005. The balance is to be paid no later than six months after that and I don't have a calendar for - it is January 2006. Do you have a calendar. Your balance is to be paid no later than the last Friday in January 2006 all right? The fines are payable to the Minister of Finance and I am advised by the court staff that you can pay the fine at any courthouse in the Province of Ontario. The last Friday in January 2006 is the 27th. All right? So the balance is to be paid by January 27, 2006.
¶ 118 The document that you fill out will show that the address of this courthouse - the sign will have the address of this Courthouse on it all right? Any items that were seized from the numbered company in December 2003 by the RCMP certainly in the possession of the RCMP are ordered forfeited and to be destroyed by the RCMP and/or its designate.
¶ 119 With respect to your sentence there will be a $1,000.00 fine payable on each of count one, two and three and that fine will be payable, one half by the same date that I gave you earlier and the balance to be also paid by January 27th 2006 and if necessary - if you are not able to pay those amounts by the time prescribed you will have to make an application in Court for an extension. Do you understand that?
¶ 120 JACOB BENCHMUEL: Yes.
¶ 121 THE COURT: The balance of your sentence will be a conditional sentence. It will be for a term of six months. A section - just for the purpose of the form 109 and 110 orders not required, doesn't apply. There are statutory terms that I have to impose, these are the statutory terms; during the period of the conditional sentence order you are to keep the peace and be of good behaviour, appear before the Court when required to do so by the Court, report no later than January 31, 2005 - is that sufficient time ...
¶ 122 THE CLERK: Actually the initial reporting ...
¶ 123 THE COURT: Will be here? You will report today then - thank you Madam Clerk - to a supervisor and thereafter report when required by the supervisor in the manner directed by the supervisor. So you will go to the probation office today and that is the reporting that you make today all right? Your main - the statutory terms include that you remain within the Province of Ontario with written permission to go outside the Province obtained from the Court or the supervisor and I am giving you permission to leave the Province of Ontario so - it is still here or do you need to have that on the form? Written permission to go outside and obtain from the Court - I will give written permission if there is a form for me to sign for that. I guess that will be the other order.
¶ 124 THE CLERK: The signature on the transfer - I believe ...
¶ 125 THE COURT: That can be under O - additional conditions. So I am going to give you written permission to leave the Province of Ontario as part of the conditional sentence order. You are to notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation which you can speak to the supervisor about today. All right? The balance of the terms that are being imposed are the following - during the first two months of the order, commencing today and ending on March 17, 2005 - you will be under a house arrest. The terms of this order are that you will remained confined in your residence at all times with the following exceptions, employment, medical appointments or emergencies involving yourself or members of your immediate family, religious services and any legal obligations regarding compliance with a conditional sentence order. Each of the above includes permission to travel directly to and from the applicable location. You will provide a proposed schedule of work, medical appointments, religious services and any other legal obligations pursuant to this order, to the supervisor and the supervisor will incorporate them into a written letter of permission to be out of your residence and that letter shall be carried by you on your person at all times while outside of your residence. The order also includes a term that you may obtain permission from the supervisor in writing to be absent in your residence for any other reason deemed appropriate by the supervisor and such permission shall be carried by you at all times while outside of your residence. Do you understand that?
¶ 126 JACOB BENCHMUEL: Yes.
¶ 127 THE COURT: During the balance - the following two months, March 18, 2005 until May 17, 2005 you will be on a curfew to be in your residence between the hours of 10:30 p.m. and 6:30 a.m. unless permission is obtained in writing from the supervisor or his or her designate. All right? The statutory terms apply during the balance of the conditional sentence order.
¶ 128 Do you understand the terms that I have told you about?
¶ 129 JACOB BENCHMUEL: I didn't understand the hours of the first ...
¶ 130 THE COURT: You are to stay in your residence during the first one except for employment, medical appointments or emergencies involving you or your family, religious services and legal obligations relating to this order and what you will do is speak with the supervisor and let the supervisor know what the time of your appointment is, what medical appointments you have other than emergencies obviously, what your requirements for religious services are and if you have a legal obligation for example to go to Court in relation to this matter. You will do all of that when you meet with the supervisor and then the supervisor will give you a written letter that you will carry with you that will set out when you can be outside your home. All right? Understand that now?
¶ 131 JACOB BENCHMUEL: Yes.
¶ 132 THE COURT: I am ordering that the - with the consent of the Attorney General of Canada obtained today through Ms. Csele that the conditional sentence order be transferred to the Province of Quebec and with respect to any items seized from Mr. Benchmuel in the month of December 2003 there will be an order of forfeiture for any such items held by the RCMP to be destroyed by the RCMP or their designate. Counsel was there anything else? Is that everything. The balance of the charges?
¶ 133 MS. CSELE: To be withdrawn.
¶ 134 THE COURT: Balance of the charges are to be withdrawn. Good luck Mr. Benchmuel.
QL UPDATE: 20050329
qp/s/qljxh