Court of Appeal for Ontario

Date: 2017-11-14 Docket: C61549

Panel: Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Remy Boghossian Appellant

Counsel

Erin Dann, for the appellant David Friesen, for the respondent

Heard and released orally: November 8, 2017

Appeal Information

On appeal from the convictions entered on September 8, 2015 by Justice A.J. O'Marra of the Superior Court of Justice, and from the sentence imposed on March 29, 2016, with reasons reported at 2015 ONSC 4851.

Reasons for Decision

Overview

1The appellant, who is a lawyer, was convicted of a fraud in the amount of about $1.9 million. He was sentenced to three and one-half years in the penitentiary. He appealed both conviction and sentence.

The Conviction Appeal

2It was common ground that the bank was defrauded. From the appellant's perspective, there was one factual issue in dispute – did the appellant know that his "client" Ali did not exist, or was the appellant duped by his co-accused as he testified in his evidence? If the appellant knew Ali did not exist, there could be no doubt that the appellant was a party to the fraud.

3After a summary of the evidence, the trial judge outlined the applicable legal principles at paras. 135-38. He said, at para. 138:

In my view, there is a strong circumstantial case as outlined above from which reasonable inferences can be drawn that all three of the accused acted together to knowingly defraud the RBC by the presentation of a fraudulent TD bank draft in the amount of $1,895,751 to acquire gold. However, are there other rational conclusions, or explanations from the evidence that raise a reasonable doubt? The question is whether or not I am satisfied beyond a reasonable doubt as to their individual guilt considering all of the evidence through the assessment paradigm as set out in R. v. W. (D.), [1991] 1 S.C.R. 742.

1. If I believe the evidence of the accused or the evidence the accused relies on in support of his defence, I must acquit.

2. Even if I do not believe the accused's evidence or evidence relied on in support of his defence, but I am left in a state of reasonable doubt or uncertainty, I must acquit.

3. Even if I am not left in doubt by the evidence of the accused or evidence relied on in support of his defence, I must consider whether I am convinced beyond a reasonable doubt of the accused's guilt based on the balance of the evidence I do accept.

4From paras. 138 to 170, the trial judge proceeded to a detailed review of the evidence, including the appellant's evidence, organized by reference to the key events or key documents referred to in the evidence. The trial judge made several findings of fact, all directed at whether the appellant knew that Ali did not exist. He provided explanations for those findings. His ultimate conclusion appears at para. 171 of his reasons:

I do not accept Remy Boghossian's evidence that he was a dupe manipulated by Ebrekdjian and others. I am satisfied beyond a reasonable doubt that Remy Boghossian was a knowing participant in the presentation of the fraudulent bank draft to the Royal Bank of Canada on February 10, 2011, and subsequently possessed gold knowing it had been obtained by a criminal offence.

5Our review of the reasons reveals no reversal of the burden of proof by the trial judge. In fact, as acknowledged on the appeal, the trial judge properly identified and described the burden of proof at least twice in his reasons. In our view, the trial judge did not convict the appellant because he disbelieved the appellant, but rather he disbelieved the appellant because, on the totality of the evidence, he was satisfied beyond a reasonable doubt that the appellant knew that Ali did not exist.

6We also cannot accept the submission that the trial judge drew speculative inferences from some of the evidence. While we agree that there were pieces of evidence that may have admitted of exculpatory inferences, it was ultimately for the trial judge to decide what inferences should be drawn from any particular piece of evidence. The inferences that he drew were reasonably available to him on the evidence.

7It is not surprising in a case of this sort that the trial judge did not address each and every piece of evidence separately in his reasons. He is not obliged to do so. The trial judge clearly had a full command of the evidence. This is not a case in which it can be said that the trial judge failed to consider evidence that was central to a contested issue or issues. To the contrary, the trial judge's reasons focused on the only contested issue – did the appellant know that Ali did not exist?

8For the above reasons, we would dismiss the conviction appeal.

The Sentence Appeal

9The sentence imposed of three and one-half years was well within the range appropriate to a large-scale fraud such as this. Counsel submits that the appellant should have received the same sentence that was imposed on his co-accused. Each received three years. In our view, the extra six months awarded the appellant does not raise parity concerns. The appellant was a lawyer. His status as a lawyer and the role his status as a lawyer played in the commission of the offence justified treating this as an aggravating factor, warranting a somewhat higher sentence for the appellant. We see no error in the sentence imposed.

10The sentence appeal is dismissed.

Conclusion

11We wish to make it clear that we were able to deal with this appeal, a matter of some complexity, expeditiously in large measure because the trial judge's reasons were so thorough and carefully done.