Court of Appeal for Ontario
Date: 2024-03-13 Docket: C70041
Judges: Trotter, Zarnett and Sossin JJ.A.
Between: His Majesty the King Respondent
And: Barbara Booker Appellant
Counsel: Jessica Zita, for the appellant Baaba Forson, for the respondent
Heard: February 29, 2024
On appeal from the conviction entered by Justice Peter C. West of the Ontario Court of Justice on May 17, 2021, and from the sentence imposed on November 29, 2021, with reasons reported at 2021 ONCJ 624 and 2021 ONCJ 625.
Reasons for Decision
Overview
1The appellant was a secretary, law clerk, and bookkeeper at the firm of Richard A. Nabi & Associates (the “Firm”) for 13 years, starting in 2002, up to Mr. Nabi’s retirement in 2014. She was convicted of fraud over $5,000 in relation to cheques drawn on the Trust and General accounts of the Firm, totalling close to $100,000, that were not authorized by Mr. Nabi.
2In relation to a separate incident, the appellant was also convicted of uttering a forged document in relation to a fraudulent divorce order she provided to a client of Mr. Nabi.
3The appellant was sentenced to 18 months’ imprisonment total: 12 months for fraud over $5,000 and 6 months consecutive for uttering a forged document.
4The appellant appeals against both her conviction and sentence.
5For the reasons that follow, the appeal is dismissed.
Background
6Emily Wyer was the estate trustee of her brother’s estate. The appellant provided Ms. Wyer with close to $100,000 in unauthorized cheques between February 14, 2013 and August 29, 2014. Ms. Wyer received 140 cheques in total. On May 9, 2014, life insurance proceeds for the estate of Ms. Wyer’s brother were deposited in the Firm’s trust account, but Ms. Wyer had been receiving cheques from the appellant for more than a year when the life insurance proceeds arrived.
7The unauthorized payments were discovered after Mr. Nabi’s retirement. In late 2016, he was contacted by Ms. Hoy, a lawyer for a client whose file he had transferred, Sandra Wendler. Ms. Hoy asked him about a payment to Ms. Wendler for $125,000 which was deposited in the Firm’s trust account in May 2013 for an estates matter. Mr. Nabi was unaware that the funds had been received. He attempted to contact the appellant about these funds, but she did not answer. He then hired an accountant to locate the Wendler funds, which is when he learned about the cheques issued to Ms. Wyer. The appellant argued at trial that it was Mr. Nabi who instructed her to issue cheques to Ms. Wyer. Mr. Nabi claimed that he did not know Ms. Wyer and had never heard of her until these proceedings. He claimed that he did not authorize any of the cheques the appellant provided to Ms. Wyer or any payments to Ms. Wyer.
8The appellant was tried along with Ms. Wyer for the fraud over $5,000. The main issue was whether Mr. Nabi authorized the appellant to issue the cheques. Ms. Wyer did not testify. The trial judge rejected the appellant’s evidence, finding that it contained inconsistencies and contradictions. In contrast, the trial judge found that Mr. Nabi was candid and forthright. Ultimately, the trial judge found that the cheques provided to Ms. Wyer were not authorized by Mr. Nabi and that the appellant was the one who wrote and prepared them all. She and Ms. Wyer were thus convicted of fraud over $5,000.
9The appellant was also charged with uttering a forged document for providing a fraudulent divorce order for another client of Mr. Nabi, Yanet Diaz. The appellant claimed that she was provided the divorce order by either Mr. Nabi or Ms. Baer, another individual at the Firm, and that she was unaware the divorce order was fraudulent when she gave it to Ms. Diaz.
10The appellant was convicted of this offence. The trial judge found that when the appellant gave Ms. Diaz the court order and told her she was divorced, she must have known, given her training, experience, and knowledge, that certain preconditions that had to be satisfied before the uncontested divorce could be granted had not been completed. He also noted that there were irregularities in the accounting ledger which proved that the appellant attempted to conceal her actions.
11In terms of sentence, the trial judge found that the pre-sentence report was sparse with respect to the appellant’s personal circumstances and did not provide much insight into her motivations. There were victim impact statements from Mr. Nabi and from Ms. Diaz that outlined the significant effects that the appellant’s actions had on them.
12The trial judge imposed a sentence of 18 months’ imprisonment total, comprised of 12 months for fraud over $5,000, and 6 months consecutive for uttering forged documents. In doing so, the trial judge considered the appellant’s breach of trust and her duty to act with integrity. As discussed below, in this analysis, the trial judge was under the mistaken impression that the appellant was a licensed paralegal.
13With respect to mitigating circumstances, the trial judge considered that the appellant did not have a criminal record. She had settled an action brought by Mr. Nabi and LawPRO against her, the settlement stating that it would in no way be deemed an admission of fault. Her lawyer also had money in trust to cover the restitution of Ms. Diaz’s expenses. However, the trial judge found the appellant continued to show no remorse over the conduct for which she was convicted.
14The trial judge considered the various sentencing principles and sentencing ranges from analogous cases and imposed sentences at the low end of the range he found appropriate for each offence.
Analysis
15The appellant raises the following grounds of appeal.
16With respect to the conviction appeal, the appellant claims the trial judge erred by:
- improperly relying on information provided by Mr. Nabi’s counsel that was not properly before the court;
- conflating the absence of proved motive with proved absence of motive; and
- applying uneven scrutiny to the appellant’s evidence.
17In oral argument, the appellant contended that, taken together, these errors were properly considered as a misapprehension of evidence by the trial judge.
18With respect to the sentence appeal, the appellant claims that the trial judge made incorrect findings of fact that resulted in an unfit sentence.
19Each of these grounds are addressed below.
(1) The Conviction Appeal
(a) The trial judge’s reference to information provided by Mr. Nabi’s counsel, Joanne Birenbaum, does not rise to the level of a misapprehension of evidence that warrants appellate interference
20The appellant’s trial counsel brought a third-party records application in advance of trial, seeking, among other things, Mr. Nabi’s appointment diaries for the years 2013 to 2014. Ms. Birenbaum, who represented Mr. Nabi on this motion, reviewed the two appointment diaries and provided the pages of the diary reflecting five scheduled appointments between Mr. Nabi and Ms. Diaz in 2013. In her letter, she advised that there were no appointments reflected in the 2014 diary between Ms. Diaz and Mr. Nabi. She also indicated that the appellant’s counsel had already been advised that the diaries did not reveal any appointments between Mr. Nabi and Ms. Wyer. Ms. Birenbaum refused to provide the entire 2013 and 2014 appointment diaries because of solicitor/client privilege, since most of the diary entries related to other clients of the Firm.
21This portion of the third-party records motion was deemed resolved, so Ms. Birenbaum did not attend the hearing. Consequently, her letter was never made an exhibit, nor did she testify at trial.
22However, the trial judge referred to the contents of Ms. Birenbaum’s letter in his finding that Mr. Nabi did not alter his records with respect to any meetings with Ms. Wyer:
I am satisfied there were no appointments with Ms. Wyer entered in Mr. Nabi’s appointment book for the years in question, which leads to the reasonable inference that Mr. Nabi did not meet with Ms. Wyer and supports his evidence. If Mr. Nabi had removed from his appointment book any appointments entered respecting Emily Wyer it is my view this would have been readily apparent to Ms. Birenbaum who was representing Mr. Nabi on the third party records application and as an officer of the court Ms. Birenbaum would have been under an ethical obligation to bring this to the attention of the Court and counsel. This did not occur.
23According to the appellant, this passage reflected the reliance of the trial judge on a letter which was not in evidence, and on which Ms. Birenbaum was never cross-examined. Not only did this evidence play a material role in his reasoning on whether Mr. Nabi and Ms. Wyer had met, but it also could have affected his findings on credibility more generally.
24The respondent argues that it was not improper for the trial judge to refer to the process under which the diary entries were obtained and the role of an officer of the court in that process. In any event the Crown argues that the reference to Ms. Birenbaum was not material to the trial judge’s finding that Mr. Nabi had not met Ms. Wyer. That finding primarily rested on testimony from Mr. Nabi, which the trial judge accepted, and the fact that the trial judge rejected the evidence of the appellant, who claimed the two had met.
25It is not necessary to decide whether the trial judge misapprehended the evidence by improperly considering something that was not evidence. As this court affirmed in R. v. Abdullahi, 2015 ONCA 549, at para. 6, misapprehensions of the evidence merit reversal only if they are material in that they play “an essential role in the reasoning process that led to the conviction.” See also R. v. J.W., 2023 ONCA 304, 88 C.R. (7th) 26, at para. 20. We are satisfied that the trial judge’s reference to Ms. Birenbaum did not constitute an integral aspect of the trial judge’s reasoning.
26Considering the entirety of the reasons and the evidence as a whole, the trial judge’s factual and credibility findings would not have changed if the reference to Ms. Birenbaum were removed from the reasons.
27This ground of appeal therefore fails.
(b) The trial judge did not conflate the absence of proved motive with proved absence of motive
28The appellant argues that the trial judge erred in concluding that “Mr. Singh’s repeated allegation of Mr. Nabi having a ‘clear, strong and proven motive to fabricate evidence,’ does not find any support or confirmation in the evidence presented during this trial.”
29The appellant submits that Mr. Nabi, who was facing a disciplinary investigation by the Law Society of Ontario (“LSO”), clearly had some motive to fabricate evidence.
30The appellant also takes issue with the trial judge’s statement that it was contrary to common sense that Mr. Nabi would risk a serious disciplinary offence by writing trust account cheques when there is no money in the trust account. The trial judge added that this allegation “makes absolutely no sense whatsoever, particularly based on the evidence before the Court respecting the nature of Mr. Nabi’s law practice and his positive reputation.”
31According to the appellant, there was no evidence before the trial judge of Mr. Nabi’s “positive reputation.”
32We reject these submissions.
33It is well recognized that where there is no apparent motive to fabricate, but the evidence falls short of proving absence of motive, it is impermissible to conclude a witness has no motive to fabricate and must be telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 19-22.
34In this case, the trial judge did not make a Bartholomew error. He simply rejected the appellant’s argument of a motive. He did not go further and make a positive finding that Mr. Nabi had no motive to fabricate whatsoever, nor did he reason, as a result of the absence of evidence of a “clear, strong and proven” motive to lie, that Mr. Nabi must be telling the truth.
35Further, there was a clear basis for the view that Mr. Nabi enjoyed a positive reputation prior to his retirement, including the fact that he had served as President of the Fort Erie Bar Association and as President of the Welland County Bar Association in the past.
36This ground of appeal also fails.
(c) The trial judge did not apply uneven scrutiny to the appellant’s evidence
37The appellant did not pursue the unequal scrutiny of evidence ground of appeal in oral argument, but in her factum, she alleges that the trial judge was harsh and selective when it came to how he assessed the appellant’s evidence. According to the appellant, the trial judge readily accepted Mr. Nabi’s explanations for potential inconsistencies in his evidence, but did the opposite for the appellant, finding her explanations showed “a deliberateness and intent to disguise or conceal the true state of affairs.”
38The findings the trial judge made, particularly with respect to credibility, were open to him on the record and are entitled to deference.
39We see no merit to the allegation that the trial judge applied a stricter standard of scrutiny in his assessment of the appellant’s evidence compared to the Crown’s evidence.
(2) The Sentence Appeal
40At the sentencing hearing, the Crown argued that a two and a half year penitentiary sentence was appropriate for the appellant. Defence counsel submitted that a conditional sentence of two years less a day, followed by three years of probation was more appropriate. As set out above, the appellant was sentenced to 18 months’ custody.
41On appeal, the appellant raises concerns with several findings of fact in the sentencing reasons.
42First and foremost, the appellant claims the trial judge mistakenly formed the view that the appellant was a licensed paralegal. While she was a law clerk, there was no evidence in the record that she was licensed by the LSO. This mistaken fact was cited expressly by the trial judge as an aggravating factor on the uttering a forged document count:
There was the serious aggravating circumstance that Ms. Booker’s fraudulent behaviour also breached the public trust and faith in the administration of justice. It is my view that those who are licensed to appear in court and to file applications with the court, both lawyers and law clerks or paralegals “are duty bound to protect the administration of justice and enhance its reputation within their community.” Her criminal behaviour in the course of performing functions connected to her employment with Mr. Nabi’s law practice “had exactly the opposite effect.” Law clerks/paralegals like Ms. Booker “who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.
43Further, after summarizing the seriousness of the appellant’s fraudulent conduct, and the need to deter and denounce fraudulent conduct committed by a person in a position of trust, the trial judge added: “In addition, it was a fraud perpetrated by an individual who was licensed by the Law Society to perform services in respect of the administration of justice and the Courts.”
44At first glance, it appears the mistaken belief that the appellant was a licensed paralegal may have contributed to the length of her sentence. Reading the sentencing reasons as a whole, however, diminishes the significance of this error.
45The basis of this aggravating factor on the uttering a forged document count was not only the licensed status of the appellant, about which the trial judge was mistaken, but more importantly, her functional role in submitting official documents to the court and representing, to Mr. Nabi’s client, that a document she falsified was a valid court order, all of which she was able to do by holding herself out to as an authorized representative of a lawyer. The trial judge explained this after excerpting a quote from R. v. Rosenfeld, 2009 ONCA 307, 94 O.R. (3d) 641, at para. 40, leave to appeal refused, [2009] S.C.C.A. No. 407, regarding the breach of trust of a lawyer (and from which the quoted portion of para. 96, reproduced above, also was taken). He then applied the principles in Rosenfeld to the appellant’s actions:
Ms. Booker is not a lawyer but she was employed by a lawyer as a law clerk, performing work often done by a lawyer. Further, she was dealing with and providing information and documentation to the Superior Court in an uncontested Divorce Application, where the goal was, if all the appropriate and proper documents necessary were filed and all fees were paid to the court, a legal Divorce Order would be obtained and provided by Ms. Booker to Ms. Diaz. Ms. Booker knew she had not completed the necessary documents or filed them with the court and she also knew she had not paid the second fee to the Court. Instead, she concealed this by making false entries in the PC Law accounting program to hide these facts from Mr. Nabi. Further, she reimbursed Ms. Diaz the fees Ms. Diaz had paid Mr. Nabi at their meeting because of the delays she had created. This was for the purpose of persuading Ms. Diaz not to complain about these delays to Mr. Nabi. In my view this is a significant additional aggravating factor to be considered when considering whether a conditional sentence adequately addresses the principles of denunciation and deterrence. [Emphasis added.]
46Similarly, the most important factor regarding the fraud charge was that it was committed by the appellant while in a position of trust with her employer, a matter unrelated to whether she was licenced. She also used her position within a law firm to access a lawyer’s trust account. It goes almost without saying that the proper administration of trust accounts is critical to public confidence in the legal profession and its role in the administration of justice.
47The conduct of the appellant, by taking advantage of her role in a law office in relation both to the fraud over $5000 and uttering forged documents convictions, affected the administration of justice and its repute in the community. While the trial judge mistakenly referred to the appellant as a licensed paralegal, in our view, this error did not have an impact on the sentence imposed on the appellant.
48The appellant also takes issue with the trial judge’s inference that the appellant gained financially from the fraud in which she participated. After reviewing the appellant’s evidence which he did not accept, the trial judge stated that “it is my view the only reasonable inference was that Ms. Booker was actively engaged in defrauding Richard Nabi for her own financial benefit.”
49The appellant contends there was no evidence that she benefitted financially and that the trial judge erred in this inference.
50In our view, the trial judge’s inference was rooted in the record and was available to him. We see no error in this aspect of the trial judge’s reasons.
51Similarly, the appellant contends that the trial judge was “needlessly critical” of the pre-sentence report when he stated that “I do not know any details respecting her children or grandchildren as the presentence report in my view was very sparse on providing details about [the appellant’s] everyday life.” This statement reveals no error. The trial judge did not reject evidence of the appellant’s favourable personal circumstances, but rather concluded that “[t]here are no mitigating personal circumstances capable of reducing Ms. Booker’s moral blameworthiness.”
52Finally, the appellant argues that the sentence is unduly harsh and that she does not deserve to be in custody.
53We reject this submission.
54The range for analogous sentences both for fraud over $5,000 and for uttering forged documents show the sentence imposed by the trial judge for each conviction was not at the high end of the range and represented a rough mid-point between the Crown and defence positions at the sentencing hearing.
55With respect to the sentence for fraud over $5,000, the trial judge concluded a range of 12-18 months in custody reflected a proportionate sentence, in the range of analogous cases. The trial judge reiterated the seriousness of the appellant’s fraudulent conduct, involving 140 unauthorized cheques: “This case involves a serious breach of trust by an employee secretary/bookkeeper, involving close to or just slightly above $100,000. Regardless of whether this is a major large-scale fraud or not, the facts surrounding Ms. Booker’s fraud of her employer are egregious and were carried out over an extensive period of time, with devastating consequences and impact on the victims.” (at para. 32).
56The trial judge, taking into account the seriousness of the offence, together with the fact that this was a first jail sentence for the appellant, as well as the COVID-19 concerns raised by her counsel, imposed a 12-month custodial sentence.
57With respect to the sentence for uttering a forged document, the trial judge concluded that a fit and proportionate sentence for the conviction would be in the range of six to nine months. After taking into account the principle of totality and the COVID-19 collateral consequence, he imposed a six-month consecutive custodial sentence on the appellant.
58This overall sentence is in line with sentences for analogous convictions: see e.g., R. v. Charity, 2022 ONCA 226, 161 O.R. (3d) 721; R. v. Manickam, 2021 ONCA 668; R. v. Piccinini, 2018 ONCA 433; R. v. Shaw, 2012 ABPC 273, aff’d 2015 ABCA 25, leave to appeal refused, [2015] S.C.C.A. No. 108.
59In our view, the trial judge properly considered the appropriate sentencing range, the principles of deterrence and denunciation, restraint and totality, as well as the applicable aggravating and mitigating factors.
60Appellate intervention in a sentence is warranted only if (1) the sentence was demonstrably unfit, or (2) the sentencing judge made an error of law or error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 39-40 and 49. The grounds for appellate interference in the appellant’s sentence are not present.
Disposition
61The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.
“Gary Trotter J.A.”
“B. Zarnett J.A.’
“L. Sossin J.A.”
