Ontario Court of Justice

Date: October 6, 2016

Court File No.: Toronto Region – 13-70018956-01

Between:

HER MAJESTY THE QUEEN

— AND —

NAO KHOU

Before: Justice M. Wong

Heard on: March 3, 4, 17, 18, 23; April 21; June 2 and 17; July 28; August 20; September 11, 23, 30; October 19, 20, 21, 23, 26; November 30; December 1, 2, 3, 2015. January 25, 26; February 1, 2, 4, 5, 9, and 11; March 16 (Crown Final Submissions); July 19, 2016 (Amicus and Mr. Khou's Final Submissions); September 21, 2016 (s. 11(b) Submissions)

Reasons for Judgment released on: October 6, 2016

Counsel:

• S. Patterson — counsel for the Crown
• F. Bernhardt — amicus for the Court
• The accused Nao Khou — on his own behalf

Judgment

Wong, J.:

Charges

[1] Nao Khou is charged that sometime between and including January 1, 2012 and September 13, 2013 he defrauded Home Depot of home hardware items valued over $5000.

[2] He is also charged that between and including January 1, 2012 and September 13, 2013, he defrauded Canadian Imperial Bank of Commerce of money which exceeded $5000.

[3] Lastly, Mr. Khou is charged that on September 26, 2013, he had possession of property he knew was stolen namely high end door handles, locks, and other home hardware items valued over $5000.

[4] Mr. Khou elected to be tried in the provincial court. He was self-represented but assisted by amicus curiae, whose role was expanded beyond assisting the Court on the law.

[5] The Crown called 10 witnesses and Mr. Khou testified on his own behalf. Mr. Khou's arraignment began on March 3, 2015, but evidence was not called until November 30, 2015. During that time I tried to help Mr. Khou understand his options including potentially bringing a Rowbotham application. A few trial dates were also lost while the Court waited for the province's only fully accredited Cambodian interpreter. After 14 days of evidence, final submissions on the trial were heard on July 19, 2016. Afterwards, Mr. Bernhardt as amicus advised me that he felt compelled to raise with Mr. Khou the Supreme Court of Canada's July 8, 2016 decision of R. v. Jordan (2016) SCC 27 relating to section 11(b) of the Charter. Through amicus, Mr. Khou indicated he wanted to bring a s. 11(b) Charter application. The matter was adjourned and I ordered the transcripts of Mr. Khou's many court appearances starting on November 12, 2013 until Mr. Bernhardt's appointment as amicus. On September 21, 2016, I heard submissions on section 11(b).

[6] This is my ruling on the trial proper and the section 11(b) application:

Summary of Allegations

Position of the Parties

a) Crown's Position:

[7] Mr. Patterson for the Crown submits Mr. Khou is guilty as a principal for the offence of fraud because he actually committed the dishonest act(s) that lead to the deprivation – while knowing or being wilfully blind to the fact that it would occur. In the alternative, the Crown argues Mr. Khou is guilty as a party because he intended to assist in the dishonest acts while being willfully blind to the dishonesty.

[8] Between January 1, 2012 and September 13, 2013, Mr. Khou was captured on security cameras at various banks, where he and sometimes other people, would deposit cheques into an account. The accounts were never in Mr. Khou's name and all of the deposited cheques were eventually returned to the banks as "NSF" meaning there were insufficient funds in the accounts. In the meantime, the large cheque deposits temporarily raised the customer's available credit limit. In banking terms, this is what witnesses referred to as the "open to buy". Mr. Patterson for the crown alleges Mr. Khou and sometimes others, would then quickly go to Home Depot stores and make large credit card purchases knowing the "open to buy" was temporarily inflated and as yet undetected by the banks.

[9] Mr. Khou as seen on videos, sometimes alone but often with other people, would then buy merchandise (usually expensive faucets) from various Home Depot stores; sometimes travelling to and from several stores in the GTA and southern Ontario on the same day.

[10] At the same time, Home Depot was also vulnerable to what witnesses referred to as a "bust out", which I will review in a moment. It is the Crown's position that Mr. Khou and others knew how to override the Home Depot system by instructing the cashier to manually enter the 3 digit CVV code on the back of the credit card. Witnesses called these "forced authorizations" which the banks did not authorized; as a result Home Depot was responsible for the financial loss.

[11] The amount of spend above the credit limit on the worthless cheque payments is the "bust out" fraud amount on the account. In total the crown alleges 10 credit cards were used for a total of 205 forced authorized transactions totalling $320,742.93, which were charged back to Home Depot.

[12] The total fraud loss to CIBC Visa is $21,403.53 (total balance on 9 bust out accounts $93,603.56 minus total of credit limits on 9 bust out accounts $72,200, which equals $21,403.53).

b) Defence Position:

[13] Mr. Khou's position was advanced through Mr. Bernhardt acting as amicus: namely, that he had permission from the cardholders and the cheque's owners to use their cards and cheques to buy merchandise at Home Depot. Mr. Khou, age 53, came to Canada in 1990. At the time, he was married, but in 1992 he and his wife divorced. He has one adult daughter, who he was living with when he was arrested. In the past, Mr. Khou said he worked in a factory, but was laid off; then he took courses to improve his English and eventually he learned how to fix houses. Mr. Khou testified between 1998 and 2000 he also became a money lender: giving private loans to people and charging interest. Mr. Khou said he worked on the basis of trust, but often people did not pay him so he lost money. By 2008, Mr. Khou said he gained the reputation amongst people from the Cambodian community as a private retailer: people working in the construction/renovation field could buy from Mr. Khou, at a discount, supplies such as faucets and other home hardware. He also made extra money driving people to casinos and bus stations. Through his work, Mr. Khou said he met people he described as "gamblers" and people who needed fast cash, but who themselves could not withdraw money from their own bank accounts or get cash advances from their credit cards. The "gamblers" and their friends often came to Mr. Khou and authorized him to use their credit cards to buy whatever Home Depot merchandise he needed, which Mr. Khou would then sell to renovators. For example, if Mr. Khou bought $1000 worth of merchandise on the gambler's credit card, then he would pay the gambler/card holder $800, and keep the merchandise and receipt. In turn, Mr. Khou said he would sell the merchandise to a renovator at the full price on the receipt. Mr. Khou said that he assumed the owner of the card would pay the credit card balance because it was not his responsibility. He assumed everything was "100% legal".

[14] Mr. Khou explained that often a Home Depot store would not have enough of the product he needed; so he would have to go to different Home Depot stores in the same day. For example, if he bought two faucets at one store, but he needed two more, Mr. Khou would then go to another Home Depot store, and so on. Mr. Khou described this as Home Depot's "inventory problem".

[15] Mr. Khou emphasized in his testimony that the Crown's witnesses', who included banking and security managers and employees, all agreed none of the registered card holders ever complained to the banks about any unauthorized purchases. Mr. Khou often stated he assumed that the cardholder would pay for their credit card balances because it was their debt not his. If the cardholder did not pay the balance owing on their cards, Mr. Khou repeated it was not his fault nor his responsibility. Mr. Khou often said that if the Court had any questions about the credit card debts, then the person to ask was the cardholder, not him.

[16] When police executed a search warrant at his home, they seized and catalogued five skids or pallets worth of hardware merchandise. Some products were exclusive to Home Depot such as Ridgid faucets while other brands could be bought at Lowe's and other hardware stores. Mr. Khou said all of the merchandise police seized either he bought from the gamblers or he purchased himself. Mr. Khou provided handfuls of receipts, which were issued to him in his own name.

[17] Police also seized a large collection of other people's credit cards, cheques, financial documents, and identification amongst Mr. Khou's belongings. Mr. Khou said these owners accidentally dropped their documents in his car while others asked him to keep their documents for safe-keeping.

Summary of the Evidence

[18] The evidence in this trial consisted of video clips, still photos, banking records, Home Depot transaction receipts, viva voce evidence from Home Depot security investigators and a store employee; fraud investigators from Canadian Imperial Bank of Commerce (CIBC), Citibank, and Bank of Montreal (BMO); the one time co-accused, Kim Ong; and police officers. As mentioned, Mr. Khou also testified on his own behalf.

[19] The following is a summary of that evidence:

a) Wayne King

[20] Mr. King now retired was member of the Toronto Police Services from 1975 to 2014. Currently he works for Home Depot as their central investigator in their Organized Retail Crime branch.

[21] Mr. King testified as early as January 2012, he was contacted because of suspicious sales of large quantities of high-end faucets all made on the same day from several Home Depot stores. After some initial investigation, Mr. King opened a file on a suspect he dubbed "black and white" because the male always wore a black and white baseball cap. A break in the case came when at one point of sale (at the cash register), the man tendered a cheque and the Home Depot cashier asked him for identification. The man gave the cashier Government of Canada photo ID and an Ontario Driver's License, which were marked as exhibits 15A and 15B at the trial. The man was Nao Khou, who Mr. King said he recognized as the same male in the black and white baseball caps in the store security videos (identification was eventually admitted during the trial).

[22] Mr. King said the suspicious activity stopped around February 2013, but then picked up again in May and June 2013. He said he started getting alerts again about the suspect "black and white".

[23] According to Mr. King, the suspect(s) initially paid by cheque. Mr. King described how Home Depot contracts with a third party company called "Tele-cheque". The way it works is Home Depot accepts the customer's cheque at the point of sale, gives the cheque to Tele-cheque, who in turn collects the money on behalf of the company. If the Home Depot employee follows the correct policy and procedure when the cheque is initially accepted, but later the cheque is returned NSF, then Tele-cheque is the victim. If the Home Depot employee does not follow the procedure and the cheque turns out to be worthless, then Home Depot is the victim. Generally it took 30 days or longer before the banks let Tele-cheque know if there is was problem with the cheque.

(b) Maria Bellomo and Sonia Addesa

[24] According to Maria Bellomo, a CIBC Fraud Inspector, a typical credit card purchase requires the customer to use a personal identification number (PIN), which is inputted to the system to allow the transaction to go through. The PIN number is issued to the customer by the bank but later the client can change the PIN number. On the back of the card is a three digit CVV number, which is used for verification purposes.

[25] At the point of sale, if the transaction is not approved then the merchant is to call the central bank to validate the charge. This is called a Referred Transaction Account. It is referred because the bank is highly suspicious and the account is blocked. Ms. Bellomo testified an account is blocked because of unusual activity on the account. "Blocking" is the same as "holding" an account. A customer cannot use their account if it is blocked or held until the merchant calls the central bank and they validate the customer. "Validate" means someone at the central bank reviews the account, speaks to the client and asks security questions to ensure the customer is the authorized holder of the account.

[26] Where an authorization is not approved, but the merchant nonetheless approves the transaction, the bank has "charge back rights" and the merchant is held financially responsible. In other words, if the merchant does not "refer" a blocked or held account, and instead manually allows the transaction to be processed without the bank's authorization then the merchant, not the bank, is responsible for the loss.

[27] A merchant can manually force an authorization to go through an account by manually keying in numbers, according to how their system is set up. For example, a merchant may have a four number transaction code that can be manually entered.

[28] Sonia Adessa worked as the Divisional Manager in Home Depot Canada's asset protection branch. In 2013, Ms. Adessa was alerted to a problem relating to the use of credit cards at the point of sale terminals at Home Depot. In the summer of 2013, she met with Wayne King and CIBC investigator Paul Morgan. The purpose was to perform a controlled experiment to learn what was happening at the Home Depot point of sale terminals, which had allowed a number of purchases to be processed that circumvented the Home Depot procedure.

[29] At a random Home Depot store, Mr. Morgan used a CIBC credit card, which had been pre-"blocked" and he bought a package of gum. The cashier scanned the product and totaled the transaction. As in a standard transaction, Mr. Morgan entered in the card's PIN number. As expected, the Home Depot computer terminal sent a message: "Referral Call for Credit Authorization #001". This message was a prompt that ought to have directed the cashier to call for authorization. Instead Mr. Morgan randomly selected and entered three digits: 1, 2, and 3, and the transaction was processed. "1, 2, 3" was not the three digit CVV code on the back of the credit card, but rather just three random numbers. The credit card transaction for the gum was processed even though it was not authorized.

[30] Ms. Addesa testified they also experimented with a CIBC credit card that had a "hard block" on it. A "hard block", if applied to a credit card, results in an absolute decline at the point of sale and the matter is not even "referred" for authorization. In the case of a "hard block", it was expected that no matter what was done, the transaction would not have been processed. In this case, the Home Depot security system worked and the transaction did not go through.

[31] Maria Bellomo also described what is referred to as a "bust out". In a bust out, a customer opens an account and the bank imposes a credit limit. When the client or someone who has access to the card, makes a payment by cash or cheque, the available credit is immediately increased allowing them to make additional purchases. If later the payments are returned as "worthless", for example cheques later returned NSF, then the credit card holder or user has artificially and temporarily inflated the amount of credit on their card. The amount over the credit limit is the "bust out".

[32] It is within this framework that Ms. Bellomo on behalf of CIBC and Victor Gill from Citibank testified about 10 credit cards. For easier reference, the cards were referred to by their last 4 numbers on the credit card. The following is a summary of the evidence:

CARD 2668:

[33] CIBC VISA Card ending 2668 was issued to Ms. Jinya Hong of 61 Shepton Way. Credit Limit was $6000. Account was opened March 30, 2011 (Exhibit 1).

[34] On June 20, 2013, bank video showed an unknown male (not Mr. Khou) depositing a cheque in the amount of $4860 into the account associated with card 2668 (See Exhibit 1C)

[35] On July 4, 2013, at 8:52 pm bank video showed Mr. Khou depositing a cheque from Wyhn Anh Renovations into that same account in the amount of $6500 at an ATM machine (See Exhibit 1E). It is agreed that in order for Mr. Khou to have made that deposit, he had possession of the bankcard and knew the PIN number. Eventually, the cheque for $6500 was returned and marked as "dishonoured" or refused because the account was closed. (See page 61 of Exhibit 1)

[36] However, on July 4 and 5, 2013, a total of $50,578.41 worth of purchases were made on that card from Home Depot, which had a credit limit of $6000.00.

[37] In all of the still images taken from the videos (except where I have indicated otherwise) on July 4, 2013, Mr. Khou is seen on Home Depot surveillance video with an unknown female. On July 4th, Mr. Khou went to 20 different Home Depot locations at various times and made the following purchases:

• July 4, 2013 at 7:35 am from 140 Northview in Woodbridge – total: $341.20
• July 4, 2013 at 8:32 am from 50 Red Maple in Richmond Hill – total: $949.20
• July 4, 2013 at 8:34 am from 50 Red Maple in Richmond Hill (different cashier than 8:32 am) – total: $1012.48 (no image)
• July 4, 2013 at 9:10 am from 3155 Highway 7 in Markham – total: $987.60
• July 4, 2013 at 9:13 am from 3155 Highway 7 in Markham – total: $1334.53
• July 4, 2013 at 10:53 am from 50 Kirkham, Markham– total: $949.20
• July 4, 2013 at 10:55 am from 50 Kirkham, Markham– total: $1238.48
• July 4, 2013 at 1:13 pm from 101 Wicksteed Ave. – total: $1236.22
• July 4, 2013 at 1:17 pm from 101 Wicksteed, – total: $1323.20
• July 4, 2013 at 2:45 pm from 7 Curity Avenue – total: $949.20
• July 4, 2013 at 2:48 pm from 7 Curity Avenue – total: $2385.43
• July 4, 2013 at 6:00 pm from 825 Caledonia – total: $1481.43
• July 4, 2013 at 6:04 pm from 825 Caledonia – total: $1839.65
• July 4, 2013 at 6:35 pm from 2121 St. Clair W – total: $1561.51
• July 4, 2013 at 6:40 pm from 2121 St. Clair W., – total:$1021.52
• July 4, 2013 at 9:00 pm from 193 Queen N. in Etobicoke – total: $1830.60
• July 4, 2013 at 9:07 pm from 193 Queen N. in Etobicoke – total: $1341.85
• July 4, 2013 at 9:39 pm from 49 First Gulf, Brampton– total: $1942.22
• July 4, 2013 at 9:41 pm from 49 First Gulf, Brampton – total: $1618.16

[38] The next day, July 5, 2013, the same pattern of buying emerged. Mr. Khou was captured on video with the same unidentified female making the following Home Depot purchases.

• July 5, 2013 at 11:31 am from 3155 Hwy 7, Markham – total: $1279.16
• July 5, 2013 at 11:36 am from 3155 Hwy 7, Markham – total: $1865.63
• July 5, 2013 at 1:22 pm from 7 Curity Avenue, Toronto – total: $1803.03
• July 5, 2013 at 4:40 pm from 1706 Elgin Mills Road E., Richmond Hill – total: $1776.34
• July 5, 2013 at 4:44 pm from 1706 Elgin Mills Road, Richmond Hill – total: $1952.64
• July 5, 2013 at 5:18 pm from 15360 Bayview in Aurora – total: $2241.92
• July 5, 2013 at 5:21 pm from 15360 Bayview in Aurora – total: $1165.03 (no photo)
• July 5, 2013 at 7:22 pm from 60 Great Lakes Dr.,Brampton – total: $1804.20
• July 5, 2013 at 7:26 pm from 60 Great Lakes Dr., Brampton – total: $1705.77
• July 5, 2013 at 8:07 pm from 49 First Gulf Blvd, Brampton – total: $2271.30
• July 5, 2013 at 8:12 pm from 49 First Gulf Blvd, Brampton – total: $1405.72
• July 5, 2013 at 9:15 pm from 2375 Steeles W., Toronto – total: $2119.74
• July 5, 2013 at 9:22 pm from 2375 Steeles Ave. – total: 1552.62

[39] Mr. Khou, who testified, agrees he is man on the video with a woman, who he said was Jinya Hong. He knew her by the nickname of "Che Che", which translated meant "sister". Mr. Khou explained that sometimes he drove people to casinos or bus stations and Ms. Hong was one of those people. The people often asked Mr. Khou to keep their personal documents and cheques. Mr. Khou said when he deposited the cheque he did not read the name on the cheque, and he did not know if Jinya Hong was associated with Wynh Anh Renovations.

[40] When police executed a search warrant at Mr. Khou's home on September 26, 2013, cheques from "Wynh Anh Renovations", which were from the same chequing account Mr. Khou deposited the $6500. Mr. Khou also had possession of cheques issued to Jinya Hong when police executed the search warrant.

[41] On August 23, 2013, CIBC Fraud Security attempted to contact Ms. Hong, but there was no answer and they were unable to leave a message. To date, no one associated with the card has complained to CIBC about unauthorized use of the card.

[42] This was not the only CIBC Visa card in the name of Jinya Hong associated with Mr. Khou. Evidence was also called about card ending in 7975 (see Exhibit 10) also associated with Jinya Hong. On the card ending 7975, there were 27 posted forced (referred) transactions for a total fraud of $53,073.13 (charged back to Home Depot). The loss to CIBC was $3858.11. The total spend on card 7975 was $54,436.52. (i.e. $50,578.41 forced Home Depot transaction amount representing $3858.11 that was the amount over credit limit) (See exhibit 3 page 29)

CARD 5204

[43] CIBC VISA card ending 5204 was registered to Hui-Ping Yang, 9 Elmartin Drive. The initial credit limit was $2500. The account was opened on March 22, 2013.

[44] The transaction history before August 2, 2013 was outlined on pages 43 and 44 of exhibit 3. In summary, it showed modest purchases such as on July 19, 2013, of a $3.39 purchase from Tim Horton's.

[45] Suddenly four cheque payments to the CIBC VISA credit card account 5204 in the name of Hui-Ping Yang were made: July 30 for $2563.00 and July 31 for $2500. Mr. Khou was seen on August 1, 2013, making a $2500 deposit at a CIBC branch in Brampton (See exhibit 3 at page 62-66). The fourth deposit for the same amount ($2500) was also made on August 1 but at another branch.

[46] The total amount of the cheques was $10,063.00, which later all turned out to be worthless. (On August 2, 2013, the cheque for $2563, was returned as "NSF" or insufficient funds. By July 31, 2013 and August 1, 2013 both of the $2500 cheques were returned NSF). As well, on July 31 someone received a cash advance of $1000; and another cash advance of $240 on August 1 st .

[47] In the meantime, beginning on August 2 until August 4, 2013, on card ending 5204 there were 26 posted/forced transactions totaling $48,798.10 plus $2,761.66 representing the amount over the initial credit limit (which was $2500). This amount was charged back to Home Depot and Home Depot was the victim because the transactions were not authorized. The total loss to CIBC was $2761.66. (see summary on page 32 of Exhibit 3)

[48] The total fraud on card 5204 between August 2 nd and 4 th , 2013, at Home Depot was as follows:

• August 2, 2013 at 7:39 am from 428 Ellesmere Rd., Toronto – total: $1417.02 (Mr. Khou with female)
• August 2, 2013 at 8:09 am from 2911 Eglinton E., Toronto – total: $1552.62 (Mr. Khou with female)
• August 2, 2013 at 9:26 am from 1000 Gerrard E., Toronto – total: $2004.62 (Mr. Khou and female)
• August 2, 2013 at 10:06 am from 101 Wicksteed in Toronto – total: $2381.99 (Mr. Khou and female)
• August 2, 2013 at 12:15 pm from 60 Grand Marshall Dr., Toronto – total: $2206.87 (Mr. Khou with one female)
• August 2, 2013 at 7:21 pm from 3155 Hwy #7, Markham – total: $1252.50 (2 females)
• August 2, 2013 at 7:38 pm from 3155 Hwy 7., Markham – total: $1554.74 (no image available)
• August 2, 2013 at 8:47 pm from 7 Curity Avenue, Toronto – total: $2049.82 (Mr. Khou with female)
• August 3, 2013 at 8:42 am from 3155 Hwy #7, Markham – total: $2070.16 (Mr. Khou and female)
• August 3, 2013 at 10:04 am from 15360 Bayview in Aurora – total: $1640.76 (Mr. Khou and female)
• August 3, 2013 at 10:07 am from 15360 Bayview in Aurora – total: $1263.79 (no image)
• August 3, 2013 at 10:08 am from 15360 Bayview in Aurora – total: $126.38 (no image)
• August 3, 2013 at 12:55 pm from 2121 St. Clair W., Toronto – total: $2047.56 (female only)
• August 3, 2013 at 3:39 pm from 825 Caledonia, Toronto – total: $2203.50 (female alone)
• August 3, 2013 at 5:32 pm from 2375 Steeles, Toronto – total: $2318.02 (no image)
• August 3, 2013 at 6:48 pm from 50 Red Maple Rd., Richmond Hill – total: $1965.07 (Mr. Khou with one female)
• August 4, 2013 at 10:57 am from 193 N. Queen in Etobicoke – total: $2292.62 (Mr. Khou with one female)
• August 4, 2013 at 12:05 pm from 2555 Bristol Circle, Oakville – total: $2144.50 (Mr. Khou and female)
• August 4, 2013 at 12:44 pm from 99 Cross Ave., in Oakville – total: $2384.59 (no image)
• August 4, 2013 at 1:41 pm from 3050 Davidson Ct., Burlington – total: $2435.01 (Mr. Khou with female)
• August 4, 2013 at 4:48 pm from 825 Caledonia, Toronto – total: $1642.93 (Mr. Khou with female)
• August 5, 2013 at 12:20 pm from 428 Ellesmere Rd., Toronto – total: $1181.39 (female only)
• August 5, 2013 at 12:56 pm from 101 Wicksteed, Toronto – total: $2849.80 (Mr. Khou with 2 females)
• August 5, 2013 at 1:01 pm from 101 Wicksteed, Toronto – total: $1579.74 (Mr. Khou with female)
• August 5, 2013 at 3:22 pm from 60 Grand Marshall Dr., Toronto – total: $2679.48 (2 females)
• August 5, 2013 at 5:44 pm from 3155 Hwy #7, Markham – total: $1552.62 (Mr. Khou and female)

[49] Attempts to contact the cardholder Hui-Ping Yang to discuss the account activity had "negative results". On August 16, 2013, CIBC blocked this credit card account as a fraud bust-out account.

[50] According to Mr. Khou, he knew Hui-Ping Yang as "Karen", who was introduced to him through a mutual acquaintance nicknamed "Lo Dai". Mr. Khou said he knew Karen was a "big gambler", and said she sold him merchandise because she needed money because she could not get cash advances from her credit cards. Mr. Khou described how he and Karen (and sometimes Karen acting alone) would go to Home Depot, they would select merchandise and Karen would pay with her credit card. Sometime the transaction did not go through immediately, and other times Mr. Khou said it did. They would leave the store and Mr. Khou said he paid Karen 80% of the total on the receipt and he would keep and re-sell the merchandise. Mr. Khou could not remember whether he deposited money for Karen because he said he did not pay attention; it was not his business, but occasionally he would do her favours. Mr. Khou could not remember how many times he went with Karen to Home Depot. He described her as being in her "30's or 40's". He agreed Karen did not have any mobility issues, which might prevent her from going to a bank, for example, on her own and depositing her own cheques.

CARD 3359

[51] CIBC MasterCard Platinum credit card ending in 3359 was listed to Thanh Nguyen at 709-415 Driftwood Avenue, in Toronto. The account was opened on August 1, 1999 and had a credit limit of $14,000.

[52] According to page 54 of Exhibit 4, on June 14, 2013, prior to the depositing of the worthless cheques, the account balance was $894.66, which was below the $14,000 credit limit. However, on May 22, 2013 a cheque for $9800.00 was deposited and another on June 12, 2013 for $6000.00. The total of the two cheques was $15,800.00, which substantially raised the "open to buy" well above the $14,000 credit limit. However, both cheques were later returned NSF.

[53] Video surveillance from a CIBC branch in Richmond Hill captured Mr. Khou depositing the $9800 cheque on May 22, 2013.

[54] According to pages 55-73 of Exhibit 4 relating to card 3359, the total purchases came to $50,111.15 together with the previous balance of $7613.62, resulted in a total loss on this card to CIBC of $63,883.63.

[55] The purchasing at the Home Depots began as follows:

• May 28, 2012 at 6:51 pm from 5975 Terry Fox Way, Mississauga – total: $128.37 (no image)
• June 13, 2013 at 10:02 am from 140 Northview Blvd, Woodbridge – total: $188.71 (Mr. Khou)
• June 13, 2013 at 11:39 am from 101 Wicksteed, Toronto – total: $618.62 (no image)
• June 13, 2013 at 11:42 am from 101 Wicksteed, Toronto – total: $754.84 (no image)
• June 13, 2013 at 12:11 pm from 1000 Gerrard E, Toronto – total: $983.10 (Mr. Khou and unknown male)
• June 13, 2013 at 12:13 pm from 1000 Gerrard E., Toronto – total: $1077.94 (Mr. Khou and unknown male)
• June 13, 2013 at 12:44 pm from 7 Curity Ave., Toronto – total: $710.76 (Mr. Khou and unknown male)
• June 13, 2013 at 12:46 pm from 7 Curity Ave., Toronto – total: $1349.75 (no image but same cashier as above)
• June 13, 2013 at 1:19 pm from 2911 Eglinton E., Toronto – total: $922.60 (Mr. Khou and unknown male)
• June 13, 2013 at 1:22 pm from 2911 Eglinton E., Toronto – total: $1309.67 (no image, but same cashier as above)
• June 13, 2013 at 1:51 pm from 428 Ellesmere in Toronto – total: $780.40 (Mr. Khou and unknown male)
• June 13, 2013 at 3:20 pm from 90 Billy Bishop Way, Toronto – total: $838.38 (Mr. Khou and unknown male)
• June 13, 2013 at 4:19 pm from 825 Caledonia in Toronto – total: $246.23 (Mr. Khou and unknown male)
• June 13, 2013 at 4:22 pm from 825 Caledonia in Toronto – total: $1645.71 (no image but same cashier as above)
• June 13, 2013 at 7:36 pm from 2375 Steeles W., in Toronto – total: $802.30 but unsuccessful see below evidence of Saira Datoo (Mr. Khou and unknown male)**
• June 14, 2013 at 2:21 pm from 825 Caledonia in Toronto – total: $732.99 (Mr. Khou and unknown male)
• June 14, 2013 at 2:25 pm from 825 Caledonia in Toronto – total: $1525.50 (no image, but same cashier as above)
• June 14, 2013 at 3:40 pm from 50 Red Maple Rd., Richmond Hill – total: $1462.59 (Mr. Khou and unknown male)
• June 14, 2013 at 3:45 pm from 50 Red Maple Rd., Richmond Hill – total: $2325.54 (no image, but same cashier as above)
• June 14, 2013 at 4:44 pm from 3155 Hwy #7, Markham – total: $1169.87 (Mr. Khou and unknown male)
• June 14, 2013 at 4:49 pm from 3155 Hwy #7, Markham – total: $2376.39 (no image but same cashier as above)
• June 14, 2013 at 8:17 pm from 470 Holland W., Bradford – total: $947.99 (Mr. Khou and unknown male)
• June 14, 2013 at 8:21 pm from 470 Holland W., Bradford – total: $2465.64 (no image, but same cashier as above)
• June 15, 2013 at 9:26 am from 140 Northview Blvd, Woodbridge – total: $211.31 (Mr. Khou)
• June 15, 2013 at 1:03 pm from 825 Caledonia, Toronto – total: $831.23 (Mr. Khou and unknown male)
• June 15, 2013 at 1:09 pm from 825 Caledonia, Toronto – total: $1853.17 (no image but same cashier as above)
• June 15, 2013 at 2:12 pm from 101 Wicksteed in Toronto – total: $664.35 (no image)
• June 15, 2013 at 2:24 pm from 101 Wicksteed in Toronto – total: $2584.31 (no image)
• June 15, 2013 at 5:17 pm from 50 Kirkham Dr., Markham – total: $1314.35 (Mr. Khou and unknown male)
• June 15, 2013 at 5:20 pm from 50 Kirkham Dr., Markham – total: $2179.00 (no image but same cashier as above)
• June 15, 2013 at 6:21 pm from 3155 Hwy #7, Markham – total: $1683.98 (Mr. Khou and unknown male)
• June 16, 2013 at 8:48 am from 140 Northview Blvd, Woodbridge – total: $189.84 (no image)
• June 16, 2013 at 9:12 am from 50 Red Maple Rd., Richmond Hill – total: $422.62 (no image)
• June 16, 2013 at 11:28 am from 50 Red Maple Rd., Richmond Hill – total: $601.99 (Mr. Khou and unknown male)
• June 16, 2013 at 11:30 am from 50 Red Maple Rd., Richmond Hill – total: $1557.80 (no image but same cashier as above)
• June 16, 2013 at 12:11 pm from 3155 Hwy #7, Markham – total: $1250.03 (Mr. Khou and unknown male)
• June 16, 2013 at 12:16 pm from 3155 Hwy #7, Markham – total: $1714.93 (no image but same cashier as above)
• June 16, 2013 at 2:36 pm from 15360 Bayview, Aurora – total: $935.95 (Mr. Khou and unknown male)
• June 16, 2013 at 2:39 pm from 15360 Bayview, Aurora – total: $2870.20 (no image but same cashier as above)
• June 16, 2013 at 4:18 pm from 470 Holland W., Bradford – total: $1078.34 (Mr. Khou and unknown male)
• June 17, 2013 at 9:09 pm from 49 First Gulf Blvd., Brampton – total: $1102.85 (Mr. Khou and unknown male)
• June 17, 2013 at 9:11 pm from 49 First Gulf. Blvd., Brampton – total: $583.08 (no image, but same cashier as above)
• June 17, 2013 at 9:46 pm from 1983 Kipling, Etobicoke – total: $1080.83 (Mr. Khou and unknown male)
• June 17, 2013 at 9:48 pm from 1983 Kipling, Etobicoke – total: $16.99 (no image but same cashier as above)
• June 17, 2013 at 5:00 pm from 50 Red Maple Rd., Richmond Hill – total: $749.19 (Mr. Khou and unknown male)
• June 17, 2013 at 5:02 pm from 50 Red Maple Rd., Richmond Hill – total: $507.37 (no image, but same cashier as above)

[56] For all of these transactions, there was only one cashier who raised questions and challenged what was going on and her name was Saira Datoo.

(c) Saira Datoo**

[57] The Crown called Saira Datoo, the cashier who processed Mr. Khou's transaction on June 13, 2013 at 7:36 pm at register 2 at 2375 Steeles Avenue West. The video shows Mr. Khou was accompanied by another male.

[58] Ms. Datoo had worked as a Home Depot cashier for nine years. She was a very experienced and confident cashier. She identified herself from the videotape marked Exhibit #23 at the trial (corresponding to Exhibit 4 at page 13). Ms. Datoo was very familiar with the "chip and PIN" transaction whereby the customer inserted the credit card and then inputted the PIN number in order for the purchase to go through.

[59] At 7:36:54, the video shows Ms. Datoo serving two men: one wearing a beige hat, and Mr. Khou in a black hat. Ms. Datoo is seen processing two separate orders for the men: the first order was for two faucets. The second order, according to the video, was for some wire. The man in the beige hat is seen inserting a credit card into the PIN terminal and then removing it. According to Ms. Datoo she is familiar with this type of transaction, which she said she had done hundreds of thousands of times.

[60] According to Ms. Datoo, watching her interaction with the man with the credit card who was pointing to the back of the credit card, the witness said the terminal was not reading the card and the man handed her the card. Ms. Datoo also recognized the computer screen that gave the alert "Referral Call for Credit Authorization". In watching the video, Ms. Datoo said it appeared that she turned over the back of the credit card and entered what she assumed was the 3 digit CVV or security code. A receipt and a "slip" or "signing slip" came out of the terminal, which Ms. Datoo testified is what happens when the transaction is done manually. Ms. Datoo said if a transaction is processed through a credit card without a PIN number, the customer signs the pad. If a PIN number is used, then a receipt is produced.

[61] In the case of the June 13 video, Ms. Datoo said she appears to check the receipt and the credit card and she realized the card number and the receipt number did not match. According to Ms. Datoo, she recalled the two men telling her to process the order, but she told them there was something wrong with the number and she needed to call her manager. In watching the video, Ms. Datoo said both men were speaking to her including the man in the "black hat", who the court recognizes as Mr. Khou.

[62] Ms. Datoo recognized from the video her supervisor coming over to inspect the terminal. The manager "post-voided", i.e. canceled the transaction and the terminal printed a slip putting the credit back on to the card. Ms. Datoo recognized from the video her re-scanning the same two items. Mr. Khou is seen gesturing to her. Ms. Datoo said she remembered the men wanted her to process the order and they wondered why it was taking so long. Again the video showed the other man attempting to pay for the merchandise with the card and PIN. The video also showed Ms. Datoo making a telephone call she said to credit services. Ms. Datoo recalled this was the second time the transaction was not processed. In watching the video, Ms. Datoo could not tell if the screen read "Call for Credit Authorization" or "Decline". The video showed Ms. Datoo speaking to Mr. Khou. The video showed Ms. Datoo appearing determined not to simply let the transaction go through. She recalled telling the gentleman she had to call because the transaction was not going through

[63] What began at 7:36 pm the video now showed it was 7:45 pm. At 7:46:33, Ms. Datoo is seen passing the card back to Mr. Khou's associate. On screen both men are very animated, while Ms. Datoo points to the terminal screen. By 7:48:05, the video shows the men leaving without the merchandise.

[64] Attempts to contact cardholder Thanh Duc Nguyen to discuss the account activity on the CIBC MasterCard credit card had negative results.

[65] According to Mr. Khou, Thanh Duc Nguyen was another of the individuals who came to him because they knew he needed merchandise to sell. Mr. Khou explained why he and Mr. Nguyen would often buy from more than on Home Depot on the same date. He said Home Depot would have an "inventory problem", which meant a particular store would not have enough of the items he wanted to buy so they would have to go to a second or third store.

[66] Thanh Duc Nguyen is also associated with another CIBC card ending in 3717, whose transactions I will review in a moment. Mr. Khou agreed he deposited a cheque for $15,000 for Mr. Nguyen into the bank account associated with this account. Mr. Khou said Mr. Nguyen needed cash, which is why he bought the Home Depot merchandise and then sold it back to Nguyen for 80% of the total cost. When the crown asked Mr. Khou whether he asked Mr. Nguyen why he would not just simply withdraw the money from his own account because evidently he had $15,000 in his account, Mr. Khou said he did not ask. As he often repeated throughout the trial, Mr. Khou explained that he did not ask "personal" questions from the people, who came purportedly to sell him Home Depot merchandise. Mr. Khou repeated that if someone owed money to a bank then it was not his responsibility to pay because it was not his account. Mr. Khou said it was the cardholder who was responsible for the debt on the card and since he was not the cardholder, he was not responsible.

[67] Lastly, when police executed their search warrant, Mr. Khou had a collection of financial documents relating to Thanh Duc Nguyen and/or Thanh Nguyen including but not limited to Exhibit 4 at page 87 (a copy of cheque #35, one of the worthless cheques in the amount $6000 which artificially raised the credit card limit). Police also found cheque #37 made payable to a "Thai Nguyen" for $500 (See Exhibit 22C at page 48). According to witness Michael O'Malley, an investigator with the Investigative and Security Services (Corporate Security) with the Bank of Montreal these two cheques were from the same account and he explained how he knew. There were other financial documents in Mr. Khou's possession relating to Mr. Nguyen when he was arrested, which I will review momentarily.

CARD 2974

[68] CIBC Visa Dividend credit card ending in 2974 was listed to Zhanpeng Huang, at 55 Chiefswood Square in Scarborough. The account was opened on April 1, 2011 and had a credit limit of $2500. (See Exhibit 5)

[69] The balance on the Visa statement before the depositing of the worthless cheques was $2129.12. Prior to August 20 th , spending had been modest and included purchases on August 9, 2013 at Future Shop ($89.61), August 11, 2013 at Fido ($150), Petrocan ($102.21 and $17.67) for a total of $359.49. Together with the previous balance of $2129.12, the Visa account balance was still below the $2500 limit.

[70] Starting on August 20, 2013, a total of 6 cheque payments were made to the CIBC Visa credit card account totaling $15,000 (see pages 21 to 27 of exhibit 5). All of the cheques were later returned NSF.

[71] One of those cheques was for $2500 on the account of "ZH Renovations, 61 Shepton Way, Scarborough". When police later executed a search warrant at Mr. Khou's residence, they found a series of cheques in the same name "Z.H. Renovations" listing the same address (as well as numerous other financial records issued to variations of Zhan Peng Huang or Zhenpeng Huang). According to witness Michael O'Malley with corporate security at BMO the ZH Renovation cheques were issued from the same account.

[72] Mr. Khou was captured on bank security cameras making at least two of the six deposits: on August 21, 2013 at 11:22 am he deposited a cheque at 2300 Lawrence Avenue East. Another unidentified male was also recorded on video depositing money to the same account on August 21 st , but at a bank in Richmond Hill.

[73] In total there were 19 posted forced (referred) transactions totaling $34,132.88 to Home Depot. There were also cash advances and original balance owing on the card. The total spend was $34,132.88 of forced Home Depot transactions plus $3992.70 amount over the credit limit; for the final account balance totaling $39,125.58.

[74] Pages 1 through 20 of exhibit 5 detail the Home Depot dates, times, locations and losses to the various stores relating to card 2974. The transactions followed the same pattern as previously noted on the other credit cards:

• August 23, 2013 at 2:37 pm from 1201 Castlemore, Markham – total: $2004.62 (Unknown male and female)
• August 23, 2013 at 3:16 pm from 3155 Highway 7, Markham – total: $2332.32 (Unknown male and female)
• August 23, 2013 at 3:58 pm from 1706 Elgin Mills Rd. E., Richmond Hill- total: $2557.09 (Unknown male and female)
• August 23, 2013 at 4:33 pm from 15360 Bayview Ave., Aurora – total: $3109.76 (Unknown male and female)
• August 23, 2013 at 7:37 pm from 2121 St. Clair W., Toronto – total: $2653.15 (Mr. Khou and female)
• August 24, 2013 at 10:09 am from 101 Wicksteed Ave., Toronto – total: $2641.83 (Mr. Khou and female, who Mr. Khou identified was a different "Che" aka "sister", who was introduced to him through the "gambler" – see exhibit 5, page 18)
• August 24, 2013 at 10:44 am from 1000 Gerrard E., Toronto – total: $1454.25 (Mr. Khou with an unknown male and female)
• August 24, 2013 at 10:46 am from 1000 Gerrard E., Toronto – total: $1563.89 (Mr. Khou with an unknown male and female)
• August 24, 2013 at 9:29 am from 428 Ellesmere, Toronto – total: $2714.24 (Mr. Khou and unknown male)
• August 24, 2013 at 2:29 pm from 90 Billy Bishop Way, Toronto – total: $1170.68 (Unknown male and female)
• August 24, 2013 at 2:31 pm from 90 Billy Bishop Way, Toronto – total: $1487.08 (Unknown male and female)
• August 24, 2013 at 4:13 pm from 2121 St. Clair W., Toronto – total: $654.27 (Unknown male and female)
• August 24, 2013 at 4:14 pm from 2121 St. Clair W., Toronto – total: $2109.66 (Unknown male and female)
• August 24, 2013 at 5:05 pm from 1983 Kipling, Etobicoke – total: $395.48 (Unknown male and female)
• August 24, 2013 at 5:07 pm from 1983 Kipling, Etobicoke – total: $2140.22 (Unknown male and female)
• August 25, 2013 at 10:25 am from 428 Ellesmere Rd., Toronto – total: $1218.14 (Unknown male and female)
• August 25, 2013 at 10:27 am from 428 Ellesmere Rd., Toronto – total: $1406.68 (Unknown male and female)
• August 25, 2013 at 1:18 pm from 1706 Elgin Mils Rd. E., Richmond Hill – total: $689.28 (Unknown male and female)
• August 25, 2013 at 4:35 pm at 428 Ellesmere Road, Toronto – total: $344.62 (Unknown male and female)
• August 25, 2013 at 4:37 pm at 428 Ellesmere Road, Toronto – total: $2172.90 (Unknown male and female)

[75] According to Mr. Khou, the man with him on the August 24, 2013 at 10:44 am (See exhibit 5 at page 8) was "Lov Tao". The female the two men were with, Mr. Khou referred to her as "sister" or "che". Mr. Khou said he met "sister" through "Lov Tao", who called him and asked him if wanted to buy merchandise from "sister". Mr. Khou said yes. Mr. Khou repeated that he would select the Home Depot products, "sister" would pay for them on her credit card, and he would buy back the merchandise for 80% of the discounted price.

[76] When Mr. Khou was asked how he ended up with cheques belonging to "ZH Renovations" Mr. Khou said he did not know. When asked if the company name related to the cardholder's name being "Zhanpeng Huang", again he said he did not know. Mr. Khou did not remember if he helped to open a bank account for this person. Mr. Khou also did not remember making a bank deposit for this person. Mr. Khou said he did not recall whether the cheque he deposited belonged to a male or female. All he knew was that someone asked him to make a deposit, so he did, and then he returned and gave the card back to the owner. He said the Court should ask the owner of the cheques these questions.

[77] Mr. Khou was also found to be in possession of an RBC Royal Bank Business Client Card in the name of "Zhan Peng Huang" (see Exhibit 22C at page 40) during the execution of the search warrant.

CARD 1724

[78] CIBC Visa card ending in 1724 was issued to Hui Lan Luo at 2910-50 Brian Harrison Way. The credit limit was $3500. Worthless cheques were deposited totaling $7000. A total of $6970.88 purchases were made including cash advances ($100 and $20). (See Exhibit 6)

[79] Four Home Depot purchases were made on July 16, 2013 at 11:19 am, 2:24 pm, 6:15 pm and 6:47 pm. Mr. Khou and a female were present during all of the purchases.

[80] According to Mr. Khou, he knew the woman as Lan Luo, which translated meant "beautiful person". Again, Mr. Khou said he was introduced to her through the old man, Lov Dao. Mr. Khou assumed they were both gamblers because they knew each other. Mr. Khou testified she called him; said she had a credit card; he could use it to buy merchandise; and she would sell the merchandise back to him at a discounted price.

[81] Mr. Khou was shown page 21 of Exhibit 6 and was asked if recognized the handwriting for a cheque written on the account of "Hui Lan Luo" for $3500 (one of the NSF cheques). Mr. Khou said he did not know if he wrote the cheque, but that it was best to ask the owner of the cheque.

CARD 1953

[82] This CIBC MasterCard Platinum credit card account was listed to Hui Lan Luo at the same address of 2910-50 Brian Harrison Way. The credit limit was $3700. The account had been opened since September 12, 2006. The balance on the MasterCard statement prior to the worthless cheque deposits as of July 14, 2013 was $3423.79, which was $276.21 below the $3700 credit limit (see Exhibit 7, page 41).

[83] Two cheque payments to the CIBC MasterCard each in the amount of $3700 were made for a total of $7000, which were later returned NSF. The Crown did not call evidence connecting Mr. Khou to depositing the cheques. However, when asked, Mr. Khou said he could not recall if he made the deposits because whenever anyone asked him to make a payment, he would. Mr. Khou said in order to be sure, the Court should ask the cardholder.

[84] In total, 39 forced (referred) transactions from Home Depot stores were made for a total of $64,072.52 on the following dates, where on all but one, Mr. Khou is captured on video. As well, there were several declined transactions, which did not post to the account.

• July 12, 2013 at 12:15 pm, 12:18 pm (in Richmond Hill), 12:54 pm (in Markham) 2:39 pm, 2:42 pm, 2:50 pm, 3:52 pm and 3:55 pm (now in Scarborough), 4:29 pm and 4:32 pm (now in Pickering), 5:29 pm and 5:33 pm (now in Ajax), and 8:56 pm, 9:01 pm (ending in Woodbridge)
• July 13, 2013 at beginning in Scarborough at 8:16 am, 8:19 am, 9:00 am, 9:55 am, 9:59 am, 1:51 pm and 1:53 pm (now in Oakville), 4:23 pm (now in Brampton), 4:25 pm, 5:11 pm, 5:15 pm
• July 14, 2013 at 1:16 pm (in Markham – no image captured), 2:36 pm, 2:40 pm, 3:33 pm and 3:36 pm (now in Scarborough), 4:57 pm (now in Whitby), 5:00 pm, 5:42 pm (ending in Oshawa)
• July 15, 2013 beginning in Toronto at 8:57 am, 9:42 am, 6:36 pm (now in Kitchener), 6:39 pm, 7:26 pm, 7:30 pm

[85] In all of the videos and screen shots of the above transactions, Mr. Khou is seen with a female, who Wayne King, the Central Investigator for the Organized Retail Crime Department at Home Depot identified as "Luo" although he could not remember how he got that name.

[86] Attempts to contact the card holder Hui Lan Lao resulted in negative results.

[87] According to Mr. Khou, he knew Lan Lou through the "old man". The Crown referred Mr. Khou to exhibit 7, page 6, a purchases made on July 12, 2013 at 8:56 pm, at the Woodbridge Home Depot. Mr. Khou claims that he was not paying attention to what she was doing because she paid for the merchandise. As well, Mr. Khou said he did not speak or understand English very well.

CARD 3354

[88] CIBC Visa Aerogold credit card ending in 3354 was listed to Thanh Thi Trieu. The account had been opened since August 1, 2009. The account had a credit limit of $10,000. Prior to the depositing of the worthless cheques, the Visa statement dated June 8, 2013 was $9,962.16. The Visa account balance was $37.84 below the $10,000 credit limit (See Exhibit 9 at page 15-16).

[89] Prior to the first two worthless cheque payments that were posted to the account on June 4 and June 6, there had been one posted transaction on June 8, 2013 for a $20.00 cash advance. On June 4 and 6 th , payments were made of $6000 and $6500 and subsequently increased activity on June 4 and 5 th including 6 - $1000 cash advances. A third cheque was deposited for $3900. The total of the three cheque payments of $16,400 was made. This substantially raised the open to buy credit limit well above $10,000. All three cheques were later returned NSF.

[90] In total 14 forced (referred) transactions were not authorized for a total of $13,025.06, which was charged back to Home Depot and an additional $6,973.24 (balance of $16,973.24 minus the credit limit of $10,000), which is owed to CIBC.

[91] The 14 forced (referred) transactions all occurred on June 10, 2013 and Mr. Khou was seen on video for everyone except where noted:

• June 10, 2013 at 12:30 pm (Richmond Hill), 12:59 pm (Markham), 2:01 pm (Richmond Hill); 2:23 pm, 3:08 pm, and 3:40 pm (from 3 different stores in Toronto); 6:10 pm and 6:39 pm (two different stores in Brampton – no image captured for either time); 7:11 pm (Mississauga – no image captured); 7:46 pm (Etobicoke); 8:35 pm and 8:37 pm (a different store in Etobicoke), 9:14 pm and 9:15 pm (Woodbridge)

[92] Exhibit 18 is a Google Map outlining the various locations Mr. Khou and a female used the card on June 10, 2013.

[93] Mr. Khou testified the woman told him her name was "Hoang" (spelled by the Cambodian interpreter as Mr. Khou said he can only write in Chinese). Mr. Khou said that the Court would have to ask her how she knew of him, but guessed that Hoang came to know about him because he does repairs and renovations, and people know that he needs merchandise for his work. He did not recognize the name "Mrs. Thanh Thi Trieu". Mr. Khou could not remember if he deposited cheques for this person. Mr. Khou said for him it was all "very simple": as he put it, "If I go somewhere, or someone asks me to do something so long as it is legal, I have no problems with it".

CARD 7975

[94] CIBC Visa Dividend credit card ending in 7975 was listed to Jinya Hong. The account was opened January 12, 2012 and had a credit limit of $3500. Prior to the depositing of the worthless cheques, the Visa statement dated July 20, 2013 was $3412.97, which was $87.03 below the $3500.00 credit limit. (See Exhibit 10 at page 30).

[95] Since that date, there were a total of 3 cheques payments to the credit card account in the name of Jinya Hong: $3500.00 cheques were deposited on July 2, 2013 and two on July 4, 2013 for a total of $10,500.00 substantially raising the open to buy above the $3500.00 credit limit. Jinya Hong was also the named card holder of credit card ending in 2668 (see above in this judgment beginning at paragraph 33, which was used on July 4 and 5, 2013 for purchases totalling $50,578.41 charged to Home Depot)

[96] Exhibit 10 at page 57 were copies of the cheques drawn on the account of "Wynh Anh Renovation, 28 Emerson Ave., Toronto", numbered #0171, #0173 and #0174. The cheques were later returned "Account Closed" and were worthless. When police executed a search warrant at Mr. Khou's residence, they located a cheque #0176 in same name Wynh Anh Renovation.

[97] In total there were 27 forced transactions between July 6-8, 2013, totalling $50,578.41 which were charged back to Home Depot together with $3858.11, which is the amount over the credit limit for a final account balance of $54,436.52.

[98] (As well, as previously reviewed, Jinya Hong was also the name issued to card ending in 2668 (See Exhibit 1), where the total loss on that card was $50,578.41 on July 4 and 5, 2013).

[99] The forced transactions on card 7975 occurred on the following dates:

• July 6, 2013 at 9:37 am from 428 Ellesmere Rd., Scarborough – total: $1639.60 (no image)
• July 6, 2013 at 9:42 am from 428 Ellesmere Rd., Scarborough – total: $1552.62 (no image)
• July 6, 2013 at 10:57 am from 7 Curity Avenue, Toronto – total: $2397.86 (Mr. Khou and female)
• July 6, 2013 at 11:03 am from 7 Curity Avenue, Toronto – total: $1452.05 (Mr. Khou and female)
• July 6, 2013 at 3:17 pm from 1201 Castlemore Ave., Markham – total: $1792.49 (Mr. Khou and female)
• July 6, 2013 at 3:20 pm from 1201 Castlemore Ave., Markham – total: $1490.06 (Mr. Khou and female)
• July 6, 2013 at 3:25 pm from 1201 Castlemore Ave., Markham – total: $52.24 (Mr. Khou and female)
• July 6, 2013 at 5:03 pm at 50 Red Maple Rd., Richmond Hill – total: $2463.25 (Mr. Khou and female)
• July 6, 2013 at 5:09 pm at 50 Red Maple Rd., Richmond Hill – total: $1163.90 (Mr. Khou and female)
• July 6, 2013 at 7:52 pm from 49 First Gulf Blvd., Brampton – total: $2725.56 (no image)
• July 6, 2013 at 7:58 pm from 49 First Gulf Blvd., Brampton – total: $1480.24 (Mr. Khou and female)
• July 7, 2013 at 11:03 am from 60 Grand Marshall Dr., Scarborough – total: $1655.45 (Mr. Khou and female)
• July 7, 2013 at 11:05 am from 60 Grand Marshall Dr., Scarborough – total: $2307.40 (Mr. Khou and female)
• July 7, 2013 at 11:34 am from 1105 Kingston Road, Pickering – total: $2504.08 (Mr. Khou and female)
• July 7, 2013 at 1:34 pm from 1700 Victoria St. E., Whitby – total: $1968.46 (Mr. Khou and female)
• July 7, 2013 at 1:34 pm from 1700 Victoria St. E., Whitby – total: $1728.90 (Mr. Khou and female)
• July 7, 2013 at 1:54 pm from 3155 Highway 7, Markham – total: $2574.14 (Mr. Khou and possibly another person – unclear)
• July 7, 2013 at 3:11 pm from 4200 Garden St., Brooklin – total: $3268.04 (Mr. Khou and female)
• July 7, 2013 at 3:59 pm from 255-260 Kingston Rd., Ajax – total: $3548.09 (no image)
• July 7, 2013 at 5:12 pm from 428 Ellesmere Rd., Scarborough – total: $2680.36 (Mr. Khou and possibly another person – unclear)
• July 7, 2013 at 5:17 pm from 428 Ellesmere Rd., Scarborough – total: $815.59 (Mr. Khou and possibly another person – unclear) (See evidence summary of crown witness Denver Sanmuganatham who identified this item as a Home Depot product based on its Universal Product Code – UPC)
• July 7, 2013 at 7:17 pm from 140 Northview Blvd., Woodbridge – total: $1713.94 (Mr. Khou and female)
• July 7, 2013 at 7:23 pm from 140 Northview Blvd., Woodbridge – total: $1544.71 (Mr. Khou and female)
• July 8, 2013 at 9:49 am from 15360 Bayview, Aurora – total: $2409.91 (Mr. Khou and female)
• July 8, 2013 at 9:54 am from 15360 Bayview, Aurora – total: $1841.90 (Mr. Khou and female)
• July 8, 2013 at 1:15 pm from 140 Northview Blvd., Woodbridge – total: $1139.96 (Mr. Khou and female)
• July 8, 2013 at 1:19 pm from 140 Northview Blvd., Woodbridge – total: $1656.56 (Mr. Khou and female)
• July 8, 2013 at 5:42 pm from 50 Red Maple Rd., Richmond Hill – total: $1558.01 (Mr. Khou and female)

[100] Attempts to contact Jinya Hong to discuss the account activity had negative results.

[101] To repeat, according to Mr. Khou the "gambler" introduced Jinya Hong to him and he bought merchandise the same way as before. He was asked about depositing cheques written on Wynh Anh Renovations into Ms. Hong's account: Mr. Khou said he did not notice the name on the cheques was different than Ms. Hong's name. Mr. Khou said the Court would have to ask Ms. Hong about the discrepancy. Mr. Khou said Ms. Hong was one of the people he would offer rides to the casinos. Her nickname was "Che Che", which translated meant "sister". He did not know how he ended up with her cheques, but said when people asked him to keep their cheques, he would. An alternative explanation was that people would just leave their cheques in his car. Mr. Khou said he did not find it unusual that people would leave their cheques in his car because as he put it, "….all of the paper or cheques are legitimate so I was just keeping them ….they asked me to keep for them so I keep them. 100% no cheating or ripping off things. These documents and cheques have their owners".

[102] When police executed the search warrant in September 2013, cheques in the name of Jinya Hong were found in Mr. Khou's home.

(d) Victor Gill – Vice President of Security and Investigations for Citigroup:

[103] Mr. Gill testified he is a senior security investigator employed by Citigroup investigating credit card fraud perpetrated against Citi Cards Canada. Citibank provides credit to the private label "Home Depot". A private label card is called a "branded card" even though the credit card is provided by a bank. Customers can apply on line or in a Home Depot store by filling out a credit application and then Citibank approves it. Once approved and the credit card is issued, their cards did not require a chip or have PIN technology. A customer merely had to swipe their card and sign for the merchandise.

CARD 3717

[104] This account was a Home Depot private label credit card account issued to Thanh Nguyen with an address of 709-415 Driftwood Avenue, Toronto. The account was opened in May 2013. When police executed the search warrant at Mr. Khou's home on September 16, 2013, they located this card (see Exhibit 22C at page 47 and many other personal financial documents in this name).

[105] In viewing the banking and transaction history of card ending in 3717, Mr. Gill testified the credit limit on the card was $12,500.00. Mr. Gill testified if there is a payment over the balance owing, then the bank extends further credit. So, for example, if a person pays over the $12,000 then that amount is no longer the credit ceiling. Payment can be made either by cash or cheque. The policy between Citibank and Home Depot was that cheques were honoured immediately even though it would take 2-3 weeks before it was determined that the cheque was actually good or not.

[106] In the case of card 3717, on May 21, 2013, cheques totalling $15,000 were deposited and all ended up being returned NSF. However, immediately after the cheques were deposited the credit on that card was extended to $15,000.

[107] Meantime, the following transactions occurred on the card 3717 (see exhibit 12):

• May 9, 2013 at 1:15 pm from 50 Kirkham Dr., Markham – total: $8369.98 (Unknown male)
• May 10, 2013 – at 8:33 pm from 5975 Terry Fox Way, Mississauga – total: $394.36 (Unknown male and female)
• May 13, 2013 at 2:48 pm from 140 Northview Blvd., Woodbridge – total: $3306.82 (no image)
• May 13, 2013 at 4:32 pm from 90 Billy Bishop Way, Toronto- total: $326.56 (2 Unknown males)
• May 16, 2013 at 8:08 pm from 140 Northview Blvd., Woodbridge – total: $68.88 (Unknown male)
• May 19, 2013 at 3:26 pm from 49 First Gulf Blvd., Brampton – total: $5.07 (no image, but signature)

Deposit: May 21, 2013 at 9:49 am at 2375 Steeles Avenue West, Toronto – Deposit by cheque of $5000 (Mr. Khou agrees he made this deposit)

• May 21, 2013 at 10:49 am from 140 Northview Blvd., Woodbridge – total: $748.06 (Mr. Khou alone and signature)
• May 21, 2013 at 11:29 am from 50 Red Maple Rd., Richmond Hill – total: $777.44 (Mr. Khou alone and his signature)
• May 21, 2013 at 11:57 am from 3155 Highway 7, Markham – total: $502.85 (Mr. Khou on video and his signature)

Deposit: May 21, 2013 at 2:01 pm at 428 Ellesmere Rd., Scarborough – Deposit by cheque of $5000.00. (Mr. Khou agreed he made this deposit)

• May 21, 2013 at 3:28 pm from 90 Billy Bishop Way (Yorkdale Mall), Toronto – total: $3502.29 (Mr. Khou and 2 males, but Mr. Khou did not swipe or sign for the items).
• May 21, 2013 at 4:44 pm from 2121 St. Clair Ave. W., Toronto – total: $4065.72 (Mr. Khou and 2 males, but Mr. Khou does not sign for the items)

Deposit: May 21, 2013 at 5:19 pm at 825 Caledonia Rd., Toronto – Deposit by cheque for $5000 (Mr. Khou agreed he made the deposit and an image of him recorded on video (see Exhibit 12 at page 15).

[108] Mr. Khou was asked about card 3717. He said as with the other cards, when someone wanted to sell something, he would go with them to buy it. Mr. Khou agreed that in some instances, he was buying items alone. Mr. Khou struggled in cross examination remembering who card 3717 belonged to. He said that a Vietnamese guy gave him the card so he could go and buy. Afterwards, as with the other cards, Mr. Khou said he bought the merchandise and was given the receipt. He could not remember if Mr. Nguyen was one of the "gamblers", but agreed the man wanted money quickly. Mr. Khou said again he paid 80% of what was the $9000 he personally spent using Mr. Nguyen's card on May 21 st (so a discount of approximately $1600) and he said he was given the receipt and the merchandise. Mr. Khou emphasized that no one had ever made a complaint about him and said the Crown was asking the wrong person for explanations.

[109] Mr. Khou did not know when Mr. Nguyen had contacted him or whether it was even on May 21, 2013. Mr. Khou said Nguyen gave him the card because he trusted him because Mr. Khou was honest. Mr. Khou said if there was a problem with the card, then Mr. Nguyen would have come to him and he had not.

[110] The Crown suggested that Mr. Khou forged Mr. Nguyen's signature when signing for the merchandise. Mr. Khou said "no" that whenever he signed for someone else's card, he had the owner's permission and that he signed his own name. When the Crown suggested that the name Mr. Khou signed looked very similar to the way other individuals signed on the same card on different dates, Mr. Khou disagreed. Mr. Khou pointed out that none of the owners have complained about him and that all of the cards were lawfully issued to people, who should be asked these questions not him.

[111] Mr. Khou repeated he went to different stores often on the same days because of inventory problems.

[112] When asked about the deposits, Mr. Khou said the "Vietnamese fellow" wrote a cheque and asked him to deposit it for him. When asked why would Mr. Nguyen ask him to deposit $15,000 into his account, Mr. Khou said the Crown needed to ask Mr. Nguyen. Mr. Khou said when the Home Depot cashier asked him if the account was his, he said "no, and that he was depositing it for a friend". Sometimes the cashier would ask for identification, but other times they would not. Mr. Khou said he believed the owner had $15,000 in an account otherwise he would not have made the payments.

[113] Initially Mr. Khou said he did not know anything about Mr. Nguyen, but later in his cross examination, Mr. Khou said he learned that he was a "rich guy" because he had his own business and lived in a house worth $2 million. The crown asked Mr. Khou that if he thought Mr. Nguyen was rich and had $15,000 to deposit, why then would Mr. Nguyen need fast cash? Mr. Khou repeated that the question ought to be put to Mr. Nguyen.

[114] The crown also attempted to have Mr. Khou answer why he would not expect Mr. Nguyen to take a cash advance on his own credit card. Again, Mr. Khou said the Crown should be asking Mr. Nguyen. When the Crown repeated the question, Mr. Khou said it was not his place to ask these people questions. When the Crown suggested that most people would simply go to their banks and withdraw money from their accounts, Mr. Khou said people have personal business problems, which were none of his business. He repeated that it is the cardholder's responsibility to re-pay the bank and nothing to do with him, and he had no right to ask the cardholder or the account holder any questions.

[115] Mr. Khou testified he once had tried asking "Lov Tao" about his losing money selling the merchandise to Mr. Khou at a discount. Mr. Khou said Lov Tao told him, "It is my own credit that I have to pay. You have no business to ask me about that". From then on, Mr. Khou said he never asked any questions of Lov Tao or anyone else who wanted him to buy merchandise including Mr. Nguyen.

[116] I review momentarily the extensive number of personal financial documents in the name of Thanh Duc Nguyen and Thanh Nguyen found in Mr. Khou's home.

CARD 0314

[117] Victor Gill from Citibank also testified about Citibank card ending in 0314 (see exhibit 11). At page 24 of Exhibit 11, Mr. Gill testified this Home Depot private label card was issued to Duc Nguyen, who listed his address as 709-415 Driftwood Ave., Toronto, which I note was the same address for "Thanh Nguyen" for Citibank card ending in 3717 (See Exhibit 11).

[118] The original credit limit was $12,500 and again three cheques were deposited into the account which increased the credit limit until it was discovered the cheques were all NSF. Two cheques were deposited on May 21, 2013 for $4000 and $5000; and a third cheque deposited on May 22, 2013 for $4000 for a total of $13,000, which was honoured immediately plus the original credit limit.

[119] Card 0314 was used on the following dates and times:

Payment on March 15, 2012 at 9:09 am at 2375 Steeles W., Toronto – payment of $418.26 by cash

• April 26, 2012 at 8:54 am from 2121 St. Clair W., Toronto – total $14.48 (no image)
• May 7, 2013 at 12:32 pm from 140 Northview Blvd., Woodbridge – total: $13.53 (Unknown male)
• May 10, 2013 at 5:59 pm from 2121 St. Clair W., Toronto – total: $2905.23 (no image)
• May 13, 2013 at 4:29 pm from 90 Billy Bishop Way, Toronto – total: $1488.52 (Two unknown males)
• May 15, 2013 at 4:13 pm from 5975 Terry Fox Way, Mississauga – total: $218.57 (Unknown male)
• May 16, 2013 at 12:23 pm from 90 Billy Bishop Way, Toronto – total: $442.95 (Unknown male)
• May 16, 2013 at 7:58 pm from 140 Northview Blvd., Woodbridge – total: $30.79 (2 Unknown males)

Deposit – May 21, 2013 at 5:58 pm at 90 Billy Bishop Way, Toronto – deposit total: $5000 cheque (Mr. Khou seen on video)

• May 21, 2013 at 6:44 pm from 140 Northview Blvd., Woodbridge – total: $2008.00 (Mr. Khou and unknown male)
• May 21, 2013 at 7:21 pm from 50 Red Maple Rd., Richmond Hill – total: $1000.03 (Mr. Khou and unknown male)
• May 21, 2013 at 7:35 pm from 50 Red Maple Rd., Richmond Hill – total: $162.72 (Mr. Khou and unknown male)
• May 21, 2013 at 7:58 pm from 3155 Highway 7, Markham – total: $715.29 (Mr. Khou and unknown male)
• May 21, 2013 at 8:41 pm from 1706 Elgin Mills Rd. E., Richmond Hill – total: $2002.36 (two unknown males)

Deposit - May 21, 2013 at 8:15 pm at 3155 Highway 7, Markham – Deposit total: $4000 (Mr. Khou as seen on video)

• May 21, 2013 at 9:20 pm from 2375 Steeles W., Toronto – total: $1897.25 (no image)
• May 21, 2013 at 9:24 pm from 2375 Steeles W., Toronto – total: $89.25 (no image)

Deposit - May 22, 2013 at 8:40 am at 2121 St. Clair W., Toronto – Deposit total: $4000 (no image, according to witness Wayne King, the video no longer existed – see Exhibit 11 at page 21)

[120] According to page 26 of Exhibit 11, the total loss to Citigroup on the two accounts ending in 3717 and 0314 was $35,859.40.

[121] Mr. Gill agreed it was possible that "Thanh Nguyen" and "Duc Nguyen" were the same person because the same address was provided. He said Citibank tried to get a hold of the cardholder with no success and no one complained about the charges to the card.

[122] Mr. Gill agreed with both amicus and Mr. Khou in cross-examination: that the person or persons named on the cards were the individuals liable for the loss, subject to the account being opened fraudulently.

[123] As mentioned, when police executed a search warrant at Mr. Khou's home on September 16, 2013, they located a copy of a Home Depot credit card bill addressed to Duc Nguyen at 709-415 Driftwood Avenue for then a total of $12,960.96 with a statement date of June 8, 2013.

(e) Mr. Khou's Arrest:

[124] On September 16, 2013, Detective Karen Chapman 54 Division, was detailed to conduct surveillance at #9-374 Driftwood Avenue in Toronto. At 10:44 AM Mr. Khou was seen at the address having a cigarette on the front steps. Later that day, PC Jason Onami from the Financial Crimes Unit continued the surveillance and he saw Mr. Khou loading boxes into a black Mercedes Benz. Constable Onami stopped Mr. Khou as he drove away and arrested him on September 16, 2013.

[125] At 11:10 am, a search warrant was executed at the residence. It is not disputed that Mr. Khou lived in the basement of the house he shared with his adult daughter and her family. Exhibit 21B are photographs taken of the property seized from the address. Exhibit 29 is a catalogue of the merchandise seized which included:

• 20 Pasadena chrome tub/shower heads
• 15 Pfister Kamato faucets
• 1 Pasadena 8" Widespread Chrome faucet
• 1 Pfister Ashfield showerhead
• 15 Delta Lahara showerheads (exclusive to Home Depot)
• 14 Delta Lahara showerheads (exclusive to Home Depot)
• 7 Delta Kate showerheads
• 10 Delta Pilar showerheads
• 26 Kholer Forte Faucets (which according to Home Depot witness Denver Sanmuganatham, Asset Protection Senior Investigator are exclusive to Home Depot)
• 6 Kholer Elate faucets
• 2 Kholer Mistos faucets (exclusive to Home Depot)
• 14 Moen Haysfield faucet with motion detector (exclusive to Home Depot)
• 3 Moen Banbury shower heads
• 5 DeWalt hammer/drill impact driver combo kits
• 3 DeWalt hammer/drill/driver/impact driver sets
• 2 DeWalt 12v. drill/driver/impact driver kits
• 2 Makita 2 piece cordless combo kit drill
• Singles of a DeWalt ¼" impact drill, a brushless 3-speed impact driver, cordless reciprocating saw, Moen water spout, Danze tub faucet, Black and Decker finisher; DeWalt battery
• 58 packages of Smart Tile peel and stick tiles
• 9 Schlage keypad front entry lock handle systems
• 29 Schlage touch screen deadbolt with alarm door locks
• 2 Schlage keypad entry flex door lock system
• 5 Weiser smart code touch pad door locks
• 3 Weiser handle set keyless entry locks
• 4 spindles of conduit wire
• And singles of a Ridgid wet/dry vacuum, Pony bench/vise clamps and a 4 1/4" adjustable bench vise/clamp

[126] According to Mr. Sanmuganatham he examined five skids of merchandise on scene, which had been removed from Mr. Khou's residence. As noted, some products were exclusive to Home Depot and he explained why. In cross-examination, Mr. Sanmuganthan agreed he could not tell from the barcode whether the merchandise was purchased by cash or credit card. He did not scan each barcode to determine the date of purchase or transaction number because that would have had to been done at a Home Depot store. He agreed some of the property was also sold at stores such as Lowe's. Mr. Sanmuganatham could not give a dollar estimate of the seized merchandise.

[127] Exhibits 22A, 22B and 22C are the documents seized from Mr. Khou's home. The number of documents I found was too extensive to itemize, but they included entire cheque books in the following names, many of which were pre-signed:

• Ms. Hui Chou Keov 9 (pre-signed)
• Mr. Bin Xu
• Zhan Peng Huang (pre-signed and fill out in the amount of $1000)
• Lien Telemarketing Service
• 2332652 Ontario Inc. (pre-signed)
• Hui Chou Keov (pre-signed)
• Thi Vu
• Wenhua Lu
• Entirely blank cheques on CIBC account and pre-signed, but no name
• Vinh Van Nguyen (pre-signed)
• Miss Thi Lien Vu
• Angkor Collision
  • One cheque was made payable to Lanh Lieu for $850.00. Mr. Khou was found in possession of number of credit cards in the name of Lanh Lieu
• D.W. Renovations
• Viet Lang Du
• Ms. Ai Linh Huynh
• Mr. Tam Yu
• Ms. Tao T. Nguyen
• TT Auto Parts
• Duc Le
• Ms. An Di Le
• Korenovation (pre-signed)
• Hiep Tan Lai
• Viet Lang Du
• Mr. Meng Tang
• Samedy Chhor (pre-signed)
• Dak Eng-Lee (pre-signed)
• Guo Rong Tan
• Chanda Lay
• Mrs. C. Lay (same address as above for Chanda Lay, but different banks)
• Muoi Thi Nguyen
• Miss Tao Nguyen
• Sunshine Cleaning Services from Ottawa (pre-signed)
• Ms. Shu Qing Sun
• Mr. Thoeun B. Cheav (pre-signed)
• Tam Yu (pre-signed)
• Thanh Nguyen (pre-signed) (See Exhibit 4 card 3359 and Exhibit 12 card 3717)
• Jinya Hong (see Exhibit 1, card 2668 and Exhibit 10 card 7975)
• Tam Vu (pre-signed)
• Anh Nguyen
• Wynh Anh Renovation
• Van T. Vu (single cheque made payable to Mai Nguyen for $500)
• Lien Tele Marketing Service

[128] Police also seized a number of documents related to Zhan Peng Huang and Z.H. Renovations:

[129] First there were four cheque books and two credit cards found in Mr. Khou's possession issued to the same person:

• Zhanpeng Huang (pre-signed) from Bank of Nova Scotia
• Mr. Zhanpeng Huang (no address, but pre-signed) from Canada Trust, Markham
• Huang, Zhanpeng (address of 55 Chiefswood Sq., Scarborough and pre-signed) from Bank of China
• Zhanpeng Huang (same address and pre-signed) from RBC
• As well 2 credit cards in the name of Zhan Peng Huang from RBC
• Lastly, a cheque from the account of Zhan Peng Huang, but with a different address of 61 Shepton Way filled in for $1000.00 and signed, but no payee's name was filled in.

[130] Secondly, police located VISA statements in the name of Zhanpeng Huang as well as Mai Thi Nguyen.

[131] Thirdly, police found a BMO bank statement in this name for a primary chequing account with an opening balance of $20 on June 26, 2013 and then a $600 deposited on July 22, 2013. As well police seized that person's RBC bank statement for the same period approximately at Mr. Khou's home. Also, listed under the same address of "55 Chiefswood Square", which previously had been associated with the name "Zhanpeng Huang", but now under the name "Stanpac Service", police found a business chequing account statement noting a balance on June 28, 2013 of $37,653.18 with that amount being withdrawn by bank draft on July 5, 2013. Finally under that same name, police seized a President's Choice Financial MasterCard statement.

[132] Police also located cheques in the name of Z.H. Renovations with an address of 61 Shepton Way, which was the same address see above for the $1000 cheque under the account of "Zhan Peng Huang", which I just discussed.

[133] As noted previously Michael O'Malley, BMO investigator, the Z.H. Renovation cheque found in Mr. Khou's possession was from the same account as the cheque deposited in account 2974 (listed to Zhanpeng Huang) for $2500, which fraudulently inflated that account (See Exhibit 5, page 51)

[134] Police also located, a TD American Express card in name of Zhan Peng Huang with an opening date of May 24, 2013 with a credit limit of $5000.

[135] Returning to the other cheques in Mr. Khou's possession:

[136] Police seized three different types of cheques for:

• Samnanang Kaychea O/A SK Renovation from BMO
• Samnang Kaychea from RBC
• S.K. Renovations from TD Canada Trust

[137] As well as four cheque books seemingly for the same person:

• Mr. How Choy Chow3 (pre-signed with an address listed as 1021 Gerrard E, 2 nd floor) at Bank of Montreal
• How Choy Chow (same address of 2 nd Floor, 1021 Gerrard E.) from Bank of Nova Scotia
• Mr. How C. Chow (address: 1021 Gerrard East) from President's Choice Financial
• Mr. How Choy Chow (no address) from Canada Trust

[138] Also in Mr. Khou's possession was a cheque book in the name of Duc Anh Nguyen. As I already reviewed crown witness Victor Gill from CIBC investigations testified about the fraudulent purchases made on two accounts registered to Thanh Duc Nguyen with an address of 709-415 Driftwood Avenue, in Toronto relating to cards ending in 3717 (exhibit 12) and 0314 (Exhibit 11) . In total, the loss to Citigroup was $35,859.40.

[139] Police located in Mr. Khou's home, the original Nguyen credit card and a credit card statement for the card ending in 0314 dated June 8, 2013 for then a balance of $12,960.96, which we know was never paid.

[140] Evidence was also called that a cheque #035 drawn on the account of Thanh Nguyen in the amount of $6000 was deposited into the account ending in 3359, but was later returned NSF. (See Exhibit 4 at page 87). When police executed the search warrant at Mr. Khou's home in September 2013, they located cheque "037 drawn on the same account. That cheque was pre-signed and made payable to Thai Nguyen in the amount of $500.

[141] Mr. Khou also had possession of a number of other personal business records in the name of Duc Anh Nguyen albeit at two different addresses of either 2B Emerson Avenue or D-289 Bartlett Avenue:

• A demand letter dated March 12, 2013 from an Accounts Recovery agency in Victoria, British Columbia for $40,464.55, which included hefty interest
• Future Shop bill for $1803.83 and a reminder letter for payment dated April 7, 2013
• Virgin Mobile Suspension Notice dated April 9, 2013 for $146.90
• Alliance One Offer to Settle Letter on behalf of RBC dated March 8, 2013 for $4874.52
• Contact Resources Services letter on behalf of CitiFinancial for $22,499.75 dated March 12, 2013
• Options MasterCard Bill dated April 11, 2013 for $8314.14
• A letter dated February 6, 2013 to Duc Nguyen from Future Shop confirming receipt of a letter requesting increase of his credit limit; and it was increased to $1800.
• Two letters dated March 6, 2013 and April 5, 2013 from Lowe's demanding payment of $519.37
• CIBC Notice from February 6, 2013 advising that his account was being charge $2500 for an item returned unpaid
• Hudson's Bay bill from March 6, 2013 for $3495.79

[142] Finally, some miscellaneous financial documents were also located in Mr. Khou's possession:

• A P.C. Financial Card statement in the name of Wen Hua Lu.
• Documents in the name of Samnang Kaychea including a Canadian Tire MasterCard bill; a Fido invoice for $374.24 and a demand letter from a lawyer for the outstanding balance dated November 22, 2012; another demand letter dated December 12, 2012 from TD Canada Trust seeking repayment of $646.00; a Shopper's Drug Mart Optimum bill for $2088.99
• Master Business License forms listed to different renovation companies; a CIBC business account application in name of SK Renovations. A Business Names Report under K.H. Renovation.
• An application for a Scotia Card in Stoney Creek, Hamilton in the name of Mrs. Kim-Seang Phat
• Driver's license in name of Hui Chou Keov and her SIN card.
• Credit cards in the name of Lanh Ngoc Lieu from RBC, BMO,TD Canada Trust; and a cheque from Angkor Collision and Repair for $850 made payable to Lanh Lieu. Also, he had credit cards in the name of Lanh Nguyen.

[143] As well pages of Home Depot receipts and various banking transaction receipts relating to credit cards I have already discussed ending in:

• 2668 (Exhibit 1)
• 5204 (Exhibit 2)
• 3359 (Exhibit 4, 4A and 4B)
• 2974 (Exhibit 5)
• 7975 (Exhibit 10)
• 3498
• 4655
• And others

[144] Mr. Khou did, however, identify cheques in Exhibit 22B at page 2 under the name: Can Phat Khou, 37 Laskay Crescent as his own. As well a Commercial Credit Adjuster's letter dated May 21, 2013 to Mr. Khou for $810.44 owing

[145] Mr. Khou also was found in possession of Bank of Nova Scotia cheque book and another from BMO belonging to Mrs. Kim Ong

(f) Kim Ong

[146] The last of the Crown's evidence that I will summarize is the testimony of Kim Yen Ong, who was originally charged jointly with Mr. Khou but whose charges were stayed as the trial commenced.

[147] Ms. Ong is 57 years old, she was born in Cambodia from where she had the equivalent of grade six education. She has lived in Canada for 30 years and is a Canadian citizen. Married but now divorced, Ms. Ong said she has one daughter. Ms. Ong said she retired five or six years ago after working in a plastic bag factory. She currently receives government financial assistance. She knew Mr. Khou, who she said people refer to him as (the English translation) of "5" through her husband. Mr. Khou and her husband were friends for a long time.

[148] Ms. Ong said many people referred to Mr. Khou as "5". She believes Mr. Khou is married and lives with his daughter. She did not know if Mr. Khou had a job.

[149] Ms. Ong was shown several cheques books issued to her, which she recognized as having been issued to her and she recognized her signature including cheques from K.O. Renovations.

[150] As first, Ms. Ong said she did not know what K.O Renovations stood for. She testified she opened the account to deposit money, but did not remember why she had opened it nor did the name "K.O. Renovations" mean anything to her. In cross examination, amicus Mr. Bernhardt suggested to Ms. Ong that "K" and "O" might represent the first letters in her own name, "Kim Ong", but Ms. Ong failed to see the connection.

[151] Initially, Ms. Ong said she could not remember because the account was opened too long ago plus she did not read or write English. She said she did not know how she opened the account except that she opened it for business. Ms. Ong agreed she has never been in the renovation business and her former business was a Thai restaurant in Kitchener. Ms. Ong was a very evasive witness: she claimed she could not remember when she opened the restaurant, where in the city it was located, or when she closed it.

[152] As for opening the account at the Bank of Nova Scotia, Ms. Ong described taking a bus to the bank. She said Mr. Khou just happened to be there. He walked by, he noticed her, and she asked him for help. He spoke "several sentences" for her and then he walked away. Ms. Ong said the account was successfully opened and a cheque book was sent to her home.

[153] After reviewing her statement she gave to police, Ms. Ong said "5" helped her open the account. Ms. Ong said Mr. Khou or "5" told her to apply for cheques, he told her to open the account if she needed money. He said she only needed a few dollars to open an account and gave an example of either $10, $50, or $100. She was shown a cheque book from the National Bank of Canada; again she recognized her signature on some blank cheques.

[154] In 2012, Ms. Ong said she had nothing else to do, so when Mr. Khou asked her to go and buy things to do with business, she would go with him. She was receiving government assistance in the amount of $500-$600 per month, which she said was not enough. Ms. Ong later said her restaurant closed before the year 2000.

[155] Ms. Ong said sometimes Mr. Khou would call her a half an hour or an hour before he would meet her. She estimated she went with him approximately five or six times. He never told her where they were going he would just say, "let's go and buy things". She knew they were going to Home Depot only when they arrived.

[156] Once in the store, Ms. Ong said they would get a shopping cart and Mr. Khou would decide what needed to be purchased. He put the items in the cart, paid the cashier, and then Mr. Khou kept the merchandise in order to sell and she would go home. She believed he would sell them to get the money back to pay for the merchandise because that is what he told her.

[157] She identified herself on video (Exhibit 16) from July 30, 2012, at Home Depot with Mr. Khou. She was told that a cheque from "K.O. Renovations" was used to pay for $998.30 of merchandise: she was shown the cheque and she recognized her signature. However, she said the actual writing on the cheque was not done by her, but rather "5" i.e. Mr. Khou wrote out the cheque. She said he entered the date, the name "Home Depot", the amount, and she signed it. The purchase was for a "water tap or something like that". Ms. Ong said Mr. Khou picked her up from her home and drove her there. She said it was arranged by phone. Mr. Khou said, "let's go by things", but he did not tell her where they were going.

[158] There was another purchase that same day and paid for by a cheque for $998.34, Ms. Ong agreed her restaurant was closed long before this purchase. The crown asked Ms. Ong, "Why then are you using a KO Renovation cheque to pay for this?" Ms. Ong replied, "Actually we don't have money because after we sell the items, and then we get the money, we pay back the amount." Ms. Ong said she had no money, Mr. Khou told her he had the money in the account. Ms. Ong said Mr. Khou never gave her any money

[159] As I mentioned, Ms. Ong became more forthcoming with information after the Crown showed to her the statement she gave to police in order to refresh her memory. Amicus, for some reason, was very troubled with the witness refreshing her memory in that fashion. Mr. Bernhardt emphasized to the witness that before the lunch break she had not mentioned Mr. Khou assisting her opening the account until she reviewed her statement. After viewing her statement to police, Ms. Ong recalled opening the K.O. Renovations account with either $50 or $100. After the initial deposit, Ms. Ong said she never deposited any more money into that account. In fact she said she withdrew money from the account. She testified Mr. Khou helped her open a business account. He did the translation because she does not speak English. Mr. Khou told her, "Open this one and we will be able to make money". He was present when she deposited the initial $50 or $100, which was her own money.

[160] Ms. Ong testified Mr. Khou was also there when she opened the account at the National Bank of Canada. He told her to open the account so they could do business and make money. She said "he taught me and I just followed". Ms. Ong said "I just listened to him". On this account she did not remember if she deposited the initial money into the account.

[161] As for the Bank of Montréal account, again she said Mr. Khou asked her to go to the bank and he was with her when she opened the account. She did not remember depositing the money. By this point, again she had been retired for 5 to 6 years and was living on government assistance.

[162] She described the same routine with respect to opening the account at President's Choice Financial.

[163] Ms. Ong was also shown another video clip from July 31, 2012, this time I believe from a Home Depot in Oakville. A cheque from Ms. Ong's President's Choice Financial account was used, and the video showed Mr. Khou filling out the cheque and Ms. Ong signed it.

[164] On July 31, 2012, Ms. Ong agreed she had signed two cheques in the amounts of $998.34 and $999.99 even though she did not have any money to pay for the items. She said Mr. Khou told her "don't worry, there is money in the account".

[165] Ms. Ong was also shown a video from June 28, 2012, where she identified herself, Mr. Khou and one other individual. She agreed she signed a cheque drawn on her bank of Nova Scotia account for $493.80, knowing she did not have the money but Mr. Khou said not to worry.

[166] In each case, Ms. Ong said Mr. Khou drove away with the merchandise and Ms. Ong claims not having been given any money. She said the chequebooks must have fallen out of her bag when she was in his car. She said she could not find them so she called him, but he did not return them.

[167] Lastly, when shown her signature on blank cheques from K.O. Renovations, Ms. Ong said Mr. Khou said it would be "easier when we go and buy things" because it would be faster because the cheques were already signed. (See Exhibits 28B, 28C, and 28D)

[168] Mr. Khou told her on July 30, 2012, that he had put money in the account. She did not check what he said, because she trusted him. Ms. Ong said the bank wrote her a letter but she did not have money to pay.

[169] Mr. Bernhardt in cross-examination suggested to Ms. Ong that she approached Mr. Khou because she needed money. Ms. Ong agreed she needed money but that she did not want to owe people money. She said she would not knowingly commit fraud. She agreed he told her that when he sold the items and that he told her he would put money into the bank account. She initially denied Mr. Khou told her that it was her responsibility to pay the Home Depot account. She later changed her evidence and agreed that Mr. Khou said he would sell the things, give her the money, and she would repay the accounts. However, she later contradicted herself again and said after the sixth purchase, Ms. Ong was adamant that she had received no money.

[170] Mr. Khou also cross examined Ms. Ong and he suggested to her that he had given her money. Ms. Ong scoffed and said "no such thing". He asked her why then she did not come after him for money? Ms. Ong replied, "you told me you had no money, what was I supposed to do?" She said she called him, but Mr. Khou said "no money" and every time she met him, he said the same thing. Mr. Khou suggested that he paid her approximately $30,000, not in one payment but he suggested $1800 and sometimes more? Ms. Ong said she did not remember this.

[171] Ms. Ong is one of the few crown witnesses whose evidence is challenged Ms. Ong was originally co-accused with Mr. Khou, but after giving a statement to police, her charges were withdrawn. The court must necessarily approach Ms. Ong's testimony cautiously although her charges were withdrawn before giving her testimony; in other words, the Crown's decision to withdraw the charges was not directly contingent on Ms. Ong giving favourable evidence for the Crown.

[172] Neither counsel ask me to rely heavily, if at all on Ms. Ong's testimony for obvious reasons. I will comment on Ms. Ong's evidence momentarily.

The Law

[173] Section 380 of the Criminal Code states:

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) Is guilty of an indictable office and liable to a term of imprisonment not exceeding fourteen years, where the ….value of the subject-matter of the offence exceeds five thousand dollars.

[174] The Crown alleges Mr. Khou committed fraud in one of four ways:

(1) Obtaining Home Depot merchandise without the ability to keep a promise to pay; knowing or being willfully blind that the vendor would not get money for the goods Mr. Khou and others knowingly took;

(2) Charging a credit card company without having money to pay back that company; knowing or being willfully blind to lack of funds;

(3) Depositing cheques that did not have money to pay them or being willfully blind to lack of funds in the account(s);

(4) Forging a signature to use a person's card knowing or being willfully blind that the signature was not Mr. Khou's.

[175] Amicus Frank Bernhardt accepts the Crown has established the actus reus of fraud; namely, the Crown has established proof of prohibited acts and proof of deprivation caused by the prohibited act(s) resulting in actual financial loss to Home Depot and the banks. The law says the actus reus must be judged on the objective facts, by reference to what a reasonable person would consider to be a dishonest act (See R.v. Theroux, [1993] 2 S.C.R.5 (S.C.C.). In Mr. Khou's case, I too am satisfied the Crown has proven Mr. Khou voluntarily engaged in series of deceitful acts, which constitutes the actus reus of the offence of fraud. The issue at the trial is whether the Crown has proven Mr. Khou had the guilty mind.

[176] Here is what the Supreme Court of Canada says is necessary in order for the Crown to prove the mens rea:

24. …The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence…the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequence is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. (See Theroux, supra para. 24).

[177] To sum up: the mens rea requirement of proof is 1) subjective knowledge of the prohibited act and 2) subjective knowledge that the prohibitive act could have as a consequence the deprivation of another. The Court also points out at paragraph 26, recklessness as to the consequences may also attract criminal responsibility. Recklessness assumes the person knows the likelihood of the prohibited consequences. When the Crown is able to show that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue, the person may still be found guilty. (Theroux, supra at para. 26)

[178] Amicus submits on behalf of Mr. Khou, the Crown has failed to establish the mens rea. Mr. Bernhardt argues the following:

(1) This is a case about a financial loss looking for a crime. Mr. Khou is being blamed because he is the one person seen on the videos, who was arrested;

(2) All the bank witnesses agreed that if there had been money in the accounts, what Mr. Khou was doing (depositing cheques, buying merchandise with someone else's credit cards, and so on) would have been perfectly legal;

(3) The court should accept Mr. Khou's explanation for his actions that gamblers and others came to him because they needed fast cash. The gamblers were prepared to suffer an upfront loss by selling the merchandise to Mr. Khou at a discount. Mr. Khou, who was a business man sold to renovators faucets and other merchandise that he bought for 80% of their value, re-selling the products for the full ticketed price (showing them the original receipt, which he kept) which is how he made a profit. Mr. Khou testified he bought other property from stores such as Lowe's and sometimes he used his own credit card to buy merchandise, too;

(4) The Court should accept Mr. Khou's explanation that some Home Depot stores did not have enough inventory, which is why he often had to go from one store to another, sometimes in the same day;

(5) There is no evidence that Mr. Khou knew how to override the Home Depot point of sale terminals. It is common knowledge that entering a CVV code is often the way to process a transaction;

(6) Mr. Khou testified he did not know how to speak English well enough to tell cashiers how to override their computers;

(7) When depositing other people's cheques, Mr. Khou never tried to hide his identity. The "gamblers" were the ones who hid their identity; not Mr. Khou. No cardholder ever complained to the banks or police about what Mr. Khou was doing. Mr. Nguyen, who the Crown alleges Mr. Khou forged his signature, in particular, never complained. Mr. Khou agrees he did not pay attention to whose cheques he was depositing or for what amount, but amicus submits that does not make Mr. Khou's actions illegal;

(8) Mr. Khou often drove "gamblers" and their friends to and from the casinos or bus stations in order to make extra money. Amicus submits Mr. Khou's explanation how he ended up in possession of other people's identification, financial documents, cheques books, and so on, is believable;

(9) Mr. Khou once asked Lov Tao why he was prepared to lose money by selling the merchandise to him at a discount. Lov Tao told Mr. Khou it was none of his business. Mr. Khou never asked again and accepted that some people were very private; and he agreed it was none of his business;

(10) The Court should reject Ms. Ong's testimony because her evidence is filled with inconsistencies and she had a motive to lie because her own criminal charges were withdrawn;

(11) Finally, the Crown could have and should have called other witnesses to prove its case.

[179] Mr. Khou is a simple man. He is 53 years old. Mr. Khou was born in Vietnam and left school when he was 10 years old. He says he has the equivalent of grade 4 education. His family left Vietnam and travelled to Cambodia where they remained refugees for 8 years before moving to Thailand. Mr. Khou came to Canada in 1990, which would have made him around 26 or 27 years old. He worked in a factory but was laid off, he then studied English as a second language, he worked again in a factory and eventually he taught himself how to fix homes. Along the way he became a money-lender and a small business man.

[180] Mr. Khou's explanation for his actions and involvement in this case is simple and straightforward. Mr. Khou testified for three days. His answers were very long and had the same themes: He is an honest man. He would never commit fraud. Every cardholder gave him permission to use their cards. He assumed everything was 100% legitimate. The card holder is financially responsible for the charges on their cards, not him. He assumed the cardholder would pay the balance on their cards. On the one or two occasions when he asked questions of a cardholder, such as Lov Tao, they told him it was none of his business. Mr. Khou accepted this because business matters are often private. Mr. Khou deposited cheques into other people's accounts because they asked him. He did not know the person did not have enough money in their bank account to cover the amount on the cheques he deposited. He could not remember exactly who asked him, or the details, because it was not important for him to remember. Mr. Khou had possession of other people's financial documents and personal papers because the owners either asked him to hold them for safe-keeping or the documents were accidentally left in his car when he gave people rides. Mr. Khou is a business man and trusts people. He does not keep any books, nor issue any receipts, nor pay income tax on the money he earned, but what he did was 100% legitimate. Should the Crown or the Court have any questions about the transactions, the questions should be directed to the cardholder and not him.

[181] To anyone other than Mr. Khou and, it would seem, amicus Mr. Bernhardt, there are problems with this story.

[182] The first problem is none of the credit cards were paid off and the cheques which inflated the credit limit all turned out to be worthless. Secondly, the mountain of dependable evidence clearly showed a predictable pattern with all 10 credit cards: cheques, which later turned out to be worthless, were deposited and credit limits artificially inflated. Immediately following there was a buying frenzy of expensive Home Depot merchandise. Not just one or two purchases, but a full-on dedicated commitment for an intense few days immediately after the bogus cheques were deposited (often by Mr. Khou), at multiple Home Depot locations on the same day until suddenly the buying stopped.

[183] For example, cards ending in 2668 and 7975 both listed to cardholder Jinya Hong. Mr. Khou is one of two men seen on the videos on July 4, 2013 depositing cheques which later turned out to be worthless. Mr. Khou is seen with a woman he identified as Jinya Hong on July 4, 2013 a total of 20 times buying Home Depot merchandise on card 2668. The next day, Mr. Khou is seen on video an additional 12 times buying Home Depot merchandise. The next day, July 6, 2013 with a second credit card listed to Jinya Hong, Mr. Khou is seen buying Home Depot merchandise 8 times (although other people were also captured on July 6 th using the same card). The following day on July 7, Mr. Khou is captured using card 7975 an additional 11 times; and lastly on July 8, Mr. Khou is seen using the card a total of 8 times. Quick math has Mr. Khou going to Home Depot stores a total of 56 times between July 4 and July 8, 2013 with cards registered to Jinya Hong buying tens of thousands of dollars of Home Depot merchandise. We know as well, Jinya Hong never paid the credit card bills and she never complained to Home Depot or the police.

[184] Mr. Khou is later found in possession of card 2668 when police execute the search warrant at his home. He was also in possession of banking documents related to both cards – 2668 and 7975. He also was found in possession of cheques in the name Wynh Anh Renovations, which is one of the cheques he deposited on July 4, 2013 into account 2668. Mr. Khou was also found in possession of other incriminating evidence related to some of the other cards involved in the fraud, which I have already reviewed.

[185] So not only does the evidence show Mr. Khou connected to the "front end" of the transactions, in other words, depositing what later turned out were worthless cheques, but Mr. Khou was involved in the "middle" of the fraudulent activity by actually going to the stores a suspiciously high number of times and buying large quantities of expensive Home Depot merchandise, often but not always faucets; and he was involved in the "back end" of the transactions because he was found possessing a large number of the actual banking documents and, as it turns out, a small warehouse of Home Depot products.

[186] Mr. Khou was also associated with eight other credit cards. Not all of the Home Depot transactions were captured on video, or if they were, the video was not preserved. Of the video and screen shots marked in this trial, Mr. Khou is seen conservatively a total of 207 times between the dates of June 10, 2013 and August 25, 2013 at Home Depot stores sometimes alone, sometimes with other men and/ or women buying large quantities of merchandise often, but not always on the same day, going from one Home Depot store to the other.

[187] Everyone, I am sure, has experienced going to a store to buy something, and upon not finding the item, having to go to second store location. In some cases, a cashier may even call another store to see if they have the item, and the second store may set it aside the item for its customer. Or we have all experienced paying for our items at the check-out, only to suddenly remember an item we have forgotten to buy. But those are not the scenarios or the pattern of transactions proven in this case. On numerous days, Mr. Khou devoted himself going from Home Depot to Home Depot within the GTA and then moving to east to the Pickering/Whitby/Ajax area or north of the city in Markham/Richmond Hill or the west end. Moving from one store to the next, Mr. Khou and others repeated the same intense pattern of buying expensive merchandise. Often Mr. Khou alone and sometimes with others, would buy a $1000 worth of products, and literally within minutes, buy a similar amount of merchandise from the same store, at the same cash register. An honest person would simply have bought everything at once. But in Mr. Khou's case, knowing what we know now, a reasonable inference is the first purchase was to test the card to see if the transaction would go through; and if it did, then to quickly make more purchases. The pattern of buying was suspicious and the evidence overwhelming. Mr. Khou's explanation about Home Depot having an "inventory problem", I find is preposterous.

[188] The Citibank cards ending 3717 and 0314, were used less frequently and the total loss was significantly less than the VISA cards; that is until Mr. Khou showed up. For example, card 3717 was used only once on each of the days May 9, May 10, May 16 and May 19 (and twice on May 13). Based on the store security camera video, it was someone other than Mr. Khou using the cards on those days. However, on May 21 st , Mr. Khou was seen on video and he agree in court that he deposited two cheques, each in the amount of $5000 into the account associated with that credit card account. Not surprisingly, after Mr. Khou made those false deposits, suddenly on May 21, Mr. Khou is seen on video making 5 Home Depot purchases all in the same day. It is not coincidence that once Mr. Khou became involved the buying pattern went from one purchase per day to five on May 21.

[189] Similarly, on Citibank card ending 0314, there was only one Home Depot purchase on each of the days May 7, May 10, May 13 and May 15, 2013; and two purchases on May 16. Again, the video still photos show that Mr. Khou was not involved on those dates. However on May 21, 2013, Mr. Khou was seen depositing a worthless cheque for $5000 at 5:58 pm; and immediately Mr. Khou was captured 5 times at various Home Depot stores making his customary purchases. Mr. Khou deposited another worthless cheques at 8:15 pm for $4000, and again he was captured on Home Depot security twice more that evening using card 0314.

[190] Cards 3717 and 0314 were registered to cardholder Thanh Nguyen. When police executed their search warrant, Mr. Khou was found in possession of not only the cheques from the same account for which he deposited the worthless cheques, but paragraphs 142 and 143 of this judgment outline the financial documents, demand letters and many other personal documents in the name Thanh Nguyen and/or Thanh Duc Nguyen, which as amicus pointed out during his cross examination of Mr. Gill, is likely the same individual.

[191] Mr. Khou would have the Court believe that Mr. Nguyen and the others either left their documents with him or the papers fell out while he was giving their owners car rides. The latter explanation Mr. Khou no doubt borrowed after hearing Ms. Ong testify that her banking documents from all four bank accounts, apparently somehow fell out of her purse in Mr. Khou's car. As she was saying this, I found Ms. Ong's explanation silly and implausible. But later to hear Mr. Khou adopt this explanation as his own to explain the volumes of signed blank cheques, credit cards, and other personal and financial documents from so many different people in his home, I find is a transparent lie.

[192] Is it coincidence that all of the credit cards and accounts associated with Mr. Khou at this trial had the same pattern of illegal activity? Mr. Khou repeatedly stated: "Ask the cardholder, not me". But Mr. Khou was, in fact, the de facto card holder for many of these credit cards, corresponding cheques and so on. He knew he had the items and consented to having them; and he certainly was in control of many of the credit cards and the cheques.

[193] Mr. Bernhard submits Mr. Khou did not hide his identity. I agree Mr. Khou is not seen on the videos wearing a mask or other disguise. But Mr. Khou is always seen on the videos wearing a baseball cap, which depending on the camera angle does conceal part of his face. Hence, Wayne King initially identified Mr. Khou as "black and white" because of the baseball cap he always wore.

[194] Mr. Bernhardt acting as amicus asks the court to examine the evidence piecemeal and to accept Mr. Khou's explanations in the same way. For example, amicus submits the Court should accept that entering a 3-digit CVV number is commonplace and there is no evidence that Mr. Khou knew how to override the Home Depots' security system. In the context of all of the circumstances of this case when considered as a whole, however, the inference that there was an innocent purpose behind Mr. Khou repeatedly instructing cashiers to enter the 3-digit CVV code, I find, is not reasonable. Similarly, I reject Mr. Khou's argument that he did not speak English well enough to orchestrate the frauds. The videos repeatedly showed Mr. Khou sometimes taking charge, at other times being the more passive player, but often he was seen turning over the cards, pointing, instructing and according to Ms. Datoo arguing with her how to process the transaction. This evidence must be considered in the context of the pattern of him and others depositing worthless cheques, the pattern of buying, the numerous stores per day, the banking documents including some of the actual credit cards and blank signed cheques in Mr. Khou's possession when arrested, and the mini warehouse of faucets and the like.

[195] As stated by the Supreme Court in Theroux, supra, at paragraph 36,

Many frauds are perpetrated by people who think there is nothing wrong in what they are doing or who sincerely believe that their act of placing other people's property at risk will not ultimately result in actual loss to those persons. If the offence of fraud is to catch those who actually practice fraud, its mens rea cannot be cast so narrowly as this.

[196] In Mr. Khou's case, however, I reject his evidence that he honestly believed he was doing nothing wrong. Mr. Khou's explanations were inherently unconvincing, his evidence I found was completely unreliable and it lacked any logic or reasonableness. Mr. Khou tried to hide behind the fact that the credit cards and cheques were not in his own name, but the evidence is overwhelming that Mr. Khou had possession of, and was in control of the transactions of many of the cards and cheques from start to finish. No doubt exists that Mr. Khou needed others to help him commit these frauds. He needed people like Mrs. Ong, for example, to set up bank accounts or to use their already existing credit cards, or to apply for credit cards. The reasonable inference is that various cardholders knew or were wilfully blind, that Mr. Khou and others would use their accounts to illegally obtain merchandise; and the debt that accumulated on the accounts, the cardholders knew would never be paid or they held accountable. An honest and legitimate credit card holder would at least have responded to the bank's inquiries or repay the debt. Yet none of the ten card holders in this case complained, responded to the bank's investigation or paid their bills. A reasonable inference is the cardholders gave permission to Mr. Khou and others to use their credit cards knowing, or not caring, that fraudulent transactions were going to, at minimum, kill their credit rating, because (a) they were assured they would not be liable for the debt and b) they were compensated.

[197] Ms. Ong gave a glimpse of how Mr. Khou operated, although I agree with both lawyers, Ms. Ong's testimony was vague, self-serving and her answers inconsistent. I do accept, however, that she was never involved in the renovation business in particular, K.O. Renovations, which cheques were found in Mr. Khou's possession. I also accept Ms. Ong's testimony that when she went to Mr. Khou and asked him for the money he owed her, but he always put her off. I found some of her testimony believable and it explains why likely other cardholders did not complain.

[198] Overall, I reject Mr. Khou's evidence as superficial, repetitive, self-serving, lacking logic and common sense. I found his explanations were contradicted by other dependable evidence and his testimony does not raise a reasonable doubt. Further, I am satisfied the Crown has met its burden of proof establishing that Mr. Khou intentionally committed the prohibited acts (namely, he knew the cheques he deposited were worthless and he bought Home Depot merchandise knowing the cardholders never intended to pay their credit card bills); while knowing the consequence would be substantial deprivation to Home Depot and the banks. As well, I am satisfied the Crown has also proven Mr. Khou was in possession of property he knew had been obtained by the commission in Canada by his acts of fraud. Finally, the evidence shows Mr. Khou was either the major player or one of the main operators of a highly sophisticated and successful fraud scheme.

[199] The only remaining issue remaining is whether the time it took to prosecute Mr. Khou was unreasonable under the new framework of R.v. Jordan (July 8), 2016 SCC 27 (S.C.C.)

Section 11(b) – Trial Within a Reasonable Time:

[200] On July 19, 2016, after final submissions were complete on the trial, Mr. Bernhardt acting as amicus advised the Court that he had spoken to Mr. Khou who wished to bring a section 11(b) motion. The matter was adjourned and I ordered the transcripts beginning with Mr. Khou's first appearance in court on November 12, 2013 through and until Mr. Bernhardt was appointed amicus on April 21, 2013 (June 2, 2015 transcript was also ordered).

[201] Whether under Jordan or R.v. Morin, [1992] 1 S.C.R. 771, the time it has taken for Mr. Khou's trial to have been reached or concluded is outside of any guideline or what is now referred to as a "presumptive ceiling". In total from the date of his arrest (September 30, 2013) to the release of this judgment (October 6, 2016) is just over 36 months (3 years and 6 days).

[202] The following is very briefly the chronology of this case:

[203] Mr. Khou was charged on September 30, 2013 and released on a form 10 and 11.1 undertaking from the police station on charges of fraud over (3x) and possession over. His first appearance in court was scheduled for November 12, 2013

1. November 12, 2013 - Mr. Khou's co-accused, Kim Ong had already contacted counsel. Mr. Khou appeared with duty counsel and through duty counsel advised that he was "not hiring a lawyer". Mr. Khou had been refused legal aid for "financial" reasons. The Crown indicated there was "lots of disclosure" including 16 DVDs and the charge screening form indicated the Crown would be seeking custody. Counsel for Ms. Ong asked for the matter to be adjourned to December 10 th , and duty counsel said Mr. Khou was agreeable to return the same date. The court ordered a Cambodian interpreter.

2. December 10, 2013 – the Cambodian interpreter was present for Mr. Khou. Agent for counsel for Ms. Ong filed a designation and asked that the matter return on January 2, so they could review disclosure and arrange a crown pre-trial. Mr. Khou did not address the court directly and it was agreed the defendants should be adjourned to the same date.

3. January 7, 2014 – agent for Ms. Ong appeared. No Cambodian interpreter was present for Mr. Khou. The Crown had "3 separate packages of disclosure" that was given to agent for Ong, who also had scheduled a pre-trial for January 15. Mr. Khou's matter was held down and he returned with the legal aid worker, a print out of the LAO refusal and printed instructions on how to appeal. Both Ms. Ong and Mr. Khou's matters were adjourned to January 21, 2014 and a Cambodian interpreter ordered.

4. January 21, 2014 – the Cambodian interpreter did not attend. Mr. Khou and his son-in-law whose English was also limited, were both present. Duty counsel said she spoke to Mr. Khou trying to find out what he is doing about the LAO refusal and she advised him he should appeal. Duty counsel indicated Mr. Khou had not instructed her what he wanted to do. The Crown repeated that a "substantial amount of disclosure has been provided: surveillance videos and e-disclosure disc". The matter was adjourned so Ms. Ong's counsel could complete the pre-trial.

5. February 11, 2014 –Duty counsel said Mr. Khou had an appointment to receive summary legal advice once the interpreter arrived. The Crown indicated Mr. Khou had yet to schedule a crown pre-trial. Agent for Ms. Ong indicated they were ready to set a judicial pre-trial. The Crown indicated they were still expecting "substantial further disclosure" and they needed more time. The Crown suggested Mr. Khou may need a month "to get up to speed". Mr. Khou advised he needed 4 weeks to appeal his refusal from legal aid. The matter was adjourned for 4 weeks.

6. March 18, 2014 – the Cambodian interpreter was present. The Crown provided more "substantial disclosure" and indicated the case was a "complex matter". The Crown's office was considering whether the "fraud team" would take over the case. Duty counsel advised Mr. Khou was still awaiting a decision from LAO on his appeal, but that Mr. Khou was still representing himself. It was suggested that both defendants may need an additional 3 weeks to review the new disclosure. The parties all agreed to return to court on April 8, 2014.

7. April 8, 2014 – an in-court judicial pre-trial (JPT) was scheduled for May 7 in 503 at 10 am.

8. May 7, 2014 – in court JPT before Moore, J and a Cambodian interpreter was present. The Crown indicated she had spoken to the O.I.C. and further disclosure was anticipated. Mr. Khou said he would like to represent himself. The Crown asked for an additional 2 weeks before setting a trial date.

9. May 28, 2014 - Justice Bhabha conducted the judicial pre-trial. The Crown advised the Court, he was providing additional disclosure: two statements from cashiers and indicated there may be additional disclosure. Counsel for Ms. Ong said they were prepared to waive the preliminary hearing and elect Superior Court judge alone. Mr. Khou repeated at page 22 line 18 and also at lines 28-30, that he wanted his trial as soon as possible. Justice Bhabha discussed with Mr. Khou about possibly getting an earlier one week trial in the Ontario Superior Court as opposed to the Ontario Court of Justice. At page 27 line 16-22. Mr. Khou said, "It doesn't matter….what ever come fast". The matter was adjourned to explore this option and other issues.

10. June 6, 2014 – the Cambodian interpreter was present for the continuing JPT before Justice Bhabha. Lawyer for Ms. Ong was prepared to accommodate Mr. Khou's election for a trial at the Ontario Court of Justice (OCJ). Counsel for Ms. Ong indicated he was not bringing a section 11(b) application at time. The JPT judge reviewed the trial issues and disclosure which included video evidence, a search warrant, and potential experts; a total of 14 witnesses. The Court discussed the original trial estimate of 2 weeks, but by the end of the JPT, all parties agreed the matter would take 3 weeks.

Trial dates were set for: March 2-6, March 23-27, March 30-April 2, 2015

[204] From Mr. Khou's arrest on September 30, 2013 to what was to be Mr. Khou's first trial date of March 2, 2015, was just shy of 18 months (17 months and 2 days) as per the Jordan presumptive ceiling in provincial court. I am satisfied this 18 month period was reasonable based on what used to be called an "intake" period under Morin: namely, time was required for the Crown to prepare disclosure and Mr. Khou to consider his options for retaining counsel; coupled with co-counsel for Ms. Ong completing the Crown pre-trial; and the judicial pre-trials. As well, it took time here at the College Park courthouse to accommodate a three week trial. Under Morin, this delay was considered "institutional delay". If Mr. Khou's trial had started and finished on the original dates set for his trial, then the presumptive ceiling for matters heard in the provincial court of 18 months would not have been breached.

[205] After June 6, 2014, when the trial dates were set, there were some interim dates for case management purposes:

11. July 23, 2014 the Cambodian interpreter was present. Mr. Khou said at page 6, lines 28-30 – "I would like to have a lawyer, but I could not afford a lawyer". The crown outlined their case, which consisted of 1200 pages of disclosure. It was a documentary case the Crown advised; not a credibility contest. The Crown would be calling the "custodians of the records and video surveillance". Justice Bhabha again reviewed with Mr. Khou his option to elect a trial at the OCJ or the SCJ level. At page 10, Mr. Khou said regarding his election: "it's not up to me. It's up to the justice system, whatever that is fast". At page 11 at lines 17-21, the Court said the fastest route was to waive the preliminary hearing. Mr. Khou responded "Yes, I choose that one".

As for reviewing the disclosure, Mr. Khou stated at page 2, lines 9-12 that "he gets help from someone that he knew that go over those material."

12. December 4, 2014 - the matter was supposed to be in front of Bhabha, J., but she was not available that day. This was addressed briefly and adjourned.

13. February 9, 2015 – the Crown referred to the case as "a potentially complicated fraud…" Justice Bhabha had a discussion with Mr. Khou who said he had read the disclosure carefully. Although he was not computer literate, Mr. Khou said his son could show him on the computer. The court told Mr. Khou, who had never had any legal consultation or received any legal advice– that was his choice to represent himself.

First Trial Dates: March 2, 3, and 4, 2015

[206] On March 2, 2015, I was the assigned trial judge. The transcript reflects that the trial did not proceed because Ms. Ong's counsel and the Crown indicated they were having discussions. I briefly asked Mr. Khou if he was ready for trial and he indicated he was. The matter was adjourned to the next day.

[207] On March 3, 2015, the Crown advised Ms. Ong had met with the police officers and she had given a statement. The Crown was intending to call Ms. Ong as a witness against Mr. Khou. As such, the Crown stayed Ms. Ong's charges.

[208] Although I ordered the transcript of March 3, 2015, I never received a copy; and hence, neither did counsel or Mr. Khou. However, the transcript from the next day March 4 th and my notes reflect that on March 3, 2015, Mr. Khou was arraigned and he elected trial in the Ontario Court of Justice before me. The Crown gave an opening statement or "roadmap" of the Crown's case: I learned the number of Crown witnesses, that the Crown was relying on lots of documents, videotape surveillance, photographs, plus there were potential legal issues relating to a search warrant. I received some lettered exhibits including a copy of the search warrant; the information to obtain (ITO); and articles proffered by the Crown for Mr. Khou to better understand the discussion regarding "amicus".

[209] The transcript of March 4, 2015, shows that I was very concerned because Mr. Khou did not appear to be ready for his trial. Mr. Khou did not appear to have a pen or piece of paper. Unlike the Crown who had a stack of files behind him, Mr. Khou did not appear to have brought with him any of the disclosure. When I asked Mr. Khou about this, Mr. Khou told me he could not write. Mr. Khou said his 30 year old son had helped him go through the disclosure material, but he was not able to come to court for his trial.

[210] On March 3, 2015, I held the matter down so the Cambodian interpreter could spend the rest of the day interpreting Ms. Ong's statement, which the Crown had just disclosed to Mr. Khou. The matter was adjourned to the next day to proceed.

[211] On this, the third day of the trial (March 4), the transcript reflects I called in duty counsel and I summarized what happened the day before. I then began a lengthy explanation of what I saw as Mr. Khou's options considering the seriousness of the charges, the complexity of the case, and his seemingly lack of preparation and inability to properly conduct a trial: first, I asked duty counsel to see if Mr. Khou was eligible to bring a Rowbotham application. Secondly, if not I said I might consider appointing amicus and perhaps optimistically, amicus could be ready to start the trial on March 23. Lastly, I suggested Mr. Khou could re-elect and have a preliminary inquiry, whereby the matter could proceed on schedule, he could still hear the evidence, and he could "practise" cross examining without facing the same final jeopardy as in a trial. Mr. Khou also said at page 36, lines 14 to 16: "I would like to have a lawyer, but I could not afford. I don't have money to pay for the lawyer." After further discussion, I adjourned the trial to March 17, 2015 so Mr. Khou could consider his options.

[212] On March 17, 2015, there was a lengthy delay while we waited for the Cambodian interpreter. In fact, no interpreter came that day and the only interpreter was one duty counsel was able to contact through speaker-phone in open court. (The interpreter issue has been a challenge throughout this trial). Eventually, the court addressed the matter but not until late in the afternoon. The matter was adjourned to the next day. Mr. Khou came with his son-in-law. I re-re-explained my concerns of Mr. Khou proceeding to trial being so under-prepared.

[213] On March 18, 2015, duty counsel advised Mr. Khou was moving forward on his appeal to legal aid. In the meantime, I continued to move the case forward selecting Mr. Bernhardt from a list of three names to act as amicus, should Mr. Khou not succeed in appealing his legal aid refusal or retain private counsel. It was clear amicus would not be available to start the trial on March 23, 2015, which I had optimistically kept available, for hopefully Mr. Khou's trial to begin should amicus be available and ready to proceed. On March 18 th I vacated March 23, 2015, but adjourned the matter to be spoken to on March 23 rd , in order to set trial continuation dates.

[214] On March 23, 2015, amicus Frank Bernhardt attended, so did Mr. Khou and his son-in-law. I outlined the terms of appointment for amicus including at page 7 of the transcript, permitting amicus to cross examine witnesses on areas which Mr. Khou may not cover during his own cross-examination. The transcript of March 23, 2015 reflects that I again carefully reviewed the history of the case, my concern that Mr. Khou was under-prepared to proceed to trial, and what I thought were his options. On page 18 at lines 19-22, Mr. Khou's son-in-law Mr. Ung confirmed that Mr. Khou could not read or write, which in my view made it even more important that, at minimum, amicus assist the court. Even better, I hoped Mr. Khou would exhaust his legal aid appeals, apply under Rowbotham for a court-appointed counsel, or retain his own lawyer. The matter was adjourned to April 21 st , for an update on Mr. Khou's legal aid appeal. On page 6, lines 15-20, Mr. Bernhardt advised he was informed Mr. Khou was refused legal aid for financial reasons.

[215] On March 23, 2015, no one raised any section 11(b) concerns although I appreciate Mr. Khou was self-represented and Mr. Bernhardt had just come on the file. I believe all parties including Mr. Khou knew and appreciated that I was doing my best to ensure Mr. Khou had a fair trial.

[216] Trial continuation dates were chosen for October 19-30, and also November 23-26, 2015.

[217] The court's information reflects that I brought the matter back several times between March 23 and October 19, 2015, to see if there were any updates regarding Mr. Khou appealing his legal aid refusal to the Provincial Director, which was a pre-condition to him bringing a Rowbotham application: June 17, July 28, August 20, September 11, 23 and 30, 2015. During that time, Mr. Khou did not exhaust all of the necessary legal aid appeals in order to bring a Rowbotham application. The extra time, however, I believe benefitted Mr. Khou because amicus Mr. Bernhardt was able to meet with him to review the disclosure, the law and assisted him in preparing his defence. On one occasion, I adjourned Mr. Khou's case to another court date, for the sole purpose of having the Cambodian interpreter available, so amicus could speak to Mr. Khou.

Trial Continuation Dates (October 19-30 and November 23-26, 2015):

[218] The first day of evidence was to have been October 19, 2015. However, October 19, 20, 21, and 23, 2015, were all spent with the Court conducting accreditation voir dires to find a Cambodian interpreter. None of the three candidates had sufficiently passed the certification process and none were qualified to translate for Mr. Khou's trial. Other dates were lost because Mr. Choeng Butt, apparently the only full-accredited Cambodian interpreter in the province was not available until November 30, 2015. On November 26, 2015, knowing that the trial would need more dates, everyone agreed on additional trial dates in February 2016. Again, no one raised the issue of s. 11(b), not because in my view, there was a culture of complacency, but this trial impinged on Mr. Butt's availability.

[219] Finally, by November 30, 2015, the Crown's case started, but not before the College Park Court Manager in consultation no doubt with others in the Ministry made considerable accommodation to guarantee Mr. Butt a certain number of working days and other perquisites in order to ensure he would continue to interpret for this trial. As I stated on the record, I was and I still am sympathetic to Mr. Butt and other interpreters, who are self-employed and who schedule themselves for multiple day matters only to have the case resolve on day one. The interpreter is suddenly left with no work, no source of income for those remaining days. While I voiced my sympathy to Mr. Butt's situation, I also expressed frustration that trial days were lost and scheduling more complicated because we were accommodating one more parties' schedule. The Ministry of the Attorney General needs to increase the number of full accredited Cambodian interpreters to relieve Mr. Butt of this heavy responsibility. But again, I would strongly reject any suggestion that the Court or the Ministry were complacent relating to the interpreter issues in Mr. Khou's case. It should be noted, Mr. Butt has very ably assisted Mr. Khou patiently and professionally throughout the trial and today.

[220] The trial, which had commenced with Mr. Khou's arraignment on March 3, 2015, was finally underway again on November 30, 2015, almost 9 months later.

[221] From November 30, 2015, this trial continued on full days as noted on the first page of this judgment: December 1, 2, 3, 2015; January 25, 26; February 1, 2, 4, 5, 9, and 11, 2016. A total of 12 days of evidence. The Crown submissions were completed on March 16, 2016 and amicus began, but did not complete his submissions. July 19 th , 2016 was set for the continuation of amicus' and Mr. Khou's submissions, but because of the long history of the case, I recall a discussion about possibly of an interim date of June 2, 2016. June 2 nd was always a tentative date because the Crown knew he was "double booking" himself, hoping that his other matter would resolved. Unfortunately, Mr. Patterson's other case on June 2nd was proceeding so notice was given, and Mr. Khou's matter was adjourned in his absence to July 19, 2016. In my view, this was yet another example of the administration of justice being aware of the need to finish Mr. Khou's case in a timely fashion: everyone was doing their best to accommodate.

[222] On July 19, 2016, amicus and Mr. Khou completed their final submissions. It was only then that Mr. Bernhardt raised on behalf of Mr. Khou the s. 11(b) argument because of the recent decision in Jordan, supra. This was the first time Mr. Bernhardt acting as amicus, or by this point in his expanded role as de facto counsel for Mr. Khou, raised any issue regarding delay. As noted above, I ordered the transcripts from Mr. Khou's arrest through and until amicus was appointed and in court. This too took some time. Then we had to find a date for the argument.

[223] As an example of what it is like to schedule something as fairly straightforward as a s. 11(b) motion, the only date when both lawyers and the court (and Mr. Butt) were able to hear the submissions was two weeks ago on September 21, 2016, which was one of the only dates I was not scheduled in a trial court. Squeezing a s. 11(b) motion on top of an otherwise double or tripled book list, which is now common place here at College Park, would necessarily have bumped someone else's trial or preliminary hearing; and the trickled down effect would have been another defendant's s. 11(b) rights would have been jeopardized. Such is the reality of a busy provincial criminal courthouse in downtown Toronto.

[224] On September 21, 2016, the matter was scheduled for 2:15 pm in 503, which at College Park is our intake/guilty plea/practise court. Fortunately, a colleague of mine took over the 503 list and after waiting for the interpreter, we commenced hearing Mr. Khou's section 11(b) motion at 4:30 pm until 5:45 pm, and the matter was adjourned to today's date for judgment.

Jordan Principles Applied

[225] Mr. Khou did not make submissions on the s.11(b) motion and he was satisfied with Mr. Bernhardt's representations.

[226] The following are my reasons why I do not find Mr. Khou's s. 11(b) rights have been violated.

[227] In R. v. Jordan (July 8), 2016 SCC 27 (S.C.C.), the Court held there is now a presumptive ceiling beyond which delay is presumed to be unreasonable unless exceptional circumstances can justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court. Delay attributable to or waived by the defence does not count towards the presumptive ceiling.

1) The Total Period of Delay

[228] The first step under Jordan is to determine the total length of time that has elapsed between the charge and the actual or anticipated end of the trial.

[229] Nao Khou was charged on September 30, 2013. The judgment in his trial is being given today on October 6, 2016. The period between these two benchmarks is 3 years and 6 days (See R v. Coulter, 2016 ONCA 704 and R.v. Manasseri, 2016 ONCA 703) (Although I note that final submissions were heard on July 19, 2016, and but for the s. 11(b) motion, I would likely have rendered my final judgment at the latest by the end of August 2016).

2) Defence Delay:

[230] The next step is to determine whether any of this delay was waived or solely caused by the Defence, then to deduct any such delay from the total elapsed time.

[231] Mr. Khou has never waived any delay in this case. His mantra throughout was he "wanted the fastest trial" date, and he wanted his "trial as soon as possible".

[232] It is arguable that Mr. Khou "caused" a significant portion of the delay in this case because he was under-prepared to defend himself, but it cannot be said that Mr. Khou was acting deliberately nor was it a calculated defence tact aimed at causing delay.

3) Were There Exceptional Circumstances:

[233] Once the presumptive ceiling is exceeded, as clearly is the case for Mr. Khou, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

[234] There are two reasons why this case took so long to complete: Mr. Khou's inability to properly defend himself which only came to the Court's attention on March 2, 2016 (exceptional circumstance that was reasonably unforeseen or reasonably unavoidable by the Crown); and the complexity of the case.

i) Discrete Events:

[235] Although Mr. Khou clearly stated to the Court from the beginning that he wanted to proceed to trial the fastest route possible, he did not or more likely did not understand what was required of him to meet his objective. This meant Mr. Khou needed to read the disclosure, cross reference the cheques and credit cards to the videos and the printed records of the transactions; review and understand the banking documents and prepare questions for the cross examinations of 10 witnesses; call a defence, if necessary; and make legal argument. Or Mr. Khou needed to let someone in the justice system know that he was incapable of doing some or all of this.

[236] I only learned of Mr. Khou's predicament on March 2, 2015, when I asked Mr. Khou why did not have even a pen or any paper let alone the disclosure with him for his trial, and I discovered Mr. Khou could not read or write English and has limited education. If Mr. Khou had come to his trial before me on March 2, 2015, at least carrying some disclosure and had something to write with, then in all likelihood I would have assumed Mr. Khou was ready to proceed to trial. There would have been no reason to challenge his decision to represent himself: litigants often times choose to represent themselves. As a former criminal defence lawyer and now as a judge with 16 years on the bench, I am fairly confident with my ability to guide a self-represented party fairly and patiently through a well-run trial. If Mr. Khou's trial started and continued without interruption in the time allotted, then the Jordan ceiling of 18 months in provincial court would not have been breached. The case would have ended in the time allotted namely, at the beginning of April 2015. But that is not what happened because I had, what I believe were, objectively legitimate concerns about Mr. Khou's ability to represent himself and to have a fair trial, which I expressed on the record.

[237] Higher courts have been clear: when an accused is not represented by counsel at trial, the trial judge has a duty to ensure the defendant has a fair trial and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused is a matter of discretion, varying with each trial and depending up9on the sophistication of the accused, the seriousness of the offence, the nature of the defence, and many factors individual to each case (See R.v. Chemama, 2016 ONCA 579 citing various authorities at para.13.). Trial judges who fail to provide adequate assistance render a trial unfair and most certainly the case will be subject to appellate review.

[238] Amicus does not criticize the Court becoming pro-active. He does not second guess my decision to adjourn the trial and appoint of amicus. Mr. Bernhardt is, however, critical of the earlier judicial pre-trial judges and the Crowns who he says ought to have recognized Mr. Khou was out of his depth in representing himself in what several Crown attorneys referred to as a "complicated case. However, as the transcripts now reflect, the judicial pre-trial judge did ask Mr. Khou about whether he had read the disclosure; he said he had. She asked him if he watched the videos: he said his son-in-law could help him because he was familiar with computers. I am not sure it is fair in hindsight to criticize or second guess the JPT judge or the Crown and find they ought to have done more earlier in the process to ascertain if Mr. Khou was ready to represent himself at the trial. Defendants are allowed to represent themselves even if they don't always do a good job.

[239] Mr. Khou was only focused on the fastest route to a trial, but since he elected trial in provincial court then he had an obligation to be ready. Even though he likely did not appreciate what that would mean, his ignorance I find cannot be held against the Court or the administration of justice.

[240] Once Mr. Khou appeared before me, neither amicus nor Mr. Khou himself ever complained about the steps the court took to ensure trial fairness. As the record reflects, I tried to keep the case moving forward in March 2015: including encouraging Mr. Khou to consider re-electing to have a preliminary inquiry; and keeping open the slim possibility that amicus could be ready to start the trial on March 23, 2015.

[241] Neither amicus nor Mr. Khou complained about having to adjourn the trial to October 2015. Earlier trial continuation dates were not available for a 2 week matter because that is the reality in a busy provincial court. As well, amicus nor Mr. Khou argue that Mr. Khou did not benefit from the assistance of Mr. Bernhardt who, as I stated, became Mr. Khou's de facto lawyer.

[242] I find the Court's decision to adjourn the trial from March to October 2015 was firstly, the correct one in order to protect Mr. Khou's right to a fair trial. Secondly, I find the adjournment was an exceptional circumstance, which the Crown could not have anticipated and was outside of their control. Mr. Khou arriving at his trial as ill-prepared as he obviously was, could never have been foreseen by the Crown and I cannot think of a reasonable remedy the Crown could have taken once the issue arose.

ii) Complexity of the Case

[243] The second reason for the delay is the complexity of the case, which I trust is self-evident based on this judgment. This was a complex case not only because of the number of the witnesses, the volume and nature of the disclosure, but also because Mr. Khou was self-represented. For example, no admissions could have been nor were they made at the start of the trial. The Crown, for example, had to prove identity: it was only after Ms. Bellamo had testified on November 30 as well as December 1 and 2 nd , and Mr. King started his evidence on December 2 that I asked if identity was admitted? Mr. Bernhardt spoke to Mr. Khou, and identity was finally admitted. Had Mr. Khou had been represented by counsel, perhaps, an admission relating to identity would have been at the outset; admissions, too, regarding the bank documents and the videos would also appear to have been reasonable. Mr. Khou testified and spent three days saying basically the same thing. If Mr. Khou had been represented, his lawyer may have been able to prepare and focus him on giving his evidence. As well, the trial took longer because at times, both Mr. Bernhardt and Mr. Khou cross examined witnesses and made submissions.

4) Does a Transitional Exceptional Circumstance Justify the Delay?

[244] Mr. Khou's charges preceded the release of Jordan on July 8, 2016. This is one of the "transitional cases" where Jordan says the new framework must be applied contextually and flexibly. The onus is on the Crown to demonstrate the time expended to complete trial proceedings is justified by the parties' reasonable reliance on the framework that existed for the determination of s. 11(b) claims prior to Jordan. This assessment is to be contextual and take into account how that prior framework was applied. (See Manasseri, supra at para. 362).

[245] I am satisfied that the transitional exceptional circumstances apply. Mr. Khou's case was always outside of the Morin guidelines, once the trial did not proceed in March 2015. Amicus did not raise section 11(b) and neither did Mr. Khou, the latter obviously because he did not understand the issues, but also because Mr. Khou, I believe, knew the Court was trying to help him have a fair trial. Under the Morin analysis, this additional time, in my view, would have been considered either defence caused delay or, a more generous interpretation, neutral in the s. 11(b) calculus.

5) Operative Delay

[246] I am prepared to add to the time between Mr. Khou's arrest (September 30, 2013) and what ought to have been the start of his trial, but for his lack of preparedness to March 2, 2015; together with the additional time period from October 19 to November 30, 2015, which was trial time lost waiting for an accredited interpreter.

[247] In total, 17 months and 2 days plus an additional 42 days results in the operative delay in this case of 18 months and 14 days.

[248] It is for these reasons, I dismiss Mr. Khou's s.11(b) application for a stay of proceedings.

Conclusion:

[249] The Crown having proven all the essential elements of the offences before this court, Mr. Khou will now be found guilty as charged:

• count #1 Fraud Over (Home Depot);
• count #2 Fraud Over (CIBC);
• count #3 Fraud Over (CITI Cards Canada);
• count #4 Possession Over.

October 6, 2016

Justice M. Wong