R. v. Ratnasingham, 2009 ONCA 47

Citation: R. v. Ratnasingham, 2009 ONCA 47

Date: 2009-01-19

Docket: C47915 & C47916

Court of Appeal for Ontario

Moldaver, Borins and Blair JJ.A.

Between:

Her Majesty The Queen

Respondents

And

Aravinthan Ratnasingham and Rajbavan Rajkumar

Appellants

Counsel:

Chris Hicks, for the appellant Aravinthan Ratnasingham

Peter Connelley, for the appellant Rajbavan Rajkumar

John McInnes, for the respondent

Heard and released orally: January 7, 2009

On appeal from conviction by Justice D. J. Halikowski of the Ontario Court of Justice dated April 2, 2007 and sentence imposed dated October 23, 2007.

ENDORSEMENT

[1] Assuming, without deciding, that there was a s. 10(a) breach when Constable Vanderberg stopped the appellants’ vehicle, the ensuing statement which the appellants submit should have been excluded, was in our view admissible under s. 24(2) of the Charter. In short, on this record, we are satisfied on balance that nothing would have changed and the statement would have been made had the appellants been advised of the reason for their detention. In view of that, trial fairness concerns do not arise. We are further of the view that the breach was not serious and that the officer was acting in good faith throughout. Finally, we are satisfied that the administration of justice would be brought into greater disrepute by the exclusion of the statement than its admission.

[2] As for the other alleged Charter breaches, in our view s. 8 is not engaged in these circumstances and there was no need to comply with s. 10(b): see R. v. Suberu (2007) 2007 ONCA 60, 218 C.C.C. (3d) 27 (Ont. C.A.).

[3] As to the admissibility of the statement against the co-accused Mr. Rajkumar, we are satisfied that this is one of those rare cases where the co-accused, through his silence, adopted the statement. In any event, even if the statement were wrongly admitted against him, the other evidence implicating him as a party to the fraud was overwhelming. Accordingly, this is a case where the proviso can safely be applied, if need be, to uphold the conviction.

[4] Finally, we find no error in the trial judge’s reference to the guilty plea of a third accused. In any event, the proviso would apply equally to it.

[5] Accordingly, the appeal from conviction is dismissed

[6] Turning to sentence, although the Crown concedes that the restitution order need not remain, we take a different view and leave the orders in place, but simply clarify that the liability is joint and several and that the banks cannot collect more in total than what they are owed under the orders.

[7] As for the nature and length of the sentence imposed, we take a dim view of these crimes. We consider them to be serious, difficult to detect and highly disruptive to the lives of the victims. In the circumstances of this case, we agree with the trial judge that a conditional sentence was not warranted. That said, the Crown concedes that the trial judge did not give sufficient consideration to the principles of specific deterrence and rehabilitation. Moreover, we note from the fresh evidence that the appellants have been doing well while on bail pending appeal. Taking those factors into account, we would grant leave to appeal and reduce the sentences to six months imprisonment. In all other respects the sentences will remain the same, subject to our clarifying comments on the restitution orders.

Signed: “M. J. Moldaver J.A.”

“S. Borins J.A.”

“R. A. Blair J.A.”