WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order excluding the public and restricting publication made in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karimi, 2014 ONCA 320

DATE: 20140428

DOCKET: C54078

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Karimi

Appellant

Alan D. Gold and Joel N. Myskiw, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 24, 2014

On appeal from the convictions entered on June 6, 2011 by Justice W.J.L. Brennan of the Superior Court of Justice, sitting with a jury, and the sentence imposed on November 13, 2012 by Justice Lynn D. Ratushny of the Superior Court of Justice.

By the Court:

[1] Justice Brennan of the Superior Court of Justice, sitting with a jury, entered convictions against the appellant on two counts each of extortion and criminal harassment, and one count of attempted extortion. Justice Ratushny sentenced him to a three-year custodial sentence. The appellant appeals from the convictions and seeks leave to appeal from the sentence.

A. Facts

[2] The appellant, Ali Karimi, owns and operates a series of 24-hour convenience stores in Ottawa called “Zesty Market”. The convictions arise from the appellant’s threats to three employees that he would call the police and report that each had been stealing from him, and that each would suffer grave consequences if he did not give the appellant money. In total, the appellant obtained almost $50,000 from the complainants.

(1) Yashar Kablou: extortion and criminal harassment

[3] Kablou was born in Iran and immigrated to Canada in 2004. At the time of the offences in 2007, he was a 24-year-old university student.

[4] On April 28, 2007, Kablou was unexpectedly called into work. At the time, the appellant had not paid him for his last four shifts. Kablou told the appellant that if he went to work, he expected to receive the amounts owing to him, and the appellant agreed. When he arrived for his shift, Kablou asked the appellant if he would get paid. The appellant said yes, and then left.

[5] Around 10 p.m., Kablou, who was moving to Waterloo the next day, concluded the appellant would not pay him and took $300 out of the cash register. He left a note indicating he had taken the money in lieu of a paycheck. Approximately 15-30 minutes later, the appellant ran into the store and said he had seen Kablou take $300 from him, and told Kablou he was calling the police. The appellant demanded that Kablou pay him about $50,000. The appellant instructed Kablou to acknowledge in writing that he had been stealing from him. Kablou wrote: “I took $300” and “I have to give $50,000”. The next day, Kablou delivered three cheques of $2,000 each to the store. The appellant called Kablou and told him to change one cheque to $50,000, which Kablou did.

[6] The facts underlying the criminal harassment count began on May 1, 2007, after Kablou moved to Waterloo. Over the following weeks, the appellant demanded additional amounts of money totaling several thousand dollars. Kablou transferred various amounts to the appellant, and wrote him some post-dated cheques. The appellant told Kablou earlier that he had been a member of the Iranian Revolutionary Guard.

(2) Farzad Panahi: extortion and criminal harassment

[7] Panahi came to Canada in 2005 from Iran. He worked for the appellant from late 2005 to February 2008. At the time of the offences, he was a manager at a number of stores. The appellant had told Panahi that he was the former head of the Revolutionary Guard in Tehran.

[8] The facts underlying the extortion offence took place on February 4, 2008. Panahi confirmed the store reconciliations from the weekend were accurate. Panahi then found an envelope containing $380 in cash near the cash register. He called the appellant and told him about it. The appellant told him to hold the envelope up to the security camera and then put it back where he had found it. Later that day, the appellant came into the store and began to yell at Panahi. The appellant accused Panahi of stealing from him, telling him he would call the police and immigration authorities and that Panahi would go to jail and be deported. The appellant also said he knew lots of people “back home”. The appellant told Panahi he would not contact the authorities if Panahi confessed to stealing from him. Panahi was frightened, and testified that he agreed to everything the appellant said to protect his family and his own life. The appellant told Panahi to come into his office and “write it down”. He showed Panahi the $50,000 cheque from Kablou. At the appellant’s insistence, Panahi wrote on a piece of paper that he had taken $35,000 from the appellant.

[9] They then went to a branch of the Toronto-Dominion Bank, where Panahi cashed a GIC and gave the appellant a certified cheque for $20,000. The appellant forced Panahi to empty his chequing account, which contained $5,000, and to request his bank statements for the previous six months. By the end of the day, the appellant had obtained all of the demanded bank statements.

[10] The criminal harassment began the next day, February 5, 2008. Panahi went back to the bank to cash another GIC. He brought the appellant a certified cheque for $8,500. The appellant began calling Panahi every day, demanding more money. Panahi’s wife went to see the appellant and tried to give him her jewellery to resolve the matter. She realized there was no end to the money he wanted from them. By February 10, 2008 Panahi had given the appellant a total of $37,000. Panahi testified that he was afraid that if he spoke to the police he would be deported and arrested in Iran. On February 12, 2008, he spoke to the police.

(3) Alireza Khodabandeh: attempted extortion

[11] Khodabandeh came to Canada from Iran in 2000 when he was 25 years old. He worked and became a manager at one of the appellant’s convenience stores. During his employment, Khodabandeh heard the appellant threaten other employees on many occasions, and accuse them of stealing money.

[12] On February 4, 2008, the appellant accused Khodabandeh of stealing money. He also told Khodabandeh that he knew he was gay, and said that “the gays” had to be returned to Iran and hung. He told Khodabandeh that he was going to get $40,000 from Khodabandeh’s family in Iran, and then “ten times” more. Khodabandeh had earlier heard the appellant say that he worked for the Iranian Revolutionary Guard and that he had “friends back home”. Eventually, the appellant demanded that Khodabandeh confess to theft, produce his bank statements and disclose other personal information to the appellant, and commence monthly payments for the monies he had stolen.

[13] Khodabandeh spoke to a lawyer and learned what extortion was. Khodabandeh returned to work over the following days and began recording the appellant’s threats to him.

B. ISSUES

[14] The appellant submits that the trial judge erred by failing to relate the evidence to the issues in the case, by expressly permitting the jury to consider the evidence cumulatively on all the counts if the jury concluded there was a “pattern of similar conduct”, and by providing erroneous instructions regarding the law of extortion and harassment. The appellant also submits the Crown exceeded the bounds of proper argument in inviting the jury to reject the authenticity of audio recordings put in evidence by the appellant and that the trial judge’s instructions to the jury regarding the authenticity of the recordings were deficient. The appellant tenders fresh evidence that the audio recordings are in fact authentic. Finally, the appellant submits that the trial judge erred in his sentencing analysis in various ways, that the range of fit sentences for these offences has an upper limit of two years, and that the appellant should have received a community-based disposition.

C. CONVICTION APPEAL

(1) Failure to relate the evidence to the issues

[15] The appellant submits that the trial judge failed to relate the evidence to the essential elements of the charges. The concern is that, after referring to the elements of the offences, the trial judge then merely recited all the evidence of a particular complainant without relating the pieces of evidence to a particular element.

[16] We are satisfied that the charge left the jurors with a clear understanding of the elements of the offences and the defence position. The trial judge referred to the essential parts of the evidence. The prosecution and defence cases were not complex. The defence position at trial was that the appellant’s conduct toward each complainant was not threatening, but a heavy-handed, though not illegal, attempt to recover money that he actually was owed or reasonably believed he was owed. Given that each of the complainants had testified to similar conduct by the appellant, and the defence position in regard to each was the same, it was unnecessary for the trial judge to provide the jury with a repetition of the elements of each count and the evidence related to each count.

[17] The trial judge invited both parties to provide him with written outlines of their positions. In his charge, he recited the theories that the Crown and the defence had provided to him. Furthermore, the defence received the draft jury charge, and a pretrial conference was held. After the jury charge was delivered, there was no objection to the manner in which the trial judge articulated the defence position. In these circumstances, it is difficult for the appellant to argue now that the charge left the jury with an inadequate understanding of the elements of the offences or the defence position in relation to those offences.

[18] We would not give effect to this ground of appeal.

(2) Similar fact evidence

[19] The appellant submits that the trial judge erred in directing the jury that the evidence of the three complainants could be used as similar fact evidence. He also submits that the trial judge failed to adequately direct the jury concerning the use of the evidence and, in particular, failed to point out important differences in the three accounts.

[20] The defence position at trial was that the three complainants had colluded against the appellant to have him charged criminally. The defence did not bring an application for severance. Thus, the evidence from the three complainants would be placed before the jury. The defence relied upon the similarity in the accounts of the complainants to support the position that the three complainants had colluded to fabricate a story. Counsel for the appellant did not object to the inclusion of the similar fact portion of the charge upon receiving the draft of the charge, or after the charge had been delivered. Given the defence position, we see no error in the trial judge failing to conduct a formal application to determine the admissibility of the three accounts as similar fact evidence.

[21] In oral argument, counsel provided the court with a written summary of the evidence of the three complainants to show that there were significant differences in their evidence. He submits that the charge to the jury was deficient in failing to highlight some of these differences.

[22] We disagree. The charge to the jury focused on the allegation of collusion. The charge also accurately related how the evidence could be admitted to support the prosecution theory. The complaint now made by the appellant was not advanced at trial and is inconsistent with the defence position of collusion. In our view, the jury would have had a sufficient understanding of the defence position with respect to the use of the three complainants’ evidence. Their accounts were not identical; for example, the appellant allegedly used slightly different threats against each of the victims. However, given the issues in the case, especially that identity was not in issue, there was sufficient similarity that the evidence of the three victims was admissible as similar fact evidence. Since, as we have said, the jury would have had a sufficient understanding of the prosecution and defence cases for proper use of the complainants’ evidence, we would not give effect to this ground of appeal.

(3) The law of extortion

[23] The appellant submits that, as a matter of law, a threat to call the police, standing alone, can never constitute extortion.

[24] Again we disagree. As this court pointed out in R. v. H.A., 2005 32566 (ON CA), [2005] O.J. No. 3777, the context must be considered in determining whether an otherwise apparently lawful threat (i.e., to call police) constitutes an extortive threat. A threat to call the police unless the complainants gave the appellant money could amount to extortion if the jury was satisfied the appellant knew the complainants had not stolen from him or did not reasonably believe they had stolen money from him. The charge did not suggest that a mere threat to call police would alone be sufficient to constitute extortion.

[25] The appellant points out that the indictment particularized the alleged extortion as “threats”. Thus, he submits it was an error for the trial judge to tell the jury that a “threat includes an accusation”.

[26] We reject this complaint. We are satisfied that the charge read as a whole made clear to the jury that the alleged extortion consisted of threats to call the police based on the appellant’s false accusations that the complainants had robbed him. As the charge was framed, mere accusations would not have amounted to the requisite threat element of the offence of extortion.

(4) The law of harassment

[27] The appellant objects that the trial judge told the jury that: “In this case criminal harassment is made out if you find beyond a reasonable doubt that there was repeated communication that resulted in the person being harassed.” He submits this “oversimplified” instruction failed to make clear that a complainant’s “fear of safety” is a key element of the offence.

[28] This instruction was given in a recharge after defense counsel had objected that the Crown’s submissions to the jury had not indicated that the unwanted communication needed to be repeated, as had been particularized in the indictment. It was for that reason the trial judge told the jury they had to find “repeated communication” that resulted in harassment. In his main charge, the trial judge had provided a full and accurate recitation of the six elements required for proof of harassment. We would not give effect to this ground of appeal.

[29] The appellant also suggests the trial judge’s explanation of the phrase “lawful authority” implied to the jury there had to be an express legal provision that authorized the appellant’s actions.

[30] We do not agree. The trial judge provided clear instructions that the jury should consider whether the appellant believed that he was recovering money from Kablou that Kablou had stolen from him and whether it was lawful to attempt to recover it. This instruction made clear that express legal authority for the appellant’s actions was not required – if the appellant had an objectively reasonable belief that he had been stolen from, it would follow that he had lawful authority to seek recovery of the stolen money. We further note, as the appellant acknowledges, that the trial judge’s impugned instruction conformed to the standard jury charge on this issue set out in Watt’s Manual of Criminal Jury Instructions.

(5) The Crown’s closing address and the Fresh Evidence

[31] In his closing address, the Crown questioned the authenticity of audio recordings relied on by the defence in which one of the complainants (Panahi) allegedly confessed to stealing from the appellant.

[32] Contrary to the appellant’s argument, the Crown’s closing was strenuous but was not outside the bounds of legitimate argument. While an aspect of the Crown submission respecting the defence witness Zarei concerned the audio recordings, the main position taken by the prosecution was that Zarei was not a credible witness. There was a sufficient basis for this position because of the relationship between Zarei and Panahi. Further, there was sufficient material before the jury to allow Crown counsel to allege that the tapes were not an authentic confession by Panahi. Crown counsel has provided a long list of material in her factum that would allow for this inference to be drawn.

[33] On this appeal, the appellant sought to tender fresh expert opinion evidence that the audio recordings were authentic. The fresh evidence is not admissible. The expert opinion could have been obtained earlier and offered at trial. More to the point, the expert opinion evidence, if it had been introduced at trial, would not have affected the outcome of the trial. Given that the three complainants testified that the appellant had intimidated and bullied them into confessing they had stolen money from him, the audio recordings cannot be regarded as potentially decisive. Finally, the fresh evidence does not meet the prosecution theory that the voice alleged to be that of Panahi was scripted and was not his real voice.

D. Sentence appeal

[34] We have not been persuaded that there is any basis for interfering with the sentence. The sentencing judge committed no errors of principle. She considered all the relevant factors and weighed them appropriately. Absent any error of principle, there is no basis to interfere with the sentence imposed.

[35] The appellant submits that the trial judge placed undue emphasis on the decision of this court in R. v. Lindsay, 2009 ONCA 532, [2009] O.J. No. 2700. We disagree. The trial judge recognized that there were differences between this case and Lindsay and took these differences into account.

[36] These were serious offences involving threats to three complainants, two of whom were forced to give the appellant large amounts of money. The appellant used his alleged association with the Iranian Revolutionary Guard to threaten the complainants, some of whom had families back in Iran. Given these factors, the sentence imposed was fit.

E. Conclusion

[37] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.

Released: April 28, 2014

(EAC) “M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”