COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanagarajah, 2014 ONCA 513

DATE: 20140630

DOCKET: M43890 (C56562, C56593, C56594 and C57374)

BEFORE: Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Rajitha Kanagarajah, Ramanan Kenegarajah, Anantha Neeranjan and Kuhen Neshan

Applicant/Appellant

COUNSEL:

Ian Scott, for Rajitha Kanagarajah

Paul J.I. Alexander, for Ramanan Kenegarajah

Michael Dineen, for Anantha Neeranjan

Mark Halfyard, for Kuhen Neshan

Molly Flanagan, for the respondent

HEARD: June 10, 2014

On motion for an order appointing counsel under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46.

Juriansz J.A.:

[1] Each of the four appellants applies for an order appointing counsel under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46. They are extended family members who were tried as co-accused on over 100 offences related to conspiracy, fraud, money laundering and identity theft. The two men, Mr. Kenegarajah and Mr. Neshan, were convicted of many of the counts. The two women, Ms. Kanagarajah and Ms. Neeranjan, were convicted of two and three counts respectively. Notably, all were convicted of participating in a criminal organization between 2005 and 2010.

[2] After credit for time served, Mr. Kenegarajah was sentenced to six years' imprisonment, Mr. Neshan to five and a half years' imprisonment, and Ms. Kanagarajah and Ms. Neeranjan received 18-month conditional sentences with house arrest. None are now in custody. They are separately represented and their s. 684(1) applications are interrelated on some of the issues. Mr. Kenegarajah and Mr. Neshan are appealing only some of the many counts of which they were convicted.

[3] An applicant under s. 684(1) must satisfy the court that it appears desirable in the interests of justice that he or she should have legal assistance and that he or she does not have sufficient means to obtain that assistance.

[4] Where, as here, it is conceded that the applicants lack sufficient means to retain counsel, the applicants, relying on R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (C.A.), submit the interests of justice involve only two considerations: whether the applicant advances arguable grounds for appeal, and whether the applicant can effectively advance the grounds of appeal without the assistance of counsel.

[5] In Bernardo, Doherty J.A. observed that the “useful list of factors” indicated in earlier cases “reflects” these two principles. On my reading, he did not intend to exclude the factors indicated in the earlier cases from consideration. For example, one of the cases he cited, R. v. M. (A.) (1996), 1996 CanLII 1112 (ON CA), 30 O.R. (3d) 313 (C.A.) (per Austin J.A.), lists “the seriousness of the matter” as one of the factors to be considered. Justice Doherty considered this factor at para. 27 of Bernardo, stating that “[t]he seriousness of the offences and sentences imposed work in the appellant’s favour on this motion”. This is consistent with decisions of the courts of appeal of British Columbia and Saskatchewan: R. v. Butler, 2006 BCCA 476, R. v. Lerioux, 2014 SKCA 60.

[6] In another case cited in Bernardo, R. v. LeCompte, [1997] O.J. No. 987 (C.A.), Laskin J.A. took into account the serious consequences that a dismissal of the appeal would have for the applicant. I note that at para. 27 of Bernardo, Doherty J.A., rather than dismissing the argument as irrelevant, considered and dealt with the argument the appeal would have no practical consequences for the appellant.

[7] The Crown’s position is that the applications should be dismissed because the proposed grounds of appeal do not have sufficient merit to warrant the appointment of counsel. The Crown concedes that if I find the proposed grounds of appeal have sufficient merit I should allow the applications.

[8] I have already indicated that, in my view, a number of factors may be relevant to whether it is in the “interests of justice” that an accused have legal assistance under s. 684. In the circumstances of this case, I accept that the determinative factor is the merit of the appeals.

[9] I consider the applications and grounds of appeal in the order in which they were advanced.

(1) Ms. Neeranjan

[10] Counsel for Ms. Neeranjan submits she has two arguable grounds of appeal.

[11] Ms. Neeranjan was convicted of possession of property obtained by crime. Counsel submits the trial judge erred by reversing the burden of proof with regard to whether she had knowledge of the criminal activities of her husband, Mr. Neshan. I do not regard this ground of appeal as arguable. The reasons of the trial judge, when read as a whole, amply support his conclusion that “the evidence points to her knowledge of the criminal conduct of Neshan and Kenegarajah.”

[12] Counsel for Ms. Neeranjan submits that she should not have been convicted of participating in a criminal organization as the evidence did not establish her involvement in an activity that resulted in a direct or indirect benefit to the group. She was convicted only of two counts of possession of property obtained by crime based on knowledge of or willful blindness to her husband’s activities. Crown counsel concedes this is an arguable ground of appeal. In my view, it is desirable in the interests of justice that she be represented on this ground of appeal.

(2) Mr. Kenegarajah

[13] Counsel for Mr. Kenegarajah submits that some of the counts of which Mr. Kenegarajah was convicted offend the single transaction rule in s. 581(1) of the Code. Mr. Neshan also advances this argument. For example, count one alleged the involvement of all of the accused in the offence of fraud over $5000 between 2001 and 2010; counts 3-10 and 64 alleged the involvement of Mr. Kenegarajah and Mr. Neshan in fraudulent activities and personation between 2001 and 2010; and count 92 alleged the involvement of all accused in money laundering between 1997 and 2010. Counsel submits that the wording of the Information, which includes an extended timeframe of almost a decade, offends the single transaction rule and that the charges ought to have been quashed.

[14] The trial judge provided detailed reasons for rejecting this argument. He observed that the Crown alleged that the means of the fraudulent activity were consistent throughout the periods in question and represented a continued course of conduct that effectively amounted to a global operation. He concluded that each of the impugned counts alleged a single transaction. In my view, the applicants do not have an appreciable prospect of persuading a panel of this court to interfere with the trial judge’s conclusion.

[15] Mr. Kenegarajah also submits that the trial judge erred in convicting him on counts 1 and 92 as these counts were overbroad. These counts alleged time frames of 9 and 13 years respectively, and there was no admissible evidence of Mr. Kenegarajah’s participation until the last two years of the range. Counsel points out that Mr. Kenegarajah was not even in the province of Ontario until April 2008.

[16] In my view, this ground is not arguable. The evidence established Mr. Kenegarajah’s involvement as early as 2001 in Ontario and the trial judge explained why he could consider Mr. Kenegarajah’s activities in British Columbia.

[17] Finally, counsel for Mr. Kenegarajah points out that a “criminal organization” means a group composed of at least three persons. Ms. Neeranjan, as discussed above, has an arguable appeal that she should not have been found to be a member of a criminal organization. Counsel for Mr. Kenegarajah argues that Ms. Kanagarajah, like Ms. Neeranjan, should not have been found to be a member of a criminal organization. That would leave only Mr. Kenegarajah and Mr. Neshan, an inadequate number to establish a criminal organization.

[18] I do not regard the submission as arguable as there was evidence to support the trial judge’s finding that Ms. Kanagarajah was a member of a criminal organization. She herself was convicted of fraud to support the purchase of a property. The trial judge found she tendered or knowingly allowed Mr. Neshan and Mr. Kenegarajah to tender a forged letter, purportedly from her employer, to the mortgagee. She collected the rent from the tenant, and the trial judge found the property was one used by the criminal organization as a means to launder money.

(3) Mr. Neshan

[19] Mr. Neshan’s application is based on the same submissions as that of Mr. Kenegarajah. His application fails for the reasons given in regard to Mr. Kenegarajah’s application.

(4) Ms. Kanagarajah

[20] Ms. Kanagarajah’s submission that she should not have been convicted of being a member of a criminal organization is not arguable, as discussed above.

[21] Counsel for Ms. Kanagarajah submits that while the forged employment letter that was used to obtain a mortgage bore her name, there was no evidence that she actually commissioned the production of or tendered the forged document to the bank for its truth. However, there was much evidence linking her to the criminal enterprise. The property was in her name and she collected the rent from the tenant occupying the property by meeting him in a restaurant. When the police executed a search warrant at 21 Rockport Drive, they encountered her inside. A new Mercedes Benz parked at the house had been leased in her name by a compromised credit card. The police seized a Blackberry connected to her that revealed over 1000 calls to financial institutions. The trial judge explained why he connected this and other incriminating evidence to her and not to her husband, Nesarajah, who was acquitted. Against the backdrop of this evidence, my view is that Ms. Kanagarajah has slim prospects of persuading a panel of this court that the trial judge erred by inferring that she tendered or knowingly allowed Mr. Neshan and Mr. Kenegarajah to tender the forged letter.

Conclusion

[22] The applications of Ms. Kanagarajah, Mr. Neshan and Mr. Kenegarajah are dismissed. Ms. Neeranjan’s application is allowed and counsel will be appointed to represent her in her appeal of her conviction of participating in a criminal organization.

“R.G. Juriansz J.A.”