Court of Appeal for Ontario

Date: 2017-03-16 Docket: C62337

Judges: Feldman, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Sukhraj Atwal Appellant

Counsel

Raymond Boggs, for the appellant

Susan Ficek, for the respondent

Hearing and Release

Heard and released orally: March 16, 2017

On appeal from: the conviction entered on July 9, 2015 and the sentence imposed on June 2, 2016 by Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant appeals her conviction for fraud and forgery. She argues two grounds: (1) unreasonable verdict; and (2) that the Crown had the onus to disprove the defence of complicity by the complainant, whose company was the target of the fraud, once an air of reality of that defence was raised by the evidence.

[2] We reject both grounds of appeal. The basis of both grounds is the complainant's evidence at one point that he agreed that he signed some cheques to the fraudulent payees during the period when the forged cheques were all signed. The appellant submits that the trial judge was not entitled to discount this evidence and explain away why he did not accept it, but was required to treat it as raising a reasonable doubt and to require the Crown to rebut the defence of complicity.

[3] We reject this submission based on the reasons for judgment given by Hill J., where he thoroughly reviewed the evidence and analyzed in particular the credibility of the appellant in light of this testimony. He concluded at para. 115 of the reasons that this evidence, seen in light of the rest of his evidence and the whole of the evidence, could be explained by the passage of time, the witness' anger at being defrauded and language difficulties. We see no error in the trial judge's approach. He was entitled to accept all, or just some of the witness' evidence. He gave clear reasons for his conclusions. His findings are accorded the deference of this court. There is no basis to set aside the verdict.

[4] The appellant also seeks leave to appeal her sentence and submits that because of the delay in both the trial and sentencing proceedings, she should have been given time served. The same argument was made before Hill J., who considered it and gave cogent reasons for rejecting it at para. 48. He noted that delay will be a relevant factor when the appellant's parole eligibility is considered.

[5] In the result the appeal against conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

"K. Feldman J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."