Court of Appeal for Ontario

Date: 2017-05-03 Docket: C58609

Judges: Weiler, Feldman and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Fiona Badran Appellant

Counsel

Michael Moon and Leah Gensey, for the appellant John Neander, for the respondent

Heard and released orally: April 27, 2017

On appeal from: the conviction entered on October 26, 2012 by Justice Gisele M. Miller of the Superior Court of Justice, sitting with a jury.

Endorsement

Convictions

[1] The appellant was found guilty by a jury and convicted of fraud over $5,000; personating a police officer; transferring proceeds of crime; being a member of a criminal organization, instructing others to commit an indictable offence for the benefit of, at the direction of, or in association with a criminal organization; possession of property obtained by crime; and committing an indictable offence for the benefit of, at the direction of, or in association with a criminal organization. The latter two convictions were stayed on the basis of the Kienapple principle.

[2] The appellant was sentenced to 32 months' imprisonment after being given 40 months' credit for pre-trial custody, for a global sentence of six years' imprisonment, in addition to a fine of $225,400 or three years' imprisonment in lieu.

[3] On appeal, the appellant submits that the trial judge erred in admitting expert evidence from a Crown witness regarding proceeds of crime and money laundering, erred in instructing the jury with respect to its use of circumstantial evidence, and erred in principle in ordering the appellant to pay a $225,400 fine.

Did the trial judge err in permitting the Crown to call D/Sgt. Currie as an expert witness?

[4] The appellant submits that the trial judge erred in allowing Detective Sergeant Currie to give evidence as an expert witness. The appellant further submits that after telling the jury that she was not going to define "proceeds of crime" for the jury and that the expert witness's evidence would assist the jury in understanding that term, the trial judge in effect did just that in her charge and the evidence of Detective Sergeant Currie was unnecessary.

[5] The trial judge applied the appropriate test for the admission of expert evidence and concluded that his evidence respecting proceeds of crime and money laundering would be helpful to the jury. The appellant takes issue with her conclusion. The analysis in R. v. Mohan, [1994] S.C.J. No. 36 and R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 (leave to appeal refused, [2010] S.C.C.A. No. 125) necessarily reposes a good deal of confidence in the trial judge's ability to discharge the gatekeeper function. The trial judge's discharge of that gatekeeper function deserves a high degree of respect.

[6] Although objection was taken to the introduction of the expert evidence, once it was ruled admissible, there was no objection to the charge in this regard.

[7] We see no error in the charge to the jury. The trial judge used the phrase "proceeds of crime" in her charge as a shorthand way to refer to the wording of the indictment in the count that the appellant "did transfer property, to wit money, knowing that it was obtained as a result of the commission in Canada of the designated offence of fraud over $5000." Further, even if the expert evidence should not have been admitted, in the context of the overall trial, there was no prejudice to the appellant.

[8] This ground of appeal and the appellant's submissions related to it is dismissed.

Did the trial judge err in her charge to the jury on the use and effect of circumstantial evidence?

[9] The appellant did not press this ground of appeal in oral argument. The trial judge's charge to the jury mirrors the model charge language and we see nothing in the factual background of this case that required something more.

[10] Accordingly, this ground of appeal is also dismissed.

[11] The conviction appeal is dismissed.

Did the trial judge err in imposing a fine in lieu of forfeiture under s. 467.37(3) of $225,400, or three years' imprisonment in lieu thereof?

[12] In sentencing the appellant, the trial judge adopted the average amount obtained from the monitoring of the call centre performed between February 15-18, 2011 and used the information generated over those days to estimate the figure over the five month period that followed.

[13] The appellant submits that this was an impermissible inference on the part of the trial judge and that the amount of the fine should not exceed the amount actually proven by the witnesses who testified.

[14] The trial judge did not err in finding the Crown had proven the amount of the fraud by taking an average amount over the time period of monitoring (four days) and extrapolating from it. The same people came to work over this time period and the script for defrauding the victims was consistent. Further, in determining the amount of the fine the trial judge did not attribute any amount to the appellant for her earlier participation in the fraud which began several months before February 2011.

[15] Accordingly while leave to appeal sentence is granted the appeal as to sentence is dismissed.

Karen M. Weiler J.A. K. Feldman J.A. Grant Huscroft J.A.