Court of Appeal for Ontario

Date: 2018-10-02 Docket: C61911

Judges: LaForme, Watt and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Richard Marshall Appellant

Counsel

Gregory Lafontaine, for the appellant Erica Whitford, for the respondent

Heard: September 28, 2018

On appeal from: The conviction entered on October 26, 2015 and the sentence imposed on March 18, 2016 by Justice Miriam Bloomenfeld of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of attempted fraud over $5,000 and sentenced to five months' imprisonment and 30 months' probation. He appeals conviction and seeks leave to appeal his sentence.

[2] At the conclusion of the hearing of this appeal, we dismissed the appeal against conviction but allowed the appeal against sentence, with reasons to follow. These are our reasons.

[3] The appellant was in the business of promoting concerts. He financed events by securing upfront funds from investors.

[4] The appellant went to a branch of the TD Bank on December 2, 2013, accompanied by an accomplice named Patrick Lee, and another man known only as "Ray." They were there to see the appellant's long-time banker, Wassim Jami.

[5] Mr. Lee testified at trial. He said that he was paid to impersonate Chua Hua Yong, a TD client with about $1,000,000 on deposit. Lee indicated that he wanted to transfer $600,000 into the appellant's business account. He showed Mr. Jami false identification, which bore his photograph. Upon inspecting the fake ID, Mr. Jami became suspicious – the real Mr. Yong was 81 years old; Lee was only 44. When Mr. Jami left the room to make further inquiries, Lee and Ray fled. However, the appellant remained, and claimed to have no knowledge that anything was awry.

[6] The appellant testified that the transaction that was to transpire at the bank had been arranged by another individual, who the appellant described as a "known fraudster." The appellant denied any knowledge of a plan to defraud the bank. The trial judge provided detailed reasons for rejecting his evidence.

[7] The trial judge found that there could be no doubt that an attempt to defraud the bank was perpetrated at the meeting described above. The only question was whether the appellant knew about the scheme. After examining all of the evidence, the trial judge found, at para. 64, that she was satisfied beyond a reasonable doubt, "that Mr. Marshall set up this meeting at the bank intending to present Mr. Lee as Mr. Yong and, by doing so, deceive Mr. Jami into allowing at least $600,000 to be transferred from Mr. Yong's account to Mr. Marshall's business account."

[8] The appellant challenges his conviction by raising a number of grounds of appeal focused on how the trial judge analyzed various pieces of evidence. More specifically, his counsel submits that the trial judge's adverse credibility findings in relation to the appellant were unfairly harsh. Looking at her reasons as whole, we conclude that the trial judge approached the evidence in a fair and even-handed manner. We can identify no errors in her treatment of the evidence as a whole.

[9] The appeal from conviction is dismissed.

Sentence Appeal

[10] The appellant seeks leave to appeal his sentence. Due to uncertainty in the law concerning the immigration consequences of a custodial sentence of six months or more, and at the invitation of defence counsel (not Mr. Lafontaine), the trial judge imposed a sentence of five month's imprisonment, as opposed to an 18-month conditional sentence. As the trial judge said in her reasons for sentence:

A conditional sentence in the range of 18 months to two years less a day may….potentially supply the necessary deterrence and denunciation, while simultaneously satisfying other pertinent sentencing principles. Given Mr. Marshall's specific circumstances however, and in accordance with the request made by his counsel during submissions, I am satisfied that proportionality, rehabilitation, deterrence and denunciation could also be addressed with a much shorter sentence involving actual incarceration.

[11] In the meantime, the Supreme Court of Canada has clarified the law such that the concerns expressed by the trial judge (and defence counsel) about conditional sentences of six months or more have disappeared: see R. v. Tran, 2017 SCC 50, [2017] 2 S.C.R. 289.

[12] In light of this development, we would give effect to the trial judge's observations about the suitability of a conditional sentence. We grant leave to appeal sentence, allow the appeal, and set aside the period of incarceration and substitute a conditional sentence of 18 months' duration, on the terms upon which counsel have agreed. All other aspects of the sentence remain in effect.

"H.S. LaForme J.A." "David Watt J.A." "Gary T. Trotter J.A."