Court of Appeal for Ontario

Date: March 1, 2019 Docket: C61009

Judges: Pardu, Nordheimer and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Rusol Jassem Appellant

Counsel

Richard Litkowski, for the appellant Andrew Cappell, for the respondent

Heard: February 26, 2019

On appeal from: the conviction and the sentence imposed on August 18, 2015 by Justice Edward Kelly of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] The appellant was convicted of attempted fraud over $5,000 (contrary to s. 380(1) of the Criminal Code) and public mischief (contrary to s. 140(1) of the Criminal Code). The convictions arise out of the appellant's purportedly false report to police and her insurer that her car had been stolen.

[2] On appeal, the appellant argues that the trial judge erred by misapprehending evidence and by drawing an adverse inference from the appellant's failure to call her father or brother to testify at trial.

Facts/Background

[3] The appellant, a student, claimed to have purchased a used 2008 BMW 535i (the "BMW") on December 20, 2010 for $34,000. She claimed to have purchased the car from a man named Wissam Abudayyeh, who was a friend of her brother. She testified that her father paid $16,000 towards the purchase of the car, and that she paid the remainder of the purchase price with cash she had previously withdrawn in smaller increments from her OSAP monies.

[4] On August 6, 2011, she reported to the police that the BMW had been stolen from a plaza parking lot. She had traveled from Brantford to Toronto with her brother and her child and reported that the car was stolen from a parking lot while they were eating out and shopping. The car was never located. She subsequently filed an insurance claim with Desjardins General Insurance Group ("Desjardins") for $38,420. Desjardins investigated the claim. When a BMW technician scanned the computer chip in the appellant's car key (which she testified was the only key she had for the BMW) it revealed that the key had last been used to enter the vehicle on April 20, 2010 – eight months before the appellant purportedly purchased the car and the day after the vehicle was involved in an accident in the United States (prior to being imported into Canada). Desjardins eventually denied the insurance claim and the appellant was charged criminally.

[5] In the course of trial, the parties entered into an agreed statement of facts. Among other matters, the parties agreed that Jasbir Seeder, the owner and operator of Seeder Auto Centre, conducted a vehicle emissions test on the BMW on February 17, 2011. A person who identified himself as Mustafa brought the vehicle to Seeder Auto Centre and paid for the emissions test. At the time, the vehicle did not have licence plates. The mileage was 80,901 kilometers. The vehicle key had to be in the ignition to do the emission test. That factor conflicts with the analysis of the key surrendered by the appellant that indicated her key had not been used since April 20, 2010.

Trial Judge's Reasons

[6] After engaging in a lengthy review of the evidence and setting out the principles from R. v. W.(D.), the trial judge concluded that the appellant was not a credible witness. He found that she was an "unresponsive witness" and that her testimony at trial was inconsistent with her explanations prior to trial and the other evidence. Much of her testimony was "simply implausible". The trial judge noted the following specific areas of concern with respect to her evidence:

(i) The Purchase Financing

The appellant had testified that she received a $27,000 lump sum payment from OSAP, but this was not reflected in her banking records. It made no sense that the appellant would pay for the vehicle by making several cash withdrawals that she then kept in a bag in her home.

Further, it did not make sense that the appellant would pay with cash, rather than certified cheque or money order, given that she did not know Abudayyeh, the purported seller of the car, well.

(ii) The Vehicle Purchase

The trial judge acknowledged that Abudayyeh's testimony was internally consistent. However, the seller had testified that he received $34,000 in cash from the appellant's father, which did not corroborate the accused's account of the purchase and her financial contribution to the purchase. Further, it was also necessary to carefully scrutinize Abudayyeh's evidence in light of the February 17, 2011 emissions report from Seeder Auto, the key scan report and the appellant's failure to produce any bill of sale.

(iii) The Vehicle Registration

It was not plausible that the odometer reading would increase by 35,000 kilometers from December 20, 2010 when she testified she first registered the vehicle to the next registration by her on February 23, 2011.

(iv) The February 17, 2011 Emissions Test

The appellant had no explanation for the February 17, 2011 emissions test and how a person unknown to her had taken the car for that test. Moreover, the fact that the vehicle did not have plates at the time of the test suggested it was not being operated at that time.

(v) Inconsistencies in Timeline

There were inconsistencies in the timeline leading to the theft of the car, as reported to police. While the appellant told police she arrived at the plaza at approximately 6:30 p.m. and went to Popeye's, the receipt from Popeye's that the appellant provided to the Desjardins investigators showed that her meal was not purchased until 8:02 p.m.

(vi) Failure to Produce Bill of Sale

The trial judge found that it was not believable that the insurance investigators would not have requested a bill of sale for the vehicle, or that the appellant would not realize she would have to submit such documentation in support of her claim.

[7] For these reasons, the trial judge concluded that the appellant's testimony did not raise reasonable doubt as to her guilt.

[8] The trial judge then considered the evidence tending to establish the appellant's guilt. He concluded that the "key scan evidence" (showing that the key had not been used to access the car since April 20, 2010) was "reliable and highly probative" and that there was no reason to believe the system was malfunctioning. He found that the key provided by the appellant had not been used to enter or operate the vehicle after April 20, 2010. As a result, the trial judge had no doubt that the appellant was lying about the theft.

[9] The trial judge further concluded that – even in the absence of the key scan report – there was sufficient evidence to establish the appellant's guilt beyond a reasonable doubt. In this vein, the trial judge relied primarily on the February 17, 2011 emissions test, which the appellant had failed to explain. In this context, the trial judge noted that the appellant had not called her father or brother to testify, and made the following observation:

The accused did not call her father or brother to testify. There is no onus on the defence to produce evidence to corroborate the accused's testimony. It is impermissible to draw an inference of guilt from the failure of the defence to call material witnesses. However, an inference may be drawn that the witnesses' evidence would not have been favourable to the defence. The accused simply did not offer any meaningful response to the emissions test evidence which contradicted her assertions that she had active control over the car.

[10] As a result, the trial judge found the appellant guilty beyond a reasonable doubt of attempted fraud, attempted false pretences and public mischief. He stayed the attempted false pretence count pursuant to R. v. Kienapple, and entered convictions on the other counts.

Grounds of Appeal

[11] The appellant submits that the trial judge materially misapprehended evidence and made impermissible inferences from that evidence. She submits in particular:

(a) The trial judge overlooked gaps and frailties in the testimony of insurance investigators, including their failure to make inquiries of the company that first registered ownership of the vehicle in Ontario and to explore other issues related to the importation of the car from New York.

(b) The trial judge overemphasized the strength of the circumstantial evidence suggesting that more than one key for the car existed.

(c) The trial judge overemphasized the reliability and probative value of the key scan results, in the face of gaps in the evidence as to the history of the car and the potential impact on the key scan results from other events (most notably the prior accident).

(d) The trial judge overlooked the appellant's evidence that she had been driving the car during relevant time periods and other evidence tending to support her evidence.

[12] The appellant also submits that the trial judge erred in drawing the inference that the evidence of her brother and father would not be of assistance to her, and tacitly reversed the onus of proof by drawing this inference.

Analysis

[13] We would not give effect to these grounds of appeal. There was no misapprehension of the evidence. The conclusions reached by the trial judge were reasonably available to him on the evidence. The appellant essentially asks this court to re-try this case and re-weigh the evidence.

[14] The trial judge specifically referred to the limits to the insurer's investigation. The only logical conclusion on the evidence was that more than one key for the car existed, and that the key the appellant said she used had not been used for some 16 months. However, another key must have been used to conduct the emission testing at a time when the vehicle had no licence plates, and was brought in for testing by some unknown person.

[15] The appellant claimed that either her brother or father must have brought the car in for emission testing, yet neither had the name given by the person who brought the car in for that purpose. She also said her brother was with her when the car was stolen.

[16] In these circumstances, the trial judge did not err in drawing the limited inference that their evidence would not have been favourable to the defence. He specifically noted that there was no onus on the defence. In any event the trial judge drew that inference only in relation to his alternate path to conviction, and the inference did not affect the primary basis which is unaffected by any other error.

[17] The appeal from conviction is accordingly dismissed. The appellant did not pursue her application for leave to appeal sentence, and that application is accordingly dismissed as abandoned.

G. Pardu J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.