Court of Appeal for Ontario

Date: 2019-03-04 Docket: C61891

Judges: Rouleau, Trotter and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Remy Boghossian, Raffi Ebrekdjian and Siva Suthakaran Appellant

Counsel

Ravin Pillay and Domenic Basile, for the appellant

David Friesen, for the respondent

Heard

February 20, 2019

Appeal Information

On appeal from the ruling of Justice Alfred J. O'Marra of the Superior Court of Justice, dated August 31, 2015, with reasons reported at 2015 ONSC 5364, and from the conviction entered on September 8, 2015, with reasons reported at 2015 ONSC 4851, and from the sentence imposed on March 29, 2016.

Reasons for Decision

Overview

[1] The appellant appeals his conviction for fraud in excess of $5,000 and his sentence of three years imposed after an 11-day judge alone trial.

[2] At the conclusion of the appeal, the panel dismissed the conviction appeal and, with the exception of the reduction of the fine in lieu of forfeiture, dismissed the sentence appeal with reasons to follow. These are those reasons.

[3] The appellant and two co-accused, Remy Boghossian and Raffi Ebrekdjian, were participants in the negotiations of a stolen and forged TD Canada Trust ("TD") bank draft in the amount of $1,895,751. On February 10, 2011, the fraudulent bank draft was deposited by Mr. Boghossian, a lawyer, into his trust account at the Royal Bank of Canada ("RBC"). The proceeds from the fraudulent bank draft were used that same day to acquire 22 kilograms of gold bars, and 19 kilograms of gold bars the following day.

[4] The trial judge found that the appellant's main role in the fraud was to coordinate with an unidentified person in the TD branch from which the bank draft was stolen. The trial judge found that this inside person had facilitated the commission of the fraud. This accomplice would intercept and respond to any request for confirmation of the validity of the bank draft that might be sought. The appellant and his co-accused were also involved in picking up and attempting to sell the gold bars acquired with the fraudulently obtained funds.

(1) The Conviction Appeal

(a) Unreasonable Verdict

[5] On his conviction appeal, the appellant argues that the verdict was unreasonable. The appellant submitted at trial that he had been introduced to Mr. Boghossian by Mr. Ebrekdjian purportedly to structure an investment by Mr. Ebrekdjian in a hotel the appellant owned in Belleville. As the case against him was purely circumstantial, the appellant argued that the trial judge had to reject the Crown's theory and the conclusion that the guilt of the appellant was the only inference available from the evidence led at trial. The appellant maintains that the trial judge erred in rejecting the appellant's alternate theory as to why he was in contact with Mr. Boghossian and Mr. Ebrekdjian. In relying on R. v. McIver, [1965] 1 O.R. 306, at p. 309 (Ont. H.C.), aff'd , [1965] 2 O.R. 475 (Ont. C.A.), aff'd , [1966] S.C.R. 254, which was subsequently overruled by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, the trial judge only took into account the evidence led at trial, and not the absence of evidence, when considering the inferences he could draw.

[6] In Villaroman, at para. 36, the court explained that, in circumstantial cases, the inferences consistent with the innocence of an accused do not have to arise from proven facts and can instead arise from a lack of evidence. In the appellant's submission, the trial judge's reliance on McIver means that he did not consider the significant gaps in the evidence, including the fact that despite extensive investigation by TD and the police, no TD inside person was ever identified.

[7] In addition, in assessing the evidence that was led, the trial judge made a factual error that placed the appellant at or near the TD branch while Mr. Boghossian negotiated the stolen bank draft at the RBC. This finding would support the alleged link between the appellant and the inside person. In fact, the cellphone records disclosed that the appellant was in Belleville, miles from the TD branch.

[8] The appellant further argues that, properly assessed, the evidence should have led the trial judge to conclude that the alleged TD accomplice did not in fact exist, or at a minimum, that he had a reasonable doubt as to his existence. This would undermine the Crown's theory as to the appellant's alleged role in the fraud and, as a result, also undermine the basis upon which the trial judge rejected his theory as to why he had been in contact with Mr. Boghossian and Mr. Ebrekdjian.

[9] We disagree with the appellant. Although the trial judge erred in placing the appellant in the vicinity of the TD branch at the time the fraudulent draft was deposited at RBC, in our view, this error was minor and played a very limited role in the trial judge's reasoning.

[10] As for the legal test applied by the trial judge, we agree with the Crown's submission that the trial judge's reasons, read as a whole, demonstrate that he was well aware of the need to consider both the evidence led at trial as well as the gaps in the evidence when deciding whether any reasonable alternative to guilt could be inferred. The reasons clearly reveal that the trial judge was alive to the fact that the inside person at TD was never found or identified.

[11] We also see no error in the trial judge's rejection of the suggestion that no inside person was involved in the fraud. His finding in that regard is reasonable and well-founded in the evidence.

[12] The circumstantial case against the appellant was solidly anchored in the evidence, including:

1. over 100 calls and text messages exchanged by the appellant with the phone purchased and used by Mr. Ebrekdjian during the critical three-day period surrounding the deposit of the fraudulent draft at RBC;

2. the context of the messages themselves, including references to the "banker" and "ur guy";

3. the participation of the appellant in the sale of the gold bars that were acquired in the fraud; and

4. the appellant's unexplained attendance at a meeting with Mr. Boghossian and Mr. Ebrekdjian shortly after the fraud was perpetrated.

[13] The extensive involvement of the appellant with his co-accused over the critical period was not adequately explained by the appellant, who did not testify, nor was it consistent with the very limited evidence in the record that might support the appellant's theory that his involvement with the co-accused was strictly related to an investment in his Belleville hotel.

[14] We therefore dismiss this ground of appeal.

(b) The 11(b) Ground

[15] The appellant further argues that the trial judge erred in dismissing his application for a stay under s. 11(b) of the Charter because of the delay incurred in reaching trial.

[16] In our view, this ground of appeal does not succeed. The trial ended just over 48 months from the date of the charge. As this case predates the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the trial judge applied the methodology from R. v. Morin, [1992] 1 S.C.R. 771, to determine whether a stay should be imposed. The trial judge considered the various periods of delay, attributing much of it to the defence or finding it inherent or neutral. He assessed the overall institutional delay as 22 months, including 11 months in the provincial court and 11 months in the superior court, which is in excess of the Morin guidelines of 8 to 10 months in provincial court and 6 to 8 months in superior court.

[17] The trial judge then considered, and rejected, the appellant's submission that he had suffered prejudice flowing from the delay, finding that the prejudice alleged by the appellant was principally the result of having been charged with the offence and the civil proceedings commenced by RBC.

[18] The trial judge then concluded that the delay of four months in excess of the Morin guidelines was not unreasonable in light of the size and complexity of the case. He dismissed the s. 11(b) application.

[19] The appellant argues that, viewed through the lens of Jordan, the delay in this case is well in excess of the presumptive ceiling beyond which delays are deemed unreasonable. In his submission, the delay was not caused by him, but rather by his co-accused, and he was proactive in trying to move the matter forward. This is not, in his view, a case where transitional exceptional circumstances are capable of justifying the lengthy delay.

[20] We disagree. In our view, this case falls squarely under the category of transitional exceptional circumstances recognized in Jordan: at para. 96. This is not one of the narrow category of cases where the court will impose a stay under Jordan despite the delay having been found to be reasonable under a Morin analysis. As explained in Jordan, this narrow category of cases will include, for example, simple cases where the ceiling is vastly exceeded due to repeated mistakes or missteps by the Crown: at para. 98. These elements are not present in this case.

[21] We agree with the Crown that the appellant did not, until shortly before the ultimate trial date was set, make any proactive efforts to have the trial held sooner.

[22] Nor do we accept that the delay caused by the co-accused was excessive. The appellant never sought severance from his co-accused, nor do we consider that the limited delays in the case required the Crown to seek severance.

[23] We also see no error in the trial judge's Morin analysis, but for the error identified by the Crown that inured to the appellant's benefit, as the trial judge overstated the institutional delay. Properly assessed, he ought to have assessed a portion of the time between the fixing of the date for the preliminary inquiry and the beginning of the preliminary inquiry as inherent because counsel required time to prepare. He ought to have made a similar assessment of the need for time to prepare for trial once the trial date was set. Had he done so, the 22 months of institutional delay would have been significantly reduced and would have been well within the Morin guidelines. This provides further support for this court's conclusion that the transitional exceptional circumstances applies in this case to justify the delay beyond the Jordan ceiling.

(2) Sentence Appeal

[24] The appellant also seeks to appeal his sentence on the basis that, considering the limited role he played in the fraud, his three-year sentence is disproportionate with the three-year sentence imposed on Mr. Ebrekdjian and the three-and-a-half-year sentence imposed on Mr. Baghossian.

[25] We disagree. The trial judge determined that all three co-accused had cooperated in and were essential to the execution of the fraud, and he set the sentences accordingly. In respect of Mr. Baghossian, he determined that, as he was a lawyer and because of the role this status displayed in the fraud, an increase of his sentence by six months was appropriate. Therefore, on the trial judge's findings, the sentences imposed were proportionate to the degree of responsibility of the appellant in the perpetration of the fraud. We would not interfere with this assessment.

[26] The trial judge also imposed a $600,000 fine lieu of forfeiture. The Crown acknowledges that this was made in error and that the appropriate amount is $27,678. In addition, the terms attached to the fine should be varied to provide the appellant with two years to pay after his release from incarceration and, in default of payment, provide for imprisonment for a term of one-year consecutive to his other term of imprisonment.

[27] We agree that the fine in lieu of forfeiture must be varied as proposed.

Conclusion

[28] In conclusion, the conviction appeal is dismissed and leave to appeal sentence is granted but, except for the reduction in the amount of the fine in lieu of forfeiture to $27,678, with two years to pay after the appellant's release from incarceration and one-year imprisonment in the event of default, the sentence appeal is dismissed.

Paul Rouleau J.A.

G.T. Trotter J.A.

B. Zarnett J.A.