WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

In addition, the order made by the trial judge restricting publication concerning the contents of exhibit 1 to the proceedings of February 1, 2017 shall continue.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Eid, 2020 ONCA 649

DATE: 20201019

DOCKET: C63333

Pardu, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roland Eid

Appellant

Roland Eid, acting in person

Marie Comiskey, for the respondent

Heard: October 6, 2020 by video conference

On appeal from the convictions entered by Justice Timothy D. Ray of the Superior Court of Justice on May 2, 2016, with reasons reported at 2016 ONSC 3221, 61 C.L.R. (4th) 155, and the sentence imposed on February 7, 2017, with reasons at 2017 ONSC 898.

REASONS FOR DECISION

OVERVIEW

[1] Roland Eid was convicted, after a judge-alone trial, of ten commercial fraud and fraud-related offences arising from his operation of 6364144 Canada Inc., carrying on business as ICI Construction Management (“ICI”). The trial judge was satisfied beyond a reasonable doubt that, in 2007 and early 2008, Mr. Eid falsified documents and transactions and withheld payments to ICI creditors in order to extract and steal $1.7 million from ICI, which he transmitted to Lebanon before going and remaining there.

[2] When convicting Mr. Eid, the trial judge concluded that Mr. Eid’s fraudulent activities caused the loss of approximately $3.8 million to ICI’s subcontractors and creditors. With the benefit of further evidence during the sentencing hearing, the trial judge accepted that the total losses in fact approximated $8 million. The trial judge imposed a global sentence of seven years imprisonment, a restitution order in the amount of $488,057.48 to designated creditors, as well as an order for a fine in lieu of forfeiture in the amount of $1.7 million, with a further five consecutive years of imprisonment in default of payment, pursuant to s. 462.37(4)(vii) of the Criminal Code.

[3] Mr. Eid, who is representing himself, appeals his conviction arguing that a miscarriage of justice occurred because he received ineffective assistance of counsel, and that the trial judge erred in law in rejecting his post-conviction application under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[4] Mr. Eid also seeks leave to appeal his sentence. The sentence appeal grounds are not specified with clarity, but we understand Mr. Eid to be challenging the trial judge’s decision to admit forensic accounting reports from Crown expert witnesses during the sentencing hearing, and the fitness of his sentence.

THE INEFFECTIVE ASSISTANCE OF COUNSEL APPEAL

[5] In his ineffective assistance of counsel appeal, Mr. Eid offers numerous complaints about his representation. The most significant allegations are that defence counsel (1) prevented him from testifying, and (2) failed to pursue and present relevant evidence in his defence, contrary to his instructions, including evidence that Mr. Eid transmitted the money to Lebanon with the knowledge of the Canadian government to assist an undercover Canadian Security Intelligence Service (“CSIS”) operation, and that the Royal Canadian Mounted Police (“RCMP”) orchestrated the fraudulent bankruptcy of ICI. He also contends that defence counsel was incompetent in (3) failing to challenge the Crown’s forensic evidence, and (4) releasing confidential client information to the RCMP.

[6] We would reject this ground of appeal. As Watt J.A. affirmed in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91, in order to succeed, Mr. Eid must establish:

i. the facts on which the claim is grounded;

ii. the incompetence of the representation provided by trial counsel (the performance component); and

iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component). [Emphasis in original.]

[7] Watt J.A. further explained that this burden is not easily satisfied and that, if the facts that underpin the claim are established, the analysis begins with the prejudice component: Girn, at paras. 91-92. If either of the factual or prejudice components are not established, there will be no need to determine whether the representation was incompetent. That is the case here.

(1) Defence counsel did not prevent Mr. Eid from testifying

[8] Mr. Eid has not satisfied us that trial counsel prevented him from testifying. In fresh evidence admitted in this appeal, trial counsel offered considered tactical reasons why it was not in Mr. Eid’s interest to testify and affirmed that Mr. Eid was consulted about this and agreed. This claim finds support in the fact that Mr. Eid, an intelligent and articulate gentleman who had interjected during proceedings on other occasions, raised no objection when defence counsel closed the defence case without calling Mr. Eid, and was seemingly content to continue with the same counsel for many months after the decision to call no evidence was made. In contrast, Mr. Eid’s affidavit and cross-examination revealed his confusion relating to material events that had occurred during the trial. Mr. Eid has therefore failed to satisfy us as to the facts on which this complaint is grounded, notwithstanding defence counsel’s failure to obtain a signed waiver from Mr. Eid of his right to testify.

(2) Mr. Eid was not prejudiced by the absence of defence evidence relating to his character, the Canadian government, CSIS or the RCMP

[9] Nor can we make a finding of inadequate representation based on Mr. Eid’s claims that defence counsel failed to pursue and present relevant evidence in his defence, contrary to his instructions. Even if everything Mr. Eid now claims to be true was established during his trial, including positive evidence about Mr. Eid’s character, the knowledge of the Canadian government about the removal of the money from Canada, his intention to remove the money to assist CSIS, and the misconduct of the RCMP, the means chosen by Mr. Eid to acquire the money still amount to fraud and support each of the offences for which he was convicted.

[10] Specifically, Mr. Eid admitted to sending the $1.7 million to Lebanon, and there was overwhelming evidence that Mr. Eid used deceptive and therefore dishonest means to acquire this money. His act of doing so put that money at risk, thereby creating a risk of deprivation for ICI and its creditors and subcontractors. This amounts to fraud, in law: R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, at p. 15. The evidence that he claims defence counsel should have pursued and presented would not have helped him. The “prejudice component” of the ineffective assistance of counsel ground of appeal is not met.

[11] In any event, we are not satisfied that defence counsel failed to pursue or present evidence relating to these matters, contrary to Mr. Eid’s instructions. In his evidence, defence counsel testified that, in consultation with Mr. Eid, a tactical decision was taken to present the “Syria Project” defence by raising a reasonable doubt as to whether Mr. Eid’s conduct was properly undertaken in pursuit of a legitimate business opportunity. This has the ring of truth, given that the evidence that Mr. Eid has identified would not have provided him with a defence, whereas the “Syria Project” defence may have done so. Moreover, defence counsel testified that he had attempted to investigate the CSIS angle in a hearing before Ratushny J., but CSIS would not support Mr. Eid’s claims, leaving the “Syria Project” defence as the most viable response. The appearance before Ratushny J. is confirmed in the court record below.

(3) Mr. Eid was not prejudiced by defence counsel’s handling of the forensic evidence

[12] Defence counsel also gave a cogent and credible explanation as to why he did not challenge the Crown’s forensic evidence or pursue further forensic evidence on Mr. Eid’s behalf. He succeeded in persuading Legal Aid Ontario (“LAO”) to fund a preliminary forensic report after initial difficulties, but that report disclosed that the Crown’s forensic reports could not be materially undercut. So, he brokered an agreement with the Crown that neither party would introduce their forensic experts during trial. This was to Mr. Eid’s tactical advantage. The failure by defence counsel to bring a forensic challenge to the Crown’s case during trial did not prejudice Mr. Eid.

[13] Moreover, it was in the context of the s. 11(b) application that defence counsel told the trial judge that at one point, LAO would not approve an expert forensic report. When doing so, he was not suggesting that he never obtained an expert forensic report, as Mr. Eid maintains in this appeal. He was attempting to attribute to the Crown responsibility for the trial delay caused by his dispute with LAO over the funding of a forensic report. Mr. Eid misunderstands the evidence.

(4) Mr. Eid was not prejudiced by the post-trial disclosure of confidential information

[14] Finally, the fact that some confidential client information was ultimately found in disclosure boxes that were returned to the RCMP cannot support an ineffective assistance of counsel claim. By this point, Mr. Eid’s trial was over and his sentence imposed. This mishap had no effect on his conviction, the instant inquiry. Nor is there any basis for concluding that this compromised Mr. Eid’s appeal. The appeal is based on the trial record, not the confidential documents that fell into the hands of the RCMP.

[15] We therefore dismiss the ineffective assistance of counsel ground of appeal.

THE SECTION 11(B) APPEAL

[16] The decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, was released after Mr. Eid was convicted but before he was sentenced. Defence counsel brought a post-conviction s. 11(b) application. The trial judge calculated the overall delay as approximately 46 months. At the time the trial judge did not have the benefit of the decision in R. v. K.G.K., 2020 SCC 7, 443 D.L.R. (4th) 361. The overall delay should not have included deliberation time and was therefore approximately 44 months.

[17] After deducting defence delay of 9 months, and 7.5 months of delay that had expressly been waived by defence counsel, from the 46-month overall delay that he was working with, the trial judge found the net delay, including the two months deliberation time, to be 29.5 months, a presumptively reasonable period of delay. He deducted a further four months of delay as exceptional circumstances, reducing the remaining delay further to 25.5 months. Mr. Eid disputes the trial judge’s attribution of delay to the defence, claiming that he should have found that the delay exceeded the 30-month presumptive ceiling.

[18] We need not decide whether the trial judge committed the errors Mr. Eid alleges, or recalculate the remaining delay used by the trial judge in light of K.G.K. The trial judge ruled that even if he erred in identifying the sources of delay and the 30-month presumptive period was exceeded, s. 11(b) was not breached by the delay that occurred in this complex, transitional case. He was correct in that assessment.

[19] We dismiss the s. 11(b) ground of appeal.

THE SENTENCE APPEAL

[20] The trial judge did not err in admitting the Crown’s forensic accounting reports. The trial judge had discretion to admit, during the sentencing hearing, relevant evidence relating to the impact and hence the seriousness of the offence.

[21] Nor is the sentence unfit. It falls within the appropriate range for commercial frauds of this magnitude and sophistication. Mr. Eid has identified no errors in principle that occurred during sentencing, and none are evident.

[22] Leave to appeal sentence is granted but the sentence appeal is dismissed.

CONCLUSION

[23] We have dismissed all grounds of appeal relating to both the convictions and the sentence. The appeal is therefore dismissed, and both the convictions and the sentence are affirmed.

“G. Pardu J.A.”

“David M. Paciocco J.A.”

“A. Harvison Young J.A”