Court of Appeal for Ontario

Date: 2024-05-14 Docket: C67917

Judges: Zarnett, Coroza and Monahan JJ.A.

Between:

His Majesty the King Respondent

and

David Holden Appellant

Counsel: Anthony Moustacalis, Aidan Seymour-Butler and Ahmad Karzai, for the appellant Alexander Hrybinsky, for the respondent

Heard: May 10, 2024

On appeal from the conviction entered on September 16, 2019 and the sentence imposed on February 07, 2020 by Justice M. Dambrot of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Following the appellant’s argument we determined it was unnecessary to call upon the Crown to respond and we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant was convicted of fraud over $5,000 and money laundering in relation to a multimillion-dollar Ponzi scheme. From 2005-2012, the appellant solicited numerous investments ranging from $250,000 to $3 million, alleging they would be used to fund corporate loans. The trial judge found that the money was used, instead, to sustain the scheme by repaying other investors, as well as to enrich the appellant. The trial judge found the appellant’s dealings with investors was “replete with deceit, falsehood and other fraudulent means”, and that in his efforts to induce potential investors to advance funds to his companies, “he knowingly, persistently, and repeatedly made false statements to them about the nature of their investments, what would be done with their funds, and about the security for their investments. At the same time, [the appellant] concealed other pertinent information about these transactions.”

[3] The appellant appeals his conviction on the basis that the trial judge relied upon a finding that he fabricated certain portions of his evidence as circumstantial evidence to infer guilt.

[4] We do not agree. In our view the trial judge did not draw an impermissible inference of guilt from his finding of fabrication. Rather, the trial judge’s single reference to fabrication with respect to one aspect of the appellant’s explanation for his behaviour merely explained why he rejected the appellant’s evidence, which was described as “preposterous”, “convoluted”, and “ever-shifting”.

[5] While he rejected the appellant’s evidence and found that it did not raise a reasonable doubt as to his guilt, the trial judge proceeded to review the Crown’s evidence in considerable detail which, in the trial judge’s view, overwhelmingly demonstrated the appellant’s fraudulent scheme. The trial judge did so precisely because he was very much alive to the requirements of R. v. W.(D.), [1991] 1 S.C.R. 742, in particular, that he could not base a finding of guilt on his rejection of the appellant’s evidence. We see no error in the trial judge’s reasoning and findings and dismiss the conviction appeal.

[6] The appellant also seeks leave to appeal his 12-year sentence, arguing it should be reduced to 8 years. He argues that the trial judge erred by: (i) seeking to punish the appellant for failing to express remorse; (ii) finding the appellant’s age to be an aggravating factor; and (iii) erroneously applying aggravating factors that were added to the Criminal Code, R.S.C. 1985, c. C-46, in 2011, thereby violating the requirement in s. 11(i) of the Charter of Rights and Freedoms that if punishment for an offence has been varied between the time of commission and sentencing, he was to be given the benefit of the lesser punishment. The appellant also seeks leave to admit fresh evidence and argues his sentence should be reduced on account of harsh incarceration conditions because of the COVID-19 pandemic.

[7] While we grant leave to appeal sentence, we dismiss the sentence appeal. The trial judge described in some detail the numerous aggravating circumstances which led him to impose a sentence near the maximum 14-year sentence for fraud. The aggravating circumstances included the appellant’s abuse of a position of trust; the significant impacts on the 65 victims of the scheme, many of whom were not sophisticated, were highly vulnerable, and were defrauded of all their assets or life savings with “catastrophic and devastating” effects; the large-scale, sophisticated nature of the fraud and its duration, which involved a total fraud of over $54 million, motivated by a desire for personal gain; the appellant’s history of fraud related-offenses, which included a 1995 conviction for 46 offenses under the Securities Act, R.S.O. 1990, c. S.5, (in which 13 investors lost a total of approximately $822,000, and which resulted in a sentence of 90 days imprisonment and two years probation) and a 2000 conviction for three counts of fraud over $5,000 (in which close to 350 investors were defrauded of approximately $4.3 million, leading to a sentence of six years imprisonment).

[8] Contrary to the appellant’s submission, the trial judge correctly applied only relevant aggravating factors. He identified the appellant’s lack of remorse as the absence of a mitigating factor rather than as aggravating, while he referenced his age in conjunction with his “antecedents”, namely, his history of dishonest dealings, which was properly regarded as aggravating. The trial judge’s reference to the factors in s. 380.1 of the Criminal Code was not an error since these were factors that have long been regarded as aggravating at common law, quite apart from the enactment of s. 380.1: R. v. Pavao, 2018 ONSC 4889, at para. 43. The appellant did not receive a punishment that was greater than that in effect at the time of the commission of the offences in violation of the Charter.

[9] Nor would we reduce the appellant’s sentence on account of COVID-19. The appellant was sentenced in February 2020, shortly prior to the onset of the pandemic. The fresh evidence he seeks to adduce merely describes general impacts of COVID-19 on his conditions of incarceration. As this court has noted, such considerations do not generally support appellate interference with a sentence: R. v. E.M.M., 2021 ONCA 436, at para. 37. The sentence imposed by the trial judge was fit.

[10] Accordingly, we dismiss the fresh evidence application and the sentence appeal.

“B. Zarnett J.A.”

“S. Coroza J.A.”

“P.J. Monahan J.A.”