COURT FILE No.: Brampton 13-12577

DATE: February 26, 2015

Citation: R. v. Islam, 2015 ONCJ 113

ONTARIO COURT OF JUSTICE

Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

nazrul islam

Before Justice Richard H.K. Schwarzl

Heard on November 28 and December 1, 2014; February 3, 9 and 26, 2015

Reasons released on February 26, 2015

Ms. Sonia Anderson and Mr. Michael Michaud...................................................... for the Crown

Mr. Joshua Tong................................................................................................... for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1.] In August, 2013 a motorist named Arif Hossain was driving while in possession of a fraudulent insurance certificate. The certificate was issued from the Lucky Insurance Brokerage where the Accused was employed at the time as an insurance agent. The central issue is whether the prosecution has proved beyond a reasonable doubt that it was the Accused who knowingly issued the false insurance certificate. The Accused also brought an application alleging that his constitutional right to be tried within a reasonable time was violated and, if it was, he seeks a stay of the proceedings.

2.0: Did the Accused knowingly issue a false insurance certificate?

[2.] The driver, Arif Hossain, was a challenging witness who gave contradictory evidence on several material points. He contradicted himself several times regarding any contact he did, or did not, have with the Accused after the police became involved. I do not believe his claim that the Accused typed a letter of complaint to the provincial regulator about Lucky Insurance which tends to exonerate the Accused. The Accused’s name is misspelled throughout. It makes no sense to think the Accused would deliberately do that. Having said this, I am suspicious that Hossain prepared it on his own as he would have no reason whatsoever to try to exculpate the Accused when do so would tend to undermine his defence to driving without insurance. I do not believe Mr. Hossain when he claims to be an innocent dupe, as I believe he knew very well what was happening as was shown, for example, by a false Guelph address being used by him on his driver's licence, the insurance applications, and the car ownership.

[3.] Despite significant problems with many, but not all, aspects of Mr. Hossain’s evidence, after taking his evidence together with the documentary evidence, the evidence of Abid Khan regarding the secure record keeping system in insurance offices, and the wholly reliable evidence of the police officer, I make the following findings of fact regarding Mr. Hossain:

• In April, 2013 he met the Accused at Lucky Insurance to get a quote for insurance for a car he was planning to buy.

• The Accused told him a six month policy would cost him $1,547.06.

• Mr. Hossain paid the Accused $1,550 in cash as a precondition to having an insurance certificate issued.

• Mr. Hossain was not issued a receipt for his payment. If he had been there would be an official record and/or copy of the receipt with the brokerage, but none exists.

• On May 6, 2013 Mr. Hossain went to Lucky Insurance at which time insurance applications and insurance certificates were created by the Accused[^1]. The Accused gave Mr. Hossain an insurance certificate for the car he was buying[^2]. The certificate states that the insurer is Jevco Insurance. The stated nature of the certificate is a binder policy for six months retrospectively commencing April 4, 2013 and ending October 3, 2013.

• After receiving the insurance certificate, Hossain bought the car on May 6, 2013[^3]

• When stopped by the police on August 16, 2013 Hossain presented the insurance slip together with the Accused’s business card from UK Insurance Brokers. The fact that Hossain had this card proves that he continued communicating with the Accused even after the Accused was no longer working for Lucky Insurance.

[4.] I completely accept all of P.C. Mihelic’s evidence as it was independent, reliable and accurate. Of particular importance is the admission made by the Defendant to the police officer at a time when the Accused was nothing more than a potential witness to a charge against Mr. Hossain for driving without insurance. The Accused told the police officer that he had issued a temporary insurance certificate to Mr. Hossain while working at Lucky Insurance. When the officer asked the Accused to provide proof of payment by Mr. Hossain for insurance, the Accused sent the officer a copy of a void cheque[^4] from Mr. Hossain. The Accused did not provide what was requested, which is consistent with Mr. Hossain’s and Mr. Abid Khan’s evidence that no proper receipt was ever issued as one would exist on file had it been done.

[5.] Abid Khan’s evidence regarding the workings of how an insurance certificate is created was credible and reliable. He stated that any insurer, including Jevco Insurance, requires a minimum of a completed insurance application known as an OAF-1, and a down payment from the insured. Regulations require that if the down payment is cash, it must be placed into the broker’s trust fund. In the alternative, an applicant can pay by certified cheque or credit card instead of cash. These payment methods are mandated by industry regulations because each would yield a clear and easily reproducible money trail. In this case, Mr. Khan found no deposit of cash from Mr. Hossain into his trust account, nor did he find any record of payment by certified cheque or credit card, which is consistent with the evidence of both Mr. Hossain and P.C. Mihelic. No one at Lucky Insurance would have printed an insurance certificate for free. I find that the Accused received cash from Mr. Hossain and kept it for himself.

[6.] Mr. Abid Khan described an industry-wide broker management computer system – SIG-XP - wherein agents are given unique passwords which are known only to themselves. The computer system documents all events and tasks associated with a customer’s file. The system saves electronic copies of all OAF-1s that are then capable of being printed and signed by both the agent and the customer. Mr. Khan testified that regulations require all parts of the form to be filled in electronically and that the completed and signed application is to be kept with the file. This is sound business and I accept it as true.

[7.] In this case, Mr. Khan looked up the policy number found on the face of Mr. Hossain’s insurance certificate. In looking at the broker’s SIG-XP interface, Mr. Khan printed off all activities associated with the file. All activities show that the Accused was the only person accessing this policy file and, with the single exception of a date change made by the Accused on June 17, 2013, all activities are from May 6, 2013. Two auto insurance applications were created, both of which stated a premium of nearly $1,550 for a one year policy. Mr. Hossain was a high risk insured. Mr. Khan’s entirely believable evidence is that an annual premium of $1,550 was “impossibly low” and should have been closer to $4,300 per year.

[8.] The first application was printed at 11:52 on May 6 and bears the name “Islam” on it[^5]. The policy period on this application is from April 4, 2013 to April 4, 2014. In his evidence, Mr. Hossain testified that after being charged by the police for driving without insurance, he demanded a receipt from the Accused. At trial Mr. Hossain produced a document that he said the Accused called a receipt and gave to him in late August 2013.[^6] This “receipt” is a copy of page 5 of the first auto application because it to bears the Accused’s name and a date and time of 11:52 on May 6, 2013. It does not, however, bear the Accused’s signature nor that of any other agent. Only Mr. Hossain’s signature appears on it. It is common knowledge that a receipt of payment is not signed by the customer, but by the merchant.

[9.] In cross-examination, Mr. Khan was confronted with a printed copy[^7] of the first application, which copy bears Hossain’s signature alone. He said it did not come from his files because he does not have the original as required by regulation. The last page is identical to the purported receipt given to Mr. Hossain by the Accused. I find that this document must have been in the possession of the Accused since August 2013 until it was introduced at the trial, which explains why it is not in the broker’s file as it should be. It also strongly suggests that the Accused has been in possession of the entire paper contents of the Hossain file at all material times. This helps explain why Mr. Khan could not locate any of the printed documents and why the Accused was able to immediately produce the so-called receipt to Hossain and the void cheque to P.C. Mihelic. He produced them at a time when he was no longer working for Lucky Insurance.

[10.] Mr. Khan pointed out that the application signed by Mr. Hossain is invalid because it was never signed by the Accused or any other agent and because the required payment plan portion was not completed both of which are required by regulation. Therefore, any certificate issued in these circumstances would be invalid and any agent doing so would know it.

[11.] The insurance certificate possessed by Mr. Hossain bears on its face the Accused’s name and the date of May 6, 2013 with a print time of 11:54. The insurance certificate has the same start date as the first application, being April 4, 2013. Mr. Khan testified that brokers are permitted to manually insert dates into an insurance certificate.

[12.] The second insurance application was printed at 12:01on May 6 and also has the Accused’s name on it[^8]. The second application differs from the first one only in the policy period. The second application is from May 6, 2013 to May 5, 2014, which makes more sense than the first one because the second application coincides with the purchase date of the car.

[13.] Mr. Khan gave convincing evidence concerning industry-wide duties and definitions. For example, Mr. Khan said that a “binder” policy is a temporary policy that insures a new customer for only 30 days. I accept his evidence that the Accused, as an insurance agent, would know this limitation. Therefore, the Accused would also know that to issue a binder insurance certificate for six months would be improper and that any binder certificate turned over to a customer would be a false document.

[14.] Mr. Khan’s further reliable evidence is that Jevco Insurance will not provide any coverage until they have received a properly completed and signed Application of the new customer and proof of payment. Mr. Khan testified that the Accused had done more than fifty applications with Jevco Insurance in the past and knew about these requirements. Mr. Khan submitted to the court a sample email that the Accused had sent to Jevco for a prior customer to support his evidence.[^9] However, no such email is on record for this particular transaction. Accordingly, without Jevco’s approval the Accused knew that he was not entitled to issue the insurance certificate he gave to Mr. Hossain.

[15.] Mr. Abid Khan’s credibility was severely attacked. I found that on matters not pertaining to the SIG-XP documents and brokerage and insurance companies policies, procedures, and regulations, some the attacks launched tended to show Mr. Khan as less than believable. For example, when shown the Lucky Insurance Employee Plan of Supervision[^10], he said it must have been altered. Even a cursory inspection of the document shows it has not been changed or edited in any way. Mr. Khan also denied that the Accused ever demanded money from him after leaving his employ. When confronted with a lawyer’s demand letter for money[^11], Mr. Khan grudgingly acknowledged receipt but then added it wasn’t a real demand because there was never any follow-up by the Accused.

[16.] I found one assault on his integrity backfired. I refer to that point in the evidence where the Accused confronted Mr. Khan with what was purported to be the Accused’s resignation letter dated May 27, 2013[^12] which accuses Mr. Khan of making illegal offers and of improperly using his password. Mr. Khan’s reaction was both swift and believable. Without hesitation he said it was a forgery because it is different from the one he has in his personnel file for the Accused, and which he shared with the Registered Insurance Brokers of Ontario so that they have it too. Mr. Khan produced the resignation[^13] in his file which is dated June 17, 2013 which is also the last date the SIG-XP shows activity on the Hossain account. Both letters bear the same signature and I believe the Accused wrote both of them. However, the letter in Mr. Khan’s file is cordial and does not make any accusations. No evidence was given by anyone to explain this disturbing contradiction between resignation letters written by the Accused. I believe Mr. Khan that the resignation letter in his file is genuine and the other one is not. It appears that the letter dated May 27, 2013 was manufactured by the Accused after the fact to dovetail with other attacks on Mr. Abid Khan’s credibility.

[17.] Much was made by the Accused in cross-examining Mr. Khan regarding discrepancies between the SIG-XP activity log times and the times shown on the printed documents corresponding to those activities. While the times are different, the time gaps between the activity log and the printing are the same in every case. It was suggested to Mr. Khan that it was he who manipulated the system. I accept his evidence that as an industry-wide file management system, one cannot alter activities or logs because to be able to do so would undermine the integrity of the records system. I find that Mr. Khan satisfactorily rebutted the suggestions made by the Accused when he testified that in a busy office there is often a delay between logging an activity and the time a related document comes off the printer. In any case, such discrepancies as time are minor. Further, they are irrelevant given the Accused’s admission to P.C. Mihelic that he was the one who issued the certificate to Mr. Hossain.

[18.] The defence called one witness, Mr. Foaz Khan. He testified that the Accused had been his agent at Lucky Insurance. After the Accused left, he said that Abid Khan offered him free insurance and a cash bribe if he would sign a statement against the Accused. Foaz Khan said he was offended by the illegal offer and declined as he wanted nothing to do with this situation. He then said a year later the broker cancelled his insurance. In cross-examination, Foaz Khan admitted that he never reported the bribe to police despite the broker’s attempt to “frame” the Accused. He also conceded that even though he wanted nothing to do with this situation, he happily provided a statement to an investigator hired by the Accused. He also admitted that he stayed with Lucky Insurance for nearly another year and left only when he could no longer afford to pay the premiums.

[19.] Abid Khan denied the allegations made by Foaz Khan. He said that not only was such alleged conduct criminal, but if reported to the provincial regulatory body, he would lose his broker’s licence. The matter was already in the hands of the police and there would be no need for the broker to jeopardize his licence by doing what Foaz Khan claimed. There was no evidence Foaz Khan ever reported the broker to the regulator. I am highly dubious of Foaz Khan’s evidence and I place no weight on it. His evidence appeared as fabricated as the May 27 resignation letter put to Abid Khan.

[20.] After carefully assessing the evidence that I accept as a whole, I find that the Accused knowingly and without any legal justification, prepared and issued a fake auto insurance certificate to Mr. Hossain in May, 2013. I base this finding on a number facts including:

(i) He issued a binder policy for six months when he knew he was not allowed to issue it for more than 30 days;

(ii) He issued the insurance certificate without first receiving authorization from the Insurer;

(iii) He offered a premium at a rate substantially below what it should have been;

(iv) He took cash payment and failed to issue a proper receipt and failed to produce one to either Mr. Hossain or the police when asked to do so;

(v) The auto insurance application in his possession was not valid because it was not properly completed; and

(vi) He admitted to P.C. Mihelic that he was the one who issued the certificate.

3.0: Was the Accused’s section 11(b) Charter right violated in this case?

[21.] The Accused was charged on September 5, 2013. His trial ended nearly 17¾ months later on February 26, 2015.

Charge date to JPT – September 5, 2013 to January 21, 2014

[22.] I agree with counsel that the 4½ month period spanning September 5, 2013 to the time the parties completed the pre-trial conference on January 21, 2014 is properly characterized as inherent time requirements.

Setting the trial to the original trial dates – January 21 to December 1, 2014

[23.] At the pre-trial conference, the parties agreed that the trial would take one and a-half days to complete. When setting the trial dates on January 21, 2014 the defence said it was ready as soon as the following week. In a supporting Affidavit to this application, the defence as available for dozens of dates thereafter. None of these dates were put on the record when the dates were set. In any case, the first dates offered by the court were 10¼ months later were November 28 and December 1, 2014. They were immediately accepted by both parties.

[24.] The Applicant submits that the week between January 21 and January 28 (when the defence was ready) is neutral time and that the remainder until December 1, 2014, or 10 months, is attributable entirely as institutional delay. I do not agree with this submission. While the defence may have been ready for this trial almost immediately, a reasonable time to prepare must be granted to both parties. This was a document-heavy trial with two long prosecution witnesses, especially Mr. Abid Khan. Subpoenas had to be issued and served. Witnesses needed to be prepared. In my assessment, a reasonable time to permit preparation would be 1¼ months. Therefore, I assign 9 months as institutional delay and 1¼ months as inherent time requirements.

First Trial dates to Last Trial Date – December 1, 2014 to February 26, 2015

[25.] The time between the second scheduled trial date, December 1, 2014, and the final trial date, February 26, 2015 is nearly 3 months. The defence submits that of this time, 7 days is Crown delay, 7 days is Defence delay, 7 days is inherent time requirements, with the remaining 2 ¼ months being institutional delay.

[26.] The chronology of this time period is unusual. When the trial did not finish on December 1, 2014 the parties agreed that one further day was required to complete the matter, making this case a two and one-half day trial. In part, the extra time was required due to the unforeseen need of one of the witnesses for an interpreter. When the need for the interpreter was discovered, considerable time (nearly half a day) was lost securing one. To this extent, the trial was made longer in part by “other” causes, which must be characterized as neutral time. Also, I find the original trial estimate of 1½ days was overly optimistic given the type of offence charged, the documentary nature of much of the trial, and the very long time that Mr. Abid Khan was in the witness box.

[27.] After a couple of dates were offered and then rejected by one or the other of them, the parties accepted April 27, 2015 as the continuation date. The defence then arranged for an 11(b) Charter application to be heard on February 3, 2015. As circumstances evolved, both parties were available to complete the Crown’s case on February 3. I ordered that the 11(b) Charter application be deferred until after all evidence was heard. Due to the short notice, two anticipated defence witnesses were not available on February 3. As a result, one-half day of evidence was heard on February 3, 2015. At that time, two more half-days were booked, being February 9 and 26, 2015. Only one defence witness was available February 9, thereby necessitating a second half-day to accommodate the second defence witness and for submissions and judgment.

[28.] On February 9, 2015 the defence decided to call only one witness and dropped the idea of calling the second witness. The parties agreed that February 26 would be devoted to submissions on the trial proper and the 11(b) Charter application.

[29.] In R. v. Meisener, 2004 CanLII 30221 (ON CA), [2004] O.J. No. 3812 (C.A.), the Court of Appeal held that inherent time requirements include the rescheduling of trials not held or completed due to unforeseen reasons and ruled further that a reasonable time for rescheduling the trial was three months.

[30.] In this case, the trial could not be completed within the time originally estimated for two reasons. First, an unforeseen delay was caused by the need to find an interpreter for Mr. Hossain. Second, Mr. Abid Khan was a very long witness, in part due to his connection with, and interpretation of, significant documents related to this case. In my view, both parties underestimated the necessary trial time for this case, even without a the interpreter problem. In any case, the trial was completed within the period recommended in Meisener, supra.

[31.] For the three months between December 1, 2014 and February 26, 2015 I assign 1½ months as “other” reasons for delay, and 1½ months as inherent time requirements. I cannot ascribe any institutional delay in these unique circumstances.

Prejudice

[32.] The Accused deposed that he has suffered prejudice from the delay in this trial. He has lost business from being charged, causing financial strain at home. The additional court days have increased his legal fees. He has suffered from stress, requiring him to go on medication. He is anxious about losing his business license if convicted. He and his family suffer from shame and he has been unable to travel outside of Ontario.

[33.] I find that most of the prejudice suffered by the Accused comes not from any delay, but from being charged. I agree with the Accused that the longer the case continues, the greater the general prejudice. But in this case, I find that the overall delay was reasonable. The total institutional delay I have assessed is 9 months and is within the guidelines for this region. Even if half of the delay between December, 2014 and the end of the trial could be characterized as institutional delay, that would bring the maximum institutional delay to 10½ months, which is just beyond the guidelines and not in any way excessive or unjust.

[34.] As for specific prejudice, the extra trial time was largely the product of factors beyond anyone’s control and by an underestimation of the actual time needed for trial. The travel restrictions could have been ameliorated by an application for judicial review, but there is no evidence the Accused attempted one. It appears that at one point the Crown was willing to consent to lift the travel restriction, but the Accused did not follow through with it because he couldn’t afford to travel. I find that any specific prejudice in this case was relatively minor and certainly did not in any way tip the scale of this application in his favour.

[35.] For the foregoing reasons, I find there is no material prejudice and I apportion the reasons for delay over the nearly 18 months of this case as follows:

Inherent Time Requirements[^14]: 7¼ months

Limitations on Institutional Resources: 9 months

Other Reasons[^15]: 1½ months

TOTAL: 17¾ months

[36.] I find that the Accused has failed to establish that his right to be tried within a reasonable time was probably violated in the unique circumstances of this case. His application is dismissed.

4.0: Conclusions

[37.] The Accused’s section 11(b) Charter right was not breached. After carefully assessing the evidence as a whole, a verdict of guilty will be registered on the sole count of fraud.

Original signed by Justice R.H.K. Schwarzl

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice

[^1]: See Exhibits 5, 11 and 12 [^2]: See Exhibit 2 [^3]: See Exhibit 1 [^4]: See Exhibit #4. [^5]: See Exhibit 11. [^6]: See Exhibit 6. [^7]: See Exhibit 16. [^8]: See Exhibit 12. [^9]: See Exhibit 10. [^10]: See Exhibit 13. [^11]: See Exhibit 17. [^12]: See Exhibit 14. [^13]: See Exhibit 15. [^14]: 4½ months for the intake; 1¼ months for trial preparation; 1½ months due to underestimating trial time. [^15]: This delay was caused by the unforeseeable need for an interpreter for one of the witnesses.