Court File and Parties

Court File No.: Old City Hall

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mehran Amini a.k.a. Mike Zachery

Before: Justice Ritchie

Heard on: February 24, 2016

Reasons for Decision released on: March 3, 2016

Counsel:

• B. Osler for the Crown
• Y. Obouhovy for the accused

Decision on Motion for Release from Custody Pending Appeal

RITCHIE J.:

Background

[1] On August 29, 2014, Mehran Amini (a.k.a. Mike Zachery) was convicted by Her Worship Justice of the Peace M. Gilani on one count of engaging in an unfair practice, contrary to the Consumer Protection Act, and two counts of carrying on business as a motor vehicle dealer without being registered, contrary to the Motor Vehicle Dealers Act. In her January 13, 2016 sentencing decision, the Justice of the Peace briefly described the circumstances of the offences as follows: "Mr. Amini appeared to be involved in an elaborate scheme whereby he purchased vehicles in Alberta. These vehicles were brought to Manitoba [where] their odometers were altered substantially and the vehicles were then brought to Ontario and sold here."

[2] On January 13, 2016, Mr. Amini was sentenced to consecutive jail terms of 270 days, 90 days and 90 days, respectively (for a total of approximately 15 months). Mr. Amini launched an appeal from the convictions and sentence the next day. Mr. Amini began serving his sentence on January 18. On the current motion, Mr. Amini is seeking to be released from custody pending the hearing of his appeal.

[3] Counsel were agreed that the authorities set out a three-pronged test that governs in situations of this nature. The applicant must establish to the satisfaction of the Court that the appeal is not frivolous, that he will surrender into custody in accordance with the terms of a release order and that his detention is not necessary in the public interest. I will deal with those issues in turn:

Are the Grounds of Appeal Viable, or is the Appeal Frivolous?

[4] The applicant submits that the learned Justice of the Peace made legal errors with respect to four issues:

Ex-Parte Trial

[5] The Justice of the Peace held the trial in the absence of the defendant.

[6] Mr. Amini appeared in person on the first two court dates. He then failed to appear in court until after his convictions. The trial had been postponed a number of times, and it appears that bench summonses were issued on two occasions. The ex-parte trial took place over five days. Mr. Amini reappeared with Counsel after the findings of guilty and participated throughout the sentencing process.

[7] The applicant submits that the Court erred by not issuing a bench warrant. I do not agree. Efforts were made to secure Mr. Amini's attendance. In my view, the Court was cautious about proceeding ex-parte in a case where a significant custodial sentence would be sought, as required by the Ontario Court of Appeal in R. v. Jenkins, 99 O.R. (3d) 561, at paragraph 33. Mr. Amini cannot complain that the trial proceeded in his absence, when he in fact failed to attend court, as he was required to do. To date, no explanation has been offered for his failure to attend court.

[8] I note also that Mr. Amini was convicted on two similar sets of offences in 2013 and 2015. He also chose not to attend those trials.

[9] There is no merit, in my view, in the submission that the Justice of the Peace erred when she conducted an ex-parte trial.

Proof of Identity

[10] The Applicant submitted that the complainant witnesses identified the defendant from two photographs and that this identification was worthless.

[11] I do not agree. This was not the case of a brief robbery where the victim was staring at the muzzle of a gun. Five complainants testified, and they had all had fairly extensive dealings with the defendant, because they had purchased vehicles from him. All five witnesses were able to identify Mr. Amini from the photographs. The photographs were apparently taken in connection with the defendant's application for a driver's licence in Manitoba.

[12] Mr. Amini was of course not in court for his trial, so identification could not take place in the normal manner. Obviously, identification was not expected to be an issue at trial, until the defendant failed to appear at his trial. Ideally, the defendant might have been identified through a type of photo lineup. However, the Justice of the Peace, who was the trier of fact, accepted the identification evidence of the five purchasers, and she was satisfied that identification had been proven. As Justice K.L. Campbell noted in R. v. Bandiera, [2013] O.J. No. 6454, at paragraph 19, issues regarding identification are as a general rule relevant only to the weight to be attributed to the evidence, not its admissibility, and the determination respecting weight is exclusively the province of the trier of fact.

[13] In the circumstances, I see no merit in the submission that there is a legal basis for overturning Justice of the Peace Gilani's finding with respect to identification.

Failure to Provide Reasons

[14] The applicant submitted that the reasons for judgment given by the learned Justice of the Peace were insufficient and that they "amounted to a perfunctory review of the evidence at trial, which was followed by a conviction". The applicant further submitted that the deficiencies in the reasons prevent meaningful appellate review.

[15] I disagree. I found Justice of the Peace Gilani's reasons to be clear, detailed, comprehensive and in compliance with the standard laid down by the Supreme Court of Canada. It was obvious from her reasons for judgment that the learned Justice of the Peace had paid close attention to the evidence during the five-day trial. I must also point out that Mr. Amini was not present or represented at the trial, so no specific issues were raised for the Justice of the Peace to consider. She simply had to determine whether the Crown's evidence proved the essential elements of the offences beyond a reasonable doubt. The trial court found a "pattern of vehicles being sourced in Alberta, brought to Manitoba, where documents appear to have been forged, showing different owners and rolled-back odometers, Ontario records showing vehicles being sold to other Ontario residents with rolled-back odometers".

[16] The Justice of the Peace concluded that the prosecution had failed to prove one of the four charges beyond a reasonable doubt, and she dismissed it. She entered findings of guilty on the other three counts. In my view, there is no merit in the submission that her reasons for judgment were inadequate.

Sentence

[17] The applicant submitted that the sentence was excessive and contrary to "the principles of totality, proportionality, parity and the principle of restraint".

[18] Again, I disagree. In the circumstances of this case, it is my view that a total sentence in the range of 15 to 18 months would be appropriate.

[19] It is obvious from the materials that sophisticated, inter-provincial frauds were being perpetrated on a significant scale. Justice of the Peace C. Triantafilopoulos described it well in his September 2015 judgment, and the comments have relevance for the present case. His Worship said that Mr. Amini had orchestrated an "elaborate scheme" that involved purchasing motor vehicles in Ontario "with high odometer readings at lower prices. He is then exporting these motor vehicles to Manitoba … Their odometer readings appeared to be rolled back significantly. At this point, it appears that the defendant, who is holding himself out to be a motor vehicle dealer, is re-selling these vehicles at substantial profit." (page 24)

[20] Mr. Amini's record of offences is also a highly significant factor. In this connection, the chart at Tab 10 of the Respondent's Compendium is very useful. In addition to the criminal convictions for importing and possessing false passports, Mr. Amini has been convicted on two occasions (2013 and 2015) of offences similar to the ones I am currently concerned with. In the 2013 case, fines totalling $315,000 were apparently imposed. In the 2015 case, Mr. Amini will be sentenced later this month.

[21] The timing of those three sets of offences is highly significant. The second set of offences (which I am concerned with) was committed about three months after Mr. Amini completed his 23-month jail sentence (for the passport offences) and while he was on probation and while he was awaiting trial on the first set of offences. Also, the third set of offences was committed just before Mr. Amini went to trial on the second set of offences. The continuing, repeated nature of the defendant's misconduct was properly factored into the trial court's decision on sentencing.

[22] Many sentencing decisions were drawn to my attention. The Justice of the Peace simply made reference to the cases that were put before her as being distinguishable for various reasons, including the fact that they involved guilty pleas, that there was no record of offences (or a less significant one) and the circumstances of the offences. There is case law that supports the sentence imposed, such as R. v. Elguindy, [1996] O.J. No. 4889, confirmed on appeal at [1996] O.J. No. 3317 (Ontario Court of Appeal), one of the authorities that was drawn to my attention. Before arriving at a sentence of 18 months imprisonment, Justice Belleghem of the (now) Superior Court of Justice made the following comments at paragraph 5:

"With respect to general deterrence therefore and protection of the public, I am satisfied that these principles require a substantial period of incarceration. The public are entitled to be protected from any fraud, let alone a repetitive, highly sophisticated, intelligent and well-educated fraud such as the accused. Rolling back odometers is one of the classic types of fraud. Any member of the public can easily be subjected to it and be victimized by such activity."

[23] Justice of the Peace Gilani dealt in detail with the applicable principles of sentencing, such as tailoring the sentencing to the circumstances of the offence and the offender, general and specific deterrence, considering aggravating and mitigating factors, considering the defendant's record of offences, applying the concepts of totality and proportionality, and protecting the public from harmful conduct. The Justice of the Peace properly considered the impact on the five victims who paid almost $240,000 for the trucks, plus substantial repair costs when they learned that the vehicles were in fact not under warranty.

[24] In addition, Justice of the Peace Gilani ordered a pre-sentence report and therefore had that additional input into the sentencing decision.

[25] The sentencing decision noted that Mr. Amini was involved in an "elaborate scheme" and that he operated under different entities and used three aliases. Justice of the Peace Gilani noted that Mr. Amini had sent messages to officials that "appeared to be mocking the legal process". She also noted, on the mitigating side, that "Mr. Amini is a solitary [care]giver for his partner who appears to have some medical issues and appears to be wheelchair bound". As it turned out, the Court rescheduled the start of Mr. Amini's imprisonment and gave him five days to make arrangements for his spouse's care.

[26] The authorities are clear that the sentencing decisions of trial courts should be given deference. In addition, I can see no error of law or principle in the trial court's decision on sentence in the present case. It is a fit sentence, in my view, and the applicant's submission that the sentence is too severe or too high is not viable.

[27] In conclusion, the applicant's grounds of appeal fail to meet the first prong of the test. It is not necessary to consider the second and third prongs but, having heard extensive submissions, I will do so.

Will the Applicant Re-Surrender into Custody as Directed, or is He a Flight Risk?

[28] In my opinion, Mr. Amini is a flight risk. He was sentenced to pay a sizeable fine and to serve a significant jail term. In addition, the prosecution intends to seek another possibly significant jail sentence later this month. Mr. Amini has been convicted of importing and possessing false passports, and he is adept at assuming false identities. I will quote from the decision of Justice of the Peace C. Triantafilopoulos on September 9, 2015, when he convicted Mr. Amini for violating the Motor Vehicle Dealers Act. The Justice of the Peace described how Mr. Amini had moved vehicles between provinces, rolled back odometers and created false paperwork. Then he continued as follows:

"This was a very elaborate effort to cover one's tracks so that it was made very difficult to locate the perpetrator.

The evidence shows that there were several aliases used and a multitude of paperwork filed to take motor vehicles out of Ontario to avoid detection and to maximize profit." (page 27)

"The officer testified that when he was doing searches through the database, he came across several aliases for this individual. There were also multiple applications for driver's licences in these various alias names. The officer further testified that Mehran Amini also used the names Saaed Adjani (ph), Joshaghani Saaed, Mike Vortish and Joshua Zachery as aliases." (page 21)

[29] In short it would be easy for Mr. Amini to disappear, and he would have good reason to do so.

[30] On the other hand, I have noted that Justice of the Peace Gilani released Mr. Amini for about five days so that he could make arrangements for his spouse, and Mr. Amini surrendered as required for his sentencing. If the Applicant had met the other two prongs of the test, I would probably have taken the same approach as the Justice of the Peace and released Mr. Amini from custody pending the hearing of his appeal. However, Mr. Amini does not meet the other two prongs.

Has Mr. Amini Established that His Continued Detention is Not Necessary in the Public Interest?

[31] In my opinion, there is strong reason to deny release.

[32] Firstly, I would stress the need to protect the public from this type of insidious fraud. Mr. Amini keeps repeating the same offences, despite new charges, trials, convictions and sentencings. As I have pointed out, he is skilled at covering his tracks, and his dealings with the justice system have not deterred him.

[33] Secondly, if Mr. Amini had acted diligently, his appeal could have been heard by now. The turnaround time for appeals in this Court can be very short, and high priority would be given to an in-custody matter. In addition, the prosecution has undertaken to cooperate and assist in ensuring that the appeal is expedited.

[34] Two transcripts have been prepared to date. Judgment in the current matter was on August 29, 2014, and that transcript was prepared on April 2, 2015. Sentencing was on January 13, 2016 and that transcript was prepared on January 25, 2016.

[35] The applicant did not order the balance of the transcripts (six, I believe) until February 1, 2016. Any delay in having the appeal heard lies squarely with the applicant.

[36] Thirdly, as a corollary to the last point, I am concerned that Mr. Amini does not appear to be very interested in having his appeal heard. I note also that the appeal of Mr. Amini's March 2013 convictions for similar motor vehicle dealer offences has not yet been heard, and the large fine remains unpaid. Also, Mr. Amini did not attend any of his three trials for these types of offences, and it would appear that he has an equal disinterest in having his appeals heard expeditiously. It makes a mockery of the justice system when proceedings are allowed to drag on and on.

[37] For all of these reasons, it is clearly in the public interest for Mr. Amini to continue serving his sentence pending the hearing of his appeal.

Conclusion

[38] I wish to thank Counsel for their factums and for the instructive case law that they provided. I have carefully considered all of the submissions on this application.

[39] In light of all of the circumstances of this case, Mr. Amini's release from custody pending the hearing of his appeal is not justified. Accordingly, the application is dismissed.

Released: March 3, 2016

Signed: "Justice John M. Ritchie"