Ontario Court of Justice
Date: 2017-09-11
Court File No.: Toronto, College Park 17-75000277
Between:
Her Majesty the Queen
— AND —
Rupen Balaram-Sivaram
Before: Justice J.W. Bovard
Heard on: July 17, 18, 19, 2017
Reasons for Judgment released on: September 11, 2017
Counsel:
- E. Akriotis, counsel for the Crown
- J. Rabinovitch, counsel for the accused Rupen Balaram-Sivaram
Bovard J.:
[1] Introduction
[1] These are the court's reasons for judgment after the trial of Rupen Balaram-Sivaram on two counts of attempted fraud over $5,000 (counts 1, 2), two counts of possession of property that he knew had been obtained by the commission of an offence punishable by indictment (counts 3, 4), and four counts of breaching a recognizance of bail (counts 5, 6, 7, 8).
[2] The Crown alleges that Mr. Balaram-Sivaram knowingly engaged in a fraudulent scheme in which he collaborated with another person to cash two cheques that were stolen. In the alternative he was willfully blind to the fact.
[3] In addition, the Crown alleges that he was on a recognizance of bail and that he twice breached a condition of house arrest and twice breached a condition that he not possess financial instruments.
[4] Mr. Balaram-Sivaram maintains that he did not know that the cheques were stolen. Further, he was not involved in a fraudulent scheme regarding the cheques. In addition, there were no circumstances that would allow his behaviour to be characterized as having been willfully blind.
[5] Regarding the breach of recognizance charges, Mr. Balaram-Sivaram states that when he left his residence to deposit the cheques in the bank he was working. Therefore, he comes within the "work" exemption to his house arrest condition.
[6] Furthermore, he did not have control over the funds in the cheques so he was not contravening the condition of his recognizance that prohibited him from possessing financial instruments.
[2] The Evidence
[7] Counsel submitted the following agreed statement of facts.
Agreed Statement of Facts:
Rupen Balaram-Sivaram was bound by a recognizance on October 24, 26, and 27, 2016. An exemplified copy of that recognizance is filed as Exhibit 2.
On 24 October 2016, Mr. Balaram-Sivaram attended the Bank of Montreal branch located at 242 Bloor St W in Toronto. Mr. Balaram-Sivaram deposited a cheque, filed as Exhibit 3, into the trust account for Sirius Legal Services Inc.
On 26 October 2016, Mr. Balaram-Sivaram again attended the Bank of Montreal branch located at 242 Bloor St W in Toronto. Mr. Balaram-Sivaram deposited a further cheque, filed as Exhibit 4, into the trust account for Sirius Legal Services Inc.
On 27 October 2016, Mr. Balaram-Sivaram attended the Bank of Montreal branch located at 242 Bloor St W in Toronto to inquire as to why he had been denied access to his online accounts. Toronto Police attended, and Mr. Balaram-Sivaram was placed under arrest.
Mr. Balaram-Sivaram is the sole Director of Sirius Legal Services Inc.
Mr. Balaram-Sivaram previously possessed a 'P1' licence from the Law Society of Upper Canada to provide legal services as a paralegal. As of 11 April 2011, he was no longer licenced.
Mr. Balaram-Sivaram voluntarily provided a videotaped statement to police on 27 October 2016.
[8] On consent, the following were made exhibits:
a. The agreed statement of facts – exhibit 1; b. The recognizance that bound Mr. Balaram-Sivaram – exhibit 2; c. The cheque involved in counts 1, 3, 5, 7 – exhibit 3; d. The cheques involved in counts 2, 3, 4, 6, 8 – exhibit 4; e. Affidavits of ownership of the cheques from the issuers and intended recipients of the cheques – exhibits 5, 6, 7, 8.
[9] The cheques and affidavits of ownership of the cheques establish that the Ministry of Finances of the Government of Quebec and a private company in Ontario issued one cheque each for services rendered to two different recipients. Neither intended recipient received the cheques. Instead, a person that is unknown to the parties tried to cash the cheques.
Bank Teller Testimony
[10] Mr. Daniel Wright testified that he is the assistant manager at the Bank of Montreal in the Manual Life Center in Toronto. On October 24, 2016, Mr. Wright was working as a teller. Mr. Balaram-Sivaram came in to deposit a cheque made out to Nortrax Quebec Inc. (exhibit 3). Mr. Balaram-Sivaram wanted to deposit it into a trust account that was in the name of "Sirius Law".
[11] At first, Mr. Wright testified that Mr. Balaram-Sivaram told him that he was a lawyer and that he was depositing the cheque for the purpose of holding it for Nortrax Quebec Inc. This cheque is regarding counts 1, 2. But later in his testimony, Mr. Wright conceded that he did not remember if Mr. Balaram-Sivaram told him that he was a lawyer. He said that someone gave them that information when Mr. Balaram-Sivaram opened the account. But Mr. Wright assumed that Mr. Balaram-Sivaram was a lawyer because of the type of account that he opened.
[12] On October 26, 2016, Mr. Balaram-Sivaram came to the bank. Mr. Wright attended to him. He wanted to deposit another cheque (exhibit 4). This one was made out to Metric Storage Systems / Metric Packaging Solutions. This cheque is regarding counts 2, 4, 6, 8.
[13] Mr. Wright told Mr. Balaram-Sivaram that since it was made out to a person other than him they would have to hold it to verify it. Mr. Balaram-Sivaram did not object. He did not ask for the cheques back or give Mr. Wright any information to assist him in verifying the cheques. Both cheques indicated on the back that they were held in trust.
[14] On October 27, 2016, Mr. Balaram-Sivaram came into the bank to complain that he could not access their online banking service. His accounts were frozen and the bank had cancelled his debit card. He contacted the bank's telephone help line but they told him to go directly to the bank branch. When he got there Mr. Wright called the police because he had information that the cheques were stolen.
[15] Mr. Wright said that the "Sirius Law" account was opened as a lawyer's account. Therefore, there was a direction that the interest be sent to the Law Foundation of Ontario.
Immigration Consultant Testimony
[16] Mr. Peter P. Lam is an immigration consultant who has an office in the same building as Mr. Balaram-Sivaram's company, which he called "Sirius Legal Services". Mr. Balaram-Sivaram told him that he had a paralegal company called "Sirius Legal Services". He told Mr. Lam that he could manage lawyers' trust accounts. He characterized Mr. Balaram-Sivaram's business as a collection agency. Their offices are in the same hallway of the building. He has known Mr. Balaram-Sivaram for about 10 years.
[17] At first they were friendly. Once, Mr. Lam even acted as surety for Mr. Balaram-Sivaram. He recalled that it was perhaps in 2013.
[18] But Mr. Balaram-Sivaram did not have any work so Mr. Lam would give him collection work and immigration cases to work on. Mr. Balaram-Sivaram also helped Mr. Lam to set up his computer system and he would trouble shoot his computer problems.
[19] Over time, their relationship deteriorated. In the end, they hardly spoke to each other. Now, they have not spoken for over one year.
[20] He denied that he went to the bank with Mr. Balaram-Sivaram in October 2016. Their relationship was so bad that he would not go anywhere with him. In addition, he did not give Mr. Balaram-Sivaram permission to go to the bank with anyone else.
[21] That was the case for the Crown.
Defence Evidence
[22] The defence called Detective Olsen who testified that Mr. Balaram-Sivaram told him that Mr. Vallipuarum Thasauarathan gave him the cheques. Mr. Balaram-Sivaram showed the detective a "work order" that authorized Mr. Balaram-Sivaram to do work for Mr. Vallipuarum Thasauarathan.
[23] As a result of information received from Mr. Balaram-Sivaram, Detective Olsen asked an officer in Keswick, Ontario to investigate an address. Apparently, a number of persons lived there and there was an issue with one or more of them registering a business to the address. However, the investigation revealed that Mr. Vallipuarum Thasauarathan did not live there.
Accused's Testimony
[24] Mr. Balaram-Sivaram testified that his legal training is self-taught. He used to be a licensed paralegal. Sirius Legal Services Inc. is his company. He does immigration work, traffic tickets, collection work, superior court and small claims court matters. He also has studied accounting.
[25] Between August and October 2016, he spoke with some persons regarding managing accounts for lawyers and real estate agents. In his testimony he named one lawyer and one real estate agent with whom he spoke.
[26] Mr. Balaram-Sivaram wanted to open a trust account in order to provide these services. He asked Mr. Lam if he would open a trust account, but he could not because his business was not incorporated. In his statement to Detectives Olsen and Dennis on October 27, 2016, page 16, he stated a different reason.
Because Peter is 70 years old. He doesn't want to respond or answer to the ICCLC and explain to them when he gets audited why do you have a million dollars sitting here, why a hundred thousand dollars is going there. He doesn't want to do that. He's a very stubborn guy.
[27] So on August 26, 2016, Mr. Balaram-Sivaram went to the bank to open a trust account for these purposes. He told the bank that he had a legal services corporation. Mr. Lam let him use his address on the account.
[28] Mr. Balaram-Sivaram filled out the documents that the bank required to open a trust account. He told them that he would be handling funds in trust for lawyers and real estate agents. He understood that every cheque had to be held for five days. He did not think that a trust account yielded interest. However, he signed a form "Re: lawyers Trust, Notary Trust, Real Estate Trust &/or Chartered Accountant Trust Accounts" (exhibit 12). It provides that all interest on the Sirius Legal Services Inc. account that he was opening be remitted to the Law Foundation of Ontario.
[29] Under the part of the form that says "Deposit interest on Transit and Account Number …. in the name of Sirius Legal Services Inc." it says "(Legal Name of the lawyer, law firm, notary, real estate broker etc. in whose name the account is kept)". Mr. Balaram-Sivaram maintained that he just signed the forms that the bank employee gave him without paying much attention to them. He was not holding himself out to be a lawyer or a paralegal.
[30] Some of the bank forms were online and operated with drop-down menus that provided options in order to categorize the type of business that he had. He said, however, that the forms did not have a category for his type of business. The form is exhibit 9.
[31] Under "account restrictions" the bank documents indicate "normal processing". He agreed that in the account documentation his account is referred to as "Agreement for business banking". However, he says that the bank employee that served him simply copied his profile from an application that he made for an account on November 25, 2015. He did not read the forms that they gave him. He just signed them because he was not doing anything wrong.
[32] Before he opened the bank account into which he deposited the cheques in question he had only one bank account. He used it to make deposits and pay bills.
[33] In September 2016, a friend of Mr. Balaram-Sivaram, Mr. Lloyd Wijawratnan, referred Mr. Vallipuarum Thasauarathan to him. Mr. Balaram-Sivaram agreed to help Mr. Thasauarathan to get legal representation. Mr. Thasauarathan gave Mr. Balaram-Sivaram his driver's licence number. On September 27, 2016, Mr. Thasauarathan retained Mr. Balaram-Sivaram and signed an agreement in Mr. Lam's office (exhibit 10).
[34] Mr. Balaram-Sivaram testified that someone from "University Settlement" witnessed the retainer. In his statement to the police he said that the witness was a lady that was with Mr. Thasauarathan. He did not ask her name. He testified that he must have misunderstood the officer's question while he was giving his statement. But in his testimony he said that Mr. Thasauarathan came to his office alone.
[35] Mr. Thasauarathan told Mr. Balaram-Sivaram that he would send him cheques that he was entitled to as a result of settlements of court cases. He showed Mr. Balaram-Sivaram on his phone a corporation profile generated by the government of Quebec about Nortrax Quebec Inc. He told him that he owned the company.
[36] Mr. Balaram-Sivaram probably forgot to mention the company profile to the police in his statement because he was tired and hungry and he was focused on going home.
[37] On another day, Mr. Thasauarathan told Mr. Balaram-Sivaram that he owned another company, too. He believed Mr. Thasauarathan without any type of confirmation of his authenticity.
[38] Mr. Balaram-Sivaram testified that he did not do any due diligence checks on Mr. Thasauarathan because a friend that he trusted recommended Mr. Thasauarathan to him. On page 6 of his statement to the police he said that he did his due diligence by checking his identification and determined that he did not have a criminal record or any pending charges. He also confirmed that his license was not suspended.
[39] In his statement to the police he said that he called the Crown attorney's office at the College Park court house and confirmed that Mr. Thasauarathan did not have any pending charges. He spoke to a clerk who gave him the information. I find this highly doubtful.
[40] Mr. Balaram-Sivaram was to deposit cheques that he would give him and then allocate funds as instructed. He would be allowed to take a percentage from the cheques for his fee.
[41] He expected to withdraw funds from the account and allocate them once he received written authorization and directions from the court. He did not intend to take out any of the money otherwise.
[42] Mr. Balaram-Sivaram testified that there was nothing to prevent him from taking money out of the account other than his personal honesty. But his understanding was that one does not withdraw funds from a trust account without authorization.
[43] A courier delivered the cheques to Mr. Balaram-Sivaram from Mr. Thasauarathan. He took the cheques to the bank, endorsed them and deposited them. He asked that the bank hold the cheques for five days. He did not have any concern whatsoever about the cheques. The bank provided for only a two-day hold. He was not surprised that he did not receive any court documents with the cheques because since there would be a hold on them he would not be able to disburse the money anyway.
[44] No one at the bank told him that there was a problem with the cheques. When he went to the bank to complain about not being able to access online banking the police came and arrested him. He has not heard from Mr. Thasauarathan ever since.
[45] He gave the police Mr. Thasauarathan's driver's license number and S.I.N. card number, but not his phone number or email because they can be changed.
[46] Mr. Balaram-Sivaram denied that he was involved in a scheme to deposit stolen cheques and convert them into cash later.
Recognizance Conditions
[47] With regard to the breach of recognizance charges, condition 4 of his recognizance required him to remain in his residence "at all times seven days a week except",
- for medical emergencies involving you or a member of your immediate family …
- for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order;
- for purposes of travelling directly to, from and while at work or school;
- unless you are in the presence of our surety or an adult approved of in writing by your surety, dated and signed;
[48] Condition 11 required him "Not to possess any financial instruments or documents or electronic devices not registered in your own name".
[49] That was all of the evidence.
[3] The Position of the Defence
[50] The defence concedes that Mr. Balaram-Sivaram deposited the cheques, but not that he was involved in a fraudulent scheme to deal with stolen cheques. He was not attempting to defraud the bank. Nor did he know that the cheques were stolen. He never attempted to withdraw the money or deal with it in any way.
[51] Further, Mr. Balaram-Sivaram was not willfully blind. The circumstances did not raise a red flag.
[52] With regard to the fail to comply with recognizance charges, Mr. Balaram-Sivaram's actions in going to the bank to deposit the cheques come under the exception that allows him to be out of his residence for the purpose of employment. Therefore, he was not in breach of condition 4 of the recognizance.
[53] With regard to the alleged breach of condition 11, although he had possession of the cheques he did not control them because he could not cash them. He did not have any power to control the funds until he received the authority to disburse them.
[54] The intent of condition 11 is for Mr. Balaram-Sivaram not to use financial documents. He could not use the cheques because he could not cash them or control the funds.
[4] The Position of the Crown
[55] The Crown argues that Mr. Balaram-Sivaram is not credible. He was involved in a fraudulent scheme to make money. The evidence proves that the cheques were stolen and that Mr. Balaram-Sivaram deposited them. There was no deprivation of the owners of the cheques so Mr. Balaram-Sivaram is guilty of attempted fraud.
[56] The Crown argues that although exhibit 12 does not prove that Mr. Balaram-Sivaram told the bank that he was a lawyer, it shows that the bank employee that helped him open the account thought that he was a lawyer. This damages his credibility because he would not admit that the bank employee may have thought that he was a lawyer.
[57] Another point that damages his credibility is that Mr. Balaram-Sivaram told the police in his statement that the only thing that prevented him from withdrawing money from the account was "honesty. It's an honour system" (page 23 of his statement to Detectives Olsen and Dennis, October 27, 2016). In his testimony he said that he did not know that he could withdraw money from the account and then said that it would require a document that authorized a withdrawal.
[58] The Crown pointed to inconsistencies in Mr. Balaram-Sivaram's testimony such as saying that Mr. Thasauarathan showed him on his cell phone a profile of Nortrax Quebec Inc. and that he was a director of the corporation, but he did not give the police this information.
[59] He also told the police that Mr. Lam would not open a trust account because he was a stubborn old person that did not want to answer for the funds that would be going through the account. In his testimony he said that it was because Mr. Lam's business was not incorporated.
[60] Another inconsistency was regarding who witnessed the retainer agreement between him and Mr. Thasauarathan. In his evidence he said that it was a person from Settlement House. In his statement to the police he said that it was a woman that was with Mr. Thasauarathan. The Crown does not accept Mr. Balaram-Sivaram explanation that he did not understand the detective's question.
[61] The Crown further argues that the retainer agreement is dubious and not specific. For example, Liftsafe Fall Protection Inc., the company with regard to the second cheque (exhibit 4) was not mentioned in the retainer agreement. Only Nortrax Quebec Inc. is mentioned.
[62] The Crown submits that no one is as naive as Mr. Balaram-Sivaram is making himself out to be. He is an intelligent person who used to be a paralegal and has an education in accounting. The only reasonable conclusion is that Mr. Balaram-Sivaram was a knowing participant in a fraudulent scheme. Mr. Balaram-Sivaram had so much confidence in his plan that he deposited the cheques in spite of the fact that the bank would hold them for a few days and check their authenticity.
[63] Further, even if he did not know directly that the cheques were stolen, he was willfully blind to the fact.
[64] With regard to the breach of recognizance charges, the Crown submits that Mr. Balaram-Sivaram cannot claim the protection of the "work" exception of the recognizance if he was attempting to defraud the bank. In addition, the exception specifies "to" and "from" work, and "while at work", which implies that he must be at a place of work. Had the court meant the exception to apply to employment related activities it would have said so explicitly.
[5] Disposition
[65] The Crown must prove the charges beyond a reasonable doubt. Regarding the breach of recognizance charges, s. 145(3) of the Criminal Code states that,
Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[66] I have considered the Supreme Court's directions in D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:
First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[67] After considering all of the evidence, the submissions of counsel and the law, I find that I have a reasonable doubt that Mr. Balaram-Sivaram is guilty of attempted fraud (counts 1, 2), or of possession of property knowing that it was obtained by an offence punishable by indictment (counts 3, 4).
[68] Upon considering all of the circumstances I find that although Mr. Balaram-Sivaram's business plan to manage trust funds for lawyers and real estate agents was pie in the sky, I am left in reasonable doubt that he knew that the cheques were stolen, or that he planned with Mr. Thasauarathan to traffic in stolen cheques.
[69] I note that Mr. Balaram-Sivaram opened the trust account before he met Mr. Thasauarathan. That means that he did not even know Mr. Thasauarathan when he opened the trust account. This raises a doubt in my mind that he opened the account in order to deal with stolen cheques received from a person that he did not yet know.
[70] Additionally, there is no evidence that he concocted an illegal scheme and then opened the trust account to wait for prospective partners in crime to present themselves.
[71] Another thing that raises a reasonable doubt in my mind is that he deposited the cheques knowing that the bank was going to hold them in order to verify their authenticity. He deposited one cheque, then another, and then returned to the bank to complain about not being able to access online banking. I doubt that he would have acted in this manner had he known that the cheques were stolen. I do not agree with the Crown's argument that he acted in this manner because he was confident in his fraudulent plan.
[72] I agree that he was quite careless regarding the content of the forms that he signed to open the trust account. However, it is not unusual that a person in his situation would not read or pay particular attention to forms that the bank requires be filled out in this type of transaction. I accept Mr. Balaram-Sivaram's explanation that he just signed the forms without reading them.
[73] The Crown conceded that there is no evidence that Mr. Balaram-Sivaram told the bank that he was a lawyer. The most the Crown could say was that his credibility was damaged because he would not admit that the bank employee with whom he dealt may have thought that he was a lawyer. I do not find that this damages his credibility. It just makes him look stubborn.
[74] Mr. Balaram-Sivaram was inconsistent regarding his ability to withdraw money from the account, but I do not find that it damages his credibility with regard to whether he knew that the cheques were stolen or with regard to whether he was involved in a fraudulent scheme with Mr. Thasauarathan. It is a bit of a different issue.
[75] The inconsistencies regarding why Mr. Lam would not open a trust account and regarding who witnessed the retainer agreement between Mr. Balaram-Sivaram and Mr. Thasauarathan, are minor unrelated issues that do not harm Mr. Balaram-Sivaram's credibility on the main issues of attempted fraud and possession of stolen cheques. It is not every inconsistency or contradiction that will call a person's credibility into question on the main issues of a case.
[76] Finally, I do not think that the fact that the retainer agreement only had the name of one company, Nortrax Quebec Inc., signifies anything of an inculpatory nature.
[77] With regard to willful blindness, I agree with the defence that there was nothing in the circumstances that would have required further investigation by Mr. Balaram-Sivaram. I find that the circumstances do not give rise to the application of this principle.
[78] Concerning the breach of recognizance counts, I find that Mr. Balaram-Sivaram can claim the protection of the exception to the house arrest condition that allows him to be out of his residence for the purpose of work. He was in the business of managing trust funds for lawyers and real estate agents. Part of work in this endeavour, however Quixotic it was, would reasonably entail going to the bank to deposit cheques that he received.
[79] Similarly, he would have to access his accounts online so going to the bank to find out why he could not access their online services can also be reasonably seen as part of his work. He tried to resolve the matter over the telephone but they told him to go directly to the branch. There is no evidence that Mr. Balaram-Sivaram was doing anything other than work related things during these occasions.
[80] With regard to the breach of recognizance counts that deal with possession of financial instruments, I am persuaded beyond a reasonable doubt that he is guilty (counts 7, 8).
[81] I do not agree with the defence that since Mr. Balaram-Sivaram did not control the funds to which the cheques referred, he was not in possession of the cheques themselves. I find that control over the funds to which the rightful beneficiary of the cheques was entitled is not required in order to be in possession of the cheques themselves. I find that the cheques are financial instruments apart from the fact of who has the ultimate control over the funds that they represent. If he had been charged with possession of the funds, it may have been a different story.
[82] Therefore, I find him guilty of counts 7 and 8 and convictions are registered.
Released: September 11, 2017
Signed: "Justice J.W. Bovard"