Ontario Court of Justice

Date: 2017-12-13

Court File No.: 14-12340

Between:

HER MAJESTY THE QUEEN

— AND —

GURINDERPAL SINGH BABBAR

Before: Justice J.M. Copeland

Heard on: February 13-17, July 5-7, September 5-6, September 12, and September 14, 2017

Reasons for Judgment released on: December 13, 2017

Counsel:

• Mr. R. Morin — counsel for the Crown
• Mr. L. Lebovits — counsel for Mr. Babbar

COPELAND J.:

Introduction and Charges

[1] Gurinderpal Singh Babbar is charged with multiple counts of participating in the making of a statement or document that he knew to be false or misleading under the Employment Insurance Act or regulations. There were originally 31 counts. Prosecution counsel withdrew four counts at the start of the trial (counts #7, #8, #13, and #29), five more at the close of the prosecution case (counts #12, #14, #17, #18, #20), and two more during closing submissions (counts #11 and #22). This leaves 20 counts to be decided (counts #1, #2, #3, #4, #5, #6, #9, #10, #15, #16, #19, #21, #23, #24, #25, #26, #27, #28, #30 and #31).

[2] 18 of the remaining counts relate to Records of Employment ("ROEs") containing allegedly false or misleading statements. An ROE is a document that an employer must provide to a former employee at the time the individual's employment ends. The ROE contains information about the person's employment, including the name of the company they worked for, the reason for termination, insurable hours worked in the relevant time period, and insurable earnings in the relevant time period. The ROE is a document which an employer is required to prepare under the Employment Insurance Act and regulations, and which a former employee is required to file when he or she applies for Employment Insurance benefits ("EI benefits").

[3] 17 of the false ROE counts involve situations where the prosecution alleges that the individual named in the ROE never worked for the employer named in the ROE, and thus had no insurable earnings (these are counts # 1, #2, #3, #4, #5, #6, #9, #15, #16, #19, #21, #23, #24, #25, #26, #27, #28).

[4] One count, count #10, involves a situation where the individual did work for the employer named in the ROE, but was the spouse of employer. The prosecution takes the position in relation to that count that the issuing of an ROE stating that the individual had a certain number of "insurable hours", and a certain amount of "insurable earnings" for the particular business is a false statement. The prosecution argues that this is so because the provisions of the Employment Insurance Act that define "insurable employment" exclude work that done for an employer who is non-arm's length, and in particular work for a spouse, from being "insurable employment". Thus, the prosecution argues that work done by an employer's spouse is not "insurable employment".

[5] The remaining two counts (#30 and #31) relate to an allegation that Mr. Babbar helped two of the individuals who allegedly received false ROEs to prepare their online EI applications. The allegedly false statements for these two counts are statements in the online EI applications that each individual worked for a particular business that the prosecution alleges they never worked for.

Positions of the Parties and Issues in Dispute

[6] The prosecution theory is that the defendant knowingly provided ROEs to individuals so that they could obtain EI benefits, knowing that the individuals did not in fact work for the business named in the ROE (with the exception of count #10, which as explained above, involves a different situation). The prosecution alleges that in many cases the defendant was paid for providing the ROE.

[7] The prosecution case consists of the allegedly false ROEs, and related online EI application forms, as well as various witnesses who fall in the category either of business owner, or individual who was issued the ROE (who I also refer to as the "putative employees"). For some counts only the business owner was called as a witness. For some counts the business owner and one or more individuals who received the ROEs were called as witnesses. For one count (count #28) only the individual who received the ROE testified, and not the business owner.

[8] In general, the business owners testified that various named individuals who were issued ROEs never worked for them. They testified that the defendant did various accounting work for their business. And they testified that they did not prepare the ROEs at issue or know anything about them.

[9] In general, the individuals who testified that they had received ROEs from the defendant testified that they did not in fact work for the business named in the ROE, and that they had paid the defendant to prepare the ROE, so they could obtain EI benefits.

[10] The prosecution also brought an application to have the evidence on each count considered as similar fact evidence in relation to the other counts. I will explain my ruling on that issue in the course of my reasons.

[11] The defendant testified and was the only defence witness. The defendant testified that he worked, first as an employee, and later as a subcontractor, for a man named Jaspal Singh, who operated a firm called H and B Accounting. The defendant testified that he was not an accountant and did not do accounting work or tax returns. He testified that he only did data entry.

[12] The defendant testified that he prepared the ROEs on the instructions of Jaspal Singh and with information provided by Jaspal Singh. He testified that although he filled out the ROEs at issue, he did not sign them, and he then returned them to Jaspal Singh. He denied that he knew that the contents of the ROEs were false. He denied that he took money to prepare ROEs. He denied that he knew most of the business owners who testified, and that he had ever met most of the individuals who testified that he prepared ROEs for them in exchange for money.

[13] The gravamen of the offences before the court is an allegation that the defendant participated in making false statements in documents required under the EI Act. This requires that the prosecution prove four things: (1) that the defendant participated in making the documents; (2) that the documents contain information that is required under the EI Act or regulations; (3) that the documents contain false or misleading statements; and (4) that the defendant knew that the documents contained false or misleading statements.

[14] It is not in dispute that the defendant participated in making the ROEs. He testified that he prepared them, but did not sign them. This satisfies the first element of the offences for all of the counts except counts #30 and #31, which relate to alleged false statements in online EI applications. For counts #30 and #31, whether this element of the offence is satisfied turns on my assessment on the reasonable doubt standard of the evidence of Nadia Wadood, Amritpal Grewal, and the defendant.

[15] The defence conceded during the course of the trial that the ROEs and EI applications for benefits at issue contain information that is required under the Act. This satisfies the second element of the offences.

[16] This leaves two main factual issues in dispute for all of the counts, except count #10 (which raises a different legal issue). First, has the prosecution proven beyond a reasonable doubt that the individuals named in the ROEs did not work at the businesses listed in the ROEs? If the prosecution has not proven this for any individual count, then the prosecution would be unable to prove that the statements in the ROEs and the two EI applications are false or misleading (i.e., the assertion that the person worked at a particular business and had particular insurable earnings).

[17] Second, if the prosecution has proven that any of the named individuals did not in fact work at the businesses as asserted in the ROEs, was Mr. Babbar aware that the information in the ROEs was false? Mr. Babbar in his own evidence admitted that he prepared the body of each ROE, but denied that he signed them. Whether or not Mr. Babbar signed the ROEs, given his admission that he prepared the body of the ROEs, if the prosecution can prove beyond a reasonable doubt that for any count he had knowledge that the information in the ROE was false, then the count is proven.

[18] As I have noted above, the defendant testified in his own defence. As a result, I approach issues of credibility using the framework set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742, and in particular, that the reasonable doubt standard applies to issues of credibility. If I believe the defendant's evidence, I must acquit. If I do not believe the defendant's evidence, but his evidence leaves me with a reasonable doubt, I must acquit. Finally, even if I do not believe the defendant's evidence, and it does not leave me with a reasonable doubt, I can only find the defendant guilty if I am satisfied that the prosecution's case proves the charges (or particular counts) beyond a reasonable doubt. I further instruct myself that I must consider the evidence as a whole. In particular, as credibility is a central issue in this case, I must consider the credibility of each witness' evidence in the context of the evidence as a whole. In considering the credibility of the evidence of any witness, I instruct myself that I may accept some, none, or all of the evidence of any witness.

[19] My reasons for judgment are structured as follows. First, as there was a large body of evidence, I will summarize the evidence of the prosecution case and the defendant. In the case of the prosecution witnesses, I have organized the witnesses by grouping them with the business they are connected to. Second, I consider some issues particular to the documentary evidence, in particular the ROEs. These relate to handwriting comparison and arguments about comparison of ink colour. Third, I consider the Crown's application that the evidence on each count be admissible on the other counts as similar fact evidence. Fourth, I explain my findings of credibility and my ultimate conclusions on whether the Crown has proven the charges beyond a reasonable doubt.

The Evidence

Evidence of Crown Witnesses and Documentary Evidence

Josie Martin

[20] Josie Martin is a Service Canada investigator who was involved in the investigation of the charges against Mr. Babbar, including the collection of documentary evidence, and the interviewing of witnesses. Ms Martin's evidence spans all of the counts. The documentary exhibits, in particular the ROEs and the online EI application forms, and some business records were entered into evidence through Ms Martin. No issue was taken by the defence regarding the authenticity of these records obtained from Service Canada's records, and in the case of the corporate documents, from business record searches.

[21] The defence did not challenge the credibility of Ms Martin's evidence. However, the defence did raise through her cross-examination some issues with the investigation that are relevant to the assessment of the reliability and credibility of some of the other prosecution witness.

[22] I agree that Ms Martin was a credible witness. At this stage, I will flag some issues arising out of her evidence that may have an impact on the assessment of the evidence of other prosecution witness. I will deal with these issues in more detail as I deal with the civilian witnesses to whom they apply, and in my consideration of the count to count similar fact evidence application.

[23] Ms Martin testified that in a number of cases witnesses were interviewed together by her or by another investigator, Gary Whalen (Mr. Whalen also testified and his evidence was to the same effect on this issue. I will not summarize it). For example, Ms Martin interviewed the owners of Pearson Dry Cleaning, Asif (Muhammad) and Khalid Mahmood together. Although Ms Martins was not specifically questioned about all of the groups of witnesses who were interviewed together, there were others, which became clear during the testimony of some of the civilian witness. For example, Ujjal Dhawan (Extreme Computing) testified that he was interviewed together with Varinder Sharma (Evans Biotech), and his father, Ranjit Dhawan, who was a friend of Varinder Sharma.

[24] I start by saying that interviewing witnesses together is a process that should be avoided. Credibility is a central issue in this case, and the fact that witnesses were interviewed together creates the need to assess whether a particular witness' or witnesses' evidence was affected by hearing the story of another witness during the interview process. This is relevant both to the ultimate assessment of the credibility and reliability of witnesses' evidence, and to the issue of the possibility of collusion as it relates to the similar fact application. I will address these issues in due course. But I think it is important to say that the problem of possible contamination of a witness' independent evidence by the process of interviewing witnesses together is easily avoided. Service Canada would do best avoid its investigators interviewing witnesses together in future investigations.

[25] Ms Martin gave evidence of the general process by which blank ROEs can be obtained by an employer or their representative from Service Canada, and the use Service Canada makes of the completed ROE. Service Canada will provide a blank ROE to an employer or a representative of the employer. Each blank ROE has a unique serial number. The unique serial number is tied to a particular employer or business at the time the blank ROE is given out by Service Canada. The employer or their representative then fills out the ROE. An employer is required to provide an employee with an ROE when the person stops working for the business, within 7 days after the person stops working. The ROE includes information such as the reason that the individual stopped working, the name and address of the employer and employee, the SIN number of the employee, the first and last date worked by the employee, the total insurable hours worked and total insurable earnings within a certain time frame, information about any severance or vacation pay, and a section for contact information in the event Service Canada has inquiries.

[26] The ROE is then submitted to Service Canada when the employee applies for EI benefits. The system for processing EI benefits applications is a trust system. Unless there is something abnormal that leads to an investigation, then an individual's online application for EI benefits will be processed.

[27] In cross-examination Ms Martin testified that an employer or a person authorized by an employer can request blank ROEs from Service Canada. She testified that sometimes a bookkeeper or accountant will be given authorization by a company to request blanks ROEs on the company's behalf. She testified that Service Canada would keep a record of who was authorized to request blank ROEs for a particular employer or business.

[28] I note that Ms Martin did not give any evidence of who in particular obtained the blank ROEs from Service Canada that were used to prepare the ROEs at issue in this case. She agreed that she had not obtained any documentary evidence (i.e. from Service Canada records) that the defendant requested the blank ROEs at issue from Service Canada. Nor did she provide any evidence of who the particular companies in whose name the ROEs at issue were issued had authorized to obtain blank ROEs on their behalf. I note that each ROE has a unique serial number that is pre-printed on the form when it is blank at the time it is provided to the employer or the employer's representative. Ms Martin testified that she did not investigate who was authorized (according to Service Canada records) by the companies at issue to request ROEs on their behalf because, in her view, who obtained the blank ROEs was irrelevant. All that was relevant from her perspective was who completed the ROEs and whether the purported employees really worked at the companies.

[29] I note as well that Ms Martin agreed in cross-examination that Service Canada did not at any stage seek to obtain search warrants to obtain business records in relation to any of the companies in whose name the ROEs at issue were issued.

Pearson Dry Cleaning & Laundry Services Inc. Counts

[30] Counts #6, #15, #19, #21, #26, and #27 relate to ROEs issued in the name of Pearson Dry Cleaning. Count #31 relates to the EI application supported by the ROE in count #15. The prosecution relies on the documents (ROEs and EI applications), and the evidence of Muhammad Mahmood and Khalid Mahmood, the owners of Pearson Dry Cleaning & Laundry Services Inc., Amritpal Grewal, the individual named in the ROE involved in count #15 and the EI application in count #31, and Mandeep Kaur Baidwan (previously Mandeep Kaur Chohan), the individual named in the ROE involved in count #19, to support these counts. I note that for counts #6, #21, #26, and #27 the individuals named in the ROEs were not called as witnesses by the prosecution.

[31] Muhammad Mahmood testified that he was the owner of Pearson Dry Cleaning from 2010 to 2015, when he sold the company. His father, Khalid Mahmood, ran the company day to day. Muhammad Mahmood asserted that as the owner of the company, he was familiar with the employees who worked at the company. He testified that the individuals named in counts #6, #15, #19, #21, #26, and #27 did not work for Pearson Dry Cleaning. He testified that he did not know any of them. He testified that he did not prepare the ROEs at issue in those counts. He testified that the name at the bottom of some of the ROEs, Mahmood Asif, was his name, but that the signature was not his signature. He testified that he had met the defendant two or three times when he visited the Pearson Dry Cleaning store. His father introduced him to the defendant. He testified that the defendant did accounting work for Pearson Dry Cleaning, including GST, PST, and records for employees.

[32] Muhammad Mahmood testified that he was asked by Service Canada to provide documents for the investigation. He testified that he provided whatever was available. But he testified that at some point he was summonsed and charged. He retained a lawyer. He testified that the charge was ultimately "discharged", but he did not know the details because his lawyer dealt with it. He provided an interview to Service Canada, but could not recall if he did so before or after he was charged.

[33] In cross-examination, Muhammad Mahmood denied that he used a different accountant from the defendant when Pearson Dry Cleaning was first opened. He maintained that the defendant was always the accountant used by Pearson Dry Cleaning. But he said he did not know a lot about the details because his father (Khalid Mahmood) was running Pearson Dry Cleaning. Muhammad testified that he would sign paycheques sometimes, or legal documents related to Pearson Dry Cleaning, but not very often. He would visit the Pearson store when he was needed, but otherwise he would not do so. When asked if he paid people in cash from Pearson, he said that he did not know. He said he did not know the details about which employees had to be paid and how much they had to be paid. He said his father took care of amounts of cheques (i.e., Muhammad would just sign), and that he (Muhammad) only visited the Pearson store once or twice a month.

[34] In cross-examination, Muhammad Mahmood agreed that several family members worked at Pearson Dry Cleaning at times. When asked if they were paid in cash, he said he did not know, because his father took care of paying employees.

[35] In cross-examinations, Muhammad Mahmood testified that he did not know exactly how many employees worked at Pearson, and said roughly 9 or 10. When asked if employees changed frequently, he said that he did not know who joined and left, because his father dealt with this.

[36] In cross-examination, Muhammad Mahmood denied that he ever ordered blank ROEs from Service Canada. He said he did not do so, because the business was being run by his father. He testified that his father was authorized to obtain blank ROEs from Service Canada.

[37] Khalid Mahmood testified that he was the manager of Pearson Dry Cleaning. He testified that the license for the business was in his son's name, but that he (Khalid) owned it, ran the business, and the investment for the business was his. He said his son had no part in the administration and running of the business.

[38] Khalid Mahmood testified that he hired all of the employees of Pearson Dry Cleaning, and knew them all. He testified that the individuals named in the ROEs in counts #6, #15, #19, #21, #26, and #27 did not work at Pearson Dry Cleaning. He testified that he did not know any of them. He testified that he did not prepare the ROEs at issue. He said the name at the bottom of the ROEs was his son's, but that his son did not prepare them. He testified that the defendant was the accountant for Pearson Dry Cleaning. The defendant did all of the accounting for the business, except for the initial registration of the business. The defendant would do accounting for Pearson Dry Cleaning in relation to the Canada Revenue Agency, employment records, payroll and taxes. Khalid Mahmood testified that if he laid off an employee from Pearson Dry Cleaning, the defendant would prepare the ROE.

[39] Khalid Mahmood testified that at some point he was asked to provide records to Service Canada for the investigation. He said he gave them the records he had available to him, but the rest of the paperwork was with the defendant. He provided an interview to Service Canada.

[40] In cross-examination, Khalid Mahmood testified that Pearson Dry Cleaning had different numbers of employees at different times. They started with one employee, and at times had as many as 12 employees. He agreed that there was often turnover in who the particular employees were. In cross-examination Khalid Mahmood testified that the defendant was the only accountant he used for Pearson Dry Cleaning's accounting work. He denied that he ever used H and B Accounting.

[41] In cross-examination, Khalid Mahmood testified that he met with Service Canada investigators two or three times.

[42] In cross-examination, Khalid Mahmood testified that he paid employees with cheques, but would sometimes pay casual labour with cash. He also testified that a family member, Shahnaz Kausar worked for the company. He testified that she was paid by cheque at the beginning, but then was paid in cash. However, he agreed that he had told Service Canada investigators in one of his interviews that no cheques were given to Ms Kausar. He testified that Ms Kausar was given a ROE when she was laid off, with his knowledge (Ms Kausar is named in count #7, one of the withdrawn counts). He agreed that he did not initially tell the Service Canada investigators that Ms Kausar was a family member.

[43] In cross-examination, Khalid Mahmood testified that Mumtaz Qurban was initially paid by cheque, but then paid in cash (Mumtaz Qurban is named in count #8, one of the withdrawn counts). However, he agreed that he told Service Canada investigators that no cheques were issued to Ms Qurban. Ms Qurban was also given a ROE when she was laid off, with his knowledge. Mumtaz Qurban was also a family member of Mr. Mahmood.

[44] In cross-examination, Khalid Mahmood agreed that Nurgas Qurban was paid in cash (Nurgas Qurban is named in count #13, one of the withdrawn counts). He testified that Ms Qurban was also given a ROE when she was laid off, with his knowledge. Nurgas Qurban was a family member of Mr. Mahmood's.

[45] Khalid Mahmood denied that some of Pearson Dry Cleaning's customers paid him in cash. He said it was a wholesale dry cleaning business, and customers would pay monthly or bi-monthly.

[46] Khalid Mahmood denied in cross-examination that the employees listed in the ROEs at issue worked for Pearson and were paid in cash to avoid taxes.

[47] In cross-examination, Khalid Mahmood initially testified that the defendant would obtain blank ROEs from Service Canada. When defence counsel suggested to him that the defendant would not have been authorized to do so, Mr. Mahmood said that the defendant would prepare a written request for blank ROEs, and his son would sign it, and the defendant would keep the forms when they arrived. He agreed that the blank ROEs would be sent to the place of business, but he said he would give them to the defendant. Mr. Mahmood denied the suggestion that any ROEs prepared by the defendant in relation to Pearson Dry Cleaning were prepared at his direction. He said he was aware of some ROEs (not the ones at issue in the remaining counts), but not aware of others.

[48] Amritpal Grewal is the individual named in counts #15 and #31, related to the ROE and EI applications found in Exhibit #1, tabs 8 and 33. Ms Grewal testified that she had no relationship to Pearson Dry Cleaning and that she never worked there. She testified that she did not know Asif Mehmood, who is listed as the issuer. She testified that the ROE was given to her by the defendant, who was her accountant. She testified that the defendant filed her taxes. She testified that she never told the defendant that she worked for Pearson Dry Cleaning. She testified that she paid the defendant $3,000 for the ROE. She testified that he told her that the money would be given to the government, and she would get maternity benefits. She testified that the defendant filled out the EI application at Exhibit #1, tab 33 for her.

[49] She testified that when Service Canada called her as part of their investigation, she called the defendant to tell him. He told her that the government was calling to check on maternity benefits, and there was nothing to worry about.

[50] In cross-examination, Ms Grewal denied that she had worked for Pearson Dry Cleaning, but was paid cash. However, she admitted that in the Service Canada interview she initially provided the name of the owner-manager of Pearson to the Service Canada investigators and gave the name Khalid. Although she initially said in cross-examination that she gave the name on the ROE, the ROE does not have the name Khalid anywhere on it. She also testified that in her first interview with Service Canada, she described Pearson Dry Cleaning (i.e., the physical location). She testified that she was able to do this because when Service Canada contacted her and she told the defendant, and the defendant told her certain things she had to remember and to tell Service Canada. In re-examination, Ms Grewal testified that in her first interview with Service Canada, she told the investigator that she had worked at Pearson Dry Cleaning, but that in her second interview she told the investigator that she had not worked there, and she had lied in the first interview.

[51] In cross-examination, Ms Grewal testified that she paid the $3,000 to the defendant in cash, and did not have any records to show she had taken the money out of the bank.

[52] Mandeep Kaur Baidwan (previously Mandeep Kaur Chohan) testified that she did not work for Pearson Dry Cleaning and Laundry Services and did not know Asif Mahmood. She testified that the defendant was her and her husband's accountant. She testified that she was not familiar with the ROE at issue in count #19 (Exhibit #1, tab 16), but believed the defendant prepared it because "he does all of our paperwork". She testified that the defendant did paperwork for her in relation to her obtaining maternity benefits. She testified that she paid the defendant $1,500 to do the paperwork for her to get maternity benefits. She testified that she had not seen the online EI application in her name (Exhibit #1, tab 41). She believed that the defendant completed it because he completed "all our papers". Ms Baidwan testified that she cooperated with the Service Canada investigation because she "felt that it's wrong to get the money this way".

[53] In cross-examination, Ms Baidwan denied the suggestion that she worked at Pearson Dry Cleaning from May 2011 to September 9, 2011. She denied the suggestion that she worked there and was paid cash and did not pay taxes on the income. In cross-examination, she agreed that she did not see the defendant fill out the ROE at issue (Exhibit #1, tab 16). In cross-examination, Ms Baidwan agreed that the defendant did tax returns for her and her husband.

[54] However, towards the end of Ms Baidwan's cross-examination, and in re-examination, it became clear that Ms Baidwan did not deal directly with the defendant regarding the maternity benefits, but rather, that her husband dealt with the defendant, and then told her about it. Thus, I find that the portions of her evidence relating to the defendant's involvement in her obtaining maternity benefits and the ROE at issue is hearsay. Only her evidence that she did not work at Pearson Dry Cleaning (and Holland Truck Training Centre), and not knowing the principal there, is non-hearsay.

Extreme Computing Inc. Counts

[55] Counts #3, #4, #23, #24, and #25 relate to ROEs issued in the name of Extreme Computing Inc. The prosecution relies on the documents (ROEs and EI applications), and the evidence of Ujjal Dhawan, the owner of Extreme Computing. I note that for the Extreme Computing counts the prosecution did not call as witnesses any of the individuals who are named in the ROEs.

[56] Ujjal Dhawan testified that Extreme Computing Inc. is his company and he started it in 2010. But he testified that he never did any business through Extreme Computing because soon after he started it he got a job at Finetech Computers repairing computers. He testified that he intended Extreme Computing to be a business doing computer repair. But he only ever registered the business. He testified that he also had business cards printed, and he would hand them out to people he saw at malls or bus stops. He testified that Extreme Computing never had any employees, and never did any sales.

[57] Mr. Dhawan testified that the individuals named in counts #3, #4, #23, #24, and #25 did not work at Extreme Computing. He testified that he did not know the individuals named in the ROEs. He testified that he did not prepare the ROEs in relation to those counts, and had seen them for the first time during the Service Canada investigation (the ROEs relevant to the Extreme Computing Counts are found in Exhibit #1, at tabs 11, 22, 9, 14, and 4). He testified that his name was at the bottom of the ROEs, but it was not his handwriting or his signature.

[58] Mr. Dhawan testified that the defendant was both his personal accountant, and his accountant for Extreme Computing. He testified that he met the defendant through a common friend (Varinder Sharma – also a witness in the trial). Mr. Dhawan testified that the defendant registered Extreme Computing for him as a company. He said when he got the job at Finetech Computing, he asked the defendant to close Extreme Computing. He said the defendant told him not to close it, but to keep it active, and the defendant would keep filing his corporate returns. Mr. Dhawan testified that he gave the defendant the cheque book for the Extreme Computing bank account at TD Canada Trust. He also testified that because he trusted the defendant he gave him blank signed cheques on the Extreme Computing banks account.

[59] Mr. Dhawan testified that he saw the defendant once or twice a month, at the defendant's home office. The purpose of the visits was sometimes for Mr. Dhawan to assist the defendant with his computer equipment, and sometimes just to chat.

[60] Mr. Dhawan testified that at some point he was asked by Service Canada to provide documents in relation to the ROEs for Extreme Computing (i.e., pay stubs or other details of the employment). He testified that since Extreme Computing was not doing any business, he spoke to the defendant about the request for Service Canada. The defendant told him he was already aware of this, and it must be a mistake in the filing, and that Service Canada would correct it, and to give him the documents from Service Canada. After that he was charged with an offence by Service Canada. He also testified that the defendant told him that if people visited him from Service Canada, he should tell them that the defendant was taking care of the matter, and that a lawyer named Bobby Singh would take care of everything.

[61] When Service Canada investigators came to his house, Mr. Dhawan told them he had nothing to say, and to speak to his lawyer, Bobby Singh. After a couple of months Mr. Dhawan received a summons to come to court. He learned he was being charged. He then decided to cooperate with the Service Canada investigation. He gave a recorded interview to Service Canada. After that the charges against him were withdrawn.

[62] In cross-examination, Mr. Dhawan could give no explanation as to why he gave the defendant pre-signed cheques for the Extreme Computing bank account when Extreme Computing was not doing any business. Nor could he explain why it was necessary to give pre-signed cheques when he attended at the defendant's office once or twice a month. Mr. Dhawan admitted that there were deposits made into the Extreme Computing bank accounts during this time, but he claimed he was unaware of them at the time, and only became aware of them during the Service Canada investigation. He also said that he had been unaware of cheques being issued on the Extreme Computing bank account.

[63] Mr. Dhawan denied the suggestion that, in fact, Extreme Computing was doing business, but was doing so in cash to hide the employment in the same field from his employers at Finetech Computing. Mr. Dhawan denied the suggestion that Extreme Computing was an active business, and had several people who worked for it. He denied that the people named in the Extreme Computing ROEs at issue worked for the company.

[64] Mr. Dhawan agreed in cross-examination that at some point, to assist a friend of his, he applied for a work permit for Amal Kumar. It was suggested to Mr. Dhawan in cross-examination that at that time he declared to Human Resources Development Canada that Extreme Computing had three or four employees. Mr. Dhawan did not deny that that representation had been made, but claimed that he had asked the defendant to assist him with the application, and the defendant handled the application.

[65] Mr. Dhawan agreed in cross-examination that when he was interviewed by Service Canada investigators it was done in the presence of his father (Ranjit Dhawan – who was the partner of Varinder Sharma in Evans Biotech, according to Varinder Sharma), and Varinder Sharma (also a witness in the trial in relation to Evans Biotech). He agreed that his family was close with the Sharma family, and that his father worked with Varinder Sharma. He denied that he discussed at length with his father or Mr. Sharma the potential of charges from the Service Canada investigation. He said he just had brief discussions with them.

[66] Mr. Dhawan agreed in cross-examination that he knew Prabhjot Bhullar, the owner of Finetech Computing, and that he worked for her at Finetech for about a year in 2010-2011. Mr. Dhawan testified that he was paid cash for his first few months at Finetech Computers. He said he was the only employee there at the time.

[67] In cross-examination, Mr. Dhawan denied the suggestion that the business card for the defendant that he produced during his testimony did not, in fact, come from the defendant. (Exhibit #5).

Fine Tech Computers Inc. Counts

[68] Counts #9, #10 and #30 relate to ROEs issued in the name of Fine Tech Computers Inc., and in the case of count #30 a related EI application. The prosecution relies on the documents (ROEs and EI applications), and the evidence of Prabhjot Bhullar and Sukhjeet Bhullar, the owner of Fine Tech Computers Inc. and her husband, respectively, and Nadia Wadood, the individual named in the ROE involved in counts #9 and #30 to support these counts. I note that Sukhjeet Bhullar, in addition to being the husband of the owner of Fine Tech Computers Inc. is also the individual named in the ROE involved in count #10.

[69] Prabhjot Bhullar was the owner of Fine Tech Computers Inc. She testified that Fine Tech did computer sales and repair. She testified that she did sales at Fine Tech, and that her husband, Sukhjeet Bhullar worked as the manager.

[70] Ms Bhullar testified that she knew the employees of Fine Tech. Ms Bhullar testified that Nadia Wadood was never an employee of Fine Tech, and that she did not know her. She testified that the ROE issued in the name of Nadia Wadood (Exhibit #1, tab 25) was prepared in the defendant's handwriting, which she recognized from other accounting documents he prepared for her. She testified that the signature at the bottom was her signature. She testified that the defendant was the accountant for Fine Tech. He did all the business accounting, and was her only accountant. She testified that when she met with the defendant they met at her store. She testified that the defendant had her sign the ROE when it was blank, and it was supposed to be for another employee (Ujjal Dhawan). She testified that she never saw the ROE again after she signed it (until shown it during the service Canada investigation), but believed that the defendant had filled in the rest, as she recognized his handwriting.

[71] Ms Bhullar testified that she did not have any discussions with the defendant about the ROE issued in the name of her husband, Sukhjeet Bhullar (Exhibit #1, tab 3). She testified that her husband had worked at Fine Tech. She testified that the handwriting in this ROE was the defendant's handwriting, and that the signature was also his. She testified that the defendant knew that she and Sukhjeet Bhullar were married because he did their personal taxes as well as the business' taxes, and the personal tax returns indicate marital status and that they were husband and wife.

[72] Ms Bhullar testified that during the Service Canada investigation, she was asked to provide documents for the investigation about the two ROEs. She testified that she did not have any documents in relation to Nadia Wadood, and she had not known anything about that ROE. She testified that she spoke to the defendant about the request for documents, and he told her not to worry about it, and that he would look after it. He said he had hired a lawyer. She asked the defendant how he could have given the paper with her signature to someone else (the Wadood ROE). She testified that the defendant said that she was his neighbour.

[73] Ms Bhullar testified that she trusted the defendant and the lawyer he hired. But at the last minute, they said she should plead guilty. She pled guilty and paid a fine. Sometime after her guilty plea she agreed to be interviewed by Service Canada for the investigation. She testified that she had pled guilty for "a thing I hadn't done".

[74] In cross-examination defence counsel challenged Ms Bhullar's assertion that she was just following the advice of the lawyer and the defendant when she pleaded guilty to failing to provide required documents in the Service Canada investigation. She agreed that she had a law degree. She agreed that the judge who presided over the guilty plea did a plea inquiry.

[75] In cross-examination, Ms Bhullar denied that she had ever heard of or used H and B Accounting. Ms Bhullar agreed that she had never authorized Service Canada to give blank ROEs to the defendant. In relation to Ms Bhullar identifying the signature on her husband's ROE as the defendant's signature, Ms Bhullar agreed that she never gave Service Canada's investigators examples of the defendant's signature on other documents that he had prepared so they could be compared to the signature on Exhibit #1, tab 3. She said she was never asked to do so. Ms Bhullar testified that the defendant may have met with her husband without her being present, because she was not at the store at all times. She denied that the signature in Exhibit #1, tab 3 was her husband's signature, because she said she could recognize her husband's signature.

[76] Ms Bhullar agreed in cross-examination that some sales for Fine Tech were done in cash, as well as other methods of payment such as debit. But she denied that she kept cash payment off the books. And she denied that she ever paid cash to employees.

[77] Sukhjeet Bhullar is the spouse of Prabhjot Bhullar. He was trained as a mechanical engineer in India, and worked in computer repair in Canada. He testified that he worked at his and his wife's company, Finetech Computers, which was registered in his wife's name. He agreed that the ROE at issue in count #10 (Exhibit #1, tab 3) was an ROE issued in his name for work done at Finetech Computers. He testified that the name of the issuer listed at the bottom of the ROE, Gurinderpal Singh, was the defendant, and that he was the accountant for Finetech Computers. He testified that the defendant did all of their accounting work, including payroll for employees.

[78] Mr. Bhullar testified that the signature next to the name of Gurinderpal Singh on the ROE was the defendant's signature. He testified that he knew this because he used to see the defendant's signature on papers related to the Finetech Computers business that required the defendant's signature. He testified that the defendant gave him the ROE (Exhibit #1, tab 3).

[79] Mr. Bhullar testified that that the defendant told him that he could get EI benefits for his work at Finetech Computers even though the company was registered in the name of his wife. Mr. Bhullar identified his online EI benefits application (Exhibit #1, tab 28). He agreed that on that application he had answered "no" to the question of whether he was related to any of his employers by blood or marriage. He said he understood that if he had said yes, he would not get EI benefits. Before he answered "no" to that question, he called the defendant and the defendant told him to say no. He testified that the defendant was aware that he was married to Prabhjot Bhullar.

[80] Mr. Bhullar testified that he cooperated with the Service Canada investigation because he wanted to tell the truth. He testified that initially when he was contacted by Service Canada, he spoke to the defendant, and the defendant told him not to cooperate, and that he had hired a lawyer, Bobby Singh, to take care of it.

[81] In cross-examination, Mr. Bhullar testified that his work at Finetech Computers was as a manager. Mr. Bhullar agreed that when he filled out his EI application, he knowingly submitted the application with false information when he answered that he was not related to any of his employers.

[82] Mr. Bhullar testified that his wife, Prabhjot Bhullar, ordered the blank ROE for his EI application.

[83] Mr. Bhullar agreed in cross-examination that customers of Finetech Computers sometimes paid in cash. But he denied that employees were ever paid in cash. Mr. Bhullar agreed that Ujjal Dhawan worked for Finetech Computers for a time. He denied that Ujjal Dhawan was ever paid in cash, and said he was paid by cheque. He denied that Nadia Wadood ever worked for Finetech Computers. He denied that he knew Nadia Wadood.

[84] Mr. Bhullar agreed that he faced charges for his EI application. He denied that his decision to cooperate with the Service Canada investigation was related to the charges. He testified that he had paid his penalty for the EI benefits prior to speaking to the Service Canada investigators.

[85] As noted above, Ujjal Dhawan, who testified mainly in relation to the Extreme Computing counts, agreed in cross-examination that he knew Prabhjot Bhullar, the owner of Finetech Computing, and that he worked for her at Finetech for about a year in 2010-2011. Mr. Dhawan testified that he was paid cash for his first few months at Finetech Computers. He said he was the only employee there at the time.

[86] Nadia Wadood testified that she had never worked for Fine Tech Computers Inc. She testified that she did not know Prabhjot Bhullar. She testified that she was referred to the defendant by someone she knew in order to get maternity benefits. She testified that on one occasion she went to see the defendant at his house, with her husband. The defendant had an office in the basement of his house. She testified that the defendant prepared the ROE (found in Exhibit #1, tab 25) and gave it to her in exchange for her paying him $3,700. She testified that she was not familiar with the online EI application prepared in her name (Exhibit #1, tab 50), and did not know who filled it out. But she testified that the defendant said that in return for the $3,700 he would obtain maternity leave benefits for her.

[87] In cross-examination, Ms Wadood denied the suggestion that she had worked for Fine Tech and been paid in cash, and did not declare it to avoid paying taxes. She also denied the suggestion that she did not pay the defendant for the ROE.

Fountain Plumbing Inc. Count

[88] Count #5 relates to an ROE issued in the name of Fountain Plumbing. The prosecution relies on the documents (ROE and EI application), and the evidence of Satwinder Kaur, the owner of Fountain Plumbing Inc., to support this count.

[89] Satwinder Kaur testified that she and her husband registered Fountain Plumbing Inc. Her husband had done a course in plumbing, and they opened the business together to be self-employed. The business was open for about five years, but never conducted any business. Her husband was supposed to work for the company, but they never had any work. When asked about the ROE at issue (Exhibit #1, tab 13), Ms Kaur testified that it was shown to her by the investigators during the Service Canada investigation, but that she had never seen it before then. Iqbal Kachhyara, the person to whom the ROE at issue was issued, is her husband. Ms Kaur testified that she was not familiar with the address on the ROE (which there was no dispute at trial is the defendant's home address). She testified that the name at the bottom of the ROE as the issuer was hers, but that the signature was not hers. Ms Kaur did not know who prepared the ROE at issue.

[90] Ms Kaur testified that the defendant was the accountant for Fountain Plumbing. They hired the defendant to do the paperwork and accounting related to the business. Ms Kaur testified that because the business had no work, she and her husband spoke to the defendant for advice. He told them that her husband could apply for EI benefits if they gave the defendant some cheques in payment as tax. She testified that she and her husband met with the defendant at an office. She said she was not present when the paperwork was prepared. She testified that she knew the defendant from "back home", and had known him since childhood.

[91] Ms Kaur testified that she and her husband gave an interview to Service Canada for the investigation after she was required to attend court in relation to his EI benefits.

[92] In cross-examination, Ms Kaur agreed that the defendant did not end up doing any accounting work for Fountain Plumbing (however, she maintained that he assisted with her husband's EI application). She agreed that her husband was trained as a plumber, but said that he did not end up working as a plumber, because he did not get any work. He later got a factory job. She denied that she requested a blank ROE from Service Canada. In cross-examination, she agreed that the ROE was prepared with a period of employment (i.e., dates), that she provided to the defendant. She also agreed that both she and her husband were charged in relation to her husband's EI benefits. She agreed that it crossed her mind that the government would go softer on her and her husband if they cooperated with the investigation. She understood that if they admitted wrongdoing, they had to repay the benefits, and they did so.

Holland Truck Training Centre Count

[93] Count #1 relates to an ROE issued in the name of Holland Truck Training. The prosecution relies on the documents (ROE and EI application – found at Exhibit #1, tab 15), and the evidence of Amarjit Chowhan, the owner of Holland Truck Training Centre, and Mandeep Kaur Baidwan (previously Mandeep Kaur Chohan), the individual named in the ROE at issue in count #1, to support this count.

[94] Amarjit Chowhan testified that Holland Truck Training Centre Inc. was his business. It provided training for people to be truck drivers. He did not have any employees, except that his wife helped him with the business. He testified that he was not familiar with the ROE issued in the name of Holland Truck to Mandeep Kaur Chohan (Exhibit #1, tab 15), and did not know Ms Chohan. He testified that Ms Chohan did not ever work at Holland Truck. He testified that the signature at the bottom listed his name, but was not his signature. He testified that he knew the defendant. The defendant had come to him for truck driver training some years previously. At some point the defendant said he was not going to drive a truck, but that he was a CA in India, and that he could do accounting work for Mr. Chowhan. He said the defendant prepared his tax returns for him. Mr. Chowhan testified he had no knowledge of who filled out the ROE at issue.

[95] Mr. Chowhan testified that when Service Canada first came to him about the investigation concerning this ROE, he spoke to the defendant. The defendant told him not to talk to Service Canada, and that the defendant and his lawyer would take care of everything. Later he spoke to a woman who had gone through "the same scam", who advised him to get his own lawyer. He did so, and then decided to speak to Service Canada.

[96] In cross-examination, Mr. Chowhan denied the suggestion that when the defendant did accounting work for him, the defendant would return the paperwork to Mr. Chowhan afterwards. Mr. Chowhan testified that he would give his paperwork to the defendant, and the defendant would keep it. He also denied the suggestion that Mandeep Chohan ever worked for him.

[97] Mandeep Kaur Baidwan (previously Mandeep Kaur Chohan) testified that she did not work for Holland Truck Training Centre and did not know Amarjit Singh. She testified that the defendant was her and her husband's accountant. She testified that she did not know who filled out the ROE at issue in count #1 (Exhibit #1, tab 15). She testified that the defendant did paperwork for her in relation to her obtaining maternity benefits. She testified that she paid the defendant $1,500 to do the paperwork for her to get maternity benefits. She testified that she had not seen the online EI application in her name (Exhibit #1, tab 40).

[98] In cross-examination, Ms Baidwan denied the suggestion that she was employed by Holland Truck Training Centre from September 2009 to January 15, 2010. She denied the suggestion that she worked there and was paid cash and did not pay taxes on the income. In cross-examination, she agreed that she did not see the defendant fill out the ROE at issue (Exhibit #1, tab 15). In cross-examination, Ms Baidwan agreed that the defendant did tax returns for her and her husband.

[99] However, towards the end of Ms Baidwan's cross-examination, and in re-examination, it became clear that Ms Baidwan did not deal directly with the defendant regarding the maternity benefits, but rather, that her husband dealt with the defendant, and then told her about it. Thus, I find that the portions of her evidence relating to the defendant's involvement in her obtaining maternity benefits and the ROE at issue is hearsay. Only her evidence that she did not work at Holland Truck Training Centre (and Pearson), and not knowing the principal there, is non-hearsay.

Evans Biotech Inc. Count

[100] Count #16 relates to an ROE issued in the name of Evans Biotech Inc. The prosecution relies on the documents (ROE and EI application), and the evidence of Varinder Sharma, the owner of Evans Biotech Inc., to support this count. The individual named in the ROE involved in count #16 was not called as a witness by the prosecution.

[101] Varinder Sharma testified that he owns and manages his own company called Evans Biotech Incorporated. His business cleans cars and orders janitorial supplies. He is the only employee. He testified that he does not know the person named in the ROE at issue in count #16 (Exhibit #1, tab 2), Aruna Ravi Bhatia. He testified that he had never had any employees at his company. He testified that the name at the bottom of the ROE at issue was his, but that the signature was not his. He did not know who prepared the ROE or who signed it.

[102] Mr. Sharma testified that the defendant was his accountant. He testified that the defendant was recommended to do accounting for him by a family friend. He testified that the defendant did all of his accounting work, his personal tax, even his business correspondence. The defendant was the only person who did accounting for his business. Mr. Sharma testified that he did not give the defendant any role in preparing ROEs for him.

[103] Mr. Sharma testified that when he was contacted by Service Canada, he spoke to the defendant. The defendant told him it was nothing, and he would look after it. The defendant told him not to cooperate with Service Canada. So he told Service Canada to speak to his lawyer. The lawyer was someone the defendant had told Mr. Sharma to use. Then he later received a summons from Service Canada, and realized he was in trouble. Then he went and made a police report, and stopped the defendant from being his accountant. Then he cooperated with the Service Canada investigation.

[104] Mr. Sharma testified that he was interviewed by Service Canada with two or three people together (this was corroborated Ujjal Dhawan's evidence noted at paragraph 65 above, that he was interviewed together with his father, Ranjit Dhawan, and Mr. Sharma).

[105] In cross-examination, Mr. Sharma agreed that he also worked with Ranjit Dhawan (the father of the witness Ujjal Dhawan). He denied that Mr. Dhawan was an employee, and said rather they were partners, and still were partners at the time of the trial. Mr. Sharma knew Ranjit Dhawan from India, where they had both worked for the same company. Mr. Sharma agreed that he was aware that Ranjit Dhawan had made a claim for EI benefits. Mr. Sharma said that both he and Ranjit Dhawan were responsible for running the business (Evans Biotech). He testified that whenever there was a shortage of work, he would order one blank ROE form from Service Canada for Ranjit Dhawan.

[106] Mr. Sharma denied in cross-examination that Aruna Bhatia ever worked for Evans Biotech.

[107] Mr. Sharma denied in cross-examination that some clients paid him for work in cash. He said they always paid by cheque. He said only very rarely was he paid in cash. Mr. Sharma said he did not recall ever advising Service Canada that the defendant was authorized to obtain blank ROEs on behalf of Evans Biotech, but he was not sure as it was a long time ago. He denied that Ranjit Dhawan could have authorized the defendant to get ROEs from Service Canada, because he and Mr. Dhawan made all decisions about the business jointly. He said they would only make minor decisions individually.

Shiva Indian Cuisine Count

[108] Count #28 relates to an ROE issued in the name of Shiva Indian Cuisine to Ramandeep Kaur Bains. The prosecution relies on the documents (ROE and EI application), and the evidence of Ramandeep Kaur Narwal (previously named Ramandeep Bains), the individual named in count #28, to support this count. The owner of Shiva Indian Cuisine was not called as a witness, although a corporate profile report showing the registration of the business was filed.

[109] Ms Narwal testified that she never worked at Shiva Indian Cuisine and was not familiar with the business. She testified that she had never seen the ROE at issue in her name (Exhibit #1, tab1). She did not know Neeraj Gupta. She testified that when she was pregnant, and uncle told her the defendant could help her get maternity benefits. She met with the defendant, and he told her there was a way to get maternity benefits for someone with low income. He told her he could get her maternity benefits if she gave him $3,000 in cash, which she did. He never told her how he was going to do it. He just told her she was eligible, and he took care of applying for it for her. He also told her she would get a four-digit pin number, and she should give it to him when she got it, which she did. She met with the defendant in his office in the basement of his home. Ms Narwal testified that she was not familiar with the online EI application in her name (Exhibit #1, tab 26).

[110] Ms Narwal testified that she cooperated with the Service Canada investigation when she came to realize that what she did was wrong. She wanted to pay back the money she received in benefits.

[111] In cross-examination, Ms Narwal denied that she worked for Shiva Indian Cuisine and was paid cash, and did not declare the income on her taxes. She agreed that when she received the EI maternity benefits, she accepted the money and did not immediately go to Service Canada and say she should not be receiving them. She maintained that she did not know she was not eligible for benefits at that time. She agreed that when Service Canada investigators contacted her, she was concerned she could be charged with an offence. But she denied the suggestion that she "would do anything to avoid a prosecution". She said she wanted to tell her said of the story, to tell the truth.

[112] In cross-examination, Ms Narwal maintained that she had paid the defendant $3,000 to get maternity benefits, but said she could not recall if she had attended to pay the money, or if her husband had attended (or both of them). She also could not remember if the $3,000 was paid all at once or in more than one payment. In re-examination, after refreshing her memory from her statement, Ms Narwal testified that she paid the $3,000 to the defendant herself, in two installments, $1,000 first, and later another $2,000.

Babbar Accounting Inc. Count

[113] Count #2 relates to an ROE issued in the name of Babbar Accounting Inc. The prosecution relies on the documents (ROE, EI applications, and a corporate profile report showing the company is owned by Mr. Babbar), and the evidence of Rupinder Kaur Chohan, the individual named in the ROE involved in count #2 (found at Exhibit #1, tab 17), to support this count.

[114] Rupinder Kaur Chohan testified that she did not work for Babbar Accounting Corporation and that she had no relationship with the company. She testified that she knew the defendant because she once had her taxes completed by him. She testified that when she got the defendant to do her taxes, she had found out about him from a flyer she saw at her Sikh temple that said he did tax returns. She testified that the defendant prepared and gave her the ROE at issue in count #2 (Exhibit #1, tab 17). She testified that she paid him $2,400 for the ROE. Ms Chohan testified that she was not familiar with the EI application in her name found at Exhibit #1, tab 42. However, she testified that it was completed by the defendant.

[115] She testified that she cooperated with the Service Canada investigation when she was contacted because she found out that what had occurred was wrong, and accepted her mistake. She returned the money (benefits) back to the government.

[116] In cross-examination, Ms Chohan denied the suggestion that she had, in fact, worked for the defendant from February 2010 to May 14, 2010. She agreed in cross-examination that Mandeep Chohan (now Mandeep Baidwan – a witness in relation to counts #1 and 19) was her sister-in-law. She denied that she knew Amarjit Chowhan or Amandeep Chohan. In cross-examination, Ms Chohan denied that she was introduced to the defendant by her sister-in-law Mandeep Chohan. She denied that the defendant was a friend of the family and that he had given her a job to help her. Ms Chohan testified that she did not recall how she had paid the defendant for doing her taxes, but it could have been cash. She denied that the defendant did other accounting services for her and her husband, and maintained that he only did their taxes, and only for one year. She maintained that the $2,400 she paid the defendant was for the ROE, and was not for taxes. She testified that the amount she paid the defendant to do taxes was less.

Defendant's Evidence

[117] The substance of Mr. Babbar's evidence was that he had no knowledge that the content of the ROEs was false, and that he was a dupe of Jaspal Singh. He testified that he prepared the ROEs based on instructions and information provided by Jaspal Singh. He testified that he did not sign the ROEs. He testified that Mr. Singh collected the ROEs and any instructions after Mr. Babbar had completed them. He testified that he did not know who signed the ROEs, but suggested that it might be Jaspal Singh, or his own partner Baljinder Bhullar. Mr. Babbar denied that he ever took money from anyone to prepare an ROE. He denied that he ever assisted anyone to prepare an EI application.

[118] Mr. Babbar testified that he is originally from India, and came to Canada in 2004. He testified that he graduated from university in India with a business degree in 1989. He testified that he is not an accountant. He testified that in India he worked doing bookkeeping, handwritten books and ledger accounts for a manufacturing company. When he came to Canada he worked in a factory until he had a back injury.

[119] In 2008, he began working for Jaspal Singh at H and B Accounting. The office was at Airport Road and Derry Road. He testified that he did data entry work there. He entered sales and purchases for small businesses using software called QuickBooks.

[120] Mr. Babbar testified that from 2008 to 2010 he was employed by Jaspal Singh. He testified that in 2010 Jaspal Singh opened a company in the name of the defendant, and the defendant did work for Mr. Singh as a subcontractor (Babbar Accounting Inc.). Mr. Singh gave Mr. Babbar a room to use in the offices of H and B Accounting. Once Mr. Babbar was operating his own business, he had a partner (Baljinder Singh Bhullar), and two or three employees. Mr. Babbar testified that he did not have any clients of his own, but rather that he did all his work for H and B Accounting, as a subcontractor to Jaspal Singh.

[121] Mr. Babbar testified that he never interacted with any of the clients at H and B Accounting. He testified that he never did any tax returns. He testified that he never gave accounting advice. He testified that he never did payroll work or records for Mr. Singh or for anyone else. Mr. Babbar testified that he was never paid directly by clients, but rather was only paid by Jaspal Singh.

[122] Mr. Babbar testified that he did work on a computer provided by Jaspal Singh in the time period up to 2012.

[123] Mr. Babbar testified that he was not aware of how to obtain a blank ROE from Service Canada, and had never ordered one. He testified that when one was required for his own business (Babbar Accounting Inc.), his partner Baljinder Bhullar would obtain it from Service Canada.

[124] Mr. Babbar testified that he had prepared the body of the ROEs at issue in the counts before the court. He testified that Jaspal Singh gave him the blank forms when he was working at H and B Accounting. Mr. Singh provided him with the information to complete the ROEs. He testified that Mr. Singh asked him to fill out the ROEs because he had good handwriting.

[125] Mr. Babbar testified that he was not familiar with the business Pearson Dry Cleaning, but he said he did data entry for Pearson Dry Cleaning when he worked at H and B Accounting. He denied that he did accounting for Pearson Dry Cleaning. He denied that he was ever paid by Pearson Dry Cleaning for accounting work. He denied that the ever did taxes, or accounting, or payroll for Pearson Dry Cleaning. He denied that he knew either Khalid Mahmood or Muhammad Mahmood. He denied that he ever attended at the premises of Pearson Dry Cleaning.

[126] Mr. Babbar denied that he had ever met Amritpal Kaur Grewal. He denied that he received money from Ms Grewal to prepare the ROE and employment insurance documents. He denied that he ever gave any instructions with regard to what to say if there were inquiries by Service Canada. He admitted that he had filled out the ROE in her name (Exhibit #1, tab 8). But he said that he completed it on instructions from Jaspal Singh. Mr. Singh gave him the blank ROE, and a paper with instructions of what information to put in the ROE. Mr. Babbar testified that he completed the ROE, but did not sign it, and gave the ROE and written instructions back to Mr. Singh. He testified that he put his own phone number in box 16 of the ROE because Mr. Singh instructed him to.

[127] Mr. Babbar's evidence was essentially with same as outlined in the preceding paragraph with respect to the ROEs in the names of Vimalpreet Kaur (Exhibit #1, tab 18), Amandeep Kaur Tamber (Exhibit #1, tab 24), Sarabjit Kaur Dhindsa (Exhibit #1, tab 5), Amandeep Kaur Sidhu (Exhibit #1, tab 20), and Mandeep Kaur Chohan (Exhibit #1, tab 16). All of these ROEs also named Pearson Dry Cleaning as the employer.

[128] In relation to Ujjal Dhawan, the defendant testified that he met him at the H and B Accounting office. He testified that H and B Accounting did accounting services for Mr. Dhawan. He testified that he never had access to Mr. Dhawan's bank accounts, and never used any cheques from Mr. Dhawan's bank accounts. Mr. Babbar testified that he did not communicate with Mr. Dhawan in 2010 and 2011 when the ROEs at issue in relation to Extreme Computing Inc. were prepared. Rather, he testified that he only met Mr. Dhawan in 2013 or 2014 when his computer at home was not working, and Jaspal Singh recommended Mr. Dhawan to Mr. Babbar to fix the computer.

[129] Mr. Babbar testified that he prepared the ROE in the name of Sanjay Jadhav for Extreme Computing Inc. (Exhibit #1, tab 11) on instructions from Jaspal Singh. He testified that he did not know Sanjay Jadhav. He testified that he did not recognize the phone number in box 16 (which was different than the phone number on the Pearson Dry Cleaning ROEs). He testified that he did not sign the ROE, and that he gave it back to Jaspal Singh when it was completed.

[130] Mr. Babbar's evidence was essentially the same as in the preceding paragraph with respect to the ROE in the names of Mumnaza Syed (Exhibit #1, tab 22). This ROE also related to Extreme Computing Inc.

[131] Mr. Babbar's evidence was similar to paragraph 129 with respect to the ROE in the name of Narinder Kaur Gujjar for Extreme Computing (Exhibit #1, tab 9). However, I note that Mr. Babbar put his own phone number in box 16, although the name of the contact person was not his name. This was also the case for the ROE in the name of Kuldip Kalkat for Extreme Computing Inc. Mr. Babbar testified that he put his own phone number in box 16 because Jaspal Singh asked him to do so. Mr. Babbar's evidence with respect to the ROE in the name of Satinderjit Dhaliwal for Extreme Computing (Exhibit #1, tab 4) was essentially the same.

[132] Mr. Babbar testified that he knew Amarjit Chohan because he had taken truck training from him at Holland Truck Company around 2005. Mr. Babbar denied that he was ever Mr. Chohan's accountant, that he did taxes for him, or that he was ever paid by Mr. Chohan for such work.

[133] Mr. Babbar testified in relation to the ROE in the name of Mandeep Kaur Chohan for Holland Truck Training (Exhibit #1, tab 15) that he prepared it on instructions from Jaspal Singh. He filled out the body of the ROE, but did not sign it, and gave it back to Mr. Singh. He denied that he ever met Mandeep Kaur Chohan or received money from her for the ROE. I note that this ROE also has Mr. Babbar's phone number in box 16 with someone else's name as the contact person.

[134] Mr. Babbar denied that Evans Biotech Inc. was a client of his. With respect to the ROE in the name of Aruna Bhatia (Exhibit #1, tab 2), he denied that he had ever met Ms Bhatia or received money from her for the ROE. He testified that he prepared the ROE on instructions from Jaspal Singh. He testified that he did not sign the ROE, and gave it back to Jaspal Singh when it was completed. I note that this ROE also has the defendant's phone number in box 16, with someone else's name listed as the contact person.

[135] Mr. Babbar denied that he ever advised anyone not to cooperate with the Service Canada investigation.

[136] Mr. Babbar testified that he had heard of Fountain Plumbing, but that it was not a client of his. He testified that he knew Iqbal Kachyara because he was a relative. Iqbal Kachyara is the individual named in the ROE at Exhibit #1, tab 13 in relation to Fountain Plumbing. Mr. Babbar testified that he filled out that ROE, but that he did so on instructions from Jaspal Singh. He testified that he did not deal directly with either Iqbal Kachyara or Satwinder Kaur in relation to the ROE. He denied that he assisted Mr. Kachyara to prepare his EI application. I note that box 16 of this ROE also lists Mr. Babbar's phone number with the name of someone else as the contact person.

[137] Mr. Babbar testified that he had heard of Fine Tech Computers Inc., but he denied it was a client of his. Rather, it was a client of H and B Accounting. He testified that he never met the owners of Fine Tech Computing Inc., Prabhjot and Sukhjeet Bhullar. He testified that they were not clients of his, and he did not do their taxes.

[138] In relation to the ROE in the name of Nadia Wadood for Finetech Computers Inc. (Exhibit #1, tab 25), Mr. Babbar testified that he did not know Nadia Wadood, he had not taken money from her or her husband to prepare the ROE, and he did not help her to submit her EI application (Exhibit #1, tab 50). He denied that she had ever attended at his home, and denied that he had ever done taxes for her. He testified that he prepared the ROE based on information and instructions provided to him by Jaspal Singh. He testified that he put his name and phone number as the contact person because Jaspal Singh told him to do so. He did not sign the ROE, and gave it back to Jaspal Singh when it was completed.

[139] In relation to the ROE in the name of Sukhjeet Bhullar for Finetech Computers Inc. (Exhibit #1, tab 3), Mr. Babbar testified that he did not know Mr. Bhullar. He testified that he prepared the ROE based on instructions and information from Jaspal Singh. He agreed that his name was in box 16 as the contact person, but with a phone number he did not recognize. He agreed that his name was at the bottom of the document as the issuer, but testified that he did not sign the ROE. He testified that he never directed Mr. Bhullar to be dishonest in his EI application.

[140] In relation to the ROE in the name of Rupinder Kaur Chohan for Babbar Accounting (Exhibit #1, tab 17), Mr. Babbar testified that Ms Chohan was an employee of Babbar Accounting. He testified that during the time she worked for Babbar Accounting, he saw her daily. He testified that his partner, Baljinder Bhullar hired her to work for them. He testified that he completed her ROE when she stopped working for the company. He testified that he got the information to complete the ROE from Jaspal Singh. He testified that Jaspal Singh did the payroll for Babbar Accounting. Mr. Babbar denied that he ever prepared taxes for Rupinder Chohan. He denied that he was paid by Ms Chohan to provide the ROE for her.

[141] Mr. Babbar testified that he never had a website for Babbar Accounting. He testified that he never had his own fax number of fax machine for Babbar Accounting. He denied that he had an email address for Babbar Accounting. He denied that he had ever made or distributed the business card which Ujjal Dhawan testified that Mr. Babbar had given him (Exhibit #5). He testified that he did not recognize the email address on Exhibit #5. He testified that the website on Exhibit #5 was not his website. He testified that he did not recognize the fax number on Exhibit #5. He testified that the other two phone numbers on Exhibit #5 were his home phone number and his cell number. He testified that after Ujjal Dhawan provided him assistance with his computer in 2013, in 2014 Mr. Dhawan told him that he did card designing and web pages. Mr. Dhawan designed a website for him in a different name (Babbar and Associate), but the website was never up and running.

[142] In relation to Shiva Indian Cuisine, Mr. Babbar agreed that the company was registered as having an address that was his own home address (see Exhibit #2, tab 2), and some of the ROEs for Shiva Indian Cuisine had his home address (Exhibit #1, tabs 6 and 10). He testified that he became aware of this when mail arrived at his home addressed to Shiva Indian Cuisine. He asked Jaspal Singh about it. Mr. Singh told him to bring the letter to the office, and that the business was just using his address as a mailing address. Mr. Babbar testified that he told Mr. Singh he was concerned about his home address being used. Mr. Singh said they would change the address. A later Shiva Indian Cuisine ROE has a different business address (Exhibit #1, tab 1).

[143] In relation to the ROE in the name of Ramandeep Kaur Bains for Shiva Indian Cuisine (Exhibit #1, tab 1), Mr. Babbar testified that he did not know Ms Bains (or under the name Ms Narwal), and that he did not provide accounting services for her, or take money from her or anyone else for this ROE. He testified that he prepared the ROE based on instructions and information from Jaspal Singh. He testified that he did not sign the ROE. I note that this ROE has the defendant's phone number in box 16 with someone else's name as the contact person.

[144] Mr. Babbar testified that he continued to do his work from Mr. Singh's office location until 2012. At that point he had an office in his own home for 5 or 6 months, and then he set up another office elsewhere.

[145] In cross-examination, Mr. Babbar testified that he met Jaspal Singh in 2008 when he (Mr. Babbar) was associated with World Financial Group, which dealt in insurance. He testified that Mr. Singh was an accountant, but that he did not know if he was certified as a chartered accountant. He agreed that he worked at Mr. Singh's office for three to four years (2008 to 2012) and saw him mostly daily during that time. He denied he did tax work for Mr. Singh. He denied that Mr. Singh introduced him to clients. He testified that he only did data entry work (for Mr. Singh). Mr. Babbar testified that Mr. Singh had three or four employees, but that he could not remember their names. He testified that the data entry work he did for Mr. Singh was for companies, not for individuals.

[146] Mr. Babbar testified that it was in December 2009 that he and his partner set up their own business, but did work as subcontractors to Jaspal Singh. He testified that Jaspal Singh did the incorporation of Babbar Accounting for them. He testified that he made the same amount of money working as a subcontractor as he had previously when he was employed by Mr. Singh. He testified that Mr. Singh paid him $2,400 a month when he was an employee, paid by cheque. He testified that when he started working as a subcontractor, he was paid on commission. He said that Mr. Singh would pay him a commission for doing data entry based on what the client was paying. He testified that the commission he was paid was 30 or 40 percent. For example, if a client was paying $10,000, Mr. Singh would pay Mr. Babbar $3,000 or $4,000. Mr. Babbar testified that as a subcontractor, his company was making $5,000 or $6,000 per month. This was more than he was individually paid when he was an employee, but the company had its own employees. He testified that when working as a subcontractor, he personally made $1,500 to $2,000 per month. He testified that the subcontracting arrangement with Jaspal Singh ended in February or March 2013, and his business (Babbar Accounting) also stopped at that time.

[147] Mr. Babbar said that he did nothing to confirm how much Mr. Singh was getting paid by his clients (i.e., he did nothing to confirm that he was getting paid his percentage of commission fairly). Mr. Babbar testified that he did not have a contract with Jaspal Singh, but that their agreement was all verbal.

[148] Mr. Singh would pay him by both cash and cheque. Mr. Babbar did not keep copies of any of the cheques, or have any other records of being paid by Mr. Singh. Mr. Babbar testified that he paid his own employees with both cash and cheques. He did not keep copies of any of the cheques or cheque stubs. He testified that all the records were with Jaspal Singh, as he prepared the cheques. He testified that even for employees of Babbar Accounting, Jaspal Singh would give him information and instructions to prepare ROEs.

[149] Mr. Babbar testified that he had no records about his own company Babbar Accounting, because Jaspal Singh did the company's taxes and kept all the records. He later testified that his partner Baljinder Bhullar had the records.

[150] Mr. Babbar testified that Babbar Accounting had two or three employees. He said he could not remember all of their names, but that three employees were Mandeep Kaur and Rupinder Chohan and Jaswinder Singh. He testified than Mandeep Kaur stopped working for him when she moved to Vancouver in 2012. He testified that he did not recall when Rupinder Chohan stopped working or why. He testified that Jaswinder Singh still worked for him for a new company.

[151] Mr. Babbar agreed that his partner (Baljinder Bhullar) and his employees all knew Jaspal Singh, and they all worked in the same office (at H and B Accounting). He agreed that they would all see each other every day. But he agreed that Jaspal Singh only gave the work of preparing ROEs to Mr. Babbar and Mr. Bhullar, but they would not give this work to their employees.

[152] Mr. Babbar maintained in cross-examination that Jaspal Singh asked him to prepare the ROEs because his handwriting was good. He also said that Jaspal Singh said his other employees were busy.

[153] Mr. Babbar testified that he never verified that information Mr. Singh gave him to prepare the ROEs because he did not have access to the payroll records.

[154] Later in cross-examination, Mr. Babbar said that he had from the time he started Babbar Accounting 10 or 11 employees (not all at the same time). He denied that this was different than his earlier response of three employees. He said he only had two or three employees at a given time, and they at busy season they hired more employees. He could not remember the names of the other employees, other than the three named above at paragraph 150.

[155] When cross-examined about what he paid the employees (which he agreed would work out to about $6,000 a month for three employees), and that his answers seemed inconsistent with his evidence that the company made $5,000 or $6,000 a month, Mr. Babbar testified that $5,000 to $6,000 a month was the net income of the company, and that the gross income per months was $15,000 to $20,000, sometimes more and sometimes less. Prosecution counsel then cross-examined about whether this amount of gross income was inconsistent with Mr. Babbar's earlier evidence that he and his partner took home approximately $1,500 to $2,000 per month from the business (as $6,000 for salaries and $2,000 each for Mr. Babbar and his partner would only add up to $10,000). Mr. Babbar responded that they had expenses such as phone, vehicles, software, stationary, and meals. Mr. Babbar asserted that even though Jaspal Singh provided him with a computer, he had to buy his own software.

[156] Mr. Babbar denied that he did accounting work from his home during the time he worked for H and B Accounting or as a subcontractor for H and B (2008 to 2012 or 2013).

[157] Mr. Babbar testified that Mr. Singh gave him written instructions for the information to include in ROEs. But Mr. Babbar no longer had those written instructions because he would return them to Mr. Singh with the completed ROEs.

[158] Mr. Babbar testified that Mr. Bhullar was not longer in the Brampton area, and he did not know where he had gone, maybe to Vancouver.

[159] Mr. Babbar testified that he never did tax work for Mr. Singh's clients. He testified that Jaspal Singh did the tax work for Babbar Accounting.

[160] Mr. Babbar denied that he knew Nadia Wadood (the purported employee listed in Exhibit #1, tab 25), or Aruna Bhatia (the purported employee listed in Exhibit #1, tab 2), although both women were listed as living at the same address a few doors away from his own home address.

[161] In cross-examination, Mr. Babbar was shown the originals of all but one of the ROEs at issue (Exhibits #14-#32). Prosecution counsel confronted Mr. Babbar with the suggestion that for all of the ROEs, except that Nadia Wadood ROE, which Prabhjot Bhullar had testified that she signed (Exhibit #1, tab 25, and also Exhibit #17), the colour of the ink used in the body of the ROE (which Mr. Babbar admitted her prepared) was the same colour, and appeared to be the same thickness and otherwise look similar to the ink used to sign the ROE (although Mr. Babbar denied that he did the signatures). Some of the ROEs were completed and signed in black ink, some in blue ink, but in each case, apart from the Nadia Wadood ROE, the ink in the signature appeared to match the ink in the rest of the document.

[162] In response to this line of cross-examination, Mr. Babbar maintained that he did not sign the ROEs. He testified that Jaspal Singh used to have pens printed for the office (I understood this to mean that he would order a particular type of pen with the company logo), and there would be four or five pens lying on the table. He said Jaspal Singh would order 4,000 or 5,000 pens printed with the company name for advertising. So there were many of the same kind of pen in the office. When asked about the fact that some of the ROEs were prepared (and signed) in blue ink, and some in black ink, Mr. Babbar testified that Jaspal Singh ordered 2,000 to 2,500 pens in black ink and 2,000 to 2,500 in blue ink. He later said that the pens were ordered in black, blue, red and green inks.

[163] Crown counsel also confronted Mr. Babbar with an ROE for an employee of Babbar Accounting (Exhibit #12 - not one of the counts charged), which listed the employee's job as "tax preparer". Prosecution counsel asked why the person's job at Babbar Accounting was listed as "tax preparer" if Babbar Accounting did not do tax returns and only did data entry. Mr. Babbar testified that the employee did GST, and PST summaries, that is, summaries of sales tax collected in relation to sales. He maintained that the employee did not prepare tax returns.

[164] When asked in cross-examination why the company was called Babbar Accounting, if he did not do any accounting work, Mr. Babbar testified that Jaspal Singh chose the name for the company. When asked why he was okay with that name if the company did not do accounting work, Mr. Babbar testified that he did not have much knowledge of it.

[165] Mr. Babbar was asked in cross-examination if he found it odd that Mr. Singh was asking him to put his own phone number on many of the ROEs. Mr. Babbar replied that he just did whatever Mr. Singh asked him to do. He denied that he had any knowledge that the contents of the ROEs was false, and was not suspicious that they might be false.

[166] Mr. Babbar maintained in cross-examination that he had never gone on the EI website to complete an EI application for anyone.

[167] In relation to Prabhjot Bhullar, Mr. Babbar denied the suggestion that he helped her with legal issues related to the Service Canada investigation into ROEs. He maintained that he did not know Prabhjot Bhullar.

[168] In relation to Iqbal Kachyara and Satwinder Kaur and Fountain Plumbing, Mr. Babbar denied that he knew that the company was not operating. He denied that he had helped her with accounting work in the past. He denied that Ms Kaur and her husband asked him to prepare the ROE, but rather said that Jaspal Singh had asked him to prepare it.

Documentary Evidence Issues in Relation to Handwriting Comparison Issues and Ink Colour

[169] There are several issues that I must consider in relation to assessing the handwriting and ink in the original ROEs filed in evidence. I highlight at the outset that the defendant's position is that he prepared the body of each ROE (but without knowing that the content was false), but that he did not sign any of the ROEs. As a result, it is not in dispute that the handwriting in the body of each ROE is the defendant's handwriting.

[170] No expert evidence in handwriting comparison was led by the prosecution. Nor was any expert evidence led with respect to comparison of the ink used for different parts of each ROE, in particular, whether the ink in the body of any individual ROE was the same or had similar characteristics as the ink used to sign the ROE.

[171] There are three issues that I consider with respect to the handwriting and ink in the ROEs. First, Should I draw any inferences from comparison of the body of each ROE to the signature at the bottom of each ROE? That is, should I draw an inference from the writing in the body of each ROE, which the defendant admits is his handwriting, that by comparing that writing to the signatures at the bottom, I could conclude that the signatures are also the defendant's writing?

[172] Second, two witnesses, Prabhjot and Sukhjeet Bhullar, testified that the signature on the ROE in the name of Sukhjeet Bhullar (Exhibit #1, tab 3) was the defendant's signature. They testified that they knew his signature from other accounting documents he had prepared for them. What weight should I accord to this evidence (assuming for the moment that I accept their evidence as credible in the sense that they honestly believe it is the defendant's signature)? Prosecution counsel argues that I should find the evidence of the Bhullar's identifying the signature on the ROE at Exhibit #1, tab 3 to be reliable, and further, based on that, I should find that other signatures in the defendant's name for ROEs for Babbar Accounting are, in fact, the defendant's signature. Prosecution counsel argues that if I make this finding, I should then find that the defendant misled the court in denying that he signed any of the ROEs.

[173] Third, prosecution counsel argues that on a review of all of the ROEs, for all of them except the one that Ms Bhullar testified she signed (Exhibit #1, tab 25), the ink used to complete the body of any particular ROE appears to have the same characteristics in terms of colour and thickness as the ink used to sign the ROE. Prosecution counsel argues that this supports an inference that for each individual ROE, the same pen was used to complete the body and the signature, which supports the inference (along with the rest of the evidence) that one person completed the body of each ROE and signed it (with the exception of Exhibit #1, tab 25)

[174] As I noted above, no expert evidence in relation to handwriting analysis was led by the prosecution. Although expert evidence is one means of proving issues related to handwriting comparison, it is not the only means. It is well-established in the case law establishing that handwriting in a document is a particular person's handwriting can also be proven by two other methods. One method is by the trier of fact comparing a document containing handwriting proven or admitted to be the handwriting of the person at issue, to the handwriting in the disputed document. Another method of proof is by a witness who is familiar with the handwriting of the person whose handwriting is alleged to be the writing in the disputed document testifying that they are familiar with the person's handwriting, and identifying the handwriting in the disputed document as being that person's writing. These three methods of proving who wrote a particular document are sometimes combined in a particular case. A good summary of the law in this area can be found in Justice Hill's decision in R. v. Cunsolo, 2011 ONSC 1349 at paras. 197-206, 242-256, 287-288, 296-307. I note that Cunsolo also highlights the various cautions a trier of fact should bear in mind in assessing this type of evidence at paras. 251-256. Cunsolo was affirmed by the Court of Appeal, including on the handwriting issue: 2014 ONCA 364 at paras. 30-34, 40-44.

[175] I turn back to the three issues I outlined in paragraphs 171-173 above. On the first issue, I find that I am unable to draw any inferences from comparing the characteristics of the handwriting in the body of each ROE to the signature at the bottom of each ROE (I will deal with issues of the ink separately below). Although it is open to me to make my own handwriting comparison between different documents, or different parts of a document, in this case, in comparing the writing in the body of the ROE to the signature on each ROE, I find that because the body of each ROE is primarily in printing, and the signature of each ROE is in cursive, I am unable to make any reliable comparison between them. It is like comparing apples and oranges. The case law recognizes that when a trier of fact engages in handwriting comparison, it should do so based on objective factors (Cunsolo at paras. 251-256). Where the proven or admitted handwriting (in this case the body of each ROE) is printed, and the disputed handwriting (in this case the signature of each ROE) is in cursive, it is difficult (if not impossible) to engage in an objective comparison between the two.

[176] The second issue in relation to handwriting relates to the evidence of Mr. and Ms Bhullar identifying the signature in the ROE at Exhibit #1, tab 3, as the defendant's signature. Mr. and Ms Bhullar both identified the signature as the defendant's, and said that they recognized it because they had seen his signature on other accounting work he did for them. I note that neither Mr. or Ms Bhullar described in their evidence any particular characteristics of the signature on Exhibit #1, tab 3 that led them to conclude it was the defendant's signature. I accept that the Bhullar's are being honest in their belief that the signature in Exhibit #1, tab 3 is the defendant's. However, I find that their evidence is so conclusory that I do not find it reliable. On their evidence, it was years earlier that the defendant did accounting work for them. There was no suggestion that they recently reviewed actual signatures of the defendant for comparison. They did not describe any particular aspect of the signature that led them to conclude that the signature on Exhibit #1, tab 3 was the defendant's signature. In all of the circumstances, I do not find that I am persuaded of the reliability of their evidence identifying the signature in Exhibit #1, tab 3 as the defendant's signature.

[177] The third issue in relation to the documents is the fact that, with the exception the Nadia Wadood ROE (which Prabhjot Bhullar testified she signed; Exhibit #1, tab 25, and Exhibit #17), every other ROE is entirely completed in the same colour ink, including the signature (see paragraphs 161-162 above). And in addition to colour, the ink appears to share the same characteristic throughout each ROE, in terms of thickness. Apart from the Nadia Wadood ROE, although some of the ROEs are completed in blue ink, and some are completed in black ink, each one is completed in ink that is the same colour and same thickness throughout the document. The signature is done in ink that appears the same as the ink used for the body of the ROE.

[178] Prosecution counsel argues that this can be used as circumstantial evidence to support the inference that the same person completed and signed each ROE (i.e., to counter the defendant's assertion that he completed the body of the ROEs, but did not sign them). Prosecution counsel argues that the court can draw circumstantial inferences from the appearance of the ink, and that it is open to the court to draw the conclusion that with a large number of ROEs, it is unlikely that it was coincidence that each time the signature is in ink that looks the same as the ink in the body of the document. Rather, prosecution counsel argues, the fact that the ink in the body and signature of each documents looks the same is circumstantial evidence supporting the inference that the same person completed and signed each ROE. As I have noted above, no expert forensic evidence was led with respect to comparison of the ink in the body of each ROE to the signature. Prosecution counsel concedes that in the absence of expert evidence, he cannot conclusively prove that the ink used in the body of each ROE is the same as the ink used for the signature. The inference he seeks to draw is that given the large number of ROE, there is an improbability of coincidence that ink that looks the same was used to sign each ROE if they were signed at a difference time and by a different person than the person who completed the body of the ROE. This, the prosecution argues, supports the inference that the defendant not only completed the body of the ROEs, but that he also signed them.

[179] Prosecution counsel presented a number of trial level decisions which touch on the issue of comparison of ink by the trier of fact within a document, in drawing inferences about whether the same person completed all of a particular document. The most similar to this case of the cases presented by Crown counsel on the ink comparison issue is R. v. Guo, 2009 ONCJ 542 at paras. 26 and 54. None of the trial level decisions presented by prosecution counsel is binding on me.

[180] I accept the proposition that in assessing if parts of a document were completed by the same person a trier of fact may consider the colour and characteristics of the ink used to complete different parts of the document as circumstantial evidence that the document was completed at the same time, by the same person. The strength of such an inference in any particular case will vary depending on all of the evidence in a particular case. Although expert evidence is admissible on the issue of ink comparison, the absence of expert evidence does not prevent a trier of fact from drawing its own inferences from comparing ink characteristics in different parts of a document, so long as the trier of fact is cautious not to overstate the probative value of such evidence.

[181] I find that I can consider the fact that for each ROE, (except Exhibit #1, tab 25, and Exhibit #18, which was signed by Prabhjot Bhullar), the signature was done in the same colour ink as the body of the document, and ink that otherwise looks the same (e.g. thickness), as some circumstantial evidence that the document was signed by the same person who completed the body of the document. Another way of looking at it is that the fact that the signature was done in the same colour ink, with all the same characteristics (width etc.) as the ink used in the body of the ROE, is evidence that tends to rebut the defendant's position that he completed the body of the ROEs, but that someone else did the signature at a later time.

[182] I find that the evidence has this probative value because of the common sense inference, which anyone who has ever worked in any kind of office is familiar with, that all offices have a variety of types of pens in them. Pens are ordered, often many of one or more particular types. But pens come in and out of all offices in a variety of ways, the main one being the employees carrying them in and out. Given the common sense inference that any office will have a variety of types of pens in it, it is unlikely, that if a signature was added to a document at a later time than when the body of the document was completed, that the signature would always be ink that shares the same characteristics as the ink used in the body of the document. In this case were are dealing with 17 ROEs on the counts still at issue (excluding the one signed by Prabhjot Bhullar). I find that to have that many ROEs signed with what appears to be the same ink as the body of the document, if the signatures were added later, is a very unlikely proposition.

[183] I have considered Mr. Babbar's evidence that a possible explanation for the simi7ar ink is that Mr. Singh used to order a certain type of pen by the thousands. I have three difficulties with this explanation. First, there was some inconsistency with Mr. Babbar's explanation of the pens ordered. He initially said that blue pens were ordered, but then when he was confronted with ROEs prepared in black ink with a matching black ink signature, he added that Mr. Singh also ordered thousands of matching black ink pens, and later added that they were also ordered in red and green inks. This inconsistency troubles me. Second, even accepting for the sake of argument the evidence about Mr. Singh ordering many of the same pens in different colour inks, it is still unlikely that if the documents were signed later by someone else, that person always picked a matching ink to the body of the ROE. Third, again, even accepting for the sake of argument the evidence about Mr. Singh ordering many of the same kinds of pens, for the reasons I have explained earlier, I am not prepared to accept that these were the only kinds of pens in the office. As I have explained, in all types of offices, pens come and go with the employees. Thus, I am unable to accept that the only pens in the office were the pens ordered by Mr. Singh.

[184] I caution myself not to give this evidence excessive weight. It must be considered in the context of the evidence as a whole. The fact that the ink in the body each ROE is the same colour and shares similar characteristics to the ink used to sign the ROE is not conclusive proof, standing alone, that the same person completed the body of the document and signed it. But it is a factor I weigh as providing some circumstantial support to prosecution argument that whoever completed the body of the form also signed

Prosecution Application to Have Evidence on Each Count Apply Against the Other Counts as Similar Fact Evidence

[185] Prosecution counsel brought an application to have the evidence on each count before the court admitted as similar fact evidence in relation to the other counts. Counsel argues that the evidence in relevant to the court's consideration of Mr. Babbar's intention and knowledge that the content of the ROEs and EI applications was false or misleading. In summary form, prosecution counsel argues that the evidence on all of the counts shows a series of events in which similar conduct took place in each count, there is a temporal connection between the activities at issue in each count, and that the totality of the evidence is relevant to prove a plan, pattern or scheme of fraud. Prosecution counsel notes as well, that given the defence position that Mr. Babbar was a dupe and lacked an intent to commit fraud, and is the same position on every count as to how events transpired, the nature of the defence led also supports the admissibility of the evidence count to count as relevant to assessing Mr. Babbar's intent.

[186] Counsel for Mr. Babbar contested the similar fact application, but candidly advised the court that there were some aspects he opposed more than others. There were three main points made by defence counsel. First, he noted that some of the employers entered guilty pleas to failing to provide documents to the Service Canada investigation (Prabhjot Bhullar), or were charged with failing to provide documents (most of the business owners), or admitted knowledge of conduct that would amount to improper EI claims (Varinder Sharma, and arguably Prabhjot Bhullar). He argued that this affected the probative value and prejudice assessment, since it impacts on the credibility of those witnesses. Second, he argued that while many of the purported employees said they paid for the ROEs, not all of them did. I understood this to be an argument for lack of similarity between counts. Third, he argued that there were three counts related to Shiva Indian Cuisine, but no representative from the company was called, and the individual named in the ROE was only called for one of the three counts (this last issue became moot, as Crown counsel withdraw the two Shiva counts where neither a purported employee or the business over was called in closing submissions – counts #11 and #22).

[187] The Supreme Court of Canada decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, sets out the framework for analyzing whether similar fact evidence should be admitted. The starting point is that similar fact evidence is presumptively inadmissible, because it is evidence of discreditable conduct which relates to an event other than the particular count at issue. Similar fact evidence may be admitted if the prosecution demonstrates on a balance of probabilities that in the context of a particular case, the evidence is relevant and material, and that its probative value in relation to a particular issue outweighs its potential prejudicial effect.

[188] The probative value and potential prejudicial effect of similar fact evidence can be assessed by reference to the following factors set out in Handy:

(i) the strength of the evidence (is it capable of belief? Are there concerns about collusion?);

(ii) the live issue at trial to which the evidence relates;

(iii) the similarity of the evidence and the extent to which the evidence tends to prove the proposition being asserted;

(iv) if the evidence is capable of supporting the inferences for which the prosecution seeks to tender it, potential prejudice to the defendant must be assessed.

[189] I will deal briefly with the strength of the evidence. Although there were various challenges made to the credibility of the prosecution witnesses, I find that none of them rise to the level that they impact on the probative value assessment of the similar fact evidence. Rather, they are issues for the trier of fact. In response to the argument made by defence counsel about the credibility of some witnesses, outlined at paragraph 186 above, I find that the possible issues with the credibility of some of the business owner witnesses do not rise to the level that they render the proposed similar fact evidence so lacking in probative value that it should be excluded. I find that they are the type of credibility issues that are appropriately left to the trier of fact.

[190] In assessing the admissibility of the evidence count to count, I have considered whether there may have been collusion between witnesses which would weaken the underlying unity of the count to count similar fact inferences as discussed in Handy. I will discuss this first in relation to the putative employee witnesses, and then in relation to the employer witnesses.

[191] The issue of collusion is not a live issue for the putative employee witnesses. There is no evidence that they are known to each other, and no basis to believe they were somehow contaminated during the investigation.

[192] I turn then to the employer witnesses. As I have outlined above, some of the employer witnesses knew each other, and some of the employer witnesses were interviewed together by the Service Canada investigator (a practice which would be best avoided in the future).

[193] I find that this is a case where in relation to some of the witnesses there was merely the opportunity for collusion, rather than there being an air of reality to there being actual collusion (intentional or unintentional): see Handy at para. 111. I find that the record does not raise sufficient evidence of actual collusion to weaken the evidence of these witnesses such that the prejudicial effect of using the evidence count to count outweighs its probative value. Issues of communication between some of the witnesses is a factor that I can consider in the ultimate assessment of credibility.

[194] I note as well that in relation to the employer witnesses, the similar fact use of their evidence is more limited that for the putative employee witnesses. For the employees, there is a clear pattern of alleged interaction between the putative employees and the defendant (in very simple terms, the defendant telling them that he could get them an ROE so they could apply for EI benefits, in exchange for money, despite their not having worked at a particular business). For the employers, the similar fact inferences are more limited. In effect, the similar fact use that can be made of the employers' evidence is that they all say the defendant did accounting work for them, and as such, the defendant had access to information about their businesses that would allow him the means to prepare false ROEs.

[195] I will deal with the issue at trial for which the similar fact evidence is tendered together with the similarity of the evidence and the extent to which it tends to prove the proposition for which it is tendered together.

[196] In R. v. Sahaidak, [1990] O.J. 3228 at paras. 148-152 (Ont. H.C.), Justice Doherty as a member of the Superior Court considered the use of evidence across counts on a multi-count fraud Indictment. Justice Doherty held as follows at para. 150-152:

"In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings, and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant to one count is admissible on the other counts as well. [Citation omitted]

"In this case, Mr. Sahaidak's knowledge of the fraudulent nature of the transactions is the central issue. In my view, evidence of his involvement in and knowledge of any of these transactions is relevant to a determination of his state of knowledge on the other transactions."

[197] The analysis from Sahaidak was approved and applied by the Court of Appeal in R. v. Kirk, [2004] O.J. No. 3442, a case also involving a multi-count Information for fraud where there were similarities in the manner in which each individual transaction was alleged to have been carried out. Also helpful in considering similar fact evidence in this context is the decision of Justice Hill in R. v. Downey, [2002] O.J. No. 2228 (ONSC); affirmed, [2005] O.J. No. 6301 (ONCA).

[198] In this case, the prosecution argues that viewing the evidence across counts, there is a pattern of behaviour involving the defendant that shows a plan or scheme, and hence supports the inference that the defendant had knowledge that the content of the ROEs was false or misleading. Thus, the fact in issue for which the similar fact evidence is tendered is the defendant's knowledge that the statements in the ROEs were false and misleading, and were made as part of a plan or scheme devised by the defendant. I have no difficulty in finding that this is a central issue in this case.

[199] I find that there is sufficient similarity across counts for the evidence to be probative of the defendant's knowledge and of the issue of whether the defendant had a plan or scheme for provide false ROEs, usually in exchange for money. There are a large number of ROEs at issue. There is a close temporal connection between the ROEs in that they were issued in a two and a half year period between September 2009 and March 2012. The evidence of the putative employees regarding how they obtained the ROEs is very similar (i.e., in most cases, that the defendant told them he could assist them in obtaining maternity benefits; that he gave them and ROE in exchange for money, in circumstances where they had not worked at the business listed in the ROE). The evidence of the business owner/employer witnesses is also similar in that they all testified that the defendant did accounting and/or tax work for them, and thus had access to information about their businesses that would enable him to prepare ROEs in the name of the business.

[200] I find that this case is like Kirk, and Sahaidak, in that the evidence in relation to each count is probative of the inference of an ongoing pattern of dealings. Looking at the evidence in the prosecution for a moment, the evidence in relation to each count, shows the same pattern of activity on each count. On some counts I heard only from the putative employer, in some counts from the putative employee, and on some counts from both. In each case, an ROE was prepared, and a person applied for employment insurance benefits using the ROE. For each count, it is alleged that the defendant prepared the ROE (which the defendant does not contest, although he insists that he did not sign them), and on each count the putative employer or employee, or both testify that the person did not in fact work for the company. In this context, as a matter of logic and common sense, the events underlying each count also enlighten and assist the court in assessing the evidence on the other counts.

[201] I note that this analysis also holds if one considers the evidence from the defence theory of the case. As I have outlined above, Mr. Babbar agreed that he prepared all of the ROEs, but says he did so at the direction and on the instructions of Jaspal Singh, who he did work for as a contractor. Further, Mr. Babbar testified that in relation to all of the ROEs, he returned the written instructions to Jaspal Singh, and returned the completed unsigned ROE to Jaspal Singh. Further, Mr. Babbar testified for all of the ROEs that he did not sign the ROEs, or deal with the employer or employee clients directly. Thus, the defence theory for all counts is that the pattern of events was the same, and that Mr. Babbar lacked the intent to commit fraud. Thus, even on the defence theory, the evidence on each count is part of a pattern of events. As a matter of logic and common sense, the underlying events of each count enlighten and assist the court in assessing the evidence on the other counts.

[202] With respect to the defence argument that not all of the putative employees said they paid for the ROEs, I find that counsel is incorrect in his recollection of the evidence. Of the women who testified that they did not work at the businesses named in the ROEs, all of them (Amritpal Grewal, Mandeep Kaur Baidwan, Nadia Wadood, Ramandeep Kaur Narwal, and Rupinder Kaur Chohan), testified that they paid for the ROEs. These witnesses' evidence relates to counts #1, #2, #9, #15, #19, #28, #30, and #31. Satwinder Kaur, the owner of Fountain Plumbing, testified that in relation to the ROE for her husband obtained from the defendant, the defendant told them her husband could get EI benefits if they gave the defendant some cheques in payment as tax. Thus, she also gave evidence of a payment for the ROE. Only Sukhjeet Bhullar did not testify that he paid for his ROE. But as I have outlined, the prosecution theory of count #10 is different, as it related to his work not being "insurable employment", because he was working for his wife's business.

[203] Thus, I find that the proposed similar fact evidence has significant probative value to the issue of the defendant's knowledge, and whether his actions were part of a plan or scheme to produce false ROEs.

[204] I turn then to balancing the probative value against the potential prejudice. The type of prejudice that is relevant is the risk of propensity reasoning, in particular the risk that it may lead a trier of fact to convict based on reasoning that the defendant is of bad character, the risk that the similar fact evidence will confuse issues or unduly lengthen the trial, or the risk that the defendant may for some reason be unable to respond to the similar fact evidence (particularly if it is off-Indictment similar fact, and thus widens the issues at trial).

[205] I find that the risk of prejudice in this case is minimal, and is greatly outweighed by the probative value of the evidence. I instruct myself not to engage in propensity reasoning. The inference of a pattern and knowledge on the part of the defendant to potentially be drawn from the number of instances of alleged activity, and the similarity of the activity is distinct from propensity reasoning, and is a valid and probative possible inference.

[206] Further, there is no risk of prejudice from lengthening the trial, or confusing the issues in the trial, or from the defendant not being able to respond to the proposed similar fact evidence, because all of the proposed similar fact evidence relates to counts in the Information.

[207] For these reasons, I allow the prosecution's application for the evidence on each count to be admissible as similar fact evidence in relation to the other counts.

Findings of Fact and Credibility

Findings with Respect to the Defendant's Evidence

[208] I will now address my assessment of the defence and prosecution evidence, and findings of fact and credibility.

[209] I do not believe Mr. Babbar's evidence, and it does not leave me with a reasonable doubt. The reasons that I find his evidence not to be credible fall into four categories. First, Mr. Babbar was an evasive and inconsistent witness. Second, significant aspects of his evidence are illogical or so contrary to the weight of the evidence before the court that his evidence is not believable. Third, the defendant's utter lack of any business records to support his evidence is not credible. Fourth, the force of the similar fact evidence is strong, and cannot be explained by coincidence, and in the context of all of the evidence leads me not to believe Mr. Babbar's evidence, and not to be left in a reasonable doubt by it.

[210] I will start with areas where the defendant was evasive and inconsistent in his evidence.

[211] The defendant was evasive and inconsistent about the number of employees of Babbar Accounting. When first asked in cross-examination how many employees he had, he said two or three, but said he could not remember all of their names. He gave three names. He was unable to provide much information about when or in what circumstances they stopped working for him.

[212] Later in cross-examination, the defendant testified that he had 10 or 11 employees. When asked about the inconsistency, the defendant said that at any given time he had two or three employees, but over the life of the business he had 10 or 11 employees. He was unable to provide the names of any other employees than the three he originally provided.

[213] I found the defendant to be inconsistent and evasive about the revenues of Babbar Accounting. Initially he testified that the company made $5,000 to $6,000 per month and that he took home $1,500 to $2,000 per month. When cross-examined about what he paid his employees, and the fact that salaries for employees would appear to be in the range of $6,000 per month, he said that the $5,000 to $6,000 was net income of the company. He testified that the gross income was $15,000 to $20,000. When cross-examined about the fact that on his evidence, employee salaries and what he and his partner would take home would be approximately $10,000, and asked where the rest of the gross income went, he said it went to expenses such as phone, vehicles, software, stationary and meals. I find that Mr. Babbar's evidence on these issues was inconsistent, and that he was shifting his evidence as he was challenged. Further, it is difficult to see how the business would have all of these types of expenses, and expenses of this magnitude if all they did was data entry, and their only client was Jaspal Singh.

[214] I find that Mr. Babbar's evidence about Mr. Singh ordering 4,000 to 5,000 pens of the same type is a convenient fabrication designed to address the fact that on all but one of the original ROEs, the ink used in the body of the ROE appears the same as the ink used to sign the ROE. I find that the number of pens ordered is not believable. I find that Mr. Babbar shifted his evidence on this issue as he was confronted with the original ROEs, first saying 4,000 to 5,000 pens were ordered. Then when it became clear that some of the ROEs were all in black in and some all in blue, saying that 2,000 to 2,500 pens were ordered in blue, and 2,000 to 2,500 were ordered in black. And later saying that the thousands of pens were ordered in blue, black, red, and green inks. I do not believe this evidence.

[215] Further, I did not believe the defendant's evidence that he did not do accounting or prepare tax returns in the face of evidence from his own business to the contrary. As outlined in paragraph 163 above, he prepared an ROE for an employee that listed her occupation as "tax preparer". When confronted with this in cross-examination, he said that she did not prepare tax returns, but did summaries of GST and PST. When asked why his business was called "Babbar Accounting" if he did not do accounting, he said that Jaspal Singh chose the name for the business. I do not believe the defendant's evidence on these issues. It is not credible.

[216] Second, aspects of the defendant's evidence were so illogical or contrary to the weight of the evidence as to be unbelievable. For example, the defendant put his own phone number on many of the ROEs in box 16 as the person to contact for further information, but with someone else's name (see ROEs at Exhibit #1, tabs 1, 4, 5, 8, 9, 13, 14, 15, 16, 18, 20, 24). He testified that he did this because Jaspal Singh told him to. I find the defendant's evidence on this issue unbelievable. The defendant gave no explanation, other than that Jaspal Singh told him to, for why, if a different person was being listed as the contact person for the ROE, the defendant's own phone number would be listed. On the defendant's evidence, he knew nothing about the content of the ROEs and would not be in any position to provide additional information if he was contacted by Service Canada. His evidence on this issue simply makes no sense. Rather, the using of his own contact number is much more supportive of the defendant knowing that the ROEs contained false information, and using his own phone number as the contact number so that he could control what response was given in the event that Service Canada called for further information.

[217] I find that the defendant's evidence that he did not sign the ROEs himself is contrary to the documentary evidence of the original ROEs. As I have explained above, for all of the ROEs at issue, except for the Nadia Wadood ROE (Exhibit #1, tab 25, and Exhibit #17), which Prabhjot Bhullar testified she signed, the characteristics of the ink for the body of the ROE and the signature appear identical. Some of the ROEs are filled out in blue ink, some in black ink. But in all cases, apart from the Nadia Wadood ROE, the signature is in the same colour ink, and ink that appears to be of the same type of pen and same thickness as the ink used to complete the body of the ROE.

[218] I have considered the defendant's evidence that Jaspal Singh ordered many of the same types of pens. In effect, his evidence is suggesting that it is a coincidence that for all of the ROEs except the Nadia Wadood ROE, the ink in the body and the signature appear to be identical. I do not believe this explanation. It defies common sense. First, as I have noted above, I found Mr. Babbar was shifting his evidence during his cross-examination in relation to the types and colours of pens he claims Mr. Singh ordered. But even setting that aside and accepting for the sake of argument that Mr. Singh ordered all these pens, the defendant ultimately testified that the pens were ordered in four different colours – blue, black, red and green. Further, it is the common experience of anyone who has worked in an office of any kind that pens come and go as employees enter and leave the office. Thus, on Mr. Babbar's own evidence, Ms. Singh ordered pens of four different colours, and I find that it is a common sense inference that pens of a variety of types and colours are present in most offices. A large number of original ROEs were put to the defendant in cross-examination, and in every one except the Nadia Wadood ROE, the ink used to complete the body of the ROE looks identical to the ink used to do the signature. I caution myself that I do not have expert forensic analysis of the ink. But I can draw inferences from the commonality of its appearance. I find that it is defies the possibility of coincidence that if Mr. Babbar did not sign the ROEs, and thus the signatures were added at a different time, in every case except the Wadood ROE (which Prabhjot Bhullar testified she signed), the pen used to sign the ROE matched the characteristics of the pen used to fill out the body of the ROE. I do not believe Mr. Babbar's evidence on this point.

[219] My third concern is the lack of records. It is too convenient. Mr. Babbar's evidence is that he completed the ROE's based on written instructions provided by Jaspal Singh, and that he gave back all of the written instructions, and has none he can show the court. Mr. Babbar's evidence is that he had a verbal agreement with Mr. Singh for his work as a subcontractor, and thus has no documentation to show the court. Mr. Babbar's evidence is that he was paid by both cash and cheque by Mr. Singh, but that he has not records of the payments by cheque. Mr. Babbar's evidence is that for his own business, Babbar Accounting, he has no records whatsoever of the operation of Babbar Accounting – his employees, payroll, business accounting or banking records. His explanation for this lack of records is that Jaspal Singh did his payroll and his taxes and had all his records. On top of the lack of records, Mr. Babbar appears to have no information about the current whereabouts of either Jaspal Singh or his supposed former business partner Baljinder Bhullar (except that he said Bhullar might be in Vancouver). I find this lack of records to be a fabrication, and I do not believe the defendant's evidence.

[220] Fourth, as I will explain in addressing the credibility of the Crown witnesses, for the most-part, I find the witnesses who were named in the ROEs as employees to be credible witnesses. These witnesses (in particular the women who said they paid the defendant for the ROEs) gave strikingly similar evidence of paying the defendant for ROEs so they could apply for EI benefits, even thought they had not worked for the employer named in the ROE. There is no evidence that this group of witnesses knew each other. I find their evidence to be credible, and taken as a whole, very powerful evidence of a pattern by the defendant. In the face of this evidence, the defendant's evidence that he never met these women, and he never took any money to prepare ROEs, and he simply prepared the ROEs on instructions from Jaspal Singh is not credible.

[221] Further, as I will explain, although I have some credibility concerns about aspects of the evidence of some of the business owners who testified, I accept their evidence that the defendant did accounting work for them. I also accept their evidence that the defendant tried to manage the Service Canada investigation by telling each of them not to speak to Service Canada, and that he would take care of things, and that he had hired a lawyer. Again, the number of witnesses who came forward and described the defendant as doing similar kinds of work for them – business accounting, and taxes, leads me to find that body of evidence to be credible, and to find that it cannot be explained by coincidence. I make the same finding with respect to the evidence of these witnesses that the defendant told them not to speak to Service Canada, and that he would take care of things, and that he had hired a lawyer. Rather, I find that I do not believe the defendant's evidence that he did not do accounting work for businesses, and I do not believe his evidence that he never told anyone not to cooperate with Service Canada or gave any advice in relation to the Service Canada investigation.

[222] In summary, for all of these reasons, I do not find the defendant to be a credible witness. I do not believe his evidence, and it does not leave me with a reasonable doubt.

[223] This finding does not end the analysis. I must still consider under the third branch of W.D. whether the prosecution case proves any of the counts beyond a reasonable doubt.

Findings with Respect to the Prosecution Evidence – Does the Prosecution Evidence Prove Some or All of the Counts Beyond a Reasonable Doubt?

[224] For reasons that I will explain, I find that the prosecution case proves some of the counts before the court beyond a reasonable doubt, but on other counts fails to rise to the level of proof beyond a reasonable doubt.

Pearson Dry Cleaning & Laundry Services Inc. Counts (Counts #6, #15, #19, #21, #26, #27, and #31)

[225] I find the evidence of Muhammad Mahmood on the issue of who was or was not employed by Pearson Dry Cleaning not to be reliable. Although Muhammad Mahmood was as a legal matter the owner of the business, it was clear from his evidence, and from the evidence of Khalid Mahmood, that Khalid ran the business. Muhammad was not involved in the day to day running of the business.

[226] For this reason, I do not accept any of Muhammad Mahmood's evidence about who did or did not work for Pearson Dry Cleaning. I find that he was not in a position to know. However, I do accept Muhammad Mahmood's evidence that he never told the defendant that the people named in the ROEs worked for Pearson (and indeed, ultimately, the defendant did not say in his evidence that Muhammad Mahmood or Khalid Mahmood had told him that any of the people named in the ROEs worked for Pearson).

[227] Given Muhammad Mahmood's lack of knowledge about the day to day running of Pearson Dry Cleaning, I find that the similar fact does not support his evidence or lead me to find that the similar fact evidence addresses my concerns about the reliability of his evidence.

[228] With respect to Khalid Mahmood, I have concerns about the credibility and reliability of aspects of his evidence. Some of my concerns are general and apply across counts; some are more specific.

[229] Khalid Mahmood admitted in cross-examination that various family members worked for Pearson Dry Cleaning and were paid under the table. He also admitted that in his initial interview with Service Canada he denied that these family members had ever worked for Pearson Dry Cleaning.

[230] This evidence raises concerns for me with respect to his credibility for two reasons. First, it is an admission that Khalid Mahmood lied to government investigators about whether certain individuals worked for Pearson Dry cleaning. This causes me some concern for the credibility of his testimony in court that the individuals named in the Pearson Dry Cleaning counts never worked for Pearson Dry Cleaning. Second, the fact that Khalid Mahmood admits that family members worked for Pearson Dry Cleaning but were paid under the table gives support to the defence theory that some employees of Pearson Dry Cleaning may have been paid under the table in order to avoid taxes, and to the theory that individuals named in the ROEs may, in fact, have worked for Pearson, but been paid off the books (which although raising tax problems, would not affect their eligibility for EI benefits). In particular, as I will address in due course, this is a concern for the counts where no individual was called as a witness at trial to testify that they never worked at Pearson Dry Cleaning.

[231] A further issues that causes me concern for the credibility of Khalid Mahmood's evidence is that I find it difficult to understand, on Khalid Mahmood's evidence, how the defendant could have obtained the blank ROEs used in the Pearson Dry Cleaning counts without the knowledge of either Muhammad or Khalid Mahmood. Khalid Mahmood testified that he never authorized Service Canada to give blank ROEs to the defendant. He testified that he probably got his son Muhammad to order the blank ROEs from Service Canada and had them sent to the business, and he (Khalid) gave them to the defendant. I note that this evidence was inconsistent with Muhammad Mahmood's evidence that he never ordered blank ROEs from Service Canada.

[232] As I noted above, the prosecution led no evidence of Service Canada records showing who was authorized to obtain blank ROEs for any of the businesses at issue. Nor did the prosecution lead evidence of who obtained each of the blank ROEs at issue (each of which has an individual, pre-printed serial number). Given Ms Martin's evidence that ROEs are not handed out willy-nilly, but are given in relation to specific numbers of people leaving employment, it is difficult to understand, on Khalid Mahmood's evidence, how the defendant could have obtained the blank ROEs used in the Pearson Dry Cleaning counts without the knowledge of either Khalid or Muhammad Mahmood.

[233] I also found Khalid Mahmood's evidence in relation to the number of employees of Pearson Dry Cleaning at various times, and who was and who was not an employee to be unreliable. He was less than certain about who his employees were at various times, and the number of employees the business had at various times. This raises real concerns about the reliability of his evidence that the individuals names in the Pearson ROEs were never employed by Pearson, because unlike some of the other businesses at issue in this case, Pearson had a larger number of employees (at times as many as 10 to 12 employees), and more changeover in the employees over time.

[234] In particular regarding counts #21 and #27, I have concerns about the reliability of Khalid Mahmood's evidence that neither Amandeep Kaur Tamber nor Amandeep Sidhu ever worked at Pearson Dry Cleaning. Mr. Mahmood initially denied Amandeep Kaur Tamber worked for Pearson. However, when he was asked about Amandeep Sidhu, he said that a woman named Amandeep did work for Pearson Dry Cleaning at some point, but he was not sure of her family name. After refreshing his memory from his statement to Service Canada, Mr. Mahmood said that Amandeep Sidhu did not work for Pearson Dry Cleaning. This was all in examination in chief. In cross-examination, Mr. Mahmood maintained that neither Ms Tamber nor Ms Sidhu worked for Pearson Dry Cleaning. He agreed that he had reviewed his statement prior to testifying. I found Mr. Mahmood's evidence in relation to having an employee with the first name Amandeep, but not recalling her last name, but being sure that neither Amandeep Kaur Tamber nor Amandeep Sidhu worked for him to be confused and inconsistent. In the absence of either Ms Tamber or Ms Sidhu being called to testify and say that they never worked at Pearson Dry Cleaning, given Khalid Mahmood's confusion and inconsistency over whether he had an employee named Amandeep, I am not prepared to find that the Crown has proven beyond a reasonable doubt that either Amandeep Tamber or Amandeep Sidhu did not work at Pearson Dry Cleaning.

[235] I have considered whether if Khalid Mahmood's evidence is considered in light of the similar fact evidence, it addresses my concerns about his credibility. For the most-part, I find that it does not. Although I find that the similar fact evidence has significant probative value with respect to the issues of the defendant's knowledge and his pattern of activities, I find that it does not have significant probative value on the discrete issue of whether particular individuals in fact worked at Pearson Dry Cleaning. To the extent that some of the Pearson Dry Cleaning counts are supported only by the documents, and the evidence of Muhammad and Khalid Mahmood, I find that the evidence is not sufficient to prove those counts. Basically, the areas that concern me about Khalid Mahmood's evidence, which I find that the similar fact evidence does not address for me, are on the issue of his assertions that various individuals were not employed by Pearson Dry Cleaning, and his assertions that he did not know anything about the ROEs at issue. However, I do accept, in light of the similar fact evidence, Khalid and Muhammad Mahmood's evidence that the defendant did accounting for Pearson Dry Cleaning.

[236] In general I found Amritpal Grewal (counts #15 and 31) to be a credible witness. I have some concerns about her evidence that initially she lied to the Service Canada investigators, which I will explain. But ultimately, I accept her explanation of why she did so.

[237] I find that Ms Grewal was consistent in her evidence both in chief and in cross-examination. Based on the record before me, she had no apparent motive to mislead in her evidence. I caution myself that no evidence of a motive to mislead is not necessarily the same as no motive to mislead, and that the defence does not have a burden to prove a motive to mislead on the part of a witness, but the lack of any evidence of a motive to mislead is a factor that I weigh.

[238] I have considered Ms Grewal's evidence that in her first interview with Service Canada investigators, she told them that she had worked at Pearson Dry Cleaning, provided the name "Khalid" as the owner-manager, and described the physical layout of Pearson Dry Cleaning. In her evidence, Ms Grewal testified that she was able to do this, because when Service Canada first contacted her, she contacted the defendant, and he told her to tell them these things. In her second interview with Service Canada investigators, she told them she had lied, and that she had not worked at Pearson Dry Cleaning. This lie by Ms Grewal to Service Canada investigators is of some concern to me. However, in the context of all of the evidence I accept Ms Grewal's explanation. In particular, I take into account the similar fact evidence, and the many other witnesses who testified that when they were contacted by Service Canada about the investigation, they spoke to the defendant, and the defendant tried to manage their response to the investigation.

[239] I have considered the defence argument that Ms Grewal may have been motivated to lie if she was being paid under the table in cash, in order to avoid problems with the Canada Revenue Agency for not paying taxes. The problem I see with this argument, apart from the fact that Ms Grewal denied it, is that it is not logical as a motive. The evidence of Ms Martin, the CRA investigator, was that the individuals who received EI benefits where Service Canada determined that the individual had not in fact worked for the company, and was not entitled to benefits, had to repay the benefits they obtained. Thus, the defence theory about being paid cash under the table and now denying working in order to avoid a tax problem suffers from the problem that it means that individuals like Ms Grewal, who on the defence theory did in fact work for a company she is now claiming she did not work for, were required to pay back EI benefits that they were entitled to (on the defence theory). I do not see how trading a tax problem for an EI benefits problem creates a motive for Ms Grewal to lie and say she did not work for a company, when (on the defence theory) in fact she did work.

[240] I have also considered the defence argument that I should find Ms Grewal not to be credible because the amount she claims she paid for the ROE ($3,000) is disproportionate to the amount of insurable earning claimed on the ROE. In effect, the defence argument is that she could not have obtained enough benefits to make it worthwhile to pay $3,000 for the ROE, because EI benefits are 55% of insurable earnings (see Employment Insurance Act, s. 14).

[241] I reject this argument for two reasons. First, the scheme of the Employment Insurance Act for calculating benefits is such that there is not a linear relationship between the total amount of insurance earnings listed in the ROE, and the amount of benefits an individual is entitled to.

[242] Sections 6 to 23 set out the basis for calculation of benefits. The summary that follows of how benefits are calculated is somewhat simplified, but is sufficient for purposes of dealing with this issue. Once the threshold for insurable hours worked is met by a claimant (s. 7), the claimant's weekly entitlement of benefits is 55% of their weekly insurable earnings. Weekly insurable earnings is calculated by taking the insurable earnings in the ROE, and dividing them by a specified number between 14 and 22, depending on the rate of unemployment in the region where the claimant lives (s. 14). The claimant is then eligible for that amount of weekly benefits for a certain number of weeks. The number of weeks benefits are payable can vary by region and other factors for regular benefits (ss. 9-13). However, length of benefits for maternity and parental leave do not vary. The combined length of benefits for pregnancy and parental leave is a total of 50 weeks of benefits (s. 12(3)(a) and (b)). The witnesses who testified that they paid the defendant in order to obtain EI benefits mostly testified that they were applying for maternity benefits. Thus, they would have been entitled to 50 weeks of benefits. Since the benefits are paid based on a calculation of the weekly benefit a person is entitled to, and then that weekly benefit is paid for the number of weeks a person is entitled to, in the case of combined maternity and parental leave benefits which last 50 weeks, the benefits payable could well exceed 55% of the insurable earnings listed on the ROE (and in any event certainly could exceed the $3,000 that Ms Grewal testified she paid for the ROE).

[243] Second, as long as Ms Grewal would be getting some amount of benefits in excess of $3,000 from the EI benefits, it would have been worth her while to pay the defendant for the ROE. In effect, what her evidence describes is a kick-back scheme, where the actions the defendant would allow her to get benefits she was not otherwise entitled to, and for this reason, she was prepared to pay the defendant a significant sum of money to get those benefits. Thus, I do not find anything incredible about the amount Ms Grewal says she paid the defendant for the ROE.

[244] Further, I find the similar fact evidence to be very supportive of Ms Grewal's evidence. The evidence of the other women who testified that they paid the defendant for an ROE in order to obtain EI benefits when they had not worked for the company named in the ROE is strikingly similar to Ms Grewal's evidence. There is no evidence that any of these women know each other or had any opportunity to collude.

[245] For these reasons, I find Ms Grewal to be a credible witness.

[246] I find that the prosecution has proven counts 15 and 31 in relation to Amritpal Grewal beyond a reasonable doubt.

[247] I find that Mandeep Kaur Baidwan (previously Mandeep Kaur Chowhan) (count #19) was a credible witness. She was consistent in her evidence both in chief and in cross-examination. Based on the record before me, she had no apparent motive to mislead in her evidence. I caution myself that no evidence of a motive to mislead is not necessarily the same as no motive to mislead, and that the defence does not have a burden to prove a motive to mislead on the part of a witness, but the lack of any evidence of a motive to mislead is a factor that I weigh.

[248] I have considered the defence argument that Ms Baidwan may have been motivated to lie if she was being paid under the table in cash, in order to avoid problems with the Canada Revenue Agency for not paying taxes. The problem I see with this argument, apart from the fact that Ms Baidwan denied it, is that it is not logical as a motive. The evidence of Ms Martin, the CRA investigator, was that the individuals who received EI benefits where Service Canada determined that the individual had not in fact worked for the company, and was not entitled to benefits, had to repay the benefits they obtained. Thus, the defence theory about being paid cash under the table and now denying working in order to avoid a tax problem suffers from the problem that it means that individuals like Ms Baidwan, who on the defence theory did in fact work for a company she is now claiming she did not work for, were required to pay back EI benefits that they were entitled to (on the defence theory). I do not see how trading a tax problem for an EI benefits problem creates a motive for Ms Baidwan to lie and say she did not work for a company, when (on the defence theory) in fact she did work.

[249] Further, I find the similar fact evidence to be very supportive of Ms Baidwan's evidence. The evidence of the other women who testified that they paid the defendant for an ROE in order to obtain EI benefits when they had not worked for the company named in the ROE is strikingly similar to Ms Baidwan's evidence. There is no evidence that any of these women know each other or had any opportunity to collude.

[250] With respect to Ms Baidwan's evidence about the defendant's involvement in her obtaining maternity benefits and the preparation of the ROE, I instruct myself not to consider it, as it was clearly hearsay. It became clear in cross-examination that Ms Baidwan's evidence about her dealing with the defendant was hearsay, because her husband dealt with him. However, her evidence that she never worked for Pearson Dry Cleaning was not hearsay. In light of the similar fact evidence, and the defendant's admission that he prepared the ROEs, I find that the Crown has proven count #16 beyond a reasonable doubt.

[251] In light of these findings, I find that the prosecution has proven beyond a reasonable doubt the Pearson Dry Cleaning counts which are supported by the evidence of Amritpal Grewal and Mandeep Kaur Baidwan, counts #15, #31 and #19.

[252] I find that the counts that are not supported by the evidence of the person named as the employee in the ROE, counts #6, #21, #26, and #27, are not proven beyond a reasonable doubt.

Extreme Computing Inc. Counts (Counts #3, #4, #23, #24, and #25)

[253] As I have outlined, Mr. Dhawan's evidence was that he set up the business of Extreme Computing, but he never did any business and he never had any employees. However, three aspects of his evidence raise significant credibility problems with these central aspects of his evidence.

[254] First, Mr. Dhawan testified that he gave the defendant a large number of pre-signed cheques on his business accounts. If Extreme Computing was not doing any business, why would Mr. Dhawan do this? Mr. Dhawan had no explanation for this, other than that he did not understand accounting. Mr. Dhawan is college-educated. I do not accept this explanation.

[255] Second, Mr. Dhawan testified that the defendant ran all sorts of transactions through Extreme Computing's business account without Mr. Dhawan having any knowledge of this. Again, how could this happen, particularly if Extreme Computing was not doing any business, and so should not have had any transactions going through its business account? This it is not a situation where the business had many legitimate ongoing transactions through the accounts, and improper transactions might have been missed amid the legitimate ones. If the business was not operating at all, surely any improper transactions by the defendant would have been apparent.

[255] Third, Mr. Dhawan admitted that at one point representations were made to Human Resources Development Canada that Extreme Computing had three or four employees, in order to assist a friend of Mr. Dhawan's to apply for a work permit (to work at Extreme Computing). Mr. Dhawan testified that the defendant was involved in making these representations, which Mr. Dhawan said were false. But it was clear that Mr. Dhawan was aware of the representations at the time they were made.

[257] Whether, as Mr. Dhawan testified, this representation about having three or four employees was false, or whether it was true, it poses a problem for the prosecution case in relation to Mr. Dhawan's credibility. On Mr. Dhawan's version of events, he lied to Canadian government officials about whether his business had any employees. Thus, he was prepared to lie to government officials about the issue of whether his business had employees – an issue very similar to what is at issue in this case. Alternately, if the representation made to HRSDC was true, then it is evidence that Extreme Computing did have employees. It raises concerns for me for the credibility of Mr. Dhawan's assertion to the court in this case that his business never had any employees. This is particularly so because none of the counts involving Extreme Computing Inc. are supported by evidence from the individuals named in the ROEs at issue (i.e., no witnesses were called saying that they never worked for Extreme Computing Inc.)

[258] Mr. Dhawan's evidence, and my finding that I do not believe his evidence, have an impact on my treatment of Exhibit #5. Exhibit #5 on its face appears to be a business card for the defendant's business, Babbar Accounting. Exhibit #5 lists various accounting services performed by Babbar Accounting, and includes "Assistance for Applying…. Employment Insurance Benefits". Taken at face value, Exhibit #5 would be very probative evidence for the prosecution, because it supports that the defendant was holding himself out as doing a variety of types of accounting work, and in particular of assisting people with EI applications. However, the source of Exhibit #5 is such that given my concerns about Mr. Dhawan's credibility, I am not persuaded that Exhibit #5 is reliable evidence.

[259] Exhibit #5 was produced by Mr. Dhawan during his examination in chief. He had never previously disclosed it to the Service Canada Investigators or to prosecution counsel. He testified that he had just found it in his wallet when he was outside. Mr. Dhawan testified that the defendant had given him this business card in 2010. No other witness who testified to dealing with the defendant said he ever gave them a business card. No other witness who testified to dealing with the defendant was asked if they had ever seen a business card for the defendant like Exhibit #5. I appreciate that a number of prosecution witnesses had already testified before Mr. Dhawan testified and produced Exhibit #5. But four prosecution witnesses were called after Mr. Dhawan testified, and none were asked about Exhibit #5. In all of the circumstances, I am not persuaded that Exhibit #5 is reliable evidence.

[260] In light of my concerns about the credibility of Mr. Dhawan's evidence, and the fact that none of the Extreme Computing counts (counts # 3, #4, #23, #24, and #25) are supported by evidence from the individuals named as the employees in the ROEs at issue, I find that the prosecution has not proven the Extreme Computing counts beyond a reasonable doubt. My concerns with Mr. Dhawan's credibility are significant enough that even considering the similar fact evidence does not overcome them. Although I find that the similar fact evidence has significant probative value with respect to the issues of the defendant's knowledge and his pattern of activities, I find that it does not have significant probative value on the discrete issue of whether particular individuals in fact worked for Extreme Computing.

Fine Tech Computers Inc. Counts (Counts #9, #10, and #30)

[261] In considering the evidence of Prabhjot Bhullar, I have some concerns that she may not have been entirely forthright with the court on all of the issues before the court. I have some concern about her assertion that she did not have any discussions with the defendant about the ROE issued in the name of her husband, Sukhjeet Bhullar. As it was her husband's application, and related to her own business, I find it hard to believe she knew nothing about it. Also, her evidence is inconsistent with her husband's evidence that she ordered the ROE from Service Canada that the defendant prepared for him. I also had some concerns about her evidence in cross-examination seeking to suggest her guilty plea to the offence of failing to respond to the Service Canada document order was not informed. These concerns lead me to find that Ms Bhullar is minimizing in her evidence her own knowledge of the defendant's activities in relation to ROEs related to Finetech Computers.

[262] However, in considering the central issue related to count #10, relating to her husband's EI application, I accept her evidence that the defendant acted as her and her husband's accountant and accountant for the business. This evidence is supported by the similar fact evidence that the defendant acted as an accountant for various businesses. I also accept her evidence that the defendant knew her and her husband, and knew they were married. On the evidence, I cannot see any motive for Ms Bhullar to lie about these particular issues. Further, based on my acceptance of Ms Bhullar's evidence that the defendant did her and her husband's taxes, I accept that the defendant must have known that they were married, as a spouse is indicated on a personal tax return if a person is married.

[263] Sukhjeet Bhullar testified only in relation the count involving the ROE for his own EI application. I found him to be a credible witness. I have considered the fact that he admitted in his evidence that when he applied for EI benefits, he lied on the application in answering "no" to the question of whether he was related by blood or marriage to any of his employers. This is discreditable conduct on Mr. Bhullar's part.

[264] But I accept Mr. Bhullar's evidence that the defendant did accounting work for Mr. Bhullar, his wife and Finetech Computers, and his evidence that the defendant knew Mr. Bhullar was married to Prabhjot Bhullar. I can see no motive for Mr. Bhullar to mislead the court on these particular issues. And as I have found with respect to Ms Bhullar's evidence, on the issue of Mr. Babbar doing accounting work for Finetech, this is supported by the similar fact evidence that he did accounting work for a number of businesses. And, given my finding that the defendant was doing accounting and taxes for Finetech and for the Bhullar's, I find credible Mr. Bhullar's evidence that the defendant knew they were married.

[265] I note that the legal theory of liability for count #10 is different than for the other ROE counts. The prosecution accepts that Sukhjeet Bhullar did work for Finetech Computers. However, the prosecution takes the position that the statement in Sukhjeet Bhullar's ROE that he worked a certain number of "insurable hours" and had a certain number of "insurable earnings" is a misleading statement, because as a matter of law, work done for an employer who is not at arm's length is not "insurable employment".

[266] Section 5(1) of the Employment Insurance Act defines "insurable employment". Section 5(2) creates various exclusions from the definition of "insurable employment". One of the exclusions is s. 5(2)(i), which states that: "Insurable employment does not include employment if the employer and employee are not dealing with each other at arm's length". Section 5(3)(a) provides that whether or not two individuals are dealing with each other at arm's length shall be determined in accordance with the Income Tax Act. Sections 251(1)(a) and 251(2)(a) of the Income Tax Act provide that, inter alia, individuals connected by marriage are deemed not to deal with each other at arm's length.

[267] Thus, if the defendant knew that Sukhjeet Bhullar was married to Prabhjot Bhullar, when he prepared the ROE stating that Sukhjeet Bhullar had "insurable hours" and "insurable earnings" at Finetech Computers, this was a misleading statement, because work done for a non-arm's length employer cannot as a matter of law be "insurable employment" under the Act.

[268] Based on my findings of fact that I find Prabhjot and Sukhjeet Bhullar to be credible witnesses on the issues that the defendant did accounting and tax work for them, that the defendant knew they were married, and that Sukhjeet Bhullar was credible in testifying that the defendant prepared the ROE in his name, I find that the Crown has proven count #10 beyond a reasonable doubt.

[269] I note that neither counsel asked me to consider the possible applicability of s. 5(3)(b) of the Employment Insurance Act to the question of whether Sukhjeet Bhullar's work at Finetech Computers constituted "insurable employment". There is no factual basis in the record before me to consider the application of that section (such as the remuneration and terms and conditions of Mr. Bhullar's employment).

[270] I find that Nadia Wadood (counts #9 and #30) was a credible witness. She was consistent in her evidence both in chief and in cross-examination. Based on the record before me, she had no apparent motive to mislead in her evidence. I caution myself that no evidence of a motive to mislead is not necessarily the same as no motive to mislead, and that the defence does not have a burden to prove a motive to mislead on the part of a witness, but the lack of any evidence of a motive to mislead is a factor that I weigh.

[271] I have considered the defence argument that Ms Wadood may have been motivated to lie if she was being paid under the table in cash, in order to avoid problems with the Canada Revenue Agency for not paying taxes. The problem I see with this argument, apart from the fact that Ms Wadood denied it, is that it is not logical as a motive. The evidence of Ms Martin, the CRA investigator, was that the individuals who received EI benefits where Service Canada determined that the individual had not in fact worked for the company, and was not entitled to benefits, had to repay the benefits they obtained. Thus, the defence theory about being paid cash under the table and now denying working in order to avoid a tax problem suffers from the problem that it means that individuals like Ms Wadood, who on the defence theory did in fact work for a company she is now claiming she did not work for, were required to pay back EI benefits that they were entitled to (on the defence theory). I do not see how trading a tax problem for an EI benefits problem creates a motive for Ms Wadood to lie and say she did not work for a company, when (on the defence theory) in fact she did work.

[272] I have also considered the defence argument that I should find Ms Wadood not to be credible because the amount she claims she paid for the ROE ($3,700) is disproportionate to the amount of insurable earning claimed on the ROE. In effect, the defence argument is that she could not have obtained enough benefits to make it worthwhile to pay $3,700 for the ROE. I reject this argument for the same reasons set out above at paragraphs 241-243 in relation to Ms Grewal.

[273] Further, I find the similar fact evidence to be very supportive of Ms Wadood's evidence. The evidence of the other women who testified that they paid the defendant for an ROE in order to obtain EI benefits when they had not worked for the company named in the ROE is strikingly similar to Ms Wadood's evidence. There is no evidence that any of these women know each other or had any opportunity to collude.

[274] I find Ms Wadood to be a credible witness. I believe her evidence. I have expressed that I have some concerns about the credibility of Prabhjot Bhullar on some issues. In relation to the counts involving Nadia Wadood (counts #9 and #30), I find that Ms Wadood's evidence, supported by the documentary evidence, and the similar fact evidence is sufficient to prove the counts beyond a reasonable doubt, without the evidence of Prabhjot Bhullar.

[275] I find that the prosecution has proven counts #9, #10, and #30 beyond a reasonable doubt.

Fountain Plumbing Inc. Count (Count #5)

[276] I find that Satwinder Kaur was a credible witness. She was consistent in her evidence. Although Ms Kaur agreed in cross-examination that when she cooperated with the Service Canada investigation, it did cross her mind that by cooperating Service Canada might go softer on her and her husband, ultimately her husband did repay the EI benefits he had obtained.

[277] I further find that Ms Kaur's evidence is supported by the similar fact evidence. Her husband's application fits the pattern of the defendant taking money in return for providing an ROE to an individual who had not in fact worked at a business (see summary at paragraph 90 above, where Ms Kaur testified that the defendant told her and her husband that her husband could apply for EI benefits if they gave the defendant some cheques in payment as "tax").

[278] I find that her evidence is also supported by two aspects of the ROE in her husband's name (Exhibit #1, tab 13). First, the address listed as the home address for Iqbal Kachyara (Ms Kaur's husband) is the defendant's home address. Second, in box 16, although the contact person is listed as "Satwinder Kaur", the phone number listed is the number that the defendant admitted was his phone number.

[279] I find that the prosecution has proven count #5 beyond a reasonable doubt.

Holland Truck Training Centre Count (Count #1)

[280] I find that Amarjit Chowhan was a credible witness. I believe his evidence. He was consistent in his evidence. I accept his evidence that Mandeep Kaur Baidwan (previously Mandeep Kaur Chohan) did not work at Holland Truck Training Centre. I accept his evidence that the defendant did accounting and tax work for him.

[281] I have already addressed my findings with respect to Mandeep Kaur Baidwan's credibility in relation to count #19 and Pearson Dry Cleaning above. I find Ms Baidwan to be a credible witness for the reasons explained above. I accept as true her evidence that she did not work at Holland Truck Training Centre.

[282] With respect to Ms Baidwan's evidence about the defendant's involvement in her obtaining maternity benefits and the preparation of the ROE, I instruct myself not to consider it, as it was clearly hearsay. It became clear in cross-examination that Ms Baidwan's evidence about her dealing with the defendant was hearsay, because her husband dealt with him. However, her evidence that she never worked for Holland Truck Training Centre was not hearsay. In light of the similar fact evidence, and the defendant's admission that he prepared the ROEs, and Mr. Chowhan's evidence, I find that the Crown has proven count #1 beyond a reasonable doubt.

Evans Biotech Inc. Count (Count #16)

[283] Varinder Sharma was generally consistent in his evidence. However, there are aspects of his evidence that raise some concerns for me with respect to his credibility. As I have noted above, Mr. Sharma was one of the witnesses who was interviewed in a group by Service Canada investigators. He was interviewed together with Ujjal Dhawan (who testified in relation to the Extreme Computing counts), and Ranjit Dhawan (his business partner, and also the father of Ujjal Dhawan, who was not called as a witness at trial). The fact of Mr. Sharma being interviewed with other witnesses causes me some concern for the reliability of his evidence.

[284] Further, I find that Mr. Sharma was not entirely forthright with the court about who worked at Evans Biotech. In his examination in chief, Mr. Sharma testified that he was the only employee of Evans Biotech., and that he had never had any employees. He made no mention of anyone else involved in the business. In cross-examination, he agreed that he also worked with Ranjit Dhawan. He testified that Mr. Dhawan was not an employee, but was his business partner. However, he agreed that he was aware of and assisted in his partner, Ranjit Dhawan, applying for EI benefits whenever there was a shortage of work. Although this was not charged as a count before the court, if as Mr. Sharma testified, Mr. Dhawan was a partner in Evans Biotech and not an employee, this was not a valid EI application. Alternately, it raises the question of whether Ranjit Dhawan was an employee, and whether Mr. Sharma's evidence in examination in chief that he had no employees was truthful.

[285] The individual named in the ROE for count #16, Aruna Bhatia (see Exhibit #1, tab 2), was not called as a witness at trial. This is of concern to me given that some of my concerns about Mr. Sharma's credibility relate to the issue of who worked at Evans Biotech.

[286] In the absence of evidence from the individual named as the employee in the ROE for count #16, given my concerns about the credibility of Mr. Sharma, I am not persuaded beyond a reasonable doubt that this count has been proven. I have considered the similar fact evidence in coming to this conclusion. Although I find that the similar fact evidence has significant probative value with respect to the issues of the defendant's knowledge and his pattern of activities, I find that it does not have significant probative value on the discrete issue of whether particular individuals in fact worked at Evans Biotech.

Shiva Indian Cuisine Count (Count #28)

[287] I find that Ramandeep Kaur Narwal (previously Ramandeep Bains) (count #28) was a credible witness. She was generally, consistent in her evidence both in chief and in cross-examination. I accept that there was some inconsistency on whether she could recall if she paid the defendant the $3,000 in one installment or in two payments. Ms Narwal was clearer on this issue after she refreshed her memory from her statement in re-examination. In any event, I find that it is an inconsistency based on the passage of time, and is not a significant issue (one payment versus two payments). She was consistent about the total amount that she paid the defendant ($3,000).

[288] Further, based on the record before me, Ms Narwal had no apparent motive to mislead in her evidence. I caution myself that no evidence of a motive to mislead is not necessarily the same as no motive to mislead, and that the defence does not have a burden to prove a motive to mislead on the part of a witness, but the lack of any evidence of a motive to mislead is a factor that I weigh.

[289] I have considered the defence argument that Ms Narwal may have been motivated to lie if she was being paid under the table in cash, in order to avoid problems with the Canada Revenue Agency for not paying taxes. The problem I see with this argument, apart from the fact that Ms Narwal denied it, is that it is not logical as a motive. The evidence of Ms Martin, the CRA investigator, was that the individuals who received EI benefits where Service Canada determined that the individual had not in fact worked for the company, and was not entitled to benefits, had to repay the benefits they obtained. Thus, the defence theory about being paid cash under the table and now denying working in order to avoid a tax problem suffers from the problem that it means that individuals like Ms Narwal, who on the defence theory did in fact work for a company she is now claiming she did not work for, were required to pay back EI benefits that they were entitled to (on the defence theory). I do not see how trading a tax problem for an EI benefits problem creates a motive for Ms Narwal to lie and say she did not work for a company, when (on the defence theory) in fact she did work.

[290] I have also considered the defence argument that I should find Ms Narwal not to be credible because the amount she claims she paid for the ROE ($3,000) is disproportionate to the amount of insurable earning claimed on the ROE. In effect, the defence argument is that she could not have obtained enough benefits to make it worthwhile to pay $3,000 for the ROE. I reject this argument for the same reasons set out above at paragraphs 241-243 regarding Ms Grewal

[291] Further, I find the similar fact evidence to be very supportive of Ms Narwal's evidence. The evidence of the other women who testified that they paid the defendant for an ROE in order to obtain EI benefits when they had not worked for the company named in the ROE is strikingly similar to Ms Narwal's. There is no evidence that any of these women know each other or had any opportunity to collude.

[292] I do have some concerns about Ms Narwal's evidence that at the time she obtained the EI maternity benefits, she did not think there was anything inappropriate in her obtaining the benefits. It is difficult to accept her evidence that not having worked, she believed she was legally entitled to EI maternity benefits. I tend to think she is downplaying what she knew at the time. It seems more likely that she at least had reason to doubt that she was entitled to benefits at the time she applied, but chose to ignore those doubts and proceed anyhow. However, in the context of the evidence as a whole, I find that the fact that Ms Narwal may have had some level of knowledge that what she was doing was not proper at the time does not lead me to find she is not a credible witness. The prosecution does not choose its witnesses.

[293] I believe Ms Narwal's evidence. I find that the prosecution has proven count #28 beyond a reasonable doubt.

Babbar Accounting Inc. Count (Count #2)

[294] I find that Rupinder Kaur Chohan (count #2) was a credible witness. She was consistent in her evidence both in chief and in cross-examination. Based on the record before me, she had no apparent motive to mislead in her evidence. I caution myself that no evidence of a motive to mislead is not necessarily the same as no motive to mislead, and that the defence does not have a burden to prove a motive to mislead on the part of a witness, but the lack of any evidence of a motive to mislead is a factor that I weigh.

[295] I have considered the defence argument that Ms Chohan may have been motivated to lie if she was being paid under the table in cash, in order to avoid problems with the Canada Revenue Agency for not paying taxes. The problem I see with this argument, apart from the fact that Ms Chohan denied it, is that it is not logical as a motive. The evidence of Ms Martin, the CRA investigator, was that the individuals who received EI benefits where Service Canada determined that the individual had not in fact worked for the company, and was not entitled to benefits, had to repay the benefits they obtained. Ms Chohan herself testified that she repaid the money she obtained in benefits. Thus, the defence theory about being paid cash under the table and now denying working in order to avoid a tax problem suffers from the problem that it means that individuals like Ms Chohan, who on the defence theory did in fact work for a company she is now claiming she did not work for, were required to pay back EI benefits that they were entitled to (on the defence theory). I do not see how trading a tax problem for an EI benefits problem creates a motive for Ms Chohan to lie and say she did not work for a company, when (on the defence theory) in fact she did work.

[296] I have also considered the defence argument that I should find Ms Chohan not to be credible because the amount she claims she paid for the ROE ($2,400) is disproportionate to the amount of insurable earning claimed on the ROE. In effect, the defence argument is that she could not have obtained enough benefits to make it worthwhile to pay $2,400 for the ROE. I reject this argument for the reasons set out above at paragraphs241-243 with respect to Ms Grewal.

[297] Further, I find the similar fact evidence to be very supportive of Ms Chohan's evidence. The evidence of the other women who testified that they paid the defendant for an ROE in order to obtain EI benefits when they had not worked for the company named in the ROE is strikingly similar to Ms Chohan's evidence. There is no evidence that any of these women know each other or had any opportunity to collude.

[298] I find Ms Chohan to be a credible witness. I find that the prosecution has proven count #2 beyond a reasonable doubt.

Conclusion

[299] I find Mr. Babbar guilty of counts #1, #2, #5, #9, #10, #15, #19, #28, #30, #31.

[300] I find Mr. Babbar not guilty of counts #3, #4, #6, #16, #21, #23, #24, #25, #26, #27. Those counts are dismissed.

Released: December 13, 2017

Signed: Justice J.M. Copeland