COURT FILE NO.: 10-30000341-0000
DATE: 20121123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Crown
– and –
Serhad Caner
Defendant
Eadit Rokach, for the Crown
Daniel Kayfetz, for the Defendant
HEARD: Jun 11 – 13, 2012 and October 5, 2012
allen J. (Orally)
R E A S O N S F O R J U D G M E N T
OVERVIEW
[1] On January 27,2009, Serhad Caner was charged with uttering forged documents, namely a falsified letter of employment and paystubs as if they were genuine contrary to s. 368(1)(a) of the Criminal Code. He was further charged contrary to s. 380 (1)(a) of the Criminal Code that he attempted to defraud the Bank of Montreal (“the BMO”), by falsehood or other fraudulent means of monies valued at more than $5,000.
[2] The Crown called as a witness Muhkta Saha who Mr. Caner is alleged to have attempted to assist in obtaining a loan from a branch of the BMO. The Crown also called Banish Tahir, the loan manager from the BMO and Officer David Gaudet, an officer with the fraud squad of the Toronto Police Services, the officer in charge of the investigation.
[3] Mr. Caner called a defence. He testified himself and called Mahmoud Munir, who at some point which is unclear, was an owner of Globex Canada, the company whose name appears on the employment letter and two bank stubs.
THE ISSUE AND RESULT
[4] There is no dispute that Ms. Saha was ever employed at Globex or that she went to the BMO with Mr. Caner on January 27, 2009 to apply for a loan. The issue is whether the Crown has proved beyond a reasonable doubt that Mr. Caner uttered the false employment letter and cheque stubs and attempted to obtain a loan from the BMO by fraudulent means. I find the Crown has failed to meet that burden.
FACTUAL BACKGROUND
Facts not in Dispute
[5] The following facts are not in dispute.
[6] Ms. Saha is married with children. At the relevant time, she was employed by a child care agency earning $40,000 per year. She has never been employed by Globex in any capacity.
[7] Mr. Caner, a graduate in economics from University of Toronto, is self employed and operates various businesses that provide services principally to the Turkish Muslim community. He testified he provides translation and a credit support for Turkish people, many of whom are new immigrants and refugees seeking to access various services such as banking and cheque cashing services. He translates and explains the process at loan application appointments and assists clients to obtain the appropriate documentation for a loan application.
[8] On January 27, 2009, Mr. Caner and Ms. Saha attended a McCowan Rd. branch of the BMO for a pre-arranged appointment with Ms. Tahir to seek approval for a loan. Mr. Caner had had previous dealings with Ms. Tahir when she was a loan manager with CIBC. In the past he brought a number of clients to Ms. Tahir from the Turkish Muslim community. Mr. Caner unexpectedly encountered Ms. Tahir at the BMO branch in January 2009 where she was then employed and in training. Ms. Tahir gave him her business card and invited him to re-establish their business relationship.
[9] For several years, Mr. Caner had been a friend of Ms. Saha’s husband and learned that Ms. Saha needed a bank loan. He agreed to assist Ms. Saha through his connection with Ms. Tahir at the BMO. Mr. Caner spoke to Ms. Tahir on a few occasions about obtaining a loan for Ms. Saha. An appointment was set for January 27, 2009 for Mr. Caner to introduce Ms. Saha to Ms. Tahir and make the loan arrangements. The loan was approved for $25,000.
[10] At the appointment, Ms. Tahir was presented with the Globex employment letter and the two bank stubs. After about 20 minutes with Mr. Caner and Ms. Saha, Ms. Tahir excused herself and left her office saying she was going to get photocopies. Ms. Tahir went to consult with her manager about the employment letter and bank stubs. A call was made to the telephone number on the Globex letterhead. The bank became suspicious the documents were fraudulent and called the police.
[11] Both Mr. Caner and Ms. Saha were arrested. Charges were eventually withdrawn against Ms. Saha.
The Crown’s Evidence
[12] Ms. Saha admits attempting to obtain a loan from the BMO. However, her evidence is that she was an unwitting participant in Mr. Caner’s attempt to assist her to obtain a loan by fraudulent means. I found a number of credibility problems with Ms. Saha’s evidence.
[13] Ms. Saha testified that a few days before the appointment with Ms. Tahir, Mr. Caner came to her house with a loan application and asked her to sign it. She said she did not know whether the application was already completed or not. She said she simply gave him one credit card number and signed the application without reviewing it.
[14] There is no evidence of an application form signed by Ms. Saha in the days before the January 27th appointment. Both Mr. Caner and Ms. Tahir contradicted Ms. Saha’s evidence. Mr. Caner testified he did not take Ms. Saha an application for her signature. Ms. Tahir testified Mr. Caner had requested an application but she refused.
[15] Ms. Saha attempted to present herself as unsophisticated in the world of banking. In fact, her evidence was that she was afraid to go alone to a bank for a loan because of her lack of experience. She had to rely on Mr. Caner because he had experience and a contact at the bank.
[16] Ms. Saha’s evidence about signing an application without reviewing it seems at odds with evidence defence counsel turned up on cross-examination. Ms. Saha had considerable experience with banking, obtaining credit and mortgages. At the relevant time, she was the sole title holder of two houses, a rental property she purchased in 2003 and the family home she acquired in 2007. She rents the rental property to several tenants and rents to tenants in her family home. Ms. Saha manages the properties, collects the rents, pays bills, conducts credit checks on tenants with Equifax and does employment verifications.
[17] It seems unlikely that Ms. Saha with her long standing banking experience involving lines of credit and mortgages would blindly sign a loan application without any curiosity about what she was signing.
[18] There is also the matter of a telephone generated loan application. In evidence is a computer printout of an application for a loan made over the telephone sometime before the appointment on January 27th. Ms. Saha denies making the call to complete that application.
[19] The application contains considerable personal and financial information on Ms. Saha. It contains her name, date of birth and contact information. Binish Tahir’s name is indicated as a reference. The form details Ms. Saha’s liabilities providing credit card and line of credit limits, monthly payments, maximum payments and balances. It also contains as the reason for seeking the loan, the words: “To pay for her expenses, she’ll get married this summer.” Most notably, there is an entry that provides Ms. Saha’s employer as Globex Canada and her position as a marketing manager at a salary of $65,000 per year.
[20] The Crown’s evidence through Ms. Saha suggests it was Mr. Caner who called the bank and made the application and provided the information on Ms. Saha’s behalf.
[21] Mr. Caner denied making the call pointing out he did not have Ms. Saha’s detailed financial information. Earlier I expressed doubt that Mr. Caner took a loan application to Ms. Saha’s home in the days before the appointment. Even in Ms. Saha’s version of that purported incident, she says she only gave Mr. Caner one credit card number. There is simply no evidence before the court that Mr. Caner had such details of Ms. Saha’s personal financial information as appear on the telephone generated loan application.
[22] Further, Ms. Tahir was asked about the BMO’s policy of allowing a third party to make a loan application over the phone for another person. Ms. Tahir indicated the bank would need authorization from the applicant. There is no evidence of Ms. Saha authorizing Mr. Caner to make the telephone loan application on her behalf. Mr. Caner’s name is nowhere mentioned on the computer printout.
[23] No doubt that application would have had to have been completed by someone with detailed knowledge of Ms. Saha’s financial circumstances. That same person would have also provided the information about Ms. Saha being employed at Globex. There is no evidence that Mr. Caner provided the information about Globex.
[24] Mr. Caner picked Ms. Saha up in his car on the day of the appointment. Mr. Caner testified that the purpose of him accompanying Ms. Saha was to introduce her to his contact, Ms. Tahir, and to assist her to understand the loan application process.
[25] Ms. Saha alleges it was Mr. Caner and not she who took the employment letter and cheque stubs to the appointment. She testified that Mr. Caner carried documents into the bank in a yellow envelop. Again suggesting a lack of sophistication, Ms. Saha denied knowing what was inside the envelope and testified that she did not look at or ask Mr. Caner about the contents despite knowing the contents pertained to her loan application. Ms. Saha said she was not aware of the fraudulent documents until the investigating officer showed them to her.
[26] Mr. Caner testified Ms. Saha brought the yellow envelope into his car and may have set it down. He said he might have picked it up and carried it into the bank. He could not recall whether he placed it on the desk in Ms. Tahir’s office and she picked it up or whether he handed it to her directly. However, he also denied knowing of the existence of the Globex letter and the paystubs and denied being aware of whom Ms. Saha’s employer was.
[27] Given Ms. Saha’s credibility problems, I am not prepared to find by her evidence that the Crown has proven Mr. Caner obtained the fraudulent Globex employment letter and pay stubs and presented them at the bank to Ms. Tahir.
[28] The Crown also attempted to raise suspicion about Mr. Caner through Ms. Tahir’s evidence about Mr. Caner’s use of his cell phone during the appointment. After a brief time in her office with Mr. Caner and Ms. Saha, Ms. Tahir left her office and went to her manager’s office.
[29] From there Ms. Tahir made a telephone call to the number on the Globex letterhead. Ms. Tahir testified that at the time that telephone call was made, she observed Mr. Caner outside her office with his cell phone in his hand and saw him answer his phone. She stated that as she saw him press a button on his phone, the call from the bank telephone was cut off. From this Ms. Tahir drew the conclusion and testified that the number on the Globex letterhead was Mr. Caner’s cell phone number because the termination of the bank call was simultaneous with what she thought was Mr. Caner pressing a button on his cell phone.
[30] This was a fraud investigation. I cannot imagine why the police would not have been able to obtain and produce Mr. Caner’s and the BMO’s phone records to establish this, but they did not. Beyond Ms. Tahir’s observation, the Crown has provided no proof that her observation was any more than the result of a coincidence. One could equally draw the conclusion that Mr. Caner coincidently ended an unrelated phone call on his cell phone at the same time as the bank’s call to Globex was cut off.
[31] Ms. Tahir testified about previous bank dealings with Mr. Caner that caused her to be suspicious. For instance, she spoke of Mr. Caner bringing a client to her when she was employed by CIBC. She said the client pretended not to speak English and as it turned out she could speak English and had been living in Canada for years. She testified that bank management decided she should have no more dealings with Mr. Caner. There was no allegation of or investigation for fraud in relation to that or other instances Ms. Tahir described at CIBC. In any event, Ms. Tahir took at least one further client of Mr. Caner at the BMO, Ms. Saha.
[32] Again, the Crown did not prove through Ms. Tahir’s evidence that Mr. Caner obtained the Globex letterhead and paystub and submitted them to the bank to defraud the bank of a loan for Ms. Saha.
[33] The Crown also called the fraud unit investigating police officer, Officer Gaudet, to give evidence about documents another police officer, not called as a witness, seized from Mr. Caner’s vehicle. Officer Gaudet gave second hand evidence identifying in the file a variety of documents including stationery with various styles of letterheads from the same company, blank bank counter cheques, loan applications, mortgage tracking sheets, insurance applications and a cell phone bill in Mr. Caner’s name.
[34] Those documents and their contents are what they are on their faces. They are not proof of fraud. Mr. Caner’s possession of those documents does not establish he uttered the Globex letterhead and paystubs. Officer Gaudet’s evidence did not assist the Crown in proving Mr. Caner’s guilt of fraud.
The Defence’s Evidence
[35] There were credibility issues with Mr. Caner’s evidence but I find the weaknesses in his testimony were not such that they assisted in establishing his guilt of uttering false documents for the purpose of defrauding the BMO.
[36] For instance, the Crown cross-examined Mr. Caner about his evidence that he had a relatively close relationship with Ms. Saha’s husband involving visits to the home and dinners with the family. On cross-examination, Mr. Caner nevertheless said he did not know the names of Ms. Saha’s children or how many children she and her husband had. Mr. Caner’s explanation that he did not have children so he never paid attention to Ms. Saha’s children was perplexing. But I find that although the relationship is not clear, this does not point to guilt of fraud.
[37] It became clear from Mr. Caner’s testimony that he is involved in unusual and multifaceted business enterprises. He testified he provides services principally to new immigrants in the Turkish Muslim community that involve language translation, assistance with obtaining lines of credit and opening bank accounts. He also testified on cross-examination that he was not personally involved in the construction business but assists Turkish construction workers to obtain loans through the credit he has established with Money Mart through a construction company he owns.
[38] Mr. Caner is clearly involved in some unusual types of businesses and his evidence in this area was somewhat confusing. But again, I find there is nothing in that evidence that proves or even suggests he obtained and presented the false documents to the BMO.
[39] During the week before the commencement of the trial, Mr. Caner surreptitiously recorded a face-to-face conversation with Mahmoud Munir, a close friend of Ms. Saha’s husband. A transcript of the recording was made an exhibit. As best I could discern, Mr. Caner was hoping to get Mr. Munir to admit on tape that he was the owner of Globex at the relevant time and that he was the source of the false Globex employment letter and cheque stubs. Mr. Caner far from accomplished his goal. But most important, neither did the Crown, on cross-examining Mr. Munir, succeed in establishing Mr. Caner’s connection to the false Globex employment letter and cheque stubs.
[40] Mr. Munir was evasive about when he was an owner of Globex. He seemed to say he was not the owner at the relevant time. The Crown did not produce evidence to establish when Mr. Munir may have owned Globex. There was talk back and forth on the recording between Mr. Caner and Mr. Munir mentioning a Globex employment letter, Ms. Saha and her husband and the BMO. But it is far from clear what conclusion the Court could reasonably draw from the discussion. The quality of the tape was poor with many inaudible portions. The train of the conversation was broken many times by interjections of unrelated discussions.
[41] I did not find Mr. Munir’s evidence, or the recording, of any use to either party. The Crown’s cross-examination of Mr. Caner and Mr. Munir did not assist the Crown in proving Mr. Caner’s guilt.
[42] Mr. Caner was also questioned about the file of documents the police seized from his vehicle on the day of the arrest. He admitted the documents were his. The Crown argues the documents are suspicious and cast doubt on Mr. Caner’s credibility in relation to his charges and point to his guilt of fraud. Again, as I found earlier, the documents in that file have absolutely no probative value in respect of the offences charged.
ANALYSIS
[43] Mr. Caner is charged under s. 368(a) of the Criminal Code which provides as follows:
- (1) Everyone commits an offence who, knowing or believing that a document is forged,
(a) uses, deals with or acts on it as if it were genuine;
[44] He is further charged under s. 380(1)(a) which states as follows:
380 (1) Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars;
[45] It is the duty of the Crown to prove beyond a reasonable doubt that an incident giving rise to a charge in fact occurred and that the accused was the person involved in the incident. An accused does not have to prove that the incident never happened. If the court has a reasonable doubt whether the incident alleged ever took place or that the accused committed the offence, it must find the accused not guilty.
[46] In this case, the Crown has to prove beyond a reasonable doubt that Mr. Caner violated s. 368(1)(a), that Mr. Caner knew or believed the employment letter and cheque stubs were forged and used them as if they were genuine. Under s. 380(1)(a), the Crown must prove beyond a reasonable doubt that Mr. Caner used fraudulent means to attempt to defraud the BMO of over $5,000.
[47] The Crown relied principally on the evidence of Ms. Saha and Ms. Tahir to establish Mr. Caner bears criminal responsibility for the offences. Mr. Caner, though not required to, offered a contrary account of the appointment with Ms. Tahir and the circumstances that led up to the appointment that pointed away from him using the false documents in an attempt to defraud the bank.
[48] In determining guilt when the accused presents evidence, the court will not decide whether something happened simply by comparing the Crown’s version of events with that of the defence and then choosing between the two versions. The court is required to look at all the evidence and decide whether it is satisfied beyond a reasonable doubt that Mr. Caner committed the acts that form the bases of the offences charged.
[49] The Supreme Court of Canada has developed guidelines to assist the trial court to assess the evidence in arriving at a decision [R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.)].
[50] If the court believes Mr. Caner’s evidence that he did not commit the offence charged, the court must find Mr. Caner not guilty. Even if the court does not believe Mr. Caner’s evidence, if it leaves the court with a reasonable doubt about his guilt of the offence charged, the court must find Mr. Caner not guilty of that offence. Even if Mr. Caner’s evidence does not leave the court with a reasonable doubt of his guilt of the offence, the court may convict him only if the rest of the evidence the court does accept proves his guilt beyond a reasonable doubt.
[51] For reasons set out earlier, I have some difficulty accepting the credibility of some of Mr. Caner’s evidence. But I had more reservation about the Crown’s witnesses’ credibility, particularly that of Ms. Saha, the Crown’s main witness. In the result, I am left with considerable doubt as to Mr. Caner’s guilt.
[52] I did not find Ms. Saha to be an honest and trustworthy witness. She attempted to give the court the impression she was an unwitting participant in Mr. Caner’s fraudulent banking scheme. She feigned a lack of sophistication with banking and financial matters when in fact the evidence is that she owned two properties and had considerable experience with banking and loans.
[53] More problematic still is the evidence about the telephone generated loan application that cited Globex as Ms. Saha’s employer and her position as a marketing manager. Ms. Saha’s evidence suggested Mr. Caner made the telephone application. For reasons outlined earlier, it is more reasonable to conclude Ms. Saha provided the information on the phone application including the information about being employed at Globex as a marketing manager.
[54] There is also Ms. Tahir’s evidence. She testified that Mr. Caner answered his cell phone and hung up at the same time the bank called the Globex number on the letter head. I did not accept that evidence. Ms. Tahir’s suspicion that this incident showed Mr. Caner’s involvement with the false Globex documents was unsubstantiated and went no distance in establishing Mr. Caner’s guilt.
[55] I spoke earlier of the lack of evidentiary value of the documents in the file the police seized from Mr. Caner’s vehicle.
[56] In the result, the Crown has failed to connect Mr. Caner to uttering the fraudulent documents and an attempt to defraud the bank. There is no evidence Mr. Caner knew of the existence of the fraudulent documents or that he knew such documents were in the envelope that was passed to Ms. Tahir.
[57] On the totality of the evidence, viewing Mr. Caner’s defence in the context of whether the Crown has met its burden, I find the evidence raises a reasonable doubt as to Mr. Caner’s guilt of the offences charged. The Crown has therefore failed to prove beyond a reasonable doubt that Mr. Caner is guilty.
VERDICT
[58] For the foregoing reasons, I am satisfied the Crown has failed to prove Serhad Caner’s guilt beyond a reasonable doubt on the two charges.
[59] I therefore find Serhad Caner not guilty on the two counts on the indictment and an acquittal will be entered accordingly.
Allen J.
Released: November 23, 2012
COURT FILE NO.: 10-30000341-0000
DATE: 20131123
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty The Queen
Crown
– and –
Serhad Caner
Defendant
REASONS FOR JUDGMENT
Allen J.
Released: November 23, 2012