ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1210000044-00AP
DATE: 20130115
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABEL DA SILVA
Respondent
Derek Ferris, Tamara Center, for the Ontario Securities Commission
Jordana H. Goldlist for the Respondent
HEARD: December 19, 2012
MCWATT J.
REASONS FOR JUDGMENT
[1] The Ontario Securites Commission appeals the sentence imposed by Madam Justice S. Ray on Abel Da Silva in the Ontario Court of Justice on March 30, 2012 with Reasons for Sentence released May 4, 2012.
[2] The respondent pleaded guilty to one count of trading securities of Moncasa Capital Corporation while he was not registered to trade in them pursuant to sections 25(1)(a) and s. 122(1)(c) of the Securities Act, R.S.O. 1990, c. S5; one count of trading in securities of Moncasa without having filed a preliminary prospectus as required by section 53(1) of the Securities Act and 3 counts of breaching three prohibition orders against trading in securities contrary to section 122(1)(c) of the Act.
[3] The Commission’s appeal relates only to the judge’s order that the 18 month sentence for these charges be served concurrent to a 27 month sentence Mr. Da Silva is currently serving for previous Security Act breaches related to the sale of securities of Shallow Oil and Gas Inc. The appellant requests an order that the 18 month sentence be served consecutively to the Shallow Oil sentence.
[4] I agree with the Crown’s request for a consecutive sentence on these convictions for the following reasons:
[5] On May 18, 2011, Justice J. Henkel of the Ontario Court of Justice sentenced the appellant after a trial for conduct related to running a boiler room selling securities of Shallow Oil to the public. The appellant was found guilty of fraud, unregistered trading, trading in securities without filing a prospectus, trading in securities while prohibited from doing so and making false statements to staff of the Commission. Reasons for Sentence were released on November 15, 2011.
[6] The Moncasa investigation began in 2010. In May, 2011, the Commission investigators learned that the appellant was working as a salesperson at Moncasa. The investigation continued until September 2011. It was not until December 20, 2011 that the appellant was charged with selling securities of Moncasa from a virtual office set up in Toronto.
[7] On February 22, 2012, the respondent pleaded guilty to the present charges while serving the sentence on the Shallow Oil charges. He was sentenced to nine months for selling the securities without registration, a consecutive sentence of nine months for selling the securities without having filed a prospectus and a further nine months, concurrent, for trading in securities while prohibited from doing so by three previous Commission orders.
[8] The principles governing any assessment of the fitness of a sentence on an appeal under s. 122(1)(b) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, are the same as those that govern appeals from sentence under the Criminal Code R. v. Cotton Felts Ltd., [1982 3695 (ON CA)](https://www.canlii.org/en/on/onca/doc/1982/1982canlii3695/1982canlii3695.html), [1982] O.J. No. 178 at paras [12-13].
[9] The appellant contends that the trial judge committed an error in law when she imposed a concurrent sentence to the one Mr. Da Silva was already serving. And, the Crown also maintains the sentence does not serve the goals of specific or general deterrence – but, in fact, creates an “inducement for persons to work in multiple boiler room” frauds and engage in multiple breaches of the Securities Act during the same period.
[10] Generally, consecutive sentences will be imposed for different convictions related to separate events committed at different times. The judge must also consider whether the consecutive sentence conforms to section 718.2(c) so that it is not unduly long or harsh and is proportionate to the gravity of the offence and the degree of responsibility of the offender pursuant to section 718.1 of the Criminal Code.
[11] The sentencing judge chose the lower end of the 18 to 24 month range requested by the Commission. This took into consideration the fact that the respondent had pleaded guilty (without expressing remorse for what he had done) and was 64 years old with substance abuse and medical issues. She considered his long criminal record and the gap from his last conviction in 1999 to his charges before Justice Kenkel and herself. She considered his role in the Shallow Oil charges for which he received the 27 months. The sentencing judge, however, accepted the defence proposition that a consecutive 18 month sentence, which would have Mr. Da Silva serve 45 months in total, was excessive, disproportionate and offended the totality principle.
[12] Her Honour failed to consider the following:
(1) The two securities were separate entities;
(2) Shallow Oil sales took place between September 2007 and February 2008. Moncasa sales took place between April 2008 and September 2008;
(3) Justice Kenkel found Shallow Oil was a fraud and that Mr. Da Silva made false statements to the Securities Commission. These were different from the Moncasa charges, although there were other charges before Justice Kenkel which were similar in nature to the Moncasa case;
(4) the Shallow Oil fraud took place in Markham, Ontario with a Toronto business receiving documents. The Moncasa offences took place in Toronto;
(5) the Shallow Oil investigation took place prior to June 2008. The Moncasa investigation took place in 2010 and ended in September 2011 with Mr. Da Silva identified as a salesman in the offences in May, 2011;
(6) the victims of each scheme were different;
(7) the amounts of money raised were different and Mr. Da Silva’s roles in the two schemes were different.
[13] For all these reasons, the sentences in this case should have been consecutive to the Shallow Oil sentence. The fact that the respondent breached three separate prohibition orders starting in 2006 is reason enough to find the concurrent sentence unfit.
[14] The respondent is not new to the criminal justice system. In spite of the gap in his record, he has shown a pattern of undeterred behavior over the course of several years in the offences before Justice Kenkel and Justice Ray.
[15] A sentence of 45 months in total is not disproportionate to the gravity of the offences and his degree of responsibility for them.
[16] The appeal is granted. There shall be an order that the 18 month sentence be served consecutive to the 27 months already being served.
McWatt J.
Released: January 15, 2013
COURT FILE NO.: 1210000044-00AP
DATE: 20130115
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ABEL DA SILVA
Respondent
REASONS FOR JUDGMENT
McWatt J.
Released: January 15, 2013