ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-70000087

DATE: 2015/09/08

BETWEEN:

HER MAJESTY THE QUEEN

– and –

REMY BOGHOSSIAN, RAFFI EBREKDJIAN and SIVA SUTHAKARAN

Respondents

Roy Beresowsky, for the Crown

Gregory Lafontaine, for Remy Boghossian;

Walter Fox and Sayeh Hassan, Amicus Curiae for Raffi Ebrekdjian;

Barry A. Fox, for Siva Suthakaran

HEARD: May 4, 6, 11-14, 20-22, 25, 27, 2015

JUDGMENT

A.J. O’Marra J.

[1] The crime in this case involves the use of a fraudulent bank draft by its perpetrators to purchase gold and deprivation to the Royal Bank of Canada of $1,895,751 as a consequence.

[2] Remy Boghossian, Raffi Ebrekdjian and Siva Suthakaran are jointly charged with having defrauded the RBC of an amount in excess of $5,000 contrary to s. 380(1)(a) of the Criminal Code. Further, Remy Boghossian and Raffi Ebrekdjian are charged separately with having in their possession gold bars knowing that the property was obtained by the commission of an indictable offence contrary to s. 354(1) of the Criminal Code.

Overview

[3] Remy Boghossian is a corporate-commercial lawyer, a sole practitioner operating as Boghossian Legal Professional Corporation with his office located at 895 Don Mills Rd. Toronto. His law firm accounts are located at the RBC branch at 1090 Don Mills Rd. Raffi Ebrekdjian has been involved in the jewelry business, currency trading, as well as buying and selling gold and other precious metals for many years. He had a business address of 21 Dundas Square, Suite 617, Toronto. Siva Suthakaran was a mortgage broker in Toronto and owned a hotel in Belleville Ontario.

[4] On February 10, 2011, a stolen, then forged TD Canada Trust bank draft in the amount of $1,895,751 was deposited by Remy Boghossian into his law practice trust account at the Royal Bank of Canada branch at 1090 Don Mills Rd. Mr. Boghossian then directed the funds to be wired to purchase the equivalent value in gold from Kitco Metals Co. in Montreal on February 10 and 11, 2011. The 41 kilograms of Perth Mint gold bullion was purchased on behalf of a client, identified by Remy Boghossian as Omar Ali.

[5] On February 10, 2011, 22 kilograms of gold bullion valued at $990,000 was picked up at Kitco by Raffi Ebrekdjian, followed by a further 19 kilograms of gold valued at $890,000 picked up by Remy Boghossian the next day. The RBC discovered the fraud February 11, 2011after the second gold pick-up.

[6] The gold bars were minted at the Perth Mint in Australia. Most of the bars, those 10 ounces and under were stamped with a distinct mark of repeating images of kangaroos.

[7] During the time period the gold purchases were arranged through to the pick-up of the gold Boghossian, Ebrekdjian and Suthakaran were in continuing telephone contact with each other based on telephone records. The frequency of the calls and texts spiked markedly the day Boghossian presented the bogus TD bank draft to the RBC.

[8] Raffi Ebrekdjian, according to a Toronto jeweler, Arseni Danaciyan, came to him later in February with Perth Mint gold bars, rarely seen in Toronto for melting and mixing with other metals.

[9] Similarly, in mid-February, Garnet Marziliano, Raffi Ebrekdjian’s step-son presented Perth Mint bars to a gold vendor, Guardian International in Toronto.

[10] In late January, 2011 Siva Suthakaran was introduced to Boghossian by Ebrekdjian purportedly to structure an investment in his hotel business. In mid-February 2011 he was involved in arranging the sale of Perth Mint gold bars through a friend, Kanapathapillai to a person named Theba Thampapillai.

[11] The bank draft deposited in Boghossian’s trust account used to purchase the gold, a faxed verification of the bank draft obtained by Boghossian on February 9, 2011 from the TD Canada Trust branch that purportedly issued the bank draft, and another faxed verification sent to the RBC branch from TD Canada Trust on February 10, the day Boghossian presented the bank draft, were all falsified documents.

[12] The client Boghossian said he was acting for in purchasing the gold, Omar Ali, does not exist. The photocopies of identification documents for Omar Ali contained in Boghossian’s file were all forgeries.

Position of the Parties

i) The Crown

[13] The Crown’s theory is that Raffi Ebrekdjian, Remy Boghossian and Siva Suthakaran, worked together to negotiate the fraudulent bank draft used to purchase the gold bars and collaborated to arrange the pick-up and disposition of the gold.

[14] Ebrekdjian and Boghossian created a fictitious client, Omar Ali who purportedly provided the fraudulent bank draft to Boghossian. Boghossian used his law practice as a shield to provide deniability of any knowledge of illegal conduct with respect to the bank draft and gold purchase.

[15] Siva Suthakaran arranged with an unknown employee of the Toronto Dominion Canada Trust bank branch at 100 City Centre Drive, Mississauga to steal the bank draft and to intercept the faxed verification requests and send responding fake verifications by fax. Further, Suthakaran was involved in the sale of a portion of the gold after it was fraudulently obtained.

ii) Remy Boghossian

[16] The position of Mr. Boghossian, who testified on his own behalf, is that he was duped by Ebrekdjian and others. A man, unknown to him dropped into his office one day in late 2010 without an appointment and said he had been referred to him through a nearby real estate office. He identified himself as Omar Ali, a real estate developer and investor. He was in the midst of a divorce and a pending property transaction from which he anticipated receiving approximately $2 million he wanted to invest in gold. Although he was experienced in buying gold he wanted a lawyer to buy the gold so he could keep it from his wife.

[17] While the purchase of gold as a commercial transaction did not require the services of a lawyer, Boghossian agreed to do it.

[18] He made inquiries of gold selling companies in Toronto and Montreal as to the availability of approximately $2 million dollars of gold bullion. He provided documentation and made arrangements for two orders.

[19] On February 9, a person said to be Ali’s cousin dropped off a bank draft for $1,895,751 drawn on the TD Bank branch at 100 City Centre Dr. Mississauga. Because of some noted differences from other drafts he had received in his practice he called a banking friend who suggested he fax a verification request to the bank. He did so and received a faxed reply verifying that it had been issued by the TD bank. The next morning he presented the bank draft and the faxed verification he received to his bank, the RBC. His bank also requested and obtained by fax a verification authenticating the draft. The money was wired to the gold companies.

[20] He was not a knowing participant in the fraud. Indeed, he had been victimized. The defence argues that it was inevitable the RBC would debit Boghossian’s account on discovery of the fraud, which it did. While the RBC’s financial interests were placed at risk by him depositing the bogus bank draft to his trust account and subsequent transfer of funds, the RBC on discovering the fraud debited Boghossian’s account resulting in Boghossian owing RBC $1,895,751. In addition, the RBC commenced an action to recover its loss from him and others.

[21] The defence argued that the Crown has not presented a rational theory of guilt involving Remy Boghossian. He had no motive. He could not possibly have achieved any financial gain from the fraud with others, as any share of “the take” would be dwarfed by his financial liability to RBC for the full amount of the fraudulent draft. He would become immediately suspect in the alleged fraud because he deposited the draft into his account. He would be left with a huge financial loss and subject to police investigation and possible criminal liability.

iii) Raffi Ebrekdjian

[22] Mr. Raffi Ebrekdjian, who also testified on his own behalf, asserted it was Mr. Boghossian who planned and carried out the fraud with the help of Mr. Ebrekdjian’s stepson, Garnet Marziliano. They used Mr. Ebrekdjian to perpetrate their scheme and sought to implicate him in the fraud.

[23] Mr. Ebrekdjian acknowledged he picked up the first order of gold on February 10, 2011 but did so on the instructions of Mr. Boghossian who agreed to reduce an outstanding legal bill for him. He had retained Mr. Boghossian in 2006 to deal with several matters involving mortgages relating properties as part of the estate of his deceased wife, Maria Marziliano for which Ebrekdjian was trustee and executor. The estate owed Mr. Boghossian approximately $20,000 in legal fees. He claimed he agreed to pick up the gold February 10 on the understanding that Mr. Boghossian would reduce the legal bill for his work on his wife’s estate by $10,000.

[24] Mr. Boghossian testified that he did not ask Mr. Ebrekdjian to pick up the gold. He knew nothing of the arrangements because his client Ali said he would take care of it.

[25] Mr Ebrekdjian said he knew nothing of a person called Omar Ali. After he returned to Toronto with the gold, on Mr. Boghossian’s instructions he met an unidentified person who was in a white car in a parking lot near Boghossian’s office and turned over the gold. He did not ask for any identification or obtain any acknowledgement of receipt. No questions were asked - that was the way he did business in the past delivering gold.

[26] As for Mr. Danaciyan, the jeweler, who claimed Ebrekdjian brought Perth Mint gold bars to him to melt, he lied, possibly for a reward.

[27] The position of the defence is that there is insufficient evidence to prove beyond a reasonable doubt that Ebrekdjian knew or ought to have known that in picking up the gold he was involved in a fraud. The Crown`s case against Ebrekdjian is circumstantial. Inferences can be drawn “that point away from Mr Ebrekdjian and could include others and in particular Garnet Marziliano” being involved in the fraud.

iv) Siva Suthakaran

[28] The position of Siva Suthakaran is that the only relationship he had with Mr. Boghossian was as a potential client seeking his assistance as a corporate lawyer in relation to structuring an investment in his Belleville hotel. He had been introduced to Mr. Boghossian by Mr. Ebrekdjian only for that purpose.

[29] Counsel argued the Crown’s case against Mr. Suthakaran is entirely circumstantial. The theory that Mr. Suthakaran was the contact/handler of the unidentified inside person at the TD Canada bank branch at the material times is no more than conjecture and speculation. There is no evidence of his involvement with anyone in that branch. The increase in telephone calls and texts with Mr. Boghossian and Mr. Ebrekdjian between February 7 and 12, during the time of the fraudulent transaction is equally consistent with calls relating to the share purchase transaction being contemplated.

[30] Counsel for Suthakaran argued that his involvement with Mr. Kanapathapillai in February and the sale of Perth Mint gold bars is equally consistent with an innocent explanation that he was just helping to sell gold bars through a legitimate contact with connections to the gold market. Assisting with the sale of gold does not demonstrate prior knowledge of a plan to defraud the RBC.

The Evidence

[31] Let me begin by outlining the evidence relied on by the prosecution and defence.

i) Telephone and Cell Tower Records

[32] In addition to the direct evidence of the participation of Boghossian in the presentation of the fraudulent bank draft, Ebrekdjian’s involvement in the pick-up of the first half of the gold, Boghossian’s pick-up of the second half of gold bars on February 11, and Suthakaran’s involvement in the sale of gold bars much of the Crown’s case is based on the analysis of telephone calls and text records provided by Bell Canada, Rogers Communications and Telus Communications in reference to the telephones used by Boghossian, Ebrekdjian, ABC Inc. (Ali’s phone number as noted by Boghossian in his file February 8, 2011) and others such as Garnet Marziliano (Ebrekdjian’s stepson), Sean Gruszczynska and Jason Michaud, associates of Marziliano.

[33] In addition to an analysis of the telephone call/text records, the officer in charge of the investigation Det. Ruth Moran of the Financial Crimes Unit, Toronto Police Services conducted an analysis of the cell tower locations through which the various calls/texts were made which shows the approximate location of each caller’s telephone in relation to significant events and locations: the office of Remy Boghossian at 895 Don Mills Road, Toronto; the RBC branch which held his law firm accounts, 1090 Don Mills Road; the Toronto Dominion Bank, 100 City Centre Drive, Mississauga the bank from which the draft was drawn and fax verifications sent, and locations in Montreal relative to Kitco Metals Inc.

[34] The accused on the trial admitted through counsel that the telephone numbers identified with them and records analyzed were their telephones.

[35] From the day Mr. Boghossian started the process of opening an account with Kitco Metals Inc., January 25, 2011 there were numerous phone calls between Boghossian and Ebrekdjian and Suthakaran.

[36] There is a noticeable spike in the contacts between Ebrekdjian and Boghossian and Ebrekdjian and Suthakaran on the dates that correspond to the events leading up and during the fraud perpetrated on the RBC. The cell tower records indicate that at the time Boghossian went to the RBC branch February 10, Ebrekdjian and the ABC/Ali phone was nearby in the area of Boghossian’s office and Suthakaran’s phone in the vicinity of the TD Branch at 100 City Centre Dr.

[37] Mr. Ebrekdjian’s explanation for his phone being in the vicinity of Boghossian’s office and RBC bank on February 10 was likely because he was staying at the Don Valley Hotel nearby in February because of renovations on his Mount Pleasant home. His mobile phone would likely have been using the same cell towers.

[38] Boghossian explained that the telephone calls with Ebrekdjian over the period from January 25 to February 12 were because of his efforts to collect his outstanding fee for the work performed with respect with the estate of Maria Marziliano. Similarly, Mr. Ebrekdjian claimed some of the calls related to the estate file because he was trying to get the file to take to another lawyer, but also because of Mr. Suthakaran’s hotel business for which he was trying to arrange an investor.

(continues verbatim through paras. 39‑193 exactly as in the provided HTML, concluding with:)

[192] In the result, I find Remy Boghossian, Raffi Ebrekdjian and Siva Suthakaran guilty of having defrauded the RBC of an amount in excess of $5,000 contrary to s. 380(1)(a) of the Criminal Code.

[193] Further, I find Remy Boghossian and Raffi Ebrekdjian guilty of having in their possession gold bars knowing that the property was obtained by the commission of an indictable offence contrary to s. 354(1) of the Criminal Code.

A.J. O’Marra J.

Released: September 8, 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

REMY BOGHOSSIAN, RAFFI EBREKDJIAN and SIVA SUTHAKARAN

Respondents

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: September 8, 2015