Court File and Parties

COURT FILE NO.: CR-14-126 DATE: 2016-08-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RAJEEV HENRY BALENDRA Defendant

COUNSEL: F. Temple, for the Crown H. Saini, for the Defendant

HEARD: August 17, 2016

RULING ON MOTION FOR A DIRECTED VERDICT

HEALEY J.

[1] This is the court’s ruling on a motion for a directed verdict on counts 1, 3, 5 and 7 on the indictment. Crown counsel has confirmed that he will be formally withdrawing counts 2, 4 and 6 when the trial resumes before the jury, for the reason that those counts are redundant.

[2] The remaining counts are: Count 1 - fraudulent or unauthorized possession of credit card data contrary to s. 342(3)(a); Count 3 - conspiracy to commit the offence of fraud contrary to s. 465(1)(c); Count 5 - possession of identity information with intent to commit an indictable offence contrary to s. 402.2(1); and Count 7 - possession of forged or falsified credit cards knowing that they were obtained, made or altered by the commission of an offence contrary to s. 342(1)(c).

[3] The facts of this case are simple. Following what the defence concedes was a legal roadside stop of a vehicle, both the accused and the passenger were arrested. The accused was the driver; Pidliskovyy was the passenger. Several items of evidence were located on either the accused or Pidliskovyy on the day of their arrest, or were subsequently located in the vehicle.

[4] The Crown led evidence that the credit card data that forms the basis of count 1 was contained on a USB drive alleged to have been found in clothing worn by the accused at the time of his arrest. Constable Hitch, the arresting officer, testified that he found it in the accused's pocket during the pat down search at the time of arrest. Constable Humber, who searched the USB drive, printed the data, and organized it for the various banks and financial institutions, testified that over 2,000 different credit card numbers were contained on the drive.

[5] The conspiracy to commit fraud referenced in count 3 relates to the alleged use or attempted use by the accused of unauthorized credit card data. The Crown led evidence by way of affidavits or letters from financial institutions that some of the credit card numbers issued by them to their clients had been used without the authorization of those credit card holders, resulting in losses to the financial institutions, or attempts had been made to use some of the card numbers. The financial losses attested to exceed $5,000. The Crown led evidence that these credit card numbers referenced in affidavits or letters provided by the financial institutions are the same credit card numbers found either on the USB drive, or on counterfeit credit cards located in the vehicle.

[6] The possession of identity information with intent to commit fraud, which forms the basis of count 5, refers to identity information of an individual by the name of Sivakumar Thanabalan. The Crown led evidence that the USB drive alleged to have been found on the accused contained a document containing this individual's name and birthdate, as well as a counterfeit Ontario Driver’s Licence bearing the same individual’s name and birth date.

[7] The final count, possession of forged or falsified credit cards knowing that they were obtained, made or altered by the commission of an offence, relates to the credit cards located in the van. The Crown led evidence that these credit cards were hidden in a concealed compartment in the dashboard area of the van.

[8] As further circumstantial evidence potentially impacting upon each of these counts, the Crown also led evidence that the accused was found to be carrying a passport-sized photograph of Pidliskovyy in a pocket in his shirt. This same photograph can be seen on a forged driver’s licence located in Pidliskovyy’s wallet at the time of his arrest. The forged driver’s licence bore the name of Matthew Spazza. The embossed name on each of the 15 counterfeit credit cards located in the van was also Matthew Spazza. Certified copies of records from the Ministry of Transportation were entered as evidence, which indicated that the licence numbers on both of the driver's licences discovered by the police are not found in its database.

[9] The test that must be applied by the trial judge on a motion for a directed verdict is that set out in United States of America v. Sheppard, [1977] 2 SCR 1067 at p. 1080 and R. v. Monteleone, [1987] 2 S.C.R. 154 at p. 160, which is that that judge must determine whether there is sufficient evidence upon which the jury, properly instructed and acting reasonably, could convict. The principles that apply to such a determination, as developed in subsequent cases, are as follows:

(1) The test is the same whether the evidence is direct or circumstantial: R. v. Arcuri, 2001 SCC 54, at para. 22; Monteleone at p. 161;

(2) The nature of the judge’s task hearing a motion for a directed verdict varies according to the type of evidence that the Crown has elicited. Where the Crown's case is based entirely on direct evidence as to every element of the offence, the accused must be committed to trial. Where the Crown has not elicited direct evidence of some or all of the elements of the offence, the question then becomes whether those elements - for which there is no direct evidence - may reasonably be inferred from the circumstantial evidence. The trial judge must then conduct a limited weighing of any circumstantial evidence to determine whether, if believed by the jury, it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw: Arcuri, at paras. 22 and 23. Unless the evidence, direct and circumstantial, is sufficient to support a verdict of guilty beyond a reasonable doubt, then any guilty verdict rendered by the jury would mean that they were acting “unreasonably”;

(3) In conducting this limited weighing exercise, it is not for the trial judge to assess the credibility of witnesses, draw factual inferences, test the inherent reliability of the evidence or ultimately weigh the evidence to decide whether she would find the accused guilty beyond a reasonable doubt. These issues are to be left to the jury: Arcuri, at para. 23; Monteleone, at p. 159. As set out in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis Canada Inc., 2009), at para. 5.25, “…The task of limited weighing does not consider the inherent reliability of the evidence itself, but rather it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence”.

(4) Whether the evidence is direct or circumstantial, the judge must consider the whole of the evidence in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt: Arcuri, at para. 32. The principle that the entirety of the evidence must be considered is also found in the cases of R. v. Deschamplain, 2004 SCC 76, at paras. 35 and 40, and R. v. Coke, [1996] O.J. No. 808, at para. 9;

(5) Where there is no evidence on an essential element of the charge, the judge should not commit an accused to trial, or, in the case of a motion for directed verdict, should grant the motion in respect of that count: R. v. Sazant, 2004 SCC 77, at para. 16;

(6) Some evidence, if only at the level of a scintilla of evidence, must exist respecting the constituent elements: Coke, at para. 9;

(7) No item or chain of related items of evidence should be ignored if it has incriminatory probative value: Coke, at para. 11;

(8) Where more than one inference can be drawn from the evidence, only the inferences that favor the Crown are to be considered: Sazant, at para. 18. A variant of this principle was expressed in Coke as “any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution: Coke, at para. 9; and

(9) The inferences suggested by the Crown to be available to the triers of fact must be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is conjecture and speculation: R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 530; R. v. Munoz (2006), 86 O.R. (3d) 134, at paras. 23-31.

[10] With these principles in mind, I turn to an examination of the elements of each of the offences charged:

Count 1 – fraudulent or unauthorized possession of credit card data

[11] In order to prove that the accused is guilty of possession of credit card data that would enable a person to use a credit card or to obtain services that are provided by the issuer of a credit card to credit holders, fraudulently and without color of right, the Crown must prove:

(1) That the accused was in possession of credit card data, whether authentic or unauthentic; (2) That the accused knew that he was in possession of credit card data; (3) That the credit card data would enable a person to use the credit card or to obtain services provided by the issuer of the credit card; (4) That the accused had possession of the credit card data fraudulently and without authorization from the credit card holder.

Count 3 - conspiracy to commit the offence of fraud

[12] In order to prove that the accused is guilty of conspiracy to commit the offence of fraud, the Crown must prove:

(1) That there was a conspiracy between two or more persons; (2) That the conspiracy was to commit the offence of fraud; and (3) That the accused was a member of that conspiracy.

Count 5 - possession of identity information, namely the identity information of Sivakumar Thanabalan, with intent to commit an indictable offence.

[13] In order to prove that the accused is guilty of this offence, the Crown must prove the following elements:

(1) That the accused possessed another person’s identity information; (2) That the accused knew that he possessed that person’s identity information; and (3) That the circumstances in which the accused knowingly possessed such information give rise to a reasonable inference that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood.

Count 7 – possession of forged or falsified credit cards knowing that they were obtained, made or altered by the commission of an offence.

[14] In order to prove that the accused is guilty of this offence, the Crown must prove each of these elements:

(1) That the accused had possession of forged or falsified credit cards; (2) That the accused knew that the credit cards were forged or falsified; and (3) That the accused knew that the credit cards were obtained, made or altered by the commission of an indictable offence.

[15] With respect to the indictable offences in counts 5 and 7, it is alleged by the Crown that the accused was intending to commit the offence of fraud. The offence of fraud consists of the accused depriving someone of something of value, and that the accused’s deceit, falsehood or other fraudulent means caused the deprivation. The offence of fraud also requires intent to defraud. The value of the loss must exceed $5,000 in order to qualify as a fraud.

[16] Defence counsel first submits that it would be pure speculation for the jury to conclude that the accused had the requisite knowledge to satisfy any of the above four counts, as there is no evidence to confirm that he knew what was on the USB drive or that the fraudulent credit cards were in the van.

[17] To the contrary, there is ample evidence from which, if believed, the jury could draw the reasonable inference that the accused had knowledge of the contents of the USB drive, the presence of the fraudulent credit cards, and the fact that they were fraudulent. It is a compelling constellation of facts. It is reasonable for the jury to infer that a person carrying a USB drive either owns it, or has used it, and therefore is aware of its contents. The USB contains evidence supporting all four counts. The copy of a counterfeit driver’s licence within the possession of the accused aligns with the counterfeit licence in the possession of Pidliskovyy, and taken together with the passport sized photograph of Pidliskovyy in the possession of the accused, which is the photograph found on the counterfeit licence in Pidliskovyy’s wallet, gives rise to the available inference that the accused is involved in the creation of false identification. The next available and reasonable inference, based on the name of Matthew Spazza on both the driver’s licence and the falsified credit cards, together with the credit card data found on the USB drive, is that the purpose of such information was to defraud the issuers of credit cards. The direct evidence of the banks as to their losses, having examined credit card data purportedly found on the USB drive, completes the picture.

[18] These reasonable inferences available to be drawn from the circumstantial evidence can satisfy each of the elements of the four remaining counts.

[19] With respect to count 1, it is unnecessary for the Crown to prove that the issuer of the credit card data could be successfully defrauded by its use before the Crown can obtain a conviction: R. v. Beauchamp, 2015 ONCA 260, at paras 200-202; R. v. Kokoouline, 2009 ONCA 253, at para. 6; R. v. Tuduce, 2014 ONCA 547, at paras. 89-90.

[20] With respect to Mr. Saini’s submission that the fact that the credit card data from the USB drive and that provided from the financial institutions in their responses has been partially blacked out, and therefore not able to support a conviction, I again must disagree. The Crown elicited the evidence of Officer Humber that the numbers printed out by him and marked as Exhibit 6 were the same numbers as those contained in the responses from the financial institutions, marked as Exhibit 8. It will be up to the jury to decide whether they find Officer Humber's evidence reliable. There are statements contained within many of the responses from the 11 financial institutions involved which indicate that they are responding to those credit card numbers provided by the officer. It will be up to the jury to determine whether this evidence corroborates his testimony. The jury is not required to do a number by number comparison in order to reach the conclusion that the redacted numbers in both exhibits are the same. There is evidence available from which they may draw this inference, if they find it to be a reasonable one supported by the evidence. Officer Humber testified that he copied and pasted the credit card numbers from the documents found on the USB drive, organized them according to financial institution, and then sent them out to those financial institutions for response. Even though he testified that he has no expertise in word processing, it is a reasonable inference that he was able to do so without creating errors or inaccuracies in all of the numbers submitted to the banks, or even any of them.

[21] Finally, with respect to the conspiracy charge, the same evidence previously reviewed can readily support the inference that the accused and Pidliskovyy had an agreement to use credit card data to intentionally obtain services and goods, and thereby through deceit and falsehood depriving the card issuers of money, all amounting to a fraud.

[22] In summary, there is evidence, both direct and circumstantial, which can be used to satisfy all elements on each count. Where the evidence is circumstantial, the inferences that the Crown submits are available to be drawn are logical and reasonable, and do not come close to overstepping the line where logical probability dissolves into impermissible speculation.

[23] The application is dismissed.

HEALEY J. Released: August 17, 2016