CITATION: R. v. Kassam, 2016 ONSC 7885
COURT FILE NO.: 15-6476
DATE: 20161216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
INAYAT AL-NASHIR KASSAM
Defendant
David Moull for the Crown
Inayat Kassam in person
HEARD: December 15, 2016
ruling on appliction for directed verdict
boswell j.
INTRODUCTION
[1] Mr. Kassam went to trial before a jury on a six count indictment: three counts of fraud; two counts of uttering forged documents; and one count of unlawful use of a notary stamp.
[2] The Crown has concluded its case. In the process, two counts have been withdrawn: one count of fraud and the count relating to the unlawful use of the notary stamp.
[3] Mr. Kassam, who represents himself, moved for a directed verdict on all but one of the other counts. I dismissed the motion from the bench with written reasons to follow. These are the reasons.
THE GIST OF THE CASE
[4] Mr. Kassam purports to have a juris doctorate degree from Renfrew University in Florida. He is not licensed to practice law in Ontario. He met Mr. Adam Seif, a practicing Ontario lawyer, in the summer of 2012. Mr. Seif hired him to act as an assistant in his office and to be his business manager. He worked for Mr. Seif for about a year, beginning in early September 2012.
[5] Mr. Kassam’s duties, according to the evidence of Mr. Seif, included bringing in clients; intake interviews with clients; executing retainer agreements with clients; preparation of communications and pleadings for Mr. Seif’s review; and various administrative tasks.
[6] Mr. Kassam was paid a commission of 18% on files he brought into the firm and in addition received a salary of $2,000 to $3,000 per month depending on his commissions.
[7] Mr. Kassam was not supposed to have his own independent practice. According to Mr. Seif, there should not have been any files opened by Mr. Kassam that he, Mr. Seif, did not know about. Yet there were. Mr. Seif named several during his testimony.
[8] When Mr. Kassam left Mr. Seif’s firm in the fall of 2013, he began to work with another lawyer, Dennis Yang, in a similar capacity. He fell out with Mr. Yang after only about a month. After that time he began to work with a third lawyer, Ali Siddiqi, though the terms of their arrangement are not in evidence.
[9] Mr. Kassam is alleged to have committed fraud against Mr. Seif and against the public generally. He is alleged to have represented himself to members of the public as a lawyer and to have taken retainers from them for legal work he did not perform, or which he partly performed under the pretext that he was a lawyer. The Crown produced several witnesses who said they were duped by Mr. Kassam this way.
[10] While employed by Mr. Adam Seif, Mr. Kassam is alleged to have forged a trust account cheque in the amount of $6,000 and to have deposited that cheque into his own account. He is also alleged to have taken retainers from various clients, whether by cash or cheque, that he converted to his own use.
[11] He is also alleged to have forged Mr. Seif’s signature on a power of attorney which he then purportedly used to lease one or more vehicles through Honda Finance.
THE LEGAL FRAMEWORK
[12] The test to be applied on an application for a directed verdict is straightforward and well-settled. It was set out by Ritchie J. in the oft-cited decision in United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R.1067, at p. 1080:
…whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
(the “Shephard test”).
[13] The test, as refined over the years, was recently summarized by Strathy, J., as he then was, in R. v. Acevedo, [2013] O.J. No. 1345, at para. 5:
…[I]s there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 at para. 8; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction. In a case like this one, where the evidence relied on by the Crown is entirely circumstantial, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri at para. 23, per McLachlin C.J.C. It is not, however, the responsibility of a judge on a motion such as this to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18, per Major J.
POSITIONS OF THE PARTIES
[14] Mr. Kassam’s position is that there was insufficient evidence tendered by the Crown to support counts 1, 2 and 4.
[15] Count one alleges that Mr. Kassam defrauded Adam Seif. Central to the charge is the assertion that Mr. Kassam signed a cheque made out to himself, in the amount of $6,000, from Mr. Seif’s trust account and then deposited it into his own account. Mr. Kassam argues, correctly, that there is no direct evidence that he signed the cheque. Count one also includes the allegation that Mr. Kassam converted retainer fees and/or client payments to his own account, to the detriment of Mr. Seif.
[16] Count two is related to count one and alleges that Mr. Kassam presented the forged cheque to the CIBC for negotiation. Mr. Kassam argues, correctly, that there is no direct evidence that he is the one who presented the cheque to the CIBC.
[17] Count four alleges that Mr. Kassam presented a forged document, granting him a power of attorney over Mr. Seif’s financial affairs, to Honda Finance and thereby obtained leases on two Honda vehicles. Mr. Kassam argues, in a similar vein to his other arguments and again correctly, that there is no direct evidence that he forged the power of attorney or presented it to Honda.
[18] Although he recognizes that there are available inferences arising from circumstantial evidence tendered by the Crown, Mr. Kassam asserts that those inferences are so weak that the jury could never find that the only rational inference arising from the evidence is that he is guilty. He asserts that the court must apply the Rule in Hodge’s Case on a motion for a directed verdict and relies, in support of this assertion, on a 1938 case from the Supreme Court called R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396
[19] The Crown opposed the motion for a directed verdict, though I ultimately did not call upon the Crown to make submissions.
DISCUSSION
[20] To establish guilt on any of the counts against Mr. Kassam, the Crown must prove each and every essential element of the offences charged, to the reasonable doubt standard. This requirement includes the obligation, of course, to tender evidence with respect to each eassential element.
[21] While there are four counts remaining, there are only two types of offences included in those counts: fraud and uttering a forged document.
[22] To establish Mr. Kassam’s guilt for fraud, the Crown must prove each of the following essential elements to the reasonable doubt standard:
(i) that Mr. Kassam deprived Mr. Seif and/or the public of something of value;
(ii) that Mr. Kassam’s deceit, falsehood or other fraudulent means caused the deprivation;
(iii) that Mr. Kassam intended to defraud Mr. Sief and/or the public; and
(iv) that the value of the money Mr. Seif and/or the public was deprived of exceeded $5,000.
[23] To establish Mr. Kassam’s guilt for uttering a forged document, the Crown must prove each of the following essential elements to the reasonable doubt standard:
(i) that the $6,000 cheque and/or the power of attorney was/were forged;
(ii) that Mr. Kassam knew or believed that the cheque/power of attorney was/were forged;
(iii) that Mr. Kassam dealt with the cheque/power of attorney; and
(iv) that Mr. Kassam represented the cheque/power of attorney as genuine.
[24] I will address, briefly, the evidence tendered by the Crown in relation to each essential element, on a count by count basis.
Count One
[25] Count one alleges that Mr. Kassam defrauded Mr. Seif.
[26] Mr. Seif testified that Mr. Kassam forged a cheque from his trust account, made it payable himself and deposited the cheque into Mr. Kassam’s personal banking account. He conceded under cross-examination that he did not actually see Mr. Kassam write the cheque. Mr. Seif went on to say that he had to write a cheque from his general account to his trust account in the amount of $6,000 to replace the funds taken by Mr. Kassam.
[27] Mr. Seif further testified that an individual named Wisam Yousef approached him after Mr. Kassam had left his firm and indicated that he had provided Mr. Kassam with a retainer in the amount of $2,400 and that Mr. Kassam had done no work for him. Mr. Seif said he had no record of the deposit, but was obliged to refund Mr. Yousef $2,400.
[28] A number of cheques were entered into evidence, on consent. It is agreed that each cheque in the bundle was deposited into Mr. Kassam’s personal bank account. The bundle includes cheques cut from Mr. Seif’s general account, payable to Marie Therese Colacci ($2,000), Hussein Jiwan ($3,000), Azmat Sumar ($1,500) and Turabali Kermally ($3,672.50) and, somewhat remarkably, Wisam Yousef ($2,400). The inference sought by the Crown is that these cheques, amongst others, were fraudulently cut from Mr. Seif’s account or otherwise fraudulently converted by Mr. Kassam.
[29] If the jury accepts that Mr. Seif did not sign the $6,000 cheque or authorize Mr. Kassam to sign it; that Mr. Seif did not know of or receive the retainer from Mr. Yousef; and did not know of or authorize Mr. Kassam to receive the various other funds that went into his personal account, then, in my view, there is ample evidence on which they could convict Mr. Kassam on count one.
[30] I accept that there is no direct evidence of Mr. Kassam signing the cheque for $6,000. But there is circumstantial evidence from which the jury could draw that conclusion. He had access to the cheques and to the accounting system. There is no apparent explanation as to why he was receiving the funds. He was the sole beneficiary of them. In any event, the $6,000 cheque is only part of the allegations in count one.
[31] I am not of the view that the court is required to apply the Rule in Hodge’s Case on motions for directed verdicts, as I outlined in R. v. Hong, 2015 ONSC 4562. I do not believe that the Comba decision remains good authority. Having said that, I find that there is sufficient circumstantial evidence present in this case that the jury ultimately could, acting reasonably, conclude that the only rational inference from all the circumstances, is that Mr. Kassam is guilty. I am not saying the jury must, or should, find as such. Only that they reasonably could.
Count Two
[32] Count two alleges that Mr. Kassam signed a trust cheque without authorization, made payable to himself for the sum of $6,000, and forged Mr. Seif’s signature on it. Mr. Seif has testified that he did not authorize the $6,000 cheque to be issued and did not sign it.
[33] To be clear, the Crown does not have to prove that Mr. Kassam personally forged the cheque. They do have to establish that the cheque was forged, that Mr. Kassam knew or believed it to be forged, that he dealt with it, and that he represented it to CIBC as genuine.
[34] Mr. Seif testified that he did not sign the cheque or authorize its issuance. Should the jury believe that evidence, they will inevitably conclude that the cheque was forged.
[35] Mr. Seif conceded that he did not see Mr. Kassam write out the cheque. There is, in fact, no direct evidence that Mr. Kassam is the person who forged it. That said, there is a body of circumstantial evidence that may, depending on the jury’s findings, support the conclusion that Mr. Kassam either forged the cheque himself or at least knew that it was forged when it was deposited to his account at the CIBC.
[36] There were only a small group of people who had access to Mr. Seif’s trust cheques and his accounting system. Mr. Kassam was one of them. Mr. Kassam was the sole beneficiary of the cheque. His agreement with Mr. Seif was that a monthly invoice would be provided and a monthly payment made. This $6,000 was not a part of an invoice or payment. The monthly invoices were generated from Mr. Kassam’s company, IRF International Inc. The monthly payments were to IRF. The $6,000 cheque, however, was to Mr. Kassam personally.
[37] There is no doubt that the cheque was presented to the CIBC and deposited to Mr. Kassam’s bank account. Again, though there is no direct evidence that Mr. Kassam made the deposit, it is an available inference in all the circumstances.
[38] There is, in my view, sufficient evidence to support a conviction on count two, depending, of course, on the findings of the jury.
Count Four
[39] Count four alleges that Mr. Kassam presented a forged power of attorney to Honda Finance in support of an application to lease two vehicles.
[40] A representative of Honda attended and testified that the power of attorney, purporting to grant Mr. Kassam a general power of attorney over the financial affairs of Mr. Seif, was delivered to a Honda dealership when Mr. Kassam applied for the leases.
[41] Mr. Seif testified that he did not know of, authorize, or sign such a power of attorney.
[42] If the jury believes Mr. Seif, which they are entitled to do, they will inevitably conclude that the power of attorney was forged.
[43] Mr. Kassam has established that there is no direct evidence that he forged the document. But again, there is a body of circumstantial evidence to consider. Mr. Kassam is the sole attorney named on the power of attorney. Should the jury be satisfied that the document is a forgery, the circle of potential suspects is a very small one. The notion that some unknown third party forged a power of attorney in Mr. Kassam’s favour and delivered it to Honda at just the time he happened to be negotiating car leases with them is a little hard to accept. Mr. Kassam is the only one who benefited from the power of attorney. He clearly knew it had been provided to Honda (whether by him or on his behalf) and he clearly knew that Honda relied on it when approving his leases.
CONCLUSION
[45] The application for a directed verdict is, in my view, entirely without merit. It is dismissed.
Boswell J.
Released: December 15, 2016