CITATION: R. v. D’Souza and D’Gama, 2017 ONSC 5176 COURT FILE NO.: CR-15-10000-249-0000

DATE: 20170914 & 20171103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN D’SOUZA AND PETER D’GAMA

D. Boulet and M. Lockner, for the Crown

K. Sharma, for John D’Souza, and R. Paterson for Peter D’Gama

HEARD: July 18, 2017

REASONS FOR SENTENCE

A.J. O’MARRA J.

[1] John D’Souza and Peter D’Gama were found guilty after jury trial of uttering a forged document, a civil judgment as if it were a genuine, obstruct justice and attempt to commit fraud over the value of $5,000.

[2] The circumstances are that the accused, in the context of a civil action over a failed real estate transaction, in which they were the plaintiffs, prepared a forged ex parte motion judgment under the signature of Mr. Justice Michael Penny, of the Superior Court of Ontario, and presented it to the defendants as if it were genuine.

[3] The forged judgment was purportedly heard ex parte June 19, 2012 and on the same date Penny J. awarded the accused $60,000 damages for unlawful conversion, and $48,000 in punitive and exemplary damages for “joint criminal conduct in defrauding the plaintiffs”. References were made to “badges of fraud” that included parties previously dismissed from the action. A copy of the judgment was sent to the lawyer for the principal defendants under the signature of Peter D’Gama, in which he stated:

Inquiries regarding criminal prosecution of all parties involved in the above offences has been made. A written report has been submitted to the police for investigation, and I am in the process of doing so. An information will be sworn, and all parties involved in this fraud will be brought to justice.

[4] John D’Souza sent the forged judgment to the Real Estate Council of Ontario and filed a complaint, based on its declarations of purported fraud, with respect to the real estate agent for the principal defendants, a non-party to the litigation, to cause an investigation into her conduct.

[5] The lawyer for the principal defendants, on receipt of a copy of the judgment, recognizing its peculiar nature, took the unusual step of contacting Justice Penny to ascertain if it was genuine. Justice Penny had the matter brought before him as an urgent motion. The accused/plaintiffs consented to have the order set aside. The signature on the copy of the judgment appeared to be his. Justice Penny ordered the accused/plaintiffs to return at a later date with the original motion record bearing his endorsement, which would have been made by him on the backing page and the original entered judgment, which would have been returned to them by the court clerk. They were unable to do so.

[6] In his judgment, dated January 7, 2013 he held that the matter had never been before him in person or in writing. He had never seen the accused/plaintiffs or their motion record before and although the signature on the photocopy of the June 19, 2012 judgment looked like his, he did not sign the judgment.

[7] On the date the forged judgment was issued, June 19, 2012 he had been presiding in the Family Court, with a full docket, hearing family law matters. He had not been involved in any civil matters.

[8] The jury rejected the proffered defence that Justice Penny had signed the ex parte judgment and simply forgotten he had done so.

Background of the Offenders

John D’Souza

[9] Mr. John D’Souza is 63. He has been employed as a paralegal since 2010, although suspended by the Law Society of Upper Canada since being charged. He has a criminal record from January 1997 of attempted fraud, personation with intent, attempt to utter a forged document and forgery. The offences involved him having presented a forged order under the signature of a court registrar for the release of $1.5 million from the court. He was unsuccessful and received a sentence on conviction of 2 years’ incarceration. Also, he was convicted of fraud and forgery on February 19, 1997 involving an attempted fraud on a bank. Even though Mr. D’Souza received an administrative record suspension, formerly referred to as a pardon, his counsel conceded that by the application of s. 7.2 of the Criminal Records Act, R.S.C. (1985), c. C-47 it ceased to have effect as a result of him being convicted subsequently of an offence under the Criminal Code of Canada. (See R. v. Poupart 2010 QCCA 1956, [2010] Q.J. No. 11080; 2010 QCCA 1956).

[10] In a pre-sentence report prepared for Mr. D’Souza, it indicated that he was born in Pakistan the youngest of eight siblings and came to Canada with his parents in 1973. He married in 1985 and had three children, two daughters and a son. His youngest daughter, now 27, has Downs Syndrome and is dependent on him for all her needs. In 1992 he separated from his spouse and retained custody of his two daughters. His son remained with his spouse.

[11] He is the sole provider for their home. However, since being charged and suspended as a paralegal he has been receiving financial assistance from his siblings and his youngest daughter’s Ontario Disability Support Program payments. His co-accused, Peter D’Gama, a nephew, has been residing with them in the home. For additional household income they have been renting a room through a short term rental company.

[12] Mr. D’Souza has been actively involved with the Knights of Columbus, a Catholic Church organization helping to assist homeless and less fortunate persons. Ms. Jessica Bors, a friend from church, has known the offender for approximately five years, indicated Mr. D’Souza has spent most of his time taking care of his daughter and being a good father.

Peter D’Gama

[13] Peter D’Gama, 54 has no criminal record. In the pre-sentence report it indicates he was born in Pakistan and immigrated to Canada with his family in 1970. He is the eldest of four brothers and one sister with whom he has a good relationship. He is not married and has no children.

[14] Mr. D’Gama has a university education and been employed mainly in the area of technology and customer service. However, he has also been involved in providing immigration and paralegal consultations. His last position held was as a real estate agent, but has been inactive since being charged. For the past six years he has been residing with Mr. D’Souza, his maternal uncle. He assists in the care giving of Mr. D’Souza’s dependent adult daughter. Mr. D’Souza’s eldest daughter stated that Mr. D’Gama is the godfather and constant caregiver to her developmentally disabled sister. He has been also active volunteering in the community.

[15] With respect to Mr. D’Souza and Mr. D’Gama none of their extended family are aware of the offences for which they have been found guilty.

Position of the Parties

[16] It is the position of the Crown that Mr. D’Souza should receive a sentence of five years incarceration and Mr. D’Gama three years to emphasize the sentencing objectives of denunciation and deterrence. Mr. D’Souza has a related criminal record of fraud and attempting to utter a forged court order. He was a registered paralegal at the time of these offences when he attempted to manipulate the court process. Although Mr. D’Gama has no criminal record he too was actively involved in an attempt to manipulate the court process to obstruct justice and obtain personal gain. In addition, the Crown requests the court make the ancillary order under s. 487.051 of the Criminal Code for the offenders to provide sampling of body fluids for DNA analysis purposes.

[17] Counsel for Mr. D’Souza submits that the appropriate sentence for Mr. D’Souza would be two years less a day, which would be sufficient to meet the sentencing objectives of deterrence and denunciation. The court should consider a conditional sentence. Although he has a criminal record it is dated and it should not bear upon sentencing. He has the responsibilities of caring for his developmentally delayed daughter and he has been actively involved in helping others in the community, both of which he could continue if serving a community sentence. Further, he is a good candidate for community supervision because in the past when he was subject to a probation order he was compliant as noted in the pre-sentence report.

[18] Counsel for Mr. D’Gama submits that he should be sentenced to 18 months custody however, as a conditional sentence subject to house arrest conditions in that he has no criminal record and he has been actively involved in caring for his elderly parents, as well as his uncle’s developmentally delayed daughter.

Aggravating and Mitigating Circumstances

[19] The most aggravating aspect of the offences committed by the accused is that in forging a judicial officer’s signature and making use of it as it were genuine it was an act that would have served to undermine the public’s trust in the integrity of the administration of justice. Just as perjury undermines the administration of justice, so too or perhaps even more so, does the uttering of a forged judgment. It undermines the trust of the community in the administration of justice.

[20] In considering the appropriate sentence for attempt to obstruct justice and perjury, the Court of Appeal in R. v. Schertzer, 2015 ONCA 259, referenced the comments of British Columbia Court of Appeal in R v. Hall 2001 BCCA 74, at para 12 which are apt in this instance:

Obstruction of justice or attempting to obstruct justice strikes at our system of lawful society. The message must be clear that this type of interference with community system for handling criminal offences will not be tolerated. It is for this reason that courts must act firmly to express society’s disapproval and denunciation of such conduct.

[21] Such offences as observed in Schertzer observed attract deterrent sentences because the conduct strikes “at the very root of our system of justice”. Time after time the courts have referred to the fact that offences like perjury undermine the very heart of the administration of justice. It is no less so with respect to the civil justice system that is reliant on the honourable conduct of counsel and the parties. Here, the offenders were acting on their own behalf in an attempt to manipulate that trust to their own personal gain, while intentionally inflicting harm on others.

[22] I take into account as well that Mr. D’Souza and Mr. D’Gama acted on calculated scheme to manipulate the civil proceedings in their favour, motivated by a desire for personal gain. I note as well that the offenders had the forged order entered by clerks of the court who would have had no reason to consider the signature of Justice Penny to have been forged. In effect the offenders manipulated the system by relying on the trust that parties and court staff have in the litigants to act honourably.

[23] The offenders conduct also added to the costs of the defendants in the civil action by requiring them to bring a motion to challenge the authenticity of the order and to have it set aside. Although costs were ordered against the offenders by Justice Penny, the payment of costs has never occurred.

[24] In addition, it is an aggravating factor that the accused in a calculated and mean spirited act sought to intimidate the defendants through the spurious declarations of fraud and threatened criminal proceedings in the context of the civil action they initiated. Further, when they submitted the forged judgment to the Real Estate Council of Ontario it was clearly an attempt to jeopardize the professional standing of a non-party to their civil claim.

[25] With respect to Mr. D’Souza, it is an aggravating factor that he was a licensed paralegal and officer of the court, with obligations to the court at the time the offences were committed. In the commission of an offence under s. 380, fraud, the court shall consider it an aggravating factor pursuant to s. 380.1(1) e) where the offender has not complied with professional standard normally applicable to the activity or conduct. Further, he has a criminal record for a similar offence, even though dated, in which he attempted to obtain personal gain by forging a court order.

[26] In mitigation, Mr. D’Souza has been a good and attentive father to his disabled daughter and actively participated in volunteer efforts in the community.

[27] In terms of Mr. D’Gama he appears to have led an otherwise pro-social life by being actively involved in his community as well as being gainfully productive. He has no criminal record.

[28] The only case of a similar nature brought to my attention which dealt with uttering a court order under the forged signature of a judge is R. v. Shaw, [2012] AJ No. 1024. In that case the accused in the context of a divorce proceeding created a false order under the forged signature of a judge for the release of $125,000 to her by the law firm that held in trust the proceeds of sale of the matrimonial property. The justice who purportedly signed the order confirmed that she had not made any such order. Similarly, the clerk of the court indicated he had not signed or stamped the order as presented to the law firm.

[29] On a guilty plea the offender, 55 years with no criminal record, was sentenced to 15 months in prison and 18 months’ probation in recognition of the primary sentencing objectives of being general and specific deterrence and denunciation. The court recognized that the offender had significant psychological problems. However, the court observed that the acts were calculated, and required the application of significant skill, motivated by desire for personal gain. Her efforts were directed at obtaining a significant amount of money which had been denied to her by order of the court. She had been indifferent to the difficulties caused to her ex-husband or the law firm if it had paid out the trust funds on a forged court order. Her guilty plea significant mitigating factor.

[30] In R. v. MacIver, 2000 NBCA 82 a senior lawyer aged 68 in poor health convicted of counts involving tax evasion, making false statements, perjury and fabricating evidence received a sentence of five years for perjury and fabrication of evidence, plus three years for the income tax offences. The offences related to his having received additional funds from a client community organization for legal work transferred to a Swiss bank account, not declared as income. The court observed that his crimes were motivated by greed and he was a sophisticated person prepared to go to any lengths including perjury and the fabrication of evidence to avoid his obligations to the court, to his client and to the CRA.

[31] Where there is an attempt to manipulate the administration of justice for personal gain and to inflict harm on others, the court must act firmly to express society’s disapproval and denunciation of such conduct. The general sentencing principles of deterrence and denunciation are applicable in this instance, requiring a custodial sentence.

Conditional Sentence

[32] Counsel have raised the question of the court imposing a conditional sentence. Where I consider the offence to be one requiring a period of incarceration, which I do in this case, I must also consider the criteria set out in s. 742.1 with respect to the eligibility of the offender for a conditional sentence. The Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61 directed that a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that a conditional sentence is inappropriate for any specific offence.

[33] Under s. 742.1 of the Criminal Code a court may order a conditional sentence where:

1. The offence does not call for minimum term of imprisonment;

2. The court imposes a sentence of imprisonment of less than 2 years; and,

3. The court is satisfied that “serving the sentence in the community would not endanger the safety of a community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 and 718.2.

[34] With respect to D’Gama, I note that in sentencing a first offender the primary objectives of the court are to effect individual deterrence and rehabilitation. In R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 CCC (3d) 289, the Ontario Court of Appeal noted that the sentence should constitute the minimum necessary intervention adequate in the particular circumstances. Community based dispositions must be considered and more serious forms of punishment should be imposed only when necessary.

[35] While there is no minimum sentence required for these offences, I am of the view that the period of incarceration for Mr. D’Gama of two years less a day is appropriate in the circumstances.

[36] In terms of the third criteria, the Supreme Court in Proulx held that the danger to the community consideration requires a broad interpretation. The court stated at para 69 that two factors must be taken into account, (1) that the risk of the offender for reoffending, and (2) the gravity of the danger that could ensue in the event of re-offence.

If the judge finds that there is a real risk of re-offence incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.

[37] In examining the risk of re-offence the court should consider a number of factors including, (1) whether the offender has previously complied with court orders, (2) whether the offender has a criminal record that suggests the offender will not abide by a conditional sentence, and (3) the circumstances surrounding the offence.

[38] In this instance, in my view, Mr. D’Gama 53 with no criminal record, with no history of no compliance while on bail, which has been quite lengthy. He has led an otherwise pro-social existence in the community. He presents as a minimal risk to re-offence. While his offences call for a period of custody, I am of the view that the objectives of deterrence, denunciation and rehabilitation can be achieved by imposing conditions of house arrest during the term of the order. Moreover, it will permit continued involvement in the care of his elderly parents and the disabled daughter of his co-accused kin, D’Souza.

[39] Mr. D’Souza, on the other hand is not a first time offender. Even though his record is dated, he was convicted of offences involving similar conduct, the forging of a court order to unlawfully manipulate the court process for personal gain for which he received a sentence the equivalent of two years’ incarceration. Mr. D’Souza is deserving of a period of incarceration greater than two years less a day for his conduct and as such he is not a candidate for a conditional sentence.

[40] In consideration of the aggravating and mitigating circumstances noted above I impose the following sentences:

Peter D’Gama is sentenced to a term of two years less a day in custody on all counts to be served concurrently as a conditional sentence in the community, subject to the following terms:

(1) keep the peace and be of good behaviour;

(2) appear before the court when required to do so by the court;

(3) report within five working days of today's date, or today if possible, in person to a supervisor and therefore report when required by the supervisor and in the manner directed by the supervisor;

(4) remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor; and

(5) notify the supervisor in advance of any change of name or address and properly notify the supervisor of any change of employment or occupation.

[41] In addition to the statutory conditions, you will be bound by the following conditions:

(1) You will remain inside your residence for the first 12 months at all times, except for the purpose of

a. meeting with your conditional sentence supervisor;

b. attending at your place of employment for work;

c. performing the community service ordered as part of this sentence;

d. attending at medical or dental appointments for yourself, your parents or Mr. D’Souza’s youngest daughter;

e. medical emergencies of yourself, your parents or Mr. D’Souza’s youngest daughter;

f. obtaining the necessaries of life for yourself which shall be limited to 12 hours per week and arranged according to a schedule approved by your conditional sentence supervisor in writing in advance;

g. or for any other reason approved by your conditional sentence supervisor in writing in advance.

These exceptions include direct travel to and from the applicable location.

(2) Reside at address as indicated by the court and not change address without the proper prior approval of your conditional sentence supervisor in writing.

(3) Abstain from the purchase, possession and consumption of non-prescription drugs.

(4) Seek and Maintain suitable full-time employment.

(5) Commencing within 30 days of this order, perform 150 hours of community service work in a manner your conditional sentence supervisor directs at a rate of not less than 10 hours per month.

(6) Carry a copy of the conditional sentence order with you at all times when you are out of your residence.

[42] After 12 months, you will continue to be subject to the statutory terms and the previous conditions, except you will abide by a curfew and be inside your residence between the hours of 10:00 p.m. and 6:00 a.m., except for medical, dental, family related emergency situations with respect to yourself, your parents or Mr. D’Souza’s youngest daughter.

[43] In light of the length of the conditional sentence of imprisonment and the requirement of community service work I find that a period of probation is not necessary.

[44] In the event you breach any condition of your conditional sentence of imprisonment, you may be arrested and brought back before me for a hearing. If I find you did breach a condition, I will not hesitate to send you to jail for the remainder of your sentence.

[45] You will receive a copy of the conditional sentence order an explanation of the procedure to apply to change the option or conditions.

[46] John D’Souza is sentenced to a period of three years in the penitentiary on all counts to be served concurrently.

[47] Finally, I decline in this instance, to make an order under section 487.05(1) of the Criminal Code for DNA sampling given the nature of the offences committed and the background of the offenders.

A.J. O’Marra J.

Released: September 14, 2017

Addendum

Mr. Peter D’Gama experienced a serious health issue on September 12, 2017 for which he was hospitalized and as a result he was not available to receive sentence on September 14, 2017 when Mr. D’Souza was sentenced. His matter was remanded post-convalescence to November 3, 2017 at which time the sentenced referenced above was imposed.

CITATION: R. v. D’Souza and D’Gama, 2017 ONSC 5176

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN D’SOUZA AND PETER D’GAMA

REASONS FOR SENTENCE

A.J. O’Marra J.

Released: September 14, 2017