COURT FILE NO.: CR-22-40000187

DATE: 20241029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RENFORD BARRAN

Ovais Ahmad, for the Crown

Megan MacKinnon, for Mr. Barran

HEARD: January 8, September 25, 2024

R.F. GOLDSTEIN J.

[1] Olga Taraschuk owned a house at 194 Florence Avenue in Toronto. In 2018, when she was 83, Ms. Taraschuk moved into a long-term care home. Her health, including her mental health, deteriorated considerably. She became the target of a fraud designed to drain the value of the house. One of the driving forces behind that fraud was Renford Barran. Mr. Barran pleaded guilty to that fraud. He now comes before the court for sentencing.

[2] On October 23, 2024, I imposed a sentence of three years in the penitentiary and read a summary of my reasons. These reasons constitute my full reasons for sentence and should be read that way.

FACTS

[3] Ms. Taraschuk lived in the house at 194 Florence Avenue most of her life. She inherited the house from her mother. She lived there with her husband until he passed away in 2014. She and her husband had no children. In 2013, Ms. Taraschuk’s health began to deteriorate. She was eventually diagnosed with dementia and other ailments. She later passed away. In 2013 she gave her cousin Sandra Shah a power of attorney. She moved into long-term care in 2018.

[4] On June 17, 2020, Mr. Barran opened a bank account with the TD bank. On August 21, 2020, Mr. Barran and an unknown female – someone who has yet to be identified – attended at the law offices of Sidney Feinberg on Toryork Drive in Toronto. The unknown female impersonated Ms. Taraschuk. Mr. Barran claimed to be her son. According to the law firm staff, the female “coughed up a storm”, explaining that she had recently been hospitalized for pneumonia. The woman impersonating Ms. Taraschuk signed several documents to facilitate a mortgage on 194 Florence Avenue – the house owned by the real Ms. Taraschuk.

[5] First Canadian Title Company registered a mortgage on 194 Florence Avenue in the amount of $903,676.00. On August 27, 2020, a cheque for $540,455 payable to “Olga Pauline Tarashuk” was issued. On September 9, 2020, Mr. Barran and the female impersonating Ms. Taraschuk attended at the TD Bank branch at 2547 Weston Road in Toronto to deposit the fraudulent mortgage cheque. The cheque was deposited into Mr. Barran’s bank account. Prior to the deposit of the cheque, there had been no significant activity in the account. Video footage from the TD Bank branch shows Mr. Barran and the unknown female attending at the branch to deposit the cheque. After the cheque cleared, Mr. Barran disbursed the money in the form of bank draft’s, ETF’s, Interac purchases, and ATM withdrawals.

[6] On September 30, 2022, the amount of $234,000 was electronically deposited into Mr. Barran’s account. This represented the second fraudulent transfer because of the mortgage. Mr. Barran made further disbursements from the account.

[7] In September 2020 Ms. Shaw received mail from First Canadian title regarding the mortgage placed on 194 Florence Avenue. This made no sense to Ms. Shaw, because to her knowledge there was no mortgage on 194 Florence Avenue. The correspondence stated that $549,455.00 had been deposited into the account. Ms. Shah informed her title insurance company. The company commenced an investigation. A third cheque was supposed to be disbursed into the account, but First Canadian Title Insurance, now aware of the fraud, did not issue the cheque or deposit the funds. Instead, First Canadian Title contacted the police, who began an investigation.

[8] It turned out that in 2020 the Toronto Police were conducting a major wiretap investigation into an organized crime group. Between June 22 and October 15, 2020, as part of that investigation, Mr. Barran’s communications were intercepted by the police. The intercepts captured Mr. Barran referring to his attendance at the Feinberg law office and the TD bank. Mr. Barran’s intercepted conversations also included references to the release of the mortgage cheque.

[9] The total financial loss was $783,455.00. The loss was borne by the TD Bank.

CIRCUMSTANCES OF THE VICTIMS

[10] Ms. Taraschuk, as noted, has passed away. She would have had no understanding of the fraud perpetrated on her. Ms. Shah, having the power of attorney, rented the house. It appears that the people she rented to were part of the fraud. Although the bank bore most of the loss, Ms. Shah and her family went through a considerable psychological burden. The Shahs were also forced to retain counsel and incur legal fees. The Shaws themselves are not young. At the time of sentencing Ms. Shah was 78 years old.

[11] Fraud of this nature has more victims than just the bank or the individuals who have suffered losses. A fraud on a bank may seem like a victimless crime, but it is not. Banks have shareholders who bear the loss. Although it is true that each shareholder’s loss is minor, it is still real and influences the financial health of the bank. The banks are a significant, highly regulated part of our economy. Canadians look to their banks as a source of financial stability. Fraud erodes the trust that people have in financial institutions. Trust is the lubricant of any market economy. Fraud on financial institutions erodes that trust and damages the economy.

[12] It is of course tempting to say that a fraud that impacts a large financial institution is not that big a deal. After all, the bank in this case is large and can absorb the loss. Nothing could be further from the truth. Moreover, that is also not the correct way to look at the fraud. As I will explain later in these reasons, the real target of this fraud was the equity in Ms. Taraschuk’s home.

[13] Fraud involving real property also erodes trust. Canadians rightly rely on the title system to preserve their property rights. Property rights are at the core of a market economy. Frauds of this nature undermine people’s confidence in their ability to own and deal with property. Like frauds on financial institutions, frauds in relation to real property also undermine trust and damage the economy.

CIRCUMSTANCES OF MR. BARRAN

[14] Mr. Barran was born in Jamaica in 1982 and spent his formative and high school years there. He immigrated to Canada at age 15 and became a Canadian citizen at age 18. His brother was apparently violently killed Jamaica, which affected and depressed him. He attended three years at the University of Toronto but dropped out due to financial pressure. He was, however, able to obtain a good job with a phone and internet company. His previous managers have described him as a good worker who had prospects to progress.

[15] Mr. Barran is currently employed as a maintenance worker. He assists his mother financially and has been doing so since his father passed away. The passing of his father was also a traumatic event for him.

[16] His currently partner, with whom he has children, states that he is an excellent father and partner to her. He is heavily involved in the lives of his children. His former partner, with whom he has two teen-age sons, also states that he is a positive father-figure to their children and involved in their lives. She says that they have a strong co-parenting relationship.

POSITION OF THE CROWN AND DEFENCE

[17] Crown counsel’s position is that Mr. Barran should receive a penitentiary sentence of 2 ½ to 3 years. He should also be subject to a restitution order payable to the bank for the amount lost and be subject to a DNA order. The Crown also asks for a fine in lieu of forfeiture. The Crown relies on several cases to establish the range.

[18] In R. v. Pun, 2018 ONCA 240 the sentencing judge imposed a 30-month sentence in relation to a real estate investment fraud. The complainant invested $620,000 with the offender for the purpose of buying land. No land was purchased. The offender was a 59-year-old first offender. She had received business and community organization awards. She made large charitable contributions. The sentencing judge, Dwyer J. of the Ontario Court of Justice, noted that the $620,000 fraud was very large in relation to the victim’s assets – it destroyed the equity in his home. The Court of Appeal upheld a sentence of 30 months, commenting that the sentence was at the low end of the range.

[19] In R. v. Scholz, 2021 ONCA 506, the sentencing judge imposed a conditional sentence of two years less a day for a major tax fraud involving millions of dollars. The offender was a chartered accountant. He was a first offender. The Court of Appeal, noting that the range for major frauds is three to five years, increased the sentence to three years.

[20] In R. v. Manickam, 2021 ONCA 668, the offender owned a small business. He became heavily indebted. He became involved in a fraudulent cheque cashing scheme aimed at defrauding the TD and Royal Banks. The loss to both banks was about $250,000. The offender was a first offender. The sentencing judge recognized that the offence called for a penitentiary sentence but after taking all the various factors into consideration, imposed a sentence of 18 months. The Court of Appeal upheld the sentence, disagreeing that the trial judge erred by refusing to impose a conditional sentence. Tulloch J.A. (as he then was) made a comment that could apply to this case at para. 46:

The appellant's offence was serious and premediated. His moral blameworthiness was high. He committed a premediated fraud purely for his personal gain, and this fraud resulted in a combined loss of over $250,000 to two banks.

[21] In R. v. Fiorilli, 2014 ONSC 1117, the offender was found guilty after a trial of fraud involving two real estate transactions where a bank and the Canada Mortgage Housing Corporation were defrauded of about $267,000.00. The offender was 49 years old and had no criminal record. He had some health issues and was on a disability pension. Trotter J. (as he then was, sitting as a judge of the Superior Court) made the following observation regarding the range of sentence (citations omitted) at para. 12:

This is a case of large-scale fraud. The Court of Appeal of this province has been very clear that, with these types of frauds, the primary sentencing goals should be denunciation and general deterrence. This principle has generally been vindicated by the imposition of jail sentences, even for first offenders… Penitentiary sentences are regularly imposed for large-scale frauds. For example, in R. v. Dwyer (2013), 2013 ONCA 34, 296 C.C.C. (3d) 193 (Ont. C.A.), the Court upheld a 3 1 /2 year prison term for a fraud that resulted in a loss of just over $200,000 to… RBC. There are also many examples of reformatory sentences being imposed… In exceptional circumstances, conditional sentences have been imposed.

[22] Trotter J. refused to impose a conditional sentence. The Court of Appeal upheld the sentence, noting that there was no error in refusing to do so: 2015 ONCA 328 at para. 6.

[23] The defence position is that Mr. Barran should be subject to a conditional sentence order for two years less a day followed by three years probation. The defence takes no position on the DNA order.

[24] The defence relies on several cases where conditional sentences have been imposed for frauds. I will review just a few of them.

[25] In R. v. Stirling, 2016 ONCJ 691, the offender was the treasurer of the Oakville Minor Baseball Association. He pleaded guilty to defrauding the Association of $468,166.66 over 5 ½ years. As treasurer, he was in a position of trust. The fraud put the association at risk of closing. The offender made restitution of $100,000.00. The bank refused to accept liability or wrongdoing but did donate $180,000.00 to the Association. At time of sentencing the offender was 66 years old. He had worked as a cost accountant and a consultant. He had many letters of reference. Harris J. of the Ontario Court of Justice sentenced Mr. Stirling to two years less a day conditional, plus three years probation.

[26] In R. v. Garrick, 2012 ONSC 2528, the offender took money to invest from three victims. The offender had a son who played on children’s football team. He convinced three other parents (the victims) with children on the team to invest in non-existent schemes. The three victims lost a total of $139,000.00. The offender was convicted after a trial. He showed no insight into the offences and refused to accept any responsibility. He was a first offender and had support in the community. He did spend 117 days in custody. Richetti J. imposed a conditional sentence.

[27] In R. v. Auckbaraullee, 2019 ONSC 2498, the offender was convicted after a trial of defrauding the Ontario Hospital Association of $80,000.00. The offender was an accounts payable clerk, which put her in a position to issue fraudulent cheques and deposit them in a bank account. Garton J. found that there were other individuals involved in the scheme and that there was no evidence that she made gained financially. Garton J. imposed a sentence of two years less a day conditional.

[28] After reviewing the authorities, I find that the bank fraud cases have limited application. Certainly, the banks were defrauded in this case, but the real target of the fraud was not a bank, but rather Ms. Taraschuk. Rather, this was an almost-perfect identity theft case –the victim was incapable of discovering that her identity was stolen. As Ms. Shah indicated, she had to hire lawyers to deal with the matter. I infer that the bank did not simply step up, which obviously put Ms. Taraschuk’s assets at considerable risk. Cases involving smaller frauds on banks that involve reformatory jail sentences are not irrelevant, but the three-to-five-year range set out in Bogart, however, is the appropriate range for a case of this nature. As I will explain in more detail later in these reasons, I also find, after reviewing the authorities, that a conditional sentence would not provide adequate denunciation and deterrence in a case of this nature. Each of the cases submitted by the defence involve lower amounts, or a decision by the sentencing judge that the principles of denunciation and deterrence did not require a jail sentence.

AGGRAVATING AND MITIGATING FACTORS

[29] Section 380.1(1) of the Criminal Code sets out several aggravating factors when a person is sentenced for fraud. The key subsections state:

380.1(1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

[30] Dealing first with subsection (a), the magnitude of the fraud was not large in absolute terms, but like the fraud in Pun it was enormous in relation to Ms. Taraschuk’s financial resources. Fraud requires deprivation or risk of deprivation to the economic interests of the victim through a dishonest act: R. v. Theroux, 1993 134 (SCC), [1993] 2 S.C.R. 5 at para. 13; R. v. Olan, 1978 9 (SCC), [1978] 2 S.C.R. 1175 at para. 11. Had the offender and his confederates succeeded in obtaining the full amount of the mortgage, it would have drained Ms. Taraschuk of the value her main asset. The risk of deprivation in this case to the victim was substantial. The risk of deprivation is also substantial to Ms. Shah. I also note that although the fraud was not overly complex, it did involve a degree of planning and sophistication.

[31] Subsection (c.1) also applies. The fraud obviously had a significant impact on Ms. Taraschuk’s financial prospects, something she was entirely unable to cope with. It also had a significant impact on Ms. Shah. Again, although the bank ultimately suffered the financial loss Ms. Shah, herself an elderly person, suffered a significant psychological and financial impact.

[32] The fact that the target of this fraud was an elderly, helpless victim suffering from dementia in long-term care is highly aggravating. Ms. Taraschuk was specifically targeted because she was unable to defend herself. Had Mr. Barran and his confederates succeeded, almost $1 million of equity would have been drained from Ms. Taraschuk’s home. That would have been a devastating loss for her.

[33] I turn to the mitigating factors. The most important mitigating factor in this case is that Mr. Barran pleaded guilty. He accepted responsibility and saved the state the resources required to bring him to trial and to prosecute him. That said, the amount of mitigation is somewhat limited. The case against Mr. Barran was overwhelming. It is hard to imagine what defence he might have tried to mount. To a large extent, this guilty plea was bowing to the inevitable. Moreover, I do not accept that Mr. Barran feels a great deal of remorse, except the remorse for getting caught. Mr. Barran told the probation officer who wrote the pre-sentence report that he felt very vulnerable when his father passed away. The probation officer said this in the report:

The subject advises that it was during this period in which he felt most vulnerable. He was approached and offered a substantial amount of money to assist in a re-financing of a home. The subject notes that he was unaware of the legal obligations at the time; but was keen on having the financial acceptance.

[34] Later in the interview, he told the probation officer that he took accountability for his part in the commission of the offence. He also said that to the court when I asked him if he had anything to say before I passed sentence, although he suggested that he should have known what he was offered was “too good to be true”. It seems clear to me, however, that Mr. Baran is attempting to minimize his involvement. I reject this attempt at minimization. Mr. Barran was an integral part of the plan. The idea that he was simply assisting in a re-financing and didn’t understand the legal obligations is not credible. He pretended to be Olga Taraschuk’s son when attending a law office and a bank. Like many fraudsters, Mr. Barran is peddling the farcical notion that he, is in fact, a kind of victim. That said, Mr. Barran is entitled to some degree of mitigation because of the resources saved.

[35] What is a true mitigating factor is that Mr. Barran is a first offender; that he has lived a pro-social life and been steadily employed; and that he is a good family man and a good parent to his children. It is also mitigating that he has the strong support of his current partner, and the support of his former partner. This support system shows that he does have prospects for rehabilitation.

[36] Ms. MacKinnon points out that Mr. Barran is a Black man and that this court should look to the Morris factors: R. v. Morris, 2021 ONCA 680. I do not doubt that as a Black man Mr. Barran has experienced systemic and possibly outright racism. However, Morris teaches that there must be some connection between the overt or systemic racism and the circumstances that explain or mitigate the criminal conduct: Morris at para. 97. There can be no discount based simply on a person’s colour. Respectfully, I do not see the connection here. Mr. Barran has not claimed to have experienced any particular form of systemic or overt racism that could connect to this particular crime. I would obviously carefully consider any such evidence, but I do not see any in this case.

[37] Mr. Barran began to attending counselling in September of this year. Although it is a welcome development, it is quite late in the process. It is not clear to me what other rehabilitative steps Mr. Barran has taken.

[38] There is some suggestion that Mr. Barran committed this crime out of financial hardship. If that is so, it is not a mitigating factor, any more than it would be if Mr. Barran was selling drugs or robbing banks.

PRINCIPLES OF SENTENCING AND SENTENCE IMPOSED

[39] The most important principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.2. The primary sentencing principles in fraud cases are denunciation and deterrence: R. v. Ahmad, 2018 ONSC 536.

[40] The range of sentence for major frauds is three to five years. The requirements of general and specific deterrence mandate a significant penitentiary sentence in fraud cases. The offender need not be in a position of trust for a penitentiary sentence to be imposed. In other words, the fact that Mr. Barran was not in a position of trust is not relevant to sentencing – it is certainly not a mitigating factor. As well, the fact that an offender is of good character, or a first offender generally does not take the sentence below the usual range: R. v. Scholz, supra, at paras. 18, 21, 22, and 24.

[41] This crime was a disgraceful fraud targeting a woman with dementia in a long-term care home. It is not entirely clear to me how Mr. Barran and his confederates learned that Ms. Taraschuk was in a debilitated state – although there is some suggestion from Ms. Shah that they learned about it from the tenants of 194 Florence – but it is obvious that Mr. Barran and his confederates somehow learned about it and decided to take advantage of it. The fraudulent scheme required some planning and sophistication – someone had to open an account, someone had to place a fraudulent mortgage on the property, someone had to impersonate Ms. Taraschuk, and someone had to attend a lawyer’s office. Mr. Barran was heavily involved. He obviously knew that his confederate was not Ms. Taraschcuk. He obviously knew he was not Ms. Taraschuk’s son. He was not willfully blind. He was a full and knowing participant.

[42] Was this a major fraud in the sense that is meant by the cases? It was certainly a major fraud in relation to Ms. Taraschuk. As I have noted, it represented a significant part of the equity in her home. Although I do not have the full details of her financial situation, I infer, based on all the circumstances, including the fact that Ms. Shah rented the home to defer expenses, that the home represented most of her assets.

[43] I find that a crime of this nature requires a penitentiary sentence as a matter of denunciation and deterrence. Those who would commit fraud against elderly people in long term care, taking advantage of their inability to respond, and attempting to drain them of the equity in their homes must understand that they will receive exemplary sentences. The fact that the bank ultimately bore the financial loss is of no moment. Putting the focus on the loss to the bank puts the focus on the wrong place. The moral blameworthiness associated with this type of crime is high for several reasons, not the least of which is that there is no evidence that Mr. Barran and his confederates know that the bank might ultimately step in. As I keep emphasizing, the target was a helpless person in long term care. Elderly people often rely on the equity in their homes to see them through their final years. Those who would defraud such vulnerable people should know that they will pay a steep price. The court must strongly denounce such behaviour. The community must see that those who would commit these types of crimes are fairly but properly dealt with.

[44] Even if I were to impose a term of imprisonment of less than two years, I would not impose a conditional sentence. I acknowledge that Mr. Barran is probably not a danger to the community. That said, I cannot see how a conditional sentence in these circumstances would be consistent with the purposes and principles of sentencing, as required by s. 742.1 of the Criminal Code. It would insufficiently denounce the crime. It would not comply with the fundamental principle of sentencing, which is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A conditional sentence would fail to be proportionate to the gravity of this offence – a somewhat sophisticated fraud on a helpless woman with dementia in a long-term care home. It would also fail to be proportionate to the degree of responsibility of Mr. Barran: he was an essential player in the fraud. He opened the bank account and disbursed the funds. He went to the law office knowing perfectly well his female companion was impersonating someone else – and he pretended to be her son.

[45] In my respectful view, a reasonable member of the community, one who is not consumed by an unreasonable desire for vengeance against criminals, would find a conditional sentence to be inadequate in these circumstances. Although the test is not whether a conditional sentence would bring the administration of justice into disrepute, I find that in this case a conditional sentence would do so.

[46] When I consider all the aggravating and mitigating circumstances, as well as the principles of sentencing, I find that a sentence of 3 years in the penitentiary is appropriate. I would also impose a freestanding restitution order pursuant to s. 738(1) of the Criminal Code in the amount of $583,455.00.

[47] Mr. Barran is therefore sentenced to 3 years in the penitentiary and a freestanding restitution order in the amount of $583,455.00 in favour of the TD Bank.

[48] The Crown also seeks a fine in lieu of forfeiture. Pursuant to s. 462.37(2) of the Criminal Code the consequences for non-payment are potentially significant and may include a considerable further prison sentence. The bank will have the resources and sophistication to pursue Mr. Barran for the funds. Under those circumstances, I decline to order a fine in lieu of forfeiture.

[49] I also decline to order that Mr. Barran give a sample of his DNA. There is no indication that Mr. Barran was involved, or has any prospect of being involved, in the kind of offences where having his DNA on file would assist law enforcement. Given that fraud is a secondary designated offence, I see no basis upon which to make the order.

R.F. Goldstein J.

Released: October 29, 2024

COURT FILE NO.: CR-22-40000187

DATE: 20241029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RENFORD BARRAN

REASONS FOR SENTENCE

R.F. Goldstein J.