



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D'Gama, 2020 ONCA 703

DATE: 20201106

DOCKET: C64629 and C64328

Doherty, Hourigan and Pardu
    JJ.A.

BETWEEN

C64629

Her Majesty the Queen

Respondent

and

Peter DGama

Appellant

AND BETWEEN

C64328

Her Majesty
    the Queen

Respondent

and

John
    DSouza

Appellant

Peter DGama, as self-represented

Richard Litkowski, for the appellant
    DSouza

Kevin Rawluk, for the respondent

Heard: October 28 by video conference

On appeal from the convictions entered
    on April 28, 2017 and the sentence imposed on the appellant, DSouza, on
    September 18, 2017, by Justice A.J. OMarra of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

The appellants were convicted by a jury of two
    counts of using a forged document, two counts of attempted fraud, and one count
    of attempting to obstruct justice. The appellant, DSouza, received a sentence
    of three years. The appellant, DGama, received a conditional sentence of two
    years, less a day. DSouza appealed conviction and sentence. DGama appealed
    conviction only. At the end of oral argument, the court dismissed the appeals
    with reasons to follow. These are those reasons.

[2]

In about 2010, the appellants sued a number of
    defendants over a failed real estate transaction. They represented themselves.
    In July 2012, the lawyer for some of the defendants received from the
    appellants what appeared to be a copy of an
ex parte
judgment, dated
    June 19, 2012 and signed by the Honourable Justice Penny of the Ontario Superior
    Court of Justice. The judgment purported to allow the appellants to proceed
    against certain bankrupt defendants, awarded the appellants damages, including
    punitive damages, and issued an injunction prohibiting the encumbrancing of certain
    property. The judgment also granted declaratory relief against various
    defendants, declaring those defendants had conspired to defraud the appellants.
    The judgment set out several specific findings of fraud made against various
    entities, including non-defendants.

[3]

The defendants lawyer suspected the bona fides
    of the judgment for many reasons. He requested a hearing before Justice Penny.
    That hearing took place in late July. With the consent of the appellants, Penny
    J. set aside the alleged judgment and ordered a further hearing. In December,
    Penny J. held the further hearing and subsequently released a costs endorsement
    [the endorsement]. The endorsement included the following:

[18] On June 19, 2012, there is an entry in
    the case history that a motion for judgment was on the list before Master
    Glustein. There is no record of the disposition of that attendance, I advised
    the parties that:

1. I was sitting in Family Law Motions on
    June 19, 2012 and this matter did not appear on my door sheet;

2. I have no recollection of seeing any
    record or material from this case, nor do I have any recollection of seeing the
    plaintiffs or have signing this order [judgment].

3. There is no record in the court system
    of this matter ever having been before me.

[23] This matter was never before me, in
    person or in writing.

[24] I had never seen the plaintiffs motion
    record of June 18, 2012 before it was delivered to my attention in November
    2012.

[25] Prior to July 31, 2012, I have never seen
    the plaintiffs before.

[27] Although the signature on the photocopy
    of the June 19, 2012 judgment appears to be my signature, I did not sign the
    June 19, 2012 judgment.

[4]

The Crown alleged the appellants, acting
    jointly, forged the judgment of Penny J. and then sent a copy of the forged
    judgment to counsel for some of the defendants threatening criminal charges.
    The appellants also sent a copy of the judgment to the Real Estate Council of
    Ontario. At least one of the defendants was subject to regulation by the Council.

[5]

The Crown contended the appellants conduct
    constituted using a forged document (two counts), an attempt to defraud two of
    the defendants for whom the lawyer who received a copy of the judgment acted
    (two counts), and an attempt to obstruct justice.

[6]

At a pretrial hearing, counsel for Justice Penny
    submitted Justice Penny could not be compelled to testify as the matters related
    to the exercise of his judicial function. The motion judge accepted this
    submission. He further held a redacted version of the endorsement provided by Justice
    Penny would be admissible for the truth of its contents under the principled
    exception to the hearsay rule:
R. v. DSouza
, 2017 ONSC 2231. The
    redacted endorsement was ultimately admitted at trial and became the
    centrepiece of the Crowns case.

[7]

Neither appellant testified. The defence led
    evidence from one witness, Albert Macedo. He claimed he had been contacted by
    the appellant, DSouza, who asked him to meet the appellant, DGama, at the
    courthouse and provide DGama with the funds necessary to file certain
    documents. According to Macedo, he had not spoken with DSouza for three or
    four years before he received this call.

[8]

Mr. Macedo went to the courthouse and met Mr. DGama.
    He did not examine the documents, but paid for the filing. He accompanied Mr.
    DGama to the Masters Office with the documents. Mr. Macedo left his phone
    number with the person in the Masters Office. A few days later, Mr. Macedo
    received a message indicating the the order is in. He called the appellant,
    DSouza, and told him he could pick up the order. Mr. Macedo did not know the
    name of the file, or anything about any of the material in the file. Nor did he
    ever see an order.

[9]

At trial, the defence argued the judgment was
    not a forgery, but either must have been signed in error by Justice Penny, or he
    had signed the judgment and forgotten about it. The defence pointed to evidence
    court documents could be misfiled in the course of making their way through the
    civil justice process. There was also evidence the civil courts in Toronto were
    very busy and generated a continuous and heavy paper flow.

[10]

The trial was brief and the evidence
    straightforward. By the end of the trial, there was one central issue  was the
    judgment forged? If the Crown proved beyond a reasonable doubt the judgment was
    forged, there was no realistic possibility anyone other than the appellants had
    forged the document. If the jury was satisfied the appellants forged the document,
    it was virtually inevitable the jury would convict on all counts. Equally, if
    the jury had a doubt as to whether the document was forged, it was inevitable
    the jury would acquit on all counts.

[11]

Counsel for Mr. DSouza made three arguments:

·

the trial judge failed to adequately identify
    for the jury the factors to take into account when assessing the reliability of
    the hearsay statements contained in the endorsement;

·

the trial judge erred in leaving s. 21(2) of the
Criminal Code
with the jury as a potential basis for liability, and
    erred in his instructions on the operation of s. 21(2); and

·

the trial judge erred in failing to give a 
W.D.

    instruction as it applied to the evidence of the defence witness, Macedo.

The Hearsay Instruction

[12]

The trial judge did not give a separate
    instruction cataloguing the specific concerns associated with the assessment of
    hearsay evidence, and in particular the assessment of the hearsay contained in
    the endorsement. The trial judge had canvassed with counsel his instructions
    relating to the endorsement. Counsel were content with the proposed
    instruction. The trial judge did tell the jury to consider the contents of the
    endorsement in the context of all of the other evidence. He also cautioned the
    jury against giving the evidence of the contents of the endorsement added
    weight, simply because its author was a sitting judge.

[13]

The appellants would not have benefitted from a
    more detailed hearsay instruction. This perhaps explains why counsel were
    content with the relatively bare bones instruction suggested by the trial
    judge. A detailed instruction could have referred to factors tending to
    undermine the reliability of the statements contained in the endorsement. However,
    the same instruction would have highlighted the circumstantial guarantees of
    trustworthiness surrounding the document. For example, if the trial judge had
    decided to explain to the jury the reliability of the endorsement could suffer
    because Justice Penny was not under oath when he made it, and not available for
    cross-examination, the trial judge would have also been required to explain to
    the jury Justice Penny was acting pursuant to his judicial oath of office when
    he authored the endorsement, and the endorsement was the product of an
    adversarial process in which the contesting parties had a full opportunity to lead
    all relevant evidence and make detailed submissions concerning the authenticity
    of the judgment.

[14]

The trial judge obviously did not say everything
    he could have said about the factors relevant to the reliability of the
    endorsement. That does not, however, constitute reversible error. Counsel were
    content with the instruction. The approach taken by the trial judge was far
    less harmful to the appellants case than a detailed review of the evidence relevant
    to the reliability of the endorsement would have been.

The Instruction on Section 21(2)

[15]

Section 21(2) is engaged if two or more persons
    agree to act together to commit a crime and one or more of them commits a
    different crime in the course of carrying out the common design. In this case,
    the Crown alleged the appellants acted together, formed a plan to forge the
    judgment and use that forgery for their purposes. The Crown claimed the
    appellants proceeded to do exactly that. This theory does not engage s. 21(2)
    and the section should not have been left with the jury. Unfortunately, the
    Crown requested an instruction on s. 21(2) and the trial judge provided one.

[16]

The s. 21(2) instructions were very brief. They
    were also inaccurate. The impact of the improper instruction on s. 21(2) is
    considered below when addressing the
curative proviso
.

The Failure to give a 
W.D.

    Instruction as it Relates to the Evidence of the Defence Witness, Macedo

[17]

Macedos evidence was incredible for many
    reasons. Furthermore, it is difficult to say his evidence, even if not
    rejected, could, on its own, leave the jury with a reasonable doubt on any of
    the charges. Assuming it could, however, the trial judge repeatedly tied
    Macedos evidence to the Crowns obligation to prove the charges beyond a
    reasonable doubt. For example, after summarizing Macedos evidence and the
    defence position reasonable inferences inconsistent with guilt could be drawn
    from his evidence, the trial judge instructed the jury:

If there are other reasonable inferences that
    can be drawn from the evidence, you would have to have a reasonable doubt and
    find the accuseds not guilty.

[18]

The trial judge used similar language in
    describing the Crowns position to the effect Macedos evidence was incapable
    of leaving the jury with a reasonable doubt about the appellants guilt.

[19]

The instructions adequately connected the
    Crowns burden of proof to the jurys assessment of the evidence of Macedo.

Curative Proviso

[20]

Crown counsel, in his submissions, correctly
    described the Crowns case as a powerful one. As noted above, if the jury was
    satisfied beyond a reasonable doubt the judgment was forged, it would
    inevitably have concluded the appellants created the forged document. There was
    quite simply nothing in the evidence pointing to any other possible author of the
    forgery. Not even the defence suggested someone else may have forged the
    document. The defence argued Penny J. had signed the judgment by mistake, or had
    signed it and had forgotten about it.

[21]

The evidence the judgment was forged was also overwhelming.
    That evidence included the content of the judgment itself. It is difficult to
    imagine any judge signing a judgment purporting to grant declaratory relief in
    the terms contained in this document. The observations of Penny J., reflected
    in his endorsement, the absence of any evidence lending an air of reality to
    the defence argument the document may have been signed in error, and the
    context of the litigation itself, also points strongly to the fraudulent nature
    of the document. This supposed
ex parte
judgment in favour of the
    appellants was issued only a few days after a motion for summary judgment by
    the defendants had been set down for argument several months down the road.

[22]

Not only is the evidence the appellants, acting
    together, forged the judgment and used it for their purposes overwhelming, any adverse
    effect from the s. 21(2) instruction was neutralized by the trial judges
    repeated and clear instructions that the outcome of all counts depended on
    whether the Crown had proved both appellants knowingly uttered a forged
    document. The trial judge repeatedly and forcefully tied the jurys verdict to a
    finding the appellants had jointly participated in a common design to knowingly
    forge and use the document. Given those instructions, there is no risk the
    erroneous instructions on s. 21(2) misled the jury or affected their
    deliberations. The
curative proviso
is safely applied.

DSouzas Sentence Appeal

[23]

The three-year sentence was appropriate. DSouza
    has a significant criminal record, including convictions, albeit dated, for
    closely related offences. He received two years in respect of those earlier offences.
    There is no reason to interfere with the sentence imposed.

DGamas Appeal

[24]

The appellant, DGama, adopted the submissions
    made by counsel for DSouza. He advanced several other grounds of appeal in his
    factum and addressed some of those arguments in oral submissions. The court did
    not call on the Crown to respond to any of the submissions made by DGama.

[25]

There is no merit to the grounds advanced by Mr.
    DGama. Two merit brief reference. Mr. DGama submits the motion judge wrongly
    held Justice Penny was not a compellable witness. We disagree. At para. 19, the
    motion judge said:

The central issue for determination is whether
    Justice Penny, were he to testify, would be compelled to speak about either the
    exercise of his judicial function, or about matters inextricably intertwined
    with the exercise of his judicial function.

[26]

The motion judge properly identified the
    operative principle. Any testimony from Justice Penny would have engaged either
    or both aspects of that principle:
R. v. DSouza
, 2017 ONSC 2231, at
    paras. 19-21.

[27]

DGama also argued a judge, other than a judge
    from the same judicial Region as Justice Penny, should have presided over the
    trial. He contended the failure to bring in an out-of-town judge created a
    reasonable apprehension of bias.

[28]

A judge from a different Region heard the
    pretrial motion relating to the compellability of Justice Penny and the
    admissibility of his endorsement under the hearsay rules. Bearing in mind the
    very strong presumption in favour of judicial impartiality, there is no reason
    to conclude the failure to bring in a judge from another region created a
    reasonable apprehension of bias. This is particularly so, given the charges
    were tried by a jury.

[29]

The appeals are dismissed.

DSouzas Failure to Surrender into Custody

[30]

At the outset of the appeal, counsel for DSouza
    advised his client had not surrendered into custody, as required by his bail
    order. DSouza claimed to be ill, although he had provided nothing to his
    counsel or to the court to support that claim.

[31]

DSouzas bail order, like all bail orders
    issued by this court, made it clear that the court could dismiss the appeal as
    abandoned if DSouza did not surrender, as required. After hearing submissions,
    the court decided to hear the merits of the appeal and reserve on whether it
    should dismiss the appeal as abandoned. After oral argument, the court decided
    it would decide DSouzas appeal on its merits.

[32]

All appeals are dismissed. A warrant should
    issue for the arrest of DSouza, if required.


Doherty J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


