



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davatgar-Jafarpour, 2019 ONCA 353

DATE: 20190502

DOCKET: C57831 & C58857

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent
(Appellant on the Sentence Appeal)

and

Morteza Davatgar-Jafarpour

Appellant
(Respondent on the Sentence Appeal)

Morteza Davatgar-Jafarpour, acting in person on the
    conviction appeal

Davin Garg, for the respondent/appellant on the sentence
    appeal

Ian Carter, for the respondent on the sentence appeal

Heard: November 8, 2018

On appeal from the conviction entered by Justice James A.
    Ramsay of the Superior Court of Justice, sitting with a jury, on September 4,
    2013, and from the sentence imposed on September 30, 2013.

Roberts
    J.A.:

A.

Overview
    and factual background

[1]

The appellant, Morteza
Davatgar-Jafarpour,
appeals against his multiple
    convictions for knowingly using forged documents, fraud, and conspiracy to
    commit fraud. The Crown seeks leave to appeal against the two-year global sentence
    imposed.

[2]

Mr. Jafarpour was the former executive director of Settlement and
    Immigration Services Organization (SISO), a non-profit organization that provided
    services to new immigrants through various programs. SISO received eighty
    percent of its funding from the federal government through Citizenship and
    Immigration Canada (CIC). The funding operated through contribution
    agreements by which CIC agreed to reimburse actual expenses in certain
    categories (such as payroll) up to a specified limit after the expenses were
    paid by SISO. As a result, no surplus should have arisen from SISOs delivery
    of CIC-funded programs.

[3]

Mr. Jafarpour, assisted by his co-accused, Ahmed (Robert) Salama, put
    into place and carried out over several years a large-scale fraudulent scheme
    against CIC. SISO submitted false information to CIC, seeking reimbursement for
    expenses that were not incurred and paid. Mr. Jafarpours scheme generated a
    large surplus. He coerced two employees, under the threat of SISOs demise and the
    loss of everyones employment, to advance the fraud by manufacturing false
    invoices and payroll records.

[4]

The fraud ran for several years before its discovery. According to the
    expert forensic accounting evidence, SISO had overclaimed $1.2 million in
    salaries for the 2009-2010 fiscal year, and, between 2008 and 2010, had accumulated
    approximately a $2.9 million surplus of revenue over actual expenses incurred
    and paid by SISO largely due to the fraud. CIC had recouped most of its losses by
    refusing to pay SISOs legitimate invoices.

[5]

SISO employed about 150 employees, all of whom lost their employment
    when the fraud was uncovered, and the organization went into bankruptcy. 
    Victim impact statements from SISO employees and contractors set out the
    emotional and financial hardships they suffered as a result of SISOs
    unexpected demise. According to the evidence of SISOs trustee in bankruptcy, these
    included the employees outstanding
Employment Standards Act
, 2000
,
    S.O. 2000, c. 41 claims of about $785,000, the damage to their reputations, and
    the difficulty in finding new employment given the stigma of association with
    SISO.

(i)

Convictions and sentence

[6]

On September 4, 2013, Mr. Jafarpour, along with Mr. Salama, was
    convicted by a jury of seven counts of uttering a forged document, one count of
    fraud, and one count of conspiracy to commit fraud, contrary to ss. 368,
    380(1), and 465(1) of the
Criminal Code of Canada
, R.S.C. 1985, c.
    C-46. On September 30, 2013, the trial judge imposed a two-year global
    custodial sentence on Mr. Jafarpour.

[7]

In his reasons for sentence, the trial judge did not make a finding
    about the exact amount of the fraud. Nevertheless, he held that the amount was
    well in excess of one million dollars and that the statutory aggravating
    factor set out in s. 380.1(1.1) of the
Criminal Code

applied. He
    stated that this was a big, complex, long-lasting fraud, which made out the aggravating
    factor set out under s. 380.1(1)(a). He also found that the statutory
    aggravating factor under s. 380.1(1)(d) had been proven, as Mr. Jafarpour took
    advantage of his high regard in the community in committing the fraud. In
    reviewing the expert forensic evidence, the trial judge determined that SISO
    claimed $1.2 million dollars more in salaries than it actually paid out and
    that [i]n the last three years [of the indictment], it accumulated a surplus
    of $2.9 million. The trial judge noted that not all of that surplus would
    necessarily have come from CIC because only eighty percent of SISOs funding
    came from CIC. However, he inferred that the overcharging of CIC was the main
    factor in the surplus that accumulated.

[8]

With respect to the actual loss suffered by CIC and the impact of the
    fraud on the government, the trial judge held that CIC recovered some of their
    loss by refusing to advance more money, including money for new work
    legitimately performed by SISO. On the evidence before him, he found that CIC
    may have recovered all its losses or still be due up to $448,000. The trial
    judge also noted that the lost money was only one part of the frauds impact
    because it tied up a great [deal] of CICs resources by causing audits that
    were unnecessarily complicated by the continuing deceit.  He concluded that
    apart from making a restitution order inadvisable, whether substantial
    recovery or total recovery took place, makes little difference to sentence in
    the circumstances.

[9]

The trial judge found that the fraud was not a breach of trust because Mr.
    Jafarpour was not in a trust relationship with CIC. However, he held that Mr.
    Jafarpours crime was still reprehensible and that he had no business
    abusing the good faith and benevolence of the Canadian government and thereby
    causing prejudice to his fellow citizens and no business corrupting two of
    his employees. While expressly not sentencing Mr. Jafarpour for breach of
    trust against SISO and acknowledging that sentencing is an individual
    exercise, the trial judge held that [a]buse of such an organization is worthy
    of denunciation and general deterrence and it was a tragedy to see such an
    organization collapse. He concluded that Mr. Jafarpour must take his share of
    the blame for that event.

[10]

Mitigating
    factors noted by the trial judge included Mr. Jafarpours difficult and brutal experiences
    in leaving his former homeland, his quiet good deeds on behalf of newcomers,
    his adoption of two orphaned children, and his creation of an important
    organization that did valuable work in the community.

The
    trial judge also acknowledged that Mr. Jafarpour previously had a sterling
    reputation in the community, but properly noted that his former good name could
    not be considered a mitigating factor pursuant to s. 380.1(2) of the
Criminal
    Code
because it was relevant to the commission of the fraud.

[11]

The
    trial judge noted that Mr. Jafarpours motive for the fraud seemed to have been
    simple empire building of a very large non-profit organization with some $14
    million in revenue and that he did not commit the specific thefts from SISO
    like his co-accused of which he was unaware. However, he also observed that
    although in line with chief executives salaries from similar-sized
    non-profits, Mr. Jafarpours significant salary was possible, because SISO
    seemed to be in such good shape.

[12]

As
    reflected in the longer sentence for Mr. Jafarpour, the trial judge saw his
    culpability as greater than his co-accused because Mr. Jafarpour was the
    person behind the fraud, the one who put it all into motion.

[13]

Crown
    counsel sought a sentence for Mr. Jafarpour in the range of five to six years. Counsel
    for Mr. Jafarpour submitted that a sentence in the range of two to three years
    would be appropriate. The trial judge held that the particular circumstances
    of this case strike [him] as being closer to the cases in which sentences from
    18 months to three years have been imposed than the cases in which the range
    has been set to three to five years or more. The trial judge determined that
    an adequate deterrent for Mr. Jafarpours actions was a sentence of two
    years custody in the penitentiary.

(ii)

Appeal
    proceedings

[14]

On
    October 29, 2013, Mr. Jafarpours co-accused, Mr. Salama, filed his notice of
    appeal from conviction.  The Crown filed its notice of application for leave to
    appeal and notice of appeal against sentence on October 30, 2013. On December
    16, 2013, Mr. Jafarpour filed his notice of appeal for inmate appeals, dated
    December 3, 2013. On May 28, 2014, this court granted Mr. Jafarpours motion
    for an extension of time to appeal. Mr. Jafarpour filed his notice of appeal
    against conviction on May 29, 2014. Three days later, on June 2, 2014, Mr.
    Jafarpour was released from custody on full parole. The Crown perfected its
    sentence appeal on July 15, 2014. Mr. Jafarpours warrant expiry date was
    September 29, 2015. He perfected his conviction appeal on March 12, 2018 under
    judicial case management.

B.

analysis

(a)

Conviction Appeal

[15]

Mr.
    Jafarpour submits two main grounds of appeal:

i)

The Crown
    breached its disclosure obligations by failing to decrypt a hard drive referred
    to as Hard Drive B and produce the hundreds of documents contained in that
    drive. Mr. Jafarpour maintains that the documents would have supported his
    denial of involvement in the fraudulent scheme. Mr. Jafarpour also disputes the
    authenticity and source of several electronic documents tendered in hard copy
    format at trial. He submits the Crown did not discharge its burden to prove the
    authenticity of electronic documents, contrary to s. 31.1 of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5.

ii)

Mr. Jafarpour suffered
    trial unfairness and a miscarriage of justice because of the ineffective
    assistance of his counsel at trial.

[16]

I
    would not give effect to these grounds of appeal.

[17]

First,
    the Crown was not obliged to decrypt Hard Drive B and produce the documents it
    contained. Hard Drive B is a backup drive containing data from SISOs servers. The
    police had seized this backup drive from a third party data company hired by
    SISO but did not decrypt it and did not review its contents. The Crown
    disclosed the fact of the seizure of Hard Drive B to the defence. The defence
    did not request that the drive be decrypted. Rather, the defence used the fact
    that the police did not review the contents of Hard Drive B, as well as the
    absence of other documents and email transmissions, to argue that there was a
    gap in the Crowns case giving rise to a reasonable doubt about Mr. Jafarpours
    role in the fraudulent scheme. The jury was made aware of Mr. Jafarpours
    defence by his trial counsel in examinations and cross-examinations of
    witnesses, including Mr. Jafarpour; in trial counsels closing submissions; and
    by the trial judge in his jury charge.

[18]

Parts
    of Hard Drive B that were subsequently decrypted after trial were produced as
    fresh evidence on appeal. Mr. Jafarpour has not demonstrated how any of the
    documents on Hard Drive B would have affected the outcome of the trial. Not one
    of them diminishes or contradicts the ample evidence of Mr. Jafarpours
    involvement in the fraudulent scheme that was put before the jury.

[19]

With
    respect to the other evidentiary issue, Mr. Jafarpour reiterates his trial
    argument about the source of the 400 hard copy documents presented by the
    Crown at trial. On appeal, he now disputes the authenticity of those
    documents.

[20]

In
    November 2010, one of the SISO employees coerced to assist in the fraud,
    provided the police with the hard drive from Mr. Jafarpours work computer and
    copies of Mr. Salamas work files on an external hard drive. The police
    uploaded the contents of both drives to a secure database and searched the
    database to locate relevant documents, focusing on emails with attachments. As
    I understand the record, the relevant documents were those 400 hard copy pages
    tendered as evidence. In May 2013, the Crown provided to the defence a duplicate
    copy of the internal hard drive from Mr. Jafarpours work computer.

[21]

At
    trial, Mr. Jafarpour did not dispute the authenticity of the documents.
    However, he asserted that they did not represent the entirety of the emails he
    sent and received while at SISO, despite the Crowns representations to the
    contrary. There were about 133 emails archived on Mr. Jafarpours hard drive.

[22]

I
    would not give effect to Mr. Jafarpours argument with respect to the
    electronic documents. First, the authenticity of the documents was not an issue
    at trial. These documents were sourced both from Mr. Jafarpours internal hard
    drive and the external hard drive containing copies of Mr. Salamas files. The
    Crown did not make the representation that all documents were sourced from Mr.
    Jafarpours work computer. Second, similar to the concerns surrounding Hard
    Drive B, Mr. Jafarpours trial counsel asked questions about the source of
    these documents in cross-examinations; he raised the uncertainty as to the
    source of these emails in his closing address to the jury; and the trial judge
    noted this issue in his charge to the jury.

[23]

Overall,
    the verdict was firmly grounded in the hundreds of documents taken from Mr.
    Jafarpours internal drive and the external drive of his co-accused, as well as
    testimony of the witnesses at trial which clearly established Mr. Jafarpours
    orchestration of the fraudulent scheme. Mr. Jafarpour and Mr. Salama admitted
    that the documents submitted to the government for reimbursement of false
    expenses were not genuine. They each attempted to blame the other for the fraud
    in a cut-throat defence. However, there was a clear paper trail of myriad
    e-mail correspondence,

which Mr. Jafarpour did
    not dispute as inauthentic at trial, showing Mr. Jafarpours knowing
    participation in and furtherance of the fraud.

[24]

I
    similarly reject Mr. Jafarpours allegation of ineffective assistance of
    counsel. In my view, Mr. Jafarpour has failed to meet the test for such a
    claim.

[25]

In
R. v. Cubillan
, 2018 ONCA 811, 49 C.R. (7th) 339, at para. 8, this court
    recently summarized the criteria that must be met to establish a claim for
    ineffective assistance of counsel:

The appellant
    must establish on a balance of probabilities that trial counsel's conduct fell
    below the standard of reasonable professional assistance and that the
    ineffective representation resulted in a miscarriage of justice. A miscarriage
    of justice occurs when the ineffective representation "undermine[s] the
    appearance of the fairness of the trial, or the reliability of the
    verdict":
R. v. Archer

(2005), 202 C.C.C. (3d) 60
(Ont. C.A.), at
    para. 120. The unreliability of a verdict is made out where the appellant can establish
    that there is a reasonable probability that the verdict would have been
    different had he received effective representation. A reasonable probability is
    one that is "sufficiently strong to undermine the appellate court's
    confidence in the validity of the verdict":
R. v. Dunbar
,
2007 ONCA 840
, at para. 23.

[26]

The
    record demonstrates that Mr. Jafarpours trial counsel was effective in
    bringing out Mr. Jafarpours version of events, cross-examining the Crowns
    witnesses about the evidentiary deficiencies in its case, and urging the trial
    judge to put safeguards for Mr. Jafarpours benefit into the jury charge,
    including a warning against using Mr. Salamas evidence to implicate Mr.
    Jafarpour in the fraud. In my view, Mr. Jafarpours trial counsel did all that
    he could in the face of the overwhelming evidence of Mr. Jafarpours
    participation in the fraud that the jury was entitled to accept.

[27]

There
    was no miscarriage of justice or unfairness here. Mr. Jafarpour has not
    demonstrated that his trial counsel fell below the requisite standard. Even if
    he had, there is no reasonable probability or even possibility that the verdict
    would have been any different in the light of the Crowns formidable case
    against him.

[28]

As
    a result, I would dismiss Mr. Jafarpours appeal against his convictions.

(b)

Sentence Appeal

(i)

Is the sentence demonstrably unfit?

[29]

The
    Crown seeks leave to appeal against the two-year sentence that the trial judge
    imposed on Mr. Jafarpour. The Crown submits that a sentence of two years for this
    large-scale, sophisticated fraud was demonstrably unfit.

[30]

Mr.
    Jafarpour submits that the trial judge considered all the relevant factors,
    made no errors in principle, and that his sentence towards the low end of the
    range should be given deference.

[31]

I
    am mindful, as Mr. Jafarpours counsel submits, that sentencing is a
    fact-specific exercise and the choice of an appropriate sentence is driven by
    the trial judges evaluation of the unique variables in the particular case. Because
    sentencing is a highly individualized process, the imposition of a sentence
    outside of an established range is not necessarily unfit:
R. v. Suter
,
    2018 SCC 34, [2018] 2 S.C.R. 496, at para. 25. The Supreme Court in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, compendiously reiterated the governing
    considerations at para. 58:

There will always be situations that call for a sentence
    outside a particular range: although ensuring parity in sentencing is in itself
    a desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded. The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical calculation. It involves a
    variety of factors that are difficult to define with precision. This is why it
    may happen that a sentence that, on its face, falls outside a particular range,
    and that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit. Once again, everything depends on the gravity of the
    offence, the offender's degree of responsibility and the specific circumstances
    of each case. LeBel J. [in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1
    S.C.R. 206, at para. 44] commented as follows on this subject:

A judge can order a sentence
    outside that range as long as it is in accordance with the principles and
    objectives of sentencing. Thus, a sentence falling outside the regular range of
    appropriate sentences is not necessarily unfit. Regard must be had to all the
    circumstances of the offence and the offender, and to the needs of the
    community in which the offence occurred.

[32]

While
    not straitjackets, sentencing ranges cannot be arbitrarily ignored otherwise
    they become meaningless. As the Supreme Court acknowledged in
Lacasse
,
    sentencing ranges serve in any given case as guides for the application of all
    the relevant principles and objectives of sentencing: at para. 57.  They represent
    one tool among others that are intended to aid trial judges in their work: at
    para. 69. And, as the Supreme Court stated, at para. 67:

a deviation from such a range or
    category is not an error in principle and cannot in itself automatically justify
    appellate intervention
unless the sentence that is
    imposed departs significantly and for no reason from the contemplated sentences

    (emphasis added).
A sentence is demonstrably unfit if it
    unreasonably departs from the proportionality principle, a principle which
    requires reconciling parity of sentences and individualization:
Lacasse
, at para. 53.

[33]

In
    my view, the two-year sentence imposed by the trial judge for Mr. Jafarpours
    orchestration of the sophisticated, large-scale fraud against CIC is demonstrably
    unfit and cannot stand. It significantly departs without reason from the range
    of sentences contemplated for such a fraud.  Further, it fails to give effect
    to the fundamental principle of proportionality and other sentencing
    principles, including in particular, the principles of general deterrence and
    denunciation. Moreover, it is inconsistent with the trial judges own findings,
    given the aggravating circumstances and the absence of any significant mitigating
    circumstances that he found in this case.

[34]

In cases of large-scale fraud,
the range of sentences imposed in
    circumstances like the one at bar is generally three to five years: see
R.
    v. Khatchatourov
, 2014 ONCA 464, 313 C.C.C. (3d) 94, at paras. 37-45;
R.
    v. Dobis

(2002),
    58 O.R. (3d) 536
(C.A.),

at
    paras. 36-37;
R. v. Bogart

(2003), 61 O.R. (3d) 75 (C.A.), at
    para. 36, leave to appeal refused, [2002] S.C.C.A. No. 398. This range reflects
    the substantial weight that courts must give to the principles of general
    deterrence and denunciation:
Bogart
, at para. 29;
R. v. Drabinsky
,
    2011 ONCA 582, 107 O.R. (3d) 595, at paras. 160-161, leave to appeal refused,
    [2011] S.C.C.A. No. 491. As this court explained in
Bogart
, at para.
    30:

This court has affirmed that in cases of large-scale fraud committed
    by a person in a position of trust, the most important sentencing principle is
    general deterrence. Mitigating factors and even rehabilitation become
    secondary. In
R. v. Bertram and Wood
(1990), 40 O.A.C. 317, this
    court observed that most major frauds are committed  as this one was  by well-educated
    persons of previous good character. Thus the court held at p. 319,

The sentences in such cases are not really concerned with
    rehabilitation. Instead, they are concerned with general deterrence and with
    warning such persons that substantial
penitentiary
sentences will
    follow this type of crime, to say nothing of the serious disgrace to them and
    everyone connected with them and their probable financial ruin. [Emphasis in
    original.]



[35]

It
    is well established that, a penitentiary sentence is the norm, not the
    exception, in cases of large-scale fraud and in which there are no
    extraordinary mitigating circumstances:
R. v. Leo-Mensah
, 2010 ONCA
    139, 101 O.R. (3d) 366, at para. 11, leave to appeal refused, [2010] S.C.C.A.
    No. 170. As this court explained in
Drabinsky
, at para. 160, the
    sentencing principles of general deterrence and denunciation for large-scale
    commercial frauds will most often find expression in the length of the jail
    term imposed. For these reasons, as noted above, large-scale frauds like the
    one in this case ordinarily merit a sentence in the range of three to five
    years: see
Khatchatourov
,
at paras. 37-45;
Dobis
,

at paras. 36-37;
Bogart
,
at para.
36.

[36]

At
    trial, counsel for Mr. Jafarpour referred to cases where offenders who engaged
    in large-scale fraud received a sentence outside of the three-to-five-year
    range. However, the individual circumstances in those cases materially differ
    from the facts as found by the trial judge in the present case: the fraud was
    much shorter, not particularly sophisticated, and all of the stolen frauds were
    recovered:
R. v. Clarke

(2004), 189 O.A.C. 331 (C.A.); the
    offenders pleaded guilty and co-operated with the police:
Bogart
;
R.
    v. Wilson
(2003), 174 C.C.C. (3d) 255 (Ont. C.A.); or the offender played
    a small role in the fraud orchestrated by others:
R. v. Solleveld
,
    2014 ONCA 418, 120 O.R. (3d) 678.

[37]

The
    individual circumstances described in the above cases

that led this
    court to uphold sentences outside the range are not present in Mr. Jafarpours situation.
    As the trial judge found, the fraud orchestrated by Mr. Jafarpour

was large-scale,
    sophisticated, complex, and occurred over several years. While the trial judge
    did not specify the exact amount of the fraud, based on his findings, the
    expert forensic evidence, and the evidence of the trustee in bankruptcy for
    SISO, the fraud was at least between $2 and $2.5 million.
[1]


[38]

In
    the circumstances of this case, there were few significant mitigating factors
    and none that would have justified such a marked departure from the established
    range for large-scale frauds.  The most significant mitigating factors apparent
    from the record before the trial judge include that Mr. Jafarpour is a
    first-time offender, suffered hardship in the country of his birth, and enjoys
    the support of his family and many members of the community. While his fraud
    allowed him to command a significant salary for leading a large non-profit
    corporation, there is no evidence of the additional aggravating factor that Mr.
    Jafarpour otherwise personally appropriated the fraudulently obtained funds
    like his co-accused. As earlier noted, s. 380.1(2) of the
Criminal Code
stipulates that Mr. Jafarpours previously sterling reputation should not be
    considered as a mitigating circumstance because it was relevant to the
    commission of the fraud.

[39]

Moreover,
    the trial judge found seriously aggravating factors that were not significantly
    attenuated by his findings of mitigating factors.  For the purpose of
    empire-building, Mr. Jafarpour orchestrated and furthered the large-scale
    misappropriation of public funds over an extended period during which he
    continued to receive significant remuneration as SISOs director and chief
    executive officer because of SISOs apparent good shape. Mr. Jafarpour engaged
    in additional deceit and dishonesty to cover up the fraud and misled the
    auditors
. His actions materially contributed to
    the bankruptcy of SISO and the resulting emotional and financial damage to its
    many employees and contractors. While certainly entitled to proceed to trial,
    Mr. Jafarpour did not have the mitigating benefit of a guilty plea.

[40]

The
    trial judge imposed a sentence that departed inexplicably and significantly
    from the contemplated range. The two-year sentence represented a 50% deviation
    from the lowest end of the established range for large-scale frauds and was
    inconsistent with his own findings of seriously aggravating factors about Mr.
    Jafarpours conduct and the nature of the fraud in this case. His own findings required
    a longer penitentiary sentence than the two years imposed to properly reflect
    the principle of proportionality and the important purposes of general
    deterrence and denunciation.

[41]

The
    trial judges findings that there was no breach of trust towards CIC and likely
    no substantial unrecovered losses do not serve as distinguishing individual features
    that could support the two-year sentence imposed.

[42]

In
Khatchatourov
, this court rejected the argument that the three-to-five-year
    sentencing range for major frauds is reserved for frauds involving a breach of
    trust and significant losses. At para. 39, MacPherson J.A. for the court writes:

The
    four-year custodial sentences imposed are within the appropriate range for this
    large-scale, sophisticated fraud, even though the appellants were not in a
    position of trust with the financial institutions or, in a legal sense, with
    all of the personal victims, and the consequences for the primary victim  the
    public purse  were not "devastating".

[43]

The
    same aggravating conduct that underlies and informs the aggravating nature of
    breaches of trust are present here.  While Mr. Jafarpour may not have strictly
    been in a position of trust in relation to CIC, there can be no question, as
    the trial judge found, that Mr. Jafarpour blatantly abused his position as the
    director and chief executive officer of a non-profit organization and breached
    the good faith of CIC.

[44]

That
    CIC was successful in recouping most if not all its losses does not justify a
    sentence outside the sentencing range:
Drabinsky
, at para. 5. Fraud on
    government is not a victimless crime, as it takes money from the public
    purse and from all those who rely on it:
Khatchatourov
, at para.
    44. As the trial judge noted in this case, CIC also incurred considerable expense
    to carry out the forensic audits that uncovered the extent of the fraud.

[45]

As
    the Quebec Court of Appeal succinctly noted in
R. v. Coffin
, 2006 QCCA
    471, 210 C.C.C. (3d) 227, at para. 46, which involved the infamous sponsorship
    scandal fraud against the government:

The fallacious argument that stealing
    from the government is not really stealing cannot be used to downplay the
    significance of this crime. The government of the country has no assets itself;
    rather, it manages sums common to all of its citizens. Defrauding the
    government is equivalent to stealing from one's fellow citizens.

[46]

In
    my view, the circumstances of this case invoke aggravating factors for fraud
    set out in s. 380.1(1) of the
Criminal Code
including that the magnitude and duration of the
    fraud were significant
, Mr. Jafarpour took advantage of his high
    regard in the community, and he tried to conceal records of the fraud. While
    the fraud did not directly involve the 150 employees of SISO, as the trial
    judge found, Mr. Jafarpour had to take his share of blame for the demise of
    SISO and the unemployment of its employees. As the trial judge also acknowledged,
    under s. 380.1(2), he was not to consider as mitigating circumstances Mr.
    Jafarpours employment, employment skills or status or reputation in the
    community because those circumstances were relevant and contributed to the
    commission of the offence.

[47]

In these circumstances, even based on the case law
    proffered by Mr. Jafarpour, the two-year sentence, without explanation, fell
    well below the appropriate sentencing range for similar large-scale frauds
    that, as a norm, is a penitentiary sentence of at least three years. The
    two-year sentence represents a 50% deviation from the bottom of the established
    range.  The sentence did not reflect the predominant sentencing principle of proportionality
    because it failed to adequately take account of
the
    sentences typically imposed for large-scale frauds committed in similar
    circumstances as well as the individual circumstances of this particular case
. As a result, mindful of the great deference owed to
    the trial judges exercise of his discretion, I am nevertheless of the view
    that the sentence is demonstrably unfit and should be increased.

[48]

In
    my view, having regard to the particular circumstances of this case, the
    appropriate global custodial sentence would be four years. Deducting the two
    years already served, this would leave Mr. Jafarpour with two years to be
    served.

(ii)

Is
    re-incarceration in the interests of justice?

[49]

Mr.
    Jafarpour submits that given the long passage of time and his rehabilitative
    efforts, he should not be re-incarcerated to serve the two years remaining in
    his sentence. According to Mr. Jafarpour, re-incarceration is not necessary for
    the purposes of general deterrence and denunciation and will not serve the
    other principles of sentencing.

[50]

This
    court has generally been reluctant to re-incarcerate an offender who has served
    the sentence originally imposed and has been released into the community:
Leo-Mensah
,
    at para. 15;
R. v. F. (D.G.)
, 2010 ONCA 27, 98 O.R. (3d) 241, at para.
    33. Factors such as delay and an offenders meaningful progress in the
    community may militate against re-incarceration:
F. (D.G.)
, at para.
    33. The court must consider whether the principles of denunciation and
    deterrence require re-incarceration or whether the community is best protected
    if the offender continues along the rehabilitative path that he has followed
    since his release from custody:
R. v. Smickle
, 2014 ONCA 49, 306
    C.C.C. (3d) 351, at para. 20. I also recognize that re-incarceration imposes a
    considerable additional hardship:
R. v. Inwood
(1989), 48 C.C.C. (3d)
    173 (Ont. C.A.), at p. 184. The overarching issue is whether re-incarceration
    is in the interests of justice: see
R. v. Cheng
(1991), 50 O.A.C. 374 (C.A.), at para.
5
;
R. v.
    Boucher
(2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para.
33.

[51]

The
    delay in this case is concerning. It cannot all be laid at the Crowns feet.
    Rather, Mr. Jafarpours actions account for most of the delay: he filed his
    notice of appeal in the inmate appeals stream in December 2013, over a month and
    a half later than his co-accused; he sought and was granted an extension of
    time to appeal in May 2014, more than eight months following his convictions
    and seven months following the Crowns appeal against sentence; he raised and
    then abandoned an application for counsel under s. 684 of the
Criminal Code
;
    he sought decryption of Hard Drive B; and he pursued the ground of ineffective assistance
    of counsel which, even with case management by this court, took almost three
    years to process. I also note that in February 2015, Mr. Jafarpour firmly
    rejected the Crowns suggestion that the sentence appeal be heard before the
    conviction appeal. While Mr. Jafarpour had every right to take these positions
    and advance these issues on appeal, he cannot then rely on the long delay of
    his own creation as a bar to re-incarceration when it would be otherwise in the
    interests of justice.

[52]

That
    said, I do not believe that re-incarceration would be in the interests of
    justice in the circumstances of this case. In my view, the principles of
    denunciation and general deterrence do not require re-incarceration and the
    public is best protected if Mr. Jafarpours rehabilitative path remains
    uninterrupted. I say this for the following reasons.

[53]

First,
    the relatively short amount of time that Mr. Jafarpour would serve in custody before
    full parole would not be required to advance the principles of denunciation and
    deterrence and could harm Mr. Jafarpours rehabilitative efforts. Mr. Jafarpour
    was released on full parole in 2014 after spending about eight months in
    custody. Given his impeccable behaviour while in custody and since his release,
    Mr. Jafarpour would again likely be released after serving eight months of the
    additional two years of his sentence. He is the main breadwinner for his family
    and re-incarceration would cause them great hardship.

[54]

Mr.
    Jafarpour is firmly on the path to rehabilitation and is highly unlikely to
    re-offend. He was a first-time offender and is now 59 years old. Trained as a
    medical doctor and a refugee from his home country where he suffered
    persecution, he re-established himself in this country and devoted himself to
    serving other refugees and new immigrants. The letters of support submitted on
    his behalf glowingly recount his many achievements, not the least of which is
    his familys adoption of two orphaned children. However, his criminal actions
    have eclipsed his previous legitimate and considerable personal and community
    achievements, including through SISO. His former sterling reputation is in
    tatters. While he orchestrated this large-scale fraud and reaped the prestige
    and benefits from leading a large non-profit corporation, it does not appear
    that Mr. Jafarpour profited from his actions in the same way that others did
    who were involved in the fraudulent scheme. Importantly, Mr. Jafarpour has steadily
    progressed in his rehabilitation, remaining steadily employed, and has not
    re-offended or otherwise stumbled in any way during the significant period that
    has elapsed since his release.

[55]

Having
    balanced all these factors, I am of the view that re-incarceration would not be
    in the interests of justice in this case.

[56]

Accordingly,
    I would grant the Crown leave to appeal sentence and allow the appeal, increase
    the sentence by two years, but stay the execution of the additional sentence.

C.

Disposition

[57]

I
    would dismiss Mr. Jafarpours appeal against his convictions.

[58]

I
    would grant the Crown leave to appeal against sentence, allow the sentence appeal
    and substitute a global custodial sentence of four years. For the reasons
    stated, I would stay the execution of the balance of the sentence of
    incarceration not yet served.

Released: May 2, 2019 KF

L.B.
    Roberts J.A.

I
    agree. K. Feldman J.A.

I
    agree. Fairburn J.A.





[1]
SISOs auditor, Tony De Luca, testified that the revenue and expenses that SISO
    claimed in 2008, 2009, and 2010 resulted in a surplus of $2.9 million. In his
    report, dated September 13, 2013 the exact figure is $2,954,196. Mr. De Luca
    was unable to opine as to CICs actual loss. He measured in each fiscal year
    from 2008 to 2010 the surplus SISO actually received by overclaiming, which may
    have resulted in a more conservative measurement of the fraud. For fiscal year 2010,
    Mr. De Luca calculated the surplus as $503,661. By examining the expenses,
    forensic accountant, Scott McBride, measured in just fiscal year 2010 the
    amount SISO claimed for reimbursement against actual expenses as $1.2 million.
    SISOs trustee in bankruptcy, Bradley Newton, testified at the sentencing
    hearing that CIC filed a proof of claim for $2.49 million and that SISOs
    claims against CIC for payment of legitimate invoices from 2010 totalled
    $2,052,000. CIC determined that $250,000 of SISOs claims were ineligible and
    refused to pay them in order to recoup the monies fraudulently overbilled by
    SISO. The trial judge accepted that 80% of SISOs revenues came from CIC and
    that most but not all the surplus could therefore be attributed to the fraud. 
    Eighty percent of the $2,954,196 surplus that accrued over the period from 2008
    to 2010 equals $2,363,356.80.


