





CITATION:
R. v. Bychkov, 2011 ONCA 361



DATE: 20110506



DOCKET: C50980-C50981



COURT OF APPEAL FOR ONTARIO



Doherty, Goudge and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Yury Bychkov and Andrei Voitishin



Appellants



Sonya Shikhman, for the appellant, Bychkov

Aaron Wine, for the appellant, Voitishin



Emile Carrington, for the respondent



Heard:  May 5, 2011



On appeal from the convictions entered by Justice J.
          Fairgrieve of the Ontario Court of Justice dated June 17, 2009 and the
          sentences imposed on September 4, 2009.



APPEAL BOOK ENDORSEMENT



[1]

In our view, the convictions are unreasonable.  Absent some admissible
    explanation about the operation of the equipment used and its capacity to
    gather the financial information necessary to be used in the commission of a
    fraud on the bank, the verdicts were unreasonable.  Officer Rochon could give
    evidence identifying the objects seized but was not qualified to offer evidence
    as to how the equipment operated so as to permit capture of the financial data.

[2]

The appeal is allowed.  The convictions are quashed and acquittals
    entered.

[3]

Having regard to the acquittal on the fraud charge and the trial judges
    treatment of Mr. Bychkovs pre-trial bail conditions, we think an appropriate
    sentence on the driving while disqualified charge is time served (nine days). 
    The probation order is set aside.

[4]

The appeal is allowed and sentence varied accordingly.


