



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kanagarajah, 2014 ONCA 513

DATE: 20140630

DOCKET: M43890 (C56562, C56593, C56594 and C57374)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Rajitha
    Kanagarajah, Ramanan Kenegarajah, Anantha

Neeranjan and Kuhen Neshan

Applicant/Appellant

Ian Scott, for Rajitha Kanagarajah

Paul J.I. Alexander, for Ramanan Kenegarajah

Michael Dineen, for Anantha Neeranjan

Mark Halfyard, for Kuhen Neshan

Molly Flanagan, for the respondent

Heard: June 10, 2014

On motion for an order appointing counsel under s. 684 of
    the
Criminal Code
, R.S.C. 1985, c. C-46.

Juriansz J.A.:


[1]

Each of the four appellants applies for an order appointing counsel
    under s. 684 of the
Criminal Code
, R.S.C. 1985, c. C-46. They are
    extended family members who were tried as co-accused on over 100 offences
    related to conspiracy, fraud, money laundering and identity theft. The two men,
    Mr. Kenegarajah and Mr. Neshan, were convicted of many of the counts. The two
    women, Ms. Kanagarajah and Ms. Neeranjan, were convicted of two and three
    counts respectively. Notably, all were convicted of participating in a criminal
    organization between 2005 and 2010.

[2]

After credit for time served, Mr. Kenegarajah was sentenced to six
    years' imprisonment, Mr. Neshan to five and a half years' imprisonment, and Ms. Kanagarajah
    and Ms. Neeranjan received 18-month conditional sentences with house arrest.
    None are now in custody. They are separately represented and their s. 684(1)
    applications are interrelated on some of the issues. Mr. Kenegarajah and Mr.
    Neshan are appealing only some of the many counts of which they were convicted.

[3]

An applicant under s. 684(1) must satisfy the court that it appears
    desirable in the interests of justice that he or she should have legal
    assistance and that he or she does not have sufficient means to obtain that
    assistance.

[4]

Where, as here, it is conceded that the applicants lack sufficient means
    to retain counsel, the applicants, relying on
R. v. Bernardo
(1997
)
,

121 C.C.C. (3d) 123 (C.A.),
    submit the interests of justice involve only two considerations: whether the
    applicant advances arguable grounds for appeal, and whether the applicant can effectively
    advance the grounds of appeal without the assistance of counsel.

[5]

In
Bernardo
, Doherty J.A. observed that the useful list of
    factors indicated in earlier cases reflects these two principles. On my reading,
    he did not intend to exclude the factors indicated in the earlier cases from
    consideration. For example, one of the cases he cited,
R. v. M. (A.)
(1996),
    30 O.R. (3d) 313 (C.A.) (per Austin J.A.), lists the seriousness of the
    matter as one of the factors to be considered. Justice Doherty considered this
    factor at para. 27 of
Bernardo
, stating that [t]he seriousness of the
    offences and sentences imposed work in the appellants favour on this motion.
    This is consistent with decisions of the courts of appeal of British Columbia
    and Saskatchewan:
R. v. Butler
,
2006 BCCA 476,
R. v. Lerioux
, 2014 SKCA 60.

[6]

In another case cited in
Bernardo
,
R. v. LeCompte
,
    [1997] O.J. No. 987 (C.A.), Laskin J.A. took into account the serious
    consequences that a dismissal of the appeal would have for the applicant. I
    note that at para. 27 of
Bernardo
, Doherty J.A., rather than
    dismissing the argument as irrelevant, considered and dealt with the argument
    the appeal would have no practical consequences for the appellant.

[7]

The Crowns position is that the applications should be dismissed
    because the proposed grounds of appeal do not have sufficient merit to warrant
    the appointment of counsel. The Crown concedes that if I find the proposed
    grounds of appeal have sufficient merit I should allow the applications.

[8]

I have already indicated that, in my view, a number of factors may be
    relevant to whether it is in the interests of justice that an accused have
    legal assistance under s. 684. In the circumstances of this case, I accept that
    the determinative factor is the merit of the appeals.

[9]

I consider the applications and grounds of appeal in the order in which
    they were advanced.

(1)

Ms. Neeranjan

[10]

Counsel
    for Ms. Neeranjan submits she has two arguable grounds of appeal.

[11]

Ms.
    Neeranjan was convicted of possession of property obtained by crime. Counsel
    submits the trial judge erred by reversing the burden of proof with regard to
    whether she had knowledge of the criminal activities of her husband,
    Mr. Neshan. I do not regard this ground of appeal as arguable. The reasons
    of the trial judge, when read as a whole, amply support his conclusion that
    the evidence points to her knowledge of the criminal conduct of Neshan and
    Kenegarajah.

[12]

Counsel
    for Ms. Neeranjan submits that she should not have been convicted of participating
    in a criminal organization as the evidence did not establish her involvement in
    an activity that resulted in a direct or indirect benefit to the group. She was
    convicted only of two counts of possession of property obtained by crime based
    on knowledge of or willful blindness to her husbands activities. Crown counsel
    concedes this is an arguable ground of appeal. In my view, it is desirable in
    the interests of justice that she be represented on this ground of appeal.

(2)

Mr. Kenegarajah

[13]

Counsel
    for Mr. Kenegarajah submits that some of the counts of which Mr. Kenegarajah
    was convicted offend the single transaction rule in s. 581(1) of the
Code
.
    Mr. Neshan also advances this argument. For example, count one alleged the
    involvement of all of the accused in the offence of fraud over $5000 between
    2001 and 2010; counts 3-10 and 64 alleged the involvement of Mr. Kenegarajah
    and Mr. Neshan in fraudulent activities and personation between 2001 and 2010;
    and count 92 alleged the involvement of all accused in money laundering between
    1997 and 2010. Counsel submits that the wording of the Information, which
    includes an extended timeframe of almost a decade, offends the single
    transaction rule and that the charges ought to have been quashed.

[14]

The
    trial judge provided detailed reasons for rejecting this argument. He observed
    that the Crown alleged that the means of the fraudulent activity were consistent
    throughout the periods in question and represented a continued course of
    conduct that effectively amounted to a global operation. He concluded that each
    of the impugned counts alleged a single transaction. In my view, the applicants
    do not have an appreciable prospect of persuading a panel of this court to
    interfere with the trial judges conclusion.

[15]

Mr.
    Kenegarajah also submits that the trial judge erred in convicting him on counts
    1 and 92 as these counts were overbroad. These counts alleged time frames of 9
    and 13 years respectively, and there was no admissible evidence of Mr.
    Kenegarajahs participation until the last two years of the range. Counsel
    points out that Mr. Kenegarajah was not even in the province of Ontario until
    April 2008.

[16]

In
    my view, this ground is not arguable. The evidence established
    Mr. Kenegarajahs involvement as early as 2001 in Ontario and the trial
    judge explained why he could consider Mr. Kenegarajahs activities in British
    Columbia.

[17]

Finally,
    counsel for Mr. Kenegarajah points out that a criminal organization means a
    group composed of at least three persons. Ms. Neeranjan, as discussed above,
    has an arguable appeal that she should not have been found to be a member of a
    criminal organization. Counsel for Mr. Kenegarajah argues that Ms. Kanagarajah,
    like Ms. Neeranjan, should not have been found to be a member of a criminal
    organization. That would leave only Mr. Kenegarajah and Mr. Neshan, an
    inadequate number to establish a criminal organization.

[18]

I
    do not regard the submission as arguable as there was evidence to support the
    trial judges finding that Ms. Kanagarajah was a member of a criminal
    organization. She herself was convicted of fraud to support the purchase of a
    property. The trial judge found she tendered or knowingly allowed Mr. Neshan
    and Mr. Kenegarajah to tender a forged letter, purportedly from her employer, to
    the mortgagee. She collected the rent from the tenant, and the trial judge
    found the property was one used by the criminal organization as a means to
    launder money.

(3)

Mr. Neshan

[19]

Mr.
    Neshans application is based on the same submissions as that of Mr. Kenegarajah.
    His application fails for the reasons given in regard to Mr. Kenegarajahs
    application.

(4)

Ms. Kanagarajah

[20]

Ms.
    Kanagarajahs submission that she should not have been convicted of being a
    member of a criminal organization is not arguable, as discussed above.

[21]

Counsel
    for Ms. Kanagarajah submits that while the forged employment letter that was
    used to obtain a mortgage bore her name, there was no evidence that she
    actually commissioned the production of or tendered the forged document to the
    bank for its truth. However, there was much evidence linking her to the
    criminal enterprise. The property was in her name and she collected the rent
    from the tenant occupying the property by meeting him in a restaurant. When the
    police executed a search warrant at 21 Rockport Drive, they encountered her
    inside. A new Mercedes Benz parked at the house had been leased in her name by
    a compromised credit card.  The police seized a Blackberry connected to her
    that revealed over 1000 calls to financial institutions. The trial judge
    explained why he connected this and other incriminating evidence to her and not
    to her husband, Nesarajah, who was acquitted. Against the backdrop of this
    evidence, my view is that Ms. Kanagarajah has slim prospects of persuading a
    panel of this court that the trial judge erred by inferring that she tendered
    or knowingly allowed Mr. Neshan and Mr. Kenegarajah to tender the forged
    letter.

Conclusion

[22]

The
    applications of Ms. Kanagarajah, Mr. Neshan and Mr. Kenegarajah are dismissed.
    Ms. Neeranjans application is allowed and counsel will be appointed to
    represent her in her appeal of her conviction of participating in a criminal
    organization.

R.G. Juriansz J.A.


