



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zirkind, 2019 ONCA 401

DATE: 20190516

DOCKET: C63942

Hourigan, Paciocco, and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Zirkind

Appellant

Edward Prutschi, for the appellant

Jennifer Conroy and Kerry Benzakein, for the respondent

Heard: May 7, 2019

On appeal from the convictions entered on January 16,
    2017 by Justice Todd Ducharme of the Superior Court of Justice and from the
    sentence imposed on June 29, 2017.

REASONS FOR
    DECISION

[1]

The appellant was convicted of one count of trafficking in property
    obtained by crime (contrary to s. 355.2 of the
Criminal Code
) and one
    count of possession of property obtained by crime (contrary to s. 354(1) of the
Criminal Code
) following a judge alone trial after police discovered
    $1,136,555.00 in cash in his car. The primary issue at trial was whether the
    Crown had proven beyond a reasonable doubt that the appellant knew of the
    criminal origins of the funds. The appellant testified on his own behalf. He
    was convicted and sentenced to 4 years imprisonment. He appeals from both his convictions
    and sentence on the grounds that the trial judge erred by:

1.       Failing to properly apply the principle from
R v. W.(D.)
,
    [1991] 1 S.C.R. 742;

2.       Failing
    to provide sufficient reasons for conviction; and

3.       Imposing a sentence that was grossly disproportionate to the
    offence in these circumstances.

[2]

For the following reasons, we would dismiss the appeal from conviction,
    grant leave to appeal the sentence but dismiss the appeal from sentence.

The Facts

[3]

An extensive Agreed Statement of Facts formed a large part of the
    evidence at trial.

[4]

On February 23, 2014, the appellant flew from Montreal to Toronto on a
    one-way ticket and rented a car. For several days prior, the appellant had been
    communicating through phone calls and text messages with a man named Justin
    Soon to arrange a meeting in Toronto. Justin Soon was under surveillance and his
    calls and text messages were being intercepted by police in furtherance of a
    drug investigation.

[5]

The meeting between Mr. Soon and the appellant ultimately took place in a
    parking lot at the Yorkdale Mall on the afternoon of February 23, 2014. The police
    had Mr. Soon under surveillance at that time. The police saw Mr. Soon get out
    of his car with a black and red duffle bag and get into the appellants rental
    car. Mr. Soon got out of the car a few minutes later and walked back to his car
    without the bag.

[6]

Later that night, an OPP officer stopped the appellants car, which was
    travelling eastbound on Highway 401, shortly before 10:30 p.m. The OPP officer
    testified that he stopped the appellant for speeding, in what he described as a
    routine traffic stop. As a result of the officers observations of and
    interaction with the appellant, the appellant was arrested for possession of property
    obtained by crime and the vehicle was searched. The money was found in a number
    of bags in the car. The bags, the money, and several surfaces in the car
    (including the glove compartment, drivers control surfaces, back seat and
    trunk) tested positive for the presence of cocaine.

[7]

The Agreed Statement of Facts stipulates that $250,170 found in the red
    and black duffle bag obtained from Mr. Soon was derived from cocaine
    trafficking.

[8]

The appellant testified at trial. The appellant is an orthodox Lubavitch
    Jew. He admitted that he was transporting money and that he had done this a few
    times previously. He denied knowing that the money was property obtained by crime.
    Rather, he testified that he believed the money was Shoah Gelt, that is,
    money belonging to Jewish people living in Europe or Asia who believed there
    would be another Holocaust and who wished to move their money to a place of
    safety so that it would not be confiscated as it was during the first Holocaust.

[9]

The appellant testified that he had agreed to transport the money at the
    request of a man named Avrum Reish. The appellant agreed and was honoured to
    do so, describing the task as a great mitzvah or commandment from God.

[10]

The
    appellant testified that he had travelled from Toronto to Montreal to transport
    money on three or four prior occasions. He testified that he never flew back to
    Montreal with the money because he was afraid that the money would be
    discovered or lost. The people he met in Toronto who gave him the money had no
    obvious signs of being Jewish, but the people to whom he gave the money in
    Montreal appeared to be orthodox Jews.

[11]

In
    cross-examination, the appellant agreed that Avrum was a stranger and had
    approached him unsolicited. He admitted that he made no inquiries about Avrum
    or asked for details about where the money would end up. He never asked any
    questions about how the money came into Canada and stated that he did not have
    a telephone number for Avrum. He did not remember if he had tried to reach
    Avrum after his arrest but testified had not heard from him since his arrest.

The Decision Below

[12]

The
    trial judge began by summarizing the events leading up to the appellants
    arrest. He referred to the Agreed Statement of Facts, noting that $1,136,555
    was found in the appellants car, and that a portion of that money (i.e. the
    money found in the black and red duffle bag, totalling $250,170) was admitted
    to be property obtained by crime. He identified the primary issue in the case
    as being whether the Crown had proven beyond a reasonable doubt that the
    appellant was knowingly in possession of property obtained by crime. A
    secondary issue was whether the Crown had established beyond reasonable doubt
    that all of the money found in the car (i.e. other than that in the red and
    black duffle bag) was property obtained by crime.

[13]

The
    trial judge then proceeded to review and consider the appellants testimony.
    The trial judge began by rejecting the suggestion that Avrum was, in fact,
    moving money on behalf of Jews living in Europe or Asia because (1) the money
    from Mr. Soon was admitted to be the proceeds of cocaine trafficking; and (2)
    it was incredible that, had that been the case, the appellant would not have
    been contacted following his arrest by Avrum or the Jews to whom the money
    belonged to find out what had happened to the money.

[14]

The
    trial judge then focussed directly on the question of whether the appellant
    believed that the money he was moving was actually Shoah Gelt rather than the
    proceeds of crime. The trial judge referred to
W.(D.),
and provided
    six reasons for rejecting the appellants testimony, including the appellants
    failure to make any inquiries about Avrum and the fact that it was simply
    unbelievable that people who did not know the appellant would give him such
    large amounts of cash. The trial judge also stated that he disbelieved the
    appellants claim that he had no way of contacting Avrum and found that the
    appellants inability to remember any of the details about the people he met in
    Toronto or Montreal was feigned. The trial judge found that none of these
    issues in the appellants evidence were explained by his religious beliefs.

[15]

The
    trial judge then concluded that the appellants testimony did not leave him
    with any reasonable doubt that he knew what was going on, for the same reasons the
    trial judge had provided for rejecting the appellants evidence. Finally, the
    trial judge stated that turning to the rest of the evidence, particularly the
    admissions in this case, I am satisfied beyond a reasonable doubt as to the
    guilt of [the appellant].

The Conviction Appeal

(1)

Did the trial judge err in his application of
W.(D.)
?

[16]

We
    find no merit in the appellants submission that the trial judge failed to
    properly apply
W.(D.)
. The trial judge expressly referred to
W.(D.)
before he turned to consider the appellants evidence. His analysis is
    structured according to, and follows, each of the three components of the
W.(D,)
test.

[17]

The
    trial judge explained clearly why he rejected the appellants evidence that he
    believed he was transporting Shoah Gelt, and provided six cogent reasons for
    doing so. He then found that the appellants evidence, even though not
    believed, did not raise reasonable doubt for those same six cogent reasons.

[18]

We
    do not agree with the appellants submission that in arriving at these
    conclusions the trial judge erred in his application of the principles in
W.(D.)
because he failed to properly engage with appellants religious beliefs,
    and how those religious beliefs would impact his knowledge as to the criminal
    origins of the funds. The trial judge reviewed the appellants testimony as to
    his religious beliefs in some detail. In rejecting the appellants testimony 
    and in finding that he was not left with reasonable doubt as a consequence of
    this testimony  the trial judge explained that none of the issues in the
    appellants evidence were explained by his religious beliefs. We do not see any
W.(D).
error in this regard.

[19]

The
    trial judge then went on to consider the third
W.(D.)
requirement. He stated:

Thus, as [the appellants]
    testimony does not leave me with a reasonable doubt, turning to the rest of the
    evidence, particularly the admissions in this case, I am satisfied beyond a
    reasonable doubt as to the guilt of [the appellant].

[20]

We
    do not agree with the appellants submission that the trial judge erred in
    respect of his analysis at this third limb of
W.(D).
He demonstrated
    an appreciation that it would be improper to convict based on the rejection of
    the appellants evidence, and acknowledged that for a conviction there must be
    sufficient proof in the evidence he does accept to establish the accuseds
    guilt beyond a reasonable doubt. In our view, the appellants argument is
    essentially that the reasons in this respect are insufficient (an argument we
    address below).

(2)

Were the trial judges reasons insufficient?

[21]

We
    do not agree with the appellants submission that the trial judges reasons
    were insufficient in the circumstances of this case, though they were brief as
    they relate to the last
W.(D.)
consideration.

[22]

The
    brevity of the trial judges reasons raise two concerns. Of particular concern
    is the trial judges failure to indicate what evidence grounded his finding
    that the third limb of
W.(D.)
had been satisfied and that the Crown
    had established beyond a reasonable doubt that the appellant knew he was
    transporting property obtained by crime.

[23]

The
    first and broader question is whether the reasons are sufficient to explain to
    the appellant why he was convicted and to permit effective appellate review:
R
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-25, 55;
R
    v. R.E.M.,
2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-17. Where the
    trial judges reasons  read in conjunction with the evidence and submission at
    trial  make clear how the trial judge arrived at his or her decision, the
    reasons will be sufficient:
R.E.M.,
at para. 16.

[24]

The
    context of this trial was that the Crowns case, in the absence of or upon rejecting
    the appellants evidence, was strong and largely contained in the Agreed
    Statement of Facts. This was acknowledged by defence counsel at trial (not
    counsel on this appeal):

Defence Counsel
:
In relation to the third branch of
W.D.
its  its a little bit more difficult an argument
[]

What if it was a different trial and he never testified? You
    have all the same evidence but not his testimony. Instead I called a
    sociological expert in Hasidic Jewry who testified about the way the Hasids are
    raised and how

The Court:
It would be a lot easier to convict him []

Defence Counsel:
Right. No, you would only be left with
    the evidence you have in front of you

The Court:
I mean  the argument cant be that hes a
    Lubavitch Jew and therefore hes not going to commit a crime.

Defence Counsel:
No its not.

The Court:
At least thats not an argument that flies
    with me. So, it seems to me if you get  if you  if the Crown gets me to the
    third branch of
W.D.
, where I have rejected he believes this is Shoah
    money then

Defence Counsel:
Like I said, Your Honour

The Court:
I think you have a problem.

Defence Counsel
:
its
    not a powerful submission.
[Emphasis added.]

[25]

This
    short trial focused on the appellants knowledge. Defence counsel in the above
    passage recognizes that the totality of the evidence amounted to a strong
    circumstantial case that the appellant did know that he was transporting property
    obtained by crime. There was overwhelming circumstantial evidence in this
    regard. This includes the cocaine residue found in the car, on the bags, and on
    the money, the evidence from the OPP officer about how nervous the appellant
    was during the traffic stop, and the secretive means by which the appellant
    transported the money. While proof of a particular state of mind (here,
    knowledge of the criminal origins of the funds) will almost always be based on
    circumstantial evidence, the only reasonable inference on the strength of the
    evidence at trial was that the appellant knew that he was transporting proceeds
    of crime. The trial judges reasons  read in light of the evidence and
    submissions at trial  are adequate both to explain the result and to permit
    effective appellate review.

[26]

The
    second concern raised by the brevity of the trial judges reasons at the third
    stage of
W.(D).
is whether the trial judge based his findings of guilt
    on inferences invited by the trial Crown counsel (not counsel on this appeal)
    that are legally controversial. The Agreed Statement of Facts stipulated that
    the appellant had travelled between Canada and the United States, on trips of
    short duration, 36 times between January 2011 and February 2014. Of those 36
    trips, 13 trips featured a same day departure and return. The Agreement
    Statement of Facts further stipulated that the appellants average yearly
    income (as reported on his tax returns for 2008 to 2012) was $34,912. However,
    between 2009 and February 2014, the appellant had made over $2 million in
    payments to his various credit cards. In her closing submissions, the trial
    Crown suggested that the appellants travel patterns were consistent with him
    acting as an illegal courier and that his credit card payments suggested he had
    an undeclared source of income. She suggested that this evidence supported the
    inference that the appellant was knowingly transporting property obtained by
    crime. The reasoning she invited depends on the inference that the appellant had
    engaged in illegal activity on other occasions and used criminal proceeds to
    make his credit card payments, and that this past criminal conduct shows that
    he knew he was transporting criminal proceeds when arrested. The Crown needed
    to bring an application to use this presumptively inadmissible reasoning, but
    had not done so. Had the trial judge applied this reasoning he would have
    erred.

[27]

However,
    upon a review of the transcripts of proceedings, it is clear that the trial
    judge was alive to the potential dangers associated with this evidence. The
    trial judge not only expressed scepticism as to the import of this evidence
    during the trial Crowns closing submissions, but also said to defence counsel
    I dont need [] to hear about that when defence counsel started reply
    submissions on the appellants travel history, and told defence counsel not to
    worry about trial Crowns submissions on the credit card transactions.

[28]

In
    light of the submissions at trial, and the back and forth between counsel and
    the trial judge, we are satisfied that the trial judge did not base his finding
    of guilt on legally controversial inferences.

The Sentence Appeal

[29]

We
    also disagree that the 4 year custodial sentence imposed was manifestly unfit.
    We see no error of fact or error in principle that would justify appellate
    intervention in this case.

[30]

The
    appellant argues the trial judge erred in rejecting the appellant was a mere
    courier which, had this submission be accepted below, would have been a
    mitigating factor. We disagree. The trial judges finding that the appellant
    was not a mere courier was amply supported by the record.

[31]

Contrary
    to the appellants submission on appeal, the record also strongly supports the
    trial judges finding that the appellant was motivated by profit and was aware
    that he was transporting money obtained from drug tracking.

[32]

The
    trial judge identified and applied the principles set out in
R v. Rosenfeld
,
    2009 ONCA 307, 94 O.R. (2d) 641. He noted that the primary sentencing
    objectives were deterrence and denunciation. He considered the relevant
    similarities and differences between
Rosenfeld
and the case at bar. Again,
    we see no error in principle that could justify intervention with the sentence
    imposed.

Disposition

[33]

The
    appeal from conviction is dismissed. Leave to appeal sentence is allowed but
    the appeal from sentence is dismissed.

C
.W. Hourigan J.A.

David M. Paciocco
    J.A.

A Harvison Young J.A.


