



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2018 ONCA 794

DATE: 20181002

DOCKET: C61911

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Marshall

Appellant

Gregory Lafontaine, for the appellant

Erica Whitford, for the respondent

Heard: September 28, 2018

On appeal from the conviction entered on October 26, 2015
    and the sentence imposed on March 18, 2016 by Justice Miriam Bloomenfeld of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of attempted fraud over $5,000 and sentenced
    to five months imprisonment and 30 months probation. He appeals conviction
    and seeks leave to appeal his sentence.

[2]

At the conclusion of the hearing of this appeal, we dismissed the appeal
    against conviction but allowed the appeal against sentence, with reasons to
    follow. These are our reasons.

[3]

The appellant was in the business of promoting concerts. He financed
    events by securing upfront funds from investors.

[4]

The appellant went to a branch of the TD Bank on December 2, 2013,
    accompanied by an accomplice named Patrick Lee, and another man known only as
    Ray. They were there to see the appellants long-time banker, Wassim Jami.

[5]

Mr. Lee testified at trial. He said that he was paid to impersonate Chua
    Hua Yong, a TD client with about $1,000,000 on deposit. Lee indicated that he
    wanted to transfer $600,000 into the appellants business account. He showed
    Mr. Jami false identification, which bore his photograph. Upon inspecting the
    fake ID, Mr. Jami became suspicious  the real Mr. Yong was 81 years old; Lee
    was only 44. When Mr. Jami left the room to make further inquiries, Lee and Ray
    fled. However, the appellant remained, and claimed to have no knowledge that
    anything was awry.

[6]

The appellant testified that the transaction that was to transpire at
    the bank had been arranged by another individual, who the appellant described
    as a known fraudster. The appellant denied any knowledge of a plan to defraud
    the bank. The trial judge provided detailed reasons for rejecting his evidence.

[7]

The trial judge found that there could be no doubt that an attempt to
    defraud the bank was perpetrated at the meeting described above. The only question
    was whether the appellant knew about the scheme. After examining all of the
    evidence, the trial judge found, at para. 64, that she was satisfied beyond a
    reasonable doubt, that Mr. Marshall set up this meeting at the bank intending
    to present Mr. Lee as Mr. Yong and, by doing so, deceive Mr. Jami into allowing
    at least $600,000 to be transferred from Mr. Yongs account to Mr. Marshalls
    business account.

[8]

The appellant challenges his conviction by raising a number of grounds
    of appeal focused on how the trial judge analyzed various pieces of evidence.
    More specifically, his counsel submits that the trial judges adverse
    credibility findings in relation to the appellant were unfairly harsh. Looking
    at her reasons as whole, we conclude that the trial judge approached the
    evidence in a fair and even-handed manner. We can identify no errors in her
    treatment of the evidence as a whole.

[9]

The appeal from conviction is dismissed.

[10]

The
    appellant seeks leave to appeal his sentence. Due to uncertainty in the law
    concerning the immigration consequences of a custodial sentence of six months
    or more, and at the invitation of defence counsel (not Mr. Lafontaine), the
    trial judge imposed a sentence of five months imprisonment, as opposed to an
    18-month conditional sentence. As the trial judge said in her reasons for
    sentence:

A conditional sentence in the range of 18 months to two years
    less a day may.potentially supply the necessary deterrence and denunciation,
    while simultaneously satisfying other pertinent sentencing principles. Given
    Mr. Marshalls specific circumstances however, and in accordance with the
    request made by his counsel during submissions, I am satisfied that
    proportionality, rehabilitation, deterrence and denunciation could also be
    addressed with a much shorter sentence involving actual incarceration.

[11]

In
    the meantime, the Supreme Court of Canada has clarified the law such that the
    concerns expressed by the trial judge (and defence counsel) about conditional
    sentences of six months or more have disappeared: see
R. v. Tran
, 2017
    SCC 50, [2017] 2 S.C.R. 289.

[12]

In light of this development, we would give effect to the trial
    judges observations about the suitability of a conditional sentence. We grant
    leave to appeal sentence, allow the appeal, and set aside the period of
    incarceration and substitute a conditional sentence of 18 months duration, on
    the terms upon which counsel have agreed. All other aspects of the sentence
    remain in effect.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


