



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Boghossian, 2017 ONCA 870

DATE: 20171114

DOCKET: C61549

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Remy Boghossian

Appellant

Erin Dann, for the appellant

David Friesen, for the respondent

Heard and released orally:  November 8, 2017

On appeal from the convictions entered on September 8,
    2015 by Justice A.J. OMarra of the Superior Court of Justice, and from the
    sentence imposed on March 29, 2016, with reasons reported at 2015 ONSC 4851.

REASONS FOR DECISION

[1]

The appellant, who is a lawyer, was convicted of a fraud in the amount
    of about $1.9 million.  He was sentenced to three and one-half years in the
    penitentiary.  He appealed both conviction and sentence.

The Conviction Appeal

[2]

It was common ground that the bank was defrauded.  From the appellants
    perspective, there was one factual issue in dispute  did the appellant know
    that his client Ali did not exist, or was the appellant duped by his
    co-accused as he testified in his evidence?  If the appellant knew Ali did not
    exist, there could be no doubt that the appellant was a party to the fraud.

[3]

After a summary of the evidence, the trial judge outlined the applicable
    legal principles at paras. 135-38.  He said, at para. 138:

In my view, there is a strong circumstantial case as outlined
    above from which reasonable inferences can be drawn that all three of the accused
    acted together to knowingly defraud the RBC by the presentation of a fraudulent
    TD bank draft in the amount of $1,895,751 to acquire gold.  However, are there
    other rational conclusions, or explanations from the evidence that raise a
    reasonable doubt?  The question is whether or not I am satisfied beyond a
    reasonable doubt as to their individual guilt considering all of the evidence
    through the assessment paradigm as set out in
R. v. W. (D.)
, [1991] 1
    S.C.R. 742.

1. If I believe
    the evidence of the accused or the evidence the accused relies on in support of
    his defence, I must acquit.

2. Even if I do
    not believe the accuseds evidence or evidence relied on in support of his
    defence, but I am left in a state of reasonable doubt or uncertainty, I must
    acquit.

3. Even if I am
    not left in doubt by the evidence of the accused or evidence relied on in
    support of his defence, I must consider whether I am convinced beyond a
    reasonable doubt of the accuseds guilt based on the balance of the evidence I
    do accept.

[4]

From paras. 138 to 170, the trial judge proceeded to a detailed review
    of the evidence, including the appellants evidence, organized by reference to
    the key events or key documents referred to in the evidence.  The trial judge
    made several findings of fact, all directed at whether the appellant knew that
    Ali did not exist.  He provided explanations for those findings.  His ultimate
    conclusion appears at para. 171 of his reasons:

I do not accept Remy Boghossians evidence that he was a dupe
    manipulated by Ebrekdjian and others.  I am satisfied beyond a reasonable doubt
    that Remy Boghossian was a knowing participant in the presentation of the
    fraudulent bank draft to the Royal Bank of Canada on February 10, 2011, and
    subsequently possessed gold knowing it had been obtained by a criminal offence.

[5]

Our review of the reasons reveals no reversal of the burden of proof by
    the trial judge.  In fact, as acknowledged on the appeal, the trial judge
    properly identified and described the burden of proof at least twice in his
    reasons.  In our view, the trial judge did not convict the appellant because he
    disbelieved the appellant, but rather he disbelieved the appellant because, on
    the totality of the evidence, he was satisfied beyond a reasonable doubt that the
    appellant knew that Ali did not exist.

[6]

We also cannot accept the submission that the trial judge drew
    speculative inferences from some of the evidence.  While we agree that there
    were pieces of evidence that may have admitted of exculpatory inferences, it
    was ultimately for the trial judge to decide what inferences should be drawn from
    any particular piece of evidence.  The inferences that he drew were reasonably
    available to him on the evidence.

[7]

It is not surprising in a case of this sort that the trial judge did not
    address each and every piece of evidence separately in his reasons.  He is not
    obliged to do so.  The trial judge clearly had a full command of the evidence. 
    This is not a case in which it can be said that the trial judge failed to
    consider evidence that was central to a contested issue or issues.  To the
    contrary, the trial judges reasons focused on the only contested issue  did
    the appellant know that Ali did not exist?

[8]

For the above reasons, we would dismiss the conviction appeal.

The Sentence Appeal

[9]

The sentence imposed of three and one-half years was well within the
    range appropriate to a large-scale fraud such as this.  Counsel submits that
    the appellant should have received the same sentence that was imposed on his
    co-accused.  Each received three years.  In our view, the extra six months
    awarded the appellant does not raise parity concerns.  The appellant was a
    lawyer.  His status as a lawyer and the role his status as a lawyer played in
    the commission of the offence justified treating this as an aggravating factor,
    warranting a somewhat higher sentence for the appellant.  We see no error in
    the sentence imposed.

[10]

The
    sentence appeal is dismissed.

[11]

We wish to make it clear that we were able to deal with this appeal,
    a matter of some complexity, expeditiously in large measure because the trial
    judges reasons were so thorough and carefully done.


G.R. Strathy C.J.O.

Doherty J.A.

D. McCombs J. (
ad hoc
)


