



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badran, 2017 ONCA 353

DATE: 20170503

DOCKET: C58609

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fiona Badran

Appellant

Michael Moon and Leah Gensey, for the appellant

John Neander, for the respondent

Heard and released orally: April 27, 2017

On appeal from the conviction entered on October 26, 2012
    by Justice
Gisele M.
Miller of the Superior Court of
    Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was found guilty by a jury and convicted of fraud over
    $5,000; personating a police officer; transferring proceeds of crime; being a
    member of a criminal organization, instructing others to commit an indictable
    offence for the benefit of, at the direction of, or in association with a
    criminal organization; possession of property obtained by crime; and committing
    an indictable offence for the benefit of, at the direction of, or in
    association with a criminal organization. The latter two convictions were
    stayed on the basis of the
Kienapple

principle.

[2]

The appellant was sentenced to 32 months imprisonment after being given
    40 months credit for pre-trial custody, for a global sentence of six years
    imprisonment, in addition to a fine of $225,400 or three years imprisonment in
    lieu.

[3]

On appeal, the appellant submits that the trial judge erred in admitting
    expert evidence from a Crown witness regarding proceeds of crime and money
    laundering, erred in instructing the jury with respect to its use of circumstantial
    evidence, and erred in principle in ordering the appellant to pay a $225,400
    fine.

Did the trial judge err in permitting the Crown to call D/Sgt.
    Currie as an expert witness?

[4]

The appellant submits that the trial judge erred in allowing Detective Sergeant
    Currie to give evidence as an expert witness.  The appellant further submits
    that after telling the jury that she was not going to define proceeds of
    crime for the jury and that the expert witnesss evidence would assist the
    jury in understanding that term, the trial judge in effect did just that in her
    charge and the evidence of Detective Sergeant Currie was unnecessary.

[5]

The trial judge applied the appropriate test for the admission of expert
    evidence and concluded that his evidence respecting proceeds of crime and money
    laundering would be helpful to the jury. The appellant takes issue with her
    conclusion. The analysis in
R. v. Mohan
,
[1994] S.C.J. No. 36
    and
R. v. Abbey
, [2009] O.J. No. 3534 (leave to appeal refused, [2010]
    S.C.C.A. No. 125) necessarily reposes a good deal of confidence in the trial
    judges ability to discharge the gatekeeper function.  The trial judges
    discharge of that gatekeeper function deserves a high degree of respect.

[6]

Although objection was taken to the introduction of the expert evidence,
    once it was ruled admissible, there was no objection to the charge in this
    regard.

[7]

We see no error in the charge to the jury.  The trial judge used the
    phrase proceeds of crime in her charge as a shorthand way to refer to the
    wording of the indictment in the count that the appellant did transfer
    property, to wit money, knowing that it was obtained as a result of the
    commission in Canada of the designated offence of fraud over $5000.  Further,
    even if the expert evidence should not have been admitted, in the context of
    the overall trial, there was no prejudice to the appellant.

[8]

This ground of appeal and the appellants submissions related to it is
    dismissed.

Did the trial judge err in her charge to the jury on the use and
    effect of circumstantial evidence?

[9]

The appellant did not press this ground of appeal in oral argument.  The
    trial judges charge to the jury mirrors the model charge language and we see
    nothing in the factual background of this case that required something more.

[10]

Accordingly, this ground of appeal is also dismissed.

[11]

The conviction appeal is dismissed.

Did the trial judge err in imposing a fine in lieu of
    forfeiture under s. 467.37(3) of $225,400, or three years imprisonment in lieu
    thereof?

[12]

In sentencing the appellant, the trial judge adopted the average amount
    obtained from the monitoring of the call centre performed between February
    15-18, 2011 and used the information generated over those days to estimate the
    figure over the five month period that followed.

[13]

The appellant submits that this was an impermissible inference on the
    part of the trial judge and that the amount of the fine should not exceed the
    amount actually proven by the witnesses who testified.

[14]

The trial judge did not err in finding the Crown had proven the amount
    of the fraud by taking an average amount over the time period of monitoring
    (four days) and extrapolating from it. The same people came to work over this
    time period and the script for defrauding the victims was consistent.  Further,
    in determining the amount of the fine the trial judge did not attribute any
    amount to the appellant for her earlier participation in the fraud which began
    several months before February 2011.

[15]

Accordingly while leave to appeal sentence is granted the appeal as to
    sentence is dismissed.

Karen M. Weiler J.A.

K. Feldman J.A.

Grant Huscroft J.A.


