



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boghossian, 2019 ONCA 169

DATE: 20190304

DOCKET: C61891

Rouleau, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Remy Boghossian, Raffi
    Ebrekdjian and
Siva Suthakaran

Appellant

Ravin Pillay and Domenic
    Basile, for the appellant

David Friesen, for the
    respondent

Heard: February 20, 2019

On appeal from the ruling of
    Justice Alfred J. OMarra of the Superior Court of Justice, dated August 31,
    2015, with reasons reported at 2015 ONSC 5364, and from the conviction entered
    on September 8, 2015, with reasons reported at 2015 ONSC 4851, and from the
    sentence imposed on March 29, 2016.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for fraud in excess of $5,000 and
    his sentence of three years imposed after an 11-day judge alone trial.

[2]

At the conclusion of the appeal, the panel dismissed the conviction
    appeal and, with the exception of the reduction of the fine in lieu of
    forfeiture, dismissed the sentence appeal with reasons to follow. These are
    those reasons.

[3]

The appellant and two co-accused, Remy Boghossian and Raffi Ebrekdjian,
    were participants in the negotiations of a stolen and forged TD Canada Trust
    (TD) bank draft in the amount of $1,895,751. On February 10, 2011, the
    fraudulent bank draft was deposited by Mr. Boghossian, a lawyer, into his trust
    account at the Royal Bank of Canada (RBC). The proceeds from the fraudulent
    bank draft were used that same day to acquire 22 kilograms of gold bars, and 19
    kilograms of gold bars the following day.

[4]

The trial judge found that the appellants main role in the fraud was to
    coordinate with an unidentified person in the TD branch from which the bank
    draft was stolen. The trial judge found that this inside person had facilitated
    the commission of the fraud. This accomplice would intercept and respond to any
    request for confirmation of the validity of the bank draft that might be sought.
    The appellant and his co-accused were also involved in picking up and
    attempting to sell the gold bars acquired with the fraudulently obtained funds.

(1)

The conviction appeal

(a)

Unreasonable verdict

[5]

On his conviction appeal, the appellant argues that the verdict was unreasonable.
    The appellant submitted at trial that he had been introduced to Mr. Boghossian
    by Mr. Ebrekdjian purportedly to structure an investment by Mr. Ebrekdjian in a
    hotel the appellant owned in Belleville. As the case against him was purely
    circumstantial, the appellant argued that the trial judge had to reject the
    Crowns theory and the conclusion that the guilt of the appellant was the only
    inference available from the evidence led at trial. The appellant maintains
    that the trial judge erred in rejecting the appellants alternate theory as to
    why he was in contact with Mr. Boghossian and Mr. Ebrekdjian. In relying on
R.
    v. McIver
, [1965] 1 O.R. 306, at p. 309 (Ont. H.C.), affd [1965] 2 O.R.
    475 (Ont. C.A.), affd [1966] S.C.R. 254, which was subsequently overruled by
    the Supreme Court of Canada in
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, the trial judge only took into account the evidence led at trial,
    and not the absence of evidence, when considering the inferences he could draw.

[6]

In
Villaroman
, at para. 36, the court explained that, in
    circumstantial cases, the inferences consistent with the innocence of an
    accused do not have to arise from proven facts and can instead arise from a
    lack of evidence. In the appellants submission, the trial judges reliance on
McIver
means that he did not consider the significant gaps in the evidence, including
    the fact that despite extensive investigation by TD and the police, no TD
    inside person was ever identified.

[7]

In addition, in assessing the evidence that was led, the trial judge
    made a factual error that placed the appellant at or near the TD branch while Mr.
    Boghossian negotiated the stolen bank draft at the RBC. This finding would
    support the alleged link between the appellant and the inside person. In fact,
    the cellphone records disclosed that the appellant was in Belleville, miles
    from the TD branch.

[8]

The appellant further argues that, properly assessed, the evidence
    should have led the trial judge to conclude that the alleged TD accomplice did
    not in fact exist, or at a minimum, that he had a reasonable doubt as to his
    existence. This would undermine the Crowns theory as to the appellants
    alleged role in the fraud and, as a result, also undermine the basis upon which
    the trial judge rejected his theory as to why he had been in contact with Mr.
    Boghossian and Mr. Ebrekdjian.

[9]

We disagree with the appellant. Although the trial judge erred in
    placing the appellant in the vicinity of the TD branch at the time the
    fraudulent draft was deposited at RBC, in our view, this error was minor and
    played a very limited role in the trial judges reasoning.

[10]

As
    for the legal test applied by the trial judge, we agree with the Crowns
    submission that the trial judges reasons, read as a whole, demonstrate that he
    was well aware of the need to consider both the evidence led at trial as well as
    the gaps in the evidence when deciding whether any reasonable alternative to
    guilt could be inferred. The reasons clearly reveal that the trial judge was
    alive to the fact that the inside person at TD was never found or identified.

[11]

We
    also see no error in the trial judges rejection of the suggestion that no
    inside person was involved in the fraud. His finding in that regard is
    reasonable and well-founded in the evidence.

[12]

The
    circumstantial case against the appellant was solidly anchored in the evidence,
    including:

1.

over 100 calls and text messages exchanged by the appellant with the
    phone purchased and used by Mr. Ebrekdjian during the critical three-day period
    surrounding the deposit of the fraudulent draft at RBC;

2.

the context of the messages themselves, including references to the
    banker and ur guy;

3.

the participation of the appellant in the sale of the gold bars that
    were acquired in the fraud; and

4.

the appellants unexplained attendance at a meeting with Mr. Boghossian
    and Mr. Ebrekdjian shortly after the fraud was perpetrated.

[13]

The extensive involvement of the
    appellant with his co-accused over the critical period was not adequately
    explained by the appellant, who did not testify, nor was it consistent with the
    very limited evidence in the record that might support the appellants theory
    that his involvement with the co-accused was strictly related to an investment
    in his Belleville hotel.

[14]

We therefore dismiss this ground of
    appeal.

(b)

The 11(b) ground

[15]

The appellant further argues that the
    trial judge erred in dismissing his application for a stay under s. 11(b) of
    the
Charter
because of the delay incurred in reaching trial.

[16]

In our view, this ground of appeal does
    not succeed. The trial ended just over 48 months from the date of the charge. As
    this case predates the Supreme Court of Canada decision in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, the
    trial judge applied the methodology from
R. v. Morin
, [1992] 1 S.C.R.
    771
,
to determine whether a stay should be imposed. The trial
    judge considered the various periods of delay, attributing much of it to the
    defence or finding it inherent or neutral. He assessed the overall
    institutional delay as 22 months, including 11 months in the provincial court
    and 11 months in the superior court, which is in excess of the
Morin
guidelines of 8 to 10 months in provincial court and 6 to
    8 months in superior court.

[17]

The trial judge then considered, and rejected,
    the appellants submission that he had suffered prejudice flowing from the
    delay, finding that the prejudice alleged by the appellant was principally the
    result of having been charged with the offence and the civil proceedings
    commenced by RBC.

[18]

The trial judge then concluded that the
    delay of four months in excess of the
Morin
guidelines was not unreasonable in light of the size and
    complexity of the case. He dismissed the s. 11(b) application.

[19]

The appellant argues that, viewed
    through the lens of
Jordan
, the delay
    in this case is well in excess of the presumptive

ceiling beyond
    which delays are deemed unreasonable. In his submission, the delay was not
    caused by him, but rather by his co-accused, and he was proactive in trying to
    move the matter forward. This is not, in his view, a case where transitional
    exceptional circumstances are capable of justifying the lengthy delay.

[20]

We disagree. In our view, this case
    falls squarely under the category of transitional exceptional circumstances
    recognized in
Jordan
: at
    para. 96
. This is not one of the narrow
    category of cases where the court will impose a stay under
Jordan
despite the delay having been found to be reasonable under a
Morin
analysis. As explained in
Jordan
,
    this narrow category of cases will include, for example, simple cases where the
    ceiling is vastly exceeded due to repeated mistakes or missteps by the Crown:
    at para. 98. These elements are not present in this case.

[21]

We agree with the Crown that the
    appellant did not, until shortly before the ultimate trial date was set, make
    any proactive efforts to have the trial held sooner.

[22]

Nor do we accept that the delay caused
    by the co-accused was excessive. The appellant never sought severance from his co-accused,
    nor do we consider that the limited delays in the case required the Crown to
    seek severance.

[23]

We also see no error in the trial judges
Morin
analysis, but for the error
    identified by the Crown that inured to the appellants benefit, as the trial
    judge overstated the institutional delay. Properly assessed, he ought to have assessed
    a portion of the time between the fixing of the date for the preliminary
    inquiry and the beginning of the preliminary inquiry as inherent because counsel
    required time to prepare. He ought to have made a similar assessment of the
    need for time to prepare for trial once the trial date was set. Had he done so,
    the 22 months of institutional delay would have been significantly reduced and
    would have been well within the
Morin
guidelines. This provides further support for this courts conclusion that the
    transitional exceptional circumstances applies in this case to justify the
    delay beyond the
Jordan
ceiling.

(2)

Sentence appeal

[24]

The appellant also seeks to appeal his
    sentence on the basis that, considering the limited role he played in the
    fraud, his three-year sentence is disproportionate with the three-year sentence
    imposed on Mr. Ebrekdjian and the three-and-a half-year sentence imposed on Mr.
    Baghossian.

[25]

We disagree. The trial judge determined
    that all three co-accused had cooperated in and were essential to the execution
    of the fraud, and he set the sentences accordingly. In respect of Mr.
    Baghossian, he determined that, as he was a lawyer and because of the role this
    status displayed in the fraud, an increase of his sentence by six months was
    appropriate. Therefore, on the trial judges findings, the sentences imposed were
    proportionate to the degree of responsibility of the appellant in the
    perpetration of the fraud. We would not interfere with this assessment.

[26]

The trial judge also imposed a $600,000
    fine lieu of forfeiture. The Crown acknowledges that this was made in error and
    that the appropriate amount is $27,678. In addition, the terms attached to the
    fine should be varied to provide the appellant with two years to pay after his
    release from incarceration and, in default of payment, provide for imprisonment
    for a term of one-year consecutive to his other term of imprisonment.

[27]

We agree that the fine in lieu of
    forfeiture must be varied as proposed.

Conclusion

[28]

In conclusion, the conviction appeal is
    dismissed and leave to appeal sentence is granted but, except for the reduction
    in the amount of the fine in lieu of forfeiture to $27,678, with two years to
    pay after the appellants release from incarceration and one-year imprisonment
    in the event of default, the sentence appeal is dismissed.

Paul Rouleau J.A.

G.T. Trotter J.A.

B. Zarnett J.A.


