



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jassem, 2019 ONCA 162

DATE: 20190301

DOCKET: C61009

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rusol Jassem

Appellant

Richard Litkowski, for the appellant

Andrew Cappell, for the respondent

Heard: February 26, 2019

On appeal from the conviction and the sentence imposed on
    August 18, 2015 by Justice Edward Kelly of the Ontario Court of Justice.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted of attempted fraud over $5,000 (contrary to
    s. 380(1) of the
Criminal Code
) and public mischief (contrary to
    s. 140(1) of the
Criminal Code
). The convictions arise out of the
    appellants purportedly false report to police and her insurer that her car had
    been stolen.

[2]

On appeal, the appellant argues that the trial judge erred by
    misapprehending evidence and by drawing an adverse inference from the appellants
    failure to call her father or brother to testify at trial.

Facts/Background

[3]

The appellant, a student, claimed to have purchased a used 2008 BMW 535i
    (the BMW) on December 20, 2010 for $34,000. She claimed to have purchased the
    car from a man named Wissam Abudayyeh, who was a friend of her brother. She
    testified that her father paid $16,000 towards the purchase of the car, and
    that she paid the remainder of the purchase price with cash she had previously
    withdrawn in smaller increments from her OSAP monies.

[4]

On August 6, 2011, she reported to the police that the BMW had been
    stolen from a plaza parking lot. She had traveled from Brantford to Toronto
    with her brother and her child and reported that the car was stolen from a
    parking lot while they were eating out and shopping. The car was never located.
    She subsequently filed an insurance claim with Desjardins General Insurance
    Group (Desjardins) for $38,420. Desjardins investigated the claim. When a BMW
    technician scanned the computer chip in the appellants car key (which she
    testified was the only key she had for the BMW) it revealed that the key had
    last been used to enter the vehicle on April 20, 2010  eight months before the
    appellant purportedly purchased the car and the day after the vehicle was
    involved in an accident in the United States (prior to being imported into
    Canada). Desjardins eventually denied the insurance claim and the appellant was
    charged criminally.

[5]

In the course of trial, the parties entered into an agreed statement of
    facts. Among other matters, the parties agreed that Jasbir Seeder, the owner
    and operator of Seeder Auto Centre, conducted a vehicle emissions test on the
    BMW on February 17, 2011. A person who identified himself as Mustafa brought
    the vehicle to Seeder Auto Centre and paid for the emissions test. At the time,
    the vehicle did not have licence plates. The mileage was 80,901 kilometers. The
    vehicle key had to be in the ignition to do the emission test. That factor
    conflicts with the analysis of the key surrendered by the appellant that indicated
    her key had not been used since April 20, 2010.

Trial Judges Reasons

[6]

After engaging in a lengthy review of the evidence and setting out the
    principles from
W.(D).
, the trial judge concluded that the appellant
    was not a credible witness. He found that she was an unresponsive witness and
    that her testimony at trial was inconsistent with her explanations prior to
    trial and the other evidence. Much of her testimony was simply implausible.
    The trial judge noted the following, specific areas of concern with respect to
    her evidence:

(i)

The purchase financing

The appellant had testified that she received a
    $27,000 lump sum payment from OSAP, but this was not reflected in her banking
    records. It made no sense that the appellant would pay for the vehicle by
    making several cash withdrawals that she then kept in a bag in her home.

Further, it did not make sense that the appellant
    would pay with cash, rather than certified cheque or money order, given that
    she did not know Abudayyeh, the purported seller of the car, well.

(ii)

The vehicle purchase

The trial judge acknowledged that the Abduayyehs
    testimony was internally consistent However, the seller had testified that he
    received $34,000 in cash from the appellants father, which did not corroborate
    the accuseds account of the purchase and her financial contribution to the
    purchase. Further, it was also necessary to carefully scrutinize Abduayyehs
    evidence in light of the February 17, 2011 emissions report from Seeder Auto,
    the key scan report and the appellants failure to produce any bill of sale.

(iii)

The vehicle registration

It was not plausible that the odometer reading would
    increase by 35,000 kilometers from December 20, 2010 when she testified she
    first registered the vehicle to the next registration by her on February 23,
    2011.

(iv)

The February 17, 2011 emissions test

The appellant had no explanation for the February 17,
    2011 emissions test and how a person unknown to her had taken the car for that
    test. Moreover, the fact that the vehicle did not have plates at the time of
    the test suggested it was not being operated at that time.

(v)

Inconsistencies in timeline

There were inconsistencies in the timeline leading to
    the theft of the car, as reported to police. While the appellant told police
    she arrived at the plaza at approximately 6:30 p.m. and went to Popeyes, the
    receipt from Popeyes that the appellant provided to the Desjardins
    investigators showed that her meal was not purchased until 8:02 p.m.

(vi)

Failure to produce bill of sale

The trial judge found that it was not believable that
    that the insurance investigators would not have requested a bill of sale for
    the vehicle, or that the appellant would not realize she would have to submit
    such documentation in support of her claim.

[7]

For these reasons, the trial judge concluded that the appellants
    testimony did not raise reasonable doubt as to her guilt.

[8]

The trial judge then considered the evidence tending to establish the
    appellants guilt. He concluded that the key scan evidence (showing that the
    key had not been used to access the car since April 20, 2010) was reliable and
    highly probative and that there was no reason to believe the system was
    malfunctioning. He found that the key provided by the appellant had not been
    used to enter or operate the vehicle after April 20, 2010. As a result, the
    trial judge had no doubt that the appellant was lying about the theft.

[9]

The trial judge further concluded that  even in the absence of the key
    scan report  there was sufficient evidence to establish the appellants guilt
    beyond a reasonable doubt. In this vein, the trial judge relied primarily on
    the February 17, 2011 emissions test, which the appellant had failed to explain.
    In this context, the trial judge noted that the appellant had not called her
    father or brother to testify, and made the following observation:

The accused did not call her
    father or brother to testify. There is no onus on the defence to produce evidence
    to corroborate the accuseds testimony. It is impermissible to draw an
    inference of guilt from the failure of the defence to call material witnesses.
    However, an inference may be drawn that the witnesses evidence would not have
    been favourable to the defence. The accused simply did not offer any meaningful
    response to the emissions test evidence which contradicted her assertions that
    she had active control over the car.

[10]

As
    a result, the trial judge found the appellant guilty beyond a reasonable doubt
    of attempted fraud, attempted false pretences and public mischief. He stayed
    the attempted false pretence count pursuant to
Kienapple
, and entered
    convictions on the other counts.

Grounds of appeal

[11]

The
    appellant submits that the trial judge materially misapprehended evidence and
    made impermissible inferences from that evidence. She submits in particular,

(a)

The trial
    judge overlooked gaps and frailties in the testimony of insurance
    investigators, including their failure to make inquiries of the company that first
    registered ownership of the vehicle in Ontario and to explore other issues
    related to the importation of the car from New York.

(b)

The trial
    judge overemphasized the strength of the circumstantial evidence suggesting
    that more than one key for the car existed.

(c)

The trial
    judge overemphasized the reliability and probative value of the key scan
    results, in the face of gaps in the evidence as to the history of the car and
    the potential impact on the key scan results from other events (most notably
    the prior accident);

(d)

The trial
    judge overlooked the appellants evidence that she had been driving the car
    during relevant time periods and other evidence tending to support her
    evidence.

[12]

The
    appellant also submits that the trial judge erred in drawing the inference that
    the evidence of her brother and father would not be of assistance to her, and
    tacitly reversed the onus of proof by drawing this inference.

Analysis

[13]

We
    would not give effect to these grounds of appeal. There was no misapprehension
    of the evidence. The conclusions reached by the trial judge were reasonably
    available to him on the evidence. The appellant essentially asks this court to
    re-try this case and re-weigh the evidence.

[14]

The
    trial judge specifically referred to the limits to the insurers investigation.
    The only logical conclusion on the evidence was that more than one key for the
    car existed, and that the key the appellant said she used had not been used for
    some 16 months. However, another key must have been used to conduct the
    emission testing at a time when the vehicle had no licence plates, and was
    brought in for testing by some unknown person.

[15]

The
    appellant claimed that either her brother or father must have brought the car
    in for emission testing, yet neither had the name given by the person who
    brought the car in for that purpose. She also said her brother was with her
    when the car was stolen.

[16]

In
    these circumstances, the trial judge did not err in drawing the limited
    inference that their evidence would not have been favourable to the defence. He
    specifically noted that there was no onus on the defence. In any event the
    trial judge drew that inference only in relation to his alternate path to
    conviction, and the inference did not affect the primary basis which is
    unaffected by any other error.

[17]

The
    appeal from conviction is accordingly dismissed. The appellant did not pursue her application for leave to appeal sentence, and that application is accordingly dismissed as abandoned.

G. Pardu J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.


