



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order excluding the public and restricting
    publication made in this proceeding under ss. 486(1), (2), or (3) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may order the
    exclusion of all or any members of the public from the court room for all or
    part of the proceedings if the judge or justice is of the opinion that such an
    order is in the interest of public morals, the maintenance of order or the
    proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)     For the purpose of subsection (1), the
    proper administration of justice includes ensuring that.

(a) the interests of the witnesses under the age
    of eighteen years   are safeguarded in all proceedings; and

(b) justice system participants who are involved
    in the proceedings are protected.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, reference to the circumstances of the
    case, the reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c.
    93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karimi, 2014 ONCA 320

DATE: 20140428

DOCKET: C54078

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Karimi

Appellant

Alan D. Gold and Joel N. Myskiw, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 24, 2014

On appeal from the convictions entered on June 6, 2011 by
    Justice W.J.L. Brennan of the Superior Court of Justice, sitting with a jury,
    and the sentence imposed on November 13, 2012 by Justice Lynn D. Ratushny of
    the Superior Court of Justice.

By the Court:

[1]

Justice Brennan of the Superior Court of
    Justice, sitting with a jury, entered convictions against the appellant on two
    counts each of extortion and criminal harassment, and one count of attempted
    extortion. Justice Ratushny sentenced him to a three-year custodial sentence. The
    appellant appeals from the convictions and seeks leave to appeal from the sentence.

A.

Facts

[2]

The appellant, Ali Karimi, owns and operates a
    series of 24-hour convenience stores in Ottawa called Zesty Market. The convictions
    arise from the appellants threats to three employees that he would call the
    police and report that each had been stealing from him, and that each would
    suffer grave consequences if he did not give the appellant money. In total, the
    appellant obtained almost $50,000 from the complainants.

(1)

Yashar Kablou: extortion and criminal harassment

[3]

Kablou was born in Iran and immigrated to Canada
    in 2004. At the time of the offences in 2007, he was a 24-year-old university
    student.

[4]

On April 28, 2007, Kablou was unexpectedly
    called into work. At the time, the appellant had not paid him for his last four
    shifts. Kablou told the appellant that if he went to work, he expected to
    receive the amounts owing to him, and the appellant agreed. When he arrived for
    his shift, Kablou asked the appellant if he would get paid. The appellant said
    yes, and then left.

[5]

Around 10 p.m., Kablou, who was moving to
    Waterloo the next day, concluded the appellant would not pay him and took $300
    out of the cash register. He left a note indicating he had taken the money in
    lieu of a paycheck. Approximately 15-30 minutes later, the appellant ran into
    the store and said he had seen Kablou take $300 from him, and told Kablou he
    was calling the police. The appellant demanded that Kablou pay him about
    $50,000. The appellant instructed Kablou to acknowledge in writing that he had
    been stealing from him. Kablou wrote: I took $300 and I have to give
    $50,000. The next day, Kablou delivered three cheques of $2,000 each to the
    store. The appellant called Kablou and told him to change one cheque to
    $50,000, which Kablou did.

[6]

The facts underlying the criminal harassment count
    began on May 1, 2007, after Kablou moved to Waterloo. Over the following weeks,
    the appellant demanded additional amounts of money totaling several thousand
    dollars. Kablou transferred various amounts to the appellant, and wrote him some
    post-dated cheques. The appellant told Kablou earlier that he had been a member
    of the Iranian Revolutionary Guard.

(2)

Farzad Panahi: extortion and criminal harassment

[7]

Panahi came to Canada in 2005 from Iran. He
    worked for the appellant from late 2005 to February 2008. At the time of the
    offences, he was a manager at a number of stores. The appellant had told Panahi
    that he was the former head of the Revolutionary Guard in Tehran.

[8]

The facts underlying the extortion offence took
    place on February 4, 2008. Panahi confirmed the store reconciliations from the
    weekend were accurate. Panahi then found an envelope containing $380 in cash near
    the cash register. He called the appellant and told him about it. The appellant
    told him to hold the envelope up to the security camera and then put it back
    where he had found it. Later that day, the appellant came into the store and
    began to yell at Panahi. The appellant accused Panahi of stealing from him,
    telling him he would call the police and immigration authorities and that Panahi
    would go to jail and be deported. The appellant also said he knew lots of
    people back home. The appellant told Panahi he would not contact the
    authorities if Panahi confessed to stealing from him. Panahi was frightened,
    and testified that he agreed to everything the appellant said to protect his
    family and his own life. The appellant told Panahi to come into his office and
    write it down. He showed Panahi the $50,000 cheque from Kablou. At the
    appellants insistence, Panahi wrote on a piece of paper that he had taken
    $35,000 from the appellant.

[9]

They then went to a branch of the
    Toronto-Dominion Bank, where Panahi cashed a GIC and gave the appellant a
    certified cheque for $20,000. The appellant forced Panahi to empty his chequing
    account, which contained $5,000, and to request his bank statements for the
    previous six months. By the end of the day, the appellant had obtained all of
    the demanded bank statements.

[10]

The criminal harassment began the next day,
    February 5, 2008. Panahi went back to the bank to cash another GIC. He brought
    the appellant a certified cheque for $8,500. The appellant began calling Panahi
    every day, demanding more money. Panahis wife went to see the appellant and
    tried to give him her
jewellery
to resolve the matter.
    She realized there was no end to the money he wanted from them. By February 10,
    2008 Panahi had given the appellant a total of $37,000. Panahi testified that
    he was afraid that if he spoke to the police he would be deported and arrested
    in Iran. On February 12, 2008, he spoke to the police.

(3)

Alireza Khodabandeh: attempted extortion

[11]

Khodabandeh came to Canada from Iran in 2000
    when he was 25 years old. He worked and became a manager at one of the
    appellants convenience stores. During his employment, Khodabandeh heard the
    appellant threaten other employees on many occasions, and accuse them of
    stealing money.

[12]

On February 4, 2008, the appellant accused
    Khodabandeh of stealing money. He also told Khodabandeh that he knew he was
    gay, and said that the gays had to be returned to Iran and hung. He told
    Khodabandeh that he was going to get $40,000 from Khodabandehs family in Iran,
    and then ten times more. Khodabandeh had earlier heard the appellant say that
    he worked for the Iranian Revolutionary Guard and that he had friends back
    home. Eventually, the appellant demanded that Khodabandeh confess to theft,
    produce his bank statements and disclose other personal information to the
    appellant, and commence monthly payments for the monies he had stolen.

[13]

Khodabandeh spoke to a lawyer and learned what
    extortion was. Khodabandeh returned to work over the following days and began
    recording the appellants threats to him.

B.

ISSUES

[14]

The appellant submits that the trial judge erred
    by failing to relate the evidence to the issues in the case, by expressly
    permitting the jury to consider the evidence cumulatively on all the counts if
    the jury concluded there was a pattern of similar conduct, and by providing
    erroneous instructions regarding the law of extortion and harassment. The
    appellant also submits the Crown exceeded the bounds of proper argument in
    inviting the jury to reject the authenticity of audio recordings put in
    evidence by the appellant and that the trial judges instructions to the jury
    regarding the authenticity of the recordings were deficient. The appellant
    tenders fresh evidence that the audio recordings are in fact authentic. Finally,
    the appellant submits that the trial judge erred in his sentencing analysis in
    various ways, that the range of fit sentences for these offences has an upper
    limit of two years, and that the appellant should have received a
    community-based disposition.

C.

CONVICTION APPEAL

(1)

Failure to
    relate the evidence to the issues

[15]

The appellant submits that the trial judge
    failed to relate the evidence to the essential elements of the charges. The
    concern is that, after referring to the elements of the offences, the trial
    judge then merely recited all the evidence of a particular complainant without
    relating the pieces of evidence to a particular element.

[16]

We are satisfied that the charge left the jurors
    with a clear understanding of the

elements of
    the offences and the defence
position. The trial judge
    referred to the essential parts of the evidence. The prosecution and defence
    cases were not complex. The defence position at trial was that the appellants
    conduct toward each complainant was not threatening, but a heavy-handed, though
    not illegal, attempt to recover money that he actually was owed or reasonably
    believed he was owed. Given that each of the complainants had testified to
    similar conduct by the appellant, and the defence position in regard to each
    was the same, it was unnecessary for the trial judge to provide the jury with a
    repetition of the elements of each count and the evidence related to each count.

[17]

The trial judge invited both parties to provide
    him with written outlines of their positions. In his charge, he recited the
    theories that the Crown and the defence had provided to him. Furthermore, the
    defence received the draft jury charge, and a pretrial conference was held.
    After the jury charge was delivered, there was no objection to the manner in
    which the trial judge articulated the defence position. In these circumstances,
    it is difficult for the appellant to argue now that the charge left the jury
    with an inadequate understanding of the elements of the offences or the defence
    position in relation to those offences.

[18]

We
    would not give effect to this ground of appeal.

(2)

Similar fact evidence

[19]

The
    appellant submits that the trial judge erred in directing the jury that the
    evidence of the three complainants could be used as similar fact evidence. He
    also submits that the trial judge failed to adequately direct the jury
    concerning the use of the evidence and, in particular, failed to point out
    important differences in the three accounts.

[20]

The
    defence position at trial was that the three complainants had colluded against
    the appellant to have him charged criminally. The defence did not bring an
    application for severance. Thus, the evidence from the three complainants would
    be placed before the jury. The defence relied upon the similarity in the
    accounts of the complainants to support the position that the three
    complainants had colluded to fabricate a story. Counsel for the appellant did
    not object to the inclusion of the similar fact portion of the charge upon
    receiving the draft of the charge, or after the charge had been delivered. Given
    the defence position, we see no error in the trial judge failing to conduct a
    formal application to determine the admissibility of the three accounts as
    similar fact evidence.

[21]

In
    oral argument, counsel provided the court with a written summary of the
    evidence of the three complainants to show that there were significant
    differences in their evidence. He submits that the charge to the jury was
    deficient in failing to highlight some of these differences.

[22]

We
    disagree. The charge to the jury focused on the allegation of collusion. The
    charge also accurately related how the evidence could be admitted to support
    the prosecution theory. The complaint now made by the appellant was not advanced
    at trial and is inconsistent with the defence position of collusion. In our
    view, the jury would have had a sufficient understanding of the defence
    position with respect to the use of the three complainants evidence. Their
    accounts were not identical; for example, the appellant allegedly used slightly
    different threats against each of the victims. However, given the issues in the
    case, especially that identity was not in issue, there was sufficient similarity
    that the evidence of the three victims was admissible as similar fact evidence.
    Since, as we have said, the jury would have had a sufficient understanding of
    the prosecution and defence cases for proper use of the complainants evidence,
    we would not give effect to this ground of appeal.

(3)

The law of extortion

[23]

The
    appellant submits that, as a matter of law, a threat to call the police,
    standing alone, can never constitute extortion.

[24]

Again
    we disagree. As this court pointed out in
R. v. H.A.
, [2005] O.J. No.
    3777, the context must be considered in determining whether an otherwise
    apparently lawful threat (i.e., to call police) constitutes an extortive threat.
    A threat to call the police unless the complainants gave the appellant money
    could amount to extortion if the jury was satisfied the appellant knew the
    complainants had not stolen from him or did not reasonably believe they had
    stolen money from him. The charge did not suggest that a mere threat to call
    police would alone be sufficient to constitute extortion.

[25]

The
    appellant points out that the indictment particularized the alleged extortion
    as threats. Thus, he submits it was an error for the trial judge to tell the
    jury that a threat includes an accusation.

[26]

We
    reject this complaint. We are satisfied that the charge read as a whole made
    clear to the jury that the alleged extortion consisted of threats to call the
    police based on the appellants false accusations that the complainants had
    robbed him. As the charge was framed, mere accusations would not have amounted
    to the requisite threat element of the offence of extortion.

(4)

The law of harassment

[27]

The
    appellant objects that the trial judge told the jury that: In this case
    criminal harassment is made out if you find beyond a reasonable doubt that
    there was repeated communication that resulted in the person being harassed.
    He submits this oversimplified instruction failed to make clear that a
    complainants fear of safety is a key element of the offence.

[28]

This
    instruction was given in a recharge after defense counsel had objected that the
    Crowns submissions to the jury had not indicated that the unwanted
    communication needed to be repeated, as had been particularized in the
    indictment. It was for that reason the trial judge told the jury they had to
    find repeated communication that resulted in harassment. In his main charge,
    the trial judge had provided a full and accurate recitation of the six elements
    required for proof of harassment. We would not give effect to this ground of
    appeal.

[29]

The
    appellant also suggests the trial judges explanation of the phrase lawful
    authority implied to the jury there had to be an express legal provision that
    authorized the appellants actions.

[30]

We
    do not agree. The trial judge provided clear instructions that the jury should
    consider whether the appellant believed that he was recovering money from
    Kablou that Kablou had stolen from him and whether it was lawful to attempt to
    recover it. This instruction made clear that express legal authority for the
    appellants actions was not required  if the appellant had an objectively
    reasonable belief that he had been stolen from, it would follow that he had
    lawful authority to seek recovery of the stolen money. We further note, as the
    appellant acknowledges, that the trial judges impugned instruction conformed to
    the standard jury charge on this issue set out in Watts Manual of Criminal
    Jury Instructions.

(5)

The Crowns closing address and the Fresh Evidence

[31]

In
    his closing address, the Crown questioned the authenticity of audio recordings
    relied on by the defence in which one of the complainants (Panahi) allegedly confessed
    to stealing from the appellant.

[32]

Contrary
    to the appellants argument, the Crowns closing was strenuous but was not
    outside the bounds of legitimate argument. While an aspect of the Crown
    submission respecting the defence witness Zarei concerned the audio recordings,
    the main position taken by the prosecution was that Zarei was not a credible
    witness. There was a sufficient basis for this position because of the
    relationship between Zarei and Panahi. Further, there was sufficient material
    before the jury to allow Crown counsel to allege that the tapes were not an
    authentic confession by Panahi. Crown counsel has provided a long list of
    material in her factum that would allow for this inference to be drawn.

[33]

On
    this appeal, the appellant sought to tender fresh expert opinion evidence that
    the audio recordings were authentic. The fresh evidence is not admissible. The
    expert opinion could have been obtained earlier and offered at trial. More to
    the point, the expert opinion evidence, if it had been introduced at trial,
    would not have affected the outcome of the trial. Given that the three
    complainants testified that the appellant had intimidated and bullied them into
    confessing they had stolen money from him, the audio recordings cannot be
    regarded as potentially decisive. Finally, the fresh evidence does not meet the
    prosecution theory that the voice alleged to be that of Panahi was scripted and
    was not his real voice.

D.

Sentence appeal

[34]

We
    have not been persuaded that there is any basis for interfering with the
    sentence. The sentencing judge committed no errors of principle. She considered
    all the relevant factors and weighed them appropriately. Absent any error of
    principle, there is no basis to interfere with the sentence imposed.

[35]

The
    appellant submits that the trial judge placed undue emphasis on the decision of
    this court in
R. v. Lindsay
, [2009] O.J. No. 2700. We disagree. The
    trial judge recognized that there were differences between this case and
Lindsay
and took these differences into account.

[36]

These
    were serious offences involving threats to three complainants, two of whom were
    forced to give the appellant large amounts of money. The appellant used his
    alleged association with the Iranian Revolutionary Guard to threaten the
    complainants, some of whom had families back in Iran. Given these factors, the
    sentence imposed was fit.

E.

Conclusion

[37]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is also dismissed.

Released: April 28, 2014

(EAC)                                                                         
    M. Rosenberg J.A.

E.A. Cronk J.A.

R.G. Juriansz J.A.


