



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barna, 2018 ONCA 1034

DATE: 20181214

DOCKET: C59314

Hoy A.C.J.O., Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Barna

Appellant

Michael A. McKee, for the appellant

Tracy Kozlowski, for the respondent

Heard: December 4, 2018

On appeal from the conviction entered on June 20, 2014 by
    Justice L.A. Pattillo of the Superior Court of Justice, with reasons reported at
    2014 ONSC 1011, and from the sentence imposed on August 29, 2014.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for laundering proceeds of crime,
    contrary to section 462.31 of the
Criminal Code,
R.S.C. 1985, c. C-46,
    as am. The appellant also seeks leave to appeal the sentence imposed in
    connection with his conviction.

[2]

He makes four main arguments on his appeal from conviction.

[3]

First, the appellant argues that the trial judge erred in dismissing his
    s. 11(b)
Charter
application: see
R v. Barna
, 2014 ONSC 7558.
    In particular, the appellant argues that in considering whether the overall
    lapse of time from his arrest to the commencement of trial was unreasonable,
    the trial judge erred in characterizing the case as one of considerable
    complexity and, as a result, allocated an unreasonable amount of time to the
    inherent time requirements of the offence. He further argues that the trial
    judge erred in attributing the delay resulting from the co-accuseds medical
    issues to defence delay, contrary to this courts decision in
R v. Gopie
,
    2017 ONCA 728, 356 C.C.C. (3d) 36.

[4]

While the delay in this case (53 months from the appellants arrest to
    the end of trial) exceeds the presumptive 30-month ceiling established by the
    Supreme Court in
R v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, we are
    not persuaded that there is any basis to interfere with the trial judges
    dismissal of the appellants s. 11(b)
Charter
application.

[5]

Importantly, the trial judges s. 11(b)
Charter
ruling was
    issued a full two years prior to the release of
Jordan
. At that time,
    the framework established by the Supreme Court in
R v. Morin
, [1992] 1
    S.C.R. 771 governed an accuseds s. 11(b)
Charter
right to be tried
    within a reasonable time. Applying the
Morin
framework, the trial judge
    found the delay was reasonable.

[6]

The trial judges characterization of the case as one of considerable
    complexity  and corresponding allocation of time to inherent time requirements
     is amply supported by the record. Further, while the appellant now takes
    issue with characterizing the delay resulting from the co-accuseds medical
    problems as defence delay, before the trial judge the appellant was content
    with the adjournments granted because of the co-accuseds poor health and accepted
    that the resulting delay should be attributable to the defence. As a result,
    the trial judge properly considered the resulting delay as being attributable
    to the actions of the defence. We see no error in the trial judges application
    of the
Morin
framework to the facts of this case.

[7]

In these circumstances, the transitional exceptional circumstance
    recognized in
Jordan
applies and is dispositive. The parties
    reasonably relied on the
Morin
framework throughout the progression of
    the prosecution. The relative complexity of the case, the fact the period of
    institutional delay as assessed by the trial judge fell within (albeit at the
    upper limits) of the
Morin
guidelines, and the seriousness of the
    charges, weighed against the prejudice to the accused, support the application
    of the transitional exceptional circumstance in this case: see
R v.
    J.C.P.
2018 ONCA 986 at paras. 20-21;
Gopie,
at para. 178.
    Moreover, the appellant has not identified any (let alone repeated) mistakes
    or missteps by the Crown that would render the delay unreasonable, such that
    the transitional exceptional circumstance should not apply to permit delay
    beyond the
Jordan
ceiling found to have been reasonable under
Morin
:
Jordan
, at paras. 96-102. The Supreme Court indicated that the release
    of
Jordan
should not automatically transform what would have been
    considered reasonable delay under
Morin
into unreasonable delay:
Jordan
,
    at para. 102. This direction is particularly apposite here, where the trial
    judges s. 11(b) ruling (which we accept was correct under the
Morin
framework)
    was issued a full two years prior to the release of
Jordan
.

[8]

Second, the appellant argues that the
actus reus
of the offence
    of laundering proceeds of crime was not made out because when the appellant attempted
    to cash the bank draft, he was told by Cash Money that the bank needed to speak
    with him before it would verify the bank draft. As a result, the appellant was
    unable to cash the bank draft and Cash Money eventually returned the bank draft
    to the bank, without cashing it. The appellant describes this as the bank
    revoking the bank draft. He submits that, upon revocation, the bank draft
    ceased to be a bank draft and, as a result, the
actus reus
of
    laundering proceeds of crime was not made out.

[9]

From the appellants submissions, we take him to argue that since the
    bank revoked the bank draft before he could cash it, there was no risk of
    loss or deprivation and the underlying fraud was not made out. As a result,
    the bank draft was not property obtained as the result of the commission in
    Canada of a designated offence (i.e. by fraud).

[10]

We
    reject this argument.

[11]

Section
    462.31(1) of the
Criminal Code
provides as follows:

462.31(1)
Every one commits an offence
    who uses, transfers the possession of, sends or delivers to any person or
    place, transports, transmits, alters, disposes of or otherwise deals with, in
    any manner and by any means, any property or any proceeds of any property with intent
    to conceal or convert that property or those proceeds, knowing or believing
    that all or a part of that property or of those proceeds was obtained or
    derived directly or indirectly as a result of

(a)

the
    commission in Canada of a designated offence; or

(b)
an act or omission anywhere
    that, if it had occurred in Canada, would have constituted a designated
    offence.

[12]

The
    essential elements of laundering proceeds of crime are: (1) that the accused
    dealt with property (in this case, the bank draft) or proceeds of property; (2)
    that the property was obtained by crime (in this case, fraud); (3) that the
    accused knew or believed that the property had been obtained by crime; and (4)
    that the accused intended to conceal or convert the property:
R v. Daoust
,
    2004 SCC 6, [2004] 1 S.C.R. 217;
R v. Tejani
(1999), 138 C.C.C. (3d)
    366 (Ont. C.A.).

[13]

The
    underlying fraud in this case was the depositing of counterfeit cheques,
    verification of those cheques, and immediate withdrawal of the funds in cash or
    cash equivalents (including the bank draft at issue in respect of the
    appellants conviction). While the bank acted quickly to revoke the bank
    draft obtained by the appellant, it was unable to recover all the funds
    withdrawn on the specific counterfeit cheque in issue. As the trial judge
    found, the bank suffered an actual pecuniary loss as a result.

[14]

The
    bank draft was property and it was obtained as the result of the commission
    of fraud. The
actus reus
was made out when the appellant picked up the
    bank draft, took it to Cash Money, and twice tried to convert it to cash. As
    the trial judge found, this conduct not only established the
actus reus
of
    the offence (i.e. the appellant had dealt with the bank draft obtained by
    fraud), but also a necessary element of the
mens rea
of the offence
    (i.e. that the appellant intended to convert bank draft).

[15]

Third,
    the appellant argues that while the trial judge correctly held that the
mens
    rea
of laundering proceeds of crime can be satisfied by a finding that the
    accused was willfully blind to the fact that the property had been obtained as
    a result of the commission of a designated offence, and correctly articulated
    the doctrine of willful blindness, he erred in finding that the appellant was
    willfully blind to the origins of the bank draft. As a result, the appellant
    argues the
mens rea
of the offence of laundering proceeds of crime was
    not satisfied.

[16]

We
    reject this argument. The trial judges finding that the appellant was
    willfully blind to the fact that the bank draft was obtained by fraud is amply
    supported by the record. The trial judge was entitled to reject the appellants
    evidence in reaching this conclusion.

[17]

Fourth,
    the appellant argues that the trial judge erred by dismissing the appellants
    motion to permit him to re-open his defence and call further medical evidence
    after he was found guilty of laundering proceeds of crime: see
R v. Barna
,
    2014 ONSC 3788. The appellant argues that because he represented himself at
    trial and did not address the issue of willful blindness in his closing
    submissions, once the trial judge knew he was going to find him willfully blind
    to the fact the bank draft was obtained by fraud, the trial judge should have
    alerted him and invited further evidence and submissions. The appellant argues
    that because the trial judge did not do so, the trial judge was required to
    permit him to re-open his defence.

[18]

We
    reject this argument. While the appellant represented himself, he had practiced
    criminal law for a number of years, although he was disbarred in 2004 for,
    among other things, trust fund violations. The trial judge outlined the
    elements of the offence of laundering proceeds of crime at the outset of trial,
    and, in the course of the appellants closing submissions, alerted the
    appellant that willful blindness was an issue and asked for submissions.
    Moreover, the trial judge found  in our view correctly  that the proposed
    further evidence could have been available at trial, but was not adduced for
    strategic reasons, and in any event would not have altered his conclusion that
    the appellant was willfully blind to the fact that the bank draft was obtained
    by fraud.

[19]

Accordingly,
    we dismiss the appellants appeal against his conviction.

[20]

The
    appellant also seeks leave to appeal the sentence imposed by the trial judge,
    arguing that a conditional sentence of 15 months followed by a period of two
    years probation was excessive in circumstances and this court should
    substitute a conditional discharge.

[21]

As
    a preliminary matter, we reject the Crowns argument that the appellants
    application for leave to appeal sentence is moot because the appellant has
    served his sentence and his period of probation has ended. While his
    application would likely be moot if he were seeking a reduction in the period,
    or a change to the terms, of his conditional sentence or probation order, the
    appellant seeks a conditional discharge because he believes it would improve
    his prospects of being re-admitted to practice law in Ontario. We are not
    convinced this would be the case, but the substitution of a conditional
    discharge might nonetheless be of some benefit to the appellant.

[22]

However,
    we see no basis to interfere with the sentence imposed by the trial judge. In
    his reasons for sentence, the trial judge specifically considered whether it
    was appropriate to grant the appellant a conditional discharge pursuant to s.
    730(1) of the
Criminal Code
. The trial judge adverted to the
    appellants comparatively minor role in the fraud, and the fact that imposing a
    discharge would be in the appellants best interests given his intention to
    apply to be re-admitted to practice law in Ontario. But the trial judge
    ultimately concluded that it would be contrary to the public interest to grant
    a discharge given the severity of the offence and need to further the
    sentencing objective of deterrence. We agree with the trial judge that a
    conditional discharge was not appropriate in this case.

[23]

Accordingly,
    we would dismiss the appeal. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

M.L. Benotto J.A.


