



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arsabekov, 2016 ONCA 169

DATE: 20160301

DOCKET: C52359

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timur Arsabekov

Appellant

Margaret Bojanowska, for the appellant

Alexander Hrybinsky, for the respondent

Heard:  February 25, 2016

On appeal from the conviction entered on February 19,
    2010 by Justice Feroza Bhabha of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from conviction for fraudulent possession of
    credit card data and possession of a credit card forgery device. The appellant
    was convicted following a trial in the Ontario Court of Justice but was
    acquitted of a charge of possession of break-in instruments.

[2]

A USB device containing credit card information and a credit card
    swiping device (reader) were found in a console in the appellants car. The
    appellant concedes that he had control over these objects, so the Crown was
    required only to establish knowledge in order to make out the possession
    charges.

[3]

The appellant submits that the verdict was unreasonable and that the
    trial judge failed to conduct a proper analysis concerning the appellants
    knowledge.

[4]

We disagree.

[5]

In our view there was ample circumstantial evidence to support an
    inference of knowledge. The trial judge found that the appellant attempted to
    evade the police when he was followed. The USB device found in appellants car contained
    credit card information belonging to American Express and CIBC clients. It was
    found alongside a credit card reader. The trial judge recognized that a credit
    card reader is not a prohibited device per se, but it is an item that can be
    used for fraudulent purposes in dealing with credit cards. Finally, the trial
    judge rejected the appellants testimony, including his claim that items had
    been left in the car by a third party, describing it as a complete
    fabrication.

[6]

In these circumstances, the inference that the appellant had knowledge
    of the objects in his possession was open to the trial judge, and her decision
    to draw that inference is not inconsistent with her decision to acquit the
    appellant on the charge of possession of break-in instruments.

[7]

We recognize that the Crown failed to prove that the appellant was
    involved in the credit card skimming operation the police were investigating at
    a Green P parking lot. That, however, was not fatal to the Crowns case as the
    balance of the evidence led by the Crown was sufficient to support the
    appellants convictions for possession of the credit card data and possession
    of a credit card forgery device. Nor was the Crown required to establish that
    the appellant had used the USB or the credit card reader in order to establish
    the appellants knowledge of them.

[8]

The trial judge properly instructed herself as to the requirements of
R.
    v. W. (D.).
and properly applied the reasonable doubt standard. She did
    not make a finding against the appellant based solely on rejection of his
    evidence.

[9]

The appeal is dismissed.

Robert
    J. Sharpe J.A.

M.L.
    Benotto J.A.

Grant
    Huscroft J.A.


