



WARNING

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

An order restricting
publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
(5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
order is made under section 486.4, on application of the prosecutor in respect
of a victim or a witness, or on application of a victim or a witness, a judge
or justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is of the opinion that the order
is in the interest of the proper administration of justice.

(2)     On application
of the prosecutor in respect of a justice system participant who is involved in
proceedings in respect of an offence referred to in subsection (2.1), or on
application of such a justice system participant, a judge or justice may make
an order directing that any information that could identify the justice system
participant shall not be published in any document or broadcast or transmitted
in any way if the judge or justice is satisfied that the order is in the
interest of the proper administration of justice.

(2.1) The offences for
the purposes of subsection (2) are

(a) an offence under
section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
committed for the benefit of, at the direction of, or in association with, a
criminal organization;

(b) a terrorism offence;

(c) an offence under
subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
Information Act
; or

(d) an offence under
subsection 21(1) or section 23 of the
Security of Information Act
that
is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
under this section does not apply in respect of the disclosure of information
in the course of the administration of justice if it is not the purpose of the
disclosure to make the information known in the community.

(4)     An applicant for
an order shall

(a) apply in writing to
the presiding judge or justice or, if the judge or justice has not been
determined, to a judge of a superior court of criminal jurisdiction in the
judicial district where the proceedings will take place; and

(b) provide notice of
the application to the prosecutor, the accused and any other person affected by
the order that the judge or justice specifies.

(5)     An applicant for
an order shall set out the grounds on which the applicant relies to establish
that the order is necessary for the proper administration of justice.

(6)     The judge or
justice may hold a hearing to determine whether an order should be made, and
the hearing may be in private.

(7)     In determining
whether to make an order, the judge or justice shall consider

(a) the right to a fair
and public hearing;

(b) whether there is a
real and substantial risk that the victim, witness or justice system
participant would suffer harm if their identity were disclosed;

(c) whether the victim,
witness or justice system participant needs the order for their security or to
protect them from intimidation or retaliation;

(d) societys interest
in encouraging the reporting of offences and the participation of victims,
witnesses and justice system participants in the criminal justice process;

(e) whether effective
alternatives are available to protect the identity of the victim, witness or
justice system participant;

(f) the salutary and
deleterious effects of the proposed order;

(g) the impact of the
proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
that the judge or justice considers relevant.

(8)     An order may be
subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
or justice refuses to make an order, no person shall publish in any document or
broadcast or transmit in any way

(a) the contents of an
application;

(b) any evidence taken,
information given or submissions made at a hearing under subsection (6); or

(c) any other
information that could identify the person to whom the application relates as a
victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person
who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary
conviction.

(2)     For greater
certainty, an order referred to in subsection (1) applies to prohibit, in
relation to proceedings taken against any person who fails to comply with the
order, the publication in any document or the broadcasting or transmission in
any way of information that could identify a victim, witness or justice system
participant whose identity is protected by the order. 2005, c. 32, s. 15.

In addition, the order
made by the trial judge restricting publication concerning the contents of
exhibit 1 to the proceedings of February 1, 2017 shall continue.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Eid, 2020 ONCA 649

DATE: 20201019

DOCKET: C63333

Pardu, Paciocco and Harvison
Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roland Eid

Appellant

Roland Eid, acting in person

Marie Comiskey, for the respondent

Heard: October 6, 2020 by
video conference

On appeal from the convictions entered by
Justice Timothy D. Ray of the Superior Court of Justice on May 2, 2016, with
reasons reported at 2016 ONSC 3221, 61 C.L.R. (4th) 155, and the sentence imposed
on February 7, 2017, with reasons at 2017 ONSC 898.

REASONS FOR DECISION

OVERVIEW

[1]

Roland Eid was convicted, after a judge-alone trial,
of ten commercial fraud and fraud-related offences arising from his operation
of 6364144 Canada Inc., carrying on business as ICI Construction Management
(ICI). The trial judge was satisfied beyond a reasonable doubt that, in 2007
and early 2008, Mr. Eid falsified documents and transactions and withheld
payments to ICI creditors in order to extract and steal $1.7 million from ICI,
which he transmitted to Lebanon before going and remaining there.

[2]

When convicting Mr. Eid, the trial judge concluded
that Mr. Eids fraudulent activities caused the loss of approximately $3.8
million to ICIs subcontractors and creditors. With the benefit of further
evidence during the sentencing hearing, the trial judge accepted that the total
losses in fact approximated $8 million. The trial judge imposed a global
sentence of seven years imprisonment, a restitution order in the amount of
$488,057.48 to designated creditors, as well as an order for a fine in lieu of
forfeiture in the amount of $1.7 million, with a further five consecutive years
of imprisonment in default of payment, pursuant to s. 462.37(4)(vii) of the
Criminal

Code
.

[3]

Mr. Eid, who is representing himself, appeals
his conviction arguing that a miscarriage of justice occurred because he
received ineffective assistance of counsel, and that the trial judge erred in
law in rejecting his post-conviction application under s. 11(b) of the
Canadian
Charter of Rights and Freedoms
.

[4]

Mr. Eid also seeks leave to appeal his sentence.
The sentence appeal grounds are not specified with clarity, but we understand
Mr. Eid to be challenging the trial judges decision to admit forensic
accounting reports from Crown expert witnesses during the sentencing hearing,
and the fitness of his sentence.

THE INEFFECTIVE ASSISTANCE OF COUNSEL APPEAL

[5]

In his ineffective assistance of counsel appeal,
Mr. Eid offers numerous complaints about his representation. The most
significant allegations are that defence counsel (1) prevented him from
testifying, and (2) failed to pursue and present relevant evidence in his
defence, contrary to his instructions, including evidence that Mr. Eid
transmitted the money to Lebanon with the knowledge of the Canadian government
to assist an undercover Canadian Security Intelligence Service (CSIS)
operation, and that the Royal Canadian Mounted Police (RCMP) orchestrated the
fraudulent bankruptcy of ICI. He also contends that defence counsel was
incompetent in (3) failing to challenge the Crowns forensic evidence, and (4)
releasing confidential client information to the RCMP.

[6]

We would reject this ground of appeal. As Watt
J.A. affirmed in
R. v. Girn
, 2019 ONCA 202, 145 O.R. (3d) 420, at
para. 91, in order to succeed, Mr. Eid must establish:

i.

the facts on which the claim is grounded;

ii.

the incompetence of the representation provided
by trial counsel (the
performance

component); and

iii.

a miscarriage of justice as a result of the
incompetent representation by trial counsel (the
prejudice

component).
[Emphasis in original.]

[7]

Watt J.A. further explained that this burden is
not easily satisfied and that, if the facts that underpin the claim are
established, the analysis begins with the prejudice component:
Girn
,
at paras. 91-92. If either of the factual or prejudice components are not
established, there will be no need to determine whether the representation was
incompetent. That is the case here.

(1)

Defence counsel did not prevent Mr. Eid from
testifying

[8]

Mr. Eid has not satisfied us that trial counsel
prevented him from testifying. In fresh evidence admitted in this appeal, trial
counsel offered considered tactical reasons why it was not in Mr. Eids
interest to testify and affirmed that Mr. Eid was consulted about this and
agreed. This claim finds support in the fact that Mr. Eid, an intelligent and
articulate gentleman who had interjected during proceedings on other occasions,
raised no objection when defence counsel closed the defence case without
calling Mr. Eid, and was seemingly content to continue with the same counsel
for many months after the decision to call no evidence was made. In contrast,
Mr. Eids affidavit and cross-examination revealed his confusion relating to
material events that had occurred during the trial. Mr. Eid has therefore
failed to satisfy us as to the facts on which this complaint is grounded,
notwithstanding defence counsels failure to obtain a signed waiver from Mr. Eid
of his right to testify.

(2)

Mr. Eid was not prejudiced by the absence of
defence evidence relating to his character, the Canadian government, CSIS or
the RCMP

[9]

Nor can we make a finding of inadequate
representation based on Mr. Eids claims that defence counsel failed to pursue
and present relevant evidence in his defence, contrary to his instructions. Even
if everything Mr. Eid now claims to be true was established during his trial,
including positive evidence about Mr. Eids character, the knowledge of the Canadian
government about the removal of the money from Canada, his intention to remove
the money to assist CSIS, and the misconduct of the RCMP, the means chosen by Mr.
Eid to acquire the money still amount to fraud and support each of the offences
for which he was convicted.

[10]

Specifically, Mr. Eid admitted to sending the
$1.7 million to Lebanon, and there was overwhelming evidence that Mr. Eid used
deceptive and therefore dishonest means to acquire this money. His act of doing
so put that money at risk, thereby creating a risk of deprivation for ICI and
its creditors and subcontractors. This amounts to fraud, in law:
R. v. Théroux
,
[1993] 2 S.C.R. 5, at p. 15. The evidence that he claims defence counsel should
have pursued and presented would not have helped him. The prejudice component
of the ineffective assistance of counsel ground of appeal is not met.

[11]

In any event, we are not satisfied that defence
counsel failed to pursue or present evidence relating to these matters,
contrary to Mr. Eids instructions. In his evidence, defence counsel testified
that, in consultation with Mr. Eid, a tactical decision was taken to present
the Syria Project defence by raising a reasonable doubt as to whether Mr.
Eids conduct was properly undertaken in pursuit of a legitimate business
opportunity. This has the ring of truth, given that the evidence that Mr. Eid
has identified would not have provided him with a defence, whereas the Syria
Project defence may have done so. Moreover, defence counsel testified that he
had attempted to investigate the CSIS angle in a hearing before Ratushny J.,
but CSIS would not support Mr. Eids claims, leaving the Syria Project defence
as the most viable response. The appearance before Ratushny J. is confirmed in
the court record below.

(3)

Mr. Eid was not prejudiced by defence counsels
handling of the forensic evidence

[12]

Defence counsel also gave a cogent and credible
explanation as to why he did not challenge the Crowns forensic evidence or
pursue further forensic evidence on Mr. Eids behalf. He succeeded in
persuading Legal Aid Ontario (LAO) to fund a preliminary forensic report
after initial difficulties, but that report disclosed that the Crowns forensic
reports could not be materially undercut. So, he brokered an agreement with the
Crown that neither party would introduce their forensic experts during trial.
This was to Mr. Eids tactical advantage. The failure by defence counsel to
bring a forensic challenge to the Crowns case during trial did not prejudice
Mr. Eid.

[13]

Moreover, it was in the context of the s. 11(b)
application that defence counsel told the trial judge that at one point, LAO
would not approve an expert forensic report. When doing so, he was not
suggesting that he never obtained an expert forensic report, as Mr. Eid
maintains in this appeal. He was attempting to attribute to the Crown
responsibility for the trial delay caused by his dispute with LAO over the
funding of a forensic report. Mr. Eid misunderstands the evidence.

(4)

Mr. Eid was not prejudiced by the post-trial
disclosure of confidential information

[14]

Finally, the fact that some confidential client
information was ultimately found in disclosure boxes that were returned to the
RCMP cannot support an ineffective assistance of counsel claim. By this point,
Mr. Eids trial was over and his sentence imposed. This mishap had no effect on
his conviction, the instant inquiry. Nor is there any basis for concluding that
this compromised Mr. Eids appeal. The appeal is based on the trial record, not
the confidential documents that fell into the hands of the RCMP.

[15]

We therefore dismiss the ineffective assistance
of counsel ground of appeal.

THE SECTION 11(B) APPEAL

[16]

The decision in
R. v. Jordan
, 2016 SCC
27, [2016] 1 S.C.R. 631, was released after Mr. Eid was convicted but before he
was sentenced. Defence counsel brought a post-conviction s. 11(b) application.
The trial judge calculated the overall delay as approximately 46 months. At the
time the trial judge did not have the benefit of the decision in
R. v.
K.G.K
.
, 2020 SCC 7, 443 D.L.R. (4th) 361. The overall delay should
not have included deliberation time and was therefore approximately 44 months.

[17]

After deducting defence delay of 9 months, and
7.5 months of delay that had expressly been waived by defence counsel, from the
46-month overall delay that he was working with, the trial judge found the net delay,
including the two months deliberation time, to be 29.5 months, a presumptively
reasonable period of delay. He deducted a further four months of delay as
exceptional circumstances, reducing the remaining delay further to 25.5 months.
Mr. Eid disputes the trial judges attribution of delay to the defence,
claiming that he should have found that the delay exceeded the 30-month
presumptive ceiling.

[18]

We need not decide whether the trial judge
committed the errors Mr. Eid alleges, or recalculate the remaining delay used
by the trial judge in light of
K.G.K
. The trial judge ruled that even
if he erred in identifying the sources of delay and the 30-month presumptive
period was exceeded, s. 11(b) was not breached by the delay that occurred in
this complex, transitional case. He was correct in that assessment.

[19]

We dismiss the s. 11(b) ground of appeal.

THE SENTENCE APPEAL

[20]

The trial judge did not err in admitting the
Crowns forensic accounting reports. The trial judge had discretion to admit, during
the sentencing hearing, relevant evidence relating to the impact and hence the
seriousness of the offence.

[21]

Nor is the sentence unfit. It falls within the
appropriate range for commercial frauds of this magnitude and sophistication. Mr.
Eid has identified no errors in principle that occurred during sentencing, and none
are evident.

[22]

Leave to appeal sentence is granted but the
sentence appeal is dismissed.

CONCLUSION

[23]

We have dismissed all grounds of appeal relating
to both the convictions and the sentence. The appeal is therefore dismissed,
and both the convictions and the sentence are affirmed.

G.
Pardu J.A.

David
M. Paciocco J.A.

A.
Harvison Young J.A












