COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall, 2018 ONCA 185

DATE: 20180226

DOCKET: C56854

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy Hall

Appellant

Dirk Derstine and Stephanie Digiuseppe, for the
    appellant

Rosella Cornaviera and Peter Fraser, for the respondent

Heard: November 20 & 21, 2017

On appeal from the conviction entered on March 5, 2013 by
    Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

The appellant was convicted of first degree murder in the death of
    William Mason. The appellants co-accused, Jason Lusted, pleaded guilty to
    accessory after the fact to the murder and became the main Crown witness. Lusted
    testified that in the winter of 2006, he and the appellant abducted Mason and
    drove him to a field where the appellant shot and killed him. They later
    returned to collect Masons body which they took to the appellants farm and incinerated
    in an open-air bonfire. The appellant was charged four years later in 2010. No
    trace of Masons body was ever found.

[2]

Lusted provided the only direct evidence of the murder. The Crown led
    circumstantial evidence including phone records purporting to show certain
    locations of the appellant and Lusted; the testimony of the fire marshal; and
    the evidence of Edmund Huard. Huard testified that the appellant plotted to
    murder Lusted because Lusted knew things that could put the appellant away
    for a long time.

[3]

The appellant submits that the trial judge erred with respect to the
    phone records, the evidence of the fire marshal and the evidence of Huard.

[4]

For the reasons that follow, I have concluded that the evidence of Huard
    was inadmissible. I would allow the appeal and order a new trial.

FACTS

[5]

The appellant led a life of crime. Lusted was a partner in crime. So too
    was Huard. They committed home invasions, weapons offences, robberies and drug
    deals.

[6]

According to Lusted, the appellant had ripped off someone of drugs and
    cash not realizing that the person was working with the Hells Angels. Several
    shots were later fired at the appellants home in Hamilton when he, his common
    law wife, and their children were there. The appellant attributed this to
    retaliation from the Hells Angels. He blamed Mason for giving him bad
    information leading to the rip-off. According to the Crown, this was the motive
    for the murder of Mason.

The Abduction, Murder and Cremation of Mason

[7]

The only direct evidence of the murder of Mason came from Lusted. Lusted
    testified that he and the appellant drove together in a stolen truck to where
    Mason was abducted at gunpoint. Lusted testified that they walked into Masons
    apartment and the appellant told him to put his shoes and coat on because they
    were going to see a guy down the road.  Mason grabbed his phone and the
    appellant ripped it out of his hand and pulled out a sawed-off shotgun that had
    been hidden in his coat.  Lusted and the appellant left with Mason. They then drove
    to a secluded location where the appellant shot and killed Mason. Lusted
    claimed that he panicked, and the appellant responded by firing a shot in the
    air and asking if he wanted to be next.

[8]

After the murder they drove the truck the appellant had stolen to carry
    out the murder back to Hamilton. Lusted retrieved his car and the two drove to
    the outskirts of Smithville where the appellant burned the truck while Lusted
    drove around to make sure no one saw them. Lusted testified that the truck was
    a red GMC or Chevy. A red GMC truck had been reported stolen on February 3,
    2006. At 4:47 pm on February 24 a truck was reported on fire in a driveway just
    outside of Smithville.

[9]

Although Lusted said the murder took place in January 2006, it was
    proven that Mason was still alive in January. The Crown relied on the report of
    the fire to support the theory that the murder took place on February 24, 2006.

[10]

Lusted
    testified that days after the murder they went to the appellants farm in Alma,
    Ontario where they burned Masons body into bones and ash. They put the body on
    a cement pad at the back of the house flanked by barns, placed wood on it and
    doused it with gasoline. Lusted said he was present while the body was burning
    for four hours. He said there were bones and ash in the fire when he left. The
    appellant later told him that he put the remains of the fire in animal feed
    bags. Two experts testified regarding the location of the appellant and
    Lusteds phones when they pinged off certain towers. The phone records show
    that the two men spent several hours in the vicinity of the appellants farm in
    Alma on the night of March 1, 2006. The Crown relied on this evidence in
    support of the theory that the cremation took place in the early hours of March
    2, 2006.

The Fire Marshals evidence

[11]

Fire
    Marshal Gregory Olson testified that he went to the Alma farm on July 4, 2009
    and August 7, 2009  roughly three years after the alleged cremation. He saw
    signs of a fire on the concrete pad. He testified that his team removed
    material from between the cracks in the concrete and screened it for human
    bone. This yielded only small pieces of charcoal and animal bone. He testified
    that it would have required a careful cleanup to remove bone fragments to the
    extent that they would have not been caught by the quarter-inch screen used. He
    said it would take a fire a lot bigger than a bonfire to burn a body. He also
    testified that his inability to say with certainty that a fire had occurred was
    due to the passage of time, the impact of the weather, and cleaning of the
    site.

[12]

Olsons
    cross-examination would later become an issue at trial. A textbook was put to
    him. He was asked about the proposition in the book that it would take more than
    six to seven hours and require 700-900 kilograms of wood to cremate a human
    body in an open-air fire. Olson said that he better not contradict the
    proposition as one of the editors of the text was his former professor. He also
    said that there were too many variables involved and he had not taken part in
    similar studies, so he could not refute the book.

[13]

Defence
    counsel referred to this testimony in his closing submissions to the jury. He
    said:

The fire marshal  seemed to put great trust in  the textbook
    that the teacher wrote  there had been multiple experiments  and on the
    leading authority  they said that it would take approximately six to seven
    hours to burn a body. That to burn a body in that amount of time you would have
    to have 7 to 900 kilograms of wood.

[14]

Defence
    counsel then went on to discuss the impossibility of this timing in light of
    other evidence that the appellant was at the farm for four hours or less.
    Counsel put various calculations to the jury to demonstrate the point.

[15]

After
    the defence closing, the Crown objected. He asked the trial judge to correct
    what defence counsel had said because he had just discovered that the passage
    read to Olson was not authored by the editors of the textbook, but rather by an
    osteoarchaeologist with whom Olson was not familiar.

[16]

After
    argument by counsel the trial judge added the following to his charge:

There is no scientific evidence before you by way of expert
    opinion to consider in determining the length of time required, or the amount of
    wood required to burn a body.

Evidence of Edmund Huard

[17]

Huard
    was an unsavoury witness with a lengthy criminal record. He met the appellant
    and Lusted in federal prison. For a time, he lived in a trailer on the Alma
    farm. Together he and the appellant committed multiple crimes including weapons
    offences, home invasions, a marijuana grow-op and auto thefts. Huard was also
    schizophrenic.

[18]

Huard
    testified that the appellant often told me that [Lusted] had to go. He knew
    too much. He knew something that could put him away for a long time.  Huard
    explained how, in 2008, the appellant thought up the mechanisms of a plot to
    kill Lusted. The appellant would drive to a spot to meet Lusted. Huard would
    hide in the trunk holding a sawed off shot gun. When the cue was given, Huard
    would be let out and he would shoot Lusted.

[19]

Huard
    and Lusted set out to go through with the plan. Huard was in the trunk with the
    gun. The appellant was outside talking to Lusted. He could hear Lusteds voice.
    He did not get the cue to jump out. He said that the appellant called off the
    plan because there were too many people around. All of this took place soon
    after Lusted was released from prison.

[20]

The
    trial judge instructed the jury that they could use Huards testimony as
    evidence corroborating Lusted if they found that the appellant and Huard
    conspired to kill Lusted and that they conspired to kill him because he was a
    witness to Masons murder.

ISSUES

[21]

The
    appellant raises three primary grounds of appeal. He submits that the trial
    judge erred by: (i) instructing the jury that the phone records corroborated
    the testimony of Lusted; (ii) withdrawing Olsons evidence from the jury; and
    (iii) admitting the evidence of Huard.

[22]

He
    also seeks to admit fresh evidence about Huard and his testimony.

ANALYSIS

The Phone Records

[23]

The
    appellant submits that the trial judge erred in instructing the jury that the
    phone records corroborated the testimony of Lusted. The phone records are not
    corroborative because:

·

The phone records do not corroborate the date that Lusted said
    the murder occurred.

·

Lusted testified that he and the appellant burned a truck in
    Smithville following the murder. At the time the evidence suggests a truck was
    burned in Smithville, the appellants phone was pinging off a tower in Hamilton
    and Burlington. The trial judge instructed the jury that at this time the phone
    activity was in Smithville.

[24]

The
    appellant submits that the phone records also do not corroborate Lusteds story
    regarding the burning of Masons body. Lusted indicated that he was at the farm
    for 4-5 hours or a long time. The phone records suggest that he was likely
    at the farm for 2 hours and 40 minutes. The trial judge did not refer to this
    or to the frailties in the evidence of the cell phone experts in his charge to
    the jury.

[25]

In
    my view, the trial judge correctly instructed the jury that the phone records
    were capable of being confirmatory. It was for the jury to assess the evidence
    and determine whether it could show that Lusted was telling the truth. The
    issues raised by the appellant were highlighted for the jury either in the
    charge or the judges recitation of the summary of the defence position, or by
    counsel in the closing remarks. The jury would have appreciated the defence
    position.

[26]

I
    would not give effect to this ground of appeal.

The Fire Marshals evidence

[27]

The
    appellant submits that the trial judge erred by withdrawing from the jurys
    consideration Olsons evidence regarding the time and conditions required to
    incinerate a human body. This evidence was central to his defence and formed a
    fundamental feature of the defences closing address. The withdrawal during the
    final instructions was highly prejudicial to the appellants fair trial rights.
    The Crown did not object when the evidence was being called. It was too late to
    object after the close of the evidence. Further, the appellant submits that the
    trial judge eviscerated the exculpatory evidence when he instructed the jury
    that there was no scientific evidence to consider in determining the length
    of time or amount of wood required to burn a body.

[28]

To
    some extent, I agree with the appellant. The judges charge to the jury went
    too far in declaring that there was no scientific evidence. Olson did testify
    about matters other than the impugned textbook reference. In particular, Olson
    was equivocal in his evidence as to the time and amount of wood. He said there
    were too many variables and would not venture an opinion. This was evidence
    that assisted the defence.

[29]

Although
    I agree that the trial judge went too far when he said there was no scientific
    evidence, the error was of no moment. First, he referred to the equivocal
    nature of Olsons evidence and the fact that there were several variables in
    play. Second, the reference to no scientific evidence was responsive only to
    defence counsels submission to the jury that the timing and the amount of wood
    had been scientifically proven. The trial judges charge on this issue, read as
    a whole, is fair to the defence. Third, Olson did not adopt the contents of the
    article on cremation. The text does not, in any event, demonstrate what the
    appellant says it does. There were  as Olson said  too many variables to make
    this determination.

[30]

I
    would not give effect to this ground of appeal.

Evidence of Huard

[31]

The appellant submits that the trial judge erred in
    admitting the evidence of Huard because it required circular reasoning to be
    admissible and because the prejudicial effect outweighed its probative value. The
    Crown argues that evidence of the appellants plot to kill the only eye-witness
    to the murder was probative and properly admitted, as was evidence of plots to
    kill witnesses in several other cases:
R. v. McCullough
(2000), 142 C.C.C. (3d) 149
; R. v.
    Lawrence
(1989), 36 O.A.C. 198 (C.A.);
R. v. Ganton
(1992),
    105 Sask. R. 126 (C.A.);
R. v. Panzevecchia
(1997), 99 O.A.C. 214 (Ont. C.A.); and
R.
    v. Tran
, 2001 NSCA 2, 150 C.C.C. (3d)
    481.

The Trial Judges Admissibility Ruling

[32]

There
    were two reasons advanced for the admissibility of the evidence of Huard: (i)
    to corroborate the evidence of Lusted; and (ii) to demonstrate consciousness of
    guilt arising from after the fact conduct. The trial judge heard lengthy
    submissions as to the admissibility of Huards testimony.

[33]

The
    trial judges reasons for admitting the evidence are contained in a so called
    omnibus ruling with respect to discreditable conduct. As pointed out by the
    Crown, the trial judge correctly articulates the test from
R. v. B. (C.R.),
[1990] 1 S.C.R. 717, at pp. 731-732

and
R. v. Handy,
2002 SCC 56,
    [2002] 2 S.C.R. 908, at para. 41
with respect to discreditable
    conduct of an accused. The specific reasons for admitting the evidence of Huard
    consists of these three paragraphs:

Defence counsel
    argues that the evidence of Edmond Huard about the plot to kill Lusted is
    extremely prejudicial. However, it is also powerful probative evidence of [the
    appellants] consciousness of guilt. If the jury accepts the evidence that [the
    appellant] plotted to do away with the only witness to Billy Masons murder
    giving the reason for such action as being that Lusted had information that
    would put [the appellant] away for a long time, it is open to the jury to draw
    the inference that [the appellant] is the killer of Mason.

This evidence of the
    plot to do away with Lusted is not similar fact evidence or propensity evidence
    unrelated to the murder charge before the court but rather part of the
    continuing narrative of the events surrounding the murder of Billy Mason and
    directly related to the involvement of [the appellant]. The fact that this
    evidence maybe powerful evidence for the prosecution does not lead to a
    conclusion of prejudice. The evidence may be unfortunate for the accused but
    not prejudicial in the legal sense.

Doing my best to balance the probative value of
    the evidence in question against the prejudicial effect, having regard to the
    importance of the issues for which the evidence is legitimately offered against
    the risk that jury will use it for other improper purposes, and taking into the
    account the effectiveness of any limiting instructions I can conclude that the
    probative value of the evidence proffered by the Crown outweighs the
    prejudicial effect and that the evidence proffered is admissible.

[34]

In
    short, the trial judge determined that the evidence of Huard: provides
    powerful probative evidence of [the appellants] consciousness of guilt as
    the jury could draw the inference that the appellant is the killer of Mason; is
    not similar fact or propensity but part of a continuing narrative; and is more
    probative than prejudicial.

[35]

I
    do not agree with these conclusions. The evidence was only marginally relevant
    and was not probative. Further, the effect was highly prejudicial.

[36]

Deference
    is owed to a trial judges balancing of probative versus prejudicial effect. As
    stated in
R. v. Higginbottom
(2001)
,

156 C.C.C. (3d) 178, at para. 9:

A trial judges decision on the admissibility of
    evidence of prior discreditable conduct involves a delicate balancing of the
    probative value of the evidence against its prejudicial effect and is entitled
    to a high degree of deference upon appellate review. In my view, the trial
    judges assessment of the evidence and his conclusion that its probative value
    exceeded its potential prejudicial effect were reasonable.

[37]

The
    usual deference afforded to a trial judges balancing of the probative versus
    prejudicial effect is diminished here because the conclusory nature of his
    reasons does not allow for appellate review: see
R. v. Czibulka
, 2011
    ONCA 82, 267 C.C.C. (3d) 276, at para. 23. It is not clear from his reasons, or
    his later jury charge, that he was alive to the factors that impacted the
    probative value and enhanced the prejudicial effect.

Probative Value:

[38]

For
    the evidence of the plot between Huard and the appellant to kill Lusted to have
    relevance, two assumptions would have to be made:

1.

That Mason had
    been murdered; and

2.

That the
    appellant did it.

[39]

This
    required the jury to engage in a form of circular reasoning and assume facts
    not in evidence. There was no nexus between the plot to murder Lusted and the
    murder of Mason. In addition, the frailties of Huards evidence in general,
    combined with the timing of the plot further diminished any potential probative
    value.

No nexus to the murder of Mason

[40]

The
    plot was developed two years after the disappearance of Mason. Huard testified
    to nothing that would connect the plot to the Mason murder. There was no
    mention in Huards testimony of Masons murder or of Lusteds involvement.
    There was no triggering event to the plan to kill Lusted. Lusted had not just
    gone to the police or threatened to disclose what he knew. The Crown submits
    that he had just been released from prison, but Lusted had not been in jail the
    entire time after Masons disappearance.

[41]

Huard
    said that the appellant told him that Lusted knew things. Although Huard said
    that he was like family to the appellant and was ready to kill for him, he did
    not say what those things were.

[42]

The
    Crown submits that the plot to kill Lusted had to be a result of the murder
    because the other criminal activities that Lusted knew the appellant had done were
    not as serious as murder. It is logical, according to the Crown, that the
    phrase put away for a long time would relate to the penalty for first degree
    murder not the lesser offences. I do not agree. Lusted and the appellant had
    committed many serious crimes together. Plus, there was evidence that implied
    the appellant had other reasons to eliminate Lusted. Huard said that he
    understood that Lusted was a threat to [the appellant] and his family [and]
    can pose a danger on his kids. He said that, while the appellant was in
    custody, Lusted came out to his farm and scared the appellants wife and kids
    and attempted to take stuff. She yelled at Lusted and told him she would call
    the police.

[43]

The
    Crown submits that a plot to kill a witness is after the fact conduct from
    which a consciousness of guilt can be inferred. In my view, this misstates the
    nature of the evidence. Unlike other cases, here there is no evidence linking
    the plot to the crime charged.  For example: in
Lawrence
the plot to
    shoot the Crown witness was discussed by the accused with a fellow inmate and
    in a letter to his spouse; in
Panzevecchia
, the
    threat to kill the witness was made during the assault; in
Tran
, the accused told a cell-mate about the plot to kill
    the witness.  Here, there is no evidence linking the plot to kill Lusted to the
    murder of Mason.

[44]

The
    Crown submits that it is up to the jury to determine the reason for the
    conduct.
In
R. v. White
, [1998] 2 S.C.R. 72, at p. 89
Major J. said:

As a general rule, it will be for the jury to
    decide, on the basis of the evidence as a whole, whether the post‑offence
    conduct of the accused is related to the crime before them rather than to some
    other culpable act. It is also within the province of the jury to consider how
    much weight, if any, such evidence should be accorded in the final
    determination of guilt or innocence. For the trial judge to interfere in that
    process will in most cases constitute a usurpation of the jury's exclusive fact‑finding
    role.

[45]

Again,
    I disagree. In my view,
White
does not apply. Even if the statements
    attributed to the appellant were true, there were reasons  apart from culpable
    acts - as to why he would want Lusted dead. For example, there was the fear
    that Lusted would harm the appellants family. These facts bring this situation
    outside the reasoning in
White
.

[46]

More
    importantly, to accept the Crowns submission would be to force the jury to
    engage in circular reasoning.

Circular reasoning

[47]

I recognize that the argument that circular reasoning is improper
    in connection with after the fact conduct has been rejected
by
    the Supreme Court: see
White
, at p. 100.
    However, the circumstances here are different. This is not a case where the
    appellant is asking for a separate reasonable doubt analysis on circumstantial
    evidence.

[48]

The issue here is the assumptions the jury would
    have to make in order to draw inferences from the evidence. First, the jury
    would have to accept that Mason had been murdered; second, that the appellant
    did it; and third, that the appellant was referring to the murder when he said
    that Lusted knew things. It is this last assumption that is the most
    problematic since there was no evidence from which that inference could be
    drawn. Huard did not testify about the murder of Mason or about the appellants
    involvement in it.

[49]

One would have to
assume
that the
    reason the plot to kill Lusted was hatched was
because
the appellant had killed Mason. There is no link between the plot to
    kill Lusted and the killing of Mason unless the jury makes the unsupported
    assumption that the appellant wanted Lusted dead because he was a witness to
    the murder of Mason. With no evidentiary link between the plot to kill Lusted
    and the murder of Mason  the inference is only available if the jury first
    accepts Lusteds evidence and finds that the appellant killed Mason. One would
    have to draw the inference that the appellant hatched the plot because he
    killed Mason and then use that same plot to conclude that he did kill Mason. Hence
    the circular reasoning.

[50]

The probative analysis here is similar to that in
R. v.
    Portillo
(2003),
176 C.C.C. (3d) 467
.
That case involved
    circumstantial evidence presented by the Crown to prove that Portillo had
    participated in a murder.
An expert compared impressions taken of
    the treads of running shoes found near Portillos home with impressions of the
    footprints found at the scene. The Crown argued that it was open to the jury to
    find that the partial footprint at the scene of the murder was Portillos, and
    that inference provided cogent evidence of Portillos involvement in the
    killing.

[51]

In rejecting the probative value of the footwear, Doherty J.A. said at
    paras. 29-32:

The Crowns argument
    both at trial and on appeal as to the probative value of the footwear
    evidence is seductive. I agree, however, with [defence counsels] contention
    that the Crowns argument as to the relevance of the evidence is ultimately
    based on circular reasoning.

The footwear evidence consisted of two primary
    facts:

 two partial shoe prints found at the scene were similar to
    impressions from two shoes found by the police in the course of their
    investigation; and

 the shoes were found in the vicinity of [Portillos] apartment.

The footwear evidence was relevant if it could
    reasonably be inferred from those primary facts, considered in the context of
    the rest of the evidence, that [Portillo] was at the scene of the homicide in
    close proximity to the body. That conclusion could be drawn only if these two inferences
    were reasonably available from the footwear evidence:

 the shoes found by the police made the prints at the scene; and

 the shoes belonged to [Portillo]

The footwear evidence had relevance only if
    both of the above inferences could be drawn.

[52]

This court concluded that the evidence was not relevant because it
    relied on the assumption of facts not proved.

[53]

Here, the primary fact is the plot to kill Lusted. This fact would only
    have relevance if it could be reasonably inferred from this fact that Mason was
    murdered by the appellant. Put another way, the plot to kill Lusted could only
    assist in proving that the appellant had killed Mason if the appellant wanted
    to kill Lusted
because
Lusted knew he had killed
    Mason. There were no facts to show that the plot was because of Masons murder
    absent an assumption of facts not proven. Thus, the plot - like the footwear in
Portillo
 was not relevant and had no probative
    value.

[54]

The trial judges ruling demonstrates that he fell into the same error
    as the trial court in
Portillo.
He assumed that
    the jury could find  absent evidence connecting the murder of Lusted to the
    murder of Mason - that the appellant wanted to kill Lusted because he witnessed
    the murder. This is clear from this excerpt from para. 27 of his ruling:

If the jury accepts the evidence that [the
    appellant] plotted to do away with the only witness to Billy Masons murder
    giving the reason for such action as being that Lusted had information that
    would put [the appellant] away for a long time, it is open to the jury to draw
    the inference that [the appellant] is the killer of Mason.

[55]

There was no evidence upon which the jury could accept that the reason
    for the murder plot was because the appellant had killed Mason. The probative
    value of the plot depends upon the assumption that it relates to the murder of
    Mason.

Frailties of Huards evidence

[56]

Huard
    was a
Vetrovec
witness, had a long criminal record, and suffered from
    schizophrenia and paranoia. He also heard voices. Then there is the timing of
    the plot.

[57]

Mason
    disappeared in 2006. The Crowns position was that the murder occurred on
    February 24, 2006. Masons body was never found. Huard testified that the plot
    to kill Lusted was hatched and aborted in the summer of 2008. The Crown submits
    that Lusteds release from prison in June 2008 was the reason for the plot. However,
    Lusted had only been in jail for 18 months out of the 28 months between Masons
    disappearance and the plot to kill Lusted. Lusted did not discuss the matter
    with the police until 2009. The appellant was arrested in 2010. Huard spoke
    about the 2008 plot to the police in 2010 after being promised immunity. These
    facts are difficult to reconcile with the trial judges conclusion that the
    plot is part of the continuing narrative.

[58]

Since
    I have concluded that Huards evidence was not probative, it is not necessary
    to consider the prejudicial effect. Nonetheless I do so to demonstrate the
    seriousness of the admission of the evidence.

Prejudicial Effect

[59]

Evidence
    that is otherwise admissible may be excluded on the ground that its probative
    value is overborne by its prejudicial effect. Watt J.A. said:

Prejudicial effect does
not
refer to the probability
    of conviction in the event the evidence is admitted. What is meant by
    prejudice, and what the required balancing seeks to avoid, is
improper
jury
use
of the evidence. In other words, it is
not
so much the
result
that is likely to follow upon reception of the evidence, rather the
manner
of achieving it that the exclusionary discretion seeks to avoid: David Watt,
Manual
    of Criminal Evidence
(Toronto: Thomson Reuters Canada Ltd., 2013), at pp.
    45-46.

[60]

Huard
    imported vast amounts of discreditable conduct by the appellant into the
    evidence: home invasions, stealing vehicles, chopping them apart and selling
    them, weapons, drugs and other criminal activity. Significantly, the plot to
    kill Lusted was criminal conduct which was a similar act to the crime charged.

[61]

There
    is a straight line from this evidence to impermissible propensity reasoning on
    the part of the jury. When speaking of the exclusion of similar fact evidence,
    the Supreme Court stated in
Handy
at para. 37:

The policy basis for the exclusion is that while
    in some cases propensity inferred from similar facts may be relevant, it may
    also capture the attention of the trier of fact to an unwarranted degree. Its
    potential for prejudice, distraction and time consumption is very great and
    these disadvantages will almost always outweigh its probative value. It ought,
    in general, to form no part of the case which the accused is called on to
    answer. It is excluded notwithstanding the general rule that all relevant
    evidence is admissible. [Citations omitted.]

[62]

Handy
also described the prejudice that could result. As to moral
    prejudice, at para. 139:

It is frequently mentioned that prejudice in
    this context is not the risk of conviction. It is, more properly, the risk of
    an unfocussed trial and a
wrongful
conviction. The forbidden chain of
    reasoning is to infer guilt from
general
disposition or propensity. The
    evidence, if believed, shows that an accused has discreditable tendencies. In
    the end, the verdict may be based on prejudice rather than proof, thereby
    undermining the presumption of innocence enshrined in
ss.
    7
and
11
(
d
) of the
Canadian
    Charter of Rights and Freedoms
.

As to reasoning prejudice at paras. 144-145:

The major issue here
    is the distraction of members of the jury from their proper focus on the charge
    itself aggravated by the consumption of time in dealing with allegations of
    multiple incidents involving two victims in divergent circumstances rather than
    the single offence charged.

Distraction can take different forms. In
R. v.
    D. (L.E.)
(1987), 20 B.C.L.R. (2d) 384 (C.A.), McLachlin J.A. (as she then
    was) observed at p. 399 that the similar facts may induce

in the minds of
    the jury sentiments of revulsion and condemnation which might well deflect them
    from the rational, dispassionate analysis upon which the criminal process
    should rest.

[63]

As in
Handy
,
Huards evidence related to uncharged conduct and imported a separate
    criminal trial into the murder trial.

[64]

The improper use by the jury is yet more likely when the evidence of
    Huard is looked at in the
context of the rest of the Crowns case.
    Lusted was a classic
Vetrovec
witness. He met with police several
    times and told them several different stories regarding Masons disappearance.
    He clearly got the dates wrong, so the Crown based its theory of the dates on
    the phone records and the report of a fire. Lusted indicated that his last
    statement, which was consistent with his testimony, was the truth. At trial,
    videos of the earlier statements were played during his cross-examination. The
    evidence of the fire marshal was equivocal.

[65]

In
    light of these weaknesses in the Crowns case, there is an increased likelihood
    that the jury would engage in circular and propensity reasoning to jump the gap
    in the evidence. There was no correcting instruction given to the jury.

[66]

The
    trial judge provided the jury with the standard
White
instructions
    relating to after the fact conduct. However, there was no instruction to the
    jury connecting the law to the evidence. In particular:

·

The fact that Huard did not connect the plot to the murder of
    Mason;

·

The timing of the plot as opposed to the timing of Masons
    disappearance;

·

The lack of triggering event to the plot;

·

The frailties of Huards evidence apart from the criminal conduct
    referred to in the
Vetrovec
warning;

·

The several other reasons the appellant might have for wanting
    Lusted dead, including their life of crime together and the altercation with
    his wife.

[67]

The
    trial judge said this to the jury:

To decide the reason for what [the
    appellant] did or said, you should consider all of the evidence, particularly,
    of particular importance is evidence that offers other explanations for his
    conduct or these statements.

Defence counsel argues that Lusted had lots of information
    about [the appellants] life of crime that could send [the appellant] away
.
    Consider whether any of that could be as serious as murder and serious enough
    to cause [the appellant] to do away with Lusted
. [Emphasis added.]

[68]

By
    adding the phrase serious enough to cause the plot, the trial judge essentially
    gave the jury the answer to the question about why the appellant wanted to kill
    Lusted.

SUMMARY

[69]

I
    have concluded that the evidence of Huard was not probative and thus not
    admissible. In light of this conclusion, it is not necessary to address the
    fresh evidence.

DISPOSITION

[70]

I
    would allow the appeal and order a new trial.

M.L. Benotto J.A.

I agree K. Feldman J.A.

I agree M. Tulloch J.A.

Released: February 26, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall, 2018 ONCA 143

DATE: 20180213

DOCKET: C64050

MacPherson, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edward Hall

Appellant

Edward Hall, acting in person

Hannah Freeman, for the respondent

Danielle Robitaille, duty counsel

Heard: February 6, 2018

On appeal from the conviction entered on December 1, 2016
    and the sentence imposed on May 15, 2017 by Justice Laurie Lacelle of the Superior
    Court of Justice, sitting without a jury, with reasons reported at 2016 ONSC
    7418.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of offences relating
    to the stabbing of the victim.

[2]

The trial judge provided extensive and detailed
    reasons in which she rejected the appellants evidence, accepted the victims
    evidence, and then found the appellant guilty beyond a reasonable doubt.

[3]

We are not persuaded that the trial judge erred
    in the manner in which she dealt with evidence that the Crown relied upon to
    corroborate the victims evidence. In relation to the knife evidence, the trial
    judge was aware of the potential for contamination. She dealt with this
    evidence appropriately. Duty counsel concedes, quite rightly, that it was open
    to the trial judge to treat the Facebook evidence as corroborative of the
    victims account.

[4]

In all of the circumstances, the appeal is
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hussain, 2018 ONCA 147

DATE: 20180216

DOCKET: C62047

Sharpe, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Suleman Hussain

Appellant

Jennifer Penman, for the appellant

Michael Perlin and Jennifer Epstein, for the respondent

Heard: December 18, 2017

On appeal from the conviction entered on February 19,
    2015 by Justice M.L. Edwards of the Superior Court of Justice, sitting without
    a jury, and the sentence imposed on November 17, 2015, with reasons reported at
    2015 ONSC 7115.

Sharpe J.A.:

[1]

The appellant was convicted of five offences
    arising from the allegation that he transferred a firearm while on bail for
    other unrelated charges. He was sentenced to a total of 4 years and 6 months
    custody, less 3.92 years credit for pre-sentence custody. He appeals his
    conviction and seeks leave to appeal his sentence on the ground that the
    portion of s. 719(3.1) denying enhanced credit for pre-sentence custody on
    grounds of misconduct while on bail violates the s. 7
Charter
right
    not to be deprived of liberty except in accordance with the principles of
    fundamental justice. This appeal was argued together with
R. v.
    Meads
,
2018 ONCA 146
which raised
    the same
Charter
issues, the reasons for which
    are being released at the same time as these reasons.

Conviction Appeal

[2]

The sole ground for Hussains appeal from
    conviction is the submission that the verdict was unreasonable. At the oral
    hearing of this appeal, we did not call upon the Crown to respond to the
    conviction appeal and indicated that these reasons for dismissing the
    conviction appeal would follow.

[3]

The police believed that Hussain was selling
    drugs and that he might be in possession of a firearm. The crucial evidence
    relied on by the trial judge in convicting Hussain of the firearms offences was
    that of Officer Campbell, a member of the police surveillance team observing
    the house where Hussain lived with his mother. A car arrived at the house and
    the driver spoke to the appellant for approximately 30 minutes. The driver then
    backed his car into the driveway. Officer Campbell, the road boss of the
    surveillance team, was in a car which he testified was parked across the street
    and one or two houses down from that of the appellant. Officer Campbell
    testified that after the car backed into the driveway, the trunk opened and he
    saw Hussain walking towards the car carrying something that looked like a
    firearm wrapped in a white patterned blanket. Officer Campbell admitted that
    this observation took place within a second and was really quick. Another
    officer saw the appellant carrying an object towards the back of the car but
    could not see what it was. Officer Campbell relayed his observation to another
    officer so that the driver of the car could be arrested and searched. Within
    minutes the car was stopped and searched and a shotgun wrapped in a blanket was
    found in the trunk along with a tent and a toolbox. The driver of the car did
    not implicate Hussain and there was no other evidence, finger-print or DNA,
    connecting Hussain to the firearm.

[4]

Hussain submits that the verdict was
    unreasonable. He does not attack Officer Campbells credibility but submits that
    the trial judge erred by failing to recognize that Officer Campbells evidence
    was not reliable.

[5]

The appellant submits that Officer Campbells
    ability to make a reliable observation was impaired by several factors:

·

it was dark;

·

the distance between Officer
    Campbell and the driveway;

·

the fact that he was
    not using binoculars;

·

the fact that his view
    was at least partially obstructed by a school bus parked in the driveway;

·

the item he saw was
    wrapped in a blanket; and

·

his observation only
    took place in a split-second.

[6]

The appellant contends that there is a real risk
    that Officer Campbells evidence was tainted by hindsight bias flowing from the
    discovery of the firearm in the trunk of the car. The appellant also points out
    that there is no mention of a firearm in the notes of any members of the
    surveillance team; no evidence that the broadcast instructing the take-down of
    the driver mentioned a firearm; that the officers who stopped and arrested the
    driver did not immediately search the trunk of the car; and that Officer
    Campbells description of the blanket having a floral pattern is implausible
    given the conditions under which he made his observation.

[7]

I agree with the respondent Crown that Hussain
    has failed to meet the high threshold required for establishing an unreasonable
    verdict. I am not persuaded that no properly instructed judge or jury acting
    judicially could be reasonably satisfied that guilt was the only rational
    inference on this record. The trial judge, who had the advantage of seeing and
    hearing the witnesses, considered and rejected the submission that Officer
    Campbells observation was unreliable because of possible hindsight bias. He
    recognized the frailty of eyewitness evidence and carefully considered the
    contention that Officer Campbell could not have seen what he claimed. He
    pointed out that Officer Campbells observation that the appellant was carrying
    an item to the back of the car was corroborated by that of the other officer,
    even though that officer could not identify the item. Officer Campbell
    demonstrated for the court the way the blanket-wrapped object was being
    carried. This supported his evidence that the wrapped object was a firearm. The
    defence called a witness to show that Officer Campbell could not have made his
    observation because of the school bus partially obstructing his view. However,
    that witness conceded in cross-examination that if the school bus had been parked
    further down the driveway than he had assumed, Officer Campbell could have made
    his observation.

[8]

On this record, I am not persuaded that the
    trial judge committed any reviewable error by relying on the evidence of
    Officer Campbell to convict Hussain of the firearms offences or that the
    verdict was unreasonable.

Sentence Appeal

[9]

The trial judge sentenced the appellant to 4
    years and 6 months custody less 3.92 years credit for pre-sentence custody.
    The sole ground for his sentence appeal relates to the credit he was given for
    pre-sentence custody.

[10]

The time the appellant spent in pre-sentence
    custody is complicated by the fact that at the time he was arrested on the
    charges that are the subject of this appeal (the Ajax charges), the appellant
    was on bail in connection with earlier robbery with a firearm charges (the
    Toronto charges). He was arrested on the Toronto charges on January 7, 2012 and
    remained in custody until he obtained bail on April 20, 2012. He was arrested
    on the Ajax charges on November 20, 2012 and did not seek bail. On September
    30, 2014, the Crown sought and obtained an order pursuant to s. 524 of the
Criminal
    Code
revoking the appellants bail on the Toronto charges. The appellant
    was convicted of the Ajax charges on February 19, 2015 and sentenced on
    November 17, 2015 as follows:

·

s. 99(1)(b) firearm
    trafficking: 3 years

·

s. 92(3) knowing unauthorized possession of a
    firearm: 1 year (concurrent to the 3 years imposed for firearm trafficking)

·

s. 117.01 possession of
    a firearm contrary to a court order: 18 months (consecutive to the 3 years for
    firearm trafficking)

·

s. 145(3) breach of
    recognizance: 18 months (consecutive to the 3 years for firearm trafficking but
    concurrent to the 18 months for possession of a firearm contrary to a court
    order)

[11]

The appellant pleaded guilty to the Toronto charges
    after the disposition of the Ajax charges and was sentenced on January 6, 2016.
    He received 1.5:1 credit on the Toronto charges for the period of pre-sentence
    custody from the time of his arrest on January 7, 2012 until the time he
    obtained bail on April 20, 2012 but no credit for the period following the
    order revoking his bail on the Toronto charges on September 30, 2014.

[12]

The appellant brought a successful
Charter
challenge
    to the validity of the mandatory minimum three year sentence required for s. 99(2)
    firearm trafficking offences. No appeal is taken by the Crown from that ruling.

[13]

The appellant also brought a
Charter
challenge to the bail misconduct exclusion barring 1.5:1 credit for
    pre-sentence custody found in s. 719(3.1). The trial judge rejected that
    challenge and found that while the appellant was entitled to 1.5:1 credit for
    the 680 days from the time of his arrest on the Ajax charges (November 20,
    2012) until the Crown obtained an order revoking the appellants bail on the Toronto
    charges (September 30, 2014), the appellant was only entitled to 1:1 credit for
    the period following the revocation of bail.

[14]

At the hearing of this appeal, the court raised
    with counsel the issue of whether ss. 719(3) and (3.1) apply to the facts of
    this case. Subsections 719(3) and (3.1) provide:

719 (3) In determining the
    sentence to be imposed on a person convicted of an offence, a court may take
    into account any time spent in custody by the person
as a result of the offence

but the court shall
    limit any credit for that time to a maximum of one day for each day spent in
    custody.

(3.1) Despite subsection (3), if the
    circumstances justify it, the maximum is one and one-half days for each day
    spent in custody unless the reason for detaining the person in custody was
    stated in the record under subsection 515(9.1) or the person was detained in
    custody under subsection 524(4) or (8).
[Emphasis added.]

[15]

Was the appellant detained as a result of the
    offence[s] for which he was being sentenced, namely the firearms offences,
    after his bail on the Toronto charges was revoked? I am satisfied that the
    answer to that question is yes on the basis of this courts decision in
R.
    v. Barnett
, 2017 ONCA 897, [2017] O.J. No. 6102. While the facts of this
    case are not on all fours with those in
Barnett
, in that case, Doherty
    and Rouleau JJ.A. provided guidance to judges called upon to sentence offenders
    who face different sets of charges and who obtain bail on the initial charges
    but then are remanded on new charges. The court stated, at paras. 30-31:

What we draw from the case law is that ss. 719(3)
    and (3.1) require that there be some causal connection, a sufficient link or
    relation between the offence for which the offender is being sentenced and the
    pre-sentence custody. That relation or link can exist with more than one
    offence. It is not limited to the offence that directly triggered the detention,
    but will include offences that contributed to the denial of bail or, in the
    trial judges assessment, factored into the offenders decision to not seek
    bail on the charges that triggered the detention order.

There is no strict rule dictating what constitutes
    a sufficient link or relationship between the given charge and the pre-sentence
    custody so as to meet the as a result of standard. The sentencing judge will
    take into account relevant factors that might include the reasons for bail
    having been granted on the first set of offences and denied for the second set
    of offences; whether bail was sought on the later offences; whether there has
    been revocation of the bail on the first set of offences; the impact if any of
    the reverse onus provisions of ss. 515(6) or 522(2) of the
Criminal Code
;
    whether subsequent charges remain outstanding, have been withdrawn or stayed;
    the amount of pre-sentence custody accumulated; the nature and seriousness of
    the various charges; and the relationship, if any, that charges have to one
    another. In sum, the sentencing judge must be satisfied that the offences upon
    which he is sentencing the accused have some meaningful causative connection to
    the accuseds pre-sentence custody.

[16]

In my view, the application of that test indicates that the appellant
    was detained as a result of the Ajax charges following the revocation of his
    bail on the Toronto charges. Nearly two years passed between the appellants
    re-arrest on the Ajax charges, and the revocation of his bail on the earlier Toronto
    charges. However, he did not re-apply for bail. In the words of
Barnett
, common sense suggests that the appellants decision not to seek
    bail was likely influenced by the fact that the Ajax charges were laid while he
    was on bail for the Toronto charges:
Barnett
, at para.
    28. I note also that the presence of a firearm was a common feature in both sets
    of offences. I therefore conclude that the Ajax charges had some meaningful
    causative connection to the accuseds pre-sentence custody. This conclusion is
    supported by the fact that when he was sentenced on the Toronto charges, the
    sentencing judge only considered the appellants pre-sentence custody up to the
    time of his arrest on the Ajax charges, and did not address any time served in
    custody thereafter. If the appellant was not entitled to credit for that time
    in relation to the Toronto charges, he should be entitled to it on the Ajax charges.

[17]

The trial judge denied enhanced credit for the post-bail revocation
    period of pre-sentence custody for two reasons. First, he rejected the
    appellants
Charter
challenge to the bail misconduct exclusion. It
    follows from my reasons in
Meads
that I am of the view that the trial
    judge erred in his
Charter
ruling. In fairness to the trial judge, I
    would point out that he decided the point before the Supreme Court changed the
    landscape in this area with its decision in
R. v.
    Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180.

[18]

However,
    it is clear that if the trial judge had come to a different conclusion on the
    constitutional question, he would still have exercised his discretion to deny
    enhanced credit. Quite apart from the statutory bail misconduct exclusion,
    there is a discretion to deny enhanced credit where the detention was a result
    of the offenders bad conduct:
Summers
, at para. 71.

[19]

The
    appellant submits that the trial judge erred by denying enhanced credit on the
    facts of this case because the appellant had already been punished for the
    breach of recognizance and breach of the firearm prohibition order.

[20]

I
    agree with the appellants submission. He received what was, in my view, an
    entirely appropriate consecutive eighteen month sentence for the two breach
    offences, consecutive to the firearm trafficking sentence. The breach offences
    were serious and a significant deterrent sentence to maintain public confidence
    in the justice system was fully justified. However, while the fact that an
    offence was committed on bail may be taken into account in determining the
    appropriate amount of pre-sentence credit, the extent to which the breach has
    already been punished must also be considered: see
R. v. Colt
, 2015
    BCCA 190, 324 C.C.C. (3d) 1, at paras. 24-27. To impose an eighteen month
    sentence for the breaches, and then further deny the appellant the usual credit
    for pre-sentence custody on the basis of the same breaches would, in effect,
    punish him twice for the same misconduct: see
R. v. Campbell
, 2017
    ONSC 26, [2017] O.J. No. 633, at para. 62;
R. v. Bonneteau
, 2016 MBCA
    72, 330 Man. R. (2d) 139, at para. 22;
R. v. Allen
,

2015
    BCCA 479, 381 B.C.A.C. 19, at para. 20;
R. v. Vinepal
, 2015 BCCA 349, 375 B.C.A.C. 189, at para. 22
.

[21]

I
    realize that the discretion to deny enhanced credit for pre-sentence custody
    has been exercised in some cases where the accused was sentenced at the same
    time for the breach charges that led to the revocation of bail: see, e.g.,
R.
    v. Warren
(1999), 127 O.A.C. 193, [1999] O.J. No. 4591 (C.A.);
R. v.
    Morris
, 2013 ONCA 223, 305 O.A.C. 47. However, those cases did not involve
    sentences as significant as the sentence imposed for the breaches in this case
    and the double punishment point was not considered. In my view, where an
    offender is simultaneously being sentenced for breach charges and the charges
    that led to the recognizance or court order that was breached, it will
    ordinarily be preferable for the sentencing judge to deal with the breach by
    imposing a sentence commensurate with the seriousness of the breach. Such a sentence
    reflects the aggravating factor of committing an offence in breach of a court
    order and serves the purposes of sentencing, including deterrence, more
    directly and more appropriately than by denying enhanced credit for
    pre-sentence custody. In this case, the appellant was sentenced for the breach
    offences directly. He should not also be denied enhanced credit for the period
    of incarceration between the revocation of his bail and the imposition of his
    sentence due to the same breaches.

[22]

I
    do not, however, exclude the possibility that in some circumstances, such as where
    an offender attempts to game the system by causing delays in order to accrue additional
    enhanced pre-sentence credit, the denial of enhanced credit in addition to the
    sentence imposed for the breach may be justified. In such a case, however, it
    is the manipulation of the pre-sentence credit regime, and not the bail breach,
    that is targeted.

Disposition

[23]

Accordingly,
    I would dismiss the conviction appeal, grant leave to appeal sentence and order
    that the sentence be adjusted to reflect credit at the rate of 1.5:1 for the
    entire period of 1,092 days pre-sentence custody from November 20, 2012 to
    November 17, 2015, which I calculate to be 1,638 days credit, or 4.488 years
    credit rather than the 3.92 years given by the trial judge.

Robert J. Sharpe J.A.

I agree L.B. Roberts
    J.A.

I agree Fairburn J.A.

Released: February 16, 2018


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Kenegarajah, 2018 ONCA 121

DATE: 20180208

DOCKET: C56562, C56593, C56594, C57374, C62486 and C63299

Watt, Hourigan and Miller JJ.A.

DOCKET: C56562
    and C63299

BETWEEN

Her Majesty the Queen

Respondent

and

Ramanan Kenegarajah

Appellant

DOCKET:
    C56593

BETWEEN

Her Majesty the Queen

Respondent

and

Rajitha Kanagarajah

Appellant

DOCKET:
    C56594

BETWEEN

Her Majesty the Queen

Respondent

and

Anantha Neeranjan

Appellants

DOCKET:
    C57374 and C62486

BETWEEN

Her Majesty the Queen

Respondent

and

Kuhen
    Neshan

Appellants

Michael Dineen, for Anantha Neeranjan

Ian Kasper, for Rajitha Kanagarajah

Mark Halfyard, for Kuhen Neshan

Ian Smith, for Ramanan Kenegarajah

Michael Bernstein, for the respondent

Heard: November 20, 2017

On appeal from the convictions entered on October 12,
    2012 by Justice Joseph A. De Filippis of the Ontario Court of Justice, with
    reasons reported at 2012 ONCJ 636.

Hourigan J.A.:

Introduction

[1]

The appellants were tried on an Information containing over 100 counts
    related to a large-scale credit card fraud and money laundering scheme that
    operated over several years. They were convicted of various offences, including
    fraud over $5,000, participation in a criminal organization, identity theft,
    possession of property obtained by crime, and money laundering.

[2]

The appellants raise various grounds of appeal, some unique to their
    individual cases and some that overlap among some or all of them. These grounds
    of appeal are considered in detail below. In summary, I would dismiss all of
    the appeals, save for that part of Ramanan Kenegarajahs appeal wherein he
    submits that he was convicted of counts with which he was not charged.

Facts

[3]

The following brief factual summary is sufficient to place the issues in
    these appeals in context.

[4]

A bust out fraud starts with a perpetrator gaining access to a
    persons bank or credit card account and then creating a fraudulent credit
    profile. A credit card is applied for and issued by a financial institution.
    The low initial credit limit is gradually increased after the fraudster makes a
    series of small purchases and payments. Once the credit limit is increased to a
    sizeable amount, the fraudster makes large purchases and obtains cash advances.
    They then abandon the credit card, leaving the financial institution that
    issued it with an unpaid debt.

[5]

Before considering the circumstances of the charges, it is helpful to
    identify the appellants and their interrelationships. Mr. Kenegarajah (formerly
    known as Kanagarajah) is the brother of Rajitha Kanagarajah. Kuhen Neshan is
    married to Anantha Neeranjan.

[6]

In 2001, authorities were alerted to suspected bust out frauds
    discovered by the Manager of Security at American Express (AMEX). Mr. Neshan,
    an employee of AMEX, came under suspicion and inquiries into his activities
    revealed that he accessed 21 different credit card accounts. Although police
    investigated the frauds and conducted a search of a Toronto residence in
    connection with Mr. Neshan, he was never charged in relation to these
    activities.

[7]

In 2007, police in British Columbia investigated reports that Mr. Neshan
    and Mr. Kenegarajah were involved in financial impropriety at a Hindu temple. The
    police located the men and maintained surveillance on them. Mr. Kenegarajah was
    arrested for fraud. Ultimately, however, the Crown in British Columbia did not
    prosecute Mr. Kenegarajah.

[8]

The story resumes in Ontario in 2009. The Durham Regional Police
    investigated a complaint from a British Columbia resident regarding fraudulent
    credit cards that were opened in his name, one of which had been used at an
    automobile store in Markham, Ontario. The police determined that the
    transaction was linked to a 2008 Land Rover leased to Ms. Kanagarajah. Further
    investigation revealed that a 2001 Audi A6 was also registered to Ms.
    Kanagarajah.

[9]

The police conducted surveillance on these vehicles, which revealed a
    pattern of activity by Mr. Neshan and Mr. Kenegarajah. On weekday mornings the
    two men would leave from 30 Bissland Drive, Ajax, and travel throughout the
    Greater Toronto Area, conducting various bank transactions, visiting retail
    stores and post office boxes, and using credit cards in other peoples names.
    Throughout the day they would stop off at 30 Bissland Drive and other
    residences. They were never observed attending a legitimate place of employment
    or business. The police believed that the activities were consistent with a
    pattern of bust out frauds.

[10]

On
    March 3, 2010, Mr. Neshan and Mr. Kenegarajah were stopped by police while driving
    the Land Rover, and arrested. Cash, credit cards in the names of other people,
    gift cards, cheques in the names of other people, bank receipts, ledger books
    containing handwritten names, addresses and other data, were all seized.

[11]

Search
    warrants were executed at 30 Bissland Drive, Ajax and at 311-11753 Sheppard
    Avenue East, Scarborough. Among the material seized as a result of the search
    warrants were over 50 credit cards in the names of people other than the
    accused, data for several individuals and financial institutions, over $100,000
    in cash, multiple mobile phones, electronics and other luxury goods. The
    records for the mobile phones were accessed and revealed over a thousand calls
    to six financial institutions.

[12]

Multiple
    charges were laid against the appellants. The Crown submitted that over a
    period of 10 years Mr. Neshan and Mr. Kenegarajah primarily carried out the
    bust out frauds, assisted by the other appellants. The Crowns case consisted largely
    of evidence from the affected financial institutions, surveillance evidence,
    and evidence from the searches.

[13]

At
    the end of their trial, counsel for Mr. Neshan and Mr. Kenegarajah brought a
    motion to have certain counts quashed on the basis that they violated the
    single transaction rule as set out in s. 581(1) of the
Criminal Code of Canada
,
R.S.C., 1985, c. C-46. The trial judge found, however, that each of the
    impugned counts alleged a single transaction and complied with s. 581(1).

[14]

The
    trial judge dismissed the conspiracy charges as against all defendants. Mr.
    Kenegarajah and Mr. Neshan were found guilty of the global charges of fraud,
    money laundering, and participating in a criminal organization as well as most
    of the other substantive counts. Ms. Neeranjan and Ms. Kanagarajah were also found
    guilty of participating in a criminal organization and a few other substantive
    counts.

Issues

[15]

The
    issues raised in these appeals and my conclusions on each issue may be
    summarized as follows:

(i)

Did counts in the Information against Mr. Kenegarajah
    and Mr. Neshan offend the single transaction rule in violation of s. 581(1) of
    the
Criminal Code
?

No.
The impugned counts were broadly
    framed, spanned a number of years, encompassed multiple transactions in
    different locations and, in some cases, involved different or additional
    perpetrators. However, there is no basis to conclude that the trial judge erred
    in dismissing the motion to quash. He identified and applied the correct legal
    principles and appropriate factors that are relevant in determining whether a
    count violates the single transaction rule. The trial judges conclusion was
    justified based on his finding that the appellants conduct amounted to a
    single, large-scale fraudulent scheme and that they suffered no prejudice as a
    consequence of how the counts were framed.

(ii)

Did the trial judge convict Mr. Kenegarajah on
    counts for which he was not charged?

Yes. It would appear that through inadvertence
    the trial judge entered convictions on counts for which Mr. Kenegarajah was not
    charged. While he was not sentenced on these counts, the convictions must be
    quashed.  There was also a typographical error regarding convictions on count 1
    versus count 2 that must be rectified.

(iii)

Did the trial judge provide insufficient reasons and err in finding
    beyond a reasonable doubt that Ms. Neeranjan had knowledge and control of
    property obtained by crime?

No. The trial judge provided sufficiently
    detailed reasons in convicting Ms. Neeranjan on the counts of possession of
    property, including currency, obtained by crime over $5,000. The convictions were
    well rooted in the evidence and free of legal error.

(iv)

Did the trial judge err in concluding that Ms.
    Kanagarajah obtained a mortgage on the strength of a false employment
    confirmation letter?

No. There was compelling evidence to ground an
    inference that the employment confirmation letter was relied upon by the
    complainant in authorizing the mortgage transaction.

(v)

Did the trial judge err in finding that
Ms.
    Kanagarajah and Ms. Neeranjan knowingly
participated in a
    criminal organization?

No
.
The trial judge did not err
    in his application of the test for a criminal organization or otherwise err in
    law. There was ample evidence that demonstrated they were members of a criminal
    organization and knowingly participated in its activities to facilitate or
    commit indictable offences.

Analysis

(i)

Single Transaction Rule

[16]

The single transaction rule is set out in s. 581(1) of the
Criminal
    Code
:

581(1) Each count in an indictment shall in general
    apply to a single transaction and shall contain in substance a statement that
    the accused or defendant committed an offence therein specified.

[17]

On appeal, Mr. Kenegarajah and Mr. Neshan submit that the trial
    judge erred in failing to quash the following eleven counts for violating the
    single transaction rule:

Ct.

Offence

Complainant

Time period

1

Fraud over $5,000

the public

Jan. 1, 2001 - March 3, 2010

3-10

Fraud over $5,000

Each count related to a
          different financial institution: Bank of Montreal Mastercard, JP Morgan
          Chase, Canadian Tire Mastercard, MBNA Canada Mastercard, Capital One
          Mastercard, HBC Mastercard, CIBC Visa, American Express

Jan. 1, 2001 - March 3, 2010

64

Impersonation

numerous victims

Jan. 1, 2001 - March 3, 2010

92

Money laundering

n/a

Jan. 1, 1997 - March 3, 2010

[18]

These
    appellants submit that the trial judge failed to engage in the proper analysis
    of the single transaction rule.  Instead, he focused on the lack of prejudice to
    these appellants and their failure, earlier in the trial, to object to the
    counts or to seek a remedy such as particulars or severance. These appellants
    also submit that the trial judge failed to consider that relaxation of the
    single transaction rule is only permissible in exceptional circumstances, none
    of which were present in this case. With respect to prejudice, these appellants
    submit if it is necessary to show prejudice, that they were prejudiced by how
    the counts were framed.

[19]

Mr.
    Kenegarajah and Mr. Neshan further submit that the evidence established that
    the alleged fraudulent activity consisted of a number of discrete transactions,
    which should have been charged separately.  They note that the counts span an
    extended length of time (9 years and 13 years) and that, within the charge
    periods, there were extended gaps where there was no evidence of fraudulent
    activity.  They also emphasize that the alleged activities victimized different
    individual and institutional complainants, occurred in different locations and
    involved different perpetrators (
i.e.
not every accused was involved in
    each of the fraudulent transactions).  The combined effect of these factors is
    that the counts, as particularized, cannot be considered a single transaction.

[20]

Finally,
    these appellants rely on similarities between the facts of their case and this
    courts decision in
R. v. Rafael
,
[1972] 3 O.R. 238 (C.A.) in
    submitting that the trial judge erred in finding that the conduct in this case
    could be considered a single transaction.

[21]

I
    would not give effect to any of these arguments and would dismiss this ground
    of appeal.

[22]

Mr.
    Kenegarajah and Mr. Neshan are correct in submitting that their failure to
    raise the single transaction rule earlier in the trial, or to seek a remedy
    such as severance or particulars, is not fatal to this ground of appeal. It is,
    however, a telling indicator that the accused [were] not prejudiced by the
    indictment as drafted:

R. v. S. (H.S.)
, 2009 ONCA 102, 265
    O.A.C. 206, at para. 25. See also:
R. v. K. (C.)
(1999), 127 O.A.C.
    261, at para. 11 (C.A.).

[23]

Counsels
    arguments regarding prejudice must be considered in light of the underlying
    purpose of the single transaction rule: to ensure that an accused is aware of
    the charge against him or her and is able to make full answer and defence:
R.
    v. Chamot
, 2012 ONCA 903, 302 O.A.C. 104, at paras. 36-37;
R. v.
    Katigbak
, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 82. The validity of a
    count is to be assessed in light of this purpose.

[24]

Avoiding
    prejudice is the underlying purpose of the single transaction rule, and the
    presence (or absence) of prejudice is therefore a critical component of the
    test to determine whether a particular count offends that rule.  The
    significance of prejudice is also reflected in s. 590(2) of the
Criminal Code
,
    which allows an accused to seek remedies in respect of a count that offends the
    single transaction rule, but only on the ground that the count, as framed,
    embarrasses him in his defence.

[25]

A
    lack of prejudice was a significant  if not determinative  factor in
Katigbak.
There, the Supreme Court of Canada
    concluded
that the impugned count was not invalid for violating the
    single transaction rule, even though it would have been preferable to divide
    the count.

[26]

Similarly,
    the significant role that the presence (or absence) of prejudice plays in
    determining whether a count is invalid due to violating the single transaction
    rule is reinforced by a brief survey of the decisions of this court.  In the
    following cases this court cited a lack of prejudice to the appellant in
    dismissing an appeal on this ground:
S. (H.S.)
,
at para. 24;
K.
    (C.)
, at para. 11;
R. v. Canavan
,
[1970] 3 O.R. 353
    (C.A.), at paras. 17-19;
R. v.
Hulan
,
[1969] 2 O.R. 283 (C.A.), at paras. 29 and
    32-33.
In contrast, in the following two cases this court cited
    prejudice to the appellant in allowing an appeal on this ground:
R. v.
    Selles
(1997), 34 O.R. (3d) 332 (C.A.), at paras. 33-36; and
R. v. Monk
,
    [1988] O.J. No. 94 (C.A.), at paras. 17-19.

[27]

In
    oral submissions counsel for Mr. Neshan submitted that these appellants were
    prejudiced because there were potential issues or defences that could have been
    raised, for example, the existence of a potential alternative suspect in
    relation to the 2001 AMEX activity.  In my view, this argument fails to establish
    prejudice.  Even assuming that any such potential defences existed, the
    appellants have not demonstrated that it was somehow not open to them to pursue
    those defences because of how the Information was drafted.

[28]

I
    note as well that the trial judge granted a similar fact application due to the
    interwoven and interrelated nature of the offences.  Therefore, even if the
    impugned counts had been divided, evidence in relation to each count would have
    been admitted and been available for use as similar fact evidence across all
    counts.

[29]

It
    must be noted that the defence strategy at trial was simply to hold the Crown
    to the strict proof of its case.  To paraphrase the conclusion of McLachlin
    C.J. and Charron J. in
Katigbak
, there can be no suggestion that the appellants
    in this case were not aware of the case they had to meet at trial, or that they
    were somehow hampered in conducting their defence.  It is not sufficient to
    say, as counsel did in his oral submissions in this case, that the framing of
    the counts
could
have affected how the appellants conducted their
    defence.

[30]

Mr.
    Kenegarajah and Mr. Neshan submit that the trial judge failed to acknowledge or
    appreciate that relaxation of the single transaction rule is permissible in
    exceptional circumstances only, and is not the norm. In my view, the
    appellants submission about what qualifies as an exceptional case is too
    narrow. A case will fall within the exception to the single transaction rule as
    long as the acts encompassed within the count can be treated as one
    transaction.

[31]

In
R. v. Rocchetta
, 2016
    ONCA 577, 352 O.A.C. 130, at para. 44, this court identified the different
    factors that may make a series of acts a single transaction:

A series of acts that are sufficiently
    connected will make up a single transaction for the purposes of s. 581(1). The
    sufficiency of the connection will depend on the circumstances. The requisite
    connection may be established by the proximity in time or place of the acts,
    the identity of the parties to the acts, the similarities of the conduct
    involved in the acts, the ongoing relationship of the parties to the acts, or
    other factors tending to show that each act is properly viewed as part of the
    larger whole: see
R. v. Hulan
, [1969] 2 O.R.
    283
(Ont. C.A.).

[32]

Applying
    these factors to the present case, the trial judge was justified in finding
    that the conduct amounted to a single transaction.  While the acts did not
    necessarily share proximity in time, place or complainants, the trial judge did
    find that they shared strong similarity in the nature of the conduct involved; the
    conduct was part of a large and sophisticated bust out fraud scheme perpetrated
    by both these appellants over several years.

[33]

Finally,
    the appellants rely on what they submit are factual similarities between their
    case and this courts decision in
Rafael
.  However,
Rafael
involved allegations of fraud carried out over a period of five years, involving
    24 different complainants.  After reviewing a number of authorities, including
Hulan
and
Canavan
, the court, at paras. 18-19, found that the conduct did
    not amount to a single transaction:

The result therefore was that this became an indictment in
    which 24 persons were alleged to have been defrauded, on dates varying widely
    in time, by offences taking place at different localities and involving
    different amounts, but more importantly, involving also quite different
    representations to the individuals who were called as witnesses.

After careful consideration, we are not able to conclude that
    the events which the Crown proved in this case can be regarded as occurrences
    which together form a single transaction.

[34]

These
    appellants submit that
Rafael
is more consistent with the facts of
    this case than the authority relied upon by the trial judge. I disagree. In
Rafael
,
    the most significant consideration identified by the court was that the nature
    of the impugned conduct in relation to each complainant was inconsistent. This
    is reinforced by how the court in
Rafael
characterized the material
    facts in
Hulan
and in
Canavan
, at paras. 10 and 15,
    respectively, emphasizing that the presence of a similar pattern of conduct in
    those cases led to a different result
.
Mainly, to a finding that the
    single transaction rule was not violated.

[35]

In
    my view,
Rafael
should be distinguished on the basis that, in the
    present case, the trial judge found that the nature of the impugned conduct was
    similar. The various offences encompassed by the counts were part of a global
    bust-out scheme operated for several years by the appellants.

[36]

In
    summary, I am not satisfied that the trial judge erred in his analytical
    approach to this issue. He was entitled to consider the appellants failure to
    raise the single transaction rule or to seek a remedy earlier in the trial. He
    was also justified in emphasizing the lack of any prejudice suffered by the
    appellants. It is clear from his reasons that, notwithstanding finding a lack
    of prejudice, the trial judge went on to consider, based on an application of
    the appropriate legal principles to the evidence and circumstances of the case,
    whether the various incidents of impugned conduct in the case before him were
    so closely related as to amount to a single transaction. It follows from the
    foregoing that I would reject this ground of appeal.

(ii)

Errors Regarding Counts

[37]

After
    a careful review of the Information and the trial judges reasons, it is clear
    that Mr. Kenegarajah was convicted of counts for which he was not charged.
    Crown counsel has provided this court with a sentencing document that clarifies
    that this appellant was not sentenced on these charges. While that is of some
    comfort, the fact remains that Mr. Kenegarajah was convicted of offences with
    which he was not charged. An order will go quashing Mr. Kenegarajahs convictions
    on counts 53, 56, 58, and 59.

[38]

In
    addition, there is a typographical error in the trial judges reasons. He
    acquitted all of the accused on count 2 yet entered a conviction for Mr. Kenegarajah
    and Mr. Neshan on this count in his reasons and the Information. It is clear
    that he entered the conviction on count 2 instead of count 1. For these two
    appellants, the convictions on count 2 will be quashed and acquittals will be entered.
    In addition, for these two appellants, convictions will be entered on count 1.

(iii)

Possession of Property Obtained by Crime

[39]

Ms.
    Neeranjan submits the trial judge failed to provide sufficient reasons in
    support of his finding that she had the requisite knowledge and control of
    property obtained by crime. She further submits the trial judge relied on
    speculation rather than evidence in convicting on these counts, and that he
    erred in finding that wilful blindness could be inferred.

[40]

The
    trial judge provides reasons for the conviction on these counts, at para. 158,
    as follows:

Kenegarajah, Neshan, and the latters wife, Anantha
Neeranjan
are charged with possession of property by
    crime, namely furniture, electronics, and appliances (count 55) and money
    (count 57) on March 3, 2010. Counsel for
Neeranjan
submits
    there is no proof that she knew about her husbands activities. The uncontradicted
    evidence belies this submission. The most important relevant paragraphs are 60,
    62, 64, 67 and 70 with respect to the search warrant at 30 Bissland Drive. The
    home was filled with the proceeds of crime, including furnishings, credit
    cards, cell phones and money stashed in various places. All items would be in
    plain view or accessible to the woman of the household. There is nothing to
    suggest
Neeranjan
could reasonably believe the two
    men were lawfully employed. There is nothing to suggest she could reasonable
    believe the property was legitimately purchased or that there was some
    plausible explanation for why over $100,000.00 was strewn about, rather than
    deposited in a bank. Indeed, the evidence points to her knowledge of the
    criminal conduct of Neshan and Kenegarajah. At best, she was wilfully blind. In
    any event, I have no doubt all are guilty.

[41]

The
    law regarding insufficient reasons is well established and need not be
    considered in detail. Broadly, a trial judge has a duty to provide reasons that
    explain the result, foster public accountability, and permit effective
    appellate review:
R. v. M. (R.E.)
,
2008 SCC 51, [2008] 3 S.C.R.
    3, at para. 15.  A claim of insufficient reasons is not a free-standing ground
    of appeal and an appeal will only be allowed where the reasons foreclose
    appellate review:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    para. 10.  If an appeal court encounters difficulty in reviewing reasons, it
    may supplement the reasons by considering them in the context of the evidentiary
    record:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 52
    and 55.

[42]

Do
    the trial judges reason on this count permit appellant review? In my view,
    they do. The trial judge undertook a very detailed review of the evidence in
    the first part of his analysis. When he considered the various charges, he did
    not repeat the factual findings made earlier. For these charges, he referenced
    the paragraphs that detail the search of Ms. Neeranjans home and noted that
    the items were all visible to her. There was no direct evidence of knowledge or
    control but the trial judge held that the circumstantial evidence was
    sufficient to ground a finding that she had both knowledge and control of the
    proceeds of crime. While it is open to this appellant to challenge that
    analysis, and she does, it cannot be said that the reasons do not permit
    meaningful appellant review. The task for this court is to determine whether
    the trial judges findings were available to him on the evidence. I turn next
    to that issue.

[43]

This
    appellant submits that there was no evidence that she ever entered Mr.
    Kenegarajahs room in which much of the cash and credit cards were kept, and as
    such, knowledge has not been established. Further, she argues that there was no
    evidence of control, as mere indifference or passive acquiesce to the presence
    of stolen goods does not amount to control for the purpose of establishing
    illegal possession.

[44]

In
    submitting that there was an insufficient evidentiary basis for the findings of
    guilt, this appellant is essentially making an unreasonable verdict argument.
    The test for appellate intervention is whether the finding is one that a trier
    of fact, acting judicially, could reasonably have rendered:
R. v. Jackson
,
    2007 SCC 52, [2007] 3 SCR 514, at para. 2.

[45]

In
    my view, the trial judges findings of guilt are well grounded in the evidence
    and were open to him to make. Count 55 relates to the furniture, electronics,
    appliances and household articles at 30 Bissland Drive where she lived with
    her husband Mr. Neshan, and Mr. Kenegarajah. It is clear on the evidence that
    the house was full of furniture, electronics, appliances and household goods
    and that these items were in plain view. In these circumstances, it was an
    available inference to the trial judge that this appellant had custody, access
    and exercised control over the property.

[46]

Count
    57 relates to the currency found in the appellants home at 30 Bissland Drive.
    The police found over $100,000 cash in different currencies and denominations
    in various places in the home, which were either in plain view or accessible to
    Ms. Neeranjan. As such, there was an available inference on the evidence that
    this appellant had possession and control over the currency. Therefore, the
    finding of guilt on this charge was not unreasonable.

[47]

Ms.
    Neeranjan complains that the trial judge did not adequately analyze whether
    there was sufficient evidence to establish that she was wilfully blind. In my
    view, this argument is of no assistance to this appellant given that the trial
    judge made a positive finding that she knew of the criminal conduct of Mr.
    Neshan and Mr. Kenegarajah. This positive finding of knowledge rendered the
    issue of willful blindness irrelevant.

[48]

Finally,
    Ms. Neeranjan submits that the trial judge reversed the burden of proof when he
    stated, at para. 158, there is nothing to suggest that [she] could reasonably
    believe the two men were lawfully employed. However, that statement needs to
    be considered in context. It followed a detailed consideration of the evidence
    against the appellants. That evidence established to the trial judges
    satisfaction that Mr. Neshan and Mr. Kenegarajah worked full-time on the fraud
    scheme and there was nothing to suggest that they were lawfully employed. There
    was no reversal of the onus. This was merely an available inference drawn from
    the evidence.

[49]

I
    would not give effect to this ground of appeal.

(iv)

Mortgage Fraud

[50]

Ms.
    Kanagarajah was charged, among other counts, with fraud over $5,000. The
    circumstances of the offence are as follows. This appellant purchased a home
    with a mortgage obtained from Home Trust Company. The Crown tendered business
    records from Home Trust Company regarding the mortgage application. Those
    records included an unsigned mortgage application and an employment
    confirmation letter from a Richard Frank on the letterhead of World Golden
    Stone Inc., which stated that this appellant worked for that company at a
    salary of $118,000 per annum. The owner of World Golden Stone Inc. testified at
    trial that neither Ms. Kanagarajah nor anyone with the name Richard Frank ever
    worked for the company. The Crown led no
viva voce
evidence from Home
    Trust Company regarding the mortgage approval process.

[51]

Ms.
    Kanagarajah submits that this conviction is unreasonable because the Crown
    failed to prove an essential element of the offence, namely, that the Home
    Trust Company relied upon the false employment confirmation letter submitted as
    part of the mortgage application to its detriment. This appellant also argues
    that the reasons are not sufficient given the lack of evidence of reliance.

[52]

I
    would not give effect to this ground of appeal.  Again, the issue is whether
    the finding is one that a trier of fact, acting judicially, could reasonably
    have rendered.  This appellant has not met this stringent test.

[53]

Was
    it reasonable to conclude that there was detrimental reliance by Home Trust
    Company? In my view, there is a strong available inference on this issue that
    was open to the trial judge. That inference is supported by the following
    facts. It is not disputed that the mortgage funds were advanced. It is also not
    disputed that the letter formed part of the business records of Home Trust
    Company. On the face of the letter there is a handwritten note indicating
    verbally confirmed with Richard Frank on 12/2 @3:30, followed by a signature.
    I note that the letter is a business record and is, therefore, an exception to
    the hearsay rule.

[54]

It
    is difficult to fathom how the inference drawn by the trial judge on these
    facts could be considered unreasonable. Indeed, the inference is almost
    inescapable. The mortgage form indicated that this appellant was employed by
    World Golden Stone Inc. and was earning $118,000 annually. The letter that
    formed part of the application supported that information. The note on the
    letter is clear evidence that the information was confirmed via a telephone
    call. Why would Home Trust Company confirm information if it were not relying
    upon it? Finally, mortgage funds were advanced. The causation inference made by
    the trial judge was well supported by the evidence and was not unreasonable. Further,
    there is no merit to the submission that the reasons are insufficient. This
    ground of appeal should also fail.

(v)

Criminal Organization

[55]

Ms.
    Kanagarajah submits that the trial judge adopted an incorrect legal analysis
    regarding the determination of when a group of persons becomes a criminal
    organization. In finding that a criminal organization existed during the period
    February 1, 2005 to March 3, 2010, the trial judge, at paras. 131-132,
    referenced the definition of a criminal organization described in
R. v.
    Atkins
, 2010 ONCJ 262, at para. 25:

Count 54 alleges the defendants participated in a criminal organization.
Section 467.11(1)
of
    the
Criminal Code
criminalizes the knowing participation or contribution to a criminal
    organizations legal or illicit activities. It does not require a criminal act
    itself and the accused do not need to be a member of the organization. In
R.
    v. Atkins et al.
,
2010 ONCJ 262 (CanLII)
,
    it was held that:

Any reasonable interpretation of the statute would suggest
    that a criminal organization is at minimum, nothing more than: any three
    persons, however organized, who associate for more than offence, to commit
    serious offences for the benefit of at least one person in that group.
    Maximum flexibility is achieved by the use of the words however organized. There
    are no requirements for (a) formally defined roles; (b) continuity of
    association; or (c) a developed structure. While it is helpful if the group
    obligingly adopts a name associated with some notoriety, or dresses in a
    certain manner with coloured accessories or patches, or establishes a
    territory, the fact is that no particular group structure or organization is actually
    required. Nonetheless, the persons who constitute the group, however
    organized are only associates of a criminal organization to the extent they
    share its criminal objectives.

I agree, on the basis of
Atkins
,
that in this case the Crown must prove that:(a) a criminal
    organization existed during the period February 1, 2005 and March 3, 2010; (b) each
    defendant participated in the group or contributed to its activities; and (c)
    each defendant had knowledge           that the group he or she associated with
    had as one of its main criminal purposes the facilitation of the offences of
    credit card fraud and identity theft and knowledge that his or her involvement
    in this activity would likely result in a direct or indirect benefit to the
    group or any person in the group.

[56]

Ms.
    Kanagarajah argues that
the Supreme Court
    of Canada in
R. v. Venneri,
2012
    SCC 33,

[2012] 2 S.C.R.
    211

effectively

overruled
Atkins
, when it concluded, at para. 29, that a
    criminal organization must have some measure of continuity of association and a
    developed structure: by insisting that criminal groups be organized,
    Parliament has made plain that some form of structure and degree of continuity
    are required to engage the organized crime provisions that are part of the
    exceptional regime it has established under the
Code
.

[57]

Ms.
    Kanagarajah further submits that the trial judge compounded this legal error by
    failing to recognize or consider the effect of evidence that cast doubt on
    whether a criminal organization existed and whether she knowingly participated
    in that organization.  She submits that there was no evidence of her being part
    of an ongoing course of conduct, given that she was acquitted of global
    conspiracy and money laundering charges. Further, there was the possibility, not
    considered by the trial judge, that she was only brought into the group for the
    single mortgage fraud offence. In addition, she argues that there was no evidence
    of whether she knew she was participating in a criminal organization or intended
    to commit the mortgage fraud for the benefit of the group.

[58]

Ms.
    Neeranjan also appeals her criminal organization conviction. She submits that
    the trial judges reasons on this count were insufficient for meaningful
    appellant review. Further, she argues the trial judge conducted no analysis of
    whether she advanced the interests of the criminal organization, knowing that
    the group had the characteristics of a criminal organization or for its
    benefit.

[59]

Finally,
    Mr. Kenegarajah submits that Ms. Kanagarajahs and Ms. Neeranjans appeals of
    their criminal organization convictions should be allowed and, if they are, his
    conviction on that charge should be set aside because the statutory definition
    of criminal organization, being composed of three or more persons, has not been
    satisfied.

[60]

I
    would not give effect to any of these grounds of appeal.

[61]

First,
    with respect to the alleged legal error, it is true that the trial judge
    referenced a case that is inconsistent with
Venneri
to the extent that
    it suggests structure and continuity are not necessary in a criminal
    organization. However, in his reasons, at para. 170, the trial judge found both
    structure and continuity:

Different considerations apply with respect to the criminal
    organization count. Having regard to all my conclusions, I have no doubt that a
    criminal organization existed between 2005 and 2010. Neshan and Kenegarajah were
    the leaders of this group. Neshans wife, Neeranjan, and Kenegarajahs sister,
    Kanagarajah, participated in the group and contributed to its activities, as
    set out above. All four individuals knew the group had as its criminal purpose
    the facilitation of credit card fraud and identity theft and each one benefited
    to a greater or lesser extent. This meets the criteria provided for in s. 467.1
    of the
Code
. For reasons already stated, I am not confident that these
    observations apply to Nesarajah. Accordingly all but Nesarajah are found guilty
    of this offence.

[62]

In
    his analysis, therefore, the trial judge followed the dictates of
Venneri
and made the necessary factual findings regarding the nature of the enterprise
    to ground a finding of participation in a criminal organization.

[63]

Despite
    the submissions of Ms. Kanagarajah and Ms. Neeranjan, there was ample evidence
    that demonstrated they were members of a criminal organization and knowingly
    participated in its activities to facilitate or commit indictable offences.  I
    note that these appellants do not contest the evidence presented by the Crown
    at trial establishing an enterprise in common between Mr. Neshan and Mr.
    Kenegarajah to defraud individuals and financial institutions.

[64]

The
    properties purchased in Ontario, as part of the fraudulent scheme, include
    311-11753 Sheppard Avenue East, Scarborough; 30 Bissland Drive, Ajax; 47 Portelli
    Crescent, Ajax; 87 Portelli Crescent, Ajax; and 1640 Pennel Drive, Oshawa. These
    transactions permitted the organization to launder the proceeds of crime and
    the properties were used as drop locations for mail from financial institutions
    that were victimized in the fraud. The Pennel Drive property was in the name of
    Ms. Kanagarajah. She also leased the Land Rover used by Mr. Neshan and Mr.
    Kenegarajah to commit the bank and credit card frauds. A police search of the
    Land Rover revealed evidence of the fraud, including two bust out ledgers used
    to keep track of the numerous false identities. A search of 311-11753 Sheppard
    Avenue East, Ms. Kanagarajahs residence, revealed approximately 13 mobile
    phones. Those phones were used to make over a thousand telephone calls to the
    financial institutions that were the victims of the fraud. It was open to the
    trial judge, based on this evidence, to find that Ms. Kanagarajah was knowingly
    complicit in the criminal organizations activities.

[65]

Similarly,
    title to the Portelli Crescent properties were in Ms. Neeranjans name.  The
    trial judge expressly found that the properties were purchased as a means to
    launder crime proceeds. He also concluded that this appellants ownership of a
    gas station was part of the same fraudulent scheme to launder money. There was,
    therefore, an evidentiary basis for the trial judges finding that Ms.
    Neeranjan knowingly participated in the criminal organization. His reasons in
    this regard are sufficient, as they do not foreclose appellate review.

[66]

It
    follows that Mr. Kenegarajahs submission that his conviction on this charge
    should be set aside because the statutory definition of criminal organization
    has not been satisfied must fail.

Disposition

[67]

I
    would dismiss all of the appeals, save for that part of Mr. Kenegarajahs
    appeal wherein he submits that he was convicted of counts with which he was not
    charged. I would allow that part of the appeal and quash Mr. Kenegarajahs convictions
    on counts 53, 56, 58, and 59. In addition, for Mr. Kenegarajah and Mr. Neshan,
    I would quash the convictions on count 2 and enter acquittals in their place,
    and I would enter convictions on count 1 for both of these appellants.

Released: D.W. February 8, 2018

C.W.
    Hourigan J.A.

I
    agree. David Watt J.A.

I
    agree. B.W. Miller J.A.