COURT OF APPEAL FOR ONTARIO

CITATION: R v. Beauchamp, 2015 ONCA 260

DATE: 20150417

DOCKET: C51916, C51918, C51949, C52248

Cronk, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Henry
    Charles Beauchamp, Catherine Margaret Brunet,

Robert
    Cattral and Ravi Rabbi Shanghavi

Appellants

Stuart Konyer, for the appellant Henry Beauchamp

Ian Smith and Amy Ohler, for the appellant Catherine Brunet

Marie Henein and Christine Mainville, for the appellant Robert
    Cattral

Ian Carter, for the appellant Ravi Rabbi Shanghavi

Randy Schwartz, Peter Scrutton and Holly Loubert, for
    the respondent

Heard: October 14 and 15, 2014

On appeal from the convictions entered by Justice Robert
    J. Smith of the Superior Court of Justice, sitting without a jury, on November
    16, 2009 and the sentences imposed on April 6, 2010, with reasons reported at
    [2009] O.J. No. 4872, and 2010 ONSC 1973.

BY THE COURT:

OVERVIEW

[1]

The appellants were each convicted of a number of fraud-related offences
    arising out of a widespread credit and debit card skimming scheme.  In
    addition, all except Mr. Shanghavi were convicted of participating in a
    criminal organization and committing an indictable offence for the benefit of a
    criminal organization.  They received sentences ranging from 15 months to 7
    years imprisonment.

[2]

Crimes relating to fraudulent debit and credit card skimming schemes
    cost Canadians several hundred millions of dollars each year.

[3]

All four appellants were involved in a business operated through
    Canadian Barcode and Plastic Card Supply Inc.  Canadian Barcode sold devices
    and software used to transfer data from credit or debit cards onto fraudulent
    cards.  The appellants Cattral and Brunet were the co-owners and founders of
    the company.  The appellant Beauchamp was an employee, and the appellant
    Shanghavi was a customer.

[4]

The charges against the four appellants arose out of a police
    investigation into the operations of Canadian Barcode, called Project
    Instrument.

[5]

Project Instrument was initiated in 2002 after devices sold by Canadian
    Barcode were recovered by police in credit and debit card forgery schemes in
    Canada.  The investigation was lengthy.  It involved undercover operations, the
    input of confidential informants, physical surveillance of the targeted
    individuals and, eventually, authorized wiretap interceptions of their
    communications.  The investigation concluded in July 2004.

[6]

At that time, a number of search warrants were executed.  Thousands of
    documents and other items were seized.  During the course of the investigation,
    investigators had amassed many thousands of intercepted communications.

[7]

The appellants and several other (then) co-accused were arrested.

[8]

The Crown alleged that the appellants sold devices and materials through
    Canadian Barcode knowing the devices and materials were intended be used to
    forge credit cards, that they fraudulently possessed credit card data, that
    they forged and conspired to forge credit cards, and that they participated in
    the activities of and committed offences for the benefit of a criminal organization.
[1]
The Crown also alleged that the appellants carried on these activities with a
    common design and purpose of encouraging, facilitating and committing credit
    card fraud.

[9]

The trial was lengthy and complex.  There were a number of pre-trial
    motions, including an unsuccessful
Garofoli
application
[2]
to exclude the wiretap evidence and an unsuccessful challenge to the
    constitutionality of one of the sections of the criminal organization
    provisions in the
Criminal Code.
The trial itself extended over 45
    days with over 500 wiretap intercepts and about 400 exhibits filed.

[10]

At
    the conclusion of trial, the trial judge entered 36 convictions (on a 32-count
    indictment, although there were acquittals on some individual counts).  None of
    the appellants was convicted on fewer than six counts.
[3]

[11]

The
    appellants contest their convictions. Their arguments fall into three
    categories:

a)

all attack the trial
    judges failure to exclude the wiretap evidence on the
Garofoli
application;

b)

Cattral, Brunet and
    Beachamp contest their convictions on the criminal organization charges; and

c)

all seek to overturn
    their convictions on certain counts relating to them individually.

[12]

In
    addition, all appellants contest the sentences imposed on them.

[13]

For
    the reasons that follow, the conviction appeals are dismissed.  The sentence
    appeals of Cattral and Brunet are also dismissed.  Beauchamps sentence appeal
    is allowed in part, and Shanghavis sentence appeal is allowed in accordance
    with these reasons.

FACTUAL BACKGROUND

[14]

Canadian
    Barcode operated openly out of offices in Ottawa, selling hardware, software
    and other supplies associated with magnetic stripe cards used in the credit card
    industry.  Over the years, its principals, Cattral in particular, provided
    assistance to the RCMP and other police forces in relation to fraudulent credit
    card schemes.

[15]

The
    appellants asserted that Canadian Barcode was a legitimate storefront business
    operation engaged in supplying product to people operating legally in the magnetic
    stripe card market.  The Crown contended that Canadian Barcodes operations
    were substantially a front for illicit trade in devices and materials that the
    appellants knew were being used in large scale credit card fraud.

[16]

The
    evidence proved the Crowns contention to be correct.

[17]

Serious
    credit card fraud is a sophisticated type of crime involving a number of inter-related
    participants.  These include: (i) those who manufacture devices used to acquire
    the data on magnetic stripes of credit cards; (ii) the distributors of those
    devices; (iii) those who write software programs and provide technical
    assistance relating to the extraction and deciphering of the data from the
    devices; (iv) the end-users of the devices (usually retail sales workers, or
    others who install the devices on Automatic Teller Machines (ATMs)); (v)
    those who recruit the end-users of the devices; (vi) those who manufacture
    counterfeit cards and encode the cards with the stolen data; (vii) those who
    recruit runners or shoppers to use the fraudulent cards; and, (viii) the
    runners or shoppers themselves.

[18]

The
    evidence showed that the appellants Cattral, Brunet and Beauchamp were in the
    upper echelons of this hierarchy.  They were distributors of the devices, wrote
    software for the devices, and provided technical assistance to the users of the
    devices.  Others involved in the scheme  including the appellant Shanghavi
    fulfilled one or more of the manufacturing, recruiting, counterfeiting,
    encoding and recruiting roles.  The following is a brief description of the devices
    and the parties involved in this case, and the roles they played.

The Devices and Software Programs

[19]

The
    devices sold by Canadian Barcode were designed to be able to copy, read and
    store data found on the magnetic stripe on the back of credit cards. Some of
    the devices could be attached to ATMs in order to capture data from cards
    inserted into those machines.  Others were designed to capture card information
    or data typed into a PIN pad at point of sale terminals in stores.

[20]

The
    data captured by these devices could then be transferred onto a blank card with
    a magnetic stripe.  Once the data was transferred, the person holding the blank
    card would essentially have a duplicate of the information on the original card
     the cards were dressed up to look like legitimate bank cards  and could be
    used to make purchases or to withdraw cash from ATMs.

[21]

A
    detailed description of the devices involved is not necessary.  However, a
    reference to the following, which were sold by Canadian Barcode, may be useful
    for ease of reference.  They are known as the MIR38, the KT100 (and its more
    advanced sibling, the KT104), the data loggers (data loggers #3207 and #3225
    are particularly relevant), and the PMR600.

[22]

The
    principal device was the MIR38.
[4]
It was designed by Specialty Sensor Technologies Inc. (SST) to be installed
    on an ATM so that it would fit over the normal card slot and still allow the credit
    card to pass through it into the ATM.  When this occurred, the cardholders
    financial data would be read and stored by the MIR38, while at the same time
    the ATM would operate normally so that the cardholder would be unaware of the
    theft.

[23]

The
    KT100 and the KT104 were the inner workings of the MIR38, developed with the
    assistance and advice of Cattral and Beauchamp.  The KT104 was an upgraded
    device, improved after Beauchamp provided customer feedback to SST.

[24]

A
    data logger  particularly relevant to Shanghavis charges  is a small
    electronic device that can record and store data keyed into the keyboard or
    keypad of a point of sale terminal and the information on a credit card if it
    is swiped through the point of sale terminal.

[25]

Finally,
    the PMR600  relevant to the charges relating to Beauchamp  is another small
    electronic device that can record and store the data contained on a cards magnetic
    stripe when the card is swiped through the device.  The PMR600, and others in
    the PMR series of devices, preceded the development of the MIR38.  The devices
    were capable of storing the data of over 100 credit cards.

The
Dramatis Personae

[26]

Whatever
    legitimate activities it may have had, Canadian Barcode was a distributor and
    supplier of the devices, software and other related supplies to operatives
    lower in the skimming chain.  These operatives purchased the items and used
    them to commit credit card fraud by performing some or all of the other tasks
    outlined above.

[27]

Kurt
    Gehmlich and Greg Winslow designed, manufactured and sold skimming devices through
    their corporation, SST.  Gehmlich and Winslow were originally charged as
    co-accused with the appellants, but the charges were withdrawn when SST pled
    guilty to a charge of selling devices knowing they were intended for use in
    forging credit cards.  Gehmlich reluctantly testified as a Crown witness
    against the appellants.  He acknowledged that he manufactured and sold skimming
    devices knowing they were sometimes used by fraudsters.

[28]

Canadian
    Barcode was one of SSTs largest customers.  The wiretap intercepts showed that
    Gehmlich and Winslow knew that Canadian Barcodes customers were using SSTs
    skimming devices for fraudulent purposes.

[29]

As
    we have said, Cattral and Brunet were the founders, owners and operators of
    Canadian Barcode.  Beauchamp was an employee.  In the division of labour that
    characterized the structure and operation of Canadian Barcode, each had their
    respective areas of responsibility.

[30]

Cattral
    was the mastermind and the face of the operation to authorities and others, as
    well as the organizations technical expert.  He developed the RenCode software
    program (RenCode) that was a key tool and widely used in the forging of credit
    cards. He also provided technical assistance and advice to customers and suppliers
    and participated in the marketing and sales of devices.  Brunet was responsible
    for the financial management of the organization and kept the financial
    records; she was also involved in the marketing and sales of devices and at
    times provided technical assistance to customers. Beauchamp was dedicated to
    the sale of the devices, but also provided technical assistance to Canadian
    Barcodes customers.

[31]

We
    will refer to Cattral, Brunet and Beauchamp together, from time to time, as the
    Canadian Barcode Group or the Group.

[32]

Canadian
    Barcodes primary customers in the credit card skimming endeavour were Baruk
    Krespine, Gary Persaud and Ravi Shanghavi, although there were others as well.
    Krespine, Persaud and Shanghavi were lower-level operatives who used the
    devices sold to them by Canadian Barcode to acquire data from others credit cards,
    store the data, and transfer the data to counterfeit cards they had (or had
    caused to be) manufactured.  In short, they were the recruiters, the
    counterfeiters and the encoders.  Krespine and Persaud at least were major and
    prolific credit card fraudsters  Krespine in Montreal and Persaud in the
    Toronto area.  Shanghavi was perhaps newer to the intrigue.
[5]

The Business Records at Canadian Barcode

[33]

Canadian
    Barcode used two different databases to keep track of its business records
    the SSS database and the ACT database. Both were in electronic format and
    recorded information relating to sales of the various devices. The ACT database
    contained information about Canadian Barcodes contacts and detailed customer
    interactions. The SSS database contained a record of sales and information
    about Canadian Barcodes inventory. The SSS database entries were made
    beginning in 1999 and continuing to April 2004.

[34]

The
    Crown sought to have these databases, along with other documents seized from
    Canadian Barcodes offices and SST, admitted at trial for the truth of their
    contents. The defence opposed admission of the SSS database. The trial judge
    held the SSS database admissible for the truth of its contents against Cattral
    and Brunet  because it was in their possession and control  but not against
    Beauchamp or Shanghavi, as neither possessed the database.

What the Evidence Showed

[35]

The wiretap intercepts demonstrate frequent contacts among Krespine,
    Persaud and Shanghavi, and as between Cattral, Brunet and Beauchamp and those
    individuals.  A large proportion of the over 500 intercepts that were made
    exhibits at trial contain conversations, involving various combinations of them
    all, about credit card fraud.

[36]

The
    evidence establishes that Cattral, Brunet and Beauchamp were aware that
    Krespine, Persaud and Shanghavi were engaged in illegal activities.  Not only
    were they aware of these activities, but Cattral, Brunet and Beauchamp actively
    took steps to assist their customers in these illicit activities beyond the
    sale of devices.  They did so in a number of ways:

a)

They provided
    technical support and expertise on ways to commit credit card crime.  For
    example, Cattral assisted Shanghavi by providing an updated version of software
    and other advice to assist in solving a problem relating to the dumping of
    data from a data logger.  Beauchamp similarly provided Shanghavi with technical
    assistance. Cattral helped Persaud to get a time-stamped data logger to work.
    These data loggers allow fraudsters to correlate information skimmed from
    credit cards with corresponding images from adjacent pin-hole cameras that
    capture a users PIN number.  Brunet advised Shanghavi about a problem he was
    having printing cards from his specialized card printer.

b)

They used aliases and
    nicknames in their conversations and in Canadian Barcodes sales records to
    conceal the names of their customers (Persaud was Steve, Sean Brown or
    simply G; Shanghavi was Shylok; Krespine was Daniel, Wheeler or Hill).

c)

They provided
    introductions and promoted continuing connections among the criminal actors
    involved in the scheme.  Cattral and Brunet introduced Shanghavi to Ghemlich
    and Winslow at SST; Cattral organized a meeting at the Canadian Barcode
    premises where he and Brunet introduced Shanghavi and Persaud to Krespine, in
    part at least to facilitate further contact and a working relationship among the
    three.  The wiretap intercepts reveal regular communications among all these
    individuals, passing along contact information and details and alerting each
    other to potential problems with their products and even to potential incidents
    of police surveillance.

d)

They offered
    preferential pricing and even extended credit to known fraudsters, including Shanghavi
    and Persaud, and avoided identifying their customers in transaction records by
    completing their sales in cash.

e)

Cattral, Brunet,
    Beauchamp, Krespine, Persaud and Shanghavi put additional measures in place to
    conceal and protect their illegal activities.  They shared intelligence
    relating to the identities of suspected confidential informants as well as
    information about police surveillance and counter-surveillance techniques and
    bank anti-fraud countermeasures.  Cattral warned Shanghavi that one of his
    devices (data logger #3225, sold to him by Canadian Barcode) had been seized by
    police (information he had learned from the RCMP) and gave advice on how to
    avoid detection.  In various combinations, Cattral, Brunet, Beauchamp,
    Krespine, Persaud and Shanghavi also worked together to determine who was
    responsible for the theft of a laptop computer and a card printer stolen from
    Krespine; assisted an American customer of Canadian Barcode to retrieve a
    parcel containing an MIR38 device that he believed was being watched by
    American authorities; and may have arranged for a lawyer to provide counsel on
    the arrest to two operatives in the scheme.

f)

Significantly,
    just prior to the arrests, Cattral was inadvertently tipped off by an Ottawa
    journalist about a planned police raid the following day.  He spoke to Brunet
    about it and, with Cattrals agreement, she immediately contacted Shanghavi and
    Persaud to warn them.  She told Persaud that the Canadian Barcode Group planned
    to remove all stock by the next day and shut everything down. She also told
    Shanghavi in an MSN chat that she was giving him a warning about someone
    getting busted the next day and that they were cleaning out this place
    tonight.

g)

The police became
    aware of Brunets calls.  Two hours after her chat with Shanghavi, a police
    tactical unit raided the Canadian Barcode premises and arrested Cattral, Brunet
    and Beauchamp.  Because of Brunets tip, Persaud  who took immediate flight
    was able to avoid arrest for another six months.

Concessions at Trial

[37]

At
    trial, Brunet consented to a finding of guilt with respect to Count 7 (the sale
    of a data logger and plastic cards to Persaud) and Count 12 (the sale of the
    MIR38 portable magnetic stripe reader).  The trial judge said that Brunet had also
    consented to a finding of guilt with respect to Count 15 (concerning the sale
    of magnetic stripe readers), but she disputes this.

[38]

Beauchamp
    invited findings of guilt (but did not formally plead guilty) on Counts 12 and
    15.  Both counts related to the sale of magnetic stripe readers knowing they
    were intended for use in forging credit cards, contrary to s. 342.01(1)(b) of
    the
Criminal Code
.

Project Instrument

[39]

Project
    Instrument began in December 2002.

[40]

For
    some time prior to that, Det. Andrew Buchan of the Ottawa Police Service had
    been collecting materials and looking at the activities of Cattral and Canadian
    Barcode.  In September 2002, he obtained and executed a general warrant seeking
    access to Canadian Barcodes bank records. He believed these records would: (i)
    provide police with information identifying Canadian Barcode customers who
    might be engaging in fraudulent credit card use; and (ii) provide them with
    more information about Canadian Barcode, Cattral and Brunet.

[41]

The
    records seized proved to be less useful than expected.  Project Instrument
    drawing in a wider range of police officers  was set up as the next stage in
    the investigation.  It involved further investigations culminating in the
    decision to try to obtain an authorization for wiretap interceptions.  By that
    time, Det. Sgt. Marc Bedard of the Ontario Provincial Police had come on board.

[42]

During
    the course of Project Instrument, and prior to seeking the wiretap
    authorization, the investigators did the following:

a)

They obtained
    information from at least five confidential informants relating to the
    interactions among Canadian Barcode, the Canadian Barcode Group, Shanghavi, Persaud
    and his parents and other credit card skimming fraudsters.

b)

They obtained various
    occurrence and arrest reports regarding the targets of the investigation.

c)

They conducted
    background checks on corporate clients of Canadian Barcode.

d)

They searched the
    premises of a former employee of Canadian Barcode, Darcy Petersen, where they
    seized a wide array of equipment designed for the commission of credit card
    offences.

e)

They conducted
    surveillance on various targets.

f)

They
    obtained a preliminary accounting report based on the banking records seized
    earlier.

g)

They attempted two
    undercover approaches to Cattral at a night club, but did not otherwise pursue that
    type of option because their information was that Cattral was very cautious
    about who he dealt with in such situations.

[43]

As
    a result of these efforts, Project Instrument had yielded at least the
    following information that the police believed to be true, according to the
    material filed in support of the application to obtain the wiretap
    authorization:

a)

Canadian Barcode, the
    Canadian Barcode Group, Shanghavi, Persaud and members of Persauds family,
    together with others, were all engaged in activities involving the purchase,
    sale and use of fraudulent credit card skimming devices and related materials (including
    the RenCode software program).

b)

Cattral, Brunet,
    Beauchamp and Persuad all had lengthy histories of being implicated in skimming
    offences relating to the use of these products (Cattral was said to have
    described himself as one of the top ten fraudsters in Ottawa, and had been
    implicated by police in at least five separate skimming offences between 1995
    and 1999; Brunet was implicated in three sets of offences between 1997 and
    1999; Beauchamp had a history of three charges for using forged credit cards;
    and Persaud had what the Crown accurately called a relentless pattern of
    criminal offences in that milieu).

c)

Cattral, Brunet,
    Beauchamp and Persaud were all closely associated with each other as well as with
    other credit card skimming fraudsters.

d)

The devices and
    equipment sold by Canadian Barcode were both capable of being used to commit credit
    card fraud and were regularly being used for that purpose in Canada, the United
    States and overseas.

e)

Cattral and others at
    Canadian Barcode knew, as a result of repeated forewarnings from law
    enforcement agencies, that their devices and equipment were being used for
    those purposes.

f)

The
    affairs of Canadian Barcode were structured in a way that lent itself to the
    commission of credit card skimming fraud (many large transactions were
    conducted on a cash basis or using Western Union, and financial records were
    unrevealing).

The Section 185 Wiretap Application

[44]

On
    March 30, 2004  with the background of these investigative results  the
    police sought authorization under Part VI of the
Criminal Code
to
    intercept the private communications of the targeted group  Cattral, Brunet,
    Beauchamp, Persaud and his parents, Petersen and several other known targets.
     Shanghavi was not included among either the known targets or other known
    persons categories.  Authorization was also sought for a basket clause
    permitting the interception of private communications of persons whose
    identities were then unknown, provided they originated communications with a
    known target or other known person, or were found at one of 26 different
    locations (residences, vehicles, a cellular phone and a pager of the 7
    targets and 10 known persons).

[45]

The
    offences specified in the application were: fraud; forgery; theft, forgery,
    possession, use and/or trafficking in credit cards or forged credit cards;
    possession of property and proceeds of property obtained by crime; and
    conspiracy, attempt, counselling, procuring and inciting the commission of any
    listed offence.

[46]

Det.
    Sgt. Bedard swore the supportive affidavit required by s. 185(1) of the
Criminal
    Code
in support of the application for authorization. He provided an
    overview of Project Instrument, identified Cattral and Brunet as active
    participants in credit card frauds since the mid-90s and described the nature
    of their activities.  He noted their prior arrests for various offences,
    including the use of forged credit cards and possession of fraudulent cards.

[47]

Det.
    Sgt. Bedard described the purpose of the investigation in these terms:

This investigation will venture to identify the owners and
    employees of Canadian Barcode and Plastic Card Supply, as knowingly supplying
    the criminal element including the PERSAUD family and its associates with the goods,
    specialized criminal knowledge and experience in accomplishing payment card
    fraud.

[48]

The
    specific investigative goals of the operation were said to be the following:

a)

to identify the owners
    and employees of Canadian Barcode who were knowingly facilitating credit card
    skimming offences;

b)

to allow investigators
    to gather evidence that would reveal the roles and the degree of involvement of
    the conspirators involved in the crimes;

c)

to determine the
    magnitude of the operation and its resulting proceeds; and

d)

to identify active and
    currently unknown forged credit card manufacturers, traffickers, and users.

[49]

The
    affidavit was based principally on information and belief since Det. Sgt.
    Bedard was not directly involved in the investigation.  Among the sources of
    information on which he relied to satisfy the requirements of s. 186(1) of the
Criminal
    Code
were:

a)

the Director of Risk
    and Security for a major credit card company;

b)

five confidential
    informants, all involved in credit card fraud;

c)

police occurrence
    reports; and

d)

physical surveillance
    of the principals.

[50]

Det.
    Sgt. Bedard relied on information provided by the Director of Risk and Security
    to explain the credit card manufacturing process and the steps followed by
    fraudsters to produce forged credit cards, including how they surreptitiously
    obtained essential information from legitimate cards, purchased blank cards
    with a magnetic strip, and printed and embossed the essential features of a
    legitimate card on a forged card.

[51]

From
    information provided by confidential informants, themselves involved in credit
    card fraud, Det. Sgt. Bedard described the nature and extent of the involvement
    of Cattral and Brunet in credit card fraud, including but not limited to the
    sale and supply of devices necessary to commit the offences and their knowledge
    of their use for fraudulent purposes.

[52]

From
    information obtained from police occurrence reports, Det. Sgt. Bedard described
    investigations, arrests and seizures that had occurred in the decade
    immediately prior to the authorization being sought.  These reports related to
    the activities of the known targets in Canada and elsewhere.

[53]

Det.
    Sgt. Bedard included a summary of the bases upon which he contended that the
    probable cause requirement of s. 186(1)(a) of the
Criminal Code
had
    been met, then explained why several alternative investigative procedures had
    been tried and failed or were unlikely to succeed in achieving the
    investigative goals being pursued.  The alternatives included:

a)

informants;

b)

undercover officers or
    agents;

c)

Crimestoppers tips;

d)

search warrants;

e)

physical surveillance;

f)

tracking
    warrants;

g)

interviews;

h)

forensic analysis; and

i)

lineups.

The Section 186 Wiretap Authorization

[54]

The
    authorization was granted by a judge of the Superior Court of Justice on March 31,
    2004 and later renewed by another judge of the same court. The authorization
    recited satisfaction of the conditions precedent of probable cause and
    investigative necessity on the basis of Det. Sgt. Bedards affidavit.  The
    requirement of investigative necessity referred to the above-mentioned
    investigative procedures as having been tried and failed or as unlikely to
    succeed.

[55]

The
    authorization permitted interceptions in relation to the various credit card
    related offences listed in the application.  However, it did not permit
    interceptions in relation to the offence of dealing in instruments or things
    for copying credit card data or forging or falsifying credit cards under s.
    342.01(1) of the
Criminal Code
. At
    the time the authorization was granted or renewed, s. 342.01(1)
was
    not an offence as defined in s. 183 of the
Criminal Code
.

[56]

Over
    the course of a four-month period, the police intercepted many thousands of
    private telephone and Internet-based chats.  As indicated earlier, over 500
    of the intercepts were made exhibits at trial.

The
Garofoli
Application

[57]

The
    trial judge permitted trial counsel for the appellants to cross-examine the
    affiant on several issues related to the probable cause and investigative
    necessity requirements, including whether Det. Sgt. Bedard had misled the
    authorizing judge by seeking an authorization for various listed offences when
    the true purpose of the investigation was to gather evidence about an offence
    (s. 342.01(1) of the
Criminal Code
) for which an authorization could
    not then have been granted.  The trial judge also permitted cross-examination
    on the issue whether Shanghavi was a known person who should have been
    included in the authorization either as a known target or as an other known
    person.

[58]

In
    cross-examination, Det. Sgt. Bedard explained that he first became involved in
    Project Instrument in May 2003, sometime after the investigation had begun.  He
    met with investigators and reviewed the investigative file to assess whether an
    application should be made for an authorization to intercept private
    communications.  He was not involved in the ongoing investigation, only in an
    assessment whether a Part VI authorization application could or should proceed.

[59]

Det.
    Sgt. Bedard testified that he began drafting the supportive affidavit around
    May 20, 2003.  He explained that his final assessment about whether to proceed
    with the application was not made until the affidavit had been completed. He
    was well aware that an authorization could not be sought, much less granted,
    for an offence under s. 342.01(1) of the
Criminal Code
.

[60]

Det.
    Sgt. Bedard acknowledged that much of the information provided by confidential
    informants and police occurrence reports related to activities involving the
    appellants over several years prior to 2003.  He testified that despite the
    stale nature of some of the information, it was also clear that similar
    activities continued through the operation of Canadian Barcode.

[61]

Ultimately,
    the trial judge was satisfied that there was evidence before the issuing judge
    and the renewing judge on which they
could
have found the requirements
    of s. 186(1) met, and thus
could
have issued and renewed the authorization,
    despite some errors and omissions in the affidavit.

[62]

The
    trial judge also concluded that Shanghavi should have been named as a known
    person in the authorization.  He later held that, due to the failure to name
    Shanghavi, the interception of Shanghavis private communications offended s. 8
    of the
Canadian Charter of Rights and Freedoms
.  However, he
admitted them as evidence
    under s. 24(2) of the
Charter
.

THE GROUNDS OF APPEAL

I.

The Conviction Appeals

(1)

The Wiretap Authorization Grounds

[63]

At
    trial, over the objections of trial counsel for the appellants, Crown counsel
    tendered, and the trial judge admitted, several private communications
    intercepted under the authorization.  The admissibility of this evidence is the
    focal point of two grounds of appeal.

[64]

The
    first two grounds, common to all appellants, is that the authorization was improvidently
    granted, and that the trial judge erred in dismissing the
Garofoli
application.  The appellants say that the supportive affidavit, as amplified on
    review, failed to demonstrate either the probable cause or investigative
    necessity requirements that are conditions precedent to the granting of an
    authorization under s. 186(1) of the
Criminal Code
.

[65]

The
    third ground, unique to Shanghavi, is that, having decided that the
    interception of Shanghavis private communications offended s. 8 of the
Charter
,
    the trial judge erred in failing to exclude the intercepted private
    communications involving Shanghavi under s. 24(2) of the
Charter
.

(2)

The Criminal Organization Ground

[66]

Cattral,
    Brunet and Beauchamp seek to set aside their convictions for having
    participated in the activities of a criminal organization (s. 467.11(1)
    stayed on
Kienapple
grounds)
[6]
and committing an offence for the benefit of a criminal organization (s.
    467.12(1)).

[67]

They
    contend that the trial judge misinterpreted the criminal organization
    provisions in the
Criminal Code
by:

a)

failing to recognize
    that the Canadian Barcode Group did not have a sufficient level of continuity
    and cohesion to meet the organizational prerequisite for a criminal
    organization as defined in s. 467.1; and

b)

failing to require the
    Crown to lead evidence proving, on the basis of a quantitative comparison
    between the legitimate and illegal components of their business, that the
    illegal components constituted one of the main purposes or main activities of
    the Group.

[68]

In
    addition, Cattral, Brunet and Beauchamp argue that the trial judge compounded
    the foregoing errors by reversing the onus of proof and placing the burden on
    them to adduce the type of quantitative evidence referred to above.

(3)

The Individual Grounds of Appeal

Shanghavi and Cattral

[69]

Shanghavi
    and Cattral appeal their convictions on a number of counts relating to the
    fraudulent possession of credit card data, contrary to s. 342(3) of the
Criminal
    Code
.  They argue that their possession of the data could not have
    enabled use of the data because the cards from which the data had been
    obtained were unusable at the time.

Brunet

[70]

Brunet
    appeals her convictions on Count 6 (conspiracy) and Count 15 (selling devices
    knowing they were intended for use in forging credit cards).

[71]

With
    respect to the conspiracy charge, she argues that the trial judge erred generally
    in finding there was an agreement between her and Persaud to commit the offence
    of forging credit cards and, in particular, that he erred by inferring the
    existence of such an agreement from his findings of other common designs for
    evidentiary purposes.

[72]

With
    respect to the charge of selling devices, Brunet submits that the trial judge
    erred in recording that she had conceded a finding of guilt.  As a result, she
    says she was denied a hearing on the merits of the charge because the trial
    judge did not deal with any of the submissions relating to it.

Beauchamp

[73]

Beauchamp
    appeals from his conviction on Count 9 (sale of a device  the PMR600  knowing
    that it was intended for use in forging credit cards).

[74]

He
    argues that a conviction could not be entered on that count because, although
    the device was sold to an undercover officer posing as a criminal looking to
    purchase the device to commit fraud, the undercover officer clearly never
    intended to do any such thing.

Shanghavi

[75]

In
    addition to the grounds relating to him, set out above, Shanghavi appeals from
    his convictions on Counts 19 and 21.  Both counts alleged that he was in
    possession of devices (data loggers #3207 and #3225) knowing they were intended
    for use in forging credit cards.

[76]

The
    main complaint with respect to the conviction on Count 21 is that the trial
    judge improperly inferred from Shanghavis silence during communications with
    Cattral that he admitted to possessing the data logger. On both counts, he
    argues the trial judge relied on inadmissible evidence and erred in his
    approach to the co-conspirators exception to the rule against hearsay.

II.

The Sentence Appeals

[77]

The
    appellants received the following sentences:

a)

Cattral  a total of seven
    years imprisonment (four years concurrent on most of the non-criminal
    organization convictions, six months concurrent on the obstruction of justice
    conviction, and three years consecutive for the criminal organization
    conviction, half of the latter to be served before parole), plus a $40,000 fine
    in lieu of forfeiture.

b)

Brunet  a total of four
    years imprisonment (two years concurrent on most of the non-criminal
    organization convictions, one month concurrent on the breach of recognizance
    conviction, and two years consecutive for the criminal organization conviction,
    half of the latter to be served before parole), plus a fine of $40,000 in lieu
    of forfeiture.

c)

Beauchamp  a total of
    two years and nine months imprisonment (the latter reflecting the consecutive
    sentence imposed for the criminal organization conviction, half to be served
    before parole).

d)

Shanghavi  15 months
    imprisonment, plus three years probation.

[78]

They
    all seek leave to appeal and, if leave is granted, appeal their sentences.

ANALYSIS  THE CONVICTION APPEALS

I.

THE WIRETAP AUTHORIZATION GROUNDS

A.

THE GOVERNING
    PRINCIPLES

[79]

Before
    considering the specific allegations advanced by the appellants, a brief
    reminder about some aspects of the procedure followed on applications for
    authorizations and the scope of authorization review is warranted.

(1)

The Authorization Process

[80]

Section
    186(1) of the
Criminal Code
reads as follows:

186. (1) An authorization under this section may be given if
    the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the
    administration of justice to do so; and

(b) that other investigative procedures have been tried and
    have failed, other investigative procedures are unlikely to succeed or the
    urgency of the matter is such that it would be impractical to carry out the
    investigation of the offence using only other investigative procedures.

[81]

Based
    on this provision, authorizations to intercept private communications require
    satisfaction of two conditions precedent:

a)

probable cause (s.
    186(1)(a)); and

b)

investigative
    necessity (s. 186(1)(b)).

Both have roots in the supportive affidavit required
    by s. 185(1).  Indeed, it is this affidavit, and only this affidavit, that
    provides the evidentiary support that underpins the conditions precedent
    imposed by s. 186(1).  The affidavit may be based on information and belief.  Its
    contents are not confined to the firsthand knowledge of the affiant.

[82]

An
    authorization does not issue as of right upon satisfaction of the conditions
    precedent in s. 186(1).  The opening words of the subsection  An
    authorization under this section
may
be given  are permissive, not mandatory.

[83]

Applications
    for authorization are made
ex parte
by a specially designated agent.  The
ex parte
nature of the application imposes an obligation on the
    affiant to provide full and frank disclosure of facts material to the granting
    of the authorization:
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
    at para. 46.  Ideally the affidavit should be clear and concise and not attempt
    (by errors, strategic omissions or the use of boilerplate language) to confuse
    or deceive its reader, or obscure or mischaracterize the true state of affairs:
Araujo
, at paras. 46-47.  The affidavit need not describe in detail
    every step taken in the underlying investigation:
Araujo
, at para. 46.

(2)

The
Garofoli
Review

[84]

A
Garofoli
hearing is held before the trial judge to determine
    whether the authorization complies with s. 8 of the
Charter
:
Garofoli
,
    at pp. 1451-1452;
R. v. Pires; R. v. Lising
, 2005 SCC 66, [2005] 3
    S.C.R. 343, at para. 6.  The reviewing judge must determine whether the
    interceptions constituted an unreasonable search or seizure.  To make this
    determination, the reviewing judge must decide whether the statutory conditions
    precedent to the issuance of the authorization have been met:
Pires;

Lising
,
    at para. 8.

[85]

The
Garofoli
hearing is based on the documents relating to the
    authorization, including the supportive affidavit, any additional evidence that
    may be received on the hearing and the submissions of counsel:
Pires; Lising
,
    at para. 8.  The review begins from a presumption that the authorization is
    valid:
Pires; Lising
, at para. 30;
R. v. Ebanks
, 2009 ONCA
    851, 249 C.C.C. (3d) 29, at para. 21, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 84;
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at
    para. 83.  The review involves a contextual analysis, not a piecemeal approach
    to individual items of evidence shorn of their context:
Sadikov
, at
    para. 87.

[86]

The
    reviewing judge does not stand in the same place or perform the same function as
    the authorizing judge.  The reviewing judge does not conduct a re-hearing or
    substitute his or her view for that of the authorizing judge.  The issue is
not
whether the supportive affidavit in fact satisfies the probable cause
    requirement in s. 186(1)(a) of the
Criminal Code
.

[87]

The
    reviewing judge considers the record that was before the authorizing judge,
    often redacted, as here, so as not to disclose the identity of confidential
    informants, and as amplified on the review.  The task for the reviewing judge,
    as framed by
Garofoli
and subsequent authorities, is to determine
    whether on the supportive affidavit, as amplified by evidence adduced on the
    review, there was sufficient reliable evidence that might reasonably be
    believed on the basis of which the authorizing judge
could
have
    concluded that the probable cause requirement had been met:
Garofoli
,
    at p. 1452;
Araujo
, at paras. 51 and 54;
Ebanks
, at para. 20;
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[88]

On
    a
Garofoli
hearing, even if it is established that information
    contained in the supportive affidavit is inaccurate or omits material facts, it
    does not follow that the statutory requirements have not been met:
Garofoli
,
    at p. 1452;
Araujo
, at para. 54;
Pires; Lising
, at para. 30.  The
    merits of any of the Crowns allegations about the offence are of no moment to
    the judge presiding on the
Garofoli
hearing.  The truth of the
    allegations asserted in the affidavit about the essential elements of the
    offence is for the trier of fact to determine based on the evidence properly
    received at trial:
Pires; Lising
, at para. 30.

[89]

On
    appeal, we owe deference to the findings of fact made by the reviewing judge in
    his or her assessment of the record, as amplified on review, as well as to his
    or her disposition of the s. 8
Charter
challenge.  Absent an error of
    law, a misapprehension of material evidence or a failure to consider relevant
    evidence, we should decline to interfere:
Sadikov
, at para. 89;
Ebanks
,
    at para. 22;
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at
    para. 18, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 168.

(3)

The Probable Cause Requirement: s. 186(1)(a)

[90]

The
    first requirement imposed by s. 186(1)(a) of the
Criminal Code
as a
    condition precedent to the authority to grant an authorization is that the
    order must be in the best interests of the administration of justice.  In the
    search and seizure jurisprudence that has developed since the proclamation of
    the
Charter
, this requirement is described as that of probable cause.

[91]

Section
    186(1)(a) coincides with the minimum constitutional requirement mandated by
Hunter
    v. Southam Inc.
, [1984] 2 S.C.R. 145.  The statutory language  it would
    be in the best interests of the administration of justice to [grant an
    authorization]  is the equivalent of reasonable and probable grounds to
    believe that an offence has been, or is being, committed and that the
    authorization sought will afford evidence of that offence:
R. v. Duarte
,
    [1990] 1 S.C.R. 30, at p. 45;
Garofoli
, at p. 1444;
R. v. Mahal
,
    2012 ONCA 673, 292 C.C.C. (3d) 252, at paras. 40 and 68, leave to appeal to
    S.C.C. refused, [2012] S.C.C.A. No. 496.

[92]

Thus,
    an essential constituent of the probable cause requirement is a reasonably
    grounded belief that a listed offence has been or is being committed. This does
    not require establishing a
prima facie
case, much less proving beyond
    a reasonable doubt, or even on a balance of probabilities, that an offence
has
been committed:
R. v. Wong
, 2011 BCCA 13, 268 C.C.C. (3d) 37, at para.
    20, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 90. That is for the
    trier of fact to decide on relevant, material and admissible evidence adduced
    at trial.

[93]

The
    interception of private communications is an investigative technique or tool to
    record words spoken by various individuals.  What the speakers say may afford
    evidence about the commission of an offence, or an individuals participation
    in it.  The words sought for capture do not exist when the authorization is granted.
     They may never exist or disclose anything of relevance to any offence under
    investigation.  By nature, the subject-matter sought  communications about an
    offence  is speculative.  The probable cause analysis must take cognizance of
    this reality.

(4)

The Investigative Necessity Requirement: s. 186(1)(b)

[94]

Section
    186(1)(b) of the
Criminal Code
creates the investigative necessity
    requirement and establishes its place as a condition precedent to the authority
    to grant an authorization to intercept private communications.  By its terms,
    the investigative necessity requirement may be satisfied in
any
one or
    more of three ways:

a)

trial and failure of
    other investigative procedures;

b)

unlikelihood of
    success of other investigative procedures; or

c)

urgency and
    corresponding impracticality of other investigative procedures.

[95]

Where
    the case for investigative necessity is advanced on the basis of the
    unlikelihood of success of other investigative procedures, an applicant must
    demonstrate that, practically speaking, there is no other reasonable
    alternative method of investigation in the circumstances of the particular
    criminal inquiry:
Araujo
, at para. 29;
Mahal
, at para. 41.

[96]

This
    interpretation of the second branch of the investigative necessity requirement
    is based on the text of the provision, read with simultaneous awareness of two
    potentially competing considerations:

a)

the principle of
    statutory interpretation that requires reading the words of a statute in their
    entire context, and in their grammatical and ordinary sense, in harmony with
    the scheme and object of the Act and the intention of Parliament; and

b)

an awareness of the
    competing values of enabling criminal investigations and protecting privacy
    rights.

See
Araujo
, at para. 26.

[97]

The
    language of the second branch of the investigative necessity requirement must
    not be read in a vacuum.  Rather, it must be read together with the other
    branches.  The term unlikely is not to be read weakly, but in its context in
    light of the competing values at work and how any particular investigation
    meshes with these values:
Araujo
, at para. 28.  The language is to be read
    in a common sense way taking into account not only the nature, but also the
    purpose, of the proposed investigation:
Araujo
, at para. 29.

[98]

As
    the second and third branches of the investigative necessity requirement
    demonstrate, authorizations may issue even where other investigative techniques
    or procedures have not been pursued.  The unlikelihood of success of other
    investigative procedures may arise because:

a)

the other procedures
    would be unlikely to reveal key information about the participants or the
    nature and extent of their involvement;

b)

the other procedures
    may be ineffective against the targets because of the nature of their
    organization, the closeness of their association or the nature of their
    offences; or

c)

counter-surveillance
    methods used by the targets may make certain techniques unlikely to succeed.

See
Araujo
, at paras. 33 and 41.

[99]

The investigative objective informs the analysis of investigative
    necessity:
Araujo
, at para.
43;
R. v. Lajeunesse
(2006),
    208 O.A.C. 385, at para. 17;
R. v. Schreinert
(2002), 165 C.C.C. (3d)
    295 (Ont. C.A.), at para. 39.

[100]

The
    investigative necessity requirement relates to the investigation as a whole,
    not to individual targets.  The supportive affidavit need not demonstrate
    investigative necessity on an individual target basis:
R. v. Tahirkheli
(1998),
    130 C.C.C. (3d) 19 (Ont. C.A.), at para. 4;
R. v. Wasfi
, 2006 BCCA 55,
    206 C.C.C. (3d) 203, at paras. 34-35;
R. v. Pham
, 2002 BCCA 247, 165
    C.C.C. (3d) 97, at paras. 85-86; and
Mahal
, at para. 42.

[101]

That police
    investigators anticipate at an early stage of an investigation that they will
    need to apply for an authorization to intercept private communications does not
    mean they cannot invoke the second branch of investigative necessity when they
    seek an authorization:
Wasfi
, at para. 49.  Nor are investigators
    required to try every alternative investigative technique or procedure:
Araujo
,
    at para. 34.

[102]

Lastly, the
    investigative necessity requirement may well anticipate the vicissitudes of
    proof in a criminal trial.  The requirement is not incompatible with the use of
    authorized interceptions to confirm the evidence of a tainted witness or to add
    strength to the prosecutions proof:
R. v. Rosebush
, 1992 ABCA 293, 77
    C.C.C. (3d) 241, at p. 248, leave to appeal to S.C.C. refused, [1992] S.C.C.A.
    No. 509.

(5)

The Obligation to Identify Known Persons

[103]

Section
    185(1)(e) requires the affiant to include:

[T]he names, addresses and occupations, if known, of all
    persons, the interception of whose private communications there are reasonable
    grounds to believe may assist the investigation of the offence.

Under s. 186(4)(c), the authorization must:

State the identity of the persons, if known, whose private
    communications are to be intercepted.

[104]

The
Criminal
    Code
distinguishes between known and unknown persons in ss. 185(1)(e)
    and 186(4)(c).  The same test  that of may assist  applies to both.  In
    other words, there are two categories of persons who may be the object of
    interceptions: knowns and unknowns.  The categories are mutually
    exclusive.  There are not two categories of known persons.

[105]

The threshold
    for naming a person in an affidavit and authorization is not onerous.  Reasonable
    grounds to believe that a person is involved in an offence under investigation are
    not required.  Nor is it essential that there are reasonable grounds to believe
    that the interception of a persons private communications will afford evidence
    of a listed offence.  Investigators must know a persons identity and have
    reasonable grounds to believe that the interception of that persons private
    communications may assist in the investigation of an offence to trigger the
    identification or known person requirement:
R. v. Chesson
, [1988] 2
    S.C.R. 148, at p. 164;
Mahal
, at paras. 70-73.

B.

DISCUSSION

(1)

Probable Cause

[106]

The appellants
    say the trial judge erred in failing to consider whether the affidavit, as
    amplified on review, could establish a reasonably grounded belief that the
    listed offences were being committed on an ongoing basis.  The appellants
    submit that the offences being investigated were those of s. 342.01(1) of the
Criminal
    Code
for which an authorization was not available at the time it was
    granted.  The relevant materials failed to support any current connection
    between the appellants and those who committed the listed offences as
    principals.

[107]

The appellants
    contend that, at best, the evidence disclosed that they operated a legitimate
    business that sold devices that
could
be used, by those who were
    minded to do so, for illegal purposes.  Indeed, some of their devices had been
    used by others for such illegal purposes.  But, the appellants say that no
    current information linked them, by passing on the required expertise, to the
    crimes of others.  In other words, merely selling legal devices that could then
    be used for illegal activity was not sufficient to establish the grounds of an
    offence.  The trial judge, on the
Garofoli
review, failed to direct
    his mind to whether the necessary nexus had been established and thus erred in
    holding that the evidence could sustain a finding of probable cause.

[108]

We disagree.

[109]

There is ample
    evidence in the affidavit, as amplified on review, to support a reasonably
    grounded belief by the reviewing judge that the authorizing judge could have
    concluded that the known persons listed in the authorization were conspiring
    to commit credit card skimming offences (or in other words, that the probable
    cause requirement had been met in connection with one or more of the listed
    offences).

[110]

The targets all
    had significant criminal histories for credit card skimming fraud.  Cattral,
    Brunet and other Canadian Barcode staff were closely associated with a career
    credit card fraudster, Persaud, his parents and other credit card skimming
    fraudsters.  The evidence disclosed that devices and equipment sold by Canadian
    Barcode were at once capable of use in credit card fraud and, to the knowledge
    of the appellants, were regularly used for that purpose.  The devices and
    equipment were specifically designed to appeal to fraudsters and to facilitate
    credit card fraud.  Indeed, the structure of Canadian Barcodes business  cash
    only transactions without invoices  facilitated the commission of credit card
    fraud.

[111]

Finally, contrary
    to the appellants submissions, the conduct alleged was not dated in the
    sense that there was no evidence that the offences were continuing when the authorization
    was sought.

[112]

Canadian Barcode,
    the hub of the conspiracy, continued to operate and make available on an
    ongoing basis the devices, equipment and expertise essential to the commission
    of the offences.  Confidential sources confirmed the continuing criminal
    activities of the principals and an anonymous tip, less than two weeks old,
    confirmed Cattrals recruitment of shoppers to purchase things with fake credit
    cards.

[113]

However, even
    without this evidence, it would have been open to the authorizing judge to
    infer current criminality from past criminality in the circumstances disclosed
    by the evidence in the affidavit.  In considering the capacity of the
    evidentiary predicate to ground a finding of probable cause, it is important to
    keep in mind the investigative objective and the nature of the alleged
    criminality involved.  Ongoing criminal enterprises do not come into existence,
    nor do they disappear overnight. Information that seems dated at first blush
    can retain its relevance.

[114]

This probable
    cause ground of appeal fails.

(2)

Investigative Necessity

[115]

The appellants
    contend that the resort to interception of private communications was
    premature. They submit that the reviewing judge erred in concluding there was
    any basis in the amplified record on which the authorizing judge could have found
    that the investigative necessity requirement had been established.

[116]

Again, we
    disagree.

[117]

The appellants
    advance three broad errors in the trial judges consideration of the unlikely
    to succeed branch of investigative necessity. First, the trial judge
    effectively (and erroneously) held that, if other investigative means did not
    meet
all
the investigative goals established by the investigators,
    then those means were unlikely to succeed and investigative necessity was
    established.  Second, even if the alternative investigative means needed to
    meet all the investigative goals, this requirement was met. Other investigative
    means, such as undercover approaches to Cattral, could have met the overall
    investigative goals.  Third, the trial judge erroneously decided that other
    investigative means were unlikely to succeed in the absence of any evidence
    that those alternatives had even been tried.  Accordingly, the resort to
    interception of private communications was premature and failed to meet the
    standard of investigative necessity set by s. 186(1)(b).

[118]

We reject these
    arguments.  It is essential not to lose sight of the substance of the
    investigative necessity requirement.  It may be satisfied in any one of three
    ways.  It is not a technique of last resort, as seems at least implicit in the
    appellants submissions, but one of practical necessity in light of the
    investigative objectives.  The police do not need to exhaust every
    investigative procedure that defence counsel submits was available to them.
    Were it so, no need would arise for the latter two branches of investigative
    necessity in s. 186(1)(b) of the
Criminal Code
.

[119]

We also regard
    as untenable the appellants related argument that investigative necessity
    cannot be established where the use of other investigative techniques or
    procedures would likely succeed in establishing the culpability of one of the
    targets of investigation.  Investigative necessity is not target-specific any
    more than the legal standard of proof applies to individual items of evidence
    adduced in a criminal trial.  Investigative necessity relates to the
    investigation as a whole.  It is no answer to a finding that investigative
    necessity has been established on the investigation as a whole to say that some
    other investigative procedure short of the interception of private
    communications would have done the job for one of the known objects of
    interception.

[120]

The appellants also
    submit that, although the investigative goals are relevant to the assessment
    whether the investigative necessity requirement has been met, these goals
    cannot be molded or manipulated so that the interception of private
    communications itself becomes an investigative necessity.  According to the
    appellants, by permitting such an approach, the reviewing judge effectively
    allowed law enforcement to circumvent the investigative necessity requirement.

[121]

Again, we reject
    this submission.  The nature of the activity under investigation is a crucial
    factor in any analysis whether investigative necessity has been established.  Pre-concerted
    and ongoing crimes, such as those at issue in this case, pose a significant
    threat to society and a constant challenge to investigators.  Such activity is
    often resistant to other investigative procedures that cannot reach the degree
    of participation and state of mind of those involved. Consideration of this
    reality in evaluating investigative necessity does not circumvent the
    investigative necessity requirement.

[122]

We also reject
    the submission that law enforcements ultimate goal was to prosecute those
    involved for offences under s. 342.01(1) of the
Criminal Code
, for
    which an authorization could not have been granted. Even if this had been law
    enforcements objective, it is of no moment on this issue.

[123]

The task of the
    authorizing judge was to decide whether the investigative necessity requirement
    had been met in connection with the offences listed in the supportive affidavit
    and for which authorization to intercept was sought.  The task of the trial
    judge, on the
Garofoli
review, was to determine, based on the
    affidavit, as amplified on the review, whether there was sufficient reliable
    information on the basis of which the authorizing judge could have concluded
    the investigative necessity requirement had been met in connection with the
    listed offences.  Our assignment is yet a further step removed, but as with the
    others, is linked to the listed offences. Whether or not law enforcement hoped
    to prosecute those involved for s. 342.01(1) offences  absent evidence of bad
    faith  is irrelevant to a review whether the investigative necessity
    requirement was met in respect of the listed offences.

[124]

It is scarcely
    remarkable that evidence gathered in relation to one offence  say fraud or
    forgery  might be relevant, material and admissible in a prosecution for other
    offences with similar elements  say offences under s. 342.01(1) of the
Criminal
    Code
or associated preliminary crimes.  That such evidence may assist in
    proof of these other crimes is irrelevant to the question of the adequacy of
    the supportive affidavit to satisfy investigative necessity in connection with
    a listed offence.

[125]

Finally, we
    reject as factually inaccurate and legally unsound the appellants complaint
    that an investigative predisposition to the interception of private
    communications, and a manipulation of the authorization process to mask the
    true purpose of sidestepping the legal impediment to obtaining wiretap
    authorization regarding s. 342.01(1) offences, negated the claim of
    investigative necessity.

[126]

First, as
    submitted by the Crown, there was no rush to interception here. Project
    Instrument had been underway for about 15 months.  Other investigative
    techniques and procedures had been tried, but proved unavailing in the
    collection of inculpatory evidence.  Investigators did not manipulate the
    process to further their investigation of an offence for which an authorization
    could not have been obtained. The goals in this case reflected a legitimate
    police objective, including determining the individual roles and degrees of
    involvement of the owners and employees of Canadian Barcode in the facilitation
    of credit card skimming offences, identifying forged credit card manufacturers,
    traffickers and users, and tracing the proceeds of credit card crimes.

[127]

Even so, early
    anticipation of the necessity for interception to further investigative goals,
    even a predisposition towards interception as an investigative procedure, is
    not fatal to the investigative necessity requirement.  The requirement must be
    met on the basis of the affidavit material filed before the authorizing judge.  Provided
    that material, as it did here, satisfied the test on a branch of s. 186(1)(b),
    investigative necessity has been established.

[128]

In our view, the
    reviewing judge correctly found, on the basis of the amplified record, that the
    authorizing judge could have found that, practically speaking, no other
    reasonable alternative method of investigation was available in the
    circumstances of this particular criminal inquiry, and therefore, that the
    investigative necessity requirement had been satisfied.

[129]

Accordingly, we
    reject this investigative necessity ground of appeal.

(3)

The Obligation to Identify Known Persons

[130]

The appellant
    Shanghavi says that even though the trial judge was wrong in concluding that
    there are two categories of knowns under Part VI of the
Criminal Code
,
    he was correct in concluding that Shanghavi should have been included among the
    knowns listed in the authorization.  The judge was also correct in finding a
    violation of s. 8 of the
Charter
.  However, the trial judges mistake
    about the number of categories of objects of interception distorted his
    analysis under s. 24(2) of the
Charter
.

[131]

Shanghavi
    contends that the affiant was grossly negligent in his failure to include him,
    Shanghavi, as a known object of interception.  Shanghavi was a known person
    and the decision not to name him was deliberate.  This resulted in a serious
    breach that repeatedly compromised Shanghavis privacy interest.  On balance,
    the intercepted private communications should have been excluded as evidence
    against him.

[132]

We disagree.

[133]

Although we need
    not decide this issue, we are not satisfied that the trial judge applied the
    proper test in reaching his conclusion that Shanghavi should have been included
    as a known person in the authorization.  As discussed above, there are two
    categories of persons who may be the object of interceptions: knowns and
    unknowns.  The categories are mutually exclusive.  To repeat, there are not
    two categories of known persons.

[134]

The trial judge
    correctly found that investigators knew Shanghavis identity because a
    confidential informant had mentioned him.  When it came to the second part of
    the test, however, the trial judge erroneously considered that there were two
    categories of known persons, rather than one.  As a result, he concluded that
    Det. Sgt. Bedards failure to distinguish between these two categories meant
    that he had not applied the correct test in deciding not to include Shanghavi
    as a known object of interception.

[135]

In the end,
    however, we find it unnecessary to gauge the effect of the trial judges error
    on his decision about whether Shanghavi should have been included in the authorization
    as a known person.  It is unnecessary because we are satisfied that the trial
    judge correctly admitted the evidence of the intercepted private communications
    of Shanghavi.

[136]

Accordingly, Shanghavis
    ground of appeal regarding the obligation to include him as a known person fails.

C.

CONCLUSION ON THE
    WIRETAP AUTHORIZATION GROUNDS

[137]

For the
    foregoing reasons, we reject these grounds of appeal.

II.

THE CRIMINAL ORGANIZATION GROUND

A.

BACKGROUND

[138]

The appellants
    were all charged with offences relating to the activities of a criminal
    organization.  Shanghavi was acquitted.  However, Cattral, Brunet and
    Beauchamp were each convicted of: (i) participating in or contributing to the
    activities of a criminal organization for the purpose of enhancing the ability
    of the organization to facilitate or commit the indictable offence of buying
    and selling devices used to forge credit cards, contrary to s. 467.11(1) of the
Criminal Code
, and (ii) committing an indictable offence for the
    benefit of a criminal organization, contrary to s. 467.12(1).
[7]

[139]

The trial judge
    found: (i) that Cattral, Brunet and Beauchamp constituted a group of three
    persons comprising a criminal organization; (ii) that they had, as one of their
    main purposes, the commission or facilitation of the serious offence of selling
    devices they knew were intended to be used to forge credit cards; and (iii)
    that the commission of the offences resulted in a material benefit to each of
    them.

[140]

Cattral, Brunet
    and Beauchamp dispute these findings.  Whatever else they may have done, they
    say the activities in which they were engaged did not amount to those of a
    criminal organization.
[8]
We do not agree.

B.

Statutory Framework and
    Principles of Interpretation

[141]

The appeals
    raise two issues of statutory interpretation: the meaning of the words however
    organized and of the words one of its main purposes or main activities in
    the context of the definition of criminal organization under the
Criminal
    Code
.

[142]

The relevant criminal
    organization provisions for the purposes of the appeals are the following:

467.1(1) criminal organization
    means a group, however organized, that

(a)

is composed of three or more persons in or outside Canada; and

(b)

has as one of its main purposes or main activities the facilitation or
    commission of one or more serious offences that, if committed, would likely
    result in the direct or indirect receipt of a material benefit, including a
    financial benefit, by the group or by any of the persons who constitute the
    group.

It does not
    include a group of persons that forms randomly for the immediate commission of
    a single offence.

467.11 (1) Every person who, for the
    purpose of enhancing the ability of a criminal organization to facilitate or
    commit an indictable offence under this or any other Act of Parliament,
    knowingly, by act or omission, participates in or contributes to any activity
    of the criminal organization is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding five years.

(2)  In a prosecution for an offence
    under subsection (1), it is not necessary for the prosecutor to prove that

(a)

the criminal organization actually facilitated or committed an
    indictable offence;

(b)

the participation or contribution of the accused actually enhanced the
    ability of the criminal organization to facilitate or commit an indictable
    offence;

(c)

the accused knew the specific nature of any indictable offence that may
    have been facilitated or committed by the criminal organization; or

(d)

the accused knew the identify of any of the persons who constitute the
    criminal organization.

(3) In determining whether an
    accused participates in or contributes to any activity of a criminal
    organization, the Court may consider, among other factors, whether the accused

(a)

uses a name, word, symbol or other representation that identifies, or is
    associated with, the criminal organization;

(b)

frequently associates with any of the persons who constitute the
    criminal organization;

(c)

receives any benefit from the criminal organization; or

(d)

repeatedly engages in activities at the instruction of any of the
    persons who constitute the criminal organization.

467.12 (1) Every person who commits
    an indictable offence under this or any other Act of Parliament for the benefit
    of, at the direction of, or in association with, a criminal organization is
    guilty of an indictable offence and liable to a term of imprisonment for a term
    not exceeding fourteen years.

(2)  In a prosecution for an offence
    under subsection (1), it is not necessary for the prosecutor to prove that the
    accused knew the identity of any of the persons who constitute the criminal
    organization.

[143]

As alluded to
    earlier, the modern approach to statutory interpretation is purposive and
    contextual.  In
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC
    42, [2002] 2 S.C.R. 559, at para. 26, Iacobucci J. re-affirmed the formulation
    of the rule articulated by Elmer A. Driedger at p. 87 of his
Construction of
    Statutes
2d ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[144]

Legislative
    history and statements made to parliamentary bodies at the time the legislation
    was introduced may be of some assistance in understanding the background, purpose
    and intent of the legislation:
Rizzo & Rizzo Shoes Ltd. (Re),
[1998]
    1 S.C.R. 27, at para. 35.

[145]

The criminal
    organization provisions were first introduced into the
Criminal Code
in 1997.  However, they proved to be inadequate, partly because criminal
    organizations were able to avert their impact by restructuring themselves in
    different ways to avoid the strictures of the then definition of criminal
    organization.  In 2001, the Government proposed amendments to address these
    concerns and to ensure that the provisions applied in a focussed but flexible
    way to a broad range of criminal activities posing an elevated threat to
    society.

[146]

A statement made
    on May 8, 2001 by the then Minister of Justice and Attorney General for Canada
    to the Standing Committee on Justice and Human Rights regarding the Bill
    underlines this point and the objective of flexibility in the reach of the
    provisions:

The new provision will  provide police bodies and prosecutors
    with the required flexibility to prosecute more criminal organizations and more
    of the people who choose to participate in the activities of those
    organizations.

The new definition is
focused to ensure that only those who
    pose a serious threat to society are subject to the new measures and flexible
    to ensure that such individuals do not evade the full force of the law by
    simply restructuring their organizations
. [
Standing Committee on
    Justice and Human Rights
, 37th Parl., 1st Sess., No. 11 (8 May 2001) at
    0845 (Hon. Anne McLellan); emphasis added.]

[147]

Later, speaking
    to the Standing Senate Committee on Legal and Constitutional Affairs on
    November 21, 2001, the Minister underlined that the new provisions were not
    limited to notorious groups such as those engaged in illegal drug trafficking;
    they were intended to apply to a broad range of organized criminal activities,
    including property theft such as credit card fraud:

Organized crime
is also involved in serious property
    theft, such as automobile theft, to feed illegal markets.
We know that
    criminals are stealing from Canadians through
telemarketing, Internet and
credit card fraud
.  It is an understatement that organized crime has
    negative effects on public safety and security. [
Standing Senate Committee
    on Legal and Constitutional Affairs
, 37th Parl., 1st Sess., No. 16 (21
    November 2001) at 3:40 (Hon. Anne McLellan); emphasis added.]

[148]

The language
    used to define a criminal organization is obviously quite comprehensive, and
    signals Parliaments intention to extend the reach of the new provisions to a
    wide variety of groups who work collectively to commit serious crimes: see
R.
    v. Terezakis
, 2007 BCCA 384, 223 C.C.C. (3d) 344, at para. 11, leave to
    appeal to S.C.C. refused, [2007] S.C.C.A. No. 487 (Mackenzie J.A., writing in
    concurrence).

C.

Discussion

[149]

Cattral, Brunet
    and Beauchamp submit that Canadian Barcode was nothing more than a relatively small,
    but successful, store-front business in Ottawa operating with legitimate
    purposes and selling many legitimate products.  At worst, they say, there may
    have been some illegal components to the groups activities, but the 2001
    amendments to the
Criminal Code
were not designed to draw in a run-of-the-mill
    shady business.  The purpose of the amendments, they submit, was
not
to bring within the criminal organization rubric all manner of small
    businesses carrying on illegal transactions as one of their activities
    (emphasis in original).

[150]

Cattral, Brunet
    and Beauchamp focus their attack on two of the statutory components of a
    criminal organization: however organized and one of its main purposes or
    main activities.  They submit, first, that the illicit activities carried on
    through Canadian Barcode did not have a sufficient level of continuity and
    cohesion to meet the organizational prerequisite.  Second, they argue that,
    where an organization has both legitimate and illegitimate dimensions to its
    business, the Crown must demonstrate by way of a quantitative comparison
    between the legal and illegal aspects of the business, that the illegal portion
    comprises a main purpose or activity of the group. Finally, they submit that
    the trial judge compounded the foregoing errors by reversing the onus of proof.

[151]

We reject these
    arguments.

(1)

A Group, However Organized

[152]

In
R. v.
    Venneri
, 2012 SCC 33, [2012] 2 S.C.R. 211, at paras. 27-41, the Supreme
    Court of Canada sketched out the contours of what a group, however organized
    is meant to portray.  Whether a targeted group is a criminal organization is
    to be determined on a flexible basis, not on the basis of pre-conceived notions
    about what organized crime may look like.  At the same time, however, care must
    also be taken not to overextend the reach of the provisions and turn every
    conspiracy of three or more persons involving the commission of serious crimes
    for material benefit into a criminal organization.

[153]

This balance
    between flexibility and overreaching is important.  The
Venneri
decision strikes it in three broad ways:

a)

by highlighting the
    need for some form of structure and degree of continuity and coordination, as
    a means of distinguishing between a criminal organization and other forms of
    illegal group activity, such as conspiracies, that are already adequately dealt
    with in the
Criminal Code
: at paras. 27-31 and 35;

b)

by making it clear
    that the criminal organization provisions are not intended to capture only
    certain stereotypical [models] of organized crime (biker gangs and drug
    cartels, for example): at para. 41; and

c)

by resisting the
    temptation to adopt a checklist of common characteristics or attributes that
    must be satisfied in every case: at paras. 38-40.

[154]

As Fish J.
    stated, at paras. 40-41:

It is preferable by far to focus on the goal of the
    legislation, which is to identify and undermine groups of
three or more
    persons that pose an elevated threat to society due to the ongoing and
    organized association of their members
.  Groups of individuals that
    operate on an
ad hoc
basis with little or no organization cannot be
    said to pose the type of increased risk contemplated by the regime.

Courts must not limit the scope of the provision to the
    stereotypical model of organized crime. ...
Some criminal entities that do
    not fit the conventional paradigm of organized crime may nevertheless, on
    account of their cohesiveness and endurance, pose the type of heightened threat
    contemplated by the legislative scheme
. [Emphasis added.]

[155]

The group must
    therefore have
some form
of structure and degree of continuity, but
    even a minimal amount may suffice:

Working collectively rather than alone carries with it
    advantages
to criminals who form or join organized groups of like-minded
    felons. Organized criminal entities thrive and expand their reach by developing
    specializations and dividing labour accordingly; fostering trust and loyalty
    within the organization; sharing customers, financial resources, and insider
    knowledge; and, in some circumstances, developing a reputation for violence.
A
    group that operates with even a minimal degree of organization over a period of
    time is bound to capitalize on these advantages and acquire a level of
    sophistication and expertise that poses an enhanced threat to the surrounding
    community
[
Venneri,
at para. 36; emphasis added.]

[156]

Applying these
    guidelines to the facts of these appeals, we are satisfied that the Canadian
    Barcode Group had a sufficient level of continuity and cohesion to meet the
    requirements of a criminal organization, as defined in the
Criminal Code
.
    It had both a structure (in this case, organization through a corporate
    business model) and a coordinated division of labour characterized by a considerable
    degree of continuity, in terms of the duration of the endeavour and its suppliers,
    customer base, and personnel.  The Canadian Barcode Group was not simply a
    group of individuals who came together collectively for the purpose of
    committing a single offence, or even a small number of offences.  They were
    organized.  And they were organized to commit or facilitate the commission of credit
    card fraud over a wide territorial range, including at least Ontario, Quebec,
    the United States and, perhaps, Europe.

[157]

The fact that
    Canadian Barcode is a corporation is not particularly meaningful.  For purposes
    of these criminal activities, no distinction need be drawn between the acts
    of the corporation and those of the members of the Group.  Canadian Barcode is
    simply the conduit  it happens to be a corporation  through which Cattral,
    Brunet and Beauchamp chose to funnel their activities and the proceeds of those
    activities, enabling them to hide behind the shield of an apparently legitimate
    front.

[158]

Nor is the fact
    that the Canadian Barcode Group was a small group of people particularly
    meaningful.  Small is not a factor once the three-person threshold has been
    met, as it has been here.

[159]

Each of the
    three members of the Group had their respective areas of responsibility.
    Cattral was the face of the operation to authorities and others, as well as the
    organizations technical expert.  He developed the key software program
    (RenCode) that was widely used to forge credit cards. He also provided
    technical assistance to customers and suppliers.  Brunet was responsible for
    the financial management of the organization and participated in the sale of
    devices. Beauchamp was dedicated to the sale of the devices.

[160]

The Canadian
    Barcode Group was active for at least one and a half years (Canadian Barcode
    itself was incorporated by Cattral and Brunet in 1999).  Project Instrument was
    initiated in 2002 after devices sold by Canadian Barcode were recovered by
    police in credit card forgery schemes.  This period of temporal continuity was
    not inconsequential.  Continuity of time.

[161]

The Canadian
    Barcode Group was also characterized by a continuity and cohesiveness of suppliers,
    distribution base and personnel.  We have described the roles of Cattral,
    Brunet and Beauchamp above.

[162]

The Groups
    chief supplier of skimming devices was SST in Montreal.  Its principals,
    Gehmlich and Winslow, designed and manufactured the skimming devices.  Canadian
    Barcode was the only Canadian buyer forming the basis for SSTs conviction, and
    one of SSTs largest customers.  Continuity of supply.

[163]

Canadian
    Barcodes primary customers in the credit card skimming endeavour were Krespine,
    Persaud and Shanghavi.  Each was a street-level fraudster who used the devices
    sold to him by Canadian Barcode to acquire data from others credit cards,
    store the data, and transfer the data to counterfeit credit cards and
    identification cards they had (or had caused to be) manufactured.  The Canadian
    Barcode Group formed part of a consistent network for the ultimate theft and
    illegal use of credit card data. Continuity of distribution.

[164]

The cohesion of
    the Canadian Barcode Group and their suppliers and customers was consolidated
    through their frequent contact and other personal interactions.  Cattral and
    Brunet introduced Shanghavi to SST.  Persaud was a long-time friend and close
    associate of Cattral and Brunet.  Cattral, Brunet and Beauchamp all provided
    technical support and other assistance to Krespine, Persaud and Shanghavi in
    various forms and at various times.  Cattral, Brunet and Beauchamp all
    facilitated the initial and continuing contacts between Krespine, Persaud and
    Shanghavi.  Continuity of personnel.

[165]

In addition,
    Cattral and Beauchamp organized a meeting at Canadian Barcodes premises, where
    they introduced Krespine to Persaud and Shanghavi.  The intercepts indicate
    that Shanghavi told Cattral that he had been waiting for six months to meet Krespine,
    and Persaud told an associate that after waiting for years, he had just met
    the biggest printer in Montreal.  Cattral, Brunet and Beauchamp all
    facilitated further and continuing contacts between Krespine, Persaud and
    Shanghavi for purposes of encouraging the sale of the skimming devices.

[166]

The Canadian
    Barcode Group formed the hub of this activity throughout.

[167]

On the basis of
    this evidence, we are satisfied that the Canadian Barcode Group displayed the
    necessary form of structure and degree of continuity and coordination that
    Parliament required in the 2001 amendments to engage the organized crime
    provisions that are part of the exceptional regime it has established under the
Code
:
Venneri
, at para. 29.

(2)

One of its Main Purposes or Main Activities

[168]

In spite of the
    foregoing, Cattral, Brunet and Beauchamp contend that the Crown failed to prove
    they comprised a criminal organization because it failed to establish that
    the facilitation or commission of the serious offences involved was one of [the
    Groups] main purposes or main activities.  To do this, they say, the Crown
    was required to lead evidence comparing the legal and illegal components of the
    business on a quantitative basis.

[169]

Again, we
    disagree.

[170]

We agree with
    Crown counsel that there is no requirement to weigh criminal purposes and
    activities against non-criminal purposes and activities before making a
    criminal organization designation.  While we would not say that such evidence
    may never be relevant, nothing in the language, purpose or objects of the criminal
    organization provisions mandates such an inquiry.  Such an inquiry would also
    be unworkable.

[171]

The language of
    the definition of criminal organization in s. 467.1 is instructive.  It
    requires that a group have as one of its main purposes or main activities the
    facilitation or commission of the serious crimes described.  This tells us a
    number of things.  First, it tells us that such a group may have more than one
    main purpose or activity.  Second, there is a distinction between purposes
    and activities, and either one or the other can qualify.  Third, only one of the
    purposes or activities of the group need be the criminal purpose or activity.  Finally,
    it is not any purpose or activity that counts, but only a main one.

[172]

A number of
    things follow logically from these observations.  First, the criminal purposes
    or activities of the organization need not be quantitatively or numerically
    dominant, because multiple activities cannot all fall into that category.
    Second, a group may have legitimate purposes but still have main activities
    that are illicit.  Third, the impugned purpose or activity must be at least
    more than a
de minimus
feature of the endeavour at least in a
    qualitative, if not quantitative, sense.

[173]

These implications
    all work against the quantitative comparison analysis proposed by the
    appellants.

[174]

The purpose and
    intent of the criminal organization provisions also militate against a
    quantitative comparison approach.  As Fish J. noted in
Venneri
, the
    goal of the legislation is to identify and undermine groups of three or more
    persons that pose an elevated threat to society due to the ongoing and
    organized association of their members, and to do so with a purposive
    approach that eschews undue rigidity and is not fixated upon stereotypes that
    fit the conventional paradigm of organized crime: at paras. 29 and 40-41.

[175]

This intent
    cannot be accomplished if the word main in s. 467.1 of the
Criminal Code
is given the meaning the appellants propose and the Crown is required to
    quantify the illicit activities in relation to legitimate activities.

[176]

For example,
    although the appellants say they do not claim that a specific percentage of an
    organizations activities must be illicit for the one of its main purposes
    threshold to be reached, they insist that the trial judge erred by not
    conducting some comparison between the legal and illegal dimensions of the
    business.  But how else would such an approach work?  Some conclusions about
    the quantitative comparison between the legal and illegal aspects of the
    business would have to be reached.  How could they be expressed except on some
    level of proportionality?

[177]

A quantitative
    comparison is by definition one that deals with relative size, magnitude,
    amount or measurement.  There is no point in having a comparison if the
    comparison is meaningless.  To make it meaningful, would the Crown have to show
    that the criminal activities constituted more than 50% of the groups business,
    for it to be a main purpose?  Would 49% not count?  Where would the line be
    drawn? At 30%? 25%? 10%? 3%?  The approach is unworkable.

[178]

Similarly, the
    appellants appear to suggest that the relative number of sales is the
    appropriate metric for a quantitative comparison. Nothing about the criminal
    organization provisions suggests relative number of sales to be the applicable
    metric. What would be the basis for a quantitative comparison? Percentage of
    profits? Number of sales? Time invested? The purposive approach to these
    provisions outlined in
Venneri
indicates that a focus on a single
    metric is not appropriate.

[179]

The approach is
    unworkable for yet another reason.  Evidence establishing the size, importance
    and extent of substantially all the criminal and non-criminal aspects of the
    groups business may not exist. Criminal organizations do not always keep
    records that would pass an audit.  The evidence may also be unreliable. As the
    evidence in this case shows, books and records may be doctored to avoid
    detection of illegal activities and to highlight legal ones.  As pointed out
    above, the evidence may be difficult, if not impossible, to assess through the
    quantitative comparison lens.

[180]

In addition, the
    quantitative comparison approach risks undermining the purpose of the
    legislation because organized criminals could adapt their operations to stay on
    the right side of whatever line is drawn.  It suggests that some amount of
    non-criminal activity can outweigh serious ongoing criminality.  As the
    respondent points out in its factum,

[t]his interpretation would effectively allow a group to cancel
    out, counterbalance and/or neutralize its bad deeds with good ones (or at least
    less bad ones).  It would create a simple way for criminal organizations to
    avoid criminal liability without actually reducing the seriousness or frequency
    of their criminal activities.

[181]

We agree with
    this submission.  The quantitative comparison approach to main purposes or
    main activities gives rise to the very sort of problem that led to the
    implementation of the 2001 amendments to the criminal organization provisions
    in the first place.

[182]

In our view,
    main is used in s. 467.1 in a qualitative sense.  It is the importance of the
    criminal purpose or activity to the perpetrators and not its quantitative relationship
    with other non-criminal aspects of the groups activities that determines
    whether it is a main purpose or activity.  Serious ongoing criminality is
    still serious ongoing criminality even it is camouflaged under a cover of
    non-criminal activity, however quantitatively significant that non-criminal
    activity may be.

[183]

As is evident
    from the above, importance should not be determined quantitatively. An
    important purpose or activity will be one in which the members of the group,
    individually or collectively, have invested significant efforts. The nature and
    degree of effort invested in the purpose or activity will be a telling marker whether
    the purpose or activity is a main one. The broader circumstances  such as
    the scope of the illegal activities and the environment in which the group
    operated  will also be relevant.

[184]

Here, for
    example, Cattral, Brunet and Beauchamp dedicated considerable time and effort
    into fostering the criminal aspects of their enterprise by creating networking
    opportunities between other fraudsters, using their technical expertise to make
    advances in the skimming field, and taking significant steps to conceal their
    illegal activities and those of their customers. There was ample evidence that
    the commission or facilitation of credit card fraud was
one
of [the
    Canadian Barcode Groups] main purposes or main activities in the foregoing
    sense.

(a)

The Evidence Regarding One
    of the Main Purposes or Main Activities

[185]

The sale and
    distribution of Canadian Barcode devices, software and materials capable of
    being used  and, on the evidence, actually used  to forge credit cards and
    otherwise facilitate the fraudulent scheme was not a
de minimus
or
    limited edition activity.

[186]

The scheme was
    decidedly international in its scope, involving sales to customers in Canada
    (Ontario, Quebec and Manitoba), the United States, France, and London, England
    (the latter to individuals thought to be involved in raising funds for
    terrorist activities in Pakistan and Afghanistan).

[187]

The scheme was
    deeply felonious in its composition. It involved a broad web of contacts and
    actors, at least some of whom were known to be, and were in fact, active charlatans
    in this type of activity.  These included Persaud, who was a major credit card
    fraudster in the Toronto area, and Krespine, who was lauded as the biggest
    printer [of counterfeit cards] in Montreal.  On the supply side, they included
    Gehmlich and Winslow, whose company, SST, designed and manufactured the
    skimming devices and sold those devices knowing that Canadian Barcodes
    customers were using them to commit fraud.  Cattral himself had a long history
    of friendship with Persaud and his family, had been implicated in skimming
    offences on five different occasions in the mid-to-late 1990s, and boasted
    that he used to be one of the top ten fraudsters in Ottawa.

[188]

Earlier in these
    reasons we described the degree of organization dedicated to the fraudulent credit
    card skimming scheme by the Canadian Barcode Group.  This manner of
    organization in itself speaks volumes about the importance Cattral, Brunet and
    Beauchamp placed on the illegal purpose of their endeavour and the illicit
    activities in which they engaged. In addition, the manner in which the
    organization operated in carrying out the endeavour reinforces its importance
    to the Group. The scheme was sufficiently important to Cattral, Brunet and
    Beauchamp that they went to considerable lengths to foster and enhance its
    success, as evidenced by the following:

a)

Cattral, Brunet and
    Beauchamp provided introductions and promoted continuing connections among the
    criminal actors involved in the scheme.  Cattral and Brunet introduced
    Shanghavi to Ghemlich and Winslow at SST; Cattral and Beauchamp organized a
    meeting at the Canadian Barcode premises where they introduced Shanghavi and
    Persaud to Krespine.  As we have said, the wiretap intercepts reveal regular
    communications among all these individuals, passing along contact information
    and alerting each other to potential problems with their products and even to
    potential incidents of police surveillance.

b)

Cattral, Brunet and
    Beauchamp provided technical expertise to their fraudster customers on ways to
    commit credit card crime, thus improving the customers ability to commit this
    type of crime.  They did research and provided feedback to SST to assist in the
    development of new and improved devices and equipment (such as the MIR38 and
    the KT104).  Cattral was the author of the RenCode software program, which
    although it also had legitimate uses  was a leading tool for downloading credit
    card data from magnetic stripe readers and transferring that data to the
    magnetic stripes on forged cards.

c)

The members of the
    Group took comprehensive measures to conceal and protect their illegal activities,
    including:

i.

using aliases in Canadian Barcodes sales records to conceal the names
    of their customers, as described above;

ii.

sharing information about police surveillance and counter-surveillance
    techniques and bank anti-fraud countermeasures;

iii.

alerting each other to potential law enforcement actions (for example,
    Cattral warned Shanghavi that one of his devices (data logger #3225) had been
    seized by police and gave advice on how to avoid detection, and when Cattral was
    inadvertently tipped off by a journalist about a planned police raid the
    following day, Brunet immediately contacted Shanghavi and Persaud to warn them,
    telling Persaud that the Canadian Barcode Group planned to remove all stock by
    the next day and warning Shanghavi that were cleaning out this place
    tonight);

iv.

by encouraging the use of encryption techniques to foil the police;

v.

by choosing not to advertise publicly certain products, for example by
    deciding not to display the MIR38 on their website; and

vi.

by engaging in cash transactions in order to avoid producing traceable
    records.

[189]

When all this
    evidence is viewed as a whole, in the context of the formal structure,
    continuity and coordination of the overall operations of the Canadian Barcode
    Group, it is unlikely in the extreme that all the above was simply an
    unimportant blip or subplot in an otherwise legitimate business endeavour.  We
    are satisfied that the illicit credit card scheme was one of [the] main
    purposes or main activities of the Canadian Barcode Group.

[190]

Even if the main
    purposes of the Canadian Barcode Group were legitimate business purposes, as
    Cattral, Brunet and Beauchamp assert (a position we do not accept on the
    evidence), it is readily apparent that one of the Groups main activities was
    the facilitation and commission of a broad array of serious crimes involving
    the use of forged credit cards.

(3)

The Burden of Proof

[191]

Finally, we do
    not accept that the trial judge reversed the burden of proof by observing that
    the appellants did not call any evidence on this issue.

[192]

Given the
    foregoing conclusion that there is no requirement in law to make a quantitative
    comparison between criminal and non-criminal activities, there was no onus on
    the Crown to establish some quantitative relationship between the two types of
    activities.  Accordingly, there was no need for the appellants to rebut that
    onus.

[193]

In any event,
    the trial judge did not base his decision on the presence or lack of such
    evidence.  He simply observed that he had no evidence on the issue, and that
    the appellants had adduced none.  This did not shift the burden to the defence.

D.

Conclusion ON the
    Criminal Organization Ground

[194]

For the
    foregoing reasons, we reject this ground of appeal.  The trial judge properly
    found that the Canadian Barcode Group constituted a criminal organization as
    defined in s. 467.1(1) of the
Criminal Code
.

III.

THE
    INDIVIDUAL GROUNDS OF APPEAL

A.

Section 342(3) (Shanghavi
    and Cattral)

[195]

Cattral and
    Shanghavi were both convicted on a number of counts relating to the fraudulent
    possession of credit card data, contrary to s. 342(3) of the
Criminal Code
.
[9]

[196]

Section 342(3)
    reads as follows:
[10]

Every person who, fraudulently and without colour of right,
    possesses, uses, traffics in or permits another person to use credit card data,
    whether or not authentic,
that would enable a person to use a credit card
or to obtain the services that are provided by the issuer of a credit card to
    credit card holders is guilty of

(a) an indictable offence and is liable to imprisonment for a
    term not exceeding ten years; or

(b) an offence punishable on summary conviction. [Emphasis
    added.]

[197]

Count 5 (Cattral
    and Shanghavi jointly) and Count 26 (Shanghavi) involved credit card data
    belonging to the same individual (Paula Landry).  Shanghavi was initially in
    possession of the data.  He transferred the data to Cattral during an Internet chat
    on June 8, 2004.  Ms. Landrys credit card had been cancelled in January of
    that year, however, and was therefore no longer active or valid.

[198]

Counts 22, 24
    and 25 all related to Cattral and charged him with possession of credit card
    data from certain Petro Canada credit cards (Count 22), a Royal Bank of Canada
    debit card (Count 24) and a TD Canada Trust debit card (Count 25) on or about
    July 21, 2004.  These cards had either previously been blocked for unauthorized
    use, or the Crown led no evidence as to whether the data could be used.

[199]

Shanghavi and
    Cattral do not contest that they were in unauthorized possession of credit card
    data.  They argue, however, that the Crown did not prove or could not prove
    they possessed data that would enable a person to use a credit card, contrary
    to the section, because the data upon which the use would be based was
    unusable, having previously been cancelled or expired.

[200]

This Courts
    decision in
R. v. Kokoouline
, 2009 ONCA 253, 82 W.C.B. (2d) 413, and
    its subsequent decision in
R. v. Tuduce
, 2014 ONCA 547, 314 C.C.C.
    (3d) 429, are dispositive of this issue.  In both, the Court held that whether
    the cards from which the data had been extracted could successfully be used by
    the fraudsters to defraud financial institutions was irrelevant to the offence
    created by s. 342(3).  In
Kokoouline
, the Court held, at para. 6:

Section 342(3) of the
Criminal Code
does not require
    that the Crown prove that the issuer of the credit card could be successfully
    defrauded by its use before the Crown can obtain a conviction under that
    section.  In our view, the question of whether the cards could be successfully
    used would be relevant to a charge of defrauding the financial institutions who
    issued the cards, but is not relevant to the offence created by s. 342(3).

[201]

More recently,
    in
Tuduce
, the Court re-affirmed this principle.
Tuduce
was
    not a case where the underlying card had been cancelled or blocked, but one in
    which the Crown had not proven the track data matched that of a valid account
    and could therefore be used. The Court said, at paras. 89-90:

[E]ven if an account has been blocked or a card cancelled, a
    conviction under s. 342(3) can be made out. The same logic applies where the
    reason the data might not enable the successful use of a credit card is that
    the track data did not match that of a valid account.

The wording of s. 342(3) makes this clear. It provides that the
    offence is made out "whether or not the data is authentic".
    Accordingly, an accused can be convicted whether or not the data in the accuseds
    possession matches perfectly with genuine bank accounts.

[202]

The appellants
    ask us to overrule these decisions.  As a panel of three, we cannot do so.
[11]
In any event, we agree with the principle as applied in
Kokoouline
and
Tuduce.
The words whether or not authentic in s. 342(3) must be
    given meaning.  The offence can be made out regardless whether the data is
    authentic
i.e.
, legally valid, reliable or trustworthy
[12]
 in other words, regardless whether the credit card underlying it is invalid
    because it has expired, has been blocked for unauthorized use or is inactive
    for other reasons.

[203]

We reject this
    ground of appeal.

B.

Additional Grounds of
    Appeal Raised by Brunet

[204]

The appellant
    Brunet challenges her convictions on Count 6 (conspiracy) and Count 15 (selling
    a device, the KT100, knowing it was intended for use in forging credit cards).

(1)

Count 6 (Conspiracy)

[205]

Count 6 charged
    Brunet with conspiring with Persaud, between May 5 and May 14, 2004, to commit
    the indictable offence of forging credit cards.  She argues that her conviction
    on this count should be set aside for two reasons:

a)

the trial judge erred
    by inferring the existence of a two-person conspiracy between her and Persaud
    from his earlier finding of a broader conspiracy between her, Cattral,
    Beauchamp and Persaud for purposes of the co-conspirators exception to the
    hearsay rule regarding the wiretap evidence; and

b)

the trial judge failed
    to find the existence of an agreement to forge credit cards between her and
    Persaud; at best there was an agreement that she would provide assistance to
    him, but no common objective to commit the crime of forging credit cards.

[206]

We do not accept
    either submission.

[207]

The trial judge
    correctly recognized that the Crown was required to prove: (i) that there was
    a conspiracy or agreement between [Brunet and Persaud] to forge credit cards;
    and (ii) that Brunet and Persaud were members of that conspiracy.

[208]

In conducting
    his analysis about whether there was such an agreement, the trial judge did refer
    to his earlier finding that there was a common design between Brunet, Cattral
    and Beauchamp, who were actively involved on behalf of Canadian Barcode in
    selling devices and providing technical assistance to assist in the commission
    of credit card fraud, with Persaud.  He made this finding when considering
    the co-conspirators exception to the hearsay rule for the purpose of
    determining the use to which the wiretap intercepts could be put.  The trial
    judge also referred to his earlier finding that Brunet, Cattral, Beauchamp and
    Persaud were part of a common design to assist Persaud to forge credit cards.

[209]

The trial
    judges analysis did not end there, however.  He went on to find  based on a
    considerable bank of evidence  that there was in fact a mutual agreement
    between Brunet and Persaud whereby Persaud would forge credit cards and Brunet
    would provide him with the devices, supplies and other assistance necessary to
    enable him to do so.  In other words, Brunet and Persaud shared the same
    objective.  That is a conspiracy to forge credit cards, in our view.

[210]

Brunet sought at
    trial, and does here as well, to make the fine distinction between knowledge
    of, and doing acts in furtherance of committing a crime, on the one hand, and
    the
actus reus
required for conspiracy, namely mutuality of objective,
    on the other.  While that distinction may exist  difficult as it may be to
    make out  the law is also clear that [k]nowledge and acts in furtherance of a
    criminal scheme do, however, provide evidence, particularly where they
    co-exist, from which the existence of an agreement may be inferred:
R. v.
    Alexander
(2005), 206 C.C.C. (3d) 233 (Ont. C.A.), at para. 47, leave to
    appeal to S.C.C. refused, [2005] S.C.C.A. No. 526.  That is what the trial
    judge concluded here.

[211]

In arriving at
    his finding of a mutual agreement, the trial judge relied on an ample body of
    evidence, including the following:

a)

Brunet conceded her guilt
    on a related charge (Count 7) of having sold a data logger and a large number
    of blank plastic credit cards to Persaud knowing they were intended for use in
    forging credit cards.  Persaud ordered these devices from Brunet on May 6, 2004
    (within the dates on the indictment).  Brunet told him they needed a pretend
    address to ship the package to, and Persaud told her to address it to Sean
    Brown  one of his aliases  at a fictitious address in Toronto and suggested
    she send it to a FedEx outlet on Front St.  They also discussed changing the
    password on the data logger.

b)

On May 13, 2004,
    Persaud called Canadian Barcode and spoke to Brunet about the new password she
    was supposed to have included in the package that she sent to him, but that he
    could not find.  Brunet advised that she would email him three potential
    passwords.

c)

Brunet took other
    steps to conceal the May 6 and other transactions between Canadian Barcode and
    Persaud.  The May 6 sale was recorded in the Canadian Barcode sales records
    (the ACT database) as a sale to Steve, another of Persauds aliases.  In
    addition, there were other references to sales to Steve in the ACT database
    going back as far as 2001.

d)

Brunet was quick to
    take additional steps in July 2004 to protect Persaud immediately after she had
    received the tip about a potential police raid the following day.  She
    discussed the information with Cattral and said, Maybe Ill call G on his cell.
    She did so, telling Persaud: I wanted to give you a warning; Theyre gonna
    do a raid in Ottawa or something like that.

[212]

The trial judge
    inferred from the tip-off incident that Brunet was assisting Persaud to avoid
    detection.  On this basis, as well as for the reasons set out below, he found
    that the only rational conclusion to draw from Brunets provision of assistance
    to Persaud with the knowledge that she was assisting him in committing the
    offence of forging credit cards, was that Brunet had agreed to the commission
    of the offence.  These inferences and findings were open to the trial judge on
    the record.

[213]

As outlined
    above, there was ample evidence on the record as well to support the following
    findings made by the trial judge:

I find that there was an agreement based on their words and
    actions between Brunet and Persaud that Persaud would forge credit cards and
    that Brunet would provide assistance to him to allow him to forge credit cards
    by furnishing the devices necessary to commit credit card fraud, by supplying
    the supplies such as blank mag stripe cards and foil to forge credit cards, by
    assisting him and Canadian Barcode  to avoid detection by creating an account
    in the financial records at Canadian Barcode in the name of Steve, a false
    name, and by sending supplies and devices to Persaud under the alias Sean
    Brown at a fictitious address.

Brunet has admitted to an act, namely the selling of a data
    logger and blank plastic cards to Persaud and I infer that she knew that he
    intended to use the device and blank cards to forge credit cards from the
    wiretap evidence and her guilty plea to Count #7. I infer that there was a
    mutual agreement between Persaud and Brunet and that Brunet would assist
    Persaud to commit credit card fraud by supplying him with devices and supplies
    to commit credit card fraud, and Persaud would purchase such devices and obtain
    technical support from Canadian Barcode and commit credit card fraud. Brunet
    also agreed with Persaud to conceal his identity and based on this and the
    above evidence, I find that Brunet was a member of the conspiracy along with
    Persaud. I infer that there was an agreement between Brunet and Persaud that
    she would assist him to commit credit card fraud and he would purchase devices
    and obtain assistance including concealing his identity and commit credit card
    fraud. I agree with the Crowns submission that this provides evidence from
    which the existence of an agreement may be inferred.

[214]

These are not
    findings that Brunet merely had knowledge of a scheme to commit criminal acts
    and provided some assistance in furtherance of the scheme.  These are findings
    that she and Persaud had a mutual objective  an agreement  to commit the
    crime of forging credit cards: Brunet provided the necessary devices and
    supplies, and Persaud purchased and used them for this purpose.  They were
    members of a two-person conspiracy to commit the offence of forging credit
    cards.

[215]

We see no error
    in law on the part of the trial judge, and no basis for interfering with his
    findings of fact, regarding Brunets conviction on Count 6.

(2)

Count 15 (Selling Devices Knowing They Were Intended For Use in Forging
    Credit Cards)

[216]

Count 15 charged
    Cattral, Brunet and Beauchamp with selling devices (the portable magnetic
    stripe reader known as the KT100) knowing they were intended to be used in
    forging credit cards, contrary to s. 342.01(1)(b) of the
Criminal Code
.
    The trial judge dealt with this charge on the basis that Brunet had pled guilty
    to it. Brunet denies doing so and says, correctly, that she did not concede her
    guilt on Count 15.  She argues that this mistake is fatal to her conviction
    because she was denied a hearing on the merits of the charge.

[217]

Brunet acknowledges
    that she made concessions during the trial.  She conceded that she was guilty
    on Count 7 (referred to above) and on Count 12.  Count 12 was a related charge
    against Cattral, Brunet and Beauchamp concerning the sale of devices knowing
    they were intended to be used in forging credit cards (in that case, the
    portable magnetic stripe reader known as the MIR38).

[218]

The Crown admits
    the mistake, but submits that it caused no substantial wrong or miscarriage of
    justice and that the conviction should be upheld on that basis.

[219]

We agree that
    Brunets conviction on Count 15 was virtually inevitable having regard to: (i)
    her concession of guilt on Count 12; and (ii) the trial judges findings with
    respect to the sales of the KT100 devices and Brunets knowledge as to their
    intended use.

[220]

Brunet (together
    with Cattral and Beauchamp) was found guilty on charges of
buying
the
    MIR38 device (Count 11) and the KT100 device (Count 14).  In dealing with these
    counts, the trial judge conducted a detailed review of the evidence respecting
    both the purchases and the sales of these devices.

[221]

Brunet did not
    deny that she had been involved in the purchase of these devices from SST, but
    took the position that she had done so only to restock Canadian Barcodes
    shelves and that she had no knowledge that the devices were intended for use in
    forging credit cards.  Lack of
mens rea
on this basis was her defence
    to Count 15 as well.

[222]

It is not
    completely accurate to say, however  as Brunet submits  that she did not
    receive a hearing on Count 15. In closing submissions, her counsel specifically
    acknowledged that there were intercepts  involving Ms. Brunet in terms of the
    actual sales of [the KT100] device, but argued, as he did with Count 14, that the
    evidence did not support a finding that she knew of the KT100s illegal
    purpose.

[223]

The trial judge
    rejected the lack-of-knowledge-of-the-purpose defence with respect to the
    purchases of the KT100s.

[224]

In connection
    with his disposition on Count 14 (involving the purchases of the KT100s), the
    trial judge found that Brunet knew that the KT100 constituted the inner
    workings of the MIR38 and knew or was wilfully blind to the fact that the
    kits (as she called them), or inner workings of the MIR38, were devices
    intended for use in forging credit cards.  Brunet invited a finding of guilt on
    Count 12 involving the sale of the MIR38 devices.  It must follow that by
    participating in the sale of the KT100s (about which her counsel conceded there
    was evidence), Brunet knew the KT100s were intended to be used for illegal
    purposes, since she knew the MIR38s were so intended.

[225]

After his
    review of the evidence, the trial judge made the following findings with
    respect to both the purchases and sales of the devices:

Based on the above evidence including the intercepted wiretap
    communications, I find beyond a reasonable doubt that Cattral, Brunet and
    Beauchamp purchased the MIR38s, KT100s and KT104s from SST in Montréal on
    behalf of Canadian Barcode. I further find that all three employees, Brunet,
    Cattral and Beauchamp were aware that these items were being purchased based on
    their telephone calls with Gehmlich inquiring about the status and delivery
    dates for the above devices in the intercepted communications. Based on the
    above evidence and the wiretap evidence, I also find beyond a reasonable doubt
    that Cattral, Brunet and Beauchamp sold these devices to various customers
    using unverified or false names, and generally the invoice was made out to
    Cash Sale.

I find that Cattral, Brunet and Beauchamp knew that the MIR38,
    KT100 and KT104 devices were intended to be used to forge credit cards based on
    their decision not to advertise the MIR38, the KT100 and the KT104 devices, the
    wiretap interceptions including the website and their intention to sell the
    devices only to customers who attended the Canadian Barcode premises.

[226]

There is ample
    support in the record for these findings.  Consequently, even if the trial
    judge had not been under the mistaken impression that Brunet had conceded her
    guilt on Count 15, the Crowns case was so overwhelming that a reasonable and
    properly instructed trier of fact would inevitably have convicted on this count.

[227]

We reject this
    ground of appeal.

C.

Additional Grounds of Appeal Raised by
    Beauchamp

[228]

Beauchamp
    appeals his conviction on Count 9  selling a device (a PMR600 magnetic stripe
    reader) knowing that it was intended for use in forging credit cards, contrary
    to s. 342.01(1)(b) of the
Criminal Code.
He says he should not have
    been convicted of that offence because the purchaser in the transaction forming
    the basis for the charge was an undercover police officer who, by definition,
    could not have intended to use the device illegally.  He therefore could not
    have known the device was intended for such use. He concedes that, if he is not
    guilty on Count 9, he should be convicted of the lesser offence of attempting
    to commit this crime.

[229]

The Crown
    submits that s. 342.01(1)(b) does not require it to prove the purchasers
    intent; the intent of the seller is all that matters.  We agree.

[230]

The following is
    not in dispute: (i) the device was never actually used for the purpose of
    forging credit cards, and the purchasing undercover officer had no intention of
    using it for that purpose; (ii) Beauchamp sold the PMR600 device to the
    undercover officer; and, (iii) when he did so, Beauchamp undoubtedly believed
    that the purchaser was a criminal, and undoubtedly believed that the
    purchaser intended to use the device to forge credit cards.

[231]

Beauchamp relies
    upon the decision of the Supreme Court of Canada in
United States of
    America v. Dynar
, [1997] 2 S.C.R. 462, at paras. 35 and 37-44.  In that
    case, the appellant was facing extradition to the United States on charges of attempted
    money laundering and conspiracy to commit money laundering.  But he was to receive
    the funds for that alleged purpose from an undercover police officer.  The
    Court held that because the money Dynar was to receive was not, in fact, the proceeds
    of crime, Dynar could not have known that the funds constituted the proceeds of
    crime; one cannot know the impossible,
i.e.
, what is factually untrue:
    at para. 47.

[232]

We agree with
    the trial judge that
Dynar
is distinguishable.  Here, unlike in
Dynar
,
    the Crown led evidence to establish the necessary intent for conviction:
    Beauchamp knew that the device was intended to be used to forge credit cards, and
    whether the purchaser actually intended to use the purchased device for that
    purpose is not material.

[233]

We accept the
    trial judges conclusion, at para. 160 of his reasons, as an accurate statement
    of the law:

I agree with the Crowns submission that the offence under
    section 342.01(1)(b) is made out when the two essential elements are proven
    beyond a reasonable doubt by the Crown. The section states that [e]very person
    who, without lawful justification or excuse, (b) buys or
sells
,  any
    instrument,
device
, apparatus, material or thing
that the person
    knows
, has been used or knows it
is adapted or intended for use in
    forging of falsifying credit cards
is guilty  [emphasis added]. The
    offence is established by proof that the accused knew the device was adapted or
    intended for use in the forging or falsifying of credit cards and that the
    accused sold the device. There is no requirement for the Crown to prove the
    device was, in fact, used or intended by the purchaser to be used for such a
    purpose.

[234]

The language of
    s. 342.01(1) confirms this interpretation.  At the time of trial, its relevant
    portions stated:
[13]

342.01(1) Every person who, without lawful justification or
    excuse,

(a) makes or repairs,

(b) buys or sells,

(c) exports from or imports into
    Canada, or

(d) possesses

any instrument, device, apparatus, material or thing that the
    person knows has been used or knows is adapted or intended for use in forging
    or falsifying credit cards is guilty of an indictable offence and liable to
    imprisonment for a term not exceeding ten years, or is guilty of an offence
    punishable on summary conviction.

[235]

Several themes
    emerge from this language.

[236]

First, the
    offences created by s. 342.01(1) are preliminary and preventative in nature.
    They are designed to capture an open-ended scope of conduct in order to thwart
    the commission of the crime of forging or falsifying credit cards  a crime
    which, as noted earlier in these reasons, is harmful and costly to Canadian
    society as a whole.

[237]

For that reason,
    the reach of the section is intended to be broad.  It extends to a wide variety
    of objects (instruments, devices, apparatuses, materials and things), and to
    a wide range of activities (making, repairing, buying, selling, exporting,
    importing, or possessing those objects).  In addition, the mental element for
    the offences is multi-faceted.  It encompasses knowledge that the items either:
    (i) have been used; (ii) have been adapted for use; or (iii) are intended for
    use, in forging or falsifying credit cards.

[238]

Second, the
    section must be interpreted in a way that is consistent with its broad purpose
    and broad language.  This approach to interpretation militates against the
    meaning that Beauchamp seeks to apply to the words intended for use.  Beauchamp
    was charged with selling materials that he knew were intended for use in
    forging credit cards.  He says intended for use must mean intended by the
    purchaser to be used for that purpose.  We disagree.  It would be inconsistent
    with the sections broad, preventative purpose to require proof of a third
    partys intention to prove the offences mental element. In our view, the words
    intended
for use
 refer to the intention of the seller, not to the
    intention of a third party
to use
the item for the prohibited
    purpose.

[239]

Third, the way
    in which words are used within the section creating the offence must be given a
    cohesive meaning.  Importing the intention of a third party into the intended
    for use mental element where the offence alleged is selling (or buying) is
    inconsistent with the elements of the offence when committed in the other ways
    listed in s. 342.01(1). For example, it is an offence to make any of the targeted
    items knowing that they are intended for use in forging credit cards.  It is
    similarly an offence to repair or to possess them with the same knowledge.
    In those circumstances, the offence can be completed without the involvement of
    any third party.  It makes no sense to require proof of a third partys intention
    to establish the offences mental element in some circumstances but not in
    others.

[240]

The decision of
    the Supreme Court of Canada in
Irwin v. The Queen
, [1968] S.C.R. 462,
    involved a similar argument, albeit in a different context.  Irwin sold drugs
    to an undercover officer, believing the officer intended to use them to procure
    a miscarriage.  The undercover officer had no intention of using the drug.  Irwin
    was nonetheless convicted of the offence of suppl[ying]  a drug or other
    noxious thing
knowing that it [was] intended to be used
or employed
    to procure a miscarriage, contrary to what was then s. 238 of the
Criminal
    Code
: at p. 464.

[241]

Speaking for the
    Court, Ritchie J. held that the words intended to be used related to the
    intention of the supplier and not to that of the person supplied.
    Significantly, in arriving at this conclusion, he expressly rejected an older
    authority from the Supreme Court of Victoria that had adopted the opposite
    interpretation of the same language:
Reg. v. Hyland
(1898), 24 Vict.
    L.R. 101.  Instead, Ritchie J. adopted the approach taken by an earlier line of
    English authorities holding that only the intention of the accused person  and
    not that of anyone else  is necessary to constitute the offence: see
R. v.
    Hillman
(1863), 9 Cox C.C. 386, 169 E.R. 1424; see also
R. v. Titley
(1880), 14 Cox C.C. 502.

[242]

Irwin
is instructive, in our view.  Section 342.01(1) has a similar preventative
    objective to that of the former s. 238 of the
Code
and the language of
    both is deliberately broad to accomplish that objective.  Selling a device
    with the knowledge that it is intended for use in forging credit cards, as
    prohibited by s. 342.01(1), is little different than supplying a drug or
    noxious substance knowing that [the drug] is intended to be used or employed to
    procure a miscarriage, in the words of the former s. 238.  It is the intention
    of the seller and not that of the purchaser that is relevant.

[243]

Beauchamp was
    properly convicted on Count 9.

D.

Additional Grounds of Appeal Raised by
    Shanghavi

[244]

Shanghavi appeals
    from his convictions on Counts 19 and 21.  Both counts alleged that he was in
    possession of devices (mini data loggers #3207 and #3225) knowing they were
    intended for use in forging credit cards.

[245]

The main complaint
    with respect to Count 21 is that the trial judge improperly inferred from
    Shanghavis silence during certain communications with Cattral that Shanghavi had
    admitted to possessing the data loggers in question.

[246]

The trial judge
    did find that Shanghavi  without expressly saying so  had adopted, as an admission,
    his ownership and possession of the two data loggers in issue during a series
    of MSN chats between him and Cattral that were captured in the wiretap
    intercepts.  At paras. 115 and 120 of his reasons, he made the following
    findings:

In the conversations intercepted on May 17, 2004, Cattral tells
    Shanghavi to find out where all his data loggers are that went out before
    December, 2003; Cattral also tells Shanghavi to locate #07 and 37.  I infer
    that these are two data loggers with serial numbers 3207 and 3237 which were
    sold by Canadian Barcode to Shylok [Shanghavis alias] on November 18, 2003
    according to Cattrals business records in the SSS Database.  Shanghavi advised
    Cattral that he has got the 3207 right here.  This evidence is contained in
    intercept #197 and in the SSS Database at lines 2431 and 2432.

I find that when interceptions #192C, 193, 194, 195, 196, 197,
    198, 199 are read together in context, that Shanghavi has adopted as an
    admission of the following facts as submitted by the Crown:

a) That he bought data loggers 3225, 3207, 3237 from
    Canadian Barcode;

b) That the data loggers were being used in criminal
    circumstances that could result in their being seized by police.  In fact, he
    is aware that data logger 3225 had been seized by the R.C.M.P.;

c) He wanted Cattral to withhold information from the police
    that he had a backdoor password by using the word DONT! in his conversation
    with Cattral.

[247]

We see no error
    in these findings.  The trial judge applied the correct legal principles: an
    admission may be implied from a partys silence in the face of statements made
    by others in circumstances where the party could reasonably have been expected
    to respond
: R. v. Robinson
, 2014 ONCA 63, 118 O.R. (3d) 581, at paras.
    48-58;
Regina v. Dubois
(1986), 27 C.C.C. (3d) 325 (Ont. C.A.);
Regina
    v. Baron and Wertman
(1976), 14 O.R. (2d) 173 (C.A.).  Martin J.A. put it
    this way, in
Baron and Wertman
, at p. 187:

The silence of a party will render statements made in his
    presence evidence against him of their truth if the circumstances are such that
    he could reasonably have been expected to have replied to them.  Silence in
    such circumstances permits an inference of assent. [Citations omitted.]

[248]

Morden J.A.
    adopted the same principle in
Dubois
, at p. 341:

The rule bearing on this issue is that a statement made by
    another in the presence of the accused is only admissible against him in
    circumstances where he expressly adopts the statement
or where by his
    words, action, conduct or demeanour he may be taken to have inferentially
    adopted it
.
[Emphasis added; citations omitted.]

[249]

The trial judge
    conducted a very detailed review of the relevant wiretap intercepts, and other
    evidence.  The inferences he drew and the findings of fact he made with respect
    to the admissions were open to him on the evidence, and we see no basis for
    interfering with them.

[250]

Shanghavi makes
    two additional submissions with respect to Counts 19 and 21.  He argues, first,
    that the trial judge erred in placing reliance on Canadian Barcodes SSS
    Database in making the above findings and, second, that the trial judge erred
    in his approach to the in furtherance requirement of the co-conspirators
    exception to the hearsay rule.

[251]

The trial judge
    had earlier ruled that the contents of the SSS Database were inadmissible as
    against Shanghavi, because it was not his database and he did not have it in
    his possession.  We agree that there are aspects of the trial judges findings
    referred to above in which he appears to have relied on evidence that could
    have come from the SSS Database, particularly in connection with the finding
    that Canadian Barcode had sold the data loggers to Shanghavi.  We do not find this
    error material, however.  Counts 19 and 21 did not charge Shanghavi with buying
    the data loggers; they alleged that he had them in his possession.  Apart from
    the SSS Database, there was overwhelming evidence in the intercepts, and
    elsewhere, that Shanghavi had the devices in his possession at the pertinent
    times.  In any event, there was other evidence in the wiretap intercepts from
    which the trial judge could  as he did in para. 120  draw the inference that
    Shanghavi had bought the data loggers from Canadian Barcode.

[252]

Finally, we do
    not think Shanghavis argument regarding the co-conspirators exception to the
    hearsay rule assists him.  The argument appears to be focussed on the following
    statement by the trial judge at para. 210 of his reasons, where he summarized
    his findings in support of Shanghavis conviction on Count 19 (possession of
    data logger #3207):

I find that Mr. Shanghavis statements in intercept #197, made
    in the context of trying to locate his data loggers constitutes an admission.
    Minutes after the conversation in which he was attempting to locate the two
    data loggers, #07 and #37, Shanghavi stated got 3207 right here. I find that
    this statement was made by Shanghavi to Cattral in the context of the
    conversation with Cattral, which I previously held to be admissible under the
    co-conspirators exception to the hearsay rule, and even if only admitted for
    the narrative is an admission by Shanghavi that he has the data logger 3207 in
    his possession at that time. The discussion concerning data logger #3207 ended
    because Mr. Shanghavi discovered that it was in his possession.

[253]

Shanghavi
    submits that the trial judge was required to conduct a separate in furtherance
    of the conspiracy analysis in relying upon the conversation with Cattral.  We
    disagree.  The trial judge had previously conducted a careful
Carter
[14]
inquiry into the admissibility of the wiretap interceptions as against the
    appellants.  He found that there was a conspiracy between Cattral, Brunet,
    Beauchamp
and Shanghavi
to pursue the common design and plan to commit
    credit card fraud, and that the sale of the devices to Shanghavi was but one
    step in the process which contemplated several further steps to commit the
    offence of credit card fraud.  The trial judge referred as well to Cattrals
    decision to tip off Shanghavi that the police had retrieved data logger #3225 to
    assist Shanghavis commission of fraud after purchasing the devices.

[254]

In any event,
    the wiretap communications that took place directly between Cattral and
    Shanghavi did not require reliance on the co-conspirators exception rule for their
    admissibility.  Shanghavi made a direct admission  got 3207 right here  during
    one of the MSN exchanges on May 17, 2004, immediately after a discussion about
    locating data loggers #07 and #37.  That alone provided a sufficient basis for
    the trial judges inference and finding that Shanghavi had the #3207 data
    logger  the subject matter of Count 19  in his possession.

[255]

We do not give
    effect to this ground of appeal.

IV.

DISPOSITION
    OF CONVICTION APPEALS

[256]

For the
    foregoing reasons, the conviction appeals are dismissed.

ANALYSIS  THE SENTENCE APPEALS

[257]

All appellants
    appeal against their sentences, on various grounds.  We begin our analysis of
    the issues raised on the sentence appeals by first considering some of the
    sentencing principles specific to s. 467 offences.

I.

Relevant Sentencing
    Principles  Section 467

[258]

For convenience,
    we again set out s. 467.12(1):

Every person who commits an indictable offence under this or
    any other Act of Parliament for the benefit of, at the direction of, or in
    association with, a criminal organization is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding fourteen years.

[259]

As discussed
    earlier in these reasons, the broad language employed in s. 467 confirms the
    criminal organization provisions are intended to encompass a wide array of
    co-ordinated serious crimes, including credit card fraud.  The section takes
    aim at the enhanced harm to society occasioned by a variety of groups who
    knowingly and collectively engage in criminal activity of a serious nature.

[260]

In
R. v.
    Mastop
, 2013 BCCA 494, 303 C.C.C. (3d) 411, at para. 46, leave to appeal
    to S.C.C. refused, [2014] S.C.C.A. No. 23, the British Columbia Court of Appeal
    described the overall purpose of s. 467 in this fashion:

The overall objective of the criminal organization legislation
    is to protect society from the wide-ranging effects, violent and otherwise, of
    criminals who work together as a group, as well as to prevent and deter
    organized criminal activities.  Offenders who regularly commit crimes together
    are a greater menace to society than an individual offender working alone.

[261]

We endorse these
    comments.  Protection of the public, deterrence and denunciation are the
    primary sentencing objectives for s. 467 offences.  We also agree with the
    Crowns submission that the achievement of these objectives depends on the
    prospect of significant penal sanctions for organized criminal conduct.

[262]

As a consequence
    of the wide sweep of acts targeted by the criminal organization provisions,
    there is no established range of sentence for s. 467 offences:
Mastop
,
    at para. 68.  This recognizes that s. 467, including s. 467.12(1), can apply to
    any conduct, including otherwise lawful conduct, that furthers the activities
    of a criminal organization.

[263]

Parliament has
    underscored the seriousness of s. 467 offences in three important ways relevant
    to sentencing.

[264]

First, s. 467.14
    of the
Criminal Code
provides that sentences for offences under ss.
    467.11, 467.12 or 467.13 shall be served consecutively to any other punishment
    imposed on the offender for an offence arising out of the same event or series
    of events and to any other sentence to which the offender is subject at the
    time the s. 467 sentence is imposed.

[265]

Second, under s.
    743.6(1.2) of the
Criminal Code
, a presumption in favour of parole
    ineligibility is triggered when an offender receives a sentence of imprisonment
    of two years or more for a s. 467 conviction.  In these circumstances, the
    offender must serve half of his or her sentence or ten years, whichever is
    less, before being released on full parole, unless the court orders otherwise
    based on the test specified in s. 743.6(1.2).

[266]

The statutory
    test for granting relief from parole ineligibility reveals Parliaments
    intention regarding the objectives of sentencing for a s. 467 offence.  Under
    s. 743.6(1.2), delayed eligibility for full parole may be avoided only where:

the court is satisfied
, having regard to the
    circumstances of the commission of the offence and the character and
    circumstances of the offender,
that the expression of societys
    denunciation of the offence and the objectives of specific and general
    deterrence would be adequately served

by a period of parole
    ineligibility determined in accordance with the

Corrections and
    Conditional Release Act
.  [Emphasis added.]

[267]

Thus, s.
    743.6(1.2) underscores the seriousness of a s. 467 offence and affirms the goal
    of fashioning a sentence that signals societys condemnation of the offence and
    that also achieves specific and general deterrence.

[268]

Third, by reason
    of s. 718.2(a)(iv) of the
Criminal Code
, evidence that an offence was
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization is a statutory aggravating factor on sentencing.

[269]

We approach
    Cattrals, Brunets and Beauchamps appeals from the sentences imposed on their
    s. 467.12(1) convictions with these important principles at the forefront.

II.

DISCUSSION

A.

CATTRALS SENTENCE
    APPEAL

[270]

Cattral was
    convicted of five counts of buying and selling devices knowing that they were
    intended for use in credit card fraud (the MIR38 and KT100), four counts of
    fraudulent possession of credit card data, and one count of obstructing a
    police officer in relation to the investigation into the seized data logger
    #3225.  Cattral, together with Brunet and Beauchamp, was also convicted of one
    count of committing the indictable offence of selling devices used to forge
    credit cards for the benefit of a criminal organization, contrary to s.
    467.12(1).  His conviction under s. 467.11(1)  participating in or
    contributing to the activities of a criminal organization  was stayed in
    accordance with
Kienapple
:
R. v. Beauchamp, Brunet, Cattral and
    Shanghavi
, 2010 ONSC 1707.
[15]

[271]

Cattral was
    sentenced to a global sentence of seven years imprisonment, less eight months
    credit for approximately four and one-half months pre-sentence custody.  He
    received sentences totalling four years imprisonment on his non-criminal organization
    convictions, plus six months, concurrent, on his obstruction of justice
    conviction and an additional three years imprisonment, consecutive, on his
    criminal organization conviction under s. 467.12(1).

[272]

In addition,
    pursuant to s. 743.6(1.2) of the
Criminal Code
, the trial judge
    ordered Cattral to serve half of his sentence on his s. 467.12(1) conviction
    before becoming eligible for full parole.  He also imposed a fine of $40,000 in
    lieu of forfeiture, payable within three years of the date of sentence, failing
    which an additional 12-months in jail, consecutive, would apply.  A DNA order
    was also made.

[273]

In his factum,
    Cattral raises three grounds in support of his sentence appeal.  He argues that
    the trial judge erred: (i) by treating his conduct that benefitted a criminal
    organization as an aggravating factor in respect of his non-criminal
    organization offences and also imposing a three year consecutive sentence for
    his s. 467.12(1) conviction, thereby allegedly penalizing [Cattral] twice for
    the same conduct; (ii) by treating Cattrals assistance to law enforcement
    agencies as an aggravating, rather than a mitigating, factor; and (iii) by
    failing to apply the sentencing principles of parity and totality to his
    seven-year global sentence in a meaningful way, thereby imposing a manifestly
    unfit sentence.

(1)

Parity and Totality

[274]

Cattral, Brunet
    and Beauchamp all raise parity arguments in support of their sentence appeals.
    In Cattrals case, his submissions during the appeal hearing focused on his
    parity and totality argument.  Cattral submits that his global sentence of
    seven years in jail, together with reduced parole eligibility, is so
    disproportionate to the sentences imposed on Persaud and SST as to offend both
    the parity and totality principles of sentencing.  In particular, he contends
    that the three-year sentence of imprisonment on his s. 467.12(1) conviction is
    disproportionate to the sentences imposed on SST and Persaud, and that a
    one-year jail sentence, consecutive to his sentences on his other convictions,
    is appropriate.

[275]

We disagree.
    For reasons we will explain, we conclude that the parity and totality
    principles of sentencing do not compel a reduction in the overall length of
    Cattrals sentence and that his global sentence is fit.

(a)

The Parity Issue

[276]

First, the issue
    of parity.  The parity principle is codified in s. 718.2(b) of the
Criminal
    Code
.  That provision directs that a sentence should be similar to
    sentences imposed on similar offenders for similar offences committed in
    similar circumstances.  The principle of parity of sentences is intended to
    preserve fairness by avoiding disparate sentences where similar facts relating
    to the offence and offender would suggest like sentences:
R. v. Rawn
,
    2012 ONCA 487, 294 O.A.C. 261, at para. 18; see also
R. v. Mann
, 2010
    ONCA 342, 261 O.A.C. 379, at para. 16.

[277]

That said, the
    parity principle does not require equal or identical sentences for similarly
    situated offenders, nor is it to be applied in a rigid fashion.  Rather, parity
    is only one of several principles that must guide a sentencing judges crafting
    of a fit sentence:
R. v. Chambers
, 2013 ONCA 680, 311 O.A.C. 307, at
    para. 31.  In
R. v. Issa (T.)
(1992), 57 O.A.C. 253, at para. 9, leave
    to appeal to S.C.C. refused, [1992] S.C.C.A. No. 476, this court explained:

So long as sentencing remains an individual process there may
    be sentences meted out to offenders for participation in the same offence which
    are justifiably disparate.  [We] think that Clayton Rubys statement in
    Sentencing (3rd Ed. 1987), at p. 29 is correct, that the rule against
    unreasonable disparity in sentencing does not require equal sentences, but
    only understandable sentences when examined together. [Citations omitted.]

See also
R. v. M. (C.A.)
, [1996] 1 S.C.R.
    500, at para. 92;
R. v. Flowers
, 2010 ONCA 129, 258 O.A.C. 97, at
    para. 10.

[278]

Thus, disparate
    sentences for different offenders for the same offence do not violate the
    parity principle, so long as the sentences are warranted by all the
    circumstances:
R. v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para.
    36;
R. v. Courtney
, 2012 ONCA 478, 294 O.A.C. 346, at para. 4.

[279]

Further, even if
    a similarly situated offender receives a somewhat lighter sentence for the same
    offence, the offender who receives the higher sentence is not automatically
    entitled to the benefit of the lower sentence received by his or her
    co-offender:
Flowers
, at para. 10.

[280]

In each case, a
    reviewing court should only intervene to minimize disparity in sentences where
    the sentence in question is in substantial and marked departure from the
    sentences customarily imposed for similar offenders committing similar crimes:
M. (C.A.)
, at para. 92.

[281]

Applying these
    principles to Cattrals case, we see little parallel between his circumstances
    and those of Persaud and SST.

[282]

Persaud pleaded
    guilty to 20 credit card fraud related offences and received an effective
    sentence of four years imprisonment, on a joint submission.  He had 67 prior
    criminal convictions, 33 of which related to credit card offences.  At trial, he
    gave evidence for the Crown.  SST, the designer and manufacturer of the
    skimming devices sold by Canadian Barcode, received a fine of $30,000 after
    entering a corporate plea of guilty.  As we have said, the charges against
    SSTs principals, Gehmlich and Winslow, were withdrawn and Gehmlich testified
    at trial for the Crown.

[283]

The trial judge
    addressed, and rejected, Cattrals argument that the principles of parity and
    proportionality should operate to reduce his sentences in light of the
    sentences imposed on Persaud and SST.  In our view, he was correct to do so.

[284]

Persaud and SST,
    unlike Cattral, entered guilty pleas, thus avoiding a complex and lengthy trial
    and attracting significant mitigation credit on sentencing.  As the trial judge
    aptly observed, at para. 31: Even if Persaud and SSTs sentences were somewhat
    light, Cattral  [is] not automatically entitled to benefit from Persaud and
    SSTs favourable plea arrangement.

[285]

Moreover,
    Persaud and SSTs guilty pleas contemplated co-operation with the Crown at
    trial.  Although Persaud and Gehmlich testified reluctantly, this does not
    alter the fact that their trial evidence formed an important plank in the
    Crowns case.

[286]

Apart from
    Persaud and SSTs admissions of guilt, other distinguishing features place Cattral
    in a materially different sentencing context.

[287]

First, and
    importantly, Persaud and SST were not convicted of a s. 467 criminal
    organization offence, where the sentence must be served consecutively.

[288]

Earlier in these
    reasons, we underscored the gravity of a s. 467 offence.  The seriousness of
    co-ordinated criminal activity should not be gainsaid.  In the context of
    credit card fraud that benefits a criminal organization, the harm potentially
    occasioned by the crime is far-reaching and of considerable magnitude,
    implicating numerous victims.  The trial judge put it this way, at para. 2 of
    his sentencing reasons: Payment card fraud adversely affects both financial
    institutions and members of the public, and [it] is responsible for losses of
    approximately $500 million each year to the payment card industry in Canada.
    This harm is amplified when the fraud in question is the product of organized
    and co-ordinated criminal activity.

[289]

Accordingly, the
    fact that Persaud and SST were not found guilty of a s. 467 offence materially
    distinguishes their moral blameworthiness from that of Cattral.

[290]

Second, on the
    trial judges findings, Cattral was the mastermind of serious ongoing credit
    and debit card frauds effected by the Canadian Barcode Group.  He was the face
    of the criminal operation and functioned as the organizations technical
    expert.  He also developed the RenCode software program that enabled the
    forging of credit cards, and he provided expert technical assistance and advice
    to customers and suppliers like Persaud and SST.  Unlike Persaud, who was a
    lower-level operative and customer of Canadian Barcode, Cattral functioned at
    the upper echelon of the hierarchy of a criminal organization involved in a sophisticated
    and highly damaging type of crime.

[291]

Third, Cattrals
    criminal record included convictions in 2000 for possession of credit card data
    and unauthorized use of data, plus assault with a weapon.

[292]

Cattrals global
    seven-year sentence thus reflects his crucial and directing role in the
    criminal organization, his antecedents, and his lack of responsibility and
    remorse.  On these grounds, Cattral was differently situated from Persaud and
    SST.

(b)

The Totality Issue

[293]

We also reject
    the contention that the totality principle mandates a reduction in Cattrals
    seven-year sentence.

[294]

Clayton Ruby
    describes the totality principle in his treatise,
Sentencing
, 8th ed.
    (Markham: LexisNexis Canada Inc., 2012), at p. 50, in these terms:

The purpose is to ensure that a series of sentences, each
    properly imposed in relation to the offence to which it relates, is in
    aggregate just and appropriate.  A cumulative sentence may offend the
    totality principle if it is substantially above the normal level of a sentence
    for the most serious of the individual offences involved, or if it is a
    crushing sentence not in keeping with the offenders record and prospects.

[295]

In
R. v.
    Johnson
, 2012 ONCA 339, 291 O.A.C. 350, at para. 18, this Court explained
    the operation of the totality principle:

In short, a combined sentence must not be unduly long or harsh
    in the sense that its impact simply exceeds the gravity of the offences in
    question or the overall culpability of the offender.  The overall length of the
    custodial period imposed must still relate to and reflect the variety of
    sentencing goals, including denunciation, deterrence (specific and general),
    rehabilitation, the need to separate offenders from society where necessary,
    and the general imperative of promoting respect for the law and the maintenance
    of a just, peaceful and safe society:
Criminal Code
, s. 718.  In this
    regard, the authorities recognize that where the ultimate effect of the
    combined sentences is to deprive the offender of any hope of release or
    rehabilitation, the functional value of these sentencing principles meets the
    point of diminishing returns.  [Citations omitted.]

[296]

In this case,
    there is no suggestion that the sentences imposed for Cattrals non-criminal
    organization offences are unfit.  The authorities reviewed by the trial judge
    in relation to other multiple-count, serious credit card fraud cases confirm
    that Cattrals four-year custodial term was well within the range of
    appropriate sentences.

[297]

Moreover, in
    fashioning an appropriate sentence for Cattrals s. 467.12(1) offence, the
    trial judge expressly considered the totality principle.  Near the outset of
    his analysis of the principles of sentencing applicable in Cattrals case, the
    trial judge stated, at para. 23: The principle of proportionality and the
    totality of the sentence to be imposed are also applicable principles on this
    sentencing.

[298]

Later in his
    reasons, the trial judge returned to the issue of totality.  He held, at paras.
    44-46:

The applicable principle [
sic
] of sentencing which
    applies to Cattral is denunciation and specific and general deterrence.

I agree with Cattrals submission that Canadian Barcodes
    conduct was not as serious as that of a violent biker gang as it was not
    involved in any violent activities [
sic
] however, credit card fraud is
    a serious offence.  A sentence of three (3) years imprisonment on the criminal
    organization conviction when added to the sentence imposed for the underlying
    credit card fraud related [convictions] would result in a total effective
    sentence of seven (7) years imprisonment.
I find the totality of this
    sentence is sufficient to achieve the objectives of denunciation and specific
    [and] general deterrence in these circumstances and to protect members of the
    public and the well-being of our financial system
.

I therefore find in the circumstances of this case, given that
    Cattral was the mastermind of the organization, the sophistication of the
    operation, Cattrals high level of knowledge and expertise, having a PhD in computer
    science, the potential for huge losses to Canadian financial institutions from
    the organized sale of devices intended to be used to forge credit cards, the
    lack of violence, that a further term of imprisonment of three (3) years
    consecutive, should be imposed on Cattral for the conviction on Count #13.
    [Emphasis added.]

[299]

In light of
    these comments, we do not accept Cattrals claim that the trial judge failed to
    address totality meaningfully when crafting an appropriate sentence.

[300]

We also
    specifically reject any suggestion that the three-year jail sentence imposed on
    Cattrals s. 467.12(1) offence is unfit.  While there is no established range
    of sentence for criminal organization offences, provincial appellate courts
    have upheld similar sentences for s. 467 offences.  See for example,
Mastop
(two and one-half years imprisonment for a s. 467.11 conviction);
R. v.
    Lindsay
, 2009 ONCA 532, 97 O.R. (3d) 567 (four years and four months
    imprisonment for extortion and a s. 467.12(1) conviction).

[301]

Finally, at the
    sentencing hearing, the Crown sought a total sentence of nine years in jail for
    Cattral  five years on his s. 467.12(1) offence and four years on his various
    credit card fraud related and obstruction of justice offences.  Defence counsel
    urged a total sentence of four years imprisonment, on all charges, with credit
    on a 2:1 basis for pre-sentence custody.

[302]

The trial judge
    concluded, in all the circumstances, that a global sentence at the approximate
    mid-point of the sentences urged by counsel  seven years in jail  met the
    objectives of denunciation, deterrence and protection of the public.

[303]

We see no
    reversible error in this conclusion.  In our view, Cattrals global sentence
    appropriately recognized the seriousness of his offences and the magnitude of
    his culpability.

[304]

Accordingly,
    this ground of appeal fails.

(2)

Other Grounds

[305]

Although they
    were not the focus of his oral submissions before this court, it is appropriate
    to comment briefly on Cattrals remaining grounds of appeal.

[306]

First, Cattral
    argues that the trial judge erred by treating Cattrals provision of assistance
    to law enforcement authorities as an aggravating, rather than a mitigating,
    factor on sentencing.  Cattral contends that the trial judge adopted a jaded
    history of his assistance to police, leading to the improper characterization
    of this assistance as an aggravating circumstance.

[307]

We disagree.

[308]

The trial judge
    accepted that Cattral is a computer expert, as evidenced both by his doctorate
    degree in computer science and his role as a technical consultant to various
    police forces.  He found as a fact, at para. 26, that Cattrals provision of
    assistance to the police served as a way of gathering information about what
    devices the police had discovered in the field and about what the police knew
    about the devices.

[309]

The evidentiary
    record overwhelmingly supports these findings.  The evidence at trial
    established that Cattral exploited the information gleaned through his
    consulting services to the police to perpetuate Canadian Barcodes criminal
    activities.  Based on insider information learned from the police, he warned
    customers, including Shanghavi and Persaud, of police interest in or
    attentiveness to their fraudulent activities.  Recall, for example, that he
    alerted Shanghavi that one of his devices, data logger #3225, had been seized
    by the police and offered Shanghavi advice on how to avoid detection.  He also
    took active steps to conceal the identity of Canadian Barcodes customers and
    misled the police in their investigation, leading to his conviction for
    obstruction of justice.

[310]

In light of this
    evidence, it was open to the trial judge to find Cattral had an ulterior motive
    in assisting the police that furthered his criminal activities and those of the
    Canadian Barcode Group.

[311]

Nor do we see
    any error in the trial judges treatment of this evidence as an aggravating
    factor on sentencing.  Cattral capitalized on his role as a police consultant
    to facilitate his crimes and those of his associates and to avoid detection of
    those activities by the authorities.  This was a pertinent and aggravating
    circumstance on sentencing.

[312]

Finally, Cattral
    contends that the trial judge engaged in impermissible double-counting by
    treating the conduct underlying his s. 467.12(1) conviction as an aggravating
    factor when sentencing him for his non-criminal organization offences, while
    also imposing a three-year consecutive sentence for the s. 467.12(1) offence
    itself.

[313]

Again, we
    disagree.  We will explain our reasons for rejecting this double-counting
    complaint when addressing Brunets sentence appeal, on which essentially the
    same issue arises.

B.

Brunets Sentence Appeal

[314]

Like Cattral,
    Brunet was convicted of five counts of buying and selling devices knowing that
    they were intended for use in credit card fraud and committing the indictable
    offence of selling devices used to forge credit cards for the benefit of a
    criminal organization.  She was also convicted of one count each of conspiring
    to commit the indictable offence of forging credit cards and breaching a
    condition of her bail by communicating with a person known to have a criminal
    record.

[315]

At trial, the
    Crown sought a global sentence of six years imprisonment (three years on the
    credit card fraud related offences and the breach of recognizance, and three
    years on the criminal organization offence).  The defence argued for a
    conditional sentence of 12 to 15 months imprisonment, together with three
    years probation.

[316]

The trial judge
    sentenced Brunet to four years and one-month imprisonment, concurrent, on all
    counts, as follows: two years imprisonment on Brunets credit card fraud
    related convictions, plus one month, concurrent, on the breach of recognizance
    conviction, and two years imprisonment on Brunets s. 467.12(1) conviction.
    As in Cattrals case, he also ordered that Brunet: (i) serve half of her s.
    467.12(1) sentence prior to being eligible for full parole; (ii) pay a $40,000
    fine in lieu of forfeiture within three years from the date of sentence,
    failing which a further 12-month jail term, consecutive, would apply; and (iii)
    provide a DNA sample.

[317]

Brunet raises
    three grounds in support of her sentence appeal.  First, like Cattral, she
    advances a double-counting argument.  She maintains the trial judge erred in
    principle by treating the conduct underlying her s. 467.12(1) conviction as an
    aggravating factor in respect of her non-criminal organization offences and
    also imposing a two-year jail term, consecutive, for the s. 467.12(1)
    conviction.

[318]

Second, Brunet
    submits the trial judge failed to consider and apply properly the principles of
    restraint and parity when sentencing Brunet to her first custodial sentence.

[319]

Third, Brunet
    maintains the trial judge did not provide adequate reasons in support of his
    decision to delay Brunets parole eligibility under s. 743.6(1.2).

[320]

In light of
    these errors, Brunet says her global sentence of four years imprisonment was excessive.
    Before this court, she submits that a sentence of 14 to 15 months in jail
    (eight months on the non-criminal organization convictions and approximately
    six months on the s. 467.12(1) conviction) is appropriate.  Brunet does not
    challenge the trial judges ruling that a conditional sentence was unavailable
    in all the circumstances.

[321]

We do not accept
    these arguments.  For the following reasons, we regard Brunets global
    four-year sentence of imprisonment as fit and amply justified in all the
    circumstances.

(1)

The Double-Counting Issue

[322]

We see no merit
    to the double-counting complaint advanced by Brunet and Cattral.

[323]

Where, as here,
    there is evidence before a sentencing judge that an offence was committed for
    the benefit of a criminal organization, Parliament has decreed such evidence
    shall be considered as an aggravating circumstance on sentencing:
Criminal
    Code,
s. 718.2(a)(iv).  By reason of s. 467.14 of the
Criminal Code
,
    Parliament has also directed that a s. 467.12 sentence must be served consecutively
    to any other punishment imposed on the offender for an offence arising out of
    the same event or series of events and to any other sentence to which the
    offender is subject at the time when the s. 467 sentence is imposed.

[324]

Brunet
    essentially invites this court to read s. 718.2(a)(iv) as applying only where
    no s. 467 conviction has occurred.  In other words, on Brunets interpretation
    of the interplay between ss. 718.2(a)(iv) and 467.14, evidence of conduct
    supporting a s. 467.12(1) offence is an aggravating circumstance on sentencing
    only in the absence of a s. 467 conviction.

[325]

This
    interpretation must be rejected.  There is nothing in the language of
    s. 718.2(a)(iv) to support this narrow construction.  Brunet was unable to
    point to any authority or principled rationale for confining the application of
    s. 718.2(a)(iv) to cases involving only non-criminal organization offences.
    And s. 467.14 is clearly not restricted to situations where only a s. 467
    conviction is at issue: s. 467.14 specifically applies when convictions in
    addition to a single s. 467 conviction are in play.

[326]

In our view, a
    plain reading of s. 718.2(a)(iv) confirms that evidence an offence was
    committed in association with or for the benefit of a criminal organization is
    an aggravating factor on sentencing for non-criminal organization offences,
    even when the offender is also convicted of a s. 467 offence.  Like any other
    statutory aggravating circumstance, it is but one of many factors to consider
    when fashioning an appropriate sentence.

[327]

Further, the
    application of both ss. 718(2)(a)(iv) and 467.14 in a given case is consistent
    with the approach to sentencing dictated under the
Criminal Code
for
    other offences.  For example, breach of trust is a criminal offence under
    ss. 122 and 336 of the
Criminal Code
, while abuse of a position
    of trust or authority in relation to a victim is a deemed aggravating factor on
    sentencing under s. 718.2(a)(iii).  It is also consistent with
Lindsay
,
    where evidence that extortion was committed in association with a criminal
    organization was an aggravating factor on sentencing for the extortion
    conviction, together with sentencing for a s. 467 offence.

[328]

Finally, nothing
    in the trial judges sentencing reasons suggests he overemphasized the s.
    718(2)(a)(iv) aggravating factor in relation to Brunet.  In determining a fit
    sentence, the trial judge emphasized the principles of rehabilitation,
    denunciation and deterrence as key sentencing considerations.  He listed
    Brunets role as part of a criminal organization that sold devices to forge
    credit cards as but one of seven relevant aggravating factors.  He also
    identified six mitigating factors, and went on to conclude that both
    proportionality and rehabilitation were pertinent considerations on sentencing.

[329]

We therefore see
    no reversible error in the trial judges treatment of the s. 718(2)(a)(iv)
    statutory aggravating factor, nor in his rulings under s. 467.14 that Cattrals
    and Brunets sentences on their criminal organization convictions be served
    consecutively.

(2)

Restraint and Parity

[330]

We also reject
    Brunets submission that the trial judge erred by failing to consider and apply
    properly the principles of restraint and parity in the circumstances of her
    case.

[331]

There are two
    branches to this submission.  First, Brunet argues that if she succeeds on her
    conviction appeal in respect of Count 13 (the s. 467.12(1) conviction) or Count
    6 (conspiracy with Persaud to commit the offence of forging credit cards) and
    Count 15 (selling a device, the KT100, knowing it was intended for use in
    forging credit cards), her global sentence should be reduced.  We have already
    rejected Brunets appeal from these convictions.  It follows that this branch
    of Brunets restraint and parity argument is moot.

[332]

Second, Brunet
    contends that her global sentence of four years imprisonment is
    disproportionate to the sentences imposed on Persaud (four years in jail
    following guilty pleas) and Beauchamp (two years and nine months in jail for an
    offender with a lengthy criminal record).  Brunet also argues that the trial
    judge failed to take account of the conditions and length of her bail,
    notwithstanding that Brunet has only a minor prior criminal record and faced a
    custodial sentence for the first time.  Based on these factors, Brunet
    maintains her global sentence is excessive and should be significantly
    reduced.

[333]

This branch of
    Brunets restraint and parity argument also fails.  Neither Persaud nor
    Beauchamp was convicted of a s. 467 offence.  We have emphasized the critical
    importance of this distinguishing feature earlier in these reasons.

[334]

Moreover, the
    trial judges sentencing reasons belie the suggestion that he failed to
    consider and properly apply the restraint and parity principles.  To the
    contrary, in our view, parity and restraint considerations figured prominently
    in the trial judges sentencing analysis.

[335]

The trial judge
    explicitly recognized Brunets invocation of these principles, together with
    her associated argument that a first jail sentence should be as short as
    possible: at para. 58.  He rejected Persaud as a fit comparator to Brunet given
    that Persaud pleaded guilty to numerous credit card fraud offences.  In
    contrast, it was not until the end of trial that Brunet pleaded guilty to any
    offences and, even then, she only pleaded to two counts of fraud under s.
    342.01 of the
Criminal Code
.  The weight to be accorded to this
    distinguishing factor was a matter for the trial judge.

[336]

The trial judge
    was mindful of the fact that, unlike Persaud and Beauchamp, Brunet has a
    limited criminal record.  He identified Brunets limited criminal antecedents
    as a mitigating factor and, based on this factor, held that both
    proportionality and rehabilitation were germane to her sentencing.  His
    approach to Brunets criminal record thus operated to her benefit.

[337]

Further, it must
    also be stressed that, unlike Persaud and Beauchamp, Brunet was convicted of
    the separate offences of conspiracy to commit credit card fraud and breach of
    her bail conditions.  These additional convictions further distance her circumstances
    from those of Persaud and Beauchamp.

[338]

Also relevant to
    Brunets restraint and parity argument is the trial judges appreciation of her
    antecedents, the nature of her role in the Canadian Barcode Groups activities,
    and the differences between her role and involvement and that of Cattral and
    Beauchamp.  The trial judge found Brunet engaged in serious credit card fraud
    related activities, was a controlling mind of Canadian Barcode, and was very
    involved in a sophisticated organization that sold devices used in credit card
    fraud: at para. 61.  Recall, also, Brunet was responsible for the financial
    affairs of the Group and actively participated in the sale of devices.

[339]

Nonetheless,
    when sentencing Brunet on her non-criminal organization offences, the trial
    judge accorded mitigation credit for Brunets rehabilitation prospects and
    specifically noted that she was less culpable than Cattral, despite the fact
    that she was an equal owner of Canadian Barcode.  He also took account of
    Brunets more positive antecedents, including the fact that her criminal record
    is not extensive and is less serious than that of Cattral.  These factors also
    favoured Brunet on sentencing.

[340]

The trial judge
    also took account of parity and restraint considerations when sentencing Brunet
    on her criminal organization conviction.  In imposing sentence on this
    conviction, the trial judge stated, at para. 62:

I have reduced her sentence from that given to Cattral because
    she was not the mastermind of the organization, she has a minor criminal
    record, and she played a lesser role than Cattral, although her involvement was
    significant as she was an equal owner of Canadian Barcode.

[341]

Finally, Brunet
    argues that the trial judge erred by failing to give due consideration to the
    terms and length of her bail.  Brunet was on bail for approximately five and
    one-half years pending trial, under what she describes as unusual and
    restrictive conditions.  She also points out that, apart from a breach of
    undertaking that occurred within one week of her release, she abided by her
    bail conditions without incident.  Further, by the time of her sentencing
    hearing, Brunet had been on bail for approximately nine years.  In these
    circumstances, Brunet submits her sentence on her non-criminal organization
    convictions should be reduced from two years to eight months in jail.

[342]

This argument is
    also undercut by the trial judges sentencing reasons.  The trial judge did not
    ignore Brunets lengthy bail or her compliance with the terms of her release.
    Rather, he expressly acknowledged Brunets compliance with her bail terms
    except for the single breach described above  for a lengthy period of five
    and a half (5 1/2) years and gave mitigation effect to these considerations:
    at para. 56.  We note that Brunet has pointed to no evidence of particularly restrictive
    bail conditions.  It must also be recalled that Brunet breached the terms of
    her release, although the breach was early and of a minor nature.

[343]

In light of the
    numerous aggravating factors identified, the extent of Brunets involvement in
    serious credit card fraud related offences, and the centrality of her role in
    Canadian Barcode, the trial judge concluded that a two-year jail term for the
    non-criminal organization offences was appropriate to protect the public and to
    achieve denunciation and deterrence.

[344]

We see no basis
    for appellate interference with this ruling.  The trial judge addressed the
    applicable sentencing considerations, including the principles of restraint and
    parity, and applied them to the totality of the facts.  We reject the contention
    that he erred in so doing or that Brunets two-year sentence for her
    non-criminal organization convictions is excessive or manifestly unfit.

(3)

Sufficiency of Reasons for Parole Ineligibility Order

[345]

We come, then,
    to Brunets submission that the trial judges reasons for imposing parole
    ineligibility under s. 743.6(1.2) of the
Criminal Code
are fatally
    deficient.  This submission may be dealt with summarily.

[346]

As we have
    already explained, unlike other provisions in s. 743.6, which afford sentencing
    judges the discretion to delay eligibility for full parole in defined
    circumstances, the language of s. 743.6(1.2) is mandatory.  Under this section,
    eligibility for full parole is presumptively delayed for s. 467 sentences of
    two years or more.  Unless the s. 743.6(1.2) statutory test for granting relief
    from parole ineligibility is met, parole eligibility must be delayed for such sentences.

[347]

In this case,
    having expressly considered the matter, the trial judge concluded that Brunet
    failed to satisfy the statutory test for relief from mandatory parole
    ineligibility.  Although he expressed his ruling on this issue in summary
    fashion, the reasons make clear that the trial judge turned his mind to the
    presumptive nature of s. 743.6(1.2) and his statutory authority to grant relief
    from parole ineligibility.  In our view, since he was not departing from the
    mandatory application of s. 743.6(1.2), no further elaboration was required to
    permit meaningful appellate review of his parole ineligibility order.  His reasons,
    while succinct, reveal why the delayed parole order was made.  This meets the
    sufficiency of reasons standard set out in
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869 and related cases.  See for example,
R. v. Zinck
,
    2003 SCC 6, [2003] 1 S.C.R. 41, at para. 37.

C.

Beauchamps Sentence
    Appeal

[348]

Beauchamp was
    convicted of six counts of buying and selling devices knowing that they were
    intended for use in credit card fraud, and one count of committing the
    indictable offence of selling devices used to forge credit cards for the
    benefit of a criminal organization, contrary to s. 467.12(1).

[349]

At sentencing,
    the Crown sought a global sentence of five years imprisonment (three years for
    the non-criminal organization convictions and two years for the s. 467.12(1) criminal
    organization conviction).  The defence, for its part, urged a 23-month blended
    conditional sentence, with some part spent in prison.

[350]

The trial judge
    imposed a global sentence of two years and nine months imprisonment

two
    years, concurrent, on Beauchamps non-criminal organization convictions and
    nine months, consecutive, on his s. 467.12(1) criminal organization
    conviction.  As with Cattral and Brunet, he also granted parole ineligibility
    and DNA orders.

[351]

Beauchamp makes
    two submissions on his sentence appeal.  First, he submits that if his s.
    467.12(1) conviction appeal succeeds, the two-year jail sentence imposed for
    his non-criminal organization offences is excessive.  Second, and in the
    alternative, he argues that if his s. 467.12(1) conviction appeal fails, his
    global sentence of two years and nine months in jail is excessive.

[352]

We have already
    concluded Beauchamps appeal against his s. 467 criminal organization
    conviction must be dismissed. Consequently, the only issue is whether the trial
    judge erred in imposing a global sentence of two years and nine months
    imprisonment.

[353]

Beauchamp
    submits the trial judge erred: (i) by overemphasizing the principles of
    denunciation and deterrence and failing to give adequate consideration to
    Beauchamps limited role within Canadian Barcode; (ii) by failing to apply the
    parity principle properly; and (iii) by concluding a penitentiary term of
    imprisonment with an order for reduced parole eligibility was required.
    Beauchamp argues that a proper application of the governing sentencing
    principles to his particular circumstances should have resulted in an overall
    sentence in the mid-reformatory range.

(1)

Parole Ineligibility Order

[354]

We begin with
    the trial judges parole ineligibility order under s. 743.6(1.2) of the
Criminal
    Code
.  The Crown concedes that a nine-month sentence of imprisonment on
    Beauchamps criminal organization conviction cannot trigger parole
    ineligibility under s. 743.6(1.2) of the
Criminal Code
.

[355]

This is a proper
    concession.  Section 743.6(1.2) specifically provides that it applies only
    where an offender receives a sentence of imprisonment of two years or more on
    conviction for a terrorism offence or an offence under ss. 467.11, 467.12 or
    467.13.  Here, s. 743.6(1.2) applied only to Beauchamps s. 467.12(1)
    conviction, for which he received a sentence of nine months imprisonment.
    Accordingly, s. 743.6(1.2) was inapplicable and the parole ineligibility order
    must be set aside.  See
R. v. Mathieu
, 2008 SCC 21, [2008] 1 S.C.R.
    723, at paras. 5 and 25-29.

[356]

However, this
    conclusion does not address the fitness of Beauchamps global sentence, nor
    does it taint the nine-month jail sentence imposed on his s. 467.12(1)
    conviction.  The question remains whether Beauchamps overall sentence is fit
    having regard to his circumstances and the circumstances of his offences.

(2)

A Fit Sentence

[357]

Beauchamp
    maintains that his global sentence offends the parity principle of sentencing.
    Specifically, he argues that his two-year sentence of imprisonment for his
    non-criminal organization offences is disproportionate and excessive when
    compared to the similar sentence received by Brunet for like offences because,
    unlike Beauchamp, Brunet was a principal and co-owner of Canadian Barcode and a
    critical figure in the Groups credit card fraud related crimes.

[358]

Beauchamp also
    argues that his sentence is disproportionate when compared to the sentence
    imposed on Persaud, an incorrigible career criminal and a long-term customer of
    Canadian Barcode, who received a global sentence of four years imprisonment
    after pleading guilty to various credit card fraud related offences.  Beauchamp
    contends there are clear differences between the severity of his crimes and
    level of his moral culpability compared to that of Persaud, which warrant a
    distinction in their respective sentences from a penitentiary to a reformatory
    term of imprisonment.

[359]

We need not
    repeat our earlier discussion of the purpose and ambit of the parity
    principle.  Suffice to say, we reject Beauchamps parity-based attack on his
    global sentence.  In our view, the trial judges sentencing reasons confirm
    that he took proper account of parity considerations when crafting Beauchamps
    sentence.

[360]

Contrary to
    Beauchamps submission, the trial judge gave adequate consideration to his role
    in the criminal organization, as compared to that of Brunet.  He addressed many
    of the similarities and dissimilarities between Beauchamps and Brunets
    activities, their antecedents, and the nature of their respective roles and
    involvement in the credit card related frauds.  He expressly noted, at paras.
    72 and 76, that: (i) unlike Brunet, Beauchamp was not a directing mind of
    Canadian Barcode; (ii) Beauchamp played a lesser role in the criminal
    organization than did Brunet, since he was merely an employee of the
    organization for a relatively short period of time; (iii) Beauchamp was not an
    important or key member of Canadian Barcodes staff; and (iv) unlike Brunet,
    Beauchamp has an extensive, although dated, criminal record that includes
    multiple convictions for theft, fraud and related credit card offences.

[361]

It is true that
    the trial judge did not expressly compare Beauchamps circumstances to those of
    Persaud.  However, this omission is of no moment since, in our view, Persaud is
    not an appropriate comparator for the purpose of assessing the proportionality
    and fitness of Beauchamps global sentence.  We underscore the differences
    between Persauds and Beauchamps circumstances: Persaud was not convicted of a
    s. 467 offence; unlike Beauchamp, Persaud pleaded guilty to various credit card
    fraud related offences; and Persaud testified at trial, albeit reluctantly, for
    the Crown.

[362]

Beauchamps
    reliance on Persaud as a counterpoint to justify a reduced sentence also
    downplays Beauchamps role and involvement with Canadian Barcode and the
    gravity of his own offences.  The trial judge accepted Beauchamp was used as a
    front man by Cattral and Brunet and as first contact with new customers.
    However, he also found, at paras. 72-73, 76 and 78, that: (i) Beauchamp
    actively and willingly sold devices he knew were intended to be used to forge
    credit cards; (ii) Beauchamp was aware the sale of these devices for illicit
    purposes resulted in financial gain for himself and the other members of the
    organization; (iii) the sale of these devices potentially caused huge
    financial losses to financial institutions; and (iv) Beauchamp provided
    technical support and assistance to customers, including suggestions on how to
    commit credit card fraud.

[363]

These findings are
    firmly grounded in the evidence.  Recall that Beauchamp was a principal
    salesperson for the devices, and was aware that Canadian Barcodes customers
    Persaud, Krespine and Shanghavi  were engaged in illegal activities.  Together
    with Cattral and Brunet, Beauchamp took active steps to assist these customers
    in their illegal activities.  He promoted connections between them,
    participated in efforts to conceal their identities, provided them with
    technical advice and assistance, and shared information about police law
    enforcement measures.

[364]

Thus,
    Beauchamps role was not inconsequential.  His knowledge of the criminal
    purpose of the credit card fraud related activities and his willing
    participation in and efforts to further those activities establish his relatively
    high degree of moral blameworthiness.

[365]

In these
    circumstances, in our opinion, it cannot be said that Beauchamps global
    sentence is excessive or unfit.  Nor is it in substantial and marked departure
    from sentences imposed for similar offenders committing similar crimes.
    Accordingly, apart from the trial judges parole ineligibility order, which we
    conclude cannot stand, we decline to disturb Beauchamps global sentence.

D.

Shanghavis Sentence
    Appeal

[366]

Shanghavi was
    convicted of one count of trafficking in credit card data, two counts of
    possession of devices that he knew were intended for use in forging credit
    cards (mini data loggers), and three counts of fraudulent possession of credit
    card data.

[367]

The trial judge
    was not satisfied to the requisite criminal standard that Shanghavi was a
    member of the Canadian Barcode Group, or even that he knew or suspected that
    the Group was a criminal organization.  Shanghavi was therefore acquitted of
    the criminal organization related charges brought against him, as well as a
    charge of conspiring to commit the indictable offence of trafficking in credit
    card data.

[368]

On sentencing,
    the Crown sought a global sentence of three years imprisonment, while the
    defence urged the imposition of a conditional sentence.  The trial judge
    sentenced Shanghavi to 15 months in jail, plus three years probation.  He also
    granted a DNA order.

[369]

The only issue
    on Shanghavis sentence appeal is whether a conditional, rather than a
    custodial, sentence is appropriate in the circumstances of his case.  Shanghavi
    argues that the trial judge erred in denying a conditional sentence: (i) solely
    on the basis of general deterrence and denunciation; (ii) by placing undue
    weight on general deterrence; and (iii) by relying on the size of the potential
    losses arising from Shanghavis involvement in the credit card scheme, in the
    absence of any evidence establishing those potential losses.  Based on these
    errors, Shanghavi says his custodial sentence should be set aside and a
    15-month conditional sentence substituted in its stead.  He further submits
    that no probationary term is necessary or appropriate.

[370]

Shanghavi
    applied for leave to adduce fresh evidence on appeal concerning his
    rehabilitative efforts since the date of his sentencing hearing.  The Crown did
    not oppose this application.  The fresh evidence consists of an affidavit sworn
    by Shanghavi on December 19, 2012, in which he describes, in some detail, the
    educational and employment-related activities he has undertaken since his
    sentencing on April 6, 2010.

[371]

At the outset,
    we acknowledge that substantial deference must be accorded to the sentence
    imposed by the trial judge.  This deference applies to the trial judges
    decision to refuse a conditional sentence.  Absent an error in principle,
    failure to consider or overemphasis of a relevant factor, or the imposition of
    a demonstrably unfit sentence, appellate interference with a sentence is
    unwarranted:
M. (C.A.)
;
R. v. Shropshire
,
[1995] 4 S.C.R. 227.

[372]

That said, the
    deference principle is not unlimited.  Where a trial judge fails to adhere to
    applicable legal principles and objectives of sentencing, leading to the
    imposition of an unwarranted sentence, it is appropriate and in the interests
    of justice for this court to intervene, especially in the case of a youthful
    first offender:
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d) 81, at para.
    52.

[373]

In this case,
    the trial judge recognized that Shanghavi was a first offender and that he was
    relatively young (24 years of age) when he committed the offences.  In light of
    Shanghavis youth and lack of a criminal record, and the fact that he was not
    convicted of a criminal organization offence, the trial judge held that the
    appropriate range of sentence was less than two years imprisonment.
    Consequently, on the authority of
R. v. Proulx
, 2000 SCC 5, [2000] 1
    S.C.R. 61, the trial judge held that a conditional sentence was available, as a
    matter of law.  We agree.

[374]

The trial judge
    went on to hold that a conditional sentence should not be imposed.  He
    reasoned, at para. 99:

I find that a conditional sentence would not adequately meet
    the needs for denunciation and general deterrence in Shanghavis circumstances
    because of the number of credit card fraud convictions involved (6), he was
    involved in sophisticated credit card fraud which could potentially cause
    hundreds of thousands of dollars in losses, he was not at the bottom of the
    ladder in the credit card fraud chain and the seriousness of credit card
    fraud.  The facts are distinguishable from
Ijam
,
supra
, by
    the lack of a guilty plea, the slightly older age and the more extensive
    involvement in credit card fraud.

[375]

With respect, we
    conclude that the trial judge erred in refusing to impose a conditional
    sentence.  We reach this conclusion for the following reasons.

[376]

There is no
    doubt, on this record, that Shanghavi was involved in sophisticated and serious
    credit card fraud that could have led to material losses for financial
    institutions and investors.  Further, as the trial judge found, the number of
    Shanghavis convictions establishes his substantial involvement in credit card
    fraud that was motivated by greed.  These were important considerations when
    addressing whether Shanghavis conduct required the imposition of a custodial
    term.

[377]

However, in
    rejecting a conditional sentence, the trial judge focused on the sentencing
    objectives of denunciation and general deterrence, without mention of specific
    deterrence or rehabilitation.  He only considered the latter principles when
    addressing the length of the custodial sentence to be imposed, having already concluded
    that a conditional sentence was inappropriate.

[378]

It is here, in
    our view, that the trial judge erred in principle.  Specific deterrence and
    rehabilitation were proper and necessary considerations in the assessment
    whether a conditional sentence was appropriate in this case.  Shanghavi is the
    only appellant without a criminal record.  He was not in the upper echelons or,
    indeed, even a member of the Canadian Barcode Group.  And he is the only
    appellant not convicted of a criminal organization offence.  Specific
    deterrence and rehabilitation speak strongly in favour of a conditional
    sentence for Shanghavi.

[379]

It is
    well-established that rehabilitation and specific deterrence are the paramount
    considerations on the sentencing of a youthful first offender; undue weight
    should not be placed on general deterrence:
Ijam
, at para. 55.  See
    also
R. v. Priest
(1996), 30 O.R. (3d) 538 (Ont. C.A.);
R. v.
    Borde
(2003), 63 O.R. (3d) 417 (Ont. C.A.);
R. v. Kutsukake
(2006), 213 C.C.C. (3d) 80 (Ont. C.A.).

[380]

Moreover, a
    conditional sentence can meet the objectives of general deterrence and
    denunciation.  As the majority of this Court stated in
Ijam
, at paras.
    58 and 60:

A related principle pertinent to this case is that even when
    there are aggravating factors which might point to the need for a sentence
    geared to general deterrence, a conditional sentence may provide sufficient
    denunciation and deterrence, and it is an error to rule out the possibility
    of a conditional sentence
ab initio
simply because aggravating
    features are present.  [Citations omitted.]

In my respectful view, the governing case law holds that a
    conditional sentence can serve the purposes of general deterrence and that the
    trial judges intended deterrence message ordinarily should not be sent when
    the cost is imprisoning a youthful first offender where all other factors
    strongly point to a conditional sentence.

See also
Kutsukake
, at paras. 14-17.

[381]

The trial judge
    distinguished Ijam from Shanghavi on the basis of: (i)  Shanghavis age
    (Shanghavi  24, Ijam  19) at the time of the relevant offences; (ii)
    Shanghavis extensive involvement in credit card fraud; and (iii) the fact that
    Shanghavi, unlike Ijam, did not plead guilty.  However, both offenders engaged
    in sophisticated and serious crimes and were young or relatively young at the
    time of their offences.  While Shanghavi did not plead guilty, his decision to
    proceed to trial is not a hurdle to a conditional sentence, nor can it be
    treated as an aggravating circumstance on sentencing.  Further, even accepting
    the factual distinctions identified by the trial judge, the governing legal
    principles for sentencing a relatively young first offender are not displaced.

[382]

Here, at the
    time of sentencing, several factors militated in favour of a conditional
    sentence.  Shanghavi is a relatively young first offender and a street level
    fraudster.  Although he was a regular customer of Canadian Barcode, his
    involvement with the organization was essentially confined to the purchase of
    devices intended to be used to forge credit cards.  He was neither a principal
    nor a member of the Canadian Barcode Group.  Instead, he acted for his own
    benefit.

[383]

Shanghavi also
    showed remorse for his conduct and complied with his bail conditions, without
    incident, for approximately five and one-half years pending trial.  He enjoyed
    the support of his family, lived near his father, and was an active member of
    the Hindu community.  He had also undertaken several self-study educational courses
    in the years awaiting trial.

[384]

These positive
    factors, of course, must be weighed against the serious nature of credit card
    fraud, the gravity and extent of Shanghavis conduct, its potential
    consequences, and his multiple convictions. That said, these aggravating
    factors diminish, not negate, the force of the many positive attenuating
    factors outlined above.  A conditional sentence may be imposed in a proper case
    notwithstanding the presence of aggravating features:
Proulx
, at para.
    115;
Kutsukake
, at paras. 14-17.

[385]

In fairness, the
    trial judge identified many of the mitigating and aggravating circumstances
    applicable to Shanghavi.  And, as we have said, he took several of these
    circumstances into account when determining the appropriate length of a custodial
    sentence.  However, by failing to consider specific deterrence and
    rehabilitation, he failed to factor Shanghavis many positive circumstances
    into his conditional sentence analysis.

[386]

There is also
    an additional, compelling factor to be taken into account.  Shanghavis fresh
    evidence demonstrates considerable, commendable rehabilitative efforts on his
    part.  At the time of sentencing, Shanghavi was unemployed.  He is now working
    in his chosen field as a project manager and IT architect, leading two teams on
    a multi-year project.  He has also continued with his education.  In 2011,
    while working, he successfully completed an industry certification as a Project
    Management Professional through the Project Management Institute.  The
    following year, he completed an additional information technology industry
    certification.  By the end of 2012, he had been accepted for and was
    undertaking distance learning in the M.B.A. program offered by the Edinburgh
    Business School, Heriot-Watt University, in the United Kingdom.  On completion
    of that degree, Shanghavi intends to enrol in doctorate studies.  In addition,
    Shanghavi is now involved in a stable relationship and, at the time his
    affidavit was sworn, was engaged to be married.

[387]

Finally, the
    events giving rise to Shanghavis convictions occurred in 2004, when he was 24
    years old.  He is now approximately 34 years of age.  And he has been on bail,
    without incident, for almost 11 years.

[388]

We do not
    diminish the gravity of Shanghavis conduct or the seriousness of credit card
    fraud.  Nonetheless, in light of the fresh evidence, which confirms Shanghavis
    considerable rehabilitative progress, coupled with his long-standing expression
    of remorse and acceptance of responsibility for his actions, we do not think
    that a custodial sentence is required at this juncture for the purposes of
    specific deterrence or rehabilitation.

[389]

As in
Ijam
,
    a custodial sentence would interrupt and impede, rather than facilitate,
    Shanghavis progressive course of rehabilitation.  Further, on the record
    before this court, Shanghavi does not pose a risk of re-offending.  The
    protection of the public does not require him to be imprisoned at this stage,
    and the goal of general deterrence can be achieved by a conditional sentence.

[390]

Accordingly, the
    facts of this case and his current circumstances cause us to conclude that a
    conditional sentence is the fit sentence for Shanghavi.

[391]

We also agree
    with Shanghavis submission that the imposition of a probation order is
    unnecessary given the passage of time and his significant rehabilitative
    progress since the time of sentencing.

[392]

The purpose of a
    probation order is to facilitate the offenders rehabilitation and to protect
    society, rather than to punish the offender for his or her criminal conduct:
Mathieu
,
    at paras. 20-21;
Proulx
, at paras. 32-34.  Shanghavi is well on his
    way to rehabilitation without the incentive of a probation order and nothing in
    his current circumstances suggests a probation order is now necessary to
    protect the public.

[393]

We would therefore
    grant Shanghavi leave to appeal sentence, allow his sentence appeal, and vary
    his sentence to a conditional sentence of 15 months, subject to the conditions
    set out in s. 742.3(1) of the
Criminal Code
.

DISPOSITION OF APPEALS

[394]

For the
    foregoing reasons, the conviction appeals are dismissed.  Leave to appeal the
    sentences is granted.  However, the sentence appeals of Cattral and Brunet are
    dismissed.  Beauchamps sentence appeal is granted in part by deleting the
    trial judges parole ineligibility order.  Shanghavis sentence appeal is
    allowed as set out above.

Released:

APR 17 2015                                    E.A.
    Cronk J.A.

EAC                                                R.A.
    Blair J.A.

David
    Watt J.A.

Schedule
    A

Appellant

Convictions

Sentence

Cattral

1.

Participation in a criminal
        organization [s. 467.11(1)]

(stay
        granted based on
Kienapple v. R.
);

2.

Commission of indictable offence
        for benefit of a criminal organization [s. 467.12(1)];

3.

Knowingly buying/selling
        instruments intended for use in credit card fraud (5 counts)   [s.
        342.01(1)(b)];

4.

Obstructing police [s. 129(a)];

5.

Fraudulent possession of credit
        card data (4 counts)    [s. 342(3)].

Total
          sentence of 7 years imprisonment:

-

4 years imprisonment,
        concurrent, for all offences except the criminal organization and obstruction
        of justice convictions;

-

6 months imprisonment,
        concurrent, for obstruction of justice conviction;

-

3 years imprisonment,
        consecutive, for criminal organization conviction;

-

delayed parole eligibility (s.
        743.6(1.2));

-

fine of $40,000 in lieu of
        forfeiture to be paid within three years of date of sentence; and

-

DNA order.

Credit
          of 8 months for pre-sentence custody.

Brunet

1.

Participation in a criminal
        organization [s. 467.11(1)]

(stay
        granted based on
Kienapple v. R.
);

2.

Commission of indictable offence
        for the benefit of a criminal organization [s. 467.12(1)];

3.

Knowingly buying/selling
        instruments intended for use in credit card fraud (5 counts) [s.
        342.01(1)(b)];

4.

Conspiracy to commit credit card
        forgery [s. 465(1)(c)];

5.

Breach of undertaking [s.
        145(3)].

Global
          sentence of 4 years imprisonment:

-

2 years imprisonment,
        concurrent, for all offences except the criminal organization and the breach
        of recognizance conviction;

-

1 month imprisonment,
        concurrent, for the breach of recognizance conviction;

-

2 years imprisonment,
        consecutive, for criminal organization conviction;

-

delayed parole eligibility (s.
        743.6(1.2));

-

fine of $40,000 in lieu of
        forfeiture to be paid within three years of date of sentence; and

-

DNA order

Beauchamp

1.

Participation in a criminal
        organization [s. 467.11(1)]

(stay
        granted based on
Kienapple v. R.
);

2.

Commission of indictable offence
        for the benefit of a criminal organization [s. 467.12(1)];

3.

Knowingly buying/selling
        instruments intended for use in credit card fraud (6 counts) [s.
        342.01(1)(b)].

Total
          sentence of 2 years and 9 months imprisonment:

-

2 years imprisonment,
        concurrent, for all offences except the criminal organization conviction;

-

9 months imprisonment,
        consecutive, for the criminal organization conviction;

-

delayed parole eligibility (s.
        743.6(1.2)); and

-

DNA order.

Shanghavi

1.

Possession of a device knowing
        it was  intended for credit card fraud (2 counts) [s. 342.01(1)(d)];

2.

Possession of credit card data
        (3 counts) [s. 342(3)];

3.

Trafficking in credit card data
        (1 count) [s. 342(3)].

15
          months imprisonment, plus 3 years probation and DNA order

[1]
The Crown alleged the appellants engaged in fraud relating to credit, debit and
    other financial cards. For the purpose of simplicity, throughout these reasons,
    we will refer to these collectively as credit cards, except where it is
    necessary to discuss a particular card in relation to certain counts.

[2]

R. v. Garofoli
, [1990] 2 S.C.R.
    1421.

[3]
The appellants convictions and sentences are set out in the chart attached as
    Schedule A to these reasons.

[4]
MIR stands for magnetic insert reader.

[5]
By the time of trial, Krespine had been murdered, and Persaud had pled guilty
    to a number of charges in exchange for a lesser prison sentence.  Of the three,
    only Shanghavi remained as a co-accused.  At trial, Persaud  together with
    Gehmlich  was a witness for the Crown.

[6]

Kienapple v. The Queen
, [1975] 1 S.C.R. 729.

[7]
The convictions for participating in the activities of a criminal organization
    were stayed on the basis of the principles set out in
Kienapple
.
    Cattral was acquitted on a charge of having instructed Shanghavi to commit an
    indictable offence (trafficking in credit card data) for the benefit of a
    criminal organization, contrary to s. 467.13.

[8]
As the criminal organization was composed of Cattral, Brunet and Beauchamp, for
    purposes of clarity, we will refer to the criminal organization as the
    Canadian Barcode Group.  In doing so, we recognize that the group forming the
    criminal organization consisted of Cattral, Brunet and Beauchamp, but that
    their illicit activities were carried out through the corporate vehicle,
    Canadian Barcode.

[9]
Count 5 (Cattral and Shanghavi); Count 26 (Shanghavi); Count 22 (Cattral);
    Counts 24-25 (Cattral); and Counts 29-30 (Shanghavi).

[10]
Section 342(3) was amended following the appellants trial, effective January
    7, 2010. This version reflects that in force at the time of the appellants
    trial.

[11]
An earlier request for a five-judge panel to determine the issue was denied by
    Watt J.A. (sitting as a case management judge), on August 19, 2014, one month
    after the release of this Courts decision in
Tuduce
.

[12]

Shorter Oxford English Dictionary
, 3d ed., vol. 1,
sub verbo
authentic.

[13]
This provision was subject to amendments effective following the appellants
    trial.

[14]

R. v. Carter
, [1982] 1 S.C.R.
    938.

[15]
Brunet and Beauchamp were also convicted of offences under s. 467.11(1) of the
Criminal Code
.  Since these convictions,
    like Cattrals s. 467.11(1) conviction, were stayed under
Kienapple
, we do not address them further
    in these reasons.