A three-year sentence imposed against Siva Suthakaran was “proportionate to the degree of responsibility of the appellant in the perpetration of the fraud,” the Court of Appeal stated in its March 4 ruling in R. v. Boghossian, 2019 ONCA 169.
The three-judge panel did reduce a $600,000 fine in lieu of forfeiture, levied by Superior Court Justice Alfred O’Marra, to just less than $28,000. The appeal court also found in its decision that the case fit under the “transitional exceptional circumstances” set out in R. v. Jordan by the Supreme Court of Canada in 2016 for criminal cases that were in the system before that judgment was issued.
The Court of Appeal ruling “is a reminder that just because a case might be stayed under Jordan does not mean that the transitional circumstances will not apply if the parties were acting reasonably and relying on the law as it was at the time,” says Daniel Goldblooom, a Toronto defence lawyer, who was not involved in the Suthakaran case.
Suthakaran, Raffi Ebrekdjian and lawyer Remy Boghossian were originally charged with fraud in May 2011, following an investigation into a stolen and forged bank draft for $1,895,751.
Boghossian, a sole practitioner at the time, was found at trial to have deposited the fraudulent bank draft into his trust account with RBC. The proceeds were then used to buy 41 kilograms of Perth Mint gold bullion that were purchased at a business in Montreal and picked up by Ebrekdjian and Boghossian.
The bars, most of which were 10 ounces and under, had a distinct mark of repeating images of kangaroos.
The trial judge concluded that the client that Boghossian said provided the bank draft did not exist. Ebrekdjian was sentenced to three years in prison for his role in the fraud. Boghossian received a three-and-a-half-year sentence.
The Court of Appeal dismissed his appeal in November 2017 and stated that the slightly longer sentence was appropriate because Boghossian was a lawyer. His licence to practise law has been suspended by the Law Society of Ontario since his conviction in 2015. The regulator has not, as of yet, sought to disbar Boghossian.
Suthakaran was found at trial to have been the individual who co-ordinated with a still unidentified “inside person” at a TD Canada Trust branch from which the bank draft was stolen.
The Court of Appeal rejected his argument that the verdict was unreasonable and that he was introduced to Boghossian only in connection with a possible investment in a hotel in Belleville, Ont.
“The circumstantial case against the appellant was solidly anchored in the evidence, including over 100 calls and text messages exchanged by the appellant with the phone purchased and used by Mr. Ebrekdjian during the three-day period surrounding the deposit of the fraudulent draft at RBC; the context of the messages themselves, including references to the ‘banker’ and ‘ur guy,’” the Court of Appeal noted.
An argument that the delay in bringing the case to trial was caused by the co-accused was also not accepted by the Court of Appeal.
“The appellant never sought severance from his co-accused, nor do we consider that the limited delays in the case required the Crown to seek severance,” wrote justices Paul Rouleau, Gary Trotter and Benjamin Zarnett.
Ravin Pillay, who represented Suthakaran in the appeal, did not respond to requests for comment. The issue of whether the delay from the time of arrest to the trial was unreasonable and a Charter breach was decided in this case under the former Morin analysis.
In any proceeding, though, where there is more than one defendant, says Goldbloom, it is going to be an uphill battle to obtain a stay based on delays caused by a co-accused.
“If you can’t get severance, you are in a difficult situation,” he states. “Post-Jordan, there are more requirements on the defence to show they are moving the case forward. It requires tremendous effort if a co-accused is holding things up. You might have to pursue severance or bring applications, even if they might not succeed, to show you are trying to move the matter forward,” says Goldbloom.