R v. Beauchamp,

• Jurisdiction: Ontario
• Judge: Cronk, Blair and Watt, JJ.A.
• Neutral Citation: 2015 ONCA 260
• Citation: (2015), 333 O.A.C. 87 (CA),2015 ONCA 260,326 CCC (3d) 280,[2015] OJ No 1939 (QL),333 OAC 87,333 O.A.C. 87,[2015] O.J. No 1939 (QL),(2015), 333 OAC 87 (CA)
• Date: 17 April 2015
• Court: Court of Appeal (Ontario)

R. v. Beauchamp (H.C.) (2015), 333 O.A.C. 87 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.019

Her Majesty the Queen (respondent) v. Henry Charles Beauchamp, Catherine Margaret Brunet, Robert Cattral and Ravi Rabbi Shanghavi (appellants)

(C51916; C51918; C51949; C52248; 2015 ONCA 260)

Indexed As: R. v. Beauchamp (H.C.) et al.

Ontario Court of Appeal

Cronk, Blair and Watt, JJ.A.

April 17, 2015.

Summary:

The four accused (Beauchamp, Brunet, Cattral and Shanghavi) were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme. In addition, all except Shanghavi were convicted of participating in a criminal organization and committing an indictable offence for the benefit of a criminal organization. Cattral and Brunet were the founders, owners and operators of a company, Canadian Barcode and Plastic Card Supply Inc., that sold devices and software used to transfer data from credit or debit cards onto fraudulent cards. Beauchamp was an employee of Canadian Barcode; Shanghavi was a customer. The accused received sentences ranging from 15 months' imprisonment to seven years' imprisonment. They appealed their convictions and the sentences.

The Ontario Court of Appeal dismissed the conviction appeals and the sentence appeals of Cattral (seven years) and Brunet (four years). The sentence appeal of Beauchamp (two years and nine months; delayed parole eligibility) was allowed in part by deleting the parole ineligibility order. Shanghavi's sentence (15 months' imprisonment; three years' probation) was varied to a conditional sentence of 15 months.

Criminal Law - Topic 1943

Offences against property - Credit cards - Unauthorized use of credit card data - Cattral and Shanghavi were both convicted on a number of counts relating to the fraudulent possession of credit card data (Criminal Code, s. 342(3)) - On appeal, they argued that the Crown did not/could not prove that they possessed data that "would enable" a person to use a credit card, because the data was unusable, having been cancelled or expired - The Ontario Court of Appeal held that the Court's decisions in R. v. Kokoouline (2009) and in R. v. Tuduce (2014) were dispositive of the 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). ... 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 ... - 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." - See paragraphs 195 to 202.

Criminal Law - Topic 1944

Offences against property - Credit cards - Instruments for copying credit card data or forging or falsifying credit cards - Beauchamp appealed his conviction on selling a device (a magnetic stripe reader) knowing that it was intended for use in forging credit cards (Criminal Code, s. 342.01(1)(b)) - He argued that since the purchaser in the transaction was an undercover police officer who could not have intended to use the device illegally, he therefore could not have known the device was intended for such use - The Ontario Court of Appeal agreed with the Crown's submission that s. 342.01(1)(b) did not require it to prove the purchaser's intent; the intent of the seller was all that mattered - The language of s. 342.01(1) confirmed that interpretation - See paragraphs 228 to 243.

Criminal Law - Topic 1944

Offences against property - Credit cards - Instruments for copying credit card data or forging or falsifying credit cards - Brunet was charged with conspiring with Persaud to commit the indictable offence of forging credit cards - She argued that her conviction should be set aside for two reasons: (1) the trial judge erred by inferring the existence of a two-person conspiracy between her and Persaud; and (2) at best there was an agreement that she would provide assistance to Persaud, but no common objective to commit the crime of forging credit cards - The Ontario Court of Appeal did not accept either submission - The trial judge, in his analysis, "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." - See paragraphs 205 to 215.

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Conspiracies - Agreement - What constitutes a conspiracy - [See second Criminal Law - Topic 1944 ].

Criminal Law - Topic 2725

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Criminal organization defined - The Ontario Court of Appeal interpreted the words "however organized" and the words "one of its main purposes or main activities" in the context of the definition of "criminal organization" under s. 467.1(1) of the Criminal Code - See paragraphs 152 to 190.

Criminal Law - Topic 2726

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Offence committed for the benefit of, at the direction of, or in association with, a criminal organization - Cattral, Brunet and Beauchamp were each convicted of: (1) 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 (Criminal Code, s. 467.11(1)), and (2) committing an indictable offence for the benefit of a criminal organization (s. 467.12(1)) - The trial judge found that Cattral, Brunet and Beauchamp constituted a group of three persons comprising a criminal organization (the "Canadian Barcode Group") - The Ontario Court of Appeal, on the basis of the evidence, was 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' ..." - See paragraphs 152 to 167.

Criminal Law - Topic 2726

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Offence committed for the benefit of, at the direction of, or in association with, a criminal organization - The trial judge found that three of the four accused constituted a group comprising a "criminal organization" - The definition of "criminal organization" in s. 467.1 of the Criminal Code required that a group have as "one of its main purposes or main activities" the facilitation or commission of the serious crimes described - The Ontario Court of Appeal rejected the quantitative comparison analysis proposed by the accused - "[T]here 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. The language of the definition of 'criminal organization' in s. 467.1 is instructive. ... 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." - See paragraphs 168 to 171.

Criminal Law - Topic 2726

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Offence committed for the benefit of, at the direction of, or in association with, a criminal organization - The definition of "criminal organization" in s. 467.1 of the Criminal Code required that a group have as "one of its main purposes or main activities" the facilitation or commission of the serious crimes described - The Ontario Court of Appeal held that the purpose and intent of the "criminal organization" provisions militated against a quantitative comparison approach - "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 group's 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. ... [I]mportance 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." - See paragraphs 182 and 183.

Criminal Law - Topic 2726

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Offence committed for the benefit of, at the direction of, or in association with, a criminal organization - The four accused were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - The trial judge found that three of the accused constituted a group comprising a criminal organization (the "Canadian Barcode Group") - The Ontario Court of Appeal was satisfied that the illicit credit card scheme was "one of the main purposes or main activities" of the Group - The sale and distribution of Canadian Barcode devices, software and materials used to forge credit cards was not a de minimus or limited edition activity - The scheme was international in its scope, and "deeply felonious in its composition" - In the context of the formal structure, continuity and coordination of the overall operations, "it is unlikely in the extreme" that the illicit activities were simply "an unimportant blip or subplot in an otherwise legitimate business endeavour." - See paragraphs 185 to 190.

Criminal Law - Topic 5271

Evidence and witnesses - Interception of private communications (incl. video surveillance) - General principles - The Ontario Court of Appeal discussed aspects of the procedure followed on applications for wiretap authorizations under s. 186(1) of the Criminal Code, and the scope of authorization review to determine whether the authorization complied with s. 8 of the Charter (the "Garofoli" review) - See paragraphs 79 to 105.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - The four accused were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - On appeal, the accused submitted that 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 supportive affidavit required by s. 185(1) of the Criminal Code satisfied the probable cause requirement in s. 186(1)(a) of the Code - The Ontario Court of Appeal disagreed - "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). ... 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. This probable cause ground of appeal fails." - See paragraphs 106 to 114.

Criminal Law - Topic 5274.2

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Names of persons affected - The four accused, including Shanghavi, were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - The trial judge concluded that Shanghavi should have been named as a "known person" in the authorization - He held that, due to the failure to name Shanghavi, the interception of his private communications offended s. 8 of the Charter - However, the trial judge admitted them as evidence under s. 24(2) - The Ontario Court of Appeal held that the trial judge erroneously considered that there were two categories of "known persons", rather than one - "[T]here 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.' " - In the end result, however, the Court was satisfied that the trial judge correctly admitted the evidence - See paragraphs 133 to 135.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The four accused were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - On appeal, the accused contended that the resort to interception of private communications was premature and failed to meet the standard of investigative necessity set by s. 186(1)(b) of the Criminal Code - The Ontario Court of Appeal disagreed - "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." - See paragraph 118.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The four accused were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - On appeal, the accused argued that investigative necessity could not 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 - The Ontario Court of Appeal regarded that argument as "untenable" - "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." - See paragraph 119.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The four accused were each convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - On appeal, the accused submitted that, by permitting the investigative goals to be manipulated so that the interception of private communications itself became an investigative necessity, the reviewing judge effectively allowed law enforcement to circumvent the investigative necessity requirement - The Ontario Court of Appeal rejected that 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." - See paragraphs 120 and 121.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The four accused appealed their convictions on fraud-related offences arising out of a widespread credit and debit card skimming scheme - The Ontario Court of Appeal rejected the submission that law enforcement's ultimate goal was to prosecute those involved for offences under s. 342.01(1) of the Code (instruments for copying credit card data or forging or falsifying credit cards), for which an authorization could not have been granted - Even if that had been law enforcement's objective, it was of no moment - "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. 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 ... . 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." - See paragraphs122 to 124.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The four accused contested their convictions on fraud-related offences arising out of a widespread credit and debit card skimming scheme - All attacked the trial judge's failure to exclude the wiretap evidence on the Garofoli application - The Ontario Court of Appeal rejected the 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. First ... there was no rush to interception here. ... 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." - See paragraphs 125 to 129.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - The Ontario Court of Appeal concluded that the trial judge erred in refusing to impose a conditional sentence in this case - "[I]n 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. 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." - See paragraphs 377 and 378.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See seventh Criminal Law - Topic 5899 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See third Criminal Law - Topic 5899 ].

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - [See second Criminal Law - Topic 5899 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See seventh Criminal Law - Topic 5899 ].

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - The Ontario Court of Appeal, in considering the sentencing principles specific to offences relating to the activities of a "criminal organization" (Criminal Code, s. 467), stated that "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." - See paragraph 259.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - Cattral was convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - He was sentenced to a global sentence of seven years' imprisonment - In support of his sentence appeal, he raised parity arguments - He contended that the three-year sentence on his "criminal organization" conviction (Criminal Code, s. 467.12(1)) was disproportionate to the sentences imposed on SST (the supplier of the skimming devices) and Persaud (a customer) - The Ontario Court of Appeal saw little parallel between Cattral's circumstances and those of Persaud and SST, both of whom had entered guilty pleas - (1) The fact that Persaud and SST were not found guilty of a s. 467 offence materially distinguished their moral blameworthiness from that of Cattral - (2) Cattral was the mastermind of serious ongoing credit and debit card frauds effected by the criminal organization - (3) Cattral's criminal record included convictions in 2000 for possession of credit card data and unauthorized use of data, plus assault with a weapon - Cattral's global sentence thus reflected his crucial and directing role in the criminal organization, his antecedents, and his lack of responsibility and remorse - See paragraphs 274 to 292.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - Cattral was convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - The trial judge concluded that a global sentence at the approximate mid-point of the sentences urged by counsel, i.e., seven years in jail, met the objectives of denunciation, deterrence and protection of the public - The Ontario Court of Appeal rejected Cattral's contention that the totality principle mandated a reduction in sentence - The four-year custodial sentence imposed for Cattral's non-criminal organization offences was well within the range of appropriate sentences - In fashioning an appropriate sentence for Cattral's criminal organization offence (Criminal Code, s. 467.12(1)), the trial judge expressly considered the totality principle - The three-year jail sentence imposed on the s. 467.12(1) offence was not unfit - "While there is no established range of sentence for criminal organization offences, provincial appellate courts have upheld similar sentences for s. 467 offences" - Cattral's global sentence appropriately recognized the seriousness of his offences and the magnitude of his culpability - See paragraphs 293 to 304.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - Cattral, a computer expert and technical consultant to various police forces, was convicted of fraud-related offences arising out of a widespread credit and debit card skimming scheme - He was sentenced to a global sentence of seven years' imprisonment - In support of his sentence appeal, he argued that the trial judge erred by treating his assistance to law enforcement authorities as an aggravating, rather than a mitigating, factor - The Ontario Court of Appeal disagreed - The evidentiary record "overwhelmingly" supported the trial judge's finding that Cattral had an ulterior motive in assisting the police that furthered his criminal activities - 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; that was a pertinent and aggravating circumstance - The Court also rejected the complaint that the trial judge engaged in impermissible "double-counting" by treating the conduct underlying Cattral's criminal organization conviction (Criminal Code, s. 467.12(1)) 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 - See paragraphs 306 to 313.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - In support of her sentence appeal, the appellant Brunet advanced a "double-counting" argument; i.e., that the trial judge erred by treating the conduct underlying her criminal organization conviction (Criminal Code, s. 467.12(1)) 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 - The Ontario Court of Appeal rejected the argument - "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. Brunet essentially invites this court to read s. 718.2(a)(iv) as applying only where no s. 467 conviction has occurred. ... There is nothing in the language of s. 718.2(a)(iv) to support this narrow construction. ... [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. ... 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." - See paragraphs 322 to 329.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - Brunet was convicted of five counts of buying and selling devices knowing that they were intended for use in credit card fraud (Criminal Code, s. 342.01(1)(b); committing the indictable offence of selling devices used to forge credit cards for the benefit of a criminal organization (s. 467.12(1)); and conspiring to commit the indictable offence of forging credit cards (s. 465(1)(c)) - She was sentenced to a global sentence of four years' imprisonment: (two years' imprisonment, concurrent, for all offences except the criminal organization conviction, for which she received two years' imprisonment, consecutive) - In light of the numerous aggravating factors identified, the extent of Brunet's involvement in the offences, and the centrality of her role in the criminal organization, 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 - The Ontario Court of Appeal held that the global sentence of four years' imprisonment was fit and amply justified - See paragraphs 330 to 344.

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - 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, and three counts of fraudulent possession of credit card data - The trial judge recognized that Shanghavi was a first offender and that he was relatively young when he committed the offences, but that a conditional sentence would not adequately meet the needs for denunciation and general deterrence - The judge sentenced him to 15 months in jail, plus three years' probation - The Ontario Court of Appeal varied the sentence to a conditional sentence of 15 months - By failing to consider specific deterrence and rehabilitation, the trial judge failed to factor Shanghavi's many positive circumstances into his conditional sentence analysis - The events giving rise to Shanghavi's convictions occurred in 2004, when he was 24 years old - He had been on bail, without incident, for almost 11 years - "[I]n light of the fresh evidence, which confirms Shanghavi's 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" - See paragraphs 378 to 393.

Criminal Law - Topic 5977

Sentence - Criminal organization offence - [See third and fifth Criminal Law - Topic 5899 ].

Words and Phrases

Criminal organization - The Ontario Court of Appeal interpreted the words "however organized" and the words "one of its main purposes or main activities" in the context of the definition of "criminal organization" under s. 467.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 152 to 190.

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 9, footnote 2].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 66, footnote 6].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 83].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 84].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 2009 CarswellOnt 7509; 249 C.C.C.(3d) 29; 2009 ONCA 851, leave to appeal refused [2010] 1 S.C.R. ix; 404 N.R. 386; 276 O.A.C. 397, refd to. [para. 85].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 305 C.C.C.(3d) 421; 2014 ONCA 72, refd to. [para. 85].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 87].

R. v. Morelli - see R. v. U.P.M.

R. v. Grant (O.) (1999), 117 O.A.C. 345; 132 C.C.C.(3d) 531 (C.A.), leave to appeal refused (2001), 266 N.R. 399; 146 O.A.C. 199 (S.C.C.), refd to. [para. 89].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 91].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 91].

R. v. Mahal (K.) (2012), 297 O.A.C. 376; 113 O.R.(3d) 209; 292 C.C.C.(3d) 252; 2012 ONCA 673, leave to appeal refused (2013), 453 N.R. 400; 315 O.A.C. 400 (S.C.C.), refd to. [para. 91].

R. v. Wong (E.), [2011] B.C.A.C. Uned. 24; 268 C.C.C.(3d) 37; 2011 BCCA 13, leave to appeal refused (2011), 424 N.R. 398; 305 B.C.A.C. 320; 515 W.A.C. 1 (S.C.C.), refd to. [para. 92].

R. v. Paris (N.) et al. (2006), 208 O.A.C. 385 (C.A.), refd to. [para. 99].

R. v. Lajeunesse - see R. v. Paris (N.).

R. v. Schreinert (S.) (2002), 159 O.A.C. 174; 165 C.C.C.(3d) 295 (C.A.), refd to. [para. 99].

R. v. Tahirkheli (T.) (1998), 113 O.A.C. 322; 130 C.C.C.(3d) 19 (C.A.), refd to. [para. 100].

R. v. Wasfi (G.) (2006), 222 B.C.A.C. 130; 368 W.A.C. 130; 2006 BCCA 55, refd to. [para. 100].

R. v. Pham (B.D.) (2002), 167 B.C.A.C. 66; 274 W.A.C. 66; 165 C.C.C.(3d) 97; 2002 BCCA 247, refd to. [para. 100].

R. v. Rosebush (F.E.) et al. (1992), 131 A.R. 282; 25 W.A.C. 282; 77 C.C.C.(3d) 241 (C.A.), leave to appeal refused (1993), 151 N.R. 391; 145 A.R. 240; 55 W.A.C. 1 (S.C.C.), refd to. [para. 102].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 105].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 143].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 144].

R. v. Terezakis (A.) (2007), 245 B.C.A.C. 74; 405 W.A.C. 74; 2007 BCCA 384, leave to appeal refused (2008), 385 N.R. 380; 268 B.C.A.C. 320; 452 W.A.C. 1 (S.C.C.), refd to. [para. 148].

R. v. Venneri (C.) (2012), 432 N.R. 54; 2012 SCC 33, appld. [para. 152].

R. v. Kokoouline (S.), [2009] O.A.C. Uned. 227; 82 W.C.B.(2d) 413; 2009 ONCA 253, appld. [para. 200].

R. v. Tuduce (A.) (2014), 322 O.A.C. 76; 314 C.C.C.(3d) 429; 2014 ONCA 547, appld. [para. 200].

R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), leave to appeal refused [2006] 1 S.C.R. v; 352 N.R. 197; 221 O.A.C. 400, refd to. [para. 210].

R. v. Alexander - see R. v. H.A. et al.

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, dist. [para. 231].

R. v. Irwin, [1968] S.C.R. 462, consd. [para. 240].

R. v. Hyland (1898), 24 Vict. L.R. 101, refd to. [para. 241].

R. v. Hillman (1863), 9 Cox C.C. 386; 169 E.R. 1424, refd to. [para. 241].

R. v. Titley (1880), 14 Cox C.C. 502, refd to. [para. 241].

R. v. Robinson (E.) (2014), 314 O.A.C. 211; 118 O.R.(3d) 581; 2014 ONCA 63, refd to. [para. 247].

R. v. Dubois (1986), 27 C.C.C.(3d) 325 (Ont. C.A.), refd to. [para. 247].

R. v. Baron and Wertman (1976), 14 O.R.(2d) 173 (C.A.), refd to. [para. 247].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 253, footnote 14].

R. v. Mastop (W.J.) (2013), 346 B.C.A.C. 231; 592 W.A.C. 231; 303 C.C.C.(3d) 411, leave to appeal refused [2014] N.R. TBEd. Motion 144 (S.C.C.), refd to. [para. 260].

R. v. Beauchamp (H.C.) et al., 2010 ONSC 1707, refd to. [para. 270].

R. v. Rawn (H.A.-M.) (2012), 294 O.A.C. 261; 2012 ONCA 487, refd to. [para. 276].

R. v. Mann (A.T.) (2010), 261 O.A.C. 379; 2010 ONCA 342, refd to. [para. 276].

R. v. Chambers (I.J.) (2013), 311 O.A.C. 307; 2013 ONCA 680, refd to. [para. 277].

R. v. Issa (T.) (1992), 57 O.A.C. 253 (C.A.), leave to appeal refused (1993), 149 N.R. 215; 61 O.A.C. 232 (S.C.C.), refd to. [para. 277].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 277].

R. v. Flowers (D.) (2010), 258 O.A.C. 97; 2010 ONCA 129, refd to. [para. 277].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 278].

R. v. Courtney (T.) (2012), 294 O.A.C. 346; 2012 ONCA 478, refd to. [para. 278].

R. v. Johnson (F.) (2012), 291 O.A.C. 350; 2012 ONCA 339, refd to. [para. 295].

R. v. Lindsay (S.P.) et al. (2009), 251 O.A.C. 1; 97 O.R.(3d) 567; 2009 ONCA 532, refd to. [para. 300].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 347].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 347].

R. v. Mathieu (P.), [2008] 1 S.C.R. 723; 373 N.R. 370; 2008 SCC 21, refd to. [para. 354].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 371].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 226 C.C.C.(3d) 376; 87 O.R.(3d) 81; 2007 ONCA 597, refd to. [para. 372].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 373].

R. v. Priest (J.) (1996), 93 O.A.C. 163; 30 O.R.(3d) 538 (C.A.), refd to. [para. 379].

R. v. Borde (Q.) (2003), 168 O.A.C. 317; 63 O.R.(3d) 417 (C.A.), refd to. [para. 379].

R. v. Kutsukake (T.) (2006), 216 O.A.C. 317; 213 C.C.C.(3d) 80 (C.A.), refd to. [para. 379].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 185(1)(e) [para. 103]; sect. 186(1) [para. 80]; sect. 186(4)(c) [para. 103]; sect. 342(3) [para. 196]; sect. 342.01(1)(b) [para. 234]; sect. 467.1(1), sect. 467.11, sect. 467.12 [para. 142]; sect. 743.6(1.2) [para. 345].

Authors and Works Noticed:

Canada, Standing Committee on Justice and Human Rights, No. 11, Sess. 1, 37th Parliament (May 8, 2001), p. 0845 [para. 146].

Canada, Standing Senate Committee on Legal and Constitutional Affairs, No. 16, Sess. 1, 37th Parliament (November 21, 2001), p. 3:40 [para. 147].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 143].

Ruby, Clayton, Sentencing (8th Ed. 2012), p. 50 [para. 294].

Counsel:

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.

These conviction and sentence appeals were heard on October 14 and 15, 2014, before Cronk, Blair and Watt, JJ.A., of the Ontario Court of Appeal. The Court delivered the following judgment and reasons, released on April 17, 2015.