R. v. Bjellebo (E.S.), (2003) 177 O.A.C. 378 (CA)

• Judge: MacPherson, Sharpe and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 14, 2003
• Jurisdiction: Ontario
• Citations: (2003), 177 O.A.C. 378 (CA)

R. v. Bjellebo (E.S.) (2003), 177 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. OC.065

Her Majesty The Queen (respondent) v. Einar Bjellebo (A.K.A. Bellfield) (appellant)

(C33343)

Her Majesty The Queen (respondent) v. Osvaldo Minchella (appellant)

(C33618)

Indexed As: R. v. Bjellebo (E.S.) et al.

Ontario Court of Appeal

MacPherson, Sharpe and Cronk, JJ.A.

October 14, 2003.

Summary:

The accused were charged with two counts of fraud and two counts of uttering forged documents between 1984 and 1991 arising out of a tax fraud scheme. The victims were the Government of Canada and 613 investors in limited partnerships operated by the accused. The accused applied, under s. 24 of the Charter, to stay the proceedings against them or exclude all evidence obtained throughout Revenue Canada's investigation. They alleged violations of their ss. 7, 8, 11(b) and 11(d) Charter rights.

The Ontario Court (General Division), in a decision reported at 102 O.T.C. 81, held that the accused's ss. 7 and 8 Charter rights were infringed when Revenue Canada's Special Investigation section continued their investigation in an undercover manner after they had reasonable grounds to believe that an offence had been committed. However, the court refused to exclude the evidence under s. 24(2) of the Charter. Bjellebo and Minchella were each convicted of two counts of fraud and two counts of uttering forged documents.

The Ontario Superior Court, in a decision reported at [2000] O.T.C. 119, sentenced Bjellebo to: 10 years' imprisonment on count 1; a $1 million fine on count 2, or in default of payment, to two years' imprisonment consecutive to any other sentence; and four years in the penitentiary on each of counts 3 and 4, concurrent with each other and with count 1 (total custodial sentence, 10 years). The court sentenced Minchella to: seven years' imprisonment on count 1; seven years concurrent on count 2; and three years on each of counts 3 and 4, to be served concurrent to each other and to the sentence on count 1 (total custodial sentence, seven years). The accused appealed their convictions and sought leave to appeal their sentences.

The Ontario Court of Appeal dismissed the conviction appeals, granted leave to appeal the sentences and dismissed the sentence appeals.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused were charged in a $118 million international tax fraud scheme that involved over 600 individual investors - The accused applied, under s. 24 of the Charter, to stay the proceedings against them or exclude all evidence obtained throughout Revenue Canada's investigation - The trial judge held that the accused's ss. 7 and 8 Charter rights were infringed when Revenue Canada's Special Investigation section continued their investigation in an undercover manner after they had reasonable grounds to believe that an offence had been committed - However, the court refused to exclude the evidence because it could have been obtained from an independent source or was otherwise discoverable - Further, the violation was incurred in good faith and was relatively minor in nature - The Ontario Court of Appeal upheld the decision - See paragraphs 1 to 11.

Civil Rights - Topic 4350

Protection against self-incrimination - Self-incriminating documents - Production of - Denial of right - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 4456

Protection against self-incrimination - Proceedings to which protection does not apply - Income tax audits and inquiries - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - After a lengthy trial by judge and jury, two accused were each convicted of two counts of fraud and two counts of uttering forged documents between 1984 and 1991 - The fraud was of massive proportion and international in scope - The trial judge invited the jury, counsel and the income tax investigators to a post conviction reception - Subsequently, the trial judge sentenced the accused - The Ontario Court of Appeal rejected the submission that the accused's sentencing was thereby tainted - While such a practice was ill-advised, it did not give rise to a perception of bias in this case - Defence counsel participated without objection - A reasonable observer, viewing the matter realistically and objectively, would not conclude that this act of generosity by the trial judge had any bearing on the sentences she later imposed - See paragraph 16.

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - Bjellebo and Minchella were each convicted after a trial by judge and jury of two counts of fraud and two counts of uttering forged documents between 1984 and 1991 - The trial judge found that the fraud committed was of massive proportion and international in scope - She sentenced Bjellebo to ten years' imprisonment and a fine of $1,000,000 - She sentenced Minchella to seven years' imprisonment - The Ontario Court of Appeal held that the trial judge did not err in failing to apply the Kienapple principle to the uttering charges because the fabrication of the elaborate documents required to support the scheme involved an additional and distinguishing element - See paragraph 14.

Criminal Law - Topic 5628

Punishments (sentence) - Fines, penalties and compensation orders - Circumstances when fine appropriate - Bjellebo and Minchella were each convicted of two counts of fraud and two counts of uttering forged documents between 1984 and 1991 - The fraud was of massive proportion and international in scope - Bjellebo was sentenced to 10 years' imprisonment on count 1; a $1 million fine on count 2, or in default of payment, to two years' imprisonment consecutive to any other sentence; and four years' imprisonment on each of counts 3 and 4, concurrent with each other and with count 1 (total custodial sentence, 10 years) - Minchella was sentenced to: seven years' imprisonment on count 1; seven years concurrent on count 2; and three years on each of counts 3 and 4, to be served concurrent to each other and to the sentence on count 1 (total custodial sentence, seven years) - The Ontario Court of Appeal dismissed the accused's sentence appeals - See paragraphs 13 to 16.

Criminal Law - Topic 5631

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Default - Imprisonment - [See Criminal Law - Topic 5628 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5628 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5628 ].

Criminal Law - Topic 5876

Sentence - Forgery - [See Criminal Law - Topic 5628 ].

Income Tax - Topic 9221

Enforcement - Inquiry (incl. audit) - General - [See Civil Rights - Topic 1217 ].

Income Tax - Topic 9307

Enforcement - Search and seizure - Seizure of documents - Whether reasonable - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Jarvis (W.J.) (2002), 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 169 C.C.C.(3d) 1 (S.C.C.), consd. [para. 5].

R. v. Ling (C.K.) (2002), 295 N.R. 273; 169 C.C.C.(3d) 46; 173 B.C.A.C. 161; 283 W.A.C. 161 (S.C.C.), refd to. [para. 5].

Counsel:

Einar Bellfield, appearing in person;

David E. Harris, for the appellant, Minchella;

David Littlefield and Peter DeFreitas, for the respondent.

This appeal was heard on October 6 and 7, 2003, by MacPherson, Sharpe and Cronk, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the court on October 14, 2003.