R. v. Hape (L.R.), (2005) 201 O.A.C. 126 (CA)

• Judge: Doherty, Feldman and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 27, 2005
• Jurisdiction: Ontario
• Citations: (2005), 201 O.A.C. 126 (CA)

R. v. Hape (L.R.) (2005), 201 O.A.C. 126 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JL.067

Her Majesty The Queen (respondent) v. Lawrence Richard Hape (appellant)

Her Majesty The Queen (appellant) v. Lawrence Richard Hape (respondent)

(C39067-C39164)

Indexed As: R. v. Hape (L.R.)

Ontario Court of Appeal

Doherty, Feldman and LaForme, JJ.A.

July 28, 2005.

Summary:

The accused, an investment banker, was convicted on two counts of money laundering contrary to s. 9 of the Controlled Drugs and Substances Act. He was sentenced to 30 months' imprisonment. The Crown sought a forfeiture order of $3 million.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 983, made a forfeiture order of $48,992.75. The accused appealed his conviction and the sentence of imprisonment. The Crown appealed from the trial judge's refusal to make a forfeiture order of $3 million.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - The accused, an investment banker, was convicted of money laundering - On appeal, the accused submitted that the trial judge erred in not excluding evidence seized from his offices on the basis that the Charter did not apply - The trial judge found that the investigation in the Turks and Caicos Islands, including the searches, was under the control of the Turks and Caicos police force, which obtained authorization for all seizures from the Turks and Caicos judicial authorities - He further held that the Canadian police and the Turks and Caicos police were engaged in a "co-operative investigation" - The accused submitted that even if the investigation was a co-operative one in which the Turks and Caicos authorities played a controlling role, the Charter still applied to the conduct of the Canadian authorities - The Ontario Court of Appeal rejected the submission - See paragraphs 7 and 8.

Criminal Law - Topic 1984

Offences against property - Possession or laundering of proceeds of crime - Evidence and proof - The accused, an investment banker, was convicted on two counts of money laundering contrary to s. 9 of the Controlled Drugs and Substances Act (CDSA) - The Crown sought a forfeiture order under s. 462.37(2) of the Criminal Code in the amount of $3,000,000 - The Crown alleged that various assets in the accused's possession represented proceeds from various drug offences and money laundering offences committed by him in the 1980's - The Ontario Court of Appeal held that the trial judge did not err in refusing to order forfeiture in relation to those offences - "Proceeds of crime" as defined in the relevant Criminal Code provisions referred to "a designated substance offence", which was defined as an offence under Part I of the CDSA - The CDSA was not enacted until 1997 - Further, s. 462.37(2) contemplated a nexus between the offence that was the subject of the trial giving rise to the conviction and sentencing proceedings and the property the Crown sought forfeited - However, the property did not have to be the proceeds of the crime for which the accused was convicted - See paragraphs 31 to 42.

Criminal Law - Topic 2805

Jurisdiction - Place of offence - Territoriality - The accused was charged with money laundering - One count charged him with laundering $80,000 U.S. given to him in the Turks and Caicos Islands - The accused applied for a stay of that count on the basis that, having been wholly committed elsewhere, it could not be prosecuted in Canada - In dismissing the application, the trial judge found that the evidence established that the money was purported to be from trafficking heroin in Canada; some of the preparatory activities and arrangements for delivery of the money took place in Canada; and the Turks and Caicos authorities co-operated with the RCMP in the investigation - The Ontario Court of Appeal dismissed the accused's appeal - The offence met the "real and substantial link" test articulated in R. v. Libman (S.C.C.) - See paragraphs 21 to 24.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - An undercover RCMP officer arranged for "sting" money, which he represented to the accused to be the proceeds of heroin trafficking, to be laundered through the accused's investment company in the Turks and Caicos Islands and from there to an account controlled by the undercover officer in a bank in the Netherlands - The accused was charged with money laundering - At trial, after the defence elected not to call any evidence, the Crown applied to re-open its case - The Crown wished to call evidence to explain why the account number in an exhibit was not the same as the account number provided by the undercover officer to the accused - The proposed bank witness would testify that there were two connected police accounts, one in U.S. dollars and the other in Dutch guilders - The first account was to record deposits and the second account was to pay the account expenses - The accounts were, however, connected by the same "SWIFT" number that appeared on the records of both accounts - The trial judge held that the omission or mistake was over a non-controversial issue to do with purely formal procedural or technical matters, having nothing to do with the substance or merits of a case, and granted the Crown's application - On appeal, the accused submitted that the Crown's omission concerned an essential element of the offence, namely, that funds were deposited into the police account - The Ontario Court of Appeal found no basis to interfere with the trial judge's exercise of discretion - See paragraphs 16 to 18.

Criminal Law - Topic 5622

Punishments (sentence) - Forfeiture orders - Proceeds of enterprise crime - [See Criminal Law - Topic 1984 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5972 ].

Criminal Law - Topic 5972

Sentence - Money laundering or proceeds of crime - The accused, an investment banker, was convicted on two counts of money laundering contrary to s. 9 of the Controlled Drugs and Substances Act - He was sentenced to 30 months' imprisonment - The key prosecution witness was an undercover RCMP officer - During a lengthy investigation, the officer arranged for "sting" money, which he represented to the accused to be the proceeds of heroin trafficking, to be laundered through the accused's investment company in the Turks and Caicos Islands and from there to an account controlled by the undercover officer in a bank in the Netherlands - On appeal from sentence, the accused submitted that the fact that there was no actual drug money involved in his offences somehow mitigated his culpability - The Ontario Court of Appeal rejected the submission and dismissed the appeal - See paragraphs 29 and 30.

Evidence - Topic 1600

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Bank records - The accused, an investment banker, was convicted on two counts of money laundering - The trial judge admitted copies of microfilm prints of a Dutch bank's records showing that the accused's company had made deposits into a police account - The bank produced copies rather than originals in order to remove confidential banking information of other account holders - The trial judge was satisfied that the photocopies were sufficiently reliable, and admitted them as business records - The Ontario Court of Appeal held that the trial judge did not err in admitting this evidence - See paragraphs 10 to 15.

Evidence - Topic 3171

Documentary evidence - Copies of documents - General - [See Evidence - Topic 1600 ].

Cases Noticed:

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25; 106 C.C.C.(3d) 508, refd to. [para. 7].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 7].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 89 C.C.C.(3d) 289, refd to. [para. 18].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33; 21 C.C.C.(3d) 206, refd to. [para. 23].

R. v. Tejani (R.A.) (1999), 123 O.A.C. 329; 138 C.C.C.(3d) 366 (C.A.), refd to. [para. 29].

Quebec (Procureur général) v. Laroche et al. (2002), 295 N.R. 291; 169 C.C.C.(3d) 97 (S.C.C.), consd. [para. 42].

R. v. Lore (1997), 116 C.C.C.(3d) 255 (Que. C.A.), consd. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 462.37(2) [para. 34].

Counsel:

Fergus O'Donnell and Cindy Sa, for Her Majesty The Queen;

Alan D. Gold and Gail D. Smith, for Lawrence Richard Hape.

These appeals were heard on June 27, 2005, by Doherty, Feldman and LaForme, JJ.A., of the Ontario Court of Appeal. The court delivered the following reasons for judgment on July 28, 2005.