R. v. Tejani (R.A.), (1999) 123 O.A.C. 329 (CA)

Judge:Osborne, Laskin and Borins, JJ.A.
Court:Ontario Court of Appeal
Case Date:August 26, 1999
Jurisdiction:Ontario
Citations:(1999), 123 O.A.C. 329 (CA)
 
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R. v. Tejani (R.A.) (1999), 123 O.A.C. 329 (CA)

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Temp. Cite: [1999] O.A.C. TBEd. AU.041

Her Majesty The Queen (respondent) v. Roshan Ali Tejani (applicant/appellant)

(C28870)

Indexed As: R. v. Tejani (R.A.)

Ontario Court of Appeal

Osborne, Laskin and Borins, JJ.A.

August 26, 1999.

Summary:

The accused currency exchange dealer was asked by a former drug dealer (turned police agent) to exchange $100,000 into U.S. funds. The accused accepted the money, but before he could convert it he was charged with attempted money laundering contrary to s. 19.2 of the Narcotic Control Act. The ac­cused was convicted and sentenced to two years' imprisonment and fined $20,000. The accused appealed against conviction and sentence. At issue was whether the Crown need only prove that the accused intended to convert one currency into another or whether it must also prove that the accused intended to disguise the origin of the money.

The Ontario Court of Appeal dismissed the conviction appeal, but allowed the sentence appeal and substituted a conditional sentence of two years less a day. The court confirmed the $20,000 fine.

Criminal Law - Topic 2627

Attempts, conspiracies, accessories and parties - Attempts - What constitutes an attempt - The accused was charged with attempting to launder monies derived from drug trafficking contrary to s. 19.2 of the Narcotic Control Act - A police agent gave the accused $100,000 to convert from Canadian to U.S. funds - The accused took the money after advising the agent that his commission was 1%, gave him a receipt and told him to come back later - The accused was arrested before exchanging the currency - The accused submitted that he could not be convicted of attempting to commit the offence, because there was no "attempt" to commit the offence where his actions did not go beyond mere preparation - The Ontario Court of Appeal held that the attempt to commit the offence was complete because the accused's actions were more than merely preparatory - See paragraphs 42 to 44.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - In 1989, the accused exchanged ap­proximately $4,000,000 in drug monies from Canadian to U.S. currency - The accused made approximately $80,000 - In 1991, a former drug dealer acting as a police agent, arranged for the accused to convert $100,000 to U.S. dollars - The accused was convicted of attempting to launder monies obtained by illegal drug trafficking (Narcotic Control Act, s. 19.2) -The conviction was overturned on appeal and the accused was retried and again convicted - For most of the 1990's, the accused was released on bail with con­ditions - He did not violate his bail condi­tions - The trial judge sentenced the 50 year old accused with no previous record to two years' imprisonment plus a $20,000 fine - In doing so, the trial judge noted the accused's future intent to convert larger sums - The Ontario Court of Appeal held that the accused's future intentions were irrelevant - Considering the time the ac­cused's liberty was restricted while on bail, the court substituted a conditional sentence of two years less a day and confirmed the $20,000 fine - See paragraphs 49 to 53.

Criminal Law - Topic 5849.15

Sentencing - Considerations on imposing sentence - Length of time since offence - Bail restrictions - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5972

Sentence - Money laundering (incl. pro­ceeds of crime) - [See Criminal Law - Topic 5720.4 ].

Narcotic Control - Topic 802

Offences - Laundering proceeds of narcotic offences - Elements of offence - Section 19.2(1) of the Narcotic Control Act made it an offence to, inter alia, deal with any property "with intent to conceal or convert that property ... knowing that property ... was obtained ... as the result of the com­mission in Canada of an offence under section 4, 5 or 6" - The Ontario Court of Appeal stated that "the mens rea of s. 19.2 has two parts: to support a conviction the intent to conceal or convert must be ac­companied by the knowledge or belief that the money was derived from the commis­sion of an offence under ss. 4, 5 or 6 of the Act. The two parts of the mens rea must be read together, not separately. A person who converts money from one currency into another believing the money was obtained from drug trafficking should be criminally liable." - The Crown need not prove an intent to disguise or hide the origin of the money - The mens rea could also be satisfied by a finding of wilful blindness as to where the money was obtained - See paragraphs 15 to 38.

Cases Noticed:

United States of America et al. v. Dynar (1997), 213 N.R. 321; 101 O.A.C. 321; 8 C.R.(5th) 79 (S.C.C.), folld. [para. 18, footnote 7].

R. v. Bouchard (1995), 45 C.R.(4th) 55 (Que. S.C.), disagreed with [para. 32, footnote 15].

R. v. Duong (D.T.) (1998), 108 O.A.C. 378; 39 O.R.(3d) 161 (C.A.), refd to. [para. 39, footnote 18].

R. v. Sansregret (1985), 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223 (S.C.C.), refd to. [para. 39, footnote 19].

Statutes Noticed:

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 19.2 [para. 15].

Authors and Works Noticed:

German, Peter, Proceeds of Crime: The Criminal Law, Related Statutes, Regula­tions and Agreements (1998 looseleaf), pp. 6 to 8 [para. 27, footnote 12].

New Oxford Dictionary of English (1998) [para. 28, footnote 13].

Counsel:

Alan D. Gold, for the applicant/appellant;

Beverly J. Wilton, for the respondent.

This appeal was heard on March 25, 1999, before Osborne, Laskin and Borins, JJ.A., of the Ontario Court of Appeal.

On August 26, 1999, Laskin, J.A., de­livered the following judgment for the Court of Appeal.

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