R. v. Sanmugam
Between
Her Majesty the Queen, and
Arvind Sanmugam, Defendant
Arvind Sanmugam, Defendant
[2012] O.J. No. 5647
2012 ONSC 6663
Court File No. CR-12-70000158-0000
Ontario Superior Court of Justice
T. Ducharme J.
November 23, 2012.
Court File No. CR-12-70000158-0000
Ontario Superior Court of Justice
T. Ducharme J.
November 23, 2012.
(81 paras.)
REASONS FOR SENTENCE
T. DUCHARME J.:--
I Introduction
1 Mr.
Sanmugam entered a guilty plea to three counts of fraud contrary to s.
380(1)(a). I sentenced him on November 9, 2012. These are my reasons for
sentence.
II. Position of the Crown
2 The
Crown seeks a penitentiary sentence of three years and, relying on s. 719(3) of
the Criminal Code submits that
Mr. Sanmugam should be given credit for pre-trial custody on a one to one
basis. Ms. David also asks for a restitution order in the amount of $1,109,405.
III. Position of the
Defence
3 The
defence suggests that the appropriate sentence for these offences was two years
less a day to be followed by three years probation. Mr. LaBar did not argue
that Mr. Sanmugam was entitled to enhanced credit for his pre-trial custody.
However, he did emphasize the devastating effects that a sentence of two years
or more would have on Mr. Sanmugam's immigration status. The defence joined in
the request for a restitution order, with Mr. LaBar emphasizing Mr. Sanmugam's
desire to make full restitution to his victims.
IV. Circumstances of the
Offender
4 Mr.
Sanmugam was born in 1960, although his counsel, apparently on Mr. Sanmugam's
instructions, refused to tell me where he was born. I am told Mr. Sanmugam
lived in India from the age of 14. He speaks English and Tamil and he learned
French from 1974 to 1983 at the Alliance Française in India. He claims to have
completed a B.A. in English Literature at Loyola College at the University of
Madras in India. He subsequently enrolled in a M.A. in Public Administration at
the University of Madras but he did not complete this program as he immigrated
to Canada.
5 Mr.
Sanmugam says that he came to Canada in 1985 to avoid any involvement with
Tamil fighters who were active in southern India. He first came to Canada on a
visitor's visa. He later was granted a Temporary Resident Permit which he has
since renewed annually.
6 Mr.
Sanmugam first worked as a night cashier at a Canadian Tire store and as
assistant manager of a muffin shop at Union Station in Toronto. In 1986, he
worked as a waiter at a Red Lobster restaurant and also taught English courses
to new immigrants and refugees in Canada. From 1987 to 1996 his main source of
income was from preparing reports on university and colleges in the US and
Canada for foreign applicants. During this time he also invested in a variety
of businesses in India all of which failed. The rise of the internet put an end
to his university advisory business. From 1996 to 2000, Mr. Sanmugam provided
guided tours for visitors to Toronto. From 2000 to 2005, Mr. Sanmugam continued
to be involved in the tourism business. He did guided tours for people visiting
the Maritimes and Quebec. In 2005, Mr. Sanmugam ran a business helping to
arrange accommodations for new immigrants and refugees to Canada. From 2006 to
2010, Mr. Sanmugam was involved in what Mr. LaBar called "market
commentary." I was not told anything more about this other than this is
the subject of a separate proceeding before the Ontario Securities Commission.
7 In
2007, Mr. Sanmugam invested in a cafe and bakery company that ultimately
failed. He also claimed to be involved with other business ventures. One was
the Canadian Peacemakers Corporation which "sourced equipment to police
training operations worldwide." Another business that he claimed to have
been extensively involved in was the "World Police Academy."
Apparently, he helped develop a police training academy located somewhere in
India. The goal of this was to bring Canadian police forces to India for police
training. I have not been provided with any further details about these
organizations and am skeptical about whether or not they in fact exist.
However, the Crown does not dispute these claims so I will accept them for what
they are worth. I will observe that I find it curious that, if Mr. Sanmugam
played such a pivotal role in an organization such as this, I have received no
letters of support attesting to his good work in these areas.
8 Mr.
Sanmugam claims to have been active in a variety of charitable organizations
including the Word Wildlife Fund in both Canada and India. In 2009, Mr.
Sanmugam claims to have been accepted into the MBA program at HEC [Hautes
Études Commerciales] at the Université de Montréal. He did not complete this
program due to his arrest but he hopes to complete this program after serving
his sentence. Again, I have received no documentation attesting to his
involvement in any of these charitable activities or his studies at HEC.
However, as the Crown has not challenged these submissions, I will accept them
for the purposes of sentencing.
9 Mr.
Sanmugam married a Canadian woman in 1989 and in 1995 they had a boy. In 1998
the couple had a daughter. In 2001 Mr. Sanmugam separated from his wife and
mother of two of his children. In 2002 Mr. Sanmugam began his relationship with
Julie Wingink, another Canadian woman, with whom he still has a relationship.
Ms. Wingink provided a letter of support to the court in these proceedings.
They have had two daughters born in 2003 and 2004.
10 Mr.
LaBar tells me that in addition to completing his MBA, he hopes to pursue
various unspecified entrepreneurial interests after being released from jail.
Mr. Sanmugam also describes himself as a writer and poet and indicates that he
hopes to publish a book when he is released.
V. Circumstances of the Offences
11 Obviously
the facts of the offence are a central consideration in determining the
appropriate sentence in any criminal case. In particular, the nature of the
offence and the accused person's role in the offence are very important in any
assessment of his or her moral culpability.
12 Mr.
Sanmugam held himself out as a licensed and educated "market
commentator" and venture capitalist. He told his victims that he was
educated at Cambridge University in England and that he named his securities
company "Bunting & Waddington" after his favourite professors. He
indicated to his victims that he had staffed his firm with many securities
traders and that he was adept at making money for his clients. He targeted
people who had no financial knowledge and who were not sophisticated in
financial matters. Bunting & Waddington was never properly registered with
the Ontario Securities Commission or with any of the other provincial
securities commissions in Canada. Mr. Sanmugam was not licensed to trade
securities or to offer advice in the trading of securities in any capacity in
the Province of Ontario or anywhere else in Canada.
13 At
the preliminary inquiry, Mr. Douglas Fox, Principal and Chief Compliance
Officer of Risk Management Services Inc., was qualified as an expert in the
area of securities trading and profit analysis with respect to Mr. Sanmugam's
trading for two of the three victims. Mr. Fox noted in his expert report which
was filed as an exhibit at the preliminary inquiry that with respect to the
trading activity for both William and Barbara Blizzard and Tuhina Biswas, there
"does not appear to be any method or system for the trading and it does
not appear to follow any portfolio strategy."
Count 6: Barbara and Bill Blizzard
14 William
and Barbara Blizzard are an elderly retired couple of frugal means who, at the
material time, lived in Barrie, Ontario. They have no investment knowledge and
are not sophisticated in financial matters. In early fall of 2007 the Blizzards
were told of an amazing investment opportunity when Mr. Sanmugam travelled from
Toronto to meet the Blizzards at their home. He told them that if they supplied
him with $100,000, they could expect to make $8,000 profit each month. Their
monthly fee for having Mr. Sanmugam invest their money was $3,500. The
Blizzard's mortgaged their house and gave Mr. Sanmugam a total of $118,700 to
invest at the beginning of September 2007. Over the course of time, the
investment portfolio for the Blizzards made no money and the investment
statements they received indicated that they were trading heavily in margin.
The Blizzard's mistakenly believed that the margin amount (which was in the
hundreds of thousands of dollars) was pure profit so they obligingly paid Mr.
Sanmugam his $3,500 each month. They also withdrew from the capital and further
contributed to the depletion of their investment account because they thought
their portfolio was making the kinds of profits that Mr. Sanmugam promised.
Their withdrawals were made in an effort to pay back the mortgage that the bank
had granted them.
15 In
November of 2008 the Blizzards began to get margin calls from TD Waterhouse
Discount Brokerage where they had their investment portfolio account. They were
not sure what margin calls were, but they became alarmed and tried to get in
touch with Mr. Sanmugam. Mr. Sanmugam would not personally return their phone
calls and instructed his assistant to re-assure them that everything would be
fine. By this time the Blizzards had ceased paying Mr. Sanmugam the $3,500 fee
because they could see that their portfolio was drastically reduced in value.
The couple lost hope and lodged a complaint with the Investment Industry
Regulatory Organization of Ontario ("IIROC"), but they received no
assistance because Mr. Sanmugam was not licensed with this entity. They were
told that their matter was being forwarded to the Ontario Securities Commission
for review. In September of 2010 they read in the newspaper that Mr. Sanmugam
had been arrested by the police in connection with the Zink and Biswas matters.
They immediately filed a complaint with the police but by then there was no
money left in their investment account. The Blizzards sold their house to pay
off their mortgage and now live in rental accommodation. The Blizzard's loss totalled
$118,700.00.
Count 5: Linda Zink
16 Ms.
Zink is an elderly widow who lives in Vancouver, British Columbia. She has no
investment knowledge and was always financially provided for by her late
husband. She met Mr. Sanmugam in the fall of 2008 while she was on a visit to
Toronto. One morning she was walking her grandchildren to Bishop Strachan
School and she met Mr. Sanmugam who was dropping his children off at the same
school. The two became friendly and began to speak with each other. Mr. Sanmugam
told Ms. Zink that he was a professional investor and that if she would entrust
her money with him, he would ensure that she would eventually have all her
bills, credit cards and lines of credit paid off. He also promised her that she
would eventually be able to afford a second residence in Toronto so she would
have her own residence when she visited her grandchildren. Ms. Zink became
interested and began to meet regularly with Mr. Sanmugam to discuss the
investment plan.
17 Mr.
Sanmugam told Ms. Zink that he would have to review her finances and tell her
how much she should invest with him. He also warned her to keep their plans a
secret so that she would not be talked out of the plan by anyone. Over a period
of time, and under Mr. Sanmugam's direction, Ms. Zink transferred a total of
$662,000 to Mr. Sanmugam by liquidating securities portfolios that her deceased
husband had left her and by mortgaging her properties. She conveyed to Mr.
Sanmugam all of her assets in secret. A production order obtained by the police
show the amounts entering Mr. Sanmugam's account and they are then dispersed to
other accounts that he controlled for the purposes of trading or for the
purposes of supporting his other business ventures. Over time, Ms. Zink began
to hear less and less from Mr. Sanmugam and eventually, her son inquired as to
her relationship with Sanmugam and this was when the family discovered that she
had lost her life savings to him.
18 Ms.
Zink initiated civil proceedings against Mr. Sanmugam in April of 2009. Her
total loss as a result of Mr. Sanmugam's fraud was $662,000.00
Count 7: Tuhina Biswas
19 Dr.
Tuhina Biswas met Mr. Sanmugam on the "e-harmony" dating website in
October of 2008. Mr. Sanmugam held himself out as a venture capitalist and owner
of the securities investment firm Bunting & Waddington. He told Dr. Biswas
that he had two degrees - one in English literature from Cambridge University
in England, two MBA degrees as well as the Certified Financial Analyst
designation. He also told Dr. Biswas that he had a PhD in Abstract Analysis.
None of this was true. Sanmugam told her that he usually generated $150,000 a
month from trading for his clients.
20 Sanmugam
suggested that Dr. Biswas invest with him in an investment plan that would assist
her in the financial support of her disabled brother. At the material time, Dr.
Biswas' mother and brother lived in the house that her deceased father had
provided from his life savings. There was no mortgage on the home prior to Dr.
Biswas' involvement with Sanmugam. Dr. Biswas' brother requires almost $5,000
monthly in special care and medications and Sanmugam assured that his
investment skills could easily provide that kind of financial support. In March
of 2009, Sanmugam convinced Dr. Biswas to invest with him and at his urging,
she opened an online trading portfolio with TD Waterhouse Brokerage. In order
to provide capital for the investment, Dr. Biswas and her mother mortgaged
their home and with the proceeds of that mortgage, they gave Mr. Sanmugam
$328,705 to invest. Even though she is trained as a medical doctor, Dr. Biswas
has no financial background and is an unsophisticated investor. Dr. Biswas'
mother, Chitra, is a retired teacher and has no investment knowledge either.
21 Mr.
Sanmugam continually told Dr. Biswas that her portfolio was profitable and that
he was investing in reliable blue chip investments that provided predictable
dividends. However, in reality, Sanmugam was trading on margin for the Biswas
account and like the Blizzards, Dr. Biswas did not understand trading on margin
and thought the sums in her margin account were profits instead of debt. Dr.
Biswas withdrew cash from the capital in her investment portfolio under the
belief that she was not depleting capital but only taking profit from dividend
returns. Sanmugam would often move sums of money from the discount brokerage
account into Dr. Biswas' chequing account or her mother's account and tell them
these sums were profits that they could withdraw and spend in whichever way
they wished. Sanmugam was able to do this because he had the password to
Biswas' account.
22 At
the same time and during the course of her relationship with Sanmugam, Dr.
Biswas also lent him money to assist him with his many problems. In April of
2009 she learned that Mr. Sanmugam was being sued by Linda Zink so Dr. Biswas
lent him money to assist with the legal bills from that lawsuit. Dr. Biswas
also lent Mr. Sanmugam money to assist in his start up coffee company, Chez Lee
Loo in India. Dr. Biswas estimates that she gave Mr. Sanmugam $170,000 in funds
over and above the funds from the mortgaged home.
23 By
November of 2009, Dr. Biswas' trading account had been seriously depleted of
funds. In June of 2010, Dr. Biswas learned from a friend that Mr. Sanmugam had
approached her friend on the same internet dating website which she found
disturbing because in January of 2010, Sanmugam had asked her to marry him. Dr.
Biswas became extremely concerned once Sanmugam was charged in May of 2010 with
the fraud against Zink and around that same time she learned that Sanmugam was
living in a common-law relationship with Julie Winget and that he had two
children with her. She filed a report against Sanmugam with the police at the
end of July 2010. Dr. Biswas' loss as a result of Mr. Sanmugam's fraud was
$328,705.00.
VI. Relevant Principles of
Sentencing
24 The
purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the
fundamental purpose of sentencing is to foster respect for the law and to
maintain a just, peaceful and safe society. The court attempts to achieve this
purpose by imposing just penalties that have one or more of the following
objectives:
denouncing unlawful
conduct [s. 718(a)];
deterring this offender
and others from committing offences [s. 718(b)];
imprisoning offenders
where necessary to separate them from law abiding members of society [s.
718(c)];
assisting in
rehabilitating offenders and in appropriate circumstances encouraging their
treatment [s. 718(d)];
providing reparation
for harm done to victims of the community [s. 718(e)]; and
promoting in offenders
a sense of responsibility for and acknowledgement of the harm they have done to
victims and to the community [s. 718(f)].
25 Section
718.1 of the Criminal Code
provides that the fundamental principle of sentencing is that a sentence must
be proportionate to the gravity of the offence and to the degree of
responsibility of the offender. Section 718.2 of the Criminal Code also
requires the court to take into account other principles, including these:
that a sentence may be
increased or decreased depending upon the presence of any relevant aggravating
or mitigating circumstances relating to the offence or to the offender [s.
718.2(a)];
that a sentence should
be similar to those imposed on similar offenders for similar offences committed
in similar circumstances [s. 718.2(b)];
where consecutive
sentences are imposed, the combined sentence should not be unduly long or harsh
[s. 718.2(c)];
26 In
R. v. Nasogaluak, [2010] 1
S.C.R. No. 206 the Court held at para. 43:
· The language in ss. 718 to 718.2 of the Code is sufficiently general
to ensure that sentencing judges enjoy a broad discretion to craft a sentence
that is tailored to the nature of the offence and the circumstances of the
offender. The determination of a "fit" sentence is, subject to some
specific statutory rules, an individualized process that requires the judge to
weigh the objectives of sentencing in a manner that best reflects the
circumstances of the case. [Citations omitted.] No one
sentencing objective trumps the others and it falls to the sentencing judge to
determine which objective or objectives merit the greatest weight, given the
particulars of the case. The relative importance of any mitigating or
aggravating factors will then push the sentence up or down the scale of
appropriate sentences for similar offences. The judge's
discretion to decide on the particular blend of sentencing goals and the
relevant aggravating or mitigating factors ensures that each case is decided on
its facts, subject to the overarching guidelines and principles in the Code and
in the case law. [Emphasis added.]
27 The
Courts have often emphasized, most recently in R. v.
Drabinsky, that the dominant sentencing objectives in
cases of large scale commercial fraud must be denunciation and deterrence.
Given that the loss to the victims in this case totalled more than 1 million
dollars, I think the same objectives are most important in this case. I will
discuss each of these principles in turn.
Denunciation
28 Denunciation
as a principle of sentencing was explained by Chief Justice Lamer in R. v. C.A.M., [1996] 1 S.C.R. No. 500
(S.C.C.) at para. 81:
· Retribution, as well, should be conceptually distinguished from its
legitimate sibling, denunciation. Retribution requires that a judicial sentence
properly reflect the moral blameworthiness of that particular offender. The
objective of denunciation mandates that a sentence should also communicate
society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic,
collective statement that the offender's conduct should be punished for
encroaching on our society's basic code of values as enshrined within our
substantive criminal law. As Lord Justice Lawton stated
in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through
the courts, must show its abhorrence of particular types of crime, and the only
way in which the courts can show this is by the sentences they pass". The
relevance of both retribution and denunciation as goals of sentencing
underscores that our criminal justice system is not simply a vast system of
negative penalties designed to prevent objectively harmful conduct by
increasing the cost the offender must bear in committing an enumerated offence.
Our criminal law is also a system of values. A sentence which expresses
denunciation is simply the means by which these values are communicated. In
short, in addition to attaching negative consequences to undesirable behaviour,
judicial sentences should also be imposed in a manner
which positively instills the basic set of communal values shared by all
Canadians as expressed by the Criminal Code.
· [Emphasis added.]
29 In
Drabinsky, the Court of Appeal
made it clear at para 162 that the quantification of an appropriate sentence in
a case such as this requires a consideration of denunciation. Specifically they
linked the length of the sentence to its denunciatory effect. In this case, an
appropriate sentence must denounce criminal conduct that targets vulnerable
investors, that defrauds them of their life savings and has the potential of
undermining confidence in the financial services sector.
Deterrence
30 Justice
Charron explained deterrence as a sentencing principle in R. v. B.W.P., [2006] 1 S.C.R. No. 941
(S.C.C.) at para. 2:
· Deterrence, as a principle of sentencing, refers to the imposition
of a sanction for the purpose of discouraging the offender and others from engaging
in criminal conduct. When deterrence is aimed at the offender before the court,
it is called "specific deterrence", when directed at others,
"general deterrence". ... General deterrence is intended to work in
this way: potential criminals will not engage in criminal activity because of
the example provided by the punishment imposed on the offender. When general
deterrence is factored in the determination of the sentence, the offender is
punished more severely, not because he or she deserves it, but because the
court decides to send a message to others who may be inclined to engage in
similar criminal activity.
31 Given
the nature of this offence and its surrounding circumstances, Mr. Sanmugam's
lack of any marketable skills and his apparent intention to continue in the
business world, I think Mr. Sanmugam presents a significant risk of
re-offending. Thus, specific deterrence is certainly relevant to the sentence I
must impose.
32 As
for general deterrence, I recognize that the theory behind general deterrence
has been questioned in some contexts.1 Critics of
general deterrence question its validity on the basis that: (1) many crimes are
relatively spontaneous and the offender does not stop beforehand to consider
the possibility of being punished; (2) offenders are not aware of sentences
imposed for particular crimes so the quantum of a sentence will not have a
deterrent effect; and (3) even if an offender was aware of the range of
sentences imposed for a particular crime, they would discount that range by the
risk of discovery, apprehension and actual prosecution.
33 Despite
these criticisms, general deterrence remains one of the objectives of
sentencing that Parliament has prescribed in s. 718 of the Criminal Code. In
fact, in my view, general deterrence is one of the principal sentencing
objectives in cases like this. Moreover, the above criticisms have little or no
applicability to cases of this nature: (1) Financial frauds of this nature are
rarely, if ever, spontaneous crimes. (2) The persons committing these crimes
usually do so after careful and detailed advance planning. This will often
involve a cost-benefit analysis on the part of the fraudster. Thus, the
imposition of significant sentences for such crimes by increasing the cost of punishment
can alter that calculus and deter the fraud; and (3) Eventually almost all
frauds of this nature will be discovered as the money required to maintain the
illusion of a successful investment program will run out. When this happens
even financially unsophisticated victims are likely to realize that they have
been swindled, and given the stakes involved, they are likely to go to the
authorities. If the fraudster is apprehended the chances of a successful
prosecution are high given the paper trail that will have been left behind.
34 For
all of these reasons I am of the view that general deterrence is particularly
effective when dealing with criminals who are prepared to engage in
large-scale, sophisticated financial frauds. Indeed, the Court of Appeal came
to a similar conclusion in Drabinsky at para 159 where they stated:
· The deterrent value of any sentence is a matter of controversy and
speculation. However, it would seem that if the prospect of a long jail
sentence will deter anyone from planning and committing a crime, it would deter
people like the appellants who are intelligent individuals, well aware of
potential consequences, and accustomed to weighing potential future risks
against potential benefits before taking action
35 Not
only is general deterrence effective in this area but it is a critical
sentencing objective given the impact of such crimes. These crimes not only
victimize the direct victims and their extended families but they also have the
potential to undermine public confidence in the financial industry more
generally.
VII. The Appropriate
Sentence
The Relevance of Mr.
Sanmugam's Immigration Status
36 I
was initially told that if Mr. Sanmugam received a sentence of less than two
years that he might be able to avoid deportation. As this was not my
understanding of the law, I asked Mr. LaBar to provide some clearer information
about the impact of this conviction and any sentence imposed on Mr. Sanmugam's
immigration status.
37 The
relevant portions of section 36 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 [IRPA] provide as follows:
· Serious criminality
36.(1) A permanent resident or a foreign national
is
inadmissible on grounds of serious criminality for
inadmissible on grounds of serious criminality for
having been convicted
in Canada of an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years, or of an offence under an Act of Parliament
for which a term of imprisonment of more than six months has been imposed;
...
· Criminality
· 36(2) A foreign national is inadmissible on grounds of criminality
for
having been convicted
in Canada of an offence under an Act of Parliament punishable by way of
indictment, or of two offences under any Act of Parliament not arising out of a
single occurrence; ...
· Application
· 36(3) The following provisions govern subsections (1) and (2):
an offence that may be
prosecuted either summarily or by way of indictment is deemed to be an
indictable offence, even if it has been prosecuted summarily;
inadmissibility under
subsections (1) and (2) may not be based on a conviction in respect of which a
record suspension has been ordered and has not been revoked or ceased to have
effect under the Criminal Records Act, or in respect of which there has been a
final determination of an acquittal;
the matters referred to
in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute
inadmissibility in respect of a permanent resident or foreign national who,
after the prescribed period, satisfies the Minister that they have been
rehabilitated or who is a member of a prescribed class that is deemed to have
been rehabilitated;
a determination of
whether a permanent resident has committed an act described in paragraph (1)(c)
must be based on a balance of probabilities;
38 This
makes it clear that the mere fact of being convicted of fraud contrary to s.
380 of the Criminal Code renders
Mr. Sanmugam criminally inadmissible to Canada. This is true regardless of the
sentence I impose.
39 The
range of sentence does have a limited impact however due to the operation of s.
64 of IRPA which provides:
No appeal for
inadmissibility
· No appeal may be made to the Immigration Appeal Division by a
foreign national or their sponsor or by a permanent resident if the foreign
national or permanent resident has been found to be inadmissible on grounds of
security, violating human or international rights, serious criminality or
organized criminality.
Serious
criminality
· For the purpose of subsection (1), serious criminality must be with
respect to a crime that was punished in Canada by a term of imprisonment of at
least two years.
40 Thus,
if Mr. Sanmugam receives a sentence of more than two years, neither he nor his
sponsor would not have the opportunity to appeal a decision denying his
application for an immigrant visa to the Appeal Division of the Immigration and
refugee Board. This is the only negative consequence that would flow from the
imposition of such a sentence.
41 In
considering the relevance of this fact I note that in R
v Hamilton (2004), 189 O.A.C. 90 at para. 158 Justice
Doherty said the following:
· I would not characterize the loss of a potential remedy against a
deportation order that might be made a mitigating factor on sentence. I do think, however, that in a case like Ms. Mason's there is room
for consideration of the potentially added risk of deportation should the
sentence be two years or more. If a trial judge were to
decide that a sentence at or near two years was the appropriate sentence in all
of the circumstances for Ms. Mason, the trial judge could look at the
deportation consequences for Ms. Mason of imposing a sentence of two years less
a day as opposed to a sentence of two years. I see this
as an example of the human face of the sentencing process. If the future
prospects of an offender in the circumstances of Ms. Mason can be assisted or
improved by imposing a sentence of two years less a day rather than two years,
it is entirely in keeping with the principles and objectives of sentencing to
impose the shorter sentence. While the assistance afforded to someone like Ms.
Mason by the imposition of a sentence of two years less a day rather than two
years may be relatively small, there is no countervailing negative impact on
broader societal interests occasioned by the imposition of that sentence.
[Emphasis added.]
42 Thus,
it is clear that the loss of this appeal right under s. 64(1) of IRPA is not a mitigating factor on sentence.
Nonetheless, this factor move one to impose a sentence of two years less a day
in a case where a sentence of "at or near two years" was otherwise
appropriate. As will become apparent in the balance of my reasons, given the
gravity of Mr. Sanmugam's crimes, I believe a two year sentence would be
manifestly unfit. Thus, I need not consider any further the loss of an appeal
right pursuant to s. 64 of the IRPA.
Mitigating Factors
43 I
consider the following to be mitigating factors in this case:
Mr. Sanmugam has no
prior criminal record;
Mr. Sanmugam has lived
in Canada since 1985.
Prior to coming to
Canada Mr. Sanmugam learned to speak French
Since his arrival in
Canada, Mr. Sanmugam appears to have been steadily employed. In addition to
working for others he has an entrepreneurial streak and it appears that he has
been engaged in some legitimate business although his counsel concedes his
entrepreneurial efforts have tended to fail.
Mr. Sanmugam purports
to be an educated man. He claims to have a B.A. from Loyola College in India
but I was provided no proof of this degree. Mr. Sanmugam also claims to be
pursuing a graduate degree in business. At first I was told that this was at
McGill University but then Mr. Sanmugam corrected his counsel and explained
that it was actually at HEC Montréal. Once again, I was provided with no
evidence that Mr. Sanmugam was ever actually a student there. Given Mr.
Sanmugam's other dishonest claims about his educational background, I cannot
help but view these claims with some healthy scepticism. However, as the Crown
does not dispute these assertions, I will accept them as facts for the purposes
of sentencing. However, it is clear that Mr. Sanmugam has not been pursuing his
studies at HEC Montréal during the two years he is in custody and given the
sentence I am going to impose and his immigration situation, I strongly suspect
his studies at HEC Montréal are unlikely to resume.
Mr. Sanmugam has a
relationship with a Canadian woman, Julie Winget, who is the mother of two of
his children. Despite the nature of these offences and, in particular, Mr.
Sanmugam's involvement with several other women, Ms. Winget wishes to continue
her relationship with Mr. Sanmugam and she filed a letter of support with the
court.
I accept that his plea
has saved the necessity of a trial that counsel claim may have lasted three
weeks. It has also spared some elderly victims from having to testify and
undergo cross-examination. However, I do not view this plea as a sign of
genuine remorse. Rather I think it constitutes acquiescence to the inevitable.
The plea came late in the day and the timing of it was clearly motivated by a
desire to avoid the immigration consequences of a sentence of over two years. I
do not think there would have been any difficulty with proving Mr. Sanmugam's
guilt with respect to these charges.
44 This
suggestion of remorse is significantly undercut by Mr. Sanmugam's composition
"A Pig in Turd" a work that I would not dignify with the term poem.
This vulgar drivel was an attack on his former assistant who was a complainant
in other charges that have been withdrawn against Mr. Sanmugam and who had
co-operated with the police investigators. His suggestion that her co-operation
with the authorities "betrayed his love" and "demonstrated her
evil" is not consistent with any genuine remorse. I accept Mr. LaBar's
point that this was written several months prior to Mr. Sanmugam's decision to
enter a guilty plea. But for Mr. Sanmugam's perspective to have so completely
changed in only 3 or 4 months would require a conversion that would rival that
of the Apostle Paul on the road to Damascus. I find any such suggestion
farcical. But while I do not think Mr. Sanmugam has any genuine remorse, I do
not regard this as an aggravating circumstance. Rather it is merely the absence
of a mitigating factor that might have suggested potential for his long term
rehabilitation.
Aggravating Factors
45 I
consider the following to be aggravating factors in this case:
(a) The Quantum of the Fraud
46 The
total amount of the fraud by Mr. Sanmugam was $1,109,405. The Criminal Code was amended in 2004 to address
sentencing in cases of financial fraud. As a result of these amendments various
aggravating circumstances were added including 380.1(1)(a) the fact that the
value of the fraud exceeded one million dollars. This amount alone makes it
clear that it is a significant financial fraud.
Breach of Trust
47 In
presenting himself as a qualified financial planner, Mr. Sanmugam placed
himself in a position of trust with respect to his victims. His fraud
constitutes a serious breach of that trust.
Number of Victims
48 Mr.
Sanmugam defrauded four people, Mr. and Mrs. Blizzard, Ms. Zink, and Dr. Biswas
over three discrete, consecutive periods of time. Not only did this have a
significant impact on the immediate victims but it also had an impact on their
victims. While this may not be the "large number of victims" referred
to in s. 380.1(1)(c) of the Criminal Code I still regard this as an aggravating circumstance.
Not a Spontaneous Crime
49 This
was not a spontaneous crime but one that involved advance planning and a
continuing effort to deceive. Not only is it a crime of dishonesty but it is
one of considerable duration. The defrauding of the Blizzards took place over
at least a 13 month period. The defrauding of Ms. Zink took place over a period
of several months. The defrauding of Dr. Biswas took place over approximately 8
months and might have gone on longer if her trading account was not so depleted
of funds by that time. Indeed, the defrauding of the immediate victims in this
case took place over a period of two years.
Crime of Greed
50 This
was a crime of greed designed solely for the benefit of Mr. Sanmugam. I
categorically reject the suggestion that Mr. Sanmugam was merely an unlucky
financial adviser. In this regard I note that he lied about his expertise -
holding himself out as a licensed and educated "market commentator"
and venture capitalist. He lied about his fictitious securities company
"Bunting & Waddington" and in particular about the fact that it
was staffed by many securities traders. There is no suggestion that anyone else
was involved in this crime or knowingly shared in the proceeds of it. Finally,
as Mr. Fox the expert retained by the Crown observed with respect to the
trading activity for the Blizzards and Dr. Biswas there "does not appear
to be any method or system for the trading and it does not appear to follow any
portfolio strategy."
Callous Nature of the
Fraud
51 This
was a particularly calculated and callous fraud. Mr. Sanmugam targeted people
who had no financial knowledge and who were not sophisticated in financial
matters. In the case of the Blizzards and Ms. Zink, Mr. Sanmugam targeted
elderly people whose vulnerability was increased by their age and, in the case
of the Blizzards, their financial situation. I note with the aging of our
population that more and more people may find themselves in a similar position
as the Blizzards or Mrs. Zink. The targeting of such vulnerable persons is an
especially aggravating circumstance.
The scope and nature of
that dishonesty.
52 While
all frauds involve dishonesty Mr. Sanmugam's frauds are striking for the scope
and nature of that dishonesty. He told outlandish untruths about himself and
told similarly egregious lies about his fictitious company.
53 As
for the nature of his dishonesty, Mr. Sanmugam was extraordinarily
manipulative. The Blizzards were an elderly couple of limited means whose only
real asset was the home in which they lived. Mr. Sanmugam exploited their wish
for a more comfortable retirement in persuading them to mortgage their home and
invest the proceeds to him. He also suggested that by investing with him they
could help finance post-secondary education for their grandchildren. Linda Zink
was an elderly widow with grandchildren in Toronto. She met Mr. Sanmugam when
they were both dropping off their grandchildren at Bishop Strachan School. Mr.
Sanmugam exploited that connection to her grandchildren suggesting that if she
invested with him would permit her to eventually afford to purchase a second
residence in Toronto where she could stay when she came to visit her
grandchildren. Mr. Sanmugam persuaded her to keep this investment activity a
secret. With Dr. Biswas he learned that she had a disabled brother whose care
cost almost $5,000 per month. He suggested to her that investing with him would
be a way to secure the necessary financing for his ongoing care.
54 As
if the foregoing was not bad enough, the extent to which he was prepared to go
is demonstrated by the fact that he asked Dr. Biswas to marry him. This was
clearly just another way of manipulating her. At the time he was in a
relationship with Ms. Winget, the mother of two of his children, as well as
approaching at least one other woman on an internet dating website. While this
deception was thoroughly reprehensible it was effective. Dr. Biswas lent Mr.
Sanmugam money to defend a lawsuit brought by Linda Zink, one of his other
victims. She also lent him money that was putatively to be used to start up a
coffee company in India.
55 The
nature and quality of these crimes is the most powerful and reliable indicator
of Mr. Sanmugam's character.
Devastating Impact on
the Victims
56 The
effect on all of the victims in this case was devastating as is powerfully made
clear in their victim impact statements. The Blizzards lost the home they were
going to spend their retirement in and the funds they were going to live on. It
has been an enormous stress on their relationship. Mr. Blizzard blames himself
for making the mistake of investing with Mr. Sanmugam and both Mr. and Mrs.
Blizzard are taking medication for nerves. The effects of the fraud are that
much worse given their age and financial situation.
57 Ms.
Zink was 69 years old when she fell prey to Mr. Sanmugam. Her victimization has
resulted in a serious decline in her health, both emotionally and physically.
It has also had a serious impact on both Ms. Zink and her family. I could do no
better than to quote her victim impact statement:
· Arvind Sanmugam robbed me of all my monies, $662,000 four years ago.
I was 69 years old. The emotional loss my family and I have suffered is
horrific and ongoing and will be for the rest of our lives. For the past four
years my pride, my dignity, my self-worth, my confidence and my health have
been irrevocably damaged. Arvind Sanmugam has destroyed my spirit.
· My family's love and respect for me, their Mother, is diminished.
They do not trust me to make financial decisions on my own. My son said:
"Our lives have been changed forever. You didn't ask us for our advice
when Sanmugam was telling you to go to the bank and secure a mortgage on your
home in Vancouver. Nor did you ask us for our advice, when Sanmugam ordered you
to sell your entire stock portfolio, and transfer the funds to him". Over
a period of five months, beginning in October 2008, Sanmugam relentlessly took
me down.
· Daily I have feelings of embarrassment. On many occasions I have
felt suicidal. Every day I try to hold my head up and be brave. Daily I have to
make a concerted effort to gain back my family's trust, love and respect for
me, their Mother. Sanmugam's devastating crime has caused unalterable damage to
me and my family. My adult children are scornful of me and they struggle with
having to accept their Mother's stupidity. I have always been a trusting,
happy, enthusiastic, friendly and open person. I had no idea what it meant to
be the victim of such a terrible crime. I continually suffer from anger and
anxiety.
· ...
· I am a woman, aged 73. I am now living the final chapter of my life.
Before I met Arvind Sanmugam I was a very enthusiastic, energetic and positive
person. Then Sanmugam stole all my money. I am now emotionally and financially
depleted. I have no confidence and am demoralized and suffer from ill health.
My three young adult children have been living the last four years of their
lives in shock, sadness and disappointment in their Mother. I live with ongoing
feelings of shame, disgust, anger and repulsion against Arvind Sanmugam. For
me, it is often too much to bear.
58 Ms.
Zink has also had to share the family home that she had lived in with her late
husband. Her children have also incurred over $80,000 in legal fees in an
unsuccessful attempt to recoup the money from Mr. Sanmugam.
59 As
for Dr. Biswas she has suffered an enormous sense of emotional loss and
betrayal having been defrauded by a man that she thought she was going to marry
in August, 2010. As a result of this fraud Dr. Biswas' mother has a mortgage on
her home in the amount of $328,705.00 and is continuing to work even though she
is now 69 years of age. Dr. Biswas has also had to pull her disabled brother
out of the private day care he used to attend as they can no longer afford to
send him there. She also has had to rent out her condo and live with her mother
to save money. Her lifestyle has been dramatically changed and she has had to
significantly adjust her plans for the future including when she will retire.
(i) No Restitution and No Realistic Prospect of
Restitution
60 Mr.
Sanmugam's victims have lost $1,109,405 as a result of these frauds. Mr.
Sanmugam claims that he is determined to make full restitution. While both
parties have requested a restitution order and I will make such an order, I do
not think there is any realistic chance that Mr. Sanmugam will pay back any of
the money he has taken from his victims. His protestations to the contrary are
empty promises that are no more credible that all the other untruths he has
told. Even, if Mr. Sanmugam is permitted to remain in Canada, a situation that
I view as extremely unlikely, I see no way that he will ever be able to earn
sufficient money to make restitution. He has no marketable skills and has never
demonstrated an ability to succeed honestly in business. Of course, if Mr.
Sanmugam is deported from Canada and is not permitted to return, these already
miniscule prospects of restitution will completely evaporate.
61 For
all these reasons, I do not think the position of the Crown adequately meets
the necessary sentencing objectives. Indeed, in my view a sentence of three
years is woefully inadequate for a financial fraud of this nature. The fact
that a crime is a white-collar crime does not make it any less serious or
deserving of a lighter sentence. While the sentence I impose will not restore
the victims to the situation they were in, sadly no sentence can do that, it
can send a clear message to other potential fraudsters in our community. That
message is that they will be caught and, when they are brought before our
courts, they will receive the harsh punishment they deserve.
Should a Compensation
Order Be Made?
62 As
I have already noted both parties agreed that I should make a restitution order
s. 738(1)(a) of the Criminal Code ordering Mr. Sanmugam to repay each of his victims the entire
amount of their losses. Consequently neither party made submissions with
respect to the propriety of making such an order in this case. I later alerted
the parties to the decisions of the Court of Appeal in R.
v. Taylor (2003), 179 O.A.C. 285 in which the Court
declined to make a restitution order because the accused had no hope of
repaying the amount of the fraud and such an order would impair his
rehabilitation. As I was of the view that Mr. Sanmugam will not be able to make
restitution, I invited counsel to make further submissions to me. Both counsel
have reviewed the relevant case law and in their submissions to the court they
have reiterated their joint position that a restitution order is appropriate in
this case.
63 In
R. v. Taylor (2003), 179 O.A.C.
285, the case that gave me pause, the appellant a pathological gambler
defrauded his employer of $4,000,000 over a two year period. The trial judge
recognized that the appellant would never be able to repay even a minute part
of the loss but made the order to save his employer the extra expense of civil
litigation to recover these monies. The court noted that a restitution order is
a discretionary order and "should only be made with restraint and caution
and not only in order to avoid putting the victim through the extra legal
expense of going to the civil courts or as a substitute for civil
procedure."2 They quoted with approval the comments of Justice Martin in R. v. Schreyer (1984), 16 C.C.C. (3d) 30 at
38, "It may be that in some cases it would be inappropriate to make a
compensation order in an amount that is unrealistic to think that the accused
could ever discharge." In the circumstances of the case the court
concluded at para. 9:
· There is no ability, as noted by the trial judge, to pay even the
most minute part of this staggering amount, with no expiry date. It would kill
all hope for the appellant for the future and it would likely impair his
chances of rehabilitation. The order is clearly excessive and futile and the
trial judge erred in that regard.
64 While
Taylor would not pose a problem
in cases where the accused has the assets to make restitution, it suggests a
more careful analysis must be made in a case such as this.
65 Similarly,
in R. v. Gallagher (2008), 238
O.A.C. 153 the appellant was convicted of six counts of fraud relating to his
defrauding a bank of $19,542.42. This case makes it clear why I asked for and
received further submissions of counsel. In Gallagher the Court of Appeal set aside the restitution order saying at para
15:
· The sentencing judge's reasons contain no explication of the basis
for the restitution order. More importantly, it does not appear that the
sentencing judge considered the appellant's ability to make restitution prior
to the imposition of the restitution order. Nor, on the record before us, does
it appear that any submissions were made to the sentencing judge concerning the
appellant's means or that the sentencing judge was otherwise provided with any
information about the appellant's personal financial circumstances. This court
has indicated that while the ability to pay is not a precondition to the making
of a restitution order, it is a factor, among others, to be considered by a
sentencing judge in determining whether to impose the obligation to make
restitution. See for example, R. v. Perciballi (2001), 154 C.C.C. (3d) 481
(Ont. C.A.); and R. v. Devgan (1999), 136 C.C.C. (3d) 238 (Ont. C.A.). In these
circumstances, we are of the view that the restitution order cannot
stand.
66 In
R. v. Biegus (1999), 127 O.A.C.
239, Feldman J.A. at para. 15 explained the possible impact of a restitution
order on rehabilitation as follows:
· A restitution order made by a sentencing court survives any
bankruptcy of the accused: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3,
s. 178(1)(a). Therefore, it is there for life. It is not intended to be such a
burden that it may affect the prospects for rehabilitation of the accused. That
is why ability to pay is one of the factors which the court must consider.
67 The
Court in Biegus also emphasized
that a restitution order for the entire amount of a loss may not be appropriate
where the proceeds of the crime were shared amongst several perpetrators.
68 In
R. v. Devgan, (1999), 44 O.R.
(3d) 161 (C.A.) Labrosse J.A. at pp. 168 to 169 set out a non-exhaustive list
of factors relevant to the proper exercise of discretion with respect to the
making of a restitution order pursuant to s. 725(1) of the Criminal Code, the predecessor to s. 738(1):
An order for
compensation should be made with restraint and caution;
The concept of
compensation is essential to the sentencing process:
it emphasizes the
sanction imposed upon the offender;
it makes the accused
responsible for making restitution to the victim;
it prevents the
accused from profiting from crime; and
it provides a
convenient, rapid and inexpensive means of recovery for the victim;
A sentencing judge
should consider:
the purpose of the
aggrieved person in invoking s. 725(1);
whether civil
proceedings have been initiated and are being pursued; and
the means of the
offender.
A compensation order
should not be used as a substitute for civil proceedings. Parliament did not
intend that compensation order would displace the civil remedies necessary to
ensure full compensation to victims.
A compensation order is
not the appropriate mechanism to unravel involved commercial
transactions.
A compensation order
should not be granted when it would require the criminal court to interpret
written documents to determine the amount of money sought through the order.
The loss should be capable of ready calculation.
A compensation order
should not be granted if the effect of provincial legislation would have to be
considered in order to determine what order should be made.
Any serious contest on
legal or factual issues should signal a denial of recourse to an order.
Double recovery can be
prevented by the jurisdiction of the civil courts to require proper accounting
of all sums recovered; and
A compensation order
may be appropriate where a related civil judgment has been rendered
unenforceable as a result of bankruptcy.
69 Justice
Labrosse added at p. 169:
· None of these considerations by themselves are determinative of
whether a compensation order should be granted. The weight to be given to
individual considerations will depend on the circumstances of each case. Nor is
the preceding list intended to be exhaustive. Indeed, other relevant
considerations may arise in future cases.
70 The
next important discussion of the law relating to restitution orders was R. v. Castro 2010 ONCA 718. In Castro, Weiler J.A. reiterated the importance
of the principles summarized in Taylor but also added a number of important considerations to those set
out in earlier cases. First, at para 23 she emphasized that a restitution order
should not be made as "a mechanical afterthought" saying:
· Care must be taken not to simply add a restitution order to a
sentence of imprisonment which, in itself, is a fit punishment for the crime,
as this can amount to excessive punishment and offend the totality
principle.
71 Second,
Justice Weiler stressed the importance of the impact on the victim and
suggested that a restitution order may be more appropriate where the victim is
not a large institution and its loss is not insured. In particular, at para.
32, she mentioned "situations where disabled or elderly persons have lost
their ability to earn income and to replace the money taken." Referring to
the decision of Martin J.A. in Sherer, Weiler J.A. noted that "Restitution in that case recognized
the victims' needs and at the same time underlined the larger social interest
in the imposition of a sanction related to the crime."
72 Perhaps
most important is Justice Weiler's discussion of the offender's ability to pay.
First, at para 33, she squarely addressed a central question in this regard
"what has happened to the money that was taken illegally, and how this
evidence factors into a determination of the ability to pay." She
continued in para 34:
· Ability to pay must take into consideration what disclosure has been
made respecting where the money is or has gone. Depriving the offender of the
fruits of his crime is one of the overarching goals of making a restitution
order: ... In cases of theft, robbery, fraud, breach of trust or the like, I
see no reason why the court should accept an offender's bald assertion that he
or she has no ability to make restitution because the money "is gone"
when no evidence is proffered in support of this assertion. When the victims
can clearly establish that "the replacement value of the property"
under s. 738(1)(a) is the amount of money taken, surely it is the offender
asserting that he or she has no ability to make restitution who is in the best
position to provide transparency concerning what has happened to that money. A
bald assertion that the money is gone should be given no weight. Similarly,
when the location of the money illegally obtained by the offender is unknown,
the sentencing judge is entitled to take that fact into account with respect to
ability to pay in making a restitution order: [Emphasis added; citations
omitted]
73 She
also emphasized that a consideration of ability to pay should take into account
not only the offender's present income but also his future earning ability as
well as any assets controlled by him.
74 Finally,
at para 35 Justice Weiler emphasized that "When the offence involves a
breach of trust, a primary consideration is the effect on the victim;
rehabilitation is a secondary consideration." This perspective supports
her earlier conclusion at para 28:
· in cases involving breach of trust, the paramount consideration is
the claims of the victims: ... Ability to pay is not the predominant factor.
Indeed, where the circumstances of the offence are particularly egregious, such
as where a breach of trust is involved, a restitution order may be made even
where there does not appear to be any likelihood of repayment. [Emphasis added;
citations omitted.]
75 Turning
first to the factors discussed in Devgan, the first factor, that a restitution order should be made with
restraint and caution, must be considered in every case. It is an admonition
that the making of restitution orders should not be done automatically and
prior to making such an order the judge should consider any possible negative
effects in terms of the overall sentencing objectives set out in the Criminal
Code. The importance of the other factors set out in Devgan will depend on the facts of the particular case.
76 In
this case, the imposition of a restitution order is supported by the following Devgan factors: (a) Factor 2(i) as it would
emphasize the sanction on Mr. Sanmugam; (b) Factor 2(ii) as it would make Mr.
Sanmugam responsible for making restitution to the victim; (c) Factor 2(iii),
although if Mr. Sanmugam no longer has any assets, he has already profited from
his crime and this will not be undone through the making of a restitution
order; (d) Factor 3(i) as the purpose of the order is entirely appropriate; and
(e) Factor (iii) while only Ms. Zink has commenced civil litigation, this is no
reason not to afford this remedy to all of the victims. Factors 4 to 8 do not
suggest any reason not to make a restitution order. Factors 9 and 10 simply do
not apply.
77 The
only Devgan factors that suggest
a restitution order should not be made in this case are: (a) Factor 1 as
caution might be appropriate given Mr. Sanmugam's inability to pay and the
quantum of the fraud; (b) Factor 2(iv) as I do not believe that the making of
this order will actually provide a convenient, rapid and inexpensive means of
recovery for the victims; and (3) Factor 3(iii) as Mr. Sanmugam appears to be
entirely without means.
78 In
this case I would start my analysis with the observation that this is a case
involving a particularly egregious breach of trust. As such, following the
analysis in Castro, I consider
Mr. Sanmugam's ability to pay to be a secondary consideration. I would also
note that I have been provided with essentially no information about what has
happened to the money Mr. Sanmugam took from his victims. I do find that this
was a crime motivated by greed and there is no evidence before me that there
was anyone else involved in the frauds. Thus, considering the Devgan factors discussed in para [53], supra, I think it is appropriate to make a
restitution order. Indeed, given Mr. Sanmugam's insistence that he wants to
provide full restitution to his victims, I think it would be incongruous not to
make such an order. As no one else is implicated in the frauds, I will make the
restitution orders in the full amount of the victim's losses.
SENTENCE
79 Mr.
Sanmugam, stand up. For all of the foregoing reasons, the appropriate sentence
for each of your sentences is a term of imprisonment of five years. As you have
been in custody for 26 months I will credit that toward your sentence on a 1 to
1 basis.
80 Therefore,
I sentence you as follows:
· Count #5: 34 months Count #6: 34 months to be served concurrently
with the sentence for count #5
· Count #7: 34 months to be served concurrently with the sentence for
count #5
81 I
will also make restitution orders as follows pursuant to s. 738(1)(a) of the Criminal Code as follows:
You are hereby ordered
to pay Mr. and Mrs. Blizzard the amount of $118,700.00
You are hereby ordered
to pay Linda Zink the amount of $662,000.00
You are hereby ordered
to pay Dr. Tuhina Biswas the amount of $328,705.00
T. DUCHARME J.
cp/e/qljel/qlrdp/qlpmg
1 R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont.
C.A.) per Rosenberg J.A. at pp. 36-39; R. v. Edwards (1996), 28 O.R. (3d) 54 (C.A.) per Finlayson J.A. at
p. 66; R. v.
Sweeney (1992), 71
C.C.C. (3d) 82 (B.C.C.A.) per Wood J.A. at pp. 98-100.
2 R. v. Taylor, at para. 5.
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