Toronto Lawyer’s $2 Million Dollar Fraud Conviction Upheld

GEO#1Yesterday the Ontario Court of Appeal dismissed Toronto corporate lawyer, Remy Boghossian’s appeal from his 2015 conviction for an almost $2 million dollar fraud on the Royal Bank of Canada. (R. v. Boghossian, 2017 ONCA 870 CanLII)

The scam involved Mr. Boghossian and two co-accused acquiring a forged TD Canada Trust bank draft for $1,895,751 in February 2011 from an unidentified bank insider at the Mississauga branch of the TD bank. The funds were then deposited into Mr. Boghossian’s trust account, whereafter he purchased, in two separate transactions, Australian-minted gold bullion from a company in Montreal.

Mr. Boghossian’s lawyer argued that his client purchased the gold on behalf of a client, Omar Ali, who was a real estate developer going through a divorce who wanted to hide the money from his wife. He asserted that his client was a victim of the scam and had been duped into participating. The trial judge found that Mr. Ali did not exist and was created to advance the fraud. He held that a strong circumstantial case had been established and that the three accused acted together to knowingly defraud the Royal Bank by presenting a forged TD bank draft.

The court heard that Boghossian’s two accomplices tried to sell some of the gold bars, but a wary gold dealer recognized the “kangaroo” logo on the bars and contacted the police.

What remains a mystery is who the insider at the TD Bank is and where the gold bars are now. Media reports indicate that the police have discontinued their investigation of these two matters.

Mr. Boghossian also appealed his 3 1/2 year sentence, arguing that as his co-accused only received 3 years each, his sentence should be reduced to three years. The Court of Appeal dismissed the sentence appeal saying:

“In our view, the extra six months awarded the appellant does not raise parity concerns. The appellant was a lawyer. His status as a lawyer and the role his status as a lawyer played in the commission of the offence justified treating this as an aggravating factor, warranting a somewhat higher sentence for the appellant. We see no error in the sentence imposed.”

It is expected that the Law Society of Ontario will disbar Mr. Boghossian.

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How “Uncivil” Can a Lawyer be in Court? The Groia Case

GEO_edited-1If you are a litigator in Canada you should know the name “Joe Groia”. He is a masterful legal advocate from Ontario who specializes in securities law. His prominence in the legal profession was capped this week when Groia v. The Law Society of Upper Canada (now the Law Society of Ontario) was argued before the Supreme Court of Canada. (Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94)

Why is Mr. Groia suing Ontario’s Law Society and why would the Supreme Court of Canada agree to hear his case? In June 2012 the Law Society held that Mr. Groia had professionally misconducted himself while defending his client John Felderhof in an action taken against him by the Ontario Securities Commission. You may recall that Mr. Felderhof was second in command at Bre-X Minerals Ltd, the Canadian-owned gold mine in Borneo that turned out to be a fraud, leaving thousands of investors with losses of hundreds of millions of dollars after investing in the bogus company.

Groia’s representation of Mr. Felderhof was second-to-none, as Mr. Felderhof, after 160 days of trial, was acquitted of all charges. However, the Law Society took it upon themselves to call Mr. Groia to account for his allegedly “uncivil” behaviour during the proceedings, conduct so egregious that during the trial, lawyers for the Ontario Securities Commission asked the judge to stop the trial arguing that he had lost jurisdiction by failing to rein in Mr. Groia’s outrageously rude behaviour in the courtroom. That application failed and the trial continued.

Two Ontario courts reviewed and upheld the Law Society’s ruling against Mr. Groia, describing his trial conduct as “unrestrained invective”, excessive rhetoric”, “theatrically excessive”, “sarcastic and petulant”, “more guerrilla theatre than advocacy in court”, and “attacks on the prosecutor’s integrity”.

Nonetheless, it is noteworthy and significant to Mr. Groia’s defence that the trial judge did not hold him in contempt, neither did he report Mr. Groia’s trial behaviour to the Law Society.

Groia, in rebuttal offered the following arguments:

1. He cast no personal aspersions against opposing counsel, but only targeted the Securities Commission and the prosecution;

2. His basis for alleging prosecutorial misconduct was based on his reasonably held views;

3. His language was mischaracterized by the Law Society and the courts;

4. The tone of the trial was an important factor in assessing his conduct, particularly in light of the prosecutor’s behaviour;

5. The Law Society retroactively applied standards of the “civility movement” to his conduct; and

6. His obligation as an effective advocate outstripped any absence of civility.

Without reading the whole of the transcripts of the trial, it is difficult to assess whether Mr. Groia’s behaviour fell so far below the standard of professionalism of a barrister that he ought to have been sanctioned by the Law Society. His original punishment was a two-month suspension of his license to practice law and an order that he pay costs of $250,000. This penalty was later reduced by the courts to a one-month suspension and $200,000 in costs.

Mr. Groia would, of course, argue that even reading the transcripts one would not be in a position to assess the conduct and roles of each of the counsel and judge at the trial and that may very well be true. It’s the old story that “you had to be there” to understand the dynamics.

Media reports from the hearing in the Supreme Court of Canada this week, appear to underscore the high court’s focus on the absence of disapproval from the trial judge, who was best placed to determine whether Mr. Groia’s conduct sunk to a level where he deserved to be chastised or disciplined.

As a trial lawyer in hard-fought cases, I tend to agree that it is not the Law Society’s place to interfere as a back-seat referee in a hotly contested proceeding where an unsuccessful defence will lead to dire consequences for the accused.

The Supreme Court of Canada clearly wants to provide guidance to litigators. We must now wait to see what the Supremes think…

Trial Debacle Leads to Freedom for Pedophile From Nova Scotia

BarristerDespite what you hear or read, you can’t blame Ernest MacIntosh for the Supreme Court of Canada’s decision to quash his convictions for sex charges involving young boys in the 1970’s. (R. v. MacIntosh 2013 SCC 23)

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial were statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken. However, karma is alive and well because a few short years later Mr. MacIntosh was convicted of sex crimes in Nepal and sentenced to seven years in prison.

I suspect he would rather be serving time in a Canadian prison…

Not Ready for Trial? Ontario Court Says Too Bad….

GeorgiaLeeLang057An Ontario judge has spoken out clearly about counsel who book trials and then abandon them on short notice to the courts. In Armstrong v. Armstrong, 2017 ONSC 6568, Mr. Justice Pazaratz called the case, involving a reduction or termination of spousal support, only to learn that the litigants in the case were not available, and an adjournment was sought by both counsel.

Counsel had earlier agreed and the court permitted them to adjourn the trial, then set for August 2017. At that hearing, counsel had agreed the trial would proceed in October 2017 for three days.

Counsel advised the court that an error had occurred and their clients incorrectly believed the rescheduled trial would take place in January 2018. Counsel also stated that a settlement conference had not been booked which might assist the parties to settle. As well, one of the lawyers indicated he had a doctor’s appointment that afternoon. Judge Pazaratz queried counsel as to why a trial was booked if settlement had not yet been explored, and also opined that the court would and could work around counsel’s medical appointment, but that did not justify an adjournment of the trial. He also said:

“The implications of attending court on day one of a three day trial and requesting an adjournment go far beyond merely wasting one day of court time. Judges and trials are scheduled based on a balancing of multiple scheduling considerations. If this three day time slot becomes wasted, there may be far-reaching consequences (for example another three day trial could have been called, but if I am only available for two more days this week, it means I don’t have enough time to deal with that other matter).”

Judge Pazaratz advised counsel to get their clients to court immediately so the matter could proceed unless a settlement was reached, and warned them that if the matter was not settled and the trial did not go ahead, he would dismiss their case.

Counsel returned with a consent order in which each party withdrew their claims on a without prejudice basis, however, the Court was not impressed with counsels’ tactics saying:

“The problem, of course, is that if people can simply withdraw claims when they aren’t ready for trial, there’s nothing to stop them from re-commencing those claims in short order, and creating even further stress and expense for the system. We have an obligation to ensure that judicial resources are appropriately utilized and not misused. I am not prepared to allow the parties to simply withdraw their claims on a without prejudice basis.”

Judge Pazaratz then dismissed the claims, but not on the merits, saying that if either party wished to return to court to deal with any of the claims, they would require permission from the Court to proceed, and that in the event that occurred, he would be the judge dealing with the matter.

Where courts are being criticized for a lack of judicial time and unreasonable delays in meting out justice, Judge Pazaratz’s ruling is a welcome response to counsel who abuse the system. While “courthouse steps” settlements are to be encouraged, in this case it was apparent from counsels’ remarks that settlement had not yet been broached; that no trial preparation had been undertaken; and that counsel were content to show up, without their clients, expecting a favourable or neutral response to their self-imposed dilemma.

Lawdiva aka Georgialee Lang

Switching Counsel: A Good Idea or Not?

_DSC4179 - Version 2How important is it to stick with the lawyer you originally retained? Not an easy question to answer, but clearly, changes in representation can be detrimental to a litigant.

There are, of course, cases where a change is beneficial. For example, where a client and a lawyer’s personalities clash continually, that may signal a needed change. However, what often happens in family law cases is that counsel will bring an application on behalf of a client with results that are less than expected, leading the client to blame the lawyer for the disappointing result.

If the result is because of a lack of preparation on the lawyer’s part, the client may consider that a change is necessary, but often a disappointing result is because the facts of the case do not support the outcome sought by counsel. If that is the case, clients should be advised in writing of the chances of success.

Sometimes a less than stellar result is because of a particular judge. Experienced counsel get to know a judge’s attitude toward a particular type of argument or client and will avoid that judge when arguing certain cases, although it is not always easy to do so.

In a recent case in California ex-Spice Girl, X Factor and America’s Got Talent coach, Mel B’s divorce from Stephen Belafonte has garnered salacious headlines, but the latest media coverage concerns her switching counsel just before her trial scheduled to commence on November 6.

The reason for her change in counsel is unknown, but media reports indicate that she abruptly walked out of her recent deposition and was later ordered by a judge to reappear and continue that discovery process.

While the trial has previously been adjourned it is expected that her new counsel will try to obtain a further delay of the trial. It has been reported that the 42-year-old has already spent a million dollars in the seven months since her divorce litigation began. A truly ugly case that may well get worse….

I Didn’t Do It: Is There Justice for the Wrongfully Convicted?

_DSC4851My sense of justice really comes unglued when I read about another poor schlep who has spent years in prison for a crime he or she did not commit.

One of the most recent is Romeo Phillion, now 74-years-old, who was wrongfully convicted of murdering Ottawa firefighter, Leopold Roy in 1967. Mr. Phillion spent 31 years behind bars, mainly because of his initial false confession, quickly recanted, which resulted in a plea deal, and the despicable suppression of crucial evidence by the Crown, that would have exculpated Mr. Phillion.

Nothing really important…just uncontroverted evidence known by the Crown, that Romeo Phillion was two hundred kilometres away from the murder scene. You mean he was somewhere else? Yes, that’s right. You mean the real killer is still at large? Yes, again, that’s correct.

It’s a tie as to which family should feel more aggrieved, Mr. Roy’s or Mr. Phillion’s.

While I am a law and order defender, what really galls me is the lack of remorse of police and prosecutors in botched criminal cases. In Mr. Phillion’s case, retired Superintendent John McCombie said “Everything I did, I did according to the law”, also noting that he was “surprised and disappointed”, presumably because Mr. Phillion was set free. The level of arrogance is astounding.

Even with this evidence and Mr. Phillion’s release from prison in 2003, the Crown insisted that he be retried, maintaining this position until 2009 when all charges were dropped. In May 2012 Mr. Phillion filed a $14 million dollar lawsuit, which no doubt will be vigorously opposed by the Crown.

Quebecer Rejean Hinse is another victim who never received an apology. Imprisoned in the 1960’s for an armed robbery conviction, he served eight years of a fifteen year sentence. However, justice was still illusory after the Quebec Court of Appeal quashed his conviction because the Crown, in their wisdom, only entered a “stay of proceedings”.

A “stay” puts the case on hold for one year or permanently, but provides no resolution as to guilt or innocence. Clearly not a satisfactory outcome for an innocent accused.

Mr. Hinse was able to take his case to the Supreme Court of Canada where the Court ruled there was insufficient evidence to convict. Despite his acquittal, he had to fight for financial compensation, finally in 2011 receiving $4.5 million in a settlement with the Quebec government and obtaining a judgment against the federal government of $8.6 million. Not surprisingly, the feds are appealing the order that they pay millions in compensation.

The road to a declaration of innocence is long and tortuous. Of course, Canada is not alone in its reluctance to implement a process where the wrongfully convicted can have speedy access to independent review procedures, DNA testing and the like. Criminal justice reformers have recommended an independent committee, outside of the criminal justice system, to address these horrific cases, a plan that is long overdue.

In a recent Illinois case, 50-year-old Andre Davis, who served 32 years in prison for the 1980 rape and murder of three-year-old Brianna Sickler, was exonerated when it was determined that blood and semen at the crime scene was not Davis’. Nonetheless, State Attorney Julia Reitz could not bring herself to admit the unbelievable injustice of Mr. Davis’ wrongful conviction, instead remarking they would not retry Andre Davis because of the age of the case and deceased or missing witnesses.

While it is difficult to find Canadian statistics on the number of wrongfully convicted, the University of Michigan has established a national registry for the United States where they record 891 wrongfully convicted persons between January 1989 and March 2012.. These numbers do not include another 1,170 victims who were exonerated in “group exonerations”, cases where thirteen separate “police scandals” have resulted in overturned convictions.

I can’t imagine what it must be like to be tried and convicted at trial, endure an unsuccessful appeal, perhaps even a further appeal to the Supreme Court of Canada, and then languish in prison for dozens of years, for a crime you didn’t commit.

When Rejean Hinse was asked by the media to describe his time in prison, he showed them a picture of Edvard Munch’s “The Scream” to explain the utter despair he suffered. No amount of money can atone for a life in prison.

Lawdiva aka Georgialee Lang

COURTROOM FASHION POLICE

GeorgiaLeeLang009Clients often wonder what they should wear to court. I usually tell them that “business casual” is acceptable, but jackets and ties are never out of place. On more than a few occasions an in-person litigant has been so well dressed that the judge assumes he/she is a lawyer. Looking around at certain lawyers’ attire, I am not sure that is a compliment!

So, we know what to wear to court, let’s talk about what not to wear…

Judges in Kent County, Delaware have instituted a formal dress code after one woman appeared in court in her pajamas. (Didn’t Michael Jackson do the same thing during his trial? Yes, but his was designer apparel!)

The list of banned clothing in Kent County includes saggy pants, bare feet, curlers, gang clothes, exposed undergarments, skirts more than four inches above the knee, muscle shirts, tank tops, halters and bare midriffs.

“USA Today” cites other examples of court attire judged to be inappropriate:

1. A woman from Detroit who wore a rumpled sweat suit that read “Hot Stuff” on her derriere;

2. A woman from Bakersfield who came to court with rubber flip-flops;

3. A judge in Texas bans people with excessive body piercings and tatoos that are not covered;

4. A man in Ohio was threatened with jail time for wearing a t-shirt with the horror character Chucky on it and the words “Say Goodbye to the Killer”.

As Mark Twain said “Clothes make the man. Naked people have little or no influence.”

Lawdiva aka Georgialee Lang