R. v. Bath

2013 BCCA 126 R. v. Bath

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Bath, 2013 BCCA 126 Date: 20130318 Docket: CA039857 Between: Regina Respondent And Sikander Singh Bath Appellant Corrected Judgment: The paragraph numbering of the judgment was corrected at paragraphs 22 onwards where changes were made on April 30, 2013; Before: The Honourable Mr. Justice Frankel (In Chambers) On appeal from: Supreme Court of British Columbia, December 15, 2011 and April 10, 2012 (R. v. Bath, 2011 BCSC 1726 and 2012 BCSC 645, New Westminster Docket No. X70890-1) Counsel for the Appellant: G.N.A. Botting Counsel for the Respondent: R.D. Leong Place and Date of Hearing: Vancouver, British Columbia January 18, 2013 Place and Date of Judgment: Vancouver, British Columbia March 18, 2013 Reasons for Judgment of the Honourable Mr. Justice Frankel: Introduction [1] This is an application by Sikander Singh Bath for the appointment of counsel under s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, to advance his conviction and sentence appeals. The convictions are for fraud and relate to false claims for Goods and Services Tax refunds which were filed by various companies from 1995 to 1997 on the basis that they had paid GST in connection with the production in Canada of lumber, shake, and shingle products that had been exported. [2] The trial was a lengthy one, lasting some 125 days. Mr. Bath was tried together with

Manjit Singh Khangura on an indictment containing 20 counts of fraud and two counts of money laundering. Each fraud count relates to a separate company. The Crown alleged that those companies were merely conduits used by Mr. Bath, Mr. Khangura, and others, to perpetrate a scheme that resulted in the Government of Canada paying out more than $23 million in GST refunds in connection with non-existent lumber exports. The scheme was straightforward. The companies submitted false refund claims to the Canada Revenue Agency which mailed back cheques that were deposited into accounts at various financial institutions. Shortly after the cheques were deposited the funds were either transferred or withdrawn in cash. [3] The Crown relied on the evidence of Paramjit Singh Gill who had entered into a plea agreement to become a Crown witness. Mr. Gill had been charged together with Mr. Bath and Mr. Khangura in three of the fraud counts and one of the money laundering counts. As a result of the plea agreement, Mr. Gill pleaded guilty to those fraud charges and the Crown stayed the money laundering charge. On the basis of a joint submission, he received a sentence of two years less one day. As I will discuss later, the trial judge had considerable concerns about Mr. Gill's credibility. [4] Neither Mr. Bath nor Mr. Khangura testified. [5] The trial judge was satisfied beyond a reasonable doubt

that 13 of the companies named in the indictment were shams and that they did little, if any, real business. She then went on to consider whether Mr. Bath and Mr. Khangura were sufficiently linked to those companies to support their convictions. In the end, the judge was satisfied that Mr. Bath was a party to the fraudulent actions of six of the sham companies which collectively received more than $7.9 million in refunds. As a result, she convicted Mr. Bath on six counts of fraud. [6] With respect to Mr. Khangura, the trial judge was satisfied that he was a party to the actions of three of the sham companies which collectively received more than $3.1 million in refunds. As a result, she convicted Mr. Khangura on three counts of fraud. [7] There was one count on which both Mr. Bath and Mr. Khangura were convicted. The company named in that count received approximately $1.3 million in refunds. [8] The trial judge sentenced Mr. Bath to four and one-half years' imprisonment and Mr. Khangura to three years' imprisonment. [9] Mr. Bath sought funding for his conviction and sentence appeals from the Legal Services Society. Without considering Mr. Bath's financial circumstances, the Society refused to fund the appeals based on an assessment of their respective merits. With respect to the conviction appeal, the Society considered the same grounds of appeal that Mr. Bath relies on in

advancing this application. With respect to the sentence appeal, the Society considered whether the sentence imposed was unfit. [10] Mr. Bath does not deny that a multi-million dollar GST fraud occurred. His position is that the evidence did not establish his participation in that fraud. In the most recent of the affidavits he swore in support of this application he states: The trial judge had ample evidence before her, and she found as a fact, that the Bath group of companies, which Sikander Bath had built up over the years by dint of, hard, honest work, was legitimate and highly respected and was not the subject of investigation for GST fraud. Only when he was away in India leaving the companies in the sole care of his relatives (specifically his brother) and senior employees, did the GST fraud take place using "shell" companies. [11] For the reasons that follow, this application is dismissed. As I will explain, Mr. Bath has not satisfied me that he lacks the means to fund his appeals or that either appeal has sufficient merit to warrant being advanced at public expense. The Section 684 Criteria [12] The application of the test for the appointment of counsel under s. 684 is well known and was recently discussed by Madam Justice MacKenzie in R. v. Silcoff, 2012 BCCA 463: [20] The overriding purpose of s. 684 of the Code is to protect the right to be heard and to ensure the

fairness of the proceedings: R. v. Barton and Federici, 2001 BCCA 477 at para. 7. [21] Appointment of counsel under s. 684 is subject to a two-part test, generally considered in the following order: 1. The accused must have insufficient means to obtain legal assistance; and 2. Appointment of counsel must be in the interests of justice. [22] According to Applications for a Court-Appointed Lawyer Under Section 684 of the Criminal Code (Criminal Practice Directive, 19 September 2011), applicants should generally be able to show that 1) they cannot afford to retain counsel for the appeal; and 2) they applied to the Legal Services Society for legal aid and were refused. [23] The factors to be considered under the requirement of "interests of justice" were summarized in International Forest Products Ltd. v. Wolfe, 2001 BCCA 632 at para. 6 and 13, 94 B.C.L.R. (3d) 67 (Levine J.A. in Chambers). They are as follows: a. The points to be argued on appeal; b. The complexity of the case; c. Any point of general importance in the appeal; d. The applicant's competency to present the appeal; e. The need for counsel to find facts, research law or make argument; f. The nature and extent of the penalty imposed; and g. The merits of the appeal. [24] As to the merits of the appeal, the threshold requirement is an arguable appeal: R. v. Donald, 2008 BCCA 316 at para. 15, 258 B.C.A.C. 117 (Saunders

J.A. in Chambers). [25] In determining whether an appeal is arguable, regard must be had to the applicable standard of review on the proposed appeal: Lin v. British Columbia (Adult Forensic Psychiatric Services), 2008 BCCA 518 at paras. 17-18 (Frankel J.A. in Chambers). [26] Even where other factors favour the appointment of counsel, it will not be in the interests of justice to appoint counsel where an appeal has no merit: R. v. Hoskins, 2012 BCCA 51 at paras. 30-32, 315 B.C.A.C. 238 (Garson J.A. in Chambers). [27] The Court may consider the opinion of the Legal Services Society that an appeal has no prospect of success, however, the opinion of the Legal Services Society is only one factor: R. v. Chan, 2001 BCCA 138 at para. 8 (Finch J.A., as he was then, in Chambers); R. v. Butler, 2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers). [Emphasis added.] [13] In the present case, the Crown opposes Mr. Bath's application on two bases. First, the Crown submits that the material filed by Mr. Bath does not establish that he lacks the financial ability to retain counsel. Second, the Crown submits that Mr. Bath has not established that either appeal has merit. Mr. Bath's Financial Circumstances [14] I will begin by noting that the parties agree that the costs of the conviction appeal will be substantial. I was advised that the transcripts alone will cost in excess of

$100,000.00. In addition, there are thousands of exhibits which must be assembled and copied to produce the appeal books. [15] At trial, Mr. Bath's defence was funded by the Legal Services Society. However, the Crown says, and I agree, that the fact that Mr. Bath was previously granted legal aid does not relieve him of the obligation to show that he presently lacks the means to fund his appeals. As already mentioned, the Legal Services Society did not assess Mr. Bath's current financial circumstances in considering whether to fund these appeals. [16] The Crown submits that Mr. Bath has failed to either account for or explain what happened to the millions of dollars paid to the six companies in respect of which he was convicted. The Crown also says that there are inconsistencies in the various affidavits filed by Mr. Bath that should cause me to question the veracity of the statements therein that he lacks the financial ability to fund his appeals. [17] With respect to Mr. Bath's failure to address the missing funds, the Crown relies on R. v. Schiel, 2012 BCCA 1, 314 B.C.A.C 236. In that case, applications for the appointment of counsel brought by two appellants convicted of fraudulently obtaining over $1.9 million in GST were dismissed. In holding that those appellants had failed to establish that they did not have the means to fund their appeals, Madam Justice Bennett said

this: [8] The difficulty with this application is that the Schiels have filed no affidavit evidence with supporting documents showing the disbursement of the substantial amount of money they received in GST tax refunds. When I asked during submissions where the money went, the response was vague. [18] However, the Schiels' connection to the missing funds was much stronger than that of Mr. Bath. This is reflected in the reasons of this Court dismissing their conviction appeal, wherein Chief Justice Finch stated that, "The [refund] cheques were negotiated by either Mr. Schiel or Ms. Schiel, and were used to pay personal expenses": R. v. Schiel, 2012 BCCA 440 at para.

27. In the present case, there is no finding by the trial judge that Mr. Bath handled any of the refund cheques or personally came into possession of any of the money, although she did find that he had directed another person (Zora Maan) to conduct banking transactions, including withdrawing cash from company accounts. Also of note is that in her reasons for sentence, the trial judge declined to impose fines on either Mr. Bath or Mr. Khangura because: (a) the Crown had been unable to trace or recover any of the funds; and (b) it was unlikely that they enjoyed the entire proceeds given the involvement of others: 2012 BCSC 645 at para.

60. I also take into account the fact that Mr. Bath does not deny that the fraud occurred but, rather, seeks to advance his appeal on grounds that challenge the finding that he participated in that fraud. [19] In the present circumstances, I am not prepared to treat Mr. Bath's failure to account for the proceeds of the fraud as militating against his application for the appointment of counsel. [20] This brings me to the three affidavits in which Mr. Bath sets out his financial circumstances: (a) October 30, 2012: a two-page typed document filed in support of an application for an extension of bail pending appeal; (b) November 6, 2012: a two-page "fill-in the blanks" form filed in support of an application for the appointment of counsel; and (c) January 16, 2013: a six-page typed document (plus numerous attachments) filed in support of an application for the appointment of counsel. [21] In terms of what Mr. Bath deposed with respect to his income, expenses, and assets, the following table sets out what the Crown says are inconsistencies: November 6, 2012 January 16, 2013 Income: $15,000.00/year less than $1,000.00/month Expenses: $10,000.00/year $2,500.00/month (joint with wife) Debts: $20,000.00 A credit card for emergencies that is at its limit (amount unstated) Assets: Zero $15,000.00 The January 16, 2013 affidavit also refers to Mr. Bath's wife having a credit card with a

$2,000.00 limit. [22] The Crown points out that in his October 30, 2012 affidavit, Mr. Bath deposed that he would be pursuing the appeal and had "made the necessary financial arrangements." Indeed, he stated that he expected to file the transcripts and appeal books by or shortly after November 6, 2012, the date then set for a compliance hearing. However, on November 6, 2012, he swore, "I cannot afford a lawyer because of my financial circumstances." [23] Last, the Crown points out that in the October 30, 2012 affidavit, Mr. Bath deposed that he was receiving long-term disability and "getting into work at a recycling plant" where he would continue to be employed. However, while the long-term disability payments are referred to in the January 16, 2013 affidavit, no mention is made of any employment. [24] I share the Crown's concern about the accuracy and reliability of some of the information Mr. Bath has placed before this Court. Although some of the inconsistencies are more significant than others, I need only address the one I find the most troubling. In seeking an extension of his bail, Mr. Bath swore that he had arranged funding for his appeal and expected to file the transcripts and appeal books within a week or so. This can only mean that he had ordered that material and was in a position to pay for it. However, one week later he swore that he could not fund the appeals

and sought an order that the State provide the necessary funds. [25] I agree with the Crown that such a significant and rapid change in position calls for an explanation. In this regard, I note that Mr. Bath was aware that the Crown would be raising this point, as it is referred to in the memorandum the Crown filed on January 4, 2013. However, notwithstanding being put on notice, Mr. Bath chose not to offer any explanation for the change in either his January 16, 2013 affidavit or at the hearing of this matter. [26] The affidavits filed by Mr. Bath fall short of satisfying me that he is without the means necessary to prosecute either of his appeals. Indeed, those affidavits, when viewed collectively, raise more questions than they answer. Merits of the Appeals [27] Even if I were satisfied that Mr. Bath lacks the means necessary to prosecute his appeals, I still would not grant this application. That is because I have not been persuaded that the various grounds he seeks to raise have any prospect of succeeding. Conviction Appeal [28] The amended notice of appeal filed by Mr. Bath on September 5, 2012, sets out nine grounds of appeal. In addition, at the hearing of this application, Mr. Bath raised the possibility of a fresh evidence application and mentioned two potential additional grounds. I will deal first with the matters raised at the hearing. [29] Mr. Bath indicated that

he may apply to introduce fresh evidence to show that during part of the period when the frauds were committed he was out of the country or experiencing a mental illness. He may also seek to introduce fresh evidence to show that the companies through which the frauds were committed were controlled by others. [30] The first difficulty with the proposed fresh evidence is that there was evidence at the trial that Mr. Bath was experiencing a mental illness and was hospitalized during the relevant period. There was also evidence that he was absent from Canada during that time. The trial judge was alive to that evidence and specifically addressed it in considering whether Mr. Bath was involved in the fraudulent scheme. The judge was also alive to the evidence that established that others had played a role in carrying out the scheme. [31] The second difficulty with this proposed application is that Mr. Bath has raised it in only a general way. He has not provided any specifics and has not indicated how any fresh evidence would, in a real sense, change the factual matrix that was before the trial judge. The third difficulty is that it is unlikely that Mr. Bath could meet the due diligence requirement for the admission of fresh evidence. [32] Next Mr. Bath suggested that he may advance a ground alleging ineffective assistance by his trial counsel. However, he did nothing more than state

this was "possible". Absent specifics I cannot be satisfied there is any merit to such an assertion. [33] The last point raised for the first time at the hearing relates to what I can only describe as an oblique assertion that the trial judge should have recused herself. I was told that after Mr. Bath was charged he retained a lawyer at the same law firm as the trial judge's husband. However, that lawyer ceased to act well before the trial. I was further told that the trial judge herself drew this connection to the attention of the parties, although I was not provided with the context in which that occurred. What I do know is that none of the parties asked the judge to recuse herself. Mr. Bath now says that the trial judge may have had knowledge of the case and that "there may be something there". Based on the scant information provided, I am unable to see any merit to this ground. [34] This brings me to the nine grounds set out in the amended notice of appeal. I agree with the Crown that some grounds are but variations of others and that their substance can be distilled into the following three points: (a) Did the trial judge err in misapplying the onus of proof by requiring the appellant to establish that his dealings with the companies responsible for the frauds were innocent? (b) Did the trial judge err in placing reliance on the testimony of Mr. Gill, an unsavory

witness? (c) Are the convictions unreasonable or unsupported by the evidence? [35] I am unable to see any merit in the contention that the trial judge misapplied the burden of proof. It is clear from her reasons that she placed the onus on the Crown to prove its case beyond a reasonable doubt at every stage of her fact-finding process. She first required the Crown to prove beyond a reasonable doubt which companies mentioned in the indictment were shams and had submitted fraudulent refund claims. Next, she required the Crown to prove beyond a reasonable doubt a connection between those sham companies and Mr. Bath and Mr. Khangura sufficient to make them parties to their fraudulent activities. In so doing, she had regard to the fact that a person can be guilty of an offence by actually committing it, or by aiding or abetting its commission. [36] The trial judge's reasons run to over 450 paragraphs. It is significant that when I asked Mr. Bath's counsel to point out where in those reasons the alleged misapplication of the burden of proof manifests itself, he was unable to do so. [37] I turn now to the trial judge's assessment of Mr. Gill's evidence. This ground concerns the approach to be taken by a trier of fact in considering the evidence of an unsavoury witness such as an accomplice, first articulated by the Supreme Court of Canada in R. v. Vetrovec, [1982] 1 S.C.R.

811. In his amended notice of appeal, Mr. Bath asserts that the trial judge: (a) "went through the motions of directing herself in applying the Vetrovec warnings"; (b) "ultimately accepted critical parts of [Mr. Gill's] evidence uncritically, leading her into error"; and (c) "engaged in "cherry-picking the evidence of a manifestly unreliable witness". A reading of the trial judge's reasons belies those assertions. [38] The trial judge was very much alive to the requirements of Vetrovec, and, to use her words, approached Mr. Gill's evidence with "extreme caution". She was aware that his evidence was fraught with contradictions and in some cases appeared to be selective. Although the judge accepted Mr. Gill's evidence as to his own involvement in the frauds to which he pleaded guilty, she was wary of his testimony in so far as it implicated others, particularly Mr. Bath and Mr. Khangura. At the conclusion of her discussion of Mr. Gill's testimony, the trial judge said this: [102] I conclude that it would be dangerous to rely on Mr. Gill's evidence about the involvement of others, including Mr. Bath and Mr. Khangura, unless his evidence is specifically corroborated by other reliable evidence. In my view it is necessary to approach Mr. Gill's evidence with even greater caution than the principles in Vetrovec generally require. [39] Mr. Bath's Vetrovec ground, and in particular his

"cherry-picking" complaint, is directed at the fact that the trial judge accepted Mr. Gill's evidence regarding Mr. Maan, who was listed as the sole shareholder and director of a number of the companies. It was the Crown's position that Mr. Maan did not have the ability to manage substantial business operations and that he was simply a nominee of Mr. Bath and took direction from him. Mr. Gill testified that Mr. Mann lived and worked at Mr. Bath's residence, cutting grass and doing similar tasks. He also said that Mr. Maan spoke almost no English. [40] It is clear from the reasons that the trial judge accepted Mr. Gill's testimony regarding Mr. Maan only because there was independent evidence to the same effect. In that regard, the judge referred to such evidence as: (a) the person who had owned one of the companies prior to the frauds being committed described Mr. Mann as a security guard at the Bath mill; (b) the comptroller for the Bath Group of companies described Mr. Maan as the night watchman at one of the mills; and (c) the chartered account for Mr. Bath and his companies described Mr. Maan as an errand person or "gopher". In other words, the trial judge followed the law as set out in Vetrovec and subsequent decisions of the Supreme Court of Canada dealing with unsavoury witnesses. That there was evidence, for example, that arguably might support the view that Mr. Maan

had a greater ability to communicate in English did not require the judge to reject that aspect of Mr. Gill's evidence. [41] This brings me to Mr. Bath's final ground, namely, his assertion that his convictions are unreasonable or unsupported by the evidence. The substance of this ground was not articulated with any precision beyond the complaint with respect to the treatment of Mr. Gill's evidence and a general assertion that the trial judge ought not to have found the facts and drawn the inferences that she did. Furthermore, it has not been suggested that there was no evidence capable of supporting the findings and inferences essential to the convictions. [42] In essence, as presented on this application, what Mr. Bath wishes to do is to argue the appeal as if it were a matter of first instance. That, of course, is not the function of an appellate court. In the absence of more focussed submissions I am unable to see any merit in this ground. Sentence Appeal [43] The three grounds set out in the amended notice of appeal assert that the trial judge failed to properly apply the following sentencing principles set out in the Criminal Code: (a) s. 718.1 (proportionality); s. 718.2(b) (parity with similar offenders); and (c) s. 718.2(d) (restraint). However, Mr. Bath did not indicate how those principles were misapplied, other than to say that his sentence is too high in light of

those imposed on Mr. Gill and Mr. Khangura. In sentencing both Mr. Bath and Mr. Khangura, the trial judge did have regard to Mr. Gill's sentence and the circumstances under which it was imposed. She also took into consideration the fact that Mr. Bath's involvement in the fraudulent scheme was more extensive than that of Mr. Khangura and took place over a longer period of time. [44] Based on Mr. Bath's submissions, and having regard to the deference to be shown to sentencing decisions, I am not persuaded there is a reasonable prospect that a division of this Court would interfere with the sentence imposed. Disposition [45] This application is dismissed. "The Honourable Mr. Justice Frankel"