R. v. Iyer, 2013 ABQB 725

Court of Queen ’ s Bench of Alberta Citation: R. v. Iyer, 2013 ABQB 725 Date: 20131206 Docket: 120555024Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Vimal Chandra Iyer Applicant Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Given that this is scheduled to be a jury trial and the trial has commenced with applications concerning evidence, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner.

NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. Editorial Notice: The restriction on publication ended December 2, 2016. _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _________________________________________ ______________ I. Introduction [ 1 ] Mr. Iyer is charged with 40 counts on one indictment relating generally to fraud, deceit and theft exceeding $5000. He makes an application to sever counts one and two from that indictment.

The indictment is set out in Appendix A to this memorandum.

[2] Counts one and two are as follows: 1. On or between the 1st day of March, 2007, and the 31st day of December 2009, at or near the city of Edmonton, in the Provinceof Alberta, did steal money, the property of Trident Properties Ltd. of a value exceeding $5,000.00, contrary to

section 334(

a) of TheCriminal Code of Canada. 2. On or between the 1st day of March, 2007, and the 31st day of December 2009, at or near the city of Edmonton, in the Provinceof Alberta, did by deceit, falsehood or other fraudulent means, defraud Trident Properties Ltd. of money by misappropriating or divertingcorporate funds of a value exceeding $5,000.00, contrary to section 380(1)(

a) of the Criminal Code of Canada. [3] Most of the other counts on the indictment pertain to allegations of fraud and theft relating to individual investors. Countsone and two allege that Mr. Iyer stole money from and defrauded a corporation, Trident Properties Ltd. [Trident]. At all material timesMr. Iyer was the sole director of that corporation. [4] Mr.

Iyer says, among other things, that it would be in the interests of justice to sever those counts because the inclusion ofthose counts is highly prejudicial and would affect his fair trial rights. [5] The trial judge has the sole discretion to determine whether the joinder of counts in an indictment stands contrary to theinterests of justice: section 591 (3) of the Criminal Code. [6] This raises the following issues: 1. what is the burden of proof? 2. what factors must the Court consider in determining whether to sever two counts on the indictment? II.

Discussion [7] The Applicant says that: "The overarching consideration by a trial judge is the balance between the accused interest in a fairtrial, based on admissible evidence, and society’s interest in ensuring justice is done in an efficient and cost effective manner." TheCrown does not disagree: R v Last, 2009 SCC 45 , [2009] 3 SCR 146 at para 16 [Last]. [8] The Applicant makes his application on the basis of the following: 1. There are numerous factors that make it in the interests of justice to sever the first two counts from the indictment; 2.

The inclusion of counts one and two are significantly different than the other counts and if tried together carry a real andoverwhelming risk of prejudice to the Applicant; 3. The inclusion of counts one and two is highly prejudicial and will affect the applicant’s fair trial rights. [9] The Crown opposes the application on the basis of the following: 1.

Whether the Applicant can be charged with and convicted of fraud or theft as against Trident if there is evidence to demonstratethat monies given in trust to the Corporation by Trident’s investors were not used for the benefit of the Corporation but for a dishonestpurpose by the Applicant; 2. Whether the interest in avoiding inconsistent verdicts in multiple proceedings are overtaken by the unsupported intention of theApplicant to testify about his belief that he was not deceitful or dishonest as it relates to his actions as director of the misappropriation ordiversion of corporate funds; 3.

Whether there is any prejudice to the Applicant given that the facts and evidence relating to the fraud perpetrated on aCorporation and the fraud perpetrated on the investors by the Applicant is the same; 4.

Whether severance is in the interests of justice given the probative value of the evidence demonstrating that the director[Applicant] allegedly diverted Trident funds for personal use or in furtherance of the fraudulent investment scheme. [10] The Supreme Court of Canada has set out factors that may be weighed by the trial judge in a severance application: Last, atparas.17-18: 1. general prejudice to the accused, 2. the legal and factual nexus between the counts, 3. the complexity of the evidence, 4. whether the accused intends to testify on one count but not another, 5. the possibility of inconsistent verdicts, 6. the desire to avoid a multiplicity of proceedings,

7. the use of similar fact evidence at trial, 8. the length of the trial having regard to the evidence to be called, 9. the potential prejudice to the accused with respect to the right to be tried within a reasonable time, and 10. the existence of antagonistic defences as between co-accused persons. [11] The Supreme Court of Canada in Last states that the trial judge must weigh and balance all of the factors relevant to the caseat hand in coming to its conclusion about severance: Last para 12. [12] In the matter before me, the relevant factors include numbers 1 to 6, 8, and 9.

The others are not argued at this time. [13] None of those factors individually determines a severance application, rather the court must consider all of the relevant factorsand weigh and balance those factors together. Some of the factors may have more weight than others in any particular case. [14] A discussion of any one of the factors necessarily overlaps with others. In my discussion below this will become evident. [15] With respect to the ninth factor, the Applicant in this instance waives s 11(

b) because he has stated that if I sever counts oneand two from the indictment, he will not rely on his

section 11(

b) rights to be tried within a reasonable time for the other counts as aseverance would necessitate that the remaining counts would not be tried for some time.

This deals with factor 9 above and I shallconsider it no further. [16] The Applicant submits that the relevant factors in this case include: no nexus between counts 3 to 40 and counts one and two;the complexity of the evidence; the length of the trial; substantial prejudice to the accused; and the accused intends to testify on countsone and two but not on the other counts. [17] The Crown states that the Court should not cause an injustice to the Crown when balancing the relevant factors to determinewhether severance should be granted.

Further, the “ends of justice” does not refer only to the accused’s interests: R v Litchfield, (SCC), [1993] 4 SCR 333 at para 38 [Litchfield] at para 38; R v August, 1996 CarswellBC 823 (SC). A. What is the burden of proof? [18] The applicant must demonstrate that the interests of justice require severance on the standard of a balance of probabilities: R vArp, (SCC), [1998] 3 SCR 339 [Arp]; R v McNamara, (ON CA), 1981 CarswellOnt 1243at para118 (CA) [McNamara]. B. Analysis [19] The statutory authority for severance is found at s 591(3)(

a) of the Criminal Code, RSC 1985, c C-46 which states in part:

(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts; and ... [20] Other relevant sections can be found in Appendix B attached hereto. [21] The Supreme Court of Canada in Last, provides a number of factors a court should consider when deciding whether to grantan order under s 591(3). A court, in applying s 591(3), must ask whether the interests of justice require severance. This requires a balancebetween the accused’s interest to be tried on the evidence admissible against him and society’s interest in efficient and cost-effectivetrials: Last at para 43.

The Court highlights the risk that evidence admissible on one count but inadmissible against another will influencethe trier of fact regarding the latter count and could prejudice the accused: Last, at para 16; see also R v Blea, 2012 ABCA 41 at para 43. [22] The interests of justice include both the accused’s right to a fair trial, society’s interest in seeking the truth, and society’sinterest in trial efficiency. A court must balance these considerations in applying the factors: Last at para 44.

Although the court shouldconsider any prejudice to the accused, it must also consider possible prejudice to the Crown and the public interest in assessing theconduct of the accused in all the circumstances: Litchfield at para 38.

The court should keep in mind that a fair trial is not “the mostadvantageous trial possible from the accused’s point of view. … A fair trial is one which satisfies the public interest in getting at thetruth, while preserving basic procedural fairness to the accused:” R v Harrer, [1995] 3 SCR 265 at para 45; see also R v Handy, 2002SCC 56 at para 150 [Handy]. [23] I shall now turn to a discussion of each of the relevant factors suggested in Last. 1.

The legal and factual nexus between the counts [24] In considering the factual nexus between the counts the trial judge should assess whether the counts relate to the sametransaction or set of transactions: see Last at para 31-33; R v Comeau, 1973 CarswellNS 21 at para 31 (SC). Joining factuallyunconnected counts risks prejudicial reasoning by the trier of fact: Severing factually connected counts limits the trier of fact’s ability toconsider guilt in light of all the circumstances and can create a risk of inconsistent verdicts. This is an important consideration in the casebefore me.

[25] A sufficiently close nexus to resist severance has been found where similar but distinct offenses occurred one month apart:August.

Courts have also found such a nexus between possession of counterfeit money and possession of an explosive substance wherethe police found both in the accused’s home during the same search: R v Rocco (No 1), 1975 CarswellOnt 14 (Co Ct) [Rocco]. [26] However, the Court must keep in mind that “[w]here there is a clear factual nexus … the logic of a joint trial is morecompelling than where there are multiple sets of events linked together only by the identity of the person charged and the place wherethe events occurred:” R v Ticknovich, 2003 ABQB 597at para 66 [Ticknovich]. [27] Mr.

Iyer suggests that there is no legal nexus between the counts 3 to 40 and counts one and two, because counts one and twoconcern legal issues that go to his ability to defraud and steal from Trident. He suggests that he cannot defraud and steal from his owncompany. This question is a legal question. [28] First, a corporation is a separate legal entity from its directors and shareholders. Therefore, notwithstanding that Mr. Iyer wasthe sole director of Trident, he can nevertheless, as a separate legal entity from the corporation, be guilty of theft and fraud on thecorporation.

That is for the trier of fact to determine. [29] Further, there is law with respect to what constitutes fraud on a corporation. [30] In R v Olan, (SCC), [1978] 2 SCR 1175, Dickson J found that fraud on a corporation does not requiredeception of the corporation but can include “other fraudulent means:” at para 5 citing R v Cox, R v Paton, (SCC),[1963] SCR 500.

Dickson J wrote “ ‘other fraudulent means’ … include[s] means which are not in the nature of a falsehood or deceit;they encompass all other means which can properly be stigmatized as dishonest.” Fraud generally requires the establishment of twoelements: dishonesty and deprivation. In relation to a corporation dishonesty can include using corporate assets for personal purposes andnot for bona fide corporate purposes intended to benefit the corporation: at para 12.

One shows deprivation through “proof of detriment,prejudice or risk of prejudice to the economic interests of the victim:” at para 13. [31] McLachlin J, as she then was, in R v Théroux, (SCC), [1993] 2 SCR 5 set out the mens rea for fraud. McLachlin J states at 20: … doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of: 1. the prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk. Correspondingly, the mens rea of fraud is established by proof of: 1. subjective knowledge of the prohibited act; and 2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consistin knowledge that the victim's pecuniary interests are put at risk). [32] Therefore, it is possible for an individual, in this case Mr.

Iyer, to have defrauded Trident. [33] Mr. Iyer also suggests that there is a question as to whether he took money from his own company, Trident, which, I find, is afactual question to be determined by the trier of fact, and, whether he was authorized to do so, which is also a factual issue to bedetermined by the trier fact. Therefore, I will not consider these last two questions, as they are not relevant to my considerations here. [34] Mr. Iyer also suggests that the evidence required to prove and defend the investor counts will be different from counts oneand two.

Further, that there is “little overlap in evidence” required for counts one and two and for the investor counts (counts 3 to 40). Inthis latter respect, the Applicant suggests that money found in Trident accounts cannot be traced back to any specific investor becausethere are multiple investors. He says further that severance can be allowed because evidence of money flow from investors to Trident isnot necessary to show money flow from Trident to the Applicant. [35] Here, I disagree. The money flow from investors to Trident is one part of the total alleged fraudulent scheme. The other

part iswhat Trident did with it. Mr. Iyer must be implicated by the Crown in what happened to the money. For the purposes here, we know thatMr.

Iyer was the directing mind of Trident and that this establishes a basis on which we can presume that the Applicant had thewherewithal to direct Trident as to what was done with the money invested by the investors. [36] The Crown suggests that “in evaluating the legal and factual nexus between the counts in an indictment, it is well settled thata court must determine whether the count at issue in the respective indictment arises from, or is related to, the same transaction as theother counts in the indictment.”: Citing Last at paras 18, 31 - 33; Arp at para 52; Litchfield at paras 41-46. [37] The Crown says that in this case there is a close factual nexus between the alleged acts as it relates to Trident and theinvestors.

For example, the alleged false or misleading representations made by Trident in issue, and which form the actus reus and themens rea with respect to the first two counts, also form the mens rea for the remaining counts in the indictment. In other words, thealleged false or misleading representations and the Applicant’s conduct comprise one general occurrence or ongoing transaction that iscentral to all respective counts on the indictment. [38] To support this, the Crown states that its theory is that Trident was a necessary component of the fraudulent scheme. Furtherthat Mr.

Iyer used Trident as the corporate vehicle to obtain the investors trust and their money which was deposited into the Tridentcorporate accounts. Mr. Iyer allegedly had exclusive control over those accounts and was the sole signing authority on Trident’s businessbank accounts. The Crown must, of course prove all of this.

[ 39 ] The Crown further says that the relationship between Trident, the Applicant (Trident’s director), Trident’s promoters (some of whom were officers of Trident) is fundamental to an understanding of the misrepresentations to the investors which the Crown says was consented to, acquiesced to and endorsed by the Applicant, Mr.

Iyer. [ 40 ] The Crown suggests that proof of proper corporate purposes for use of the funds can be proved in part by the promises made by Trident, through its representatives, to the investors. [ 41 ] From submissions of the Crown with respect to the description of the alleged scheme, it appears to me that there is a very close nexus between counts one and two and the remaining 38 counts. If Mr.

Iyer used the corporation as a means by which to obtain funds from investors and then to divert the funds to purposes other than those promised to the investors, there is a very close relationship between what he did with respect to the corporation and what he allegedly did with respect to the investors. [ 42 ] Of course, the Crown must prove all of this. [ 43 ] I find that there is a necessary factual nexus between all of the counts; that to prove a fraud or theft pertaining to individual investors necessitates evidence of the use of the investors’ funds by the company, Trident, which would, if proved, amount to a fraud or theft of the investors’ funds.

Further, given that Mr. Iyer was the directing mind of the company, what he directed to be done with the investors’ funds could amount not only to fraud or theft with respect to the investors but also could amount to fraud or theft against the company. [ 44 ] Further, with respect to a legal nexus, the allegations in counts one and two are fraud and theft by Mr. Iyer against the company.

Although there will be a different legal discussion when we are dealing with the means by which a director can perpetrate fraud against a company when he is the sole directing mind, all of the elements of fraud and theft will be the same for the investors as for the company. [ 45 ] This factor, as to the nexus between all of the counts on the indictment, weighs heavily in favour of not severing. In particular, the evidence of what happened to the money in the corporation will be necessary for counts one and two as well as counts 3 to 40.

Therefore, severing the counts will not militate against that evidence being called in a trial of counts 3 to 40. 2. The complexity of the evidence [ 46 ] Severance may be warranted where, due to the number and nature of the counts, the evidence is so complex that it would overwhelm the trier of fact in attempting to separate and clarify the issues: R v Minister , 2012 ONSC 1040 at para 37 [ Minister ]. The standard is high.

For example in McNamara the Ontario Court of Appeal affirmed a trial judge’s refusal to sever in a fourteen month trial against twenty accused involving seven conspiracy counts occurring over fourteen years. [ 47 ] In the case before me there is a 40 count indictment concerning one accused. It is set for 21 weeks (5 to 6 months). This case is not as complex nor as long as McNamara . [ 48 ] Mr. Iyer suggests that in considering the issue of complexity, a trial judge is entitled to consider the procedural inconveniences caused by the existence of multiple unrelated charges.

He concedes that the case before the court is complex. As described by the defence, there will be a significant number of paper and electronic documents not simply the oral evidence of complainants. It will involve the analysis of land titles, cash flow, representations found in PowerPoint presentations, brochures and websites at various points in time, receipts, emails and expert evidence. There are over 70 witnesses. [ 49 ] The Applicant suggests that the evidence is much more complex with counts one and two than it would be without.

He suggests that the jury might become confused because time frames are long and different, evidence relating to counts one and two will involve different evidence including expert evidence and cash flow analysis; and there will be issues of relevance and admissibility in relationship to the first two counts which will be different than the other counts on the indictment. The Applicant suggests that the trial judge’s instructions to the jury would not be sufficient to protect Mr. Iyer’s fair trial rights in light of this complexity. [ 50 ] Finally, Mr.

Iyer intends to take the position that at law the corporation is unable to be a complainant in respect to counts one and two. This, of course, will be left until there is legal argument on which to base a decision. I do not have that argument yet and do not know on what basis Mr. Iyer would make that argument. [ 51 ] It is the Crown’s position that Mr.

Iyer defrauded Trident by using the investors’ monies in the Trident bank accounts to promote his fraudulent investment scheme, a scheme akin to a “Ponzi” scheme to the detriment of Trident and its investors, its creditors and for personal gain. [ 52 ] In essence, it is the argument of the Crown that the alleged fraud on the individuals and the alleged fraud on Trident are integrally connected such that they cannot be separated.

The Crown says that there cannot be any prejudice to the Applicant given that the facts and evidence relating to the fraud perpetrated on Trident and the fraud perpetrated on the investors by the Applicant is the same, or part of the same scheme. [ 53 ] The Crown says that the Applicant errs in law by suggesting that a director cannot be charged and convicted vis-à-vis the Corporation for fraudulently using corporate assets making them unavailable for corporate purposes and not maintaining a stable financial base to finance the Corporation’s contractual obligations to the investors. [ 54 ] As I understand it, from the description of the facts that the Crown intends to prove, it appears that simply put, Mr.

Iyer is accused of taking funds from investors through a mechanism by which Trident (of which he was the sole directing mind) attracted investors’ money on promises that Trident would do certain things to make their money grow. The promises to the investors had to do with the purchase and development by Trident of certain lands in which the investors invested. The total scheme alleged involves Trident and how Mr. Iyer used Trident to perpetrate the alleged fraud.

[55] The first two counts involve the stealing of money and/or the misappropriation of funds by Mr. Iyer from Trident,presumably, therefore, making it impossible for the company, Trident, to do those things it promised to the investors. [56] I find that the allegations by the Crown in respect to Trident are intricately related to the allegations by the Crown in respect tothe individual investors. Further, the outlines of facts provided by Mr.

Iyer and the Crown with respect to these issues demonstrates thatsevering counts one and two will not reduce the complexity of the evidence significantly because the Crown must prove what happenedin Trident to completely prove the alleged fraud and theft of monies from the individual investors. This would, of course, lead tosubstantial duplication of evidence: McNamara at para 120. [57] I agree with Mr. Iyer that this is a complex matter. However, that in and of itself, is not a reason to sever the counts.

Further,as noted above, counts one and two are integrally related to the balance of the counts on the indictment and counts 3 to 40 are integrallyrelated to counts one and two. [58] The complexity of the trial would be diminished not at all or only marginally at best, if counts one and two were severed.Therefore this factor weighs against severance. 3. The desire to avoid a multiplicity of proceedings [59] Although the Applicant does not think the desire to avoid multiplicity of proceedings is relevant to these considerations, theCrown does.

It says that given scarce judicial resources and the need for judicial economy where possible, courts should avoidmultiplicity of proceedings: Last at paras 16 and 41; R v Cuthbert, 1996 CarswellBC 564 at para 9 (CA). [60] This factor looks to society’s interest in efficient and cost effective trials: Last at paras 17, 41-42; R v C(DA), 1996CarswellBC 564 at para 9 (CA) [C(DA)]. At times this can overlap with considerations of the complexity of the trial, particularly whereseverance of counts would lead to a substantial duplication of evidence.

A consideration in avoiding the multiplicity of proceedings is theadmissibility of similar fact evidence between counts; admissibility militates against severance: R v Pickton, 2009 BCCA 300 [Pickton];R v P(NA), 2002 CarswellOnt 4284 (ONCA). [61] In this case, neither the Crown nor the Applicant has argued for the purpose of this application that I must consider similarfact evidence.

This does not preclude them arguing this in the future and given the similar nature of many counts on the indictment therewill no doubt have to be a warning to the jury about how they can use the evidence in one count for evidence in another. [62] However, the absence of admissible cross-count similar fact evidence does not require severance: R v B(WB), 1998CarswellBC 618 (SC) in obiter at para 77; R v Dewar, 2001 BCCA 561. In R v Gauthier, 1995 CarswellBC 628 at para 27-31 (CA) theBritish Columbia Court of Appeal upheld a trial decision not to sever counts despite inadmissibility of similar fact evidence.

Therefore,even if, at trial, there is an argument about similar fact evidence, that does not end the matter.

The evidence may still be admissibleagainst some of the counts on the indictment. [63] The essence of the alleged scheme as described by the Crown required that the investors provide funds to Trident that theApplicant knew were not going to be used for the purposes for which the investors had provided the funds. [64] The Crown in its submissions makes clear that it must call evidence in the trial relating to the internal corporate conduct ofTrident in order to prove the counts 6 to 40 relating to the investors.

On the other hand, with respect to counts one and two, the Crownwould have to call evidence of the individual investors to show that Trident had not used the funds provided by the investors for thepurposes promised to them.

Evidence would certainly need to be duplicated in both trials. [65] It is apparent to me that if there were two proceedings, both of the proceedings could be individually somewhat shorter butwhen one considers both together, the two trials would be much longer, many witnesses would have to testify twice, and the resources ofthe court would be used at least twice, and the two hearings would require two juries. [66] Society’s interest in cost effective trials and avoiding a multiplicity of proceedings in this case would militate againstseverance. 4. The possibility of inconsistent verdicts [67] Mr.

Iyer suggests that this is not an important consideration in my deliberations. However, the Crown suggests it is aconsideration. [68] The Crown cites several cases which confirm that the court should be aware of the possibility of inconsistent verdicts: Last atpara 18, C(DA) at para 9 (CA) aff’d 1997 CarswellBC 201 (SCC); R v E(L), (ON CA), 1994 CarswellOnt 215at para20 (CA). [69] In Rocco, Graburn J dismissed an application for severance because severance could lead to inconsistent verdicts.

There theaccused wanted to argue that the counterfeit money and explosive substance found in his home had been planted there. Graburn J foundthat an inconsistent verdict could arise if one trier of fact accepted the defence and acquitted and another rejected the defence andconvicted. [70] The Crown says that Mr. Iyer participated in and controlled the scheme and allegedly misrepresented the true performance ofthe Trident investments.

It says that if the counts one and two are severed, it is possible that a verdict on those two counts may beinconsistent with a verdict on the 38 counts remaining on the indictment. [71] Given that I have found that the Crown must put the same or almost the same evidence in for both trials, it is conceivable thatthere could be inconsistent verdicts.

[ 72 ] However, for this aspect, the Crown relies on evidence obtained from the Alberta Securities Commission which evidence was an agreement made between Mr. Iyer and the Commission in which Mr. Iyer allegedly made certain admissions. I will not rely on that evidence here because the admissibility of that evidence is in question and is subject to an application by the Crown to admit.

As I have not determined that question yet, it would seem unfair to rely on it for the purposes of the severance application before me. [ 73 ] Therefore, this aspect of the factors set out in Last will not weigh in favour of nor against severance. 5. The length of the trial having regard to the evidence to be called [ 74 ] I discussed this factor above when I discussed avoiding a multiplicity of proceedings.

The trial is now set for 21 weeks, not including a variety of preliminary motions. [ 75 ] The Applicant says that a severance of counts one and two will substantially reduce the length of the trial, the complexity of the trial and the complexity of the jury charge. [ 76 ] A consideration of the “length of the trial” must take into account not only the length of this trial with the counts severed, but also the length of the second trial.

This also addresses economy of trial resources as discussed above. [ 77 ] The Crown says that the length would certainly increase because it would have to repeat much of the evidence. I discussed this above in

section 4 of these reasons and set out the duplicity of evidence that would be required. [ 78 ] The Crown states in its argument that it intends to call about 74 witnesses, and to submit in excess of 500 documentary exhibits including a series of Trident PowerPoint presentations and a website. The Crown also anticipates calling evidence related to the source and deposit analysis of the corporate and personal bank accounts, the misrepresentations that were made and the promises made to the investors.

The Crown anticipates that most of this evidence would be required for all counts on the indictment. [ 79 ] Severance may shorten one trial. However, because there would be two trials resulting from severance, the total length would be longer than one trial and could be significantly longer. Having to call this evidence in both trials would, consequently lengthen the time for both trials taken together. [ 80 ] Given that it is likely that the length of the trial would be increased, this factor weighs heavily against severance. 6.

Whether the accused intends to testify on one count but not another [ 81 ] It is apparent from the Applicant’s argument that this factor under Last is the most important one from the perspective of Mr. Iyer, and he would expect the Court to consider this aspect as weighing heavily in favour of severance. [ 82 ] The Supreme Court has identified this factor as a significant but not determinative factor: Last at para 27 ; see also R v McMath , 1997 CarswellBC 2639 per Prowse JA at paras 37-38.

The concern underlying this factor is the accused’s ability to control his defence and his ability to decide to testify to one count and not to others: para 25. Connected to this concern is the accused’s right against self-incrimination which may be triggered where the accused is effectively forced to testify on counts the Crown has extensive evidence on and is thereby forced to testify to the rest of the counts: Ticknovich at para 105 . The test has subjective and objective parts.

The accused must positively express an intention to testify on one but not all counts and the court must satisfy itself that the circumstances suggest an objective rational basis for testifying on one but not all counts: Last at para 26 . For example, the accused could provide information on the type of defences available to him: Last at para 26 . [ 83 ] The Applicant states affirmatively that he intends to testify on counts one and two but not on the other counts. He does so through an affidavit sworn by one Jonathon Kerber, an associate with the firm of Mr. Iyer’s lawyer. Mr.

Kerber attests that he was advised “by Mr. Iyer that it is his clear intention of testifying at his trial in relation to counts one (1) and two (2) of the said Indictment.” I note that Mr. Kerber does not swear that he verily believes Mr. Iyer’s intentions to be true. [ 84 ] This statement by Mr. Kerber may satisfy the subjective criteria, which is that the Applicant expresses a positive intention to testify. [ 85 ] However, the second inquiry, that is, that the court must satisfy itself that the circumstances suggest an objective rational basis for testifying on one, but not all counts, is more difficult.

In Last , the Supreme Court of Canada states that “...a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, ...The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.”: at para 26. [ 86 ] The affidavit of Mr. Kerber does not state what the objective criteria might be, nor does it state what his defences might be, but in his written argument, Mr.

Iyer states the following: 1. that he will testify that he was not deceitful or dishonest in his dealings with Trident. 2. that he will testify that he developed a business plan for Trident that he believed would benefit Trident. 3. that he had a right to be remunerated for his work done on Trident’s behalf. [ 87 ] With respect to his evidence that he was not deceitful or dishonest this statement would be self-serving.

Rather, the circumstances surrounding the events will assist in determining if he was or was not deceitful or dishonest. [ 88 ] With respect to the business plan, I presume that I am to take it from the argument that the evidence of his business plan cannot be obtained through any Crown witnesses. However, I do not have anything specific to support this presumption. Therefore I will

give this little weight. [ 89 ] With respect to his remuneration, I am to presume that the extent of that remuneration cannot be obtained from other witnesses who could be called by the defence, for example, an expert on the topic of remuneration of directors and officers of a corporation. Again, Mr. Iyer has given me little other than a bald statement to rely on. Certainly, this aspect relates to whether the funds provided by the investors were used for improper personal purposes. [ 90 ] His evidence, Mr.

Iyer says, will focus on his relationship with Trident and he says that the evidence is not relevant to the transactions involving Trident’s investors. I disagree. What the Applicant directed Trident to do with respect to the use of the investor’s funds is relevant to the allegation of fraud relating to each investor. [ 91 ] With respect to his statement that the evidence he would give about Trident is not relevant to counts 3 to 40, that does not comport with my understanding of the case for the Crown.

As I have set out earlier in these reasons, simply put, the Crown must establish the alleged fraud or theft by showing, among other things, that the investors gave their funds to Trident for certain purposes on representations that Trident would use the funds for those purposes. The Crown must show that Trident did not use the funds for that purpose. Given that Mr. Iyer was the directing mind of Trident, the Crown will have to show that he intentionally directed Trident to take the funds knowing that they would not be used for the purposes being promised.

The Crown will also have to show the purposes to which the funds were put and that those purposes were improper (fraudulent). Therefore, evidence pertaining to the internal corporate operation of Trident is integral to the alleged fraud or theft from the investors as well as from Trident itself. [ 92 ] Mr. Iyer in his argument further says that “the relationship between [Mr. Iyer] and investors is disjointed because of how Trident operated. Any transactions done with Trident do not involve the alleged events in counts one and two.

In fact, Trident representatives are involved in most of these transactions in their entirety and do not involve [Mr. Iyer] directly.” [ 93 ] First, as I have set out earlier, the transactions by Trident are involved in all 40 counts. Second, as to the operations of the representatives of Trident, the Crown, in order to convict Mr. Iyer, would have to show that these other representatives of Trident were operating under his direction. To be clear, the accused in these matters is Mr. Iyer and therefore, the Crown must show that Mr. Iyer was directing the operations including the operations of Trident. [ 94 ] Mr.

Iyer states that the accused’s ability to control his defence, and, more specifically, “... his right to decide whether or not to testify with respect to each of the counts should not be impaired by inappropriate constraints: Last at para 25 . This, Mr.

Iyer says, would be precisely what would happen if he is tried on counts one and two at the same time as counts 3 to 40.Those inappropriate constraints would be that he would be forced to give evidence on counts 3 to 40 if he wanted to give evidence only on counts one and two. [ 95 ] However, the Crown must prove what happened in Trident with the investors’ funds to show that the funds taken by Trident were used for purposes other than those promised to the investors. The evidence will considerably overlap the evidence required for proof of fraud against Trident.

Even if counts one and two were to be severed, the Applicant would be faced with making a decision as to whether to give evidence as he set out in his argument. [ 96 ] These objective reasons suggested by Mr. Iyer do not have enough substance for me to determine that it is necessary or even essential for Mr. Iyer to give evidence himself at a trial involving all counts on the indictment.

In any event, he will face the decision as to whether to give evidence even if I sever counts one and two. [ 97 ] In any event, appellate courts have recognized that the accused’s intention to testify on some but not all counts is not necessarily determinative. In R v Egoroff , 1999 CarswellAlta 622 (CA) , Fruman JA stated, “The desire of an accused to testify on some counts and not others is an important factor in deciding a severance application. But there is no absolute right to severance in those circumstances:” at para 3.

In R v Aburto , 1998 ABCA 243 , the Alberta Court of Appeal confirmed a finding of a trial judge that, although the accused wanted to testify on a sexual assault charge but not a weapons charge, severance was not appropriate because of the duplication of evidence involved in severance. [ 98 ] In R v Steele , 2006 BCCA 114 Huddart JA reaffirmed this point and highlighted that much depends on the element of prejudice to the accused: para 15.

However, as Finch CJBC noted in Pickton at para 91 , the fact that the accused faces “a more difficult case to answer” does not of itself give rise to reasoning or moral prejudice. Further, Watson J (as he then was), in Ticknovich , reasoned that the court should not grant severance merely to allow the defence to put forward different theories on connected counts: para 103.

He further notes that permitting counts to proceed together does not conscript the accused against himself where he might find it “ practically necessary” (Emphasis original) to give evidence on some but not all counts: para 106. [ 99 ] In this case, there may be a difficulty with the jury descending into reasoning or moral prejudice, but, as I have discussed, this would be the case even if counts one and two were severed. Again, jury instructions will play an important role. [ 100 ] In conclusion, although Mr.

Iyer has satisfied the subjective part of the test by stating that he intends to give evidence, he, in my view has not satisfied the objective part of the test. The alleged fraud necessarily involves evidence both from the individual investors and evidence about the transactions in Trident. He has not met the objective part of the test by demonstrating that there is evidence he can give for counts one and two that he would not have to give for counts 3 to 40. Even if counts one and two were severed, Mr.

Iyer, based on his argument, would have to give evidence in any event because he might want to answer the evidence put in by the Crown about Trident and his role in Trident to establish the fraud. [ 101 ] One other issue came up in oral argument and that is whether it would be possible to limit the cross-examination of Mr. Iyer by the Crown so that he was not conscripted against himself with respect to counts 3 to 40. [ 102 ] Mr. Iyer points out that a solution which would limit the Crown’s cross-examination of him is not a viable option given the presence of the jury. A jury may question why Mr.

Iyer, who took the stand to defend himself on counts one and two, did not put forward a defence or deny the allegations on the remaining counts. Therefore he would be forced to testify with regards to the remaining 38 counts. Further, instructions to a jury telling them to consider his evidence on counts one and two but not counts 3 to 40 would only

confuse them and could lead to improper adverse inferences being drawn by the jury. Again, this is going to arise whether I sever counts one or two or not. [ 103 ] I find that Mr. Iyer has satisfied the first part of the analysis required under Last but has not satisfied the second part of the analysis which requires him to show the Court that there is an objective basis for giving evidence on one count but not others.

In any event, he has not satisfied me that I should give much weight to this factor in weighing and balancing all of the factors I must consider for a severance. [ 104 ] Finally to make clear an area of concern by Mr. Iyer in his argument, it is clear that whatever he has said here about his intentions, he is not bound by that statement when we get to trial. Last states: “... the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate”: at para 26. 7.

General prejudice to the accused [ 105 ] Three significant concerns arise under this factor: “cross-pollination” on credibility assessments, propensity reasoning, and reasoning prejudice: see Last at para 36 ; Handy at paras 139 and 144 . [ 106 ] Prejudice by cross-pollination occurs where the trier of fact uses a negative assessment of the accused’s credibility on one count to impugn the accused’s credibility on another count. [ 107 ] In this case, because there are multiple counts by numerous complainants, there is a risk of cross-pollination.

However the application before the Court is not to sever each of the counts pertaining to each of the complainants. The jury must be instructed as to the risk of assessing the accused’s credibility on the counts on which he gives evidence, if he does, as against him on other counts. [ 108 ] It is not unusual for the court to warn a jury about the use of evidence or findings on one count as against the accused on other counts. It is nevertheless a risk for which the trial judge must provide clear instructions and we expect juries to be able to follow those instructions.

I conclude on this point that the risk of cross-pollination can be mitigated by instructions to the jury. [ 109 ] Prejudice by propensity reasoning occurs where the trier or fact concludes that because the accused is guilty under one count they are the kind of person who would commit the second. Propensity reasoning has also been referred to as “moral prejudice:” Handy at para 139 . A conviction based on moral prejudice deprives the accused of his right to be presumed innocent under s 7 and 11(

d) of the Charter : it shifts the burden of proof because the trier of fact concludes the accused is more likely to have committed the offence. [ 110 ] Reasoning prejudice occurs where the trier of fact becomes confused or distracted by the quantity or similarity of evidence tendered on multiple counts or unrelated transactions: R v Handy at para 144-147 . Reasoning prejudice can be aggravated by large amounts of time hearing evidence on distinct but connected or similar charges. [ 111 ] Reasoning and moral prejudice are connected but distinct.

A trier of fact may succumb to reasoning prejudice where the trier loses focus on the elements of the charge and instead becomes distracted by evidence of the accused’s negative character. A trier of fact succumbs to moral prejudice where the trier uses evidence of the accused’s negative character to conclude he is likely to have committed the alleged crimes.

Reasoning prejudice concerns distraction from the issue at trial; moral prejudice concerns a shift in the burden of proof. [ 112 ] If the risk of prejudice outweighs the probative value of hearing the counts together and the ability of the trial judge to instruct the jury on how to properly use the evidence, then this factor weighs in favour of severance: Ticknovich at para 50 . Prejudicial reasoning presents the risk of undermining trial fairness: R v JCL , 2012 ONSC 6603 at para 9 .

A jury trial heightens the risk of prejudice, but even a trial judge is not immune to prejudice: R v Baird , 2013 MBPC 11 at para 21 ; Minister at para 53 ; R v Villeda , 2011 ABCA 86 . [ 113 ] The Applicant says that the jury may not have the ability to turn its mind from the allegations of the Crown in counts 3 to 40 which may not apply to counts one and two with respect to Trident. Further, given the inherent differences found in counts one and two from counts 3 to 40, the Applicant says there will be a considerable risk of distracting, confusing and overwhelming the jury. [ 114 ] The Crown says that Mr.

Iyer’s relationship and control over Trident is highly probative of and relevant to all the counts. It says that proceeding with all the counts at once would not undermine Mr. Iyer’s rights to basic procedural fairness. The nature of the offenses is intertwined and as such there is an interest in having the same evidence heard on respective counts, thus getting at the truth. [ 115 ] There is no doubt that given the nature of the similar charges in counts 3 to 40, that there is a risk of propensity reasoning. This must be dealt with in the instructions to the jury.

However, we are concerned here with counts one and two. As I said above, those counts relate to what happened to the funds invested by investors in counts 3 to 40. Even if the counts were severed, the evidence about Trident would have to be given to support the alleged fraud and theft. Counts one and two also involve whether Mr. Iyer committed fraud against the company.

The evidence to prove these charges I expect will substantially overlap the evidence to support the allegations of fraud with respect to the individual investors. [ 116 ] Therefore, severing counts one and two will have little impact as to the evidence before the court on the balance of the counts. The jury will have to be properly instructed to ensure that its reasoning processes do not lead them into forbidden territory as set out herein. [ 117 ] I find that although there is a risk of reasoning prejudice by the nature of the indictment and the charges, this factor does not weigh heavily in favour of severance.

C. Conclusion on Severance [ 118 ] In considering and weighing the factors set out in detail above, I conclude that the Court should not sever counts one and two.

[ 119 ] Weighing heavily against severance are the legal and factual nexus between the counts, the desire to avoid a multiplicity of proceedings; the length of the trial; and the complexity of the proceedings. The evidence will likely be the same for counts 3 to 40 concerning the investors as it would be in counts one and two concerning Trident. A separate trial for counts one and two may be less complex but would necessitate calling at least some of the evidence concerning individual investors. [ 120 ] Weighing in favour of severance is the accused’s intention to testify and general prejudice to the accused.

However, the accused did not convince me that there was evidence that would be given in a severed trial that would not have to be given in the existing trial because a necessary part of the Crown’s case in counts 3 to 40 involves what happened to the funds within Trident. [ 121 ] A factor which is neutral is the possibility of inconsistent verdicts.

As I set out above, given the evidence relied on by the Crown for this factor, I am not giving it any weight. [ 122 ] The fact that the Applicant intends to testify weighs slightly in favour of severance, but is outweighed substantially by the legal and factual nexus, the increased length of the trial for counts 3 to 40 combined with a second trial for counts one and two, and the desire to avoid a multiplicity of proceedings. [ 123 ] In considering all of these factors, the balance between the Applicant’s interest in a fair trial, based on admissible evidence, and society’s interest in ensuring justice is done in an efficient and cost effective manner weighs in favour of denying the severance application III.

Conclusion [ 124 ] I deny the application of the Applicant for severance of counts one and two of the indictment. Heard on the 13 th day of September, 2013. Dated at the City of Edmonton, Alberta this 6 th day of December, 2013. A.B. Moen J.C.Q.B.A. Appearances: Brian Beresh, Q.C. & Patrick W. Bigg, student-at-law Beresh Cunningham Aloneissi O’Neill Hurley for the Applicant Erika Bottcher & Robert J. Sera for the Crown

APPENDIX A IN THE COURT OF QUEEN”S BENCH OF ALBERTA INDICTMENT JUDICIAL DISTRICT OF EDMONTON HER MAJESTY THE QUEEN AGAINST VIMAL CHANDRA IYER STANDS CHARGED THAT HE: 1. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did steal money, the property of Trident Properties Ltd. of a value exceeding $5,000.00, contrary to

section 334 (

a) of the Criminal Code of Canada . 2. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Trident Properties Ltd. f money by misappropriating or diverting corporate funds of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 3.

On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did commit theft having received investor money or a power of attorney with the direction that the money or part of it, or the proceeds or a part of it, or the property shall be applied to a purpose specified in the direction, to wit: as specified in the contract and the representations made to the investors, and did fraudulently and contrary to that direction apply the money, of a value exceeding $5,000.00, to other purposes, contrary to section 332(1) of the Criminal Code of Canada . 4.

On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did steal money, the property of the investors of trident properties ltd., of a value exceeding $5,000.00, contrary to

section 334 (

a) of the Criminal Code of Canada . 5. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud persons whether ascertained or not, the investors of trident properties ltd., of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 6. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Kimberly and Adrian Loh of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada .

7. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Carolyn and Craig Melnychuk of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 8. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Michael and Doris Calimente of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 9. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Jason Everett and Alana Yim of money of a value exceeding $5,000.00, contrary to

section 380(1 )(

a) of the Criminal Code of Canada . 10. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Alvin and Jay-Lynn Loh of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 11. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Francis Roque of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 12. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Lorraine Jones and Brenda Jones of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 13. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Michelle Marusiak-Klassen of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 14. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Ronald and Gloria Kwan of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 15. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Judy Stratford of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 16. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud louis and Mirella Nardi of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 17. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Deborah and Mario Bilhete of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 18. On or between the 1 st day on March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Paul Roque of money of a value exceeding $5,000.00, contrary to

section 380(1) (

a) of the Criminal Code of Canada . 19. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Kent Reader of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 20. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Darrel and Michelle Pendry of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 21. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Steven Andrade of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 22. On or between the 1 st day qf March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Adele Hartum of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 23. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Jose and Leonila Salas of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 24. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Edward Gallagher of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 25. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Barry and Janice Oppen of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 26. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Generoso Alvarado of money of a value exceeding $5,000.00, contrary’ to section 380(1) (

a) of the Criminal Code of Canada . 27. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Theresa David of money of a value exceeding $5,000.00, contrary to

section 380(1 )(

a) of the Criminal Code of Canada . 28. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Milton Mellot of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 29. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Arlene Vaxvick of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada .

30. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Margaret Vogel of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 31. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Chris Hardwick of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 32. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Kaoru Ohta of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 33. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Robb Lima and Katherine Czerlau-Lima of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 34. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Brian Jay and Robert Tourond of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 35. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Jason Gill, Jonathan Gill and Andrea Paskewich of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 36. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Craig Stanley of money of a value exceeding $5,000.00, contrary to

section 380(1 )(

a) of the Criminal Code of Canada . 37. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Vijendra Prasad and Suraj Prasad of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 38. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Bronko Kornhauzer of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada . 39. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Steve and Rita Ainsworth of money of a value exceeding $5,000.00, contrary to

section 380(1 )(

a) of the Criminal Code of Canada . 40. On or between the 1 st day of March, 2007, and the 31 st day of December 2009, at or near the City of Edmonton, in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud Christopher Johnston of money of a value exceeding $5,000.00, contrary to section 380(1) (

a) of the Criminal Code of Canada .

APPENDIX B IN THE COURT OF QUEEN”S BENCH OF ALBERTA INDICTMENT JUDICIAL DISTRICT OF EDMONTON HER MAJESTY THE QUEEN AGAINST VIMAL CHANDRA IYER Section 591(3) (

a) of the Criminal Code , RSC 1985, c C-46 states in part:

(1) Subject to

section 589, any number of counts for any number of offences may be joined in the same indictment, ...

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.

(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts; and ...

(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts (

a) on which the trial does not proceed; or ...

(4.1) The court may make an order under subsection (3) that takes effect either at a specified later date or on the occurrence of a specified event if, taking into account, among other considerations, the need to ensure consistent decisions, it is satisfied that it is in the interests of justice to do so.

(4.2) Unless the court is satisfied that it would not be in the interests of justice, the decisions relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that are made before any order issued under subsection (3) takes effect continue to bind the parties if the decisions are made — or could have been made — before the stage at which the evidence on the merits is presented. (5) ... (6) ...