R. v. Rajagopal, 2013 ONCJ 376

Citation: R. v. Rajagopal , 2013 ONCJ 376 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RAMANAN RAJAGOPAL Before Justice Borenstein Heard on April 15, 16, and 17 th , 2013, May 7 and 16 th , 2013 Reasons for Judgment released on July 10, 2013 Mr. P. Fraser ............................................................................................................. for the Crown Ms. P.

Locke ............................................................................. for the accused Ramanan Rajagopal BORENSTEIN J.: [ 1 ] Ramanan Rajagopal is charged with eight charges related to the fraudulent sale of four Records of Employment (“R.O.E.”). He is alleged to have played a significant

part in a scheme whereby people would pay approximately $3,000 for a fraudulent R.O.E. stating that they had been employed when they had not. Those R.O.E.s were then submitted by the purchaser to Service Canada where they would obtain Employment Insurance (“EI”) benefits to which they were not entitled. [ 2 ] The scheme was widespread. One witness testified that he sold approximately 1,000 fraudulent R.O.E.s. The amount of loss to the government of Canada is large. [ 3 ] The witnesses who testified in this trial were, for the most part, engaged in dishonest conduct.

Careful scrutiny of their evidence is warranted in this case. The Crown relies heavily on documentary evidence introduced with Canada Evidence Act notice as corroboration for these witnesses. There was much hearsay introduced at this trial. Counsel agreed that the hearsay should be heard provisionally, subject to a ruling at the end of the case. Only those statements ruled admissible would then be considered. [ 4 ] The Crown alleges Ramanan Rajagopal was involved in the sale of four fraudulent R.O.E.s to Amirthalingam Vaseekaran, Rukmini Nanthakumaran, Kunaseelan Kandasamy and Sharmila Siyabdeen.

For each of those transactions, the accused faces charges of fraud under and forgery related charges. [ 5 ] The Crown called no evidence in relation to the R.O.E. allegedly sold to Sharmila Siyabdeen and those two counts will be dismissed. This judgment will focus on the remaining three: Rukmini Nanthakumaran, Amirthalingam Vaseekaran and Kunaseelan Kandasamy. [ 6 ] I heard from witnesses who were involved in this scheme as well as accountants and investigators. [ 7 ] No defence was called other than one investigator to prove a prior inconsistent statement of Kandasamy. The Rukmini Nanthakumaran R.O.E.

Overview [ 8 ] It is alleged that Rukmini and her husband Paramalingam purchased a fraudulent R.O.E. from Satgunaraga Agembaram in 2009. That R.O.E. falsely stated that Rukmini worked for a company for six and a half months earning over $14,000.00. It is alleged that Agembaram delivered that fraudulent R.O.E. to Rukmini and her husband but told them that the accused was behind the R.O.E. Agembaram gave them the accused’s phone number. There are documents the Crown alleges implicates the accused in this fraud.

Ultimately, the charges relating to Rukmini depend upon the admissibility of the hearsay utterances of Agembaran implicating the accused. Agembaram was not called as a witness. Rukmini`s evidence [ 9 ] Rukmini is married to Mr. Nanthukaran Paramalingam. She owned a grocery store. In 2009, her business was poor.

[ 10 ] Paramalingam told Rukmini that he had spoken to Agembaram about this scheme. Rukmini’s husband persuaded her to participate in this scheme. Rukmini sold her jewellery to purchase the R.O.E. [ 11 ] Agembaram came to their home in 2009 and met with both Rukmini and Paramalingam. [ 12 ] Paramalingam did all of the talking at that meeting. Rukmini’s evidence was confusing as it initially appeared that she was recounting information her husband had told her that he received from Agembaram.

It later appeared that Rukmini was present during the meeting and was testifying about the conversation she heard between her husband and Agembaram. This confusion was made greater by the fact that some of Rukmini’s testimony did recount information her husband told that Agembaram had told him prior to that meeting. [ 13 ] At the meeting at Rukmini’s home, Agembaram said that he could get a fraudulent R.O.E. from the accused for $3,000. He told them that his cut was $500.00 and that the accused would get the rest.

Rukmini gave Agembaram the money and purchased the fraudulent R.O.E. from Agembaran. [ 14 ] Agembaram gave the R.O.E. to Rukmini which is now Exhibit 1 in this trial. [ 15 ] The R.O.E. falsely stated that Rukmini worked for 2196577 Ontario Inc. between January 10, 2009 and July 18, 2009 and that she had insurable earnings of $14,601.60. Rukmini testified that she never worked for that company. Vaseekaran is listed as the issuer of the R.O.E. to Rukmini.

Rukmini testified that Vaseekaran is from her husband’s village in Sri Lanka but she had never spoken to him about the R.O.E. [ 16 ] Rukmini’s fraudulent R.O.E. enabled her to collect approximately $9,500 in EI benefits. [ 17 ] When Rukmini needed a T-4 in relation to this false employment, Agembaram said he would obtain it for her from the accused but was having difficulty getting the T-4. He told Rukmini, or her husband, that they should contact the accused directly and gave one of them the phone number 647-402-2284, which, based on other evidence, is the accused’s phone number.

Rukmini’s evidence was unclear whether she or her husband received the accused’s phone number from Agembaram. [ 18 ] Rukmini never received a T-4. She never met or spoke to the accused. Nanthukaran Paramalingam [ 19 ] Rukmini’s husband Nanthukaran Paramalingam testified that he learned of Agembaram and this scheme from a friend. He called Agembaram and then persuaded his wife to go along with this scheme. [ 20 ] Agembaram attended their home. They paid Agembaram $3,000 and he gave them the R.O.E.

Agembaram was to provide a T-4 as well but eventually gave Paramalingham the accused’s phone number (647-402-2284) and told him to get it from the accused. Paramalingam’s recollection of the phone number was refreshed from his statement to the police. He had given the police a piece of paper with the phone number but that piece of paper was written out by Rukmini, who copied the number from a piece of paper Paramalingam had. Paramalingam never contacted the accused and never received the T-4.

Vaseekaran [ 21 ] As indicated, Vaseekaran’s name appears as the issuer of Rukmini’s R.O.E. [ 22 ] Vaseekaran testified that, in 2009, he wanted to open a cleaning business and needed a line of credit. He was told that the accused could help his business. Vaseekaran knew the accused operated Recovery Rehabilitation Physio Clinic (“Recovery Rehab”) located at 885 Progress Avenue.

A corporate profile report from the Ministry of Government Services introduced as a business record lists the accused as the administrator of Recovery Rehab, which was incorporated in May 2008 with a corporate address of Suites 15 and 16, 6545 Highway 7 East. Both of those addresses have significance in this case. [ 23 ] The accused met Vaseekaran who and told him that he would help. He told Vaseekaran that he could operate his new business out of the accused’s office on Progress Avenue. [ 24 ] Vaseekaran incorporated 2196577 Ontario Inc. which was the employer listed Rukmini’s R.O.E.

A corporate profile report lists Vaseekaran as the administrator of the numbered company and lists the address as 885 Progress Avenue, suite 205. That is the same address as the accused’s recovery clinic, though a different suite number. [ 25 ] It was only the accused and Vaseekaran involved in this company. Vaseekaran gave the accused a cell phone with the phone number 647-929-6203 for the business. He left the setting up of the business with the accused. The business never began.

Eventually, Vaseekaran wanted out of the company and his name removed from the corporation. [ 26 ] The accused took Vaseekaran to an accountant to sign the papers to remove his name from the corporation. When Vaseekaran was challenged on details of that meeting, he testified that he was impaired when he went to the accountant. [ 27 ] The corporate profile report does show a change of directors in 2010 removing Vaseekaran as a director.

Vaseekaran was cross-examined on his statement to the police that he was removed from the corporation in 2009 and testified that he must have got the date wrong when speaking to the police. [ 28 ] Vaseekaran testified that, to the best of his knowledge, the numbered company never operated and had no employees. He did not issue the R.O.E. to Rukmini and it was not his signature on the R.O.E.

[ 29 ] Vaseekaran testified that the accused told him he could provide false R.O.E.s for $3,500 each. The accused gave Vaseekaran a false R.O.E. for Vaseekaran’s wife, Ms. Sivagnaam, indicating that she worked at LIANSON’s and earned over $16,000 when she had not. Vaseekaran’s wife submitted that R.O.E. and collected EI benefits which they now have to repay. Vaseekaran testified that he did not know that R.O.E. was fraudulent. [ 30 ] In cross-examination, Vaseekaran testified that he obtained a $15,000 business line of credit when he incorporated the company which he turned over to the accused.

As repayment, the accused gave Vaseekaran a $17,000 cheque. When Vaseekaran deposited that cheque at the bank, the teller kept him at the counter and called the police. The cheque, as it turned out, was fraudulent. Vaseekaran claimed that he did not know the cheque was fraudulent yet he pled guilty in relation to that cheque. He also admitted that he attended a casino with the accused after being charged in relation to that cheque. [ 31 ] It is obvious that Vaseekaran’s evidence must be treated with scepticism and caution. Wilson- Singarayar [ 32 ] Mr.

Wilson-Singarayar was another witness in this case. [ 33 ] He was the principal of LIANSONS corporation. He sold between 830 to 1000 false R.O.E.s. He pled guilty to fraud over $5,000 in 2011 and was ordered to make $230,000 restitution and was sentenced to 18 months of house arrest. [ 34 ] Wilson-Singarayar knew the accused. The accused told him he knew people who were interested in fraudulent R.O.E.’s. [ 35 ] Wilson-Singarayar gave two fraudulent R.O.E.s to the accused for both he and his wife which falsely stated that both worked at LIANSON’s when they had not. Those were given to the accused for free.

They are Exhibits 4 and 5. I have cautioned myself not to rely on the fact that the accused may have allegedly made a fraudulent employment insurance claim on his own behalf as evidence of his character or propensity. The relevance relates to phone numbers on the R.O.E. submitted to Service Canada as that number matches the phone number Rukmini says she was given for the accused. [ 36 ] The accused began buying phony R.O.E.s from Wilson-Singarayar for at least $1,500 each. The accused began paying for the R.O.E.s in advance and would then sell them. Thereafter, he did not pay for them in advance.

Their business relationship ended when the accused stopped paying for the R.O.E.s and owed Wilson-Singarayar money. In cross-examination, Wilson-Singarayar agreed that the accused owed him $50,000. [ 37 ] In cross-examination, Wilson-Singarayar admitted that, on the two times that he spoke to the police before his guilty plea, he did not mention the accused’s alleged involvement. He testified that, until he pled guilty, he had been protecting himself and did not tell the police everything. He provided names after his guilty plea.

The accountants and bookeepers [ 38 ] Iyedurai Selladurai was the accountant for Vinylbond, one of the companies that was listed falsely as the employer in fraudulent R.O.E.s. Selladurai knew the accused. He knew he was a partner in Recovery Rehab. Sometime in 2010, the accused brought several people to Selladurai and told him they were going to buy Vinylbond. The accused told Selladurai to complete the necessary paperwork. [ 39 ] An accountant, Mr. Mahenbranthan, testified that in 2010, a male came to see him saying he was manager of Vinylbond and needed T-4’s for 13 or 14 employees.

He could not identify the male he dealt with other than that he was male Tamil who said his name was Ramanan. Kunaseelan Kandasamy [ 40 ] Kunaseelan Kandasamy testified. In 2010, he had no job. His friend Rajalingam Nagalingan, whom he called Raja, told him that he knew an honest way to make some money. Raja could get him a “paper” which he could take to “Manpower” and would then receive money. He was speaking of this fraudulent R.O.E. scheme. [ 41 ] Kandasamy obtained the R.O.E. which indicated that he was worked at Vinylbond when he had never worked there. That is Exhibit 7.

He submitted the R.O.E. to Service Canada and collected employment insurance benefits to which he was not entitled. [ 42 ] As to how he obtained the R.O.E., Kandasamy testified that Raja introduced him to Ramanan. Raja told him that Ramanan would provide the R.O.E. He met Ramanan on several occasions and identified the accused as Ramanan. He identified the accused from a photo line-up but there was confusion in the evidence as to whether he told the police that the male he identified was Raja or Ramanan.

In any event, he maintained that the accused was Ramanan. [ 43 ] The accused met with Raja and Kanadasamy at a Tim Horton’s. Once his memory was refreshed from his statement to Service Canada, he recalled that a fourth person was at that meeting as well. [ 44 ] Kandasamy was vague and somewhat inconsistent as to the specifics of that meeting and his memory had to be refreshed. [ 45 ] At Tim Horton’s, Raja and the accused told Kandasamy that the R.O.E. would cost $3,000 and that he could pay for it in instalments.

At one point, the accused and Raja left Tim Horton’s, walked across the street, entered 1560 Brimley Road and then returned. No money was paid during the meeting at Tim Horton’s. Kamdasamy was questioned about whether he told the investigator that he paid money at Tim Horton’s. He maintained that he did not pay any money that particular day.

[ 46 ] After the meeting, Kandasamy drove to Brampton with Raja and obtained the R.O.E. from Raja. [ 47 ] After his memory was refreshed, Kandasamy confirmed that the accused gave him he following phone numbers, 647-402- 2284 and 647-772-6520, which were for the accused. The Investigators [ 48 ] Peter Sanginesi, an investigator with Service Canada, testified and explained Service Canada’s business records. [ 49 ] R.O.E.s are controlled documents. Each one has a unique serial number.

When an employer requests one or more R.O.E.s from Service Canada to be given to employees, Service Canada records the date the R.O.E. is requested and the address to where it is sent.

It does not record which individual requested the document. [ 50 ] Rukmini’s R.O.E., Exhibit 1, was requested in 2009 by 2196577 Ontario Inc. and was sent to 157 Brimley Road, Suite 127. [ 51 ] Rukmini’s R.O.E. lists the address of the numbered company as #205 – 855 Progress Avenue in Toronto. [ 52 ] Kandasamy’s R.O.E., Exhibit 7, was sent to Vinylbond at units 15 and 16, 6545 Highway # 7 East, the same address listed with the Ministry for Recovery Rehab. [ 53 ] Kandasamy’s R.O.E. lists VinylBond’s address as 1560 Brimley Road, Unit 131, the same address as the numbered company though a different suite number. [ 54 ] According to Mr.

Sangenisi, the accused submitted an employment insurance claim and gave his phone number as 647- 402-2284, the same number given to Rukmini and the same number Kandasamy testified belonged to the accused. [ 55 ] Mr. Dave Scott is an investigator with Human Resources and Skills Canada. In 2011, he interviewed Kandasamy. He recorded the interview in his notes which he has since destroyed. He recalled a language barrier and Kandasamy’s wife assisting with

interpretation. He did not recall what comments came directly from Kandasamy and which came from his wife. While he did recall a comment that Kandasamy paid $3,000 for the R.O.E. at Tim Horton’s, I would not rely on Mr. Scott’s vague recollection as a prior inconsistent statement from Kandasamy. [ 56 ] That was the evidence called in this case. [ 57 ] As already stated, those witnesses called who were involved in this scheme require careful scrutiny and caution before accepting their evidence.

The Crown submits that their evidence together with the documentary evidence establish Rajagopal’s guilt beyond a reasonable doubt. [ 58 ] The defence submits that their evidence cannot be relied upon despite any documentary evidence. [ 59 ] Of those involved in this scheme, Rukmini was the most credible. Vaseekaran, Kandasamy and Wilson-Singarayar were dishonest and self-interested in their testimony.

That is perhaps not surprising given that they were involved in purchasing and submitting phony R.O.E.s. [ 60 ] Not only were they involved in this dishonest scheme, Kandasamy claimed that he believed this was an honest way to make money. He was a dishonest witness. There were both reliability and credibility concerns with his evidence. [ 61 ] Wilson-Singarayar conduct in selling so many fraudulent R.O.E. causes great concern about relying on his evidence. [ 62 ] Vaseekaran’s evidence raises credibility and reliability concerns.

His claim that he did not know the cheque given to him by the accused was fraudulent flies in the face of his guilty plea. His involvement with the fraudulent R.O.E. for his wife also raises credibility concerns. [ 63 ] I would not rely on the evidence of these witnesses unless their material evidence was significantly corroborated by credible evidence. [ 64 ] I agree with the Crown that, with respect to Rukmini, despite her involvement in this fraud, for the most part, concerns with her evidence relate to reliability and not her credibility.

She seemed as though she were honestly trying to tell the Court what had occurred, as opposed to Kandasamy or Vaseekaran. [ 65 ] Rukmini’s husband was vague in his recollection. For the most part, his evidence raised reliability concerns more than credibility ones. [ 66 ] As indicated at the outset, the Crown called no evidence in relation the fraud involving Sharmila Siyabdeen, and those charges will be dismissed. [ 67 ] Turning to the charges related to the Kandasamy R.O.E., Kandasamy obtained a fraudulent R.O.E. claiming he worked for Vinylbond when he did not.

He obtained the R.O.E. from Raja after a meeting at Tim Horton’s with Raja and the accused where both Raja and the accused spoke about the sale of the R.O.E. At one point, the accused and Raja went to 1560 Brimley Road and returned. [ 68 ] While his evidence needs to be treated with caution, and cannot be accepted without significant, credible confirmation, the evidence also establishes conclusively that the blank R.O.E. given to Kandasamy was sent by Service Canada to VinylBond at the

address of #15 -16, 6545 Highway 7. That is the address listed in the corporate profile report for Recovery Rehab where the accused isthe administrator. [69] The evidence further establishes that the accused has a connection to Vinylbond.

He went to the accountant telling himthat the two males would be buying Vinylbond and to prepare the necessary paperwork. [70] The address for Vinylbond on the R.O.E. in question is 1560 Brimley Road, Unit 131. [71] Moreover, the other accountant testified that someone named Ramanan, who he did not identify, claimed to be themanager of Vinylbond and was seeking T-4’s for numerous employees. This last point is minor. [72] Those factors corroborate Kandasamy. His evidence could not be relied on on its own.

But the factors mentionedcorroborate his evidence concerning the accused’s involvement in the sale of his R.O.E. I am satisfied beyond a reasonable doubt that theaccused was a party to the sale of the fraudulent R.O.E. to Kandasamy. Charges in relation to Rukmini. [73] She too was involved in a fraud. She and her husband dealt with Agembaram. She obtained a fraudulent R.O.E. fromAgembaram stating that she worked for 2196577 Ontario Inc. [74] Vaseekaran is listed as the issuer. He denied being the issuer.

He testified that the numbered company was set up byhimself and the accused and used the Progress Avenue address of the accused, albeit a different suite number than #205. [75] Agembaram told them that he obtained the R.O.E. from the accused. [76] Agembaram gave them the accused’s phone number for the T-4. [77] The R.O.E. lists the numbered company’s address of #205-855 Progress Avenue, which is the accused’s address though adifferent suite number. [78] The R.O.E. was sent by Service Canada to # 127, 1560 Brimley Road, an address which the accused has some connectionthough, again, not to the same suite number. [79] Neither Rukmini nor her husband had any direct involvement with the accused. [80] There is evidence from Wilson-Sangaya, Vaseekaran and Kandasamy that the accused sells fraudulent R.O.E.s. [81] Without the utterances of Agembaran to Rukmini implicating the accused, there is a body of circumstantial evidenceimplicating the accused in this fraudulent R.O.E., however it would not be enough to prove the accused’s guilt beyond a reasonabledoubt. [82] If those utterances are admissible, they, together with the rest of the evidence, do prove the accused’s guilt beyond areasonable doubt. [83] The evidence as to what Agembaram told Rukmini and her husband is hearsay.

It is presumptively inadmissible.However, it does fit within the co-conspirators exception to the hearsay rule. I am satisfied beyond a reasonable doubt that a conspiracyto sell fraudulent R.O.E.s existed. I am satisfied that Agembaram is a member of the conspiracy and that his statements to Rukmini andher husband were in furtherance of the conspiracy. I am also satisfied, on the basis of evidence directly admissible against the accused,that he is a member of that conspiracy.

That evidence is summarized in the circumstantial evidence just enumerated. [84] Even though the hearsay statement of Agembaram fits within the co-conspirator’s exception, and is presumptivelyadmissible, the Supreme Court of Canada has held some hearsay statements that so fit may nonetheless be inadmissible where the criteriaof necessity of reliability are not met. The onus is on the party seeking a finding that hearsay that would otherwise be admissible underthe co-conspirators exception be held inadmissible. [85] The decision in R. v.

Simpson, 2007 ONCA 793 , [2007] O.J. 4510 (C.A.), summarized the law on this issue. Simpson was charged with trafficking drugs to an undercover officer. The Crown alleged that Simpson was the supplier of the drugspurchased by an undercover police officer from a dealer. The dealer was also charged, but his charges were dealt with separately. Attrial, the Crown called the undercover officer who had purchased the drugs who testified that the dealer told the officer that the accusedwas the supplier. The Crown did not call the dealer as a witness.

The trial judge admitted the officer’s statement of what the dealer toldthe officer under the co-conspirator’s exception to the inadmissibility of hearsay. The issue became whether the statement was necessaryin accordance with the principled approach. The Court of Appeal reviewed the three rationales supporting the view that a statementadmissible under the co-conspirator’s exception is necessary and admissible: namely, the non-compellability of the declarant co-conspirator, the undesirability of trying co-conspirators separately and the evidentiary value of contemporaneous statements of co-conspirator.

In Simpson, the first two criteria did not exist though the third did. In the circumstances, the Court of Appeal held thatnecessity was not established and the statement ought not to have been admitted. [86] The same analysis applies here. The Crown has not established that the hearsay statement of Agembaram concerning theaccused was necessary.

It will not be admitted. [87] Therefore, absent those statements, the accused will be found not guilty of the charges in relation to Rukmini’s R.O.E. [88] Turning to the charges in relation to the R.O.E. given to Vaseekaran for the benefit of his wife Rathikala as contained in

Exhibit 3. [ 89 ] The employer on that R.O.E. was LIAINSON’s. [ 90 ] Wilson-Sangaya operated LIANSON’s. He was involved in the selling of fraudulent R.O.E.s. He testified that he provided that R.O.E. to the accused. He testified that he it was not his signature on the R.O.E. Vaseekaran also testified that that R.O.E. came from the accused. Their evidence corroborates each other. Yet both were dishonest in their conduct. Vaseekaran was dishonest in his evidence. I would not rely on their evidence absent significant credible and reliable corroboration.

Their evidence is to some extent corroborated by the other evidence implicating the accused as someone who sells fraudulent R.O.E.s. There is no documentary evidence in relation to this count. The absence of a credible documentary trail leaves me with a reasonable doubt that Rajagopal is guilty of the counts related to Vaseekaran’s spouse. He very likely guilty given his course of conduct, which is dishonest and criminal. But likely guilty, even very likely guilty is, is not proof beyond a reasonable doubt. [ 91 ] Accordingly, Rajagopal is found guilty of counts three and seven.

Released: July 10, 2013 Signed: “Justice Borenstein”