R. v. Shankar Date:, 2011 BCPC 229

Citation: R. v. Shankar Date: 20110902 2011 BCPC 0229 File No: 197481-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAI VINESH SHANKAR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: R. Fox Counsel for the Defendant: A. Robinson, D. Kontou Place of Hearing: Vancouver, B.C. Dates of Hearing: May 9 & 11, 2011 Date of Judgment: September 2, 2011 INTRODUCTION AND OVERVIEW [ 1 ] Mr.

Shankar is charged with two offences; namely, that: (1) on or about September 30, 2007, he uttered a forged document contrary to s. 368(1) of the Criminal Code , and (2) between May 23, 2007, and October 11, 2007, inclusive, he attempted to defraud the Insurance Corporation of British Columbia (“ICBC”) of monies in excess of $5000 contrary to s. 380(1 )(

a) of the Criminal Code . These charges arise from a claim Mr. Shankar made to ICBC following a rear-end collision on May 24, 2007. [ 2 ] Mr. Shankar, whose vehicle was rear-ended, pursued a claim with ICBC following the accident. Liability was not in issue. As part of the claim Mr. Shankar asked to be reimbursed for lost wages. ICBC asked him to provide certain information to verify his wage loss. ICBC eventually received a fax with a notice of assessment apparently issued by the Canada Revenue Agency (“the CRA”) for the 2006 tax year.

The 2006 Notice of Assessment (which I will refer to as the “2006 Notice”) was in the name of Jay Vinesh Shankar. The 2006 Notice was sent to ICBC from the fax of Your Mobile Accountant, an accounting business operated by Aeddy Leung. [ 3 ] During the course of its investigation ICBC determined that the 2006 Notice was a false document. The Crown’s theory is that Mr. Shankar provided the false 2006 Notice to Mr. Leung, the accountant, and caused it to be sent to ICBC. Further, the Crown’s theory is that Mr. Shankar intended ICBC to rely on the 2006 Notice. Additionally, it is the Crown’s position that Mr.

Shankar provided a number of false statements to ICBC during the claim process in an attempt to obtain wage loss payments from ICBC. [ 4 ] Mr. Shankar acknowledges that the 2006 Notice is false. However, he maintains the Crown has not established beyond a reasonable doubt that he had anything to do with the 2006 Notice or that he provided it to Mr. Leung. In other words, Mr. Shankar maintains the Crown has not proved that he uttered a forged document. The only Crown witness who provided direct evidence in this regard was Mr. Leung. Mr. Shankar submits a Vetrovec warning must be considered because Mr.

Leung is an unsavoury witness. Mr. Shankar further maintains he did not attempt to defraud ICBC; he was merely pursuing his claim for wage loss. He notes that Count 2, the attempt to defraud charge, is based on the Crown’s theory that he uttered a forged document. Accordingly, if Count 1, uttering a forged document, is not established then Count 2 also falls. BACKGROUND CIRCUMSTANCES

The ICBC claim [ 5 ] In the early evening of May 24, 2007, Mr. Shankar was driving his mother home from an appointment at Vancouver General Hospital. While Mr. Shankar was stopped to allow the car in front of him to make a left turn, his vehicle, a truck, was hit from behind and pushed into the car in front of him. The following day, May 25, Mr. Shankar went to an ICBC claim centre in Burnaby. He provided a statement about the collision to Ms. Sue Attwell , a claims adjuster. At that time he was not sure if the accident would affect his work. [ 6 ] Ms. Attwell testified that liability was not an issue because Mr.

Shankar had been rear-ended. From ICBC’s point of view, the only issue was the nature of any injuries and what benefits, if any, would flow from any injuries. Ms. Attwell said Mr. Shankar might be entitled to accident benefits and there may be an injury claim. If Mr. Shankar could not work he would be entitled to total temporary disability. Ms. Attwell noted there was also a possibility there could be a tort claim. Accordingly, Ms. Attwell said she needed to have information about the injury, what work he did, how much he earned and whether he was going to be losing any work because of any injury.

At that meeting Mr. Shankar told her he worked as a project coordinator for developers. This included travelling locally and around the world to obtain materials needed by the property developers. Conversations with ICBC employees [ 7 ] Ms. Attwell said that, during the course of her handling of the claim, Mr. Shankar telephoned her a number of times. She did not make notes every single time he called, instead, if he called a few times in one day, she made one note about the gist of the various conversations they had that day. [ 8 ] On June 14, 2007, Ms. Attwell had a telephone conversation with Mr. Shankar.

He told her he was having a lot of trouble with his shoulder. He asked her for money to get by. She told Mr. Shankar he needed to provide proof of income so she could calculate what he was entitled to. Ms. Attwell asked Mr. Shankar to provide income tax documents. Mr. Shankar told her he had not yet filed for that year or for the previous year. She asked Mr. Shankar to put something together to prove his income. [ 9 ] During the course of that discussion, Mr. Shankar told Ms. Attwell he did his income taxes himself. Some of his income was derived outside of Canada.

When he was paid outside of Canada he did not always declare that income. Further, he told her, in previous years he had only put down the bare minimum of what he earned. This was $20,000. Ms. Attwell told Mr. Shankar he needed to provide her with proof of income. She did not recall how he responded on that occasion. [ 10 ] On July 10, 2007, Mr. Shankar called Ms. Attwell again and again asked for money. Ms. Attwell told him she needed some kind of proof regarding his income. Mr. Shankar told her he was going to get a letter from an individual for whom he did contract work.

That letter would confirm he had been paid $87,000 for 2006. Ms. Attwell asked Mr. Shankar if he had cheque stubs. He told her money had been transferred directly to his account and sometimes he had been paid cash. Ms. Attwell again asked him about his income tax documents. He told her he had not filed for that year. He also told her he did not want to provide income tax records because he had only put down the very minimum as earnings. [ 11 ] On July 14, 2007, Ms. Attwell spoke again with Mr. Shankar. Mr. Shankar told her he had spoken to a lawyer, although not yet retained one.

He said he would provide a letter setting out what he was paid and with that ICBC should pay him. [ 12 ] On July 16, 2007, Mr. Shankar called Ms. Attwell . He was enquiring whether ICBC had received his doctor’s report. He also asked for money. He said he would drop off proof of income. Ms. Attwell said she received some receipts from Mr. Shankar as well as a letter dated July 16, 2007, on the letterhead of ASE Homes. That letter stated Mr. Shankar had been paid $87,500 in 2006. It was signed by Dave Nagra , president of ASE Homes. The letter stated Dave Nagra could be contacted for more information. [ 13 ] Ms.

Attwell said the letter itself was not sufficient. She needed to confirm that it was in fact a letter from ASE Homes. Consequently, she hired an independent adjuster to contact the company. She testified she was never able to confirm the authenticity of the letter from ASE Homes. [ 14 ] On July 20, 2007, Mr. Shankar called Ms. Attwell about his receipts. Mr. Shankar told Ms. Attwell that the independent adjuster had contacted ASE Homes but had not spoken to Mr. Nagra . Mr. Shankar suggested that ICBC send a letter to ASE Homes and request the information. [ 15 ] On August 2, 2007, Mr. Shankar called Ms.

Attwell again and asked for an update. Ms. Attwell explained that the independent adjuster had not been able to contact ASE Homes or Mr. Nagra . Mr. Shankar told her Mr. Nagra was on his yacht. Mr. Shankar suggested that Ms. Attwell should come up with an amount and pay him and the rest could be sorted out later. She told him she could not do that. Ms. Attwell suggested to Mr. Shankar that ASE Homes may have some payroll information. He said the company did not because he was on contract with them. She replied that the company must have something if they paid him $87,000.

He said the accountant for ASE Homes would have the information. He would have him send Ms. Attwell a letter. Ms. Attwell explained this would not be sufficient. Mr. Shankar said he would obtain a name and a number for her. Ms. Attwell said she never received that information. [ 16 ] On August 27, 2007, Mr. Shankar had an interview with Ms. Attwell and Mr. Gene Krecsy , a peace officer employed by ICBC in the Special Investigations Unit. In the course of that interview Mr.

Shankar provided the following information: • He had been involved in real estate for 25 years and worked as a project coordinator on various properties ranging from single family residential to multi-family. • He dealt with architects, engineers and others to get things done.

• He worked for two or three people who were investors with money. • He was part-owner of ACE Homes. (It took a number of questions to clarify that ACE was something different from ASE Homes). • His connection with ASE Homes was that he had a lot of projects with that company. The projects were associated with real estate. He managed about six homes for the owner of ASE Homes. • He was asked what he was going to give ICBC. He said they would be getting “my assessment of whatever income was given to you”.

He said he had given all the papers to the accountant and ICBC would get the assessment as to whatever income he had told them about. • Mr. Krecsy told him ICBC wanted to confirm his wages. Mr. Shankar said he was going to supply ICBC with even more than that. He said there was something else coming from Revenue Canada because he had worked with a man called Paul Atwell (who was also his partner on another project). • Mr. Krecsy asked him to clarify whether he was saying that now he had spoken to his accountant ICBC was going to be getting additional information. Mr.

Shankar said ICBC would get “the assessment” – “the income tax assessment”. Mr. Shankar made it clear he was not providing returns but his accountant was “getting it” rushed through the income tax. • When Mr. Krecsy suggested that Mr. Shankar would be “getting a whole bunch more documentation together for us”, Mr. Shankar said “No”, -- he was only going to provide ICBC with the income tax assessment. That was all. • Mr. Shankar said he thought his last three years’ income taxes had not yet been filed. [ 17 ] On September 26, 2007, Ms. Attwell saw Mr. Shankar when he went to the claim centre with his mother. Ms.

Attwell reminded him that Mr. Krecsy wanted to speak to Mr. Nagra . Mr. Shankar said he would be meeting with Mr. Nagra in India the following week. Because he was leaving for India he suggested ICBC settle his claim. He also said his accountant was preparing his last year’s taxes and Mr. Shankar would bring them in once they were completed. [ 18 ] On October 1, 2007, Mr. Shankar called Ms. Attwell to find out whether she had received a fax for his last year’s income tax from his accountant. She told him she had received a fax (dated 09-30-2007, 19:19 Your Mobile Account 604-507-5678).

She told him she had some questions for him. Ms. Attwell asked him about the total amount of income shown on the income tax documents (which was approximately $62,000) , because in a previous conversation he had told her that he had earned $87,000. Mr. Shankar said he had given a box of paperwork to his accountant and the accountant had done the taxes. He said he was leaving town that night and wanted to settle. Mr. Shankar would not say what amount he wanted. Ms. Attwell told him she needed more information and she still wanted to speak to Mr. Nagra . That was the last time Ms. Attwell dealt with Mr.

Shankar because his file was transferred to another claims adjuster after the October 1 st conversation. [ 19 ] Mr. Shankar’s file was transferred to Leah Hofseth . She had her first telephone conversation with Mr. Shankar on October 3, 2007. Mr. Shankar called to ask if she had assessed his claim. He was looking for an offer for pain and suffering and wage loss for 3 months. He did not say how much his wage loss was. He told Ms. Hofseth to rely on the income tax documentation he had provided to them. He suggested Ms. Hofseth should figure out the wage loss based on that.

He suggested it would be $5,000 per month. Ms. Hofseth told him the file had just been transferred to her and she had not reviewed it yet. [ 20 ] On October 5, 2007, Mr. Shankar again called Ms. Hofseth . He asked her for money. He wanted her to evaluate his claim based on the income tax information he had sent to ICBC. Ms. Hofseth told him she had seen the fax that had been sent to ICBC with the tax information but she had not reviewed it in detail. She also told him she wanted to speak to Mr. Nagra . Mr. Shankar told Ms. Hofseth that Mr. Nagra had no intention of speaking to ICBC about the letter. Mr.

Shankar questioned ICBC’s need to speak to Mr. Nagra and referred her to the income tax documentation. Ms. Hofseth said Mr. Shankar told her to rely on the income tax information she had on file in order to calculate his wage loss. Ms. Hofseth told him she needed more time to review the file. [ 21 ] On October 10, 2007, Ms. Hofseth and Mr. Krecsy met with Mr. Shankar for another interview. That interview included the following exchanges/comments: • Mr. Krecsy explained he was an investigator and a peace officer and had authority under the Criminal Code and provincial statutes to investigate criminal matters.

He explained the interview was about Mr. Shankar’s wage loss claim. • Mr. Krecsy told Mr. Shankar they had a nine page fax dated September 30, 2007, from Your Mobile Accountant. He explained there was a handwritten fax cover sheet, a notice of assessment and a 2006 T1 return. He asked Mr. Shankar if this looked familiar. After a pause (approximately 10 seconds during which time I could hear pages being turned) Mr. Shankar said, “Yes”. • Mr. Shankar was asked what exactly that documentation was. He replied it was income tax, whatever was filed, it was a

summary of his business and investment income. Mr. Shankar said the accountant had sent it to ICBC. • Mr. Shankar was asked whether “this” was what is commonly referred to as a notice of assessment, in his name, with the noted amount of monies taken. Mr. Shankar replied, “Right”. • He was asked to explain what had taken place. Mr. Shankar said he was not there when it was sent. He said “we” filed the income tax about two or three months ago. In using the word “we” he was referring to the accountant, Aeddy Leung. Mr.

Shankar said he had not filed income tax for two years so the accountant filed it for two years; namely, 2005, 2006. He said it was a regular filing. • Mr. Shankar said he had been in business for himself for the last 22 years. He said he was self-employed. • Mr. Shankar said he did not know what Mr. Krecsy was investigating. Mr. Krecsy told him he was investigating his wage loss. Mr.

Shankar said he had provided the paperwork: He added “let’s go to court and later we’ll figure it out in the court”. Mr. Krecsy told him they might end up in court but not the civil court he was referring to but in a criminal court. Mr. Shankar said he had no criminal record: “I have never done anything wrong. What’s – that’s the income that I make, even more than that, I have told you”. • Mr. Krecsy asked Mr. Shankar when he had filed his income tax. Mr. Shankar said he had filed it about three months ago. He did not know the date – the accountant had the paper work. He believed it was July or August.

He said he had given the paperwork to his accountant and the accountant filed it. He said he thought the accountant had sent him something to his home. He thought the accountant must have given him a copy of everything. However, he also said he had not received a copy of the fax and he had never seen this type of document before and he was not present when Aeddy Leung had sent the fax to ICBC. He said he did not even know the number it came from. • Mr. Shankar said he knew Mr. Leung’s office to be at Airport Square at Oak and 72 nd . He had known Mr. Leung for a while and he did the taxes. Mr.

Krecsy suggested he must have known the accountant for a couple of years if the accountant had done his taxes for a couple of years. Mr. Shankar said, “Yes, Mmhmm ”. [ 22 ] In cross-examination Ms. Attwell acknowledged there was no issue regarding Mr. Shankar’s injury or the fact that he was prevented from working. The only issue was determining how much money he had earned. She asked him to provide proof of loss of income and suggested that income tax documents could be submitted. She never told Mr.

Shankar that a notice of assessment was not enough or that she needed his tax returns. [ 23 ] In cross-examination Ms. Hofseth said the notes she made on file of conversations with Mr. Shankar were typed immediately after the conversations a majority of the time. She said there may been a delay between a call and making notes, but that was not standard. It was put to her that what she had in her notes was merely “the gist” of the conversation and not word-for-word. Ms. Hofseth said her notes were fairly accurate. If she did not type notes while she was on a call, she made handwritten notes. [ 24 ] Ms.

Hofseth was asked whether on October 3, 2007, she told Mr. Shankar she was aware income tax documents were on file. She responded it was Mr. Shankar who told her his income tax documents were on file. She also said that with claimants who are self- employed things are not always black and white so ICBC needs to verify income information provided, even if it is a CRA notice of assessment. Evidence of Mr. Aeddy Leung [ 25 ] Mr. Leung is an accountant and operates as “Your Mobile Accountant”. He has been in British Columbia since October 2000.

He testified that on September 27, 2007, in the morning, he received a call from Mr. Shankar who told him he needed some accounting work to be done. He met Mr. Shankar in the lobby of 1300 - 73 rd Avenue, Vancouver, where he was attending to a client. Mr. Leung believes he met Mr. Shankar the same day that he received the call. Mr. Leung said Mr. Shankar was referred by a friend of a client. He had never met Mr. Shankar before. He had not been engaged by Mr. Shankar before. Mr. Leung said Mr. Shankar asked him to prepare an income tax return (“to work backward”) to match the figures on a notice of assessment.

According to Mr. Leung, Mr. Shankar provided a photocopy of the 2006 Notice. The 2006 Notice had Mr. Shankar’s name on it. Mr. Shankar apparently told Mr. Leung he needed the income tax return to be completed for financing purposes. Mr. Leung said, since he had not done the work on the return that generated the 2006 Notice, he asked Mr. Shankar why he did not go to his own accountant. Mr. Shankar apparently said his previous accountant was out of the country and he was in a rush. Mr. Shankar offered Mr. Leung $200 cash to prepare the T1 income tax return. Mr. Leung accepted the payment. [ 26 ] Mr.

Leung said the 2006 Notice Mr. Shankar gave him was a photocopy. Normally the original of a notice of assessment is coloured. However, what he received from Mr. Shankar was already a photocopy. Mr. Shankar did not tell him where the original notice of assessment was or what had happened to it. Mr. Leung said Mr. Shankar told him he could not locate the original tax return, his accountant was out of the country, and therefore he asked Mr. Leung to work backwards. [ 27 ] Mr. Leung prepared an Income Tax and Benefit Return (T1 General) for 2006.

He said the normal process is that the taxpayer has various documents which are used to fill out the information on the T1 General return. In this case, Mr. Shankar only provided him with the 2006 Notice dated September 17, 2007. Mr. Shankar also showed him a tax return for the 2003 or 2004 tax year prepared by another accountant. That return showed his date of birth, SIN number and his address. [ 28 ] Mr. Leung said he prepared the T1 General return as requested by Mr. Shankar. He called Mr. Shankar either the same day or the next day to tell him it had been completed. Mr. Shankar called Mr.

Leung later and asked Mr. Leung to fax the 2006 T1 General return to ICBC. Mr. Shankar gave Mr. Leung the fax number for the ICBC claim centre, the claim number for Mr. Shankar’s claim and the name of the ICBC adjuster, Sue Attwell . Mr. Leung said he asked Mr. Shankar why he could not fax it himself and was told that Mr. Shankar’s fax was not working. He said Mr. Shankar asked him to send the fax on his behalf. Accordingly, on September 30, 2007, Mr. Leung faxed a handwritten cover page, the 2006 Notice dated September 17, 2007, and the T1 General return for 2006 to Ms. Attwell at ICBC. [ 29 ] Mr.

Leung said that was the only work he did for Mr. Shankar. He believed that after faxing the income tax documents to ICBC he may have received a call from Mr. Shankar to find out if the materials had been faxed. After that he sent the 2006 T1 General return to Mr. Shankar by regular mail. He said it was up to Mr. Shankar to file the return. [ 30 ] A few weeks later ICBC contacted Mr. Leung and told him they wanted to meet with him. Mr. Leung called Mr. Shankar and asked him what had happened and explained that ICBC wanted to meet with him. Mr. Leung said Mr.

Shankar told him to try to avoid or ignore ICBC. [ 31 ] In cross-examination the defence elicited the following points: • Mr. Leung told ICBC in an interview in October 2007 that he did not know Mr. Shankar before the first meeting with him in

September 2007. Additionally, in direct he said he had never met Mr. Shankar before the day he met him in the office lobby. Mr. Leung continued to insist during cross-examination that was the case. He did not know him. Mr. Shankar had been referred to him by one of his other clients. Mr. Leung eventually acknowledged that he had met Mr. Shankar with one of his clients, Mr. Singh, at a McDonald’s in April 2007. Mr. Leung said at the time he had done nothing with Mr. Shankar and had no relationship with him. He had no occasion to see or meet with Mr. Shankar independently.

He had just seen him as one of a group of people with one of his clients. • Mr. Leung acknowledged that before going to meet with ICBC he consulted with a lawyer. He didn’t know what would happen and he wanted to find out if he had to go to ICBC. • Mr. Leung admitted that Mr. Shankar paid him $200. When asked, he said he had not hesitated in telling ICBC what he was paid. He later admitted that in his statement to ICBC he was reluctant to disclose the amount he was paid. Mr. Leung also acknowledged he did not give Mr. Shankar a receipt. Additionally, Mr.

Leung did not declare that amount as income or pay tax on it. • Mr. Leung acknowledged he prepared the T1 General for 2006 based on the notice of assessment by working backwards. He agreed he made up figures for various entries on the T1 General. Sometimes the amounts he used did not coincide 100% with the information on the notice of assessment. Mr. Leung said he plugged in numbers as close as possible. • Mr. Leung told ICBC he had only been given a notice of assessment yet in evidence he said he had received a prior tax return from Mr. Shankar for 2003-2004 and he relied on that for Mr.

Shankar’s date of birth and for tax information. • Mr. Leung denied he had received a pile of receipts from Mr. Shankar that allowed him to come up with the figures on the 2006 T1 General return he created. • It was suggested to Mr. Leung that Mr. Shankar had not given him a notice of assessment but, instead, had given him receipts. Mr. Leung denied that was the case. • Mr. Leung acknowledged there was no need to file a T1 return because Mr. Shankar already had a notice of assessment for the 2006 tax year. • Mr. Leung said the CRA would not provide a taxpayer with a copy of a T1 return.

They would only provide a letter stating no taxes owing. • It was put to Mr. Leung that there was no reason for Mr. Shankar to file a T1 return if he had the notice of assessment as claimed by Mr. Leung. He was asked whether there was any reason for a T1 return. Mr. Leung said that would depend on the use one wanted to make of the tax documents. He said most banks want the T1 return with the notice of assessment. Evidence of Maurice Ma [ 32 ] Mr. Ma is a certified management accountant who has worked with the CRA since 1976. Since 1980 he has been an investigator with the CRA.

He testified that the 2006 Notice dated September 17, 2007, is a poor photocopy. He said it looked like two documents had been put together and photocopied. The first line on the 2006 Notice is not as it should be in a genuine notice issued by the CRA; it is not parallel. He said the font of the name and date would be different in a notice issued by the CRA. As well, the SIN number, the tax year and the tax centre name are also in different fonts than those used on a genuine notice of assessment issued by the CRA. Mr.

Ma noted, however, that the typed figures set out in the body of the 2006 Notice under “Summary” appeared to be from a genuine notice of assessment. [ 33 ] Mr. Ma conducted a search of the CRA income tax records for SIN No. --. This is the SIN number for Jay Vinesh Shankar. I note there is a difference in spelling of the first name (i.e. Jay instead of Jai). However, the date of birth and address are the same as that of the accused. He found there was no record of an individual with the name in the 2006 Notice and with that SIN number having filed a 2006 income tax return. [ 34 ] Mr.

Ma’s search of the business records of the CRA for the account of SIN No. -- showed the following: • For 1998 - 2004 tax returns were received and processed normally. • For 2006 – 2007 the CRA records showed the notation “cancel”. Mr. Ma said this indicates that something was received but cancelled. It means that it was not processed. A code number (No. 118) indicates that the information did not match the master file.

He said it could be anything but, most commonly, it is that the name on the return does not match the SIN number. • In particular , with respect to the 2006 tax year, the CRA records show that something was received at some point but it was cancelled November 13, 2007. The code number 118 indicates it was cancelled because information on the return did not match the master file. Mr. Ma could not say specifically what that may have been. However, what was certain was that the CRA did not process a tax return for 2006. [ 35 ] Mr. Ma testified that no notice of assessment was issued by the CRA for Mr.

Shankar in the 2005, 2006, 2007 or 2008 tax years. In particular, in relation to the 2006 tax year, Mr. Ma testified that the 2006 Notice entered as an exhibit in these proceedings was not issued by the CRA. The 2006 Notice is forgery as no such document was issued by the CRA. [ 36 ] Mr. Ma further testified that the CRA keeps records of refunds issued. The 2006 Notice dated September 17, 2007, shows a refund of $1,067.43. Mr. Ma said there was no record of such a refund being issued to Mr. Shankar. The only refunds issued to Mr.

Shankar were those shown on the CRA documents entered as exhibits, namely, for 1998 to 2004. Mr. Ma also testified there was no record that an income tax deduction of $13,159.75 (noted in the 2006 Notice) had ever been deducted and remitted to the CRA. Mr. Ma

said when an employer makes deductions for an employee they typically remit them monthly. The employer must issue a T4 to the employee as well as file a T4

summary with the CRA. Mr. Ma checked the CRA records using SIN No. -- to determine whether any employer had made any payment to Mr. Shankar in 2006. He said there was no record of any employer paying Mr. Shankar in 2006. [ 37 ] Mr. Ma testified that, if a taxpayer loses or misplaces his or her copy of the T1 General return for a given year, a photocopy of the T1 General return can be obtained from the CRA, if the taxpayer has filed the return. [ 38 ] Mr. Ma testified that the notice of assessment is a

summary of the return filed by a taxpayer. It is difficult to work backwards from that to create a T1 General return. He explained that a taxpayer’s total income can come from property income, business income, etc. If one wanted to breakdown total income by looking at a notice of assessment it would be practically impossible. In cross- examination, he said it would be very difficult for someone to breakdown total deductions. Evidence of Lionel Gene Krecsy [ 39 ] Mr. Krecsy is employed as a peace officer in the Special Investigations Unit of ICBC. He has been so employed for 11 years. Mr.

Shankar’s file was referred to him for investigation regarding the wage loss issue. [ 40 ] Mr. Krecsy first met with Mr. Shankar on August 27, 2007. A

summary of that interview is set out in another part of these reasons. Sue Attwell was present at that meeting which occurred at ICBC’s Burnaby claim centre. Mr. Krecsy acknowledged that during the meeting he referred to an ASE Homes’ letter. The letter is the one entered as an exhibit in this trial. That letter was the document he referred to during the interview. It was on the table in the interview room. Mr. Krecsy could not recall whether Mr. Shankar looked at the letter. He thought he would have but he could not recall. At one point during the interview Mr. Shankar referred to “the address up there”. Mr.

Krecsy was asked what Mr. Shankar was referring to. He replied that Mr. Shankar was referring to the letter from ASE Homes. [ 41 ] Mr. Krecsy met with Mr. Shankar again on October 10, 2007. A

summary of the October interview is set out in another part of these reasons. Ms. Hofseth was also present at that interview at the Burnaby claim centre. The audio tape of the interview, as well as the transcript, indicate that at one point Mr. Krecsy referred to a 9-page fax dated September 30, 2007, received from “Your Mobile Accountant, phone number 604-507-5678”. Mr. Krecsy asked Mr. Shankar, “Does that look familiar to you, Jai?” There was a pause of approximately 10 seconds during which I could hear pages being turned. After the pause Mr. Shankar replied, “Yes”. Mr. Krecsy asked Mr.

Shankar, “And what is that? What exactly is that documentation to you?” Mr. Shankar answered, “It was income tax, whatever was filed,

summary of my business and investment income.” [ 42 ] Mr. Krecsy testified that during the pause in the interview, which is evident on the audio tape, he would have handed the income tax document faxed by the accountant to ICBC. Mr. Shankar examined the pages of the document. A short time after the pause Mr. Krecsy directed Mr. Shankar’s attention to the notice of assessment in his name with “the noted amount of monies taken”. Mr. Shankar replied: “Right”. [ 43 ] At another point during the interview Mr. Shankar told Mr. Krecsy , “I have never done anything wrong.

What --- that’s the income I make, even more than that, I have told you.” Mr. Krecsy was asked what Mr. Shankar was referring to. Mr. Krecsy said Mr. Shankar was referring to the document he had presented to him. He could not recall Mr. Shankar gesturing to the document but the context of the conversation was such that Mr. Shankar was referring to the document they had just gone over. [ 44 ] In cross-examination Mr. Krecsy was asked about the point in the interview of October 10 th covered in direct and whether there was a gesture. Mr. Krecsy said he could not recall a gesture. However, he said Mr.

Shankar was referring to the documents they had just reviewed. Mr. Krecsy said he did not recall if Mr. Shankar pointed to the documents or if it was his body language. He did not recall the specific nature of the gesture. [ 45 ] Mr. Krecsy was also asked about the pause in the interview when he had asked Mr. Shankar if the 2006 Notice and 2006 T1 General Return looked familiar. He acknowledged that in direct he said he “would have” handed the income tax documents to Mr. Shankar to review. He said it was possible the documents were in his own hands. Mr.

Krecsy said he did not recall if the documents were in his own hands or in Mr. Shankar’s hands, but if he was showing them to Mr. Shankar, they were in Mr. Shankar’s view for review. Mr. Krecsy agreed with defence counsel’s suggestion that the documents could have been flat on the table with him turning the documents toward Mr. Shankar. POSITION OF THE PARTIES Defence Position [ 46 ] Mr. Shankar acknowledges that the 2006 Notice faxed to ICBC from Mr. Leung was not a genuine notice of assessment. However, Mr. Shankar argues it has not been proven beyond a reasonable doubt that Mr.

Shankar had anything to do with the 2006 Notice. First, Mr. Shankar argues the only evidence linking him to the 2006 Notice came from Mr. Leung. Mr. Shankar maintains that Mr. Leung is an unsavoury witness and is not trustworthy. Mr. Shankar asserts that Mr. Leung is a liar and there is no evidence to corroborate Mr. Leung’s assertion that the 2006 Notice was provided to him by Mr. Shankar. [ 47 ] The defence notes that Mr. Leung’s credibility is suspect for the following reasons: a. When he was asked to attend at ICBC he was nervous and he did not want to go. In fact, he sought the advice of a lawyer before

seeing ICBC. b . Mr. Leung testified that everything he told ICBC in his statements was true yet, according to Mr. Shankar, there were a number of aspects of his evidence, (which will not be repeated here) which were inconsistent and which did not coincide with other evidence Mr. Leung had given or statements he had made. c . Mr. Leung was paid cash but he did not claim the payment on his income tax. This indicates he is dishonest. d . Mr. Leung fabricated documents in relation to Mr. Shankar’s tax return though he was not asked to do so.

In particular, he made up amounts for specific items such as advertising, motor vehicle expenses, legal expenses, rent, telephone and utilities. No information in this regard was provided to him by Mr. Shankar. Mr. Shankar argues that an accountant completing official government forms who is willing to make stuff up is clearly unsavoury and not credible. e . Mr. Leung’s evidence did not make sense. According to Mr. Shankar any accountant of his stature would know that working backwards cannot be done. In fact this was confirmed by Mr. Ma who works for the CRA. f. When Mr.

Leung faxed the information to ICBC, he did not place any caveat on his communication to indicate that the T1 General for 2006 had not accompanied the assessment. g. There was no explanation why Mr. Shankar needed a T1 General for 2006 when he allegedly had a notice of assessment. h. Though Mr. Leung maintained he had no concerns about the legitimacy of the 2006 Notice, he commented it was up to Mr. Shankar to do whatever he wished with the return. Mr. Shankar argues, if the assessment was based on a filed return, why would there be a need to file again. Mr.

Shankar argues the inference to be drawn from this evidence and other evidence is that Mr. Leung knew that the 2006 Notice was not legitimate. [ 48 ] Separate and apart from the issue of Mr. Leung’s credibility, Mr. Shankar submits the evidence does not support that he knew the 2006 Notice, faxed by Mr. Leung, was false. The Crown’s theory is, in part, that he lied to ICBC; Mr. Shankar argues that has not been established. Mr. Ma’s evidence was that something was filed but it had not been accepted. It was shown as “cancel” for some reason Mr. Ma could not explain. There was also evidence from Ms. Attwell that Mr.

Shankar told her he had given boxes of paperwork to his accountant. Mr. Shankar argues that the Crown’s own evidence indicates he provided paperwork to his accountant in order to provide ICBC with a document regarding wages he had earned. Mr. Shankar also notes that on the 2006 Notice his name is spelled “Jay” whereas on the statement to ICBC and on his driver’s licence his name is spelled “Jai”. If he had falsified the 2006 Notice, as alleged by the Crown, why he would spell his own name wrong. Mr.

Shankar asserts the incorrect spelling of his own name is more consistent with the 2006 Notice being prepared by Mr. Leung. Mr. Shankar maintains that the documents from the CRA obtained by Mr. Ma show a filing was made in 2005 and 2006. He argues that the timeline is consistent with his statement to ICBC. [ 49 ] Mr. Shankar maintains there is no evidence to prove, beyond a reasonable doubt, that he provided the false 2006 Notice to Mr. Leung. Mr. Shankar also maintains that the Crown’s reliance on statements made in his October 2007 interview with ICBC is not confirmation that he identified the 2006 Notice. Mr.

Shankar argues there is no evidence about what Mr. Krecsy did with the 2006 Notice when he was interviewing Mr. Shankar. Mr. Shankar acknowledges there was a pause, but he argues the pause was brief. There is no way of saying how long he looked at the document. Moreover, Mr. Shankar argues, the fact he said “yes” when he was asked if he was familiar with the document is not an admission he had seen the document before. Mr. Shankar argues it is possible he was saying the return was familiar as opposed to the 2006 Notice. He argues that his answer to Mr. Krecsy is not conclusive.

Crown’s Position [ 50 ] The Crown argues that the evidence clearly establishes that the 2006 Notice is a forged document. The Crown argues that the evidence of Mr. Leung regarding the 2006 Notice should be accepted. The Crown points out that Mr. Leung was extensively cross- examined on the T1 General return he had created. However, according to the Crown, he was not challenged on the fact that it was Mr. Shankar who provided him with the 2006 Notice. The Crown argues that this establishes Mr. Shankar dealt with a forged document. Moreover, the Crown submits there is ample evidence through the testimony of Ms.

Attwell , Ms. Hofseth , and Mr. Krecsy to establish the other elements of the offence of uttering a forged document and fraud. [ 51 ] The Crown acknowledges the defence challenged Mr. Leung’s credibility but argues that not every witness whose reliability is questioned becomes an unsavoury witness. The Crown alleges there are facts that can be found by the court which corroborate Mr. Leung’s testimony. The Crown also argues that the timeline of events demonstrates a degree of coordination between Mr. Leung and Mr. Shankar that supports Mr. Leung’s evidence. Moreover, the Crown argues, even if Mr.

Leung’s evidence is not accepted, there is

other evidence to establish that Mr. Shankar adopted the notice of assessment. In particular, the Crown refers to statements Mr. Shankar made to Mr. Krecsy in the interview of October 10th. In

summary, the Crown says it has proven all elements of the offence of uttering aforged document. Once that is accepted, it has also proved the charge of attempting to defraud ICBC. APPLICABLE LAW Uttering a forged document [52] Mr. Shankar is charged under s. 368(1) of the Criminal Code. That

section provides as follows: 368.

(1) Everyone who, knowing that a document is forged, (

a) uses, deals with or acts upon it, (

b) causes or attempts to cause any person to use, deal with or act upon it, as if the document were genuine; ..... is guilty of either an indictable offence or an offence punishable on

summary conviction. [53] The accused can only be convicted under s. 368(1)(

a) if the Crown proves he actually issued, dealt with, or acted upon a forgeddocument. In this case, this would require proof that Mr. Shankar dealt or acted upon a forged document as if it was genuine. TheCrown would also have to prove that Mr. Shankar knew the document was forged. [54] Under s. 368(1)(

b) the accused may be found guilty if it is proved that he caused or attempted to cause another person to use, dealwith or act upon a forged document. Under this subsection the Crown must also prove that the accused knew the document was forged. However, the Crown need not prove any actual use or dealing with the document by the accused. Instead, the Crown simply needs toprove the accused caused or attempted to cause another person to use, deal with or act upon a forged document. Unsavoury witness and Vetrovec warning [55] The defence raised concerns about the character and evidence of Mr. Leung.

Accordingly, I will consider whether his evidencerequires special scrutiny. [56] The approach to the testimony of witnesses who are considered unsavoury is set out in R. v. Vetrovec, (SCC),[1982] 1 S.C.R. 811. In that case, the unsavoury witness was an accomplice. In R. v. Dunbar, [2010] O.J. No. 5971, Ferguson J. of theOntario Superior Court of Justice set out a succinct

summary of the factors to consider when counsel requests a Vetrovec warning begiven in relation to a witness: 1. The Vetrovec warning is designed to alert the trier of fact to the need for special attention when assessing the credibility of certainunsavoury witnesses. 2. It is a clear and sharp warning to alert the trier of fact to the risk of adopting, without more, the evidence of an unsavoury witness 3.

The warning assigns unsavoury witnesses a special status, namely, it sets them apart from other witnesses and encourages anassessment of their credibility bearing in mind the unique reliability concerns they bring to a trial. 4. The purpose of the Vetrovec warning is to alert the trier of fact that there is a special need for caution in approaching the evidenceof certain witnesses whose evidence plays an important role in the proof of the accused’s guilt. 5. There are four stages that ought to be considered when approaching the testimony of a potentially unsavoury witness, namely: (

a) the evidence of certain witnesses is identified as requiring special scrutiny; (

b) the characteristics of the witness that bring his or her evidence into serious question are identified; (

c) the trier of fact is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; (

d) the trier of fact is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of thewitness with respect to whom the warning has been given. 6. There are no hard and fast rules in determining whether a witness is deserving of a Vetrovec warning. However, as the importanceof the witness to central issues at trial increases, and the credibility concerns rise, so does the need for a caution. [57] In R. v. Khela, 2009 SCC 4, and the companion case R. v. Smith, 2009 SCC 5, the Supreme Court of Canada considered theissue of the sufficiency of a Vetrovec warning.

In doing so it again considered the issue of corroboration. The court noted (at para. 31 ofKhela) that Vetrovec changed the law in relation to unsavoury witness warnings in two important ways, namely: (

a) judges wererelieved of attempting to pigeon-hole witnesses as accomplices; instead they were directed to consider all the factors that might impair awitness’ credibility and decide on that basis whether a special instruction is necessary; (

b) triers of fact need not apply the technicaldefinition of corroboration; instead they must simply determine whether the evidence properly weighed overcomes its suspicious roots.

[ 58 ] The court went on to note, however, that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that provides comfort that the witness is telling the truth (at para . 39 of Khela ). The court also confirmed that in order for evidence to be considered confirmatory it does not have to directly implicate the accused. Individual items of confirmatory evidence need not implicate the accused.

However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the trier of fact that the impugned witness can be trusted in his or her assertion that the accused is the person who committed the offence. ANALYSIS [ 59 ] In this case, the Crown relies on the testimony of Mr. Leung, an accountant, to establish, among other things, that Mr. Shankar was the person who provided Mr. Leung with the 2006 Notice, asked him to prepare a T1 return, and instructed him to send those documents to ICBC on his behalf.

Additionally, the Crown asks the court to reach certain conclusions about Mr. Shankar’s knowledge and his reliance on the 2006 Notice from discussions and interviews he had with ICBC employees. I will first address the evidence of Mr. Leung. Credibility/Reliability of Aeddy Leung [ 60 ] The testimony of Mr. Leung requires special scrutiny because his honesty, based on his own evidence, has been called into question. During his testimony Mr. Leung candidly admitted that the information contained in the 2006 T1 General return was made up by him. While testifying, Mr.

Leung was not a particularly careful witness and there were several inconsistencies in his evidence. Some of the inconsistencies related to his own testimony; for example, in direct he told the Crown that he had never met Mr. Shankar before the day he met him in the lobby of 1300 – 73 rd Avenue, Vancouver. Yet, in cross-examination he eventually acknowledged he had met Mr. Shankar before with one of his clients at a McDonald’s restaurant in April 2007. Another inconsistency related to a statement he gave to the ICBC investigators. In direct Mr. Leung said he had received a notice of assessment from Mr.

Shankar and a T1 for 2003- 2004 that had been prepared by his previous accountant. However, when he was interviewed by ICBC on October 26, 2007, he was specifically asked by Ms. Hofseth whether Mr. Shankar had given him any other documents, other than the notice of assessment. At that time he said, “No”. He confirmed that all he had received from Mr. Shankar was one page. [ 61 ] In addition, there are other aspects of Mr. Leung’s testimony that must be considered in assessing his credibility. Mr. Leung admitted he was paid cash for the work he did for Mr. Shankar, yet he did not claim it on his income tax.

As well, as noted above, he essentially fabricated information in order to complete the T1 General return relating to Mr. Shankar’s 2006 taxes. The significance of this is that preparing the T1 General return required Mr. Leung to make up not one or two items but a whole host of items including motor vehicle expenses, legal expenses, advertising and so on. [ 62 ] In my

summary of the law regarding Vetrovec warnings, I noted that the approach suggested in Vetrovec relieves judges from attempting to pigeon-hole witnesses as accomplices. Instead, judges are directed to consider all of the factors that might impair the credibility of a witness and to decide, on that basis, whether a special instruction/caution is necessary. In the circumstances of this case, I have concluded that I ought to instruct myself about the risk of accepting Mr. Leung’s testimony given the importance his evidence plays in determining whether Mr.

Shankar is guilty as charged. [ 63 ] I have not totally discounted Mr. Leung’s testimony because some of his evidence, properly weighed in the context of the evidence as a whole, overcomes its suspicious roots. In particular I accept his evidence in respect to the following: • Mr. Shankar called him; • Mr. Shankar paid him $200; • Mr. Leung prepared a T1 General return; • He made up the bulk of the information contained in that return; • The call from Mr. Shankar and the completion of the T1 occurred on or about September 27 and 28, 2007; • Mr. Shankar asked Mr. Leung to fax the information to ICBC.

It is clear that Mr. Leung obtained the information contained on the handwritten fax cover, namely, the fax number of ICBC, the claim number and the name of the claims adjuster from Mr. Shankar. Additionally, Mr. Shankar’s call to ICBC on October 1st asking about the fax indicates that he was aware it was being sent. • The fax was sent to ICBC on September 30, 2007 at approximately 19:20 from Mr. Leung’s fax machine. [ 64 ] The more difficult issue is whether I should accept Mr. Leung’s evidence that Mr. Shankar gave him the 2006 Notice and asked him to work backwards.

On the one hand, it is difficult to see what Mr. Leung could have gained or what motive he could have had for creating a false notice of assessment and a false T1 General return without input or instructions from Mr. Shankar. On the other hand, my assessment of Mr. Leung’s credibility and reliability in light of his own dishonest conduct in this matter, leads me to conclude that it is dangerous to act on his evidence about the 2006 Notice. His evidence about the nature of his discussions with Mr.

Shankar and what he was told to do with the 2006 Notice and/or the provenance of the 2006 Notice cannot be confirmed by independent evidence. I appreciate that I am entitled to act on his unconfirmed evidence but, in the circumstances, I have chosen to err on the side of caution and disregard that evidence. Has the Crown proved Mr. Shankar uttered a forged document?

[ 65 ] My rejection of Mr. Leung’s evidence about the provenance of the 2006 Notice and discussions he may have had with Mr. Shankar is not the end of the matter because there is other evidence to consider in deciding whether Mr. Shankar uttered a forged document. I will consider that other evidence in relation to the four essential elements which the Crown must prove on the uttering charge, namely: 1. whether the notice of assessment was forged; 2. whether Mr. Shankar knew the notice of assessment was forged; 3. whether Mr. Shankar dealt with the notice of assessment; 4. whether Mr.

Shankar represented the notice of assessment as genuine. [ 66 ] I will first consider whether the document was forged. This essential element is not in dispute. The defence acknowledged that the 2006 Notice was a forgery. Additionally, Mr. Ma, the CRA investigator, testified that the 2006 Notice was forged. I accept his evidence on this point. [ 67 ] I will next address whether Mr. Shankar knew that the 2006 Notice was forged. Since I disregarded Mr. Leung’s evidence regarding the 2006 Notice, there is no direct evidence that Mr. Shankar gave the 2006 Notice to Mr. Leung or that he knew it was forged.

Accordingly, I must consider whether there is other evidence led by the Crown which establishes that Mr. Shankar either knew the 2006 Notice was forged or was wilfully blind as to the true nature of the 2006 Notice. [ 68 ] Mr. Shankar, according to information he himself provided to ICBC, is a self-employed business man who has run his own businesses for 22 years and managed the business affairs of others. By his own admission to ICBC, he prepared his own taxes in the past and in doing so failed to report his full income. [ 69 ] He obviously had some knowledge about the process of filing income tax returns.

In particular, his comments during the August 27, 2007, interview make it clear that he knew what an income tax assessment was and that he intended to rely only an income tax assessment to prove his wage loss. Based on information Mr. Shankar provided to ICBC adjusters, it is clear that as of September 26, 2007, he believed his income tax for 2006 had not been filed: (

a) June 14, 2007 – He told the adjuster he had not filed taxes for 2006 or the previous year. (

b) July 10, 2007 – He told the adjuster he had not filed income taxes for 2006. (

c) August 27, 2007 – Mr. Shankar told Mr. Krecsy he would provide ICBC with his income tax assessment but not his tax returns. He also told Mr. Krecsy he had given all his papers to the accountant. He also said he thought taxes for the last three years had not been filed yet. (

d) September 26, 2007 – He told the adjuster his accountant was preparing last year’s (2006) taxes and Mr. Shankar would bring them in once they were completed. [ 70 ] The significance of these statements made by Mr. Shankar to ICBC is twofold. First, he was going to rely on his income tax assessment to establish wage loss. Second, as of September 26, 2007, he knew his 2006 taxes had not been completed yet. He told the adjuster his accountant was preparing last year’s taxes and Mr. Shankar would bring them in once they were completed. [ 71 ] Mr.

Shankar’s next contact with ICBC was five days later on October 1, 2007, when he called to find out whether Ms. Attwell had received a fax from his accountant. This inquiry clearly shows Mr. Shankar knew that Mr. Leung had sent his tax information to ICBC. During the October 1 st telephone discussion, Ms. Attwell specifically asked Mr. Shankar about the $62,000 shown as income on the documents faxed by Mr. Leung. He did not give a direct answer to the question but said he had given his paperwork to the accountant who had done his taxes.

There is no direct evidence before the Court as to why this figure was apparently accepted by Mr. Shankar or why there was such a discrepancy between the amount of earnings Mr. Shankar initially claimed ($87,000) and the earnings he eventually apparently accepted as accurate ($62,000). [ 72 ] The significance of this discussion is that Mr. Shankar was told the amount of income attributed to him in his income tax documents. He may have had a copy of the faxed documents because he later told Mr. Krecsy he thought his accountant had sent something to his home.

However, even if he had no other information, at the very least he knew his income was shown on the income tax documents as being $62,000. The evidence clearly establishes this income amount, as it relates to Mr. Shankar, was made up. The T1 General was made up by Mr. Leung to reflect the figures in the 2006 Notice and the 2006 Notice itself was a forgery. [ 73 ] I next turn to the October 10, 2007, interview when the 2006 Notice and the T1 General were shown to Mr. Shankar. It is Mr. Shankar’s submission that the Crown’s reliance on statements made in the interview of October 10 th is misplaced.

It is his position that the statements he made during that interview are not conclusive and do not constitute admissions he had seen the income tax documents. [ 74 ] In that interview Mr. Shankar confirmed that his initial statement to ICBC about wage loss calculations was based on approximately $87,000 he was paid by Mr. Nagra in 2006. The investigator, Mr. Krecsy , referred him to a document, namely, a 9-page fax dated September 30, 2007. It is clear that Mr. Krecsy pointed out to Mr. Shankar the time it was received and that it came from “Your Mobile Accountant”.

The investigator also pointed out there was a handwritten cover page, a notice of assessment and a 2006 T1 return. He asked Mr. Shankar whether that looked familiar. After a pause of approximately 10 seconds, Mr. Shankar replied, “Yes”. The investigator asked Mr. Shankar what the documents were. Mr. Shankar said that it was “income tax, whatever was filed;

summary of my business and investment income”. Mr. Shankar confirmed it was sent to ICBC by his accountant. The significance of this is that Mr. Shankar acknowledged these were documents sent to ICBC by his accountant and that he knew they dealt with his income.

[75] Mr. Shankar argues that the pause in the interview was not long enough for him to look at the documents. I find he did look atthe faxed documents. Further, those documents were specifically brought to his attention by Mr. Krecsy. Mr. Krecsy specificallyreferred Mr. Shankar to the 2006 Notice in Mr. Shankar’s name with the noted amount of monies taken. Mr. Shankar answered,“Right”. When Mr. Shankar was asked to explain what had occurred, he told the investigator that “we” filed income tax about twomonths ago. He clarified that when he used the word “we” he was referring to his accountant Aeddy Leung. Mr.

Shankar explained hehad not filed for two years and his accountant filed income tax for two years, namely, for 2005 and 2006. Later in the interview, whenhe was asked whether he had received a faxed copy of “this”, Mr. Shankar claimed that he had never seen this type of document before. This is contrary of what he had said earlier in the interview, namely, that he thought the accountant had sent something to his home andthat his accountant must have given him a copy of everything. His attempt to resile from his earlier statements is telling. [76] Mr.

Krecsy also testified that during the October 10th interview: he handed the documents to Mr. Shankar or placed them on theinterview table so that they faced Mr. Shankar. Mr. Shankar examined the documents. He also testified that at another point in theinterview Mr. Shankar referred to the income he made. Mr. Krecsy said, at that point, Mr. Shankar was referring to the documentspresented to him during the interview. Mr. Krecsy could not recall Mr. Shankar gesturing at the document but the context of theconversation was such that Mr. Shankar was referring to the documents they had just gone over. Mr.

Krecsy said he could not recall ifMr. Shankar had made a gesture towards the documents or if it was his body language. However, Mr. Krecsy said Mr. Shankar wasreferring to the documents they had just reviewed, namely, the documents faxed by the accountant. [77] After reviewing the audio tape and the transcript of the October 10th interview, as well as Mr. Krecsy’s evidence, I find that Mr.Shankar had sufficient opportunity to look at the 2006 Notice and the T1 General documents and understood what they were.

He was anexperienced business man who had prepared his own income taxes in the past thus the documents would not have been difficult tounderstand. I accept Mr. Krecsy’s evidence that he brought the documents to Mr. Shankar’s attention and that Mr. Shankar looked atthem. I find Mr. Shankar acknowledged the documents sent to ICBC by his accountant. I find that in doing so, without making anycomment on the contents, he adopted them. The significance of Mr.

Shankar looking at the documents is that he would have easily seensome information in those documents which made it obvious they were not genuine; for example: • his first name was apparently spelled wrong; • there was total income tax deducted $13,159.75; • a refund of $1,067.43 had been issued to him. Mr. Ma’s evidence, which I accept, established there was no record in the CRA documents that a total income tax deduction of$13,159.75 had ever been deducted and remitted to the CRA in relation to Mr. Shankar. Further, there was no record of any employerpaying Mr. Shankar in 2006.

Additionally, there was no record of a refund of $1,067.43 being issued to Mr. Shankar. Even on a cursoryreview of the 2006 Notice, one or more of these items should have raised alarm bells for Mr. Shankar about the authenticity of the 2006Notice. [78] Furthermore, a cursory review of the T1 General return should also have raised concerns about the accuracy and reliability of theT1 return that had been faxed to ICBC. For example, on page 2 of the T1 return there is reference to employment income as per T4slips. The evidence establishes Mr. Leung made this up.

The evidence also establishes there were no T4 deductions recorded for Mr.Shankar for that year. Further, Mr. Shankar said he was self-employed and worked on a contract basis. Accordingly, that figure shouldhave been questioned by Mr. Shankar. The evidence also establishes that on page 3 of the T1 return Mr. Leung made up a figure forannual union or professional dues. Even on a cursory examination, this is another entry which should have raised questions for Mr.Shankar. Last, but not least, during the interview Mr. Shankar said his income tax had been filed by Mr. Leung two or three monthspreviously.

However, the date on the bottom of page 4 of the T1 under the signature line was “28-09-07”. That date, which on theevidence can only be read as 28 September 2007, should also have raised concerns. That date appears to indicate the T1 return for 2006was completed after the date that the 2006 Notice was issued. [79] On reviewing the whole of the evidence, I am satisfied beyond a reasonable doubt that the only reasonable inference to be drawnfrom the proven facts is that Mr. Shankar knew that the 2006 Notice was a forged document. Moreover, I find that Mr.

Shankar’sattention was drawn to the income amount of $62,000 and the discrepancy between that amount and his initial statement regarding his income. That fact plus Mr. Shankar’s review of the documents and his comments at the October 10th interview establishes, at aminimum, that Mr. Shankar was willfully blind to the true nature of the 2006 Notice, namely, that it was a forged document. Thedoctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need forfurther inquiries, but deliberately chooses not to make those inquiries.

A finding of willful blindness involves an affirmative answer tothe question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? (see: R.v. Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411). [80] Trial judges are not expected to leave their common sense at the door when they enter the courtroom: see, R. v. Twohey, [2009]B.C.J. No. 2218. In dealing with the issue of the drawing of inferences Chief Justice McEachern noted in R. v.

To (1992), (BC CA), 16 B.C.A.C. 223: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. In this case, I find Mr. Shankar had sufficient information before him on October 10th that he needed to make further inquiries about thedocuments Mr. Leung faxed to ICBC.

However, I find he deliberately failed to do so. [81] The next element I will consider is whether Mr. Shankar dealt with the forged 2006 Notice. As noted, I have not accepted Mr.Leung’s evidence about the provenance of the 2006 Notice. Hence, there is no direct evidence that can establish Mr. Shankar directlyused or acted on the document. However, there is evidence that Mr. Shankar attempted to get ICBC to use or act on the document.

[ 82 ] On August 27, 2007, Mr. Shankar was interviewed by Mr. Krecsy in the presence of Ms. Attwell . During that interview Mr. Krecsy told Mr. Shankar he was trying to clarify what Mr. Shankar had given to ICBC up to that point. Mr. Shankar replied: A. Well, I mean the guy that I worked for, the guy who’s paying, I mean you’ll get my assessment of whatever income was given to you. Q. Well, that’s basically what we’re going to be needing . A. Right. Don’t worry about it. You’ll get the assessment. I’ve given all the papers to the lawyer – I mean the accountant.

You’ll get the assessment as of whatever income I told you, so that’s fine, you know. Later in the interview Mr. Krecsy tried to clarify what it was that Mr. Shankar would be providing to ICBC. Mr. Shankar told him ICBC would get the assessment. He specifically indicated that it would be the income tax assessment. He also made it clear he was not talking about income tax returns. He said his accountant “is getting it rushed out through the income tax”. Later still Mr. Krecsy made reference to his understanding that Mr. Shankar was in the process of getting a whole bunch more paperwork together for ICBC. Mr.

Shankar responded: “No, no, no, no . I’ll provide you with the income tax assessment. That’s all I am going to provide you.” Mr. Krecsy told Mr. Shankar that the adjuster was not going to be able to assess the claim unless ICBC had proper documentation. Mr. Shankar said that he understood. Mr. Krecsy told him “we need a little bit more than that.” [ 83 ] In my view, the significance of the exchanges between Mr. Shankar and Mr. Krecsy , summarized above, is that as of August 27, 2007, Mr. Shankar was planning to provide an income tax notice of assessment to establish his income for ICBC wage loss purposes.

By his own earlier admissions to ICBC he had not filed income tax for the 2006 tax year. In fact, when he spoke to Ms. Attwell on July 10, 2007, he told her he had not filed for that year and he did not want to provide his income tax records because he had only claimed minimum earnings. Further, in the interview of August 27, 2007, Mr. Shankar told Mr. Krecsy “I think my last three years has not been filed yet.” On September 26, 2007, Mr. Shankar told Ms. Attwell that his accountant was preparing his taxes and that he would bring it in once they were completed. Again, by Mr.

Shankar’s own admission as of September 26, 2007, his taxes had not been filed. [ 84 ] There is other evidence, from Ms. Attwell and Ms. Hofseth , which indicates Mr. Shankar relied on the documents faxed from Mr. Leung, which included the 2006 Notice, for the purpose of establishing his wage loss. He specifically told Ms. Hofseth several times that she should rely on the income tax documentation he had provided to ICBC. He specifically told Ms. Hofseth he wanted her to evaluate his claim based on the income tax information his accountant had sent.

Moreover, at the October 10 th interview after having been presented with the documents faxed by Mr. Leung, he stated, referring to those documents, that was the income he made. [ 85 ] Last but not least, I will address whether Mr. Shankar represented the 2006 Notice as genuine. For the reasons set out above, I find that both before and at the October 10, 2007, interview, Mr. Shankar represented the tax documents sent to ICBC by Mr. Leung as genuine documents ICBC should rely on to calculate his wage loss. Accordingly, I find that the evidence establishes Mr. Shankar uttered a forged document.

Has the Crown proven Mr. Shankar attempted to defraud ICBC of monies in excess of $5,000? [ 86 ] I am satisfied, based on the evidence I have accepted, that Mr. Shankar attempted to defraud ICBC by asking ICBC to rely on a document, namely, the 2006 Notice which he knew or ought to have known was a forged document. At a minimum, Mr. Shankar failed to discuss important material facts regarding the documents he asked ICBC to rely on to calculate his wage loss. As noted in the analysis on the uttering charge, Mr.

Shankar knew the 2006 Notice was forged and, at a minimum, was wilfully blind to the true nature of the 2006 Notice. He failed to alert ICBC to the fact that information on the 2006 Notice and on the T1 return was not correct and could not possibly apply to him. For example, there was no record that total income tax of $13,159.75 had been deducted from monies earned by him; there was no record that a refund of $1,067.43 had been issued to him; and further, other information in the T1 General return was not accurate. Accordingly, I find the Crown has established that Mr.

Shankar attempted to defraud ICBC of monies in excess of $5,000. CONCLUSION [ 87 ] In

summary, I find that the Crown has established, beyond a reasonable doubt, that Mr. Shankar uttered a forged document and attempted to defraud ICBC of monies in excess of $5000. I therefore find Mr. Shankar guilty on both counts as charged. _________________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia