R. v. Samji Date:, 2016 BCPC 301

Citation: R. v. Samji Date: 20160928 2016 BCPC 301 File No: 232139-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RASHIDA ABDULRASUL SAMJI EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: K. Marks Counsel for the Defendant: R. Peck, Q.C.; M. Shah Place of Hearing: Vancouver , B.C. Date of Hearing: September 28, 2016 Date of Judgment: September 28, 2016

Introduction [ 1 ] THE COURT: On May 26th, 2016, the accused Rashida Samji, ("Samji") was found guilty of 14 counts of theft over $5,000 contrary to s. 334 (

a) of the Criminal Code of Canada (the "Code") and 14 counts of fraud over $5,000 contrary to s. 381 of the Code. [ 2 ] The convictions were registered following the dismissal of Samji's application pursuant to the Charter of Rights and Freedoms that the criminal proceedings were an abuse of process contrary to s. 7, in the alternative, amounted to double jeopardy contrary to s. 11(

h) in relation to penalties imposed by the B.C. Securities Commission (the "Commission"). The Commission found that Samji had perpetrated a fraud contrary to the Securities Act when she traded securities to not fewer than 200 investors for proceeds of not less than $100 million in relation to an elaborate Ponzi scheme (the "scheme") that was perpetrated by Samji from 2003 until January 30th, 2012. [ 3 ] There were two hundred investors identified by the Commission which included the 14 complainants (the "victims") in the criminal proceedings.

Issue [ 4 ] The sole issue to be determined at this stage is what is a fit and proportionate sentence to be imposed having regard to the circumstances surrounding Samji's criminal behaviour and her personal circumstances, and balancing the aggravating and mitigating factors. Background [ 5 ] In a voir dire ruling cited at 2016 CarswellBC 1443 , I found that the criminal proceedings did not amount to an abuse of process and nor was Samji placed in the position of double jeopardy arising from Commission sanctions.

There was an extensive Agreed Statement of Facts filed in the voir dire setting out details of the fraud. To give context to the sentence proceedings, it will be necessary to summarize some of the Agreed Statement of Facts. [ 6 ] Samji began offering an investment in 2003 in which she represented to investors that the Mark Anthony Group Inc. ("M.A.G.") was expanding its wine business into South America and South Africa.

Samji, who was a licenced notary at the time, prepared documentation entitled, "Summary Investment Opportunity," in which, in part, she lured investors to enter into a secure investment opportunity through a trust fund operated and managed by her notary practice. [ 7 ] The "Investment Opportunity" document was not characterized as a guarantee or a letter of credit, but rather as a Comfort Letter.

In exchange for funds invested, Samji gave each investor a document entitled, "Letter of Direction," in which the funds were to be placed in trust and to remain in trust and not to be paid out to any party without specific direction of the investor. Rates of return varied, but typically were 12 percent per annum payable one month after the date of investment. [ 8 ] The investment opportunity offered by Samji was a fiction. The investment opportunity perpetrated by Samji was a scheme in which she lured investors by offering high returns on their investment.

She would pay the first investors with the money of subsequent investors and not the profits earned by a genuine investment. [ 9 ] Samji's scheme was discovered when anomalies were noted in her bank accounts with the Toronto Dominion Bank. Those anomalies were referred to the Commission and they commenced their investigation. On January 30th of 2012, the RCMP Financial Integrity

Section began its investigation of Samji. [ 10 ] On February 7 of 2012, the Society of Notaries Public of British Columbia (the "Society") gave notice that Samji's membership was suspended. On February 2012, the Society obtained a court order appointing a custodian over Samji's practice. Samji submitted her resignation from the Society on March 6th of 2012. That resignation was ultimately not accepted by the Society. Rather, they directed that there be a notice of termination. [ 11 ] On December 5th of 2012, Samji and her related companies were assigned into bankruptcy. A trustee in bankruptcy was appointed.

Following the findings of the Commission on July 16 of 2014 that Samji had perpetrated a fraud, sanctions were imposed on January 16th of 2015.

Those sanctions included a $10,811,799 disgorgement order along with an Administrative Monetary Penalty of $33,000,000. [ 12 ] The net loss sustained by the victims is as follows: Randip and Jatinder Gill, (Counts 1 and 2), $188,000; Randall Peters, (Counts 3 and 4), $124,000; Victor and Lara Vishwanathan, (Counts 5 and 6), $44,000; Narayani Devi, (Counts 7 and 8), $132,000; Mumtaz Shivji, (Counts 9 and 10), $86,619; Kindy Sall and Lars-Erik Nilsson, (Counts 11 and 12), $56,000; Sharim and Reena Rajan, (Counts 13 and 14), $149,500; Surinder Sandhu and Sukhpaul Sandhu, (Counts 15 and 16), Surinder, $524,500, and Sukhpaul, $213,500; Sanjeev Sidhu and Jennifer Romas, (Counts 17 and 18), $70,000; Clare and Andrew Gray, (Counts 19 and 20), $65,000; Amrit Dhaliwal, (Counts 21 and 22), $424,000; Luis Gonzalez, (Counts 23 and 24), $312,354; Eric Manning and his medical practice, (Counts 27 and 28), $8,107,743.

The Rule Against Multiple Convictions [ 13 ] Both Samji and the Crown concede that the rule against multiple convictions would apply in this case. It was proposed that there should be a conditional stay of proceedings directed in relation to sentencing of Samji respecting the theft convictions and that she be sentenced in relation to the fraud charges. Having regard to the circumstances of this case, that would be entirely appropriate and I do direct that there shall be a stay of proceedings relating to the sentencing of Samji with respect to the theft convictions.

She will be sentenced in relation to the fraud convictions. Position of the Parties [ 14 ] The Crown took the position that a fit and proportionate sentence would be a prison sentence of seven to eight years. The

Crown also sought a restitution order pursuant to s. 738 of the Code along with DNA pursuant to s. 487.051(3) (

b) of the Code to promote the long-term safety of the community at large. Finally, the Crown asked that the Victim Surcharge apply on each of the fraud convictions in the sum of $100 per count for a total of $1,400. [ 15 ] The Crown submitted that it was aggravating that the value of the fraud committed exceeded millions of dollars and that it had the potential to adversely affect capital markets in Canada. [ 16 ] Additionally, there were a large number of victims who suffered financial, emotional, and physical harm as a result of the fraud. The total net loss of the victims was $10,497,000.

The range of the net loss was between $44,000 and up to $8,000,000. There was one family of two investors who had a net gain of $733,500, but ended up as net losers as a result of lawsuits and claims that have been brought or launched against them. [ 17 ] It was further submitted that Samji's fraud was elaborate, deliberate, and premeditated. Samji did not act alone as she recruited a second party, Mr. Patel, a Coast Capital Savings investment advisor, to promote her scheme with Coast Capital Savings customers. [ 18 ] The Crown submitted that the investment opportunity was a big lie right from its outset.

There was no investment vehicle with the M.A.G. There were no Comfort Letters provided to the M.A.G. Business Partners. There was no investment income from fees securing the Comfort Letters. The Society did not secure the investment. The funds were not held in any trust account and the funds were removed from Samji's account without the authorization of the victims. [ 19 ] The funds were used as payments to other investors as returns or paid out for the benefit of Samji herself without any authorization.

The fraud did not stop until it was discovered. [ 20 ] It was submitted that it was aggravating that at all material times Samji promoted herself as a licenced notary and a member in good standing of the Society. She used that position to enhance confidence in her scheme. By using the vehicle of her notary position, she abused a position of trust. [ 21 ] The Crown further submitted that it was mitigating that Samji had no prior criminal record.

Should the court find that Samji was genuinely remorseful, that her remorse should also be taken into consideration. [ 22 ] The Crown cited a series of cases in which the range of sentence for significant fraudulent schemes amounting to net losses in the millions of dollars was five to nine years with the middle range being seven years in prison. [ 23 ] Samji submitted that a four to five-year prison sentence would be a fit and proportional sentence.

Her sentencing submissions can be summarized as follows: [ 24 ] She is 63 years of age; is a Canadian citizen; no prior criminal record; and, born in Uganda to a large happy family. A tragedy struck when her older brother died when she was three years old. The death of her older brother had a profound impact upon her. [ 25 ] She dreamed of becoming a lawyer and, in 1970, moved to London where she attended Guildford College of Law. She completed that program, passed her solicitor's qualifying examination, and obtained an articled position in London.

As a result of unstable political activities in Uganda under President Idi Amin, her family was forced to flee Uganda as refugees and came to Vancouver. Samji gave up her position in London and came to Vancouver to provide support to her family. [ 26 ] In 1975, she met her future husband, Abdul Samji, who she married. In 1980, a daughter was born. The marriage ultimately failed and the husband went overseas to work. Thereafter, Samji held down a variety of different employment positions still dreaming of returning to law school. However, she could not afford the tuition fees so pursued a career with the Society.

In June of 1988 she graduated as a notary placing second in her class. She joined as an associate in a flourishing notary practice. [ 27 ] In 2002, she was diagnosed with breast cancer. Treatment included a total mastectomy with chemotherapy. The onset of the cancer resulted in her suffering from anxiety and depression. She also attempted suicide in 2003.

As a result of the cancer scare, she decided to give up her full-time notary practice and became a roving notary. [ 28 ] She volunteered with the Canadian Cancer Society and would be described as a prominent member of the South Asian community prior to the discovery of her scheme. Her mother passed away in 2007 from cancer and her brother in a plane crash in 2012. She is described as being devastated by their deaths. [ 29 ] She is now earning $14 an hour as a desk clerk at a local hotel in the Lower Mainland and is the primary caregiver for her 90- year-old father who suffers from dementia and depression.

She is described as a caring and hard-working individual in the letters of reference filed on her behalf. [ 30 ] She described becoming involved in the scheme as a result of an intersection of three events. First, she ran into significant financial trouble and, to relieve herself of the burden, had no option but to borrow money from a private individual who imposed usurious rates of interest. Second, she was battling cancer. Third, she was battling depression.

The combination of these three events resulted in an impairment of her judgment in establishing the scheme, though she does not minimize the extent of the fraud. [ 31 ] Samji has submitted there were significant mitigating factors including: she is a first offender; has expressed considerable remorse for her actions; did not contest the theft and fraud allegations following the failed Charter challenge; incarceration will have a significant impact on her elderly father; voluntarily assigning herself into bankruptcy in which the trustee in bankruptcy has distributed $1.8 million to creditors as a result of liquidation of her estate; her criminal conduct was not driven by greed or profit; she is a person who has endured great hardship and overcome significant obstacles; has otherwise led an unblemished life prior to the offences; continues to suffer from serious medical health issues including complications arising from the mastectomy as noted in the medical-legal report prepared by Dr.

Webb; has suffered significant collateral consequences including the media attention arising from the Commission proceedings and the criminal proceedings; her employment opportunities have been greatly reduced; she has and will continue to face

significant civil liability; her financial situation is dire; and, she has been subjected to harsh administrative sanctions imposed by theCommission; which will hang over her head for the rest of her life. [32] Samji took the court through a series of cases establishing a range of sentence. In particular, Samji emphasized the comments ofHill, J. in R. v. Cunsolo, 2012 ONSC 114, at para. 37, where in part, he found that in relation to large-scale frauds involving millions ofdollars, a sentence of six years is within the correct range, though there were instances where three to five years in prison were imposed.

Victim Impact [33] As discussed in the background, all of the victims suffered various degrees of losses. It was a common theme in almost all ofthe victim impact statements that the victims suffered financial loss, depression, and anxiety arising from the scheme perpetrated bySamji. They were all impacted by the extent and depth of the deception. [34] For example, Narayani Devi described feeling robbed by what occurred and now, as a single mother with two daughters, thatshe is experiencing great difficulty in providing for her daughters.

She sees herself personally as being a failure because of her exerciseof poor judgment. [35] Reena Rajan described experiencing heightened levels of anxiety and physical tension coupled with panic attacks. She wasdevastated by the fact that Samji was her husband's first cousin who, in her words, "screwed them over and out of their hard-earnedsavings." [36] These are just a few descriptions of the nature of the victim impacts. Analysis [37] Ranges of sentence are guidelines only.

Absent a mandatory minimum sentence, a fit and proportionate sentence is to be basedupon the circumstances surrounding the offence, the circumstances of the offender, and balancing the aggravating and mitigatingcircumstances. The approach to be taken in determining a proportionate sentence was discussed by Arbour, J. in R. v. Wust, 2000 SCC18 , [2000] 1 S.C.R. 455, at para. 23: In deciding on the appropriate sentence, the court is directed by

Part XXIII of the Code to consider various purposes and principles ofsentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity,totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, oftenin illustrating what an appropriate range of sentence might be in the circumstances of a particular case.

In arriving at a fit sentence, thecourt must also be alive to some computing rules, for example, the rule that sentences cannot normally be back- or post-dated ... [38] The purpose and principles of sentencing are contained in ss. 718 through 718.2 of the Code. It is a fundamental principle thatby operation of s. 718.1 that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. It is clear that Samji was in a position of trust as a notary and she utilized the office of being a notary to perpetrate the scheme.

This would be a deemed aggravating factor pursuant to s. 718.2(a)(iii) of the Code. [39] Pursuant to s. 380.1(1) of the Code, it was aggravating that the fraud committed exceeded millions of dollars; had the effect ofpotentially destabilizing capital markets; involved a large number of victims; and, in committing the offences, Samji took advantage ofthe high regard in which she was held by the victims. It was aggravating and, frankly startling, that Samji would take advantage ofimmediate family and close friends to promote her scheme.

It was clear that she exercised a wanton disregard of the risks that loomedlarge over the victims. They have suffered significant financial, emotional, and physical harm arising from the perpetuation of thescheme. [40] It was difficult to accept her submission that she became engaged in the scheme as a result of the combination of the threeintersecting events which included the financial debt that she was required to pay back to an unnamed source, her battle with cancer, andresulting depression.

Apparently, she was able to pay back the financial debt to the unnamed source, yet continued to perpetuate thescheme which only unravelled when it was discovered. [41] The only reasonable inference to be drawn from the agreed statement of facts was that the scheme was the full-time occupationof Samji. She used investment proceeds to support her lifestyle and, while that lifestyle may not have been lavish, it was certainlysufficient to provide her with a comfortable lifestyle which is no longer enjoyed by the victims. [42] The scheme was elaborate, deliberate, and premeditated.

Professional and complex documentation was prepared by Samji topromote the scheme. I do not find that she became engaged in the promotion of the scheme as a result of an exercise of poor judgment. She knew exactly what she was doing and pursued the scheme with eyes wide open. [43] It was aggravating that she used her position as a notary to lure the victims who unwittingly believed that their investment fundswould be safe in her non-existent notary trust account. The use of her notary status sets her moral culpability at the high end of the scale.

She was the principal who perpetrated the fraud. [44] In mitigation, she is a person with no prior criminal history. She was otherwise a person of prior good character, but ultimatelythat consideration of her prior good character pales in the face of the magnitude of the fraud. She has suffered from considerable stigmaarising from the Commission and criminal proceedings including the impact of media attention.

However, as I noted in my ruling inMay of 2016, at paras. 121 and 124, that the large scale of the fraud perpetrated by her naturally attracted media attention and theresulting stigma caused by media publication would be expected and not exceptional. [45] I have taken into account her personal health issues. I must assume that Corrections Canada will be able to provide appropriateand necessary medical care for Samji in a caring and humane manner.

[ 46 ] I have also taken into account that she has been subjected to significant administrative sanctions imposed by the Commission that will hang over her head for the rest of her life. [ 47 ] It is a significant mitigating factor that Samji did not contest the registration of convictions on all counts following the failure of her Charter challenge. The Charter challenge was based upon an agreed statement of facts which formed part of the trial. None of the victims were called upon to testify.

Had there been a full trial, I must assume that the victims would have been called as witnesses which would have likely caused greater hardship to them. The Charter challenge itself was of merit and was not frivolous. Important issues were raised pursuant to ss. 7 and 11 of the Charter . The fact that the Charter challenge failed does not reduce the value of those important issues. [ 48 ] Samji has also expressed her remorse to the victims and to the court in relation to her involvement in the scheme. I accept the position taken by her that she is remorseful for her conduct.

Disposition [ 49 ] The principles of general deterrence and denunciation are paramount in this case. A message must be clearly sent to those who may commit large frauds in capital markets that there will be a significant consequence for their misconduct in criminal proceedings. [ 50 ] Could you stand, please. [ 51 ] I have determined that a fit and proportionate sentence is six years to be served in a federal penitentiary on each of the fraud convictions.

The sentences are to be served concurrently. [ 52 ] The Victim Surcharge shall apply on each of the convictions and shall be payable two months following your release from custody. Should that pose a hardship, you may apply under s. 737 of the Code to seek an extension of time for payment of the surcharges. [ 53 ] Pursuant to s. 487.051(3) (

b) of the Code , you shall provide a sample of your DNA.

I have determined that such an order promotes the safety of the community at large. [ 54 ] Pursuant to s. 738 of the Code , restitution is ordered as follows: Randip and Jatinder Gill, $188,000; Randall Peters, $124,000; Victor and Lara Vishwanathan, $44,000; Narayani Devi, $132,000; Mumtaz Shivji, $86,619; Kindy Sall and Lars-Erik Nilsson, $56,000; Sharim and Reena Rajan, $149,500; Surinder Sandhu and Sukhpaul Sandhu, respectively, $524,500 and $213,500; Sanjeev Sidhu, Jennifer Romas, $70,000; Clare and Andrew Gray, $65,000; Amrit Dhaliwal, $424,000; Luis Gonzalez, $312,354; Eric Manning, $8,107,743. [ 55 ] That concludes my ruling. [REASONS FOR SENTENCE CONCLUDED]