r v. NILUFAR YASMIN HOSSAIN, 2010 QCCQ 3851

R. c. Hossain 2010 QCCQ 3851 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-73-003113-095 500-73-003114-093 DATE: MAY 6 TH , 2010 ______________________________________________________________________ BY THE HONOURABLE SERGE BOISVERT, Q.C.J. ______________________________________________________________________ THE QUEEN Prosecutor v.

NILUFAR YASMIN HOSSAIN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Nilufar Yasmin Hossain responds in the case no. 500-73-003114-093, of twelve counts of accusation of having between July 1 st , 2007 and January 30 th 2008, at or near Montreal, in the district of Montreal, Province of Quebec, by deceit, falsehood or other fraudulent means, did defraud CIBC Bank (CIBC Dividend Card), Royal Bank of Canada, Bank of Montreal (MasterCard Mosaik), TD Canada Trust (Visa Rebate Rewards), Desjardins (Visa Desjardins Brault et Martineau), Canadian Tire Financial Services (MasterCard Canadian Tire Options), National Bank of Canada (MasterCard), RBC Royal Bank (Visa Platinum), RBC Royal Bank (RBC Rewards Visa Gold), HSBC (HSBC Future Shop), Citifinancial Retail Services (CitiFinancial Leon’s), HBC (HBC-LaBaie credit), for value exceeding five thousand dollars, committing therefore an indictable offence pursuant to section 380 (1) of the Criminal Code . [ 2 ] In file no. 500-73-003113-095, Nilufar Yasmin Hossain responds to 4 counts of similar accusations to have in the same period by deceit, falsehood or other fraudulent means, did defraud HSBC (HSBC Brick Card), AMEX (AMEX credit card), Chase (MasterCard Sears), CIBC Bank (Account # […]) for value not exceeding five thousand dollars, committing therefore an indictable offence pursuant to Section 380 (1) (b) (

i) of the Criminal Code . [ 3 ] The combined amount of the 16 counts of fraud adds up to 142 929.63$. [ 4 ] At the trial, the prosecution did not call any witness; its evidence consisting of written admissions consented by the accused. These admissions are essentially the following: " ADMISSIONS […] 1. The identification of the accused : NILUFAR YASMIN HOSSAIN (DOB 1974-[...]); 2. The civic addresses to which the accused has lived since January 2007 are : 1. […], Montreal, […] ([…]); 2. […], Montreal, […] ([…]) – The accused moved there in May or June 2007; 3. […]7, Montreal, […] ([…]); 3.

That refused cheques were signed by the accused; 4. That the bank account #[…] at the TD Bank was opened by the accused and under her name; 5. That the accused applied on June 16 th , 2007 to obtain the credit card Visa Desjardins ([…]); 6. That the accused applied on June 2007 to obtain the credit card Rewards Visa Gold RBC ([…]); 7. That the accused applied on July 8 th , 2007 to obtain the credit card HSBC Future Shop;

8. That the accused applied on August 28 th , 2007 to obtain the credit card HSBC Brick; 9. That the accused applied in July 2007 to get the credit card Citifiancière Leon; 10. That the accused was employed by Les Tricots Mains Inc. from June 3 rd , 1997 to August 28 th , 2001; 11. That the company Les Tricots Mains Inc. terminated the accused employment on April 28 th , 2001, due to a non-justified long term absence; since she had not worked for them since August 31 st , 1998; 12. That the accused made an assignment in bankruptcy on January 29 th 2008 (which was registered on January 31 st 2008); 13.

That the accused gave her credit cards to the trustee Mr. Robert Takkash at the moment of her assignment in bankruptcy; 14. That the accused was unemployed at the time of her bankruptcy; 15. That registered transactions on the credit card/bank accounts mentioned on counts on both informations are exact and accurately represent the executed transactions; […] 16.

The production into evidence of the documentary evidence content in the volume one (1) to four (4) of the "Rapport d'enquête" (notably the credit card statements, bank reports, the credit cards application forms, the cheques and any other bank documentations and correspondences) disclosed to the defence on February 25 th 2009, as evidence of the truth of their contents; 17. The production into evidence of the records and documentations emanating from the trustee as evidence of the truth of their contents (p. 14 to 141 of the volume 1 of the "rapport d'enquête" ); 18.

The production into evidence of a document entitled "narrative" as evidence of the truth of its content. That document prepared by the crown counsel in collaboration with the defence counsel summarizes the transactions from which the charges originate. " " Narrative

SUMMARY : […] Ms. HOSSAIN made an assignment in bankruptcy on January 29 th , 2008 which was registered on January 31 st , 2008. On January 29 th , 2008, Ms. HOSSAIN declared to the trustee an indebtedness of $ 154,517 in total. In her assignment in bankruptcy, she confirms under oath having no money and no assets. Most of these debts were incurred by the use of credit cards. At the time of bankruptcy she declared to the trustee that she was unemployed and, based on her monthly budget, her social welfare payments were $ 570, and she received $ 437 in child benefits, for a total revenue of $ 1,007/month.

Before her bankruptcy, Ms. HOSSAIN held 15 credit cards and at least 2 credit lines with 12 different financial institutions. It is for these credit cards and credit lines that she has been charged. Ms. HOSSAIN's indebtedness in July 2007, at the beginning of the fraudulent actions on the different credit cards and credit lines, was $ 39.55. The better part of the cash advances and purchases on these credit cards and credit lines occurred during a period of six (6) months, from July 2007 to December 2007.

Between July 2007 and December 2007 inclusively, advances and purchases on these credit cards were made in the amount of $ 143,874.51. In that same period of time, payments were made on her different credit cards and accounts in the amount of $ 129,723.80, out of which $ 129,465 in payments were cancelled for insufficient funds.

Total amount of fraud for which the accused is charged is $ 142,929.63." (Certaines mentions n'apparaissant pas essentielles sont omises). [ 5 ] In defence, the accused was heard and it is possible to summarize her testimony as follows. [ 6 ] The accused, a native of Bangladesh, immigrated to Canada in September 1992, where she lived with her parents until July 1997, date of her marriage. [ 7 ] She worked for the company Les Tricots Mains Inc. in 1997 and 1998.

This company ended the employment of the accused on August 28th, 2001 due to an unjustified long-term absence, the accused failed to show up for work since August 31st, 1998. [ 8 ] Besides her work at Les Tricots Mains Inc., the accused has worked only a few weeks since her arrival in Canada. [ 9 ] At the time of her employment by Les Tricots Mains Inc., the accused had obtained at least two credit cards she used and reimbursed in accordance with usual procedures. Subsequently, she obtained from financial institutions, such as the Royal Bank, CIBC and National Bank, four or five additional credit cards.

On the application forms for these credit cards, it is stated that the accused worked for Les Tricots Mains Inc., with a salary ranging between 24 and $ 31,000. [ 10 ] These last references are inaccurate because in reality, the accused and her husband were unemployed and Welfare recipients. The accused justifies these erroneous entries, saying they had not applied for those credit cards; they have been offered to her without

solicitation on her part and believed it was correct to write the name of her last employer. [ 11 ] In May 2007, the accused goes through a difficult time and decides to leave her husband.

She mentioned her predicament to a man named Marouf, an individual involved in the sale of tickets and various promotions in the community from which the accused is a member. [ 12 ] Marouf who she barely knows tells her of his intention to help her and said to contact him if necessary. [ 13 ] In mid-May 2007, she is seeking an apartment for herself and her daughter; she crosses Marouf who reiterates his offer to help. [ 14 ] The accused, who testifies not to speak French and have a very rough English, was isolated in her community and entrusted her fate to Marouf by trusting him completely.

Marouf holds out the prospect of the possibility to improve her financial situation, to invest in a business. The contribution of the accused would come from money that she obtained by advance from credit card issuing financial institutions. Although Marouf has never specified the type of business where she needed to invest, the accused believed it was a Dollarama-type business.

She never asked any questions about this, relying entirely on Marouf and a certain Riaz that Marouf introduced her to. [ 15 ] Along with Riaz and Marouf, the accused went to financial institutions and businesses to complete application forms for credit cards which she would have signed without paying attention to their content. [ 16 ] Marouf has informed the accused not to discuss their project with anyone, as long it was not done.

Consequently, she never spoke of it, to her ex-husband or her brother with whom she occasionally resided at the time. [ 17 ] Marouf told her not to worry, he would take care of everything and her financial contribution to the business, which was to reach over $ 200,000, would come entirely from the advances obtained on credit cards.

She could, subsequently, reimburse financial institutions out of the profits generated by the business. [ 18 ] Also according to the accused, it is Marouf who suggested writing in the credit application forms the address and name of her employer, Les Tricots Mains Inc., where she had worked several years before. She did not know that by doing this she was misleading the financial institution.

She even stated to Marouf she was unemployed and a recipient of Welfare, but the latter told her it was correct to include the name of the last employer. [ 19 ] The accused must admit she knew she had to include the name of an employer or the bank to agree to issue a credit card, but added that by mentioning the name of her former employer she did not think she was uttering a falsehood. [ 20 ] While the accused says that it was Marouf who suggested to write the name of her former employer, she must recognize that in an application for a credit card from American Express completed in 2006 (P-16) she declared the name of the same employer Les Mains Tricots Inc. and it mentions that she earned $ 24,000 per year. [ 21 ] The accused said to have mentioned the name of the employer but does not remember having reported earnings.

She adds that the American Express card was offered to her, she did not solicit it and finally she gave the name of the employer. She says: "They were offering me so I took it" . [ 22 ] At the question of why she did not say she was a recipient of Welfare, the accused replied: "Q- But you knew perfectly well that if you told the truth, that you were on Welfare state, you will not receive any credit card? A- Many people who are on Welfare have their credit cards – they get the credit cards. Q- Why didn't you tell the truth, then? Why didn't you tell them that you were on Welfare? A- I didn't say. Q- Eh?

A- I didn't say. Q- Why?

A- I didn't say it, what else can I say?" [1] [ 23 ] The accused testifies that she had during the months of July and August 2007, at the initiative and suggestion of Marouf and Riaz, gotten extra credit cards with which she has procured mainly cash advances that have been preserved by Marouf and Riaz to be invested for her in the proposed business. [ 24 ] In addition to these advances, the accused acknowledges that the cards helped acquire for thousands worth of furniture and home furnishings for her new apartment and that amounts were awarded by Marouf and Riaz to meet her immediate needs. [ 25 ] Still according to the accused, Marouf and Riaz advised her that they would make the minimum monthly payments required by the credit institutions before she can herself make them with the profits from the business.

She received monthly mailed statements of account that she gave to Marouf and Riaz without opening them, according to their instructions. She has however received during the summer of 2007 a letter from an institution, which she opened. She then found out that her credit had been exceeded. She discussed the situation with her ex-husband and with him she met a member of her community who translated the letter. She then understood she had been fooled. She attempted to obtain reimbursement from Riaz and Marouf without success. She even threatened to report them to the

police, but Marouf said that Riaz controlled thugs that could cause her great damage.

This is why she has not contacted the police to complain. [ 26 ] Cross-examined on certain expenditures made with her credit cards as purchases of airline tickets in September or October 2007, the accused does not understand such expenditures and denies having made or authorized them. [ 27 ] Notknowing what to do, the accused finally resolved in January 2008, at the suggestion of her ex-spouse, to see a trustee in bankruptcy to free herself of her obligations consisting mainly in debts contracted through her credit cards during the summer of 2007.

The accused admits she was duped by Marouf and Riaz and that at no time had the intention to defraud the banks or companies issuing credit cards. [ 28 ] The accused believed the representations by Marouf and Riaz and believed she could repay the banks or institutions issuing credit cards with the benefit of her future business.

The law [ 29 ] Anyone who by deceit, falsehood or other fraudulent means constituting or not a false pretence, defrauds another person of any money, value, or good is guilty of a crime of fraud. [ 30 ] The false pretence is defined as the representation of a fact past or present in words or otherwise, that which is known to be false and made with the fraudulent intent to induce the person to whom it is addressed to act on this representation. [ 31 ] For there to be fraud, it is not necessary that the victim was either impoverished or that the accused was enriched.

As stated by the Court of appeal in the Théroux decision [2] : " 2. The Actus Reus of Fraud Since the mens rea of an offence is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of the offence of fraud. Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan: (

i) the offence has two elements: dishonest act and deprivation; (ii) the dishonest act is established by proof of deceit, falsehood or "other fraudulent means"; (iii) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act. Olan marked a broadening of the law of fraud in two respects. First, it overruled previous authority which suggested that deceit was an essential element of the offence.

Instead, it posited the general concept of dishonesty, which might manifest itself in deceit, falsehood or some other form of dishonesty. Just as what constitutes a lie or a deceitful act for the purpose of the actus reus is judged on the objective facts, so the "other fraudulent means" in the third category is determined objectively, by reference to what a reasonable person would consider to be a dishonest act. Second, Olan made it clear that economic loss was not essential to the offence; the imperilling of an economic interest is sufficient even though no actual loss has been suffered. By adopting an expansive

interpretation of the offence, the Court established fraud as an offence of general scope capable of encompassing a wide range of dishonest commercial dealings." [ 32 ] Concerning the required criminal intention, the Supreme Court mentions in Théroux : " 3. The Mens Rea of Fraud (

i) Doctrinal Considerations This brings us to the mens rea of fraud. What is the guilty mind of fraud? At this point, certain confusions inherent in the concept of mens rea itself become apparent. It is useful initially to distinguish between the mental element or elements of a crime and the mens rea. The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused.

Its function in criminal law is to prevent the conviction of the morally innocent — those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus. Thus in the crimes of homicide, we speak of the consequences of the voluntary act — intention to cause death, or reckless and wilfully blind persistence in conduct which one knows is likely to cause death. In other offences, such as dangerous driving, the mens rea may relate to the failure to consider the consequences of inadvertence.

This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused's intention and the facts as the accused believed them to be: G.

Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 727-28. Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with the accused's system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on the

mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what hewas doing was honest. The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thoughtwas in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred fromthe act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from thesubjectivity of the test.

Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood,or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen,consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one wasundertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving anotherof property or putting that property at risk. If this is shown, the crime is complete.

The fact that the accused may have hoped thedeprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence.

To putit another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined byreference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining themens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act)knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation).

The personal feeling ofthe accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused'sawareness that the particular acts undertaken constitute a criminal offence. This applies as much to the third head of fraud, "other fraudulent means", as to lies and acts of deceit. Although otherfraudulent means have been broadly defined as means which are "dishonest", it is not necessary that an accused personally consider thesemeans to be dishonest in order that he or she be convicted of fraud for having undertaken them.

The "dishonesty" of the means isrelevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable peopleconsider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. Thatestablished, it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk ofdeprivation, could follow as a likely consequence."[3] [33] In The Queen v. Zladic[4], the Supreme Court writes on the topic of criminal intention. " 3.

The Mens Rea The findings of the trial judge establish that the appellant, when he received the goods, did not care whether or not he paid forthem, and then proceeded to sell them and divert the money received from their sale to gambling. As is pointed out in Théroux, releasedconcurrently, fraud by "other fraudulent means" does not require that the accused subjectively appreciate the dishonesty of his or heracts.

The accused must knowingly, i.e. subjectively, undertake the conduct which constitutes the dishonest act, and must subjectivelyappreciate that the consequences of such conduct could be deprivation, in the sense of causing another to lose his or her pecuniaryinterest in certain property or in placing that interest at risk. This accused knew precisely what he was doing and knew that it would have the consequence of putting his creditors'pecuniary interests at risk.

It is true that the trial judge made no explicit finding that the accused subjectively appreciated that ingambling he was subjecting the interests of others to the risk of deprivation. However, the trial judge, in convicting, must haveconcluded that the necessary mens rea was present. Indeed, it is difficult to see how, on the evidence, he could have concludedotherwise.

The cross-examination of the accused shows that, having undertaken an enterprise which amounts to "other fraudulentmeans" according to the principles set out above, he subjectively appreciated that this enterprise put the pecuniary interest of his creditorsat risk. Comments such as the following are typical: I had a chance to lose but I had a chance to win too, and I believed that my system, [sic] I worked on my system, and I can show you thesystem that I played. The system is [sic] a very small possibility to lose, except if the luck is not on your side.

And basically it happenedthat I did lost [sic] again. (C.O.A., at p. 1503. See also pp. 1500, 1504 and 1506-7.) In short, there is nothing in the evidence which negates the natural inference that when a person gambles with funds in whichothers have a pecuniary interest he knows that he puts that interest at risk: see Théroux, at pp. 000 and 000. On the contrary, the accusedexpressly acknowledged that he was aware of the risk. The foregoing establishes the mens rea. It is no defence that the accused believed he would win at the casinos and be able topay his creditors: R. v.

Lemire, (S.C.C.), [1965] S.C.R. 174, Lafrance v. The Queen, (S.C.C.), [1975] 2S.C.R. 201, and Olan, supra." [34] According to the Court, the accused knowingly made false representations to obtain not only during the summer of 2007 butbefore, credit cards.

Despite her testimony to the effect that she believed it was justified to indicate the last job she had held, the Court isof opinion that the accused knew full well that if she reported being a recipient of Welfare and had no income, she would not get credit,especially credit of this magnitude. [35] The fact that the defendant hoped to pay back her debts with the proceeds of any business does not change the fact that shehas deliberately chosen to be a risk of detriment to the lending institutions in misrepresenting her financial capabilities. [36] The accused presents herself as the victim of Marouf and Riaz.

Yet in 2006, before knowing these two characters, she hadobtained credit cards following her misrepresentations. She was not as naive as she claims when in 2007 she would have met Marouf andRiaz and was well aware that the funds were obtained at the risk of the banking institutions. The Court has no reason however tocompletely rule out the accused’s assertion to the effect that she is not the only or even the main beneficiary of the proceeds of fraud. It is

likely, as claimed by the accused, that some expenditures were made without her knowledge such as the purchase of plane tickets and others, whether named Marouf, Riaz or others, were appropriated a high share of misappropriated funds. [ 37 ] Moreover, even if others have benefited from the fraud, the accused has also benefited by the purchase of furniture and appliances and the acceptance of certain amounts of money. [ 38 ] The fact that the accused believed she could possibly invest in a business and repay the lenders can not constitute a defence because the accused has induced by deceit and false pretences banking institutions into giving her credit cards and cash advances to obtain personal property and very important sums of money in a very limited period of time. [ 39 ] As the Supreme Court mentions in the Zladic [5] decision, "It is no defence that the accused believed he would win at the casinos and be able to pay his creditors" . [ 40 ] The accused is therefore declared guilty on all counts of accusation. ______________________________ SERGE BOISVERT, Q.C.J.

Me Olga Nunes Service des poursuites pénales du Canada Attorney for Prosecutor Me John Roderick Philpot Beauchemin, Paquin, Jobin, Brisson & Philpot Attorney for Accused Date of hearing : February 22 th , 23 th and March 15 th , 2010