2019 QCCQ 384, 2019 QCCQ 384

JL 3975 R. c. Shahid 2019 QCCQ 384 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division N o : 500-01-127525-159 Date: January 28, 2019 ______________________________________________________________________ BY THE HONOURABLE PIERRE E. LABELLE ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

IMRAN SHAHID Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Imran Shahid (the accused) was in 2013 a mortgage broker. He was there to help potential home buyers to realize their dreams of owning a house. Unbeknownst to them, he was also in a dire financial situation. The Crown alleges that he defrauded two clients and used the sums in order to somewhat alleviate his financial stress. [ 2 ] It is with that background that the accused met with Mr. Mahmood and Mr.

Lubana, who were both looking to buy a house. [ 3 ] Mr. Shahid now faces an indictment with 3 counts of fraud over 5 000.00$, no evidence was lead regarding the second count. The accused chose not to testify. THE EVIDENCE Mr. Mahmood [ 4 ] Mr. Mahmood was looking for a property in the spring and summer of 2013 for himself and his ailing mother. He saw an ad of the accused in a local newspaper and seeing how he seemed professional, he contacted Mr. Shahid [1] . The two met on several occasions, and a property was identified [2] .

The witness had no experience in real estate transactions. [ 5 ] It was agreed that the accused would make the necessary arrangements in order to secure a mortgage and find a notary for the purpose of finalizing the eventual transaction. Sometime after the initial meeting, the accused informed Mr.

Mahmood that he was approved for a mortgage and he had to make a down payment in the amount of 36 ooo.oo$. [ 6 ] The accused informed him that he had to make 3 separate checks; one was to be labelled to “ Avocats Tremblay Inc .” in the amount of 12 000.00$, the second made out to “ Jerry Devlasian ” for 2 000.00$ and another in the amount of 24 000.00$ that was directed to the notary. It was understood by Mr. Mahmood, from the conversations he had with the accused that these sums were to go towards the down payment of the property.

The accused mentioned that the check of 12 000.00$ was for the owner’s association and the amount of 2 000.00$ was for his fees. [ 7 ] He also reassured the buyer that when it was time to visit the notary, everything was going to balance out. The buyer did not know who neither “ Avocats Tremblay Inc .” nor “ Jerry Devlasian ” but he trusted the accused. [ 8 ] The good news came, he was approved for a mortgage, but he had to, according to the accused, lower his overall debt, namely by paying off his car loan and a personal line of credit.

The accused advised him that he could lend him the money for his car loan (approximately 8 500.00$) which could be paid back by the buyer, through a line of credit attached to the mortgage. This is what happened. The personal line of credit was paid by the buyer, in cash. The accused gave a check in the amount of 8 652.00$ which in turn was deposited at the bank by Mr. Mahmood in order to settle his car loan [3] . It came from the account of “ I.S. Financial Services Inc ” which is linked to the accused [4] in the days following, the check was returned with a mention “dishonored item” [5] . [ 9 ] When Mr.

Mahmood went to the notary, he was accompanied by the accused. It was then that the buyer saw there were discrepancies between the amounts of money he already gave toward the down payment and what was set out in the paperwork. The

accused was able to reassure the buyer that everything was normal, but he still had to put down more money in order to satisfy the minimum amount of the down payment. [ 10 ] Once paperwork for the mortgage was approved, the buyer had access to a line of credit which he used the same day of the approval to pay back the amount loaned to him by the accused. Also, saying that he had a problem with his bank card, the accused asked Mr. Mahmood to withdraw 1 000.00$ from his account and he gave him another check from a personal checking account in the same amount.

This took place around July 17, 2013, unfortunately, that check was also dishonoured by the bank [6] . [ 11 ] While the buyer was able to buy the house, he was under heavy financial pressure from the losses he suffered. That led to a depression which translated to more financial losses because of his inability to work. In the end, the property was seized and Mr. Mahmood had to declare bankruptcy. His losses were refunded after some delay by the O.A.C.I.Q [7] . Mr. Lubana [ 12 ] He was looking to buy a house in Vaudreuil-Soulanges in the fall of 2013 and he saw an ad of the accused.

They met in September and discussed the project. The accused affirmed that he would take care of everything, including the mortgage approval with a financial institution. [ 13 ] After the initial meeting, the accused contacted the buyer telling him that the loan had been approved. In preparation for the visit to the notary’s office, he had to prepare the down payments. Following the instructions of the accused, Mr. Lubana had 2 bank drafts prepared. The first one labelled to “ Avocats Tremblay Inc.” for an amount of 5 500.00$ [8] and the second for an amount of 14 350.00$ was made out to “Platinum Consortium”.

These two bank drafts were given personally to the accused by Mr. Lubana. [ 14 ] The property was never purchased because the buyer found out that the mortgage had never been approved, this came in contradiction with the statement made by the accused and the documentary evidence that he gave him [9] .

He made the verification with the bank, and found out that they had not approved a mortgage, in fact they had nothing under his name at that institution. [ 15 ] He asked on several occasions a reimbursement from the accused who said he would do it, but ultimately never did. [ 16 ] He was able to recover his money after a while in the same manner as Mr. Mahmood did. The notary [ 17 ] Radwan Moussa is a notary who, in 2013, was working in Laval and had a short lived business relation with the accused. He was responsible for the signing of the deed of sale of the property acquired by Mr. Mahmood.

He saw him once, at the signing, but the down payment was not sufficient, about 24 ooo.00$. Mr. Mahmood had to give more money to satisfy this requirement. Mr. Mahmood had to give 2 others checks and 400.00$ in cash to meet the amount sought. This was is second to last transaction with the accused, he stopped taking his business because they did not seem straight. When he spoke to Mr. Mahmood in the fall of 2013, he suggested he should call the police. The Trustee [ 18 ] Jerry Devlasian is a trustee in bankruptcy. In the summer of 2013, the accused consulted him for his financial problems.

His balance sheet showed a little over 200 000.00$ in unsecured debt and more than 210 000.00$ in secured debt. The accused made a proposal to his unsecured creditors, with the help of Mr. Devlasian, and had to deposit 1 100.00$ a month for 60 months in order to clear that part of his debts. Unfortunately, in 2014, he stopped making the monthly payments, therefore the proposal was rescinded. [ 19 ] He did however make some payments to his Trustee, and the check drawn by Mr. Mahmood, was indeed cashed by him. It was put in his trust account and the monies were distributed to the creditors.

Count # 2 [ 20 ] No evidence was lead regarding the second count of the indictment. The accused is therefore acquitted of that charge. ANALYSIS The plaintiffs [ 21 ] Is the testimony of Mr. Mahmood reliable? There are, as was noted by defence counsel, some discrepancies in his story, namely with the amount of the down payment whether it was 38 ooo.00$ or 34 000.00$, whether he was really alone in this saga or if he was helped by his older brother in the transaction. If so, this would make his claim of being a neophyte in the real estate business seem untrustworthy.

There are also some issues regarding some of the dates, it must be recognized that the witness did have some problems with dates and the timeline of this affair. [ 22 ] The Court takes note of the discrepancies but on the whole of the evidence presented they do not affect the reliability of the witness account of what transpired between him and the accused. Moreover, his testimony benefits from documentary evidence that demonstrate the claims made by the witness regarding the amounts of money asked by the accused. The evidence proffered by the witness is also not contradicted.

This does not mean that the testimony of Mr. Mahmood should be taken at face value; indeed it needs to be scrutinised with the whole of the evidence, but with little else to compare the evidence of the witness, it cannot be rejected [10] . Therefore, the Court retains the following elements. Mr. Mahmood met with the accused and they had a business relationship regarding the purchase of a property. The accused took the responsibility of arranging the transaction, including the mortgage approval. He asked and received, from Mr. Mahmood, the 3 checks discussed before.

[ 23 ] It is also retained that one of the check was used by the accused to pay part of bankruptcy proposal thru the office of his Trustee, Mr. Devlasian. [ 24 ] Finally, there were 2 amounts of money given by the witness to the accused in exchange of checks, which were not honored by the financial institutions. On that topic also, the Court believes the evidence led by the witness. No amounts were given back by the accused to the witness. [ 25 ] The same conclusions should apply to the testimony of Mr. Lubana. His testimony appeared reliable and credible. It is also supported by documentary evidence.

Regarding Mr. Lubana, the Court retains the following facts. He asked the accused for help for the purchase of a property and his role was to secure the mortgage and to assure that the transaction would go through. For that purpose he asked and obtain 2 bank drafts for the purpose of the down payment on the property. Further, it is accepted that no mortgage was ever authorized for the property that Mr. Lubana wanted to acquire, and that the transaction never went through. He was never reimbursed by the accused for the 19 500.00$ he gave him.

The residence in Brossard [ 26 ] Written on one of the bank drafts given by Mr. Lubana, to the accused and made out to “ Tremblay Avocats ” is the flowing address: “ 7630 De La Loire, Brossard” and there is the mention “ Imran ” at the right bottom corner of the document. Finally, it is written on the backside of the draft that it is for deposit only in the trust account of “ Tremblay Avocats ”. This information is to be read with the property assessment roll and the index of immovables of the City of Brossard [11] , regarding the said property on De La Loire.

The property was in the name of the accused [12] in 2014, but here also, he was in a dire situation. The bank who authorized the mortgage on the property was, at that time, taking steps to foreclose and sell the property. [ 27 ] If the Court understood well the argument made by the Prosecution, it should be inferred that the bank draft given by Mr. Lubana, in the amount of 5 500.00$ was for the purpose of paying amounts due concerning the residence. It could also be inferred that the certified check given by Mr. Mahmood and labelled to “Avocats Tremblay Inc” was for the exact same thing.

While a tempting argument, it does not survive analysis. First, the name of the accused does not appear on the index before May of 2014. Second, there is a missing link, the Court does not know what really happened with the money once it was deposited in the lawyers firm trust account. One could infer that it was used for the residence somehow; one could also infer that it was for the payment of legal fees unrelated to the residence. For inferences to be drawn, they must rely on proven facts, which are absent from the record.

Therefore the Court does not make that inference. [ 28 ] The evidence establishes that sums of money were taken by the accused from 2 individuals and these were not reimbursed. Are those acts fraudulent? Was it a fraud? [ 29 ] Our Supreme Court determined that a fraud is a: “ […] prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means: and deprivation caused by the prohibited act, which may consist in actual loss or placing of the victim’s pecuniary interests at risk [13] ” . [ 30 ] As for the criminal intent, it was said: “ […] the mens rea of fraud is established by proof of subjective knowledge of the prohibited act: and subjective knowledge that the prohibited act could have as a consequence the depravation of another (which depravation consist in knowledge that the victim’s pecuniary interests are put at risk) [14] ” . [ 31 ] Following this definition when the accused asked and received the checks from Mr.

Mahmood and Mr. Lubana, checks that were labelled to different persons, he was committing the act of fraud because he was taking money from two individuals under the guise of one reason (making the down payment of the 2 properties) while using the same money for something else; paying the firm Avocats Tremblay for whatever reason, Platinum Consulting and also Mr. Devlasian. One must keep in mind that he never reimburse them. [ 32 ] Further, the monies he was given access to by Mr. Mahmood after he purchased his property in exchange of checks that were not honoured by the banks, is also

an act of fraud, if the evidence demonstrates that he had no intention of giving the sums back or if he did, he did not possess the means to do so. [ 33 ] The intention to commit fraud needs to be analysed in a subjective manner. Turning again to Théroux , the Court said: “ The accused must have subjective awareness, at the very least, that his or her conduct will put the property or economic expectations of others at risk.

As noted above, this does not mean that the Crown must provide the trier of fact with a mental snapshot proving exactly what was in the accused’s mind at the moment the dishonest act was committed.

In certain cases, the inference of subjective knowledge of the risk may be drawn from the facts as the accused believed them to be [15] ” . [ 34 ] And further: “ To establish mens rea of fraud the Crown must prove that the accused knowingly undertook the acts which constitutes the falsehood, deceit or other fraudulent means, and that the accused was aware that depravation could result from such conduct [16] ” . [ 35 ] What evidence shows that the accused knew that his actions could deprive Mr. Lubana and Mr.

Mahmood? [ 36 ] First, he had them made out checks to “ Avocats Tremblay ” under the guise that it was for the down payment of the properties they wanted to buy. As the evidence demonstrates, these checks were never put to that purpose.

[ 37 ] Second, he asked that a check be made to “Jerry Devlasian” also under the guise that it would be used toward the down payment, or part of his fees for the transaction. Evidence shows the contrary and with this particular item, it was put toward the bankruptcy proposition of the accused. Even if Mr. Mahmood understood from the accused that this sum was indeed for his fees, having the check made out to a third person, and knowing why, is still

an act of deceit. [ 38 ] Third, the accused was at the time in a dire financial position, to the point were asked a client to withdraw a sum of money in exchange for a check that bounced at the bank. [ 39 ] Fourth, the Court draws an inference also of the intention of the accused from the number of dishonoured checks he wrote to Mr.

Mahmood. [ 40 ] Fifth, he never returned the monies to the plaintiffs, although he was asked on numerous occasions and that he said to both of them he would. [ 41 ] The whole of the evidence demonstrates that the accused committed deceitful acts by lying to the plaintiffs as to the use of some of the amounts of money he asked them to give him and, that he knew in doing so he put their money at great risk. [ 42 ] The Court is therefore convinced, beyond a reasonable doubt that the accused Imran Shahid is guilty. CONCLUSION The accused Imran Shahid is declared guilty of counts 1 and 3.

He is acquitted on count 2. __________________________________ Pierre E. Labelle, J.C.Q. Me Louis-Philippe Meek-Baillot On behalf of the Prosecutrix Her Majesty The Queen Me Stéphanie Gariépy Me Marianne Carrier On behalf of the accused Imran Shahid Dates of hearing: December 5 th , 6 th and 7 th 2018