) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 74

CITATION : R. v. Kassam, 2017 ONSC 74 COURT FILE NO.: 15-6476 DATE: 20170105 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – INAYAT AL-NASHIR KASSAM Defendant ) ) ) ) ) ) ) )) David Moull for the Crown Inayat Kassam in person ) ) HEARD: January 5, 2017 SENTENCING REASONS boswell j. [ 1 ] Mr. Kassam has been found guilty, by a jury of his peers, of fraudulently depriving Adam Seif of $6,000; uttering a forged document, namely a $6,000 cheque written on the trust account of Adam Seif; and fraudulently depriving the public of a sum greater than $5,000.

It now falls to the court to impose a just and fit sentence. The Circumstances of the Offences [ 2 ] Mr. Kassam purports to have a law degree from a university in Florida. He is not a member of the Ontario bar. He is not licensed by the Law Society of Upper Canada to provide legal services in Ontario. [ 3 ] Adam Seif, on the other hand, is a lawyer, licensed to practice law in Ontario. He met Mr. Kassam in August 2012 and hired him as a legal assistant and office manager. Mr. Seif testified that Mr.

Kassam was tasked with, amongst other things, conducting intake interviews with clients; completing retainer agreements; and drafting pleadings and correspondence for Mr. Seif’s review. [ 4 ] Pursuant to ss. 724(1) and (2) of the Criminal Code , I may accept as proven any fact disclosed in evidence during the trial, though I must not come to factual conclusions inconsistent with the jury’s verdicts. [i] I make the following findings of fact in terms of Mr. Kassam’s relationship with Mr. Seif: (

a) Mr. Seif did not provide sufficient oversight or supervision with respect to Mr. Kassam’s activities; (

b) Mr. Kassam did not limit himself to the functions Mr. Seif described. Mr. Kassam took on clients on his own without Mr. Seif’s knowledge and/or approval and conducted work on behalf of those clients inconsistent with his role as legal assistant; (

c) Mr. Kassam essentially performed the role of a junior lawyer or paralegal, though it is not clear to me how much of this role Mr. Seif was aware of and/or condoned. Mr. Kassam also held himself out as a lawyer to members of the public while in Mr. Seif’s employ; and, (

d) Mr. Kassam was paid monthly, by cheque made out to a numbered company controlled by Mr. Kassam. He was paid a base salary plus commissions on any file he brought into the firm. [ 5 ] Sometime in or around August 9, 2013, Mr. Kassam wrote himself a cheque for $6,000 from Mr. Seif’s trust account, without authorization from Mr. Seif. Why he did so can only be speculated about. In any event, he forged Mr. Sief’s signature on the cheque, or, at the very least, knew that someone else had done so. This was the fraudulent transaction the jury convicted him of in respect of count one on the indictment. [ 6 ] Mr.

Kassam then negotiated the cheque and deposited the $6,000 into his personal bank account at the CIBC. This was the substance of the uttering forged document offence he was convicted of (count two on the indictment). [ 7 ] Mr. Kassam worked for Mr. Seif for about a year. I find that during that time, he held himself out to members of the public as a lawyer. He left Mr. Seif’s firm to take on a similar role in a firm called Sunmark Law Professional Corporation, whose principal was Don Han Yang. He lasted there only about a month. He and Mr. Yang had a falling out over what Mr. Yang described as Mr.

Kassam’s lack of trustworthiness. Mr. Kassam then made an agreement to work with another lawyer, Ali Siddiqi, who ran a practice known as Blackstone Law Professional Corporation. [ 8 ] I find that over the course of time that he worked with or for Mr. Seif, Mr. Yang and Mr. Siddiqi, Mr. Kassam held himself out as a lawyer to members of the public. He took retainers and supplemental payments from clients who were under the false impression that he was their lawyer. He attended at least one examination for discovery in a motor vehicle accident case and held himself out counsel.

He attended in criminal court and held himself out to the court as counsel of record. He prepared pleadings identifying himself as counsel and fraudulently used Mr. Seif’s Law Society number as though it were his own. These facts support the conviction for defrauding the public of a sum greater than $5,000 (count five on the indictment). The Circumstances of the Offender [ 9 ] Mr. Kassam is 36 years old. He is the married father of two young boys. A number of letters of support were filed on Mr. Kassam’s behalf.

By all accounts, he is a committed father and husband, hard-working, and a cherished member of his family. [ 10 ] Mr. Kassam represented himself during the trial. I found him to be bright, articulate, professional and courteous at all times. [ 11 ] Mr. Kassam has apparently been studying law at a university in England known as Oxford-Brookes. He has completed some 2 ½ years of study. He wished to defer his sentencing for several months in order to complete his schooling, which request I denied. I am puzzled as to why Mr.

Kassam is attending law school when he already has a Juris Doctor degree from the University of Renfrew, or at least holds himself out as having such a degree. Moreover, the urgency to concluding his schooling is lost on me given the unlikelihood that he will ever be permitted to practice law in the Province of Ontario in light of his criminal record. [ 12 ] Mr. Kassam has an unenviable criminal record, largely for offences of dishonesty. In January 2004 he was convicted of fraud over $5000, uttering a forged document, two counts of possession of property obtained by crime and personation with intent.

In April 2005 he was convicted of fraud under $5,000, uttering a forged document and theft under $5,000. In August 2005 he was convicted of two counts of fraud over $5,000 and two counts of uttering a forged document. In February 2007 he was convicted of making a false statement in relation to a passport. In November 2011 he was convicted of four counts of uttering a forged document as well as one count of false pretences. [ 13 ] Mr. Kassam’s choice of a criminal lifestyle is tragic because, from what I have witnessed, had he pursued his career honestly, he could have been a very competent lawyer.

The Impact of the Offences [ 14 ] Readily apparent is that Mr. Kassam’s fraudulent conduct has impacted a number of people financially. Mr. Seif was clearly deprived of $6,000. His reputation in the community has no doubt suffered as well, which is probably of far greater value. [ 15 ] Other members of the public paid Mr. Kassam varying amounts of money under the pretext that he was a lawyer and would assist them with their legal difficulties. They are out-of-pocket as well. [ 16 ] A number of victim impact statements were filed that detail the financial losses of Mr. Kassam’s victims.

Jessica Mullani lost $25,920, though she recovered $10,000 by way of restitution from another offender involved with Mr. Kassam; David Alvarez lost $6,000, though he recovered $3,200; Adam Seif lost $6,000; and Harry Leung lost $8,000.

The Principles of Sentencing [ 17 ] Section 718(1) of the Criminal Code establishes the fundamental purpose of sentencing: to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence (both general and specific), the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community. [ 18 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered. [ 19 ] There can be little doubt, particularly in light of Mr.

Kassam’s criminal antecedents, that deterrence, both specific and general, denunciation and separating the offender from society are the principles the court must pay particular attention to in this instance. That said, I do not entirely rule out rehabilitation as continuing to play an important role. Despite Mr. Kassam’s obvious affinity for fraud- related conduct, he has the intelligence, skillset and demeanour to be a contributing member of society, if he would only choose to do so.

The Positions of the Parties [ 20 ] The maximum penalty for the offence of fraud over $5,000 is 14 years imprisonment, according to s. 370(1) (

a) of the Criminal Code ; [ 21 ] The maximum penalty for uttering a forged document is 10 years imprisonment, according to s. 368(1.1) of the Criminal Code . [ 22 ] There are no applicable minimum sentences.

[ 23 ] The Crown seeks a penitentiary sentence of 4 to 5 years. Mr. Moull pointed out that the offences here were ongoing over a period of about a year and involved a scheme contrived with his friend, Rahim Mavji, whereby unsuspecting clients would be referred to Mr. Kassam by Mr. Mavji on the pretext that Mr. Kassam was a lawyer. Numerous members of the public were duped out of sizable amounts of money. Particularly aggravating, from the Crown’s perspective, is Mr. Kassam’s criminal record and the fact that these offences were committed while Mr.

Kassam was serving a conditional sentence and/or on probation for prior convictions. [ 24 ] The Crown also seeks a restitution order in favour of the victims of Mr. Kassam’s offences, whom I have mentioned earlier. [ 25 ] Mr. Kassam’s counsel urged the court to be more restrained and recognize that this sentence will be the first time Mr. Kassam has served a sentence in jail. An appropriate step-up in this instance would be, in counsel’s submission, 2- 2 ½ years. The appropriateness of a restitution order is acknowledged, but the ability to pay is of concern.

Defence counsel submitted that $11,100 would be an appropriate sum to order repaid by way of restitution. Discussion [ 26 ] Mr. Kassam needs to stop defrauding people. For reasons best known only to him, it would appear to be his preferential means of doing business. Dishonesty appears to have become a way of life for him. Previous convictions have been met with relatively light sentences ranging from 90 days conditional to two years less a day conditional. Remarkably, Mr. Kassam has been given the benefit of four prior conditional sentences.

In other words, he has been permitted to serve four prior custodial sentences in the community. [ 27 ] I agree with Crown counsel that a jail sentence is required and appropriate in this instance. It is clearly necessitated by Mr. Kassam’s apparent intractability when it comes to offences of dishonesty. [ 28 ] There are numerous aggravating circumstances present here, including: (

a) Obviously, Mr. Kassam’s criminal record; (

b) The index offences were committed over a period of more than one year, across three separate law firms; (

c) They were committed at a time when Mr. Kassam was still serving a conditional sentence and/or when he was on probation for other convictions; (

d) The offences were considered, business transactions. Mr. Kassam has consciously chosen criminal activity over legitimate means of earning a living, presumably because of the possibility of earning more money, quicker and easier. I have found Mr. Kassam to be bright, educated and capable. There is no reason why he could not be successful in a legitimate field, yet for some reason he continues to choose criminality; (

e) Mr. Kassam preyed upon vulnerable individuals who required the assistance of a trusted legal advisor. Though he was not actually a lawyer there is an element of breach of trust to the offences; (

f) There were multiple victims of his fraudulent conduct; and, (

g) Mr. Kassam did not comply with the licensing requirements for lawyers and/or paralegals, which is a statutorily aggravating factor. [ 29 ] Not a great deal was submitted by way of mitigation, save that Mr. Kassam has a young family. [ 30 ] Fraud is an offence that is capable of being committed in so many different ways that it is difficult to pin down an appropriate range of sentence. Sentencing ranges are, in any event, guidelines only and are not fixed or inflexible. [ii] [ 31 ] It is important to recognize that sentencing is an individualized exercise. There is no “one size fits all” sentence.

Trial judges have considerable discretion in fashioning sentences. As former Chief Justice Lamer stated in R. v. M. (C.A. ), [iii] “Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.” What is vitally important, in each case, is to assess the gravity of the offence and the moral blameworthiness of the offender. [ 32 ] In this case, Mr. Kassam was engaged in a lengthy and somewhat sophisticated fraud.

He held himself out as a lawyer and not only deprived members of the public of sizable amounts of money, but also deprived them of competent legal counsel at a time when they were in need of it.

He appears to have been motivated entirely by greed. [ 33 ] The case law is relatively clear that penitentiary sentences are appropriate in cases of sophisticated, large scale frauds involving large sums of money and/or large numbers of victims, particularly where a breach of trust is involved. [iv] [ 34 ] Here, there is an element of breach of trust, but more aggravating are the number of victims involved, and the sophistication and long-term nature of the fraud. Moreover, Mr. Kassam has been convicted now of some 21 offences of dishonesty.

It is clear that lighter sentences have not had their desired deterrent impact. The same can be said of the use of conditional sentences. It is remarkable that conditional sentences have been attempted on four separate occasions. [ 35 ] It is apparent that serving a custodial sentence in the community is neither troublesome nor effective in Mr. Kassam’s case. There is no question but that a step up in the length and nature of sentence is required. The question is how significant a bump up is required to do justice to the offences committed here and bring home the message to Mr.

Kassam (and others) that this type of offence will have serious consequences. [ 36 ] In my view a sentence of three years in the penitentiary will meet the goals of deterrence and denunciation, and at the same

time recognize some restraint in light of the fact that Mr. Kassam has not previously served any sentence in an institution. [37] Mr. Kassam spent 10 days in custody immediately following his arrest and has spent another 16 days in custody since his bailwas revoked. He is entitled to a credit of 39 days for this pre-sentence custody at the rate of 1.5:1. Accordingly, his net sentence will be2 years, 10 months and 21 days. Given that there were convictions on three counts, the sentence will formally be reflected as follows: (

a) On count 5, defrauding the public, Mr. Kassam is sentenced to 3 years in custody, less 39 days credit for pre-sentence custodyfor a net of 2 years, 10 months and 21 days; (

b) On Count 1, defrauding Mr. Seif, Mr. Kassam is sentenced to 1 year in custody, concurrent to counts 2 and 5; and, (

c) On Count 2, uttering a forged document, Mr. Kassam is sentenced to 1 year in custody, concurrent to counts 1 and 5. [38] A restitution order is also appropriate. Mr. Kassam submitted, through his counsel, that he does not have the means to makerestitution. But there is a $10,000 cash deposit that was paid in relation to Mr. Kassam’s recognizance of bail. A further $1,100 wasseized by the police at the time of Mr. Kassam’s arrest. This total, $11,100 shall be directed towards restitution payments. Moreover,Mr.

Kassam has shown an ability to fund an education abroad and to travel back and forth to and from England on a regular basis inrelation to that education. I am satisfied that he has the ability to make restitution in full. Accordingly, he shall make the followingrestitution: (

a) To Jessica Mullani, aka Jessica Mahal: $15,920. There was evidence at trial that Ms. Mullani paid a further sum to Mr.Kassam on account of a friend, but I have no restitution statement from that friend, nor any indication as to what the arrangement wasbetween the parties as to repayment; (

b) To David Alvarez: $2,800; (

c) To Harry Leung: $8,000; and, (

d) To Adam Seif: $6,000. [39] The $11,100 referred to above shall be distributed rateably between Ms. Mullani, Mr. Alvarez, Mr. Leung and Mr. Seif. Boswell J. Date: January 5, 2017 [i] See also R. v. Ferguson, 2008 SCC 6 , [2008] S.C.J. No. 6, paras. 16-18 [ii] R. v. D.D., (ON CA), [2002] O.J. No. 1061 (C.A.) [iii] (SCC), [1996] 1 S.C.R. 500 [iv] See R. v. Dobis (2002) (ON CA), 58 O.R. (3d) 536 (C.A.); R. v. Rosenfeld, 2009 ONCA 307; R. v. Palantzas,[2009] O.J. No. 3862 (S.C.J.); R. v. Gallagher, 2008 ONCA 252; and R. v. Bondok, 2014 ONSC 394.