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Ontario appeal court lengthens jail time in boiler room case

The Ontario Securities Commission, which took the boiler room case to provincial court, appealed the sentencing decision by the court.

Peter Power/The Globe and Mail

An appeal court has ordered a longer jail sentence for an Ontario man accused of running a boiler room operation and selling shares without registration.

Abel Da Silva has been ordered to serve two jail sentences totalling 45 months consecutively – which means he will begin serving the second after the first is completed – rather than serving them concurrently or at the same time as originally ordered.

The appeal ruling by Madam Justice Faye McWatt of the Ontario Superior Court concludes that Mr. Da Silva's two sentences involved unrelated cases and different victims. She said sentencing rules generally require separate consecutive sentences when there are different convictions for crimes committed at different times.

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"A sentence of 45 months in total is not disproportionate to the gravity of the offences and his degree of responsibility for them," Judge McWatt wrote in her decision.

Mr. Da Silva was sentenced in November, 2011, to serve 27 months in jail for running a boiler room fraud in Markham, Ont., and breaching Ontario Securities Commission cease-trade orders. He and Eric O'Brien were accused of making false and misleading statements to investors to sell shares of Shallow Oil and Gas.

Four months later in March, 2012, Mr. Da Silva was sentenced to 18 months in jail for securities violations involving selling securities of Moncasa Capital Corp. in Toronto without registration. He was also convicted of circumventing cease-trade orders by trading under the alias "Jim Wilson."

When the second sentence was imposed, the judge said he could serve the two concurrently, which means he would not have had to serve additional time in jail once the first sentence was completed. But the Ontario Securities Commission, which took the case to provincial court, appealed the decision.

The OSC argued that concurrent sentences would induce people to work in multiple boiler room frauds during the same period, believing they would only serve jail time for one of the offences.

Judge McWatt said Mr. Da Silva "is not new" to the criminal justice system and "has shown a pattern of undeterred behaviour over the courts of several years." She said the fact Mr. Da Silva breached three separate prohibition orders since 2006 "is reason enough to find the concurrent sentence unfit."

Mr. Da Silva received a 75-day jail sentence in 2010 for breaching a 2006 cease-trade order.

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