COURT OF APPEAL FOR ONTARIO
George, Favreau and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Robert Konashewych
Appellant
AND BETWEEN
His Majesty the King
Respondent
and
Adellene Balgobin
Appellant
Michael Lacy and Marcela Ahumada, for the appellant (COA-23-CR-1201), Robert Konashewych
Julianna A. Greenspan and Brad Greenshields, for the appellant (COA-23-CR-1249), Adellene Balgobin
Matthew Asma and Katherine Beaudoin, for the respondent
Heard: November 18, 2025
On appeal from the convictions entered by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, on June 23, 2023, and from the sentence imposed on December 5, 2023.
I. OVERVIEW
1The appellants were convicted of defrauding the estate of Heinz Sommerfeld, an elderly man suffering from dementia who died without a will. Both appellants received a global seven-year penitentiary sentence. Ms. Balgobin was also convicted of breach of trust by a public officer in connection with the duties of her office at the Office of the Public Guardian and Trustee (the “OPGT”), contrary to s. 122 of the Criminal Code, R.S.C. 1985, c. C-46. For this she received a concurrent five-year sentence.
2The OPGT was the guardian of Mr. Sommerfeld’s property and had authority to manage his affairs. Ms. Balgobin, who worked as a Senior Client Representative (“SCR”) at the OPGT and was responsible for managing Mr. Sommerfeld’s affairs, failed to disclose her romantic relationship with Mr. Konashewych, a Toronto police officer, when he produced a will that named him as executor and estate trustee and sole beneficiary of Mr. Sommerfeld’s estate.
3Ms. Balgobin assisted in the probate process by swearing an affidavit attesting to the authenticity of Mr. Sommerfeld’s signature on the will and by corresponding with Mr. Konashewych’s estate lawyers. Mr. Konashewych swore an affidavit in support of his probate application, which included statements about his attempts to locate the two witnesses to the will who never actually existed, including using police databases. None of this activity attracted any suspicion until Mr. Konashewych’s ex-girlfriend, Candice Dixon, opened a letter from a bank containing a Retirement Income Fund (“RIF”) statement addressed to Mr. Konashewych in connection with Mr. Sommerfeld’s estate. She later opened a letter from a lawyer to Mr. Konashewych, which included a statement of account that mentioned Ms. Balgobin. Ms. Dixon believed that Mr. Konashewych was romantically involved with Ms. Balgobin and, after reading the letter, suspected that the two were involved in illegal activity. Ms. Dixon provided the letter to the police, which led to the investigation, charges, convictions, and sentence that are the subject of this appeal.
4The appellants each raise several grounds of appeal. Mr. Konashewych argues that the trial judge: (i) erred in not staying the charges after finding the police violated s. 7 of the Canadian Charter of Rights and Freedoms; (ii) delivered an unbalanced jury charge; (iii) erred in admitting highly prejudicial evidence and by failing to provide the required limiting instruction; (iv) erred in failing to correct Crown counsel’s closing address regarding defence counsel’s cross-examination of Ms. Dixon; and (v) erred by not instructing the jury that a reasonable doubt could arise from the absence of expert evidence. Mr. Konashewych also appeals against sentence.
5Ms. Balgobin argues that the trial judge erred: (i) by admitting evidence about the concealment of her affair with Mr. Konashewych as after-the-fact conduct; (ii) in permitting the Crown to advance its motive theory; and (iii) by delivering an unbalanced charge which, among other things, failed to adequately relate her defence to the jury. Ms. Balgobin appeals against sentence as well.
6The following reasons explain why I would dismiss the appeals against conviction. While I would grant leave to appeal sentence, I would also dismiss the sentence appeals.
II. BACKGROUND
7Ms. Balgobin met Mr. Konashewych while he was on a paid duty assignment at the OPGT in 2014. Even though Mr. Konashewych was in a relationship and living with Ms. Dixon at the time, he and Ms. Balgobin began dating. Ms. Balgobin discussed her relationship with Mr. Konashewych with some of her close OPGT colleagues.
i. Mr. Sommerfeld’s death
8Mr. Sommerfeld had been under OPGT guardianship since October 2008. Ms. Balgobin came to be assigned Mr. Sommerfeld’s file and, on June 20, 2017, she learned of his death. Mr. Sommerfeld had no known will and no known family apart from his younger half-brother, Peter Stelter, whom he had not seen in many years. On the day she learned of Mr. Sommerfeld’s death, Ms. Balgobin requested and obtained access to several of Mr. Sommerfeld’s personal identification documents, which included signatures that initialized part of his full name. These identification documents did not include Mr. Sommerfeld’s SIN card, which contained his full signature. She testified at trial that she followed routine procedures upon a client’s death. She also checked to see if Mr. Sommerfeld was entitled to a German pension. Ms. Balgobin eventually transferred Mr. Sommerfeld’s file to the OPGT’s Trust Reporting Unit (“TRU”) to formally close his file.
9On June 26, 2017, six days after learning of Mr. Sommerfeld’s death, Ms. Balgobin received a voicemail from an individual named “Bob Kay” who claimed that he possessed Mr. Sommerfeld’s will. Ms. Balgobin testified that she immediately recognized the voice as that of Mr. Konashewych. She called Mr. Konashewych, who advised her that he knew Mr. Sommerfeld and that he had located his will, which named him as the executor and estate trustee and sole beneficiary. Ms. Balgobin testified that she was surprised by this unlikely coincidence.
10Notwithstanding the obvious conflict, and despite her supposed concerns about Mr. Konashewych appearing out of the woodwork like this, Ms. Balgobin did not disclose the relationship and continued to be involved in the file.
ii. Mr. Sommerfeld’s half-brother
11Even before his death, there was some indication in the OPGT file that Mr. Sommerfeld had a half-brother, Mr. Stelter. Ms. Balgobin’s evidence was that on June 22, 2017 she was notified that a colleague in the TRU had sent out next-of-kin letters in an attempt to locate Mr. Stelter. That same day, Mr. Stelter spoke to someone from the OPGT on the phone who informed him of his brother’s death. Although Mr. Stelter could not recall the name of the person he spoke to, Ms. Balgobin testified that it was her.
12On July 12, 2017, the OPGT received a copy of the will purporting to have been signed by Mr. Sommerfeld. Ms. Balgobin received an email from a colleague in the TRU about the German pension issue, which also advised that the will had been received.
iii. Incidents involving Ms. Dixon
13Ms. Dixon testified that in October 2017 she learned through her uncle that Mr. Konashewych was having an affair. Her evidence was that her uncle had heard this rumour from a receptionist at a salon. Ms. Dixon confronted Mr. Konashewych, who denied it. Ms. Dixon, accompanied by Mr. Konashewych, then confronted the receptionist at the salon. The receptionist mentioned a woman by the name of “Adellene”. Mr. Konashewych again denied the affair and claimed to not know anyone by that name. Ms. Dixon then searched Mr. Konashewych’s phone where she found Ms. Balgobin’s contact information.
14Soon thereafter, Ms. Dixon and Mr. Konashewych attended the OPGT office. Ms. Balgobin would not come out to the lobby to meet with them, and Ms. Dixon and Mr. Konashewych were eventually asked to leave the premises. According to Ms. Balgobin, Mr. Konashewych had secretly texted her telling her to not come out. Later on, after leaving the OPGT office, Ms. Dixon emailed Ms. Balgobin, expressing shock about the affair rumour and indicating that the salon receptionist seemed to know personal details that “clearly only someone who knows us [i.e., Ms. Dixon and Mr. Konashewych] would know”. Ms. Balgobin replied, advising Ms. Dixon that she had contacted the wrong person.
15A few days later, Ms. Dixon received a voicemail on her phone from Ms. Balgobin. In the message Ms. Balgobin stated that she had a crush on Mr. Konashewych, that she wanted to date him, and that although they were not in a relationship she had told people that they were. Ms. Dixon testified that while she felt relieved that Mr. Konashewych was not having an affair, she was concerned that Ms. Balgobin might be stalking them. Ms. Dixon wanted to make a formal complaint with the police, but Mr. Konashewych discouraged it.
16Mr. Konashewych later showed Ms. Dixon a photograph of someone he said was Ms. Balgobin. The photo Mr. Konashewych showed her was not of Ms. Balgobin, but of one of Ms. Balgobin’s OPGT colleagues. Mr. Konashewych and Ms. Balgobin arranged to have a cease and desist letter served on Ms. Balgobin.
iv. Estate is distributed to Mr. Konashewych
17On April 20, 2018, Mr. Konashewych’s lawyer filed an application for probate in the Superior Court of Justice. On June 8, 2018, court officials advised that the application could not be processed as they required an affidavit from a third party attesting to the signature of the deceased on the will. On June 15, 2018, Ms. Balgobin swore an affidavit, as a third party unconnected to the application, attesting to Mr. Sommerfeld’s signature. The Certificate of Appointment of Estate Trustee was issued on July 4, 2018, and $834,351.55 was eventually transferred into Mr. Konashewych’s bank account.
v. The Sherway Gardens incident
18On December 12, 2018, while at the Sherway Gardens mall, Ms. Dixon saw Mr. Konashewych walking with a woman she believed to be Ms. Balgobin, although she did not look like the woman in the photo she had been shown. Ms. Dixon testified that this woman gave her a “dirty look” and then quickly left Mr. Konashewych’s side. Ms. Dixon waited in the parking lot and confronted her outside the mall, but the woman, after refusing to acknowledge that she was “Adellene”, ran away. Mr. Konashewych tried to assure Ms. Dixon that the woman at the mall was not Ms. Balgobin. At trial, Ms. Balgobin testified that it was her.
vi. Discovery of the fraud and ensuing police investigation
19In November 2018, shortly before the Sherway Gardens incident, Mr. Konashewych moved out of the penthouse he shared with Ms. Dixon. Ms. Dixon hired a lawyer to assist her with the separation. Although Mr. Konashewych had moved out, his mail continued to be delivered to Ms. Dixon’s address. Ms. Dixon testified that, on December 26, 2018, she inadvertently opened an envelope from a bank before noticing that it was addressed to the “Estate of Heinz S Sommerfeld c/o Robert Paul Konashewych”. The envelope contained a RIF statement. When confronted, Mr. Konashewych told Ms. Dixon that this must have been sent in error. On January 25, 2019, Ms. Dixon opened another envelope addressed to the “Estate of Heinz Siegfried Sommerfeld c/o Robert Konashewych”, this time from Hrycyna Law Professional Corporation (the “Hrycyna letter”). This letter sought payment of outstanding fees for the Sommerfeld estate matter and attached a statement of account. The statement of account referred to Ms. Balgobin.
20Using the information in that correspondence, Ms. Dixon’s family law lawyer obtained the Sommerfeld estate Superior Court file. This is how Ms. Dixon learned that Mr. Konashewych had inherited a significant amount of money from Mr. Sommerfeld’s estate. On March 6, 2019, Ms. Dixon reported her suspicions to Detective Constable Kelly and Detective Regan of the Toronto Police Service. Ms. Dixon provided the police with copies of Mr. Konashewych’s opened mail (including the Hrycyna letter), personal belongings found in a shared storage locker, and parts of the estate file obtained from the court office. Mr. Konashewych and Ms. Balgobin were arrested in December 2019.
21Ms. Dixon’s evidence was that she had never heard Mr. Konashewych talk about Mr. Sommerfeld or his will.
III. THE TRIAL
22The jury convicted both appellants of fraud, and Ms. Balgobin was convicted of an additional count of breach of trust by a public officer. As mentioned, each received a global sentence of seven years in the penitentiary. The total amount of the fraud was $834,351.55.
23The main issue at trial was whether the appellants knew that the will purporting to be Mr. Sommerfeld’s was fabricated. As the trial judge stated in his charge to the jury: “The status of the will that is alleged to be a fabricated one and the state of knowledge of the [appellants] is the central point that you shall have to consider carefully and decide.”
i. The voir dire
24The appellants sought to exclude details of the various events by which Ms. Dixon learned of the affair between Mr. Konashewych and Ms. Balgobin, including the confrontation at the OPGT, the encounter at Sherway Gardens mall, and the discovery of greeting cards by Ms. Dixon in the shared storage locker. The trial judge denied the request, concluding that details from these incidents were “unquestionably relevant” as they fell into a category of circumstantial evidence “concerning actions taken or statements made after the actions constituting the charged offence took place.” According to the trial judge, the appellants’ efforts to conceal their relationship was relevant to the Crown’s theory that their primary purpose was to keep Ms. Dixon and others from connecting the dots and discovering the fraud. He concluded further that these details added only “some additional risk of prejudicial impact”, which could be addressed with a jury instruction.
ii. The Charter ruling
25Mr. Konashewych sought a stay of proceedings. He argued that the police breached his rights under s. 7 of the Charter by receiving and using the Hrycyna letter provided by Ms. Dixon, which was subject to solicitor-client privilege. Mr. Konashewych also alleged a s. 8 Charter breacharising from the police receiving the two letters that had been opened by Ms. Dixon and the personal belongings discovered in the shared storage locker. Ms. Balgobin was not a party to this application.
26The trial judge dismissed the application. With respect to s. 8 of the Charter, he concluded that there was no “search” or “seizure”, as the police were entitled to receive and review the documents brought by Ms. Dixon, and there was no seizure by police “simply because police confirmed the self-evident intent of Ms. [Dixon] to leave the documents with them.”
27With respect to the Hrycyna letter, the trial judge found a s. 7 breach. In his reasons, the trial judge stated that “both detectives had enough before them to know at the very least that there was an issue of solicitor-client privilege raised by taking that document into their possession”. However, the trial judge ultimately concluded that, although s. 7 was violated, this was not the “clearest of cases” warranting a stay under s. 24(1) of the Charter. In the trial judge’s view, the privileged letter “played virtually no role in the police investigation”, and “its excision would have [had] no impact on the warrant and production orders [that were] obtained”. He found that the “inadvertent or even sloppy” handling of the letter by the police did not offend societal norms of fair play and decency and did not undermine the integrity of the justice system.
28The trial judge accepted Ms. Dixon’s evidence that she did not deliberately open the Hrycyna letter, and that she assumed the letter was addressed to her without inspecting the envelope closely. The trial judge also accepted that the officers did not have “wilful intent to subvert [Mr. Konashewych’s] constitutional rights”.
29The trial judge determined that the Hrycyna letter could not be introduced into evidence unless privilege was waived.
IV. DISCUSSION
30I turn now to the appellants’ grounds of appeal, identified above. I will address first the grounds raised by each appellant individually. I will then address what I find to be the two main grounds of appeal advanced by them both: (i) that the trial judge erred by admitting prejudicial “concealment” evidence; and (ii) that he delivered an unbalanced jury charge. I will conclude by addressing the appellants’ appeals against sentence.
i. The trial judge did not err by declining to stay the proceedings
31Mr. Konashewych argues that the trial judge’s conclusion that the police did not wilfully intend to subvert his rights is not sustainable on any objective view of the record, and that he therefore erred in not staying the proceedings pursuant to s. 24(1) of the Charter.
32Mr. Konashewych submits that the record objectively reveals that (i) the police knew the Hrycyna letter was presumptively privileged; (ii) the police knew that Mr. Konashewych’s lawyer had expressly claimed privilege over the Hrycyna letter in 2019; (iii) the police lied to the Crown and to the court under oath by saying that the first time any lawyer had expressly claimed privilege over the Hrycyna letter was in the context of the Charter application in 2023; (iv) even after becoming aware that there was an expressed claim of privilege over the Hrycyna letter, the police failed to take any steps to get legal advice; (v) the police officers lied to the court when they testified that had they known there was a privilege claim they would have taken steps to at least get legal advice; and (vi) one of the detectives counselled Ms. Dixon to not comply with a court order demanding a list of those to whom the Hrycyna letter had been disclosed. According to Mr. Konashewych, the trial judge must have either misapprehended the police testimony or failed to give it proper effect. In his view, the conclusion that the police acted in good faith is clearly wrong, unreasonable, and not supported by the evidence.
33I am unpersuaded by this submission.
34The parties agree that the police breached solicitor-client privilege by reading and failing to seal the Hrycyna letter after receiving it from Ms. Dixon. However, that, in and of itself, did not warrant a stay of proceedings. The trial judge’s careful review of the circumstances surrounding how this material came into the hands of the police, and what use was ultimately made of it, demonstrates that the investigation gained little to no advantage from it and that, consequently, as the trial judge concluded, the breach was on the very low end of the spectrum of seriousness and not one of the “clearest of cases” demanding a stay: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68.
35Section 24(1) of the Charter provides that anyone whose rights or freedoms were infringed or denied “may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances” (emphasis added). Whether to grant a remedy under s. 24(1), and the choice of remedy, should be disturbed on appeal “only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice”: R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 17; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117.
36A stay of proceedings is a remedy of last resort: Regan, at para. 53. It is only available where there is prejudice to the accused’s right to a fair trial or to the integrity of the justice system and where no other remedy is reasonably capable of redressing that prejudice: Regan, at para. 54; R. v. Brunelle, 2024 SCC 3, at paras. 112-14.
37I appreciate that preventing the Crown from using the privileged Hrycyna letter at trial may seem like a hollow remedy, given that it could not have been used in any event. But declaring the breach and preventing further use was well within the trial judge’s discretion. In fact, this was likely the only available remedy given the trial judge’s findings that trial fairness was not compromised and that the police did not act with wilful intent to subvert Mr. Konashewych’s constitutional rights.
38There is no basis to disturb the trial judge’s conclusion that this was not one of the clearest of cases warranting a stay. Accordingly, I would reject this ground of appeal.
ii. The trial judge did not err in declining to correct the Crown’s jury address
39During their closing address to the jury, Crown counsel discussed how the alleged fraud was discovered. In doing so, and while commenting on Ms. Dixon’s evidence and credibility, Crown counsel said this:
Now, I just want to pause here to say something briefly about Candice Dixon’s credibility. Now, no one disputes the broad outlines of her testimony, the steps in the cover up I just reviewed. Now, there may be some differences about the details and certainly the parties differ on what you can interpret from these events. And certainly, people can make their own judgments about things Candice Dixon has done or said or posted on social media. And you heard the defence vociferously attack her character in cross-examination and you heard her explanations for her actions and her statements. But at the risk of being glib, what does it matter? We are not here to judge people’s personalities. We are here to get at the truth. And no one in this trial, I submit to you, despite attacking Ms. Dixon’s character, disputed the main features of what she said. [Emphasis added.]
40Mr. Konashewych submits that it was unfair to characterize defence counsel’s cross-examination of Ms. Dixon as an attack on her character and that a corrective instruction was therefore required.
41I disagree. The Crown’s comment above did not imply impropriety in the defence cross-examination of Ms. Dixon and was well within the bounds of fair advocacy.
42During cross-examination, counsel for Mr. Konashewych asked Ms. Dixon about a racist joke she had made about Ms. Balgobin. The jury also heard that Ms. Dixon had described Ms. Balgobin in other demeaning and racist ways. Mr. Konashewych’s counsel, who went first, did not address this in their closing address. Ms. Balgobin’s counsel did not address this directly but did characterize the Crown’s cross-examination of Ms. Balgobin as “spiteful”, “aggressive” and “dismissive”. Ms. Balgobin’s counsel also variously described Ms. Dixon as “explosive and jealous and vengeful”, “scary”, “enraged”, and as someone who “[would] not stop”, and concluded by reminding the jury of her racist remarks.
43The Crown, who closed last, made submissions about Ms. Dixon, including the impugned comment above. The goal was clearly to convince the jury that, notwithstanding Ms. Dixon’s offensive remarks, she had testified truthfully and was credible. After defence counsel asked the trial judge whether he was going to say anything to the jury about the claim that defence counsel had attacked Ms. Dixon’s character, the trial judge declined to do so, explaining that “I’m staying above that and out of that. I’m not commenting on anyone’s presentation in any way, in a negative or a positive way, at all.”
44It made good sense for the trial judge to stay above the fray on this. Given the context, there was no risk that the jury might overreact to the Crown’s submission. Moreover, at other points in his charge, the trial judge made it clear that the jury had to base their decision on a “rational and fair consideration of all the evidence and not on passion or sympathy or prejudice against the accused, the Crown, or anyone else connected with this case”. He also told the jury that they were to confront their own unconscious biases and “[r]esist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.”
45I would therefore reject this ground of appeal.
iii. The trial judge was not required to instruct the jury that a reasonable doubt could arise from the absence of expert evidence
46Mr. Konashewych argues that the absence of expert evidence about the legitimacy of the will was a critical gap in the Crown’s case and that the failure to lead direct evidence about the authenticity of the signatures on the will was fatal to the prosecution. He submits that, given the centrality of the will, the jury should have been expressly alerted to the absence of expert evidence on fabrication as an illustration of how the absence of evidence could raise a reasonable doubt.
47He submits further that the failure to provide this instruction was exacerbated by this aspect of the trial judge’s final instructions to the jury:
You have heard discussion about witnesses who were not called. You cannot speculate about the evidence of witnesses who were not called and from whom you have not heard. You cannot speculate about what they would have said, nor can you infer that the evidence of this or that witness would be unfavourable to one side or the other. Bear in mind as well that there may be any number of reasons for not calling a witness and it is open to any party to the proceeding to call a particular witness. But also remember that the burden of the Crown to prove the charges beyond a reasonable doubt remains with the Crown throughout and I would refer you to my directions about reasonable doubt and the presumption of innocence.
48This, in Mr. Konashewych’s view, undermined the fact that the absence of evidence could raise a reasonable doubt, especially when the Crown’s case was circumstantial and the absence of evidence went to the core of the prosecution theory. Put another way, this instruction left the jury with the impression that a critical gap in the Crown’s case (i.e., the absence of evidence about the legitimacy of the will) was unimportant and incapable of raising a reasonable doubt.
49In my view, the trial judge was not required to specifically alert the jury to the absence of expert evidence regarding the will’s legitimacy with an express instruction.
50While this was not tied directly to the absence of expert evidence, the jury was told that the absence of evidence could give rise to a reasonable doubt. Specifically, at the beginning of the charge the trial judge stated that “the absence of evidence may be a factor in your deliberations where a reasonable doubt arises about an essential element of a charged offence that the evidence before you does not address to your satisfaction.” He then stated that the standard of proof beyond a reasonable doubt “arises logically from the evidence or from an absence of evidence” and that if “the absence of evidence on a matter raises a reasonable doubt as to the guilt of Mr. Konashewych or Ms. Balgobin, you must acquit him or her of that offence.”
51Furthermore, Mr. Konashewych’s counsel submitted to the jury that “the failure of the Crown to call any expert evidence in relation to the authenticity of the will is properly considered by you in assessing whether the absence of such evidence raises a reasonable doubt.” Ms. Balgobin’s counsel similarly noted that “[w]hat you can infer from the absence of an expert in the Crown’s case is that no expert could provide evidence that this was not indeed the signature of Mr. Heinz Sommerfeld. That is reasonable doubt.”
52In my view, the combination of the trial judge’s general instruction on the absence of evidence and defence counsel’s forceful submission that, on the facts of this case, the absence of expert evidence should give rise to a reasonable doubt, was sufficient.
53The critical distinction between this case and others where such an instruction would be warranted is that expert evidence was not required to establish fabrication. The Crown’s position on appeal is that there was compelling evidence that “the will was falsified because there was ‘not a single shred of evidence’ that either of the witnesses to the will ever existed.”
54There were no Canadian passport records for either of the will’s witnesses from 2001 onwards.1 And there were no social insurance numbers for the witnesses in Service Canada’s Social Insurance Registry. Not to mention the fact that, even though Mr. Sommerfeld had been in its care since 2008, no one at the OPGT was even aware of this will until Mr. Konashewych came forward nine years later. While it was open to the jury to reject the evidence that was proffered and to accept the defence argument that expert evidence was required in the circumstances of this case, this type of evidence was not required as a matter of law.
55Furthermore, the lack of expert evidence was not the sole evidentiary foundation of either defence. Mr. Konashewych’s defence rested primarily on the affidavit he filed as part of the probate application, in which he deposed that he knew Mr. Sommerfeld and that Mr. Sommerfeld gave him the will but that he had no information about the witnesses or the circumstances around the execution of the will. And Ms. Balgobin’s defence was that she neither conspired nor was part of any plan to defraud Mr. Sommerfeld’s estate and that, besides her non-disclosure of the conflict of interest, she acted in the ordinary course of her duties.
56But again, the Crown was not required to tender expert evidence to prove the point it sought to establish, which is that the signatures were fraudulently affixed to the purported will.
57I would therefore reject this ground of appeal.
iv. The trial judge did not err in permitting the Crown’s motive theory as against Ms. Balgobin to be put to the jury
58Ms. Balgobin submits that the trial judge erred by charging the jury in accordance with the Crown’s motive theory. The trial judge summarized the Crown’s position with respect to Ms. Balgobin’s motive as follows:
The Crown alleges that Ms. Balgobin’s motive for assisting Mr. Konashewych in claiming and receiving the proceeds of the Sommerfeld estate plus her love for Mr. Konashewych and her desire that he should end his relationship with Ms. Dixon and move in with her coupled with her belief that Mr. Konashewych had financial problems that stood in the way of him leaving Ms. Dixon and moving in with her as she wished.
59On appeal, Ms. Balgobin argues that this “motive was nothing more than an unfounded and therefore speculative behavioural assumption, that a woman desperate to be loved would commit a serious crime for a man.” Apart from the concern that this motive would invite the jury to rely on misogynistic stereotypes and gender-based generalizations or assumptions, which I will address in a moment, the trial judge believed there was an evidentiary foundation for such a motive instruction.
60The trial judge highlighted some of that evidence for the jury, including testimony from Ms. Balgobin’s colleague at the OPGT about conversations they had about her relationship with Mr. Konashewych, and a text message in which Ms. Balgobin wrote that she expected Mr. Konashewych to leave Ms. Dixon in “six months” to move in with her. As such, while it was open to the jury to accept Ms. Balgobin’s denial that money was an obstacle to her and Mr. Konashewych being together, and that she was joking when she texted her colleague, it was equally open to the jury to accept Ms. Balgobin was motivated to assist Mr. Konashewych so that he could financially free himself from Ms. Dixon.
61To the argument that, even if there was an evidentiary foundation to support this motive, it was too prejudicial, the trial judge explained to counsel that:
It is not my task to weigh the evidence and I have curated the evidence to a degree without any reference to anything stereotypical, misogynistic, or cartoonish. It is a fairly straightforward statement both of the proposed motive and of the evidence in support of it and the evidence that might tend to detract from it and that is what I perceive my task to be at this point. The jury will do the weighing.
62To address the concern that Ms. Balgobin now raises, the trial judge directed the jury to “[r]esist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.” In any event, as the Crown points out, that a particular conclusion would assist the prosecution is not the type of prejudice contemplated in situations like these. And to the extent this motive might have been prejudicial, the trial judge’s cautionary instruction was sufficient.
63I would therefore reject this ground of appeal.
v. The trial judge did not err in admitting evidence that the appellants attempted to conceal their affair
a. The nature of the evidence and the trial judge’s approach to it
64Both appellants argue that the trial judge erred in admitting irrelevant and prejudicial evidence, namely the steps they took to conceal their affair. They argue in the alternative that if the evidence was properly admitted the trial judge’s instructions to the jury did not adequately address the risk that they would use it for an improper purpose.
65I will begin this discussion by setting out how this issue arose at trial. During their opening address to the jury, the Crown advised that they would hear evidence from Ms. Dixon, who would testify about Mr. Konashewych’s denials of his affair with Ms. Balgobin and “some of the lengths he took to conceal it”. The day following this opening address, the defence moved to exclude the introduction of this evidence.
66Counsel for Mr. Konashewych argued that the concealment evidence was irrelevant as it had “nothing to do with whether [Mr. Konashewych is] guilty of fraud.” He objected specifically to the Crown’s suggestion that “extreme steps” were taken to conceal the affair from Ms. Dixon, arguing that there was no “baseline as to what is normal” concealment “unless of course you presume that what was happening here was to conceal a fraud versus a relationship.” Mr. Konashewych’s counsel conceded that “some aspect of the failure to disclose the affair was admissible as narrative” but that its marginal probative value was substantially outweighed by its prejudicial impact, including the risk of moral and reasoning prejudice.
67Counsel for Ms. Balgobin shared her colleague’s view, echoing criticism of the Crown’s “extreme steps” thesis. Counsel reasoned that to accept this theory would be to accept that there is some “normal” way to lie about an affair. Ms. Balgobin’s counsel focused on the voicemail Ms. Balgobin left Ms. Dixon, which included a denial of the affair, arguing that while the bare fact of the denial was admissible, her demeanour as captured on the voicemail “offer[ed] no relevant evidence” and risked the jury reasoning that, as a person who would lie to that extent, she must have engaged in other fraudulent behaviour. Ms. Balgobin’s bottom-line position was that the jury should not hear the voicemail and that no instruction could temper the prejudice were it introduced.
68The Crown’s position was that Ms. Dixon’s evidence “is obviously relevant for narrative. That’s actually not the most important part of her evidence. And the timing is critical to understand” given that “all the lies about the relationship [that the Crown sought] to lead happen[ed] after or during the fraud [was] already in motion.” In the Crown’s view, these were not routine lies and, with respect to Ms. Balgobin’s voicemail specifically, it was important for the jury to understand the lengths to which she went to cast herself as a stalker. Ms. Balgobin’s “feigned demeanour”, as the Crown put it, allowed for an inference that the voicemail was a coordinated attempt to both conceal the affair and the fraud on Mr. Sommerfeld’s estate.
69The Crown recognized that the concealment evidence constituted both discreditable conduct and after-the-fact conduct evidence. While they acknowledged the risk of prejudice, Crown counsel submitted that this was not a great danger in this case and that a jury instruction would suffice.
70During the voir dire, the trial judge expressed confusion about what exactly the defence was seeking to have excluded. Mr. Konashewych’s counsel then prepared and provided to the court a document which set out four admissions of fact, three concessions that some specific evidence was admissible, and ten pieces of evidence they thought should be excluded, including the confrontations at the salon and OPGT office, the above-mentioned voicemail, and the Sherway Gardens mall incident.
71In his reasons explaining why he was admitting the concealment evidence, the trial judge identified the evidence the defence sought to exclude as the confrontation at the OPGT office, the incident at Sherway Gardens mall, and greeting cards from Ms. Balgobin to Mr. Konashewych which Ms. Dixon found in their shared storage locker. He did not advert to the salon confrontation or to Ms. Balgobin’s voicemail to Ms. Dixon. He stated that the proposed evidence was “unquestionably relevant” and that, while there was a risk of prejudice, it could be “adequately mitigated by proper limiting charges”, including a complete anti-bias instruction, a more specific instruction that the jury set aside their moral views about the appellants’ conduct, and a direction that they use the evidence for only the limited purpose described.
72After a lengthy pre-charge discussion about how to address this evidence – which included a defence request for a ‘no probative value’ instruction – the trial judge decided to, and did, instruct the jury as follows:
You heard evidence at the trial that Mr. Konashewych may have been unfaithful or untruthful to Ms. Dixon or Ms. Balgobin at different points in time about the existence or status of his relationship with the other. As well as an instance where Ms. Balgobin mischaracterized her relationship in a phone message to Ms. Dixon. You will of course appreciate that it is your duty as jurors to set aside any feelings you may have about such conduct which are irrelevant to your assessment of the evidence. You must take care to ensure you do not consciously or unconsciously find yourself inferring that Mr. Konashewych or Ms. Balgobin is of bad character and the type of person to have engaged in the conduct charged because of this type of evidence. Recall the anti-bias instruction I gave you at the outset of this trial. Remember the importance of being alive to the existence of bias and using the tools of self-reflection and discussion with your fellow jurors who have diverse life experiences to help ensure that you don’t fall prey to this type of impermissible reasoning.
73The trial judge also strongly warned the jury against using any statement they found was made by one accused, against the other. This was included in the part of the jury charge titled “Out-of-Court Statements of Accused”, which, together with his instruction on after-the-fact conduct and anti-bias, formed the section that explained the rules of evidence. This warning included specific reference to witnesses who testified that one or the other accused made certain statements:
As you know, we are conducting a joint trial and each accused person has been charged in relation to separate and distinct actions they are alleged to have undertaken. It is important that you realize that any statement you find Ms. Balgobin made out-of-court after considering the evidence of other witnesses may only be considered by you in relation to the charge against her and not as evidence in relation to Mr. Konashewych. Similarly, any statement you find Mr. Konashewych made out-of-court based on the evidence of other witnesses can only be considered by you in relation to the charge against him and not as evidence in relation to Ms. Balgobin.
By way of reminder, this direction applies to the evidence of [Ms. Balgobin’s former OPGT colleagues], of conversations with Ms. Balgobin and it applies to the evidence of Ms. Dixon, and Mr. Stelter, regarding conversations with Mr. Konashewych.
74The trial judge told the jury that after-the-fact conduct was circumstantial evidence and instructed them to consider what inferences, if any, to draw from it. While the jury could use it as circumstantial evidence that either accused committed the crimes alleged, he cautioned them “not to use it to infer that he or she is the type of person who would do such [a] thing.” He also provided a Villaroman instruction2 in relation to this evidence, and an instruction as follows:
When considering what inference if any to draw from this category of evidence, keep in mind that people may have reactions for entirely different reasons including defensiveness, embarrassment, or other reasons not consistent with guilt of the offence charged. Consider the explanations of these events that you have heard from the witnesses, it’s for you to decide whether the actions and questions relate to the charge you are considering or to something else.
b. Legal principles
75A trial judge’s determination that evidence is relevant – i.e., that it has some tendency as a matter of logic and human experience to make a fact in issue more or less probable, in light of all the other evidence – is a question of law reviewable on the standard of correctness: R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at paras. 38-41, 45. However, judicial balancing of the probative value and prejudicial effect of evidence, including decisions about whether a limiting instruction can mitigate prejudice, is a discretionary decision entitled to deference: Schneider, at para. 62.
76With respect to the prejudice that arises from discreditable conduct evidence, a trial judge should consider not only the potential for moral or reasoning prejudice but also “any factors that might reduce the impact of prejudice in the specific circumstances of the case”: R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at para. 30, leave to appeal refused, [2022] S.C.C.A. No. 220. The risk of prejudice is lower when the discreditable conduct “unfolds as part of the story” than when it relates to the accused’s behaviour in contexts removed from the charged offences: R. v. Joles, 2022 ONCA 681, at para. 10. A trial judge’s determination that the probative value of discreditable conduct evidence exceeds its prejudicial effect is owed significant deference. Appellate courts will intervene only where this balancing reflects an error of law or a misapprehension of evidence or yields an unreasonable result: R. v. Amin, 2024 ONCA 237, 171 O.R. (3d) 561, at para. 33.
77After-the-fact conduct evidence, like any evidence, is “admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on her exposition of these legal principles). Where this type of evidence is not relevant to a live issue, “it must be excluded or the jury should be instructed that [it has] no probative value”: Calnen, at para. 109. Evidence of after-the-fact conduct may ground a range of reasonable inferences, some pointing to culpability and others pointing to lesser culpability or even innocence; it is for the trier of fact to choose “which inferences they accept and the weight they ascribe to them”: Calnen, at para. 112. Lastly, trial judges should expressly state to the jury the potential inferences arising from the after-the-fact conduct evidence and explain the chain of reasoning that supports those inferences: Calnen, at para. 113. A specific caution about this type of evidence should be provided when judicial experience suggests the jury may assign more weight to it than it warrants: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 60.
c. Application of the legal principles
78In my view, in addition to being admissible as narrative, the totality of the concealment evidence in question was relevant to the live issue of the appellants’ knowledge that the will was fabricated.
79That said, I do find the trial judge’s “hindsight reasoning” justifying admission to be a bit concerning. The trial judge reasoned that the concealment evidence was relevant because it was not the discovery of the affair alone by Ms. Dixon that led to the charges before the court but rather Ms. Dixon learning about Mr. Konashewych’s inheritance from an estate in which the OPGT, and specifically Ms. Balgobin, were involved that “caused the penny to drop leading to the private investigation undertaken by Ms. Candice Dixon and her family lawyer which in turn led to the police investigation being undertaken.” In the trial judge’s view, this allowed for an inference that the appellants were hiding more than just the affair when they engaged in the acts of concealment at issue. This reasoning assumes that what Ms. Dixon learned from the Hrycyna letter, and was then able to piece together, tends to establish the appellants’ guilt all on its own, which sits uneasily with the presumption of innocence.
80However, in my view, it is the specific nature of the concealment evidence at issue that establishes its relevance in the context of the record as a whole and the principal live issue at trial: White, at para. 42. That being the case, the Crown’s characterization of the concealment evidence as “extreme steps” is not as troubling as it may seem at first blush, and supports a finding of relevance in this case. Accordingly, and as the trial judge concluded, it was for the jury to assess and decide which of the competing inferences from this evidence to accept – i.e., were the appellants only attempting to hide their affair, or were they attempting to hide both the affair and the fraud? As I explain below, the specific nature of the concealment evidence provided some basis to find that these inferences were not “equally consistent” to the point of stripping the evidence of any relevance. At the end of the day, it was for the jury to decide what inference to draw from this evidence, if they were going to draw any inference at all.
81The Crown’s “extreme steps” thesis does indeed suggest some normal or baseline range of behaviour by someone who is attempting to hide an affair, but this is not stereotypical reasoning as we understand it under our law. That is, those who are unfaithful to their romantic partners are not a demographic vulnerable to discrimination on any basis analogous to, for example, race, gender, disability, or religion: see e.g., R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385.
82Nor would I find the behavioural assumption implicit in the “extreme steps” framing to be palpably wrong, at least not in the context of this case. As the Crown points out, Kruk instructs that triers of fact are entitled to reason “about how people generally tend to behave” (emphasis in original): at para. 72. It was open to the trial judge to conclude that the acts of concealment were significant acts of deceit that went beyond ‘normal’ denials of an affair. It is of course natural for someone to take steps to conceal their affair, but logic, common sense, and human experience would tell us that people generally do not join with their partner (whom they are attempting to deceive) to investigate and confront the person with whom they are having an affair, which Mr. Konashewych did. And common sense and human experience would also tell us that one would not, as Ms. Balgobin did, deny having an affair by calling their boyfriend’s common law partner to assure her that she was only telling others, falsely, that they were in a relationship and to admit to stalking behaviour.
83This conduct was disproportionate if the appellants’ intent was to conceal an affair, and a trier of fact could reasonably consider it to be more consistent with concealing criminality. I acknowledge that each part of the concealment evidence, taken alone, would not have much probative value on the issue of knowledge that the will was fabricated. However, when considered all together this evidence had considerable probative value on the issue of knowledge. The trial judge did not err in finding this evidence to be probative and relevant.
84Nor do I see any error in the trial judge’s balancing of probative value and prejudicial effect. He properly assessed the probative value of the concealment evidence and clearly apprehended its prejudicial effect, taking note that this conduct was not far removed from the facts underlying the offences charged and that an affair today does not attract the same level of social opprobrium that it may have in the past. The trial judge did not err in finding that a ‘no probative value’ instruction was unnecessary.
85I turn now to the appellants’ submission that, if there was not going to be a ‘no probative value’ instruction in respect of the concealment evidence, the trial judge needed to provide a different and better limiting instruction as to its permissible uses.
86In my view, the instructions served their function by sufficiently equipping the jury to decide the case in accordance with the law and evidence. The trial judge’s final instruction on discreditable conduct avoided casting the concealment evidence as anything other than one ingredient for their consideration in deciding whether the appellants knew that the will was fabricated. It also specifically warned the jury against inferring guilt from this evidence. And when you couple that with the earlier anti-bias instruction, the jury would have understood the improper reasoning path and would have known to avoid it. Defence counsel for Mr. Konashewych argued that a stronger instruction was required, but it is difficult to see how the trial judge could have done that short of adding needless rhetorical superlatives (e.g., that it would be “extremely unfair” to use the concealment evidence for an improper purpose). In any event, at the pre-charge conference Mr. Konashewych’s counsel expressly asked for the “classic limiting instruction”, which was ultimately given.
87I will conclude this discussion by pointing out that the trial judge’s charge on discreditable conduct avoided drawing the jury’s attention to the details of the concealment evidence which, had he done so, would have risked magnifying its potential for prejudice.
88I therefore reject this ground of appeal.
vi. The jury charge was not unbalanced
a. The appellants’ arguments
89The appellants claim that the jury charge was, on the whole, unbalanced in that it unduly promoted the Crown’s case, effectively directing the jury to convict. After setting out some of the precharge discussions, I will address the appellants’ general complaints of imbalance in the jury charge before turning to the six specific complaints they stressed most in their submissions before this court.
b. The precharge conference
90It is important to begin this discussion by detailing how the precharge conference unfolded. The trial judge held a precharge conference with counsel to discuss his draft jury charge on June 19, 2023. The precharge conference began with a discussion of how the trial judge proposed setting out the chronology of events for the jury. This was followed by a discussion of the charge proper with counsel registering strong complaints about the overall thrust of the jury charge. These complaints mirror the appellants’ general claims of imbalance on appeal. Counsel continued providing input on successive drafts of the jury charge intermittently over the course of the next three days, as they made their way through their closing addresses and even after the trial judge began delivering his charge. These discussions intensified just before they concluded on the morning of June 22.
91On June 19, counsel for Mr. Konashewych initiated the following exchange with the trial judge:
Counsel for Mr. Konashewych: In my submission, the manner in which Your Honour has reviewed the evidence has inappropriately put your thumb on the scale in favour of a conviction, and I have serious concerns about it. I’ve given examples of where you’ve summarized the evidence to point towards guilt without, in our submission, giving a fair and balanced summary of the evidence. And I’m very concerned that the charge in its current form is more like a direction to convict as opposed to a fair and objective assessment of the evidence.
The Court: All right. Well, I mean, we’re here to make sure it’s balanced, but I can’t create … things out of whole cloth, I have to refer to the evidence that I’ve got, not the evidence that I don’t have. So….
Counsel for Mr. Konashewych: Well, I’ve given you reference to evidence Your Honour.
The Court: All right.
Counsel for Ms. Balgobin: And Your Honour, I join in that, and I did not write anything out, but I have a number of submissions with respect to that very same issue with regarding to Ms. Balgobin.
The Court: Okay. Let’s see where we can get to here.
92On June 22, with the trial judge about halfway through his jury charge, Ms. Balgobin’s counsel made similar general complaints:
Then when – then, Your Honour with the greatest respect, you’re direct[ing] the jury to convict. You are failing to put in pieces of evidence – I’m sorry, but I will make a general comment right now, you do not do a rendition of [Ms. Balgobin’s] evidence that she gave before this court, there’s virtually nothing of what she said except tiny little pieces. And so, there is a skewed version of what the evidence is.
No, but I – I’m sorry. I’m getting [the draft of the jury charge] now at this point at a late time, this is […] the accused’s evidence before the court, and it’s not being fairly put into this charge at all. And there are aspects that are very important that are missing, and I need to identify that on the record.
[Ms. Balgobin] is on trial right now, and you are about to charge this jury. We have this now at this very last minute. Sorry, but if the jury has to wait for the sake of fairness, then I’m asking this court to accept that.
93Moments before the trial judge recalled the jury to finish his instructions, Mr. Konashewych’s counsel rose again to say this:
Overall Your Honour, as I appreciate you’ve made efforts to include aspects of the evidence that we’ve asked you to include from time to time, and you’ve made rulings with respect to other matters, when from our perspective, when we read the charge as a whole on behalf of Mr. Konashewych, it does not adequately relate the evidence to the position of the defence. And I know Your Honour’s considered our submissions in that regard, and this is where you’ve come to in terms of your conclusions, but I just wanted to make that quick [sic].
94This exchange came to an end with the trial judge saying: “All right. Thank you”. He then continued charging the jury.
95The appellants take issue with the overall tenor of the jury charge and with the trial judge’s refusal to include several of their proposed changes.
c. Applicable legal principles
96Appellate assessment of jury instructions requires a functional approach that considers the charge as a whole and in the context of the entire trial to determine whether it served its purpose – i.e., did it properly equip the jury to decide the case in keeping with the law and the evidence: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-36, 57-58 and 72. The instructions must be objective, fair and balanced, neither “promot[ing] unduly the case for the Crown” nor “effectively ignor[ing] and denigrat[ing] the defence case”: R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, at para. 158. In addition to outlining the factual issues the jury must decide and the legal principles governing those factual issues and the evidence received at trial, trial judges must outline the positions of each party and review the evidence relevant to those positions: Sanclemente, at para. 157.
97It is neither necessary nor desirable for a trial judge to exhaustively review every piece of evidence in a jury charge; indeed, an exhaustive review may serve only to confuse jurors as to the central issues to be decided. The obligation of the trial judge is to review the “substantial” parts of the evidence, and what this looks like will vary from case to case – the test is one of fairness: Sanclemente, at paras. 159-60. In Sanclemente, at paras. 162-63, this court provided the following guidance on how appellate courts should treat claims of imbalance in jury instructions:
First, claims of imbalance in a jury charge cannot be sustained on the basis of a microscopic scrutiny of isolated portions of the charge. Imbalance can only be established, if at all, on a review of the charge as a whole and in the context of other trial events, such as the positions put forward and the addresses of counsel.
Imbalance in a jury charge is not determined as if it were an accounting exercise undertaken to produce a balance sheet. … Fairness or balance is about assessing the whole to determine whether, in substance or effect, the instruction unduly promoted the case for the Crown and denigrated the defence case to such an extent that it was not fully presented to the jury.
98In cases where the “evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary”, trial judges are not “obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference”: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at paras. 139. This is especially so where the defence position is “that the cumulative effect of all the evidence falls short of proof beyond a reasonable doubt”: Stubbs, at para. 139.
d. Application of the legal principles
99The appellants’ complaints of imbalance are simply not borne out on the record. This was a lengthy and complex trial which involved evidence that needed to be understood not only on its own but in relation to all of the other evidence. “Decant[ing] and simplify[ing]” the evidence and issues in this case was a formidable task which, in my view, the trial judge did quite well: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13.
100There were, to be sure, instances where the trial judge did not formally rule on defence requests and objections, and he did brusquely dismiss some of the submissions made by Ms. Balgobin’s counsel on June 22, 2023. However, that does not mean we can overlook the many times the trial judge did accede to requests from defence counsel before finalizing and delivering his jury charge. In the end, counsel had ample opportunity to weigh in on the jury charge and, on the whole, the trial judge fairly considered their requests. At bottom, the appellants’ real complaint is that the trial judge did not outline every item of evidence or detail every aspect of their respective positions, as urged upon him by their counsel.
101The trial judge did not, as the appellants claim, provide an unfair chronology of events to the jury. First of all, the trial judge used the lengthy timeline prepared by counsel for Mr. Konashewych as a cross-reference to ensure his own chronology captured the most important evidence accurately. Importantly, the trial judge’s specific instruction about the timeline urged the jury (i) not to read anything into what it included or omitted; and (ii) to not allow it to usurp their fact-finding role. The chronology of events that the trial judge outlined for the jury does not appear to convey any overarching narrative of the facts, let alone one favouring the Crown.
102I also reject Ms. Balgobin’s argument about whether she had exclusive opportunity to assist in the fabrication of the will, and her complaint about the trial judge’s W.(D.)3instruction, which she says directed the jury to acquit only if they accepted or had a reasonable doubt that the will was not fabricated, effectively ruling out an acquittal on any other basis.
103I agree with the Crown that the W.(D.) instruction properly focused on whether the will was fabricated by the appellants (or to their knowledge) and that no more guidance was needed on the issue of Ms. Balgobin’s opportunity.
104The W.(D.) instruction was discussed at length during the precharge conference. During these discussions, the Crown’s theory was clear: (i) the will was fabricated by, or to the knowledge of, the appellants between the date Ms. Balgobin learned of Mr. Sommerfeld’s death on June 20, 2017 and the date Mr. Konashewych presented the will to the OPGT on July 12, 2017; and (ii) Ms. Balgobin supplied Mr. Konashewych with a copy of Mr. Sommerfeld’s full signature at some point during that time frame.
105Ultimately, counsel agreed that both accused should be acquitted if the jury believed, or were left with a reasonable doubt by, the evidence of either one of them. Counsel for Mr. Konashewych also conceded that if the jury found the will to be fabricated by the appellants or to their knowledge, then the offence of fraud would be made out. Ms. Balgobin’s counsel did not object to this concession, and further conceded that the jury could be told that they should have little difficulty finding Ms. Balgobin guilty of breach of trust if they found her guilty of fraud.
106Assuming the jury disbelieved the contents of Mr. Konashewych’s affidavit in support of his probate application, and found beyond a reasonable doubt that the will was fabricated by him or to his knowledge, the jury would have acquitted Ms. Balgobin only if they found that a copy of Mr. Sommerfeld’s signature was given to Mr. Konashewych (or whoever prepared the will on his behalf) by someone other than her. The jury would have well understood this. The problem is, there was no evidence that Mr. Konashewych obtained the signature from anyone else at the OPGT or elsewhere. In my view, to suggest to the jury that other individuals who had handled Mr. Sommerfeld’s file could have supplied his signature to Mr. Konashewych would have invited pure speculation.
107In its closing address, the Crown argued that Ms. Balgobin was “the only person in the world” who could have “given Mr. Konashewych all the information he needed to commit this fraud”. However, this submission was not premised on Ms. Balgobin having “exclusive” opportunity; it was based on the fact that Mr. Konashewych and Ms. Balgobin had a close and intimate relationship and that there was no independent evidence Mr. Konashewych even knew Mr. Sommerfeld.
108Put another way, the trial judge was not required to tell the jury that they needed to find Ms. Balgobin had “exclusive” opportunity to find her guilty. While other OPGT employees had access to Mr. Sommerfeld’s file prior to her involvement, there was no air of reality to the suggestion that one of them might have supplied the signature to Mr. Konashewych. As noted above, this suggestion is purely speculative. Nor was there a realistic risk that the jury would convict Ms. Balgobin solely on the basis of her so-called “exclusive” opportunity, even if this were combined with the Crown’s motive theory. To accept this argument would be to distort the true thrust of the Crown’s submission on this issue.
109It was sufficient for the trial judge to provide a general Villaroman instruction and to relate Ms. Balgobin’s defence that there was “no record” she had accessed Mr. Sommerfeld’s documentation with his full signature.
110The W.(D.) instruction was the product of contributions by all counsel, was responsive to the Crown’s theory of the case and to concessions by defence counsel, and ultimately benefited the appellants by making it clear that accepting the evidence of either one of them, or finding that it raised a reasonable doubt, required that both be acquitted.
111Apart from the general claims of imbalance, which I address above, I would also reject the six specific complaints of imbalance in the jury charge that the appellants stressed before this court. Mr. Konashewych argues that: (i) the charge failed to explain that the will could be invalid without necessarily being fabricated; and (ii) the trial judge failed to explain that Mr. Konashewych’s financial situation provided no motive to commit fraud. Ms. Balgobin argues that: (iii) the charge should have specified that the phone call received by Mr. Stelter – which led him to call Ms. Balgobin’s colleague at TRU – was made by a woman from the OPGT; (iv) the charge did not, but should have, set out her version of events about what led her to look into Mr. Sommerfeld’s eligibility for a German pension and why she still had his file on June 21, 2017; (v) the charge should have explained that there was “no evidence” (as opposed to saying there was “no record”) that she accessed documents with Mr. Sommerfeld’s full signature before Mr. Konashewych produced the will to the OPGT on July 12, 2017; and (vi) the jury charge should have adverted to evidence that her continued work on Mr. Sommerfeld’s file (after his death) was not highly irregular, but normal.
112The argument is essentially that the trial judge erred by failing to advert to individual items of evidence that supported their positions, and that by not doing so he placed his thumb on the scale in favour of the Crown.
113Mr. Konashewych argues that the trial judge’s indication to the jury that “the validity of the will and its fabrication are not synonymous” was inadequate. He says more was required to explain this distinction given the extent to which the trial judge reviewed the evidence as to the will’s validity, including the choice of Mr. Konashewych as beneficiary and whether the will’s witnesses existed. In his view, this created a risk that the jury would leap from finding that the will was invalid to finding that it was fabricated by, or to the knowledge of, the appellants.
114I disagree. Mr. Konashewych’s counsel expressly approved of the sentence in the instruction he now impugns on appeal. It is true that the instruction could have been fuller and clearer, but when you consider that counsel forcefully made their submission on this point to the jury and the trial judge’s articulation of the defence position, the jury would have understood the distinction between a will being invalid and a will being fabricated.
115Notably, Mr. Konashewych does not point to evidence in support of the possibility that Mr. Sommerfeld created an invalid will. In my view, his complaint is essentially that the trial judge failed to spin a web of exculpatory inferences based on speculation. This was not the trial judge’s role in charging the jury, nor is it a basis to intervene on appeal.
116Mr. Konashewych argues further that the trial judge erred by not relating his position that he had no financial motive to defraud Mr. Sommerfeld’s estate. Specifically, Mr. Konashewych submits that the trial judge erred by refusing to reference an agreed statement of facts, which, he says, confirmed he was not in any financial trouble at the time of the alleged fraud. I am unpersuaded.
117I understand that defence counsel wanted to counter the evidence of a Crown witness about what Ms. Balgobin told him regarding Mr. Konashewych’s debt and how he could not afford to leave Ms. Dixon. But the agreed statement of facts made it clear that Mr. Konashewych’s finances were in decent shape, and this was forcefully expanded on during his counsel’s closing address. It was not necessary for the trial judge to instruct the jury any further on this issue. It cannot reasonably be said that someone with Mr. Konashewych’s net worth would have no motive to commit fraud. I appreciate that the instruction on motive as it relates to Ms. Balgobin mentioned Mr. Konashewych’s financial circumstances, but the trial judge instructed the jury that Ms. Balgobin’s out-of-court statements to other witnesses “are admissible only in relation to the Crown’s case against her and not as against Mr. Konashewych.” There was nothing more for the trial judge to do on this front.
118In sum, there was no need for the trial judge to reference Mr. Konashewych’s finances and certainly no basis for a “proven absence of motive” instruction in relation to him.
119With respect to Ms. Balgobin’s first complaint, she takes issue with the following passage in the jury charge:
[Ms. Balgobin] also told you that she called Mr. Peter Stelter to advise of his brother’s death and give him information about the funeral home and [her TRU colleague’s] number to call on June 22, 2017, after seeing [her TRU colleague’s] 10:55 a.m. PGTed note that she had mailed out next of kin letters. She made no note of making this call in PGTed. [The TRU colleague] did note the call she received from Mr. Stelter that afternoon in PGTed. [The TRU colleague] has no memory of her actions in relation to this file, apart from the note she made in PGTed, or the letters she sent or received. She could not tell you how Mr. Stelter came to call her that afternoon, but she had obtained addresses for two Peter Stelters and sent them inquiry letters that morning. Peter Stelter was not sure who provided him with [the TRU colleague’s] number to call but remembered a woman calling. [Emphasis added.]
120Ms. Balgobin says that the trial judge should have reminded the jury of Mr. Stelter’s testimony that the woman who called to inform him of his brother’s death, and who supplied him with a number to contact TRU, was also from the OPGT. Ms. Balgobin’s position is that this was important as it tended to support her evidence that she made the call.
121The trial judge was not required to review all of the evidence exhaustively, only the material evidence. Ms. Balgobin’s defence did not hinge on Mr. Stelter’s evidence in cross-examination that a “woman from the [OPGT]” called to inform him of his brother’s death, and her defence counsel made their position on this clear in the closing address. While the trial judge did not deliver the jury charge exactly as Ms. Balgobin’s defence counsel wanted, it nevertheless conveyed the substance of what she wanted the jury to know: “[Ms. Balgobin] told you that she called Mr. Peter Stelter” and that Mr. Stelter “remembered a woman calling.”
122Ms. Balgobin’s position on this point also fails to appreciate the nature of the Crown’s position, which was that Ms. Balgobin lied about the content of the call in later communications with Mr. Konashewych’s estate lawyer. The jury would have understood that the call was between Mr. Stelter and a woman from the OPGT, which would have gone some distance in confirming Ms. Balgobin’s evidence that she made the call. Again, the issue was the content of the call as later reported by Ms. Balgobin, not who was on the call.
123Next, I see no merit to the argument that the trial judge had to specifically set out Ms. Balgobin’s evidence about how the “German pension” inquiry arose and why she still had Mr. Sommerfeld’s file with her on June 21, 2017. Ms. Balgobin’s counsel made it clear in their closing address what their position was on this, and what Ms. Balgobin said about it. As with many of these complaints about imbalance, this issue does not raise questions as to whether the trial judge properly instructed the jury on the law. It properly fell to counsel, through their closing submissions, to bridge inevitable gaps in the trial judge’s review of the evidence in this long and complex trial. They did that.
124Similarly, the trial judge’s reference to there being “no record” of Ms. Balgobin accessing documents with Mr. Sommerfeld’s full signature, as opposed to saying that there was “no evidence”, does not reflect an unbalanced jury charge. In my view, this argument urges us to microscopically scrutinize isolated portions of the jury charge, which this court in Sanclemente warned against: at para. 162. First, it is unlikely that the jury would have made much of the distinction counsel now draws. Second, the trial judge did accede to the defence request to say there was “no evidence” that Ms. Balgobin had “asked for”, “checked out”, or “received” Mr. Sommerfeld’s SIN card which would have had his full signature. He expressly told counsel that he would go no further than that. The trial judge’s decision to draw the line where he did should be respected and upheld.
125I also reject the argument that the trial judge should have told the jury that Ms. Balgobin’s work on the file after Mr. Sommerfeld’s death was normal. Again, I appreciate what defence counsel was trying to achieve here, which was to neutralize Crown evidence that an SCR’s work on a file typically ends upon their client’s death. But the jury charge only discusses this evidence in general terms, with no suggestion that Ms. Balgobin’s continued involvement with Mr. Sommerfeld’s file was unusual.
126Accordingly, I reject this ground of appeal.
vii. Neither of the appellants’ sentences were demonstrably unfit, nor do they reflect a material error in principle
127Both appellants received a seven-year sentence for fraud in excess of $5,000. Ms. Balgobin also received a concurrent sentence of five years’ imprisonment in relation to her conviction for breach of trust by a public officer – the maximum available for that offence when prosecuted by indictment.
128If their appeals against conviction are dismissed, the appellants seek leave to appeal sentence, and if leave is granted, they ask that their sentences be reduced such that they can be served conditionally in the community or that they amount, at most, to custodial sentences of between two and three years.
129Mr. Konashewych argues that the trial judge committed several errors in principle that affected his sentence and imposed a sentence far beyond the range for “large scale” frauds outside the commercial context. In his view, these errors displace the deference typically owed to sentencing decisions such that we should sentence him afresh.
130Mr. Konashewych argues that the trial judge erred in finding that the aggravating factor in s. 380.1(1)(d) of the Criminal Code was made out – i.e., that “in committing the offence, the offender took advantage of the high regard in which the offender was held in the community”. He says that the trial judge’s finding that he used his status as a police officer to facilitate the probate process and thus the fraud was not based on any evidence adduced at trial. Pointing to the testimony of the supervisor of court operations at the Superior Court in Brampton, where the probate application was brought, Mr. Konashewych contends that the evidence at trial was that the application was processed in the normal course and the fact that he was a police officer “had no impact on the probate process.”
131Mr. Konashewych argues further that the trial judge improperly relied on s. 380.1(2) of the Criminal Code to dismiss his personal circumstances and the collateral consequence of his loss of employment. The logic of this complaint is the same as for the first, namely that there was no evidence that Mr. Konashewych’s employment, status, or reputation in the community was relevant to, contributed to, or was used in the commission of the offence. The implication of this submission is that the trial judge ought to have considered Mr. Konashewych’s loss of employment, status, and reputation as a mitigating factor on sentencing.
132Finally, Mr. Konashewych argues that his sentence violates the principles of parity and restraint by exceeding the sentencing range for “large scale” frauds committed outside the commercial context.
133Ms. Balgobin takes the position that her sentence is manifestly unfit and violates the principles of proportionality and parity. She further alleges that: (i) the trial judge erred in interpreting and applying s. 380.1(2) of the Criminal Code as against her; and (ii) the trial judge, having conveyed the Crown’s motive theory in the jury instructions, “was bound to apply that dynamic” to find her level of moral responsibility was less than that of Mr. Konashewych. In the alternative, Ms. Balgobin argues that the degree of her responsibility is less than Mr. Konashewych’s because she “received nothing from the crime”, and that therefore her sentence should be more lenient than his. Finally, Ms. Balgobin submits that the trial judge erred in finding that she had called Mr. Stelter soon after Mr. Sommerfeld’s death – which he declined to confirm for the jury – and in finding that this call was a step taken to advance the fraud.
134In R. v. Sheppard, 2025 SCC 29, 507 D.L.R. (4th) 78, at para. 38, the Supreme Court recently rearticulated the standard of review, stating that “[s]entencing decisions are discretionary and are owed considerable deference from appellate courts.” Intervention is only justified when the sentencing judge “has committed an error in principle that impacted the sentence or where the sentence is demonstrably unfit”: Sheppard, at para. 39.
135Setting aside the appellants’ specific complaints, which I address below, the trial judge considered all of the relevant factors and sentencing principles in this case. He also properly assessed the gravity of the offences and both appellants’ personal circumstances and degree of responsibility. He further explained his decision to impose an “exemplary” sentence.
136To Ms. Balgobin’s submission that her sentence is “manifestly unfit”, I note that a sentence is demonstrably unfit where it amounts to “an unreasonable departure” from the proportionality principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53. There is little to be said on this ground, other than that a seven-year sentence, while a significant punishment that likely falls at the higher end of available sanctions, perhaps even at the highest possible end of the range, does not represent an unreasonable departure from the proportionality principle.
137I further reject Mr. Konashewych’s argument that the trial judge incorrectly relied on s. 380.1(1)(d) of the Criminal Code. The trial judge found that s. 380.1(1)(d) applied to Mr. Konashewych because the probate application filed on his behalf included references to his status as a police officer and falsely claimed that he used a police database to search for the will’s fictitious witnesses. For the trial judge, this showed that, “in committing the offence, [he] took advantage of the high regard in which [he] was held in the community”. Mr. Konashewych submits that there was no evidence to support this finding, pointing to the fact that the supervisor of court operations was not asked whether Mr. Konashewych’s status as a police officer influenced the probate process. However, nothing in s. 380.1(1)(d) suggests that an offender’s exploitation of the “high regard” in which the community holds them needs to have demonstrably advanced the criminal scheme in question.
138Nor did Mr. Konashewych’s purported efforts to track down the fictitious witnesses by other means, such as attending at residential addresses listed for them in the will, neutralize the relevance of his false claim that he used the police database to track them down.
139It cannot reasonably be disputed that Mr. Konashewych traded on his status as a police officer, and the “high regard” in which he was held, in committing this fraud. And, as indicated, it does not matter whether Mr. Konashewych’s invocation of his position as a police officer can be shown to have helped him successfully advance the crime. I agree with the trial judge that “[t]he scheme of seeking probate of a forged will made use of the veneer of respectability that his standing as a police officer necessarily imparted to the entire probate process in the eyes of every participant who was made aware of that status.”
140I also reject the argument of both appellants that the trial judge erred in applying s. 380.1(2) of the Criminal Code. The trial judge found that s. 380.1(2) precluded him from considering the appellants’ loss of employment and status or reputation in the community as mitigating on the basis that all three of these “were relevant to, contributed to, or were used in the commission of the offence.” While he acknowledged the collateral consequences suffered by the appellants, he found that any mitigation these factors might otherwise warrant was offset by the serious aggravating factors at play and the gravity of the crime, and that it would undermine the objectives of denunciation and deterrence to give these factors much weight. These findings were open to the trial judge. Again, it cannot reasonably be disputed that the appellants used their professional positions and community status in committing the fraud. As the Supreme Court has made clear, a collateral consequence will warrant little mitigation where it “is so directly linked to the nature of an offence as to be almost inevitable” (citation omitted): R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 49.
141I similarly reject Ms. Balgobin’s argument that the trial judge erred in his treatment of her motive.
142The trial judge did not reject the Crown’s theory about Ms. Balgobin’s motive at sentencing; he found that he could not determine her motive for certain. He was not required to give effect to the Crown’s motive theory simply because he had put it before the jury and, on that basis, find that Ms. Balgobin’s moral culpability was lesser.
143The trial judge was also entitled to reject the separate submission by counsel for Ms. Balgobin that her degree of responsibility was less because Mr. Konashewych had “directed” the steps she took to further the fraud. As the trial judge found, there was no evidence that Mr. Konashewych had manipulated or dominated Ms. Balgobin with a view to securing her cooperation or complicity.
144As for Ms. Balgobin’s argument that her moral responsibility was lesser because she received none of the proceeds of the crime, the trial judge did recognize this at sentencing, finding it was one way in which her conduct was less serious than that of Mr. Konashewych. The trial judge simply found that, in other ways, Ms. Balgobin’s conduct was more serious than that of her co-accused, because, in addition to the fraud, she violated a vulnerable person’s trust.
145Ms. Balgobin also takes issue with the trial judge’s finding that she called Mr. Stelter, and that this was a step taken to assist the fraud by enabling her to verify that he did not have Mr. Sommerfeld’s will or know any current information about him. The trial judge found this to be relevant to the aggravating factor at s. 380.1(1)(d), as it involved trading on her professional status. I see no error in this finding even though, as noted earlier, the trial judge declined to confirm for the jury that Ms. Balgobin had indeed called Mr. Stelter. Even if the trial judge erred in drawing the inferences he did about the role of this call in advancing the fraud, such an error would be immaterial because he found that s. 380.1(1)(d) applied to Ms. Balgobin on several other bases as well.
146Lastly, the trial judge did not err in imposing sentences in excess of the jurisprudential range applicable to “large-scale frauds”. I do not read the trial judge’s sentencing reasons as being preoccupied with the “large scale” label. While he did consult this court’s case law on sentencing for such frauds, his findings about whether this fraud was “large scale” were ambivalent and secondary to his focus on the gravity of the offence and the appellants’ degree of responsibility. It was the many severe aggravating factors in this case and the corrosive impact of the fraud on public trust in the police and the OPGT that drove the trial judge’s decision to impose an “exemplary” sentence.
147The Supreme Court has consistently reinforced that sentencing ranges are guidelines, and not hard and fast rules: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 37. Therefore, deviating from the sentencing range “is not synonymous with an error of law or an error in principle”: Lacasse, at para. 60. The facts of this case and the sentencing judge’s path of reasoning justify sentences beyond the three- to five-year range indicated in other fraud cases, even though the amount of the fraud here is less than the amounts at issue in some such cases. What is important is whether “the sentencing judge’s reasons and the record” allow an appellate court “to understand why the sentence is proportionate despite a significant departure from the range”: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 40. In this case, they do.
148The trial judge did not commit errors in principle that impacted the sentence of either appellant, nor are the sentences demonstrably unfit.
V. CONCLUSION
149For these reasons, I would dismiss the appeals against conviction. While I would grant the appellants leave to appeal their sentences, I would dismiss the sentence appeals.
Released: July 8, 2026 “J.G.”
“J. George J.A.” “I agree. L. Favreau J.A.” “I agree. R. Pomerance J.A.”
Footnotes
- The scope of the search was limited to 2001 onward.
- R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
- R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.