Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Markus Tapio Vuorinen also known as Markus Tapio Fjall
Before: Justice D.B. Maund
Heard on: May 28, June 10, and July 28, 2014
Reasons for Judgment released: August 12, 2014
Counsel
Mr. R. Fetterly — counsel for the Crown
Mr. R. Allman — counsel for the accused Markus Tapio Vuorinen
Judgment
Introduction
1The accused, Mr. Vuorinen, stands charged with nine charges contrary to the Criminal Code of Canada. This trial commenced on May 28 and proceeded over three days concluding on July 28 last. It is before the Court today for Judgment.
2Counts #1 and #3 allege assaults against Amanda Rayburn on January 15 and February 9, 2014 at the Town of Orangeville, contrary to Section 266 of the Criminal Code.
3Counts #2 and #4 allege threats by verbal means to cause death or bodily harm to Amanda Rayburn contrary to Section 264.1 of the Criminal Code, also on January 15 and February 9, 2014.
4Count #8 charges the unlawful use of a Toronto-Dominion 'Emerald' VISA card in the name of Charmaine Thomas knowing that the card was obtained by the commission in Canada of an offence contrary to Section 342(1)(c) between the 10 day of January and the 10 day of February, 2014 at the Town of Orangeville.
5Mr. Vuorinen is also charged with possession of property obtained by crime to wit: A Kindle Reader and a Go Pro camera belonging to Charmaine Thomas contrary to Section 354(1)(a) of the Criminal Code.
6And finally, a plea of guilt was entered during the trial in relation to Count #6 which is unlawful possession of property of Anna Ripmeester on February 28, 2014 in the Town of Orangeville.
7Count #5 was withdrawn by the Crown on the first day of trial and I will speak to Count #7 in the course of these Reasons.
The Facts
8The accused, Mr. Vuorinen, is a citizen of Finland and came to Canada on a six-month visitor's visa in 2010. Except for a three or four month interval when the Defendant says he flew back to Finland, he has remained in Canada on his visitor's visa which expired after it was last extended some time in 2010. Mr. Vuorinen acknowledged that he remained illegally in Canada after 2011. He lived in a number of communities during the following years, mainly in Western Canada but also in Ontario. He was never officially employed but indicated that at different times he was engaged in activities as a person training in outdoor survivor skills.
9The lives of the three complainants who testified in this matter intersected with Mr. Vuorinen as he travelled from place to place in Canada. Their evidence as well as the testimony of the accused himself provide the context for these alleged offences.
Charmaine Thomas
10Charmaine Thomas testified by remote video link from Edmonton, Alberta. Ms. Thomas is 32-years of age and lives in Whitecourt, Alberta and operates a family gravel pit in that community. She met the accused in August, 2013 and indicated that shortly after that he moved into a room in her house. She said he introduced himself and she knew him as Markus Fjall. Ms. Thomas testified that Mr. Vuorinen told her that he had been working doing renovation work in Winnipeg for his own company known as Fjall Services. He also told her that he maintained a website which promoted his tracking and survival training business and that he had recently lost his wife to cancer when he lived in Comox, British Columbia.
11According to Ms. Thomas the relationship became a romantic one and continued until December 27, 2013 when she took him to the bus station in Whitecourt. The witness indicated that he told her that he was going to Ontario to work for a movie company known as Clancy Productions where he would be engaged in training one of the actors in outdoor survival skills. This was the last time Charmaine Thomas saw Mr. Vuorinen.
12During the period between August and December, she testified that Mr. Vuorinen would come and go from her home. She understood that he was working for a company in the United States and at one period of time was also living off the land, hunting and tracking in a remote area of Alberta. During the period when the defendant lived in Ms. Thomas' home, she believed that they considered themselves partners. He mentioned to her that at one point that they should get married. Her belief was that she would start to help him with his training business. And Ms. Thomas left her job in order to work with Mr. Vuorinen in his business.
13Ms. Thomas spoke to the defendant regularly by cell phone or text. The original trip to Ontario was to last about ten days but these days turned into weeks. Initially Ms. Thomas was told by the Defendant that he was working long hours training for the production company. However, he subsequently informed her that he was unwell and had been diagnosed with terminal lung cancer. Ms. Thomas became suspicious when she called back some of the numbers which the accused had called on her phone. One of these was the number of a person he had told her was the lawyer for the production company. She found out from the female at the end of that number that this was not the case.
14In relation to her Toronto-Dominion credit card, Ms. Thomas testified that while she used this card in the defendant's presence she never gave him permission to use it or gave him her PIN identification number. She indicated that it was not until late in January when she checked her credit card statement that she noticed her credit card was missing. She also said that the Go Pro camera and Kindle Reader device which were found in Mr. Vuorinen's possession in Ontario belonged to her and she did not permit him to take these items with him when he left in December. Specifically, Ms. Thomas testified that she did not authorize the accused to use her Visa card to purchase the various items shown on her statements from transactions in Ontario as set out in Exhibits '8', '9a' and '11'. She reported her card as stolen on February 8, 2014 and had the card cancelled.
15On cross-examination Ms. Thomas confirmed that during the time he lived in Whitecourt, Mr. Vuorinen travelled to Athabasca in connection with his work in the outdoors. While she did not believe he took the Go Pro camera with him she conceded that that was possible. However, she believes she kept it in her closet. She denied this camera was purchased for the defendant's work and but rather was for her own use.
16In relation to her Visa card, the witness said that she rarely used the card but stored it away for occasional use. She rarely checked her monthly banking statements and only occasionally made reference to the banking app on her phone to check the account balance. She said her card was kept in her truck and that Mr. Vuorinen was aware that she kept it there.
17When suggested by counsel that she gave the accused her credit card to use when he travelled to Pemberton, British Columbia, she stated unequivocally that she did not. While some charges she acknowledged were made by her, a series of charges on the bank statement were not hers or authorized. She said she went to the police when she discovered Mr. Vuorinen was using her card during his time in Ontario. Ms. Thomas also denied giving him a sum of cash along with the credit card to use during his travel and work in Ontario. She denied asking Mr. Vuorinen about the balance of the credit card when she spoke with him by text at any time.
18The witness denied that the Kindle Reader device was purchased by the Defendant. She said she acquired this by way of a refund credit at a local Staples store.
19Ms. Thomas acknowledged that the accused used the Go Pro camera on several occasions, presumably with her consent. However he did not ask to take the camera with him when he travelled to Ontario.
20According to Charmaine Thomas, when she became aware that Mr. Vuorinen was using her card she confronted him by text and told him she knew he was not who he said he was. The Defendant said that he would repay any monies that he had spent using the card. She never received any repayment from Mr. Vuorinen for any of these charges.
21By the last day of trial the Crown came into possession of a series of text messages between Charmaine Thomas and the accused between January 31, 2014 and February 7, 2014. These emails were obtained through the complainant Anna Ripmeester who had previously testified. I will not summarize all of the emails. Generally Mr. Vuorinen attempts to elicit Ms. Thomas' sympathy. He gave her false descriptions of his illness from cancer. There were mutual endearments and concern on the part of Ms. Thomas about his health. However in the exchange on January 31, 2014 Ms. Thomas wrote the following:
"How are you doing?
I got my card number for Internet.
I just need a 140 or so for my appt.
I believe there was 800 something left. Just so you know."
22There is no other mention of the credit card in this exchange of text messages until the reference by the Defendant at the end of his February 6, 2014 text. After the words "Love you and I miss you." The words are "and card 09/14 and 703." This is apparently in reference to the previous text from Ms. Thomas and her request for the expiry date and security reference on the card.
23The contents of these texts were not put to Ms. Thomas during her testimony. Unfortunately they were not then in the possession of Crown or Defence through no fault of counsel. Ms. Thomas was not challenged by the evidence of these texts which appear to contradict her direct evidence that she was not aware that Mr. Vuorinen had her credit card with him in Ontario and was using it. Her text messages are in complete contradiction of her evidence on that point.
Anna Ripmeester
24I will summarize the evidence of the second complainant, Anna Ripmeester to give context to the circumstances of the charges. As I have noted already, a plea of guilt was entered on count #6 during the trial.
25Ms. Ripmeester is 52 years old and works as an assistant manager in retail in St. Catharines. She met the defendant on June 27, 2013 on a computer dating site. She knew him by the name of Markus Fjall during their relationship. While Ms. Ripmeester communicated online with the accused she first met him in person on December 29, 2013 when he texted her that he was arriving at the bus station in Toronto. Her recollection was that he told her that he could no longer stay away from her, or words to that effect.
26Her understanding was that the Defendant worked as a wilderness guide and that his wife had died from cancer four years before. During the January of this year Mr. Vuorinen stayed with her in St. Catharines on and off. She said that when she drove him to the bus station on January 5, 2014, she understood that he was traveling to Montreal on business. She later took him to the bus station on January 14 when he went to Orangeville for what she was told was for work. Two weeks later on January 28, Ms. Ripmeester picked up Mr. Vuorinen in Orangeville on Dawson Street. She later returned him to Orangeville on February 6. Mr. Vuorinen told her that he had to go to Orangeville from which he would fly to Mecina to do his work for the film production company.
27The work that Mr. Vuorinen told Ms. Ripmeester that he did involved giving survivalist advice to a film production company. He also told her he did choreography work with the actors on knife fighting. That was what he told her, in any event.
28Ms. Ripmeester observed Mr. Vuorinen use a green Visa card but she was not aware of the name on the card. She saw some of the Visa transactions when the defendant was living with her in St. Catharines. On one of the occasions that the card was used by Mr. Vuorinen, she said he became distraught at having to use the Visa card. This was when he was using it to buy a new hard drive at the Mac Store for his computer. He indicated to her that he was able to use the card for emergencies only. He also said that Charmaine Thomas was a close family friend who had given him the card to use in the event that he encountered emergencies while travelling and working.
29While shopping on one occasion Mr. Vuorinen offered to use the card to pay for items she had selected including items of clothing but she declined his offer.
30The relationship between this witness and Mr. Vuorinen was romantic in nature. The two continuously texted each other. At the end of January, when Mr. Vuorinen was unable to obtain his own cell phone, she agreed to obtain a cell phone in her name for his use.
31Her attitude toward the accused changed dramatically when on February 7 or 8 she heard from Charmaine Thomas. Ms. Thomas told her about her relationship with the accused and what she had learned about him. Ms. Ripmeester then sent a text to the Defendant asking him to explain himself and confronted him. She told him that she would cancel the phone account. He promised to return the cell phone the following Monday. This was one of the phones that were recovered from the defendant's property when he was arrested. Ms. Ripmeester also identified her items of jewellery that were taken by Mr. Vuorinen including her rings.
32It was the understanding of Anna Ripmeester that she was involved in a serious relationship with Mr. Vuorinen. She put her house up for sale and had discussed a plan with him to purchase property and live with the accused in British Columbia.
33In relation to the credit card, she heard the accused say, referring to his use of this Visa card"it is my money". That was a reference to the purchases he was making with the card. Before her confrontation with her house guest, she voiced some frustration that she was running out of money supporting him while he was living in her house in St. Catharines.
Amanda Rayburn
34Amanda Rayburn was the third complainant who testified in this trial. Ms. Rayburn is 32 years old and lives in Orangeville on Dawson Road. She met Mr. Vuorinen on a dating website around May, 2013 and knew him by the name of Markus Fjall. Ms. Rayburn met him in person in January, 2014.
35During the preceding year Ms. Rayburn frequently communicated with the accused online. It was her belief that they were in love with each other. She picked him up from the bus station in Brampton on January 7, 2014. The accused told her he would be working in Toronto. They shared a meal at Montana's which the bank statement indicated was paid for with Ms. Thomas' credit card. He told her that he could write off this expense on his business for tax purposes.
36Ms. Rayburn drove the defendant to her home in Orangeville. He stayed with her family for two or three days and then informed her that he would be staying with a cousin of his deceased wife in St. Catharines. Ms. Rayburn picked him up approximately one week later and he stayed with her off and on into February.
37During one of his visits to Orangeville, Ms. Rayburn saw from his cell phone that he was texting an unknown woman. She confronted him about it and told him to leave. His response was to become emotional and he started crying. He got on his knees and told her that he wanted to marry her. While he left after that, they nevertheless continued to communicate regularly by phone or text. The next time he returned he stayed for approximately two weeks. In her opinion their relationship was "good". However, prior to his leaving the first time Ms. Rayburn testified that she got into an argument with the accused. She first described him as shaking her face while he was talking to her. During this conversation she remembers him saying words to the effect that if she were to leave him he would kill her.
38Ms. Rayburn also testified that there were many occasions when he was staying in her home that Mr. Vuorinen told her he would kill himself if she ever told him she did not want to be with him.
39On Sunday, February 9 matters started to come to a conclusion. Ms. Rayburn indicated that she received a text from a British Columbia number asking if she knew a person by the name of Markus. It was at this point that she learned of the existence of Charmaine Thomas and her relationship with Mr. Vuorinen. She confronted the accused who admitted that he had had a relationship with Charmaine Thomas. However, he said that it was over and he had come east to be with her forever. He begged Ms. Rayburn not to let Ms. Thomas know that he was staying in Orangeville.
40Because Ms. Rayburn was angry that she had been lied to, she told the accused that she had slept with her former boyfriend two weeks before. She said this made him mad. He proceeded to pace back and forth while flicking his knife in his hand. This behaviour caused her to become scared and very nervous. The assault alleged occurred after this. During the argument, the Defendant admitted to her that he was in the country illegally and asked for her help. My impression was that Ms. Rayburn forgave Mr. Vuorinen at that point. However the following morning she received another text from Anna Ripmeester who advised her to turn the defendant in to the authorities. She also gave her information about his background and sent her an article which had a reference to the accused by another name.
41Ms. Rayburn reported this matter to the Orangeville Police. In her statement to the officers she said that during the argument on the Sunday evening, the accused came face to face with her and grabbed her shoulders. He looked at her closely and told her that he loved her, but if she were to leave him he would kill her. This made her feel fearful and distraught. When grabbing her shoulders she said he did not use a great deal of force.
42During the first incident when her face was touched, she said that involved a bit more force. While that had not hurt her she indicated that it had scared her at the time.
43During one of his periodic visits, Ms. Rayburn said that Mr. Vuorinen proposed to her and gave her what he said was his grandmother's ring as a token. This and the other jewellery she received from him had in fact been stolen from Ms. Ripmeester when the accused was in St. Catharines. Amanda Rayburn and Mr. Vuorinen made plans to get married.
44On cross-examination she acknowledged that during their time together it was not uncommon for him to hold or touch her arm when he was talking with her. She acknowledged that at one point during a discussion involving her former boyfriend, Mr. Vuorinen put his hands on her shoulders and said that she need not worry about him as they were meant to be together. She did not specifically agree with the Defence that she ever said to the accused that if he were to cheat on her she would kill him. She did say that if she ever used such words to him it would not have been in an aggressive way.
45By the time Ms. Rayburn reported this matter to the police, she said she was scared as she had been told new and strange information about his background. She wanted him out of her house. She never suffered any injury or harm from his physical contact with her at any time.
Defence Evidence
46Mr. Vuorinen testified on his own behalf in this trial. I have already recounted the circumstances he described of his coming and staying in Canada.
47In relation to Amanda Rayburn Mr. Vuorinen testified that he met her on a dating site in May, 2013. They had an immediate intimacy which he described as "unique" and "love at first sight". He nevertheless acknowledged that he also had attachments or relationships with other women during his online dating of Ms. Rayburn until he first met her in January, 2014. During that year he indicated that he lived in Winnipeg where he helped to fix a residence before moving to Whitecourt, Alberta in July, 2013. He testified that the Go Pro camera was purchased specifically for his expedition to the Athabasca. This was purchased with the credit card of Charmaine Thomas. He said he had her permission to use the card in that transaction and she supplied him with the card PIN and instructed him how to use her credit card. He was confused about how to use a credit card according to his evidence.
48The Go Pro camera was an action camera which he needed to document his expedition to the Athabasca River. He said he had permission of Charmaine Thomas to use the camera on this trip and also for all of his outdoor work. He did not specifically ask her permission to use it after that because he did not think he needed to.
49In relation to his subsequent use of the credit card, the Defendant testified that when he took a trip to Pemberton, British Columbia Ms. Thomas gave him her credit card to use. He repeatedly described the card as being for "back up". He said he believed he had her permission to make purchases. He said this made him uncomfortable because his preference was to use cash and discussed with Ms. Thomas what balance was available for his use. On one occasion he said he called Charmaine Thomas to ask if he could use the card at an ATM machine for cash but was told that cash withdrawal was not available on that card.
50After Mr. Vuorinen returned from Pemberton he says that he gave the card back to Ms. Thomas who kept it in her wallet. He subsequently used it several times for normal purchases while he was with her in Whitecourt for items such as groceries. At all times he was aware of the PIN number to use the card because she had provided it to him. According to the Defendant, Ms. Thomas' evidence that she did not give him permission to use the card was a lie.
51With respect to his ongoing use of the card the accused testified that he had his own supply of cash which he used for his regular expenses. He did not believe there were any restrictions of his use of the card if he needed it. Nevertheless, he said that for some of the items that he purchased with the card, he did ask for her permission.
52Throughout Mr. Vuorinen's trip to Ontario he was in constant communication by text with Charmaine Thomas. It was his understanding that he could buy groceries or whatever he needed by using the card. She never told him that he could not make such purchases.
53With respect to the Kindle Reader, the accused testified that he was the one who purchased it in Whitecourt in August and he paid with cash. The majority of books on the Kindle Reader were his books and related to outdoor activities and survival themes. During his evidence the Kindle Reader was opened in Court. It was conceded that the majority of texts on the Kindle relate to those topics of interest to Mr. Vuorinen.
54On the weekend prior to his arrest in Orangeville, the Defendant said that he promised Ms. Thomas that he would pay her back for his purchases with the card. During the time Mr. Vuorinen was heading east on the bus he was also in contact with Anna Ripmeester by text. He decided, in his words"why not get together with her" as well as Ms. Rayburn. With respect to his relationship with Ms. Rayburn he believes they got along very well and were in a loving, passionate relationship. He believes that any comments that he may have made about killing Ms. Rayburn were in the context of a mutual joke about the consequences of either of them cheating on one another. He believed that such comments were mutual and could not have been taken seriously. In any event, he never made such comments with any intent to alarm her or be taken seriously.
55He said that he had a passionate relationship with Amanda Rayburn. Mr. Vuorinen acknowledged that he did hold her face while kissing her but with no intention to hurt her. He also frequently held her arms and shoulders but it was an affectionate, mutual type of contact.
56As to his use of the surname, 'Fjall' which is not the name that appears on his passport, Mr. Vuorinen said that he had sent in forms to change his name to Fjall. His reason for wanting to change his name was that he was famous back in Finland where he had once hosted a television show. There was a remote family connection with this name on his mother's side.
57On cross-examination Mr. Vuorinen acknowledged that his visitor's visa which permitted him to enter Canada did not permit him to work. He was aware that he had remained illegally in Canada since his visa expired in 2011. He acknowledged that when he told the previous witnesses that he had a Canadian wife who died of cancer, that that was a lie. He also acknowledged that his indication to all three of the complainants about his work in the movie business had also been a lie. His comment to Amanda Rayburn that Ms. Ripmeester was 'a cousin' of a deceased wife was also acknowledged as a lie.
58In relation to Charmaine Thomas, Mr. Vuorinen testified that he had a relationship with her in the beginning and was assisting her with her work. He never told Ms. Thomas that he also was conducting online dating relationships with two women in Ontario. He stated that if one is dating two or three girls at the same time, you should not tell them. He also acknowledged that he lied to Ms. Thomas that he was coming east in order to work. He did not work in either Ontario or Quebec at any time. He understood that the card was given to him with the expectation on the part of Ms. Thomas that he would be getting a job and would use his earnings to pay her back.
59When Mr. Vuorinen arrived in Ontario he said he had two hundred to four hundred dollars in cash. When asked by the Crown where he had obtained the cash he said that this was from making of knives and selling them. However he later acknowledged that he did not really know where the money came from. He could not explain why, when he was in possession of cash, he used the credit card on his arrival in Brampton. He acknowledged that it was not for any business purpose when he took Amanda Rayburn to eat at Montana's. He acknowledged that his use of the card to buy food for a date in Ontario was not what Charmaine Thomas understood the card could be used for. In his words it was the "wrong moment" to use the card. He did not tell Ms. Thomas that he had used the card for meals or similar personal expenses.
60With respect to the texts with Charmaine Thomas, Mr. Vuorinen acknowledged that his repeated indications to Ms. Thomas that he had terminal cancer were lies as were his stories about work. He said he told her he loved her because he was "trying to keep her happy". He agreed that he did not want her to cut off his credit card at that point. However, he denied the suggestion by the Crown Attorney that he stole the credit card from Ms. Thomas. He acknowledged that if he had told Ms. Thomas that he was going to Ontario to see other women she would not have let him take and use her card.
61The accused acknowledged his use of the credit card for all of the listed transactions in Ontario locations. As to Ms. Ripmeester's testimony that they planned to marry and move to British Columbia, he described this as "her plan" from half a year ago. However, he did acknowledge that while he was staying with her in St. Catharines this was discussed. He was not sure of his intentions as far as Ms. Ripmeester was concerned.
62Mr. Vuorinen also acknowledged lying to Amanda Rayburn about many things including the fact that he had a dead Canadian wife and his work projects. And also that he worked for a security company when he was in St. Catharines.
63During the incident with Ms. Rayburn when he learned she had slept with her ex-boyfriend, he said that he only "lifted her face" and said 'look at me'. However he indicated that he was not forceful but only guided her face to look up. He did not remember grabbing her shoulder in any argument but he did touch her shoulder on some occasions while talking. He acknowledged that he was upset but more sad than forceful during one incident. He denies assaulting her as described. In relation to the camera, Mr. Vuorinen testified that there was no discussion about paying Ms. Thomas back. He simply understood that he was able to use it at any time. He also testified that Ms. Thomas was aware that he was taking both the camera and the Kindle Reader with him when he came to Ontario.
64Concerning his offer to Ms. Ripmeester to buy her picture frames by using the credit card, Mr. Vuorinen indicated this was "a mistake". He acknowledged telling Ms. Thomas in the exchange of texts that he would come back and pay her what he owed her. And also that the camera belongs to Ms. Thomas. When asked how he intended to repay what was owed on the card, he indicated that he would do this from taking out a loan. Mr. Vuorinen also testified that he had money available in Finland. The reason he did not transfer money from Finland for his needs here was that he had bills to pay in Finland. Some of his assets also were in stocks and he had a limited amount held in cash. It was not clear from the defendant's evidence why he decided not to access his resources in Finland to meet with his financial needs while staying in Canada.
Analysis
65The facts of this case present themselves as a cautionary tale for those lonely and trusting persons who frequent unregulated online dating sites. It was through the use of such computer sites that the complainants in this case met and became involved with the accused, Mr. Vuorinen. The complainants all accepted his false and grandiose claims about himself and his professed undying love for them. Mr. Vuorinen was not who he seemed to be.
66On the contrary, since his arrival in Canada in 2009 or 2010, Mr. Vuorinen (who gave out his name as Mr. Fjall) has drifted from place to place with little, if any, means of support of his own. While he claimed to have his own money from employment and resources back in Finland, the reality from all of the evidence is that he has mainly relied upon ongoing support from a series of women whom he met and formed relationships with. The relationships which he conducted simultaneously with these three complainants, were mainly based on lies about himself.
67Nevertheless the only issue for this Court in a criminal trial is whether the evidence supports proof of guilt beyond a reasonable doubt on the charges laid. That burden of proof upon the Crown never shifts in a criminal trial. And the Court must always be mindful of the three tests to consider in W(D) when an accused presents their own version of an alleged criminal narrative.
The Unlawful Possession Charge (Count #9)
68Charmaine Thomas denied that she gave the Defendant permission to have the Go Pro camera with him when he left for Ontario. She takes the same position with respect to the Kindle Reader which she claims to have purchased. Mr. Vuorinen said that he acquired the Kindle with his own cash. While the source of the Defendant's available cash was unexplained in his evidence, there were no receipts available to clarify ownership of this reading device. Moreover, the reading materials loaded onto the Kindle were shown to be predominantly about topics or themes of particular interest to Mr. Vuorinen in relation to his survivalist interests. I infer that he was the primary user.
69Ownership of the camera is not in dispute and I direct that it be returned to Ms. Thomas after this trial. What is in dispute is whether the accused was permitted to take it with him. Charmaine Thomas acknowledged that she allowed him to use the camera to record his trip to Athabasca in the summer of 2013 and at other times. She seems to have had no issue with his use of the camera when they lived together when she believed she was becoming a partner in his survival training business.
70There never was a business. But her position is consistent with the Defendant's evidence that he generally was allowed to use the camera when he wanted. So he believed that he had permission to take it with him on his fake business trip to Ontario.
71The evidence rises to a level of suspicion but, considered as a whole, raises a doubt in relation to criminal intent. The Section 354(1)(a) charge in Count #9 is dismissed.
Unlawful Use of the Credit Card (Count #8)
72The Crown fairly acknowledged that their case will stand or fall on my analysis on this count. They are not seeking a finding on the companion Section 342(1)(c) charge in Count #7 of unlawful possession of the TD Visa Card. This position undoubtedly was taken following the contradiction in the evidence of Charmaine Thomas from the text messages. In any event, Count #7 will be dismissed.
73While all three complainants displayed a sense of betrayal and disappointment from their dealings with Mr. Vuorinen, this did not detract from their credibility generally. Charmaine Thomas testified in a persuasive and straight forward manner and appeared credible in her testimony. She did not tend to exaggerate or embellish her evidence. Ms. Thomas was unequivocal that she did not permit the accused to use her credit card at any time and she did not give it to him to use when he travelled to Ontario. She said it was only when she discovered the unauthorized transactions that she finally confronted Mr. Vuorinen and reported the card stolen.
74Because the Crown did not come into possession of the exchange of texts between Ms. Thomas and the Defendant until after her evidence from out of province, she was never challenged on their content. She had no opportunity to either acknowledge that her evidence about his use of the card was either false or mistaken. Nor did she have an opportunity to explain any context of her reference to the credit card in the texts. I am unable to speculate about what her evidence might have been but must comment that her inability to give any evidence about the texts was unfair to the witness. I am not critical of counsel but that is the result.
75Her text messages can only mean that, at least as of January 31, 2014, Charmaine Thomas was aware that the Defendant had and was using her card. Her reference in the text to the credit balance suggests her understanding that he would continue to use the card. This is directly contrary to her evidence. The only reasonable inference, absent some explanation which I cannot impute or infer, is that Mr. Vuorinen was using the card with her permission by the end of January.
76However the Crown asks me to consider an alternate theory of establishing guilt on the charge of unlawful use of this credit card. The Crown submits that, based on the evidence of the Defendant, he had the use of the card to assist him in his travel and work in Ontario. The accused testified that Ms. Thomas gave him the card as a 'back up' to supplement his limited cash. He never explained why she would be willing to do this.
77However, the Defendant acknowledged that Charmaine Thomas would never have allowed him to use the credit card to support his efforts to impress the other two then unknown complainants. And he indicated that using the card for groceries or dinners with the other woman or offering to buy them things was a 'mistake'. If and when his lies were discovered by Ms. Thomas, the card would be immediately cancelled.
78Mr. Vuorinen must have known that. Clearly it was part of the reason he kept telling her in his text messages that he was dying of terminal cancer, which was a particularly cruel lie. He wanted to ensure his continuing access to her card. The reality of his situation at that time was that, apart from a small and dwindling amount of cash, this credit card was his only means of support. That is, in addition to whatever financial assistance he may have been getting from the other complainants in Ontario.
79The charge in Count #8, Section 342(1)(c) requires proof of the unlawful use of a credit card obtained by the commission in Canada of an offence. Assuming the Crown is unable to establish that the card was stolen from Charmaine Thomas, are there other potential offences which might render his ongoing use of the card a criminal offence under this section of the Code.
80The Crown submits that however Mr. Vuorinen came into possession of this credit card, (that is, even if Charmaine Thomas gave it to him willingly) his ongoing use became unlawful. His use was based on the lie that it was to support his travel and business. Therefore, the Crown argues that he obtained the card on false pretences (Section 361) or with fraudulent intent (Section 380). Mr. Vuorinen had neither the ability nor the intention to repay his use of the card. Moreover, there were three potential victims from his unlawful use including the card owner, the Toronto Dominion Bank and the store owners who extended credit on the card.
81The principle argued here is analogous to the BCCA decision in R v Costello (1982), 1 CCC (3d) 403. The ratio in Costello, as described in Martins Annual Criminal Code (2014) at page 682 is as follows:
"A credit card was obtained by commission of an indictable offence where it was originally simply found by the accused but he subsequently formed the intention to convert the card to his own use"
82Therefore the ongoing intention by an accused to use the card dishonestly, by deceit, falsehood or fraud, supplied the element of proof of commission of an offence in Section 342(1) of the Criminal Code.
83This principle was explicitly approved by the Supreme Court of Canada in R v Elias, 46 C.C.C. (3d) 447. Justice Lamer, speaking for the Court, agreed with the Quebec Court of Appeal which said the following at page 448:
"Even assuming that possession of the said card could have been innocent in the beginning, one must recognize that at some point prior to its use, the accused chose to keep it without colour of right; as a result, his possession of it arose from the commission of an offence. He could have thereafter dealt with it, in particular by continuing the possession that he knew was unlawful, or also by using it. He chose to use it in order to unlawfully obtain merchandise or effects.
It is not offensive to find that possession which is at first innocent, may subsequently become unlawful."
84With respect, I have reviewed the decision of the N.S.C.A. provided by Mr. Allman, R v N.M.P 2000 NSCA 46 , 146 C.C.C. (3d) 167 and I do not find that it is analogous to the ratio in Costello and Elias. N.M.P. dealt with the issue of whether fraud or deceit can vitiate consent of a complainant in a case of sexual assault. The discussion by the N.S.C.A. in the case presented dealt with sexual offences specifically and cannot be applied to the facts before me.
85The accused admitted his ongoing deceit of Charmaine Thomas in his use of the card and that purchases were not authorized. His stated intention that he would repay the charges was either insincere or unrealistic. His conduct surrounding his admitted use of the credit card was dishonest and based on a series of lies to everyone he dealt with. And, there has been economic loss as a result of his use of the card.
86The Defendant's evidence alone supports this theory of proof by the Crown. Even assuming he was given the card by Ms. Thomas, his admitted deceitful and fraudulent conduct after that makes out this offence and there is proof beyond a reasonable doubt in my view. There will be a finding of guilt on count #8.
Charges in Relation to Amanda Rayburn
87Amanda Rayburn was a compelling and credible witness. She presents as a trusting and somewhat passive person who believed the Defendant's stories until she was forced to disbelieve them. It was then that she reported him to the police.
88Two different incidents of assault and threat are alleged. With respect to the first incident on January 15, I am left with a doubt that she was assaulted or threatened. She and Mr. Vuorinen were in the early and blissful period of his stay in Orangeville. They both professed to have a passionate physical and loving relationship, with mutual and frequent affectionate touching. Based on Ms. Rayburn's evidence, I am not persuaded that she believed the touch or cupping of her face was inappropriate or non consensual at that time. The context of that physical contact does not appear to be consistent with an assault. Nor do I find that words of threat were used on that occasion or understood as a threat.
89The second incident on February 9 is a different matter. This incident was fresh in her mind when she complained to the police the following day. This occurred after the argument between them after she learned of the existence of Charmaine Thomas and her own admission about her boyfriend. The behaviour of the Defendant she described was angry and menacing and it frightened her. Mr. Vuorinen grabbed her shoulders in anger and threatened to kill her if she were to leave him. I accept her evidence completely in relation to the second incident.
90Mr. Vuorinen had no memory of grabbing Ms. Rayburn's shoulders during this argument. It was in this incident that he said he 'lifted her face' and indicated he was more sad than anything else when he did so.
91I find that I cannot accept Mr. Vuorinen's denials concerning this assault. Nor do I accept his minimizing of his anger. It is more consistent and logical that he was both angry and very upset that Ms. Rayburn had learned about Charmaine Thomas. All his lies were about to come out and be challenged. This would put his false relationship with Amanda Rayburn in jeopardy. While his contact was not made with force, I infer that his intention in grabbing her shoulders and uttering the threat was to intimidate her. And I am satisfied that this had that effect on Amanda Rayburn.
92In concluding that I do not believe Mr. Vuorinen and equally that I am not left in reasonable doubt by his evidence about the February 9 incident, I caution myself that even an habitual and accomplished liar may yet be telling the truth under oath. The Defendant testified with apparent conviction and did not hesitate to admit his lies when they were put to him. It is difficult to know where those lies end and the truth begins. I fear that Mr. Vuorinen himself may be unable to distinguish between the two. I was not persuaded by his denials that he committed this assault and threat and I have no doubt as a result of his evidence. These charges are proven to the legal standard.
93Accordingly, Counts #1 and #2 are dismissed but there will be a finding of guilt on Counts #3 and #4 in this trial.
Released: August 12, 2014
_______________________________
Justice Douglas B. Maund
