ONTARIO COURT OF JUSTICE
Between:
HER MAJESTY THE QUEEN
— AND —
PETER KROONE
Before: Justice B. Green
Heard on: November 27th and 28th, 2017 and March 8th and 19th, 2018
Reasons for Judgment released on: April 13th, 2018
Counsel:
- Mr. M. Gillen, counsel for the Crown
- Mr. S. Fraser, for the defendant Mr. Kroone
GREEN J.:
A. Introduction
1Mr. Kroone is self employed as a contractor. In 2015 and 2016, he agreed to contracts to provide goods and services to a number of customers and accepted deposits from these customers in advance. In May of 2016, after Mr. Kroone failed to fulfill his obligations to these customers, he was charged with defrauding them of the deposits that they paid to him in good faith when they entered into the contracts with him for supplies and services that were not rendered by him. Mr. Kroone has never returned any of the deposit money.
2Mr. Kroone was also charged with defrauding "Cash 4 You", a cheque cashing business, for depositing cheques to himself from a closed business account. Half way through the trial with respect to all of these charges, he pled guilty to the facts involving the frauds of "Cash 4 You" but he continued with the trial on the other counts with respect to his business dealings with his customers.
3The Crown called a number of witnesses who described their business dealings with Mr. Kroone and their subsequent losses as a result of those dealings. The Crown's case was not significantly contested by Counsel. Mr. Kroone testified in his own defence and admitted to taking deposits from these customers and not providing either the goods or the services that he contractually agreed to provide to them. He disputed that this conduct was fraudulent because, when he initially entered the contracts, he intended to complete them. Finally, the defence called another one of Mr. Kroone's customers to testify about a big job that he was working on during the spring of 2016 in spite of promising his other customers that he would prioritize their jobs.
4Although the trial commenced in November, part way through Mr. Kroone's evidence and with an 11(b) waiver, both Defence and the Crown requested an adjournment of the trial in order for Mr. Kroone to make restitution to the complainants to resolve this matter. The trial was adjourned for two months for Mr. Kroone to return with proof of payment of some of the restitution. Despite his assurances that the restitution would be paid, Mr. Kroone did not pay any of the outstanding debts to any of the complainants. As a result, the trial was set to continue in March.
5Counsel conceded that two of the named complainants were deprived of their deposits because of Mr. Kroone's unfulfilled obligations. Nevertheless, he submitted that the Crown had not proven the offences as alleged in the Information. The Information alleges three different counts of defrauding three different customers of their deposits on specific dates. The dates alleged in each count are the dates when each of the contracts were entered into by Mr. Kroone and the complainants.
6Counsel advanced two related arguments with respect to the wording of the Information and how that impacts the Crown's burden of proof. First, Counsel submitted that, if the Crown's theory was that Mr. Kroone took the deposits and failed to deliver on the goods and services over a period of a time, then the Information should have alleged a time frame as opposed to a single date of the first date of the contract. The Information should have alleged something akin to a theft by conversion. As a result of the Crown's failure to allege a time range for each fraud, Counsel submitted that the Crown has failed to prove the offences as set out in the Information. Secondly, Counsel argued that, because Mr. Kroone originally entered into the contracts with the intention of fulfilling them on the specific dates alleged in the Information, the Crown has not proven essential elements of the offences. Counsel submitted that, in order to meet its burden, the Crown has to prove beyond a reasonable doubt that the actus reus and mens rea of fraud "crystalized" on the specific dates set out in the Information.
7For the reasons that will be outlined in the legal analysis, I completely disagree with Counsel's position with respect to the wording of the Information and the essential elements of the offences.
8It is important to outline the background facts in order to contextualize the applicable legal principles including some of the facts with respect to the admitted fraud committed by Mr. Kroone involving "Cash 4 You". Each of the allegations must be considered within the context of the whole of the evidence.
B. Evidence
i. Cash 4 You
9The first witness called by the Crown, Ms. Katherine Safranko, was the branch manager of "Cash 4 You" which is a financial business that cashes cheques for individuals for a price. Ms. Safranko provided the Court with business records detailing her company's interactions with Mr. Kroone. These records, as well as other records with respect to Mr. Kroone's business, were introduced and filed as exhibits pursuant to the Canada Evidence Act. As a result, the contents of the records can be relied on for the truth of their contents.
10Exhibits 3 and 4 were documents produced in the ordinary course of business by "Cash 4 You" employees. Exhibit 3 provided photographic evidence that Mr. Kroone was a customer of "Cash 4 You". He attended their business twice in one day on November 1st, 2015 and cashed two cheques which were both Canada Trust cheques with the same account number. One cheque was dated for October 31st, 2015 in the amount of $1000 and the second cheque was dated November 1st, 2015 in the amount of $1200.
11Both cheques did not have any pre-printed identification information on them, rather, there were handwritten entries on the top left corner that the payor was TCF Contracting and the payor's name was Leonard Gray. The payee was the Cement Finisher. Exhibit 2 established that Mr. Kroone was the sole proprietor of a business called the Cement Finisher. This business was registered in July of 2014. It was one of the business names that Mr. Kroone used with each of the complainants on the other counts in this matter. In contrast, the Crown also provided proof that the business name on both cheques for the payor, TCF Contracting, as noted in Exhibit 2, was not a registered business and there was no history of incorporation of any such company.
12During the trial, Mr. Kroone explained that Leonard Gray is his brother and he is also his employee for his company "the Cement Finisher". Evidence was also introduced during the Crown's case with respect to the other counts that TCF Contracting was the other business name that Mr. Kroone used for his business, The Cement Finisher. For example, Exhibit #8 was tendered as a business record for the truth of its contents. It was an invoice that Mr. Kroone prepared for one of the other complainants, Ms. Biswas. The name of the company that was indicated at the top left hand corner was "The Cement Finisher" with a logo underneath it in bold letters of "TCF Contracting" in "Oshawa, Ontario". In some of the written exchanges between Mr. Kroone and some of the other complainants, he signed them as TCF Contracting. TCF is obviously an acronym of (T) the (C) cement (F) finisher.
13Mr. Kroone testified that he was the sole author of these quotes and the only person responsible for the contents. As noted, he testified that he employed a couple of workers to complete his job including his brother Leonard Gray. These two cheques that he admitted were fraudulently cashed at "Cash 4 You" were allegedly written by his brother, who is his employee, from TCF Contracting. Effectively, an employee of Mr. Kroone's company, wrote a cheque from Mr. Kroone's company, to a different name for the same company that Mr. Kroone cashed for himself.
14The facts with respect to the "Cash 4 You" fraud are relevant with respect to this Court's consideration of Mr. Kroone's credibility. Mr. Kroone was asked while he was testifying what he did with the deposit money from his customers and he denied that he used it to pay himself from his company. When asked how he supported himself, he claimed that he relied on family to help him and his saving from the year prior. That statement was not true, at least in part, he didn't pay himself legally from his business accounts. He paid himself fraudulently from a closed account from his company.
15Mr. Kroone's admitted conduct with respect to "Cash 4 You" and the business records that were filed are also relevant when assessing the evidence overall because it provides background information about his financial instability in 2015 leading into 2016. It is apparent that Mr. Kroone began experiencing some financial issues with "Cash 4 You" and returned cheques beginning in August of 2015. In November, Mr. Kroone fraudulently cashed two cheques around the same time that he entered into a business contract with Mr. Liscio, one of the named complainants, and accepted deposits from him. Based on the business records about his banking issues and these two cheques, it appears that he was having financial difficulties with his business.
16Exhibit 4 was the "returned item customer summary" from "Cash 4 You". Ms. Safranko explained that these records were produced by employees during the ordinary course of their business and the notes recorded in the far right hand column were entered into their computer system, normally, simultaneously as the worker was dealing with a client or reviewing a matter.
17In terms of the two cheques that were the subject of charges on the Information, the employee who accepted both cheques violated the company policy by accepting a second before the first one cleared. Mr. Kroone benefited from this employee's error. Both cheques returned on November 5th because they were issued from bank accounts that were closed. The cost of each returned cheque was $50 which means that there was a total loss to "Cash 4 You" of $2300.
18Despite multiple attempts to recover the money, "Cash 4 You" has not been reimbursed by Mr. Kroone. Pages 19 through to 1 of the business records, which were chronologically backwards, demonstrated the multitude of times that "Cash 4 You" tried to contact Mr. Kroone to obtain the funds that they had been deprived of directly by Mr. Kroone. On November 5th at 1:58 p.m. an employee spoke directly with a person who identified himself as Mr. Kroone on the phone. The recorded explanation that Mr. Kroone provided to the employee for the cheques being written on closed accounts was that "the guy who wrote the cheque for him must have grabbed his old chqs by accident… but he said come pay $1000 today and pay the rest by the end of the week. Told him this would become a legal matter if not paid. Sd he'd be in before we close, probably by 7 pm". Since "the guy" who he claimed wrote the cheque was his employee/brother from his own company, Mr. Kroone's explanation was not true. Despite Mr. Kroone's assurances to "Cash 4 you", he did not attend or repay the money. The next 18 pages of the records were devoted to dozens of calls and letters to Mr. Kroone to secure the return of the funds to no avail.
19Mr. Kroone changed his plea of not guilty that was entered on the first date of the trial to a plea of guilty to count 7 on the second day of the trial and accepted responsibility for one of four offences with respect to this criminal conduct but he admitted all of the evidence with respect to the frauds involving "Cash 4 You". As a result of that plea and the finding of guilt, this Court can consider this conviction for an honesty offence when assessing his overall credibility as well as the fact that this admitted conduct contradicted aspects of his evidence.
ii. Context and Timeline of the Disputes Charges in the Information
20In terms of the balance of the alleged offences, the Crown conceded that they had not proven their case beyond a reasonable doubt with respect to one of the customer complainants, Ms. Biswas. It is nevertheless important to review her evidence to contextualize each of the allegations within a timeline of events.
21The Information alleges that, on or about specific dates, Mr. Kroone committed frauds with respect to each complainant. The dates reflected when each of the customers initially interacted with Mr. Kroone and secured his services:
| Cash 4 You | Oct. 31st and Nov. 1st, Counts 4 to 7 |
| Mario Liscio | November 15th, 2015, Count 1 |
| Natasha Coletta | March 13th, 2016, Count 3 |
| Snigda Biswas | March 19th, 2016, Count 2 |
22Mr. Kroone was ultimately charged in May of 2016 and released on a promise to appear on May 22nd, 2016. His first court appearance when he received his disclosure was on June 15th, 2016.
23It is essential to review the overall context of Mr. Kroone's business dealings during the period of time from the first contract with Mr. Liscio in November of 2015 to the contracts he entered into with the Coletta's and Ms. Biswas in March of 2016 and his conduct up to and including May and June of 2016 in order to understand the deception and misrepresentations that lead to securing each of these individual contracts and their deposit money.
iii. Contract with Mario Liscio
24In November of 2015, Mr. Kroone contracted to build a basement entrance for Mr. Liscio's home. They agreed to a price of $4500 which included the supplies and labour. Mr. Liscio provided a down payment of $2000 to Mr. Kroone for the supplies and labour for his job. The contract was entered into on November 15th, 2015. During their discussions, Mr. Liscio was led to believe by Mr. Kroone that his job was to commence in the fall of 2015 but, if the weather turned cold, it was to commence in the spring of 2016.
25The day after their agreement, Mr. Kroone sent an email assuring Mr. Liscio that he was in top of things. He wrote that he already "picked up the door" and some other supplies for the job but he claimed that he was waiting for a permit before commencing this project. Mr. Liscio diligently followed up with Mr. Kroone to make sure the work would get done. The phone number that Mr. Kroone initially provided him was not in service so Mr. Liscio continued to email him. The emails were filed as exhibits during the trial. As a result, there is a written record from the fall of 2015 until after Mr. Kroone was charged in May of 2016 of Mr. Kroone's string of broken promises and excuses to Mr. Liscio.
26Mr. Kroone provided Mr. Liscio with a number of excuses, which were not weather related, for why he couldn't get the job started in the fall and into the winter. In November, he claimed that his friend who worked for him, Lenny, was in ICU. Based on all the evidence heard during the trial, the only reasonable inference with respect to the employee named "Lenny" who Mr. Kroone used as an excuse to delay the commencement of Mr. Liscio's job, was that this was the same Leonard Gray that he used for the cheque cashing fraud. Mr. Kroone's other excuses included claims that the permit he submitted didn't pass and then he needed additional funds for an engineer's drawing to get the permit issued.
27Despite the purported delays to obtain a permit, Mr. Kroone assured Mr. Liscio in writing that he would start digging on the 5th or 6th of December and, based on their correspondence and Mr. Liscio's testimony, there were no issues with the weather preventing commencement of the job. By December 12th, Mr. Kroone still hadn't done anything. Instead, he claimed in another email to Mr. Liscio that he called "15 times" to see if the permit was ready. Mr. Kroone told Mr. Liscio that he had another job that was going to start that Monday but he assured Mr. Liscio in writing that he would complete his job next. Once again, nothing was done.
28Finally, on December 21st, Mr. Kroone wrote "hey Mario, I got the permit" but now he claimed to have other problems that interfered with his work. Mr. Kroone claimed that his son threw his phone in the toilet and that he had to go to Vancouver on a trip but he said that on January 6th, he would be "good to go". He also wrote "sorry about all the delays. At least the good news is we are ready to go and move forward now". Not surprisingly, Mr. Kroone was never good to go. It was one unfulfilled promise after another.
29Mr. Liscio never received a copy of this engineer's drawing that Mr. Kroone claimed he needed to get the permit. Mr. Kroone's excuses continued throughout the winter explaining why he could not perform the services that he agreed to provide and for his lack of follow up. In February of 2016, Mr. Liscio advised Mr. Kroone in an email that he would be away from February 9th until April 9th. Mr. Kroone wrote back "we will start as soon as you get back. I'm sure everything will be good to go by then".
30When Mr. Liscio returned from his vacation, he promptly contacted Mr. Kroone on April 12th, 2016. Mr. Kroone responded the same day and advised that he was "in the middle of a big job… will be done right around May 1 and then we're going to be coming right over your house and getting your stuff done". As usual, Mr. Kroone did not follow up so Mr. Liscio emailed Mr. Kroone on May 8th, May 10th and May 12th but he did not receive a response. During the defence evidence, Mr. Kroone testified that he was working on other jobs during this period of time. He prioritized other jobs despite his pre-existing and long overdue contractual obligations to Mr. Liscio.
31Mr. Liscio persistently tried to contact Mr. Kroone to get him to perform the services that he agreed to perform for weeks after May 1st. Due to a complete lack of response from Mr. Kroone, Mr. Liscio went to the city to determine whether a permit had actually ever been issued for the work on his property. As far as he was made aware, there was no such permit ever issued for construction on his home. As a result, Mr. Liscio finally attended the police station and made a complaint on May 17th, 2016.
32To be clear, Mr. Kroone agreed to a contract wherein he committed to promptly perform a service for Mr. Liscio assuming there were no issues with the weather. There were no issues with the weather that prevented Mr. Kroone from doing Mr. Liscio's job for over 6 months, rather, it became apparent that Mr. Kroone took on new customers and chose to complete their contracts instead. In addition, the deposit money that was provided to Mr. Kroone by Mr. Liscio was to complete his job, to purchase his supplies and no one else's. Mr. Liscio certainly did not agree to his money being used to bank roll Mr. Kroone's other contracts, pay his employees for other work or finance his company.
33From November 15th, 2015 when the contract was entered until May 17th, 2016 when Mr. Liscio went to the police, 6 full months had passed and Mr. Kroone never did anything for Mr. Liscio. Mr. Liscio requested his deposit back a number of times from Mr. Kroone and Mr. Kroone did not return the deposit.
34On June 24th, after Mr. Kroone had been arrested for these offences, Mr. Kroone wrote an email to Mr. Liscio blaming him for his public humiliation and a host of excuses for why he didn't do what he promised, agreed and contracted to do. He promised in that email on June 24th, 2016, like so many of his other promises, to "get all of this fixed so my life is not ruined. I want to come and return your deposit and add on interest over the time period that I had you [sic] money." Mr. Kroone ended the email with stating "I will message you next week when I can bring you some money." Mr. Liscio responded that it was the best thing for Mr. Kroone to do was to refund his money.
35Mr. Kroone did not return any of the deposit money. Instead, Mr. Kroone provided more excuses in another email that he wrote on July 1st, 2016 and stated again "yes. I will return your deposit". Of particular note, in both of these emails Mr. Kroone did not reference any costs that he claimed during the trial that he incurred as a result of the Liscio job like paying for an engineer's draft or dropping off lumber. If Mr. Kroone had actually spent any money or invested any time on Mr. Liscio's job, he would have mentioned his costs in these emotional emails that detailed his excuses and decried his public humiliation.
36To date, Mr. Kroone has kept the two thousand dollars that he received from Mr. Liscio as a deposit for work that was to be completed for Mr. Liscio. Mr. Kroone admitted during the trial that he used Mr. Liscio's money to fund other projects and his business. Despite repeated promises to return Mr. Liscio's money, Mr. Kroone has continued to withhold Mr. Liscio's deposit money.
37During the cross-examination of Mr. Liscio, Counsel suggested that Mr. Kroone had actually purchased and dropped off some lumber for this job. Mr. Liscio firmly stated that did not happen and, after reviewing the whole of the evidence, I accept Mr. Liscio's evidence. Mr. Liscio explained that he had his own lumber and he asked Mr. Kroone to use that lumber to save some costs. The emails that were exchanged between Mr. Kroone and Mr. Liscio certainly supported Mr. Liscio's testimony. Mr. Kroone actually wrote in an email to Mr. Liscio on December 12th that he had "another small job to start Monday. It will go until Wednesday. Then we will move onto your job. It hurts me to look at ur material. A friend asked me why the door and lumber has been in the same spot for 3 weeks." There was no mention of delivering a single item in any of the emails, rather, Mr. Kroone wrote that he was looking at it, supposedly, wherever he was when he wrote the email. When Mr. Kroone's evidence is reviewed, it will become evident that even this email about purchasing a door was a lie that he told to Mr. Liscio to string him along and continue to delay completing his work.
iv. Contract with Ms. Biswas
38The Crown invited the Court to dismiss the counts involving Ms. Biswas because of some confusing aspects of their discussions and Mr. Kroone eventually performed some of the services that she contracted him to do after he was charged with the fraud. Ms. Biswas' evidence is nevertheless important because Mr. Kroone promised Mr. Liscio that he would be doing his job as soon as he completed the "big" job that he was working on in 2016, but he made the very same promises in the spring of 2016 to Ms. Biswas as well the other complainants, the Coletta's. It is within a review of the whole of the evidence that it becomes apparent that Mr. Kroone could not fulfill all of the promises and assurances that he was making to these customers yet he continued to secure deposits from them for contracts that, contrary to his assertions, he had no present intention of completing because he was committed to other customers during that same period of time.
39Ms. Biswas hired Mr. Kroone in March of 2016 to have some concrete work done on her yard. It was a significant job because the estimated cost was at least $7000 and he required her to deposit more than $3500 as well as some additional funds that totaled more than $4500 in deposits. Despite Mr. Kroone's promises to her and assurances that her job was a priority for him, he delayed doing her job in March, April and into May of 2016.
40Ms. Biswas was so frustrated with Mr. Kroone's excuses for not completing her job that she went to the place where he was completing another contract to confirm that he was in fact actually working. She confirmed he was working on a concrete job around a pool which was the job that he completed for Ms. Philippa Mason in April and May of 2016. Ms. Mason was called as a defence witness.
41Mr. Kroone gave Ms. Biswas a host of excuses for not doing her job in a timely manner. He told Ms. Biswas that one of his friends/co-worker was either in hospital or had passed away or his girlfriend was working and he had to watch their child. Ultimately, she also went to the police and made a complaint in May of 2016.
42Mr. Kroone eventually, partially, completed Ms. Biswas' job after she made a complaint to the police. When he finally did some work for her, he appeared sporadically and the job took longer than expected. Mr. Kroone did not complete the job because he told her that he would not continue after he realized that she was one of the complainants in the criminal charges.
43Ms. Biswas presented as a lovely woman who was truly disappointed with Mr. Kroone. She explained that his conduct caused her to suffer a "very strong mental toll", so much so, that she just didn't want to deal with him anymore. She also explained that her dealings with Mr. Kroone caused some marital tension and her husband no longer trusts her with making these kind of arrangements.
v. The Coletta Contract
44Adam and Natasha Coletta were introduced to Mr. Kroone by Adam Coletta's sister, Amanda. Amanda retained Mr. Kroone to do some work for her in the spring of 2016 so the Colettas decided that they wanted him to do a stamped concrete patio in their backyard. Mr. Kroone attended at their home and agreed to do their patio in March of 2016, around the same time (within a matter of days) he also committed to do the job for Ms. Biswas and all while he was already committed to doing the job for Mr. Liscio when he returned in April. Unbeknownst to either Ms. Biswas or the Colettas when they agreed their contracts with him, Mr. Kroone had also contracted to do two other major construction jobs for Mr. Chris MacDonald and Philippa Mason that would occupy all of his time that spring.
45Despite clearly not being in a position to perform the work, Mr. Kroone continued to take deposits from these prospective customers. Mr. Kroone quoted the Coletta's $4500 for their job and then he asked them for an initial deposit of $2100. They added LED lighting as part of the job so Mr. Kroone requested additional monies for this lighting.
46In total, the Coletta's provided Mr. Kroone with $3100 as a deposit for their contract and for their materials. He assured the Coletta's that he would start their job within a few weeks of paying their deposit. They agreed to this contract and paying these deposits because of Mr. Kroone's guarantees of his availability and commitment to their project. Once again, Mr. Kroone never dropped off any materials for their job, he never did any work for them, he took their money and he used it for his own purposes and he has never repaid them. He did not have their permission or consent to use their deposit money for anything other than their job.
47Mr. Kroone cavalierly admitted that he put the Coletta's deposit money in an envelope at his home and then began to use it as he needed it for various reasons none of which related to their job. In addition, it should be noted that the LED lighting that was supposed to be purchased for their job was not delivered to them. During the defence evidence, Ms. Mason (the big job that Mr. Kroone did complete in 2016) testified that Mr. Kroone threw in some extras during his work on her property in April and May of 2016 which included free LED lighting. He told Ms. Mason that the LED lights were left over from another job. The Coletta's paid Mr. Kroone for LED lighting around the same time that Ms. Mason received the benefit of free LED lighting. Of particular note, Mr. Kroone confirmed in an email dated April 7th to the Coletta's that he bought the LED lighting and forms for the their job but it appears that he used LED lighting for the Mason job. Although Mr. Kroone initially denied that he had actually purchased LED lights for the Coletta's, by the end of his cross-examination, Mr. Kroone admitted that he did and that he used some of the LED lighting on other jobs although he claimed that he could not recall which jobs.
48Mr. Kroone gave the Coletta's all sorts of excuses for why he couldn't do their job which prompted Ms. Coletta to message him on April 29th: "I understand that you have been hit with some bad luck lately im really sorry to hear that. I know there have been some delays with Amanda's job so given your situation I can totally understand if u feel that u might have too much on your plate right now." She asked him if he would like to cancel their job and refund their deposit money of $3100 and rebook at another time with no hard feelings.
49In March, April and May of 2016, Mr. Kroone knew that he was already committed to completing the Liscio job, he was working on or just completing a significant contract for Mr. MacDonald, he was committed to Ms. Biswas and he was doing the Mason job not to mention Amanda Coletta. Mr. Kroone could have backed out and refunded the Coletta's their money because he was overbooked. Despite knowing that he was not actually available, he assured Ms. Coletta on April 29th that "I am doing Amanda's tomorrow and you guy at some point during the week". Ms. Coletta followed up again on May 4th, May 8th, May 9th and 10th. Each time Mr. Kroone assured her in writing that he was coming to do their job and each time he did not show up.
50Finally, on May 10th, Adam Coletta emailed Mr. Kroone and demanded the return of their deposit money. Although Mr. Coletta did not testify because he is gravely ill, Mr. Kroone agreed that he received this email and he acknowledged the contents to the email. Mr. Coletta wrote "since April 7th 2016 you have made numerous commitments that you have been unable to follow through on" and "aside from some less than ideal weather conditions, you claim to have had issues in your personal life that were impacting your ability to meet timelines".
51Mr. Kroone consistently lied to the Coletta's about his availability and his commitment to them. When I review his evidence, it will be apparent that he was able to work during the period of time that he was committed to doing work for Ms. Liscio, Ms. Biswas and the Coletta's but he chose to do other lucrative jobs instead. Adam Coletta insightfully wrote "this job has not ranked high on your priority list and as a result no work has been completed to date. Your disregard for our time is evident."
52Adam Coletta was unable to attend court to testify because he has leukemia and he is undergoing chemotherapy treatments. Natasha Coletta was required to attend court, despite her personal crisis, to speak on behalf of her husband to the best of her ability. Despite their circumstances and the suffering of this family, Mr. Kroone was still not moved enough to show compassion and return their funds that he took for work that he never performed and goods that he never provided to them. He has continued to withhold their deposit money despite repeated requests to return it to them.
vi. The Mason Contract – Defence Evidence
53Although Ms. Mason was called as a witness for the Defence, her evidence assisted the Crown's case. Ms. Mason confirmed that Mr. Kroone agreed to a contract with her in February of 2016 and the start date of the job was supposed to be in April of 2016 depending on the weather. Mr. Kroone committed to a significant contract with Ms. Mason when he knew he was already committed to completing Mr. Liscio's job in April. In addition, based on the information from Ms. Mason, it is apparent that Mr. Kroone agreed to contracts with Ms. Biswas and the Coletta's in March of 2016 when he knew that he had the Liscio contract outstanding, he was already committed to completing Mr. MacDonald's job and he was committed to doing Ms. Mason's in April of 2016.
54Mr. Kroone secured the contracts with the Coletta's and Ms. Biswas by deceitfully representing himself to be available. He accepted their deposits in March of 2016 even though he was not in a position to complete the work for them. Mr. Kroone prioritized the Mason job over his outstanding obligations to Mr. Liscio. I note parenthetically, Ms. Mason's job was the most lucrative for him. According to the invoices filed, she paid Mr. Kroone $17310.48.
55Ms. Mason testified that Mr. Kroone was not able to commence her job until later in April due to some weather related issues and he finished it near the end of May of 2016 which was around the time that he was charged for these offences.
vii. The Defendant's Evidence
56Mr. Kroone testified in his own defence. He has a criminal record for honesty offences and he pled guilty in the middle of the trial to an offence of dishonesty.
57It became evident throughout the trial and his correspondence with the various victims that Mr. Kroone is an unabashed liar. He misrepresented his commitment and availability to the complainants, he consistently offered false promises and provided fake excuses to them. As a witness, he presented very poorly with an air of smugness, entitlement and complete apathy with respect to taking deposits from prospective clients, diverting their funds without their authorization for his own purposes, not performing the work or supplying the goods that the complainant paid for in advance and continuing to withhold their funds. Mr. Kroone's answers were often flippant and demonstrated a marked indifference towards the financial losses and personal circumstances of the victims of his crimes. More importantly, he repetitively contradicted himself, his answers were internally and externally inconsistent with the other evidence and it was apparent that he lied while he was testifying.
58Mr. Kroone stated that he runs a business, The Cement Finishers, and he regularly employs his brother Leonard Gray, whose name popped up various times throughout the evidence and one or two other employees. As noted, the "Lenny" who Mr. Kroone referred to as "the guy who worked with him" in the "Cash 4 You" fraud, was the same person who he claimed was responsible for the delays with both the Liscio job in November and Biswas job in March because of "Lenny's" alleged hospitalization and/or death. Despite "Lenny's" purported grave illness, Leonard Gray was alive and well and still working for Mr. Kroone in May of 2016 because Mr. Kroone testified that Mr. Gray was the person who helped him with finally doing the Biswas job after he was charged with these offences.
59Mr. Kroone casually admitted that he entered into contracts, provided invoices and accepted substantial deposits of thousands of dollars for the good and services listed in those invoices from Mr. Liscio, Ms. Biswas and the Colettas. He admitted that these customers gave him this deposit money based on his assurances that he would purchase goods for them and render services for them but he immediately and blatantly diverted their money to use for his own purposes. He either put the money in his business account or kept it in an envelope at home and used it for various reasons none of which related to the jobs that he was being paid to do by the complainants. Mr. Kroone didn't seem to think that there was anything wrong with misrepresenting his availability or taking money from clients for specific purposes listed clearly in invoices and then using their money for other clients and other contracts and other purposes without their knowledge or authorization. He also admitted that he has withheld the deposits from Mr. Liscio and the Coletta's.
60Mr. Kroone testified that he entered into a contract with Mr. Liscio in November of 2015. He confirmed that he received a deposit from him to do work for him and purchase items for the work that he committed to do for him.
61Mr. Kroone claimed that he dropped off lumber to start the Liscio job but that it got mixed in with Mr. Liscio's lumber. Mr. Kroone's evidence was completely inconsistent with the email that he wrote to Mr. Liscio on December 12th, 2015, wherein he wrote that he was forlornly looking at Mr. Liscio's lumber and his door wherever he was at the time when he wrote that message and he claimed that he was frustrated with not getting the permit to start the work. He went so far as writing that "it hurts to look at ur material". In addition to contradicting what he wrote in emails, he later contradicted himself when he was asked about buying supplies for the Colletta job during questions about the LED lighting. To address the allegation that he bought lighting for the Coletta's and used it for Ms. Mason instead, he testified that "I never purchase materials until the start date". Mr. Kroone's counsel asked him why not and he responded "because when I start the job that's when I get everybody's done. I'm too busy usually with other people's jobs". According to his own evidence, since he had not started the Liscio job, he would not have purchased any materials for him, including any lumber or a door. In fact, during the first few questions in cross-examination, Mr. Kroone admitted that he never purchased any of the items listed on the contract for Mr. Liscio (which included the door, plywood and four by four's) because "we hadn't negotiated any start date". Considering Mr. Liscio's evidence, Mr. Kroone's emails and Mr. Kroone's other evidence, Mr. Kroone was not being truthful with the Court when he testified that he dropped off some lumber for the Liscio job.
62Mr. Kroone also testified that Mr. Liscio's job was delayed because he needed an engineer's draft and he couldn't get the permit to do the job without it. Mr. Kroone testified that he did not get the draft from the engineer until mid-January of 2016. Once again, his testimony was irreconcilable with his written statements in an email to Mr. Liscio in the end of December of 2015 wherein he stated: "hey Mario I got the permit". He went on to explain that he had a trip planned to Vancouver but he wrote: "we will be good to go forward on Monday January 4th". There was no mention of any difficulty with an engineer's draft in this email since he claimed that he already secured the permit in December of 2015. Moreover, Mr. Kroone wrote on December 21st "sorry about all the delays. At least the good news is we are ready to go and move forward now". Contrary to his evidence, he was not delayed until January of 2016 because of the engineer's draft.
63It became evident that Mr. Kroone's problem while testifying was that he has told so many lies to so many people, verbally and in writing, that he couldn't keep any of them straight. When he was asked during his evidence for a copy of the engineer's draft that he claimed he secured for the Liscio job, he told this Court that the drawing was in his old truck that caught on fire. Although he could have obtained copies of these plans from the city, if they existed, he chose not to do so. He claimed that he paid for these plans from his business account but he didn't have the records. As noted, he didn't mention any costs for a draft when offering to return Mr. Liscio's deposit.
64Mr. Kroone provided other excuses for not attending Court with any financial documents to support any of his evidence. He stated that the engineer that he retained was someone he didn't know and he found him on Kijiji. He claimed that his accountant's phone number was out of service and he was unable to reach her. He also stated that his records were at his girlfriend's home but he was not able to communicate with her until recently. Of course, Mr. Kroone does not have to prove anything or bring any confirmatory evidence and the burden of proof remains on the Crown. Nevertheless, I find that his claims about needing and securing an engineer's draft were part of a transparent ruse to explain away the unacceptable delays with doing the job for Mr. Liscio.
65Mr. Kroone testified that his intention was to get the job done for Mr. Liscio after he came back from Florida "after my next job if I was doing one at the time". Despite this expressed intention to the Court, Mr. Kroone committed to Ms. Mason in February to do a substantial job for her in April of 2016 that was scheduled to take weeks even though he was already committed to work for Mr. Liscio. When Mr. Kroone was confronted with the fact that he was supposed to do Mr. Liscio's job when he returned in the beginning of April, he initially testified that Mr. Liscio never told him when he was returning from his trip. The Crown challenged him with the email from Mr. Liscio that clearly stated Mr. Liscio's return date and Mr. Kroone's written reply to that email. In response to a blatant contradiction, Mr. Kroone changed his evidence to "I guess I overlooked it" and then within a breath of the first change in his response, he gave another explanation: "I didn't realize the date as the winter months went on".
66Mr. Kroone also testified that Mr. Liscio never contacted him when he returned from his trip. Once again, there is written proof to the contrary. Mr. Liscio emailed Mr. Kroone on April 12th that he was back and ready to discuss the start of the project. Mr. Kroone responded that same date claiming that he was in the middle of a really big job that would be done around May 1st and then he was going to come right over to Mr. Liscio's house to get his job done. Ms. Mason testified that Mr. Kroone did not even start her job until the end of April of 2016.
67Despite what Mr. Kroone said while he was testifying and what he wrote in messages to both Mr. Liscio and the Coletta's, Mr. Kroone had no intention of starting the Liscio job in April or anytime soon in May because he also testified that he assured the Ms. Mason in February that he would start her job right after the job that he was working on for another person, Chris McDonald. Mr. MacDonald was another customer that Mr. Kroone testified he was working for during the same period of time in the spring of 2016.
68Mr. Kroone was unable to keep his timelines straight during his evidence. He claimed at one point during his evidence that the MacDonald job went from February 10th to March 20th but he later testified the MacDonald job went from February to April. He claimed that he moved on to the Mason job after the MacDonald when the weather permitted but he also insisted that he started Ms. Mason's job in March. It is evident that he was completely occupied with both of these jobs in March, April and May. Nevertheless, Mr. Kroone entered into contracts with Ms. Biswas and the Coletta's by falsely assuring them that he would do work for them in March and April as well as work for Mr. Liscio in April and May not to mention the job for Amanda Coletta. Mr. Kroone continued to make misrepresentations to his customers. He deceived each of the complainants about his availability and commitment to them to secure the contracts, get their deposit money and then strung them along.
69When the Crown asked Mr. Kroone if he ever returned Mr. Liscio's money, without skipping a beat, Mr. Kroone testified that Mr. Liscio "never asked me to return his deposit. I never received an email saying that." First of all, that was a ridiculous response considering he should have returned the money without being asked since it did not belong to him, it was not owed to him, he secured it by misrepresentations and he did nothing to earn this money. Secondly, there is independent evidence that Mr. Kroone was also lying about this issue while testifying. The Crown confronted him with his written email exchange with Mr. Liscio in June and July of 2016 wherein he promised to return his deposit.
70When Mr. Kroone was confronted again about not returning Mr. Liscio's deposit money, Mr. Kroone switched stories and claimed that he didn't return it because he spoke with the investigating officer and he told him that he could not speak to any of the victims so he immediately ceased any contact including contact about the return of the deposits. There were no terms of bail that prevented Mr. Kroone from speaking with any of the complainants or returning their money. Mr. Kroone's fallacious explanations for not returning the deposit money were easily refuted by the Crown. Mr. Kroone confirmed that he received his disclosure on his first appearance of June 15th, 2016, which contained the names of the victims including Mr. Liscio. He testified that he spoke with the detective 2 or 4 days after his first appearance and that is when the detective told him that he could not communicate with the victims and that was why he claimed that he did not pay Mr. Liscio back. Once again, his evidence on this issue was contradicted by the same emails that he wrote to Mr. Liscio in the end of June and the beginning of July after he had been allegedly warned by police not to contact the complainants. Obviously, the Officer's alleged prohibition on communication did not prevent him from communicating with Mr. Liscio or returning his money since he promised Mr. Liscio in both emails that he would return the money after he was supposedly warned by the police not to speak with him.
71Throughout Mr. Kroone's evidence, from beginning to end, he would lie, get caught in a lie and then lie again. It was appalling that he had so little regard for his oath or the affirmation to tell the truth. He had that same lack of regard with respect to lying to his customers. It is apparent from Mr. Kroone's evidence that he deceived the complainants by making empty meaningless promises about his availability and dishonestly assured each of his clients of their individual importance and priority to secure their business. He intentionally chose to start the MacDonald and then the Mason jobs knowing that he was shirking his commitments and contractual obligations to Mr. Liscio, Ms. Biswas and the Coletta's.
72Mr. Kroone testified that he commenced the Mason job earlier than anticipated in the end of March 2016 immediately after he finished the McDonald job and he worked there for three weeks which would have been mid to the end of April when they added more to the contract. Later on in his evidence, he claimed the Mason job went from the end of March until May 19th or 20th. He claimed that he worked on the Mason job with three to six employees. In contrast, Ms. Mason, who was a defence witness and the person who actually hired him, testified that Mr. Kroone was supposed to start working on her house on April 10th, not March, but the job got pushed back until April 20th due to "crappy" weather conditions. When he did finally start the job, he was the only person there and occasionally, he had one or two employees with him.
73I accept Ms. Mason's account that Mr. Kroone did not start working for her until closer to the end of April. I also find that Mr. Kroone was deliberately exaggerating the size of the Mason job to try and explain his way out of his many unfulfilled contractual obligations to his other customers and to justify withholding their deposits.
74Even though Mr. Kroone knew that he was unavailable because he agreed to do additional work for Ms. Mason, he sent texts to the Coletta's in early May stating "I'm pouring Amanda's Friday morning" and "will be there were just tying up some loose ends finishing a sealing a job we poured earlier in the week were so far being with the bullshit weather last month and all the other stuff that happened to me its been so tough just to keep up with everything". Near the end of his cross-examination, Mr. Kroone admitted that he was already working on the MacDonald job and committed to the Mason job when he agreed to do work for Ms. Biswas and the Coletta's and he still had to do Mr. Liscio's job. Mr. Kroone just kept taking on more jobs and accepting more deposits even though he knew that he could not complete them when he promised to complete them. I do not accept his evidence nor does it raise a reasonable doubt that he intended to immediately fulfill any of these other contracts or that, due to unexpected events on these other jobs, the delays were not his fault or unintended. I find that Mr. Kroone deliberately prioritized the more lucrative jobs and intentionally mislead his other customers to secure their business and get their deposits.
75The evidence that gave the Court significant insight into Mr. Kroone's absolute apathy towards his contractual obligations to his clients was when he testified about the job that he was hired to do for the Coletta's. By his own account, their job would have only taken 4 days. Mr. Kroone initially stated that "I do every job that I get" but then he changed his evidence to "I intend to" and then "I try to". Contrary to his claims, he did not try to do anything for Mr. Liscio or the Coletta's other than taking their money.
76Mr. Kroone testified that he lied to Natasha Coletta to appease her growing concerns. "I gave her a couple of dates, I mean, I was really busy with a job, it was raining a lot in the spring, I may have fed her some bull just to prolong it a bit more". He admitted that he would tell her that he would start the next date and "I knew that I probably wouldn't be starting for a week, two weeks". Nevertheless, he took their money, put it in an envelope, took it home with him and then spent it on his own needs. When his Counsel asked him if he did anything to earn that money, he flatly answered without an ounce of apparent regret or shame "no, I did not". Once again, he claimed that he did not get to do the Coletta job because he got charged just after he finished the Mason job.
77It was absolutely clear from Natasha Coletta's evidence that their relationship with Mr. Kroone ended on very bad terms. In an unequivocally worded email dated May 10th, 2016, Adam Coletta fired Mr. Kroone. He wrote "unfortunately at this time, we have lost confidence in your ability to do the job and am requesting return of our $3100 deposit. Though we may be able to appreciate your recent shortcomings, we do expect a level of professionalism that you have been unable to deliver on." He attached a link to their receipt, requested a prompt reply and ended the email with "we would prefer to avoid escalating this situation, if possible."
78Despite this email and the Coletta's subsequent police complaint, Mr. Kroone claimed that he spoke with Mr. Coletta the day after he received the May 10th email. He claimed that he apologized for his conduct and they agreed to work it out. This purported conversation with Mr. Coletta was never put to Mrs. Coletta. Moreover, it is completely inconsistent with the content of Mr. Coletta's last email and Mrs. Coletta's evidence about the abrupt termination of their relationship and the uncontested fact that the Coletta's attended the police station to make a complaint 2 days after this last written communication. Mr. Kroone knew that Mr. Coletta was not available to testify to rebut his claims about a subsequent conversation because he has cancer. I specifically reject his account about any conciliatory conversation with Mr. Coletta and I find that this evidence was a fabrication to avoid being held to account for his misconduct.
viii. Summary
79It is obvious from my review of the defence evidence that I do not believe Mr. Kroone's account of the unfolding of events nor does his evidence raise a reasonable doubt in any way. I accept the veracity and accuracy of each of the complainants' accounts that were essentially unchallenged in cross-examination. I reject any part of Mr. Kroone's evidence that contradicted their accounts. Ironically, Mr. Kroone didn't really dispute most of the allegations although he tried to paint his conduct in a much rosier light and blame unforeseen job extensions and other excuses for his failures to complete these contracts. I do not accept his explanations for his conduct. I also do not accept that he intended to complete the contracts for Mr. Liscio, Ms. Biswas or the Coletta's in the manner that he agreed to complete them which was supposed to be in the immediate future.
80Mr. Kroone was solely responsible for quoting his clients and making assurances about his availability. The Cement Finisher or TCF was his company and he chose which jobs to do and when to do them. I accept that he solicited contracts from Mr. Liscio, Ms. Biswas and the Coletta's by misrepresenting his availability. Each of the complainants provided him with advance deposits, in good faith, in anticipation of the supplies and services that he assured them that he could promptly provide. He deceitfully led them to believe that their work was a priority for him.
81Mr. Kroone was the sole recipient of the deposits from each of the complainants that he received as a result of agreements based on his false representations. After he took their money for the purchase of their supplies and the provision of their services, he immediately converted their money to his own use and not for the purposes that he received it. I find that Mr. Kroone's conduct of diverting their deposit money to his own use put his customers' deposits at risk since he spent that money for other purposes before purchasing any of their goods or rendering them the services that they paid for in advance. Considering that he overbooked himself, he knew that he was a risking their deposit money since he could not promptly complete their contracts.
82I find that Mr. Kroone deliberately and consistently mislead his prospective customers about his availability, to use his words he fed them "some bull", in order to secure their business, get their deposits and then use those deposits to bankroll his own company as opposed to the jobs that he promised them. He diverted their deposits to his own use without their permission and he has withheld Mr. Liscio's and the Coletta's money.
83Despite Mr. Kroone's indisputably deceitful conduct and the obvious deprivation to Mr. Liscio and the Coletta's, I must still address Counsel's arguments that the dates alleged in the Information restrict the Court's consideration to Mr. Kroone's mind set on the date that he entered these contracts as opposed to what occurred over a period of time and whether the crown has proven the actus reus and mens rea of fraud beyond a reasonable doubt.
C. Legal Argument
i. The Effect of the Dates Alleged in the Information
84Counsel submitted that the Crown's theory was that these frauds were similar to a theft by conversion but the counts in the Information did not allege a time frame for the commission of the offences, rather, each count specified the date when the contracts were agreed to by the complainants. Since the Crown cannot prove the offences occurred on the specific dates alleged, the Crown cannot meet its onus to prove the case beyond a reasonable doubt.
85Similarly, Counsel argued that, in order for the Crown to prove these charges beyond a reasonable doubt, the Crown must establish that the mens rea and actus reus of each of the fraudulent transactions "crystallized" on the specific date alleged in the Information in order to secure a conviction. Since Mr. Kroone claims that when he entered these contracts on the dates alleged in the Information that he originally intended to complete them, the Crown has not proven the mens rea of fraud.
86First, I do not accept that Mr. Kroone intended to complete the contracts on or about the dates he entered into them in the manner that he agreed to complete them. He deceived the complainants about his availability and commitment to them. Secondly, I requested that Counsel provide the Court with a single case or refer to a provision in the Criminal Code that supported his submission that the Crown is restricted to proving the specific date alleged in the Information. I was not provided with any case law by either Counsel or the Crown.
87It is a fundamental proposition of law that the date alleged in the information is not material except in rare circumstances or to address the time limitations for summary conviction offences. Mr. Kroone was aware of the nature of the allegations against him before he was even charged. He knew that each of the alleged frauds related to deceitful business practices and accepting deposits from specific customers for good and services that he did not purchase or render despite entering into contracts to do so.
88While the wording of each individual count in the Information does not specify a time range when these frauds occurred, Mr. Kroone had fair notice of each of the individual offences with which he was charged. Each count provided sufficient factual details that afforded reasonable information with respect to the alleged acts, the offences charged and the factual transactions. Mr. Kroone was aware of each complainant, the jurisdiction and the date when each of the unfulfilled contracts commenced.
89Counsel made an informed choice not to bring a pre-trial motion to quash the information for any defect on its face. Rather, Counsel waited until after the Crown closed its case to raise the issue that the Court should be restricted to considering Mr. Kroone's conduct and mind set on the specific dates alleged in the Information. While this is not a sufficiency argument, the case law that addresses the prerequisite contents of an Information are nevertheless instructive and determinative of this argument.
90In R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para 20, the Supreme Court of Canada held that an Information "must provide the accused with enough information to enable him or her to defend the charge." The Information must "describe the offence so as to lift it from the general to the particular." The counts in the Information in this case provide more than sufficient detail that particularizes each alleged offence.
91The Supreme Court of Canada described this type of objection to the wording of the Information as "overly technical and an unnecessary holdover from earlier times." The Court also specifically addressed what is required in an Information with respect to the date of the alleged offences:
It is apparent from these cases that what constitutes reasonable or adequate information with respect to the act or omission to be proven against the accused will of necessity vary from case to case. The factual matters which underlie some offences permit greater descriptive precision than in the case of other offences. Accordingly, a significant factor in any assessment of the reasonableness of the information furnished is the nature and legal character of the offence charged. It is also apparent, however, that in general an information or indictment will not be quashed just because the exact time of the offence is not specified. Rather, the matter will continue on to trial on the merits. While it is obviously important to provide an accused with sufficient information to enable him or her to identify the transaction and prepare a defence, particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose. It goes without saying, of course, that there may be cases where it is.
92The Supreme Court of Canada relied on a decision from 1918 wherein an indictment alleged a specific date when a sexual act had occurred and the accused had an alibi for that date. The child testified that the offences took place repeatedly over a period of time. The Supreme Court cited the following 100 year-old legal quote "[f]rom time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence". Likewise, in R. v. S.D., 2011 SCC 14 (CanLII), [2011] S.C.J. No. 14 the Supreme Court responded to a similar argument and cited with approval the Court of Appeal's finding that "trial fairness was not compromised ... The evidence accepted by the trial judge satisfied her beyond a reasonable doubt that the incident in question did in fact occur regardless of the exact time it took place".
93In addition to these binding decisions, the Criminal Code provides significant guidance. Section 601(4.1) states that a variance between the Information and the evidence is not material with respect to the time of the commission of the offence. More importantly and directly on point, section 583 of the Criminal Code which is entitled "certain omissions not grounds for objection" states that no count in an indictment is insufficient by reason only that:
(f) "it does not specify the means by which the alleged offence was committed".
94The Information is not insufficient in this case because it does not allege that these offences were committed over a period of time. Furthermore, section 586 of the Criminal Code specifically addresses fraud cases and states that "no count that alleges false pretences, fraud or attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means". Once again, the Information is not insufficient because it does not set out that the nature of the frauds commenced on the dates alleged with respect to each complainant and then continued over a period of time. Finally, section 581 of the Criminal Code states that the "substance of the offence" alleged must contain "in substance a statement that the accused committed an offence stated therein" and subsection (3) "shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to but otherwise the absence or insufficiency of details does not vitiate the count."
95Counsel did not address any of these provisions in the Criminal Code or why they would not apply in the circumstances of this case. There were no submissions made or evidence called about how the wording of the counts in the Information prejudiced Mr. Kroone or impacted his ability to make full answer and defence. Rather, as noted, Counsel's position was that the Crown is restricted to proving the date that he chose to specify in the Information. The Ontario Court of Appeal recently addressed a similar argument with respect to the single transaction rule in an Information in R. v. Kenegarajah, [2018] O.J. No. 682 (Ont. C.A.). The ratio of this decision is entirely dispositive of this issue:
27 In oral submissions counsel for Mr. Neshan submitted that these appellants were prejudiced because there were potential issues or defences that could have been raised, for example, the existence of a potential alternative suspect in relation to the 2001 AMEX activity. In my view, this argument fails to establish prejudice. Even assuming that any such potential defences existed, the appellants have not demonstrated that it was somehow not open to them to pursue those defences because of how the Information was drafted.
And further
29 It must be noted that the defence strategy at trial was simply to hold the Crown to the strict proof of its case. To paraphrase the conclusion of McLachlin C.J. and Charron J. in Katigbak, there can be no suggestion that the appellants in this case were not aware of the case they had to meet at trial, or that they were somehow hampered in conducting their defence. It is not sufficient to say, as counsel did in his oral submissions in this case, that the framing of the counts could have affected how the appellants conducted their defence.
96It is evident from both the case law and the provisions of the Criminal Code that and that the Crown is not required to specify the manner in which the frauds were committed and the specific date of each offence is not an essential element that the Crown must prove in this matter. The Information sufficiently specifies each fraudulent transaction, with each complainant, in which jurisdiction and when each transaction that each count related to commenced. The lack of an alleged time range or the nature of the fraud did not render the Information insufficient, it has not impacted Mr. Kroone's ability to make full answer and defence, it has not prejudiced Mr. Kroone's defence in any way, he has not been misled and it does not alter the elements of the offence that the Crown has to prove beyond a reasonable doubt.
97The nature of the frauds in this case are Mr. Kroone's deceitful business practices to secure these contracts and deposits, the diversion of the deposit money for his own purposes without authority, the risk of deprivation and actual deprivation of the deposits over time and the continuing withholding of Mr. Liscio's and the Coletta's deposits. He knew the full nature of the alleged frauds from his communications with each of the victims prior to being charged and the particulars in the disclosure.
98Contrary to Counsel's submissions, the Crown is not required to prove that the actus reus and mens rea of fraud crystalized on the dates alleged in the Information. A transaction alleged in a count in an Information may and often does include a series of occurrences extending over a length of time. The theory of the Crown's case with respect to how these offences were committed does not offend the single transaction rule and allows for proof of the commission of these offences over time. In R. v. Beitel, [2008] O.J. No. 4150 (Ont.S.C.J.), Justice Sprout made the following observations:
18 In R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 116 C.C.C. (3d) 435 (O.C.A.) discussed the meaning of a "single transaction" as follows:
While subsection 581(1) requires that a count relate to a "single transaction", a "single transaction" is not synonymous with a single incident, occurrence or offence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered as one transaction and no objection can be taken to a conviction thereon on the basis of uncertainty: see R. v. Flynn (1955), 1955 CanLII 126 (ON CA), 111 C.C.C. 129 (Ont. C.A.) at 136.
And further:
20 In R. v. Canavan and Busby, 1970 CanLII 319 (ON CA), [1970] 5 C.C.C. 15 (O.C.A.), the accused were charged in a single count with bookmaking. The Crown relied upon evidence that undercover police had on three separate days, in a one month period, placed bets with the accused or their employees. The Court found that this did not violate the single transaction rule stating:
In my view the several acts proven to have occurred on successive dates between the appellants or their servants acting in the course of their employment and Detective Stephens did not embarrass or prejudice the appellants at the trial, nor, for the reasons hereinafter stated, can such proof occasion any prejudice to them in the future. Each act took place on the appellants' premises and all followed a similar pattern which was in fact designed as a means of circumventing the provisions of s. 177A. The repetition of these offences is comparable to the continual wrongful taking of money by an embezzler or a day to day theft of goods from a merchant's stock in trade by one of his employees.
21 Mr. King acknowledged that the case that provides the greatest support for his position is R. v. Kisinger and Voszler (1972), 1972 ALTASCAD 11 (CanLII), 6 C.C.C. (2d) 212 (Alta. C.A.). In that case the Court upheld a conviction on a single count which alleged fraudulent transactions over a period of approximately three years. It appears the fraud related to inducing numerous unrelated investors to invest in three apartment buildings. The Court found that there was a plan to raise several hundred thousand dollars and a "general scheme of operation" which constituted one continuing offence.
22 The facts in Kisinger are in certain aspects stronger, from the Crown perspective than the instant case. In Kisinger there was an overall plan and the same fraudulent representation, relating to the same three apartment buildings was made to all of the victims.
23 Mr. King also noted that Count 1 alleges possession of property obtained by crime and not the discrete fraudulent acts that may have been involved in obtaining possession. In other words possession by its nature may continue 24 hours a day 7 days a week over an extended period whereas the acts involved in obtaining possession would typically occur on certain dates and could be so defined.
99The Crown's burden of proof with respect to the essential elements of the offences is not narrowly restricted by the first dates of the transactions set out in the Information. Counsel's submission that the Crown should be strictly required to prove the offences occurred on these date is erroneous, unduly technical and has no merit in these circumstances.
ii. The Elements of the Offence of Fraud
100Concomitantly, Counsel submitted that the Crown has failed to prove the requisite mens rea for fraud beyond a reasonable doubt because, on the dates alleged in the Information when Mr. Kroone entered into these contracts, he intended to fulfill them. Thereafter, he also intended to complete their contracts eventually.
101Counsel's narrow focus on Mr. Kroone's stated intention that he planned on fulfilling his obligations at some point does not address or refute the nature of the alleged frauds. Regardless of his intentions to eventually complete these projects, Mr. Kroone engaged in deceitful business practices to secure the contracts and the deposit money. Mr. Kroone knowingly and repetitively deceived Mr. Liscio, Ms. Biswas and the Colettas about his availability to secure their business and intentionally misrepresented the steps that he was taking to fulfill his contractual obligations to them. He continued to lie to them to placate them. He dishonestly led each of these complainants to believe that their individual contracts were a priority for him and their jobs would be completed promptly. He secured deposits from them based on misleading promises that he had no intention of immediately rendering any time in the immediate future. It is obvious from the timeline of his jobs in March alone that Mr. Kroone could not fulfill the promises he made to his clients when he made those promises to secure the contracts and their deposits especially since he deliberately chose to prioritize other contracts. As he said, thereafter, he would just feed them "bull" to hold them off. Moreover, Mr. Kroone intentionally diverted, deprived and withheld their deposit money without authorization or cause.
102When Mr. Kroone solicited and accepted each of the deposits, he undertook in written invoices that their money would be used to purchase supplies for their jobs, not someone else's, to pay for labour for their jobs not funding Mr. Kroone's company and paying his employees to work elsewhere. Mr. Kroone fraudulently diverted the deposits he accepted from Mr. Liscio, the Coletta's and even Ms. Biswas into his business account or in an envelope in his basement and then he used that money for his own benefit without their permission or authorization. Despite being aware of his obligation to refund his customers, Mr. Kroone has withheld their money.
103The leading case involving the law of criminal fraud is R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, 79 C.C.C. (3d) 449. The facts in the Theroux also involved a businessman who took deposits from clients and falsely represented that the deposits were insured. Justice McLachlin (as she then was) outlined the elements of the offence of fraud as follows:
16 Since the mens rea of an offence is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of the offence of fraud. Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan:
(i) the offence has two elements: dishonest act and deprivation;
(ii) the dishonest act is established by proof of deceit, falsehood or "other fraudulent means";
(iii) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act.
17 Olan marked a broadening of the law of fraud in two respects. First, it overruled previous authority which suggested that deceit was an essential element of the offence. Instead, it posited the general concept of dishonesty, which might manifest itself in deceit, falsehood or some other form of dishonesty. Just as what constitutes a lie or a deceitful act for the purpose of the actus reus is judged on the objective facts, so the "other fraudulent means" in the third category is determined objectively, by reference to what a reasonable person would consider to be a dishonest act. Second, Olan made it clear that economic loss was not essential to the offence; the imperilling of an economic interest is sufficient even though no actual loss has been suffered. By adopting an expansive interpretation of the offence, the Court established fraud as an offence of general scope capable of encompassing a wide range of dishonest commercial dealings.
18 Subsequent cases followed Olan's lead, fleshing out the elements of the offence set out in Olan in a broad and purposive manner. One of the first questions which arose was whether the third type of dishonest conduct, "other fraudulent means", was a super-added element which the Crown must prove in addition to proving either deceit or falsehood. This was rejected in …. case cited… In a number of subsequent cases, courts have defined the sort of conduct which may fall under this third category of other fraudulent means to include the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogation of funds or property :... case cited … As noted above, where it is alleged that the actus reus of a particular fraud is "other fraudulent means", the existence of such means will be determined by what reasonable people consider to be dishonest dealing. In instances of fraud by deceit or falsehood, it will not be necessary to undertake such an inquiry; all that need be determined is whether the accused, as a matter of fact, represented that a situation was of a certain character, when, in reality, it was not.
104These legal principles are directly on point and entirely applicable to the facts before this Court. I have also reviewed a decision from the Ontario Court of Appeal in R. v. Renard, [1974] O.J. No. 361. This decision has been followed multiple times including as recently as last year. The Ontario Court of Appeal stated that:
Para 9: A person may be defrauded by being deprived of something and he may be deprived of something either by being fraudulently induced to part with it or by having that to which he is entitled fraudulently diverted or withheld from him.
105Mr. Kroone fraudulently mislead his client about his availability and his commitment to prioritizing their jobs and induced them to part with their deposits based on his misrepresentations. He also diverted their deposits for his own use without their authorization and he has withheld their money from them. I can't imagine a clearer case of fraud.
106Despite the obvious dishonestly, monetary deprivation and withholding of the deposits, Counsel maintained that the Crown has failed to prove the mens rea of fraud. He submitted that Mr. Kroone does not have a trust account and he did not know that he should not have used the complainants' deposit money for other purposes because he intended to eventually purchase the goods and provide the services. The Supreme Court also addressed this type of submission about the mental element of fraud:
22 Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with the accused's system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest.
23 The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.
24 Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence.
25 This applies as much to the third head of fraud, "other fraudulent means", as to lies and acts of deceit. Although other fraudulent means have been broadly defined as means which are "dishonest", it is not necessary that an accused personally consider these means to be dishonest in order that he or she be convicted of fraud for having undertaken them. The "dishonesty" of the means is relevant to the determination whether the conduct falls within the type of conduct caught by the offence of fraud; what reasonable people consider dishonest assists in the determination whether the actus reus of the offence can be made out on particular facts. That established, it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence.
107It is irrelevant that Mr. Kroone may have hoped that, one day, he would be able to fulfill his obligations or that he did not believe he did anything wrong. He deceived the complainants and then intentionally put their deposits at risk of deprivation by using that money for other purposes without their authority knowing that, because of his multiple commitments, the deprivation could follow as a likely consequence.
108The Crown has established beyond a reasonable doubt that Mr. Kroone undertook to complete these contracts knowing that he would not fulfill his promises to prioritize these jobs, that he was overbooking himself and, more importantly, knowing that he was undertaking to use their deposits for their jobs and almost immediately and intentionally diverted the funds without their authorization for his own purposes.
109It does not matter that Mr. Kroone does not see anything wrong with his fraudulent business practices. It was patently obvious from Mr. Kroone's flippant attitude while he was testifying that he was not concerned about making false promises to his clients or taking their money to bankroll other contracts and his company and keeping their money from them no matter how many times that they have requested he return it. Mr. Kroone's callousness and self-pity do not afford him a defence to these charges.
D. Conclusion
110Mr. Kroone is a charlatan who showed absolutely no concern or remorse for his deceitful business practices, the lies he told his customers, the unlawful deprivation of their deposit money and conversion of these funds for his own use without their permission and then consistently withholding the complainants' money.
111The Crown has proven beyond a reasonable doubt that Mr. Kroone is guilty of fraudulently depriving Mr. Liscio and the Coletta's of their deposits. Accordingly, he is found guilty of counts 1 and 3. I also find that he mislead Ms. Biswas and put her deposit at risk of deprivation by using it for other purposes without her authorization. The fact that he partly completed her job after he was charged does not alter the nature of his fraudulent conduct. Nevertheless, the Crown has invited dismissal of this count because of some confusing aspects of Ms. Biswas' evidence and it is their burden to prove the charges beyond a reasonable doubt. As a result, the count with respect to Ms. Biswas is dismissed at the request of the Crown. Finally, Mr. Kroone already plead guilty to count 7 and the balance of the counts with respect to "Cash 4 You" should be stayed at the request of the Crown.
Released: April 13th, 2018
Signed: Justice Green