O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HER MAJESTY THE QUEEN
-AND-
KYLE BANCROFT
Before Justice Michael G. March
Heard on June 11, 13, 14, 17, July 18, 19, September 4, 5, 6, 9, 10, 18, October 21, 30, November 19, December 9, 11, 17, 2019,
January 8 and 17, August 18, 19, October 19 and 29, 2020
Reasons for Judgment released on January 8, 2021
Teresa James…………………………………………………………….Counsel for the Crown
Kyle Bancroft……………………………………...………..……….Self-Represented Accused
Introduction:
- The accused, Kyle Bancroft,(“Bancroft”) stands charged that:
a) on December 28, 2015, he conspired with Roy Wiggins and Cary St. Michael to commit the indictable offence of fraud by selling a wood processor and then claiming to its insurer it was stolen contrary to section 465(1)(c) of the Criminal Code (“the Code”);
b) on December 28, 2015, Bancroft had in his possession a quantity of Canadian currency of a value exceeding $5,000.00 knowing that the currency was obtained by the commission of an offence punishable by indictment, to wit, the proceeds of the sale of the wood processor contrary to section 354(1) (a) of the Code;
c) on December 30, 2015, Bancroft committed public mischief with intent to mislead by causing Provincial Constable J. Cassidy, a peace officer with the Ontario Police Provincial Police, to enter upon an investigation by reporting that the offence of theft had been committed, when it had not, contrary to section 140(1)(c) of the Code;
d) on February 1, 2016, Bancroft, being a person required by law to make a statement orally under oath, to wit, an interview under K.G.B. caution with Commissioner of Oaths, Karen Wren, did make a false statement, to wit, the theft of his wood processor, knowing the statement was false contrary to section 131 of the Code;
e) on January 26, 2017, by deceit, falsehood or other fraudulent means, Bancroft attempted to defraud Economical Mutual Insurance Company of the sum of over $5,000.00 by filing a false insurance claim contrary to section 380(1)(a) of the Code;
f) on January 26, 2017, Bancroft knowingly made a false statement, to wit, a Proof of Loss to Economical Insurance Company with intent that it be acted upon as genuine, and did thereby commit forgery contrary to section 367 of the Code;
g) on January 26, 2017, Bancroft knowingly used a forged document, to wit, a Proof of Loss form as if it were genuine contrary to section 368(1)(a) of the Code;
h) on August 21, 2015, Bancroft, by deceit, falsehood or other fraudulent means, defrauded National Leasing of a sum of $54,838.05 by forging a bill of sale for a 2014 Cord King wood processor that never existed contrary to section 380(1)(a) of the Code;
i) on August 21, 2015, Bancroft conspired with Cary St. Michael to commit the indictable offence of fraud by planning the fraudulent sale of a wood processor and forging a bill of sale for said wood processor contrary to section 465(1)(c) of the Code;
j) on August 19, 2015, Bancroft knowingly made a false document, to wit, a leasing agreement for a 2014 Cord King Wood Processor with intent that it be acted upon as genuine, and did thereby commit forgery contrary to section 367 of the Code;
k) on August 19, 2015, Bancroft knowingly used a forged document, to wit, Application of a Leasing Agreement for a 2014 Cord King Wood Processor as if it were genuine contrary to section 368(1)(a) of the Code;
l) on August 24, 2015, Bancroft had in his possession Canadian currency of a value exceeding $5,000.00 knowing that the currency was obtained by the commission in Canada of an offence punishable by indictment, to wit, fraud relating to a bill of sale for nonexistent property, a 2014 Cord King Wood Processor, contrary to section 354(1)(a) of the Code.
Originally, Bancroft faced 11 other charges in a 23 count Information before this Court; however, 5 of those 10 charges were withdrawn at the outset of trial on June 11, 2019, (i.e. Cts. 18 through 22 inclusive). A further 5 were dismissed on August 19, 2020 at the invitation of the Crown (Cts. 13 through 17 inclusive). On October 19, 2020, the Crown stayed Ct. 23, a charge of obstructing the course of justice.
Bancroft represented himself. He was denied the assistance of counsel when his Rowbotham application to the Superior Court of Justice was dismissed on March 28, 2019 well prior to the commencement of this trial.
Bancroft also brought 4 other applications seeking a stay of his charges under section 24(1) of the Canadian Charter of Rights and Freedoms. Those were all dismissed over the course of his trial as well.
The Relevant Evidence:
August 19 to 24, 2015 (Counts 8 to 12)
Aaron Nemchin (“Nemchin”), an account manager with National Leasing Company (“National Leasing”) for some 17 years, testified on June 13, 2019 that he had dealings with Bancroft in 2015.
Nemchin obtained from Bancroft the year, make, model, and serial number for a wood processor which Bancroft intended to acquire.
Of note, the serial number provided by Bancroft for the wood processor was CMIS2040 CAT32641587.
David Kravacek, the general manager for the manufacturer of the wood processor, Cord Master International Inc. (“CMI”), testified that the serial number was nonsensical. The string of numbers 3264 in the aforementioned serial number signified a manufacturing date in the 3000’s.
Nemchin stated that he conducted research into the value of the wood processor. He also inquired whether there was a lien registered against it by doing a search under the Personal Property Security Act.
Nemchin then prepared lease documents for the processor and a Bill of Sale dated August 19, 2015, which were made Exhibit 1.
The arrangements for Bancroft’s lease of the wood processor were all done over the phone.
Nemchin spoke to the person he believed to be the seller, one Cary St. Michael (“St. Michael”). Nemchin obtained from St. Michael his full legal name, address and date of birth.
Under the Bill of Sale, the seller, St. Michael gave title to the wood processor to National Leasing.
The purchase price for it was fixed at $62,200.00. The Bill of Sale was signed by St. Michael not in the presence of Nemchin.
Next, Nemchin prepared a Direction to Pay made Exhibit 2 at trial and dated August 19, 2015.
The Direction to Pay obligated National Leasing to transmit funds in the sum of $54,838.05 to St. Michael. This sum subtracted from the purchase price the $6,220.00 deposit St. Michael represented to National Leasing that Bancroft had already paid toward the wood processor, as well as arrangement and administration fees totaling $1,141.95.
Under authority of the Direct Deposit Notification signed by St. Michael, dated August 19, 2015, and made Exhibit 5 at trial, National Leasing sent $54,838.05 to his account with the Bank of Montréal in Renfrew, Ontario.
Nemchin identified Lease Agreement No. 2730901 made Exhibit 3 at trial between National Leasing as lessor and Bancroft as lessee of the wood processor. The agreement to lease was signed by Bancroft on August 18, 2015. It was accepted by National Leasing on August 20, 2015.
The agreement contemplated a 48 month term under which Bancroft was obligated to pay 47 monthly instalments of $1,639.72 plus applicable taxes commencing on October 1, 2015. The $6,220.00 down payment was deemed to be the first paid instalment under the agreement.
Bancroft made payments under the agreement until January 1, 2016.
In or around January 1, 2016, Bancroft communicated to National Leasing that the wood processor had been stolen. National Leasing encouraged Bancroft to continue to make his monthly payments while pursuing a claim for the loss of the wood processor through his insurer.
Nemchin explained that before funds were originally paid out at Bancroft’s direction under the Lease Agreement, National Leasing confirmed that Bancroft had properly insured the wood processor.
National Leasing is, of course, a finance company, not a manufacturer. National Leasing expected full payment to be made by expiry of the 48 month term of the lease irrespective of any loss of the wood processor.
National Leasing only received four paid monthly instalments under the Lease Agreement it had with Bancroft.
According to Nemchin, National Leasing has accrued $142,000.00 in expenses pursuing Bancroft for its loss civilly. Nemchin did not know whether National Leasing’s civil claim against Bancroft has been finally determined.
The Bill of Sale, Direction to Pay and Direct Deposit Notification were all sent to St. Michael and signed by him.
The Leasing Agreement was emailed to Bancroft and signed by him.
St. Michael testified that he became involved with Bancroft when he went to work for him around three or four years prior to testifying on June 14, 2019. St. Michael came across a Kijiji advertisement Bancroft posted seeking a labourer.
St. Michael applied for the job and obtained it.
He worked on site for Bancroft at his home located at 111 Burnstown Rd., White Lake, Ontario.
St. Michael explained that Bancroft was in the lumber business. He ran a wood processor. He also planed wood in his mill according to his customers’ specifications.
Bancroft made lumber sales to customers across Ontario. He did deliveries as well.
The wood processor was basically a piece of machinery designed for making firewood. It would cut and split the logs placed in it.
Depending on what was required, St. Michael would either do the planing, or would make the firewood upon Bancroft’s direction.
St. Michael clarified that there was just one wood processor on Bancroft’s property when he worked for him. It was the biggest of the types made by Cord King International Inc. Over the course of time St. Michael worked for Bancroft, there never was a second wood processor he saw at the workplace.
St. Michael stated that he was involved in the fraud to acquire financing for the non-existent wood processor. It was Bancroft’s idea as to how the fraud would be perpetrated.
St. Michael insisted that he did not want to carry out the fraud at first. Bancroft kept bugging him to go along with it. Finally, St. Michael agreed.
The plan was for St. Michael to pose as the owner of the non-existent, smaller wood processor.
Bancroft instructed St. Michael that he had to make the financier believe that he had been paid $1,000.00 as a down payment. The rest would have to be financed to allow Bancroft to acquire the wood processor from St. Michael.
St. Michael believed that he spoke to Nemchin, a representative with National Leasing. St. Michael told Nemchin that Bancroft had given him one thousand dollars. Bancroft also provided St. Michael with the serial number for the smaller, non-existent wood processor. St. Michael supplied this information to Nemchin over the phone.
St. Michael identified an email dated August 13, 2015 sent from Bancroft’s email address, paylessfirewood@hotmail.com, and made Exhibit 14 on the trial, to Nemchin.
Additionally, Bancroft wrote the serial number for the non-existent wood processor on the email for St. Michael. Where Bancroft came up with the serial number, St. Michael did not know.
St. Michael confirmed that Nemchin did not ask about the particulars of the non-existent wood processor. Nemchin did tell St. Michael he would verify the serial number. Nemchin communicated to St. Michael as well that he would look into the value of the wood processor. He lastly took from St. Michael bank account details, and a Direct Deposit Notification form.
St. Michael recognized his signature on the Bill of Sale made Exhibit 1 on the trial. He confirmed that he did not own the wood processor to which this document referred.
St. Michael denied that he received any real benefit from the fraud perpetrated upon National Leasing. He signed the Bill of Sale to help Bancroft. St. Michael knew what he was doing was wrong.
He further acknowledged his signature on the Direction to Pay made Exhibit 2 on the trial. He knew by signing that document he authorized National Leasing to pay the sale price less deposit and administration fees for the non-existent wood processor into his bank account.
Equally, St. Michael identified the Direct Deposit Notification made Exhibit 5 on the trial as containing his signature as well.
He also recognized the facsimile number on the documents prepared by National Leasing to have been transmitted from the Renfrew Library. St. Michael’s bank account with the Bank of Montréal was also in Renfrew.
St. Michael explained that he delivered all his bank records to Detective Constable Snider of the OPP. The address indicated on the Direct Deposit Notification was where St. Michael lived at the time.
On August 21, 2015, National Leasing transferred $54,838.05 to St. Michael’s bank account in Renfrew.
In turn, St. Michael e-transferred some of the monies received from National Leasing to Bancroft.
St. Michael stated that he knew what he did to assist Bancroft was a fraud. St. Michael did not want to keep any of the funds himself.
On Bancroft’s instruction and over the course of several days, St. Michael e-transferred to Bancroft a large sum of the funds he received from National Leasing.
On August 24, 2015, St. Michael e-transferred $6,000.00 to Bancroft. He also withdrew $500.00 in cash. He further obtained a bank draft from the Bank of Montréal in the sum of $25,000 in order to buy lumber from “Shaw’s”, a forestry products business in Pembroke. A copy of the bank draft made payable to “Herb Shaw and Sons” was made Exhibit 17 at trial.
St. Michael acted on Bancroft’s instruction in acquiring that lumber. St. Michael delivered it to Bancroft’s property at 111 Burnstown Rd. in White Lake, Ontario.
To St. Michael’s recollection, the lumber obtained from Shaw’s was separated and sold to Bancroft’s various customers.
On August 24, 2015 as well, St. Michael withdrew $5,000.00 in order to buy logs from a man in Cobden in order to process it into firewood. St. Michael testified that Bancroft negotiated the amount of wood and the price. St. Michael paid the seller in cash.
Those logs, St. Michael explained, were purchased prior to the disappearance of a bigger wood processor which actually existed, and which Bancroft utilized on his property.
Also on August 24, 2015, St. Michael used his bank card to buy $108.00 worth of gas from Canadian Tire.
That same day as well, St. Michael e-transferred $3,000.00 to Bancroft.
On August 25, 2015 St. Michael e-transferred $1,000.00 to Bancroft.
On August 26, 2015, St. Michael gave evidence that he made miscellaneous purchases for Bancroft’s benefit at the White Lake General Store. A $4.00 service charge applied for the debit card purchases St. Michael made.
On August 27, 2015, St. Michael made debit card purchases from Gourley’s Variety Store, but he was unsure of the nature of those transactions.
On August 28, 2015, St. Michael made a debit card purchase from Canadian Tire in the sum of $94.27 to refuel his vehicle.
On August 31, 2015, St. Michael e-transferred $3,000.00 to Bancroft. A practical plan fee and Interac e-transfer fee of $4.00 and $7.50 applied to his account respectively.
On August 31, 2015 as well, St. Michael withdrew the sum of $6,000.00 from his bank account. St. Michael testified that those funds were required to buy more logs or lumber. It was Bancroft who negotiated the price with the seller. Bancroft either called or texted St. Michael to obtain those funds.
On September 1, 2015, St. Michael e-transferred $3,000.00 to Bancroft.
On September 8, 2015, St. Michael used $114 .76 to pay the insurance for his vehicle.
On September 8, 2015, St. Michael e-transferred $1,550.00 to Bancroft.
In total, St. Michael’s banking records confirmed that Bancroft received $17,550.00 in e-transfers of the $54,838.05 in funds received from National Leasing for the non-existent wood processor.
St. Michael testified that he derived no benefit from the sale of the lumber. He was only ever paid an hourly wage by Bancroft.
St. Michael never spoke to Bancroft’s insurer about the purported loss of the non-existent wood processor.
The first person St. Michael ever told about the fraud he perpetrated with Bancroft was Detective Constable Snider at or about the time of his arrest.
Under cross-examination, St. Michael did not agree when it was suggested to him that he had ever offered to sell an actual wood processor to Bancroft.
When Exhibit 14, the email sent from paylessfirewood@hotmail.com to Nemchin on August 13, 2015, was shown to St. Michael, he identified the handwriting setting out the serial number on the face of the document as Bancroft’s. The serial number was the one provided by St. Michael to Nemchin for the non-existent wood processor.
St. Michael confirmed that Bancroft did not touch the Bill of Sale (Exhibit 1), the Direction to Pay (Exhibit 2) or the Direct Deposit Notification (Exhibit 5).
St. Michael testified that he only held onto the money received from National Leasing long enough for it to be transferred to Bancroft.
St. Michael maintained that it was common for him to go to Shaw’s. He always paid with cash. There was only one occasion when he took a bank draft for $25,000.00. He travelled alone to collect the wood. He did not recall being accompanied by Bancroft.
St. Michael did not recall Bancroft taking a trip to the Niagara region around the time that they received the money from National Leasing for the non-existent wood processor.
St. Michael knew that their conduct in obtaining funds from National Leasing was fraudulent. St. Michael denied that he received any real benefit from the scam Bancroft and he concocted.
St. Michael maintained that all cash withdrawals from his bank account from August 24 to September 8, 2015 were handed over to Bancroft.
On one occasion, St. Michael recalled an incident where Ginger Zilney and Bancroft were counting out large sums of cash in their residence located at the workplace.
St. Michael believed that there may have been two trips to Shaw’s to acquire wood.
He reasserted that Bancroft gave to him the serial number to be provided to National Leasing.
St. Michael vehemently denied that during the time he was employed by Bancroft there was ever a second wood processor at the workplace.
St. Michael agreed that at the time of his arrest on July 26, 2017, he did ask Detective Constable Snider, “Could I not be charged if I gave you what you wanted?” The officer only offered in reply that St. Michael could attempt to group his charges together and then, to seek a plea bargain.
The general manager of CMI, Mr. Kravacek, did not remember ever having fired St. Michael, or St. Michael ever having been in the employ of the company.
However, he did remember a telephone call from Bancroft in December of 2015 when Bancroft asked whether his company’s wood processors were equipped with GPS devices to locate them. Mr. Kravacek confirmed they did not. Kravacek believed this conversation occurred after Bancroft reported his wood processor stolen.
On January 17, 2020, Corey Blakely (“Blakely”) testified that he worked for Bancroft on and off for years. Blakely recalled that he first was employed by Bancroft in the early 2000’s.
Typically, Bancroft would pay Blakely in cash at quitting time. Blakely denied that Bancroft ever solicited him to engage in criminal acts.
Blakely knew St. Michael as a co-worker. According to Blakely, almost daily St. Michael would show up to work late. Blakely described St. Michael as a heavy drinker. The two men were not friends.
Blakely only knew of a single wood processor which Bancroft utilized in running his firewood production business.
Ginger Zilney (“Zilney”) testified that she was in a relationship with Bancroft for approximately five years. They lived together at his residence in Burnstown, Ontario. Their relationship ended in or about 2017. Around that time, Zilney moved out.
Over the course of their relationship, she had no source of income. All she had was what Bancroft gave her. Occasionally she got some money from her mother.
Zilney believed that the funds she received from Bancroft were derived from lumber and firewood sales.
She denied that she knew Bancroft obtained money from lumber contracts upon which he did not deliver.
However, she stated that Bancroft had lied to her before, and she found out about it.
Zilney was aware that Bancroft paid his employees in cash.
She did not know if Bancroft paid income tax on the money he received from the sale of firewood and lumber.
She would see St. Michael come and go from Bancroft’s workplace every day. She did not notice if Wiggins was around. She could not stand him.
She was aware that Blakely lived next door to Bancroft’s property.
She could not recall if St. Michael and Wiggins were around during Christmas time 2015.
She did not remember being present when St. Michael and Bancroft discussed the acquisition of a second wood processor.
During the holiday season of 2015, Zilney remembered she was staying at her mother’s home in Petawawa. She moved there on December 12. She stayed until the second week of January 2016.
She remembered that Bancroft would come to see her every second or third day.
On one occasion when Bancroft was with her at her mother’s place, he received a call and learned that his wood processor was stolen. He cried upon hearing the news.
Zilney explained that she played no role in the acquisition of the wood processors.
However, she seemed to recall that Bancroft financed a bigger one through CMI. The other one, he bought through St. Michael, but she only saw it once.
Zilney did not know how Bancroft paid for the wood processors. Nor did she ever withdraw money from or have any knowledge of his bank accounts. He usually paid for everything in cash.
She recalled that Bancroft’s parents, in order to receive independent legal advice, accompanied him to Oshawa at the time he “leased” a wood processor, while Bancroft and she went to another lawyer’s office.
She was aware that Bancroft was engaged in disputes with his family members frequently, but they did not involve St. Michael, Wiggins or Edmonds.
Zilney remembered a vacation she took to Niagara Falls one summer with Bancroft before the disappearance of the big wood processor. Zilney’s son and his girlfriend came along on the trip as well.
Bancroft funded the entire excursion. Zilney did not know where the money came from to pay for it.
Zilney believed that Bancroft’s business went downhill due to the theft of lumber from his yard.
Gaetan Levesque (“Levesque”) testified on October 29, 2020 that he sometimes goes by the name of “G”.
To Levesque’s recollection, he started working for Bancroft in November 2014.
While in Bancroft’s employ, he learned how to operate wood processors. It was the preferred job. One could stay warm in the cab of the wood processor.
One of the wood processors Levesque described as a “small little thing”. Bancroft’s employees were expected to load logs onto its belt to make it go through the blade. It was not used much. It was hard to load logs onto it. It was kept beside the swamp.
Levesque remembered that Bancroft’s business was brisk in the period of 2014 going into 2015. Two or three of Bancroft’s customers would come by daily. It was difficult to keep a sufficient supply of wood stacked, before people would want to take it away.
Levesque believed it was in the winter of 2015 or early 2016 that Bancroft thought about getting another wood processor around two months after Levesque started working for Bancroft. When shown an invoice for a wood processor from CMI dated February 14, 2014, Levesque assumed that that was one which Bancroft kept on his property in Barry’s Bay.
Dec. 28, 2015 to Feb. 1, 2016 ( Counts 1 to 4)
Robert Hansen (“Hansen”) established Cord Master International Inc. (“CMI”) in 1978.
On February 14, 2014, Bancroft bought a Cord King Model 60 from CMI. Bancroft was able to make a $10,000.00 down payment. Hanson testified he financed the balance of the purchase price personally. He took a chattel mortgage back from Kyle Bancroft using a home owned by Bancroft’s parents to secure the loan he gave to Bancroft to allow him to acquire the wood processor.
The total price for the wood processor was $133,530.00. Hansen offered a 10% discount to Bancroft off the purchase price. Bancroft signed a Promissory Note to acknowledge the debt remaining to be paid to CMI.
The Invoice, Promissory Note and Amortization Schedule for repayment of the debt owed by Bancroft to CMI were collectively marked as Exhibit 8 on the trial.
In December 2015, Hansen received word from Bancroft that the wood processor had been stolen. Bancroft then ceased to make payments on the loan he obtained from CMI. His regular monthly payments had not been made for two to three months prior to the disappearance of he wood processor. Hansen had been threatening to repossess the wood processor if Bancroft did not address his missed instalments.
Blakely operated the big wood processor which Bancroft acquired from CMI. He likened it to playing a big dangerous videogame.
On December 28, 2015, Blakely remembered running the wood processor at Bancroft’s property and getting paid at the end of the day.
On December 29, 2015, Blakely thought he was using the wood processor again, but he was unsure.
On December 30, 2015, Blakely met St. Michael at the workplace and noticed that the wood processor was missing. To Blakely’s recollection, there had been a big snowstorm the night before.
Blakely told St. Michael to call Bancroft to give him the bad news. Blakely stated that St. Michael looked baffled.
Blakely seemed to recall that Bancroft still had a large pile of logs left to be cut. However, there were only three chain saws and a wood splitter at their disposal to deal with those logs.
Blakely did not speak to Bancroft about where the missing wood processor might be.
Blakely did not see St. Michael after that day. Nor could he recall working for Bancroft ever again.
St. Michael believed that in the winter of 2015, he assisted in moving a large wood processor, one that actually existed, to Maniwaki, Québec after dark.
Bancroft had not told St. Michael about the sale of the wood processor, which he had negotiated with a buyer in Québec.
Roy Wiggins (“Wiggins”) told St. Michael about the sale the very evening the wood processor was to be transported. In fact, St. Michael recalled that he had been operating the wood processor with Corey Blakely earlier in the day.
St. Michael explained that he met Wiggins when he first went to work for Bancroft. Wiggins was employed sporadically by Bancroft.
St. Michael testified that the wood processor was a heavy piece of machinery. It required at least a three-quarter ton truck to pull it. The conveyor, which attaches to the wood processor, was lighter. It was capable of being moved with a half ton truck.
St. Michael recalled that the wood processor was connected to a one ton, Ford black truck owned by Lawrence Edmonds (“Edmonds”). The conveyor was hooked up to St. Michael’s 1996 Chevrolet half ton truck, which was greyish green in colour.
During the transport of the processor and conveyor to Québec, Wiggins travelled with St. Michael in his half ton. Bancroft was not present.
St. Michael explained that there was no need to discuss the transportation of the processor to Québec. Bancroft paid him $12 per hour for the work he did. St. Michael remembered the exact route travelled to transport the machinery to Québec. While driving his half ton, Edmonds and he purposely avoided any highway scales or surveillance cameras to avoid detection of their licence plate numbers.
St. Michael thought at the time that they were going to a job site. He was the type to take orders and do what he was told. It was Wiggins in particular, who was cautious about not having their movements seen en route to Québec.
Ultimately, St. Michael and Edmonds reached their destination in Maniwaki after a journey which lasted an hour to an hour and a half. Upon arrival, Wiggins told St. Michael and Edmonds to gas up their vehicles. Wiggins then went upstairs to speak to the person St. Michael believed to be the owner of the gas station.
When Wiggins came downstairs, he told St. Michael to buy some items in the convenience store of the gas station. St. Michael did so. He noticed that Wiggins had an envelope full of money, most of which was made up of $100 bills.
Thereafter, St. Michael and Edmonds followed another gentleman parked in a nearby vehicle. They arrived soon after at a big yard, where they dropped off the machinery.
St. Michael did not speak with the two individuals they followed to the yard. St. Michael believed them to be a father and son. They spoke French. Wiggins, St. Michael explained, is bilingual. He was able to show the father and son what to do in order to operate the machinery.
St. Michael then drove Wiggins to Ottawa to meet Bancroft. St. Michael believed Edmonds simply headed home in his vehicle after dropping off the wood processor.
St. Michael and Wiggins travelled to an area in Ottawa known as Parkdale – close to where Wiggins’ father lived. Bancroft was waiting for them in his truck.
Wiggins entered Bancroft’s vehicle with the envelope of money. Wiggins sat beside Bancroft. Wiggins gave the envelope to Bancroft. St. Michael stood outside. Bancroft then handed to St. Michael a $100.00 bill.
St. Michael was not happy with the pay he received from Bancroft. St. Michael reckoned he had worked a 12 hour day. He thought he ought to have received at least $144.00 given his regular wage of $12.00 per hour.
St. Michael did not complain to Bancroft at the time. It was late. He just wanted to go home.
Thereafter, whenever St. Michael went to work on Bancroft’s property, no wood processor was there.
St. Michael recalled that the next time Bancroft telephoned him to come to work, Bancroft told him that he wanted Corey Blakely and him to “Go cut wood”.
St. Michael responded that there was no longer any wood processor to cut it.
Bancroft pretended to be in shock and commented, “Really?”. He added, “Someone must’ve stolen it. I’m going to call the cops.”
St. Michael testified that it could have been later that day that police showed up at the worksite at 111 Burnstown Rd. in White Lake. He remembered that it was Constable Cassidy. The officer wanted to take a statement from Bancroft.
In speaking to the police officer, Bancroft tried to put the blame on his family members, Karen and Bob. Bancroft told the officer he thought the wood processor had been stolen. He had tears in his eyes as he told the story. St. Michael thought that Bancroft was “ . . . a pretty good actor”.
Constable Cassidy did not ask St. Michael any questions.
St. Michael had no real conversation thereafter with Bancroft about what he had told Constable Cassidy. However, Bancroft told St. Michael that he thought Constable Cassidy believed him that his family members had stolen the wood processor.
A day or two later, Bancroft told St. Michael he wanted to call his insurer and make a claim for the wood processor.
St. Michael conceded that he did not speak up and tell police the truth about what had actually happened. He was worried about losing his job. Bancroft was his only source of income.
St. Michael explained that when he first started working for Bancroft, he was getting eight hours per day, and sometimes six or seven workdays per week.
After the wood processor was gone, he had irregular hours. He did not work a 40 hour week.
Bancroft later told St. Michael that he had made claims for both the wood processor which actually existed as well as the one that did not.
St. Michael warned Bancroft that he was taking a big chance. St. Michael believed that Bancroft’s expectation for payment of the claims was unrealistic. However, St. Michael did not ever speak to Bancroft’s insurer.
St. Michael admitted his criminal record made Exhibit 15 at trial. On November 20, 1996, St. Michael was convicted of driving with more than 80 mg of alcohol in 100 mL of blood contrary to section 253(b) of the Code. He received a $600.00 fine and a twelve-month driving prohibition.
On April 9, 2018 he was convicted of breaking, entering and committing an indictable offence, mischief and use of a forged document contrary to sections 348(1)(b), 430(4) and 368(1)(b) respectively of the Code. For these offences, he received a six month conditional sentence and 18 months probation.
At the time of testifying, St. Michael was assisted by the Ottawa Police Witness Protection Unit. He applied for admission to witness protection in September 2017. His admission is still under consideration. Since April 24, 2019, he received funding for food and lodging from the Ottawa Police Service. The police covered his basic grocery and shelter expenses. A further allowance for miscellaneous items such as clothing, postage and the administrative cost of changing his documentation was also remunerated.
St. Michael denied that he received any form of benefit or consideration with respect to the co-operation he gave to Detective Constable Snider and Detective Constable Holmes in investigating the occurrences which ultimately resulted in Bancroft’s charges currently before this Court.
St. Michael added that at the time he was arrested by police, it seemed to him as though the police already knew about the offences he had committed in conjunction with Bancroft and Wiggins.
Under cross-examination by Bancroft, St. Michael admitted to receiving gifts from Bancroft. Bancroft bought for St. Michael a 1996 pickup truck. Bancroft paid $1,500.00 for it.
St. Michael as well conceded that Bancroft assisted him after he lost his home, which he had inherited from his father sometime in 2014 or 2015.
St. Michael agreed that his father bequeathed to him as well approximately 11 firearms. St. Michael knew about guns from roughly the age of 16. He did a hunting course. He had a valid possession acquisition license. For a time, he conceded, his license had expired. He had not checked the date for its renewal.
St. Michael acknowledged that he legitimately acquired guns, but that he did so on behalf of Bancroft. The rifles purchased by St. Michael were then sold to two questionable individuals from the Toronto area named “Dice” and “Convict”. St. Michael did not know these men. Bancroft called them to ask if they were interested in acquiring the firearms.
Bancroft arranged the meeting places on the two or three occasions St. Michael travelled to Toronto to sell guns to these men. St. Michael conceded that he did not check to see if either “Dice” or “Convict” had possession acquisition licenses as the law requires him to do.
Bancroft negotiated the price for the guns and received the money for them.
Equally, St. Michael agreed that he modified the weapons to allow them to contain more ammunition than the law would permit. However, he insisted that the purchase, modification and sale of the weapons were all done on Bancroft’s behalf.
St. Michael clarified that when he went to work for Bancroft in 2014 or 2015, he was paid in cash. St. Michael was also in receipt of welfare benefits at the time. He maintained that he declared all cash payments to the welfare authorities.
St. Michael confirmed as well that on occasion, he acquired cell phones for Bancroft. St. Michael explained that he was doing so much crime with Bancroft, and the events happened so long ago, he had difficulty recalling all the specifics. St. Michael, Bancroft and Wiggins would case out places from which to steal, particularly skidoos and heavy equipment.
Although St. Michael did not remember all the crimes he had committed when he initially spoke to Detective Constable Snider, he maintained that he was 98% truthful with police. He conceded that Detective Constable Snider wished for him to be 100% truthful. As St. Michael put it, “Everything I was involved with, you were with me, Kyle”.
St. Michael recalled that there was a big snowfall the day after the wood processor was delivered to Québec.
St. Michael agreed that he did like to drink every night. At times, he would get upset with Bancroft if there were no beer to consume after working long days.
St. Michael conceded that it was Wiggins who contacted the purchaser of the wood processor in Québec, a person St. Michael knew as Butch. St. Michael did not think that he had met Butch on a prior occasion. When it was pointed out to St. Michael that in giving his statement to police about the wood processor, and telling Detective Constable Snider he had seen Butch before, St. Michael explained that it was hard to remember everything with all of the crime committed by Bancroft, Wiggins and him.
St. Michael denied that Corey Blakely was present at the time the wood processor was taken away from Bancroft’s workplace and residence.
St. Michael acknowledged that in giving a statement to police and being asked about who told him to load up the wood processor, he answered Bancroft. Further, when asked by police to explain why the wood processor was going to Québec, St. Michael told police that Bancroft had said he had it sold. However, St. Michael corrected himself in giving his testimony to say Wiggins told him to load it up, because Bancroft did not want Corey Blakely to know about its disposition. Ultimately, St. Michael was unsure whether it was Bancroft or Wiggins who told him that the wood processor had been sold.
In answer to police questions about whether Bancroft told St. Michael how much he had sold the wood processor for, St. Michael had answered that Bancroft was not around. He was in Ottawa.
In giving his initial statement to police, and in answer to the question about where everyone was situated when Bancroft said, “load it up”, St. Michael agreed that he told police that they were all there in the yard at 111 Burnstown Rd. St. Michael conceded as well that he spoke of wood processors (i.e. plural). However, St. Michael pointed out that this could simply be a typing error. Everything was happening so quickly.
Alternatively, Bancroft could have issued the command quickly to St. Michael when Corey Blakely was not around. It was St. Michael’s recollection that Bancroft purposely took Corey Blakely away from the workplace, so he would not see the wood processor being removed. Neither Bancroft nor Corey Blakely were present when Edmonds, Wiggins and St. Michael left with the processor and conveyor. Corey Blakely lived next door. He could have been inside his residence.
St. Michael agreed that it would have been a heavy duty black pickup that Edmonds was driving and using to pull the wood processor. St. Michael believed it was a Ford, probably with a diesel engine. St. Michael maintained that he operated his own vehicle, the 1996 GMC Sierra pickup, to transport the conveyor.
St. Michael confirmed that he followed Edmonds on the trip to Québec. They left somewhere between 6:00 and 7:00 p.m. They arrived in Maniwaki somewhere between 8:00 and 9:00 p.m.
St. Michael remembered that they did not travel directly to where the wood processor and conveyor were left. They stopped at a gas station in Maniwaki.
St. Michael could not recall stopping at a restaurant en route to get coffee.
He could not specifically recollect whether another vehicle passed them en route. He was quick to point out that this incident occurred some four years prior to him giving his testimony at trial.
He believed that Wiggins was upstairs in the gas station for roughly 10 to 20 minutes speaking with Butch. St. Michael did not actually see Butch hand any money to Wiggins.
When Wiggins came downstairs, he asked St. Michael if he needed beer. St. Michael bought beer and chips. Wiggins paid for the items out of the envelope of money.
Together with Edmonds, the three men then followed the individuals in a nearby truck. The ultimate destination for the wood processor and conveyor was only a few minutes away. Wiggins counted the money over that period of time.
St. Michael confirmed that the machinery was not set up when it was unhitched from Lawrence Edmonds’ and his truck. However, Wiggins did show them how to work the pair.
Wiggins put a tree into the machinery to allow its new buyer or buyers to try it out.
St. Michael agreed that he knew Wiggins stole from Bancroft. He recalled an incident at the Bayshore Mall in Ottawa where Wiggins stole counterfeit money from Bancroft. However, most of St. Michael’s knowledge was based on things Bancroft told him.
St. Michael conceded that he did not call Bancroft to confirm that Wiggins was taking the wood processor and conveyor with Bancroft’s knowledge.
St. Michael acknowledged that he neglected to do so even knowing that Wiggins had stolen from Bancroft in the past.
However, St. Michael pointed out that Wiggins and he did meet up with Bancroft in Ottawa following the sale of the machinery, so that Wiggins could hand over an envelope of cash to Bancroft.
St. Michael recalled specifically that Bancroft was seated in his white crew cab truck, a vehicle which Bancroft was renting at the time.
Wiggins and he passed by Bancroft and pulled in front of him. St. Michael could see Bancroft through the windows of his GMC Sierra pickup.
In referring St. Michael to his initial statement given to police, he agreed that he had said that Wiggins and he got out of a truck and into a car. However, St. Michael testified that he meant to say truck.
When St. Michael gave his statement to police as well, he stated that he parked beside Bancroft as opposed to in front of him.
St. Michael confirmed that Wiggins and he exited the GMC Sierra and walked to Bancroft’s vehicle. Bancroft rolled down his window and Wiggins got into Bancroft’s vehicle.
St. Michael specifically recalled that Bancroft paid him $100.00 from the envelope Wiggin’s handed over to Bancroft.
St. Michael could not remember Wiggins paying any money to Edmonds.
St. Michael conceded that he could have been driving Bancroft’s white dually style truck as opposed to his own GMC truck. St. Michael knew that he returned directly to his residence from Ottawa. However, he denied that he has ever hauled the wood processor.
St. Michael approximated that the time of Wiggins and his meeting with Bancroft in Ottawa was 10:00 or 11:00 p.m.
The following day St. Michael testified that there was a snowstorm. Its magnitude was significant. Travel was limited. No work could be done at Bancroft’s residence.
Further, St. Michael confirmed that the day of the snowstorm he came into possession of Bancroft’s dually pickup, but he could not recall how.
The day after that, St. Michael and Blakely likely shoveled around the workplace for a while. Bancroft then telephoned St. Michael. St. Michael asked, “What are we going to do?”
Bancroft replied, “Process firewood.”
St. Michael texted in response, “The processor is not here.”
Bancroft proceeded to tell St. Michael to pretend he was surprised about the disappearance of the processor. Essentially, Bancroft wished for St. Michael to telephone or text him with false information. Bancroft wanted St. Michael to claim that Blakely and he discovered upon their arrival at work that the wood processor was missing.
St. Michael did recall Detective Constable Snider coming to Bancroft’s residence and worksite in February 2016. St. Michael agreed that he did not tell police then that he knew the whereabouts of the wood processor. He explained that he did not inform police of its location at that time because he was still in Bancroft’s employ.
St. Michael contended that he would have reported its disappearance to police if he had not been involved in transporting it.
St. Michael explained that he walked away from working for Bancroft because he was sick and tired of doing all sorts of crime with him.
When asked about his relationship with Bancroft’s common-law partner, Zilney, St. Michael confirmed that she accused him of stealing a bike. She also accused him of calling her the “c” word. St. Michael did not recall asking Bancroft, “How many hours do I have to work today for that cunt to buy a purse?”
At the time that the wood processor and conveyor was transported to Québec, St. Michael stated that it was possible that the machinery had been readied to go.
St. Michael was aware that Edmonds was familiar with the roads, as a trucker, in both Ontario and Québec.
St. Michael believed that Wiggins was previously acquainted with Butch, the buyer of the wood processor in Quebec.
St. Michael estimated that Edmonds, Wiggins and he were at the ultimate location where the machinery was left for a good half hour.
St. Michael disagreed with what Wiggins told police that both Wiggins and St. Michael were given $1,000.00 each from the proceeds of sale for the machinery.
St. Michael reiterated that he received only $100.00. He did not know what Wiggins and Edmonds each received.
St. Michael denied that he knew the whole plan as Wiggins had suggested to police. Equally, he refuted the suggestion that he was eager to do the job.
St. Michael recalled that it was about September 6, 2017 or thereabouts that Bancroft sent “Rick” to beat him up.
Under re-examination, St. Michael confirmed that he remains scared about what is going to happen to him.
On July 19, 2019, Edmonds testified that he was born and raised in Renfrew County. He has farmed all his life. He has a trucking business on the side.
He knows Bancroft. Edmonds used to haul lumber from Shaw’s in Pembroke to Bancroft’s work yard in White Lake. He would unload it right at the gate to Bancroft’s property.
Edmonds was aware as well that Bancroft made board and batten out of pine for cottages.
Edmonds knew what a wood processor was used for. He only ever saw one on Bancroft’s property. It was big. It had a cab. It also had an elevator that piled the lumber.
Edmonds recalled an occasion a few years ago when Bancroft phoned him in the morning, because he wanted his wood processor moved right away.
Edmonds explained to Bancroft that he could not go to his property until 4:00 p.m. Bancroft told Edmonds that he would not be there at that time, but his workers would be.
Edmonds assisted in moving the wood processor and the elevator. He followed Bancroft’s workers to the location it was to be delivered. The wood processor was all folded up and ready to go upon Edmonds’ arrival at Bancroft’s property. The elevator was already hooked up to another truck.
Edmonds did not know the names of Bancroft’s workers. Both were male. Every time Edmonds went to Bancroft’s property, they were different.
Edmonds drove his Ford F250, black in colour, to pull the wood processor. He believed the other truck used to haul the elevator was a Chevrolet. He did not recall the colour of it.
Edmonds drove alone in his truck. They stopped at a gas station.
They crossed the Portage Bridge into Québec. Edmonds did not know the name of the town where they eventually stopped. He recalled driving for half an hour or so within Québec. He did not recall refueling his vehicle that evening.
Ultimately, he dropped off the wood processor in a big yard with piles of logs. He was told to unhook the machine and he did so. He believed it was 10:30 or 11:00 PM before he left to go home. He used his GPS to do so.
Edmonds did not see any money exchange hands. He was not paid right away. He knew Bancroft would not be there at the property in any event.
Edmonds thought he received $300.00 for doing the job.
Bancroft had explained to Edmonds that his dually truck had broken down. Bancroft could not tow the wood processor himself. He therefore needed Edmonds’ assistance.
Edmonds figured that Bancroft just had a big job to do over in Québec.
Edmonds was unaware that Bancroft had reported the wood processor stolen. He did not know about that until he read about it in the newspaper. Apparently, Bancroft was taking wood orders and not delivering on them.
Edmonds did not wonder about the wood processor. It was not until some five years later, he reckoned, that he read about the incident in the paper.
When shown a photograph taken by police upon locating the wood processor in Québec, Edmonds confirmed that it looked like the one he was involved in moving there.
Under cross-examination, Edmonds agreed that he did quite a bit of business with Bancroft over the years.
Edmonds recalled one instance where he went to Belleville to pick up a forklift for Bancroft.
On another occasion, Edmonds remembered bringing a wood processor to the Peterborough/Lindsay area at or about the time Bancroft acquired it.
Edmonds could not say for sure whether it was the same one that he delivered to Québec.
Edmonds could only recall those two incidents where he assisted in moving a wood processor for Bancroft.
Edmonds confirmed that he followed Bancroft’s workers the whole way in delivering the wood processor to its destination in Québec. He did not remember ever being out in front of them with his vehicle.
Edmonds agreed that Bancroft has never asked him to do business with him illegally.
Edmonds recalled that the roads were bare when he set out on the journey delivering the wood processor to Québec. On his way home, Edmonds recalled that it was snowing.
Edmonds acknowledged that Bancroft was not present when he arrived at the property to hook up the wood processor. However, when it was suggested to Edmonds that he did not hear from Bancroft after he completed the delivery of the wood processor and elevator to Quebec, Edmonds denied this. He maintained that Bancroft did call him on the phone thereafter.
Wiggins was 39 years of age at the time he testified on July 18, 2019. He typically resides in Ottawa.
Wiggins came to know Bancroft through a friend at a lumber mill. He reckoned they first met in 2009.
Wiggins was familiar with how a wood processor operates. He described the machine as one which accepts logs into it. It then cuts them into 8 to 14 inch lengths, and splits them into two to become firewood. The cut segments of logs then fall into piles as they come off the conveyor.
Wiggins believed it was in 2016 that he last worked for Bancroft.
Wiggins was aware that Bancroft once had two wood processors in his possession. A smaller one he obtained with his nephew, Robert. The bigger one had a 16 foot long conveyor and a blade 6 feet in diameter. Wiggins understood this machine to be the biggest one which the manufacturer sells. It had a four-cylinder engine.
Wiggins believed that Robert still had the smaller one.
Wiggins explained that the bigger wood processor went to a friend of his, Butch, in Maniwaki, Québec. Butch was in turn a friend of Wiggins’ grandfather.
Wiggins made the arrangement for the sale of the bigger wood processor. He collected the money from Butch.
Wiggins paid St. Michael and the other driver for the assistance they gave him transporting the wood processor to Québec. The other driver was the same person who normally delivered logs to Bancroft.
St. Michael and Wiggins were in the truck that pulled the conveyor. Wiggins believed that truck to be a rental, a white Chevy.
The other driver followed them on the back roads to Québec. Wiggins believed the driver was operating a purplish or burgundy coloured, dually truck. It had a fifth wheel so it could pull the wood processor.
The three travelled together directly to Maniwaki. They stopped at the Crevier gas station where Bancroft and Wiggins had been earlier to arrange the deal with Butch.
Wiggins testified that he later gave the rest of the money from the sale of the machinery to Bancroft.
Wiggins spoke to Bancroft before arranging the sale with Butch. Bancroft could no longer afford the wood processor. It was Wiggins understanding that Bancroft’s insurance company would pay for its loss.
Wiggins stated that he received $10,000.00 from Butch in his office upstairs in the gas station for the machinery. Butch put the cash in an envelope for Wiggins.
Wiggins did not have to count the money. He trusted Butch.
Wiggins believed that it was in 2017 that the wood processor and conveyor were sold in Québec. It was cold. However, Wiggins was not sure, it could have been in the fall.
Wiggins was sure that the machinery was moved late at night, when there was less chance that they would be stopped by the authorities.
Wiggins knew the Maniwaki area. He has a cottage in Grand-Remous.
Wiggins described Butch as a wealthy businessman. He owned the Crevier gas station in Maniwaki.
Upon arrival in Maniwaki with the machinery still hitched to the two trucks, Butch instructed Wiggins to follow another truck parked outside the gas station.
Wiggins went downstairs. He paid the cost of refueling both trucks. Together they then followed the man in the other truck, a francophone, some 5 or 10 minutes from the gas station where the machinery was ultimately unhitched.
Wiggins quickly showed the man how to run the machinery. He put a little log into it. It only took 12 to 15 minutes to explain the operation of it.
Thereafter, St. Michael and Wiggins went to Ottawa near where Wiggins’ father lived in the Parkdale area.
Wiggins met Bancroft outside a Pizza Pizza outlet. This meeting place was arranged before Wiggins, St. Michael and Edmonds departed for Québec with the machinery. Wiggins thought that Bancroft was in a van waiting for St. Michael and him.
After paying $1,000.00 to St. Michael, Edmonds and himself, Wiggins handed over the balance to Bancroft. Bancroft was to pay more to Wiggins when the insurance money came in.
After their meeting in Ottawa, Wiggins believed he next saw Bancroft 3 to 4 days later. Bancroft told Wiggins he had reported his wood processor as stolen.
Wiggins did not consider it his “department” to take care of the insurance.
Wiggins acknowledged that he was not happy about being in court to testify against Bancroft. Wiggins described himself as someone who has a heart. He readily admitted that his life revolved around criminal activity and drugs.
However, Wiggins explained that Bancroft and he worked legally and illegally.
Wiggins stated that the police found where the machinery was with his help. It was still in the same place where it had been left some two years earlier.
Wiggins conceded that he only told the police half the truth when he gave his initial statement. He lied to protect Butch.
Ultimately, Detective Constable Snider and Detective Constable Holmes collected Wiggins at the Brockville jail. They took him with them to Maniwaki. He brought them specifically to where the machinery was located.
In speaking of his motivation to testify against Bancroft, Wiggins maintained that he was following his mother’s advice to tell the truth. He did not deny any self-interest. He was trying to get out of jail earlier than he otherwise might. As an example, he explained that if the Crown Attorney who was examining him at that very moment in Pembroke were to call the Ottawa Crown Attorney’s office and put in a word for him, his next sentence may be 30 days instead of four months.
Wiggins conceded that a year ago, when Bancroft and he shared a jail cell, he assured Bancroft he would not testify against him. Wiggins was unsure of what consequences he may face for now having done so. To Wiggins’ knowledge, Bancroft was doing the same against people more dangerous than Wiggins.
Wiggins stated that he did not like St. Michael very much. He could not trust him.
Wiggins downplayed the role St. Michael played in disposing of the machinery. He considered St. Michael’s participation to have simply been a truck driver. St. Michael was not responsible for planning the insurance scam.
Wiggins denied that he ever spoke to St. Michael after delivery of the machinery. If Wiggins had gone near St. Michael, Wiggins was sure that St. Michael would have called the police.
Wiggins described St. Michael as a “heat bag”. They were not friends.
In summing up his decision to testify against Bancroft, Wiggins stated that he was “ . . . ratting out a rat”.
Wiggins believed he was doing the right thing. He had to cooperate with the authorities.
Wiggins acknowledged that his criminal record is long. It is replete with crimes of dishonesty, drug offences and breaches of court orders. It commences in 1995 when Wiggins was still a youth. Almost yearly, Wiggins added to it. No significant gap in it exists.
Wiggins had been out of custody for just three weeks prior to giving his evidence in chief.
Wiggins surmised that he could have said no to Bancroft’s proposal to defraud his insurer. However, Wiggins explained that Bancroft made him feel guilty on a number of occasions. Bancroft has helped him out in the past. When Wiggins was in jail, he would send money to him at Christmas time. When Wiggins was working in Edmonton, Bancroft sent money for him to come home.
Wiggins understood that if the insurer had paid Bancroft’s claim for the supposedly stolen wood processor, Bancroft would get a higher cut because he had paid for everything. Essentially, Bancroft was the financier of the plan. Wiggins nevertheless expected to receive a portion of any insurance payout from Bancroft. That was Wiggin’s understanding of their agreement.
When cross-examination of Wiggins commenced on September 4, 2019, he was back in custody.
He thought that the disposition of the bigger wood processor occurred before Christmas. He said he was mistaken if he had said it occurred in 2017. He would not be surprised if it occurred in 2015. He was not away in Alberta between 2014 and 2016. Rather he was out West between 2014 and 2015.
He was involved in a motor vehicle accident in 2014. He returned to Ontario in 2015.
Wiggins recalled that Bancroft and he were hurting for money. They came up with the notion together of getting rid of the wood processor.
Wiggins remembered that Bancroft drove him to Maniwaki to meet Butch to determine if he had any interest in the machinery.
Wiggins agreed that the day the machinery was transported to Québec, Bancroft was away with his girlfriend, Zilney.
Wiggins was clear that the idea to sell the machinery and claim it was stolen was both Bancroft’s and his.
Wiggins’ recollection, on the day machinery was delivered to Québec, was that he was working with St. Michael. They finished an order. They put a load of lumber in the van.
Bancroft and his girlfriend, Zilney, drove away with the small load in the van, or perhaps a rental truck.
After they left, the machinery was readied and transported during the evening hours.
Following its delivery, Wiggins and St. Michael then met with Bancroft in Ottawa. Wiggins was not sure of the exact time of the meeting. He told police that it was somewhere around 12:30 a.m. or 1:00 a.m. When it was suggested to him that St. Michael placed the meeting at approximately 10:30 p.m., Wiggins agreed that it could have occurred earlier.
Nor was Wiggins certain as to whether Bancroft was waiting in a van or a rental truck. However, as Wiggins put it, “It doesn’t change the fact that we [St. Michael and Wiggins] met you there.”
It was Wiggins’ belief that Bancroft did not report the machinery stolen until the next day.
Wiggins was adamant that Bancroft and he disposed of the processor together. Bancroft was the brain behind the plan.
Wiggins reaffirmed that Bancroft was paid $7,000.00 after St. Michael, Edmonds and he each received $1,000.00 from the proceeds of the sale. Wiggins thought he saw Bancroft pay St. Michael’s share. However, Wiggins was not entirely sure whether he paid St. Michael, or Bancroft did. Wiggins was doing what Bancroft told him to do.
Wiggins conceded that it was a lie if he had stated to police that Bancroft told him to pay St. Michael $7,000.00. Equally, it was not true if he told police that the arrangement to sell the processor was made at a restaurant in Brennan’s Hill.
Speaking of his motivation for testifying against Bancroft, Wiggins stated he was doing so for his mother and his daughter. Essentially, he was getting nothing from the authorities in return. He was owning up to his crimes. He loved Bancroft like a brother. He was sorry for having to testify against him. He felt like “a real coward” and “piece of shit” as a result.
Wiggins explained that he never had a problem working with Bancroft. Indeed, Wiggins attributed much of the mess in which Bancroft found himself was caused by crimes committed by his sister, Karen, and his nephew, Robert, in the lead up to the decision to dispose of the wood processor and conveyor.
When it was suggested to Wiggins that his desire not to have Butch charged with a criminal offence for buying the machinery was a favour he received from the authorities, Wiggins denied that he received any benefit from that decision, assuming any such decision was made.
Wiggins was referred to a letter or note which Detective Constable Snider had written on his behalf to the Crown Attorney in Brockville, when Wiggins was being sentenced on outstanding charges he had there. Wiggins maintained again that he received no benefit in having given police information about criminal wrongdoing on the part of Bancroft. Wiggins explained that he was simply owning up to crimes he committed. He believed the letter was being used to assist him in getting into a treatment program for his drug addiction. Wiggins denied that he ever saw the content of the letter.
Wiggins pointed out that it was not Detective Constable Snider who suggested he should try to “wheel and deal” with the numerous charges he had outstanding. Rather, this was Wiggins’ lawyer’s suggestion to him before he gave a statement to police.
Wiggins agreed that he was not completely honest with Detective Constable Snider when he gave his statement of May 30, 2017. As an example, Wiggins stated that if he had committed 68 crimes, which were still under investigation, he would tell Detective Constable Snider about four. If Wiggins gave Detective Constable Snider everything, as Wiggins put it, “I probably won’t get out ever.”
Wiggins bemoaned the fact that he is a drug addict. He sold a machine worth $100,000.00. For it, he received $1,000.00. He mused that he is often used by both police and criminals in his desire for drugs.
Wiggins readily conceded that Bancroft attempted to dissuade him from breaking and entering certain construction trailers with St. Michael. Wiggins credited Bancroft for trying to get him to stay away from drug use.
Wiggins clarified that when he gave his first statement to police on May 30, 2017, he did not have a real problem with drugs. He did do a bit of cocaine. He also drank. In 2018 however, he developed an opiate addiction. He lost a finger over fentanyl as a result.
Wiggins conceded that police appeared to him to be more interested in finding the person who was responsible for “fencing” stolen property than the person who stole it. However, Wiggins added that he did not know how to even start a tractor until he met Bancroft.
Wiggins denied that Detective Constable Snider threatened him in any way to provide a statement against Bancroft. When Wiggins and Bancroft shared a jail cell in Lindsay, Wiggins agreed that he told Bancroft that he would not come to testify against him. He apologized in giving his evidence under cross-examination to Bancroft for having changed his mind. He maintained that he was not making 10 cents to be in the witness box at that very moment.
Wiggins emphasized that he had never testified against anyone in the past. He was only put into the position he found himself because of Bancroft. His family members implicated him. That is why Bancroft and he both found themselves charged with offences surrounding the wood processor.
Wiggins reckoned his evidence against Bancroft would not save him any time which he [Wiggins] would have to spend in jail. Wiggins did not think he would receive any lesser punishment as a result. Bancroft and he were where they were because they needed money. Bancroft did not want to lose his brother’s house. Before Wiggins knew Bancroft, Wiggins knew nothing about processors, tractors and other heavy equipment.
The benefit Wiggins expected to receive was the $10,000.00 which Bancroft promised to pay to him upon receipt of an insurance payout.
When it was pointed out to Wiggins that he said in his statement to Detective Constable Snider on July 19, 2017, “I’m ready to just sing”, Wiggins explained it was an expression of his commitment to keep his end of the bargain. He maintained nevertheless that he did not want to be in court giving evidence against Bancroft.
Wiggins denied that Bancroft hired him to work in his lumber mill. Rather, Bancroft hired him to do crime.
Under re-examination, Wiggins confirmed that he did speak to Bancroft two or three times while he was in custody. He told Bancroft about the charges he was facing involving tractors and the wood processor.
For a time, Wiggins was prepared to take the charges for Bancroft. Those charges involved receiving payments for lumber from customers, but not delivering the product to the customers.
Bancroft told Wiggins that “Travis” would visit him in jail. Travis did show up with the paper which had customers’ names and other stuff written on it. However, Wiggins decided he was facing enough charges. He did not want more.
To Wiggins’ recollection, Travis offered Wiggins $10,000.00 if he were to take the charges. Bancroft never came up with the money.
Instead, Bancroft trashed Wiggins’ name telling everyone Wiggins was a rat when they originally ended up in the Lindsay jail together. It was at that point that Wiggins told Bancroft that he [Wiggins] would not show up to court to testify against him [Bancroft].
Wiggins agreed that he was leading Bancroft on in doing so. Wiggins wanted to live a better life in jail. It also alleviated his concerns for his safety while in custody.
Wiggins explained as well that Bancroft wished for him to testify at Bancroft’s trial to say Wiggins did it all on his own when he sold the wood processor to Butch in Québec.
Wiggins confessed that he would have been happy if he had received $10,000.00 as he was promised in the beginning by Bancroft, should an insurance payout have been made.
Kevin Atwater (“Atwater”) has been a snowplow driver in winter for the County of Renfrew for several years. Frequently, his job duties require him to cross Highway 17.
When Atwater testified on July 18, 2019, he recalled one December as he was ending his shift between 8:00 or 8:30 p.m., he followed what he thought was a hay elevator and a wood mill.
He recalled that a white Chevrolet dually pick up was towing the wood mill. He thought it was an odd time of night for such a machine to be transported.
A darker half ton truck was hauling the hay elevator.
Atwater did not personally know Bancroft, but knew of him. Atwater believed the white Chevrolet dually truck was the one he had seen parked often on Bancroft’s property in White Lake. It was not a common vehicle. As a snowmobile club volunteer, Atwater crossed Bancroft’s property on a number of occasions. He was therefore familiar with Bancroft’s wood mill operation near his residence.
The wood mill which was being towed by the white Chevrolet dually truck was not a common piece of machinery either.
In referring to his statement originally given to police, Atwater was able to zero in on the date he witnessed the transportation of the wood mill as December 29, 2015.
The trucks pulling the machinery were not travelling fast. Atwater passed both vehicles when he was on his way home on Storyland Road.
A few days later at work, Atwater heard that the wood mill had been stolen. He chuckled and told his boss how he had seen it on the road being towed. In turn, his boss suggested that he should speak to the police. Atwater then gave a statement to Detective Constable Snider.
Under cross-examination, Atwater indicated that his boss and he checked through salt records to determine that the date was December 29, 2015. He also agreed that a significant snowstorm occurred on or about that date.
The white Chevrolet dually truck, Atwater explained, he had seen on Bancroft’s property twice a day for roughly 6 months prior to December 29, 2015.
Atwater disagreed with the suggestion that it was a 2013 vehicle. It had a rounded front end. Atwater could not say whether it was an extended type truck.
Nothing about the colouring of the wood mill stood out in Atwater’s mind. Nor could Atwater recall any lighting being on the machinery, which was being transported.
Bernard Dumont (“Butch”) has lived in Maniwaki, Québec for over 50 years. He has had the nickname Butch for a long time.
Butch owns and operates several businesses including a gas station, a grocery store and an office supply store.
Prior to engaging in these entrepreneurial activities, Butch was a police officer for 25 years.
Alain Charbonneau (“Charbonneau”) was an employee of Butch for some eight years.
Roughly 3 years ago, a gentleman offered to sell to Butch a wood processor. He left his phone number with Butch. His name was either Ron or Roy.
The gentleman called Butch back on several occasions thereafter. Butch mentioned to Charbonneau the gentleman’s proposals to sell a wood processor.
Butch gave to Charbonneau the gentleman’s telephone number.
Butch next saw the gentleman when he showed up at his gas station in Maniwaki. Butch had some advance notice that the gentleman was coming. Either Charbonneau or the gentleman himself told Butch to let him know.
Butch agreed to finance the acquisition of the wood processor for Charbonneau.
Charbonneau wished to borrow from Butch $20,000.00. Butch agreed to lend him the money.
Butch had no idea what the actual value of the wood processor would be.
The gentleman arrived at his gas station. Butch explained that his office is on the second floor.
Butch saw from his window two trucks pull into the gas station. One was towing the wood processor with a conveyor. The other truck was not pulling anything. He thought that it would have been between 7:00 and 9:00 p.m. when the trucks arrived. It was winter.
Butch could not say with any certainty what year it was. However, he knew that he loaned Charbonneau the money in 2015 or 2016. Butch is charging interest on the loan. Charbonneau had not paid the loan in full by the time Butch testified on June 14, 2019.
Originally, Butch testified that no one came to his office. He contended that he gave Charbonneau $20,000.00 in cash earlier in the day.
Butch initially gave evidence that Charbonneau was sitting across the street from the gas station in his vehicle waiting for the gentleman to arrive. He denied seeing any interaction between Charbonneau and the gentleman. He did nevertheless see the trucks leave.
Upon reviewing the statement he originally gave to police, Butch’s memory was refreshed. He then recalled it was his idea to have the gentleman meet him at the gas station. He received a telephone call from the gentleman. The gentleman’s name he believed was “Roy”.
Butch remembered that Roy and he did meet in his office. He believed he made a payment of $10,000.00 in cash to Roy for the wood processor on Charbonneau’s behalf. Charbonneau was not in the office when the money exchanged hands.
Butch instructed Roy to follow Charbonneau and to bring machinery (the wood processor and the conveyor) to where Charbonneau would lead them.
Butch believed that the money was in $1,000.00 bundles made up of $20.00 bills that he handed over to Roy.
Butch next saw the wood processor at a property he owns at 300 Devlin Street in Maniwaki. It was left on his 3 acre lot there.
Butch denied that he ever saw Roy again after their meeting. Sometime later, the police came to Maniwaki to ask Butch about the wood processor. He told the police where it was located. He did not take police to it.
A while thereafter, Detective Constable Snider showed Butch a warrant for seizure of the wood processor. The police then took it away with them.
At the time that Butch agreed to finance Charbonneau’s acquisition of the wood processor, he did not research the value of the machinery. Butch was dealing with Roy. Roy had mentioned that his friend who owned it had insurance. Butch was more interested in helping Charbonneau, his friend and employee, than making further inquiries.
However, after Butch googled the type of machinery it was to determine its value, he wondered whether something was either wrong with it, or whether it could be stolen.
When the wood processor was acquired, Butch did not do anything to satisfy himself of the truth of whether the machinery was being sold legitimately.
To the best of Butch’s recollection, the transaction took place in January or February 2016. Butch was never charged for his involvement in the deal. Nor was he ever told he would be.
Butch denied that there is any discussion with the authorities about any benefit he could receive for his involvement in their investigation. He was embarrassed by the whole situation. He had been a police officer for 25 years. While testifying, he mused how he could even get himself in the middle of it. Ultimately, he concluded that he was trying to assist his friend, Charbonneau.
Butch did not recall ever seeing Bancroft when the acquisition of the wood processor was negotiated. Butch does not know Bancroft. Nor was Bancroft’s name ever mentioned to him.
Butch did not make any claim to the wood processor after it was seized by police. Nor is he involved in any litigation as a result of its loss.
Butch recognized the photo taken by police of the wood processor on his property at 300 Devlin in Maniwaki, which photo was made Exhibit 13 at trial. He was able to identify the wood processor in question as the one acquired by Charbonneau from Roy.
Under cross-examination, Butch recalled that he saw two trucks the night the machinery was delivered. One was possibly a half ton, the other possibly a three-quarter ton. Both he seemed to remember were two-tone trucks. One he believed was white mainly, the other, black, but possibly blue or green as well. It was dark.
Butch confirmed that to his recollection, he gave Roy 10 bundles of $1,000.00 each. Butch believed he placed the money for Roy in an envelope. Butch did not think Roy took the time to count it.
Butch doubted that a person standing on the ground below could see what anyone was doing in his office.
Butch contended that the first time he ever met with Roy face-to-face was when Roy asked about any interest Butch might have in a wood processor. Roy was looking for a buyer for it. The second time he saw Roy was when they met in his office.
Butch indicated that he recorded the debt owed by Charbonneau for the wood processor and conveyor as “Roy’s toys”.
Butch reckoned as well that when insurance was mentioned by Roy to him, it was possible that the person who owned the machinery may have received a payout from a motor vehicle accident. That person could then have decided to dispense with his machinery.
According to the research Butch did into the value of the machinery, he believed it to be worth somewhere between $250,000.00 and $300,000.00.
Butch agreed that if someone stole an item of that value from him, he would report it to the police.
Any reluctance Butch exhibited in speaking to police about the machinery in question, he attributed to his embarrassment.
Butch did not believe that he received any form of promise or assurance from the authorities that he would not be charged when he gave a statement to police.
Andrew Kasaboski (“Kasaboski”) gave evidence that he was Bancroft’s neighbor and a former employee at his lumber yard.
He recalled his last day of work for Bancroft was September 22, 2015. It was a tragic day. Basil Borutski (“Borutski”) visited the yard that day looking for Bancroft – the same day Borutski murdered three women at three different locations in Renfrew County.
In speaking of wood processors, Kasaboski was only ever aware of Bancroft owning a big one.
When Bancroft refreshed Kasaboski’s memory about a smaller wood processor Bancroft once had, Kasaboski remembered that it was “ a little tiny one – like a chainsaw”. It had been repossessed “many, many years ago”. It was “not even in the same ballpark” as the bigger one.
Detective Constable Snider testified that he was granted the search warrant authorizing him to locate and seize the wood processor on July 5, 2017.
On July 6, 2017, Detective Constable Snider found the wood processor. It was still situated at 300 Devlin St. in Maniwaki, Quebec. Charbonneau was residing in a small, camper trailer on that property as well.
Detective Constable Snider returned the wood processor to Ontario where it remains in the possession of the police to date.
Constable Cassidy has been a member of the Renfrew OPP for 21 years.
On December 30, 2015 he was dispatched to attend at Bancroft’s residence at 111 Burnstown Rd. in White Lake, Ontario.
Bancroft wished to report the theft of two wood processors and conveyors. When Bancroft made his report, St. Michael was present. One of the wood processors, Bancroft told the officer, was of a value of $135,800.00. The other, Bancroft valued at $62,200.00.
Constable Cassidy obtained the serial numbers for both wood processors.
Bancroft was able to provide documentation to verify the serial numbers for both. Constable Cassidy looked at the documentation to ensure that he properly noted the correct serial numbers.
Constable Cassidy recalled that there had been a heavy snowfall the day before on December 29, 2015.
It prevented Constable Cassidy from being able to investigate any marks, tracks or remnants of the machinery having been moved.
Bancroft attributed the first notice of the wood processors and conveyors missing to St. Michael. He told Constable Cassidy that St. Michael, his employee, arrived at work at approximately 2:30 PM the previous day, December 29, 2015.
Bancroft told Constable Cassidy that he had left his residence/workplace on December 28 around 5:00 p.m. when he finished work for the day. He returned home around 7:00 p.m. the same evening. He did not see anything suspicious at the time of his arrival.
Constable Cassidy asked Bancroft on the day he reported the missing machinery about insurance. The officer did not hear back from Bancroft on the subject.
Constable Cassidy remarked that when he was with Bancroft and St. Michael to take the statement, Bancroft appeared normal. Later, partway through giving his statement, he began to cry.
Under cross-examination, Constable Cassidy conceded that when he took the statement from Bancroft, there were a lot of folders and papers everywhere, which Bancroft consulted.
Constable Cassidy informed Bancroft that because of the dollar amounts involved, a detective would likely be assigned to the case.
Constable Cassidy agreed that Bancroft spoke of his bad luck when talking about the wood processors.
St. Michael pointed to the area behind Bancroft’s residence where the wood processors had been located.
The snow which had recently fallen was so deep that no marks would be visible to indicate the movements of the missing machinery.
When Detective Constable Kohls testified on September 5, 2019, he had been a member of the Ontario Provincial Police for 24 years.
On February 1, 2016 Detective Constable Snider contacted him and asked him to assist in investigating a complaint of the theft. Both Detective Constable Kohls and Detective Constable Snider met at the Arnprior detachment of the OPP that same day. Detective Constable Kohls understood that Bancroft, the complainant, was seeking the assistance of the police in locating two wood processors, Cord Kings, one being of an approximate value of $135,000 and the other being of an approximate value of $62,200.
Detective Constable Snider left a voicemail message for Bancroft. Bancroft called him back. Bancroft then arrived at the detachment at roughly 3:15 PM to provide a statement to police.
Bancroft was not placed under arrest or detained while speaking with the officers.
Bancroft commenced an audio and video recorded statement at 3:16 PM.
At the outset of the police interview, Bancroft swore before the Commissioner of Oaths that he would be completely truthful with the information he provided to police to assist in their investigation of the missing wood processors.
Equally, Bancroft was cautioned as to the potential for criminal charges being laid against him should he not be truthful with the information he provided.
Detective Constable Kohls confirmed that Bancroft did not ask to leave at any point during the interview.
Police made no promises or offers to Bancroft in providing the statement. He was treated at the time as a victim of a crime.
Under cross-examination, Detective Constable Kohls confirmed that Bancroft and Detective Constable Snider stepped out of the interview room after some two hours into the giving of the interview.
Detective Constable Kohls understood that Detective Constable Snider was going to look for a Consent Form to allow police to access Bancroft’s cell phone records for incoming and outgoing calls and text messages at or about the time of the alleged theft on December 28, 2015.
When it was suggested to Detective Constable Kohls that it was strange that both officers did not exit the interview room with Bancroft, Detective Constable Kohls disagreed.
At the time that Detective Constable Snider began his testimony on September 5, 2019, he had retired after a 32 year career with the OPP. For over 30 years, he had been a member of the Crime Unit.
Detective Constable Snider recalled that at the end of January 2016, he was approached by a fellow officer and asked to assist in an investigation of missing wood processors. That same day, Detective Constable Snider attended a meeting with Sgt. Archambault and Constable Rebertz. From speaking with the other officers, Detective Constable Snider understood that the alleged theft occurred somewhere between December 28 and 30, 2015.
Sometime after 2 PM on February 1, 2016, Detective Constable Snider called Bancroft. He left a voicemail message for Bancroft identifying himself and indicating his desire to speak to Bancroft as a victim of a theft. Ten minutes later, Bancroft called Detective Constable Snider back.
Detective Constable Snider decided to conduct the interview with Bancroft in a KGB format. Bancroft’s statement would be taken under oath.
Detective Constable Snider warned Bancroft that he could be charged with a criminal offence if the statement he gave was not true.
Bancroft decided to give the statement under the conditions imposed by police. Detective Constable Snider did not notice any confusion or misunderstanding on Bancroft’s part in giving his statement under oath.
Detective Constable Snider confirmed that at the time Bancroft gave his statement, he was neither arrested nor detained. There was no compulsion for him to do the interview.
The video and audio interview of Kyle Bancroft taken by police on February 1, 2016 was played in open court. The recording of it was made Exhibit 20 at the trial. A transcript of the video and audio recorded interview was made Exhibit 21 at the trial.
Detective Constable Snider stated that he did not receive any type of follow-up statement from Bancroft. Detective Constable Snider made two follow-up calls, or perhaps three.
Detective Constable Snider had hoped to receive certain information such as lease agreements, a list of persons and their contact coordinates, and other particulars from Bancroft. However, Detective Constable Snider never heard back from Bancroft after February 1, 2016.
Two days after Detective Constable Snider received Bancroft’s signed Consent Form to allow police to access his cell phone records, Bancroft revoked his permission for them to do so. Under the circumstances, Detective Constable Limlaw was tasked with obtaining Production Orders for Bancroft’s cell phone records.
Detective Constable Snider denied that he ever, while outside of the interview room, made any offers or inducements to Bancroft to entice him to make a statement to police.
Equally, Detective Constable Snider denied he harboured any personal hostility or animus for Bancroft, when Bancroft confronted him that Detective Constable Snider sought to have Bancroft’s mother’s body autopsied following her death on May 14, 2017. Detective Constable Snider explained that he was merely acting on suspicions raised by Bancroft’s sisters, Karen and Karla, and their concerns surrounding their mother’s sudden passing.
According to Karen and Karla, Bancroft played a role in having their mother change her will a short while before she died.
Detective Constable Holmes testified that Bancroft first spoke to him personally on January 5, 2016. Detective Constable Holmes noted that the telephone number Bancroft called from was (613) 292-9211. Through further investigation, Detective Constable Holmes learned that another telephone number associated to Bancroft was (289) 387-1515.
Under section 30 of the Canada Evidence Act, the Affidavit of Marlo Denny, a Security Operations Manager with BCE Inc. (“Bell”) sworn September 9, 2019 was admitted into evidence as Exhibit 23 on the trial as business records. The records provided call details and tracking information for the Bell cell towers utilized by Bell Mobility telephone numbers (613) 292-9211 and (289) 387-1515 for the time period December 28 through 30, 2015.
The transcript of Bancroft’s video and audio recorded statement from February 1, 2016 commencing at page 6, line 197 and continuing to page 11, line 402 reads as follows:
Snider: . . . By swearing on the Bible, you swear ah if you swear an oath, swear an oath or solemn affirmation you are promising to tell the truth aware that if you deliberately mislead me, you’re committing a criminal offence. I will explain more about that shortly. Do you understand that?
Bancroft: Yes.
Snider: So, if you are prepared to make a statement to me under oath or solemn affirmation, I would like to interview you. It is very important that you tell the truth, the whole truth and nothing but the truth. I would like to record this interview in both audio and video, and that is why I have asked you to come here today. The recording of this interview helps ensure that there is no question later about what I have asked you in the answers that you have given. Let me pause here to remind you that you have the right to refuse to participate in this audio video recording interview, okay?
Bancroft: Yeah.
Snider: You should understand that when I have completed my investigation, it is possible that a person or persons will be charged with a criminal offence or offences. This investigation concerns the alleged offence or offences of theft of of the theft of two wood processors from your residence on the 28th to 30 December, 2015. In the event that a charge is laid, the police and crowns will be obliged by law to disclose this recording to the lawyer or lawyers who represent the person or persons charged. Do you understand that?
Bancroft: Yes.
Snider: The charged person or persons will have the right to watch and listen to this recorded interview for the purpose of preparing a defence to the allegation or allegations they face. Do you understand that?
Bancroft: Yes.
Snider: You should know that in some circumstances a portion of this recording or the recording in its entirety may be played in open court. The court could be asked to admit this interview as evidence of what you tell me today. This evidence could be part of the Crown’s case and leads that person being convicted, okay. Now I’d like to explain to you in a formal way the legal consequences of making a false statement to me, Kyle Bancroft, your name is there as you are aware I’m investigating the allegation or allegations of the theft of two wood processors from your residence on the 28th through to 30 December, 2015. The law requires that I read this caution to you and it is important that you understand it, caution. You must understand that it is a criminal offence under section 139 and 140 of the Criminal Code to obstruct justice or to commit public mischief by making a false statement to police during an investigation. You must further understand that you may be a witness at a trial regarding the events you describe in the statement, and that at no time, you, if you recant your statement or claim it to be false, it can and will be used at that trial and you may be liable to prosecution under section 137 of the Criminal Code of Canada for fabricating evidence, okay?
Bancroft: Yeah.
Snider: Finally, you must understand that you are not obliged to give the statement, and if any person has by words or acts attempted to persuade you to provided, you are to disregard those words or acts, and only give the statement if you freely choose to do so, okay?
Bancroft: Yes.
Snider: Do you understand your right to choose whether or not to make a statement?
Bancroft: Yes, I do.
Snider: Do you understand the criminal consequences of making a statement?
Bancroft: Yes, I do.
Snider: Are you voluntarily providing a statement today, which is to be recorded in both audio and video?
Bancroft: Yes.
Snider: And do you understand the caution which I read to you?
Bancroft: Yes.
Snider: Can you explain it in your own words?
Bancroft: Well, I read actually, I think you said a couple of times like a criminal charge if you give misleading or I can’t remember exactly what was said like in other words if you lie about it, you can be taken to court. All this can be used against you. That’s what I understood.
Snider: Okay.
Bancroft: Seems awful one-sided when you read it out to you like that. Holy shit.
Snider: And again also too, you mentioned you kept saying against you, but this could be for against anybody, if you mislead.
Bancroft: Yeah, but the way that’s worded, it’s like they’re out for a witch hunt for you.
Snider: Yeah.
Bancroft: You know what I mean? It’s all was like, if you do, you, you know like . . .
Snider: Yeah yeah and again, but this also, it’s not only against you, but you have to tell the truth about things towards . . .
Bancroft: Yeah, because I read the . . . I listen to one part where you said I may be called to testify. You know so, but up until that point, it was like it was all it was like a witch hunt or something.
Snider: Yeah.
Kohls: Well, just understand the importance that, when you’re in here, you have to tell the truth.
Bancroft: Yeah.
Kohls: If you’re not in a position where you feel you can tell the truth, you shouldn’t be in here.
Bancroft: Yeah.
Snider: And exactly, and yeah, as I explained before quickly in this type of investigation, as you know that you know sometimes people make false allegations, and especially if insurance companies and that are involved.
Bancroft: Ahum.
Snider: A substantial bit of money that they have a motive to give false statements, and this is to prevent that.
Bancroft: Yeah.
Snider: [Inaudible]
Bancroft:Yeah.
Snider: Okay, clear as mud?
Bancroft: Yeah.
Snider: Okay, in this part, our good friend, our Commissioner of Oaths, will read and go through it with you.
Bancroft: This is one uncomfortable chair.
Wren: It’s not very comfortable.
Bancroft: No . . . Well I got my leg wrapped to my knee in a cast, and it goes to my knee.
Snider: Would a chair like this be better for you?
Bancroft: I don’t know, yeah, this one’s okay. The edges dig right into the back of my leg.
Snider: Well, I can try to find one. You want me to try and find one?
Bancroft: I may break one of them. I can feel more comfortable on this one.
Snider: Okay, well you let me know when you can’t.
Wren: Can you put your hand on the Bible then?
Bancroft: Yeah.
Wren: Your statement is an important part of the police investigation. You must understand that it is a serious criminal offence to make a false statement to the police. If you make a false statement, you could be charged with a number of serious criminal offences including perjury, obstruction of justice, public mischief and fabricating evidence. You must understand that your statement might be used against you, if you are charged with one of these offences. Lastly, it is important that you understand the statement you provide may also be used at a trial for the incident being discussed here today. Do you, Kyle Bancroft, swear that the evidence that you shall give regarding this investigation shall be the truth, the whole truth and nothing but the truth, so help you God?
Bancroft: I do.
Wren: Sworn before me at the Town of Arnprior this first day of February, 2016. And now I’ll get you guys to witness it there [inaudible].
During the interview, Bancroft proceeded to tell police about how he acquired two wood processors-one of a value of roughly $140,000.00 and another of a value of roughly $62,200.00.
Both machines were insured through Economical Insurance Company (“Economical”). Bancroft drew on a piece of paper where the wood processors were located approximately on his property prior to being taken away, and labelled them No. 1 and No. 2.
Business was brisk according to Bancroft up to the time of the disappearance of the “machines”.
On December 28, 2015, Bancroft took his mother shopping around 2:30 or 3:00 p.m. He wished to return before the end of the workday around 5:00 p.m. in order to pay his two workers, St. Michael and Blakely. Blakely then accompanied Bancroft to buy alcohol. Bancroft reckoned he dropped Blakely, his next-door neighbour, off at his residence just before 7:00 p.m. Bancroft delivered some items for his mother as well, which she had forgotten to buy while they were in town earlier. He then returned home.
Around 9:00 or 9:30 p.m., Bancroft stated he went to meet a friend, Wiggins, in Ottawa. They sat down together in a restaurant and Wiggins had a pizza slice. Bancroft thought about hiring him as another worker, and Wiggins was looking for employment. However, Bancroft decided against it.
Bancroft’s girlfriend, Zilney, did not want Wiggins around, because he had stolen money from her purse in the past, she believed.
After meeting with Wiggins, Bancroft returned home to White Lake for the rest of the night. Bancroft estimated the round-trip from his house to where he met Wiggins in the Parkdale area of Ottawa would be roughly an hour and a half.
His meeting with Wiggins did not last long, perhaps 20 minutes to half an hour. Bancroft estimated he was home by 11:00 or 11:30 p.m.
Bancroft did not see or hear anything unusual during the night.
Bancroft mentioned that one would have to look back at his phone calls in order to know the timing of events.
The next day, Tuesday, December 29, 2015 there was a big snowstorm.
Blakely came by between 9:00 and 10:00 a.m. to shovel Bancroft’s step.
At approximately noon, Bancroft left to go to his girlfriend’s parents’ house in Petawawa. He returned home in the evening and stayed in the whole night. Again, he did not notice anything odd upon his arrival or during the night.
Blakely came to Bancroft’s residence on Wednesday, December 30 in the morning as well. His workers tended always to show up between 8:00 and 11:00 a.m.
His other worker, St. Michael, was late arriving that day. Bancroft expected them to work on firewood. St. Michael had still not arrived before Bancroft left for Petawawa to visit his girlfriend around 11:00 a.m. or noon.
Bancroft texted to St. Michael roughly two hours later to give him instructions on what to do. He expected St. Michael to be at the workplace by that point. St. Michael was, but responded to say that the wood processor was gone.
Bancroft spoke to Blakely as well to confirm that the wood processor was missing. Blakely said it was. He did not notice it was gone over the course of the previous two mornings. Neither of Bancroft’s workers saw any tracks in the snow leading to where the machine had been.
Bancroft ended his conversation with Blakely and St. Michael. He called a police officer he knew. He broke down crying as he related to the police what he had just been told. His girlfriend wrapped his legs due to a pre-existing, medical condition. He then returned home as fast as he could.
Bancroft also called his mother and the manager, “Dave” of CMI, to let them know about the disappearance of the wood processor. Bancroft also inquired of Dave about whether the machine was equipped with a GPS as a means to locate it. Dave did not know and promised to get back to Bancroft.
In passing, Bancroft mentioned that his mother watched over his home. She lived nearby. She would call Bancroft on occasion to ask, if she saw headlights in his driveway, to make sure it was him who had just arrived home.
Bancroft confirmed that his cell phone number was 292-9211.
After Bancroft got home to White Lake from Petawawa, he waited another 45 minutes for police to arrive. He then gave his written statement.
Bancroft suggested it may be his sister, Karla, or perhaps his nephew, Robert, who were behind the theft of his wood processor. Someone had broken into his home and stolen the hitch for pulling the wood processor. Bancroft learned later that Karla was calling CMI for the month prior to its disappearance asking whether Bancroft was up to date with payments on the machine. She was also suing him over the mortgage he persuaded his father to place on a property his parents owned in order to secure his acquisition of the big wood processor.
Bancroft went on to implicate his sister, Karen, too as having a motive to fabricate allegations against him. She had accused him of crimes he did not commit. She threatened litigation over entitlement to his father’s estate.
Bancroft attributed to Karla, Karen and Robert responsibility for breaking, entering and stealing wood and other miscellaneous equipment and machinery which Bancroft owned and stored on his property in White Lake.
Detective Constable Snider asked Bancroft to provide a chronology of the wrongs done to him by his family members, which could be investigated.
Bancroft did not ever provide any such information to police.
Detective Constable Snider denied any ill motive in investigating and charging Bancroft with the offences he allegedly committed.
Detective Constable Snider agreed that he did not take statements from either Blakely, Bancroft’s worker, or Zilney, Bancroft’s former girlfriend. Based on past experience as a detective, he felt that any information they provided to police would be unhelpful, biased and potentially untruthful.
Detective Constable Snider maintained that his only offer to both St. Michael and Wiggins was an assurance that he would speak to the Crown Attorney assigned to their prosecution about their assistance to and cooperation with his investigation.
Sgt. Hayley Sarault testified on August 19, 2020 that she knew of Bancroft. He ran a wood business out of his residence located at 111 Burnstown Rd. in White Lake, Ontario.
Sgt. Sarault stated that in 2014, she executed a search warrant at the residence of a man named Gaetan, or “Guy”. She located in his basement a marijuana grow operation.
Initially, she did not recall Wiggins being there at the time of the search. Nor could she remember receiving a telephone call from Wiggins the following day.
Upon being shown a photograph of Wiggins, Sgt. Sarault recollected that Gaetan Levesque, his wife and Wiggins were present when she conducted the search. She seemed to recall as well that a fake driver’s licence in the name of a “James Vincent” was seized from Wiggins that day too.
Sgt. Sarault could not remember taking any follow-up investigation into the phony driver’s licence. Nor could she recall giving $40.00 to Wiggins.
However, Sgt. Sarault explained that she has given money or a pack of cigarettes to people in the past, such as domestic violence complainants, for completely charitable reasons.
She reiterated that she could not remember giving any money to Wiggins. Nor could she recall attempting to recruit Wiggins to turn against Bancroft.
Bancroft’s employee, Levesque, testified that in or about Bancroft’s property, he knew of the existence of three wood processors. Bancroft’s nephew, Robert, had one located beside Bancroft’s property. The big one was located near the beach on the lakefront. The small one was located between the trailers beside the swamp.
The big one could do multiple logs, whereas the smaller one could only do one at a time.
Levesque remembered the big one developed a hydraulic leak. The machine had to be returned to CMI. It leaked again after an initial repair. Eventually, CMI had to engineer a new part for it.
Levesque stated that he did maintenance on both the big and small wood processors. He was the only one who could fix them. He recalled having to buy a socket large enough to turn one of the nuts. The big one had a John Deere motor. The smaller one had a Caterpillar. Levesque himself bought the fluids for servicing them.
Levesque did not know when the smaller one disappeared. He assumed it was simply out on a job.
The big one went missing while Bancroft was attending his girlfriend Zilney’s father’s funeral. Levesque believed he was on Christmas holidays at the time. He contacted Bancroft to let him know.
Levesque was employed by Bancroft for a period of four years. Over the course of that time, Bancroft had no problem paying him. Levesque believed that Bancroft was purchasing lumber at a cost of $900,000.00 a year from Shaw’s to make into firewood.
Levesque recollected that Bancroft’s business slowed down after the wood processors went missing.
Levesque met Bancroft through Wiggins. Levesque’s girlfriend was a friend of Wiggins.
When discussing how Levesque came to be a witness at Bancroft’s trial, he indicated that he was contacted by Bancroft’s friend, Sonny, roughly 2 weeks prior to testifying.
At the time Levesque was subpoenaed by Detective Constable Holmes, Levesque had already heard from Sonny that very day. Sonny tried to tell Levesque about the types of questions he would be asked.
Apparently, Sonny contacted Levesque via Facebook. Levesque explained that he could not access those messages on the cell phone he had with him in court. Those communications were transmitted to his tablet. The settings for social media, he explained, only allow access to his account from his home.
Levesque agreed that he had been convicted in the past of a number of crimes of dishonesty; however, those offences were committed in 2007. He had as well more recent drug convictions from September 2015 and April 2017.
Levesque confirmed that Bancroft always paid him in cash. Two years went by before Revenue Canada caught up to Levesque for not reporting it as income.
Levesque said he would be surprised to hear that St. Michael had a wood processor. St. Michael, Levesque commented, drank every dime he had.
Nevertheless, Levesque testified he was present during discussions between St. Michael and Bancroft about the acquisition of a wood processor. Levesque believed that Bancroft, St. Michael and he were all present in a truck on Bancroft’s property when the conversation took place.
Levesque thought that the negotiation he was listening to occurred after the arrival of the big wood processor.
Levesque understood that St. Michael was arranging for the sale of a wood processor. The smaller one was still on Bancroft’s property at that time. Levesque assumed that Bancroft owned the smaller one.
Levesque placed the discussions between Bancroft and St. Michael in or about October 2015.
For some years, Levesque worked for a different company called Badger. However, when he returned to work for Bancroft in what he believed was the fall of 2015, both the big and small wood processors were no longer on his property.
Levesque never heard from Bancroft that the smaller one had been stolen. However, Bancroft asked Levesque about surveillance video from a convenience store near his property, which might offer evidence of the theft of the larger one, but the police refused to obtain it.
Levesque believed that the big wood processor was a 2740 Cord King. When shown the Bill of Sale between St. Michael and National Leasing for a Cord King Model 48 with a 24 foot conveyor, Levesque denied that it was one of the wood processors he had worked on. He insisted it was a Model 2740 with no conveyor.
Levesque added that the conveyor of the big wood processor was bigger than the small one altogether.
Levesque denied that he was ever asked to take a wood processor to Maniwaki, Quebec. He did nevertheless recall taking one to Osgoode, Ontario.
Levesque learned of Bancroft’s arrest through Bancroft’s cousin, Barry.
Levesque believed that Wiggins was terminated as Bancroft’s employee when Levesque’s home was raided by police. Levesque denied any contact with Wiggins thereafter.
Levesque noted that Wiggins was not one of the people Bancroft commonly associated with. Levesque observed that St. Michael was around Bancroft far more often.
January 26, 2017 (Counts 5 – 7)
When Gregory Rourke (“Rourke”) testified on June 13, 2019, he had been an employee of Economical for 35 years. When Bancroft’s claim as an insured of Economical was submitted on January 26, 2017, Rourke was a claims investigator.
Rourke was unsure of the policy inception date; however, he was able to confirm that from August 19, 2015 to March 7, 2016, Bancroft was covered by a policy of insurance issued by Economical in respect of two pieces of machinery. That policy of insurance was made Exhibit 6 at trial.
The first was a 2014 Model 60 Cord King wood processor. It was insured to a limit of $142,000.00.
The second was a 2014 Cord King CS 40 Model 48 wood processor with accessories. It was insured to a limit of $58,000.00
The deductible for both wood processors was set at $2,500.00.
Bancroft’s claim was initially reported to Economical on January 5, 2016. The claim was assigned to Rourke on January 26, 2016.
Bancroft completed a Proof of Loss on January 26, 2017. By virtue of this document, Bancroft asserted that the theft of the wood processors occurred on December 30, 2015.
Bancroft sought the replacement cost under his policy of insurance for both pieces of machinery. For the Cord King Model 60, he claimed $166,643.00. For the Cord King Model 48 he claimed $105,750.00.
In the preprinted portion of the Proof of Loss, Bancroft acknowledged and solemnly declared:
that the foregoing claim and statements are to the best of [his] knowledge and belief true in every particular and that [he made] the solemn declaration conscientiously believing it to be true in knowing that it is of the same force and effect as if made under oath.
The Proof of Loss was declared before the Commissioner of Oaths, one Naomi Dawn Lavergne, on January 26, 2017.
The loss payee for the 2014 Cord King model 60 was CMI.
The loss payee for the 2014 Cord King Model 48 was National Leasing.
Rourke investigated the disappearance of the wood processors. In doing so, he took a statement from Bancroft on February 9, 2016. Bancroft denied ever seeing or knowing the whereabouts of the machinery after December 28, 2015.
Bancroft cast suspicion on his sisters. Economical found nothing to implicate them.
Additionally, Rourke knocked on doors and spoke to neighbours. By all accounts, the last time a wood processor was seen on Bancroft’s property at 111 Burnstown Rd. was December 28, 2015.
Ultimately, the larger wood processor, the Model 60, was found. It was, at the time Rourke was making his inquiries, located at Beaudoin Towing in Québec.
The smaller wood processor, the Model 48, was never found.
Economical did not pay any of the amounts claimed by Bancroft under the policy of insurance he held with his insurer.
Rourke explained as well that Economical is a Defendant in litigation launched by Bancroft for non-payment for the loss of the wood processors under the policy.
Under cross-examination, Bancroft was able to establish that the Proof of Loss was submitted to Economical under cover of a letter from his solicitors, Barker Willson, on February 13, 2017.
A previous Proof of Loss submitted by Bancroft had been rejected by Economical as insufficient and incomplete. It had not been notarized.
Issues:
- The evidence adduced at Bancroft’s trial raises the following issues:
a) if I believe what Bancroft told police in his sworn statement of February 1, 2016, I must acquit;
b) if I do not believe what Bancroft told police, but it raises a reasonable doubt in respect of any of the charges he is facing, I must acquit him on those charges; and
c) if I do not have a reasonable doubt about any of Bancroft’s charges as a result of what he told police, on the basis of the evidence which I do accept, I must be convinced beyond a reasonable doubt in respect of any one or more of the charges he is facing before I can convict him of anything.
- Even though Bancroft did not testify at his trial, the statement he gave to police was evidence led by the Crown. If that evidence is believed or raises a reasonable doubt, it would negate some of the elements of the offences with which he has been charged, and which remain outstanding for determination. So too would some of the evidence given by defence witnesses called by Bancroft, if it is believed or if it raises a reasonable doubt.
The Law:
Assessing Credibility and Conflicting Evidence
- Recently, in R. v. Smith, 2020 ONCA 782, Harvison Young J.A. for a unanimous three member panel of the Court of Appeal for Ontario reviewed the task of the trier of fact when applying the principles in W.D. At paras 11 through 13 inclusive, she wrote:
11The purpose of the W.(D.) test is to assist the trier of fact in “evaluating conflicting testimonial accounts” to determine whether the Crown has proven its case beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. The W.(D.) test is not a “magic incantation”: R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533. It is the substance of the test that must be respected: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23. The test is a reminder that the “burden never shifts from the Crown to prove every element of the offence”: J.H.S., at para. 9.
12The W.(D.) test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Kirlew, 2017 ONCA 171, at para. 17.
13For reference, the three steps of W.(D.), at p. 758, are as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
Vetrovec Warning
In R. v. Nelson, 2020 BCCA 204, Griffin J.A. revisited the rationale for giving a Vetrovec warning to jurors where the Crown called evidence from unsavoury witnesses, such as in this case, St. Michael and Wiggins.
She commented at paras. 22 to 26:
22I turn to a discussion of the principles arising from Vetrovec and their application to the judge’s treatment of the evidence of Ms. Gonzales and Mr. Vieira.
23The case of Vetrovec involved several accused charged with conspiracy to traffic in heroin. The issue on appeal in that case concerned a long‑standing rule of evidence that required a trial judge to instruct the jury that it was dangerous to convict on the evidence of an accomplice unless this testimony was corroborated.
24On appeal in Vetrovec, the Supreme Court of Canada recognized that the traditional approach to this area of evidence was unnecessarily complex. The Court rejected the rule that all accomplice evidence was untrustworthy and needed corroboration, in favour of a “common sense” approach to the credibility of a witness generally. Several propositions arise from the decision:
a) there is no fixed rule that all testimony of accomplices is untrustworthy;
b) rather, judges should direct their mind to the facts of a case and whether there are any factors that might impair the trustworthiness of a witness, and if there are, then give a “clear and sharp warning” to the jury about the risk of accepting the evidence of that witness without more;
c) if a witness is an accomplice but the judge believes the witness to be trustworthy, no caution to the jury is necessary;
d) credibility of a witness goes to the evidence of the witness as a whole, not individual elements of it; and
e) what may restore the trust in a witness who has reason to lie, such as an accomplice, can be anything confirming part of the evidence of that witness. It is not necessary that confirmatory evidence be evidence that implicates the accused. It is enough that the confirmatory evidence confirm part of the story of the witness, so as to strengthen the trier of fact’s belief that the witness is telling the truth.
25The latter point was addressed again in R. v. Kehler, 2004 SCC 11. The Court was dealing with an accomplice to armed robbery, who identified the appellant as committing the robbery with him. The accomplice was the type of witness of concern in Vetrovec, whose evidence might be tainted by the hope of receiving a personal advantage such as a more lenient sentence. There was confirmatory evidence of the story of the accomplice witness, but not in respect of anything that implicated the appellant. This confirmatory evidence was enough to satisfy the trial judge of the truth of the accomplice’s evidence, and to convict the appellant. On appeal, the Court found no error in the approach of the trial judge. Independent evidence, to be confirmatory of the evidence of a Vetrovec witness, does not have to implicate the accused.
26The type of witness whose evidence may require a Vetrovec caution has become generally known as an “unsavoury witness”. This language encompasses those circumstances where the witness is seen to have such a dishonest moral character, by reason of the nature of the person’s past convictions, that the witness cannot be trusted. However, in many circumstances the court’s concern is more that the evidence of the witness might be “tainted” by a reason to lie, and a more accurate description would be a “tainted witness”. The point is to recognize when it would be dangerous to convict an accused on the evidence of that witness alone. This category was described in Khela as follows:
3It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”. For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so.
4I hasten to add that a specific instruction is sometimes required in this regard not because jurors are thought to be unintelligent, but rather because they might otherwise be uninformed. It is meant to bring home to lay jurors the accumulated wisdom of the law’s experience with unsavoury witnesses. Judges are alert to the concern that unsavoury witnesses are prone to favour personal advantage over public duty. And we know from recent experience that unsavoury witnesses, especially but not only “jailhouse informants”, can be convincing liars and can effectively conceal their true motives for testifying as they have: see R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 76.
[Italicized emphasis in original; underlined emphasis added.]
- It matters not that Bancroft’s trial was conducted by a judge alone without a jury. As Bancroft’s trier of fact and law, I must pay close attention to the evidence of St. Michael and Wiggins and treat it with the caution it warrants.
Conspiracy
- Section 465(1) of the Code reads:
Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
(c) every one who conspires with anyone to commit an indictable offence . . . is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable.
- In R. v. Ford, 2000 CanLII 5701 (ONCA), MacPherson J.A. defined at para. 25 “conspiracy” as follows:
“ . . . conspiracy involves an agreement between two persons to do something; counselling involves one person urging another to do something. Agreement is the anchor of conspiracy. Agreement is unconnected to counselling.”
- In R. v. Alexander, 2005 CanLII 32566 (ON CA), Doherty J.A., at para. 48 articulated the actus reus of a conspiracy with these words:
[48] The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime: see I.H. Dennis, “The Rationale of Criminal Conspiracy” (1977), 93 Law Q. Rev. 39; P. Gillies, The Law of Criminal Conspiracy (Sydney, Australia: Law Book Co. Ltd., 1981) at 327.
- Later, in R. v. Root, 2008 ONCA 869, Watt J.A. distilled the elements of the offence of conspiracy as follows:
66For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt:
i. an intention to agree;
ii. completion of the agreement; and
iii. a common (unlawful) design
United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 86 at p. 511. Further, there must exist an intention to put the common (unlawful) design into effect. Dynar, at para. 86; O’Brien at p. 668. (see also R. v. McFarlane, 2020 ONCA 548 at para. 28)
Forgery
- Section 366(1) of the Code states:
Every one commits forgery who makes a false document, knowing it to be false, with intent
(a) that it should in any way be used or acted upon as genuine, to the prejudice of anyone whether within Canada or not . . .
- Section 321 of the Code defines “false document” as . . . a document:
(b) that is made by or on behalf of the person who purports to make it but it is false in some material particular . . .
- Section 368(1) of the Code further reads:
Everyone commits an offence who, knowing or believing that a document is forged,
(a) uses, deals with or acts on it as if it were genuine . . .
- In R. v. Gaysek, 1971 CanLII 11 (SCC), [1971] SCR 888 at p. 896, Ritchie J. speaking for a three member majority of a five member panel of the Supreme Court of Canada held:
I am of the opinion that a document which is false in reference to the very purpose for which the document was created is certainly one which is false in a material particular.
- In R. v. Saucier, 2017 ONSC 7099, Lacelle J. cited Gaysek with approval and set out at para. 38 the elements of the offence of forgery as follows:
38The elements the Crown must prove beyond a reasonable doubt for this offence are (see Watt’s Manual of Criminal Jury Instructions at pp. 988-991):
i. That the accused made a false document;
ii. That the accused knew the document was false when he made it;
iii. That the accused intended that the document be considered genuine; and
iv. That the accused intended that someone would be prejudiced by treating the document as genuine.
Fraud
- Section 380(1) of the Code provides:
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds . . . any person, whether ascertained or not, of any property, money or valuable security or any service:
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where . . . the value of the subject-matter of the offence exceeds five thousand dollars.
- In London & Globe Finance Corp. Ltd. (Re) [1903] 1Ch. 728 at p. 732, Buckley authored the classic definition of fraud when he wrote:
To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
The classic definition has survived well into the modern era.
In R v. Mamoon, 2016 ONSC 3070, Edwards J. set out the elements of the offence of fraud as follows:
14The leading case on fraud is R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5. There the court explained the elements of fraud:
Since the mens rea of an offense is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of the offense of fraud. Speaking of the actus reus of this offense Dickson J. (as he then was) sent out the following principles in Olan [[1978] @ S.C.R. 1175]]
(i) the offense 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.
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 offense. 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 offense; the imperilling of an economic interest is sufficient even though no actual losses been suffered. By adopting an expansive interpretation of the offense, the court established fraud as an offense of general scope capable of encompassing a wide range of dishonest commercial dealings.
Subsequent cases followed Olan’s lead, fleshing out the elements of the offense 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. R. v. Doren (19820, 1982 CanLII 2197 (ON CA), 36 O.R. (2D) 114 (C.A.); see also R. v. Kirkwood (19 83), 1983 CanLII 1953 (ON CA), 42 O.R. (2D) 65(C.A.). 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, nondisclosure of important facts, exploiting the weaknesses of another, unauthorized diversion of funds, unauthorized irrigation of funds of or property… As noted above, where it is all alleged that the actus reus of a particular fraud is” other fraudulent mean, the existence of such means will be determined by what reasonable people consider to be dishonest dealing.
15Further the mens rea for fraud has also been determined by Theroux:
Having ventured these general comments on mens rea, I returned to the offense 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 that the deprivation would not take place, or may have felt that 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 offense must be determined by reference to the external acts which constitute the actors of the offense (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 act(deceit, falsehood or other dishonest act knowing or desiring the consequences proscribed by the offense (deprivation, including the risk of deprivation. A personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis then is the accused awareness that the particular acts undertaking constitute a criminal offense.)
- I will, of course, apply the above principles in determining whether, on the whole of the admissible evidence led at Bancroft’s trial, the Crown has discharged the heavy burden of demonstrating Bancroft’s guilt beyond a reasonable doubt.
Analysis:
Do I believe Bancroft’s February 1, 2016 statement to police?
I find the statement provided by Bancroft to police lacks any semblance of credibility. I shall explain why.
Firstly, it strains all logic and common sense to accept that Bancroft drove a 90 minute round trip by vehicle to Ottawa from White Lake simply to tell Wiggins he could not hire him and the reasons therefor. Bancroft went to the trouble of meeting Wiggins where he did to collect cash from the sale of the wood processor they had just unloaded.
Secondly, Blakely testified that he worked for Bancroft since the early 2000’s. Blakely only knew of a single wood processor. Knowledge of Bancroft’s possession of a single wood processor was echoed by Kasaboski. Both Blakely and Kasaboski were called by Bancroft as part of his defence. Neither helped.
Thirdly, it was Zilney’s evidence that Bancroft funded an entire excursion to Niagara Falls for him, her, her son and her son’s partner. This trip was taken before the disappearance of the big wood processor. She did not know where the money came from to allow Bancroft to pay for everything. I can safely infer that the money came from the fraud perpetrated against National Leasing for the non-existent wood processor.
Fourthly, Hansen’s evidence, the owner of CMI, directly contradicts Bancroft’s February 1, 2016 statement to police. I find Hansen’s evidence credible and reliable that Bancroft had not been able to make his instalment payments for the big wood processor for 2 to 3 months prior to its disappearance. I conclude therefore that Bancroft’s statement to police that he was doing brisk business prior to the disappearance of the wood processor was false.
Fifthly, I reject Bancroft’s evidence that his call to CMI to inquire about the possibility of there being GPS devices in the wood processors was a badge of credibility pinned to the statement he gave to police on February 1, 2016. His desire to know whether they did or not is equally consistent with the fear that the attempt to defraud his insurer would be discovered, and his ruse would unravel quickly, if the machinery was located in Maniwaki.
Sixthly and most importantly, I reject fundamentally Bancroft’s claim that his wood processor or wood processors was or were stolen because I accept fully Edmonds’ unchallenged evidence that Bancroft wanted the machinery moved right away. For Edmonds, Bancroft’s request was not out of the ordinary. Edmonds assumed that Bancroft had a job to do in Québec making firewood with his wood processor. Edmonds had moved a wood processor on a prior occasion for another project Bancroft had out of town.
Edmonds was a completely independent witness. He could not be regarded in any way as an accomplice to a crime. Indeed, Bancroft confirmed with him that he has never been asked by Bancroft to do anything illegal. It was a job like any other for Edmonds. Bancroft contracted him to deliver the wood processor to Maniwaki. Edmonds performed his end of the bargain, and Bancroft paid him for it.
Even if I do not believe Bancroft’s February 1, 2016 statement to police, am I left with the reasonable doubt by it?
- I am not. Having rejected Bancroft’s February 1, 2016 statement to police for the reasons set out above, I cannot be left in a state of reasonable doubt about any of his charges before the Court based on his evidence, or any other admissible evidence.
On the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt of Bancroft’s guilt for any or all of the charges before the Court?
I accept St. Michael’s evidence regarding the fraud perpetrated on National Leasing. His evidence is corroborated by Nemchin’s and the business records kept by National Leasing.
I believe St. Michael’s evidence that Bancroft masterminded the fraud. During St. Michael’s examination-in-chief, he identified the serial number hand printed on one of the documents provided to National Leasing as Bancroft’s. While cross-examining St. Michael, Bancroft acknowledged the printing of the serial number to be his own. The general manager of CMI, Kravacek, gave evidence that the serial number was nonsensical. I find Bancroft fabricated the number in order to defraud National Leasing by way of the bogus sale of the non-existent wood processor by St. Michael to himself.
I accept St. Michael’s evidence that Bancroft’s email address was “paylessfirewood@hotmail.com”. It is corroborated by the emails passing between Nemchin of National Leasing and someone who identifies himself as “Kyle” using the “paylessfirewood@hotmail.com” email address. I find Bancroft is exactly that “Kyle”, and he instructed St. Michael to e-transfer a total of $17,550.00 to him using this method of payment. In addition, I accept St. Michael’s evidence that the bank draft for $25,000.00 used to buy lumber from Shaw’s was delivered to Bancroft’s property by St. Michael. Given St. Michael’s personal circumstances, he would have no use for the lumber. Bancroft, on the other hand, certainly would.
I come to these findings even though I disbelieve St. Michael’s evidence that he did not want to keep any money from the fraud for himself. To the contrary, St. Michael directly and indirectly benefited from the fraud committed upon National Leasing. St. Michael took cash withdrawals from his bank account. He bought things for himself shortly after National Leasing direct deposited the subject funds into his account. He continued to work for Bancroft and take cash from him for months thereafter.
I cannot be satisfied that any cash St. Michael says he withdrew and delivered over to Bancroft only accrued to Bancroft’s benefit. I can very safely entertain a reasonable doubt that St. Michael pocketed some of the money from National Leasing for himself.
Specifically, the $5,000.00 and $6,000.00 cash withdrawals made by St. Michael on August 24 and 31, 2015 respectively could well have been his cut for the fraud Bancroft and he managed to pull off to National Leasing’s detriment.
I conclude however that the vast majority of the funds defrauded from National Leasing, some $42,550.00 in fact, accrued to Bancroft’s benefit.
I believe St. Michael’s evidence, even though I am certain he was looking from the outset upon arrest to negotiate an advantage for himself through an offer to cooperate with the authorities. I have fully taken this reality into account in assessing St. Michael’s credibility and motives for testifying as he did against Bancroft.
I find that St. Michael, Wiggins and Edmonds transported the big wood processor to Maniwaki, Québec to sell it to Butch. St. Michael, Wiggins and Edmonds all testified about a nocturnal trip and drop off of the machinery after a stop in Maniwaki at a gas station.
I have no doubt whatsoever that Bancroft sanctioned the transport of the wood processor to Butch. I believe Bancroft received the lion’s share of the proceeds of the sale from Wiggins out of an envelope when both were on or near Parkdale Avenue in Ottawa.
I am not troubled at all by minor inconsistencies or conflicts in the evidence of Wiggins or St. Michael. Their testimony considered as a whole held a common thread. I believe Wiggins’ evidence that he found a buyer for the big wood processor for Bancroft. St. Michael and Wiggins delivered the processor to the buyer with Bancroft’s assent.
Bancroft told Wiggins and St. Michael of his intention to make a fraudulent insurance claim for the wood processor he had disposed of in Québec, and the one which did not exist.
St. Michael, Wiggins and Edmonds agreed that:
a) the trailering of the wood processor and conveyor was done at night,
b) Bancroft was not only aware of, but requested that the transport take place,
c) there was a stop at a gas station near their final destination,
d) the machinery was left in a large yard only a short distance from Maniwaki, and
e) money was paid by Bancroft to all three for the roles they played in delivering the machinery to Maniwaki.
Another independent witness, Atwater, was struck by the odd time of night during which he witnessed the transport of such large pieces of machinery with minimal lighting. St. Michael’s evidence about the desire to avoid surveillance cameras and highway weigh scales is confirmed by Atwater’s observations. Furthermore, Atwater convincingly recognized one of the vehicles used to pull the machinery as Bancroft’s truck. St. Michael conceded he could have used that vehicle to pull the conveyor, not his own. Indeed, St. Michael had no explanation for how he showed up at Bancroft’s residence the following day with Bancroft’s vehicle unless had used it the night before.
In approaching Butch’s evidence, I do so with the same level of caution as I exercised with St. Michael’s and Wiggins’. I am prepared to accept that Butch paid $10,000.00 in cash for the machinery. He placed the cash in an envelope and handed it over to Wiggins. Of course, the machinery was ultimately found by police some years later exactly where St. Michael and Wiggins say they brought it.
Butch’s testimony provides the link in the chain to explain where the $10,000.00 in cash delivered to Bancroft in Ottawa came from.
I also accept that Wiggins told Butch that his friend, the vendor of the wood processor, Bancroft, was insured. I reject Butch’s theory that the vendor may have been the recipient of an insurance payout for having suffered injuries in a motor vehicle accident.
At a minimum, Butch was wilfully blind as to why he was able to acquire for Charbonneau a wood processor so cheaply. Butch was a shrewd businessman. He would have done his homework beforehand. He would have, in all likelihood, researched the fair market value of the used wood processor he was buying with cash. I am certain Butch knew this was a deal ‘too good to be true’. It had all the earmarks of shadiness.
Bancroft puts himself in Ottawa at or about the time Wiggins testified he handed most of the cash over to him. The Bell cellular telephone records confirm Wiggins’ evidence regarding where and when he gave the money to Bancroft.
I firmly believe the evidence of the claims investigator for Economical, Rourke, that the policy payout limits on both the big and small wood processors were $142,000.00 and $58,000.00 respectively. Bancroft then claimed the replacement cost for both at $166,64.00 and $105,750.00 respectively. He signed a Proof of Loss, and declared its contents to be true, when he knew the small wood processor never existed, and the big one was never stolen.
I conclude quite confidently that this act on the part of Bancroft constituted an attempt to defraud Economical.
It is irrelevant that the Proof of Loss was sent to Economical under cover of a letter from Bancroft’s solicitors, Barker, Willson. He needed the document notarized. He supplied information to his solicitors to allow them to assist him in filling out the Proof of Loss in order to seek compensation from Economical. They acted on his instruction. Bancroft was the sole source for the information, and he knew that the information he supplied was false in a most material way.
I reject Zilney’s testimony that she saw on one occasion another wood processor which Bancroft bought from St. Michael. Zilney played no role in the acquisition of machinery which Bancroft utilized in running his firewood and planing operation. Nor did she participate in the day-to-day operation of Bancroft’s business. Her knowledge of the machinery Bancroft possessed is highly suspect. That “other wood processor” would have been on Bancroft’s property, if Bancroft is to be believed, since August or September 2015. Zilney lived there until December 12, 2015. Yet she only saw it once.
Although Zilney gave evidence that she saw the “other wood processor”, she provides no context or surrounding circumstances for why she would have only seen it a single time. I do not specifically find that Zilney was attempting to be dishonest. I simply can place no reliance in her evidence on the issue of the existence of a second wood processor, which she says Bancroft had, given her lack of knowledge of the daily operation of his business and its assets.
I dismiss outright the theory proffered by Bancroft that Detective Constable Snider or Sgt. Sarault exhibited bias toward or animus for him.
Sgt. Sarault’s discovery of Wiggins in Levesque’s residence while Wiggins was in possession of a fake driver’s licence was hardly a bargaining chip for police to use in order to have Wiggins turn against Bancroft.
Detective Constable Snider, I find, did not offer any improper inducement to Bancroft to participate in any investigation outside the one involving the wood processors. Nor was Detective Constable Snider’s suggestion without foundation that an autopsy be performed on Bancroft’s mother when she passed away. This police action was taken based on information provided by Bancroft’s sisters regarding what they believed was a recent change made to their mother’s will, and Bancroft’s influence on his mother in having the change effected.
I reject Levesque’s evidence almost in its entirety. I find that it was likely tainted by Sonny’s involvement.
Levesque certainly appeared reluctant to produce the social media discussions which took place between Sonny and him.
Furthermore, although dated, Levesque has a criminal record for crimes of dishonesty. He struck me as the type of witness who would say whatever anyone wished, if he or she made it worth his while.
Conclusion:
- Based on the evidence adduced at Bancroft’s trial, I find him guilty beyond a reasonable doubt of:
Ct. 1 – conspiring with Wiggins to defraud Bancroft’s insurer for the feigned theft of wood processor (The agreement was made by both Bancroft and Wiggins to seek an insurance payout. I cannot conclude that St. Michael played a role in conspiring to defraud Economical as a result of the sale of the big wood processor.),
Ct. 3 – committing public mischief by causing Constable Cassidy to embark upon an investigation into the theft of two wood processors, when Bancroft knew such theft had not occurred,
Ct. 4 – making a false statement under oath when he was interviewed by Detective Constable Snider, by claiming wood processors were stolen from him,
Ct. 5 – attempting to defraud Economical by filing a false claim,
Ct. 6 – committing forgery by falsely claiming compensation from Economical for a wood processor he knew did not exist,
Ct. 7 – using a forged document, a Proof of Loss, as if it were genuine,
Ct. 8 – defrauding National Leasing by forging a Bill of Sale and obtaining financing for the purchase of a non-existent wood processor,
Ct. 9 – conspiring with St. Michael to commit a fraud upon National Leasing,
Ct. 10 – using a false document, a Leasing Agreement, and thereby committing a forgery,
Ct. 11 – using a forged document, an Application of a Leasing Agreement, to defraud National Leasing, and
Ct. 12 – possessing Canadian currency knowing it was obtained through the commission of an offence punishable by indictment by accepting fraudulently obtained funds from National Leasing.
- I find Bancroft not guilty of:
Ct. 2 – possessing Canadian currency knowing it was obtained through the commission of an offence punishable by indictment by accepting the proceeds of the sale of the wood processor.
Bancroft was within his right to sell the wood processor to Butch under its true market value utilizing Wiggins as his agent. Having done so, he remained contractually obliged to repay CMI for his indebtedness to that company. What he could not do, of course, was falsely claim, as he did, to CMI, to National Leasing, to police and to his insurer that the wood processor(s) had been stolen.
I will hear submissions from the Crown and Bancroft as to which of the offences for which I have found him guilty ought to be conditionally stayed through application of the Kienapple rule.
DATED: January 8, 2021
March, M.G., J.