Court File and Parties

Court: ONTARIO COURT OF JUSTICE Court File No.: Windsor 22-39 Date: 2023-09-14

Re: HIS MAJESTY THE KING, Crown And: CATALINA MOCZKO, Defendant

Before: Justice S. G. Pratt

Heard on: 23, 24, 25 January, 12, 29 May 2023 Reasons for Judgment released on: 14 September 2023

Counsel: Logan Annisette, for the Crown Jessica Grbevski, for the Defendant

Pratt J.:

1Ralph Mayville was born on 27 August 1921. He passed away on 9 August 2019 at the age of 97. He was a proud veteran of World War II. He lived independently up to the time of his death but had a caregiver, Catalina Moczko. This case deals with the extent of his relationship with Ms. Moczko. Was she simply his caregiver, or has the Crown proved beyond a reasonable doubt that she exploited the trust he had in her and stole from him?

2I begin my analysis by noting the parameters and limitations of the criminal process. The question I must answer in this trial is whether the Crown has proved Ms. Moczko’s guilt beyond a reasonable doubt. I am not here to give my opinion on the propriety of the arrangements between the parties. I am not here to take sides in what is clearly a very emotional dispute between the family and Ms. Moczko. A criminal trial sees a defendant begin with the presumption of innocence. The burden rests on the Crown to prove her guilt. The standard of proof is beyond a reasonable doubt. It is not sufficient if I find that Ms. Moczko (hereinafter the Defendant) is probably guilty or likely guilty. I must be sure of her guilt before I can convict.

3It is that high standard, difficult to meet at the best of times, that leads me to the conclusion that the Crown has proved the Defendant’s guilt in one limited respect on count 1 only. The Defendant will be found not guilty of count 2.

Issues

4I see two main issues in this case:

(1) Has the Crown proved all elements of the offence of theft? (2) Has the Crown proved the Defendant induced a particular action by making a false document when the 2018 Ford Explorer was purchased?

Issue 1: Has the Crown proved all elements of the offence of theft?

5The Crown filed voluminous materials setting out the banking history of Mr. Mayville (hereinafter the Complainant). The materials show a succession of withdrawals from the Complainant’s CIBC account made at ATMs. The Crown also filed the Defendant’s banking records, which show corresponding deposits to her account. These deposits were typically, though not always, followed by bill payments made from the Defendant’s account.

6For example, on 29 May 2019, $1,000 was withdrawn from the Complainant’s account. That same day, $600 was deposited into the Defendant’s account. Immediately after the deposit, the Defendant made a $400 credit card payment. The next day, $1,800 was withdrawn from the Complainant’s account and $1,100 was deposited into the Defendant’s account. Within a minute of that deposit, the Defendant made a car payment of $1,042.51. On 30 July 2019, $2,000 was withdrawn from the Complainant’s account and $1,500 was deposited into the Defendant’s account. Within a minute of that deposit, the Defendant made a car payment of $1,042.51 and a credit card payment of $400. I note that on all these occasions, the Defendant’s account was in overdraft with a significant negative balance. This pattern of withdrawals from the Complainant and deposits/bill payments by the Defendant continued with regularity until the Complainant’s death. The Crown has laid out the complete history of this conduct in the materials provided.

7The Complainant’s records not only note the amounts withdrawn from his account but also the location of the ATM where the withdrawals were made. Several of the withdrawals coincide with surveillance photos taken at the relevant CIBC ATMs. These photos clearly show the Defendant conducting some sort of business at the banking machines at the locations where withdrawals were made.

8Among the many withdrawals is a $1,000 ATM withdrawal from the Complainant’s account on 9 August 2021. As I noted above, that is the day the Complainant died.

9The net result of the evidence is that many withdrawals were made from the Complainant’s account. Over and over, those withdrawals were matched with deposits into the Defendant’s account and immediate bill payments. On several occasions, the Defendant was seen on bank surveillance at the ATMs where withdrawals were made on the day they were made.

10Evidence from Crown witnesses is that no other persons had a debit card associated to the Complainant’s account.

11In my view, the only reasonable inference to be drawn is that the Defendant made the withdrawals pointed to by the Crown and then deposited at least some of the money into her own account. She would then pay bills she otherwise may not have been able to pay given the overdraft status of her account.

12Counsel for the Defendant suggested it could not be said conclusively that it was the Defendant who made the $1,000 withdrawal on 9 August 2019. I respectfully disagree. That withdrawal was consistent with the myriad other withdrawals made by the Defendant. The idea that some other actor would have emerged, secured a debit card, and made that withdrawal is simply not a reasonable inference in these circumstances.

13I would also note that Art Laslett mentioned the $1,000 withdrawal to the Defendant in his messages on 9 August. Specifically, he said:

Also I see that there was $1000.00 taken from his bank (sic) account after his death today. This constitutes theft. This withdrawal will be investigated so if you have taken this money it is to be returned immediately.

14In his message Mr. Laslett effectively accuses the Defendant of theft. How does the Defendant respond to this accusation? She doesn’t. She never denies taking the money or offers any kind of explanation. She is silent. That is an odd reaction to being accused of stealing from a dead person. A suspect has an unassailable right to remain silent when being questioned by police. This is very different. I would liken it to the case of [MacKenzie v. Commer, [1973] N.S.J. No. 129 (N.S.S.C.A.D.)], where Chief Justice MacKeigan (as he then was) said the following at paragraph 8:

"This conversation was not questioned or denied by Commer, who gave no evidence and, indeed, was not present at the trial. His statements, as reported by MacKenzie, are neither specific admissions nor denials of the allegation that the car was a stolen car. The best that can be said of the statements is that Commer was silent, that he was silent under circumstances which screamed loudly for him to say something. One would expect a normal, honest vendor, when told that he had sold stolen goods, to deny the allegation vehemently and, having regard to his warranty of title, to volunteer eagerly to try to help the purchaser recover the car and to clear his own name. This he did not do but merely told the purchaser "to go pile sand". Under these circumstances, Commer must be taken to have impliedly admitted the truth of the allegations. Phipson on Evidence, 10th ed., s. 766, states:

"The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them.""

15This principle, that silence in the face of a statement that would expect a response allows an inference of assent to that statement, was confirmed by Justice Martin in R. v. Baron, [1976] O.J. No. 2304 (C.A.). Subsequently, the Court of Appeal has directed a cautious approach when considering what is known as an adoptive admission (see: R. v. Robinson, 2014 ONCA 63).

16I do not take the Defendant’s silence in response to Mr. Laslett’s assertion, standing alone, as an admission that she made the withdrawal. It is, however, a factor I can consider alongside the totality of the evidence on the point. By that date, she had made dozens of withdrawals from the Complainant’s account. This withdrawal fit that pattern. It was made at an ATM location she’d frequented many times for other withdrawals. That she did not respond when confronted with an accusation of theft, when one would reasonably expect some kind of response, is at least some evidence supporting the inference that she did make that withdrawal.

17On all of the evidence before me, I find as a fact that the Defendant did make the withdrawals alleged by the Crown, including the 9 August 2019 withdrawal.

18That, of course, does not end the issue. To commit theft, according to s. 322 of the Criminal Code, a person must take something “fraudulently and without colour of right”. It is an essential element of the offence that the rightful owner of the property in question has not consented to the alleged thief taking it. That lack of consent must be proved beyond a reasonable doubt by the Crown to secure a conviction.

19I have no direct evidence on this point from the Complainant. All I have from him directly is a video statement taken by police that is not admissible for its truth. As a result, I must consider the evidence in its totality to determine if I can answer the question of consent definitively.

20I find I cannot.

21There is no question that the Complainant suffered from dementia. This is confirmed in the letters from Dr. Nasser Adib Zaki, dated 26 June 2018 and Dr. Jennifer Out, dated 2 August 2018. Both letters say his dementia was progressing and that he required care. As well, the video statement could be said to have shown some memory issues on the Complainant’s part.

22None of this, however, leads me to the conclusion that the Complainant was incapable of consenting to a financial arrangement with the Defendant. On the contrary, in a handwritten letter dated 11 April 2014, the Complainant stated that he was paying the Defendant $5,000 for services she had provided. Sure enough, on the following day there was a deposit of $5,000 into the Defendant’s bank account. Were the subsequent withdrawals from his account done as part of a continuing arrangement between them? They may have been. I cannot say beyond a reasonable doubt that they weren’t.

23I can say that I am very suspicious of the Defendant’s conduct. This was a very elderly man, whose family was not in close contact. The Complainant relied on the Defendant for daily assistance. It would have been all too easy to exploit the situation and either help herself to the Complainant’s bank accounts or cajole and pressure him into an agreement he didn’t want to make. Indeed, that may well be what happened. But I cannot say so beyond a reasonable doubt.

24I draw a distinction on the withdrawal made on 9 August 2019, the day the Complainant died. I have already found as a fact that the Defendant made this withdrawal. Any arrangement that may have been in place (and I’m not saying there was such an arrangement, only that I can’t say there wasn’t) necessarily died with the Complainant. She could not have had posthumous consent to withdraw that money, and she had no right to do so.

25The Defendant will be found guilty of count 1 only as it relates to the 9 August 2019 withdrawal.

Issue 2: Has the Crown proved the Defendant induced a particular action by making a false document when the 2018 Ford Explorer was purchased?

26Count 2 in the Information relates to the purchase of a motor vehicle. The Defendant is charged with falsifying the purchase agreement.

27On 25 October 2018, the Defendant purchased a 2018 Ford Explorer from Rose City Ford in Windsor. The purchase agreement, called a “Retail Instalment Contract”, is Exhibit 4. The agreement reveals several things.

28The purchase price for the Explorer was $51,790.57. The total balance owing was $70,696.91. This represented the purchase price, warranties, taxes and fees, and what is termed a “negative trade-in allowance”. It also reflects a down payment of $1,800.

29With interest, the total amount owing on the agreement was $76,860.72. This was to be paid in 72 monthly instalments of $1,042.51. This is the amount paid by the Defendant to Ford Credit each month thereafter, according to her bank statements.

30According to the agreement, a 2015 Ford was traded in as part of this purchase. This resulted in a credit of $9,500 against the purchase price of the Explorer. Or, at least it would have had the 2015 Ford not had a balance owing of $19,079,63. The result was an additional charge in the purchase agreement for the difference: $9,579.63. In short, more was owed on the 2015 Ford than it was worth and it was a net liability. I can see no economic reason for including this vehicle in the purchase at all as it ended up adding nearly $10,000 to the price.

31That is not the only curious feature of this agreement. The first page names the Defendant as the buyer of the Explorer. It also names the Complainant as the co-buyer. But it has the same address noted for both of them: 2238 Byng Road. At no point did the Complainant ever reside at that address. Rather, it is the Defendant’s address, as confirmed by her banking documents. Further, on page 6, under the heading “Notice to Buyer” there are two signature lines. One is meant for the buyer and the other for the co-buyer. While there has been no evidence offered of handwriting analysis, two things are plainly obvious: the signature next to the Complainant’s name is not his, and the signatures on the buyer’s line and the co-buyer’s line are the same. I have seen the Complainant’s signature on several exhibits and the signature on the agreement is very different. It is also nearly identical to the buyer’s signature.

32I heard from Scott Ohler, the general manager of Rose City Ford. He recalled seeing the Defendant and Complainant at the dealership at the time the agreement was signed. He said the Complainant was something of a local celebrity given his military service. Mr. Ohler recalled stopping to say hello and shaking the Complainant’s hand. Regarding the agreement, he testified that a buyer could sign on a co-buyer’s behalf if verbal authorization was given. If there was no verbal authorization, the dealership would need to see a Power of Attorney before accepting a signature on behalf of another person.

33The agreement was also signed by Cathy Hawkes, who Mr. Ohler said was the business manager at the time. He said that while Ms. Hawkes’ signature was on the form, she may not have been involved in the transaction as she may have pre-signed the agreement. The person present on behalf of the dealership could have been the salesperson, whose name does not appear anywhere on the agreement and was not offered by Mr. Ohler. PC Steven Owen, the investigator in this case, tried to get the name of the salesperson from Mr. Ohler and failed. He said Mr. Ohler would not provide him with a name and was not forthcoming with information.

34Candidly, I did not find Mr. Ohler to be a compelling witness. In my view, he attempted to distance the dealership from any liability for a controversial transaction. The notion that a business manager would pre-sign financing documents before they were reviewed (and potentially amended) by a purchaser makes little sense. Likewise, his claim that a nameless salesperson was really the person present at the time of signing seems more like a minimization of the dealership’s role and responsibility now that the purchase has ended up in a courtroom. I am not, however, called on in this trial to judge the propriety of Rose City Ford’s business practices. I will leave that to the proper agencies.

35Section 366(1) of the Criminal Code states as follows:

366 (1) 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 on as genuine, to the prejudice of any one whether within Canada or not; or

(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

36The term “false document” is defined in s. 321 of the Criminal Code:

false document means a document

(a) the whole or a material part of which purports to be made by or on behalf of a person

(i) who did not make it or authorize it to be made, or

(ii) who did not in fact exist,

(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,

(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made;

37The Crown’s contention that the retail instalment contract is a false document and therefore a forgery under s. 366 of the Criminal Code is related to two aspects of it: the address purported to be the Complainant’s, and the signature next to the Complainant’s name.

38Considering the second aspect first, I find I am left with a reasonable doubt as to the legitimacy of the Defendant signing on behalf of the Complainant. I cannot say beyond a reasonable doubt that the Complainant did not give his verbal authorization to sign on his behalf. As I said earlier in these reasons, while there is some evidence the Complainant was suffering from dementia at that point in time, there is no suggestion that it was so advanced he no longer had the capacity to contract. If the Defendant did have his verbal authorization to sign on his behalf, there is nothing wrong with her doing so.

39The first aspect is more problematic. On the unchallenged evidence before me, the Complainant never lived at 2238 Byng Road. This was the Defendant’s residence, not his. It seems clear that Rose City Ford and the mystery salesperson never asked the Complainant for any identification before selling him a $70,000 vehicle. Had they done, they would have seen he did not live on Byng Road.

40The crucial question on this aspect of the agreement is whether the Complainant’s address is a “material particular”. If it is not, then providing a wrong address does not make the agreement a false document.

41Further, if the agreement is a false document, it must have been created in order to induce a person to do or refrain from doing something.

42I have read the terms and conditions of the agreement, found on pages 4 and 5. I have also read the section called “Assignment” on page 7. Nowhere in these passages does it refer to the address of a buyer. I had thought I might find a clause that required a buyer to notify Ford Credit of any change of address, but I did not. The only time a buyer’s address is mentioned anywhere in the agreement is on page 1, where the address is entered. The agreement makes no other mention of it. That being the case, I cannot find that the buyer’s address is a material particular as contemplated by s. 321.

43If I am wrong in that, I find that the wrong address could not have induced the dealership to enter into the agreement. That is, I cannot say that but for the address provided for the Complainant the dealership would not have completed the transaction. On the contrary, his address seemed of little importance.

44I am unable to say that the retail instalment contract was a false document made by the Defendant such that she is liable under s. 366(1)(b). She will be found not guilty of count 2.

45I reiterate the limitations of the criminal justice system. All defendants, regardless of circumstance, are presumed innocent under our law and remain innocent unless and until the Crown can prove their guilt beyond a reasonable doubt. That is a very high bar.

46I commend the Crown on its very detailed and thorough presentation of the evidence in this case, and I commend Defendant’s counsel for a skillful and effective defence.

47The Defendant will be found guilty of count 1 and not guilty of count 2.