Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220726 DOCKET: C67543

Before: Roberts, Paciocco and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Marcia Motayne Appellant

Counsel: R. Craig Bottomley and Alison Shields, for the appellant Jeremy Streeter, for the respondent

Heard: June 28, 2022

On appeal from the conviction entered by Justice Michael G. Quigley of the Superior Court of Justice, sitting with a jury, on July 19, 2019.

Reasons for Decision

[1] The appellant appeals her conviction following a jury trial on one count of fraud over $5,000 under s. 380(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 for fraudulent manipulations and payouts carried out through her employer’s payroll system.

[2] At the end of submissions, we advised the parties that the appeal was dismissed for reasons to follow. These are those reasons.

Background Facts

[3] The appellant was the Director of Finance of New Visions Toronto (“NVT”), a not-for-profit organization that provides support for children and adults with physical and intellectual disabilities. Over the course of three years, the appellant exclusively oversaw the salary payment process. All changes in the system were made under her name. In August 2015, she was terminated from her position for lack of professionalism and unwillingness to implement financial recommendations. Shortly after her departure, the fraud that is the subject of these proceedings was discovered.

[4] There is no dispute that a sophisticated and large-scale payroll fraud had taken place over a number of years, depriving NVT of over $900,000. Lump sums of money were transferred through the electronic payroll process, over which the appellant had exclusive control, via unused employee numbers. The money was transferred to various bank accounts registered in the appellant’s name and which corresponded with other identifying information, including her address, email address, telephone number, social insurance number, driver’s license number, and the name of her bookkeeping company. All the accounts receiving the payments were linked to each other and to the appellant’s original bank account given to NVT for payroll purposes at the outset of her employment. Particular payments from the accounts benefitted only the appellant and her family, including: the payment of the appellant’s car that she was seen driving to work; the payment of a new roof for the appellant’s house; the payment of her son’s soccer fees; and the payment to the Consulate General of Brazil in relation to the trip that the appellant and her sons took to Brazil.

[5] The only real issue at the appellant’s trial was the identity of the fraudster. The appellant claimed that she was the victim of identity fraud and that someone else had orchestrated the fraud. By its verdict, the jury indicated that it was satisfied beyond a reasonable doubt that the appellant had perpetrated the fraud.

Issues

[6] The appellant does not argue that the jury’s verdict was unreasonable but submits that the trial judge made reversible errors in the jury charge concerning reasonable doubt, the constituent elements of fraud, and motive. She also contends that the trial judge demonstrated a reasonable apprehension of bias. As a result, she argues that a new trial is warranted.

[7] We are not persuaded by these submissions.

Analysis

[8] Regarding the jury charge, we begin with the guiding principle that an appellate court must take a functional approach in reviewing the adequacy of a trial judge’s charge. It is well established that an accused is entitled to a properly instructed jury but not a perfectly instructed one. As the Supreme Court recently reiterated in R. v. Goforth, 2022 SCC 25, at para. 21:

Trial judges are not held to a standard of perfection in crafting jury instructions. Rather, an appellate court must take a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. It is the substance of the charge – and not adherence to or departure from a prescriptive formula – that is determinative. [Citations omitted.]

[9] The Supreme Court also instructs that trial judges must be given some flexibility in crafting the language of jury instructions and are not required to use a particular formula. The question is whether an appellate court can be satisfied that the jury would have adequately understood the issues involved, the law relating to the charge the accused was facing, and the evidence to be considered in resolving the issues: see Goforth, at paras. 21-22, 64.

[10] Taking the required functional approach to the trial judge’s charge in this case, we are satisfied that the jury was adequately equipped with the instructions they needed to resolve the issues.

[11] With respect to the instructions on reasonable doubt, we disagree that the trial judge failed to instruct the jury in accordance with R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30-31, that a reasonable doubt may arise from the absence of evidence or gaps in the evidence. The trial judge did in fact include the requisite instructions in several places in the charge, including those requested by defence counsel. He correctly instructed the jury that to convict the appellant, they needed to conclude that guilt was “the only reasonable or rational inference to be drawn” from the circumstantial evidence they accepted and that the jury should consider both the evidence and, expressly, “the absence of evidence”, to determine whether any reasonable inferences other than guilt arose (emphasis added).

[12] The appellant takes issue with the portion of the trial judge’s instruction on the actus reus of fraud that Mr. Andy Rotsma, the executive director of NVT, “felt betrayed and that his trust in [the appellant] had been entirely undermined by her conduct, even though the actual fraud was not known at that time”. We agree that by itself, this sentence was potentially confusing, as Mr. Rotsma’s subjective feelings were irrelevant to the jury’s determination of whether the appellant had committed the alleged fraud. However, as the functional approach requires, this statement must be viewed in the context of the entire paragraph and the rest of the charge. While the trial judge’s instruction on the “other fraudulent means” element of fraud was not perfect, we are not persuaded that it would have misled or confused the jury in the context of this case where there was no question that the fraud had been committed and that NVT had been deprived of over $900,000 by the means of the payroll fraud.

[13] We reject that the trial judge’s instructions on motive were erroneous or unfair. The trial judge instructed the jury that the absence of a proven motive tends to support the presumption of innocence, saying, “Absence of proven motive, however, is a circumstance … which you may find tends to support the presumption of innocence.” This instruction nearly exactly aligned with defence counsel’s closing submissions.

[14] The trial judge then charged the jury to consider any evidence of motive for the fraud and stated, “if you find that [the appellant] took monies from [NVT], you may infer from the evidence that she did so because she wanted more money than she otherwise had.” There was no error in his reference to the common-sense proposition that most frauds are motivated by the desire to obtain more money. As Moldaver J.A. (as he then was) recognized in R. v. Deutsch (2005), 204 C.C.C. (3d) 361 (Ont. C.A.), at para. 24, leave to appeal refused, [2005] S.C.C.A. no. 533, “There are many reasons why people commit fraud. Greed is certainly one of them.” Moreover, this charge on motive could not have prejudiced the appellant because it effectively directed the jury that in order to infer that the appellant was motived by a desire to obtain more money, they first had to find that she took monies from NVT, in other words, that she had committed fraud. Put otherwise, as worded, this charge did not invite the jury to use motive as a basis for finding fraud, but rather as a consequence of finding that the appellant committed fraud. It is therefore harmless, even if it was in error.

[15] We also note that defence counsel, who made submissions concerning the contents of the charge, raised no objections to and was content with the portions of the final charge now impugned on appeal. In our view, defence counsel’s lack of objection here undermines the appellant’s assertions that the charge was unbalanced or unfair: see R. v. Evan, 2019 ONCA 715, 377 C.C.C. (3d) 231, at para. 234.

[16] We need not address whether any of the trial judge’s interventions to enforce the third-party suspect rule were in error. The appellant’s trial counsel disclaimed reliance on a third-party suspect defence and was permitted to make the case that there was a reasonable doubt about whether someone other than the appellant committed the fraud.

[17] Further, even if there were errors with the charge, the curative proviso would apply. The Supreme Court has recently confirmed that the curative proviso may apply “where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable”: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at para. 65. Here, the Crown’s case was overwhelming, and the verdict was inevitable. It rested on very strong direct and circumstantial evidence that clearly pointed to the appellant as the perpetrator of the fraud. The bank accounts were all linked to the appellant and, as Crown counsel submitted in his closing jury address, it is inconceivable that an identity thief would make the car payment, roof payment, or other payments to benefit the appellant.

[18] Finally, there is nothing on the record that supports the appellant’s suggestion that the trial judge demonstrated a reasonable apprehension of bias. In our view, “a reasonable person, properly informed and viewing the matter realistically and practically” would conclude that the trial judge could decide the case fairly: R. v. Ibrahim, 2019 ONCA 631, 379 C.C.C. (3d) 414, at para. 83. The transcript shows that the trial judge treated counsel and the appellant with courtesy and respect.

[19] We do not agree that the trial judge’s interventions and comments reach the high threshold to establish a reasonable apprehension of bias: see Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 30. In particular, the trial judge’s interventions to put an end to repetitive questioning by defence counsel were within his discretion and did not have a stifling effect on defence counsel. Importantly, no lines of inquiry were forestalled, and the trial judge clearly put to the jury the defence that someone other than the appellant had carried out the fraud. Nor do we accept that the trial judge engaged in a prejudged or favourable view of the Crown’s witnesses, as alleged by the appellant. The pre-charge conference and the final charge reflect a balanced, considered view of counsel’s positions and the evidence. Again, defence counsel’s failure to object to any part of the charge indicates an absence of concern about any appearance of unfairness to the appellant: see Evan, at para. 234. The appellant has failed to displace the strong presumption of judicial impartiality.

[20] We see no reason for appellate intervention.

[21] For these reasons, we dismiss the appeal.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“L. Favreau JJ.A.”