Court of Appeal for Ontario

Date: 20240220 Docket: C69237

Lauwers, Paciocco and Zarnett JJ.A.

Between

His Majesty the King Respondent

and

Kyle Robert Bancroft Appellant

Counsel: Myles Anevich, appearing as duty counsel Caitlin Sharawy, for the respondent

Heard: January 8, 2024

On appeal from the convictions entered by Justice Michael G. March of the Ontario Court of Justice on January 8, 2021, reported at 2021 ONCJ 12.

Lauwers J.A.:

[1] The trial judge summarized the facts on which he convicted the appellant in his reasons for sentence, which I paraphrase. There were two frauds. In one fraud, the trial judge found that the appellant, Kyle Bancroft, conspired with Roy Wiggins and Cary St. Michael to sell an encumbered chattel, a large wood processor, to a man in Quebec.

[2] Mr. Bancroft told the police and his insurer that the large wood processor had been stolen, along with a smaller one. He tried to collect the replacement value of both wood processors from Economical Insurance. If Economical Insurance had paid out under the insurance policy to Mr. Bancroft on his fraudulent claims for the loss of both wood processors, it would have lost over $200,000.

[3] The other fraud concerned the smaller wood processor. The trial judge found that it did not exist. However, Mr. Bancroft and Mr. St. Michael managed to persuade National Leasing Finance Company that it did and the firm advanced money to finance its acquisition. National Leasing lost some $54,838.05 as a result of the fraud perpetrated against it by Mr. Bancroft.

[4] Duty counsel advanced an argument about trial fairness and Mr. Bancroft made some substantive arguments based largely on his disagreement with factual determinations made by the trial judge. I deal with each in turn. As is often the case with inmate appeals, the transcripts are sparse.

A. Duty Counsel’s Argument

[5] Duty counsel argued that the trial judge did not give Mr. Bancroft sufficient assistance in defending himself, rendering the trial unfair.

(1) The Governing Principles

[6] The governing principles are summarized in R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at paras. 15-19. I reproduce them here without the internal citations. The primary principle is this: A trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect.

[7] The scope of this duty depends on the context and is circumscribed by what is reasonable in the particular circumstances of the case. A trial judge, of course, has other duties to ensure that the trial is effective, efficient, and fair to both sides. The trial judge must ensure that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.

[8] To warrant allowing an appeal on this ground, the trial judge’s failure to assist a self-represented accused must be material to the outcome of the case. Such a failure is not an independent ground of appeal but raises the possibility of an unfair trial or miscarriage of justice that might attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Not every breach of a trial judge’s obligation to assist a self-represented accused will render a trial unfair or result in a miscarriage of justice. The court must assess the cumulative effect of any breaches. The assessment must be holistic so that the appellant’s arguments are considered in the context of the trial as a whole. The court must determine whether, at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice occurred.

(2) The Principles Applied

[9] Duty counsel points to a particular error and argues that the trial judge was not alive to a misunderstanding that came out in Mr. Bancroft’s approach to the evidence. Mr. Bancroft did not know the difference between evidence and argument and was prevented from introducing material evidence in his closing argument. I would agree with duty counsel’s argument; however, as I explain, I do not agree that this error was material to the outcome of the case.

[10] Mr. Bancroft saw his primary adversary in the prosecution to be Mr. St. Michael, who had given evidence in an earlier prosecution involving Mr. Bancroft in Ottawa. Mr. Bancroft’s contention was that Mr. St. Michael’s evidence in the case under appeal was somewhat inconsistent with his Ottawa evidence. Mr. Bancroft put some inconsistencies to Mr. St. Michael in cross-examining him based on his recollection of what Mr. St. Michael had said at the Ottawa trial.

[11] Duty counsel argues that Mr. Bancroft did not know that he had to put all the inconsistencies to Mr. St. Michael in cross-examination and that he was not up to the challenge of doing so without a transcript. From time to time, Mr. Bancroft noted that he would be revealing these inconsistencies in Mr. St. Michael’s testimony in his argument – he would “leave it for closing.” Duty counsel argued that Mr. Bancroft’s use of this expression should have triggered an inquiry from the trial judge so that he could determine whether it was necessary to provide Mr. Bancroft with instruction on how to confront witnesses with inconsistent testimony. The trial judge did not catch the obvious problem.

[12] Mr. Bancroft had ordered a transcript of Mr. St. Michael’s Ottawa evidence, but it arrived only in time for argument, and he sought to reopen his cross-examination of Mr. St. Michael. The trial judge refused to recall Mr. St. Michael and refused to allow Mr. Bancroft to put the transcripts from the earlier trial into evidence or to refer to them in his submissions. In his closing argument to the trial judge, Mr. Bancroft expressed considerable confusion as to how it could be that he was not able to alert the court to what he considered to be inconsistencies in an important witness’s evidence.

[13] As noted, the primary principle is that a trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect. The trial in this case took far longer than expected – at 23 days – in part out of the trial judge’s continued and patient efforts to assist Mr. Bancroft in understanding what he needed to know to defend the case. Both the record and his oral submissions to this court disclose that Mr. Bancroft is intelligent and articulate. As in Forrester, Mr. Bancroft had a good understanding of trial procedure and of the issues that had to be addressed, except that he did not know how to effectively impeach Mr. St. Michael’s evidence in cross-examination.

[14] The idea that the defence will be brought out in its full force where the accused is self-represented is aspirational. It often founders on the inability of a lay person to cross-examine effectively. Wigmore famously called cross-examination “the greatest legal engine ever invented for the discovery of truth.” But it is not a skill easily exercised by a lay person, and a trial judge cannot cross-examine a witness without descending into the arena and losing neutrality.

[15] This court is not in a position to determine the actual use that could have been made of the transcripts from the Ottawa trial because they were not filed for this appeal. However, Mr. Bancroft’s error in failing to put Mr. St. Michael’s inconsistencies to him in cross-examination was basic, and the trial judge ought not to have permitted Mr. Bancroft to fall into it. Moreover, the trial judge should have accommodated Mr. Bancroft by recalling Mr. St. Michael once he detected the error during argument.

[16] However, to render a trial unfair or to have effected a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code, the trial judge’s error or errors must have been material to the outcome of the case. As I will explain, Mr. St. Michael’s evidence did not have the importance that duty counsel and Mr. Bancroft ascribe to it. Each of the substantive findings on which the trial judge based Mr. Bancroft’s conviction was rooted in the credible and reliable evidence of witnesses other than Mr. St. Michael.

[17] I begin by addressing the small wood processor and the large wood processor frauds.

(a) The Small Wood Processor Fraud

[18] No one except for Mr. Bancroft and his girlfriend, Ginger Zilney, gave evidence that the small wood processor existed. The trial judge discounted Ms. Zilney’s evidence in the following words, at para. 587:

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.

[19] There are two other reasons for the trial judge’s conclusion that the small wood processor never existed. First, Mr. Bancroft called two of his employees, Corey Blakely and Andrew Kasaboski, as witnesses. Their evidence is recorded by the trial judge at para. 557:

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.

[20] Finally, Mr. Bancroft provided a serial number for the small wood processor, which a representative of the alleged manufacturer stated outright was nonsensical. Moreover, in cross-examining Mr. St. Michael, Mr. Bancroft accepted as accurate Mr. St. Michael’s statement that the false serial number was in Mr. Bancroft’s own handwriting. The trial judge concluded, at para. 565:

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.

[21] Mr. Bancroft has not established that the trial judge made any error in concluding that he executed the small wood processor fraud, nor do the concerns raised about the unstated inconsistencies address these essential findings.

(b) The Large Wood Processor Fraud

[22] I turn now to the large wood processor. Evidence about this processor was given by Mr. Bancroft, Mr. Wiggins, Mr. St. Michael, Lawrence Edmonds, and Bernard Dumont, who went by the name “Butch.” Mr. Dumont was a businessman who lived in Maniwaki, Quebec, and he purchased the large wood processor from Mr. Bancroft. The large wood processor was eventually found on his lot in Maniwaki.

[23] The trial judge accepted that both Mr. Wiggins and Mr. St. Michael were Vetrovec witnesses. The trial judge self-instructed on the Vetrovec warning and how to deal with “unsavoury witnesses, such as in this case, St. Michael and Wiggins,” at paras. 538-40. He noted that: “[A]s Bancroft’s trier of fact in law, I must pay close attention to the evidence of St. Michael and Wiggins and treat it with the caution it warrants.” The trial judge did not err in self-instructing on the Vetrovec warning. He then looked for independent evidence to corroborate the evidence of the Vetrovec witnesses.

[24] The trial judge made the finding, at para. 572:

I find that St. Michael, Wiggins and Edmonds transported the big wood processor to Maniwaki, Quebec 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.

[25] Most importantly, the trial judge relied on the evidence of Mr. Edmonds as an independent witness. There is no need to go over all of the points of congruence between the evidence given by Mr. Edmonds and the evidence given by Mr. St. Michael and Mr. Wiggins. However, the trial judge pointed out a few key points, at para. 576:

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.

[26] This led the trial judge to reject Mr. Bancroft’s claim, at para. 561:

I reject fundamentally Bancroft’s claim that his wood processor or wood processors was or were stolen because l 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 Quebec making firewood with his wood processor. Edmonds had moved a wood processor on a prior occasion for another project Bancroft had out of town.

[27] The trial judge added a telling detail at para. 578: “Of course, the machinery was ultimately found by police some years later exactly where St. Michael and Wiggins say they brought it.”

[28] The trial judge also treated Butch as a Vetrovec witness. He said, at para. 578:

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.

[29] The trial judge also invoked the evidence of another independent witness, Kevin Atwater. He stated, at para. 577:

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 [he] had used it the night before.

[30] In my view, the evidentiary findings by the trial judge, based on all the evidence, are more than sufficient to prove the theft of the large wood processor as part of Mr. Bancroft’s plan. There is no basis for any concern that these findings could have been shaken by the alleged inconsistencies in Mr. St. Michael’s evidence that Mr. Bancroft sought to raise.

B. Mr. Bancroft’s Arguments

[31] Mr. Bancroft made oral submissions and advanced eight arguments. His primary submission was that he had inadequate assistance, largely echoing the arguments of duty counsel. I dismiss this argument for the reasons noted above. Mr. Bancroft also argued that, despite his asking, the trial judge never explained to him the elements that the Crown had to prove to establish his guilt. The trial judge explained his approach to Mr. Bancroft in his reasons for dismissing Charter applications brought by Mr. Bancroft. He said, at paras. 282-83:

At the outset of this trial, I refrained from explaining to Bancroft the essential elements of each of the 23 specific offences he was alleged to have committed. The exercise, I felt, would have overwhelmed a self-represented accused.

Instead, I opted to assist Bancroft piecemeal where he appeared to require help. I firmly believe I was not in error in doing so.

[32] The transcripts available do not show the trial judge in action on this front. That said, Mr. Bancroft does not point to any particular lack in his understanding, and he appeared to be able to handle himself in cross-examination. He knew what he was going for. In the absence of evidence to the contrary, we have been provided with no reason to question the trial judge’s assertion that he provided the required assistance when it was necessary.

[33] Second, Mr. Bancroft argued that he was not informed that he could not recall witnesses or put his banking records into evidence during his closing argument. He argues that he repeatedly mentioned that he would do so in his closing and was never instructed that he could not. Specifically, the appellant sought to recall Mr. St. Michael, Mr. Edmonds, and Detective Constable Snider.

[34] Given the bases for conviction discussed above, it is not clear how the evidence of any of these witnesses might bolster Mr. Bancroft’s defence. Mr. St. Michael’s evidence, as a Vetrovec witness, was already approached with caution and any of Mr. St. Michael’s evidence the trial judge invoked was corroborated. Mr. Edmonds’ evidence was critical in Mr. Bancroft’s conviction. Mr. Bancroft wanted to cross-examine him on his vehicle’s log books. However, it is not clear how that would have changed any of Mr. Edmonds’ clear and distinct evidence about transporting the large wood processor to Quebec following Mr. St. Michael and Mr. Wiggins, who were driving a Chevrolet, which another witness, Mr. Atwater, testified was Mr. Bancroft’s truck. Nothing Detective Constable Snider might say would deflect from the convicting evidence.

[35] Third, the transcript of Mr. Bancroft’s closing argument shows that he was expecting to put his banking records into evidence, specifically to show that he did not receive any of the proceeds of fraud. He said:

You know, in my mind, and I know it’s been before, it says interact e-transfer you sent to Kyle was accepted. There’s no proof it went to Kyle Bancroft. That’s another reason I wanted to enter my bank accounts to prove that nothing went into my bank accounts. No e-transfer was accepted.

For a large sum that we’re dealing with here, beyond a reasonable doubt to me would be, find out where that money, did it go into Mr. Bancroft’s? It's simple for the police to do. They got all the means to pull my bank records. They can pull on Mr. St. Michael’s where it went to email address the whole bit. We don’t know. There’s just a name Kyle on there. Nothing else.

[36] This banking evidence, if adduced, would not show that Mr. Bancroft did not get the proceeds of the frauds. It would only show that he did not accept the proceeds in his bank account. Although the trial judge should have corrected Mr. Bancroft’s misunderstanding of the process for presenting the banking evidence, the records he was prevented from presenting were not capable of affecting the outcome.

[37] Fourth, Mr. Bancroft submitted that the trial judge erred in interpreting the evidence of Mr. Atwater. Specifically, he erred in finding that Mr. Atwater said he saw Mr. Bancroft’s truck when Mr. Atwater actually said the opposite. However, while the transcript discloses a discussion between Mr. Atwater and Mr. Bancroft concerning when Chevrolet changed from producing vehicles with rounded grills to square grills, at no point does Mr. Atwater resile from his position that he believes he saw Mr. Bancroft’s vehicle. Mr. Atwater also repeatedly states that a vehicle’s grill can be changed. The transcript does not demonstrate any misapprehension of Mr. Atwater’s evidence by the trial judge. It shows instead that the trial judge accepted Mr. Atwater’s evidence that the truck he saw on the highway accompanying the large wood processor and pulling the conveyor belonged to Mr. Bancroft. This was open to him.

[38] Fifth, Mr. Bancroft raised an issue with the Crown’s disclosure. Specifically, he contended that the Crown did not disclose numerous meetings with Mr. St. Michael where the appellant was discussed, that disclosure was often delayed, and that he was not provided certain evidence because he was self-represented. There is no merit to this complaint.

[39] Mr. Bancroft did raise concerns about Crown disclosure with the trial judge, who addressed them directly. At para. 152 of the reasons concerning Mr. Bancroft’s Charter application, the trial judge said: “Regarding additional disclosure requested by Bancroft, he conceded that any information regarding letters written by Detective Constable Snider on behalf of the principal Crown witnesses against him, Mr. St. Michael and Mr. Wiggins, were disclosed to him on September 4, 2019, prior to the termination of their cross-examinations.” The trial judge also noted, at para. 153: “Further, the statement made by Mr. Wiggins to police, which Bancroft was seeking, was disclosed to him on June 14, 2019, well prior to Wiggins giving his evidence at trial.” The trial judge added, at para. 158: “However, Bancroft conceded that at the outset of trial, the Court explained to him how he should go about requesting disclosure, and to raise it with the Court if he was unsatisfied with the Crown response.” Finally, he added at para. 159: “Bancroft agreed that he did not follow this procedure.” In short, Mr. Bancroft’s submissions on this issue have no merit.

[40] Sixth, Mr. Bancroft submitted that the Crown improperly disclosed settlement discussions on some of the charges with the trial judge in open court, despite outstanding charges related to the information discussed. There is nothing in the sparse transcripts that casts light on this complaint. That said, Mr. Bancroft does not explain what prejudice he alleges. That he was fully committed to the defence of the prosecution is plain on the record.

[41] Seventh, Mr. Bancroft submitted that he was improperly pressured to disclose whether he was going to testify. I am not troubled by this complaint. There will come a time in any prosecution when the accused, here Mr. Bancroft, must disclose whether he will call a defence. The adequate management of court resources is an ever-pressing issue. It is not clear to me that this prejudiced Mr. Bancroft in the slightest. He was also an experienced accused.

[42] Finally, Mr. Bancroft submitted in his Notice of Appeal, although not in his oral submissions, that the judge incorrectly found that he was behind on payments to National Leasing for the small wood processor. Mr. Bancroft asserts that the Crown supplied a payment schedule that showed he was never behind in those payments. This court does not have the payment schedule before it, nor did the trial judge refer to it. However, in its closing, the Crown noted that Aaron Nemchin, an account manager at National Leasing, testified that Mr. Bancroft had at times been behind in his payments, but that he did eventually make them. The trial judge’s reasons are limited on this issue. His reasons for conviction state that Mr. Bancroft made payments on the small processor until it was allegedly stolen in January 2016, that National Leasing encouraged Mr. Bancroft to continue to make his monthly payments while pursuing his insurance claim, and that “National Leasing only received four paid monthly instalments under the Lease Agreement it had with Bancroft”: at paras. 20-24.

[43] This concern raised by Mr. Bancroft relates to a relatively minor evidentiary question in the context of the whole trial. While greater clarity on the state of payments would have been desirable, payment or nonpayment to National Leasing was not a significant element of the trial judge’s reasons for conviction.

[44] Mr. Bancroft’s additional arguments, individually or cumulatively, are not capable of affecting the result.

C. Disposition

[45] To sum up, the primary principle is that a trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect. The trial judge did not give adequate assistance to Mr. Bancroft.

[46] The trial judge made two general errors. First, the trial judge was not alive to a misunderstanding that was evident in Mr. Bancroft’s approach to the evidence. Mr. Bancroft did not know the difference between evidence and argument. Nor did he know that to impeach a witness with prior inconsistent evidence he needed to put the inconsistent statement to the witness in cross-examination. Finally, the trial judge erred in not permitting Mr. Bancroft to correct for this misunderstanding by recalling a witness and by giving him a way to put forward transcripts and banking records.

[47] However, to warrant allowing the appeal, the trial judge’s failure to assist a self-represented accused must be material to the outcome of the case. Such a failure is not an independent ground of appeal but raises the possibility of an unfair trial or miscarriage of justice that may attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code. The court must determine whether at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice occurred.

[48] In my view, in practical terms, the evidence against Mr. Bancroft was overwhelming. Nothing in the prospective evidence of Mr. St. Michael, Mr. Wiggins, Mr. Edmonds, or Detective Constable Snider could have affected the outcome, nor could the banking records or the transcripts of Mr. St. Michael’s prior testimony in another case. To borrow a metaphor, it would not have been enough, to raise a reasonable doubt, for Mr. Bancroft to make limited further tugs at the leaves of the evidence against him – he needed to make the tree fall, and there was no prospect that the evidence he wanted to submit could do that. I would find that despite the trial judge’s errors, Mr. Bancroft had a fair trial. There was no miscarriage of justice.

[49] I would dismiss the appeal.

Released: February 20, 2024 “P.D.L.” “P. Lauwers J.A.” “I agree. David M. Paciocco J.A.” “I agree. B. Zarnett J.A.”