COURT FILE NO.: CR-20-599 DATE: 2022 04 08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN D. Ida, for the Crown
– and –
MARY THOMPSON R. N. Guerts, for the Applicant
HEARD: April 5, 2022
RULING ON ABUSE OF PROCESS APPLICATION FOR STAY OF PROCEEDINGS UNDER S. 24(1) OF THE CHARTER
J.M. Woollcombe J.
Introduction
[1] The applicant, Mary Thompson, is charged with one count of fraud over $5,000, alleged to have been committed between January 1, 2012 and December 31, 2017.
[2] Ms. Thompson brings an application to stay the proceedings under s. 24(1) of the Charter on the basis of violations of her ss. 7 and 11(d) rights. As I understand her position, it is that the Crown’s conduct, in not obtaining and disclosing documents referred to by the defence as “handwritten calculated forms” impairs her ability to make full answer and defence. She submits that in the absence of this evidence, her trial would be unfair and that having a trial would amount to an abuse of process.
[3] The Crown’s position is that the documents have never been in the hands of the police or the Crown and that they were missing before the investigation began. The Crown submits that there has been no s. 7 violation and that any determination as to whether there has been an impairment of the applicant’s ability to make full answer and defence as a result of the missing documents should be made at the end of the trial, not now.
[4] The trial in this matter is scheduled to commence on May 24, 2022 for 4 to 5 weeks with a jury. I heard this application as case management judge.
The allegations
[5] While the Crown has set out many of the facts it intends to rely on in support of its case at trial, most of these need not be reviewed for the purposes of this application. The application does not turn on the strength of the Crown’s case, compelling as it appears to be.
[6] By way of overview, I understand the allegations to be as follows.
[7] The applicant worked for the Greater Toronto Airport Authority (“GTAA”) for almost 19 years. Until May 2016, she worked in the Revenue Billing and Collections Department (“RBCD”) collecting accounts receivable.
[8] The Commercial Vehicle Holding Area (“CVHA”) collects funds from taxis and limousines that are licensed to operate on airport property (permit fees, exam fees etc.) The collected funds, consisting of cash and cheques, are delivered to the RBCD in envelope. The applicant’s job was to collect funds from the CVHA. Sometimes the applicant picked up the envelopes with the funds and sometimes they were provided to her by employees of CVHA, Amar Dulku and Nasim Aktar.
[9] In order to deliver the funds from CVHA, Mr. Dulku prepared a spreadsheet with the total transaction activity for the period and summarized the cash and cheques being provided to the RBCD for deposit. Envelopes with the funds were then given to the applicant. A manual log recorded the date and amount of money in the envelope. Mr. Dulku said that the applicant would count the money prior to signing the manual log. Manual logs with columns headed “Date”, “Total deposit”, “Received by” and “Signature” have been provided, with Ms. Thompson’s name and signature beside various dates and amounts between 2011 and May 2017.
[10] Collected funds and supporting documentation were given by the applicant to Nimjet Manji, who made bank deposits of the funds. Ms. Thompson, and her replacement after May 2016, would record these collections into the GTAA’s financial accounting system, Oracle, after the bank deposits had been made.
[11] It is the Crown position that there was a gap in the GTAA accounting system such that no reconciliation was done comparing the records of the funds collected from the CVHA by the applicant on behalf of RBCD with the records of the funds deposited into the bank account by Ms. Manji. The Crown theory is that the applicant took advantage of this gap and took cash from the CVHA funds before providing the envelopes to Ms. Manji for deposit.
[12] After her transfer to the Airport Planning and Technical Services Department of the GTAA in May 2016, the applicant’s job changed. Selina Betti, the applicant’s former supervisor in RBCD, learned that she was still collecting funds from CVHA after her departure from RBCD and asked her to stop doing so. Ms. Betti then obtained the manual logs and CVHA spreadsheets for 2016 and 2017 and compared them to the bank deposits. She discovered that some of the funds collected from CVHA had not been deposited into the GTAA bank account.
[13] The GTAA retained KPMG to conduct a forensic audit. KPMG found that CVHA records showed $460,317 having been transferred to the GTAA, but that RBCD records showed only $238,359 having been deposited. This suggested a $221,958 loss.
[14] It is the Crown’s position that the applicant received from the CVHA the funds that are set out in the manual logs and excel spread sheets, but did not provide all of the funds to Ms. Manji and kept the difference. Ms. Manji deposited what she was given, and the RBCD recorded these, with no one knowing that the deposits were less than what had been provided by CVHA.
[15] The applicant’s position is that when she signed the manual logs in receipt of the funds from the CVHA, she never verified the amounts in the envelopes. She says that she then handed over the funds to Ms. Manji, not knowing how much there was. Her position is that she had no knowledge of, and no responsibility for any shortfall between what was received and what was deposited.
The documents said to be lost or missing
[16] The documents alleged to be missing are what the defence calls “handwritten calculated forms”. The evidence as to what these documents are, and what information they may contain, is far from clear.
[17] The only evidence about the existence of such “forms” is from Ms. Manji. In her interview with KPMG, Ms. Manji said that she received the CVHA funds from the applicant and prepared the deposit slips based on the paperwork from the applicant. The applicant would give her a deposit list and they would each sign off. Ms. Manji would count the funds and acknowledge what she was receiving. Asked where the list or forms that they had signed off on were, Ms. Manji said that she did not have a copy and that she just put them in the folder. Asked who had access to the cabinet where the folders were kept, Ms. Manji said, Ms. Betti and the applicant, and that it was not a personal cabinet.
[18] In a follow-up interview, Ms. Manji was again asked about the slips that were signed. She agreed that for collections from CVHA, there was no slip returned to them to show how much money was collected. She said she made sure that whatever she counted was deposited.
[19] At the preliminary inquiry, Ms. Manji was asked about the documentation provided to her by the applicant with the funds from CVHA. Her evidence about documentation includes the following:
…The cash would go to, supposedly Mary, and then that monies, after she totals it, would come back to me to enter it in the deposit slips, and then the paperwork would finally go back to Mary to, to enter it in the system, but the deposit itself would be taken by me, by me to the bank to deposit…
…So if CVHA or whatever department brought that monies, they should have a sheet identifying what they’ve collected so, and, and when Mary counted that, she would acknowledge with her initials on that paper. So that paper would come back – come to me now.
Q. So you have that paper. Okay.
A. Right.
Q. Okay. So I’m going to ask when she brings that piece of paper over with the cash…
A. Yes.
Q. …what happened to that piece of paper
A. So, in my case, after I count the monies and put it in the deposit slip, then all the information goes back to Mary for her to put in in the system…
Q. Mm-hmm.
A. …and it will be put in the folder for that day.
Q. Okay.
Q. So Mary takes back that piece of paper then?
A. Everything goes with the deposit…
Q. Okay.
A. …of the day.
[20] In her affidavit, the applicant says that Ms. Manji testified at the preliminary inquiry that there was a “handwritten calculation form” used when monies were counted by more than one person. This is not a fair or accurate characterization of Ms. Manji’s evidence. The applicant says, correctly, that no such documents have been disclosed. Further, she says that these documents, if they existed, are essential to her defence because they could prove her innocence. She also says “my involvement maintains that these forms never existed” and that Ms. Manji falsified her evidence.
[21] In her evidence on the application, Ms. Thompson testified that she had never seen any sort of “handwritten form” as described by Ms. Manji. She never signed any such document or form. She has no evidence as to what calculations were done on the forms, who signed them, or what has become of them.
[22] As I understand the applicant’s position, it is that if there exists documentation setting out the amounts of funds she provided to Ms. Manji, and if these figures correspond to the amount that she signed for having received from HVCA, these documents would demonstrate her innocence.
[23] The KPMG report is dated March 20, 2018. The affidavit evidence of the Officer-in-charge of this case, Det. Boyce, is that he began his investigation on December 11, 2018. He obtained documents from the GTAA that were viewed by him and provided to the Crown’s office. He says that he never saw the type of “form” described by Ms. Manji that may have been shown to her when she provided the CVHA funds. He says that such documents did not appear to exist at the time of the KPMG Report.
[24] There has never been a disclosure request made by the defence for these “handwritten calculated forms”. Indeed, the Crown says that all the defence requested at the time of the Judicial Pre-trial was “forms” kept by Ms. Manji, which would be the deposit documents that have been disclosed.
[25] The Crown’s position is that there no longer exist any of the documents described by Ms. Manji, that they did not exist at the outset of the KMPG investigation and that they did not exist at the outset of the criminal investigation. The Crown’s position is that there has never been anything in the Crown’s possession for it to disclose. However, the Crown has, in light of this application, asked Det. Boyce to make further inquiries of the GTAA about these documents. To date, nothing has been provided, although efforts are apparently continuing.
Analysis
[26] The applicant’s position is that there has either been non-disclosure or a loss of these “forms”, that are said to be necessary for the applicant to make full answer and defence and that a stay for abuse of process is warranted.
[27] A stay of proceedings is a drastic remedy that halts a prosecution, frustrates the truth-seeking function of a trial and deprives the public of the opportunity to see justice done on its merits. Stays are to be granted only on rare occasions. It is for the applicant seeking a stay to show that no other remedy would cure the prejudice that would occur with a trial. Abuse of process cases usually fall into two categories of cases, the first of which are cases in which state conduct compromises the fairness of the trial. This is said to be such a case: R. v. Babos, 2014 SCC 16 at para. 31.
[28] Assessing a s. 7 claim on the basis of evidence lost or destroyed by the prosecution requires two steps. First, the court determines whether the loss or destruction of the evidence results in a breach of s. 7 based on an interference with the accused’s right to make full answer and defence. Second, if there has been a breach, the court considers the issue of remedy: R. v. Hersi, 2019 ONCA 94 at para. 25; leave to appeal dismissed March 10, 2022; R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.), at para. 52; R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.), at para. 82; R. v. La, [1997] 2 S.C.R. 680 (S.C.C.), at paras. 17-24.
[29] Accordingly, I have first considered whether the record establishes that there has been any loss or destruction of evidence by the prosecution that results in a s. 7 breach. As Doherty J.A. explained in R. v. Bero, [2000] O.J. No. 4199 (C.A.), the approach to be followed in cases where the accused claims a failure of the state to preserve material in the possession of the Crown results in a Charter breach is derived from R. v. La, and was summarized by Roscoe J.A. in R. v. B. (F.C.) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 (N.S.C.A.) at 547-48:
(1) The Crown has an obligation to disclose all relevant information in its possession. (2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence. (3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence. (4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. (5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it. (6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights. (7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation. (8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor. (9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy. (10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
[30] Applying these principles, the applicant has not satisfied me, on a balance of probabilities, that there has been a violation of her s. 7 rights by the loss or failure to disclose the “forms” identified by Ms. Manji. In reaching this conclusion, I rely on the following facts:
- It is far from clear what these documents or forms are and what information they contain. Indeed, the evidence of Ms. Manji, at its highest for the applicant, is that the forms included a record of the funds the applicant was providing to her and that they both signed them. The applicant has testified that she never saw these forms or signed them, raising real questions about what they were and whether they even existed;
- There is no evidence that these documents were in the possession of the GTAA at the time of the KPMG audit. They are not referred to in the KPMG report as documents that were reviewed or viewed. Det. Boyce has never seen them. It would appear that if they existed, they were no longer in existence at the time the investigation began. There is no basis upon which to conclude, therefore, that these are documents that have ever been in the hands of the prosecution, or that the prosecution ever had any duty to preserve them;
- The only evidence as to what was done with these documents after Ms. Manji saw them is that they were returned to the applicant (who, of course, denies ever having even seen them). Ms. Manji cannot say, or at least has not said, what happened to them after she gave them to the applicant, other than that she put all the documents in “the folder”. These documents do not appear to have been located with the deposit documents kept at RBCD. While the Crown’s position is that if these documents existed, they were likely destroyed by the applicant, the evidence is far from sufficient to make such a finding. All I can say is that they so not appear to have existed in the RBCD records since the commencement of the KPMG investigation;
- Disclosure has been made in this case of all of the documents produced to KPMG by the GTAA. These forms were not located. No disclosure request was ever made by the defence for these documents. It was only in response to this application that the Crown, having never seen these forms or been asked to locate them, asked Det. Boyce to again verify with the GTAA whether they exist. Not surprisingly, nothing has been located to date. Of course, if these forms are located, they must be disclosed. But at this point, the evidence strongly suggest that they are forever lost.
[31] In these circumstances, I cannot conclude that the Crown or police failed to take reasonable steps to preserve the forms for disclosure. The evidence overwhelmingly suggests that these forms were not, at the outset of even the KPMG investigation, in the hands of the GTAA. There can be no fault on the part of the police or prosecution for any loss or destruction of the forms as the facts emerged on this application.
[32] Even if the defence cannot establish that there was unacceptable negligence on the part of the prosecution that resulted in the loss of these forms, a s. 7 breach may still be found if the defence can show that there has been such prejudice to the applicant’s right to make full answer and defence that a fair trial is impaired.
[33] The applicant says that I can and should assess the prejudice she will suffer if compelled to have a trial without these documents, which are necessary for her to make full answer and defence. I recognize that there are some cases in which the prejudice of the lost evidence is so strong that it makes sense to consider whether to stay the charges prior to a trial. However, there is a significant body of appellate jurisprudence directing that a decision about whether to stay proceedings on the basis of non-disclosure or lost evidence should usually be made at the end of the trial: R. v. Bero, at para. 18; R. v. La, at para. 27. This makes sense because a stay is only to be granted in the clearest of cases and the court is better positioned to determine if there has been prejudice, and its extent, at the end of the trial: R. v. Johnson, 2007 ONCA 419.
[34] The case law sets out two further advantages to assessing a stay application after the merits of the case are determined. First, if the Crown’s case does not prove the offence alleged beyond a reasonable doubt, the proper result of the case is an acquittal, rather than a stay. Second, deciding the merits of the case and then the abuse enables all appeals of a case to be brought at one time: R. v. Scott, 2002 O.J. 2180 at para. 7.
[35] In my view, the applicant has failed to establish that “the appropriateness of a stay is manifest” such that her application should be decided at this point. I am far from persuaded that the forms would assist the applicant at all, or that she is prejudiced by their absence. It seems that the forms, or pieces of paper, or whatever existed if anything, documented the funds that Ms. Namji received from the applicant. The numbers recorded on them would, therefore, likely match the numbers on the deposit slips used by Ms. Namji to deposit the HCVA funds into the GTAA bank account. Were this the case, they would be of no assistance at all to the applicant’s defence.
[36] I appreciate that if the forms exist, and if they showed that the funds provided by the applicant to Ms. Manji corresponded with the funds that were received by the applicant from the CVHA, this might well suggest that the applicant transferred everything that she received on to Ms. Manji. This might indicate that any deficiencies in the deposits were because of someone else. The problem is that it is completely speculative to say that these forms contained the information that the applicant suggests. Of course, given her evidence that she never saw them, this theory becomes even more speculative.
[37] In my view, it is premature at this stage to conclude that there has been any prejudice to the applicant’s ability to make full answer and defence or to her right to a fair trial. Accordingly, this application must be deferred, to be decided after the trial on its merits has been determined. At that point, should the applicant wish to proceed with the application, the trial judge will have the benefit of having heard further evidence about these forms, and will be significantly better positioned to assess what, if any prejudice to the applicant’s ability to make full answer and defence flows from the loss of these forms.
Proceeding to trial without a forensic independent audit
[38] The applicant also submits that the Crown’s decision to proceed to trial without what is characterized as “an objective, forensic independent audit” creates “the potentiality of false allegations which may lead to a wrongful conviction.”
[39] I understand it to be the defence position that the Crown is proceeding to trial with oblique motives, influenced by the complainant GTAA and by KPMG as agent. The defence submits that by pointing to the applicant, the GTAA has avoided taking responsibility for its own accounting errors and is, therefore, improperly accusing the applicant of wrong-doing. Effectively, the applicant claims she is being scapegoated in an unfair proceeding against her. Counsel makes much of the fact that the applicant is self-represented (as counsel has been retained for this motion, but not for trial) and that this prosecution is unfair.
[40] There is not an iota of evidence that supports counsel’s bald allegations, as a result of which they must be rejected.
[41] Moreover, it is not for the court to order the Crown to produce, or to adduce, an expert report that the defence asserts is necessary. I am not convinced that the sort of forensic audit contemplated by the defence would have answered the questions raised by the applicant. But, had the applicant thought that an expert was necessary, she could have retained her own expert to answer these questions.
[42] Given that it is the Crown’s burden to prove its case beyond a reasonable doubt, and that the Crown has chosen not to retain the expert opinions that the defence asserts are required, it will be open to the applicant to assert an absence of this evidence to support her argument that the Crown’s case falls short of proving her guilt.
[43] I was provided with no argument to suggest that a stay resulting from an abuse of process could ever be a remedy for the allegations made against the Crown for not retaining this sort of expert opinion report. I decline to make any order relating to this issue.
Conclusion
[44] I am not satisfied that there has been a s. 7 breach of the applicant’s Charter rights. A stay of proceedings cannot be granted on this record at this stage of the proceedings. The issue must be deferred to the trial judge to be considered, at the request of the applicant, at the conclusion of the trial or as the trial judge determines is appropriate.
J.W. Woollcombe J.
Released: April 8, 2022