DATE: 20021002 DOCKET: C37605

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT MACKENZIE (Appellant)

BEFORE: O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

COUNSEL: Brian H. Greenspan and Peter W.S. Copeland for the appellant

Anthony K. Graburn for the respondent

HEARD: September 20, 2002

On appeal from the convictions entered by Justice J. Kenkel on November 30, 2001.

E N D O R S E M E N T

[1] [1] This is an appeal from convictions for fraud and conspiracy to commit fraud arising from the operation of a food bank by St. Francis Community Services.

[2] [2] At the beginning of the trial, the appellant conceded that there had been a fraud committed. Specifically, it was agreed that three of the employees of the food bank had solicited or were involved in soliciting donations on behalf of St. Francis Community Services and that they gave assurances to donors that the donated food would be given to the needy through the food bank, not sold. It was also conceded that approximately $500,000 of donated items had, in fact, been sold to wholesalers or liquidators.

[1] [3] At the time of the appellant’s trial, the three employees had pleaded guilty to charges arising from the fraudulent scheme. The only issue at the appellant’s trial was whether the Crown had established that the appellant was involved, either directly or as a party, in the fraud.

[2] [4] The appellant was a director of St. Francis Community Services. Although there was little direct evidence about the role the appellant played in the day-to-day operation of the food bank, the trial judge carefully reviewed the documentary record and made a number of findings. In his reasons, the trial judge described the appellant as the manager of the business operating as St. Francis Food Bank. He said that the three employees who admittedly participated in the fraud worked for and with the appellant and that the appellant was “in charge of the food bank”. The trial judge found that the appellant was apprised of the details of the food bank operation on a daily basis and that he played an “integral role” in running the food bank. There was sufficient evidence upon which the trial judge could make each of these findings and indeed the findings are not challenged in this appeal.

[3] [5] The appellant raises three grounds of appeal.

Misapprehension of Evidence of Randy Crane

[4] [6] Randy Crane was an employee of the food bank and was an active participant in the fraudulent scheme. Prior to the appellant’s trial, Crane made an arrangement with the Crown and entered a plea of guilty. Before he was sentenced, Crane was called by the Crown to give evidence at the appellant’s trial.

[5] [7] The trial judge referred to Crane’s evidence in reaching his conclusion that the appellant had knowledge of and participated in the fraudulent scheme. The critical part of Crane’s evidence related to a meeting between the appellant and Crane on January 24, 1997. The appellant argues that the trial judge misapprehended Crane’s evidence about what Crane said at the meeting and erroneously concluded that Crane’s evidence implicated the appellant in the fraud.

[6] [8] In his reasons for judgment, the trial judge dealt with the January 24, 1997 meeting as follows:

In [sic] January 24, 1997 he [Crane] met with Mr. MacKenzie to discuss his concerns about the selling of donated food to liquidators. He suggested that they open a “proper food bank” that would “legitimize” what they were doing. Mr. MacKenzie did not react with shock when being told that large volumes of donated food was [sic] being sold to wholesalers nor to the assertion that St. Francis was not a legitimate food bank. Mr. Crane reports that Mr. MacKenzie told him to “mind his own business” using an expletive.

While that brief exchange bears directly on the issue of Mr. MacKenzie’s knowledge and participation in the fraudulent scheme, more telling is the fact that after that date the fraudulent diversion of donated food to the wholesalers for profit continued. If Mr. MacKenzie was an unknown victim of the massive fraud scheme occurring in his office it is reasonable to expect that he would take strong and decisive action to stop that crime once he was alerted to it. [Emphasis added.]

[7] [9] The appellant contends that Crane’s evidence, particularly after the cross-examination, does not support the trial judge’s statements that Crane told the appellant “that large volumes of donated food was [sic] being sold to wholesalers” or that “St. Francis was not a legitimate food bank”. We disagree.

[8] [10] In examination-in-chief, Crane was asked to describe the exact conversation at the meeting. He answered:

Basically that the – my concern was the fact that a lot of the product was going out to the stores and to liquidators and that by opening up a proper food bank then we would legitimize what we were doing. At that point, you know, Robert MacKenzie told me to basically mind my own business.

[9] [11] Although the trial judge used different language to describe the conversation in his reasons, the trial judge’s recitation of the evidence was clearly supported by the answer set out above.

[10] [12] The appellant argues, however, that when cross-examined, Crane resiled from the answer given in-chief and that the trial judge should have based his conclusion on Crane’s cross-examination or, at a minimum, should have given reasons for why he preferred the evidence in-chief to the answers given in cross-examination.

[11] [13] We are not satisfied that Crane’s cross-examination, when read as a whole, contradicts the answer given in-chief. When cross-examined, Crane testified that he had a concern that the donated food was not necessarily going out to the charities. The following brief exchange upon which the appellant relies then took place:

Q: I see. And how did you voice that concern to Mr. MacKenzie?

A: I – I remember the conversation, in general. I spoke with – I came in, I sat down with Mr. MacKenzie, I believe I spoke with David Penney prior to that, David told me not to mention this to Bob. I went and mentioned it to Bob anyway. He and I sat down, we were talking, I explained the fact that, you know, we got a good program here, it just needs some manipulating to make it a little bit more - what’s the word, make it a better program.

Q: More efficient?

A: Well, efficient is not really a good word. To make it a better program, and that would be to get the people coming in, picking up the people from the community, coming in picking up food, and getting people to or getting the charities to come in and pick up food.

Q: And that was the extent of your conversation with him about that?

A: Well, no. Bob told me – Bob in short words, mind my own business. [Emphasis added.]

[12] [14] Although these answers cast the conversation in a somewhat different light, they do not, in our view, retract what had been said in-chief. Indeed, the statement in cross-examination that the program would be better if people and the charities came in and picked up food is not inconsistent with the answer in-chief that the product was going to wholesalers and liquidators and that opening a proper food bank would legitimize the operation. Evidence at the trial had clearly established that a proper food bank provides food to people and charities and does not sell the donated products.

[13] [15] In our view, it was open to the trial judge to rely upon Crane’s evidence in the manner in which he did. We are not persuaded that he misapprehended that evidence.

Vetrovec Warning

[14] [16] The appellant argues that the trial judge erred by not approaching his assessment of Crane’s evidence with a degree of special caution, in accordance with the principles in R. v. Vetrovec (1982), 67 C.C.C. (2d) 537 (S.C.C.).

[15] [17] It is correct that the trial judge did not provide an explicit self-instruction in his reasons in accordance with Vetrovec. We are not persuaded, however, that the trial judge failed to approach Crane’s evidence with sufficient caution. The trial judge was aware of the circumstances upon whch the defence challenged Crane’s credibility. Indeed, in an exchange with counsel during submissions, the trial judge indicated that he was aware he could consider the fact that Crane had not yet been sentenced in assessing credibility. Moreover, Crane’s evidence was not essential to the Crown’s case. Guilt or innocence did not turn on the trial judge accepting Crane’s evidence. There was ample evidence independent of Crane upon which to convict the appellant: R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.). We are not prepared to interfere on this ground of appeal.

Non-Profit Receipts

[16] [18] Many of the donors to the food bank received “non-profit receipts” from St. Francis Community Services for products or services they donated.

[17] [19] The appellant contends that the trial judge erred in drawing an inference that the nature and issuance of the non-profit receipts was evidence that the appellant participated in the fraudulent scheme. We do not accept this argument.

[18] [20] After carefully reviewing the form of the receipts and the manner in which they were issued to donors, the trial judge concluded that the receipts conveyed the impression that they were charitable tax receipts and that they were intended to help secure donations to St. Francis. It was not contested at trial that many donors thought the receipts were charitable tax receipts. There was evidence that two of the employees described them to donors as “tax receipts”.

[19] [21] The appellant signed some of the non-profit receipts that were issued to donors. The trial judge found, correctly in our view, that these receipts formed an integral part of the fraudulent scheme to induce donors to send their food to St. Francis. The trial judge then concluded that the fact that the appellant signed and issued plainly fraudulent receipts provides direct evidence that the appellant was knowingly involved in the conspiracy. There was no evidence to the contrary.

[20] [22] Given the trial judge’s conclusion that the appellant was involved in a managerial role in the operation of the food bank, it was open to the trial judge to draw an inference that the appellant’s involvement with the non-profit receipts was evidence that he was involved in the fraud. We see no merit in this ground of appeal.

Disposition

[21] [23] For the reasons above, the appeal is dismissed.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”