DATE: 20031219

DOCKET: C38563

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – RENE ST. FORT (Appellant)

BEFORE: WEILER, ROSENBERG and BORINS JJ.A.

COUNSEL: Steven J. Greenberg for the appellant

Kim Crosbie for the respondent

HEARD: December 12, 2003

RELEASED ORALLY: December 12, 2003

On appeal from the conviction entered by Justice Robert G. Bigelow of the Ontario Court of Justice dated January 18, 2002 and the sentence imposed by Justice Bigelow dated July 12, 2002.

E N D O R S E M E N T

[1] Mr. St. Fort, a lawyer working in Ottawa at the time, was charged with Caren Maynard and Shuander Maynard with five counts of conspiracy to commit fraud and three counts of fraud. Both Maynards failed to appear for their trial and warrants are outstanding for their arrest.

[2] There was no real issue that the frauds on the banks as alleged were committed by the co-accused. The issue was whether Mr. St. Fort was a party to the fraud. The appellant submits that the verdict was unreasonable. The trial judge reviewed Mr. St. Fort’s activities. He gave examples of the evidence of the appellant in which he attempted to explain away facts and found the explanations to be improbable.

[1] Having rejected the evidence of the appellant he then went on to consider whether the Crown had proven its case. Because the appellant had been charged with conspiracy to commit fraud, as well as fraud, he first considered whether it was probable that the appellant was a member of the conspiracy. He held that it was more than probable that the appellant was. He then considered whether he needed to apply the Carter exception to the hearsay rule and he concluded that he did not have to do so. He found that the appellant’s own acts and declarations proved him guilty as a party to certain frauds. He was satisfied beyond a reasonable doubt that he had agreed to defraud the banks in the transactions in which he acted as a solicitor. He therefore convicted the appellant on counts 6, 7 & 8. He had a doubt, however, that Mr. St. Fort was a member of the conspiracy. There was ample evidence to support the findings of the trial judge and the verdict was not unreasonable. The appeal as to conviction is dismissed.

[2] With respect to sentence, the appellant submits that he ought to have been given a conditional sentence. In our opinion the trial judge did not err in principle in imposing a custodial sentence and the sentence is fit.

[3] Accordingly, while leave to appeal sentence is granted the appeal as to sentence is dismissed.

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“S. Borins J.A.”