DATE: 20031114

DOCKET: C35232

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ROGER BELLEFEUILLE (Appellant)

BEFORE: WEILER, SHARPE JJ.A. and RIVARD J. (ad hoc)

COUNSEL: Roger Bellefeuille the appellant in person

J. A. Ramsay for the respondent

HEARD: November 5, 2003

RELEASED ORALLY: November 5, 2003

On appeal from the conviction entered by Justice Monique Métivier dated June 23, 2000 and the sentence imposed by Justice Métivier dated October 2, 2000.

E N D O R S E M E N T

Facts

[1] Following a trial with judge and jury, the appellant was convicted of six counts of fraud and one count of theft. He was sentenced to a global sentence of 20 months in jail and ordered to make restitution for a total amount of $164,000. The appellant appeals his conviction, seeks leave to appeal his sentence and if leave is granted appeals his sentence.

[2] The factual background to the appeal is as follows. Between 1986 and 1991, Mr. Bellefeuille was a practicing lawyer in the Town of Alexandria. He had a general practice and was simultaneously involved in an investment scheme involving land development. Most of the complainants in this matter were clients of Mr. Bellefeuille’s law practice.

[1] In January 1991, the Ontario Provincial Police received information from a lawyer who advised there was a possible misappropriation of funds involving Mr. Bellefeuille and a client, Mr. Deguire. The lawyer further advised that a complaint had also been made to the Law Society of Upper Canada. Since the police learned that the matter was being investigated by the Law Society, the information was shelved and not followed up at that time.

[2] In January 1996 the investigation was re-activated. In November of 1996, the Law Society disciplinary proceeding terminated. Mr. Bellefeuille was allowed to resign as a lawyer. The Law Society eventually provided the police with a list of names and addresses of witnesses after they obtained permission from the complainants to do so. Fourteen charges of fraudulent conduct and theft were laid on January 16, 1998. Following a five‑week trial, the appellant was convicted of six of the fraud counts and one count of theft on June 23, 2000 and sentenced on October 2, 2000.

[3] We propose to address the appellant’s arguments in the order in which he argued them before us.

The Motion respecting the appellant’s right to trial within a reasonable time

[4] The appellant submits that the trial judge erred in not concluding that the appellant’s Charter right to trial within a reasonable time was breached particularly having regard to the pre-charge delay. The appellant also complains of institutional delay due to the unavailability of French judges to hear his case. In her ruling on the appellant’s Charter motion, the trial judge considered pre-charge delay and institutional delay. We see no error in principle in her reasons.

[5] The appellant further submits that the trial judge erred in not permitting him to call the evidence of two police officers who testified at the preliminary inquiry on the Charter motion. The trial judge agreed to read the transcript of the evidence of these officers from the preliminary inquiry instead of having them called to repeat their evidence. The trial judge was entitled to take this approach.

Submissions relating to count 10

[6] Mrs. Sydelle Katzer testified that she gave a cheque for $12,000 to Mr. Bellefeuille for money due on a construction project. The Cheque for $12,000 was made payable to Roger Bellefeuille and Remi Poirier in trust and introduced into evidence. The appellant submits that not all of the elements of the offence were made out and that he was entitled to appropriate $4,000 of the money for services rendered. Mrs. Katzer testified that she did not receive the appellant’s account for services allegedly rendered in 1991 until she sued him in 1994 for the return of the money and the trial was about to take place in small claims court. In our opinion the Crown established a prima facie case. The appellant did not testify. The trial judge did not err in letting this count go to the jury and the jury’s verdict is not unreasonable.

[7] The appellant further complains that all of the witnesses that the Crown had indicated it would call were not called. The Crown is not obliged to call all the witnesses it has indicated it would call unless the accused can establish that the Crown had an oblique motive for not calling the particular witnesses. That is not the situation here.

Submissions relating to count 7

[8] The appellant was charged that he did by deceit, falsehood and other fraudulent means defraud Charles MacAuley. The appellant submits that the act of deceit was not made out. The act of deceit put to the jury was that the appellant acquired property from Mr. MacAuley with no intention of paying for it, that he subsequently promised to give the land back or to pay for it and that he did neither. The appellant submits that he paid $20,000 towards the purchase of the land and this constituted proof that he intended to pay for the property. The evidence of this payment was before the jury. It was properly their function to determine the intention of the appellant once this payment had been made. The further submission that the admission of the documents evidencing the transaction into evidence was a violation of the hearsay rule has no merit. The contract of agreement of purchase and sale was signed by the appellant himself as was the promissory note.

Submissions relating to count 14

[9] The appellant submits that the evidence discloses no deceitful act on his part. There was evidence to establish the following. Mr. Savage and the appellant incorporated a company in order that that company might hold land that they had purchased. Mr. Savage bought the appellant’s shares in the company becoming its sole owner. Unbeknownst to Mr. Savage the appellant then sold the shares in the company to Mr. Hope. In addition, Mr. Savage bought a mortgage from the appellant for $45,000, which was registered against a property purchased by the appellant for $31,500. The appellant registered a deed indicating he had purchased the property for $51,000. Mr. Savage relied on the deed to conclude that he had proper security for his mortgage. Thus, it was open to the jury to conclude that the appellant should be convicted on this count.

Global submission

[10] In relation to counts 10, 7 and 14 the appellant also submits that the trial judge’s charge to the jury was unclear and confusing. In our opinion the charge was adequate.

Submissions relating to count 9

[11] The appellant submits that no act of deceit was made out. There was evidence the appellant gave a statement of net worth showing his assets at $1.6 million without disclosing his substantial liabilities in order to obtain a loan. Again, it was open to the jury to convict on this evidence.

[12] The appellant also states that the trial judge did not adequately place before the jury the circumstances surrounding this transaction. We disagree that the trial judge’s charge was inadequate. She did tell them that failing to satisfy a civil debt is not fraud, and borrowing money is not fraud.

Grounds contained in the Notice of Appeal not specifically pursued

[13] The appellant raised other numerous grounds of appeal in his notice of appeal including the trial judge’s charge to the jury on reasonable doubt and fraud. We are of the opinion that the charge was satisfactory and we see no merit in any of the other grounds of appeal that were raised but not specifically addressed in oral argument.

[14] The conviction appeal is dismissed.

Sentence

[15] The appellant submits that the trial judge erred in not imposing a conditional sentence and that the trial judge erred in principle in her assessment of his danger to the community. The trial judge gave full consideration to whether a conditional sentence should be imposed and we are not persuaded that she erred in rejecting the imposition of a conditional sentence. While leave to appeal sentence is granted the appeal as to sentence is dismissed.

[16] In relation to the compensation orders, the appellant states that Mr. Savage took out a final order of foreclosure respecting the land. A compensation order is enforceable as a civil debt and if the debt is sought to be enforced this can be dealt with at that time if appropriate.

[17] The appellant is self represented and has requested time to get his affairs in order. If the appellant does not surrender into custody by 6pm on November 10th, 2003, a bench warrant may issue for his arrest.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A”

“Paul Rivard Ad Hoc”