DATE: 20040330

DOCKET: C34911

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Howard J. Borenstein,

for the appellant

Respondent

• and -

JEFFREY ANDERSON

Christine Tier,

for the respondent

Appellant

Heard: February 27, 2004

On appeal from the convictions entered by Justice Anne M. Molloy of the Superior Court of Justice on September 8, 1999 and the sentences imposed on November 8, 1999.

CRONK J.A.:

[1] Following a trial before Molloy J., sitting without a jury, the appellant was convicted of the offences of fraud over $5,000 and assault. He was sentenced to five months incarceration on the fraud charge and to sixty days incarceration, concurrent, on the assault charge. He was also ordered to pay restitution in the amount of $6,900. He appeals both the convictions and the sentences.

[2] At the conclusion of oral argument in this proceeding, this court allowed the appellant’s conviction appeal, quashed the convictions, and ordered a new trial, with reasons to follow. These are those reasons.

(1) Introduction

[3] The charges against the appellant arose from his dealings with Esther Quasie, a resident of Montreal, regarding her purchase of a house in Toronto, where the appellant and his family lived.

[4] The appellant’s trial lasted sixteen days. The Crown called only two witnesses at trial in its case-in-chief: Quasie and the involved real estate agent, Amy Salam. The defence called nine witnesses, including the appellant who testified for six days. As well, the Crown called two reply witnesses and the defence called surreply witnesses, including Salam.

[5] Quasie alleged that she provided the appellant with a total of $16,800 to be forwarded to Salam on account of the purchase price for the house. According to Quasie, the appellant remitted only $5,000 and wrongfully retained the balance of Quasie’s funds for his own use without her knowledge or consent. She further claimed that when she attempted to recover her money from the appellant, he provided her with various excuses as to its use and, thereafter, assaulted her and threatened to harm her if she persisted in her demands for the return of her money.

[6] The appellant admitted that he received $16,800 from Quasie but denied owing her any money. He acknowledged introducing Quasie to Salam and assisting her in locating a house to buy in Toronto. He claimed that he advanced a total of $10,000 to Salam on Quasie’s behalf as deposits on two different residential properties that Quasie was interested in potentially purchasing. He maintained that he was owed the balance of the funds on account of expenses incurred by him for Quasie, or on their joint behalf, in respect of a business that he and Quasie agreed to establish. He denied assaulting Quasie and claimed that she assaulted him. Three other defence witnesses corroborated the appellant’s assertion that he had been assaulted by Quasie at various times.

[7] The appellant argued in support of his conviction appeal that the trial judge erred:

(i) by approaching the case as a credibility contest between the Crown’s witnesses and the defence witnesses and by failing to properly apply the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742;

(ii) by concluding, contrary to R. v. Nimchuk (1977), 1977 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), that the defence theory of the case could only be correct if the documentary evidence relied upon by the Crown was fabricated as a result of collusion between the key Crown witnesses;

(iii) by failing to address and resolve numerous incon-sistencies in the Crown’s evidence in her reasons for judgment; and

(iv) by misapprehending evidence critical to the defence and to the determination of the credibility of the Crown’s witnesses.

[8] On his sentence appeal, the appellant argued that a sentence of five months incarceration on the fraud charge was harsh and excessive in the circumstances and exceeded the established range of sentences for similar offences. He maintained that his sentence should be reduced to one requiring no incarceration or, in the alternative, to a conditional sentence.

(2) Additional Facts

(i) Evidence Concerning the Fraud Charge

[9] Quasie met the appellant in 1996 through a church group. They are both members of the Ghanian community. According to the appellant, prior to the incidents giving rise to the charges against him, he and Quasie intended to go into business together. For that purpose, they opened a bank account and registered an import and export business with provincial authorities, and the appellant shipped various goods to Quasie in Montreal.

[10] When Quasie’s son decided to move to Toronto, the appellant advised her to buy a house in that city and introduced her to Salam. Some time later, Quasie travelled to Toronto and inspected a house on Hainford Street. She liked the house, but wanted to reflect on whether to purchase it. After Quasie returned to Montreal, the appellant told her that Salam required a deposit concerning the house. The appellant faxed to Quasie a copy of a cheque for $5,000 that he claimed to have given Salam as a deposit on Quasie’s behalf. Quasie then transferred $5,000 to the appellant and, when he requested further funds for such items as lawyers’ fees and expenses, she provided the appellant with additional funds. Ultimately, Quasie sent a total of $16,800 to the appellant concerning the purchase of the Hainford property.

[11] The appellant and Salam also arranged for Quasie to see a second house on Princeway Drive in Toronto. In March 1997, Quasie purchased this property instead of the Hainford house. When she arrived in Toronto for the closing, she learned that the appellant had given Salam only $5,000.

[12] Quasie was angry and confronted the appellant, who gave her several different and false accounts of what had happened to her money. Quasie then embarked on a relentless campaign to recover her money from the appellant. She contacted a community and church leader, Eric DeBoss, to assist her. DeBoss and Josephine Clement, one of the appellant’s friends, attempted to informally mediate the financial dispute between Quasie and the appellant with a view to obtaining the return of Quasie’s funds. As a result of their efforts, the sum of $1,900 was returned to Quasie. Eventually they withdrew further assistance due to Quasie’s behaviour.

[13] According to the appellant, since Quasie was content with both houses that Salam showed to her, Salam suggested that offers to purchase be submitted on both houses and that Quasie purchase the house in respect of which an offer was accepted. Salam asked for a deposit cheque to accompany each offer, but provided the assurance that she would cash only the cheque relating to the house that Quasie eventually decided to buy. The appellant maintained that he provided Salam with the two deposit cheques, each in the amount of $5,000.

[14] When it was determined that Quasie would purchase the Princeway property, only the deposit for that property was to be used. In addition, the appellant provided Salam with $2,500 cash, for which Salam allegedly refused to provide a receipt, and a $2,500 bank draft. He claimed that the remainder of Quasie’s funds was owed to him for various expenses incurred by him on her behalf, or in relation to their proposed business.

[15] The witnesses’ testimony concerning the alleged fraud was accurately charac-terized by the appellant’s counsel in his factum filed on this appeal in the following fashion:

Virtually all of the witnesses gave evidence that was somewhat contradictory. They all either testified that they signed documents that they did not read, did not know how their fax number or handwriting ended up on documents they denied ever having seen, claimed that signatures on documents were altered, or that they did not know how their signature got on a document or claimed not to have received monies they were later proved to have received. Documents were produced after the appellant began testifying. Important documents apparently sent by fax in 1997 (produced late in the trial by the Crown during the appellant’s evidence) contained a 1999 fax date without explanation. There were numerous drafts of agreements of purchase and sale that had different purchaser’s names on them.

[16] The appellant relied on numerous documents at trial to support his assertions that he acted throughout as Quasie’s agent and that he did not owe her any money. These included several agreements of purchase and sale, a mortgage application and related assessment forms, numerous receipts for expenses allegedly paid by the appellant, and a letter that the appellant said he had forwarded to Quasie detailing paid expenses in the total amount of $7,129. At trial, Quasie denied receiving this letter, although she confirmed that it bore her fax number and her handwriting.

[17] The evidence concerning the agreements of purchase and sale was confusing, unclear and contradictory. One of the draft agreements, for example, identified the appellant as the purchaser of the Princeway property; others listed Quasie as the purchaser. In addition, during the appellant’s trial testimony, the Crown produced additional documents relating to the two houses. These included an alleged agreement that both identified the appellant as the purchaser of the Hainford property and provided for a deposit of $2,500, and a mutual release between the appellant and the vendor of the Hainford property. The appellant denied signing either document, although his signature on both was purportedly witnessed by Salam. One version of this agreement was dated January 3, 1997 but the vendor’s acceptance of it was dated December 14, 1996. A second copy of the same agreement was dated January 2, 1997.

[18] The appellant asserted that various documents relied upon by the Crown were fraudulent.

[19] Salam initially testified for the Crown. She acknowledged receiving a deposit from the appellant in the amount of $5,000 in relation to the Princeway property, but vigorously denied receiving any cash or a subsequent bank draft for $2,500 from the appellant. Subsequently, the defence called Salam as a surreply witness and confronted her with a copy of the negotiated bank draft. She then claimed that she had forgotten about the bank draft, that it related to the Hainford house rather than to the Princeway property, and that the appellant provided the draft to her because he tried unsuccessfully to purchase the Hainford property for his own use.

(ii) Evidence Concerning the Assault Charge

[20] The evidence concerning the alleged assault by the appellant on Quasie was also conflicting.

[21] Quasie testified that she went to the apartment of the appellant’s cousin one evening to see him about her money, but was prevented from entering the apartment. According to Quasie, when the appellant finally came downstairs from the apartment, she followed him and demanded the return of her money. The appellant then allegedly grabbed her, causing her to fall backwards. Thereafter, the appellant began to choke Quasie and threatened to kill her if she demanded money again. The appellant’s wife and others then yelled at the appellant to stop, and separated the appellant from Quasie.

[22] Three witnesses corroborated the appellant’s assertion that Quasie was the aggressor and that she had assaulted him. First, Vivian Anderson, the appellant’s wife, testified that on at least two occasions when she was at DeBoss’ home with the appellant and Quasie discussing Quasie’s demands for money, Quasie was verbally abusive towards the appellant. She said that on the second occasion, she saw Quasie grab the appellant by the neck and waist, tearing his shirt. She did not see the appellant assault Quasie.

[23] Next, DeBoss testified that he met Quasie three times at his home regarding her dispute with the appellant. At the third meeting, when DeBoss, Quasie, the appellant, the appellant’s wife and Clement were present, he followed the appellant and Quasie outside and observed Quasie holding the appellant’s neck with keys or some other object in her hand. She was also holding the appellant’s shirt and waist and the appellant was bleeding. DeBoss intervened and separated them. He said that he did not see the appellant assault Quasie.

[24] Finally, Clement testified that she was present at DeBoss’ house on two occasions when Quasie was there. On the second occasion, she observed the appellant and Quasie leave DeBoss’ house. She saw DeBoss follow them and heard shouting. When the appellant returned to the house, he had scratches on his neck and his shirt buttons were torn.

[25] Clement also claimed that on another occasion she saw Quasie grab the appellant’s shirt, yell at him, and threaten that she would make the appellant beat her up so that he would go to jail. Clement said that she intervened. She also maintained that several days after this incident, Quasie and several men attempted to forcibly enter Clement’s apartment. During this attempt, Quasie made threats and comments about the mafia.

[26] Clement’s daughter, Stella Enos, testified that she was at home with her mother when Quasie and three men attempted to force their way into the home. Enos called the police. A police officer testified that he responded to a call from Enos, who had reported an attempted break-in. By the time he arrived at her home, however, no intruders were present.

3. Analysis

(i) Conviction Appeal

[27] At the conclusion of the evidence phase of the trial on September 8, 1999, the trial judge delivered brief oral reasons for judgment that focused on her decision concerning the fraud charge. Those reasons, in their entirety, read as follows:

Mr. Anderson [the appellant] has given a version of events which, if I believed, would be a defence to the charges. I do not believe his evidence. I found his evidence to be totally incredible. On the other hand, I found the evidence of Ms. Quasie to be credible. She struck me as a very straightforward and honest witness. That is not to say that there were not some inconsistencies in her evidence and some areas where clearly she was mistaken and it is not to say that I accepted every piece of her evidence or every detail of it.

However, on the whole, I found her to be a truthful and honest witness. Her version of the events with respect to the purchase of the property and the reason she advanced these monies to Mr. Anderson I find to be true.

I am not going to give detailed reasons at this point. I may give detailed reasons later, on the date for sentencing. I will, however, indicate, so that counsel know the basis of my decision, that it is essentially a credibility dispute. It comes down to which witness you believe. I do not believe Mr. Anderson. Even examining Mr. Anderson’s evidence and not accepting it all as truth, it still doesn’t cause me to have even a reasonable doubt as to his guilt.

On the whole, I am satisfied beyond a reasonable doubt based on all of the evidence I find credible that Mr. Anderson defrauded Ms. Quasie of the funds in question other than the $5,000 which he paid to Ms. Salam as the down payment on Princeway.

I also find that he assaulted Ms. Quasie on August 18th, 1997.

The documentary record is not entirely consistent, but it very substantially corroborates the evidence of Ms. Quasie as well as the evidence of Ms. Salam.

Ms. Salam was at times a combative witness, and I understand somewhat, I suppose, where she is coming from given the kinds of suggestions that were being made about her integrity. Her evidence had some inconsistencies in it and she tended to respond before really thinking through what the correct answer might be. On the whole, however, I felt that the difficulties with her evidence were not due to dishonesty but by a failure to remember all of the details of the transaction. I think that is perfectly understandable given the fact that she does hundreds of these transactions and some time has passed.

The theory of the Crown and the evidence of Ms. Quasie are corroborated by the documents. By way of contrast, the theory of the defence flies in the face of the documents and can only be correct if the documents were fabricated as a result of some collusion between Ms. Salam and Ms. Quasie, which I find to be, frankly, a preposterous suggestion. I don’t believe that for a moment [emphasis added].

[28] The trial judge also provided brief supplementary reasons on November 8, 1999, the date of the appellant’s sentence hearing. Those reasons focused on the trial judge’s decision concerning the assault charge. They read:

We indicated the last day that we were here that after I received a copy of the oral reasons for judgment I might supplement those reasons. Upon reviewing those reasons, I note that I didn’t make really any reference to my reasons for decision on the assault issue the assault charge. I will do so now very briefly. Essentially, my reasoning is the same with respect to the other offence, in that it depends completely on credibility. I found Ms. Quasie’s evidence to be credible. I did not find Mr. Anderson’s evidence to be credible. And further, I had concerns about the credibility of the two witnesses who supported his version of events. In particular was it Josaphine Surwa? Is it Surwa? Joe. Anyway, Josephine, the friend that was there with them. I found that evidence that she gave on other points was not credible and in fact highly improbable, for example, her evidence with respect to an incident in which she said that Ms. Quasie arrived at her apartment with a number of men and tried to force her way into the apartment. Her version of that incident I found to be exaggerated. Ms. Josephine I can’t remember her last name, I’m sorry is a tiny little person. If in fact three football player sized young men had attempted to force the door with her foot simply in the way, there is simply no chance that she could have resisted them. So, I found her evidence on that point to be quite exaggerated and untrue. I think she embroidered her evidence to support her friend and, on balance, I found the evidence of Ms. Quasie to be more credible. I did not have a reasonable doubt as a result of the evidence put forward by the accused and the two witnesses who supported him [emphasis added].

[29] Later the same day, after hearing submissions from counsel concerning sentence, the trial judge provided detailed reasons for sentence in which she made additional findings of fact concerning the fraud and assault charges against the appellant. In those reasons, the trial judge stated that she regarded the appellant as untrustworthy. She also agreed with a police witness’ description of the appellant’s character as “that of a con man or a fraud man whose wheeling and dealing is ‘mind boggling’ ”.

[30] I conclude that the trial judge’s reasons in support of the fraud and assault convictions, read together, disclose several errors.

[31] In her September 8, 1999 reasons, the trial judge commenced her analysis of the evidence relating to the fraud charge by comparing the appellant’s credibility with that of Quasie. She did not detail the basis for her conclusion that the appellant’s evidence was not credible; nor did she describe the inconsistencies in Quasie’s evidence, which she acknowledged, or those parts of Quasie’s evidence that she accepted as true. Rather, she said “[I]t is essentially a credibility dispute. It comes down to which witness you believe [emphasis added].” She held that the appellant’s evidence was not worthy of belief and that he defrauded Quasie. Thereafter, she addressed Salam’s testimony, holding that on the whole, the inconsistencies and other difficulties in her evidence were not due to dishonesty but, rather, to faulty memory. She did not describe the inconsistencies in Salam’s evidence, nor did she refer to those parts of her testimony that she accepted.

[32] The trial judge’s supplementary reasons concerning the assault charge reflect the same approach. In her reasons of November 8, 1999, the trial judge said, “Essentially, my reasoning is the same with respect to the other offence, in that it depends on credibility. I found Ms. Quasie’s evidence to be credible. I did not find [the appellant’s] evidence to be credible. And further, I had concerns about the credibility of the two witnesses who supported his version of events [emphasis added].” The trial judge then compared the credibility of Quasie with that of the appellant concerning the alleged assault. She went on to indicate that Clement’s evidence was not credible, that it was “highly improbable” on several matters, and that it was untrue and exaggerated on the issue of the alleged attempt by Quasie and others to forcibly enter Clement’s apartment. In reaching these conclusions, the trial judge said, “[O]n balance, I found the evidence of Ms. Quasie to be more credible [than that of Clement] [emphasis added].”

[33] Thus, in respect of both charges against the appellant, the trial judge identified the central issue in the case as a credibility contest. Contrary to the principles set out in R. v. W.(D.), supra, this approach to the evidence focused on which of the key witnesses was worthy of belief and reflected an “either/or” assessment of the evidence. After the trial judge concluded that she believed the Crown’s witnesses and therefore disbelieved the key defence witnesses, including the appellant, there was little, if any, hope that the defence evidence could be seen as raising a reasonable doubt: see R. v. Ward, [2004] O.J. No. 89 (C.A.); R. v. Chartrand (2002), 2002 6331 (ON CA), 62 O.R. (3d) 514 (C.A.); and R. v. M.J., 2002 49364 (ON CA), [2002] O.J. No. 1211 (C.A.).

[34] Moreover, in connection with the evidence regarding the assault charge, the trial judge completed her determination of credibility without any consideration of the doctrine of reasonable doubt, and without any reference to the Crown’s burden of demonstrating the guilt of the appellant beyond a reasonable doubt. This approach is inconsistent with the principles established by the Supreme Court of Canada in R. v. W.(D.).

[35] R. v. W.(D.) requires that where credibility is important, as in this case, the trial judge must apply the rule of reasonable doubt to that issue and must acquit the accused if the evidence of the accused is believed or if she is left in reasonable doubt by it even if she does not believe the evidence of the accused. The third element of R. v. W.(D.) obliges the trial judge to ask herself, even if she is not left in doubt by the evidence of the accused, whether she is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which she does accept.

[36] In this case, in connection with the fraud charge, the trial judge alluded in her original reasons to the three elements of R. v. W.(D.). First, she held that she did not believe the appellant. Next, she stated that his evidence did not cause her to have a reasonable doubt as to his guilt. Finally, she referred to “all of the evidence that [she found] credible” and stated that based on it, she was satisfied beyond a reasonable doubt that the appellant defrauded Quasie. These statements by the trial judge indicate that she was alive to the requirements of R. v. W.(D.) when she considered the evidence relating to the fraud charge. However, her references to the requisite elements of the R. v. W.(D.) test were conclusory in nature. Neither before nor after those references did the trial judge actually apply the elements of R. v. W.(D.) to the evidence adduced at trial concerning the alleged fraud.

[37] As well, in connection with the assault charge, the trial judge’s reasons contain no indication that she considered or applied R. v. W.(D.) to her assessment of the evidence relevant to that charge. In her supplementary reasons of November 8, 1999, the trial judge stated that she did not have a “reasonable doubt as a result of the evidence put forward by the accused and the two witnesses who supported him [emphasis added]”. This language suggests that the trial judge considered only the defence evidence and that she did not turn her mind to the third element of R. v. W.(D.). In so doing, the trial judge effectively reversed the burden of proof by inquiring only if the defence evidence was sufficient to raise a reasonable doubt.

[38] The trial judge’s reasons concerning the assault charge also suggest that she regarded her task as requiring a choice between the alternatives of accepting the Crown’s evidence or that of the appellant. In fact, in the face of the conflicting evidence, a third alternative was open to the trial judge: to acquit the appellant if a reasonable doubt existed concerning his culpability: see R. v. Nimchuk, supra.

[39] Given the content of the trial judge’s reasons, read as a whole, I am not persuaded that she gave effect to the correct burden of proof in respect of either of the charges against the appellant. On this ground alone, I would allow the conviction appeal.

[40] It is therefore unnecessary to address the other grounds of appeal advanced by the appellant on his conviction appeal. The Crown does not suggest that this is an appropriate case for the application of the proviso contained in s. 686(1)(b)(iii) of the Criminal Code.

(ii) Sentence Appeal

[41] As I have concluded that the conviction appeal must be allowed, it is also unnecessary to consider the issues raised on the appellant’s sentence appeal.

(4) Disposition

[42] For the reasons given, I would allow the conviction appeal, quash the convictions and order a new trial.

RELEASED:

“JCM” “E.A. Cronk J.A.”

“MAR 30 2004” “I agree J.C. MacPherson J.A.”

“I agree J. Simmons J.A.”