DATE: 20051122

DOCKET: C42312

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JENIFER HARRIETHA WOLDEGABRIEL (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

R. Craig Bottomley

for the appellant

John C. Pearson

for the respondent

HEARD & RELEASED ORALLY:

November 15, 2005

On appeal from the conviction entered on March 15, 2004 and the sentence imposed March 30, 2004 by Justice John R. R. Jennings of the Superior Court of Justice, sitting alone.

E N D O R S E M E N T

[1] The appellant, a long time employee of the Bank of Montreal, appeals her conviction for defrauding the Bank of a significant amount of money for which she was sentenced to four years imprisonment and ordered to pay $2,000,000 restitution to the Bank of Montreal. The appellant seeks leave to appeal sentence, but only in respect to the restitution order.

[2] This prosecution arises from what the trial judge, Jennings J., found to be an elaborate scheme by the appellant to defraud her employer. She was employed by the Bank and her responsibility was to order communications equipment. It was not contested at trial that she sent purchase orders on behalf of the Bank to an Ontario company named Twisted Pair Cables Inc. incorporated by members of her family. The Bank received invoices from Twisted Pair Cables purporting to represent the value of goods provided to the Bank. Once the appellant confirmed receipt of the goods, payments were made by the Bank to that company that totalled $1,142,718.12. The appellant testified that her manger agreed that these purchases be made. In his testimony, her manager denied that he had approved these transactions.

[3] It was also not contested at trial that the appellant sent purchase orders on behalf of the Bank to a New Jersey company, Select Technologies Inc., another family owned company. The Bank apparently received invoices from the company purporting to represent the value of goods or services provided to it. Once the appellant confirmed receipt of the goods payments were made by the Bank to Select Technologies Inc. that totalled $803,860 in US funds. The appellant testified that another manager asked her to purchase laptop computers from “one of her suppliers”. This was denied by the manager in his testimony.

[4] The appellant raised two grounds of appeal. The first was that she did not have the authority to carry out the frauds that were alleged. She also submitted that the trial judge’s credibility assessment was flawed.

[5] On all of the evidence the trial judge found that:

• the appellant unilaterally created false purchase orders;

• she sent them to companies owned by her family;

• she falsely confirmed receipt of goods or services from the family owned companies;

• she caused the Bank to pay the companies for goods which were never delivered or services that were never rendered; and

• she received funds back from the companies in return for the role she played in the fraud.

[6] In our view, there was ample evidence to support these findings on which the appellant’s convictions for fraud and related offences were based.

[7] The appellant contended that she could not have committed the offences because authorization was required before the Bank could pay the invoices submitted by the companies. In our view, this cannot constitute a defence when the evidence established that it was the appellant, through her dishonesty, that caused the Bank to make payment of the false invoices submitted by the companies.

[8] The appellant also contended that the trial judge erred in his assessment of the appellant’s credibility. He provided six reasons for rejecting the appellant’s testimony, three of which she submits were based on his misapprehension of the evidence. However, the trial judge went on to say that these six reasons were but some of the reasons on which he based his credibility assessment. While there may be room for concern about one or more of the grounds challenged by the appellant, in our view, having regard to the reasons for judgment as a whole, the trial judge correctly considered and rejected the appellant’s testimony, especially when it was in contradiction with that of her managers, Mr. Trumphour and Mr. Shariff.

[9] As for the sentence appeal, the Crown has conceded the appellant’s position that the trial judge made manifest errors in law in imposing a $2,000,000 restitution order. The Crown submits, as a result of the errors, that the order should be set aside. We agree with the positions of the appellant and the Crown.

[10] Accordingly, the appeal from conviction is dismissed. We would grant leave to appeal sentence and order that the restitution order be struck out.

“S. Borins J.A.”

“R. G. Juriansz J.A.”

“H. S. LaForme J.A.”