R. v. Faulkner, 2010 ONCA 289

CITATION: R. v. Faulkner, 2010 ONCA 289

DATE: 20100420

DOCKET: C48944

COURT OF APPEAL FOR ONTARIO

Weiler, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jane Faulkner

Appellant

Paul Blais, for the appellant

Michael Bernstein, for the respondent

Heard and released orally: April 8, 2010

On appeal from the conviction entered on April 14, 2008 and the sentence imposed on June 12, 2008 by Justice G. Gordon Sedgwick of the Superior Court of Justice, sitting with a jury.

By the Court:

Overview

[1] The appellant was convicted of one count of fraud over $5,000. She was sentenced to fourteen months imprisonment, less four months credit for restrictive bail conditions, and two years probation. She was also ordered to make restitution in the amount of $35,375.

[2] She appeals her conviction and seeks leave to appeal her sentence. In relation to conviction, the appellant’s grounds of appeal concern two pre-trial rulings. The first is whether the trial judge erred in holding that the appellant’s right to trial within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms had not been infringed. The second is whether the trial judge erred in admitting hearsay statements for the truth of their contents from the two complainants who had both died by the time of the trial. In relation to sentence, the appellant submits that the trial judge provided insufficient reasons for giving the appellant only four months credit for bail conditions and that the sentence is harsh and excessive.

Facts

[3] Phillip and Mary Baker were an elderly retired couple living in Kingston. Both had significant health issues that required them to hire a full-time home care provider. Jane Faulkner, a home care provider, was hired by the Bakers to provide these services. For her services, she was paid $15.00/hr and was authorized to withdraw cash in an average weekly amount of $200, plus an additional $200 per month extra. This money was to be given to the Bakers for their care.

[4] The Bakers paid little attention to their banking and financial affairs. As a result, they were unaware that their accounts were being depleted by Ms. Faulkner on a regular, ongoing basis. Between September 1, 2004 and July 26, 2005, Ms. Faulkner defrauded the Bakers of $35,075.50.

[5] Ms. Faulkner was first arrested on August 5, 2005, under an information charging her with fraud under $5,000 and trafficking in a credit card. She was released on bail on August 8, 2005.

[6] The police investigation continued after her arrest. On February 27, 2006, she was charged under a new information, with the more serious indictable offence of fraud over $5,000. The offences charged in the earlier information were both subsumed in the single offence charged in the new information.

Section 11(b) Application

[7] The defence brought an application for an order staying the proceedings under s. 24(1) of the Charter, by reason of an infringement or breach of Ms. Faulkner’s s. 11(b) Charter right to be tried within a reasonable time. The application was heard from March 3 to March 6, 2008.

[8] At the hearing, counsel disagreed as to the date of commencement of the time period to be examined for delay. Defence counsel said the period should start with the date of the initial arrest of Ms. Faulkner, on August 5, 2005. Crown counsel said that the period should start with the date of the new information sworn on February 27, 2006.

[9] The trial judge decided that the time period to be examined for delay should start on August 5, 2005 and end on April 25, 2008; a total period of about 32 months, 19½ months in the Ontario Court of Justice and 12½ months in the Superior Court.

[10] The trial judge examined the length of the delay, the reasons for the delay and prejudice to the accused. He found that taking all the relevant circumstances into account in the case, he was satisfied that the constitutional right of Ms. Faulkner to be tried within a reasonable time had not been infringed and he dismissed her application accordingly.

Admissibility of Hearsay Evidence Application

[11] Phillip Baker died on July 30, 2005 and Mary Baker died on December 7, 2005. The Crown’s pre-trial application sought an order to admit, for the truth of their contents, certain oral or written statements they had made to the investigating police officers.

[12] On July 10, 2005, Phillip Baker was interviewed by Constable Anderson at the Baker residence. Constable Anderson had been dispatched because Mr. Baker was concerned about a telephone call he had received from his bank that morning, informing him that purchases had been made which he had not authorized. Mr. Baker had asked Ms. Faulkner about the purchases earlier in the day and she had denied any knowledge of the purchases, but said she was unable to find the VISA card which she said she had last used five days previously. Ms. Faulkner was at the Baker residence during the interview, and although she was not continually present, she moved back and forth between the room where it took place and the kitchen. The interview lasted 30-40 minutes.

[13] On July 13, 2005, Phillip Baker made two statements to Constable Douglas. First, he signed a short written statement in the handwriting of Constable Douglas. Second, he made an oral statement.

[14] On August 26, 2005, Mary Baker gave a video statement to Constable Douglas. The statement was made under oath and she was cautioned. She signed the standard acknowledgment form in respect of these requirements. The trial judge observed that while giving the video statement, Mary Baker presented herself as she was physically, a rather frail and elderly person. He noted that her manner was clam and sincere, that she was responsive to the questions asked and that her answers were clear and forthright. He also noted that there was no evidence that she had any motive to lie. Mary Baker’s son, Matthew, attended the videotaped interview of his mother as a support person. Matthew was neither sworn nor cautioned. He was the source of many interjections during the interview.

[15] For the purpose of their admissibility at trial, the statements were hearsay statements, made out-of-court to a police officer in the normal course of a police investigation, by persons who were not available to testify at trial.

[16] The trial judge considered the admissibility of the statements and found that the statements met the test of relevance and the requirements of necessity and reliability. He held that the probative value of the statements was not outweighed by their prejudicial effect and ordered that the statements were admissible for the truth of their contents at trial.

Trial and sentence

[17] The trial judge announced his decision on the pre-trial applications on March 31, 2008. On April 14, 2008, Ms. Faulkner pleaded not guilty. The Crown read into the record a synopsis of the admissible evidence tendered by the Crown, with the consent of the defence. Ms. Faulkner did not testify and was found guilty as charged. She was sentenced on June 12, 2008.

Issues on Appeal

1) Did the trial judge err in finding that Ms. Faulkner’s rights under s. 11 (b) of Charter were not infringed?

[18] The appellant submits that the thirty-three month delay is prima facie very excessive and infringes Ms. Faulkner’s s. 11(b) rights absent extremely exceptional circumstances explaining the delay which he submits do not exist.

[19] In our opinion, the trial judge did not err in concluding that the appellant’s s. 11(b) Charter rights were not infringed.

[20] The appellant submits that approximately 13 months of delay were as a direct result of Crown conduct, in particular, untimely disclosure.

[21] We disagree. The trial judge held that the banking records, which were the object of the delayed disclosure, were not in the possession of the Crown or the police. The appellant has not been able to show us that the trial judge erred in this regard. The defence did not bring an application for third party disclosure. Instead the defence asked the Crown for these records. Now the defence seeks to attribute the delay involved in obtaining these records to delay on the part of the Crown. In our opinion, the appellant’s allegation of Crown disclosure delays is not borne out.

[22] The trial judge found that additional delay was due to the complicating factors unique to the case. The complainant was an Ontario Court of Justice judge who had been retired for five years. The appellant asked that an out of region judge, who did not have personal knowledge of the complainant, be brought in to conduct the preliminary inquiry and trial. The appellant says that the trial judge was wrong to cite the proposed defence, that Ms. Faulkner had been authorized to use the credit cards in return for sexual favours, as a complicating factor requiring extra time in the case.

[23] The trial judge correctly recognized that these were complicating factors requiring extra time. The trial judge mentioned the proposed defence as an additional reason supporting the appellant’s request.

[24] We would not give effect to the appellant’s submissions nor to the other arguments made in the appellant’s factum but not argued with respect to s. 11(b). This ground of appeal is dismissed.

2) Did the trial judge err in admitting for the truth of their contents the three statements made by Phillip Baker and the videotaped statement of Mary Baker?

[25] The appellant submits that the necessity requirement was not met with respect to Mary Baker’s videotaped statement and that the police should have taken more care to “preserve” her evidence, specifically by having arranged for defence counsel to be present during the statement.

[26] The admissibility of Mary Baker’s videotaped statement was reasonably necessary. In submissions before us the appellant acknowledged that her statement covered a much broader time frame than Phillip Baker’s. Although Mary Baker’s health at the time was frail, her passing was unexpected. The police were under no obligation to invite defence counsel to attend or to participate in the interview.

[27] The appellant says that it is dangerous to rely on Phillip Baker’s statements: none of them were video recorded, only one of the three was signed by him and even the signed statement was not in his handwriting. The appellant also points out that all of Phillip Baker’s statements were taken before Ms. Faulkner was first arrested. In addition, the appellant challenges the reliability of Mary Baker’s videotaped statement based primarily on the presence of her son, Matthew Baker, in the interview room and raises a concern about how much influence Matthew exercised over Mary Baker.

[28] In our opinion, the trial judge did not err in admitting the statements. The defence could have cross-examined Matthew Baker concerning his presence in the interview room but chose not to do so. The reliability of the oral and written statements of Philip Baker and the video statement of Mary Baker is supported by other documents admitted in evidence and detailed by the trial judge at para. 81 of his reasons.

[29] We would not give effect to this ground of appeal and accordingly the appeal as to conviction is dismissed.

3) Did the trial judge err in giving the appellant credit for four of the 35 months spent under house arrest? Was the overall sentence excessive?

[30] The amount of credit was within the discretion of the trial judge and we see no error in principle on his part. In any event, having regard to the aggravating factors including the vulnerability of the victims, the significant breach of trust, and the duration of the fraud, the overall sentence is fit.

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

“K.M. Weiler J.A.”

“Janet Simmons J.A.”

“David Watt J.A.”