COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhudwarr, 2012 ONCA 422

DATE: 20120619

DOCKET: C53594

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Baljinder Kaur Dhudwarr

Appellant

Jonathan Dawe, for the appellant

Robin Flumerfelt, for the respondent

Heard and released orally: June 12, 2012

On appeal from the conviction entered on January 28, 2011 by Justice Cory A. Gilmore of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of six counts of fraud by Gilmore J. of the Superior Court of Justice on January 28, 2011. She received a 12-month conditional sentence. She appeals against her convictions only.

[2] In January 2008, the appellant’s friend, Paul Sagar, deposited six forged cheques totalling about $160,000 into various bank accounts belonging to the appellant. Almost immediately, the appellant began withdrawing the funds and dispensing them to herself and Sagar. Over four days, the appellant made credit card purchases of luxury items ($7,500), obtained cash advances ($11,600), purchased jewellery ($6,100), and made middle-of-the-night cash withdrawals from Casino Niagara even though she lived in Woodbridge ($23,000).

[3] The appellant contends that the trial judge erred by finding that the appellant was a principal to the fraud offences. She could not be a principal because she had no role in making out or depositing the forged cheques. All she did was give her banking information to Sagar so that he could make the deposits into her accounts.

[4] Although the trial judge does not use the language of principal or party in her reasons, in our view the appellant was clearly a principal on the trial judge’s findings of fact. She provided her bank account information to Sagar knowing that he would deposit forged cheques, accepted the money into her accounts, almost immediately removed a substantial amount of money, and distributed it to herself and Sagar. Taken together, this amounted to an implicit misrepresentation to her banks that the incoming funds were valid, when in fact they were not.

[5] In light of this conclusion, it is not necessary to consider the appellant’s alternative submission, namely, that if the appellant was only a party to the fraud charges, then the trial judge erred in applying a recklessness mens rea.

[6] The appellant contends that the trial judge misapplied the hearsay rule and incorrectly restricted the appellant’s testimony about conversations with her husband and Sagar.

[7] While, in our view, the ruling was in error, as the trial unfolded, the appellant was given an opportunity and in fact testified about these conversations and the trial judge carefully considered the appellant’s testimony about her communications with her husband and, especially, Sagar.

[8] The appellant submits that the trial judge erred in drawing an adverse inference against the defence for not calling her husband or Sagar as witnesses.

[9] Although the trial judge mentioned this fact, it was only one of 14 inferences drawn by the trial judge and there was other overwhelming evidence to support the conclusion reached by the trial judge.

[10] The appeal is dismissed.

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”

“S.E. Pepall J.A.”