COURT OF APPEAL FOR ONTARIO

CITATION: R v. Garrick, 2014 ONCA 757

DATE: 20141031

DOCKET: C56875

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Walter Garrick

Appellant

Philip Campbell, for the appellant

Stacey D. Young, for the respondent

Heard and released orally: October 20, 2014

On appeal from the conviction entered by Justice J. David McCombs of the Superior Court of Justice, sitting without a jury, on December 19, 2012, and from the sentence imposed on March 26, 2013.

By the Court:

[1] The appellant appeals his convictions on four counts of fraud over $5,000 following a judge alone trial and seeks leave to appeal the sentence imposed of 12 months imprisonment.

[2] The Crown alleged that the appellant presented himself to five complainants as a wealthy individual with significant connections to persons of influence. The complainants testified that the appellant persuaded them to give him money to invest and that the money was never returned. The appellant testified and denied the allegations, insisted that he was a person of wealth and substance, and accused some of the complainants of lying.

[3] The trial judge rejected the appellant’s evidence and accepted that of four of the five complainants. He acquitted the appellant on one count but convicted on four counts of fraud involving approximately $261,000.

[4] The appellant was given presentence credit of six months, sentenced to 12 months imprisonment, a free standing restitution order for $172,000 was imposed as was a fine in lieu of forfeiture for the same amount.

Issue 1. Dismissal of Charter Application Without a Voir Dire

[5] The appellant’s first ground of appeal relates to a Charter application he brought at the opening of trial. The appellant was self-represented at trial. Although he had not filed materials in compliance with the rules, the trial judge invited him to make both written and oral submissions.

[6] The appellant’s Charter application was based on allegations that the investigating officer had, subsequent to his arrest on the charges before the court, wrongfully arrested the appellant on trumped up charges, subjected the appellant to an illegal strip search, celebrated the fact that the appellant was denied bail, and arranged for the appellant to be placed on a range in a detention center with violent offenders.

[7] On our reading of the record, the trial judge patiently attempted to elicit from the unrepresented appellant the basis for his Charter application and the nature of the remedy he sought. The appellant had difficulty articulating his arguments, but it became clear that he was seeking the exclusion of evidence based on the investigating officer’s alleged misconduct. The appellant was unable to establish any link between the alleged misconduct of the officer and evidence he sought to exclude. For the most part, the appellant focused on evidence obtained from his computer that had been in the possession of one of the complainants. The Crown indicated that it would not be seeking to adduce any of that evidence. On at least two occasions during the exchange with the trial judge, the appellant indicated that he was not asking that the charges be dismissed but merely that certain evidence be excluded.

[8] The trial judge approached the matter from the perspective of R. v. Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347 (C.A.), namely, that a party advancing a Charter application is not entitled to proceed immediately to a voir dire but is required to put forward a factual and legal basis for the relief sought, failing which, the Charter application may be dismissed.

[9] During the oral argument, the appellant adverted to evidence likely to be led by the Crown that he contested. The trial judge pointed out that he would be allowed to challenge that evidence if and when it was led and patiently attempted to focus the appellant on the specific remedy he sought as a result of the alleged Charter breaches.

[10] In his reasons for dismissing the Charter application, the trial judge framed the issue as follows: “[T]he preliminary issue, as I see it, is whether the allegations contained in the materials filed by Mr. Garrick, taken at their highest, would attract the sort of remedies that he is seeking. It is obvious that if I were to conclude the allegations contained in Mr. Garrick’s materials would not attract the sort of remedies he seeks, that there would be no basis for me to conclude that an evidentiary foundation should be established to support these allegations.”

[11] The trial judge concluded that as the Crown had agreed not to lead evidence from the appellant’s computer – the appellant’s central concern - and as the other allegations relating to the alleged misconduct of the investigating officer postdated the time of his arrest, there was no basis shown for entering into what was bound to be a lengthy voir dire as to the police officer’s alleged misconduct.

[12] On appeal the appellant argues that the trial judge erred in failing to conduct the voir dire the appellant requested.

[13] First, it is argued that while the alleged police misconduct postdated the appellant’s arrest, there were certain items of evidence that emerged following the appellant’s arrest that conceivably might have been excluded under section 24(2) had the Charter breaches been established.

[14] Second, it is argued that the trial judge erred by failing to assist the unrepresented appellant by advising him of the possibility of a stay of proceedings as a remedy pursuant to section 24(1).

[15] We are unable to accept those submissions.

[16] We recognize that evidence may be excluded even if there is no direct causal connection with a Charter breach. However, neither the appellant before the trial judge nor counsel before this court has been able to identify a single item of evidence that conceivably could have been excluded by reason of alleged police misconduct.

[17] As for the remedy of a stay, the appellant was explicit in stating that he did not seek that remedy. We accept that as an unrepresented accused, he was entitled to assistance from the trial judge and the trial Crown in formulating his argument. However, it is our view that the prospect of a stay of the charges before the trial court on the basis of the allegations made by the appellant was remote at best.

[18] In our view, the trial judge acted well within the scope of his discretion and duty to ensure that this trial proceeded in an orderly and efficient manner when he dismissed the Charter application without conducting a voir dire. The trial judge carefully and patiently attempted to elicit from the appellant the basis for his complaint and the appellant failed to articulate a tenable legal basis for the relief he was seeking. In these circumstances, the Charter application was properly dismissed on the grounds that the appellant had failed to meet the preliminary threshold contemplated by R. v. Kutynec.

[19] Finally, with respect to this first ground of appeal, we note that at the appellant’s request, the Crown called the police officer in question, and the appellant was permitted to cross-examine him at some length as to his allegations of misconduct. The trial judge found the officer to be entirely credible in his denials and accepted his evidence. We recognize that had a voir dire been permitted, the appellant would have had the opportunity to testify as to his allegations. However, given the trial judge’s assessment of the appellant’s overall credibility, we see no realistic prospect that the result would have been any different had a voir dire been held. Accordingly even if the trial judge had erred in refusing to proceed with the voir dire, we would have dismissed this ground of appeal pursuant to the proviso, s. 686(1)(b)(iii).

Issue 2. Trial Judge’s Treatment of the Evidence of Wilfred Garrick

[20] The second ground of appeal is that the trial judge erred in his treatment of the evidence of Wilfred Garrick, the appellant’s father, who was called as a defence witness at trial. The trial judge, after finding Wilfred Garrick to be an honest man, concluded that his evidence, particularly concerning the appellant’s financial circumstances and business dealings, was vague and unhelpful, that much of what he said was based on what he was told by the appellant, and accordingly that there was nothing in Wilfred Garrick’s evidence that raised a reasonable doubt.

[21] There was no error in the trial judge’s treatment of the evidence of this witness. In areas where the appellant’s evidence might have been corroborated by his father (for example, about his independent means through a trust fund set up by his grandfather or with respect to his investment activities), Wilfred Garrick’s evidence lacked detail (he had no information about the amount of the trust fund), was vague (he said he had seen a cheque for $4 million that his son brought into the country, but could not confirm the source of the monies or anything else about the funds) or was based on hearsay (all of the evidence about his son’s “investments” and dealings with a third party investor came from the appellant).

[22] The trial judge was not required in his reasons to address every aspect of the witness’ evidence. The case against the appellant was strong and based on direct evidence from the complainants. Unlike R. v. Clouthier, 2012 ONCA 76, [2012] O.J. No. 449 (C.A.), this was not a case where the witness’ testimony raised a significant piece of exculpatory evidence that was required to be addressed specifically by the trial judge.

Issue 3. Sentence Appeal

[23] With respect to the sentence, the appellant contends that there were three significant legal errors: (i) in concluding that the appellant was in a position of trust when he committed the offence, and treating this as an aggravating factor; (ii) in stating that large-scale frauds attract substantial custodial terms (even absent breach of trust); and (iii) in failing to apply the totality principle in relation to an earlier conviction for subsequent offences, in respect of which the appellant was sentenced to a 23 months conditional sentence.

[24] We disagree. While this was not a case of abuse of a position of trust based on authority, it was an essential feature of each offence that the appellant cultivated friendships with each victim. The trial judge did not err in treating the exploitation of the relationships between the appellant and the complainants as an aggravating factor.

[25] There was no error in the trial judge’s characterization of the case as a large-scale fraud, in light of the amount of money involved, the number of victims and the duration and sophistication of the schemes. In such cases, general deterrence and denunciation are the primary sentencing considerations and there was no error in the trial judge’s conclusion that such objectives, in this case, would not be served by a conditional sentence.

[26] Finally, we do not agree that the sentence offends the totality principle. It is apparent that the trial judge took into account the 23 month conditional sentence imposed earlier, and gave adequate reasons why a sentence of 12 months in custody was required in the circumstances of this case.

[27] Accordingly, the appeal from conviction is dismissed, leave to appeal sentence is granted but the appeal from sentence is dismissed.

Released: October 31, 2014 (“RJS”)

“Robert J. Sharpe J.A.”

“I agree K. van Rensburg J.A.”

“I agree, G. Pardu J.A.”