COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sosnowski, 2014 ONCA 837

DATE: 20141126

DOCKET: C54629

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Les Sosnowski

Appellant

Ian R. Smith and Amy J. Ohler, for the appellant

Matthew Asma, for the respondent

Heard: November 13, 2014

On appeal from the convictions entered on August 15, 2011 and the sentence imposed on October 26, 2011 by Justice Charles D. Anderson of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of six counts of fraud and theft. He was a fuel delivery truck driver. The allegations were that he was delivering fuel to a third party while purporting to deliver to customers of his employer.

[2] The evidence consisted of a number of GPS and Geocoder records regarding the location of the appellant’s delivery truck at certain times, plus other machine-generated delivery slips/invoices, as well as charts prepared from those records, which purported to show that the appellant’s truck was delivering fuel to the third party at times when customers of the employer were being invoiced.

[3] These records were introduced by two witnesses who were employees of the fuel company but who had no expertise regarding the records or the systems that generated them, and no knowledge of the specific impugned events. There was no evidence from the allegedly defrauded customers or from the alleged third party, nor any observations of the appellant at the relevant times.

[4] The appellant appeals on the basis of errors of law, unreasonable verdict and ineffective assistance of counsel, as well as lost evidence on the appeal. In our view, it is unnecessary to deal with the latter two grounds. We would allow the appeal based on errors of law and unreasonable verdict.

[5] There are a number of errors of law that undermine the safety of the verdict. One was that the trial judge failed to explain why potentially exculpatory evidence did not raise a reasonable doubt. This evidence included signed delivery acknowledgements from the customers for deliveries at the relevant times. At page 18 of the reasons, the trial judge stated:

Finally, the accused argues that neither Howard Bus, nor Tackaberry noticed or became aware of the fraud. In the case of Tackaberry, the delivery slips acknowledging the receipt of fuel were, in fact, signed. Again, in my view, this is of little assistance. There is no evidence that the person signing the receipt, in fact, witnessed the delivery. The signature is equally consistent with an office employee trusting that a delivery has, in fact, been made.

[6] We observe that if the signatures were “equally consistent” with guilt and innocence, the trial judge had to explain why they did not raise a reasonable doubt.

[7] Second, when the Crown at trial conceded that exhibit 7 did not, as had been originally suggested, support a particular fraudulent delivery, the trial judge accepted the concession but found that he would have found the matter proved as a continuing event, based on all the evidence, without explaining why the evidence in exhibit 7 did not taint the reliability of all the rest of the similar evidence.

[8] The trial judge also did not advert to many other inconsistencies and discrepancies in the documents tendered, which raised questions about the reliability of the evidence and which he did not address.

[9] Key among those was the failure of the Crown to prove that the GPS and the machine–generated delivery slip system were time synchronized. This was a critical factor on which the Crown’s case for conviction was based. While the trial judge acknowledged that the devices were not checked daily (in fact the evidence was that they were not checked at all during the relevant period), he concluded that the records themselves, without more, provided “confirmation that they were sufficiently in sync, the one with the other to establish their accuracy.” He based that conclusion on the finding, based on statements by the witnesses, that on all but the impugned deliveries, the times corresponded.

[10] However, the witnesses did not testify that they personally checked the records of all the other deliveries. Moreover, the Crown did not tender all the other records, which in fact had been lost by the employer before trial.

[11] Absent direct evidence which could be tested by the appellant of the accuracy and reliability of the records relied on by the Crown to prove the case, the convictions cannot be sustained. The verdicts must be set aside and acquittals entered.

“K. Feldman J.A.”

“J. Simmons J.A.”

“S.E. Pepall J.A.”