COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prins, 2015 ONCA 892

DATE: 20151215

DOCKET: C59696

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Monique Prins

Appellant

Robert B. Carew, for the appellant

Michael Kelly, for the respondent

Heard: December 11, 2015

On appeal from the conviction entered on May 23, 2014 and the sentence imposed on November 25, 2014 by Justice Catherine A. Kehoe of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of fraud and use of a forged document. The allegation was that she used a forged power of attorney to cash Canada Savings Bonds in her sister’s name. The appellant said she herself was the source of the funds for that investment, and that with her sister’s agreement, she put the bonds in her sister N.B.’s name to conceal them from her own husband on the breakdown of her marriage.

[2] N.B. said it was her money, and that she had asked the appellant to make the investments for her. She testified that over the period between 1982 and 1996 she sent a total of $57,000 to the appellant. She also testified that she also sent money to her mother for the appellant. She testified that she put money in investments in the appellant’s daughter’s name in France, and that she asked the appellant to match this amount with a corresponding investment in N.B.’s name.

[3] The relationship between the two sisters fractured when the appellant asked N.B. to pay her rent, after N.B. had been living with her for about two years.

[4] There was some evidence that N.B. gave the appellant and her other siblings money as a gift from time to time. There was no documentation to support the alleged transfers from N.B. to the appellant for investment. The appellant had cashed other Canada Savings Bonds in N.B.’s name, without complaint by N.B., a factor supporting the appellant’s position that the funds really belonged to her.

[5] The confusion surrounding the transfers of money was evident. While N.B. testified that she also sent money to her brother Camille for him to invest on her behalf, Camille testified that the money was a gift to him. He also testified that the appellant gave him money to invest in other Canada Savings Bonds in N.B.’s name.

[6] The conviction must be set aside because of the following errors by the trial judge:

• The trial judge concluded that even if the appellant was the source of the funds, she was guilty of fraud for having cashed the bonds and for depositing the proceeds in her own accounts just because the bonds were in N.B.’s name. To commit fraud is to deprive another person dishonestly of something to which that other person is entitled. If the bonds in reality belonged to the appellant, though in her sister’s name, she could not be guilty of fraud for cashing them and using the funds.

• The appellant testified that she found a power of attorney that she used to cash the bonds amongst her files at home. The power of attorney was dated August 15, 1993. By the time of trial the appellant could not remember the circumstances in which the power of attorney had been signed. The trial judge put the onus on the appellant to establish that the power of attorney was valid. N.B. had signed several powers of attorney in favour of the appellant. The trial judge did not consider that N.B. may have also forgotten signing the document used by the appellant to cash the bonds. She said the appellant had her sign many documents. M.T., another sister shown as a witness to the signature on the power of attorney testified that she signed many documents for the appellant, and that she could not remember precisely what she did or did not sign.

• The trial judge recited verbatim extensive portions of the evidence. She then rejected the appellant’s evidence and, without analysis, accepted the evidence of N.B. As conceded by the Crown, there was no meaningful analysis of N.B.’s evidence and no explanation as to why the many weaknesses in that evidence did not raise a reasonable doubt. This was not a case where rejection of the accused’s evidence on a reasoned basis led to the conclusion that guilt had been established.

[7] These errors, standing alone, justify allowing the appeal and quashing the convictions.

[8] In light of these errors, the appeal was allowed and the convictions were quashed. It is therefore not necessary to consider the other arguments advanced on appeal, such as uneven scrutiny of evidence or the appeal as to sentence.

[9] We leave it to the discretion of the Crown to decide, whether, having regard to the circumstances, a new trial is warranted.

“K.M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”