Court of Appeal for Ontario

Citation: R. v. Thornton, 2016 ONCA 562 Date: 2016-07-12 Docket: C59038

Before: Rouleau, Hourigan and Pardu JJ.A.

Between:

Her Majesty the Queen Respondent

and

Paul Vincent Thornton Appellant

Counsel: Paul Vincent Thornton, acting in person Louis P. Strezos and Peter Hamm, amicus curaie Eric Siebenmorgen, for the respondent

Heard: July 6, 2016

On appeal from the conviction entered on June 19, 2014 and the sentence imposed on August 21, 2014 by Justice I. André of the Superior Court of Justice.

Endorsement

[1] The appellant was convicted of fraud over $5,000 and was sentenced to five years’ imprisonment and ordered to pay $3,414,699 in restitution.

[2] The background to the conviction is as follows. The appellant was employed at the head office of Loblaws Company Limited (“Loblaws”) from 2001 to 2009. During that period, he oversaw the company’s Preferred Printers and Rebate Program, a program based on services provided by 26 companies. Suppliers in the program normally wrote rebate cheques to “LBL” (Loblaws Brands Limited). However, the appellant directed three of the companies to write cheques to “IBL”, a company that was, unbeknownst to the three companies’ representatives, owned by the appellant.

[3] The appellant deposited rebate cheques into IBL’s bank account totalling $3,948,301.01. After Loblaws discovered a discrepancy in the rebate amounts it had received, it obtained a Norwich Pharmacal order for the appellant’s personal banking records and IBL’s banking records. It later provided the bank records to the police and the appellant was charged with fraud over $5,000.

[4] The appellant argued at trial that his s. 7 Charter rights were violated because Loblaws breached its implied undertaking by obtaining his banking records while pursuing a civil action against him and then handing them over to the police to be used in a criminal proceeding. The trial judge rejected this argument on the basis that the police played no role in initially obtaining the records and had a statutory duty to investigate once they received the criminal complaint. The trial judge also rejected the appellant’s testimony that he was entitled to the money in question as a commission based on a confidential agreement he had with a former vice president of Loblaws.

[5] The appellant appeals his conviction and the restitution order on the following grounds: (1) the trial judge erred by repeatedly intervening in his examination-in-chief, in a manner that prevented him from presenting his case in an orderly way and was tantamount to cross-examination; (2) the trial judge erred in failing to properly consider his motion to exclude the banking records, given that they were admitted in breach of Loblaws’ implied undertaking; and (3) the trial judge erred by failing to take into account the appropriate sentencing principles in awarding restitution in favour of the complainant.

[6] We would not give effect to these arguments.

[7] We do not view the trial judge’s interventions as being disruptive or tantamount to cross-examination. To the contrary, it is clear from the transcript that the trial judge appropriately intervened to clarify confusing testimony and to assist the appellant, who was self-represented at trial.

[8] With respect to the implied undertaking argument, the Crown argues that the rule does not apply in the circumstances and, in any event, if it did, it was spent when the banking records were filed in civil proceedings as part of a Mareva injunction. Assuming, without deciding, that the implied undertaking rule applies to the banking records and that their use by the police and the Crown violated the appellant’s s. 8 Charter rights, we would not have excluded the admission of the documents under the s. 24(2) analysis mandated by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, for the following reasons.

[9] The seriousness of any police misconduct in this case would be very low. They took no positive steps to obtain the bank records; rather they were passive recipients of records that were or were soon to be in the public record in the civil proceedings.

[10] The impact on the appellant’s Charter-protected interests is minimal. While the appellant had an expectation of privacy in relation to the bank records, the police ultimately would have been able to get a warrant or order to obtain them. Moreover, the bank records were merely confirmatory of the cancelled cheques produced to Loblaws by the suppliers who had made cheques payable to IBL.

[11] With respect to the truth-seeking function of the criminal trial process, there is a strong societal interest in an adjudication on the merits. The records are also reliable and objective evidence.

[12] All of the Grant factors militate in favour of admission of the records into evidence. In our view, therefore, the records’ exclusion would bring the administration of justice into disrepute.

[13] We also see no basis to interfere with the restitution ordered to be paid by the appellant. There was no dispute at trial regarding the amount that had been lost. The appellant only took issue with the Crown’s calculation that recovery had been made in the amount of $533,601.81. A dispute as to the exact amount recovered does not operate as a bar to the making of a restitution order because double recovery can be prevented by civil courts requiring a proper accounting of all sums recovered.

[14] For the foregoing reasons, the appeal is dismissed.

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”