Court of Appeal for Ontario

Date: June 21, 2017

Docket: C54627, C54738, C55325, C55370

Justices: Doherty, LaForme and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

C54627 – Abena Romain Appellant

and

C54738 – Tasha Spruyt Appellant

and

C55325 – Fitzroy Osbourne Appellant

and

C55370 – Akido Jack Appellant

Counsel:

R. Craig Bottomley and Sherif M. Foda, for the appellant Romain

Nicholas A. Xynnis, for the appellant Spruyt

Mark Halfyard and Breana Vandebeek, for the appellant Osbourne

James C. Fleming, for the appellant Jack

John Corelli and John A. Neander, for the respondent

Heard: June 5 and 6, 2017

On appeal from the convictions entered by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury, on November 18, 2011.

By the Court:

Introduction

[1] The four appellants and others were tried by a jury on a 31-count indictment. The indictment included 14 counts of fraud over $5,000 and 14 corresponding conspiracy charges. Each appellant was charged with some, but not all, of the fraud/conspiracy allegations. In addition, all of the appellants were charged with, and convicted of, a single count of knowingly contributing to an activity of a criminal organization by facilitating the making of fraudulent loans (count 1). The appellants were not charged in two of the fraud counts in the indictment (counts 2 and 25).

[2] The appellants' convictions and acquittals on the various fraud/conspiracy charges can be summarized as follows:

The appellant Jack

• Convicted on 10 charges (5 fraud and 5 related conspiracy charges); and
• Acquitted on 4 charges (2 frauds and 2 related conspiracy charges).

The appellant Osbourne

• Convicted on 4 charges (2 frauds and 2 related conspiracy charges); and
• Acquitted on 4 charges (2 frauds and 2 related conspiracy charges).

The appellant Romain

• Convicted on 4 charges (2 frauds and 2 related conspiracy charges); and
• Acquitted on 2 charges (1 fraud and related conspiracy charge).

The appellant Spruyt

• Convicted on 10 charges (5 frauds and 5 related conspiracy charges); and
• No acquittals.

[3] The appellants appealed their convictions. The appellant, Mr. Jack, also appealed his sentence, however, counsel abandoned that appeal at the outset of his oral argument.

[4] After oral argument, the court advised counsel that the appeals would be dismissed with reasons to follow. These are our reasons.

The Scheme

[5] The fraud and related conspiracy charges involved what was referred to as "an advance fee" scheme. Telemarketers, working from various "boiler room"[1] locations in the Toronto area, spoke with American residents who had responded to advertisements. The telemarketers told the callers that they could borrow money on a short-term basis from various private lenders. The companies represented as lenders did not exist and no loans were ever advanced.

[6] The victims, who had poor credit ratings, were told by the telemarketers that certain advanced payments had to be made before the victims could receive the loans. Some victims made a single advanced payment and some made more than one payment. The amounts of these payments varied. The victims never received any loans.

[7] The Crown alleged that the appellants worked the phones in one or more of the "boiler rooms". They called the potential victims, and working from prepared scripts, made the relevant misrepresentations. If they were successful in convincing the victim to make the payments, they made arrangements for those payments. The victims lost over $1 million in the course of the scheme.

[8] The police investigation began in February 2008, when the police searched a residence after the fire department had responded to a flooded house call. The search revealed many documents apparently connected to an ongoing telemarketing advance fee scheme. The investigation continued to July 24, 2008, when the police conducted simultaneous raids at several "boiler rooms" in the Toronto area. They found many documents connected to the fraudulent scheme in those locations.

[9] The investigation revealed that numerous fictitious companies were used as the supposed lenders in the scheme. The 28 fraud/conspiracy charges involving one or more of the appellants related to 14 of those companies. A single charge of fraud over $5,000 and conspiracy to commit fraud was laid in relation to each.

[10] By the end of the trial, it was common ground that the fraudulent scheme alleged by the Crown existed and that many people had been victimized. The appellants claimed that they were not involved in the fraudulent scheme in any way.

[11] The Crown's case rested on surveillance evidence in respect of two of the appellants, and fingerprint evidence placing the appellants' fingerprints on various documents directly related to the fraudulent scheme. Those documents were found in different "boiler rooms". Ms. Romain was arrested in one of the "boiler rooms".

[12] The appellants who were said to have been identified in the surveillance evidence, argued that the identification evidence was unreliable. All of the appellants argued that although their fingerprints were found on the documents as claimed by the Crown, those fingerprints in and of themselves could not establish beyond a reasonable doubt that the appellants were involved in the fraudulent scheme. Ms. Romain testified. The other appellants did not. Ms. Romain explained that she happened to be in one of the "boiler rooms" when the police arrived, having gone there earlier to purchase marihuana. She smoked the marihuana in the basement and was upstairs making a call on her cell phone when the police arrived. She was unaware of the fraudulent activity going on around her in the "boiler room".

The Appellant Mr. Osbourne's Appeal

Was the appellant, Mr. Osbourne, denied his right to counsel of choice?

[13] Mr. Osbourne was represented by Ms. Abraham throughout the proceedings before trial. Very shortly before the trial was to commence, Ms. Abraham told Mr. Osbourne that she could no longer act for him as she had taken a contract position with the Crown Attorneys' office. On the first day of trial, with jury selection about to begin, the trial judge was told that Ms. Abraham was withdrawing as Mr. Osbourne's counsel because of the supposed conflict of interest. The trial judge was told that Ms. Abraham had made alternate arrangements for Mr. Osbourne's representation. Ms. Abraham was not present.

[14] The trial judge was concerned that Mr. Osbourne be properly represented, that the trial proceed as scheduled, and that the very large jury panel assembled for jury selection not be inconvenienced any more than was necessary. She ordered Ms. Abraham to appear and briefly adjourned the proceeding.

[15] Discussions occurred over the next day or so. We need not detail those discussions. The arrangements for Mr. Osbourne's representation seemed to be in a state of flux. The trial judge made it clear that she would require Ms. Abraham to continue to represent Mr. Osbourne if he so wished. Mr. Osbourne initially indicated he wanted Ms. Abraham to continue as counsel, but in a subsequent dialogue with the trial judge, he indicated that he was no longer content to have her as counsel.

[16] Ultimately, the following exchange occurred. As it is central to this ground of appeal, we set it out in full:

MS. ABRAHAM: I apologize for keeping the court waiting. Mr. Osbourne, perhaps he should come forward. I have made…

THE COURT: Yes.

MS. ABRAHAM: …arrangements for somebody that I know Mr. Osbourne wanted as counsel and that counsel, Mr. Hy Rosenberg. Mr. Rosenberg is willing and able to appear here tomorrow and for his trial. Now Mr. Osbourne, I believe Your Honour would like to hear directly from him how he feels about that.

THE COURT: Yes, Mr. Osbourne, do you – is that satisfactory with you.

MR. OSBOURNE: Yes because I'm familiar with this lawyer.

THE COURT: I just want to make this perfectly clear to you. I'm prepared to make an order today. Well I don't have to make an order today. The fact is that Ms. Abraham is on the record and I'm just prepared to say to her I understand you have difficulties, but you're on the record and you must see this trial through, okay. So that's an option for you Mr. Osbourne. You can carry on with – in this trial with Ms. Abraham as your lawyer. Alternatively, if that doesn't suit you, you can say, well in light of the circumstances here I want an opportunity to get another lawyer and I want an adjournment and so I would then, in all likelihood, grant you that adjournment to do that, or thirdly, if you – if what is being suggested here that Mr. – is it Rosenberg.

MS. ABRAHAM: Yes.

THE COURT: Mr. Rosenberg represent you and come tomorrow and he's able to do that, that's fine too. So those are your options. Do you need some time to think about it?

MR. OSBOURNE: I'm okay with Mr. Rosenberg.

THE COURT: Okay, you're completely satisfied.

MR. OSBOURNE: Yes.

THE COURT: All right, that's good enough for me then. Okay, that's fine, thank you sir. You can sit down.

[17] The trial judge put Mr. Osbourne's options to him fairly and fully. Mr. Osbourne made a clear and unequivocal decision to proceed with Mr. Rosenberg as his counsel. There is no suggestion that Mr. Osbourne was acting under any disability or did not fully understand the situation or the options available to him. The trial judge did not pressure Mr. Osbourne to make a choice. She expressly told him that he did not have to make a decision then and there, but could have some "time to think about it". Mr. Osbourne declined that invitation. Nor does it advance the appellant's argument to point to things the trial judge could have done, but did not do. It is almost inevitable when a trial judge is faced with a situation like this that one can think of something the trial judge could have done that he or she did not do. That is not the standard of review. The issue is whether the trial judge did what had to be done to ensure that Mr. Osbourne could meaningfully exercise his right to counsel of choice. She did.

[18] As the above-quoted passage demonstrates, Mr. Osbourne had his counsel of choice. In his affidavit, filed in this court five years after his conviction, and on the eve of the appeal, Mr. Osbourne declares that he did not have counsel of choice. However, to the extent that the affidavit sheds any light on the matter, it demonstrates that Mr. Osbourne was fully aware of his options at trial, appreciated the pros and cons of each, and made a choice to proceed with Mr. Rosenberg. The choice was a fully informed one, although no doubt, like many choices people make, somewhat dictated by the circumstances. The affidavit offers no support for the claim that Mr. Osbourne was denied his counsel of choice.

[19] There is no allegation that Mr. Osbourne was not properly represented by Mr. Rosenberg, and no suggestion that there were any problems with the client-solicitor relationship during trial. Indeed, Mr. Osbourne was acquitted on four of the nine charges he faced.

[20] In rejecting the claim that Mr. Osbourne was denied his counsel of choice, we have considered his affidavit. For the reasons set out above, it does not advance the appellant's argument on this ground of appeal. In considering Mr. Osbourne's affidavit on this ground of appeal, we should not be taken as rejecting the Crown's argument that the court should not receive the affidavit in light of its very late filing.

[21] The Court of Appeal can admit fresh evidence where it is "in the interests of justice" to do so: Criminal Code s. 683(1). There is a strong argument to be made that the "interests of justice" would not be served by receiving the appellant's affidavit on the eve of the appeal, when no explanation is offered for the total failure to comply with the rules and conventions of this court governing fresh evidence applications in criminal appeals. The negative impact on the proper administration of justice flowing from receiving an affidavit at this stage of the proceeding is properly considered in determining what the "interests of justice" require in a given case. The timing of the filing of the appellant's affidavit, had there been any merit to this argument, may well have forced the court to bifurcate the appeal and further delay the resolution of what is already a five-year old appeal. We would think the court would be reluctant to go down that path without some good explanation for the late filing of the material and some demonstration of real potential merit in the fresh evidence application.

Did the trial judge err in refusing to allow counsel for Mr. Osbourne to file CPIC entries for one Yuri Lionel?

[22] Yuri Lionel was alleged by the Crown to be a central figure in the fraudulent scheme. He was charged, but absconded. There was an outstanding warrant for his arrest at the time of the trial.

[23] At trial, counsel for Mr. Osbourne indicated that Mr. Osbourne intended to testify on his own behalf. Mr. Osbourne intended to testify that he had gone to Mr. Lionel's residence, one of the "boiler rooms", to purchase marihuana from Mr. Lionel and not because he was working in the "boiler room" as part of the fraudulent scheme. Counsel submitted that Mr. Lionel's record as reflected in the CPIC entries was evidence that Mr. Lionel was a drug dealer and would therefore support to Mr. Osbourne's proposed evidence.

[24] The submission focused on two entries in the CPIC record. Mr. Lionel was convicted of possession of a narcotic in 1999, some nine years before the relevant events. He was also charged with trafficking in a narcotic, about the same time. That charge was withdrawn.

[25] The CPIC record was hearsay. The Crown argued that there were various ways the defence could have tendered the criminal record of Mr. Lionel as admissible hearsay, but having chosen not to do so, the evidence was not admissible. The defence submitted that the trial judge had the authority to relax the rules of evidence to assist the defence in proving Mr. Lionel's criminal antecedents.

[26] The Crown's submissions are persuasive, but in our view, this ground of appeal can be disposed of without deciding the merits of those arguments.

[27] The admissibility of the CPIC entries fails for want of relevance. The fact that Mr. Lionel was in possession of marihuana nine years earlier says nothing about whether he was a trafficker in the drug nine years later. The fact that Mr. Lionel was charged with possession of a narcotic for the purpose of trafficking and that the charge was withdrawn, has no evidentiary value. A charge that has been withdrawn permits no inference about Mr. Lionel's involvement in drug dealing at the time of the charge, much less nine years later.

[28] The evidence had no relevance and was properly rejected by the trial judge.

Did the trial judge adequately instruct the jury on the eyewitness evidence as it related to the appellant, Mr. Osbourne?

[29] During their investigation, the police had a "boiler room" located on Whites Road under observation. One of the surveillance officers testified that on July 18, 2008, he saw an individual he identified as Mr. Osbourne leaving that location. The Crown relied on this evidence to connect Mr. Osbourne to a "boiler room" other than the "boiler rooms" in which documents with his fingerprints on them had been found.

[30] The defence vigorously challenged the officer's identification evidence. There were many reasons for the jury to be cautious about the reliability of that evidence.

[31] The trial judge charged the jury in general terms on the dangers inherent in identification evidence. She emphasized the need to be "very cautious" about relying on that evidence. The trial judge reviewed the identification evidence in detail. When outlining the position of Mr. Osbourne, she summarized the various defence arguments supporting the claim that the jury should not rely on the eyewitness identification. Considered in its entirety, the charge was thorough, balanced and legally correct.

[32] There was no objection to the trial judge's instructions. Those instructions were fully vetted with counsel before the trial judge delivered her charge.

[33] On appeal, counsel submits that the jury should have been told that they could consider the eyewitness evidence as capable of supporting the Crown's case only if the jury was "certain" that the officer was identifying the person as Mr. Osbourne and not simply testifying that the person looked like Mr. Osbourne.

[34] The first part of this submission is incorrect in law. The jury did not have to be "certain" about the identification evidence before making findings based on it. Second, the distinction between identifying Mr. Osbourne and testifying that the person resembled Mr. Osbourne arose out of the cross-examination of the officer on notes he made shortly after his observations. In those notes, the officer used the word "resembles" when comparing the appellant's photograph to the person he saw leaving the "boiler room" on Whites Road. The defence relied on this reference to argue that the officer could not really identify the person as Mr. Osbourne, but could only say that he looked like Mr. Osbourne. The trial judge reviewed this part of the evidence in her jury charge.

[35] Whether the officer could actually identify Mr. Osbourne or could only say that the person resembled Mr. Osbourne was one of many evidentiary issues arising from the identification evidence. The officer testified that he identified Mr. Osbourne. The trial judge's thorough review of the evidence would no doubt remind the jury of the relevant parts of the officer's evidence, including his use of the word "resembles" in his notes.

[36] There was an evidentiary basis supporting the argument that the officer could only say that the person resembled Mr. Osbourne. The defence made that argument. The trial judge in her instructions on the relevant law and her review of the relevant evidence was not required to argue the case for the defence. We see no error in her instructions.

Did the trial judge fail to relate the elements of party liability to the evidence implicating Mr. Osbourne?

[37] The trial judge instructed the jury at length on the elements of the relevant offences, the evidence relevant to the various offences, and the positions of the parties. She reviewed a draft of her instructions with counsel and counsel had no objections to the manner in which she put the case to the jury. Arguments made on appeal that effectively resile from a considered position taken at trial on the manner in which an accused's case should be put to the jury should be viewed with skepticism.

[38] The trial judge's instructions must be read as a whole. This charge made it clear to the jury what the Crown had to prove beyond a reasonable doubt before Mr. Osbourne could be convicted on any of the charges. The Crown's case came down to the assertion that Mr. Osbourne was working in one or more of the "boiler rooms" in furtherance of the advance loan scheme with knowledge of the fraudulent nature of the scheme. The defence position came down to the claim that the Crown had failed to prove that he was one of the telemarketers.

[38] Despite the length of the trial, and the bulk of the documentary evidence, this was a simple case. The Crown's theory and the defence position were equally straightforward and easy to understand. We have no doubt that the jury fully understood what the Crown had to prove and the respective positions of the parties. The different verdicts arrived at by the jury on the various fraud/conspiracy counts demonstrate that the jury carefully considered the evidence as it related to the various allegations.

Were Mr. Osbourne's convictions unreasonable?

[40] The law applicable to a claim that convictions are unreasonable is well settled: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. An appellate court must decide whether a reasonable jury, properly instructed, could be satisfied beyond a reasonable doubt that Mr. Osbourne was complicit in the offences for which he was convicted.

[41] The reasonable verdict analysis has two counterbalancing components. An appellate court must engage in a limited re-weighing of the evidence. In doing so, the court looks at the evidence through the lens of judicial experience. However, the court must also recognize the paramount and advantaged position of the jury as fact finder. The appellate court acknowledges that advantage by deferring to the jury's assessment of the evidence if the jury's assessment, that is its verdict, is within the reasonableness range having regard to the totality of the evidence.

[42] The appeal court does not scour the record in search of explanations for, or gaps in, the evidence that are arguably inconsistent with the jury's verdicts. Instead, the appellate court accepts that the jury has performed its function and asks whether the jury's ultimate assessment is a reasonable one. The mere fact that the appeal court, or another reasonable jury, might have reached different verdicts is not determinative of the reasonableness of the verdicts actually reached by the jury.

[43] Bearing in mind both the requirement that the court re-weigh the evidence to a limited extent, and the requirement that the court defer to the jury's assessment, we are satisfied that the convictions clear the reasonableness bar.

[44] The evidence considered as a whole supports the following reasonable inferences:

• Mr. Osbourne was at some time in possession of four documents that were closely tied to the fraudulent scheme. The contents of at least some of those documents made the fraudulent nature of the scheme crystal clear;

• The documents were of a sort that one could not reasonably be expected to have access to if one was not a participant in the fraud;

• Mr. Osbourne was in possession of the documents at two different "boiler rooms";

• Mr. Osbourne's possession of the documents at two different locations occurred many months apart from each other; and

• Mr. Osbourne was seen exiting a third "boiler room" several months after he was in possession of fraud-related documents at one of the other "boiler rooms".

[45] These inferences could reasonably support the convictions entered against Mr. Osbourne. It is also relevant to the reasonableness assessment in this court that Mr. Osbourne did not testify.

[46] Mr. Osbourne was acquitted on two of the fraud charges and the two related conspiracy charges. It is not argued that those acquittals are in any way inconsistent with the convictions such as to cast any doubt on the reasonableness of those convictions.

The Appellant Ms. Spruyt's Appeal

[47] Counsel for Ms. Spruyt advanced five grounds of appeal in his factum. He argued three of them in his oral submissions. We will address those three arguments.

Did the trial judge err in holding that the Crown could cross-examine Ms. Spruyt on her prior convictions for fraud and unlawful use of a credit card?

[48] Trial counsel for Ms. Spruyt brought a "Corbett" application prior to deciding whether Ms. Spruyt would testify. Counsel asked the court to prohibit Crown counsel from cross-examining Ms. Spruyt on her prior convictions. She had been convicted in 2007 of two counts of fraud under $5,000 and one count of unlawfully using a credit card. The charges were laid in 2006. The evidence in this case suggested that the advance fee loan scheme was ongoing no later than the fall of 2007 and continued until the summer of 2008.

[49] The trial judge dismissed the "Corbett" application. Ms. Spruyt did not testify.

[50] In dismissing the application, the trial judge acknowledged the potential prejudice flowing from cross-examination on fraud-related convictions when the accused was facing fraud-related charges. At the same time, she described those prior convictions as "highly probative of her [Ms. Spruyt's] honesty" and important to the jury in assessing Ms. Spruyt's credibility. The trial judge ultimately concluded that the probative value as it related to Ms. Spruyt's credibility "significantly outweighs the danger of prejudice, particularly in light of the fact that the jury will receive a clear direction as to the limited use it can make of the information".

[51] In the usual course, a witness, including an accused, may be cross-examined on a prior criminal record. That cross-examination goes to credibility. The trial judge can prohibit cross-examination on a prior criminal record if the potential prejudice from the cross-examination outweighs any potential probative value.

[52] The trial judge's ruling involves an exercise of her discretion. This court will not interfere with that exercise absent demonstrable misapprehension of material facts, an error in principle, or what can be characterized as an unreasonable exercise of the discretion in all of the circumstances. We see no reversible error in the trial judge's exercise of her discretion. Recent convictions for multiple crimes of dishonesty can be an important consideration in assessing the truthfulness of a witness's testimony. The trial judge did not err in holding that this potentially important evidence should not be kept from the jury should Ms. Spruyt elect to testify.

[53] There is no basis upon which we can interfere with the trial judge's exercise of her discretion.

Did the trial judge fail to relate the elements of party liability to the evidence against Ms. Spruyt?

[54] The same ground of appeal was advanced on behalf of Mr. Osbourne (see supra, at paras. 37-39). We would reject the submission made on behalf of Ms. Spruyt for the same reasons that we rejected Mr. Osbourne's submissions.

Were Ms. Spruyt's convictions unreasonable?

[55] The Crown's case against Ms. Spruyt rested entirely on fingerprint evidence. Thirteen fingerprints belonging to Ms. Spruyt were found on eight documents connected to five of the fictitious companies put forward to the victims as lenders. The documents were seized from two "boiler rooms". Some of the documents were seized by the police in February 2008 at one "boiler room", and others dated after February 2008 were seized in July 2008 at a different "boiler room".

[56] Taking the approach outlined above (at paras. 43-45), and considering the evidence in its totality, we are satisfied that the evidence could support the inferences necessary to find that Ms. Spruyt was involved in the fraudulent scheme over an extended period of time. Her fingerprints permit the inference that she was in possession of documents directly connected to the fraud at different places and at different times. A jury could also reasonably conclude that some, if not all, of these documents were not the kind of documents that a person unconnected to the fraud would have in his or her possession. The verdicts cannot be said to be unreasonable.

The Appellant Ms. Romain's Appeal

Did the trial judge fail to protect Ms. Romain's right to a fair trial?

[57] At trial, after the Crown had completed its examination-in-chief of Detective Lamothe, the lead investigator, counsel for Ms. Romain brought a motion to stay the proceedings on the basis that the Crown had failed to produce to the defence potentially exculpatory evidence in the possession of the police.

[58] As we understand the position at trial, the defence argued that Ms. Romain was speaking on her cell phone when the police entered the "boiler room" at 1990 Whites Road and arrested her. She claimed that the police seized her phone. Ms. Romain maintained that her cell phone records would show that she was speaking to a friend at the time of her arrest. According to the defence, this evidence would contradict the Crown's claim that she was involved in the activities of the "boiler room" when the police arrived.

[59] Defence counsel told the trial judge that he had been led to believe that the cell phone had been seized by the police and that the phone and/or relevant records would be produced by the police. According to trial counsel, it became apparent to him during the trial that the Crown had no intention of producing the cell phone and had in fact lost the phone. This realization precipitated the motion for a stay.

[60] In response, the Crown made three points to the trial judge. First, it had no cell phone records. Second, it had never undertaken to produce any cell phone records. Third, the defence knew, at least since the preliminary inquiry, that it was the evidence of the police that many cell phones had been seized from the Whites Road address and that the police could not say whether Ms. Romain's phone had been seized.

[61] The next day, the police brought 13 cell phones to court. The Crown indicated that all of them had been seized from the 1990 Whites Road address. The phones were available immediately outside of the courtroom. Crown counsel told the trial judge that the police suspected that one of them could belong to Ms. Romain because it was different than the other phones. Crown counsel invited Ms. Romain and her counsel to examine the cell phones and identify Ms. Romain's phone, if it was among those seized.

[62] The trial judge also invited counsel for Ms. Romain to examine the phones, identify his client's phone, and should the police for some reason refuse to produce it, return to court for the appropriate order.

[63] For some reason, defence counsel never responded directly to this simple straightforward suggestion. Instead, he went on at some length about his proposed cross-examination of one of the police officers.

[64] The trial judge ultimately dismissed the stay motion on the basis that the defence had failed to comply with the applicable criminal rules and offered no acceptable explanation for that failure. The trial judge reviewed the history of the matter, stressing that the defence was aware of the Crown position in respect of Ms. Romain's cell phone at least 18 months before trial, but had not brought a motion for production. The trial judge also mentioned that the defence could have brought an application for production of the records from the cell phone service provider, but had not done so.

[65] On appeal, the argument surrounding the "missing" cell phone has shifted shape. There is no longer any suggestion that the police had lost exculpatory evidence. Now, the "fundamental error", according to appellate counsel, is the trial judge's failure to either order production of the cell phone or production of the relevant records from the cell phone.

[66] This argument fails. The police brought all of the seized cell phones to court. Counsel for Ms. Romain had ample opportunity to examine those cell phones, identify Ms. Romain's phone, if it was among them, and seek the appropriate order. It made no sense for the trial judge to make any kind of production order, unless and until it was clear that one of the 13 seized cell phones belonged to Ms. Romain. The easiest and most obvious way to achieve that end was to have counsel and Ms. Romain examine the cell phones. The trial judge invited counsel to do that. There is no evidence that counsel ever looked at the phones, or if he did that any of them belonged to Ms. Romain.

[67] Absent any indication by counsel to the trial judge that one of the phones had some connection to Ms. Romain, we are at a loss to understand how or why the trial judge would make an order directing the production of a cell phone or the cell phone records. In the absence of any indication that one of the cell phones belonged to Ms. Romain, the trial judge's failure to order one or more of the phones produced, or her failure to order the records in relation to one or more of the phones produced, could not possibly have had any negative impact on the fairness of the trial.

[68] The trial judge made no error in dismissing the motion on procedural grounds. The motion as now framed on appeal is also devoid of merit.

Did the trial judge err in failing to instruct the jury on bad character evidence?

[69] Ms. Romain testified that she went to the Whites Road address to purchase marihuana. She smoked marihuana in the basement shortly before the police arrived. Before the police arrived, she had gone upstairs and was sitting on a couch talking on her cell phone. As it turns out, she was surrounded by documents relating to the fraud. She testified that she may have inadvertently touched some of those documents. She claimed to have no idea of the ongoing "boiler room" operation in the upstairs area.

[70] In cross-examination, Ms. Romain was asked about a statement she gave to the police. Crown counsel suggested to her that, in the statement, she acknowledged to the officer that she became aware of what was going on upstairs when she went back up after smoking marihuana. Crown counsel suggested that Ms. Romain indicated to the officer that she was not particularly concerned about it as she had gone to the residence for an illegal purpose in any event. The Crown suggested to her that her attitude in the interview was captured by the phrase "in for a penny in for a pound". Ms. Romain was adamant throughout the cross-examination that she told the officer that she only realized what was going on at Whites Road after he told her.

[71] Counsel were provided with a draft of the trial judge's charge and given a full opportunity to make submissions on its contents. There was no suggestion by anyone that the evidence about marihuana consumption should precipitate an instruction against bad conduct propensity reasoning.

[72] The suggestion that the jury might infer that because Ms. Romain used marihuana, she had a propensity to commit all crimes, including telemarketing fraud, is to say the least farfetched. The argument becomes even less tenable in light of the nature of the cross-examination. Crown counsel's questions did not target Ms. Romain's marihuana use as demonstrating a propensity to commit crimes, but rather the cross-examination sought to highlight what the Crown argued was a patently unbelievable explanation offered by Ms. Romain for her conduct at Whites Road.

[73] Like counsel at trial and the trial judge, we see no risk that the jury improperly used propensity reasoning to infer that because Ms. Romain used marihuana, she was a telemarketing fraudster.

Did the trial judge misdirect the jury that some of the evidence against Ms. Romain was direct evidence?

[74] In her instructions, the trial judge gave the usual explanation to the jury about the difference between direct evidence and circumstantial evidence. She also told the jury:

In a case such as this, where the evidence for the prosecution is substantially circumstantial, an accused person should only be found guilty where you are satisfied that the guilt of an accused person is the only reasonable conclusion to be drawn from the whole of the evidence pertaining to that accused person.

[75] Later, when instructing the jury on the elements of the offence of fraud as it related to Ms. Romain, the trial judge said:

The case against Ms. Romain is not a wholly circumstantial case. There is evidence from which you may find direct participation in the frauds alleged. I am referring to the evidence about where she was and what she was doing when police entered the residence at Whites Road. Crown counsel also relies on circumstantial evidence to prove her knowledge of the existence of a criminal organization and her participation in the conspiracies to commit fraud and the frauds alleged against her.

You should consider all of the evidence about how the advance fee loan operation was conducted, the methods in general and the specifics of the transactions that Ms. Romain is alleged to have been involved in. You should consider the evidence of Detective Lamothe and others about where Ms. Romain was sitting and what she was doing at 1990 Whites Road, Unit 11 on July 24th, 2008 when police entered. Consider the evidence of where the various documents were found in relation to her. Consider all of the evidence of who and what police found. There is an audio/video tape recording of the premises after they entered, Exhibit 35. Consider what is seen and heard on it. [Emphasis added.]

[76] The trial judge went on to refer to other evidence relevant to the case against Ms. Romain, including her fingerprints and her own testimony. After referring to that evidence, she reminded the jury of the ultimate burden on the Crown to prove the essential elements of each offence beyond a reasonable doubt.

[77] Counsel for Ms. Romain focuses on the trial judge's use of the phrase "you may find direct participation in the frauds alleged". He submits that the trial judge wrongly instructed the jury that Ms. Romain's presence in the "boiler room" when it was operating was direct evidence of her participation in the frauds.

[78] It is unclear whether the trial judge's reference to evidence of "direct participation in the frauds" was meant to be a reference to direct evidence as contrasted with circumstantial evidence. Clearly, Ms. Romain's presence in the "boiler room", armed with a phone and surrounded by fraud-related documents, was not direct evidence of her involvement in the fraud. Evidence of her involvement in the fraud could come only from inferences drawn from her presence.

[79] Looking at the charge as a whole, we are satisfied that the jury would understand the phrase "direct participation" to refer to participation in the criminal activity at the time of the police raid and Ms. Romain's arrest. Unlike the other appellants, there was evidence that Ms. Romain was engaged in the fraud at the moment of her arrest. In our view, that is the distinction the trial judge was drawing in the above-quoted passage. The use of the phrase "direct participation", while perhaps unfortunate, would not have misled the jury.

[80] Once again, we note that the trial judge fully vetted this charge with counsel. No objection was taken to the phrase now said to have resulted in reversible error.

[81] It is also significant that the jury acquitted Ms. Romain on some counts. Had they understood that her presence in the "boiler room" on the phone was direct evidence of her participation in the fraud, it is difficult to understand how they would have distinguished among the counts as they did.

Did the trial judge misstate the evidence?

[82] Detective Lamothe testified that when he approached Ms. Romain, she was on the phone. He testified that he did not know what happened to the cell phone she was using. He did not recall reviewing the contents of that cell phone at any time.

[83] Ms. Romain testified that she dropped her phone when the police took her into custody. She thought she dropped it into her purse. She also testified that later that day, the police provided her with her mother's telephone number. According to Ms. Romain, they could only have gotten that number from her cell phone.

[84] The cell phone was said to be significant to the defence because Ms. Romain claimed to be on the phone with a person who could confirm that she was at the Whites Road residence to purchase marihuana.

[85] In the course of reviewing the evidence concerning the cell phone, the trial judge twice told the jury "the evidence from police officers was that the cell phone was not seized".

[86] The trial judge's summary of the police evidence is not quite accurate. They did not testify that the cell phone was not seized, but as summarized above, Detective Lamothe testified that he did not know what happened to the phone. In other words, he did not know whether it was seized or not.

[87] Appellate counsel for Ms. Romain describes the trial judge's misstatement as "an egregious and false jury instruction". Counsel's language is extravagant and unsupported by the record. There was extensive discussion about this part of the jury instruction in the pre-charge conference. Counsel for Ms. Romain was content with the trial judge's language probably because it assisted in his attack on the credibility of the police. On the trial judge's version of the police officer's evidence, counsel could argue that it was simply incredible for the police to suggest that they had not seized Ms. Romain's phone, given the circumstances in which she was arrested. Counsel could argue that the police were lying about not seizing the phone because they did not want to produce the phone and the exculpatory phone records.

[88] Even if trial counsel's acceptance of the trial judge's proposed language was not a calculated tactical decision, we reject this ground of appeal on another basis. The jury was told that the facts were for them and it was their recollection of the evidence that counted. A single factual error in a lengthy jury instruction will seldom, if ever, justify quashing the verdicts returned by a jury. Certainly the relatively minimal difference between a completely accurate instruction – there is no evidence from the police that they seized Ms. Romain's cell phone – and the instruction actually given – the cell phone was not seized by the police – would not warrant interference with the verdicts.

Are Ms. Romain's convictions unreasonable?

[89] The case for the Crown against Ms. Romain consisted of:

• her arrest in the middle of an ongoing "boiler room" operation connected to the fraudulent scheme; and

• her fingerprints on eight of the documents relating to the fraudulent scheme found in that "boiler room". All of the documents were related to the frauds. One was the actual script used to induce victims to make the investments.

[90] In our view, the evidence provided an ample basis upon which a reasonable jury could convict Ms. Romain on the charges on which she was convicted.

[91] Ms. Romain did testify. The trial judge gave a careful and accurate explanation to the jury as to how they should approach her testimony. Clearly, the jury were satisfied that Ms. Romain's testimony, considered in the context of the rest of the evidence, did not leave any doubt as to her involvement in the scheme. We observe that even if the jury believed that Ms. Romain was at the Whites Road "boiler room" to purchase and smoke marihuana, that is not necessarily inconsistent with the Crown's claim that she also worked in the "boiler room" located at the location. The jury could accept, or at least not reject, significant parts of Ms. Romain's evidence and still be satisfied beyond a reasonable doubt that she was a participant in the scheme.

[92] In our view, it cannot be said that Ms. Romain's convictions are unreasonable.

The Appellant Mr. Jack's Appeal

Did the nature of the charges unfairly prejudice the appellant, Mr. Jack?

[93] Counsel for Mr. Jack submits that, in reality, this was a case about many discrete fraudulent transactions involving individual victims, most of whom were defrauded of less than $5,000. He submits that the Crown "artificially" and "deceptively" charged a number of frauds over $5,000 by grouping the charges according to the identity of the fictitious lender, an irrelevant factor, and identifying the victim, not as the individual borrowers, but as the "public". Counsel submits that all of this deception was in aid of creating an offence that would fall within the definition of "serious offence" for the purposes of the criminal organization charge in count 1.

[94] Trial counsel raised no objections to the indictment or the form of the charges at any stage of the trial. Nor did he raise any of the complaints now made by counsel on appeal. At trial, Mr. Jack advanced one defence and one defence only – he was not involved in what he readily acknowledged was a large-scale telemarketing fraud operation.

[95] We do not accept counsel's submissions. The frauds alleged and proved by the Crown fell squarely within the kind of fraudulent scheme that has always been charged as a fraud on the public. The scheme targeted a segment of the public at large, as opposed to specific individuals identified as targets before the scheme was implemented. The scheme's goal was to cheat anyone who answered the ads and called the "boiler rooms". There is nothing deceptive or prejudicial in describing the victims of this fraud as "the public". Indeed, to describe the frauds alleged and proved by the Crown as a number of individual frauds against individual victims would mis-describe the nature of the fraudulent scheme and significantly understate its seriousness.

[96] We also see no difficulty with the Crown particularizing the charges by reference to the various fictitious companies identified as the lenders. It may be that the Crown could have laid a single overarching fraud and conspiracy charge, or that it may have organized the charges in other ways. The approach taken by the Crown, however, potentially made the case more manageable for the jury. We see no basis upon which it could be said that, by laying a separate charge in respect of each fictitious company, the Crown somehow put Mr. Jack in a worse position than he would have been had the Crown laid a single global fraud and conspiracy charge. Mr. Jack had no difficulty pleading to and defending the charges as particularized.

[97] Finally, there is no merit to the submission that it is somehow unfair to convict Mr. Jack of frauds over $5,000 when many individual victims were defrauded of less than $5,000. This argument assumes there was some merit to the submission that the fraud was mis-described as a fraud on the public. There was not. As we are satisfied that Mr. Jack was properly charged with frauds over $5,000 and conspiracies to commit fraud over $5,000, it follows that the submission that the charge in count 1 is somehow contrived must fail.

Did the trial judge err in admitting the Agreed Statement of Facts tendered by all counsel?

[98] At the request of all counsel, including counsel for Mr. Jack, the trial judge admitted a document setting out the outcome of the charges against other persons referred to in the evidence. Five of those individuals had pled guilty to fraud or conspiracy to commit fraud and the charges had been withdrawn against two.

[99] All counsel, including counsel for Mr. Jack, worked to produce the Agreed Statement of Facts. Obviously, counsel did not want the jury wondering about what might have happened to some of the other named conspirators. Each counsel no doubt had specific tactical reasons for the admissions. There is no suggestion that Mr. Jack did not receive effective and competent legal assistance.

[100] The trial judge cautioned the jury against using the convictions of others in determining the guilt of individual appellants. She gave that caution both when the Agreed Statement of Facts was admitted and during her charge. In her charge, she added the caution, "a person who pleads guilty may have had any number of reasons for pleading guilty". The trial judge's instructions adequately cautioned the jury against any misuse of the information provided in the Agreed Statement of Facts.

[101] We do not see how we can hold that the trial judge erred in admitting into evidence an Agreed Statement of Facts, absent some suggestion that by agreeing to those facts counsel did not provide competent representation. For this court to go behind the Agreed Statement of Facts and counsel's tactical decisions, absent a claim of ineffective assistance, would be to severely undermine counsel's independence and the overall credibility of the trial process.

The instruction on potential liability under section 21(2)

[102] The trial judge instructed the jury on the operation of s. 21(2) of the Criminal Code. She told the jury that if an accused had agreed with another or others to commit a fraud under $5,000, and one or more of the people in the agreement committed a fraud over $5,000 in the course of carrying out the agreement, the accused would be guilty of fraud over $5,000 if that accused knew or should have known that one of the other parties to the agreement would commit fraud over $5,000 in the course of pursuing the common objective.

[103] There was no objection to the charge. The instruction assumes that fraud over $5,000 and fraud under $5,000 are discrete offences. The language of s. 380 of the Criminal Code and this court's judgment in R. v. Bernard, [2013] ONCA 371 suggest otherwise. The language used in s. 380 suggests there is one crime – fraud. The amount of the fraud is relevant to jurisdiction (the amount alleged in the charge) and penalty (the amount proved by the Crown).

[104] We need not decide whether fraud over $5,000 and fraud under $5,000 are two distinct crimes. On the evidence, there was no realistic basis upon which a jury could conclude that Mr. Jack had entered into an agreement to defraud the public, but only of an amount less than $5,000. The fraudulent scheme alleged and proved by the Crown was to defraud any member of the public who could be induced through various misrepresentations to pay one or more advance fees. The amount of the fraud contemplated by the agreement was the total amount the fraudsters could eventually induce members of the public to advance to them.

[105] The instruction on s. 21(2) was unnecessary, but not prejudicial.

The trial judge's review of the evidence against Mr. Jack

[106] Counsel for Mr. Jack accepts that the fingerprint evidence incriminating Mr. Jack could reasonably justify his conviction on the counts on which he was found guilty. Counsel also accepts that the trial judge accurately reviewed the fingerprint evidence. Counsel contends, however, that the trial judge erred in leaving other evidence with the jury as potentially confirmatory of the Crown's case against Mr. Jack.

[107] The trial judge left three pieces of evidence with the jury as relevant to their determination of whether the Crown had proved Mr. Jack's guilt. First, the trial judge referred to the evidence that Mr. Jack was seen at the Whites Road "boiler room" on the day the search was executed. Second, she referred to the name "Jack" which appeared on a document relating to the fraud. Mr. Jack's fingerprints were found on other documents relating to the same fictitious lender. Third, the trial judge referred to the evidence that Mr. Jack listed his address on his driver's licence as the same address as Tawnya Neil, one of the alleged co-conspirators.

[108] There was no objection to the trial judge's treatment of the evidence. In her charge, she had given a detailed summary of the purported identification evidence. That summary no doubt brought home to the jury the weakness of the supposed identification evidence. It amounted to little more than evidence that someone looked like Mr. Jack.

[109] The other evidence, the name "Jack" on the document and the residence shown on his driver's licence, had relatively little probative value, although the nickname was connected in the evidence to documentation relating to a victim named Marianne Shipley. Mr. Jack's fingerprints were also found on a document relating to that same victim.

[110] We are not convinced that the trial judge should have withdrawn the impugned evidence from the jury, especially in the absence of any request that she do so. The Crown made only brief reference to the evidence in its submissions. The trial judge's instructions to the jury also made little reference to this evidence. The case for the Crown and the case for the defence were put to the jury, as they should have been, largely on the basis of the fingerprints and the inferences, if any, the jury should draw from those fingerprints. The trial judge's brief reference to other bits of evidence relevant to the case against Mr. Jack gave that evidence the minor role it deserved.

Conclusion

[111] The conviction appeals are dismissed. Mr. Jack's sentence appeal is dismissed as abandoned.

Released: June 21, 2017

Doherty J.A.

H.S. LaForme J.A.

G.T. Trotter J.A.

Footnote

[1] The term "boiler room" refers to a location used by a group of telemarketers to sell various products over the telephone using dishonest and high pressure tactics.