Court of Appeal for Ontario

Date: October 31, 2017 Docket: C60248

Judges: Laskin, Feldman and Blair JJ.A.

Between

Her Majesty the Queen Respondent

and

Vincent Travis Balfour Appellant

Counsel

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Heard and Released

Heard and released orally: October 26, 2017

On appeal from the conviction entered on September 5, 2014 by Justice David Salmers of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Mr. Balfour appeals his conviction for fraud. At trial he admitted to dishonest acts. The issue for the trial judge was whether Mr. Balfour had the necessary mens rea. The trial judge concluded that he did.

[2] On appeal, Mr. Balfour makes two main submissions. First, he submits the trial judge erred in treating his evidence about the remuneration scheme as hearsay evidence when the defence led this evidence to show Mr. Balfour's state of mind.

[3] We do not accept this submission. The defence led the evidence about what the two managers said to Mr. Balfour for two purposes: a hearsay purpose to show in fact that the remuneration scheme existed; and, a non-hearsay purpose to show that Mr. Balfour did not have the mens rea for fraud.

[4] Even though the trial judge had concerns that the evidence may have been inadmissible for a hearsay purpose, nonetheless he considered it as it was "essential" to Mr. Balfour's defence. The weight to be given to this evidence was for the trial judge to determine. We therefore decline to give effect to this submission.

[5] Secondly, Mr. Balfour submits the trial judge erred in relying on the Crown's suggestion in cross-examination that if Mr. Balfour wanted to establish that a remuneration scheme existed he should have called the other two managers as witnesses. Mr. Balfour relies on this court's judgment in R. v. John, 2016 ONCA 615, which affirms the fundamental proposition that an accused does not have to prove his innocence. We do not agree with this submission.

[6] In the circumstances of this case, we see no error. One of the managers, Mr. Block, testified and denied the existence of any remuneration scheme. The trial judge was, thus, entitled to note the absence of any evidence affirming the scheme from the other two managers.

[7] As we find no error in the trial judge's reasons it's unnecessary to consider the proviso. The appeal is dismissed.

"John Laskin J.A."

"K. Feldman J.A."

"R.A. Blair J.A."