Court of Appeal for Ontario
Date: 2018-03-07 Docket: C61693 Judges: Rouleau, Huscroft and Fairburn JJ.A.
Between
Her Majesty the Queen Respondent
and
John Bygott Appellant
Counsel
Breana Vandebeek, for the appellant David Friesen, for the respondent
Heard and released orally: March 7, 2018
Appeal Information
On appeal from the conviction entered on September 24, 2014 and the sentence imposed on February 11, 2016 by Justice William R. Wolski of the Ontario Court of Justice, sitting without a jury.
Reasons for Decision
Grounds of Appeal
[1] The appellant raises four grounds of appeal. The trial judge erred by:
- amending the information relating to two counts;
- relying on cross-count reasoning;
- refusing his adjournment request; and
- curtailing the cross-examination of a witness.
[2] For the reasons that follow, we would dismiss the appeal.
Background
[3] The appellant was convicted on multiple fraud and uttering forged document counts. The complainants were defrauded of over half a million dollars. Fundamentally, this was a documents case. Each complainant was provided a guarantee that their capital investment was secure through a Bank of Montreal term investment certificate provided to them by the appellant. The trial judge found that these certificates were forged.
[4] The appellant was self-represented at trial.
Ground One: Amendment of the Information
[5] The first issue pertains to the amendment of the information. Counts five and eleven were amended part way through trial to include additional complainants who were also said to have lost funds.
[6] As for count five, Jeff Zelikovitz was originally the named complainant. He testified about the losses he, his mother and son incurred as a result of the fraud. Disclosure of the mother and son's losses, and the use of the same fraudulent certificates in relation to these individuals, was made years ahead of trial. Weeks ahead of trial, the Crown provided the appellant with document briefs, including the documents proving the losses to the mother and son.
[7] Because count five of the information only referred to Jeff Zelikovitz, upon completion of his evidence, the Crown advised that he would seek to amend that count to include specific reference to the mother and son. To alleviate any potential prejudice arising from this amendment, the Crown agreed to recall Jeff Zelikovitz. The appellant then conducted a further cross-examination of Mr. Zelikovitz.
[8] In these circumstances, it was open to the trial judge to conclude that there was no prejudice arising from the amendment. We do not agree with the appellant's submission that the appellant was confused by the amendment and did not know how to respond. Nor do we accept that the mother and son had to testify in order to prove their losses. Deprivation in this case was proven through the documents. Given the disclosure made well in advance of trial and notice having been given by the Crown promptly after Jeff Zelikovitz's testimony, we see no unfairness arising from this amendment.
[9] As for count eleven, the appellant conceded at trial that he was not prejudiced by this amendment. In our view, that concession was entirely appropriate in the circumstances.
[10] This ground of appeal fails.
Ground Two: Cross-Count Reasoning
[11] The second ground of appeal arises from an alleged error by the trial judge in acceding to the Crown's request to apply evidence across all fraud counts. The appellant argues that he was prejudiced by this approach because, as a self-represented person, he did not understand the purport of this evidentiary approach and was not in a position to respond appropriately in conducting his defence. We do not agree.
[12] The Crown advised the court at the outset of trial that he would be asking the court to rely on a cross-count approach. He provided the appellant and the court with the cases he would be relying upon to advance this argument. At the conclusion of trial, over two months later, the Crown advanced the argument and relied upon the authorities he had earlier provided.
[13] Although satisfied that the Crown had proven "each of the counts" on the evidence relating only to that count, the trial judge was also satisfied that a cross-count approach could be taken. In light of the documentary nature of the evidence in this case – the complainants each receiving the same forged certificates – we see no error in the trial judge's cross-count approach. In the circumstances, we see no prejudice to the appellant. He had ample time to prepare for the Crown's argument regarding the application of evidence across counts and he received adequate assistance from the trial judge and the Crown. In any event, the trial judge's findings do not depend on this cross-count approach.
Ground Three: Refusal to Adjourn
[14] The third ground of appeal challenges the refusal to adjourn the trial. Two judges dismissed the appellant's application for an adjournment. The decisions are factually based and sound. Based upon a number of factors, including a long history of adjournments, vacating of dates, and changes in counsel, it was open to the trial judge to conclude that the appellant was trying to avoid a trial. The trial judge also determined that the appellant is an intelligent man, well educated, and capable of representing himself. In the circumstances, it was open to the trial judge to dismiss the appellant's request for an adjournment on the eve of trial. We would not interfere with this decision.
Ground Four: Limiting Cross-Examination
[15] As for the final ground of appeal, limiting the cross-examination, this was a trial management decision that was well within the discretion of the trial judge. We would also dismiss this ground of appeal.
Sentencing Appeal
[16] The appellant also seeks leave to appeal against sentence. This court's decision in R. v. Tinker, 2017 ONCA 552 is dispositive of the issue raised and the appellant concedes that, in light of that decision, the appeal cannot succeed.
Disposition
[17] The conviction and sentence appeals are dismissed.
"Paul Rouleau J.A." "Grant Huscroft J.A." "Fairburn J.A."