COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vidinovski, 2020 ONCA 433

DATE: 20200702

DOCKET: C66569

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Suzana Vidinovski

Appellant

Grzegorz Dorsz, for the appellant

Jerry Brienza, for the respondent

Heard: in writing

On appeal from the convictions entered on June 26, 2018 by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] Following a trial before O’Marra J. sitting with a jury, the appellant was convicted of three charges of fraud over $5,000 and four charges of uttering forged documents. She received a sentence of 18 months custody followed by probation. The appellant appeals the conviction.

[2] The complainant, Linda Sargeant, owned a real estate brokerage, Core Realty Group Inc. In 2011, Ms. Sargeant hired the appellant as a general office worker. The appellant impressed her employer and was soon given increased duties. Before long, the appellant’s duties included many of the financial functions of the office. She managed the Accounting and Trade Record System, created employee paycheques, paid bills, and managed deposits into the company’s various bank accounts.

[3] In October 2014, Ms. Sargeant decided to terminate the appellant. At about the same time, she became suspicious of the appellant’s management of some of her financial duties. After her own investigation, the police became involved and the appellant was charged.

[4] The appellant was convicted of defrauding the business in three ways:

• By generating additional payroll cheques and forging Ms. Sargeant’s signature on them, then depositing the money into two personal accounts;

• By forging letters of direction on the company’s letterhead authorizing the company’s bank to provide her with money orders made out to Metcap Living Management, her landlord; and

• By creating and depositing cheques, again with a forged signature, labelled as ‘petty cash’, but drawn from the general account.

[5] The appellant advances three grounds of appeal.

[6] First, the appellant contends that the trial judge erred by failing to grant a mistrial application made by her trial counsel in response to “extremely inflammatory” comments by the complainant during re-examination.

[7] The impugned comments occurred in this exchange during the re-examination of the complainant:

Q. … Ms. Sargeant, you were asked some questions in cross-examination about whether you had made romantic advances to Ms. Vidinovski and I saw and again now you’re smiling and you smiled when you answered some of those questions and can you just explain why you’re smiling?

A. Well for many reasons, it makes me emotional because it’s very hurtful. I’m in a very loving relationship that I honour. I was nothing but fair to Suzana. And I think that you know everybody has a son, everybody has a daughter, everybody has a friend and I think to pull the gay card for an excuse for very bad invasive behaviour (indiscernible) I don’t publicize my life for people. I think that it’s just a dreadful out for people to do that and you know here we are today, we’re all decent people and we’re in the “me too” environment and I think that things like that being thrown around so frivolously in a courtroom when someone is alleged to have done this type of thing to me is absolutely abhorrent on behalf of a young lawyer that I think should go to the validity of the case and what’s before the courts and people like you versus that sort of attack with someone like me. It is visceral. I have in the – and people can search this on the internet if they want, yeah it’s abhorrent. I set precedence in Canadian law for bad behaviour with a company about poisonous work environment and sexual harassment and I would be the last person to tolerate that in my office. It’s abhorrent.

[8] Shortly after, defence counsel asked the trial judge to instruct the jury about this alleged attack. After the lunch break, defence counsel asked for a mistrial. He said that these comments tainted his client’s defence because the complainant had accused him of using the ‘gay card’. On appeal, the appellant contends that the trial judge erred by not declaring a mistrial.

[9] We do not accept this submission. The trial judge carefully questioned defence counsel and then gave this mid-trial instruction to the jury:

Ladies and gentlemen, before continuing with the witness who was giving evidence earlier there are two instructions I wish to give you concerning matters raised in re-examination by Ms. Sargeant.

The other matter is that Ms. Sargeant commented about defence counsel raising a certain issue that she, with respect to a suggested romantic interest in the accused that she found personally abhorrent. Counsel, as defence counsel, is obligated indeed counsel is duty bound to advance vigorously any defence theory and indeed it is not improper to have done do. In fact it is expected of defence counsel to do so.

[10] In R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, the Supreme Court of Canada said that a mistrial should only be used to prevent a miscarriage of justice and, at para. 75, “the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy.” We see no error in how the trial judge handled the mistrial application in this case.

[11] Second, the appellant submits that the trial judge erred by dismissing her Corbett application to exclude any reference to her previous criminal record: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

[12] The appellant had been previously convicted of fraud offences, but more than 20 years ago. The trial judge decided to allow the jury to know of these previous convictions, but he also provided the jury with a strong caution.

[13] In R. v. R.D., 2019 ONCA 951, at para. 13, this court said that “deference is owed to a trial judge’s determination of a Corbett application. …” We see no reason to interfere with the trial judge’s analysis and conclusion on the Corbett issue in this case.

[14] The defence made the credibility of the complainant a central issue at the trial. As explained by the trial judge in his Corbett ruling:

I consider in the balance as well the nature of the defence advanced in this trial, which has been a concerted attack on the credibility of the complainant, Linda Sargeant, the owner of the realty company alleged to have been defrauded by the applicant. It is alleged that the complainant has fabricated the fraud allegations to prevent the applicant from pursuing a sexual harassment complaint.

[15] In this context, the trial judge was entitled to permit the jury to know about the previous fraud conviction. Importantly, however, the trial judge also reminded the jury that the previous conviction was in 1994, well before the events that gave rise to the current charges. He also emphatically warned the jury that just because the appellant had committed fraud in the past did not mean that she was guilty of committing the same offence now.

[16] Third, the appellant asserts that the trial judge delivered an unbalanced and unfair jury charge.

[17] There is no basis for this claim. The trial judge gave a balanced charge, both quantitatively and qualitatively. In particular, the trial judge highlighted some of the main issues in the appellant’s position, especially difficulties with the complainant’s testimony. The jury charge was balanced and fair. Although the trial judge did not follow the common and desirable practice of reviewing his proposed jury charge with counsel before delivering it, we cannot say that this casts doubt on this conclusion.

[18] The appeal is dismissed.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”