COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacLeod, 2020 ONCA 596

DATE: 20200922

DOCKET: C64970

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheryl MacLeod

Appellant

Cheryl MacLeod, acting in person

Amy Ohler, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: September 9, 2020 via videoconference

On appeal from the conviction entered by Justice Braid of the Superior Court of Justice, dated October 30, 2017, and the sentence imposed on April 3, 2018.

REASONS FOR DECISION

[1] The appellant was convicted of a number of counts of fraud over $5000, fraud under $5000, and utter a forged document. She received a three-year custodial sentence. This is an appeal from conviction and sentence.

[2] The appellant owned and directed CTC Payroll Services Inc. (“CTC”). CTC would withdraw funds from its clients’ bank accounts. The funds would be held in trust until such time as they could be paid out to the clients’ employees for wages earned or remitted as payment for, among other things, taxes owing. CTC was to keep a small fee for services rendered.

[3] The trial judge found that the appellant fraudulently withdrew more money from her clients’ accounts than she was authorized to take, failed to perform the services she was supposed to perform, and used a good deal of her clients’ money for her own personal purposes. Indeed, a documentary record demonstrates that the CTC trust account was used to make personal purchases for the appellant. The fraud resulted in actual losses of over $350,000 to the appellant’s clients.

[4] The appellant testified at trial, providing her explanation as to why over-deductions had been made. She also pointed the finger at a past employee, suggesting that the employee was responsible for the missing funds.

[5] In lengthy reasons for judgment, the trial judge explained why she “outright” rejected the appellant’s evidence, concluding that it defied common sense and directly conflicted with the documentary evidence that demonstrated the fraudulent trail. As the trial judge noted, the appellant’s evidence also conflicted with the other viva voce evidence at trial, which evidence the trial judge gave reasons for accepting as credible. These credibility findings are owed deference on appeal.

[6] The appellant argues that the trial judge erred in numerous respects.

[7] First, the appellant maintains that the trial judge applied a stricter standard of scrutiny to her evidence than that of the Crown’s witnesses. We do not agree. The reasons for judgment suggest no imbalance. The trial judge explained all of her credibility findings, most of which rest on a documentary foundation.

[8] Second, the appellant argues that her mode of trial was changed unilaterally by her counsel and that she did not give any instructions in that regard. In particular, during oral submissions, the appellant raised that her trial counsel had changed the mode of trial from a jury to a judge alone trial without any consultation. In the written materials filed on appeal, the appellant also suggests that the she did not know that her counsel would concede committal at the preliminary inquiry, using it instead for discovery purposes.

[9] We have no credible evidence on appeal that supports the claim that, without instructions, the appellant’s trial counsel changed her mode of trial from a jury to a judge alone trial. As for the concession on committal, contained in the extensive fresh evidence record on appeal is the appellant’s trial counsel’s denial that he consented to committal without having first consulted with the appellant. We accept his evidence on this point. He discussed this very issue with the appellant and explained to her the very low threshold for committal. He also explained that there was “no realistic basis to argue against committal.” Having regard to the strength of the Crown’s case, that was an entirely reasonable position and one that we find the appellant was alive to. We accept trial counsel’s evidence in this regard and see no merit to this ground of appeal.

[10] Third, the appellant claims for the first time on appeal that her s. 11(b) Charter rights were infringed. She says that her trial counsel was incompetent in failing to bring an application for a stay of proceedings arising from unreasonable delay. While the total time from charge to the end of trial is above the 30-month ceiling, this case was in the system long before R. v. Jordan, 2016 SCC 27 was released. Accordingly, this was a transitional case.

[11] The record in this case does not support the suggestion of unreasonable delay, especially given the transitional zone within which the case sits. The appellant accepts that a period of time would be calculated as defence delay under Jordan. That amount of time is not clear on the record. In any event, given that this is a transitional case, the lack of a record upon which the allegation of delay rests, the nature of the prosecution and complexities involved, and the lack of any record suggesting prejudice, there is no traction in this ground of appeal.

[12] Fourth, the appellant maintains that there has been improper non-disclosure in this case. We do not give effect to this ground of appeal.

[13] It is true that the trial Crown did not disclose a body of bank records at trial. Those records have now been disclosed on appeal. While the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, a conviction will not be set aside on appeal because of a failure to disclose unless there has been a breach of the right to make full answer and defence. This requires the appellant to demonstrate that there is a reasonable possibility that the non-disclosed information “affected the outcome at trial or the overall fairness of the trial process”: R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 at para. 34. This threshold test has not been met for the following reasons:

(a) the trial Crown disclosed the fact that the records existed well in advance of trial;

(b) the trial Crown made the records available to the defence should they wish to see them;

(c) the defence did see them;

(d) no disclosure application was brought;

(e) the appellant repeatedly told her counsel that she did not need to review those records and discouraged him from doing so; and

(f) the appellant has now been in possession of the records for almost a year and points to nothing in them of an exculpatory nature, nor anything that could have impacted on her defence.

[14] In short, even if the records should have been physically placed in the appellant’s hands prior to trial, there is no reasonable possibility that they would have impacted the outcome of the trial. Nor was the fairness of the proceedings adversely impacted by the Crown proceeding as it did: Dixon, at paras. 34-39; R. v. Pascal, 2020 ONCA 287 at para. 136.

[15] Fifth, the appellant argues that her trial counsel provided ineffective assistance. There is a strong presumption in favour of counsel’s competence. In order to succeed on this ground of appeal, the appellant must show that counsel’s conduct fell outside of the wide range of what constitutes reasonable professional assistance and that it resulted in a miscarriage of justice: R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883 (C.A.) at paras. 69-81; R. v. Stark, 2017 ONCA 148 at paras. 10-15.

[16] Having regard to the entire record in this case, including the fresh evidence on appeal, we see nothing to suggest that counsel fell outside of the range of expected reasonable professional assistance. Moreover, this was a strong Crown case that was proven largely on the back of documentary evidence. It cannot be said that there has been a miscarriage of justice.

[17] The appellant was sentenced to three years in custody. She seeks leave to appeal sentence on the basis that this is a demonstrably unfit sentence. She argues that she should have received a conditional sentence. We do not agree.

[18] The appellant’s fraud involves a serious breach of trust with over $350,000 in actual losses to her clients. The fraud occurred over a long period of time.

[19] The trial judge’s reasons are balanced. She had regard to all aggravating and mitigating factors. We would defer to the trial judge’s determination on sentence: R. v. Friesen, 2020 SCC 9 at paras. 25-29.

[20] While the appellant raises some recent and serious health issues she and her spouse have been experiencing, this is a matter that falls within the responsibility of the custodial authorities.

[21] The appellant also challenges the restitution order on the basis that it is “excessive and futile,” requiring her to pay money that was stolen by her employee. We agree with the respondent that this argument rests on an attempt to relitigate the conviction appeal. Again, the trial judge explained her credibility findings, specifically rejecting the appellant’s evidence on this point. This ground of appeal must also fail.

[22] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed, except to the extent of setting aside the victim fine surcharge.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”