Court of Appeal for Ontario

Date: 2021-03-19 Docket: C68020

Before: Tulloch, Huscroft and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Luanne Taillefer, Appellant

Counsel: Luanne Taillefer, acting in person Andrew Furgiuele, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard by video conference: March 9, 2021

On appeal from the conviction entered on June 13, 2019 and the sentence imposed on January 17, 2020 by Justice John R. McCarthy of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of fraud in excess of $5,000 and sentenced to a term of 18 months’ imprisonment followed by 18 months’ probation. She appeals conviction and seeks leave to appeal sentence.

[2] In her notice of appeal, the appellant appeared to be claiming ineffective assistance of counsel. The appellant did not pursue this claim. At the hearing, duty counsel raised two arguments not in the notice of appeal. He argued that the trial judge’s charge was deficient on several grounds and that the trial judge failed to give a direction on handwriting comparisons suggested by the Crown.

[3] We see no merit in these arguments.

[4] First, it is well established that the adequacy of a charge must be considered in the context of the trial as whole, as Watt J.A. explained in R. v. P.J.B., 2012 ONCA 730 at para. 49 [citations omitted]:

Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness…. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate.

[5] This was a short trial and the evidence was not complex. The question for the jury was, in essence, whether the appellant had permission to spend her father’s money as she did. The parties reviewed the evidence and related it to the charge, and in the context of a short trial the issues would have been clear to the jury. We are satisfied that the jury was adequately equipped to understand its task. This is confirmed by the fact that trial counsel had input into the charge and raised no objection to it.

[6] As to the handwriting, no expert evidence was called concerning the signatures on the cheques that were admitted into evidence. At the pre-charge conference defence counsel requested a specific instruction on the lack of expert evidence. The trial judge determined that the inferences that could be drawn from the signatures were a matter the parties could address in closing argument, but invited defence counsel to listen to the Crown’s closing and request any special instruction if necessary. The trial judge also invited counsel to write something up for him to consider adding to his charge.

[7] Crown counsel acknowledged the lack of expert handwriting evidence in her closing but argued that it was not necessary; the jury could use its common sense in determining whether the cheques were forged and whether it was the appellant who forged them. Defence counsel reminded the jury that there was no expert handwriting evidence and suggested that there might be reasons for differences in a signature other than forgery.

[8] The jury would have understood the need to treat the handwriting issue carefully and was well able to do so. Again, this is confirmed by trial counsel’s decision not to request that anything be added to the charge, despite the trial judge’s invitation, and his decision not to object to the charge.

[9] The appellant sought leave to appeal sentence in her notice of appeal but made no submissions at the hearing of the appeal.

[10] The Crown sought a penitentiary sentence of three years, while the defence suggested a custodial sentence of 12-18 months. The sentencing judge considered the aggravating factors, which were extensive and included breach of the appellant’s fiduciary obligations to her father and the significant impact of breach on her father and brother, as well as her lack of remorse and failure to make restitution. He found few mitigating factors. The sentence he imposed is within the range and reveals no error in principle, nor is it demonstrably unfit.

[11] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”