Court File and Parties

Court of Appeal for Ontario Date: 2021-10-07 Docket: C63960

Between: Her Majesty the Queen, Respondent And: Linda Lawlor, Appellant

Before: Fairburn A.C.J.O., Doherty and Watt JJ.A.

Counsel: Amit Thakore, for the appellant Andrew Hotke, for the respondent

Heard: October 4, 2021 by video conference

On appeal from the conviction entered by Justice B.A. Allen of the Superior Court of Justice on June 30, 2016 and the sentence imposed on June 30, 2017.

Reasons for Decision

[1] After a trial by judge alone, the appellant was convicted of one count of fraud over $5,000. She received a conditional sentence of two years, less a day and was ordered to pay a fine in lieu of forfeiture of $603,437. The appellant was given 20 years to pay the fine and, in default, a three-year penitentiary sentence.

[2] The appellant appeals conviction and, if leave is granted, appeals from the fine in lieu of forfeiture portion of her sentence.

Background

[3] The appellant and a co-accused were charged with several offences relating to transactions involving eight different properties owned by the co-accused’s elderly father. At the conclusion of the preliminary inquiry, the presiding judge indicated the co-accused would be committed for trial with respect to each of the eight properties. The appellant, however, would be committed for trial only in respect of the property on St. Clair Avenue.

[4] The appellant and the co-accused eventually proceeded to trial in the Superior Court on a single-count indictment, alleging fraud over $5,000. The timeframe in the indictment captured all eight transactions, but the indictment contained no particulars and made no reference to any specific property.

[5] The trial proceeded. The Crown led evidence in respect of all eight transactions. No one objected. The co-accused testified. The appellant did not.

[6] It would appear that counsel and the trial judge proceeded on the basis that all of the evidence was admissible against both the appellant and the co-accused, and that the allegation against the appellant encompassed all eight properties.

[7] The case against the appellant on the St. Clair Avenue property was straightforward. She accessed the land titles system using a personal security licence (“PSL”) she had initially obtained while working as a legal assistant in a law firm. The appellant transferred ownership of the St. Clair Avenue property from the co-accused’s elderly father to the co-accused and another person. The co-accused had the same last name as his father. The father had no knowledge of the transfer until years later.

[8] Within about a month of the fraudulent transfer of the property, a mortgage in the amount of about $355,000 was placed on the St. Clair Avenue property. A second mortgage in the amount of about $250,000 was placed on the property a year later. Proceeds from those mortgages went into a corporate bank account controlled by the appellant and two others.

[9] The trial judge was satisfied the appellant knew she had no authority to transfer the St. Clair Avenue property from the true owner to her co-accused and another party. That transfer clearly put the father’s economic interests at risk, resulting in deprivation.

[10] The trial judge was also satisfied the appellant appreciated the consequences to the economic interests of the father brought about by the dishonest transfer of the ownership of the St. Clair Avenue property: see Reasons for Judgment, at paras. 173-79.

The Conviction Appeal

[11] In her reasons for judgment, the trial judge proceeded on the basis that the appellant could be convicted if the Crown proved her fraudulent involvement in any of the transactions. On the evidence, the appellant had some involvement in properties on Harwood Avenue and Ruden Crescent, as well as the St. Clair Avenue property. In reference to 200 Harwood Avenue, the trial judge described the appellant’s involvement as “minimal”. The trial judge indicated the appellant had a more significant connection with the Ruden Crescent property. However, the trial judge expressly indicated her conviction of the appellant rested on the appellant’s involvement with the St. Clair Avenue property and the trial judge’s conclusion that her involvement established her guilt on a charge of fraud over $5,000 beyond a reasonable doubt.

[12] After the trial judge released her reasons convicting the appellant, the appellant, represented by new counsel, sought a mistrial on the basis that the trial judge had misunderstood the nature of the charge against the appellant. Counsel argued that the appellant’s lawyer, the trial judge, and the Crown had mistakenly proceeded on the basis that the appellant could be convicted based on her involvement with any of the properties. In fact, argued the accused on the mistrial motion, while the case against the co-accused related to all properties, the appellant could only be convicted in respect of the St. Clair Avenue property. In advancing this submission, the appellant relied on the terms of the committal for trial.

[13] On the motion for a mistrial, counsel argued that a mistrial was the only appropriate remedy, specifically rejecting the Crown suggestion that the evidence could be reopened to allow the defence to call any evidence it may not have called because of the misunderstanding as to the nature of the charge against the appellant.

[14] The trial judge dismissed the motion for a mistrial.

[15] The appellant renews the arguments that were rejected by the trial judge. She contends the misapprehension of the scope of the evidence led to the admission of evidence that was inadmissible against her. The appellant also submits that the misapprehension of the nature of the charge caused her to lose the right to make properly informed decisions as to the conduct of her defence.

[16] We reject those submissions for three reasons. First, it is clear the conviction rested on the trial judge’s finding in respect of the St. Clair Avenue property. The evidence in respect of that property was overwhelming. The appellant transferred ownership with no authority and within a month found herself in possession of the proceeds of a substantial mortgage placed on the property. No explanation was ever offered.

[17] Not only did the trial judge make it clear that the conviction rested on the evidence relating to the St. Clair Avenue property, she also made it clear the evidence in respect of the other properties could not support a conviction.

[18] Second, the limited evidence of the appellant’s involvement in transactions involving two of the other properties, particularly the Ruden Crescent property, was admissible to show the existence of the relationship between the appellant and the co-accused, specifically in relation to transactions involving the property of the co-accused’s elderly father. There is nothing in the reasons to suggest that the trial judge misused the evidence in respect of the appellant’s involvement in the other properties.

[19] Third, while the appellant submits the misunderstanding as to the nature of the charge deprived her of the right to make certain informed choices, she offers no specifics, either in the affidavit filed on the mistrial application, or in her former trial lawyer’s affidavit in support of that position. The appellant argues that counsel’s advice to her during the trial was “guided by this misunderstanding”. However, the appellant, as is her right, has refused to waive client-solicitor privilege, thereby making it impossible to evaluate the legitimacy of this claim.

[20] The St. Clair Avenue property was clearly the focus of the Crown’s allegation against the appellant. The appellant chose not to testify. We see no basis upon which to conclude that choice may have been different had she understood the allegations in respect of the St. Clair Avenue property were not just the central thrust of the Crown’s case, but were in fact the entirety of the Crown’s case.

[21] We also see no merit in the argument the trial judge failed to allow the defence to reopen the evidence. The defence at trial did not seek to reopen the evidence. To the contrary, the defence indicated reopening the evidence would not assist. Even after the trial judge made her ruling denying the mistrial, she left open the possibility of a defence motion to reopen the evidence. The defence made no such motion.

[22] Finally, nothing has been put before this court to suggest what additional evidence may have been led, had the evidence been reopened, that could possibly have made any difference to the outcome of the charge as it related to the St. Clair Avenue property.

[23] The conviction appeal is dismissed.

The Sentence Appeal

[24] The appellant had control over funds obtained as a result of the fraudulent mortgages placed on the St. Clair Avenue property and deposited into the corporate account. Two other individuals also had signing authority over that account. The charges against both were withdrawn in the Provincial Court.

[25] We reject the submission that the appellant had less than total control over the funds in the account. The fact that others had signing authority does not diminish the appellant’s control over the funds.

[26] The appellant argues that the fine in lieu of forfeiture should have been limited to the amount that could actually be traced into the appellant’s pocket. The quantum of a fine in lieu of forfeiture is not limited to the amount of the benefit actually obtained. Once the sentencing court decides a fine in lieu of forfeiture should be imposed, the amount of the fine is “equal to” the value of the property over which the offender has the requisite control: see R. v. Piccinini, 2015 ONCA 446, at para. 18.

[27] Given the factual finding by the trial judge that the co-accused had no control over the funds generated by the fraudulent mortgages placed on the St. Clair Avenue property, the appellant could not look to the co-accused to pay some part of the fine ordered in lieu of forfeiture: see R. v. Dieckmann, 2017 ONCA 575, at para. 100.

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

“Fairburn A.C.J.O.” “Doherty J.A.” “David Watt J.A.”