Court of Appeal for Ontario

Date: 20230420 Docket: C70075

Fairburn A.C.J.O., Lauwers and Miller JJ.A.

BETWEEN

His Majesty the King Respondent

and

Lorraine Tait Appellant

Counsel: Leo Adler and Kevin Gray, for the appellant Kevin Rawluk, for the respondent

Heard and released orally: April 17, 2023

On appeal from the conviction entered by Justice B.C. Oldham of the Ontario Court of Justice on September 8, 2021, and from the sentence imposed on December 1, 2021.

Reasons for Decision

[1] The appellant was convicted of theft over $5,000 for stealing about $10,000 from her employer. She received a six-month sentence of imprisonment followed by two years probation.

[2] She appeals from both conviction and sentence. A number of the grounds of appeal can be collectively described as arising from suggestions that the trial judge ignored material evidence, failed to properly consider circumstantial evidence, and applied uneven scrutiny to the evidence.

[3] Respectfully, individually and combined, these grounds of appeal constitute an attempt to reargue the trial. This is not the function of this court. The trial judge squarely grappled with the evidence, considered it in its entirety, and came to findings of fact that were available on the record. She did not displace the burden of proof. We see no error in how she arrived at the verdict.

[4] The appellant’s second ground of appeal relates to a suggestion that there are too many gaps in the trial transcript, which occurred for technical reasons, such that it is insufficient for appellate review and gives rise to a miscarriage of justice. The appellant brings a fresh evidence application in advancing this ground of appeal.

[5] The appellant has failed to establish the high bar for irreparable prejudice. The trial judge clearly had a good grip on the evidence, understood the defence theory, and squarely grappled with it. The appellant points to no material evidence missing from the transcript.

[6] We see no error in the sentencing reasons. The trial judge considered and resolved all relevant factual matters. Nor is the sentence demonstrably unfit. There is no basis to interfere with the trial judge’s exercise of discretion, declining to impose a conditional sentence for this breach of trust involving theft from the appellant’s employer.

[7] Leave to admit fresh evidence is denied. The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”