Court of Appeal for Ontario

Date: 2024-04-10 Docket: C70759

Miller, Favreau and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Loukianos Meli Appellant

Counsel:

Neil Weinstein, for the appellant Charmaine Wong, for the respondent

Heard: April 3, 2024

On appeal from the conviction entered on February 9, 2022 by Justice David P. Cole of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction on one count of fraud over $5,000. After hearing submissions, we dismissed the appeal with reasons to follow. These are our reasons.

Factual Background and Trial Decision

[2] The central facts are not in dispute. In 2006, the appellant began taking money, in the form of loans, from the complainant, who was his landlady at the time. The trial focused on the time period 2009 to 2019, because documentation from the banks of the complainant and the appellant were still available for that time period. Between 2009 and 2019, the appellant took over $500,000 in loans from the complainant. She was elderly. By 2019 she was in her early 90s. The appellant initially took a loan from the complainant in order to buy equipment for a catering business. However, he ceased operating the business in 2008. He never again had full-time employment, but continued to take money from the complainant until 2019. The appellant never repaid the money. The appellant did not dispute receiving at least $500,000 from the complainant. He repeatedly signed documents acknowledging his indebtedness to her in amounts well in excess of $500,000 and acknowledging his obligation to repay her.

[3] The parties narrowed the trial to one issue – whether the appellant had the intent required for fraud when he took the funds from the complainant. In particular, while the Crown did not argue that the appellant necessarily had fraudulent intent at the time of the first loan in 2006, it argued that by 2009, the appellant was taking funds from the complainant knowing he was unable to repay them and not intending to repay them. The appellant, by contrast, took the position that he always intended to repay the money, but was the victim of misfortune after misfortune that made him unable to repay the money (all while continuing to receive money over a 10-year period).

[4] In light of the narrowing of the issues by the parties, much of the evidence at trial was adduced by way of an agreed statement of facts and financial documents. The complainant testified. The focus of her evidence was the many excuses the appellant made over time for his inability to repay her and his requests for further loans so he could generate the income necessary to repay her. The lead investigating officer testified in order for the Crown to enter various financial information, but was not cross-examined by the defence.

[5] The appellant did not testify. However, his police statement was tendered by the Crown (voluntariness was not contested). The substance of the appellant’s police statement was that he admitted taking in excess of $500,000 from the complainant over 10 years, but said he always intended to repay her. He explained the various misfortunes that he claimed prevented him from doing so. According to the appellant, these included: that he could no longer work due to depression and stress; that the collapse of the banking system in Cyprus prevented him from selling his family’s property there; that he suffered health issues with his bones and his shoulders; and that his girlfriend was suddenly diagnosed with cancer and passed away. The appellant also claimed in his statement to police that the complainant “bullied” him and threatened him, and that she made him borrow her money because of “her greed for the interest.” He admitted to flying to Europe three times and spending $15,000 to $20,000 of her money on himself. He admitted substantial gambling expenses, which he claimed were an attempt to try to reimburse the complainant and to “hide from [his] stress.” He denied that he had ever used the complainant’s money to gamble.

[6] It was common ground at trial and on appeal that because the appellant provided an exculpatory account in his police statement, which formed part of the trial evidence, the principles from R. v. W.(D.), [1991] 1 S.C.R. 742, applied to the assessment of credibility and to whether the Crown had proven fraudulent intent beyond a reasonable doubt: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197 at paras. 105-14.

[7] The trial judge rejected the appellant’s evidence. He found that some time after the appellant began receiving funds from the complainant, he knew he would be unable to repay her but continued to request and receive large sums of money from her. On this basis, the trial judge found that the Crown had proven the intent required for fraud beyond a reasonable doubt.

Analysis

[8] The appellant raised three grounds of appeal, which he argued were to some degree interrelated:

1. The trial judge improperly took judicial notice of a theory of psychology to assess the appellant’s credibility;
2. The trial judge made comments about the appellant’s character in the reasons for judgment that raise a reasonable apprehension of bias; and,
3. The reasons for judgment are insufficient to address the live issues of credibility, reasonable doubt, and mens rea.

[9] The grounds of appeal raised by the appellant allege errors in the trial judge’s assessment of credibility and insufficiencies in his reasons. The jurisprudence recognizes the primary role of trial judges in assessing credibility. Appellate courts should not “finely parse” a trial judge’s reasons in relation to credibility in a line-by-line search for error. It is sometimes difficult for trial judges to precisely articulate the reasons for their credibility findings. What matters is that the reasons, read as a whole and in the context of the evidence and issues at trial, explain what the trial judge decided and why, and are sufficient for appellate review. Of course, if error is apparent in the reasons, an appellate court must intervene (subject to the curative proviso). But an appellate court should not engage in a “technical search for error”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 5 and 68-75; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 24-27 and 30-32; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11-35 and 48-57.

[10] In considering the arguments the appellant raises about the sufficiency of the trial judge’s reasons explaining his credibility findings, it is important to bear in mind the following context. This was a one-issue trial. The one issue was whether the Crown had proven beyond a reasonable doubt that the appellant had the intent required for fraud when he took funds from the complainant. The reasons for judgment were short oral reasons, given the same day that the parties made closing submissions. We have no doubt that the experienced trial judge understood the Crown’s burden of proof and how it applied to issues of credibility. The defence started its submissions by discussing the principles from W.(D.). The application of those principles and the question of what credibility findings the trial judge should make were the focus of closing submissions.

[11] As we explain, although the trial judge’s reasons were brief, when read as a whole and in the context of the one issue in this trial – fraudulent intent – they were sufficient to explain what the trial judge found and why, and to permit appellate review. They disclose no legal error.

[12] We turn now to the specific errors alleged by the appellant.

[13] We reject the appellant’s submission that the trial judge took judicial notice of a psychological concept that was not in evidence in making his credibility findings. The trial judge began his credibility analysis by referring to the psychological concept of “an externalized locus of control”, which he described as a person blaming everything bad that happens to them on somebody else.

[14] It would have been preferable if the trial judge had avoided this reference to psychology, which formed no part of the trial evidence. However, we reject the proposition that the trial judge was taking judicial notice of the truth or nature of a contested concept. It is clear from the context that he was merely using the psychological concept as shorthand for why he found the appellant’s explanation in his police statement to be implausible and rejected it. Immediately after the reference to this concept, the trial judge expanded on the shorthand explanation. The trial judge explained that he found the appellant’s many explanations for why he was prevented from repaying the complainant, as well as his assertion that he always intended to repay her, to be implausible in the face of his taking large sums of money from her over a 10-year period with no ability to repay it.

[15] We also reject the appellant’s argument that the trial judge’s reasons demonstrate a reasonable apprehension of bias. It is important to note that the appellant bases this ground of appeal solely on the reasons for judgment. The appellant accepts that the trial judge conducted himself entirely appropriately and that none of his conduct during the trial or submissions could give rise to a reasonable apprehension of bias.

[16] We do not accept the premise of the appellant’s submission on bias, which is that the trial judge based his rejection of the appellant’s explanation on his character. Rather, the trial judge rejected the appellant’s explanation because of its implausibility in the context of all of the evidence. The trial judge’s credibility findings are strongly worded, but they do not raise a reasonable apprehension of bias.

[17] The appellant’s third argument is that the reasons are insufficient to explain why the trial judge did not believe the appellant’s evidence (in his police statement) and was not left in a reasonable doubt by it. We disagree.

[18] The reasons are clear that the trial judge found the appellant’s evidence implausible and unbelievable in the face of the other evidence. He concluded that it was “absolute nonsense” and “reject[ed]” it. This was clearly a finding that he did not believe and was not left in a reasonable doubt by the appellant’s evidence. The trial judge went on to conclude that “[t]he accused’s behaviour, without a doubt, is reflective of dishonest deprivation”, satisfying the balance of the W.(D.) analysis. His reasons are also clear that he found that the appellant may have intended to repay the initial loans he took, but that over time it turned to fraud by continuing to take money with no intent to repay.

[19] In sum, the trial judge’s reasons make clear that he rejected the appellant’s explanation as not believable and not raising a reasonable doubt on the issue of fraudulent intent because it was implausible in the context of the evidence as a whole. In the absence of the appellant’s explanation being accepted or being found to raise a reasonable doubt, the case against him for fraud was overwhelming. He continued to take over $500,000 from his elderly landlady over a 10-year period, when it was clear that, soon after the initial advances, he had no ability to repay such large amounts. The trial judge’s reasons were sufficient and reveal no error in his application of the burden of proof.

[20] The appeal is dismissed.

“B.W. Miller J.A.” “L. Favreau J.A.” “J. Copeland J.A.”