Court Information

Ontario Court of Justice

Date: November 30, 2016

Court File No.: Gore Bay, Info. # 14-188

Between:

Her Majesty the Queen

— AND —

Melanie Aguonie

Before: Justice A. L. Guay

Heard on: September 26 and October 5, 2016

Reasons for Judgment released on: November 30, 2016

Counsel

C. Kalantzis — counsel for the Crown

J. Weppler — counsel for the accused Melanie Aguonie

GUAY J.:

The Charges

[1] The accused was charged that on March 24, 2014 she did knowingly use a forged document, that being a cheque, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code and with the theft of a cheque which was the property of the Sheguiandah First Nation, of a value not exceeding $5,000 contrary to section 334(b) of the Criminal Code. She pled not guilty to both charges.

Background

[2] The offences which are the subject of the present case arose in circumstances where the financial records of the Sheguiandah First Nation were in disarray. A new administration had come to power at the end of 2013, and the Band was without proper financial administration, at least until the middle of the following year, 2014. In the intervening period if not earlier, the Band's financial records were poorly kept and maintained and there was little security surrounding the production and issuance of cheques for the Band's purposes. While there was in place a system for the production and issuance of cheques, this system was clearly not always used.

[3] There are two cheques which are the subject of these proceedings. These include a cheque made payable to the accused, Melanie Aguonie, in the amount of $4,730 and a further cheque made payable to Nigel Diamond in the amount of $5,200. While there was no evidence that the accused handled or acted upon the cheque payable to Nigel Diamond, her boyfriend, Elizabeth Armstrong, a bank clerk at the local Toronto Dominion Bank where the Band and the accused maintained accounts, gave evidence about the accused attending at the Bank to deposit the cheque payable to her. The two cheques, both manually prepared, were numerically consecutive to each other. Both were allegedly signed by the Chief of the Band, the late Richard Shawanda, and Band Counsellor, Jackie Bowerman.

The Evidence

Jackie Bowerman

[4] Jackie Bowerman testified that while the purported signatures on each cheque looked like hers, they were not hers. She emphatically stated that she had neither seen these cheques at the time they were issued nor had she had someone else prepare them. She was unaware of the existence of any supporting documentation with respect to these cheques such as cheque stubs or invoices.

[5] The court received into evidence for the truth of its contents, a transcript of the prior testimony of the late Richard Shawanda with respect to these cheques given at the trial of the co-accused. This testimony essentially reflected the evidence of Jackie Bowerman with respect to prior knowledge of the two cheques and the lack of supporting documentation with respect to them.

Georgina Thompson

[6] Band Counsellor Georgina Thompson was unable to attend to give evidence at the trial because of serious illness, so the court agreed to receive and use her testimony in the trial of the co-accused, again for the truth of its contents. In her prior testimony, this witness indicated that she had had no knowledge of the cheques and could not find any supporting documentation with respect to them. This was why she asked the Interim Financial Officer, Joseph Sayers, to try and find documentation relating to the cheques.

Shelba Deer

[7] Shelba Deer, who worked as a receptionist-clerk for the Band during this period, testified about the presence of two filing cabinets for the storage of financial records of the Band, including blank cheques and cancelled cheques together with supportive or corroborating materials such as invoices, requisitions and cheque stubs. Ms. Deer spoke about the separate accounting system in the Chief's office for writing and issuing cheques and for keeping track of the financial transactions relating to them. She related how she was not permitted to know what was transpiring with respect to the financial transactions of the Chief and Council, being treated as someone who didn't know what she was doing. She indicated that she had access to blank cheques and she explained how she would prepare cheques 2 to 3 times a week for payroll purposes. The sense I had of this, given the evidence of Joseph Sayers which I accept, was that her preparation of cheques related only to the payment of Band salaries and not to the payment of services rendered to the Band. The accused and others, she stated, had access to the unlocked cabinet containing blank cheques and other supporting records located in the Band's Financial Office. While Chief Richard Shawanda and others denied the existence of a separate system for the issuance and recording of cheques in the Chief's office, I accept the evidence of Shelba Deer in this respect and to the effect that it was Georgina Thompson and Jackie Bowerman who operated that system. Shelba Deer testified that she left her employment in the spring of 2014 out of sheer frustration about how poorly the band's financial affairs were being administered.

Joseph Sayers

[8] The Crown called in evidence Joseph Sayers. He had been employed by the Band first as a Project Development Control Officer in 2013 and 2014 and then as the Band's Interim Financial Officer later in April 2014. Joseph Sayers testified how he had reviewed the Band's financial records, in particular with respect to the two handwritten cheques which are the subject of these proceedings. He testified how he had been asked by Georgina Thompson to do so in late April 2014 and how he had been informed that she was concerned about these cheques given the lack of substantiating documentation with respect to them. Joseph Sayers stated that aside from the two cheques in question, he had only been able to find two other handwritten cheques in the Band's records. In his search, Joseph Sayers had tried to identify the two parties in whose favour the disputed cheques had been drawn. He found the name of the accused, Melanie Aguonie, described as a "Vendor", but he could not find the name of Nigel Diamond. "Vendor", he stated, was the description given to someone providing some kind of services or supplies to the Band. What is interesting in this respect is that when questioned about Melanie Aguonie's possible entitlement to reimbursement of $4,730, Georgina Thompson could not think of any money owed to her by the Band other than her very modest salary of $700 to $800 each payday.

[9] The fact that the matter of the two disputed cheques was brought to Joseph Sayers' attention by Georgina Thompson, in conjunction with the latter's evidence and the evidence of late Chief, Richard Shawanda, leads me to conclude that it is highly unlikely either of these two individuals had much if anything to do with the issuance of those cheques. While there did appear to be financial irregularities which would give rise to serious concerns about how Band money was being spent and tracked, this is not the subject of this trial. I will, therefore, not further comment on it.

Assessment of Evidence

[10] What do we know from the evidence? We know that the accused, Melanie Aguonie, attended at the local branch of the Toronto Dominion Bank in Little Current to deposit a cheque in the amount of $4,730 allegedly issued in her favour by the Sheguiandah First Nation. We also know that she endorsed the cheque for deposit into her account. We know too that the Sheguiandah First Nation's cheques were almost always computer-generated from a system called Acc Pac, very few of those cheques being handwritten. The two disputed cheques, obviously made at the same time, and bearing the same date, this being March 24, 2014, were issued in favour of the accused and Nigel Diamond. Both authorized signing officers, this being late Chief Robert Shawanda and Band Counsellor Jackie Bowerman denied any knowledge of these cheques or supporting material with respect to them or any knowledge about why they had been issued. Both of these parties questioned what appeared to be their signatures on the cheques, in particular Jackie Bowerman. She was at pains to distinguish the purported signatures from her own. We know that whatever may have been happening in the Chief's office, there was no evidence linking the issuance of the cheques to anyone in that office or associated with that office.

[11] We know that there was a total absence of supporting documentation with respect to the cheques and that not much material was discovered after a thorough search by the Band's Interim Financial Officer at the request of Band Counsellor Georgina Thompson.

[12] We know that both cheques were in fairly significant amounts and that they were made out in favour of the accused and her boyfriend, Nigel Diamond. No evidence was presented to show that these large sums of money were either earned or owed to the parties by the First Nation, whose financial representatives were greatly upset when they learned of their issuance. In fact, the evidence of Counsellor Georgina Thompson, the Band Counsellor seemingly most involved with the Band's financial affairs at the time the services of Joseph Sayers were retained, suggests that no one concerned with such matters knew why cheques payable in large amounts had been made to the individuals concerned.

[13] We know from the evidence that the accused's aunt, Allison Aguonie, had acted as the Band's Interim Manager during this period and that she too had access to the Band's blank cheques and other financial material. We know that because she was unable to operate the Band's computerized cheque system, she had occasion to prepare handwritten cheques from time to time. If the accused did not gain access to the disputed cheques through her aunt, then we have Shelba Deer's evidence that the accused had helped file financial documentation in the Band's cabinet where blank cheques were kept.

[14] Upon reflection, I accept the evidence of the late Chief Shawanda and Counsellor Jackie Bowerman that the signatures on the disputed cheques were not theirs and that they had been forged. While the signatures appear similar to the genuine signatures of the same parties on other sample cheques filed in evidence, they do not appear to be genuine.

[15] R. v. Kowlyk, [1988] 2 S.C.R. 59, a 1988 decision of the Supreme Court of Canada, the Court dealt with the issue of whether an inference of theft could be derived from a finding of unexplained possession of property recently stolen. The ratio of this decision seems to be that possession of property recently stolen cannot be used to infer theft on the part of the person possessing stolen property unless "the circumstances of the case establish guilt beyond a reasonable doubt". The cases, the Court stated, "do not stand for the proposition that the fact of recent possession allows a conviction for break, enter and theft where it is 'quite impossible'… to determine whether the accused committed the offense or not". (see para 42 of the decision).

The Charge of Theft

[16] This being the case, I cannot on the evidence in this case find the accused guilty of theft of a cheque belonging to the Sheguiandah First Nation. While the evidence establishes that the cheque made out to the accused was stolen, it having been taken without the permission of those whose property it was, and used by someone without the consent of the Band's legitimate representatives, it is not clear who stole it, who manipulated it and who forged the signatures of the Band's Chief and one of its counsellors having the authority to sign it.

The Charge of Using a Forged Document

[17] The same cannot be said, however, with respect to count 1 of the information, that the accused knowingly used a forged document made out to her as if it were genuine contrary to section 368(1)(a) of the Criminal Code. The evidence establishes that the cheque made out in favour of the accused was made without the consent of Band officials authorized to sign it. Not one person stepped up from the Band or was called by the accused to suggest or establish that the amount of the cheque made out to the accused ($4,730) was money owed to her for services rendered or goods provided by her to the Band; quite the contrary. Designated Band representatives were at a loss to know what claim the accused had to that money made payable to her. While the accused was not obliged to testify in her own defence, she failed to provide, either directly or through a witness or witnesses, evidence establishing her entitlement to the cheque deposited by her into her account. No such evidence was forthcoming, thereby leaving the court with the inescapable conclusion, in light of the evidence which was presented at trial, that she had fraudulently availed herself of the money endorsed to her by the cheque. Even had I concluded that the signatures on the cheque were not forgeries, the accused, in depositing the cheque to her account, would still have been obtaining monies to which she had no entitlement whatsoever.

Conclusion

[18] For the above reasons, therefore, I convict the accused of knowingly using a forged document as if it were genuine, contrary to section 368(1)(a) of the Criminal Code.

Dated at Sudbury this 30th day of November 2016

Andre L Guay Ontario Court of Justice