ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)82/10
DATE: 20120221

B E T W E E N:

HER MAJESTY THE QUEEN

Jeremy Schaffer, for the Crown

Applicant

• and -

MAXIE MORRIS

Deryk Gravesande, for the Respondent

Respondent

HEARD: February 13-15, 2012

RULING NO. 2 – ADMISSIBILITY OF PRIOR DISCREDITABLE CONDUCT

AND POST OFFENCE CONDUCT

Wein J.

[ 1 ] Ms Morris is charged with one count of fraud, centering on an investment of $23,000 that the complainant, Ms Laing, made with her in December of 2004. Funds were transferred to Ms Morris on two separate dates that December, $10,000 from Ms Laing’s line of credit and later $13,643 from a GIC that Ms Laing cashed in. The funds have not been repaid.

[ 2 ] Part of the basis of the fraud lies in allegations or inferences made that Ms Morris’ business called King Judah Financial was connected in some way to Advantage , a financial company where she was a broker .

OVERVIEW OF THE ARGUMENT:

[ 3 ] The party seeking to introduce evidence must be prepared to satisfy the Court that the evidence is relevant and admissible. In this pre-trial motion, the Crown seeks a ruling concerning the introduction of a number of separate facts occurring before, during and after the time period of the alleged fraud. Some of these facts are sought to be introduced on the basis that they are similar fact evidence, the probative value of which outweighs its prejudicial effect. Some facts are sought to be introduced simply on the basis that they are relevant to the offence, which the defence disputes. Some facts are sought to be introduced on the basis that they amount to post-offence conduct indicative of consciousness of guilt.

[ 4 ] The Crown argues that the facts in issue do not necessarily meet the definition of discreditable, but simply show that Ms Morris’ relationship to Advantage was strained both before and during the time period of the fraud. They are part of the narrative of events. The Crown argues that this evidence is relevant to the issue of whether Ms Morris could honestly believe that she could represent that King Judah Financial was affiliated to Advantage. As well, it is argued that the debt owing to Advantage at the time of the fraud is relevant to motive – financial need – to commit the offence. Finally, it is argued that the statement or threat made to Mr. Dziadecki at Advantage is relevant to consciousness of guilt. It is argued that there would not be moral prejudice, (perhaps with the exception of the evidence concerning the threat) attached to any of this evidence, or reasoning prejudice, distracting the jury from the actual charge.

[ 5 ] The defence has vigorously argued that some of the evidence, in particular the threat and the previous indebtedness, would be highly prejudicial in an unfair way, and ought not to be introduced. The defence also has argued that overall the context of the relationship between Ms Morris and Advantage in the past is simply not relevant to the offence, but has fairly conceded in oral argument that some portions of the disputed evidence are admissible.

[ 6 ] On the issues of the particulars of the prior debt to Advantage, and the threat to Mr. Dziadecki, I agree that an unfair prejudice could arise. The evidence is of limited probative value in the context of this case. However, much of the other evidence, concerning the background between Ms Morris and Advantage and the circumstances between them at the time of the offence, is relevant to the jury’s assessment of other evidence that will be led concerning representations made to the complainant.

SPECIFIC RULINGS:

[ 7 ] Fourteen separately identified fact issues have been presented for ruling, as set out in subparagraphs ‘a’ to ‘n’ in paragraph 1 of the Crown’s Statement of Fact in the Notice of Application. The following are my rulings and reasons with respect to each of these.

Subparagraphs a. and b.- Admissible

a. In 1996, the Accused met Leszek Dziadecki, the president of Advantage Group of Finance in Mississauga, an insurance and investment company.

b. At this time, the Accused joined Advantage, as an insurance broker. She was not an employee, but rather, she would receive a commission and bonus when she sold insurance policies. If the policies were cancelled by the consumer, the commission would have to be returned by the agent.

[ 8 ] The timing and nature of the relationship between Ms Morris and Advantage, where she worked as an insurance broker on commission, is relevant background information and is properly admissible.

Subparagraphs c., d., and e.- Partially Admissible

c. In 1997, the Accused briefly left Advantage due to a dispute regarding her commission being paid in instalments. The Accused did not leave on good terms. Shortly after, the Accused’s customers began to cancel their policies. When all was said and done, the Accused owed Advantage approximately $30,000, who in turn owed that sum to the insurance companies.

d. However, the Accused had returned to Jamaica and did not repay her debt.

e. In 2002, the Accused returned to Canada, and re-joined Advantage on the condition that her commissions would be paid to Advantage until she repaid the $30,000 owed. The Accused repaid that debt.

[ 9 ] These paragraphs relate to a previous incident where the accused, because of cancelled insurance policies she had sold, came to owe Advantage $30,000. She left the country and did not repay the debt. When she returned in 2002 she was permitted to re-join Advantage on condition that the debt be repaid from future commissions, which it was.

[ 10 ] It is relevant to the jury’s assessment of the overall relationship between Ms Morris and Advantage to know that she did not work for them consistently, but worked with them for separate time periods since 1997, so to that extent the evidence is admissible. The fact that she came to be in debt to them and left the country before re-paying it is not relevant to the Crown’s case. While it may become relevant if the defence suggests through cross-examination of Crown witnesses or through the presentation of its own witnesses that, for example, she was always on good terms with Advantage, the incident is not one that the Crown may properly lead in-chief.

Subparagraph f. and g.- Admissible

f. In the spring of 2004, the Accused advised Mr. Dziadecki that she was holding a dinner for her clients at the Raddison Hotel and asked him to attend because she was grateful to him for what he had done for her.

g. Mr. Dziadecki attended the dinner, and was asked to make an impromptu speech. He did not promote the new business, but merely wished the Accused well in her endeavour. The dinner was in fact to promote the Accused’s new business King Judah Financial. Mr. Dziadecki spoke, but did not promote King Judah Financial, nor did he indicate or authorize the Accused to represent that King Judah Financial was affiliated with, or part of, Advantage.

[ 11 ] The circumstances of the dinner and Mr. Dziadecki’s role at the dinner are directly relevant to the offence, because the complainant in this matter was present at the dinner event. What was said at the dinner may be directly relevant to her financial dealings with Ms Morris as it relates to her understanding of the connection between King Judah Financial, Advantage, and Ms. Morris.

Subparagraphs h. and i.: Admissible

h. Again, in the spring of 2004, the Accused’s customers began to cancel their policies. Again, the insurance companies began to demand repayment of the commissions. Mr. Dziadecki spoke with the Accused regarding this, and the Accused advised that the cancellations were the result of economic problems in Jamaica.

i. By October 2004, Mr. Dziadecki had been attempting to contact the Accused to arrange for repayment of the monies owed to the insurance companies. However, the Accused was not available.

[ 12 ] The fact that the relationship between the accused and Advantage had deteriorated at the time Ms Laing was being asked to invest because she owed money to Advantage for repayment of the commissions of cancelled policies is relevant to the issue of motive. It is not unfairly prejudicial.

Subparagraphs j., k., m., and n.: Partially Admissible

j. By February of 2005, the Accused owed $190,000 in cancelled commissions.

k. In light of information received Mr. Dziadecki made efforts to contact the pastor of the Kingdom Covenant Centre in order to warn other potential customers.

m. Mr. Dziadecki then received information from the complainant, Eileen Laing.

n. Ultimately, Mr. Dziadecki advised the Financial Services Commission and sent letters to the Accused’s last known address and email, which went unanswered.

[ 13 ] The warnings Mr. Dziadecki made to the pastor of the church were part of the background to the discussion between Ms Morris and the complainant in or around August of 2004. The fact that Mr. Dziadecki took steps to advise the Financial Services Commission also forms a relevant part of the background, because it demonstrates his view of the seriousness of the complaint by Ms Laing and his view of the relationship between Advantage and the accused. However, because part of the information was a complaint by another person who has indicated that she does not wish to testify, such that that incident is not part of the charge, the fact that Mr. Dziadecki received a specific complaint from another customer, and the details of the complaint, should not be mentioned. The Crown and defence can agree on leading questions that may be put to Mr. Dziadecki to cover this information without revealing the existence of other specific potential complaints. Since the Crown could have proceeded on at least one other charge, at least theoretically, but has chosen not to, there is no clear similar fact evidence to be assessed. Oblique references to the possible existence of similar acts cannot in these circumstances properly be made.

[ 14 ] To the extent that this information deals with after the fact conduct, that is that the complainant and others had difficulty in contacting the accused because she had moved without leaving a forwarding address, is a relevant part of the circumstances of the offence. At this stage, it does not appear that the evidence is of such probative value that it would require a discrete instruction on consciousness of guilt, but that is an issue best left to the pre-charge conference.

[ 15 ] Overall, assessed in the context of probative value versus prejudicial effect, the simple fact that Ms Laing and others were unable to contact Ms Morris is relevant to the jury’s understanding of how the matters came to light, but nothing more.

Paragraph l.- Not Admissible

l. After that, Mr. Dziadecki received a call from the Accused warning him that she would use all her power to get him, and that she would tell people that the Advantage Group of Finance was involved in child pornography.

[ 16 ] The warning that the accused gave to Mr. Dziadecki that she would “get him” and that she would tell people that Advantage was involved in child pornography occurred prior to Mr. Dziadecki becoming aware of Ms Laing’s complaint. It is prejudicial conduct not directly relevant to the jury’s assessment of this case. This evidence bears a high risk of moral prejudice, and is of no real assistance to the jury in assessing the essence of the fraud in this case. It will not be referred to by Mr. Dziadecki.

Wein J.

Released: February 21, 2012