COURT FILE NO.: JJ 94/09

DATE: 2012-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

H. Apel, for the Crown

• and -

Walter Ellington GARRICK

Self represented

Defendant

HEARD: January 20, 23, 24, 25, 26, 27, 30, 2012

JUDGMENT

Ricchetti, J.

The Charges

[1] Mr. Garrick has been charged as follows:

Count #1: That between the 11th day of January, in the year 2007, and the 16th day of February, in the year 2007, both dates inclusive, at the City of Burlington, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Scott JACKSON of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.

Count #2: That between the 30th day of January, in the year 2007, and the 8th day of May, in the year 2007, both dates inclusive, at the Town of Oakville, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Achille DIMASCIO of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.

Count #3: That between the 6th day of March, in the year 2007, and the 14th day of March, in the year 2007, both dates inclusive, at the City of Hamilton, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Kenneth CRIGHTON of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.

Count #4: That between the 5th day of April, in the year 2007, and the 27th day of June, in the year 2007, both dates inclusive, at the Town of Oakville, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Holy Trinity High School of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.

The Facts

Mr. Scott Jackson

[2] Mr. Jackson was a Defasco employee. He was married and had two children. He was a volunteer football coach for the Burlington Stampeders. One of his children played on the team.

[3] Mr. Garrick was one of the parents of another football player. Mr. Jackson met Mr. Garrick. Mr. Jackson got to know Mr. Garrick better after November 2006 when Mr. Jackson’s son was diagnosed with scoliosis. Mr. Jackson wanted early medical treatment for his son. One of the other parents told Mr. Jackson to speak with Mr. Garrick. As a result, Mr. Garrick arranged for Mr. Jackson’s son to be seen and treated at the Hospital for Sick Children much earlier than Mr. Jackson believed he would have otherwise been treated without Mr. Garrick's involvement.

[4] Mr. Garrick told Mr. Jackson he had bought the Oakville Invictas football team. Mr. Garrick asked Mr. Jackson to coach and help him recruit players and coaches.

[5] Mr. Garrick offered to pay Mr. Jackson for coaching. Mr. Jackson refused on the basis he was a volunteer and was doing it for the children. Mr. Garrick then told Mr. Jackson he could invest Mr. Jackson's money in the stock market. In this way, Mr. Jackson, while not accepting money to coach, could benefit financially from his relationship with Mr. Garrick. Mr. Jackson trusted Mr. Garrick because of what he had done for his son. Mr. Jackson was interested and agreed to invest money through Mr. Garrick.

[6] Mr. Garrick told Mr. Jackson he would invest Mr. Jackson’s money into an IPO (Initial Public Offering) of Interactive Brokers. Mr. Jackson did not ask or was not told much about Interactive Brokers. Mr. Jackson expressed concern that the investment was risky. However, Mr. Garrick told him not to worry. Mr. Garrick told Mr. Jackson he would be able to, at a minimum, double his money. Mr. Garrick guaranteed it. Mr. Garrick said it would take 60 - 90 days but Mr. Jackson could get him money back sooner if needed. Mr. Jackson agreed to invest through Mr. Garrick.

[7] On January 11, 2007, Mr. Jackson gave Mr. Garrick $5,000. Mr. Garrick signed a promissory note for $10,000 payable on or before the end of the 90 day period. The amount in the note reflected the doubling on the investment that Mr. Garrick had guaranteed Mr. Jackson.

[8] Mr. Jackson’s relationship with Mr. Garrick grew. Mr. Garrick told Mr. Jackson about his successful company, Denzcorp. Mr. Garrick offered Mr. Jackson a job. Clearly, Mr. Garrick was representing he was a successful business person and could hire Mr. Garrick personally or through his company.

[9] Mr. Garrick told Mr. Jackson that the IPO for Interactive Brokers was about to go public shortly. Mr. Garrick asked Mr. Jackson if he wanted to invest more money into the Interactive Brokers' IPO. Mr. Jackson agreed to invest a further $4,000.

[10] A second meeting took place on February 16, 2007. Mr. Jackson gave Mr. Garrick $4,000. A second promissory note was signed by both of them. The promissory note provided that Mr. Jackson would receive $40,000 within 90 days but again Mr. Garrick told Mr. Jackson that he could get his money back any time. It is unclear how Mr. Garrick came up with this amount.

[11] Mr. Jackson became suspicious of Mr. Garrick. After doing some investigation on Mr. Garrick, Mr. Jackson decided to cut ties with Mr. Garrick. Mr. Jackson asked for his money back. Mr. Jackson just wanted the return of his initial investment.

[12] Mr. Garrick became hard to get a hold of. When Mr. Jackson was able to reach Mr. Garrick, Mr. Garrick made promises of repayment but all Mr. Jackson got were excuses, broken promises and frustration for Mr. Jackson.

[13] Finally, Mr. Garrick commenced a claim in Small Claims Court. He obtained a judgment against Mr. Garrick. He has not recovered his money.

Mr. Achille Dimascio

[14] Mr. Dimascio was an employee of Knoll, North America. He had a son who played football with the Burlington Stampeders.

[15] Mr. Dimascio was called by Mr. Garrick on December 1, 2006. Mr. Garrick said he had purchased the Invictas team and wanted Mr. Dimascio’s son to play for his team. Mr. Dimascio agreed.

[16] Mr. Dimascio and Mr. Garrick became friends. Mr. Garrick told Mr. Dimascio he had made a lot of money in Google and Synchronous Technologies, two highly successful stocks. Mr. Garrick also told Mr. Dimascio he was a doctor and had gone to an Ivy League school. Mr. Dimascio was led by Mr. Garrick’s statements and actions to believe that Mr. Garrick was a very wealthy, successful business person with influential business and political connections.

[17] Mr. Garrick asked Mr. Dimascio if he was interested in buying a portion of Mr. Garrick's shares in an upcoming IPO for Interactive Brokers. He told Mr. Dimascio that he was an “insider” and had 800,000 shares in Interactive Brokers. Mr. Garrick could make shares available to Mr. Dimascio at $1 per share. Mr. Dimascio agreed to invest in the Interactive Broker's IPO.

[18] On January 30, 2007, Mr. Dimascio provided Mr. Garrick with $7,000. Mr. Garrick signed and gave Mr. Dimascio a “Loan Agreement” wherein Mr. Garrick agreed to pay back Mr. Dimascio $14,000 by May 1, 2007. The increased amount reflected Mr. Garrick’s statement that Mr. Dimascio would at least double his money.

[19] Mr. Garrick provided various emails to Mr. Dimascio in February 2007 which represented to Mr. Dimascio that Mr. Garrick was an extremely wealthy, successful business person and that he had extensive influential business and political contacts. Some of the emails Mr. Garrick provided to Mr. Dimascio included:

a) February 6, 2007 – a series of emails with the Sick Children’s Hospital Foundation showing an exchange of a draft gift agreement which purported to contemplate an $8,250,000 donation by Mr. Garrick to the hospital. The emails also included an email from Mr. Garrick commenting on the draft Donor Agreement which included a comment by Mr. Garrick that he was to make the outright gift of “8M on or before October 31, 2006”;

b) February 6, 2007 – an email from Mr. Garrick which enclosed a copy of an email from Sick Children’s Hospital Foundation confirming a $4 million dollar gift, confirmation that the Foundation had spoken to “UBS” and thanking Mr. Garrick for the “additional 4 million in funding”;

c) February 6, 2007 – an email from Mr. Garrick which enclosed an email from Mr. Larry Page – the founder of Google – referring to Mr. Garrick still holding over $2 million of the 6 million shares he had and asking Mr. Garrick to consider “the board seat”;

d) February 8, 2007 – Mr. Garrick responded to an enquiry from Mr. Dimascio regarding the Interactive Brokers' IPO;

e) February 14, 2007 – Mr. Garrick forwarded to Mr. Dimascio an email from the sports equipment supplier confirming that the company had received the $120,000 for equipment, $10,000 for a bench mist machine and $82,000 for additional equipment – all of which was done through Denzcorp – Mr. Garrick’s company;

f) February 18, 2007 – Mr. Garrick forwarded to Mr. Dimascio an email which discussed a number of professional football players attending an Invictas clinic;

g) February 18, 2007 – Mr. Garrick forwarded to Mr. Dimascio a series of emails from a lawyer confirming Mr. Garrick had funded $16 million for various purchases for the Invictas team which monies had been funded into a major law firm’s trust account. This email also attaches an email showing that Mr. Garrick had paid $150,000 to Dynamic Sports Therapy for equipment for the Invictas team;

h) February 20, 2007 - Mr. Garrick forwarded to Mr. Dimascio an email from a lawyer at Torys LLP confirming the $16,000,000 USD deposit by Mr. Garrick for the acquisition of the Gary Allan High School and the Invictas Scholarship Program. All of this was to be done through Denzcorp;

i) March 29, 2007 – Mr. Garrick forwarded to Mr. Dimascio an email he had sent to a number of persons. It was primarily addressed to Mr. Scott Jackson and deals with a variety of issues that had been raised by someone including allegations that Denzcorp did not exist;

j) May 10, 2007 – Mr. Garrick sent to Mr. Dimascio his itinerary showing meetings with John Tory, the Prime Minister, Mayor Bloomberg at his home, reception for the US President, meeting with Eugene Melnyk, announcement for the naming of the Atrium at Sick Children (something contemplated in the Donor Agreement with the hospital), meeting with the Prime Minister perhaps at Mr. Garrick’s home etc.; and

k) May 8, 2007 – Mr. Garrick forwarded an offer to employ Mr. Dimascio for $350,000 USD per year for 5 years through a Lichtenstein company of Mr. Garrick’s, which job would require extensive exotic travels throughout the world by Mr. Dimascio.

[20] In late January or early February, 2007, Mr. Garrick told Mr. Dimascio that, having bought the Invictas team, he had bought or was in the process of buying a “dome” facility in Oakville for $7,000,000. He offered Mr. Dimascio 1% for $30,000. Not only was this attractive for Mr. Dimascio financially (it would double his investment on acquisition) but the Dome’s operations could provide employment for his children. Mr. Garrick said that if the deal did not go through he guaranteed Mr. Dimascio’s money back “or more”. Mr. Dimascio agreed and gave Mr. Garrick $30,000. The financial arrangements for this investment are set out in an email from Mr. Garrick to Mr. Dimascio, dated February 6, 2007.

[21] Shortly before May 1, 2007 (and just before the 90 days in the first agreement required repayment to Mr. Dimascio), Mr. Garrick came to Mr. Dimascio and said he needed $3,000 either to purchase or store equipment for the football team. Mr. Dimascio agreed and provided Mr. Garrick with $3,000.

[22] The Interactive Brokers IPO went to market on May 4, 2007. The price was approximately $31 per share. Mr. Dimascio thought he had done very well in his investment. He had made approximately 31 times his initial investment through Mr. Garrick.

[23] On May 4, 2007, Mr. Garrick and Mr. Dimascio spoke on the telephone with Thomas Gjestvang from the Union Bank of Switzerland – or so Mr. Dimascio was led to believe by Mr. Garrick. The purpose of the call was to find out when the profits from the investment in Interactive Brokers would arrive. Mr. Ghestvang told Mr. Dimascio his money, being the return on his investment in Interactive Brokers through Mr. Garrick, would be available on May 9, 2007.

[24] Mr. Garrick approached Mr. Dimascio and said he would let him have another 10,000 shares in Interactive Brokers for $10,000 notwithstanding that the Interactive Brokers’s shares were already trading at $31 per share. Mr. Dimascio thought that Mr. Garrick was doing this because he was a billionaire.

[25] The Dome deal had not yet materialized. Mr. Garrick also agreed that, since the Dome deal had not yet happened, Mr. Dimascio would convert his prior investment with Mr. Garrick into shares of Interactive Brokers on the same basis - $1 per share if the Dome acquisition did not materialize before May 15, 2007. Mr. Dimascio gave Mr. Garrick the further $10,000 investment on May 5, 2007.

[26] A “Loan and Repayment Agreement” was prepared and signed by both parties. The relevant portions state:

Loan Amount 1: 30,000 Canadian Dollars

If the deal to purchase the Oakville Sports Complex does not materialize on or before May 15, 2007, Walter Garrick has agreed to allocate the equivalent market value of 30,000 (thirty thousand) shares of Interactive Brokers, ticker IBKR, to Achille Dimascio as the form of repayment for this loan. The equivalent value of these shares on the close of trading May 4, 2007, is approximately $31,30 USF per share. This payment is due on May 16, 2007.

Loan Amount 2: 20,000 Canadian Dollars

Achille Dimascio has loaned an additional 20,000 (twenty thousand) Canadian Dollars to Walter Garrick to be repaid by depositing into a bank account registered to Achille Dimascio, the equivalent value of 20,000 shares of Interactive Brokers, Interactive Brokers closing value on May 4th, 2007 was $31.30 USF per share. This amount, approximately $626,000 USF, is due for repayment on Wednesday May 9th, 2007.

[27] Again, when Mr. Dimascio thought he had made a successful investment through Mr. Garrick and was awaiting his money scheduled for May 9, 2007, Mr. Garrick again approached Mr. Dimascio and offered Mr. Dimascio a further investment in Interactive Brokers for a further $50,000 at the $1 per share. Mr. Dimascio agreed (it would have been a 1.5 million dollar profit) and provided Mr. Garrick a further $50,000 on May 8, 2007. On that date, a further “Loan & Payment Agreement” was signed by both parties. Essentially, Mr. Garrick agreed to treat all of Mr. Dimascio’s advances as investments in Interactive Brokers at $1 per share. The Loan and Payment Agreement provides:

Walter Garrick has borrowed $100,000 Canadian Dollars from Achille Dimascio and agrees to repay the loan by depositing 100,000 shares (or cash equivalent) of Interactive Brokers (IBKR: NASDAQ) (approximate market value $3,000,000 USF) in an account to be opened by Achille Dimascio. This loan is due for repayment in full by May 31, 2007.

This Loan Agreement superceeds (sic) all previous loan agreements.

[28] Later in May 2007, Mr. Garrick told Mr. Dimascio that he had purchased a Porsche for Mr. Dimascio. Mr. Dimascio was to pick it up at a dealer’s office. Mr. Dimascio went to the dealer’s officer on May 25, 2007 only to find out that Mr. Garrick had not paid for the vehicle. Mr. Dimascio now started to worry that Mr. Garrick and his promises were not real. Mr. Dimascio asked Mr. Garrick for his money back.

[29] Despite repeated requests for the return of his money, no money arrived on May 31, 2007. Mr. Dimascio followed up with many requests for repayment. There were many promises by Mr. Garrick. There were many excuses by Mr. Garrick. Scheduled meetings were missed. All was for naught.

[30] Mr. Dimascio commenced a claim. He has judgment. He has never recovered any of his money.

Mr. Kenneth Crichton

[31] Mr. Crichton was approached by Mr. Garrick to coach the Invictas football team in January 2007. Mr. Crichton attended at a coaches meeting and was impressed with the former professional football players who attended.

[32] On March 6, 2007, Mr. Garrick called Mr. Crichton and asked to come over to Mr. Crichton’s home. Mr. Crichton agreed. They met and discussed some of Mr. Garrick's plans to buy the Gary Allen High School and the Dome. Mr. Garrick told him he wanted to have the coaches sign contracts in which they would be paid. Mr. Crichton replied he was a volunteer and did not need to be paid.

[33] Mr. Garrick told Mr. Crighton:

• Mr. Garrick was very wealthy. Mr. Garrick explained to Mr. Crichton Mr. Garrick’s financial and business background including that of his company, Denzcorp;

• Mr. Garrick had powerful and influential friends including the daughter of Ted Rogers who was on his board;

• Mr. Garrick showed Mr. Crichton photos to demonstrate that Mr. Garrick knew the Toronto Argonauts and went to games at the owner's box in the Skydome. Mr. Garrick showed him photos with the Mayor of Oakville and with senior members of the Tory political party; and

• Mr. Garrick showed Mr Crighton a letter on CIBC letterhead that showed Mr. Garrick had 25 million dollars in the account which Mr. Garrick told Mr. Crichton he had allocated from his company, Denzcorp to the Invictas football program.

[34] Mr. Crighton was very impressed. Mr. Garrick told Mr. Crighton that the coaches could go to his restaurant, Paradiso, "on him". Mr. Crighton went a couple of times and the restaurant bill was “taken care of”. This confirmed Mr. Garrick’s statements that he was wealthy and had power and influence.

[35] Mr. Garrick told Mr. Crighton that he wanted coaches to focus on coaching and Mr. Garrick could offer him financial opportunities that only the wealthy and elite got involved in. Mr. Garrick told Mr. Crighton about Interactive Brokers’ IPO and that Mr. Garrick could buy shares in Interactive Brokers before it went to the market in an IPO. Mr. Garrick had shares of Interactive Brokers available at $1 per share. Mr. Garrick told Mr. Crighton that his investment would at least double. Mr. Garrick would guarantee it. Mr. Crighton said he was interested and could invest $30,000 in Interactive Brokers. Mr. Crighton trusted Mr. Garrick because of what Mr. Garrick had done for Mr. Jackson’s son and what Mr. Garrick had said and shown him.

[36] Mr. Crighton had $3,300 at home. Mr. Crighton gave this money to Mr. Garrick as a deposit towards the $30,000. Before Mr. Garrick left, he wrote a letter confirming that he “owes Ken Crighton 60 thousand dollars US payable in 180 days from March 6/2007”. Again the $60,000 represented the amount Mr. Garrick had promised Mr. Crichton, a doubling of his money.

[37] Mr. Crighton was a little nervous having invested with Mr. Garrick. Mr. Crighton asked Mr. Garrick for the name of his banker. Mr. Garrick gave him the name of Kyle Delaplant, at CIBC in Oakville, and told Mr. Crighton that Mr. Delaplant dealt with in large dollar transactions. Mr. Crighton called Mr. Delaplant at CIBC. He was a person at the bank. Mr. Crighton got Mr. Garrick’s banking information and transferred the balance of the $30,000 to Mr. Garrick’s account in the CIBC.

[38] The Interactive Brokers IPO went public in May 2007 and the shares rose to about $33 per share. Mr. Crighton believed his money had grown to almost a million dollars. Mr. Crighton asked Mr. Garrick for his money.

[39] Despite promises by Mr. Garrick, failed attendances at meetings, inability to get Mr. Garrick on the phone, Mr. Garrick did not come through with Mr. Crighton’s money.

[40] A frustrated Mr. Crighton went to the CIBC to speak to Mr. Delaplant. When he arrived at the CIBC, he found out that Mr. Delaplant was a “greeter” at the bank and directed persons to the right area rather than a manager who dealt with large dollar transactions. Mr. Delaplant was surprised to see him and became nervous. Mr. Crichton became very concerned.

[41] For the next six months all Mr. Crighton got from Mr. Garrick were promises and excuses. Mr. Crighton has never recovered his money.

The Holy Trinity High School - Mr. Donald Grant

[42] Mr. Grant was the principal at Holy Trinity High School in Oakville. In early 2007, Mr. Garrick told him he was taking over the Invictas team and wanted the exclusive right to use the school field for five years. In return, Mr. Garrick promised the Invictas team would provide a scoreboard, change facilities, etc. Mr. Grant arranged for Mr. Garrick to meet with the Board’s superintendent. The Board declined to come to an arrangement with Mr. Garrick since the school field was a community field and they were not prepared to commit to exclusive use for the Invictas team. The proposal was dead.

[43] On April 3, 2007, Mr. Garrick called Mr. Grant. Mr. Garrick said that he was returning the scoreboard they had purchased for the school (the clear implication being that because the proposal was dead, Mr. Garrick no longer needed the scoreboard). Mr. Garrick offered to let the school buy the scoreboard. Mr. Garrick told Mr. Grant that the school would have to give him $7,000 (as a deposit) because the scoreboard was at the border and this much money was required to get it released or returned. Mr. Garrick told Mr. Grant that Mr. Garrick would pick up the scoreboard and deliver it to the school in a few days. Mr. Grant, on behalf of the school, agreed. Mr. Garrick told him he would send someone to the school. Mr. Garrick said “he OK’d Mr. Valle’s involvement with the school”. Mr Garrick told Mr. Grant that Mr. Valle was a trustee for his company and his family.

[44] Two days later, on April 5, 2007, Mr. Jan Valle, an associate of Mr. Garrick arrived. Mr. Valle produced an invoice which described the purchased scoreboard. Both Mr. Valle and Mr. Grant signed the invoice as evidence of the agreement. Mr. Grant provided him a $7,000 cheque payable to City Design Studio. Mr. Grant had no doubt this was Mr. Garrick’s company when he provided the cheque. Mr. Grant expected the scoreboard to be delivered in a “few days”.

[45] By the end of April, 2007, the scoreboard had not arrived. Mr. Grant left a message for Mr. Garrick. There was no reply.

[46] Mr. Garrick finally got back to Mr. Grant and told him that he had the scoreboard at the Brock school. Mr. Garrick assured Mr. Grant it would be delivered to the school and even offered to install the scoreboard for Mr. Grant.

[47] After some more time, Mr. Grant called the scoreboard supplier – Centaur products. Mr. Grant was told there was no record of the purchase.

[48] Mr. Grant immediately called Mr. Garrick. Mr. Garrick denied what Mr. Grant had been told and told him there was a mix up within the company which they were trying to fix.

[49] Mr. Grant decided the deal was “over”. He wanted his money back. On June 19, 2007, Mr. Grant was told to go to Mr. Garrick’s aunt’s home to pick up the money. The return of the money never happened. Mr. Garrick always agreed to return the money but always needed a few more days to return the money.

[50] Again, many meetings were scheduled with Mr. Garrick without Mr. Garrick ever attending. There were promises of repayment but none were kept. Mr. Garrick even gave Mr. Grant a cheque for $7,000 but that did not clear because of insufficient funds. There were more promises by Mr. Garrick but no delivery on those promises.

[51] The school has not recovered its money.

Mr. Walter Ellington Garrick

[52] Mr. Garrick chose to testify. Much of his evidence was vague, evasive and non-responsive. When Mr. Garrick was forced to provide details of what he was testifying about, the testimony became confusing, inconsistent and quite often unbelievable. Mr. Garrick created a world of smoke and mirrors regarding himself, his past, his wealth, his friends and his business deals. When confronted with what was in documents he had signed and given to investors, Mr. Garrick decided to go down another avenue, equally vague, evasive and unbelievable – he was defrauded by Mr. Jan Valle who was supposed to invest in Interactive Brokers but took his money, did nt invest it and wouldn’t return it.

[53] Of course, during Mr. Garrick’s evidence there was enough blame for him to throw at the investors – they could have checked, they did not get their money back because they went to the police and he was arrested – or at the police and the Crown – because they were involved in some conspiracy to financial bankrupt him so he could not retain a lawyer or defend himself. There was not a scintilla of evidence to suggest any merit to these allegations.

[54] Let me deal with the various issues covered by Mr. Garrick in his testimony.

The Altered Documents

[55] Mr. Garrick advised the court and testified that many of the emails presented by each of the complainants (and apparently authored by him) had been altered. Mr. Garrick could not say who did it. Mr. Garrick could not say when it was done. Mr. Garrick could not even point to a specific email and show an “unaltered” original. Mr. Garrick gave many excuses why he could not show any unaltered emails such as he could not access his computer and his wife took his files when they separated.

[56] When pressed in cross-examination by the Crown and at the court’s request to be specific as to what email and what portions he believed had been altered, Mr. Garrick pointed to a difference between the draft Donor Agreement with the hospital produced by Mr. Dimascio (as being sent to him by Mr. Garrick) and the final agreement with the Hospital for Sick Children. After it was pointed out that Mr. Dimascio’s copy was an October 2006 draft Donor Agreement which also attached an email from Mr. Garrick to the hospital proposing some changes to the draft agreement whereas the copy produced by Mr. Garrick was dated November 2006 and was purportedly the final agreement with the hospital, Mr. Garrick immediately abandoned his suggestion that Mr. Dimascio’s copy was an altered document.

[57] Mr. Garrick chose not to be specific about any other allegedly altered emails. He maintained his denial that portions of the emails were actually sent by him without being specific as to which emails, which portions or what he alleged was in the original email.

[58] I accept that the emails presented and marked as exhibits in this trial as having come from Mr. Garrick or forwarded to the complainants accurately reflect what was sent to them from Mr. Garrick. They were not altered as suggested by Mr. Garrick.

Publicity

[59] Mr. Garrick suggested during his testimony that the evidence of the complainants arose as a result of them reading newspaper articles after his arrest. Mr. Garrick produced several newspaper articles which described other charges, some in other jurisdictions, where Mr. Garrick has been alleged to have made very similar statements to the alleged victims as have been alleged were made to the complainants herein.

[60] The difficulty is that there is no evidence the complainants have or had read these articles before their evidence. They were not questioned on this.

[61] In any event, some of the emails introduced at this trial, authored by Mr. Garrick and distributed to a number of persons including some of the complainants, are confirmatory of the statements made by Mr. Garrick regarding his wealth and his connections with the rich and famous well before he was arrest and well before any publicity regarding his actions.

[62] There is simply no basis to reject the testimony of the complainants as suggested by Mr. Garrick. It is mere speculation that their evidence was influenced one iota from what actually occurred in 2007 with Mr. Garrick. I reject that any of the complainants’ evidence was tainted or altered by any after the fact publicity Mr. Garrick received in connection with alleged fraudulent activities.

He Was a Wealthy, Successful Business Person

[63] Mr. Garrick denies he told the complainants he was wealthy and a successful business person. I disagree. I reject Mr. Garrick’s evidence on this issue. Mr. Garrick repeatedly told the complainants he was wealthy and successful in business through his express words and his actions. I need only point to a few items:

i. The $8,000,000 donation to Sick Children’s Hospital;

ii. The $16,000,000 in his lawyer’s trust account to buy the Dome and for the scholarships he intended to establish for Invictas;

iii. The purchase of advertising blimps for the Invictas team and then went to Russia to purchase the factory;

iv. He had a private jet. Mr. Garrick does not deny he flew around in a private jet. He just denies that he told anyone he owned it. He admits he rented it;

v. he showed Mr. Dimascio a CIBC statement, which had $25,000,000 deposited and earmarked for the Invictas team;

vi. he made the Paradiso restaurant available to all his coaches and their family, all “on him”;

vii. the “yacht” that Mr. Garrick had bought and on which Mr. Dimascio commented;

viii. His successful stock purchases like Google and Synchronous Technologies; and

ix. His business and political persons he dealt with.

[64] I am satisfied that Mr. Garrick deliberately made statements to some of the complainants that he was very wealthy and a very successful business person.

He Was a Doctor and an Ivy League Scholar

[65] Mr. Garrick told some of the complainants that he was a doctor and had gone to an Ivy League school. Mr. Garrick’s email address was drwegarrick@sympatico.ca. This provided some confirmation to Mr. Dimascio that Mr. Garrick was a “doctor”.

[66] Mr. Garrick testified he admitted he went to an Ivy league school – Columbia University, to become a doctor but he never completed the program.

[67] With respect to the “dr” at the front of his email address, Mr. Garrick said when he was in school in 1994 he was a “director” and had intended to put “dir” in front of his email address but by mistake put “dr” and he has never changed it since that time. In my view, there is not a more unbelievable part of Mr. Garrick's evidence than this.

[68] I am satisfied Mr. Garrick knew what he was doing – leading people to believe he was a doctor who became successful in business.

He Was Connected with the most Senior Political Persons

[69] There is no doubt Mr. Garrick told some of the complainants that he was well connected with the rich, famous and influential in business and politics. The names are peppered throughout Mr. Garrick’s emails – in some cases with subtle reference to the person’s name – in others, more obvious such as having the Prime Minister of Canada to his apartment at the Windsor Arms. The list of political persons which Mr. Garrick told complainants he dealt with included:

i. The Prime Minister of Canada;

ii. The former Premier of Ontario;

iii. The senior members of the Tory political party;

iv. The President of the United States;

v. The Mayor of Mississauga;

vi. the Mayor of New York.

[70] Mr. Garrick admitted that he did not know all these persons. This was where Mr. Garrick suggested that someone altered his emails to make it look like Mr. Garrick knew these persons. As I said above, I reject Mr. Garrick’s assertion that the emails were altered.

[71] Clearly, Mr. Garrick knew that by telling some of the complainants that he knew influential political and successful business persons would encourage them to trust him, his business acumen and the reliability that the financial proposals being put to the complainants were real and likely to generate large profits for the investors.

He Was Connected with the most Successful Business Persons

[72] There is no doubt Mr. Garrick let it be known to the complainants that he was close to the most successful business persons. Further, he suggested the relationship was close such as being offered a board position. The business persons referred to in Mr. Garrick’s emails included:

i. The founder of Google – Mr. Larry Page – who was also offering Mr. Garrick a “board seat”;

ii. The owner of the Dallas Cowboys – Mr. Jerry Jones Jr. who “asked” the Dallas head coach to call Mr. Garrick;

iii. The founder of Biovail – Eugene Melnyk; and

iv. Paul Allen – co-founder of Microsoft.

[73] A review of Exhibit 16 showing Mr. Garrick’s itinerary for the last half of May and June 2007 would, by anyone’s standards, be the itinerary of a wealthy “mover and shaker” in business and politics.

[74] Mr. Garrick knew that by telling persons of these political and business connections, the persons he told would more likely believe Mr. Garrick had access to business deals the “common” person could never have. To use Mr. Garrick’s own words – he was an “insider”.

Mr. Garrick’s company - Denzcorp

[75] Mr. Garrick told some of the complainants that Denzcorp was his business company through which Mr. Garrick held his supposed wealth, and was involved in his business dealings including the Invictas team. Mr. Garrick’s emails make reference to his dealings using “Denzcorp”.

[76] However, during the course of cross-examination by Mr. Garrick, he produced an email, authored by him, in response to suggestions by Mr. Jackson that Denzcorp did not exist (amongst other allegations). Mr. Garrick, in that email, admits that Denzcorp “does not exist in Canada as anything in Canada the US, or the UK., however it not unlike Garcorp exists as my attorneys are well aware of.” Later in the same email, Mr. Garrick states that Denzcorp (the company which does not exist in Canada) owns the name "Burlington Stampeders Inc." To add to the confusion in Mr. Garrick’s world of smoke and mirrors, Mr. Garrick, later, during his evidence, produced a Ministry of Consumer and Business Services certificate which showed that the Burlington Stampeders Inc. was a separate corporation owned by “Cayenne Garrick” – as Mr. Garrick explained - his dog!

[77] Mr. Garrick misled the complainants to believe Denzcorp was his successful corporation.

Invictas Football Team

[78] Mr. Garrick claims to have bought the Invictas football team. This was his entre into the world of the four complainants. His explanations regarding his purchase of the Invictas team were vague in that there were no details as to when the closing took place and how it was structured. Mr. Garrick said that he arranged the purchase through a trust for his son – but again no further information on how this was done. When asked for documentation that he had bought the Invictas team – Mr. Garrick said the documentation was lost.

[79] Nothing herein turns on whether there was an actual purchase of the Invictas football team.

[80] Mr. Garrick admitted he showed Mr. Dimascio a document showing $25 million. However, Mr. Garrick testified it was not a letter from CIBC, but instead a projection that the Invictas team would be worth (in the future and depending on territory) $25,000,000. However, this valuation for a team that, even according to Mr. Garrick could not tell us the cost, is simply not credible. This was yet another example of Mr. Garrick telling some of the complainants as to his business acumen and wealth. I accept the evidence of Mr. Crighton that what Mr. Garrick showed him was a bank statement on CIBC letterhead purporting to show a deposit of $25,000,000 as the amount allegedly deposited by Mr. Garrick for use to develop the Invictas football team. Clearly, the letter was a fake letter. This finding is much more consistent with the admitted plans of Mr. Garrick for an “open table” at Paradiso for the coaches, some professional football player coaches, the purchase of a school, the purchase of a dome for practices, scholarship programs and so on. Given Mr. Garrick’s evidence, it is clear that there was no $25,000,000 deposited at CIBC.

The Dome Purchase

[81] Mr. Garrick told the complainants he wanted to buy a dome in Oakville for use by the Invictas team.

[82] Mr. Garrick told Mr. Dimascio it was going to cost $7,000,000 to buy the dome. Mr. Garrick told Mr. Dimascio that he would give Mr. Dimascio 1% for $30,000 (a more than doubling Mr. Dimascio’s investment immediately if the deal closed). This statement to Mr. Dimascio would have confirmed to Mr. Dimascio regarding Mr. Garrick’s wealth and Mr. Garrick’s willingness to share his financial benefits with Mr. Dimascio, a fact relied on by Mr. Garrick to get Mr. Dimascio to “invest” more money with Mr. Garrick.

[83] Mr. Garrick testified that when the Dome purchase deal fell apart, he told Mr. Dimascio that Mr. Dimascio could convert the $30,000 investment in the dome purchase into a $30,000 investment in the Interactive Brokers IPO at the same $1 per share. Mr. Garrick could hardly deny that he said this to Mr. Dimascio as it was set out in the agreements signed by him and Mr. Dimascio.

Interactive Brokers

[84] After a lot of vague testimony regarding Interactive Brokers and right near the end of his evidence, Mr. Garrick testified he had invested approximately $412,000 in Interactive Brokers. Like most of his evidence, when cross-examined by the Crown as to when, how or details of the purchase, none were forthcoming. Mr. Garrick testified he had given money to Mr. Valle to purchase shares in Interactive Brokers. According to Mr. Garrick, he believed he held shares in Interactive Brokers but somehow, Mr. Valle did not return Mr. Garrick’s money or profits.

[85] Mr. Garrick admitted he did not know whether he ever had a share in Interactive Brokers. He obviously never saw a single share of Interactive Brokers.

[86] One aspect of Mr. Garrick’s evidence on Interactive Brokers was extremely troubling.

[87] When Mr. Garrick first testified on Wednesday, January 25, 2012, the Crown asked whether Mr. Garrick had any documents which showed he had purchased Interactive Brokers’ shares.

i. Mr. Garrick produce an email string which had an email from him dated October 24, 2006 asking Mr. Valle to confirm receipt of “the second amount of the investment in Interactive Brokers.” (Exhibit 30) The bottom of Mr. Garrick’s email wasn’t included. It appeared cut off. Further, the alleged response from Mr. Valle doesn’t expressly refer to the monetary advance or the investment in Interactive Brokers;

ii. The next email produced by Mr. Garrick was an email dated October 31, 2009 – more than two years after the complainants had invested their monies with Mr. Garrick. ( Exhibit 31) Mr. Valle responded to an email from Mr. Barron (?). Mr. Barron did not ask about Interactive Brokers or Mr. Garrick’s investment. Surprisingly, Mr. Valle allegedly wrote back, “I can not give you back the four hundred thousand or the stock holding in Interactive Brokers at this time.” The difficulty, even if the email is true is that it doesn’t establish when Mr. Garrick advanced any money to Mr. Valle or whether Mr. Garrick had shares in Interactive Brokers in early 2007 (prior to the IPO) or whether Mr. Garrick had purchased the shares of Interactive Brokers at $1 per share;

iii. The last email produced by Mr. Garrick was an email purportedly from Mr. Valle on March 30, 2010 (Exhibit 32) – again years after the fact. In this email Mr. Valle refers to shares he is holding from Interactive Brokers and Synchronoss Technologies;

iv. Mr. Garrick could produce nothing else. Mr. Garrick referred to having advanced funds to Mr. Valle but again specifics were missing. Documents were not produced; and

v. At the conclusion of Mr. Garrick’s evidence, to give Mr. Garrick every opportunity to present his evidence, the court told Mr. Garrick that, if he had any further documents which showed he had shares in Interactive Brokers or would show that he believed he had shares in Interactive Brokers in 2007, he could ask the court to be permitted give further evidence in this trial.

[88] On Thursday, January 25, 2012 at 10:00 a.m., the trial was to continue with defence evidence. At the beginning of court, Mr. Garrick advised the court on his inability to properly subpoena witnesses or have any witnesses to testify. Immediately thereafter, Mr. Garrick advised the court he had wire transfers of money to Mr. Valle and pointed to documents he had with him in court. However, when asked whether he wished to put those documents into evidence, Mr. Garrick indicated he needed time to “organize” the wire transfers. The court adjourned that day before 11:00 a.m. to permit Mr. Garrick to focus on serving his subpoena’s and the wire transfers could be dealt with on the next day allowing Mr. Garrick time to “organize” them.

[89] The trial resumed at 9:00 a.m. on Friday, January 26, 2012. Mr. Garrick advised he wished to introduce further evidence. The Crown did not oppose. Mr. Garrick was called once again to the witness box. Despite requests from Crown counsel to produce the wire transfers Mr. Garrick had referred to on the previous day, Mr Garrick refused to produce the wire transfers he had described the previous day showing the transfer of monies to Mr. Valle. These were potentially relevant to Mr. Garrick’s defence since he indicated on the previous day that some showed or referenced Interactive Brokers.

[90] Rather than refer to and mark the wire transfers as exhibits in this trial, Mr. Garrick testified he had “just found” some documents “in a box up north at a friend’s home”. These documents included:

i. An email chain which included an email from Mr. Valle dated January 3, 2007 confirming that Mr. Garrick had 412K shares in Interactive Brokers;

ii. An original receipt purportedly signed by Mr. Garrick and Mr. Valle that Mr. Valle had received $120,000 on January 5, 2005 of which $110,000 was to be used exclusively to invest in Interactive Brokers at a dollar or share or less before the company goes public; and

iii. An original receipt that Mr. Valle had borrowed $7,000 from Mr. Garrick “which is separate from the 120 thousand invested in Interactive Brokers at one dollar a share.”

[91] No credible explanation was given why these documents had not been produced or even referred to during his prior testimony. The documents, supposedly some seven years old and contained in a “box”, were unfolded, untorn, not smudged and on a clean sheet of paper which looked like it had come out of a paper bundle the night before. A comparison of Exhibit 22 and the documents produced by Mr. Garrick at Exhibits 39 and 40 demonstrates my suspicion regarding the newly produced documents by Mr. Garrick.

[92] In all the circumstances, I place no credibility on Mr. Garrick’s testimony that these documents were prepared and delivered in 2005. They are simply not reliable and worthy of consideration in this trial.

[93] There is no obligation on Mr. Garrick to prove anything in this trial. The onus rests entirely with the Crown to prove the essential elements of the charges beyond a reasonable doubt. However, having chosen to testify, the inconsistency in Mr. Garrick’s evidence, the lack of details or the failure to produce documentation to support Mr. Garrick’s evidence goes to issue whether the court believes Mr. Garrick’s evidence or is left with a reasonable doubt based on Mr. Garrick’s evidence in a W.D. analysis.

[94] What is the uncontroverted evidence regarding Interactive Brokers?

i. Mr. Garrick does not deny he told Mr. Jackson, Mr. Dimascio and Mr. Crighton about Interactive Brokers’ IPO and that it was to go public soon;

ii. Mr. Garrick does not deny he told Mr. Dimascio and Mr. Crighton that they were buying a portion of his shares in Interactive Brokers at $1 per share. The Loan agreement signed by Mr. Garrick for Mr. Dimascio expressly states this. It is consistent with what the other complainants testified they were told. I accept that Mr. Dimascio and Mr. Crichton were each told they were investing in Interactive Brokers at $1 per share based on Mr. Garrick giving them his shares of Interactive Brokers which he had bought at $1 per share. Mr. Garrick's statements to Mr. Jackson were somewhat different;

iii. Mr. Garrick does not deny the shares of Interactive Brokers upon going public on May 4, 2007 opened at $25 per share and rose to somewhere between $31 and $33 per share (as described by Mr. Dimascio);

iv. Mr. Garrick does not suggest that he bought any shares from the equity owners of Interactive Brokers prior to the company going public. When asked how he could have purchased the shares at below $25 per share, there was really no answer. On Friday January 27, 2012 (when Mr. Garrick testified for the second time), he produce a portion of a preliminary SEC filing document (exhibit 37) which showed that the owners of Interactive Brokers were proposing to raise $500,000,000 and had valued their common stock for calculation of registration fee at $0.01 per share. This does not support Mr. Garrick’s suggestion that shares could have been purchased by him for less than $25 per share. In fact, the same document shows that the number of shares to go to the public and the public offering price range was left blank. This is consistent with the fact this was a draft document and that the price at which the public could buy the shares was to be determined later – a not uncommon method by which IPO’s are handled in accordance with regulatory requirements; and

v. Mr Garrick admitted he did not know whether he had ever received a single share of Interactive Brokers.

[95] Mr. Garrick denied he told Mr. Dimascio that he had 800,000 shares in Interactive Brokers at $1 per share. I accept this evidence from Mr. Dimascio. Whether an exaggeration by Mr. Garrick or a deliberate lie, the statement was false.

[96] Let me now turn to the only issue regarding Interactive Brokers. Mr. Garrick’s testimony is that he provided $412,000 to Mr. Valle for the acquisition of Mr. Garrick’s shares in Interactive Brokers. Details, in like much of Mr. Garrick’s other explanations and evidence, are lacking including details regarding:

• The timing of when this acquisition occurred was vague;

• The terms of the acquisition and how it was accomplished by Mr. Garrick or Mr. Valle were not existent;

• The arrangement between Mr. Garrick and Mr. Valle are not clear; and

• There were no documents showing Mr. Garrick’s payment for or receipt of any shares in Interactive Brokers before the company went public on May 4, 2007.

[97] There is no evidence that Mr. Garrick had any shares of Interactive Brokers at $1 per share or that he could have made the shares available to the complainants at $1 per share. Mr. Garrick submits that he could have sold his shares in Interactive Brokers to the complainants at $1 per share - the price was entirely up to him. This is only true if Mr. Garrick had sufficient shares or sufficient monies to pay the complainants. Given the number of shares he promised Mr. Dimascio and Mr. Crighton, many millions of dollars would have been necessary to do this.

[98] Mr. Garrick also testified that he did not mean to deceive Mr. Jackson, Mr. Dimascio and Mr. Crighton. He said he believed what he told them based on the information he had been told by Mr. Valle. At best, all Mr. Garrick could say was that he had given Mr. Valle $412,000 to purchase Interactive Brokers and, eventually, produced the two highly suspicious documents mentioned above.

[99] The issue is whether the Crown has established beyond a reasonable doubt that Mr. Garrick had shares in Interactive Brokers at $1 per share. While I have very little doubt that Mr. Garrick did not have any shares in Interactive Brokers at the time, the Crown has not established beyond a reasonable doubt that he did not have shares in Interactive Brokers – in other words – this was false. However, what is clear on the evidence is that Mr. Garrick did not have 800,000 shares in Interactive Brokers - he admits this. Other than mere speculation by Mr. Garrick, Mr. Garrick did not have shares in Interactive Brokers at $1 per share.

Union Bank of Switzerland

[100] UBS was purported to be Mr. Garrick’s bank. This can be seen from various emails, the Donor Agreement with the hospital and references to UBS holding in trust Mr. Dimascio’s five years salary of $1,750,000 USD should he accept the job offer from Mr. Garrick

[101] It is not surprising then that when Mr. Dimasicio wanted his money, Mr. Dimascio testified Mr. Garrick and he had a three-way call to Mr. Gjvestang at UBS. Mr. Dimascio was told that Mr. Gjvestang was Mr. Garrick’s banker at UBS. Mr. Gjvestang confirmed to Mr. Dimascio that the money “was coming” in a few days.

[102] However, Mr. Garrick testified Mr. Gjvestang was not an employee of UBS but rather some individual known to him and with whom he held a joint bank account.

[103] It would have made little sense to tell Mr. Dimascio that Mr. Gjestang was a joint bank account holder. The three-way call was only significant to Mr. Dimascio because he had been told by Mr. Garrick that Mr. Gjvestang was with UBS. The significance of being told this by Mr. Garrick’s “banker” led Mr. Dimascio to invest even more funds with Mr. Garrick. T here simply would have been no purpose to have some friend of Mr. Garrick tell Mr. Dimascio the money was coming soon.

[104] The only conclusion was that Mr. Garrick lied to Mr. Dimascio as to whom he was speaking to to have Mr. Dimascio believe he had made a lot of money in Interactive Brokers and that Mr. Dimascio would have his money soon according to Mr. Garrick’s banker before Mr. Garrick asked Mr. Dimascio to invest a further $50,000.

The Hospital for Sick Children

[105] There is no issue that Mr. Garrick provided Mr. Dimascio a copy of his draft Donor Agreement with the Hospital for Sick Children Foundation for an approximate $8,000,000 donation by Mr. Garrick. Mr. Garrick also gave Mr. Dimascio other email exchanges supporting his donation to the hospital.

[106] There was no reason for Mr. Garrick to have provided these documents to Mr. Dimascio other than to represent to Mr. Dimascio that Mr. Garrick was a very wealthy person and to support his statements to Mr. Dimascio that Mr. Garrick was a successful business person with business and political connections and, therefore, his investment was safe.

[107] While there was a signed Donor Agreement with the Hospital for Sick Children Foundation and Mr. Garrick for an $8,000,000 donation, it took some time for Mr. Garrick to admit no money was given to the Hospital by him under the Donor Agreement.

[108] However, Mr. Garrick’s emailed itinerary to Mr. Dimascio included the “atrium naming” at the hospital – exactly what was to happen under the Donor Agreement after Mr. Garrick had made the $8,000,000 donation. Clearly, Mr. Garrick wanted Mr. Dimascio to believe Mr. Garrick had in fact made the very large donation to the hospital.

[109] Mr. Garrick’s explanation that he had only committed to give the Hospital $8,000,000 does not help him since producing the document was to confirm he was wealthy and Mr. Garrick went on to maintain the lie that he had given the hospital the $8,000,000 when he provided to Mr. Dimascio his itinerary. He wanted Mr. Dimascio to believe that he was wealthy and had donated the $8,000,000 to the hospital. This was deceitful and false.

The Scoreboard

[110] Mr. Garrick testified he essentially had nothing to do with the scoreboard other than to introduce Mr. Valle to Mr. Grant. Mr. Garrick said he had no signing authority for City Design or any interest in that company.

[111] However, Mr. Garrick testified that he was the one who put the $7,000 deposit on the scoreboard. It was for Mr. Garrick’s Invictas football team. It was Mr. Garrick who was negotiating to use Holy Trinity’s football field. It was Mr. Garrick who promised he would provide a scoreboard if the school agreed to give him the exclusive use of the field. Mr. Garrick admitted he approached Mr. Grant to buy the scoreboard. Mr. Garrick admitted telling Mr. Grant the scoreboard was at the border and heading back to the US but that he – Mr. Garrick – could, for $7,000, pick up the scoreboard and have it delivered to Mr. Grant’s school. It was Mr. Garrick who admitted he would send his “associate” to complete the transaction. It was Mr. Garrick who directed Mr. Valle to go to Mr. Grant’s office to pick up the $7,000.

[112] Mr. Garrick’s attempt to distance himself from Mr. Grant’s payment of the $7,000 was feeble at best given Mr. Garrick’s evidence, and entirely inconsistent with what subsequently happened. When Mr. Grant demanded his money back, Mr. Garrick made the promises to pay Mr. Grant back and even gave him an NSF cheque as repayment of the $7,000. At no time did Mr. Garrick tell Mr. Grant that repayment was a matter between Mr. Grant and Mr. Valle or his company – the very position he took during his evidence.

[113] In these circumstances, whether or not Mr. Garrick had an interest in City Design is irrelevant. The fact that Mr. Valle picked up the cheque and it was made payable to City Design is not relevant. Whatever Mr. Valle did or whatever City Design did, they did it on behalf of Mr. Garrick, even according to Mr. Garrick’s own evidence.

Use of the Funds Invested

[114] Mr. Garrick was cross-examined on what he did with Mr. Dimascio’s $100,000. To use the word evasive is an understatement. The answers were anywhere from I have documents to show what I did with the money to I used “part” for equipment, “portion” for the debt on the field, “portion” for Invictas’ purchase fee. When asked for details and specifics – none were forthcoming. At best, Mr. Garrick said that he gave “at least $80,000” to Mr. Valle to invest. There was no further details, no documentation, no further explanations.

[115] At the end of the series of questions, Mr. Garrick said that he would not have taken the money unless he believed he could cover it soon. At the very least, this was an admission by Mr. Garrick that he did not use the funds he received from Mr. Dimascio for the investment he described to Mr. Dimascio but rather for other purposes.

[116] Similarly, with Mr. Crighton’s money, Mr. Garrick eventually admitted he used a portion of the funds he received for the football team and the coaching expenses. Like the funds from Mr. Dimascio, there were no further details, no documentation and no further explanations.

[117] Mr. Garrick tried to explain his failure to give Mr. Crighton shares in Interactive Brokers by saying that Mr. Valle took the money and did not give him shares.

Inability to Repay

[118] Mr. Garrick made much of the fact he wanted to and would have repaid the complainants but for his arrest. This is entirely irrelevant to the central issue in this case, whether the Crown proven beyond a reasonable doubt that Mr. Garrick committed the frauds alleged?

Credibility of Mr. Garrick

[119] Let me deal with Mr. Garrick’s credibility. I have no doubt that Mr. Garrick’s testimony was entirely full of lies. His explanations were vague, were nonsense, were implausible and were contradicted by the documents which Mr. Garrick himself tendered. When confronted with a statement in the documents which confirmed the testimony of the complainants or was inconsistent with his “version”, Mr. Garrick either could not recall having made certain statements or, even worse, suggested the documentation had been altered by someone.

[120] Quite often Mr. Garrick would not answer the questions posed by the Crown or by the court. Mr. Garrick would respond with a litany of details on irrelevant matters. When pressed, Mr. Garrick would revert to vague answers which made no sense. Even worse, Mr Garrick would come up with some explanation that wasn’t helpful. For example, when asked whether he had told any of the complainants he had a private jet, Mr. Garrick denied it. Eventually, he did say that he had “rented” a private jet and the complainants must have assumed he owned it.

[121] Mr. Garrick’s evidence, at rare times, contained minor true details, usually vague, which could not stand up to the scrutiny of providing any details in cross-examination or even when the court gave Mr. Garrick an opportunity to expand on or provide supporting documents which would assist him in his defence.

[122] At times, within minutes of earlier testimony, Mr. Garrick would contradict himself. For example, he testified that Mr. Jackson did not want any money for coaching and had not signed a promissory note. A few minutes later, Mr. Garrick testified that a promissory note he referred to from Mr. Jackson in an email was a promissory note which all coaches had signed for their payment. When asked where it was – there was mostly silence from Mr. Garrick. As a second example, initially, Mr. Garrick suggested to the court that one of the promissory notes produced by Mr. Jackson was not signed by him – it was forged. Then when Mr. Garrick cross-examined Mr. Jackson, there was no serious challenge regarding the promissory note which Mr. Garrick had suggested was forged. When Mr. Garrick testified, there was no evidence of a forged promissory note. When asked about the same promissory note in cross-examination, Mr. Garrick said he did not remember it. But when Mr. Garrick was cross-examined by the Crown on the two advances described in Mr. Jackson’s promissory notes, Mr. Garrick denied he had ever received any money from Mr. Jackson. Mr. Garrick’s evidence and explanations are confusing and inconsistent at best and make no sense.

[123] Sometimes Mr. Garrick’s contradictions took more time to develop. When he first testified, he suggested he had bought the Interactive Brokers share after he had personally investigated the company including a trip to California. When asked how he acquired shares in this private company before the company had gone public in their IPO (and therefore a better price than the $25 per share opening price), Mr. Garrick, seeing a problem with his prior evidence, reverted to a vague explanation that he did not know and simply that he had given the money to Mr. Valle to invest in Interactive Brokers. When he testified a second time two days later, he produced a portion of an SEC draft filing and suggested this was not a typical IPO by referring to the method the SEC used to calculate their fee. This new explanation does not help his defence. It essentially means that there is no reasonable and rational explanation as to how the Interactive Brokers shares could have been purchased for $1 per share by Mr. Garrick. Mr. Garrick simply has no credibility with this court that what he testified to on either occasion was true. He was making up explanations as he went along.

[124] It is an inescapable inference from the evidence of the complainants and Mr. Garrick’s own emails that Mr. Garrick made statements regarding the ability to provide shares in Interactive Brokers to the complainants at $1 per share were false and deceitful statements for the purpose of encouraging the complainants to “invest” with him.

Analysis

[125] Section 380 of the Criminal Code R.S.C., 1985, c. C‑46 reads as follows:

380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject‑matter of the offence is a testamentary instrument or where the value of the subject‑matter of the offence exceeds five thousand dollars; or

(b) is guilty

(i) of an indictable offence and liable to imprisonment for a term not exceeding two years, or

(ii) of an offence punishable on summary conviction,

where the value of the subject‑matter of the offence does not exceed five thousand dollars.

[126] To find Mr. Garrick guilty of fraud, Crown counsel must prove each of these essential elements beyond a reasonable doubt for each of the complainants:

i. that Mr. Garrick deprived or there was a risk of deprivation to the complainant of something of value;

ii. that Mr. Garrick’s deceit, falsehood or other fraudulent means caused the deprivation;

iii. that Mr. Garrick intended to defraud the complainant; and

iv. that the value of the property exceeded $5,000.

[127] “Deceit” is an untrue statement made by a person who knows that it is untrue, or has reason to believe that it is untrue, but makes it despite that risk, to induce another person to act on it, as if it were true, to that other person’s detriment.

[128] “Falsehood” is a deliberate lie.

[129] “Other fraudulent means” is a term that covers more ground than either deceit or falsehood. It includes any other means, which are not deceit or falsehood, properly regarded as dishonest according to the standards of reasonable people.

[130] Justice Thorburn dealt with what constitutes the actus reus and the mens rea requirement for criminal fraud in R. v. McCarthy (2008) 4582 (Sup. Ct.) at paras 12 -20 :

II. A. The Act of Fraud

[12] The act of fraud is made out where:

(a) there is a dishonest act involving deceit, falsehood, or other fraudulent means assessed objectively through the eyes of a reasonable person as dishonest commercial conduct[2], and

(b) deprivation caused by proof of detriment, prejudice or risk of placing the victim’s pecuniary interests at risk, caused by the dishonest act.[3]

[13] In instances of fraud by deceit or falsehood, the accused must, as a matter of fact, have represented that a situation was of a certain character, when, in reality, it was not.

[14] The external circumstances of fraud “by other fraudulent means” are determined objectively: that is, would a reasonable person consider the actions to be dishonest commercial conduct? The words “other fraudulent means” encompass all means that can properly be characterized dishonest and the existence of such means will be determined by what reasonable people consider to be dishonest dealing.[4] Courts have included the non-disclosure of important facts to come within the meaning of “other fraudulent means”.[5] In one case, the court held that the dishonesty was found in the accused’s “intended and planned non-disclosure of the objective reality” of the transactions he was conducting for investors.[6]

[15] Deprivation or the risk of deprivation must also be shown. The act of fraud may be made out even if there was no actual loss to the victim provided there was a risk of loss. Moreover, the risk of economic loss may satisfy the test for the act of fraud even if the accused did not hope or intend that it occur.[7]

[16] There must be a causal connection between the dishonest act and the alleged deprivation[8] or risk of deprivation of property or right to property.[9]

II. B. The Intention to Commit Fraud

[17] To establish the intention to commit fraud the Crown must prove that the accused knowingly undertook acts which constitute the falsehood, deceit, or other fraudulent means, and the accused was aware that deprivation could result from such conduct.

[18] In R. v. Théroux[10] McLachlin J. for the majority, held that:

The ....Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.

The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing provides no defence.

[19] In R. v. Long[11], cited with approval in R. v. Théroux, Taggart J.A. held at p. 174 that:

. . . the mental element of the offence of fraud must not be based on what the accused thought about the honesty or otherwise of his conduct and its consequences. Rather, it must be based on what the accused knew were the facts of the transaction, the circumstances in which it was undertaken and what the consequences might be of carrying it to a conclusion.

[20] The fact that an accused “tells a lie knowing others will act on it and thereby puts their property at risk” is sufficient to permit the inference that the accused had subjective knowledge of the risk of deprivation.[12] Moreover, “The falsehood can consist of a positive act, but also sometimes a mere omission, that is to say a situation where, through his silence, an individual hides from the other person a fundamental and essential element.”[13]

Count #1 - Mr. Scott Jackson

[131] In Mr. Jackson’s case, he made two investments through Mr. Garrick, the first for $5,000 on January 11, 2007 and the second for $4,000 on February 16, 2007.

[132] I do not accept Mr. Garrick’s evidence that he did not receive monies from Mr. Jackson. Mr. Garrick’s testimony, in light of all the testimony, does not leave me with any doubt that the monies were given to Mr. Garrick by Mr. Jackson in the amounts set out in the notes signed by Mr. Garrick. The Crown has established beyond a reasonable doubt that these two advances were made by Mr. Jackson to Mr. Garrick on the dates of the promissory notes.

[133] The evidence is that Mr. Garrick told Mr. Jackson he would be investing these monies (both advances) in the Interactive Brokers IPO. The uncontroverted evidence is that Mr. Garrick did not do so. His own evidence was that he had no idea whether he had ever acquired a share in Interactive Brokers establishes beyond a reasonable doubt that he did not do with Mr. Jackson’s money as he told Mr. Jackson he would. The money must have gone somewhere else. I am satisfied that the Crown has established that the deceitful and fraudulent act in this case was the false statement Mr. Garrick made to Mr. Jackson as to where he would be investing the funds, the Interactive Brokers IPO, to get him to advance the funds.

[134] Further, Mr. Garrick falsely represented to Mr. Jackson that the investment was risk free and he could get him money back anytime. This was obviously not true.

[135] If necessary, I would have found that Mr. Garrick also used deceit and a fraudulent statement to get Mr. Jackson to make the second investment when Mr. Garrick offered Mr. Jackson a job through Denzcorp, a company which Mr. Garrick admitted did not exist in Canada, US or the UK. This “offer” was intended to show Mr. Jackson that Mr. Garrick was a wealthy and successful business person.

[136] The statements were deliberately made by Mr. Garrick that Mr Jackson’s money would be invested in the Interactive Brokers IPO. This was intended by Mr. Garrick and did lead to Mr. Jackson investing and losing his money.

[137] There was a deprivation and it was for more than $5,000.

[138] The Crown has established all the essential elements of fraud over $5,000 on this count.

[139] There will be a finding of guilt on Count #1.

Count #2 - Mr. Achilles Dimascio

[140] Mr. Dimascio gave Mr. Garrick the following sums of money on the following dates:

• January 30, 2007 $7,000

• February 6, 2007 $30,000

• May 1, 2007 $3,000

• May 5, 2007 $10,000

• May 8, 2007 $50,000

[141] Prior to the first advance on January 30, 2007, Mr. Garrick had made fraudulent statements which included that:

• Mr. Garrick was wealthy – there is no dispute Mr. Garrick was not a wealthy man in 2007;

• Mr. Garrick was a doctor – there is no dispute Mr. Garrick is not a doctor;

• Mr. Garrick was a very successful business person having made millions through Google and Synchronous Technologies – if Mr. Garrick had made money on these stocks his wealth and success certainly did not continue into 2007;

• Mr. Garrick had many business and political influential friends – Mr. Garrick admitted that portions of his emails which referred to his connections with business and political persons were not true;

• Mr. Garrick was an insider in Interactive Brokers – Mr. Garrick doesn’t even know if he ever owned a share in Interactive Brokers;

• Mr. Garrick had 800,000 shares in Interactive Brokers – Mr. Garrick doesn’t know if he ever owned a share in Interactive Brokers and even on his version of events, it would not have been 800,000 shares; and

• Mr. Garrick could make available to Mr. Dimascio shares of Interactive Brokers at $1 per share prior to the shares going public.

[142] The dishonest acts of Mr. Garrick continued right through until May 8, 2007, but Mr. Garrick built upon his prior fraudulent and deceitful acts which included:

i. Mr. Garrick had donated to the Hospital for Sick Children’s Foundation the sum of $8,000,000 – this was not true;

ii. Mr. Garrick had set aside $16,000,000 for purchases for the Invictas football team – a statement which is not true;

iii. The number of wealthy and successful business persons Mr. Garrick was connected to were the top tier of the business elite and at least one respected him enough to ask him to be on their board – this was not true;

iv. Mr. Garrick arranged for Mr. Dimascio to speak with his banker – who confirmed the money was coming – this was not true it was a friend of Mr. Garrick with whom he held a joint account;

v. Mr. Garrick had funded $16,000,000 through a lawyer at a major law firm for various acquisitions – this is not true and is a portion of the emails Mr. Garrick denies he sent; and

vi. Mr. Garrick was wealthy enough to hire Mr. Dimascio at $350,000 per year, which salary would be fully paid to Mr. Garrick’s bank and held in trust – this is not true.

[143] The fraudulent and deceitful acts were made by Mr. Garrick knowingly and with the intention to encourage Mr. Dimascio to invest more.

[144] There was a deprivation and it exceeds $5,000.

[145] I do not accept Mr. Garrick’s evidence in connection with Mr. Dimascio and it does not raise any reasonable doubt that he intended to and committed the fraudulent and made the deceitful and untrue statements.

[146] The Crown has established all the essential elements beyond a reasonable doubt.

[147] Mr. Garrick is guilty on Count #2.

Count #3 - Mr. Kenneth Crichton

[148] Mr. Crichton agreed to give Mr. Garrick the sum of $30,000 on May 6, 2007. He provided some of the money that evening and the balance over the next short period of time.

[149] At the time Mr. Crichton agreed to give Mr. Garrick the money, Mr. Garrick had committed the following fraudulent acts or made the following deceitful statements:

i. Mr. Garrick was a wealthy, successful business person with Denzcorp as one of his corporations;

ii. Denzcorp was successful and had persons like Ted Roger’s daughter on its board – Denzcorp being a company which did not exist in Canada or US;

iii. Mr. Garrick had set aside $25,000,000 for the Invictas football team – a statement which Mr. Garrick denies making and admits it is not true; and

iv. Mr. Garrick could make shares in Interactive Brokers available to Mr. Crichton at $1 per share prior to the shares going public.

[150] I will not repeat why these statements were false and deceitful.

[151] The fraudulent and deceitful acts were made by Mr. Garrick knowingly and with the intention to have Mr. Crichton invest monies with Mr. Garrick.

[152] The amount exceeds $5,000.

[153] I do not accept Mr. Garrick’s evidence in connection with Mr. Crichton and it does not raise any reasonable doubt that he intended to and committed the dishonest acts described above.

[154] Based on all of the evidence, the Crown has established all the essential elements beyond a reasonable doubt.

[155] Mr. Garrick is guilty on Count #3.

Count #4 - The School Board – Mr. Grant

[156] The facts involving Mr. Grant were significantly different than the other complainants. Except for an implication arising from Mr. Garrick’s attempt to buy the exclusive rights to the school’s field (suggesting he had the financial resources to do so), Mr. Garrick did not use his alleged wealth, success or business and political connections to persuade Mr. Grant to part with a $7,000 cheque from the school board.

[157] Mr. Grant relied on Mr. Garrick’s statement that he had bought a scoreboard that the school could acquire it from him by giving him $7,000 and the invoice showing the scoreboard had been purchased.

[158] At the heart of this charge is whether there ever existed a scoreboard.

[159] The Crown has the onus to show that there was no scoreboard. There is no other dishonest statement or act to which the Crown can point to.

[160] The Crown’s evidence, at its best regarding whether the scoreboard existed, is that Mr. Grant contacted the supplier and was told there was no record of this purchase. That is hearsay evidence and not evidence there was no purchase of the scoreboard by Mr. Garrick, his companies or his associate.

[161] I am left with a great deal of scepticism that the scoreboard ever existed. While I do not accept Mr. Garrick’s evidence on this issue, considering all of the evidence, I am left with a reasonable doubt as to whether the scoreboard had been purchased and existed when Mr. Garrick agreed to get the scoreboard for Mr. Grant’s school in return for the $7,000. The Crown has not established all of the essential elements beyond a reasonable doubt in connection with this count.

[162] As a result, Mr. Garrick is not guilty on Count #4.

Conclusion

[163] Mr. Garrick is:

i. Guilty on Count #1 – Mr. Jackson;

ii. Guilty on Count #2 – Mr. Dimascio;

iii. Guilty on Count #3 – Mr. Crichton; and

iv. Not-Guilty on Count #4 – Holy Trinity High School

Ricchetti, J.

Released: January 30, 2012.

COURT FILE NO.: JJ 94/09

DATE: 2012-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

Walter Ellington GARRICK

Defendant

REASONS FOR JUDGMENT

Ricchetti, J.

Released: January 30, 2012