ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1441/11
DATE: 2013 09 03

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Morris, for the Crown

Applicant

• and -

JOHNNATHAN HUNTER

Talman Rodocker, for the Respondent

Respondent

HEARD: July 26, 2013

RULING – CROWN APPLICATION AT SENTENCING HEARING
TO ADMIT EVIDENCE OF ADDITIONAL VICTIMS

Sproat, J

Introduction

1Mr. Hunter was convicted of offences that can generally be described as advance fee or “grandparent” scams. These involve a person, often elderly, receiving a telephone call from a person posing as a relative. The victim is then told the relative is in urgent need of funds. The victim then transfers funds which are picked up by the fraudster.

2At trial the Crown called evidence from approximately 20 complainants alleging frauds most of which were committed in the October – December, 2009 time period. On the sentencing hearing the Crown wishes to introduce the evidence of 21 additional fraud victims in the same time period.

3The Crown notes that Mr. Hunter had Western Union Money Transfer Control Numbers (MTCNs), recorded in a notebook entered in evidence at trial, which contained the MTCNs of the additional victims the Crown wishes to prove as part of the sentencing.

4The Crown relies upon s. 725(1) (c) of the Criminal Code which provides:

725(1) In determining the sentence, a court

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

Legal Principles and Analysis

5In R. v. Edwards 2001 24105 (ON CA), [2001] O.J. No. 2582 (O.C.A.) Rosenberg J.A. began his analysis by identifying the need to reconcile the principle that an offender may not be punished for untried offences with the principle that the court may consider the background and character of the offender and the circumstances of the offence. Referring to s. 725(1)(c) he stated:

… the occasions on which this procedure may be invoked are carefully circumscribed by the requirement that the facts form part of the circumstances of the predicate offence.

6Rosenberg J.A. provided two examples:

(a) in sentencing for dangerous driving causing death taking into account the offender’s blood alcohol exceeded the legal limit;

(b) in setting parole eligibility for murder considering that in addition to murder the offender stabbed two additional victims.

7In R. v. Larche 2006 SCC 56, [2006] 2 S.C.R. 762 Fish J. for the court stated that there are two general categories of cases where a sufficient connection exists to invoke s. 725(1)(c). The first category is where the other offence is connected in time, place or both. Fish J. also made reference to a “single transaction” and res gestae in explaining the first category. The examples cited by Rosenberg J.A. in Edwards would fall into this category.

8The additional victims the Crown seeks to prove at the sentencing hearing are not so closely connected in time or place that they can be viewed as part of a “single transaction” and cannot be viewed as part of the res gestae of the conduct of Mr. Hunter that resulted in conviction.

9Fish J. described the second category of cases in which s. 725(1)(c) can be invoked as follows:

55 "Facts" (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct.

10The reference by Fish J. to “system or an unbroken pattern of similar conduct” reflects that the evidence is admitted to inform the sentencing of the offender.

11The additional victims alleged by the Crown are relatively proximate in time. Given that we already have evidence of 20 victims, adding evidence concerning 20 more victims has little additional probative value.

12Section 725(1)(c) has been invoked in Ontario in R. v. Shin, 2012 ONSC 6293, 272 C.R.R. (2d) 120., R. v. Kaziuk, 2011 ONCJ 851, R. v. Reid, 2006 CarswellOnt 5414 (C.A.), aff’g 2004 CarswellOnt 9685 (S.C.J.) and R. v. Edwards, (2001), 2001 24105 (ON CA), 155 C.C.C. (3d) 473 (Ont. C.A.) and elsewhere in R. v. Vukaj, 2013 BCSC 79; R. v. Truong, 2012 ABQB 661; R. v. Leung, 2012 ABPC 158; R. v. Burns, 2010 SKPC 72, 360 Sask.R. 295; R. v. Ross, 2010 BCCA 314, 289 B.C.A.C. 86, aff’g 2008 BCSC 854, 78 W.C.B. (2d) 190; R. v. Gwyn, 2009 ABPC 212; R. v. Khan and Chtirkova, 2009 BCPC 114; R. v. Wheeler, [2007] 75 W.C.B. (2d) 293 (NL Prov. Ct.); R. v. Kobelka, 2007 ABPC 112, 416 A.R. 352, rev’d 2007 ABCA 405; R. v. Innes, 2007 ABPC 237, 423 A.R. 14, aff’d 2008 ABCA 129, 231 C.C.C. (3d) 48; and, R. v. Roberts, 2006 ABCA 113, 208 C.C.C. (3d) 454., the leave to appeal to S.C.C. refused.

13None of these cases provide any support for what the Crown proposes to do in this case which is to call additional complainants, who could have given evidence at trial, to give evidence relevant to establishing the charges in the indictment.

14In my view s. 725(1)(c) was not intended to permit the Crown to split its case in this manner.

15Further, the additional requirement in 725(1)(c) is that the facts “could constitute the basis for a separate charge”. The position of Mr. Rodocker, with which I agree, is that the frauds on these additional victims could not constitute the basis for a separate charge. In this context “separate” must mean separate or different from the charges on which the offender has been convicted. In our case the evidence of additional victims would be additional evidence that could have been adduced to prove the charges before the court.

16Further, and in any event, s. 725(1)(c) gives me a discretion whether to consider evidence concerning additional victims. If, contrary to my conclusion, s. 725(1)(c) is available I would not exercise that discretion. In Larche, at para. 49, Fish J. cautioned that care must be taken to ensure that the sentencing hearing is not transformed into a “trial within a trial”. In my view that is what would result if the Crown application is granted. Given the time spent at trial hearing from approximately 20 complainants, hearing from 20 more is likely to take a week or more. That was certainly not contemplated in the original trial scheduling which is also a factor to consider.

Conclusion

17Apart from the 21 additional complainants the Crown wishes to call evidence from Detective Spratt. I have a general understanding of the proposed evidence, which is that it relates to Detective Spratt’s interpretation of entries in the seized notebooks as well as evidence concerning prior convictions of Mr. Hunter. Detective Spratt has experience in investigating frauds generally and Mr. Hunter in particular. I think he may well be in a position to provide an interpretation of the seized notebooks that would otherwise not be immediately apparent.

18I will not comment further on Detective Spratt’s proposed evidence at this time as I have only a general understanding of its nature and scope. I therefore, cannot possibly make a prospective order as to what is, and is not, admissible.

Sproat, J