COURT FILE NO.: CR-15-70000235-0000 DATE: 20160630 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – FRED CURRERI and LINDA LAWLOR Accused

Counsel: Scott Patterson, for the Crown Matt Fisico, for the Accused, Fred Curreri Larry Lebovits, for the Accused, Linda Lawlor

HEARD: March 21, 2016 to April 4, 2016

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND

The Charges and Trial Proceeding

[1] Fred Curreri and Linda Lawlor are charged under s. 380(1)(a) of the Criminal Code that during the period from April 3, 2006 to November 30, 2007 they committed a fraud over $5,000 against Fred A. Curreri, date of birth April 17, 1913. The accused Fred Curreri is the son of the now deceased Fred Anthony Curreri. His date of birth is May 7, 1947. To avoid confusion I will throughout the decision refer to the accused as “Mr. Curreri” and his father as “the elder Fred Curreri” or “the father” where appropriate.

[2] This was an eight-day judge-alone trial. Mr. Curreri called a defence in which he testified. Ms. Lawlor called no defence.

ISSUES

(a) Did the Crown prove beyond a reasonable doubt that the accused Mr. Curreri committed fraud over $5,000?

(b) Did the Crown prove beyond a reasonable doubt that Linda Lawlor committed fraud over $5,000?

THE EVIDENCE

The Discovery of the Fraud

[3] The basic facts are that Ms. Lawlor and Mr. Curreri were involved with others in the fraudulent transfer and mortgaging of properties owned by the elder Fred Curreri. Eight properties in Toronto and Ajax, Ontario are involved. The street addresses of the elder Fred Curreri’s properties that were caught by the fraud are:

• 28 Ruden Crescent
• 1246 St. Clair West
• 200 Harwood Avenue
• 37 Station Street, Ajax
• 35 Station Street, Ajax
• 132 Harwood Avenue
• 350 Eglinton Avenue West
• 1446 Danforth Avenue

[4] Mary Zadorozniak, the daughter of the elder Fred Curreri and the accused’s sister, lived with her parents and brother at the family home at 28 Ruden Crescent in Toronto until 1980. The family moved into that home in 1969. The mother, Marie Curreri, died on January 26, 1980. Mr. Curreri lived with his father at the family home until 2007/2008. When the fraud was discovered in 2009 the father was 96 years of age. His son was no longer living with him at that time.

[5] On a Sunday in February 2009 Ms. Zadorozniak made her usual visit with her father at the family home. During that visit her father spoke to her about making provisions after his death for the payment of his funeral expenses and any estate taxes that would be payable. He suggested that the family home be sold to cover these expenses. When speaking to his daughter about this, the father was not certain whether title to the property was in his sole name or in the names of both he and his deceased wife’s estate. Ms. Zadorozniak undertook to have her friend, a real estate agent, assist with investigating the title to 28 Ruden Crescent.

[6] The title search disclosed that in 2006 the title to the home was transferred from the elder Fred Curreri’s name to that of Linda Lawlor. Ms. Zadorozniak grew concerned and retained a lawyer to look into all the properties her father and mother owned. It was discovered that the titles to all her father’s properties were in strangers’ names and that the properties had been mortgaged to persons unknown to the father.

[7] The elder Fred Curreri had given no permission to anyone to transfer and mortgage his properties. He grew very angry as he realized the implications of what had happened. The lawyer recommended that Ms. Zadorozniak and her father take the matter to the police. She went to the police on March 17, 2009.

[8] The father and Ms. Zadorozniak gave statements to the police on April 14, 2009. The father died on September 21, 2009.

[9] Ms. Zadorozniak spoke to her brother over the telephone after she and the father went to the police. She testified that when she confronted her brother about transferring the properties and about the mortgages on title, the brother got angry and told her to mind her business and that everything is fine. Mr. Curreri confirmed his sister’s evidence that he called her. He said Tito Di Vincenzo, whom I will introduce later, told him to call her because there were some problems. Mr. Curreri told her that he would be making a lot of money because of investments. He said not to worry, that the mortgages were being paid and that none were in default.

The Accused Mr. Curreri’s Background

[10] Mr. Curreri is currently 68 years of age. His name is the same as his father’s, Fred Anthony Curreri. Various pieces of identification show his name as Fred Anthony Curreri and Fred A. Curreri. He has a grade 12 education. He testified he repeated either grade four or six. Mr. Curreri lived at home with his father until he was in his fifties. While living at 28 Ruden he paid no rent or room and board. His father provided food and shelter for him. Mr. Curreri has never been married and has no children.

[11] Mr. Curreri does not have an expansive employment history. He worked in his father’s wholesale fruit business when he was young. He also worked in his uncle’s card and stationery business for about 33 years until he was fired in 2003. He at first worked stocking the shelves and delivering office supplies. He then graduated to being the assistant manager. As the assistant manager he supervised other employees and was responsible for banking. Mr. Curreri also worked at a demolition job which he left in 2006. He has been unemployed since then.

[12] Mr. Curreri also assisted his father with managing his properties when his father was away, collecting rent, paying the bills and doing the banking.

Mr. Curreri Meets Tito Di Vincenzo

[13] For entertainment Mr. Curreri would frequent a sports café which was an off-track horse race betting establishment. He met some of the others involved in the fraudulent transactions while hanging out at the café. He met Tito Di Vincenzo in around 2002 through Angelo Sara, Mr. Di Vincenzo’s cousin. In about 2004, Mr. Curreri and Mr. Di Vincenzo became partners in a business called Curreri Investments. Mr. Curreri testified Mr. Di Vincenzo took him to Newmarket to register the business where Mr. Di Vincenzo made all the arrangements and dealt with the paperwork. Mr. Curreri was made president of the company.

[14] Mr. Di Vincenzo then took Mr. Curreri to CIBC and RBC branches to open accounts for Curreri Investments. Mr. Curreri testified that he and Mr. Di Vincenzo both had cheques and bank cards for the business account. Mr. Curreri testified he had never registered a business or opened a business account before.

[15] Mr. Curreri testified what he knew about the business was that he was supposed to make money from “mortgaging investments” but said he did not know what “mortgaging investments” involved. He said the business was Mr. Di Vincenzo’s idea and Mr. Di Vincenzo took care of the investments. Mr. Di Vincenzo introduced Mr. Curreri to a friend of his, Robert Ricciotti. Mr. Curreri also met real estate lawyers, Harry Greenberg and Esse Zandi, and their legal assistant, Linda Lawlor, through the various property transactions, all of whose involvement with the properties I will discuss below.

The Land Titles System

[16] Crown counsel called Ken Crawford as a witness to testify about the land titles system in Ontario. Currently retired, Mr. Crawford worked for 30 years for Service Ontario as a legal and technical analyst investigating fraud in land registrations.

[17] Mr. Crawford explained the function of the Teraview software used in the land titles system, which software was created by the company, Teranet. This is an electronic software application used to register instruments on title to land. This system replaced the prior paper-based system. The new system began to be used in around the 1980s and in around 2006 the electronic system was almost exclusively being used for land registry in Ontario.

[18] Before 2008 anyone who applied to Teranet to obtain the Teraview software could register and sign instruments on title as long as a lawyer in good standing signed any required statements of law.

[19] In 2008 the system became more restrictive as to who could submit and sign title instruments. An application was required to be made to the Director of Land Registration, which application required that certain criteria as to identity, financial resources and good character be satisfied. Applicants that meet the criteria are granted a Personal Security Licence (a “PSL”) by the Director authorizing them to access the system.

[20] With the new system each licence holder is assigned a unique access code number which, by using a USB stick, they can access the system to search titles, create title instruments for registration, and submit and sign instruments. Mr. Crawford emphasized the importance of licensees securing their access code in the same way as one would secure their bank card PIN number to prevent misuse by others.

Linda Lawlor’s Position as a Legal Assistant

[21] Ms. Lawlor first comes into the picture in relation to the fraud allegations when she worked for Mr. Greenberg as a legal assistant in his real estate law practice. Before the electronic system came into being Ms. Lawlor worked for Mr. Greenberg as a conveyancer. Mr. Greenberg described himself as an old hand who has been practising real estate law for some 44 years. Ms. Lawlor worked for him during the ten-year period from about 1996 until around the end of 2006 when she was fired. Ms. Lawlor was not fired because of the allegations of fraud since Mr. Greenberg did not learn of it until 2009. He terminated her employment because the quality of her work began to decline in 2006.

[22] Ms. Lawlor’s job involved handling title searches and registering properties in the land titles system. Mr. Greenberg never performed any electronic land transactions. He admitted to lacking technical skills with computers and the new electronic land titles system. He testified that once he reviewed the documentation and authorized a transaction, he relied absolutely on Ms. Lawlor to use the electronic system to register and sign instruments.

[23] Mr. Greenberg allowed Ms. Lawlor to use his access code which meant she would use Mr. Greenberg’s PSL to register documents after Mr. Greenberg reviewed them. Mr. Greenberg’s business address appears on documents registered by Ms. Lawlor while she was employed there.

Dealings with the Elder Fred Curreri’s Eight Properties

28 Ruden Crescent

The Family Home

[24] As noted earlier, the family moved into 28 Ruden in 1969. The elder Fred Curreri and his wife owned the property jointly. When the wife died in 1980 the elder Fred Curreri became the sole owner. He lived there until his death in 2009. There were no mortgages or other charges on the property until the fraudulent transfer and mortgage were effected. Ms. Zadorozniak described the home as situated in an upscale neighbourhood in Toronto and as being very large at about 5,000 square feet with three storeys and 14 rooms.

The Transfer and the RBC Mortgage

[25] Mr. Zandi is a lawyer practising real estate law. He was involved with transactions in relation to 28 Ruden, and as will be seen, also 200 Harwood, 350 Eglinton, 37 Station and 1446 Danforth. Mr. Zandi also goes by the name Goharrizi Saeid Zandi and is registered under both names with the Law Society of Upper Canada. Mr. Zandi explained that he left Iran as a refugee and had to change his name in order to leave that country. The property documents contain the name Goharrizi Saied Zandi.

[26] At the relevant time of the fraudulent activities his office was located at 15 Poyntz Avenue in Toronto. Mr. Zandi testified he and Mr. Greenberg at times acted on opposite sides of real estate transactions. Mr. Zandi testified he met Ms. Lawlor before he met Mr. Greenberg. He indicated she came to work for him as a legal assistant on a part-time basis from late 2001 to mid-2005.

[27] Mr. Zandi testified that he met Mr. Curreri for the first time when Ms. Lawlor brought him to his office in 2006. Mr. Curreri denies that Ms. Lawlor took him to Mr. Zandi’s office. Mr. Curreri’s evidence is that Mr. Di Vincenzo took him there. Mr. Zandi said Mr. Curreri was looking to obtain mortgage financing on 28 Ruden.

[28] Mr. Zandi prepared the following documents for the transaction: two Acknowledgments and Directions dated April 3, 2006, one signed by Ms. Lawlor and the other by Mr. Curreri; a Consent to Act Re Conflict dated April 3, 2006 signed by Ms. Lawlor and Mr. Curreri; an Acknowledgement to RBC dated April 3, 2006; and a Statutory Declaration dated April 4, 2006 signed by Ms. Lawlor and Mr. Curreri declaring, among other things, Ms. Lawlor the trustee and Mr. Curreri the beneficial owner on title to 28 Ruden.

[29] Mr. Zandi described Mr. Curreri as his client and thought Ms. Lawlor might have been his client because he prepared the transfer, the trust and the mortgage documents for both of them.

[30] The transfer documents disclose that on April 3, 2006 28 Ruden was transferred from “Fred Anthony Curreri” of 28 Ruden Crescent, to Ms. Lawlor, in trust, with “Fred Anthony Curreri” as the beneficial owner. There is no date of birth for “Fred Anthony Curreri”. The evidence is that Mr. Curreri produced as identification for Mr. Zandi his driver’s licence containing his name “Fred A. Curreri” and his date of birth, May 7, 1947. The charge document shows 1054 Centre Street, Thornhill as Ms. Lawlor’s address which was not her home address.

[31] Mr. Zandi used a conveyancer, Gordon Bhatia, and his company, G. Bhatia Conveyancing, in relation to the transfer of 28 Ruden. Mr. Zandi described how he dealt with real estate transactions. He said he would meet with the clients to have them execute documents and then send the documents to Mr. Bhatia for registration. Mr. Zandi gave his PSL code to Mr. Bhatia to allow him to register transactions. It was Mr. Bhatia who submitted the registration and signed off on the 28 Ruden transfer.

[32] Ms. Lawlor applied with RBC for a mortgage on 28 Ruden. Sheila Wilson, a fraud investigator for RBC called by the Crown, testified that it is the client that completes and signs mortgage applications. Ms. Lawlor was a client of RBC before she took out the mortgage. On the application she misrepresented that 28 Ruden was her residential address. The fact is Ms. Lawlor never lived at 28 Ruden. Neither the Elder Fred Curreri nor the son knew Ms. Lawlor. Mr. Greenberg is indicated as the lawyer on the application. Ms. Lawlor indicates she was employed as a legal assistant with Mr. Zandi’s law firm.

[33] Ms. Lawlor took out a mortgage of $500,932.50 on 28 Ruden with RBC on April 1, 2006. Mr. Zandi delivered the funds to Ms. Lawlor through a cheque drawn on his firm’s TD account and the funds were deposited into Ms. Lawlor’s personal account # 35101783 at RBC. Mr. Bhatia submitted and signed off on the mortgage on 28 Ruden. The funds were then transferred to Ms. Lawlor’s personal TD account.

Ms. Lawlor’s Personal TD Bank Account # 0110635

[34] The Crown called Oscar Mui, a production order specialist with TD. He testified about Ms. Lawlor’s personal TD bank account # 0110635 where the mortgage funds from the RBC mortgage on 28 Ruden were deposited.

[35] On April 3, 2006 before the deposit of the mortgage funds Ms. Lawlor`s bank account balance was $73.42. On April 3rd mortgage funds of $500,932 were deposited. On the same day there were numerous withdrawals by Ms. Lawlor for personal retail items, expenses and bills. At the end of April 3rd there was a balance of $490,949.

[36] There were large drafts written on the account to Mr. Curreri: dated April 4th in the amount of $20,000; dated April 20th in the amount of $60,000; dated April 25th in the amount of $70,000; and dated May 9th in the amount of $65,000. There was a draft payable to Angelo Sara, Mr. Di Vincenzo’s cousin, dated April 4th, in the amount of $200,000.

[37] By November 5, 2006 there was $684.18 in Ms. Lawlor’s TD account.

TD Business Account # 521053 for 1695287 Ontario Inc.

[38] Mr. Mui also testified about another TD account.

[39] In around October 2, 2006, a TD corporate account was opened for a numbered company 1695287 (“169”). The account application discloses Ms. Lawlor as the president, director and owner of the company, Mr. Di Vincenzo as the manager, and Ms. Motyczka-Fiore as the signing officer. All three had authority to sign and deal with the account. The purpose of the company according to the corporate profile is to provide real estate consulting services. The address for service is 1054 Centre Street, Thornhill. Ms. Lawlor is the contact person for the company.

[40] Among the transactions on the account is a large deposit which resulted in the balance increasing from zero on October 2, 2006 to $235,937.82 on November 30, 2006. The funds were deposited by way of a draft drawn on Mr. Zandi’s law firm’s account.

The Investigation of Mr. Zandi by RBC

[41] As noted earlier, the Crown called as a witness Sheila Wilson, a fraud investigator with RBC. Ms. Wilson learned of the fraudulent transactions in 2009 after irregularities were discovered in the bank records associated with the 28 Ruden mortgage. By two letters dated in April 2009 Ms. Wilson inquired with Mr. Zandi about the 28 Ruden mortgage and requested a list of documents connected to that transaction.

[42] Ms. Wilson was particularly concerned with the fact that Mr. Zandi represented all three parties on the transaction, Mr. Curreri, Ms. Lawlor and RBC, without getting the permission of the bank. Ms. Lawlor was indicated as the borrower on the mortgage application and Mr. Curreri was not mentioned at all. As well, the bank was not aware and did not consent to the trustee arrangement between Ms. Lawlor and Mr. Curreri.

Mr. Zandi’s Law Society Discipline Hearing

[43] Mr. Zandi came before the Law Society in a discipline hearing on December 2, 2015 for his dealings with five of the father’s properties including 28 Ruden. I will deal below with his involvement with the other properties. With respect to 28 Ruden, in a decision released on March 1, 2016, the Law Society found, and Mr. Zandi admitted, that he failed to make proper inquiries into Mr. Curreri’s ownership of the property and failed to make a material disclosure to RBC about the borrower, Ms. Lawlor, holding the property as trustee.

[44] The Law Society did not find Mr. Zandi to be a party to the fraud but rather that he was deceived by Mr. Curreri and Ms. Lawlor. Mr. Zandi admitted to professional misconduct in relation to the five property transactions. He was fined $25,000.

1246 St. Clair West

[45] In 1994 the elder Fred Curreri transferred 1246 St. Clair to his son. In 2004 after Mr. Di Vincenzo and Mr. Curreri established their company, Curreri Investments, a $200,000 mortgage was placed on title. Mr. Curreri testified he thought Mr. Di Vincenzo placed a mortgage on the property but insisted he was not involved with the transaction. He said he did not understand what “mortgaging” a property means and that Mr. Di Vincenzo took care of that.

[46] The father learned of the mortgage. Mr. Curreri stated that his father got furious. A few months after the mortgage was placed the father discharged the mortgage and transferred the property back into his name.

[47] Three years later on November 22, 2007, the 1246 St. Clair property was transferred by Ms. Lawlor. The instrument shows the property was transferred to “Fred Curreri” and Kristina Motyczka-Fiore as joint tenants. This transfer occurred after Ms. Lawlor had left her position with Mr. Greenberg. Ms. Lawlor now had her own PSL to perform transactions in the land titles system. Ms. Lawlor’s name and home address appear on the transfer instrument which shows that she submitted the registration and signed off on the transfer.

[48] Mr. Greenberg’s law office was involved with a mortgage on the property. Mr. Curreri and Mr. Di Vincenzo attended Mr. Greenberg’s office seeking a mortgage and they spoke of security for the mortgage. Mr. Greenberg testified Mr. Curreri had not previously been his client.

[49] Mr. Greenberg recalled that the younger man, Mr. Di Vincenzo, did most of the talking. Leroy Mc Quaid, a client of Mr. Greenberg, advanced a mortgage loan against 1246 St. Clair. On December 22, 2008 a mortgage of $260,000 was placed on the property with “Fred Curreri” and Ms. Motyczka-Fiore as the mortgagors.

[50] Mr. Greenberg testified that Mr. Mc Quaid was a very friendly person who often came by his office. He perceived that Mr. Mc Quaid and Ms. Lawlor became quite good friends. Mr. Greenberg did not observe any relationship or connection between Ms. Lawlor and Mr. Curreri.

[51] The mortgage instrument shows Mr. Greenberg’s name and business address in relation to both the submission of the registration and the signing off on the charge.

200 Harwood Avenue

[52] From 1955 the property at 200 Harwood was owned by the elder Fred Curreri and his wife as joint tenants until her death in 1980. Before a property can be transferred to a surviving joint tenant a survivorship application is required to be made. A survivorship application was made on December 8, 2008 with the applicant shown as “Fred Anthony Curreri”, residing at 1054 Centre Street, Thornhill. Mr. Curreri testified he was not familiar with that address and that he lived at 28 Ruden at that time. There is no date of birth for the applicant. The application was submitted by Mr. Bhatia’s company and signed off by Mr. Zandi.

[53] Crown counsel pointed out to Mr. Zandi that Fred Curreri, the accused, would have been eight years old when in 1955 the parents entered into a joint tenancy on 200 Harwood. This, Crown counsel suggested, should have piqued Mr. Zandi’s interest. Mr. Zandi had little to say about this.

[54] On December 11, 2006 a mortgage in the amount of $252,500 was registered on title to 200 Harwood, with Mr. Mc Quaid recorded as the mortgagee and “Fred Anthony Curreri” as the mortgagor. There is no date of birth for the mortgagor. Mr. Curreri’s address on the mortgage instrument is 1054 Centre Street, Thornhill.

[55] The registration of the Mc Quaid mortgage was submitted by Mr. Greenberg’s law office and Ms. Lawlor, still working for Mr. Greenberg, signed off on the mortgage.

[56] A further mortgage was registered on 200 Harwood on July 11, 2008 in the amount of $100,000 with Mohin Pourghandehari as the mortgagee and “Fred Anthony Curreri” as the mortgagor with no date of birth recorded. The registration of the latter mortgage was submitted and signed by Mr. Bhatia and his company.

37 Station Avenue

The Transmission, Transfer and Mortgage

[57] Mr. Zandi was also involved with the transmission, transfer and mortgaging of 37 Station. This is a property once owned by Mr. Curreri’s mother before her death on May 12, 1980. On her death the property went to her husband, Fred Curreri, as the personal representative of his wife’s estate. Before any transfer of the property could be undertaken the property had first to be transmitted from the personal representative to the legal ownership of the applicant.

[58] A Transmission by Personal Representative of the property, purportedly from the elder Fred Curreri as personal representative, purportedly to the elder Fred Curreri as the legal owner, was effected on July 4, 2007. The applicant on the Transmission by Personal Representative is shown as “Fred Curreri” with no date of birth noted.

[59] The transfer of the property took place on August 28, 2008. The transfer, purportedly from the elder Fred Curreri, as transferor, purportedly to the elder Fred Curreri as transferee, was submitted for registration by Mr. Bhatia and signed by Mr. Zandi. The transferor is noted as “Fred Curreri” with no date of birth noted. The date of birth for the transferee is shown as May 7, 1947. Both transferor and transferee have a common address for service.

[60] On August 29, 2007 Leroy Mc Quaid advanced a mortgage of $100,000 on the property. The mortgagor is shown as “Fred Curreri” with no date of birth noted.

[61] It was actually Fred Curreri, the accused, who appeared at Mr. Zandi’s office and not the elder Fred Curreri. Mr. Zandi did not recall if Mr. Di Vincenzo was with Mr. Curreri. Mr. Curreri testified Mr. Di Vincenzo attended with him. The transmission and transfer were submitted for registration by Mr. Bhatia and signed by Mr. Zandi.

Testimony of Mr. Zandi

[62] Mr. Zandi was questioned about his appreciation of the implications of a Transmission by Personal Representative and the statements of law on the instrument. Mr. Zandi acknowledged that he signed the statements of law as to the date of death of the testator, that the applicant is entitled by law to be the owner as the estate trustee of the deceased’s property, and that the applicant is appointed as estate trustee without a will.

[63] Mr. Zandi was asked whether he confirmed that Mr. Curreri who attended his office was the person appointed as estate trustee without a will. Mr. Zandi said he did and that Mr. Curreri physically gave him the letters probate and he reviewed it. He said he was not aware he had to confirm the statements of law about the applicant being appointed as estate trustee without a will. He admitted to not asking for and reviewing the will and that he did not look at any background documentation besides the letters probate. Under cross-examination by Mr. Curreri’s counsel Mr. Zandi went so far as to assert he thought the letters probate was the will.

[64] As discussed above, this is one of the issues with Mr. Zandi’s practice that the Law Society was concerned about. As will be seen, in addition to 37 Station, there were transmissions and transfers with 250 Eglinton and 1446 Danforth.

[65] Mr. Zandi testified Mr. Curreri presented his driver’s licence as identification which bore the name “Fred A. Curreri” and the letters probate contained the name “Fred A. Curreri”. He assumed the Fred Curreri in his office was the estate trustee. He identified that the person who came to his office is the accused before the court.

[66] I allowed an application under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 for Crown counsel to cross-examine Mr. Zandi about his evidence that he saw the letters probate before he signed the Transmission by Personal Representative. At the preliminary inquiry in 2012 Mr. Zandi had testified he did not see the letters probate.

[67] The fact is Mr. Zandi testified in 2015 before the Law Society, which took place after the preliminary inquiry, and stated that he did review the letters probate. The Law Society matter was disposed of with admissions of fault by Mr. Zandi. It is not hard to imagine the untold difficulties he would have with the Law Society if he contradicted under oath at trial the evidence he gave before its discipline tribunal. In any event, Mr. Zandi’s contradictory evidence did nothing to enhance his respectability as a lawyer and a witness.

35 Station Street and 132 Harwood Avenue

Mr. Curreri Meets Robert Ricciotti

[68] Mr. Curreri was first introduced to Mr. Ricciotti at a gentlemen’s club by Mr. Ricciotti’s old high school friend, Tito Di Vincenzo. Mr. Curreri, Mr. Di Vincenzo and Mr. Ricciotti next met at a wine shop where Mr. Ricciotti was employed and then met at other spots like Home Depot and Tim Hortons.

[69] Mr. Di Vincenzo told Mr. Ricciotti that Mr. Curreri owned a number of properties on which he wanted to obtain mortgage financing. Mr. Di Vincenzo explained that Mr. Curreri could not obtain a mortgage himself because of a poor credit rating. Mr. Ricciotti testified Mr. Di Vincenzo was doing most of the talking but said that Mr. Curreri confirmed they were his properties that he owned for many years free and clear. Mr. Ricciotti agreed to get involved and asked Mr. Di Vincenzo to send the paperwork to his lawyer.

The Transfer and Mortgaging of the Property

[70] Robert Ricciotti owned a numbered company, 2085198 Ontario Inc. (“208”), which carried on business as Platinum Distributing selling wholesale sporting goods. Robert Ricciotti is the president of and sole signatory for 208. The business address on the corporate profile for both 208 and Mr. Curreri is 1054 Centre Street. Mr. Ricciotti testified the 1054 Centre Street address is not his address and he did not know anything about that address.

[71] A TD bank business account # 5003099 was opened for 208 on January 19, 2006. The plan was to transfer properties to 208 and obtain mortgage financing on them. Omar Shabbir Khan, a lawyer, acted for Mr. Ricciotti on the transactions related to 132 Harwood and 35 Station.

[72] On June 27, 2006 both 132 Harwood and 35 Station were transferred by Mr. Curreri to 208. The transferor shown on the 132 Harwood transfer is “Fred Anthony Curreri” with no date of birth. The transferor on 35 Station is noted as “Fred Curreri” with no date of birth.

[73] Mr. Bhatia and his company submitted and signed off on both transfers. The two properties were transferred to 208 in trust to Mr. Di Vincenzo by way of a statutory declaration for each of the two properties, naming Mr. Curreri as the beneficial owner of each property. Linda Lawlor commissioned the statutory declarations on August 21, 2006 even though there were no signatures for Mr. Curreri or Mr. Di Vincenzo.

[74] Three mortgages were placed on title to 132 Harwood with 208 as the mortgagor: one for $220,000 on July 28, 2006 from Brian Giannini, an associate of Mr. Ricciotti; another for $259,000 on June 11, 2007 from A. Fusco; and a third for $54,000 on August 14, 2007 from Sandra Winton. Mr. Khan submitted and signed off the Giannini mortgage.

[75] Four mortgages were placed on title to 35 Station with 208 as the mortgagor: one for $100,000 on October 19, 2006 by Anna Ricciotti, Mr. Ricciotti’s wife; $80,000 on March 1, 2007 by John Polyzios; $55,000 on March 5, 2008 by Roberto Ricciotti; and $55,000 on August 7, 2008 by Alti Auto Truck Service. Mr. Khan submitted and signed off on some of the mortgages on 35 Station.

[76] Mr. Ricciotti was questioned about the numerous deposits made to 208’s TD account.

[77] The TD account for 208 shows deposits of large cheques that closely correspond with the dates of some of the mortgages. For instance, a cheque in the amount of $145,870 dated July 28, 2006, the day of the Giannini mortgage, was deposited; a cheque in the amount of $91,880 dated October 20, 2006, the day after the Anna Ricciotti mortgage, was deposited; a cheque in the amount of $34,000 dated July 11, 2007, a month after the Fusco mortgage, was deposited; and a cheque in the amount of $45,539 dated August 13, 2007, the day before the Winton mortgage, was deposited.

[78] On record are some cheques drawn on 208’s TD account during the period from August 2006 to October 2008. Six cheques totalling $120,000 were written to Casino Niagara and Fallsview Casino from 208’s TD account.

[79] A cheque dated November 2, 2006 in the amount of $16,800 was drawn on 208’s TD account payable to Mr. Curreri. Four cheques in small amounts of a few hundred dollars each were paid to four of the mortgagees on 35 Station.

[80] Mr. Riccotti testified he brought the paperwork related to the transfers and mortgages to meetings with Mr. Curreri at Tim Hortons or Home Depot after Mr. Khan’s review. Mr. Ricciotti said the plan was that the funds would go to Mr. Curreri and Mr. Di Vincenzo and Mr. Ricciotti was to receive enough money to pay the mortgages. Most often it was Mr. Di Vincenzo who Mr. Ricciotti met to deliver money.

[81] Mr. Ricciotti admitted that drafts payable to the gambling casinos were deposited into his casino accounts. He stated that he would write drafts to the casino from 208’s TD account and fax them to the casino in advance so funds would be available when he arrived. The casino would put money into the account and give the value of the deposits to him in chips or cash. In short, Mr. Ricciotti used the mortgage funds for his own personal gain. He gambled with the money from the mortgages. On top of that Mr. Ricciotti was paid $25,000 for obtaining the mortgages.

[82] Despite Mr. Ricciotti’s insistence, as if repeating a mantra, that the money was ultimately for Mr. Curreri, he could not explain how the money in his casino accounts actually passed to Mr. Curreri. He said he would gamble over and over in the hope that he would be “even or above”. He said he met Mr. Di Vincenzo several times at the casino to deliver money to him. He only met Mr. Curreri on one occasion to give him money. In the end, Mr. Ricciotti testified he assumed the money went to Mr. Curreri but did not know Mr. Di Vincenzo actually received it until the court proceedings.

350 Eglinton Avenue West

[83] The property at 350 Eglinton was also owned by Mr. Curreri’s mother before her death. Mr. Zandi testified he represented Mr. Curreri, the accused, in transactions related to the property which occurred in 2007.

[84] Mr. Zandi testified that he acted for Mr. Curreri on the transmission and transfer of that property. He testified he does not recall if Mr. Di Vincenzo attended his office with Mr. Curreri. Mr. Curreri’s evidence is that Mr. Di Vincenzo always attended and did all the talking on property transactions.

[85] On July 4, 2007 the property was transmitted from the estate of Mr. Curreri’s mother purportedly to the elder Fred Curreri. Mr. Bhatia’s company submitted the registration of the transmission and Mr. Zandi signed off on it. On the same day the property was transferred purportedly by the elder Fred Curreri, purportedly to the elder Fred Curreri. The transfer was also submitted by Mr. Bhatia’s company and signed by Mr. Zandi.

[86] The applicant on the transmission is “Fred Curreri” with no date of birth. The transferor and transferee on the transfer are also “Fred Curreri” with no date of birth for the transferor and May 7, 1947 for the transferee.

[87] Mr. Zandi testified he acted for Mr. Curreri on a large mortgage placed on that property. He testified he did not recall if Mr. Di Vincenzo was with Mr. Curreri at his office. On July 6, 2007 the property was mortgaged by a mortgagor shown as “Fred Curreri”, with no date of birth, in the amount of $1,150,000, involving 11 mortgagees, one of which was B and M Handleman Investments Ltd. A cheque in that amount was written to B and M Handleman Investments Ltd. on Mr. Zandi’s firm’s account.

[88] On November 20, 2008, a further mortgage was placed on 350 Eglinton with “Fred Curreri” as the mortgagor, with no date of birth, in the amount of $300,000 in favour of Mahin Pourghandehari. Lawrence Zimmerman’s law office submitted the registration and signed off on it.

1446 Danforth Avenue

[89] Mr. Zandi testified he also acted for Mr. Curreri in relation to 1446 Danforth. This property was also owned by the mother before her death.

[90] On July 4, 2007 Mr. Bhatia’s company registered a transmission of the property by “Fred Anthony Curreri”, with no date of birth. On the same day, the property was transferred with “Fred Anthony Curreri” shown as the transferor with no date of birth and the transferee shown as “Fred Anthony Curreri” with the date of birth, May 7, 1947. It was Mr. Curreri, the accused, who attended Mr. Zandi’s office in relation to the property.

[91] Mr. Zandi signed off on both transactions. Two mortgages were placed on that property, $675,000 on August 10, 2008 involving the mortgagee B and M Handleman Investments Ltd. and seven others, and $150,000 on July 11, 2008 with Mohin Pourghandehari as mortgagee.

[92] Mr. Zandi testified he did not know that there were two Fred Curreri’s until 2009 when a lawyer called to advise him. Mr. Zandi insisted he was shocked. He complained that there were so many documents to review on the various transactions and he admitted that he was not paying attention, that he was negligent. What else could he say given the admissions he had to make to resolve the matter before the Law Society?

Fred Curreri’s Evidence

Examination-in-Chief

[93] Under examination-in-chief Mr. Curreri professed almost complete ignorance of the transfers and mortgages of his father’s eight properties. He asserted that he never pretended to be his father in relation to the land transactions, never told Mr. Di Vincenzo or Mr. Ricciotti that he owned the properties and never used fake identification. He testified he had no experience with setting up companies or with business dealings with land. He placed his entire trust in Mr. Vincenzo and Mr. Ricciotti to take care of the paperwork, the investments and the dealings with the lawyers.

[94] Mr. Curreri said it was Mr. Ricciotti’s idea to set up Curreri Investments. He said he understood that they would make money from “mortgaging investments” but professed not to know what that meant or how money could be made in that way. He testified Mr. Di Vincenzo did all the talking to company registration officials, bank representatives and lawyers and it was Mr. Di Vincenzo who put him in touch with Mr. Ricciotti.

[95] As noted earlier Mr. Curreri had bank cards and cheques for the RBC and CIBC accounts for Curreri Investments. He testified he signed cheques himself. He stated that Mr. Di Vincenzo would give him a list of people to write cheques for and Mr. Di Vincenzo would fill in the amounts. Mr. Curreri testified he did not recognize the names of the people. He and Mr. Di Vincenzo would usually meet at Tim Hortons and Mr. Di Vincenzo would bring the cheques for his signature. He thought the cheques were for mortgaging investments.

[96] Mr. Curreri’s counsel showed him a photocopy of four RBC cheques in his name dated in August, September, October and November 2007 made payable to B and M Handleman Investments Ltd. Mr. Curreri testified he recognized the payee’s name. He stated that the signatures on the cheques look like his and that all the writing on the cheques is his except the dollar amounts. He pointed out in relation to some cheques that some amounts have a line through the number “7” and he does not write “7s” in that way.

[97] Mr. Curreri’s counsel also showed him photocopies of the four cheques made out to him, dated in April and May 2006, drawn on Ms. Lawlor’s personal TD account where the mortgage funds for 28 Ruden were deposited − the cheques referred to earlier for $65,000, $50,000, $20,000 and $70,000. Mr. Curreri stated he did not recognize the cheques and denied they were ever given to him. The stamps on the back of the cheques show the cheques were cleared by the bank. However, the quality of the content on the reverse side of the cheques is such that signatures are not clear.

[98] Regarding 28 Ruden Mr. Curreri admitted that he knew that property was owned by his father before it was transferred to Ms. Lawlor. He said he did not know Ms. Lawlor and never gave instructions to transfer or mortgage the property. Mr. Curreri denied knowing how the property was transferred to Ms. Lawlor and denied being involved with the transfer and mortgage on the property. Again he denied receiving any of money from the sale and mortgage of the property.

[99] Mr. Curreri stated he was aware 200 Harwood, 37 Station, 250 Eglinton and 1446 Danforth were all commercial properties owned by his father and that he had visited them a few times in the past. He testified he was not aware the properties had been transferred to him and then mortgaged. He also denied being involved in or knowing anything about those transactions. He said he received no money from the transactions. Mr. Curreri’s address on some transfers is recorded as 1054 Centre St, Thornhill. He testified he never lived there and was not familiar with that address.

[100] Regarding Mr. Ricciotti, Mr. Curreri testified he might have met him on one occasion when Mr. Di Vincenzo introduced them.

[101] Mr. Curreri was asked about 132 Harwood and 35 Station, the properties that were transferred to Mr. Ricciotti’s numbered company 208. Mr. Curreri was aware that both of those commercial properties were owned by his father and said that he had visited them a few times. He was asked if he knew of the numbered company 2085198 and he answered that he was not familiar with it.

[102] Mr. Curreri testified he knew nothing about the transfer of the two properties to 208 and the subsequent mortgaging, and denied receiving any money from the transactions. He said he never received the cheque in the amount of $16,800 payable to him from 208’s TD account. Again, this cheque had been cleared but the quality of the signature on the reverse side of this cheque is poor. He asserted he received no cash, gambling chips or vouchers from Mr. Ricciotti.

[103] Mr. Curreri testified he knew 1246 St. Clair was a commercial property owned by his father. He testified that his father had transferred it to him previously as a gift. He said he believed, but was not certain, that the property was mortgaged while in his possession. He testified Mr. Di Vincenzo was involved with that mortgage and he did not know anything about it. He said he did not know what “mortgage” means. He confirmed that his father had learned about the mortgage and got very angry and took the property back. He said Mr. Di Vincenzo arranged the mortgage and he (Mr. Curreri) received no money.

[104] Mr. Curreri testified that he was not aware of the transfer of 1246 St. Clair in November 2007 jointly to himself and in trust to Kristina Motyczka-Fiore or of the subsequent mortgage. Mr. Curreri testified he knew nothing about those transactions. He testified he does not know anyone named Kristina Motyczka-Fiore. He said he received no money from those transactions.

[105] Mr. Curreri did however testify that he had met the two lawyers, Mr. Greenberg and Mr. Zandi.

[106] Mr. Curreri testified he did not know Mr. Zandi previously and that Mr. Di Vincenzo took him to meet Mr. Zandi about two or three times at his office at Yonge and Sheppard. Mr. Di Vincenzo did all the talking at these meetings. Mr. Curreri said he thought the meetings were about “mortgaging investments” because his company, Curreri Investments, was mentioned. He said these meetings were always arranged by Mr. Di Vincenzo and according to Mr. Curreri, Mr. Di Vincenzo never explained why they were meeting with Mr. Zandi but he knew he was a lawyer. He said he did not retain, pay or instruct Mr. Zandi to transfer or mortgage his father’s properties. Mr. Curreri said it is possible he signed documents when he was at Mr. Zandi’s office but he was not certain.

[107] Mr. Curreri stated he had no independent communications with Mr. Zandi. He said he saw Ms. Lawlor at Mr. Zandi’s office but did not recall, in relation to 28 Ruden, signing the Acknowledgement and Direction with Ms. Lawlor. He said he did not recall seeing the Statutory Declaration or signing it but said it is possible he signed it. Mr. Curreri gave the same response in relation to the Consent to Act Re Conflict. He testified he did not understand the documentation and no one explained it to him.

[108] Mr. Curreri recalled Mr. Di Vincenzo taking him to Mr. Greenberg’s office on two or three occasions. Mr. Curreri believed they went to see Mr. Greenberg about mortgaging investments. Again, Mr. Curreri said Mr. Di Vincenzo always arranged the meetings and did all the talking and took care of the paperwork. He testified he believed he saw Ms. Lawlor there more than once.

Cross - Examination by Ms. Lawlor’s Lawyer

[109] Ms. Lawlor’s counsel sought to challenge Mr. Curreri on a statement he made to the police that is inconsistent with his trial evidence. Crown counsel had not sought to lead this statement through an application to determine its voluntariness. The statement therefore has not been subject to an admissibility finding. I allowed cross-examination on the authority of a Court of Appeal judgment.

[110] [R. v. Logan, 1988 Carswell 99, at para. 118 (Ont. C.A.)] held a co-accused can cross-examine on an admission made by one accused to a person in authority that was not led by the Crown and without a voir dire as to voluntariness. That is, the accused can be impeached on a previous inconsistent statement by a co-accused without proof of voluntariness.

[111] Defence counsel confronted Mr. Curreri with a statement Mr. Curreri made to the police in which he said that he believed the property at 1246 St. Clair was his property. Mr. Curreri testified at trial he did not recall saying that to the police, but it was possible that he did.

[112] Defence counsel pointed out that Mr. Curreri was more sophisticated than he was attempting to appear to the court. He reminded him that he managed his father’s properties when his father was away. He did the banking, paid the bills and expenses like utilities on the properties. Defence counsel also challenged Mr. Curreri that he worked at his uncle’s stationery business for 33 years reaching the position of assistant manager. Mr. Curreri agreed he was responsible for maintaining the inventory and managing the cash and business’s property. He agreed he managed his father’s properties when his father was away.

[113] Defence counsel also put to Mr. Curreri that he had a previous experience in 2004 with a mortgage when the mortgage was placed on his father’s property at 1246 St. Clair. In answer to the question whether he understood from that experience that mortgaging a property meant borrowing money, Mr. Curreri answered “yes”.

[114] Defence counsel confronted Mr. Curreri with the fact that the cheques made out to him were certified and challenged him that he went into the bank and cashed them. Mr. Curreri denied he cashed the cheques. Mr. Curreri could not explain how certified cheques made out to him and cleared by the bank could have been cashed by someone other than himself.

[115] Mr. Curreri admitted that he was excited about the money-making business Mr. Di Vincenzo proposed. He admitted to being unemployed in 2006 when Mr. Di Vincenzo approached him and to having free time on his hands to go to lawyers’ offices with Mr. Di Vincenzo.

Cross - Examination by Crown Counsel

[116] Crown counsel also challenged Mr. Curreri that he is feigning a lack of understanding of mortgages. Crown counsel confirmed with him that English is his only language. Mr. Curreri agreed that he understood the meaning of “property” and that a “mortgage” is a “loan”. Mr. Curreri indicated that he knew what it means to “transfer” property from one person to another. When asked whether he understood what “investments” means, Mr. Curreri responded that he presumes he knows. Mr. Curreri further admitted he understood “trust”, “distrust” and “suspicious”.

[117] Crown counsel asked Mr. Curreri about his repetitive response that he “did not recall” certain things and that it was “possible” certain events happened.

[118] Counsel asked Mr. Curreri for instance about his answers about his signature, whether by saying it was “possible” it was his signature, he meant he did not recall putting pen to paper. Mr. Curreri indicated that is what he meant and that he was not saying he thought someone had forged his signature.

[119] Crown counsel asked a general question along those lines and inquired whether sitting on the stand today the problem is actually that he simply is not able to recall certain events. Mr. Curreri responded “yes”. Crown counsel provided an example by showing him his health card with his signature on it. Mr. Curreri agreed it appeared to be his signature but he just did not recall signing the card back when he visited Service Ontario to apply for it. He agreed that not recalling signing does not mean he did not sign it or that someone forged his signature.

[120] Crown counsel then showed Mr. Curreri one of the cheques bearing his name as the account holder which is made out to B and M Handleman Investments Ltd. and contains a signature. Crown counsel pointed out that the signature on the cheque was similar to the signature on his health card. Mr. Curreri agreed the signature appeared to be his.

[121] Crown counsel also showed Mr. Curreri a certified cheque for $45,000 from Mr. Ricciotti payable to Mr. Curreri. Counsel suggested to Mr. Curreri that it is his signature endorsed on the back of the cheque. Mr. Curreri testified he did not receive the cheque but admitted that it appeared to be his signature. Mr. Curreri agreed that he would have had to take possession of the cheque to sign it but he did not recall doing that.

[122] Crown counsel also questioned Mr. Curreri about his relationship with Mr. Di Vincenzo and about what he understood of Mr. Di Vincenzo’s business ideas in relation to 1246 St. Clair. Counsel suggested that when Mr. Curreri said he did not know what Mr. Di Vincenzo was saying, he actually meant he did not recall what he was saying. Mr. Curreri agreed he knew that Di Vincenzo’s words meant he wanted to make money. He conceded he would understand his words when he spoke them but his problem on the stand is he just could not recall the words Mr. Di Vincenzo would say.

[123] Crown counsel then put to Mr. Curreri his evidence that Mr. Di Vincenzo did all the talking in meetings about 1246 St. Clair and his evidence that he did not know what Mr. Di Vincenzo was saying and suggested that he actually meant he did not recall what Mr. Di Vincenzo was saying leading up to the loan on 1246 St. Clair. Mr. Curreri agreed that was true. He agreed he understood a loan would be taken out on 1246 St. Clair and that money would be given to someone in order to make money.

[124] Mr. Curreri agreed with counsel’s suggestion that he felt proud in telling his father about the loan on 1246 St. Clair in 2004 and Mr. Di Vincenzo’s plan to make money. He also agreed he was surprised by his father’s anger. He agreed that he was angry with himself and with Mr. Di Vincenzo about what had happened, that his father took back the property. He admitted that Mr. Di Vincenzo was overbearing with him and sometimes mean and disrespectful. He did not like it when Mr. Curreri asked too many questions.

[125] Mr. Curreri testified their relationship broke off for a few years until Mr. Di Vincenzo approached him again a few years later speaking again about making money. Mr. Curreri agreed there was more talk about taking out a loan on another property. Mr. Curreri testified he recalled seeing Ms. Lawlor at Mr. Zandi’s and Mr. Greenberg’s offices. Referring to the documents related to 28 Ruden, Mr. Curreri agreed he did not recall putting pen to paper in signing the documents and agreed the signatures appear to be his. But he testified he did not really know Ms. Lawlor and certainly not well enough to give her one of his father’s properties.

[126] Counsel put to Mr. Curreri, and he agreed, that he was suspicious while the new property deals were happening and that he would think about his father’s anger over the 1246 St. Clair mortgage when the new deals were occurring. He agreed and admitted he was better off staying quiet and not really knowing what was happening.

[127] Regarding the dealings in 2007 with the properties in Ajax, Mr. Curreri admitted he did not tell Mr. Ricciotti he did not own those properties. Regarding 1246 St. Clair, counsel pointed out to Mr. Curreri that it was Ms. Lawlor who did the transfer of that property to him and Ms. Motyczka-Fiore jointly. Mr. Curreri agreed and testified he did not authorize Ms. Lawlor to transfer 1246 St. Clair.

ANALYSIS

The Law of Fraud

[128] To make out a crime, the mens rea and actus reus of the offence must be established beyond a reasonable doubt.

[129] The actus reus of fraud is determined based on the following principles:

(a) the offence has two elements: a dishonest act and deprivation;

(b) the dishonest act is established by proof of deceit, falsehood or “other fraudulent means”;

(c) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act.

[ R. v. Théroux, [1993] 2 S.C.R. 5, at para. 16 as cited from R. v. Olan, [1978] 2 S.C.R. 1175; see also R. v. Riesberry, [2015] S.C.C. 65]

[130] The words “other fraudulent means” have been the subject of interpretation by subsequent courts and held to include the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogation of funds or property. The mental element of the actus reus is that the act must be voluntary: [ R. v. Théroux, at paras. 18 and 19].

[131] The Supreme Court of Canada, referring to earlier Ontario Court of Appeal decisions, held there need not be any misrepresentations or question of what an accused was authorized to do with the funds. The fact that the accused used the funds in a manner which was not authorized is sufficient grounds for finding the accused acted dishonestly: [ R. v. Zlatic, [1993] 2 S.C.R. 29, at para. 35].

[132] The mens rea of fraud is based on the subjective test of whether the accused subjectively appreciated the consequences of the prohibited act as at least a possibility and not on the objective test of whether a reasonable person would have foreseen those consequences. The subjective test looks to the accused’s intention and the facts as the accused believed them to be: [ R. v. Théroux, at para. 21]. There are two important provisos to consider:

• A person is not saved from conviction because they believe there is nothing wrong with what they are doing. The question is whether the accused subjectively appreciated that certain consequences would follow from their acts not whether the accused believed the acts or their consequences to be moral.
• The Crown is not required in every case to show precisely what was in the accused’s mind at the time of the criminal act. Subjective awareness of the consequences can be inferred in some cases from the act itself, absent an explanation that creates doubt about the inference.

[ R. v. Théroux, at paras. 22 and 23]

[133] In summary, a prohibited act of deceit, falsehood or other dishonesty by the accused which results in the deprivation of another of property that is or ought to be another’s must be established. The complete crime requires proof that the accused is subjectively aware they are undertaking the prohibited act of deceit, falsehood or dishonesty which could deprive another of their property or put their property at risk. In short, “the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation)”: [ R. v. Théroux, at para. 24].

Wilful Blindness

[134] The nature of Mr. Curreri’s evidence calls for consideration of wilful blindness in determining whether the Crown has proven the mens rea of fraud in this case.

[135] Wilful blindness is said to be in play if an accused’s suspicion is awaken and rather than making further inquiries they deliberately omit to do so in order to maintain ignorance about the reason for their suspicion. Wilful blindness requires that the accused purposefully omit to make inquiries to avoid receiving undesirable knowledge. Under these circumstances, the accused is deemed to have actual knowledge. This is sufficient to satisfy a mens rea requirement of knowledge, intention or recklessness: [R. v. Currie, 1975 CarswellOnt 1043 (Ont. C.A.)]; R. v. Sansregret, [1985] S.C.J. No. 23; and R. v. Aiello, 1978 CarswellOnt 1182 (Ont. C.A.), affirmed, 1979 CarswellOnt 704 (S.C.C.).

[136] The Supreme Court of Canada in Sansregret explains:

[W]hile recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.

[ R. v. Sansregret, at p. 585; author’s emphasis]

[137] The Supreme Court of Canada in R. v. Briscoe adopted a comment from R. v. Jorgensen, [1995] 4 S.C.R. 55 at para. 103, stating: “A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[138] The Court in R. v. Briscoe went on, quoting Glanville Williams, in Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961), at p. 159, holding:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

[ R. v. Briscoe, at para. 23; author’s emphasis]

[139] Hence, a finding of wilful blindness is sufficient to establish the requisite knowledge to support a conviction for fraud.

Application of the Law

General Comment

[140] It is very sad to say it was nearly upon the eve of his death at age 96 that the elder Fred Curreri learned the shocking news that all of his properties had been taken from him and financing obtained on them by complete strangers. I cannot say there are no factual gaps in this case. There seems to be connections amongst all the actors in this sad drama – some more tenuous and some more well-defined. But overall the nature of the inter-relationships is far from clear.

[141] There is no question there were connections among Mr. Di Vincenzo, Mr. Ricciotti and Mr. Curreri and the transactions on some of the properties. The two men introduced Mr. Curreri to ideas about making money through mortgage transactions on the properties. Although there is evidence that links Mr. Curreri and Ms. Lawlor, their connection seems rather cursory from what I see in the evidence before the court. They were involved in various ways with the dealings on some of the transactions. All four of them were linked to or had encounters with two of the lawyers who acted on transfers and encumbrances on the properties. All four of them were connected to the address, 1054 Centre Street, Thornhill.

[142] Transactions on the properties, ostensibly done by the elder Fred Curreri, were actually carried out by the accused, Mr. Curreri, in favour of various people and numbered companies. Ms. Lawlor was involved in transferring one of the properties, 1246 St. Clair. Large mortgages were advanced on the eight properties by a multitude of mortgagees with large amounts of money flowing in and out of banks and in and out of the hands of many people. There is evidence that suggests, but does not clearly demonstrate, personal and professional relationships amongst some of the various types of actors in these transactions. Some of the same people intersected in dealings with more than one of the properties.

[143] The address 1054 Centre Street, Thornhill emerges in the evidence in relation to several properties but at the end of the day is a mystery. It is an address commonly cited on documents in association with Mr. Curreri, Mr. Ricciotti, Ms. Lawlor, and by Mr. Di Vincenzo in preparing documentation. It appears as a business address for numbered companies or a residential address for parties to transfers and mortgages. The address appears on documents involving Ms. Lawlor but this is not one of the addresses she provides as her residential address. Interestingly, and perhaps suspiciously, each witness associated with that address completely disavowed any knowledge of it.

[144] Although it is always preferable, I do not need to have before me a complete gap-free evidentiary picture. To find fraud in relation to the properties, I do not need a fulsome picture of the relationships amongst all of the actors and the land transactions. A conclusion on whether the Crown has satisfactorily proven beyond a reasonable doubt the elements of fraud can be arrived at on the evidence that is before the court.

The Accused Mr. Curreri

[145] There is no dispute that the father did not authorize anyone to transfer, mortgage or otherwise deal with his properties. He did not discover that he no longer owned any of the properties until two and three years after the improper dealings.

[146] The actus reus of fraud consists of a dishonest act, deceit, falsehood or other fraudulent means, and deprivation leading to detriment, prejudice or risk of the prejudice to the victim’s economic interests. I find Crown counsel has satisfied these elements of fraud in relation to Mr. Curreri.

[147] Mr. Curreri testified he knew all of the properties were owned by his father when the transfers and financings were undertaken as though he had the legal authority to allow these dealings.

• Mr. Curreri knew 28 Ruden belonged to his father when it was transferred to Ms. Lawlor in April 2006 and then mortgaged by her.
• Mr. Curreri knew he did not own 200 Harwood when it was mortgaged in December 2006 in favour of Mr. Mc Quaid and the funds deposited into the bank account of the numbered company 169, owned and operated by Ms. Lawlor, Mr. Di Vincenzo and Ms. Motyczka-Fiore.
• Mr. Curreri knew he did not own 132 Harwood and 35 Station in June 2006 when they were transferred in trust to Mr. Ricciotti and to himself as the beneficial owner, and subsequently mortgaged with the funds being deposited into the bank account of the number company 208 owned by Mr. Ricciotti.
• Mr. Curreri knew he was not the personal representative of his mother’s estate when the three properties, 37 Station, 250 Eglinton and 1446 Danforth were transmitted and transferred to himself in 2007 and 2008 and were mortgaged by himself in favour of numerous mortgagees.
• Mr. Curreri knew his father owned 1246 St. Clair when in November 2007 Ms. Lawlor transferred it jointly to himself and Ms. Motyczka-Fiore. Mr. Curreri and Ms. Motyczka-Fiore were not authorized to subsequently mortgage it in favour of Mr. Mc Quaid in 2008. Mr. Curreri testified at the preliminary inquiry that he believed he owned 1246 St. Clair when it was transferred in 2007. However, what I accept as true is his trial evidence that like all the other properties, he knew he did not own that property in 2007.

[148] Mr. Curreri voluntarily went with Mr. Di Vincenzo and Mr. Ricciotti to the lawyers’ offices to facilitate transactions with his father’s properties. He admitted he understood the goal was to make money on investments by taking loans on the properties. Mr. Curreri testified in-chief that he was not sure whether he signed cheques and documents.

[149] The cross-examination by Crown counsel clarified to my satisfaction that what he meant by “possibly” signing was that, while sitting on the stand at trial some ten years later, he did not recall putting pen to paper to sign the cheques and documents shown to him. He said the signatures that were visible on documents and cheques looked like his signatures. He denied that he was suggesting someone had forged his signature.

[150] Mr. Curreri was involved in the fraudulent transfer and mortgaging of his father’s properties. He was present, most often with Mr. Di Vincenzo, and at times Mr. Ricciotti and Ms. Lawlor, in Mr. Zandi’s and Mr. Greenberg’s offices when these deals were put in place. He met with Mr. Di Vincenzo at Home Depot and Tim Hortons to sign cheques and documents and to talk about mortgaging investments. He met with Mr. Ricciotti at casinos. In short, Mr. Curreri was directly involved in the prohibited acts of transferring and mortgaging his father’s eight properties and of dispersing the mortgage funds to many people unknown to his father, including his co-accused, Ms. Lawlor, without his father’s consent.

[151] Mr. Curreri continued to maintain throughout his testimony that he did not receive any cash or the hundreds of thousands of dollars in certified cheques made out to him during the time periods that mortgages were taken out. He acknowledged it was likely his signature on the back of cheques where the writing was visible. All of the cheques were cleared by the banks, meaning they were cashed. Mr. Curreri could not explain how certified cheques made out in his name and that were cashed, on some of which he could recognize his signature, could have been redeemed by someone other than himself.

[152] Common sense and reasonable inference both tell me he received money from those cheques. I find on the totality of the evidence the Crown has proven beyond a reasonable doubt that Mr. Curreri received at least some, if not all, the funds from those cheques which were drawn from the mortgages placed on his father’s properties.

[153] I find the facts amply demonstrate Mr. Curreri engaged in deceitful and dishonest acts with others directed to appropriating his father’s eight properties and converting them to the financial benefit of himself and others.

[154] The fraudulent schemes which Mr. Curreri voluntarily participated in with Ms. Lawlor, Mr. Di Vincenzo and Mr. Ricciotti and others clearly deprived the father of his valuable properties from 2006 until his unfortunate death in 2009 and went on to deprive his estate until the properties were returned and the mortgages discharged by the title insurer years later. The prejudice to the father’s economic interests is indisputable. The actus reus of fraud by Mr. Curreri has been established.

[155] Proof of the mens rea requires establishing that Mr. Curreri was subjectively aware he was undertaking the prohibited acts of improperly transferring and mortgaging properties that belonged to his father. I must ask myself whether the facts support the finding that Mr. Curreri was intentionally involved with the prohibited acts of appropriating his father’s properties and obtaining hundreds of thousand dollars of funds from mortgage loans. I must inquire whether he did so desiring the prohibited consequences.

[156] At law a person is not saved from conviction because they believe there is nothing wrong with what they are doing. It matters not that Mr. Curreri says he did not understand the intricacies of the dealings with the properties and for that reason he did not know he was doing anything wrong. Precisely what was in Mr. Curreri’s mind during these dealings is not for Crown counsel to establish.

[157] In any event, I find in spite of Mr. Curreri’s attempt to present himself as completely unsophisticated, the facts do not bear out that contention. Mr. Curreri completed secondary school, for decades had the responsibilities of the assistant manager of his uncle’s business and throughout the years managed his father’s properties when the father was away. When the money-making schemes were brought to him, he was not a blank slate devoid of any experience in the world of money and business.

[158] But more important is his practical experience with 1246 St. Clair in 2004. He incurred his father’s wrath for mortgaging that property. He was angry his father took the property back. The father had gifted that property to his son and his father got enraged by the mortgage. It is not reasonable to think that Mr. Curreri would not realize that placing mortgages on not one but all of his father’s properties, including 1246 St. Clair, would not attract even greater recrimination.

[159] I find on the totality of the evidence that Mr. Curreri was subjectively aware that he was involved with others in fraudulently transferring his father’s properties and in unlawfully obtaining money from the mortgages. The mens rea has been made out.

[160] However, in the event that I am wrong in that conclusion, I find, in the alternative, that Mr. Curreri acted in wilful blindness to what he and the others were involved in.

[161] A person is wilfully blind when they feel some doubt about something and are aware of a need to make inquiries but decline to make the inquiries because they prefer to remain ignorant and to not know the truth. In coming to my decision on this issue, I asked: “Did Mr. Curreri shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[162] Mr. Curreri repeated time and again throughout his testimony in-chief that Mr. Ricciotti, and particularly Mr. Di Vincenzo, did all the talking, handled all the documents and all the money. He insisted he did not understand anything that was going on.

[163] However, under cross-examination by Crown counsel Mr. Curreri admitted he understood a mortgage was a loan, that money could be obtained from a loan on property and that he knew it was not his property from which the money was being raised. He admitted he had some concerns about what was going on. Most important for a finding of wilful blindness, Mr. Curreri conceded he was better off staying quiet and not really knowing what was happening. Indeed, Mr. Curreri did shut his eyes because he strongly suspected that looking would fix him with knowledge about his involvement in criminal activity.

[164] Wilful blindness has been made out as an alternative on the finding of mens rea.

Conclusion on Mr. Curreri’s Guilt

[165] I find on the totality of the evidence that the Crown satisfied its obligation to prove the essential elements of fraud beyond a reasonable doubt. Nothing in the Crown’s or Mr. Curreri’s evidence raised a reasonable doubt that Mr. Curreri, through deceit and dishonesty, was involved in appropriating and encumbering the eight properties to the deprivation of the elder Fred Curreri. Nothing in Mr. Curreri’s or the Crown’s evidence raised a reasonable doubt that Mr. Curreri was subjectively aware of the prohibited acts or, in the alternative, was wilfully blind as to the prohibited acts.

[166] In the result, I find Mr. Curreri guilty of fraud over $5,000 in relation to all eight of the elder Fred Anthony Curreri’s properties.

Ms. Lawlor

Overview

[167] As she has a right to do, Ms. Lawlor did not call a defence. It is the Crown’s obligation to prove Ms. Lawlor’s guilt based on all the evidence, not Ms. Lawlor’s obligation to prove her innocence.

[168] As will be shown, the crux of a finding of guilt of Ms. Lawlor lies in her dealings with 1246 St. Clair. She did not own that property and was not authorized by the elder Fred Curreri when she transferred the property.

[169] The evidence shows that while Ms. Lawlor surely left her hand prints on 28 Ruden, I will show the evidence related to that property is not such that the Crown was able to prove the essential elements of fraud against Ms. Lawlor.

[170] Ms. Lawlor also had a minimal connection to 200 Harwood as she signed off on a mortgage in December 2006 while she was still employed by Mr. Greenberg. Ms. Lawlor is also connected to a large transfer of $235,937.82 in October 2006 by draft from Mr. Zandi’s office. The funds were deposited into a TD business account held by a numbered company owned by Ms. Lawlor. It is not clear from the evidence what that money related to and Mr. Zandi testified he did not recall. Those involvements by Ms. Lawlor do not figure into my determination of Ms. Lawlor’s guilt of fraud.

[171] Frailties in the land titles system opened the way for Ms. Lawlor to commit fraud in relation to 1246 St. Clair. As discussed earlier, before 2008 a person seeking to register land title instruments needed only apply to Teranet for a USB PIN security code to allow for use of the Teraview software. System users did not need to obtain authorization from the Director of Land Titles for a licence. This left room for unscrupulous use of the system to transfer and charge the properties of unsuspecting owners without their consent.

[172] Ms. Lawlor had many years of experience as a legal assistant in real estate. She worked for Mr. Greenberg and Mr. Zandi. She worked for Mr. Greenberg for ten years, first as a conveyancer before the advent of the electronic system. She became skilful at using Mr. Greenberg’s Teraview account and PIN security code for land registration. After she was terminated from Mr. Greenberg’s firm she opened her own account under her residential address.

1246 St. Clair

[173] On November 22, 2007 before the new restrictions on the land titles system were in place, Ms. Lawlor transferred 1246 St. Clair. The transfer instrument shows “Fred Anthony Curreri” as one of the transferees. It was in fact Mr. Curreri who is referred to on the transfer document with a date of birth of May 7, 1947.

[174] Ms. Lawlor boldly took it upon herself to transfer the property to Mr. Curreri and Ms. Motyczka-Fiore as joint tenants. There is no question she did not own the property. It was owned by the elder Fred Curreri. He did not consent to the transfer. Ms. Lawlor had no authority to transfer the property to his son and Ms. Motyczka-Fiore. The elder Fred Curreri did not even know his property had been taken from him until 2009. There is no evidence that Mr. Curreri or anyone else deceived Ms. Lawlor into doing this.

[175] The prohibited act I think is quite straightforward. Ms. Lawlor fraudulently transferred 1246 St. Clair from its rightful owner. There is no evidence she did not do this voluntarily. This of course deprived the elder Fred Curreri of the ownership of the property devaluating his financial interests from 2007 until his death in 2009 and depriving his estate of the value of that asset until the property was subsequently returned to the estate.

[176] I find the Crown has proven beyond a reasonable doubt the actus reus of fraud in relation to 1246 St. Clair.

[177] The Crown has also succeeded in proving the mens rea of fraud in relation to 1246 St. Clair.

[178] I find it can be reasonably inferred from the facts that Ms. Lawlor subjectively appreciated the consequences of the prohibited act of fraudulently transferring the property. It is clear Ms. Lawlor’s intention was to misappropriate the owner’s property without him knowing it. Ms. Lawlor was a law clerk much experienced in performing transfers in the land titles system. She would have realized what she was doing and foreseen the consequence that she would be depriving the owner and impairing his economic interests by taking from him a valuable commercial property and giving it to someone else.

[179] I find in the result that Ms. Lawlor is guilty of defrauding the elder Fred Curreri in relation to 1246 St. Clair.

28 Ruden

[180] There is no dispute that the property at 28 Ruden belonged to the elder Fred Curreri before it was transferred on April 3, 2006.

[181] On April 3, 2006 28 Ruden was transferred from “Fred Anthony Curreri” as transferor to Ms. Linda Lawlor as transferee. The transfer registration does not contain a date of birth for the transferor. But it was Mr. Curreri who executed the transfer documentation. It was Mr. Zandi who drew up the documents to transfer the property and the transfer was registered and signed by Mr. Bhatia, a conveyancer retained by Mr. Zandi. Mr. Zandi drafted the Statutory Declaration signed by Ms. Lawlor and Mr. Curreri declaring the appointment of Ms. Lawlor as the trustee of the property and Mr. Curreri as the beneficial owner.

[182] There is no question the property was improperly transferred from the elder Fred Curreri without his knowledge or consent. This is a prohibited act. But it was not an act committed by Ms. Lawlor. Ms. Lawlor did not transfer 28 Ruden. Mr. Zandi’s office, on behalf of Mr. Curreri, did this. It was the prohibited act by Mr. Zandi’s office, on behalf of Mr. Curreri as transferor that deprived the elder Fred Curreri of his property and jeopardized his economic interests.

[183] For his part it appears Mr. Zandi was not aware that the “Fred A. Curreri” who attended his office on April 3rd was not the elder Fred A. Curreri who owned the property. He was the lawyer who acted on the transfer and the mortgage and he was deceived. His fault, as found by the Law Society, is that he was negligent in failing to do his due diligence. He admits this.

[184] In these circumstances on the totality of the evidence, I find the Crown did not prove beyond a reasonable doubt the actus reus of fraud in relation to Ms. Lawlor and 28 Ruden.

[185] I arrive at that conclusion aware there are suspicious circumstances surrounding Ms. Lawlor and 28 Ruden. For instance, there is no evidence that she knew the elder Fred Curreri or her co-accused before the transfer of the property. There is no evidence Ms. Lawlor ever lived at or had any physical connection with 28 Ruden. Yet on the RBC mortgage application she indicated she resided at 28 Ruden. Why would she do this if not for some unsavoury purpose?

[186] The large mortgage placed with RBC and the wanton and swift dissipation of the mortgage funds are indeed causes for suspicion. The funds were immediately transferred to Ms. Lawlor’s personal TD account which she freely used for her own personal expenses and to distribute hundreds of thousands of dollars to third parties including Mr. Curreri. One of the recipients was Angelo Sara, Mr. Di Vincenzo’s cousin, the person who introduced Mr. Curreri to Mr. Di Vincenzo, the opening act for the deceitful drama to follow.

[187] I find that notwithstanding my suspicions if, the prohibited act, the improper transfer of the property, is not attributable to Ms. Lawlor, then I think that taking out the mortgage and using the funds as she did cannot be applied against her in determining the actus reus of fraud in relation to 28 Ruden.

[188] However, in case I erred in my conclusion on the actus reus, my finding on the mens rea supports my conclusion that fraud cannot be attributed to Ms. Lawlor in relation to 28 Ruden.

[189] Mr. Curreri has the same first, middle name and surname as his father. They of course have different dates of birth. But it would not be evident from the documents on the 28 Ruden deal that there were two “Fred A. Curreris”, and there is no date of birth for the “Fred Anthony Curreri” who signed on the transfer. Mr. Zandi’s office acted on the transfer and mortgage and the evidence is that Mr. Curreri gave Mr. Zandi his driver’s licence which contained his name “Fred A. Curreri” and his date of birth, May 7, 1947.

[190] There is no evidence that Ms. Lawlor saw the driver’s licence. But obviously even if she saw the driver’s licence she would have had to have known there was another “Fred A. Curreri” born in 1913 for the date of birth on Mr. Curreri’s licence to alert her to an identity issue.

[191] Ms. Lawlor received the property through a transfer facilitated by the lawyer acting for a person the lawyer, however carelessly, believed was the owner of 28 Ruden. In spite of the cloud of suspicion over Ms. Lawlor, I find no basis in the evidence to conclude she could have been more aware than Mr. Zandi that the “Fred A. Curreri” in Mr. Zandi’s office was not the owner of the property.

[192] One might still ask: Why would a person who Ms. Lawlor apparently did not know transfer such a valuable property to her? Should this not have alerted Ms. Lawlor that she was possibly involved in a wrongdoing?

[193] Apart from these queries being beside the point of the sufficiency of Ms. Lawlor’s knowledge about the wrongfulness of the transfer, I think one answer lies in the reality that the world is filled with people who foolishly fall prey to the unscrupulous machinations of hardened fraudsters. Mr. Curreri was one such victim. Another answer rests in the fact that Mr. Curreri’s greed also got the best of him. He stood to benefit financially and he did. Over $200,000 in certified cheques were made payable to him from the 28 Ruden mortgage funds.

[194] In determining the mens rea of fraud in relation to 28 Ruden, I find for the reasons cited that the Crown has not established beyond a reasonable doubt that Ms. Lawlor subjectively appreciated the consequences of the transfer of the property to herself.

[195] In the result, I find the Crown has not proven beyond a reasonable doubt the mens rea of fraud in relation to Ms. Lawlor and to 28 Ruden.

Conclusion on Ms. Lawlor’s Guilt

[196] I find the Crown has proven beyond a reasonable doubt the essential elements of fraud in relation to 1246 St. Clair. The evidence viewed in its totality did not raise a reasonable doubt that Ms. Lawlor through deceit and dishonesty committed fraud over $5,000 in relation to 1246 St. Clair financially depriving the owner of the property. Nothing in the evidence raises a reasonable doubt that Ms. Lawlor was subjectively aware of the prohibited act of transferring a property she knew she did not own without the consent of the owner.

VERDICT

[197] For the foregoing reasons, I am satisfied the Crown has proven Fred Curreri’s guilt beyond a reasonable doubt on the offence against Fred A. Curreri on count 1 on the indictment.

[198] I therefore find Fred Curreri guilty on the one count on the indictment and a conviction will be entered accordingly.

[199] For the foregoing reasons, I am satisfied the Crown has proven Linda Lawlor’s guilt beyond a reasonable doubt on the offence against Fred A. Curreri on count 1 on the indictment.

[200] I therefore find Linda Lawlor guilty on the one count on the indictment and a conviction will be entered accordingly.

B.A. ALLEN J.

Released: June 30, 2016