Court File and Parties

COURT FILE NO.: 13-R2027 DATE: 2016/09/08

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent – and – GRACE GO GAURINO Applicant

Counsel: Bruce Lee-Shanok, for the Crown Shannon Robinson, for the Applicant

HEARD AT OTTAWA: September 6, 2016

Madam Justice B. R. Warkentin

Ruling on Application by Accused for a Directed Verdict of Acquittal

1Following the close of the Crown’s case, the Applicant, Grace Go Gaurino, the accused, brought this application seeking an order directing a verdict of acquittal on counts 1 and 3 on which she had been charged; count 2 having been stayed.

Background

2Ms. Gaurino is charged with one count of fraud over $5,000.00 contrary to section 380(1)(a) and one count of theft over $5,000.00 contrary to section 334 (a) of the Criminal Code.

3Ms. Gaurino is alleged to have defrauded and stolen funds from her employer, a 98 year-old woman, Eileen Rennie, in December 2012 as well as January and February 2013. Ms. Gaurino was one of six employees who provided 24-hour caregiving services for Ms. Rennie. Two of the caregivers were full-time employees and four were part time employees. Ms. Gaurino was a part-time employee and had worked as a caregiver for approximately 3 months prior to the alleged theft.

4Ms. Gaurino was paid $22.00 per hour. Her shortest shift was five hours, and her longest shift was 19.5 hours. On average she worked 7 or 8 hour shifts.

5Between December 7, 2012 and February 10, 2013, the period during which the alleged theft/fraud occurred, Ms. Gaurino earned $4,515.50 in income. During that same period, cheques were written to Ms. Gaurino totalling $21,145.46. That being $16,629.96 more than her salary.

6In total there were 19 cheques that the Crown alleges comprise these offences. A book of documents that included the cheques formed part of the Crown’s case. The defence admitted that these 19 cheques were written by the accused. There was no admission as to who signed the cheques.

Relevant Facts

7Ms. Rennie was completely independent until approximately January 2011 when a prior hip replacement failed and she became incapable of managing on her own. She required full-time care in order to complete all of her activities of daily living.

8A close family friend, Allan Place, acted as her Attorney for Personal Care pursuant to a power of attorney to that effect and Ms. Rennie’s lawyers, Hewitt, Hewitt, Nesbit and Reid acted as her Attorneys for Property pursuant to a power of attorney to that effect.

9Notwithstanding these powers of attorney, Ms. Rennie remained mentally competent. She had turned over the management of her finances to her lawyers and estate managers; however, she maintained control over her chequing account with the BMO and with National Bank. Mr. Hewitt would transfer funds to the BMO account as required for Ms. Rennie.

10By December 2012, Ms. Rennie was in increasing pain from her failed hip replacement and her physicians increased and changed her pain medication from Oxycodone to Morphine. Mr. Place testified that by December 2012 Ms. Rennie, while capable of engaging in discussions, was becoming forgetful and at times vague in her interactions with him.

11Mr. Place hired the caregivers, set up a daily log where the caregivers made notes about the daily activities of Ms. Rennie, including noting any visitors, health concerns and the provision of medication.

12The two full-time employees were paid a regular salary. Ms. Rennie paid the part-time employees based upon the hours they worked. By December 2012, the practice in the home was that the employees would write out the content of the cheques for their salary and Ms. Rennie would sign the cheques.

13Mr. Place had also set up a petty cash system wherein the caregivers would be reimbursed for expenses incurred such as groceries or other items purchased for Ms. Rennie; although Mr. Place typically purchased and delivered groceries to the home. Expenses incurred by the caregivers were logged on a separate petty cash log with receipts supporting the expense.

14It was Mr. Place’s evidence that there would not have been expenses that Ms. Gaurino incurred for Ms. Rennie outside of the petty cash system.

15Both Mr. Place and Mr. Hewitt reviewed the monthly bank statements for the BMO account to monitor Ms. Rennie’s accounts and to ensure she had sufficient funds to pay her expenses.

16It was when the bank statements for December 2012 were reviewed sometime in January 2013 that some discrepancies in spending were noticed. Both Mr. Hewitt and Mr. Place collected information about the hours worked by the caregivers and reviewed all the cheques that had been written on both the BMO and National Bank accounts. They ascertained that it was only Ms. Gaurino who had been receiving payments in addition to her salary.

17Ms. Gaurino’s employment was terminated in mid-February 2013 and the information was gathered regarding the cheques written.

18Ms. Rennie died in January 2014.

Legal Principles for a Directed Verdict

19In responding to Ms. Gaurino’s application, the Crown need only demonstrate that there is some evidence that she committed the offences. The Crown argued that it has introduced both direct and circumstantial evidence that is admissible against Ms. Gaurino.

20It is not my role on a motion for a directed verdict to review the evidence and conclude whether that evidence would satisfy me of proof of any offence beyond a reasonable doubt. Rather, my role is much more limited.

21The test that I must apply in this motion for a directed verdict is whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to find Grace Gaurino guilty of fraud and theft. The test is set out in the Supreme Court of Canada case of R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21:

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, ‘whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty’: [citation omitted]. Under this test, a preliminary inquiry judge must commit the accused to trial ‘in any case in which there is admissible evidence which could, if it were believed, result in a conviction’. [citation omitted]

22The Crown has introduced evidence by way of admissions which demonstrate that Ms. Gaurino received 19 cheques that she wrote and deposited into her bank account. These 19 cheques were funds in addition to her employment income, and totaled $16,629.96.

23In support of her motion for a directed verdict of acquittal, counsel for Ms. Gaurino noted that that Crown presented no evidence from Ms. Rennie as to the nature of those funds. Any statement made by Ms. Rennie regarding the nature of those funds would likely have been admissible hearsay statements of a deceased.

24Counsel for Ms. Gaurino also submitted that it is probable that the cheques were all signed by Ms. Rennie, and that Ms. Rennie may have intended the funds to be provided to Ms. Gaurino in addition to her salary.

25In considering the positions of the parties, I must consider if the Crown has adduced direct evidence on all elements of the offences charged. If there is direct evidence, then the motion for a directed verdict fails.

26In this case, there is direct evidence that Ms. Gaurino received funds through cheques that she prepared, which greatly exceeded her salary. There is also indirect evidence from the notations in the log books and from Mr. Place that Ms. Rennie was forgetful and on significant pain medication.

27In a motion for a directed verdict, the trial judge does not consider the inherent reliability of the circumstantial evidence itself but rather conducts a limited assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence (See: Arcuri, at paras. 30 and 33). The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt (See: Arcuri, at para. 23).

28Even though the defence has presented an alternate scenario whereby Ms. Rennie intended to provide the additional funds to Ms. Gaurino, on a motion of this nature, I am not permitted to choose between competing inferences. That role is reserved for the judge at the conclusion of the trial.

29In considering the evidence in the Crown’s case, I find that the evidence, if believed could reasonably support an inference of guilt. Ms. Rennie was 98 years old, in significant pain and entirely dependent on her caregivers for her daily needs. There was over $16,000.00 that was paid to Ms. Gaurino by way of cheques written by Ms. Gaurino to herself.

Conclusion

30The defence motion for a directed verdict is therefore dismissed.