Court File and Parties

COURT FILE NO.: CR-15-93 DATE: 2017/12/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Brian Caskenette

Counsel: André White, Counsel for the Crown Ian Paul, Counsel for the Accused

HEARD: Trial October 2-6, 10-13, 2017

REASONS FOR JUDGMENT

Leroy, J.

Introduction

[1] Mr. Caskenette is charged with fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code. Mr. Caskenette was the president of the Cornwall Minor Hockey Association (herein CMHA) for 7 seasons. The charges relate to the period May 31, 2011 to February 28, 2014. The main grievances arise from his personal use of a CMHA Visa card. Mr. Caskenette acknowledges personal use but denies the CMHA was deprived.

[2] Mr. Caskenette moved for a stay pursuant to subsection 24(1) of the Charter as the result of the disappearance of CMHA financial records which include all the records for the fiscal years 2011/12 and 2012/13 as well as a file of Visa statements with attached sales slips compiled by Mr. Caskenette for the 2013/14 year. The Crown produced the complete CMHA computer recorded accounting records for the pertinent time, marshalled the monthly Visa statements and most of the sales slips related to Visa card purchases. Cheque requests, bank deposit slips and Mr. Caskenette’s annotated spread sheets were not recovered.

[3] The trial on the merits and the Charter application were conducted as a single blended proceeding. The accused testified to both. The same credibility issues apply to both.

[4] The existence of a separate Visa account receipts file is in dispute. Mr. Caskenette said he kept a Visa receipts file in the CMHA accounting office filing cabinet. The bookkeepers/treasurers denied knowledge of this file.

[5] The Crown position is that a conclusion attributing this disappearance to the accused disposes of the Charter application and is circumstantial evidence of guilt. The decision to take the files is both consistent with guilt and inconsistent with another rational conclusion.

[6] The defence position is he had nothing to do with the disappearance of the missing files and the lost evidence contained vindication or at least reasonable doubt. His position in the CMHA was usurped by an unscrupulous faction hostile to his interests. The lost cheque requests, bank deposit slips and annotated receipts files are central to his defence and the loss causes sufficient serious prejudice to his fair trial interests that the proper remedy is a stay. In the alternative, the defence asks the Court to apply a benign approach to gaps in Mr. Caskenette’s perception, memory and narration in the context that the missing documents would have afforded a more fulsome answer and defence.

Background

[7] The business and affairs of the CMHA are conducted by a voluntary board. Annual revenue is variable in the range of $345,000. Revenue in the year ending 2012 was $494,000.

[8] There is a constitution – exhibit #52. Article IV of the constitution provides that the board is to serve without remuneration and no officer shall profit directly or indirectly from the position. Notwithstanding, an officer may be paid reasonable expenses incurred in the performance of board duties. Officers included the president, vice-president, director of discipline, secretary, treasurer and registrar.

[9] The constitution embodies best practices. Its dictates were generally honoured. For example, the secretary’s principle function was to ensure an accurate record of all board meetings in writing and maintain copies for future use. The board witnesses confirmed that the secretary maintained minutes and they were consistently circulated before the next meeting. Minutes were not archived.

[10] By-Law IV deals with expense reimbursement entitlement and process. All expense claims are to be submitted to the treasurer on the prescribed form supported by invoices, receipts, bills and other relevant documents.

[11] The CMHA moved its offices to the Benson Center in summer 2011. In the process, someone stole the association hockey equipment. There were expenses associated with the move. The CMHA occupies 2 adjoining offices, an equipment and laundry room in the Benson Center. Mr. Caskenette orchestrated and implemented the move.

[12] The impression is that Mr. Caskenette was the moving force. Mr. Caskenette was able to devote a full-time presence to the interests of the CMHA. He attended to replacing the stolen equipment, and outfitting their facilities so they were set up for the 2011/12 season.

[13] The main grievances against Mr. Caskenette begin in November 2011 with the inaugural local mileage claim and the CMHA Visa card issued to Mr. Caskenette. Before then he followed the practice depicted in by-law IV of submitting the cheque requisition together with supporting documents – exhibit 19.

[14] The Crown elicited a few pre-November discrepancies that include an $80 walkie-talkie set – cheque 2046, possible double claiming on the equipment room garment racks - $199 – cheque 2046 and 2041 and reimbursement on a cash advance of $200 – cheque 2068. Mr. Caskenette incurred a charge of $13 for pet food included within a sales slip for legitimate CMHA purchases.

[15] Not much turns on these matters. Mr. Caskenette confirmed the communication devices were for the rink. There is a notation on cheque requisition 2046 suggesting that the cheque was endorsed back to the association. Mr. Caskenette acknowledged the oversight regarding the cash back and pet food for a total of $213.

[16] Mike Piquette observed that Mr. Caskenette’s efforts for the CMHA were full time. There was a lot of in-town driving and a cell phone had become indispensable. He confirmed it was his motion at the October 4th, 2011 meeting to reimburse Mr. Caskenette for cell phone expenses and in-town CMHA related mileage in addition to out-of-town meetings.

[17] Mr. Piquette took credit for initiating use of an association credit card at Mr. Caskenette’s disposal. He thought a dedicated credit facility would simplify record keeping and relieve Mr. Caskenette from having to personally front CMHA expenditures. His recall was that if the card initiative was not approved at the October 4th 2011 meeting then it was approved by the board at a meeting shortly before or after.

[18] Mr. Caskenette began charging for mileage at the rate of $.55 per kilometer beginning October 5, 2011. The rate is not in issue. He tendered monthly mileage spreadsheets through to 2014. The same for the cell phone. He tendered the monthly invoice to the bookkeeper for reimbursement.

[19] The credit card was issued in November 2011.

[20] The board recognized that Mr. Caskenette was entitled to mileage reimbursement. Travel reimbursements for mileage and gas for the year 2011/12 of $8,918 were approved at the May 2012 AGM without comment.

[21] The account lines for travel and ODHA/ODMHA/Meetings/Hearings accrued through the 2012/13 fiscal year were $5000 and $5982 respectively. The minutes of the May 14, 2013 AGM reflect that in the discussion relating to the annual financial report these disbursements were questioned and Mr. Caskenette provided details of the costs incurred. The financial report was approved.

[22] Mr. Caskenette was cross-examined at length about the reliability of the daily mileage claims. Mr. Caskenette held fast in the position that he only charged in-town travel for accruals on the way to the rink and he made multiple trips daily.

[23] The substance of the fraud prosecution lies in Mr. Caskenette’s use of the credit card. The short summary is that between November 23, 2011 and April 15, 2014 there were cash advances of $34,192, costs associated with cash advances of $503, fuel purchases of $3,224 - as well as charges for admitted personal use items amounting to $9,080 and contested personal use items of $4,667.

[24] Mr. Caskenette agrees he is the only person who used the credit card, excepting the time his sons used it to pay for the boater exam and the MNR permits.

[25] Mr. Caskenette’s position is that he repaid any and all personal use accruals on the Visa account. He was entitled to compensation from the CMHA for various teaching exercises. He off-set some of the personal use Visa expenditures against compensation owing. The rest was re-paid by two cash deposits that were noted on the missing bank deposit slips.

[26] The Visa account control came into focus beginning in spring 2013 when the independent auditors first raised queries about the cash advances and receipt deficits in relation to the 2011/12 fiscal year. The Visa charges from November 2011 to May 31, 2012 totaled $20,404. Of that amount, the auditors did not have receipts for $16,200. The deficits were never reconciled and, by the time the auditors were able to meet with the CMHA board, Mr. Caskenette had been deposed.

The Charter Application

[27] Mr. Caskenette asserted that he kept detailed records of Visa charge expenditures from the beginning. He attached the receipts to the monthly statement and filed them in the Visa file for the current year in the CMHA financial office. That is untrue.

[28] The bookkeeper Jeanette Lavallee recalls receipt of the monthly statements for the period November 2011 to March 2013, but denies receiving receipts or expense allocation spreadsheets.

[29] The parties agree that the email chain between the auditors and Mr. Caskenette through 2013 recorded their dialogue. Mr. Caskenette did not mention a lost receipts file.

[30] Blair Fitzpatrick was appointed to assume management of the CMHA on or about May 13, 2014. He entered the CMHA office with a city employee on May 13, 2014. He returned with the then treasurer, Ms. Dallaire on or about May 15, 2014. He recalled having seen one of the Caskenette spreadsheets allocating Visa based expenditures among CMHA sub-accounts. He thought the financial files were intact when he attended with the city employee.

[31] Ms. Dallaire said that the 2012/13 files were in the bottom drawer and the current year, 2013/14 inclusive of the file with the monthly Visa statements and account allocation spreadsheet in the top. When she opened the drawers with Mr. Fitzpatrick on May 15, 2014 the bottom drawer was empty and the Visa statements file was gone from the top drawer. She said their records were intact two or three weeks earlier when she had last attended to record entry.

[32] Mr. Caskenette iterated that he allocated personal use Visa purchases to account 5300 – CMHA general expense account. It is correct that the monthly Visa balances for 2011/2012 and several months of the 2012/13 season were entered into account 5300 in whole without allocation among CMHA sub-accounts. In spring 2013, after the auditors requested receipts and allocation of the various Visa charges, both bookkeepers confirmed they inputted the various charges in accordance with Mr. Caskenette’s account allocation instructions.

[33] Mr. Caskenette’s draft retrospective allocations for the 2011/12 audit– except for the boating exam and MNR permits as well as the re-allocation performed in March 2013 for the 2012/13 season - cleared the general expense account accrued from the Visa charges in full in favour of CMHA sub-account assets or expenses. The remaining general expense balances were unrelated to the use of the Visa account.

[34] The only personal use charges remaining in 5300 are the charges for the boater exam and MNR licenses in May 2012 and the $803.50 in the May/June 2013 statement. Everything else was cleared to a CMHA sub account.

[35] The Crown productions were offered as sufficient substitute for the records taken from the office. There is a live issue as to whether any sales slips were removed given that neither bookkeeper had seen sales slips in the file. The fact of lost spreadsheet allocations is substituted by the accounting records. The records reflect exactly what Mr. Caskenette allocated at the time the Visa account was paid each month.

[36] Mr. Caskenette said:

1. That except for cash without tax or receipt purchases for CMHA, he kept the receipts and attached them to the monthly Visa statements which were stored in the accounting office filing cabinet. He also said he accurately allocated CMHA spending to the correct account and kept a detailed record of personal purchases which were to be allocated to the CMHA general expense account for reimbursement;
2. That from time to time, he sat with the bookkeeper/treasurer, Ms. Lavallee, to alert her to the proper CMHA sub-account allocations and personal charges;
3. That cash repayment would be marked on deposit slips as credit to account 5300;
4. That repayment by way of compensation off-set was noted on cheque requests. His annual compensation amounted to approximately $4,000;
5. That it was when he and Ms. Lavallee met with the accountant in 2013 in relation to the 2011/12 audit he learned the Visa statement folder with receipts, allocations and personal charges spreadsheets did not go to the accountants and it was no longer in the filing cabinet. The receipts for purchases made with Visa cash advances were missing.
6. That the personal records he used for Visa account reconciliation were discarded at year-end after he was satisfied he reimbursed the CMHA for personal charges on the card.

Jen Lavallee who was the bookkeeper until mid-2013 said:

1. The monthly Visa statements were entered into the system under general expense account 5300 without proper or any allocation until the accountants required documents and account allocations in 2013;
2. She did not see receipts;
3. She did not know about a Visa file in the accounting office filing cabinet;
4. She was not part of a discussion with the accountant over missing receipts;
5. She was never part of a discussion with Mr. Caskenette about a missing Visa receipts file;
6. There was never a discussion with Mr. Caskenette about using general expense account 5300 to record personal charges;
7. If Mr. Caskenette made cash deposits she would notice because her deposit accounts would not reconcile;
8. There was no discussion with Mr. Caskenette about off-setting compensation entitlement against personal charges on the Visa card;

What happened from the recorded accounting perspective:

1. The CMHA paid the monthly Visa account balance in full from the first to last month;
2. The balance each month was entered in account 5300 general expense without subset allocation through to April 2013;
3. In February 2013, the auditor initiated the first document deficiency communication;
4. The email string between the auditor and Mr. Caskenette suggests that Mr. Caskenette was apprised of deficiency particulars – Mr. Murphy referenced a meeting in early August/late July 2013 with Mr. Caskenette;
5. On August 13, 2013, Mr. Caskenette confirmed no further information was located and instructed the auditor to close the CMHA books with what had been provided to date;
6. The auditors attempted to schedule a meeting with the CMHA financial committee through Mr. Caskenette. There were emails back and forth through to the end of Mr. Caskenette’s tenure without a meeting;
7. The audit deficiencies for the 2011/12 audit were listed in the auditor’s letter to the CMHA dated May 12, 2014. The disclaimer of opinion resulted from the absence of documentation for amounts recorded and expensed in the financial records in the amount of $16,250, all arising from the use of the Visa card between November 23, 2011 and May 11, 2012.
8. Exhibit 20 comprises marked Visa statements between November 17, 2011 and May 16, 2012 and attached account allocations authored by Mr. Caskenette retrospectively. He acknowledged authorship but qualified it as draft only. The only recorded remnants to account 5300 are for the boater’s exam and MNR licenses in May 2012.
9. Ms. Lavallee completed a retrospective Visa account reallocation from 5300 general expense for the period May 17, 2012 to April 16, 2013 entered on March 1, 2013 (J796). The re-allocation cleared the Visa charges from account 5300 save as noted.
10. The Visa allocations for May/June 2013 excluded the sum of $803.50 which remained in account 5300 – the charge for the De Walt saw and cash advances over $1,000 were included in the balance owing for that statement.
11. In the period June 13, 2011 to November 12, 2013 there are no recorded cash inputs or any other recorded indicators of contribution from Mr. Caskenette to CMHA general expense account – 5300

Does the evidence establish who is responsible for document removal?

[37] From Mr. Caskenette’s perspective, his documents were removed twice.

[38] Mr. Caskenette said there were missing files realized in March 2013 and again in May 2014. The receipts he thought went to the auditor did not and could not be found at the financial office. For 16 months, the full Visa balance month to month was recorded as debit general expense and credit cash. Ms. Lavallee denied knowledge of the receipt folder. The receipts were not found and Mr. Caskenette advised the auditor of such and instructed him to conclude the effort as it was.

[39] It would be dangerous to ascribe the document removal to any specific person based on inconclusive circumstantial evidence. The only person who knows what happened to the missing files is the person who removed them from the secure CMHA finance office filing cabinet.

[40] The only officers with keys to the CMHA finance office were the president and treasurer/bookkeeper. By April 2014, those positions were held by Ms. Dallaire and Ms. Latour.

[41] Debbie Caskenette and Chantal Latour removed something from the CMHA office in early April 2014 in bankers’ boxes – Gerald Sauve, Chantal Latour. No witness at trial was able to describe the box contents.

[42] There is a chance the missing records were in those boxes. It is as likely that the content related to unrelated day to day CMHA business. Chris Filion credited Debbie, Brian and Chantal with as he said “running the place – Anything he wanted they made it happen.” Ms. Dallaire’s confirmation that the files were intact at the end of April 2014 erodes the reliability of the inference sought by the Crown that much more.

[43] On the other hand, I am not persuaded of an unscrupulous conspiracy to incriminate Mr. Caskenette by removing documents that might tend to vindicate his actions with the credit card.

Applicable Principles

[44] The applicant has to show actual prejudice and not simply that the loss of the evidence would have made putting his defence position forward more difficult.

[45] Mr. Justice M.A. Code summarized the “lost evidence” s. 7 Charter analysis in R. v. Hassan, 2014 ONSC 1345 at paragraphs 9 and 10 as follows:

[9] A s. 7 Charter Application that rests on an allegation of “lost evidence”, as in the case at bar, is one of the more analytically complex species of Charter litigation. That is because the case law has recognized three distinctly different kinds of Charter breaches in this context:

• First, a violation of the right to disclosure can be alleged. This involves two separate issues: whether the lost evidence was relevant, in the Stinchcombe sense of not being “clearly irrelevant”, and should therefore have been preserved; and whether this relevant and disclosable evidence was lost due to “unacceptable negligence”;
• Second, it can be alleged that the evidence was lost due to an “abuse of process”. This may involve deliberate destruction of evidence, where state actors intend to frustrate the administration of justice, but can also include a high degree of negligence by state actors;
• Third, a violation of the right to a fair trial can be alleged. Even where unacceptable negligence or abusive conduct by state actors cannot be established under the first two forms of s. 7 breach, the loss of some particularly important piece of evidence may cause sufficiently serious prejudice to fair trial interests that it amounts to a s. 7 breach.

See: R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.); R. v. Vu and La (1997), 116 C.C.C. (3d) 97 (S.C.C.); R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Knox (2006), 209 C.C.C. (3d) 76 (Ont. C.A.).

[10] The above three kinds of s. 7 breach differ significantly because the first two involve some degree of fault analysis, at the s. 7 violation stage, with less emphasis on the importance of the lost evidence or on any prejudice to the result at trial until the s. 24(1) remedies stage of analysis is reached. The third kind of breach, conversely, focuses on the importance of the evidence and on prejudice, at both the violation stage and at the remedies stage, and does not depend on any kind of fault. The three kinds of s. 7 breach also differ in terms of the burden of proof as a failure to preserve relevant evidence, in relation to the right to disclosure, shifts the burden to the Crown to prove an absence of “unacceptable negligence”. The other two forms of s. 7 breach place the burden on the defence throughout. The degree of prejudice to the administration of justice or to the result at trial is a highly relevant consideration at the s. 24(1) remedies stage, in the case of all three forms of s. 7 breach. In particular, a stay of proceedings is only appropriate in exceptional cases, where irremediable prejudice can be demonstrated and where lesser remedies will not suffice.

[46] What must be established on a balance of probabilities is that the missing evidence creates a prejudice of such magnitude and importance that it can be fairly said to amount to a deprivation of the opportunity to make full answer and defence – R. v. D.J.B. [1993] O.J. No. 1662 (ONCA).

[47] In the case at bar, it is the third kind of breach that is alleged. State agents did not enter the scene until after Mr. Fitzpatrick and Ms. Dallaire noticed documents were missing. The issues on this application involve identification of missing evidence and its importance and the consequential prejudice.

[48] To determine whether actual prejudice has occurred, I must consider whether other evidence containing essentially the same information existed. See R. v. Bradford (2001), 151 CCC (3d) 363 at paras. 7 and 8.

[49] The missing documents that Mr. Caskenette identifies as most important are the depositor bank deposit slips on which he marked reimbursement cash deposits, cheque request forms on which he made written instruction to discount his compensation owing to offset Visa personal charges and the sales slips file where he delimited CMHA allocations from personal charges.

Deposit slips

[50] The prejudice alleged relates to the specific contents of the deposit slips themselves.

[51] Mr. Caskenette said he reimbursed the CMHA with cash twice. The missing deposit slips would prove such to be the case as the identity of each source of cash is a particular of the deposit summary on file. Each deposit would be entered as debit – cash and credit to player account receivable or credit donations or sponsors. If Mr. Caskenette deposited cash, the entry would be debit – cash and credit Caskenette receivable or credit to expense 5300.

[52] That those entries were not made is not surprising.

[53] Both bookkeepers denied the following:

1. Knowledge of personal charges on the Visa card;
2. Allocation of personal use charges to CMHA general expense account 5300 s/e for the boater’s exam and the wildlife cards;
3. Knowledge of cash reimbursement for personal use charges;
4. Knowledge of the off-set of trainer compensation for personal use Visa charges.

[54] Mr. Caskenette ascribed their denials as regards the deposit slip recording to their neglecting to review the particulars of the pertinent deposit slips. He emphasized that he is not a bookkeeper and it was not his role to perform data entry. He should not be discredited for the bookkeepers’ omission.

[55] He suggested their denials are not credible because Ms. Lavallee chose to protect her personal interests as city employee ahead of sincerity and Ms. Dallaire sided with the element who replaced the Caskenette regime at the CMHA adverse in interest to him.

[56] Both bookkeepers confirmed balanced deposit entry and were clear that if there were cash deposits for personal charge reimbursement, the debit cash side would be out of balance with the credit revenue side and they were not. Even if the entries involved debit cash and credit 5300, there were no such entries over the pertinent time.

Marked Sales Slips

[57] The Investigating Officer was able to marshal most of the sales slips generated from credit card purchases. He could not recapture sales slips for cash purchases.

[58] Mr. Caskenette said he only retained receipts for personal use items purchased with Visa proceeds. He said at other times he maintained a complete file of receipts.

[59] Mr. Caskenette was unable to explain CMHA purposes for many sales slips presented to him. He offered that if he had the annotated slips he would be better able to explain.

Missing Cheque Requisition Forms

[60] Mr. Caskenette confirmed that he did not offset mileage or cell phone reimbursement against personal Visa purchases. His other source of income from the CMHA derived from instructor compensation.

[61] Between November 2011 and December 2nd, 2013 he received the following instructor fees:

November 18, 2011 - $800 January 17, 2012 - $800 December 22, 2012 - $1,500 March 1, 2013 - $950 December 2, 2013 - $780

[62] If what Mr. Caskenette says is correct, then on the occasions in question, either the cheque he received was for more than he claimed and it was incumbent on him to correct the error or there would have been credits to general expense account 5300. There is no evidence of CMHA account entries to correct the over-payment and as noted, there were no credit entries to 5300 except for the retrospective allocations.

[63] Mr. Caskenette asserts he declined goalie instructor fee entitlement of $1,500 over 3 years and the sum of $1,150 in instructor fees otherwise owed to him for a total of $2,650 that should have been credited to 5300 and debited to accounts payable (instructor fees payable). Those entries do not exist. At best, these were off-the-books transactions – He did not charge for the worth of instruction time owing and that sufficed to set off against the equivalent personal charges. No accounting records involved. The problem is that the Visa charges were already allocated to CMHA sub accounts unaffiliated with personal use.

Principles applied

[64] The CMHA accounting records through the pertinent period are a mirror reflection of CMHA financial activities. The objective of a structured accounting program and audit is to ensure financial record reliability and accountability. The entire Visa statement history and most of the questionable sales slips were marshalled. The records were made contemporaneously with Mr. Caskenette’s instruction.

[65] At Mr. Caskenette’s request, the Crown copied and produced all of the pertinent accounting files. The accounting records were generated as the result of financial information as it was presented to the bookkeepers in the normal course of CMHA business. They are the CMHA business records secondary to the real evidence of the cheque request form and deposit slips. As such, they are admissible and reliable for the truth of their contents. I do not credit accounting records with slavish acceptance but the records do not reflect personal charges on the credit card – other than as noted earlier, cash reimbursement or compensation discount. The sheer number of personal charges acknowledged in the absence of an entry indicates they were not acknowledged as such at the time.

[66] The investigating officer was able to obtain copies of every pertinent Visa statement as well as most sales slips, all of which are admitted.

[67] Mr. Paul argued continuity issues and that the recording of entries to the 5300 account was delimited as term end summary not reflective of entries as they occurred. Neither stands scrutiny. Every entry in the Sage program is recorded as a sequential “J” number for the pertinent fiscal year. If anyone tried to change an account entry retrospectively the “J” number would be incongruous. There are no such indicators. Every account entry for the 5300 account between November 2011 and December 2013 was part of the production package. The card balances were charged to 5300 for 16 months after inception. Once that was cleared out as indicated by the “J” entry and the charges allocated at Mr. Caskenette’s instruction, the only personal use charges allocated to 5300 were the boater exam and the MNR licenses and the $803.50 in May 2013. There were no cash or other credits to that account associated to Mr. Caskenette in that period.

[68] The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency, consistency with other evidence, the availability of other sources of information and context – the significance of the event to the witness at the time it was perceived and whether the evidence accords with logic, common sense and human experience.

[69] The testimony from Mr. Caskenette and the bookkeepers is divergent about the substance of the financial documents in the filing cabinet from time to time as well as how they processed the monthly Visa statement.

[70] Whether or not the bookkeepers were adverse in interest to Mr. Caskenette at trial they were not adverse to him during the data entry periods.

[71] Ms. Lavallee characterized her function squarely in the bookkeeper function at the material time. She engaged on the premise that this volunteer position demanded two hours a month. She worked for the city with Mrs. Caskenette. She tried to resign from the CMHA as early as 2011, but was persuaded to stay on by the President and executive on the understanding she did not have to attend monthly meetings. She resigned as treasurer.

[72] She took Mr. Caskenette at his word. Every month, beginning in November 2011, Mr. Caskenette delivered the mileage and cell phone invoices for payment. Beginning in December, he delivered the monthly Visa statement.

[73] The documents Mr. Caskenette could not marshal for the auditor in 2013 were documents he discarded.

[74] If Mr. Caskenette provided timely allocation data/instruction it would have been entered. For sixteen months, the Visa balance was debited to CMHA general expense without sub-account allocation. There were gas purchases, cash advances and other charges every month in the range of $4,000. Relatively speaking, those unaccounted amounts were disproportionate. All of the other financial data entry work for the CMHA was kept up.

[75] Mr. Caskenette said that the problem with the 2011/12 audit was that the bookkeeper did not instruct him to retain sales slips and receipts. That is inconsistent with the assertion he maintained a receipts file in the CMHA office. As disingenuous as that position is for the president of a volunteer association to take, the obvious inference is he did not as a matter of practice retain receipts between November 2011 and March 2013 for Visa expenditure, nor did he allocate monthly Visa accounts to the proper sub accounts.

[76] Neither treasurer/bookkeeper had motive to side against Mr. Caskenette. As a matter of human experience, had either known of Mr. Caskenette’s practices regarding personal use charges to the CMHA credit card, there would be immediate resignations or board disclosure or heightened vigilance over accountability. I do not accept that Ms. Lavallee knowingly evaded an obviously treacherous slippery slope for 16 months.

[77] Ms. Lavallee cited personal reasons for resignation in the fall of 2013. She said at trial that her reasons were more closely coincident with the auditor’s concerns for missing documents. I accept that when she finally resigned, she was doing her best to be discreet. She was a long-term co-worker with Ms. Caskenette and at the time continued to trust Mr. Caskenette’s representations.

[78] Nor did Ms. Dallaire have motive to lie. She engaged under Mr. Caskenette’s tenure. That she continued to serve after Mr. Fitzpatrick assumed management does not imply she became invested in the politics of the takeover. She did some catch up entries and paid the monthly Visa statements, mileage and cell phone invoices. She recalls the Visa statements and spreadsheets – no receipts.

[79] The data entry person role is mostly mindless. If there were personal use allocations indicated on a spreadsheet they would be reflected in the accounts – they were not.

[80] Neither bookkeeper has recall of personal use disclosure or methods of reimbursement. It is apparent from the CMHA financial records that neither ever entered personal use entries nor did they ever enter entries to reflect repayment.

[81] What was lost was replaced with other evidence containing essentially the same information. I do not accept there were spreadsheets that earmark certain Visa charges for personal use – or that the receipts for the sundry charges were in the file in 2014 – or that the cheque requisitions reflected personal cash reimbursement or set-off against trainer fees.

[82] Mr. Caskenette has not shown on a balance of probability that there were cheque request forms, cash deposit slips or personal use allocations that record his memory. Had there been there would be account recognition. He has not shown that the lost documents contained information to his advantage or that they were not replaced with other reliable evidence. Real prejudice is not made out. The Motion for Charter relief is dismissed.

Base Principles

[83] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials. A criminal trial is not an inquiry into what happened, or whose case is stronger. Its ultimate function is to determine whether the Crown can prove the specific allegations beyond a reasonable doubt.

[84] The presumption of innocence stays with the accused throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. Caskenette does not have to prove anything.

[85] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[86] The principle of reasonable doubt applies to credibility. It is not necessary to believe the defence evidence on the essential issues, rather it is enough that in the context of all the evidence the conflicting defence evidence leaves a reasonable doubt about Mr. Caskenette’s guilt.

[87] That said, a trial judge can reject the testimony of an accused and convict solely on the basis of acceptance of Crown evidence, provided the Court gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding acceptance of Crown evidence.

[88] The principle of reasonable doubt is not to be applied to individual pieces of evidence or categories of evidence.

[89] The proper focus is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood or other dishonest act) knowing the consequences of deprivation or risk of deprivation.

[90] The essential elements of fraud are:

1. That Mr. Caskenette deprived the CMHA of something of value;
2. That Mr. Caskenette’s deceit, falsehood or other fraudulent means caused the deprivation;
3. That Mr. Caskenette intended to defraud the CMHA; and
4. The value of the property exceeded $5,000.00.

[91] The words other fraudulent means includes means which are not in the nature of a falsehood or a deceit and they encompass all other means that can properly be stigmatized as dishonest. Deprivation is satisfied on proof of detriment, prejudice or risk of prejudice. Actual loss is not essential. R. v. Olan, [1978] 2 S.C.R. 1175.

[92] The actus reus of fraud is determined objectively by reference to what a reasonable person would consider to be a dishonest act whether it be deceit, falsehood or other fraudulent means. The mens rea of fraud is established by proof of subjective knowledge of the prohibited act and by proof of subjective knowledge that the performance of the prohibited act could have as a consequence the deprivation of another. An accused’s belief that an act is honest will not avail if it is objectively dishonest as determined by reasonable persons. That is distinguishable from the situation where the accused’s belief in facts if true would deprive the act of its dishonest character – R. v. Theroux, [1993] 2 S.C.R. 5.

[93] The trier may accept all, some or none of what a witness says. Of the evidence accepted, the trier may associate different weights to individual parts of the evidence.

Positions of the parties on the issue of the fraud charge

[94] The Crown position is that fraud has been proven beyond reasonable doubt. In particular,

1. Mr. Caskenette knowingly and dishonestly deprived the CMHA by incurring charges on the CMHA Visa card in excess of $5,000 for personal use acquisitions or activities that were improperly charged against the CMHA;
2. Mr. Caskenette deceived the CMHA by allocating personal use purchases to CMHA purchase or expense;
3. The accused did not reimburse the CMHA for personal purchases by way of cash deposits or by discounting compensation entitlements or at all;
4. That the accused bought Christmas 2013 presents for personal use under the guise of board member appreciation;
5. The accused charged fuel purchases for the same mileage claims;
6. Although the exact amount is not quantifiable, some of the cash advanced was spent on matters unrelated to CMHA affairs. Cash advances during summer vacation are without doubt personal use;
7. A reasonable person would consider this conduct to be dishonest act whether it be deceit, falsehood or other fraudulent means.
8. The accused intended to retain the benefits knowing that his benefit worked to the detriment of the CMHA.

[95] The defence position is that the Crown has not proven the case beyond reasonable doubt. W(D) applies. His evidence was sufficient to raise reasonable doubt. He argues that:

1. Circumstances have been rigged by the successor regime at the CMHA to discredit him;
2. He reimbursed the CMHA for all personal use charges on the Visa card by way of cash deposits or by discounting compensation entitlements;
3. He denies that the disputed seized items were purchased on the Visa card;
4. The main difficulty with satisfying the auditor’s request for receipts during the 2011/12 audit is that the treasurer did not require receipts for cash advances until the auditors did in May 2013;
5. All of the gas purchases were over and above mileage claims;
6. All of the cash advances except for the money advanced during the summer vacation 2013 were spent on CMHA business;
7. That the treasurer/bookkeepers did not recognize designated personal charges as general expense account 5300 items or reimbursement by cash or requisitions with deductions was because she did not read the cheque requisitions or deposit slips;
8. The balances in general expense account 5300 comprise year end outstanding balances and do not reflect amounts that were settled during the accounting period;
9. The missing cheque requisitions and deposit slips confirming cash re-payments would have vindicated him and their loss makes this an unfair trial.
10. The accounting records are unreliable – for example exhibit 2 does not match the records for all transactions in 5300.

Analysis and Conclusion

[96] The financial records were admitted on consent. I accept them to be an accurate and reliable reflection of the information and data presented to the bookkeepers. I commented earlier about the purpose of accounting recording and the proficiency and credibility assigned to Ms. Dallaire and Ms. Lavallee. Both followed instructions and entered financial data as it was presented. They were unaware of personal charges on the credit card and were not privy to a repayment process. When they entered Visa account sub-allocations they accepted Mr. Caskenette’s instruction.

[97] All in all, I thought the testimony from the collateral witnesses was candidly given. I agree that the Latour evidence clearly favoured Mr. Caskenette and if much turned on their evidence more would have to be said.

[98] I accept the board approved the in-town mileage and the credit card. Both Mr. Caskenette and Mr. Piquette explained the valid purpose behind both. The mileage approval from the board is compatible with the constitution. The Visa approval is questionably constitutional but that is not a fraudulent action by Mr. Caskenette. Used for its purposes, the card had valid practical attributes.

[99] The lending institution required the banking by-law to issue the credit facility. The Crown suggested that the mileage by-law was a forgery and the Visa approval never happened. The constitution requires that all minutes be archived. The archived minutes if they exist were not adduced.

[100] As with all witnesses, I can accept some, none or all of Mr. Caskenette’s testimony. When this began in November 2011, Mr. Caskenette’s word within the association was respected without question. He, along with his spouse and the Latours were the operating executives of the CMHA. It was a busy time with the move to the Benson, setting up of the office, the theft along with the usual operations.

[101] Mr. Caskenette’s testimony raised issues that, if accepted, would be full answer to the charge or, even if not accepted, might leave reasonable doubt as regards an essential element.

[102] It was recognized that Mr. Caskenette devoted full time to the tasks of operating the association. He was back and forth to the rink many times daily and he travelled through the various eastern districts to represent CMHA interests. I accept that he shopped for the best deals for the organization, at times paying cash without receipt to get the biggest discounts.

[103] That said, flaws in Mr. Caskenette’s credibility were exposed. At one point in testimony, he acknowledged he knew it was wrong to use the credit card for personal use. He then said that as his name was on the card, he believed he was liable for charges and he was free to use it for personal purchases. Connecting the Leons Desjardins card use restriction for not using his own credit cards for personal purchases was a misdirection in light of the later acknowledgment that his cards were at their maximum balance. On the critical issue of his practices, relative to reporting and accounting for card use, he began from the position where he provided monthly coded spreadsheets with receipts as the statements arrived to Ms. Lavallee and then conceded that he only gave her the Visa statement without spreadsheets or receipts. As it turned out, he did not retain receipts over the first 16 months of card use or if he did, it was his practice to discard records after he conducted his own reconciliation.

[104] It was Mr. Caskenette’s choice to commingle his personal affairs with those of the CMHA. Mr. Caskenette was the long-term president of the CMHA and knew it was inappropriate to use the Visa card for personal purchases. He knew of the obligation to maintain detailed records. He was familiar with the culture of accountability and restraint defined in the constitution and in operational history. He was familiar with the accounting system, if not the mechanics. He knew of the various sub-accounts and the significance of proper allocations.

[105] Mr. Caskenette was the only person who used the Visa card. He was the only person who could possibly know where to allocate purchases and expenses. When he was asked to allocate the Visa account accumulation over 16 months in spring 2013, he was cognizant of personal use charges over and above the boater exam and MNR permits and allocated those to CMHA sub accounts other than general expense 5300.

[106] I do not accept the following assertions from Mr. Caskenette:

1. That he apprised the bookkeepers of personal use charges on the credit card in a timely fashion or at all. If he had, there would have been an account opened in his name and the personal charges would have been red flagged;
2. That he marked personal use charges in the allocation exercise;
3. That he reimbursed the CMHA for personal use charges in cash and by way of compensation set-off;
4. That the acknowledged personal use charges constitute all of the personal charges to the card.
5. That the accounting records do not reflect all entries over the pertinent period.

[107] I dealt with the grounds for these conclusions position earlier in these reasons.

Cash withdrawals and gas charges

[108] Mr. Caskenette asserted that except for three cash withdrawals totaling $950, the cash advances were used exclusively for the benefit of the CMHA. He is unable to account. He did not retain the receipts for the 2011/12 withdrawals. He said he attached receipts for cash purchases after the auditor intervention.

[109] In R. v. Abramenko, [2008] A.J. No. 61, the accused was charged with fraud and breach of trust in relation to the withdrawal of funds from his disabled son’s savings account he could not account for. The Crown submitted that the inability to account should lead to the inference that the accused committed an act of fraud by withdrawing that money. Justice Fradsham wrote that the question is not whether the accused can account for every dollar. The question is whether the inability to account can properly lead to an intent to defraud on the part of the accused.

[110] In the case at bar it does. The Visa card did not change the core accountability practices at the CMHA. The cash advances recorded in the statements total $34,192. Mr. Caskenette was attuned to the value of detailed financial record keeping. The system in place until November 2011 placed a heavy emphasis on documentation and veracity. The constitution required transparent association spending.

[111] Mr. Caskenette made cash withdrawals from the beginning. For 16 months, no attempt was made to allocate Visa spending to proper CMHA accounts.

[112] I cannot accept that the other $33,000 was spent exclusively on legitimate CMHA acquisition. I do not believe that assertion. He used Visa card cash advances for personal purchases and allocated those purchases to CMHA accounts.

[113] There is no way to quantify the cash withdrawal amount Mr. Caskenette spent on personal use. The Crown proved the withdrawals and they are not disputed. I accept; however, that a significant portion of the cash withdrawals were spent on legitimate CMHA purposes.

[114] A reasonable person would consider the use of any cash withdrawals on the CMHA Visa card for personal use to be a dishonest act. Mr. Caskenette knew when he made personal use of the Visa proceeds and the CMHA paid the monthly balances in full.

[115] Mr. Caskenette said he was alert to the cash advance fees and he paid them. They total $503. There is no record of reimbursement. Given there were valid CMHA cash withdrawals the advance fees likely belong to the CMHA in any event.

[116] Mr. Caskenette held fast to the position he charged mileage actually incurred and the gas purchases were over and above the mileage claims. He denied double charging. The gas station charges total $3,224. He said that in several cases, he paid for gas when other members of the executive drove their vehicles and in others, he purchased gas for situations when he did not charge mileage.

[117] Mr. Caskenette knew that double charging for gas and mileage was dishonest.

[118] The association recognized that Mr. Caskenette was the executive face of the CMHA and he ought to be reimbursed for his mileage and phone expenses. The issue was specifically discussed at the May 2013 AGM and approved.

[119] That said, the Visa card charges were lumped into general expense at the time so that the extra gas station purchases were not on the agenda. As well, I do not understand why Mr. Caskenette would pay for gas with the card to fill another board member’s tank. If that member was entitled to reimbursement, that member would deliver a cheque requisition.

[120] Regardless, I am not convinced that Mr. Caskenette double charged for gas and mileage.

[121] It may have been unwise or remiss for the board to not place some kind of limit on mileage expenses, but it cannot be an act of criminal dishonesty on the part of Mr. Caskenette to have greater expenses than anticipated.

Other Card Purchases

[122] The acknowledged personal purpose Visa Card purchases total approximately $9,000. The purchases of disputed items Mr. Caskenette said were either for the benefit of the CMHA or purchased from his own resources total approximately $4,666. Some of the disputed purchases relate to items seized and some to incongruent purchases. The Crown argues that Mr. Caskenette’s Christmas party buying binge was a cover for personal use gifts.

[123] Mr. Caskenette’s position is that the acknowledged personal use purchases were identified as CMHA general expenses and settled by cash or compensation credits. As noted earlier, that is not true.

[124] Mr. Caskenette did not declare $9,000 or any amount other than those noted earlier as personal use purchases.

[125] The contested seized items are problematic. The IO secured the sales slips for the contested items. In particular, the DeWalt saw in May June 2013, the two televisions, drying rack, air compressors, wardrobe, pantry, work bench, Dremmel saw and snow shoes located in the Caskenette home match sales slips resulting from Visa card purchases. Mr. Caskenette said the snow shoes were a raffle item. He said the saw identified on the sales slip is not of the same quality as the one he owns. The CMHA was established in the Benson when the saw was purchased. The CMHA did not have use for the saw in 2013. He said that when he was deposed, all but the snow shoes were stored at the rink.

[126] I do not believe his assertions on these items. Nor does the assertion make it a reasonable possibility. No one else recalls these items in the Benson Centre. No one recalls the snow shoe raffle. If the CMHA owned two flat screen television sets for training purposes, it would be common knowledge. The De Walt model line as well as end of line sales discounts explain the reduced price. There was no rational CMHA purpose for the purchase of the saw in May 2013. Those items were purchased with CMHA Visa funds.

[127] Mr. Paul argued that Mr. Caskenette ought to be believed because he knows best. He acknowledged the other items – why challenge these in particular? I do not know why he resisted these items and not others and it would not do to speculate.

[128] A reasonable person would consider these activities to be dishonest. The CMHA is out of pocket for the cost.

[129] As for the miscellaneous charges:

i. LCBO charges – Mr. Caskenette does not recall these purchases; ii. Auld Kirktown - $552 – March 1, 2012 – Mr. Caskenette does not recall this purchase; iii. May 4, 2013 – Total Cyclery - $508 – Mr. Caskenette said initially this was a September purchase for tournament raffle – when he realized it was purchased in May he thought it may have been for early registration. No other witness recalls the bicycle raffle or for that matter any early registration raffle; iv. Christmas party 2013 – Mr. Caskenette said he purchased gifts for the female board members valued at $965 for this party. The Crown alleges that to be excessive and that a portion was spent on personal gifting unrelated to the CMHA. v. Dworkin Furs – December 13, 2011 - $336 – Mr. Caskenette does not recall this purchase – the sales slip is unavailable because the retailer is out of business.

[130] These charges are suspicious. He was the CMHA go-to person. His involvement in the association was wide ranging. He was held in high esteem within the association. Although I do not necessarily believe Mr. Caskenette’s assertions of valid CMHA purpose behind each miscellaneous expenditure, it is sufficient if in the context of all the evidence it leaves a reasonable doubt. There is a reasonable possibility he is stating the truth, the Crown could not close the loop and that leaves reasonable doubt.

Reimbursement assertions

[131] He did not make cash deposits on his personal account. Cash deposits by Mr. Caskenette to reimburse for personal use purchases are not recorded in the accounting system. Neither book-keeper was cognizant of personal use purchases and were likewise unaware of reimbursement. Cash deposits without an account number would create an imbalance and that did not happen. There were no cash deposits to account 5300 over the pertinent period.

[132] As to the compensation credit, the best case for Mr. Caskenette is that he did not claim $2,650 in fees he was entitled to. As noted in paragraph 59 none of this is recorded.

[133] In conclusion, I am not left in reasonable doubt as regards use of the credit card for personal use, CMHA deprivation in excess of $5,000 or that Mr. Caskenette was knowingly dishonest in his dealings with CMHA property. Mr. Caskenette used the Visa card whether for credit purchases or cash advance for personal use. He did not evidence acknowledgement of such in the account allocation process save for the boater exam, MNR licenses and the $803.50 in 2013. Every other charge or advance on the card was charged to a CMHA account. He did not reimburse the CMHA by way of cash deposit. If he set off against compensation credit, it was notional off book and was not communicated to anyone in the association and that he did not defies prudent common sense.

[134] I’ve considered the defendant’s evidence and kept the burden of proof and principle of reasonable doubt firmly in mind. The Crown case is overwhelming in part. The defendant’s denials and assertions stacked against the Crown case do not leave a reasonable doubt.

[135] My conclusion is that Mr. Caskenette defrauded the CMHA of $12,831 ($9,080 + $3,751) between November 2011 and February 2014. He is found guilty of fraud in excess of $5,000.

The Honourable Mr. Justice Rick Leroy Released: December 7, 2017

COURT FILE NO.: CR-15-93 DATE: 2017/12/07 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E N: HER MAJESTY THE QUEEN – and – Brian Caskenette REASONS FOR JUDGMENT The Honourable Mr. Justice Rick Leroy Released: December 7, 2017