R. v. Saucier, 2017 ONSC 7099

CITATION: R. v. Saucier, 2017 ONSC 7099

COURT FILE NO.: 14-39

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gilles Saucier

Defendant

Michael Purcell, counsel for the Crown

Lawrence Greenspon and Ninetta Caparelli, counsel for the Defendant

HEARD: By written submissions received between September 15 and October 4, 2017

RULING ON APPLICATION FOR A DIRECTED VERDICT

Lacelle, J.

I. Introduction

[1] The accused brings an application for a directed verdict following the close of the Crown’s case. He challenges the sufficiency of the evidence on thirty of the thirty-seven counts charged in the Indictment before the court and argues they should be dismissed.

The positions of the parties

[2] The Crown is not proceeding on counts 4 and 5 of the Indictment relating to June Ross. The defence does not dispute the sufficiency of the evidence on counts 1, 2 and 3 (e.g. all counts relating to Diane Lacombe). It also does not dispute the sufficiency of the evidence on counts 15, 19, 32, and 35, all of which involve allegations of misappropriation of funds. The remaining counts are at issue.

[3] The defence argues that in a case where the Crown relies on circumstantial evidence a verdict of acquittal must be directed unless the trial judge is satisfied that the evidence is consistent with guilt and inconsistent with any other explanation. In essence, the defence argues that the rule in Hodge’s Case applies at the preliminary hearing. The defence argues that when the Crown’s evidence is analysed through this lens, there is insufficient evidence for the thirty counts it has identified to survive an application for a directed verdict.

[4] In some instances, the defence has highlighted further issues which it says should lead the court to conclude that the evidence is insufficient. For instance, in relation to the client Howard Ross, it is alleged that the accused’s dealings with the client’s funds was limited to a two day period. In respect of certain allegations of misappropriation, it is argued that there is insufficient evidence of the client’s directions about the use of the funds. In respect of the fraud allegations, the defence argues that there is insufficient evidence on issues such as proving the accused’s knowledge of the prohibited act and that it could have the consequence of deprivation, or even that there was a risk of deprivation. In respect of the forgery counts, the defence alleges there is a complete absence of evidence that the documents at issue were forged or used in a dishonest fashion.

[5] The Crown argues that there is an abundance of direct evidence and some circumstantial evidence in this case which in totality supports the inferences it seeks to prove each element of the offences charged. He argues there is no binding authority that supports the application of the rule in Hodge’s case on an application for a directed verdict and says the test is as set out in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.). Counsel highlights the jurisprudence which directs that on a motion for a directed verdict, the court must draw the inference the most favourable to the Crown.

II. The Law

The test for a directed verdict and other applicable legal principles

[6] Extensive submissions were made on the issue of the correct test on a directed verdict application for a case involving circumstantial evidence.

[7] In R. v. Bains, 2015 ONCA 677, a relatively recent case where the case for the Crown consisted entirely of circumstantial evidence, Watt. J.A., writing for the court, summarized the test as follows:

The standard a judge is to apply when asked to decide a directed verdict application at the conclusion of the case for the Crown is the same standard a justice applies in deciding whether to order committal at the conclusion of a preliminary inquiry under s. 548(1) of the Criminal Code. The issue to be determined is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States v. Shephard (1976), 1976 8 (SCC), [1977] 2 S.C.R. 1067 (S.C.C.), at p. 1080; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 (S.C.C.), at p. 160; and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.), at para. 21.

The standard on a directed verdict application does not differ according to whether the Crown’s case consists of direct or circumstantial evidence. But the nature of the judge’s task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.

The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt is established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33.

[8] In advancing its position as to the correct test on a directed verdict application in a case like this one, the defence identifies the root of its submission as the dissenting opinion of McLachlin J. (as she then was) in R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679.

[9] As indicated in R. v. Turner, 2012 ONCA 570 at para. 16, in Charemski, McLachlin J. “made it clear that the sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt” (Charemski at p. 701), a point which she also emphasized in her decision writing for the court in Arcuri. However, in my view, a full reading of her dissenting judgment in Charemski does not support the view that only cases where the circumstantial evidence is solely consistent with guilt may survive a directed verdict application. Rather, in expressing the view that there should be limited weighing of evidence on an application for a directed verdict, she suggests that the court should consider “whether the inferences necessary were capable of meeting the test in Hodge’s Case … The question of whether the test in Hodge’s Case was actually met was for the jury”: see Charemski at para. 27 [emphasis in the original].

[10] In any case, the majority of the Supreme Court in Charemski was clear at para. 4 that it is settled law that “[t]he question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s case … is for the jury to determine. In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury” [emphasis in the original].

[11] In further support of the argument advanced by the defence, counsel rely on the following cases: Arcuri, R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, R. v. Barrett, [2004] N.S.J. No. 86 (C.A.), R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069 (C.A.), upheld at 2014 SCC 73, [2014] 3 S.C.R. 612, R. v. Besner, [2004] O.J. No. 5552 (O.C.J.), R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), R. v. Turner, 2012 ONCA 570, R. v. Osawe, [2014] O.J. No. 5956 (S.C.J.). Many of these cases involve the application of the test for an unreasonable verdict. With respect to the test on a directed verdict application, the defence has cited no binding authority in Ontario that endorses the approach it suggests in this case.

[12] As I have said, Bains is an example of an entirely circumstantial case that expressly considers the correct test for a directed verdict. It adopts the approach set out in Arcuri without incorporation of the rule in Hodge’s Case. Having considered the defence submissions and the jurisprudence on the issue, I see no reason to depart from the articulation of the test set and the approach to circumstantial evidence set out in the binding authority of Bains and Arcuri. This conclusion was also reached by Fairburn J. (as she then was) in R. v. Kanagasivam, 2016 ONSC 2545, [2016] O.J. No. 1933 (S.C.J.) at paras. 6-11 following a similar argument from the defence about the test on a directed verdict application.

[13] Because the Crown relies on some circumstantial evidence in this case, I also consider the following principles that have developed in the jurisprudence, helpfully reviewed and summarized by Ducharme J. in Munoz:

a. The limited weighing undertaken on an application for a directed verdict means that inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable: Munoz at para. 21, citing R. v. G.W., 1996 427 (ON CA), [1996] O.J. No. 3075 (C.A.) at para. 62 and R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444. Reasonable inferences are “not necessarily likely or probable inferences”: R. v. Dwyer, 2013 ONCA 368 at para. 4.

b. Competing inferences are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where she weighs competing inferences or chooses among them: Munoz at para. 21, citing R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) at 165, and R. v. Mountour, [2002] O.J. No. 141 (Ont. C.A.) at paras. 3-5.

c. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination: Munoz at para. 21.

d. “Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”: R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.), cited in Munoz at para. 21. See also Dwyer at para. 4.

e. Inferences may not be drawn based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence, the accused must be discharged as there would be an absence of evidence on an essential element: Munoz at para. 22.

f. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation: Munoz at para. 26.

g. An inference can also become impermissible speculation where the proposed inference cannot be reasonably and logically drawn from the established primary facts: Munoz at para. 28, citing Arcuri at paras. 31-2.

h. Where an inferential gap exists, it can only be properly overcome by evidence: Munoz at para. 29, citing R. v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.).

The offences charged and their essential elements

[14] The accused is charged with various offences. To determine whether the Crown has adduced sufficient evidence on each element of the offences charged to meet the test in Arcuri, it is necessary to identify the constituent elements of each of those offences, as well as other legal principles that apply in considering those elements.

[15] Accordingly, the offences and their elements are as set out below. For the most part, I adopt the framing of the elements for each offence as set out in Watt’s Manual of Criminal Jury Instructions (Second Edition) (Toronto: Carswell, 2015).

Fraud

[16] Section 380 (1) of the Criminal Code prohibits the offence of fraud over $5000 as follows:

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

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

[17] To prove the offence, the Crown must prove the following essential elements beyond a reasonable doubt (see Watt’s Manual of Criminal Jury Instructions at pp. 1000-1003):

i. That the accused deprived each named complainant of something of value;

ii. That the accused’s deceit, falsehood or other fraudulent means caused the deprivation;

iii. That the accused intended to defraud the named complainant; and

iv. That the value of the property exceeded $5000.

[18] R. v. Zlatic, 1993 135 (SCC), [1993] S.C.J. No. 43 (S.C.C.) and its companion case R. v. Theroux, (1993), 1993 134 (SCC), 19 C.R. (4th) 194 (S.C.C.) confirm that the actus reus of fraud will be established by proof of:

1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and

2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk (see Zlatic at para. 13, Theroux at para. 16).

[19] The mens rea is established by proof of:

1. Subjective knowledge of the prohibited act; and

2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (e.g. subjective appreciation that the consequences of this conduct could be deprivation, in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk). The accused need not actually intend the prohibited consequence (see Zlatic at paras. 13-14 and 27).

[20] “Deprivation” does not require evidence that the complainant suffered an actual economic loss. The complainant’s economic or financial interests must be proved to have been at risk, however: Zlatic at para. 25, Theroux at para. 17.

[21] The term “other fraudulent means” includes means that are properly regarded as dishonest according to the standards of reasonable people. Those situations have included the use of corporate funds for personal purposes, non-disclosure of important facts, exploiting the weakness of another, unauthorized diversion of funds, and unauthorized arrogations of funds or property. Negligence will not suffice, or taking advantage of an opportunity to another’s detriment. It does include conduct which “reasonable decent persons would consider dishonest and unscrupulous”: see Zlatic at paras. 18-20; see also Theroux at paras. 17 and 39. In R. v. Currie (1984), 5 O.A.C. 280, the court held that the use of funds by the accused (who “were in a business of investing funds in a certain company”) in a manner which was not authorized was sufficient to ground a finding that the accused acted dishonestly.

[22] This expansive interpretation of the offence, “establishes fraud as an offence of general scope capable of encompassing a wide range of dishonest commercial dealings”: Theroux at para. 17.

[23] Insofar as the mens rea is concerned, the question to ask is “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)”: Theroux at para. 24. The Crown need not prove precisely what thought was in the accused’s mind at the time of the criminal act. Subjective awareness of the consequences may be inferred from the act itself, or from the facts as the accused believed them to be. The accused may introduce evidence negating that inference. The fact that such an inference is made does not detract from the subjectivity of the test: see Theroux at paras. 23 and 29. Recklessness as to the consequences will also attract criminal responsibility: Theroux at paras. 26 and 28. The scope of the mens rea requirement ensures that negligent or careless misrepresentation, “improvident business conduct”, and sharp business practice are excluded: see Theroux at para. 40.

Theft

[24] The offence of theft is set out in section 322 (1) of the Criminal Code:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the to the use of another person, anything whether animate or inanimate, with intent,

(a) To deprive, temporarily or absolutely, the owner of it, or a person who has a special property interest in it, of the thing or of his property or interest in it;

(b) To pledge it or deposit it as security;

(c) To part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) To deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

[25] To prove this offence, the Crown must prove the following elements beyond a reasonable doubt (see Watt’s Manual of Criminal Jury Instructions at pp. 917-920):

i. That the accused converted the property of each named complainant to his own use;

ii. That the accused converted the property fraudulently and without colour of right;

iii. That when the accused converted the property he meant to deprive the complainant, at least temporarily, of the property or the complainant’s interest in it, and

iv. That what the accused converted was worth more than $5000.

[26] The meaning of “convert” is also explained in Watt’s Manual of Criminal Jury Instructions Second Edition, in this way, at p. 918:

To convert something means to (wrongfully) deal with it in a way that is inconsistent with the rights of the true owner of that thing. Even if one person is lawfully in possession of another person’s property, to do something with that property contrary to the terms on which the person got (had) it in the first place would be to convert that person’s property to the use of the person who converted it (or, to the use of somebody else). For example, A borrows a car with the owner B’s permission. A then sells the car to C. As has converted B’s care to the use of C.

[27] In R. v. Milne, 1992 86 (SCC), [1992] 1 S.C.R. 697, the court held at para. 29 that

[w]here a transferor mistakenly transfers property to a recipient, and the recipient knows of the mistake, property does not pass for the purpose of the criminal law if the property creates a right of recovery no matter whether the original transfer is said to be void or voidable. The distinction between void and voidable transfers has no purpose in the context of the criminal law. In either case, where the law of property provides at least a right of recovery, property does not pass for the purpose of the criminal law. If the recipient then converts the property to his own use, fraudulently and without colour of right, and with intent to deprive the transferor of the property, he is guilty of theft.

Misappropriation

[28] The misappropriation of money held under direction is a specific form of theft that is prohibited by s. 332 of the Criminal Code. It provides:

(1) Every one commits theft who, having received, either solely or joint with another person, money or valuable security or a power of attorney for the sale of real or personal property, with a direction that the money or a part of it, or the proceeds or a part of the proceeds of the security or the property shall be applied to a purpose or paid to a person specified in the direction, fraudulently and contrary to the direction applies to any other purpose or pays to any other person the money or proceeds or any part of it.

(2) This section does not apply where a person who receives anything mentioned in subsection (1) and the person from whom he receives it deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, unless the direction is in writing.

[29] The elements of the actus reus that the Crown must prove beyond a reasonable doubt are as follows (see R. v. Skalbania, 1996 2595 (BC CA), [1996] B.C.J. No. 1906 (C.A.), aff’d 1997 337 (SCC), [1997] 3 S.C.R. 995, at para. 11):

i. That the accused received money from another person;

ii. That the accused received a direction that the money or part of it shall be applied to a purpose specified in the direction

iii. That the accused applied it to any other purpose, contrary to the direction

[30] The mens rea will be made out where the Crown shows “an intentional misappropriation, without mistake”. This is all that is meant by the use of the word “fraudulently” in section 332. An intent to steal is not required: Skalbania, 1997 337 (SCC), [1997] 3 S.C.R. 995 at paras. 4 and 6.

[31] The jurisprudence supports the position that a direction may be implicit. In R. v. Legare, 1977 156 (SCC), [1978] 1 S.C.R. 275 (S.C.C.), the court held at para. 23 that it was open to the trial judge to find that the “receipt of funds [by the accused] in the circumstances in which it took place implied, by the very terms of the confirmation, a direction to apply the sum to a particular purpose”. A similar view was also articulated in R. v. Lowden, 1982 194 (SCC), [1982] 2 S.C.R. 60 at para. 27, where the court held

[e]xpectations, standing alone, are not directions, but when known by the recipient of the money (or thing), they may, given the proper setting, be “tantamount to a direction”. Expectations known to the recipient of the money as a result of “express instructions” … are directions. It is not, in my view, necessary that the recipient be further told expressly what not to do with the money for the direction to exist or, again, what to do with the money if the expectations cannot be met; this may … be implicit as a result of the nature of the relationship.

[32] Finally, the jurisprudence suggests that the offence may be proved when the funds are not applied as directed in a timely fashion: see Legare at paras. 12-13, and R. v. Bodnarchuk, 2007 BCCA 417 at para. 33. In the latter case, the court held that the actus reus of the offence “was the appellant’s use of the monies and failure to timeously have issued that for which the monies had been furnished.” The accused’s intent to keep the investors out of their property as long as possible to serve his own economic ends was found to constitute the mens rea of the offence. The court found “an intentional and unmistaken misappropriation of the funds provided by the investors”, which went beyond a “mere civil wrong” and amounted to a crime under s. 332 of the Criminal Code: see para. 33.

Forgery offences

[33] The indictment includes charges under ss. 368(1) and 366(1) of the Criminal Code.

Uttering a forged document

[34] Section 368(1) prohibits the use of a forged document. It provides:

Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;

[35] The elements of this offence which the Crown must prove beyond a reasonable doubt are (see Watt’s Manual of Criminal Jury Instructions at pp. 995-997):

i. That the document specified was forged;

ii. That the accused knew or believed that the document was forged;

iii. That the accused dealt with the document;

iv. That the accused represented the document as genuine.

Forgery

[36] Section 366(1) addresses the making of a false document and the offence of forgery. It states:

366 (1) Every one commits forgery who makes a false document, knowing it to be false, with intent

(a) That it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or

(b) That a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

(2) Making a false document includes

(a) altering a genuine document in any material part;

(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or

(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.

[37] In turn, section 321 defines the term “false document”:

“false document” means a document

(a) The whole or a material part of which purports to be made by or on behalf of a person

i. Who did not make it or authorize it to be made, or

ii. Who did not in fact exist,

(b) That is made by or on behalf of the person who purports to make it but is false in some material particular,

(c) That is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority ti is made.

[38] The elements the Crown must prove beyond a reasonable doubt for this offence are (see Watt’s Manual of Criminal Jury Instructions at pp. 988-991):

i. That the accused made a false document;

ii. That the accused knew the document was false when he made it;

iii. That the accused intended that the document be considered genuine; and

iv. That the accused intended that someone would be prejudiced by treating the document as genuine.

[39] Proof of prejudice does not require proof of actual loss. Prejudice means deceived or cheated: Watt at p. 991. The accused need not intend to cause prejudice, but need only have an intent to deceive: R. v. Sebo, [1988] A.J. No. 475 (C.A.) at para. 32.

[40] A false document is any document that is false in some material particular: R. v. Gaysek, 1971 11 (SCC), [1971] S.C.R. 888.

III. Overview of the evidence and the Crown’s theory of the case

[41] The following is an overview of the evidence relevant to this application. The findings that the Crown says are available on the evidence to prove the elements of the offences in relation to each of the accused’s clients is outlined following the summary of each client’s evidence.

The admissions by the accused

[42] The accused has made various admissions. He admits that:

a. He was the president of Gilden Financial Solutions Corporation and had sole signing authority over cheques issued by Gilden Financial Solutions Corporation;

b. He held a contract with London Life as a sales representative initially in May 1996, following which he contracted himself as Gilden Financial Solutions Service Corporation in December 2003 and continued to sell London Life and Great West Life products and other investments;

c. He was the holder of certain bank accounts at TD bank and Unity Savings;

d. He signed the Code of Business Conduct and Ethics for Corporations Statement of Compliance between December 1997 and December 2010.

[43] The bank accounts referenced above are the source of various funds remitted to clients as described in the summary of the evidence which follows.

The evidence of Gary Schmidt

[44] Gary Schmidt is employed as the manager of the special investigations unit of Great West Life. He has been an investigator for a number of years, including as a police officer.

[45] Mr. Schmidt testified that Great West Life owns London Life, and that Quadrus is their mutual fund branch.

[46] A number of documents were tendered during the evidence of Mr. Schmidt. They include the contractual agreement between London Life and the accused, who was a contracted financial advisor with that company. That contract includes various directions regarding the receipt of payment for London Life products. Under the heading “Money in Trust”, it provides that “[a]ll money received for London Life and its Intercorporate Partners … will be paid to London Life for distribution to the appropriate company, without any deductions or delay”.

[47] Documentary evidence was also filed showing the accused’s “Statement of Compliance” for London Life, and the “Statement of Acknowledgment for Quadrus”. The accused acknowledged in signing the first document that he was familiar with London Life’s Code of business conduct and ethics for corporations and agreed to comply with its provisions. He signed the documents in both 2009 and 2010.

[48] The Code of Business Conduct and Ethics For incorporated representatives addresses the handling of client funds. It states: “You are not authorized to collect premium payments from clients, other than the initial premium. Premium cheques are to be made payable to London Life or the issuing company, and under no circumstances should they be made payable to you, your corporation, if applicable, or any other person.”

[49] In late July of 2011, Mr. Schmidt was alerted by a regional manager for London Life to a complaint in relation to the accused by Claude Laroche. On August 2, 2011, he spoke with Mr. Laroche to clarify his concerns. He subsequently contacted the accused on August 16, 2011. At that time, he told the accused he wanted to talk to him about his client files, and about Mr. Laroche’s file in particular. He testified that he did not expand on any details of the complaint at that time.

[50] On August 25, 2011, Mr. Schmidt spoke with Helene Crawford. She had been referred to him by the London Life ombudsman. He later met with her to take a statement from her. At that time, Ms. Crawford provided him with a “transaction ledger”. Mr. Schmidt said this was not a document produced by London Life, Great West Life or Quadrus. He had some communication with the accused about Ms. Crawford by email on August 25, 2011. He did not recall if had had any communication about her with the accused before that email.

[51] With these two investigations under way, Mr. Schmidt reached out to the accused’s clients by sending “audit verification letters”. This was in early September. He was unsure how many letters he sent. He said a letter like this had not been sent to a number of the complainants in this case. According to Mr. Schmidt, London Life also sent letters. He did not have a list of the persons to whom London Life had sent a letter.

[52] Mr. Schmidt further detailed the dates on which he became involved with the complainants in this case. He said that on November 15, 2011, he received a complaint from Jacques and Marlene Roy. On November 19, 2011 he received an email from Micheline Larocque. Next he was contacted by Lucille Lauzon. On November 28, 2011, he was contacted by Sharon Bruyere. On December 7, 2011, he was contacted by Denise Nutting. On December 14, 2011, the Lacombes contacted him. At some point in the latter part of 2011, he was contacted by June and Howard Ross. In May of 2012, he was contacted by Paul and Lise Proulx.

Client: Helene Crawford (counts 33 (s. 380(1)(a), 34 (s. 322(1)) and 35 (s. 332(1))

[53] The Crown alleges that the accused defrauded Helene Crawford of a sum exceeding five thousand dollars, that he committed theft by converting $17, 541.00 of Ms. Crawford’s and making it his own, and that he misappropriated her funds. The defence takes no issue with the sufficiency of the evidence on count 35 (misappropriation). Only the evidence on counts 33 and 34 alleging fraud and theft is said to be deficient.

The evidence of Helene Crawford

[54] Ms. Crawford was 67 years old at the time of her testimony. When she met the accused she was a retired mental health worker who supported herself with a small insurance policy payout received upon her husband’s death.

[55] Ms. Crawford’s sister referred her to the accused. Ms. Crawford understood that the accused was a representative of London Life. With his assistance, she applied for a London Life insurance policy. She understood based on her discussions with the accused that the money she deposited into this policy would permit her to withdraw a monthly interest amount which would assist her with her living expenses. She understood there would be tax advantages to investing her money in this fashion.

[56] Some of the funds to be directed to the life insurance policy were to come from an RRSP Ms. Crawford held at another financial institution (Sunlife). She authorized the transfer of those funds believing they would be applied to her London Life insurance policy because this is what the accused told her would occur. An additional sum of $19 351.16 came from other accounts at Scotiabank.

[57] At some point after that transfer, in July, Ms. Crawford asked the accused for $1900 because she needed the cash. It was Ms. Crawford’s understanding that all the money directed to her London Life policy remained accessible to her. The accused sent her those funds as requested.

[58] Ms. Crawford testified that at some point she started questioning the accused because she had not received any documentation from him about where her money had gone. She said he had told her she would be able to start drawing $300 per month to supplement her income right away, and she also wanted to know where that money was. In response to her query, she was advised that the funds from the RRSP had been directed to a RIF, and not the life insurance policy at London Life. Ms. Crawford was upset about this, and it remained unclear to her where the roughly $19000 from Scotiabank had been deposited. She expressed her feelings to the accused. She told him that she would be going to London Life to take all her money out. This conversation took place sometime the end of August.

[59] After that, the accused sent a cheque to Ms. Crawford for $17451. 85. The cheque was dated July 20, 2011 and was to be drawn on the accused’s account at TD Canada Trust. Ms. Crawford testified she received it in the mail on August 29, 2011. The amount of the cheque corresponded to the $19 351 transferred for the purpose of deposit into the policy with London Life less the sum of $1900, plus an additional amount of $6.69. A letter from the accused accompanying the cheque (and also dated July 20, 2011) explained that the sum of $6.69 represented daily interest at 2% as of July 13, 2011. Ms. Crawford testified that there had been no agreement between her and the accused in respect of any interest. She said the agreement was that her money would all go to London Life to her life insurance policy.

Additional evidence

[60] Gary Schmidt testified that no funds for Ms. Crawford’s policy were received by London Life between June 21, 2011 and August 29, 2011.

[61] The Crown filed various documents, including a “transaction ledger” provided by the accused to Ms. Crawford showing $19 351 was credited to an account number matching the number for Ms. Crawford’s policy at London Life. This transaction is dated July 12, 2011. Ms. Crawford said the accused may have emailed this document to her, but she could not be positive about that.

The Crown’s theory

[62] The Crown alleges that the accused committed the offences at issue by:

• Withholding $17541 of Helene Crawford’s funds for a 69-day period between June 21, 2011 – August 29, 2011;
• Immediately depositing these funds into his accounts;
• Failing to advise Helene Crawford that he was withholding these funds in his account;
• Failing to apply these funds to London Life Insurance policy #B668220-1 during that period, as directed by her;
• Deceitfully uttering fabricated documentation to give her the impression that these funds were applied as directed;
• Depositing her funds into a Unity Savings and Credit Union account operated by him;
• When questioned by her, returning the funds from his TD Canada Trust account, with interest from an unidentifiable source or investment; and
• Backdating correspondence.

Claude Laroche (counts 30 (fraud), 31 (theft by fraud), and 32 (misappropriation))

[63] In the counts involving Mr. Claude Laroche, the fraud and theft by fraud counts are those in issue. These counts alleged the accused defrauded Mr. Laroche of an amount exceeding $5000. He is also alleged to have committed theft by fraud by converting the sum of $55, 187.43 and making it his own.

The evidence of Claude Laroche

[64] Mr. Laroche was a retired 65 year old at the time of his testimony. He had worked for over twenty years at the local newspaper ultimately becoming its editor. Following that, he operated a small business.

[65] The accused and Mr. Laroche met sometime in the early 2000s. At the time, Mr. Laroche owned his small business with his wife. Together they purchased a life insurance policy with the assistance of the accused. Mr. Laroche understood there was a policy for him and another for his wife, and that they were held by Great West Life (the documentary evidence confirms the policy was in fact a joint policy). Mr. Laroche understood that Great West Life and London Life were owned by the same corporate entity and that the accused had access to policies from both.

[66] At some point after purchasing life insurance, the accused also assisted with making other investments.

[67] In late 2009 Mr. Laroche and his wife were in the process of obtaining a divorce. Mr. Laroche determined he no longer required the same life insurance protection. He asked the accused to assist him in obtaining a policy with a lesser value. The accused told him that he would look into it. He later told Mr. Laroche that London Life would not agree to reduce the policy coverage, and that he would have to cancel it completely. Accordingly the policy was cancelled and Mr. Laroche obtained a new one. His objective in reducing his coverage was mainly to reduce his premiums and get a policy that better reflected his needs at that time. While he understood that cash value would accumulate in the policy over time he said this was not important to him.

[68] Mr. Laroche understood that he would receive some cash value from the old policy, which he intended to use to fund the new policy. He discussed this plan with the accused. They discussed no other plans for this money. He received redemption cheques from Great West Life in May of 2010.

[69] On June 6, 2010, Mr. Laroche re-directed those funds to the new policy. He did so by writing a cheque for $30, 187.43 to the accused’s corporation, Gilden Financial. He had asked the accused whether the cheque should be written to Great West Life or Gilden. He said he was wondering, “if the cheque is to go to Great West Life, how do we get it there”. The accused told him to write it to Gilden Financial. Mr. Laroche did so, for the purpose of having it added to his new life insurance policy.

[70] Later in 2010, Mr. Laroche approached the accused for assistance with the investment of another $25, 000. At the time, he already had a sum of money invested in an account with Quadras, which he understood was an investment vehicle with London Life. Mr. Laroche asked the accused whether he might obtain another quarter percent increase to the interest payment from that account if he brought the total of the funds contributed up to $50 000. The accused told him it probably could. Mr. Laroche then provided a cheque dated December 16, 2000 in the amount of $25, 000 to the accused. He did not authorize the accused to do anything else with the $25, 000. He wrote the cheque out to Gilden Financial because he was instructed to do so.

[71] Sometime later, Mr. Laroche mentioned to the accused that he was not seeing evidence of this investment or paperwork. The accused told him he decided to invest it with his life insurance company because he thought he could get a better rate of return than with Quadrus. Mr. Laroche testified he was disappointed with that answer because it would only have taken an email or phone call to get his permission to go with the option that would generate the better return. Instead, he found out after the fact.

[72] At another point, Mr. Laroche had received paperwork from Gilden that “didn’t jive” with other documentation he had received about the insurance policy from the insurance company. He made a phone call to the accused who told him there must have been a secretarial error and they would “fix it up”. He could not recall if this was before or after he made the additional $25, 000 investment with the accused’s assistance.

[73] In June of 2011, Mr. Laroche met with a financial advisor at RBC who had offered to prepare a retirement plan for him. Following that meeting, he became concerned about his life insurance policy. He contacted the accused to make him aware of the concerns. He recalled addressing those concerns in person with the accused, which caused even more confusion. In early July 2011, Mr. Laroche received a statement of account from the accused. It did not address his concerns, so he sent an email to the accused outlining his questions about why the $30, 187 and $25, 000 were not reflected in the policy values showing on his statement from London Life. The accused replied by email on July 19, 2011. He told Mr. Laroche that there was a “notional account held at London Life that is not available on their statements”. He went on to say that there were tax implications for the funds that had been considered in their management. He explained: “…these policies are tax-exempt and based on the tax rules they cannot show cash that exceeds their ACB or adjusted cost base”. Mr. Laroche had no recollection of having discussed a “notional account” with the accused, or the implications of an adjusted cost base. He had never given the accused instructions to do the things described in the email. He replied to the accused the next day by asking to get a copy of “that account statement”, and other documentation showing how his funds had grown. By this point the accused was scheduled to leave on a two week holiday and he said he would address Mr. Laroche’s concerns when he came back.

[74] In the meantime, Mr. Laroche had further discussions with his accountant about the situation. He then contacted a regional manager for London Life and was ultimately in touch with Mr. Schmidt, the London Life investigator. On Mr. Schmidt’s advice, Mr. Laroche had no further dealings with the accused. He was contacted a few times by the accused’s office, including on August 8, 2011. He followed the direction of Mr. Schmidt and “just deflected” the suggestion that he meet with the accused.

[75] In cross-examination, Mr. Laroche agreed that he had a level of trust in the accused and he trusted him to invest with the best return possible in mind. He did not have the level of comfort with him that he used his services for all his investments.

Additional evidence

[76] In addition to several documents including cheques, statements, and emails, there was additional evidence on the counts at issue from Gary Schmidt. He testified that he contacted the accused on August 16, 2011 to discuss Mr. Laroche’s concerns. He also testified that London Life does not have “notional accounts” and that lump sum payments could be paid into whole life insurance policies.

[77] Sometime after Mr. Schdmidt’s contact with the accused, the accused remitted bank drafts in the amount of $30, 187.43 and $25, 000 to London Life. The drafts are dated August 22, 2011. Mr. Schdmidt testified that Quadrus had not previously received a payment in the amount of $25, 000.

The Crown’s theory

[78] The Crown alleges that the accused committed the offences at issue by:

• Withholding $30,187.43 of Claude Laroche’s funds between May 6, 2010 and August 22, 2011;
• Withholding $25,000.00 of Claude Laroche’s funds between Dec 16, 2010 and August 22, 2011;
• Immediately depositing these funds into his account;
• Failing to advise Claude Laroche that he was withholding these funds in his account;
• Failing to apply $30,187.43 of Claude Laroche’s funds toward his London Life insurance policy #B651550-3, as directed by him;
• Failing to apply $25,000.00 of Claude Laroche’s funds toward his Quadrus investment account #503476014, as directed by him;
• Deceitfully advising Claude Laroche that there is a “notional account held at London Life”; and
• Sending the funds to London Life once he was advised of Claude Laroche’s concerns by Garry Schmidt (missing $0.47).

Sharon Breyer (counts 24 (fraud) and 25 (misappropriation)) and related count 26 (using a forged document))

[79] The Crown alleges the accused defrauded Ms. Sharon Breyer and misappropriated her funds. The defence argues there is insufficient evidence on the fraud and misappropriation counts.

The evidence of Sharon Breyer

[80] Ms. Breyer was 71 years old when she testified. She was retired from her previous employment in operating a delicatessen. She had been divorced for some time.

[81] Ms. Breyer said she came to know the accused because he became her representative for her life insurance policy. He replaced another individual with whom she and her former husband had obtained London Life products in the past. It was her understanding that the accused took over representing London Life on those products.

[82] Ms. Breyer’s recollection was that in 2009, she had investments or policies with London Life. The funds she received in her divorce went into London Life products. She believed they were directed to a guaranteed investment, but could not recall the type of investment it was. She explained that her husband bought the policies and she did not understand “most of the stuff”.

[83] On October 2, 2009, Ms. Breyer made an investment with the assistance of the accused for $5000. At the time she understood that he was her representative on her life insurance policies with London Life, and that he also worked “for himself”. In providing him with the $5000, Ms. Breyer understood that the accused would invest it wherever he could get her the most money. He told her that he would get her a 4% return on the investment. He did not tell her where she could get the most money, and she trusted him to invest it wherever he thought was best. He did not say specifically that he would invest it with London Life. She believed he would invest it with London Life because he worked for London Life and she was a client of London Life. She confirmed “GIC” was written in the memo line of the cheque.

[84] At some point, Ms. Breyer heard that the accused no longer worked for London Life. At that point, she asked him for her money back.

[85] Ms. Breyer confirmed that she signed and dated a “letter of direction” that she gave to the accused. The letter requests that her monies in the amount of $5000 “plus or minus market value adjustments” from “her non-registered; bearing account number 421121604/012509” be sent to her. The letter of direction is addressed to “Manuilfe Bank” at an address in Winnipeg. The letter shows the date written by Ms. Breyer as November 8, 2011. This document is the subject of count 26 alleging the use of a forged document.

[86] Ms. Breyer also confirmed that she signed a letter from the accused dated November 8, 2011 (and showing a signature date for Ms. Breyer of November 21, 2011). The letter sought a release from liability for the accused in regards to his dealings with Ms. Breyer. Ms. Breyer received this letter with a cheque from the Unity Savings and Credit Union Limited in the amount of $5305. She understood the $305 in excess of the $5000 she had previously provided to the accused was interest. She could not identify the source of that interest. When she received this money back, Ms. Breyer thought it had been invested with London Life. The letter is endorsed with a handwritten entry at the bottom stating “received $5305 from investment outside of London Life”.

Additional evidence

[87] Documents were filed confirming that Ms. Breyer signed an “Application for Guaranteed Interest/Marketwatch/Freedom Fund” with London Life on two occasions in 2006. The account numbers on those applications do not correspond to the account number listed in the “letter of direction” to “Manulife Bank”.

[88] The documents filed also contain an undated letter from the accused to Ms. Breyer. The reference line refers to “London Life Investment” and lists the policy numbers from the 2006 applications to London Life for the “Guaranteed Interest/Marketwatch/Freedom Fund”. The letter confirms her $5000 investment with the accused in a “details” section. It references no other financial institution or account numbers other than those contained in the reference line. It indicates in the details section an investment return “fluctuating 2 points above inflation, currently set at 4%”.

[89] The London Life investigator, Mr. Schmidt, testified and confirmed the nature of the investments Ms. Breyer had with London Life. He said that none of Ms. Breyer’s holdings with London Life received deposits in the amount of $5000. He also testified that the account number in the “letter of direction” did not correspond with any account number at London Life.

The Crown’s theory

[90] The Crown alleges that the accused committed the offences at issue by:

• Failing to invest $5000 of her funds with London Life, contrary to her direction;
• Withholding those funds from her;
• Deceitfully uttering documentation to Sharon Breyer to give her the impression that $5000 of her funds were invested with London Life;
• Providing the false impression that her funds were invested with Manulife; and
• Returning her funds with interest from an unidentifiable source.

Denise Nutting and Ronald Nutting (counts 27 (fraud), 28 (theft by fraud), and 29 (misappropriation))

[91] The Crown alleges that the accused defrauded Denise and Ronald Nutting, that he converted $40, 000 belonging to them and made it his own, and that he misappropriated those funds. The sufficiency of the evidence on all three counts is in issue.

The evidence of Denise Nutting

[92] Ms. Nutting was 68 years old when she testified. She and Mr. Nutting were divorced at the time. She retired in her late fifties following a heart attack. She had previously worked at a bridal store. Her husband had run his own business.

[93] Ms. Nutting testified that she had known the accused for some time. He replaced the person who used to come and see them from the insurance company, London Life. At the time they met the accused, she had three existing policies with London Life. During their relationship with the accused, she and her husband also invested with him through Gilden Financial.

[94] Ms. Nutting recalled giving the accused $20, 000 to “invest in a package of some kind”. Her impression was “it was kind of like an insurance, kind of frozen for a little while”. Ms. Nutting confirmed she had signed a cheque made out to London Life Insurance for $20, 000 in March of 2010. She understood that the accused would be “taking care of that for us”, meaning “investing it in London Life”. She understood that at some point in time, she would receive four or six percent interest. At the time, there was a lot of trouble at home in her marriage, and Ms. Nutting was reluctant to invest that money. She said it was her husband’s decision to provide the accused with these funds.

[95] Ms. Nutting thought she had provided the accused with another $20, 000 in the same year for a total of $40, 000. She was shown a cheque written to Gilden Financial in the amount of $40, 000 and dated April 15, 2010. She knew she had signed the cheque because it was her writing.

[96] Ms. Nutting said that she did have contact with a woman at London Life about her dealings with the accused, though her husband spoke with this woman more than she did.

[97] In January of 2012, the Nuttings received a letter from the accused and a cheque for $28, 282.00. The letter confirms that an additional payment of $15, 000 was made to London Life on their behalf and attached a letter for their signature. That letter requested the cancellation of policy B651617-9 and the surrender of the cash value in the policy. The letter also refers to a “return of deposit” as a result of the decision by the Nuttings to end their “planning process” with the accused’s firm. The letter indicates an initial deposit amount of $25, 000, and an interest payment of $3, 282.00. Ms. Nutting agreed that subtracting the payment of $15, 000 to London Life from the total funds she and her husband had provided to the accused left a sum of $25, 000. She did not know where the interest had come from. Ms. Nutting confirmed her signature was on both letters and that she understood she was instructing London Life to cancel that particular policy. She confirmed the Nuttings did receive the cash value from that policy from London Life.

[98] Ms. Nutting agreed in cross-examination that the accused had given them even more money over and above that cheque. On May 3, 2012, there was another letter and accompanying cheque from the accused. This letter indicated the “funds are considered a return of deposit which is the result of your intent to cancel your planning process with our firm. This was a partial payment received as part of your estate planning process and are now being returned”. The letter indicated two payments of $8, 000 would be made. A cheque for $8, 000 was attached. Another letter of July 17, 2012 attached a second cheque, this one for $8, 100. The letter explained “[w]e have included an additional $100 as interest due to the delay”. She was asked whether she had any information to suggest anything other than these funds had come out of the accused’s pocket. She said she did not. She said that she and her former husband did not lose any money. She did not know where the interest of $100 came from and could recall no agreement that the accused would pay that interest.

Additional evidence

[99] The application for insurance policy #2558167-9 was filed as an exhibit. It shows the Nuttings’ signatures and is dated February 3, 2010. Gary Schmidt testified that it had an annual premium payment of $20, 000. The cheque written by Ms. Nutting in March of 2010 was received and cashed by London Life as a premium to activate that policy.

[100] Mr. Schmidt further testified that London Life did not receive the amount of $40, 000 after the issuance of the cheque in the same amount on the Nuttings’ account dated April 15, 2010.

[101] London Life did receive cheques from the accused totalling $15, 000 that were applied to London Life policy #B651617-9. Those cheques were as follows: $1000 (February 24, 2011), $4000 (March 25, 2011), $5000 (April 6, 2011) and $5000 (May 18, 2011). Mr. Schmidt also testified that overage charges started to accrue for this policy on March 30, 2011, because the premium was past-due.

The Crown’s theory

[102] The Crown alleges that the accused committed the offences at issue by:

• Withholding portions of Ms. Nutting’s funds ($40,000);
• Failing to apply the funds as directed by Ms. Nutting;
• Deceitfully advising Ms. Nutting that one payment of $15000.00 was made to London Life policy #B651617-9, when payments were made sporadically over a period of 83 days;
• Depositing these funds into TD Bank and Unity Savings and Credit Union accounts operated by him;
• Providing a Letter of Direction stating that “all or part of these funds were deposited with other financial institutions”; and
• Returning these funds to Ms. Nutting with interest from an unidentifiable source or investment.

Howard Ross (counts 6 (fraud), 7 (misappropriation) and related count 8 (using a forged document))

[103] The accused is alleged to have defrauded Howard Ross and to have misappropriated his funds. A further related count alleges the accused used a forged document on the same date, in particular, a client portfolio from Hammond Financial.

The evidence of Howard Ross

[104] Howard Ross was 83 years old when he testified. He had retired from employment with Pfizer in 1994. He was married to June Ross.

[105] Mr. and Ms. Ross both had investments with the accused. Mr. Ross testified that the couple had money invested with a company before meeting the accused, and then decided to change. Somehow he “got to talking” to the accused.

[106] Mr. Ross testified about an occasion when he discussed investing in a “tax savings account” with the accused. It was Mr. Ross’s idea. He wanted a safe investment sheltered from tax obligations. On November 16, 2011 he provided the accused with a cheque for $15, 000 and instructed that it go into a tax savings account. He understood the account would be at Manulife and that he would get between two and three percent tax-free. He thought the discussion about where the account would be held was part of his conversation with the accused.

[107] Mr. Ross said that at the time, he was not sure if the money was invested in a tax savings account with Manulife. The form the accused gave him was very faint. Mr. Ross left the cheque with the accused.

[108] Mr. Ross did not receive any confirmation that the money was invested, so he went back to see the accused. He thought two days passed after that before the accused called to tell him the copy was in. He went in to pick it up. The form was very “fadey”. He recalled it had “Manulife” written at the top of the page. He went home, thought about it, and went back to see the accused. He asked for the return of his money. The accused complied.

[109] Mr. Ross reviewed several documents during his evidence. One document was a “client portfolio” showing Mr. Ross’s plan breakdown between October 1 and December 31, 2011. The document indicated an investment of $15, 000 with a start date of November 16, 2011. The investment was noted to have a fixed term of 4%. The name “Hammond Financial Incorporated” appears at the bottom of the page detailing the investment. Mr. Ross was asked if the investment listed corresponded with any investments he had with the accused. He noted the rate of interest was 4%, when the accused had said it would be 2-3%.

[110] Mr. Ross also testified about a letter from the accused dated February 16, 2012. The letter confirmed that Mr. Ross had received $15, 150 from Gilden Financial. It stated: “[t]hese funds are considered a return of deposit which was not credited to the appropriate accounts. They were received as part of an investment that could not be placed as requested and must be returned to you. Due to this error, we are crediting additional interest charges that may have been applicable to your carrier at a rate of Four percent (4%) from the deposit date to the present”. The letter confirmed an original deposit amount of $15, 000, and interest of $150, for a total payment of $15, 150.00. Mr. Ross testified that he did not understand what was being referred to as the error referenced in the letter. However he was not concerned because he got his money back and “washed [his] hands of it”.

[111] Mr. Ross testified that he did not recall hearing anything about Hammond Financial Incorporated in conversation with the accused.

Additional evidence

[112] In addition to the viva voce evidence of Mr. Ross, the Crown filed the documents referenced above.

Crown’s theory

[113] The Crown alleges that the accused committed the offences at issue by:

• Accepting $15000 of Howard Ross’ funds and failing to apply them to a tax-free savings account, as he directed;
• Failing to advise Howard Ross that he withheld these funds from him;
• Deceitfully tendering a Client Portfolio to Howard Ross to give the impression that his funds were invested; and
• Returning Howard Ross’ funds to him with interest from an unidentifiable source with an admission that they were not credited to the appropriate accounts.

Micheline and Marcel Larocque (counts 17 (fraud), 18 (theft by fraud), and 19 (misappropriation))

[114] The Crown alleges the accused defrauded Micheline and Marcel Larocque that he converted $17, 000 of their funds and made them his own, and that he misappropriated their funds. The sufficiency of the evidence on the first two counts is at issue.

The evidence of Micheline Larocque

[115] Micheline Larocque was 66 years old at the time she testified. She was employed as a public works assistant for her town. Her husband Marcel had recently retired from work as a truck driver.

[116] Ms. Larocque testified that she and her husband had a number of saving and investment products. At the time they met the accused, they had RRSPs with Caisse Populaire and life insurance with London Life. They were introduced to the accused through another representative of London Life.

[117] After meeting the accused, they became his clients for a number of years and purchased a number of products with his assistance. They arranged to have their RRSPs transferred over to London Life. They also purchased “estate insurance”. The annual premium on the policy was $17, 000. It was due on September 1st of every year. Mr. Larocque understood that the life insurance premiums were to be funded using transfers from the RRSPs.

[118] In cross-examination, Ms. Larocque agreed that she had trusted the accused to take approximately $48, 000 and transfer it from her RRSP to a RIF. She entrusted the break-down of how the money came from her RRSP to the accused. She did not recall if it had been explained to her that transferring the RRSP money to a RIF would save her the expense of withdrawal fees. At the time she signed an application for a RIF with London Life on November 22, 2010, she did not understand that. She understood that the result of the application was that $8, 500 annually would be obtained. At the time, she also did not understand the nature of a RIF. She thought it was another kind of RRSP.

[119] In July of 2011, Ms. Larocque and her husband each received cheques from London Life in the amount of $8, 500. Ms. Larocque was confused about why they had been sent because in previous years London Life took $8, 500 from the couples RRSPs and paid the premium for the insurance. This was the first time they had received cheques for $8, 500.

[120] Because she didn’t know exactly why the couple had received the cheques, Ms. Larocque contacted the accused and asked. He told them to deposit the cheques and to make out a cheque for $17, 000. Initially Ms. Larocque said she could not recall whether he told her to make it payable to Gilden or London Life. She said that the accused told her that London Life had changed their policy and from now on they would receive cheques at home. Ms. Larocque was uneasy with this explanation. She didn’t understand why London Life would change their system. She thought that usually people are advised before something changes. But Ms. Larocque said “we’ll try it and I’ll see if something comes out of it, I’ll call London Life myself”.

[121] On August 15, 2011, Ms. Larocque wrote a cheque to Gilden Financial for $17, 000. She noted on the cheque’s memo line that it was for life insurance. When reviewing a copy of the cheque, she said that the accused had told her to make it out to Gilden. He had explained to her that he was going to send it on to London Life. The life insurance was due so she understood he was going to send it immediately. At the time the cheque was provided to the accused there was no discussion of using the funds for anything but for her life insurance policy. The cheque was deposited into one of the accused’s accounts on August 17, 2011.

[122] Ms. Larocque was not aware that the accused was suspended by London Life about 8 days after her cheque was payable to the accused.

[123] On November 3, 2011, Ms. Larocque received a letter from London Life informing her the life insurance premium was overdue. Her first call that day after receiving that letter was to the accused. She asked what had been done with the money, and whether it was sent to London Life. He told her that he had sent the money to London Life. Ms. Larocque then called London Life and was transferred at some point to Gary Schmidt. She learned from London Life that the funds had not been received by them. It was suggested to her that she should speak with the accused again. At some point in her dealings with London Life representatives she learned that the accused was suspended.

[124] Ms. Larocque contacted the accused once more. He told her the funds had been sent by UPS. She told him she wanted proof of that. On November 10th, she received a copy of a UPS shipping invoice from the accused. The document did not satisfy her because it showed no date and the UPS code was “half-missing”. An email from the accused on that day also informed her that the accused was no longer representing London Life or Quadrus and recommended other representatives to her.

[125] Later that month, Ms. Larocque received a cheque from the accused. It was dated November 24, 2011. The notation in the memo line is “Premium Replacement”. Ms. Larocque had told the accused she wanted a certified cheque or bank draft because she had her doubts and wanted the payment to be guaranteed.

Additional evidence

[126] Ms. Larocque’s application for a RIF indicates that the date of first payment is July 1, 2011.

[127] Copies of the documents provided to Ms. Larocque by the accused as proof he sent the premium funds to London Life were filed. The UPS tracking number cannot be made out. The date on the cheque to London Life cannot be made out.

[128] Mr. Schmidt testified that London Life was contacted by the Larocques. He further testified that London Life did not receive $17, 000 from Gilden Financial or the accused after August 15, 2011.

The Crown’s theory

[129] The Crown alleges that the accused committed the offences at issue by:

• Receiving $17000 from Micheline Larocque on August 15, 2011 with the express purpose of applying those funds to her Life Insurance policy;
• Depositing those funds in his Unity Savings and Credit Union Account on August 17, 2011;
• Failing to apply those funds to London Life as directed;
• Failing to advise Micheline Larocque that he was withholding these funds in his account;
• Deceitfully uttering documentation to give her the impression that these funds were applied as directed; and
• Returning the funds with an acknowledgment that they were not applied as directed.

Marlene Roy (counts 13 (fraud), 14 (theft by fraud), 15 (misappropriation), and related count 16 (using a forged document))

[130] The accused is alleged to have defrauded Marlene Roy and to have committed theft by converting $15, 042.00 of her money and making it his own. In a related count, he is alleged to have used a forged document, in particular, a receipt from Manulife Financial. This is in addition to a count of alleging misappropriation of her funds. The first three counts (13, 14 and 16) are at issue on this application.

The evidence of Marlene Roy

[131] At the time she testified, Ms. Roy was 75 years old. She had retired from work at the local hospital where she was the volunteer services coordinator. Her husband was still working.

[132] Ms. Roy had known the accused since the 1990s. He became the life insurance agent for her and her husband when he took over from another agent. She understood the accused had his own company, Gilden Financial. While the accused assisted the couple with their life insurance policies at London Life he did not assist them with any other kinds of financial transactions.

[133] On August 10, 2011, Ms. Roy wrote a cheque for $15, 042.000 to the accused’s corporation, Gilden Financial. She had acquired this sum by saving and spoke to the accused about adding it to one of her policies. He told her he would do so and she provided him with a cheque. She wanted the funds to go to a policy at London Life.

[134] Because she had not received a receipt for that cheque, Ms. Roy contacted the accused sometime in October. The accused told her she would be receiving a receipt shortly.

[135] About a week or two later, Ms. Roy received a receipt. It was on Gilden Financial letterhead. It showed a payee of Manulife Financial, “/co RG Packman”. It listed a short term investment open interest rate of 1.75%, and an amount of $15, 000. Ms. Roy observed that the amount listed was less than the cheque she had written to the accused by $42. At the time she received the receipt, she thought someone had made a mistake because of this figure, and because it listed Manulife Financial. She had “no transactions with these people”. She did not recall ever having discussed an investment with Manulife with the accused. It had not been her intention to place those funds with Manulife.

[136] After receiving that receipt, Ms. Roy was directed to a new advisor at London Life. At the suggestion of the new advisor Ms. Roy contacted the accused. He effectively told her that the money was better placed with Manulife than London Life because it would get better interest.

[137] After she received notification that her money had been placed with Manulife, Ms. Roy also contacted Manulife. As a result of her dealings with Manulife, and a couple weeks later, she contacted the accused. She felt no need to put her money in Manulife and wanted it to come back to her.

[138] The accused agreed to reimburse her money. He presented Ms. Roy with a “letter of direction” requesting the cancellation of an application to deposit $15, 042.00. The letter was addressed to “Maunilfe Bank c/o RG Packman, Ottawa, ON K1Z 5X9”. It listed an account number that Ms. Roy did not recognize. Ms. Roy understood that signing this document would help her get her money back and she did so. She did not know where the money had gone after she gave it to the accused. She was under the impression it was still with London Life.

[139] A couple of weeks later, Ms. Roy received a cheque in the amount of $15, 117.73. It was dated December 2, 2011. She understood this was the return of her money with interest. She did not know where the interest had come from. The same date, in the presence of the accused, she signed a document on Gilden Financial letterhead. She understood it to be a receipt for the money she had given him. The interest rate referred to on the document (1.75%) did not refer to any of her dealings with the accused.

[140] Ms. Roy was asked in cross-examination if she trusted the accused to make the best investment possible for her. She replied “for sure I trusted him, and he was working for London Life and we had trusted London Life our entire lives”.

[141] Ultimately, Ms. Roy was contacted by Mr. Schmidt about her dealings with the accused.

Additional evidence

[142] Admissions were made that the amounts of $15, 042 or $15, 000 were not invested with Manulife on behalf of Ms. Roy between August 10, 2011 and December 2, 2011. Nor were those amounts invested with London Life or Quadrus in that time period.

[143] Gary Schmidt testified that Ms. Roy and her husband held a single policy with London Life (the number of that policy does not correspond to the account number given in the “letter of direction”). He also testified that neither London Life nor Quadrus paid interest to the Roys of $75.73, the figure indicated in the statement of account given to Ms. Roy on December 2, 2011.

The Crown’s theory

[144] The Crown alleges that the accused committed the offences at issue by:

• Personally withholding the funds of Marlene and Jacques Roy for a 114-day period between August 10, 2011 and December 2, 2011.
• Failing to apply these funds to London Life policy 8317981-8;
• Depositing these funds into a Unity Savings and Credit Union account operated by him;
• Failing to advise Marlene Roy that the funds remained in his account;
• Fabricating documentation to give the impression that these funds were invested in Manulife; and
• When questioned by Marlene Roy, returning these funds to her from a TD Canada Trust account operated by him, with interest from an unidentifiable source or investment.

Bernard and Lucille Lauzon (count 21 (fraud)), count 22 (theft by fraud), and count 23 (misappropriation))

[145] The allegations are that the accused defrauded Lucille and Bernard Lauzon, that he converted $11, 434.08 belonging to them and made it his own, and that he misappropriated their funds. The sufficiency of the evidence on all counts is at issue.

The evidence of Lucille Lauzon

[146] Lucille Lauzon was 74 years old when she testified. Her husband Bernard was 78. Ms. Lauzon had made a living sewing. She retired at about 60, but was still doing some work from home. Mr. Lauzon had worked for Carnation Nestle. He had not fully retired and, according to his wife, “still works around”.

[147] The couple shared responsibility for their finances and always talked about their decisions. While they were working, their practice was to save $5 per week.

[148] The couple met the accused when he came to their home a number of years ago. They had purchased products with London Life before they met the accused. Ms. Lauzon understood that this is why the accused came to their house.

[149] The Lauzons developed a lot of trust in the accused. They liked him. They met at their home and at his office for a number of years. They would communicate with the accused in French. She recalled signing documents with the accused and discussing them in French. She had issues with her eyesight, and while she was not aware at the time, she was also dyslexic. She didn’t closely review documents because she could not see well, and so she trusted what the accused said.

[150] While the evidence of Ms. Lauzon was sometimes difficult to follow, she gave the following account in her evidence.

[151] At some point, the accused sold the Lauzons a life insurance policy. It was for $100, 000 and required premium payments of $10, 000 per year. They were told the policy would make them some money and save on income tax at the same time. Ms. Lauzon said they did not have the funds for the annual premium. She recalled that they used her husband’s pension from Carnation to fund it. The couple also wrote cheques to the accused to satisfy the premium. She agreed in cross-examination that she and her husband had authorized payment from different investments to add up to the $10, 000.

[152] Ms. Lauzon recognized a cheque for $7934.08 made out to Gilden Financial and dated September 1, 2010 as one of the cheques written to the accused. The accused drafted the cheque while at their home. Her husband signed it and she was present. The memo line of the cheque references the couple’s life insurance policy number. At the time, Ms. Lauzon thought was something was wrong, but she didn’t say anything. The accused had told them that Gilden was his company.

[153] Ms. Lauzon said that when they gave the accused this cheque for their life insurance she expected he would invest it into the insurance policy. They did not discuss any other place where this money would be directed. They had no discussions about any other investments at the time. She did not recall any discussions with the accused about using $7000 from her Quadrus account to pay London Life.

[154] Ms. Lauzon agreed that the Canada Revenue Agency had an issue with funds in one of their RRSPs that was not resolved as of September 7, 2000. It was put to her that her husband had asked the accused not to send the $7934 cheque to London Life until the tax issue was settled. Ms. Lauzon said she did not remember that.

Additional evidence

[155] Mr. Schmidt testified he was contacted by Ms. Lauzon. He recalled the Lauzons reached out to him but could not recall how contact was initiated.

[156] The documentary evidence and the evidence of Gary Schmidt establishes that the Lauzons had various investments with London Life, including a mutual fund account with Quadras.

[157] A search of the business records of London Life was conducted by Mr. Schmidt. London Life did not receive a deposit in the amount of $7934. Mr. Schmidt that the number in the memo line of the cheque corresponded with the account number for the life insurance policy held by the Lauzons.

[158] Subsequent to the cheque written by the Lauzons to Gilden Financial for $7934, London Life did receive $7000 which was credited to the Lauzon’s policy. The documents filed show this was a cheque from Quadras to London Life referring to Ms. Lauzon and dated September 22, 2010. A further bank draft was received by London Life from the account of the accused in the amount of $950. The draft was dated December 20, 2010.

Crowns’ theory

[159] The Crown alleges that the accused committed the offences at issue by:

• Withholding the funds of Bernard and Lucille Lauzon ($7934.08) without their consent;
• Failing to immediately apply these funds to London Life policy B547791-9;
• Depositing these funds into his business account; and
• Failing to advise Bernard or Lucille Lauzon that the funds remained in his account.

Lise and Paul Proulx (count 9 (fraud re Paul Proulx), count 10 (fraud re Lise Proulx), count 11 (theft by fraud), count 12 (misappropriation), and related count 37 (using a forged document))

[160] The Crown alleges that the accused defrauded each of Lise and Paul Proulx, that he converted monies belonging to them and made them his own, and that he misappropriated their funds. In a global count framed between July 15, 2009 and November 16, 2011, he is also alleged to have used a forged document, in particular, a transaction ledger. All counts are at issue.

The evidence of Lise Proulx and the documentary evidence

[161] Lise Proulx was 69 years old when she testified. She was a retired school secretary. Her husband Paul was also retired from employment with the local paper mill.

[162] Ms. Proulx testified that she and her husband met the accused in 2008. At the time, they had life insurance with London Life. He called one day to see if they could meet to discuss their life insurance and they began their relationship after that.

[163] In addition to representing London Life, Ms. Proulx was aware that the accused also has his own company, Gilden Financial. She thought she was in good hands with the accused because of his connection to London Life.

The life insurance policy

[164] At some point in 2008, with the assistance of the accused, the Proulxs acquired a $200 000 policy with London Life (policy number B600515-7). Ms. Proulx understood that the policy premiums of $10, 000 per year would not cost them anything because they would be taken from their RRSPs. She understood that each member of the couple would receive $200 000 if the other died and in the meantime they would not be paying income tax on the RRSPs because they would be used to pay for the yearly premium. She agreed in cross-examination that she was also aware that dividends from other life insurance policies the couple held were being used to fund the premium.

[165] Ms. Proulx indicated that she did not send cheques to London Life to pay the premiums on the policy. At no time in her relationship with the accused did she have a TD Bank account. She knew nothing about the cheques from a TD Bank account sent to London Life for deposit to the Proulx’s life insurance policy on August 16, 2010 ($3, 000), August 24, 2010 ($1, 000), November 1, 2010 ($6, 060), and November 16, 2010 ($15) (funds totalling $10, 075). She did not have any conversation about those figures with the accused, or about payment of the annual premium on their policy in any of these quantities.

The car loan

[166] In January 2010, the couple needed money to purchase a car. The accused had previously told them he could lend them money if they ever needed that service. At the time, the Proulx had a term deposit coming due at the credit union within a few months. They discussed with the accused the idea that he would lend them money and they would reimburse him when their term deposit was due. The accused told them he would arrange everything. Ultimately the Proulxs did receive $16, 564.54 from the accused. Ms. Proulx understood these funds were from the accused or his company. She did not understand them to have been drawn from any of her investments. Ms. Proulx reimbursed the accused by cheque on April 14, 2010. The purpose of the cheque was to repay the loan and no authority was given to use the money in any other way.

[167] Ms. Proulx was asked about the “transaction ledger” with respect to the Proulxs accounts. It shows two withdrawals of $8, 282 each from the $200, 000 life insurance policy on January 12, 2010. Ms. Proulx was shown a “request for withdrawal” form from London Life, signed by her, requesting $8282.26 be forwarded to her credit union. The document is dated January 8, 2010. When asked if she understood that this was how the car loan funds would be obtained she said “all along I never thought it came out of our policy, never read it, and never did Paul, we were under the assumption it was never touching our policy”. She denied that she had instructed the accused to do this.

[168] The transaction ledger also shows that $16, 565, the amount corresponding to the value of the car loan, was deposited to the $200, 000 life insurance policy with London Life on April 20, 2010. Ms. Proulx testified she had not given instructions for a cash deposit for that insurance policy.

[169] At some point, Ms. Proulx was given information by an investigator that $10, 000 of the couple’s funds had gone to London Life to the life insurance policy and that the accused owed them in excess of $6, 000. She wrote the accused an email requesting the return of those funds. She received a cheque for $6489 on April 6, 2012 (this sum corresponds to the difference between the $16, 565 car loan repayment and the $10, 075 deposited incrementally to pay the premiums on the London Life life insurance policy). She received no statement or report about that money before it was returned to her. She had not authorized the accused to hold those funds in his own account.

The $15, 000 investment

[170] In July of 2010, the Proulx decided to invest funds with Gilden Financial. The accused had told them that if they had any extra money, they would receive a higher interest rate investing with him than at the bank. Ms. Proulx wrote a cheque for $15, 000 to Gilden Financial on July 15, 2010. She confirmed in her testimony that no discussion took place with the accused about what the rate of return on the investment would be, or where it would be invested. When she provided the accused with the cheque, she expected that since the bank rate at the time was 1.5%, they might obtain 2 or 2.5% investing through Gilden.

[171] Ms. Proulx did not follow up with the accused about what was done with the money.

[172] In June of 2011, the Proulx needed money to fix their roof. Ms. Proulx called the accused and asked for $5000 of their funds. The accused told her that was no problem and she received a cheque for $5000. She understood these funds were coming from their $15, 000 investment. This was an assumption on her part. She did not expressly discuss this with the accused or give him instructions as to where those funds should come from. She did not receive any statement following her $5000 withdrawal and did not request one.

[173] Later, in April 2012, Ms. Proulx requested the remaining $10, 000. The couple intended to purchase a boat. The accused told her there was only $5000 left. By this point, Ms. Proulx said she knew there was something wrong. In email correspondence dated April 16, 2012, she again requested that the accused reimburse their funds. She told the accused that if they did not have the remaining $5000 by May 15th, they would be “seeking legal action”. She requested that all future communication from him be done by email or post.

[174] The accused responded the next day by email. He said “it is unfortunate that you perceive that I have misrepresented you and apologize”. He sent a letter on May 15, 2012, along with a cheque with the same date. The letter states: “These funds are considered a return of deposit which was not credited to the appropriate accounts. They were received as part of your estate planning process and must be returned to you as you may have to apply to your carrier for proper credit. Due to this error, we are refunding you the amount of $5000 and enclose a bank draft to your names”. The letter did not accord with Ms. Proulx’s understanding of how the money was to be used. She did not know what was meant by “appropriate accounts”. She did not understand what was done with the money based on this letter.

[175] At some point after this, Ms. Proulx received an undated letter on Gilden Financial letterhead asking that the Proulx agree to “release us from any liability”. The couple did not sign it. Ms. Proulx said they had done nothing wrong and had no reason to sign it.

[176] On June 11, 2012, Ms. Proulx again emailed the accused. This time, she was asking for the interest on the $15, 000 investment placed with the accused’s company. Since the bank rates had been between 1-1.25%, she asked for interest of 1% on their principal, which amounted to $347.32. The accused replied by email on June 18 that he would comply with her request. The Proulxs were given a cheque in July of 2012 for $360. While the sum was more than she had requested, Ms. Proulx understood this to be the interest payment she had requested for their $15, 000 investment.

[177] In cross-examination, Ms. Proulx was directed to the “transaction ledger” and the entry on June 1, 2011 corresponding to the life insurance policy and showing “$5000 Fr Cash Acct –WD”. She agreed it appeared that in 2011, part of her policy premium was paid from her cash account for $5000. She had not been advised of that, and was not aware of any evidence to suggest this did not happen. In re-examination, she testified that at no time did the accused tell her that $5000 was sent to London Life and she had no other reason to believe that it was.

Additional evidence

[178] The “transaction ledger” shows cash deposits to the Proulx’s life insurance policy of $16, 565 $15 (April 20, 2010) and $15, 000 (July 15, 2010).

[179] Gary Schmidt testified that the Proulxs first contacted London Life about their concerns relating to the accused on May 18, 2012. He also testified that he conducted a search of London Life business records in relation to the accused’s dealings with the Proulxs. The sum of $16, 564.52 was not remitted to any London Life policy following April 14, 2010. London Life did not receive $15, 000 towards any products after July 15, 2010.

The Crown’s theory

[180] The Crown alleges that the accused committed the offences at issue by:

• Failing to invest $15000 of Lise and Paul Proulx’s funds from July 15, 2010 to May 15, 2012, as directed by them;
• Depositing and withholding these funds in his account without advising Lise and Paul Proulx;
• When questioned about the investment, paying interest on these funds from an unidentifiable source;
• Referring to their funds as a “deposit”;
• Acknowledging that their funds were not credited appropriate accounts;
• Requesting to be released from any liability upon return of their funds;
• Failing to apply the funds surrendered to him by Lise and Paul Proulx toward the payment of their annual London Life account #B600515-7 premiums;
• Withholding these funds without advising Lise and Paul Proulx, and paying the premium amount incrementally;
• Failing to advise the Proulx’s that the funds for their vehicle purchase were deducted from their investments;
• Causing London Life account #B600515-7 to be underfunded; and
• Withholding $6489.52 of Lise and Paul Proulx’s funds.

IV. Analysis

[181] The evidence in this case consists of both direct and circumstantial evidence. The direct evidence includes business records and the viva voce evidence of the complainants about their dealings with the accused. It also includes communications in writing from the accused to his clients. Additional inferences may be made based on the totality of the circumstances set out in the records and the viva voce evidence and so I apply the law as it relates to a case involving both direct and circumstantial evidence.

[182] The heart of the defence submission in favour of dismissing the counts it identifies as insufficiently supported by the evidence is that the totality of the circumstances does not permit an inference consistent only with guilt. I have been unable to identify any count of fraud or theft where this was not the crux of the argument by the defence. Given my ruling that the test for a directed verdict does not incorporate the rule in Hodge’s case, and applying the law that all reasonable inferences and inferences favourable to the Crown must be drawn in assessing the evidence on an application for a directed verdict, I am satisfied that the Crown has adduced sufficient evidence to support committal on each count of fraud and theft. Following the limited weighing of the evidence contemplated in Arcuri, I conclude that the evidence as a whole is reasonably capable of supporting the inferences the Crown seeks to have the trier of fact draw about each essential element of the offences. That is, the evidence as a whole, if believed, could reasonably support an inference of guilt.

[183] I have considered the additional defence arguments relating to Howard Ross. While I agree that Mr. Ross’s evidence was somewhat confusing about the timelines involved, there is additional documentary evidence to be considered. It is open to the Crown to argue that there is documentary evidence that establishes the date upon which Mr. Ross provided a cheque to the accused and the date when his funds were returned by the accused. This date range is considerably longer than two days. The totality of the evidence is sufficient for committal.

[184] The evidence adduced establishes that none of the accused’s clients suffered an actual loss. The defence argues that there is no evidence that might establish the required elements to prove the offence of fraud because there was no deprivation caused by a prohibited act (in the sense that the complainant’s pecuniary interests were placed at risk as per Zlatic and Theroux), and there is no evidence of the accused’s subjective knowledge that the prohibited act could have as a consequence the deprivation of any of his clients. The Crown answers that the act of not depositing the funds received from his clients as directed ran the risk of pecuniary loss, and that there is ample evidence that the accused knew that the consequence of his conduct could include deprivation (e.g. asking his clients for release of liability and acknowledging funds had not been applied to the correct accounts). What is at issue at this stage is the sufficiency of the evidence for committal, and not proof beyond a reasonable doubt. After consideration of the whole of the evidence (which I am mindful does not include a request for release from liability in regards to every client), I agree with the Crown that it is sufficient to reasonably support the findings and inferences sought by the Crown to establish both the actus reus and mens rea for fraud beyond a reasonable doubt.

[185] With respect to the counts at issue alleging misappropriation of funds, the defence argues that there is insufficient evidence of the directions given with respect to the funds to permit a properly instructed trier of fact to convict. On this point, as indicated in the summary of the legal principles that apply to this offence, I consider that a direction may be implicit: see Legare and Lowden. The court may look to the totality of the circumstances in deciding whether the accused received a direction from a client that the money or part of it shall be applied to a purpose specified in the direction. The mens rea will be made out where it is shown that that conduct is intentional. Applying that lens to the disputed counts of misappropriation, and having undertaken the limited weighing set out in Arcuri, I am satisfied in each instance that there is some evidence on each of the essential elements of the offence that can be found or reasonably inferred from the evidence, such that a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.

[186] As regards the alleged forgery offences, again here, the totality of the circumstances must be considered by the court, and not only irregularities on the face of the documents alleged to have been forged. I find that applying the correct test on committal, there is some evidence on each element of the offences charged that is reasonably capable of supporting the inferences sought by the Crown. If believed, the evidence as a whole could support an inference of guilt.

V. Conclusion

[187] Following the argument on this application, counsel provided written submissions on the Crown’s application to have the evidence admitted across counts. It was agreed that the results of that ruling might be considered in determining the merits of this application.

[188] In a separate ruling, I have allowed the Crown’s application. While the similar fact evidence is additional circumstantial evidence which may be considered on an application for a directed verdict (see for instance R. v. Kanagasivam, 2016 ONSC 2545, [2016] O.J. No. 1933 (S.C.J.) at paras. 20 and 33), in my view, there is sufficient evidence to warrant committal on each count even without reliance on the evidence across counts. However, the admissibility of the similar fact evidence for the purposes indicated further supports my conclusion as to the sufficiency of the evidence.

[189] For the reasons set out above, the application for a directed verdict is dismissed.

Madam Justice Laurie Lacelle

Released: December 19, 2017

CITATION: R. v. Saucier, 2017 ONSC 7099

COURT FILE NO.: 14-39

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Gilles Saucier

RULING ON APPLICATION FOR A DIRECTED VERDICT

Madam Justice Laurie Lacelle

Released: December 19, 2017