COURT FILE NO.: CR-15-70000276-0000

DATE: 20180614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Carlos Alberto Pavao

BEFORE: Molloy J.

COUNSEL: B. McCallum, for the Crown (Responding Party) W. Fox and S. Hassan, for the Defendant (Applicant)

HEARD: June 11, 2018

ENDORSEMENT

(Defence Application to Reopen the Trial)

The Application

[1] After a two-week trial in January/February 2018, I convicted Carlos Pavao on 10 counts of defrauding individual complainants and one count of defrauding the public. The total amount of the fraud was approximately $1.2 million and involved selling non-existent shares in gold mining companies to unsophisticated and unsuspecting investors. My written reasons for that decision were issued on April 30, 2018.[^1] At that time, I set June 11, 2018 as the date for sentencing.

[2] Prior to the date fixed for the sentencing hearing, the parties delivered their sentencing materials. The defence also delivered an application to reopen its case in order to put forward new evidence, being the passport of Carlos Pavao, which the defence contended supports Mr. Pavao’s evidence at trial that he was in St. Kitts in March of 2007 when some of the crucial transactions occurred. The Crown opposed the application.

[3] On June 11, 2018, I first heard submissions on the application. I dismissed the application, indicating that written reasons would be delivered later. Those reasons are set out below. I then proceeded to hear the sentencing submissions. I reserved my decision on sentencing. I will be delivering a separate decision on sentencing on August 22, 2018.

The Test

[4] I accept that I still have jurisdiction to consider whether to reopen the evidence given that the motion was brought prior to sentencing and I was therefore not functus officio.[^2]

[5] There is no dispute between the parties as to the applicable test for the admission of new evidence after a party has closed its case. The Palmer test applies and the moving party must meet the following four criteria:

(i) Due diligence: The evidence will generally not be admitted if, by due diligence, it could have been adduced at trial;

(ii) Relevance: The evidence must bear upon a decisive or potentially decisive issue at trial;

(iii) Credibility: The evidence must be credible in the sense that it is reasonably capable of belief; and,

(iv) Importance: The evidence must be such that, if believed, it could reasonably, when taken with the other evidence at trial, be expected to have changed the result.[^3]

[6] All four branches of the test must be met before the new evidence will be considered. Here, the defence has failed to fully satisfy and of the criteria, but in particular has failed to demonstrate that the evidence to be adduced could have affected the result.

Due Diligence

[7] If this had been the only problem, I would have admitted the evidence, bearing in mind that a more liberal approach is taken on this issue in criminal cases. The defence explanation for the delay is that Mr. Pavao “forgot” that his passport had been deposited with the police and was still in their custody. A copy of the passport had been disclosed to the defence and counsel had failed to notice the visa to enter St. Kitts in 2007, which is stamped on the visa. According to the affidavit evidence filed, the omission was not noticed until Mr. Pavao saw the copy of the passport on May 24, 2018 and pointed to the “Caricom Visa,” which the defence submits documents his entry into St. Kitts on March 12, 2007.

[8] Essentially, the defence was asserting a partial alibi defence. Mr. Pavao testified at trial for two weeks in March 2007 he was out of the country on vacation with his family in St. Kitts and that the witnesses who testified that they met with him during that period of time were lying, and that the documents he purportedly signed during that time were forgeries. The defence was aware well ahead of trial that this defence would be asserted, but failed to put forward any evidence whatsoever to support it. The passport would be only one of multiple ways of establishing this alibi, even if I were to accept that Mr. Pavao merely forgot where his passport was. For example, Mr. Pavao was not there alone. Two of his daughters, who were called as defence witnesses, were said by him to have been present on this vacation, but neither of them was asked about the St. Kitts trip in 2007. Likewise, none of the passports for the other family members were produced, nor were there any receipts for flights or hotel accommodation or meals, or even any family photos of the trip. Mr. Pavao’s own passport was only one source of information that had not been pursed earlier.

[9] In these circumstances, I am not fully satisfied that the due diligence test is met. That said, as I have indicated, if this was the only issue, I would not be troubled.

Relevance

[10] I accept that the passport entry bears in some measure on whether Mr. Pavao was in St. Kitts in 2007. That, in turn, has an impact on his credibility, and potentially on the credibility of witnesses who said they met with him in Toronto. The passport therefore has some marginal relevance. However, as can be seen from my reasons for convicting Mr. Pavao, there were numerous other credibility problems for Mr. Pavao. Whether or not he entered St. Kitts on March 12, 2007 is not particularly relevant to any of those issues.

Credibility

[11] The passport is a piece of real evidence and it contains a stamp indicating that a “Caricom Visa” was issued, entitling Mr. Pavao to make multiple entries from January 15, 2007 and May 15, 2007. The visa states that it was issued in St. Kitts on March 12, 2007. No other supporting evidence was presented. I accept that this visa appears on Mr. Pavao’s passport. I have no way of knowing whether that means he was necessarily physically present in St. Kitts on March 12, 2007, as I have no evidence as to the manner in which such visas are issued, or how one applies for them. I do note that there are no entry or exit stamps on Mr. Pavao’s passport to indicate when, if at all, he entered and exited St. Kitts during that period of time.

[12] The defence called no evidence to explain the meaning of the visa. However, in response to the defence application, the Crown filed the affidavit of the officer-in-charge, Detective Philip Chung. Det. Chung stated that at the conclusion of the trial on February 14, 2018, Mr. Fox (counsel for Mr. Pavao) requested a copy of Mr. Pavao’s passport, which the detective sent to him that same day. On February 16, 2018, on his own initiative and without any request from the defence, Det. Chung attended at the office of the Consulate General of Saint Kitts and Nevis in Toronto and spoke with Honorary Consul Dr. Winston Isaac. Det. Chung enlisted the assistance of Dr. Isaac in determining when and if Mr. Pavao entered or exited St. Kitts during the time of the visa. He followed up with Dr. Isaac several times. As of the date of the affidavit on June 7, 2018, Det. Chung learned that the government of St. Kitts has been unable to find any record that Mr. Pavao entered or exited that country after January 15, 2007. However, this was based on a manual search as the records had not been installed on electronic data bases until after that date. All of this information was disclosed to the defence.

[13] At the request of the Crown, Dr. Isaac attended in court on June 11, 2018 and defence counsel had a full opportunity to meet with him. The defence declined to call Dr. Isaac in support of the application.

[14] Accordingly, all I have before me is a visa that would have entitled Mr. Pavao to enter St. Kitts between January and May 2007. It states that it was issued on March 12, 2007. However, I do not know whether these can be issued by mail, or through the consulate in Toronto, even though stating that it was issued in St. Kitts. More importantly, even if I accept that Mr. Pavao was in St. Kitts on March 12, 2007, I have no idea what time he arrived or how long he was there.

[15] The weight that can be attached to the visa is therefore quite limited. I will discuss the significance of that in the section below.

Importance

[16] Finally, the onus is on the defence to establish that the new evidence now tendered could reasonably be expected to have affected the result. The Caricom Visa stamp on Mr. Pavao’s passport does not come close to meeting that test.

[17] As I have already stated, there is no evidence before me that the issuance of the visa on March 12, 2007 means that Mr. Pavao was necessarily present himself in St. Kitt’s on that date. On that basis, the visa itself establishes nothing beyond the fact that Mr. Pavao was entitled to be present in St. Kitts.

[18] That said, for purposes of this analysis, I am prepared to accept that Mr. Pavao was present in St. Kitts at some point on March 12, 2007. However, the visa provides no information whatsoever as to the time of day it was issued. There are multiple daily flights between Toronto and St. Kitts, including some that leave later in the day. It would be entirely possible for Mr. Pavao to have been present in his office and transacting business for part of the day on March 12, and still to have arrived in St. Kitts later that same day. Therefore, there is nothing about the visa stamp that undermines the credibility of Dan Meghory (the complainant on Count 6), who testified that he met with Mr. Pavao in his office on March 12, 2007 and witnessed Mr. Pavao signing the subscription agreement pursuant to which Mr. Meghory paid $28,000 for shares that, as it turned out, never existed.

[19] Allan Sadowy (the complainant on Count 8) paid $30,000 for shares pursuant to an agreement that purports to have been signed on March 14, 2007. Mr. Sadowy testified that Mr. Pavao signed this agreement. I did not accept Mr. Sadowy’s evidence on this point and did not find that Mr. Pavao personally signed that agreement. Rather, I found that the agreement appeared to have been signed by Mr. Pavao’s associate, Sam Lawrence in his own name. However, I was satisfied on the basis of other evidence that Mr. Sadowy met directly with Mr. Pavao at some point within the time frame on the indictment (March 14, 2007 to November 7, 2007) and received advice from him, and further that he was persuaded by Mr. Pavao to invest in the gold mining stock. I convicted Mr. Pavao on this count, notwithstanding the fact that I found Mr. Sadowy’s memory was not perfect as to what documents he witnessed Mr. Pavao sign.[^4] The timing of the March 2007 meeting was not a critical factor in my decision on this count. Therefore, even if Mr. Pavao had been in St. Kitts on March 14, this would have no impact on my decision on Count 8.

[20] There were no other complainants who alleged meeting with Mr. Pavao between March 13 and March 21.

[21] Neil Doherty (Count 3) testified that he met in person with Mr. Pavao on March 21, 2007. John Venchiarutti (Count 4) testified that he entered into a second agreement for the purchase of shares on March 23, 2007. Although Mr. Venchiarutti did not say he witnessed Mr. Pavao sign this agreement, Mr. Pavao testified that this was his signature. I found both Mr. Doherty and Mr. Venchiarutti to be credible witnesses.

[22] In his evidence, Mr. Pavao testified that he was in St. Kitts for two weeks, but he did not testify as to his departure date. If in fact he entered St. Kitts on March 12, 2007 and was there for two weeks, that would not put him back in Toronto until March 26, 2007. That is inconsistent with his own evidence that he signed the agreement with Mr. Venchiarutti on March 23, 2007.

[23] Thus, the Caricom Visa stamp on March 12, 2007 does nothing to undermine any of the findings I made at trial. The meetings alleged on March 12, 2007 could easily have occurred before departure for St. Kitts. Since the return date cannot be verified by the passport, and since Mr. Pavao was proven to be neither a credible nor a reliable witness, there is no evidence to contradict the finding that Mr. Pavao was present in Toronto by March 21, 2007.

[24] In any event, the timing of when these documents were signed is not a significant issue. It is entirely possible that they were signed on dates other than those shown on their face. The drafting of these documents was sloppy in the extreme, and there were many other errors, as noted in my reasons. What was critical to my decision was the evidence of the various complainants that they met directly with Mr. Pavao. On these points I found their evidence to be credible. However, I found Mr. Pavao to have been both unreliable in his memory and deliberately untruthful in his testimony. I provided extensive reasons for those findings in my decision convicting Mr. Pavao and will not repeat them here.[^5]

[25] Further, at para. 39 of my earlier decision I specifically drew an adverse inference from the failure of the defence to elicit any evidence from two of Mr. Pavao’s daughters as to the timing of the trip to St. Kitts. Notwithstanding that, and notwithstanding the fact that Mr. Pavao’s entire family was present in court on June 11, 2018 this application to reopen was argued, the defence sought only to tender the evidence of the visa stamp. This merely reinforces my view that the return date provided by Mr. Pavao in his evidence is not reliable.

[26] In short, even if the visa stamp is accepted as proof that Mr. Pavao was in St. Kitts on March 12, 2007, this would have had no impact on my findings of credibility and unreliability as against Mr. Pavao.

Conclusion

[27] Accordingly, the defence has failed to meet the test for the admission of this new evidence. This application is dismissed. My earlier decision stands.

MOLLOY J.

Date: June 14, 2018

[^1]: R. v. Pavao, 2018 ONSC 2506. [^2]: R. v. Griffith, 2013 ONCA 510 at para. 12. [^3]: Palmer and Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at p. 205 (S.C.C.); R. v. Arabia, 2008 ONCA 565 at para. 46. [^4]: R. v. Pavao, 2018 ONSC 2506 at paras 158-172. [^5]: See in particular: “Testimony I Find to be Untrue (paras. 32-39); “Inconsistencies in Mr. Pavao’s Evidence” (paras. 40-48); “Evidence That Is Unbelievable in Light of Other Evidence” (paras. 49-57); and “Unreliability of the Defence Evidence” (paras. 58-63).