Court File and Parties
COURT FILE NO.: CR-16-369 DATE: September 24, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Caitlin Downing for Her Majesty the Queen
- and -
KATHLEEN THUR Marnie Munsterman, for the Accused Accused
DATE HEARD: September 18 & 19, 2017; March 2, May 24 and May 28, 2018
REASONS FOR DECISION
James, J.
Introduction
[1] Kathleen Thur-Krieger is charged with fraud, obstruction of justice and forgery. For ease of reference I’ll refer to Ms. Thur-Krieger in the same way that her name appears on the indictment, which is Kathleen Thur.
[2] The circumstances giving rise to the allegations against Ms. Thur are somewhat complicated so some background information will be helpful.
[3] Several years ago Ms. Thur was employed as the acting clerk-treasurer for the Township of North Algona-Wilberforce in Renfrew County. She also served in a volunteer capacity as the treasurer of the Rankin Community Centre. She left her position with North Algona-Wilberforce in 2013 and later obtained new employment with McGarry Township near Kirkland Lake, Ontario in May 2014.
[4] In May 2015 Ms. Thur was to appear in Pembroke in connection with the disappearance of over $41,000 that belonged to the Community Centre.
[5] In a November 2015 court appearance, Ms. Thur, then self-represented, pleaded guilty to the main charges and a sentencing date was set for January 7, 2016. She indicated that she intended to hire a lawyer for the sentencing.
[6] In anticipation of the sentencing hearing, Ms. Thur obtained the agreement of the mayor of McGarry Township, Clermonte Lapointe, to sign a letter of support. She prepared the letter and the mayor signed it after reviewing and approving its contents. He said that Ms. Thur was a good employee and he wanted to do what he could to help her. This letter was dated January 4, 2016. I will sometimes refer to this letter as the first letter.
[7] The next day Ms. Thur’s lawyer asked for a further letter from her employer confirming that township officials were aware of the specific charges involved and that she would be able to keep her job if an intermittent sentence was imposed.
[8] The request from the lawyer resulted in the preparation of another letter on January 5 that was purportedly signed by Mayor Lapointe. I will sometimes refer to this letter as the second letter. The second letter was much more specific and contained a statement that the members of council for McGarry Township were “fully aware that she had pleaded guilty to a charge of fraud from a charitable institution, Rankin Cultural and Community Centre” and that “in the event that she receives an intermittent sentence, her job is secured and her employment will continue the same with the Township of McGarry.”
[9] The next paragraph of the January 5th letter provided that “we extremely value Kathleen and her employment at McGarry Township, but due to the importance of her clerk-treasurer’s position it makes it impossible for her to be absent from her job during required work schedule.”
[10] The central issue in this case is whether Clermonte Lapointe was aware of and actually signed the January 5th letter or did Ms. Thur write the letter and forge his signature in an effort to secure a more favourable sentence?
[11] For the reasons that follow I have determined that the mayor was not aware of and did not sign the second letter and that his signature was placed there by Ms. Thur without his knowledge or approval.
[12] I will begin my review of the evidence with the testimony of Clermonte Lapointe.
Evidence of Clermonte Lapointe
[13] Mr. Lapointe is 68 years old. He has been the mayor of the township since 1988. He works at the smelter in Rouyn-Noranda for a few hours each day and usually gets to the township office before lunch. The last municipal election was in 2014. There were five candidates for the mayor’s position in that election.
[14] He said he first learned of Ms. Thur’s legal problems when she was arrested by the police at the Township office in August 2015. Ms. Thur was back at work within a day or two. She told the mayor that the arrest was related to a domestic issue, “something to do with her ex”, she said. Later she repeated the same explanation to members of council.
[15] Mr. Lapointe said that he accepted her explanation and did not follow up with any further enquiries because he treated the situation as a personal matter.
[16] The next time the issue came up was that fall when the receptionist in the township office, Karine Pelletier, who happens to be the mayor’s daughter, opened a piece of mail addressed to Ms. Thur that referred to a court date in Pembroke. She told her father about the letter. Mr. Lapointe didn’t say anything to Ms. Thur about this letter but a few days later he received an anonymous letter at his home that referred to a fraud charge and that Ms. Thur couldn’t be trusted. The letter suggested calling the Pembroke courthouse and included the phone number.
[17] He confronted Ms. Thur with the contents of the anonymous letter. She told him some money had gone missing while she was a volunteer at the Community Centre. She denied taking the money. She said other people were involved in handling the money as well. She said she had a good idea who had sent the letter. Mr. Lapointe destroyed it after showing it to Ms. Thur. Later she asked for a copy of this letter but he said it had already been destroyed.
[18] Mr. Lapointe convened a meeting of council to discuss the situation involving Ms. Thur. Ms. Thur was present. He said that the members of council asked her several questions. She denied any wrongdoing. She said that the amount of money involved in the case was not large but never mentioned a specific amount.
[19] Mr. Lapointe asked his daughter to call the courthouse to make inquiries as had been suggested in the anonymous letter. Some information was obtained about the pending charges and Mr. Lapointe gave an update to the members of council. The consensus of council was to do nothing for the time being and await further developments.
[20] After the Christmas holidays and just before Ms. Thur was to travel to Pembroke in early January for the sentencing hearing, she asked him for a letter of support. Ms. Thur showed him a draft which had already been prepared. Mr. Lapointe said he was satisfied by the contents of the letter and signed it. He said he agreed to sign the letter because she was a good employee and he believed that she was not guilty. He did not discuss the issue with members of council before he signed it but he gave them a copy of it afterwards. He said he was prepared to sign the letter of support without any prior discussion with the members of council because they had previously discussed that she was doing a good job.
[21] Mr. Lapointe testified that he received a call from Ms. Thur’s sister after her court appearance in Pembroke a few days later. She told him that things had not gone well, that Ms. Thur was in custody and would not be returning to work.
[22] Mr. Lapointe called the Ministry of Municipal Affairs to get some advice about the situation. Then he contacted the township lawyer to prepare a letter terminating her employment. He had an informal meeting with the members of council to brief them on the situation and a termination letter was sent to her on January 7, 2016.
[23] He said that Ms. Thur never asked him to sign a second letter. He said he was not aware of the second letter, the letter of January 5th, until the police gave him a copy sometime later.
[24] The fact that there was a letter that had been filed as part of Ms. Thur’s sentencing hearing in Pembroke was raised at a public meeting of the McGarry Township council on March 8th. A ratepayer, Henry Roloefs, referred to an article in the Eganville Leader about Ms. Thur’s sentencing hearing and said that he understood that council had given a letter of support to a fraudster. The article quoted Ms. Thur’s lawyer as saying he had a copy of a letter from the Township indicating that her employer knew that she was pleading guilty to fraud allegations and was going to be sentenced. Another ratepayer, Dennis Smith, also addressed the same issue at the same meeting. Clearly some local citizens were agitated by the possibility that the mayor and/or council had provided such a letter and pressed the elected officials to disclose what they knew about the correspondence.
Evidence of Sylvie Cote
[25] Ms. Cote was the township bookkeeper for about three years until she was promoted to clerk-treasurer after Ms. Thur was terminated. She recalled when Ms. Thur was arrested at the township office. When she returned to work Ms. Thur told her that the issue that led to her arrest related to the purchase of a gun and something about her “ex”.
[26] She said that after Ms. Thur had been sentenced, a petition was circulated around town that was critical of the mayor with particular reference to an enterprise she referred to as McGarry Solar. When the petition was presented to council in March 2016, Mr. Roloefs accused the mayor of taking money from the project. There was also a reference to the article in the Eganville Leader on the topic of Ms. Thur’s sentencing and Mr. Roloefs questioned the members of council to see if they were aware of a letter or letters of support signed by the mayor. No one appeared to be aware of the second letter which contained the much stronger statement of support and referred to the fraud charge specifically.
[27] The first time Ms. Cote saw the second letter was when it was sent to the township office by the police after the contentious March meeting of council. Around this time, the date is unclear, Ms. Cote discovered some documents in the emails to Ms. Thur on the computer Ms. Thur had used at work and that had been taken over by Ms. Cote when Ms. Cote became the acting clerk-treasurer. These documents included an email from Ms. Thur’s counsel on January 4th requesting a stronger letter of support and a copy of the second letter of January 5th. She brought this correspondence to the mayor’s attention and he said to give copies to the members of council.
[28] Ms. Cote also testified that in addition to the correspondence, she found a piece of Township letterhead with handwriting that appeared to be the signature of Clermonte Lapointe written in the middle of the page which was provided to the police. It was in a file containing an assortment of papers.
[29] Ms. Cote’s recollection of details was not particularly good. Initially, she wasn’t sure whether the contentious council meeting took place in February or March. She gave conflicting answers on whether Mr. Roloefs asked about one or more letters of support. She wasn’t sure when the mayor asked her to give copies of the first letter to the members of council. Several times she changed her evidence during the course of her testimony and she had a poor recollection of the sequence of events.
Testimony of Kathleen Thur
[30] Ms. Thur is 53 years old. She lives in Virginiatown with her husband and her son who is 18 years old. She previously resided near Pembroke, Ontario.
[31] She commenced her employment with McGarry Township on June 2, 2014. Her criminal record includes numerous fraud charges from 2000 when she forged medical prescriptions and the convictions in 2016 for stealing money from the Rankin Community Centre. The restitution order that was imposed as part of her sentence in 2016 was for $41,452.53.
[32] She acknowledged that she lied to her co-workers about the nature of the charges when she returned to work after her arrest for the Pembroke charges. She explained that the matter was at an early stage and she didn’t want to alarm them.
[33] On November 6, 2015 Ms. Thur appeared in Pembroke court. She was unrepresented. She pleaded guilty to fraud and breach of trust and indicated she intended to retain counsel for the sentencing hearing that was set for January 7, 2016.
[34] Ms. Thur said she first told Mr. Lapointe about the allegations respecting the missing money when he questioned her about the anonymous letter. He asked her to tell the members of council what she had told him about the issue.
[35] In describing what she told the members of council during her cross-examination, Ms. Thur said she mentioned that money was missing from the Rankin Community Centre but didn’t tell them about the fraud charges. She said she didn’t get into the details because she hadn’t pleaded guilty at that point, that nothing had been finalized. She said she couldn’t remember the exact words she used.
[36] Ms. Thur agreed that she may have given Mr. Lapointe the impression that she expected to return to work after her court appearance in January.
[37] A few days before her sentencing, her lawyer suggested that it would be helpful to obtain a letter of support from her employer. She thought that she might be able to keep her job if an intermittent sentence was imposed. She met with Mayor Lapointe who read and approved a letter that she had written. He signed the letter and she scanned it to her lawyer.
[38] Her lawyer responded that it would be better if the letter contained more specifics and in particular, that her employer was aware of the details of the charges against her.
[39] When Mr. Lapointe arrived at the township office on January 5th, Ms. Thur had already prepared the second letter and she gave it to the mayor to review. They discussed the additional details that had been included in the second letter and the mayor signed the letter in her presence. The meeting lasted about half an hour.
[40] She specifically denied that she signed his name to the letter.
[41] Mr. Lapointe advised Ms. Thur to tell the other women in the office the reason why she was going to be away from work on January 7. She told them she had to go to court over some missing money. She said they seemed to be quite understanding.
[42] Mr. Lapointe asked her to call him after court the next day. When asked if she told him that she had pled guilty to the charges, she said she couldn’t recall.
[43] When asked whether she told her employer that she wouldn’t be back to work on January 8, she said she didn’t remember telling them that she wouldn’t be back. She said there was a possibility of an intermittent sentence.
[44] When the cross-examiner suggested that she didn’t want to tell them that she wouldn’t be back because she didn’t want to lose her job, Mr. Thur said she did not want to alarm them and that nothing was for sure.
[45] Ms. Thur said she told Mr. Lapointe that she could be serving an intermittent sentence when they discussed the contents of the second letter.
Evidence of Annie Toupin-Keft
[46] Ms. Toupin-Keft was called as a defence witness. She is a member of council for McGarry Township. She is 42 years old. She works for the Department of Veterans Affairs. This is her first term as a councillor. She met Ms. Thur when she filed her nomination papers back in 2014.
[47] Ms. Toupin-Keft said that the members of council were made aware that Ms. Thur had been arrested at the township office in August 2015 within a day or two of the event. She received an email that the arrest had occurred but it was very general and alluded to the situation as being a personal matter.
[48] Ms. Toupin-Keft did not have any discussions with Ms. Thur about the situation from August to November. The issue arose again in November when the mayor called an emergency meeting saying that he had received information from the court that Ms. Thur was involved in some criminal charges and that one of them was for fraud.
[49] Her evidence contradicted Mr. Lapointe’s evidence regarding what prompted him to cause a call to be placed to the Pembroke courthouse in November 2015. I understood this somewhat confusing testimony to be to the effect that she was told by the mayor that he was driving by the courthouse in Pembroke (I add as an aside that it is not clear how that would have occurred) and he recognized Ms. Thur’s vehicle which prompted him to make, or cause to be made, the telephone call to the court that Mr. Lapointe referred to in his evidence. Ms. Toupin-Keft said she assumed that Mr. Lapointe was referring to the courthouse in Kirkland Lake.
[50] She said the mayor never referred to the anonymous letter in his discussions with the councillors. She also said that this is when she first became aware that the matter included fraud allegations. Her recollection was that Ms. Thur was not at the meeting. She agreed that the members of council thought it would be best to keep the issues with Ms. Thur under wraps and see what was going to happen next.
[51] Ms. Toupin-Keft said there was a follow up meeting in November when Ms. Thur was present and apologized to the council. There was no discussion regarding the specifics of the charges. She said that Ms. Thur was told at the meeting that if she wanted the councillors to help her, she had to tell them what was going on; that she had to be more open with them. Ms. Toupin-Keft said that the councillors knew at this time that she was charged with an offence that included fraud allegations. Ms. Thur told them that she was going to fix the situation. There was no mention of pleading guilty.
[52] Ms. Toupin-Keft said that she got a copy of the first letter, that is, the letter of support dated January 4, 2016, in a package of material prepared in the township office sometime after the newspaper article in the Eganville Leader reporting on Ms. Thur’s sentencing hearing. Exhibit 8 is an extract from the newspaper dated January 15, 2016 that contains a report about the sentencing hearing.
[53] She said that there was lots of gossip around town about the letters of support that were purportedly signed by the mayor. Ms. Toupin-Keft’s evidence appears to contradict the evidence of Mr. Lapointe about when the first letter was provided to the members of council.
[54] Several questions were posed to Ms. Toupin-Keft on whether the discussion at the March 8 council meeting involved references to one letter or more than one letter of support. She agreed with the suggestion that Mr. Roloefs would have only referred to one letter because the article from the Eganville Leader only referred to one letter and it was the newspaper article that was the source of information about a letter of support from McGarry Township. She also agreed that it made sense that Mr. Lapointe would have denied signing the second letter which appears to have been the letter referred to in the newspaper article.
Evidence of Jackie Osmond
[55] Ms. Osmond is a handwriting expert with the Centre of Forensic Sciences. She studied the signature on the second letter and known samples of Mr. Lapointe’s signature on other documents.
[56] Her findings were inconclusive. She was unable to say that:
- The signature on the second letter was written by Ms, Thur, or
- The signature on the second letter was written by Mr. Lapointe.
[57] Ultimately she could not exclude either of them as having signed the second letter.
The Elements of the Offences
[58] That completes my review of the evidence. I will now outline the offences with which Ms. Thur has been charged.
[59] Fraud- section 380(1)(b). This offence involve defrauding the public or any person, by deceit, falsehood or other fraudulent means, of any property, money or valuable security or any service.
[60] Obstructing Justice- section 139(1). This offence involves a wilful attempt to obstruct, pervert or defeat the course of justice. There are three elements to this offence. Did Ms. Thur sign Clermonte Lapointe’s name on the signature line of the letter of January 5? If I find that she signed his name, did doing so tend to obstruct the course of justice? And finally, did Ms. Thur intend to obstruct the course of justice?
[61] Uttering a Forged Document- section 368(1). This offence involves knowing a document is forged and using or holding out the forged document as if it was genuine. The term “forgery” generally refers to intentionally making a false document and intending it to be acted upon as genuine to the prejudice of person to whom it is presented or to deceive that person. By "uttering”, I mean the act of intentionally dealing with the forged document or putting it some improper use.
Applicable Legal Principles
[62] Crown counsel has the burden of proving Ms. Thur’s guilt beyond a reasonable doubt. This never changes. If I was to conclude that she was likely guilty, she would be entitled to be found not guilty because Crown counsel would have failed to prove her guilt beyond a reasonable doubt. Likely or probable guilt does not meet the required standard of proof.
[63] She also has the benefit of the presumption of innocence and this presumption remains with her throughout the trial unless and until Crown counsel proves her guilt beyond a reasonable doubt.
[64] Determining guilt or innocence involves more than a credibility contest. Guilt cannot be determined by choosing among competing versions of what happened. When the accused presents evidence that contradicts the evidence tendered by Crown counsel, the Court must apply an analytical framework commonly referred to as the W.D. analysis. There are three elements to consider. The first element is obvious. If I believe Ms. Thur, she is entitled to be found not guilty. Secondly, even if I don’t believe her, disbelief alone is not sufficient to justify a finding of guilt. That’s because even if I don’t believe her testimony, I may still have a reasonable doubt as to her guilt, in which case again she is entitled to be found not guilty. Thirdly, even if I disbelieve the defence evidence and this testimony does not create a reasonable doubt, I must consider the quality of the evidence against her. The court must be satisfied by evidence that the court accepts that the guilt of an accused person has been proved beyond a reasonable doubt before the presumption of innocence is displaced and a finding of guilty can be made.
[65] The determination of whether Crown counsel has proved Ms. Thur’s guilt beyond a reasonable doubt requires that I make factual findings based on conflicting evidence. I have to determine what allegations I will accept and what allegations I am not prepared to accept.
[66] Fact-finding in the face of contradictory evidence involves assessing the credibility of witnesses. Generally speaking, the assessment of credibility includes observing witnesses as they give their evidence, considering conflicting evidence in relation to known facts, determining the presence or absence of inconsistencies, assessing probabilities and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. While engaging in the process of finding facts I may accept some, none, or all of a witness’s testimony.
The Principles Applied
[67] I did not find Ms. Thur to be a credible witness. On several occasions, Ms. Thur resorted to obfuscation and deceptiveness when explaining the legal situation she was facing to her employer and her colleagues as her court case progressed. For example, when arrested, she lied to the mayor and others when she was asked what had led to her arrest. She said it was something involving her “ex”, which I took to be a reference to her former husband, when in fact the charges had nothing to do with him at all.
[68] Also, before leaving for Pembroke for her sentencing hearing in January, 2016, after having been told by her lawyer that imprisonment would likely be the result, she suggested to the mayor that she would be back at work the next day.
[69] During this trial, when asked whether she had disclosed all her criminal convictions, she said yes except for driving offences. It later emerged that she had been convicted of impaired driving.
[70] In several instances, her answers to questions posed during her cross-examination were vague. She did not answer questions directly and at times seemed evasive. Her answers to hard questions were couched in language such as I don’t exactly recall or I don’t remember the exact words used.
[71] I will provide some examples. When questioned about her discussions with Mr. Lapointe in the timeframe from November to January, Crown counsel asked Ms. Thur as follows:
“Q. Did you ever tell Mr. Lapointe that you pled guilty to fraud charges here? A. I – I don’t know in the exact words – I don’t know exactly how we discussed it, no. I can’t… Q. Did you ever tell Mr. Lapointe that you pled guilty to charges here? A. When we met in January and when we were discussing the letters it was – in reading the content of the letters and what my lawyer required, yes, it came up then.”
[72] In reference to what Ms. Thur disclosed to her employer about the prosecution’s sentencing position, Crown counsel asked the following questions and received the following answers:
“Q. But the Crown, prior to you pleading guilty, told you that the Crown would be seeking for you to be sentenced to 12 months jail, right? A. It was – if I recall it was on the paperwork, yes. Q. So you knew that prior to enter(ing) the guilty plea? A. Well, it was arranged but again, like I had nothing – I didn’t know, again, I did not know anything would be the outcome of the 7th. Q. So just to be clear, despite knowing that the Crown was going to seek 12 months jail, you did not tell Mr. LaPointe? A. No, because, again, my lawyer had advised me that he was seeking to have intermittent sentence so I would be able to serve it on the weekend. That’s how he had me led to believe that on the sentencing, I would be – there was a good chance that I could get intermittent where I would serve it on the weekends. Q. Okay, so you meet with Mr. Lapointe on the 3rd of January, right, and you talk to him about providing a reference letter for your sentencing? A. Yes. Q. And you tell him that you’re going to be sentenced for fraud? A. No, I didn’t – well, it was in the letter. I’m – I don’t know how – we discussed – we discussed the matter on the 3rd and then further on the 4th and on the 5th. What exactly we spoke on each of those days but he was aware of what – like I didn’t use the word specifically that, I just said the situation of missing funds. Q. Okay. So (it was a) situation of missing funds as opposed to the situation of stolen funds? A. Hm-mm.”
[73] Ms. Thur’s evidence about the circumstances of signing the second letter, the letter of January 5th, resulted in the following exchange with the prosecutor:
“Q. So you’re present with him in the office and he signs it in front of you? A. Yes. Q. How long does this review of the letter take? A. Each one or just the last one? Q. The last one? A. He was probably in the office with me that was probably the only thing that we were discussing at that time, could have been anywhere from an half an hour to an hour. Q. And during that half an hour to an hour, what are you discussing? A. Well, when was this matter and either municipal work. Q. Okay, so you’re not solely talking about this letter then? A. No. Q, So in terms of talking about this letter, how long does that take? A. I can’t – I can’t say exactly. It was within that time frame but we were – to discuss some other matters too so to say, you know, exactly, I can’t tell you, no, it could have been – I don’t – it could be anywhere from 10 to 20 minutes. I’m not exactly sure.”
[74] Also relevant to an assessment of Ms. Thur’s credibility is the fact that she has been convicted of crimes of dishonesty in the past. Not only the taking of money from the Rankin Community Centre but also multiple counts of falsifying doctor’s prescriptions.
[75] As for the evidence of Clermonte Lapointe, he answered most questions directly and without hesitation. He appeared to me as confident as he gave his evidence. I did not find him to be evasive. He sounded defensive at times when pressed about the contentious council meeting in March, 2016 and the petition that was presented by Mr. Roloefs, but in the context of the discussion of the letter or letters of support and what each of them said, it is understandable that there was confusion and that tempers may have flared up. Recall that Mr. Lapointe was being questioned about the contents of a letter that he said he didn’t know existed until he learned of the letter from the police.
[76] It seems more likely than not that the questioning focused on one letter, not two. At the meeting Mr. Lapointe said he did not sign “the letter” which was referred to in the newspaper article. I find that at that point in time Mr. Lapointe did not know about the second letter. At the same time, it makes sense that the questioners at the council meeting weren’t aware of the first letter, a point acknowledged by Ms. Toupin-Keft.
[77] When asked specifically at the trial whether he signed the second letter, he said that he knows that he did not sign the letter of January 5th.
[78] I also find that the timing of Ms. Thur’s termination from her employment with the Township on January 7 is corroborative of the Crown’s position. In the defence submissions at paragraph 74 Ms. Munsterman suggests that Mr. Lapointe had a motive to deny signing the second letter because “all was good until the constituents found out and started questioning” in reference to the contentious council meeting and the petition organized by Mr. Roloefs. Recall, however, that as soon as Mr. Lapointe got a call from Ms. Thur’s sister on the day of the sentencing, he pursued the termination of her employment. This was about two months before the confrontation at the council meeting. The question that may be asked is that if the mayor was so content with her work and was committed to maintaining her employment despite the fraud conviction, why did he move so quickly to terminate her?
[79] On another note, I would like to refer to the evidence of Ms. Cote that a piece of letterhead was found in a file on Ms. Thur’s desk that contained what appeared to be a specimen of Mr. Lapointe’s signature. There was a suggestion that this might have been evidence of Ms. Thur practicing to write the mayor’s signature. There was contrary evidence that this was part of a project that involved digitalizing the Township’s crest for use on some promotional material. I draw no conclusions from this evidence and make no findings about the presence of this document in the file.
[80] I acknowledge the inconsistency in the evidence of Mr. Lapointe and Ms. Toupin-Keft regarding what prompted Mr. Lapointe to request that inquiries be made at the Pembroke courthouse in November, 2015. This evidence is collateral to the main issue in the case but I find Ms. Toupin-Keft’s version somewhat improbable and I prefer the explanation provided by Mr. Lapointe.
[81] And finally, I would like to refer to the inconclusive expert evidence regarding the signature on the second letter. While this evidence is inconclusive, I am not left in a state of reasonable doubt because of this uncertainty. I accept unreservedly the evidence of Clermonte Lapointe that he did not sign the second letter for the reasons that I have indicated. I reject the evidence of Ms. Thur that Mr. Lapointe signed the letter in her presence and I find that the defence evidence, when weighed against the evidence I do accept, does not raise a reasonable doubt.
[82] I am left with the inescapable conclusion that the second letter, being the letter of January 5th that was tendered by Ms. Thur’s counsel at her sentencing hearing, was prepared and signed by Ms. Thur, that in supplying this letter to her lawyer, Ms. Thur uttered a forged document and did so for the purpose of obstructing justice, that is, for the purpose of misleading the court that her employer was aware of the specific nature of the offences and that her employment was secure if an intermittent sentence was imposed.
[83] I am not convinced that Crown counsel has made out the elements necessary to support a finding of guilt for fraud as referred to in count 1, in particular that there has been a deprivation with the meaning of the section, but there will be findings of guilt on counts 2 and 3.
Mr. Justice Martin James