COURT FILE NO.: CR-16-10000689

DATE: 20190917

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEVEN NOWACK

Renna Weinberg, for the Crown

Paul Slansky, for Steven Nowack

HEARD: February 4, 6, 11, 13, 14, and 19, 2019; May 6, 16, 30, and 31, 2019

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

[1] Stephen Nowack promoted himself as a highly successful currency trader. He claimed that he had a superior knowledge of the currency markets. He claimed that he made enormous returns. Between 2009 and 2013 he convinced several investors to invest money with him. Collectively, those people lost around US$19.5 million. Mr. Nowack spent some of the money on himself and his family. He used some of the money invested by late investors to pay off earlier investors. The rest he simply lost. He disclosed none of that to his investors. Instead, he sent most of them fictitious “account statements” showing enormous profits.

[2] When some of the investors started asking for their share of the profits, Mr. Nowack balked. He paid some of the investors using funds from other investors. He told some investors that there were banking problems. He told some investors that there were regulatory problems. He simply stonewalled some investors.

[3] Several of the investors became suspicious and went to court in an attempt to get their money back. None were successful. Not surprisingly, some of the investors went to the police to claim that they had been defrauded.

[4] In 2013 the Toronto Police charged with Mr. Nowack several counts of fraud. Mr. Nowack was scheduled to commence his trial on February 4 2019. He brought two pre-trial motions. The first motion – this one – was something of a moving target but essentially demanded further disclosure from the Crown. It later morphed into a motion for a stay of proceedings based the Crown’s alleged failure to preserve evidence and make timely disclosure. For convenience, I refer to this motion as the “disclosure motion” throughout these reasons.

[5] The second motion – which I deal with in companion reasons released at the same time as these reasons – was an abuse of process motion. Mr. Nowack alleged that Crown counsel improperly coordinated the prosecution with civil counsel for the complainants. I ruled that the abuse of process motion must wait until the end of the trial, in the event of a conviction: R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 at para. 27.

[6] I heard a few days of evidence prior to jury selection in relation to the disclosure motion. Mr. Nowack then requested an adjournment of the jury trial in order to complete the disclosure motion. I dismissed the request. I said that we would complete the jury trial. I would hear further evidence and submissions in the event of a conviction. There was indeed a conviction. In fact, the jury convicted Mr. Nowack of all 12 counts of fraud.

[7] The disclosure motion continued after the jury’s verdict. The Crown conceded that there were problems with disclosure. In my view, these problems did not result in a violation of Mr. Nowack’s right to make full answer and defence.

[8] I indicated on August 2 2019 that both motions were dismissed. I indicated that my reasons would follow for both. These are my reasons for dismissing the disclosure application.

THE EVIDENCE AT TRIAL

[9] This summary of the evidence is taken from my reasons for judgment on sentencing: R. v. Nowack, 2019 ONSC 5344.

[10] Commencing in 2009, Mr. Nowack held himself out as a knowledgeable and skilled currency trader. He was never registered with the Ontario Securities Commission. He opened multiple trading accounts in London using an online trading platform provided by a company called FXCM. He told people the accounts were actually in New York. That was one of many lies. He also told people that FXCM granted him the ability to leverage his trading up to 400x. That was another lie used to induce investment from people who could not otherwise obtain that kind of extraordinary leverage in their personal trading. Between November 3 2009 and October 2013 several investors transferred funds to Mr. Nowack. Mr. Nowack was to trade currency. Most of the investors signed an agreement with Mr. Nowack. Some did not. Currency trading profits were to be split 37.5% to Mr. Nowack and 62.5% to the investors, although there were some variations. Mr. Nowack represented to the investors that 100% of their money would be invested in currency trading. That was another lie.

[11] There were several ways in which the jury could have arrived at a guilty verdict. Since it is unclear which route the jury took, I made my own findings of fact in order to determine sentence: Criminal Code, s. 724, R. v. Punko, 2012 SCC 39 at paras. 11-12. The same findings are made for the purposes of this application.

[12] There were three aspects of the fraud: the diversion aspect, the misrepresentation aspect, and the “live trading” aspect. Members of the jury could have convicted Mr. Nowack any one of those bases, or on all of them. I found in my reasons for sentence that Mr. Nowack committed the fraud in each of these ways:

(a) The Diversion Aspect Of The Fraud

[13] Mr. Nowack did not invest each investor’s money into foreign currency trading. Instead, he diverted some of their money for his own purposes. The fraud was also a Ponzi scheme: Mr. Nowack diverted some of the funds of some of the investors in order to pay other investors. He did not disclose the diversions.

[14] Between October 1 2009 and July 1 2013 a total of the $19,576,515.21 (combined Canadian and US dollars) was transferred to Mr. Nowack’s FXCM accounts from his Canadian bank accounts. Mr. Nowack’s trading losses amounted to US$19,249,162.82. FXCM shut down Mr. Nowack’s accounts in June 2013. The accounts were left in a deficit position of US$854,399.16. A total of US$1,905,002.36 was returned from FXCM accounts to Mr. Nowack’s accounts in Canada.

[15] During the course of the fraud Mr. Nowack used a total of $2,703,468.54 for personal purposes (combined US and Canadian dollars). Mr. Nowack, his wife, and his mother received $1,321,198.22 in cash. Mr. Nowack used $480,096.55 for legal fees. He used $479,528.30 for credit card payments. Mr. Nowack used $324,581.59 to pay personal expenses directly. He diverted $98,063.88 to his music business.

[16] Mr. Nowack testified that he did not perpetrate a Ponzi scheme. He simply moved money that he was otherwise entitled to in order to pay investors. He also believed he was entitled to take profits. He was therefore entitled to divert some investor money because he could account for it using the profits in the FXCM account.

[17] Mr. Nowack’s evidence was not credible on this point. If he was accounting for funds moved around by setting off profits in the FXCM accounts, where are the spreadsheets or working papers showing those calculations? None were found. In my view, the jury did not believe him. Neither did I.

(b) The Misrepresentation Aspect Of The Fraud

[18] Mr. Nowack told investors that he was making millions of dollars. That was a lie. He told investors that his investment fund had tens of millions of dollars in it. That was also a lie. Mr. Nowack sent out “account statements” that showed individual investors making excellent returns. Those account statements were works of fiction. He lied to investors when they asked for the return of their funds. He invented reasons for failing to pay profits or to return the original investment. He blamed banking or regulatory problems.

[19] At trial Mr. Nowack testified that he was making huge profits from trading currency “pairs”. Trading currency pairs is a zero-sum game: if one party makes money the other party must lose. He was trading billions of dollars. He claimed that large investment banks, such as Goldman Sachs and J.P. Morgan, were very upset about the massive losses he was causing them. The management of FXCM therefore decided to hide his profits in “demonstration” accounts. He said that he still had over US$146 million in these accounts, including the so-called 979 accounts. He said FXCM was still hiding his money. FXCM has manipulated the trading records in order to hide the fact that it has stolen his money. He pointed to FXCM’s very real regulatory offences in the United States and the U.K.

[20] Mr. Nowack’s evidence on this point was also not credible. In my view, the jury clearly rejected his evidence. The 979 account and other demonstration accounts did not hold real money. The trading records showed that Mr. Nowack lost all of the investor money – and those records balanced. Mr. Nowack used these demonstration accounts holding fake money to induce investors to put up real money.

[21] Mr. Nowack provided Mr. Auciello with an email, ostensibly from FXCM, indicating that he had over US$146 million in account 979. Nobody at FXCM sent that email. It was not sent from a recognized FXCM address. Moreover, it makes no sense that FXCM would send an email indicating that he had $146 million in an account when it was supposedly hiding those profits. That email was a forgery. Mr. Nowack quite obviously and deliberately created that email in order to mislead Mr. Auciello and his colleagues.

[22] Over the course of the fraud, FXCM charged US$10,811,268.95 in commissions. That amount represented just over half of the total amount invested by the investors. How did Mr. Nowack generate such enormous fees? Every time Mr. Nowack traded he did so at a furious pace. Every time he clicked on his mouse he generated a trade. He was constantly clicking his mouse. That is what Mr. Nowack testified to. That is what the investors who watched him trade testified to. Those investors watched Mr. Nowack generate trades in a demonstration account, but some of the trading might have been genuine.

[23] Because of Mr. Nowack’s high volume of trading, FXCM rebated US$11,260,684.20. Mr. Nowack did not disclose the rebates to the investors – he took the position at trial that he was entitled to the rebates and was not required to disclose them.

[24] The rebate scam meant that Mr. Nowack made money whether or not his investors lost. The investors were not aware of the rebates. The rebates were ploughed back into trading, but they represented pure profit for Mr. Nowack. Whether the rebates were a diversion or a misrepresentation (or both) they were part of the fraud.

(c) The Live Trading Aspect Of The Fraud

[25] Mr. Nowack traded “live”. He let several investors watch him trade on his computer or on his mobile phone. I find that every investor who watched Mr. Nowack trade live on-screen watched him trade using demonstration accounts. A demonstration account is an account opened by an investor in order to practice trading or try out an investment strategy. No real money is used. Some investors may have seen real accounts at some point but Mr. Nowack presented the demonstration accounts as real accounts. He did that in order to induce the investors to invest. The investors, of course, did not know that the accounts were not real.

[26] Mr. Nowack never had more than US$5.7 million in his FXCM accounts at any one time. Therefore, any time an investor saw more than US$5.7 million in an account onscreen he was watching a demonstration account. The FXCM accounts were shut down in June 2013. Any investor who saw an onscreen account after that time was watching a demonstration account.

[27] Stephen Chan, Vito Galloro, Desi Auciello, Rino Montemarrano, Mark Rynties, Manuel DaCosta, and Anthony Montemarrano all watched Mr. Nowack trade live on-screen. I find that Mr. Nowack showed each one of them a demonstration account in order to induce them to invest. David Weenen, Vince Saragosa, and Joseph Greenberg never actually saw Mr. Nowack trade live on-screen. Instead, he told them that he was making vast profits. Those were also lies designed to induce them to invest.

[28] Mr. Chan took an undated photograph of Mr. Nowack’s trading screen showing account 381. The account showed over US$88 million in it. Mr. Chan took another photograph of Mr. Nowack’s trading screen showing account 981 on July 7 2013. The account showed over US$16 million in it. Those accounts were clearly demonstration accounts.

[29] Mr. Galloro took a photograph of one of Mr. Nowack’s trading screens in February 2013. The balance in the account was US$56 million. In July 2013 he saw a trading screen with a balance of over US$100 million. Those accounts were demonstration accounts.

[30] Mr. Auciello testified that Mr. Nowack had more than US$10 million in the account he saw. Rino Montemarrano testified that he dropped by Mr. Nowack’s house to watch the trading with Mr. Auciello. Anthony Montemarrano also watched Mr. Nowack trade onscreen. I infer from the circumstances that Rino Montemarrano and Anthony Montemarrano watched at the same time as Desi Auciello and saw the same demonstration account.

[31] Dr. Rynties testified that he watched Mr. Nowack make US$750,000 over the course of four hours. Mr. Nowack only had 36 trades – among thousands in almost four years – where he made more than US$10,000. He had only one where he made more than US$20,000. I infer from that evidence that Mr. Nowack showed Dr. Rynties a demonstration account in order to induce him to invest.

[32] Mr. DaCosta testified that he saw Mr. Nowack trade live on a mobile phone. He did not testify to the number, but he did say that Mr. Nowack appeared to be very successful. In my view, it is unlikely that Mr. Nowack showed demonstration accounts to the other investors but a real account to Mr. DaCosta. I find that Mr. Nowack showed him a demonstration account in order to induce him to invest.

[33] Dan Cusimano and Joe Ferraro testified for the defence. Both saw Mr. Nowack trade live on-screen. Both saw balances as high as US$160 million. Both believe that they saw Mr. Nowack trade real money using a real account. I have no doubt that Mr. Nowack also lied to them about what was happening on-screen. Both men saw demonstration accounts, not real accounts.

(d) The Losses

[34] Most of the investors lost all of their money. None of the investors received their original investment back. Those that received some money obtained it from other investors through Mr. Nowack. None of the investors received profits. The only person who came out ahead was Mr. Nowack.

[35] The total loss to the criminal complainants was C$15,679,087.59.[^1] Other investors did not make a complaint to the police. These other investors lost about $6 million.[^2] Thus, some $21.9 million (combined Canadian and US dollars) flowed into Mr. Nowack’s Canadian and U.S. dollar accounts from all the investors over the course of the fraud.

NATURE OF THE TRIAL

[36] I will clarify for the reader why in these reasons I sometimes refer to a submission made by Mr. Nowack or a submission made by Mr. Slanksy. Mr. Slansky assisted Mr. Nowack in a limited capacity. He was not fully retained. He said that he was providing services to Mr. Nowack on an “unbundled basis.” He asked for leave to only cross-examine some of the witnesses, and to argue some of the motions. Mr. Nowack personally cross-examined the other witnesses and argued some motions himself. I permitted this arrangement because an accused person has the right to represent him or herself: R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933. It was my view that my inherent power to control the process in my own courtroom permitted me to do this. I also felt that it would assist Mr. Nowack, who would otherwise have had no assistance at all from counsel. Crown counsel took no issue with this arrangement. The arrangement was confusing at times and was perhaps not efficient. When I say that I am not being critical of Mr. Slansky. The Court appreciates his assistance. I am satisfied that the arrangement helped facilitate Mr. Nowack’s right to a fair trial.

THE CIVIL LITIGATION

[37] As I mentioned, several of the investors sued Mr. Nowack. Two of the lawsuits resulted in substantial litigation: one lawsuit involving Dr. Joseph Greenberg, and one lawsuit involving a numbered company, 256523 Ontario Inc. That company was the corporate vehicle of Desi Auciello, Rino Montemarrano, and Desi Montemarrano.

[38] Some of the other investors who were also criminal complainants also filed statements of claim against Mr. Nowack. Several have obtained default judgments. Mr. Nowack alleged that Crown counsel improperly coordinated the prosecution with civil counsel for the complainants. The defence position, as I will relate, is that emails between civil counsel for the complainants and Crown counsel were relevant to the abuse of process motion. The defence position is that they were first party disclosure and should have been disclosed automatically.

THE CHRONOLOGY

[39] The following are the key dates in the criminal and related civil proceedings:

• October 23 2013: The Toronto Police charge Mr. Nowack with 13 counts of fraud.

• March 27 2015: Morgan J. finds Mr. Nowack in contempt and sentences him to 15 days incarceration (Greenberg v. Nowack, 2015 ONSC 2015).

• September 8 2015: Preliminary inquiry commences on the Ontario Court of Justice.

• April 11 2016: Dunphy J. finds Mr. Nowack in contempt and sentences him to 30 days incarceration (256523 Ontario Inc. v. Nowack, 2016 ONSC 2518).

• November 3 2016: Preliminary inquiry concludes. Mr. Nowack ordered to stand trial. Mr. Nowack eventually brings a certiorari application to quash the committal on one count.

• November 24 2016: First appearance in the Superior Court on the criminal charges.

• December 16 2016: The Ontario Court of Appeal dismisses Mr. Nowack’s appeal from Dunphy J.’s contempt decision (256523 Ontario Inc. v. Nowack, 2016 ONCA 951).

• January 24 2017: First trial date of March 26 2018 is set.

• June 22 2017: A judicial pre-trial is held on the record on the criminal charges. Mr. Nowack indicates that he is missing disclosure but is unable to specify what is missing. Justice McMahon advises Mr. Nowack to advise the Crown of the missing disclosure by the end of July.

• June 30 2017: Dunphy J. finds Mr. Nowack in contempt for the second time and imposes a sentence of a further 21 days (256523 Ontario Inc. v. Nowack, 2017 ONSC 5240).

• July 27 2017: Another judicial pre-trial is held on the record on the criminal charges. McMahon J. indicates that Mr. Nowack is to advise the Crown of the missing disclosure within two weeks.

• September 26 2017: A third judicial pre-trial is held on the record on the criminal charges. McMahon J. indicates that Mr. Nowack has still not made a disclosure request of the Crown.

• January 24 2018: C. Brown J. finds Mr. Nowack in contempt and sentences him to six weeks (Greenberg v. Nowack, 2018 ONSC 416).

• March 6, 2018: Himel J. dismisses Mr. Nowack’s certiorari application (R. v. Nowack, 2018 ONSC 826). On the same day Ducharme J. dismisses Mr. Nowack’s application to stay the charges for delay pursuant to s. 11(b) of the Charter (R. v. Nowack, 2018 ONSC 826).

• March 12 2018: First trial date of March 26 2018 is vacated at Mr. Nowack’s request to await the appeal of Himel J.’s decision. A new trial date of November 5 2018 is set.

• September 26 2018: The Ontario Court of Appeal dismisses Mr. Nowack’s appeal from Himel J.’s decision (R. v. Nowack, 2018 ONSC 784).

• November 5 2018: Second trial date. Adjourned at Mr. Nowack’s request to await the decision of the Supreme Court of Canada on Mr. Nowack’s application for leave to appeal the decision of the Ontario Court of Appeal. A trial date of February 4, 2019 is selected to commence the pre-trial motions. Jury selection is scheduled for February 15 2019.

• December 12 2018: Mr. Nowack sends a disclosure demand to Crown counsel.

• January 25 2019: I dismiss Mr. Nowack’s application to remove Ms. Weinberg as Crown counsel due to a conflict of interest. I find that the application has no reasonable chance of success.

• January 31 2019: The Supreme Court of Canada dismisses Mr. Nowack’s application for leave to appeal the decision of the Ontario Court of Appeal.

• February 4 2019: Pre-trial motions commence; on subsequent days some evidence is heard on the disclosure motion.

• February 14 2019: Mr. Nowack emails a more specific disclosure demand to Crown counsel.

• February 15 2019: Jury selection commences.

• April 26 2019: The jury convicts Mr. Nowack of 12 counts of fraud.

• May 6 2019: date set for continuation of the disclosure motion. May 16-17 set aside.

• May 16 2019: Motion continues.

• May 17 2019: Mr. Nowack indicates that he is ill. He asks for bail so that he can be taken to the hospital. I direct that the authorities take him. I deny his request for bail.

• May 21 2019: Mr. Nowack indicates that he has sustained injuries as a result of the reckless driving of the court officers. He asks to be taken to the hospital. I direct that he be taken. May 30-31 are set aside for continuation of the disclosure motion.

• May 30 2019: Mr. Nowack brings another application for bail. No evidence is heard on the disclosure motion.

• May 31 2019: Further evidence on the application for bail.

• June 3 2019: Further evidence on the application for bail.

• June 10 2019: I dismiss the application for bail.

• June 27-28 2019: Further evidence on the disclosure motion.

• July 29 2019: Submissions on the disclosure and abuse of process motions.

EVOLUTION OF THIS MOTION

[40] On January 30, 2019 Mr. Nowack filed a motion alleging non-disclosure by the Crown. He requested a stay of proceedings or adjournment as a remedy. February 4, 2019 was set to be the first day of pre-trial motions. Jury selection was to commence on February 15 2019.

[41] On February 4, Mr. Slansky indicated that Mr. Nowack made an extensive disclosure request on December 18 2018 by email. He indicated that the Crown was still disclosing material. He wanted to hold off arguing the motion until he knew what the Crown had disclosed. Ms. Weinberg indicated that most of the material had already been disclosed but she did indicate that she had discovered that there was some missing disclosure. She was endeavouring to put it together. Mr. Nowack also made submissions. He accused the Crown and the police of a pattern of ongoing misconduct. The motion was adjourned for two days.

[42] The Crown made ongoing disclosure of emails, some missing documents, and officer’s notes. There were further court appearances on February 6, 11, and 13. Upon reviewing Mr. Nowack’s email request and the Notice of Motion I indicated that Mr. Nowack would have to deliver a more detailed request. The December 18 2018 email simply asked for broad categories of documents, many of which the Crown indicated had already been disclosed. I suggested that it might be more helpful if Mr. Nowack could be more specific about what he believed that he was missing.

[43] On February 14 2019 Mr. Nowack sent a more focussed request to the Crown. Crown counsel indicated that she was unable to comply with the request in such short order. Evidence began on the disclosure motion but did not complete. Mr. Nowack later requested an adjournment of the trial. I denied the request and said the following:

I am not going to make a full ruling on the merits of the disclosure request at this time. I am only going to deal with the practical aspects of moving the trial along. I will say that there is no doubt that the Crown failed to make disclosure of some things that it should have disclosed, most notably the Wells Fargo financial records. Ms. Weinberg did admit that she failed to disclose those records in a timely manner. There is also some Crown disclosure that came late in the process and should have been disclosed earlier.

That said, the basic problem here was not the failure of the Crown. The basic problem is that Mr. Nowack’s disclosure request came on the eve of trial. Mr. Nowack was on notice for well over a year that he was required to make a detailed disclosure request prior to his abuse of process motion. On September 26, 2017 during an on-the-record JPT Justice McMahon told Mr. Nowack to send a disclosure request by October 13, 2017. Further disclosure may have been discussed at other points at other appearances. I have not reviewed all the transcripts of the appearances before Justice McMahon. Mr. Nowack did not send a disclosure request in accordance with Justice McMahon’s direction. In fact, Mr. Nowack did not send a disclosure request until December 12, 2018. He sent an email. It was not specific. It simply asked for categories of documents. After I was appointed as trial judge in January of this year I told Mr. Nowack several times that he had to send a much more specific and detailed disclosure request that was more meaningful. He told me he was working on it several times. The disclosure motion was adjourned several times for that purpose. On February 14, 2019 at 8:30 am in the morning he did send a more specific request to the Crown, although I must say it wasn’t really detailed enough to be truly meaningful – but it was better. Jury selection was scheduled for February 15, 2019, the next day. The disclosure motion was commenced on February 14, 2019. Frankly, had Justice McMahon’s direction been complied with, then these issues could have been dealt with more than a year ago. For example, the Wells Fargo records were referenced in Ms. Toledano’s forensic report of August 2017. I am not suggesting that the failure to disclose the Well Fargo records by the Crown is excusable, but a proper evaluation of the report and a timely disclosure letter may well have revealed that failure. I draw the inference that Mr. Nowack did not read Ms. Toledano’s forensic report until Ms. Toledano’s examination in November 2018. It is difficult for me to understand why Mr. Nowack did not review the August 31 2017 forensic accounting report until late 2018. Had he done so he undoubtedly would have noticed the reference to the Wells Fargo records. Mr. Nowack is not shy. I am sure had he reviewed the report then something would have been said at a subsequent judicial pre-trial or in a subsequent disclosure request. If he had read it and noticed the omission then it is difficult to understand why he did not make a submission to the court or write a disclosure letter to the Crown. As far as I can tell he never raised the Wells Fargo issue until his December, 2018 email.

Frankly, I still do not have what I consider a satisfactory explanation for Mr. Nowack’s failure to comply with Justice McMahon’s direction in September 2017 that he make a specific disclosure request to the Crown. Even if I accept his evidence that he did not know he could ask for emails, that does not explain his failure with regard to other aspects of disclosure.

I have now heard two days of evidence in chief from Mr. Nowack about what he says is a lack of disclosure. I have heard evidence that goes to an abuse of process motion. I have certainly heard many complaints about the police, the Crown, and the complainants. I will not comment on the merits of the abuse of process motion, or on the merits of the disclosure aspects of the abuse of process motion because that motion is not fully heard and I must have a full evidentiary record. I simply have not heard any specific evidence that persuades me that Mr. Nowack is unable to make full answer and defence to the criminal charges themselves or that he is unable to cross-examine any particular witness, including David Weenan. In other words, I have not heard meaningful evidence that the Crown has failed to disclose anything that goes to Mr. Nowack’s ability to deal with the criminal allegations, as opposed to the alleged abuse of process. And that is in the absence of Crown cross-examination on the disclosure motion.

Accordingly, an adjournment of the trial is not appropriate. I do not see any unfairness to Mr. Nowack. I will adjourn this disclosure motion. It will be brought back on at an appropriate point in the proceedings after discussion with counsel. In the meantime, I expect that the Crown will continue to comply with its ongoing duty of disclosure. I also expect that Mr. Nowack will do what he is required to do, which is to review the disclosure he gets, and follow up with further disclosure requests about those things he believes he is missing and that he requires, whether for the abuse of process motion or for making full answer and defence to the criminal charges. I will be somewhat lenient about requests to recall witnesses if it should be necessary.

As I have said, I am not in any way commenting on the merits of any abuse of process application. At this point I think it must come at the end of the case if there is a conviction. It may also be that there is a viable lost evidence argument in relation to emails automatically deleted by the Toronto Police service. Again, that will come at the end of the trial if there is a conviction.

We will commence tomorrow with the Crown’s opening statement and the calling of evidence.

[44] Jury selection commenced on Friday February 15 2019. It was completed on the following Monday. I set aside February 19 to try and complete the evidence on the disclosure motion. Mr. Nowack gave further evidence. On that same day, Crown counsel disclosed more emails on a disk. On February 20, 2019, Mr. Nowack asked for another adjournment. He again accused the Crown of a pattern of continuing misconduct. He stated that he needed more time to go through the emails and wanted two more days. I did not agree. I stated at the time:

The only pattern in this case that I can discern is an ongoing and consistent attempt by Mr. Nowack to delay a trial on the merits. There will be no adjournment.

[45] The jury convicted Mr. Nowack of twelve counts of fraud on April 26 2019. The disclosure motion continued after the jury convicted Mr. Nowack.

ISSUES

[46] The issues on this motion were something of a moving target. By the end the issues were somewhat more settled. In submissions, Mr. Slansky identified two areas of late or lost disclosure:

• Outstanding disclosure which became late disclosure during the trial as well as other late disclosure; and,

• Lost disclosure.

[47] As I stated on August 2 2019, these were the issues on this motion:

(a) Did the Crown fail to make disclosure in a timely manner?

(b) Did the Crown or the police fail to preserve evidence, notably emails generated by the Toronto Police Service?

(c) Did the Crown breach Mr. Nowack’s rights by refusing to fulfill a disclosure request in relation to an Mutual Legal Assistance Treaty request to the United Kingdom?

(d) Was Mr. Nowack’s right to make full answer and defence impaired?

(e) What remedy, if any, should follow?

[48] These were my findings:

(a) There were some instances where the Crown failed to make disclosure in a timely manner. Crown counsel conceded as much. In my view, those were either minor, an oversight, or had no impact on the ability of the defence to make full answer and defence. The Crown otherwise made disclosure in a timely manner. Moreover, there was a failure of due diligence by Mr. Nowack.

(b) The Crown and the police did not fail to preserve evidence. The Crown and the police were under no duty to preserve emails unless they were relevant. There is no evidence that any relevant emails existed and were destroyed. In any event the defence failed to pursue this line of disclosure with due diligence.

(c) The Crown was not required to accede to the disclosure request in relation to the MLAT request.

(d) Mr. Nowack’s right to make full answer and defence was not impaired.

(e) There is no need for a remedy.

ANALYSIS

(a) Did the Crown fail to make disclosure in a timely manner?

[49] The defence argues that the Crown failed to disclose several categories of documents in a timely manner:

• Notes of Police Officers and OSC Investigators;

• Communications related to an alleged abuse of process;

• TD Bank records; and,

• Wells Fargo records.

[50] There is no question that an accused person is entitled not only to disclosure, but timely disclosure. Disclosure is not a separate right. It is a constituent of the right to make full answer and defence. Disclosure makes full answer and defence possible. Timely disclosure allows the defence to explore potential avenues of investigation: R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. An accused person must establish that the Crown has failed to make timely disclosure of relevant material. In order to obtain a remedy, however, he or she must then show actual prejudice to the right to make full answer and defence: R. v. O’Connor, [1995] 1 S.C.R. 411 at para. 74; R. v. Spackman, 2012 ONCA 905 at para. 111.

[51] Diligence in requesting disclosure is also a factor. Disclosure is rarely perfect and the process is prone to human error. It is inevitable in a complex case with voluminous disclosure that things will be missing or incomplete. Thus, an accused person must bring a disclosure failure to the Crown’s attention in a timely way: R. v. Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326 at para. 24. Failure to do so is something a trial judge may consider when determining if there has been prejudice to the accused’s right to a fair trial: R. v. McQuaid, 1998 805 (SCC), [1998] 1 S.C.R. 244. As Cory J. stated at para. 38 (in part):

If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial…

[52] In my view, none of the instances of “late disclosure” violated Mr. Nowack’s right to make full answer and defence. In several open-court pre-trials in this Court, Mr. Nowack complained that the Crown had failed to make full disclosure. Justice McMahon told Mr. Nowack that he was required to communicate with the Crown particularizing the alleged failures. Mr. Nowack did not until December 18, 2018 – less than two months prior to his third trial date.

[53] To be fair to Mr. Nowack, three factors that affected his ability to do due diligence. First, he was fighting a two-front war. In addition to the criminal prosecution, Mr. Nowack faced numerous lawsuits. While in many respects he was the author of his own misfortune – he was found in contempt of court several times – it was still a factor that he had to deal with. Second, in 2016 Mr. Nowack was diagnosed with cancer and required surgery and a lengthy recovery period. It would obviously be completely unreasonable to expect that a person suffering a serious life-threatening condition would spend his or her time reviewing disclosure. Third, Mr. Nowack was self-represented for much of the time. I do not fault him for not knowing things that a self-represented person ordinarily would not know. I do fault him where he used his status as a self-represented person as a tactic.

[54] That said, even accounting for the problems facing Mr. Nowack, I find that he wilfully failed to do his due diligence.

[55] Mr. Nowack testified at length on the motion. I had grave difficulties with his evidence. I found him to be combative and unreliable. He did not understand the difference between a submission and evidence. He said things that were clearly exaggerated. He said other things that were demonstrably false.

[56] Mr. Nowack testified that the police and the Crown acted in bad faith. There was not a shred of evidence to support that allegation. He speculated that the Crown and police deliberately withheld disclosure in order to violate his rights. He pointed to disclosure of a large quantity of emails from Toronto Police officers on February 14 2019. Mr. Nowack requested the emails on December 12 2018. Ms. Weinberg was on vacation and did not receive the request until December 27, 2018. Ms. Weinberg asked the TPS to provide emails on January 14 2019. Mr. Nowack testified that Ms. Weinberg’s failure to ask for the emails for two weeks (leaving the holidays out of it) after returning from vacation was a deliberate failure to make timely disclosure.

[57] Mr. Nowack also pointed to an email from Rino Montemarano to Detective Dahan in response to a subpoena. The email was sent to Detective Dahan on January 17, 2019. The email impacted on Mr. Montemarano’s credibility. It was disclosed to Mr. Nowack on February 14, 2019. The email was disclosed as part of a package of numerous emails. Mr. Nowack testified that disclosure almost a month later was also evidence of bad faith.

[58] I disagree. These examples do not demonstrate anything even approaching bad faith. Crown counsel had a responsibility to respond to the request but it must be borne in mind that she was also preparing for a lengthy trial, organizing a response to a very late disclosure request, and no doubt dealing with other cases. Crown counsel does not have a responsibility to drop everything and instantaneously respond to a disclosure request, especially when it is made on the eve of a third trial date. It is surely not unreasonable or abusive to disclose emails in a package, rather than piecemeal. Moreover, I am entirely certain that had the emails been disclosed piecemeal Mr. Nowack would have complained about that.

[59] I do not see that this “failure” to disclose was part of the Crown’s strategy to make things difficult for him in his trial preparation. Frankly, I think a reasonable observer could infer that it was exactly the opposite. I infer that Mr. Nowack’s late disclosure request was tactically designed to obtain another adjournment. Justice McMahon told Mr. Nowack several times in 2017 that he must make a proper disclosure motion. Mr. Nowack waited until December 2018 to write an email demanding vast categories of disclosure. His motion did not comply with the Criminal Proceedings Rules. As Justice McMahon told him, and I later told him, he needed to make a particularized request. He did not until Thursday, February 14 2019 at 8:30 in the morning. That was just before he was supposed to give evidence on the disclosure motion. It was also the day before the court had long scheduled the jury pick. He then argued that he required an adjournment because the Crown had failed to make disclosure. I did not accept his argument. I did not grant the adjournment.

[60] Ultimately, Mr. Nowack was unable to articulate how the late disclosure affected his ability to make full answer and defence. I did not observe any impairment of the right during the trial itself.

[61] I turn to the individual items at issue here:

Late Disclosure Of Notes Of Police Officers and OSC Investigators

[62] The investigation against Mr. Nowack began in 2013. A search warrant was executed at his home in October 2013. Mr. Nowack was arrested and charged at the same time. The police obtained production orders in 2013 and 2014. The two main investigating officers were Detective Constables Valerie Dahan and Baj Sandhu of the Toronto Police. Investigators from the Ontario Securities Commission were also involved. Mr. Nowack testified that the Crown disclosed the notes of the investigators, including the officers who conducted the search, in 2013 and 2014. Many of the notes had redactions. Virtually all the redactions appear to be related to communications between police officers and Crown lawyers.

[63] In his December 2018 email Mr. Nowack indicated that he had not received notes from many of the investigators on the case, including OSC investigators. He also demanded explanations for the redactions. The notes were disclosed to him in short order, including the updated notes of Detective Constable Dahan. Detective Constable Sandhu had transferred to the Ontario Provincial Police and had no further involvement in the case. Many of the notes that were unredacted, including some that contained obvious solicitor-client communications. Crown counsel explained that because of the rush to provide notes to Mr. Nowack several redactions were missed.

[64] Mr. Slansky argued that the late disclosure amounted to a failure to disclose because it came late in the process. He argued that a court would normally grant an adjournment. Since I had refused the adjournment the only realistic remedy left was a stay of proceedings. A lesser remedy, such as a mistrial, is not available to a trial judge after a jury’s verdict: R. v. Henderson (2004), 2004 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont.C.A.).

[65] In my view it was appropriate to adjourn the balance of the motion until the end of the evidence in order to determine the effect of the late or non-disclosure on the ability of the accused to make full answer and defence: R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545, (Ont.C.A.) at para. 8. I agree with Mr. Slansky that the Crown breached its duty of timely disclosure in this case with regard to the notes. The Crown has an ongoing duty to provide disclosure, including the notes of the investigating officers.

[66] That said, there are factors that militate against a remedy here. The first, as I have emphasized, is that there was a failure of due diligence by the defence. There were no requests for disclosure, again, until the eve of the third trial date. More importantly, however, I saw no breach of the right to make full answer and defence – and certainly no interference with the fairness of the trial. The second is that the notes were all disclosed prior to testimony. I note that Detective Constable Dahan and Detective Constable Sandhu were both called by the Crown at Mr. Nowack’s request in order to build his abuse of process motion. Their cross-examinations added nothing to Mr. Nowack’s defence.

Late Disclosure Of Communications Related To An Alleged Abuse Of Process

[67] The defence argues that the Crown failed to provide emails between Crown counsel and civil counsel for the complainants in a timely manner. The emails were disclosed on the eve of trial in response to Mr. Nowack’s request.

[68] The judicial pre-trial form was filled out by hand by Mr. Slansky and signed on June 15, 2017. Section 20 of the form is entitled “Applications to stay proceedings (other than s. 11(b)) based on:” The box for abuse of process is ticked. The following handwritten notes were on the form:

1. Pros for civil debt

2. Pros for pressure for civil

3. Pros to get evidence for civil

Abusive cooperation between crown/police & civil counsel/parties

[69] In his December 2018 email Mr. Nowack stated that he anticipated that Norman Groot and Martin Greenglass would be witnesses on the abuse of process motion. He stated:

“You have not provided me with all of the correspondence (letters, emails and attachments) related to these witnesses.”

[70] The defence argument is that the Crown should have provided the emails based on the judicial pre-trial form.

[71] I disagree. There was much discussion during on the record judicial pre-trials about the alleged abuse. There was no mention of disclosure until Mr. Nowack’s email of December 18 2018. Even then the request was couched with the assumption that such material is first party disclosure. It is clearly not: R. v. Jackson, 2015 ONCA 832; Stinchcombe at para. 12. Emails between Crown counsel and the lawyers for the complainants in a fraud case are hardly the “fruits of the investigation”. It is true that where a complainant or counsel for a complainant divulges relevant information or documents the Crown must make disclosure. That, in fact, happened here. Many documents were provided to the Crown from the complainants directly or through their lawyers and entered into evidence.

[72] Crown counsel is not, however, required to divine what the defence might be, or what a motion might be, and make disclosure accordingly. There are, of course, many situations where the Crown can reasonably anticipate a disclosure request for material not falling within Stinchcombe and in its discretion may make disclosure. On a day-to-day basis, that often happens. In a complex case, however, the defence position may not be obvious.

[73] Here, the Crown took the position at all times – correctly in my view – that the abuse of process application was without merit. There is no onus on the Crown to gather material that may have relevance to something that is meritless or frivolous. If the defence contests the Crown position, the defence can seek a remedy.

[74] The Crown did provide books of emails without forcing Mr. Nowack to bring a disclosure application. That was a tactical decision by Crown counsel to avoid protracted litigation that might have delayed the trial.

[75] When I questioned Mr. Nowack in submissions about the reason for the late request for disclosure, he stated he was not aware that he could obtain emails until the Crown disclosed some emails from complainants. I do not accept Mr. Nowack’s explanation. Although he was self-represented for much of the time, he also had experienced defence counsel assisting him. Given the timing of the request, it is difficult to conclude that it was not strategic. Even if it was not, the late disclosure, if it was that, had no impact on Mr. Nowack’s ability to build a record for an abuse of process application. Throughout the trial he, or Mr. Slansky, asked witnesses questions about their counsel and even about communications with their counsel. He used the emails that had been disclosed. I cannot see any breach of the right to make full answer and defence.

Late Disclosure of TD Bank Records

[76] Mr. Nowack testified that he had disputed that he had all of the TD Bank records. Ms. Weinberg conceded that Mr. Nowack had stated many times that he was missing banking records. Ms. Weinberg indicated that she had asked Mr. Nowack many times to identify the missing records. Certainly the transcripts bear that out. Mr. Nowack testified that he notified the Crown in December 2018 that he was missing 393 pages of TD Bank records. Ms. Weinberg conceded that, in fact, the Crown had not disclosed 393 pages out of the thousands of pages of banking records. She contended that it was obviously a photocopying mistake. The Crown then disclosed the pages.

[77] I do not accept Mr. Nowack’s submission that Ms. Weinberg deliberately withheld the records. There is no evidence to support that submission.

[78] There can be no question that the Crown has a duty to explain the reason for lost or late disclosure. I accept Ms. Weinberg’s explanation that it was obviously a photocopying mistake. It is inevitable that mistakes will be made in large and complex cases, no matter how well organized. The Crown remedied the mistake. I am unable to find that this was a violation of Mr. Nowack’s right to make full answer and defence. He had the missing records prior to trial. Mr. Slansky conducted an effective cross-examination of the Crown’s forensic accountant.

[79] Moreover, the TD Bank records (other than the missing pages) had been disclosed to Mr. Nowack prior to the preliminary inquiry in 2015. As I have repeatedly noted, the defence has a duty to do due diligence. I understand that Mr. Nowack was seriously ill for part of the time between the preliminary inquiry and the trial. He waited, however, until the eve of trial to ask for the missing records. He either didn’t review the disclosure for almost four years, or he strategically waited until the eve of trial to request them.

Late Disclosure Of Wells Fargo Records And The Existence Of An MLAT

[80] The Crown obtained records from Wells Fargo Bank in the United States. The U.S. sent the records to Canada in December 2016. The records were sent to Crown counsel in March of 2017. The records were obtained pursuant to an MLAT request. The Wells Fargo records related to two of the complainants. A draft forensic report incorporating the records was prepared and disclosed in 2017.

[81] Crown counsel agreed to give the defence an opportunity to cross-examine the forensic accountant in a discovery-type process prior to trial. Mr. Nowack stated in submissions that he became aware of the Wells Fargo records during the course of that discovery. In his evidence later on the motion, Mr. Nowack indicated that he first noticed the missing documents when he received the final report in August or September of 2018. In his request of December 18 2018 Mr. Nowack simply stated:

“Upon closer review of the forensic accounting report it is clear to me that I do not have many of the documents referenced in that report.”

[82] In an email dated December 27 2018, Ms. Weinberg asked Mr. Nowack to clarify which documents he was missing. He did not respond.

[83] It is not clear to me when Ms. Weinberg became aware that the Wells Fargo records had not been disclosed, but she did disclose them when she became aware of it. Ms. Weinberg “fell on her sword” as she put it and explained that it was an oversight. She and quite forthrightly and properly took responsibility for the error.

[84] Mr. Nowack alleged that the Crown deliberately withheld the records. He argued that this was yet another example of Crown misconduct.

[85] Again, I disagree. That is another evidence-free allegation. I accept Ms. Weinberg’s explanation. Moreover, Mr. Nowack again failed to do his due diligence. The 2017 draft report indicated that there were transactions involving Wells Fargo. The 2018 report was virtually unchanged. Mr. Nowack told me in submissions that he did not “read draft reports”. Had he done so he likely would have noticed the omission and could have made the appropriate disclosure request more than a year earlier. Moreover, if Crown counsel was deliberately withholding the Wells Fargo records, then she was pointlessly withholding highly incriminating records. The allegation of misconduct makes no sense.

[86] On a more important note, the documents were disclosed prior to the cross-examination of the forensic accountant and the complainants at trial. It was not articulated to me how the late disclosure affected Mr. Nowack’s ability to make full answer and defence. I conclude that it did not.

(b) Did the Crown or the police fail to preserve evidence?

[87] As I have noted, Crown counsel initially disclosed emails between some complainants and police officers. Those emails were relevant to the credibility of the complainants. The Toronto Police email system, however, had an automated archive system. Emails going back beyond a certain time were deleted and could not be recovered. Detective Constable Sandhu testified that when he transferred to the O.P.P. he used an email setting to preserve them. It was fairly clear why Detective Constable Dahan’s older emails were deleted. It was unclear why most of Detective Constable Dandhu’s emails were deleted.

[88] Mr. Slansky argued that the police knew or should have known that the failure to preserve emails was a violation of Stinchcombe. The police were either guilty of gross negligence or a conspiracy to harm Mr. Nowack’s constitutional rights.

[89] I disagree for two reasons: first, the emails are not first-party Stinchcombe disclosure; and second, there is no evidence that the police destroyed any relevant emails.

[90] Mr. Slanksy is obviously correct that the Crown is under a duty to preserve material that is subject to Stinchcombe obligations: R. v. Bero at para. 30; R. v. B.(F.C.), 2000 NSCA 35 at para. 10.

[91] Police emails, however, are not Stinchcombe disclosure. The police and the Crown are two different entities. The police are required to supply the fruits of the investigation to the Crown. The fruits of the investigation include material gathered during the investigation. The police are a third party for other purposes: Jackson at paras. 79-82. Of course, the police were required to preserve emails that reflected on the credibility of the complainants. There were some, and the Crown disclosed them. The fact that the police disclosed emails relating to the credibility of some Crown witnesses shows that they were aware of their duty.

[92] The defence was required to show a reasonable possibility that the deleted emails were relevant: McQuaid at paras. 32-34. The defence was unable to do so. There is no suggestion that the officers failed to keep proper notes. There was nothing in the notes of the officers that would suggest the existence of relevant emails. There is no evidence that the emails contained anything like therapeutic counselling records (R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80); or a 12-year old witness statement that had been destroyed when the police did not lay charges (B.(F.C.); or a car that had not been forensically examined (Bero).

[93] There was also, again, a failure of due diligence by the defence. Mr. Nowack did not ask for emails between the police and the complainants until the eve of the third trial date, more than five years after the charges were laid (and numerous adjournment requests at his instance). The police can hardly be faulted for routinely deleting emails. Moreover, Mr. Nowack began making allegations of improper Crown conduct involving counsel for the complainants in 2015. He raised the issue in a June 2017 judicial pre-trial in this Court. More emails would have been available if he had made the request in a timely manner.

(c) Did the Crown breach Mr. Nowack’s rights by refusing to fulfill a disclosure request in relation to an MLAT request?

[94] On February 24, 2015 the Department of Justice submitted an MLAT Request to the U.K. The request asked for FXCM client profiles, transaction histories, account statements, correspondence, confirmation whether the accounts existed, and other documentation. The request also asked that FXCM search its records for the account numbers provided by Mr. Nowack to the investors or found on seized documents. The U.K. government provided FXCM trading records, account opening documents, and correspondence and affidavits from an FXCM employee.

[95] On March 6 2013 Mr. Nowack forwarded an email to Desi Auciello, one of the investors. The email purportedly came from the email address ad@fxcm.com. The email confirmed that Mr. Nowack had a balance with FXCM of US$146 million in account 00242979. Among the material provided by the U.K. was an affidavit from an employee of FXCM. Indicated that no one at FXCM ever sent an email from ad@fxcm.com to Mr. Nowack. The affidavit also confirmed that Mr. Nowack did not have a trading account with US$146 million or an account 00242979.

[96] On October 10 2017 Mr. Slansky, on behalf of Mr. Nowack, wrote to Crown counsel. He asserted that the affidavit was false. He also asserted that FXCM had hidden or altered records. He noted that financial authorities in the U.S. and U.K. had found serious regulatory violations by FXCM. Those violations, he stated, gave rise to a reasonable prospect that FXCM had altered or hidden relevant records. He asked the Crown to make a further request, investigating the allegations. The Crown refused.

[97] Mr. Slansky argued on the motion that the Crown, he argued, was under an obligation to make further inquiries of the U.K. authorities at Mr. Nowack’s request. That obligation arose when he alerted the Crown to Mr. Nowack’s allegations of wrongdoing by FXCM.

[98] I do not agree. The Crown was under no obligation to make a further MLAT request at Mr. Nowack’s behest. I say that for four reasons.

[99] First, an accused person does not have a “constitutional right to a direct the criminal investigation of which he or she is the target”: R. v. Darwish, 2010 ONCA 124. In any event, if FXCM was, as Mr. Nowack testified, prepared to alter and hide records after a first MLAT, then I am not sure why it would respond to an allegation in a supplementary MLAT.

[100] Second, there is nothing of substance demonstrating that FXCM altered or hid or destroyed records demonstrating Mr. Nowack’s vast profits – other than Mr. Nowack’s testimony. The Crown obviously could not have known that Mr. Nowack was going to testify that he and FXCM had conspired to hide his profits. Moreover, Mr. Slansky cross-examined witnesses about FXCM’s regulatory violations. Mr. Nowack testified about those violations. The jury was aware that FXCM had a history of regulatory problems. The jury was also aware that FXCM was required to cease doing business in the U.S. because of those regulatory violations. Surely that was the key point to be made by the defence.

[101] Third, the defence took no action to obtain the records. There was no attempt to apply for commission evidence or letters rogatory. There is no evidence that Mr. Nowack took steps to obtain the records through a court process in the U.K. or the U.S. There is no evidence that Mr. Nowack ever complained to the police or regulatory authorities in the U.K. or the U.S. that he was the victim of a fraud by FXCM. FXCM provided correspondence from Mr. Nowack. There is no evidence that Mr. Nowack ever wrote or emailed FXCM, asking for his records. There is no evidence that Mr. Nowack ever wrote or emailed FXCM demanding his US$146 million. Mr. Nowack is still using the same email account today. He did not provide any such emails. He did not even suggest that there were any. I understand Mr. Nowack’s position that FXCM could hardly be expected to simply disgorge the true records to him after releasing the allegedly false records. If that is the case then I am not sure what he expected the Crown to do.

[102] Fourth, Mr. Nowack took a very different position in the civil litigation. Mr. Nowack’s draft statement of claim and deposition in the Auciello/Montemarrano litigation indicated that he had lost the funds through trading: 256523 Ontario Inc. v. Nowack, 2013 ONSC 7479 at paras. 16, 18. He made the same concession in the Greenberg litigation: Greenberg v. Nowack, 2015 ONSC 2015 at paras. 1, 2. It is difficult to credit Mr. Nowack’s assertion in this one case when he has made the opposite assertion in the other cases.

(d) Was Mr. Nowack’s right to make full answer and defence impaired?

[103] There was no impairment of Mr. Nowack’s right to make full answer and defence during the trial.

(e) What remedy, if any, should follow?

[104] No remedy is required.

ORDER

[105] The Application is dismissed.

R.F. Goldstein J.

Released: September 17, 2019

[^1]: Some of the investors provided US dollars to Mr. Nowack; some Canadian dollars. The funds were all converted into US dollars and sent to Mr. Nowack’s FXCM accounts in London. This total amount was calculated and converted into Canadian dollars by Lori Toledano, the Crown’s forensic accountant. I accept her calculations as accurate.

[^2]: This amount is combined Canadian and US dollars.