COURT FILE NO.: CR-19-0457 DATE: 20230905

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KATRINA MAE GILMOUR Defendant

Counsel: T. Bobrovitz, for the Crown D. Grenkie, for the Defendant

HEARD: January 30, 31, February 1, 2, 3, March 30, 31, April 13, 14 and June 12, 2023

Lacelle J. (orally)

REASONS FOR DECISION

Introduction

[1] Katrina Gilmour is charged with a number of offences, including fraud and identity theft, following her relationship with Christopher Lariviere between 2014 and 2018.

[2] The Crown alleges that Ms. Gilmour falsely represented herself to the complainant, Christopher Lariviere, and obtained money from him in fraudulent circumstances. Chiefly, this involved telling Mr. Lariviere that she had a brain tumour and required funds for treatment. Ms. Gilmour is also alleged to have asked for money to cover property tax arrears on two properties which she never owned. The Crown also alleges that Ms. Gilmour used information relating to Mr. Lariviere’s identity to obtain accounts at two propane distribution companies, and to obtain a loan in his name. None of this was done with Mr. Lariviere’s knowledge or permission. The Crown has introduced various documents, seemingly sent from accounts associated with Ms. Gilmour, in support of its case. The total loss alleged for the funds given directly to Ms. Gilmour by Mr. Lariviere is $21,900 (for medication and surgery), and $9,372.00 (for arrears relating to two properties). The value of each of the loan and propane obtained by Ms. Gilmour is alleged to be in amounts under $5,000.

[3] Ms. Gilmour denies that she has defrauded Mr. Lariviere or used his identity information without his permission to obtain a loan or propane. While she acknowledges that she received money from him, and that some of this was for medical treatment, she says she had genuine medical issues and Mr. Lariviere offered to help her financially. She denies ever asking him for money. She denies having sent the bulk of the documents Mr. Lariviere claims to have received from Kierra Mullin and denies ever having used that name.

Overview of the Crown’s evidence

The evidence of Christopher Lariviere

[4] Christopher Lariviere testified that he met a person named Kierra Mullin on a dating website called Plenty of Fish. They met in March or April of 2014. Mr. Lariviere understood that Kierra Mullin, who he later came to know also had the name Katrina Gilmour, was separated and single.

[5] At the time, Mr. Lariviere was experiencing significant medical problems related to his service as a police officer in the military, including in Afghanistan. He had various diagnoses, including PTSD. He was also experiencing the stress of a recent separation from his wife, with whom he shared three children. He was seeing a psychologist and a physiotherapist at the time. His psychologist was suggesting to him that he should be open to being more vulnerable with people.

[6] With that advice in mind, Mr. Lariviere discussed his medical and mental health difficulties with Ms. Gilmour. She had medical issues as well and she shared those with him. Mr. Lariviere felt they had a connection.

[7] As for her medical issues, Ms. Gilmour told him that she was diagnosed with a pineal tumour which had been found after she was involved in a severe traffic accident in 2010 when she was hit by an impaired driver.

[8] While the pair met once a few weeks after they started communicating online, the relationship was largely long distance. At this point, Mr. Lariviere felt they were getting to know each other.

[9] Ms. Gilmour told the complainant that she was an investigator with the Ontario Fire Marshal’s office. He recalled she showed him her Linkedin profile at one point (for the name Kierra Mullin), which showed she had an engineering degree from McGill. He believed this to be true, and said at this point, he had no reason not to.

[10] Mr. Lariviere learned that Kierra Mullin was not Ms. Gilmour’s only name fairly early on. He received a call from a person named John Eaton asking what he was doing with his wife Katrina. Mr. Lariviere thought it was a wrong number. After he received this call, Mr. Lariviere said Ms. Gilmour called him and asked him to come to her house, which was some distance away near Prescott, Ontario. She wanted him to get her out of the situation with John.

[11] It was on this evening that Ms. Gilmour told Mr. Lariviere that Kierra Mullin was her biological name, but her mother had given her the name Katrina Gilmour when she was in high school so that her biological father would be unable to find her. Ms. Gilmour told him she wanted him to use the name Kierra because she hated the name Katrina. Consequently, Mr. Lariviere always referred to her as Kierra Mullin.

[12] The relationship continued to progress. In June or July 2014, they introduced their children to one another. Shortly after, Ms. Gilmour told him she was in hospital in Montreal. He understood there were discussions about having to remove her pineal tumour so that she might have any quality of life. Further, there were only two doctors in the United States who could perform such a surgery. The procedure would be expensive (over $100k), and Ms. Gilmour did not have access to money in her bank account. She told Mr. Lariviere this was because the accounts were frozen as a result of her family trying to access her funds. These circumstances played a role in Mr. Lariviere deciding to give Ms. Gilmour the money.

June 5th, 2014 – transfer of $8,600 for surgery in the U.S.

[13] While Ms. Gilmour was, to his understanding, in hospital in Montreal, Mr. Lariviere and Ms. Gilmour were in contact daily by phone or text. Mr. Lariviere says that Ms. Gilmour asked him to help her with funding the surgery. He said he felt obligated because if she didn’t get the surgery, the tumour would grow and she would lose the ability to walk and talk, among other motor skills. He understood that the prognosis was that the pineal tumour could potentially be fatal. He felt like he was her partner at the time so when she asked him for help, he felt obligated to help her. He said he wanted her to get better so they could have a relationship together, and he believed what she told him. He says he did not offer the money, that she asked him to help her.

[14] At the time, money was tight for Mr. Lariviere. He was paying child support. He was a single father with three kids. He had a mortgage and other bills. Nevertheless, on June 5th, 2014 he transferred $8,600.00 to her bank account. This was the first time he gave her money. The transaction is confirmed by his bank statement.

[15] Within a few months, Ms. Gilmour told Mr. Lariviere that she could no longer get the surgery because the doctor had lost his license. She said the money was supposed to be reimbursed, and she would reimburse him, but that never happened.

The Court Settlement – October/November 2014

[16] Mr. Lariviere testified that in the fall of 2014, Ms. Gilmour showed him some documents that related to a court settlement obtained as a result of her accident with the impaired driver. The document indicated that Mr. Lariviere was her spouse and he would be awarded $910,000.00. Mr. Lariviere was not her spouse, nor were they living together at the time.

[17] Mr. Lariviere received this document in an email dated November 6, 2014. When he questioned Ms. Gilmour about it, she said it was a gesture to show she cared about him, and if she didn’t make it, she wanted him to be financially stable. He understood she was giving it to him for having helped her with her medical condition. Mr. Lariviere told her it should go to her son Jacob. He did think she cared about him, however, and they were talking about moving in together.

The money for chemotherapy - $10,000 in March 2015

[18] Ms. Gilmour told Mr. Lariviere that her condition was deteriorating and her tumour was growing. She said she did not have a lot of options. She told him her family doctor referred her to a neurosurgeon in Ottawa who did cutting edge surgery. She told him this was to a Dr. Sinclair.

[19] Ms. Gilmour eventually told Mr. Lariviere that Dr. Sinclair could do a procedure with a tool called the “cyber knife”, but that first she would need aggressive chemotherapy. In an email dated March 18, 2015, she provided him with a document on letterhead from Dr. Sinclair showing a “care plan” for her treatment, which outlined the drugs required. The medication would cost over $10,000 and was not covered by OHIP. Ms. Gilmour again asked for money so she could get this procedure.

[20] Mr. Lariviere testified that he felt compelled to get these funds for her, because she told him that if he did not, she would have to get the funds from another friend, but on the condition that she would reside with him. Consequently, Mr. Lariviere obtained a loan for $10,000 in March of 2015. He transferred those funds to Ms. Gilmour’s account. He said they had a verbal agreement that she would repay the amount in full when she had the funds, but she never repaid it. This transfer is confirmed in his and her bank records.

[21] At this time, Mr. Lariviere understood that Ms. Gilmour’s tumour was getting worse and was starting to affect certain parts of her brain and affecting her motor skills.

More medical bills - $3,300.00 May 22, 2015

[22] Mr. Lariviere testified Ms. Gilmour asked for more funds for medication. Consequently, on May 22, 2015, he withdrew cash as an advance on his Visa card in the amount of $3,300.00 and handed the cash directly to Ms. Gilmour. On this occasion, there was also a verbal agreement that Ms. Gilmour would repay the amount in full.

The tax return preparation – summer 2015

[23] In June or July 2015, Ms. Gilmour assisted Mr. Lariviere with his income tax return. She had offered to assist because he had a lot of medical records and she had experience with claiming medical expenses. She offered to assist him with his 2014 taxes so he could maximize his return. In the course of preparing the return, Mr. Lariviere shared with Ms. Gilmour his social insurance number.

The property arrears – September/October 2015

[24] With respect to the plans to move in together, Mr. Lariviere testified that he and Ms. Gilmour talked about her selling the house on Hwy 2 and moving into another house she owned on Miller Road, where they and their kids would live as a family.

[25] Ms. Gilmour told him she was renting the house on Miller Road. She also told him she owned the house she lived in on Hwy 2. They drove by the house on Miller Road together one day.

[26] Eventually, Ms. Gilmour told him that her mortgage was in arrears and the bank was going to foreclose on the properties she owned. She asked him to pay off the remaining debt for both properties. At some point, in October 2015, she forwarded to him a document from TD Bank dated September 28, 2015, and addressed to Kierra Mullin, showing arrears on both residences.

[27] Consequently, Mr. Lariviere obtained a bank draft or money order on October 21, 2015, in the amount of $4,500.00. He mailed it to TD headquarters, but never heard anything from the bank. He told Ms. Gilmour he had sent the money. He said she was appreciative and told him that the bank had notified her they had received the money order.

[28] Mr. Lariviere said they had a verbal agreement Ms. Gilmour would pay this back in full when she had the funds, but did not specifically discuss when she would have them. He testified he got some small amounts from her, such as a couple hundred dollars on occasion, but he was never paid in full. He also said he could not recall if she told him what she was giving him money for when she repaid him.

2015 and 2016

[29] At some point in 2015, Mr. Lariviere said he was starting to feel like he was “being played” or, being “conned”. But he turned a blind eye to it. He said he had invested so much by trying to help her and he was trying to recoup as much as he could. In the end, he just put himself deeper in debt.

[30] Mr. Lariviere confirmed that he and Ms. Gilmour never moved in.

[31] Mr. Lariviere knew nothing about an application for propane services with Stinson dated December 23, 2016. At the time, he was living in Ottawa and had no need for propane since he was serviced by Ottawa Hydro. He did not give permission to Ms. Gilmour to apply for an account with Stinson listing him as the primary applicant on the account.

[32] As for his circumstances, he testified that 2016 was a difficult year for him. He took a medical leave in March of that year. He had a period where he was immobile, and then was diagnosed with disk and spinal issues which required surgery.

[33] While he was starting to have suspicions about Ms. Gilmour, they remained in communication through this time.

Property arrears - $4872 July 29, 2016

[34] In the summer of 2016, Ms. Gilmour again told Mr. Lariviere that she needed money for arrears relating to her properties. The debt was not yet paid off and foreclosure was being threatened again. On this occasion, Mr. Lariviere took cash from one of his accounts and transferred it to a TD account, from which he transferred it to Ms. Gilmour.

2017

[35] Eventually Mr. Lariviere started “looking into things”. He obtained records which showed that the properties Ms. Gilmour said she owned were registered to other people.

[36] He also determined he should sue Ms. Gilmour civilly to try to recoup his losses. He ended up doing so on two occasions. While he obtained judgment, he never received any money.

[37] Mr. Lariviere testified that he also gave money to Ms. Gilmour at other times for various other things, such as to help her with car payments, tuition for her son’s school, the cremation of her dog, and other bills, such as to her lawyer’s fees for various matters. In total, he estimates he gave her about $75,000.00.

2018

[38] In September of 2018, Mr. Lariviere learned that there was an account in his name with Stinson. He learned this because he received a voice mail from a third-party collection agency. As a result, he contacted Stinson. He eventually learned that he was being sued by Stinson along with Kierra Mullin for approximately $2,000.00.

[39] He confronted Ms. Gilmour about why his name was on the account. She said it was all a big misunderstanding, there had been a “mess up” with Stinson, and the account was supposed to be under her name. He told her he needed to have it fixed because it was affecting his credit. Eventually, after dealing with staff at Stinson, he was removed from the civil claim.

[40] By December 2018, Mr. Lariviere was in touch with police.

[41] Mr. Lariviere was asked why he had continued to assist Ms. Gilmour financially after he started to have suspicions about her. He said that even though he had his doubts, he wanted to believe her. He wanted to recuperate the money he had lost, and it became a vicious cycle. As for why he wanted to believe her, he said that in the course of his therapy, he was trying to be more open and vulnerable with people and he wanted to believe there was “some good out there”.

[42] At some point, Mr. Lariviere tried to access one of the email accounts he believed Ms. Gilmour was using by using a password she had told him about. It worked. In going through emails on that account, he located various documents which he provided to police. The emails contained applications for loans that were declined, communications with Stinson, and an application to Superior Propane in his name.

The breach of privacy from the OR

[43] Mr. Lariviere testified about a document sent to him by Ms. Gilmour allegedly written by Dr. Sinclair. Mr. Lariviere’s ex-wife was a nurse at the Ottawa Civic Hospital who worked in the OR. She had worked with Dr. Sinclair. The letter, which Dr. Sinclair testified he had not written, stated that there had been a breach relating to Ms. Gilmour’s health records which had originated in the OR. The letter suggested the matter was being investigated.

[44] The complainant, Mr. Lariviere, says that Ms. Gilmour used the name Kierra Mullin during their relationship, and, at various points, asked him for money. He says that they had verbal agreements that she would repay him in time.

The Lend Direct loan application – January 18, 2017

[45] Unbeknownst to Mr. Lariviere, an application for a loan from Lend Direct was made in his name on January 18th, 2017. He found the application when going through the email account used by Ms. Gilmour.

[46] The application was made online and accurately provided his social insurance number and date of birth. It listed his employer as the Department of National Defence which was not correct – his employer was the Canadian Armed Forces. The details about when he got paid and how much were also inaccurate. The application also included a copy of his military ID, which he kept in his wallet. It had been his habit when he was home to leave his wallet on a coffee table, the kitchen table, or the dresser in his bedroom, regardless of whether others were around. Mr. Lariviere had not given permission to Ms. Gilmour to obtain this loan in his name.

[47] Ultimately, this loan application did not adversely impact Mr. Lariviere. Once he learned that a third-party collection agency was involved, he understood there was no way for them to collect from him, and he did not follow up with Lend Direct.

The application for an account with Superior Propane – December 12, 2017

[48] Mr. Lariviere also eventually learned that an application had been made in his name for an account with Superior Propane. He also found the application for this account in the email account used by Ms. Gilmour, which contained correspondence with an employee at Superior Propane, Mr. Will Jensen.

[49] At the time the application was made, he was recovering from a second back surgery. He was living in Kanata. He did not authorize Ms. Gilmour to make this application. Contrary to the information provided on the application, Mr. Lariviere was not Ms. Gilmour’s spouse (the name Katrina Gilmour was provided in the part of the form requesting “spouse name”) and he had never referred to her in that way. He did not sign the application.

[50] Eventually Mr. Lariviere had a call with staff at Superior Propane and Ms. Gilmour. Following this, he was advised that the account was paid.

[51] Mr. Lariviere had no further contact with Ms. Gilmour after that.

[52] In cross-examination, Mr. Lariviere denied the suggestion that he had given Ms. Gilmour the name Kierra Mullin because he did not want to give his kids her real name. He disagreed with the suggestion that Ms. Gilmour had never asked him for money, but that he had offered to help her. He denied repeated suggestions he was the author of various emails he had attributed to Ms. Gilmour, or that he had created various documents. He denied he had directed anyone else to send or create these emails or documents. He denied he created one of the email accounts he understood belonged to Kierra Mullin (kierramullin11@gmail.com).

[53] As for Ms. Gilmour’s health condition, he agreed that she had not referred to her condition as cancer. She said she had a pineal tumour. He said she always referred to it as a tumour.

[54] Further, Mr. Lariviere agreed he was present with Ms. Gilmour when she attended for various medical appointments. He did not recall what name was called out for her while they waited in the reception areas.

The evidence of Dr. John Sinclair

[55] Dr. John Sinclair is a neurosurgeon with a specialization in treating brain tumours. Ms. Gilmour was referred to him by her family doctor in relation to her pineal cyst.

[56] Dr. Sinclair testified and confirmed that he saw the accused a single time on September 8, 2014. He confirmed that he concluded that the accused had a pineal cyst which was stable in size and it was of a size which was usually asymptomatic. He explained that he thought some of the symptoms of concern related to other health conditions (for instance, a prior head injury and a possible TIA she had had in the past) and recommended follow-up with another specialist relating to her visual function.

[57] Dr. Sinclair was firm in his evidence that he never told the accused she had a brain tumour. He never told her she required surgery or medication.

[58] Dr. Sinclair also testified that he never prescribed temazolamide to the accused, contrary to the “Plan of Care” in the name of Kierra Mullin the complainant says he received from the accused. Dr. Sinclair further explained that this was a chemotherapy drug used for a particular type of malignant brain tumour, and that it would never be prescribed by a surgeon. It would only be prescribed by a medical oncologist. He confirmed that he did not prepare the “Plan of Care” as this document suggested.

[59] As for the “cyberknife”, Dr. Sinclair explained this was a device that administers high doses of radiation, and that it was predominantly used in treating various cancers. He confirmed that he had never suggested to the accused that she required this treatment, and that it was never indicated for a pineal cyst. He did not agree that there was a different understanding of the way to treat pineal cysts in the United States, or that more of these types of cysts were being removed surgically in that country.

[60] Dr. Sinclair was shown a letter purportedly authored by him. It uses the same format as his letterhead at the Ottawa Hospital. The letter states:

Dear Neera,

Please be advised that my office has taken it on ourselves to report these unfortunate incidents to The Office of the Information and Privacy Commissioner/Ontario (IPC) under the Personal Health Information Protection Act, 2004 (the Act), as well as the Ottawa Police Services as we were not satisfied TOH would conduct an appropriate investigation.

At this stage we are aware that on twelve known occasions our patients [sic] personal health information was illegally accessed and some of that information was used and disclosed without our patients [sic] consent, notably for an illegal purpose. After notifying the hospitals [sic] Chief Privacy Officer a “VIP Flag” was then placed on our patients [sic] file and was again accessed by the same individual another seven times.

It has been confirmed our patients [sic] personal health information has been accessed by an “OR Nurse” employed at the hospital. This individual did not provide health care to the patient at any time. Investigation indicates that the nurse is the estranged wife of our patients [sic] current boyfriend. …

[61] Dr. Sinclair confirmed he did not author this letter. He found its contents “bizarre”.

[62] The Crown additionally called evidence from other individuals. I will not review their evidence here but will reference it further when necessary to explain my reasons.

The evidence of Katrina Gilmour

[63] The accused, Katrina Gilmour, is the mother of two children. She has been with her partner John Eaton since about 2003, although they have had at least one separation. In the years 2012-2014, she and Mr. Eaton were not getting along. It was at the end of this time that she and the complainant developed a friendship.

[64] Ms. Gilmour denied that she and Mr. Lariviere met on Plenty of Fish. At first, she testified that they were introduced by a “mutual friend” on Facebook. She later specified that this friend was her next door neighbour, Pamela Moffatt.

[65] Ms. Gilmour testified that she introduced herself to Mr. Lariviere as Katrina Gilmour. She did not refer to herself as Kierra Mullin and testified that she has never used that name.

[66] As for the relationship with Mr. Lariviere, she says they began to build a friendship. They spoke more than they saw each other. However, he did visit her home on a number of occasions with his children, and she went to his house in Ottawa on a few occasions. They went on other outings together, and he attended various medical appointments with her.

[67] According to Ms. Gilmour, it was Mr. Lariviere who first used the name Kierra Mullin to refer to her. He introduced her to his children this way. She says she didn’t give it a lot of thought when he did that, and she did not say anything in front of the children. Later, she did talk to him about it. She said she didn’t appreciate it. He said he did it to protect her because he was going through a separation with his wife.

[68] Ms. Gilmour testified that she had been in a motor vehicle accident in 2010. She denied that she ever told the complainant it was as a result of a collision with an impaired driver. She said that it occurred when some dogs ran out of a ditch and she lost control of her vehicle. The result, in any case, was that she suffered injury as a result and became involved in a lawsuit. As a result of the lawsuit, she received approximately $300,000.00 between 2012-2014. This was before she met the complainant.

[69] As for her medical injuries, Ms. Gilmour testified she was deemed “catastrophically impaired”. She suffered a brain injury and she was experiencing various symptoms. One of them was that she became forgetful after the accident. She said she can remember better things that happened years ago than what she did yesterday – consequently she keeps a lot of notes to remind herself.

[70] Other evidence in the trial confirms that a pineal cyst was discovered in Ms. Gilmour’s brain following a MRI scan that was done after the accident. Her family doctor referred her to the Montreal Neurological Institute, where she received treatment. In August 2014, her family doctor also referred to a neurologist in Ottawa, Dr. John Sinclair. She saw Dr. Sinclair once on September 8, 2014.

[71] With respect to her treatment at the Montreal Neurological Institute, Ms. Gilmour said that the doctors there referred her to clinics in the United States, including the “Skull Base Institute”. She said that the doctors in Montreal felt that her pineal lesion was contributing to the majority of her symptoms, and they thought that the treatment in the United States would offer a less invasive approach.

[72] In the course of their relationship, Ms. Gilmour agreed that both she and Mr. Lariviere were struggling with health and mental health issues. They confided in each other about these things. She agreed that she made Mr. Lariviere feel comfortable.

The funds for medical treatment

[73] Ms. Gilmour explained that a doctor at the Skull Base Institute was going to remove her pineal cyst, and she began the process to attend there for that. She did not have enough money for the surgery since she had spent the proceeds of her lawsuit already. She denied that she asked Mr. Lariviere for money for this procedure and said that he had offered her money. She said she paid some money to the clinic, but the surgery never went ahead, and the surgeon ended up no longer practicing. She never received her money back as her communications with the clinic went unanswered.

[74] She was also in touch with another clinic in Texas, where a neurosurgeon also recommended the removal of her lesion. She ultimately did not attend for that surgery. She says that while she had scheduled it, she could not “get herself there”.

[75] In cross-examination, it was put to Ms. Gilmour that she had told Mr. Lariviere she needed money for treatment. She said, “I don’t believe so”. She denied telling him she needed cyber knife surgery for a pineal tumour. She said Mr. Lariviere was the one who told her about that when he spoke with his wife regarding the procedure because she worked in the operating room.

[76] Ms. Gilmour denied receiving money from Mr. Lariviere to pay for a surgery or for medication to take prior to surgery. She agreed he did give her about $8,000 on June 5, 2014. When it was suggested to Ms. Gilmour that Mr. Lariviere gave her $10,000 on March 10, 2015, she said “ok, probably”. She said she believed she had to purchase medication recommended by her doctor in Montreal which was not covered by OHIP.

[77] Ms. Gilmour denied receiving a personal care plan from her doctor in Montreal. She said she had never seen the document produced by Mr. Lariviere showing a personal care plan in the name of Kierra Mullin.

[78] Ms. Gilmour agreed that she understood Dr. Sinclair’s opinion following her consultation with him in September 2014 was that she required no further treatment. She agreed he gave no indication that she required brain surgery, or that she would die as a result of her pineal cyst.

[79] As for her language describing her condition, she said she referred to her pineal cyst as a lesion. However, she said her doctors in Montreal and the doctors in the US also referred to it as a tumour. She said she did not believe she had ever referred to is as a tumour.

[80] Ms. Gilmour was confronted with her police statement, where she told Detective Currie “I have a brain tumour but it is not cancer”. She agreed she had referred to it as a tumour then. When it was suggested to her this is what she told Mr. Lariviere, she said he knew “it was a lesion or a cyst or could be classified as a tumour”, since he had spoken with a nurse in the US about it as well as his ex-wife.

[81] It was put to Ms. Gilmour that she had never had a brain tumour. She replied that she had a brain lesion, and that it can be considered a tumour, “it depends on who you talk to”.

The Superior Court document

[82] Ms. Gilmour denied that she changed any documents from her lawsuit to reference a suit between Mullin v. MacDonald. She agreed that the respondent’s name in the allegedly fraudulent document, MacDonald, was the name of the responding party in her motor vehicle accident lawsuit. She said she told the officer during her police statement “I’m not saying that I didn’t [make it], I don’t remember making this particular one” because the officer was not accepting what she was saying. She had been trying to say something else and the officer would speak over her. She said she was trying to explain to the officer how it could have happened, but she did not want that answer.

The property ownership and arrears

[83] Ms. Gilmour confirmed that she had lived at the property on Count Road 2 in Johnstown since March 2007. Jonathan Eaton owned it for most of the time she lived there. She became the owner in June of 2017.

[84] Ms. Gilmour has not owned any other property in the area.

[85] Ms. Gilmour agreed that she and Mr. Lariviere had gone by the house on Miller Road. She said she had never told him she owned it, and she did not know anything about that house.

[86] Ms. Gilmour testified that she had not received the letter from TD Bank indicating money was owing in relation to these properties. She said she never told Mr. Lariviere that she needed the amount of money indicated as owing in the letter.

[87] However, Ms. Gilmour did agree she had received $4872.00 from Mr. Lariviere. She said she did not send an email referring to a “receipt for property tax on Miller Road”. She stated that both Mr. Lariviere and Ms. Moffatt had the password to her email account. She said when she went into her email, this email was not there.

The income tax return

[88] Ms. Gilmour agreed that she had assisted Mr. Lariviere with the preparation of an income tax return, and in particular, the medical expense portion of that return. She denied that she was the one who submitted the return on his behalf. She denied that in the process of assisting with the tax return that she had seen his personal information.

The application to Stinson for propane services

[89] Ms. Gilmour testified that she did not fill out the application to Stinson, but that Mr. Lariviere had done so. She said he did so in her presence, over the phone. He was at her home that day, December 23rd. She was firm that this was the day and that it could not have been the day before. She recalled this was the day because Mr. Lariviere had gone with her to a medical appointment.

[90] When she was confronted with medical records showing that her medical appointment had been the day before, she said that the date on the application was incorrect, and she had made an error about the date of the phone call.

[91] Ms. Gilmour agrees she did receive propane from Stinson after this, and she was paying the bills.

[92] Ms. Gilmour denied that she knew the name Kierra Mullin had been given to Stinson. She agreed she had spoken on the phone with a staff member of Stinson, Ms. Quizi, but said that she did not recall that Ms. Quizi asked to speak to Kierra Mullin. Ms. Gilmour said she had placed the call, not Ms. Quizi, and that she would have identified herself as Katrina Gilmour.

The Lend Direct loan application

[93] Ms. Gilmour denied filing any application for a loan from Lend Direct. She denied ever using Mr. Lariviere’s military ID, or that she had access to it. She said she did not know where he kept it, or where he kept his wallet. She agreed, however, she had stayed overnight in his bedroom.

[94] While a fax cover page referencing the Eaton family was used to send the application, she denied she had faxed the application.

[95] As for the bank records showing that she received $3000.00, she said she believed this was an email transfer that came from Mr. Lariviere.

The Superior Propane application

[96] Ms. Gilmour testified that she applied on her own for an account with Superior Propane. Her credit was not strong enough to support it on her own, and she needed a co-signer. In her examination-in-chief, she testified they sent her the application and she filled it out for herself. She said she believed she sent it on to Mr. Lariviere who was doing military training in Quebec or the Maritimes. She denied sending in the application signed by Mr. Lariviere. She said the account should have been put in both of their names and this was her understanding of what would occur.

[97] In cross-examination, it was put to Ms. Gilmour that in a phone call with Mr. Jensen from Superior Propane, she had stated that she could have her “spouse” co-sign the application, which was not a truthful description of her relationship with Mr. Lariviere. While she initially said that this “was just how it came out” and she hadn’t really given it a lot of thought, she ultimately agreed this was not truthful. During her evidence the next day, Ms. Gilmour said she had looked up the meaning of “spouse” and this was “bad wording” on her part.

[98] While she agreed that she knew that Mr. Lariviere was on a medical leave at the time, she insisted that it was true that Mr. Lariviere was doing military training at the time she sent him the loan application. She was unclear on the details, but she thought he was “in the bush”, in a remote location for at least part of the time. Notwithstanding the remote location, she said he had access to the internet at points, and they spoke on December 12. She also confirmed that her cell phone was the phone number provided in the application she said Mr. Lariviere had sent in. She was not sure why he had done that other than she would be the person at the home getting the services so she would be the one to speak to them.

[99] It was put to Ms. Gilmour that in her police statement, she told the officer that she did not know why she said that Mr. Lariviere was on training. She told the officer Mr. Lariviere had been there for the Stinson application and this one.

[100] Ms. Gilmour also testified that she had sent information to Mr. Jensen about her experience as a victim of identity theft. She agreed, however, that at no time was this discussed in the follow up phone call with Mr. Jensen.

[101] Ms. Gilmour also agreed that she received the propane as a result of this application, and she was changing her service provider which had been Stinson.

[102] As for her evidence that she had understood that the account would be in both their names, it was put to Ms. Gilmour that during her call with Mr. Jensen he had told her that if there was a problem with her credit, they could put the account in her spouse’s name. Ms. Gilmour replied “ok”. It was suggested to her this showed she had knowledge the account would be put into Mr. Lariviere’s name. Ms. Gilmour said she didn’t question when he said this. She agreed she did not say it should be in her name.

[103] With respect to the three-way call with the complainant and staff at Superior Propane, after Mr. Lariviere discovered the account was in his name, Ms. Gilmour was asked if she heard Mr. Lariviere say during the call that the account was fraudulently put in his name. She said she believed she might have been on hold at that point.

The civil claims

[104] Ms. Gilmour agreed that the complainant had sued her civilly and obtained judgment against her.

[105] She said he continued to give her money even after obtaining judgment the first time. She explained that at the time, she was dealing with criminal charges that Mr. Lariviere was aware of. He had recommended a particular lawyer to her. When she could not afford that lawyer, she says he made arrangements with the lawyer for payment.

[106] She says he was her best friend at that point, and she would share what was happening and he would “take care of things” or send an e-transfer to her account. She said they spoke daily and she kept him aware of expenses she had. She said she trusted him. Ultimately, she said he helped her with a number of expenses, including her son’s tuition and having her dog euthanized.

[107] No money has ever been taken from her bank account to satisfy either judgment.

The relationship with Mr. Lariviere in 2018

[108] However, by the fall of 2018 when the complainant went to police, the relationship had become “a bit rocky”. Ms. Gilmour said the complainant would follow her around, as well as her son, and he would show up at her house and peek in the windows. He would call her randomly to see if she accurately reported where she was, which he knew because he was following her. There was one occasion when he asked her how her court appearance went when she had not even realized her case was in court that day.

The letter from Dr. Sinclair and Ms. Gilmour’s views of his opinion

[109] Ms. Gilmour denied she had created the letter in the name of Dr. Sinclair addressed to her family doctor referencing a breach of her medical records by an OR nurse. She said she did not know anything about it. She confirmed that this letter was not included in her medical records when she obtained them at the Ottawa Hospital.

[110] It was put to Ms. Gilmour that she did not like Dr. Sinclair’s assessment of her treatment needs since he said she did not require surgery. She responded that she wanted to stop putting “Band-Aids” on her condition and wanted her life back.

[111] She further testified that Dr. Sinclair said at the time that he did not provide surgery. She said it is only now that doctors are recognizing “these are issues”.

Additional information

[112] Ms. Gilmour testified that while she was living at the residence on County Road 2, she was the victim of an identity theft. She said that she would get notices on her computer that another device was using the same network. She also noticed activity on her credit statement for which she was not responsible. She made a police complaint about four years after she said she had discovered the identity theft. She was ultimately charged with public mischief as a result of that report to police.

[113] Ms. Gilmour also suggested in her evidence that her neighbour, Pamela Moffatt, had a great deal of personal information about her and may have used it to harm her. She explained that she and Ms. Moffatt, who lived next door, had become close after Ms. Moffatt had assisted Ms. Gilmour with insurance claims related to a house fire that had occurred at Ms. Gilmour’s residence. This was before Ms. Gilmour’s car accident. After her accident, they became closer, and Ms. Moffatt became an advocate for Ms. Gilmour. She helped her attend medical appointments and with legal appointments. She had access to most of the documents from the court process following the accident, including letters Ms. Gilmour had received from the public guardian relating to her son Jacob, and orders from the Superior Court.

[114] Ms. Gilmour stated that Ms. Moffatt treated her as a daughter, and she thought of Ms. Moffatt as a mother figure or big sister. Ms. Moffatt was her emergency contact. She also had a key to her mailbox and her house.

[115] According to Ms. Gilmour, Ms. Moffatt had some kind of relationship with the complainant. She said she knew they had communicated on a few occasions, and Ms. Moffatt sent her some photos of Mr. Lariviere at some point. She saw them talking on the phone together the day that Ms. Lariviere came to her house after Mr. Eaton had called him. Unlike Mr. Lariviere, Ms. Gilmour also testified that Ms. Moffatt was present for their first in person meeting at a Pet Smart in Ottawa.

[116] Ms. Gilmour testified that her father-in-law told her that Ms. Moffatt was recently deceased. She also confirmed that Ms. Moffatt had given her money. She estimated Ms. Moffatt had given her around $30-$35,000.00. Ms. Gilmour said she had fully intended to return it all.

[117] Ms. Gilmour denied sending emails under the name Kierra Mullin. She denied that she had ever seen various documents tendered in evidence by the Crown before commencing this case, including the application to Stinson for propane.

[118] Ms. Gilmour denied using an email address with the name Kierra Mullin, or having worked at the Fire Marshal’s office. She testified that in fact, she had assisted the complainant with an application for a position with that office and identified a curriculum vitae she said she helped him prepare.

[119] As for the various sums of money at issue in this trial, Ms. Gilmour says that in every instance, Mr. Lariviere offered to give her the money. He did so knowing that she had a claim in the courts but was not in a position to pay him back immediately. She said he was “fine” with her returning what he gave to her as she could afford to do so. She categorically denied ever asking him for money. She also agreed that she knew that he was applying for loans to help her financially.

[120] When she was asked if she kept track of the money Mr. Lariviere gave her, she said “In my head, but not thoroughly”.

Ms. Gilmour’s criminal record

[121] Ms. Gilmour has a criminal record with a number of convictions between 2004 and 2021. The convictions are for fraud under $5,000 (x4), fraud over $5,000 (x2), forgery, an offence relating to use of a credit card, false pretences, and failing to comply with court orders (x4). The convictions from 2021 are under appeal, and the sentence for those offences has been varied by the Court of Appeal pending the disposition on the conviction appeal.

The legal principles

[122] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. That burden never shifts. An accused person is not required to prove his or her innocence. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[123] In a case like this, where the accused has testified, the case of R. v. W.D., [1991] 1 S.C.R. 742 directs the court in its approach to the evidence. The W.D. test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown: R. v. Smith, 2020 ONCA 782 at para. 11. In summary, it tells me that if I believe the accused’s evidence, or it leaves me with a reasonable doubt after I have considered it in the context of all the evidence, she must be acquitted. In a case like this, my assessments of the credibility and reliability of a witness’s evidence are particularly important.

[124] It is important to note, however, that in deciding a case, a judge is not simply comparing each account and deciding which account to believe. Trials are not credibility contests where the more credible witness’s account necessarily carries the day. It is also important to note that a judge can believe a witness but still be left with a reasonable doubt about what happened after considering all of the evidence. As has been noted by our Court of Appeal, “a reasonable doubt can survive a finding that [a] complainant is credible”: R. v. T.A., 2020 ONCA 783 at para. 29.

[125] Further, even if a judge disbelieves the evidence given by an accused person, or is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proved its case. A judge must always determine whether the Crown has proved each element of every offence charged beyond a reasonable doubt. This will only happen when there is evidence that the judge accepts that supports each element the Crown is required to prove.

[126] As for what is meant by “reasonable doubt”, it is not an imaginary, far-fetched or frivolous doubt, and it must not be based upon sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Bryce at paras. 13-20. Probable or likely guilt is not sufficient to meet the standard in a criminal trial. But the burden of proof is also not impossibly high. The Crown is not required to prove its case to an absolute certainty.

[127] If at the end of the case a judge concludes only that the accused is likely or probably guilty, the accused must be acquitted. Before an accused may be found guilty, and face the consequences of a conviction, a judge must be sure that he or she committed the offence charged (see D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; and R. v. Lifchus, [1997] 3 S.C.R. 320 at paras. 36-40).

Circumstantial evidence

[128] Where the case for the Crown is based on circumstantial evidence, the Crown must prove beyond a reasonable doubt that the accused’s guilt is the only reasonable conclusion that can be drawn from the whole of the evidence.

[129] A trier of fact must guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences and be vigilant about the path of reasoning involved in drawing inferences from circumstantial evidence. An inference of guilt drawn from circumstantial evidence must be the only reasonable inference that such evidence permits. The inferences that may be drawn from any set of facts must be considered in light of all the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: R. v. Villaroman, 2016 SCC 33 at paras. 29-30.

[130] It is important to confirm that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. To hold otherwise would reverse the burden of proof. As explained in Villaroman, “[t]he issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: para. 36. Accordingly, an alternative theory to guilt is not “speculative” only because it arises from a lack of evidence: Villaroman at para. 36, R. v. S.B., 2018 ONCA 807 at para. 131.

[131] As further directed in Villaroman at paras. 37-38:

[w]hen assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt … I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” … “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [citations omitted, emphasis in original]

[132] Ultimately, circumstantial evidence does not have to “totally exclude other conceivable inferences”: Villaroman at para. 42, S.B. at para. 153. Further, alternative inferences must be reasonable, not just possible: Villaroman at para. 42.

The positions of the parties

The Crown

[133] The Crown submits it has proved its case beyond a reasonable doubt, including that the accused had a subjective intent to defraud the complainant. The Crown says the evidence shows that prior to meeting the complainant, the accused had spent a significant sum of money received in a settlement of a lawsuit. Having spent all that money, she deliberately sought to get money from the complainant on a fraudulent basis in order to support her lifestyle.

[134] Counsel argues that broadly speaking, the complainant was shown to be reliable in his memory of events from years ago. Various records support a finding that he is both credible and reliable.

[135] The Crown says that the accused, on the other hand, should not be believed. Nor should her evidence raise a reasonable doubt. It is inconsistent with other evidence that the court should accept, including bank records showing that she received and sent money in the name of Kierra Mullin. Her evidence is also inconsistent with parts of her statement to Detective Currie. She also testifies with a criminal record for fraud, which should be given some weight in assessing the accused’s credibility. The Crown is careful to clarify that it is not seeking to rely on that record to show that the accused has a specific propensity to commit that offence.

[136] The evidence of Dr. Sinclair demonstrates that the accused was diagnosed with a pineal cyst and she never had any reason to think she would need medication or surgery because of it. He never told her he had a tumour. He never prescribed medication for her. The Crown submits that the accused created a “care plan” in the name of Dr. Sinclair showing she needed treatment so she could convince the complainant to give her money.

[137] The Crown alleges that the accused created the forged document from the Superior Court as a way to make the complainant believe that she cared about him enough to share this money with him. This also would convince the complainant that she had the means to pay him back, which permitted her to further her fraudulent scheme.

[138] The Crown says it makes no sense that this entire narrative is a fabrication by the complainant. The bank records show that the accused received money from him, some of which he obtained by borrowing on his credit card. It makes no sense that he would obtain high interest loans as part of a fabrication targeting the accused. None of what has transpired has been in the complainant’s interest to fabricate.

The defence

[139] The defence submits that the Crown has not proved its case beyond a reasonable doubt for a number of reasons and reminds the court that the accused does not bear the onus of proof in this case. This is a circumstantial case and the directions in R. v. Villaroman apply, in addition to those from R. v. W.D.

[140] Counsel points to what he says are frailties in the complainant’s evidence, such as the fact that he says he saw the accused using OHIP cards in two names, but OHIP records show only one card was issued to her in the name of Katrina Gilmour. He also highlights the language used by the complainant in his civil suit since he refers to having given the accused a loan, which is not the same thing as criminal fraud.

[141] Counsel argues that the court must carefully assess what weight can be given to the accused’s comments in her statement to police, since the statement devolved into a shouting match and was very confusing. He submits that this led the accused to say things that were not true - she corrected those statements in her evidence before me.

[142] With respect to the fraud counts, counsel submits that the Crown has not proved that the accused had any intent to defraud the complainant. The court should accept the accused’s account, or at least have a reasonable doubt given her account that she was offered the money by the complainant and always intended to pay him back. The defence argues that the bank records relied upon by the Crown showing that money transfers were sent and received from the accused’s account in the name of “Kierra Mullin” are incomplete in their descriptions and it is not clear what they signify. Accordingly these records are of no assistance to the Crown in proving the case.

[143] As for the forgery allegations, the defence emphasizes that the documents the accused is said to have forged were all obtained through Mr. Lariviere. He very well could have doctored those documents or fabricated them entirely.

[144] As for the applications to obtain fuel in the complainant’s name, the defence says that this was done with the complainant’s consent and/or participation.

[145] With respect to the Lend Direct loan, counsel points out that it is not clear where the money went. He queries whether the complainant made the application in a set up of the accused because he was angry that his relationship with her hand ended. The defence says that at no time did the accused use the complainant’s personal information for her benefit and she has committed no offence whatsoever.

[146] Ultimately, the defence says the Crown has not proved either that the accused committed the actus reus for any of the offences charged, nor that she had the mens rea for those offences.

Analysis

[147] There is no particular formula that must be adopted in the assessments of credibility and reliability of the witnesses who have testified. I commence my analysis with my comments and findings in respect of the accused’s testimony.

The evidence of the accused

[148] I do not believe the evidence of the accused. This is because: her evidence was contradicted by other evidence which I accept; there were contradictions in her evidence internally, and compared to what she told Detective Currie in her police statement; and her evidence, at times, strains credulity and makes little sense.

[149] Some specific examples of each of these types of problems with her evidence will suffice to explain my conclusion.

[150] For instance, the accused denies that she ever used the name Kierra Mullin. She says the complainant made up the name to introduce her to his children. However, the accused’s bank records clearly show that money was transferred from the accused’s account in the name of Katrina Gilmour to the complainant. The bank records show that the email account kierramullin11@gmail.com was used to send money to the complainant Exh 1, Book 3, Tab 6, p. 302) and receive money from him (Exh 1, Book 3, Tab 6, p. 351). They also show that she received money sent to that same email account from at least one other individual (Exh 1, Book 3, Tab 6, p. 305). The independent evidence of the bank records strongly supports the account given by the complainant, and also strongly undermines the account given by the accused. I do not believe her when she says she did not create the name “Kierra Mullin” or emails associated with that name. While the defence suggests the bank records are unclear, I disagree. They clearly show money sent from the accused’s account in the name of Kierra Mullin.

[151] Sometimes Ms. Gilmour’s evidence was baldly contradictory to the evidence given by other witnesses. For instance, Ms. Quizi, a senior account administrator and credit manager employed for a number of years with Stinson, testified that she telephoned Kierra Mullin at the phone number associated with the account. There is no doubt Ms. Quizi spoke with the accused, since the accused recalls the phone call and also testified about it. Ms. Gilmour says she was the one who placed the call to Stinson and she would have identified herself as Katrina Gilmour. However, Ms. Quizi testified that she placed the call to the phone number associated with the application and asked for Kierra Mullin. Ms. Quizi spoke with a person who agreed she would pass along the message to the owners. The person who agreed to pass along the message identified herself as Katrina Gilmour.

[152] Ms. Quizi’s account makes sense. She had a reason to be placing the call, since the account was past due. Ms. Quizi also has no interest in this prosecution, and I have no reason to think she is not reliable in her recollections. She said she noted who she was speaking with, and I believe her. Ms. Quizi gave every indication of complete competence when she testified, and I believe she would have been careful to note who she was speaking with when making a call of this kind. Considered alongside Ms. Quizi’s evidence, I do not believe Ms. Gilmour was telling me the truth about this phone call. I accept the evidence that Ms. Quizi spoke with the accused at the phone number where she believed she would reach Kierra Mullin.

[153] It is also clear, since it was tape recorded and played in court, that Ms. Gilmour described the complainant as her spouse during her conversation with Mr. Jensen when she was applying for an account with Superior Propane. The complainant had never been her spouse. At first, Ms. Gilmour denied that she was being untruthful when she described the complainant this way in the phone call with Mr. Jensen. She said this was “just how it came out”. This testimony is unbelievable. The day after giving that testimony, when she returned to court to testify, the accused said she looked up the meaning of “spouse” and this was bad wording on her part. She then agreed with Crown counsel that the description of the complainant as her spouse was not truthful.

[154] The accused presents as an intelligent and capable person. I do not believe that when she was speaking with Mr. Jensen she just blurted out the word spouse to describe her relationship with the complainant, or that she was ever confused about what that word meant. I find she understood the words when she used it with Mr. Jensen and she was deliberately misleading him. As I will further explain later in these reasons, I find the accused deliberately described the complainant as her spouse to assist her in securing an account for propane services.

[155] Another point relating to the accused’s interactions with Mr. Jensen is worth mentioning. The accused says she sent information to Mr. Jensen showing she had been the victim of an identity theft. Mr. Jensen did not recall receiving any documents relating to this issue. I do not believe any were sent by the accused, contrary to her testimony. If they had been, there is every reason to think they would have been discussed at some point in a subsequent call, and they clearly were not. Given that the accused says she only went to police four years after this alleged theft, and she acknowledges she was ultimately charged with public mischief in relation to her complaint, I have doubts that she was the victim of an identity theft at all. The important and material point is that I do not believe she ever sent any documents suggesting that she was the victim of an identity theft to Mr. Jensen.

[156] As I have said, I also reject the accused’s evidence because I find that some material parts of it made no sense. For instance, when she was asked if she kept track of the money that the complainant had sent her, she said “In my head, but not thoroughly”. This is a convenient answer and I do not believe it. The accused spoke of keeping notes of various things because of memory problems associated with her car accident. The account she gave in her evidence was also supported by various documents, which on its face, suggests she was concerned about record keeping. If she had ever intended to pay the complainant back, as she said she did, surely she would have kept records of what he gave her. I do not believe she was ever keeping track of the money given to her.

[157] Her narrative about the complainant’s involvement in the application to Superior Propane also defies belief. First, there is the problem that the complainant testified that at the time the application was made, he was recovering in Ottawa from back surgery. In her testimony, the accused agreed that she knew the complainant was on medical leave at the time. Even so, she also testified that at the time she was applying to Superior Propane with the complainant’s consent and knowledge, the complainant was in the bush in the Maritimes somewhere on a military training exercise. She could not say where it was, or what kind of training it was. She just believed it was “something with the military”. She testified that even when he was on a medical leave, the complainant was “still doing stuff with the military”. She said she was positive that he was away, in any event.

[158] The testimony about the complainant being on a medical leave and also out doing military exercises in the bush is hard to believe. What is even more incredible is the accused’s testimony that while in a remote location for military training, where she says she knew he had shot a moose, the complainant was also able to access the technology and internet services required to send the documents required to set up the account for propane services. The accused’s testimony makes no sense and I reject it.

[159] There are also some important differences between what the accused told Detective Currie and what she said in court. Returning to the story about the complainant being on a training exercise when the Superior Propane application was made, after initially telling Detective Currie the complainant had been training, she said he had, in fact, been present when the application was made. She told Detective Currie she did not know why she said the complainant was on training (at pp. 91-94 of the transcript). I do not believe any version of her account of this event.

[160] Finally, during the police interview, the accused agreed with Detective Currie that the document from the Superior Court of Justice assigning funds to the complainant was a fake document. She repeatedly told Detective Currie that while she had fabricated another document like this one, she did not remember creating the document involving the complainant (at pages 75-80 of the transcript). In court, she denied that she created the document. This discrepancy in the account given by the accused, while more modest than others, still weighs in the analysis.

[161] In assessing the accused’s credibility, her criminal record for dishonesty is also relevant. While I would reject her evidence regardless of whether she had prior convictions for offences of dishonesty, her criminal record for such offences further undermines her credibility.

[162] In short, I do not believe that the accused was trying to tell me the truth about her dealings with the complainant when she testified. I reject her evidence where it is contradicted by other witnesses or records.

The complainant’s credibility and reliability

[163] The complainant, Mr. Lariviere, was credible and reliable as a whole. He had detailed recollections of events from some years ago. He was forthright in his evidence, and he gave it without embellishment or any hint of animosity towards the accused. The documentary evidence also supports his account in important ways. As I have said, the critical point that the accused used the name Kierra Mullin and email accounts associated with that name is supported by the banking records. I believe the complainant’s account that it was the accused who asked him to use this name and that this is how he referred to her.

[164] The complainant’s account was also not shown to be inconsistent in any important way. I take a different view of the evidence than the defence, as I will explain.

[165] The defence argues that there are various inconsistencies in the complainant’s evidence. He says that the complainant was inconsistent about:

a. Whether he had anything to do with the Fire Marshal’s office; b. Whether he was “in hospital” in 2017 or only had day surgery; c. Whether anyone had access to his wallet, which I understand the defence to argue cannot be reconciled with his evidence that he sometimes left it on a table in his home.

[166] I do not view the last two of these points as demonstrating any real inconsistency. None of these issues relates to a material point of fact in any event.

[167] The defence also emphasizes that the complainant referred to the money he gave the accused as a loan, which is different than a criminal fraud. The defence also suggests that the complainant may have had a motive to fabricate his account involving the accused, and that he could be the person who fabricated various documents said to have been forged by the accused.

[168] I do not view the complainant’s characterization of his dealings with the accused in the civil suit as fundamentally different from his account before me. It was always his understanding when he gave the money to the accused that she would pay him back. That this same conduct became the subject of criminal charges was a decision made by the police based on the totality of their investigation and information about the accused. The complainant has not given a fundamentally different account of what occurred.

[169] As for the idea that the complainant had a motive to fabricate this elaborate scheme to implicate the accused, I can see no reason why he would do so. I cannot see how this serves any of his interests. The theory also makes no sense. For instance, it makes no sense that the complainant was responsible for applications for propane, which he did not need, and which was delivered to and paid for by the accused. I accept that it was only when her payments became past due that the complainant became aware that these accounts had been opened at all. It makes no sense that he would apply for a loan from Loan Direct and direct the funds to the accused. It makes no sense that he would alter a Superior Court document with so much similarity to a legitimate document sent to the accused. It makes no sense that in his elaborate scheme, the complainant was also able to ensure the banking records from the accused’s account were somehow doctored to show money sent to and from Kierra Mullin. I do not believe the complainant is the malicious author of a campaign against the accused to falsely implicate her in a criminal fraud. I believe the complainant when he says he had cared deeply for the accused, and he was very slow to realize that he was being duped.

[170] Finally, the defence argues that the complainant’s evidence about seeing the accused using two different OHIP cards is clearly false, and undermines his credibility, since the OHIP records show there was only one card, and it was in the name of Katrina Gilmour. I am not sure what the complainant saw, and I accept that OHIP records show only one card. In any case, I do not believe the complainant was being deliberately untruthful about this. Further, given the overwhelming weight of the remaining evidence, this anomaly in the evidence does not cause me to have a reasonable doubt about the complainant’s credibility or reliability.

Analysis of individual counts

[171] The Crown does not seek convictions on counts 4, 7 and 9, for reasons that were canvassed during closing submissions.

[172] Accordingly, I consider whether the Crown has proved every element of the offences outlined in the remaining counts. As I have had occasion to review the law that applies to those offences elsewhere: see R. v. Saucier, 2018 ONSC 7266 at paras. 23-58. I do not repeat a summary of the law for each type of offence charged.

Count 1 – fraud over $5000 ($21,900)

[173] The Crown alleges that the accused defrauded the complainant of $21,900 by telling him she had a pineal brain tumour and that she required money for surgery and medication. The conduct is alleged to have occurred between 4 June 2014 and May 23, 2015.

[174] The accused’s bank records, and in particular her joint account with her spouse John Eaton, show that the accused received money in the amounts the complainant said he sent her on each of June 5, 2014 ($8,606) and March 10, 2015 ($10,000). There are also banking records for the complainant that confirm he sent those sums from his account. The complainant also has a bank record showing a cash advance on his Visa Card for $3,300. I believe the complainant’s evidence that he gave that money to the accused. I find the total sum given to the accused by the complainant, and received by her, was $21,906. The amount of the fraud alleged in the indictment is rounded down to $21,900.

[175] I also find that in terms of the accused’s medical condition, she was never told by Dr. Sinclair that she had a tumour, nor that she required medication or surgery. I accept Dr. Sinclair’s evidence about his opinions and what he told the accused. I also find that the accused would have understood this clear opinion. This was not a complicated diagnosis and there was virtually no basis to misunderstand or be confused about the opinion expressed by Dr. Sinclair. There is no independent admissible evidence that shows the accused ever received a legitimate medical opinion contrary to that of Dr. Sinclair.

[176] I find that the accused deliberately spun the fact that she had a pineal cyst into a basis for telling the complainant she had a tumour and required medication and surgery which she could not afford. I find that she deliberately portrayed her quality of life to be at risk if she did not get the surgery and medication she said she needed. I am satisfied that she did so knowing that this was not true.

[177] I further find that the accused told the complainant this false narrative, knowing it was not true, in order to convince him to give her money. I believe the complainant’s account that the accused asked him for money and that he gave it to her, on the understanding she would pay it back, because he felt he had to help her. I believe him when he says that the accused also told him that if he did not give her the money, she would be forced to move in with a former boyfriend on condition that he give her the money. I do not believe the accused’s evidence that she never asked for money and the complainant offered it all, nor does her account on this or any other issue leave with me a reasonable doubt.

[178] That the accused has never repaid any of the money the accused gave her demonstrates her intention when she received it. I do not believe that she received these funds as a loan, fully intending to pay them back. As I have said, there was no basis for the loan. I highly doubt there were any doctors in the US who were suggesting they would perform surgery. I am satisfied that the accused wanted the money for her own purposes.

[179] Nor was it the accused’s intention to treat this as a loan. The evidence that she had spent hundreds of thousands of dollars from her motor vehicle settlement even before meeting the complainant shows that the accused had serious issues with financial management. While I do not have evidence about how the accused actually spent the money she received from the complainant, I am satisfied that it was never used to support medication or surgery costs. I find the accused received the money and intended to spend it on things she never discussed with the complainant. I find that she convinced the complainant to give her money fully aware that was creating a risk of deprivation for the complainant.

[180] In relation to the facts underlying this count, I also believe the complainant when he says the accused presented him with a “Personal Care Plan”, in the name of Kierra Mullin, outlining medication she would require. I find that this document was not legitimate. It indicates it is a prescription by Dr. Sinclair, who has confirmed he never prescribed this medication for the accused. I find that the accused created this elaborate document as part of her effort to convince the complainant she needed money for treatment. Taking such an elaborate step to obtain money from the complainant fully demonstrates that the accused had the mens rea for this offence.

[181] I am also satisfied that the letter allegedly sent by Dr. Sinclair to the accused’s family doctor is a fabrication. The contents of the letter are bizarre, and Dr. Sinclair is firm that he did not write it. I am satisfied that the accused was the author of that fabricated letter. On the totality of the evidence, she is the only person with any reason to have created it. I reject the idea that the complainant somehow produced this letter to police as part of a scheme to frame the accused. I do not believe the accused’s evidence that she did not know anything about this letter and that she did not create it, nor does her evidence leave me with a reasonable doubt about this fact.

[182] In respect of both documents, I am satisfied that the accused fabricated them in furtherance of maintaining her identity of Kierra Mullin and permitting her to continue her fraudulent scheme by lending what appeared to be documentary support for her narrative.

[183] I find that the Crown has proved beyond a reasonable doubt all elements of the offence. It has proved both the actus reus and mens rea for fraud in the amount of $21,900. The accused will be found guilty on count 1.

Count 2 – forgery of a Superior Court of Justice Document

[184] I accept the complainant’s account of how he came to receive this document from the accused. His account is supported by emails sent to him in the name of Kierra Mullin, including a message purportedly from a lawyer about when the funds might be available. I accept that the complainant did receive these emails from the accused just as he described.

[185] I do not believe the accused’s denial that she knew nothing about this document, or anything else she said about it during her police interview. Nor does her account leave me with a reasonable doubt given the totality of the evidence.

[186] Based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that the accused fabricated this document. The document mirrors a legitimate document that was issued to her as a result of her motor vehicle lawsuit. I can see no reason why the complainant or someone else would forge this document. On the other hand, the accused had reason to do so. This is because the implication of the document was that the complainant cared deeply about the complainant and he would someday get the money back that he was giving to the accused. She is the only person who had reason to create the document, she was in possession of a very similar legitimate document, and I find she fabricated this document to further her fraudulent scheme involving the complainant.

Count 3 – fraud on Stinson of $1089.52

[187] I accept the evidence of each of the complainant and Ms. Quizi as it relates to this count. This includes Ms. Quizi’s account of the date the application for propane services was made.

[188] This becomes an important point because the accused testified about how the application was made on December 23rd, 2016. She said the complainant applied for the application over the phone while in her presence. She said this was the same day the complainant had accompanied her to a medical appointment. She was absolutely firm about this date, until she was confronted with evidence that her medical appointment had been the day before. At that point, she changed her evidence. I do not believe her evidence at all.

[189] As I have already explained, I do not believe that she placed the phone call when she spoke with Ms. Quizi. I accept Ms. Quizi’s evidence that she called the number associated with the account and spoke with Katrina Gilmour.

[190] The evidence on this count is overwhelming that Ms. Gilmour obtained propane services from Stinson, which were delivered to her home. I accept that she did so having listed the complainant as an applicant. I find that she did so to benefit from his credit, so she could secure propane.

[191] The notion that the complainant or someone else was behind this is ridiculous. The complainant did not need propane, but the accused did. The co-applicant listed was Kierra Mullin, a name I find the accused created and used. The contact information for the account was all hers – an email in the name of Kierra Mullin and the accused’s phone number. The accused further agrees she was paying bills from Stinson for a time.

[192] Ultimately, the accused received propane and services from Stinson valued at $1089.52 which was never paid. I am satisfied beyond a reasonable doubt that the accused fraudulently obtained those services because she falsely listed the complainant as an applicant. But for her act in doing so, she would not have been able to secure propane for herself given her credit history. I am satisfied as well that the accused knew when she made this fraudulent application she was putting Stinson at risk of deprivation. Since the sum of $1089.52 had never been repaid, Stinson was forced to obtain a civil judgment against the accused.

[193] I do not believe the evidence of the accused as it relates to this count, nor does it leave me with a reasonable doubt. I am satisfied beyond a reasonable doubt that the Crown has proved all elements of this offence and there is no alternative explanation for the evidence apart from the accused’s guilt. The accused will be convicted on count 3.

Count 5 – fraud on the complainant of $9372.00

[194] The allegation in this count is that the accused told the complainant she was going to lose two residences as a result of unpaid property tax and mortgage arrears. Because the complainant believed this to be true, he gave the accused money totaling $9372.00.

[195] I accept the complainant’s evidence that the accused told him she owned the house she lived in on Highway 2, and another property on Miller Road. The evidence also clearly shows that the accused never owned either property, nor did she have a mortgage at TD associated with either. I also believe the complainant that in October 2015, the accused forwarded to him a document from the TD Bank addressed to Kierra Mullin which showed arrears on both residences. This account is supported by a copy of the document the complainant received. I further believe the complainant’s testimony that he mailed a bank draft in the amount of $4,500 to the headquarters from TD Bank, and that the accused reported to him that the bank had received it and she was appreciative. The complainant’s account is also supported by a copy of the money order he sent, which references the account number given in the TD Bank letter. I accept the complainant’s evidence that he borrowed money on a credit card to get this money, and that there was a verbal agreement that the accused would pay him back. I further accept that only some of the money was paid back.

[196] I also accept the complainant’s evidence that the accused again approached him for money in relation to her properties in the summer of 2016. She told him that foreclosure was being threatened. I accept that the complainant transferred $4872 to the accused on July 29, 2016.

[197] Ms. Gilmour agrees that she and the complainant had gone by the house on Miller Road, as he described, but she denied saying she owned it. She also acknowledged receiving $4872.00 from the complainant but denied sending an email to him referring to a “receipt for property tax on Miller Road”. I do not believe the accused’s denials that she told the complainant she owned the property on Miller Road, or her denial she sent the email to the complainant referring to a receipt for the property taxes on Miller Road.

[198] Again here, the idea that the complainant or anyone else was behind this scheme is ridiculous. It was Ms. Gilmour who received at least $4872 as a result, while the complainant lost over $9000. I can see no reason for the complainant or anyone else to have gone to the lengths of creating false documents in support of the narrative the complainant has given. On the other hand, it makes a great deal of sense that the accused would do so, since her claim that the properties were in arrears appeared legitimate with this documentation. The document was also addressed to Kierra Mullin, a name created by the accused. The creation of this document allowed her to further the fraud.

[199] I am satisfied beyond a reasonable doubt that the complainant would not have given the money to the accused but for her fraudulent account about the two properties being in arrears and the manufactured threat of foreclosure. I find that the accused knowingly spun this false narrative for the express purpose of getting money from the complainant. I further find that she did so knowing that she was putting the complainant at risk of deprivation and that she never paid back the full sum he gave to her. While it is not clear what has become of the $4500 first sent by the complainant, I am satisfied that he has been deprived of this amount and that this occurred as a result of the fraudulent acts of the accused.

[200] The Crown has proved all elements of this offence and the accused will be found guilty of count 5.

Count 6 – fraud on Lend Direct in the amount of $4710.11

[201] As explained by a former employee, Mr. Kulneet Singh, Lend Direct was a company that lent money to people with limited lending options. The allegation in relation to this count is that the accused applied for a loan with Lend Direct using the complainant’s name and that she did so without his knowledge or permission.

[202] As I have reviewed, the complainant testified that he did not know anything about this application. He learned about it only after going through the accused’s email account.

[203] There is no real issue that the application was made using the complainant’s name, social insurance number, and date of birth. It listed details about his employer which were not accurate. The same occurred with his stated income – the figures were not accurate. The application also included a copy of the complainant’s military ID, which he kept in his wallet. Tellingly, the copy of the military ID was faxed with a cover sheet indicating in the “from” line that it was from “EatonFamily”. As I have reviewed, the accused’s spouse was Jonathan Eaton. She shared two children with him.

[204] The accused denies having been involved in this. Again here, I reject her evidence and find that when considered with the totality of the evidence, it does not leave me with a reasonable doubt.

[205] First, contrary to the accused’s denial, her bank records show she received a $3000 transfer on the date the loan was approved by Lend Direct (January 19, 2017), which was the same date the fax was sent from “EatonFamily”. The Lend Direct loan funds were sent by email transfer. Given this, the suggestion that anyone else was responsible for the loan application makes no sense at all. By the time this application was made in 2017, the accused had some knowledge about the complainant’s circumstances, and she had been in a position to obtain his social insurance number and military ID. This is because she had helped him prepared his income tax return, and she had stayed overnight at the complainant’s residence on occasion, where the complainant’s wallet was sometimes left out. The fact that the application details provided were inaccurate suggests it was someone other than the complainant filling it in. The idea that the complainant was framing the accused by falsely filling out a loan application that would result in the accused receiving $3000 makes no sense.

[206] I reject the accused’s evidence. I believe the evidence of the complainant. I find that the accused knowingly used the complainant’s identity information to apply for a loan without his permission and consent. The fact that Lend Direct sold the debt supports the inference that it had not been repaid.

[207] In these circumstances, I am satisfied beyond a reasonable doubt that the Crown has proved all elements of this offence. However, the evidence is not clear enough to prove that the total loss to Lend Direct was $4170.11, as was specified in the indictment. I find the amount proven is $3000. On this basis, the accused is found guilty on count 6.

Count 8 – making a false document – the application to Superior Propane

[208] The allegation on this count is that the accused made a false document because she applied for an account with Superior Propane using the complainant’s information without his knowledge or consent. The Crown alleges that the accused did this because she could not pass a credit check on her own.

[209] I do not believe the accused’s account of what transpired in relation to this account application, nor does her account raise a reasonable doubt in the context of the totality of the evidence.

[210] As I have already reviewed in relation to the accused’s evidence about these allegations, the accused falsely told the Superior Propane employee taking the application (Mr. Will Jensen) that the complainant was her spouse. This was not true. The clear inference, which I make, is that the accused made this representation knowing it was not true because it assisted her in obtaining the account. I agree with the Crown’s submission that the accused told Mr. Jensen what she needed to in order to get what she wanted. I do not believe that the accused forwarded the application to the complainant, as she told Mr. Jensen she would. I believe the complainant that he never gave his permission for the accused to open this account and, contrary to her account, he was at home recovering from surgery when the account was opened.

[211] Again here, the bank records show that the accused made some payments to Superior Propane in 2018. This shows she received propane services and benefitted from this account being opened.

[212] Given the totality of the evidence, I am satisfied beyond a reasonable doubt that the accused was the author of the application in the complainant’s name to Superior Propane and that she used his personal information without his permission. I am further satisfied beyond a reasonable doubt that knowing the document was false, she intended for this application to be acted on as genuine, to the prejudice of the complainant. The accused will be convicted on count 8.

Conclusion

[213] In summary, I am satisfied in all instances that the Crown has proved that it was the accused who committed the actus reus, and not someone else. The Crown has also proved that the accused intended to commit these acts as part of a fraudulent scheme that took advantage of the complainant, Mr. Lariviere. Given the totality of the evidence, including the considerable documentary evidence supportive of the Crown’s theory, the accused’s evidence does not leave me with a reasonable doubt about what occurred.

[214] I have considered whether any other reasonable conclusion can be drawn on the evidence. For the reasons I have given, I find there is no reasonable conclusion given the evidence other than the accused’s guilt on the counts at issue.

[215] Accordingly, convictions will be entered on the counts indicated.

Lacelle J.

Handed down (orally): September 5, 2023