Court File and Parties

COURT FILE NO.: CR-19-0457 DATE: 2024Apr16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Katrina Mae Gilmour

BEFORE: Justice L. Lacelle

COUNSEL: T. Bobrovitz, for the Crown D. Grenkie, for the Applicant

HEARD: April 16, 2024 (at Brockville)

Endorsement

[1] Katrina Gilmour has been found guilty of various offences involving fraudulent conduct. Her sentencing hearing before me has not been completed. She has now applied to re-open her case on the following ground: “The TD Bank records are not reliable and require full discovery of same”.

[2] In response to this application, the Crown brings a motion to summarily dismiss the application because it is manifestly frivolous.

[3] Following oral argument on the Crown’s motion, I summarily dismissed Ms. Gilmour’s application to re-open. These are my reasons for that decision.

The evidence on the application to re-open

[4] In support of her application, Ms. Gilmour has filed the “reports” of two Toronto Dominion Bank employees. The “report” by Paula Sawyer-Brown is in fact an email dated January 8, 2024, to various people copying the accused. The “report” by Murtaza Yarkhan is a letter dated February 26, 2024. There is no accompanying affidavit from either employee confirming authorship of the “reports” or adopting them as sworn evidence.

[5] Ms. Gilmour also relies on her own affidavit sworn April 6th, 2024. She includes in her affidavit what appear to be photographs of records. She states in her affidavit that these records, purportedly for the same account, were differently labelled in her two different trials – the one before me which has yet to conclude, and the one before Justice Johnston. The trial before Justice Johnston has concluded but the appeal of her conviction remains outstanding.

The legal principles

[6] In R. v. Haevischer, 2023 SCC 11, the Supreme Court of Canada recently reviewed the test to be applied in motions for summary dismissal of applications made in the criminal law context. It held that the threshold for summary dismissal of applications is whether the underlying application is “manifestly frivolous”. This “rigorous threshold” promotes both trial efficiency and fairness. The court further cautioned that trial judges should err on the side of caution when asked to summarily dismiss an application.

[7] Haevishcer also outlined the following directives for the assessment of a motion for summary dismissal:

a. If the frivolous nature of the application is not manifest or obvious on the face of the record, then the application should not be summarily dismissed and should instead be addressed on its merits (which protects the defendant’s fair trial rights);

b. The moving party on a motion for summary dismissal bears the burden of convincing the judge that the underlying application is manifestly frivolous;

c. When applying the “manifestly frivolous” standard, the judge should not engage in even a limited weighing of the evidence to ascertain if it is reasonably capable of supporting an inference, nor should the judge decide among competing inferences they prefer – any such weighing should be left to the voir dire;

d. The judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest;

e. The applicant’s underlying application should explain its factual foundation and point towards anticipated evidence that could establish their alleged facts. Where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, the judge can reject the factual allegation as manifestly frivolous;

f. The party who has brought the underlying application bears the minimal burden of providing the judge with the following specifics, through oral or written submissions: (1) what legal principles, Charter provisions, or statutory provisions are being relied on and how those principles or provisions have been infringed; (2) the anticipated evidence to be relied on and how it may be adduced; (3) the proposed argument; and (4) the remedy requested. Deciding whether something more is required and how the summary dismissal motion is to proceed is then within the judge’s case management powers;

g. Because the truth of the facts alleged is assumed, an application will only be manifestly frivolous where fundamental flaws are apparent on the face of the record.

The positions of the parties

The Crown

[8] The Crown’s position is articulated in both written and oral submissions. Counsel says that the application is frivolous because it does not articulate a basis for how or why the records are not reliable. There is an insufficient explanation of the reasoning by which the court could find that any of the records in the trial were not reliable. The issue is not apparent on the face of the application materials filed by the defence. There is also no articulated basis for how and why there would be any change in the court’s decision. The Crown notes that the court’s decision finding Ms. Gilmour guilty was based on additional evidence beyond the bank records.

[9] The Crown also argues the application is deficient. The affidavit sworn by Ms. Gilmour is not helpful or at all clear. There is a factual vacuum as to how the email and letter of the bank employees were obtained, and what information was provided to them to prompt their responses. The application was not brought in a timely manner (it is now 7 months since the findings of guilt were entered) and an application of this kind with so little detail or clarity risks delaying the matter further and unnecessarily. It is not clear what is sought by way of a remedy. Does “full examination of the records” mean calling a representative from the bank? Or recalling the accused to testify? Further, the Notice of Application does not articulate the grounds to be argued in support of the application.

[10] Ms. Gilmour’s application to re-open, even taken at its highest and accepting what is contained in her application record, does not explain how or why a “discovery” of the bank records at this stage is required and should be allowed. In fact, the factual assertion that Mr. Eaton was not involved with the account furthers the inferences to be drawn against Ms. Gilmour.

[11] The Crown emphasizes that the contents of the bank records have been known to the defence for some time (since December 2021) yet the first time there was any suggestion that there was an issue with them came months after the findings of guilt in December of 2023. The Crown emphasizes the need to ensure trial efficiency in this case and argues that the process has been fair to Ms. Gilmour, who has been in possession of the records for years without identifying any problems with them. The Crown maintains that the application to re-open cannot be brought now simply because Ms. Gilmour did not agree with the outcome of the trial.

The defence

[12] In response to the Crown’s motion, the defence says it wants to be able to examine the bank records of the TD bank for this case, as well as the case heard by Justice Johnston which is now under appeal. Counsel says his client realized that “the bank accounts are different - in one set they are one thing, in another they are another”. Counsel says the defence wants to examine records in this trial, but also those in front of Justice Johnston, because they are different. He questions whether they are accurate. He says that if they are not “then the whole issue of what could or could not be put in the account” is important.

[13] Counsel asserts that “the bank records with the numbers don’t match up”. This could have been a mistake by the bank or for some other reason. The accused has now found these errors and since the court did rely on the records in the judgment, the defence “wants to make sure that things are right”. It is important, counsel says, to discover the truth.

Analysis and decision

[14] The gist of the defence application, as I understand it, is to the effect that there are differences in the bank records used in the trial before me and the trial before Justice Johnston. The affidavit provided by the accused includes 3 paragraphs that discuss how accounts were labelled in each trial and some of the transactions they contain. The final paragraph indicates that one account (#3496-6245211) was labelled as Ms. Gilmour’s account in the trial before Justice Johnston, and as Ms. Gilmour’s account with Jonathan Eaton before me. There are photos attached, that I assume are from Crown disclosure, of individual pages of records. The images are barely legible.

[15] The email from Paula Sawyer-Brown states that while at one point the account was jointly held by Ms. Gilmour and Anita Gilmour, Jonathan Eaton has never had an affiliation with that account.

[16] The letter from Murtaza Yarkhan indicates that Ms. Gilmour asked the bank to review and comment on the accuracy of the production order used by police to obtain her bank records. Amongst other things, Mr. Yarkhan indicates the bank only keeps account details for 7 years after an account is closed, and notes that Ms. Gilmour’s accounts were closed in 2015 and 2016. At this time, the records that remain available to the bank indicate the account #62***11-3496 (which I assume to be the same account as referenced above) was a joint account between the accused “and Anita”.

[17] Taken at its highest, and ignoring the deficiencies in the application record (such as the lack of affidavit evidence from the bank employees and the absence of grounds for the application) the information provided in the defence application to re-open suggests that a TD account held by Ms. Gilmour may have been improperly labelled in disclosure or as the trial record was being prepared. There is nothing in the evidence that suggests any inaccuracies of substance in the records themselves. Nor does the defence articulate any factual finding made by the court which must be reconsidered in light of any potential labelling error.

[18] Importantly, the application record leaves no doubt the account was held by Ms. Gilmour. As noted by the Crown, far from improving the defence position at trial, the fact asserted in the defence application (that the account was not jointly held with Mr. Eaton) only furthers the inferences to be made against her.

[19] I find that Ms. Gilmour cannot point to any anticipated evidence that would justify re-opening the case. She has not pointed to any anticipated evidence, or argument, that would explain why there would be any change in the court’s decision if her application to re-open were granted.

[20] The test to re-open after findings of guilt have been made and convictions recorded is more rigorous that that which governs the same application made prior to an adjudication of guilt, because a more exacting standard is required to protect the integrity of the criminal trial process, including the enhanced interest in finality: R. v. M.G.T., 2017 ONCA 736 at para. 47. The Palmer test will be applied in any event. This test requires that the evidence proposed to be obtained by re-opening must be such that if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. In the context of an application to re-open post-conviction, the evidence must be related to a decisive or potentially decisive issue at trial: M.G.T. at paras. 48-50.

[21] In this legal context, and taking the information in the application record at its highest, it is apparent on the face of the record that the defence application would necessarily fail. It is frivolous within the meaning of Haevisher. It is important in these circumstances that the court protect trial efficiency and avoid wasting court time by conducting a hearing of the application: see Haevisher at para. 49.

[22] The Crown has met its burden on its motion for summary dismissal. Accordingly, Ms. Gilmour’s application to re-open the case is dismissed.

Lacelle J. Date: April 16, 2024