Scott K. Fenton

This decision concerns the conviction of Jawad Rathore and Vince Petrozza for Fraud Over $5,000 under section 380 of the Criminal Code related to syndicated mortgage loans raised through their organization, Fortress.

The Court found that Rathore and Petrozza intentionally misled investors by misrepresenting the value of the security backing the loans, using inflated and misleading appraisals to calculate loan-to-value ratios, thereby deceiving investors about the actual security of their investments.

The Crown's theory of non-disclosure of upfront fees was rejected, as fees were paid by the borrower and not the lenders, and no obligation to disclose them to investors was found.

The Court emphasized the high standard of proof beyond a reasonable doubt and relied on documentary evidence to assess credibility and reliability.

The accused were found guilty based on the misrepresentations of value that created a risk of deprivation to investors.

The accused, Graham McLean, was acquitted of sexual assault following a judge-alone trial.

The case turned on whether the complainant, KA, consented to sexual intercourse on July 14, 2016.

The court found Mr. McLean’s evidence credible and reliable, supported by objective evidence such as photographs and weather data.

The complainant’s evidence was found to have inconsistencies and did not align with objective facts, raising reasonable doubt as to her reliability.

The court concluded that the Crown had not proven lack of consent beyond a reasonable doubt and acquitted Mr. McLean.

East West Investment Management Corporation sought an order to pay funds into court or a declaration that its continued management of funds for Thomas Higgins and the TRH Foundation did not contravene the Criminal Code, due to a risk that the funds might constitute proceeds of crime from a German tax fraud scheme involving Maple Bank.

The court, exercising its inherent and supervisory jurisdiction over trusts, granted the order allowing East West to pay CDN$4,398,168 into court, with the consent of the respondents, to mitigate East West's risk of liability under money laundering laws.

The Crown applied for an order to retain seized material for an additional year in a complex criminal investigation involving Fortress Real Capital Inc. and related entities.

The investigation, initiated in 2018, concerned allegations of investor fraud through misrepresentation of property values and investment eligibility.

The court granted the application, finding the investigation to be complex due to the large volume of electronic and hard copy material, the need for professional assistance (computer experts, accountants), and significant delays caused by extensive solicitor-client privilege claims over seized documents.

The court emphasized that while asserting privilege is legitimate, it contributed to the complexity and delay, justifying further detention of the material until June 22, 2021.

The Crown sought leave to appeal a decision staying regulatory charges under the Occupational Health and Safety Act on the basis of unreasonable delay contrary to s. 11(b) of the Charter.

The charges arose from a workplace fatality at a gold mine where a worker was poisoned by cyanide.

The Ontario Court of Justice found that the net delay of 23 months exceeded the presumptive ceiling of 18 months and that the Crown failed to develop and follow a concrete plan to minimize delay.

The Superior Court dismissed the Crown's appeal.

The Crown sought leave to appeal to the Court of Appeal on four grounds relating to the calculation of delay and the application of the Jordan framework.

This ruling addresses the scope of redactions to be applied to public court documents related to a prior non-publication order granted to "Person X." The court balanced the applicant's privacy interests in preventing direct or indirect identification with the public's right to access information, particularly as advocated by media interveners.

The judge approved most of the applicant's proposed redactions but rejected some, allowing general, non-identifying information about Person X's personal circumstances, professional reputation, and the fact of being a target of a Competition Bureau investigation to remain in the public record.

The ruling also vacated a previous sealing order and varied an *in camera* order.

The applicant sought clarification on the form of redacted Information to Obtain (ITO) documents following a non-publication order protecting their identity.

The court ordered that gender-identifying pronouns in specific paragraphs be redacted or replaced with 'it' to ensure consistency and protect the applicant's identity.

The court also rejected a proposed 'Warning' format that would leave identifying information visible but subject to a publication ban, ordering instead that the identifying information be fully redacted from the public versions of the ITOs pursuant to section 487.3 of the Criminal Code.

The applicant, an alleged participant in a price-fixing conspiracy in the fresh commercial bread industry, sought a non-publication order to protect their identity in four Informations to Obtain (ITOs) used to secure search warrants.

The applicant was not a target of the search warrants and had not been charged.

The court applied the Dagenais/Mentuck test and section 487.3 of the Criminal Code, finding that the applicant was an 'innocent person' whose reputation and livelihood would suffer serious and irreversible prejudice if their identity were disclosed.

The court granted the non-publication order in large part, concluding that the salutary effects of protecting the applicant's identity outweighed the deleterious effects on the open court principle, while still allowing public access to the majority of the ITOs.

The appellant, a successful federal election candidate in 2008, was convicted of exceeding his election expense limit, wilfully exceeding his personal contribution limit, and filing a false election campaign return.

He paid $21,000 personally for voter identification and get-out-the-vote services from a contractor, circumventing campaign spending limits, and then conspired to file a false return reporting only $1,575 in expenses.

The trial judge and Summary Conviction Appeal Judge upheld the convictions.

On appeal, the appellant challenged the interpretation of "election expense" under the Canada Elections Act, arguing that the Crown must prove the actual use and commercial value of services purchased.

The Court of Appeal rejected this interpretation, holding that the statutory definition of election expense is clear and unambiguous, and that expenses are measured by the cost incurred, not the value of goods or services consumed.

The court also upheld the application of Criminal Code party liability provisions to Canada Elections Act offences.

Accused charged with trading in securities without registration, issuing securities without filing prospectus, and representing that securities would be listed on exchange with intention of effecting trade.

Accused developed website for company (Asia Global/Asia Power) which stated company would be listed on exchange in future.

Website made clear company was not currently listed and no shares available for purchase.

Unregistered sales representatives defrauded private investors by selling non-existent shares.

Evidence did not establish connection between accused and sales representatives or investors, or that website was created to induce share purchases.

Creation of website not constituting act in furtherance of trade.

Accused not trading in or issuing security and not making representation with intention of effecting trade.

All charges dismissed.

The appellant appealed the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges against a police officer for alleged assault in custody.

The appellant had commenced a private prosecution against Constable Labreche, and after a prima facie case was found, the Crown intervened to assume carriage.

The appellant challenged this intervention in the Superior Court, alleging breach of Charter rights and bias.

The application was dismissed.

The Crown subsequently withdrew the charge.

The appellant brought a second application asserting constitutional challenges to the legislative regime permitting Crown intervention.

The Court of Appeal dismissed the appeal on the basis of issue estoppel, finding that both applications raised identical issues regarding the Crown's decision to take over the prosecution and the appellant's exclusion from it.

The applicants challenged three Part VI authorizations to intercept private communications, arguing a lack of reasonable and probable grounds and investigative necessity.

The court found that the Information to Obtain (ITO) relied almost entirely on unproven tipsters, lacked sufficient detail and corroboration, and contained misleading information regarding applicant travel.

The court also found that investigative necessity was not established as other reasonable investigative methods were not adequately explored.

Consequently, the authorizations were deemed invalid, and the intercepted communications were excluded under s. 24(2) of the Charter.

The applicant, Kevin Wallace, charged under the Corruption of Foreign Public Officials Act, sought leave to cross-examine the affiant of an Information to Obtain (ITO) used to secure an authorization for private communications interception.

This application was part of a Garofoli challenge to the authorization.

The court granted leave to cross-examine on two specific areas: alleged misrepresentations and omissions regarding tipsters #1 and #4, and the asserted involvement of the applicant in a meeting in Dubai, particularly concerning conflicting travel information.

Leave was denied for questions regarding independent investigation/corroboration of tipster information and investigative necessity, as sufficient information was already available or cross-examination would not materially assist.

The applicant sought declarations that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act were unconstitutional, and to set aside the Attorney General's intervention and withdrawal of a private prosecution.

The court dismissed the application, finding that the issues raised had already been judicially determined in prior proceedings (a recusal application and an extension of time to appeal), and therefore the doctrine of issue estoppel applied.

Costs were awarded against the applicant.

The applicant sought prerogative relief challenging the Attorney General’s decision to intervene in and assume carriage of a private prosecution against a police officer for alleged assault during an arrest.

The applicant alleged bias and abuse of process, arguing that Crown counsel’s handling of prior charges against him and the disclosure of a police video demonstrated partiality.

The court held that the Attorney General has authority to intervene in private prosecutions and that such prosecutorial decisions fall within core Crown discretion, subject to review only for abuse of process.

The evidence relied on by the applicant was largely hearsay and insufficient to establish a reasonable apprehension of bias or abuse of process.

The court found no improper conduct in the Crown’s disclosure practices or earlier settlement discussions.

The accused pleaded guilty to fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code.

He used his position as an investment advisor at a bank to steal approximately $9 million from the bank's clients over a six-year period.

He was sentenced to four years imprisonment.

The court issued a ruling on restitution, determining the appropriate amount to be ordered as part of the overall sentence.

The Crown sought restitution of $5,255,850, while the defence argued for a reduced amount of $4,695,871.39, accounting for recovered funds and the civil judgment against the accused.

The court ordered restitution in the amount of $4,695,871.39.