



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gour,
    2014 ONCA 51

DATE: 20140121

DOCKET: C55796

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Gour

Appellant

Sam Goldstein, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 20, 2014

On appeal from the conviction entered on June 28, 2012
    and the sentence imposed on November 2, 2012 by Justice John McIsaac of the Superior
    Court of Justice sitting without a jury.

ENDORSEMENT

[1]

The appellant ran a company that purported to raise money to support
    children with serious illnesses by using canvassers who solicited donations
    from the public, either by telephone solicitation or by way of display boxes
    set up near large stores.  The appellant instructed his employees to refer to
    themselves as volunteers, if asked, when in fact they were paid commissions of
    14 to 35 per cent.  During the seven month period this scheme operated, the
    appellant received about $288,000.  Less than three per cent of these funds
    were turned over to any charitable cause.  It follows that the appellant, who
    did not testify at his trial, retained approximately 62 to 83 per cent of
    $288,000.

[2]

The appellant was convicted of fraud over $5,000 by McIsaac J. of the
    Superior Court of Justice on June 28, 2012.  On November 2, 2012, the appellant
    received a custodial sentence of 15 months, a fine of $280,000, a restitution
    order for $500, and a victim surcharge of $37,000.

[3]

The appellant appeals his conviction and sentence.

[4]

The appellant appeals his conviction on two grounds, one factual and the
    other legal.

[5]

The appellant contends that the trial judge erred in fact in finding
    that he told his canvassers to lie to the public if asked if they were being
    paid for their work.

[6]

We do not accept this submission. The trial judges finding that the
    appellant had instructed his canvassers to mislead the public about the profits
    made from public donations was reasonably based on the testimony of several
    former employees of the appellant and the testimony of a donor who was told
    that her donation would go directly to the child that she wanted to support.

[7]

The appellant submits that the trial judge erred by concluding that the
    appellants failure to disclose a material fact  that his canvassers were not
    volunteers  was relevant in establishing the offence of fraud.

[8]

We disagree.  Based on
R. v. Theroux
, [1993] 2 S.C.R. 5 and
R.
    v. Zlatic
, [1993] 2 S.C.R. 29, which held that the words other fraudulent
    means in the offence of fraud proscribed in s. 380(1) of the
Criminal Code
allow convictions grounded in non-disclosure of important facts, we have no
    hesitation affirming the trial judges key conclusions:

1.

the failure to
    disclose the handsome commissions being paid to these apparent volunteers
    constituted the hiding of a fundamental and essential element of this
    fundraiser-contributor relationship; and

2.

this failure to
    disclose was such as to mislead the reasonable contributor.

[9]

We hasten to add that non-disclosure of
    the status (volunteer v. employee) of a canvasser will not be relevant in every
    charitable fundraising context.  That would be too sweeping a proposition. 
    However, in this case there was extensive evidence that the appellant operated
    his team of canvassers in a manner calculated to mislead the public.  His
    conduct went beyond mere use of the word volunteer.  He also instructed them
    to state that all money would be disbursed to the families of the affected
    children and to deny that they were being paid, and he provided pamphlets that
    claimed that the charity had no paid staff.  In these circumstances, the
    combination of material non-disclosure and outright lying supports the trial
    judges conclusion that a reasonable contributor would have been misled.

[10]

The appellant appeals his sentence.  He
    submits that it ignores rehabilitative considerations and is, therefore, too
    harsh.

[11]

We do not accept this submission. 
    Custodial sentences are the norm in cases of large-scale fraud: see
R.
    v. Dobis
(2002), 58 O.R. (3d) 536 (C.A.) and
R.
    v. Bogart
(2002), 61 O.R. (3d) 75 (C.A.).  The
    imposition of a 15-month custodial sentence was entirely appropriate against
    the backdrop of the trial judges description of this offender and this offence,
    with which we agree:

The offenders fleecing of the
    unsuspecting public was vile and despicable when one realizes that he did so
    using the incentives of unknowing sick and terminally-ill children and their
    families to line his own pockets.  I find the extent of moral blameworthiness
    of the offender to have been at the extreme level.  He has not even accounted
    for the 30 to 40 percent net proceeds that were allegedly to go to the
    beneficiaries of these so-called charities.

[12]

The conviction and sentence appeals are
    dismissed.

J.C. MacPherson J.A.

E.E. Gillese J.A.

C.W. Hourigan J.A.


