



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Romain, 2017 ONCA 519

DATE: 20170621

DOCKET: C54627, C54738, C55325, C55370

Doherty, LaForme and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C54627

Abena Romain

Appellant

and

C54738

Tasha Spruyt

Appellant

and

C55325

Fitzroy Osbourne

Appellant

and

C55370

Akido Jack

Appellant

R. Craig Bottomley and Sherif M. Foda, for the appellant
    Romain

Nicholas A. Xynnis, for the appellant Spruyt

Mark Halfyard and Breana Vandebeek, for the appellant
    Osbourne

James C. Fleming, for the appellant Jack

John Corelli and John A. Neander, for the respondent

Heard:  June 5 and 6, 2017

On appeal from the convictions entered by Justice Myrna
    L. Lack of the Superior Court of Justice, sitting with a jury, on November 18,
    2011.

By the Court:

Introduction

[1]

The four appellants and others were tried by a jury on a 31-count
    indictment.  The indictment included 14 counts of fraud over $5,000 and 14
    corresponding conspiracy charges.  Each appellant was charged with some, but
    not all, of the
fraud/conspiracy allegations.  In addition,
    all of the appellants were charged with, and convicted of, a single count of
    knowingly contributing to an activity of a criminal organization by
    facilitating the making of fraudulent loans (count 1).  The appellants were not
    charged in two of the fraud counts in the indictment (counts 2 and 25).

[2]

The appellants convictions and acquittals on the various fraud/conspiracy
    charges can be summarized as follows:

The
    appellant Jack

·

Convicted
on 10 charges (5 fraud and 5 related conspiracy charges); and

·

Acquitted on 4 charges (2 frauds and 2 related conspiracy charges).

The appellant Osbourne

·

Convicted on 4 charges (2 frauds and 2 related conspiracy charges);
    and

·

Acquitted on 4 charges (2 frauds and 2 related conspiracy charges).

The appellant Romain

·

Convicted on 4 charges (2 frauds and 2 related conspiracy charges);
    and

·

Acquitted on 2 charges (1 fraud and related conspiracy charge).


The
    appellant Spruyt

·

Convicted
    on 10 charges (5 frauds and 5 related conspiracy charges); and

·

No
    acquittals.

[3]

The appellants appealed their convictions.  The appellant, Mr. Jack,
    also appealed his sentence, however, counsel abandoned that appeal at the
    outset of his oral argument.

[4]

After oral argument, the court advised counsel that the appeals would be
    dismissed with reasons to follow.  These are our reasons.

The Scheme

[5]

The fraud and
related conspiracy charges involved what
    was referred to as an advance fee scheme.  Telemarketers, working from
    various boiler room
[1]
locations in the Toronto area, spoke with American residents who had responded
    to advertisements.  The telemarketers told the callers that they could borrow
    money on a short-term basis from various private lenders.  The companies
    represented as lenders did not exist and no loans were ever advanced.

[6]

The victims, who had poor credit ratings, were told by
    the telemarketers that certain advanced payments had to be made before the
    victims could receive the loans.  Some victims made a single advanced payment
    and some made more than one payment.  The amounts of these payments varied.  The
    victims never received any loans.

[7]

The Crown alleged that the appellants worked the
    phones in one or more of the boiler rooms.  They called the potential
    victims, and working from prepared scripts, made the relevant misrepresentations. 
    If they were successful in convincing the victim to make the payments, they
    made arrangements for those payments.  The victims lost over $1 million in the
    course of the scheme.

[8]

The police investigation began in February 2008, when
    the police searched a residence after the fire department had responded to a
    flooded house call.  The search revealed many documents apparently connected to
    an ongoing telemarketing advance fee scheme.  The investigation continued to July
    24, 2008, when the police conducted simultaneous raids at several boiler rooms
    in the Toronto area.  They found many documents connected to the fraudulent scheme
    in those locations.

[9]

The investigation revealed that numerous fictitious companies were used
    as the supposed lenders in the scheme.  The
28
    fraud/conspiracy charges involving one or more of the appellants related to 14
    of those companies.  A single charge of fraud over $5,000 and conspiracy to
    commit fraud was laid in relation to each.

[10]

By the end of the trial, it was common ground that the fraudulent scheme
    alleged by the Crown existed and that many people had been victimized.  The
    appellants claimed that they were not involved in the fraudulent scheme in any
    way.

[11]

The Crowns case rested on surveillance evidence in
    respect of two of the appellants, and fingerprint evidence placing the
    appellants fingerprints on various documents directly related to the
    fraudulent scheme.  Those documents were found in different boiler rooms. 
    Ms. Romain was arrested in one of the boiler rooms.

[12]

The appellants who were said to have been identified in
    the surveillance evidence, argued that the identification evidence was
    unreliable.  All of the appellants argued that although their fingerprints were
    found on the documents as claimed by the Crown, those fingerprints in and of
    themselves could not establish beyond a reasonable doubt that the appellants
    were involved in the fraudulent scheme.  Ms. Romain testified.  The other
    appellants did not.  Ms. Romain explained that she happened to be in one of the
    boiler rooms when the police arrived, having gone there earlier to purchase marihuana. 
    She smoked the marihuana in the basement and was upstairs making a call on her
    cell phone when the police arrived.  She was unaware of the fraudulent activity
    going on around her in the boiler room.

The Appellant mr. Osbournes Appeal

Was the appellant, Mr. Osbourne, denied his right
    to counsel of choice?

[13]

Mr. Osbourne was represented by Ms. Abraham throughout
    the proceedings before trial.  Very shortly before the trial was to commence, Ms.
    Abraham told Mr. Osbourne that she could no longer act for him as she had taken
    a contract position with the Crown Attorneys office.  On the first day of
    trial, with jury selection about to begin, the trial judge was told that Ms.
    Abraham was withdrawing as Mr. Osbournes counsel because of the supposed
    conflict of interest.  The trial judge was told that Ms. Abraham had made
    alternate arrangements for Mr. Osbournes representation.  Ms. Abraham was not
    present.

[14]

The trial judge was concerned that Mr. Osbourne be
    properly represented, that the trial proceed as scheduled, and that the very
    large jury panel assembled for jury selection not be inconvenienced any more
    than was necessary.  She ordered Ms. Abraham to appear and briefly adjourned
    the proceeding.

[15]

Discussions occurred over the next day or so.  We need
    not detail those discussions.  The arrangements for Mr. Osbournes
    representation seemed to be in a state of flux.  The trial judge made it clear that
    she would require Ms. Abraham to continue to represent Mr. Osbourne if he so
    wished.  Mr. Osbourne initially indicated he wanted Ms. Abraham to continue as
    counsel, but in a subsequent dialogue with the trial judge, he indicated that he
    was no longer content to have her as counsel.

[16]

Ultimately, the following exchange occurred.  As it is central to this
    ground of appeal, we set it out in full:

MS. ABRAHAM:  I apologize for keeping the court waiting.  Mr.
    Osbourne, perhaps he should come forward.  I have made

THE COURT:  Yes.

MS. ABRAHAM: arrangements for somebody that I know Mr.
    Osbourne wanted as counsel and that counsel, Mr. Hy Rosenberg.  Mr. Rosenberg
    is willing and able to appear here tomorrow and for his trial.  Now Mr.
    Osbourne, I believe Your Honour would like to hear directly from him how he
    feels about that.

THE COURT:  Yes, Mr. Osbourne, do you  is that satisfactory
    with you.

MR. OSBOURNE:  Yes because Im familiar with this lawyer.

THE COURT:  I just want to make this perfectly clear to you. 
    Im prepared to make an order today.  Well I dont have to make an order
    today.  The fact is that Ms. Abraham is on the record and Im just prepared to
    say to her I understand you have difficulties, but youre on the record and you
    must see this trial through, okay.  So thats an option for you Mr. Osbourne. 
    You can carry on with  in this trial with Ms. Abraham as your lawyer. 
    Alternatively, if that doesnt suit you, you can say, well in light of the
    circumstances here I want an opportunity to get another lawyer and I want an
    adjournment and so I would then, in all likelihood, grant you that adjournment
    to do that, or thirdly, if you  if what is being suggested here that Mr.  is
    it Rosenberg.

MS. ABRAHAM:  Yes.

THE COURT:  Mr. Rosenberg represent you and come tomorrow and
    hes able to do that, thats fine too.  So those are your options.  Do you need
    some time to think about it?

MR. OSBOURNE:  Im okay with Mr. Rosenberg.

THE COURT:  Okay, youre completely satisfied.

MR. OSBOURNE:  Yes.

THE COURT:  All right, thats good enough for me then.  Okay,
    thats fine, thank you sir.  You can sit down.

[17]

The trial judge put Mr. Osbournes options to
    him fairly and fully.  Mr. Osbourne made a clear and unequivocal decision to
    proceed with Mr. Rosenberg as his counsel.  There is no suggestion that Mr. Osbourne
    was acting under any disability or did not fully understand the situation or
    the options available to him.  The trial judge did not pressure Mr. Osbourne to
    make a choice.  She expressly told him that he did not have to make a decision
    then and there, but could have some time to think about it.  Mr. Osbourne
    declined that invitation.  Nor does it advance the appellants argument to
    point to things the trial judge could have done, but did not do.  It is almost
    inevitable when a trial judge is faced with a situation like this that one can
    think of something the trial judge could have done that he or she did not do. 
    That is not the standard of review.  The issue is whether the trial judge did
    what had to be done to ensure that Mr. Osbourne could meaningfully exercise his
    right to counsel of choice.  She did.

[18]

As the above-quoted passage demonstrates, Mr. Osbourne
    had his counsel of choice.  In his affidavit, filed in this court five years
    after his conviction, and on the eve of the appeal, Mr. Osbourne declares that
    he did not have counsel of choice.  However, to the extent that the affidavit
    sheds any light on the matter, it demonstrates that Mr. Osbourne was fully aware
    of his options at trial, appreciated the pros and cons of each, and made a
    choice to proceed with Mr. Rosenberg.  The choice was a fully informed one,
    although no doubt, like many choices people make, somewhat dictated by the
    circumstances.  The affidavit offers no support for the claim that Mr. Osbourne
    was denied his counsel of choice.

[19]

There is no allegation that Mr. Osbourne was not properly
    represented by Mr. Rosenberg, and no suggestion that there were any problems
    with the client-solicitor relationship during trial.  Indeed, Mr. Osbourne was
    acquitted on four of the nine charges he faced.

[20]

In rejecting the claim that Mr. Osbourne was denied his
    counsel of choice, we have considered his affidavit.  For the reasons set out
    above, it does not advance the appellants argument on this ground of appeal.  In
    considering Mr. Osbournes affidavit on this ground of appeal, we should not be
    taken as rejecting the Crowns argument that the court should not receive the
    affidavit in light of its very late filing.

[21]

The Court of Appeal can admit fresh evidence where it
    is in the interests of justice to do so:
Criminal Code
s. 683(1).  There is a strong argument to be made that the interests
    of justice would not be served by receiving the appellants affidavit on the
    eve of the appeal, when no explanation is offered for the total failure to
    comply with the rules and conventions of this court governing fresh evidence
    applications in criminal appeals.  The negative impact on the proper
    administration of justice flowing from receiving an affidavit at this stage of
    the proceeding is properly considered in determining what the interests of
    justice require in a given case.  The timing of the filing of the appellants
    affidavit, had there been any merit to this argument, may well have forced the court
    to bifurcate the appeal and further delay the resolution of what is already a
    five-year old appeal.  We would think the court would be reluctant to go down
    that path without some good explanation for the late filing of the material and
    some demonstration of real potential merit in the fresh evidence application.

Did the trial judge err in
    refusing to allow counsel for Mr. Osbourne to file CPIC entries for one Yuri
    Lionel?

[22]

Yuri Lionel was alleged by the Crown to be a
    central figure in the fraudulent scheme.  He was charged, but absconded.  There
    was an outstanding warrant for his arrest at the time of the trial.

[23]

At trial, counsel for Mr. Osbourne indicated
    that Mr. Osbourne intended to testify on his own behalf.  Mr. Osbourne intended
    to testify that he had gone to Mr. Lionels residence, one of the boiler rooms,
    to purchase marihuana from Mr. Lionel and not because he was working in the boiler
    room as part of the fraudulent scheme.  Counsel submitted that Mr. Lionels
    record as reflected in the CPIC entries was evidence that Mr. Lionel was a drug
    dealer and would therefore support to Mr. Osbournes proposed evidence.

[24]

The submission focused on two entries in the
    CPIC record.  Mr. Lionel was convicted of possession of a narcotic in 1999,
    some nine years before the relevant events.  He was also charged with
    trafficking in a narcotic, about the same time. That charge was withdrawn.

[25]

The CPIC record was hearsay.  The Crown argued
    that there were various ways the defence could have tendered the criminal
    record of Mr. Lionel as admissible hearsay, but having chosen not to do so, the
    evidence was not admissible.  The defence submitted that the trial judge had
    the authority to relax the rules of evidence to assist the defence in proving
    Mr. Lionels criminal antecedents.

[26]

The Crowns submissions are persuasive, but in
    our view, this ground of appeal can be disposed of without deciding the merits
    of those arguments.

[27]

The admissibility of the CPIC entries fails for
    want of relevance.  The fact that Mr. Lionel was in possession of marihuana
    nine years earlier says nothing about whether he was a trafficker in the drug
    nine years later.  The fact that Mr. Lionel was charged with possession of a
    narcotic for the purpose of trafficking and that the charge was withdrawn, has
    no evidentiary value.  A charge that has been withdrawn permits no inference
    about Mr. Lionels involvement in drug dealing at the time of the charge, much
    less nine years later.

[28]

The evidence had no relevance and was properly
    rejected by the trial judge.

Did the trial judge adequately
    instruct the jury on the eyewitness evidence as it related to the appellant, Mr.
    Osbourne?

[29]

During their investigation, the police had a boiler
    room located on Whites Road under observation.  One of the surveillance officers
    testified that on July 18, 2008, he saw an individual he identified as Mr. Osbourne
    leaving that location.  The Crown relied on this evidence to connect Mr.
    Osbourne to a boiler room other than the boiler rooms in which documents
    with his fingerprints on them had been found.

[30]

The defence vigorously challenged the officers
    identification evidence.  There were many reasons for the jury to be cautious
    about the reliability of that evidence.

[31]

The trial judge charged the jury in general
    terms on the dangers inherent in identification evidence.  She emphasized the
    need to be very cautious about relying on that evidence.  The trial judge
    reviewed the identification evidence in detail.  When outlining the position of
    Mr. Osbourne, she summarized the various defence arguments supporting the claim
    that the jury should not rely on the eyewitness identification.  Considered in
    its entirety, the charge was thorough, balanced and legally correct.

[32]

There was no objection to the trial judges
    instructions.  Those instructions were fully vetted with counsel before the
    trial judge delivered her charge.

[33]

On appeal, counsel submits that the jury should
    have been told that they could consider the eyewitness evidence as capable of
    supporting the Crowns case only if the jury was certain that the officer was
    identifying the person as Mr. Osbourne and not simply testifying that the
    person looked like Mr. Osbourne.

[34]

The first part of this submission is incorrect
    in law.  The jury did not have to be certain about the identification
    evidence before making findings based on it.  Second, the distinction between
    identifying Mr. Osbourne and testifying that the person resembled Mr. Osbourne arose
    out of the cross-examination of the officer on notes he made shortly after his observations. 
    In those notes, the officer used the word resembles when comparing the
    appellants photograph to the person he saw leaving the boiler room on Whites
    Road.  The defence relied on this reference to argue that the officer could not
    really identify the person as Mr. Osbourne, but could only say that he looked
    like Mr. Osbourne.  The trial judge reviewed this part of the evidence in her
    jury charge.

[35]

Whether the officer could actually identify Mr.
    Osbourne or could only say that the person resembled Mr. Osbourne was one of many
    evidentiary issues arising from the identification evidence.  The officer
    testified that he identified Mr. Osbourne.  The trial judges thorough review
    of the evidence would no doubt remind the jury of the relevant parts of the
    officers evidence, including his use of the word resembles in his notes.

[36]

There was an evidentiary basis supporting the
    argument that the officer could only say that the person resembled Mr.
    Osbourne.  The defence made that argument.  The trial judge in her instructions
    on the relevant law and her review of the relevant evidence was not required to
    argue the case for the defence.  We see no error in her instructions.

Did the trial judge fail to relate
    the elements of party liability to the evidence implicating Mr. Osbourne?

[37]

The trial judge instructed the jury at length on
    the elements of the relevant offences, the evidence relevant to the various
    offences, and the positions of the parties.  She reviewed a draft of her
    instructions with counsel and counsel had no objections to the manner in which she
    put the case to the jury.  Arguments made on appeal that effectively resile
    from a considered position taken at trial on the manner in which an accuseds
    case should be put to the jury should be viewed with skepticism.

[38]

The trial judges instructions must be read as a
    whole.  This charge made it clear to the jury what the Crown had to prove
    beyond a reasonable doubt before Mr. Osbourne could be convicted on any of the
    charges.  The Crowns case came down to the assertion that Mr. Osbourne was
    working in one or more of the boiler rooms in furtherance of the advance loan
    scheme with knowledge of the fraudulent nature of the scheme.  The defence
    position came down to the claim that the Crown had failed to prove that he was
    one of the telemarketers.

[39]

Despite the length of the trial, and the bulk of
    the documentary evidence, this was a simple case.  The Crowns theory and the
    defence position were equally straightforward and easy to understand.  We have
    no doubt that the jury fully understood what the Crown had to prove and the
    respective positions of the parties.  The different verdicts arrived at by the
    jury on the various fraud/conspiracy counts demonstrate that the jury carefully
    considered the evidence as it related to the various allegations.

Were Mr. Osbournes convictions
    unreasonable?

[40]

The law applicable to a claim that convictions
    are unreasonable is well settled:  see
R. v. Villaroman
, [2016] 1 S.C.R.
    1000.  An appellate court must decide whether a reasonable jury, properly
    instructed, could be satisfied beyond a reasonable doubt that Mr. Osbourne was
    complicit in the offences for which he was convicted.

[41]

The reasonable verdict analysis has two
    counterbalancing components.  An appellate court must engage in a limited
    re-weighing of the evidence.  In doing so, the court looks at the evidence
    through the lens of judicial experience.  However, the court must also recognize
    the paramount and advantaged position of the jury as fact finder.  The
    appellate court acknowledges that advantage by deferring to the jurys
    assessment of the evidence if the jurys assessment, that is its verdict, is
    within the reasonableness range having regard to the totality of the evidence.

[42]

The appeal court does not scour the record in
    search of explanations for, or gaps in, the evidence that are arguably
    inconsistent with the jurys verdicts.  Instead, the appellate court accepts
    that the jury has performed its function and asks whether the jurys ultimate assessment
    is a reasonable one.  The mere fact that the appeal court, or another reasonable
    jury, might have reached different verdicts is not determinative of the
    reasonableness of the verdicts actually reached by the jury.

[43]

Bearing in mind both the requirement that the
    court re-weigh the evidence to a limited extent, and the requirement that the
    court defer to the jurys assessment, we are satisfied that the convictions
    clear the reasonableness bar.

[44]

The evidence considered as a whole supports the
    following reasonable inferences:

·

Mr. Osbourne was at some time in possession of four documents that
    were closely tied to the fraudulent scheme.  The contents of at least some of
    those documents made the fraudulent nature of the scheme crystal clear;

·

The documents were of a sort that one could not reasonably be
    expected to have access to if one was not a participant in the fraud;

·

Mr. Osbourne was in possession of the documents at two different boiler
    rooms;

·

Mr. Osbournes possession of the documents at two different
    locations occurred many months apart from each other;  and

·

Mr. Osbourne was seen exiting a third boiler room several months
    after he was in possession of fraud-related documents at one of the other boiler
    rooms.

[45]

These inferences could reasonably support the convictions
    entered against Mr. Osbourne.  It is also relevant to the reasonableness
    assessment in this court that Mr. Osbourne did not testify.

[46]

Mr. Osbourne was acquitted on two of the fraud
    charges and the two related conspiracy charges.  It is not argued that those
    acquittals are in any way inconsistent with the convictions such as to cast any
    doubt on the reasonableness of those convictions.

The Appellant ms. Spruyts Appeal

[47]

Counsel for Ms. Spruyt advanced five grounds of
    appeal in his factum.  He argued three of them in his oral submissions.  We
    will address those three arguments.

Did the trial judge err in holding
    that the Crown could cross-examine Ms. Spruyt on her prior convictions for
    fraud and unlawful use of a credit card?

[48]

Trial counsel for Ms. Spruyt brought a 
Corbett
 application prior to deciding
    whether Ms. Spruyt would testify.  Counsel asked the court to prohibit Crown
    counsel from cross-examining Ms. Spruyt on her prior convictions.  She had been
    convicted in 2007 of two counts of fraud under $5,000 and one count of
    unlawfully using a credit card.    The charges were laid in 2006.  The evidence
    in this case suggested that the advance fee loan scheme was ongoing no later
    than the fall of 2007 and continued until the summer of 2008.

[49]

The trial judge dismissed the 
Corbett
 application.  Ms. Spruyt did not testify.

[50]

In dismissing the application, the trial judge
    acknowledged the potential prejudice flowing from cross-examination on
    fraud-related convictions when the accused was facing fraud-related charges. 
    At the same time, she described those prior convictions as highly probative of
    her [Ms. Spruyts] honesty and important to the jury in assessing Ms. Spruyts
    credibility.  The trial judge ultimately concluded that the probative value as
    it related to Ms. Spruyts credibility significantly outweighs the danger of
    prejudice, particularly in light of the fact that the jury will receive a clear
    direction as to the limited use it can make of the information.

[51]

In the usual course, a witness, including an
    accused, may be cross-examined on a prior criminal record.  That
    cross-examination goes to credibility.  The trial judge can prohibit cross-examination
    on a prior criminal record if the potential prejudice from the
    cross-examination outweighs any potential probative value.

[52]

The trial judges ruling involves an exercise of
    her discretion.  This court will not interfere with that exercise absent
    demonstrable misapprehension of material facts, an error in principle, or what
    can be characterized as an unreasonable exercise of the discretion in all of the
    circumstances.  We see no reversible error in the trial judges exercise of her
    discretion.  Recent convictions for multiple crimes of dishonesty can be an
    important consideration in assessing the truthfulness of a witnesss
    testimony.  The trial judge did not err in holding that this potentially important
    evidence should not be kept from the jury should Ms. Spruyt elect to testify.

[53]

There is no basis upon which we can interfere
    with the trial judges exercise of her discretion.

Did the trial judge fail to relate
    the elements of party liability to the evidence against Ms. Spruyt?

[54]

The same ground of appeal was advanced on behalf
    of Mr. Osbourne (see
supra
, at paras. 37-39). 
    We would reject the submission made on behalf of Ms. Spruyt for the same
    reasons that we rejected Mr. Osbournes submissions.

Were Ms. Spruyts convictions
    unreasonable?

[55]

The Crowns case against Ms. Spruyt rested
    entirely on fingerprint evidence.  Thirteen fingerprints belonging to Ms.
    Spruyt were found on eight documents connected to five of the fictitious
    companies put forward to the victims as lenders.  The documents were seized
    from two boiler rooms.  Some of the documents were seized by the police in
    February 2008 at one boiler room, and others dated after February 2008 were
    seized in July 2008 at a different boiler room.

[56]

Taking the approach outlined above (at paras.
    43-45), and considering the evidence in its totality, we are satisfied that the
    evidence could support the inferences necessary to find that Ms. Spruyt was
    involved in the fraudulent scheme over an extended period of time.  Her fingerprints
    permit the inference that she was in possession of documents directly connected
    to the fraud at different places and at different times.  A jury could also reasonably
    conclude that some, if not all, of these documents were not the kind of
    documents that a person unconnected to the fraud would have in his or her
    possession.  The verdicts cannot be said to be unreasonable.

the appellant ms. romains appeal

Did the trial judge fail to
    protect Ms. Romains right to a fair trial?

[57]

At trial, after the Crown had completed its
    examination-in-chief of Detective Lamothe, the lead investigator, counsel for
    Ms. Romain brought a motion to stay the proceedings on the basis that the Crown
    had failed to produce to the defence potentially exculpatory evidence in the
    possession of the police.

[58]

As we understand the position at trial, the
    defence argued that Ms. Romain was speaking on her cell phone when the police
    entered the boiler room at 1990 Whites Road and arrested her.  She claimed
    that the police seized her phone.  Ms. Romain maintained that her cell phone
    records would show that she was speaking to a friend at the time of her
    arrest.  According to the defence, this evidence would contradict the Crowns
    claim that she was involved in the activities of the boiler room when the
    police arrived.

[59]

Defence counsel told the trial judge that he had
    been led to believe that the cell phone had been seized by the police and that
    the phone and/or relevant records would be produced by the police.  According
    to trial counsel, it became apparent to him during the trial that the Crown had
    no intention of producing the cell phone and had in fact lost the phone.  This
    realization precipitated the motion for a stay.

[60]

In response, the Crown made three points to the
    trial judge.  First, it had no cell phone records.  Second, it had never
    undertaken to produce any cell phone records.  Third, the defence knew, at
    least since the preliminary inquiry, that it was the evidence of the police
    that many cell phones had been seized from the Whites Road address and that the
    police could not say whether Ms. Romains phone had been seized.

[61]

The next day, the police brought 13 cell phones
    to court.  The Crown indicated that all of them had been seized from the 1990
    Whites Road address.  The phones were available immediately outside of the
    courtroom.  Crown counsel told the trial judge that the police suspected that
    one of them could belong to Ms. Romain because it was different than the other
    phones.  Crown counsel invited Ms. Romain and her counsel to examine the cell
    phones and identify Ms. Romains phone, if it was among those seized.

[62]

The trial judge also invited counsel for Ms.
    Romain to examine the phones, identify his clients phone, and should the
    police for some reason refuse to produce it, return to court for the
    appropriate order.

[63]

For some reason, defence counsel never responded
    directly to this simple straightforward suggestion.  Instead, he went on at
    some length about his proposed cross-examination of one of the police officers.

[64]

The trial judge ultimately dismissed the stay motion
    on the basis that the defence had failed to comply with the applicable criminal
    rules and offered no acceptable explanation for that failure.  The trial judge
    reviewed the history of the matter, stressing that the defence was aware of the
    Crown position in respect of Ms. Romains cell phone at least 18 months before
    trial, but had not brought a motion for production.  The trial judge also
    mentioned that the defence could have brought an application for production of
    the records from the cell phone service provider, but had not done so.

[65]

On appeal, the argument surrounding the
    missing cell phone has shifted shape.  There is no longer any suggestion that
    the police had lost exculpatory evidence.  Now, the fundamental error, according
    to appellate counsel, is the trial judges failure to either order production
    of the cell phone or production of the relevant records from the cell phone.

[66]

This argument fails.  The police brought all of
    the seized cell phones to court.  Counsel for Ms. Romain had ample opportunity
    to examine those cell phones, identify Ms. Romains phone, if it was among
    them, and seek the appropriate order.  It made no sense for the trial judge to
    make any kind of production order, unless and until it was clear that one of
    the 13 seized cell phones belonged to Ms. Romain.  The easiest and most obvious
    way to achieve that end was to have counsel and Ms. Romain examine the cell
    phones.  The trial judge invited counsel to do that.  There is no evidence that
    counsel ever looked at the phones, or if he did that any of them belonged to
    Ms. Romain.

[67]

Absent any indication by counsel to the trial
    judge that one of the phones had some connection to Ms. Romain, we are at a
    loss to understand how or why the trial judge would make an order directing the
    production of a cell phone or the cell phone records.  In the absence of any
    indication that one of the cell phones belonged to Ms. Romain, the trial
    judges failure to order one or more of the phones produced, or her failure to
    order the records in relation to one or more of the phones produced, could not
    possibly have had any negative impact on the fairness of the trial.

[68]

The trial judge made no error in dismissing the
    motion on procedural grounds.  The motion as now framed on appeal is also
    devoid of merit.

Did the trial judge err in failing
    to instruct the jury on bad character evidence?

[69]

Ms. Romain testified that she went to the Whites
    Road address to purchase marihuana.  She smoked marihuana in the basement
    shortly before the police arrived.  Before the police arrived, she had gone upstairs
    and was sitting on a couch talking on her cell phone.  As it turns out, she was
    surrounded by documents relating to the fraud.  She testified that she may have
    inadvertently touched some of those documents.  She claimed to have no idea of
    the ongoing boiler room operation in the upstairs area.

[70]

In cross-examination, Ms. Romain was asked about
    a statement she gave to the police.  Crown counsel suggested to her that, in
    the statement, she acknowledged to the officer that she became aware of what
    was going on upstairs when she went back up after smoking marihuana.  Crown
    counsel suggested that Ms. Romain indicated to the officer that she was not
    particularly concerned about it as she had gone to the residence for an illegal
    purpose in any event.  The Crown suggested to her that her attitude in the
    interview was captured by the phrase in for a penny in for a pound.  Ms.
    Romain was adamant throughout the cross-examination that she told the officer
    that she only realized what was going on at Whites Road after he told her.

[71]

Counsel were provided with a draft of the trial
    judges charge and given a full opportunity to make submissions on its
    contents.  There was no suggestion by anyone that the evidence about marihuana
    consumption should precipitate an instruction against bad conduct propensity
    reasoning.

[72]

The suggestion that the jury might infer that
    because Ms. Romain used marihuana, she had a propensity to commit all crimes,
    including telemarketing fraud, is to say the least farfetched.  The argument
    becomes even less tenable in light of the nature of the cross-examination. 
    Crown counsels questions did not target Ms. Romains marihuana use as
    demonstrating a propensity to commit crimes, but rather the cross-examination
    sought to highlight what the Crown argued was a patently unbelievable
    explanation offered by Ms. Romain for her conduct at Whites Road.

[73]

Like counsel at trial and the trial judge, we see
    no risk that the jury improperly used propensity reasoning to infer that because
    Ms. Romain used marihuana, she was a telemarketing fraudster.

Did the trial judge misdirect the
    jury that some of the evidence against Ms. Romain was direct evidence?

[74]

In her instructions, the trial judge gave the
    usual explanation to the jury about the difference between direct evidence and
    circumstantial evidence.  She also told the jury:

In a case such as this, where the evidence for
    the prosecution is substantially circumstantial, an accused person should only
    be found guilty where you are satisfied that the guilt of an accused person is
    the only reasonable conclusion to be drawn from the whole of the evidence
    pertaining to that accused person.

[75]

Later, when instructing the jury on the elements
    of the offence of fraud as it related to Ms. Romain, the trial judge said:

The case against Ms. Romain is not a wholly circumstantial
    case.  There is evidence from which you may find direct participation in the
    frauds alleged.  I am referring to the evidence about where she was and what
    she was doing when police entered the residence at Whites Road.
Crown counsel also relies on circumstantial evidence to prove her
    knowledge of the existence of a criminal organization and her participation in
    the conspiracies to commit fraud and the frauds alleged against her.

You should consider all of the evidence about
    how the advance fee loan operation was conducted, the methods in general and
    the specifics of the transactions that Ms. Romain is alleged to have been
    involved in.  You should consider the evidence of Detective Lamothe and others
    about where Ms. Romain was sitting and what she was doing at 1990 Whites Road,
    Unit 11 on July 24th, 2008 when police entered.  Consider the evidence of where
    the various documents were found in relation to her. Consider all of the evidence
    of who and what police found.  There is an audio/video tape recording of the
    premises after they entered, Exhibit 35.  Consider what is seen and heard on
    it.  [Emphasis added.]

[76]

The trial judge went on to refer to other
    evidence relevant to the case against Ms. Romain, including her fingerprints
    and her own testimony.  After referring to that evidence, she reminded the jury
    of the ultimate burden on the Crown to prove the essential elements of each
    offence beyond a reasonable doubt.

[77]

Counsel for Ms. Romain focuses on the trial
    judges use of the phrase you may find direct participation in the frauds
    alleged.  He submits that the trial judge wrongly instructed the jury that Ms.
    Romains presence in the boiler room when it was operating was direct evidence
    of her participation in the frauds.

[78]

It is unclear whether the trial judges
    reference to evidence of direct participation in the frauds was meant to be a
    reference to direct evidence as contrasted with circumstantial evidence. 
    Clearly, Ms. Romains presence in the boiler room, armed with a phone and
    surrounded by fraud-related documents, was not direct evidence of her
    involvement in the fraud.  Evidence of her involvement in the fraud could come
    only from inferences drawn from her presence.

[79]

Looking at the charge as a whole, we are
    satisfied that the jury would understand the phrase direct participation to refer
    to participation in the criminal activity at the time of the police raid and
    Ms. Romains arrest.  Unlike the other appellants, there was evidence that Ms.
    Romain was engaged in the fraud at the moment of her arrest.  In our view, that
    is the distinction the trial judge was drawing in the above-quoted passage. 
    The use of the phrase direct participation, while perhaps unfortunate, would
    not have misled the jury.

[80]

Once again, we note that the trial judge fully
    vetted this charge with counsel.  No objection was taken to the phrase now said
    to have resulted in reversible error.

[81]

It is also significant that the jury acquitted
    Ms. Romain on some counts.  Had they understood that her presence in the boiler
    room on the phone was direct evidence of her participation in the fraud, it is
    difficult to understand how they would have distinguished among the counts as
    they did.

Did the trial judge misstate the
    evidence?

[82]

Detective Lamothe testified that when he
    approached Ms. Romain, she was on the phone.  He testified that he did not know
    what happened to the cell phone she was using.  He did not recall reviewing the
    contents of that cell phone at any time.

[83]

Ms. Romain testified that she dropped her phone
    when the police took her into custody.  She thought she dropped it into her
    purse.  She also testified that later that day, the police provided her with
    her mothers telephone number.  According to Ms. Romain, they could only have
    gotten that number from her cell phone.

[84]

The cell phone was said to be significant to the
    defence because Ms. Romain claimed to be on the phone with a person who could
    confirm that she was at the Whites Road residence to purchase marihuana.

[85]

In the course of reviewing the evidence
    concerning the cell phone, the trial judge twice told the jury the evidence
    from police officers was that the cell phone was not seized.

[86]

The trial judges summary of the police evidence
    is not quite accurate.  They did not testify that the cell phone was not
    seized, but as summarized above, Detective Lamothe testified that he did not
    know what happened to the phone.  In other words, he did not know whether it
    was seized or not.

[87]

Appellate counsel for Ms. Romain describes the
    trial judges misstatement as an egregious and false jury instruction.  Counsels
    language is extravagant and unsupported by the record.  There was extensive
    discussion about this part of the jury instruction in the pre-charge conference. 
    Counsel for Ms. Romain was content with the trial judges language probably
    because it assisted in his attack on the credibility of the police.  On the trial
    judges version of the police officers evidence, counsel could argue that it
    was simply incredible for the police to suggest that they had not seized Ms.
    Romains phone, given the circumstances in which she was arrested.  Counsel
    could argue that the police were lying about not seizing the phone because they
    did not want to produce the phone and the exculpatory phone records.

[88]

Even if trial counsels acceptance of the trial
    judges proposed language was not a calculated tactical decision, we reject
    this ground of appeal on another basis.  The jury was told that the facts were for
    them and it was their recollection of the evidence that counted.  A single
    factual error in a lengthy jury instruction will seldom, if ever, justify quashing
    the verdicts returned by a jury.  Certainly the relatively minimal difference
    between a completely accurate instruction  there is no evidence from the
    police that they seized Ms. Romains cell phone  and the instruction actually
    given  the cell phone was not seized by the police  would not warrant
    interference with the verdicts.

Are Ms. Romains convictions
    unreasonable?

[89]

The case for the Crown against Ms. Romain
    consisted of:

·

her arrest in the middle of an ongoing boiler room operation
    connected to the fraudulent scheme; and

·

her fingerprints on eight of the documents relating to the fraudulent
    scheme found in that boiler room.  All of the documents were related to the
    frauds.  One was the actual script used to induce victims to make the
    investments.

[90]

In our view, the evidence provided an ample
    basis upon which a reasonable jury could convict Ms. Romain on the charges on
    which she was convicted.

[91]

Ms. Romain did testify.  The trial judge gave a
    careful and accurate explanation to the jury as to how they should approach her
    testimony.  Clearly, the jury were satisfied that Ms. Romains testimony,
    considered in the context of the rest of the evidence, did not leave any doubt
    as to her involvement in the scheme.  We observe that even if the jury believed
    that Ms. Romain was at the Whites Road boiler room to purchase and smoke
    marihuana, that is not necessarily inconsistent with the Crowns claim that she
    also worked in the boiler room located at the location.  The jury could
    accept, or at least not reject, significant parts of Ms. Romains evidence and
    still be satisfied beyond a reasonable doubt that she was a participant in the
    scheme.

[92]

In our view, it cannot be said that Ms. Romains
    convictions are unreasonable.

the appellant mr. jacks appeal

Did the nature of the charges
    unfairly prejudice the appellant, Mr. Jack?

[93]

Counsel for Mr. Jack submits that, in reality,
    this was a case about many discrete fraudulent transactions involving
    individual victims, most of whom were defrauded of less than $5,000.  He
    submits that the Crown artificially and deceptively charged a number of
    frauds over $5,000 by grouping the charges according to the identity of the fictitious
    lender, an irrelevant factor, and identifying the victim, not as the individual
    borrowers, but as the public.  Counsel submits that all of this deception was
    in aid of creating an offence that would fall within the definition of serious
    offence for the purposes of the criminal organization charge in count 1.

[94]

Trial counsel raised no objections to the
    indictment or the form of the charges at any stage of the trial.  Nor did he
    raise any of the complaints now made by counsel on appeal.  At trial, Mr. Jack
    advanced one defence and one defence only  he was not involved in what he readily
    acknowledged was a large-scale telemarketing fraud operation.

[95]

We do not accept counsels submissions.  The
    frauds alleged and proved by the Crown fell squarely within the kind of fraudulent
    scheme that has always been charged as a fraud on the public.  The scheme
    targeted a segment of the public at large, as opposed to specific individuals
    identified as targets before the scheme was implemented. The schemes goal was
    to cheat anyone who answered the ads and called the boiler rooms.  There is
    nothing deceptive or prejudicial in describing the victims of this fraud as the
    public.  Indeed, to describe the frauds alleged and proved by the Crown as a number
    of individual frauds against individual victims would mis-describe the nature
    of the fraudulent scheme and significantly understate its seriousness.

[96]

We also see no difficulty with the Crown
    particularizing the charges by reference to the various fictitious companies
    identified as the lenders.  It may be that the Crown could have laid a single
    overarching fraud and conspiracy charge, or that it may have organized the
    charges in other ways.  The approach taken by the Crown, however, potentially made
    the case more manageable for the jury.  We see no basis upon which it could be
    said that, by laying a separate charge in respect of each fictitious company, the
    Crown somehow put Mr. Jack in a worse position than he would have been had the
    Crown laid a single global fraud and conspiracy charge.  Mr. Jack had no
    difficulty pleading to and defending the charges as particularized.

[97]

Finally, there is no merit to the submission
    that it is somehow unfair to convict Mr. Jack of frauds over $5,000 when many
    individual victims were defrauded of less than $5,000.  This argument assumes
    there was some merit to the submission that the fraud was mis-described as a
    fraud on the public.  There was not.  As we are satisfied that Mr. Jack was
    properly charged with frauds over $5,000 and conspiracies to commit fraud over
    $5,000, it follows that the submission that the charge in count 1 is somehow
    contrived must fail.

Did the trial judge err in
    admitting the Agreed Statement of Facts tendered by all counsel?

[98]

At the request of all counsel, including counsel
    for Mr. Jack, the trial judge admitted a document setting out the outcome of
    the charges against other persons referred to in the evidence.  Five of those
    individuals had pled guilty to fraud or conspiracy to commit fraud and the
    charges had been withdrawn against two.

[99]

All counsel, including counsel for Mr. Jack,
    worked to produce the Agreed Statement of Facts.  Obviously, counsel did not
    want the jury wondering about what might have happened to some of the other
    named conspirators.  Each counsel no doubt had specific tactical reasons for
    the admissions.  There is no suggestion that Mr. Jack did not receive effective
    and competent legal assistance.

[100]

The trial judge cautioned the jury against using the convictions of
    others in determining the guilt of individual appellants.  She gave that
    caution both when the Agreed Statement of Facts was admitted and during her
    charge.  In her charge, she added the caution, a person who pleads guilty may
    have had any number of reasons for pleading guilty.   The trial judges
    instructions adequately cautioned the jury against any misuse of the
    information provided in the Agreed Statement of Facts.

[101]

We do not see how we can hold that the trial judge erred in
    admitting into evidence an Agreed Statement of Facts, absent some suggestion
    that by agreeing to those facts counsel did not provide competent
    representation.  For this court to go behind the Agreed Statement of Facts and
    counsels tactical decisions, absent a claim of ineffective assistance, would
    be to severely undermine counsels independence and the overall credibility of
    the trial process.

The instruction on potential
    liability under section 21(2)

[102]

The trial judge instructed the jury on the operation of s. 21(2) of
    the
Criminal Code
.  She told the jury that if
    an accused had agreed with another or others to commit a fraud under $5,000,
    and one or more of the people in the agreement committed a fraud over $5,000 in
    the course of carrying out the agreement, the accused would be guilty of fraud
    over $5,000 if that accused knew or should have known that one of the other
    parties to the agreement would commit fraud over $5,000 in the course of pursuing
    the common objective.

[103]

There was no objection to the charge.  The instruction assumes that
    fraud over $5,000 and fraud under $5,000 are discrete offences.  The language
    of s. 380 of the
Criminal Code
and this
    courts judgment in
R. v. Bernard
, [2013] ONCA
    371 suggest otherwise.  The language used in s. 380 suggests there is one crime
     fraud.  The amount of the fraud is relevant to jurisdiction (the amount
    alleged in the charge) and penalty (the amount proved by the Crown).

[104]

We need not decide whether fraud over $5,000 and fraud under $5,000
    are two distinct crimes.  On the evidence, there was no realistic basis upon
    which a jury could conclude that Mr. Jack had entered into an agreement to
    defraud the public, but only of an amount less than $5,000.  The fraudulent
    scheme alleged and proved by the Crown was to defraud any member of the public
    who could be induced through various misrepresentations to pay one or more advance
    fees.  The amount of the fraud contemplated by the agreement was the total amount
    the fraudsters could eventually induce members of the public to advance to them.

[105]

The instruction on s. 21(2) was unnecessary, but not prejudicial.

The trial judges review of the
    evidence against Mr. Jack

[106]

Counsel for Mr. Jack accepts that the fingerprint evidence
    incriminating Mr. Jack could reasonably justify his conviction on the counts on
    which he was found guilty.  Counsel also accepts that the trial judge
    accurately reviewed the fingerprint evidence.  Counsel contends, however, that
    the trial judge erred in leaving other evidence with the jury as potentially
    confirmatory of the Crowns case against Mr. Jack.

[107]

The trial judge left three pieces of evidence with the jury as
    relevant to their determination of whether the Crown had proved Mr. Jacks
    guilt.  First, the trial judge referred to the evidence that Mr. Jack was seen
    at the Whites Road boiler room on the day the search was executed.  Second,
    she referred to the name Jack which appeared on a document relating to the
    fraud.  Mr. Jacks fingerprints were found on other documents relating to the
    same fictitious lender.  Third, the trial judge referred to the evidence that
    Mr. Jack listed his address on his drivers licence as the same address as Tawnya
    Neil, one of the alleged co-conspirators.

[108]

There was no objection to the trial judges treatment of the
    evidence.  In her charge, she had given a detailed summary of the purported identification
    evidence.  That summary no doubt brought home to the jury the weakness of the
    supposed identification evidence.  It amounted to little more than evidence
    that someone looked like Mr. Jack.

[109]

The other evidence, the name Jack on the document and the residence
    shown on his drivers licence, had relatively little probative value, although
    the nickname was connected in the evidence to documentation relating to a
    victim named Marianne Shipley.  Mr. Jacks fingerprints were also found on a
    document relating to that same victim.

[110]

We are not convinced that the trial judge should have withdrawn the
    impugned evidence from the jury, especially in the absence of any request that she
    do so.  The Crown made only brief reference to the evidence in its
    submissions.  The trial judges instructions to the jury also made little reference
    to this evidence.  The case for the Crown and the case for the defence were put
    to the jury, as they should have been, largely on the basis of the fingerprints
    and the inferences, if any, the jury should draw from those fingerprints.  The
    trial judges brief reference to other bits of evidence relevant to the case
    against Mr. Jack gave that evidence the minor role it deserved.

conclusion

[111]

The conviction appeals are dismissed.  Mr. Jacks sentence appeal is
    dismissed as abandoned.

Released: DD  JUN 21 2016

Doherty J.A.

H.S. LaForme J.A.

G.T. Trotter J.A.





[1]

The term boiler room refers to a location used by a group of
    telemarketers to sell various products over the telephone using dishonest and
    high pressure tactics.


