



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thornton, 2016 ONCA 562

DATE: 20160712

DOCKET: C59038

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Vincent Thornton

Appellant

Paul Vincent Thornton, acting in person

Louis P. Strezos and Peter Hamm,
amicus curaie

Eric Siebenmorgen, for the respondent

Heard: July 6, 2016

On appeal from the conviction entered on June 19, 2014
    and the sentence imposed on August 21, 2014 by Justice I. André of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of fraud over $5,000 and was sentenced to
    five years imprisonment and ordered to pay $3,414,699 in restitution.

[2]

The background to the conviction is as follows. The appellant was employed
    at the head office of Loblaws Company Limited (Loblaws) from 2001 to 2009.
    During that period, he oversaw the companys Preferred Printers and Rebate
    Program, a program based on services provided by 26 companies. Suppliers in the
    program normally wrote rebate cheques to LBL (Loblaws Brands Limited).
    However, the appellant directed three of the companies to write cheques to
    IBL, a company that was, unbeknownst to the three companies representatives,
    owned by the appellant.

[3]

The appellant deposited rebate cheques into IBLs bank account totalling
    $3,948,301.01. After Loblaws discovered a discrepancy in the rebate amounts it
    had received, it obtained a
Norwich Pharmacal
order for the
    appellants personal banking records and IBLs banking records. It later provided
    the bank records to the police and the appellant was charged with fraud over
    $5,000.

[4]

The appellant argued at trial that his s. 7
Charter

rights
    were violated because Loblaws breached its implied undertaking by obtaining his
    banking records while pursuing a civil action against him and then handing them
    over to the police to be used in a criminal proceeding. The trial judge
    rejected this argument on the basis that the police played no role in initially
    obtaining the records and had a statutory duty to investigate once they
    received the criminal complaint. The trial judge also rejected the appellants
    testimony that he was entitled to the money in question as a commission based
    on a confidential agreement he had with a former vice president of Loblaws.

[5]

The appellant appeals his conviction and the restitution order on the
    following grounds: (1)

the trial judge erred by repeatedly intervening
    in his examination-in-chief, in a manner that prevented him from presenting his
    case in an orderly way and was tantamount to cross-examination; (2)

the
    trial judge erred in failing to properly consider his motion to exclude the
    banking records, given that they were admitted in breach of Loblaws implied
    undertaking; and (3) the trial judge erred by failing to take into account the
    appropriate sentencing principles in awarding restitution in favour of the
    complainant.

[6]

We would not give effect to these arguments.

[7]

We do not view the trial judges interventions as being disruptive or tantamount
    to cross-examination. To the contrary, it is clear from the transcript that the
    trial judge appropriately intervened to clarify confusing testimony and to
    assist the appellant, who was self-represented at trial.

[8]

With respect to the implied undertaking
    argument, the Crown argues that the rule does not apply in the circumstances
    and, in any event, if it did, it was spent when the banking records were filed
    in civil proceedings as part of a
Mareva
injunction. Assuming, without
    deciding, that the implied undertaking rule applies to the banking records and
    that their use by the police and the Crown violated the appellants s. 8
Charter
rights, we would not have excluded the admission of the documents
    under the s. 24(2) analysis mandated by
R. v. Grant
,
2009 SCC 32,
    [2009] 2 S.C.R. 353,
for the following reasons.

[9]

The seriousness of any police misconduct in this case would be very low.
    They took no positive steps to obtain the bank records; rather they were
    passive recipients of records that were or were soon to be in the public record
    in the civil proceedings.

[10]

The impact on the appellants
Charter
-protected interests is
    minimal. While the appellant had an expectation of privacy in relation to the
    bank records, the police ultimately would have been able to get a warrant or
    order to obtain them. Moreover, the bank records were merely confirmatory of
    the cancelled cheques produced to Loblaws by the suppliers who had made cheques
    payable to IBL.

[11]

With respect
to the

truth-seeking function of the criminal trial process, t
here
    is a strong societal interest in an adjudication on the merits.  The records
    are also reliable and objective evidence.

[12]

All of the
Grant
factors militate in favour of admission of the
    records into evidence. In our view, therefore, the records exclusion would
    bring the administration of justice into disrepute.

[13]

We also see no basis to interfere with the restitution ordered to be
    paid by the appellant. There was no dispute at trial regarding the amount that
    had been lost. The appellant only took issue with the Crowns calculation that
    recovery had been made in the amount of $533,601.81. A dispute as to the exact
    amount recovered does not operate as a bar to the making of a restitution order
    because double recovery can be prevented by civil courts requiring a proper accounting
    of all sums recovered.

[14]

For the foregoing reasons, the appeal is dismissed.

Paul
    Rouleau J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


