



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawlor, 2021 ONCA 692

DATE: 20211007

DOCKET: C63960

Fairburn A.C.J.O., Doherty and
    Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Linda Lawlor

Appellant

Amit Thakore, for the appellant

Andrew Hotke, for the respondent

Heard and released orally:
    October 4, 2021 by video conference

On appeal from the conviction entered by
    Justice B.A. Allen of the Superior Court of Justice on June 30, 2016 and the
    sentence imposed on June 30, 2017.

REASONS FOR DECISION

[1]

After a trial by judge alone, the appellant was
    convicted of one count of fraud over $5,000. She received a conditional
    sentence of two years, less a day and was ordered to pay a fine in lieu of
    forfeiture of $603,437. The appellant was given 20 years to pay the fine and,
    in default, a three-year penitentiary sentence.

[2]

The appellant appeals conviction and, if leave
    is granted, appeals from the fine in lieu of forfeiture portion of her
    sentence.

Background

[3]

The appellant and a co-accused were charged with
    several offences relating to transactions involving eight different properties
    owned by the co-accuseds elderly father. At the conclusion of the preliminary
    inquiry, the presiding judge indicated the co-accused would be committed for
    trial with respect to each of the eight properties. The appellant, however,
    would be committed for trial only in respect of the property on St. Clair
    Avenue.

[4]

The appellant and the co-accused eventually
    proceeded to trial in the Superior Court on a single-count indictment, alleging
    fraud over $5,000. The timeframe in the indictment captured all eight
    transactions, but the indictment contained no particulars and made no reference
    to any specific property.

[5]

The trial proceeded. The Crown led evidence in
    respect of all eight transactions. No one objected. The co-accused testified.
    The appellant did not.

[6]

It would appear that counsel and the trial judge
    proceeded on the basis that all of the evidence was admissible against both the
    appellant and the co-accused, and that the allegation against the appellant encompassed
    all eight properties.

[7]

The case against the appellant on the St. Clair
    Avenue property was straightforward. She accessed the land titles system using
    a personal security licence (PSL) she had initially obtained while working as
    a legal assistant in a law firm. The appellant transferred ownership of the St.
    Clair Avenue property from the co-accuseds elderly father to the co-accused
    and another person. The co-accused had the same last name as his father. The
    father had no knowledge of the transfer until years later.

[8]

Within about a month of the fraudulent transfer
    of the property, a mortgage in the amount of about $355,000 was placed on the
    St. Clair Avenue property. A second mortgage in the amount of about $250,000
    was placed on the property a year later. Proceeds from those mortgages went
    into a corporate bank account controlled by the appellant and two others.

[9]

The trial judge was satisfied the appellant knew
    she had no authority to transfer the St. Clair Avenue property from the true
    owner to her co-accused and another party. That transfer clearly put the
    fathers economic interests at risk, resulting in deprivation.

[10]

The trial judge was also satisfied the appellant
    appreciated the consequences to the economic interests of the father brought
    about by the dishonest transfer of the ownership of the St. Clair Avenue
    property: see Reasons for Judgment, at paras. 173-79.

The Conviction Appeal

[11]

In her reasons for judgment, the trial judge proceeded
    on the basis that the appellant could be convicted if the Crown proved her
    fraudulent involvement in any of the transactions. On the evidence, the
    appellant had some involvement in properties on Harwood Avenue and Ruden
    Crescent, as well as the St. Clair Avenue property. In reference to 200 Harwood
    Avenue, the trial judge described the appellants involvement as minimal. The
    trial judge indicated the appellant had a more significant connection with the
    Ruden Crescent property. However, the trial judge expressly indicated her conviction
    of the appellant rested on the appellants involvement with the St. Clair
    Avenue property and the trial judges conclusion that her involvement
    established her guilt on a charge of fraud over $5,000 beyond a reasonable
    doubt.

[12]

After the trial judge released her reasons
    convicting the appellant, the appellant, represented by new counsel, sought a
    mistrial on the basis that the trial judge had misunderstood the nature of the
    charge against the appellant. Counsel argued that the appellants lawyer, the
    trial judge, and the Crown had mistakenly proceeded on the basis that the
    appellant could be convicted based on her involvement with any of the
    properties. In fact, argued the accused on the mistrial motion, while the case
    against the co-accused related to all properties, the appellant could only be convicted
    in respect of the St. Clair Avenue property. In advancing this submission, the
    appellant relied on the terms of the committal for trial.

[13]

On the motion for a mistrial, counsel argued
    that a mistrial was the only appropriate remedy, specifically rejecting the
    Crown suggestion that the evidence could be reopened to allow the defence to
    call any evidence it may not have called because of the misunderstanding as to
    the nature of the charge against the appellant.

[14]

The trial judge dismissed the motion for a
    mistrial.

[15]

The appellant renews the arguments that were
    rejected by the trial judge. She contends the misapprehension of the scope of
    the evidence led to the admission of evidence that was inadmissible against her.
    The appellant also submits that the misapprehension of the nature of the charge
    caused her to lose the right to make properly informed decisions as to the
    conduct of her defence.

[16]

We reject those submissions for three reasons.
    First, it is clear the conviction rested on the trial judges finding in
    respect of the St. Clair Avenue property. The evidence in respect of that
    property was overwhelming. The appellant transferred ownership with no
    authority and within a month found herself in possession of the proceeds of a substantial
    mortgage placed on the property. No explanation was ever offered.

[17]

Not only did the trial judge make it clear that
    the conviction rested on the evidence relating to the St. Clair Avenue
    property, she also made it clear the evidence in respect of the other
    properties could not support a conviction.

[18]

Second, the limited evidence of the appellants
    involvement in transactions involving two of the other properties, particularly
    the Ruden Crescent property, was admissible to show the existence of the
    relationship between the appellant and the co-accused, specifically in relation
    to transactions involving the property of the co-accuseds elderly father.
    There is nothing in the reasons to suggest that the trial judge misused the
    evidence in respect of the appellants involvement in the other properties.

[19]

Third, while the appellant submits the
    misunderstanding as to the nature of the charge deprived her of the right to
    make certain informed choices, she offers no specifics, either in the affidavit
    filed on the mistrial application, or in her former trial lawyers affidavit in
    support of that position. The appellant argues that counsels advice to her
    during the trial was guided by this misunderstanding. However, the appellant,
    as is her right, has refused to waive client-solicitor privilege, thereby
    making it impossible to evaluate the legitimacy of this claim.

[20]

The St. Clair Avenue property was clearly the
    focus of the Crowns allegation against the appellant. The appellant chose not
    to testify. We see no basis upon which to conclude that choice may have been
    different had she understood the allegations in respect of the St. Clair Avenue
    property were not just the central thrust of the Crowns case, but were in fact
    the entirety of the Crowns case.

[21]

We also see no merit in the argument the trial
    judge failed to allow the defence to reopen the evidence. The defence at trial
    did not seek to reopen the evidence. To the contrary, the defence indicated
    reopening the evidence would not assist. Even after the trial judge made her
    ruling denying the mistrial, she left open the possibility of a defence motion
    to reopen the evidence. The defence made no such motion.

[22]

Finally, nothing has been put before this court
    to suggest what additional evidence may have been led, had the evidence been
    reopened, that could possibly have made any difference to the outcome of the
    charge as it related to the St. Clair Avenue property.

[23]

The conviction appeal is dismissed.

The Sentence Appeal

[24]

The appellant had control over funds obtained as
    a result of the fraudulent mortgages placed on the St. Clair Avenue property
    and deposited into the corporate account. Two other individuals also had
    signing authority over that account. The charges against both were withdrawn in
    the Provincial Court.

[25]

We reject the submission that the appellant had
    less than total control over the funds in the account. The fact that others had
    signing authority does not diminish the appellants control over the funds.

[26]

The appellant argues that the fine in lieu of
    forfeiture should have been limited to the amount that could actually be traced
    into the appellants pocket. The quantum of a fine in lieu of forfeiture is not
    limited to the amount of the benefit actually obtained. Once the sentencing court
    decides a fine in lieu of forfeiture should be imposed, the amount of the fine
    is equal to the value of the property over which the offender has the
    requisite control: see
R. v. Piccinini
, 2015 ONCA 446, at para. 18.

[27]

Given the factual finding by the trial judge
    that the co-accused had no control over the funds generated by the fraudulent
    mortgages placed on the St. Clair Avenue property, the appellant could not look
    to the co-accused to pay some part of the fine ordered in lieu of forfeiture:
    see
R. v. Dieckmann
, 2017 ONCA 575, at para. 100.

[28]

Leave to appeal sentence is granted, but the appeal
    is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


