



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vidinovski, 2020 ONCA 433

DATE: 20200702

DOCKET: C66569

Doherty, MacPherson and Benotto
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Suzana Vidinovski

Appellant

Grzegorz Dorsz, for the appellant

Jerry Brienza, for the respondent

Heard: in writing

On appeal from the convictions entered
on June 26, 2018 by Justice Alfred J. OMarra of the Superior Court of Justice,
sitting with a jury.



REASONS FOR DECISION

[1]

Following a trial before OMarra J. sitting with
a jury, the appellant was convicted of three charges of fraud over $5,000 and
four charges of uttering forged documents. She received a sentence of 18 months
custody followed by probation. The appellant appeals the conviction.

[2]

The complainant, Linda Sargeant, owned a real
estate brokerage, Core Realty Group Inc. In 2011, Ms. Sargeant hired the
appellant as a general office worker. The appellant impressed her employer and
was soon given increased duties. Before long, the appellants duties included
many of the financial functions of the office. She managed the Accounting and
Trade Record System, created employee paycheques, paid bills, and managed
deposits into the companys various bank accounts.

[3]

In October 2014, Ms. Sargeant decided to
terminate the appellant. At about the same time, she became suspicious of the
appellants management of some of her financial duties. After her own
investigation, the police became involved and the appellant was charged.

[4]

The appellant was convicted of defrauding the
business in three ways:

·

By generating additional payroll cheques and
forging Ms. Sargeants signature on them, then depositing the money into two
personal accounts;

·

By forging letters of direction on the companys
letterhead authorizing the companys bank to provide her with money orders made
out to Metcap Living Management, her landlord; and

·

By creating and depositing cheques, again with a
forged signature, labelled as petty cash, but drawn from the general account.

[5]

The appellant advances three grounds of appeal.

[6]

First, the appellant contends that the trial
judge erred by failing to grant a mistrial application made by her trial
counsel in response to extremely inflammatory comments by the complainant
during re-examination.

[7]

The impugned comments occurred in this exchange
during the re-examination of the complainant:

Q.  Ms. Sargeant, you were asked some
questions in cross-examination about whether you had made romantic advances to
Ms. Vidinovski and I saw and again now youre smiling and you smiled when you
answered some of those questions and can you just explain why youre smiling?

A. Well for many reasons, it makes me
emotional because its very hurtful. Im in a very loving relationship that I
honour. I was nothing but fair to Suzana. And I think that you know everybody
has a son, everybody has a daughter, everybody has a friend and I think to pull
the gay card for an excuse for very bad invasive behaviour (indiscernible) I
dont publicize my life for people. I think that its just a dreadful out for
people to do that and you know here we are today, were all decent people and
were in the me too environment and I think that things like that being
thrown around so frivolously in a courtroom when someone is alleged to have
done this type of thing to me is absolutely abhorrent on behalf of a young
lawyer that I think should go to the validity of the case and whats before the
courts and people like you versus that sort of attack with someone like me. It
is visceral. I have in the  and people can search this on the internet if they
want, yeah its abhorrent. I set precedence in Canadian law for bad behaviour
with a company about poisonous work environment and sexual harassment and I
would be the last person to tolerate that in my office. Its abhorrent.

[8]

Shortly after, defence counsel asked the trial
judge to instruct the jury about this alleged attack. After the lunch break,
defence counsel asked for a mistrial. He said that these comments tainted his
clients defence because the complainant had accused him of using the gay
card. On appeal, the appellant contends that the trial judge erred by not
declaring a mistrial.

[9]

We do not accept this submission. The trial
judge carefully questioned defence counsel and then gave this mid-trial instruction
to the jury:

Ladies and gentlemen, before continuing with
the witness who was giving evidence earlier there are two instructions I wish
to give you concerning matters raised in re-examination by Ms. Sargeant.



The other matter is that Ms. Sargeant commented
about defence counsel raising a certain issue that she, with respect to a
suggested romantic interest in the accused that she found personally abhorrent.
Counsel, as defence counsel, is obligated indeed counsel is duty bound to
advance vigorously any defence theory and indeed it is not improper to have
done do. In fact it is expected of defence counsel to do so.

[10]

In
R. v. Burke
, [2002] 2 S.C.R. 857,
the Supreme Court of Canada said that a mistrial should only be used to prevent
a miscarriage of justice and, at para. 75, the trial judge is in the best
position to assess the circumstances of each individual case and select the
most appropriate remedy. We see no error in how the trial judge handled the
mistrial application in this case.

[11]

Second, the appellant submits that the trial
judge erred by dismissing her
Corbett
application to exclude any
reference to her previous criminal record: see
R. v. Corbett
, [1988] 1
S.C.R. 670.

[12]

The appellant had been previously convicted of
fraud offences, but more than 20 years ago. The trial judge decided to allow
the jury to know of these previous convictions, but he also provided the jury
with a strong caution.

[13]

In
R. v. R.D.
, 2019 ONCA 951, at para.
13, this court said that deference is owed to a trial judges determination of
a
Corbett
application.  We see no reason to interfere with the trial
judges analysis and conclusion on the
Corbett
issue in this case.

[14]

The defence made the credibility of the
complainant a central issue at the trial. As explained by the trial judge in
his
Corbett
ruling:

I consider in the
balance as well the nature of the defence advanced in this trial, which has
been a concerted attack on the credibility of the complainant, Linda Sargeant,
the owner of the realty company alleged to have been defrauded by the
applicant. It is alleged that the complainant has fabricated the fraud
allegations to prevent the applicant from pursuing a sexual harassment
complaint.

[15]

In this context, the trial judge was entitled to
permit the jury to know about the previous fraud conviction. Importantly,
however, the trial judge also reminded the jury that the previous conviction
was in 1994, well before the events that gave rise to the current charges. He
also emphatically warned the jury that just because the appellant had committed
fraud in the past did not mean that she was guilty of committing the same
offence now.

[16]

Third, the appellant asserts that the trial
judge delivered an unbalanced and unfair jury charge.

[17]

There is no basis for this claim. The trial
judge gave a balanced charge, both quantitatively and qualitatively. In
particular, the trial judge highlighted some of the main issues in the
appellants position, especially difficulties with the complainants testimony.
The jury charge was balanced and fair. Although the trial judge did not follow
the common and desirable practice of reviewing his proposed jury charge with
counsel before delivering it, we cannot say that this casts doubt on this
conclusion.

[18]

The appeal is dismissed.

Doherty
J.A.

J.C.
MacPherson J.A.

M.L.
Benotto J.A.




