



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacLeod, 2020 ONCA 596

DATE: 20200922

DOCKET: C64970

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheryl MacLeod

Appellant

Cheryl MacLeod, acting in person

Amy Ohler, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: September 9, 2020 via
    videoconference

On appeal from the conviction entered by
    Justice Braid of the Superior Court of Justice, dated October 30, 2017, and the
    sentence imposed on April 3, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of a number of
    counts of fraud over $5000, fraud under $5000, and utter a forged document. She
    received a three-year custodial sentence. This is an appeal from conviction and
    sentence.

[2]

The appellant owned and directed CTC Payroll
    Services Inc. (CTC). CTC would withdraw funds from its clients bank accounts.
    The funds would be held in trust until such time as they could be paid out to
    the clients employees for wages earned or remitted as payment for, among other
    things, taxes owing. CTC was to keep a small fee for services rendered.

[3]

The trial judge found that the appellant fraudulently
    withdrew more money from her clients accounts than she was authorized to take,
    failed to perform the services she was supposed to perform, and used a good
    deal of her clients money for her own personal purposes. Indeed, a documentary
    record demonstrates that the CTC trust account was used to make personal
    purchases for the appellant. The fraud resulted in actual losses of over
    $350,000 to the appellants clients.

[4]

The appellant testified at trial, providing her explanation
    as to why over-deductions had been made. She also pointed the finger at a past
    employee, suggesting that the employee was responsible for the missing funds.

[5]

In lengthy reasons for judgment, the trial judge
    explained why she outright rejected the appellants evidence, concluding that
    it defied common sense and directly conflicted with the documentary evidence
    that demonstrated the fraudulent trail. As the trial judge noted, the
    appellants evidence also conflicted with the other
viva voce
evidence
    at trial, which evidence the trial judge gave reasons for accepting as
    credible. These credibility findings are owed deference on appeal.

[6]

The appellant argues that the trial judge erred
    in numerous respects.

[7]

First, the appellant maintains that the trial
    judge applied a stricter standard of scrutiny to her evidence than that of the
    Crowns witnesses. We do not agree. The reasons for judgment suggest no
    imbalance. The trial judge explained all of her credibility findings, most of
    which rest on a documentary foundation.

[8]

Second, the appellant argues that her mode of
    trial was changed unilaterally by her counsel and that she did not give any
    instructions in that regard. In particular, during oral submissions, the
    appellant raised that her trial counsel had changed the mode of trial from a
    jury to a judge alone trial without any consultation. In the written materials
    filed on appeal, the appellant also suggests that the she did not know that her
    counsel would concede committal at the preliminary inquiry, using it instead
    for discovery purposes.

[9]

We have no credible evidence on appeal that
    supports the claim that, without instructions, the appellants trial counsel
    changed her mode of trial from a jury to a judge alone trial. As for the
    concession on committal, contained in the extensive fresh evidence record on
    appeal is the appellants trial counsels denial that he consented to committal
    without having first consulted with the appellant. We accept his evidence on
    this point. He discussed this very issue with the appellant and explained to
    her the very low threshold for committal. He also explained that there was no
    realistic basis to argue against committal. Having regard to the strength of
    the Crowns case, that was an entirely reasonable position and one that we find
    the appellant was alive to. We accept trial counsels evidence in this regard
    and see no merit to this ground of appeal.

[10]

Third, the appellant claims for the first time on
    appeal that her s. 11(b)
Charter

rights were infringed. She says that her
    trial counsel was incompetent in failing to bring an application for a stay of
    proceedings arising from unreasonable delay. While the total time from charge
    to the end of trial is above the 30-month ceiling, this case was in the system
    long before
R. v. Jordan
,
2016 SCC 27 was released. Accordingly,
    this was a transitional case.

[11]

The record in this case does not support the
    suggestion of unreasonable delay, especially given the transitional zone within
    which the case sits. The appellant accepts that a period of time would be
    calculated as defence delay under
Jordan
.
That amount of time
    is not clear on the record. In any event, given that this is a transitional
    case, the lack of a record upon which the allegation of delay rests, the nature
    of the prosecution and complexities involved, and the lack of any record
    suggesting prejudice, there is no traction in this ground of appeal.

[12]

Fourth, the appellant maintains that there has
    been improper non-disclosure in this case. We do not give effect to this ground
    of appeal.

[13]

It is true that the trial Crown did not disclose
    a body of bank records at trial. Those records have now been disclosed on
    appeal. While the Crown has a duty to disclose all relevant, non-privileged
    information in its possession or control, a conviction will not be set aside on
    appeal because of a failure to disclose unless there has been a breach of the
    right to make full answer and defence. This requires the appellant to
    demonstrate that there is a reasonable possibility that the non-disclosed
    information affected the outcome at trial or the overall fairness of the trial
    process:
R. v. Dixon
, [1998] 1 S.C.R. 244 at para. 34
.
This
    threshold test has not been met for the following reasons:

(a)
the trial Crown disclosed the fact that the records existed well in
    advance of trial;

(b)
the trial Crown made the records available to the defence should
    they wish to see them;

(c)
the defence did see them;

(d)
no disclosure application was brought;

(e) the appellant repeatedly told her counsel
    that she did not need to review those records and discouraged him from doing
    so; and

(f) the appellant has now been in possession
    of the records for almost a year and points to nothing in them of an
    exculpatory nature, nor anything that could have impacted on her defence.

[14]

In short, even if the records should have been
    physically placed in the appellants hands prior to trial, there is no
    reasonable possibility that they would have impacted the outcome of the trial.
    Nor was the fairness of the proceedings adversely impacted by the Crown
    proceeding as it did:
Dixon
, at paras. 34-39;
R. v. Pascal
, 2020
    ONCA 287 at para. 136.

[15]

Fifth, the appellant argues that her trial
    counsel provided ineffective assistance. There is a strong presumption in
    favour of counsels competence. In order to succeed on this ground of appeal,
    the appellant must show that counsels conduct fell outside of the wide range
    of what constitutes reasonable professional assistance and that it resulted in
    a miscarriage of justice:
R. v. Joanisse
, [1995] O.J. No. 2883 (C.A.)
at paras. 69-81;
R. v.
    Stark
, 2017 ONCA 148 at paras. 10-15.

[16]

Having regard to the entire record in this case,
    including the fresh evidence on appeal, we see nothing to suggest that counsel
    fell outside of the range of expected reasonable professional assistance.
    Moreover, this was a strong Crown case that was proven largely on the back of documentary
    evidence. It cannot be said that there has been a miscarriage of justice.

[17]

The appellant was sentenced to three years in
    custody. She seeks leave to appeal sentence on the basis that this is a
    demonstrably unfit sentence. She argues that she should have received a conditional
    sentence. We do not agree.

[18]

The appellants fraud involves a serious breach
    of trust with over $350,000 in actual losses to her clients. The fraud occurred
    over a long period of time.

[19]

The trial judges reasons are balanced. She had
    regard to all aggravating and mitigating factors. We would defer to the trial
    judges determination on sentence:
R. v.
Friesen
, 2020 SCC 9 at
    paras. 25-29.

[20]

While the appellant raises some recent and
    serious health issues she and her spouse have been experiencing, this is a matter
    that falls within the responsibility of the custodial authorities.

[21]

The appellant also challenges the restitution
    order on the basis that it is excessive and futile, requiring her to pay
    money that was stolen by her employee. We agree with the respondent that this
    argument rests on an attempt to relitigate the conviction appeal. Again, the
    trial judge explained her credibility findings, specifically rejecting the appellants
    evidence on this point. This ground of appeal must also fail.

[22]

The conviction appeal is dismissed. Leave
    to appeal sentence is granted, but the sentence appeal is dismissed, except to
    the extent of setting aside the victim fine surcharge.


Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


