



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bygott, 2018 ONCA 243

DATE: 20180312

DOCKET: C61693

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Bygott

Appellant

Breana Vandebeek, for the appellant

David Friesen, for the respondent

Heard and released orally: March 7, 2018

On appeal from the conviction entered on September 24,
    2014 and the sentence imposed on February 11, 2016 by Justice William R. Wolski
    of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

The appellant raises four grounds of appeal. The trial judge erred by:

1.

amending the information relating
    to two counts;

2.

relying on cross-count
    reasoning;

3.

refusing his adjournment
    request; and

4.

curtailing the
    cross-examination of a witness.

[2]

For the reasons that follow, we would dismiss the appeal.

[3]

The appellant was convicted on multiple fraud and uttering forged
    document counts. The complainants were defrauded of over half a million
    dollars. Fundamentally, this was a documents case. Each complainant was
    provided a guarantee that their capital investment was secure through a Bank of
    Montreal term investment certificate provided to them by the appellant. The
    trial judge found that these certificates were forged.

[4]

The appellant was self-represented at trial.

[5]

The first issue pertains to the amendment of the information. Counts five
    and eleven were amended part way through trial to include additional
    complainants who were also said to have lost funds.

[6]

As for count five, Jeff Zelikovitz was originally the named complainant.
    He testified about the losses he, his mother and son incurred as a result of
    the fraud. Disclosure of the mother and sons losses, and the use of the same
    fraudulent certificates in relation to these individuals, was made years ahead
    of trial. Weeks ahead of trial, the Crown provided the appellant with document
    briefs, including the documents proving the losses to the mother and son.

[7]

Because count five of the information only referred to Jeff Zelikovitz,
    upon completion of his evidence, the Crown advised that he would seek to amend that
    count to include specific reference to the mother and son. To alleviate any
    potential prejudice arising from this amendment, the Crown agreed to recall
    Jeff Zelikovitz. The appellant then conducted a further cross-examination of
    Mr. Zelikovitz.

[8]

In these circumstances, it was open to the trial judge to conclude that
    there was no prejudice arising from the amendment. We do not agree with the
    appellants submission that the appellant was confused by the amendment and did
    not know how to respond. Nor do we accept that the mother and son had to testify
    in order to prove their losses. Deprivation in this case was proven through the
    documents. Given the disclosure made well in advance of trial and notice having
    been given by the Crown promptly after Jeff Zelikovitzs testimony, we see no
    unfairness arising from this amendment.

[9]

As for count eleven, the appellant conceded at trial that he was not prejudiced
    by this amendment. In our view, that concession was entirely appropriate in the
    circumstances.

[10]

This
    ground of appeal fails.

[11]

The
    second ground of appeal arises from an alleged error by the trial judge in acceding
    to the Crowns request to apply evidence across all fraud counts. The appellant
    argues that he was prejudiced by this approach because, as a self-represented
    person, he did not understand the purport of this evidentiary approach and was
    not in a position to respond appropriately in conducting his defence. We do not
    agree.

[12]

The
    Crown advised the court at the outset of trial that he would be asking the
    court to rely on a cross-count approach. He provided the appellant and the
    court with the cases he would be relying upon to advance this argument. At the
    conclusion of trial, over two months later, the Crown advanced the argument and
    relied upon the authorities he had earlier provided.

[13]

Although
    satisfied that the Crown had proven each of the counts on the evidence
    relating only to that count, the trial judge was also satisfied that a
    cross-count approach could be taken. In light of the documentary nature of the
    evidence in this case  the complainants each receiving the same forged
    certificates  we see no error in the trial judges cross-count approach. In
    the circumstances, we see no prejudice to the appellant. He had ample time to
    prepare for the Crowns argument regarding the application of evidence across
    counts and he received adequate assistance from the trial judge and the Crown.
    In any event, the trial judges findings do not depend on this cross-count
    approach.

[14]

The
    third ground of appeal challenges the refusal to adjourn the trial. Two judges
    dismissed the appellants application for an adjournment. The decisions are
    factually based and sound. Based upon a number of factors, including a long
    history of adjournments, vacating of dates, and changes in counsel, it was open
    to the trial judge to conclude that the appellant was trying to avoid a trial.
    The trial judge also determined that the appellant is an intelligent man, well
    educated, and capable of representing himself. In the circumstances, it was
    open to the trial judge to dismiss the appellants request for an adjournment
    on the eve of trial. We would not interfere with this decision.

[15]

As
    for the final ground of appeal, limiting the cross-examination, this was a
    trial management decision that was well within the discretion of the trial
    judge. We would also dismiss this ground of appeal.

[16]

The
    appellant also seeks leave to appeal against sentence. This courts decision in
R. v. Tinker,
2017 ONCA 552 is dispositive of the issue raised and the
    appellant concedes that, in light of that decision, the appeal cannot succeed.

[17]

The
    conviction and sentence appeals are dismissed.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A.


