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COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balfour, 2017 ONCA 832

DATE: 20171031

DOCKET: C60248

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Travis Balfour

Appellant

Mark Halfyard, for the appellant

Jennifer McKee, for the respondent

Heard and released orally: October 26, 2017

On appeal from the conviction entered on September 5,
    2014 by Justice David Salmers of the Superior Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

Mr. Balfour appeals his conviction for fraud. At trial he admitted to
    dishonest acts. The issue for the trial judge was whether Mr. Balfour had the
    necessary
mens rea
. The trial judge concluded that he did.

[2]

On appeal, Mr Balfour makes two main submissions. First, he submits the
    trial judge erred in treating his evidence about the remuneration scheme as hearsay
    evidence when the defence led this evidence to show Mr. Balfours state of
    mind.

[3]

We do not accept this submission. The defence led the evidence about
    what the two managers said to Mr. Balfour for two purposes: a hearsay purpose
    to show in fact that the remuneration scheme existed; and, a non-hearsay
    purpose to show that Mr. Balfour did not have the
mens rea
for fraud.

[4]

Even though the trial judge had concerns that the evidence may had been
    inadmissible for a hearsay purpose, nonetheless he considered it as it was
    essential to Mr. Balfours defence. The weight to be given to this evidence
    was for the trial judge to determine. We therefore decline to give effect to
    this submission.

[5]

Secondly, Mr. Balfour submits the trial judge erred in relying on the
    Crowns suggestion in cross-examination that if Mr. Balfour wanted to establish
    that a remuneration scheme existed he should have called the other two managers
    as witnesses. Mr. Balfour relies on this courts judgment in
R. v. John
,
    2016 ONCA 615, which affirms the fundamental proposition that an accused does
    not have to prove his innocence. We do not agree with this submission.

[6]

In the circumstances of this case, we see no error. One of the managers,
    Mr. Block, testified and denied the existence of any remuneration scheme. The
    trial judge was, thus, entitled to note the absence of any evidence affirming
    the scheme from the other two managers.

[7]

As we find no error in the trial judges reasons its unnecessary to
    consider the proviso. The appeal is dismissed.

John
    Laskin J.A.

K.
    Feldman J.A.

R.A.
    Blair J.A.


