R. v. deKock (C.R.), 2009 ABCA 225

• Judge: Côté, McFadyen and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 06, 2009
• Citations: 2009 ABCA 225;(2009), 454 A.R. 102 (CA)

R. v. deKock (C.R.) (2009), 454 A.R. 102 (CA);

      455 W.A.C. 102

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.062

Her Majesty the Queen (respondent) v. Carl Rudolph deKock (appellant)

(0803-0271-A; 2009 ABCA 225)

Indexed As: R. v. deKock (C.R.)

Alberta Court of Appeal

Côté, McFadyen and Watson, JJ.A.

June 16, 2009.

Summary:

The Alberta Provincial Court, in a decision reported at [2008] A.R. Uned. 561, found the accused guilty of theft and fraud related charges which arose from his business dealings between December 2005 and December 2006. The accused appealed from the convictions.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law Topic 57

Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - The accused had been in the business of selling boats and accessories - He was convicted of theft and fraud related charges which arose from his business dealings - The accused appealed, arguing that the trial judge either reversed the burden of proof or at least lightened it for the Crown in the manner in which he dealt with inferences - In particular, the accused suggested that the trial judge inferred guilt from the accused's decision not to testify - In his reasons, the trial judge had stated that "it should have been easy for [the accused] to provide proof either from his own records or from those of his suppliers that the things in issue had indeed been ordered" and "if there was a plausible explanation for the lies [the accused] apparently told his customers, he was the only one who could realistically provide it" - The accused argued that these passages meant that because the accused did not testify and "explain" his actions, inferences of criminal actus reus or mens rea should be drawn - The Alberta Court of Appeal stated that "The trial judge was not using the appellant's right to silence as judicial make-weight. He was simply stating an evidentiary reality given the totality of the evidence. When the trial judge referred to drawing 'inferences adverse to him', we do not read the trial judge as suggesting that one of those inferences was directly from the fact of the appellant's not giving evidence. The inferences he was talking about were inferences from the actual evidence. We see no error in that" - See paragraphs 9 to 15.

Criminal Law Topic 57

Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - The Alberta Court of Appeal stated that "Setting aside situations where the accused has a burden of proof, it is error of law for a trier of fact to use the mere circumstance of the accused's failure to testify as if that circumstance helped prove the accused's guilt beyond a reasonable doubt ... But a trial judge is not automatically using the accused's failure to testify as 'make-weight' merely because, in the course of assessing the evidence on a topic, the trial judge notices that the accused was in a position to shed light on that topic, and that the accused did not do so ... Moreover, a judge trying a case without a jury 'need not speculate about possible defences that might have been offered by the accused had he or she testified' and can say so ... Finally, a trial judge is not reversing the burden of proof or lightening the Crown's burden when the judge finds that, as a matter of reason and common sense, the evidence which does exist justifies inferences absent evidence to the contrary" - See paragraph 12.

Criminal Law - Topic 1645

Offences against property - Theft - Elements - Intention or mens rea - [See Criminal Law - Topic 2003 ].

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - [See Criminal Law - Topic 2003 ].

Criminal Law - Topic 2003

Fraudulent transactions - Fraud - Intent to defraud - The accused conducted his business of selling boats and accessories on a lot he shared with Lubeck - The accused experienced financial difficulties and a number of his customers paid for merchandise which they never received - Others were waiting for payment for merchandise that the accused was to sell for them on consignment - The accused was convicted of theft and fraud related charges arising from his business dealings - The accused appealed, arguing that the verdict was unreasonable as the Crown never proved that the boats were not ordered as promised, that the accused actually used the proceeds to satisfy his creditors at the expense of his customers, and that the accused had the required fraudulent intent at the relevant times - The Alberta Court of Appeal held that the verdict was reasonable - The trial judge considered the accused's conduct and state of mind on the dates indicated in the Information - The evidence supported the inference that the accused was subjectively aware of the real risk that he would not ultimately be able to provide the merchandise; that, in fact, he did not order the merchandise as promised; that he directed money received from his customers or from the sale of consigned goods to other purposes including to repay his creditors at the expense of his customers; and that he converted to his own use rebate money that should have been paid to Lubeck's company - See paragraphs 46 to 51.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See Criminal Law - Topic 5214.4 ].

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - The accused appealed from his convictions on theft and fraud related charges which arose from his business dealings - The accused argued that the essence of the Crown's case was that, based on the totality of the evidence, there was a "pattern" by which the accused was defrauding his customers - While conceding that this was more a "pooled evidence" case than a "similar fact evidence" case, the accused emphasized that the Crown did not formally apply to use "similar facts" across all counts, nor did the accused agree that such a procedure was permissible - The Alberta Court of Appeal rejected the argument - The totality of the evidence was directly relevant to the actus reus and mens rea for each count as context of each event and transaction, without regard to any theory of propensity - The trial judge's reference to a "course of conduct" did not necessarily mean that he was using propensity reasoning - Even if an element of propensity reasoning became involved, in the sense that the trial judge began to see a pattern of behaviour, it was not plain that his doing so would have been improper - Had a voir dire been conducted to address admission of the evidence as "similar fact" analysis such as to indicate a pattern of conduct as well as individual misrepresentations, it was not apparent that a different result would have occurred - The trial judge was entitled to consider the evidence on all counts in the disposition of each count to ascertain the accused's state of mind and economic capacity on each occasion - His analysis did not reveal any error or unfairness - See paragraphs 33 to 45.

Criminal Law - Topic 5220

Evidence and witnesses - Burden of proof - Explanations by an accused - [See both Criminal Law - Topic 57 ].

Evidence - Topic 508

Presentation of evidence - Consent to admission of - Effect of - [See Evidence - Topic 1504 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The accused appealed from his convictions on theft and fraud related charges which arose from his business dealings in selling boats and accessories - The accused challenged the admissibility and use of Exhibit 1 (a binder containing photocopies of documents related to the accused's agreements with the various complainants) and Exhibit 2 (two CD's of the accused's banking records and other documents) - The Crown argued that the evidence was admitted by consent - The accused argued that admission of the records was limited or conditional and that admissibility on hearsay grounds and relevance remained in issue - The Alberta Court of Appeal rejected the accused's argument - First, the accused's trial counsel did not clearly assert any specific exclusionary rule that required the trial judge to vet the documentary evidence involving transactions directly engaged in with the accused for admissibility let alone for the balance of prejudicial effect and probative force - What weight was to be given the documentary evidence, and what inferences could be drawn therefrom once the involved persons talked about that evidence, was at issue, not admissibility - Second, the complainants all testified and gave direct evidence regarding their dealings with the accused - The documentary evidence in Exhibit 1 was not being used in a hearsay fashion when participants to the original paperwork testified - The original documents for which copies were substituted for convenience were admissible as "real evidence" of the understandings and contractual relations with the accused through the testifying complainants who took part in them - That was not a hearsay usage of the documentary evidence - Third, with respect to Exhibit 2, there was clear consent to entering the banking records for the truth of their contents - See paragraphs 16 to 32.

Evidence - Topic 3202

Documentary evidence - Admission - General - Use of - [See Evidence - Topic 1504 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 6].

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; 25 Cr. App. R. 72 (H.L.), refd to. [para. 11].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 11].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 11].

R. v. Becouarn, [2005] N.R. Uned. 118; [2005] 4 All E.R. 673; [2005] UKHL 55, refd to. [para. 11].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 12].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 13].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 13].

R. v. J.T.S., [1997] A.R. Uned. 49 (C.A.), refd to. [para. 13].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 13].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 13].

R. v. Goodstoney (G.E.) (2007), 404 A.R. 60; 394 W.A.C. 60; 2007 ABCA 88, leave to appeal denied (2007), 380 N.R. 400 (S.C.C.), refd to. [para. 18].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 18].

R. v. Glover (K.J.) (2003), 339 A.R. 318; 312 W.A.C. 318; 2003 ABCA 377, refd to. [para. 22].

R. v. Van (D.) (2009), 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 22].

R. v. Mahalingan (R.), [2008] 3 S.C.R. 316; 243 O.A.C. 252; 381 N.R. 199; 2008 SCC 63, refd to. [para. 23].

R. v. Heikel and Sutton (1992), 125 A.R. 298; 14 W.A.C. 298; 72 C.C.C.(3d) 481 (C.A.), refd to. [para. 25].

R. v. Yelle (J.) et al. (2006), 384 A.R. 331; 367 W.A.C. 331; 2006 ABCA 160, refd to. [para. 25].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 26].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 29].

R. v. Nicholson (1984), 52 A.R. 132 (C.A.), leave to appeal denied (1984), 56 N.R. 234; 55 A.R. 240; 12 C.C.C.(3d) 228 (S.C.C.), refd to. [para. 29].

R. v. Ouellette (T.W.) (2005), 371 A.R. 190; 354 W.A.C. 190; 2005 ABCA 282, refd to. [para. 29].

Maitland Capital Ltd. et al. v. Alberta Securities Commission (2009), 457 A.R. 153; 2009 ABCA 186, refd to. [para. 30].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 30].

R. v. Ollis, [1900] 2 Q.B. 758; [1900-3] All E.R. Rep. 733, refd to. [para. 30].

R. v. Z., [2000] 3 All E.R. 385 (H.L.), refd to. [para. 30].

R. v. Duguay (2001), 155 C.C.C.(3d) 407 (Que. C.A.), refd to. [para. 30].

Makin v. New South Wales (Attorney General), [1894] A.C. 57; [1891-4] All E.R. Rep. 24; 17 Cox C.C. 704; 6 R. 373 (P.C.), refd to. [para. 34].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 34].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 39].

R. v. T.B. (2009), 250 O.A.C. 177; 63 C.R.(6th) 197; 2009 ONCA 177, refd to. [para. 43].

R. v. MacCormack (C.J.) (2009), 245 O.A.C. 271; 2009 ONCA 72, refd to. [para. 44].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 47].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 47].

Authors and Works Noticed:

Steusser, Lee, Admitting Acquittals as Similar Fact Evidence (2002), 45 Crim. L.Q. 488, p. 497 [para. 30].

Counsel:

T.L. Couillard, for the respondent;

M.R. Bloos, Q.C., for the appellant.

This appeal was heard on March 6, 2009, before Côté, McFadyen and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the Court of Appeal on June 16, 2009.