R. v. Park (S.J.), (2009) 465 A.R. 1 (QB)

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 07, 2008
• Citations: (2009), 465 A.R. 1 (QB);2009 ABQB 38

R. v. Park (S.J.) (2009), 465 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.175

Her Majesty The Queen v. Scott James Park (080312713Q1; 2009 ABQB 38)

Indexed As: R. v. Park (S.J.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

January 21, 2009.

Summary:

The accused was charged with 41 counts of fraud, one count of conspiracy to commit fraud and one count of committing fraud for a criminal organization. The charges related to a fraudulent mortgage scheme masterminded by Pervez where mortgage funds were obtained from institutional lenders on properties purchased by Pervez and "flipped" to straw buyers. Mortgage funds were then obtained for an inflated property value using falsified and forged documents and material misrepresentations in the mortgage applications. But for the fraud, the lenders testified that they would never have granted mortgages. The accused was a real estate lawyer whose services were used for a number of the mortgage transactions. After the Crown closed its case, the accused applied for a directed verdict on all counts on the ground that the Crown failed to present any evidence of an essential element of the offence of fraud (i.e., reliance on the deceit or false representations).

The Alberta Court of Queen's Bench granted a directed verdict of not guilty on the 41 fraud counts and the count of committing fraud for a criminal organization, but not the conspiracy count. The Crown failed to provide evidence of detrimental reliance.

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of fraud - The accused was charged with 41 counts of fraud, conspiracy to commit fraud and committing fraud for a criminal organization - The charges related to a fraudulent mortgage scheme masterminded by Pervez, where mortgage funds were obtained from institutional lenders on properties purchased by Pervez and "flipped" to straw buyers - Mortgage funds were then obtained for an inflated property value using falsified and forged documents and material misrepresentations in the mortgage applications - The accused was a real estate lawyer whose services were used for a number of the mortgage transactions - After the Crown closed its case, the accused applied for a directed verdict on all counts on the ground that the Crown failed to present any evidence of an essential element of the offence of fraud (i.e., reliance on the deceit or false representations - The Alberta Court of Queen's Bench granted a directed verdict of not guilty on the 41 fraud counts and the count of committing fraud for a criminal organization - The Crown did not call any of the persons who approved the mortgages - The Crown chose to call senior lending institution employees who had no involvement in or knowledge of the 41 mortgage approvals - The witnesses testified as to their policies for granting mortgages and each testified hypothetically that they would not approve any mortgage based on false information - None of the witnesses could state "what the employee who approved the mortgage knew or did not know, or what they did or did not do" - There was no evidence that any employee who approved any of the mortgages relied on the false information in approving the mortgages - Evidence that each institution had internal policies respecting mortgage approvals and that, hypothetically, each of the mortgages should not have been approved under the policies, was not evidence of the essential element of detrimental reliance - The Crown should have called as witnesses the 16 persons who approved the 41 mortgages to testify that they relied on the false information provided.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - The Alberta Court of Queen's Bench discussed the evolving the test for a directed verdict, concluding that "the test for a directed verdict of acquittal, as it relates to the limited weighing of the evidence (direct or circumstantial) to determine whether it supports a verdict of guilt, requires the court to weigh the evidence to determine if it is sufficiently reliable and persuasive. This means that after the judge has engaged in a 'limited' weighing of the evidence (Arcuri), the judge must conclude that the evidence could realistically and reasonably (see Charemski; Arcuri) support a verdict of guilty, not that the evidence could hypothetically support a verdict of guilty. I am satisfied that the Supreme Court of Canada has now adopted this approach to ensure that insufficient or weak evidence does not result in wrongful convictions." - See paragraphs 18 to 19.

Criminal Law - Topic 4440

Procedure - Verdicts, discharges and dismissals - Directed verdicts - [See Criminal Law - Topic 4359 ].

Cases Noticed:

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 3].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 4].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 6].

R. v. R.C.L., [2004] A.R. Uned. 537; 2004 ABQB 592, refd to. [para. 10].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 13].

R. v. Lacroix (P.) (2008), 384 N.R. 1; 2008 SCC 67, refd to. [para. 15].

R. v. Winning (1973), 12 C.C.C.(2d) 449 (Ont. C.A.), refd to. [para. 20].

Alberta (Treasury Branches) v. Hammond (1997), 192 A.R. 353 (Q.B. Master), refd to. [para. 61].

R. v. Rodney (C.), [2007] O.T.C. Uned. F61; 74 W.C.B.(2d) 625 (Sup. Ct.), refd to. [para. 61].

R. v. Guay (J.), [1999] O.T.C. Uned. 814; 43 W.C.B.(2d) 427 (Sup. Ct.), refd to. [para. 61].

R. v. Rehberg (J.) (1994), 127 N.S.R.(2d) 331; 355 A.P.R. 331; 111 D.L.R.(4th) 336 (S.C.), refd to. [para. 61].

R. v. Champagne (1987), 19 Q.A.C. 309 (C.A.), refd to. [para. 61].

R. v. Semeniuk (M.K.), 2001 CarswellBC 3440 (S.C.), affd. [2004] B.C.A.C. Uned. 42; 61 W.C.B.(2d) 153; 2004 BCCA 115, refd to. [para. 61].

Counsel:

Michelle C. Doyle and Cheryl Schlecker, for the Crown;

Murray Stone, for the accused.

This application was heard between April 7, 2008, and January 14, 2009, before Ouellette, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 21, 2009.