R. v. Park (S.J.), (2009) 465 A.R. 20 (QB)

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 07, 2008
• Citations: (2009), 465 A.R. 20 (QB);2009 ABQB 470

R. v. Park (S.J.) (2009), 465 A.R. 20 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.032

Her Majesty The Queen v. Scott James Park (080312713Q1; 2009 ABQB 470)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

July 31, 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, primarily a criminal law lawyer, was retained to do the legal work 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, in a judgment reported (2009), 465 A.R. 1, 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.

The Alberta Court of Queen's Bench subsequently found the accused not guilty on the count of conspiracy to commit fraud.

Criminal Law - Topic 2647

Attempts, conspiracies, accessories and parties - Conspiracies - Elements of offence - The Alberta Court of Queen's Bench stated that "the mens rea of conspiracy is the intention to enter into the agreement and knowledge of the terms of the agreement ... Mere knowledge of, discussion of, or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient to support a conviction for conspiracy ... It must be established that the accused adopted it and consented to participate in it ... The mens rea requirement for conspiracy may be satisfied where wilful blindness is established ... However, one cannot commit conspiracy by mere recklessness with respect to the object of the agreement when the discussions concern a variety of possible actions some of which are not of a criminal nature; recklessness may only be applied with respect to the method of execution of the agreement ... Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy. ... in order to find liability as a party to conspiracy under s. 21(1), the accused must have aided or abetted in the formation of the agreement, for example by encouraging someone to become a member of the conspiracy, or by otherwise facilitating the formation of the agreement. Such aiding or abetting may occur after the original agreement is formed, but must relate to the agreement itself. However, actual intent or wilful blindness regarding a conspiracy and its nature, along with acts which abetted or encouraged any of the conspirators to pursue its object may be evidence that the accused had in fact become a member of the conspiracy. In all cases, the individual may be convicted where mens rea in the form of wilful blindness has been established, but recklessness is only available in relation to the manner of execution of the conspiracy, i.e., the execution of the fraudulent act itself." - See paragraphs 529 to 531, 570, 571, 575.

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Agreement - What constitutes a conspiracy - Perez masterminded a fraudulent mortgage scheme where mortgage funds were obtained from institutional lenders on properties purchased by Pervez, superficially renovated, and "flipped" by selling to straw buyers who qualified for mortgages - 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 hypothetically they would not have granted mortgages - Perez and others pleaded guilty to fraud - The accused lawyer, who specialized in criminal law, was retained to do the legal work for some of the mortgage transactions, was charged with conspiracy to commit fraud - A conspiracy was conceded - The issue was whether the accused was a member of that conspiracy - The Alberta Court of Queen's Bench acquitted the accused - Although there was direct evidence of acts and utterances by the accused that supported a finding that the accused was "probably" a member of the conspiracy, entitling the court to consider the acts and declarations of the alleged co-conspirators, the Crown failed to prove beyond a reasonable doubt that the accused was a member of the conspiracy - Suspicion of involvement was not enough - The fact that the accused may have been guilty of professional negligence in how he handled his real estate practice was not synonymous with conspiracy to commit fraud - The evidence failed to prove beyond a reasonable doubt the requisite knowledge or wilful blindness respecting the conspiracy - The evidence raised a reasonable doubt that the accused was a member of the conspiracy or that he recruited persons to become members of the conspiracy, including evidence of steps taken to ensure the accused was kept in the dark and acts by the accused inconsistent with his being a member of the conspiracy (e.g., explaining the mortgage documents to the straw buyers) - The court stated that "the evidence leaves me with a reasonable doubt as to whether [the accused] was actually ascribing to commit fraud as opposed to attempting to profit from involvement in a legitimate business" - See paragraphs 525 to 700.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - [See Criminal Law - Topic 2647 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - A judge-alone trial involved assessing the credibility of mostly unsavoury witnesses, necessitating a Vetrovec warning - The Alberta Court of Queen's Bench stated that "First, the trial judge should objectively identify and comment on why certain testimonial evidence requires special scrutiny. Secondly, the trial judge should consider the importance of the witness' evidence in the case against the accused. A more important witness should lead to greater scrutiny of the evidence; where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute. Finally, the trial judge should look for and identify any evidence from another source tending to show that the untrustworthy witness is telling the truth. Confirmatory evidence should support material parts of the witnesses' evidence. This would not include evidence that is tainted by connection to the suspect witness. Individual items of confirmatory evidence need not implicate the accused but should confirm relevant aspects of the witness' account in the context of the case as a whole. As well, the evidence of a co-conspirator or otherwise suspect witness may be used as confirmatory evidence. There are dangers in using the testimony of one unreliable witness to support that of another, but if there has been no opportunity for the witnesses to collude and coordinate their stories, and if there are important similarities in their testimony, either because of the unusual nature of the similar details or because of the number of similarities, or both, it is open to conclude that the similarities were unlikely to be explained as a coincidence and were more likely a result of both telling the truth on those issues." - See paragraph 22.

Criminal Law - Topic 5574

Evidence and witnesses - Exhibits - Admission of exhibits marked only for identification - At issue was the admission of documentary evidence that was marked for identification, but was admitted without formally marking it as an exhibit - The Alberta Court of Queen's Bench stated that "in cases where there remains a question as to whether or not the evidence was adopted by a witness, was admissible, or was ruled to be admissible, the failure to enter real evidence as an exhibit may prevent the trial judge from relying on that evidence in convicting an accused. However, where the admissibility is clear and the evidence has been adequately addressed by the relevant witness or witnesses, the weight of authority is that the failure to make the evidence a formal exhibit is a matter of form only and does not undermine an otherwise proper conviction. Further, reading documentary evidence into the record essentially accomplishes the same thing as entering the document as an exhibit." - See paragraphs 9 to 19.

Cases Noticed:

R. v. Achtymichuk, [1979] A.J. No. 75 (C.A.), refd to. [para. 9].

R. v. Monkhouse (1988), 83 A.R. 62 (C.A.), refd to. [para. 10].

R. v. Chow (1930), 53 C.C.C. 247 (B.C.C.A.), refd to. [para. 11].

R. v. Knittel (1983), 22 Sask.R. 101 (C.A.), refd to. [para. 12].

R. v. Meisner (1981), 46 N.S.R.(2d) 456; 89 A.P.R. 456 (C.A.), refd to. [para. 13].

R. v. Arnault, [1980] B.C.J. No. 338 (C.A.), refd to. [para. 14].

R. v. S.J.P. et al. (2001), 156 B.C.A.C. 311; 255 W.A.C. 311; 2001 BCCA 536, refd to. [para. 15].

R. v. Donald (1958), 121 C.C.C. 304 (N.B.C.A.), refd to. [para. 17].

R. v. Haas (E.) (1993), 139 A.R. 180; 10 Alta. L.R.(3d) 179 (Prov. Ct.), refd to. [para. 17].

R. v. Penner, [1984] B.C.J. No. 508 (Co. Ct.), refd to. [para. 18].

R. v. Shumka (1985), 18 C.R.R. 340 (B.C. Co. Ct.), refd to. [para. 18].

R. v. McGuire (H.C.) (2005), 290 N.B.R.(2d) 289; 755 A.P.R. 289; 2005 NBQB 404, refd to. [para. 18].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 20].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 20].

R. v. Bennett (H.), [2009] O.T.C. Uned. 613 (Sup. Ct.), refd to. [para. 21].

R. v. Munyaneza, 2009 QCCS 2201, refd to. [para. 21].

R. v. Drabinsky (G.), [2009] O.T.C. Uned. 706 (Sup. Ct.), refd to. [para. 21].

LSJPA - 0917, 2009 QCCA 951, refd to. [para. 21].

R. v. Bitternose (Q.L.) (2009), 331 Sask.R. 19; 460 W.A.C. 19; 2009 SKCA 54, refd to. [para. 21].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 21].

R. v. Tymiak (G.G.) (2009), 267 B.C.A.C. 120; 450 W.A.C. 120; 2009 BCCA 98, refd to. [para. 21].

R. v. Linklater (R.) (2009), 246 O.A.C. 303; 2009 ONCA 172, refd to. [para. 21].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 526].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 527].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 528].

R. v. Cotroni; R. v. Papalia, [1979] 2 S.C.R. 256; 26 N.R. 133, refd to. [para. 529].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 529].

R. v. McNamara - see R. v. Canadian Dredge & Dock Co., Marine Industries Ltd., Porter (J.P.) Co. and Richelieu Dredging Corp. Inc.

R. v. Canadian Dredge & Dock Co., Marine Industries Ltd., Porter (J.P.) Co. and Richelieu Dredging Corp. Inc. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 529].

R. v. Lamontagne (1999), 142 C.C.C.(3d) 561 (Que. C.A.), refd to. [para. 529].

R. v. Roach (R.W.) (2004), 192 C.C.C.(3d) 557 (Ont. C.A.), refd to. [para. 529].

R. v. Barbeau (1996), 110 C.C.C.(3d) 69 (Que. C.A.), refd to. [para. 530].

R. v. Lessard (1982), 10 C.C.C.(3d) 61 (Que. C.A.), refd to. [para. 530].

United States of America v. Tavormina (1996), 112 C.C.C.(3d) 563 (Que. C.A.), refd to. [para. 530].

R. v. Aiello (1978), 30 N.R. 559; 38 C.C.C.(2d) 485 (Ont. C.A.), affd. [1979] 2 S.C.R. 15; 30 N.R. 558, refd to. [para. 533].

R. v. Gassyt (P.) and Markowitz (A.) (1998), 114 O.A.C. 147; 127 C.C.C.(3d) 546 (C.A.), leave to appeal refused (1999), 244 N.R. 400; 126 O.A.C. 199 (S.C.C.), refd to. [para. 533].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 533].

Germany (Federal Republic) v. Ebke (2001), 158 C.C.C.(3d) 253; 2001 NWTSC 52, affd. (2003), 173 C.C.C.(3d) 261; 2003 NWTCA 1, leave denied [2003] S.C.C.A. No. 178; 327 N.R. 198; 357 A.R. 227; 334 W.A.C. 227, refd to. [para. 533].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 538].

R. v. Adams and Waltz (1989), 33 O.A.C. 148 (C.A.), refd to. [para. 538].

R. v. F.W. Woolworth Co. (1974), 18 C.C.C.(2d) 23 (Ont. C.A.), refd to. [para. 539].

R. v. McDaid (1974), 19 C.C.C.(2d) 572 (Ont. C.A.), refd to. [para. 539].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 539].

R. v. Taylor (1984), 40 C.R.(3d) 222 (B.C.S.C.), refd to. [para. 542].

R. v. Hastings (E.W.) (1996), 16 O.T.C. 161 (Gen. Div.), refd to. [para. 543].

R. v. Kemp (B.L.) (1998), 65 O.T.C. 132 (Gen. Div.), refd to. [para. 544].

R. v. Vucetic (M.), [1998] O.A.C. Uned. 387; 129 C.C.C.(3d) 178 (C.A.), refd to. [para. 545].

R. v. Bérubé et al. (1999), 139 C.C.C.(3d) 304 (Que. C.A.), refd to. [para. 546].

R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), leave to appeal refused (2006), 352 N.R. 197; 221 O.A.C. 400 (S.C.C.), dist. [para. 548].

R. v. Alexander (H.) - see R. v. H.A. et al.

R. v. Helsdon (J.) (2007), 220 O.A.C. 302; 84 O.R.(3d) 544; 2007 ONCA 54, refd to. [para. 554].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 556].

R. v. Curran (1978), 7 A.R. 295; 38 C.C.C.(2d) 151 (C.A.), leave to appeal refused (1978), 20 N.R. 180; 8 A.R. 449; 38 C.C.C.(2d) 151 (S.C.C.), refd to. [para. 557].

R. v. Lam (T.K.), [2005] A.R. Uned. 878; 2005 ABQB 849, refd to. [para. 558].

R. v. Trieu (B.) (2008), 429 A.R. 200; 421 W.A.C. 200; 89 Alta. L.R.(4th) 85 (C.A.), refd to. [para. 561].

R. v. Pasquin, 2009 QCCQ 1916, leave to appeal granted 2009 QCCA 759, refd to. [para. 563].

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. 576].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 85 C.C.C.(3d) 97, refd to. [para. 577].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 579].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 579].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, refd to. [para. 579].

R. v. Smith - see R. v. James (W.A.) et al.

Authors and Works Noticed:

Roach, Kent, Criminal Law (2nd Ed. 2000), pp. 113, 114, 136 [para. 539].

Roach, Kent, Criminal Law (3rd Ed. 2004), p. 155 [para. 555].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 173 [para. 576].

Counsel:

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

Murray Stone, for the accused.

This matter was heard between April 7, 2008, and May 22, 2009, before Ouellette, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 31, 2009.