) ) HER MAJESTY THE QUEEN – v. –, 2018 ONSC 2821

CITATION : R. v.

Fast, 2018 ONSC 2821 COURT FILE NO.: 11624 DATE: 2018/05/03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – THOMAS FAST Defendant ) ) ) ) ) ) ) ) Christopher Heron, for the Crown Cassandra DeMelo, for the Defendant ) ) ) ) ) ) ) ) ) ) ) HEARD: October 20, 21, 22, 23, 26, 27, 28, 29 and 30, November 30, December 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 of 2015; January 4, 5, 6, 7, 8, 18, 19, 20, 21 and 22, June 13, 14, 15, 16, 17, 28, 29 and 30, October 11, 12, 13, 14, 17, 18, 19, 20 and 21, November 7, 8, 9 and 10 of 2016; January 30 and 31, February 1, 2, and 3, March 6, 7, 8, 9, 10, April 25, 26 and 27, July 25, 26 and 27 of 2017. justice i.f. leach (ORALLY) Introduction [ 1 ] The accused, Thomas Fast, is charged with 14 counts of fraud, contrary to s.380(1) (

a) of the Criminal Code of Canada , (“the Code”). [ 2 ] The charges stem from a hairstyling training program called “The DeVog Method”, (alternatively referred to herein as “the program” or new “course”), offered by a business in respect of which Mr Fast was an owner and principal. [ 3 ] Fees for taking the program were paid directly by enrollees, (using their own funds or funds borrowed from relatives or financial institutions), or by parents paying such fees on behalf of a child enrolled in the program.

In that regard, as far as this criminal proceeding is concerned: • 11 of the 14 counts on the indictment, (Counts 2, 3, 4, 5, 6, 8, 9, 10, 12, 13 and 14), relate to 11 different named individual complainants who were said to have enrolled in the program and paid their corresponding fees directly; • 2 of the 14 counts on the indictment, (Counts 1 and 11), relate to two named couples who were said to have paid such fees in relation to a daughter enrolled in the program, but not among the complainants identified in the other counts; and • the remaining count on the indictment, (Count 7), referring to defrauding of “the public”, relates to others who enrolled in the program and paid corresponding fees, or paid such fees on behalf of an enrollee, who have not been specifically identified in the other counts of the indictment.

Procedural history [ 4 ] Before embarking on a more detailed review of the circumstances and developments underlying the fraud charges brought against Mr Fast, I think it advisable to make a number of observations concerning the duration of this criminal proceeding, and the unusual manner in which it has moved forward to conclusion.

[ 5 ] I had occasion to outline and comment on some of that procedural history in an earlier written endorsement, (released on December 18, 2015), noting extraordinary scheduling arrangements necessitated by the parties’ gross underestimation of the amount of time required to complete trial of this matter. [ 6 ] However, I think it appropriate to repeat and expand upon that history and my comments in that regard here. In particular: • This matter was called for trial on October 20, 2015, when the most recent indication of estimated trial duration received from counsel was three weeks.

That was the unchanging and repeatedly confirmed trial duration estimate provided to the court during the initial judicial pretrial conducted in relation to this matter, and during assignment court and trial readiness appearances before the Local Administrative Judge here in London. • When the matter was called for trial, I received no indication whatsoever from either Crown counsel or defence counsel that the repeatedly confirmed three week trial duration estimate was no longer accurate, or that there were any possible concerns in that regard.

I embarked on the trial, and accordingly became seized of the matter. • After nine days of trial, it was clear that the matter would not be completed in advance of the administrative non-sit week scheduled for the week of November 2-6, 2015, and that many more weeks of trial would be required.

Upon receipt of a revised trial duration estimate jointly provided by counsel, a further three weeks of trial accordingly were scheduled for late November and December of 2015. • Early in the week of December 7-11, 2015, I expressed concern about the parties’ ability to complete the trial by December 18, 2015, (as contemplated by counsel’s most recent and revised trial duration estimate), having regard to the limited progress made in completing the Crown’s extensive list of anticipated witnesses, indications from defence counsel that there was a strong possibility of the defence leading evidence, and the probability, (reflected in briefs of authority already filed), of extended and somewhat unusual legal submissions contemplated in relation to the issues raised by this complicated fraud trial.

In response, counsel indicated that a further two weeks of trial time would be required, and I directed counsel to collaborate and prepare a draft calendar that would provide a more reliable indication of how and when the remaining contemplated witnesses and legal argument would proceed.

In the meantime, I embarked on consultation with the London and Regional trial co-ordinators in an effort to make myself available to complete trial of this matter as soon as possible in 2016; e.g., by rescheduling other court commitments to provide the parties with the two additional requested weeks of trial time in January of 2016. • On December 9, 2015, I advised counsel that special arrangements had been made and confirmed, after considerable effort and court reorganization, to provide this matter with two additional weeks of trial time, as requested, in January of 2016.

The shocking response was that counsel had assessed the matter yet again, resulting in a shared view that no less than six to seven further weeks of trial time would be required, beyond the week of December 14-18, 2015.

In other words, counsel finally were indicating that this trial would not require three week s, (as per counsel’s trial duration estimate repeatedly provided to the court before the matter was called), but at least three months . • As I indicated at the time, such a gross underestimation of trial duration was shocking and entirely unacceptable, for reasons that included but were not limited to the resulting creation of severe scheduling problems for London and the Southwest Region that could have been entirely avoided, had the court been provided with more accurate and timely information by counsel.

In particular, pursuant to the established regional schedule, (the creation and setting of which requires considerable effort, consultation and intricate advance planning), I was not scheduled to be sitting in London for much of 2016, and was seized of various matters and other fixed court commitments elsewhere in the region. Moreover, the time when I was going to be sitting in London during 2016 already was devoted in large measure to matters in respect of which I already was seized.

Had an accurate trial duration estimate been provided, or a timely indication of possible concerns in that regard been given, this matter therefore almost certainly would have been assigned, at the outset, to another judge with the ability to hear this matter through to completion without interruption and prolonged delays. • Counsel strongly disagreed as to the reasons for how this matter proceeded to trial with such a seriously inaccurate trial duration estimate, and the extent to which either party or both parties may have been responsible for that happening. • I frankly found and find the suggestion that both counsel were unable to discern how extraordinarily inaccurate the time estimation was until well into the trial, (at which point the resulting scheduling challenges were horrendous but inescapable), quite astounding. • In any event, those resulting scheduling challenges had to be addressed in some fashion and, through considerable further consultation with the London and regional trial co-ordinators, Local Administrative Judge for London and Regional Senior Judge, special arrangements were made to ensure the trial could continue, albeit on a necessarily intermittent and interrupted basis, on further specified dates in January, June, October and November of 2016; i.e., on almost every single one of my remaining sitting dates in 2016 not already irrevocably committed to dealing with other matters.

Counsel were instructed to adjust their schedules accordingly. • Unfortunately, even those further dates proved insufficient to complete the matter, as the further time estimate provided by counsel once again proved inaccurate. Additional trial continuation dates in 2017 then had to be arranged, once again working around similar conflicting regional and London scheduling obligations already established in relation to other matters. [ 7 ] In the lamentable result, this criminal trial has proceeded on a prolonged and repeatedly interrupted basis.

In particular, up until the point of closing submissions, the trial consumed a total of 71 days (close to five times the originally provided and repeatedly confirmed trial duration estimate), extended over a period of more than 21 months; i.e., from the commencement of trial on October 20, 2015, to the final day of oral submissions on July 27, 2017. [ 8 ] Of course, that was not the end of the matter. [ 9 ] The scope of the proceeding, (discussed in more detail below), and its intermittent and prolonged progress, effectively made it impossible to render an immediate substantive decision.

[ 10 ] To the contrary, despite my best efforts to prepare and finalize a substantive decision, (while addressing my other ongoing and intervening court commitments), it unfortunately has taken a further nine months to bring the matter forward for a trial decision today; a date which was moved forward, (during an otherwise scheduled administrative “non-sit week”), from an originally contemplated decision date in July of this year.

Scope of proceedings [ 11 ] As I mentioned a moment ago, the time taken to prepare and deliver this decision has stemmed, in large measure, from the scope and length of this proceeding, which generated an extraordinary volume of evidence requiring review and consideration. [ 12 ] In that regard, I note that, over the course of the trial, I received evidence directly or indirectly from no less than 36 witnesses. [ 13 ] Thirty-one of those witnesses were called by the Crown during presentation of its case in chief, and included the following: i.

Detective Whitford, the investigating officer of the London Police Service assigned to this matter; ii. sixteen individuals who enrolled and/or paid enrollment fees in relation to “The DeVog Method” program, or otherwise participated in the enrollment process and/or expressed subsequent concerns, including: 1. Nadia Elias, who enrolled in The DeVog Method; 2. Julia Yaromich, who enrolled in The DeVog Method; 3. Sarah Moore, who enrolled in The DeVog Method; 4.

Allan Joseph Gillis, (Sarah Moore’s father), whose evidence was provided to me by the consent filing of his transcribed preliminary hearing testimony and related documents; 5. Janice Marie Gillis, (Sarah Moore’s mother), whose evidence was provided to me by the consent filing of her transcribed preliminary hearing testimony and related documents; 6. Katherine Target, who enrolled in The DeVog Method; 7. Julia Parnell, who enrolled in The DeVog Method; 8. Kaylan Moran, who enrolled in The DeVog Method; 9. Susan Moran, (the mother of Kaylan Moran); 10. Jenalyn Cundy-Jones, who enrolled in The DeVog Method; 11.

Candice Kloc, who enrolled in The DeVog Method; 12. Morgan Rossiter, who enrolled in The DeVog Method; 13. Monika Gokstorp, who enrolled in The DeVog Method; 14. Amanda DeMelo, who enrolled in The DeVog Method; 15. Natalia Pena-Mendez, who enrolled in The DeVog Method; and 16. Karla Ann Lang, (whose daughter Alisha Lang enrolled in The DeVog Method, and whose evidence was provided to me by the consent filing of her transcribed preliminary hearing testimony and related documents); iii. nine persons formally employed in the business operations of Mr Fast, including: 1. Diane DeSousa, who worked as an instructor; 2.

Deborah Hellowel, who worked as a receptionist; 3. Michelle Santagapita, who worked as an instructor; 4. Kelly MacLellan, who worked as a sales representative; 5. Julia Hutter, who worked as an instructor; 6. Deanna Twiddy, who helped to manage operations and instructors; 7. Francesca Collella, who worked as an instructor, (and whose evidence was provided to me by the consent filing of her transcribed preliminary hearing testimony); 8. Darci Armstrong, who worked as an instructor, (and whose evidence was provided to me by the consent filing of her transcribed preliminary hearing testimony); and 9.

Crystal DaCosta, (who worked as an instructor, and whose evidence also was provided by the consent filing of her transcribed

preliminary hearing testimony); and iv. five persons employed by the government in various capacities, including: 1. Helena Andrade, who is employed by the Ministry of Training, Colleges and Universities, (the “MTCU”), and acted as a “secret shopper” to investigate how The DeVog Method may have been represented to potential enrollees; 2.

Dina Waik, also employed by the MTCU, but assigned to its “Private Career College” or “PCC” branch, where Ms Waik acts as an inspector charged with managing a portfolio of PCCs, (including those providing training and education related to hairstyling), reviewing related applications, and generally working to ensure compliance with the Private Career Colleges Act, 2005 , S.O. 2005, c.28, (or “PCCA”); 3.

Scott Ravary, also employed by the MTCU, but assigned to its “Employment and Training” or “Apprenticeship” Branch, the responsibilities of which include oversight relating to the registration and training of apprentices, (including those in the hairstyling trade), and working to ensure compliance with the Apprenticeship and Certification Act, 1998 , S.O. 1998, c.22, (or “ACA”), with the roles assumed by Mr Ravary including those of Service Delivery Manager and oversight of “employment training consultants”, (including those doing work in relation to the hairstyling trade); 4.

Carla Sherle-Thompson, also employed by the MTCU and assigned to its Employment Training or Apprenticeship branch, where she has worked as an Employment Training Consultant (or “ETC”) and as a Service Delivery Manager, (including work in relation to the hairstyling trade); and 5. Karen Parker, who is employed by the Ministry of Labour (or “MOL”) as an Employment Standards Officer. [ 14 ] Three of the 36 trial witnesses were called by the defence, and included the following: i. the accused, Mr Fast, who provided extended testimony on his own behalf; ii.

Kelli McAskill, another former employee of Mr Fast’s business operations, who served as an administrative manager in the period leading up to and during initial offering of The DeVog Method; and iii.

Paul Wollaston, an experienced business and media consultant, who has provided various forms of business assistance and advice to Mr Fast through the course of their 30 year relationship; e.g., as a friend, as a landlord, and as someone providing contract-based assistance that included help in relation to staff and student communications, personnel issues, management, growth, communication with government officials, and the development of new business opportunities. [ 15 ] Two of the 36 trial witnesses were called by the Crown, (along with the recalling of Detective Whitford), to provide desired reply or “rebuttal” evidence, which initially was suspended in a voir dire to determine its admissibility. [ 16 ] In particular, in addition to Detective Whitford, (who was recalled during the aforesaid voir dire primarily to provide evidence concerning the manner in which he approached one of the other contemplated reply/rebuttal witnesses), the Crown elicited further evidence from: i.

Deborah Armstrong, the Director of Programs of “Nokee Kwe”, (a not-for-profit organization which provides assistance primarily to working women), who also was seconded to the MTCU for a year to work on “Apprenticeship” and “Second Career” assignments; and ii.

Deborah Renaud, who works at Fanshawe College as the coordinator of its hair stylist program. [ 17 ] By way of further background in relation to the tendering of reply/rebuttal evidence: • As noted above, the defence chose to lead evidence in this case, (including but not limited to extended testimony from Mr Fast himself), and did so on various dates between October 14, 2016, and March 10, 2017. • When the defence formally confirmed it had no further evidence to present, I called on Crown counsel to indicate whether there was any wish to tender evidence in reply, and Crown counsel indicated that there was.

Indeed, conscious of the need to avoid any waste of the waning trial time allocated to this matter, the Crown had one of its contemplated reply witnesses standing by to provide testimony. • At that point, defence counsel voiced her opposition to Crown counsel’s request to lead evidence in reply, on three suggested grounds: o first, that permitting such reply evidence would prolong the trial and further delay a final trial decision, reinforcing the concerns raised by the s.11 (

b) Charter application brought by the accused; o second, that permitting such reply evidence would constitute an impermissible “splitting” of the Crown’s case against the accused; and o third, that the evidence of at least one of the Crown’s contemplated reply witnesses, (Deb Armstrong), had been tainted by contravention of the witness exclusion order made at the outset of trial, insofar as Detective Whitford, (the investigating officer in this case), was alleged to have improperly shared information about the proceedings to date with that witness, (Ms Armstrong), when explaining, on behalf of Crown counsel, the need for Ms Armstrong’s contemplated testimony in reply. • In support of that third and last ground of objection, defence counsel went so far as to make an allegation of “witness tampering”, and filed an “Amended Notice of Application and Constitutional Issue”, (on or about April 25, 2017), submitting that the alleged

contravention of the witness exclusion order and Crown request to tender reply/rebuttal evidence entailed a further breach or breaches of rights guaranteed to Mr Fast pursuant to ss. 7 and 11 (

b) of the Charter , such that a stay of the proceedings or exclusion of the contemplated reply/rebuttal evidence was required. • In an effort to avoid further waste of time and witness inconvenience, I made an oral interim ruling that we would proceed with receipt of the Crown’s contemplated reply evidence in the context of a voir dire , and a further ruling that counsel were to include arguments about the admissibility of that evidence, and submissions in the alternative as to the suggested impact on the overall trial proceeding if the desired reply evidence was and was not admitted, during the course of their final arguments. [ 18 ] However, during the course of closing submissions, defence counsel advised and confirmed that admissibility of the reply/rebuttal evidence previously suspended in the voir dire was being conceded, in its entirety, and that it therefore should be regarded as forming part of the evidence in the trial proper.

Indeed, defence counsel relied upon aspects of the testimony of Ms Armstrong and Ms Renaud during the course of her closing submissions. [ 19 ] Defence counsel nevertheless noted her continued intention to make reference to the manner in which the reply/rebuttal evidence was dealt with, (by Detective Whitford and the Crown), in support of contemplated further submissions that the suggested corresponding breach or breaches of the Charter rights of Mr Fast lent further support to defence counsel’s outstanding request for a stay of these proceedings. [ 20 ] Although defence counsel also indicated an intention to rely upon such a breach or breaches of the Charter in support of a contemplated claim for costs against the Crown, I made an oral ruling on July 26, 2017, (after receiving submissions from counsel in that regard), that such a claim for costs was precluded by failure to give proper and timely notice of such a claim.

I provided oral reasons for my ruling at the time, and therefore do not intend to repeat them now. [ 21 ] Returning to my general comments concerning the scope of these proceedings, beyond the very substantial witness testimony and evidence described above, I also was presented with no less than 276 documentary exhibits during the course of the trial. [ 22 ] Those documentary exhibits range in volume from occasional single page documents to multi-tabbed binders and briefs that are many inches thick.

Collectively, the documentary exhibits and filings now fill numerous banker boxes. [ 23 ] The sheer volume of all that witness and documentary evidence, combined with the extended and interrupted nature of the proceedings, had certain obvious practical implications. [ 24 ] For example, while all of that evidence was the subject of careful study as it was presented, and then was reconsidered by me as a whole to determine whether or not I was satisfied that the Crown had proven the charges against Mr Fast beyond a reasonable doubt, the latter exercise was made more challenging by the fact that not only months but in some respects years had passed between the hearing of certain trial evidence and the preparation of my decision.

I have addressed such challenges by use of my notes, transcripts and DRD recordings in an effort to ensure all of the evidence was put on an even footing, regardless of the passage of time. [ 25 ] The scope of these proceedings also necessarily has implications for the scope of these reasons. [ 26 ] In particular, while I always endeavour to be thorough in my reasons, in this particular case my expressed reasons realistically cannot hope to address expressly all aspects of that mountain of information provided for my consideration. [ 27 ] Nor, for the reasons I will outline below, do I think it necessary to deal with certain issues. [ 28 ] For present purposes, I simply emphasize that my failure to address certain evidence expressly or specifically in these reasons should by no means suggest that it has not been considered.

All of the testimony and exhibits presented to me has been considered, at length.

That consideration has included review of what I frankly considered to be the parties’ frequent tortuous parsing of particular words used in emails and/or by witnesses during the course of their testimony, with each side accusing the other of failing to assign words their suggested narrow or broad natural meanings. [ 29 ] Given the practical challenges outlined above, and an absence of unlimited time in which to address all of the issues and arguments raised by the parties, in these reasons I simply intend to focus on matters and examples I think sufficient to indicate my line of reasoning, and why I think my conclusions are justified and appropriate.

Evidence – General context and facts [ 30 ] With that broad caveat in mind, and noting my intention to comment on certain further particulars of the underlying facts in the course of these reasons, I turn next to a review of the factual context giving rise to the charges against Mr Fast. [ 31 ] To understand why some of those developments occurred, and the possible significance of particular facts in this case, it is necessary to have a basic understanding of how the hairstyling trade was regulated in Ontario during the time period relevant to this criminal proceeding.

In that regard, at all material times: • Persons wanting to style hair in this province required a hairstyling licence, or had to work under the supervision of a licenced hairstylist in a regulated manner. • All those seeking a hairstyling licence in Ontario were obliged to take and pass a licensing examination.

However, before being able to take that licensing exam, a person was obliged to first complete one of a limited number of alternate paths, approved by the government, intended to confirm a person’s readiness to take that licensing exam. • In broad terms, each of those specified alternative paths to confirm readiness for the licensing exam was intended to demonstrate that the candidate had acquired, during a recommended 3500 hours of hair styling education and training in one form or another), a

certain level of theoretical and practical knowledge and skill. • Each of the alternative paths to licensing exam readiness contemplated some period of the aspiring hairstylist serving as an “apprentice”; i.e., a person formally registered as such with the MTCU, through its Apprenticeship Branch. Such registration required proof of age, (either 18, or 16-17 with confirmed parent/guardian approval), proof of grade 12 completion or its equivalent, and a social insurance number.

Registered apprentices received workplace-based training, supervised by one or more chosen and identified “sponsors”, who agreed to provide such workplace supervision and training pursuant to an executed “registered training agreement” (or “RTA”). Such workplace training was supplemented by different forms of academic training, with a particular focus on theory relating to hair styling.

Apprentices often were eligible for grants and other financial assistance. • For present purposes, it is sufficient to focus on four approved alternative paths to confirming licencing exam readiness, with the third and fourth effectively representing slight variations on a similar theme. In particular: i. The first alternative was the provincial or “public college path”.

Candidates pursuing that path attended and completed a 1500 hour hairstyle training program offered by a public community college, (such as those offered in this region by Fanshawe College at its Woodstock campus, or by Lambton College at its Sarnia campus), upon completion of which the candidates received a diploma. Such candidates then generally supplemented that public college training with a recommended 2000 apprenticeship hours.

When a candidate had completed the public college program, and during the recommended 2000 further apprenticeship hours had confirmed satisfactory demonstration of various specified skills mandated by a prescribed “Training Standard” document (or “TSD”), he or she usually was permitted to write the hairstylist licencing exam. ii. The second alternative was the “private career college path”.

Candidates pursuing that path attended and completed a 1500 hour hairstyle training program at a registered “private career college” or “PCC”; i.e., a private institution or facility, registered with the Superintendent of Private Career Colleges, that generally is focused on providing “vocation” or “basic entry” training”, (through a program more than 40 hours in length costing more than $1,000), towards a specific trade or occupation identified within a “national occupation classification” or “NOC” code.

Upon completion of that 1500 hour hairstyle training program offered by a PCC, candidates in the second path towards licencing examination readiness also received a diploma. Such candidates then generally supplemented that PCC training with a recommended 2000 apprenticeship hours. When a candidate had completed the 1500 hour PCC program, and during the recommended further 2000 apprenticeship hours had confirmed satisfactory demonstration of the various specified skills mandated by the “TSD”, he or she usually was permitted to write the hairstylist licencing exam. iii.

The third alternative was the “apprenticeship with Level 1 and Level 2 courses path”. Candidates pursuing that path attended neither a public college nor a private career college. They instead generally completed a recommended 3000 to 3020 apprenticeship hours, during which they were obliged to confirm satisfactory demonstration of the various specified skills mandated by the “TSD”.

Candidates in that third path to licencing examination readiness also were obliged to complete two courses that were each 240 hours in length, (i.e., the “Level 1” or “L1” course and the “Level 2” or “L2” course), offered by an approved “Training Delivery Agent” or “TDA”, authorized to supplement the workplace training received by apprentices with an “in- school” curriculum, (i.e., a curriculum not otherwise received through college or PCC training), apparently focused on the more theoretical aspects of hair styling. (In this region, each of Fanshawe College and Lambton College was/is an approved “TDA”, offering the relevant “L1” and “L2” courses.) When a candidate had confirmed satisfactory demonstration of the various specified skills mandated by the “TSD”, (during the recommended 3000-3020 apprenticeship hours), and had completed the L1 and L2 courses, he or she usually was permitted to write the hairstylist licencing exam. iv.

The fourth alternative was the “apprenticeship with L1 and L2 exemption tests path”. Candidates pursuing that fourth path, like those pursuing the third, generally would complete a recommended 3500 apprenticeship hours, during which they were obliged to confirm satisfactory demonstration of the various specified skills mandated by the “TSD”.

However, when they had done so, candidates pursuing this fourth path were obliged, (in lieu of actually taking and completing the “L1” and “L2” courses offered by a TDA, as required by the third path to licensing exam readiness), to write and pass a “Level 1 or L1 exemption test” and “Level 2 or L2 exemption test”.

When a candidate had confirmed satisfactory demonstration of the various specified skills mandated by the “TSD”, (during the recommended 3500 apprenticeship hours), and passing of the L1 and L2 “exemption tests”, he or she usually was permitted to write the hairstylist licencing exams. • As noted by defence counsel, the evidence at trial included somewhat divergent views as to whether completion of the number of apprenticeship hours noted for each of the four paths described above was mandatory or simply recommended, as guidelines for the time period needed to acquire the specified “TSD” skills that needed to be demonstrated.

For example, Ms Waik of the PCC Branch seemed inclined to the view that completion of such hours was mandatory.

However, I prefer and accept the testimony of Mr Ravary of the Apprenticeship Branch, who was more familiar with such matters, and indicated that the real focus was not on the number of hours but demonstration of the skills to be acquired, in order to ensure that “quality time” was being spent during the contemplated period of workplace training received by an apprentice. • Not surprisingly, the various programs, courses and exemption tests I have described had associated costs that had to be incurred by or on behalf of candidates pursuing the approved alternative paths to establish licensing exam readiness.

In particular: i. Public community colleges charged tuition fees, in varying amounts, for the 1500 hour programs they offered, as a component of the first path towards licencing. ii. Private career colleges charged tuition fees, in varying amounts, for the 1500 hour programs they offered, as a component of the second path towards licencing. (For example, when it last offered such a PCC-regulated course, DeVog charged tuition fees of approximately $14,500.) iii.

The 240 hour “Level 1” and “Level 2” courses, usually offered by public community colleges as a component of the third path towards licencing, cost approximately $400 each. iv. The “Level 1” and “Level 2” exemption tests, to be taken as a component of the fourth path towards licencing, cost

approximately $100-150 each to write. • Of course, embarking on each of the paths to licensing exam readiness also involved, to varying degrees, commitments of time. The first, second and third paths involved completion of courses at public or private institutions, and varying degrees of additional time required to then display, during required apprenticeship, mastery of specified skills.

The fourth path required not only that displayed mastery of specified skills during apprenticeship, (which apparently was expected to take longer without focused institutional training), but at least some period of self-study, (to compensate for lack of institutional training), in order to write the relevant L1 and L2 exemption tests. • The paths to licensing which I have described generally were subject to administrative oversight by various government entities, which ensured compliance with applicable legislation.

In broad terms, and continuing to use the past tense simply to note that I am focusing on how matters apparently stood at all times material to this proceeding: o Responsibility for oversight in relation to private career colleges and apprenticeships was legislatively assigned to the Ministry of Training, Colleges and Universities, (or “the MTCU”). o The MTCU nevertheless was divided into a number of branches, two of which have particular relevance to this proceeding: i. the Private Career Colleges Branch, (or “PCC Branch”), the responsibilities of which included ensuring compliance with the provisions of the PCCA; and ii. the Apprenticeship Branch, the responsibilities of which included ensuring compliance with the ACA, and final responsibility for recommending issuing of a hairstyling licence at the end of the licensing process, regardless of the alternative paths taken by trainees to get there. o To the extent a relationship between an apprentice and his or her sponsor might also take on the status of an employee-employer relationship, (which the MTCU Apprenticeship Branch desired but did not necessarily require, for reasons I will outline in a moment), the situation also may have required oversight and involvement of another ministry; i.e., the Ministry of Labour, (or “MOL”), the responsibilities of which included dealing, (via investigations, inspections and first instance decisions), with complaints under the Employments Standards Act , 2000, S.O. 2000, c.41 , (or “ESA”).

The MTCU apparently desired but did not necessarily require an employee-employer relationship between an apprentice and his or her sponsor, because it was recognized that apprentices might volunteer their time, and because the ESA itself includes a “person receiving training” within its definition of “employee” only if numerous specified cumulative conditions are met. [ 32 ] Against that framework of regulation and licencing relating to hairstyling, the following additional developments outlined by Mr Fast, provide additional context and background to the criminal charges laid against him: • The accused, Mr Fast, is approximately 53 years old.

He is university educated, having completed studies in math and computer science, and further study of engineering technology. • However, Mr Fast had a competing interest in professional hairstyling, in respect of which he also completed formal studies, and examinations in related practice and theory to obtain his licence.

That education and training was supplemented by further courses, self- study and salon work. • From approximately 1992 onwards, Mr Fast devoted himself fully to his preferred career in hairstyling, through salon work and further self-study, along with work and involvement with hair styling professional associations, all with a view to achieving higher standards. That in turn introduced him to a particular developed and apparently well-regarded style of hairstyling teaching and practice known as the “Pivot Point” method.

Over time, he also apparently developed a desire to teach professional hairstyling. • Following the death of his spouse in 1996, Mr Fast decided to relocate from Vancouver to Ontario, where he had been born, and where he had lived before his years spent in British Columbia. He says that, working as a hairstylist here in London, he was unimpressed by what he perceived to be a low standard of skills being demonstrated by colleagues.

It was also noted that there was no licenced provision of Pivot Point training being offered anywhere between Detroit and Toronto. • In 1998, Mr Fast opened a professional hairstyling school here in London, (with Mr Wollaston as his initial landlord). The school was operated under the business name “DeVog”. Its initial operations were small, with a cohort of only 5 students. However, the business apparently was successful, growing considerably in size and reputation.

In particular, it hired additional employees, and moved to larger premises known alternatively as the Galleria Mall and/or CitiPlaza in downtown London, allowing for more frequent sessions of the instruction offered by DeVog but with continued emphasis on small class sizes that facilitated “one on one” instruction.

In addition to academic and theoretical education, trainees would receive practical instruction through working on mannequins, and work done in an on-site hairstyling “clinic” on relatives and strangers willing to receive hairstyling from trainees, with Mr Fast asserting that was done at cost; e.g., to cover product supplies and/or associated overhead.

Mr Fast was proud that the attrition rate between enrollment and graduation at DeVog was approximately half of what it was at other private career colleges offering courses in hairstyling, and that “graduates” of the school achieved employment rates that were higher than average.

Similarly, Mr Fast was proud that he and DeVog respectively received “Canadian Instructor of the Year” and “Ontario Hairstyling School of the Year” awards from professional associations. • The hairstyling business operated by Mr Fast also expanded to include a number of professional hair salons, staffed by licenced hairstylists and certain graduates of the DeVog school who were selected to stay on in the salons as paid apprentices, working under the supervision of those licenced hairstylists.

At least one such salon was operated at the same physical location as the DeVog school for trainees, but separately from the hairstyling performed by students, as described above. Other salon operations associated with Mr Fast were carried out in other locations, such as a salon on Proudfoot Lane in London. In later stages, DeVog’s business operations expanded to include the sale of beauty supplies, including particular product lines for which it was the licenced distributor in this area.

• As DeVog’s business grew over time, Mr Fast entrusted direct provision of hairstyling training, as well as the vast majority of direct professional hairstyling services at his salon operations, and much of the day to day administration of his school and business operations, to others. He himself continued to style hair part time at his salon operations, but otherwise focused on his continued administrative obligations. • Prior to its closure, the DeVog “campus” at the Galleria Mall would have approximately 50 people on site every day.

Barring any unusual need for his attendance, (such as that associated with addressing the complaints and concerns outlined below), Mr Fast himself would attend that DeVog campus approximately twice a week. • In the years leading up to 2011, the primary course of hairstyle instruction offered by DeVog was a 1500 hour PCC program of hairstyling education and training, (referred to as DeVog’s “Professional Hair Design” course), taken by students embarked on the “private career college” path to licensing exam readiness; i.e., what I have described above as the second path to licensing exam readiness.

In that regard: o DeVog operated as a private career college or PCC, governed by the provisions of the PCCA; o DeVog accordingly was subject to regular inspection and monitoring by representatives of the PCC Branch, which had the authority to ensure compliance with the PCCA through a variety of measures, including monetary penalties, compliance orders and revocation of PCC registrations or approvals; and o DeVog paid mandated registration fees and premiums to the “Training Completion Assurance Fund”, (or “TCAF”), a fund administered by the PCC Branch to finance arrangements allowing students enrolled at a particular PCC to complete their program elsewhere if that particular PCC happens to close or otherwise cease operations while a program was still underway. • The PCC “Professional Hair Design” course offered by DeVog depended primarily on reputation and word of mouth advertising to attract further students or enrollees.

Prospective enrollees were given tours to assist with their decision making.

Although Mr Fast initially participated in such tours, responsibilities in that regard were delegated primarily to Ms McAskill, and then to Ms MacLellan. • In late 2010, (a relatively short time after Ms Waik assumed responsibility for monitoring and inspecting DeVog as a registered PCC, on behalf of the PCC Branch), a decision was made, (for disputed reasons addressed in more detail below), that DeVog would cease offering its 1500 hour PCC hairstyling course, (“Professional Hair Design”), and terminate its status as a registered PCC, after “training out” students already enrolled in its PCC course. • In February of 2011, while “training out” those remaining PCC students, DeVog then embarked on delivery of a new course, (“The DeVog Method”), after seeking and obtaining a formal confirmation from Ms Waik that “The DeVog Method” and certain other contemplated courses were of a nature that exempted them from PCC regulation. (Whether that formal confirmation/exemption was obtained by Mr Fast in good faith or through deliberate deception was just one of the significant areas of dispute in this proceeding.) • As discussed in more detail below, Mr Fast asserts that “The DeVog Method” course always was intended and represented to be something fundamentally different in nature and purpose from the previous 1500 hour PCC course offered by DeVog.

In particular: o Whereas the PCC course was a formal and mandated component of the second path to licensing exam readiness, (which included the teaching of theory as well as practical skills, thereby obviating the need for those taking the course to also complete the otherwise mandated L1 and L2 courses or corresponding exemption tests), The DeVog Method course was neither designed nor represented to be a formal or required component of any of the paths to licensing exam readiness. o In particular, Mr Fast says The DeVog Method was neither intended nor represented to be something that would eliminate the need to complete any of the mandated steps along the various alternate paths to licensing exam readiness, such as the L1 and L2 courses, or corresponding exemption tests. o Mr Fast says that, from its inception, The DeVog Method was instead intended and represented to be an optional professional development course, offered to apprentices and others in the hair styling industry, (such as those returning to the profession or looking to upgrade their skills), which would present very distinct advantages.

In particular, for those taking the course as apprentices, Mr Fast believed The DeVog Method would complement , rather than replace or form part of the mandated alternative paths to licensing exam readiness. In that regard: ▪ Mr Fast emphasized that the program was designed to provide apprentices with a more developed and “advanced” standard of practical skills than apprentices simply working in salons otherwise could expect to acquire, and/or do so more quickly.

That in turn would allow those completing apprenticeships, (particularly those pursuing the third and fourth “apprenticeship-based” paths to licensing exam readiness), to demonstrate their required mastery of specified skills sooner than others not taking The DeVog Method course. ▪ For such reasons, Mr Fast believed those following the apprenticeship-based paths to licensing exam readiness, and choosing to take The DeVog Method along with the required L1 and L2 courses or corresponding exemption tests, would wind up having the same skills at a cheaper cost than those who had taken the previous PCC-regulated course offered by DeVog. ▪ Moreover, it was thought that the “advanced” standard of skill imparted by The DeVog Method would make those who took the course, (and who received a resulting certificate to prove it), far more marketable, (as apprentices completing their path to licensing exam readiness, or as licenced hair stylists), and more successful in their hair styling careers, than those who had not received such advanced training. ▪ For such reasons, Mr Fast believed the practical training imparted by DeVog clearly represented a very considerable and valuable asset to apprentices who might take the program; one that would give those taking the course a very substantial advantage over others, in their hairstyling careers.

• Over the course of the following year, as DeVog began offering and implementing its new course, (charging approximately $8,000 to $10,000 for each enrollee), certain concerns and complaints nevertheless began to develop and emerge, with indications that a number of enrollees felt the course of instruction they were receiving was not what they had expected.

For example, there were expressions of surprise: o that enrollees were required to be registered apprentices, (which a 1500 hour course taught by a PCC would not have required as a course prerequisite); o that enrollees were receiving little or no academic theory relating to hairstyling, (which they would have received in a 1500 hour PCC course); and o that those completing The DeVog Program, (unlike graduates of a 1500 hour PCC course), still would be required to take and pay for L1 and L2 courses or corresponding exemption tests to ensure their acquisition of academic theory relating to hairstyling. • In essence, there were indications that a number of enrollees in The DeVog Method had understood and believed, incorrectly, that they were enrolled in a registered PCC hairstyling program or a course that offered similar benefits, in terms of formally advancing them along a path to licensing exam readiness. • Steps were taken by Mr Fast and others at DeVog to explore and address such concerns with enrollees and parents of enrollees. • At the same time, however, such complaints and concerns had come to the attention of the MTCU, and the attention of Dina Waik of the PCC Branch in particular.

Ms Waik then embarked on inquiries, in consultation with The Apprenticeship Branch of the MTCU, to determine whether or not The DeVog Method was being offered in contravention of applicable legislation. In that regard, there were concerns in particular about whether Mr Fast may have misrepresented the nature of the program in requesting an exemption from PCC regulation; e.g., disguising the fact that the program really constituted basic entry level vocational training which the PCCA was intended to monitor and regulate.

There also were concerns about whether enrollees in The DeVog Program had been properly registered as apprentices, and treated appropriately. Such concerns included questions about whether DeVog’s actions constituted impermissible charging of fees to be an apprentice, (contrary to provisions of the ACA), and about whether apprentices were being properly paid for services performed in that capacity. • Mr Fast and DeVog attempted to respond to such MTCU inquiries, and supply requested information, within indicated time constraints.

At the same time, Mr Fast raised concerns of this own, (e.g., through formal complaints to his Member of Provincial Parliament), that the Ministry and its employees were not approaching the matter in a fair or proper manner. • However, on February 3, 2012, a restraining order was issued by the PCC Branch, requiring DeVog to cease its offering of The DeVog Program.

Termination of The DeVog Method was in turn followed by the commencement of civil litigation, and by DeVog’s insolvency. • Subsequent complaints to the police, in late 2012, then led to these criminal proceedings against Mr Fast. [ 33 ] Again, I intend to comment on certain further particulars of the underlying facts in the course of these reasons .

Crown theory of case [ 34 ] I will not attempt to replicate, at length and in detail, the entirety of the Crown’s theory of the case, which was set forth in extended written and oral submissions. [ 35 ] Distilled to its essence, however, I think that theory generally can be summarized as follows: • Mr Fast is said to be a highly intelligent and determined fraudster. • In broad terms, he used his extensive experience in the hair styling industry and familiarity with its regulation, to weave an elaborate web of deliberate misrepresentations and omissions designed to avoid regulation and lower his operating costs, while maintaining an important revenue stream for his business by intentionally deceiving those enrolling in The DeVog Program; i.e., by leading to believe they were engaged in a program that would formally advance them on their path to licensing exam readiness, when they were doing no such thing. • Without limiting the generality of the foregoing, it is said: o that Mr Fast embarked on a scheme intended to deceive enrollees in The DeVog Program into thinking that the new course continued to form part of a recognized path to licensing exam readiness, when it did not; o that Mr Fast sought to evade detection in that regard by deliberately misrepresenting the nature of The DeVog Program to Ms Waik at the MTCU, in order to obtain an exemption from PCC-regulation that never should or would have been granted had Mr Fast been more forthcoming; o that Mr Fast misled and/or withheld important information from his staff at DeVog about the purpose and implications of PCC- decertification, as a means of ensuring that important information about the true nature and limitations of the new course would be concealed from enrollees and government officials; o that Mr Fast directly and indirectly misled such enrollees by ensuring that important information would be omitted and/or obscured during marketing efforts and the execution of resulting contracts, such as information about the alternative paths to licensing exam readiness, DeVog’s withdrawal from PCC-regulation, the need for apprenticeship status, the fact that enrollees would not receive required theory training at DeVog, that enrollees still would be required to take L1 and L2 courses or corresponding exemption tests, and

that further fees would be required in that regard; o that Mr Fast had no intention of ensuring compliance with even the minimum course prerequisite of apprenticeship status, (used in a deliberately misleading fashion to secure a PCC exemption for The DeVog Method), as reflected in the belated and haphazard fashion in which such registrations were addressed, especially as The DeVog Method came under increasing scrutiny by the MTCU; o that Mr Fast, in a determined effort to perpetuate his fraudulent scheme, continued to misrepresent the nature of The DeVog Method and its enrollees, (e.g., by suggesting they were registered and/or paid apprentices when they were not), in further communications with representatives of the Apprenticeship Branch and the PCC Branch; and o that Mr Fast similarly resisted efforts by regulators to question and examine his fraudulent scheme by failing to provide timely and complete information in response to inquiries. • The Crown says that, in the course of doing all that, Mr Fast inflicted substantial deprivation on those who enrolled in The DeVog Program.

In particular, the enrollees or those supporting them invested substantial time and money in The DeVog Method, which could have been devoted elsewhere, pursuing a course that did not provide them with what they had expected; i.e., formal advancement on a recognized path to licensing exam readiness. There were also allegations that the enrollees had been exploited in other ways; e.g., by performing hair styling services on paying customers, while receiving nothing in return.

Defence theory of case [ 36 ] I similarly will not attempt to replicate, at length and in detail, the entirety of the defence theory of the case, which was set forth in extended oral and written submissions, (with the latter encompassing some 309 pages). [ 37 ] Distilled to its essence, however, I think that defence theory of the case generally can be summarized as follows: • This entire proceeding represents a horrible miscarriage of justice. • Mr Fast is by no means a fraudster, and he had no intention whatsoever of deceiving or misleading anyone to inflict deprivation on those taking The DeVog Method, or anyone else.

To the contrary, he is a thoroughly honest and ethical professional who takes the welfare of hair styling trainees extremely seriously. • In particular, for legitimate reasons, (including the provision of a program he thought would be beneficial and cost-effective for enrollees), he adopted an alternative business model that was the result of careful thought, discussion and planning with his staff at DeVog, and intended to be fully compliant with the government regulatory framework. • He did so candidly and openly, taking proactive steps to ensure such compliance; e.g., by voluntarily engaging in the PCC exemption process, which was not required. • He also did so taking a myriad of steps to ensure that those enrolling in the program would be fully aware of what the new course did and did not offer and entail. • He had no intention of DeVog offering, or suggesting directly or indirectly that DeVog was offering, a course of the same nature as its former PCC-regulated course.

He firmly denies that any intentional misrepresentations or omissions were made in that regard. • When complications, concerns and possible misunderstandings emerged during offering and implementation of The DeVog Method, (on the part of enrollees, their parents, and/or government officials), Mr Fast took active steps to openly address and remedy such concerns.

However, he feels he did so in an environment where the regulatory “goal posts” were either unclear or constantly shifting. • He feels strongly that he has been the victim of unfounded gossip and misunderstandings, persecution, personal vendettas and “tunnel vision”; e.g., at the hands of Ms Waik, Detective Whitford and the Crown. From the perspective of Mr Fast, they all seem unfairly determined to view events and communications in a nefarious light, while ignoring clear and reasonable exculpatory information, documentation and explanations.

General principles [ 38 ] Before proceeding with a discussion of the law applicable to the fraud charges against Mr Fast, and an analysis of whether the Crown has satisfied its burden of proof in that regard, I think it appropriate to note fundamental principles I have in mind throughout this process. [ 39 ] As a first general observation in that regard, I note that, although the majority of evidence at trial emanated from Crown witnesses and documentary exhibits, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simply counting witnesses, as quality of evidence may very well prevail over quantity.

As the trier of fact, I therefore am entitled, for example, to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence. [ 40 ] Next, I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(

d) of the Charter of Rights , Mr Fast is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offences beyond a reasonable doubt. That is a heavy burden and, in relation to elements of the charges against Mr Fast that are not admitted, never shifts. In particular, Mr Fast has no obligation whatsoever to establish his innocence.

[41] In that regard, although Mr Fast chose to testify on his own behalf in this case, I also am mindful of the principlesunderscored by R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized thatreasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused.

Forexample, in this particular case: • It would not be appropriate to decide this case by simply determining whether I accept or reject the testimony of Mr Fast. • I instead have to consider all the evidence, and decide whether I have been satisfied beyond a reasonable doubt that all the essentialelements of the crime charged have been established. • Certainly, if I believe and accept Mr Fast’s testimony, then I obviously must acquit him. • However, even if I do not believe and accept Mr Fast’s testimony, I must still acquit him of the crimes charged if his testimonyraises a reasonable doubt in my mind; i.e., as to whether the essential elements of the offence have been established. • Moreover, even if I do not believe Mr Fast’s testimony, and his testimony does not leave me with a reasonable doubt, I must stillask myself whether, having regard to the evidence I do accept, and looking at the case in its totality, I am convinced that he is guiltybeyond a reasonable doubt; i.e., because the essential elements of the offence have been established beyond a reasonable doubt. [42] A reasonable doubt is not an imaginary or frivolous doubt.

Nor is it a doubt based upon sympathy or prejudice. Rather, it is adoubt based on reason and common sense, logically derived from the evidence or absence of evidence. See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39. [43] With the above preliminary observations, I turn now to a review of the law governing the particular crimes alleged to havebeen committed by Mr Fast. Fraud – Essential elements [44] The charge brought against Mr Fast, in each count of the indictment, is brought pursuant to s.380(1)(

a) of the Code, whichreads as follows: 380.

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaningof this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars. [45] The nature and essential elements of the offence of criminal fraud embodied in s.380(1) of the Code have been clarified andconfirmed by the Supreme Court of Canada in cases such as R. v. Smithers, (SCC), [1978] 1 S.C.R. 506; R. v. Olan,[1978] 2 S.C.R. No. 57; R. v. Theroux, (SCC), [1993] 2 S.C.R. 5; and R. v.

Zlatic, (SCC), [1993] 2S.C.R. 29, a companion decision released at the same time as R. v. Theroux, supra. ACTUS REUS [46] Through such decisions, the Supreme Court of Canada has confirmed that, to establish the actus reus of criminal fraud, theCrown generally must prove two things beyond a reasonable doubt. [47] First, the Crown must prove beyond a reasonable doubt that the accused engaged in a prohibited act; i.e.,

an act of deceit,falsehood or some “other fraudulent means”. In that regard: • The three types of possible “fraudulent means” mentioned in s.380(1), (i.e., deceit, falsehood or the residual description of “otherfraudulent means”), are disjunctive. Not all of them need be proven beyond a reasonable doubt to establish the actus reus of the offence.

Proof of any one of them beyond a reasonable doubt will suffice. • The first two types of fraudulent means expressly identified in s.380(1) of the Code, i.e., “deceit” and “falsehood”, have establishedmeanings, routinely incorporated into standard jury instructions for charges of criminal fraud, (as reflected in the second edition of WattsManual of Criminal Jury Instructions, at p.1000), which in turn have been upheld by courts; e.g., in cases such as R. v. Stephensen, 2006BCCA 25 , [2006] B.C.J. No. 105 (C.A.).

In particular: o “deceit” involves an untrue statement made by a person who knows that it is untrue, or has reason to believe that it is untrue andmakes the statement despite that risk, to induce another person to act on it as if it was true, to that other person’s detriment; and o a “falsehood” is a deliberate lie. • The third or residual category of “other fraudulent means” mentioned in s.380(1) was not expressly defined by Parliament.

However: o As the Supreme Court of Canada has clarified and confirmed, underlying all forms of “fraudulent means” mentioned in s.380(1) ofthe Code is the general concept of dishonesty; i.e., dishonesty which might manifest itself in deceit, falsehood or some other form.

Whether or not a particular act falls within the residual concept of “other fraudulent means” accordingly is determined objectively byreference to what a reasonable person would consider to be a dishonest act or dishonest dealing. o For example, and as noted by the Supreme Court of Canada, the concept of “other fraudulent means” has been held to include the useof corporate funds for personal purposes, exploiting the weakness of another, unauthorized diversion of funds, unauthorized arrogation offunds or property, and non-disclosure of important facts.

o On the latter point, a number of courts have emphasized that “other fraudulent means” may include cases of omission where, throughsilence, an accused hides from another person fundamental and essential information in circumstances where the omission or silencewould mislead a reasonable person. See, for example: R. v. Emond (1997), (QC CA), 117 C.C.C. (3d) 275(Que.C.A.), at paragraphs 29-3-; and R. v. Drake, (ON SC), [2006] O.J. No. 129 (S.C.J.), at paragraph 45, affirmed2009 ONCA 560 , [2009] O.J.

No. 2886 (C.A.). • Although dishonesty underlies all forms of fraudulent means mentioned in s.380(1) of the Code, the Supreme Court of Canada alsohas noted that, where the fraud alleged is by deceit or a falsehood, the trier of fact need not consider whether the reasonable personwould find it dishonest.

All that need be determined, in such cases, is that the accused, as a matter of fact, represented that a situationwas of a certain character when, in reality, it was not. [48] The second thing the Crown must prove beyond a reasonable doubt, to establish the actus reus of criminal fraud, is that theprohibited act caused deprivation to the victim.

In that regard: • The Crown may satisfy the requirement by proof of resulting actual detriment, prejudice or loss experienced by the victim, or byproof of resulting risk of prejudice to the economic or pecuniary interests of the victim. • In other words, proof of economic loss is sufficient but not essential to make out the offence. The imperilling of an economicinterest also will suffice, even where no actual loss has been suffered. • The accused need not be the sole cause of such a deprivation, in order to satisfy the actus reus of fraud.

However, the accused’sconduct must have contributed to the deprivation, outside of the de minimus range. • Moreover, the Crown need not prove that a particular complainant was deceived by representations. [49] The actus reus of criminal fraud therefore generally exists whenever it is proved beyond a reasonable doubt: i. that a person deceived, lied or otherwise acted dishonestly; and ii. that his or her doing so caused or risked deprivation to another. [50] However, when criminal fraud is prosecuted by indictment pursuant to s.380(1)(

a) of the Code, the third and final thing theCrown must prove beyond a reasonable doubt to establish the actus reus of the charged offence is that the subject matter of thedeprivation or threatened deprivation had a value in excess of $5,000.

MENS REA [51] As for the mens rea of the criminal fraud offence, the Supreme Court of Canada has confirmed that the Crown generally mustprove two things or characteristics beyond a reasonable doubt. [52] First, the Crown must prove beyond a reasonable doubt that the accused had subjective knowledge or awareness of theprohibited dishonest act; i.e., that he or she meant to say and/or do those things which amount to deceit, falsehood or other fraudulentmeans.

In other words, the Crown must prove beyond a reasonable doubt that the accused deliberately or knowingly engaged in orundertook the conduct which constituted such dishonest acts. In that regard, as emphasized by the Supreme Court of Canada: • It must be remembered that the requirement of intentional fraudulent action excludes mere negligent misrepresentation.

It alsoexcludes improvident/unwise business conduct, or conduct which is sharp in the sense of taking advantage of a business opportunity tothe detriment of someone less astute. • The accused must intentionally deceive, lie or commit some other fraudulent act for the offence to be established. Neither anegligent misstatement nor a sharp business practice will suffice, because in neither case will the required intent to deprive by fraudulentmeans be present. A statement made carelessly, even if it is untrue, will not amount to an intentional falsehood, subjectivelyappreciated.

Nor will any seizing of a business opportunity, which is not motivated by a person’s subjective intent to deprive by cheatingor misleading others, amount to an instance of fraud. • In short, the focus of criminal fraud is restricted to deliberately practised dishonest acts. • As noted in R. v. Egmond, supra, at paragraph 53, criminal fraud does not extend to cases of person acting in error, out of stupidity,by inadvertence, or incompetence. Similarly, as emphasized in R. v. Milec, [1996] O.J.

No. 3437 (C.A.), at paragraph 16, a meticulousline must be drawn between cases where a person was “scrambling” and resorting to desperate measures in an effort to save and preservea crumbling business owing to the realities of commercial life, and cases where a person knows that he or she was acting fraudulently inthe course of doing so. [53] Second, to establish the requisite mens rea of criminal fraud, the Crown also must prove beyond a reasonable doubt that theaccused had subjective knowledge or appreciation that a consequence of the prohibited act could be deprivation of another, in the senseof causing another person to lose his or her pecuniary interest in certain property or economic expectations, or in placing that interest atrisk.

In other words, the Crown must prove beyond a reasonable doubt that the accused was aware that such deprivation or risk ofdeprivation could follow as a likely consequence of the prohibited act.

In that regard: • The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accusedsubjectively appreciated those consequences, at least as a possibility. • In applying that subjective test, the court looks to the accused’s intention, and the facts as the accused believed them to be. • The question is whether the accused subjectively appreciated that certain consequences could follow from his or her acts, and not

whether the accused believed his or her acts and their consequences to be moral. In other words, a person is not saved from conviction simply because he or she personally feels there is nothing wrong with what he or she is doing. [ 54 ] In short, the two characteristics or components of mens rea that must be proved beyond a reasonable doubt reflect the fundamental principle that, before the law will impose a criminal sanction, an accused must act knowingly and understand the consequences of his or her actions.

SUMMARY [ 55 ] To summarize, combining the actus reus and mens rea requirements outlined above, a finding of guilt in relation to s.380(1) (

a) of the Code effectively requires Crown counsel to prove, beyond a reasonable doubt, each of the following five essential elements: i. that the accused engaged in a prohibited act of deceit, falsehood, or some other form of conduct a reasonable person would consider to be a dishonest act. ii. that the accused, by engaging in the prohibited act, caused or risked deprivation to the victim; iii. that the subject matter of the deprivation or threatened deprivation had a value in excess of $5,000; iv. that the accused deliberately or knowingly engaged in deceit, falsehood or other dishonest acts; and v. that the accused knew or was aware that deprivation or risk of deprivation could follow as a likely consequence of the prohibited act. [ 56 ] Where the Crown succeeds in proving all five of those essential elements beyond a reasonable doubt, an accused must be found guilty of criminal fraud, contrary to s.380(1) (

a) of the Code . [ 57 ] However, where all those essential elements of the actus reus and mens rea have not been proved beyond a reasonable doubt, the accused must be found “not guilty” of a s.380(1) (

a) offence.

Analysis [ 58 ] With the above principles in mind, I turn to an analysis of whether or not the Crown has proven any or all of the charges against Mr Fast beyond a reasonable doubt. [ 59 ] So as not to prolong the suspense of Mr Fast, I will indicate at the outset of my analysis that I intend to find him not guilty of all charges in the indictment. [ 60 ] In making that indication, I nevertheless also will note at the outset, just as quickly, that my intended verdicts by no means reflect any agreement on my part with the suggestions by defence counsel that the criminal charges against Mr Fast were self-evidently devoid of merit. [ 61 ] To the contrary, I was presented with substantial evidence, from many witnesses whom I considered to be credible and reliable, strongly suggesting that: a.

In the particular circumstances of this case, not enough may have been said or done, by those directly engaging with potential or new enrollees in The DeVog Program, to make it clear to such enrollees, paying fees for instruction from the same “DeVog” entity which had provided PCC training, offered at the same physical premises where a PCC program previously had been offered, (and in some cases was still being offered to the final DeVog PCC enrollees being “trained out”), by instructors previously engaged in delivery of the PCC program, that the business model had fundamentally changed, that DeVog was providing something significantly different and in notable ways less than what it had provided before through its PCC program, and that the enrollees necessarily had embarked on a fundamentally different path to ultimate attainment of their desired hairstyling licence; a path in respect of which The DeVog Program was an optional complement, and not something that would obviate the need to complete otherwise required steps on the path to licensing exam readiness. b.

Such distinctions may have been quite clear in the minds of some, (including Mr Fast and others at DeVog familiar with the applicable regulatory regime), but I think it clear they would not easily have been grasped by lay persons largely unfamiliar with the intricacies of the regulated paths to achieving such a licence, who accordingly may not have appreciated the corresponding significance or insignificance of information and representations they may or may not have been receiving. c.

In the early stages of this case, I frankly experienced a good deal of that phenomenon myself, as Crown counsel’s prosecution of the case included a decision to call numerous enrollees in The DeVog Program, (and a mother of one such enrollee), to testify about matters including what they were and were not told about the program and what they experienced, before I was presented with any contextual evidence, (e.g., from Ms Waik, Mr Ravary and Ms Sherle-Thompson), to explain and make clear the different regulated paths to obtaining a hairstyling licence, and therefore what representations and information may or may not have been important in that regard.

The full significance of what may have been said or left unsaid became clear to me only after I came to learn much more about that regulatory framework. [ 62 ] I similarly was presented with substantial evidence, from numerous witnesses I considered to be credible and reliable, indicating that they effectively had been persuaded, through misrepresentations and/or material non-disclosures, especially during the tour and contract execution process, to part with fees for The DeVog Method substantially in excess of $5,000, and that they had

experienced corresponding delays, unexpected challenges and/or complete frustration in completing their desired career paths because there were misrepresentations or non-disclosures of important information in relation to The DeVog Method.

In other words, I received substantial evidence capable of establishing deprivation in the sense required for criminal fraud. [ 63 ] Moreover, if it was established beyond a reasonable doubt that Mr Fast knowingly and deliberately engaged in deceit, falsehood and/or other fraudulent means as alleged, (e.g., by instructing or encouraging employees to misrepresent or withhold material information from enrollees and/or their parents concerning the true nature of The DeVog Program to encourage their enrolment, by withholding important information from his own staff at DeVog to promote that result, and/or by misleading government regulators to discourage intervention that would have prevented such enrolment), it seems to me that a reasonable inference, (and perhaps the only reasonable inference in the circumstances), was that Mr Fast subjectively knew or appreciated that a possible consequence would be deprivation or threatened deprivation of enrollees and/or those financially supporting them.

In particular: • Mr Fast clearly was familiar with alternative paths to obtaining a hairstyling licence, and knew that each required varying investments of time and money. • Mr Fast therefore realistically would have known that, if fraudulent means were used to encourage persons intent on pursuing a hairstyling licence (or those funding them) to devote money and/or time to The DeVog Program, such persons would be deprived of the ability to use such time or money to the completion of paths to licencing they actually intended to pursue, or would have pursued had they not been misled.

Alternatively, Mr Fast realistically would have known there was a serious risk of that happening. [ 64 ] In short, far from being a case clearly devoid of merit, as suggested by the defence, there was a great deal of credible and reliable evidence before me to support arguments that, at the very least, the actus reus of criminal fraud, and an important element of mens rea , were capable of being proved beyond a reasonable doubt. [ 65 ] For related but additional reasons, I similarly was not persuaded or impressed by repeated and passionate suggestions by defence counsel, (no doubt reflecting the equally or more passionate beliefs of Mr Fast), that these criminal proceedings obviously revealed or reflected intentionally abusive and inappropriate persecution of Mr Fast by individuals such as Ms Waik and Detective Whitford, who were said to be motivated by some form of personal vendetta or bias.

That simply was not my objective impression. To the contrary: • Ms Waik presented as a knowledgeable, sincere and dedicated public servant who takes her responsibilities quite seriously.

When it came to her attention that young people embarking on careers in hairstyling were receiving instruction in that regard from DeVog, apparently without a clear understanding of how doing so might or might not help them progress towards their desired goal of obtaining a hairstyling licence, (e.g., mistakenly thinking they were engaged in a course offering benefits similar to the 1500 hour PCC-regulated course previously offered by DeVog), and possibly in contravention of the system created by the Legislature to ensure regulation and oversight in that regard, Ms Waik acted quickly to investigate and address the situation.

It seemed clear to me that her urgent goal was not persecution of Mr Fast, but protection of DeVog enrollees. • I saw nothing in the testimony or conduct of Detective Whitford, including his interactions with Deb Armstrong in advance of her Reply testimony, to support similar allegations of unfair persecution and/or vindictive conduct. Certainly, Detective Whitford acted inappropriately in providing Ms Armstrong with an outline of previous testimony in this proceeding, in contravention of the witness exclusion order I made at the outset of this trial. He should have known better.

However, my objective impression of the evidence in that regard suggested careless mistake rather than deliberate malice.

More generally, given the substantial and credible evidence to which I already have referred, it seems to me that Detective Whitford clearly would have been remiss not to refer this matter to the Crown, which obviously had ultimate responsibility for deciding whether and how this criminal prosecution would move forward. [ 66 ] I instead intend to find Mr Fast “not guilty” of the charges set forth in the indictment because, regardless of what Crown counsel may or may not have been able to prove in relation to other essential elements of criminal fraud, I am not persuaded beyond a reasonable doubt that Mr Fast had the first required characteristic of the mens rea necessary for such an offence; i.e., that he knowingly and deliberately engaged in prohibited dishonest acts of deceit, falsehood or other fraudulent means. [ 67 ] I say that for a good many reasons, which I do not intend to set out exhaustively.

As I indicated at the outset, I think it sufficient, for present purposes, to give only numerous examples of the sort of matters I considered and relied upon in that regard. [ 68 ] First and foremost, in that regard, is the testimony I received from Mr Fast himself.

In very prolonged testimony extending over the course of approximately 16 days of trial, (including some 11 days of examination-in-chief and 5 days of cross-examination), with at least three extended interruptions, Mr Fast provided a sustained narrative outlining, explaining and emphasizing his good faith intentions throughout the events leading to this trial, and his firm denial of any intention to deceive or mislead anyone through deliberate falsehoods or omissions.

In that regard: • Mr Fast emphasized, repeatedly and in many different ways, that he has dedicated himself to his vision of empowering hairstylists – especially those without the career options that wealth, high intelligence or prolonged study and effort might provide – by giving them a much higher standard of skills, going well beyond that offered by normal basic training and practice, in turn making such trainees much more marketable and successful, with m

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