2014 QCCQ 8927, 2014 QCCQ 8927

Unofficial English Translation R. c. Dupuis 2014 QCCQ 8927 JL 1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “ Criminal and Penal Division ” No.: 500-01-037067-102 DATE: September 26, 2014 ____________________________________________________________________ PRESIDED BY: THE HONOURABLE DENIS LAVERGNE, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutrix v.

JOCELYN DUPUIS Defendant ____________________________________________________________________ JUDGMENT ____________________________________________________________________ [ 1 ] Further to a judgment of the Court ordering a separate hearing on one of the charges, the defendant must now respond to the following offences: [ translation ] 1.

Between December 2, 2007, and November 11, 2008, at Montreal, District of Montreal, by deceit, falsehood or other fraudulent means, did defraud FTQ-Construction of an amount of money exceeding five thousand dollars, thereby committing the indictable offence set out in section 380(1) (

a) of the Criminal Code ; 2. Between December 2, 2007 and November 11, 2008, at Montréal, District of Montreal, did make some 180 false documents, knowing them to be false: 40 fake weekly expense reports supported by 140 fake restaurant receipts, with the intent to induce FTQ- Construction, by the belief that these documents were genuine, to reimburse it for such amounts, thereby committing the indictable offence set out in sections 366(1) (

b) and 367 (

a) of the Criminal Code ; 1 – BACKGROUND FACTS [ 2 ] The defendant, director-general of the construction union (“FTQ-Construction”), affiliated with the Fédération des travailleurs du Québec (“FTQ”), since 1997, filed forty-three [ translation ] “expense reports” [1] with the accounting department of the union for expenses incurred in the performance of his duties during the eleven months specified in the charges, for which he claimed and obtained reimbursement. [ 3 ] Handwritten supporting documents were filed with these expense reports relating to hotel, restaurant and automobile expenses. [ 4 ] The police investigation revealed that most of the supporting documents consisting of handwritten receipts turned out to be false in that: • either they are fictitious, that is, the documents do not appear to have been signed by an employee of the establishment where the expense was incurred and do not correspond to any of the credit cards used by the defendant for payments or to any of the bills made out by the establishment; • or the amount claimed exceeds the expense actually incurred, thereby created inflated invoices. [ 5 ] For the purposes of the trial, the prosecution focussed on the supporting documents from six restaurants, although there were over 200 documents apparently issued by a multitude of establishments throughout the province: - Gibbys;

- Hawgs Deli; - La Cantina; - La Vieille Cheminée; - Sterlings; - Zibo. [ 6 ] The prosecution specified that the amounts claimed for these restaurants represented 61% of the restaurant expenses reimbursed over the time period specified in the charges. [ 7 ] Incidentally, it should be noted that, according to the uncontradicted evidence, the union was aware of the defendant’s extravagant lifestyle as appears from the excessively high restaurant bills revealed by the evidence and the defendant’s [ translation ] “expense reports” which were presented monthly to the Executive Committee (the “Committee”) of FTQ-Construction, which totalled $225,000 for the period at issue, and which for all intents and purposes were never contested. [ 8 ] Although this aspect was present throughout the duration of the trial, it must be made clear that it has nothing to do with the nature of the charges brought against the defendant or the facts underlying them. [ 9 ] Moreover, Rolland Brillon, an accountant with FTQ-Construction for the past 32 years, stated that, at the time, there was no union policy or regulation governing claims for restaurant or other expenses. [ 10 ] Before concluding this

summary of the background facts, it is worth highlighting the following uncontradicted evidence, which was not really contested by the defendant. [ 11 ] First, Pascale Boutin, expert forensic accountant witness, collected the results of the analysis of several documents in a report (exhibit P-18). [ 12 ] Her testimony and report reveal the following conclusions: - she reviewed the 43 [ translation ] “expense reports” covering the period at issue, which had been signed and presented by the defendant for reimbursement, supported by 287 receipts or bills; - 209 receipts were handwritten; - 144 of these receipts, totalling $63,279.03, appeared to have been issued by one of the establishments specified above; - no bills or proofs of credit card payment were found for seventy-three of these receipts for payments of $43,379.55; - the 71 remaining receipts, totalling $19,899.47, proved to be wrongfully inflated restaurant receipts; - only 4 of the 43 [ translation ] “expense reports” proved to be free of any irregularity; they concern the following periods: • March 1 to 30, 2008; • September 14 to 20, 2008; • September 28 to October 4, 2008; • October 26 to November 1, 2008. [ 13 ] Moreover, Jean Dumont, forensic document specialist and expert witness, compared the writing and signature appearing on 57 documents including expense reports from the period at issue, all taken to be in the defendant’s handwriting, with those on 315 documents in dispute, which were receipts submitted as supporting documents (forensic document expert report, exhibit P-12). [ 14 ] The expert witness concluded that the person who signed the comparison documents is the same person who signed the 284 documents at issue.

More particularly, the signature “Jocelyn Dupuis” on thirty-six documents and that appearing on the comparison documents were affixed by the same person. [ 15 ] Moreover, the given names of various persons on twenty of the litigious documents and the name of “Jocelyn Dupuis” appearing on the comparison documents were also signed by the same hand. [ 16 ] The expert witness was of the view that eighty-four other litigious documents [ translation ] “were probably drafted” by the same person as the comparison documents. [ 17 ] In fact, the expert witness identified only seven documents at issue that were not made by the defendant. 2 - THE DEFENDANT’S POSITION [ 18 ] The defendant, who chose not to testify, acknowledges that the documents filed in support of the [ translation ] “expense reports”, which are the subject of the documentary evidence and the testimony of Ms.

Boutin and Mr. Dumont, constitute false documents to the extent that they are not what they appear to be, namely, acknowledgements of amounts paid in full for meals.

[ 19 ] He admits that, at the very least, a presumption of fraud exists, but affirms that it is less clear in light of the specific context he outlines. [ 20 ] His argument rests on two propositions. [ 21 ] According to the first proposition, the amounts reimbursed to the defendant on the strength of the false receipts correspond to actual expenses of various types that the defendant paid in cash during various union activities, including, inter alia , provincial tours by the union leaders or labour demonstrations. [ 22 ] The defendant acknowledges that this highly questionable manner of proceeding may be crude, but he is quick to add that it is not illegal. [ 23 ] Fraud within the meaning of the Criminal Code requires: • a prohibited act, either deceit, falsehood or other fraudulent means; • deprivation caused by this prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk. [2] [ 24 ] In

summary, fraud arises from a dishonest act or dishonest conduct. [ 25 ] The offence of fraud also includes an element of intent that requires evidence that the perpetrator knowingly committed the prohibited act and was aware of the risk of deprivation that could ensue. [ 26 ] The defendant submits, first, that there is no dishonest act in this case since the expenses for which he seeks reimbursement exist even if the means chosen to establish them are not the most transparent; further, and consequently, deprivation, which is the second element of fraud, may not be inferred from

an act or conduct that is not dishonest. [ 27 ] Moreover, FTQ-Construction, the alleged victim, cannot claim any pecuniary damage because it has not been deprived of anything: the restaurant expenses, falsely substantiated by both fictitious receipts and receipts for meals that were indeed had but that were inflated, sometimes significantly, were in actual fact equivalent to the cost of a multitude of union activities paid for by the defendant in the performance of his duties.

At the end of the day, these were expenses that benefitted the union and the workers. [ 28 ] Similarly, the offence of forgery set out at section 366(1) of the Criminal Code requires three elements: a false document, the accused’s knowledge that he or she is making a false document, and the specific intent that the false document be used to cause prejudice to another. [3] [ 29 ] As there has been no prejudice, for the same reasons set out previously, the charge of forgery under

section 366 of the Criminal Code cannot stand. [ 30 ] Moreover, the defendant insisted that everyone – and especially those within the decision-making body of FTQ-Construction – was aware of his way of doing things.

This is reflected in the second proposition the defendant submits to refute the charges. [ 31 ] It can be stated as follows. [ 32 ] Essentially, as the defendant’s practice of paying for various activities here and there out of his own pocket for the benefit of the workers was known to everyone, the [ translation ] “expense reports” submitted monthly to the Committee of FTQ-Construction not only never gave rise to any serious opposition, they were even approved by this very same Committee for the purposes of payment. [ 33 ] Consequently, this practice, which was seen, known and consented to by the Committee on behalf of FTQ-Construction, cannot be considered dishonest.

It goes without saying that if there is no factual basis for the charges, the issue of the required criminal intent becomes moot. [ 34 ] Finally, the defendant claims that the factual evidence on this point is weak, such that it opens the door to reasonable doubt. [ 35 ] Ms.

Boutin’s inquiry consisted of trying to connect entries on the defendant’s credit card statements with the handwritten receipts filed as documents in support of the [ translation ] “expense reports”. [ 36 ] This review led to the discovery of false documents and inflated invoicing. [ 37 ] She did not go further than the credit card statements, however, and failed to investigate whether the defendant’s bank cards (exhibit D-1, for example) could have been a method of payment.

Thus, according to the defendant, the possibility that the purchases were paid by bank card or cash withdrawals corresponding to a concurrent expense subsequently claimed as an expense incurred in the performance of his duties should not be ruled out. [ 38 ] The defendant submits that this is a weakness in the evidence that raises a reasonable doubt. [ 39 ] The Court will consider this as a third proposition in defence against the charges. [ 40 ] Consequently, in the analysis that follows, the Court will treat these three propositions separately, referring when applicable to the relevant testimony and evidence. 3 - ANALYSIS [ 41 ] As an introduction to the three propositions put forth by the defendant, it is worth briefly sketching a picture of common

practice within FTQ-Construction at the time in regard to the reimbursement of expenses incurred in the performance of duties. 3.1 Existing practice [ 42 ] The description of this practice essentially comes from the uncontested testimony of Rolland Brillon. [ 43 ] An accountant with FTQ-Construction for over three decades, Mr. Brillon works out of the union’s head office, which has about twenty employees.

He is under the direct authority of the defendant. [ 44 ] At the time of these facts there was no policy governing the reimbursement of meal, accommodation, or other expenses, and this has been true since he took on this position. There was no cap on such expenses or any restrictions with regard to the time period during which they could be incurred that would have limited their reimbursement. [ 45 ] In fact, Mr.

Brillon claims never to have received any instructions about the nature of expenses for which reimbursement may be claimed. [ 46 ] As appears from the voluminous documentation (exhibit P-2) grouping together the defendant’s claims, the [ translation ] “expense reports” are presented in the form of an unequally divided table comprised of seven categories relating to, among other things, [ translation ] “transportation”, [ translation ] “hotels” and [ translation ] “meals”, as well as boxes for the seven days of the week followed by the date on which the expense was incurred. [ 47 ] The following categories are also found at the top of the table: [ translation ] “expenses: travel and entertainment” and [ translation ] “organization”.

Under the heading [ translation ] “organization” are the following sub-headings: [ translation ] “coffee”, [ translation ] “telephone”, [ translation ] “lunch” and [ translation ] “comments”. [ 48 ] The claimant would fill out the form, indicate the amounts claimed at the appropriate place, and sign the form. [ 49 ] Mr. Brillon ensured that the amounts corresponded to the supporting documents, checked the corresponding category, and then affixed a stamp of his initials to confirm that the account had been verified and that a cheque had been issued. [ 50 ] According to Mr.

Brillon, the category [ translation ] “lunch” is distinct from that of [ translation ] “meals” in that it concerns [ translation ] “entertainment expenses”.

Thus, for example, for the period from December 2 to 8, 2007, the defendant claimed $1,810.24 in hotel expenses, $1,334.32 in meal expenses and $3,323.38 in entertainment expenses incurred on December 3, 7 and 8, the latter being a Saturday (exhibit P-2, p. 1). [ 51 ] There is also a form for [ translation ] “automobile expenses” reimbursed upon presentation, with no requirement to produce supporting documents. [ 52 ] At the time, cheques had to bear the signatures of the president and the secretary-treasurer of FTQ-Construction. For this purpose, Mr.

Brillon used a stamp of the president’s signature on the cheque. For the other signature, Mr. Brillon had several cheques already signed by the secretary-treasurer in his possession. [ 53 ] For all intents and purposes, Mr. Brillon had no authority to discuss his boss’s [ translation ] “expense reports”. His method of verification was limited to associating the expense with the supporting document. Essentially, the defendant’s signature at the bottom of the form was considered evidence of the admissibility of the claim. All that was left was for the accountant to process it. [ 54 ] Mr.

Brillon also confirmed the existence at the time of the use of handwritten receipts as supporting documents. [ 55 ] At the time, that practice had never been questioned. [ 56 ] He stated that several union leaders had been given credit cards by the employer, but that the defendant used his own personal credit card. [ 57 ] The Committee, which was composed of seven members, held a meeting every month. The president attended the meetings to present his report, among other things. He is not a member of the Committee. [4] [ 58 ] There was always one item on the agenda addressing that month’s expenses.

For this purpose, all the Committee members had a

summary of the receipts and disbursements. [ 59 ] A document (exhibit P-21) provides an example. During the trial, different expressions were used to refer to it, such as [ translation ] “general or

summary report”, [ translation ] “detailed report” and [ translation ] “financial statements”. [ 60 ] It may be inferred from the testimony given and the document that the

summary of receipts and disbursements is comprised of two parts. [ 61 ] The first, which the witnesses refer to as a [ translation ] “general or

summary statement” is usually on two pages and contains a multitude of categories related to receipts and disbursements. Many of these categories contain a reference to a numbered footnote. [ 62 ] The second part, the [ translation ] “detailed report” is a description of the notes that appear on the two page

summary. This

part is comprised of several numbered pages that are not consecutive to the pages of the

summary. For example, in regard to [ translation ] “entertainment expenses”, the

summary of receipts and disbursements for January 2008 indicates expenses of $31,384.08 with a reference to note 10. It is therefore necessary to consult the second part of the

summary, which is referred to in the questions and by the witnesses as the [ translation ] “detailed report” to find out the details. In this example, they are found at page 5 of the detailed report. The amount of $31,384.08 is broken down between individuals and legal persons. The amount of $26,631.54 is next to the defendant’s name.

[ 63 ] According to the evidence, all members of the Committee were given a copy of the

summary of receipts and disbursements but not the detailed report, which was meant for the secretary-treasurer. The union leaders and the president also had a copy.

To be clear, the other members of the Committee did not see the detailed report, although it was available. [ 64 ] A larger decision-making group of union leaders and representatives or [ translation ] “business managers” always met after the monthly Committee meetings. [ 65 ] The secretary-treasurer would read the financial statements, including a category covering [ translation ] “entertainment expenses”, as appears from exhibit P-21, although, as previously discussed, it was not broken down into individual expenses. [ 66 ] According to the testimony of Mr. Brillon, Mr. Grondin and Mr.

Kègle, these meetings could involve from 50 to 130 individuals, who would all receive the documents relevant to the agenda in advance. [ 67 ] According to the evidence, only once was a question raised during a meeting in regard to one of the defendant’s [ translation ] “expense reports”. It gave rise to a brief discussion, but went no further. [ 68 ] No financial statement presented at any of the meetings was met with opposition or any type of refusal whatsoever. [ 69 ] Moreover, it was established that the defendant’s [ translation ] “expert reports” processed by Mr.

Brillon disappeared from the office during the summer of 2008. [ 70 ] In the weeks that followed, allegations that the defendant was leading an extravagant lifestyle at the expense of FTQ- Construction reached the senior executives of the FTQ, among others. The media reported the story.

FTQ-Construction entered into a period of internal turbulence, which led to the decision to move up the triennial convention, which was supposed to be held the following March, to the fall of 2008. [ 71 ] The defendant left his position in November 2008. [ 72 ] The accounting expert report (exhibit P-18) reveals that, as of September 14, 2008, there were only four irregularities, whereas there were multiple irregularities during the period from December 2, 2007, and September 13, 2008.

For all intents and purposes, there are no longer any handwritten documents submitted as receipts. 3.2 The first proposition: There was no dishonest act. The amounts claimed correspond to an expense incurred by the defendant in the performance of his duties. • The relevant significant facts [ 73 ] Essentially, this proposition is based on the testimony of Mr. Alain Pigeon, Mr. Raynald Grondin and Mr.

André Kègle, who held and still hold management positions within the union movement. [ 74 ] As they were close to the defendant, their statements are in some respects akin to those of character witnesses ensuring the defendant’s integrity beyond any doubt. [ 75 ] These witnesses have endless admiration and respect for the defendant’s accomplishments for the benefit of the labour cause in general, and they recognize the various services he has performed for them in particular. [ 76 ] It is worth reviewing the main points. • Mr. Alain Pigeon [ 77 ] In around 2005 or 2006, Mr.

Alain Pigeon, who previously worked for a union affiliated to another central labour organization, accepted a suggestion from Mr. Lavallée, president of FTQ-Construction, and the defendant to become the president of the local union of tinsmiths and roofers, affiliated with FTQ-Construction. [ 78 ] His role was to organize the local union from the very beginning. [ 79 ] Subsequently, Mr.

Pigeon became a member of the Committee as recording secretary. [ 80 ] Given the consistency of his contact with the defendant, he confirms that the defendant was always available six or seven days a week during the busy periods, which were spring, summer, and fall. [ 81 ] He describes the various union activities that required FTQ’s attendance and participation. [ 82 ] As examples, he refers to one-off and spontaneous demonstrations and the May 1st labour march.

These varied activities generated unexpected and necessarily undetermined expenses, including the hiring of volunteers, to whom it was nevertheless considered appropriate to provide some compensation. [ 83 ] The defendant paid all these expenses in cash. Mr. Pigeon recalls two incidents when the defendant gave him $500, in both cases to cover the cost of meals he had paid for, without requiring any bill or receipt but merely on the strength of his verbal statement. The defendant said that he did not need to see any bill or receipt; he trusted him. [ 84 ] Mr.

Pigeon submits that the defendant never put the workers’ money into his own pockets. He had the Committee’s absolute trust. Openly and in plain view, he paid cash for expenses incurred for activities that ultimately benefitted the workers. [ 85 ] Moreover, on only one occasion was a question raised in regard to one of the defendant’s [ translation ] “expense reports” during

a Committee meeting. The discussion did not last more than two minutes. [ 86 ] Mr. Pigeon himself never saw any presentation of the figures concerning the defendant’s [ translation ] “expert reports”. [ 87 ] The Court accepts the following from his cross-examination: - He never ate at Gibby's Restaurant in St-Sauveur with the defendant or at the one in Montreal, even if his name appears on a receipt issued by that establishment; - It was necessary to submit bills to obtain authorization for the reimbursement of expenses. That is the position expressed by Mr. Pigeon to explain expenses that appeared inflated.

To be more precise, the example consisted of a receipt, or more precisely, a document attesting to the receipt of a particular amount. The witness believes that you would have to be blind not to understand that behind these sometimes extravagant meal expenses was the reimbursement of amounts paid by the defendant for and on the occasion of union activities. Although he had an idea of the procedure that was used to submit expense accounts, even though he in no way stated this at trial, Mr. Pigeon never saw any documents.

In any event, he maintains that [ translation ] “false invoices” were required; - All of the members of the Committee, and most importantly the president Mr. Lavallée himself, were aware of the defendant’s tactics.

His opinion that the president knew is based on a comment he made during a Committee meeting that he had no problem with the high expenses of the defendant, whose exceptional work he had moreover commended; - The Committee never discussed any issue concerning the falsity of the supporting documents; - He cannot really say that the defendant did not put any money in his pocket in forging the [ translation ] “expense reports”; despite the documentary evidence with which the prosecution confronted him, he in no way retracts his blind trust in the defendant; - He sees no reason why the expenses incurred by the defendant for various union activities were not entered under the various items of the monthly or yearly financial reports (exhibits P-20 and P-21) rather than allowing him to submit fictional or inflated claims; - He does not agree with the prosecution’s suggestion that it would have been simpler and more transparent to use a petty cash system; it would have been sufficient for the defendant to ask his subordinate, Mr.

Brillon, to issue a cheque in his name or give him cash for the expense he had incurred in the preceding days. The witness refers to what he calls [ translation ] “the structure” that had been in place for a long time. In his view, whether categorized as [ translation ] “false receipts” or [ translation ] “petty cash”, the end result is the same: the defendant was reimbursed for an expense incurred in the interests of the workers; - He acknowledges the changes put into place after the defendant’s departure.

Since then, all expenses have to be detailed, justified and supported by invoices submitted to the Committee.

Handwritten receipts are no longer accepted; - In response to the suggestion that the defendant modified the presentation of his [ translation ] “expense reports” in September 2008, he notes that this period corresponds with the time when the expense reports he submitted to his employer were publicly disclosed. [ 88 ] According to the witness, the disclosure of the defendant’s [ translation ] “expense reports” was part of a strategy concocted by persons who had decided to remain in their positions rather than leave the union as planned.

There was an internal struggle within the union, which the witness affirms had no connection with the [ translation ] “expense reports”. The defendant had already decided to resign from his position, although he reportedly declined an offer from the president to leave before the end of his contract. • Mr. Raynald Grondin [ 89 ] Raynald Grondin, director-general and secretary-treasurer of the Association des manœuvres inter-provinciaux (AMI), and vice- president of FTQ-Construction, knew the defendant in the 1980s when he worked in the construction industry.

The defendant ran the affairs of a local union. [ 90 ] In 2003, Mr. Grondin became a member of the Committee. [ 91 ] Over the years, the two men have developed a friendship. Mr. Grondin considers the defendant a friend with whom he always had a good relationship. They sometimes spend time together outside their professional relationship, in the United States or in restaurants with their spouses. [ 92 ] Like Mr. Pigeon, Mr. Grondin professes his utmost trust in the defendant’s honesty.

He would never steal from the union. [ 93 ] As director-general, the defendant was fully devoted to ensuring the coordination and proper functioning of all the unions affiliated with FTQ-Construction. He never counted his hours and was constantly available. [ 94 ] In particular, he testified to the defendant’s contribution to AMI, which allowed it to recover financially in the years after he took over.

As a result of the defendant’s work, AMI prospered in terms of recruitment, increasing its membership from 4,800 in 2003 to 10,000 at the present time. [ 95 ] Other examples of when the defendant paid expenses in cash or on his credit card include the purchase of promotional articles, tours of the province to meet with workers ending with a meal or at the bar, and planned and spontaneous union demonstrations. [ 96 ] In regard to Committee meetings, Mr. Grondin’s testimony is consistent with that of Mr. Pigeon. [ 97 ] The meetings were held every month.

Current business was addressed in accordance with a pre-established agenda. The president and director-general presented their reports. [ 98 ] The Committee would also review a financial report of the preceding month’s revenue and expenses, a copy of which was

provided in advance to all the members. The secretary-treasurer would read it aloud. This two-page document was referred to as [ translation ] “the general or

summary report” (exhibit P-21, pages 1 and 2). The witness never saw the multiple page detailed report. In other words, he never reviewed the details of the defendant’s monthly expenses and therefore never asked any questions in this regard, nor did the Committee itself, moreover, with only one exception. [ 99 ] The witness recalls one discussion concerning one of the defendant’s [ translation ] “expense reports”, but nothing more.

Aside from this incident, of which he does not remember any specific details, he never heard anyone talk about the defendant’s [ translation ] “expense reports” during the monthly meetings of the Committee, which, a fortiori , never raised any objection. [ 100 ] According to the witness, proceeding without asking any questions was not an unusual practice; it had been in place for a long time when he joined the Committee, and everyone was accustomed to it. Although he himself had no knowledge of how the defendant prepared his statements, Mr.

Grondin was convinced that all his expenses were incurred for services that benefitted the workers.

In return, it was only fair and normal that the defendant should be reimbursed. [ 101 ] A meeting of all the union representatives and directors of the local unions followed the Committee meetings. [ 102 ] According to the witness, this second meeting was in a way the actual deliberative and decision-making group, which would go over the same agenda items set for the preceding Committee meeting. [ 103 ] The defendant’s [ translation ] “expense reports” were not questioned during these meetings or those of the Committee. [ 104 ] Mr.

Grondin acknowledged that significantly tighter controls on expenses were implemented after the defendant’s departure from FTQ-Construction. He nevertheless maintains that until that time, everyone seemed fine with the procedures in place in regard to the [ translation ] “expense reports”. [ 105 ] The following was revealed in cross-examination: - Mr.

Grondin confirms that the defendant paid cash for many expenses related to various union activities; he cannot say why he did not use his credit card instead, or at least more often; - He states that the Committee was aware of this practice; everyone was aware and believed it was proper to reimburse the defendant for expenses incurred in the performance of his duties; - He is no more in agreement than his colleague, Mr. Pigeon, that a petty cash system would have been simpler and more transparent than creating false documents.

The witness explains that urgent and unexpected expenses do not lend themselves to an emergency [ translation ] “petty cash” system; for example, union representatives in outlying regions with an urgent need for cash could not efficiently resort to a petty cash system administered in Montreal. They would therefore address the defendant, who would provide them with the cash required; - Although everyone was satisfied with this way of proceeding, the witness paradoxically acknowledges that changes were required in the manner that accounts were presented, but attributed these unwanted changes to Mr.

Perreira’s inappropriate public criticism of the defendant’s expenses; - The witness insisted that the defendant had to recover the amounts he spent in the performance of his duties [ translation ] “from somewhere”; everyone was aware and in agreement with this manner of proceeding. He could not say, however, what he or anyone else knew exactly. In response to the question of whether he was seeing the handwritten receipts shown to him during the trial for the first time, he limited himself to stating that he had previously seen the defendant filling out [ translation ] “expense reports” in his office.

He did acknowledge that he was unaware that the defendant used to forged a waitress’s signature; - When questioned as to whether the Committee supported this method of inflating claims for meal expenses, the witness responds with an anecdote of a discussion with another Committee member about a significant expense the defendant had incurred the preceding day; it was agreed that the defendant should be reimbursed, but that a bill would have to be submitted to the accounting department.

The witness does not confirm, however, that the Committee endorsed the making of false documents; - He has no answer to the question as to why genuine receipts or bills were not used; - This is the first time that he has seen the documents submitted in the file establishing fictitious or inflated expenses. • Mr. André Kègle [ 106 ] Employed in the construction industry since the early 1970s, Mr. Kègle agreed to join FTQ-Construction in 2001 after having been sought out for this purpose by the defendant, among others. He had to accept a decrease in salary, however, of approximately 25%.

The defendant remitted the difference to him in cash every two weeks. He cannot say exactly when these payments occurred, but it was definitely after 2001. [ 107 ] There were also times when he consulted the defendant for advice on how to deal with certain expenses.

The defendant suggested that he pay them himself and then later reimbursed him in cash. [ 108 ] The defendant used his credit card to pay for the costs of their holiday celebrations. [ 109 ] He corroborated the testimony of the two other witnesses about the monthly meetings of the union leaders and representatives or [ translation ] “business managers”. [ 110 ] He himself never paid particular attention to the financial reports. He does not recall any dispute in this regard, but if there ever was any, there was no resulting decision rejecting or refusing anything.

[ 111 ] He was never informed of the method used by the defendant to submit his [ translation ] “expense reports”. - Analysis [ 112 ] In view of the context, the proposition that the accounts prepared and submitted for payment by the defendant corresponded to expenses actually incurred in the performance of duties for and in the interest of the workers defies common sense, logic, and reason. It does not raise any reasonable doubt. [ 113 ] The Court dismisses this proposition. [ 114 ] This does not mean that the testimonies of Mr. Pigeon, Mr. Grondin and Mr.

Kègle are lacking in sincerity or even truth about the various incidents they describe in which the defendant provided much-appreciated financial assistance by paying for various activities out of his own pocket. [ 115 ] These testimonies highlighting the defendant’s benevolent conduct, however, are more akin to anecdotes and generalizations than evidence with a convincing degree of reliability like to refute the prosecution’s allegations. [ 116 ] As the defendant held the position of director-general for eleven years, there was no way of knowing when the events that the witnesses mentioned took place or the details, no matter how brief, of the expense paid. [ 117 ] To support such a proposition based on vagueness and imprecision would be unreasonable in view of the uncontradicted evidence establishing 144 documents that are false in whole or in part, created over a period of approximately eleven months and totalling claims of $63,279.02. [ 118 ] The testimonies, particularly those of Mr.

Pigeon and Mr. Grondin, cannot create evidence. Moreover, their embarrassment was perceptible as they struggled to find a rational response to the false documents created by the defendant that the prosecution presented to them. In the end, they essentially reaffirmed the defendant’s honesty, convinced that he never stole anything from the workers. This is more of

an act of trust based on respect and friendship, which the actual facts prove to be wrong. [ 119 ] Another aspect of the testimonies of Mr. Pigeon and Mr. Grondin is worth mentioning briefly, even though it constitutes the basis of the second proposition discussed below. [ 120 ] They both assert that everyone – meaning the members of the Committee – was aware. [ 121 ] The problem with this assertion is that there is no serious evidence in the file indicating precisely what everyone allegedly knew. Essentially, it cannot be known, with any precision, what was known. [ 122 ] During cross-examination, Mr.

Pigeon and Mr. Grondin grudgingly acknowledged that the long-standing system or [ translation ] “structure” (to paraphrase Mr. Pigeon) inevitably entailed, by implication –and this is the Court’s expression – false invoicing. [ 123 ] In reality, this is all that the witnesses can say or deduce. [ 124 ] First, any attribution of knowledge of the existence of false documents in support of the [ translation ] “expense reports” to the other members of the Committee, who did not testify, has no probative value in the present case. Second, Mr. Pigeon and Mr.

Grondin were completely unaware of how the defendant actually went about justifying the [ translation ] “expense reports”. In this regard, they had never seen any document whatsoever before it was shown to them by the prosecution at trial. [ 125 ] Also, the statement that [ translation ] “everyone knew” is problematic in terms of logic and coherence. [ 126 ] The Court assumes that the statement [ translation ] “everyone knew” must necessarily refer not only to the princely meals in restaurants throughout the province, but also the union activities for which the defendant assumed the costs.

The comment made by the president of FTQ-Construction, as reported by one of the witnesses, that the defendant performed remarkable work, indicating that he had nothing more to say in regard to the “[ translation ] expense reports”, tends to support the view that [ translation ] “the remarkable work” was not limited to costly meals enjoyed by the defendant and his guests. [ 127 ] Since [ translation ] “everyone knew”, what was the purpose of hiding payments for activities recognized by all as legitimate by using handwritten receipts falsely issued by restaurants for meal expenses, and in some cases receipts that had not been in in use in the establishment for some time (exhibits P-4 and P-7)? [ 128 ] Such a stratagem is at odds with the position taken by the witnesses.

If the activities are neither secret nor illegal, and if everyone recognizes them as valuable contributions to the labour cause as well as the defendant’s right to be reimbursed for what he paid, then there is no need to hide, especially behind fake documents. [ 129 ] None of the witnesses were able to provide a rational answer to this inconsistency, precisely because there is none. [ 130 ] According to the evidence, the procedure in place at the time the [ translation ] expense reports” were submitted for approval was extremely flexible. It would have been sufficient for the defendant to provide Mr.

Brillon with bills for the goods and services he paid for out of pocket or even a simple confirmation of the amounts spent on demonstrations and regional tours. Moreover, as will be discussed in the analysis of the second proposition, the monthly and yearly financial reports of FTQ-Construction include expense categories in which the costs that the defendant personally assumed could have easily been inserted. [ 131 ] In R . v.

Hamann , [5] the Quebec Court of Appeal endorsed the position taken by the British Columbia and Ontario Courts of Appeal in previous decisions, whereby the truth of what a witness says is assessed on the basis of its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [6]

[ 132 ] The present case is no different.

Admittedly, on this issue at least, Hamann was concerned with the assessment of contradictory versions, which is not the case in the present matter, the fact remains that the prosecution relies on evidence of forgery, which the defendant acknowledges but attempts to refute the substance thereof with contradictory testimonies. [ 133 ] In any event, in terms of principles, the Court sees no reason not to apply the same assessment matrix to the facts of the present matter. [ 134 ] From the objective viewpoint of the reasonable observer, allowing for some perspective and a consideration of the context as a whole, it is not possible that $63,279.02, distributed among 144 documents that are false in whole or in part, coincides with expenses that were not otherwise declared but were incurred by the defendant in the performance of his duties. [ 135 ] Beyond the testimonies of Mr.

Pigeon, Mr. Grondin, and to a lesser extent, Mr. Kègle, which the Court rejects for the reasons stated above, there is nothing to support this proposition. 3.3 The second proposition: The defendant acted openly and in plain view of FTQ-Construction, which consented to pay the claims set out in the [ translation ] “expense reports” [ 136 ] This proposition rests essentially on the testimonies of Mr. Pigeon and Mr. Grondin.

They submit that the Committee members and apparently even the attendees of the expanded meetings following those of the Committee not only knew that the defendant was fully invested in his role of coordinating the affiliated unions and promoting the interests of labour, but also approved and consented to the reimbursement of his expenses, however high they might be. [ 137 ] Consequently, the prosecution cannot claim that FTQ-Construction was the victim of deprivation, since its decision-making bodies, consisting of the Committee and the extended assembly of union representatives and directors, approved the reimbursement of accounts claimed by the defendant by means of [ translation ] “expense reports”. [ 138 ] This proposition does not withstand the rigorous scrutiny of the facts that have actually been established. [ 139 ] It would, in fact, be more accurate to conclude that there is no evidence in the file capable of constituting a serious basis for the proposition that the Committee [ translation ] “knew” and [ translation ] “consented”. [ 140 ] At the outset, and for the reasons set out in the analysis of the first proposition, the Court reiterates that the testimonies of Mr.

Pigeon and Mr. Grondin, despite their sincerity, carry little weight. [ 141 ] Although they stated unequivocally that everyone [ translation ] “knew” that the defendant was paying for unexpected expenses out of his pocket and that they considered his reimbursement absolutely justifiable, they themselves never asserted that this deference went so far as to approve the making of false documents to be used as evidence of the expenses incurred.

It was only when questioned in cross-examination that the witnesses, faced with the realization of the false documents to which the prosecution referred, gave answers suggesting that [ translation ] “you would have to be blind not to see” and [ translation ] “that false receipts were required” to support the claims. [ 142 ] In fact, their testimonies provide no indication of what, according to them, the Committee knew.

Neither of them specified it; they never asserted that the Committee knew, approved or consented to the use of forgeries as evidence of expenses for union activities under the guise of meal expenses. It should be recalled that they themselves never saw such documents before the trial and did not know how the defendant established his expense accounts. [ 143 ] There is nothing in the evidence that clearly establishes what the Committee knew. The blindness that Mr. Grondin invokes is ultimately nothing more than an assumption. [ 144 ] Moreover, Mr. Pigeon and Mr.

Grondin are the only two of a possible seven members of the Committee who testified on this issue. [ 145 ] These considerations are sufficient to dismiss the allegation that the Committee was aware of and consented to the defendant’s deceit. [ 146 ] But there is more. [ 147 ] The sudden regularization observed in the defendant’s accounts as of September 2008 and the subsequent reform instituted by FTQ-Construction to tighten controls over expenses confirms the inconsistency of this second proposition as well as the first. [ 148 ] The conformity of the defendant’s accounts (with only a few exceptions) as of September 2008 that is revealed by the documentary evidence occurred after the falsification of the previous [ translation ] “expense reports” during the previous summer and the public disclosure of this fact. [ 149 ] The implementation of more rigorous controls over the expense accounts is incompatible or nearly so with the witnesses’ allegation that everyone was aware of the methods used by the defendant.

All may have been well until then, but clearly the union nevertheless realized that change was required in the management of expense accounts. [ 150 ] This circumstantial evidence is more closely aligned with the discovery of irregularities in regard to which a police inquiry was later undertaken to determine whether criminal charges should be laid. [ 151 ] How can the fact that these so-called union expenses or activities do not appear on the union’s accounting documents be explained?

The witnesses were unable to provide any reason they were not included. [ 152 ] The [ translation ] “expense report” form itself (exhibit P-1) includes the category [ translation ] “organization” and the sub-

category [ translation ] “miscellaneous”, which in no way prevents entry of the cost of union activities. There is also the sub-category [ translation ] “lunch”, which Mr.

Brillon states referred to entertainment expenses. [ 153 ] Moreover, FTQ-Construction’s financial report of December 31, 2007 (exhibit P-20), contains the following expense categories: [ translation ] “demonstration and negotiation”, [ translation ] “financial support to affiliates” and [ translation ] “raiding”. [ 154 ] The monthly summaries of receipts and disbursements (exhibit P-21) contain the following under [ translation ] “disbursements”: [ translation ] “entertainment expenses”, [ translation ] “demonstration”, [ translation ] “raiding”, [ translation ] “affiliation fee reimbursement” and [ translation ] “miscellaneous”. [ 155 ] It may be inferred from the evidence that the category [ translation ] “entertainment expenses” in the monthly

summary report of receipts and disbursements includes the amounts claimed by the defendant in the [ translation ] “expense reports”. As mentioned previously, a note in the category [ translation ] “entertainment expenses” refers to an allocation, which is simply a distribution among individuals of the amount spent under this category, although without indicating the nature of the expense. [ 156 ] The defendant submits that information about the accounts was available from the Committee if anyone asked.

This fact cannot be excluded. [ 157 ] The facts establish that neither the Committee nor the extended assembly ever considered the issue of the [ translation ] “entertainment expenses” claimed by the defendant, with one exception, when the president of FTQ-Construction ended the discussion by emphasizing the defendant’s remarkable work. [ 158 ] The Committee could not have been unaware of the defendant’s monthly expense accounts, which were at times quite high.

The fact that they did not ask any questions does not create the presumption that the Committee was aware and consented to the accounts being based on document that are false in whole or in part and made up to look like handwritten restaurant receipts. [ 159 ] In the best possible scenario for the defendant, the Committee was negligent in the management of the union members’ interests.

But the victim’s negligence, if any, is not a defence against a criminal charge, of which all constituting elements have been proved. [ 160 ] The prosecution submits that a negative inference should be drawn from the fact that the defendant did not cross-examine Mr. Brillon specifically on the practice at FTQ-Construction with regard to expense accounts and the relevant supporting documents, on which he bases his defence. [ 161 ] The prosecution invokes R . v . Dexter , [7] a decision of the Ontario Court of Appeal that applies the rule in Brown v.

Dunn . [8] [ 162 ] Essentially, this rule states that a witness whose credibility a party intends to challenge later in the trial by presenting testimony or other evidence contradicting the witness’s version on points that are significant to the resolution of the issues in dispute should be treated honestly and fairly.

Consequently, in principle, the role of the cross-examination is to alert the witness of this intention and to ask him or her questions on the issues in dispute. [ 163 ] A party that decides in such circumstances not to cross-examine the witness runs the risk of the Court believing that witness more than the witness whose divergent version of the issue in dispute remains uncontradicted. [ 164 ] Mr. Brillon has been performing his duties for over three decades within the accounting department of FTQ-Construction, the inner workings of which, it must be assumed, no longer hold any secrets for him.

Thus, according to the prosecution, the ideal opportunity arose for the defendant to obtain confirmation of the practice of using false handwritten receipts as supporting documents for the reimbursement of union activity expenses. [ 165 ] According to the prosecution, the defendant’s failure to cross-examine undermines the credibility of his argument. [ 166 ] The defendant denies having engaged in this strategy. He asserts that his defence did not require him to cross-examine Mr.

Brillon. [ 167 ] In view of the preceding conclusions, the answer to this argument, whatever it may be, will not change the result of the analysis. [ 168 ] In any event, the Court doubts that the relevant facts at issue represent a case to which the rule applies. [ 169 ] For one, the defendant did not really seek to attack Mr. Brillon’s credibility.

The cross-examination consisted of having the witness clarify the monthly financial reports, which were sent to him for purpose of Committee meetings, and the fact that there was never any objection or opposition to them of any kind. [ 170 ] Moreover, it can be inferred from the evidence as a whole that the witness was unaware of the defendant’s deceit, since he had no power to control the relevance or the limit of the expenses.

During his examination, he stated that he could not think of any ground, reason, or event to explain the disappearance of handwritten receipts as supporting documents as of September 2008. [ 171 ] The Court thus dismisses the second proposition, which has no tangible that could raise a reasonable doubt. [ 172 ] In the absence of tangible evidence, it is implausible and contrary to common sense that the Executive Committee of a serious labour organization would allow itself to become a kind of accomplice to the defendant by approving the payment of expenses for non- existent meals based on false documents, thus deliberately violating its fiduciary obligations towards the interests of the union members and the minimum standards of transparency. [ 173 ] If the interests of the workers justified the various union activity expenses and their reimbursement, why would the union have approved this concealment?

[ 174 ] There is no answer. [ 175 ] The Committee approved the accounts, but in so doing, it agreed to reimburse meal, hotel and automobile expenses, no matter how excessive, on the basis of documents that it believed were authentic. 3.4 The third proposition: the incriminating evidence contains a significant weakness that raises a reasonable doubt [ 176 ] The defendant sets out this argument as follows. [ 177 ] The incriminating evidence is based on the review of documents, the key pieces of which are credit card statements. [ 178 ] In fact, all the transactions identified by the prosecution for the purposes of the charges (exhibit P-18) involve the use of credit cards, at least in the cases that do not concern simply fictitious claims. [ 179 ] These credit cards were issued by the Laurentian Bank and the CIBC.

Over the years 2007-2008, the defendant held three credit cards (Visa) from these financial institutions (exhibit P-13). [ 180 ] In October and November 2008, there were also transactions (exhibit P-18) paid by a credit card issued by the Royal Bank (RBC).

These transactions, which incidentally took place after September 2008, reveal no irregularities. [ 181 ] In accordance with the defendant’s admission (exhibit P-13), a search conducted on February 26, 2009, did not reveal any other document relating to credit cards or bank accounts other than the following: - two CIBC Visa credit cards; - one Laurentian Bank Visa credit card; - transaction receipts from the Royal Bank relating to an account; - a Laurentian Bank account statement. [ 182 ] The defendant submits that such evidence is insufficient because it excludes the events for which he used his bank cards or made cash withdrawals. [ 183 ] Ms.

Boutin, the forensic accountant, did not consider this aspect except for the period from November 1, 2007, to July 30, 2008, in regard to the Laurentian Bank statements (exhibit P-19). There are only three transactions that relate to purchases paid by bank card.

The accounts, however, showed several withdrawals, some for $1,000. [ 184 ] The defendant files two documents (exhibits D-1 and D-2). [ 185 ] One, dated May 2, 2014, confirms that he has done business with the National Bank of Canada since 1987 and that he has had a chequing account there since October 1993 and a MasterCard credit card since 1999. [ 186 ] The other document, dated May 1, 2014, is a computer printout from the CIBC.

It refers to three items concerning the defendant: a chequing account open since April of 1994 and an Advantage card, and an Aventura Infinite card, which appear to have been held by the defendant since November of 2000 and May of 1994, respectively. [ 187 ] There is every reason to believe that the latter card is a credit card, as it bears the same number as that found on the statements seized by the police in February 2009 (exhibit P-13). [ 188 ] According to the defendant, reasonable doubt arises here due to the absence of sufficient evidence, or in other words, the lack of the persuasive evidence required by law to conclude beyond a reasonable doubt that the offence was committed. [ 189 ] The Court rejects this argument. [ 190 ] Quite on the contrary, the file contains strong incriminating evidence, which is moreover unexplained. [ 191 ] The defendant himself agrees that at the very least, the evidence establishes a presumption of forgery. [ 192 ] Since the first two grounds have been rejected, there is no rational explanation in the file that could raise a reasonable doubt as to the constituting elements of fraud and forgery and the underlying criminal intent. [ 193 ] The documents (exhibits D-1 and D-2) prove nothing other than the defendant’s status as a client of two banking institutions. [ 194 ] Neither connects the defendant to the banking operations at issue at the time relevant to the charges. [ 195 ] No actual evidence indicates or even suggests that the defendant was using a bank card in the performance of his duties.

The witnesses refer only to credit cards and cash payments. The evidence in support of the charges refers to transactions paid by credit card. [ 196 ] A doubt based on reason is not based on a hypothesis or remote possibility unsupported by concrete elements. 4 - CONCLUSION [ 197 ] The expert accounting reports (exhibit P-18) and forensic document analysis (exhibit P-12) as well as all of the evidence in support of the conclusions (exhibits P-1, P-2, P-4 to P-9, P-12.1) demonstrate beyond a reasonable doubt the forgery of two types of false

receipts seemingly issued by restaurants for meal expenses claimed: some do not correspond to any meal had on the date indicated at the restaurant that appears to have issued the receipt, while others claim reimbursements in excess of the actual expense of the meal. [ 198 ] This same documentary evidence leaves no reasonable doubt that the defendant is the author of the forgeries, which he signed and submitted in support of the [ translation ] “expense reports”, and that he obtained full reimbursement of the expenses claimed from his employer, FTQ-Construction. [ 199 ] The evidence is solid, researched and overwhelming, and the defendant does not even seek to challenge it, at least to the extent that he admitted that the receipts were forgeries during the pleadings. [ 200 ] His defence raises an entirely different angle.

He asserted that FTQ-Construction supported using false meal receipts to claim general expenses for a variety of union activities that could have appeared in the accounting documents under specific headings.

The Court rejects this defence. [ 201 ] Consequently, the prosecution has established beyond a reasonable doubt the constituting elements of fraud and forgery set out in paragraphs [23] and [28]. [ 202 ] It is impossible to know the defendant’s state of mind at the time he committed the forgeries and used them to deceive his employer, as he did not testify. [ 203 ] As a result, in regard to criminal intent, the Court must refer to common sense and the natural and reasonable inference flowing from the uncontradicted facts. [ 204 ] A person who is aware that he or she is committing a prohibited act with the specific objective of obtaining some type of advantage necessarily has criminal intent. [ 205 ] That is the case here.

FOR THESE REASONS, THE COURT: CONVICTS Mr. Jocelyn Dupuis of the offences of fraud and forgery. _________________________________ DENIS LAVERGNE, J.C.Q. Mtre Jacques Dagenais For the prosecutrix-respondent Mtre Jean-Daniel Debkoski For the defendant-petitioner Hearing dates: April 15, 16 and 17, 2014 May 16, 2014