R v Mann, 2024 ABCA 23

In the Court of Appeal of Alberta Citation: R v Mann , 2024 ABCA 23 Date: 20240123 Docket: 2301-0025A Registry: Calgary Between: His Majesty the King Respondent - and - Nicole Kathleen Mann Appellant _______________________________________________________ The Court: The Honourable Justice Peter Martin The Honourable Justice Dawn Pentelechuk The Honourable Justice Jane Fagnan _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Justice B.R. Fraser Convicted on the 1 st day of September, 2022 ( Docket: 181545591P1)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] Following trial, the appellant was convicted of three counts: theft over $5000, fraud over $5,000 and money laundering. The trial judge, applying the Kienapple principle, entered a conditional stay on the theft conviction. The appellant appeals. Background [ 2 ] The evidence heard at trial is fully described in the trial judge’s reasons found at R v Mann , 2022 ABPC 184 (Reasons for Judgment). For the purpose of this appeal, the following

summary will suffice. [ 3 ] From 2013–2017, the appellant worked as the operations manager of CMN Calgary Inc. (Colliers), a commercial real estate firm. The partners of Colliers had set up a foundation, Colliers Cares Foundation (CCF), to benefit charitable organizations. As part of her duties at Colliers, the appellant became the treasurer of CCF but did not have signing authority; that rested with two Colliers officials, Mr. Law and Mr. Binfet. The appellant received CCF’s monthly bank statements and kept all documentation relating to CCF in her office, except the cheque book, which Mr.

Law kept in an unlocked office drawer. [ 4 ] The CCF account was a private account funded by Colliers’ partners and the proceeds of an annual golf tournament. The funds were donated to Calgary charities whose mandate it was to help needy children. The account was not taxable and did not require audited statements. Instead, the appellant prepared spreadsheets purporting to indicate CCF’s financial transactions, which she shared with CCF’s volunteer board. This information was apparently relied upon by the board. [ 5 ] On December 14, 2017, the appellant’s employment with Colliers was terminated.

Immediately upon being advised of her termination, the appellant was asked to surrender her office keys and parking pass and was not allowed to return to her office. Two staff members of Colliers then went to the appellant’s office to pack her belongings. They found more than $4,000 cash in the appellant’s desk drawer, which was remarkable as Colliers does not deal in cash. Also found in the appellant’s office were cheques written to the appellant on the CCF account, blank cheques ostensibly signed by Mr. Law, and paper with what was described as “practice” signatures of Mr. Law.

A subsequent audit revealed that 89 cheques made out to the appellant with a total value of more than $450,000 had been cashed by her between 2013–2017. The audit also discovered two cheques drawn on Colliers’ trust account made payable to CCF totalling almost $184,000. It appears these cheques were intended to refresh the depleted CCF account. [ 6 ] The 89 cheques made out to the appellant appeared to have been signed by Mr. Law, but he denied having signed any of them. The trust cheques, which required the signature of two Colliers officers, appeared to have been signed by both Mr. Law and Mr. Binfet.

However, both men denied having signed either cheque, noting that they could not, and would not, have withdrawn money from Colliers’ trust account to benefit CCF, as the funds in the trust account did not belong to Colliers. [ 7 ] At trial, the appellant testified that she had been sexually assaulted on four occasions at Colliers’ social events. The first two assaults, in February of 2013, were alleged to have been unwanted kisses by two intoxicated colleagues at a company gathering in Montana. She testified that she shared that information with Mr. Law and Mr. Binfet. Mr.

Law said he would take care of it “for the boys” and asked her how much money would be needed to buy her silence. [ 8 ] The appellant testified that fearing a trap, she initially asked for only $300 and was subsequently given a cheque in that amount. Later, when her concerns about a possible trap appeared unwarranted, she asked for more money. As she told it, each time she met with Mr.

Law, he would ask how much money she wanted, she would suggest a number, sometimes in the tens of thousands of dollars, and the next day he would give her a cheque in that amount. [ 9 ] The appellant claimed that the other two sexual assaults also occurred at Colliers’ functions and that on one occasion in November 2013, she was actually raped by a colleague and later sexually touched by another. She testified that she again reported these assaults to Mr.

Law and he continued to write her cheques on the CCF account in any amount she requested to ensure her silence on those matters as well. [ 10 ] The appellant offered another reason Mr. Law gave her this money; to ensure her remuneration exceeded that paid to her predecessor, and that was why a number of the cheques mirrored her salary and were described as “Pay” or “Bonus.” [ 11 ] Mr. Law testified that he often met with the appellant as a friend and mentor but denied ever being told by her that she had been sexually assaulted. He further denied signing any of the 89 cheques at issue.

He acknowledged that the signatures on those cheques resembled his but maintained they were not his.

[12] Mr. Law emphatically denied trial counsel’s suggestion that he had planted the incriminating articles found in the appellant’soffice following her termination – the $4,000 and the paper with his “practice signatures”. He also denied counsel’s suggestion that heintentionally modified his signature on the impugned cheques to give himself plausible deniability if the scheme was ever discovered.To explain, counsel suggested that Mr. Law “forged” his own signature, making it look different from his usual signature so that hecould deny it was his, if need be. Grounds of Appeal [13] The appellant raises two grounds of appeal: (

i) that the trial judge misapprehended some evidence resulting in an unreasonable verdict; and (ii) that the trial judge reversed the burden of proof, requiring the appellant to establish and corroborate her innocence. Analysis

(1) Whether the trial judge misapprehended some evidence [14] Under this heading the appellant asserts the trial judge erred: (

i) in failing to understand that Mr.

Law had an interest in protecting Colliers’ corporate reputation and that failure resulted in thetrial judge finding the appellant’s version of events less likely; (ii) in considering that although many of the cheques were noted to be “Pay” or “Bonus”, the appellant did not report this money astaxable income; (iii) in failing to scrutinize the management of the CCF account to determine how almost a half million dollars could be taken withoutdetection, particularly as the appellant did not have access to the account cheque book; and (iv) in failing to consider the source of funds in the CCF account and by disregarding evidence that CCF was not a charity. [15] Then, with regard to assessing the appellant’s allegations of Mr.

Law’s participation, the appellant submits the trial judgeerred in failing to fully consider her claim that Mr. Law intentionally “forged” his signature by modifying it somewhat to resemble hisactual signature in order to provide plausible deniability should the need arise. Similarly, the appellant argues that the trial judge erredby summarily dismissing the possibility that Mr.

Law “planted” the $4,000 cash and the sheet with his “practice signatures” in theappellant’s office to deflect suspicion from himself by framing her. [16] The appellant submits that these errors together led to an unreasonable verdict. [17] It may be helpful to begin by considering the nature of the proposition advanced by the appellant at trial and on appeal. Theappellant claims that Mr.

Law offered to pay her any amount she wanted in exchange for her silence after she disclosed to him that twoemployees had kissed her at a corporate event, and in the months that followed he misappropriated tens of thousands of dollars from afund established to help needy children to protect “the boys” and Colliers’ reputation.

One may wonder how the misconduct alleged, twounwelcomed kisses, could have so damaged Colliers’ reputation. [18] Then, approximately nine months later, in response to the appellant’s allegation that she had actually been raped by acolleague at another corporate function, rather than have the offender reported to the police or raise the matter with responsible corporateofficers to at least have his employment terminated, Mr.

Law simply affirmed that he would continue to pay the appellant any amountshe wished for years to come in exchange for her continued silence on that matter as well. [19] Moreover, the appellant claimed that throughout all this time, Mr. Law carefully signed the cheques with a modified versionof his actual signature to be able to later claim that the signatures were not his. And, although the purpose of the scheme was primarily toprotect Colliers’ corporate reputation, rather than admit his involvement, Mr.

Law took active steps to frame the appellant in a seriouscrime to deflect suspicion from himself, even though the appellant did not suggest that the payment of this money was in any wayimproper. [20] The approach taken by the trial judge did not require a consideration of the factors the appellant proposes, such as the natureof the CCF account and how almost a half million dollars could have been removed from the account without detection. [21] The trial judge focussed instead on what was acknowledged to be the critical issue: credibility and reliability.

He assessed thetestimony of the Crown witnesses whose evidence indicated that the appellant wrote the cheques herself, forging Mr. Law’s signature inthe process. He then considered the credibility and reliability of the appellant’s evidence to the effect that Mr.

Law signed the cheques toensure her silence and then tried to frame her upon learning of her termination at Colliers. [22] In addressing the evidence, the trial judge referred, at length, to the law and to a number of cases clarifying R v W(D), [1991]1 SCR 742, (SCC), including R v Dinardo, 2008 SCC 24, R v Ryon, 2019 ABCA 36, R v Boucher, 2005 SCC 72, R vVuradin, 2013 SCC 38 and R v REM, 2008 SCC 51.

From that review, the trial judge concluded that a trier of fact may reject anaccused’s account entirely because they accept the Crown’s counter account beyond a reasonable doubt, and that a reasoned andconsidered acceptance of the Crown’s evidence was as much an explanation for rejecting the contrary evidence of the accused as areproblems inherent in the accused’s own testimony: R v TS, 2012 ONCA 289 at para 79. [23] Against that backdrop the trial judge carefully considered the credibility of the witnesses and decided that the evidence of the

Crown witnesses was truthful and reliable. He found Mr. Law to be credible with no reason or motive to lie. He concluded at para 50 of the Reasons for Judgment: I find it difficult to believe Mr. Law would do this for any of the reasons the accused’s version says he did. ... He [Mr. Law] said there was no reason to pay her monies from the fund for any reason. He would never have authorized payments to her and if he knew about her paying herself he would have fired her. He never signed cheques in blank. She never made any complaints of sexual harassment to him.

He was shown all the cheques payable to the accused and said he never signed any of them ... [ 24 ] The trial judge then considered the evidence of the appellant, noting at para 56 of the Reasons for Judgment that: Her version of events that Mr. Law stole that money from the Foundation to give to the accused exclusively for her benefit is simply not plausible given the credible evidence led by the Crown. Not only is it not plausible, it is implausible. I do not believe her version nor does it raise a reasonable doubt that she wrote the cheques to herself from the Foundation account for her sole benefit.

It is inconceivable Mr. Law would write cheque after cheque whenever requested by the accused for any amount requested for four years until she was terminated. Why stop when she is terminated[?]. She would still need to be kept quiet if that was the purpose. It is far more likely the cheques stopped after termination because she no longer had access to the cheque book. [ 25 ] These findings, on this evidence, were obviously available for the trial judge to make.

They are not impeached by his failure to consider or credit the various allegations of the appellant whose evidence he rejected as implausible and unreliable, or by his disregard of the peripheral points the appellant now suggests.

(2) Whether the trial judge reversed the burden of proof [ 26 ] Next it is submitted that the trial judge erred in rejecting the appellant’s evidence after having observed that she appeared “very credible ... articulate and sincere” and “never wavered from her versions of events”: Reasons for Judgment at para 54. Notwithstanding those observations, the trial judge found the appellant’s testimony to be unreliable and implausible. [ 27 ] That conclusion was well supported by the evidence. To illustrate, the appellant testified she initially responded to Mr.

Law’s proposal that he would pay her any amount she wished for her silence by asking for only $300, as she feared a trap. She said she then received a $300 cheque, which she identified as the first cheque, on June 10, 2013. Her evidence on this point was important as it suggested that the scheme was Mr. Law’s idea, not hers, that his proposal left her confused and apprehensive, and as proof of that she initially asked for only $300. Then, only after her suspicions were allayed and upon realizing that Mr. Law was serious, did she go along with his proposal and ask for more money.

But her explanation crumbled when, in cross-examination, it was pointed out that the first cheque was actually for $5,600, issued to her a month earlier. [ 28 ] The next excerpt of note occurred when the trial judge questioned the appellant, and she offered that one of the cheques was entirely legitimate as it was reimbursement for her having paid a bar tab following a corporate event: Q So why -- you would get a receipt from the bar, do you not? A Yes, Sir. Q Why would you not just ask the reimbursement for the amount on the receipt? If that was your money, you were paying, you want to be reimbursed.

Why would you ask for an amount equal to your pay cheque? A That's a good question, Your Honour. Q Well, I need an answer. A Understandable, Your Honour. I -- I think at the time I just was asking for the same amount as my pay cheque because I knew I would have access to the funds without there being a hold on the account, Your Honour. [ 29 ] These are but two illustrations of the unreliability of the appellant’s evidence. [ 30 ] The ability to deceive is an essential trait of those who engage in major frauds. The plausibility of their evidence will often be the decisive factor.

In this case, the trial judge found that although the appellant’s evidence was well told, it was unreliable and completely implausible. There is nothing unreasonable or contradictory about that conclusion. [ 31 ] The appellant also submits the trial judge erred in observing that the appellant’s claim of having been sexually assaulted by four men at corporate gatherings lacked corroboration and was entirely unsupported by any other evidence. That issue was raised by counsel in their closing submissions. The trial judge did not suggest that corroboration was required.

Rather, in response he merely observed that while he could have drawn an adverse inference from the appellant’s failure to call anyone to corroborate her testimony (for example, a female colleague alleged by the appellant to have experienced some of the same misconduct), he found it unnecessary to do so and did not draw that inference: Reasons for Judgment at para 56.

Accordingly, we disagree with the appellant’s assertion that the trial judge reversed the onus of proof or erred by referring to the lack of corroborating evidence. [ 32 ] Finally, under this heading, the appellant also argues that she had a colour of right to the approximately $450,000 she received. Having completely rejected the appellant’s version that Mr. Law wrote the cheques to buy her silence and top up her salary, this argument lacks any foundation.

Conclusion [ 33 ] The appeal is dismissed. The appellant is ordered to surrender to the Calgary Police Service within 48 hours of this judgment being filed, failing which a warrant will issue for her arrest. Appeal heard on the 5 th day of October, 2023 Memorandum filed at Calgary, Alberta this 23rd day of January, 2024 Martin J.A. Pentelechuk J.A. Authorized to sign for: Fagnan J.A. Appearances: I. Kuklicz for the Respondent D. Roper for the Appellant