2014 QCCA 2002, 2014 QCCA 2002

Unofficial English Translation N'Drin Beugré c. R. 2014 QCCA 2002 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004892-111 and 500-10-005025-117 (500-01-005334-088 SEQ. ACC. 003) DATE: February 5, 2015 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. CLAUDE C. GAGNON, J.A. SERGE N’DRIN BEUGRÉ APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix CORRECTED JUDGMENT [ 1 ] In the judgment filed on November 3, 2014, an error occurred in paragraph [6] of the reasons for that judgment, which stated: [ translation ] [6] VARIES the sentences to be served concurrently to 72 months on the counts of fraud perpetrated after September 15, 2004 (counts 2 to 66), and 54 months on the counts of document forgery (counts 168 to 172) and fraud perpetrated prior to September 15, 2004 (counts 67 to 78, 80 to 102 and 104 to 112), of which a period of 14 months will be credited for pre-sentencing custody, for a residual global sentence of 58 months from the time of his incarceration. [ 2 ] This paragraph should have read: [6] VARIES the sentences to be served concurrently to 72 months on the counts of fraud perpetrated after September 15, 2004 (counts 67 to 78, 80 to 102, and 104 to 112), and 54 months on the counts of document forgery (counts 168 to 172) and fraud perpetrated prior to September 15, 2004 (counts 2 to 66), of which 14 months will be credited for pre-sentencing custody, for a residual global sentence of 58 months from the time of his incarceration.

MARIE ST-PIERRE, J.A. CLAUDE C. GAGNON, J.A. Mtre Pierre Panaccio Pierre Panaccio, lawyer For the appellant Mtre Kathleen Caron and Mtre Juan Manzano Director of Criminal and Penal Prosecutions For the respondent Date of hearing: April 9, 2014 N'Drin Beugré c. R. 2014 QCCA 2002 COURT OF APPEAL CANADA

PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004892-111 and 500-10-005025-117 (500-01-005334-088 SEQ. ACC. 003) DATE: November 3, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A MARIE ST-PIERRE, J.A. CLAUDE C. GAGNON, J.A. SERGE N’DRIN BEUGRÉ APPELLANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [1] The appellant appeals from 114 guilty verdicts returned on March 7, 2011, following a trial before jury and from sentences imposed by the Honourable Mr.

Justice Marc David of the Superior Court, District of Montreal. [2] For the reasons of Gagnon, J.A., with which Dalphond and St-Pierre, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal from the convictions; [ 4 ] GRANTS the motions for leave to appeal from the sentences; [ 5 ] ALLOWS the appeal from the sentences; [ 6 ] VARIES the sentences to be served concurrently to 72 months on the counts of fraud perpetrated after September 15, 2004 (counts 2 to 66) and 54 months on the counts of document forgery (counts 168 to 172) and fraud perpetrated prior to September 15, 2004 (counts 67 to 78, 80 to 102 and 104 to 112), of which a period of 14 months will be credited for pre-sentencing custody, for a residual global sentence of 58 months from the time of his incarceration. [ 7 ] ORDERS the appellant to surrender himself to prison authorities by 4:30 p.m. on November 7, 2014, at the latest.

PIERRE J. DALPHOND, J.A MARIE ST-PIERRE, J.A. CLAUDE C. GAGNON, J.A. Mtre Pierre Panaccio Pierre Panaccio, lawyer For the appellant Mtre Kathleen Caron and Mtre Juan Manzano Director of Criminal and Penal Prosecutions For the respondent Date of hearing: April 9, 2014 REASONS OF GAGNON, J.A.

[ 8 ] The appellant appeals from the guilty verdicts returned by a jury on March 7, 2011, convicting him on 109 counts of fraud (s. 380(1)(

a) Cr. C. ) and 5 counts of document forgery (s. 367(

a) Cr. C. ) and from the concurrent sentences imposed by the Superior Court judge, the Honourable Marc David, of 96 months on the counts of fraud committed after September 15, 2004, and 72 months on the counts of fraud committed prior to that date and the counts of document forgery. [ 9 ] All the offences with which the appellant was charged were committed against individuals who had invested in mutual funds managed by Norbourg.

The appellant was known as the right-hand man of Vincent Lacroix, the architect and main beneficiary of a fraud nearing $95,000,000. [ 10 ] For the following reasons, I am of the view that the appeal from the convictions should be dismissed, the motion for leave to appeal from the sentences should be allowed, and the sentences imposed should be reduced. 1. BACKGROUND [ 11 ] In 2001, the Commission des valeurs mobilières du Québec [CVMQ] – replaced in 2004 by the Autorité des marchés financiers [AMF] – authorized Norbourg Services Financiers inc. [NSF] to sell mutual funds. [ 12 ] NSF was created under the

Canada Business Corporations Act in 1998; its shareholder and director was Vincent Lacroix. The corporation changed its name on April 15, 2003, to become Norbourg Gestion d'actifs inc. [NGA]. [ 13 ] The appellant, who had befriended Vincent Lacroix in university, started working for NSF in early 2002. His employment contract, however, is dated June 30, 2002.

Around that time, he also became vice-president and deputy general manager of NSF and, later, NGA. [ 14 ] The 2003–2004 annual reports, under the heading "Management committee", describe the appellant as having a master's degree in finance and a bachelor’s degree in business administration and that he was a chartered financial analyst (CFA). [ 15 ] All the mutual funds arising from investors approached by NSF or NGA were entrusted to Northern Trust [NT], the security custodian. Between 2001 and 2005, only Vincent Lacroix and David Simoneau were authorized to make withdrawals from NT.

Later, Jean Cholette and David Cloutier were also authorized to repatriate assets held by NT. [ 16 ] Already in October of 2002, the value of the investor assets held with NT was not what it should have been because of Lacroix's misappropriations. Indeed, unbeknownst to the fund owners, Simoneau and Lacroix had sent NT fund withdrawal orders, which the security custodian executed.

The returned funds were not recorded in the NSF computerized management system (Octan), thereby giving the false impression that they were still entirely in the hands of the security custodian. [ 17 ] These amounts were then moved to bank accounts held by corporate entities. Lacroix and the appellant were the officers authorized to trade for these entities. The funds were then used for Lacroix's personal needs. [ 18 ] On October 15, 2002, NSF received a notice from the CVMQ that created a considerable amount of uproar as it announced an imminent inspection and required the production of a list of documents.

The corporation then sought a talented computer specialist to implement the cover-up intended to deceive the regulatory body and conceal the withdrawals and misappropriation of mutual funds. [ 19 ] The appellant, who was already acquainted with Félicien Souka, introduced him to Lacroix as the person they needed to help them accomplish the computer portion of this delicate task, which included creating a template to create false periodic reports from NT showing that the investors' money had remained in the security custodian's coffers. [ 20 ] Time was of the essence; Lacroix hired Souka and the [ translation ] "forging" operation immediately got under way.

They worked at night and on weekends, keeping the other employees of the corporation in the dark. The appellant worked alongside Souka. Their contribution to NT’s forged periodic reports was particularly significant. [ 21 ] From all accounts, the CVMQ was completely taken in and appeared satisfied with the management of the NSF mutual funds.

As soon as the inspection was done, Lacroix and his accomplices resumed their activities as if nothing had happened, except that forgery was now part of the corporation's everyday activities to cover up the plundering of the investors' funds as it took place. [ 22 ] Each of the 109 counts of fraud of which the appellant was convicted corresponds to a withdrawal of funds obtained from NT under false pretences and without the approval or authorization of investors. [ 23 ] These abuses were all disguised to give them an air of legitimacy when, in truth, considerable sums of money were momentarily held in an NSF bank account, separate from the corporation's accounting and excluded from any audit.

The money was then diverted into the coffers of Norbourg International inc. [NI], Norbourg Gestion Financières inc. [NGF], or Société immobilière Norbourg [SIN], which were all Lacroix-controlled corporate entities and directed by the appellant. [ 24 ] With the appellant's aid or approval, Lacroix took millions of dollars to meet his extravagant personal needs and acquire assets that enhanced his public image. [ 25 ] Thus, between March and June of 2005, the appellant signed four cheques made out to Lacroix and drawn on the NI account, totalling $1.5 million.

He also approved the purchase – with the investors' money – of the Grand Café restaurant (for $6.55 million) and Investissement BBA inc. (for $6 million).

[ 26 ] That does not mean that the appellant was left out in the cold. His employment contract provided for an annual salary of $140,000 and his employer also made sure that he had a luxury car at his disposal. Ivoire Finance inc., a corporation of which he was the directing mind, received a further $400,000 from the misappropriated funds between November of 2004 and July of 2005. [ 27 ] On September 10, 2004, the AMF informed NGA of its intention to perform a second inspection on September 21.

On October 28, 2004, the AMF began investigating the activities of NGA, the investment advisor. [ 28 ] That same year, Lacroix approached PricewaterhouseCoopers to sign a voluntary statement with the tax authorities in which he intended to use fictitious investment income to justify financing for the activities of NSF and NGA (in the amount of $28,800,000) and an increase in his personal assets (amounting to nearly $20,000,000). [ 29 ] The forgers were once more put to work creating false statements of account from a Swiss bank, UBS Wealth Management, and false reports from NT for investment accounts opened by Lacroix. [ 30 ] On April 27, 2005, Lacroix asked his cousin and employee, David Simoneau, to open two investment accounts in his name with NT (VLX and VLA) in which he would not trade, but which enabled the forgeries made by Souka and the appellant to give the appearance of sustained and, more importantly, very profitable financial activity. [ 31 ] These document forgeries resulted in five guilty verdicts (counts 168 to 172) against the appellant. [ 32 ] In October of 2004, NGA hired Jean Hébert to ensure compliance with the corporation's investment policies.

Hébert was then promoted to vice-president of finance, at which point he began to question the provenance of large sums of money passing through the corporation's bank accounts. He discussed it with a colleague, Éric Asselin, and decided to look into the question. It was then that he discovered that Lacroix was taking money directly from the investors' investment accounts, embezzling them for his personal gain. [ 33 ] When he was just about to report the situation to the police, Éric Asselin informed him that he had already spoken to the AMF and the Royal Canadian Mounted Police.

Hébert nevertheless met with the investigators in early August of 2005. [ 34 ] The search at the head office of the Norbourg group corporations on August 25, 2005, put an end to the fraudulent activities of Lacroix and his associates. [ 35 ] The subsequent police investigation revealed that investors had lost about $95,000,000 that had been entrusted to the security custodian, unlawfully withdrawn by Lacroix and his accomplices, and squandered. [ 36 ] It appears that, of this amount, $28.8 million passed through a hidden NSF and NGA account and $37 million passed through the NI account before ultimately ending up in the hands of the authors of this huge scam. 2.

PROCEEDINGS [ 37 ] With four other accused (Jean Renaud, Félicien Souka, Jean Cholette, and Rémi Deschambault), the appellant was tried before jury in a trial that lasted 103 days over about 7 months, with 68 witnesses heard and 2798 exhibits filed.

It was his second trial in what is commonly referred to as the [ translation ] "Norbourg scandal", as the first had ended with a hung jury on January 26, 2010. [ 38 ] After deliberating for 14 days, the jurors acquitted Jean Renaud and Félicien Souka and convicted the appellant on 109 counts and Jean Cholette on 126 counts, but they could not reach unanimous verdicts with regard to Rémi Deschambault. [ 39 ] Sentencing took place on September 30, 2011.

The Superior Court judge imposed a sentence of 58 months' imprisonment on the appellant for the 65 counts of fraud committed prior to September 15, 2004 (the date on which the maximum sentence for the offence of fraud went from 10 years to 14 years) and the 5 counts of document forgery, as well as a sentence of 82 months' imprisonment for the 44 counts of fraud committed after September 15, 2004.

He also credited the equivalent of a 14-month period of confinement due to pre- sentence custody. [ 40 ] On April 3, 2011, the appellant appealed from the convictions against him. [ 41 ] That same day, his motion for interim release was granted and the appellant was released on a recognizance that included certain conditions. [ 42 ] On October 27, 2011, a judge of this Court deferred the motion for leave to appeal from the sentence to the panel that would hear the appeal from the convictions. 3.

ISSUES [ 43 ] In his factum, the appellant states his grounds of appeal in the form of the seven following questions: 1) The trial judge erred in the

interpretation of the theory of wilful blindness he gave the members of the jury. In particular, this

interpretation completely obscured the notion of actus reus as it applies specifically to s. 21(1)(

b) of the Cr. C. ; 2) The trial judge erred in law by dismissing the appellant's motion for a directed verdict, particularly with respect to counts 2 to 112 of the indictment; 3) In his warning regarding the witness informer David Simoneau, the trial judge cautioned the jurors about using such testimony

without providing alternatives, such as the possibility of believing the witness in part, among other things; 4) During his charge on the circumstantial evidence, the trial judge did not say that the appellant's guilt must be the only logical conclusion that may be drawn from the circumstances; 5) The trial judge erred in law by allowing documents that did not arise from the evidence to be filed as exhibits at the very outset of the trial; 6) The trial judge's charge did not take into account the chronological details of the fraud charges; 7) The verdict is unreasonable. [ 44 ] After having thus stated his seven grounds of appeal, his arguments group these grounds under two headings entitled "jury" and "evidence". [ 45 ] In these circumstances, it is useful to restate the questions raised on appeal as follows: 1) Was the appellant deprived of his right to a fair trial? 2) Were the judge's instructions to the jury so flawed as to justify ordering a new trial? 3) Did the judge err in dismissing the appellant's motion for a directed verdict on the fraud charges? 4) Were the verdicts unreasonable? 5) Were the sentences reasonable and fit? 4.

WAS THE APPELLANT DEPRIVED OF HIS RIGHT TO A FAIR TRIAL? 4.1 Appellant's submissions [ 46 ] The appellant alleges that, by allowing the jury access to the exhibits before they were validly admitted into evidence, the judge increased the risk that jurors might draw premature and harmful conclusions about the appellant's case. [ 47 ] The intended purpose of authorizing this access allegedly facilitated the prosecution's task by increasing the risk of errors and confusion at the expense of the appellant's rights. [ 48 ] The jurors’ notes and requests do in fact show that they scrutinized the evidence before it was validly admitted. [ 49 ] The judge erroneously believed that proper instructions in this respect would suffice to ensure the fairness of the trial.

Some jurors, however, failed to comply with the judge's instructions.

Their recalcitrant attitude demonstrates that justice does not appear to have been served, particularly when one of the jurors spoke with the wife of one of the prosecutors outside the courtroom and another allegedly encouraged a journalist to continue writing articles that were very useful to help him understand the evidence. 4.2 Premature access to the exhibits [ 50 ] In June of 2010, to facilitate the jurors' work and ensure an orderly and efficient trial, the parties agreed to file exhibits P-181 [1] and P-182, [2] subject to any objections at a later date against their content being filed into the record and instructions prohibiting the jurors from taking notice of the exhibits prior to their being filed. [ 51 ] When the trial got underway on September 20, 2010, the judge gave the jurors exhibits P-181 and P-182 with instructions to consult only the documents that were actually admitted into evidence: [ translation ] To this end, I have asked that the electronic documentary evidence be placed at your disposal from the outset of the trial.

You will therefore receive two

(2) CDs containing electronic documentary evidence. You may consult the documentary evidence in your deliberation room as the trial progresses. However, the documents on the CD will be filed into the record one by one, as the trial progresses. The clerk will keep a record of the documents filed into evidence each day. Before a document is filed into evidence in the courtroom, it is not evidence. I repeat: Before a document is filed into evidence in the courtroom, it is not evidence . Therefore, you may consult only those documents that have been assigned a number in the court record.

Unless a document has been assigned a number, it has not been entered into evidence and you may not consult it . This instruction is important because only counsel may decide the evidence that you must consider in a trial. Counsel have control over the evidence, and it is therefore important that you have access only to that evidence that has been assigned a number by the Court . That being said, a document in the CD may be declared inadmissible by a ruling I make.

In that case, you will not be entitled to consult or consider that document on your CD and I will be compelled to ask you not to take it into account... to not take such a document into consideration. This is one of the reasons why you should not consult the documents on your CD before they are officially filed into evidence in the courtroom and a specific number is assigned .

[Emphasis added.] [ 52 ] This instruction took care of any concerns raised during the pre-hearing conference by counsel for the appellant and could not be any clearer about the manner in which exhibits P-181 and P-182 should be used. [ 53 ] The appellant submits that the jury did not comply with this instruction and that it [ translation ] "blithely sailed" through the evidence, as demonstrated by notes J-2 and J-3 that the jurors sent the judge. [ 54 ] Note J-2 is dated October 25, 2010, and informs the judge that: [ translation ] We cannot open the .doc and .xls files, the Word and Excel software suite has not been installed on our computers. [ 55 ] The software programs named were not required to consult exhibits P-181 and P-182.

They were necessary to view the documents included in two other exhibits that were already filed into evidence but that do not appear in P-181 and P-182. [ 56 ] The jurors, therefore, did not submit this request to the judge to [ translation ] "blithely sail" through P-181 and P-182, but to have access to exhibits already filed into evidence.

In the minutes leading up to the transmission of note J-2, the jurors had heard the testimony of Veda Nancoo, who had commented upon the documents included in exhibit INF-3, which required Word to be consulted. [ 57 ] Note J-3, which the jurors sent the judge on October 26, 2010, stated: [ translation ] Pages 434 and 435 of exhibit P-182 (black binder containing the list of exhibits) are missing. [ 58 ] The missing pages (434 and 435 of P-182) listed documents relating to fraud count No. 51 and, more specifically, exhibits P- 51.5 and P-51.6, which had been discussed on October 14 in the testimony of Ginette Rouleau. [ 59 ] It was therefore completely legitimate and consistent with the judge's instructions for the jurors to consult P-182 and notice that the relevant pages were missing. [ 60 ] The appellant's argument that the jurors ignored the judge's instructions about consulting exhibits P-181 and P-182 is thus without merit. 4.3 The jury's lack of discipline and its vulnerability to external influences [ 61 ] As previously pointed out, the appellant's argument is supported by two incidents that occurred beyond the confines of the court during which: 1.

Juror #11 met Ms. Labrecque, whom he regularly saw in the courtroom, walking down the sidewalk. He asked her if she was a journalist, to which she answered that she was the prosecutor's spouse. After exchanging a few words about the experience of being a juror, the prosecutor's spouse told him that she hoped that this trial would not end like the first; 2.

While juror #2 was with juror #7, he crossed paths with journalist Yvon Côté in the courthouse hallway and said to him: [ translation ] "Keep writing your blog because, without you, I wouldn't understand any of it." When asked about this, juror #2 said that it was a bad joke because what he had read in the blog did not correspond to the evidence heard in the courtroom. [ 62 ] As soon as he was informed, the judge immediately began to investigate these incidents and interrogated the persons involved under oath.

It appeared that (1) the comment made by the prosecutor's wife was not shared with the other jurors, (2) despite the events, juror #11 retained his ability to judge the appellant impartially, (3) the comments of juror #2 were a bad joke, and (4) juror #2 still had the ability to decide the fate of the appellant impartially. [ 63 ] Applying the test of whether there is a "reasonable possibility that the accused’s right to a fair trial was precluded", the judge found that these two jurors could continue to act, but excluded the prosecutor's wife from the courthouse until the end of the trial. [ 64 ] In R. v.

Pan , Arbour J. recalls that: ... Likewise, there are limits to the use of s. 644 of the Code as a mechanism for discharging jurors in the course of the trial.

Section 644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror . It is not designed to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of the trial, nor does it contemplate the discharge of jurors over minor concerns. Trial judges can be left to decide how best to instruct the jury on these issues . ...

Jurors should understand that the trial judge is there to assist them with any serious difficulty that may arise in the course of their deliberations that they are unable to resolve. [3] [Citations omitted.][Emphasis added.] [ 65 ] In Giroux , the Court of Appeal for Ontario applied the criteria for intervention established in R v. Hanna [4] and wrote: Each case must be tackled in the context of its own factual dynamics, and a trial judge should be afforded a high degree of flexibility in grappling with what is at best a delicate and difficult situation . This will better serve the course of justice.

As noted by Wood J.A., in Hanna at 313, “ the discretion exercised by a trial judge under s. 644(1) ought to be respected unless the record discloses a reasonable possibility that the accused’s right to a fair trial was precluded ”. [5]

[Citations omitted.][Emphasis added.] [ 66 ] In R v. Jolivet , Baudouin J.A. defined the criteria to apply when exercising the power under section 644(1) Cr. C. : [ translation ] A judge’s discretionary power to discharge a juror under

section 644 Cr. C. or to put an end to the trial must therefore be exercised judicially in light of the existence of a real danger . [6] [Citations omitted.][Emphasis added.] [ 67 ] In short, the judge conducted the appropriate investigation, applied a recognized analytical test, and exercised his discretion judicially. His conclusion that the appellant's right to a fair trial was not compromised deserves a great deal of deference. [ 68 ] This ground of appeal must therefore fail. 5.

DO THE JUDGE'S INSTRUCTIONS TO THE JURY CONTAIN ERRORS JUSTIFYING A NEW TRIAL? 5.1 Appellant's submissions [ 69 ] The appellant maintains that the judge's instructions to the jurors were incomplete and insufficient in five respects: (1) he should have informed the jury specifically that exhibit P-181 was not evidence, (2) in the presence of what amounted to indirect evidence, the judge should have instructed the jurors on the necessity of finding that guilt was the only logical conclusion arising from the evidence, (3) he should not have characterized the testimony of David Simoneau, who exculpated the appellant, as [ translation ] "suspicious", (4) the judge should have specified that a guilty verdict required that there be evidence of actus reus beyond a reasonable doubt on each count and culpable intent on the dates given in the indictments, and (5) the judge should not have instructed the jurors on the theory of wilful blindness. 5.2 Exhibit P-181 [ 70 ] In addition to the specific instruction given at the outset of the trial when exhibit P-181 was handed over to the jurors, which I discussed earlier, the judge had this to say during his final charge: [ translation ] In accordance with my instructions during the trial, I remind you that the work tools that were prepared for you are not evidence, irrespective of whether the work tool in question comes from counsel, the accused, or witnesses.

You may refer to them according to need and at your discretion. You are not bound by the contents of these tools. They may be useful or entirely useless. You are the ones to decide. [ 71 ] In my opinion, taken as a whole, these are clear instructions with respect to the nature of exhibit P-181 and the use that jurors could make of it. [ 72 ] I find that the criticism of the judge in this respect is without merit. 5.3 The circumstantial evidence [ 73 ] The appellant also argues that the instruction regarding indirect evidence was inadequate despite his request that the judge elaborate or even correct it.

The judge allegedly did not follow through on the motion. [ 74 ] This ground targets the following excerpt from the charge, which the appellant claims erroneously limited the factual basis of the inference that could be drawn from the evidence: [ translation ] As triers of fact, may presume a fact based on clues drawn from proved facts, the probative value of which you must assess.

For you as triers of fact, what you accept becomes the only logical conclusion possible, and that is the case with this file. [ 75 ] In Hay , the Supreme Court reiterates the principle applicable when an appellate court examines a jury charge: [47] When reviewing a jury charge, “[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole”: R. v. Jaw , 2009 SCC 42 , [2009] 3 S.C.R. 26, at para. 32 .

Where an impugned reference in a jury charge in isolation could be understood to be an incorrect statement of the law, an appeal court will not interfere if it is evident that, considering the charge as a whole, the jury would have been properly instructed: ibid ., at paras. 3 and 24. [48] Furthermore, although appeal courts will interfere when a jury has not been adequately instructed, a trial judge must be afforded a certain degree of flexibility in instructing the jury; see R. v. Avetysan , 2000 SCC 56 , [2000] 2 S.C.R. 745, at para. 9 .

A trial judge is not required to use “any particular form of words” in instructing the jury regarding the frailties of eyewitness evidence and, rather, must be afforded considerable latitude in deciding how best to apprise the jurors about those frailties: Turnbull , at p. 552; R. v. Candir , 2009 ONCA 915 257 O.A.C. 119, at para. 110 . [7]

[ 76 ] In Delisle , [8] the Court reiterated the necessity of taking a functional approach to the jury charge: [ translation ] [35] It is common ground that the assessment of instructions requires a functional approach rather than a literal one. In other words, the appellate court must take "a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given".

An appellate court must approach the charge as a whole, considering the context of the trial, to determine not whether the instructions were perfect but whether they were proper in that they enabled the jury to judge the facts according to the applicable principles of law. The Supreme Court summarizes these principles in R. v. Daley : [30] When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following.

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. [31] In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection.

The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para. 2. It is the overall effect of the charge that matters. [ 77 ] Then again, since Griffin [9] and Mayuran , [10] it is established that a special instruction is not required when the evidence is basically circumstantial, as it is in this case.

It is enough that the jurors be told the way in which they may use it [ translation ] "to establish guilt beyond a reasonable doubt" or conclude on innocence. [ 78 ] In this case, the judge adequately defined and distinguished the direct evidence from the circumstantial evidence.

He also instructed jurors on the way in which these two types of evidence could be used and, most importantly, he reminded them that each of the essential elements of each named offence had to be proved beyond any reasonable doubt based on the evidence as a whole: [ translation ] Direct evidence establishes a fact directly: a witness to an event states what he or she saw, observed, or heard. Indirect or circumstantial evidence arises indirectly from direct evidence. A fact that was not observed, therefore one to be determined, may be deduced from a fact that is established by direct evidence.

The trier of fact, through inference or deduction, draws a conclusion of fact from a known fact that has been accepted into the record. ... The deduction or inference that the jury may draw must, however, be based on evidence that the triers of fact, yourselves in this case, consider to be reliable and credible. This evidence must be reasonable without being purely speculative, hypothetical, or (inaudible). You may presume something based on reliable clues in evidence that has been accepted as being probative . You may not rely on mere conjecture.

The fact to be determined must be logically inferred from the known fact. The unknown fact to be determined must necessarily arise from the known fact without falling into pure hypothesis or speculation. ... Together, these facts must tend to establish the conclusion that must be drawn. Each of the facts or clues, when considered by themselves, are not sufficient to justify the conclusion sought. Yet, when taken together, these facts may, through circumstantial evidence, establish the existence of a presumed fact, that is, a conclusion of fact drawn from these circumstances .

We often refer to puzzles as an example in this respect, where individual pieces mean nothing on their won, but when all the pieces are put together, a picture appears. Obviously, the trier of fact must not limit him or herself to examining each element of evidence separately, but must instead consider whether, based on the facts that have been accepted, there is cause to draw the inference or deduction that a party would like him or her to draw. ...

The conclusion of fact drawn from the circumstantial evidence, when it concerns the existence of an element that is essential to the commission of an offence, must be established beyond a reasonable doubt. Failing that, this essential element has not met the prosecution's burden of proof ...

For circumstantial evidence to lead to a guilty verdict, you must be convinced beyond any reasonable doubt of the existence of a fact relating to an essential element of the offence that was inferred from all the evidence adduced . [Reproduced as transcribed.] [Citations omitted.] [Emphasis added.] [ 79 ] Examined in light of the context of the entire jury charge and the unfolding of the trial, the disputed excerpt does not appear to be erroneous to the point of justifying an intervention. [ 80 ] In these circumstances, the judge was under no obligation to accept the request submitted by appellant's counsel to correct the charge.

5.4 Vetrovec warning [ 81 ] For the appellant, there was no valid reason to caution the jury against believing the testimony of David Simoneau without confirmatory evidence. In his opinion, the prejudice is all the more significant since this witness for the prosecution exculpated him. [ 82 ] Although he did not personally testify, the appellant argued that the prosecution's evidence showed that he was not aware that Vincent Lacroix and his accomplices were cheating and swindling those who had invested in the Norbourg group.

The argument particularly concerned the testimony of David Simoneau, whose version confirmed his ignorance of Lacroix's embezzlement. [ 83 ] Although he is very young and does not have a criminal record, David Simoneau was the main instrument used by Lacroix to repatriate, under false pretences, the investors' money entrusted to the security custodian, which he then misappropriated for his own benefit. [ 84 ] When the scam was exposed, Simoneau, whose involvement in the indictable offences committed was significant, entered into a complete immunity agreement in exchange for his collaboration and testimony against Lacroix and his accomplices. [ 85 ] The Vetrovec warning is not only required when a witness has a long history of crime, but is relevant for all Crown witnesses whose credibility may be suspect or problematic. [ 86 ] On this subject, Khela notes: ... all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so. [11] [ 87 ] Furthermore, the testimony of Simoneau is not merely exculpatory, as the appellant would have us believe.

It also includes passages that are very damning for him, especially respecting the automation of false data integrated into forged reports from NT in which he and Félicien Souka substantially collaborated. [ 88 ] What is more, it must be recalled that the appellant was being tried jointly with four other accused, some of whom impugned Simoneau's credibility and requested that the jurors be cautioned against rendering a guilty verdict based on such uncorroborated testimony. [ 89 ] I am of the view that the judge correctly drew the jury's attention to the risk represented by Simoneau's testimony. [ 90 ] As for the judge needing to reiterate that the testimony could be believed in part, as he had done during the preliminary and final charges, I find that it was not necessary to repeat once more what had already been said on four occasions. [ 91 ] This ground of appeal is therefore without merit. 5.5 Coexistence of the actus reus and mens rea of criminal involvement prior to or on the dates specified in the indictment [ 92 ] The appellant submits that the prosecution's choice to file a charge of fraud for each withdrawal of funds from the security custodian without the concerned investors' knowledge and to give the date of each withdrawal as the date on which the offence was perpetrated made it unnecessary to offer a specific instruction regarding the fact that the action taken to aid the commission of fraud necessarily had to be prior to or concomitant with the fraudulent withdrawal. [ 93 ] He then points to a short excerpt from the final charge where the judge added that the jurors must conclude beyond any reasonable doubt that the appellant [ translation ] "was not a passive spectator in Vincent Lacroix's fraud" and makes the argument that, presented this way, the instruction is confusing because it does not adequately specify the timing of the impugned actions and fails to distinguish between involvement in the offence and being an accessory after the fact. [ 94 ] This point of view fails to consider the jury instructions as a whole and the fact that in this case the fraud was committed in stages starting with the withdrawal, unbeknownst to the investors, of funds held by the security custodian, which were then sent to corporate entities controlled by Lacroix and the appellant, from where they were embezzled for their personal benefit. [ 95 ] The investors' money was moved using several deceitful manoeuvres to conceal the embezzlement, such as the false pretences given to the security custodian to free up the funds, the forgery of documents to confound the AMF and investors, and the use of secret bank accounts and corporations that were not subject to the AMF to dissimulate these abuses. [ 96 ] The whole scheme served to maintain the image that NSF, NGA and their officers complied with industry rules and to give a false sense of security to investors who honestly believed that their savings were safely entrusted to the security custodian, when in truth, their money was in the hand of Lacroix and of those he had involved in his racket. [ 97 ] I understand from the concurring reasons of Dickson, J. in Bell , [12] that the commission of the offence does not necessarily end at the moment all of its essential elements are first present: The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada.

Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. In this case there was evidence that the intended and actual destination within Canada was St- Hubert, but there were stops along the way at Toronto and Mirabel. In my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert.

[Emphasis added.] [98] In R. v. Vu,[13] the Supreme Court concludes that, even if all the constitutive elements of the offence of kidnapping (undersection 279(1) Cr. C.) are present from the time of the initial apprehension and removal, the perpetration continues as long as the victimremains confined (under section 279 (2) Cr. C.): ...

Therefore, while the crime of kidnapping may be complete in law when the victim is initially apprehended and moved, the crime willnot be complete in fact until the victim is freed.[14] [99] There are two components to the actus reus of fraud: (1) a dishonest act established by evidence of deceit, falsehood or otherfraudulent means and (2) deprivation demonstrated by proof that because of the dishonest act, the victim's pecuniary interests wereharmed or that there is a risk of harming them. [100] The mental element of the offence will be proved if the accused was subjectively conscious of the consequences of theprohibited act or was reckless as to its consequences. [101] In this case, even if the constitutive elements of fraud were present from the moment of the withdrawal of the funds belonging toinvestors and until then held by Northern Trust, I find that the perpetration of the fraud continued as long as there were dishonest actsthat caused, aggravated, or perpetuated the harm or the risk of harm to the investors. [102] In R. v.

Vu, Moldaver J. discusses criminal involvement in an offence that is ongoing: [58] Under s. 21(1), a person is criminally liable, as a party to an offence, if that person, having the requisite intent, plays one of thethree enumerated roles in the offence — principal, aider or abettor. An individual will bear the same responsibility for the offenceregardless of which particular role he or she played: R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652, at pp. 689-90. As thisCourt recently explained in R. v.

Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that person— armed with knowledge of the principal’s intention to commit the crime and with the intention of assisting the principal in itscommission — does (or, in some circumstances, omits to do) something that assists or encourages the principal in the commission of theoffence (paras. 14-18). [59] In my view, the well-established principles of s. 21(1) criminal liability apply with equal force to continuing offences that havebeen completed in law but not in fact.

In particular, where an accused — with knowledge of the principal’s intention to see a continuingoffence through to its completion — does (or omits to do) something, with the intention of aiding or abetting the commission of theongoing offence, party liability is established. [60] Applying that principle to this case, once it is understood that kidnapping is an aggravated form of unlawful confinement, whichcontinues until the victim is freed, there is no reason in law or logic why a person who learns that the victim has been kidnapped andnonetheless chooses to participate in the kidnapping enterprise, should not be found liable as a party to the offence of kidnapping under s.21(1) of the Code. [61] A series of appellate decisions are instructive in this regard.

The Ontario and Nova Scotia Courts of Appeal, having found thatnarcotics importation was a continuing offence, held that a person could be charged as a party to the offence under s. 21(1) at any pointfrom the time the goods entered Canada until they reached the final destination, even though the offence could be considered complete inlaw at the moment the goods had crossed the border: R. v. Hijazi (1974), (ON CA), 20 C.C.C. (2d) 183 (Ont. C.A.);R. v. Whynott (1975), (NS CA), 12 N.S.R. (2d) 231 (S.C. (App. Div.)); R. v. Tanney (1976), (ONCA), 31 C.C.C. (2d) 445 (Ont. C.A.).

In Bell, the majority cast doubt on these decisions by adopting a narrow construction of the term“import” in s. 5 of the Narcotic Control Act.

But the majority decision in Bell does not detract from the general principle articulated inthe case law that a person who chooses to engage in a continuing offence with full knowledge of the offence can be held responsible asparty to that offence under s. 21(1) of the Code. [62] In his concurring opinion in Bell, Dickson J. relied on these appellate decisions in finding that the importation offence was not“over and done with” and that criminal liability could be incurred as long as the offence was ongoing in fact.

As Dickson J. held: To “actually commit” importing, an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country; this, bydefinition, necessitates crossing the Canadian border.

Someone who becomes involved only after the border crossing, however, may beaiding and abetting a person bringing the goods from outside Canada to a given destination inside Canada. [Emphasis added; pp. 478-79.] Therefore, although not a party at the time the offence was initiated (by the principal(s)), a person may become a party to the offence aslong as the offence is not “over and done with”. [Emphasis added.] [103] Applied to the context of this case – it being understood that the fraud continued as long as there were dishonest acts to keep thevictims ignorant of the financial harm being suffered or that could be suffered – individuals who, like the appellant, decide to aid theprincipal after finding out about the fraudulent withdrawals incur their criminal liability for the ongoing offences even if they were notparties when the principals (Vincent Lacroix and David Simoneau) began committing them. [104] According to the evidence, the appellant actively participated in creating a form template to create false reports that were similarin every way to those produced by the security custodian.

This evidence, coupled with that of his knowledge of the fraudulentwithdrawals ordered by Lacroix and his intention of aiding the principal in committing fraud, allowed a jury that received theappropriate instructions to find him guilty of the offences subsequently committed by using this template to swindle those who held themutual funds.

[ 105 ] The evidence of the help the appellant gave Lacroix to commit the fraud is not limited to his involvement in the document forgery operation of October 2002, triggered by the AMF audit.

The testimony and documents filed at trial reveal, inter alia , that the appellant: - recruited Félicien Souka, the computer specialist who was the source of the forgeries, at Lacroix's request; - is a director of the corporate entities in the Norbourg group through which the funds stolen from the investors were routed; - signed cheques drawn on the bank account of NI, a corporation that received $38.5 million in funds embezzled from the Norbourg and Évolution mutual funds, and made out to Vincent Lacroix ($1,550,000) and his personal creditors ($9,064); - authorized the purchase and was involved in the deed of purchase of a building housing the "Le Grand Café" restaurant by SIM, a body controlled by Lacroix, which dissipated $6,550,000 million belonging to investors. - as a director for NGF, authorized the purchase of Gestion BBA inc. for $6,000,000 million with funds from the investors' savings held by Northern Trust. [ 106 ] Each fraudulent withdrawal from NT was concealed with forged documents to shield it from the AMF's audits and to pave the way for NT's approval of the next withdrawal.

The investors' money then passed through the bank accounts of NSF or NGA, kept separate from the books and hidden from the eyes of outsiders, before being moved to corporations controlled by Vincent Lacroix, Jean Cholette, and the appellant and not subject to the AMF's authority, allowing the men to dispose of the money as they saw fit. [ 107 ] It was only when this scheme ceased that the fraud offence in fact ended.

The aid given by the appellant to the principal during this process contributed to the deprivation suffered by the investors and occurred while the fraud was being perpetrated, thereby incurring his criminal liability as a party to the offence. [ 108 ] Examined in this light, the instructions to the jury regarding the material element of criminal participation are not lacking. They include the jury’s obligation to consider for each charge of fraud whether the appellant aided Vincent Lacroix, by

an act or omission, in committing the frauds against the investors. The judge's insistence on the fact that a spectator or an individual who passively witnesses an offence is not a party to that offence properly emphasized the requirement that the accused's conduct aid the principal offender. [ 109 ] A review of the instructions as a whole reveals that on several occasions the judge repeated that the prosecution had to prove beyond any reasonable doubt that, through his conduct, the appellant had aided the principal in committing the offence and that he had intended to facilitate the commission.

The instructions given to the jury are clearly to the effect that the aid must be prior to or concomitant with the perpetration of the fraud, as the following excerpts show: [ translation ] You must therefore consider and decide whether acts by each of the accused were intended to aid Vincent Lacroix, if each of the accused, through their conduct, aided him, if they contributed to or facilitated the commission of fraud. ... You may find that the conduct of each of the accused aided Vincent Lacroix, even if the latter, alone and without any aid, was capable of committing the offence.

For this essential element to be proved, it is enough that each of the accused, by their conduct, actions, and acts relating to the fraud, intended to aid Vincent Lacroix in the commission of the offence or facilitate that commission.. I point out that aiding requires more than passive and uninterested conduct, more than being merely present and watching someone commit an offence. A person's mere presence at the scene of the offence is not enough, in itself, to constitute participation. A passive witness to an event is not a party or an accomplice. ...

You have noticed that the indictment alleges that the accused committed fraud on specific dates. You also will have understood that the dates of the frauds are the dates on which Vincent Lacroix did in fact withdraw funds. Because the accused before you are charged with these same frauds as a result of their complicity in them, the dates in the indictment do not necessarily reflect the dates on which the accused before you acted, but those on which Vincent Lacroix acted.

An accomplice may act with a view to aiding the actual perpetrator in committing the offence, even if the actual perpetrator did not commit the offence on the same date that the accomplice provided the aid. Picture, if you will, an elaborate plan to import narcotics stretching over many months.

The question is not whether the accused acted on the dates identified in the indictment to aid Vincent Lacroix, but whether the acts they performed with the intention of aiding Vincent Lacroix did aid him in committing the offence on the date indicated in the indictment. [ 110 ] Moreover, the examples chosen by the judge to illustrate his remarks on the subject also express the need for the aid to be prior to or concomitant with the perpetration of the offence. [ 111 ] The appellant's argument that the instruction regarding the material element of criminal participation was inadequate or insufficient is consequently without merit. 5.6 Doctrine of wilful blindness [ 112 ] The appellant argues that the judge should not have instructed the jurors on the doctrine of wilful blindness because the

principals’ strategy was in fact to conceal the existence of the withdrawals of funds held by NT from him. [113] The argument is based on the testimony of David Simoneau and assumes that the commission of each of the frauds wascomplete as soon as the funds were withdrawn.

As I explained earlier, however, this premise is incorrect. [114] The judge adequately instructed the jurors on both aspects of the mental element of participating in the fraud: (1) knowledge thatthe principal had the required intention to commit the offence and (2) the specific intention to aid the principal in committing theoffence. [115] The judge also correctly pointed out that the prosecution had to prove both aspects of mens rea beyond any reasonable doubt: [translation] ...

What counts and what the prosecution must prove beyond any reasonable doubt is that the act or the conduct of each of the accusedwas intended to aid Vincent Lacroix in committing the alleged frauds. ... Fourth element. The fact that the accused knew that Vincent Lacroix intended to commit fraud.

To find the accused guilty of fraudbecause they aided Vincent Lacroix to defraud investors, the prosecution must show beyond any reasonable doubt that they knew thatVincent Lacroix intended to defraud these investors. [116] At that point, it was perfectly relevant to point out to the jurors that the existence of the element relating to knowledge of theintent to defraud the holders of Norbourg mutual funds could arise from the doctrine of wilful blindness, which allows for knowledge tobe attributed to an accused who deliberately choses not to ask any questions despite having enough doubts as to the criminal intention ofthe principal to want to know more. [117] The judge, who first required that the jurors perform a distinct and specific analysis of the evidence for each accused and foreach count, reminded them again of this obligation when wrapping up his instructions respecting section 21(1) Cr.

C.: [translation] Each accused must receive a separate and individual assessment on each count. Each accused must be judged based on his own conductand his own state of mind according to the evidence that applies only to him, as if there were five (5) separate trials. [118] I find that the instructions on the mens rea of the appellant's criminal participation were sufficient and that it was notinappropriate to instruct the jury on the doctrine of wilful blindness. [119] This ground of appeal must therefore fail. 6.

DID THE JUDGE ERR IN DISMISSING THEAPPELLANT'S MOTION FOR A DIRECTED VERDICTREGARDING THE FRAUD CHARGES? [120] The Supreme Court defines the test to determine whether there is cause to direct a verdict to a jury as follows: [21] The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trialjudge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable juryproperly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v.

Monteleone, (SCC),[1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which thereis admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080. [22] The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidencethat the Crown has advanced.

Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. Bydefinition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of CriminalEvidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed.1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidenceis witness testimony as to “the precise fact which is the subject of the issue on trial”).

It is for the jury to say whether and how far theevidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented directevidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of theoffence, the accused must be committed to trial. [23] The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of theoffence.

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown hasnot advanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitablyrequires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, aninferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether theevidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence,testimonial or real, other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of factmay infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be

testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility.

The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [15] [ 121 ] That is exactly the test used by the judge to dismiss the requests to have acquittals directed to the jury charged with determining the appellant's fate. [ translation ] [22] From the evidence already listed, a jury properly instructed in law could also quickly find that the accused knew or were wilfully blind to the fact that Vincent Lacroix was repeatedly and systematically committing fraud to the detriment of the investors and that their actions made it easier for him to do so.

One need only refer to the repeated forgery of documents whose use could not be legitimate. [23] The Court is therefore of the view that there is evidence based on which a fair, reasonable, and properly instructed jury could find the accused guilty on all counts of fraud. [ 122 ] The decision is based, in this case, on well-established principles and on a reasonable and fair assessment of the evidence. There is therefore no reason to interfere on this issue. 7.

ARE THE VERDICTS UNREASONABLE? [ 123 ] The appellant argues that the evidence does not support any of the guilty verdicts rendered. [ 124 ] Section 686(1)( a )(

i) Cr. C. provides that in an appeal from a guilty verdict, the Court may allow the appeal and set aside the verdict on the ground that it is unreasonable or cannot be supported by the evidence. [ 125 ] A verdict's reasonableness is a question of law [16] with respect to which appellate courts must show great deference by limiting their intervention to cases where there is an unreasonable

interpretation of the evidence. [ 126 ] The Court must then determine whether, in the context of the evidence overall, the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. To do so, it must re-examine and to some extent reweigh the evidence. [ 127 ] In 1992, McLachlin J. (as she then was) wrote in R. v.

W.(R.) : It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence. [17] [ 128 ] In Birianis , the Supreme Court recalls that this analysis requires that the appellate court determine what verdict a reasonable jury properly instructed in law and acting judicially would have rendered.

To do so, it must assess and examine the significance and sufficiency of the evidence. [18] [ 129 ] Based on the most recent Supreme Court judgments in R. v. Sinclair , [19] R. v. R.P. [20] and R. v. W.H. , [21] I conclude the following: 1. The appellate court must first determine whether the verdict is one that a properly instructed jury acting judicially could have rendered in light of the evidence overall; 2. The verdict is unreasonable if the trier of fact drew an inference essential to the verdict that is clearly contradicted by the evidence invoked in support of the inference; 3.

The verdict is unreasonable if the reasons that support it are so irrational or inconsistent with the evidence that they taint the verdict; 4. When determining whether the verdict is unreasonable, great deference must be shown toward the assessment of credibility made at trial; 5.

An appellate court ruling on a guilty verdict returned by a jury must duly take into account the privileged position of the triers of fact that were present at trial and heard the testimony and must not conclude that their verdict is unreasonable based only on the ground that it has a reasonable doubt after reviewing the case. [ 130 ] Finally, I will cite an excerpt from Pardi , [22] a unanimous ruling by this Court, per Yves-Marie Morissette, J.A., on the standard of intervention in these matters: [ translation ] [28] At this point, I will summarize what I have already stated in order to properly frame the questions to be resolved.

An unreasonable verdict, one that cannot be based on the evidence, is reviewable on appeal, and whether it can be characterized as such is a question of law. It will be characterized as unreasonable if the verdict is one that a properly instructed jury acting judicially could not reasonably have returned. In the case of a verdict rendered by a judge alone, an appellate court may take into account the grounds

expressed by the judge to rule on the reasonableness of the verdict, which somewhat increases the scope of the review to be performed. Thus, an inference or finding of fact that is essential to the verdict but that is clearly contradicted by the evidence supporting it, or which has been proved to be inconsistent with undisputed evidence that has not been rejected by the judge, authorizes an appellate court to quash the underlying verdict as unreasonable.

This, however, stops short of allowing appellate judges to consider that they are "entitled to take a subjective view of the evidence and ask [themselves] if [they are] satisfied that the verdict is safe". A nagging doubt may justify a deeper examination of the evidence to determine whether the verdict is indeed unreasonable under the standard I have just set out. This holds true for the verdict returned by a jury and that returned by a judge sitting alone but, in the second case, it is considered in light of the reasons given by the judge.

In any event, however, an appellate court brings nothing new to the assessment of evidence when the judge gives detailed reasons for judgment. [Citation omitted.] [ 131 ] As previously discussed, the argument that the guilty verdicts on the fraud charges are unreasonable because of a dearth of evidence that the appellant knew a fraud was being committed by Lacroix and of the aid he provided to the latter to facilitate the commission of the offence is baseless. [ 132 ] In this case, proof of the actus reus of the appellant's involvement in the frauds committed by Vincent Lacroix is essentially circumstantial and is not limited, as the appellant suggests, merely to the forgery of documents but includes a series of actions taken as a director of the Norbourg group's corporations, which were used to misappropriate, move, distribute and squander the embezzled funds belonging to the investors.

Need we refer to the fact that Ivoire Finance inc., a corporation in which the appellant is a shareholder and director, received $400,000 from these abuses? [ 133 ] Each of the elements of circumstantial evidence need not be proved according to the standard of proof applicable in criminal matters; it is enough that the whole constitutes proof beyond any reasonable doubt of the essential element or elements of the offence it seeks to demonstrate. [ 134 ] Thus, the forgery of the periodical statement from NT may be one element of the circumstantial evidence leading to a fraud conviction, sustaining or justifying a guilty verdict on a charge authorized under

section 467(

a) Cr. C. even though it has not been proved beyond any reasonable doubt. [ 135 ] The guilty verdicts on the fraud charges, therefore, are not unreasonable merely because the appellant was acquitted on the charges of document forgery in connection with the withdrawal of the funds held by NT. [ 136 ] With respect to the convictions for document forgery (counts 168 to 172), it bears noting that when Lacroix began to feel watched and under suspicion, he conjured up income totalling about $50 million from non-existent investments in his accounts with European banks and with NT.

False periodical reports were fabricated by his team of forgers to justify NSF and NGA's operational profits to the tax authorities (totalling $28.8 million) and an increase in personal assets (totalling $20 million). [ 137 ] In this case, the jury could reasonably infer the appellant's involvement in the forgery of documents reflecting these fictitious investments from the following established facts: - the many emails between the appellant, Félicien Souka, Vincent Lacroix and Jean Cholette regarding the investment accounts opened with Northern Trust and UBS; - the files and tables concerning these investment accounts found in the appellant's office and on his computer; - the exhibits filed in support of counts 168, 170, 171 and 172, whose contents reveal the existence of work performed by the appellant respecting the VLX and VLA accounts to show a progressive growth of the fictitious investments, when, in reality, these accounts had been inactive since Vincent Lacroix had opened them. [ 138 ] The fact that each of the elements of circumstantial evidence is not conclusive in itself does not mean that all the elements together cannot constitute proof beyond any reasonable doubt.

It is up to the jury to decide, and its assessment in this respect merits great deference. [ 139 ] The guilty verdicts returned on the forgery charges (counts 168 to 172) are among the verdicts that a properly instructed jury acting judicially could render. [ 140 ] In closing, I find that there is no cause to intervene to reverse the guilty verdicts on the ground that they are unreasonable. 8. ARE THE SENTENCES UNREASONABLE? [ 141 ] After the jury returned the guilty verdicts on the 109 counts of fraud (section 380(1)(

a) Cr. C. ) and the 5 counts of document forgery (section 367(

a) Cr. C. ) on March 7, 2011, the appellant was sentenced to a global prison sentence of 8 years, from which a period of fourteen months was deducted for pre-sentence custody. [ 142 ] Of the 109 counts of fraud, 55 were perpetrated prior to September 15, 2004 (when the maximum sentence for the offence under section 380(1)(

a) Cr. C. went from ten to fourteen years of imprisonment). [ 143 ] Now referred to as the "Norbourg scandal", this gigantic scam allowed its authors to divest some 9,200 individuals who had invested in Norbourg mutual funds of about $95,000,000 between October of 2002 and June of 2005. [ 144 ] Vincent Lacroix, the instigator of the fraudulent misappropriation and its main beneficiary, received a global sentence of thirteen years imprisonment [23] on October 9, 2009, after pleading guilty to 200 charges of conspiracy, fraud, document forgery, and laundering

the proceeds of crime. [ 145 ] When sentencing the appellant and his co-accused Jean Cholette, whom the jury convicted on 112 counts of fraud and 14 counts of document forgery, the Superior Court judge described their roles and the significance of their involvement in the "Norbourg scandal" as follows: [ translation ] [51] The Court is of the view that, for the reasons raised by the Crown, there is no cause to differentiate the moral blameworthiness of Beugré from that of Cholette.

There is no reason to impose a greater sentence on Beugré than on Cholette. [52] First, the evidence does not enable the degree of Cholette's involvement in Lacroix's fraudulent enterprise to be clearly differentiated from that of Beugré. They each played roles that were distinct but necessary for the perpetration of the frauds over such a long period of time.

There is no reason, from a penological standpoint, to differentiate the actions for the fraudulent project that were front and centre from those that were behind the scenes. [53] In the Court's view, Beugré and Cholette occupy the same rank in their complicity with Lacroix. The evidence at trial has convinced the Court that this rank is inferior to that of David Simoneau and Éric Asselin, players who were second only to Lacroix. [54] Second, the connection between Beugré's visibility and the enticement of the swindled investors is tenuous if not non-existent. There is no evidence of it.

The same is true of the fact that he unduly profited from his reputation as a man of integrity. The evidence demonstrates that this is an established consideration with respect to Lacroix but not Beugré. The Norbourg [ translation ] "cyclone” worked only because of the image of Lacroix that was circulated in the financial industry. [55] Third, Cholette was equipped to observe the fraud as the unlawful funds were transfered over time. He had direct access to Norbourg and Lacroix's fraudulent bookkeeping. He was confronted daily with evidence of the fraud because of his direct access to the books.

In fact, Jean Hébert, vice-president of compliance, who was hired in October of 2004 for Norbourg, discovered the truth in minutes when he consulted the bank account statements in 2005. [56] In these circumstances, how can it be said that Beugré deserves a harsher sentence than Cholette. There are no fundamental differences between the roles played by Beugré and Cholette that might justify different sentences. The divergence is minimal, if it even exists. Each had their way of aiding Lacroix steal from honest people.

Beugré's role was not more important in how investors were being robbed. [ 146 ] Far from setting the trial judge's observation aside, the bench hearing the appeal from the sentence filed by Jean Cholette reiterated it instead: [ translation ] [5] In fact, the petitioner was acting at the third rank of the structure set up by Vincent Lacroix: [ translation ] [53] In the Court's view, Beugré and Cholette occupy the same rank in their complicity with Lacroix.

The evidence at trial has convinced the Court that this rank is inferior to that of David Simoneau and Éric Asselin, players who were second only to Lacroix. [24] [8] In this case, it must be noted that the petitioner, contrary to the accused in Chicoine and Charbonneau , was not the instigator of the fraud or its principle beneficiary. He was instead a third-rank player, a tool for accomplishing Vincent Lacroix's dirty work .

That is the difference causing a significant variance from the sentences inflicted in those two cases (7 years for Chicoine and Charbonneau, the instigators and principle beneficiaries of the fraud, 8 years for the petitioner, a mere performer). [Citations omitted.][Emphasis added.] [ 147 ] These two men have relatively similar profiles.

The appellant, a 47-year old individual without a criminal record, is described by his loved ones as a caring father, a man of faith involved in his community, and a loyal, generous and well-rounded person. [ 148 ] Concluding that the eight-year prison sentence for Jean Cholette conflicted with the principle in

section 718.2(

b) Cr. C. that a sentence should be similar to other sentences imposed in similar circumstances and violated the principle of proportionality set out under 718.1 Cr. C. , when reducing the sentence, this Court pointed out: [ translation ] [12] The judge discounted the petitioner's lack of criminal record as a mitigating factor, being of the opinion that fraud is often committed by those who have an unblemished past and who use this fact to better deceive their victims.

In addition, there was the duration of the fraud, which in this case lasted over three years. [13] The fact remains, and I say this with respect, that the trial judge failed to take this into account when referring to the petitioner's particular situation.

He applied only the objectives of denunciation and deterrence, thereby compromising the reintegration of the petitioner into society when his isolation for 8 years was far from justified. [14] There is no doubt that the Norbourg case is a financial scandal without precedent in Canadian history and that the judge could consider this when ordering an exemplary sentence. Because sentencing is an individualized process, the judge had to at the very least weigh the consequences for the accused of being deprived of his freedom for such a long period of time, which he did not do .

Also, although we concede that the judge was justified in having general deterrence prevail over rehabilitation, he could not, however, ignore the latter when crafting a sentence fit for the circumstances. This failure is an error in principle because one important aspect of the

evidence, favourable to the petitioner, was completely discounted . [15] Overall, the Court finds that the sentence imposed on the petitioner does not fit the actions, which are certainly fraudulent , that he committed or his personal situation , thereby violating the fundamental principle of proportionality under

section 718.1 Cr.C . A sentence of 6 years (72 months) will therefore be substituted for the sentence of 8 years (96 months) imposed for the counts of fraud perpetrated after September 15, 2004. Similarly, a sentence of 54 months will be substituted for the sentence of 72 months for the frauds committed after September 15, 2004, and for the counts of forgery. [25] [Citations omitted.][My emphasis.] [ 149 ] These comments are just as relevant to the appellant's case. [ 150 ] With respect to parity of sentencing, in R v. Roks , the Court of Appeal for Ontario stated: [15] The principle of parity expressed in s. 718.2 (

b) of the Criminal Code requires us to take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [16] Parity is not equivalence, nor is similar, identical. Crucial to the parity principle expressed in s. 718.2 (

b) are the cumulative requirements of • similar offences • similar offenders • similar circumstances Similar offenders should receive similar sentences for similar offences committed in similar circumstances. When the similarities begin to fall away, however, so does the principle. Offenders may be at different ages and stages, have different antecedents and realistic prospects for rehabilitation, and greater or lesser involvement in or responsibility for an offence. Some plead guilty and co-operate with authorities. A discount may follow in their cases. Others plead not guilty and have a trial.

They don’t get the discount. [26] [ 151 ] The appellant's personal situation is comparable to that of Jean Cholette. Their roles in the fraudulent scheme dreamt up by Vincent Lacroix are of equal importance, they acted in concert, and they are both third-rank players. They also share the same moral blameworthiness and have both been convicted of the same offences, except for the fact that Cholette was handed three more guilty verdicts for fraud and nine more guilty verdicts for document forgery than the appellant.

In short, it is difficult to imagine two more similar cases. [ 152 ] The respondent argues that the sentence of eight years' imprisonment imposed on the appellant is within the range of sentences (6 to 10 years' imprisonment) imposed in Canada for large-scale fraud and that because it is not unreasonable, there is no cause for the Court to intervene to reduce it. [ 153 ] To accept this argument would be to create a disparity between the sentences of these two co-accused that is not justified by the circumstances of the case.

Such a clear and substantial discrepancy requires that this Court [27] intervene in accordance with the principle that a sentence should be similar to other sentences imposed in similar circumstances. [ 154 ] Given that the sentence imposed on the appellant also violates the principle of proportionality in that the judge failed to weigh the consequences of so significantly depriving an individual of his liberty, I find that the appellant's motion for leave to appeal should be allowed, as should the appeal to reduce the sentences on the counts perpetrated after September 15, 2004, to 72 months' imprisonment and the sentences on the other counts of fraud and document forgery to 52 months' imprisonment, while adding that a period of 14 months should be credited for pre-sentencing custody, all sentences being concurrent.

CLAUDE C. GAGNON, J.A.