R. v. Newhook, 2020 NLCA 13

Derek Newhook (appellant) v. Her Majesty the Queen (respondent) (18/84) Indexed As: R. v. Newhook 2020 NLCA 13 5 C.A.N.L.R. 395 Court of Appeal of Newfoundland and Labrador Welsh, Goodridge and Butler JJ.A. April 15, 2020

Summary: Derek Newhook was convicted of two counts of fraud and one count of breach of trust by a public officer. The convictions related to Mr.Newhook’s employment as the regional operations manager for the Eastern Newfoundland and Labrador School District. His employeralleged dishonesty and misappropriation of School District recourses in the course of his employment. Mr. Newhook appealed theconvictions on the grounds that the verdicts were unreasonable and that the trial judge misapprehended material evidence in theinferences he drew resulting in a miscarriage of justice.

Held: Appeal dismissed (Welsh J.A. dissenting). Goodridge J.A. (Butler J.A. concurring): The verdicts reached by the trial judge were not unreasonable and were adequately supportedby the evidence. The factual findings and factual inferences were not unreasonable and were supportable based on the evidence that thetrial judge accepted (paragraphs 16-42). There was no misapprehension of the evidence and no miscarriage of justice.

The trial judge’s findings that the construction of the shedwas unnecessary and that the shed and trailer were surplus to the School District’s needs were factual inferences that were reasonablysupported by the evidence. Similarly, the trial judge’s implicit finding that Mr. Newhook was responsible for the shed and trailer wasalso a factual inference reasonably supported by the evidence. There was no mistake as to the substance of the evidence and no failure togive proper effect to the evidence (paragraphs 43-49).

Welsh J.A. (dissenting): The trial judge erred in his application of the law regarding criminal fraud. He failed to assess the evidence ofthe actus reas and mens rea against the standard required to be proven. The evidence did not establish beyond a reasonable doubtdeprivation, the risk of deprivation by the School District, or criminal intent by Mr. Newhook (paragraphs 59-79). Similarly, the evidence read as a whole did not support the conclusion that Mr. Newhook’s conduct was such as to amount to criminalbreach of trust. There was no evidence that Mr.

Newhook intended to use his position with the School District for a purpose other thanthe public good; whether or not he made poor management decisions does not fall within the scope of conduct covered by the CriminalCode (paragraphs 80-82). Cases cited: Goodridge J.A.: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 (S.C.C.) H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 R. v. Burns, (SCC), [1994] 1 S.C.R. 656 (S.C.C.) R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000

R. v. Dipnarine, 2014 ABCA 328 R. v. M.L., 2019 NLCA 33, 4 C.A.N.L.R. 448 R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.) R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248 R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746 R. v. Clark, [2005] 1 S.C.R. 6, 2005 SCC 2 Welsh J.A. (dissenting): R. v. Théroux, (SCC), [1993] 2 S.C.R. 5 R. v. Zlatic, (SCC), [1993] 2 S.C.R. 29 R. v. McGrath, 2014 NLCA 40, 356 Nfld. & P.E.I.R. 252 R. v. Riesberry, 2015 SCC 65, [2015] 3 S.C.R. 1167 R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 R. v.

Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381 R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49 Statutes considered: Goodridge J.A.: Criminal Code, sections 122, 380(1)(b), 686(1)(

a) Welsh J.A. (dissenting): Criminal Code, sections 122, 380(1)(b), 686 Counsel: Randolph J. Piercey Q.C., for the appellant; Dana E. Sullivan, for the respondent. The appeal was heard on November 7, 2019 before Welsh, Goodridge and Butler JJ.A. The following judgment was filed on April 15, 2020 by Goodridge J.A., concurred in by Butler J.A., with separate dissenting reasons byWelsh J.A. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [1] On July 10, 2018 Derek Newhook, was convicted of two counts of fraud (s. 380(1)(

b) of the Criminal Code) and one count ofbreach of trust by a public officer (s. 122 of the Code). [2] Mr. Newhook was the regional operations manager for the Eastern Newfoundland and Labrador School District. All threeconvictions flow from complaints made by his employer, alleging dishonesty and misappropriation of School District resources in thecourse of employment. There were 15 other charges set out in an 18 count Information; these other charges were dismissed followingtrial.

[3] Mr. Newhook appeals the three convictions on the grounds that the verdicts are unreasonable and cannot be supported by theevidence, and that the trial judge misapprehended material evidence in the inferences he drew, resulting in a miscarriage of justice. Thesegrounds of appeal engage sub-sections 686(1)(a)(

i) and (iii) of the Code: 686

(1) On the hearing of an appeal against a conviction … the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, … or (iii) on any ground there was a miscarriage of justice; … ISSUES [4] The issues raised in this appeal can be addressed by answering the following questions: • Did the trial judge reach verdicts that are unreasonable or cannot be supported by the evidence? • Did the trial judge misapprehend the evidence resulting in a miscarriage of justice? BACKGROUND [5] Mr.

Newhook, as regional operations manager, had broad responsibilities that included authority over maintenance andoperations staff at the School District depot in Burin. The three charges that resulted in convictions allege, in essence, that he abused hisposition as manager by directing staff at the depot to do work that was of no benefit to the School District, but was of benefit to himselfand a friend.

The work included fabrication of a heavy-duty flatbed trailer, fabrication of a storage shed outfitted with manufacturedoverhead garage doors and electric wiring, and installation of a lift kit and supplementary headlights on a friend’s pick-up truck. [6] It is not contentious that Mr. Newhook authorized School District employees to fabricate the shed and trailer using SchoolDistrict labour and materials; that the shed and trailer were removed from the School District depot yard and relocated at an equipmentyard owned by his friend Kevin Walsh; that a licence plate registered to Mr.

Newhook was placed on the trailer; and that Mr. Newhookauthorized School District staff to install a lift kit and supplemental headlights to Kevin Walsh’s Dodge Ram pick-up truck. Mr.Newhook denies any nefarious intentions. [7] Mr. Newhook authorized the fabrication of other sheds and trailers over the years as part of ongoing School District business. Hetestified that a completed shed would normally be transported directly to its intended site, but if the site was not ready and there werespace issues at the depot, temporary off-site storage was arranged.

He said it was not uncommon to use Walsh’s equipment yard fortemporary storage. The specific shed and trailer in question here remained at Walsh’s yard from the time of removal from the SchoolDistrict depot (May 15, 2015) continuously up to the time of trial (June 27, 2017). [8] Upgrades to the Dodge Ram involved parts paid for by Mr. Walsh and labour paid for by the School District. Mr.

Newhook didnot dispute that he authorized this work, but he said it was justified as a reasonable expense because the School District occasionallyrented the Dodge Ram and the upgrades were required “to assist the [School District] in its operations”. [9] The highlights of Mr.

Newhook’s testimony on the shed and trailer include: “We had several sheds at the [School District] depot and of course we are building sheds on an ongoing basis for the schools. … Once they were built, they would normally be transported to a site or, if a site was not ready, they would be taken off site if theycaused any problems with storage, to await transport. … We try to keep the [School District depot] yard as open as possible because we had 61 buses at the time. So we needed as much yardspace as possibly can have. … Mr.

Pittman [a School District employee] was tasked to contact Kevin Walsh to make arrangements to transport the sheds. … [It] was not an uncommon thing that the trailers would be, or the sheds would be, parked at Mr. Walsh’s property waiting to betransported to the school that the shed was going to eventually land on.” [10] The trial judge did not accept this explanation and rejected all of Mr. Newhook’s testimony, stating – “I did not believe theevidence of the accused”.

The trial judge found that the three charges were proven beyond a reasonable doubt. [11] For the fraud charges the trial judge noted correctly (at paragraph 31) that deprivation, an essential element for those charges, issatisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the School District. There is no requirement ofactual loss or that Mr. Newhook profited by the fraud.

At paragraphs 30 and 31 of his decision (2018 NLPC 0816A00087), the trialjudge discussed the elements of the offence of fraud: [30] The offence of fraud has sometimes been referred to as “dishonest deprivation”. Dishonesty comes in many forms. Dishonestyhas, at its heart, the wrongful use of something in which another person has an interest, in such a manner that this interest is extinguishedor put at risk. See R. v. Zlatic, (SCC), [1993] 2 S.C.R.29, at para. 19. [31] As a matter of law, it is not essential that there be actual economic loss as the outcome of the fraud.

The element of deprivation issatisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim: see R. v. Olan et al.,

(SCC), [1978] 2 S.C.R. 1175. [12] In addressing the fraud charge relating to the shed, the trial judge stated: [41] … [The shed] went on the double axel trailer to Kevin Walsh’s equipment yard. The deprivation of the … shed, combined with thefact that its construction was unnecessary, is a dishonest deprivation.

A conviction for fraud in relation to the shed which was taken toWalsh’s yard is appropriate. [13] For the fraud in respect of the trailer, the trial judge found: [43] Count 6 alleges that the school board was defrauded when the accused had Frank Lambe make the double axel trailer in thedepot using materials paid for by the school board. … [45] By putting a licence plate, which was registered in his name, on the trailer, the accused took ownership of an asset made for, andat the expense of, the school board. He then arranged for the trailer to be taken off school board property, to Walsh’s yard, where itremains.

This is dishonest deprivation which is fraud. [14] At paragraph 61 of his decision, the trial judge discussed the elements of the offence of breach of trust by a public officer: [61] In R. v.

Boulanger, 2006 SCC 32 , [2006] 2 S.C.R. 49, at para. 58, the Court set out the elements of the offencecontemplated by s. 122, as follows: 1) the accused is an official; 2) the accused was acting in connection with the duties of his or her office; 3) the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; 4) the accused's conduct represented a serious and marked departure from the standards expected of an individual in the accused'sposition of public trust; and 5) The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest,partial, corrupt, or oppressive purpose. [15] For the breach of trust by a public officer, the trial judge found: [69] The accused is guilty of a breach of trust because he and Kevin Walsh have been unjustly enriched, at the expense of the schoolboard, as a direct result of the actions of the accused.

The unjust enrichment for the accused includes the fact that he is fraudulentlyregistered as the "owner" of the double axel trailer, which carries his licence plate, THF669. [70] The unjust enrichment for Walsh includes improvements made to a pickup truck at school board expense, and also the detentionof the shed and trailer at Walsh's equipment yard. When presented with conflicting loyalties, the accused favoured his own and hisfriend's interests over those of his employer. That is a breach of trust.

ANALYSIS Did the trial judge reach verdicts that are unreasonable or cannot be supported by the evidence (section 686(1)(a)(i))? [16] Mr. Newhook claims that there were flaws in the trial judge’s assessment of the evidence, and those flaws resulted inunreasonable factual findings and unreasonable verdicts. [17] The convictions are based, in part, on the inferences of fact that Mr. Newhook authorized the fabrication of a shed and trailerknowing they were not needed by the School District, that the relocation amounted to a deprivation, and that improvements to the pick-up were for the benefit a friend. Mr.

Newhook’s argument is that the trial judge, when relying on circumstantial evidence, made theseinferences of fact based on speculation, rather than based upon probabilities and improbabilities. Mr.

Newhook gave examples, and fromthose examples, one can identify the following concerns that he has with the trial judge’s assessment of evidence: • Inferred intent to deprive by deceit because “the sheds were surplus … and they were moved [off site] to conceal thatfact”. • Inferred intention to deprive because “by putting the licence plate, which was registered in his name, on the trailer, theaccused took ownership.” • Inferred intent to deprive by deceit due to time lapse – “[The shed with trailer] has been sitting in Kevin Walsh’s equipmentyard for more than two years.” • Inferred breach of trust because of improvements made to the friend’s pick-up truck. [18] Mr.

Newhook says that the trial judge made these inferences of fact without addressing other possibilities, and in particular,without addressing the explanation that he provided. Law

[19] This Court may allow the appeal under section 686(1)(a)(

i) where it is of the opinion that the verdict is unreasonable or cannot besupported by the evidence. In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, Arbour J. (for the Court) stated at paragraph 42 that “thetest in Yebes continues to be the binding test that appellate courts must apply” when addressing an argument under section 686(1)(a)(i)that a verdict is unreasonable or cannot be supported by the evidence. In R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168(S.C.C.), at 186 McIntyre J. (for the Court) outlined that test in the context of a trial by jury: The function of the Court of Appeal, under s. 613(1)(a)(i) [currently s. 686(1)(a)(i)] of the Criminal Code, goes beyond merely findingthat there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that aproperly instructed jury, acting judicially, could reasonably have rendered.

While the Court of Appeal must not merely substitute its viewfor that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of theevidence. [20] At paragraph 37 of Biniaris, Arbour J. outlined the appropriate application of the test in the context of trial by a single judge: … The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of asingle judge, at least when reasons for judgment of some substance are provided.

In those cases, the reviewing appellate court may beable to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached,and justify the reversal. … [I]n trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to anunreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when thereasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with thefactual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easilysustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

Inferred shed and trailer were surplus and were removed to conceal that fact [21] As stated above, the fraud convictions rest, in part, on the inferences of fact that Mr. Newhook authorized the fabrication of ashed and trailer knowing they were not needed by the School District, and that the removal of these assets from the School District depot,under his direction, amounted to a deprivation.

Dishonesty, an essential element of fraud, flows from these inferences of fact. [22] The trial judge’s findings that the fabrication was not necessary to the School District needs, and that both items were surplus tothe School District needs, were reasonable based on the evidence. Several witnesses, including Mr. Newhook, testified that the shed wasnever used for any School District related purpose. Mr.

Newhook testified that the trailer was never used while he was still employed atthe School District: “For the span of May of 2015 to January 2016 there was no School District functions that required that heavy dutytrailer”. The shed and the trailer remained at Walsh’s yard up to the time of trial.

In his reasons the trial judge relied upon the lack of useto support his inference that the shed and trailer were surplus: [23] … We know that [these sheds were surplus to the requirements of the School District] because one of the sheds has spent the pasttwo years sitting on a trailer in the equipment yard operated by Kevin Walsh. … [24] There is no evidence that these sheds were required by the school board, and the evidence of the accused on that point does notwithstand scrutiny.” [23] The removal of the shed and trailer from the School District depot to Walsh’s yard occurred after work hours and on the eveningprior to the arrival at the depot of headquarters’ personnel from St.

John’s. The unusual timing was a factor that the trial judge reliedupon in finding that the shed was removed from the depot yard to conceal its existence from the eyes of headquarters’ personnel.Employees of the School District, working at its depot, testified that there was no need for the removal of the shed, that there wasadequate space at the depot yard for the shed, and that the shed had been sitting at the depot yard for some months without incident.

Forexample, Eugene Spencer, the bussing supervisor, testified that the shed, while stored at the depot yard, was never in the way and thatthere was no reason that he knew of for its removal. The trial judge found that “there was no honest or legitimate reason for moving theshed and trailer to Walsh's lot, and leaving it there” (decision of the trial judge, at paragraph 67). [24] The trial judge’s inference of fact that the shed and trailer were removed from the depot yard with the nefarious intent ofconcealing Mr. Newhook’s actions is reasonably supported by the evidence.

If a factual inference made by a trial judge is reasonablysupported by the evidence then this Court cannot reweigh the evidence by substituting that inference for an inference of its own (see H.L.v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paragraph 74). [25] The trial judge made a general statement that he did not believe Mr. Newhook’s evidence, and explained his reasons under theheading “Why the Evidence of the Accused Must be Rejected”. The trial judge outlined in detail (21 paragraphs), with a dozen specificexamples, why he disbelieved Mr. Newhook’s evidence.

The trial judge did not directly address all specifics of Mr. Newhook’sexplanation about fabrication and removal of the shed and trailer, but he made the general observation that “the evidence of the accused[that the shed was required for School District purposes] does not withstand scrutiny”. The trial judge also rejected Mr.

Newhook’sevidence that he was not directly involved in the removal of the shed and trailer from the depot: [26] … I do not believe that Ed Pittman and Kevin Walsh made all the arrangements that they did without the accused knowing aboutthem, especially given the obvious friendship between the accused and Walsh. The evidence of the accused, to the effect that Ed Pittmanand Kevin Walsh arranged the move … at night, without any discussion with the accused, is implausible. [26] The trial judge did not refer to Mr.

Newhook’s testimony that the shed and trailer remained idle because “we spent all of ourresources then getting the schools prepped for full day kindergarten”. However, the express rejection of Mr. Newhook’s alternativeexplanation that the shed was built in the ordinary course of business, and that he was not directly involved with the removal of the shed

and trailer, indicates that the lack of nefarious intent was considered by the trial judge and rejected. That degree of consideration wasadequate. As stated by McLachlin J. (for the Court) in R. v. Burns, (SCC), [1994] 1 S.C.R. 656 (S.C.C.), at page 664: [18] Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis forallowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does notgive reasons for deciding one way or the other on problematic points see R. v.

Smith, (SCC), [1990] 1 S.C.R. 991,affirming (1989), 1989 ABCA 187 , 95 A.R. 304 (C.A.), and MacDonald v. R., (SCC), [1977] 2 S.C.R. 665.The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judgerequired to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things doesnot, in itself, permit a court of appeal to set aside the verdict. [19] This rule makes good sense.

To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons withevery aspect of every case would slow the system of justice immeasurably. Inferred intent to deprive because Mr. Newhook’s licence plate was on trailer [27] The licence plate on the trailer was registered to Mr. Newhook. The trial judge relied on that fact, in part, to support his inferencethat Mr. Newhook intended to deprive the School District of this asset.

I say in part because there was other evidence in support of thatinference, such as the timing of the removal of the trailer (after business hours), and the fact the trailer was never returned. [28] The trial judge’s inference of an intent to deprive is a reasonable inference flowing from this evidence. There was no flaw in theevaluation of this evidence. [29] The trial judge did address, and reject, an alternative possibility that the plate was affixed for the temporary purposes oftransportation from the depot to Walsh’s yard. One of the investigating officers, Cst.

Michael Collins, acknowledged on cross-examination that “it is possible” the plate was affixed temporarily as an easy way to get the trailer from one place to another. The trialjudge considered this possibility but rejected it because the plate had remained on the trailer up to the time of the police investigation(March 4, 2016) and because there was no evidence (not even from Mr. Newhook) to suggest the plate was affixed for temporary orshort-term purposes only. In his reasons, the trial judge stated: [44] This was not a temporary conversion of the school board property. It was suggested to Cst.

Collins that the plate could have beenfor another trailer, and could have just been used for the purposes of moving the double axel trailer from the school board depot yard toWalsh's equipment yard. However, there was no evidence that that was what had actually happened. The plate, registered to the accused,was still on the trailer when Cst. Collins saw the trailer in Walsh's yard. [30] I reject Mr.

Newhook’s argument that, because of the alternative possible inference that the plate was attached for temporarypurposes only, the inference taken (a more permanent conversion amounting to detriment) does not satisfy the circumstantial evidencerule. The trial judge considered that alternative possible inference and determined that it did not raise a reasonable doubt. That was hiscall to make. As stated by Cromwell J. in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, adopting comments from the AlbertaCourt of Appeal in R. v.

Dipnarine, 2014 ABCA 328, at paragraph 22: "It is still fundamentally for the trier of fact to decide if anyproposed alternative way of looking at the case is reasonable enough to raise a doubt … ." The circumstantial evidence does not have tototally exclude other conceivable inferences; the trier of fact may reject alternative

interpretations of the circumstances that areconsidered by him or her to be unreasonable (see paragraph 42 of Villaroman). That is what occurred here. The trial judge’sconsideration and rejection of the alternative explanation advanced by Mr. Newhook was adequate, and his reasons do not offend thecircumstantial evidence rule. The inference ultimately drawn by the trial judge, having regard to the standard of proof, was reasonablyopen to him. Inferred intent to deprive due to time lapse of more than two years [31] Mr.

Newhook says that the trial judge’s reliance on the approximate two-year duration (May 2015 to June 2017) that the shedand trailer remained at Walsh’s yard, to support the inference that the School District was deprived of these assets, exposes a flaw in hisassessment of the evidence. The flaw, according to Mr. Newhook, is that the trial judge failed to recognize that Mr. Newhook had no sayin the matter because he was off work on sick leave as of January 2015, and off work permanently as of April 2016. [32] The only evidence that Mr.

Newhook was off work on sick leave as of January 2015 came from him, and that testimony wasclearly an error, and in my view was an error so obvious that that it did not warrant discussion. The documentary and viva voce evidenceestablishes that Mr. Newhook was still working at the School District until January 2016 – approximately eight months after the date thatthe trailer and shed were removed from the School District premises. Mr. Newhook testified about his own work activity with the SchoolDistrict during the period of May and June 2015; Mr.

Newhook was included on email communication with other School District staffduring 2015; Mr. Newhook was signing off the employee time sheets at least until December 16, 2015; Robert Tobin testified about awork related meeting with Mr. Newhook (at Mr. Newhook’s office) on December 15, 2015; and Robert Tobin testified that Mr.Newhook went off work in January 2016. [33] There is no merit to Mr. Newhook’s claim that he had no responsibility for matters affecting the shed and trailer.

He was stillworking full time as the School District’s operations manager until January 2016 and therefore had responsibility for the shed and trailerup to that date. The trial judge was aware that Mr. Newhook continued in the position of operations manager until January 2016 andtherefore “had eight months to arrange the return of the shed and trailer from Walsh’s equipment lot to the depot yard, and took no stepsto secure return of the assets” (decision of the trial judge, at paragraph 67).

The eight months referenced by the trial judge is the timespan from the date the trailer and shed were relocated – May 2015 – until the date Mr. Newhook left work on sick leave – January 2016. [34] I agree that Mr. Newhook had no say after he went off work in January 2016; the trial judge’s reasons do not suggest otherwise.The context, in which the trial judge referred to the two-year duration, was during the discussion that the shed and trailer were not usedby the School District from the date of removal (May 2015) until the date of trial commencement (June 2017).

The trial judge used thattime lapse to support the inference that the items were surplus. The context did not suggest, directly or indirectly, that Mr. Newhook still

occupied the office of operations manager during that two-year period. The trial judge’s reasons illustrate that he was aware that Mr. Newhook was not working for the School District continuously during those two years, and aware Mr. Newhook went off work in January 2016. [ 35 ] There was no flaw in the trial judge’s assessment of the evidence on this point. Inferred breach of trust because of improvements to friend’s pick-up [ 36 ] Mr.

Newhook says that the trial judge’s conclusion, that improvements to his friend’s Dodge Ram pick-up amounted to breach of trust, was made without addressing his testimony that the improvements were done for the School District’s benefit. Mr. Newhook submits that the trial judge’s failure to address his testimony exposes a flaw in the evaluation of the evidence and the flaw resulted in an unreasonable conclusion. [ 37 ] Mr. Newhook testified that the School District had four or five service vehicles and “if a vehicle went down … we would rent a replacement vehicle day-to-day as required”.

A Dodge Ram owned by his friend, Kevin Walsh, was one of these replacement vehicles. School District employees Robert Tobin and Frank Lambe testified that the Dodge Ram was the vehicle that Mr. Newhook normally drove on a daily basis. The Dodge Ram was not satisfactory for hauling heavier trailers, but could be if upgraded with a lift kit. Mr. Newhook described a conversation he had with Mr. Walsh, about upgrading the Dodge Ram so it could perform this heavier work for the School District and the decision that Mr.

Walsh would pay for the parts and the School District would pay for the installation: “So we discussed that and Mr. Walsh agreed to purchase the lift kit … It’s not a big job to install it; an hour, couple of hours work. When we have time we can definitely install the kit to assist the [School District] in its operations.” [ 38 ] Mr. Newhook also testified about upgrading the Dodge Ram at the School District depot, with School District maintenance staff installing supplementary headlights: I said [to Mr.

Walsh], if you want to pick up the lights … I’ll make arrangements with our staff when they have downtime … that they’d be able to haul the vehicle in and put the lights on because it was for the benefit of the [School District] … to allow safer travels on the Burin peninsula highway.” [ 39 ] Mr. Walsh could not recall these conversations with Mr. Newhook but testified that “I might have purchased [the lift kit]” and that “I probably bought [the headlights]”. He also testified that the Dodge Ram was subsequently sold to Mr. Newhook for his personal use. [ 40 ] The trial judge stated that he did not believe Mr.

Newhook’s evidence, and gave specific reasons for not believing the evidence about the upgrades to the Dodge Ram. On the latter, the trial judge stated: [19] Another problem with the evidence of the accused is the rental of pickup trucks from Kevin Walsh … At least one [rented] pickup was unsatisfactory. However, instead of demanding that Walsh supply a pickup truck which met the school board requirements, the accused had the truck modified by school board employees. … [21] The relationship between Kevin Walsh and the accused casts a pall over the evidence of the accused.

Leaving aside the truck and trailer rentals, the fact that the school board depot, and not Kevin Walsh, installed the lift kit and the "moose lights" on the pickup truck which had been rented from Kevin Walsh is suspect. It is not the responsibility of the customer to upgrade the rented vehicle, to make it comply with the requirements for which it was rented.

On the contrary, it is the responsibility of the supplier to ensure compliance with the requirements of the customer… [22] Instead of requiring Walsh to comply with the school board requirements for a rented pickup truck, the accused directed the school board depot mechanic to perform improvements to the rented truck. [ 41 ] It is evident from the above that the trial judge considered and rejected Mr. Newhook’s explanation that the improvements were done for the School District’s benefit.

In concluding on the issue, the trial judge stated: [70] The unjust enrichment for Walsh includes improvements made to a pickup truck at school board expense … When presented with conflicting loyalties, the accused favoured his own and his friend's interests over those of his employer. [ 42 ] There was no flaw in the trial judge’s evaluation of the evidence surrounding upgrades to the Dodge Ram; the trial judge considered and rejected Mr. Newhook’s testimony that the improvements were done for the School District’s benefit.

The inference of breach of trust (misusing the authority of his public office to benefit a friend) is a reasonable inference based on the credibility assessment. It is not the role of this Court to re-weigh the evidence relative to credibility unless there is no evidentiary basis for the conclusion on credibility that was reached. Deference is owed to the trial judge who had the advantage of observing and hearing the witnesses first-hand (see paragraph 67 of R. v. M.L . , 2019 NLCA 33 ).

Did the trial judge misapprehend the evidence regarding counts 5, 6 and 18, resulting in a miscarriage of justice ( section 686(1) (a)(iii))? [ 43 ] Mr. Newhook set out, at paragraph 16 of his factum, the areas where he claims the trial judge misapprehended the evidence, resulting in a miscarriage of justice: This misapprehension relates specifically to grounding convictions in a finding of fact for which there was no evidence: that the sheds and trailer were surplus.

Also, the judge made findings, implicitly, that the Appellant was responsible for the shed and trailer staying at Walsh’s yet ignored [that] the Appellant was not in a position to have a say in moving them.

… [I]f the Court finds the error supports convictions on counts 5 and 6 being overturned, count 18 must also be overturned. [44] This Court may allow the appeal under section 686(1)(a)(iii) where it is of the opinion that there was a misapprehension of theevidence that resulted in a miscarriage of justice. Substantially, for the reasons set out above (addressing alleged flaws in the trial judge’sassessment of the evidence), I am of the view that the trial judge did not misapprehend the substance of the evidence on any materialmatter. Law [45] In R. v.

Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paragraph 2, Binnie J. for the Court, agreeing with comments of DohertyJ.A. in R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), set out the legal test forassessing whether there has been a misapprehension of the evidence giving rise to a miscarriage of justice within the meaning of s.686(1)(a)(iii): The misapprehension of the evidence [giving rise to a miscarriage of justice] must go to the substance rather than to the detail. It must bematerial rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the testis expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative ofthe judgment but "in the reasoning process resulting in a conviction". Shed and trailer were surplus [46] The trial judge’s finding that the fabrication of the shed and trailer were not necessary for School District purposes is a factualinference reasonably supported by the evidence, including evidence from Mr. Newhook.

There was no mistake as to the substance of theevidence, and no failure to give proper effect to evidence. When a factual inference made by a trial judge is reasonably supported by theevidence then this Court cannot reweigh the evidence by substituting that inference for an inference of its own (see H.L. v. Canada(Attorney General), at paragraph 74 and R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, at paragraph 25). [47] The evidence was that the shed at issue here was never used for any School District related purpose.

The trailer, the trial judgenoted correctly, sat idle at Walsh’s yard, with the shed on it, up to the time of trial. The trial judge’s findings that the construction of theshed was unnecessary, and that the shed and trailer were surplus to the School District needs, are factual inferences that are reasonablysupported by the evidence. The rejection of Mr. Newhook’s explanation was a credibility finding. It is not the role of this Court to re-weigh the evidence relative to credibility unless there is no evidentiary basis for the conclusion on credibility that was reached.

As statedby Deschamps J. (for the majority) in R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746, at paragraph 10: A court of appeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict isreasonable cannot interfere with those assessments unless it is established that they "cannot be supported on any reasonable view of theevidence" (R. v. Burke, (SCC), [1996] 1 S.C.R. 474 (S.C.C.), at para. 7). Mr. Newhook was responsible for the shed and trailer remaining at Walsh’s yard [48] The trial judge’s implicit finding that Mr.

Newhook was responsible for the shed and trailer remaining at Walsh’s yard is also afactual inference reasonably supported by the evidence. There was no mistake as to the substance of the evidence, and no failure to giveproper effect to evidence. [49] Mr. Newhook was the regional operations manager for the School District and continued in that office until January 2016. In hisexamination-in-chief, Mr. Newhook admitted arranging for the relocation to Walsh’s yard in May 2015, even though he was uncertainwhether he was present at the School District depot when the actual relocation occurred.

In his reasons, the trial judge noted that Mr.Newhook had eight months after the relocation to have the items returned, and took no steps in that regard. CONCLUSION [50] The inferences of dishonest intention for the fraud charges were based on trial judge’s finding that Mr. Newhook authorizedfabrication of the shed and trailer knowing that the items were not needed, and then removed the items from School District premiseswhen there was no honest or legitimate reason for removal. The inference of dishonest intention for the breach of trust charge was basedon the trial judge’s finding that Mr.

Newhook authorized improvements to his friend’s pick-up truck at School District expense. Thesefactual inferences and factual finding are not unreasonable and are supportable based on the evidence that the trial judge accepted. Asstated by Fish J., for the Court, at paragraph 9 of R. v. Clark, [2005] 1 S.C.R. 6, 2005 SCC 2: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And itmust be shown to have affected the result. [51] The reasons, read as a whole, establish that the trial judge was aware of the elements required to be proven, and was satisfied thatthey were proven beyond a reasonable doubt on each of the three counts. In the course of his reasons, the trial judge considered thealternative theory advanced by the Mr. Newhook’s testimony, and rejected it. The reasons explain the rejection and set out the factual findings and inferences (relying on both direct and circumstantial evidence) that link the evidence to theverdicts.

The trial judge’s reasons reveal that he was aware of the conflicting evidence when making credibility assessments, and inmaking the factual findings and factual inferences. A trial judge’s determination of credibility of a witness, including an accused witness,attracts a high degree of deference. [52] The verdicts reached by the trial judge are not unreasonable and are adequately supported by the evidence. There was no

misapprehension of the evidence, and no miscarriage of justice. [ 53 ] I would dismiss the appeal. Welsh J.A. (Dissenting): [ 54 ] Derek Newhook was convicted of two counts of fraud and one count of breach of trust contrary to sections 380(1) (

b) and 122 of the Criminal Code . At issue is whether the trial judge erred in his application of the law. BACKGROUND [ 55 ] Mr. Newhook was the operations manager for the Eastern School District, Burin depot, which was responsible for providing services to schools in the area. The depot was responsible, for example, for building, fabricating and maintaining items required by the School District, as well as providing such services as the collection and disposal of garbage. [ 56 ] The trial judge convicted Mr. Newhook of two counts of fraud contrary to section 380(1) (

b) of the Criminal Code in relation to a shed and a double axel trailer built by employees at the depot: [41] Count 5 alleges fraud committed by the accused using employees of the [School District] to work for him and charge their hours to the school board while building three sheds. The sheds were surplus to the requirements of the [School District], in the sense that they were not immediately required for school purposes. Two of these three sheds remained on [School District] property, and one went, on the double axel trailer, to Kevin Walsh’s equipment yard.

The deprivation of the third shed, combined with the fact that its construction was unnecessary, is a dishonest deprivation. A conviction for fraud in relation to the shed which was taken to Walsh’s yard is appropriate. [42] I draw a distinction between the two surplus sheds which remained on [School District] property and the single surplus shed which was taken to Walsh’s yard.

While it is true that the [School District] had to bore out the locks on the two sheds in order to gain access to them [because the keys could not be found], they could have done that at any time that they wished to use the sheds on their property. While a case can be made that the temporary deprivation of the use of the sheds amounts to fraud, I take a conservative view of the matter, finding fraud only where the school board asset was actually taken off, and kept off, the premises of the [School District].

As a result, the conviction for count 5 relates only to the shed which is at Walsh’s yard. [43] Count 6 alleges that the [School District] was defrauded when [Mr. Newhook] had Frank Lambe make the double axel trailer in the depot using materials paid for by the [School District]. It is clear that the [School District] required a trailer in order to carry out its daily operations. However, this trailer was not so employed.

In his investigation, Constable Collins found that the double axel trailer, licence plate THF669, which had been used to carry a shed to Kevin Walsh’s equipment yard, was registered in the name of [Mr. Newhook]. [44] This was not a temporary conversion of the [School District] property. It was suggested to Cst. Collins that the plate could have been for another trailer, and could have just been used for the purposes of moving the double axel trailer from the [School District] depot yard to Walsh’s equipment yard. However, there was no evidence that that was what had actually happened.

The plate, registered to [Mr. Newhook], was still on the trailer when Cst. Collins saw the trailer in Walsh’s yard. [45] By putting the licence plate which was registered in his name on the trailer, [Mr. Newhook] took ownership of an asset made for, and at the expense of, the [School District]. He then arranged for the trailer to be taken off [School District] property, to Walsh’s yard, where it remains. This is dishonest deprivation, which is fraud. A conviction is appropriate for count 6. [ 57 ] Count 18, regarding a breach of trust contrary to

section 122 of the Criminal Code relates to Mr. Newhook’s duties as a regional operations manager for the School District: [65] As the operations manager for the Eastern School District Burin depot, the first duty of [Mr. Newhook] was to the school board, and, through it, to the public. He breached that duty by favouring Kevin Walsh with benefits to him at the expense of, or to the prejudice of, the best interests of the [School District].

These benefits included the improvements carried out on Walsh’s pickup truck by [School District] depot employees, including the installation of the lift kit and “moose lights” light bar. The prejudice to the best interests of the school board also included the delivery of the double axel trailer which had been made by Frank Lambe and the shed carried on that trailer to Kevin Walsh’s equipment yard. ... [67] ... As indicated earlier, fraud incorporates the elements of dishonest deprivation. I find that there was no honest or legitimate reason for moving the shed and trailer to Walsh’s lot, and leaving it there.

The school board has been deprived of the use of the shed and trailer for the time that those assets have been stored at Walsh’s lot. That is unjust enrichment, caused by [Mr. Newhook’s] breach of trust. ISSUES [ 58 ] At issue is whether the trial judge erred by failing to apply the law in convicting Mr. Newhook of fraud and breach of trust. In particular, this requires consideration of the actus reus and mens rea that underlie those criminal offences. ANALYSIS Fraud

The Law [59] Section 380(1)(

b) of the Criminal Code provides for the offence of fraud: Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act,defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, ... (

b) is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on

summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars. [60] The elements of the offence of fraud that must be proven by the Crown beyond a reasonable doubt are discussed in R. v. Théroux, (SCC), [1993] 2 S.C.R. 5. McLachlin J., for the majority, addressed the components of the actus reus of the offence,at page 15: ... Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan [ (SCC),[1978] 2 S.C.R. 1175]: (

i) the offence has two elements: dishonest act and deprivation; (ii) the dishonest act is established by proof of deceit, falsehood or “other fraudulent means”; (iii) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim,caused by the dishonest act. [61] This part of the analysis engages an objective test, that is, what a reasonable person would consider to be dishonest (Théroux, atpages 16 to 17). [62] Regarding the mens rea component of the analysis, after discussing the nature of subjective and objective tests, at pages 18 and19, McLachlin J. summarized, at page 20: ...

Correspondingly, the mens rea of fraud is established by proof of: 1. subjective knowledge of the prohibited act; and 2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist inknowledge that the victim’s pecuniary interests are put at risk). Where the conduct and knowledge required by these

definitions are established, the accused is guilty whether he actually intended theprohibited consequence or was reckless as to whether it would occur. [63] McLachlin J. noted, at page 18, that in some situations, “subjective awareness of the consequences can be inferred from the actitself, barring some explanation casting doubt on such inference.” Further, at page 17, McLachlin J. reiterated the principle that it wasnot necessary for the accused to have profited by the fraud. [64] After discussing the nature of criminal conduct, McLachlin J. cautioned, at pages 25 to 26: ...To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that the accused practised deceit, lied, orcommitted some other fraudulent act.

Under the third head of the offence it will be necessary to show that the impugned act is onewhich a reasonable person would see as dishonest. Deprivation or the risk of deprivation must then be shown to have occurred as amatter of fact. To establish the mens rea of fraud the Crown must prove that the accused knowingly undertook the acts which constitutethe falsehood, deceit or other fraudulent means, and that the accused was aware that deprivation could result from such conduct. ... The requirement of intentional fraudulent action excludes mere negligent misrepresentation.

It also excludes improvident businessconduct or conduct which is sharp in the sense of taking advantage of a business opportunity to the detriment of someone less astute. The accused must intentionally deceive, lie or commit some other fraudulent act for the offence to be established. ... We are left thenwith deliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk. Suchconduct may be appropriately criminalized, in my view. (Emphasis added.) See also: R. v. Zlatic, (SCC), [1993] 2 S.C.R. 29, at page 43, released with Théroux; and R. v.

McGrath, 2014 NLCA40, 356 Nfld. & P.E.I.R. 252, at paragraphs 5 and 6. [65] The issue of what is required to prove the element of deprivation in a case of fraud is discussed in R. v. Riesberry, 2015 SCC 65,[2015] 3 S.C.R. 1167. Cromwell J., for the Court, wrote:

[22] ... What is required in all cases is proof that there is a sufficient causal connection between the fraudulent act and the victim’s risk of deprivation. In some cases, this causal link may be established by showing that the victim of the fraud acted to his or her detriment as a result of relying on or being induced to act by the accused’s fraudulent conduct. But this is not the only way the causal link may be established. [23] ...

Fraud ... may consist of depriving “a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled” ... . Application of the Law [ 66 ] While the trial judge made passing reference to Zlatic and Olan , for the following reasons, I am satisfied that he erred by failing to apply the principles set out in those cases and in Théroux . [ 67 ] The judge convicted Mr.

Newhook of fraud regarding the trailer and the shed that was stored on the trailer on the basis that their construction was unnecessary because they were surplus to the School District’s needs, and that they had been moved off School District property and were stored on nearby property owned by Mr. Walsh. There was no evidence that either Mr. Newhook or Mr. Walsh had used the trailer or the shed. There was no evidence that the School District had requested that the items be moved back to its property, or that Mr. Walsh or Mr. Newhook refused to comply with such a request. Despite the fact that Mr.

Newhook never used the trailer, the judge inferred that he had taken ownership of the trailer because the item was stored on Mr. Walsh’s property and a trailer licence plate owned by Mr. Newhook had been affixed to and left on the trailer. A police officer gave evidence that people may use a licence plate from one trailer while moving a different trailer. While that may be a Highway Traffic Act offence, it is not a criminal offence. [ 68 ] In the midst of such circumstantial evidence, the judge rejected Mr. Newhook’s explanations.

It is necessary to consider the judge’s rationale in context and in light of the discussion in Théroux . Criminal fraud is of a special nature, requiring deceit, lies or other dishonest conduct, and must be distinguished from poor management or the foundation for civil liability or employment related discipline. [ 69 ] The trial judge opined that it “would have been simpler to build (or buy) a trailer” for the removal of garbage, rather than renting a trailer from Mr. Walsh (decision of the trial judge, at paragraph 12). That statement amounts to the trial judge’s opinion regarding Mr.

Newhook’s management decision. [ 70 ] The judge consistently inferred that Mr. Walsh received preferential treatment because he was a friend of Mr. Newhook. However, in a small community, it would not be unusual for persons doing business to be friends. The judge does not refer to any evidence establishing that Mr. Walsh was chosen for contractual work because of the friendship or that there was another operator that was rejected for improper reasons. There was no evidence of a relevant School District policy. [ 71 ] Again, in rejecting Mr.

Newhook’s evidence, the judge relied on his opinion that construction of the sheds and trailer was unnecessary because they were surplus to the needs of the School District. While the construction of items that may be needed in the future when the employees had time to do the work may or may not have constituted poor management, it does not provide a basis for rejecting Mr. Newhook’s evidence. The fact that the trailer and shed at issue have not, in fact, been used does not alter that conclusion. [ 72 ] The trial judge also referred to circumstances when Mr. Newhook or Mr.

Walsh paid for replacement parts but had the work done by School District employees. His reason for rejecting that evidence is based on what the judge considered to be logical: [16] Further, [Mr. Newhook] said that, when the brakes had been incorrectly connected on his black covered trailer [which was used occasionally for School District work], causing a malfunction in the brakes, he had paid for the replacement parts, and the work had been done by the depot staff.

Logically, if the [School District] was responsible for the repair of the covered trailer, then the [School District] would also have been responsible for the parts required to get the trailer back on the road again. ... [18] [Mr. Newhook] was loaning his own trailers to the [School District], Kevin Walsh was renting a trailer to the [School District], and the [School District] could and did build its own trailer. As the operations manager of the [School District] depot, this was the responsibility of [Mr. Newhook].

When faced with the requirement of covered and open trailers, he could have arranged to build or buy trailers for the [School District]. Instead, he rented a trailer from Walsh, and still had to loan his own trailers to the [School District]. [19] Another problem with the evidence of [Mr. Newhook] is the rental of pickup trucks from Kevin Walsh. The evidence was that the [School District] provided [Mr. Newhook] with a pickup truck with [School District] markings on the door. Despite that, Kevin Walsh rented two pickup trucks to the [School District]. At least one pickup was unsatisfactory.

However, instead of demanding that Walsh supply a pickup truck which met the [School District] requirements, [Mr. Newhook] had the truck modified by school board employees. ... [21] ... It is not the responsibility of the customer to upgrade the rented vehicle, to make it comply with the requirements for which it was rented. On the contrary, it is the responsibility of the supplier to ensure compliance with the requirements of the customer ... . ... [23] Another problem with the evidence of [Mr.

Newhook] is the construction of the three “different” sheds with the overhead garage doors, electrical wiring, insulation, and vinyl siding. While [Mr. Newhook] says that the new shed design was simply a change in the way that the [School District] was building its sheds, the reality is that these sheds were surplus to the requirements of the [School District]. We know that because one of them had spent the past two years sitting on a trailer in the equipment yard operated by Kevin Walsh. The other two sheds have been empty. ... They were not being used because the [School District] did not need them.

They were surplus to the requirements of the [School District].

[73] The reasons the trial judge gave for rejecting Mr. Newhook’s evidence do not withstand scrutiny. Decisions as to how to spendthe employees’ time and the School District’s resources were management decisions made by Mr. Newhook as the operations manager. The fact that the trial judge considered those management decisions to be poor decisions cannot provide a basis for finding criminalconduct. As noted above, there is no evidence that the trailer and shed were used by Mr. Newhook or Mr. Walsh, or that the SchoolDistrict had requested that they be returned to School District property. Indeed, Mr.

Newhook had explained that the trailer had beenmoved off School District property to make room for school buses. [74] While a benefit to Mr. Newhook is not an element of the offence under

section 380 of the Criminal Code, the lack of a personalbenefit, together with proffered explanations, would be a relevant consideration in assessing whether the actus reus and mens rea of thecriminal offence have been proven beyond a reasonable doubt. That is, the criminal requirement for deceit or other dishonest conduct,viewed from the perspective of the reasonable person, must be assessed in the context of all the circumstances, including the lack ofpossible value or benefit to Mr. Newhook.

This consideration is particularly relevant where there was no evidence that the SchoolDistrict was deprived of, or at risk of deprivation of its property. [75] Indeed, whether Mr. Newhook was guilty of fraud, or mismanagement of operations in the School District depot, or neither,involves inferences drawn from circumstantial evidence. The principles that apply where a conviction is based on circumstantialevidence are discussed in R. v. Villaroman, supra. Regarding the drawing of inferences, Cromwell J., for the Court, explained: [35] ...

In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: [citationsomitted]. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and iscontrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect tocircumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other thanguilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. ... [38] ... But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonablycapable of supporting an inference other than that the accused is guilty. ... [41] ... [T]o justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes anyother reasonable alternative ... . (Emphasis added.) [76] In this case, Mr.

Newhook testified with explanations regarding why the sheds and trailer were built and why the items werestored on Mr. Walsh’s property. He also gave explanations regarding the use of his and rented trucks and trailers. There is no evidencethe trailer and shed were ever used by him or Mr. Walsh, or that they were ever intended to be, or that the School District was denied itsproperty, or that there was a risk of denial. As the trial judge stated several times, the trailer and shed were “stored” on Mr. Walsh’sproperty.

The circumstantial evidence, in fact, provides a reasonable inference other than fraudulent intent or guilt. [77] In the result, I am satisfied that the trial judge erred in his application of the law regarding criminal fraud. He failed to assess theevidence against the standard of the actus reus and mens rea required to be proven, as discussed in Théroux. The evidence does notestablish beyond a reasonable doubt deprivation, or the risk of deprivation by the School District, or criminal intent by Mr.

Newhook. [78] Further, I am satisfied that this is a situation in which an acquittal is appropriate pursuant to section 686(2)(

a) of the CriminalCode.

Section 686 provides, in relevant parts:

(1) On the hearing of an appeal against a conviction ..., the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, ...

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (

a) direct a judgment or verdict of acquittal to be entered; or (

b) order a new trial. [79] Considering the evidence as a whole, there is no basis on which a properly instructed jury could enter a verdict of guilty of fraud. In R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, Charron J., for the Court, wrote: [14] ... Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legalerrors in respect of the admissibility of evidence, will usually enter an acquittal. As noted by Doherty J.A. in R. v. Harvey (2001), (ON CA), 160 C.C.C. (3d) 52 (Ont.

C.A.), at para. 30, “[a]n acquittal is the appropriate order because it would be unfairto order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.” ... Breach of Trust The Law

[ 80 ]

Section 122 of the Criminal Code provides for the offence of breach of trust: Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, is guilty of (

a) an indictable offence and liable to imprisonment for a term of not more than five years, or (

b) an offence punishable on

summary conviction. [ 81 ] The elements of the offence of breach of trust are discussed in R. v. Boulanger , 2006 SCC 32 , [2006] 2 S.C.R. 49 . McLachlin C.J.C, for the Court, summarized: [58] I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements: 1. The accused is an official; 2. The accused was acting in connection with the duties of his or her office; 3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the offence; 4.

The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and 5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose. [ 82 ] While the trial judge referred to Boulanger and the above principles, he erred by failing to apply them, the fifth factor in particular.

As set out above in the discussion regarding the offence of fraud, the evidence read as a whole does not support the conclusion that Mr. Newhook’s conduct was such as to amount to criminal breach of trust. There is no evidence that he intended to use his position as the operations manager at the Burin depot for a purpose other than the public good. Whether or not he made poor management decisions does not fall within the scope of conduct covered by the Criminal Code .

SUMMARY [ 83 ] In

summary, the trial judge erred by failing to apply the relevant principles required for a conviction for the offences of fraud and breach of trust. His reasons for rejecting Mr. Newhook’s evidence do not withstand scrutiny when considered in the entire circumstances.

Further, the judge failed to consider the evidence in the context of what the Crown is required to establish in order to prove criminal conduct. [ 84 ] I am satisfied that this is a circumstance in which it is appropriate to enter verdicts of acquittal pursuant to section 686(2) of the Criminal Code . [ 85 ] Accordingly, I would allow the appeal, set aside the decision of the trial judge and direct verdicts of acquittal to be entered. Appeal dismissed (Welsh J.A. dissenting).