2021 QCCA 1382, 2021 QCCA 1382

Okoli c. R. 2021 QCCA 1382 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006982-191 ( 760-01-078206-155 ) MINUTES OF HEARING DATE: September 14, 2021 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. STEPHEN W. HAMILTON, J.A.

APPELLANT COUNSEL Amadi okoli Mtre sevaG abrahamian ( Sevag Abrahamian, avocat ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre janie ferland-frigon ( Director of Criminal and Penal Prosecutions ) By videoconference On appeal from a judgment on the verdict rendered on December 12, 2018 by the Honourable Joey Dubois of the Court of Quebec, Criminal and penal Division , District of Beauharnois . NATURE OF THE APPEAL: Culpability – Fraud. Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 11:53 Commencement of the hearing.

Identification of counsel. 11:55 Submissions by Mtre Abrahamian. 12:10 Submissions by Mtre Ferland-Frigon.

12:20 Recess of the hearing.12:29 Resumption of the hearing. BY THE COURT: Judgment – see page 3.12:30 Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [1] The appellant appeals from a judgment of the Court of Quebec, District of Montreal (the Honourable Judge Joey Dubois),rendered on December 12, 2019, which convicted him on one count of defrauding 9289-2736 Québec Inc. [2] 9289-2736 Québec Inc. is owned by Normand Lalonde, the complainant, a businessman who also owns a hotel.

In October2013, he started the company for the purpose of private lending activities using the hotel’s profits. [3] In December 2013, the appellant and Lalonde met through Lalonde’s trusted real estate agent. The real estate agent was notcalled to testify at trial. Lalonde’s testimony on the discussions that led to the loan to the appellant is, at best, unclear and he did notalways provide straightforward answers to clear questions. At that meeting, he granted the appellant a $20,000 loan at a yearly interestrate of 12%.

A contract was signed. [4] Essentially, the Crown’s theory at trial was that the fraud consisted of a lie or at least a misrepresentation. Lalonde said that theappellant had not revealed his true financial situation and, more specifically, the existing mortgages on his Chateauguay home and otherproperties. He claimed that the appellant had told him that his properties were almost paid for and that he was in the process of sellingthem, which was allegedly a blatant lie.

Lalonde, however, also admitted at trial that the appellant had given him papers that showed amortgage loan on the Chateauguay property, but he had not questioned the appellant’s assets before agreeing to the loan. Nonetheless, hetold the trial judge that he would not have lent the money to the appellant if he had known his true financial situation. Late in 2014, theappellant lost his properties to another creditor and was unable to reimburse the loan. [5] The appellant abandoned the ground of appeal raised in his notice of appeal and now claims the trial judge erred in theapplication of the principles in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, and argues that the reasons for the decision areunintelligible and incapable of proper appellate review. [6] The main difficulty with the decision is not the analysis of the appellant’s testimony, as argued. The Court also agrees with therespondent that the judge correctly identified that credibility was paramount to the case. Again, that is not the difficulty.

The problemwith the trial’s judge decision is the total absence of analysis of the evidence as a whole, that is, the testimony of both the appellant andLalonde as well as the documentary evidence, and how it all relates to reasonable doubt. The judge’s entire decision erroneously focusesonly on the appellant’s testimony. [7] It is true that “[t]he approach set out in W. (D.) is not a sacrosanct formula”: R. v. Boucher, 2005 SCC 72 , [2005] 3S.C.R. 499, para. 29; R. v. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5, paras. 7-9; R. v. Dinardo, 2008 SCC 24 , [2008] 1S.C.R. 788, para. 23; Mukendi Wa Bukole c.

R., 2021 QCCA 1280, par. 81; Secondo c. R., 2019 QCCA 144, para. 3. [8] Still, as Watt, J.A. once wrote, it is also undisputed that “the trial judge's reasons [must] reveal an understanding of therelationship between reasonable doubt and credibility. The failure expressly to articulate the word formula of W. (D.) is not fatal. Whatmust appear, however, from the reasons as a whole, is the trial judge's clear understanding of the relationship between reasonable doubtand the assessment of credibility and its application to the case at hand”: R. v.

Wadforth, 2009 ONCA 716, para. 50; LSJPA — 1521,2015 QCCA 1229, par. 39. [9] The reasons do not make that clear. On the contrary, in the case at hand, reasonable doubt is never mentioned in the decision,which ends with the following conclusory words: “…I believe Mr. Lalonde. I don't believe your testimony …”. A new trial musttherefore be ordered. FOR THESE REASONS, THE COURT: [10] ALLOWS the appeal; [11] QUASHES the finding of guilt at first instance; [12] ORDERS a new trial.

MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. STEPHEN W. HAMILTON, J.A.