R. v. Baker, 2022 NSSC 86

SUPREME COURT OF Nova Scotia Citation: R. v. Baker , 2022 NSSC 86 Date: 20220324 Docket: CRH No. 502139 Registry: Halifax Between: Her Majesty the Queen v. Jessica Jacqueline Baker D E C I S I O N Judge: The Honourable Justice James L. Chipman Heard: March 3 and 4, 2022, in Halifax, Nova Scotia Counsel: Janine Kidd, for the Provincial Crown Quy Linh, for Jessica Jacqueline Baker By the Court (orally): Introduction [ 1 ] Jessica Jacqueline Baker is charged contrary to ss. 380(1) (

a) and 334 (

a) of the Criminal Code , RSC 1985, c C-46 for offences committed between January 25 and March 27, 2018. The Crown alleges that Ms. Baker stole $10,247.00 over this period of time through e-transfers from Gay MacKay’s bank account. [ 2 ] Ms. MacKay was the main witness called at trial. My decision is based on her evidence along with the evidence of the Crown’s other witness, Detective Constable Justin Murphy and the sole exhibit (entered by consent). In the main, exhibit 1 contains the banking records of Ms. MacKay and the accused for the material time. Guiding Principles [ 3 ] Ms.

Baker is presumed innocent of the charges before the Court. This presumption is only displaced if the Crown proves guilt beyond a reasonable doubt. Suspicion of guilt or a belief in probable guilt do not displace the presumption. Only proof beyond a reasonable doubt can establish guilt. The Crown’s onus of proving guilt beyond a reasonable doubt never shifts. [ 4 ] A reasonable doubt is based on reason and common sense which must be logically connected to the evidence or lack of evidence. Suspicion and probability fall far short of the reasonable doubt standard.

Proof beyond a reasonable doubt falls much closer to absolute certainty than it does to a balance of probabilities.

[ 5 ] Ms. Baker did not call evidence and she does not have to prove anything to be found not guilty. The burden always rests on the Crown to prove beyond a reasonable doubt that she committed the essential elements of the offences charged. [ 6 ] This case involves circumstantial evidence which has the same evidentiary value as direct evidence. Reliance on circumstantial evidence does not change the burden of proof. In R. v. Villaroman , 2016 SCC 33 , Justice Cromwell confirmed that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.

In R. v. Acosta , 2021 NSSC 343 , I canvassed R. v. Villaroman and recent treatment of circumstantial evidence at the Ontario Court of Appeal ( R. v. Ali , 2021 ONCA 362 ) and our Court ( R. v. Kennedy , 2021 NSSC 211 at paras. 58 – 62 ). [ 7 ] More recently, the guidance in Villaroman was applied in a fraud context in R. v. Young , 2022 NSSC 58 as well as R. v. Ross and Dawson , 2019 NSSC 275 , at paras. 345 – 347 . Gay MacKay [ 8 ] Ms. MacKay is 55 years of age. At the relevant time she lived nearby the accused in the same apartment building on Portland Street in Dartmouth. The unemployed Ms.

MacKay is a recovered opiate addict and describes herself as suffering from mental illness which (even pre COVID-19) restricts her outside activities. [ 9 ] Upon moving into the accused’s building in 2017 Ms. MacKay and Ms. Baker became friends. They regularly socialized in one or the other’s apartment. This involved talking, listening to music, watching television, drinking coffee, smoking cigarettes and marijuana. Ms. MacKay estimated that she and Ms. Baker remained friendly for close to a year. They ultimately became estranged due to the matters in issue; albeit, even before this Ms. MacKay said that Ms.

Baker, “started ignoring me … freezing me out”. [ 10 ] Ms. MacKay explained that most of her income is derived from an annual military pension or “hardship loan” from her ex- husband. This comes to her via a lump sum deposit (close to $20,000.00) into her savings account, “around the third or fourth week of January”. These funds are used by Ms. MacKay throughout the year to cover her modest necessities, the majority of which is dedicated to her monthly rent (at the time, approximately $800.00). [ 11 ] Ms. MacKay testified that when they were friends, she and Ms.

Baker would routinely loan one another small amounts of money or buy one another milk, coffee and the like. She acknowledged that at one point she owed Ms. Baker $200.00 and they agreed that she would pay Ms. Baker back by way of an e-transfer. Having said this, Ms. MacKay was clear that, “at the time I had no clue about e-transfer or how it worked… I said I would do an e-transfer but I didn’t know technology”. Ms. MacKay stated that Ms. Baker brought up the idea of an e-transfer. [ 12 ] Ms. MacKay testified that she agreed to the suggestion to e-transfer $200.00 to Ms. Baker.

She brought her iPad and debit card to Ms. Baker’s apartment so that her friend could show her how to effect the transfer. Ms. MacKay recalled that this took place during the evening. On cross-examination she said that Ms. Baker’s two children were up “so it wasn’t too, too late”. She recalled that it was dark out. Ms. MacKay said that she and Ms. Baker smoked marijuana and watched music videos. Her next memory is waking up in her own apartment the next morning. She spoke with Ms. Baker who informed her that the e-transfer had been carried out. Ms. MacKay did not check her bank account to confirm this.

She was emphatic that she did not do any further e-transfers to Ms. Baker or anyone. In retrospect, Ms. MacKay believes that she “blacked out” and must have been “drugged” by Ms. Baker at the time of the e-transfer. [ 13 ] Ms. MacKay said that she did not do online banking and only periodically checked her bank balances by phoning her bank. On cross-examination she recalled finding out about money missing from her accounts when, “I went to pay my rent… something triggered it, I found out all my money is gone”. [ 14 ] Ms. MacKay was taken to tab 1 of exhibit 1 during her testimony. This contains Ms.

MacKay’s consent to release her financial records referrable to her two accounts with the Portland Street Scotiabank and the records for three months (January 19 – April 19, 2018). Considerable time was spent reviewing the first of 51 e-transfers, $200.00 initiated and deposited on January 26, 2018. [ 15 ] Based on all of the evidence, I find that the initial e-transfer on January 26, 2018 was the consented to one from Ms. MacKay to Ms. Baker for $200.00.

I say this recognizing that the document (which I consider to be accurate) shows that the e-transfer was initiated at 12:48:44 EST, which would be close to 2 p.m. AST, and not during the evening as testified to by Ms. MacKay. I will have more to say about this discrepancy when I review my credibility and reliability determinations. To be clear, the document makes it abundantly clear that the $200.00 was e-transferred from Ms. MacKay’s Scotiabank account to Ms. Baker’s Bank of Montreal account. [ 16 ] In assessing the reliability and credibility of Ms.

MacKay I am mindful of our Court of Appeal’s direction as recently set out by Justice Bourgeois in R. v. N.F.D.W. , 2021 NSCA 91 at paras. 22 – 29 . At the beginning of her analysis, Justice Bourgeois drew upon Justice Derrick’s

summary of the leading principles in relation to the assessment of credibility: [22] Before looking at the trial judge's credibility assessment and his reasons relating thereto, it is useful to set out the relevant legal principles. In R. v. Stanton , 2021 NSCA 57 , Justice Derrick summarized the leading principles relating to the assessment of credibility at para. 67, notably: • The focus in appellate review "must always be on whether there is reversible error in the trial judge's credibility findings".

Error can be framed as "insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict" (R. v. G.F., 2021 SCC 20 at para. 100 ). • Where the Crown's case is wholly dependent on the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the context of all the rest of the evidence ( R. v. R.W.B. , [1993] B.C.J. No. 758 at para. 28 (C.A.) ). • "Credibility findings are the province of the trial judge and attract significant deference on appeal" ( G.F. at para. 99 ).

Appellate intervention will be rare ( R. v. Dinardo , 2008 SCC 24 at para. 26 ).

• Credibility is a factual determination. A trial judge's findings on credibility are entitled to deference unless palpable and overriding error can be shown ( R. v. Gagnon , 2006 SCC 17 at paras. 10-11 ). • "Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events..." ( Gagnon at para. 20 ). • The exercise of articulating the reasons "for believing a witness and disbelieving another in general or on a particular point ... may not be purely intellectual and may involve factors that are difficult to verbalize ... In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization" ( R. v.

R.E.M ., 2008 SCC 51 at para. 49 ). • A trial judge does not need to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence ( R.E.M. at para. 56 ). • "A trial judge is not required to comment specifically on every inconsistency during his or her analysis". It is enough for the trial judge to consider the inconsistencies and determine if they "affected reliability in any substantial way" ( R. v.

Kishayinew , 2019 SKCA 127 at para. 76 , Tholl J.A. in dissent; upheld 2020 SCC 34 at para. 1 ). • A trial judge should address and explain how they have resolved major inconsistencies in the evidence of material witnesses (R. v. A.M., 2014 ONCA 769 at para. 14 ). [ 17 ] In this case I must test the reliability and credibility of Ms. MacKay in the context of all of the evidence which includes Det. Cst. Murphy’s testimony and to a much greater degree, exhibit 1. I have already touched upon a discrepancy in the time referrable to the first e-transfer.

Nevertheless, when I review the entirety of the evidence, I do not find that this time difference is critical such that it causes me to doubt Ms. MacKay’s overall testimony. In this regard, I have bourne in mind Ms. MacKay’s acknowledgement that she was smoking marijuana. I also accept that she “blacked out” for a period of time. These two factors may well account for the roughly six hour time error. [ 18 ] When I review all of the banking records (tab 1, Ms. MacKay’s for three months in 2018 and tab 3, Ms. Baker’s from January 1 – May 1, 2018) against Ms.

MacKay’s oral evidence, I find that the documents largely square up with her account of how and when in excess of $10,000.00 went missing from her account. To the extent that she is not a perfect historian, I attribute this to Ms. MacKay’s lack of formal education (grade 7) along with her self-described difficulty with numbers and (recently diagnosed) dyslexia. [ 19 ] Overall, I found Ms. MacKay to be a forthright witness who provided her evidence with candour. Upon carefully reviewing exhibit 1 against her testimony, I find that she gave trustworthy evidence that was internally consistent.

I would add that the cross- examination attempts to challenge Ms. MacKay on her age and ability to read military time do not in any way cause me to deviate from my determination that Gay MacKay is a credible and reliable witness. Detective Constable Murphy [ 20 ] Halifax Regional Police Det. Cst. Murphy provided the background to the police investigation leading to Ms. Baker’s arrest on October 24, 2018. He noted that by reviewing the three months of Ms. MacKay’s Scotiabank accounts records and four months of Ms.

Baker’s Bank of Montreal account records, it was determined that 51 e-transfers were attempted and 48 were successful. Det. Cst. Murphy testified that all of the e-transfers went from Ms. MacKay’s account to Ms. Baker’s account. [ 21 ] Upon reviewing Det. Cst. Murphy’s evidence in context with the other evidence, I can unreservedly state that I consider him to be a credible and reliable witness. Exhibit 1 [ 22 ] I carefully reviewed exhibit 1 as against the oral evidence and the Crown’s detailed closing argument. In short, I found the documents entirely buttress the Crown’s submission that Ms.

Baker e-transferred $10,447.00 from Ms. MacKay’s Scotiabank account into her Bank of Montreal account or to pay her bills over the course of the first three months of 2018. As testified to by Det. Cst. Murphy, she made 51 attempts and 48 went through. On the evidence, I find that only the first e-transfer (made on January 26, 2018 for $200.00) was (pre) authorized by Ms. MacKay. I find that each and every one of the subsequent e-transfers (beginning on January 29, 2018 and ending on March 23, 2018) were fraudulently taken by Ms. Baker.

Fraud and Theft [ 23 ] As noted at the outset, the Indictment contains two counts contrary to ss. 380(1) (

a) and 334 (

a) of the Criminal Code . These sections read as follows: 380

(1) 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, (

a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or 334 Except where otherwise provided by law, every one who commits theft

(

a) if the property stolen is a testamentary instrument or the value of what is stolen is more than $5,000, is guilty of (

i) an indictable offence and liable to imprisonment for a term of not more than 10 years … [24] In R. v. Young Justice Gogan extensively reviewed the leading authorities on the elements of fraud at paras. 232 – 242 and Iadopt her helpful outline: [232] The Crown referenced a number of the leading authorities on the offence of fraud. All of these were of assistance. In R. v.

Olan, (SCC), [1978] 2 SCR 1175, the Supreme Court of Canada took the opportunity to provide guidance on the elements ofthe offence of fraud at p. 1182: Courts, for good reason, have been loath to attempt anything in the nature of an exhaustive definition of "defraud" but one may safelysay, upon the authorities, that two elements are essential, "dishonesty" and "deprivation". To succeed, the Crown must establishdishonest deprivation. [233] The Court in Olan concluded that dishonesty of any kind was sufficient and referenced its reasons in two preceding cases at p.1180: In R. v.

Lemire, the accused was charged with having defrauded the public through the submission of fictitious expense accounts. Mr.Justice Martland, writing for the majority of the Court, dealt with the argument that no one was deceived by the expense accountsbecause they did not contain a detailed list of the expenditures as contemplated by the form used in making a claim. He said at pp. 185-186: "Whether or not they deceived the people who saw them, they were the necessary means used to obtain the payments and withoutthem the payments would not have been made. They were fraudulent." See also R. v.

Renard, at p. 358. [234] The reasons in Olan were followed by our Court of Appeal in R. v. Gaetz (1992), (NS CA), 77 C.C.C. (3d) 445(NSCA); aff'd (SCC), [1993] 3 S.C.R. 645. In that case, Gaetz received loans from the bank in order to purchasevehicles for lease. When he sold the leased vehicle, he was to apply the proceeds to the bank loan. Instead, he used the money to keep hisbusiness afloat. He was convicted of fraud and appealed. In denying the appeal, Chipman, J.A., opined at para. 13: The word "defraud" is not defined in the Code.

The use of the words, "other fraudulent means" in s. 380(1) of the Code indicates meanswhich are not just in the nature of falsehood or deceit, but include all other means which can properly be stigmatized as dishonest ...These words import a wider concept than "deceit' and "falsehood". ... The extent to which the courts in Canada have breathed life into s.380 and its predecessor sections can be appreciated from a review of Ewart on Criminal Fraud ... Broadly put, the Criminal Codeprohibits dishonest dealings.

Thus, to paraphrase a classic statement, the categories of fraud are never closed and it is going much to farto say that mere non-disclosure, even of a material fact, can never be fraud. It may or may not be, depending on all the surroundingcircumstances. ... It is the element of dishonesty that is key. Non-disclosure, silence, or concealment may amount to dishonesty. Mensrea, the intentional or reckless state of mind, is, of course, an essential ingredient ... (Citation omitted) [235] In 1993, the Supreme Court of Canada released companion decisions in R. v. Theroux, (SCC), [1993] 2 SCR 5and R. v.

Zlatic, (SCC), [1993] 2 SCR 29. These cases remain the leading statements on fraud in Canada. McLachlin, J.in Theroux, said that the central tenant of fraud is dishonesty and dishonest dealings. She went on to clarify the elements of the offence,beginning with the required act (at pp. 15-17): Since the mens rea of an offence is related to its actus reus, it is helpful to begin the analysis by considering the actus reus of the offenceof fraud. Speaking of the actus reus of this offence, Dickson, J, (as he then was) set out the following principles in Olan: (

i) he 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 thevictim, caused by the dishonest act. Olan marked a broadening of the law of fraud in two respects. First, it overruled previous authority which suggested that deceit was anessential element of the offence.

Instead, it posited the general concept of dishonesty, which might manifest itself in deceit, falsehood, orsome other form of dishonesty. Just as what constitutes a lie or deceitful act for the purpose of the actus reus is judged on the objectivefacts, so the :other fraudulent means" in the third category is determined objectively, by reference to what a reasonable person wouldconsider to be a dishonest act ... By adopting an expansive

interpretation of the offence, the Court established fraud as an offence ofgeneral scope capable of encompassing a wide range of commercial dealings. ... In instances of fraud by deceit or falsehood ...all that need be determined is whether the accused, as a matter of fact, represented that asituation was of a certain character, when, in reality, it was not. [236] The more pressing question in Theroux had to do with the mental element of fraud.

This was determined to be the subjectiveawareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in thesense of depriving another of property or putting that property at risk. This state of mind can be inferred. As McLachlin noted at p. 18: The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in theaccused's mind at the time of the criminal act.

In certain cases, subjective awareness of the consequences can be inferred from the actitself, barring some explanation casting doubt on such an inference. The fact that such an inference is made does not detract from thesubjectivity of the test.

[237] The guidance on the elements of the offence of fraud were summarized at p. 20: These doctrinal observations suggest that the actus reus of the offence of fraud will be established by proof of: 1. he prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk. 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 mayconsist in knowledge 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 consequences or was reckless as to whether or not it would occur. [238] Subsequent decisions have not changed the fundamentals of the analysis.

They are examples of the breath of circumstances thatconstitute criminal fraud. [239] In Zlatic, the diversion of the value of goods sold to gambling instead of debt was held to be fraud by "other fraudulent means".Interestingly, in that case, the entirety of the conduct (taking the goods and gambling away the value), was found to constitute afraudulent scheme which was the actus reus of the offence. Key to this assessment was the objective determination of dishonesty. Therequired mens rea could be inferred and there was nothing in the evidence which negated the natural inference. [240] In R. v.

Leuenberger, 2014 BCCA 156, the court of appeal further considered the required actus reus of fraud and said: [48] The actus reus of fraud is established by proving (1) deceit, falsehood, or other fraudulent means; and (2) deprivation caused bythe prohibited act, whether actual loss or putting the victim's pecuniary interests at risk: Theroux at 20 ... [49] As to the first parts of the actus reus of fraud, falsehood has been defined as a deliberate lie, while deceit is established when anaccused induces a person to believe something that the deceiver knows is false: R. v.

Stephenson, 2006 BCCA at para. 102. [50] As to "other fraudulent means", it is not necessary an accused personally considers his or her means to be honest. Rather,whether the conduct amounts to a fraudulent means is determined objectively, by reference to what a reasonable person would considerto be a dishonest act: R. v. Zlatic, (SCC), [1993] 2 S.C.R. 29 at 45 ... [241] In R. v. DiGiuseppe, 2010 ONCA 91, the accused was convicted of fraud based upon a finding that he had caused his companiesto file false tax and GST returns, actions which "imperilled the public purse".

The conviction was upheld on appeal. [242] More recently, in Nova Scotia, the elements of fraud were considered in R. v. Colpitts, 2018 NSSC 40 (affirmed on appeal at R. v.Potter; R. v. Colpitts, 2020 NSCA 9) and R. v. Ross and Dawson, 2019 NSSC 275 (overturned on sentence only at R. v. Dawson; R..v.Ross, 2021 NSCA 29). Analysis and Disposition [25] Having regard to the evidence and authorities I am of the overwhelming view that Ms. Baker committed fraud and theft in theamount of $10,247.00 (i.e., in excess of $5000.00).

In this regard, I have calculated the amount based on the 47 unauthorized e-transfersover the course of January, February and March, 2018. The evidence causes me to conclude that after befriending her new neighbour in2017, Ms. Baker in early 2018 took advantage of the vulnerable Ms. MacKay. By dishonest act Ms. Baker deprived Ms. MacKay of justover $10,000.00. [26] The amount in question – $10,247.00 – is a very significant sum of money for Ms. MacKay as it represents approximately halfof her annual income. Ms. Baker stole this money fraudulently after gaining Ms. MacKay’s trust. I find that Ms.

Baker stole this moneyafter initially finding out Ms. MacKay’s confidential banking information when Ms. MacKay naively brought her iPad and debit card toMs. Baker. She consented to Ms. Baker transferring the initial $200.00 but also unknowingly provided her with her confidential bankinginformation. Ms. Baker then surreptitiously used this information over a three month period to fraudulently deprive Ms. MacKay of$10,247.00 through 47 unauthorized further e-transfers. [27] In considering this circumstantial evidence, I am mindful of the principles articulated in R. v.

Villaroman as referenced above atparas. 6 and 7. In short, drawing a conclusion of guilt (as I have done) from circumstantial evidence requires that guilt must be the onlyreasonable conclusion permitted by the evidence. While other conclusions can arise from the evidence or from the absence of evidence,those conclusions must be reasonable, based on logic, common sense and human experience. [28] In this case I find beyond a reasonable doubt that the accused intentionally e-transferred in excess of $5,000.00 from Ms.MacKay’s account fraudulently and without colour of right for her own use or benefit.

The direct and circumstantial evidence provesthat Ms. Baker had specific intent to deprive Ms. MacKay of her property (funds in the amount $10,247.00). She used the money for herown use, thus depriving Ms. MacKay of her use of approximately half of her annual income. The funds have not been paid back;accordingly, Ms. MacKay remains $10,247.00 out-of-pocket due to Ms. Baker’s fraudulent and without color of right e-transfers. [29] I have carefully canvassed all the evidence and can find no other inference from the evidence or absence of evidence.

That isto say, there are no other plausible conclusions (based on logic, common sense and human experience) that arise from what transpired. [30] The 47 unauthorized e-transfers from Ms. MacKay’s account were carried out by and for the benefit of Ms. Baker. Ms. Baker

perpetrated this fraud and theft knowing that she was dealing with an unsophisticated individual who did not have the technological wherewithal to monitor her account on a regular basis. [ 31 ] On the basis of the above reasons I find Jessica Jacqueline Baker guilty as charged on both counts. Chipman, J.