R. v. Drake

R. v. Drake Court Supreme Court Date 2022-03-30 Citation 2022 NSSC 91 Docket Halifax, No. 480253 Judge/Registrar/Adjudicator Arnold, Joshua M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Drake, 2022 NSSC 91 Date: 20220330 Docket: Halifax, No. 480253 Registry: Halifax Between: Her Majesty the Queen v. Elizabeth Anne Drake aka Elizabeth Anne Critchley aka Betty Burns TRIAL DECISION Judge: The Honourable Justice Joshua Arnold Heard: February 22, 23, 24, 25, and 28, 2022, in Dartmouth, Nova Scotia Final Written Submissions: March 3, 2022 Counsel: Peter Craig, Q.C., for the Provincial Crown Brad Sarson, for Elizabeth Drake Overview [1] Mary Clark placed an ad on Kijiji for a fridge. Ms. Drake, previously unknown to Ms. Clark, claimed to have a fridge. After Ms. Clark showed interest, Ms. Drake offered several other items at discount prices, claiming they were part of an estate sale. Ms. Clark paid Ms. Drake $8,950 for these goods. Despite many promises in person, over the phone, and via text, she received nothing, and received no refund. For the reasons that follow, Ms. Drake is guilty of fraud. Facts [2] At trial, the Crown called as witnesses RCMP Constable Tracy Longpre and the complainant, Mary Clark. Ms. Drake testified on her own behalf and also called Detective Constable Alex MacAdam. [3] While this is not a battle of credibility, keeping in mind the burden always remains on the Crown to prove their case beyond a reasonable doubt, and keeping in mind the presumption of innocence, the case rises and falls on the testimony of Ms. Clark and Ms. Drake, and a lengthy string of text messages exchanged between them. While there were some basic facts in common during their testimony, many critical details were in dispute. Mary Clark [4] Mary Clark testified that she placed a Kijiji ad on July 15, 2017, looking for a small fridge. On July 16, 2017, she received a responding text, called the number, and spoke to a woman who was later identified as Elizabeth “Betty” Drake. After some discussion about the fridge, Ms. Drake said hers was not the right size, but said that there was an estate sale in the Valley, and that she would look for one there. A few minutes later Ms. Drake called back and said she could get one. Ms. Clark offered $250 for the fridge, and Ms. Drake agreed. [5] Ms. Clark asked if the estate sale had a ride-on lawnmower. Ms. Drake said she would check, and called back a few minutes later confirming that a ride-on lawnmower was available, for $400. Ms. Clark asked her to hold onto it as she was interested. [6] Ms. Clark testified that Ms. Drake then asked her if she smoked, and offered her cigarettes at $600 per box. Ms. Clark said she initially agreed to split one box, owing Ms. Drake $300, and later offered to split a second box at the same price. She said that she did not question the legality of the cigarettes. On cross-examination, Ms. Clark agreed that in July 2017, cigarettes would have cost between $13 and $15 per pack, compared to $3 for those being sold by Ms. Drake. She was adamant, however, that she did not question the legality of the cigarettes. She added that she did not know or care where they came from. [7] Ms. Clark said Ms. Drake offered her alcohol allegedly from the estate, but she said she did not drink. Ms. Clark said on cross-examination that she does drink, but not a lot. [8] Ms. Drake then offered Ms. Clark a camper for $500, and she was interested. [9] Ms. Drake asked for a deposit for the fridge and the cigarettes. Ms. Clark agreed to deliver the deposit to Ms. Drake’s home on July 16, 2017. She said she took $1,000 in cash from her home safe and withdrew $750 from the bank, to pay Ms. Drake. (Exhibit 6 confirms a $750 withdrawal from Ms. Clark’s bank account on July 17, 2017). [10] When they met at Ms. Drake’s home, Ms. Clark paid Ms. Drake $1,750 in cash for the following items: camper ($500), ride-on lawnmower ($400), one full box of cigarettes ($600), and fridge ($250). Ms. Drake said the estate items were being packed onto a truck in the Valley and would be delivered to Halifax on the afternoon of July 17. Ms. Drake later told Ms. Clark that she had “a soft spot for older people” and would give her the fridge, since it was for Ms. Clark’s mother. [11] Ms. Clark said that on July 17 Ms. Drake called and offered her “a sweet deal”, and said they could make some money if she contributed $5,000 to a purchase, though she would not give details on the phone. They agreed not to talk about it on the phone. Ms. Clark said she was being secretive because her husband was within earshot and she wanted to surprise him with the deals she was getting. The defence suggested that Ms. Clark knew they should not to talk on the phone because they were discussing stolen goods. When they met at Ms. Drake’s home, Ms. Drake told her that the deceased whose items comprised the estate sale had won a lottery shortly before he died and had bought furniture. The deceased’s son wanted to get rid of the items quickly and agreed to sell all the estate items for $5,000. If Ms. Clark contributed half ($2,500) they could split the items, which included a washer and a dryer, a 2014 pick-up truck, two sea-doos, two skidoos, a 5th-wheel camper, a 4 x 4, a trailer for the ride-on, furniture such as beds and couches, the fridge, and the stove. Ms. Clark said that although she lumped all of the items she was expecting to receive from Ms. Drake together in her police statement, she never thought the camper and ride-on mower were part of the estate sale. Ms. Drake suggested they split the items in Halifax, and said she was mainly interested in the furniture. Ms. Clark withdrew $2,500 from the bank and returned to Ms. Drake’s home and gave her the money. Exhibit 4 is a record of Ms. Clark’s bank account activity. It confirms a $2,500 withdrawal on July 17, 2017. Ms. Drake now had $4,250 of Ms. Clark’s money, and told her to expect delivery of the items that evening (July 17). [12] When nothing was delivered, Ms. Clark contacted Ms. Drake, who told her that the truck had been pulled over because of improper paperwork relating to the large load, the vehicle had been impounded, and the driver had been fined $500 for driving without a licence. [13] On July 18, Ms. Drake told Ms. Clark that they needed money to get the truck released from impound. She told her that the officer in charge would not be available until the next day. Ms. Drake also said she had a contact at Access Nova Scotia who could help them. On cross-examination, Ms. Clark agreed that she had not mentioned the detail about the officer in charge being off on Tuesday, July 18, until the trial. [14] On July 19, Ms. Drake asked Ms. Clark to lend her $500 to get the truck out of impound. Ms. Clark drove Ms. Drake to New Minas, arriving around noon. They met a man Ms. Drake identified as Harold Marriot in a parking lot near a baseball field and then went to a bank machine where Ms. Clark withdrew $1,000. Exhibits 4 and 6 are bank records that confirm a withdrawal of $1,000 by Ms. Clark on July 19, 2017. Mr. Marriott told Ms. Clark that he had videos of the vehicles from the estate sale to confirm that they were in working order, but the videos would not work. Instead, he showed her still photographs of what Ms. Clark said looked like a junkyard. Ms. Clark had $500 in her pocket, plus the $1,000 she had just withdrawn from the bank machine. She gave Ms. Drake $1,500 to help Mr. Marriott get the vehicle out of impound and to pay other fees associated with the vehicles. Ms. Clark also understood that she was paying for taxes and fees for transfer of title of the pick-up truck and the 5th-wheel camper. Added to the $4,250 she had already given Ms. Drake, Ms. Clark was now into the deal for $5,750. [15] Once they returned to Halifax, Ms. Clark testified, Ms. Drake assured her that they would have the items in a few days. In her police statement, Ms. Clark described a slightly different sequence of events: A. Yeah, we were going up…we were going up to…to go to the motor…we were supposed to go to the motor vehicle branch, right? Q. Okay. Yeah. A. So…but when I got there, there was a gentleman there, now I believe his name was…he was introduced to me as Harry Marriott. Q. Okay. A. Seemed like a nice little fellow, chatted. She got out of the vehicle, we…I got out of the vehicle, we were talking to hm. He said he…he…we said that we were on our way to the motor vehicle branch to get the permits to pay the taxes on the…one of the vehicle in order to get it in my name… Q. Okay. Yeah. A. …to get it legal for the road. All sounded legit. He, in turn, tells her to make she has these permits. She’s on the phone talking to apparently somebody from the motor vehicle branch… Q. Okay. A. …that says, no, all the papers are there, they just…she just needs the payment because this woman apparently was supposed to put half…some of it on her credit card and did not want to get in trouble because she works for the motor vehicle branch, and if she did that, she could fired. I said, Okay, I’m coming up with the money. We’ll pay it. That way, she doesn’t have to freak out. We just want the papers. Q. Okay. A. And we want to go. Q. Yeah. A. So I thought we were going to the motor vehicle branch, and then he offers, goes, No, I’m…I’m going up there anyway. I’ve got to pay the impounding fees, I’ve got to do this. All the papers are ready, I just got to go get the papers. Q. Okay. A. So that’s what we did. Then I took…was nice and I took her to the Chinese buffet. Q. Okay. A. And paid for lunch. Q. Okay. A. So we travel back on home from there, we come on home. I drop her off. [16] Ms. Drake and Ms. Clark stopped to play video gambling machines on their way home from the Valley. Ms. Drake said on direct that Ms. Clark loaned her $150 when they were playing VLTs in the gaming room. On cross-examination Ms. Clark denied this. [17] Later that evening, Ms. Drake contacted Ms. Clark and told her that all of the items had been delivered to Halifax, but she needed $250 to pay for a storage unit at Metro Self Storage in Bayers Lake. Ms. Clark gave her $250 and was now into the deal for $6,000. [18] On July 20, Ms. Drake told Ms. Clark that Mr. Marriott, who had the key to the storage unit, had been arrested driving into Halifax from the Valley. She claimed that there were taxes of $1,350 owing at Access NS, and asked Ms. Clark to pay this amount so that the vehicles could be registered. Ms. Clark said she e-transferred $1,350 to a Cathy (Drake) Harris, who would look after the payment. Exhibits 5 and 6 are bank records confirming the transfer to “Cathy”. [19] Ms. Clark was directed to inconsistencies between her police statement, her preliminary inquiry evidence, and her trial testimony in relation to the sequence of events, the amounts paid, and what each payment was for. With respect to the e-transfer, her police statement was put to her, where she said: Q. You mentioned earlier before, you e-transferred her. When did you e-transfer her? A. Oh, yeah, that’s the e-transfer. Yeah, the e-transfer. There we go. I didn’t e-transfer…it wasn’t her. I trans-…I e-transferred a Cathy, a KC at hotmail.com. I…I e-transferred her $1,350. There we go. Yeah, we…thank you very much for reminding me of that. Yeah. I actually spoke to this Cathy lady. That’s why I wasn’t seeing it, yeah. Q. So what day was that, do you remember? A. When was the…Monday, Tuesday… Q. Or we can get the dates in… A. Yeah, the…yeah, exactly. Exactly. I just… Q. So you emailed her 1,350? A. I emailed her 1,350. It was only supposed to be 1,300, but her bank account was withdrawn (sic) by I believe 40 or $50. But we needed the exact amount of money to transfer to the… [20] Ms. Clark was now into the deal for $7,350. [21] Ms. Drake then told Ms. Clark that she needed $2,500 to pay for Mr. Marriott’s bail, and asked her to help. Ms. Clark initially refused, but Ms. Drake said she would pay her back the next week, after receiving a lump sum of $439,000 from an outstanding lawsuit. Ms. Clark agreed to help, but told her she could only loan her $1,600. She withdrew the money, as confirmed by Exhibit 4, which shows a $1,600 withdrawal from Ms. Clark’s bank account on July 21, 2017. She gave the money to Ms. Drake, who said she was going to the Halifax Provincial Court on Spring Garden Road to pay the bail. Ms. Drake told her that she had to do this on her own, as the person posting the rest of the bail did not want to be identified. Ms. Clark agreed that this detail was first mentioned at trial. [22] Ms. Clark testified at the preliminary inquiry that nothing came up with Mr. Marriott that required her to pay Ms. Drake any money. Ms. Clark explained on cross-examination at trial that she meant that Mr. Marriott never asked her for money directly. [23] Ms. Clark had now given Ms. Drake $8,950. During the preliminary inquiry Ms. Clark estimated that she had given Ms. Drake over $10,000: Q. Okay. Are you able to provide the court with an estimate of the amount of money you provided to Ms. Drake throughout the course of your dealings with her? A. Over $10,000, yeah. Just—just shy over $10,000. [24] Following Ms. Drake’s trip into the courthouse, they waited at Tim Horton’s on Spring Garden Road for two hours for Mr. Marriott to meet them when he was released from jail, when they could get the items out of the storage unit. While they were waiting, Ms. Drake talked about her criminal record and having been in jail. After waiting fruitlessly for two hours, Ms. Clark went home. Later that day, Ms. Drake told her in a phone call that the bail money had been paid too late in the day to secure Mr. Marriott’s release. A heated argument between the two ensued. [25] Ms. Clark said that she had not told her husband about any of the events, as she wanted to surprise him with the new items at such a good price. On July 22 she did a Google search of Ms. Drake and found online confirmation of her criminal history. Ms. Clark called the RCMP. On July 23, she attended the RCMP Detachment in Tantallon and gave an audio statement to Constable Thibodeau, who suggested that she have no further contact or communication with Ms. Drake. Ms. Drake called and texted her that day, but she did not respond. [26] On July 24, Ms. Drake continued to try to contact Ms. Clark, who did communicate with her via text and telephone over the next three weeks. Ms. Clark provided the RCMP with 75 pages of text message screen shots that were entered into evidence. (There were additional text messages between them during this time frame that Ms. Clark did not include, claiming she did not think they were relevant.). During these three weeks, according to Ms. Clark, Ms. Drake was feeding her various scenarios whereby relatives would repay her on behalf of Ms. Drake. At some point, Ms. Clark told Ms. Drake that the police would be involved. [27] On July 24, 2017, Ms. Clark sent Constable Thibodeau an email in which she said that she had already told Rick, her husband, what was going on. Ms. Clark agreed at trial that she had in fact not told him at that time, and did not tell him for about four more weeks because she was nervous. [28] Ms. Clark denied ever sending Ms. Drake a text stating that if she paid her $14,000 she would make the charges go away. She denied trying to threaten her into paying. She also denied believing that the cigarettes were “hot” or stolen. She agreed that she had not told Ms. Drake about the extent of her contact with the police, and instead told her that the police were trying to contact her, hoping to scare Ms. Drake into paying her back. She agreed that she was not truthful when she initially told the police that her husband, Rick, had been aware of her situation. [29] Ms. Clark agreed that she was selective in providing screen shots of the text message exchange between herself and Ms. Drake, and omitted messages she did not feel were relevant. Ms. Clark said that she did not tell Rick about her dealings with Ms. Drake for almost four weeks after their first meeting, so any reference to his being upset in earlier texts was not true. Similarly, she had gone to the police on July 23, so her claim to Ms. Drake via later text was also not true. [30] On cross-examination Ms. Clark agreed that Constable Thibodeau told her not to have any contact with Ms. Drake, but she ignored that advice and had protracted text and telephone conversations with her. She agreed that she was imprecise in her original police statement regarding dates and amounts. The amounts she testified she had paid were different than what she originally told the police. Ms. Clark explained that this all occurred four-and-a-half years earlier, and it was only when preparing for trial that she carefully reviewed her bank statements, although the bank records had been available to her during the intervening years. When the defence pointed out that Ms. Clark’s explanation of when each conversation occurred was different at trial than in her police statement, she said that when she went to the police she was an emotional wreck, and she was not asked to be precise in the way expected of her in court. [31] Her audio statement to the police was played in court and her demeanor as exhibited by her voice sounded similar to her in-court testimony. She did not sound emotional or upset. [32] Although Ms. Clark’s police statement was given on July 23, 2017, she denied that her memory would have been better then than at trial, some four-and-a-half years later. That sort of comment is always a red flag regarding credibility. [33] With regard to some of the other inconsistencies explored during cross-examination, in Ms. Clark’s police statement she said: A. That’s where Jordan’s is. So she…so we were talking, she said, Listen, we can get everything in that house for…for five…for five grand. So if you come up with 25, I can come up with 25. That way, we will get everything. He’ll…you’ll get the truck, the camper, the two…the two Skidoos, the two Sea-Doos, the four-by-four, and the ride-on, which I had already paid for the night before. [Emphasis added] [34] Ms. Clark denied that she used the word “you’ll” and said she had used the word “we’ll”. When the audio recording of the statement was played in court it was clear that she had said “you’ll”, consistent with the transcript, and therefore her recollection in this regard was wrong. [35] Ms. Clark told the police that she never gave Ms. Drake an ultimatum to pay her back. She also told the police, and testified at trial, that she had received a receipt for the fridge but ripped it up and threw it away. However at the preliminary inquiry Ms. Clark said she had received that receipt via text. [36] There were 75 pages of texts. While Ms. Drake is not fully functionally literate, she was able to read and respond to Ms. Clark’s texts without difficulty. Some of the more relevant texts are the following: Sunday, July 23, 2:06 PM (Betty) What are you not talking to me Monday, July 24, 2:27 AM (Mary Clark) The ad I put so innocently looking for a fridge for my elderly parents that turned into $9000 dollars and still no 2014 dodge Dakota no fifth wheel no ride on lawn mower no cigarettes no ski dos no sea dos no four wheeler etc. might be the reason. Oh and no free fridge for my mother!! Just might have me a tad pissed off. I thought you were a nice person. You had me in your home I met your grand babies. I treated you with respect and was kind to everyone one. Even helped you bail out herald marriott if that is who he is!!! Or if he was even in jail!!! I trusted you. In turn you took my kindness for weakness. Thank you but I don’t want Sammy to call I’m not interested of being involved with your group of associates. I highly doubt your 439. Thousand dollar law suit payout is any more than more lies. I told you I’m not about money I just wanted what I thought I purchased. Its bad enough I have to explain to rick tomorrow how I was so foolishly cheated out of our savings. Please just go away. You have done enough damage to my life. Go get help!! Do something good for your grandchildren before they are a product of what they see and hear. Please do not call or contact me. Monday, July 24, 8:41 AM (Betty) I nover lyed to you about anything at all and i can prove it If you what this right youll need to call me if not. It all stops. But i nover. Cheated you. Can have what yours. Ill not call or tex you no more it up to you if you can. By a grown up and talk to me o and i to thourg you are a nice person Monday, July 24, 2:46 PM (Betty) I got news can ill call in ten mim Monday, July 24, 4:12 PM (Mary Clark) K Undated (Betty) Can you call me back If you what this over call me I canbe over in 2 hours Thursday, July 27, 10:22 AM (Betty) Can you call me Thursday, July 27, 1:49 PM (Mary Clark) Here is hoping tomorrow is a good day. When you go to the bank please get them to issue a certified cheque. You can send it to me courier. Just mark it saying for things not received. Rick is not sure if he can ever forgive me ((. Think I’m going to take time away as I get he now don’t trust me ((( (Betty) Ok and sorry he feel like that (Mary Clark) I know maybe time away will fix things (Betty) Im praying it well (Mary Clark) Yeah me too Friday, July 28, 12:58 PM Hi. Did you manage to get things done today ) (Betty) Doing thing now ill call in about 1 hour or as soon as im free had to fix my id Last name (Mary Clark) Ok))) … Saturday, July 29, 4:56 PM (Betty) I told you wood get your money so why are you giving out my phone number and people calling malking thrut Sunday, July 30, 10:31 AM (Mary Clark) Good morning what are you talking about didn’t give your number your text just came through have very little reception who called you … Monday, July 31, 5:57 PM (Mary Clark) Guess nothing is coming by courier (Betty) Yes ill call in 10 (Mary Clark) Ok … Tuesday, August 1, 8:12 PM (Mary Clark) Where r u I only have until 10 pm to receive the tracking code as for my repayment of items not received. You said you sent it and we should have been priority in you sending me the mail tracking paper this morning. I’ve been very patient and kind and as of tonight if we don’t have confirmation we will have no choice but seek the help of police. As you know this will be treated as grand theft and I will not back down from pressing charges. 9500. Was all our savings. This is not a threat I’m actually trying to be understanding as you have grandchildren that you care for and need guidance. I hope your true to your word and the repayment is in the mail. If not then it’s out of my hands of tomorrow morning (Betty) I told you i was not home yet and thet is a thread i cant do anything untell im hone on can so (Mary Clark) I’m trying to keep rick from taking me to police. He don’t believe you sent it. (Betty) Ill call in bit … Wednesday, August 2, 12:31 PM (Mary Clark) What’s up (Betty) Ten mim ill call back (Mary Clark) Just send me tracking number I’m trying to go away and can’t leave until you send me the number. You give me that piece of shits number I don’t give a rats ass who he is Send me the number and don’t call anymore This is grand theft if your not wanting to leave your grandchildren by going to jail this is a federal crime as m sure your aware that not a little prison time. Last time please send me the correct number. (Betty) So is baying. Hut smokes Do not threaten her again I said i wood send it and i did (Mary Clark) Well I might be concerned but I didn’t get them so stupid to say what’s gonna happen to me nothing I got no stolen smokes. What are you talking about No threat Who said don’t threaten her again??? You and herald and Cathy are the ones breaking the law!!! (Betty) Can you stop for a bit im trying to get it sent (Mary Clark) Hi what time can we meet Tomorrow and where. (Betty) Myill call her in ten at fhome making arament Give me 20 mim Ill call back in bit As soon as she get back to me ok … Tuesday, August 8, 11:22AM (Mary Clark) See you at tims for 1 just getting in shower have errands to run (Betty) Her meeting at her bank is at 1 then she coming to get me ill tex you when she pick me up (Mary Clark) Ok well I will be in Bedford )) close by anyways (Betty) Oky (Mary Clark) Will just meet at tims. Just left my house ran late (Betty) Ok nover heard from her yet (Mary Clark) K Tuesday, August 8, 1:34 PM (Betty) Call me plese Wednesday, August 9, 4:18 PM (Mary Clark) Any word from your aunt. Did she get to the bank. (Betty) Ill know is 30 mim all tex said was at q2 (Mary Clark) This waiting around is holding me up grrrr. Wish she had of went to the bank first thing this morning (Betty) It was the bank not her (Mary Clark) She message you yet (Betty) Her. Husdon is call me back in tem (Mary Clark) Ok Wednesday, August 9, 9:15 PM (Betty) She git it but. Us not geting out off qu2 untell 10 in morring i got to be a f hone at 1230. She is goi g to be there ill tex after and meet you ok Ill not have this phone no more tonight untell 12 tonight so pleses do not tex back Mike has it ok sorry. It took so long to. Get uou (Mary Clark) Ok) Thursday, August 10, 3:29 PM (Mary Clark) I’m almost afraid to ask why I didn’t get the 5g from your aunt today This has consumed by life for a long time. Just want it over Thursday, August 10, 6:39 PM (Mary Clark) Where you be (Betty) Stell atmy sister i got a mag from dee but cant spell it out (Mary Clark) Ok not home will message you when I am Friday, August 11, 12:12 PM (Betty) She said later on today Around supper shell be out and can do it (Mary Clark) Hey sounds great ) Friday, August 11, 4:53 PM (Mary Clark) Any word on dee im heading to the city from country shortly (Betty) Ill know by 530 she stell whatting to get out offqu she just whatting for dr to sing (Mary Clark) Oh ok (Betty) Call if you can ill tell what happon Saturday, August 12, 12:29 PM (Mary Clark) What’s going on (Betty) Do not know untell. Around 1 or 130 (Mary Clark) Ok Saturday, August 12, 3:33 PM (Mary Clark) Any news Saturday, August 12, 3:33 PM (Mary Clark) Any news (Betty) Yes illtalk to you in 20 Ok (Mary Clark) K Monday, August 14, 7:25 PM (Mary Clark) I’m home what time can I meet you and dee tomorrow? (Betty) Ill call in morringaround (Mary Clark) ?? (Betty) My phone fuck ill call at 10 in morring Tuesday, August 15, 10:46 AM (Mary Clark) Hey what’s the plan with your aunt I’m in town now (Betty) She calling me at 1130 ill call you then Ok (Mary Clark) Ok Tuesday, August 15, 12:13 PM (Betty) She at her bNk then coming to get me ill call as soon as she calls (Mary Clark) Ok great I’m still in town (Betty) Ok … Tuesday, August 15, 2:09 PM (Mary Clark) Here from her yet (Betty) Im trying to call her now (Mary Clark) When she calls you will have to meet close to city ok Police called they want me to return there call. I can’t stall them so unless something happens quick to get this money I can’t continue to with this trying to get this resolved I don’t know what to tell you … Wednesday, August 16, 1:11 PM (Mary Clark) Almost afraid to ask what time your meeting me. (Betty) Whating to hear fro her Wednesday, August 16, 4:33 PM (Mary Clark) Guess it’s not looking good ((( (Betty) Whatting to see dad Thursday, August 17, 4:51 PM (Mary Clark) How did things go with your dad? (Betty) With him now Talking (Mary Clark) Ok Thursday, August 17, 6:23 PM (Betty) Ill call you in 30 (Mary Clark) Ok Friday, August 18, 1:45 PM (Betty) On phone with dad. Give me ten (Mary Clark) Oh no problem figured you on **message is cut off and does not continue to next page** Monday, August 21, 6:59 PM (Mary Clark) Hey any word from you dad on when he is helping you. I have company so I can call … Sunday, August 27, 7:25 PM (Mary Clark) I’m home can’t talk on phone so what’s the plan for tomorrow?? If we have to go get him that’s an option to take him to get this done. Rick said he isn’t waiting anymore after tomorrow and I understand his frustration I hope you do too (Betty) I do but my dad got to do thing in his way hell call me by 1o in morring ill know a time then (Mary Clark) Great [all texts as appear in originals] [37] At the conclusion of cross-examination, defence counsel put a number of questions to Ms. Clark in keeping with the Browne v. Dunn rule, including that there was in fact no agreement for Ms. Drake to sell her a fridge; and that Mr. Marriott offered to sell her stolen property, including stolen cigarettes: Q. Generally, I’m going to suggest to you that your dealings with Ms. Drake that week were quite different than you described them, and I’m gonna start with the initial proposition. I’m going to suggest to you that there was never any agreement for Ms. Drake to sell you a fridge. Do you agree with me or disagree with me? A. Disagree. Q. I’m going to suggest to you that you went to Ms. Drake’s residence the night of Sunday, July the 16th, to inquire about a fridge, but that the fridge that Ms. Drake knew about that was for sale up the road, didn’t suit your needs and so, therefore, there was no purchase of any fridge. Do you agree with me or disagree with me? A. Disagree. … Q. So, I’m going to suggest to you, Ms. Clark, that you went to Ms. Drake’s residence on the night of July 16th, 2017, to inquire about a fridge and that the fridge that Ms. Drake knew of that was for sale up the road didn’t suit your needs or your purposes so that there was never any agreement to purchase a fridge. Do you agree with me or disagree with me? A. I disagree. Q. I’m going to suggest to you that you did spend some time talking to Ms. Drake, as you described – sort of down behind her stairs having cigarettes or smoking cigarettes. I’m going to suggest to you that Harold Marriott never made an appearance in person at Ms. Drake’s residence that night. Do you agree with me or disagree with me? A. I disagree. Q. I am going to suggest to you that during your time visiting with Ms. Drake that evening, Sunday, July 16, 2017, that Mr. Marriott called Ms. Drake, or she called him, and there was a conversation between Ms. Drake and Mr. Marriott that was on Ms. Drake’s speakerphone while she was in your company. Do you agree with me or disagree with me? A. Totally disagree. Q. I’m going to further suggest to you that, during the course of the conversation between Mr. Marriott and Ms. Drake, the issue of the availability of some, what I’ll refer to as illegal cigarettes came up and that Mr. Marriott made it known that he knew someone who had some illegal cigarettes for purchase. Do you agree with me or disagree with me? A. Disagree. Q. I’m going to further suggest to you that you had interest in purchasing some of these illegal cigarettes and so there was an agreement that you would give Ms. Drake some money to go towards the purchase of illegal cigarettes. Do you agree with me or disagree with me? A. I’m going to disagree with you. Q. Now I’m going to suggest to you that during that course of that same conversation between Mr. Marriott and Ms. Drake, Mr. Marriott made it known that he some stolen property that was available for sale… A. Not at all. Disagree. Q. …and I’m going to suggest to you that you expressed interest in buying some of this stolen property. Do you agree with me or disagree with me? A. Disagree. Q. I’m going to suggest to you, Ms. Clark, that the only money you gave Ms. Drake was something in the range of between $4,000-5,000 and that money consisted of money to purchase illegal cigarettes and some…a little bit of money that you loaned her when you went gambling on the way back from the Valley on July 19th, 2017. Do you agree with me or disagree with me? A. Totally disagree with you. Q. I’m going to suggest to you that there was never any reference to an estate sale by Ms. Drake and there was never any offer on her part for you to purchase any items. Do you agree with me…other than the cigarettes, sorry. Do you agree with me or disagree with me? A. I disagree with you. [38] Counsel went on to suggest that Ms. Clark in fact had no expectation of items being delivered on the week of July 17, 2017, and that the trip to the Valley was in fact for the purpose of meeting Harold Marriott as part of a purchase of stolen goods: Q. I’m gonna suggest to you that there were no items that were going to be delivered from the Valley, you had no expectation the items being delivered from the Valley on the Monday or Tuesday of that week – July 17th or 18th of 2017. A. Are you saying I had no expectation? Q. Correct, right. A. I totally disagree with you. Q. I’m gonna suggest to you that the purpose of the trip to the Valley on Wednesday, July 19th, 2017, was for you to meet Harold Marriott and to give him some money to go towards the purchase of stolen items. Do you agree with me or disagree with me? A. Disagree. Q. I’m going to suggest to you that, in fact, you met Mr. Marriott not in New Minas at the TD ATM, but at a softball or baseball field in Kentville. Do you agree with me or disagree with me? A. I disagree with you. I met him on Commercial Street, so wherever that…if it’s New Minas…it was on Commercial Street. Q. When you talked about…about meeting him in a parking lot near a ballfield, but I’m…that’s…that was your evidence, I think… A. The ballfield is…is in the park. It’s a parking lot ballfield. Parking lot – ballfield – TD. One little block, right here, right in this little box. You pull in, you see the ballfield. Q. I’m suggesting to you that there is no ballfield in New Minas next to the TD ATM. Do you agree with me or disagree with me? A. I disagree with you. Q. So, going back to my initial suggestion of when you arrived in the Valley, I’m going to suggest that you go up to this ballfield in Kentville and that’s where you meet Mr. Marriott that morning. Agree with me or disagree with me? A. I agree with you. Q. Okay, but in Kentville, sorry, is part of the suggestion. A. In the TD parking lot, where the bank is, in his car. That’s where I initially was introduced to him by name. Q. I’m gonna suggest to you that the bank, TD bank in Kentville, is not near any ballfield. It’s…it’s sort of downtown Kentville in the business part of town and so there was no ballfield near this bank when you initially met Mr. Marriot. Do you agree with me or disagree with me? A. I’m trying to explain to you what I saw was a parking lot, a tree, and what I believed to be…have been a fence with a ballfield. Did I see the ball diamond? No, I didn’t. I saw blank fields. Nothing in beside this bank, this little…this little ATM store, on Commercial Street, in the parking lot. That’s all I saw. Q. I’m gonna further suggest to you that when you met Mr. Marriott in this parking lot next to the ballfield, you gave him $500 cash. Do you agree with me or disagree with me? A. Disagree with you. I didn’t hand it to him, if that’s what you’re asking me. Q. I’m going to further suggest to you that you then took Ms. Drake to lunch at the Chinese buffet in New Minas and that sometime around the time you were having lunch, Mr. Marriott made contact and advised you that he needed some more money for the goods you were looking to purchase from him or through him. Do you agree with me or disagree with me? A. Disagree with you. Q. I’m going to suggest to you that you then met Mr. Marriott for a second time that day at the TD bank machine in New Minas where you withdrew a thousand dollars and gave that to Mr. Marriott. Do you agree with me or disagree with me? A. Disagree. Q. With respect to the e-transfer to Cathy Harris, I’m going to suggest to you that e-transfer was to a woman by the name of Cathy Drake, although she may have told you it was Cathy Harris. Do you have any knowledge of a Cathy Drake? A. No idea who she is. Never met her. Q. But I’m going to suggest to you that the e-transfer to Cathy Harris, a person…identified as Cathy Harris, was not to go towards the taxes on one of the vehicles you were supposed to be getting. That was more money that was to go to Harold Marriott to purchase more items, stolen items, through Mr. Marriott. Do you agree with me or disagree with me? A. Disagree with you. Q. I’m going to further suggest to you that you didn’t give any money to Ms. Drake on Wednesday, July the 19th, in the Valley, or on Friday…Thursday or Friday, I guess, July 20th and 21st, 2017. Do you agree with me or disagree with me? A. I disagree with you. Q. I’m gonna suggest to you that Ms. Drake never told you Mr. Marriott was in jail and never asked you for $1,600, or any amount of money, to go towards bail for Mr. Marriott. Do you agree with me or disagree with me? A. I totally disagree with you. Disagree. [39] Counsel went on to raise the question of whether Ms. Clark had demanded money from Ms. Drake: Q. You agree with me that you, um, that Ms. Drake did not give you something in the range of $14,000? A. No. Q. Okay, and you agree with me you would have no basis to request or demand that she pay you $14,000? A. No. Q. I’m gonna suggest to you that you sent Ms. Drake a text after you didn’t get any cigarettes and Mr. Marriott was in the wind with your money and didn’t…you didn’t get any items, and you made a demand of Ms. Drake that she had to pay you $14,000 to make this go away or she would be in big trouble or something to that effect. Agree with me or disagree with me? A. I’d like to see the text because I disagree with you. Q. I’m gonna suggest to you that the reference in Exhibit #1, the texts, to you requesting that “piece of shit’s number” and then saying “I don’t care who he is”… A. Yeah. Q. …was you demanding Harold Marriott’s number because you wanted to be able to reach him to get the money or the goods that you’d given money for and that’s why you wanted Harold Marriott’s phone number in that text. Do you agree with me or disagree with me? A. I totally agree with you. I wanted his number. I wanted his number…pardon me, so let’s go back, repeat your question…I don’t want to get myself out of whack here. Q. Right, so my suggestion is that you wanted Harold Marriott’s number because you wanted to contact him to either demand that he return the money you had given him or demand that he provide you with the goods that he was supposed to provide you with in exchange the money you had already given him. Do you agree with me or disagree with me? A. I disagree with you. I wanted his number because I was told by Betty Drake that the money that she had given him, he now had my money. He had that money. I was angry. I wanted…I wanted answers. I want my items. I wanted my money. Q. I’m gonna suggest to you that the reason you didn’t given the police all of it, the texts that were exchanged between you and Ms. Drake, was because some of those texts included you demanding Ms. Drake pay you $14,000. Do you agree with me or disagree with me? A. Disagree with you. I’d like to see the text if you have it. Q. I’m going to suggest to you, Ms. Clark, that the only money that Ms. Drake received from you was money that was given to her for your share of the purchase of illegal cigarettes and some money you loaned her when you went gambling. Do you agree with me or disagree with me? A. Disagree with you. Q. I’m going to suggest to you that any other money that you withdrew and paid out was paid out to Harold Marriott in exchange for stolen property that Harold Marriott offered you for sale. Do you agree with me or disagree with me? A. Disagree with you. Q. I’m gonna suggest to you, Ms. Clark, that the reason you didn’t want to tell your husband what was going on was because you were buying stolen property and you saw an opportunity to make some money and you didn’t want your husband to know about this. Do you agree with me or disagree with me? A. Definitely disagree with you. [40] Counsel further directed Ms. Clark to certain notes she had made, which were in evidence: Q. So, Ms. Clark, very close to the end here – at least for my questions. I do want to refer your attention, again, to Exhibit #8. Exhibit #8 was the colour photograph of the notes you had made, there are four…four pieces of paper together. … A. Yup. Q. So, on that front page, or I think the front page, where it says, “posted ad July 15, 2017” in red… A. Correct. Q. …you’ll notice that on Wednesday, July 19th, there’s a note in green: “$500 loan, $1,000 motor vehicles” and then what looks to be the word “Kentville” … A. Correct. Q. …written in green and then “New Minas” written in black over top of “Kentville”. A. Correct. Q. And why is “New Minas” written over top of “Kentville”? A. To be honest with you, when I was going through my banking information, I wasn’t familiar with where the banks were located, so I…I called my bank to find out exactly what TD I had retrieved this money from, and I found out that it was Commercial Street. And I believe that is situated in New Minas. Q. Just a couple more things I’m going to suggest to you. You said that the little gambling place…the little place where you stopped and did some gambling was about 45 minutes from New Minas, towards Halifax? A. I can’t swear to that. I don’t recall the distance and the time that it took to get us to where we were going. We were talking, there was conversations along the way and off we go off a sideroad to get to this…this unit. It was nothing out of the ordinary…nothing out of the ordinary. Q. So, if I were to suggest to you that you went to…to Ben Jackson Road at Exit 8A on the way back from New Minas towards Halifax, you wouldn’t be able to disagree with that really? A. You would have to ask Betty Drake where that was. I have no idea and I can’t agree to it because I don’t know where I was. Q. Okay, I’m gonna suggest that the, uh, this place you stopped and did a little bit of gambling was about 10 or 15 minutes from New Minas and not 45 minutes towards Halifax. A. Again, 4 ½ years ago, don’t recall how long it took me to get there. That’s the best of my recollection. Q. Okay and just to…to get back a point, which I think you’ve already covered off, you’d indicated that you had withdrawn $300… A. Correct. Q. …when you went to do some gambling. I’m going to suggest to you that you split that money with Ms. Drake and gave her…loaned her half that money. Do you agree with me or disagree with me? A. I disagree with you. I can add that to what I feel that she owes me. Q. I’m gonna suggest to you that when, the night you met Ms. Drake at her residence and you were down sort of in behind having a smoke and having a chat, I’m going to suggest to you that you told Ms. Drake that you had just lost your job and you could use some money. Agree with me or disagree with me? A. Disagree with you. [41] Finally, counsel raised the suggestion that Ms. Clark had recruited others to help get her money back: Q. And, finally, I think it was put to you by Mr. Craig on direct examination, I stand to be corrected, I think you were asked whether you had ever given Ms. Drake’s phone number to anyone or asked anyone else to call her on your behalf. Is that something you recall from yesterday, or no? A. I believe I recall that. Q. Okay. I’m going to suggest to you that you gave Ms. Drake’s phone number to Caroline MacNamara and to Verna-Lee Martin… A. Not true. Q. …and requested or knew that they were going to call her on your behalf in an effort to get your money back… A. Not true. Q. …agree with me or disagree? A. Disagree. … Q. And you deny giving Ms. Drake’s phone number to anyone? A. I did not give it to Caroline MacNamara. I did give it to Verna-Lee. Q. Okay, so, I guess the second part of that was I’m gonna suggest to you that you either knew or requested that Verna-Lee call Ms. Drake and try and pressure her or threaten her into giving you back your money you felt she owed you. Do you agree with me or disagree with me? A. No, I did not. No, I did not. [42] The Crown suggested that the rule in Browne v Dunn was violated, following the testimony of Ms. Drake. Subsequently, the following admissions were tendered by the parties in accordance with s. 655 of the Criminal Code: The Accused makes the admissions herein following her testimony and pursuant to the Browne v. Dunn rule, and explicitly acknowledges that the following evidentiary points from her testimony were not put to Mary Clark when Ms. Clark testified: 1. That the Accused felt she owed Ms. Clark between $3000 - $4000, and that the Accused offered to pay $5000 to settle the amount owed, but Ms. Clark refused to accept any payment because she wanted the full amount of $9000 which she believed she was owed by the Accused – MS. CLARK DENIES SHE WAS EVER OFFERED THE SUM OF $5000 TO SETTLE THE AMOUNT OF MONEY OWED TO HER BY THE ACCUSED, AND SHE ALSO DENIES THAT SHE EVER REFUSED A PAYMENT OF $5000; 2. That the Accused specifically told Ms. Clark that her “sponsor” Dee refused to give the Accused the full amount of $9000 to pay Ms. Clark, and that Ms. Clark persisted in telling the Accused to get this this full amount from Dee (who wasn’t her aunt); -- MS. CLARK DENIES THAT SHE WAS EVER TOLD THIS BY THE ACCUSED, AND ACCORDINGLY, MS. CLARK NEVER RESPONDED IN THIS FASHION; 3. That Ms. Clark spoke to Dee -- MS. CLARK DENIES THAT THIS EVER OCCURRED; 4. That the Accused told Ms. Clark that the cigarettes she was purchasing were stolen from a CN Rail train; -- MS. CLARK DENIES THAT THIS EVER OCCURRED; 5. That when the Accused told Ms. Clark that the 4-wheeler she was buying was stolen, Ms. Clark responded something to the effect, “It’s OK, it’s going to be used in the country and nobody will see the serial numbers” -- MS. CLARK DENIES THAT SHE WAS EVER TOLD THIS BY THE ACCUSED, AND ACCORDINGLY, MS. CLARK NEVER RESPONDED IN THIS FASHION 6. That Ms. Clark gave Harold Marriott directly the sum of $1500 to obtain fake paperwork from Harold Reeves’ junk yard on Wed. July 19; -- MS. CLARK DENIES THAT THIS EVER OCCURRED; 7. That the Accused accompanied Ms. Clark to an unidentified Courthouse to check on a lien -- MS. CLARK DENIES THAT THIS EVER OCCURRED; and 8. That Ms. Clark said to the Accused, “I hear your father is a very nice man. Call your father” -- MS. CLARK DENIES THAT THIS EVER OCCURRED. Elizabeth Drake [43] Ms. Drake lives in Lower Sackville with her daughter and grandchildren. She has a grade three education and she is not fully functionally literate. Ms. Drake has 77 prior convictions, all mainly for crimes of dishonesty, 58 of them for fraud. Her last conviction was in 2014. She also pled guilty to a separate charge of fraud on the first day of this trial. [44] Ms. Drake agreed that she was involved in a deal that went south with Ms. Clark, but disagreed with the majority of the details. Her testimony was sprinkled with some things that were accurate, and despite the presumption of innocence, her testimony mainly appeared to be an elaborate work of fiction. [45] Ms. Drake said that her daughter, Kayla, posted the original ad on Kijiji, and Ms. Clark called about it. She said that there was no agreement on the phone to sell Ms. Clark a fridge for $250, and that no money was discussed during that call. She also said she never discussed an estate sale at any time with Ms. Clark. Significantly, in her July 24 text, Ms. Clark said she had posted an ad looking for a fridge for her parents. Ms. Drake never asserted otherwise in the subsequent exchange of texts. [46] Ms. Drake said that after they spoke on the phone, Ms. Clark came to her home the following evening. While Ms. Clark was there, her brother-in-law Harold Marriott phoned. Ms. Drake said she put him on speakerphone and he offered them cigarettes. Ms. Clark said she wanted some. Ms. Drake admitted that in the past Mr. Marriott had been “her partner in crime”, but she “broke ties with him” after her dealings with Ms. Clark. She added that she now doesn’t speak to him “much”, although her husband is still in contact with him, and said he lives in the Valley. She said she told Ms. Clark that the cigarettes had been stolen from a CN Via Rail train, and Ms. Clark gave her $600 that night for the cigarettes. Mr. Marriott said he had other items for sale, including four-wheelers. According to Ms. Drake, Ms. Clark jumped at the opportunity to buy a four-wheeler, and said she wanted more items. Ms. Clark said that she would be using the vehicles in the country so she was not worried about bad serial numbers. Ms. Drake said that there was no discussion that evening about a ride-on mower. She said that the items were supposed to be delivered by Mr. Marriott in a truck. She denied that Ms. Clark gave her $2,500 the next day. [47] Ms. Drake said they went to the Valley the following Wednesday so that Ms. Clark could meet Mr. Marriott. She said Ms. Clark directly gave him $1,500, for false paperwork being created to match some items coming from a junkyard. They then went to a Chinese buffet in New Minas. Mr. Marriott called and said he needed more money, so they went to an ATM in New Minas and Ms. Clark withdrew more cash. On their way home they stopped to play VLTs, and Ms. Clark loaned Ms. Drake $150. [48] Ms. Drake testified that the next day she and Ms. Clark went for a drive, during which Mr. Marriott called and said he had skidoos and other items for sale. [49] Ms. Clark agreed to transfer $1,350 to Cathy Harris for Mr. Marriott to pay impound fees, taxes owing on vehicles, and fees related to the Registry of Motor Vehicles. Ms. Clark e-transferred $1,350 to Cathy Harris, who in turn was supposed to give the cash to Ms. Drake and Ms. Drake would give it to Mr. Marriott. [50] Ms. Drake mentioned that they went to the Valley so that Ms. Clark could pay Mr. Marriott and sort out the paperwork. She denied that she and Ms. Clark ever discussed impound fees, taxes owing on vehicles, or went to the Registry of Motor Vehicles/Access NS. She denied telling Ms. Clark that the officer in charge of the seized vehicle was off work on Tuesday. [51] Ms. Drake said she never called Ms. Clark angrily claiming that Mr. Marriott had been arrested and needed bail money. She denied that Ms. Clark ever lent her $1,600 for Mr. Marriott’s bail. Ms. Drake said that she and Ms. Clark did attend a courthouse to check on a lien, but said that was their only visit to a courthouse. [52] Ms. Drake said she did tell Ms. Clark that she had a criminal record and had been in jail, but denied this conversation occurred at Tim Horton’s on Spring Garden Road. She said it occurred at her house. [53] Ms. Drake said that by the end of the first week she realized that Ms. Clark was not going to receive any items through Mr. Marriott, and offered to pay her back $3,000-$5,000, as she felt responsible for connecting them. She said her Gambling Anonymous sponsor, Dee, had agreed to lend her $5,000 to pay Ms. Clark back, which she said was half of what Mr. Marriott had taken from her. However, Ms. Clark refused to accept anything less than full repayment. A couple of days later, Ms. Clark informed her that she had gone to the police, started making threats, and texted that if Mr. Marriott gave her $14,000, she would make it “go away”. [54] Ms. Drake admitted exchanging many texts with Ms. Clark. She said Exhibit 1 was not a complete record, initially claiming that at least three important texts were missing. However, she could only provide details for two texts: 1) The text where Ms. Clark said “Give me $14,000 if you want this all to go away”; and 2) “I heard your father is a very nice man. I know he’s got that kind of money. Call your father”. [55] Ms. Drake denied ever mentioning a $439,000 lawsuit to Ms. Clark. She denied selling a fridge to Ms. Clark and denied writing a receipt. She denied discussing a storage unit with Ms. Clark or taking $250 toward a storage unit. She denied receiving $8,950 from Ms. Clark. She denied any conversation with her about bail and denied receiving $1,600 for Mr. Marriott’s bail. [56] Ms. Drake said that she received threats from Carolyn McNamara and Verna Lee Martin on behalf of Ms. Clark. [57] Ms. Drake said that around that time a police officer called to tell her not to have any contact with three named persons, including Ms. Clark. She said she showed Ms. Clark’s threatening text to Detective Constable Alan MacAdam, and to a retired police officer named Donnie, who was her landlord. Ms. Drake said that the last time she initiated contact with Ms. Clark was in July, and that Det. Cst. MacAdam told her not to have any further contact with Ms. Clark, so she blocked her from calling or texting her phone. [58] On cross-examination the Crown directed Ms. Drake to her statement given to Constable Longpre on October 5, 2017. Ms. Drake did not dispute voluntariness, and made no other Charter complaints at trial. Throughout the statement Ms. Drake said she had spoken to her lawyer and wanted to remain silent, though Cst. Longpre continued to gently question her. Ms. Drake was questioned about three alleged crimes, one of which related to Ms. Clark. While she did not say much in response to the police questions, the exchanges included the following: Q. No, no. I have…I have receipts signed by you, as well. And I’m also investigating Mary Clark, where she had put an ad on Kijiji looking for a fridge, and then you contacted her and said you had one, it was down in the Valley. And then you subsequently sold her other items, like a ride-on lawnmower and a truck. A. I have proof otherwise but that’s okay. … A. It’s a whole different thing with the second one there, for the fridge. Q. Mary Clark? A. Yeah. I have a whole bunch of proof on that.… … A. Again, I have a whole lot of proof to my case. As far as Mary goes, I can show that to you. It’s on my phone… … Q. …I have all your text messages. I have 72 pages…not Tanya, Mary Clark, I have 72 pages of text messages. A. You have the ones that she texted me? Q. Yeah. I have screenshots of the phone with all the messages. A. Because she tried to blackmail me. Q. I didn’t see blackmail in there. A. I have it on my phone. Q. I…what I read, I didn’t perceive as blackmail. I understand she wants her money back and… A. It’s not as much as she’s saying, but okay. Q. And this is where you come in. If you want to tell me your side of the story, I’m completely willing to listen to it. Like that’s why I’m here. I’m willing to listen to your story… A. Sorry. Q. …if you’d like to talk to me. A. Well, Chris Manning advised me not to say nothing until I could take what I have in to him. [59] Ms. Drake went on to expand on her dealings with Ms. Clark to Cst. Longpre: A. …As far as the Mary matter, it’s definitely not what she says. She did give me some money to buy her some cigarettes, I have proof of that. She did try to blackmail me for more. She’s still calling me, and I’ve asked her to stop, up until last week. I got texts, I can prove that. When you go… Q. What about…what about the fridge? Why did you contact her about a fridge then (inaudible – talkover)? A. I did have a fridge for sale but it wasn’t the one that was at my house. Q. No. A. No. Q. Because that one…the…the original one…I’m under the impression, the original one was a double fridge, and it wasn’t big enough, so then you said there was one in the Valley or something. A. No, I said that I knew somebody up the road who had one. Q. Okay. And that was the size that… A. And she came over and we were talking, we hit it off. We knew a whole lot of the same people. She was from the same area. Well, she was from the pubs, I grew up in Fairview, but I went to the school down there. Q. So I…so I’m not from Halifax. I don’t know the slang… A. Pubs is Bayers Road… Q. Okay. A. …area, Fairview is just up above this…St. Andrew’s School was right there where she…in between, kind of. Q. Okay. A. So we just hit it off. I had mentioned cigarettes and it just went from there. Q. Okay. A. It just went from there. Q. So there was never any sales of anything else? A. No. No. And I can prove it was cigarettes, on my phone. Q. Well, I…I know about the cigarettes. I know you guys were splitting…sharing on a carton of cigarettes, but then there was… A. I… Q. Like they were 600 a box, like you were spending to… A. I think…no, it was a little more than that. Q. You can tell me about it. I’m not…I’m not…I’m not here to judge you, Elizabeth. Q. I’m going to be judged. These guys come in and throw accusations and because of my rep-…when…to my knowledge, when you go and make a report to the police, aren’t you supposed to leave it up to the police? Are you still supposed to contact this person and…and say, Give me more money and I’ll drop it? Is…is that not black mail? Q. Well, my understanding is she wanted the money that she paid you. She wanted you to refund her her money. A. She wanted me to refund money that she gave somebody else as well, too, and she…the money has tripled. Q. Is that over text messages or phone calls? A. Both. I have text messages where she’s trying to get more money out of me. Q. Okay. And I…if you provide those to your lawyer…because I understand you don’t want to provide… A. I’ll show you the stuff on Mary. You give me my phone. I’ll show you them. … Q. That…what was why. And…but I…I do see you’re upset and I would love to be able to forward what you had to say, too, but… A. No, I’m going to leave this up to my lawyer. Q. Okay. And that…that’s… A. And you know, that’s not disrespectful to you. It’s not. Q. I…I don’t take any disrespect. I…you…I understand, you want to listen to your lawyer and take your lawyer’s advise and not… [60] When she gave her statement on October 5, 2017, then, Ms. Drake said that she had proof of a threatening text message on her phone, which she said was in working order. She initially testified at trial that she did not know whether she deleted these messages, or lost them when she switched to a new service provider. She testified that after she showed the texts to Det. Cst. MacAdam, she kept them for another week or two, then changed service providers and got rid of the phone. Despite her earlier evidence that she could not recall what happened to the phone containing the texts exchanged with Ms. Clark, at the conclusion of her testimony she said she had remembered on the overnight break during her cross-examination: she now remembered changing service providers and getting a new phone. She claimed that her daughter and her daughter’s boyfriend stole and sold the old phone. Ms. Drake said that she changed service providers around September 30, 2017. It was pointed out on cross-examination that September 30 was prior to October 5, and on October 5 she said she still had the text messages. [61] Ms. Drake testified that when she told Constable Longpre that there were no sales of anything except cigarettes, she was not being truthful, because she did not want to “rat” Mr. Marriott out since he was her “partner in crime” and her brother-in-law. While Ms. Drake’s right to silence allowed her not to answer police questioning, there is no constitutionally-protected right to lie. [62] Ms. Drake said that she knew the cigarettes she was offering to Ms. Clark were illegal and that she had no problem selling illegal items. [63] Ms. Drake told Constable Longpre that she had initially mentioned cigarettes to Ms. Clark. She testified, however, that it was Mr. Marriott who had first mentioned cigarettes, via speakerphone the first evening Ms. Clark went to her house. She said her testimony was accurate, not her statement. [64] Ms. Drake did not deny certain allegations made by Ms. Clark via text, in contrast to her testimony at trial. Regarding her failure to correct Ms. Clark about the fridge, lawnmower and other items via text, Ms. Drake testified: Mr. Craig: …I want to ask you some questions about this. First of all, when you respond that very morning, on Monday, July 4th, you don’t dispute with Mary Clark that it was her that put in the ad, so, looking for a fridge. You don’t correct that when you respond, right? Ms. Drake: No, I did it in person. Q. You didn’t…you didn’t correct that, and you didn’t correct that the fridge was for her elderly parents? A. No. Q. Right? And then when she says that that turned into $9,000, you didn’t correct that figure? A. I did on the phone with her. We…we were speaking on the phone off-and-on as well. Q. Nothing in the texts? A. No. Q. Nothing in the texts and she used the figure $9,000 and you heard the calculation we went through with her testimony that the amount was $8,950 she claimed that she gave you. Right? You heard that? A. I heard that. Q. Okay. Then she goes on to say “and still no Dodge Dakota, no Fifth Wheel, no ride-on lawnmower. You don’t correct that? A. Not in a text. Q. No. You’re saying this happened in a conversation with her. Are you? Is that what you’re saying now? A. Our family had conversations as well, in between. I…I can’t remember every detail of that month. Q. Okay. A. I…I told you what happened and that…that’s… Q. Did you have a telephone conversation with Ms. Clark…Are you saying now that you had a telephone conversation in between these texts that I’m reviewing with you now? A. I’m assuming I did. I…I just…I can’t remember. I just… Q. You can’t remember… A. No, I focused on that one week and alls can I have time to read everything and have my…I…I can’t answer. Q. Okay, you can’t specifically recall? A. No. Q. If I say it to you this way: you can’t specifically recall a conversation that you had between…to be fair to you, Ms. Drake, you can’t recall any specific telephone conversation you had with Ms. Clark in between these text messages I’m reviewing with you right now? A. No. Q. Okay, thank you. So, you don’t correct her on the text in relation to the Dodge Dakota, the Fifth Wheel, or the ride-on mower? There is reference of cigarettes there, but you don’t correct her in relation to the Skidoos, Sea-doos, four-wheelers, etcetera? Right? You didn’t correct her? A. Not in a text, no. Q. You never said anything to the effect, “look, Mary, that’s not what we were dealing with, you got it all wrong”? You never said anything like that to her by way of text? A. Not by way of text, no. Q. Okay and, Ms. Drake, it goes on to the next page. You…she mentions, “and no free fridge for my mother”. Now, you will recall Ms. Clark’s testimony, Ms. Drake. She, I think, paid you something of a compliment and she said you were prepared, although she had given you $250 for the fridge, she was…you were prepared to give her that fridge because you had a soft spot for elderly people, or something to that effect. A. I never had that conversation with her. Q. Okay, you never had that conversation. A. No. Q. But you do nothing to correct in the text messaging any of these references here? To the fridge? A. We had had phone conversations over this stuff. I may not have been texting it because I was scared Harold would get me in trouble or something, texting. I don’t text very well. I don’t know. I don’t know. I don’t know. … Q. …I’m just going to repeat the question, Ms. Drake. All I asked you, ma’am, was whether or not, in the text messages we’re seeing here, we’re looking at, you had corrected or commented in any way on Ms. Clark’s reference about the free fridge for her mother. A. Not at that time, no I did not. Q. Okay and you can’t recall, if I understand what you’re saying, any specific conversation you would have had with Ms. Clark in between these very text messages we’re reviewing now? A. No, all I can recall is I’ve had a few conversations, but as…when and what? No. Q. And then if you…can you flip over to the next page, Ms. Drake? And there you see what she wrote to you in text, where she says: “Even helped you bail out Harold Marriott, if that is who he was…who he is or if he was even in jail”. You received that, right? … Q. So, my question to you is you…you saw that email from Ms. Clark and you didn’t correct any of that information in the text when you replied to her later on Monday, July 24th? A. I wasn’t responding at that time, no. Q. Okay, I…I don’t know exactly what you mean when you say, “I didn’t respond,” but you didn’t correct that… A. No… Q. …when you did respond on Monday, July 24, at 8:41? A. I said, “I never lied to you about anything and I can prove that” is that what you mean? Q. Ms. Drake…I asked you if you made any correction or told, said anything to Ms. Clark specifically that, “What do you…what do you mean? What’s this business about Harold Marriott?” That didn’t happen. Did you do anything like that by way of text? A. I can’t recall. Not that I know of here, but I don’t understand why I wouldn’t’ve. Q. Okay and, again, you had no conversation with her correcting that information in between these texts, right? A. Pardon me? Q. You had no telephone conversation with her in between these texts? A. I had conversations, but I can’t tell you exactly when or what was said. Q. Okay, you can’t specifically recall? A. No. Q. Alright, thank you. Can you turn over to the next page? Do you see that? And Ms. Clark writes you and says, “I highly doubt your $439,000 lawsuit payout is anymore than more lies”. ‘K? You saw that, right? A. Yup. Q. When you reply to her later, at about 8:41 on July 24, you never said anything correcting that or anything to the effect, “I never said anything to you about $439,000 lawsuit”? A. Yes, I did have a phone conversation with her… … Q. So, I’ll…I’ll ask you, I think, what essentially was the same question about all this other content, Ms. Drake. So, what I’ve asked you, you see there on that page where Ms. Clark references “your $439,000 lawsuit payout”, you see that, right? A. Yes. Q. Okay, when you responded to this text at 8:41 on July 24, which was a Monday, you said nothing to correct any of that detail about the $439,000 lawsuit payout? A. I had a phone conversation with her because I never said I had a $439,000 lawsuit. I don’t even know who the Sammy is – which is the Sammy name there – and I did tell her I had some money coming but it was not a lawsuit. Q. Okay, ma’am, the question was: in the text, you didn’t say anything to correct that, did you? A. On the…not in a text… Q. And again, I’ll ask the same question, Ms. Drake. Do you remember any specific conversation you had with Ms. Clark in between that text of hers we’re looking at now and your response to it at 8:41 on Monday, July 24th? A. No, I can’t give you a time of the phone call. Q. Okay, alright, but you do respond at…on July 24 at 8:41, right? Can you see where that is? Just a couple pages past where we were just looking, ma’am. A. ‘K. Q. And you say something to the effect, it begins: “I… … Q. Alright. Ms. Drake, do you see your response there on Monday, July 24? And I’m gonna read this to you and you tell me if this captures what you meant, but the spelling is as it appears in the original. I hope that’s sufficient for the record, My Lord, thank you. “I never lied to you about anything at all and I can prove it.” Do you see that? A. I see it. Q. And that’s your writing, you responded in that way? A. I guess, yeah. [65] Ms. Drake did not correct Ms. Clark via text regarding the free fridge for her elderly mother, bailing out Mr. Marriott, or the $439,000 lawsuit. Ms. Drake said that Dee is Donna, her Gambling Anonymous sponsor, not her aunt. Although Ms. Drake said she offered Ms. Clark $5,000, she suggested no reason why she thought Ms. Clark would agree to this offer. She was also questioned at trial about the discussion of sending Ms. Clark a cheque: Mr. Craig: So, my question to you first is did you receive this text, which is dated Tuesday, August 1, 8:12 p.m.? Ms. Drake: I don’t remember it but if it’s on my phone I could have received it and not, just not read it. Q. Okay, so you can’t even recall if you received it or read it? A. No. Q. Alright, fair enough. But you see it goes on, I think, for a few pages…pages there, right? She’s…I won’t read it all in detail, but she discusses the tracking code and that’s for the courier cheque I suggested to you she was still expecting. Do you…were you guys still discussing that as of August 1? A. There’s no text here saying I sent her anything in the mail, er, track…send her anything for a tracking number. She refused the $5,000. I was still working on Dee. Dee refused to give the $9,000. That was the end of it…she wasn’t giving it to me. Harold was not dealing…working with me…I…not likely to. Q. Okay. I guess I’ll…I might have to read this on...it starts, “Where are you?” then it goes, “I only have until 10 p.m. to receive the tracking code as for my repayment of items not received”. You said you sent it: “And we should have been priority in you sending me the mail tracking paper this morning,” so I’ll just stop right there. Ms. Drake, she seems to be suggesting that you told her that you had sent the cheque and she was looking for the tracking number for the courier. A. I definitely did not. Q. You’re denying that? A. Yeah, denying telling her I sent her any cheque ‘cause I never got no cheque. Q. Okay, so do you remember getting this text now because just a few seconds ago you couldn’t recall even if you had received it or read it? A. One text? I can’t guarantee I read all these texts. I didn’t even read them at home, so…I actually have texts nowadays that come in I don’t read them all, so...I…I understand what you’re asking and I see what it says and I don’t know why I didn’t respond. I just, I just don’t know. Q. Well, maybe you did. We’ll come to that. But she’s claiming you…you told her you sent it: “ we should have been priority in you sending me the tracking paper this morning,” she goes on that she’s been patient and been kind and on the next page she says she might have to seek the help of the police, said it may be treated as grand theft and she won’t back down from pressing charges, then she says, “9,500, this was all our savings”. ‘K, so we’re in the ballpark of the other figures – 85…8,950…9,000…9,500…right around there. “This is not a threat. I’m actually trying to be understanding as you have grandchildren that you care for and need guidance. I hope you’re true to your word and the repayment is in the mail”. So based…I’m going to suggest to you, Ms. Drake, that based on her discussions and texting and communication with you, Ms. Clark is still expecting to be paid by you. I’m just suggesting that. Do you agree with it or not? A. And I’m telling you that I offered her 5,000 – that’s what I could get. I didn’t owe the rest. I’ve given her many opportunities to call Harold to deal with him. I tried to resolve my part in it. She didn’t want to take it, there’s nothing I could do. A couple of phone conversations were threatening. She sent me a text asking for 14,000. I wasn’t getting that from either my father or… … Q. …based upon the communications she was having with Ms. Clark at the time, it would seem Ms. Clark was still expecting to be paid the amount, roughly $9,000…$9,500 – I’m not focusing too much on the figure – and that that was going to be couriered to her by cheque. So, my question to you is, do you agree or disagree with that? A. I agree that’s what it looks like I’m reading, yes. I don’t agree that I was part of that. Q. Okay, I’ll just continue the rest of Ms. Clark’s test…text: “If it’s not then it’s out of my…if not then it’s out of my hands of tomorrow morning”. Then you do respond, ma’am. And you say, again you don’t correct any of that detail, I suggest to you, Ms. Drake but, what you say, “I told you I was not home yet and that is a threat. I can’t do anything until I’m home on can so.” Alright, so you did respond to that. Do you see that? What I just read to you? A. Yup. I also responded before that and told her I wasn’t home, so then she got a text after a while stating: “I told you I wasn’t home”. So, we had a conversation on the phone. Q. Okay. “I told you I was not home yet and that is a threat. I can’t do any…” You didn’t correct and of the detail in her previous text? A. No. [66] Ms. Drake said that despite the text messages requesting a tracking number for the promised cheque, Ms. Clark did not agree to accept $5,000, and Ms. Drake did not dispute via text her promise to send a tracking number. She did not agree during her testimony that she had promised to send a cheque or provide a tracking number. [67] Ms. Drake said that at times during her texting she was using the term “tracking number” as code for stolen items. Q. And, further, if I suggested to you that, at this point, right up until August 5, you’re still telling Ms. Clark that you’re making arrangements with your aunt to get the money that Ms. Clark was owed from you and that was gonna be forwarded by way of cheque with a courier and a tracking number to accompany it. Do you agree or disagree with that? A. I disagree with a lot of that, and I agree with some of that, so not sure how to answer that. Q. Well, what part do you agree with? A. I agree that I was still trying to come up with the money to give her, but I don’t agree with anything about a tracking number. … A. Again, like I said, last night I started remembering some things and I do remember a conversation that Mary and I had had at one point where she wasn’t mentioning stolen stuff, and neither was I, over the cells. She didn’t want Rick to read it or find it. And I, as well, didn’t want people to see it at my house. So, I’m believing at this point we were using “tracking number” as a reference to not say “stolen stuff” or “hot stuff” in that case. Q. Oh. A. So…tracking number…I’ve never had Mary’s address to send anything. Q. Okay, now, so you’re claiming now, I want to make sure I get you right, Ms. Drake, that the references in the text to tracking number, that’s a kind of code you had agreed to with Ms. Clark? A. It’s kind of a thing we came up with. She didn’t Rick to…to know anything. Q. Okay and when did you do that? A. I just remember a conversation we had. At what point, I don’t remember. Q. Okay. A. I had too much going on that month. Q. Yeah, but it said…now that…tracking number reference doesn’t appear anywhere in these texts we’re looking at right now, right? You don’t see that? A. No, I don’t. Q. Okay and you did agree that, at this point in time, you were still telling Ms. Clark that you were trying to make arrangements to get her her money? A. Yeah. Q. I think you said you agreed with that part of my suggestion. A. Again…I was trying to come up with what I felt I owed, which was $5,000. I don’t deny ever thinking owe her that. I don’t deny trying to pay that. [68] Ms. Drake agreed that between August 2 and 27 she was “stalling”, “lying”, “stringing…along” and “just playing” Ms. Clark regarding returning her money because she did not want her going to the police. [69] In addition to telling Ms. Clark that she was expecting to receive money from Dee and/or her aunt, Ms. Drake also agreed that she told her she was trying to get the money from her father, which was untrue. [70] Ms. Drake’s evidence was also unclear on the origin of the cigarettes. The following exchange occurred on her cross-examination: Mr. Craig: …but I thought, in response to Mr. Sarson’s question to you, that you said what had come off the CN Rail car were the cigarettes. Ms. Drake: Oh, yes, I did. You’re right, yes. Q. Okay, so what you just said was wrong altogether. A. Not wrong, maybe confused, but not wrong. Q. ‘Cause just like sixty seconds ago you were claiming that all the property that Mr. Marriott had was comin’ from a CN Rail car. That’s what I… A. No. … Q. But you claimed that you told Ms. Clark that the cigarettes were coming from a CN Rail car? A. I believe so, yes. Q. You believe so. A. Mmhmm Q. Is that…are you clear, certain on that, or are you guessing? A. I’m saying yes. Q. Okay. She never received any cigarettes from you and/or Mr. Marriott, right? A. No. [71] Ms. Drake said she did not mention Mr. Marriott to the police, or subpoena him to court, because she was scared of repercussions from him. However, she had no qualms about blaming him for everything during the trial. Detective Constable Alex MacAdam [72] Detective Constable MacAdam is a twenty-two year veteran of the Halifax Regional Police and is currently assigned as a homicide detective. He is familiar with Ms. Drake and said that around 2018, Ms. Drake showed him a lengthy back and forth text conversation with someone named Mary. He could not recall the telephone number. He recalled looking briefly at these texts and recalled that Mary was accusing Ms. Drake of defrauding her. He remembered one text in particular that said something to the effect of, “Hey, you’ve been charged. If you give me some money, a quantity of money, a large sum of money, I will make the charges go away.” He said he recalled the figure of $14,000 being mentioned. He said that the texts from Ms. Drake were misspelled, while Mary’s texts were more grammatically correct, with better spelling. Ms. Drake wanted Det. Cst. MacAdam to make a record of the texts, or allow her to send him some of the texts. Because this was not his jurisdiction, he said, he told her not to send him the texts, but to contact the RCMP to make a complaint regarding a possible charge of extortion. He told her she could expect to have her phone seized and downloaded by the RCMP investigators if she did so. No evidence was provided at trial regarding whether Ms. Drake ever went to the RCMP regarding an extortion complaint. Reasonable Doubt [73] Ms. Drake is presumed to be innocent and Crown must prove all essential elements of fraud beyond a reasonable doubt in order for that presumption to be displaced. Section 11(d) of the Canadian Charter of Rights and Freedoms provides that a person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Speaking for the majority in R. v. Lifchus, [1997] 3 S.C.R. 320, Cory J., for the majority, summarized the principles of reasonable doubt, as they should be put to a jury: 36 ... It should be explained that: ∙ the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; ∙ the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; ∙ a reasonable doubt is not a doubt based upon sympathy or prejudice; ∙ rather, it is based upon reason and common sense; ∙ it is logically connected to the evidence or absence of evidence; ∙ it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and ∙ more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit. [74] In R. v. Starr, 2000 SCC 40, Iaccobuci J. stated for the majority that “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities” (para. 242). Mere probability of guilt is never enough in a criminal matter. The Crown must prove the guilt of an accused person, in this case Elizabeth Drake, beyond a reasonable doubt, which lies somewhere between probability and absolute certainty, but closer to absolute certainty. Credibility and reliability [75] In this case, I have to decide if I am satisfied beyond a reasonable doubt that the Crown has proven Ms. Drake defrauded Ms. Clark. This will require consideration of the credibility of witnesses. The great majority of that analysis will focus on Ms. Clark and Ms. Drake. In Faryna v. Chorny, [1952] 2 D.L.R. 354, the majority of the British Columbia Court of Appeal discussed credibility as follows, at p. 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions... [39] In Baker v. Aboud, 2017 NSSC 42, Forgeron J. summarized the principles governing credibility assessment (some citations omitted): [13] Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault, 2009 NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 100, which guidelines include the following: • Credibility assessment is not a science. It is not always possible 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:" R. c. Gagnon, 2006 SCC 17 (S.C.C.), para.20. … "[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:" R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. • There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety…On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence… • Demeanor is not a good indicator of credibility… • Questions which should be addressed when assessing credibility include: a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the documentary evidence, and the testimony of other witnesses… b) Did the witness have an interest in the outcome or were they personally connected to either party; c) Did the witness have a motive to deceive; d) Did the witness have the ability to observe the factual matters about which they testified; e) Did the witness have a sufficient power of recollection to provide the court with an accurate account; f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions… g) Was there an internal consistency and logical flow to the evidence; h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant or biased; and i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [40] The majority in Lifchus acknowledged that “certain doubts, although reasonable, are simply incapable of articulation” and emphasized that a “juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanor cannot be taken into consideration in the assessment of credibility” (para. 29). [41] A related principle to credibility is reliability. In this case, the defence questions the reliability and credibility of Ms. Clark. The Crown questions the credibility of Ms. Drake and the reliability of Detective Constable MacAdam. The relationship between the two concepts was explained in Cameco Corporation v. The Queen, 2018 TCC 195, affirmed, 2020 FCA 112, leave to appeal refused, [2020] S.C.C.A. No. 342: [11] The reliability of a witness refers to the ability of the witness to recount facts accurately. If a witness is credible, reliability addresses the kinds of things that can cause even an honest witness to be mistaken. A finding that the evidence of a witness is not reliable goes to the weight to be accorded to that evidence. Reliability may be affected by any number of factors, including the passage of time. In R. v. Norman, [1993] O.J. No. 2802 (QL), 68 O.A.C. 22, the Ontario Court of Appeal explained the importance of reliability as follows at paragraph 47: . . . The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount. . . . [42] There were some inconsistencies between Ms. Clark’s statement to the police, her testimony at the preliminary inquiry, and her trial testimony. There were also discrepancies between her trial testimony and the text messages between her and Ms. Drake, as well as the defence evidence, including the testimony of Detective Constable MacAdam regarding the alleged threatening text requesting $14,000. [76] Ms. Drake’s testimony conflicted significantly with the text messages, and, of course, with the testimony of Ms. Clark. Ms. Drake’s text messages, and her responses (and omissions to respond to) Ms. Clark’s texts, in combination with her testimony in court, lead me to reject much of her trial testimony. R. v. W.(D.) [77] Elizabeth Drake testified, and called Det. Cst. MacAdam to testify on her behalf. The Crown tendered her statement to Constable Longpre and the text message conversations between her and Ms. Clark. In R. v. W.(D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, Cory J., for the majority, instructed triers of fact on how to apply the burden of proof where evidence has been led on behalf of the accused. Noting that the “trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses” (para. 27), he set out the following question for the trier of fact, at para. 28: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused... [78] In R. v. Dinardo, [2008] 1 S.C.R. 788, Charron J., for the court, commented on the application of the W.(D.) analysis: 23. The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context... What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt... [79] In R. v. Hogg, 2013 PECA 11, reversed, 2014 SCC 18, McQuaid J.A., in dissent but adopted by the Supreme Court of Canada, warned against falling into a trap of disbelieving the evidence of the accused and therefore ending the analysis and finding guilt. He said variously on this point: [128] By testifying, the appellant placed his credibility in issue, particularly because there were no witnesses to the alleged offence, and his story was diametrically opposed to that of the complainant. Again, to keep the burden on the Crown and not to place the appellant in the position of disproving the evidence of the complainant, it is important for a trial judge to not simply choose between the evidence of the appellant and the complainant in the sense that if he disbelieved the appellant that was the end of the trial and a conviction was to be entered. … [131] In R. v. Edwards 2012 ONSC 3373; [2012] O.J. No. 2596 (Ont. S.C.), Code J. explained that at the conclusion of a trial where the accused person has testified, the trial judge is left with three possible conclusions or choices. I find his explanation of these choices helpful in understanding how to apply the burden of proof in a criminal case where the accused person has given evidence. … [136] Code J. explained that the first and second choices I have referred to above ‑ complete acceptance of the accused's evidence and complete rejection of the accused's evidence ‑ represent steps 1 and 3 of the instruction in W.D. Step 2 in the instruction addresses the situation where the trial judge reaches the conclusion there is a conflict in the evidence which the trial judge is unable to resolve. … [138] In R. v. Edwards, Code J. addressed this issue and termed it a misconception in the application of W.D. to treat the second step in W.D. as a sequential step which the trial judge must address. At para.17 Code J. states: [17] The misconception in this approach to W.D., with respect, is that it treats the three jury instructions set out in that case in brief summary form by Cory J. as if they were sequential analytical steps that a trier of fact must always pass through before reaching a verdict. This is not an accurate reading of W.D. … [140] Code J. explains that when a trial judge rejects the exculpatory evidence of an accused, the trial judge does not have to use that evidence as a basis for finding reasonable doubt. Logically it would be difficult for a trial judge to reason that he or she has been left with a reasonable doubt on the basis of evidence which is completely rejected. At para.20 Code J. explains: [20] Accordingly, the so‑called "second branch" of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an "alternative" to complete belief or complete rejection and arises where a trier cannot "resolve the conflicting evidence" and cannot find "exactly where the truth of the matter lay", as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not "able to select one version in preference to the other", as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completely rejected Edwards' account and completely accepted T.B.'s account. In other words, he was able to resolve the conflict in the evidence and he was not left in a state of uncertainty. By stating definitively, "I disbelieve the defendant", the trial judge could not have been left in reasonable doubt by that testimony. (My emphasis) [Emphasis in original] [80] I must undertake the W.(D.) analysis in this case, and even if I reject the evidence of Ms. Drake, I cannot use that rejection as support for her conviction. The Crown must prove their case beyond a reasonable doubt. Fraud [81] In R. v. Olan, [1978] 2 S.C.R. 1175, Dickson J. (as he then was), for the court, set out the essential elements of fraud (at pp. 1182-1183): Courts, for good reason, have been loath to attempt anything in the nature of an exhaustive definition of “defraud” but one may safely say, upon the authorities, that two elements are essential, “dishonesty” and “deprivation”. To succeed, the Crown must establish dishonest deprivation. … The element of deprivation is satisfied on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim. It is not essential that there be actual economic loss as the outcome of the fraud. The following passages from the English Court of Appeal judgment in R. v. Allsop in my view correctly state the law on the role of economic loss in fraud, at pp. 31, 32: Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is “intended” only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss. We see nothing in Lord Diplock’s speech [in Scott] to suggest a different view. “Economic loss” may be ephemeral and not lasting, or potential and not actual; but even a threat of financial prejudice while it exists it may be measured in terms of money . . . Interests which are imperilled are less valuable in terms of money than those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other’s economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered by that other in this context. [82] Therefore, if the Crown has proven beyond a reasonable doubt that Ms. Clark suffered a dishonest deprivation as a result of Ms. Drake’s intentional behaviour, that is, that Ms. Clark suffered a detriment, prejudice or risk of prejudice to her economic interests because of Ms. Drake’s intentionally dishonest behaviour, then fraud has been proven. Legal entitlement to items [83] Ms. Drake’s version of events is that Ms. Clark was attempting to make arrangements with Mr. Marriott for the purchase of stolen items, and she facilitated some of those arrangements, but not all of them. Ms. Clark maintains that she did not believe she was arranging to purchase any stolen items, and that all of her dealings were directly with Ms. Drake. As it turns out, there were no items at all. Stolen or not, all of the offered goods were fictitious. Ms. Clark says she paid $8,950 to Ms. Drake and received nothing. Ms. Drake says the money was paid to Mr. Marriott, as facilitated by Ms. Drake, but agrees that Ms. Clark received nothing. [84] In R., v. Theroux, [1993] 2 S.C.R. 5, McLachlin J. (as she then was), speaking for the majority, explained that the personal feelings of an accused about the morality or honesty of the act or its consequences is not relevant. She said, at p. 19: Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence…, the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. [85] In R. v. Davidson, 2007 ONCA 359, the court confirmed that in order to find liability for fraud, the complainant must be legally entitled to the property (in that case, the matrimonial home), otherwise there can be no deprivation: [1] The Crown agrees that to found criminal liability it was essential to prove that before the complainant could be "deprived" she must be "entitled." The Crown at trial proceeded and the conviction rests on the erroneous understanding in law that the appellant's ex-wife was entitled to an interest in the former matrimonial home. She may have been entitled to an equalization payment based on all their assets, but it was clear she had no legal interest in the home. [2] No calculation of equalization of property was performed. The Crown did not establish that the complainant was entitled to any equalization payment and thus failed to prove the element of deprivation. On this basis the conviction cannot stand... [86] In R. v. Cook, (1984), 15 C.C.C. (3d) 277 (Man. C.A.), O’Sullivan J.A., for the court, explained that the actus reus of fraud requires a deprivation of something to which the complainant was legally entitled. In that case, the Canadian Pacific Railway was allegedly deprived of a tariff it charged for grain shipped on its rail lines. Mr. Cook had deceived the C.P.R. into believing that the American grain he was shipping was actually Canadian in origin, and so subject to a lesser tariff. The Manitoba Court of Appeal held that the C.P.R. was obligated to offer the lesser tariff on all the grain shipped in Canada, regardless of its origin. The court said, at p. 281: In my opinion, therefore, the appellants have succeeded in showing that the C.P.R. was not authorized by law to limit the preferential rate for grain to "grain harvested in Canada" and that it was not deprived of anything it was lawfully entitled to. Hence I would hold that the actus reus necessary to constitute the offences has not been proved. I would allow the appeal, set aside the convictions. [87] In this case there were no goods whatsoever, as the entire transaction was a ruse to obtain money from Ms. Clark in return for nothing. She was dishonestly deprived of her money. Whether the fictitious goods were “hot” or not, the entire transaction was a scam. [88] The question remains, has the Crown proven beyond a reasonable doubt that Ms. Drake was responsible? Admissions [89] Admissions are a recognized exception to the hearsay rule. Barring exceptional circumstances (which no one has argued exist in this case), they are not subject to a principled analysis. Again, despite the fact that Ms. Drake is not fully functionally literate, she clearly initiated texts with Ms. Clark, and responded to Ms. Clark’s texts. There were no text responses from Ms. Drake that caused me concern she had misapprehended Ms. Clark’s texts, and no such position was taken by Ms. Drake at trial or in argument. Ms. Drake has adopted most of the text exchanges as being accurate, but says they do not provide a full record of the telephone, in-person, and text communications between her and Ms. Clark. Ms. Clark agrees that there were other telephone, in-person and text conversations between the two of them, and agrees that she selectively provided the texts she felt were relevant, but denies sending some of the threatening texts as alleged by Ms. Drake. [90] While Ms. Drake’s silence in relation to some of the questions put to her by Constable Longpre while under caution cannot serve as evidence against her, the same cannot be said for omissions, silence and/or admissions found in the text exchanges between her and Ms. Clark. In R. v. Violette, 2008 BCSC 422, Romilly J. undertook a thorough analysis of admissions as an exception to the hearsay rule (some citations omitted): 63 Admissions, which in the broad sense refer to any statement made by a declarant and tendered as evidence at trial by the opposing party, are admissible as an exception to the rule against hearsay…The Court [R. v. Foreman (2002), 169 C.C.C. (3d) 489 (Ont. C.A.)] went on to quote from Sopinka J. in R. v. Evans, [1993] 3 S.C.R. 653, at p. 664: The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases. 64 The basic principles are also captured at pp. 327-328 of Watt's Manual of Criminal Evidence 2006: The admissions doctrine is more likely a product of the adversary system than the result of the application of the principles of necessity and reliability. Admissions are presumed truthful because they have been made by D and are tendered by P to advance its case. They are received as an exception to the hearsay rule as evidence of the truth of their contents. Admissions may be made orally, in writing, or by conduct by or on behalf of D. They need not be against D's interest when made. It is left to P to determine whether they will be tendered in evidence. D need not have personal knowledge of the fact(s) admitted, provided s/he exhibits a belief in the truth of the information conveyed. Admissions are evidence both for and against their maker, D, who is entitled to offer explanation(s) for having made them. Silence may also constitute an admission, at least where a denial would be the only reasonable course if D were not responsible as alleged. The principle does not apply, however, where D is in the presence of police at the material time. Failure to deny an accusation is not the only form of adoptive admission. Any words, conduct, action or demeanour that amounts to an acknowledgement of the truth of an accusation, in some instances even a denial, may constitute an adoptive admission, depending upon all the circumstances. The trial judge must determine whether there is any evidence that D, by words, action, conduct, or demeanour, has adopted a statement made in his/her presence as his/her own, before the trier of fact may find it to be an admission and make use of it as such. All the circumstances must be considered. The weight of the admission is for the trier of fact. [Emphasis added] [91] Justice Chipman reviewed the reliability of text messages in R. v. Calnen, 2015 NSSC 319, noting that because they are in written form, such messages have been treated as more reliable than hearsay evidence of oral cell phone conversations (para. 19). [92] Nonetheless, the court must be very careful when considering omissions, or adoptive admissions, considering the presumption of innocence and the reasonable doubt standard. In R. v. Robinson (2014), 306 C.C.C. (3d) 242 (Ont. C.A), Simmons J.A., for the court, reviewed the law relating to adoptive admissions by silence: [48] David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2013), at para. 36.04, sets out the general principles relating to adoptive admissions by silence, in part, as follows: An adoptive admission is a statement made by a third party in the presence of and adopted by D. There is only adoption to the extent that D assents to the truth of the statement expressly or impliedly. Assent may be inferred from D's i. words; ii. actions; iii. conduct; or iv. demeanour. Assent may also be inferred from D's silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission. The respective roles of judge and jury in adoptive admissions are controversial. Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by D, before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction. (Emphasis omitted) [49] Under the heading "Related Provisions and Principles", Watt J.A. sets out additional requirements where an accused's silence is alleged to constitute an adoptive admission: Where silence is the manner of an alleged adoption, there are several conditions that must be met: i. D must have heard the statement; ii. the statement must be about a subject matter of which D was aware; iii. D must not have been suffering from any disability or confusion; iv. the declarant must not be someone to whom D would be expected to reply, as for example, a child. [50] These principles are derived, at least in part, from the seminal case R. v. Christie, in which Lord Atkinson held, at p. 554 A.C., that a statement made in the presence of an accused person is not evidence against him of the facts stated except to the extent that he accepts it by words, conduct, action or demeanour to make it in effect his own: [T]he rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. . . . He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it. [51] In addition to the actions of an accused that might lead to an inference of adoption that are referred to in Christie, this court has consistently held that an accused's silence may lead to an inference of adoption of a statement made in the accused's presence in circumstances where the accused could reasonably have been expected to reply. [52] In R. v. Eden, [1970] 2 O.R. 161, [1969] O.J. No. 1570 (C.A.), Gale C.J.O. explained the principle this way, at pp. 163-64 O.R.: The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived. [53] In R. v. Govedarov, Popovic and Askov (1974), 3 O.R. (2d) 23, [1974] O.J. No. 1837, 16 C.C.C. (2d) 238 (C.A.), Martin J.A. cited, at p. 278 C.C.C., Phipson on Evidence, 11th ed. (London: Sweet & Maxwell, 1970), at p. 767, for the more general proposition that: The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances be such that he could reasonably have been expected to have replied to them. [54] Martin J.A. repeated this basic formulation of the test in R. v. Baron (1976), 14 O.R. (2d) 173, [1976] O.J. No. 2304, 31 C.C.C. (2d) 525 (C.A.), at p. 187 O.R., pp. 539-40 C.C.C.: The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent. (Citations omitted) [55] In R. v. Warner (1994), 21 O.R. (3d) 136, [1994] O.J. No. 2658, 94 C.C.C. (3d) 540 (C.A.), Griffiths J.A. expressed the test as follows, at p. 144 O.R., p. 549 C.C.C.: Silence may be taken as an admission ". . . where a denial would be the only reasonable course of action expected if that person were not responsible": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham; Butterworth's, 1992), at p. 286. In R. v. Baron . . . , Martin J.A. put the principle as follows at pages 539-40: The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he [page594] could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent. [Citation omitted] [56] In Warner, Griffiths J.A. went on to hold that a trial judge should make a preliminary determination that some evidence of adoption exists before leaving the issue with the jury. Further, if the issue is left with the jury, the trial judge should instruct them that they must consider all the circumstances under which the statement was made before making a finding of adoption, stating, at pp. 144-45 O.R., pp. 549-50 C.C.C.: Whether or not the silence of the accused constitutes an implied admission, depends on whether, in all of the circumstances, such an expectation [of a reply] is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility. . . . . . Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made. [57] This court's most recent discussion of adoption by silence confirms the Baron formulation of the test. In R. v. F. (J.) (2011), 105 O.R. (3d) 161, [2011] O.J. No. 1577, 2011 ONCA 220, 269 C.C.C. (3d) 258, affd without reference to this point, [2013] S.C.J. No. 12, 2013 SCC 12, 293 C.C.C. (3d) 377, Rosenberg J.A. said the following, at para. 46: There was sufficient evidence from which it can be inferred that the appellant adopted the statement about his supplying the Tylenol 3. Silence alone is evidence that the person adopted the statement, if the circumstances are such that the person could reasonably have been expected to have replied to them: R. v. Baron and Wertman. Given AS's evidence set out above, there was a foundation for finding that the appellant adopted the statement on the basis of silence. But, there was more; it was AS's evidence that they were all involved in the conversation about the Tylenol 3. . . . Evidence establishing on a balance of probabilities that he adopted the statement was sufficient to render it admissible against the appellant: R. v. Evans. (Citations omitted; emphasis added) [58] Finally, I note that in S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013), the authors recommend a cautionary approach to the doctrine of adoption by silence, at p. 7-137: One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations. Jury suppositions about how an accused "should" behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. [93] From the very beginning of the text message exchange, Ms. Clark squarely put to Ms. Drake the allegation that she had paid Ms. Drake, not Harold Marriott, approximately $9,000, and had not received any goods in return. Ms. Drake did not deny any of this and, in fact, initially said she had not lied and then proceeded to string Ms. Clark along for weeks regarding re-payment. Recent Fabrication / Prior Consistent Statements [94] The Crown says Ms. Clark’s text messages can be relied on by the court as an exception to the prohibition on prior consistent statements because the defence has accused her of fabricating her story. Mr. Sarson, on behalf of Ms. Drake, submits that the alleged fabrication is not recent enough to allow the text messages to be relied on as prior consistent statements. Subsequent to closing submissions, the Crown provided further submissions on this issue, including two cases: R. v. Stirling, 2008 SCC 10, and R. v. Dinardo, 2008 SCC 24. In Stirling, Bastarache J. reviewed the law on the use of prior consistent statements in response to allegations of fabrication (some citations omitted): [5] It is well established that prior consistent statements are generally inadmissible (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self‑serving… There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence … Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred… Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose. … [7] However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”… … [11] Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. Both the Nova Scotia Court of Appeal and the Alberta Court of Appeal refer to the “bolstering” of the witness’s credibility (R. v. Schofield (1996), 148 N.S.R. (2d) 175, at para. 23; R. v. R. (J.) (2000), 84 Alta. L.R. (3d) 92, 2000 ABCA 196, at para. 8), a term which is also used in the leading text of Sopinka, Lederman and Bryant, at p. 314. The Ontario Court of Appeal recently found that these statements are capable of “strengthening” credibility (R. v. Zebedee (2006), 211 C.C.C. (3d) 199, at para. 117), while the British Columbia Court of Appeal has referred to their ability to “rehabilitate” credibility (R. v. Aksidan (2006), 209 C.C.C. (3d) 423, 2006 BCCA 258, at para. 21). This Court has found that the statements can be admitted “in support of” the witness’s credibility (Evans, at p. 643). What is clear from all of these sources is that credibility is necessarily impacted — in a positive way — where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility. [12] It is therefore not entirely accurate to submit, as the appellant contends, that prior consistent statements cannot be used to “bolster” or “support” the credibility of a witness generally. This argument attempts to insulate the impact of the prior consistent statements from the remainder of the credibility analysis and suggests that “general” credibility can somehow be hived off from the specific credibility question to which the statements relate. Such a fine parsing of the notion of credibility is impractical and artificial. Further, while it would clearly be an error to conclude that because someone has been saying the same thing repeatedly their evidence is more likely to be correct, there is no error in finding that because there is no evidence that an individual has a motive to lie, their evidence is more likely to be honest. [95] In Dinardo, Charron J. discussed some of the limitations on the use of a prior consistent statement, even if admissible: [36] As a general rule, prior consistent statements are inadmissible (R. v. Stirling, [2008] 1 S.C.R 272, 2008 SCC 10). There are two primary justifications for the exclusion of such statements: first, they lack probative value…, and second, they constitute hearsay when adduced for the truth of their contents. [37] In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed. The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45 (emphasis in original); see also R. v. F. (J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476). [38] In R. v. G.C., [2006] O.J. No. 2245 (QL), the Ontario Court of Appeal noted that the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness, particularly in cases involving allegations of sexual assault against children. As Rouleau J.A. explained, for a unanimous court: Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self‑corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can “be supportive of the central allegation in the sense of creating a logical framework for its presentation”, as set out above, and can be used in assessing the truthfulness of the complainant. As set out in R. v. F. (J.E.) at p. 476: The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed. The trial judge understood the limited use that could be made of this evidence as appears from his reasons: [I]t certainly struck me while the fact that you go and tell somebody that you were molested doesn’t confirm the fact that you were molested. I’m struck by the manner or the way it came out, tends to confirm [the complainant’s] story — how they were reading this book, and how the thing came up about child sexual abuse. In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child’s evidence, be a useful tool in assisting the trial judge in the assessment of the child’s truthfulness. This was such a case. [Emphasis added] [96] In R. v. D.D.S., 2006 NSCA 34, the court discussed the general prohibition against the use of prior consistent statements to support a witness’s credibility. Saunders J.A., for the court, confirmed that evidence is regarded as oath-helping, and is generally superfluous and of no probative value. Addressing the trial judge’s consideration of a statement given by the complainant to a social worker and a police officer: [83] …There can be no doubt that in the particular circumstances of this case he erred in law in using J.S.’s prior consistent statement to bolster his overall assessment of her credibility. See generally R. v. Hunter (2004), 182 C.C.C. (3d) 121(Ont. C.A.). Generally speaking, in a criminal trial, absent a proper and limited exception, both the Crown and the defence are prohibited from leading prior consistent statements of a witness in any form, oral or written, to support the witness’s credibility. Such evidence of prior consistent statements is seen to be superfluous and of no probative value…This was not a case - for example to rebut an allegation of recent fabrication - where a prior consistent statement would be admissible for such a legitimate but limited purpose. Rather, in this case the trial judge said: The testimony is consistent with the statement she provided to Lori Corbett and Constable Williams. (Underlining mine) [84] At the hearing on appeal Mr. Fiske, for the Crown, candidly and quite properly acknowledged that the trial judge had erred by putting J.S.’s prior consistent statement to an improper use so as to bolster his own assessment of her credibility. That is pure oath-helping. Such is a prohibited use and amounts to serious error in law. [97] Justice Saunders went on to quote the following comments by the Ontario Court of Appeal in R. v. J.S.K., [2005] O.J. No. 3809: [6] The complainant's letter was introduced at trial to assist in explaining how the complainant's allegations came to be reported. At the time of tendering the letter as an exhibit, the trial Crown confirmed that he was not asking that it be accepted for the truth of its contents and, on that basis, defence counsel indicated that he was content that the letter be entered as an exhibit. Neither counsel referred to the contents of the letter during the course of the trial. [7] Viewed in this context, unless he was treating it as a factor enhancing the complainant's credibility, there was no other reason for the trial judge to refer to the contents of the complainant's letter and to its consistency with the complainant's evidence at trial. [8] It is well established that, subject to certain limited exceptions, evidence of prior consistent statements is superfluous and of no probative value: see, for example, R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont. C.A.). Here, apart from assisting in explaining how disclosure occurred, none of the exceptions apply. Accordingly, the trial judge's use of the complainant's letter as a prior consistent statement to bolster the complainant's credibility was an error. [9] We are not persuaded that this is a case in which it would be appropriate to apply the curative proviso. While it is true that, subsequently in his reasons, when he listed various factors supporting the complainant's credibility the trial judge did not refer to the consistency of the complainant's accounts, we cannot be satisfied that the consistency between the complainant's letter and her trial evidence was an inconsequential consideration in the trial judge's credibility assessment. [Emphasis added] [98] In R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, Cory J., for the majority, explained the scope of re-direct examination when an issue of recent fabrication has arisen or been alleged: 34 Ordinarily, other persons may not be called to testify as to a witness's out of court statements. Nor may a witness repeat, in court, her own earlier statements. Generally, the narration by a witness of her previous declarations made to others outside of the court should be excluded because of its general lack of probative value and because such a repetition is, as a rule, self-serving. However, they may be admitted in support of the credibility of a witness in situations where that witness's evidence is challenged as being a recent fabrication or contrivance… 35 Further, it has been held that there need not be, in cross-examination, any express allegation of recent fabrication for the prior statements to be admissible. It is sufficient if, in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance. In those situations, fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness's conduct throughout the police investigation. To demonstrate that the evidence of the witness is not a recent fabrication it may be essential to introduce on re-examination a prior statement which shows the consistency of the witness' testimony.… 36 In this case, it was apparent that it was the position of the defence that Linda Sample had killed her husband and was attempting to blame the appellant for the murder. The nature of the cross-examination involved an attack on the truth of her testimony and of her statements given to the police. In those circumstances, the prior consistent statement made by Linda Sample to the police was admissible. [Emphasis added] [99] See also R. v. Laing, 2017 NSCA 69, at paras. 71-82. [100] In the instant case the text messages between Ms. Drake and Ms. Clark were admissible as part of the narrative and as admissions against interest on the part of Ms. Drake. To a very limited extent they are also admissible as prior consistent statements of Ms. Clark to rebut the allegation of “recent” fabrication on her part. However, repetition of the same story is no guarantee of trustworthiness, and if Ms. Clark was not telling the truth initially, her repetition of falsehoods does not magically transmute lies into the truth. W.D. Analysis [101] This is not a credibility contest between Ms. Clark and Ms. Drake. There is some evidence to support Ms. Clark’s explanation for the withdrawals from her bank accounts. Of course, she could have done anything with the money she withdrew. It need not necessarily have gone to Ms. Drake (or Mr. Marriott, for that matter). There is also confirmation of her e-transfer to Cathy (Drake) Harris. However, the text messages are the most significant piece of evidence in establishing what happened, in light of the conflicting testimony between Ms. Clark and Ms. Drake. First, if you believe the evidence of the accused, obviously you must acquit. [102] Ms. Clark said that she placed an ad on Kijiji, and Ms. Drake then contacted her. Ms. Drake said she was the one who placed the ad. It would make no sense for Ms. Clark to call Ms. Drake about a fridge that was the wrong size, or to go to Ms. Drake’s home, if there was no fridge. The text messages confirm what Ms. Clark alleged in relation to the following significant facts: 1) She placed the ad for a fridge on Kijiji – Ms. Drake did not deny this or correct it in her response. In fact, when she was accused of lying about the fridge and other items, she responded by text claiming that she never lied about anything and that Ms. Clark could have what she was owed; 2) She paid $9,000 and got nothing in return – there was no denial or correction from Ms. Drake; 3) She thought she had paid for a 2014 Dodge Dakota – no denial or correction from Ms. Drake; 4) She thought she had paid for a fifth wheel trailer – no denial or correction from Ms. Drake; 5) She thought she had paid for a lawn mower – no denial or correction from Ms. Drake; 6) She thought she had paid for cigarettes – no denial or correction from Ms. Drake; 7) She thought she had paid for two skidoos – no denial or correction from Ms. Drake; 8) She thought she had paid for two sea-doos – no denial or correction from Ms. Drake; 9) She thought she had paid for a four-wheeler – no denial or correction from Ms. Drake; 10) She thought she had bailed out Harold Marriott – no denial or correction from Ms. Drake; 11) Ms. Drake had told her she was getting a $439,000 legal settlement – no denial or correction from Ms. Drake; 12) She thought Ms. Drake was sending her a certified cheque – no denial or correction by Ms. Drake; 13) She then thought Ms. Drake’s Aunt was going to pay her - no denial or correction by Ms. Drake; 14) She then thought Ms. Drake’s father was going to pay her - no denial or correction by Ms. Drake. [103] Ms. Drake’s evidence was almost completely devoid of credibility. Aside from her lengthy criminal record for crimes of dishonesty, which erodes her credibility, her testimony made no sense in comparison with the text messages. Additionally, as noted above, she claimed not to know what had happened to her phone on one day of her testimony, and then mysteriously claimed to have had an epiphany as to what had happened to it the next day in court. [104] Ms. Drake said that she had a text from Ms. Clark threatening her and asking for $14,000 to make the criminal charges go away. During the police interview with Constable Longpre, Ms. Drake offered to show her some sort of text. Constable Longpre told Ms. Drake to take it up with her lawyer and did not look at the text. Ms. Drake said she showed the text to Detective Constable MacAdam, who made no record of it, but confirmed at trial that he had seen a text that was part of a long string of texts with “Mary”, who told Ms. Drake she was requesting $14,000 in exchange for making charges go away. Det. Cst. MacAdam “guesstimated” that he saw this text sometime in 2018. Ms. Drake was involved in these events in July and August 2017, and gave her statement to Constable Longpre on October 5, 2017. The text message in question was not produced at trial and Ms. Drake gave a convoluted explanation as to what became of the phone allegedly containing these texts. It appeared that she made up a story overnight while she was in the midst of testifying. Nonetheless, as supported by the testimony of Det. Cst. MacAdam, it is possible that such a text was sent by Ms. Clark. Ms. Clark denied it, so this goes to her credibility. [105] Ms. Clark also denied knowing that she was buying “hot” cigarettes. The price she agreed to pay was such that she would surely have suspected the cigarettes were stolen. If that is not enough, on August 2, Ms. Drake accused Ms. Clark of agreeing to buy “hot smokes”. In response, Ms. Clark texted “Well I might be concerned but I didn’t get them so stupid to say what’s gonna happen to me nothing I got no stolen smokes.” If this is not an admission of awareness that she was buying stolen cigarettes, it is very close to one. Ms. Clark’s credibility is further eroded as a result. [106] Other examples of credibility issues regarding Ms. Clark’s testimony, such as lying to Ms. Drake and the police about her husband’s knowledge of her actions, were noted above. She also suggested that her memory might be better for these events now as opposed to when she gave her police statement in 2017. [107] While I do not believe some of what Ms. Clark said, a trier of fact can accept some, none, or all of any witness’s testimony. The text message exchanges corroborate many of Ms. Clark’s allegations, particularly in relation to the essential elements of the offence: that she was fraudulently deceived into giving Ms. Drake $8,950 and received nothing in return. Ms. Drake’s testimony does not accord with the text messages and corroborating evidence on the essential elements and I reject her testimony on certain critical facts. [108] The text message exchange was telling. Ms. Drake said that despite the fact that she apologized for certain behaviours attributed to her via text, or omitted to deny certain allegations via text, she conveniently spoke to Ms. Clark on each of these occasions to deny the allegations. Ms. Clark said that did not occur. I do not believe Ms. Drake in this regard. [109] While the Crown has the burden of proving each essential element beyond a reasonable doubt, and there is no burden on Ms. Drake to prove anything, based on all the evidence (taking into account that not all of the text exchange was provided to the court), I find that the Crown has shown that Ms. Drake did not deny the allegations made by Ms. Clark via text or on the phone, and that she admitted some of the inculpatory allegations. The texts corroborate Ms. Clark’s testimony on the essential elements, and refute Ms. Drake’s exculpatory testimony. [110] In relation to the first W.D. question, I do not believe the evidence of the accused, Ms. Drake. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. [111] Ms. Drake’s testimony does not leave me with a reasonable doubt. There were glimmers of truth sprinkled throughout her story, but not in relation to the critical aspects of deceiving Ms. Clark and swindling $8,950 from her by deceitful and fraudulent means. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [112] There are undoubtedly flaws in Ms. Clark’s credibility, especially in relation to her denial that she thought the cigarettes were stolen, the $14,000 text, telling the police she had told her husband about the money when she had not told him anything, and claiming her memory of these events was somehow better four-and-a-half years later. However, admissions found in, and inferred from, the text message exchange, and to a much lesser extent the bank records, confirm her testimony in relation to the essential elements of the offence of fraud. Ms. Drake pretended she had items to sell when she did not, took money for these fictitious goods from Ms. Clark under those false pretenses, then concocted a series of fantastic events that required Ms. Clark to continuously produce more money, supposedly in order to receive the “items” she already had paid for, and then strung her along regarding repayment when Ms. Clark caught on to the scam. In the end, Ms. Drake obtained $8,950 of Ms. Clark’s money through deceit, and Ms. Clark had nothing in return. [113] I am convinced beyond a reasonable doubt that Ms. Drake deceitfully deprived Ms. Clark of $8,950. Conclusion [114] The Crown has proven that Elizabeth Drake is guilty of fraud in the amount of $8,950. Arnold, J.