R. v. Mastronardi

2014 BCCA 302 R. v. Mastronardi

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Mastronardi, 2014 BCCA 302 Date: 20140724 Docket: CA040053 Between: Regina Respondent And Kolten William Raiden Mastronardi Appellant Restriction on Publication: Publication bans have been mandatorily imposed under s. 486.4(1) and s. 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of information that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: This judgment was corrected at page 1 and paragraphs 12, 13 and 29 on July 31, 2014. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice D. Smith The Honourable Madam Justice MacKenzie On appeal from: An order of the Supreme Court of British Columbia, Conviction dated November 14, 2006 and Sentencing dated June 27, 2012 (R. v. Mastronardi, 2006 BCSC 1681 and 2012 BCSC 957, New Westminster Registry No. X068927). Counsel for the Appellant: E. Purtzki Counsel for the Respondent: M. Ainslie, Q.C. J. Dickie Place and Date of Hearing: Vancouver, British Columbia June 19, 2014 Place and Date of Judgment: Vancouver, British Columbia June 19, 2014 Place and Date of Reasons: Vancouver, British Columbia July 24, 2014 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Chief Justice Bauman The Honourable

Madam Justice MacKenzie Summary: The appellant appealed four of 12 convictions, in a 12-count indictment, for the sexual assault of victims with whom he was involved romantically. He employed a modus operandi that drew the victims quickly into his controlling fantasy world in which he falsely misrepresented, among other things, that he was a qualified and practicing gynecologist, and thereby gained their "consent" to perform intimate vaginal examinations on them. All the victims testified that they would not have consented to the "examinations" if they had known the appellant was not a doctor. The trial judge found the "examinations" were part of an overall plan to sexually control and completely dominate every aspect of the victims' lives and was not restricted to the purported doctor-patient relationship. The appellant also appeals his convictions in regard to the stand-alone counts of fraud and extortion, respectively, and on one of the four sexual assault convictions that was particularly brutal, claiming the judge erred in dismissing his application for severance of those counts. On appeal the appellant submitted the trial judge erred in finding that his admitted assaults of the victims were sexual in nature and in failing to consider "the interests of justice" in dismissing his severance application. Held: Appeal dismissed from the bench. The trial judge, sitting without

a jury, did not err in finding that the non-consensual vaginal examinations were sexual assaults. Nor did he err in principle or fail to consider relevant factors in dismissing the severance application. Reasons for Judgment of the Honourable Madam Justice D. Smith: [1] Kolten Mastronardi appealed several convictions on all 12 counts in a 12-count indictment that arose out of complaints from six women with whom he had become romantically involved. The conduct occurred over a seven-month period, between February 18, 2005, and August 22, 2005, and only ended upon his arrest. The offences included four counts of sexual assault, one count of sexual assault with a weapon, one count of assault causing bodily harm, one count of uttering threats, four counts of fraud and one count of extortion. Mr. Justice Josephson, sitting as a judge alone, convicted Mastronardi of these offences following a 16-day trial. [2] On appeal, Mastronardi raised two issues. First, while admitting that he had assaulted four of the victims when he performed intimate vaginal examinations on each of them after falsely representing himself as a gynecologist, he contended, relying primarily on R. v. Chase, [1987] 2 S.C. R. 293, that: (i) the assaults were not "sexual or carnal" in nature as they were performed in a "medical" or "clinical" manner; (ii) he was in a consensual sexual relationship with the victims

and therefore the "gynecological examinations" did not give him sexual access that was "otherwise unavailable"; and (iii) he did not have a sexual purpose in performing the examinations and therefore his touching did not undermine the victim's sexual integrity at the time the assault occurred. [3] Second, Mastronardi challenged the trial judge's pre-trial ruling that dismissed his severance application in regard to the stand-alone counts of fraud and extortion. He alleges that the trial judge erred in finding a sufficient legal or factual nexus between those counts and the others, as the circumstances of the fraud count, he submitted, included no allegation of sexual misconduct, and the extortion count presented a unique fact pattern. He had also applied to sever from the indictment one of the sexual assault counts that was particularly sadistic and violent, contending that its circumstances were too prejudicial to be heard with the others. Although the trial was eventually held before the judge alone, Mastronardi submits on appeal that the trial judge erred in over-emphasizing the efficacy of an adequate jury instruction in mitigating any risk of prejudice, and that the trial judge rendered an "unjudicial decision" by failing to properly weigh and consider the relevant factors in regard to severance as articulated in R. v. Last, [2009] 3 S.C.R. 146, a decision that post-dated

the judge's ruling. [4] After hearing the submissions of counsel for Mastronardi, the Court was unanimously of the view that there was no merit in the appeal. Accordingly, the appeal was dismissed from the bench, with reasons to follow. Background [5] Mastronardi, aged 32 at the time of trial, c. The circumstances of his offences against the six victims in this case are disturbing. The details of his offending conduct with each victim were fully canvassed by the trial judge in comprehensive written reasons for judgment: see R. v. Mastronardi, 2006 BCSC 1681. For the purpose of addressing the issues raised in this appeal, they need only be summarized generally. [6] Mastronardi met his victims through Internet dating sites. His initial meetings with most of the victims involved sexual encounters after which he would tell them that according to his Sicilian culture they were considered married and that their marriage would be formalized in weddings to come. There is no evidence that Mastronardi has Sicilian roots; he was born in Ontario as Gordon William Stanley. In January 2002, he legally changed his name to Kolten William Raiden Mastronardi, adopting a surname he appears to have taken from a family that lived near to where he grew up. He moved to British Columbia in July 2004, and was legally married soon thereafter. With each of the victims he represented himself as single;

none was aware of the others, or of his wife, and the duration of the individual relationships often overlapped. [7] While the offending conduct varied slightly with each victim, in general he employed a similar modus operandi that drew the victims "quickly into his controlling fantasy world" while making "adjustments to his performances according the vulnerability of each complainant" (para. 4). The trial judge summarized features of the appellant's highly unusual pattern of deceit at para. 3: With small variations, he represented himself as: (a) coming from a large, powerful and wealthy Sicilian family; (b) being a widower seeking a wife; (c) being a medical doctor with a specialty in gynaecology; (d) having hospital privileges and a clinic; (e) being a kind, caring and considerate person with positive family and moral beliefs, conveyed in conversations that went on for hours on end; (f) having elaborate and sometimes bizarre family and cultural traditions requiring highly submissive wives and amalgamation of finances to an account controlled by him; (g) as time went on, being third in command in [a] mafia like family organization; (h) not wanting to date, but wanting to immediately enter into an intimate relationship, after which his culture and family regarded them as married; (i) once so married, his family required him to follow family and cultural traditions. [8] The

trial judge also summarized Mastronardi's manipulation of his victims in these terms: [228] Everything about the accused, as he presented himself to the complainants, was a lie. He wove a fantastic and, at times, bizarre fantasy world into which he gradually but quickly submersed the complainants. He was able to measure the degree of vulnerability of each and make appropriate adjustments to keep the relationships alive. He acted in a fashion with each that reveals a complete inability to empathize. His goal was to obtain frequent unprotected sex with the complainants, to impregnate them, and to dominate and control them both personally and financially. [9] Of relevance to this appeal are the appellant's false representations to five of the victims that he was a certified and practicing gynecologist. Under this guise, he succeeded in fraudulently gaining the consent of four of the victims to have him perform vaginal "gynecological examinations" on them. All four of those victims testified that had they known the appellant was not a doctor they would not have consented to his "examinations". [10] The trial judge found each of the victims to have been very credible witnesses: [225] Courts have long referred to the "manner and demeanour" of a witness in coming to conclusions on credibility. This factor weighs heavily in favour of all six witnesses. Each was of different

personality. Cold transcripts do not convey what was apparent in the court room: the humiliation and embarrassment when each complainant described certain incidents, the tears at appropriate times and the prompt and curt responses to certain offensive suggestions, as some examples. There were no hints of a lack of recall of significant events and not the slightest hint of prevarication. These were significant and highly unusual events in the lives of each complainant. [11] In particular, he accepted as credible and honest the evidence of the sexual assault victims who had been subject to the appellant's fraudulent vaginal examinations. Relying on the reasoning from R. v. Maurantonio, [1968] 1 O.R. 145 (Ont. C.A.), the trial judge found that none of those victims would have consented to Mastronardi's intrusive intimate examinations if they had not believed he was a gynecologist (paras. 235, 263, 274, 283). The judge held that Mastronardi's false representations as to his medical qualifications amounted to a fraud and vitiated their consent, as the "examination" to which they had consented was to a bona fide medical examination by a qualified doctor (para. 236). The appellant does not take issue with these findings. [12] The trial judge also found that the fraudulent "gynecological examinations" were part of an overall plan by Mastronardi to sexually control and completely

dominate every aspect of the victims' lives and was not restricted to a purported doctor-patient relationship (para. 238). The judge found that Mastronardi controlled his victims through bizarre and humiliating physical, emotional and sexual abuse that included: (i) breaking the nose of a victim and inserting the butt end of a knife into her vagina and anus, claiming he was acting under the orders of the head of his mafia "family", and creating such fear in her that he convinced her to have tattooed across her stomach in large black letters the words: "PROPERTY OF NICOLO MASTRONARDI" in order to avoid being killed by his "family"; (ii) telling one victim after anally penetrating her without her consent and after she cried out in pain and begged him to stop, that she would get used to it as it was important to him; (iii) after his "gynecological examinations" giving his victims false "diagnoses" of sexually transmitted infections (STIs), which he would then claim they had transmitted to him; (iv) extorting sexual intercourse from a young and sexually naïve foreign student by threatening to inform her parents about their sexual encounter and to report her "crime" of "sexual teasing" to the immigration authorities and have her deported; and (v) defrauding some of his victims of money and credit in the thousands of dollars, including as much as $55,000 from the victim of the

stand-alone fraud count. [13] Before trial, the appellant applied to sever and secure separate trials on the stand-alone fraud and extortion counts in the indictment, as well as the sexual assault count that was particularly brutal in its circumstances. When the voir dire was held, Mastronardi had not yet re-elected his mode of trial from judge and jury to judge alone. Lengthy submissions, both orally and in writing, were made on the application, which the trial judge dismissed in brief oral reasons (indexed at 2006 BCSC 2120). In particular, he made the following comments: [2] There is a very close nexus in time and place. There is no suggestion that the accused wishes to testify on one or more counts and not on others. The onus is on the accused, and in my view, he has fallen far short of that onus. Firstly, there is a likelihood that there will be an instruction to the jury on similar fact, based on the submissions I have heard. I am not deciding that now. But even if not, as I mentioned, there is a close nexus in time and place, as well as an interrelationship between the complainants. Any possible prejudice would only flow from improper reasoning on the part of the jury. That, in my respectful view, can be remedied with an appropriate instruction to them. You must not lose sight of the confidence courts have in the ability of a jury to follow instructions, as was made

clear in R. v. Corbett, [1988] 1 SCR 670 as one example. [14] Following this ruling, Mastronardi re-elected to be tried by judge alone. [15] In his final reasons for judgment, the trial judge found "there is no need to resort to the similar fact rule, even though it would be appropriate to do so for most counts". He added that "(i)f that rule were to be applied, the Crown's case moves far beyond the requisite standard of proof beyond a reasonable doubt" (para. 227). He further stated that if it had been necessary to resort to the similar fact rule, the standard set by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56 had been "easily met", with the exception of the extortion count. He found that the prejudicial effect was low, the probative value was high and that there was no reasonable prospect of collusion between the complainants (paras. 285-286). Discussion (i) Did the trial judge err in law in convicting the appellant of four counts of sexual assault for his fraudulent gynecological examinations of those victims? [16] Mastronardi argues that his non-consensual digital penetration of the victims' vaginas was not sexual because neither party intended it to be sexual, it was not done for a sexual purpose and, in any event, he was in a consensual sexual relationship with the victims. I do not agree. The compelling and undisputed circumstances prove otherwise. [17] In R.

v. Chase, [1987] 2 S.C.R. 293, the Supreme Court of Canada underscored the importance of all of the circumstances surrounding the impugned conduct in determining the nature and quality of the act: Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" ([R. v. Taylor (1985), 44 C.R. (3d) 263 (ABCA)], per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime In Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim, L.Q. 200, at p. 204). The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct was sexual. If the motive of the accused is sexual gratification, to the

extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [At 302; Emphasis added.] [18] Similarly, in R. v. Litchfield, [1993] 4 S.C.R. 333, the Court described the test for determining whether conduct of an accused constituted a sexual assault as an objective one: The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one. As this Court indicated in Chase, all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. It is therefore important in individual cases that courts not create unnecessary barriers to considering all the circumstances surrounding conduct which is alleged to constitute a sexual assault. [At 345; Emphasis added.] [19] However, in some cases, of which I would include this one, the part of the body that is subjected to non-consensual touching is effectively determinative of the sexual nature of the assault: see R. v. Nicolaou, 2008 BCCA 300, R. v. V. (K.B.), [1993] 2 S.C.R. 857, and R. v. Bernier (1997), 119 C.C.C. (3d) 467 (Que. C.A.), aff'd [1998] 1 S.C.R.

975. Simply put, a vagina is a sexual organ. Mastronardi digitally penetrated the victims' vaginas without their consent. Irrefutably his admitted non-consensual touching of their genitals necessarily violated their sexual integrity and constitutes a sexual assault. [20] The surrounding circumstances in which the fraudulent gynecological examinations occurred support their characterization as sexual in nature. These include the trial judge's finding that they were part of Mastronardi's overall plan to sexually control and dominate every aspect of the victims' lives, the appellant's fraudulent representations that he was a qualified and practicing gynecologist in order to obtain their consent to his "examinations" (see R. v. Mabior, 2012 SCC 47 at para. 42, and R. v. Hutchinson, 2014 SCC 19 at para. 57), and his false diagnoses after the "examinations" that the victims had sexually transmitted diseases which they had transmitted to him during their sexual encounters. [21] Moreover, the motive or specific purpose of an accused with respect to the sexual nature of an assault is irrelevant as the offence is one of general intent: Chase at 302-303; Bernier at 475; Nicolaou at para.

38. It is also irrelevant that the appellant and his victims were at other times involved in a consensual sexual relationship. There is no implied consent to sexual activity (R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 25, 28 and 31), and "the consent of the complainant must be specifically directed to each and every sexual act" (R. v. J.A., 2011 SCC 28 at para. 34). This negates any suggestion that a general consent to sexual activity can somehow nullify the absence of consent to a specific activity. Lastly, it is irrelevant that the "examinations", based on some of the victims' testimony, were consistent with a medical gynecological examination. A fraudulent skill cannot legitimize non-consensual sexual activity. (ii) Did the trial judge err in law in dismissing the appellant's severance application? [22] The onus is on an accused to persuade the Court on a balance of probabilities that severance is required in the "interests of justice" (see e.g., R. v. Bull, 2001 BCCA 21 at para. 12). Section 591(3) of the Criminal Code provides: (3) The court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts; [23] A severance application involves the exercise of judicial discretion in balancing a multitude of relevant factors. Appellate review requires deference be accorded to such

discretionary orders. As the Supreme Court of Canada noted in Litchfield: The criteria for when a count should be divided or a severance granted are contained in ss. 590(3) and 591(3) of the Code. These criteria are very broad: the court must be satisfied that the ends or interests of justice require the order in question. Therefore, in the absence of stricter guidelines, making an order for the division or severance of counts requires the exercise of a great deal of discretion on the part of the issuing judge. The decisions of provincial appellate courts have held, and I agree, that an appellate court should not interfere with the issuing judge's exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice. [At 353-354.] [24] More recently, in R. v. Last, 2009 SCC 45, the Court confirmed this test and the two separate grounds for intervention: an unjudicial severance ruling or a ruling that resulted in an injustice. The former calls for an inquiry into the circumstances prevailing at the time of the application, while the later requires a review of the circumstances during the trial and of the verdicts (para. 15). [25] The ultimate question, however, is whether the interests of justice require the granting of severance. The interests of justice entail consideration of an accused's right to be tried on the

evidence admissible against him, and society's interest in seeing that justice is done in a reasonably efficient and cost-effective fashion (para. 16). An assessment of the interests of justice will require a weighing by the trial judge of the risk of prejudice to an accused, such as where evidence admissible on one count may influence the verdict on an unrelated count, against the public interest in a single trial. As the Court noted: "Severance can impair not only efficiency but the truth-seeking function of the trial" (para. 17). [26] The Court in Last went on to list a number of non-exhaustive factors the courts will consider in determining if the interests of justice required severance of one or more counts in an indictment, including: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons [At para. 18; citations omitted]. [27] In this case, the legal and factual nexus

between the counts and the potential for the admissibility of similar fact evidence on all of the counts weighed heavily in favour of a single trial. [28] The appellant acknowledged "a unique extensive and highly unusual pattern of behaviour in introducing himself to the complainants, and in controlling them thereafter" (see ruling on the severance application, indexed at 2006 BCSC 2120, at para. 1). All of the scenarios involved manipulation and control of vulnerable women through escalating forms of physical, emotional or sexual abuse, and often all three. He exploited each of the complainants in an effort to gain complete domination over their lives, and used his position to obtain money, sexual favours, and to perpetrate physical violence. The factual nexus of his offending conduct with all of the victims was evident in the common modus operandi he employed with each of them to garner their initial trust. The legal nexus with respect to the sexual assault and extortion charges was likely to be on issues surrounding consent, while the fraud charges all involved allegations of similar manipulative conduct that was likely to raise similar legal issues of deceit and deprivation. [29] The strength of the factual and legal nexus was evident in the limited scope of the appellant's severance application to only the stand-alone fraud and the extortion counts. While the circumstances

of the fraud count did not lead to any charges relating to sexual misconduct, the situation did involve allegations of a similar pattern of manipulative conduct and false representations as with the other victims, in order to gain access to a substantial amount of money and credit. [30] Mastronardi's controlling, manipulative, and highly peculiar pattern of behaviour was evident in his conduct towards all of the complainants. The fact that this type of conduct was prevalent in the stand-alone fraud charge with respect to one of the victims does not negate the significant factual nexus that it created between all of the victims regardless of the nature of the charges. In the circumstances of this case, the lack of identical charges for all of the victims does not, in my view, render inoperative the strong factual nexus between all of the counts including the other fraud counts. [31] A similar scenario was evident in R. v. Ward, 2010 ONCA 806, where the Ontario Court of Appeal found no error in denying trial severance on an indictment that included three fraud-related counts and eight sexual assault-related counts. The Court found no error in admitting similar fact evidence regarding the "controlling acts of the appellant", as that evidence was used to "explain the appellant's modus operandi". As was the case in Ward, the evidence in this case "relating to the two sets of charges

was inextricably intertwined" (paras. 11-12). [32] Similarly, while the Crown in this case did not charge the appellant with sexual assault of the victim in the extortion count, the circumstances of that count included allegations that the appellant secured sexual intercourse from the young and sexually naïve foreign student based on threats of having her deported and notifying her parents of her sexual activities. In these circumstances, I agree with the trial judge that it is unclear why the appellant also was not charged with the sexual assault of this victim (para. 252). In any event, the domineering character of the conduct then alleged, involving threats and emotional manipulation in order to obtain sexual favours, was consistent with the other allegations relating to the unique pattern of deceitful and manipulative conduct exhibited by the accused. [33] The application also applied for severance of the particularly brutal sexual assault count, on the grounds that its prejudicial effect on the jury would outweigh its probative value. The trial judge found that its potential prejudicial effect was not outweighed by its significant probative value. It was in this context that the trial judge commented that in his view any prejudice to the appellant from not severing the count could be remedied by a carefully crafted limiting instruction in accordance with the reasoning in R. v. Corbett, [1988] 1 S.C.R.

670. I do not take the trial judge to have decided that prejudice can always be remedied by a jury instruction, but rather that in the context of this case and the significant probative value of the common pattern of behaviour, any risk of prejudice could be minimized in that manner. [34] In light of the trial judge's ultimate determination that the evidence on the extortion count would not have met the test for similar fact evidence, the judge did not err in finding at the time of the severance application that it could possibly succeed on that test. In R. v. Blacklaws, 2012 BCCA 217, Chief Justice Finch (in dissent), as aff'd on appeal at [2013] 1 S.C.R. 403, found the failure to weigh the possibility that an application to adduce similar fact evidence might not succeed was not an error of principle at the time of the application: [42] The appellant is correct in saying that the test for admitting similar fact evidence is more stringent, and requires a closer legal and factual nexus, than the test for determining whether multiple counts should be joined or severed. However, the trial judge was not required to actually apply the test for admitting similar fact evidence during his deliberations on the severance application: he only had to assess whether it could "possibly" be met in the future. This is a considerably lower threshold, and I do not consider that the trial judge

made an error in finding that it was met in the circumstances of this case. [Emphasis added.] [35] The Chief Justice emphasized that a trial judge need not definitively predict the outcome of a similar fact application at the time severance is sought; rather, he or she need only determine whether a similar fact application "has some possibility of success, based on the submissions that the parties have already made" (para. 43), citing Last at paras. 33-34. The fact that a similar fact application may ultimately fail, as occurred in Blacklaws and with respect to the extortion count in this case, does not retroactively invalidate the judge's finding with respect to severance: "The question is whether it was reasonable, at the time of the severance application, for the judge to consider that a subsequent similar fact application could succeed. There is no requirement of certainty." (At para. 44.) These comments are directly applicable to the case at bar. The trial judge's assessment that the similar fact application might be successful with respect to the extortion count was, in my view, reasonable at the time and therefore attracts deference. [36] After the ruling on the severance application, the appellant re-elected to be tried by judge alone. Trial judges are trained to keep separate the evidence on individual counts. The trial judge in this case would have been alive to the

potential legal issues raised by multiple counts in an indictment and the need to ensure that the evidence on the sexual assault count at issue would not improperly influence him in determining whether the Crown had met its burden on the other counts. Significantly, in his reasons for judgment, he found that while the evidence on all of the counts, with the exception of the extortion count, would have been admissible as similar fact evidence based on the Handy test, it was unnecessary for him to have to resort to similar fact evidence in order to convict the appellant on all counts. That is because the central issue was credibility and he found each complainant very credible as a result of the very compelling, consistent and raw honesty of their evidence. [37] The appellant has not identified any error in principle or any failure to consider relevant factors on the part of the trial judge in dismissing the severance application. The judge received substantial written and oral submissions on the issue, and rendered a judicious decision. We were not pointed to anything that would suggest that the accused would testify on some counts and not others, or that any of the other relevant Last factors should be controlling. In the end, the trial judge fairly weighed the risk of prejudice from the sexual assault counts on the stand-alone fraud and extortion counts in considering the interests of justice test. In all of the circumstances, it cannot be said that the ruling resulted in an injustice. [38] The appeal is dismissed. "The Honourable Madam Justice D. Smith" I AGREE: "The Honourable Chief Justice Bauman" I AGREE: "The Honourable Madam Justice MacKenzie"