R. v. Pun

R. v. Pun Collection Decisions of the Court of Appeal Date 2018-03-13 Neutral citation 2018 ONCA 240 Docket numbers C63042 Judges Pardu, Gladys I.; Benotto, Mary Lou; Nordheimer, Ian V.B. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pun, 2018 ONCA 240 DATE: 20180313 DOCKET: C63042 Pardu, Benotto and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Yuk Yee Pun Appellant Marie Henein & Christine Mainville, for the appellant Rachel Young, for the respondent Heard: March 8, 2018 On appeal from the conviction entered on August 25, 2016 and the sentence imposed on January 26, 2017 by Justice Nyron Dwyer of the Ontario Court of Justice, sitting without a jury. REASONS FOR DECISION [1] Ms. Pun appeals from her conviction for fraud over $5,000. She also seeks leave to appeal the sentence of 30 months that was imposed and, if leave is granted, asks for the sentence to be reduced. [2] The basic facts are that Ms. Pun convinced the complainant to invest with her the sum of $620,000 for the purpose of buying some land. The purchased land was then to be resold to a third party at a profit which would be shared between the appellant and the complainant. [3] The complainant advanced the $620,000 to the appellant but no land was purchased. Rather, a different land transaction was proposed but that too did not happen. Then, over a period of months, promises were made by the appellant that a deal would be done but that never materialized. Despite assurances from the appellant that his monies would be returned, that also never happened. [4] The only evidence at trial was from the complainant. The trial judge found the complainant to be a “credible and reliable” witness. The trial judge also found that there was no evidence that the monies provided to the appellant were ever used for any type of real estate transaction. Rather, as found by the trial judge, the monies simply “vanished”. [5] The trial judge rejected the defence that this was just a business deal that went bad. The trial judge found that the appellant had no intention of following through with the transaction that she used as the incentive to get the complainant to forward the monies to her. [6] The appellant submits that the trial judge erred by: (i) reversing the onus of proof by starting his analysis with the proposition that there was no “competing narrative”; and (ii) failing to conduct a credibility and reliability analysis of the lone witness at trial. [7] The appellant refers to the trial judge’s use of the phrase “no competing narrative”. The appellant submits that these references reflect an improper reversing of the burden of proof by the trial judge. The appellant says that this conclusion is evident from the exchanges that occurred between the trial judge and defence counsel during closing submissions. [8] We reject the defence submission that we should interpret the trial judge’s reasons by reference to the trial judge’s remarks during closing submissions. A trial judge speaks through reasons for decision. An appeal is from reasons, not from the judge’s comments during submissions. That said, even if we were to consider the exchanges in this case, we do not see them as establishing that the trial judge improperly reversed the burden of proof but, rather, that he was attempting to fairly understand the appellant’s submissions. [9] In our view, when the trial judge made references to a competing narrative, and to the lack of other evidence, he was focussing on the need for there to be a plausible theory other than the one consistent with guilt. That is the principle established in many cases, including R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 where Cromwell J. said, at para. 37: When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. [10] The trial judge concluded that the complainant intended to invest in a land transaction and rejected the defence contention that this was just a failed business loan. Those conclusions were available to him on the record. He was correct in concluding that there was no evidence to substantiate the suggestion that, in some fashion, the uncompleted land transaction turned into an agreement by the complainant to provide money to the appellant for general investment purposes. His reference to the lack of evidence to support such a suggestion was not improper. It was consistent with the use of that expression as set out in R. v. Noble, [1997] 1 S.C.R. 874 where Sopinka J. said, at para. 78: Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. [11] Lastly, the appellant submits that the trial judge failed to give adequate reasons for finding the complainant to be “credible and reliable”. We do not agree. The trial judge saw and heard the complainant. His reasons, taken as a whole, adequately explain why he found the complainant to be believable on the central issue, that is, that he advanced monies to the appellant for a land transaction and not for general business purposes. In considering the trial judge’s conclusion in this regard, we are mindful of the observation that has been made in a number of cases on the difficulty of enunciating the reasons why a witness may or may not be believed. As Bastarache and Abella JJ. said in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [12] In the end result, the trial judge correctly stated the law on what constitutes fraud. He made the necessary factual findings to conclude that the legal requirements for a conviction for fraud were made out. There is no basis for this court to interfere with those findings. [13] In terms of the sentence appeal, the sentence of 30 months imposed is within the range of sentence for frauds of this nature: R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.). Indeed, it would be at the low end of that range. The trial judge properly considered all of the aggravating and mitigating circumstances in this case. Again, there is no basis to interfere with his conclusion on sentence. [14] The appeal against conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed. “G. Pardu J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”