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CRIMINAL CODE OFFENCES - Fraudulent transactions relating to contracts and trade - Fraud over $5,000

Wednesday, August 16, 2017 @ 10:13 AM  

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Appeal by Dieckmann and Salmon from conviction and sentence for charges of fraud over $5,000. Dieckmann was charged with seven counts of fraud over $5,000 and Salmon was charged with one count of fraud over $5,000. The Crown alleged that the appellants, along with co-conspirators, operated a scheme to divert millions of dollars from the Canadian Revenue Agency (CRA) to their personal use. A jury convicted the appellants on all counts. The trial judge sentenced Dieckmann to four years’ imprisonment and imposed a fine of $1,285,930 in lieu of forfeiture. In default of payment of the fine, Dieckmann received an additional five years in jail. The trial judge sentenced Salmon to two years, less one day in jail, and imposed a fine of $397,758 in lieu of forfeiture. In default of payment, Salmon received three years’ consecutive. Dieckmann and Salmon appealed on several grounds, alleging evidentiary errors and errors in the jury instructions. Dieckmann also alleged that her right to trial within a reasonable time was violated and she challenged the holding that the defence could not rely on issue estoppel to preclude the Crown from leading certain evidence. Dieckmann sought to reduce her custodial term and argued that the trial judge should not have imposed a fine in lieu of forfeiture. Salmon submitted that the trial judge erred in not imposing a conditional sentence of two years, less one day.

HELD: Appeals dismissed. The delay in the case was justified based on the parties’ reasonable reliance on the law as it previously existed. The application judge did not err in finding the delay justified under pre-Jordan law. This was a complex case involving, at the outset, six co-accuseds, problems involving unrepresented accuseds, extensive productions including 100 banker’s boxes of documents, more than a dozen judicial pre-trials in the Ontario Court of Justice, a preliminary inquiry that spanned almost five months, a further 15 judicial pre-trials in Superior Court and culminating in three months of pre-trial motions and three months of trial. In addition, there was extensive defence delay to accommodate defence counsel’s schedule and further delay arising as a result of an unfortunate mistrial. With respect to issue estoppel, the Court agreed with the result reached by the trial judge. The same question was not decided in two proceedings. In the civil proceeding, the matter in issue was Dieckmann’s obligation under the Income Tax Act to remit funds to the CRA. In the criminal proceeding, the matter in issue was Dieckmann’s misappropriation of the remittances owing to the government. The manner in which the trial judge chose to review the evidence with the jury was not a model of effective communication. However, counsel for the appellants did not satisfy the Court that the jury would not have fully appreciated the relationship between the evidence led and the crucial question of whether the appellants were aware of the fraudulent nature of the scheme in which they were involved. The trial judge’s failure to allow counsel for Dieckmann to lead evidence of a consent judgment entered in the Tax Court occasioned no substantial wrong or miscarriage of justice. The evidence was not probative of anything related to the alleged fraud. In addition, the jury instruction given adequately protected Salmon’s right to a fair trial. The four-year sentence imposed on Dieckmann was not disturbed. Dieckmann played a central role in a large-scale, long-term fraud on the public purse. Greed was her motivator. The case law was clear that individuals like Dieckmann could expect significant penitentiary sentences, even in the face of strong mitigating factors. The sentence imposed on Salmon was appropriate absent an error in principle or a material misapprehension of evidence impacting the sentence. There was nothing to justify on intervention on these grounds. While the trial judge erred in applying traditional sentencing principles, it was open to her to exercise her discretion as she did. Sentence: For Dieckmann, four years’ imprisonment; $1,285,930 fine; for Salmon, two years less one day’s imprisonment; $397,758 fine.

R. v. Dieckmann, [2017] O.J. No. 3499, Ontario Court of Appeal, D.H. Doherty, P.S. Rouleau and S.E. Pepall JJ.A., July 5, 2017. Digest No. TLD-August142017007