He allegedly argued that if the victim is Jamaican and family, then it is not an offence. James Solar (the “accused”) is charged with five offences, as follows: 1) On or about August 20, 2003 at Saskatoon in the Province of Saskatchewan, did steal, money the property consisting of photos, photography, underwear and watches of the Estate of Nick Regush of a value exceeding five thousand dollars contrary to section 334(a) of the Criminal Code [(the “Theft Over $5,000 Charge”)]; and further 2) On or between October 5, 2002 and April 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did being a trustee, convert with intent to defraud and in contravention of his trust, money belonging to the Estate of Nick Regush to a use that is not authorized by the trust contrary to section 336 of the Criminal Code [(the “Breach of Trust Charge”)], and further 3) On or between February 24, 2004 and April 13, 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did without lawful excuse disobey the lawful order made by Chief [sic] Justice Klebec [sic], the Court of Queen’s Bench on February 26, 2004 to deliver all cash from the Estate of Nick Regush, forthwith contrary to section 127 of the Criminal Code [(the “Disobeying a Court Order Charge”)]; and further 4) On or about June 28, 2003 at Martensville in the Province of Saskatchewan did steal money the property of the Estate of Nick Regush, of a value not exceeding five thousand dollars and did hereby commit theft contrary to section 334(b) of the Criminal Code [(the “Theft Under $5,000 Charge”)]; and further 5) On or between October 5, 2002 and April 13, 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did by deceit, falsehood or other fraudulent means defraud the Estate of Nick Regush of money, of a value exceeding five thousand dollars, by other fraudulent means contrary to section 380(1) of the Criminal Code [(the “Fraud Charge”)]. R v Solar, 2012 SKQB 113 (CanLII). Click here for more.
R v Solar, 2012 SKQB 113 (CanLII)
Date:
2012-03-16
File number:
N.J. No. 9/2011
Other citation:
392 Sask R 167
Citation:
R v Solar, 2012 SKQB 113 (CanLII), <http://canlii.ca/t/fqqw6>, retrieved on 2019-12-04
QUEEN’S BENCH FOR SASKATCHEWAN
Citation: 2012 SKQB 113
Date: 2012 03 16
Docket: N.J. No. 9/2011
Judicial Centre: Saskatoon
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JAMES WILLIAM SOLAR
Appearances:
Robin D. Ritter and Darren W. Howarth for the Crown
James William Solar on his own behalf
JUDGMENT GABRIELSON J.
March 16, 2012
Introduction
1) On or about August 20, 2003 at Saskatoon in the Province of Saskatchewan, did steal, money the property of the Estate of Nick Regush of a value exceeding five thousand dollars contrary to section 334(a) of the Criminal Code [(the “Theft Over $5,000 Charge”)]; and further
2) On or between October 5, 2002 and April 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did being a trustee, convert with intent to defraud and in contravention of his trust, money belonging to the Estate of Nick Regush to a use that is not authorized by the trust contrary to section 336 of the Criminal Code [(the “Breach of Trust Charge”)], and further
3) On or between February 24, 2004 and April 13, 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did without lawful excuse disobey the lawful order made by Chief [sic] Justice Klebec [sic], the Court of Queen’s Bench on February 26, 2004 to deliver all cash from the Estate of Nick Regush, forthwith contrary to section 127 of the Criminal Code [(the “Disobeying a Court Order Charge”)]; and further
4) On or about June 28, 2003 at Martensville in the Province of Saskatchewan did steal money the property of the Estate of Nick Regush, of a value not exceeding five thousand dollars and did hereby commit theft contrary to section 334(b) of the Criminal Code [(the “Theft Under $5,000 Charge”)]; and further
5) On or between October 5, 2002 and April 13, 2004 inclusive, at Warman and Saskatoon in the Province of Saskatchewan did by deceit, falsehood or other fraudulent means defraud the Estate of Nick Regush of money, of a value exceeding five thousand dollars, by other fraudulent means contrary to section 380(1) of the Criminal Code [(the “Fraud Charge”)].
[2] The accused elected trial by Queen’s Bench judge. The trial took place on March 5 to 12, 2012. The Crown called eights witnesses, including Kelly Kozak, Cpl. Trevor Ellis, Greg Kozak, Orlene Kozak, Joanne Kitchen, Crystal Zank, Don Dyck, Alex Solar and David Hnatyshyn, Q.C. The accused called two witnesses, Lillian (Alice) Regush and Ronald Parchomchuk. My decision was reserved.
Background
[3] The charges arise out of the accused’s handling of the estate of Nick Regush (the “Estate”). Nick Regush died October 5, 2002. He left a will dated August 19, 1997 (the “Will”) (Exhibit P‑2). The Will was prepared by the accused, who at all times material operated a business known as “Solar Consulting Services”, which business had an office in Warman, Saskatchewan. His business card (Exhibit P‑7), indicates that the accused has a Bachelor of Commerce degree and offers services in income tax, tax consultation, GST, NISA, wills, land transfers, notary public, estate executions and legal agreements. In the Will, Nick Regush appointed the accused and Michael Regush as executors. Michael Regush was the deceased’s brother and lived at White Rock, British Columbia. The Will contained a number of specific bequests and provided that the residue of the Estate would be shared equally between the deceased’s daughter, Orlene Kozak, and his grandsons, Greg Kozak and Kelly Kozak.
[4] The co‑executor, Michael Regush, signed a renunciation of probate on July 31, 2003 (Exhibit P‑1). The accused, as the remaining executor, filed an application for probate on August 21, 2003 (Exhibit P‑2). On September 2, 2003, Barclay J. issued a fiat that Lillian Regush, the widow of Nick Regush, be given 45 days’ notice of the application and that she be served personally. In October 2004, Orlene Kozak, the deceased’s daughter, applied to have the accused removed as executor of the Estate on the grounds that he had been dilatory in his duties as executor. In her application, she asked to be appointed as administrator with will annexed. On February 26, 2004, Klebuc J. (as he then was) granted the application of Orlene Kozak. Justice Klebuc’s order (the “Order”) (Exhibit P‑32) appointed her as administratrix of the Estate of Nick Regush and ordered that the accused “forthwith deliver all documents, negotiable instruments, cash, papers, property, and any other effects of Nick Regush, or which relate to the Estate of Nick Regush and the Respondent’s administration of same to the Applicant.” The accused applied for leave to appeal the Order, which leave was denied by the Saskatchewan Court of Appeal on March 24, 2004. On or about April 14, 2004, the accused delivered some Estate documents, including a handwritten accounting marked as Exhibits P‑72, P‑73 and P‑74, and a cheque in the amount of $11,301.26 to the Hnatyshyn law firm, who were counsel for Orlene Kozak.
[5] Once Orlene Kozak was appointed administratrix of the Estate, she felt that there was money missing from the Estate and/or that money had been misappropriated by the accused. She therefore went to the Warman detachment of the Royal Canadian Mounted Police (the “RCMP”) at some point in 2004. The RCMP commenced an investigation, and an information concerning the five charges was sworn out on December 11, 2008.
The Positions of the Crown and the Accused
[6] The Crown’s position is that all counts, except Count 3, are related. The Crown submits that Count 2, being the Breach of Trust Charge, encompasses all the activities of the accused. Crown counsel submitted that the Crown had proved beyond a reasonable doubt all of the elements of all five offences but submits that a finding of guilt on Count 2 (the Breach of Trust Charge) should result in a judicial stay on Count 1 (the Theft Over $5,000 Charge), Count 4 (the Theft Under $5,000 Charge) and Count 5 (the Fraud Charge). Crown counsel also asked for a finding of guilt on Count 3 (the Disobeying a Court Order Charge).
[7] The accused, who represented himself, submitted in final arguments that he carried out his duties as executor appropriately and that he accounted for all of the Estate assets. He submitted that he provided services to the Estate as an executor, an accountant and as well provided legal services necessary to the Estate. He submitted that he was therefore entitled to submit invoices for these services and deduct monies from the Estate account to pay the invoices. He submitted that he prepared a final statement of the accounts and forwarded it to the Hnatyshyn law firm, together with the balance of the monies left in the Estate account. He submitted that all his actions in connection with the Estate were appropriate.
Analysis
(1) It is trite to say the accused is presumed innocent and that the Crown must prove beyond a reasonable doubt all of the essential elements of the offences for which he is charged.
(2) I have taken into account the principles set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, that I must give the accused the benefit of the doubt if the evidence does not establish guilt beyond a reasonable doubt, and I must make my determination based on reason and common sense and based upon the evidence provided.
Count 2: The Breach of Trust Charge
[9] As requested by the Crown, I will consider the Breach of Trust Charge (Count 2) first. Section 336 of the Criminal Code provides:
336. Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[10] For the accused to be found guilty of a breach of trust, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
(1) that the accused was a trustee of some thing;
(2) that the accused converted the thing to an unauthorized use; and
(3) that the accused intended to defraud.
The first two elements are the actus reus of the offence of breach of trust, and the third is the mens rea. I will deal with each separately.
“trustee” means a person who is declared by any Act to be a trustee or is, by the law of a province, a trustee, and, without restricting the generality of the foregoing, includes a trustee on an express trust created by deed, will or instrument in writing, or by parol;
[12] In this case, I find that the accused became a trustee pursuant to the Will of Nick Regush when he was appointed as executor. Upon the death of Nick Regush, the accused represented to the Bank of Montreal and to the Court in an application for probate that he was the executor of the Estate and was acting in that capacity.
[13] In respect to the second element, I am satisfied that the Crown has proven beyond a reasonable doubt that the accused converted property owned by the Estate, being money, for unauthorized uses in the form of both retaining cash that ought to have been part of the Estate and, also, in the form of paying himself unauthorized sums of money in respect to exorbitant invoices which he submitted to the Estate. In respect to the cash in the Estate, I find based upon the evidence that at the date of his death, Nick Regush had a safety deposit box in the Bank of Montreal, Sutherland Branch (the “Bank”), in which there were a number of envelopes which contained cash totalling $32,895. On August 20, 2003, the accused removed this cash from the safety deposit box at the Bank. On August 21, 2003, the accused opened a safety deposit box in his own personal name at the Martensville branch of the FirstSask (later Affinity) Credit Union (the “Credit Union”). While there is no direct evidence that he placed the cash he removed from the safety deposit box owned by the Estate at the Bank, I find that the totality of the evidence can lead to no other conclusion. My reason for finding this is that, unbeknown to the accused, the cash in the envelopes found in the safety deposit box at the Bank had been counted by the other executor Michael Regush in the presence of Orlene Kozak, Greg Kozak, Kelly Kozak and Don Dyck on October 7, 2002. They found almost all of the money to be in $100 bills. Beginning in November 2003, and corresponding with dates that the accused had access to the safety deposit box at the Credit Union (Exhibits P‑27 to P‑31), the accused began depositing $100 bills in an account at the Credit Union in the name of his business, Solar Consulting. The accused’s final Estate accounts, which he forwarded to the Hnatyshyn office on approximately April 14, 2004, do not refer specifically to the cash removed from the safety deposit box at the Bank on August 20, 2003, although such documents do reference that the Estate had $32,000 in cash.
[14] I also find that the accused also rendered invoices to the Estate in the name of Solar Consulting and paid these invoices from Estate assets. A copy of the final statement of assets filed with the application for letters of administration by Orlene Kozak (Exhibit P‑85) indicates that the assets of the deceased set out in Part I of the statement of assets, which are assets to be administered by the personal representative, total $232,416.20, of which $114,900.00 represented the value of the house owned by the deceased, $10,689.00 in the form of Canada Savings bonds, $86,415.15 in form of bank accounts and cash and $24,412.15 in miscellaneous. The value of the assets set out in Part II of the schedule of assets, being that property held jointly and not passing through the Estate, totalled $155,868.00. Notwithstanding that the Will provided for an executor’s fee of 1.5 percent, the accused paid to himself, his business or his brother in excess of $46,000. I find that the services rendered by the accused on behalf of the Estate did not justify this amount in fees based upon the evidence of David Hnatyshyn, Q.C., and the executor’s fee of 1.5 percent provided for in the Will. None of the beneficiaries of the Estate were ever consulted about, agreed with or approved these payments. Accordingly, I find that the Crown has established beyond a reasonable doubt that the accused converted Estate funds for his own purposes. Combined with the fact that he was a trustee, I find that the Crown has proven beyond a reasonable doubt the actus reus of the offence of breach of trust.
[15] The real issue in this case is whether the Crown has proven beyond a reasonable doubt the mens rea, whether the accused intended to defraud the Estate.
[16] There are very few reported cases involving criminal acts by executors in respect to their administration of estates. Two such cases which I considered were R. v. Saunders (2000), 189 N.S.R. (2d) 43, aff’d 2001 NSCA 87 (CanLII), 194 N.S.R. (2d) 48; and R. v. Singleton, 2010 BCSC 1734 (CanLII), [2010] B.C.J. 2439 (QL). In both of those cases, the executors were lawyers who were convicted of theft when they took money from the estates that they were administering and converted it to their own uses.
[17] The only Saskatchewan case that I was able to find, in the short time available for this judgment, which dealt with the charge of breach of trust is R. v. Gopher, 2005 SKQB 243 (CanLII), 265 Sask.R. 1. Based on that case and also the cases of R. v. Petricia, 1974 CanLII 1529 (BC CA), [1974] 4 W.W.R. 425, 17 C.C.C. (2d) 27 (B.C.C.A.), and R. v. Sopko (1991), 1991 CanLII 11912 (MB QB), 74 Man.R (2d) 34 (Q.B.), referred to by Justice Baynton in the Gopher case, I find that the mens rea which must be proven beyond a reasonable doubt by the Crown is an intent on the part of the accused to defraud the trust which had been created when he was named executor of the Estate.
[18] I am satisfied that the conduct of the accused in removing the cash found in the safety deposit box owned by the deceased at the Bank and placing it in a safety deposit box owned by the accused in his personal capacity at the Credit Union, when combined with the intermittent removal of $100 bills from his personal safety deposit box at the Credit Union and deposit in his business account, provides an overwhelming inference that the accused intended to defraud the Estate of these funds. It is further very significant that the accused did not even refer to the cash that he had removed from the safety deposit box at the Bank on August 20, 2003, when he filed his application for probate of the Estate the very next day, August 21, 2003. In his application for probate (part of Exhibit P‑2), he filed his own personal affidavit sworn that same date, August 21, 2003, paragraph 3 of which states as follows:
3. Attached hereto and marked as exhibit “C” is a statement showing all the property owned by the deceased at the time of death; such statement truly and correctly, in so far as it has been possible to ascertain, sets forth all the property of the deceased showing the fair market value of thereof at death.
In the statement of property which is marked as Exhibit “C”, there is no reference to the cash in the amount of $32,895 which the accused found in the safety deposit box at the Bank on the previous day. Although the accused, in closing argument, suggested that this was an oversight or error because the documents had been typed at an earlier date, he called no evidence to establish such a fact. In any event, I would not have accepted such an explanation in light of the fact that the affidavit was sworn only one day after he removed the money from the Estate’s safety deposit box at the Bank.
[19] I am therefore satisfied that the Crown has established beyond a reasonable doubt that the accused intended to defraud the Estate of this cash and that it was only once the existence of the cash was made known by Orlene Kozak that the accused prepared the inflated and unsubstantiated invoices in order to justify his deposits of the cash in his business’s account.
Count 1: The Theft Over $5,000 Charge
(1) that the accused took or converted property to his own use that belonged to the Estate;
(2) that the accused had no legal right to the Estate’s property;
(3) that the accused took the Estate property fraudulently and without colour of right;
(4) that when the accused took the Estate property, he meant to deprive the Estate at least temporarily of the property or the Estate’s interest in it; and
(5) that what the accused took was worth more than $5,000.
[22] In this case, as outlined above, I am satisfied beyond a reasonable doubt that the actus reus of the offence of theft over $5,000 occurred when the accused removed the cash from the safety deposit box at the Bank and deposited it in his own safety deposit box at the Credit Union and then converted some of the money to his own use by depositing it in his business account. The beneficiaries of the Estate were deprived of this money, which was in excess of $5,000.
[23] The mens rea of the offence is whether the accused took the money fraudulently and without colour of right and intended to deprive the beneficiaries of the Estate of this money. See R. v. Dorosh, 2003 SKCA 134 (CanLII), [2004] 8 W.W.R. 613 at para. 14.
[24] In this case, I am satisfied that the Crown has established beyond a reasonable doubt these three requirements. The fraudulent intent of the accused at the time of taking the money can be inferred by virtue of the fact that he placed it in his own personal safety deposit box, rather than the Estate account at the Credit Union. Furthermore, he did not refer to it in the application for probate. The absence of any colour of right is established when one considers how he places the money in his own safety deposit box and then periodically transfers it to his own business account without authorization and without recording such transfer. The final element of intent to deprive the Estate of the money has also been established when one considers that, rather than return the money to the Estate, he attempted to justify the taking of the money by creating inflated invoices for services that were either not rendered or did not justify the fee charged.
[25] I am therefore satisfied that the Crown has established beyond a reasonable doubt that the accused is guilty of Count 1. However, in accordance with the principles established in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, I will enter a conditional stay in respect to this charge because it arises from the same set of circumstances as those of which I have found the accused guilty in respect to Count 2.
Count 4: The Theft Under $5,000 Charge
[26] Crown counsel submits that this charge relates to a cheque dated June 5, 2003, from the Government of Canada to the Estate of Nick Regush in respect to an income tax refund, which was deposited by the accused into the account of Solar Consulting Services on June 26, 2003, rather than into the Estate’s account. The Crown therefore submits that the accused converted this money to his own use and did so fraudulently and without colour of right. The accused submits that while he did deposit this money into his business account, he accounted for this sum when he submitted an invoice dated January 14, 2004 (Exhibit P‑19) and gave credit on this invoice in the amount of $916.20 against the amount owing on the invoice.
[27] The elements of the Theft Under $5,000 Charge are the same as those concerning the Theft Over $5,000 Charge, with the exception of the amount which, of course, in respect to the “theft under” charge must be an amount under $5,000. I am satisfied that the Crown has proven the essential elements of this offence beyond a reasonable doubt. There is no evidence as to why the accused would have deposited the cheque into his business account in June 2003 rather than into the Estate account, which had been opened shortly after Mr. Regush’s death in 2002. The fact that this sum is not listed on the statement of property, which the accused filed with the Court on August 21, 2003, at the time of his application for probate, is significant since he listed other amounts paid to the Estate, such as the CPP benefit. The fact that he ultimately credited the sum of $916.20 to an invoice dated January 14, 2004 (which was eight cents short of the original amount), does not explain or excuse his conversion of this money in the first instance. In my opinion, the invoices which were dated in January and February 2004 were created by the accused after the Order, which removed him as executor and ordered that he turn over the Estate documents to Orlene Kozak, and were an attempt by him to justify his earlier conversion of money otherwise belonging to the Estate. I therefore find the accused guilty of Count 4 but, in accordance with the manner in which I dealt with Count 1, I order a conditional stay in respect to this charge based upon the principles found in R. v. Kienapple, supra, because this offence is subsumed in the broader offence of breach of trust.
Count 5: The Fraud Charge
(1) that the accused deprived the Estate of something of value;
(2) that the accused, by deceit, falsehood or other fraudulent means, cause the deprivation;
(3) that the accused intended to defraud the Estate; and
(4) that the value of the property exceeded $5,000.
[29] In the case of R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5 at 19, the Supreme Court of Canada outlined both the actus reus and the mens rea of the offence of fraud. The Court stated:
... 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 (see Williams [Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983)], c. 3), 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.
[30] In this case, I am satisfied that the Crown has proven beyond a reasonable doubt dishonest acts by the accused of taking the cash belonging to the Estate from the safety deposit box at the Bank and placing it in a safety deposit box in his own name at the Credit Union and subsequently depositing a large amount of the cash taken into his business account at the Credit Union. In my opinion, that the accused intentionally committed the prohibited act and intended to defraud the Estate is established by the fact that he made no reference to the cash in the statement of property he filed with the Court on August 21, 2003, and that he made deposits from the cash to his business account throughout November and December 2003, all without disclosure to or authorization from the beneficiaries of the Estate. In my opinion, his actions lead to no other inference than he intended to defraud the beneficiaries of the Estate. Accordingly, the Crown has proven beyond a reasonable doubt that he would be guilty of the offence of fraud. However, once again, based on the principles set out in R. v. Kienapple, supra, I will enter a conditional stay in respect to this charge because it arises from the same set of circumstances as those pursuant to which I have found the accused guilty of breach of trust pursuant to s. 236 of the Criminal Code.
Count 3: The Disobeying a Court Order Charge
127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; ...
...
[32] The essential elements of this offence which the Crown must prove beyond a reasonable doubt are:
(1) that the accused disobeyed a lawful order of the Court;
(2) that the accused was without a lawful excuse;
(3) that the accused intended to disobey the order of the Court; and
(4) that the order was for payment other than money.
[33] The Crown’s position is that the accused disobeyed the Order of Justice Klebuc dated February 26, 2004. The Crown’s submission is that the Order required the accused to turn over the Estate assets “forthwith” and that this was not done until April 14, 2004. The Crown’s submission is that the accused continued to invoice the Estate after February 26, 2004, for services rendered by Solar Consulting as shown by four invoices (Exhibits P‑67, P‑68, P‑69 and P‑70) rendered for services performed after February 26, 2004.
[34] The accused submits that he applied for leave to appeal the Order and that until such time as the application was heard, he remained the executor nominated in the Will. Alternatively, he suggests that he had to complete his executor’s accounts which are outlined in Exhibits P‑72, P‑73 and P‑74 so that the solicitors for the new administrator would be aware of what he had done. Finally, he submits that he complied with the Order and forwarded all Estate documents, including a cheque for $11,301.26, being the balance of funds in the Estate account on April 14, 2004, which would be within a reasonable time to have done so.
IT IS HEREBY ORDERED AND DIRECTED:
...
3. That the Respondent, James W. Solar, shall forthwith deliver all documents, negotiable instruments, cash, papers, property, and any other effects of Nick Regush, or which relate to the estate of Nick Regush and the Respondent’s administration of the same to the Applicant. In particular, but not so as to restrict the generality of the foregoing, the Respondent shall forthwith deliver all bank statements, cancelled cheques, deposit slips, and notes regarding deposits, a list of the safety deposit box contents at both the Scotiabank and the Bank of Montreal, a list of safety deposit box attendances, all Nick Regush’s personal records and Income Tax Returns filed prior to the date of his death, and all documents prepared by the Respondent respecting Nick Regush’s estate since the date of Nick Regush’s death.
[36] I am not satisfied that the Crown has proven beyond a reasonable doubt either the actus reus or the mens rea required in respect to this offence. There are very few cases in which criminal charges are laid in respect of breach of court orders or at least in which court decisions regarding such charges are reported. In the case of R. v. StarPhoenix 911909, 2003 SKCA 108 (CanLII), [2004] 3 W.W.R. 639, the Saskatchewan Court of Appeal dealt with an appeal by the StarPhoenix from a conviction for disobeying a publication ban order. In dismissing the appeal, the Court dealt with the actus reus and the mens rea of the offence. In reference to the actus reus, the Court held that it was conceded that the publication ban was a lawful order of the Court and was made for the purpose of ensuring a fair trial and that the StarPhoenix had published information not previously released to the public. In terms of dealing with the mens rea, the Court stated at paragraph 18:
18 The issue here is whether the Crown has proved that the appellant intended to cause the external consequences – that is, potentially prejudicing the fairness of the trial of the co‑accused. The crux of the matter is whether the appellant published the article with the intent, common knowledge or recklessness of publication that is, with the result that the public disobedience would tend to depreciate the authority of the court.
[37] In this case, although the Crown has proven that the accused did not deliver the Estate documentation until April 14, 2004, in my opinion the Crown has not established that the delay in delivery was without lawful excuse or that the accused intended to disobey the lawful Order of the Court. In this case, the accused instructed his legal counsel to apply for leave to appeal the Order. The application for leave to appeal was filed within 15 days and was heard and determined on March 24, 2004. Although the accused did not testify and therefore I do not have the benefit of his thought process, I infer that he then intended to comply with the Order because he prepared the documents Exhibits P‑72, P‑73 and P‑74, which were his attempts at reconciliation of the Estate accounts and forwarded them together with the Estate documentation to Orlene Kozak’s counsel, Hnatyshyn & Company. The time he took to do so between March 24, 2004, and April 14, 2004, is not so long as to show a deliberate intent to disobey or avoid the Order. Accordingly, I find the accused not guilty of Count 3.
Conclusion
[38] In conclusion, I have found the accused guilty of Count 2, the Breach of Trust Charge, and not guilty of Count 3, the Disobeying a Court Order Charge, and I have ordered a conditional stay in respect to Counts 1, 4 and 5.
J.
N.G. Gabrielson
Comments
Post a Comment