R v Tourangeau and Marie, 2006 NWTTC 10 (CanLII)
Date:
2006-10-13
File number:
T-2-CR-2004-001960; T-2-CR-2004-001959
Other citation:
[2006] NWTJ No 66 (QL)
Citation:
R v Tourangeau and Marie, 2006 NWTTC 10 (CanLII), <http://canlii.ca/t/1pt9m>, retrieved on 2020-08-05
R. v. TANYA TOURANGEAU and R. v. VICTOR MARIE 2006 NWTTC 10 Files: T-02-CR-2004001959/1960 IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - TANYA TOURANGEAU and HER MAJESTY THE QUEEN - v - VICTOR MARIE REASONS FOR JUDGMENT of the HONOURABLE CHIEF JUDGE BRIAN A. BRUSER Heard at: Fort Smith, Northwest Territories Dates: December 16, 2005, April 12 & 13, 2006; and July 5, 2006 Decision Date: October 13, 2006 Counsel for the Crown: Mr. D. Littlefield Counsel for the Defence: Mr. S. Tarrabain, QC (Charged under s. 334 CC) IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTERS OF: HER MAJESTY THE QUEEN - v - TANYA TOURANGEAU AND HER MAJESTY THE QUEEN - v - VICTOR MARIE ______________________________________________________________________ 1. Introduction [1] I thank counsel for the care they have taken in presenting the evidence, the respect they have shown toward each other and to this Court, and for their thorough and very helpful oral and written submissions [2] The accused are charged separately on two informations. Each alleges one count of theft. The identical wording is that, On or between April 23rd, 2003 and July 23rd, 2003, at or near the Town of Fort Smith in the Northwest Territories, did steal Government of Canada cheques, the property of 4990 NT Ltd. of a value exceeding five thousand dollars contrary to Section 334 of the Criminal Code. [3] On consent, the evidence has been applied to both informations. [4] The trial took place in Fort Smith on December 16, 2005, April 12 and 13, 2006 and July 5, 2006. I reserved judgment until today following submissions on July 5. With permission of the Court, both counsel filed further written submissions after July 5. [5] The charges arose after the accused together opened an account in the name of a Northwest Territories numbered company, 4990 NT Ltd. at Peace Hills Trust in Edmonton, Alberta on July 21, 2003. The account was almost entirely emptied by Ms. Tourangeau the following day. [6] I begin with an explanation of what this trial is not about, followed by an examination of the evidence, an analysis of the issues, and my conclusions. 2. What This Trial Is Not About [7] This is not a civil trial. There are complex civil issues closely connected to the criminal issues. I have taken care to identify and separate the criminal issues and I have applied the onerous criminal burden of proof beyond a reasonable doubt. This burden rests solely with the Crown; the accused do not have to prove anything. [8] During the course of the proceedings, there have been suggestions of contempt of an order of the Federal Court of Canada. This trial is not about contempt of court. [9] These proceedings are not an opportunity to resolve who the lawful councillors of the Salt River First Nation 195 Band (“SRFN”) at Fort Smith were from time to time, although evidence of who the councillors were is a necessary part of the examination of the evidence. [10] This trial is not a forum in which to resolve who the lawful directors of 4990 NT Ltd. were from time to time, although evidence of who they were is a necessary part of the examination of the evidence. 3. The Evidence To appreciate the evidence, it is important to understand what the definition of theft is in section 322 of the Criminal Code: 3.1 The definition of theft [11] For the purposes of these proceedings, section 322 states: 322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent, (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it; … (2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable. (3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment. (4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material. 3.2 The relationship between the SRFN Band and 4990 NT Ltd. [12] In January 2002, James Schaefer and others incorporated 4990 NT Ltd. The company was properly registered with the Registrar of Corporations on January 11, 2002. The relationship between the band and the company was so close that it made sense to locate the offices and records of both in the same building. [13] It is not disputed that 4990 NT Ltd. was incorporated to conduct surveys related to land settlements of the SRFN. [14] On May 8, 2002, the Government of Canada, through its Department of Natural Resources, entered into a contract with 4990 NT Ltd. The contract, located at Tab 3 of Exhibit 9, was for an estimated cost of $74,048.28. The purpose of the contract is stated at page 120: STATEMENT OF WORK TITLE: Legal Survey of the Exterior Boundaries of the Salt River First Nation Settlement Agreement Lands located within Wood Buffalo National Park of Canada at the Little Buffalo, Pine Lake, Salt River & Parsons Lake Sites. [15] Paragraph 2.3.1 of the contract mentions the “First Nation Contact” to be “Chief Jim Schaefer, Salt River First Nation, Salt River, NT.” The survey work to be done by 4990 NT Ltd. for the Government of Canada was to benefit the government, the SRFN and the company. [16] Following incorporation of the company and until August, 2002, James Schaefer had various titles; Chief James Schaefer, President James Schaefer (4990 NT Ltd.) and Director James Schaefer (4990 NT Ltd.). He had inadvertently helped sow the seeds for strife. Conflicts loomed large, but were not in his field of vision. [17] In August 2002, Victor Marie was elected Chief of the SRFN. Norman Starr was elected as one of the councillors. These two are referred to in subsequent Federal Court litigation as the “undisputed councillors.” Several others were also elected as councillors. This latter group has been referred to as the “disputed councillors” in Federal Court litigation. [18] The close relationship between the SRFN and the company is evidenced in the cross-examination by defense counsel of James Schaefer during the April sittings in these proceedings. I begin at page 172 of the transcript, lines 24 to 26: Q. So that means that the Band paid for the incorporation, did they not? A. Yes. … Page 173, lines 4 to 8: Q. I asked you who paid for the corporations and you said you did. That’s what you said. A. I said the corporations did. They borrowed the money from the Band, and then it was all paid back, we paid over $70,000 back to the Band. … Page 173, lines 14 to 17: Q. So the corporations were incorporated by the Band, right? A. No, they paid for it, but that was borrowed from them. … Page 174, lines 8 to 11: Q. MR. TARRABAIN: In any event, you agree that these were incorporated by Salt River First Nation, weren’t they? At the beginning. A. They paid for the incorporation of them. … Page 175, lines 6 to 17: Q. Did you pay any rent? Did 4990 or 4991 pay any rent? A. No, we didn’t pay any rent. Q. Why? A. Nobody asked us to pay rent. If they ask for rent we would have paid it. Q. Well, who would have asked you? The Chief is going to ask the director, Jim Schaefer, to pay rent? So did you ever ask yourself to pay rent? A. No, Council would ask, not me. Q. Was that ever suggested? A. No, it was never suggested. … Page 176, lines 20 to 27: Q. They get the profits. The directors of the companies and the shareholders get the profits, right? A. No, the shareholders didn’t. If you look through it, the shareholders didn’t get the profits. Q. Who gets it? A. The members, Salt River First Nation members, the ones that we hire. … Page 177, lines 4 to 9: Q. I see. So when you gave a statement to the police back on December 11th of 2003, what did you mean when you said, “the benefit will go to the membership of the Salt River First Nation.” What did you mean by that? A. The people that work there, our membership. … Page 178, lines 9 to 24: Q. … What do you mean when you say, “the benefit will go to the membership of the Salt River First Nation.” That means the people that are members of the Band, right? A. That’s right. Q. It doesn’t say the members that are working for 4990 NT Ltd., does it, right? A. No, it doesn’t. Q. So you, at all times, were operating under the understanding that this was a Band-owned company, otherwise you would not have made that statement, right? A. Band-owned company? Q. Yes. A. You are dreaming again, sir. … Page 179, lines 5 to 17: A. They were all councillors at the time. Q. They were all councillors? A. Yes. Q. And you are the Chief? A. Yeah. Q. And this is not a Band-owned company? A. Yeah. Q. And then you go on to say “15 percent of profits are given to the SRFN Band Council to be paid out for annual per capita contribution.” What does that mean? A. It means if we make a good profit that we will do that. … [The answer: “They were all councillors at the time” means that all the directors of 4990 NT Ltd. were SRFN Band councillors.] Page 181, lines 8 to 21: Q. … So why would a company, privately owned by you and the councillors, be giving membership or giving 15 percent of that profit to the membership? Why? A. Because, members work and earn that money, so we have to give them something. Q. But what if the member doesn’t work and earn anything, does he get it? A. Yes, if we make a lot of money. Q. So you are being like Santa Claus? A. That’s right. Q. And why would you do that? A. Because I’m a good guy. … Page 184, lines 15 and 16: A. … the company is owned by five members of the Salt River First Nation. … Examination-in-chief by Crown counsel of Raymond Beaver, a former member of the SRFN Band Council, page 258, lines 12 to 17: A. 4990 I believe was set up to run surveying, the surveying for the Band. Like because we had to run it through a company, Indian Affairs said that the Band could not run it, we had to have a company running it and go through there, contract it out, and that’s what 4990 I believe was for. … Page 258, lines 20 and 21: Q. MR. LITTLEFIELD: And who was running 4990? A. Jim Schaefer. [19] In Exhibit 9, at pages 133 and 134 there is the following from the affidavit of James Schaefer in the course of Federal Court proceedings: 2. I was the Chief of the SRFN from February 3, 2000 to August 31, 2002. I stood for re-election but was defeated and replaced as Chief by Victor Marie. 3. While I was Chief it was decided by the SRFN Council that the economic development of the SRFN was not being helped by a series of failed SRFN controlled business ventures. In the area of firefighting a band controlled business, the Native Development Corporation (“NDC”) and subsequently a joint venture between the SRFN and the Métis, Thebacha Forestry, had both failed. It was therefore, decided that the only way to establish successful businesses was to have them be totally independent from the SRFN and controlled by people with proven business skills. 4. Sometime in late 2001 or early 2002 the SRFN Council told Ram Mudalier to incorporate a company to help set up an independent company, not owned by the SRFN, to do the firefighting work. Mr. Mudalier created 4991 NT Ltd. for that purpose. I remember that the following were the founders and directors of the company: Ken Laviolette, Melvin Wanderingspirit, Allan Schaefer, Ronnie Schaefer, and myself. … 6. The idea behind 4991 NT Ltd. was that the directors would direct any profits from the company in part to bonuses paid out to employees, managers and directors of the company, as well as up to 15% to the SRFN. The rest of the profit could be distributed to other projects that the directors felt would benefit the SRFN or reinvested in the company. Additionally 4991 NT Ltd. was to employ SRFN members first. [20] Although the affidavit of James Schaefer does not mention 4990 NT Ltd., the underlying purpose in creating 4991 NT Ltd., and its business objectives, shed light on why 4990 NT Ltd. was created. [21] Further assistance in understanding the relationship of the numbered companies to the SRFN is found in the affidavit of Ram Mudalier, sworn January 16, 2003, for use in the Federal Court action [Exhibit 9, beginning at page 141]: 1. I am the President of Viti Investments Ltd., which at all relevant times provided accounting, management, human resources and other consulting services to the Salt River First Nation 195 (“SRFN”), … 2. Finally, in January of 2002, it was decided by the SRFN Council that the business of firefighting should be pursued by a company controlled by SRFN members, but entirely separate from the SRFN or the SRFN Council. The concept was to use SRFN resources and influence to assist in the development of SRFN member owned independent business. Such businesses, if successful, would benefit the whole SRFN. 3. The SRFN Council asked me to facilitate the creation of such an independent company. I had 4991 NT Ltd. incorporated for that purpose. The shareholders were: James Schaefer, Ken Laviolette, Melvin Wanderingspirit, Allan Schaefer, and Ronnie Schaefer. The shares of the company were held by each of these individuals personally and NOT on behalf of the SRFN. Each of the shareholders also agreed to act as the directors of the company. [22] There is also the affidavit of Jeff Fraser, sworn January 17, 2003 for use in the Federal Court proceedings [Exhibit 9, pages 145 and 146]: 1. I was manager of 4991 NT Ltd. for the summer of 2002 … … 3. 4991 NT Ltd. is not affiliated with Salt River First Nation 195 (“SRFN”). From what I understand 4991 NT Ltd. is not owned by the SRFN. The Board of Directors were adamant to point out that 4991 NT Ltd. was in fact a separate entity from SRFN. I was seconded to 4991 NT Ltd. to manage the company until August 30, 2002. 4. I took my directions from the Board of 4991 NT Ltd. and not from the Chief and Council from SRFN. 3.3 The struggle for control of the SRFN Council and 4990 NT Ltd. [23] Not long after the election of Victor Marie as Chief in August 2002, the “disputed councillors” passed a resolution to dismiss him. To achieve this goal, a meeting of the membership of the Band was scheduled for a date in November 2002. At this meeting, the majority of the membership voted against the resolution with the result that Victor Marie remained as Chief. The examination-in-chief of Raymond Beaver discusses this aspect of the circumstances [April transcript, pages 251 to 254 beginning at line 14 on page 251]: Q. Mr. Beaver, I understand that you were at one point a member of the Salt River First Nation Band Council? A. Yes. … Q. … How about around 2002, was there an election in which you were elected? A. Yes, there was an election in August. Q. And at some point something happened where you were purported to be removed as one of the councillors? A. Yes, in November. Q. What happened in November? A. Well, the Council had set up a meeting with the membership to ask the membership what we were going to do with Victor Marie, the Chief at the time. Q. And had there been any resolution passed with respect to Chief Victor Marie by this August Council? A. Yes. Q. What was that? A. There was a vote of non-confidence at the Council meeting, Victor walked out of the meeting, and at that time we had asked him to come in, to come back to the meeting and he decided not to, so we voted to take him out, to remove him from authority. … Q. MR. LITTLEFIELD: And then what was to happen in this November meeting, from your understanding? A. Well, my understanding was to have the membership decide what should be done to Victor Marie at the time. Q. And was there a vote on the resolution that had been passed earlier to in essence remove Victor Marie as Chief? A. At the meeting? Q. Yes. A. … there was a vote, which of course we got defeated, and that’s when they removed us. Q. … And after then you and others were removed from the Council, were you involved in any litigation against the November Council? A. Yes. Q. And can you tell us a bit about that? A. After speaking to the other councillors, we were wondering about what could we do because of the way that we were removed. We didn’t believe it was right, so we called a couple of the lawyers and asked who we could talk to that would know more about what had happened. So then that’s how we went about it, we started looking into it then. … Q. MR. LITTLEFIELD: I take it then that you were involved in this lawsuit on behalf of essentially the August Council against the November Council to decide who really was the proper Council? A. Yes. Q. And on May 29th, 2003, there was an order reinstating the August Council? A. Yes. [24] After the November Council assumed power in November 2002, it hired Ms. Tourangeau to act as the band’s finance manager. [25] Some of Ms. Tourangeau’s personal circumstances are material. The significance of what follows will become more clear [April transcript, examination-in- chief, pages 314 and 315, commencing on page 314, line 13]: Q. And you are a member of the Salt River First Nation? A. Yes, I am. … Q. And I understand, Ms. Tourangeau, can you tell the Court by way of education, what is your educational background? A. I completed my grade 12 when I was 17, …I went on to take various college and university courses. I’m five courses away from completing my Bachelor of Business with the University of Alberta. I’ve also taken First Nation land and management training, I’m a certified land manager. On top of that I’ve taken various courses in psychology, governance, Band meetings, I can go on and on. Q. And I understand that you have been through a number of proceedings as a result of what took place back in 2002 and 2003? A. I’m aware of the proceedings, yes, and I have attended a few court proceedings. Q. And Ms. Tourangeau, you were working here for the Band? A. Yes, I was. Q. What was your position, please? A. I started off working with Jim Schaefer as Ram’s trainee, and by the end of working I was Victor’s assistant and the only person in the finance department. Q. Now, I want to ask you, you have heard of companies 4990, 4991, 4992, and matters such as that, but the one I’m interested in is the one that you have been charged for of theft. 4990 NT Ltd., what was your understanding that company was? A. Well, my understanding it was a Band-owned company. I was Ram’s trainee when the company was open. At pages 324 and 325 of the cross-examination, commencing at line 27 of page 324: Q. Ms. Tourangeau, were you involved with Ram in the creation of 4990 and 4991 and the other companies? A. Yes, I was. [26] As mentioned in paragraph 23, the August Council initiated an application in the Federal Court against the November Council. [27] The applicants sought a ruling that they had been improperly dismissed and an order for their reinstatement. They also sought the appointment of a receiver to manage the affairs of the SRFN. On January 10, 2003, Rouleau, J. issued a Freezing Order. This Order required the consent of counsel for both parties before payments could be made by the band for any non-payroll transaction. Relevant parts of the Order are found in Exhibit 9, at page 130: 2. … two (2) corporate bank accounts of 4991 NT Ltd. and 4992 NT Ltd. operating with the Bank of Montreal, Fort Smith, North West Territories, are hereby frozen until further order of this Court. 3. Various and other bank accounts which are being operated by the Band also at the Bank of Montreal, Fort Smith branch, North West Territories and being limited and are authorized to clear payments on the various accounts that pertain to payroll obligations and any and all other transactions should not be processed without the consent of counsel acting on behalf of the applicants and the respondents. [28] The companies referred to by number in the Order do not include 4990 NT Ltd. Nevertheless, an issue has arisen respecting the Bank of Montreal in Fort Smith; it is for this reason that I have reproduced parts of the Federal Court Order. [29] It has been part of the case for the defence that I must resolve whether 4990 NT Ltd. is a private company, or a band-owned company. The defence argues that without resolving the nature of the “ownership” of the company, which it calls a “paramount” issue, the actions and the intent of both accused and the defence of colour of right cannot be properly resolved. It is because of this argument, and the way the evidence unfolded, that I believe it is necessary to address this submission. To fail to do so would be to fail to address an argument that the defence claims to be essential to its case. [30] The defence says that the “ownership” evidence leads to a conclusion that 4990 NT Ltd. was “owned” by the SRFN, and not by private individuals. This, says the defence, is critical to understanding the intentions of the accused surrounding the opening of the account at Peace Hills Trust on July 21, 2003. [31] There has been evidence to the effect that 4990 NT Ltd. was not incorporated as a private company, but instead was incorporated on behalf of the band; hence the expression in evidence and in closing submissions: “band-owned company.” The rationale for this argument is that 4990 NT Ltd. and related numbered companies were set up to facilitate the interests of the SRFN. Evidence such as the location of the registered and business offices of 4990 NT Ltd., the mixing of its records with those of the band, the evidence that the councillors of the band were also directors of the company, are a few illustrations in support of the defence case that 4990 NT Ltd. was at all material times a band-owned company. [32] The struggle for control of 4990 NT Ltd. began shortly after its incorporation in January 2002. A chronology of events surrounding the struggle for control of 4990 NT Ltd. follows: (i) January 11, 2002: Incorporation of 4990 NT Ltd. with James Schaefer, Ken Laviolette, Melvin Wanderingspirit, Allan Schaefer and Ronnie Schaefer appointed to be the original directors [Exhibit 9, page 63]. (ii) May 28, 2002: The survey contract for $74,048.28 was entered into between 4990 NT Ltd. and the Department of Natural Resources of the Government of Canada [Exhibit 9, page 113]. (iii) August 30, 2002: The August Council consisting of Chief Victor Marie, Norman Starr, Melvin Wanderingspirit, Delphine Beaulieu, Raymond Beaver and Sonny MacDonald was elected. (iv) November 3, 2002: The November Council consisting of Chief Victor Marie, Norman Starr, Nora Beaver, David Gowans, Connie Benwell, Michel Bjornson, Harvey Lepine and Don Tourangeau was elected. (v) December 16, 2002: A lawyer by the name of Jerome N. Slavik wrote a letter on behalf of the November Council to Louis Sebert, a lawyer in Fort Smith, Northwest Territories in which Mr. Slavik indicated that the numbered companies were not private companies but were incorporated on behalf of the band. The material portions of the letter are reproduced below [Exhibit 9, page 66]: It is our understanding that the companies that you are referring to were incorporated on behalf of the Band and that the shares were held in trust for the SRFN First Nation. These corporations were maintained at the Band Office and were set up for the purposes of facilitating the interests of the First Nation. Accordingly the new Chief and Council have replaced the Shareholder Trustees and appointed new Directors. They will assume responsibility for the ownership and direction of the company on behalf of the First Nation. (vi) January 8, 2003: Business Corporations Act, Form 5, Notice of Change of Directors, was filed with the Registrar of Corporations [Exhibit 9, page 68]. The document shows that James Schaefer, Ken Laviolette, Ron Schaefer, Allen Schaefer and Melvin Wanderingspirit had ceased to be directors of 4990 NT Ltd. The document shows that Chief Victor Marie, Connie Benwell, David Gowans, Don Tourangeau, Nora Beaver, Michelle Bjornson, Harvey Lepine and Norman Starr replaced the former group of directors. In other words, the November Council became the new directors of 4990 NT Ltd. soon after they were elected. (vii) January 10, 2003: The Federal Court made an interim Order in the application by the August Council to have a receiver appointed [paragraph 27 above]. (viii) January 20, 2003: Jeannie Marie-Jewell filed an affidavit in the Federal Court action in which she swore, among other things, that 4990 NT Ltd. was owned entirely by the SRFN [Exhibit 9, page 158]. (ix) February 14, 2003: James Schaefer, Ken Laviolette, Ronnie Schaefer, Allan Schaefer, and Melvin Wanderingspirit signed a Directors’ Resolution declaring that they were the beneficial shareholders of 4990 NT Ltd. The resolution authorized the filing of a notice of change of directors [Exhibit 9, pages 72 to 74]: WHEREAS James Schaefer, Ken Laviolette and Ronnie Schaefer (the “Incorporators”) incorporated the corporation pursuant to the provisions of the Business Corporations Act S.N.W.T. 1996 c. 19 (the “Act”) on January 11th, 2002. AND WHEREAS pursuant to the provisions of s.107(1) of the Act the Incorporators filed a notice of directors with the Registrar of Corporations listing themselves, Allan Schaefer, and Melvin Wanderingspirit as the directors of the Corporation. AND WHEREAS James Schaefer, Ken Laviolette, Ronnie Schaefer, Allan Schaefer, and Melvin Wanderingspirit (hereinafter called the “Shareholders”) were at all times intended to be the legal and beneficial shareholders of the Corporation, as well as the directors of the Corporation. AND WHEREAS the Shareholders inadvertently did not prepare and sign a written resolution in their capacity as directors of the Corporation authorizing the issue of shares to themselves and passing a general by-law and otherwise organizing the Corporation, pursuant to s. 105 of the Act immediately after the incorporation of the Corporation. … AND WHEREAS the Shareholders have now signed a unanimous directors resolution dated as of January 11th, 2002 issuing each of them a share in the Corporation and appointing James Schaefer and Ken Laviolette as the President and Secretary of the Corporation respectively, pursuant to the provisions of s. 105 and 107(2) of the Act, and have further signed a unanimous shareholders resolution also dated as of January 11th, 2002 electing themselves as directors until the next annual general meeting, pursuant to s. 107(3) of the Act. NOW THEREFORE BE IT RESOLVED THAT: (a) The Secretary be authorized and directed to file a notice of change of directors with the Registrar of Corporations stating that Chief Marie and the purported council have ceased to be directors of the Corporation and that the Shareholders are the directors of the Corporation. (b) That the registered office of the Corporation be changed from 11 Franklin Street in Fort Smith to Suite 702, 5201 Franklin Avenue, Yellowknife, NT, X1A 3S9 and that the Secretary be directed to file a notice of change to that effect with the Registrar of Corporations. (x) February 18, 2003: The November Council filed an Emergency Notice of Motion in the Federal Court to allow them to pay specified outstanding accounts of 4990 NT Ltd. to named creditors [Exhibit 9, page 228]. (xi) May 16, 2003: Business Corporations Act, Form 5, Notice of Change of Directors, was filed with the Registrar of Corporations: [Exhibit 9, page 75]. This document shows that Victor Marie, Connie Benwell, David Gowans, Don Tourangeau, Michelle Bjornson, Harvey Lepine, Norman Star and Nora Beaver had ceased to be directors of 4990 NT Ltd. Replacing them were James Schaefer, Ronnie Schaefer, Allan Schaefer, Ken Laviolette and Melvin Wanderingspirit (the August Council). (xii) May 29, 2003: Business Corporations Act, Form 5, Notice of Change of Directors, was filed with the Registrar of Corporations [Exhibit 9, page 97]. This document shows that James Schaefer, Ronnie Schaefer, Allan Schaefer, Ken Laviolette and Melvin Wanderingspirit had ceased to be directors of 4990 NT Ltd. Replacing them were Victor Marie (Chief), Norman Star, Connie Benwell, Michelle Bjornson, Harvey Lepine, Don Tourangeau, Nora Beaver and David Gowans (the November Council). (xiii) May 29, 2003: Business Corporations Act, Form 2, “Notice of Registered Office or Notice of Change of Registered Office” was filed with the Registrar of Corporations [Exhibit 9, page 79]. This document changed the registered office of 4990 NT Ltd. from the band office building to 315 McDougall Road, Fort Smith, NT. The latter is the home address of James Schaefer [Evidence of James Schaefer, April proceedings, page 218]. (xiv) Coincidentally on May 29, 2003, the Federal Court issued a judgment overturning the November 2002 election and reinstating the August Council [Exhibit 9, page 254]. (xv) June 20, 2003: The Federal Court directed that three members of the August Council were required to sign on behalf of the SRFN, and that Chief Victor Marie had to be one of them [Exhibit 9, page 364]. (xvi) June 27, 2003: The August Council resolved that they were returning full responsibilities for the numbered companies 4990, 4991 and 4992 to the original directors, namely James Schaefer, Ken Laviolette, Melvin Wanderingspirit, Allan Schaefer and Ronnie Schaefer [Exhibit 9, page 106]. (xvii) July 7, 2003: Business Corporations Act, Form 5, Notice of Change of Directors, showed that Victor Marie, Connie Benwell, David Gowans, Don Tourangeau, Michelle Bjornson, Harvey Lepine, Norman Star and Nora Beaver had ceased to be directors of 4990 NT Ltd. Replacing them were James Schaefer, Ronnie Schaefer, Allan Schaefer, Ken Laviolette and Melvin Wanderingspirit [Exhibit 9, page 101]. 3.4 Peace Hills Trust [33] On July 10, 2003, 4990 NT Ltd. prepared a “Certificate and Agreement” addressed to the Bank of Montreal appointing it as the “… banker of the Corporation.” The authorized signing officers were listed to be James Schaefer, Ken Laviolette, Ronnie Schaefer and Allan Schaefer, but with the proviso for “Any two to sign” [Exhibit 9, page 107]. The following excerpt from the examination-in-chief of James Schaefer from the April proceedings is relevant [pages 163 and 164, beginning at page 163, line 19]: Q. I would like to take you to page, and again Exhibit A, page 107. I just ask you to take a look at a resolution with the Bank of Montreal. A. Yeah. Q. And on page 110 there appears to be a signature. Is that your signature? A. At the bottom of the page, yes. Q. And do you recall the reason why you were signing this document with the Bank of Montreal in July of 2003? A. Well, we were having problems with the bank because of all the shuffling back and forth and judgments coming down. They weren’t sure who was in charge of these accounts. [Exhibit “A” became Exhibit 9.] [34] On July 21, 2003, the accused opened an account in the name of 4990 NT Ltd. at Peace Hills Trust in Edmonton. Peace Hills Trust is a financial trust institution. An employee, Judy Lynne Hoglund, testified on December 16, 2005, that Victor Marie and Tanya Tourangeau were the customers who attended before her to open the account. Ms. Hoglund provided particulars of the dealings that she had with them on July 21 and with Ms. Tourangeau on July 22. [35] Toward the beginning of her evidence, Ms. Hoglund adopted the contents of her affidavit found at Exhibit 9, pages 1 to 3. The affidavit and the attachments set out the documents that pertain to the account. One of these documents, found at page 5, is on its face a resolution of 4990 NT Ltd. authorizing Victor Marie, then Chief of the SRFN Band, and Tanya Tourangeau, or either of them, to have authority to transact various banking business at Peace Hills Trust. [36] Paragraph 2(a) of the resolution purports to authorize both accused to deposit with Peace Hills Trust “but only for credit of the Company” (i.e. 4990 NT Ltd.), cheques and other similar documents. [37] Paragraph 3 authorizes “Chief Victor Marie and/or Tanya Tourangeau” to conduct financial business as specified in the document. [38] Paragraph 3(a) allows them: to make, draw, accept, endorse, sign and execute, under the corporate seal or otherwise, cheques, promissory notes, bills of exchange, orders for the payment of money and other instruments whether negotiable or not contracts for letters of credit and forward exchange, and agreements obligating the Company to PHT in respect of obligations or liabilities or to be incurred by PHT for the account or benefit of the Company; [39] Paragraph 3(e) allows them: generally to exercise all rights, powers and authorities which the Directors might or could exercise under the authority of the Company’s Charter or Articles and By-laws or Articles and Memorandum of Association and the laws governing the Company; [40] Paragraph 4 states: That the person or persons authorized by Clause 3 hereof, or the person or persons from time to time designated in writing by (a) the President or Vice-President and (b) the Secretary or Treasurer or Secretary-Treasurer, be and is/are hereby authorized on behalf of the Company from time to time to withdraw from PHT all or any securities and property held by PHT for safekeeping on behalf of the Company or as collateral security or otherwise and sign and deliver receipts therefore or to direct PHT by written instructions signed [by] such person or persons to deliver all or any such securities and property to any persons or persons named in such instructions. [41] Paragraph 5 provides: That all instruments, whether negotiable or not, documents and writings made, drawn, accepted, endorsed, signed or executed as hereinbefore provided and delivered by any bearer thereof shall be valid and binding upon the Company, and PHT is hereby authorized to act thereon and give effect thereto. [42] At the bottom of the resolution is the heading: “Certificate.” It is dated July 21, 2003, and is signed by both accused on behalf of 4990 NT Ltd.: CERTIFICATE It is hereby certified by the undersigned that the foregoing is a resolution of the Directors of the Company in accordance with the Charter and/or Articles and the By-laws of the Company and all other laws governing the Company, which resolution is now in full force and effect. As witness the Corporate seal of the Company this 21 day of July, 2003. 4990 NT LTD (Name of Organization) [43] According to Ms. Hoglund, the opening of the account proceeded in the following manner [transcript from December 16, 2005, beginning at page 35, line 8]: Q. MR. LITTLEFIELD: Can you tell us about what your dealings with them were, please? A. They came in and they asked to open up a business account, and so I took them into an office and they showed me the cheques that they had. I asked them for the proper driver’s licence, picture ID, which is a qualification that we need to open up an account, and when I realized it was a limited company then I proceeded to get the paperwork that we needed to open up a limited account. … Page 36, lines 9 to 22: Q. I would like to take you to page 14 of the document. This purports to be some minutes of 4990 dated May the 25th, 2003. Do you remember seeing that document? A. Yes, I do. Q. Can you tell us what that is, please? A. It is a document that we require to open up an account so that we know who it is that is supposed to be the signing authority on the account. Q. And who did you get that document from? A. From Tanya. Q. In terms of your dealings with them, can you tell us, did one of them talk more than the other, did they both talk the same? A. Tanya did most of the talking, yes. Q. Now, in that document, if I can just take you through it, it talks about “Moved that 4990 establish a presence in Alberta…” MR. TARRABAIN: Well, the document speaks for itself. THE COURT: I think Mr. Littlefield is going somewhere with it and setting up the witness. Q. MR. LITTLEFIELD: “…establish a presence in Alberta and direct Chief Victor Marie, director, and Tanya Tourangeau, finance manager, to open a bank account with Peace Hills Trust. This account will allow for easier direct deposit access for our expected clients.” Now, do you recall seeing that in the document? A. Yes. Q. Did you have any discussion with them about whether or not Peace Hills Trust could offer direct deposits? A. I am sure that I would have explained that we didn’t have direct deposit at that time. We now have it now, but at that time we didn’t have direct deposit, but we could definitely take the cheques sent directly to us on deposit. [44] The day after the account was opened Ms. Tourangeau attended at Peace Hills Trust. She did so because Ms. Hoglund required a list of the directors of the company. The list had not been supplied on the day the account was opened. The list of directors provided by Ms. Tourangeau on July 22 included Victor Marie, despite a filing with the Registrar of Corporations on July 7, 2003, in which he is noted as having ceased to be a director. [45] The total amount deposited with Peace Hills Trust on July 21 was $31,454.46. This included two cheques from the Government of Canada, Department of Natural Resources in the amounts of $12,258.38 and $10,773.31. These cheques were for work done by 4990 NT Ltd. in the course of the survey contract referred to previously. [46] The following day Ms. Tourangeau withdrew $5,000.00 in cash and $26,300.00 in blank money orders leaving very little in the account. On this same date, the Federal Court of Appeal, sitting in Edmonton, issued an Order directing that the June 20, 2003, Order was stayed to the extent that Chief Marie no longer had to be one of the three council members required to authorize a payment by the band council. [47] In October 2003, James Schaefer wrote to Peace Hills Trust enquiring about the two cheques mentioned in question. [48] The list of payees following the withdrawal on July 22, 2003 is significant. It is reproduced in Exhibit 1, a copy of which is attached as Appendix “A” to this judgment. [49] The evidence of Ms. Tourangeau reveals her knowledge of why the payments shown in Appendix “A” were made. I refer to passages taken from pages 350 to 354 and pages 358 to 364 of the April transcript of her cross-examination: Page 350: Q. Isn’t the whole reason for going to the Peace Hills Trust, depositing these cheques and then making all of these payments out, is so that you and Victor could have control over the money because you knew the August Council would never have approved any of this? A. No. Q. No? You say you were owed money when you left, by the Band? A. Yes, there was many cheques of mine that they wouldn’t sign. Q. And you were having difficulty getting the money from them. In fact, you still haven’t got it; is that correct? A. That’s correct. Q. I suggest to you this was a pretty easy way to correct the situation and help yourself to the money. Isn’t that what you were doing? A. No, that wasn’t what I was doing at all. If that’s what I was doing I probably would have kept all the 23,000 and not have given it to anybody else. Why would I pay City Centre? Why would I pay Victor Marie? Why would I give all of this money away if I wanted it? Q. Did you pay Victor Marie? A. Yes. Q. Well, what money went to Victor Marie? A. Assuming that the money order that you have marked here, number 16 and 17 that were originally given to Victor Marie for travel, he transferred them to his wife, Betty Marie. Q. You are assuming. You don’t know that one way or the other? A. Well, because it has her name on it, because I never issued any payments to Betty, only to Victor. Q. You just turned the money orders over to Victor? A. Yes, I did. Q. What about the ones to Bruce Barry, did you fill those in? A. Filled them in meaning? Q. Completed who the payee was. A. I can’t recall if I completed who the payee was or if Jeannie Marie-Jewell assisted me in completing who the payee was. Q. Well, let’s go back to when you come into the Peace Hills Trust on July 22nd. Did you ask Ms. Hoglund, or tell her, rather, that you wanted to withdraw all the money in cash? A. Yes, I did. Q. I suggest to you the reason that you wanted all the money in cash was so that it couldn’t be traced and would make it harder to know what you and Victor did with it; is that correct? A. No, that’s not correct. Q. You were allowed to withdraw $5,000 in cash, correct? A. Yes. Q. What happened to that $5,000 in cash? A. It went to Mr. Bruce Barry. Q. That money went to Bruce Barry as well? A. Yes, it did. Q. And did you witness that? A. Yes, I did. Q. Was that on July the 22nd? A. I don’t think it was the same day, but I do have a receipt from Mr. Barry. It might indicate on that receipt. Q. And I take it Mr. Barry basically wanted to be paid in order to continue to act for the November Council? A. Yes. … Q. Ms. Tourangeau, did you think about whether the August Council would want these cheques being deposited down in Peace Hills Trust, if they really were Band property? Did you think about that at all? A. I can’t say whether I thought about what they thought about it. Q. Did it seem to be rather odd, after these months and months and months of all of these tight controls, that suddenly you and Victor were sidestepping everything by taking these two cheques that have been sitting in his pocket for the last six months and depositing them down in Peace Hills Trust? Would that strike you as odd? A. It didn’t because we had lawyer advice telling us to do this right from the beginning. Q. You had a lawyer tell you to take these cheques - - A. To go and open up accounts away from the Bank of Montreal and take our business (sic) another place. Q. Right. A. No, that didn’t strike me as odd. … Page 358: Q. What did you do with the money and the money orders? A. I think the first payment was to the City Centre Inn. Q. And did you complete that? A. Yes, I did. Q. So that payment was for Victor Marie to come to Edmonton as part of the appeal? A. No, the City Centre Inn was an outstanding bill that we needed to take care of. Q. Why wouldn’t you just have that bill paid in the ordinary way, by the Band Council? Why would you use a money order? A. Because at that point City Centre Inn was pretty frustrated at the amount of time it was taking to get the bills cleared up, and they had a right to demand immediate payment. Q. How long did you work as the finance manager for the Salt River First Nation? A. With which Council? Q. With either Council. A. In total I’ve been in the finance office from 2001 to the middle of 2002, and then 2003, 2004, so I guess a total of two years in the finance department. Q. Right. So as of July 2003, given your background as the finance manager for the Band, would you consider this a good way to deal with the Band’s finances? A. Paying bills when they were due, yes. Q, Paying bills through money orders, attempting - - A. Paying bills through money orders? Q. Yes, would you consider that a good way of handling finances? A. That was a good alternative, yes. Q. Really? A. We weren’t in Fort Smith. Q. Do you know what are the principles for financial control, to create audit trails, to create records? A. Yes. Q. And isn’t the whole purpose behind this just the opposite, so that no one will know what you did? A. No, it isn’t. If that was the case I wouldn’t have kept my receipt to City Centre Inn. Q. Did you complete the money orders for City Centre Inn? A. I can’t recall. Q. Would you like to take a look at them? A. Sure. Where are they? Q. The first one appears to be at page 53 and then to page 56. A. That’s my writing, “City Centre Inn.” I believe it is. Q. And was the date of the July 22nd filled in that day? A. Well, if you look at all the money orders, everything was July 22nd because Judy put that on there when she issued the money orders to me. Q. And did you make a copy of these money orders once you paid them out to City Centre Inn? A. I have all the copies of the money orders with me. Q. So you made a copy at the time? A. Well, when you get a money order they come like three sheets. Q. Right. A. You rip one off, you get the top sheet, the second sheet, the third sheet. Q. So you kept a copy? A. I have all copies of the money orders. Q. All right. And did you forward a copy of these completed money orders to the Salt River First Nation Band so that they would have them for their records? A. Yes, when we transferred over all the documents; yes, we did. … Page 361: A. We sent, along with the computer, we sent a bunch of files by the airplane from Edmonton to here, and they were delivered by taxi to the Band office. Q. And when you say “we,” who is that? A. Victor. Q. Is that just for the City Centre Inn, or is that for any of the others? A. Oh, there was countless files in there, but yes, no, they would have had copies of everything. Q. That would include copies for Bruce Barry? A. Yes, it would. Q. And copies for Betty Marie? A. Yes, it would. Q. For every one of these money orders? A. For every one of the money orders. Q. Can you tell us when you did that? A. No, I can’t remember the exact date. Q. And whose attention were they returned to? A. I don’t recall now. Q. What year were they returned? A. Oh, they were returned that summer. Q. In the summer of 2003? A. Yeah, if you go back to one of your orders, there was an order done and we returned everything. Q. And did you send along a covering letter? A. I don’t recall. Q. Did you send along an inventory of the items that you were returning? A. No. Q. Wasn’t that important to you to keep track of what you returned? A. Was it important for me to keep track of what I returned? No, I knew what I was returning. Q. And I take it you referred to an order, so part of your reason for doing this was to be in compliance with the order? A. Just part of my reason was, yes. Q. But you didn’t consider it important to keep a record of how you complied? A. If I would have been asked to, I would have. At that time, no, there was countless things going on, and that would be just a small detail that I never had time to take care of. Q. Mr. Mudalier was the person who had acted as a Band manager and provided advice to the Band for a number of years; is that correct? A. That’s correct. Q. Would he have been a logical person for you to return all of these items to? A. Hardly, he was in Fiji at the time. Q. So it wasn’t him. Does that help in terms of recalling who it was that you returned them to? A. No, it doesn’t. Q. And what about the $5,000 in cash, how did you account for that? A. Pardon me? Q. How did you account for the $5,000 in cash? A. I got a receipt from Mr. Barry. Q. And do you have a copy of that receipt? A. Yes, I do. Q. And did you send a copy of that receipt to the Band? A. Yes, I would have. Q. And that was part of the same shipment? A. Yes. Q. And so you even sent a copy, for instance, of the money orders showing yourself receiving payments? A. I sent copies of everything. Q. And aside from when you returned these to the Band in the summer of 2003, did you produce these at any other time to the Band? A. It was never requested. Q. I take it that means no? A. That’s right. Q. And did you produce them to the police at any time? A. No, they never approached me or questioned me. [50] At the time of the Peace Hills Trust events, Victor Marie was Chief of the SRFN but was no longer a director of 4990 NT Ltd. At the same time, Tanya Tourangeau was no longer employed by the band. She had been dismissed by letter dated June 18, 2003, [Exhibit 9, page 408]. (Ms. Tourangeau had never been an officer, director or employee of 4990 NT Ltd.) 3.5 The alleged break-in [51] There is persuasive evidence of a break-in at the band’s finance office in June 2003. The cheques in question ($12,258.38 and $10,773.31) are dated April 23, 2003, [Exhibit 9, pages 21 and 22; 414 and 415]. They were addressed to 4990 NT Ltd. at Box 960, Salt River First Nation, Fort Smith, Northwest Territories. Clearly the cheques arrived at their destination in a timely manner. During the period particularized in the informations Mr. Marie came into physical possession of them. The evidence strongly supports the finding that physical possession of the cheques by Mr. Marie, along with knowledge of their significance and control over them, occurred in the band offices in Fort Smith. [52] I accept the evidence of damage to, and disarray in the band’s finance office in June 2003. I see no reason to reject the evidence of Barbara MacArthur in this respect. Her evidence, which is corroborated to some extent by the evidence of Betty Tourangeau and Raymond Beaver, leads me to conclude that the damage was caused by someone unlawfully breaking into the office. The evidence of Ms. McArthur explains the circumstances of the break-in. [53] Ms. McArthur works for the SRFN Band and did so in June 2003. On or about June 13, 2003, she went into the finance office to do an inventory. I refer to the following from her examination-in-chief [April transcript, pages 24 to 26]: Q. And did you do an inventory in any particular part of the office? A. Just the finance area. Q. And could you describe the finance area for us, please? A. When we first went in there there wasn’t that much in the finance office there. The computer was missing, a lot of the bank statements were missing, there was basically nothing really in there. Q. Now, can you describe the physical arrangements for the finance part of the Band offices? A. Like the layout of the room? Q. It’s in a separate room, is it? A. Yes. Q. And is there a door to that room? A. Yes. Q. And is there a lock on that door? A. Yes. Q. And how did you get into that locked room? A. We were given a key, we had a key for it. Q. And do you recall at any time whether there were any cheques that were found that were not for the Band? A. There was a deposit book in one of the top drawers that had some Government of Canada cheques in it, they were made out for the numbered company. Q. Do you remember what numbered company? A. No, not specifically which one. Q. Do you remember how many cheques there were? A. There was about three of them. Q. And do you remember anything else about these cheques? A. Totaling them up they were in excess of 100,000. Q. What, if anything, did you do with the cheques? A. We left them there. Q. When you say “we left them there,” was there anyone else who saw these cheques? A. Betty Tourangeau and myself. Q. Now, at some point did you ever observe any damage that happened in the Band offices? Was there ever any damage that happened to the Band offices? A. Well, a couple weeks later my office was broken into during working hours. Q. And do you recall what day that was? A. June 24th. Q. And can you tell us about what happened, that you observed? A. Well, when I got into work that morning at 9 I started doing payables. At 10:00 I had gone to have coffee, and when I left I locked my door. When I got back to the office my door was open and there was a huge crack in it. Q. Around what time did you leave for coffee? A. Around 10. Q. And what time did you come back? A. About 10:30. Q. And did you make any observation once you came back about the state of the office aside from this damage you observed? A. There was stuff moved around in there. The cheques that I had been using to do my payables, the next cheque in sequence was missing, so I knew that there had been some cheques removed from the office. 4. The Issues [54] The defence raises the following issues: 1. Jurisdiction. The burden of proving a theft within the Northwest Territories has not been met by the Crown. If there was a theft of the cheques, it occurred in Edmonton, Alberta, at the time they were deposited at Peace Hills Trust, or the following day when the funds were withdrawn. Therefore, the Territorial Court of the Northwest Territories lacks jurisdiction. 2. Section 322 of the Criminal Code. The Crown has failed to prove theft of the cheques within the definition of theft in section 322 of the Criminal Code. 3. Credibility. The proper application of the principles of credibility leads to verdicts of not guilty. 4. Failure to link the accused to the break-in. The Crown has not proven that either accused was involved in any way in the break-in at the band office in June 2003. 5. Failure to prove theft as particularized. The Crown’s case is restricted to proving that the theft of the cheques occurred during the break-in. The defence says that because the Crown’s case is restricted to theft of the cheques during the break-in, it cannot successfully argue that the accused can be found guilty of theft committed in any other way. 6. Failure to prove fraudulent intent and failure to disprove colour of right. The Crown has failed to prove fraudulent intent, and has failed to disprove colour of right. The defence adds that the innocent intent of Ms. Tourangeau can be imputed to Mr. Marie. 7. Lawful authority to deal with the cheques. Mr. Marie, in his capacity as Chief of the SRFN Band, and Ms. Tourangeau, acting under his direction, had lawful authority to transact business on behalf of 4990 NT Ltd. (which they regarded as a band-owned company), including opening the account at Peace Hills Trust and the withdrawal of funds. 8. Failure by the Crown to prove that 4990 NT Ltd. was not a band-owned company. The defence argues that this issue is “very paramount,” and is at the root of the actions and the intent of both accused. [55] The Crown argues the issues in the following way: 1. Jurisdiction. This Court has jurisdiction because both the mens rea and actus reus merged in the Northwest Territories. Alternatively, the Crown says that the preparatory intentions and actions of the accused in the Northwest Territories were merely concluded in Edmonton thereby giving this Court jurisdiction. 2. Credibility, reliability, fraudulent intent and colour of right. The evidence in support of the Crown’s theory is credible and reliable. The Crown says that on the totality of the evidence it has proven its case beyond a reasonable doubt, including proof of fraudulent intent and an absence of colour of right. 3. The ownership of 4990 NT Ltd. The Crown says that this issue is not paramount; on the contrary, it is of no consequence. 4. The break-in and the particularization of the Crown’s case. Mr. Littlefield argues that the case for the Crown does not depend, and never did depend, on proof that the accused had any role in the June 2003, break-in. The break-in, says the Crown, is simply a piece of evidence to be assessed and weighed along with all the other admissible evidence. The Crown says that the events at Peace Hills Trust merely afford evidence of the prior fraudulent intent of the accused before they left the Northwest Territories with the cheques; in this theory the elements of the offence merged in Fort Smith when the accused, acting together with common purpose, took the cheques without lawful authority for the purpose of fraudulently obtaining and disbursing funds in Alberta. The Crown also says that if preliminary steps only were taken in the Northwest Territories to convert the cheques, its case still meets the definition of theft, does not go beyond the way it has been particularized, and does not amount to a continuing offence. The Crown says that whichever theory the Court chooses to accept, the defence has not been prejudiced in making full answer and defence because full particulars relevant to these theories were disclosed to the defence before the trial began. The Crown also submits that the charges, and its opening statement, do not restrict its case to proof of any single theory. The Crown therefore says that the principle of proving its case as particularized has not in any way been offended. Additionally, the Crown argues that the complaint of the defence respecting particularization lacks merit because the defence has not established prejudice in making full answer and defence, and knew well before the trial commenced what the evidence and theories of the Crown were. 5. Analysis of the Issues [56] I begin the analysis with some general remarks. [57] The accused do not have to prove anything. Instead, it is my responsibility to decide whether the Crown has proven that they are guilty beyond a reasonable doubt. It does not follow, however, that the verdicts must be the same. The onus on the Crown is a heavy one, but does not require proof to an absolute certainty. [58] Throughout the process of arriving at the verdicts, I have assessed and weighed the totality of the admissible evidence. To do this, I have applied many principles of law. These include, but are not restricted to, the principle that the trier of fact is entitled to accept all the evidence of a witness, reject it all, or accept some, but not all of it. I have also applied the principles set out by the Supreme Court of Canada with respect to the assessment of the credibility of the witnesses. Reliability of the evidence is another issue that I have addressed. [59] I shall also refer to inferences that I have drawn. Inferences can only be drawn from facts that are proven: R. v. Sheridan 1990 ABCA 92 (CanLII), [1990] 105 A.R. 122 (C.A.). The following passage found at page 183 of R. v. Kyd (1957) 1957 CanLII 462 (AB CA), 120 C.C.C. 178 (Sissons, J.T.C.) provides further assistance: Apart from any statutory inferences or presumptions, the court may draw inferences of fact although there is no obligation upon a court to draw inferences. One must be most careful in drawing an inference in a criminal case. It must not be a mere guess or suspicion. A (person) is not to be convicted on a guess, however shrewd that guess may be. It must be an inference which the mind naturally and logically draws from other proven facts; (appeal to the Alberta Supreme Court, Appeal Division, dismissed without written reasons). [60] It is not my responsibility to direct the SRFN how to operate its affairs, nor is it my responsibility to direct 4990 NT Ltd. how to operate its business. [61] The evidence is complex. Some of the evidence is not in dispute, but some of it or its application, is in dispute. [62] There is no dispute that 4990 NT Ltd. lawfully contracted in 2002 with the Government of Canada to supply surveys of the Salt River First Nation land for the Department of Natural Resources. There is also no dispute that the two cheques in question were lawfully paid to 4990 NT Ltd. by the Government of Canada for services provided by the company according to the terms of the contract. [63] It is also not disputed that the accused attended together at Peace Hills Trust in Edmonton, Alberta on July 21, 2003, for the purpose of opening an account in the name of 4990 NT Ltd. As well, the defence does not dispute the allegation that the account was almost completely emptied by Ms. Tourangeau the day after it was opened. [64] The evidence places the accused, physically together, and acting together, in possession of the cheques at Peace Hills Trust on July 21, 2003. In her cross-examination from the April proceedings Ms. Tourangeau testified as follows [page 328, lines 10 to 19]: Q. And you indicated that the cheques were transferred to Mr. Marie in April; is that correct? A. When they came in, that’s correct. Q. Can you tell us what you mean by the word “transferred”? A. I took them to my office and gave them to - - put them in his office and gave them to him. Q. Right. And that’s April of 2002? A. Yeah, they arrived in April. I observe that the question: “And that’s April of 2002?” ought to have referred to the year 2003. [65] Ms. Tourangeau admitted to depositing the company’s cheques at Peace Hills Trust, but denied signing them [page 346, lines 8 and 9]: … A. I didn’t sign any cheques, I just put them into the account. [66] It is clear beyond a reasonable doubt that the accused left the Northwest Territories with one or both of them in physical possession of the cheques, and with common knowledge and common purpose. [67] I am not, however, satisfied beyond a reasonable doubt that the accused, or either of them, had any role in the break-in at the band office. There is no direct evidence or persuasive circumstantial evidence of either accused participating in the break-in; furthermore, the totality of the evidence does not lead me to draw an inference to this effect. There is nothing more than suspicion linking one or both of them to the break-in, but nobody is to be convicted of a crime on suspicion, no matter how strong or numerous the suspicions may be. The accused cannot, for these reasons, be found guilty of theft of the cheques arising from a break-in at the band office. [68] Both accused had a lawful reason for being in Edmonton on or about July 21, 2003. This reason was their need to attend the Federal Court proceedings. Nevertheless, I find that the Federal Court proceedings camouflaged another reason for the trip. [69] The only reason the cheques were taken to Edmonton was to open an account at Peace Hills Trust in the name of 4990 NT Ltd. It was the common intention of the accused before they departed the Northwest Territories to open the account, and it was also part of their common intention to withdraw funds during the same trip. The evidence strongly supports the Crown’s theory that they knew that if the cheques were deposited to the credit of 4990 NT Ltd. at the Bank of Montreal in Fort Smith, they might have difficulty making withdrawals from the account. This is because the accused believed that 4990 NT Ltd. was “operated by the Band” within the meaning of the Federal Court Order of January 10, 2003. This presented a problem for them; although the Federal Court Order did not specifically mention 4990 NT Ltd. as one of the frozen accounts, paragraph 3 could be interpreted as restricting access to any accounts “operated by the Band,” (including 4990 NT Ltd.) at the Bank of Montreal in Fort Smith [see paragraph 27 above]. [70] The concern of Mr. Marie, then Chief of the Band, but not then a director of 4990 NT Ltd., was to have unimpeded access to the account to which the cheques were deposited. As for Ms. Tourangeau, she shared with him an intention to control disbursement of the monies following the deposit of the cheques. This is not a case of innocent intent transferred from her to Mr. Marie, as the defence has argued; rather, it is a case of a common shared fraudulent intent without colour of right on the part of both. The evidence takes me to this conclusion beyond a reasonable doubt. Ms. Tourangeau would have the Court believe that she had an honest belief that as Chief, Victor Marie controlled the shares of the company in the interest of band members, and that she was merely following the instructions of her Chief. I refer to her cross-examination at page 357 of the April proceedings, lines 9 to 25: Q. But for your purposes, 4990 was never Band property. Isn’t that what you said? A. Yes, that’s what I said, and I didn’t just say that Victor had private control of the company, the directors were still Band Council members, but he had 100 percent control of all of the shares of the company. That doesn’t mean he owns it privately, that means as Chief he is controlling the shares of that company in the interest of the Band members. Q. Right. Well, all of these payments out, these were all things that were being paid out by Victor Marie’s decision? A. Yes, and at the time I believed he had that right because he owned 100 percent of the shares of the company and he was the Chief of the Salt River First Nation. [71] I do not believe the claims of colour of right, nor do they raise a reasonable doubt. [72] The 4990 NT Ltd. resolution of May 25, 2003, purports to provide lawful authority to open the account at Peace Hills Trust and to deposit the cheques there. [73] The submission of Mr. Littlefield that the resolution is “an obvious lie” is, in my assessment, accurate. There are compelling reasons to accept this submission. [74] The purported resolution refers to “expected clients.” What clients? The evidence shows one client and one purpose of the company: the Government of Canada survey contract. The government did not use direct deposits; instead, it mailed cheques to 4990 NT Ltd. I find that Ms. Hoglund explained to both accused that Peace Hills Trust did not have direct deposit capacity. It makes no sense that the accused would continue with the process of opening an account at Peace Hills Trust on the authority of a resolution allowing for direct deposits when Peace Hills Trust did not have this capacity, unless the accused planned to make withdrawals soon thereafter. On the other hand, there is undisputed evidence from Ram Mudalier, registered public accountant, who provided advice to both 4990 NT Ltd. and to the SRFN Band, that the Bank of Montreal in Fort Smith did have the capacity for direct deposits. Another consideration is that the accused failed to ensure that the cheques were deposited upon receipt (or soon thereafter) at the bank in Fort Smith; the cheques had been issued in April 2003, but were not acted upon until the July transactions. Additionally, there was no legitimate need facing the accused, nor any perception by them of any lawful authority to withdraw cash and prepare money orders in Edmonton to pay bills, family members and themselves from 4990 NT Ltd.’s account. [75] There is more compelling evidence of the “obvious lie.” [76] Mr. Marie knew by July 21, 2003, that the directors referred to in the May 25, 2003, resolution were no longer councillors. They had ceased to be councillors by the May 29, 2003, Order of the Federal Court. There is no way, given Mr. Marie’s close connections to both the band council, to 4990 NT Ltd. and to the Federal Court proceedings, that he would not have known that the members of the August Council were back in control of both the band and the company. He must have known this before he participated in taking the cheques to Edmonton. Additionally, the May 25 resolution directors were no longer involved in the proceedings before the Federal Court. Mr. Marie clearly understood these facts before July 21, 2003. He could not have held any honest belief that his supporters had any authority to authorize him to open an account for 4990 NT Ltd. at Peace Hills Trust and to make payments from that account. [77] The Crown’s argument is strengthened by the evidence, which I accept, that Mr. Marie knew at least as early as June 30, 2003, that the Federal Court Order required three councillors to sign for the company. When he attended at Peace Hills Trust, he did so without two other councillors. Compelling evidence of Mr. Marie’s knowledge of the Federal Court Order is found in his letter of June 30, 2003, [Exhibit 9, pages 410 and 411]. He wrote this letter in his capacity as Chief; it unequivocally sets out his knowledge and his belief. [78] There is no basis on the evidence, as I assess and weigh it, for Mr. Marie to have held an honest belief on or shortly after May 29, 2003, that the May 25 resolution pertaining to Peace Hills Trust remained valid, assuming it was in fact a lawful resolution. Mr. Marie knew that the resolution did not convey authority to him on July 21, or he was criminally reckless or wilfully blind to the fact given his extensive knowledge of what was happening at the band, at 4990 NT Ltd. and in the Federal Court. [79] Ms. Tourangeau does not fare much better in my analysis. [80] She testified to her understanding that 4990 NT Ltd. was a SRFN company. With this in mind, she claims to have held an honest belief that she had lawful authority to deal with the cheques, and to make withdrawals following the deposit. Material parts of her examination-in-chief follow [April transcript, pages 318 and 319, beginning at page 318, line 3]: A. My complete understanding was it was a Salt River First Nation company. Q. When cheques were deposited into Peace Hills Trust, what was your understanding? A. It was a Salt River First Nation company. Q. Did you believe that you had authority to deal with that money in the way that you dealt with it? A. I believe I was directed by people who had the authority to deal with this company. Q. And who was that, please? A. Chief Victor Marie and – Q. And? A. And formally before the reinstatement of the Council, the November Council. Q. Did you ever steal anything? A. No, I did not. Q. Did you ever steal two cheques? A. No, I did not. Q. Where did those cheques come from, ma’am? A. Well, the cheques were sent to the Band office because they were a Band-owned company, and the cheques were transferred to Victor Marie as soon as they came into the office in April. Q. And did you ever go and take these out of some desk drawers at all? A. No, I did not. Q. Now, tell me about the -- we have seen minutes going back and forth. Were you involved in any of these Band Council Resolutions? A. I don’t believe that I was employed at the time that those Band Council Resolutions were drawn up. Q. Victor Marie, is he a thief? A. No, he is not. Q. Did he steal these cheques? A. No, he did not. [81] I am satisfied beyond a reasonable doubt that Ms. Tourangeau had at least three reasons to be in Edmonton: (1) to be present for the Federal Court proceedings; (2) to assist Mr. Marie in opening the Peace Hills Trust account in the name of 4990 NT Ltd. (where she actually took a lead role); and, (3) to withdraw most of the monies from the trust account as soon as possible after opening it. Some of the material evidence satisfying me of Ms. Tourangeau’s sophisticated business knowledge, her knowledge of band operations, and her intentions follow. [82] Ms. Tourangeau is well educated, bright and articulate. I believe her testimony that at the age of 17 she completed grade 12. After graduating from high school she took college and university courses. At the time of her testimony she was five courses short of completing her Bachelor of Business through the University of Alberta. She has also taken courses in psychology, and courses related to band meetings. When she testified about the courses she has taken, she added: “… I can go on and on” [April transcript, page 315, line 2]. [83] Ms. Tourangeau was also very knowledgeable about the business of the SRFN Band. She began with the band by working with James Schaefer, she trained under Ram Mudalier who is a registered public accountant, and by the end of her employment with the band she was the only person working in the band’s finance department. [84] Ms. Tourangeau was no stranger to the business of 4990 NT Ltd. She was involved with the incorporation of the company. She had information from Ram Mudalier that in his opinion 4990 NT Ltd. was “… 100 per cent Band owned” [April transcript, page 316, line 2,]. She was present when the contract with the Government of Canada was negotiated, and she participated in the negotiations leading to the contract. The negotiations included cost estimates that Ms. Tourangeau worked on to secure the contract. [85] During the ongoing disputes within the band, Ms. Tourangeau was closely allied with Mr. Marie. Her letter of June 5, 2003, is evidence of the alliance [Exhibit 9, pages 315 and 316]. Her testimony also supports this finding. [86] Ms. Tourangeau was intimately aware of the struggles for control of the band and of 4990 NT Ltd. She was well versed in what was happening in the Federal Court proceedings; in particular, she knew about the attempts being made in the Federal Court to remove Mr. Marie as a mandatory signer of documents. [87] It is clear that when Ms. Tourangeau attended at Peace Hills Trust, she knew that the cheques were to be deposited and it was her intention, along with Mr. Marie, to withdraw most of the monies immediately thereafter. I also find, as noted previously, that when she left the Northwest Territories for Edmonton, Ms. Tourangeau either had the cheques in her physical possession or she knew that Mr. Marie had them in his physical possession within the meaning of subsection 4(3) of the Criminal Code. It is also clear that the taking of the cheques from the Northwest Territories to Edmonton was a shared, common and fraudulent enterprise. [88] There is further evidence to support my findings. [89] Ms. Tourangeau knew from her education, training and experience with the band that the paying of the band’s bills was a proper way to dispose of the band’s finances. She also knew from her education, training and experience that when dealing with the finances of the band it was important to create records for audit and other purposes. [90] Despite the working knowledge to exercise care in financial transactions, Ms. Tourangeau’s actions at Peace Hills Trust on July 21, 2003, and on the following day are revealing. [91] When the account was opened on July 21, it was Ms. Tourangeau, not Mr. Marie, who assumed the lead role. Ms. Hoglund, the Peace Hills Trust representative stated: “Tanya did most of the talking, yes” [December transcript, page 36, line 22]. The following passages from the direct examination of Ms. Hoglund show her recollection, which I accept, of what occurred on July 22 when the monies were withdrawn [December transcript, page 46, lines 2 to 20]: Q. What happened when she came in? A. She asked if she could withdraw funds from the account and I said yes, I didn’t have a problem with that. Then she asked -- she asked for the majority of the money to be in cash, and I explained to her that that was not possible for the amount that was in the account, we couldn’t issue it to her in cash. I explained to her that the very most we could give her would be $5,000 in cash, and if she needed anymore funds we could issue what we call an official cheque which a lot of people would know as a bank draft. Q. Let me just stop you for a moment. When you told her that she couldn’t basically withdraw the cash, what was her reaction? A. She was a little upset because she explained to me that she needed all of this money for court funds, for paying for the court case, and she basically was asking how can I get this money because I need it type of thing. At page 47, lines 7 to 21: A. Yes. And then again, you know, I explained to her that we could do money orders for her, but because she didn’t know who the payees would be that they would have to be blank money orders and that the money orders, we could only do up to a thousand dollars per money order, and that if she took them and they were blank that they would not be covered by insurance and that it would be her responsibility to take care of these money orders. Q. Can you elaborate on that for us when you say it’s her responsibility for the money orders? A. Well, if anything was to happen to those money orders, if she got robbed or anything like that, that it would no longer be the bank’s responsibility to repay them if they were stolen or lost or anything like that. At page 49, lines 10 and 11: THE WITNESS: …Tanya had actually written a counter cheque to herself for the amount of $5,000. … At page 49, lines 22 to 24: A. …The balance at the end of the 22nd, the date of the 22nd, the balance in the account was $73.46. [92] The passages quoted above satisfy me that it was the initial common intention of the accused to withdraw the monies in cash. This would have made it very difficult, if not impossible, for a satisfactory audit to trace the disbursement of the funds. This plan was thwarted when Ms. Hoglund told Ms. Tourangeau that Peace Hills Trust could not release the funds in cash. Ms. Tourangeau chose the second best option which was to write a counter cheque for $5,000.00 payable to herself; this represented the maximum amount allowed for a cash withdrawal on the account. The rest of the withdrawal was in the form of money orders, with the payees left blank; this left a balance in the account of less than $100.00. The actual disbursement of the monies followed soon thereafter. [93] As discussed previously, the business of 4990 NT Ltd. was land survey work for the Government of Canada. The contract did not require the Edmonton area to be surveyed. Despite the clarity of 4990 NT Ltd.’s business objectives and the place where it did business, the funds were disbursed to the persons and businesses listed in Exhibit 1 [Appendix “A”]; these were not creditors of 4990 NT Ltd. [94] Some of the monies were disbursed to counsel for Mr. Marie. Mr. Marie knew, as did Ms. Tourangeau, that the August Council would not authorize payment to Mr. Marie’s lawyer in the Federal Court proceedings to resist the attempts to reduce Mr. Marie’s powers. Another payment of several thousand dollars was to the wife of Mr. Marie. The sister of Mr. Marie also received several thousand dollars. Ms. Tourangeau herself appears to have received some of the monies along with businesses in Edmonton including the hotel where Mr. Marie was a guest. [95] With respect to the issue of colour of right, neither accused, in the circumstances that I find to have existed, held an honest belief at any time or anywhere that they were entitled to deal with the cheques as they did. Colour of right incorporates the concept of honest belief: R. v. Lilly (1983) 1983 CanLII 153 (SCC), 5 C.C.C. (3d) 1 (S.C.C.). An honest belief involves an assertion of a belief in a proprietary or possessory right, in this case, to the cheques; it does not depend upon the actual rights of the accused. The honest belief is therefore in a claim, even where the claim is unfounded in law and in fact. It can also denote an honest belief in a state of affairs which, if they actually existed, would at law justify or excuse the act done. A belief in a mere moral right to take something is not a defence to theft: R. v. Cinq-Mars (1989) 1989 CanLII 7116 (QC CA), 51 C.C.C. (3d) 248 (Que.C.A.). [96] The proof by the Crown of an absence of honest belief by both accused is made out by my findings of their specific intentions, their actual knowledge, and by their carefully planned deceptive actions. [97] Ms. Tourangeau testified that she forwarded copies of all the money orders and other relevant material to the band after the Peace Hills Trust transactions. I do not believe her. She was not even employed by the band after June 20, 2003. Her employment had been terminated approximately one month before the Peace Hills Trust transactions. The circumstances of the termination of her employment are significant. The following analysis undermines her credibility. [98] I find that Ms. Tourangeau could not have been in Edmonton with Mr. Marie for the lawful financial business of either the band or 4990 NT Ltd. when she was not an employee of the band nor an officer, director or employee of the company. [99] On June 18, 2003, Raymond Beaver wrote a letter on behalf of the band council terminating the employment for cause [Exhibit 9, page 408]. There are ten grounds of cause listed. Mr. Beaver testified that he believed he delivered the letter by hand on June 19, 2003. He testified in April during his examination-in-chief as follows [April transcript, pages 270 and 271, beginning at line 26 on page 270]: Q. I’d like to take you to the first page after Tab 5 in Exhibit A, which is page 408, and ask if you can take a look at that for me, please. Can you tell us what that is? A. This was a letter to Tanya, to Tanya Tourangeau, terminating her employment with Salt River First Nation. Q. And did you sign that letter? A. Yes. Q. And did you have any contact with Tanya in connection with that letter? A. Yes, I believe I hand delivered it. Q. Do you know when you delivered that? A. Well, I believe it had to be on the 19th because we wanted her out of there by the 20th. Q. How do you recall you wanted her out of there by the 20th? A. Well, in the letter we wanted to. Q. And do you recall where it was that you delivered the letter to her? A. In the office, in her office. Q. And where was that? A. In the Band office, the finance room. Q. Did you have any discussion with her at the time? A. No. [100] Mr. Beaver’s testimony on the issue of the dismissal was not directly challenged in cross-examination. He was only challenged about his recollection of the events in a general way [page 279, lines 1 to 8]: Q. Now, Mr. Beaver, I take it that you are at best attempting to help the Court by reconstructing what happened back in 2003, right? A. Yes. Q. You are trying your best to put the pieces back together, and you can’t be sure, for example, of dates and what actually happened, fair? A. Not exactly. [101] I find that the letter of termination must have been delivered before 9:00 a.m. on June 20, 2003. It was important for the band to have Ms. Tourangeau out of the premises for ten reasons; there is no reason on the evidence that they would have permitted her to work after 9:00 a.m. on June 20. The letter is evidence supporting the testimony of Mr. Beaver. I do not regard the causes for termination for their truth. In no way do I regard the ten allegations, or any of them, as having any impact on my findings, other than finding that their presence in the letter of termination supports Mr. Beaver’s testimony that he would have ensured delivery of the letter before 9:00 a.m. on June 20, 2003. This was a long time before Mr. Beaver testified; his failure to remember the precise details of the delivery of the letter to Ms. Tourangeau is simply an example of the frailties of the human memory over time. [102] Ms. Tourangeau’s cross-examination in April on the issue of receiving notice of termination is strikingly opposed to that of Mr. Beaver. She testified as follows [beginning at page 332, line 17]: Q. So until the point, when was your last day in the Band Council offices? A. My last day, going actually into the office, was sometime I would say in June, but after that time, that doesn’t mean to say that was the last time I worked. Q. Do you recall what day it was that Mr. Beaver delivered you the letter firing you? A. Mr. Beaver never delivered me a letter firing me. Q. What happened? A. What happened? I just have never received a letter from Mr. Beaver. Q. You simply stopped going into the Band offices? A. That’s right, I simply started working with Victor. Q. And what was the reason for that? A. Victor no longer wanted to work in the office, decided to -- and we were always down South in Edmonton giving testimony. [103] I find Ms. Tourangeau’s explanation of why she coincidentally stopped going into the band offices in June 2003, approximately at the time of her termination, to be unworthy of belief. It is implausible, and flies in the face of the more persuasive, compelling evidence of Mr. Beaver. It also flies in the face of common sense. I do not find it to be the true state of affairs that the accused were “… always down South in Edmonton giving testimony.” This may be a mere exaggeration, but surely both accused did not suddenly stop going to work at the band offices. Ms. Tourangeau’s work as finance manager would not reasonably permit a permanent separation from the band offices and there is nothing in other evidence that I accept to support an authorized transfer of the location of her place of work. Additionally, the evidence does not show any system in place for her to be able to work effectively for the band in another jurisdiction. Ms. Tourangeau was fabricating the denial of notice of the termination; of this I have no reasonable doubt. This fabrication casts a pall over other aspects of her credibility. [104] I find as a fact that Ms. Tourangeau knew long before July 21, 2003, that she had no further authorized work with the band. She was not at any time a director, officer or employee of 4990 NT Ltd. Therefore, when she participated in the opening of the account in the name of 4990 NT Ltd. and the withdrawal of funds the next day from the same account, purportedly for the band’s benefit in the course of her band duties, she actually did so without any foundation in law or in fact. Furthermore, she did so without any honest belief in a claim to the cheques or in a claim that she had any lawful authority to do any business for 4990 NT Ltd. or for the band. Both she and Mr. Marie were engaged in a scam. I agree with the written submission of the Crown, found at paragraph 34 of its brief filed after July 5, 2006, that: The only rational reason for Marie retaining the cheques from April to July was so he could use them as his rainy day fund. The cheques ought to have been deposited to the company’s usual bank account, but nobody caught onto the scam until after July 2003. It is not surprising that nobody caught onto this before July given the unique positions of power of both accused. 6. Conclusions [105] The Crown has proven beyond a reasonable doubt all the necessary elements of theft, as it is defined in the Criminal Code, against both Victor Marie and Tanya Tourangeau. [106] The accused were engaged in a fraudulent course of action and without colour of right that began prior to their trip to Alberta. The events in Edmonton had been carefully planned before they left the Northwest Territories. There was no innocent purpose in taking the cheques to Edmonton. This was done fraudulently, and without colour of right. The trip itself, apart from the attendance at the Federal Court proceedings, was designed to benefit both of them for various purposes disconnected from the lawful business of both the band and 4990 NT Ltd. Nobody who received the cash and money orders was authorized by the SRFN or by 4990 NT Ltd. to receive those payments from the company. I reject the argument that Ms. Tourangeau held an honest belief that she was authorized to make payments from the company’s account to the payees listed in Appendix “A”. Her claim that she had the best interests of the band in mind is false. The interests being served by both accused were their own self-serving and dishonest objectives. [107] For the sake of clarity, my conclusions are not to be interpreted as meaning that the offence of theft was committed in the Province of Alberta, or that the offence crystallized there with preparatory actions in the Northwest Territories, or that the theft continued into Alberta from the Northwest Territories; rather, evidence of what occurred in Alberta is relevant, material and probative to the intentions and actions of the accused at a previous time in the Northwest Territories. The fraudulent conduct of the accused in Alberta is compelling evidence that I have considered in determining what the earlier intentions and actions were in the Northwest Territories. In other words, the perfected theft was followed by closely related fraudulent conduct. [108] The accused knew before the trial began what they were charged with and they clearly understood the precise nature of the case against them. By way of illustration, Item 1 in these proceedings is the Crown’s Opening Statement. This document does not state that the Crown’s theory is dependent upon proof that the accused committed the break-in. Additionally, I can find no prejudice to the accused or interference with their ability to make full answer and defence arising from the manner in which the Crown proceeded before and during the trial. [109] In his supplementary material filed in late August, defence counsel says that four cheques were deposited to the account of 4990 NT Ltd. at Peace Hills Trust and that several cheques payable by the Government of Canada to 4990 NT Ltd. went missing. The defence asks: (1) Is it the Crown’s theory that Victor Marie and Tanya Tourangeau had colour of right with respect to two cheques payable to 4990 NT Ltd. and not with respect to two others? (2) How does the Crown account for the missing cheques? [110] The supplementary arguments are without merit. The Crown has properly chosen to proceed to prove a theft of two cheques. This is a proper exercise of prosecutorial discretion; there is no requirement in law that the Crown must particularize, and proceed to prove, every conceivable offence arising from an investigation. Similarly, there is no requirement for the Crown to concern itself with the missing cheques. [111] I find both accused guilty as charged. B.A. Bruser Chief Judge, T.C. Dated at Fort Smith, in the Northwest Territories This 13th day of October, 2006. R. v. TANYA TOURANGEAU and R. v. VICTOR MARIE 2006 NWTTC 10 IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF HER MAJESTY THE QUEEN - v - TANYA TOURANGEAU and HER MAJESTY THE QUEEN -v- VICTOR MARIE REASONS FOR JUDGMENT of the HONOURABLE CHIEF JUDGE BRIAN A. BRUSER
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