The Queen v. Zelensky

The judgment of Pigeon, Beetz and Pratte JJ. was delivered by

"It was about a year ago that I started doing this. I don't know why. I just made the money orders out, cashed them at my bank, sent them to my house, some of them, and later banked them. My husband told me I was an idiot and would get caught and pay for it. There was very little merchandise, mostly money orders that I did. I have no idea of what amount. It was mostly money orders. My husband has been after me to stop. The money orders for Fedak and Marquardson, I just put in their address and their name. I would tell them the order was cancelled or whatever and the refund was coming to your place. I would then go to their place, pick up the money orders, sign them and cash them. Some I made out to myself and made them payable to the Royal Bank, Portage and Edmonton. During my lunch hour I would go there and deposit them towards the loan there. Some I made out in my daughter's name or my sister's name. I would sign them and deposit them into my husband's and my joint account at McPhillips and Mountain. My sister, Nettie Fedak, would receive money orders that I sent to her house. I would always go down to her house and pick up these money orders. I would tell her this was a cancelled order or something and she was ignorant of the fact I was involved in a fraud or whatever. I don't remember, but she may have cashed one of the money orders, but I have gone to her house after and picked up the money. That would be about the only time I would have done this."

I might indicate, your honour, that this matter has been under discussion for the period of approximately one month now, and I would certainly not in any way indicate that there has been any dragging by either party. It was just a matter of resolving issues, going in detail through the evidence and then sitting down and having some serious talks with clients... .

... A good number of exhibits which form a crucial part of our negotiations were not received until approximate­ly a month ago from out east and until they arrived nobody could really sit down and start talking.

I might also indicate at this point that as between Mr. Ornstein (counsel for the accused) and myself, at any rate, there is no agreement as to the amount, actual amount of compensation owed. And the figure that is laid in the Information is $18,000 more or less but there is a considerable variance in where he stands and where I stand, and I will just apprise the Court of that fact.

... although there is a plea of guilty to the sum of $18,000 more or less, merchandise to $7,000.00 more or less, in no way is that to be construed as an admission by the Defendants that they are liable in the sum of $18,000.00 and $7,000.00. It is an amount of any where between $200.00 and $25.000.00 and it is something that is to be either worked out or it can be agreed upon or it could be adjudicated on by either this Court or the Court of Queen's Bench... .

… If there is a discrepancy to that extent then I am somewhat concerned about there being a plea of guilty entered....

Now, the Defendants, by pleading guilty, have admit­ted the charge of Theft of an amount of $18,000.00 more or less. We don't know how much that is and we want the complainant to prove how much that is. And, we are really leaving it up to the Plaintiff to prove this claim.

These discussions may all be resolved.

… counsel for appellant said that the defence was intended to admit liability but dispute quantum, but that is not in accord with my reading of it.

... This is not a direction, perhaps, just an observation. The Police investigation has led to the charging of Theft in the approximate amount of $18,000.00 and you have, on behalf of your client, entered a plea of guilty to that particular charge. I would assume that prior to having entered that plea or prior to having your client enter that plea, you must have satisfied yourself, to some extent, at least, of the facts and of the evidence available to the Crown supporting that charge. Otherwise, I wouldn't think that you would enter that plea.

That being the case, and bearing in mind that the Crown has access to the specifics of the money orders, and certainly Eatons have access to and have provided you with these specifics as to the money orders, I would suggest, very strongly, that the two of you get together between now and remand date and perhaps co-operate a little more than both of you have to date.

There is some indication before me that there is evidence to support the Theft of $18,547.07 in money orders. I must agree with some of what Mr. Flett has said, that with respect to the additional information that you are seeking, your client would be in the best position to provide you with that information and not Eatons or counsel for Eatons.

That is merely an observation, and, perhaps we could deal with the matter on the 27th of May.

April 30, 1976—Counsel for the company was served with a notice for discovery of documents and an appointment for examination for discovery of an officer of the company to be held on May 12, 1976.

May 6, 1976—Counsel for the company wrote to coun­sel for Anne Zelensky advising of their intention to amend the statement of claim and requesting consent to the amendments. The amendment was to add a claim for conversion of merchandise in the amount of $7,000.00 more or less and to add Steve Zelensky as a defendant in respect of the total $25,000.00. The latter also proposed a meeting of counsel and clients to review the documentation of amounts claimed.

May 11, 1976—Counsel for Anne Zelensky replied, reviewed the proceedings to date and advised that examination for discovery had been rescheduled for June 29, 1976.

May 18, 1976—Notice of motion was filed, returnable on May 21, 1976, to compel production of documents or to have the statement of claim dismissed. The motion was adjourned sine die at the request of counsel for the company. Counsel for appellant understood that the statement of claim would be amended, amended statement of defence would be filed and examination for discovery of an officer of the company would be held on June 29, 1976.

In April and May, counsel for the company furnished documents to appellant's counsel in support of the com­pany's claim. Affidavit on production of documents was not filed.

... There are still negotiations going on between counsel for both sides. There has been obtained a date for examination for discovery of one of the officers of the Eatons Company and that will be taking place in a couple of weeks, I don't have the exact date and, however, your honour, there is no question there is a defence filed. The defence merely questions the amount of quan­tum and not the liability, so this is, it's all the matter of quantum that's still in issue. However, I can assure your honour that monies have been paid into Court, some $12,000.00 I believe, under a garnishing order. A clear Certificate of Title of the accuseds' home has been lodged with the Court which can always be used to raise

any restitution. There is no question that as soon as the quantum is settled, a certain amount is fixed, that restitution will be made. The money is available for restitution, it's just a question of how much.

... There are no negotiations going on... .

... Statement of defence admits only, paragraphs one and two setting out the parties and it denies that the defendant Mrs. Zelensky is indebted to the plaintiff to the straight proof thereof. [sic]

In so far as cooperating in terms of putting Eatons back into the position that it was in so far as restitution is concerned, I'm not going to get involved in the amounts or the how much. It may be that twenty-five thousand more or less may be out by a couple of hundred dollars. The only money that was paid into Court had nothing to do with any voluntary act of Mrs. Zelensky's.

... What I am saying is this, your honour, that the only money that Eatons has in Court they have because they slapped a garnishing order against her bank account on exactly the date that the police affected the arrest of Mrs. Zelensky, not because of any show of good faith or I am going to help you or I am going to assist you. As a matter of fact, in so far as making things easy, being cooperative and putting people back in the position that they would have been but for her illegal act, she stood here at the time of her guilty plea and through counsel said, we put them to the strict proof of every penny except that it's over two hundred dollars. That's been the degree of cooperation shown.

... If Mrs. Zelensky took the point of view that it wasn't eighteen thousand, it was only around fifteen thousand, she could pay fifteen thousand into Court, they could fight later about the three thousand. Not one penny has voluntarily been paid over. Not one piece of merchan­dise has voluntarily been replaced.

So in effect what you're saying is that the actions of the accused after the discovery of the offence is an indication of her criminality.

Yes, your honour, very very much so. And it contin­ues, to right to this day it continues.

... I am advised there were 111 money orders amount­ing to the sum in question, I believe if I have it exact, $18,547.07, albeit that the Information shows $18,000.00 more or less, but that each money order, or the total sum of each of the money orders upon which her endorsement is shown amounts to that sum. What can you say with respect to that.

All I can say with respect to that, your honour, is that her position is that certain of those money orders were legitimate and were not fraudulently or illegally obtained and it's simply a working out of the quantum and I'd rather not try to get into that, that mess at this stage.

... If there's such great certainty as to the quantum, I put it, I question why the Crown was not able to specify in the charge how much it was, why the Crown could not say anything more than $18,000.00 more or less and that is my only comment with regard to that, your honour.

... I submit, with respect, that the appropriate disposi­tion of her case is a period of suspension or a conditional discharge followed, concurrent with probation, concurrent with counselling for both her and her husband and if your honour is inclined to make an order of restitu­tion, that will certainly be complied with; if not, there is another Court that can certainly order restitution and that will be done.

You're talking about restitution as opposed to com­pensation.

No, I'm using those words interchangeably.

....I think it's in the interest of all parties that there be no further proceedings in any Court with respect to this matter, to order compensation and restitution. I am authorized to say, your honour, that because the amount is $18,000.00 and $7,000.00 more or less, that that certainly gives your honour a leaway and to the extent that the amount is somewhat less than $18,000.00, we take no objection to it... .

I understand there is to be an amended statement of claim, an amended statement of defence in reply and an examination for discovery has been rescheduled, post­poned at the request of Mr. Labman (counsel for Eaton) to June the 29th and that examination is forthcoming. I submit, your honour, that I notice in the first transcript that your honour referred to a multiplicity of actions. You were concerned, your honour, about the fact that there is another forum dealing with this matter, and I respectfully suggest that the Court of Queen's Bench can explore the matter thoroughly and exact amounts determined at that time.

Well, since you are on your feet, perhaps you can comment on the following. I am becoming increasingly concerned about one particular area, and I feel that perhaps counsel are not being as cooperative in this Court as they could be. I am advised that there are 111 money orders and that these money orders bear the endorsement of the accused Zelensky and that the total amount of these money orders comes to eighteen thousand, seven hundred and some odd dollars. I am aware further, and 1 have heard from Mr. Labman to the effect that legitimate purchases by Zelensky amounted to a hundred and seventy some odd dollars and that proof could be made of them. I have asked on repeated occasions that counsel get together for the purpose of my being better able to deal with the application for compensation in this Court, regardless of what other application may be taken in some other forum, and there appears to have been very little in the way of coopera­tion, and I am referring specifically from Mr. Ornstein's office. I am faced at this point in time with evidence of all those money orders endorsed by the accused amount­ing to eighteen thousand plus dollars, combined with, and this cannot be overlooked, combined with a plea of guilty to an offence of theft of eighteen thousand dollars more or less, plus the certain amount of merchandise that was stolen. Now bearing that in mind, and keeping in mind completely that there is an application in another forum and there has been an application for compensation made before me in this Court, there is evidence before me in this Court to support that applica­tion. I have, short of begging counsel, I have requested time and time again for them to get together and come up with the figure which the two of them would be in agreement with, and they are no closer to agreement now than they were at the commencement, except for

the fact and I say, I have before me the plea, and I have before me the evidence, and I might indicate that I have given this matter an awful lot of thought over the past few weeks and I came to the conclusion that were the matter not improved, that is had the matter not reached some finality through the cooperation of counsel, then I was going to rely on the plea of guilty to the offence of theft, combined with the information which has been provided me and I am prepared on today's date to make an order with respect to compensation. As to the amount, I will deal with that in a short while. I just feel that there has not been the degree of cooperation that should have existed in this particular matter. I just wanted that on the record.

Dealing with respect to the application for order of compensation, pursuant to the provision of Section 653, I am satisfied that a case has been made out for such an order for compensation and I am making that order for compensation in the sum of $18,000.00. In addition, there will be an order for restitution of the recovered goods. That is the disposition of the Court.

… see Dashner, supra (R. v. Dashner, [1974] 2 W.W.R. 11) at p. 13, where the court approved the following quotation from Regina v. Stewart (1968), 63 W.W.R. 442 at p. 445, [1968] 4 C.C.C. 54:

… It must be remembered, however, that it is most important that the sanctions of the criminal law and its administration should not be used, or be permitted to appear to be used, for the purpose of enforcing civil obligations...."

Counsel for the Crown said, in this court, that pos­sibly the learned provincial court judge was frustrated because counsel had not come to agreement on the matters in dispute. This is not a justification for making an order for compensation or restitution. Courts are provided to decide disputes where parties cannot agree. In my view, it is improper to use the powers of the criminal process as means of enforcing a financial settlement.

In my respectful view, in light of the circumstances outlined above, the learned trial judge was wrong in exercising his discretion in making an order under sec. 653(1) and was wrong in ordering restitution under sec. 655(1).

If it should turn out that appellant's claims are frivo­lous, the Court of Queen's Bench can take care of that matter by its power to award costs against an unsuccess­ful party, and by its power to allow interest to a success­ful party where payment of a just debt has been improp­erly withheld.

The transcripts of the proceedings on April 14th, 29th and June 4th, 1976, consisting of more than 125 pages, are no masterpiece of clarity. Counsel seemed to have confused the Court more than helped it to obtain the precise information in order to arrive at the exact amount of the theft. Throughout the proceedings there appears to have been a strong reticence on the part of various counsel for the accused who appeared throughout the three hearings and on the part of various counsel appearing on behalf of T. Eaton Co. to come out clearly with the exact facts. The Court was not provided with a positive statement of the exact amount involved, although Collerman, P.J. attempted to the best of his ability to get the facts from counsel. That is a factor in this case and counsel are responsible for that situation.

Nevertheless, it is clear in my mind that police investi­gation has led to a charge of theft of money in the approximate amount of $18,000.00 and the theft of merchandise in the approximate amount of $7,000.00 and that throughout the proceedings, advised by counsel, the accused entered into a plea of guilty of these approx­imate amounts.

Words mean something. Persons do not lightly plead guilty to theft of moneys and merchandise. When they admit to theft of such large amounts, even if the amount is "more or less", he or she must mean it, otherwise the entire system of entering pleas in criminal matters is frustrated and appears ridiculous. The plea entered dealt with theft of moneys in the amount of $18,000.00 "more or less" and theft of merchandise in the amount of $7,000.00 "more or less". Counsel for the accused and the aggrieved person failed to supply the Court with the exact amount and they cannot be surprised if, at the conclusion of three hearings, they find their clients with an order of compensation for $18,000.00 and an order of restitution of the goods recovered in the amount of $7,000.00, this despite the fact, that counsel for the accused indicated that some of the goods recovered may have been legitimately purchased by his client. That could easily have been ascertained before the plea and before the hearings.

The goods recovered shall remain in the custody of the police and the certificate of title shall remain with the court pending final disposition of the civil proceedings commenced by the company.

653. (1) A court that convicts an accused of an indictable offence may, upon the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by the applicant as a result of the commission of the offence of which the accused is convicted.

(2) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.

(3) All or any part of an amount that is ordered to be paid under subsection (1) may, if the court making the order is satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the accused and the court so directs, be taken out of moneys found in the possession of the accused at the time of his arrest.

A civil proceeding has for its object the recovery of money or other property, or the enforcement of a right for the advantage of the person suing, while a criminal proceeding has for its object the punishment of a public offence. Criminal proceedings cannot be used as a means of recovering a civil debt in the absence of express provision to that effect.

The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

10. No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

Questions of conflict between the jurisdiction of the Parliament of the Dominion and provincial jurisdiction have frequently come before their Lordships' Board, and as the result of the decisions of the Board the following propositions may be stated:‑

(1) The legislation of the Parliament of the Domin­ion, so long as it strictly relates to subjects of legisla­tion expressly enumerated in s. 91, is of paramount authority, even though it trenches upon matters assigned to the provincial legislatures by s. 92: see Tennant v. Union Bank of Canada, [1894] A.C. 31.

(2) The general power of legislation conferred upon the Parliament of the Dominion by s. 91 of the Act in supplement of the power to legislate upon the subjects expressly enumerated must be strictly confined to such matters as arc unquestionably of national interest and importance, and must not trench on any of the subjects enumerated in s. 92 as within the scope of provincial legislation, unless these matters have attained such dimensions as to affect the body politic of the Dominion: see Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348.

(3) It is within the competence of the Dominion Parliament to provide for matters which, though otherwise within the legislative competence of the provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Domin­ion upon a subject of legislation expressly enumerated in s. 91: see Attorney-General of Ontario v. Attorney-General for the Dominion, [1894] A.C. 189; and Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348.

(4) There can be a domain in which provincial and Dominion legislation may overlap, in which case nei­ther legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail: see Grand Trunk Ry. of Canada v. Attorney-General of Canada, [1907] A.C. 65.

It follows as a result of this jurisprudence which is applicable to the present case, that section 770 of the Criminal Code, although not being strictly legislation in relation to criminal law and procedure, is nevertheless within the competence of the Dominion of Canada, on account of its incidence upon criminal law and proce­dure. And in such a case, the field being occupied, the provincial legislation becomes inoperative.

It is sufficient to say that this enactment is necessarily incidental to the power to legislate upon criminal law and procedure as allotted to Parliament by head 27 of section 91 of The British North America Act,

The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

… I think it is perfectly clear that the definition of the word "sentence" in s. 628(1) is placed there for the purpose of enabling an appeal to be taken on such an order as this, which is a discretionary order which might otherwise have been said to not have been .appealable. Apart from that, I do not think that it is part of the sentence....

(e) make restitution or reparation to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that person as a result thereof;