Nov 6, 2020

Summary of R v Gmerek

R v Gmerek, 2020 SKCA 97 (CanLII)
Criminal Law – Appeal – Conviction, Criminal Law – Fraud, Criminal Law – Admissibility of Statement – Voluntariness of Statement, Appeal – Evidence – Grounds – Misapprehension of Evidence
The appellant appealed his conviction of defrauding his former employer of approximately one million dollars. The grounds of appeal were: 1) the judge erred by admitting a statement the appellant made because it was not a voluntary statement; and 2) the judge misapprehended or misapplied the criminal burden and standard of proof beyond a reasonable doubt. The appellant worked at a livestock brokerage business that bought and sold cattle in Canada and the United States. He was the general manager commencing August 8, 2008 and he was fired in December 2012 after the employer learned the appellant had taken money over and above his salary. The investigation revealed that the appellant had actually converted over $1 million. The appellant acknowledged receiving the money. He acknowledged that he forged signatures on cheques and acted to hide the payments in the financial records of the employer. The appellant argued, however, that the employer agreed to supplement his salary through these “off-record” payments. According to the appellant, the payments were authorized by the employer. The employer testified that was not the case. The trial judge accepted the employer’s evidence over that of the appellant.
HELD: The appellant’s conviction appeal was dismissed. The grounds of appeal were dealt with as follows: 1) the statement was made by the appellant when the employer, family members, and an RCMP officer attended at the appellant’s office. They placed cheques before the appellant and asked for his comments. The employer agreed that he was yelling and gave the appellant 30 seconds to explain. The appellant responded with “What can I say.” The appellant argued that statement should not have been admitted into evidence because it was not a voluntary statement. The appellant took the position on the voir dire that the employer was not a person in authority. He did not call any evidence on the voir dire. At the voir dire, he had opposed the admission of the statement based on it being inadmissible hearsay. The trial judge admitted the statement under the traditional exception to the hearsay rule for statements against interest. Even if the trial judge had erred, the appeal court found that it could not have affected the admissibility of the statement at law because the voluntariness of the statement was not called into question by the evidence adduced in the voir dire. The appeal court also noted that the statement did not play into the trial judge’s findings for conviction in any case. The only issue at trial was whether the employer authorized the payments and defrauding of auditors and others. 2) The trial judge rejected the appellant’s testimony, indicating that his evidence and his theory were nonsensical in the circumstances or had no correlation to the evidence of how the payments had been made. Other off-record payments to other employees were found to be not at all similar to the appellant’s arrangement. The trial judge concluded that there was “no air of reality” to the suggestion that the employer was aware of the fraudulent transactions. The trial judge did not err in terms of the burden and standard of proof or in her approach to the evidence.