Just a Bit Off the Top, Please

The Ontario Court of Appeal affirmed the convictions of Garth Drabinsky and Myron Gottlieb but reduced their sentences by a total of two one years, each.

The reasons in R. v. Drabinsky 2011 ONCA 582 were posted on the ONCA website this a.m.

The reasons are “by the Court”. What comes through clearly (at least to me) is that the judges on the panel were not impressed by any aspect of the content of the appeal arguments. I emphasize content, not manner of presentation.

For those who care, I’ve pasted some highlights in the body of the message after the break.

R. v. Drabinsky, 2011 ONCA 582
Doherty, Goudge and Armstrong JJ.A.

[4] On their conviction appeals, the appellants raise a number of arguments which, in large measure, challenge the findings of fact made by the trial judge. We see no reversible error and would dismiss the conviction appeals.

[5] The appellants also seek leave to appeal their sentences and, if leave is granted, appeal those sentences. We agree with the trial judge that substantial penitentiary terms were required for both appellants. We are, however, satisfied that she erred in principle in failing to take into account the absence of any evidence of the actual financial loss occasioned by the frauds. While financial loss is not an essential element of the crime of fraud, it is a significant consideration on sentence. While the absence of proof of actual financial loss could not justify a sentence outside of the substantial penitentiary range, it does justify sentences that are somewhat lower within that range than those imposed by the trial judge. We would vary Drabinsky’s sentence to five years and Gottlieb’s sentence to four years.

[36] The defence, built primarily through cross-examination of the Crown witnesses, was essentially two-fold. First, the appellants argued that the main Crown witnesses were entirely incredible for a variety of reasons, including their strong vested interest in assisting the prosecution to protect themselves from the consequences of their criminal activity. Second, the defence pointed to four unchallenged facts, which they argued, taken either individually or cumulatively, raised a reasonable doubt as to whether the appellants had the requisite guilty state of mind. The defence referred to these as the “four pillars of reasonable doubt”. We will address those pillars when considering specific grounds of appeal. It is sufficient to say at this point that the defence alleged that each factual pillar justified inferences that were inconsistent with the Crown’s claim that Drabinsky and Gottlieb had knowledge of the fraudulent activities

[40] … Despite the language used to frame the submissions, many are, in reality, attempts to resurrect and reargue factual battles fought and lost at trial. Those arguments cannot succeed in this court.

[54] In a lengthy case like this one, it can hardly be expected that the trial judge’s reasons will address each and every factual dispute arising from the evidence, or that the reasons will address each and every point made by counsel in argument. Some disputes are more important than others. Some arguments necessarily fail when others are rejected. The trial judge’s reasons addressed all of the significant factual disputes and arguments made. Whatever shortcomings have been uncovered by appellate counsel’s diligent efforts, they do not impair this court’s ability to fully review the verdicts.

[55] The second global challenge rests on the contention that the verdicts are unreasonable. There was ample evidence upon which a reasonable trier of fact could convict both appellants. Indeed, if the trier of fact accepted the thrust of the evidence of Eckstein and Messina, a conclusion which in our view was reasonably available, the evidence was overwhelming, particularly in the absence of any testimony from the appellants.

[66] The appellants’ argument ignores the nature of the fraudulent documentation created by, or at the request of, Drabinsky and Gottlieb to hide the payments they were taking …

[69] … The trial judge cannot be criticized for failing to consider an argument for which there was no admissible evidence.

[93] … The trial judge repeatedly and accurately articulated the burden of proof and applied it to the essential elements of the offence as they related to each appellant.

[94] … While many of the arguments are couched in terms of the misapprehension of evidence, or the failure to consider evidence, in oral submissions those arguments quickly evolved into attempts to have this court make its own assessment of the merits of the various factual disputes that had been litigated and lost by the appellants at trial. We cannot do so.

[100] We agree with Crown counsel’s submission that the defence position itself [on a particular issue:DC] rests on a misapprehension of the evidence.

[116] The appellants next argue that the trial judge fundamentally misunderstood what it was that made the Livent financial statements fraudulent. …

[119] This submission cannot stand beside the trial judge’s reasons. …

[128] The trial judge knew how important the evidence of Eckstein and Messina was to the case for the Crown. She was fully aware of many reasons to question their credibility. After a detailed review of the evidence and a determination that their testimony was supported by significant confirmatory evidence from several sources, the trial judge chose to accept significant parts of the evidence of Eckstein and Messina. She did not act unreasonably in doing so.

[147] Moreover, the evidence of both Eckstein and Messina was amply confirmed in material respect by the multitude of documents, the evolution of the fraudulent accounting practices from the kickback scheme initiated at MyGar and by Drabinsky’s and Gottlieb’s pervasive role in the operation of Livent. …

[189] We would grant Drabinsky leave to appeal his sentences and vary his sentence on the Livent fraud to five years and his sentence on the MyGar fraud to four years concurrent. We would also grant Gottlieb leave to appeal his sentences and vary his sentence on the Livent fraud to four years and his sentence on the MyGar fraud to three years concurrent.