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R. v. Thompson, 2019 BCPC 197 (CanLII)

Date:
2019-09-03
File number:
80096-3C
Citation:
R. v. Thompson, 2019 BCPC 197 (CanLII), <https://canlii.ca/t/j27s1>, retrieved on 2024-03-28

Citation:

R. v. Thompson

 

2019 BCPC 197

Date:

20190903

File No:

80096-3C

Registry:

New Westminster

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(Criminal Court)

 

 

 

 

 

REGINA

 

 

v.

 

 

JENNIFER YVONNE THOMPSON

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE G. RIDEOUT

 

 

 

 

Counsel for the Crown:

Christina Godlewska

Counsel for the Accused:

Molly Shamess

Place of Hearing:

Abbotsford, B.C.

Dates of Hearing:

October 18, 19, Dec. 10, 2018; Feb. 7, April 8, May 17, 2019

Date of Judgment:

September 3, 2019


I. INTRODUCTION

[1]           Jennifer Yvonne Thompson (the “accused”) is charged with eight fraud-related offences involving five different Visa credit cards issued by the TD Bank (the “bank”) over a timeframe of November 22, 2015, through to March 8, 2016.

[2]           The credit cards were picked up by the accused at various bank branches in the lower mainland of Vancouver and then activated by the accused. She used these credit cards at various ATMs and casinos located in British Columbia and Alberta. She also used one of the credit cards at a Currency Exchange at the Vancouver Airport in Richmond.

[3]           According to the bank’s records [Exh. 4], the total loss relating to the accused’s alleged involvement in the fraud was $195,058.67.

[4]           The accused does not deny that she used the credit cards. However, she testified that she is an innocent victim duped into using the credit cards by a man she met online.

II. BACKGROUND

[5]           Count 1 of the Information alleges that the accused did fraudulently use a bank issued Visa credit card from November 22, 2015, through to November 27, 2015, contrary to s. 342(3) of the Criminal Code of Canada (the “Code”). The card was issued to a “Jennifer Thomson”, at an address of “12994 101A Ave., Surrey, BC.”

[6]           This credit card was not picked up by the accused, nor was it activated by any person. The Crown argued that the circumstances surrounding the other activated credit cards should be classified as similar fact evidence and admitted in relation to Count 1.

[7]           The court disagreed in a ruling delivered on February 7, 2019, and reported at 2019 BCPC 15 (CanLII). In the ruling, the modus operandi behind the fraud was discussed, in part, at paragraphs 2 through 5:

2 In each case, the Crown alleges that an unknown male co-perpetrator would phone a representative at Toronto Dominion Bank purporting to be the primary account holder of a Toronto Dominion Bank Visa card.

3 After answering various security questions, the co-perpetrator would request that a secondary user be issued a Visa card. It is alleged that the secondary user is the accused. It was part of his modus operandi that the co-perpetrator would use variations of the accused's name, such as: Jennifer Thompson, Yvonne Thompson, Jennifer Yvonne Thomson, etc.

4 By slightly altering the name of the secondary user, a distinct profile would be established in the bank software system that would bypass any security software that would normally trigger a fraud alert, which would result in the credit card being deactivated.

5 The co-perpetrator would ask that the secondary Visa card be sent to a Toronto Dominion Bank branch for pickup by the secondary user. These telephone conversations between the co-perpetrator and the bank representatives were audio recorded and played in court.

[8]           Closed circuit television images (“CCTV”) seized from various, but always different, bank branches depict the accused entering the bank and picking up the Visa credit cards that were issued by the bank at the request of the co-perpetrator.

[9]           There are also CCTV images of the accused either activating or using the fraudulent Visa credit cards at various ATMs both in British Columbia and Alberta, as well as at a Currency Exchange at the Vancouver Airport.

[10]        Excluding Count 1 and Count 7 (Stay of Proceedings), all of the recovered CCTV images fit into the timeframe of the remaining Counts in the Information.

[11]        Liane Wong is a Senior Investigator with the bank. She was qualified to give opinion evidence with respect to the retrieval and interpretation of bank records.

[12]        She testified that bank records [Exh. 3 & Exh. 4, p. 2] reveal that on December 7, 2015, the bank received a request purportedly from L.H., a primary Visa card holder, of [address omitted], that “Yvonne Thomson” be added as a secondary Visa credit card user and that she would pick up the credit card at a bank branch located on 152nd Street in Surrey. The individual purporting to be L.H. was, in reality, the co-perpetrator noted at para. 7.

[13]        On December 11, 2015, at 20:28 EST, the accused attended at the bank. CCTV images captured her entering the bank and attending at the customer service counter. The accused provided her BC Care Card number and her birth certificate registration number. At 22:52 EST, the Visa credit card was activated.

[14]        The credit limit on this particular credit card was $20,000. On December 12, 2015, at 00:08 EST, credit, including a transaction fee, of $19,570 was purchased using this Visa credit card account at the Edgewater Casino in Vancouver.

[15]        Ms. Wong testified that on December 16, 2015, the bank received a request purportedly from W.S., a primary Visa card holder, of [address omitted], that “Yvonne J Thomson” of “1299 4101 A Ave., Surrey, BC” was to be added as a secondary Visa credit card user, and that she would pick up the Visa credit card at a bank branch located on 64th Avenue in Surrey. The individual purporting to be W.S. was, in reality, the co-perpetrator noted at para. 7.

[16]        On January 3, 2016, at 00:48 EST, the accused attended at the bank. CCTV images captured her entering the bank and attending at the customer service counter. The accused provided her BC Care Card number and her birth certificate registration number. At 01:32 EST, the Visa credit card was activated.

[17]        The credit limit on this particular credit card was $25,000. On January 3, 2016, the accused attended at the Starlight Casino in New Westminster. She was observed on High Definition CCTV at various locations in the casino. At 01:32 EST, at a cash terminal, credit of $23,920 was purchased. However, the transaction was reversed. It was Ms. Wong’s understanding that the casino viewed it as an “unusual transaction” and, therefore, there was no loss to the bank.

[18]        Members of the New Westminster Police Department (the “police”) were called. Upon their attendance at the casino, they spoke to the accused and seized the credit card. The accused was not arrested, nor was she charged with an offence.

[19]        Ms. Wong testified that on December 16, 2015, the bank received a request purportedly from D.M., a primary Visa credit card holder, of [address omitted], that “Jennifer Yvonne” of “12994 101A Ave., Surrey, BC” was to be added as a secondary Visa credit card user and that she would pick up the Visa credit card at the bank branch located in White Rock, British Columbia. The individual purporting to be D.M. was, in reality, the co-perpetrator noted at para. 7.

[20]        On January 14, 2016, at 19:32 EST, the accused attended at the bank. CCTV images captured her entering the bank and attending at the customer service counter. The accused provided her BC Care Card number and her birth certificate registration number.

[21]        On January 16, 2016, at 1:28 AM MST, CCTV at a bank branch in Edmonton, Alberta, captured the image of the accused using the ATM. The secondary Visa credit card on the account of D.M. was activated.

[22]        At 02:41 EST and 02:42 EST on January 16, 2016, two credit purchases using D.M.’s Visa credit card account took place at a casino in Edmonton. Each purchase was in the amount of $20,191.99.

[23]        Between 03:27 EST and 03:30 EST on January 16, 2016, there were five separate transactions totalling $1,840.00 on D.M.’s Visa credit card account at a bank ATM. All of the five transactions were declined.

[24]        On January 17, 2016, at 23:04 EST there was a credit purchase for $25,750 using D.M.’s Visa credit card account, at the River Cree Resort Casino. One minute later there was a successful credit purchase using the same Visa credit card account at the same casino in the sum of $15,450.

[25]        On January 18, 2016, at 02:24 EST, the same Visa credit card account was used at the Casino Yellowhead for a credit purchase of $24,909.98. The transaction was declined. Three minutes later, there was a successful credit purchase on the same Visa credit card account at the same casino in the sum of $15,199.99.

[26]        Later on January 18, 2016, at 22:11 EST, the same Visa credit card account was used at the Grey Eagle Casino for a credit purchase of $25,750. The transaction was declined. Twelve minutes later, the same Visa credit card account was used at the Grey Eagle casino for a credit purchase of $20,600. The transaction was declined.

[27]        Ten minutes later, the same Visa credit card account was used at the Elbow River Casino for a successful credit purchase of $25,750. One minute later, the same Visa credit card account was used at the same casino for a successful credit purchase of $8,240.00.

[28]        In total, the amount of $130,789.97 was obtained over a two-day period through the use of D.M.’s Visa credit card account.

[29]        Ms. Wong testified that on February 11, 2016, the bank received a request, purportedly from R.W., a primary Visa card holder, of [address omitted], that “Jenn Thompson” of “#587 8328 207A St., Langley, BC” was to be added as a secondary Visa credit card user. She would pick up the Visa credit card at the bank branch located in the Westminster Mall in New Westminster, British Columbia. The individual purporting to be R.W. was, in reality, the co-perpetrator noted at para. 7.

[30]        On March 7, 2016, the accused attended at the bank branch in New Westminster. CCTV images captured her entering the bank. At 20:15 EST, the Visa credit card was activated.

[31]        The credit limit on this particular credit card was $30,000. On March 7, 2016, at 22:08 EST, R.W.’s Visa credit card account was used at the Ice Currency Exchange at YVR for a successful cash purchase of $28,195.10. Approximately three hours later, there was another successful cash purchase of $15,703.60 in which the same Visa credit card account was used at the same Currency Exchange. A little more than an hour later, the same Visa credit card was used at a bank ATM in Surrey for a successful cash advance of $800. CCTV images captured the accused using the ATM.

[32]        The total loss to the bank relating to R.W.’s Visa credit card was $44,698.70.

[33]        Massoud Tehrani was a surveillance supervisor at the Edgewater Casino in Vancouver. He was also an experienced casino dealer. He was working at the casino on December 11, 2015, at the time the accused withdrew $19,000 using the TD Visa credit card registered to L.H.

[34]        He identified the accused from CCTV surveillance footage that was played in court. The footage captured the activities of the accused that evening.

[35]        The accused was observed presenting identification to the money cage manager. She appeared to present a health care card and possibly a passport.

[36]        As the sum being requested was large, internal security protocols were automatically activated to determine whether or not there was any irregularity taking place. The Casino did not note any irregularity, and the “go-ahead” was given.

[37]        Mr. Tehrani testified that $19,000 was a large sum but not unusual at the casino.

[38]        CCTV surveillance footage also captured the accused, after she received the $19,000, going to a roulette table, where she purchased $100 in chips with a $100 bill. This was the minimum number of chips for that particular roulette table.

[39]        Mr. Tehrani testified that the accused won $84. She then put the $100 and her winnings of $84 down on various numbers. She lost the full amount. She then left the casino, went to the taxi loop and caught a taxi. She had been at the roulette table for 20 minutes.

[40]        In Mr. Tehrani’s opinion, the accused did not appear to be experienced at roulette. Referring to the CCTV surveillance footage, he described her betting $10 on black and $10 on red, which, “… as experienced roulette player, you never do that”: Transcript, October 19, 2018, p. 22, ll. 19-25.

[41]        The real “W.S.”, who was the primary TD Visa credit card holder in relation to the attempted use of the credit card at the Starlight Casino, testified that he noticed a problem with his TD Visa credit card in January of 2016 when he checked his credit card statement and saw there was a “gigantic withdrawal” from a casino in British Columbia.

[42]        He contacted the bank and was told by a representative that another person by the name of Ivan or Yvonne Thompson had been added as an authorized secondary credit card user.

[43]        In an interview with the police, he denied knowing anyone by the name of Jennifer Yvonne Thompson.

[44]        He had never seen the accused before testifying at this trial and had not authorized her, or anyone else, to be a secondary credit card user.

[45]        “D.M.”, the primary TD Visa credit card holder in relation to the credit card used by the accused in Alberta, testified that in or about January of 2016 he noted some anomalies in relation to his credit card statement, and contacted the TD Bank.

[46]        As a result of a conversation with a TD bank representative, he determined that there had been some fraudulent transactions with respect to his credit card.

[47]        He did not know the accused, nor had he ever seen her before testifying at this trial.

[48]        He had not gone to any casinos in Alberta in January of 2016.

[49]        He never authorized anyone to be added to his TD Visa credit card account as a secondary user.

III. THE ACCUSED

(i) Direct Examination

[50]        The accused is 29 years old. She is the mother of a seven-year-old daughter. She is certified in Early Childhood Education. She currently works at a pre-school day care centre.

[51]        From mid-2015 until mid-2016, her primary source of income was through social assistance. It was also in this timeframe that she decided to make some “extra money” by hopefully meeting a man of means on an online dating service called “Sugardaddy.com”.

[52]        She had never previously used an online dating service.

[53]        She created an online profile, and in or around October 2015, she began to communicate with a man called W.S. (“Warren”). She described Warren as “… basically a wealthy man, he owned businesses, he was from Alberta, he was married”, Transcript, April 8, 2019, p. 4, ll.26-30.

[54]        The relationship lasted approximately eight months. They communicated with each other by email and telephone. Though there were plans to meet, they never actually physically met each other.

[55]        After charges were laid against the accused, she tried to log back into the website to retrieve messages sent to and from Warren, but he blocked her as a user.

[56]        She deleted email exchanges with Warren because she was in a common-law relationship.

[57]        In their initial conversations, Warren suggested that he would send her a weekly allowance by way of certified cheque or email deposit. She was not comfortable with this, stating:

… Both of which methods I was not okay with at the time. I had offered to him email money transfer knowing myself that it was the safest. I didn’t have to give any of my personal account information to him. And then the conversation aroused (sic) about shopping and him adding me to his credit cards to be able to use the credit card in my cards.

(Ibid, p. 6, ll. 1-9)

[58]        She felt it would be safer to utilize an email transfer, as she would not have to reveal any personal banking information. However, before that method of transfer could be established, the “idea” came up in which Warren would add her as a secondary user on his credit card.

[59]        She gave Warren her address, her date of birth, her telephone number, and her social insurance number.

[60]        The plan was that she would use Warren’s credit card at casinos. Warren proposed that she would take out a cash advance to gamble:

Q         Did he give you any explanation for why that was the way he wanted to do it?

A         Because he gambled, so, typically, his wife would not see it as any other unordinary expense coming off of his credit card. He would be able to put it back, he did gamble, it was just -- and the bank didn’t carry that amount of cash to a walk‑in customer versus the casino having a better cash flow.

(Ibid, p. 7, ll. 9-17)

[61]        The plan was that the money would then be used between the two of them for “airline flights, casino gambling and hotel expenses”.

[62]        The accused recalled receiving by mail a CIBC Visa credit card in or around the middle of October 2015. When she received it, she phoned Warren to let him know. He told her that he did not want her to use the credit card and that she should “just throw it in the garbage”. She did as she was instructed.

[63]        In early December, she was instructed by Warren by telephone to pick up a TD-issued credit card at a local TD branch. She recalled that it was likely on the same day of his telephone call that she went to the TD branch. She showed two pieces of identification. She received the credit card and then set the PIN at the bank ATM terminal.

[64]        After she activated the credit card, she left the bank and telephoned Warren to let him know that she had the credit card. While the plan had been that he would join her at the Edgewater Casino, he told her that he was delayed and could not meet her.

[65]        He requested that she go to the Edgewater Casino later that evening and withdraw a cash advance of $19,570. She complied with his request and went on her own to the Edgewater Casino. At the casino, she went to the cashier wicket, presented identification, and then inserted the credit card in the casino terminal and received the cash advance of $19,570.

[66]        She then went and put $100 down on the roulette table, and then left the casino. It was her understanding that Warren would meet her somewhere in downtown Vancouver but that did not happen, so she just went home.

[67]        Subsequently, there were telephone conversations with Warren. He told her that he could not make it to Vancouver as he was “caught up at work or with family” and he “mentioned that maybe” he could make it in the next day or so, but he could use the cash advance if she could mail it to him to a PO Box that he provided in Alberta.

[68]        She mailed the money to Warren to his PO Box, but kept “maybe $1,000” as agreed with Warren.

[69]        She was asked what she did with that credit card. In response, she stated:

A         I disposed of it.

Q         Was that your idea?

A         No, it was his.

Q         Okay. And disposed of it, I take it, put it in the garbage or --

A         Put it in the garbage.

Q         Why did you do that, dispose of it? What -- or what was your understanding at least of why that was something you --

A         The understanding was it had reached its credit limit and he would have to make the payments back on it before there would be money on it again to use.

(Ibid, p. 13, ll. 33-45)

[70]        A few weeks later, the accused was issued another TD Visa credit card at the request of Warren. The plan remained the same. He was going to come and meet up with her at another casino. They were going to “spend the money and do the same thing we were supposed to do the first time only this time he was going to be able to make it for sure”: ibid, p. 14, ll7-12.

[71]        She recalled that at this time she was to pick up the credit card at a different TD branch. She followed the same routine as before. Once she received word from Warren that the credit card was ready to be picked up, she went to the branch, showed her ID and activated the PIN at the ATM terminal.

[72]        She agreed that on this occasion, her address had been slightly altered by moving the last number “4” from the house number to the street name, and that her name had been slightly altered, from Jennifer Yvonne to “Yvonne J”. These alterations did not raise any issues in her mind.

[73]        After picking up the credit card, she was told by Warren that she could go to any casino she wanted, so she decided to go to the Starlight Casino in New Westminster as it was close to where she lived.

[74]        The procedure for getting money at the Starlight Casino is different from that used at the Edgewater Casino. At the Starlight Casino, the accused put the credit card into the casino ATM and was then issued with a cashier receipt that she took to the cashier at the front desk.

[75]        The cashier took the receipt and, after some delay, the accused was approached by police officers, who told her that the casino was denying the transaction “for their own reasons”. It was her impression that the police officers or the casino suspected that this transaction could be fraudulent.

[76]        She recalled giving contact information for Warren to security personnel at the casino and they contacted Warren, who confirmed that he had sent her to the casino to use the credit card.

[77]        The police seized the credit card. The accused went home and telephoned Warren, who assured her that everything was fine and that there were no issues in relation to the credit limit on the card or her identification. The casino simply elected to deny the transaction.

[78]        Had the accused been successful with the transaction at the Starlight Casino, the plan was that Warren would come to the casino.

[79]        On January 14, 2016, at the direction of Warren, the accused went to the TD branch in White Rock to pick up another TD Visa credit card. She provided her identification, received the credit card and then activated the PIN at the ATM terminal.

[80]        She then contacted Warren and suggested that they should meet in Alberta. She had been planning to go to Edmonton, Alberta, and stay with her cousins for a weekend. He agreed. The next day she drove to Edmonton but did not meet up with Warren. She explained:

A         I went straight to my cousins' while in contact with Warren. We didn’t meet that day, we had plans to meet on the following day, we never the following day and then the discussions about going to a casino and doing the withdrawals in Alberta came about.

(Ibid, p. 22, ll. 18-23)

[81]        Following these discussions with Warren, she recalled that she went to two or three casinos in Edmonton, where she made large cash withdrawals in the range of $30,000 - $60,000. Again, these amounts of money were sums suggested by Warren, as she was in touch with him throughout this timeframe by telephone and by email.

[82]        After completing the Edmonton casino transactions, Warren told her that he had a business meeting in Calgary the following day and that they could meet in Calgary. As a result, she drove to Calgary, but did not meet Warren. She did go to several casinos in the Calgary area where she performed five successful cash withdrawals in the sums of $20,000, $25,000, $15,000, a further $15,000, and $25,000.

[83]        She also went to a TD ATM to check the balance on the credit card. At the ATM, she attempted to withdraw sums of money in declining amounts, but on each occasion, the transaction was denied. She did not know why.

[84]        She was asked what became of such a large amount of cash:

A         I mailed it from Alberta on -- a day or two later. There was still no sign of meeting, I wasn’t about to drive home with it. He instructed that I could mail it, like, in fact, put it in two different mailing envelopes stamped from Canada Post to the same PO Box as before.

(Ibid, p. 24, ll. 40-45)

[85]        She thought she may have kept about $3,000 cash for her own use with the consent of Warren.

[86]        While she was in Alberta, at no time did she ever personally meet Warren. Notwithstanding, she continued to communicate with Warren. She described that they would talk and have “… moments of rekindling. Again, he was still supposed to come and visit or I would go back to Alberta and visit. Nothing ever became of that”: ibid, at p. 25, ll.30-34.

[87]        A few weeks later, the two were talking. Warren suggested that they could travel to Seattle or elsewhere in the United States and gamble. He wanted to use American money. The accused was instructed to go to the Vancouver Airport and use one of the Currency Exchanges.

[88]        To carry out this plan, Warren told her that she should go to the New Westminster branch of the TD Bank to pick up yet another TD Visa credit card. She followed the previous routine in picking up and activating the credit card.

[89]        She then telephoned Warren to let him know that she had picked up the credit card. She was instructed to go to the airport, with the plan that they would meet later that night when she was finished at the airport.

[90]        When she arrived at the airport, she went to the Currency Exchange, gave two pieces of identification, and then conducted two cash withdrawals using the TD Visa credit card. In the first transaction, she received $28,195 USD. In the second transaction, she received $15,703 USD.

[91]        After receiving the money, she stayed at the airport for a period of time and then left. She then went to a TD Bank ATM to withdraw any remaining credit on the credit card. She successfully completed a cash withdrawal of $800 Canadian.

[92]        She went home and telephoned Warren:

A         I phoned him, let him know that I had finished the transactions at the airport and he was supposed to be there that night. He had given me a timeline, that he would be a few hours.

Spoke with him a few hours later and, in fact, he was not coming, but he would be there the next morning. The next morning came and he was not on his way again.

Maybe another day later, through conversation, I was instructed again just to mail the funds because he wouldn’t be able to make it.

(Ibid, p. 30, ll. 3-13)

[93]        She mailed the American money to Warren by regular mail to the same PO Box in Alberta. She kept the $800 Canadian. She explained that it was partially her idea to keep the Canadian money:

A         Partially mine, I just, at the time, didn’t see any use for the American money, not really thinking that I could, obviously, exchange it back to Canadian, but it was just agreed upon that it would go to him because, as before, I was supposed to see him in a few days anyways.

(Ibid, p. 30, ll. 42-47)

[94]        She was also told by Warren that the credit card “was done for” and that she was instructed to get rid of it. She got rid of that credit card.

[95]        She did not receive any further credit cards from Warren. There were some communications between her and Warren, but she felt that nothing was going to happen in this relationship and they drifted apart.

[96]        She did not recognize the voice of the co-perpetrator referenced at para. 7 of this judgment. She said it was not the voice of Warren.

[97]        Until charges were laid against her, she did not suspect at any time that the person identified as Warren was not actually the person who was entitled to provide the various TD Visa credit cards.

[98]        She was relying on the TD Bank to ensure that the various TD Visa credit cards that were issued to her as a secondary user were all legitimate. If something was not legitimate, then the bank would have “caught it”.

[99]        Similarly, she relied on the security systems in place at the various casinos she visited. These casinos would only approve transactions if they were legitimate, and that is why she always used her own identification.

(ii) Cross-Examination

[100]     The accused testified that she was going to be paid $1,000 per week by Warren to be his mistress, even though he was a total stranger and they had never met.

[101]     She was asked to explain why she was not comfortable with Warren paying her by way of a certified cheque:

Q         So why were you not okay with that?

A         Because I just assumed that anybody could write a cheque and sign it, I wouldn’t know where the cheque was coming from and there was an option of a cheque going into my account and it bouncing.

Q         You said it was a certified cheque, correct?

A         Yeah. That doesn’t mean nothing to me. He could've had a fake chequebook, he could've put a fake signature on it, it could've not been his. I didn’t -- I wasn’t -- he didn’t write it presently next to me, it wasn’t, like, receiving a cheque from an employer, it was receiving a cheque from a stranger. It could've bounced, it could've been fraudulent.

(Ibid, p. 38, ll 3-7, ll. 36-44)

[102]     It was Warren’s idea that she be added as a secondary user to one of his credit cards. The proposal did not seem unusual to her. She was “okay” with being a secondary credit card holder on the account of a total stranger, but not with receiving a certified bank cheque from him.

[103]     When she was asked if she was concerned that she could potentially be held accountable for that credit card, she explained she had that conversation with Warren and he assured her he was personally insured.

[104]     She explained that apparently this was not uncommon for men who use sugar daddy sites:

THE COURT: Insured?

A         Essentially how all of these men are in this situation that we're in.

THE COURT: I have no idea.

A         Yeah.

MS. GODLEWSKA:

Q         You're saying men who use sugar-daddy sites have insurance on their credit cards for that?

A         Anybody who has a TD Credit Trust credit card has insurance through your bank. I'm saying public ‑- publicly speaking or public knowledge is you have insurance through a bank.

Q         Insurance in case you use it fraudulently.

A         No, in case anybody.

Q         But what -- weren’t you concerned that you might be on the hook for these large transactions that were happening on a card on your name?

A         No, I was not.

Q         How come?

A         Because I had the okay from someone who -- who did it, whether it was my husband or a stranger or I was a mistress. I was okayed to do that.

THE COURT: Sorry, I'm not following your answer. What do you mean it's okay to do that?

A         Like, I didn’t -- like, he had given me the okay to receive this card.

THE COURT: Warren?

A         Yes.

MS. GODLEWSKA:

Q         A man you never met?

A         Correct.

Q         And you get a card with your name on it from the bank?

A         Correct.

Q         And you're not concerned that the bank is going to ask you to pay the balance once you take out $20,000?

A         No.

Q         Why?

A         I guess it never crossed my mind that way.

(Ibid, p. 40, ll.33-47; p. 41, ll. 1-25)

[105]     In relation to the Edgewater Casino cash withdrawal of $19,000 on December 12, 2015 (Counts 2 and 3), the accused testified that Warren was delayed in his office back in Calgary and that he would be there after dinner. She believed that he was looking at flight schedules.

[106]     She was hopeful that he was going to be there with her after she had withdrawn the $19,000. She had never done a cash withdrawal at a casino and did not know how much time was required.

[107]     The accused was asked again if it was her expectation that Warren would be flying from Calgary and meeting up with her at the casino. She explained:

Q         So you're talking to him about a half an hour before you go to the casino and you're hoping he's going to fly from Calgary --

A         No.

Q         -- to Vancouver and be at the casino --

A         No.

Q         -- when you're done this transaction?

A         No, no. That's not my assumption. My assumption is that I would be in contact with him when I was finished and he would hopefully be coming. Whether it was an hour after or the next morning after, as long as it was coming. It -- there was no specific -- I didn’t have any demands that he should be on the other end of the doors when I walked in. There was never any specific agreement there towards that, it was just that he was coming. It was always, like I say, a delay. It would be that late evening, it would be the next morning and I never got a for sure answer until after it was done.

But, I mean, I do know that a flight takes 45 minutes, so if he booked it at midnight he would be there in an hour, so

Q         Well, does he live at the airport?

A         No, I have no idea where he lives. He could though.

(Ibid, p. 47, ll. 27-47; p. 48, ll. 1-5)

[108]     The accused then testified that she thought it was “possible” that Warren was at the airport and was waiting for a standby flight. She felt “anything is possible. And who was I to judge?”: ibid, ll. 17-23.

[109]     After she withdrew the $19,000 and placed the $100 on the roulette table, she went home, though she recalled that she had testified in direct examination that the plan was that they would be meeting downtown. She explained that Warren consistently made excuses as to why they could not physically meet up.

[110]     When questioned about where Warren lived, she testified that it could be Calgary, Edmonton, or Red Deer, but she simply did not know for certain. She explained that Warren would “sometimes” be in Calgary, Edmonton, “… sometimes he would be wherever. It was - - he was a businessman and he travelled”: ibid, p. 50, ll. 4-12.

[111]     The accused was asked if she was concerned that Warren’s wife would see the large Edgewater Casino cash withdrawal on the credit card statement when Warren was never even there. She replied:

A         I mean that's absolutely a possibility, but in my -- I didn’t know where he was. Maybe he was in B.C. Maybe his wife would think he was in B.C. I was only speaking with him by a telephone and an email, he could've been anywhere in the world. He could've been outside that casino. So at that point in time I did not know and I did not -- I guess it wasn’t my problem if his wife was seeing the credit card statements.

(Ibid, p. 51, ll. 6-14)

[112]     She testified that she sent the cash to a PO Box in Alberta, not because she thought that Warren would use the funds to meet with her, but, rather, because it was his money. She “assumed he had tons more money”, though she was not certain what he did for a living. She believed he was a real estate agent.

[113]     She was unable to explain why it was necessary to throw a Visa credit card away because it had reached its credit limit. She agreed that Warren had told her he was going to make a payment on the credit card and then he told her that she had to throw the card away. She agreed with the Crown’s suggestion that this did not make sense.

[114]     The accused agreed that the sum of $17,900 ($19,000 less the $100 gambled and the $1000 that the accused kept) in $100 bills was “quite a stack of cash” to put in the mail. She agreed that she had never mailed such a large amount of cash in her life. To her knowledge, she never heard of anybody else mailing such a large amount of cash. However, she did not find it odd that she was mailing it, explaining:

A         I didn’t want the money, I didn’t want that much money in my possession and I wasn’t about to get on a plane with it and fly it to him. If he wasn’t coming here, to me it didn’t matter if it got lost in the mail or a postman stole it, it was not in my possession no more.

(Ibid, p. 53, ll. 20-25)

[115]     She further testified that she did not consider it odd that Warren wanted her to mail the cash through Canada Post, rather than depositing the money into a bank account.

[116]     She testified that her suspicions were not aroused with respect to the TD Visa credit card that she ultimately attempted to use at the Starlight Casino when she was instructed by Warren to pick up that credit card at a different TD Bank branch and the name on the card was “Yvonne J Thompson”, rather than Jennifer Yvonne Thompson.

[117]     What she was concerned about was the fact that Warren kept making up “a bunch of excuses” over plans to meet. She testified that she was not “… suspicious in any form, I’m just maybe irritated that he isn’t coming and I would be liking him to, but as far as suspicious goes, no, I mean, if I seen him or I didn’t, it wasn’t, I guess, a harm”: ibid, p. 59, ll. 26-32.

[118]     Nor was the accused troubled that while she viewed herself as his mistress, Warren could not seem to get her name right. She believed that it was actually the bank that was getting it wrong and not Warren. She never thought to ask Warren if he was giving the variations of her name to the TD Bank.

[119]     The accused testified that had she been successful in withdrawing money from the Starlight Casino, it would have been “ideal” if she could have met Warren at a hotel or even at her place that evening or the next morning.

[120]     When the Crown suggested that meeting at her house would not be a good option because her common-law spouse was living with her, the accused stated, “No, I just mean it was an option that he could have ever showed up at my house, it was simply speaking”: ibid, p. 63, ll. 16-20.

[121]     When the Crown suggested that the accused could not have had any expectation that Warren would in fact show up in light of his previous no-show at the Edgewater Casino, she explained:

Q         You know this is the exact same pattern as last time, you don’t even know where he is or when he's coming or –

A         I just had to trust that he --

Q         -- whether he's in Alberta.

A         -- I had to trust that maybe he would be there this time. I -- I -- I couldn’t look into the future as to, yes, he would be or, no, he wouldn’t. I -- I mean I assumed that because I was again being trusted with his credit card and his money that maybe this time he would show up, absolutely.

(Ibid, p. 63, ll. 33-44)

[122]     The accused testified that when the police came to the Starlight Casino and advised her that the TD Visa credit card that she attempted to use could be fraudulent, that did not give her any concerns. It was her understanding that someone in security at the casino contacted Warren to get his authorization, which was then relayed on to the police officers.

[123]     When the Crown put to the accused the testimony of Constable Leaver, one of the three attending police officers, that she had called a representative of the TD Bank, but did not have a telephone number for Warren and that it was not appropriate to call him at such a late hour, the accused stated that that did not mean that the other two police officers did not feel the need to call Warren.

[124]     The accused testified that while the police and the Starlight Casino were concerned that the TD Visa credit card that she attempted to use at the casino might have been fraudulent, this did not cause her concern, because their suspicions were based on incorrect assumptions.

[125]     Similarly, she was not concerned that Warren lied when he said that he was definitely going to show up, because he could very well have been delayed as he was a businessman, had a family and “anything could’ve happened”. It did not mean that Warren was lying.

[126]     The accused did not think it was “weird” that when she picked up the next TD Visa credit card on December 16, 2015 (Count 6), at the White Rock TD Bank branch, the surname on the card was “Yvonne”.

[127]     She testified that although she had recently had contact with the police at the Starlight Casino concerning a possible fraud, the omission of her actual last name on the new credit card did not strike her as odd or irregular.

[128]     Prior to picking up this particular TD Visa credit card, she had agreed with Warren that she would come to Alberta. She left the next day. She went straight to her cousins’ place in Edmonton, but could not recall the address, other than it was in a neighbourhood called Mill Wood.

[129]     The accused testified that notwithstanding her contact with the police at the Starlight Casino, she had no concerns that she would again be using a TD Visa credit card purportedly authorized by Warren to withdraw large amounts of cash from various casinos.

[130]     She testified that when she went to the Casino Edmonton and withdrew $40,000 in two $20,000 transactions, she did not feel the need to wait for Warren before she executed both transactions.

[131]     It was her belief that the two of them would meet up over the “next day or two” based upon what Warren was telling her.

[132]     In any event, after she received the $40,000, she told Warren “right away” that she had the money. He instructed her to drive directly to another casino.

[133]     Prior to arriving at the next series of casinos, she was instructed by Warren to stop at a bank ATM to check the balance on the credit card. She was unable to say why Warren wanted her to check the balance on his own credit card.

[134]     When the accused was asked to explain why Warren would instruct her to go to another casino potentially using a depleted credit card, she assumed that he would be making a payment on the credit card, but otherwise she did not know the answer.

[135]     After five declined attempts to withdraw money at the ATM in descending sums of $1,000, $500, $200, $100 and $40, she contacted Warren telling him that the credit card appeared to be “empty”.

[136]     She testified that the plan remained the same: they would meet up and spend the $40,000 she had withdrawn at the Casino Edmonton on gambling, going for dinner, staying at a hotel, going to the spa and shopping.

[137]     However, despite this plan, Warren instructed her late in the evening on January 17, 2016, to go to another casino to make further cash withdrawals. She had spent the balance of that day staying with her cousins with the $40,000 sitting in her purse.

[138]     She testified that it was not up to her to decide if the $40,000 was enough for her and Warren to spend going out for things like going to the spa and shopping. She did think it was maybe strange that Warren wanted her to go to another casino to withdraw another $40,000 on a “drained” credit card, but she did not see a reason not to do it.

[139]     When it was suggested to her that when Warren instructed her to go to a second casino a second day in a row and take out another $40,000, the possibility of fraud might have entered her mind, she responded, “No. Did it seem strange? Yes. Did it seem like fraud? No”: ibid, p. 91, 35-40.

[140]     The accused testified that once she got the further $40,000 cash from the next casino, she did not expect that the $80,000 would all be spent on her. She did agree it would be more than enough for a “good date”, and if it was all to be spent “in one shot” then it would be a “good time”.

[141]     She agreed that she never asked Warren exactly what the money was to be spent on. She did not ask that question but, in her mind, she thought perhaps Warren was leaving his wife or “plotting something”, but she did not know.

[142]     All she knew was she had a credit card with her name on it and the River Cree Resort Casino in Edmonton approved two cash transactions for $25,000 and $15,000 respectively on January 17, 2016, netting $40,000 to the accused.

[143]     After receiving the $40,000, she contacted Warren to tell him she had the money. However, rather than meeting up, he made up another excuse not to meet with her. Instead, he instructed her to go to another casino and withdraw further money. She did not question that instruction or make any inquiry as to why she was taking out more money for a man she had never met.

[144]     She agreed with the Crown that on January 18, 2016, following the instructions of Warren, she withdrew $15,000 from the Casino Yellowhead at 02:27 EST, following a declined transaction for $25,000 one minute earlier.

[145]     She then moved on to the Great Eagle Casino, where two attempted cash transactions were declined at 23:04 EST and 23:05 EST for the sums of $25,000 and $20,000 respectively.

[146]     Approximately one hour later the accused was at the Elbow River Casino, where there were two successful cash withdrawals at 23:33 EST and 23:34 EST for the sums of $25,000 and $8,000 respectively.

[147]     She agreed with the Crown that she then drove through the night back to Edmonton with Warren’s $130,000. She was certain that they were going to meet.

[148]     Over the next two days in Edmonton, the accused waited to meet Warren for the first time. The Crown suggested that the accused most certainly thought she was going to be going out on a great date – a real “blowout”. The accused agreed:

A         Well, I mean I've spent -- I'm invested now, probably, what are we at? You know, close to five months talking to this man back and forth on a daily basis. So my investments were -- were there, too, and now, like you said, I had $130,000 of his money in my purse. So at this point in time I wasn’t going to jump in my car and drive home with the hopes that I was not meeting him. I would have stayed another ten days if it meant that, yes, he was going to be there at some point in time.

(Ibid, p. 102, ll. 34-44)

[149]     The accused agreed with the Crown that over the next couple of days it seemed strange that Warren did not want to meet with her. The Crown asked the accused whether or not she also thought it was strange that she was walking around with his $130,000 and that he could not find five minutes to meet so he could get his money. She explained:

A         Because that's the nature of this website, the nature of this website is that men have lots of money, they are wealthy and they pay women for -- for favours, whether it be sexual or intimate or, I mean, hey, if I sent him a naked picture of me it was worth $1,000 to him. That -- that's the nature of what -- if you want to call them pigs, that's what they are, that's what they do. That is what a sugar-daddy is made out to be and that is what they do.

(Ibid, p. 104, ll. 34-43)

[150]     The accused testified that it was a “win” for her that she did not have to sleep with Warren. That was not her goal. With that in mind, she was not giving up meeting with Warren.

[151]     After a couple of days, Warren got in touch with the accused and instructed her to mail the money to his PO Box in Alberta. She had no idea what he was going to use the money for, but thought he could have required it for gambling, for business or for another mistress - there were a “million possibilities”.

[152]     In any event she testified that she packed up the money in bubble wrap and mailed it to his PO Box in Alberta. She kept $3,000 for herself. The idea of fraud did not enter her mind.

[153]     She agreed that Warren had lied to her concerning his intention to meet with her. Those lies did not cause her to think that fraud may have been in play.

[154]     She testified that Warren instructed her to get rid of the TD Visa credit card that she used at the various Alberta casinos. She got rid of that credit card.

[155]     Shortly after her return to British Columbia, Warren pitched the plan to get American currency from a Currency Exchange at the Vancouver Airport. At this stage the accused was still not prepared to wash her hands of Warren.

[156]     The accused testified that she followed the same routine in picking up the TD Visa credit card authorized by Warren at the Westminster Mall TD branch on March 4, 2016. Again, the accused was not questioning why she was picking up these various credit cards at different TD branch locations. In her mind, “A branch is a branch. It does not matter what bank or branch I walk into”: ibid, p. 114 at ll. 8-12.

[157]     She also agreed that she did not question the fact that the given name on the card was “Jenn”, rather than Jennifer, as it was still her name. This circumstance did not give her any concern.

[158]     The accused agreed that she went out to the airport on March 8, 2016, and successfully withdrew two cash amounts of $28,000 and $15,000 respectively in American currency, using the latest TD Visa credit card authorized by Warren.

[159]     The accused testified that she followed Warren’s instructions when she withdrew the cash. After that, she waited at the airport for Warren to arrive. However, after she had completed the second cash transaction at the Currency Exchange, he informed her that he was not coming to Vancouver.

[160]     The accused testified that she was “absolutely” surprised because she really thought, in her mind, that this time they were going to meet.

[161]     The accused left the airport and on her way home, following the instructions of Warren, stopped at a TD ATM to withdraw the remaining credit balance on the card in the amount of $800. She viewed this $800 as an allowance from Warren and not compensation.

[162]     She also followed Warren’s instructions to get rid of the credit card that she used at the Currency Exchange.

[163]     The Crown asked the accused why she was still taking instructions from Warren. She answered, “Because I was honest and did what he said … it is, a sugar daddy is a relationship where he’s in control”: ibid, p. 116. ll. 10-26.

[164]     The accused conceded that she may have been naïve in her relationship with Warren, but throughout the relationship, she had no reason to believe that she was not going to meet him.

(iii) Questions by the Court

[165]     The accused testified that she believed Warren was a real estate agent, but she made no inquiries of the Real Estate Council of Alberta to find out whether he existed and where he worked.

[166]     She testified that while she did have a photograph of Warren, she did not use the Real Estate Council of Alberta website to see if the photograph matched up with any of the listed agents.

[167]     She did not think it was unusual that someone who was purporting to be a real estate agent would be instructing her to mail large sums of money by regular mail to a PO Box in Alberta.

IV. POSITION OF THE PARTIES

(i) The Crown

[168]     The Crown submitted that the accused’s denial that she was knowingly engaged in a fraudulent credit card scheme ought to be rejected as implausible. The accused had either actual knowledge of the fraud, or was wilfully blind to the fact that she was using and receiving money from a credit card to which she was not entitled.

[169]     The Crown says that the Sugardaddy.com scenario, which the accused asserts was the platform that she used to establish her mistress relationship with Warren, was a fabrication. Certainly the accused probably hooked up with Warren online, but beyond that, the evidence does not establish any sort of romantic relationship.

[170]     The Crown says that it was implausible that the accused would be prepared to engage in a romantic relationship with a total stranger when she did not have even basic information concerning where Warren lived or what he did for a living. The accused was unable to retrieve a single email, text message or phone record to corroborate her evidence with respect to the nature of her relationship with Warren.

[171]     The Crown says that it did not make sense that the accused declined Warren’s proposal that she receive her “allowance” by way of certified cheque because she was concerned that it would bounce, but accepted his alternative proposal that she receive her allowance by being added as a secondary credit card user.

[172]     Only one of the primary credit cards was issued to a “Warren” (“W.S.”). The Crown says that there was no credible evidence to explain why the accused would be a secondary credit card holder with respect to the cards issued to ”L.H.”, “D.M.” and “M.G.”.

[173]     It was the Crown’s submission that in relation to the Edgewater Casino transaction (Counts 2 and 3), the actions of the accused in using the TD Visa credit card registered to “L.H.” to withdraw the $19,000, mailing the net amount to Warren, and then destroying that credit card, establish the requisite mens rea and actus reus to prove fraud beyond a reasonable doubt.

[174]     The same reasoning, it submits, would support the Crown’s position that it has established proof beyond a reasonable doubt that the accused either attempted to commit fraud or did actually commit fraud in relation to the remaining Counts contained in the Information.

[175]     The Crown says that the cumulative effect of the accused’s actions in her use of the multiple TD Visa credit cards issued to her is sufficient to push her into the category where her wilful blindness can be equated to actual subjective knowledge.

[176]     With respect to the Crown’s secondary submission – that the accused was wilfully blind to the fact that she was participating in a fraudulent scheme – the Crown submits that there were many “red flags” that should have aroused the accused’s suspicions, including:

                     The requests to mail large sums of cash to a PO Box in Alberta;

                     The police investigation of the credit card the accused was using at the Starlight Casino;

                     The fact that several attempted transactions with the credit cards were declined;

                     The fact that the cards were picked up from different locations, had different versions of the accused’s name and/or address, and had to be destroyed after use; and

                     The fact that Warren made repeated excuses to avoid meeting up with the accused, even when she had large sums of his cash in her possession.

[177]     The Crown says that it is implausible that the accused would provide her name, address, date of birth and telephone number and be set up as a secondary credit card user on the account of an individual that she never laid eyes upon, for the purpose of being paid an allowance for romantic services never provided, and not have any suspicions that she might be engaged in fraudulent activity.

(ii) The Accused

[178]     The accused submitted that she did her best to honestly, candidly, and without embellishment recall events that took place over three years ago.

[179]     She submitted that she was duped into the fraudulent scheme by Warren, and maintained her honest but mistaken belief that she was in fact involved in a romantic relationship with Warren, as his mistress.

[180]     She submitted that throughout her relationship with Warren, she had an honest belief that they would finally meet to go out on a date. That was the whole idea when she met Warren online. Warren was the “sugar daddy”. Warren was in control.

[181]     She submitted that throughout all the transactions, she produced valid identification, and made no effort to hide from CCTV cameras or disguise herself. When she went to the Starlight Casino, she again presented valid identification, and was surprised when the police arrived and began to ask her questions about the credit card. However, when she left the casino, not under arrest and not charged with anything, she still believed the credit card was validly issued to her as a secondary user.

[182]     She submitted that picking up the cards at different TD branches, and the fact that the cards included variations of her name and address, did not arouse any suspicions. She trusted the TD Bank and the casinos to tell her if she was engaged in any fraudulent transaction. Other than the Starlight Casino’s concerns, there were no indications from the TD Bank or the other casinos where she conducted cash transactions that there was any issue with respect to the credit cards that were issued to her as a secondary user.

[183]     In relation to her trip to Alberta (Count 6), the accused submitted that she followed instructions and went to a different TD branch to pick up the third credit card, which she believed was to replace the card seized by the police at the Starlight Casino. She produced valid identification, and there was no suggestion when she received the third credit card that there was anything wrong with this credit card, otherwise the bank representative would have brought that to her attention.

[184]     She submitted that she simply followed Warren’s instructions to go to the various casinos in Calgary and Edmonton. In her mind, she believed she had permission to do this, as it was Warren’s TD Visa credit card, and ultimately any cash withdrawn was his money.

[185]     She submitted that she was not concerned that Warren asked her to mail the cash to her. It was his money, and he was entitled to receive it and use it as he saw fit. The fact that she was instructed to dispose of the TD Visa credit cards after they had been used by her was a “trust measure” that Warren used, and she simply followed his instructions.

[186]     The accused submitted that she trusted Warren, and that if she thought something was strange or suspicious with respect to the various TD Visa credit cards issued to her as a secondary user, at most any suspicion would amount to no more than a mere possibility of a fraud taking place, which is not sufficient for a finding of willful blindness.

[187]     In conclusion, she submitted that there were three core issues to keep in mind in assessing her credibility and reliability:

1.            That Warren was a fraudster, and by his nature he was able to convince her that everything was fine;

2.            That it was reasonable for her to rely on TD Bank security procedures and there was nothing about her actual behaviour that betrays any subjective knowledge of risk or criminality; and

3.            That she was candid and frank throughout in direct examination and cross-examination in her testimony that she believed that Warren was the actual registered primary credit card holder who authorized the TD Bank to issue credit cards to her as a secondary user.

V. LEGAL FRAMEWORK

[188]     Both the Crown and the accused, in their submissions, made reference to the Supreme Court of Canada (the “SCC”) decision in R. v. Theroux, [1993] S.C.R. 5.

[189]     In Theroux, the SCC established that the test for the mens rea of fraud is subjective:

18 This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused’s intention and the facts as the accused believed them to be: G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 727-28.

[190]     In addition, the SCC in Theroux established that a trier of fact can impute knowledge from the criminal act:

20  The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.

[191]     The accused relied on the Ontario Court of Appeal (the “ONCA”) decision in R. v. Roach, 2004 CanLII 59974, at para. 27, for the proposition that she believed she was not doing anything illegal, and that at most she may have acted in a stupid manner.

[192]     In Roach, the appellant became involved in a telemarketing contest orchestrated by Dube. The scheme involved residents of the United States who had entered a legal contest. The appellant was convicted of being a party to a fraud and being a conspirator with respect to the same fraud.

[193]     In relation to the charge of being party to a fraud, the issue before the ONCA was whether recklessness is sufficient for establishing the mental element of the crime of being an accessory to the commission of a crime. That is not the situation here, where this issue of aiding and abetting is not in play.

[194]     Regarding the issue of credibility, the W.(D) framework developed by the SCC states:

11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. A trial Judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft-repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

VI. FINDINGS

[195]     The accused testified that she wanted to make some “extra money” by becoming a mistress for a man of means on Sugardaddy.com.

[196]     She testified that when she established her relationship with Warren, it was agreed that she would receive an “allowance” of $1,000 per week. Warren suggested he pay her allowance by way of certified cheque, but she was not comfortable with this proposal, and thought an email transfer would be safer. However, before she was able to suggest this, Warren came up with the suggestion that he would add her as a secondary user on his credit card.

[197]     If the accused felt that payment of her allowance by email transfer was “safer”, then it would only make sense that she would indicate that to Warren. This she did not do. Nor do her reasons for turning down a certified cheque make sense.

[198]     The accused did not strike me as naïve. To turn down a certified cheque because it was risky, but accept payment of her allowance through the issuance of a secondary credit card from a stranger who she had never met, made no sense.

[199]     Apparently, the only service that the accused was going to provide to Warren as his mistress was to go to various casinos and take out cash advances using the secondary credit card. Her explanation of why Warren wanted her to do it this way made no sense whatsoever.

[200]     The accused testified in direct examination that the plan was that after she got the cash from the Edgewater Casino, she would meet up with Warren in downtown Vancouver. That did not happen, and she simply went home: Transcript, April 8, 2019, p. 12, ll. 37-47. However, her testimony in relation to the Edgewater Casino in cross-examination was inconsistent with her direct examination. She said she believed Warren was in Calgary looking at flight schedules, and was hopeful that he would be there with her after dinner.

[201]     She then went on to testify that it was only her assumption that he would be in contact with her after she had withdrawn the cash, but there was never any specific agreement. She had no idea where he lived, but speculated that he could live at the airport and catch a midnight flight.

[202]     After Warren did not show up, he asked the accused to mail the cash to him. I find it incomprehensible that the accused would send almost $19,000 in bubble wrap via Canada Post to a PO Box somewhere in Alberta to a man she had never met.

[203]     The accused testified that Warren told her to throw the credit card that she used at the Edgewater Casino into the “garbage”, because it was her understanding that the credit card had reached its limit, and Warren would have to make a payment back onto the credit card if it was to be used again.

[204]     That explanation did not make sense. If it was so, why would she not simply request that he make a payment on the credit card to ensure that she would get her allowance?

[205]     The accused testified that she followed Warren’s instructions to dispose of all of the other TD Visa credit cards issued to her after they reached their maximum credit limit. She testified that this did not make her suspicious.

[206]     I find that the accused’s explanation for destroying each of the TD Visa credit cards issued to her to be unbelievable. Her explanation that he was the man and she simply followed his instructions amounts to stereotypical profiling, and I give no weight to such profiling.

[207]     I accept the evidence of Ms. Wong to be both credible and reliable in establishing that on every occasion that a TD Visa credit card was issued to the accused as a secondary user, there was a variation in the spelling of her name and/or her address. I also accept Ms. Wong’s evidence that the accused picked up the various TD Visa credit cards at different TD Bank locations in the lower mainland.

[208]     I do not find the variations in the names and addresses for the accused and the issuance of the cards at different TD Bank locations to be an anomaly. It was all part of a deceitful plan to avoid detection. To go back to the same TD Bank branch to receive the various TD Visa credit cards issued to different registered account holders would be far too risky, as it would likely result in the bank being able to identify the accused as a fraudster.

[209]     I also find that the accused’s use of legitimate personal identification was part of the plan. Once the accused was authorized by the TD Bank to be a secondary credit card holder, then if her status as a secondary user was called into question at a casino, she could request that the TD Bank be contacted to confirm she was authorized.

[210]     That is exactly what happened at the Starlight Casino when the accused attempted to use the W.S. TD Visa credit card and the police became involved.

[211]     The bank provided Constable Leaver with a residential address that was consistent with the address on the accused’s driver’s licence. It was for those reasons that the accused was not arrested, though the credit card was seized.

[212]     I find Constable Leaver to be a credible and reliable witness.

[213]     I reject the accused’s testimony that she ever gave contact information for Warren to anybody, including any staff member on duty at the Starlight Casino.

[214]     Constable Leaver testified that there was some “confusion” concerning the credit card because she had contacted the TD Bank, at the request of the accused. A bank representative confirmed that the credit card was registered to W.S. and the accused was authorized as a secondary user.

[215]     Though one would have thought that the involvement of the police with the accused at the Starlight Casino would have put the brakes on her relationship with Warren, it seems to have only created a brief “time out” before the accused made her way to Alberta with a TD Visa credit card linked to an account registered to D.M.

[216]     I find the circumstances surrounding the accused’s activities in Calgary and Edmonton to be astonishing. Over a two-day period and at various hours, she went to five different casinos in Edmonton and Calgary, she says at the direction of Warren, and withdrew a total of just over $130,000.

[217]     The accused testified that although Warren had failed to show for a date with her on two prior occasions, she remained confident that they would get together in Alberta. She trusted his word.

[218]     The accused testified that while she was in regular contact with Warren when she was in Alberta, he was busy with his family and could not get away. In cross-examination, she was asked why Warren could not even find five minutes to meet so he could get his $130,000:

Q         What about just meeting you for five minutes to get this $130,000 from you in person, did that come up?

A         Hey, that -- of course that crossed my mind, but  

Q         Did you discuss it with him?

A         Briefly at a point, I'm sure, yes.

Q         What was his reason for not doing that?

A         He just couldn’t swing it.

Q         That didn’t sound like a lie to you?

A         It sounded like an excuse, but whether or not it was valid or not, I couldn’t -- I couldn’t make a dead assumption on that, like, I couldn’t --

Q         I mean you're -- there's a lot of things piling up at this point, right? That are -- seem very strange? No?

A         I mean, yeah, it -- it seemed strange, that's fair to say, but it didn’t seem not right, I guess, like --

Q         How did it seem not right that a stranger was giving you $130,000 to walk around with for days and couldn’t meet with you for five minutes?

A         Because that's the nature of this website, the nature of this website is that men have lots of money, they are wealthy and they pay women for -- for favours, whether it be sexual or intimate or, I mean, hey, if I sent him a naked picture of me it was worth $1000 to him. That -- that's the nature of what -- if you want to call them pigs, that's what they are, that's what they do. That is what a sugar-daddy is made out to be and that is what they do.

(Transcript, April 8, 2019, p. 104, ll. 12-43)

[219]     I find the accused’s explanation to be absurd. I do not believe her.

[220]     The accused testified that after hanging around in Edmonton with her cousins for a couple of days, she was told by Warren to mail the money to him at his post office box address. After taking $3,000 off the top, she packed the balance in bubble wrap and mailed it to him via Canada Post. She disposed of the credit card that she used in Alberta.

[221]     Again, it was incomprehensible that the accused would send such a large amount of cash in bubble wrap to a PO Box somewhere in Alberta to a man she never met, without at least making some inquiry questioning whether or not this was a good idea.

[222]     The accused testified that she was an “honest person” in giving him his money and did not want to “argue” with him by suggesting they meet so she could give him his money.

[223]     When questioned in cross-examination as to why Warren needed all this money, the accused responded:

A         He gambled and he could've had a poker problem, he could've spent 50,000 of that in 10 minutes on a poker table. He could've used it for business expenses. He could treat another mistress somewhere. There's a million possibilities that he could've needed and used this money for, but ‑‑

Q         But you didn’t ask that question?

A         That was not my business.

(Transcript, April 8, 2019, p. 106, ll. 44-47 and p. 107 ll. 1-5)

[224]     I find the accused simply guessed why Warren needed so much money. It must be kept in mind that the accused testified that she was not sure if Warren lived in Calgary, Edmonton or Red Deer, and was not sure what he did for a living.

[225]     The accused’s testimony in relation to events in Alberta stands unsupported. Though she purportedly was staying with her cousins, no one took the witness stand to confirm that the accused was staying with them. In fact, the accused did not even know the street address for her cousins.

[226]     I find that she went to Alberta for the express purpose of withdrawing as much money as possible from casinos in both Calgary and Edmonton until the TD Visa credit card on the account registered to DM was dishonoured.

[227]     I find that the accused was testing the viability of that particular credit card at the TD ATM on January 16, 2016, when, within less than two minutes, there were five descending withdrawal attempts starting at $1,000 and ending at $40. All of the transaction requests were declined.

[228]     I find that it was not romance that motivated the accused to go to Alberta. The motivating force was the money. It was always about the money. It was never about using the money for “airline flights, casino gambling and hotel expenses”.

[229]     Similarly, I find it was not romance that motivated the accused when she went to the Vancouver Airport with a TD Visa credit card linked to an account registered to R.W., and in two separate transactions withdrew approximately $44,000 USD at the ICE Currency Exchange.

[230]     Not surprisingly, Warren did not show up on this occasion either. When questioned in her direct examination as to what she did after she withdrew the money from the currency exchange, she responded:

A         I phoned him, let him know that I had finished the transactions at the airport and he was supposed to be there that night. He had given me a timeline, that he would be a few hours.

Spoke with him a few hours later and, in fact, he was not coming, but he would be there the next morning. The next morning came and he was not on his way again.

Maybe another day later, through conversation, I was instructed again just to mail the funds because he wouldn’t be able to make it.

(Transcript, April 8, 2019, p. 30, ll. 3-13)

[231]     Her response made no sense whatsoever. I find it absurd that she would drive all the way to the airport to meet with Warren yet, other than a vague reference to “a timeline”, there was no mention of the carrier that he would be flying with or any reference to a schedule.

[232]     The accused testified that she was again instructed by Warren to destroy the credit card, and to mail the American currency to his post office box address in Alberta.

[233]     Again, it was incomprehensible that she would send such a large amount of money to a man she has never met in bubble wrap via Canada Post to a PO Box somewhere in Alberta.

[234]     I do not find the accused to be a credible witness. I do not believe her evidence that she was essentially duped by a man she met online when she agreed to be his mistress. She misled the court.

[235]     Nor am I left in a reasonable doubt by her evidence.

[236]     I am convinced based on the evidence that she had subjective knowledge of the prohibited act, and that she knew by activating and then using the various TD Visa credit cards that there could be a corresponding deprivation to the TD bank or other victims.

VII. DISPOSITION

[237]     I find that the Crown has established beyond a reasonable doubt that the accused committed an act of deceit resulting in deprivation to the TD Bank when she activated and then used the various TD Visa credit cards issued to her as a secondary user.

[238]     I do not find that the accused was wilfully blind. She knew exactly what she was doing. There were certainly others involved in this fraud, but she was a necessary link in perpetrating the fraud as an active participant.

[239]     I find the accused guilty of Counts 2, 3, 4, 5, 6, 8 and 9 of the Information.

[240]     I find the accused not guilty of Count 1.

[241]     A Stay of Proceedings was entered at an earlier date by the Crown in relation to Count 7.

 

 

___________________________

The Honourable Judge G. Rideout

Provincial Court of British Columbia