| Scanned copy, if there are errors, please e-mail me with corrections. There were errors in the original. There also appears to be a mixture of spellings. This copy is very close to the original but it is recommended you get a copy from Brampton court house to be sure all the details are correct. Opening comments: More at the end (& more soon to come). When a person reads this they should not think the Cliff Gyles is the only corrupt City of Mississauga Councillor & Region of Peel Councillor. Right now he is the only one caught. Was a deal cut? Where was the TV media? As the Ex-Councillor left the Brampton court building there were no TV cameras' or video of any kind, that I remember seeing. How is this possible? I smell a political hand at work, likely belonging to the Mayor who just over a week before (June 16th) celebrated 25 years as a elected official. The Crown would not be able to tell the video cameras' to stay away and not record this historical moment but I think Hazel could. For two good reasons. 1). Damage control - video has a greater impact on people and captures the event better then still pictures as well as more people will get their news from TV then print these days. 2). Stop people from questioning the illusion that Hazel is the perfect Mayor to rule them. So if there is nothing for them to see, then little for them to form the opinion that Mississauga is home to corrupt politicians and Gyles is just the tip of the ice berg that is the result of 25 years of Hazel McCallion. This at a time when people would be getting ready to celebrate Hazel again come Canada day and God forbid, re-elect her this fall. In truth the best way to remember the current Mayor of Mississauga, is to pass a bill, named after her of course, to limit terms that elected offices can serve in office consecutively, to make sure there will never be a mistake like Hazel McCallion again! REASONS FOR JUDGEMENT - WEIN J. COURT FILE NO.: 6098/02 DATE: 2003-06-25 BETWEEN: THE QUEEN - and - LINTON CLIFF GYLES HEARD: April 28 - June 6, 2003 Released: June 25, 2003 TABLE OF CONTENTS INTRODUCTION....................................................................1 THE EVIDENCE......................................................................1 A) BENISASIA INCIDENT.....................................................1 B) DHALIWAL INCIDENT...................................................11 C) OTHER EVIDENCE..........................................................14 RULING re SIMILAR FACT EVIDENCE..............................16 FINDINGS OF CREDIBILITY AND FACT...........................25 SCOPE OF THE CHARGES...................................................31 CONCLUSION.......................................................................34 INTRODUCTION [1] Councillor Cliff Gyles has been a municipal Councillor for the City of Mississauga and Region of Peel for many years. He is accused of demanding and accepting bribes on two separate occasions, in the course of his duties as a Councillor. [2] Before a conviction may be entered in a criminal case, the law requires a judge to be satisfied of guilt beyond a reasonable doubt. The trial judge must be sure that an accused person is guilty of the offence with which he is charged before a conviction can be entered. After undertaking a careful analysis of the law and the facts in this case, I find I am left with no reasonable doubt of Mr. Gyles' guilt on any of the charges. He must be found guilty. [3] Mr. Gyles is charged with the criminal offences of breach of trust and municipal corruption, in relation to two separate incidents. On each occasion it is alleged that as the Councillor for Ward 5 in the City of Mississauga, Mr. Gyles demanded or accepted a bribe in exchange for the exercise of his influence in obtaining rezoning for particular properties. [4] The core evidence marshaled by the Crown was introduced by the individual complainants, and in both cases this evidence was supplemented by audiotapes of conversations with Mr. Gyles. These conversations were surreptitiously recorded by one complainant without police involvement. In the other case, videotaped surveillance and authorized wiretap interceptions of conversations with Mr. Gyles were introduced through Peel Regional Police officers. A) BENISASIA INCIDENT OVERVIEW [5] The first set of charges arise from the rezoning of the Malton Legion property. A Mississauga businessman, Mr. Benisasia, had a dream to create a unique funeral home that would provide special services to members of the - 2 - South Asian community, of which he is a member. The funeral home Mr. Benisasia envisioned would specialize in ceremonies designed to meet the religious and cultural needs of that community. [6] In March of 2000, he made an offer to purchase the property of the former Malton Legion, a property he deemed to be perfect for his project. He believed that the property was already appropriately zoned because the real estate listing indicated that the property was ideal for a number of specific uses, including a funeral home. His real estate agent had also checked with the listing agent to assure himself that the zoning would allow use as a funeral home. Mr. Benisasia's offer on the property was accepted and a closing date was scheduled for June 2000. [7] Mr. Benisasia subsequently discovered that although the Legion was zoned for commercial use, specific use as a funeral home was not permitted. He would need to have the land rezoned. It was in the course of his attempts to obtain the rezoning that he met Mr. Gyles. [8] Rezoning can be accomplished in two ways. A rezoning involving a small issue can be obtained through a minor variance to the official municipal plan governing land use. Such a variance is granted by the Committee of Adjustment, which is a committee of citizens appointed to allow minor amendments to the official plan. This route is simpler than obtaining a formal amendment to the existing by-law governing the zoning of the specific area. [9] More significant rezoning issues must be dealt with by way of an amendment to the bylaw. Where such an amendment to the by-law is deemed to be required, either because the Committee of Adjustment declines to deal with the issue by way of a variance, or because the applicant brings the application in that manner, a more complicated and formal procedure must be undertaken. A formal application must be submitted and reviewed by the city Planning Department, various plans must be submitted and undertakings given, and the issue may be reviewed by a number of departments or interested authorities. Community meetings may be held to canvass public opinion. The plan will then be reviewed at three public sessions. The first of these is a meeting of the Planning Committee, which is a committee consisting of all Mississauga councillors. The application then proceeds to the City Council and is ultimately returned to the Planning Committee. In some circumstances, usually where the matter is not controversial, a protocol termed the "notwithstanding Protocol" may be adopted to obviate the need to go back to the Planning Committee the second time. - 3 - PRIOR EVENTS [10] Prior to the closing date on his property, set for June 2000, Mr. Benisasia discovered the problem with zoning. He had difficulty obtaining his expected financing as a result, but nonetheless decided to try to go ahead with the purchase. The purchase price was $500,000. Although he had already given a non-refundable downpayment of $75,000 and offered the Legion six months free rent, he was granted an extension for closing, to September 11, 2000, on condition that he pay an additional $75,000 to the Legion. [11] Mr. Benisasia was able to re-arrange private financing before the rescheduled closing date. In order to resolve the zoning problem, he was prevailed upon by his architect/designer, Vishnu Sookar, and also by the Legion's representative, to speak to Mr. Gyles. Mr. Gyles was and is the city Councillor for Ward 5, which included this property. With a view to obtaining Mr. Gyles' support for the funeral home project and advice as to how to obtain the rezoning, he arranged a meeting in July of 2000. JULY 2000 MEETING [12] The first meeting was held in councilor Gyles' office on appointment. The date is clear from a review of Mr. Gyles' appointment books, so the inability of either Mr. Benisasia or Mr. Gyles to accurately recall the timing is inconsequential. It was attended by Mr. Benisasia, Mr. Sookar, and the real estate agent who had found the property, (Cliff Janic). Two members of the community representing the Sikh and Tamil communities also attended to help convince Mr. Gyles of the cultural need for a unique funeral service establishment. [13] While there is a conflict in the evidence concerning the details of this meeting, it is not disputed the meeting did not go well from the perspective of Mr. Benisasia. It is clear that Mr. Gyles indicated his opposition to the project. Mr. Janic felt that Mr. Gyles was in a conflict of interest because he was a Legion member and had been opposed to the Legion's sale of the property, but Mr. Gyles did not agree that he had a conflict. Despite the rezoning issue and the problem in obtaining Mr. Gyles' support, Mr. Benisasia continued with his plans, and obtained ownership of the property on September 11, 2000. - 4 - REZONING APPLICATION [14] A formal rezoning application was filed on September 25 by Mr. Benisasia's company. Robert Hughes was the city planner assigned to the file. He was responsible for ensuring that the official requirements were met. These included the circulation of the application to various interested parties. Mr. Hughes was also responsible for liaising with the relevant ward councillor, setting up any community meetings that were requested, and placing the matter on the list for hearing at the statutory public meeting of the Planning Committee. [15] Some details of the application had to be revised, and these were completed by November. In accordance with standard the practice for notifying the public of the proposal, a sign was placed on the property to advertise the rezoning application. Mr. Hughes testified that Mr. Gyles personally asked that there be an additional sign placed on Derry Road, a more visible location. This was a very unusual request in Mr. Hughes' experience, but Mr. Benisasia agreed to do it. Mr. Benisasia testified that Mr. Gyles suggested to him that this proved he had power to control the process. [16] Mr. Hughes met with Mr. Benisasia more than once, but the application seemed to have stalled during the November election period and Christmas holidays. NOVEMBER MEETING [17] According to Mr. Benisasia, sometime prior to the municipal elections held in November 2000, Mr. Gyles contacted Mr. Benisasia and suggested that they meet, for a discussion about the rezoning application. At Mr. Gyles' suggestion, the meeting was set to take place at a Country Style donut shop at Tomken and Eglinton. Mr. Benisasia attended along with his associate, Jody Johal, in case notes were required. During this meeting there was a general conversational discussion about Mr. Benisasia's background and about his funeral home plans. According to Mr. Benisasia, Mr. Gyles indicated that he was now prepared to support the rezoning application, if he was re-elected. Mr. Gyles denies that he ever expressed such support. [18] By contrast, Mr. Gyles testified that it was Mr. Benisasia who made the next contact. He said that during the municipal election campaign, Mr. Benisasia brought $5,000 in cash to Mr. Gyles' election office. Mr. Gyles said he informed Mr. Benisasia that he couldn't accept cash, and told him to make a proper donation. A third meeting occurred when Mr. Benisasia brought $10,000 cash to - 5 - the office. Mr. Gyles said his position on rezoning had not changed, and Mr. Benisasia left annoyed. [19] Mr. Gyles testified that when Mr. Benisasia brought in the first $5,000, Mr. Gyles thought he was either naive or "up to no good". He reflected upon it further when Mr. Benisasia brought in the $10,000 cash to his office. He believed he was dealing with an unscrupulous person, but that he needed to see through the process. He considered going to authorities, but said he was waiting for an appropriate time. [20] Mr. Mansfield, who was acting as Mr. Gyles' campaign manager, also testified that Mr. Benisasia came to the campaign office a couple of times, wanting to discuss the zoning change. Mr. Mansfield asked him, as he asked most people, if he was interested in contributing to the campaign, but Mr. Benisasia did not produce any money in his presence. [21] Mr. Gyles testified that it was Mr. Benisasia who called to initiate the next meeting. He said that the parties agreed to meet at the donut shop because Mr. Benisasia didn't want to travel to City Hall. Mr. Benisasia and Ms. Johal attended. They discussed the election, as well as the rezoning and the issue of posting signs in more visible locations. Mr. Gyles said that he reiterated that he didn't think rezoning was appropriate. POST ELECTION MEETING [22] After the election, Mr. Benisasia and Mr.: Gyles had a telephone conversation. The evidence was contradictory concerning who called whom: Mr. Benisasia testified that it was Mr. Gyles who suggested that they meet to discuss the rezoning application, and that Mr. Gyles also suggested that Mr. Benisasia not bring Ms. Johal to the meeting this time. Mr. Gyles testified that it was Mr. Benisasia who called him. [23] In any event, they subsequently met outside the same donut shop, but Mr. Gyles suggested that Mr. Benisasia go for a drive with him. They ended up some distance away, at another donut shop, Macville Donuts, where Mr. Gyles was known by the owner. Mr. Benisasia testified that he was frisked by Mr. Gyles before going into the donut shop: Mr. Gyles denied this. Mr. Benisasia gave evidence that during this conversation, Mr. Gyles indicated that he was prepared to support the rezoning application, but he passed over a paper to Mr. Benisasia suggesting that he wanted $100,000 in exchange for his support. Mr. Benisasia scratched out the number and wrote the number $50,000. That - 6 - amount was agreed upon. During this discussion, Mr. Gyles advised Mr. Benisasia not to call the police or tell anyone about their agreement because, according to Mr. Gyles, he had influence with the local police. He also indicated that he could cause problems for Mr. Benisasia. The arrangement was to be that Mr. Benisasia would pay half of the money by the time of the first community meeting, and the other half after the application was approved by the passage of the amending law. [24] Mr. Gyles denied that he ever demanded money from Mr. Benisasia. He did not recall, but did not deny, that they went in his car to the other coffee shop on this occasion. He emphatically denied that he frisked Mr. Benisasia, and said that it was Mr. Benisasia who offered him $50,000 to support the application. BENISASIA'S CONTACT WITH POLICE: JANUARY 10, 2001 [25] Despite Mr. Gyles' warnings against discussing their arrangement, Mr. Benisasia testified that he talked to a number of people about whether he should pay the bribe or whether he should go to the police. It is clear from the evidence of the real estate agent, Mr. Janic, that he did discuss this with him and that Mr. Janic immediately advised Mr. Benisasia to go to the police. He assisted Mr. Benisasia by calling the O.P.P. The O.P.P. were contacted instead of local authorities because of Mr. Benisasia's concerns about Mr. Gyles' alleged contacts in the local police. The O.P.P. referred the matter to the Peel Police and Mr. Benisasia attended at the police station on January 10, 2001. [26] In cross-examination Mr. Benisasia agreed that he had denied to some people that he had been offered a bribe. As he indicated in his statement to the police, after Mr. Gyles made the demand he asked various people, including an architect named "Kenny", whether Councillors would be able to hold up his project and whether they would take money. When asked by "Kenny" whether he had been asked for money, he lied and said "no". His explanation that he did not know "Kenny" well enough to trust him is entirely reasonable. [27] Over the next two weeks, the police investigated the matter. They obtained a wiretap authorization on January 26. In the interim, they requested that Mr. Benisasia not have any contact with Mr. Gyles. Although Mr. Gyles called Mr. Benisasia's office, Mr. Benisasia declined to speak to him. Mr. Benisasia testified that Mr. Gyles dropped by unannounced to the Legion location where Mr. Benisasia was doing some work, and had a brief discussion with him. Mr. Gyles denies that this meeting - 7 - [28] On January 26, after the wiretap authorization was granted, Mr. Benisasia called Mr. Gyles and arranged another meeting at the Country Style donut shop. This conversation was recorded. Mr. Benisasia indicated that he "had something...something small" for Mr. Gyles. Mr. Gyles said, "you don't want to drink coffee in bits and pieces", and "you deal with the issue and then be done with if, but agreed to meet. It is clear that Mr. Gyles was reluctant to accept only part of the first payment. Prior to the meeting, Mr. Benisasia was provided with $10,000 in large bills by the police. In accordance with standard procedure the police photocopied the money, to record the serial numbers for tracing purposes. They placed the money in the trunk of Mr. Benisasia's car just prior to the meeting. JANUARY 26,2001 MEETING AND INTERCEPTION [29] The meeting between Mr. Gyles and Mr. Benisasia was recorded on videotape by members of the Peel Police Mobile Surveillance Service. Mr. Benisasia also wore a device to record the conversation. It is clear from the videotape surveillance and audio record of the conversation, and undisputed by Mr. Gyles, that when Mr. Gyles got to the donut shop, he motioned for Mr. Benisasia to follow him to another location. They drove in separate vehicles to a Second Cup coffee shop, where they got out of their vehicles, went in, and had a conversation concerning the rezoning. [30] It is apparent from the audio recording of the conversation that Mr. Gyles was extremely reluctant to speak openly about the exchange" of money. When Mr. Benisasia raised the issue Mr. Gyles said, "No, .... we don't like to get into that...". Later when Mr. Benisasia said he wanted to give him some of the first payment, Mr. Gyles stuttered and just said, "No, no, no...". When Mr. Benisasia asked him if he "wants the thing or What", he says, "Yeah, we sit in my car for a while". Mr. Gyles asked him to, "Put the apples here" and "Bring the apples here" motioning to his center console where he had an apple. Mr. Benisasia got out of Mr. Gyles' car and they went in their separate vehicles to a third location at another strip mall. Mr. Benisasia got back into Mr. Gyles' vehicle. It is clear from the [31] After the meeting, Mr. Gyles drove home by an indirect route. The police testified that Mr. Gyles was driving in what they termed a "surveillance conscious" manner. Mr. Gyles stopped for an unusually long period of time at a stop sign, causing one vehicle behind him to pull out and turn past him. He - 8 - drove at a slow rate of speed on a major road, slower than other traffic. He pulled over to the curb on two occasions, for no apparent reason. Such driving makes it difficult for surveillance team members not to be discovered, and it makes continued surveillance difficult. [32] When he got to his subdivision, he drove past his own home, then returned a few minutes later. He sat in his car with the lights off for a minute, then went inside, and was observed watching the street from various windows, with the lights in the home still off. [33] Mr. Gyles endeavoured to explain these unusual actions. He testified that he often stops when driving through his ward, in order to observe various new buildings or construction sites. He denied that he 'was "surveillance conscious". However, a concern about surveillance is the only logical conclusion to be drawn from this evidence. [34] It is quite clear that Mr. Gyles received the "marked" money on this occasion. He did not deny this fact when he testified. Nor could there be any denial, since a portion of the money was subsequently found in Mr. Gyles' home following his arrest. FEBRUARY 1 COMMUNITY MEETING [35] A community meeting was arranged by the Planning Department under Mr. Gyles' direction at the Legion on the first of February, to deal with any concerns that members of the community might have with respect to the zoning application. Mr. Gyles played an active role in this meeting and alleviated many of the concerns of members of the community, by answering their questions about the proposed facilities. CONTACT FEBRUARY 2 TO 16 [36] It is clear from the ongoing telephone calls recorded by the police that contact between Mr. Benisasia and Mr. Gyles continued between the time of the community meeting and leading up to the City Council Planning and Development Committee Meeting on February 19th. [37] There are a number of recorded phone calls in which Mr. Benisasia and Mr. Gyles endeavoured to set up other meetings. When Mr. Benisasia refers to "the money", Mr. Gyles tells him "when you talk to me you cannot mention those sort of things". In later conversations, Mr. Gyles refers to whether or not Mr. - 9 - Benisasia has all of the "chickens" put into one "nest". Mr. Benisasia understood this to be a reference to whether or not he had all of the money arranged: "chickens " is a slang term for money. Mr. Gyles testified that it was Mr. Benisasia who wanted to use these code words, but agreed that he knew they were referring to money. FEBRUARY 16 MEETING [38] Prior to the meeting set for February 16, the police provided Mr. Benisasia with an additional $5,000 in "marked" money. Although $15,000 was due, apparently that was all that the police could muster. On this occasion Mr. Gyles and Mr. Benisasia met at yet another donut shop and discussed the project. The meeting was recorded. When Mr. Benisasia advised Mr. Gyles that he didn't have all the money, but had $5,000 of the amount still owing on the first payment, Mr. Gyles said, "Don't call out the dollar" and "not to talk about this". He declined to accept the money because he wanted it all in one "package". When Mr. Benisasia asked him if he could speed anything up, Mr. Gyles offered to "see what we can do". They arranged to meet after the Planning Committee meeting. FEBRUARY 19 PLANNING MEETING [39] On February 19, in the afternoon, Mr. Benisasia's application was considered by the Planning Committee. As the videotape of the meeting demonstrates, no one from the public attended to object to or comment on the proposal. Mr. Gyles gave a brief commentary in apparent support of the proposal, indicating that questions raised at the community meeting had been answered. He also moved the "notwithstanding protocol", eliminating the requirement for another Planning Committee meeting. I accept that the "notwithstanding protocol" is routinely invoked for uncontroversial applications where there are no outstanding concerns. The procedure was not unusual. [40] Mr. Gyles left council chambers immediately after this matter was dealt with, to meet with Mr. Benisasia and his supporters. They discussed their success. As the recorded conversation indicates, Mr. Gyles noted with respect to his having moved the notwithstanding protocol: "people kill for that". Mr. Benisasia drew Mr. Gyles aside and a meeting was arranged for later that day. - 10 - FEBRUARY 19 PAYOFF MEETING [41] Prior to the final meeting with Mr. Gyles, the police provided Mr. Benisasia with the balance of the first payment, $15,000. This was placed in two envelopes, one of $10,000 and one of $5,000. Again, the serial numbers were photocopied in advance. The money was placed in the trunk of Mr. Benisasia's vehicle. Surveillance was arranged and Mr. Benisasia was fitted with a recording device. [42] Mr. Benisasia was parked at the Country Style donut shop. When Mr. Gyles arrived, he motioned for Mr. Benisasia to follow. They took a somewhat circuitous route to Macville Donuts. Again, surveillance officers followed and observed the two talking inside the donut shop. During the recorded conversation, Mr. Gyles made rough notes on an envelope, in explanation of the further steps required in the application and in conjunction with their discussion about payment. [43] When Mr. Benisasia indicated that he had the $15,000 in the car, so the $25,000 is "finished", Mr. Gyles said, "Let me finish" and then said, "That covers that... that's it. Look at the paper." In the context of all of the evidence, including the comparison of the written notes with the audiotape, as well as the direct evidence of Mr. Benisasia, I find that this was an indication by Mr. Gyles that the first $25,000 would cover the process up to a point before the final approval. [44] Mr. Benisasia then said, "When I give the other 25 chickens", Mr. Gyles said, '"We talked about that already, leave it..." and "Don't talk about it". Mr. Gyles concluded with, "We deal with this, this is the end of the story... there's now and then May, end of story". Mr. Benisasia replied, "Okay, I just want to get clear with you, that's all". [45] After further discussion, the two left the coffee shop and drove separately to the Hershey Centre Sports Complex parking lot. The two vehicles met in the middle of the large, empty parking lot. Mr. Benisasia got out of his vehicle, got the money from the trunk and got into Mr. Gyles' vehicle. He handed him both envelopes and asked him if he, wanted to check it, saying, "That's five and this is ten." Mr. Gyles just said, "Okay" and then Mr. Benisasia left. The vehicles drove off in separate directions. Mr. Gyles was located by the police a couple of blocks away a short time after, parked in another parking lot. - 11 - ARREST AND SEARCH [46] Mr. Gyles was approached by surveillance officers and placed under arrest. The two packets of money were found in separate envelopes ripped open at his feet, displaying the money inside. The envelope with notes on it was found in Mr. Gyles' jacket pocket. [47] A search warrant executed later at Mr. Gyles' house enabled the police to locate $1,200 of the marked money given to him on January 26. The $1,200 was intermingled with other bills totaling $3,400. Mr. Gyles testified that although he had intended to turn over all of the $10,000 given to him on January 16 to the police, he had inadvertently placed some of it on top of an armoire in his home, along with other money. The remaining $8,800, he said', was hidden for safekeeping in the cantina in his basement. He said the police did not discover it in the search, and he was so upset about being arrested that he subsequently used the money to pay a lawyer. It has not been recovered. OVERVIEW [48] The second set of allegations involving Mr. Gyles relate to an earlier incident that came to the attention of the authorities in late 2001. As materials filed at trial indicate, there was extensive publicity at the time of Mr. Gyles' arrest in February 2001, and later in the fall when the case was being dealt with in the courts. The publicity concerning the Gyles matter came Mr. Dhaliwal's attention, and he eventually decided to go to the police. PRIOR EVENTS [49] Mr. Dhaliwal owned a truck driving school. In 1999 the premises he had been renting for this school became unavailable, and he proposed to purchase a property to provide a permanent home for his business. Mr. Dhaliwal was aware that the property he found was zoned for agricultural use, and would therefore require rezoning. Mr. Dhaliwal went to City Hall to find out how it could be rezoned. At City Hall, he was directed to the Planning Department and from there to Mr. Gyles' office. He met with Mr. Gyles that day. Based on what he felt was an assurance from Mr. Gyles that the rezoning would not be a problem, he went ahead with the purchase of the property in the summer of 1999. - 12 - INITIAL CONTACTS WITH MR. GYLES [50] It was apparent to the city Planning Department that Mr. Dhaliwal was having difficulty preparing his rezoning plan. For example, he submitted hand drawn site plans rather than architectural drawings. He was again directed to speak to Mr. Gyles in the fall of 1999. Mr. Gyles recommended that he retain a consultant by the name of Mr. Mansfield. [51] Mr. Dhaliwal testified that the consultant's card for Mr. Mansfield was the only card he was given by Mr. Gyles, suggesting, perhaps, that there was a more politically inappropriate relationship between Mr. Gyles and Mr. Mansfield. Mr. Gyles testified that he always kept a number of consultant's cards on his credenza, and handed out two or three of these to Mr. Dhaliwal, without making any specific recommendation. [52] There was a curious piece of evidence concerning the involvement of one Mr. Willis in the retainer of Mr. Mansfield by Mr. Dhaliwal. Mr. Willis is a political opponent of Mr. Gyles, who has run unsuccessfully against him in previous elections. Mr. Willis did not testify. [53] Mr. Mansfield acknowledged in his evidence that he had paid a "finder's fee" of $2,000 to Mr. Willis, although Mr. Willis was unconnected to the transaction. Mr. Mansfield was asked by Mr. Willis to pay the fee and although Mr. Willis had not helped him to find this client, he nonetheless paid the requested amount. This evidence caused me to carefully scrutinize the evidence of Mr. Mansfield, but the hint of some type of conspiracy between Mr. Mansfield and Mr. Gyles was insubstantial and I have been careful to make no adverse findings against Mr. Gyles on this tangential aspect of the facts. In any event, Mr. Dhaliwal knew nothing about this finder's fee claimed by Mr. Willis from Mr. Mansfield. [54] The work did not progress to Mr. Dhaliwal's satisfaction. Although Mr. Dhaliwal had meetings with Mr. Mansfield, and also with Mr. Gyles, he felt that Mr. Gyles was providing all of the advice. He ultimately fired Mr. Mansfield and retained another consultant. MEETING RE $25,000 FEE [55] Mr. Gyles and Mr. Dhaliwal arranged to meet at a coffee shop in January of 2000. At the meeting, Mr. Gyles indicated that he would help get the rezoning done but that his fee would be $25,000. Mr. Dhaliwal testified that he was -13 - "shocked" at the suggestion. Mr. Dhaliwal did not think that this was the way business was done in Canada, but he was from another country and was familiar with the bribery system in other parts of the world. After some negotiation he agreed to pay Mr. Gyles $20,000. It was arranged that payment would be made in two installments: $10,000 was to be paid prior to the rezoning and $10,000 after it was completed. MEETING OF JANUARY 17, 2000 [56] Mr. Dhaliwal withdrew $5,000 from his bank account in five one-thousand dollar bills on January 17th , 2000. It is clear from banking records that this amount was withdrawn in this manner. Mr. Dhaliwal then met with Mr. Gyles and offered him the $5,000. He tape-recorded the conversation, because he wanted to have proof that he had paid. On this occasion, Mr. Gyles did not accept the money. [57] The taped conversation makes it quite clear that they did meet at a coffee shop as Mr. Dhaliwal testified. It is clear that Mr. Gyles was concerned about how long it was taking Mr. Dhaliwal and Mr. Mansfield to get the site plans. There was also a discussion about the by-law infractions incurred by Mr. Dhaliwal. After getting a take-out coffee, Mr. Gyles offered to drop off Mr. Dhaliwal. At this stage Mr. Dhaliwal indicated, "I have to give you your money". Mr. Gyles then said, "Oh my money, ah, you're all right". However when Mr. Dhaliwal said, "I didn't get the hundred percent", Mr. Gyles says, "No, no, I don't - um - we'll - um". Mr. Gyles tells him to "Keep the number and call him". Mr. Dhaliwal urges him to "take half, take half”, but Mr. Gyles tells him to give him a call. They arrange to meet the next Saturday to "just clear it up". FEBRUARY 4, 2000 MEETING [58] Mr. Dhaliwal said he spent the first $5,000 on other things, and then obtained a loan for $10,000, which he withdrew in one-thousand dollar bills on February 4th . Bank records confirm that this amount was withdrawn in this manner. Shortly after, he had a meeting with Mr. Gyles. Again, he taped this conversation. They met, got coffee, drove for some distance and Mr. Dhaliwal counted out the money, one through ten. Although Mr. Dhaliwal said Mr. Gyles frisked him, Mr. Gyles did not discover the tape recorder. The recording of this conversation shows that Mr. Dhaliwal and Mr. Gyles met and drove around in Mr. Gyles' Jeep. Mr. Gyles indicated that Mr., Mansfield had said that everything was under control. The two apparently stopped, wait for some traffic to pass, and - 14 - then Mr. Dhaliwal counts out the money. Mr. Gyles indicated that he didn't want to count it but then proceeded to insist that Mr. Dhaliwal "open the front of his coat" so that he could frisk him. SUBSEQUENT EVENTS AND DISCLOSURE TO POLICE [59] The rezoning application did not go smoothly. Mr. Dhaliwal learned of the arrest of Mr. Gyles in 2001 and became concerned about meeting with him again. In October of 2001 Mr. Dhaliwal still did not have the rezoning completed and contacted Mr. Willis to assist him. He disclosed to Mr. Willis what had occurred with Mr. Gyles and played the tape for him. Mr. Dhaliwal testified that Mr. Willis took him to City Hall to make a complaint and from there Mr. Dhaliwal was directed to the Peel Police. DEFENCE EVIDENCE RE DHALIWAL INCIDENT [60] Mr. Gyles acknowledged that he met with Mr. Dhaliwal in 1999 and agreed to support his proposal. He had many meetings in his office with Mr. Dhaliwal. After Mr. Dhaliwal hired Mr. Mansfield, Mr. Gyles and Mr. Mansfield and Mr. Dhaliwal met frequently. [61] However, Mr. Gyles denied that he ever met Mr. Dhaliwal at a donut shop. He testified that he never demanded money from Mr. Dhaliwal, never accepted any money from Mr. Dhaliwal and that Mr. Dhaliwal never offered him money. He denied that it was his voice on Mr. Dhaliwal's tape recordings, or at least indicated that if it was his voice, it was a "cut and paste job", and that it had been intentionally manipulated in a misleading way. [62] Mr. Dhaliwal testified that for his own protection, he scanned the first five one-thousand dollar bills into his computer. He forgot to scan the second set of ten one-thousand dollar bills. [63] During the course of the trial, an officer from the Technical Crimes Investigation Unit analyzed Mr. Dhaliwal's computer. The officer is trained to collect technological evidence without changing its nature. To do this, he images the hard drive of a computer. He was able to locate the image of the five one-thousand dollar bills on the hard drive of Mr. Dhaliwal's computer. He testified - 15 - that the image had been created on Mr. Dhaliwal's computer by a scanner. A copy of the image was printed. [64] The officer also reviewed the computer recording of the date and time of the creation of the document. He found that the material had been scanned in, according to this computer's clock, at 11:47 a.m. on January 15, 2000. The document had also been either moved or backed-up on August 4, 2000 as indicated by the so-called creation date. While the officer acknowledged that computer dates can easily be changed and that there is no definitive way to ascertain whether the documents had been backdated, he noted that the dates on this computer appeared to be accurate. There were no noticeable breaks in the computer's timeline. [65] The officer also acknowledged that it was odd that the "creation" date of the file was later than the "last written" date, because there was only one partition in this particular computer so it couldn't have been moved from another part of that computer on that date. In summary, the computer scan confirmed that Mr. Dhaliwal had had access to five one-thousand dollar bills, apparently at the time indicated by the bank records, but there was an unexplained anomaly in the computer dating of the file. [66] Some evidence was also called by the Crown indicating that Mr. Gyles enjoys gambling at Casino Niagara. Mr. Gyles acknowledged that he frequents Casino Niagara and sometimes uses what is called a "Player Advantage Card". Records maintained by Casino Niagara indicate that Mr. Gyles or someone using his card went to the casino quite often. He frequently won money, including $34,000 of profit at the casino in the year 2000. However, it is not disputed that the Player Advantage Card can be used by others, and Mr. Gyles indicated that he often lent his card to a friend so that points could be accumulated more quickly. I found the evidence at this point to be inconclusive, and I draw no adverse inference from it. [67] The Casino Niagara Manager of Risk Management also testified that one-thousand dollar bills are often used at the casino. They were more readily available in the year 2000, but have now been taken out of circulation. The casino does not track thousand dollar bills unless there is a large cash transaction, that is one in excess of $10,000, as these are is required by legislation to be tracked. There was no evidence that Mr. Gyles used thousand dollar bills at the casino; Mr. Gyles thought he might have done so but was not certain. - 16 - RULING re SIMILAR FACT EVIDENCE [68] The Crown sought to have, the evidence on each of the allegations against Mr. Gyles admitted to support the prosecution of the other allegation. The Crown argues that the evidence arising from both complaints demonstrates on each separate charge the willingness of Mr. Gyles to demand and/or accept bribes in relation to his role as Municipal Councillor. [69] In general, evidence that has not been given in relation to the charge under consideration, which does no more than attack the character of the accused, is inadmissible. Such evidence cannot be used to argue that an accused person has the propensity or disposition to do the type of acts charged. In this case evidence that is admissible on one set of charge's cannot be cross-applied to the other set of charges unless it is cross-admissible as similar fact evidence. [70] The test for admissibility of similar fact evidence has been most recently analyzed in the decision in the Supreme Court of Canada in Regina v. Handy (2002), 164 C.C.C. (3d) 481, [2002] S.C.J. No. 57. The Court clarifies that while evidence of propensity is generally inadmissible, it may be admitted on exception if it is shown to have more probative value than prejudicial effect in relation to the issue in question. [71] Identifying the "issue in question" is of central importance in the analysis. The issue in question in this case relates to the question of Mr. Gyles' alleged amenability to bribery. The specific propensity to demand bribes from persons seeking a zoning by-law amendment has not been challenged as an insufficiently specific issue on which to admit similar fact evidence. In this case the Crown asserts that the probative value of the evidence is derived from the unlikelihood that two individuals who do not know one another would report very similar allegations concerning the same politician. [72] In assessing the probative value of the similar fact evidence the Court must consider the degree of similarity or dissimilarity of the facts alleged to be similar, the opportunity for collusion and the strength of the evidence. Prejudice can be assessed in the context of the countervailing factors, such as the inflammatory nature of the similar acts. While the similar fact evidence may be relevant, it may also distract the trier of fact from the proper focus, and cause undue time delays at trial. The Court in Handy indicated that these factors will almost always outweigh probative value. However, the Court also decided that similar fact evidence does not have to meet the test of conclusiveness in order to be admissible. - 17 - SIMILARITIES AND DISSIMILARITIES [73] The principal measure of probative value is the nexus between the factual events. The more focused and specific to the circumstances of the charge the " similar facts" become, the greater their probative value. While it has sometimes in the past been suggested that on issues such as identification, a higher degree of similarity, such as propensity that is highly distinctive or unique as to constitute a "signature" must be met, the Supreme Court of Canada in Handy clarified this issue by endorsing the reasoning of the Ontario Court of Appeal in R. v. Carpenter (1982), 142 D. L. R. (3d) 237 at p. 244: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence. [74] The Court does not have to determine whether the events are more or less similar compared to other issues, but rather whether the specific "drivers of cogency" on the issue at hand are sufficiently strong to find a nexus between the factual events. The Court must identify the links between the similar fact evidence and the offence being charged to determine whether the similar fact evidence can be appropriately relied upon. Such factors include proximity in time, similarity in detail, number of occurrences, circumstances surrounding or relating to the similar act, distinctive features, intervening events, and other factors which might tend to support or rebut the underlying unity of the similar act and the allegations on trial. In measuring the degree of similarity, the Court must consider the context and not simply tally up the number of similarities or dissimilarities. The question is whether or not the similarities demonstrate an improbability of coincidence. [75] In a minute analysis of the evidence, Mr. Gold argued that there were limited connecting factors between the two sets of evidence and many dissimilarities. He argued that the allegations were just "the general plot that one would expect", and that there were many dissimilarities. For example, there were differences in the support said to have been offered to each of the rezoning applicants by Mr. Gyles at the first meeting. In the Dhaliwal case it is said that he gave full support to Mr. Dhaliwal, whereas in the case of Mr. Benisasia there was no encouragement and outright lack of support. In the Dhaliwal case there was said to have been the assistance of referring him to a consultant and providing him with sample site plans, but there was nothing of this nature in the Benisasia case. Different coffee shop franchises and locations were involved. The amounts of money demanded were also dissimilar as was the quantum and timing of delivery. There was a difference with respect to whether or not Mr. Gyles was - 18 - alleged to have made the process more difficult: whereas Mr. Benisasia's story referenced two such instances, there is no counterpart in Mr. Dhaliwal's evidence. There are differences with respect to car travel, and the timing of the "frisking". There is a distinct difference with respect to Mr. Gyles' degree of reluctance to talk openly or use code words and with respect to the presence of surveillance-conscious behaviour. [76] The Crown relied upon a cluster of similar features involved in each set of allegations: (i) Both men purchased properties for intended uses that required rezoning of the. land. Both were, therefore, in a difficult position. (ii) Each contacted Mr. Gyles for help. ( In original (ii) is used twice ) (ii) In each case Mr. Gyles asked the complainant to pay him for his help. (iii) In each case the price was negotiated and Mr. Gyles agreed to reduce his initial request. (iv) In both cases, at Mr. Gyles' request, there were meetings at donut/coffee shops. (v) In both cases the men were directed to get into Mr. Gyles' car and then driven through unfamiliar areas. (vi) In both cases the payments were to be in two installments, half before and half after the rezoning. (vii) In both cases the men were at some stage frisked by Mr. Gyles. (viii) In both cases Mr. Gyles refused a partial payment. [77] Overall, it is quite clear that the similarities in the way in which the bribe is alleged to have arisen and the arrangements for meetings and payments showed a distinct pattern of behaviour, supportive of the contention that it is unlikely that two individuals would independently report similar allegations. - 19 - COLLUSION [78] In assessing the probative value of the evidence, the Court must consider not only the degree of similarity or dissimilarity of the facts alleged to be similar, but also the opportunity for collusion by either complainant. Obviously in this case, the assessment of collusion is critical. [79] In Handy, supra, the Court noted that, "If collusion is present, it destroys the foundation on which admissibility is sought..." namely that the events independently described are too similar to be credibly explained by coincidence. The test for assessing collusion at the admissibility stage was reviewed in some detail in Handy, because it had been the subject of differing opinions in prior cases, including R. v B. (C.R.) and R. v. B. (L.) as well as R. v. McDonald (2000), 148 C.C.C. (3d) 273 (Ont. C.A.). While collusion is one factor in assessing probative value, it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends, the improbability of coincidence. [80] The Supreme Court concluded that, Where ... there is some evidence of actual collusion, or at least "an air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth. [81] In the companion case to Handy, Regina v. Shearing 2002, SCC 58, (2001) 165 C.C.C. (3d) 225, the Court also noted that: The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the "coincidence" of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility. In Handy, we held that where there is an air of reality to the allegation of collusion, the trial judge, in assessing the admissibility of the similar fact evidence, must be satisfied on a balance of probabilities that the evidence is not the product of concoction. This is inherent in deciding whether, as a matter of law, the evidence has sufficient probative value to overcome the prejudice. If this threshold test is passed, the jury must determine for itself what weight, if any, to assign to the similar fact evidence. [82] The onus is clearly on the Crown to show, on a balance of probabilities, that there was no collusion. It was argued that because of the timing of the Dhaliwal allegations, Mr. Dhaliwal could have read press reports concerning Mr. - 20 - Gyles' arrest on the Benisasia allegations and that could have led him to present a story that sounded similar. As well, there is evidence that Mr. Willis brought the Dhaliwal allegations to the attention of the police. Evidence was given through Mr. Gyles that Mr. Willis is a long-standing political rival of Mr. Gyles. He would have been in a position to provide Mr. Dhaliwal with details concerning the Benisasia allegations and that would account for their similarities. The Defence also argues that the Dhaliwal tapes were not shown to have been made when Mr. Dhaliwal suggested, in February 2000, but that they could have been made after Mr. Gyles' arrest. The Defence alleges that the voice is not that of Mr. Gyles or in the alternative, if it is Mr. Gyles, it has been "cut and pasted" such that Mr. Gyles did not actually say those things. In this context a close examination of the issue of collusion is clearly required. [83] There is at least an "air of reality" to the suggestion of collusion. First, it is suggested in the evidence of Mr. Mansfield that Mr. Willis was aware of the involvement of Mr. Dhaliwal with Mr. Gyles long before the arrest of Mr. Gyles, if Mr. Mansfield is to be believed when he says that Mr. Willis demanded a finder's fee during his retainer by Mr. Dhaliwal. This tends to suggest that any collusion would have preceded Mr. Gyles' arrest. Still, the evidence is sketchy on this point. [84] A detailed review of the newspaper clippings published at the time of Mr. Gyles arrest shows that some details such as the fact of frisking were made public. It is at least possible that Mr. Willis or others could have provided. further details, to assist Mr. Dhaliwal in fabricating the tapes. [85] The shadow of Mr. Willis' involvement lurks in the background in other ways: he was said to be involved in bringing to the Crown's attention other charges against Mr. Gyles, which have been severed from this Indictment on agreement. [86] It is therefore important to look to extrinsic evidence to determine whether the voice on Mr. Dhaliwal's tapes is Mr. Gyles' voice and whether there is evidence that the tapes were made at the time indicated by Mr. Dhaliwal. [87] Mr. Dhaliwal didn't keep the tape recorder. He said his child was playing with it and it broke so he threw it out. He claimed that he had bought the tape recorder at Canadian Tire and paid cash for it. There is no physical evidence that would tend to confirm when the tapes were made. [88] Significantly, Mr. Dhaliwal's evidence about when the tapes were made is supported by Mr. Dhaliwal's bank records from January 17 and February 4, 2000, - 21 - which show that he did take out $5,000 on January 17, 2000 in five one-thousand dollar bills. He put the name "Cliff Gyle" in the memo portion. This supports the discussion on the first tape that Mr. Dhaliwal told Mr. Gyles that he did not have a hundred percent of the first installment. Another bank record shows that there was a withdrawal of $10,000 on February 4, 2000 in the form of ten one-thousand dollar bills. Mr. Dhaliwal's second tape includes the important passage where he counts out ten one-thousand dollar bills and gives them to Mr. Gyles. [89] Finally, and most tellingly, there is a comment on the tape by Mr. Gyles referring to a fax from Mr. Mansfield to Mr. Gyles. That fax was later found in Mr. Gyles' office file. Mr. Dhaliwal was not copied. It stretches credence to contend that long after the fact Mr. Dhaliwal would have discovered from Mr. Gyles' file or elsewhere the date on which this document was sent to Mr. Gyles, and have worked it into a faked conversation now attributed to Mr. Gyles at about the same time. [90] The other crucial issue bearing directly on the issue of collusion is whether or not the voice on the two tapes presented by Mr. Dhaliwal to the police is that of Mr. Gyles. [91] Mr. Dhaliwal testified unreservedly that the voice is that of Mr. Gyles: he was with Mr. Gyles when the tapes were surreptitiously made. However, there is no confirmation that he played the tapes for others prior to Mr. Gyles' arrest on the other allegations. [92] Mr. Gyles testified in-chief that the voice was not his voice. In cross-examination, when a portion of his evidence in-chief was played back and compared to a portion of the tape, he acknowledged that the voice sounded like his. He did not agree that he had a distinctive speech habit of raising his voice almost to a falsetto at some point, as the comparison quite dramatically demonstrated. However, under further cross-examination he did acknowledge that the voice could possibly be his but denied that he had ever met Mr. Dhaliwal in a coffee shop, and said that if it was his voice it must have been a "cut and paste job". In the end Mr. Gyles was forced to change his testimony from outright denial that it was his voice to stating that he didn't think it was his, but if it was, it must have been a doctored tape. [93] A Court must be extremely careful in assessing voice identification evidence. While evidence of voice identification is admissible by persons who are not qualified as experts, the weight to be attached to the evidence depends on factors such as whether there is direct or circumstantial evidence confirming the voice identification, whether the events following the conversations are - 22 - consistent with the identification of the speaker, whether there are peculiarities or distinctiveness or patterns of speech distinctly associated with the person identified, whether the speaker discloses particular facts known only to him and whether the context and timing of the conversation is consistent with the identification. See Regina v. Williams (1995), 98 C.C.C. (3d) 160 (Ont. C.A.), leave to appeal to Supreme Court of Canada refused, (1999) C.C.C. (3d) vi. It is a question for the trier of fact to determine the identity of a voice on wire taps: See R. v. Parsons (1977), C.C.C. (2d) 497 (Ont. C.A.), adopted by the Supreme Court of Canada in R. v. Charette, [1980] 1 S.C.R. 785. [94] Here, the direct voice identification is made by Mr. Dhaliwal who was with him at the time, but whose evidence is being tested against the collusion issue. It remains for me, at this stage as gate-keeper on the admissibility function, to determine if the voice is that of Mr. Gyles. [95] In this case there are a number of factors, apart from the direct evidence of Mr. Dhaliwal, that taken together satisfy me that the voice on the tapes is that of Mr. Gyles. At one point, as noted above, there is a telling reference by Gyles to the fax he had received from Mr. Mansfield, which was sent without Mr. Dhaliwal's knowledge. This fact confirms the identity of the speaker as well as the time that the tape was made. There are clear peculiarities or patterns of speech to Mr. Gyles' voice, including the near falsetto previously referred to, and also including a habit of sometimes repeating words or stuttering. It was also suggested that the Dhaliwal tapes were too clear to have been created by using a tape machine hidden inside Mr. Dhaliwal's jacket. It is true that at times the tapes are somewhat clearer than the tapes produced by Mr. Benisasia using equipment provided by the police following a lawful wiretap authorization. Nonetheless, there are noises suggestive of the recorder being hidden inside a jacket. [96] For these reasons I am satisfied that the voice on the tapes is that of Mr. Gyles, and that the tapes were made at the times indicated by Mr. Dhaliwal. [97] In the context of the admissibility of similar fact evidence, the test is whether I am satisfied on a balance of probabilities that there has been no collusion. The Crown has more than satisfied that test, and accordingly I do not find that collusion existed to undermine the probative value of this evidence. - 23 - STRENGTH OF THE EVIDENCE [98] As is the case with the aspect of collusion, the Supreme Court of Canada in Handy has held that in determining admissibility of similar fact evidence, the trial judge should also take into consideration the strength of the evidence. The trial judge must be of the view that it meets the threshold of being reasonably capable of belief. In this case, quite obviously if the tapes do record conversations between Mr. Gyles and Mr. Dhaliwal, the tapes strongly contradict Mr. Gyles' testimony. PREJUDICE [99] The potential for prejudice in the use of similar fact evidence must always be kept in mind. In this case, the nature of the evidence does not have any inherently inflammatory aspect. The potential for prejudice is also perhaps limited by the fact that both matters were heard together before a judge without a jury. None of the evidence dealt with matters not before the Court in a charge. In this case there is neither "moral prejudice", which sometimes arises from the inflammatory or discreditable nature of similar fact evidence, nor "reasoning prejudice", which is the risk of juror distraction or logistical problems that sometimes arise where similar facts are not the subject of other charges but are denied by the accused. PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT [100] I am satisfied that the probative value of this evidence is potentially high, and that it outweighs any possible prejudicial effect it might have in the context of this case. The evidence, therefore, is legally admissible on the issue of proving the specific tendency of the accused to demand bribes. LIMITED USE OF SIMILAR FACT EVIDENCE [101] Again, the limited use that can be made of this evidence must be borne in mind, as the potential for another type of something akin to "reasoning prejudice" exists in this case, where the issue of collusion is so central to the determination of the validity of the Dhaliwal evidence. It is proposed by the Crown that the similar fact evidence be used primarily to buttress the evidence on the Dhaliwal charges, which are weaker. The fundamental issue on those charges is whether the tape is valid rather than the product of collusion or tainting. In my view the very evidence that is the suggested focus of the - 24 - collusion, or reason underlying the alleged collusion, cannot be turned around and used to buttress a lack of collusion. [102] I am therefore mindful of the fact that the evidence, while admissible, is entitled to no weight on the collusion issue. In this case, involving as it does the direct and highly inculpatory evidence of recorded conversations of the accused, the similar fact evidence is not really necessary once the crown has independently proved, beyond a reasonable doubt at the trial stage, that there was no collusion. Even the Crown acknowledged in closing submissions that they did not really need the cross-application of the evidence through similar fact admissibility. It has not been necessary for me to rely on it in drawing conclusions of fact, since the evidence assessed separately yields the same results. - 25 - FINDINGS OF CREDIBILITY AND FACT A) BENISASIA INCIDENT [103] Following the Benisasia incident, Mr. Gyles was faced with the incontrovertible evidence of his arrest in open possession of the $15,000 in marked money, as well as the evidence of the taped conversations and police surveillance. At trial Mr. Gyles acknowledged that he had received money from Mr. Benisasia. However he testified that he had never supported the zoning change, and never indicated that he would support it, and had always intended to go to the police with the money that Mr. Benisasia had given him. In fact, he testified that when stopped by the police, he was looking for the phone number of a friend of his who worked as a detective with the Peel Regional Force, and was planning to go home to find the number, as he had been unable to find it in his car. He was prevented from doing this by his arrest. He said he also planned to turn over the first $10,000 to the police, had inadvertently intermingled some of it with his own funds, and hidden the rest. He did not return the missing $8,800 because he was upset about being arrested. [104] The extrinsic evidence on these counts does not support Mr. Gyles' testimony about these events. I completely reject it. [105] The evidence of the tapes and surveillance on the Benisasia incident is almost overwhelming with respect to the proof of the salient facts. There is no support for the explanation of Mr. Gyles that he was engaged in a one person "counter-sting" operation, by accepting money from Mr. Benisasia with the intention of turning it over to the police. The tapes demonstrate that Mr. Gyles was the one who was very wary of saying anything about money. I reject his suggestion that he was trying to put Mr. Benisasia at ease. He controlled the locations where the exchanges took place and in particular, moved locations from the original meeting place by driving to other locations not known to Mr. Benisasia. He declined to take the $5,000 offered on February 16, which contradicts his testimony that he intended to gather evidence for the police. It appears that to the contrary, he wanted to minimize the number of occasions where he was exposed by having accepted money. As well, his counter-surveillance measures are inconsistent with an intention to go to the police. [106] More importantly, and the factor that makes it unreasonable to accept Mr. Gyles' evidence concerning his intentions to report Mr. Benisasia to the police is that he continued to deal with Mr. Benisasia for several months and never did report the matter. Adding to that is the fact that he took the first - 26 - payment of $10,000, and co-mingled $1,200 of it with his own money, leaving $8,800 missing. [107] The evidence was conflicting concerning who was the instigator of the agreement, and who made the first offer of money. While in a legal sense it does not matter whether Mr. Gyles demanded or accepted the bribe, the issue remains important to the assessment of credibility of both Mr. Gyles and Mr. Benisasia. It is true that Mr. Benisasia was inaccurate with respect to some dates, but, as might be expected, so was Mr. Gyles. Mr. Gyles insisted that he was always opposed to the application, but the evidence does not bear this out. It appears from the evidence that Mr. Gyles was initially opposed, and did some things to make the process more difficult. For example, he insisted that a second notice sign be put up. Standing alone, this is inconsequential. It was quite appropriate to make that requirement in this case. Taken with other evidence, though, it appears to be a demonstration of his ability to control the process. [108] The subsequent evidence completely disproves Mr. Gyles' suggestion that he continued to oppose the plan. He clearly was of assistance at the community meeting and at the Planning Committee meeting held at City Hall. The taped evidence demonstrates that he was quite openly offering support, not only for the rezoning, but also for subsidiary issues such as dealing with the conservation authorities and advising on how to get other architectural aspects approved. [109] It was also alleged that Mr. Benisasia offered Mr. Gyles election campaign contributions of $5,000 and $10,000 in cash. It is unlikely that he would do this just prior to an election not knowing who would win, even if he did come to the election office as Mr. Gyles and Mr. Mansfield said. [110] It makes no sense that Mr. Gyles would attend a meeting at the Country Style Donut shop with Mr. Benisasia if Mr. Benisasia had previously tried to give him improper campaign contributions. By contrast it made sense for Mr. Benisasia to go to the meeting because he wanted Mr. Gyles' help. The tapes overall demonstrate that Mr. Gyles was the one who was taking the active if cautious role. The frisking of Mr. Benisasia is another example of Mr. Gyles' concern about surveillance. I find that the frisking did occur. When one listens to the tape of February 19 in conjunction with the writings on the envelope found in Mr. Gyles' jacket when he was arrested, it is clear that Mr. Gyles is not merely explaining the process, but is explaining the stage at which he expects final payment. It is Mr. Gyles, not Mr. Benisasia, who repeatedly cautions against speaking about money. - 27 - [111] The fact that it was Mr. Benisasia who called the police rather than Mr. Gyles also strongly points to Mr. Gyles as being the one demanding the bribe. As the Crown pointed out, if Mr. Benisasia was not being truthful about that, he was running the risk that Mr. Gyles would have reported the matter to the police first. Further, if Mr. Benisasia had offered the bribe first, it is illogical that Mr. Gyles would have continued to have multiple phone calls and meetings without contacting the authorities. Mr. Gyles' explanation that he was somehow separating out his responsibility to facilitate the process from the individual who was committing a criminal offence makes no logical sense. In the context of the taped conversations and the evidence of the meetings as they unfolded, I am entirely satisfied that it was Mr. Gyles who demanded the money as Mr. Benisasia had indicated. Mr. Gyles was not merely passively accepting money with an innocent intent. He did not report it because he wanted the money. [112] Mr. Gyles' evidence that he continued to oppose Mr. Benisasia's application is important, particularly with respect to the issues on municipal corruption, since it is required that there be a quid pro quo for the bribe. In this case the quid pro quo was to be Mr. Gyles' vote in favour of the zoning application. The Crown listed a series of references from the phone calls and taped conversations that more than adequately demonstrated that Mr. Gyles was supporting the rezoning application, and indicating his support to Mr. Benisasia. I need not review all of the interceptions that so adequately confirm this. The City Hall meeting of the Planning Committee adequately demonstrates his lack of opposition, and his conversations with Mr. Benisasia firmly show that he intended to steer the process through to successful completion. I agree with the Crown that it is "clear as day" that Mr. Gyles supported this project. [113] I have also weighed a number of matters that the Defence suggested impaired the credibility of Mr. Benisasia. First, he was convicted and subsequently pardoned for an offence involving false documentation and a marriage for immigration purposes. On a number of matters he was sloppy in presenting his evidence, but these were on minor issues such as how long he has been in business. He was at times confused about the dates of various meetings or the order of certain events such as whether Mr. Sookar was fired before or after the closing. [114] Mr. Benisasia's evidence on the dates of various meetings was at times inconsistent. He was cross-examined at length about his inability to recall exact dates, and concerning inconsistencies between his evidence at trial and previous statements he had given to the police, or to the court at the preliminary inquiry. For example, on some occasions he indicated that he thought the first meeting - 28 - with Mr. Gyles was in October 2000, after he had filed the rezoning application. His final evidence at trial was that he first met Mr. Gyles in July of 2000. As well, he was quite confused about the timing of his firing of Mr. Sookar, and whether Mr. Sookar was still working with him when the second notice sign had to be arranged. [115] While the Defence argued that these inconsistencies undermined Mr. Benisasia's evidence, I noted that other witnesses were almost equally uncertain. For example, Mr. Gyles was himself unclear about the date of some meetings or the order of events. In the end I did not find any of these inconsistencies to be significant. [116] Of greater importance was the contradictory evidence' about whether or not Mr. Benisasia went to the campaign office and offered cash as a campaign contribution, since his presence there was confirmed by Mr. Mansfield. I do not find this inconsistent with the overall evidence of Mr. Benisasia, given the number of meetings and phone calls that took place over a short time period. [117] As the Defence noted, on occasion Mr. Benisasia's recollections were that Mr. Gyles had played a more active role than the tapes indicated. For example, the transcript of the meeting at City Hall shows that it was Mr. Benisasia not Mr. Gyles who tried to arrange the pay-off meeting. The transcript of the February 19 meeting shows that it was Mr. Benisasia, not Mr. Gyles, who was nervous about people passing by them in the coffee shop. While these details may justify caution with respect to accepting all of the details of Benisasia's testimony, they in no way impair his credibility with respect to the essential issues that are recorded on the tape. [118] In summary, even without considering the similar fact evidence, I am entirely satisfied concerning the factual elements of the Benisasia charges. B) DHALIWAL EVIDENCE [119] Mr. Dhaliwal is something less than a model citizen. He acknowledged that he is operating his truck -driving school without a proper licence. He has dumped fill at night time on wetland parts of his property in order to increase the useable area. He knows this contravenes environmental regulations. He has had prior involvement with the police, but denied this under oath at the preliminary inquiry. On his own evidence, he admits that he paid bribes to Mr. Gyles to get the property rezoned. He did not go to the police about his allegations until long after Mr. Gyles was arrested, when he apparently thought - 29 - he wasn't going to get the help he had paid for. His credibility warrants close examination. [120] Mr. Dhaliwal testified in an unembarrassed and straightforward manner. He made no effort to hide these serious flaws in the way he conducts business. He offered to obtain additional bank records or documents to confirm his answers to questions in cross-examination. [121] Because Mr. Dhaliwal's evidence concerning the making of the tapes has been confirmed by extrinsic evidence, his story is believable. The banking records support his testimony that he withdrew thousand dollar bills during time periods when he was dealing with Mr. Gyles. There is computer evidence that he scanned one set of these into his computer as he said. [122] Most importantly, there is the dovetailing of the details in the tapes with the evidence confirmed by both Mr. Gyles and Mr. Mansfield, for example concerning the by-law officer, “Wayne", the need for Mr. Dhaliwal to get the site plan done, and the faxed letter from Mr. Mansfield. [123] With respect to the Dhaliwal allegations, Mr. Gyles at first flatly denied that he had the conversations that Mr. Dhaliwal recorded. For the reasons previously indicated concerning the issue of collusion and voice identification on these tapes, I reject Mr. Gyles' denial. The voice is his. He is clearly recorded accepting money. [124] In cross-examination even Mr. Gyles acknowledged that the details discussed in the tapes were discussed with Mr. Dhaliwal, and said that if indeed it was his voice on the tapes, it was a "cut and paste" job. He finally said "he had reservations" about it being his voice, but admitted he might have said some of the things, possibly by telephone. [125] With respect to whether this was a "cut and paste" fabrication from telephone calls, the recordings do not in general support this contention. There are traffic noises, references by Mr. Gyles to having coffee, references to Mr. Gyles' vehicle and references to dropping off Mr. Dhaliwal with several references to the money interwoven into the conversation. I do not accept that the tapes were based on telephone calls or that Mr. Gyles never went to a coffee shop or on the drives with Mr. Dhaliwal. [126] It should be noted that the second tape bears very close scrutiny at the passage where Mr. Dhaliwal is counting out the money, from one to ten, in thousands. Immediately after there is the "frisking incident". Of concern is the - 30 - fact that just before this passage, (at 24:53 of the computer disc recording) there is a loud scraping noise on the tape. This may be the sound of an envelope being torn open. (This is marked "interruption in audio" on the taped transcript.) Mr. Gyles' voice is very low at this point, and difficult to identify. [127] On careful scrutiny of the tape, and when the evidence is considered in its totality, I am satisfied that there was a demand from Mr. Gyles to Mr. Dhaliwal and a payment to him. Individual items of evidence need not be proved beyond a reasonable doubt and the evidence overall on these charges does satisfy me beyond a reasonable doubt of the essential facts on the Dhaliwal charges. The similar fact evidence simply confirms these findings. - 31 - [128] With respect to each incident, Mr. Gyles is charged with two separate offences: breach of trust under s.122 of the Criminal Code and municipal corruption under s.123 of the Criminal Code. The relevant portions of these offences as charged in this case are as follows: 122. Every official who, in connection with the duties of his office, commits ... a breach of trust is guilty of an indictable offence. 123. (1) Every one who... [129] Counts 1 and 3 of the Indictment are as follows: Linton Cliff Gyles stands charged: 1. That he, during a six month period, last, past and ending on or about 3. That he, during a five month period, last, past and ending on or about [130] The essential elements of the charges of breach of trust that must be proved by the Crown are: (a) that the accused is an official, (b) that the impugned act was committed in connection with the duties of his office, and (c) that the act constitute a breach of trust. - 32 - [131] In this case there is no doubt that Mr. Gyles was an official, as he was elected a Mississauga City Councillor. As well, there is no doubt that the impugned acts of demanding or accepting a sum of money were committed in the general context of the execution of the duties of his office. The live issue on these charges relates to the scope of breach of trust. It has been held that to constitute a breach of trust, it must be shown that the accused acted or failed to do an act contrary to the duty imposed on him by statute, regulation, his contract of employment or directive in connection with his office and that the act done gave him a personal benefit directly or indirectly. There need not be a real prejudice or loss to the public or state. Nor does the crime of breach of trust necessarily involve the idea of corruption. The advantage must flow from the very status and office of the official. See Regina v. Perreault, (1992), 75 C.C.C. (3d) 425 (Que. C.A) [132] The case law clearly establishes that there need not be actual deprivation or a real prejudice or loss to the public. See Regina v. Perreault, supra, at page 442 and Regina v. Leblanc, [1979] C.A. 417 at 439, aff'd without reasons [1982] 1 S.C.R. 344. The Crown called this a crime of conduct rather than result, and the cases support this interpretation. See Regina v. Greenwood (1991), 67 C.C.C. (3d) 448 (Ont.C.A.). The wrongful conduct or actus reus is the demand for or acceptance of money in the context of the duties of office. The trust that is breached is the trust placed by the public in the elected official, not the "trust" between the payor and payee of the bribe. This answers the Defence contention that the use of police money somehow diminishes the actus reus of the offence. [133] It is incumbent upon the Crown to demonstrate that all essential elements of each charge have been proved beyond a reasonable doubt. The focus of Defence counsel's closing argument, apart from the initial factual assertion that the evidence of Mr. Gyles should at least leave a reasonable doubt about his guilt, was that the Crown had not proved the charges as particularized. [134] With respect to Count 1, it was ingeniously but not persuasively argued that the actus reus of the offence had not been made out because there was no bona fide transaction between. Mr. Gyles and Mr. Benisasia. There could be no breach of trust, it was argued, because the police had provided Mr. Benisasia with the money to pay Mr. Gyles. It was argued that taking police monies cannot constitute the actus reus of this offence, and that this was at most an attempt. The defence relied by analogy on the decision of the Supreme Court of Canada in R. v. Lemieux, [1967] S.C.R. 492. In that case the court held that the actus reus might not be established where the police entrapped a person who had no prior - 33 - intention to commit the offence. In giving money to Mr. Benisasia, the police only facilitated the detection of an offence in progress. The case is similar to Rex v. Chandler, [1913] 1 K.B.125, referred to in Lemieux, where the court held a conviction was proper in circumstances where the police were put into a position to detect the crime in progress. Consequently it does not affect the actus reus of the offence that the money demanded and accepted by Mr. Gyles was provided to Mr. Benisasia by the police, since the arrangement had already been made. [135] As well, it is irrelevant whether or not the resultant actions of Mr. Gyles were altered by the receipt of the money. It is clear from the decision in Regina v. Gentile, [1993] O.J. No. 992 (Ont. Ct. Prov. Div.) that the Crown is not required to prove that any official actions were altered as a result of the benefit. One can well understand the principle underlying Parliaments decision not to make proof of a change in action an essential element of the offence. If officials could take money for doing what they were elected to do, it would, as the Crown put it, "reward the subtle". It was stated in Regina v. Vandenbussche (1979), 50 C.C.C. 15 (Prov. Ct. Crim. Div.) the sections are sufficiently broad ... to ensnare the municipal official who, though performing the duties of his office or his official acts in a perfectly appropriate manner, does so in express return for considerations, benefits or rewards, accepted by the municipal official and offered by a person seeking the performance of that duty or official act. [136] Counts 2 and 4 in the Indictment allege municipal, corruption arising from the same sets of facts: Linton Cliff Gyles further stands charged: 2. That he, during a six month period, last, past and ending on or about 4. That he, during a five month period, last, past and ending on or about - 34 - [137] The offence of municipal corruption is rarely prosecuted. In order to prove a violation of s.123 (1), as set out in this case the Crown must establish beyond a reasonable doubt that Mr. Gyles is; 1) a municipal official 2) that he demanded or accepted a benefit as consideration 3) and that he accepted this consideration for voting or for procuring the adoption of a municipal motion. [138] As already noted, there is no question that Mr. Gyles is a municipal official as specified in the charges, a Mississauga City Councillor. I have found as facts that he both demanded and accepted money from each of Mr. Benisasia and Mr. Dhaliwal. It remains to be proven by the Crown that he demanded or accepted these benefits as consideration for voting in favour of a rezoning application in the case of Mr. Benisasia, and as consideration for aiding in procuring the adoption of a motion, namely, the rezoning application of Mr. Dhaliwal. [139] Section 123 does not require proof of an overtly corrupt action by a municipal official. Like s.122, the offence of municipal corruption only requires a municipal official to accept money in the course of his or her lawful duties as a public official. In R. v. Leblanc (supra), the Supreme Court of Canada affirmed the Quebec Court of Appeal's finding that preferential treatment exercised by a municipal official is sufficient on its own to constitute an offence under this section. [140] Given the findings of fact I have made regarding Mr. Gyles' actions, including the finding that he offered to support each of the rezoning applications in exchange for the payment of money, I find that the offence of municipal corruption has been proved. I attach no significance to the different wording in the two charges: in this case they amount to the same thing. [141] In a case such as this, where there is conflicting evidence, the law requires the Court to assess the matter in three stages. First, if the evidence of an accused person is accepted, there must obviously be an acquittal. I do not accept Mr. Gyles' evidence in this case. - 35 - (No [142] in original ) [143] Secondly, even if the accused's evidence is rejected, if that evidence leaves the court with a reasonable doubt about an essential aspect of the charge, the court would still be required to acquit. The law places a very high onus on the Crown to prove the case beyond a reasonable doubt. Again, considering the evidence as a whole, the evidence given by Mr. Gyles and the other evidence supporting his testimony does not leave me with a reasonable doubt. [144] The third stage of the assessment requires that the Court be satisfied beyond a reasonable doubt on the evidence supporting the Crown's case, even if the Defence evidence does not itself leave a reasonable doubt. Again, this ensures that the high test set out for proof of a criminal case be met by evidence that is accepted. Even if an accused person is not believed, there must still be cogent evidence satisfying the court beyond a reasonable doubt. For the reasons set out above, I am independently satisfied , beyond a reasonable doubt, by the evidence called by the Crown in support of the Benisasia charges and the Dhaliwal charges, each considered separately on each of the offences in the Indictment. That such similar offences occurred on two completely separate occasions only strengthens the evidence, and sadly affirms the adage that “power corrupts". [145] There will be a finding of guilt registered on each of the four counts in the Indictment. ( Unsigned copies were handed out ) Released: June 25th 2003 [COMMENTS BY DON B. - ] |
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