Ewaryst Prokofiew v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)




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Charter of Rights and Freedoms - Criminal law – Charge to jury – Right to silence – Consideration of s. 4(6) of the Canada Evidence Act - Whether Court of Appeal erred in concluding that the trial judge was not required to specifically caution the jury on the improper use of the Applicant’s decision not to testify at trial – Charter of Rights and Freedoms ss. 7, 11(c) and 11(d).

The Applicant and his co-accused, Peter Solty, were charged with one count of conspiracy to defraud the Government of Canada and one count of defrauding the Government of Canada of about $3.25 million. The Crown alleged that both accused participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate harmonized Sales Tax (“HST”) that was then not remitted to the federal government as required. The fraudulent nature of the scheme was never challenged. The involvement of the applicant and Mr. Solty in the scheme was also conceded. The question for the jury was whether either or both accused were aware of the fraudulent nature of the scheme. The applicant did not testify. The applicant was convicted and sentenced and his appeals were dismissed.

Lower Court Rulings

January 8, 2005
Ontario Superior Court of Justice

Conviction; fraud over $5,000 and conspiracy to commit fraud
April 11, 2005
Ontario Superior Court of Justice

Sentence: 3 years
June 10, 2010
Court of Appeal for Ontario

C42992, 2010 ONCA 423
Appeals dismissed