Lawyer wants fraud charges tossed out
Judge to decide June 25 after lawyer claims Huskies co-founders are innocent
Who’s the victim in the Peterborough Huskies fraud investigation?
It’s not the players, parents or community; it’s David and Cathie Tuck, claims defence lawyer Brad Allison.
“I came here to establish she is entirely innocent,” Cathie’s lawyer said Wednesday in Ontario Court of Justice.
Allison, who represented both founders of the organization until the start of the trial, filed an application for a directed verdict following assistant Crown attorney Sam Humphrey’s final witnesses in the case.
David, who represented himself for the remainder of the trial, joined the application but didn’t make any submissions.
Seeking a directed verdict after the close of the Crown’s case affords Allison two kicks at the can. If Justice Jennifer Broderick denies the application, he can still choose to call a defence, and try to prove that Humphrey didn’t prove the allegations beyond a reasonable doubt.
For the application to be successful and the case be thrown out, Allison has to prove Humphrey provided no evidence upon which a judge alone or properly instructed jury could convict the Tucks of fraud over $5,000.
The information on the charges filed by the prosecution, allege the couple used donated money to the special needs organization for personal use. The Crown’s case heavily relies on financial transactions between the accused’s personal accounts and a Huskies business account.
“There’s nothing (no evidence) indicating they were donated funds,” Allison argued in his application submission.
“We have no idea where one given dollar went over three years.”
In response to the defence’s application, Humphrey pulled up a spreadsheet highlighting several occasions where money was taken out of the Huskies account and on or around the same day put into personal accounts of the Tucks.
The judge pointed out that those records didn’t show evidence that it was donated money being moved. Broderick also agreed with Allison that there didn’t seem to be any evidence of anyone suffering from deprivation.
“That is an issue plaguing me quite frankly,” she said, noting that lead investigator Det. Const. Keith Calderwood admitted during his testimony that he never spoke to any witnesses that said they didn’t get what they paid for when giving money to the Tucks.
Allison pointed out by law the Crown has to prove the intention or knowledge of deceit, falsehood or dishonesty. Humphrey agreed he didn’t call anyone witnesses to prove this but argued the Tucks were dishonest because they used donated money to pay for personal bills.
“Why not make out (cheques) to Dave and Cathie Tuck,” he asked, making note that records show money coming from Giant Tiger, Darling Insurance and Canadian Tire Jump Start.
“They are giving money for the hockey team. Not for use by the Tucks for personal expenses.”
Allison also submitted that there was confusion of what the Peterborough Huskies entity was. Was it a business, incorporated, non-for-profit or charity organization, he wondered.
“I never heard any evidence of that,” he explained.
Humphrey said both Tucks admitted it was a non-for-profit organization during their police statements.
However, Allison said it was a registered business account. He said it is prudent for business men and women to commingle money between personal and business accounts for many reasons, including tax implications.
“It is far from criminal,” he explained. He said the money was actually theirs to spend how they wanted because the Crown didn’t prove it was a non-for-profit organization or that they promised the donated money to be spent on specific things like ice-time for the hockey team.
“One cannot defraud themselves,” he said.
Broderick will give her ruling on the application June 25.
David and Catherine Tuck of the Peterborough Huskies leave Peterborough Ontario Court of Justice on Nov. 3, 2016 .