Former IWK Health Centre CEO Tracy Kitch is appealing her conviction for fraud over $5,000, arguing the trial judge failed to explain how using a corporate credit card for personal expenses is dishonest behaviour.
Kitch used flight passes for personal travel to and from Ontario and used her corporate credit card as head of the children’s hospital to pay for taxis, Netflix, iTunes, data overages, and more, as first reported by Michael Gorman at CBC in 2017. The personal expenses totalled about $47,000. Tim Bousquet has the full details in the Halifax Examiner here.
Nova Scotia provincial court Judge Paul Scovil convicted Kitch of fraud in February 2022.
“The evidence before the court clearly showed that Ms. Kitch used corporate funds for personal expenses, placing IWK funds in potential peril,” Scovil wrote in his decision.
But in a notice filed in Nova Scotia Court of Appeal on Tuesday, high-profile Toronto defence lawyer Brian Greenspan, along with colleague Michelle Biddulph, argues the evidence wasn’t so clear.
Specifically, Greenspan and Biddulph argue Scovil: “failed to explain how the use of a corporate credit card for personal expenses, in the circumstances of this case, was conduct which reasonable people would consider to be dishonest;” “made no factual findings as to whether the Appellant was subjectively aware that she was committing a dishonest act which could result in deprivation or a risk of economic harm to others;” “failed to make any findings on the value of the fraud, including whether the amount of expenses which he considered were not legitimate business expenses exceeded $5,000;” and “did not make any finding as to whether the Appellant acted with the intention to use her public office for a purpose other than the public good.”
Scovil “failed to analyze the evidence presented at trial against the elements of the offence and reached only a bare conclusion of guilt with minimal explanation as to the basis upon which a conviction was entered,” Greenspan and Biddulph wrote.
“This is insufficient to permit this Court to understand why, in the context of the evidence as a whole, the trial judge arrived at his conclusion with respect to criminal wrongdoing as opposed to a breach of organizational policy.”
Among other reasons for appeal, the lawyers also argue Scovil’s “findings reflected a misapprehension of the evidence and a failure to consider relevant evidence,” pointing to alleged factual errors in his decision.
The lawyers are asking the court to overturn Scovil’s conviction and acquit Kitch, or grant her a new trial.
Greenspan and Biddulph make multiple references to a conviction for breach of trust. While Scovil argued, “There can be no doubt that the flagrant abuse of flight passes and credit cards are a marked departure from her position of public trust,” he granted a conditional stay on that charge based on case law.
Kitch is due in court for sentencing for fraud on August 10.