An Ontario appeal court has rejected the appeal of Dane Clarke from his fraud conviction. The fraud involved the unauthorized redemption of approximately $20 million of customers’ mutual funds by Clarke, who worked for CIBC as a telephone agent. The court also meted out a tougher sentence.

The fraud was discovered the day following the redemptions and the bank was able to recover all of the funds.

The case was heavily circumstantial, and that the defense’s theory was that someone else committed the fraud using Clarke’s computer.

Clarke was convicted and sentenced to two years less one-day imprisonment to be served on conditions in the community (house arrest and 240 hours of community service), followed by three years probation.

On appeal, Clarke argued that the trial judge did not adequately direct the jury with respect to circumstantial evidence and misdirected the jury in her recharge. He also argued that the trial judge erred in failing to exclude certain items seized by the police from the appellant’s workstation without a warrant. The appeals court rejected these arguments.

Meanwhile, the Crown appealed Clarke’s original sentence. The Crown argued that the trial judge should have imposed a penitentiary sentence given the seriousness of the offence and that she gave insufficient weight to the objective of general deterrence.

The appeal court agreed, ruling, “In our view, the trial judge should have imposed a penitentiary sentence of at least three and one-half years.” Taking into account the time the appellant has spent serving his conditional sentence, it imposed a further one-year prison sentence.