Tracy Kitch fraud case: Nova Scotia's highest court cites flaws in lower court ruling

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HALIFAX — Nova Scotia's highest court released Friday a written decision explaining why it quashed the fraud conviction of a children's hospital CEO who used her corporate credit card to allegedly pay for $47,000 in personal expenses.

Tracy Kitch, former chief executive of the IWK Health Centre, in Halifax, was sentenced to five months in jail on Aug. 10, 2022, but she was released on bail pending her appeal. The appeal was heard on March 7, and in a brief oral decision that day, the Nova Scotia Court of Appeal called for a new trial.

The court's written decision says the trial judge failed to adequately explain the reasons behind his decision to convict Kitch in February 2022. Written by Justice Carole Beaton, the decision says provincial court Judge Paul Scovil did not provide "the why" behind a ruling that asserts the Crown provided sufficient factual findings to support all of the elements required to secure convictions on two charges.

"The judge’s reasons do not reveal, even obliquely, how he applied these legal requirements to the facts of the case," the latest decision says.

"Although the judge reviewed the factual circumstances in his reasons, he did not explain how they supported his ultimate conclusion the Crown had met its burden .... It is not possible to discern from the judge's reasons whether the law, which he both cited and is presumed to know, was properly applied."

The Crown has yet to decide if a new trial should be held.

When Kitch was appointed as the hospital's CEO in 2014, she was provided a corporate credit card, and acknowledged in writing that it was not for personal use, the decision says. Early in her term, hospital staff found it difficult to track her business and personal expenses. And in October 2016, her expense records were posted on a public website, as required by the provincial government.

"Eventually, media attention came to bear on the appellant’s expense history," the ruling says. "By September 2017, the scrutiny was so intense that (Kitch), having by then reimbursed the IWK thousands of dollars for personal expenses, resigned." She was charged in October 2018.

In its decision, the three-member appeal panel said the trial judge's decision may have been based on Kitch's procedural or ethical breaches, which do not "translate directly to a conviction for fraud or fraud by a public officer." But the reasoning is not clear, the court said.

"The judge did not have to provide exhaustive reasons that touched on each and every aspect of the evidence," the ruling says. "However, we do not know how the judge reached his determination of … the guilty act in relation to the offence of fraud."

This report by The Canadian Press was first published May 5, 2023.

Michael MacDonald, The Canadian Press