No mistrial for con man guilty in romantic partner scam but can argue for stay

TORONTO — A man found guilty of defrauding his romantic partner lost his bid to have the judge declare a mistrial on Friday but will get the chance to reargue his position that charges against him should be stayed.

In her ruling, Superior Court Justice Beth Allen rejected Shaun Rootenberg's mistrial arguments which alleged she showed bias against him.

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"Mere speculation is not sufficient," Allen said. "I retained an open mind in my deliberations."

Allen had previously rejected Rootenberg's application to stay the case and found him guilty in July of defrauding Victoria Smith, a divorced mother of two, out of $595,000.

Evidence during the nine-day trial that began in May was that Smith had given Rootenberg, of Thornhill, Ont., the money in September and October 2013 to invest on her behalf. Instead, Allen found, the 51-year-old had used the funds to buy himself a new BMW and pay off gambling debts, among other things.

Rootenberg's lawyer Bryan Badali had previously conceded the trial itself was fair. Nevertheless, he argued the "extreme remedy" of a mistrial was justified by earlier issues, a position prosecutor Mitchell Flagg opposed. A mistrial was an "inappropriate and disproportionate remedy" in the circumstances, the Crown said.

Allen agreed, saying impartiality goes to the heart of the judicial system and allegations of bias must go beyond mere suspicion. In addition, she said, a mistrial was a "remedy of last resort" and Rootenberg had failed to prove his case.

At the same time, the justice agreed to allow Rootenberg to reargue his application to stay the proceedings, primarily because of how he was strip-searched during his incarceration at the Toronto South Detention Centre.

"In my view, the manner in which the searches were conducted manifestly failed to adequately protect my client's privacy rights," Badali said in an email on Friday. "His rights under Section 8 of the charter were thereby violated."

That section protects against unreasonable searches.

Allen set aside three days at the end of November to hear the new stay application.

Evidence at trial was that Rootenberg, passing himself off as Shaun Rothberg, met Smith via the e-Harmony dating site in July 2013. She fell for the divorced father of two and thought they had a future together.

After a month, Smith gave him $160,000 to invest in developing an online gaming venture called Social Trivia. Soon after, she gave him $435,000 to invest in mortgages.

About 18 months into the relationship, a shocked Smith discovered her love interest was Rootenberg not Rothberg, a convicted fraudster who had spent time in prison.

In finding him guilty, Allen said it was clear Rootenberg had diverted funds for his own personal use.

Rootenberg is also a key figure in another case in which a former medical officer of health in Sault Ste. Marie, Ont., Dr. Kim Barker, claims he preyed on her vulnerability.

This report by the Canadian Press was first published on Oct. 18, 2019

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