TORONTO — A con artist who scammed the romantic partner he met online out of hundreds of thousands of dollars has asked a judge to declare a mistrial months after finding him guilty.
In his motion, Shaun Rootenberg argues Superior Court Justice Beth Allen unfairly refused to stay the proceedings over problems with pretrial disclosure and his being strip searched in prison.
Allen convicted Rootenberg, 51, of Thornhill, Ont., in July of defrauding Victoria Smith, a divorced mother of two, out of $595,000. She had given him the money in September and October 2013 to invest on her behalf. Instead, Allen ruled, he had used the funds to buy himself a new BMW and pay off gambling debts, among other things.
Rootenberg's lawyer Bryan Badali conceded the nine-day trial that began in May before Allen was itself fair. Nevertheless, he said the "extreme remedy" of a mistrial was justified by the earlier issues.
"I fundamentally disagree," prosecutor Mitchell Flagg responded during the hearing last week. "Everything about this trial was fair."
Evidence before Allen was that Rootenberg, pretending to be Shaun Rothberg, met Smith via the e-Harmony dating site in July 2013. She quickly fell for the divorced father of two. Rootenberg talked up his idea for developing an online gaming venture called Social Trivia and, after a month of dating, she handed over $160,000 as an investment.
"She believed they were in a committed monogamous relationship," Allen, who will rule on the mistrial next month, said in her judgment.
Soon after, Smith gave Rootenberg $435,000 to invest in mortgages he said would yield six per cent interest income every month. Over the ensuing 16 months, she did receive payments totalling about $36,500.
"For all the court knows," Allen said, "Mr. Rootenberg may well have used Ms. Smith's own funds to pay her the dividends."
About 18 months into the relationship, Smith discovered — much to her shock — that her love interest was a convicted fraudster who had spent time in prison and was not Shaun Rothberg but Shaun Rootenberg. Worried about her money, she testified that she tried to keep the relationship going but ultimately went to police.
Rootenberg is also a key figure in an unrelated case in which a former medical officer of health, Dr. Kim Barker, claims he preyed on her vulnerability.
At the same time Smith was dating Rootenberg and handing over cash to him, Barker was also involved with a man she knew as Shaun Rothberg, and hired him as interim chief financial officer of the Algoma Public Health Unit in Sault Ste. Marie, Ont.
Barker has spent years fighting to block the release of an embarrassing forensic report detailing her relationship with Rootenberg and his hiring. She is currently waiting to see if the Supreme Court of Canada will weigh in after a lower court ruled the report should be public.
Barker resigned in 2015 after it became public that Rootenberg had served time for multiple counts of fraud.
It had been during his incarceration at Beaver Creek penitentiary in 2011 that Rootenberg met another convicted fraudster, Myron Gottlieb, the former second-in-command to disgraced Livent Inc. impresario Garth Drabinsky. The two men, Gottlieb testified, discussed Rootenberg's plan for the social media business.
After their release, Gottlieb, president of B-G Enterprises Inc., agreed to help Rootenberg with the venture in exchange for $70,000. Gottlieb also allowed Rootenberg to deposit money ostensibly from off-shore assets into B-G's bank account and disbursed the cash as directed. In fact, the money had come from Smith.
In finding him guilty, Allen said it was clear Rootenberg had diverted funds for his own personal use and gave them to third parties for their use.
"Ms. Smith was unaware of what Mr. Rootenberg had done with her money," Allen said. "She did not know the BMW she saw him driving around in was purchased with her $435,000."