Court of Appeal for Ontario

Date: 2018-05-07 Docket: C64076 Judges: LaForme, Watt and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Emiliana Piccinini Appellant

Counsel

Carolyne Kerr, for the appellant Molly Flanagan, for the respondent

Heard: May 3, 2018

On appeal from the conviction entered on April 26, 2017 and the sentence imposed on July 31, 2017 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Emiliana Piccinini was convicted of one count of fraud over $5,000. A charge of theft over $5,000 was stayed pursuant to the principles established in R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to one year in custody. She appeals both her conviction and sentence. At the conclusion of the hearing, we dismissed the appeals with reasons to follow. We now provide those reasons.

[2] The appellant worked for a civil litigation lawyer, essentially as a bookkeeper. Prior to joining the lawyer's practice in 2005, the appellant had worked as a paralegal. During the course of her employment, the appellant was to be paid bi-weekly.

[3] On February 25, 2014, the lawyer terminated the appellant's employment after his accountant advised him that the appellant had received more paycheques than she was entitled to. These overpayments had occurred in 2011, 2012 and 2013.

[4] The appellant contended that these additional paycheques were, in fact, payments due to her by the lawyer for files that she had brought into his practice from the time that she worked as a paralegal. She contended that the lawyer had agreed to pay her 10% of monies that he earned from these files. The lawyer denied that there was any such arrangement.

[5] The trial proceeded over two days. The trial judge gave lengthy and detailed reasons for finding the appellant guilty of the offence. The trial judge found that the appellant's evidence was internally inconsistent, unsupported by any independent evidence, unreliable, and defied common sense – she rejected it completely. On the other hand, she found the lawyer's evidence internally consistent, supported by common sense and by bank records, and was unshaken on cross-examination.

The Conviction Appeal

[6] The appellant contends that the trial judge erred in her application of the test set out in R. v. W. (D.), [1991] 1 S.C.R. 742. In particular, the appellant says that the trial judge improperly compared the evidence of the lawyer to the appellant. The appellant also contends that the trial judge reversed the onus of proof by requiring the appellant to explain contradictions in the evidence.

[7] We do not see any merit in these contentions. The trial judge's reasons make it clear that she looked at the whole of the evidence and tested it against the standard of proof of beyond a reasonable doubt. There was a direct contradiction between what the lawyer said the arrangements were for the appellant's employment and what the appellant said that they were. It was inevitable, in those circumstances, that the trial judge would have to contrast the evidence of the two witnesses.

[8] The trial judge did not require that the appellant produce evidence. Rather, she found there was no independent evidence confirming the appellant's evidence. A trial judge who points out that evidence, that might have assisted one side or the other, is lacking is not reversing the onus of proof. She is simply acknowledging the fact that there is an absence of confirmatory evidence, one way or the other. The trial judge was correct in her approach. The onus of proof was not shifted from the Crown to the appellant as argued.

[9] Further, it is not necessary for a trial judge to recount the test set out in R. v. W. (D.) as if it were some form of magical incantation. This was an experienced trial judge who would be well familiar with the principles enunciated in that case. Indeed, she referred to the case specifically. A fair reading of her reasons does not reveal any failure to appreciate the approach to be taken.

[10] We also do not accept that there were any misapprehensions of the evidence by the trial judge. Nothing alleged by the appellant rises to the level of any misapprehension that relates to material parts of the evidence, or plays an essential part of the reasoning process, or amounts to a miscarriage of justice: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93. The fact that the appellant would have had the trial judge draw inferences from the evidence different from the ones that she did draw, does not constitute a "misapprehension" of the evidence.

[11] The trial judge's reasons when read as a whole demonstrate that she correctly and carefully reviewed the entirety of the evidence. She was not required – as the appellant seems to suggest – to carefully review each piece of evidence and explain its application: see R. v. O.M., 2014 ONCA 503, at para. 28.

The Sentence Appeal

[12] Finally, the appellant contends that the sentence of one year in custody was harsh and unfair. She contends that a conditional sentence ought to have been imposed.

[13] Sentencing is a profoundly subjective process. An appellate court should only interfere where the sentence is clearly unreasonable (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46) or demonstrably unfit (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44). The trial judge again gave detailed reasons for her conclusion regarding sentence. In particular, she pointed out that this offence involved a breach of trust, that almost $50,000 was taken; that the offence occurred over more than three years, and that the appellant was a licenced paralegal. The trial judge also noted that the appellant had expressed limited remorse for her actions.

[14] In terms of mitigating circumstances, the trial judge specifically considered the appellant's brother's and father's health. She concluded they did not amount to exceptional circumstances as she was entitled to. The trial judge's consideration of the amount of money left in the law firm's account is not an error justifying appellate intervention. The fresh evidence, admitted on consent, regarding the brother's further health issues, does not materially alter the analysis.

[15] In the end result, there is no principled basis by which this court could interfere with the sentence imposed.

Conclusion

[16] The appeal from conviction is dismissed. While leave to appeal sentence is granted, that appeal is also dismissed.

"H.S. LaForme J.A." "David Watt J.A." "I.V.B. Nordheimer J.A."