CITATION: R. v. Galna, 2007 ONCA 182

DATE: 20070316

DOCKET: C43424

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DONALD GALNA (Appellant)

BEFORE:

FELDMAN, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Donald Galna appearing in-person

Leslie Maunder duty counsel for the appellant

Christine Bartlett-Hughes for the respondent

HEARD & RELEASED ORALLY:

February 13, 2007

On appeal from the convictions entered on April 1, 2005 and the sentence imposed on June 8, 2005 by Justice Colin D.A. McKinnon of the Superior Court of Justice.

E N D O R S E M E N T

[1] Mr. Galna was convicted of four counts of fraud and nine counts of encouraging others to act on a forged document. He received a total sentence of four years and was ordered to make restitution of $662,000 USD. He now appeals from conviction.

[2] The appellant’s position on appeal and trial is that he was entitled to use the investors’ funds in any manner that he chose. In our view, there was overwhelming evidence to support the trial judge’s findings respecting the safekeeping representations made by the appellant regarding where the investors’ money would be held and the use that would be made of the funds. The trial judge was entitled to accept, as he did, the evidence of the investors who testified, and whom he found to be credible, and the written documentation which contained such representations. Instead of holding the funds in safekeeping, the trial judge found, on the basis of thorough forensic evidence, that the funds had been used by the appellant, primarily through the company Donbanx, for operational expenses.

[3] Consequently, we see no basis for interfering with the trial judge’s findings regarding the use of the investors’ funds. In our view, the evidence overwhelmingly supports the fraud convictions.

[4] Similarly, the convictions on the counts involving forged documents were based on unimpeachable findings by the trial judge that the appellant did not have the protections in place, as represented, to guarantee the investments.

[5] We see nothing in the numerous other procedural fairness issues raised by the appellant. The trial judge explicitly recognized the challenges that the appellant faced in conducting his own defence, given that he was self-represented at trial. We begin by noting in this regard that, after sentence was passed, the appellant complimented the trial judge on his fairness and efforts to assist him.

[6] The trial judge repeatedly assisted the appellant including by identifying the relevant issues and assisting him in framing questions to elicit evidence that would be admissible and relevant. He loaned the appellant a book on trial practice and gave an overview of the trial process.

[7] We see nothing to support the allegations that the appellant was unfairly restricted in cross‑examination of witnesses or in the making of closing submissions. Where the cross‑examination was curtailed, that was done either because it was not relevant or because the witness was unable to give evidence on the point.

[8] Accordingly, we would dismiss the convictions appeal.

“K. Feldman J.A.”

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”