Court File and Parties

CITATION: R. v. Malette, 2010 ONCA 809

DATE: 20101130

DOCKET: C49300

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Nicol Malette Appellant

Michael W. Lacy, for the appellant

Alex Hrybinsky, for the respondent

Heard: November 29, 2010

On appeal from the conviction entered by Justice Nadeau of the Superior Court of Justice, dated February 27, 2008 and the sentence imposed on September 3, 2008.

APPEAL BOOK ENDORSEMENT

[1] Mr. Lacy has forcefully argued that the reasons are inadequate. He contends that the trial judge failed to explain why he disbelieved the appellant and failed to identify the evidence that was confirmatory of the "Vetrovec" witnesses.

[2] We agree that parts of the reasons could have been more detailed. However, in relation to the "shareholder loans" aspect of fraud, which on the uncontested evidence, the company was obligated to repay, there was really only one issue in dispute – did the appellant know of the dire financial condition of his company at some point and yet continue to arrange or facilitate the loans in question. The trial judge found that the appellant had the requisite knowledge. It is implicit in that finding that the trial judge preferred the detailed forensic evidence and the evidence of other witnesses over the appellant's difficult to believe denials of any knowledge of the financial condition of his companies. The appellant was the driving force behind those companies.

[3] We would not interfere with the conviction.

[4] The trial judge gave careful reasons for sentence. There is no error. Nor is the sentence manifestly unfit. The sentence appeal is dismissed.