COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wirkkunen, 2015 ONCA 140

DATE: 20150303

DOCKET: C56673

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kerry Wirkkunen

Applicant/Appellant

Counsel:

Joseph Di Luca and Erin Dann, for the appellant

Amy Alyea, for the respondent

Heard and released orally: February 23, 2015

On appeal from the conviction entered on September 18, 2012 and the sentence imposed on February 26, 2013 by Justice F. Bruce Fitzpatrick of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] In this fraud prosecution the only real issue was credibility.

[2] The appellant admitted that she had cashed cheques made payable to herself over and above her own pay cheques and had electronically transferred sums of money from the company to her personal credit cards, all she says at the behest of the complainant, Walter Feletto, who wanted to get money out of his company undetected. She said that in each instance whether by cheque or electronic transfer she handed over the cash to Mr. Feletto, except for some amounts that he allowed her to keep.

[3] Walter Feletto blanketly denied that he had asked the appellant to do this and further denied that she ever handed over cash to him.

[4] As the trial judge recognized the case turned on credibility and as he noted in para. 9 of his reasons:

I turn now to my findings with respect to the central issue in this case, whether or not Ms. Wirkkunen committed a fraud or theft from Mr. Feletto and his businesses. In this case, issues of credibility are clearly paramount. I am faced with completely contrary versions of what instructions were given to Ms. Wirkkunen in the course of completing her activities as the bookkeeper for ABP and BACI.

[5] On her evidence, on occasion, the appellant would make out a cheque payable to herself. Mr. Feletto would sign the cheque and the appellant would cash the cheque and return the cash to Mr. Feletto. Mr. Feletto denied this ever happened. Howard Milhalus was called by the defence, as counsel put it in argument, "he carried no brief for the appellant". He bore a certain animus towards her. However, in his evidence, he said that on two occasions, he had witnessed the appellant present cheques for signature to him (at that time Milhalus had signing authority) and because of the amounts of the cheques $7,500 and $10,000 he questioned Mr. Feletto about them and was told by Feletto that he knew "all about it" and instructed Milhalus to sign the cheques.

[6] Further, on one of those occasions, Milhalus actually witnessed the appellant hand over the cash to Mr. Feletto and him peeling off a couple of bills and handing them back to her. Milhalus testified that Mr. Feletto had asked him to do the same thing, write cheques to himself, cash them and return the cash to Mr. Feletto. Milhalus refused to do so.

[7] The trial judge accepted Milhalus' evidence on this latter point and found him to be a credible witness. He then went on to say that

I can't determine one way or the other if Mr. Feletto asked Ms. Wirkkunen to get cash out of his business by using a cheque, but to me, having been rebuffed by Mr. Milhalus, I do not accept that Mr. Feletto would continue to ask Ms. Wirkkunen to clandestinely remove money both electronically and by cheque.

[8] There are a number of problems with this statement. The evidence of Milhalus that he had personally observed the appellant present cheques payable to herself that Feletto told him to sign and that on one occasion, he saw her hand over the proceeds to Feletto was critically important exculpatory evidence from a witness the trial judge found to be credible.

[9] This was not a strong case for the Crown. The trial judge had said he could not determine "one way or the other" if Feletto asked the appellant to get cash out of his business using cheques. Yet, nowhere in his reasons does he address this evidence. His failure to do so, in our view, on these facts constitutes a misapprehension of evidence which amounts to an error in law. The failure to address this important evidence impacts on the trial fairness and renders the verdict unsafe. On this ground alone, the appeal must succeed.

[10] In the circumstances, it is unnecessary for the court to address the other grounds of appeal raised.

[11] The appeal is allowed. The convictions quashed and a new trial is ordered.

"J. MacFarland J.A"

"M. Tulloch J.A."

"G. Pardu J.A."