COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hromek, 2016 ONCA 109

DATE: 20160205

DOCKET: C57778

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jana Hromek

Appellant

Robert M. Isles, for the appellant

David Friesen, for the respondent

Heard: February 1, 2016

On appeal from the conviction entered on May 10, 2013 and the sentence imposed on September 25, 2013 by Justice Alexander Sosna of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals her convictions of fraud and uttering after a trial before a judge sitting without a jury. She also seeks leave to appeal sentence.

[2] On the appeal from conviction, the appellant does not advance any ground of appeal that asserts any error of law on the part of the trial judge, or for that matter, any error of mixed fact and law. Rather, the appellant’s complaint is with the findings of fact made by the trial judge.

[3] The evidence before the trial judge about the relevant transactions was conflicting. It was for the trial judge to determine and to say whom he believed and to what extent, if at all, he found their evidence reliable. The trial judge reviewed the salient features of the evidence at some length. He made his findings of fact based on that evidence and drew reasonable inferences from it. He explained his findings of fact, including why he believed the witnesses called by the Crown and rejected the appellant’s testimony and that of her husband and son.

[4] The findings of fact made by the trial judge are entitled to deference in this court. They do not reveal any misapprehension of evidence or any palpable and overriding error. The trial judge properly instructed himself on the essential elements of the offences charged and the burden and standard of proof. His conclusions are firmly grounded in the evidence adduced at trial and untainted by legal error.

[5] The appeal from conviction is dismissed.

[6] As to sentence, the appellant has served the carceral portion of the sentence imposed at trial. In his factum, counsel seeks to have the term of probation imposed by the trial judge deleted. He advances no reasons in support of the claim.

[7] We see no reason to delete the probation order, to vary any of its optional conditions or to reduce its term. We also note that the appellant did not apply to the sentencing judge under s. 732.2(3) of the Criminal Code for the relief she now seeks. While we cannot say that the failure to do so disentitles an appellant, as a matter of law, to the same relief on an appeal from sentence in this court, the failure to apply under s. 732.2(3) is a factor this court will consider on the appeal from sentence.

[8] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“Eileen E. Gillese J.A.”

“David Watt J.A.”

“M. Tulloch J.A.”