Court of Appeal for Ontario

Date: 2017-04-24 Docket: C60649

Panel: MacPherson, Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Nicky Fortunato Appellant

Counsel

Gregory Lafontaine, for the appellant

David Friesen, for the respondent

Heard

April 21, 2017

On Appeal

On appeal from the convictions entered on March 20, 2015 by Justice Stephen Bale of the Superior Court of Justice.

Endorsement

[1] The appellant Nicky Fortunato appeals from his convictions by Bale J. of the Superior Court of Justice for two counts of fraud over $5,000 and two counts of uttering a forged document. He received a global sentence of three years' imprisonment for these offences.

[2] During a two day period in October 2012, the appellant cashed two stolen bank drafts totalling $847,000 at two Ontario casinos. He cashed the first draft, worth $365,000, at Fallsview casino on October 5, 2012, just a few hours after the drafts had been stolen from the Bank of Montreal. He cashed the second draft, worth $482,000, at Casino Rama the next day.

[3] The appellant did not testify, relying instead on his statement to police, which was tendered as part of the Crown case. In his statements, he claimed to have received the drafts from a gambler he knew only as "Pasquale" as partial repayment of a loan. The appellant conceded at trial that the bank drafts were stolen, but claimed that he did not know this at the time he cashed them.

[4] The trial judge convicted the appellant. He first considered the doctrine of recent possession. He found that the appellant's explanation for his possession of the bank drafts was "incapable of belief" and concluded that the appellant knew that the drafts had been stolen. He also found that the appellant's statement to the police was a fabrication. In his view, it was inherently improbable that the appellant had loaned anyone close to $1 million, especially someone that he barely knew, considering his income, his assets, and his current financial situation. He determined that the police statement was offered for the purpose of concealing his involvement in the fraud and thus did not raise a reasonable doubt as to the appellant's guilt. Having rejected the veracity of the appellant's police statement and having found no other reasonable explanation for the appellant's possession of the bank drafts, the trial judge found the appellant guilty beyond a reasonable doubt on all four counts charged.

[5] The appellant contends that the trial judge made three legal errors in reaching his decision.

[6] First, the appellant submits that the trial judge erred by rejecting the appellant's defence of honest but mistaken belief as it pertained to the mens rea of the alleged offences.

[7] We do not accept this submission. In our view, the trial judge correctly stated the mental element for the offences and found that the appellant had it.

[8] Second, the appellant contends that the trial judge misapprehended the doctrine of recent possession and, therefore, misapplied it to convict him.

[9] We disagree. The trial judge correctly stated the doctrine and was entitled to find that the appellant knew that the bank drafts were stolen after rejecting the appellant's explanation.

[10] Third, the appellant asserts that the trial judge erred by relying on the appellant's exculpatory statement to the police in the absence of any independent evidence of concoction.

[11] We disagree. The trial judge specifically disavowed reliance on this category of evidence in support of his findings of guilt.

[12] The appeal is dismissed.

"J.C. MacPherson J.A."

"Janet Simmons J.A."

"David Brown J.A."