Court of Appeal for Ontario

Citation: R. v. Marciano, 2025 ONCA 174

Date: 2025-03-05

Docket: COA-23-CR-0122

Before: van Rensburg and Coroza JJ.A. and O’Marra J. (ad hoc)

Between:

His Majesty the King (Respondent)

and

Daniela Marciano (Appellant)

Counsel:

Daniela Marciano, acting in person

Myles Anevich, appearing as duty counsel

Deepa Negandhi, for the respondent

Heard and released orally: March 4, 2025

On appeal from the convictions entered on October 21, 2022 and the sentence imposed on January 17, 2023 by Justice David Maylor of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of two counts each of fraud, uttering forged documents and breach of probation, in relation to the purchase of a diamond ring and matching wedding band. She received a suspended sentence and one year of probation. The appellant appeals her convictions.

[2] The hearing of this appeal was adjourned so that the appellant could file fresh evidence and so that the Crown could respond.

[3] As fresh evidence the appellant tenders an affidavit that purports to attach an online bank statement for an account at the Bank of Montreal, showing an account with an opening balance of $127,514.43 from which two cheques were processed, one in the sum of $69,495.60, and the other for $5,850. The appellant states that the bank statement shows that she believed she had sufficient funds to purchase the two items, that she did in fact have sufficient funds, and that she accordingly did not have the mens rea for the offences.

[4] The Crown filed a sworn statement from Paul Medeiros, the fraud investigator at the Bank of Montreal who testified at the appellant’s trial. The statement confirms that, at the relevant time, there was no account at the Bank with a number that corresponded with the account number shown on the purported bank statement.

[5] We do not admit the fresh evidence tendered by the appellant, as we are not persuaded that the bank statement is genuine. In any event, if the appellant had legitimately paid for the goods, that evidence would have been available and could have been tendered at her trial.

[6] On the appeal the appellant, with the assistance of duty counsel, argues that the trial judge failed to conduct a proper Villaroman analysis of the circumstantial evidence respecting the mental element of the offences. The appellant argues that her conduct was inconsistent with the knowledge and intention to pass bad cheques, and that the trial judge did not consider whether the only reasonable inference on the evidence was the appellant’s guilt.

[7] We disagree. The appellant’s trial counsel made this argument. At paragraphs 14 and 15 of his reasons the trial judge specifically alluded to the onus of proof and found that the appellant’s criminal intent had been proven beyond a reasonable doubt.

[8] The appellant makes other arguments, including that it was not proven that the cheques were fraudulent. The evidence at trial was overwhelming that the appellant purchased two rings from a jewellery store using fraudulent documents, and that she had the mens rea for the offences. The appellant did not testify at the trial, and there was no evidence to contradict the inescapable conclusion that she knew that what she was doing was fraudulent. We see no error in the trial judge’s conclusion that it was a reasonable inference from the evidence that the appellant was aware that she was committing a dishonest, deceitful act by presenting forged cheques to induce the store to provide her with the jewellery.

[9] The conviction appeal is accordingly dismissed. The sentence appeal is dismissed as abandoned.

“K. van Rensburg J.A.”

“S. Coroza J.A.”

“O’Marra J. (ad hoc)”