R. v. Fortunato, 2015 ONSC 1845

R. v. Fortunato, 2015 ONSC 1845

COURT FILE NO. 14-050

DATE: 20150320

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NICKY FORTUNATO

Frederick Temple, for the Crown

Christopher Hanson, for the Accused

HEARD: October 16, 17, 20, 21 and 22, 2014

Bale j.

Introduction

1Nicky Fortunato is charged with two counts of fraud and two counts of uttering a forged document. The charges arise from the negotiation of two Bank of Montreal bank drafts: one at Fallsview Casino, in the amount of $365,000, and the other at Casino Rama, in the amount of $482,000.

2According to the evidence of Farhaan Bojani, a Crown witness, he stole three blank bank drafts from the BMO branch at which he was a junior assistant branch manager. He says that he stole the drafts at the instance of three individuals: one Zacharia Patel, and two others known to him only by their first names: Zach and Omar. He says also that, at the time when he stole the drafts and gave them to these individuals, he had never met the accused, nor had he ever heard the name “Nicky Fortunato”. The Crown concedes that there is no evidence of any direct dealing between Bojani and the accused.

3According to Mr. Bojani, he received a text message from Patel, on the evening of Thursday, October 4, 2012, advising him that “something would be going down the next day” and that he would need to be in an office alone, in order to receive a telephone call. Bojani (who didn’t have his own office) then texted Khatera Waziri, a bank employee who was absent, and received permission to use her office, on the pretext that he was expecting an important telephone call from Iran.

4The following day, sometime prior to noon when he was to start work, Bojani received a text message advising him to bring blank bank drafts out to the parking lot. He then grabbed three blank drafts and Ms Waziri’s business card, went out to the parking lot, and gave the drafts to Zach, who told him that he would be receiving a telephone call, in advance of which he would receive a 10 to 15 minute “heads up”.

5According to Sharon Rodger-Serra, a cashier at Fallsview Casino, she received a telephone call from Mr. Fortunato on October 5, 2012, at approximately 2:00 p.m. She told him that she was working on the draft and would call him when it had been verified.

6Because of the large amount of the draft, and because bank drafts negotiated by Mr. Fortunato in the past had been for no more than ten or twenty thousand dollars, Ms Rodger-Serra brought the draft to the attention of her shift manager, Betsy Link. Ms Link instructed her to attempt verification of the draft, and then get back to her, before negotiating it. Ms Rodger-Serra then faxed a copy to CIBC (the casino’s bank), and called the telephone number on Khatera Waziri’s business card. She left a message on Ms Khateri’s voice-mail, requesting a call back.

7Mr. Bojani testified that his “heads up” arrived by text message around 2:45 or 3:00 p.m. The text message gave him Mr. Fortunato’s name, the draft number and the amount, and instructed him to verify the draft. Bojani said that approximately ten minutes later, he received a call from the casino during which he “verified” the draft, using the particulars contained in the text message. However, it is apparent from the evidence given by Ms Rodger-Serra, and by Bryan Corriveau, that Bojani didn’t actually pick up a call from the casino, but rather, he returned the call from Ms Rodger-Serra.

8Bryan Corriveau took over as cashier shift manager at 4:00 p.m. Ms Rodger-Serra told him that she had not yet heard back from CIBC, but had spoken with Ms Waziri, who had verified the draft. Mr. Corriveau felt uncomfortable with the verification because the call had originated outside of the casino, and therefore could have come from anywhere. Mr. Corriveau then looked up, and called, the general phone number for the BMO branch upon which the draft had been drawn. He asked to speak to Khatera Waziri.

9When this call came in, Mr. Bojani was alarmed. He then prevailed upon a female bank employee, Blesilda Bagares, to impersonate Ms Waziri and confirm the particulars of the draft. Based upon this second telephone call, Mr. Corriveau was satisfied and authorized negotiation of the draft. He then personally cashed the draft for Mr. Fortunato.

10The text message received by Mr. Bojani with particulars of the first bank draft also indicated that he would be required to verify a second draft, later the same day, or the following day. Later in the day, he received a second text message advising that verification of the second draft would not occur until the following day, Saturday, October 6, 2012.

11Ryan Taylor was Mr. Fortunato’s “casino host” at Casino Rama. He testified that Mr. Fortunato called him on Friday, October 5, 2012, and told him that he had a $482,000 bank draft and would come and play at the casino, if they would negotiate it. Mr. Taylor advised Mr. Fortunato to fax the draft in to the casino, and that casino staff would then contact the bank for verification. Mr. Fortunato then faxed the draft to the casino.

12At about 4:00 p.m. on the Friday, Mr. Taylor received a text message from Mr. Fortunato, in response to which he advised him that he didn’t think that the draft could be verified until the following day. Mr. Fortunato then indicated that he would be at the casino on the Saturday, as soon as the draft could be verified.

13On Saturday morning, Mr. Bojani received a text message with Mr. Fortunato’s name, the draft number and the amount, and instructions to verify the draft. Ten or fifteen minutes later, he received a telephone call from Casino Rama during which he “verified” the draft, using the particulars contained in the text message. He said that the call had come in around 11:00 or 11:30 a.m.

14Jennifer Cronk is a cashiering supervisor at Casino Rama. She testified that she faxed a copy of the second bank draft to the BMO branch upon which it had been drawn, and then made a call to the branch. The person that she spoke to orally verified the draft and then, at her request, faxed her written verification on a form that she provided. She said that she received the written verification around 12:45 p.m., as she was getting ready to go out for lunch. The fax headers on the verification form itself suggest that she faxed it to the bank at noon, and that she received it back at 1:18 p.m.

15A written statement of Richard McMaster, a Casino Rama employee, was introduced into evidence by the Crown with the consent of the accused. According to Mr. McMaster, he was training with Jennifer Cronk on October 6, 2012 when Mr. Fortunato brought the draft into the casino. He said that Mr. Fortunato had to wait for “quite some time” for the draft to be verified, after which time the money was deposited to his casino account.

Mr. Fortunato’s statement to the police

16On October 18, 2012, the accused was questioned first, by Detective Constable Menar, and second, by Detective Constable Haninec. The interview took place at Casino Rama. A video of the interview was introduced into evidence by the Crown, with the consent of the accused. The Crown introduced the statement with the intention of relying upon it as post-offence conduct. However, the statement was also relied upon by the accused as his primary defence. During the interview, Mr. Fortunato raised two defences.

17The first defence raised by Mr. Fortunato was that the drafts could not have been stolen because they had been verified by the bank. While it may be that Mr. Fortunato thought that once the drafts had been verified they would be “good”, as is apparent from the facts of this case, fraudulent verification is no guarantee of validity.

18The second defence raised by Mr. Fortunato was that he had been given the drafts by a fellow gambler whom he knew as “Pasquale”, and whose last name he didn’t know. He said that he had known Pasquale at Fallsview Casino for “maybe three years”. He said that he had loaned Pasquale “almost a million dollars”, and that the two bank drafts were given to him in partial repayment of the loan. He said that the money was loaned to Pasquale over a period of a year and a half, and that it is common for gamblers to loan money to other gamblers whose last names they don’t know.

19In response to questions concerning how he came into possession of the bank drafts, Mr. Fortunato told the police that he had received a telephone call from Pasquale advising him that the money was ready. He then met with Pasquale in Toronto on the Friday morning, and was given the first bank draft. He said that the second draft was given to him in Toronto on the Saturday morning, at about 11:30 a.m., and that he then took a bus to Casino Rama.

20In response to questions concerning his assets and means, Mr. Fortunato told the police that he had no savings or investments, but that he was owed seventy to eighty thousand by other gamblers. His $28,000 line of credit was “maxed out” and he owed a loan shark by the name of “Al” $400,000. Mr. Fortunato told the police that he worked appraising automobile collision damage, with bi-weekly take-home pay of about $1,400. In response to D.C. Haninec’s suggestion that with such modest income, it would seem unlikely that he had a million dollars to loan, Mr. Fortunato said that his employment income was irrelevant, because he makes his money at the casino. He said that he had won the money that he had loaned to Pasquale. When asked over what period of time he had won the $900,000 that he loaned, Mr. Fortunato responded that it was over the past year and a half.

Analysis

Essential elements of the offences charged

21The essential elements of the charges of uttering false documents are:

i. that the bank drafts were forged;

ii. that Nicky Fortunato knew they were forged;

iii. that Nicky Fortunato dealt with the bank drafts; and

iv. that Nicky Fortunato represented the bank drafts to be genuine.

22The essential elements of the charges of fraud are:

i. that Nicky Fortunato deprived Bank of Montreal of something of value;

ii. that Nicky Fortunato’s deceit, falsehood or other fraudulent means caused the deprivation;

iii. that Nicky Fortunato intended to defraud Bank of Montreal; and

iv. that the value of the property exceeded $5,000.

23In the present case, the defence acknowledges that there is direct evidence of all of the essential elements of the offences charged, except the mental elements: i.e., in the case of the uttering charges, no direct evidence that Mr. Fortunato knew that the bank drafts were forged; and, in the case of the fraud charges, no direct evidence of deceit, falsehood or other fraudulent means, and no direct evidence that he intended to defraud the bank.

Positions of the Crown and the accused

24The Crown’s case is based upon circumstantial evidence — that the drafts were stolen, that the drafts were forged with Mr. Fortunato’s name as payee, that within hours of the theft, Mr. Fortunato was in contact with the casino in relation to verification of the first draft, and that the face value of the drafts was many times the value of any drafts that he had previously negotiated.

25The Crown argues that the statement given to the police by Mr. Fortunato was false, and that the circumstantial evidence given by the Crown witnesses is sufficient to prove Mr. Fortunato’s guilt beyond a reasonable doubt. As part of the argument, Crown counsel relies upon the “doctrine of recent possession”.

26The Crown also argues that the statement given by Mr. Fortunato to the police was not just false, but was a deliberate fabrication from which I may infer a consciousness of guilt.

27Defence counsel argues that the story given by Mr. Fortunato to the police is credible. He points to the fact that the accused expressed disbelief when told that the bank drafts were stolen. He says that the fact that the accused walked into the casinos in an apparently relaxed fashion suggests that he was unaware that the drafts were fraudulent. He points to the fact that the casino and bank personnel who examined the drafts could not tell that they had been forged. With respect to the doctrine of recent possession, he argues that Mr. Bojani was not a credible witness, and that his evidence as to when the drafts were stolen should not be believed. And finally, he argues that Mr. Fortunato must be acquitted, because there is a rational inference arising from the circumstantial evidence other than guilt: namely, that Mr. Fortunato was a “hapless dupe”.

28Defence counsel also argues that the circumstantial evidence relied upon by the Crown is insufficient to prove that Mr. Fortunato had knowledge of the forgery, or the intention to defraud, whether the statement given by him to the police is believed or not.

Doctrine of recent possession

29As a matter of common sense, if someone is found to be in possession of something soon after it was stolen, and either gives no explanation for having it, or offers an explanation that the trier of fact disbelieves, it is open to the trier to conclude that the person in possession of the thing either stole it, or knew that it had been stolen. In this case, Mr. Bojani says that he stole the drafts and provided them to “Zach” around noon on October 5, 2012. By 2:00 p.m. the same day, the first draft had been forged, a copy of the forged draft had been faxed to Fallsview Casino, and Mr. Fortunato was calling the casino to see whether the draft had been verified.

30Defence counsel argues that Mr. Bojani was not a credible witness, and that his evidence as to when the drafts were stolen should not be believed. In doing so, he points to a number of discrepancies in the evidence given by Bojani. For example, Bojani said that Zachariah Patel was a customer of his BMO branch, which was denied by the manager at the time, Kasturi Ghoshal; he said in-chief that he had always lived in Canada, but in cross-examination said that he had been born in Kenya and came to Canada in 2003. Defence counsel also suggests that Bojani’s involvement in the fraud was greater than he had admitted. Based upon these discrepancies, he argues that the drafts could well have been stolen at an earlier date, that they could have changed hands several times before they were forged, and that the doctrine of recent possession cannot therefore be invoked. I do not accept this argument, for the following reasons.

31While I do agree that some of Mr. Bojani’s evidence was suspect, and in particular, his evidence as to his level of involvement in the fraud, he had no motive to lie about the date that the theft took place, or the sequence of events. His evidence, in the main, accords with the evidence of the other bank and casino employees. Any delay between the theft, and the negotiation of the drafts, could well have been fatal to the success of the fraud. I also note that defence counsel did not put this theory to Bojani during cross-examination. In the circumstances of this case, defence counsel should not be heard to argue an alternate theory with respect to the timing of the theft, in the absence of such cross-examination, and without any evidence to support it.

Whether the story told by Mr. Fortunato to the police was true, or raises a reasonable doubt

32I have considered Mr. Fortunato’s statement to the police in the context of all of the evidence given at trial. Having done so, and for the following reasons, I am unable to accept his story to be true, or to find that it raises a reasonable doubt as to his guilt.

33The faxing of the drafts to the casinos, and the text messages to Bojani, were part of a tightly scheduled series of events. The person who texted Mr. Bojani, whomever it was, had to know where and when Mr. Fortunato was going to attempt to negotiate the drafts. At the very least, therefore, there must have been communication between Mr. Fortunato and that person.

34In his statement, Mr. Fortunato told the police that he had picked up the first draft in Toronto on the Friday morning, and the second draft on the Saturday morning. However, the evidence of Ryan Taylor, which I accept, was that Mr. Fortunato called him on the Friday afternoon with particulars of the draft, that Mr. Fortunato faxed a copy of the draft to Casino Rama on Friday afternoon, and that sometime around 4:00 o’clock that afternoon, he advised Mr. Fortunato that the draft could not be verified until the following day.

35Many parts of the statement are inherently improbable: that Mr. Fortunato had net casino winnings of $900,000 over a period of a year and a half; that over the same period, he loaned $900,000 to a person about whom he apparently knew nothing other than his first name; and that he loaned out his entire net casino winnings, notwithstanding the fact that he is of modest income, has no assets, and owes $400,000 to a loan shark. While these individual parts of the statement are inherently improbable, when put together, the resulting story is incapable of belief.

Post-offence conduct

36The significance of post-offence conduct evidence was explained by Weiler J.A. in R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, at para. 26:¹

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected.

37In the present case, the Crown argues that the statement given by Mr. Fortunato to the police was not just false, but was a deliberate fabrication from which I may infer a consciousness of guilt.

38In R. v. O’Connor (2002), 62 O.R. (3d) 623 (C.A.), the court held that before an adverse inference may be drawn, there must be independent evidence of fabrication, that is, evidence apart from the evidence showing the statement to be false. As in that case, the circumstances in which an accused made an out-of-court statement may be considered as independent evidence to show that the accused fabricated the statement.

39In this case, the Crown submits that apart from any extrinsic evidence that contradicts Mr. Fortunato’s version of the events, the intrinsic nature of the statement, the fact that it is an “absurdity”, together with the fact that it was made when the police confronted him with the evidence against him, may constitute independent evidence of fabrication. I agree.

40As explained in O’Connor, evidence capable of showing a statement to be false does not automatically translate into evidence showing that it has been fabricated. However, in the present case, although the inherent improbability of the accused’s story was one of the factors that I considered in coming to the conclusion that the story is false, the fact that the story is incapable of belief, and that no innocent explanation for making the statement was offered (other than an assertion of its truth), persuade me that it was fabricated for the purpose of concealing his involvement in the fraud. In the circumstances of this case, there is simply no other rational explanation for the making of the statement.

Disposition

41The bank drafts were stolen around noon on October 4, 2012. By about 2:00 p.m. the same day, the first draft had been forged with the accused’s name as payee, the accused had faxed a copy of the forged draft to Fallsview Casino, and had called the casino to see whether the draft had been verified. By about 4:00 p.m. the same day, the second draft had been forged with the accused’s name as payee, the accused had called Ryan Taylor at Casino Rama, faxed a copy of the forged draft to Casino Rama, and had texted Mr. Taylor to see whether the draft had been verified. Having rejected the “Pasquale” story, and no other explanation for the accused’s possession of the drafts having been offered, I am satisfied of the guilt of the accused, beyond a reasonable doubt, even without considering his statement to the police as providing additional circumstantial evidence of his involvement in the fraud.

42In the final result, I find Nicky Fortunato to be guilty on all four counts charged.

Footnotes

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