R. v. Caramanna, 2016 ONSC 960
CITATION: R. v. Caramanna, 2016 ONSC 960
COURT FILE NO.: CR-11-001949-00
DATE: 2016-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Plaintiff
– and –
Melchiorre Joseph Caramanna Defendant
COUNSEL:
Robert De Chellis, for the Crown
On his own behalf
HEARD: March 2-5, 9-13, 2015 and January 5-7, 11 and 13, 2016
REASONS FOR JUDGMENT
GILMORE J.:
Overview
[1] Melchiorre Joseph Caramanna (Mr. Caramanna) stands charged with one count of fraud over $5,000 between October 1, 2008 and August 1, 2009, pursuant to Section 380(1)(a) of the Criminal Code.
[2] This case involves commercial transactions in the asphalt paving business. It became clear as the evidence unfolded that this business is not always run along traditional or even legal lines. Deals are done on handshakes and without paperwork, transactions are sometimes in cash to avoid payment of HST and to ensure they are not traceable for income tax purposes, employment standards are observed in the breach with respect to payment for overtime and cash payments to employees from which statutory deductions are not made. The business is very much about connections and contacts and the maintenance of such connections is sometimes by gifts or free work. From this murkiness emerges the transaction in question in this case and the allegation of fraud.
[3] At the start of its case the Crown sought to prove that Mr. Caramanna had defrauded the complainant Money Mart of $146,000 by cashing ten cheques totaling that amount over a 10 month period in 2008. However, as the evidence unfolded during trial, the Crown changed the scope of its allegations to the period of November 1 – December 31, 2008. This period relates to one commercial transaction referred to as the “Sobey’s job” throughout the trial.
[4] The Crown alleges that Mr. Caramanna received the contract price of $89,681.41 for the paving work at the Sobey’s parking lot in Burlington, Ontario. This work was referred to throughout the trial as the November Sobey’s job.
[5] The Crown alleges that Mr. Caramanna perpetrated the fraud by having the cheques for the contract made out to his business – Nationwide Paving. Mr. Caramanna cashed the cheques at Money Mart. The Crown alleges that these funds should have been payable to Mr. Diego Gulizia’s company Nationwide Paving Inc. as his company paid for the materials and did the work. When Mr. Gulizia and his bookkeeper (his wife Anna Gulizia) discovered they had not been paid for the Sobey’s job and other jobs and that the cheques had gone to Mr. Caramanna, they complained and were reimbursed by the complainant Money Mart. Mr. Caramanna was subsequently charged with fraud over $5,000.
[6] Mr. Caramanna was self-represented throughout this trial. He was always on time and respectful to the court and to the Crown. At times he required guidance and explanations from the court as would be expected. Mr. Caramanna was given repeated and ongoing instructions from the court as to how to examine and cross-examine witnesses, the obligation of the Crown to prove its case, how to introduce and refer to exhibits, how to cross-examine on transcripts, the lack of obligation to call evidence in his own defence and suggestions as to how he might wish to frame his final submissions. He accepted this guidance politely and followed it as best he could.
The Undisputed Background Facts
[7] Mr. Diego Gulizia was the sole shareholder and director of Nationwide Paving Inc. Nationwide Paving Inc. was incorporated in 1999. This was a family business primarily involved in commercial and residential paving.
[8] In 2008 Mr. Gulizia had a heart attack. In 2009 he was diagnosed with liver cancer. Unfortunately, Mr. Gulizia died in May 2011. In 2008 he decided to incorporate a new company. He wanted to start giving some of the business responsibility to his sons and his nephew as he was slowing down physically after this heart attack. Therefore, in September 2008 he incorporated Nationwide Paving Limited. Mr. Gulizia was the president of this company. His son Salvatore was named a Director, his son Eliseo was named Treasurer and General Manager, and his nephew Vincenzo Prosperi was named Secretary. The head office of both corporations was the Gulizia’s home address namely 71 Vita Road, Woodbridge, Ontario.
[9] Mr. Gulizia and his wife Anna Gulizia had been married for 35 years. Approximately 10 years ago Mrs. Gulizia began doing bookkeeping for the family business. She would take care of invoicing, bill payments, banking and employee pay cheques. Mrs. Gulizia did not attend at job sites but had gathered a good knowledge of the accounting and bookkeeping requirements of the paving business. Mrs. Gulizia has never had an ownership interest in her husband’s business.
[10] Mr. Caramanna has been in the paving business for more than 35 years. He started out working with his father and then progressed to owning his own business. Mr. Caramanna met Mr. Gulizia 25 years ago when they were working on paving jobs in the same area. Mr. Gulizia and Mr. Caramanna began doing paving jobs together. The Sobey’s paving job in Burlington was one of those jobs.
[11] The Sobey’s property in Burlington is owned by a group of investors known as Glenwood Brant Holdings Inc. (Glenwood). Syndicat Management Inc. (Syndicat) does the property management for Glenwood including the Sobey’s property in Burlington. Syndicat hired Golder Associates Ltd. (Golder) as a geotechnical consultant for the Sobey’s paving job.
[12] Golder looked at the proposed job and prepared tenders for Syndicat. Mr. Caramanna had a long standing business relationship with Syndicat and had done work for them in the past including laying asphalt, gravel, line painting and constructing concrete curbing. Mr. Caramanna estimated that in some years he received $200,000 to $300,000 worth of work from Syndicat.
[13] Mr. Jeff Tolton gave evidence on behalf of Golder. Mr. Tolton testified that the Sobey’s job was awarded to Mr. Caramanna as Tender No. B2008-1. Mr. Tolton knew Mr. Caramanna and had worked with him before. Before the issues arising from the November 2008 Sobey’s job, Mr. Tolton had not had any issues with Mr. Caramanna either personally or in terms of work quality.
[14] Prior to the November Sobey’s job commencing, Mr. Caramanna registered a sole proprietorship named Nationwide Paving. The business head office was his home address at 26 Ewart Street in Bolton. The reasons for Mr. Caramanna registering this business are in dispute in this trial. For the sake of summary at this point, Mr. Gulizia provided the insurance, equipment and labour under the name of Nationwide Paving Inc. Mr. Caramanna was the named contractor under his business Nationwide Paving and the contact person for Golder and Syndicat.
[15] At the outset, Mr. Caramanna recognized that this was a large job and he would need to buy a significant amount of asphalt and gravel to start work. He told Mr. Tolton that he would need a 30% advance on the contract up front so that he could pay cash for the materials and receive a better rate. Mr. Tolton was agreeable and on November 3, 2008 advanced Mr. Caramanna the sum of $29,650.43 for materials. Mr. Caramanna provided an invoice to Syndicat for this amount from Nationwide Paving and a cheque was issued to Nationwide Paving.
[16] When the job was completed Mr. Caramanna provided a further invoice to Syndicat from Nationwide Paving for $70,030.98 for the balance. Syndicat paid Nationwide Paving by cheque the sum of $60,030.98. This represented the balance minus a $10,000 holdback.
[17] Mr. Caramanna cashed both of the cheques for the November Sobey’s job at Money Mart. Mr. Gulizia claims he was not paid for any of the work at the Sobey’s job. Mr. Caramanna denies this. His evidence was that he and Mr. Gulizia agreed that Mr. Gulizia would receive $35,000 cash for the job. According to Mr. Caramanna, the agreed upon cash was delivered to Mr. Gulizia’s son and Mrs. Gulizia in early December 2008.
[18] Mr. Gulizia gave an ante-mortem statement to police on June 2, 2009. On application by the Crown, this statement was admitted into evidence. In his statement, Mr. Gulizia denies receiving any money from Mr. Caramanna. He also denies any arrangement between he and Mr. Caramanna for a fee of $35,000 for the Sobey’s job. The weight to be ascribed to Mr. Gulizia’s statement will be dealt with later in these reasons.
[19] Mrs. Gulizia also denies that Mr. Caramanna paid her husband’s company $35,000. Her evidence was that no money was received for the Sobey’s job. Money was spent for materials, labour and for repairs for deficiencies for which Nationwide Paving Inc. was never paid.
[20] The scope of the Crown’s original allegations should be noted at this point as the other jobs involved will be referred to in these reasons. Exhibit 3 is a copy of 10 cheques made out to Nationwide Paving from Glenwood and another associated investor group Cabo Three Investments Inc. (Cabo) and cashed by Mr. Caramanna at Money Mart. The cheques total the Crown’s original alleged fraud of $142,000. Two of these ten cheques are the cheques referred to above for the November 2008 Sobey’s paving job.
[21] The remaining eight cheques are dated between January and June, 2009. Mr. Caramanna testified that these cheques represented work he did for Cabo and Glenwood on King Street and that Mr. Gulizia did none of this work. While Mrs. Gulizia was certain that work was done on King Street based on certain notations in her work calendar, Mr. Gulizia was unclear in his statement as to what work was done, when, and how much the contracts were for. The Crown maintains that Mr. Caramanna had the cheques made out to Nationwide Paving and cashed them even though Mr. Gulizia’s company did the work. However, given the lack of documentary proof in relation to the King Street work, the Crown did not include this work in the scope of its allegations.
[22] There was another job done at the Sobey’s location in June 2008. There is no doubt that that job was completed and that Mr. Gulizia paid for materials and did work on that job. The job was awarded to Mr. Caramanna’s other company Durapave by Syndicat for $64,402.00. Mr. and Mrs. Gulizia claim that Nationwide Paving Inc. was not paid for their work on that job.
[23] Mr. Caramanna’s evidence was that he paid Mr. Gulizia for the June work as per their usual arrangement. However since Mrs. Gulizia’s evidence was that she was not aware that the June Sobey’s job was a completely separate job from the November job and given that the contract was awarded to Durapave and not Nationwide Paving, the Crown has not included this in the scope of their allegations. It should be noted that the Crown does not dispute Mrs. Gulizia’s position that Nationwide Paving Inc. was not paid for their work on the June Sobey’s job.
[24] Money Mart paid Mrs. Gulizia the total of the 10 cheques cashed by Mr. Caramanna being the sum of approximately $142,000. Money Mart is therefore the complainant in this case. According to the Crown, the $142,000 represents payments which should have gone to Nationwide Paving Inc. for work done at King Street in Toronto and the Sobey’s work in June and November 2008. However, as indicated above, given the fact that Mr. Gulizia was not available to testify and the lack of documents with respect to some of the Crown’s original allegations, the Crown seeks to prove that Mr. Caramanna defrauded Money Mart of the amounts paid to him only for the November Sobey’s job being a total of $89,681.41.
The Crown’s Burden of Proof
A. Reasonable Doubt
[25] The onus is on the Crown to prove its case beyond a reasonable doubt to the satisfaction of the trial judge before an accused may be convicted. This onus never shifts to the accused. Cory J., in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at pp. 757-58, explained the appropriate instruction on reasonable doubt where credibility is in issue:
[26] Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury (or him or herself )on the question of credibility along these lines:
[27] First, if you believe the evidence of the accused, obviously you must acquit.
[28] Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
[29] Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[30] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242, Iacobucci J. added the following:
[31] In my view, an effective way to define the reasonable doubt standard . . . is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required . . . to convict. Both of these alternative standards are fairly and easily comprehensible.
B. Proper Approach to the Evidence
[32] The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at p. 360 per Sopinka J. for the majority.
[33] W.(D.) is not meant to “straightjacket” the court. For example, in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the court held at para. 66 that no further explanation for rejecting the accused’s evidence is required, other than that it conflicted with the evidence of the complainant and the complainant’s evidence was accepted. Similarly, in R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), the court held at para. 53 that a rejection of the accused’s evidence based on a reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence can be an acceptable explanation for rejecting the accused’s evidence.
[34] Galligan J.A. (Arbour J.A. concurring) applied these principles in R. v. G. (M.), supra at pp. 355-56, as follows:
[35] [W]hen trial judges are assessing credibility it is worthwhile to keep in mind what was said by O’Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pp. 356-7, 4 W.W.R. (N.S.) 171 (B.C.C.A.):
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…
[36] The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [Emphasis in R. v. G. (M.).]
The Legal Test for Fraud
[37] The leading case on fraud is R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 SCR 5. As per that case, there is a single precept underlying the offence of fraud: “Commercial affairs are to be conducted honestly” (para 15).
[38] The actus reus of fraud has two components. The accused must have committed a dishonest act which caused deprivation to the victim. The dishonest act may be the result of deceit, falsehood or “other fraudulent means.” The deprivation can include an actual deprivation or the risk of prejudice to the victim by the dishonest act.
[39] The mens rea of fraud involves the subjective belief of the accused as to whether he or she appreciated that certain consequences would follow from their acts. However, it must be made clear that this does not mean that if an accused person truly believes that a dishonest act they committed is moral, they will be exonerated. Further, the Crown need not prove what was in the mind of the accused at the time of the offence. It is often the case that a subjective awareness of the consequences can be inferred from the act itself (see Theroux, para 23). The proper focus is whether the accused intentionally committed the fraud knowing that the deprivation or risk of deprivation would follow.
[40] Based on the above, the Crown must prove in this case that Mr. Caramanna cashed the cheques for the November 2008 Sobey’s job knowing that those funds should have been paid to Nationwide Paving Inc. Further, he created Nationwide Paving so that he could cash the cheques thereby depriving Mr. Gulizia’s company of payment for work done and ultimately depriving Money Mart of the funds they reimbursed to Mr. Gulizia.
The Nature of the Relationship Between Mr. Caramanna and Mr. Gulizia
[41] It is important to understand this relationship and for this court to make certain findings of fact about it in order to understand the premise for the defence theory and how this transaction came about and proceeded.
[42] Mr. Caramanna testified that he and Mr. Gulizia had been friends for 25 years. Although they worked together on certain paving projects, their relationship went beyond business. They went fishing together and confided in one another. Mr. Caramanna testified that Mr. Gulizia was frank with him about his extra-marital affairs. He had an affair with a woman named Jeanette and a subsequent affair with a woman name Jackie. Mr. Caramanna told the court that Mr. Gulizia’s affairs were well known in the industry as Jackie would bring beer and sandwiches to Mr. Gulizia on the job site. Mrs. Gulizia was jealous and had caught Mr. Gulizia with his mistress at their family cottage and during a hospital visit when he was recovering from his heart attack.
[43] Mr. Caramanna testified that Mr. Gulizia wanted to leave his wife for Jackie. He knew he was ill and wanted to spend his remaining time with the woman he loved. However, he was fearful of how this could work. He could neither read nor write and his wife controlled all of the financial aspects of his business. He asked to meet with Mr. Caramanna before the November Sobey’s job. He proposed that Mr. Caramanna register a sole proprietorship called “Nationwide Paving.” In this way, funds owed to Mr. Gulizia from the Sobey’s job could be funneled to him without his wife knowing. He and Mr. Caramanna would be true partners and share jobs from that point forward. Mr. Caramanna had good contacts in the industry, such as Syndicat, and Mr. Gulizia had the equipment and personnel to do larger jobs. It would benefit both of them.
[44] Mr. Caramanna agreed and proceeded to register a sole proprietorship called Nationwide Paving and invoiced Syndicat in that manner for the November 2008 job.
[45] Mr. Caramanna gave a statement to the police before he was arrested. This statement was found to be voluntary after a voir dire. In the course of giving this statement Mr. Caramanna told the police that he registered Nationwide Paving because of a request from Syndicat. Syndicat complained that the insurance and WSIB documents were in the name of Nationwide Paving Inc. and the contract was signed by Mr. Caramanna on behalf of Durapave. Syndicat wanted consistency in the documentation. Mr. Caramanna told the police that he and Mr. Gulizia agreed that he would register Nationwide Paving to address the issue raised by Syndicat. According to Mr. Caramanna, Mr. Gulizia was fully aware of this and agreed to it.
[46] When asked in cross-examination why he did not tell the police about his meeting with Mr. Gulizia and their agreement to register Nationwide in order to divert funds from his wife, Mr. Caramanna said he did not wish to air Mr. Gulizia’s dirty laundry in public. In any event, he said did tell the police during the course of his statement that he knew Mr. Gulizia was having marital problems.
[47] There is some evidence to support Mr. Caramanna’s theory about the reason for registering Nationwide Paving. Jeff Tolton from Golder testified that the first time he met Mr. Gulizia was just before the November 2008 job. He thought he recalled being introduced to him by Mr. Caramanna as his business partner. This would support Mr. Caramanna’s contention that prior to this (such as during the June 2008 Sobey’s job) he and Mr. Caramanna were not partners. Mr. Caramanna’s company Durapave, hired Nationwide Paving Inc. to do work on the June job but they were not partners.
[48] Mr. Doug Tripp gave evidence at trial. Mr. Tripp works for Syndicat Management and knew Mr. Caramanna well. He described Mr. Caramanna as having a good business relationship with Syndicat. Like Mr. Tolton, Mr. Tripp had never met Mr. Gulizia before the November 2008 job. He testified that he recalled Mr. Caramanna introduced Mr. Gulizia as his partner. He believed they shook hands.
[49] There is other evidence that does not support Mr. Caramanna’s theory but that evidence is somewhat contradictory. For example, Mrs. Gulizia told the court she was suspicious that her husband was having affairs and that he left her for two weeks in 2008. Mr. Gulizia in his statement denied that they had ever been separated. He said they argued for a bit because the business started to go down when he got sick. Interestingly, he was clear that he talked to Mr. Caramanna about his marital problems because Mr. Caramanna was having marital problems at the same time.
[50] Both Mr. and Mrs. Gulizia denied that Mr. Caramanna had ever spoken to them about Nationwide Paving and Mr. Gulizia denied that the arrangement which Mr. Caramanna testified about ever existed. He said he would never engage in anything which would divert money from his family.
[51] Mr. Joe Di Noto gave evidence for the defence. Mr. Di Noto owns a road maintenance business which does asphalt patching, line painting and concrete work. He knows both Mr. Gulizia and Mr. Caramanna. He testified that Mr. Gulizia told him that he and Mr. Caramanna started Nationwide Paving so he could get some money to take care of his mistresses. Mr. Gulizia’s extra-marital affairs were well-known in the business according to Mr. Di Noto.
[52] The Crown urges the court to give little weight to Mr. Di Noto’s testimony given that he has been convicted of robbery, theft and attempted fraud and has an outstanding fraud conviction in this jurisdiction. The Crown submits that Mr. Di Noto is not a reliable witness and has animus towards Mrs. Gulizia in relation to a business transaction in which he says she diverted $15,000 owed to his company to Nationwide Paving Inc.
[53] Mr. Caramanna maintained throughout the trial that he was a contractor and not a salesman. He would use his contacts to find jobs and then contract them out. Mr. Gulizia’s company was one of the companies to whom he contracted jobs. Mr. Caramanna was frank that he did not have enough machinery or personnel to do larger jobs. He had one truck and a bobcat which allowed him to do smaller jobs such as the curbing and fencing on the King Street job. For larger jobs such as the Sobey’s parking lot, he needed the resources of a company such as the one owned by Mr. Gulizia.
[54] Mr. Caramanna was insistent throughout the trial that when he and Mr. Gulizia worked together they would agree on a price for a job, Mr. Gulizia would provide the insurance coverage, statutory declaration and WSIB certificate if needed. However, the contract was in Mr. Caramanna’s company name and he was the contact. Mr. Caramanna supervised the job and kept whatever was left after he paid Mr. Gulizia. Sometimes this was a good profit and sometimes not, depending on the circumstances.
[55] Mr. and Mrs. Gulizia were equally insistent in their evidence that Mr. Caramanna was an independent salesman and not a contractor. He was not employed by them; he simply found jobs for them and then received a percentage, usually 10-15% by way of commission. Mr. Caramanna challenged Mrs. Gulizia to produce cheques as evidence of the payment of commission to him. One cheque was produced in the amount of $1,275 dated October 3, 2005 (Exhibit 15). Mr. Caramanna suggested to Mrs. Gulizia that this was not a commission cheque but a cheque for the sale of some of his equipment to Nationwide Paving Inc. Mrs. Galuzia did not agree. Interestingly, however, in cross-examination on March 10, 2016 Mrs. Gulizia agreed that Syndicat was Mr. Caramanna’s client and that he contracted out jobs for them.
[56] It is not clear to this court exactly what the relationship was between Mr. Caramanna’s various companies and Nationwide Paving Inc. in the past. It is likely the case that the relationship varied depending on the type of job. According to the evidence, the jobs ranged from a small residential driveway to larger ones such as the November 2008 job.
[57] I find however, that with respect to the November 2008 job that Mr. Caramanna was more than a salesman, he was the contractor who engaged Nationwide Paving Inc. to do the labour. The reasons for this finding are set out below:
(a) Mr. Caramanna had a long standing relationship with Syndicat. Mr. Tolton was clear that contracts were given to contractors. He did not testify that contracts were given to salespeople;
(b) Mr. Caramanna signed the tender for the November 2008 job as the contractor. Mr. Gulizia witnessed the tender;
(c) Mrs. Gulizia testified that Mr. Caramanna was paid for many jobs by way of a commission cheque. Although she described herself as a competent bookkeeper, she was able to come up with only one cheque. There is a concern, based on Mr. Caramanna’s evidence, that that cheque was not actually for commission;
(d) Mr. Caramanna had many years of experience in the paving business and significant contacts. Mr. Tripp described Mr. Caramanna as being on site for Syndicat jobs “most of the time.” It would not make sense for Mr. Caramanna to be on site for jobs if he was only a salesman. If that were the case, once the contract was signed his job would be done and he would collect his commission;
(e) There is some evidence that Mr. Caramanna paid for materials for the November 2008 job. While Mrs. Gulizia testified that Nationwide Paving Inc. paid for all of the materials, she was unable to produce documentary evidence to prove this was the case. Why would a salesman pay for any materials? The more reasonable and logical explanation is that Mr. Caramanna was the supervising contractor for the November 2008 job;
(f) Mr. Gulizia’s evidence must be dealt with. I find that it should not be given the weight which the Crown seeks it should. It defies logic, and the evidence given by credible witnesses such as Mr. Tolton and Mr. Tripp that Mr. Caramanna was simply a salesman for any of the Syndicat jobs. He was the contractor who received and signed the tenders. He subcontracted certain of the work to Nationwide Paving Inc. No other explanation makes sense.
[58] I turn now to the issue of why Mr. Caramanna registered Nationwide Paving. The Crown suggests that this was done surreptitiously and deceitfully in order for Mr. Caramanna to invoice for cheques which should have rightfully gone to Nationwide Paving Inc. Mr. Caramanna testified that this was openly discussed between himself and Mr. Gulizia. He gives two explanations for why he registered the business; it was to divert money to Mr. Gulizia without his wife finding out and/or it was for consistency as requested by Syndicat with respect to whose name would go on documents such as the insurance binder and the statutory declaration.
[59] It is important to look at the timing in this case. Mr. Tolton and Mr. Tripp do not recall meeting Mr. Gulizia before. They knew Mr. Caramanna well. This is interesting since clearly Nationwide Paving Inc. did work on the Sobey’s parking lot in June 2008. I infer from this that prior to the November job, Mr. Gulizia was simply part of the labour team to whom Mr. Caramanna had subcontracted the work. Mr. Gulizia had no status and Mr. Caramanna was the contractor and contact person in the eyes of Syndicat. However, that changed before the November 2008 job when Mr. Gulizia was introduced as an equal business partner. Mr. Caramanna clearly felt it was important to make public the change in his relationship with Mr. Gulizia.
[60] There is no reason to doubt the evidence of Mr. Tolton or Mr. Tripp. There is some reason to doubt the evidence of Mr. Gulizia. He denied that he had any marital problems when it seems clear that his infidelity was a well-known and apparently a quite accepted fact in the trade. He denied leaving his wife for two weeks after he had his heart attack. Mrs. Gulizia did not deny that period of separation. Interestingly, the separation timing is consistent with Mr. Caramanna’s evidence that upon becoming ill, Mr. Gulizia decided he wanted to make changes to his life including leaving his wife.
[61] I do not agree with the Crown that the fact that he was having an affair is irrelevant. Indeed, it seems to have been an undercurrent in much of what went on in this case even if all of Mr. Di Noto’s evidence is disregarded.
[62] I accept Mr. Caramanna’s evidence that he and Mr. Gulizia were close friends and that Mr. Gulizia confided in Mr. Caramanna about his marital problems. Whether they came up with the idea to register Nationwide Paving at the behest of Syndicat or to divert money from Mrs. Gulizia or both, the premise is not implausible. Mr. Caramanna did work for Syndicat in June 2008 on the Sobey’s parking under his Durapave company name. Why change the company name and introduce Mr. Gulizia as his partner in November 2008 when the parties (that is, Caramanna, Gulizia and Syndicat) were all the same as the ones in June 2008?
[63] I accept Mr. Caramanna’s evidence that he and Mr. Gulizia were partners in the November Sobey’s job and that the sole proprietorship was registered for either or both of the reasons given by Mr. Caramanna.
Financial Arrangements for the November 2008 Sobey’s Job
[64] Mr. Caramanna testified that he paid for the majority of the materials on the Sobey’s job. He relies on “tickets” from Nelson Aggregate Co. and Associated Paving and Materials Ltd. He told the court that Mr. Tolton contacted him and wanted verification of the amounts and type of gravel and asphalt purchased. Mr. Caramanna faxed him all of the tickets he received when he purchased the materials. Mr. Tolton then prepared a list of the materials based on type and tonnage. Based on this list (contained in the Exhibit 56 binder), a total of $45,633 of materials were purchased. The tickets all refer to “Nation Wide” as the customer.
[65] Mr. Caramanna testified that he requested the 30% advance on the contract price to assist with the purchase of materials. He was questioned about how he came up with the balance since he would have still needed about $16,000 of his own money to purchase the materials he testified that he bought. His evidence was that this money came from cash he had at his home. Given the nature of the paving business Mr. Caramanna said it was not unusual for him to have up to $100,000 in cash at his home at any given time. If a job came up suddenly and he needed to buy materials from a supplier he did not know he had cash available. He testified this was not unusual in his industry. He further testified that if he could obtain an advance for materials rather than dipping into his resources he would do so whenever possible.
[66] Mr. Caramanna was questioned about what happened to the cheque for $29,650 he was given by way of advance. Ms. Olga Novikov testified at trial. She has worked for Money Mart for 10 years. In 2008 she knew Mr. Caramanna as a regular Money Mart customer. Ms. Novikov told the court that Money Mart charges a 3% commission to cash cheques. Mr. Caramanna testified that he used Money Mart because he did not have to wait for his money. He needed cash right away for suppliers or in this case to pay Mr. Gulizia when the job was done.
[67] Ms. Novikov testified that on November 7, 2008 Mr. Caramanna opened a new account for a registered business; Nationwide Paving. Mr. Caramanna also had an account with Money Mart for his business Southern Stone.
[68] Mr. Caramanna presented Ms. Novikov with the cheque for $29,650 made out to Nationwide Paving to be cashed. Ms. Novikov’s branch did not have sufficient cash on hand to pay Mr. Caramanna. They gave him some cash and offered to pay the rest by way of 15 Western Union money orders for $1000 each.
[69] Mr. Caramanna was questioned about these money orders (Exhibit 48 a-n) which were all dated November 10, 2008. Six of the ten money orders were made out to J. Ghali-Caramanna, Mr. Caramanna’s wife. The other four money orders were made out to “Quality Used Cars.” Mr. Caramanna responded that he owed some payments on a car he had bought and that he gave his wife some of the money. The Crown pursued this wanting to know why Mr. Caramanna would insist on an advance for materials when he used almost half the money for other purposes. Why not use some of the cash at his house to give to his wife or the car company? Why pay the high commission charged by Money Mart when he apparently had all the money he needed on hand? Mr. Caramanna had no real answer for these questions other than it was better to get money up front from Syndicat than to wait for it until the end of the job.
[70] Ms. Gulizia insisted that her husband’s company paid for all of the materials for the November Sobey’s job but could not come up with documentary proof of this. Mr. Caramanna did not deny that Mr. Gulizia paid for the materials documented in Exhibit 11a) and b). That was about $10,000 worth of asphalt.
[71] Mr. Caramanna disputed Mrs. Gulizia’s evidence about the purchase of any additional materials. She testified that in addition to the asphalt purchased from Associated Paving in Exhibit 10 her husband’s company also purchased a further $8,420 as per Exhibit 10 and aggregate and concrete as per credit card charges (Exhibit 54) from Nelson Aggregate and Aberfoyle Concrete for $8,250 and asphalt purchased from D. Crupi and Sons Limited for $3,201.02. All of these charges and purchases totaling almost $30,000 were made between November 6-12, 2008, the exact period of time when the Sobey’s job in Burlington was done as per Mrs. Gulizia’s calendar.
[72] Mrs. Gulizia was asked why, if she takes the position that her husband’s company paid for all the asphalt, she could not provide all of the receipts or records. She told the court that she was only told to provide evidence that materials were paid for and she did that.
[73] Mr. Caramanna disputed that Nationwide Paving Inc. paid for $30,000 worth of asphalt. He did not deny that they paid for about $10,000 worth of materials. He used the “Crupi” bill as an example. D. Crupi and Sons is an asphalt plant located in Scarborough. He testified that material would never be purchased from a plant so far from the actual job. As well, the asphalt mix is tested on delivery. He was adamant that Golder would not have approved asphalt coming from a different location. Finally, asphalt must be put down when it is hot. If the material had to be transported for several hours, the spreading quality would be diminished and likely rejected by the testing engineers. Given Mr. Caramanna’s experience in the industry I prefer his evidence over that of Mrs. Gulizia with respect to the Crupi invoice. I do not find that forms part of the materials paid for for the November 2008 job.
[74] With respect to the Visa charges and the charges in Exhibit 10, Mr. Caramanna challenged Mrs. Gulizia to provide the “tickets” for those purchases. Without those tickets, he testified there is no proof that the material was purchased for the Burlington Sobey’s job. The tickets provided by Mr. Caramanna clearly state that the material was sold to “Nation Wide” for the “Sobey’s” job. Mrs. Gulizia disagreed and relied on her calendar to match up the dates and insisting that Mr. Gulizia was not doing any other job at that time so the material must have been purchased for the Sobey’s job.
[75] The Crown submitted that Mr. Caramanna has no receipts for what he says he purchased by way of materials. I disagree. The Associated Paving ticket invoice numbers in Exhibit 56 are different from the invoice numbers in Exhibit 11. The only duplicate is ticket no. 160333 which is found in both the documents Mr. Caramanna says are his tickets and in Exhibit11(b). With respect to the Nelson Aggregate amounts, the Visa statement produced by Mrs. Gulizia shows 24 aggregate purchases during the relevant period in November. However, there are 61 tickets that Mr. Caramanna says he paid for. Since the tonnage but not the price is on the ticket, and the Visa statement only shows the price and the date but not the tonnage, it is virtually impossible to reconcile who paid for what aggregate.
[76] Mr. Caramanna testified that he and Mr. Gulizia agreed that he would be paid $35,000 cash for the Burlington Sobey’s job. That is why he cashed the final cheque at Money Mart. Mr. Gulizia wanted his money right away when the job was done and a bank would normally put a seven to ten day hold on a cheque of that amount. He told the court he was naïve in agreeing to give the cash to Mr. Gulizia’s son based on the son’s statement that that was his father’s request. He should have given the money directly to Mr. Gulizia as agreed.
[77] When he went to Mr. Gulizia’s house to deliver the money, he counted out the cash to his son in this kitchen. Mrs. Gulizia was present. Mr. Gulizia arrived and a disagreement arose because Mr. Gulizia was upset that the cash had been given to Mrs. Gulizia and his son. Mrs. Gulizia was upset when her husband asked her to give him the cash.
[78] Mr. DiNoto came to Mr. Gulizia’s house that day. He had been working on a job with Mr. Gulizia. He stayed in the car, but observed that there was an argument going on. He saw Mr. Caramanna throw his hands in the air and saw that Mr. Gulizia was upset because Mr. Caramanna had given some money to his son and not to him. The Crown asks that the court give no weight to Mr. Di Noto’s evidence given that no application for an ante-mortem statement was made by the defence, difficulties with Mr. Di Noto’s credibility and his animus towards Mrs. Gulizia.
[79] Mr. and Mrs. Gulizia denied that any such scene took place. They were consistent in their position that no deal had been agreed to with Mr. Caramanna. Nationwide Paving Inc. was never paid for their work or their materials. In fact, Mr. Gulizia’s evidence was that Syndicat still owes him money for the materials he expended on repairing deficiencies.
[80] Mr. Caramanna was consistent in his evidence that he paid Mr. Gulizia $35,000. He received a total of $89,681 for the Burlington job. He paid out $45,000 in materials, $35,000 to Mr. Gulizia and $14,000 was held back. Mr. Caramanna told the court that he and Mr. Gulizia were to split the holdback once the deficiencies were fixed. When the cost to repair the deficiencies became clear in April 2009, Mr. Caramanna testified that he and Mr. Gulizia agreed that Mr. Gulizia could retain the entire holdback.
[81] Mrs. Gulizia testified that she was not concerned when they did not get paid for the Sobey’s job when it was done in November 2008. At that point, the deficiencies could not be repaired until the spring. Payment for jobs was often delayed in this way. It was not until the deficiency was repaired and they asked to be paid for the entire job that they found out that Mr. Caramanna had cashed the cheques made out to his business.
[82] So what exactly happened? If Mrs. Gulizia is to be believed, her husband’s company paid for the materials in her documents ($30,000) plus all of the tickets in Exhibit 56 for a total of approximately $75,000 worth of materials for an $89,000 job. That left a profit of about $14,000 with which they were to pay all their employees and Mr. Caramanna. Based on Mr. Gulizia’s evidence, Mr. Caramanna would be owed between $8,900 and $13,350 if the commission spread is between 10 and 15%. This would leave virtually nothing left to pay their employees for a job which lasted about a week.
[83] If Mr. Caramanna is to be believed he paid $35,000 to Nationwide Paving Inc., in cash. He says he has invoices or receipts for many jobs where he paid Mrs. Gulizia for Nationwide Paving Inc.’s work including this one. He is sure the receipts and invoices are in the basement of his parent’s house. He has had over five years to look for them. But he cannot be bothered because the basement is disorganized and it would take a lot of time to go through everything to find them. Based on what says he paid for materials and to Mr. Gulizia he would have made no profit on this job and would in fact be out the difference between the cost of the materials and the $29,000 advance. Mr. Caramanna’s response to this is that this sort of thing just happens sometimes in his line of work. Sometimes his estimates are off and he does not make anything, sometimes he makes are very large profit.
[84] In short, the court is left in a position where it does not believe the accused or Mr. or Mrs. Gulizia with respect to the payment for the November Sobey’s job. Specifics of why this is the case are as follows:
(a) Mrs. Gulizia described herself as a good bookkeeper. She insisted that Nationwide Paving Inc. paid for all the materials for the November Sobey’s job but she was only able to provide proof of payment for some of the materials. I find that both Mr. Caramanna and Nationwide Paving Inc. paid for materials. That arrangement is also consistent with Mr. Caramanna’s evidence that he and Mr. Gulizia were partners in the November Sobey’s job;
(b) Mr. and Mrs. Gulizia’s evidence on the profit issue would mean that if Nationwide Paving Inc. was the contractor, and not Mr. Caramanna, they would have paid out 85% of the job value in materials (that is, $75,000 in materials on an $89,000 job.) Mrs. Gulizia’s evidence was that expenses were usually 75% of a job. If materials alone were 85% of this job, without factoring in fuel, salaries and Mr. Caramanna’s commission, the Gulizia’s would have earned no profit at all on this job;
(c) Mr. Caramanna’s version of the facts is equally nonsensical. If he paid out $45,000 in materials and $35,000 to Mr. Gulizia, he would have made about $9,000 in profit. However, at trial he spoke of a further holdback and did not disagree that he had made NO profit on this job. It seems incredible and unrealistic that two experienced businessmen who had been in the paving business all of their working lives would price a job or do work on a job where they stood to earn nothing;
(d) I do not accept Mrs. Gulizia’s evidence that she and her husband were content to wait until the spring or some undetermined date to be paid for their work at the Burlington Sobey’s. According to her testimony, the work had been completed subject to a deficiency repair and $75,000 in materials expended. According to Exhibit 56, Mr. Caramanna invoiced Glenwood at the beginning of December 2008 for the balance of the contract price. A holdback of $10,000 was to be retained for 45 days based on Mr. Tolton’s letter to Glenwood dated December 4, 2008. If this was Mr. Gulizia’s job as he would have us think, why did Mrs. Gulizia not request payment in early December? The work had been done so why should they not be paid net of the holdback amount? It would seem to belie the entire meaning of a holdback amount if contractors had to wait until all repairs were done before they could be paid anything at all. I infer that most paving businesses could simply not afford to front all of the labour, equipment, materials, fuel and employee costs of working this way;
(e) There is also a concern about the June Sobey’s job. Mrs. Gulizia testified that Nationwide Paving Inc. paid $17,260 for materials for the June 2008 job. There was no evidence that there were any deficiencies for this job. Why would she wait until mid-2009 to seek payment on that job? According to Exhibit 55, Mr. Caramanna invoiced for the June job in July 2008. By mid-2009 Mrs. Gulizia, based on her own evidence, would have paid out over $90,000 in materials on behalf of Nationwide Paving Inc. with no payment on either the June or November job. Waiting this long for payment simply does not make sense especially when there was no evidence of any deficiency related to the June 2008 job. The court will not speculate on why it took so long for the Gulizias to come forward other than it does not appear to accord with industry practices for payment;
(f) There are aspects of Mr. Caramanna’s behavior in this matter that give the court pause as well. Why did he assiduously avoid Mr. Tolton and Syndicat when they tried to contact him about the deficiencies? One might infer that he had something to hide. However, he did appear for the April meeting with Mr. Tolton and Mr. Gulizia. The decision to allow Mr. Gulizia to retain the entire holdback in exchange for doing the repairs seems reasonable;
(g) There is also his behavior with respect to cashing cheques at Money Mart with an expensive commission when he told the court he kept large amounts of cash in his home. After hearing all of the evidence on this trial over many days, it most unfortunately appears to be the case that this type of approach is part of the “murkiness’ about the paving business which was mentioned earlier. I accept that many transactions in the paving business are done in cash. I find that Mr. Caramanna was likely correct that he could get a better deal on materials when he paid cash. I accept his evidence that Money Mart transactions were not traceable in the same way that they would be through a regular bank account. It is not implausible that Mr. Gulizia would want to be paid in cash. Mrs. Gulizia was frank with the court that Nationwide Paving Inc. did business in cash sometimes. In the end, Mr. Caramanna was prepared to pay the premium commission to Money Mart in exchange for a quick cash turnaround and a lack of traceability. In other cases, this might seem dubious in the context of commercial transactions but not here, given the background;
(h) I make no finding as to what amounts Mr. Gulizia did or did not receive from Mr. Caramanna for the November work because I do not believe the accounts of Mr. Caramanna or the Gulizias in this regard. As for Mr. Caramanna, he has provided no proof of such a payment. As well, making a payment in such an amount would result in him making little or no profit. Mrs. Gulizia maintains she received no money from Mr. Caramanna. The Gulizia son to whom Mr. Caramanna says he gave the cash was not called as a witness. Therefore, there are only the competing accounts of the Gulizias and Mr. Caramanna. I do not use the evidence of Mr. Di Noto to essentially break the tie. His evidence is filled with frailties too large to overcome by this court. What I am left with is a finding that Mr. Gulizia and Mr. Caramanna were in some form of partnership together. Both were experienced businessmen who wanted to be paid for their work and to make a profit. To enter into any arrangement where neither would benefit is improbable. In short, I do not know what the arrangement was between Mr. Gulizia and Mr. Caramanna as I do not believe either version of events.
General Comments on Credibility
[85] In general I found that Mrs. Gulizia was not a credible witness. This stemmed mostly from her insistence that her husband had done work patching asphalt on King Street when I find there was significant evidence that he had not. As well, Mrs. Gulizia retained the $142,000 she received from Money Mart without actually being able to trace which cheques were for which jobs. She did not seem to feel that was important.
[86] When it became clear that there was some real concern as to whether Mr. Gulizia had done any work on King Street at all, Mrs. Gulizia did not seem to be willing to return any of the wrongfully reimbursed funds. Rather, she initially insisted that a single vague reference in her calendar and her husband’s reference to some work on King Street in Toronto entitled her to retain these funds without any documentation to verify that work had been done. She finally conceded during cross-examination that she was no longer 100% sure that the King Street work had been done by her husband’s company. In summary, her skill as a bookkeeper is in question as is her credibility in this case. The Crown urges the court to find Mrs. Gulizia a credible witness because she has been reimbursed and has no reason to lie. However, based on her own evidence she has every reason to lie as the possibility exists she may have to repay to Money Mart all or part of the funds she received.
[87] When asked about the materials for the Sobey’s job in November, Mrs. Gulizia testified she was not aware of the amount of material used or exactly what amount was purchased. This seems highly improbable for a bookkeeper involved in the paving business for 10 years. As was seen by the documentary evidence in this case, the cost of asphalt and gravel is a substantial part of the expense for any paving job. It would seem unlikely that Mrs. Gulizia would not know exactly how much was purchased for the November Sobey’s job just as she knew exactly what was purchased for the June job. I find that the reason Mrs. Gulizia did not know how much material was purchased for the November job is because a large part of it was purchased by Mr. Caramanna. Mrs. Gulizia refused to concede this because, I find, this would mean that the Mr. Caramanna would no longer be seen as merely a salesman but a contractor and possibly her husband’s partner on the job.
[88] Mrs. Gulizia’s evidence was inconsistent about Mr. Caramanna’s role with Nationwide Paving Inc. When the trial started she insisted that Mr. Caramanna was a salesman and nothing more. As the trial progressed, she conceded that Syndicat was Mr. Caramanna’s client and that he did subcontract out jobs for them.
[89] Mr. Caramanna showed Mrs. Gulizia Exhibit 28 during the trial. This was Mr. Caramanna’s invoice for the June 2008 Sobey’s job for approximately $57,000. Mrs. Gulizia’s evidence was that this was the first time she had seen the invoice and that she thought the June and November 2008 Sobey’s jobs were the same job. This was concerning to the court in terms of Mrs. Gulizia’s knowledge of exactly what was going on in her husband’s business. She tried to tell the court that the June 2008 asphalt tickets somehow were related to the November 2008 job. This was completely incorrect.
[90] In summary, I find that Mrs. Gulizia was not the efficient or effective bookkeeper she would have the court believe. She could not adequately account for the materials purchased for the November 2008 job. She incorrectly thought the June and November 2008 jobs were the same one. She insisted her husband did work on King Street in Toronto when there was considerable evidence to support he did not. She insisted that Mr. Caramanna was merely a salesperson for Nationwide Paving Inc. and then later conceded he was actually a contractor who subcontracted out to her husband’s business. She provided documents to the court on a piecemeal basis. I find that Mrs. Gulizia was not fully informed as to what her husband was doing or what business deals he was making. Her insistence that he was not Mr. Caramanna’s partner and that he was paid nothing for either the June or November 2008 jobs at Sobey’s are not accepted by this court.
[91] Turning to Mr. Caramanna I find that to some extent he is a victim of his own disorganization and dissembling. I agree with the Crown that some of his evidence is simply not believable. For example, why would he pay exorbitant commission at Money Mart when he had his own cash to pay for materials? Why tell the police you have all the documents you need to prove your case when you can produce none, and worse did not take the time to look for them? Why would he give the cash for the November 2008 job to the Gulizia son in Mrs. Gulizia’s presence when the whole reason for registering the new business was so that money could be diverted away from Mrs. Gulizia? Why would he even do the November job when, based on his own evidence, he stood to make no profit whatsoever? The answers Mr. Caramanna gave to these questions at trial were not satisfactory. On the whole I found that Mr. Caramanna came across as sincere and knowledgeable in the paving business. At the same time, he did not hesitate to concede to the court that much of his business is done in cash for the express purpose of hiding income and avoiding tax.
[92] The unsatisfactorily answered questions in Mr. Caramanna’s evidence and the lack of corroboration result in this court rejecting the defence theory.
[93] The evidence of Mr. Gulizia is also problematic. He obviously could not be cross-examined. His statement, in some respects raises more questions than it answers. This court has a concern about the weight that should be given to his evidence particularly in light of his denial of any separation from Mrs. Gulizia. The reasons why he would want to blame his former business colleague and friend are unclear and can only be speculative at this point. What is clear in this court’s view is that Mr. Gulizia would not have waited for payment on the June 2008 job. Mr. Tolton testified that there were only minor deficiencies on that job and they were repaired. Mr. Caramanna signed the contract for that job under the Durapave name not Nationwide Paving.
[94] Why would Mr. Gulizia wait for payment on the June job when the work was done, deficiencies repaired and the holdback paid out? I find that he was likely paid for the June work. I find that it would have been odd for him to have waited to be paid for all of his work on the June and November jobs when the work was done and there was nothing left to do in relation to the June 2008 job and the November 2008 job was completed subject to the deficiencies for which the holdback had been taken.
[95] Given my finding that he and Mr. Caramanna were partners at this point, something happened between them that created a rift. I do not know what that was but I find that the situation was not as black and white as described by Mr. Gulizia. Given the concerns about his evidence on its face and given the fact that his evidence cannot be tested by cross-examination I find that his evidence should be given very minimal weight.
Applying the Evidence and Findings to the Case Law on Fraud
[96] It is impossible to know whether Mr. Caramanna had the required actus reus to commit fraud. That is, this court has been unable to find that any dishonest act occurred because it is unclear exactly what transpired. Further, while the complainant, Money Mart, has clearly been deprived of the funds they reimbursed to Mrs. Gulizia, it is unclear whether Mrs. Gulizia was entitled to those funds based on the findings of this court. What is the deceit allegedly perpetrated by Mr. Caramanna in order to effect the deprivation? The Crown’s position is that Nationwide Paving was registered to ensure that Syndicat would make payments to Mr. Caramanna’s business; he could cash the cheques and make off with the funds before Mr. Gulizia’s company figured out what was happening.
[97] However, this court has found that there is evidence to support that Mr. Caramanna and Mr. Gulizia were partners. The court has found that it is not a realistic premise that experienced businessmen like Mr. Gulizia and Mr. Caramanna would undertake a paving job with no prospect of any profit. While I reject Mr. Caramanna’s evidence, I also reject that of Mrs. Gulizia that no payment was received on either the June or November 2008 jobs. I do not find, therefore, that the Crown is able to prove that there was any dishonest act perpetrated by Mr. Caramanna by some form of deceit, falsehood or other means. As indicated above, there is no ability for this court to ascertain with any precision what occurred between the Gulizias and Mr. Caramanna given the frailties in their evidence. Without such evidence, the Crown is unable to prove their case on the criminal burden of proof. I should add that a civil case would likely engage an entirely different result.
Applying the Evidence to W.D.
[98] This court has already rejected Mr. Caramanna’s evidence given its inconsistencies and the implausibility of his theory in the all of the circumstances.
[99] Further, for the reasons stated above, I do not accept the evidence of either Mr. or Mrs. Gulizia and am left in a reasonable doubt by their evidence as to a number of key elements in the November 2008 Sobey’s job. The only evidence I accept is that of Mr. Tolton, Mr. Winders and Ms. Novikov. However, their evidence does not assist with the guilt or innocence of this accused. Their evidence related in large part to uncontested facts.
[100] This court is unable to unravel what actually occurred in this case given the inconsistencies in the evidence. While clearly the business practices of Mr. Caramanna are questionable, so were those of Mr. Gulizia. While perhaps of concern to the Canada Revenue Agency and the taxpayers of Ontario, it cannot be of concern to this court. Mrs. Gulizia may well have received funds from the complainant to which she is not entitled. That as well, cannot be the concern of this court other than questioning her motives for retaining funds for which she has not done a proper accounting. She is not on trial here.
[101] In all the circumstances, the Crown has failed to meet its burden of proof and Mr. Caramanna shall be acquitted.
[102] I wish to thank the Crown in this case, Mr. De Chellis, for his professionalism and courtesy in dealing with Mr. Caramanna throughout.
Madam Justice C.A. Gilmore
Released: February 08, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Melchiorre Joseph Caramanna
REASONS FOR JUDGMENT
Madam Justice C.A. Gilmore
Released: February 08, 2016

