



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Piccinini, 2018 ONCA 433

DATE: 20180507

DOCKET: C64076

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emiliana Piccinini

Appellant

Carolyne Kerr, for the appellant

Molly Flanagan, for the respondent

Heard: May 3, 2018

On appeal from the conviction entered on April 26, 2017
    and the sentence imposed on July 31, 2017 by Justice Tamarin M. Dunnet of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Emiliana Piccinini was convicted of one count of fraud over $5,000.  A
    charge of theft over $5,000 was stayed pursuant to the principles established
    in
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The appellant was sentenced
    to one year in custody.  She appeals both her conviction and sentence.  At the
    conclusion of the hearing, we dismissed the appeals with reasons to follow.  We
    now provide those reasons.

[2]

The appellant worked for a civil litigation lawyer, essentially as a
    bookkeeper.  Prior to joining the lawyers practice in 2005, the appellant had
    worked as a paralegal.  During the course of her employment, the appellant was
    to be paid bi-weekly.

[3]

On February 25, 2014, the lawyer terminated the appellants employment
    after his accountant advised him that the appellant had received more
    paycheques than she was entitled to.  These overpayments had occurred in 2011,
    2012 and 2013.

[4]

The appellant contended that these additional paycheques were, in fact,
    payments due to her by the lawyer for files that she had brought into his
    practice from the time that she worked as a paralegal.  She contended that the
    lawyer had agreed to pay her 10% of monies that he earned from these files. 
    The lawyer denied that there was any such arrangement.

[5]

The trial proceeded over two days.  The trial judge gave lengthy and
    detailed reasons for finding the appellant guilty of the offence. The trial
    judge found that the appellants evidence was internally inconsistent, unsupported
    by any independent evidence, unreliable, and defied common sense  she rejected
    it completely. On the other hand, she found the lawyers evidence internally
    consistent, supported by common sense and by bank records, and was unshaken on
    cross-examination.

The conviction appeal

[6]

The appellant contends that the trial judge erred in her application of
    the test set out in
R. v. W. (D.),
[1991] 1 S.C.R. 742.  In particular,
    the appellant says that the trial judge improperly compared the evidence of the
    lawyer to the appellant.  The appellant also contends that the trial judge
    reversed the onus of proof by requiring the appellant to explain contradictions
    in the evidence.

[7]

We do not see any merit in these contentions.  The trial judges reasons
    make it clear that she looked at the whole of the evidence and tested it
    against the standard of proof of beyond a reasonable doubt.  There was a direct
    contradiction between what the lawyer said the arrangements were for the appellants
    employment and what the appellant said that they were.  It was inevitable, in
    those circumstances, that the trial judge would have to contrast the evidence
    of the two witnesses.

[8]

The trial judge did not require that the appellant produce evidence. 
    Rather, she found there was no independent evidence confirming the appellants evidence.
    A trial judge who points out that evidence, that might have assisted one side
    or the other, is lacking is not reversing the onus of proof.  She is simply
    acknowledging the fact that there is an absence of confirmatory evidence, one
    way or the other.  The trial judge was correct in her approach.  The onus of
    proof was not shifted from the Crown to the appellant as argued.

[9]

Further, it is not necessary for a trial judge to recount the test set
    out in
R. v. W. (D.)
as if it were some form of magical incantation. 
    This was an experienced trial judge who would be well familiar with the
    principles enunciated in that case.  Indeed, she referred to the case
    specifically.  A fair reading of her reasons does not reveal any failure to
    appreciate the approach to be taken.

[10]

We
    also do not accept that there were any misapprehensions of the evidence by the
    trial judge.  Nothing alleged by the appellant rises to the level of any
    misapprehension that relates to material parts of the evidence, or plays an
    essential part of the reasoning process, or amounts to a miscarriage of
    justice:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    para. 93.  The fact that the appellant would have had the trial judge draw
    inferences from the evidence different from the ones that she did draw, does
    not constitute a misapprehension of the evidence.

[11]

The
    trial judges reasons when read as a whole demonstrate that she correctly and
    carefully reviewed the entirety of the evidence. She was not required  as the
    appellant seems to suggest  to carefully review each piece of evidence and
    explain its application: see
R. v. O.M.
,
2014 ONCA 503, at
    para. 28.

The sentence appeal

[12]

Finally,
    the appellant contends that the sentence of one year in custody was harsh and
    unfair.  She contends that a conditional sentence ought to have been imposed.

[13]

Sentencing
    is a profoundly subjective process.  An appellate court should only interfere
    where the sentence is clearly unreasonable (
R. v. Shropshire
, [1995] 4
    S.C.R. 227, at para. 46) or demonstrably unfit (
R. v. Lacasse
, [2015]
    3 S.C.R. 1089, at para. 44).  The trial judge again gave detailed reasons for
    her conclusion regarding sentence.  In particular, she pointed out that this
    offence involved a breach of trust, that almost $50,000 was taken; that the
    offence occurred over more than three years, and that the appellant was a
    licenced paralegal.  The trial judge also noted that the appellant had expressed
    limited remorse for her actions.

[14]

In
    terms of mitigating circumstances, the trial judge specifically considered the
    appellants brothers and fathers health.  She concluded they did not amount
    to exceptional circumstances as she was entitled to. The trial judges consideration
    of the amount of money left in the law firms account is not an error
    justifying appellate intervention.  The fresh evidence, admitted on consent, regarding
    the brothers further health issues, does not materially alter the analysis.

[15]

In
    the end result, there is no principled basis by which this court could
    interfere with the sentence imposed.

Conclusion

[16]

The
    appeal from conviction is dismissed.  While leave to appeal sentence is
    granted, that appeal is also dismissed.

H.S. LaForme
    J.A.

David Watt
    J.A.

I.V.B.
    Nordheimer J.A.


