



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wirkkunen, 2015 ONCA 140

DATE: 20150303

DOCKET: C56673

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kerry Wirkkunen

Applicant/Appellant

Joseph Di Luca and Erin Dann, for the appellant

Amy Alyea, for the respondent

Heard and released orally:  February 23, 2015

On appeal from the conviction entered on September 18,
    2012 and the sentence imposed on February 26, 2013 by Justice F. Bruce
    Fitzpatrick of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

In this fraud prosecution the only real issue was credibility.

[2]

The appellant admitted that she had cashed cheques made payable to
    herself over and above her own pay cheques and had electronically transferred
    sums of money from the company to her personal credit cards, all she says at
    the behest of the complainant, Walter Feletto, who wanted to get money out of
    his company undetected. She said that in each instance whether by cheque or
    electronic transfer she handed over the cash to Mr. Feletto, except for some
    amounts that he allowed her to keep.

[3]

Walter Feletto blanketly denied that he had asked the appellant to do
    this and further denied that she ever handed over cash to him.

[4]

As the trial judge recognized the case turned on credibility and as he
    noted in para. 9 of his reasons:

I turn now to my findings with respect to the central issue in
    this case, whether or not Ms. Wirkkunen committed a fraud or theft from Mr.
    Feletto and his businesses.  In this case, issues of credibility are clearly
    paramount. I am faced with completely contrary versions of what instructions
    were given to Ms. Wirkkunen in the course of completing her activities as
    the bookkeeper for ABP and BACI.

[5]

On her evidence, on occasion, the appellant would make out a cheque
    payable to herself.  Mr. Feletto would sign the cheque and the appellant would
    cash the cheque and return the cash to Mr. Feletto.  Mr. Feletto denied this
    ever happened. Howard Milhalus was called by the defence, as counsel put it in
    argument, he carried no brief for the appellant.  He bore a certain animus
    towards her.  However, in his evidence, he said that on two occasions, he had
    witnessed the appellant present cheques for signature to him (at that time
    Milhalus had signing authority) and because of the amounts of the cheques
    $7,500 and $10,000 he questioned Mr. Feletto about them and was told by Feletto
    that he knew all about it and instructed Milhalus to sign the cheques.

[6]

Further, on one of those occasions, Milhalus actually witnessed the
    appellant hand over the cash to Mr. Feletto and him peeling off a couple of
    bills and handing them back to her.  Milhalus testified that Mr. Feletto had
    asked him to do the same thing, write cheques to himself, cash them and return
    the cash to Mr. Feletto.  Milhalus refused to do so.

[7]

The trial judge accepted Milhalus evidence on this latter point and found
    him to be a credible witness.  He then went on to say that

I cant determine one way or the other if Mr. Feletto asked Ms.
    Wirkkunen to get cash out of his business by using a cheque, but to me, having
    been rebuffed by Mr. Milhalus, I do not accept that Mr. Feletto would
    continue to ask Ms. Wirkkunen to clandestinely remove money both electronically
    and by cheque.

[8]

There are a number of problems with this statement. The evidence of
    Milhalus that he had personally observed the appellant present cheques payable
    to herself that Feletto told him to sign and that on one occasion, he saw her
    hand over the proceeds to Feletto was critically important exculpatory evidence
    from a witness the trial judge found to be credible.

[9]

This was not a strong case for the Crown. The trial judge had said he
    could not determine one way or the other if Feletto asked the appellant to
    get cash out of his business using cheques.  Yet, nowhere in his reasons does
    he address this evidence. His failure to do so, in our view, on these facts
    constitutes a misapprehension of evidence which amounts to an error in law. The
    failure to address this important evidence impacts on the trial fairness and
    renders the verdict unsafe.  On this ground alone, the appeal must succeed.

[10]

In
    the circumstances, it is unnecessary for the court to address the other grounds
    of appeal raised.

[11]

The
    appeal is allowed. The convictions quashed and a new trial is ordered.

J.
    MacFarland J.A

M.
    Tulloch J.A.

G. Pardu
    J.A.


