



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fortunato, 2017 ONCA 328

DATE: 20170424

DOCKET: C60649

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicky Fortunato

Appellant

Gregory Lafontaine, for the appellant

David Friesen, for the respondent

Heard: April 21, 2017

On appeal from the convictions entered on March 20, 2015
    by Justice Stephen Bale of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant Nicky Fortunato appeals from his convictions by Bale J. of
    the Superior Court of Justice for two counts of fraud over $5,000 and two
    counts of uttering a forged document. He received a global sentence of three
    years imprisonment for these offences.

[2]

During a two day period in October 2012, the appellant cashed two stolen
    bank drafts totalling $847,000 at two Ontario casinos. He cashed the first
    draft, worth $365,000, at Fallsview casino on October 5, 2012, just a few hours
    after the drafts had been stolen from the Bank of Montreal. He cashed the
    second draft, worth $482,000, at Casino Rama the next day.

[3]

The appellant did not testify, relying instead on his statement to
    police, which was tendered as part of the Crown case. In his statements, he
    claimed to have received the drafts from a gambler he knew only as Pasquale
    as partial repayment of a loan. The appellant conceded at trial that the bank
    drafts were stolen, but claimed that he did not know this at the time he cashed
    them.

[4]

The trial judge convicted the appellant. He first considered the
    doctrine of recent possession. He found that the appellants explanation for
    his possession of the bank drafts was incapable of belief and concluded that
    the appellant knew that the drafts had been stolen. He also found that the
    appellants statement to the police was a fabrication. In his view, it was
    inherently improbable that the appellant had loaned anyone close to $1 million,
    especially someone that he barely knew, considering his income, his assets, and
    his current financial situation. He determined that the police statement was
    offered for the purpose of concealing his i
nvolvement
    in the fraud and thus did not raise a reasonable doubt as to the appellants
    guilt. Having rejected the veracity of the appellants police statement and
    having found no other reasonable explanation for the appellants possession of
    the bank drafts, the trial judge found the appellant guilty beyond a reasonable
    doubt on all four counts charged.

[5]

The appellant contends that the trial
    judge made three legal errors in reaching his decision.

[6]

First, the appellant submits that the
    trial judge erred by rejecting the appellants defence of honest but mistaken
    belief as it pertained to the
mens rea
of the alleged offences.

[7]

We do not accept this submission. In
    our view, the trial judge correctly stated the mental element for the offences
    and found that the appellant had it.

[8]

Second, the appellant contends that the
    trial judge misapprehended the doctrine of recent possession and, therefore,
    misapplied it to convict him.

[9]

We disagree. The trial judge correctly
    stated the doctrine and was entitled to find that the appellant knew that the
    bank drafts were stolen after rejecting the appellants explanation.

[10]

Third, the appellant asserts that the
    trial judge erred by relying on the appellants exculpatory statement to the
    police in the absence of any independent evidence of concoction.

[11]

We disagree. The trial judge
    specifically disavowed reliance on this category of evidence in support of his
    findings of guilt.

[12]

The appeal is dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

David Brown J.A.


