



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hromek, 2016 ONCA 109

DATE: 20160205

DOCKET: C57778

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jana Hromek

Appellant

Robert M. Isles, for the appellant

David Friesen, for the respondent

Heard: February 1, 2016

On appeal from the conviction entered on May 10, 2013 and
    the sentence imposed on September 25, 2013 by Justice Alexander Sosna of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals her convictions of fraud and uttering after a
    trial before a judge sitting without a jury. She also seeks leave to appeal
    sentence.

[2]

On the appeal from conviction, the appellant does not advance any ground
    of appeal that asserts any error of law on the part of the trial judge, or for
    that matter, any error of mixed fact and law. Rather, the appellants complaint
    is with the findings of fact made by the trial judge.

[3]

The evidence before the trial judge about the relevant transactions was
    conflicting. It was for the trial judge to determine and to say whom he
    believed and to what extent, if at all, he found their evidence reliable. The
    trial judge reviewed the salient features of the evidence at some length. He
    made his findings of fact based on that evidence and drew reasonable inferences
    from it. He explained his findings of fact, including why he believed the
    witnesses called by the Crown and rejected the appellants testimony and that
    of her husband and son.

[4]

The findings of fact made by the trial judge are entitled to deference
    in this court. They do not reveal any misapprehension of evidence or any
    palpable and overriding error. The trial judge properly instructed himself on
    the essential elements of the offences charged and the burden and standard of
    proof. His conclusions are firmly grounded in the evidence adduced at trial and
    untainted by legal error.

[5]

The appeal from conviction is dismissed.

[6]

As to sentence, the appellant has served the carceral portion of the sentence
    imposed at trial. In his factum, counsel seeks to have the term of probation
    imposed by the trial judge deleted. He advances no reasons in support of the
    claim.

[7]

We see no reason to delete the probation order, to vary any of its
    optional conditions or to reduce its term. We also note that the appellant did
    not apply to the sentencing judge under s. 732.2(3) of the
Criminal Code
for the relief she now seeks. While we cannot say that the failure to do so
    disentitles an appellant, as a matter of law, to the same relief on an appeal
    from sentence in this court, the failure to apply under s. 732.2(3) is a factor
    this court will consider on the appeal from sentence.

[8]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed.

Eileen
    E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


