DATE: 20050418

DOCKET: C40336

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ONKAR TRAVELS INC. and RAJINDERPAL SINGH SIDHU (Appellants)

BEFORE:

ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL:

Mara B. Greene

for the appellant

Lisa Csele

for the respondent

HEARD & ENDORSED:

April 15, 2005

On appeal from sentence imposed by Justice S. Chapnick of the Superior Court of Justice dated July 18, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] Counsel for the appellant raised three issues.

[2] First, the trial judge erred in treating this case as a breach of trust. The trial judge recognized that this was not a classic breach of trust. As she noted, however, the GST funds were deemed by law to be trust funds. We see no error in principle in her treatment of this issue.

[3] Second, counsel for the appellant at trial made several submissions concerning the appellant’s financial circumstances. Crown counsel did not challenge these submissions and the trial judge did not indicate at the time that she had any concerns with them. However, in her reasons, the trial judge rejected those submissions. In our view, given the significance of these submissions, in fairness, the trial judge should have indicated that she did not accept those submissions so that the appellant could consider whether he should call evidence to support them.

[4] Third, we are also concerned that the trial judge misapprehended some of the evidence concerning the management of the business.

[5] While these errors in principle permit us to consider the fitness of the sentence without deference to the trial judge, we are satisfied that this is not a case for a conditional sentence.

[6] This was a massive fraud on the public. The appellant failed to remit three-quarter of a million dollars in GST funds he had collected. This type of fraud would ordinarily call for a penitentiary sentence. The many mitigating factors make this a proper case for a reformatory sentence but the objective of general deterrence would not be met in the circumstances of this case by a conditional sentence.

[7] Accordingly, the appeal is dismissed.