Court File and Parties
COURT OF APPEAL FOR ONTARIO
MacPHERSON, CRONK and GILLESE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)
and
VICTORIA SEARS
(Applicant/Appellant)
Christopher Hicks, for the applicant/appellant
Amanda Rubaszek, for the respondent
Heard: April 10, 2007
On appeal from the sentence imposed by Justice John D. Takach of the Ontario Court of Justice on October 20, 2004.
APPEAL BOOK ENDORSEMENT
Appeal Book Endorsement
1The parties are agreed that the restitution order made by the sentencing judge cannot stand in the form made because the amount of the order exceeded the value of the relevant complainant’s loss, contrary to s. 738(1)(a) of the Criminal Code.
2There is also no dispute that the quantum of the restitution order should be reduced at least to the amount of $59,496.99. The only issue between the parties is whether the amount of the restitution order should be further reduced, as the appellant contends, to the sum of $43,240. Thus, the amount in issue is $16,256.99.
3The appellant asserts that the amount in issue relates to transactions where the goods in question were actually delivered to the customers in issue. The Crown adduced no evidence to establish that this was not the case.
4In these circumstances, the quantum of the restitution order should be reduced to the sum of $43,240. The Crown has not met its burden of demonstrating that the additional $16,256.99 relates to the offences for which the appellant was convicted. See R. v. Devgan (1999), 1999 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.) and R. v. Mohamad (2004), 2004 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.).
Disposition
5Accordingly, leave to appeal sentence is granted, the appeal is allowed, and the amount of the restitution order pertaining to Global Payments is reduced to the sum of $43,240. In all other respects, the sentence imposed remains in effect.