Court of Appeal for Ontario
Goudge, Armstrong and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Enofe
Appellant
Counsel:
R. Craig Bottomley, for the appellant
Andreea Baiasu, for the respondent
Heard and released orally: October 3, 2011
On appeal from the sentence imposed by Justice Sutherland of the Ontario Court of Justice on June 3, 2008.
ENDORSEMENT
1The appellant would fault the trial judge for failing to make sufficient inquiry as to the appellant’s ability to pay a restitution order. We do not agree. This was, after all, a joint submission and the trial judge was aware of the facts now relied on by the appellant.
2However in our view the trial judge gave insufficient weight to any prospect that the appellant, in these particular circumstances, would in future come to have the ability to repay $56,000. He was a very minor player in the fraud who appears to have received little personal benefit from it. He is an immigrant with no family here or abroad. He is a student in an area of study with very limited gainful employment prospects. In our view, taking these considerations together, it is unrealistic to think the appellant could ever discharge this order. It should also be remembered that if the bank thinks otherwise, civil proceedings are open to it.
3Leave granted. Appeal allowed. Restitution order set aside.
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”
“Paul Rouleau J.A.”
