COURT OF APPEAL FOR ONTARIO
Gillese, Watt and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Matthew Joseph Wa a.k.a. Kaamin Ming Wa
Appellant
Melanie Webb, for the appellant
Alex Hrybinsky, for the respondent
Heard: February 18, 2015
On appeal from the sentence imposed on August 28, 2006 by Justice William B. Horkins of the Ontario Court of Justice.
1Matthew Wa (the “appellant”) worked as a senior property accountant for the Salvation Army. His responsibilities included reviewing invoices received by the Salvation Army in relation to ongoing building projects to insure that the invoices were proper and ought to be paid.
2Between 2003 and 2005, the appellant defrauded the Salvation Army of over $2.3 million. He did so by creating fictitious invoices in the names of two separate companies in relation to the Salvation Army’s ongoing building projects. After processing the invoices and forwarding them for payment, he intercepted the cheques generated as payment and deposited them into the bank accounts of the companies that he had created.
3Mr. Wa admitted the fraud and cooperated with investigators, who recovered about $1 million. He was very vague as to what had happened to the remaining $1.3 million.
4On August 28, 2006, the appellant entered a guilty plea to the charge of fraud over $5,000 and was sentenced immediately thereafter. The sentencing judge accepted counsels’ joint submission and sentenced the appellant to two years’ imprisonment and imposed two restitution orders totalling approximately $1.3 million (the “Orders”).
5At the time of sentencing, the appellant had two prior convictions, one for uttering counterfeit money and the other for attempted fraud under $5,000.
6The appellant has now served his prison sentence. He seeks leave to appeal sentence and asks that the Orders be set aside or reduced because he cannot afford to pay them. Although he has obtained employment in the accounting field since his release from prison, he says that he cannot advance his career because of his criminal record. He says his inability to pay the Orders is a barrier to his application for a pardon (what is now termed a “record suspension”).
7The appellant also seeks to introduce fresh evidence to show that at the time of sentencing, he simply accepted the imposition of the Orders because their amounts were accurate.
The Issues
The Issues
8This sentence appeal raises two issues:
Should the fresh evidence be admitted?
Should the restitution orders be set aside?
The Fresh Evidence
The Fresh Evidence
9It is not apparent that the proposed fresh evidence meets the test for admission because, among other things, it is difficult to see how it meets the due diligence requirement. In any event, however, as I explain below, its admission would not affect the result of the sentence appeal.
The Restitution Orders
The Restitution Orders
10I see no basis on which to interfere with the Orders.
11One of the primary purposes of restitution orders is to deprive criminals of the fruits of their crime. A restitution order is part of the total sentence imposed and is entitled to deference. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court shall intervene only if the sentence is demonstrably unfit. See R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 91.
12When determining whether to impose a restitution order, the sentencing judge must consider the offender’s ability to pay. However, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be imposed even if there does not appear to be any likelihood of repayment: R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 28. As the sentencing judge found, the fraud in this case was a clear breach of trust, which was particularly odious given the charitable nature of the work performed by the victim.
13Moreover, when assessing ability to pay a restitution order, the court may consider what disclosure has been made respecting where the money is or has gone. In fraud cases, bald assertions by offenders that they have no ability to make restitution are entitled to little weight when the offender has not explained where all of the stolen assets have gone: Castro, at para. 34. This consideration applies in the present case. Despite being an accountant, the appellant has been vague about what happened to over $1 million of the stolen money, and he has failed to provide detailed records or an explanation of the money’s use.
14Further, I attach little weight to the appellant’s claim that he did not appreciate that the Orders would result in him being excluded from the accounting field. The sentencing judge expressly referred to the appellant’s reduced career prospects as a mitigating factor. That factor was also expressly referred to by defence counsel and agreed to by the Crown at the time of sentencing. Furthermore, and in any event, the appellant has been able to obtain employment in the accounting field since his release from prison.
15The fresh evidence does not show that this is an appropriate case for vacating the Orders. In the eight years since sentencing, the appellant has made a single payment on the Orders: $500 on April 1, 2014, several months after being given an extension of time to file this appeal. During that same time, he has made large discretionary purchases, including the purchase of two new vehicles, almost $1,000 a year for dog grooming and about $1,500 a year for cleaning services. He has also saved $50,000 in RRSPs, although he recently chose to redeem approximately $20,000 of that amount so that he would have cash on hand in the event of an emergency, now that his wife is on maternity leave. The appellant acknowledged that in making his investments in RRSPs, he had chosen to allocate his income to personal expenses rather than towards the payment of the Orders.
16The money that the appellant has spent on his discretionary purchases could have been put towards restitution. Moreover, as he admits, he could have made payments on the Orders despite those discretionary expenditures but he has chosen not to. Consequently, I put little stock in the appellant’s assertion that if he obtained a record suspension and better employment, he might be enabled to make a significant contribution towards restitution.
17The appellant has benefitted from the Orders, as they factored into his relatively lenient custodial sentence. I see no basis on which to release him from those Orders, particularly when he has made little real effort to repay them, despite having had the time and money to do so and having given no credible explanation for where the money went.
DISPOSITION
Disposition
18Accordingly, I would grant leave to appeal sentence but I would dismiss the sentence appeal.
Released: February 20, 2015 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree. David Watt J.A.”
“I agree. D.M. Brown J.A.”
