Court of Appeal for Ontario
Before: Hoy, MacPherson and Tulloch JJ.A.
Her Majesty the Queen
Respondent
and
Shaine Robertson
Appellant
Shaine Robertson, acting in person
Dan Stein, appearing as duty counsel
Hannah Freeman, for the respondent
Heard: June 3, 2020 by video conference
On appeal from the sentence imposed by Justice Johanne Lafrance-Cardinal of the Superior Court of Justice, dated April 18, 2019.
Reasons for Decision
1Between September 30 and November 6, 2018, the appellant went on a drug-fuelled rampage in Cornwall, Ontario, which included breaking and entering and robbery of ten establishments, ranging from chip stands and food trucks to a convenience store to Pet Valu, a larger commercial establishment.
2He pled guilty to two counts of robbery, eight counts of breaking and entering, attempt break and enter, dangerous operation of a motor vehicle, failure to comply with a probation order, two counts of failure to comply with a recognizance, possession of a break-in instrument, and disguise with intent.
3Consistent with the joint submissions of the Crown and counsel for the appellant at the sentencing hearing as to the length of imprisonment, the sentencing judge imposed a global sentence of four and one-half years’ imprisonment. She also made orders under s. 738(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, which require the appellant to pay restitution in the total amount of $15,698.34 to some of the persons whose property he damaged.
4The appellant argues that the sentencing judge erred by failing to consider whether the appellant had the ability to make restitution before imposing orders under s. 738(1)(a) and that the orders under s. 738(1)(a) will likely impair his chances of rehabilitation. He submits that the restitution orders should be set aside.
5We agree.
6A restitution order forms part of a sentence. It is entitled to deference and an appellate court will interfere with the sentencing judge’s exercise of discretion only if there is an error in principle, or if the order is excessive or inadequate: R. v. Devgan (1999), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 28, leave to appeal refused, [1999] S.C.C.A. No. 518; R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 22.
7An order for compensation should be made with restraint and caution: Devgan, at para. 26, citing The Queen v. Zelensky, [1978] 2 S.C.R. 940.
8While the offender’s ability to make restitution is not a precondition to the making of a restitution order, it is an important factor that must be considered before a restitution order is imposed. A restitution order made by a sentencing judge survives any bankruptcy of the offender: Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 178(1)(a). This means it is there for life. A restitution order is not intended to undermine the offender’s prospects for rehabilitation. This is why courts must consider ability to pay before imposing such an order: Castro, at paras. 26-27; R. v. Popert, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It is not enough for the sentencing judge to merely refer to or be aware of an offender’s inability to pay. The sentencing judge must weigh and consider this: Biegus, at para. 22.
9The restitution orders were not part of the parties’ joint submission on sentence. The Crown handed up a table of the damages suffered by the various establishments, and in a single sentence asked for “stand-alone orders”.
10In response, counsel for the appellant at the sentencing hearing submitted:
Just with respect to the restitution I’ll ask – if the court is going to impose restitution, it would be 738 orders, given that he’s not going to be in any position to pay…any restitution for the next few years.
11While the sentencing judge’s reasons explain how she calculated the amount of the restitution orders (and she did so carefully), they do not contain any analysis of the appellant’s ability to make restitution or of the impact of the orders on his prospects for rehabilitation. During the appellant’s counsel’s sentencing submissions, the sentencing judge inquired whether the appellant had “ever worked”. Respectfully, however, she did not conduct a meaningful inquiry into the appellant’s ability to pay and the impact of the restitution orders on the appellant’s prospects for rehabilitation. In failing to do so, she erred in principle.
12The sentencing judge was faced with an offender who, at the time of sentencing, was 32 years of age. He has a grade 12 education. The appellant reported that he had held a job in the restaurant industry for a decade “steady” in his twenties. The appellant had also worked out west in the pipelines. Whatever his employment history, at the time of the offences, the appellant was unemployed and seriously addicted to cocaine and opiates.
13The aggregate amount of the restitution orders is significant to someone in the appellant’s circumstances. On release, the appellant will continue to have to battle his addictions as he seeks to become a productive member of society and provide support to his young daughter, and he will do so without the benefit of higher education and hampered by a criminal record.
14As the sentencing judge noted, the appellant had a lengthy criminal record for a person of his age. However, before these offences, the longest period the appellant had served was 119 days of pre-trial custody. The period in custody for these offences will hopefully have provided the appellant with the ability to obtain treatment for his addictions and put him on the road to rehabilitation.
15In our view, the restitution orders made undermine the prospects for that rehabilitation.
16Accordingly, the appeal is allowed and the restitution orders are set aside.
“Alexandra Hoy J.A.”
“J.C. MacPherson J.A.”
“M. Tulloch J.A.”
