Court of Appeal for Ontario

Date: 2018-11-21

Docket: C64974

Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Kevin Wagar Appellant

Counsel

Christen Cole, for the appellant

Lorna Bolton, for the respondent

Heard: November 5, 2018

On appeal from sentence entered by Justice Wolfram Tausendfreund of the Superior Court of Justice, on August 22, 2016.

Reasons for Decision

[1] On November 5, 2018, this court heard and gave oral reasons for dismissing the appellant's conviction appeal. We then heard his sentence appeal and reserved our decision. These are our reasons on the sentence appeal.

[2] The appellant was convicted of two counts of fraud over $5,000. He was sentenced to 5.5 years in custody and a restitution order in the amount of the total loss to the victims: $799,600. He raises three grounds of appeal in relation to the custodial term and one ground of appeal in relation to the amount of restitution.

[3] At his guilty plea, the appellant acknowledged that as their financial adviser, he defrauded three people, including a disabled man and an elderly woman, of almost $800,000. As emphasized by the trial judge, the appellant stood in a position of trust in relation to his victims. He was their friend and financial advisor and they trusted him to invest their funds. Instead, he used all of those funds to his own benefit. None of the funds were ever invested in the way that the appellant led the victims to believe the funds would be invested. The victims' money was used to pay the appellant's tax debt, utility bills, loans, and credit card debts.

[4] The trial judge found that the offences were motivated by pure greed and that the victim impact was extreme. One of the victims had been involved in a very serious motor vehicle collision that had left him hospitalized for months and with permanent injury. The funds that he and his wife entrusted to the appellant were the entirety of the insurance settlement arising from the accident. The fraud left the victim unable to afford his ongoing physiotherapy, leaving him in considerable physical pain.

[5] The other victim was an 81 year old widow. She and her husband had become friends with the appellant over time and she trusted the appellant with her money after the loss of her husband. One of her sons died shortly after and another developed a life altering illness that required him to stop work. When the victim was defrauded of her life savings, she was unable to provide her ailing son with necessary financial assistance. By the time of sentencing, she was also in ill health.

[6] The betrayal of the victims is palpable.

Grounds of Appeal Against Custodial Term

[7] The appellant raises three grounds of appeal against the custodial term imposed.

First Ground: Demonstrable Unfitness

[8] First, he argues that the sentence was demonstrably unfit and that he should have received a two-year sentence. We disagree.

[9] We start by noting that his trial counsel acknowledged that the correct range of sentence was two to five years in custody, meaning that the trial judge was just six months over what trial counsel acknowledged was the top end of the range. The trial Crown submitted the correct range was five to seven years.

[10] We see no reason to interfere with the trial judge's exercise of discretion in imposing a 5.5 year sentence. The sentence is neither manifestly excessive nor demonstrably unfit. The appellant exploited highly vulnerable victims, the offences involved significant breaches of trust and large sums of money, the offences were committed over a lengthy period of time and motivated by greed. The devastating victim impact was clear and the pre-sentence report included few redeeming features.

[11] In these circumstances, we see no basis upon which to interfere with the sentence imposed.

Second Ground: Mental Illness as Mitigating Factor

[12] Second, the appellant maintains that the trial judge erred in failing to treat his mental illness as a factor in mitigation of sentence. There is no support in the record for the fact that the appellant was mentally ill at the time that the offences were committed: November 2010 to February 2015. The pre-sentence report contained the sole reference to the appellant's mental illness, the author commenting that the appellant has had "some contact with the psychiatric community". The author noted that the appellant's most recent psychiatric evaluation was completed on April 28, 2016. The author of the pre-sentence report quoted from the psychiatric report as follows:

Our overall history and today's assessment was limited by questionable reliability of information provided by the patient, however with a high degree of certainty we can confirm Bipolar Spectrum Disorder diagnosis.

[13] The appellant maintains that he should receive a reduction in sentence for this potential diagnosis. We disagree. Even if he suffers from a psychiatric condition, there is no support for the suggestion that he suffered from it at the time of the offences or that the condition impacted his involvement in the offences. The onus was on the appellant to pursue this matter and establish that fact if he wished to use it as a mitigating factor.

Third Ground: Remand into Custody

[14] Third, the appellant argues that he should receive a reduction in sentence because the trial judge incorrectly exercised his jurisdiction to remand him into custody after the finding of guilt, but before sentencing. He relies upon R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 in support of that proposition. The appellant says that the trial judge erred by failing to require the Crown to show cause as to why the appellant's form of release should be revoked. The trial judge is also said to have erred by failing to give the appellant the chance to make submissions before remanding him into custody.

[15] Although we have serious concerns about the fact that the appellant was not asked for submissions on whether he should be remanded in custody, we find that nothing turns on this ground of appeal.

[16] The trial judge clearly had cause to revoke bail. Between the finding of guilt and the return date, the appellant engaged in very concerning conduct. That conduct was discussed in court on the day that the appellant was remanded into custody. It included the fact that he had posted on Facebook that he was very angry with a number of people, including his ex-wife, Crown counsel and his former counsel. He threatened on Facebook that no one who "fucked me over will get off". Accordingly, this is not a case where the appellant was remanded into custody in the absence of serious concerns about compliance with bail and public safety. We also note that once the appellant retained new counsel, he never sought bail. Moreover, he received enhanced credit of 150 days for 86 days in pre-trial custody, exceeding the 1.5:1 ratio. We do not give effect to this ground of appeal.

Ground of Appeal Against Restitution

[17] Finally, the appellant takes issue with the full amount of restitution imposed. It is said that the trial judge failed to take into account the appellant's ability to pay and, in fact, acknowledged that it was likely that the funds were "beyond the reach of these victims forever". The appellant maintains that the trial judge erred by imposing full restitution without any information regarding the realistic likelihood of payment. We disagree.

[18] We note that there was an exchange between the appellant's trial counsel and the trial judge on this very point. The trial judge asked counsel to articulate his position on restitution, to which counsel responded: "I think you should order it" and that "Mr. Wagar agrees." While counsel did not know if the appellant would pay, he said that it was the appellant's intention to do so. In these circumstances, it was open to the trial judge to impose the order.

[19] Moreover, in frauds involving breaches of trust, this court has said that the "paramount consideration is the claims of the victims" and that ability to pay should not be a "predominant factor". Indeed, in circumstances like these, restitution orders can be made even where there does not appear to be a likelihood that the appellant will pay: R. v. Castro, 2010 ONCA 718, 261 C.C.C. (3d) 304, at para. 28.

Disposition

[20] We would grant leave to appeal the sentence, but dismiss the sentence appeal.

K. Feldman J.A. L.B. Roberts J.A. Fairburn J.A.