Court of Appeal for Ontario

Date: February 14, 2019 Docket: C65884 Panel: MacPherson, Sharpe and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

Roy Porter Appellant

Counsel

For the Appellant: Scott Hutchison as duty counsel and Roy Porter in person

For the Respondent: Luke Schwalm

Heard: February 12, 2019

Appeal Information

On appeal from the conviction entered on April 20, 2018 and the sentence imposed on August 28, 2018 by Justice P.H. Marjoh Agro of the Ontario Court of Justice.

Appeal Book Endorsement

[1] We see no merit in the conviction appeal. The information was amended during the trial and there is nothing before us to support the submission that the amendment was improper.

[2] We agree that the trial judge appears to have treated the appellant's lack of remorse as an aggravating factor. However, we are not persuaded that we should interfere with the resulting sentence of one year imprisonment. As held in R. v. Lacasse, 2015 SCC 64, it is open to an appellate court to uphold a fit sentence despite an error of this nature. The appellant abused a position of trust and took advantage of his very vulnerable cousin. The fraud was planned and carried out over a lengthy period. A sentence of one year is entirely appropriate. See R. v. Mathur, 2017 ONCA 403.

[3] In our view, the trial judge did err by only giving the appellant six months to pay the fine in lieu of forfeiture. We alter that term of the sentence to give him two years.

[4] Finally, it is conceded by the Crown that the victim fine surcharge must be set aside.

[5] Sentence appeal allowed but only to the extent ordered above. Conviction appeal dismissed.