R. v. Stirling, 2016 ONCJ 691

HARRIS J.

Court File and Parties

Ontario Court of Justice

Date: November 14, 2016

Court File No.: Halton 14-3141

Between:

Her Majesty the Queen

— and —

Douglas Stirling

Before: Justice D.A. Harris

Heard on: March 22, June 2, August 10 and August 29, 2016

Reasons for Sentence released on: November 14, 2016

Counsel:

• Jeremy Tatum & Andrea Camilletti, counsel for the Crown
• Riaz Timol, counsel for the accused Douglas Stirling

Introduction

1Douglas Stirling pled guilty to defrauding the Oakville Minor Baseball Association of $468,166.66 between January 2, 2007 and July 17, 2013.

2This is an indictable offence.

3He is before me today to be sentenced.

4Crown counsel suggested that I should sentence him to imprisonment for two to three years. She also requested:

1. a restitution order,
2. a fine instead of forfeiture, and
3. a DNA order.

5Counsel for Mr. Stirling suggested that I impose a conditional sentence of imprisonment for two years less one day, followed by probation for three years.

6He agreed that a restitution order was appropriate but disagreed as to the amount.

7He was opposed to the fine instead of forfeiture.

8He took no position with respect to the DNA order.

9I find that the appropriate sentence here is a conditional sentence of imprisonment for two years less one day, followed by probation for three years. I will also be ordering restitution, a fine instead of forfeiture and the taking of DNA.

10My reasons for this are set out under the following headings:

1. The law regarding conditional sentences of imprisonment,
2. The fundamental purpose and principles of sentencing,
3. The facts underlying the offence,
4. The impact on the victims,
5. Restitution,
6. The background of Mr. Stirling,
7. Fine instead of forfeiture, and
8. Analysis.

1. CONDITIONAL SENTENCE OF IMPRISONMENT

11The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

12The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

13The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

14Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

15The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

16In Mr. Stirling's case, the first four prerequisite criteria have been satisfied.

17His offence was not excluded pursuant to section 742.1.

18It is not punishable by a minimum term of imprisonment.

19I am satisfied that I should impose a sentence of imprisonment for less than two years. Imprisonment for between 18 and 21 months would have been appropriate.

20Finally, I find that Mr. Stirling serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has not been in any further trouble since being charged. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

21That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

2. FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

22The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

23The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

24The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

25Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

26He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

27He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

28Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

29Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

30The amount taken here did not exceed $1 million. If it had, that too would be an aggravating circumstance (see section 380.1(1)(a)).

31I do not, however, really need the Criminal Code to tell me these things. Common sense and numerous appellate decisions have all made it clear that breaches of trust are serious offences usually warranting jail sentences. When those breaches of trust continue over a six year period and result in the embezzlement of approximately $500,000, the offence is a very serious one, warranting a very serious sentence.

32The Ontario Court of Appeal has consistently affirmed that in cases of large scale fraud committed by persons in a position of trust, general deterrence and denunciation are the dominant sentencing principles.

33Mitigating factors and rehabilitation become secondary considerations.

34In R. v. Gray, Carthy J.A. also stated that:

There are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from sentences given to others.

35In R. v. Wismayer, Rosenberg J.A. wrote:

General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for those offences that are likely to be affected by a general deterrent effect. Large scale well-planned fraud by persons in positions of trust, such as the accused in R. v. Pierce, would seem to be one of those offences. Even then, however, I would not want to lay down as a rule that a conditional sentence is never or even rarely available. Each case will have to be determined on its own merits.

36In R. v. Pierce, Finlayson J.A. wrote:

I would, however, refuse the application to permit the appellant to serve the sentence in the community. The abuse of a position of trust or authority in relation to a victim is an express aggravating circumstance set out in the sentencing guidelines under s. 718.2. This factor has traditionally drawn a severe custodial term even with first offenders. I do not believe that this court should exercise its discretion in favour of having the appellant serve her sentence in the community where, as here, the trial judge has clearly stated his concerns as to how a non-custodial term would be viewed by the community. Despite the passage of s. 742.1, the principles of general deterrence and public denunciation require a custodial term in these circumstances.

37Clearly then, denunciation and deterrence are the most important sentencing objectives in this case.

38I must however also consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

39I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

40The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

41The Supreme Court also stated that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

42I also note that the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

43I also note that:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

44I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

45I have also considered the fact that Parliament has since amended the Criminal Code such that a conditional sentence of imprisonment is no longer permitted for someone who commits the offence of fraud over $5,000. I should view this amendment as a reflection of Parliament's intention with respect to such offences.

46The maximum sentence here is imprisonment for 14 years.

3. THE OFFENCE

47The Oakville Minor Baseball Association is a non-profit organization providing house league, select and rep baseball in Oakville. Mr. Stirling was involved with the Association for many years as a parent, coach and long-time member of the Board of Directors. Between 2007 and 2013, he was the Treasurer, responsible for keeping full and accurate accounts of all receipts and disbursements in proper books of account and depositing all moneys or investments into the Associations accounts and reporting to the Board of Directors.

48He held signing authority with respect to the bank accounts at the Canadian Imperial Bank of Commerce. All cheques were required to have two signatures. The subsequent investigation revealed however that the majority of cheques drawn on these accounts contained only Mr. Stirling's signature.

49In 2013, Mr. Stirling resigned suddenly, effective immediately.

50Later his lawyer contacted the President of the Association and informed him that Mr. Stirling had misappropriated $200,000.

51This led to a police investigation which established that Mr. Stirling had misappropriated $468,166.66 from the Association. In addition there was $65,000 in unexplained cash deposits to Mr. Stirling's personal accounts. This money was returned to the Association's Canadian Imperial Bank of Commerce account.

52When arrested, Mr. Stirling admitted taking the money although he questioned the amount.

53During his guilty plea, he did agree that the amount taken was $468,166.66.

54In the Pre-Sentence Report he indicated that he was first able to take money because the President signed many blank cheques for Mr. Stirling to use as Treasurer to pay the bills of the Association. The position of President changed three times during his tenure as Treasurer. By the time that the third President was in place, Mr. Stirling was taking cheques to the bank with only his signature because the third President did not have signing authority.

4. VICTIM IMPACT

55I was provided with a Victim Impact Statement which the President of the Oakville Minor Baseball Association read to me in court. The following are some of the pertinent comments.

56These actions wreaked havoc on the Association. We had no idea how we were going to clean up the financial mess. The financial information we had from previous years was fictitious and we could not properly forecast our finances.

57We had to determine how we would pay our bills. We had to convince others that we would pay our bills. We had to convince our parents that we would survive. Community sport is based on trust and that trust was broken here.

58We have become known for fraud and stealing money as much as we are for baseball.

59The position of treasurer has become toxic in the Association making it necessary to hire paid bookkeepers and accountants. Further every Director was placed under a cloud of suspicion.

60Many players and even some teams withdrew from baseball as a result of this.

61Baseball is supposed to be an escape from every-day life. Stealing this money destroyed everything that was right about community baseball. Douglas Stirling let the families and kids of the Oakville Minor Baseball Association down.

5. RESTITUTION

62Mr. Stirling has repaid $100,000 to the Association during these proceedings. This money came from his mother and his sister.

63I was also informed that the Association spoke with the Canadian Imperial Bank of Commerce about the issue of cheques being cleared with only one signature. No legal proceedings were commenced. No admission of wrongdoing was made by the bank. The Canadian Imperial Bank of Commerce did however donate $180,000 to the Association.

64I am satisfied that the only reasonable inference to be drawn by me based on the information before me is that this donation was motivated at least in part by Mr. Stirling's expropriation of funds held by the bank. Accordingly I am also satisfied that this sum should be treated by me as partial restitution for the loss caused to the Association by Mr. Stirling.

6. BACKGROUND OF MR. STIRLING

65I received a Pre-Sentence Report, four reference letters and several certificates confirming volunteer work done by Mr. Stirling during the recent Pan Am games. These provided me with the following information.

66Mr. Stirling is now 66 years of age.

67He was born in Toronto and raised in Oakville. He and his siblings were very fortunate and very well taken care of by their parents.

68He completed high school in Oakville after six years of study. He attended Sheridan College for three years taking computer science.

69He then began work as a "cost accountant" with a metals company for eight years.

70This was followed by several years in which he worked as a consultant.

71In 1995 he began working with a company as a programmer. In December 2006, he was informed that his services were no longer required.

72Following this he began to "borrow" money from the Oakville Minor Baseball Association. His financial situation did not improve however. In 2008 he sold his home because he could no longer afford it. He continued to take money from the Association.

73Mr. Stirling had moved in with his girlfriend in 1977, marrying her in March 1980. They had two sons and two daughters. They separated in 2004.

74He became involved with minor baseball in Oakville after two of his children began playing the sport and Mr. Stirling volunteered as a coach. Over the years he completed several coaching training courses. In 2004, he volunteered to become a Director and was made Treasurer. He worked 15 to 20 hours per week as a Director as well as continuing to coach. In 2009 he was recognized for organizing tournaments and club registrations and for his work on the Board of Directors.

75Mr. Stirling has not found employment since 2006. He is currently supported by Canada Pension Plan and Old Age Security.

76The reference letters make it clear that he still has the support of his family.

7. FINE INSTEAD OF FORFEITURE

77The relevant parts of section 462.37 of the Criminal Code read as follows:

462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

(3) If a court is satisfied that an order of forfeiture under subsection (1) ….. should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property

(a) cannot, on the exercise of due diligence, be located;

(4) Where a court orders an offender to pay a fine pursuant to subsection (3), the court shall

(a) impose, in default of payment of that fine, a term of imprisonment

(vi) of not less than three years and not exceeding five years, where the amount of the fine exceeds two hundred and fifty thousand dollars but does not exceed one million dollars,

(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other term of imprisonment imposed on the offender or that the offender is then serving.

78There is no issue that Mr. Stirling committed a designated offence and that the $468,166.66 taken by him qualifies as proceeds of crime. In those circumstances section 462.37(1) provides that "the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law".

79However, there is also no dispute that the stolen money, cannot, on the exercise of due diligence, be located. Mr. Stirling spent it. In those circumstances, section 462.37(3) provides that "the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property".

80This latter subsection appears to be permissive rather than mandatory, but the Supreme Court of Canada has made it clear that any judicial discretion here is extremely limited.

81In R. v. Lavigne, Deschamps J. emphasized that forfeiture or a fine instead is not punishment for the offender. Rather it deprives the offender of the proceeds of his crime and deters potential offenders and accomplices. Any discretion is limited by the objective of the provision, the nature of the order and the circumstances in which the order is made.

82There may be circumstances in which exercising such discretion would be appropriate, such as:

a court may face circumstances in which the objectives of the provisions do not call for a fine to be imposed. An example of this would be if the offender did not profit from the crime and if it was an isolated crime committed by an offender acting alone. In such a case, none of the objectives would be furthered or frustrated by a decision not to impose a fine instead of forfeiture. The word "may" allows for an exercise of discretion that is consistent with the spirit of the whole of the provisions in question.

83Ability to pay however is not a factor to be taken into account when determining whether to exercise my limited discretion.

84The purpose of the order would be thwarted if the offender could avoid the fine simply by spending the proceeds of the crime.

85Further, equivalency between the value of the property and the amount of the fine is inherent in the words "instead of". The fine takes the place of forfeiture. For the substitution to be genuine, the value must be equal. The court's discretion applies both to the decision whether or not to impose a fine and to the determination of the value of the property. It must be exercised in light of the evidence, and once this process has been completed, the court may not take the offender's ability to pay into consideration as a basis for deciding either to impose no fine or to reduce the amount of the fine.

86The time allowed for paying the fine and the conditions applicable to the issuance of a warrant of committal are not addressed in this section. The common law principles and the general sentencing provisions therefore apply.

87If the offender does not have the means to pay immediately, he should be given time to pay and the time should be what is reasonable in all the circumstances. So, while I have no discretion to vary the amount of the fine based on ability to pay, the ability to pay may nonetheless be taken into consideration in determining the time limit for payment.

88It is also noted that, when the time allowed for payment of the fine instead of forfeiture has expired, the court asked to issue a warrant of committal may not do so unless it is satisfied that the offender has, without reasonable excuse, refused to pay the fine. Failure to pay because of poverty cannot be equated to refusal to pay.

89In the present case, Mr. Stirling took $468,166.66. He has since repaid $100,000. He is entitled to credit for that in my determination of the appropriate amount of the fine to be imposed instead of forfeiture here. I find however that he is not entitled to credit for the $180,000 given to the Association by the Canadian Imperial Bank of Commerce. Otherwise, Mr. Stirling would not be deprived of that portion of the proceeds of his crime and the very purpose of the provision would be defeated.

90He will be entitled to credit for any future restitution payments that he makes.

8. ANALYSIS

91In reaching my decision as to the appropriate sentence, I have considered both the mitigating factors and the aggravating factors present in this case.

92The aggravating factors may be found in the offence itself. It was an egregious breach of trust. The offence was not particularly sophisticated, but the high level of trust placed in Mr. Stirling by the other directors allowed him to conceal his actions over six years. During that time he processed over 200 improper cheques. He stole a very large sum of money.

93His actions were motivated more by financial need than by a desire for a lavish lifestyle. I qualify that remark, however, by noting that the amount stolen was sufficient to support much more than mere subsistence. Further, Mr. Stirling did not make a very concerted effort to find a new job when he became unemployed. Apparently, it was easier to steal from the Oakville Minor Baseball Association.

94The impact on that Association was horrendous.

95On the other hand, there are also many mitigating factors in this case.

96Mr. Stirling pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse.

97This feeling of remorse has been consistent throughout these proceedings. Mr. Stirling himself informed the Association about his crime. He freely confessed to the police when they became involved. He expressed remorse in the Pre-Sentence Report and before me in court.

98He had no prior criminal record. He committed no offences for the first 55 of his 66 years. This factor is somewhat diminished in value by the fact that he would not have been in a position to commit the offence otherwise.

99His previously good name is gone forever. In this age of the internet and social media, news spreads quickly and bad news even quicker still. As a result of Google and the other internet search engines, the name of Douglas Stirling will forever be tied to the man who stole half a million dollars from the Oakville Minor Baseball Association.

100He has complied with the terms of his release since October 2014.

101He has the support of his family. They assisted him greatly in raising the $100,000 which he repaid.

102In return, he is a caregiver for his mother. She will have to move to a nursing home if he is unable to continue this role.

103Taking all of this into account, denunciation and deterrence are the most important sentencing objectives in this case.

104However, the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence".

105In R. v. Wismayer, Rosenberg J.A. said that there is no rule that a conditional sentence is "never or even rarely available" in cases such as this.

106Counsel has provided me with three such cases where conditional sentences were imposed.

107In addition, I must not ignore the principle of rehabilitation. Mr. Stirling has already taken on responsibility for the care of his mother. Hopefully, the terms contained in his conditional sentence order and his probation order will lead to him assuming even more responsibilities within his community.

108I must also consider the principle of restorative justice. Mr. Stirling has already repaid $100,000 to the Oakville Minor Baseball Association. That is a sizable sum of money that is again available to benefit young baseball players in the community.

109Mr. Stirling has assured me that he is willing and able to make further restitution payments at a rate of $250 every month. This money too will then go to benefit those young ball players. Further, Mr. Stirling is aware of the potential penal consequences should he break his word and not make the payments.

110Needless to say, this money will not be available if I send Mr. Stirling to jail.

111Finally, the terms of the conditional sentence order and the probation order should encourage, if not require, him to make a genuine effort to find gainful employment, thereby enabling him to pay down even more of the stand-alone restitution order and to reduce his obligations created by the fine instead of forfeiture.

9. SENTENCE

112For all of the above reasons, I sentence Mr. Stirling to a conditional sentence of imprisonment for two years less one day, to be served in the community. That will be followed by probation for three years.

113The terms of the conditional sentence of imprisonment will require that Mr. Stirling:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at Unit 704, 155 Navy Street, Oakville, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the full duration of the sentence;

9. during that time he will remain in his residence at all times except:

   a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,

   b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),

   c) for going directly to and from, or, being at school, employment, court attendance, religious services, legal or medical or dental appointments for himself or his mother and other appointments involving his mother, or looking for work, or attending at a criminal court office to pay restitution,

   d) for going directly to and from or being at assessment, treatment or counselling sessions,

   e) he will confirm his schedule in advance with his supervisor setting out the times for these activities,

   f) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.

10. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

11. make reasonable efforts to seek and maintain suitable work;

12. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority with respect to financial matters unless he has notified his employer, in writing and in advance, of his criminal record;

13. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor for financial counselling, life skills, employment counselling or any other program directed by his supervisor;

14. make restitution of $5,750 to the Oakville Minor Baseball Association to be made in installments of not less than $250 per month payable on or before the first day of each month commencing January 1, 2017 and ending November 1, 2019. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim / aggrieved party.

114The terms of the probation will require that Mr. Stirling:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. make reasonable efforts to seek and maintain suitable work;

7. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority with respect to financial matters unless he has notified his employer, in writing and in advance, of his criminal record;

8. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer for financial counselling, life skills, employment counselling or any other program directed by his probation officer;

9. make restitution of $9,000 to the Oakville Minor Baseball Association to be made in installments of not less than $250 per month payable on or before the first day of each month commencing December 1, 2019 and ending November 1, 2022. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim / aggrieved party.

115It should be noted that the $5,750 restitution in the conditional sentence order and the $9,000 restitution in the probation order are to be treated separately from each other. My intention is to require Mr. Stirling to pay restitution totalling $14,750 over the next five years.

116I am also making the following orders.

117Pursuant to section 738 of the Criminal Code, Mr. Stirling is ordered to pay restitution to the Oakville Minor Baseball Association in the amount of $188,166.66. This amount is to be reduced to reflect any restitution payments made by Mr. Stirling pursuant to his conditional sentence order, or pursuant to his probation order.

118Pursuant to section 462.37(3) of the Criminal Code, he is fined $368,166.66 instead of forfeiture. That amount is to be reduced to reflect any restitution payments made by Mr. Stirling pursuant to his conditional sentence order, or pursuant to his probation order or pursuant to the stand alone restitution order.

119He has 10 years in which to pay that fine.

120In default of payment of that fine, he will be imprisoned for three years consecutive to any other term of imprisonment that he is then serving.

121This is a secondary generic offence, and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Stirling of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

122Mr. Stirling will have 90 days to pay the victim fine surcharge.

Released: November 14, 2016

Signed: "Justice D.A. Harris"