DATE: 20010130

DOCKET: C33755

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DONALD MACDIARMID (Applicant/Appellant)

BEFORE: FINLAYSON, LABROSSE and LASKIN JJ.A.

COUNSEL: David M. Porter, for the appellant Miriam Bloomenfeld, for the respondent

HEARD: January 26, 2001

RELEASED ORALLY: January 26, 2001

On appeal from conviction by Justice Donald J. Halikowski on September 27, 1999 and from the sentence imposed on February 2, 2000

E N D O R S E M E N T

[1] The appellant pled guilty to defrauding OHIP of $155,675 by submitting approximately 6,000 false claims. The trial judge imposed an eighteen-month conditional sentence, two years’ probation, 150 hours of community service and a fine of $100,000.

[2] The appellant appeals sentence. The Crown concedes that attaching both a probation order and a fine to a sentence of imprisonment rendered the sentence illegal. The only issue on this appeal is whether the probation order or the fine should stand. The appellant seeks to have the fine deleted from the sentence while the Crown argues in favour of deleting the provision for probation.

[3] Prior to sentencing, the appellant made full restitution. On sentencing, counsel for the appellant argued in favour of a conditional sentence and that the terms of the conditional sentence be continued through probation. The Crown sought a sentence of incarceration in the upper reformatory range. Neither counsel for the appellant nor the Crown made submissions with respect to a fine as part of an appropriate sentence. The trial judge imposed the fine of his own accord.

[4] If restitution had not been made, it would have been reasonable for the trial judge to impose the same conditional sentence and terms of probation and then make a restitution order to complete the appellant’s rehabilitation. There would have been no need to impose a fine.

[5] In the present case, the appellant did not profit from his crime and made full restitution prior to sentencing. There is no need for a fine.

[6] The conditional sentence and the probation order address all the principles of sentencing. Without the fine, the sentence is fit.

[7] The appeal is allowed, only insofar as to delete the fine that was imposed.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “John Laskin J.A.”