DATE: 20010808 DOCKET: C32022 C32127
COURT OF APPEAL FOR ONTARIO
OSBORNE A.C.J.O., CARTHY and LASKIN JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Lucy Cecchetto For the Respondent
Respondent
- and -
REED NICHOLS
Alan D. Gold For the Appellant
Appellant
Heard: December 12, 2000
On appeal from the conviction on April 7, 1999 ([1999] O.J. No. 5596) and the sentence imposed on April 21, 1999 ([1999] O.J. No. 3955) by Justice Whealy.
LASKIN J.A.:
[1] In September 1995 the appellant Reed Nichols, a young telemarketing salesman in Toronto, placed a “cold call” to Ms. Drusilla Aden, an 82 year old woman living alone in a suburb outside Chicago, Illinois. He telephoned to sell her packages of lottery tickets. They talked several times a week over the next few months, often discussing their mutual interest in investments. Nichols endeared himself to Aden and she came to regard him as a friend. At the end of October 1995 she liquidated most of her foreign investments and sent Nichols $900,000 U.S. Later she sent him an additional $105,000 U.S. She recovered only part of her money.
[2] Aden and Nichols gave different accounts of why she sent him the money. According to Aden, Nichols told her that she had won $13,000,000 in a lottery but had to pay him secretly $1,000,000 in tax and insurance costs to receive the winnings. According to Nichols, Aden retained him to invest her money offshore in return for a fee and a share of profits.
[3] After a trial before Whealy J., Nichols was convicted of defrauding Aden and sentenced to 5 years, 3 months in jail. He appeals both his conviction and his sentence. The Crown cross-appeals on sentence and asks for a fine or a restitution order.
[4] The appellant argued six grounds of appeal against his conviction. These six grounds are:
The trial judge erred in refusing Nichols’ request for an adjournment to retain new counsel partway through the trial;
The trial judge erred in admitting and relying on evidence that Nichols’ activities violated the Ontario Securities Act;
The trial judge misapplied the onus of proof;
The trial judge erred in permitting the Crown to cross-examine Nichols on his affidavit filed in support of a pre-trial Charter motion;
The trial judge erred in his appreciation of the evidence of the Crown witness Cecilia Ursu; and
The trial judge erred in permitting the Crown to call reply evidence.
Background Facts
[5] The Crown’s theory was that Nichols took advantage of a vulnerable and lonely elderly woman. When Nichols first contacted Aden in September 1995 he worked as a telemarketer for Winners Marketing International (“Winners”). Nichols was in his mid-twenties. His job was to solicit American citizens for lottery packages. The company gave him a pre-planned sale pitch. Nichols was an excellent talker. He worked on commission and earned approximately $150,000 annually.
[6] Aden testified that when Nichols first telephoned her he said that he was calling from Winfall International (“WFI”) on Bloor Street in Toronto. WFI had no connection to Winners, his place of employment. WFI had been incorporated by Nichols’ wife for a jewellery wholesale business. It had a post office box and a 1-800 number. The jewellery business never materialized. WFI was used only to receive Aden’s money.
[7] Nichols and Aden talked many times a week over several months. A number of the calls lasted over an hour. They talked about their common interest in investments. Nichols learned that Aden lived alone and was quite wealthy. Aden came to trust Nichols and rely on his advice.
[8] Although Aden had difficulty remembering many of the details of her telephone discussions with Nichols, she testified that on one occasion he told her she had won $13,000,000 in a lottery because of tickets she had bought from WFI. She could not recall buying the tickets. Nichols told her that she had to pay $1,000,000 U.S. in taxes and insurance before she could receive the money and that if she told any one she would lose the lottery winnings.
[9] Aden liquidated most of her investments on October 31, 1995 and sent WFI a cashier’s cheque for $900,000 U.S. Over the next nine months she sent WFI additional cheques totalling $105,000 U.S. That was virtually all of her money. She said that she never received any receipts, documents, accounting or records of trading activity for the money that she sent to Nichols. She also did not receive any of the $13,000,000 in lottery winnings. Nichols did send her, at her request, cheques for $10,000 and $13,000 in December 1995 and January 1996. According to the Crown, he sent her these two cheques to allay any concerns that she might have. The bank manager at Aden’s branch in Illinois, worried that her client may have been the victim of a scam, initiated a complaint that led to the fraud charge against Nichols.
[10] Nichols gave an entirely different account of his telephone calls with Aden. He denied that he had defrauded her. He contended that he and Aden entered into a legitimate arrangement under which he was to manage her money offshore. His evidence was that though he telephoned her to solicit her to buy a lottery package, when he discovered that she was a client of a competitor he stopped his sales pitch. Nonetheless he continued to talk to her, mainly about investments. He told her that he was setting up his own investment fund to manage money offshore. She was unhappy with her stocks and decided to invest with him. She signed a contract authorizing him to manage her money for a ten percent annual fee plus twenty-five percent of any profits. He resigned from Winners in October 1995 to manage Aden’s money. She was his only client.
[11] Nichols acknowledged that Aden sent him a total of $1,005,000 U.S. - $900,000 U.S. at the end of October 1995 and later a series of cheques totalling $105,000 U.S. Nichols transferred Aden’s money offshore to the Turks and Caicos Islands through a corporation he had purchased there, LCC9606 Ltd. He set up a bank account with Barclays Bank for LCC9606, which he alone controlled. Because he had to have a corporate presence in Turks and Caicos, Nichols arranged for Sapphire Nominees Ltd. – a firm that made its business being the corporate office for many “paper companies” – to become a shareholder director and secretary of LCC9606. He was the only other director, the only signing officer and the registered beneficial owner of the money.
[12] Nichols testified that in April 1996 he instructed Sapphire to have Aden named beneficial owner of LCC9606 and that she signed and returned to him a trust declaration authorizing him to trade on her behalf. He said that his copy of the trust declaration went missing the weekend he was arrested. In reply the Crown called Cecilia Ursu, the director and secretary of Sapphire, who testified that she received no instructions from Nichols in April 1996 to transfer ownership to Aden and that Nichols did not request confirmation of the transfer until March 1999. Even apart from the trust declaration however, Nichols claimed that Aden authorized all of the trades that he made.
[13] Nichols did not withdraw any of Aden’s money for his personal use. He did, however, engage in risky and speculative trades, all through the brokerage firm of Deacon Capital. At the time of trial Aden’s money had dwindled to $770,000 U.S. After the Crown closed its case Nichols returned $772,000 U.S. to Aden, leaving a capital shortfall of $209,500.
[14] At the close of the trial on April 8, 1999 the trial judge delivered reasons in which he found Nichols guilty of fraud. I turn now to the grounds for Nichols’ conviction appeal.
A. THE CONVICTION APPEAL
1. Request for an adjournment
[15] Nichols submits that the trial judge erred in refusing him a reasonable adjournment partway through the trial to retain new counsel. Because of the trial judge’s ruling, Nichols was unrepresented by counsel on a day when the Crown called five witnesses. Nichols submits that the trial judge’s ruling deprived him of a fair trial. To put Nichols’ submission in context I will briefly review what occurred.
[16] The trial began on Monday, November 16, 1998. Nichols was represented by counsel. However, he discharged his counsel on the morning of Wednesday, November 18th because he was unhappy with the way she was conducting the defence. By then the Crown had put in part of its case, including the evidence of Aden and her bank manager in Illinois whose complaint led to the charge against Nichols.
[17] After Nichols had discharged his counsel the trial judge told him “I’m not going to abort the trial.” He adjourned the trial until the next day November 19th to permit Nichols to find new counsel but said whether or not he had new counsel the trial would proceed on Friday, November 20th. Nichols replied that he wanted his new counsel properly prepared and that he was still receiving Crown disclosure. However, the trial judge did not alter his position.
[18] On Thursday, November 19th Nichols came to court with a letter from Mr. Norman Chorney, a criminal defence lawyer. In his letter Mr. Chorney said that he would act for Mr. Nichols but he was not available on November 20th. Mr. Chorney wrote that he could proceed on November 27th provided the transcripts of the evidence already taken were available for review. The trial judge, however, refused to adjourn the case for a week and again insisted that it go ahead the next day, November 20th. He commented, “Mr. Nichols you will recall yesterday that I told you not to retain a lawyer who was not going to be prepared to continue tomorrow morning.”
[19] On November 20th Nichols reiterated that Mr. Chorney would be available in a week. The trial judge then ascertained that the Crown intended to call five witnesses, none of whom had direct involvement in the dealings between Nichols and Aden. The trial judge was satisfied that "the accused could cope with that sort of witness quite adequately on his own.” He ordered the case to proceed that day.
[20] The Crown called two witnesses to testify about the incorporation of WFI and the activity in its bank account, one witness to testify about Nichols’ employment with Winners and two police officers. Nichols did not cross-examine any of these witnesses, stating that he was not a lawyer and did not know what to ask.
[21] During the evidence of the two police officers the Crown conducted what amounted to a partial voir dire on the admissibility of a statement made by Nichols. Before the voir dire was completed the Crown decided that because Nichols was unrepresented it would not seek to admit the statement. Nonetheless, the trial judge later admitted part of the statement, holding that everything he had heard suggested that the statement was given voluntarily. He did not give Nichols an opportunity to lead evidence on the voir dire.
[22] The Crown closed its case by the end of the day on Friday the 20th. The trial was then adjourned several times before the case for the defence was called. The two reasons for these adjournments were: first, Mr. Chorney wanted time to prepare a defence forensic accounting report and the Crown wanted time to review the report; and second, Mr. Chorney then discovered he had a conflict requiring him to withdraw from the case and forcing Nichols to retain yet another counsel. The trial was not completed until early April 1999.
[23] This first ground of appeal, however, turns on the trial judge’s ruling refusing to adjourn the trial from November 18 to November 27, 1998 and instead ordering the trial to proceed on November 20th. Two rights are at stake: the accused’s constitutional right to be represented by counsel, a fundamental right zealously protected by the court; and the trial judge’s right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. In reviewing the trial judge’s balancing of these rights, an appellate court should only interfere if the refusal of an adjournment deprived the accused of a fair trial or the appearance of a fair trial. See R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56 (C.A.).
[24] In my view, it would have been preferable had the trial judge granted the adjournment sought by Nichols. Nichols’ request for a one week adjournment was reasonable. Nothing in the record indicated that he was trying to abort the trial or otherwise manipulate the trial process, or refuted his assertion that his decision to retain new counsel was made in good faith. There was no jury and no witnesses that would have been inconvenienced by an adjournment to November 27th. And realistically no lawyer could take on the case on the mere two day reprieve given by the trial judge.
[25] However, I am not persuaded that the trial judge’s ruling deprived Nichols of a fair trial or the appearance of a fair trial. The ruling allowed the Crown to call five witnesses when Nichols was unrepresented. Three witnesses gave evidence that was peripheral and uncontroversial, evidence concerning WFI and its banking records and concerning Winners, Nichols’ former employer. Nichols relied on this evidence in his defence. The two other witnesses, the police officers, gave evidence on the voir dire about a statement made by Nichols. In the part of the statement admitted by the trial judge Nichols acknowledged that he knew Aden and was involved in confidential business dealings with her. This was the very position he advanced at trial. Moreover, the defence never sought to recall any of the five witnesses for cross-examination.
[26] For these reasons I would not interfere with the trial judge’s ruling refusing the adjournment sought by Nichols.
2. Evidence of Ontario Securities Act violations
[27] The Crown claimed that it did not know the defence’s position that Nichols had legitimately arranged to manage and invest Aden’s money. After hearing Nichols’ evidence about this arrangement, the Crown called in reply – without objection from the defence – Tannis McLaren, Special Advisor to the Chair of the Ontario Securities Commission. Ms. McLaren was qualified as an expert in securities regulation. She gave an opinion that the dealings Nichols testified to would be illegal in Ontario absent registration with the Ontario Securities Commission. Nichols was not registered. The trial judge accepted Ms. McLaren’s opinion and relied on it in convicting Nichols.
[28] Nichols submits that Ms. McLaren’s evidence should not have been admitted because it was not proper reply evidence and, more important, it was merely evidence of bad character irrelevant to any fact in issue.
[29] I have serious concerns whether Ms. McLaren’s opinion evidence was properly admissible. Her opinion was not put to Nichols in cross-examination. Moreover, I think Mr. Gold is correct in submitting that the opinion was not relevant to any issue in the case. The question the court had to decide was whether Nichols had defrauded Aden. Whether Nichols failure to become registered amounted to a Securities Act violation was irrelevant to whether he committed fraud. Nonetheless, this was a judge alone trial and I cannot say that Ms. McLaren’s evidence alone caused a miscarriage of justice.
3. The onus of proof
[30] The trial judge was faced with two conflicting versions of what occurred. He was required to resolve this credibility conflict in accordance with the principles in R. v. W.D. (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Nichols submits that the trial judge did not do so. He argues that the trial judge simply weighed one version against the other and then compounded this error by relying on his rejection of Nichols’ version as positive proof of guilt.
[31] Although the trial judge’s reasons do not resolve the credibility conflict according to the three-step formula set out in W.D., taken as a whole the reasons are faithful to the substance of W.D. I am therefore not persuaded that the trial judge misapplied the onus of proof. R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.).
[32] The rationale underlying W.D. is that a trial judge should not simply choose between two competing versions of what occurred because doing so ignores the third alternative, that though the accused’s evidence may not be believed, it may still raise a reasonable doubt. In this case the trial judge did not approach the case by considering whether he should believe Aden’s story or Nichols’ story. His reasons show that he considered whether Nichols’ evidence raised a reasonable doubt and whether the Crown had proved the case to the criminal standard. Before finding Nichols guilty, the trial judge reviewed important aspects of both the Crown and the defence evidence. He made findings on the credibility of all the main witnesses in the case. He was alive to the frailties in Aden’s evidence stating that “her testimony was not perfect but on dominant facts and issues she was firm and unhesitating.” On the other hand, in his view, Nichols’ evidence was rife with “improbabilities and specific contradictions”, many of which the trial judge itemized. In the light of his assessment of all the evidence, the trial judge not only rejected Nichols’ testimony as untrue, but was convinced beyond a reasonable doubt of Nichols’ guilt.
[33] Moreover, I do not think that the trial judge used “the improbability and specific contradictions” in Nichols’ testimony as positive proof of guilt. Nichols relies on the following paragraph at the conclusion of the trial judge’s reasons:
In conclusion the combination of improbabilities and specific contradictions of Nichols’ testimony have convinced me, beyond a reasonable doubt that the testimony of Drucila Aden as to why she sent her money to this accused man is true, and that his testimony is untrue.
[34] The language of this paragraph is admittedly awkward. But it comes after the trial judge had discussed the Crown and defence evidence, made findings on what evidence he accepted, and, importantly, after he had unequivocally rejected Nichols’ evidence. The Supreme Court of Canada and this Court have consistently stated that a trial judge’s reasons should not be put under a microscope, that individual paragraphs should not be examined in isolation from the reasons as a whole, and that trial judges are presumed to know elementary principles of criminal law such as the burden and onus of proof. As my colleague Doherty J.A. said in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.):
Even if the passage set out above was ambiguous and could bear either the interpretation I place on it or the interpretation advanced on behalf of the appellant, I would adopt my interpretation. Trial judges are presumed to know the law: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at pp. 664-65, 89 C.C.C. (3d) 193 at pp. 199-200. That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith (D.A.) (1989), 1989 ABCA 187, 95 A.R. 304 (C.A.) at pp. 312-13, affirmed 1990 99 (SCC), [1990] 1 S.C.R. 991.
… In any event, it is wrong to analyze a trial judge’s reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: R. v. C.(R.) (1993), 1993 142 (SCC), 81 C.C.C. (3d) 417 at p. 418 (Que. C.A.), per Rothman J.A. in dissent at p. 419; dissenting reasons adopted by the Supreme Court of Canada [1993] 2 S.C.R. 226, 81 C.C.C. (3d) 417; R. v. Telmosse (1945), 1944 401 (SCC), 83 C.C.C. 133 at p. 138, [1945] 1 D.L.R. 779 (S.C.C.). Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.
[35] Justice Doherty’s comments apply here. Looking at the reasons as a whole I am not persuaded that the trial judge misapplied the onus of proof. I would therefore not give effect to this ground of appeal.
4. The Crown’s cross-examination of Nichols on his affidavit
[36] During her cross-examination of Nichols, Crown counsel asked him whether he had ever called himself a “security investment manager.” He answered “no”. Crown counsel then tried to impeach Nichols’ credibility by referring to an affidavit Nichols had filed on a pre-trial Charter motion. In that affidavit Nichols had sworn that at the time he was charged he was “a certified investment manager.” At trial Nichols acknowledged that his affidavit evidence was untrue. The trial judge relied on this untruth in rejecting Nichols’ defence.
[37] Defence counsel at trial did not object to the Crown’s use of Nichols’ affidavit to impugn his credibility. On appeal, however, Mr. Gold submits that the trial judge erred in permitting the Crown to cross-examine Nichols on his affidavit. Mr. Gold contends that under s. 13 of the Charter the affidavit could be used to impeach evidence given by the accused on direct examination but not on cross-examination. As the accused’s evidence sought to be impeached – that he had never called himself a security investment manager – was elicited on cross-examination, Mr. Gold submits that the Crown could not rely on the affidavit from the earlier motion.
[38] The distinction argued for by Mr. Gold is not supported by the caselaw. See R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618, R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. Provided the testimony – here an affidavit – from an earlier proceeding is used, as it was here, to impugn the accused’s credibility and not to establish guilt, then whether the evidence sought to be impugned is given on direct examination or on cross-examination matters not. In neither case is s. 13 of the Charter infringed. I would not give effect to this ground of appeal.
5. The evidence of Cecilia Ursu
[39] To respond to Nichols’ evidence that he transferred beneficial ownership of LCC9606 to Aden in April 1996, the Crown called in reply Cecilia Ursu, the director and secretary of Sapphire. Nichols submits that the trial judge erred in his appreciation of her evidence. I disagree.
[40] The trial judge held that Ursu had not received instructions in April 1996 to transfer the beneficial ownership of LCC9606 to Aden and that she was induced by Nichols in March 1999 to backdate documents evidencing the transfer. The trial judge found:
I accept the testimony of Cecilia Ursu that she never received, to her knowledge, any instructions from Nichols by fax in 1996 to change the beneficial ownership of LCC9606 to Aden from himself. When approached by Nichols on 3 March 1999, just four weeks ago, to confirm she had carried out his 1996 instructions, and she asked to see the fax cover sheet, he lied when he responded that it was in the hands of his lawyers. She was induced by Nichols to prepare back-dated minutes for the company books of a resolution to that effect. This evidence directly contradicts an important element of Nichols’ testimony and increases the improbability that Aden would have agreed to the arrangement he claims.
[41] These findings are fully supported by Ursu’s evidence. Nichols first contacted Ursu on March 2, 1999, after the Crown had closed its case. He asked for confirmation that his instructions to her on April 23, 1996, to appoint Aden as director and sole beneficiary had been followed. She said that she had never before received any instructions from anyone about Aden. Nichols then sent her a fax containing his alleged instructions of April 23, 1996 that Aden be appointed director and beneficial owner of the company. The cover sheet of the April 1996 fax was not attached. Ursu asked Nichols for the fax cover sheet showing that he had faxed the instructions in April 1996. Nichols told her that the fax cover sheet was with his lawyer. This statement proved to be untrue and the defence later admitted Nichols’ lawyer did not have the fax cover sheet in his file.
[42] Nonetheless, Ursu did prepare backdated minutes and a trust declaration reflecting the transfer of ownership to Aden in April 1996. She testified that she felt uncomfortable doing so but complied with Nichols’ request out of concern that she had missed the original fax, even though she did not remember ever having received it. The trial judge’s findings show no misappreciation of Ursu’s evidence. I would not give effect to this ground of appeal.
6. The Crown’s reply evidence
[43] In addition to Ursu, the Crown called two other witnesses in reply, Ernest Decater and Tanis McLaren. Nichols submits that the trial judge erred in admitting the evidence of Decater and McLaren because in doing so he allowed the Crown to split its case. I do not agree with this submission.
[44] I have already dealt with McLaren’s evidence. In my view it did not prejudice Nichols, and indeed his trial counsel did not object to her giving evidence in reply. Decater was called to rebut Nichols’ evidence that he gave up selling lottery packages in October 1995 to devote all of his efforts to managing Aden’s money. Decater testified that his late mother regularly received telephone calls from a man named “Ray” and that between April 1995 and July 1996 she wrote cheques to Winners, WFI and “Ray Nickel”. In my view, Decater’s evidence was proper reply evidence but even if it was not, the evidence was relatively insignificant and could not have prejudiced Nichols’ defence.
[45] I would not give effect to this ground of appeal.
B. THE SENTENCE APPEAL
[46] At the time of sentencing Nichols was 29 years old. He had no previous criminal record and the trial judge described him as “articulate and bright.”
[47] The trial judge considered that absent any recovery of money the appropriate sentence would have been seven years. He discounted this figure by 25 per cent in recognition of the substantial recovery of nearly $800,000. He therefore sentenced Nichols to a prison term of five years, three months. Nichols submits that the sentence is unreasonably high. I agree.
[48] The fraud committed by Nichols warranted a significant penitentiary term. Three considerations mentioned by the trial judge supported a substantial sentence.
i. The need to deter and denounce those who prey on the elderly and vulnerable. In the trial judge’s words:
Predators who target the weak, the sick, the elderly and the disadvantaged attract the most public opprobrium simply because such cowardly conduct strikes at the core values of our society: fairness and decency. Where large sums of money are involved and there is no recovery, the principles of public denunciation of the conduct and deterrence to others are the dominant considerations.
ii. Despite the substantial recovery Aden was still defrauded of a large sum of money. With interest the trial judge estimated the loss approximately $372,000 U.S. Moreover, for about three years she did not have any of the money and therefore had no cash flow.
iii. The need to deter cross-border frauds, which are both difficult to uncover and to prosecute. Again in the trial judge’s words:
There is another factor present in this case which marks it as most serious. The facts illustrate a cross-border fraud industry that bedevils the authorities of both U.S.A. and Canada. The cost of international investigations, the overlapping local and international jurisdictions, and the obscurities which borders provide creates a huge thicket from which unscrupulous people pursue their criminal trade. No week passes without some story about someone who thought they had a sure thing but lost their money in a similar scam. Courts, by their sentences, must recognize the difficulty of apprehending and prosecuting such persons as the man before this court. It is another factor to be weighed.
[49] Despite these considerations, five years, three months is excessive, taking into account that Nichols had no previous criminal record, that, in the end, he returned the bulk of the money, and that other seemingly more serious frauds have attracted lesser sentences: R. v. Gray (1995), 1995 18 (ON CA), 76 O.A.C. 387; R. v. Lawson (1995), 1995 743 (BC CA), 56 B.C.A.C. 161; R. v. Rosenberg, [1993] O.J. No. 3260 (Ont. Gen. Div.); R. v. Krawec, [1993] O.J. No. 1012 (Ont. Gen. Div.); R. v. Sahaidak, [1990] O.J. No. 2792 (Ont. H.C.J.) and R. v. Dickhoff (1998), 1998 12386 (SK CA), 130 C.C.C. (3d) 494 (Sask. C.A.). I would reduce Nichols’ sentence to a prison term of four years.
C. THE CROWN’S CROSS-APPEAL ON SENTENCE
[50] The Crown cross-appeals on sentence. It asks for a fine or a restitution order. At trial the Crown sought a fine in the amount of the capital loss, about $210,000 U.S., but not a restitution order. The trial judge refused to order a fine noting that if Nichols defaulted in payment he would receive two to three more years in jail and “I have no intention of sentencing the accused to nine years in prison.”
[51] I would not interfere with the trial judge’s discretion in refusing to impose a fine. A fine would unreasonably affect the proportionality of the sentence. If the fine were paid the trial judge’s sentence of imprisonment would become inappropriate because it was based on only partial restitution, and if it were not paid the total sentence of imprisonment would become unfit. I note as well that Nichols eventually returned to Aden all of her money that he had remaining.
[52] A restitution order might have been appropriate had the Crown requested it at trial. But the Crown did not do so and I do not think that this court should now order restitution on appeal.
[53] I would therefore dismiss the Crown’s cross-appeal on sentence.
D. CONCLUSION
[54] I would dismiss Nichols’ appeal against conviction. I would grant leave to appeal sentence and reduce the sentence to four years imprisonment. I would dismiss the Crown’s cross-appeal on sentence.