DATE: 20031218

DOCKET: C39487

COURT OF APPEAL FOR ONTARIO

LABROSSE, SHARPE and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Benita Wassenaar

for the respondent

Respondent

• and -

ROBERT TAYLOR

Michael H. Gordner

for the appellant

Appellant

Heard: December 12, 2003

Released orally: December 12, 2003

On appeal from the restitution order in the sentence imposed by Justice Steven Rogin of the Superior Court of Justice on January 10, 2003.

BY THE COURT:

[1] The appellant pleaded guilty to a $4 million fraud and was sentenced to two years in the penitentiary. He was also ordered to make restitution in the full amount of the fraud. This appeal deals solely with the restitution order.

[2] The appellant, a pathological gambler, committed the fraud against his employer over a period in excess of 13 years. Many mitigating factors led the trial judge to impose the two-year sentence. The reasons of the trial judge reveal that:

▪ it was inevitable from the evidence that the appellant was destined to become addicted to gambling;

▪ the appellant has taken all available means to rehabilitate himself, reconstructed his marriage, found new employment and re-involved himself in the community;

▪ there is little or no chance of re-offending;

▪ the appellant is teetering on the edge of bankruptcy, even without a $1.5 million assessment for taxes that is being disputed; and

▪ there was no other way to recompense the victim than by a penitentiary term.

[3] The trial judge also recognized that the appellant will never be in a position to repay even the most minute part of the fraud. The restitution order was purely symbolic. However, in order to avoid putting the employer through the extra legal expense of going to the civil courts, the trial judge, without analysis of any of the factors that are relevant to the imposition of a restitution order, ordered restitution for the full amount of the fraud.

[4] At the time of sentencing, the appellant was 56 years of age. He earned approximately $470.00 per week. His wife was working and earning approximately the same amount and she is paying a tax assessment which results from the fraud. They owned a home valued at approximately $110,000 with a mortgage of approximately $76,500.00 requiring monthly payments of $792.00. We were not advised of any change since the sentence was imposed.

[5] It has been stated many times that restitution is a discretionary order. It should only be made with restraint and caution and not only in order to avoid putting the victim through the extra legal expense of going to the civil courts or as a substitute for civil procedure.

[6] As stated by Martin J.A., speaking for this court, in R. v. Scherer (1984), 16 C.C.C. (3d) 30 at 38:

It may be that in some cases it would be inappropriate to make a compensation order in an amount that is unrealistic to think that the accused could ever discharge.

[7] In his reasons, the trial judge said:

The only possible way to complete that part of his rehabilitation is through penal consequences. Because of the magnitude of the crime, the duration of the crime, there is no other way to compensate the victims other than his family, then by a penitentiary term [emphasis added].

[8] He then ordered restitution. The restitution order appears to have been added as an afterthought to permit the victim to avoid the costs of a civil action. The Crown had not asked for a restitution order.

[9] The relevant factors and objectives to the imposition of a restitution order have been discussed by this court in R. v. Devgan (1999), 136 C.C.C. (3d) 238 and R. v. Biegus (1999), 141 C.C.C. (3d) 245. An order for restitution must also bear some reality to the circumstances of the appellant and must be directly associated with the sentence imposed as the public reprobation of the offence. In the circumstances of this case, the overriding factor is the means of the appellant. There is no ability, as noted by the trial judge, to pay even the most minute part of this staggering amount, with no expiry date. It would kill all hope for the appellant for the future and it would likely impair his chances of rehabilitation. The order is clearly excessive and futile and the trial judge erred in that regard.

[10] It remains open to the victim to take proceedings in the civil court, if so advised.

[11] Leave to appeal is granted and the appeal is allowed and the restitution order is set aside.

Released: DEC 18 2003 Signed: “J.-M. Labrosse J.A.”

JML “Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”