DATE: 20030916

DOCKET: C36541

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. FELIX SMOLYAR (Appellant)

BEFORE: BORINS, MacPHERSON and CRONK JJ.A.

COUNSEL: Gregory Lafontaine for the appellant Mary Ellen Hurman for the respondent

HEARD: September 16, 2003

E N D O R S E M E N T

[1] In our view, given the facts at the time of the proceedings before Howden J., he made no error in principle in imposing a custodial sentence of fifteen months, together with a restitution order. The custodial sentence, on the facts then known, was fit.

[2] The fresh evidence tendered by the appellant before this court, however, which we admit, establishes that the appellant has made restitution to date in the sum of $103,000 concerning the offences at issue before Howden J. and other offences that were committed within the same general time frame. Thus, the appellant has made significant rehabilitative efforts. Further, he is committed to making full restitution.

[3] Importantly, the fresh evidence also indicates that in August 2001, after the sentencing hearing before Howden J., the appellant entered a plea of guilty on an unrelated fraud charge concerning conduct which occurred one year prior to the conduct forming the subject-matter of the charges before Howden J. In April 2002, Minden J. of the Superior Court of Justice accepted a joint sentencing submission from the Crown and the defence and imposed a conditional sentence of twelve months, which included terms of house arrest, in respect of that charge. By its participation in the joint submission, the Crown recognized that the appellant is an appropriate candidate for a conditional sentence, his incarceration is not required to protect the public, and he is capable of serving a sentence in the community without the risk of reoffending. The appellant subsequently served his twelve month conditional sentence without incident.

[4] In these circumstances, given the unusual and compelling fresh evidence, we are of the view that the appeal should be allowed on the authority of R. v. Levesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 (S.C.C). The custodial sentence imposed by the trial judge is set aside and a conditional sentence of two years less one day is substituted in its stead subject to the same terms as the conditional sentence imposed by Minden J. on April 22, 2002, including house arrest, and the further term that in each year the appellant shall make restitution in the sum of $15,000, at the rate of at least $1,000 per month. The conditional sentence shall be followed by probation for three years during which the appellant shall again be required to make restitution each year in the amount of $15,000 at the rate of at least $1,000 per month. If the Crown and the defence are unable to agree on the remaining terms of the probation order, they may make written submissions concerning same to the Registrar of this court within ten days from the date hereof.

"S. Borins J.A."

"J. C. MacPherson J.A."

"E. A. Cronk J.A."