DATE: 20041015

DOCKET: C37241

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARK ANTHONY SMITH (Appellant)

BEFORE:

LABROSSE, MACPHERSON and CRONK JJ.A.

COUNSEL:

Howard Borenstein

for the appellant

C. Jane Arnup

for the respondent

HEARD:

October 13, 2004

RELEASED ORALLY:

October 13, 2004

On appeal from the sentence imposed on August 20, 1998 by Justice Bernard T. Ryan of the Ontario Court of Justice.

E N D O R S E M E N T

[1] The appellant was convicted of four offences – conspiracy to commit an indictable offence, fraud over $1000, theft under $1000 and attempted fraud over $1000. He was sentenced to 14 months imprisonment and ordered to make restitution of $40,734. He appeals only the restitution component of the sentence.

[2] The appellant was an employee of the Bank of Nova Scotia. He was a customer service officer whose duties included sending letters to holders of dormant accounts and notifying them of deposits held by the bank. The appellant stole at least 10 of those letters, as well as other documents relating to the dormant accounts, including signature cards, as part of a scheme (with two others) to steal money. The charges related to thefts from one of the accounts. The two other co-conspirators did not have access to the banking information used in the scheme.

[3] One of the co-conspirators pleaded guilty to attempt fraud. He received a fine and was placed on probation for one year. The charges against the other co-conspirator were withdrawn, although he paid back $5000 to the bank.

[4] The appellant contends that the trial judge erred by imposing the full amount of restitution on the appellant; such treatment does not constitute “fairness as between the offenders”.

[5] We disagree. The trial judge said:

[The accused] was involved in a very well thought-out scheme to defraud the bank of a substantial amount of money. There was a breach of trust nature in the proceedings. The fact is that as a result of the inside information that the defendant had access to, he used that information to steal the documents from the bank and then to set afloat this scheme of attacking the dormant account, and in a series of transactions was successful in getting out from the bank a large amount of money.

[6] We agree with this description. The key feature differentiating the appellant from his two co-conspirators is the fact that he was an employee of the bank who abused a position of trust to steal from his employer. In these circumstances, a restitution order against the appellant for the full amount of the bank’s loss was entirely appropriate – irrespective of the dispositions made for the two other co‑conspirators.

[7] The Crown concedes that the trial judge made an error in calculating the bank’s loss. Accordingly, leave to appeal sentence is granted and the appeal is allowed, but only to the extent of reducing the restitution order from $40,734 to $33,733.96.

“J. M. Labrosse J.A.”

“J. C. MacPherson J.A.’

“E. A. Cronk J.A.”