Court of Appeal for Ontario

Citation: R. v. Chambers, 2007 ONCA 237

Date: 2007-04-02

Docket: C45284

Between:

Her Majesty the Queen Respondent

and

Denise Chambers Appellant

Before: Moldaver, Gillese and LaForme JJ.A.

Counsel: Philip B. Abbink, for the appellant Jeanette Gevikoglu, for the respondent

Heard: March 29, 2007

On appeal from the sentence imposed on February 28, 2000 by Justice Walter S. Gonet of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] Denise Chambers was convicted of defrauding the Ontario Ministry of Community and Social Services, Family Benefits, of monies in excess of $5000, and sentenced to eighteen months probation and fifty hours of community service. She was also ordered to pay restitution to the Ministry in the amount of $11,435.01, which appears to be the full amount she received in what is commonly known as mothers' allowance while residing with her husband. She appeals, asking that the restitution order be set aside.

[2] In our view, the sentencing judge erred in ordering restitution in the circumstances of this case. The jurisprudence of this court makes it clear that a person's ability to pay a restitution order is a relevant factor that must be taken into consideration. See, for example, R. v. Taylor (2003), 180 C.C.C. (3d) 495. It was an error for the sentencing judge to fail to consider the appellant's financial circumstances and ability to pay.

In this case, that factor alone militates against an order for restitution because the appellant, despite all her hard work and efforts, simply has no ability to pay such an order.

[3] Furthermore and in any event, the sentencing judge failed to consider the impact that such an order would have on the appellant's prospects for rehabilitation. This, too, was an error. Because the appellant is unable to pay the restitution order, she is unable to obtain a pardon. This is having a deleterious effect on her ability to obtain regular and more gainful employment in the field in which she has trained since conviction.

[4] Accordingly, we would grant leave to appeal sentence, allow the appeal, and set aside the order for restitution.