Court File and Parties

CITATION: R. v. Sears, 2007 ONCA 259

DATE: 20070411

DOCKET: C44857

COURT OF APPEAL FOR ONTARIO

MacPHERSON, CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

(Respondent)

and

VICTORIA SEARS

(Applicant/Appellant)

Christopher Hicks, for the applicant/appellant

Amanda Rubaszek, for the respondent

Heard: April 10, 2007

On appeal from the sentence imposed by Justice John D. Takach of the Ontario Court of Justice on October 20, 2004.

APPEAL BOOK ENDORSEMENT

[1] The parties are agreed that the restitution order made by the sentencing judge cannot stand in the form made because the amount of the order exceeded the value of the relevant complainant’s loss, contrary to s. 738(1)(a) of the Criminal Code.

[2] There is also no dispute that the quantum of the restitution order should be reduced at least to the amount of $59,496.99. The only issue between the parties is whether the amount of the restitution order should be further reduced, as the appellant contends, to the sum of $43,240. Thus, the amount in issue is $16,256.99.

[3] The appellant asserts that the amount in issue relates to transactions where the goods in question were actually delivered to the customers in issue. The Crown adduced no evidence to establish that this was not the case.

[4] In these circumstances, the quantum of the restitution order should be reduced to the sum of $43,240. The Crown has not met its burden of demonstrating that the additional $16,256.99 relates to the offences for which the appellant was convicted. See R. v. Devgan (1999), 1999 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.) and R. v. Mohamad (2004), 2004 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.).

[5] Accordingly, leave to appeal sentence is granted, the appeal is allowed, and the amount of the restitution order pertaining to Global Payments is reduced to the sum of $43,240. In all other respects, the sentence imposed remains in effect.