Court of Appeal for Ontario

Citation: R. v. Sandhu, 2008 ONCA 157

Date: 2008-03-03

Docket: C43439

Before: Gillese, Armstrong and Blair JJ.A.

Between:

Her Majesty the Queen Respondent

and

Surjit S. Sandhu Appellant

Counsel: Sayeh Hassan for the appellant Nadia Thomas for the respondent

Heard: February 28, 2008 and released orally

On appeal from sentence imposed by Justice Bruce J. Frazer of the Ontario Court of Justice dated March 31, 2005.

ENDORSEMENT

[1] In this case, the sentencing judge raised, on his own motion and without advance notice to the parties, the possibility of a restitution order. Such an order had not been sought by the Crown.

[2] It may be as a result of this flawed process that an inadequate inquiry was conducted prior to the restitution order being made. There was very little evidence about the appellant’s income. There was none about his expenses. There was no meaningful inquiry into the appellant’s ability to pay a restitution order. There is disagreement between the parties as to the right of the judge to order the appellant to make restitution for the full loss when multiple parties were involved in the fraud, the appellant was the only person to be charged, and the proceeds of the fraud had been split. There is no disagreement, however, that the sentencing judge was required to properly consider the appellant’s ability to pay. We find that he failed in that regard.

[3] Counsel for the appellant advises that the appellant has now served both the conditional sentence and probation parts of his sentence. In addition, we are advised that he has paid in excess of $10,000 in accordance with the restitution order. Given that the appellant appears to have received only $5,000 as his share of the proceeds of the fraud and in light of the errors identified above, we would grant leave to appeal sentence, and allow the appeal. The sentence is varied to reduce the restitution order to $10,858.14, that being the amount the appellant has already paid by way of restitution.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”