CITATION: R. v. Wolf, 2008 ONCA 352
DATE: 20080505
DOCKET: C42740
COURT OF APPEAL FOR ONTARIO
CRONK and EPSTEIN JJ.A. and GLITHERO R.S.J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
NIKOLAUS WOLF
Applicant/Appellant
Russell Silverstein, for the applicant/appellant
Roger A. Pinnock, for the respondent
Heard and released orally: April 28, 2008
On appeal from the conviction entered by Justice P. Howden of the Superior Court of Justice on June 23, 2004 and the sentence imposed by Justice Howden on October 13, 2004.
ENDORSEMENT
[1] The appellant was convicted of one count of fraud over $5,000. A second count of fraud over $5,000 was stayed based on R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to eighteen months imprisonment, followed by eighteen months probation, and restitution in the amount of $22,500 was ordered. The appellant appeals his conviction and sentence.
A. The Conviction Appeal
[2] In support of his conviction appeal, the appellant argues that the purpose of the criminal proceedings against him was the collection of a civil debt owed to the victims of his fraudulent conduct, with the result that the proceedings were an abuse of process.
[3] In particular, the appellant submits that, in the course of discussions concerning restitution, it was made clear to him that the real goal of the prosecution was recovery or collection of the debt owed to the complainants and that payment would bring an end to the prosecution. He says that the involved Crown counsel surrendered their obligations and breached their duties as Crown Attorneys by acting, in effect, as counsel for the complainants in attempting to obtain the highest monetary recovery possible from the appellant on account of the value of the services fraudulently obtained by him.
[4] At its core, therefore, the appellant’s contention is that Crown counsel improperly used the power of their office and the spectre of criminal prosecution to enforce the complainants’ demands for restitution. We reject this argument.
[5] There is no dispute that it is an abuse of process to use criminal proceedings for the sole purpose of collecting a civil debt. In this context, Crown counsel on this appeal responsibly acknowledged that the language of certain of the e-mail communications between the Crown counsel involved in the appellant’s case was ill-advised. We agree.
[6] Crown counsel also argues, however, that this is not one of those exceptional cases in which the jurisdiction of this court to prevent an abuse of process should be exercised by allowing the appeal and staying the charges against the appellant. Again, we agree.
[7] In our view, on this record, the appellant has failed to meet the high threshold required for a stay of criminal proceedings based on alleged abuse of process. We are far from satisfied that the sole purpose for the conduct of the criminal proceedings against the appellant was to effect collection of the civil debt owed by him to the complainants, thereby invoking the criminal justice process to realize a civil remedy.
[8] The fresh evidence tendered on appeal by both parties indicates that Crown counsel assigned to the appellant’s case concluded that the charges were appropriate and that a reasonable prospect of conviction existed.
[9] In addition, and importantly, the Crown counsel involved in the challenged resolution discussions testified that while he sought the complainants’ views regarding restitution, he did so in the course of assessing the public interest in determining whether to end or continue the prosecution and in the knowledge that the complainants’ views would not determine the course of the proceedings. He stated that it was his opinion, having regard to the public interest, that resolving the case on the basis of restitution in the proposed amount of $14,000 was not inappropriate, even though that quantum was less than what he viewed as the full value of the appellant’s fraud and the preferred restitutionary amount of $17,000.
[10] Finally, there is no evidentiary support on this record for the appellant’s very serious claim that Crown counsel threatened the appellant – implicitly or otherwise – with continued prosecution and jail if the appellant failed to increase the amount of restitution that he was prepared to pay.
[11] In all these circumstances, we conclude that the record does not demonstrate any improper purpose behind the criminal proceedings or in the conduct of Crown counsel involved in those proceedings. To the contrary, there was clear evidence in support of the allegations of the commission of a criminal offence by the appellant, the sufficiency of which he acknowledges. A coincident effort to realize recovery of the debt owed to the complainants through the mechanism of restitution does not render the criminal proceedings an abuse of process.
[12] The appeal against conviction is therefore dismissed.
B. The Sentence Appeal
[13] With respect to his sentence appeal, the appellant argues that while he has a record for similar offences, it is dated. He submits that the sentencing judge erred by failing to give proper consideration to relevant mitigating circumstances, including evidence of his good character, his involvement in the community and the dependency and ill-health of his wife. He further submits that the sentence imposed is harsh and excessive.
[14] In his reasons for sentence, delivered shortly after final submissions by counsel, the sentencing judge referred to the submissions made as to sentence and applied the appropriate sentencing principles. He specifically recognized the importance of addressing specific and general deterrence in the circumstances of this case. He then reviewed the aggravating and mitigating factors that emerged from the circumstances of this offence and this offender including, expressly, several of the mitigating factors identified by the appellant on appeal.
[15] We see no basis on which to interfere with this sentence. It is within the range for similar offences and reveals no error in principle.
[16] Accordingly, we grant leave to appeal sentence and dismiss the sentence appeal.
“E.A. Cronk J.A.”
“G. Epstein J.A.”
“C. Stephen Glithero R.S.J. (ad hoc)”