Court of Appeal for Ontario

CITATION: R. v. Enofe, 2011 ONCA 653

DATE: 20111018

DOCKET: C49039

Goudge, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Enofe

Appellant

Counsel:

R. Craig Bottomley, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: October 3, 2011

On appeal from the sentence imposed by Justice Sutherland of the Ontario Court of Justice on June 3, 2008.

ENDORSEMENT

[1] The appellant would fault the trial judge for failing to make sufficient inquiry as to the appellant’s ability to pay a restitution order. We do not agree. This was, after all, a joint submission and the trial judge was aware of the facts now relied on by the appellant.

[2] However in our view the trial judge gave insufficient weight to any prospect that the appellant, in these particular circumstances, would in future come to have the ability to repay $56,000. He was a very minor player in the fraud who appears to have received little personal benefit from it. He is an immigrant with no family here or abroad. He is a student in an area of study with very limited gainful employment prospects. In our view, taking these considerations together, it is unrealistic to think the appellant could ever discharge this order. It should also be remembered that if the bank thinks otherwise, civil proceedings are open to it.

[3] Leave granted. Appeal allowed. Restitution order set aside.

“S.T. Goudge J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”