Court of Appeal for Ontario

Citation: R. v. Maxwell, 2014 ONCA 316 Date: 20140423 Docket: C57036

Before: MacFarland, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Norman Maxwell Appellant

Counsel: Mark Halfyard and Breana Vandebeek, for the appellant Melissa Adams, for the respondent

Heard and released orally: March 27, 2014

On appeal from the sentence imposed on August 28, 2012 by Justice Douglas K. Gray of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of defrauding the Bank of Montreal of $375,000. The trial judge imposed a sentence of imprisonment in the penitentiary for four years less credit of 100 days for time spent in pre-sentence custody and made two ancillary orders:

i. restitution to the Bank of Montreal of $293,205; and

ii. a fine in lieu of forfeiture in the same amount to be paid within 30 days prior to the appellant’s release from custody, and in default of payment, a further term of imprisonment of four years to be served consecutively to the principal sentence.

[2] At trial, Crown counsel sought a sentence of imprisonment of four and a half to five years as well as the ancillary orders imposed by the trial judge. Counsel who appeared for the appellant to make submissions on sentence, sought a conditional sentence, or in the alternative, a custodial sentence of two years. Counsel acknowledged that the applicable range of sentence was 18 months to three and one-half years. He did not oppose a restitution order and acknowledged the likelihood of an order of a fine in lieu of forfeiture.

[3] In this court, the appellant contends that two components of the sentence reflect error. With two minor exceptions in connection with the fine in lieu of forfeiture, we do not agree.

[4] To take first the term of imprisonment imposed by the trial judge.

[5] A custodial sentence of four years in our view falls within the range of sentence appropriate for the offence and the offender who committed it. The scheme involved several individual transactions that took place over a period of about a month. The amount of money involved, $375,000, was significant. That the bank manager breached bank procedure in the hope that the appellant’s promise of significant future business does not diminish the appellant’s moral blameworthiness. Nor are we persuaded that the trial judge’s consideration of the significant personal consequences for the manager resulted in the imposition of an unfit custodial sentence.

[6] The reasons of the trial judge reflect consideration and application of the controlling sentencing principles including denunciation, deterrence and, secondarily, rehabilitation. The appellant is a mature adult, with related but dated convictions. At the time of sentencing he continued to solicit funds from others for a highly secretive project that the trial judge was satisfied did not exist.

[7] Second, in connection with the fine in lieu of forfeiture, s. 462.37 (1) makes an order of forfeiture mandatory provided the conditions precedent to the operation of the subsection have been met. The appellant was convicted of the designated offence. He obtained $375,000 in cash by fraud. The cash was proceeds of crime. The fraud was committed in relation to that property. Forfeiture of the property and the funds was mandatory.

[8] The trial judge recognized that he had a discretion to impose a fine in lieu of forfeiture. The cash obtained by the fraud could not be located. Counsel agreed that the funds could not be traced. The victimized bank, through its own efforts, recouped some funds, for which the appellant was credited. The imposition of a fine in lieu of forfeiture, in our view, reflects no error in principle.

[9] While we do not consider the imposition of a fine in lieu of forfeiture to reflect error, we are satisfied that the trial judge erred in requiring payment of the fine no later than 30 days prior to the appellant’s release from custody. On the sentencing hearing, counsel agreed, as counsel for the respondent does here, that the appellant should have two years from his release from custody to pay the fine in lieu of forfeiture before the consecutive default term of imprisonment can begin. At trial and here, it is also common ground that the default term should be three years not four. We agree that the formal order imposing the fine in lieu of forfeiture should be amended accordingly.

[10] Leave to appeal sentence is granted. The appeal is dismissed except to the extent described in connection with time to pay the fine in lieu of forfeiture and the term of imprisonment to be served in default of payment.

“J. MacFarland J.A.”

“David Watt J.A”

“G. Pardu J.A.”