Court of Appeal for Ontario

Date: 2017-06-12 Docket: C61620

Judges: Juriansz, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Luigi Antonio Pastore Appellant

Counsel

Alfred S. Schorr, for the appellant

Robert Morin, for the respondent

Heard and released orally: May 30, 2017

On appeal from the sentence imposed on January 20, 2016 by Justice George S. Gage of the Ontario Court of Justice.

Reasons for Decision

[1] Luigi Pastore appeals from a 15-month jail sentence imposed on two counts of making a false statement contrary to s. 16(1)(a) of the Canada Small Business Financing Act, S.C. 1998, c. 36, and three counts of fraud contrary to s. 380(1)(a) of the Criminal Code, R.S.C. 1985, c. 46. He entered pleas of guilty to these offences, which were committed between 2005 and 2008.

[2] In a nutshell, Mr. Pastore exploited the Canada Small Business Financing Program ("CSBFP") sponsored by Industry Canada. Using false documents, he secured loans for his own false business. By creating misleading financial pictures, he secured loans for 7 other business entities. His efforts were extensive. He created false and misleading invoices, false bank statements, a fraudulent S.I.N. card, along with fraudulent Notices of Assessment.

[3] On the strength of Mr. Pastore's fraudulent representations and activities, over $1 million in loans was advanced through the CSBFP. The loss to Industry Canada was $409,000. Mr. Pastore extracted fees to the tune of $192,000 for helping others defraud the Government of Canada. He also obtained $100,000 through his own company. At the time of sentencing, no restitution had been made. Restitution has still not been made.

[4] In careful and detailed written reasons, the sentencing judge reviewed the circumstances of the offences, the circumstances of Mr. Pastore, the relevant principles of sentencing, and the applicable case law. After reviewing the relevant mitigating and aggravating facts present in the case, the sentencing judge concluded that a conditional sentence order would not sufficiently advance the goals of general deterrence and denunciation. He imposed a sentence of 15 months' imprisonment.

[5] Mr. Pastore appeals his sentence, contending that the sentencing judge erred in failing to impose a conditional sentence order.

[6] We disagree.

[7] The trial judge committed no error in principle, nor was the sentence he imposed manifestly unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The sentencing judge was correct to approach this case as a large-scale fraud in which the sentencing principles of general deterrence and denunciation are paramount. He recognized the mitigating value of Mr. Pastore's guilty plea and his lack of a criminal record. However, these mitigating factors were overwhelmed by the aggravating factors in this case, which included: (a) the level of sophistication involved; (b) the offences were committed over a 3-year period; (c) there were 8 discrete fraudulent plans; and (d) the main victim was the Government of Canada.

[8] While leave to appeal is granted, the appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."