Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240412 DOCKET: COA-23-CR-0431

Miller, Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jerry Revolus Appellant

Counsel: Robert Tomovski, for the appellant Benjamin Lerer, for the respondent

Heard: April 5, 2024

On appeal from the sentence imposed on April 4, 2023 by Justice Cathy Mocha of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted after pleading guilty to fraud over $5,000 and conspiracy to commit fraud. The appellant was sentenced to an 18 month custodial sentence, followed by 2 years of probation. He only appeals his sentence.

[2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.

[3] Working with several accomplices, the appellant defrauded more than 80 people of over $330,000. The appellant and his accomplices were involved in a scheme wherein they offered people in Toronto an opportunity to make money as couriers. Those who responded were provided with certified cheques, which turned out to be fraudulent, to deposit into their own bank accounts. They were then told to withdraw the amount in cash from their accounts, to keep a portion as a fee, and to deliver the rest to customers. Posing as customers, the appellant’s accomplices would then receive the cash. When people showed reluctance to deposit the cheques or withdraw the money, they and their families were threatened with violence, including with videos of a handgun being cocked and loaded.

[4] The appellant pled guilty to the charges of fraud and conspiracy. The sentencing judge held a Gardiner hearing [1], and made a number of determinations, including that the appellant played a “central role” in perpetrating the fraud, and that he facilitated the procurement of the handgun, knowing that it would be used for the fraud.

[5] One of the appellant’s co-accused, who had also pled guilty, received a conditional sentence of two years less a day.

[6] At the sentencing hearing, the appellant also sought a conditional sentence. In her reasons, the sentencing judge stated that she could not impose a conditional sentence because the appellant resided in Québec and was unable to arrange for a residence in Ontario. Specifically, she stated that a conditional sentence was not available because of the mandatory condition in s. 742.3(1)(d) of the Criminal Code that the offender remain within the jurisdiction of the court, which in this case is Ontario.

[7] The appellant argues that the sentencing judge erred in concluding that a conditional sentence was not available because he resides in Québec. He asks that the 18 month custodial sentence be replaced by a 2 year conditional sentence.

[8] We do not have to decide the legal issue of whether the Criminal Code allows for a conditional sentence imposed by an Ontario court to be served in Québec.

[9] Even if the sentencing judge made an error in opining that she could not impose a conditional sentence that would be served in Québec, an issue we are specifically not deciding, such an error would have no impact on the appropriate sentence in this case. The 18 month custodial sentence imposed by the sentencing judge was very low given the seriousness of the offences; see, for example R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at para. 18, where this court stated that the sentencing range for major fraud is three to five years. While the appellant has no criminal record, appears to have strong ties to his family in Québec and has made rehabilitative efforts, a conditional sentence would not be appropriate in this case. This was a carefully orchestrated fraud scheme that had a devastating impact on its victims, as demonstrated by the victim impact statements. The scheme involved coercion and threats of violence. As found by the sentencing judge, the appellant played a central role in this scheme, and he facilitated obtaining the handgun. In the circumstances, a conditional sentence would be inappropriate and would not meet the evident need for general deterrence and denunciation.

[10] The appellant submits that he should have received a conditional sentence as a matter of parity, given that one of his co-accused received a conditional sentence. However, as found by the sentencing judge, the appellant’s circumstances were different than those of his co-accused. In particular, the sentencing judge noted that the co-accused had entered a guilty plea earlier in the process than the appellant did and that the appellant operated at a higher level of the fraud scheme than the co-accused.

[11] The appellant has introduced the co-accused’s guilty plea and sentencing transcripts as fresh evidence on the appeal. He submits that these transcripts show that the distinctions between the circumstances of the appellant and the co-accused do not justify differing treatment. The Crown does not object to the fresh evidence and we admit it. However, the fresh evidence does not change our view that the appeal should be dismissed. Besides the differences identified by the sentencing judge, the transcript from the proceedings involving the co-accused demonstrates other differences between the circumstances of the appellant and the co-accused that justify differential treatment. First, the co-accused’s sentence was based on a joint submission. Second, it is evident that the Crown supported an 18 month conditional sentence for the co-accused because her guilty plea allowed the court to schedule a joint trial for the remaining perpetrators of the fraud before the Jordan ceiling was reached [2]. Third, the co-accused was sentenced based on agreed facts whereas the appellant’s sentencing required a Gardiner hearing. Finally, the agreed facts did not implicate the co-accused in facilitating the procurement of the handgun and she was described as a “subordinate” rather than a “core member” of the fraud scheme.

[12] We also reject the appellant’s contention that the sentencing judge would necessarily have imposed a conditional sentence if she had concluded that she had authority to do so. In her reasons, the sentencing judge stated that she would have “considered” a conditional sentence if the Criminal Code allowed the appellant to serve a conditional sentence in Québec; she did not state that she would have definitively imposed a conditional sentence. In any event, whether she would have imposed a conditional sentence is irrelevant, given that she made no error in principle that had an impact on the appropriate sentence in this case.

[13] For these reasons, we dismissed the appeal.

“ B.W. Miller J.A. ”

“ L. Favreau J.A.”

“J. Copeland J.A.”

[1] R. v. Gardiner, [1982] 2 S.C.R. 368. [2] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.