Ontario Court of Justice

Date: 2023 09 07 Information Number: 22-47101808

Between:

HIS MAJESTY THE KING

— AND —

THOMAS SWISTON

Before: Justice M.K. WENDL

Heard on: September 6, 2023, Reasons for Sentence Released: September 7, 2023

Counsel: R. Branton........................................................................................... Counsel for the Crown T. Bitton............................................................................................... Counsel for T. Swiston

WENDL J.:

[1] Thomas Swiston pleaded guilty to the charges of assault and assault bodily harm. On July 8th, 2022, during a night of carousing, Mr. Swiston pushed his girlfriend (assault) and punched the good Samaritan who came to her aid (assault bodily harm). The good Samaritan lost a tooth in the altercation. Before this Court is a joint submission for 21 days (enhanced to 32) of pre-sentence custody and two years of probation. Given the gap of 24 years in the accused’s record the sentence is within the range and the Court will accede to it. However, there is a dispute over the amount of restitution to be paid.

[2] The complainant requests 21,075.42 dollars in restitution relating to his lost tooth. He is requesting 8,897.62 dollars for the dental surgeries; 2,715.90 dollars for the time spend arranging the appointments and time spend at the dentist’s office; 2,962.80 dollars for time spent off work due to trauma and 6,500 dollars for future dental work.

[3] Section 738(1)(b) of the Criminal Code allows the Court to impose a restitution order for pecuniary damages incurred because of bodily harm. The section reads as follows:

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable [emphasis added];

[4] A comprehensive report and receipt for the dental treatment received by the complainant was provided to the Court. The complainant’s out of pocket expenses were 1652.40 dollars, the rest was paid by insurance.

[5] No time log was provided for the complainant’s lost time at work due to the dental appointments or the time off he took because of the injury. No doctor’s report was provided confirming he was required to take time from work because of the injury. No pay stub was provided to confirm his income and no doctor’s or dentist’s report was provided to outline future care costs. The complainant simply claims the loss in his victim impact statement.

[6] A restitution order forms part of the sentence and should not simply be an afterthought of the Court when imposing sentence. [1] Building upon the Supreme Court’s decision in Zelensky [2], the Court of Appeal in Devgan [3] outlined the considerations to be taken into account when ordering restitution:

a) An order for compensation should be made with restraint and caution;

b) The concept of compensation is essential to the sentencing process:

(i) it emphasizes the sanction imposed upon the offender; (ii) it makes the accused responsible for making restitution to the victim; (iii) it prevents the accused from profiting from crime; and (iv) it provides a convenient, rapid and inexpensive means of recovery for the victim;

c) A sentencing judge should consider:

(i) the purpose of the aggrieved person in invoking s. 725(1); (ii) whether civil proceedings have been initiated and are being pursued; and (iii) the means of the offender.

d) A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.

e) A compensation order is not the appropriate mechanism to unravel involved commercial transactions;

f) A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.

g) A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;

h) Any serious contest on legal or factual issues should signal a denial of recourse to an order;

i) Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and

j) A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.

[7] In determining the amount of restitution required, the term readily ascertainable in section 738 is at the crux of the analysis. I note the French version of the Criminal Code translates readily ascertainable as déterminée facilement which translates to easily ascertainable. Clearly, this signals to the Court that assessing restitution should not involve a drawn out or complex hearing, it should be clear and obvious. As stated by the Court in Devgan "A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation."

[8] As pointed out by defense counsel, and of equal concern to the Court, there is no documentation to back up the assertion of future care cost or time spent off work and there isn’t even a pay stub to confirm the complainant’s hourly wage. The lack of documentation does not allow for a ready or easy assessment in my view. To put it another way, the lack of documentation simply does not allow me to assess the complainant’s bald assertions of loss in the victim impact statement.

[9] I do note, however, that the Court of Appeal in Eizenga held that an amount can be ordered that reflects the culpability of the offender without the necessity of relying on slavish calculation or a strict tracing of the amount of the offender's enrichment. However, in Eizenga, the accused, who claimed he could not pay the restitution, committed a sophisticated well-planned breach of trust over an extended period that defrauded investors out of $37 million and used the funds to purchase a home, cars and jet skis. Moreover, much of the money was left unaccounted for. The Court was of the view, on the facts of a proven large-scale fraud, that a restitution order, which would survive bankruptcy, would be the only way for the victim of the monetary fraud ever to recover. As the Court reasoned:

. . . the accused was the mastermind of a fraud, the amount of loss to the victims is ascertainable and the accused received some of the defrauded money, but actual tracing of individual investors' funds is not possible due to the manner in which Eizenga dealt with those funds. In such situations, a restitution order may be made in an amount that generally reflects the culpability of the accused without slavishly relying on tracing or a strict calculation of the accused's enrichment (as long as the amount ordered does not exceed the amount lost by the victims). [4]

[10] With respect to the position on restitution in Eizenga and the facts of this case, they are like apples and oranges, and I would be extremely reticent in extending the principle in Eizenga to the facts at bar. In Eizenga, the crime was defrauding people of money, money was the core of the offence and the ultimate amount defrauded was ascertainable. What was not ascertainable was the tracing of those funds. Restitution went to the core of this type of offence. At bar, we are dealing with an assault and compensating for the cost of an injury. Put another way, profit was not at the core of this offence like Eizenga. Here, the lack of documentation simply makes the wage loss or ultimate loss unascertainable. Again, the Court must act with restraint when imposing a restitution order and not delve into a complicated and prolix hearing or analysis. Therefore, I impose a restitution order for 1652.40 dollars which is the clear out-of-pocket expenses of the complainant for his dental operation.

Released: September 7, 2023

Signed: Justice M.K. Wendl

[1] R v Castro, 2010 ONCA 718, 102 OR (3d) 609 at para 22 & 24 [2] R. v. Zelensky, [1978] 2 S.C.R. 940 [3] R. v. Devgan, (1999), 44 O.R. (3d) 161 [4] R. v. Eizenga, 2011 ONCA 113, [2011] OJ No 524 at para 108