Ontario Court of Justice

Date: 2024 01 02 Court File No.: City of Toronto 4860 999 21 21300599-00 4860 999 22 22300164-00

Between: His Majesty The King (Ontario Ministry of Labour, Immigration, Training and Skills)

— And —

Adam Gardin

Before: Justice of the Peace Jennifer Veenboer

Heard: October 25, 2023 Reasons for Sentence released on: January 2, 2024 (electronically)

Counsel: Mr. Neil Dietrich, for the prosecution No appearance by Mr. Adam Gardin, or a representative, for the defendant

Decision of the Court

JUSTICE OF THE PEACE JENNIFER VEENBOER:

[1] For the reasons set out below, Mr. Gardin was sentenced to a penalty of thirty days in custody on each of the eight counts of breach of probation the Court found him guilty of on September 15, 2023. These sentences are to be served consecutively, for a total of 240-days incarceration.

[2] In addition, the Court ordered a one-year continuation of Mr. Gardin’s original probation order, which includes restitution, following his release from custody.

Background

[3] On July 26, 2019, Mr. Gardin was sentenced to three-years imprisonment in a federal facility following his guilty plea to 11 charges involving several victims under the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. At the time, the Court also imposed a two-year probation order, which included restitution terms requiring Mr. Gardin to pay no less than $36,000 each month on the first business day of the month following release from custody, and thereafter, on the first business day of each subsequent month, for the duration of the probation order, or until the total sum of $856,355.00 is sooner paid.

[4] During sentencing in 2019, the learned Justice of the Peace made clear that the restitution amount ordered was based on Mr. Gardin’s ability pay at the time of sentencing. That ability to pay came from the sale of property owned by Mr. Gardin in the United States, producing a profit of more that $1.2 million in Canadian funds [1].

[5] Following an appeal of his federal custodial sentence, which resulted in Mr. Gardin’s in-custody sentence being reduced to two-years, Mr. Gardin was released from federal custody on July 26, 2021, and immediately returned to the United States where he is legally allowed to live and work. [2]

[6] After eight months of having no record of receiving any restitution payments, the Ministry of Public and Business Service Delivery (the Ministry) [3], charged Mr. Gardin with a total of eight counts of willfully failing or refusing to comply with the order to pay restitution in the amount of $36,000 on August 4, 2021, September 2, 2021, October 2, 2021, November 2, 2021, December 2, 2021, January 5, 2022, February 2, 2022, and March 2, 2022, contrary to section 75 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (POA).

[7] Mr. Gardin responded to the charges and after eight court appearances including a judicial pre-trail, a four-day trial was held on May 5 & 17, 2023 and June 14 & 15, 2023.

Evidence at Trial

[8] Mr. Gardin appeared remotely from the United States for the duration of his trial. On May 5, 2023, once satisfied the matters were proper and there was jurisdiction, the Court provided Mr. Gardin with an overview of trial procedure. He confirmed that he wished to proceed as a self-represented defendant and was then arraigned by the Clerk of the Court (the Clerk). When asked to enter a plea, Mr. Gardin entered a plea of not guilty on all eight counts before the court.

[9] The Prosecutor’s case included two witnesses and Mr. Gardin called upon five witnesses to testify on his behalf. During trial, the following evidence was admitted and marked as exhibits on consent of both parties:

• Exhibit 1: certified copy of a Probation Order in the name of Adam Gardin, dated July 26, 2019;
• Exhibit 2: Transcript of Sentencing Proceedings for R. v. 2049425 Ontario Inc, HOA GARCON BUILDING GROUP and ADAM GARDIN, dated February 27, 2019;
• Exhibit 3: Transcript of Reasons for Sentencing in R. v. 2049425 Ontario Inc, HOA GARCON BUILDING GROUP and ADAM GARDIN, dated July 26, 2019; and
• Exhibit 4: Series of Six (6) Text Messages (between the defendant, Adam Gardin, and Correctional Service Canada Parole Officer Theresa Moore), dated between December 27, 2020, to January 7, 2021.

[10] The facts in this case were substantial and went unchallenged by Mr. Gardin. The undisputed facts at trial include Mr. Gardin:

i. did not challenge the charges before the court. ii. knew the amount of restitution ordered including: * how much he was ordered to pay each month, and for how long; * how the payments were to be made; and * to whom the payments were to be made payable and to whom the payments were to be provided. iii. knew his federal custodial sentence ended on July 25, 2021; and that his probation order took effect immediately thereafter on July 26, 2021. iv. knew he was required to either start court ordered restitution payments or file a motion to appeal or vary the probation order, or request leave for an appeal, by August 4, 2021 – the first business day of the first month following his release from custody. v. never filed an appeal or variation of the probation order, nor did he file leave for an appeal of the probation order. vi. led evidence he knew that if he went to the United States after serving his custodial sentence and did not pay restitution, it was unlikely that he would be subject to extradition as charges would be under provincial statute and not under the Criminal Code of Canada. vii. never made a restitution payment of $36,000, nor did he have anyone make a restitution payment of $36,000 on his behalf on August 4, September 2, October 2, November 2, and December 2, 2021; nor on January 5, February 2, and March 2, 2022. viii. never made any restitution payment in any amount, nor did he have anyone make any restitution payment in any amount on his behalf between August 4, 2021, and May 4, 2023 – the day before the start of his trial.

[11] The charges before the court were mens rea offences, and in totality of the evidence received and the unchallenged / undisputed facts at trial, the Court found the prosecution proved Mr. Gardin’s actions were deliberate and that he willfully failed or refused to comply with his probation order beyond reasonable doubt for all eight charges.

[12] Mr. Gardin had the opportunity to raise a defense and was given significant leeway as a self-represented defendant. He focused his examination-in-chief and re-examination of his witnesses, and cross examination of the prosecution’s witnesses, on the following:

• his lifestyle while serving the day parole portion of his federal custodial sentence, including whether there was lavish spending on his part.
• his financial situation, and that he had to borrow money from family to rent accommodations and had family members purchase a used vehicle for him to use while serving his federal sentence on day parole.
• the financial disclosure obligations of his federal day parole order.
• his character, including that he was polite and helpful and did his chores while serving his federal sentence on day parole at St. Lenard’s halfway house.
• his state of mind and his mental health after he was released from a federal institution to day parole, and that he seemed depressed [4]
• his faith, his connection to his faith and access to his faith when living at St. Lenard’s halfway house and how important his faith was to him.
• that he was denied visiting his family in the Unties States while serving his custodial sentence on day parole; and that he was not permitted to attend his son’s bar mitzvah and how hard that was for him.
• the process/procedure of the Federal Parole Board when considering applications to leave the jurisdiction when serving day parole - who prepares an application, and who considers an application to leave.
• his efforts to find work while on day parole; that it was hard to find a job because of COVID-19 and because people (employers) could easily find out about his convictions (internet search).
• if any of the witnesses knew of anyone serving a federal custodial sentence for provincial offences, and that his sentence was unheard of.

[13] Mr. Gardin also questioned witnesses if they knew what it was like for him to be in a (federal) jail and if they knew how hard it was for him.

[14] During the examination-in-chief of Ms. Teresa Moore (one of Mr. Gardin’s federal parole officers and one of his five witnesses at trial), Mr. Gardin raised that fact that he took a job outside of his authorized day parole jurisdiction. He questioned Ms. Moore extensively on why she had a warrant-in-the-first issued for his arrest, did she know what it was like for him to return to federal prison, and did she know how hard it was to be in segregation for three months?

[15] Ms. Moore’s responses to Mr. Gardin’s questions were clear and to the point. She testified that he knew the terms of his federal day parole prevented him from leaving the jurisdiction without authorization [5], and that the warrant-in-the-first was issued after she confirmed Mr. Gardin was no longer in the authorized area.

[16] None of the testimony from his five witnesses raised a defence of any kind. Despite the guidance provided by the Court, Mr. Gardin chose not to challenge any of the evidence submitted by the prosecution including the exhibits. He chose not to dispute or challenge relevant key testimony of the prosecution’s witnesses or challenge the prosecution’s case. He chose not to challenge the charges before the Court, and he chose not to testify, which was his right.

[17] Instead, Mr. Gardin chose to raise as evidence that he willfully violated his day parole conditions and was incredulous during trial that his parole officer would enforce the consequence of not complying.

[18] Furthermore, Mr. Gardin’s defence was focused solely on himself - tantamount to being the victim. Over 2 days of testimony in his defense can be summed up as how hard it was for him to serve a federal custodial sentence, how unheard of his federal custodial sentence was; how unfair his day parole terms were, how much he was denied and how much he went without. Mr. Gardin led evidence that he willfully refused to comply with his probation order including that he knew that he would likely not be extradited for failure to comply with the order.

[19] In totality of the evidence received at trial, on September 15, 2023, the Court found Mr. Gardin guilty of all eight charges beyond a reasonable doubt with no excuse that would render punishment unfair. The Prosecutor submitted that they would seek a custodial sentence and requested an adjournment to prepare sentencing submission that would include victim impact statements (VIS). Both parties agreed to a sentencing hearing date of October 25, 2023, at 9:00am in courtroom E, at 60 Queen Street West in Toronto Canada.

[20] The Court ordered Mr. Gardin to appear in-person for sentencing. Mr. Gardin responded to the order by saying he would not attend in-person. Before adjourning on September 15, 2023, the Court reiterated the order for Mr. Gardin to appear in-person on October 25, 2023.

Sentencing Hearing

[21] The sentencing hearing for Mr. Gardin was to begin at 9:00am on October 25, 2023, however, Mr. Gardin was not present. The Court ordered a 15-minute recess in the event Mr. Gardin was delayed, and upon return at 9:15am, he still was not present. The Court asked the Clerk to page Mr. Gardin. After no response, the sentencing hearing proceeded by way of ex-parte, pursuant to section 54 of the POA.

[22] The prosecution’s Sentencing Book of Documents was entered as Exhibit 1, and included the following documents:

1. VIS – Karim Hajee
2. VIS – Salima Nanji
3. VIS – Anissa & Greg Harris
4. 2017 Certified Copy – John Dallicardillo Information (2013)
5. 2017 Certified Copy – John Dallicardillo Probation Ordered (2017)
6. 2018 Certified Copy – John Dallicardillo Information (2018)
7. Certified Copy the Probation Order in the name of Adam Gardin, dated July 26, 2019

At the request of the Prosecutor, an additional and separate VIS from Evan and Pam Turner was vetted by the Court, then entered as part of Exhibit 1 for sentencing purposes.

[23] The Prosecutor began their sentencing submission with the reading of two (of four) VIS – one from Mr. Karim Hajee and one from Ms. Salima Nanji, who is Mr. Hajee’s wife. Mr. Karim Hajee and his wife were named as victims in Mr. Gardin’s 2019 sentencing and were awarded restitution, which was never paid.

[24] Mr. Hajee was in-person and read his vetted VIS to the Court as instructed [6]. He shared that he and his family have not recovered from the financial loss they suffered; the family home is still not finished as they ran out of money; he and his family continue to struggle financially and that there are liens on their home because they cannot afford payment to have them removed.

[25] Mr. Hajee also told the Court he suffers from a physical illness call metatarsalgia, which is an inflammation in the feet brought on by stress. While Mr. Hajee continues to receive treatment for this illness, he told the Court the illness has created many emotional and physical hardships, including that he can no longer walk for long periods of time; he cannot be physically active with his four children, and is in excruciating pain daily.

[26] Ms. Namji’s vetted VIS was read by the Prosecutor, and it echoed the financial and emotional impact articulated by Mr. Hajee. Ms. Namji VIS also stated she suffers from hypertension cause by the on-going financial and emotional stress the family has been under, and that she is on medication.

[27] Anissa and Greg Harris and Evan and Pam Turner were also named victims who were awarded restitution in 2019, which was never paid. Their respective VIS were not read to the Court but were admitted into evidence for the purpose of sentencing. These statements tell similar experiences of significant financial losses, ongoing financial hardships, and emotional and physical struggles.

Prosecution’s Submissions on Sentencing

[28] There were two distinct penalties the prosecution sought at sentencing. The first was 30-days custodial sentence for each of the eight counts of breach of probation the Court found Mr. Gardin guilty of on September 15, 2023. This is a maximum jail term available for a breach of probation conviction under section 75 (d) of the POA. Further, the prosecution sought a consecutive custodial sentence, for a total 240-days incarceration.

[29] The second penalty sought by the prosecution was a new two-year probation order pursuant to section 72(1)(b) and 72(4) of the POA, with restitution terms.

Sentencing Options Available

[30] Court’s sentencing options available for each of Mr. Gardin’s eight convictions are found under section 75 (d) of the POA, and may be summarized as follows:

i. a fine of not more than $1000 for each conviction; AND/OR ii. a term of imprisonment for not more than 30 days; AND/OR iii. continue the probation order up-to an additional year, with changes and additions the Court considers reasonable.

Prosecution’s Position – 30-Days Term of Imprisonment (Consecutive Order)

[31] The Prosecutor submitted to the Court that a 30-day custodial sentence for each of the eight convictions was an appropriate sentence not only because it is available under section 75 (d) of the POA, but because there were no mitigating factors for the court to weigh and consider in this matter. The prosecution’s position was that the undisputed facts speak for themselves, that Mr. Gardin led evidence that proved a pattern of willfully not complying with court orders including the terms and conditions of his day parole release, his probation and restitution order and the order to appear in person for his sentencing. It was the Prosecutor’s submission that Mr. Gardin “thumbs his nose at the rules of society” demonstrated by the fact he had no insight in to his 2019 sentence, that his sentence reflected the depths of his offending behavior, that he left a trail of victims behind, and that he attempted to lead evidence that he was somehow the victim.

[32] To support the custodial sentence sought, the Prosecutor also relied on eight breach of probation convictions for Mr. John Dallicardillo, which was submitted by way of Information [7]. It was the prosecution’s position that the 2018 John Dallicardillo matter was comparable and mirrored similar, if not the same, offences this Court found Mr. Gardin guilty of in September 2023.

Prosecution’s Position – Probation as a Sanction

[33] The Prosecutor’s position on probation as a sanction was that the Court cannot exercise the penalty provision to extend the original probation order by one-year pursuant to section 75 (d) of the POA because the original probation order had expired. The Prosecutor submitted that this expiry gives the Court the “freedom to revert back to the general sentencing provisions set out under section 72 of the POA.”

[34] Should the Court impose a new two-year probation order, the Prosecutor submitted that the order should contain the same terms and conditions as Mr. Gardin’s original probation order, including the same total restitution amount, with some payment and administrative modifications.

[35] The modifications submitted by the Prosecutor for the Court’s consideration were:

• Terms 1 & 3 – Update Ministry name and update the Ministry Investigator Lead’s name for purposes of reporting and payment requirements.
• Term 2 – Modify the restitution payment term to require payment of no less than $18,000 on the first business day and $18,000 on the 11th business day of the first month following release from custody, and thereafter, $18,000 on the first business day and $18,000 on the 11th business day of each subsequent month, for the duration of the probation order, or until the total sum of $856,355.00 is sooner paid.

[36] With respect to the proposed Term 2, the Prosecutor submitted that this modified term would assist the Ministry in “understanding just how quickly Mr. Gardin is not paying restitution.” The Court inferred this to mean that stipulating restitution payments twice monthly in the amount of $18,000 would assist the Ministry with monitoring Mr. Gardin’s compliance with the order.

[37] The Court asked for submission on ability to pay and the Prosecutor made no new submission, only referencing the original assets that the crown had proven on the last occasion.

[38] The Court sought clarity from the Prosecutor regarding Term 4 and Term 5 of the original restitution order, and specifically if the prosecution sought to have these included on a new order that was sought. The Prosecutor advised that it was their position that Term 4 and Term 5 of the original order were specific to the underlying offences Mr. Gardin was convicted of in 2019 and therefore had no submissions to make on including these terms. However, the Prosecutor added they would not oppose including Term 4 and Term 5 and would leave it to the Court to decide.

[39] The Prosecutor submitted to the Court that a new two-year probation order was also an appropriate sentence for the Court to impose, stating that Mr. Gardin’s original probation order was an attempt to make his victims whole given their loss, which the Prosecutor submitted may well exceed $1 million when considering ancillaries costs to the victims involved [8].

[40] The Prosecutor did not submit case law or any similar sentence decisions related to ordering a new two-year probation with restitution pursuant to section 72(1)(b) and 72(4), for breach of probation convictions pursuant to section 75 of the POA. Nor did the Prosecutor make any submission to the Court regarding its jurisdiction to impose a new two-year probation order with restitution terms pursuant section 72(1)(b) and 72(4) of the POA.

Sentencing Considerations:

[41] In addition to Exhibit 1– the Prosecution’s Sentencing Book of Documents, and the Prosecutor’s submission at the hearing, the Court was assisted in sentencing by:

i. Viva voce evidence and undisputed facts at trial; ii. Trial Exhibits Marked 1 through 4; iii. Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; iv. Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (CPA); and v. Goals and principles of sentencing and various case law the Court consulted.

[42] The Court agrees with the Prosecutor that there were absolutely no mitigating factors to consider for sentencing purposes, and that the undisputed facts speak for themselves. The prosecution’s overall position on sentencing echoed the Court findings at trial which substantiated the Court’s decision on guilt.

[43] Mr. Gardin did not raise a defense of any kind, and lead evidence that he knew the risk of extradition – that is, extradition was unlikely should he not comply with his probation order. The latter spoke volumes of his intent to abscond from the jurisdiction as soon as possible and from his Ontario court order to pay restitution. There is no doubt Mr. Gardin’s actions were intentional and planned and that he was fully aware and informed of the consequences.

[44] The Court was alive to the goals and principles of sentencing, and that the sentence must be just and reflect the gravity of the offences and moral blameworthiness (R. v. Pellegrini, 2006 ONCJ 297). The latter is a significant aggravating factor this Court gave substantial weight to for sentencing purposes given Mr. Gardin was found guilty of eight mens rea offences (Law Society of Upper Canada v. Tassiopoulos, 2005 ONCJ 442).

[45] Additional aggravating factors that were considered by this Court included the fact that Mr. Gardin was not a first-time offender (R. v. Kirk, 2006 ONCJ 22), he showed no remorse (R. v. Di Franco, 2008 ON SC 879) [9] and took no responsibility for the harms done to the victims of the underlying offences as he never paid restitution as ordered. Mr. Gardin led evidence of his own pattern of failing to comply with court orders and tried to portray himself as the victim - which the Court found egregious.

[46] The Court was aware that for regulatory offences that are of a mens rea nature, it must take a different approach to sentencing given such offences are closer to true crime (R. v. Pellegrini, 2006 ONCJ 297; R. v. Iacono, 2015 ONCJ 609), as stated in R. v. Virk at para 54:

Not all public welfare offences are equal in gravity. Some are more serious than others. Those requiring proof of wrongful intention or knowledge are more serious for sentencing purposes, precisely because the prosecution has proven a guilty mind in addition to the prohibited conduct.

[47] Because Mr. Gardin’s offences fall in to the mens rea category, the Court was invited to impose a sentence of incarceration (R. v. Pellegrini, 2006 ONCJ 297; R. v. Iacono, 2015 ONCJ 609), and/or to consider extending probation as well as imposing a fine.

[48] The Court considered the four VIS entered into evidence at the sentencing hearing. It was clear to the Court that the financial, social, and physical harms experienced by at least six victims of Mr. Gardin’s underlying offences continue to present day. The impact of Mr. Gardin not paying restitution as ordered was treated as an aggravating factor when considering rehabilitation and promoting responsibility as a goal of sentencing (R. v. Pellegrini, 2006 ONCJ 297).

[49] The principle of proportionality and parity were also considered – proportionality whereby the sentence must be proportionate to the both the gravity of the offence and the degree of responsibility of the offender (Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, para. 66 – 68); and parity requiring that the sentence should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances (Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, para. 50, 108).

Analysis – Custodial Sentence

[50] There is no dispute about the gravity of Mr. Gardin’s offences or the substantial degree of Mr. Gardin’s moral blameworthiness. The Prosecutor informed the Court they had difficulty finding case law or similar reported sentencing decisions beyond the certified copy of John Dallicardillo 2018 Information.

[51] In 2018, Mr. Dallicardillo was convicted of eight counts of breach of probation under section 75 of the POA, with six convictions for willfully failing or refusing to pay restitution, and two convictions for willfully failing or refusing to comply with the reporting requirements of his 2017 probation order. Mr. Dallicardillo received a 30-days in-custody sentence for each of his eight convictions.

[52] With respect to the principle of parity, the Court agreed that Mr. Gardin’s 2023 convictions were similar to that of Mr. Dallicardillo’s 2018 convictions. These two individuals are offenders with similar – if not the same – offences committed and under similar circumstances. Furthermore, these two offenders have very similar underlying convictions for offences under the CPA, which resulted in both receiving custodial sentences and probation with restitution orders.

[53] In determining whether Mr. Gardin’s in-custody sentences would be served concurrently or consecutively, the Prosecutor submitted to the Court that it was their understanding that Mr. Dallicardillo was ordered to serve his custodial sentences consecutively, for a total in-custody sentence of 240-days. However, the endorsements on the certified copy of Mr. Dallicardillo 2018 Information was absent this detail and the Court had no sentencing transcript to consider. The Court considered its jurisdiction to order consecutive sentences under section 64 of the POA, which states:

64 Sentences consecutive Where a person is subject to more than one term of imprisonment at the same time, the terms shall be served consecutively except in so far as the court has ordered a term to be served concurrently with any other term of imprisonment. R.S.O. 1990, c. P.33, s. 64.

[54] When applying the principles of proportionality and parity, it was this Court’s opinion that Mr. Dallicardillo’s 2018 custodial sentencing of 30 days for each conviction, was an appropriate sentence for Mr. Gardin, and that he should serve his time consecutively.

[55] Given the number of aggravating factors and undisputed facts, general deterrence was a paramount consideration (R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 (Ont. C.A.). Although for a different crime, as R. v. Ramdass referred to R. v. Roussy, released December 15, 1967 [unreported],

But, in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term deterrent in its widest sense. A sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

This Court saw fit to send a firm message that Mr. Gardin’s conduct has significant and real consequence, that court orders are not optional, and offenders such as Mr. Gardin must, and will, be held accountable.

[56] Because Mr. Gardin clearly did not learn his lesson from his prior custodial sentence and that he was not deterred from continuing to conduct himself in a manner outside the law and in a manner that demonstrated a complete lack of respect for society’s rules and values, the Court felt there was a need to augment specific deterrence. Mr. Gardin must be made to understand that his conduct was not acceptable and that there are consequences for repeat offenders who choose not to abide by court orders – regardless of where they live.

[57] The Court was not of the view that a sentence of incarceration was an adequate penalty on its own given the nature of the offences and degree of Mr. Gardin’s responsibility. Although issuing a fine of not more than $1000 per conviction was another sentencing option available, the Court did not see exercising this sentencing option as appropriate for the same reasons. The Court viewed continuing Mr. Gardin’s probation in addition to incarceration as striking an appropriate balance in-line with the concept of totality and proportionality.

Analysis – Probation as a Sanction

[58] The Court rejected the prosecution’s position that there existed jurisdiction to order a new two-years probation order with restitution under section 72(1)(b) and 72(4) [10] of the POA because the original probation order had expired.

[59] First, the sentencing options available for a breach of probation conviction are found under section 75 (d) of the POA. The Court did not find any sub-clause, or incorporation under section 75(d) of the POA, that would default its authority to consider additional sentencing options for breach of probation under section 72(1)(b) of the POA for any purpose. Further, the Prosecutor made no specific submission on this default authority nor was any case law or sentencing decision(s) provided for the Court’s consideration.

[60] Second, the Court was not satisfied that there was authority to impose a new probation order with restitution for a conviction of breach of probation under s. 72(1)(b) of the POA (emphasis mine)

72 Probation order (1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission, (a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order; (b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or (c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order.

[61] Nothing under section 72(1)(b) incorporates section 75 (d) of the POA to provide for this authority. Further, even if the Court determined it had authority to exercise a sentencing option of imposing a new two-year probation order under section 72(1)(b) and 72(4) of the POA, neither clause/subclause provides for that order to include restitution.

[62] Third, restitution under section 72 of the POA falls under 72(3)(a), which was not part of the Prosecutor’s submission for consideration. Regardless, the Court did not accept it had authority to impose restitution under 72(3)(a) either. That is because the Court interpreted the authority for restitution flows from a conviction under the “Act” which authorizes restitution. Section 72(3)(a) of the POA reads (emphasis mine):

72 Conditions imposed by court (3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order, (a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act; (b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order; (c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or (d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report.

[63] This Court did not convict Mr. Gardin of offences under an “Act” that authorizes restitution, such as the CPA [11]. The Court convicted Mr. Gardin of offences under section 75 of the POA, and the sentencing options under 75(d) of the POA do not include restitution.

[64] Fourth, the Court did not agree with the Prosecutor that because Mr. Gardin’s probation order expired, it cannot exercise the penalty provision to continue Mr. Gardin’s probation order. There is nothing under section 75 (d) which would restrict or limit the Court from exercising this option including if the order had since expired.

[65] In the absence of such qualification, and in the absence of case law or sentencing decisions for the Court to consider, the Court exercised its sentencing authority under section 75 (d) by imposing a one-year extension of Mr. Gardin’s original probation order which includes restitution. The only changes made to the order involved updating the Ministry name (to its current name) and updating the Ministry employee (name), who would be responsible for receiving restitution payments.

[66] Finally, the Court did not modify the monthly payment amount as submitted by the Prosecutor to assist the Ministry in monitoring Mr. Gardin’s compliance. It is the Court’s opinion that the Ministry should have the necessary resources and tools to effectively monitor compliance without requiring the Court’s assistance.

[67] Ordering the continuation of Mr. Gardin’s probation order in addition to imprisonment was determined by the Court an appropriate sentence given Mr. Gardin’s prior convictions, gravity of the offences committed, and the degree of Mr. Gardin’s moral blameworthiness. Further the court considered the ongoing harms experienced by victims named in Mr. Gardin’s 2019 sentencing.

[68] While the Court did not impose a standalone restitution order, restitution was part of Mr. Gardin’s 2019 probation order. The Court considered ability to pay but was alive to the issue that ability to pay is but one consideration and that restitution may be ordered even where there does not appear to be any likelihood of repayment (R. v. Castro, 2010 ONCA 718). With rehabilitation as a sentencing goal, the Court imposed the extension of the 2019 probation with the expectation that Mr. Gardin would accept his responsibility for the on-going harms caused by his underlying offences and non- compliance with the Court ordered probation.

Conclusion & Disposition

[69] Mr. Gardin did not participate in his sentencing hearing and his absence resulted in the Court not receiving submissions from him for sentencing consideration. However, this is not to say that the sentences imposed by the Court would have been different had Mr. Gardin participated. Nor should it be interpreted that because Mr. Gardin did not participate, the Court ordered harsher penalties. The Court believed that the evidence submitted at trial combined with the exhibits entered at both trial and the sentencing proceeding justify the penalties ordered.

[70] On October 25, 2023, the Court sentenced Mr. Adam Gardin to 30 days imprisonment for each of his eight convictions, to be served consecutively, for a total of 240-days custodial sentence; and ordered a one-year continuation of his 2019 probation order.

[71] The sentence imposed was based on the concepts of totality and proportionality, and the Court’s jurisdiction under section 64 and 75 (d) of the POA. Because Mr. Gardin was not before the court a General Warrant of Committal was issued for his arrest on October 25, 2023. His imprisonment will commence when authorities are able to execute the Warrant of Committal, and the continuation of Mr. Gardin’s probation order will commence once his is released from custody.

Released: January 2, 2024 Signed: Justice of the Peace J. Veenboer

[1] &2 Trial Exhibit 3: Reasons for Sentencing in R. v. 2049425 Ontario Inc, HOA GARCON BUILDING GROUP and ADAM GARDIN, dated July 26, 2019

[3] The Ministry of Public and Business Service Delivery was formerly known as the Ministry of Government and Consumer Services, which was the government institution named to receive restitution payments in Mr. Gardin’s probation order of 2019.

[4] There was no medical evidence submitted to the Court regarding Mr. Gardin’s health including mental health. This was not a factor considered by the Court.

[5] This was substantiated by trial Exhibit 4: Series of Six (6) Text Messages (between the defendant, Adam Gardin, and Correctional Service Canada Parole Officer, Theresa Moore), dated between December 27, 2020, to January 7, 2021.

[6] Mr. Hajee was provided a vetted copy of his VIS and was instructed to only read those portions not struck/redacted pursuant to section 722 of the Criminal Code of Canada.

[7] 2018 Certified Copy – John Dallicardillo Information (2018), Tab 6 of Sentencing Hearing Exhibit 1

[8] The Court did not receive evidence of this specified amount of financial loss at trial. It was therefore not considered by the Court for sentencing purposes.

[9] Cases in which imprisonment has been imposed included cases where the conduct was willful as opposed to merely negligent; and situations involving either an apparent lack of remorse on the part of the defendant or where there was “a pattern of failures to comply with regulations” R. v. Di Franco, 2008 ON SC 879.

[10] Section 72(4) pertains to the duration of a probation order, which is no more than two years from the date the order takes effect.

[11] Section 117 of the CPA: If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution. 2002, c. 30, Sched. A, s. 117.