CITATION: R. v. Ridley, 2017 ONSC 4672
COURT FILE NO.: CR-17-50000085-00AP
DATE: 20170801
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Anthony Ridley
BEFORE: MOLLOY J.
COUNSEL: J. Carlisle, for the Applicant, Anthony Ridley
N. Golwalla, for the Respondent Crown
HEARD: August 1, 2017
ENDORSEMENT
[1] Anthony Ridley pleaded guilty to various counts of fraud before Oleskiw J. in the Ontario Court of Justice on December 1, 2016. He was sentenced to an 18-month conditional sentence on 9 counts, concurrent, to be followed by three years’ probation, as well as a restitution order and Victim Surcharge. After the time for appeal had passed, Mr. Ridley discovered that the 18-month conditional sentence is an illegal sentence. The maximum sentence under s. 380(1)(b) of the Criminal Code where the Crown proceeds summarily is six months. The 18-month term has also had unanticipated immigration consequences for Mr. Ridley. Accordingly, Mr. Ridley seeks an extension of time to appeal from the sentence and an order varying the sentence.
[2] The Crown consents to an extension of time. I agree that an extension of time is appropriate in these circumstances.
[3] I also agree that the 18-month sentence cannot stand. Counsel for Mr. Ridley proposes nine two-month conditional sentences, consecutive. That would bring the total to 18 months, as originally intended, but would be in conformity with the Criminal Code and not attract immigration consequences. The Crown consents.
[4] The sentence imposed is therefore varied to impose a two-month conditional sentence on each of the nine counts. Mr. Ridley has served 8 months of his sentence already. To reflect the time he has already served, the community service already performed and restitution made, counsel have agreed on the appropriate structure for the sentence going forward. I agree that this is appropriate. Accordingly, the following sentence is imposed:
Count 1: 2-month conditional sentence with curfew (10:00 p.m. – 7:00 a.m.); $100 restitution per month; and 8 hours community service (to be performed with a minimum of 4 hours each month;
Count 2: 2-month conditional sentence, consecutive, with curfew (10:00 p.m. to 7:00 a.m.); $100 restitution per month;
Count 3: 2-month conditional sentence, consecutive; $100 restitution per month;
Count 4: 2-month conditional sentence, consecutive; $100 restitution per month;
Count 5: 2-month conditional sentence, consecutive; $100 restitution per month;
Count 6: Time served (61 days) plus suspended sentence, followed by 3 years’ probation, consecutive to Counts 1-5 (terms of probation order remain in place as ordered by trial judge);
Count 7: Time served (61 days) plus suspended sentence, followed by 3 years’ probation, concurrent to Count 6 and consecutive to Counts 1-5;
Count 8: Time served (61 days) plus suspended sentence, followed by 3 years’ probation, concurrent to Count 6 and consecutive to Counts 1-5; and
Count 9: Time served (61 days) plus suspended sentence, followed by 3 years’ probation, concurrent to Count 6 and consecutive to Counts 1-5.
[5] In addition to the terms set out above, each of the conditional sentences will be subject to the following terms:
a. Statutory Requirements:
i. Keep the peace and be of good behaviour;
ii. Appear before the court when required to do so;
iii. Report as the court directs to a supervisor;
iv. Remain in Ontario unless you have the prior written permission from the court or your supervisor to leave;
v. Notify the court or supervisor in advance of any change of name or address; and
vi. Promptly notify the court or supervisor of any change of employment or occupation.
b. Attend and actively participate in all assessment, counselling, and rehabilitative programs as directed. Sign any releases required to prove participation;
c. No contact or communication, directly or indirectly by any means, with Myra Mills or Cynthia Mills;
d. No contact or communication with anyone at Wynges Auto in Woodbridge; and
e. Not to be within 100 meters of Factory Tire and Rubber business premises in Toronto.
[6] There is no need to interfere with the probation order for three years already imposed, which will commence upon the completion of the conditional sentences. For the sake of clarity, those terms include the following:
• Report to the probation office;
• Attend and actively participate in all assessment, counselling, and rehabilitative programs as directed. Sign any releases required to prove participation;
• No contact or communication, directly or indirectly by any means, with Myra Mills or Cynthia Mills;
• No contact or communication with anyone at Wynges Auto in Woodbridge;
• Not to be within 100 meters of Factory Tire and Rubber business premises in Toronto;
• Complete 150 hours of community service at a rate of not less than 5 hours/month; and
• Restitution instalments of not less than $100 per month ($3600 by end of probation).
[7] The restitution order shall also remain in place, on the same terms: a free standing restitution order for balance owing to Factory Tire after the probationary period of $37,972.06 (calculated on the basis of payments already made and $100 per month for the balance of the conditional sentences and probation period).
[8] The trial judge imposed a $100 Victim Fine Surcharge (VFS) concurrent on all counts. The Court of Appeal has ruled that victim surcharges cannot be concurrent.[^1] Accordingly, I am required to impose a VFS of $100 on each of the nine counts on the indictment, for a total of $900. While I have no discretion with respect to the amount of the VFS, I do have the power to extend the time for payment.
[9] Mr. Ridley lost his employment as a result of these charges. He has been able to secure employment delivering pizzas at an hourly wage of $8, plus tips. He will be 64 years old this coming October. He has managed to pay $100 per month on the restitution order, which must be his first priority. If those payments continue at the rate of $100 per month, he will be 95 by the time it is all paid. He has no assets to otherwise pay either the restitution order or the surcharge. Accordingly, I am extending the time for payment of the VFS to 2050.
MOLLOY J.
Date: August 1, 2017
[^1]: R. v. Tinker, 2017 ONCA 552; R. v. Fedele, 2017 ONCA 554