R. v. Gour, 2017 ONSC 5397

Court File and Parties

CITATION: R. v. Gour, 2017 ONSC 5397

COURT FILE NO.: CR-10-187

DATE: 20170914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

ADAM GOUR Respondent

COUNSEL:

K. Hull, for the Crown

Adam Gour, In-Person

HEARD: August 14, 2017

REASONS FOR DECISION

DE SA J.

[1]

Background

The Crown has brought an application for a warrant of committal for the imprisonment of Mr. Gour.

2Mr. Gour ran a company that purported to raise money to support children with serious illnesses by using canvassers who solicited donations from the public. He instructed his employees to refer to themselves as volunteers, if asked, when in fact they were paid commissions of 14 to 35 per cent. During the seven month period this scheme operated, the appellant and volunteers collected about $288,000.

3On November 2, 2012, Mr. Gour was sentenced to 15 months imprisonment for fraud over. In addition to the term of imprisonment, Justice McIsaac ordered that Mr. Gour pay a fine of $288,000 in lieu of forfeiture pursuant to s. 462.37(3) of the Criminal Code. In addition, a victim fine surcharge of $37,000 was imposed and Mr. Gour was given three years to pay both the fine and the victim surcharge. That same order specified that Mr. Gour was to serve three years in custody in the case of default.

4The application for a warrant of committal for Mr. Gour was filed in March of 2016. Between then and now, the matter has been remanded numerous times with a view to having Mr. Gour retain counsel at Mr. Gour’s request. Mr. Gour made an application to legal aid for assistance on this matter. That application was denied. Mr. Gour also filed a Rowbotham application. The Rowbotham was also denied. The denials were not based on the financial means of Mr. Gour, but rather, were based on the fact that the application itself lacked sufficient complexity to warrant public funding.

[5]

Positions of the Parties

The Crown has brought the application for a warrant of committal on the basis that Mr. Gour has refused to pay the fine and the victim surcharge. In total, Mr. Gour has only paid $100 towards the fine since its issuance in 2012. In support of its application, the Crown relies on the fact that Mr. Gour has not paid the fine, and also points to various bank statements filed in support of Mr. Gour’s own Rowbotham application suggesting he has made “discretionary” expenditures over the relevant period. In total, since May of 2016, the Crown was able to point to just over $3000 in expenses paid towards items other than “necessities”, including restaurant bills, alcohol bills, and other similar “discretionary” expenditures. While initially seeking that Mr. Gour be incarcerated for 3 years for non-payment of the fine, the Crown has since reconsidered its request, and now asks that Mr. Gour be incarcerated for 60 days which is a term proportionate to the discretionary spending made by Mr. Gour over the relevant period.

6Mr. Gour represents himself on the application. His position is that he has never refused to pay the fine. He says he does not have the resources to pay it. He is currently on Ontario Works, and is unemployed because of a stress disorder. He has made efforts to arrange a payment plan with the Crown to no avail and would still be willing to make such arrangements. He asks that he not be incarcerated.

[7]

The Law

Under s. 734.7(1) of the Code, a warrant of committal for the imprisonment of an offender in default of payment of a fine imposed in lieu of forfeiture shall not be issued unless the offender has the means to pay but has refused to do so without reasonable excuse: see R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 31; and Lavigne, at para. 46. If Mr. Gour does not have the means to pay the fine in lieu of forfeiture, that would constitute a reasonable excuse for non-payment under s. 734.7(1) and he cannot be imprisoned (R. v. Rafilovich, 2017 ONCA 634).

[8]

Analysis

In the circumstances here, I am not satisfied that Mr. Gour has “refused” to pay the fine and accordingly, I am not satisfied that a term of imprisonment is warranted. I do not find the discretionary “expenses” referenced by the Crown here are sufficient to demonstrate a wilful refusal to pay the fine, particularly in the face of Mr. Gour’s limited means. To impose jail in the circumstances here would not be in the interests of justice.

9While I will not impose a term of imprisonment, the fine will remain outstanding, and the Crown is open to pursue its remedies for non-payment by way of civil remedy. Collections can work out a plan to have the debt paid off according to Mr. Gour’s means, and for payment in full should Mr. Gour’s financial circumstances change sometime in the future.

[10]

Conclusion

The application is dismissed.

Justice C.F. de Sa

Released: September 14, 2017

NOTE: This written ruling is to be considered the official version and takes precedent over the oral reasons read into the record on September 11, 2017. If any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.