Reasons for Sentence
Court File No.: CR-23-087 (Kingston)
Date: 2025-04-02
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Martin James Stover, Defendant
Appearances:
Courtney Cottle, for the Crown
Michael Woogh, for the Defendant
Heard: 11 March 2025, at Kingston
Reasons for Sentence
Mew J.:
Introduction
[1] On 11 March 2025, Mr. Stover was convicted of two charges of fraud and one charge of obstructing a police officer in the execution of his duty: R. v. Stover, 2025 ONSC 1590.
[2] Mr. Stover used to be an investment adviser. The victims of his fraud were his former clients, Harry and Cheryl Whitehead, and Shawn Voight. Each of them entrusted money to Mr. Stover to invest: $150,000 in the case of the Whiteheads, and $75,000 in the case of Mr. Voight. Mr. Stover never properly accounted for the monies that he said had been invested. And when the Whiteheads and Mr. Voight asked to withdraw their investments, nothing was returned to them.
[3] Harry Whitehead also lent Mr. Stover $68,000, which was never paid back.
[4] In 2020, Mr. Stover was charged with fraud and theft in relation to the Whiteheads. They also commenced a civil action against him, obtaining judgment for the principal amount of $218,000, plus interest and costs.
[5] After being charged in 2020, Mr. Stover remained on bail until 17 August 2022, when he was arrested in relation to the charges involving Mr. Voight. He has been in custody since then. With the exception of fourteen days attributable to a short term of imprisonment for an impaired driving conviction, all of that time, amounting to thirty months and eleven days, represents pre-conviction custody.
[6] I was told that the main reason that Mr. Stover has remained in custody has been his inability to put forward a bail plan. He has no one willing to act as a surety, and no place to live. His former home was sold under a power of sale. His liabilities to numerous creditors far exceed any remaining assets that could satisfy the claims against him.
Circumstances of the Victims
[7] At the sentencing hearing, victim impact statements were presented on behalf of Harry Whitehead, Cheryl Whitehead and Shawn Voight.
[8] The fraud perpetrated by the defendant against the Whiteheads wiped out one third of their combined savings. Mr. and Mrs. Whitehead had retired early due to Mr. Whitehead’s joint issues and Ms. Whitehead’s medical treatment following a cancer diagnosis. They had sold their house in Mississauga and moved to a community near Parry Sound, where they had converted their long time summer cottage into a year round residence. After being defrauded by Mr. Stover, they wondered whether one or both of them would have to go back to work. Mr. Whitehead became anxious, depressed, and increasingly dependent on alcohol, leading, eventually, to a period of hospitalisation for three weeks.
[9] Mr. Voight had, over the years, invested over $1.1 million through Mr. Stover. The economic impact upon him of the fraud may not have been as great as it was for the Whiteheads. Nevertheless, his victim impact statement clearly describes the sense of betrayal and distress at having been defrauded by his trusted adviser.
[10] Shawn and Annette Voight explained how the funds that they had entrusted to Mr. Stover to be invested on his sole advice, which were meant to be an investment to help their children and grandchildren in their future needs, had left them grief stricken beyond words.
Circumstances of the Offender
[11] Mr. Stover has shown no remorse. Even if, as he claims, both he and Mr. Voight were the victims of fraud, I found it disappointing that Mr. Stover was not prepared to accept any responsibility for what happened to Mr. Voight’s investment.
[12] Mr. Stover’s circumstances are, as already alluded to, somewhat dire. His creditors include the Canada Revenue Agency and the Family Responsibility Office. He is divorced. He has one son, who had been living at Mr. Stover’s home, until he had to move out because the house was sold under power of sale. It is unlikely that he will ever be employed again in any sort of capacity that will utilise his skills and experience as a financial adviser. While he would be eligible to start receiving the Canada Pension Plan and, in time, Old Age Security, his future prospects, from an economic perspective, are not promising.
[13] Mr. Stover lost his father in 2018. His mother died in September 2022, a month after Mr. Stover’s arrest and detention. His brother died in December 2023. He has no offences of dishonesty on his criminal record, or any other form of breach of trust. He does, however, have a history of three impaired driving convictions.
[14] Until his arrest, Mr. Stover lived in a nice home. It sold for $564,000. But now the home is gone. He has many creditors. He has no friends and, with the exception of his 23-year-old son, no family. As his counsel put it, Mr. Stover has “lost everything – and it’s his fault”.
Position of the Crown and Defence on Sentencing
[15] Fraud carries a maximum sentence of fourteen years. Obstructing a peace officer, when tried by indictment, carries a maximum sentence of two years’ imprisonment.
[16] The Crown submits that convictions for large scale fraud typically attract penitentiary sentences of between three and five years. Ms. Cottle, for the Crown, indicated that she had given serious consideration to asking for a further year of imprisonment above and beyond the three years and nine months that Mr. Stover would be deemed to have served if he is given enhanced credit of 1.5 days for each day of pre-trial custody. Ultimately, however, she had concluded that time served would be adequate, and that it would be better for Mr. Stover’s victims for him to be out of custody and working.
[17] Accordingly, the Crown’s position is that Mr. Stover should be sentenced to time served (having regard to being credited for enhanced custody) and that going forward, he should be placed on probation for three years with conditions including substantial community service, use of best efforts to obtain employment, and some element of repayment to the Whiteheads and Mr. Voight. In addition, the Crown would ask for a fine of $225,000 in lieu of forfeiture, with ten years to pay, and a restitution order.
[18] Mr. Woogh, for the defence, submits that a sentence of eighteen to twenty-four months would be appropriate (so, for present purposes, time served). He is in agreement that there should be a period of probation and that there should be a restitution order with respect to Mr. Voight, but not in respect of the Whiteheads, given that they already have a civil judgment. He opposes any fine in lieu of forfeiture.
Discussion
[19] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:
a. To denounce unlawful conduct;
b. To deter the offender and others from committing offences;
c. To separate offenders from society when necessary;
d. To assist in the rehabilitation of offenders;
e. To provide reparation for harm done to victims or to the community; and
f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.
[20] As well, a sentence must be proportionate to the gravity of the offence, and the degree of responsibility of the offender. The sentence must also be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances.
[21] In R. v. Burden, 2024 ONCA 880, the court made reference to the “normal three- to five-year range for a large-scale fraud”. In that case, the defendant was a bookkeeper who had engaged in a systematic, sophisticated, calculated and prolonged fraud, misappropriating over $1.2 million from her employer, with “devastating personal and financial consequences for the company and the family that owned it”. In upholding the sentencing judge’s imposition of a five-year term of imprisonment, the Court of Appeal observed that in the circumstances of the case, it would have been open to the trial judge to impose an even longer period of incarceration.
[22] Mr. Stover’s fraud may not be on the same scale as the defendant in Burden. But it nevertheless had a profound impact on its victims. Significantly, he was in a position of trust, and used that position, and his professional standing, to defraud his clients.
[23] Both the Crown and the defence agree that denunciation and deterrence should be significant considerations in the sentencing equation. But it is also important to afford Mr. Stover the prospect of rehabilitation and this, in turn, allows for the possibility that he may return to some form of remunerative employment which would enable him to start the process of reparation.
[24] I am therefore of the view that the time served by Mr. Stover which, with enhanced credit, is now approaching four years, is sufficient in terms of incarceration. He will be sentenced to a notional one further day of incarceration which he is deemed to have served today.
[25] Both the Crown and the defence agree that probation is appropriate. The Crown asks for three years; the defence for two years. The benefit of probation, as I see it, is that being placed under the supervision of a probation officer will enhance Mr. Stover’s prospects for rehabilitation, and provide him with exposure to programming, such as addiction counselling.
[26] While a requirement to make restitution can be included as a condition of a probation order pursuant to sections 731 and 732.1(3)(h) of the Criminal Code, such a term must be “reasonable”. In that regard, in R. v. Scherer (1984), the Court of Appeal stated, at 36-37:
… it is incumbent on the sentencing tribunal before making restitution or reparation a term of probation to satisfy itself that the term is one which can reasonably be performed during the period of probation. To impose restitution or reparation as a term of a probation order which cannot realistically be complied with is to invite a breach of the probation order.
[27] It is a matter of pure speculation as to whether Mr. Stover will be able to make any form of reparation during the next two to three years. If his only source of income is his ability to access Canada Pension Benefits and, potentially, Old Age Security, his income before tax would, his counsel suggests, be no more than $2,000 per month.
[28] Making restitution a term of a probation order would be potentially setting Mr. Stover up to fail. I am not, therefore, inclined to order it.
[29] I do see some benefit in making a community service order. Section 732.1(3)(f) of the Criminal Code allows the imposition of up to 240 hours of community service over a period not to exceed eighteen months. Mr. Stover has been out of circulation for a long time. He literally needs to start all over again when he is released from custody. Undertaking some community service would, in my view, assist with his rehabilitation, as well as provide some reparation to the community, if not to his immediate victims. However, the amount of community service should not be such as to overwhelm his ability to obtain gainful employment. In the circumstances, I am going to order that Mr. Stover undertakes 100 hours of community service over the next twelve months.
[30] The leading authority on restitution as an element of sentencing is the Ontario Court of Appeal’s decision in R. v. Devgan (1999). Labrosse J.A. stated that an order for compensation should be made with “restraint and caution”. It should take into account the importance of an accused assuming responsibility for making restitution to the victim and preventing the accused from profiting from his crime. The means of the accused are also, however, a consideration. The court may also take into account whether civil proceedings have been initiated and are being pursued. The fact that a civil judgment has been obtained, in this case, by the Whiteheads, does not bar the making of a restitution order. The Whiteheads are not, of course, entitled to any sort of double recovery. And while a compensation order is not to be used as a substitute for civil proceedings, such an order may be appropriate where a civil judgment has been rendered unenforceable, whether through bankruptcy or because of the victim’s standing vis-à-vis other creditors of the perpetrator.
[31] I do not regard Mr. Stover’s current lack of financial resources to be determinative of whether an order for restitution should be made. Although he faces an uphill struggle, he is an educated man with a Bachelor of Commerce degree. He is 63 and in apparent decent health.
[32] I am satisfied in all of the circumstances that restitution orders should be made pursuant to s. 738(1) of the Criminal Code in the amounts of $150,000 in favour of Harry Whitehead, and $75,000 in favour of Shawn Voight.
[33] The Crown also seeks a forfeiture order pursuant to s. 462.37(1) of the Criminal Code, which empowers the court to order that property which is proceeds of crime obtained through the commission of a designated offence (which would include fraud) be forfeited to the Crown to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with law. The Crown also asks for a fine in lieu of forfeiture, pursuant to s. 462.37(3) in the amount of $225,000, to be paid within ten years.
[34] I would observe that s. 462.37(4) provides for imprisonment in default of payment of such a fine. In circumstances where the amount of the fine is between $100,000 and $250,000, the court would be required impose a term of imprisonment of between two years and three years if the fine was not paid.
[35] The effect of the Crown’s request for a fine in lieu of forfeiture would be that if Mr. Stover has not come up with $225,000 within ten years, he will go back to jail for a further two to three years.
[36] I am not inclined to make such an order, particularly bearing in mind that Mr. Stover would be 73 by then.
[37] Mr. Stover, you should hang your head in shame. While I recognise that you maintain your innocence, as you are entitled to, I am struck by your lack of recognition of the distress that your conduct has caused to your former clients, who were also friends. Before you became a financial adviser to the Whiteheads, you were Harry Whitehead’s father’s financial adviser. You have had a friendship with that family for 40 years or more.
[38] Similarly, Mr. Voight had been your client for over 30 years. Your brother was married to Mr. Voight’s sister.
[39] You took away a significant portion of the Whiteheads’ retirement nest egg, plunging them into despair, depression and, in Mr. Whitehead’s case, an unfortunate episode with alcohol dependency that resulted in his hospitalisation.
[40] You strung Mr. Voight and his accountant along with your lies and deception. You then tried to obstruct Detective Constable Dan Silver as he tried to investigate what had happened. You had sufficient intelligence to know that you were bound to be discovered. You had dug yourself into a hole that you had little chance of being able to climb out of. Yet you did not have the guts, let alone the common decency to put your hands up and at least provide a rational account to your friends and clients of what had happened.
[41] The fact that you pleaded not guilty and took this matter to trial is not an aggravating factor from a sentencing perspective. But, setting aside the issue of criminal responsibility, from the perspective of moral responsibility and accountability, you showed a shocking disregard for the Whiteheads and Mr. Voight. At a human level, I find your failure to express any sense of responsibility profoundly disappointing.
[42] My sentencing decision is made easier by the substantial agreement between the prosecution and the defence on the factors of incarceration, restitution, community service, and probation.
Decision
[43] Mr. Stover, please stand.
[44] On each of the two charges of fraud and the charge of obstructing a peace officer, you are to serve concurrent sentences of one day of imprisonment, time served, that day being today.
[45] You will be on probation for a period of two years following your release from incarceration. The terms and conditions of your probation will be as follows:
(a) You will keep the peace and be of good behaviour;
(b) You will appear before the court when required to do so;
(c) Within two working days of your release from custody, you must report in person to a probation officer and, thereafter you will be under the supervision of a probation officer or a person authorised by him or her, and will report at such times and places as that person may require;
(d) You will reside at a place approved of by your probation officer and not change that address unless pre-approved by your probation officer;
(e) You will promptly notify the probation officer of any changes of education, employment or occupation;
(f) You will attend for any counselling as recommended by your probation officer, and sign any consents necessary for the monitoring of your progress at such counselling;
(g) You will perform 100 hours of community service work on a rate and schedule to be directed by the probation officer, to be completed within 12 months of the start date to this order;
(h) You will not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Harry Whitehead, Cheryl Whitehead, Annette Voight or Shawn Voight; and
(i) You will not be within 500 metres of any place where you know Harry Whitehead, Cheryl Whitehead, Annette Voight or Shawn Voight to live, work, go to school, or frequent, or any place where you know those persons to be.
[46] There will be restitution orders in favour of Harry Whitehead in the amount of $150,000, and in favour of Shawn Voight in the amount of $75,000.
[47] Mr. Stover, once the paperwork is done, you are free to go.
Mew J.
Delivered (orally and in writing): 2 April 2025