R. v. Castro, 2010 ONCA 718
[21] Section 738(1)(a) governs the making of restitution orders when money has been taken. It gives the court discretion to order the offender to make restitution by paying the victim "an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned . . . where the amount is readily ascertainable".
[22] A restitution order forms part of a sentence. In accordance with general sentencing principles, a restitution order is entitled to deference and an appellate court will only interfere with the sentencing judge's exercise of discretion on the basis of error in principle or if the order is excessive or inadequate: see R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 44 O.R. (3d) 161, [1999] O.J. No. 1825, 136 C.C.C. (3d) 238 (C.A.), at para. 28. [See Note 2 below] [page616]
[23] A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment: R. v. Siemens, 1999 CanLII 18651 (MB CA), [1999] M.J. No. 285, 136 C.C.C. (3d) 353 (C.A.), at para. 10. Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle.
[24] The starting point for any discussion of the objectives and factors that inform a judge's exercise of discretion in making a restitution order is the Supreme Court of Canada's decision in R. v. Zelensky, 1978 CanLII 8 (SCC), [1978] 2 S.C.R. 940, [1978] S.C.J. No. 48. While the decision deals with predecessor legislation, [See Note 3 below] the decision of Laskin C.J.C. nevertheless serves as a blueprint for the considerations to be taken into account in making a restitution order under s. 738(1). These considerations were summarized by Labrosse J.A. in Devgan, at para. 26, as part of a non-exhaustive list:
In Zelensky, Laskin C.J. identified certain objectives and factors that relate to the application of s. 725(1). These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1). 1. An order for compensation should be made with restraint and caution; 2. 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 [page617]
(iv) it provides a convenient, rapid and inexpensive means of recovery for the victim; 3. 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. 4. 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. 5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions; 6. 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. 7. 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; 8. Any serious contest on legal or factual issues should signal a denial of recourse to an order; 9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and 10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.
[26] In general, the omission of a judge to give consideration to a relevant factor gives rise to reviewable error. Thus, the omission of a sentencing judge to give any consideration to the relevant factor of the offender's ability to repay the amount of money taken is an error. A restitution order is not intended to undermine the prospects for rehabilitation of the offender: see, e.g., R. v. Ali, 1997 CanLII 2655 (BC CA), [1997] B.C.J. No. 2516, 98 B.C.A.C. 239 (C.A.); [page618] R. v. Biegus, 1999 CanLII 3815 (ON CA), [1999] O.J. No. 4963, 141 C.C.C. (3d) 245 (C.A.), at paras. 15 and 22; and R. c. Ford, 2002 CanLII 34585 (QC CQ), [2002] J.Q. no 4751, 2 C.R. (6th) 348 (C.Q. crim. & pén.).
[27] Reviewing courts have, however, consistently held that no single factor is itself determinative of whether a compensation order should be granted and that the weight to be given to individual considerations will depend on the circumstances of each case. Those circumstances include two considerations I wish to emphasize: the nature of the offence and, when money has been taken, what has happened to the money.
[28] Insofar as the nature of the offence is concerned, in cases involving breach of trust, the paramount consideration is the claims of the victims: Fitzgibbon, at pp. 1014-15 S.C.R. Ability to pay is not the predominant factor. Indeed, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be made even where there does not appear to be any likelihood of repayment: R. v. Yates, 2002 BCCA 583 (CanLII), [2002] B.C.J. No. 2415, 169 C.C.C. (3d) 506 (C.A.), at paras. 12 and 17.
[29] The decisions in Ali, Biegus and Ford do not involve a breach of trust. [See Note 4 below] By contrast, Fitzgibbon involved an undischarged bankrupt lawyer who acknowledged the amounts he owed. He was ordered to pay compensation to the Law Society of Upper Canada's Compensation Fund and to reimburse a client for the amount by which the client's losses exceeded the maximum allowable claim from the Compensation Fund. Cory J., writing on behalf of the court, stated, at pp. 1014-15 S.C.R.:
[The appellant] used his position to defraud the very persons who had every reason to trust and rely upon him. The fraudulent acts of a lawyer directed against his own clients warranted the imposition of a compensation order even though the lawyer's means at the time of sentencing were minimal. The claims of the victims of the fraudulent acts should be paramount. (Emphasis added)
[30] In imposing a sentence where the offender has used his or her position to commit a breach of trust, the primary considerations are the protection of the public, general deterrence and the repudiation of the conduct of which the offender was found guilty. Relevant factors include the length of time over which the conduct took place, whether the offence was a sophisticated and well-planned scheme, the amount involved [page619] and, most importantly, the impact of the offender's conduct on the victims. The secondary considerations are specific deterrence, rehabilitation and any mitigating circumstances such as a plea of guilty or co-operation with the authorities (in tracing the funds): Scherer, per Martin J.A., at para. 34.
[31] In Sherer, some of the victims had lost most or all of their life savings as a result of the offender's breach of trust. While Martin J.A. reduced the sentence of imprisonment from nine years to seven years, he upheld the compensation order in the amount of $2,173,164.21 to the persons aggrieved. [See Note 5 below] Restitution in that case recognized the victims' needs and at the same time underlined the larger social interest in the imposition of a sanction related to the crime.
[32] Whether or not a breach of trust has occurred, the impact of the crime on the victim is an important factor. In Biegus, the appellant was one of several co-accused convicted of bank theft. The ringleader, Hornett, worked for Intercon Security and as a result had access to the combinations of ATM machines in various Royal Bank branches. Biegus was brought in by Hornett and participated with him in seven thefts. After Biegus pleaded guilty, he co-operated fully with the police and returned $14,000 of the cash. He received a sentence of two years less a day in jail and was ordered to make restitution of the remaining amount stolen in the seven thefts with Hornett, namely, $638,534. The sentencing judge recognized that Biegus did not have the ability to pay this amount but did not say why this fact was irrelevant in imposing the order for restitution. On appeal, the court held that the sentencing judge erred in not addressing this factor and also erred by failing to take into account the potentia lly unfair effect to Biegus of the restitution orders already made against [page620] two other co- accused. The court did not say that Biegus engaged in any breach of trust. The restitution order was excessive and prevented Biegus's rehabilitation. The court noted that the bank's insurer had already repaid the bank $453,387.70. Furthermore, the bank could be in a position to recover a portion of its losses from Hornett. Therefore, the court reduced the amount of restitution to $264,000, the amount Biegus acknowledged he received from the robbery. Where the victim is a large institution, or is likely to have insurance for the amount of the loss, the impact on the victim will obviously be much less than in situations where disabled or elderly persons have lost their ability to earn income and to replace the money taken.
[33] This brings me to a discussion of the second consideration I wish to emphasize, namely, evidence as to what has happened to the money that was taken illegally and how this evidence factors into a determination of the ability to pay. [See Note 6 below]
[34] Ability to pay must take into consideration what disclosure has been made respecting where the money is or has gone. Depriving the offender of the fruits of his crime is one of the overarching goals of making a restitution order: see Working Paper 5: Restitution of the Law Reform Commission of Canada (Ottawa: Information Canada, 1974), cited with approval by Laskin C.J.C. in Zelensky, at pp. 952-53. In cases of theft, robbery, fraud, breach of trust or the like, I see no reason why the court should accept an offender's bald assertion that he or she has no ability to make restitution because the money "is gone" when no evidence is proffered in support of this assertion. When the victims can clearly establish that "the replacement value of the property" under s. 738(1)(a) is the amount of money taken, surely it is the offender asserting that he or she has no ability to make restitution who is in the best position to provide transparency concerning what has happened to that m oney. A bald assertion that the money is gone should be given no weight. Similarly, when the location of the money illegally obtained by the offender is unknown, the sentencing judge is entitled to take that fact [page621] into account with respect to ability to pay in making a restitution order: see, e.g., R. v. Williams, [2007] O.J. No. 1604, 2007 CanLII 13949 (S.C.J.), per Hill J., at para. 41.
[35] To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration. Furthermore, consideration of the ability to pay includes the ability to make payment from the money taken as a source of restitution.
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