Les principes qui prévalent en matière de dédommagement

Legault c. R., 2008 QCCA 1228 

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[7]               L’ordonnance de dédommagement fait partie du processus de détermination de la peine[2]. Elle émane d’un pouvoir discrétionnaire qui doit être exercé avec circonspection[3].

[8]               En général, une « cour d’appel est assujettie à une norme élevée de retenue à l’égard de la peine imposée par le juge de première instance »[4] et elle ne doit pas « remettre en question la décision du juge qui prononce la peine à moins que celle-ci ne soit manifestement inappropriée » [5].

[9]               L'appelant allègue que l'ordonnance de dédommagement met en péril ses chances de réadaptation et le contraint à demeurer perpétuellement le débiteur d'une obligation qu'il ne pourra jamais exécuter. Le ministère public n’a pas contesté les conclusions de l’appel. Le directeur des poursuites criminelles et pénales écrit :

L’intimée reconnaît que le juge de première instance aurait dû tenir compte des ressources financières du délinquant avant de lui imposer une ordonnance de dédommagement selon l’article 738 du Code criminel et ce, tel que nous l’enseigne les arrêts R. c. Fitzgibbon, 1990 CanLII 102 (CSC), [1990] 1 R.C.S. 1005 et R. c. Zelensky, 1978 CanLII 8 (CSC), [1978] 2 R.C.S. 940.

Alors, imposer trois ordonnances de dédommagement – totalisant un montant de 1 174 499,04 $ à un individu de 21 ans sans emploi, sans actif significatif, sans formation particulière et déjà sujet à trois autres ordonnances de même nature dans des dossiers connexes – ne respecte pas la capacité de payer de l’appelant.

Par conséquent, uniquement pour le motif exposé précédemment et en raison des circonstances particulières de ce pourvoi, le ministère public consent au présent appel et à l’annulation des ordonnances selon l’article 738 du Code criminel émises dans le dossier 605-01-005170-067.

[10]           Les principes qui prévalent en matière de dédommagement sont exposés par l'auteur François Dadour[6] :

1.            L’ordonnance de dédommagement doit être rendue avec circonspection ;

2.            Cette ordonnance fait partie intégrante de la détermination de la peine en ce qu’elle participe à la sanction du contrevenant, lie ce dernier au dédommagement de la victime, le prive du fruit de l’infraction qu’il a commise et facilite la remise en état de la victime ;

3.            Le juge d’instance doit considérer l’objectif visé par le créancier du dédommagement, de même que l’existence de procédures civiles ;

4.            L’ordonnance de restitution n’est pas un substitut à ces procédures civiles ;

[...]

9.      Le dédommagement en double peut être évité par le recours aux juridictions civiles ;

10.   L’ordonnance de dédommagement peut être indiquée lorsqu’un jugement civil est inexécutoire suite à la faillite du débiteur.

[11]           L’auteur ajoute :

Il est à noter que le juge d’instance a le pouvoir de rendre une ordonnance de dédommagement pour un montant inférieur aux dommages causés. En effet et en lien avec un commentaire similaire quant au quantum des amendes, il n’est ni souhaitable ni approprié qu’une ordonnance de dédommagement mette en péril les chances de réhabilitation du contrevenant par la destruction de son patrimoine.[7]

[12]           L’auteur Ruby partage le même avis :

A compensation order which would ruin the offender financially, thus impairing chances of rehabilitation, should not be imposed; neither should one be made where compliance would be particularly onerous or impossible, nor where enforcement would be difficult or impossible. The totality principle applies to the whole of the sentence, including the order of restitution.[8]

[13]           La jurisprudence a également établi que le juge qui rend l’ordonnance de dédommagement doit tenir compte des ressources financières de l’accusé[9], même si la capacité ne doit pas toujours être le facteur déterminant.[10] Comme l'explique le juge Doherty, s'exprimant pour la Cour d’appel de l’Ontario, dans Taylor[11] :

[5] It has been stated many times that restitution is a discretionary order.  It should only be made with restraint and caution and not only in order to avoid putting the victim through the extra legal expense of going to the civil courts or as a substitute for civil procedure.

[6] As stated by Martin J.A., speaking for this court, in R. v. Scherer (1984), 1984 CanLII 3594 (ON CA), 16 C.C.C. (3d) 30 at 38:

It may be that in some cases it would be inappropriate to make a compensation order in an amount that is unrealistic to think that the accused could ever discharge.

[7] In his reasons, the trial judge said:

The only possible way to complete that part of his rehabilitation is through penal consequences.  Because of the magnitude of the crime, the duration of the crime, there is no other way to compensate the victims other than his family, then by a penitentiary term [emphasis added].

[8] He then ordered restitution. The restitution order appears to have been added as an afterthought to permit the victim to avoid the costs of a civil action.  The Crown had not asked for a restitution order.

[9] The relevant factors and objectives to the imposition of a restitution order have been discussed by this court in R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 and R. v. Biegus (1999), 1999 CanLII 3815 (ON CA), 141 C.C.C. (3d) 245.  An order for restitution must also bear some reality to the circumstances of the appellant and must be directly associated with the sentence imposed as the public reprobation of the offence.  In the circumstances of this case, the overriding factor is the means of the appellant.  There is no ability, as noted by the trial judge, to pay even the most minute part of this staggering amount, with no expiry date.  It would kill all hope for the appellant for the future and it would likely impair his chances of rehabilitation.  The order is clearly excessive and futile and the trial judge erred in that regard.

[10 ]It remains open to the victim to take proceedings in the civil court, if so advised.

[Nous soulignons]

 

[14]           En conclusion, une ordonnance de dédommagement doit être rendue avec pondération et circonspection afin de remplir les objectifs et principes de la détermination de la peine soit, plus particulièrement, la réparation des torts, la conscience de la responsabilité, la dénonciation et la dissuasion. Cette ordonnance ne constitue pas le substitut à un recours civil.  Lorsque la capacité de payer est absente, comme en l’espèce, il est déraisonnable de rendre une ordonnance de dédommagement de plus d’un million de dollars. Il importe de souligner que   l’ordonnance de dédommagement survie à la libération d’un failli[12].  En l'espèce, le montant du dédommagement est si excessif que le délinquant ne pourra jamais l'acquitter, ce qui met en péril le principe de réinsertion sociale.

L'ordonnance de dédommagement s'inscrit dans le cadre de l'imposition d'une peine proportionnelle et les principes généraux de détermination de la peine

R. v. Castro, 2010 ONCA 718 

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[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.

L’article 739.1 C.cr. prévoit que les moyens financiers ou la capacité de payer du délinquant n’empêchent pas le Tribunal de rendre une ordonnance de dédommagement

R. c. Lavallée, 2016 QCCA 1655 

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[15]        At the outset, it is useful to note that the Victims Bill of Rights Act[9] has brought amendments to the provisions of the Criminal Code dealing with restitution orders. A new section 739.1 to the Criminal Code now specifically sets out that an offender’s financial means or ability to pay does not prevent a court from making a restitution order. However, this new provision only applies in respect of conduct engaged in on or after its coming into force.[10] Section 739.1 has therefore no bearing on this appeal.

[16]        In The Queen v. Zelensky,[11] a case dealing with what was called a compensation order under then section 653 of the Criminal Code, Chief Justice Laskin identified certain factors to be considered before issuing such an order:

There is, moreover, another important aspect of s. 653 that must be kept in mind. The Court's power to make a concurrent order for compensation as part of the sentencing process is discretionary. I am of the view that in exercising that discretion the Court should have regard to whether the aggrieved person is invoking s. 653 to emphasize the sanctions against the offender as well as to benefit himself. A relevant consideration would be whether civil proceedings have been taken and, if so, whether they are being pursued. There are other factors that enter into the exercise of the discretion, such as the means of the offender, and whether the criminal court will be involved in a long process of assessment of the loss, although I do not read s. 653 as requiring exact measurement. […] What all of this comes to is that I agree with Matas J.A. that, constitutionality apart, an order for compensation should only be made with restraint and with caution.

[Emphasis added]

[17]        That case involved the commission of a theft. The restitution order was initially issued by the sentencing court at the request of the victim, the T. Eaton Company Limited, as a substitute for or reinforcement to the civil proceedings it had initiated against the offender. Laskin C.J. found this to be an inappropriate use of the Criminal Code provision, concluding that it is not proper to seek a restitution order “in terrorem as a substitute for or a reinforcement for civil proceedings”.[12]

[18]        The issue of whether the financial capacity of an offender should be taken into account to refuse a restitution order in a fraud case was subsequently canvassed by the Supreme Court of Canada in Fitzgibbon.[13] That case involved the misappropriation of funds entrusted to a lawyer by his clients. As an integral part of his sentence, the offender was ordered to reimburse the Law Society of Upper Canada the amounts it had paid to partially compensate the offender’s clients. He was also ordered to reimburse a client for that portion of the loss suffered which had not been compensated by the Law Society.

[19]        Since the offender was an undischarged bankrupt, the issue arose as to whether consent had to be obtained from the bankruptcy court before the compensation order could be made. In finding that no such consent was required, Cory J., writing for a unanimous Supreme Court, found that when fraudulent acts are involved, the claims of the victims should be paramount over the offender’s ability to pay. He justified that finding on the provisions of the then Bankruptcy Act (which are still in force today) providing that the eventual bankruptcy discharge of the appellant would not release him from any debt or liability arising out of his fraudulent actions:[14]

On the facts of the present case, such an order was appropriate. Fitzgibbon acknowledged that he had defrauded his clients of the amount agreed to at his trial. The Law Society had compensated the appellant's defrauded clients and was subrogated to their rights against him. Rudolph Gatien was also entitled to the balance defrauded from him for which he had not been compensated by the Law Society. The order was thus appropriate to allow compensation for the Law Society and Gatien.

In summary, it can be seen that compensation orders are an extremely useful part of the sentencing procedure. They are often used in sentencing young persons or first-time offenders who have not committed crimes of violence. Their value cannot be over-emphasized. Much of the efficacy of these orders is the immediacy of their effect. If it is possible, they deserve to be available for consideration in the sentencing of all offenders. It remains only to be determined whether the order could be validly made when the appellant was an undischarged bankrupt at the time of sentencing.

The fact that the appellant is an undischarged bankrupt raises two issues. First, it was recognized in Zelensky that the means of the accused person should be taken into account when a court is considering making a compensation order. However, in the case at bar, the sentencing judge was aware that the appellant was an undischarged bankrupt at the time of the sentencing and nevertheless properly exercised his discretion to make the order. In the Court of Appeal, Martin J.A. carefully considered the words of Laskin C.J. in Zelensky. He concluded that the means of the offender should not in every case be the controlling factor. I agree with that conclusion of Martin J.A.

The appellant was a lawyer who defrauded his clients. He 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 fraudulent acts should be paramount. This seems to be recognized by s. 148 (now s. 178) of the Bankruptcy Act. That section provides that the discharge of a bankrupt does not release him from any debt or liability arising out of a fraudulent act committed by him while acting in a fiduciary capacity. The Bankruptcy Act itself, therefore, permits claims of fraud to survive the discharge of a bankrupt, and the fact that Fitzgibbon is an undischarged bankrupt should not allow him to avoid the imposition of this compensation order as part of his sentence.

[Emphasis added]

[20]        As a result, though the means of the offender is a factor to take into account when deciding to issue a restitution order, that factor has much less weight when restitution is to compensate victims of a fraud carried out by the offender as a trustee or administrator of property of others or as a result of the offender obtaining property or services by false pretences or fraudulent misrepresentation.

[21]        This approach has been followed by numerous Canadian appellate courts.[15]

[22]        In R. v. Castro, Weiler J.A. (as he then was) stated that “in cases involving breach of trust, the paramount consideration is the claims of the victims […] Ability to pay is not the predominant factor”.[16] He summarized the applicable principles as follows:[17]

[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.

[Emphasis added]

[23]        Likewise, in R. v. Johnson, the Alberta Court of Appeal noted that “an offender’s means have limited import in cases of fraud”, adding that “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”.[18]

[24]        This principle was again recently reiterated by the Ontario Court of Appeal in R. v. Wa:[19]

[12] When determining whether to impose a restitution order, the sentencing judge must consider the offender's ability to pay. However, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be imposed even if there does not appear to be any likelihood of repayment: R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 28. As the sentencing judge found, the fraud in this case was a clear breach of trust, which was particularly odious given the charitable nature of the work performed by the victim.

[Emphasis added]

[25]        As for this Court’s decision in Legault, it has no bearing on the issue at hand. That case concerned an order in the amount of $1,174,499.04 against an offender as restitution for setting fire to a house.  Since fraud or breach of trust were not at issue in that case, this Court was compelled to take into account the offender’s capacity to pay under the principles set out in Fitzgibbon. The distinction is important, since in Legault, the offender did not financially benefit from the fire, while in fraud cases, such as the one involving the appellant, the offender personally benefits financially from the offence. As recently noted by Bennett J.A. in R. v. Nanos,[20] a case involving similar facts as Legault, where the offender does not profit financially from the offence, his ability to pay restitution becomes a more relevant factor. Moreover, Legault does not state that inability to pay, as a matter of principle, precludes a restitution order.

[26]        In Bendwell, while the Court did take into account the means of the offender with respect to a restitution order in a context of a fraud, this was in circumstances where civil proceedings had been initiated which would allow the victims to obtain judgment in their favour.[21] As noted by Laskin C.J. in Zelensky, a relevant consideration to a restitution order is whether civil proceedings have been brought against the offender.[22] It is in that context that Bendwell should be understood. Moreover, in that case the offender had been diagnosed with cancer. We do not read Bendwell as contradicting the statement in Fitzgibbon that little weight should be given to the offender’s ability to pay when considering restitution in a fraud case. Rather, Bendwell turns on its own specific facts.

[27]        We conclude from this analysis that the sentencing judge’s decision not to order restitution in this case was based on an error of principle. Indeed, with respect to a judge’s discretion to order restitution in the context of a fraud, the primary consideration is the effect on the victim; the rehabilitation of the offender is a secondary consideration. This does not imply that a restitution order must be issued in all fraud cases; rather, it requires the sentencing judge to pay particular attention to the effects on the victim.

[28]        Where there is no expectation that the victim will ever receive payment pursuant to the restitution order, or where the offender is impecunious and the effect of the fraud on the victim is financially insignificant to that victim taking into account the victim’s entire financial situation, then a sentencing judge may well conclude that a restitution order serves no compelling purpose for the victim and refuse to grant such an order. However, where the effect of the fraud on the victim is significant and there is some expectation, even faint, that the offender may be in a position to eventually comply, in whole or in part, with the restitution order, then the primary consideration must be the effects on the victim and a restitution order should follow.