R. v. Enofe
The restitution order was set aside because the trial judge gave insufficient weight to the appellant's realistic future inability to repay $56,000 given his minor role, minimal benefit, immigrant status, lack of family support and poor employment prospects, and because civil remedies remained available to the bank.
Source-derived case information.
- Citation
- 2011 ONCA 653
- Parties
- Respondent: Her Majesty the Queen; Appellant: Andrew Enofe
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 18 October 2011
- Procedural Posture
- Criminal / Appeal From Sentence
- Outcome
- Leave granted. Appeal allowed. Restitution order set aside.
- Legal Topics
- Restitution Order, Ability to Pay, Joint Submission, Sentencing Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Andrew Enofe
Appellant
Procedural Posture
Criminal / Appeal From Sentence
Legal Issues
- 1 Whether the trial judge erred by failing to make sufficient inquiry into the appellant's ability to pay a restitution order
- 2 Whether the restitution order should be set aside because the appellant has no realistic prospect of ever repaying the amount ordered
- 3 What weight should be given to future ability to pay in imposing restitution
Ratio Decidendi
The restitution order was set aside because the trial judge gave insufficient weight to the appellant's realistic future inability to repay $56,000 given his minor role, minimal benefit, immigrant status, lack of family support and poor employment prospects, and because civil remedies remained available to the bank.
Court Disposition
Leave granted. Appeal allowed. Restitution order set aside.
Orders
- Leave to appeal granted
- Appeal allowed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Enofe Collection Decisions of the Court of Appeal Date 2011-10-18 Neutral citation 2011 ONCA 653 Docket numbers C49039 Judges Goudge, Stephen Thomas; Armstrong, Robert Patrick; Rouleau, Paul S. Subject Criminal Decision Content CITATION: R. v. Enofe, 2011 ONCA 653 DATE: 20111018 DOCKET: C49039 COURT OF APPEAL FOR ONTARIO Goudge, Armstrong and Rouleau JJ.A. BETWEEN Her Majesty the Queen Respondent and Andrew Enofe Appellant R. Craig Bottomley, for the appellant Andreea Baiasu, for the respondent Heard and released orally: October 3, 2011 On appeal from the sentence imposed by Justice Sutherland of the Ontario Court of Justice on June 3, 2008. ENDORSEMENT [1] The appellant would fault the trial judge for failing to make sufficient inquiry as to the appellant’s ability to pay a restitution order. We do not agree. This was, after all, a joint submission and the trial judge was aware of the facts now relied on by the appellant. [2] However in our view the trial judge gave insufficient weight to any prospect that the appellant, in these particular circumstances, would in future come to have the ability to repay $56,000. He was a very minor player in the fraud who appears to have received little personal benefit from it. He is an immigrant with no family here or abroad. He is a student in an area of study with very limited gainful employment prospects. In our view, taking these considerations together, it is unrealistic to think the appellant could ever discharge this order. It should also be remembered that if the bank thinks otherwise, civil proceedings are open to it. [3] Leave granted. Appeal allowed. Restitution order set aside. “S.T. Goudge J.A.” “Robert P. Armstrong J.A.” “Paul Rouleau J.A.”