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Ontario Court of Appeal upheld restitution, a fine in lieu of forfeiture, and the minimum default jail term in a fraud sentence appeal.
Oral s. 724 ruling on fraud counts: the court fixed sentencing facts and held the Ministry was defrauded of about $335,000 across the counts.
The Court concluded that the appellant's limited restitution payments did not justify reducing the custodial sentence and that the three-month sentence for breach, rendered concurrent, was not excessive; however the trial judge erred in calculating the restitution and fine amounts, which the Court corrected to $77,795.00 each, and allowed the appeal only to adjust those monetary orders.
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The Court dismissed the conviction appeal because the trial judge lawfully rejected the appellant's evidence (including isolated findings of fabrication) and independently reviewed Crown evidence which overwhelmingly established guilt consistent with W.(D.); the Court granted leave to appeal sentence but dismissed that appeal because the sentencing judge properly identified and applied relevant aggravating and mitigating factors, did not unlawfully punish the appellant for lack of remorse or by treating age independently as aggravating, did not violate s.11(i) of the Charter, and the proposed…
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The appeal is dismissed because the alleged evidentiary errors were not material to the trial judge's credibility and factual findings, the judge did not commit the specific errors alleged regarding motive or unequal scrutiny, and the sentencing judge properly applied sentencing principles so the 18‑month custodial sentence is fit and not demonstrably unfit.
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Sentencing for a long-running workplace fraud and theft by a dental receptionist. The court rejected a conditional sentence and imposed custody, probation, restitution and a 10-year prohibition order.
The seizure of the wallet to locate identification breached s.8, but the sticky note was not excluded under s.24(2) because the breach was not serious, the evidence was discoverable via a valid warrant for the appellant’s cellphone that would have issued absent the sticky note, and admission would not bring the administration of justice into disrepute; accordingly the convictions and the 12‑month sentence were upheld and the sentence appeal dismissed.
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Appeal allowed: convictions set aside and new trial ordered because the trial judge made a central credibility finding in a procedurally unfair manner and materially misapprehended uncontested evidence (release conditions preventing communication) that was essential to her reasoning, producing a miscarriage of justice; the curative proviso was not applied.
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Read as a whole the trial judge's reasons were sufficient; he permissibly accepted the direct evidence of Solanki as credible and reliable and, having done so, the only reasonable inference was that the appellant committed the fraud, so there was no palpable or overriding error requiring appellate intervention.
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Crown appeal from a conditional sentence for fraud over $5,000 allowed. The Court substituted two years’ imprisonment and declined to decide the Charter issue.
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